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Davey, James; Coggon, J. (2006)
Publisher: Cambridge University Press
Languages: English
Types: Article
Subjects:
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    • 2 See Christian Medical Fellowship in Assisted Dying for the Terminally Ill Bill: Volume II Evidence (HL Paper 86-II, 2005), at p. 675: ''Section [10] . . . will also place huge pressure on patients to request early death in order that their families might benefit from insurance money . . .''. Cf., H. Biggs, ''A Pretty Fine Line: Life Death, Autonomy and Letting it B'' (2003) 11 Feminist Legal Studies 291, 298: ''[H]ow can we be certain that a person is acting autonomously when she is clearly motivated by her perception of the needs of others?''.
    • 3 See http://news.bbc.co.uk/1/hi/health/4763067.stm.
    • 4 See Hansard HL Deb. vol. 681 col. 1184 (12 May 2006).
    • 5 The issues concerning the legalisation of euthanasia and physician-assisted suicide have remained in the focus of public debate for some time and will continue to do so, despite the failure of Lord Joffe's Bill. The arguments for and against were previously considered in the Walton Report, Report of the House of Lords Select Committee on Medical Ethics (London 1994). Since then, legalisation of some form of medical killing has been seen in the Netherlands, Belgium, and Oregon. There was also a short-lived statute permitting euthanasia in the Northern Territory in Australia, and some forms of assisted suicide are permissible in Switzerland.
    • 6 The most recent version put before Parliament was the Assisted Dying for the Terminally Ill Bill (9/11/2005, HL), http://www.publications.parliament.uk/pa/ld200506/ldbills/036/ 2006036.pdf. Much of the parliamentary discussion to date centred on the 2004 version of the Bill, which was the subject of a Select Committee report. See http://www.parliament.uk/ parliamentary_committees/lordsassisted.cfm. Although the clauses of the earlier Bill were renumbered, there were no significant changes for the purposes of this article. References are to the 2005 Bill, unless stated otherwise.
    • 7 Ibid., cl. 1 seemed to preclude the extension to active euthanasia.
    • 8 Ibid., cls. 2(2)(b), 2(3)(b), 2(4), and 3.
    • 9 Ibid., cls. 2(2)(d) and 2(3)(d).
    • 10 ''Terminal illness'' was defined in ibid., cl. 13(1) as an inevitably progressive illness that may not be reversed by treatment, and will likely result in the patient's death within six months.
    • 20 See M. Woolf, ''Swiss Suicide Clinic Sees Number of British Clients Rise by 700 per cent''. The Independent, 4 April 2005; M. Horsnell, ''Woman Dies in Assisted Suicide after being Taken to Switzerland'' The Times, 4 December 2004; M. Frith, ''Kennedy Quits Euthanasia Society in Row Over Swiss Suicide Clinic'' The Independent, 20 July 2004. As evidence of judicial reluctance to interfere, at least before the fact, see In re Z (Local Authority: Duty) [2005] 1 W.L.R. 959.
    • 21 J. Keown, ''Restoring Moral and Intellectual Shape to the Law after Bland'' (1997) 113 L.Q.R. 482; H. Biggs, ''A Pretty Fine Line: Life Death, Autonomy and Letting it B'' (2003) 11 Feminist Legal Studies 291.
    • 22 H. Biggs, ''The Assisted Dying for the Terminally Ill Bill 2004: Will English Law Soon Allow Patients the Choice to Die?'' (2005) 12 European Journal of Health Law 43, 51.
    • 23 J. Laurance and R. Verkaik, ''Police Question Euthanasia Widow Over Husband's Death'' The Independent, 22 January 2003; A. Norfolk, ''Wife on Trial for Letting Husband Commit Suicide'' The Times, 21 April 2005; D. Blamires, ''Judge Frees 'Caring' Daughter who Aided her Mother's Suicide'' The Independent, 30 June 1998; L. Peek, ''Mercy for Husband who Killed Wife in Pain'' The Times, 7 September 2002; J. Bale, ''Former PC who Killed Dying Wife Spared Jail'' The Times, 15 January 2005.
    • 24 J. Hardwig, ''Is there a Duty to Die?'' (1997) 27 Hastings Center Report 34.
    • 25 Suicide Act 1961, s. 1.
    • 26 Ibid., s. 2(1).
    • 27 A review of the case law suggests that the courts will not respect a child's suicidal refusal that is the result of metaphysical, superstitious, religious, or other abstract value-based reasoning: Re E [1993] 1 F.L.R. 386; Re S [1994] 2 F.L.R. 1065; Re L [1998] 2 F.L.R. 810; Re M [1999] 2 F.C.R. 577.
    • 28 In Re T (Adult: Refusal of Treatment) [1993] Fam. 95, ''An adult patient who . . . suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than another of the treatments being offered . . .. This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent . . .'' (per Lord Donaldson of Lymington M.R., at p. 102).
    • 29 Ms. B v. An NHS Hospital Trust [2002] 2 All E.R. 449.
    • 30 Pretty v. United Kingdom (2002) 35 E.H.R.R. 1.
    • 31 NHS Trust v. Bland [1993] A.C. 789; In re J. (A Minor) (Wardship: Medical Treatment) [1991] Fam. 33; In re B (A Minor) (Wardship: Medical Treatment) [1981] 1 W.L.R. 1421; In re C (A Minor) (Wardship: Medical Treatment) [1990] Fam. 26; Re R (Adult: Medical Treatment) [1996] 2 F.L.R. 99. See also In re Z (Local Authority: Duty) [2005] 1 W.L.R. 959.
    • 37 See A. Brock and C. Griffiths, ''Trends in Suicide by Method in England and Wales, 1979 to 2001'' (2003) 20 Health Statistics Quarterly 7.
    • 38 It is estimated that 50% of households have life insurance. See Office for National Statistics, UK 2005, (London 2004), at p. 466.
    • 39 See Hansard HL Deb. vol. 674 col. 19 (10 October 2005). Cp. the data for Orgeon's Death with Dignity Act with 171 reported cases in the first six years. See F. Pakes, ''Under Siege: The Global Fate of Euthanasia and Assisted-Suicide Legislation'' (2005) 13 European Journal of Crime, Criminal Law and Criminal Justice 119, 122. On the great potential for unreliability of extrapolated figures in this debate, see below Part III.
    • 40 Suicide Act 1961, s. 1.
    • 41 [1938] A.C. 586.
    • 42 ''Life Insurance and Suicide'' (1937) 1 M.L.R. 154, 154.
    • 55 FToorrtaancdonItnrsa.ryL.vJi.e7w7,7c,r7it9ic2i.sing the decline in the objective standard of fortuity, see S. Cozen and R. Bennett, ''Fortuity: The Unnamed Exclusion'' (1985) 20 Forum 222.
    • 60 Forfeiture Act 1982, s. 2.
    • 61 Forfeiture Act 1982, s. 5. See Davitt v. Titcumb [1990] ch. 110.
    • 62 Forfeiture Act 1982, s. 1(2).
    • 63 See R. v. Howe [1987] 1 A.C. 417, 433, per Lord Hailsham: ''Murder, as every practitioner of the law knows, though often described as [a crime] of the utmost heinousness, is not in fact necessarily so, but consists in a whole bundle of offences of vastly differing degrees of culpability, ranging from brutal, cynical and repeated offences like the so called Moors
    • 64 mDu.rdBelrasmtioretsh, e 'a'Jlmudogset venial, if objectively immoral, 'mercy killing' of a beloved partner''. Frees 'Caring' Daughter who Aided her Mother's Suicide'' The Independent, 30 June 1998.
    • 65 L. Peek, ''Mercy for Husband who Killed Wife in Pain'' The Times, 7 September 2002.
    • 66 See Gray v. Barr [1971] 2 Q.B. 554, 581 per Salmon L.J: ''Manslaughter is a crime which varies infinitely in its seriousness. It may come very near to murder or amount to little more than inadvertence, although in the latter class of case the jury only rarely convicts'' (emphasis added). See further the careful summing up of Ognall J. to the jury in the case of R. v. Cox (1992) 12 B.M.L.R. 38, although note that in this case the charge was one of attempted
    • 67 Am.urNdoerr.rie, ''After Woollin'' [1999] Criminal Law Review 532.
    • 68 Lord Hailsham in R. v. Howe [1987] 1 A.C. 417, at p. 433; Lord Simon in DPP for Northern Ireland v. Lynch [1975] A.C. 653, at p. 687; Y. Kamisar, ''Physician-Assisted Suicide: The Problems Presented by the Compelling, Heartwrenching Case'' (1998) 88 J. Crim. Law Criminol. 1121; B. Steinbock, ''The Case for Physician-Assisted Suicide: Not (Yet) Proven'' (2005) 31 Journal of Medical Ethics 235.
    • 69 [1971] 2 Q.B. 554.
    • 70 Gray v. Barr [1971] 2 Q.B. 554, 567-568 per Lord Denning M.R.
    • 71 [1998] ch. 412.
    • 72 Ibid., p. 419.
    • 73 This does not, of course, mean that the patient will wish to expose such family members to the risk of prosecution: see H. Smith and R. Smith, ''Doctors Cannot Simultaneously be Patient Centred and Reject Assisted Suicide (Letter)'' (2005) 331 B.M.J. 842-843, ''If I feel dementia approaching, I could of course kill myself. There's nothing illegal about that, but I would be reluctant to involve my family and friends-for fear that they might be implicated in doing something illegal''.
    • 93 See F. Parker, H. Rubin and W. Winslade, ''Life Insurance, Living Benefits and Physicianassisted Death'' (2004) 22 Behav. Sci. Law 615, 619.
    • 94 See discussion to note 39 above.
    • 95 The Disability Rights Commission noted in its evidence an example given by Baroness Finlay relating to a patient whose relatives had pressed for increased doses of diamorphine with the presumed motivation of ensuring an accelerated death so as to trigger a term policy before it expired. See Assisted Dying for the Terminally Ill Bill: Volume II Evidence (HL Paper 86-II, 2005), at p. 224.
    • 108 H. Biggs, ''The Assisted Dying for the Terminally Ill Bill 2004: Will English Law Soon Allow Patients the Choice to Die?'' (2005) 12 European Journal of Health Law 43, 51.
    • 109 I.G. Finlay, V.J. Wheatley and C. Izdebski, ''The House of Lords Select Committee on the Assisted Dying for the Terminally Ill Bill: Implications for Specialist Palliative Care'' (2005) 19 Palliative Medicine 444, 446.
    • 110 Consequentialism, put simply, is the doctrine that measures the moral quality of an action by its effects, rather than, for example, the mental state or beliefs or desires of the actor. For a useful collection of essays on consequentialism, see S. Darwall (ed.), Consequentialism
    • 111 (TOhxefodrodct2r0in0e3)o. f double effect allows a good means to be employed in pursuit of a good end, even if it will also result in a bad end, providing that the bad end is unintended, and that the overall harm is not disproportionate to the good end sought. Although some question the validity of the doctrine following the House of Lords decision in R. v. Woollin [1999] 1 A.C. 82, it is still treated as good law and forms a part of good medical practice. For analysis of the doctrine see D. Price, ''Euthanasia, Pain Relief and Double Effect'' (1997) 17 Legal Studies 323.
    • 112 I. G. Finlay et al., note 109 above, at p. 446.
    • 113 J. Keown, ''Restoring Moral and Intellectual Shape to the Law after Bland'' (1997) 113 L.Q.R. 482.
    • 114 J. Keown and L. Gormally, ''Human Dignity, Autonomy and Mentally Incapacitated Patients: A Critique of Who Decides?'' (1999), http://webjcli.ncl.ac.uk/1999/issue4/ keown4.html.
    • 115 Airedale NHS Trust v. Bland [1993] A.C. 789, 864 per Lord Goff; see also Ms. B v. an NHS
    • 116 RH.osJpeintaklinTsr,us''tW[2o0m0a2n]2'VAilnldEic.aRt.ed4'49fo.r Letting Husband Take his own Life'', The Times, 28 April 2005; I. Herbert, ''Wife Acquitted of Failing to Prevent Husband's Suicide'' The Independent, 28 April 2005.
    • 117 R. v. Cox [1993] 1 Med. L. Rev. 232.
    • 118 Pretty v. United Kingdom (2002) 35 E.H.R.R. 1.
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