A futile defence of bland: A reply to Andrew McGee

Medical Law Review

Volumn 13, Issue 3, 2005, Pages 393-402

  Keown, John ^a  

^a GEORGETOWN UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 28544443998     PISSN: 09670742     EISSN: None     Source Type: Journal    
DOI: 10.1093/medlaw/fwi032     Document Type: Article

References (45)

1. Andrew McGee, 'Finding a Way through the Ethical and Legal Maze: Withdrawal of Medical Treatment and Euthanasia' (2005) 13 Med. L. Rev. 357-85.
2. Ibid. at 365.
3. Ibid. at 365.
4. Ibid. at 366.
5. Ibid. at 368.
6. Ibid. at 368.
7. See J.M. Finnis, 'Intention and Side-Effects' in R.G. Frey and Christopher W. Morris (eds) Liability and Responsibility (Cambridge University Press 1991) 32. A better criticism of the plane bomber hypothetical is that it tempts to conflation of intention and foresight because of the understandable desire to convict the bomber of the murder of any passengers who die.
8. As Lord Goff has pointed out, however, the right way to go about convicting the bomber is to extend the mens rea of murder to include 'wicked recklessness' and not to stretch intention to cover foresight. Lord Goff, 'The Mental Element in the Crime of Murder' (1988) 104 L.Q.R. 30.
9. Supra, n. 1 at 368.
10. Ibid. at 369. His summary of the principle overlooks its requirement of proportionality.
11. Ibid. at 360. Original emphasis. It is not clear what he means by this.
12. Ibid. at 371.
13. Ibid. at 371. Emphasis added.
14. Ibid. at 372.
15. Ibid. at 372.
16. Ibid. at n.45.
17. Ibid. at 363. Footnote omitted.
18. I have said is that it is unclear why the majority concluded the doctor's purpose was to kill, not that they were wrong to do so: John Keown, Euthanasia, Ethics and Public Policy (Cambridge University Press 2002) at 218 n. 2.
19. As his Lordship stated: '... the question is not whether it is in the best interests of the patient that he should die. The question is whether it is in the best interests of the patient that his life should be prolonged by the continuance of this form of medical treatment or care'. [1993] A.C.789 at 868. He continued (at 869): 'As Sir Thomas Bingham M.R. pointed out ... in the present case, medical treatment or care may be provided for a number of different purposes .... But for my part I cannot see that medical treatment is appropriate or requisite simply to prolong a patient's life, when such treatment has no therapeutic purpose of any kind, as where it is futile because the patient is unconscious and there is no prospect of any improvement in his condition'.
20. Ibid. at 374.
21. [2002] 1 F.L.R. 1090.
22. Supra, n. 1 at 378.
23. Ibid. at 378. Original emphasis. Footnote omitted.
24. R v. Collins and Ashworth Hospital Authority ex parte Brady [2000] 8 Lloyd's Rep. Med. 355 at 367 (Kay J., as he then was);
25. R (Pretty) v. Director of Public Prosecutions [2002] 1 A.C. 800 at 825 (per Lord Bingham).
26. See generally John Keown, op. cit., n. 17, chapter 19.
27. Supra, n. 1 at 377; n. 55.
28. Ibid. at 377.
29. Ibid. at 378.
30. Ibid. at 378.
31. Ibid. at 379.
32. Ibid. Original emphasis.
33. Ibid. Original emphasis.
34. See the judgment of Ward L.J. in Re A [2001] Fam. 147.
35. Supra, n. 23.
36. N.H.S. Trust A v. M;
37. N.H.S. Trust B v. H [2001] Fam. 348.
38. Supra, n. 1 at 384.
39. Ibid. at 382.
40. Ibid. Original emphasis.
41. Ibid. at 383.
42. Ibid.
43. [1993] A.C. 789 at 886-887.
44. Ibid. at 895-896.
45. Ibid. at 883-884.