Vous êtes sur la page 1sur 62

See

discussions, stats, and author profiles for this publication at: https://www.researchgate.net/publication/240889062

Dissertation - Euthanasia
Thesis May 2013

CITATIONS

READS

4,653

1 author:
Tom Honeyands
University of Exeter
1 PUBLICATION 0 CITATIONS
SEE PROFILE

All in-text references underlined in blue are linked to publications on ResearchGate,


letting you access and read them immediately.

Available from: Tom Honeyands


Retrieved on: 19 October 2016

Page |1

If physician-assisted suicide were legalised in England and Wales, can


adequate safeguards be developed to avoid the slippery slope that leads to
the practice of involuntary euthanasia?

590013315

Word Count: 11,998

I certify that all material in this dissertation which is not my own work has been
identified with appropriate acknowledgement and referencing and I also certify that
no material is included for which a degree has previously been conferred upon me.

May 2013

Page |2

1. Abstract

If physician-assisted suicide were legalised, the argument put forward by this


dissertation is that it will create a set of circumstances, in the absence of adequate
safeguards, which logically and naturally lead to the practice of involuntary
euthanasia. This investigation therefore seeks to determine whether we can balance
our fundamental freedoms including our right to life and personal autonomy against
the states obligation to preserve and protect life in order to develop sufficient
safeguards to ensure the most vulnerable members of our society are protected from
the practice of involuntary euthanasia.

This subject is of particular significance following the ethical dilemmas raised in


recent case law and the partial legalisation of the practice in a number of
neighbouring states. This demonstrates that the highly controversial issue of
euthanasia remains an unresolved and fiercely disputed grey area of law that
requires further study.

Page |3

Page of Contents

1. Abstract

Pg. 2

2. Introduction

Pg. 5

3. Chapter 1: Why Are We Afraid of Euthanasia?

Pg. 7

3.1 Introduction

Pg. 7

3.2 Law and Governance of Euthanasia in England & Wales

Pg. 7

3.3 Legal Uncertainty

Pg. 8

3.4 Can the Sanctity of Life Protect our Right to Life?

Pg. 13

3.5 Can Human Rights Legislation Prevent the Slippery Slope? Pg. 16
3.6 Can Personal Autonomy Prevent the Slippery Slope?

Pg. 19

3.7 Conclusion

Pg. 21

4. Chapter 2: Personal Autonomy versus State Protectionism

Pg. 22

4.1 Introduction

Pg. 22

4.2 The Problem with Autonomy

Pg. 23

4.3 Can Requiring Informed Consent Protect Autonomy?

Pg. 30

4.4 Can Doctors Balance Autonomy and State Protectionism? Pg. 35


4.5 Doctors and the Best Interests of Patients

Pg. 37

4.6 The Doctor-Patient Relationship

Pg. 41

4.7 Conclusion

Pg. 45

5. Chapter 3: Evaluating the Dutch Approach

Pg. 47

5.1 Introduction

Pg. 47

5.2 Good Governance; the Individual and the State

Pg. 47

5.3 Conclusion

Pg. 51

6. Conclusion

Pg. 52

Page |4

7. Bibliography

Pg. 57

7.1 Cases

Pg. 57

7.2 Statutes

Pg. 58

7.3 Law Reports

Pg. 58

7.4 Scholarly Articles

Pg. 59

Page |5

2. Introduction

The recent high court case of Nicklinson v Ministry of Justice1 has brought the
contentious issue of assisted suicide to the forefront of public debate. The prospect
of legalising euthanasia has fuelled some of the most profound and controversial
discussions into social2, medical3 and legal4 values in modern history, proving it to be
a deeply divisive issue.

This dissertation will explore a hypothetical scenario where euthanasia is legalised in


England and Wales, investigating how the most vulnerable members of our society
may be protected and our fundamental rights and freedoms preserved. Specifically,
this investigation will focus on whether the legalisation of physician-assisted suicide,
assisted suicide performed by a doctor or medical professional5, will lead to
conditions that lead to and facilitate the practice of involuntary euthanasia.

There are many proponents and opponents of the practice, however undeniably both
camps appreciate the fears associated with its legalisation; none more so than the
metaphor of the slippery slope. The slippery slope serves to amalgamate the fears
associated with the practice that current legislation and legal frameworks will be
unable to prevent the marginalisation of personal autonomy and compromise of our

1 Nicklinson v MoJ [2012] EWHC 304 (QB)


2 Smith S Evidence for the Practical Slippery Slope in the Debate on Physician-Assisted Suicide and Euthanasia Medical Law
Review 2004
3 P Bartlett The Consequences of Incapacity Blackstone Press Ltd 1997
4 Keown J Euthanasia, ethics, and public policy: an argument against legalisation 2002 pp 58-59
5 Veatch R The Basics of Bioethics Upper Saddle River NJ Prentice-Hall 2000

Page |6

right to life, leading to vulnerable groups of society being at greater risk of involuntary
euthanasia.

In addition, this dissertation will compare and contrast the Dutch example, in regard
to legalising euthanasia, with the current approach to the practice in England and
Wales. Chapter one will identify and investigate the fears associated with euthanasia
and lay out the current law in England and Wales. Chapter two will consider the
balance between personal autonomy and state protectionism as a possible
safeguard against the slippery slope. Finally, chapter three will evaluate the Dutch
example and conclude what lessons can be learned from their approach.

Ultimately, the fear of the slippery slope is a metaphor that suggests, following the
legalisation of physician-assisted suicide and without adequate safeguards in place,
the practice will lead to forms of involuntary euthanasia; assisting the suicide of
another without their permission6. By identifying the key fears associated with the
practice, investigating potential safeguards to it and comparing and contrasting the
example set by the Netherlands, this dissertation will cover all the bases relevant to
a study that seeks to investigate whether the legalisation of euthanasia will lead to
the practice of involuntary euthanasia and how to safeguard against it.

6 Smith S Evidence for the Practical Slippery Slope in the Debate on Physician-Assisted Suicide and Euthanasia Medical Law
Review 13 17-44 2004

Page |7

3. Chapter 1
Why are we afraid of euthanasia?

3.1 Introduction

By examining the current legal status of euthanasia in England and Wales, we can
determine whether the existing legal framework in place is capable of protecting our
right to life in a way that safeguards us against the fears associated with the
legalisation of euthanasia. Without a substantial legal foundation to rely on, there is a
danger that trying to control a legalised form of the practice will be impossible without
compromising our fundamental rights.

3.2 Law and Governance of Euthanasia in England and Wales

At present, all forms of euthanasia in England and Wales are illegal. Carrying a
maximum penalty of 14 years imprisonment, it is an offence under Section 2 of the
Suicide Act 19617 for an individual to carry out an act capable of encouraging or
assisting the suicide or attempted suicide of another. It is immediately clear that all
forms of euthanasia are illegal in England and Wales and this position is unlikely to
change in the immediate foreseeable future, considering current legislation and
common law precedents8. As such, this investigation into the potential
consequences of legalising physician-assisted suicide is hypothetical. However,
there are significant current legal, social and medical observations to be made in

7 As amended by s59 Coroners and Justice Act 2010


8 Nicklinson v MoJ [2012] EWHC 304 (QB)

Page |8

England and Wales and the Netherlands that provide evidence of what these
consequences might be and the potential effects of legalisation.

Beyond clarifying that the practice is considered a criminal act, the states duty,
under article 2 of the Human Rights Act (HRA) 1998 to preserve life, is in direct
conflict with the idea that under certain circumstances people can assist the suicide
of another. Other states have taken a different approach and in some, such as the
Netherlands, they have legalised physician-assisted suicide. Simply ignoring the
example set by other states, expecting the issue of legalisation of euthanasia to
never be considered in our own country is nave, as Saunders writes:

Once voluntary euthanasia is legalised in a single country or state,


people from neighbouring jurisdictions will take advantage of it9.

3.3 Legal Uncertainty

Although legislation has clarified the basic illegality of the practice, how the law has
been applied in practice highlights remarkable uncertainty. As a result of the 2001
Pretty10 and 2009 Purdy11 cases, the Director of Public Prosecutions (DPP) for
England and Wales felt obligated to clarify the factors that he regarded as relevant
for and against prosecution in cases of assisted suicide. These factors were

9 Saunders P Why Euthanasia should not be legalised Christian Medical Fellowship CMF.Org.UK 1995
10 Dianne Pretty v DPP [2001] UKHL 61
11 R (Purdy) v DPP [2010]

Page |9

formulated and published by the Crown Prosecution Service (CPS) in February


201012.

The policy submits that prosecution is less likely if the suspect was motivated by
compassion; the assistance was only minor; the suspect had tried to dissuade the
victim; the actions of the suspect were reluctant and the victims decision to undergo
euthanasia was clear and informed. Although the CPS does not state these cases as
precedent, the factors listed support the courts findings in R v Cox13 and R v
Adams14 regarding compassion and intent, indicating there is continuity and
consistency between common law precedent and current legal regulation.

Of note however, is the absence of factors relating to the victims condition, such as
their pain and suffering which may influence the ethical and moral considerations of
the doctor. Bear in mind though the factors in the CPSs publication are not
exhaustive and each case must be considered on its own facts and merits.15

Ultimately, the DPP insists nothing in this policy could be taken to amount to an
assurance that a person will not be prosecuted if they assist the suicide of another,
confirming the decision by the House of Lords in Pretty. The encouragement or
assistance of a patients suicide by a doctor is strictly prohibited and there can be no
guarantee of non-prosecution under any circumstances.

12 Policy for Prosecution in Respect of Cases of Encouraging or Assisting Suicide issued by the DPP 2010
13 R v Cox (1992) CCR
14 R v Adams [1957] CrimLRev 365
15 McCann A Free Movement of Euthanasia Services in Europe? A Law and Governance Perspective 2012

P a g e | 10

This is very interesting in terms of highlighting the current legal position in England
and Wales with regard to euthanasia. On the one hand the DPP insists no one can
avoid prosecution for performing euthanasia, whereas on the other, landmark cases
such as Re A16, where doctors actively ended the life of a new-born baby in order to
save the life of its conjoined twin, suggest otherwise. The Court of Appeal in this
case held it would be lawful for the operation to be performed, despite
acknowledging the potential charge would be murder. Ward LJ reasoned it was
lawful to kill one of the children, citing an analogy that suggested self-defence on
part of the child as the other was responsible for its impending death. Ward went on
to say the death as a result of the operation did not breach the principle of the
sanctity of life because of this quasi self-defence. Controversially, Brooke LJ rejected
this claim of self-defence but Ward went further to claim necessity was the reason
why the separation surgery went ahead, as it was in the childs best interest.

Firstly, this decision poses difficult questions as to who should take such decisions
on behalf of patients but more importantly at this stage of the dissertation, it clearly
demonstrates an inconsistency between the legislation and the judiciarys
interpretation and application of it in practice. Undoubtedly the facts of this case
create a very niche precedent but for the courts to put forward defences with such
wild abandon is in stark contrast to the supposedly clear-cut approach of the CPS in
its published policy report; is it necessity? Is it self-defence? Whats more, although
the court claims not to have breached the principle of the sanctity of life, it essentially
side-lined the principle so it would not have to. On paper, the principle may be

16 Re A children conjoined twins: surgical separation [2000] 4 ALL ER 961 per Ward LJ at 999J-1000A and 1000G-H

P a g e | 11

inviolable, but cases like this demonstrate in practice, it is far from absolute or clear
cut.

Despite the DPP offering clarification in the form of guidelines for prosecution, the
Commission on Assisted Dying chaired by Lord Falconer and published in 2011
concluded the current legal status of assisted suicide in England and Wales is
inadequate and incoherent;17 reinforcing the concerns raised following Re A. It
submits that since there have been no prosecutions for assisted suicide since 2010,
there is a public perception that assisted suicides which meet the criteria stipulated
by the DPPs policy will not lead to prosecution. Again, this supports the assumption
that under certain circumstances, such as in Re A, certain forms of assisted suicide
will not result in prosecution; contrary to the CPS guidelines. This inconsistent and
unclear approach to the regulation of euthanasia despite the current complete
illegality of the practice, suggests any form of legalisation will only result in more
ambiguity. As such, reliance on legislation and common law precedent to safeguard
against the slippery slope and protect those at greatest risk to the practice is
dangerous.

Furthermore, the DPP applies general guidelines on a case by case basis which
could mean the application of these guidelines could vary if the DPP changes,
leading to legal uncertainty. Upon legalisation of euthanasia, without the safeguard
of being able to rely on the DPPs guidelines to protect their rights and prevent
abuses of the practice, individuals and patients at greatest risk to euthanasia would
be even more vulnerable.

17 The Commission on Assisted Dying ISBN 978-1-906693-92-3 2012

P a g e | 12

Although the DPP guidelines do offer clarification of the legal position on euthanasia
in England and Wales, the Falconer report goes on to outline a legal framework,
through the principle of Legal Change, which would strictly define the circumstances
and eligibility criteria in which terminally ill people might be assisted to die. This
essentially submits the DPP guidelines need to be taken a step further beyond
simply stating the practice is illegal and prosecution cannot be avoided; but to also
consider and codify the rare circumstances that would permit assisted suicide, which
despite the illegality of the practice, can occur as Re A demonstrated.

The effect of setting out criteria where terminally ill people may be euthanised as the
report suggests raises a number of issues. On the one hand it can be seen as a
pragmatic approach to resolving and clarifying the ambiguity caused by Re A. On the
other, it could potentially open the flood-gates in regard to what criteria is required.
Significantly, it would to some extent be legalising the practice of euthanasia, even if
it is within certain circumstances.

The falconer report addresses many issues and outlines a practical route for
developing an effective and consistent legal framework for legalising euthanasia.
However, some commentators18 do not believe it would be as easy and clear cut as
the report suggests. With particular reference to the principle of the sanctity of life, a
supposedly inviolable principle that can be relied upon to protect everyones right to
life. In the absence of explicit and unambiguous legal guidelines or regulation, the

18 Chambaere K Centeno C Palliative Care Development in Countries with a Euthanasia Law Report for the Commission on
Assisted Dying 2011

P a g e | 13

sanctity of life principle is, prima facie, a significant potential safeguard against the
slippery slope; but how rigidly is this theoretical principle applied in practice?

3.4 Can the Sanctity of Life Protect our Right to Life?

One of the main arguments put forward by those who oppose the legalisation of
euthanasia is that the core principle of sanctity of life will be violated.19 The principle
serves to protect everyones right to life, including the most vulnerable members of
our society, stating that life is precious and must not be destroyed or limited under
any circumstances.20 If euthanasia were to be legalised, the question of whether this
inviolable principle can be upheld to provide a safeguard for the vulnerable against
involuntary euthanasia, needs to be answered.

Lord Justice Ward put forward an insightful definition of the sanctity of life in the Re
A, the conjoined twins case:

The sanctity of life doctrine holds that human life is created in the image
of God and is therefore possessed of an intrinsic dignity which entitles it to
protection from unjust attack. The right to life is essentially a right not to
be intentionally killed.21

This principle compelled Ward to accept that each life has a universal inherent value
and that the principle of protecting human life is deeply seated and given high regard

19 Donchin A Autonomy interdependence and assisted suicide: respecting boundaries/crossing lines Bioethics 2000
20 Suber P Against the Sanctity of Life Earlham College 1996
21 Re A children conjoined twins: surgical separation [2000] 4 ALL ER 961 per Ward LJ at 999J-1000A and 1000G-H

P a g e | 14

within English law. Keown22, a prominent proponent of the principle agrees that it has
a strong foundation within the law. However, it could be suggested the debate
concerning the application of the principle is purely academic as one Law Lord has
suggested that:

Arguments in support [of euthanasia] are transcendent. Believer or


atheist, the observer grants to the maintenance of human life an
overriding imperative, as strong as to outweigh any consent to its
termination.23

This states that regardless of religious belief, the sanctity of life principle applies
universally. If true and every citizen in England and Wales is protected by it, there
would be little scope for euthanasia to operate and in a scenario where euthanasia
were legalised, the right to life of individuals would be well protected and the slippery
slope avoided.

Unfortunately in practice, the principle of the sanctity of life is not as absolute or


inviolable the law lords may have suggested. Notwithstanding obiter rhetoric to the
contrary by Ward LJ, the ruling in Re A24 held that a patients quality of life and best
interests can overrule their sanctity of life, which in this case resulted in one of the
twins being euthanised by doctors in order to allow the other to live. This is a
disturbing and landmark example of the sanctity of life principle being superseded,
demonstrating the weakness of the principle in protecting the life of a vulnerable

22 Keown J Euthanasia, ethics, and public policy: an argument against legalisation 2002 pp 58-59
23 Brown et al [1993] 2 WLR 556 at 588G
24 Re A children conjoined twins: surgical separation [2000] 4 ALL ER 961

P a g e | 15

child. Evidently, the principle of the sanctity of life is not inviolable and suggests the
courts are potentially leaning in the direction of permitting some forms of voluntary
euthanasia.

In contrast, the case of Diane Pretty v DPP25 demonstrated a resistance under


English and Welsh law to allow voluntary euthanasia by ruling against assisted
suicide despite Dianes claim that the right to life, as codified in the HRA 1998, also
included the right to control the manner of ones death, however it was held this
would stretch the natural meaning of the act too far.26 This demonstrates an
unpredictability in moral standards by the courts.

Even if the cases are to be taken on individual merit and fact, if quality of life can
overrule the sanctity of life in Re A but not in Pretty v DPP, clearly there is an issue
of consistency and predictability regarding the moral and ethical standards of the
application of the sanctity of life principle within the English judicial system. More
importantly though, Re A demonstrated the principle of the sanctity of life is not
absolute or rigid, with a degree of flexibility existing in certain circumstances thereby
limiting the protection it might offer to vulnerable groups of society, if euthanasia
were to be legalised.

More recent case law supports this legal position as Lord Donaldson stated in Re J27
that in exceptional circumstances28 the strong presumption in favour of life could be

25 Dianne Pretty v DPP [2001] UKHL 61


26 Lewis P Assisted Dying and Legal Change Oxford University Press 2007
27 Re J a minor wardship: medical treatment [1991] 1 FLR 366
28 Per Lord Donaldson MR pp 938E-F per Taylor LJ at p 943C

P a g e | 16

rebutted; affirming a patient could be allowed to die on the basis of their best
interests. This is confirmed by the ratio in Bland29, with a majority ruling, which held a
doctors duty is primarily to act in the best interests of the patient. As physicianassisted suicide is the most prevalent form of euthanasia in other jurisdictions,30 the
impact of a best interest principle superseding the sanctity of life, as demonstrated
by the above case law, clearly violates the inviolability of the sanctity of life, giving
credence to the slippery slope fears associated with legalising euthanasia put
forward by Donchin.31

The result of the supposedly inviolable sanctity of life not being able to provide
absolute protection to an individuals right to life will exacerbate the pressures
suffered by those who are vulnerable and at greatest risk of being euthanised as
they would no longer be able to rely on their inherent and absolute right to life. With
that in mind, we must consider what other ways the right to live can be protected in
order to avoid this slippery slope?

3.5 Can Human Rights Legislation Prevent the Slippery Slope?

It could be argued the HRA 1998, which incorporated the European Convention on
Human Rights (ECHR) into English and Welsh law, may serve to discredit the rulings
of landmark English case law which have demonstrated a flexibility in the application
of the sanctity of life principle. Article 2 imposes a right to life as both a positive and a

29 Airedale NHS Trust v Bland [1993] 2 WLR 316


30 Smith S Evidence for the Practical Slippery Slope in the Debate on Physician-Assisted Suicide and Euthanasia Medical
Law Review 13 17-44 2005
31 Donchin A Autonomy interdependence and assisted suicide: respecting boundaries/crossing lines Bioethics 2000

P a g e | 17

negative obligation on states which prohibits the intentional taking of life but also
imposes a duty to take adequate and appropriate steps to protect individuals in its
care.32

In practice, physician-assisted suicides through medical omissions, as in the case of


Bland,33 would violate this human rights law, thereby reinforcing this binding
international legal authority of the right of life; although the scope of this is limited to
what is reasonable.34 In the absence of a rigidly applied sanctity of life principle, if
our right to life can be legally enforced through human rights legislation, the fear of
the slippery slope leading to involuntary euthanasia for vulnerable members of
society is alleviated.

Furthermore, the ECHR which is binding on signee member states, can also provide
the necessary enforcement through the European Court of Human Rights (ECtHR)
of our right to life. This could render the issue of the flexible approach to the principle
within English domestic law moot; serving to protect the right to life for all.

In the case of Diane Pretty,35 article 2, 3 and 8 were submitted as possible defences
to a murder charge as a result of performing voluntary euthanasia. However, the
court dismissed the claim that article 2 should be interpreted as granting individuals
a right to commit suicide. The court held: The consistent emphasis in all the cases

32 X v UK (1978) 14 DR 31
33 Airedale NHS Trust v Bland [1993] 2 WLR 316
34 Osman v UK (1998) 29 EHRR 245
35 Pretty v United Kingdom (2002)

P a g e | 18

before the Court has been the obligation of the State to protect life. This reinforces
both the international and domestic stance on protecting the right to life.

European human rights legislation provides binding authority on the right to life, but
its application in English case law is unclear. The Archbold review36 is a legal
commentary on the decision in the recent landmark case of Nicklinson v MoJ 37
regarding assisted suicide. The review undermines the legal authority of Re A,
arguing that it does not provide a strong enough precedent against the applicants'
arguments as the facts were highly unusual, unlike those of Mr Nicklinson in this
case.

The review claims that using article 2 of the ECHR, the right to life, as put forward in
the Pretty case as a possible defence to murder for an act of voluntary euthanasia
would go far beyond the authority set out by the ECtHR and would be inconsistent
with other landmark English case law, including Purdy38 Bland39 and Nicklinson40.
Accordingly, it would be constitutionally inappropriate, impractical and go beyond the
jurisprudence of the ECHR to require the DPP to provide further clarification for
individuals to assess the probability of their actions in regard to prosecution for
euthanasia; directly contradicting what the Falconer report has suggested the DPP
do in its review of assisted suicide in England and Wales. Unfortunately, the unique
facts of Re A case prevented it from achieving any significant legislative or common

36 Archbold Review Case Comment, Assisting suicide: whether defence of necessity available 2012
37 Nicklinson v MoJ [2012] EWHC 304 (QB)
38 R. Purdy v DPP [2010]
39 Airedale NHS Trust v Bland [1993] 2 WLR 316
40 Nicklinson v MoJ [2012] EWHC 304 (QB)

P a g e | 19

law reform that could help Nicklinson, although it does serve to raise the issue
finding an equitable balance between state protectionism and personal autonomy.

3.6 Can Personal Autonomy Prevent the Slippery Slope?

Although it can be seen from case law that factors such as quality of life and best
interest can supersede sanctity of life, what is consistent and has been present in all
cases is the growing concern that state protectionism is overruling personal
autonomy. This will be discussed at greater length in chapter two, however it is
crucial to appreciate that if the sanctity of life cannot be relied upon to provide a right
to life in England and Wales, the next potential safeguard protecting those who are
most vulnerable to legalised euthanasia is our individual freedom of choice; personal
autonomy.

While recognising the importance of personal autonomy, many academics argue that
once euthanasia in any form is legalised, Patients will be coerced and exploited, the
search for better or alternate therapies compromised and involuntary euthanasia will
inevitably follow41 as demonstrated by the unreported 2011 Dutch euthanasia case
of a 64-year old woman, suffering senile dementia, who was euthanised even though
she unable to express a desire to die42. As such, it is vital to consider the potential
effectiveness of the safeguard of personal autonomy following any legalisation of
euthanasia.

41 Saunders P Why Euthanasia should not be legalised Christian Medical Fellowship CMF.Org.UK 1995
42 Smith W Whats Choice Got to Do with Dutch Euthanasia National Right to Life News 2011

P a g e | 20

The fundamental issue is one of balance; the criminal offence of assisting in


anothers death can be applied with flexibility or rigidity, or not applied at all in some
cases.43 The fear of losing personal autonomy is the theoretical and practical
extension of the violability of the sanctity of life principle. Mr Nicklinson44 sought to
change the law to provide a legitimate, court sanctioned, route to end his life. He
believed only legislation, as a result of democratic will, should change the law
regarding euthanasia in England and Wales but of paramount importance was for
the individuals right to choose be preserved. Without such a right he argued, it
would be impossible to avoid the slippery slope to involuntary euthanasia.

In relation to the preservation of personal autonomy, Justice Charles accepted the


case of Re A as a platform for Nicklinsons argument, giving weight to the
importance of the right to personal autonomy. However, as previously discussed, the
niche facts of the case could not provide a binding precedent capable of giving legal
duty to preserve autonomy.

What is clear therefore is that further clarification is needed in the form of legal
precedent or legislation with regard to balancing the states responsibility to protect
the lives of its citizens and an individuals personal autonomy.45 Without a clear
understanding of the protection that personal autonomy can afford individuals, whom
as we have seen cannot categorically rely on the sanctity of life being applied, the
strength and effectiveness of the safeguard of having a right to choose against
legalised euthanasia is questionable.

43 McCann A Free Movement of Euthanasia Services in Europe? A Law and Governance Perspective 2012
44 Nicklinson v MoJ [2012] EWHC 304 (QB)
45 Huxtable R D(en)ying Life: The Sanctity of Life Doctrine in English Law 2002

P a g e | 21

3.7 Conclusion

Lord Falconers statement that the current legal status of euthanasia in England and
Wales is inadequate and incoherent in addition to the case law demonstrating the
fundamental principle of the sanctity is life, although still overwhelmingly adhered to,
can no longer unquestionably be relied upon to preserve our right to life and
safeguard us from the slippery slope. Without adequate safeguards to protect our
right to live, the legalisation of any form of euthanasia such as voluntary physician
assisted suicide, may subsequently lead to forms of involuntary euthanasia.

Without an unqualified sanctity of life principle to fall back on, we must consider
further possible safeguards that may be able to prevent the slippery slope and
protect those at greatest risk of the legalisation of euthanasia. If an individuals right
to life can no longer be guaranteed by the state, can their basic right to choose their
own fate be preserved? It is essential to find the right balance between personal
autonomy and state protectionism that protects our right to choose whilst observing
the states obligation to preserve life. Although individually these concepts could
potentially safeguard against the slippery slope, finding a realistic and practical
balance between them is more difficult and controversial than it may first appear.

P a g e | 22

4. Chapter 2
Personal Autonomy versus State Protectionism

4.1 Introduction

Although our right to life still largely adhered to and codified in domestic and
international legislation, the absence of an unqualified right to life highlighted in
chapter one would suggest following any legalisation of euthanasia, we would all be
at significant risk to involuntary euthanasia. Therefore, finding a way to balance
personal autonomy against the states duty to preserve life may be the next best
safeguard against the slippery slope, protecting everyones right to make their own
decisions without subjecting them to the problems associated with absolute
autonomy.

This chapter will seek to determine whether, upon legalisation, a non-discriminatory


and balanced relationship between the states interest in the preservation of life and
the individuals personal autonomy can be found. If a balance can be found, it can
potentially serve to protect the vulnerable and, in place of an absolute right to life, act
as an effective safeguard against the practice of involuntary euthanasia resulting
from the slippery slope. If a balance cannot be found, this chapter will investigate
whether the practice of medical professionals, as an independent third party, may be
able to act as a bridge between the individual and the state in a way that embraces
the best of both worlds.

P a g e | 23

4.2 The Problem with Autonomy

Personal autonomy is a rational individuals capacity to make an informed, uncoerced decision according to Coggon.46 He contends that although it may seem that
a patient is exercising his or her autonomy, perhaps in giving their consent to a
particular medical procedure or treatment. In fact, their ability to make these
decisions or provide this consent may be being significantly influenced by a number
of external factors; including social, political, medical, economic and moral issues.

The underlining fear of the slippery slope is upon legalisation of euthanasia, owing to
these numerous pressures, patients may be inclined to opt for euthanasia were it
available whilst under a certain level of duress and without exercising their full
personal autonomy. Without such autonomy or self-government, the individuals
welfare is at the mercy of others, including the courts and government of the state47.
This is exemplified in English and Welsh case law where claimants have failed to
secure a legal way to undergo euthanasia; Nicklinson48 for example.

Ensuring everyone is able to make their own decisions is, on the face of it, a clear
solution to the fear of euthanasia being imposed on those who do not want it.
However, Taylor49 believes that many commentators in this debate exclusively argue
the importance of autonomy, but fail to recognise and consider other important
factors such as requiring informed consent and what is in the best interest of the

46 Coggon J Ignoring the moral & intellectual shape of the law after Bland: the unintended side-effect of a sorry compromise
Legal Studies 2007 110-125
47 Lewis P Assisted Dying and Legal Change Oxford University Press 2007
48 Nicklinson v MoJ [2012] EWHC 304 QB
49 Taylor E G Practical Autonomy and Bioethics Routledge 2009

P a g e | 24

patients. Having regard to these issues that can influence personal autonomy is
crucial. For example if a patient is paralysed, in a coma or suffering from a mental
disorder, how can they be judged to have made an informed decision, provided
consent or assured that doctors are acting in their best interest? Taylor simply
concludes that a person who values autonomy should generally favour a scenario
where people have more choice rather than less but fails to address the logistical
and ethical issues of preserving autonomy for everyone, especially the vulnerable
who are at greatest risk to it.

If personal autonomy is such a basic fundamental right that allows individuals to


make their own choices, how can the states responsibility to preserve and protect
life be balanced against it in a way that protects the vulnerable and prevents the
slippery slope?

State protectionism is analogous to paternalism50 and the antithesis of personal


autonomy, deemed unacceptable by many who believe it goes as far as dictating
how people should live their lives. On the one hand people believe they should be
able to choose the manner and time of their death, whereas on the other, proponents
of euthanasia highlight this why it should only be legalised to a certain extent, limited
to those with full mental capacity51 as some people may, medically speaking, be
lacking in capacity to make their own decisions.

50 Stewart C Peisah C Draper B A test for mental capacity to request assisted suicide Journal of Medical Ethics vol 37 2011
51 Herring J Protecting Vulnerable Adults Oxford Legal Studies Research Paper No 10 2010

P a g e | 25

Although the issue appears abstract, without personal autonomy, who determines
what is in the best interest of the individual or patient with regard to whether they
choose to undergo euthanasia or not? Without personal autonomy, the states
political and economic influences will be forced upon everyone, in particular the
vulnerable, who may as an extreme example decide that certain types of people
such as the sick or elderly should be euthanised for economic reasons.

That is the fear, however Dworkin52 argues that autonomy is a basic right that the
state cannot limit without compelling reason. His main point is that governments
understanding of the importance of life, which is inherently objective and holistic, will
not justify limits on individual actions.53 Reinforcing Dworkin, safeguarding personal
autonomy to protect the vulnerable is key as ONeil observes that recently there has
been an increase in both the public enthusiasm for safeguarding individual autonomy
and a corresponding increase in the public mistrust of the state.54

On the other hand, Keown believes there are serious limitations in using personal
autonomy as a safeguard against the slippery slope. He opines that simply because
a decision is made autonomously, it does not mean it is deserving of respect;
illustrating the point that unregulated autonomy can lead to disastrous
consequences.55 For example, if a patient is drunk or depressed but autonomously
asks a doctor to perform a physician-assisted suicide, should the doctor carry out the
act regardless of the patients mental capacity? Would this not be in breach of the

52 Dworkin R Life's Dominion An Argument about Abortion Euthanasia and Individual Freedom New York Knopf 1993
53 Herring J Medical law and ethics 4th edition 2012 OUP pp 149-221 472-563
54 ONeill O Autonomy and Trust in Bioethics Cambridge University Press 2002
55 Keown at 53 2002

P a g e | 26

doctors medical ethics and values? Further, what if a patient is unable to


communicate their decision due being in a coma or paralysed? It raises numerous
medical and ethical questions that must be addressed however it does suggest that
balancing the individual and the state in a way that affords much greater, if not
absolute, personal autonomy can be very dangerous.

If absolute personal autonomy is dangerous, perhaps greater weight and priority


should be afforded to the state with its obligation to preserve life, thereby protecting
those lacking mental capacity or under pressure. While it has to be acknowledged
that in any civilised country the government will have an interest in preserving the
lives of its citizens, it is not an absolute interest. Cohen-Almagor56 appreciates that
people do not live in isolation and although they may be free and autonomous, their
decisions and actions can impact upon others.

In contrast, John Stuart Mill57 opposes state protectionism on the grounds that
individuals know themselves better. As a result, protectionism can disrupt the
development of independent character and that peoples respect for the liberty of
others is within everyones own moral equity, an abstract quality of personal
autonomy that could conceivably be a regulatory mechanism to safeguard the
vulnerable, which is absent from state governments.

Clearly there is a high degree of divergence within the academic community


regarding the application of personal autonomy and its relationship with state

56 Cohen-Almagor R Shmueli M The Quality of Life Argument in Medical Ethics A Critical View Vol. 21 Issue Number 2 p117137 2000
57 Mill J S On Liberty Oxford University Press p14 1991

P a g e | 27

protectionism, but the fact remains without a successful balance between the two,
the vulnerable are not protected from the slippery slope.

American pathologist and euthanasia activist, Dr. Jack Kevorkian, commonly known
as Dr. Death argued, What counts is what the patient wants Thats primary.58
According to Conley,59 autonomy and self-determination are the core principles of
many libertarian proponents of euthanasia. Their main concerns with regard to
legalising euthanasia is social class, economic status or medical circumstance being
the basis for a selective endorsement of personal autonomy which may influence
whether they are actually acting and making decisions autonomously. As Conley
highlights, if the eligibility criteria for euthanasia lowers from terminally ill patients to
those who are merely an intolerable burden, there will be a growing trend toward
conferring the right to die on particular, vulnerable groups of society. This libertarian
perspective raises the question of exactly how personal autonomy could protect the
vulnerable from these socio-economic and medical pressures.

Opponents and proponents of euthanasia alike recognise the importance of


individual autonomy, but Saunders60 firmly believes no form of euthanasia should be
legalised as it sidesteps true compassionate care. He goes on to suggest history,
and the examples set by other jurisdictions have demonstrated that legalised
euthanasia poses serious risks to society as a whole. For example, patients can be
coerced or exploited, the development of alternative treatments such as palliative

58 Chua-Eoan H The life and Deaths of jack Kevorkian 1928-2011 Time Magazine 2011
59 Conley J Libertarian Euthanasia 1994
60 Saunders P Why Euthanasia should not be legalised Christian Medical Fellowship 1995 <CMF.Org.UK> Accessed 12 Jan
2013

P a g e | 28

care are compromised and invariably, involuntary euthanasia follows. What is


evident is the numerous issues associated with giving greater weight to either the
individual or the state. Without a theoretical solution in sight to create an effective
safeguard, analysing the approach taken by another state may provide some help in
finding the right balance.

In 2001, the Dutch Parliament debated whether a written request of euthanasia


before the onset of dementia could still be used as grounds for termination later in
the patients life.61 They posed two requirements for a request of euthanasia. One, to
establish hopeless and unbearable suffering and two, ensure the patients consent
is given freely and expressly. This suggests in the Netherlands it is not possible to
request euthanasia in advance.62 Similarly, the Diane Pretty63 case confirmed the
same legal position under English and Welsh law.

Although this may appear to disregard personal autonomy to some extent, it does
offer an element of protection for vulnerable patients. If certain standards and
requirements could be set and enforced by regulators, such as the state or medical
bodies, this could serve to preserve autonomy but without the ensuing slippery slope
risk to the vulnerable. There are signs that regulation and precedent are being
developed to offer this protection, although to what extent is questionable. For
example, the Mental Capacity Act64 (MCA) of 2005 in England and Wales only
protects those who lack mental capacity. It is therefore inadequate as an absolute

61 Herring J Protecting Vulnerable Adults Oxford Legal Studies Research Paper No 10 2010
62 Korff D The Right to Life A guide to the implementation of Article 2 of the ECHR Human Rights No 8 2006
63 R. Pretty v DPP [2002]
64 Mental Capacity Act 2005 c9 London HMSO

P a g e | 29

safeguard by itself as it does not protect everyone. However, Herring65 believes that
recently courts have developed a jurisdiction to fill the gaps left by the MCA, dealing
with adults who officially have capacity but are thought to need protection. Munby J
defined this jurisdiction in 2005 in the case of Re SA:

The inherent jurisdiction can be exercised in relation to vulnerable adults


who, even if not mentally incapacitated, is reasonably believed to be
either under constraint, subject to coercion or undue influence or be
deprived of the capacity to make the decision, or disabled from making a
free choice.66

The significance of under constraint, subject to coercion, undue influence and


deprived of the capacity cannot be overstated. It effectively alleviates a core fear
held by many euthanasia opponents regarding how a vulnerable adults personal
autonomy can be safeguarded. The relatively recent nature of this case means it is
difficult to assess how influential it has been as a precedent, however it is reassuring
that the courts have recently taken it upon themselves to protect the vulnerable to
this extent.

However, without comprehensive legislation that protects individuals with and


without capacity, relying on courts to fill the gaps is far from an adequate safeguard
to prevent the slippery slope. Although common law precedent and regulation in
England and Wales in the form of legislation is unable to protect everyone, the

65 Herring J Protecting Vulnerable Adults Oxford Legal Studies Research Paper No 10 2010
66 Re SA Vulnerable Adult with Capacity: Marriage [2005] EWHC 2942 Fam para 77

P a g e | 30

second requirement put forward by the Dutch Parliament for patient consent to be
given freely and expressly may be able to. The dangers associated with giving
greater weight to autonomy have already been established, but what if there is a way
of preserving autonomy while subjecting it to a requirement of informed consent;
effectively regulating autonomy in such a way that protects the vulnerable but without
the state marginalising it.

4.3 Can Requiring Informed Consent Protect Autonomy?

Although there is no universally accepted definition of informed consent,67 Justice


Kirby defined it as:

Consent is obtained after the patient has been adequately instructed


about the ratio of risk and benefit involved in the procedure as compared
to alternative procedures or not at all.68

Requiring an individual as a patient, to be adequately informed of the procedure and


the risks associated with it has the potential to allow personal autonomy to be
preserved to a significant extent, but under the reasonable conditions of a
requirement of consent that can protect the vulnerable or weak. ONeill69 suggests
the best reason for requiring informed consent is that it provides patients with
protection against being deceived or coerced.

67 Keown J Euthanasia, ethics, and public policy: an argument against legalisation 2002
68 Kirby M D Informed Consent: What does it mean? J Med Ethics 92 69-75 1983
69 ONeil O Autonomy and Trust in Bioethics Cambridge University Press 2002

P a g e | 31

In reality, Wolpe70 argues despite grand visions of autonomy, consent is little more
than a formality. Once a doctor diagnoses a patient and recommends a course of
treatment, very rarely will a patient disagree with them and so will provide consent
anyway as they may feel they have no choice. Wolpe believes in many cases the
patients autonomy is being used against them, equating to a modern clinical ritual
of trust. This means the patient is given minimal information about a procedure
which they consent to, despite having little understanding of what it entails or even
an appreciation that they have a choice in the matter.

Assessing the importance of consent as no more significant than a mere formality is


discouraging to the idea that requiring informed consent may alleviate one of the
issues associated with giving greater weight to personal autonomy, in the balance
against state protectionism.

This unfavourable view of the practical importance of informed consent is shared by


Epstein71 who believes it is a legal fiction but considers autonomy as essential for
providing consent. Similarly, Keown72 submits the Dutch approach is a clear critique
of the belief that any form of euthanasia could be limited to justifiable cases involving
competent consenting persons and he is certain it will inevitably lead to involuntary
euthanasia on the grounds of quality of life.

70 Wolpe P Ethics and complementary modalities Encyclopaedia of Complementary Health Practices Springer Publishing Co
New York 1998
71 M Epstein Why effective consent presupposes autonomous authorisation: a counter orthodox argument Journal of Medical
Ethics 32 342-345 2006
72 Keown J Euthanasia ethics and public policy: an argument against legalisation 2002

P a g e | 32

With that said, requiring consent is evidently a less than effective solution for
balancing personal autonomy and state protectionism. The unfortunate paradox is
that as greater weight is afforded to autonomy, the requirements for consent will
become stricter. The corollary affect is that fewer people will be covered under these
stricter requirements and therefore more people will be regarded as incompetent or
lacking in capacity to consent and consequently treated on a paternalistic basis;
further marginalising the autonomy the restrictions intended to preserve.73

Notwithstanding the ineffectiveness of requiring consent in practice, a further issue to


consider is patients who are in a minimally conscious or unconscious state. They
would be unable to provide their informed consent as a result of any number of
physical or mental conditions and any protection that the preservation of personal
autonomy and the requirement of informed consent may have provide, would be
negated.

In 2011, the judges in W v M74 ruled that all patients in a minimally conscious state
must be referred to the Court of Protection if life prolonging treatment is to be
withheld or withdrawn. The Court of Protection follows a comprehensive practice
direction document regarding all serious medical treatment.75 They include several
examples of what serious medical treatment may include, such as cases involving an
ethical dilemma in an untested area; akin to euthanasia. Although, this list is non-

73 Herring J The Caesarean Section Cases and the Supremacy of Autonomy in Freeman and Lewis eds Law and Medicine
OUP 2000
74 W v M and Others [2011] EWHC 2443
75 Direction 9E of the rules of the Court of Protection 2007

P a g e | 33

exhaustive and whether or not a procedure is regarded as a serious medical


treatment is dependent on the circumstances and the consequences for the patient.

These directions state it is lawful for a treatment or procedure to be carried out by


the medical professional if a declaration can be made in the best interests of the
patient who may lack the capacity to make a decision or provide informed consent.
These guidelines of practice demonstrate a disregard for personal autonomy.

Evidently, state protectionism is not the only opponent to personal autonomy as


these practical medical guidelines also clearly marginalise it in favour of the concept
of best interest. Moreover, Baker J in W v M stated that it would be wrong to attach
significant weight76 to a patients previously expressed values, wishes and views
unless they had been made expressly in a legally valid advance decision. In
contrast, he affords greater, although not absolute, weight to the states duty to
protect life through the sanctity of life principle and less significance to personal
autonomy:

The importance of the sanctity of life, the fatal consequences of


withdrawing treatment, and the absence of an advance decision that
complied with the requirements previously specified by the common law
and now under statute, it would in my judgment be wrong to attach
significant weight to those statements made prior to her collapse.77

76 W v M and Others [2011] EWHC 2443


77 W v M and Others [2011] EWHC 2443 Para 230

P a g e | 34

According one medical expert78 who writes for the British Medical Journal, this
judgment is profoundly disturbing. Not affording significant weight to a patients
previously expressed values in addition to the judgments logical implication that all
decisions regarding the initiation or termination of life prolonging treatment for all
incapacitated patients should be brought to the Court of Protection, even though the
judgment refers only to patients in a minimally conscious state, is troubling.

In contrast, the MCA explicitly requires that the incapacitated patients previously
expressed values, wishes and views must be followed where possible.79 Although
the influence of doctors as a third party may serve to further marginalise patient
autonomy rather than successfully balance it against preservation of life, there is an
argument to suggest good medical practice will bypass issues of balancing
autonomy and serve to protect the vulnerable and avoid the slippery slope through
greater medical regulation and oversight.80

It has been established that individuals or patients cannot absolutely rely on the
supposedly inviolable core principle of the sanctity of life, nor can affording too
much weight to individual autonomy or the state provide a suitable balance
between them. However, the requirement of consent that the Dutch Parliament
put forward to protect the vulnerable and prevent forms of involuntary
euthanasia has inadvertently highlighted a potential solution to the issue of
balancing personal autonomy and state protectionism.

78 G Raanan Sanctity of Life law has gone too far BMJ July 2012
79 Mental Capacity Act 2005 Section 4(6)
80 Herring J Medical law and ethics 4th edition 2012 OUP pp 149-221 472-563

P a g e | 35

Informed consent as a prerequisite requirement for someone to opt to undergo


euthanasia has, in reality, significant limitations and flaws preventing it from
being an adequate safeguard. However, its weakness in regard to patients who
are unable to provide their consent has demonstrated the concept of best
interest may be able to act as a bridge between the state and the individual,
regulated by medical professionals. Doctors, as a third party, independent of
the state and the individual, may be able to act as the necessary link that can
protect the values and interests of the patient while accommodating the states
preservation of life duty where possible, thereby ensuring the best interests of
the vulnerable are given priority.

4.4 Can Doctors Balance Personal Autonomy and State Protectionism?

The Dutch Termination of Life on Request and Assisted Suicide Act of 200281
(henceforth known as the 2002 act) stipulates the patients request for euthanasia
must be: voluntary and considered, the patient must be suffering unbearably with no
prospect for improvement and been informed of their situation by their doctor, who
must have also convinced them there is no reasonable alternative. In addition, it
requires at least one independent doctor to have given a written opinion confirming
the previous criteria has been met and finally, the doctor must terminate the patients
life with due medical care and attention. Crucially, in terms of medical ethics, no
doctor is ever obliged to grant a request for physician-assisted euthanasia nor even
refer a patient to a colleague if they do not wish to.

81 The Dutch Termination of Life on Request and Assisted Suicide Act of 2002

P a g e | 36

Furthermore, empirical data collected and published in the annual reports of the
Dutch Regional Review Committee in 201082 reveal 2.3% of all deaths ended
through a form of voluntary assisted euthanasia, compared with 0.21% in England
and Wales83. Although it could be argued these figures are conservative as the
Remmelink report84 in 1990 stated only 19% of cases were being reported.
Interestingly, this has increased to 80% in 2005 almost certainly as a result of the
2002 act. Acknowledging possible inaccuracies in the survey given the legal, ethical
and logistical difficulties in attaining the information, this survey highlights many
crucial issues. It suggests, legalised or not, euthanasia will still occur, but only the
reporting of its incidence changes significantly with legalisation as doctors no longer
fear self-incrimination.

One could argue that a parallel with the legalisation of abortion in England and
Wales could be made. Once reporting becomes standardised and consistent,
regulations and oversight will become more effective, mitigating the likelihood of a
descent down the slippery slope. Moreover, the study has shown no increase in the
frequency of any form of euthanasia without explicit patient consent. Nor an increase
in the elderly, uneducated, poor, physically or mentally ill or those from ethnic or
racial minorities, since legalisation in 2002.

The Dutch statistics support the idea that medical professionals can act as a further
safeguard in strengthening the protection on offer to the vulnerable. Following the

82 Van der Maas et al 1991 Van der Wal & Van der Maas 1996 Van der Wal et al 2003 Onwuteaka-Philipsen et al 2007
83 Seale C Written evidence to the Commission on Assisted Dying Hastening death in end-of-life care: A survey of doctors
2012
84 Wachter M Active Euthanasia in the Netherlands Jama 262 1989 3316-19 at 3316-17

P a g e | 37

legalisation of physician-assisted suicide in the Netherlands, the reports reveal the


reporting of the practice increases significantly, meaning greater restrictions,
regulations and oversight can be put in place to ensure the practice is conducted
properly and safely. Potentially then, there is merit in the idea that the practice of
medical professionals can play a role in balancing autonomy and state protectionism.
According to one academic, the debate has:

Moved from an ethical and ideological argument toward development of practical


requirements of prudent practice and of guidelines for good medical practice at the
end of a patients life.85

If the doctor can play a role of an independent, expert third party who can also be
effectively reviewed and regulated, there is a possibility this will provide a suitable
bridge between the individual and the state. This could provide an absolute and full
proof safeguard capable of protecting anyone who is at risk of legalised euthanasia
and against the practice of involuntary euthanasia.

4.5 Doctors and the Best Interest of Patients

Academics86 and English and Welsh case law87 have highlighted that in some
situations, the best interest of a patient or individual can supersede their sanctity of
life. The importance of this concept is evidenced in Re S88 where the Court of Appeal

85 Chambaere K Palliative Care Development in Countries with a Euthanasia Law Report Commission on Assisted Dying
Briefing Papers 2011
86 Herring J Medical law and ethics 4th edition 2012
87 Airedale NHS Trust v Bland [1993] 2 WLR 316
88 Re S adult patient: sterilisation Fam 15 [2000] All ER D 683

P a g e | 38

held The courts should move onto the wider and paramount consideration of which
option was in the patients best interest. If a persons best interest can overrule their
sanctity of life, it may be able to act as an effective safeguard against the slippery
slope, serving as an independent medical instrument capable of balancing personal
autonomy and state protectionism. In a scenario where physician-assisted suicide is
legalised in England and Wales, investigating the doctor-patient relationship in order
to determine not only what is in a patients best interest, but who decides it, is
essential.

Although encouraging or assisting the suicide or another is an offence carrying a


maximum penalty of 14 years imprisonment,89 case law in England and Wales has
demonstrated a reluctance by the courts to convict doctors who have acted out of
compassion to shorten their patients lives. For example R v Adams90 in 1957, a
patient died as a result of the doctor administering large doses of morphine and
heroin to ease the pain. Remarkably, Dr Adams was acquitted of the murder charge
as according to Devlin LJ:

If the first purpose of medicine, the restoration of health, can no longer be


achieved, he is entitled to do all that is proper and necessary to relieve
pain and suffering, even if the measures he takes may incidentally shorten
life.91

89 Suicide Act 1961 s2


90 R v Adams [1957] CrimLRev 365
91 G Williams The Sanctity of Life and the Criminal Law 1956 pp 289

P a g e | 39

Similarly, in the 1990 case of R v Lodwig,92 a doctor who gave his terminally ill
patient a concoction of medications which resulted in their death, was found not
guilty of murder as it was held he did not intend death as it was not his primary
purpose to end life. The doctors intention is the key influencing factor as confirmed
in the more recent case of R v Cox.93 Dr Cox was found guilty of attempted murder
due to compelling evidence of his intention to cause a patients death. Ognall J
stated in the judgment that such conduct can never be legally excused, however,
sometimes it can be explained.

Although avoiding prosecution cannot be guaranteed,94 the courts approach to


taking the doctors intention into consideration and indicating their reluctance to
convict demonstrates that if any form of euthanasia were to be legalised, it would
likely be physician-assisted suicide. So who should decide what is in the patients
best interest? The law takes the view that doctors primary duty is to act in the best
interests of their patients,95 but ultimately the court should decide.96

Donchin97 endorses a greater level of responsibility on the part of the doctor,


although concedes a better understanding of the patients social, economic and
religious situation could be gained through cultivating a relationship with the family;
on the other hand this could further diminish a patients autonomy if family members
can influence the doctors actions.

92 R v Lodwig unreported (1990)


93 R v Cox (1992) CCR
94 R. Pretty v DPP [2002]
95 Airedale NHS Trust v Bland [1993] 2 WLR 316
96 Re J (a minor) (wardship: medical treatment) [1991] 1 FLR 366
97 Donchin A Autonomy interdependence and assisted suicide: respecting boundaries/crossing lines Bioethics 2000

P a g e | 40

In contrast to Donchins view of encouraging greater responsibility on part of the


doctor, Veatch98 undermines the role of the medical professional in deciding, arguing
although they may have expertise in medical issues, they will not know a patients
religious or ethical views nor personal values or wishes. Without a holistic
appreciation of the patients values and wishes, there is an obvious risk that doctors
may marginalise personal autonomy by determining what is in their best interest. If
autonomy is compromised to such an extent, relying on best interests may not be
able to protect vulnerable patients against involuntary euthanasia.

Going further, Donnelly99 argues that since the doctors are not legally trained, they
may encounter significant difficulties in carrying out the essentially legal task of
assessing a patients capacity; an important part of establishing whether informed
consent has been given. For example, they may lack the legal awareness of the Re
B100 test for mental incapacity. Veatch and Donchin to a certain extent recommend
that relatives of patients are better placed to decide what is in the best interest of the
patient. Then again, a medical professionals emotional detachment could make
them an effective assessor of a patients best interests.101 Evidently, who decides
what is in a patients best interest is proving to be a highly contentious issue.

There is merit in the solution of proposing a multilateral decision making process


which could be established to ensure that all key interested parties can express their

98 Veatch R The Basics of Bioethics Upper Saddle River NJ Prentice-Hall 2000


99 Donnelly M Capacity assessment under the Mental Capacity Act 2005: Delivering on the functional approach? Legal
Studies vol 29 issue 3 2009
100 Re B (a child) [2009] UKSC 5
101 Herring J Medical law and ethics 4th edition 2012 OUP pp 149-221 472-563

P a g e | 41

views to recognise the patients best interest. Developing a strong doctor-patient


relationship could be a way of ensuring the patients best interest is considered whilst
preserving autonomy to an extent.

4.6 The Doctor-Patient Relationship

Bartlett102 proposes that a useful model for doctor-patient relationships would be to


regard the doctor as a fiduciary, defined by Grubb as arising when:

A person (beneficiary) entrusts another (fiduciary) with a power which


may affect the beneficiarys interests and which is to be exclusively
exercised for the beneficiarys benefit.103

This model recognises the reality that the medical professional has the power of
knowledge in the relationship, but emphasises that it must be used for the benefit of
the patient.

By establishing a doctor-patient relationship where the doctors medical role can be


preserved while simultaneously protecting an individuals personal autonomy would
go a long way in avoiding the slippery slope and constructing a medical and social
physician-assisted suicide framework capable of protecting vulnerable members of
society. If such a relationship could be successfully developed in England and

102 Bartlett P The Consequences of Incapacity Blackstone Press Ltd 1997


103 Grubb 2004

P a g e | 42

Wales, the further question of the physicians suitability in performing the assisted
suicide should be asked.

The Hippocratic Oath states I will use treatments for the benefit of the ill in
accordance with my ability and my judgment, but from what is to their harm and
injustice I will keep them,104 which offers a virtuous foundation for the ethical
judgments of medical practitioners, but how do these ethical values impact medical
practice? In his research of Dutch case law, Hendin105 found patient autonomy was
the rationale for assisting suicide when doctors were hesitant or unsure of their
responsibility, suggesting they may need more training.

If we assume doctors can be adequately trained in performing physician-assisted


suicide, how do their personal and professional ethics of practice, codified in the
Hippocratic Oath, transfer to deciding what is in the patients best interest?

Kennedy106 states that even if incomprehensible to others, if the beliefs and values of
the patient are long standing and have formed the basis for all the patients decisions
about his life, there is a strong argument to suggest the doctor should respect and
give effect to the patients decision based on them. Failing to do so will result in
serious and destructive consequences. This position advocates giving greater
priority to the patients own ability to decide what is in their best interest, rather than
relying on medical expertise to determine it.

104 Jones WHS The Doctors Oath Cambridge UP 1924


105 Hendin H The Slippery Slope: The Dutch Example 35 DUQ 1996
106 Kennedy I Patients, doctors and human rights London Mansell 1991

P a g e | 43

Even if a multilateral decision making process can be implemented in conjunction


with prioritising the patients best interest, Lewis107 argues the concept of best
interest is flawed and too weak to form a regulatory medical framework capable of
preventing the slippery slope, regardless of who decides the patients best interest.

Further, Cantor108 criticises the principle of best interest for being unduly
individualistic and believes that the legal interpretation of the best interest principle
would suggest that acts of altruism should not be forced on an incompetent person.
This ambiguity and lack of scope is a criticism Holm109 also makes, citing the
vagueness which surrounds the concept which has been described as empty
rhetoric110 and can be applied to mean whatever anyone wants it to mean.
Essentially, as the common law currently stands,111 an individual judge or medical
professional can declare treatment to be in a patients best interests without
consultation, oversight or scrutiny.

Keown112 illustrates this with the example of one doctor saying a patient is entitled
to stay alive, whereas another might see no merit in perpetuating a life of which the
patient is unaware. In terms of the sanctity of life, Keown is concerned with the legal
precedent Airedale NHS Trust v Bland113 created as it favours a consequentialist
ethic, proponents of which included Jeremy Bentham, which is in Keowns words,
deeply inconsistent with the principle of the sanctity of life.

107 Lewis P Assisted Dying and legal change Oxford University Press 2007
108 Cantor N Making medical decisions for the profoundly mentally disabled Cambridge MA MIT Press 2005
109 Holm S Edgar A Best interest: a philosophical critique Health Care Anal 16 3:197-207 2008 PMID 18642084
110 Kennedy at 90 1991
111 Re J (a minor) (wardship: medical treatment) [1991] 1 FLR 366
112 Keown J Doctors and Patients: Hard Case Bad Law New Ethics Cambridge LJ Vol 52 No 2 1993
113 Airedale NHS Trust v Bland [1993] 2 WLR 316

P a g e | 44

These common law precedents, legal guidelines and medical responsibilities elevate
a doctors standing above that of a patients own subjective feelings and wishes,
promoting a climate of protectionism and further damaging personal autonomy by
shifting the focus of legal inquiry to the doctor instead of the patient.114 Dutch case
law115 has indicated the courts have abrogated their responsibility as a regulator of
medical practice and in addition personal autonomy is not a determinative factor for
considering euthanasia.

Can relying on good medical practice as a of method of avoiding the slippery slope
by integrating state protectionism, personal autonomy, medical expertise and the
best interest of the patient deliver the silver bullet that is required to protect the
vulnerable from the risks associated with legalising euthanasia?

The uncertainty of the practical application of the best interest principle in


conjunction with the comparative jurisdictional statistics which clearly highlight the
prevalence of euthanasia. It also highlights the problems of accurate voluntary and
physician assisted suicide reporting, suggest relying on medical practice and
concepts of best interest may not be enough to avoid the slippery slope and protect
those at greatest risk following the legalisation of the practice.

Of note however, is the significant contrast between the legal and medical approach
to euthanasia in England and Wales, where it is illegal but still practiced in some
circumstances (for example Re A and unreported physician-assisted suicide) and the

114 Mason A Crossing the Rubicon: The Netherlands steady March towards Involuntary Euthanasia Brooklyn Journal of
International Law Vol 31 2006
115 Alkmaar Case Nederlands Jurisprudentie 1984 No 106 Supreme Court

P a g e | 45

Netherlands, where forms of euthanasia have been legalised and the incidence of
the practice is far greater. This jurisdictional comparison allows for a unique
opportunity to evaluate the example set by the Netherlands in legalising euthanasia
and its approach to personal autonomy and state protectionism.

4.7 Conclusion

The debate regarding the extent to which respect for individual autonomy should be
preserved is clearly a contentious issue. Proponents of euthanasia fear that the
slippery slope effect will lead to involuntary forms of euthanasia, resulting in the
marginalisation of personal autonomy by doctors, bioethical institutions and the
state. The suggested solution is stricter eligibility criteria and requirements for
providing informed consent to euthanasia. However many fear this will mean that
fewer patients are able to provide consent resulting in greater numbers of patients
who will be considered to lack the capacity to provide consent and as a result, the
proposed solution will only exacerbate the problem.

Many still hold the belief that personal autonomy should be restricted as unregulated
autonomy has been described as potentially disastrous116 and there are still notable
and unanswered questions regarding the interest of the state in preserving life and
its ability to enforce this against the will of the individual to die. In this authors
opinion, there is common ground within the euthanasia debate through mutual
appreciation of the inherent value of human life. This common and mutual respect for

116 Keown 2002:53

P a g e | 46

autonomy will endure and, according to some,117 may provide a sufficient defence
against the slippery slope of euthanasia.

The irony of the states interest in preserving life is that although preservation of life
may appear to protect the right to life of everyone, including those at greatest risk. It
does marginalise personal autonomy. Clearly in order to balance, a third party was
needed to bridge the divide. This is where doctors have been able, to some extent,
become the necessary independent, third party that can successfully balance
autonomy and state protectionism. Through utilising the concept of best interest
highlighted by the limitations of requiring informed consent, doctors might be able to
preserve autonomy while protecting the vulnerable, such as those who are
unconscious or incapacitated. In reality, many academics are not convinced about
the ability and suitability of doctors to judge an individuals best interest, but in the
absence of adequate legislation in England and Wales, it may be the best way of
avoiding the slippery slope.

At this point, there is no clear solution but the best interest principle has the best
chance to protect the vulnerable and prevent the slippery slope that we have seen so
far. As such, we must move on to consider and evaluate the Dutch approach to
balancing personal autonomy and state protectionism in greater deal to evaluate
their methodology and approach in finding a successful balance between the state
and the individual. This will highlight how they have attempted to protect the
vulnerable and avoid the slippery slope.

117 Dworkin R Life's Dominion An Argument about Abortion Euthanasia and Individual Freedom New York Knopf at 84 1993

P a g e | 47

5. Chapter 3
Evaluating the Dutch Approach

5.1 Introduction

This dissertation has referenced the Dutch approach throughout, with the aim of
comparing and contrasting the legal, medical and governmental differences between
the two states. Lewis118 submits that the legalisation of euthanasia is often treated by
judges and commentators as a question which transcends national boundaries and
diverse legal systems119 and is represented none more so than by the widespread
use of the Dutch example in other jurisdictions. So what can we learn from the Dutch
approach to balancing autonomy and state protectionism?

5.2 Good Governance; the Individual and the State

Following the definitions used by the United Nations Educational, Scientific and
Cultural Organisation (UNESCO),120 the Organisation for Economic Co-cooperation
and development (OECD)121 and the European Commission (EC),122 good
governance should satisfy nine principles: respect for the rule of law, transparency,
participation, accountability, effectiveness, coherence, responsiveness,
proportionality and subsidiarity. Although this is not a political science study, it could
be argued that the courts and the DPP in England and Wales have interpreted and
118 Lewis P The Empirical Slippery Slope from Voluntary to Non-Voluntary Euthanasia 35 JL Med & Ethics 197 2007
119 Lewis P Assisted Dying and legal change Oxford University Press 2007
120 UNESCO E-Governance Capacity Building Initiative 2005
121 Directorate for Public Governance and Territorial Development OECD Principle Elements of Good Governance 2004
122 European Commission White Paper on European Governance COM 428 Final 2001

P a g e | 48

applied the law relating to assisted suicide in such a way that disregards the
principles of good governance to a significant extent.

In contrast, the Netherlands according to McCann,123 which legalised physicianassisted suicide following the 2002 act124, relies substantially on a kind of publicprivate governance to create a balance between autonomy and state protectionism.
This mode of governance has de-politicised the issue, going as far as to remove the
negative influence of state politics which many fear would have directly affected
individuals in the absence of their absolute autonomy. McCann believes the Dutch
approach, which collaborates with stakeholders and medical experts, respects a
number of the European Commissions good governance principles. As a result, he
feels the Dutch have developed a progressive and positive approach to the problem.

What is observable is the stark contrast between England and Wales and the
Netherlands in terms of their socio-political approach to preserving autonomy. The
Dutch example advocates an approach that demonstrates the government taking a
step back and allowing the relevant people and institutions, or stakeholders, to
control regulation and oversight. If the Nicklinson125 case had been approached
using the Dutch system, in contrast to the actual outcome there may have been a
prospect if the relevant stakeholders could agree and without having to endure
interference from the state, for him to be euthanised.

123 McCann A Free Movement of Euthanasia Services in Europe? Law and Governance Perspective 2012
124 Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2002
125 Nicklinson v MoJ [2012] EWHC 304 QB

P a g e | 49

Clearly good governance has a role in how successfully euthanasia laws can be
implemented but notwithstanding differing political contexts, the Dutch approach
clearly advocates giving greater weight to individual autonomy, through reducing
government influence and oversight, as the solution to the issue of balancing state
and individual rights. This comparative evaluation of a different legal jurisdiction has,
on the face of it, revealed a possible solution to the main issue preventing personal
autonomy from being the effective safeguard against the slippery slope that the
principle of the sanctity of life could not, but how successful has this balanced
approach actually been in the Netherlands?

There is evidence to suggest Keowns fear of uncontrolled autonomy, resulting in


disastrous consequences,126 has merit. Pereira highlights a tangible example of the
slippery slope in operation and confirms the fear raised by Keown:

In 30 years, the Netherlands has moved from euthanasia of people who


are terminally ill, to euthanasia of those who are chronically ill; from
euthanasia for physical illness, to euthanasia for mental illness; from
euthanasia for mental illness, to euthanasia for psychological distress or
mental sufferingand now to euthanasia simply if a person is over the
age of 70 and tired of living.127

This form of selective endorsement of autonomy is evidenced by the Royal Dutch


Medical Association (RDMA) in 2006 claiming being over the age of 70 and tired of

126 Keown at 53 2002


127 Pereira J Legalizing euthanasia or assisted suicide: the illusion of safeguards and controls Volume 18 No 2 2011

P a g e | 50

living was a sufficient reason to request euthanasia.128 This is certainly a lowering of


standards from those who are terminally ill as initially set out by the 2002 act,
confirming Conleys129 fear.

The consequence of unregulated levels of autonomy in the Netherlands has, in some


circumstances, resulted in the very fears that their approach had purported to offer a
solution to, happening anyway. In addition, in 1986 the RDMA highlighted the
significance of social variables in an individuals decision making process.130 It found
Dutch citizens in their 60s were most likely to request euthanasia and that social
pressures associated with that time of life including retirement, children leaving home
and deteriorating health all contributed to what is described as social traumas that
led to the increase in euthanasia requests. Conley131 compares the issue to that of
legalised abortion which eroded the respect for our children, similarly, he contends
legalised euthanasia will erode our responsibility toward out parents.

Put simply, giving greater weight to autonomy and reducing government oversight
has led to a kind of selective endorsement of autonomy which has meant the
eligibility criteria for being euthanised has declined and as a result, the protection for
vulnerable people has also declined; the slippery slope in action.

Critics confirm this evaluation of the Dutch approach,132 pointing to this as evidence
suggesting that any relaxation of the absolute prohibition of any kind of euthanasia

128 Pereira J 'Legalizing euthanasia or assisted suicide: the illusion of safeguards and controls Volume 18 No 2 2011
129 Conley J Libertarian Euthanasia 1994
130 Select Committee on Medical Ethics Report London HMSO House of Lords paper 21-I 1994
131 Conley J Libertarian Euthanasia 1994
132 Lewis P The Empirical Slippery Slope from Voluntary to Non-Voluntary Euthanasia 35 JL Med & Ethics 197 2007

P a g e | 51

will lead us down the slippery slope.133 Lewis134 argues that we, in England and
Wales, should learn from the Dutch experience but recognise because of different
social environments and legal contexts, those experiences do not translate directly to
other jurisdictions. Griffiths agrees suggesting:

It is clear many of the things to which opponents of euthanasia point as


the horribles to which legislation will lead, in fact pre-existed legislation of
euthanasia in the Netherlands.135

Consequently, the solution offered by the Dutch in how personal autonomy can be
balanced against state protectionism has failed to achieve what is required,
protecting the vulnerable and alleviating the fear of the slippery slope.

5.3 Conclusion

The Dutch approach demonstrates that even if a balance between enforced state
protectionism and personal choice can be made, giving greater, unregulated, priority
to personal autonomy is not the solution. Whereas, keeping government input to a
minimum and relying on medical professionals, institutions and other stakeholders to
implement and regulate physician-assisted suicide is a noteworthy example of how
to balance the relationship between the state and the individual.

133 Rodriguez v British Columbia Attorney-General [1993] 3 SCR 519 603


134 Lewis P The Empirical Slippery Slope from Voluntary to Non-Voluntary Euthanasia 35 JL Med & Ethics 197 2007
135 Griffiths supra note 33 at 202

P a g e | 52

6. Conclusion

This dissertation aimed to explore the hypothetical scenario where euthanasia is


legalised in England and Wales and how vulnerable groups of society, those at
greatest risk owing to social, medical and political pressures, could be protected.
Investigating what safeguards would be necessary, their potential effectiveness and
what further safety measures may be needed in order to protect our individual right
to life and choice was the primary aim of this dissertation.

The current law with regard to assisted suicide in England and Wales is considered
inadequate and incoherent according to a Parliamentary commission.136 Without an
effective and established legal framework, upon legalisation it will be difficult to avoid
the slippery slope which leads to forms of involuntary euthanasia, leaving the
vulnerable at the greatest risk to being exposed to the practice without adequate
safeguards in place. The need for safeguards beyond mere legislation is clearly
required to alleviate the fears of those in opposition to the practice.

This led to an investigation into the intrinsic human right of the right to life, that many
believe we are unquestionably entitled through the supposedly inviolable principle of
the sanctity of life. In theory, through incorporation of international human rights law
into our own domestic law,137 the state has an obligation to preserve life. Despite
this, a number of recent landmark cases have highlighted that the application of the
sanctity of life principle can be flexible.138 Without this absolute protection of our right
136 The Commission on Assisted Dying ISBN 978-1-906693-92-3 2012
137 Human Rights Act 1998
138 Re A children conjoined twins: surgical separation [2000] 4 ALL ER 961 per Ward LJ at 999J-1000A and 1000G-H

P a g e | 53

to life, if euthanasia were legalised we would be at significant risk of being exposed


to the slippery slope which would marginalise our right to life even further.

Additional investigation was required into alternative safeguards. Beyond losing our
right to life, falling down the slippery slope would also result in the marginalisation of
our personal autonomy; our right to choose.139 The idea that preserving our
individual personal autonomy could avoid the slippery slope and protect those
vulnerable to the practice of assisted suicide was encouraging. However, although
the states duty to preserve the sanctity of life is not applied consistently enough to
make it inviolable, it does still oblige the state to preserve life, even against a
persons wishes. As such, finding a balance between personal autonomy and state
protectionism was crucial before we could consider autonomy as a sufficiently strong
safeguard against the slippery slope.140

The Dutch example demonstrated, prima facie, a successful balance where personal
autonomy was given priority and the states duty to preserve life was given a backseat, keeping government input and oversight to a minimum. However, even though
a balance was found between the individual and the state, the Dutch approach was
described as potentially disastrous.141 Many observers142 believe there are serious
limitations in using unregulated personal autonomy as a safeguard against the
slippery slope with the suggestion that even though a decision is made

139 X v Germany (1984) 7 EHRR 152


140 McCann A Free Movement of Euthanasia Services in Europe? Law and Governance Perspective 2012
141 Keown 2002:53
142 Smith W Whats Choice Got to Do with Dutch Euthanasia National Right to Life News 2011

P a g e | 54

autonomously, it does not mean it is deserving of respect or is in the best interest of


the individual.

On the other hand, although giving greater weight to the states duty to preserve life,
which would appear to protect life for everyone including the vulnerable, it does
seriously marginalise personal autonomy.143 Even so, it is observable that the state
is unable to categorically enforce the sanctity of life principle, therefore it would be
naive to expect it could effectively protect lives against euthanasia.

Without a conclusive solution to the issue of balancing personal autonomy and state
protectionism, the ethical considerations and medical practices in relation to the best
interest of the patient and the role of the doctor who would perform the physicianassisted suicide had the potential to bridge the divide between autonomy and
protectionism. Potentially, a feat that even the Dutch with their policy of autonomy
over governance, failed to successfully achieve

With the courts reluctance to prosecute144 and the factor of the patients best interest
seemingly being able to override the core principle of the sanctity of life,145 a reliance
on the good medical practice of doctors who would perform the physician-assisted
suicide, who could ensure the patients welfare was paramount, appeared to be an
ideal safeguard against the slippery slope. Unfortunately, the uncertainty and
inconsistency of the practical application of the best interest principle in addition to
an unscrupulous culture within the medical profession with regard to the reporting of

143 Herring J Protecting Vulnerable Adults Oxford Legal Studies Research Paper No 10 2010
144 Policy for Prosecution in Respect of Cases of Encouraging or Assisting Suicide issued by the DPP 2010
145 Re A children conjoined twins: surgical separation [2000] 4 ALL ER 961

P a g e | 55

the incidence of euthanasia means it cannot solely be relied on. Moreover, relying on
good medical practice to render the dispute between the state and the individual
moot by putting the best interest concept above all else to protect the vulnerable,
appeared to be unrealistic in practice.146

The slippery slope is not only a metaphor for physician-assisted suicide leading to
involuntary euthanasia, as a combined result of the marginalisation of personal
autonomy and the vulnerable, those at greatest risk to the practice, not being
adequately protected from it; but the connotations associated with the phrase are apt
in describing the process of finding a solution to avoid it.

Individually, the sanctity of life principle, personal autonomy and best interest
concepts cannot provide a comprehensive solution that alleviates the fears of those
in opposition to the legalisation of euthanasia. However if balanced and used
collectively, there is a good chance the slippery slope can be avoided. Further, if the
sanctity of life principle can be consistently and rigidly applied in the common law,
although personal autonomy will be marginalised, an unquestionable right to life
would protect the vulnerable and prevent involuntary euthanasia.

Although this solution echoes the current legal situation in England and Wales, this
has given rise to the issue of the best interest of individuals including the ethical
considerations of preserving life even when life is no longer desired.147

146 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582


147 Nicklinson v MoJ [2012] EWHC 304 (QB)

P a g e | 56

The evidence suggests ensuring the prioritisation of a patients best interest while
being subject to a rigid enforcement of the sanctity of life by the state government is
impossible; they are mutually exclusive. Even if a compromise can be made, any
compromise leads to weakness which in turn facilitates the slippery slope and
negates any benefit of the safeguard.

This author can only conclude by echoing the thoughts of Herring who writes it is
clear the law is unclear.148 Further study is required of other jurisdictions who
have legalised euthanasia to some extent such as the U.S.A, Belgium or
Luxembourg by evaluating their level of success in defending against the slippery
slope. Adequate safeguards need to be found quickly however, as individuals such
as Paul Lamb149 are continuing the work of Tony Nicklinson, among others, in
actively seeking to change the law on euthanasia in England and Wales.

148 Herring J Medical law and ethics 4th edition OUP pp 472-563 2012
149 Coleman C Right to die: Paul Lamb takes up Tony Nicklinson fight BBC News 2013 <http://www.bbc.co.uk/news/uk22191059> accessed 25th May 2013

P a g e | 57

7. Bibliography

7.1 Cases
Nicklinson v MoJ [2012] EWHC 304 (QB)
Dianne Pretty v DPP [2001] UKHL 61
Pretty v United Kingdom (2002)
Brown et al [1993] 2 WLR 556 at 588G
Airedale NHS Trust v Bland [1993] 2 WLR 316
Re A children conjoined twins: surgical separation [2000] 4 ALL ER 961
R Purdy v DPP [2010]
R v Cox (1992) CCR
R v Adams [1957] CrimLRev 365
Re J a minor wardship: medical treatment [1991] 1 FLR 366
Re S adult patient: sterilisation Fam 15 [2000] All ER D 683
Re B (a child) [2009] UKSC 5
X v UK (1978) 14 DR 31
X v Germany (1984) 7 EHRR 152
Osman v UK (1998) 29 EHRR 245
Rodriguez v British Columbia Attorney-General [1993] 3 SCR 519 603
Re SA Vulnerable Adult with Capacity: Marriage [2005] EWHC 2942 Fam para 77
R v Lodwig unreported (1990)
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
W v M and Others [2011] EWHC 2443
Alkmaar Case Nederlands Jurisprudentie No 106 Supreme Court 1984

P a g e | 58

7.2 Statutes and Legislation

Coroners and Justice Act 2010


Direction 9E of the rules of the Court of Protection 2007
Human Rights Act 1998
Mental Capacity Act 2005
Suicide Act 1961
The Dutch Termination of Life on Request and Assisted Suicide Act of 2002

7.3 Law Reports

Lord Falconer The Commission on Assisted Dying ISBN 978-1-906693-92-3 2012


Department Of Health End of Life Care Strategy promoting high quality care for all
adults at the end of life 2008
Boston College International & Comparative Law Review Volume 6 Issue 2 1983
Policy for Prosecution in Respect of Cases of Encouraging or Assisting Suicide
issued by the DPP 2010
Archbold Review Case Comment, Assisting suicide: whether defence of necessity
available 2012
UNESCO E-Governance Capacity Building Initiative 2005
Directorate for Public Governance and Territorial Development OECD Principle
Elements of Good Governance 2004
European Commission White Paper on European Governance COM 428 Final 2001
Select Committee on Medical Ethics Report London HMSO House of Lords paper
21-I 1994

P a g e | 59

Policy for Prosecution in Respect of Cases of Encouraging or Assisting Suicide


issued by the DPP 2010
Lipscombe S Colthart G, House of Commons commission on Assisted Dying 2012

7.4 Scholarly Articles

Veatch R, The Basics of Bioethics Upper Saddle River NJ Prentice-Hall 2000


Smith S, Evidence for the Practical Slippery Slope in the Debate on PAS and
Euthanasia Medical Law Review 2004
McCann A, Free Movement of Euthanasia Services in Europe? A Law and
Governance Perspective 2012
Chambaere K, Palliative Care Development in Countries with a Euthanasia Law
Commission on Assisted Dying 2011
Donchin A, Autonomy interdependence and assisted suicide: respecting
boundaries/crossing lines Bioethics 2000
Suber P, Against the Sanctity of Life Earlham College 1996
Lewis P, Assisted Dying and Legal Change Oxford University Press 2007
Lewis P The Empirical Slippery Slope from Voluntary to Non-Voluntary Euthanasia
35 JL Med & Ethics 197 2007
Korff D, The Right to Life, A guide to the implementation of Article 2 of the ECHR
Human Rights handbooks No 8 2006
Smith W, Whats Choice Got to Do with Dutch Euthanasia Right to Life 2011
Huxtable R, D(en)ying Life The Sanctity of Life Doctrine in English Law 2002
Coggon J, Ignoring the moral & intellectual shape of the law after Bland: the
unintended side-effect of a sorry compromise

P a g e | 60

Chua-Eoan, H The life and Deaths of Jack Kevorkian 1928-2011 Time 2011
Conley J, Libertarian Euthanasia 1994
Taylor E, Practical Autonomy and Bioethics Routledge 2009
Stewart C, Peisah C Draper B A test for mental capacity to request assisted
suicide Journal of Medical Ethics vol 37 39 2011
Herring J, The Caesarean Section Cases and the Supremacy of Autonomy in
Freeman and Lewis Law and Medicine 2000
Herring J, Protecting Vulnerable Adults Oxford Legal Studies Research No. 10 2010
Herring J, Medical law and ethics 4th edition 2012 OUP
Dworkin R, Life's Dominion an Argument about Abortion Euthanasia and Individual
Freedom New York Knopf 1993
ONeill O Autonomy and Trust in Bioethics Cambridge University Press 2002
Williams G, The Sanctity of Life and the Criminal Law 1956
Cohen-Almagor R, Shmueli M, The Quality of Life Argument in Medical Ethics A
Critical View Vol 21 Issue No 2
Mill J S, On Liberty Oxford University Press 1991
Pereira J, Legalizing euthanasia or assisted suicide: the illusion of safeguards and
controls MBChB MSc Volume 18 No 2 2011
Conley J, Libertarian Euthanasia Legal Journals 1994
Widdershoven G, Commentary: Euthanasia in Europe: a critique of the Marty report
J Med Ethics 2006
Saunders P, Why Euthanasia should not be legalised Medical Fellowship 1995
Keown J, Doctors and Patients: Hard Case Bad Law Cambridge LJ Vol 52 1993
Keown J, Euthanasia, ethics, and public policy: Against legalisation 2002
Kirby MD, Informed Consent: What does it mean? J Med Ethics 1983

P a g e | 61

ONeil O, Autonomy and Trust in Bioethics Cambridge University Press 2002


Wolpe P, Ethics and complementary modalities Encyclopaedia of Complementary
Health Practices Springer Publishing Co New York 1998
Epstein M, Why effective consent presupposes autonomous authorisation: a counter
orthodox argument Medical Ethics 2006
Dworkin R, Life's Dominion An Argument about Abortion Euthanasia and Individual
Freedom New York Knopf 1993
Raanan G, Sanctity of Life law has gone too far BMJ 2012
Seale C Written evidence to the Commission on Assisted Dying Hastening death in
end-of-life care: A survey of doctors 2012
Van der Maas et al 1991 Van der Wal & Van der Maas 1996 Van der Wal et al 2003
Wachter M, Active Euthanasia in the Netherlands Jama 1989
Chambaere K, Palliative Care Development in Countries with a Euthanasia Law
Report Commission on Assisted Dying 2011
Bartlett P, The Consequences of Incapacity Blackstone Press Ltd 1997
Jones WHS, The Doctors Oath Cambridge UP 1924
Hendin H, the Slippery Slope: The Dutch Example 35 DUQ 1996
Donnelly M, Capacity assessment under the Mental Capacity Act 2005 Legal Studies
vol 29 issue 3 2009
Kennedy I, Patients, doctors and human rights London Mansell 1991
Cantor N, Making medical decisions for the profoundly mentally disabled Cambridge
MA MIT Press 2005
Holm S, Edgar A Best interest: a philosophical critique 197-207 2008
Mason A, Crossing the Rubicon: The Netherlands steady March towards Involuntary
Euthanasia Brooklyn Journal of International Law Vol 31 2006.