Non-voluntary passive euthanasia: The social consequences of euphemisms

European Journal of Health Law

Volumn 14, Issue 3, 2007, Pages 221-240

  Sayers, Gwen M ^a  

^a IMPERIAL COLLEGE LONDON   (United Kingdom)

Author keywords

Bland; Burke; Futile treatment; Mental Capacity Act 2005; Passive euthanasia

Indexed keywords

DENIAL; HUMAN; LOGIC; MEDICAL DECISION MAKING; MEDICAL ETHICS; MEDICOLEGAL ASPECT; MENTAL CAPACITY; NETHERLANDS; PASSIVE EUTHANASIA; PERSISTENT VEGETATIVE STATE; QUALITY OF LIFE; REVIEW; SOCIAL PSYCHOLOGY; TREATMENT WITHDRAWAL; UNITED KINGDOM;

ADVANCE DIRECTIVES; DECISION MAKING; EUTHANASIA, PASSIVE; GREAT BRITAIN; HUMAN RIGHTS; HUMANS; LIFE SUPPORT CARE; MEDICAL FUTILITY; MENTAL COMPETENCY; MORALS; QUALITY OF LIFE; SOCIAL VALUES; TERMINOLOGY AS TOPIC; VALUE OF LIFE;

EID: 35848945080     PISSN: 09290273     EISSN: 15718093     Source Type: Journal    
DOI: 10.1163/092902707X232980     Document Type: Review

References (124)

1. Airedale NHS Trust v Bland [1993] 2 WLR 316.
2. E. Garrard, S. Wilkinson 'Passive euthanasia' (2005) 31 Journal of Medical Ethics 64 at 64-65. Although, in the UK, passive euthanasia is defined as withholding or withdrawing treatment with the intention of hastening death in the patient's best interests, in some countries like the Netherlands, the term 'euthanasia' applies only to voluntary active euthanasia. All withholding and withdrawing treatment decisions are therefore subsumed into the category of medical decisions made at the end of life and are so distinguished from 'euthanasia'. These end-of-life decisions may be justified by, for instance, the patient's refusal of treatment, or because treatment is not medically indicated.
3. R. Fenigsen 'The Report of the Dutch Governmental Committee on Euthanasia' (1991) 7 Issues in Law & Medicine at 339.
4. Ibid. at 340.
5. P.J. van der Maas, G. Van der Wal, I. Haverkate, et al. 'Euthanasia, physician-assisted suicide, and other medical practices involving the end of life in the Netherlands, 1990-1995' (1996) 335 New England Journal of Medicine 1699 at 1702.
6. C. Seale 'National survey of end-of-life decisions made by UK medical practitioners' (2006) 20 Palliative Medicine 3 at 7.
7. Ibid. at 8.
8. G.M. Sayers, S. Perera 'Withholding life prolonging treatment, and self deception' (2002) 28 Journal of Medical Ethics 347 at 352.
9. R.L Marker, W.J. Smith 'The Art of Verbal Engineering' (1996) 35 Duquesne Law Review 81 at 88.
10. Ibid. at 84.
11. Report of the Select Committee on Medical Ethics (Chair: Lord Walton) (1994) Vol. 1, para 21.
12. See BMA, Euthanasia (London, BMA, 1988) at 3. The BMA chooses not to use the term 'passive euthanasia' in this monograph, preferring the phrases 'a decision not to prolong life' or 'a non-treatment decision'.
13. See Bland, n 1 above, at 383E per Lord Browne-Wilkinson, at 378G per Lord Lowry, and at 388H per Lord Mustill.
14. Ibid. at 369C-E.
15. Ibid. at 369H. This derives from Re F (Mental Patient: Sterilisation) [1989] 2 WLR 1025 where the court decided that sterilisation of an incompetent adult could be lawfully undertaken in her best interests on the basis of necessity.
16. Ibid. at 370H.
17. Ibid. at 371C-D.
18. Ibid. at 371E-F.
19. Ibid. at 372B; see also at 372E, where Lord Goff states: 'it is the futility of the treatment which justifies its termination'.
20. J. Keown, Euthanasia, Ethics and Public Policy; An Argument Against Legalisation (Cambridge: Cambridge University Press, 2002) at 10.
21. M. Miceli, C. Castelfranchi 'Denial and its reasoning' (1998) 71 British Journal of Medical Psychology 139 at 140.
22. Id.
23. Ibid. at 146.
24. R v Adams [1957] Crim LR 365 at 375. In this case, where a doctor administered large quantities of narcotic drugs to a dying patient, Devlin J. decided that the doctor was entitled to do all that was necessary to relieve suffering (the intention) although life could be foreshortened as a result.
25. See Miceli, n 22 above at 148.
26. Id.
27. See Adams, n 24 above at 376.
28. See Keown, n 20 above at 72.
29. D. Davidson 'Actions, Reasons, and Causes' in Essays on Actions and Events (Oxford: Clarendon Press, 1982) at 14.
30. Ibid. at 18.
31. Bland, n 1 above at 379D-E per Lord Lowry.
32. A. Halpin, Reasoning with Law (Oxford/Portland: Hart Publishing 2001) at 64.
33. R. Dworkin, A Matter of Principle (Cambridge: Harvard University Press, 1985) at 120-121.
34. See Halpin, n 32 above at 86.
35. Ibid. at 89.
36. S. Brewer 'Exemplary reasoning: semantics, pragmatics, and the rational force of legal argument by analogy' (1996) 109 Harvard Law Review 925 at 950.
37. Re F (Mental Patient: Sterilisation) [1989] 2 WLR 1025.
38. Ibid. at 1040B. Although Lord Donaldson acknowledged the difficulty posed by the question of what constitutes the best interests he believed it did not affect the validity of the best interests test.
39. Some argue that tube feeding is not treatment (see J. Keown 'Doctors and Patients: Hard Case, Bad Law, "New" Ethics' (1993) 52 Cambridge Law Journal 209 at 210)
40. or is basic care (see J.M. Finnis 'Bland: Crossing the Rubicon?' (1993) 109 Law Quarterly Review 329 at 335).
41. See n 37 above at 1033E.
42. See Bland, n 1 above at 398E per Lord Mustill. Also see A. Fenwick 'Applying best interests to persistent vegetative state - a principled distortion?' (1998) 24 Journal of Medical Ethics 86 at 89, where Fenwick points out that once there are 'no interests', '"best" becomes superfluous - no pool exists from which to draw the "best"'.
43. See Bland, n 1 above at 373D. Even though the Bolam test (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582) has been widely criticised in recent years, the president of the Family Division also relied upon it, in this connection, in NHS Trust A v M (Fam D) [2001] 2 WLR 942 at 953A. Dame Elizabeth Butler Sloss P decided that when a clinical decision to withhold treatment was made on the basis that it was not in the patient's best interests, and was made in accordance with a respectable body of medical opinion, then the state had discharged its obligation under article 2 of the Human Rights Act 1998.
44. See Brewer, n 36 above at 993.
45. See Bland, n 1 above at 386C-D per Lord Browne-Wilkinson.
46. See Brewer, n 36 above at 1017.
47. Ibid. at 1000.
48. See Bland, n 1 above at 400D.
49. See Re H (A Patient) [1998] 2 FLR 36, at 39G, and In the Matter of a Ward of Court [1995] 2 ILRM 410, at 412.
50. BMA Withholding and Withdrawing Life-prolonging Medical Treatment: Guidance for decision making, (London: BMJ Books, 1999)
51. BMA Withholding and Withdrawing Life-prolonging Medical Treatment: Guidance for decision making, (2nd Edn, London: BMJ Books, 2001)
52. BMA Withholding and Withdrawing Life-prolonging Medical Treatment: Guidance for decision making, (3rd Edn, London: Blackwell Publishing, 2007)
53. GMC Withholding and Withdrawing Life-prolonging Treatments: Good Practice in Decision-making, (London, 2002)
54. See n 51 above at para 14.1.
55. R. Gillon suggests that a simple test of whether the doctor intends the death of her patient would be to ask her whether, if the patient 'by remote chance' woke and requested food, she would provide it which she would obviously do. See R. Gillon 'Persistent vegetative state, withdrawal of artificial nutrition and hydration, and the patient's "best interests" (1998) 24, Journal of Medical Ethics 75-76 at 76.
56. R v Woollin [1998] 3 WLR 382 at 393A per Lord Steyn.
57. See n 51 above at para 14.1.
58. See text to n 3-7 above.
59. R. Gillon 'When doctors might kill their patients: Foreseeing is not necessarily the same as intending and the difference is crucial for patients and their doctors' (1999) 318 British Medical Journal 1431.
60. See Sayers, n 8 above at 351-352.
61. M.A. Somerville 'The song of death: the lyrics of euthanasia' (1993) 9 Journal of Contemporary Health Law and Policy 1 at 47.
62. G. Gillett, 'The Pause and the Principles' in R. Gillon (ed), Principles of Health Care Ethics (Chichester: John Wiley & Sons, 1996) at 744.
63. G. Gillett 'Euthanasia, letting die and the pause' (1988) 14 Journal of Medical Ethics 61 at 62.
64. R.W. Cohen 'A Tale of Two Conversations' (2004) 34 Hastings Center Report 1.
65. See n 51 above at para 6.1.
66. J. Keown 'Restoring moral and intellectual shape to the law after Bland' (1997) 113 The Law Quarterly Review 481 at 485.
67. Ibid. at 487.
68. See Keown, n 39 above at 210.
69. Ibid. at 211.
70. J. Keown 'Medical murder by omission? The law and ethics of withholding and withdrawing treatment and tube feeding' (2003) 3 Clinical Medicine 460 at 462.
71. See T. Tännsjö 'Terminal sedation - a possible compromise in the euthanasia debate?' (2000) Nov Bulletin of Medical Ethics 13.
72. See S. Gevers 'Terminal sedation: A legal approach'. (2003) 10 European Journal of Health Law, 359.
73. See n 51 above at para 2.
74. R.M. Veatch, 'Who Should Control the Scope and Nature of Medical Ethics?' in R.B. Baker, A.L. Caplan, L.L. Emanuel, and S.R. Latham (eds), The American Medical Ethics Revolution: How the AMA's Code of Ethics Has Transformed Physicians' Relationships to Patients, Professionals, and Society (Baltimore: The John Hopkins University Press, 1999) at 163.
75. Ibid. at 164.
76. See n 51 above at para 10.
77. Ibid. at 24.5.
78. M.Z. Solomon 'How Physicians Talk about Futility: Making Words Mean Too Many Things' (1993) 21 Journal of Law, Medicine & Ethics 231 at 235.
79. From Re F, n 37 above.
80. See n 51 above at para 23.4.
81. See n 52 above at para 42.
82. See n 51 above at para 24.5.
83. See Re J (a minor) (wardship: medical treatment) [1990] 3 All ER 930 at 934g where Lord Donaldson said that the court or parents could refuse to consent to treatment, but could not insist on a particular treatment. In R v Cambridge Health Authority, Ex parte B [1995] 1 WLR 898 at 906E, Sir Th omas Bingham considered costs when he said that difficult decisions were required when allocating a limited budget so as to provide the greatest advantage to the greatest number of patients. Competent patients, however, have an absolute right to refuse treatment, and this right applies to valid advance directives. See Re AK (Medical Treatment: Consent) [2001] 1 FLR 129, and HE v A Hospital NHS Trust [2003] 2 FLR 408.
84. See n 51 above at para 22.3. The suggestion is that factually correct guidance that has a logical basis accords with reasonable action. The Bolam standard, however, should not be used to ascertain the acceptability of moral actions as argued above.
85. Ibid. at para 29.4.
86. G.T. Laurie, J.K. Mason 'Negative treatment of vulnerable patients: euthanasia by any other name?' (2000) 5 Judicial Review 159 at 171.
87. Ibid. at 172.
88. See n 50 above at para 3.4.
89. See n 51 above at para 29.4.
90. Ibid. at para 7.1.
91. Id.
92. W Healthcare NHS Trust v H and others [2005] 1 WLR 834.
93. Ibid. at 840G per Brooke LJ.
94. Id at 840F per Brooke LJ.
95. R (Burke) v General Medical Council [2005] 2 WLR 431.
96. Ibid. at 452F.
97. Ibid. at 454C.
98. Ibid. at 455C.
99. Paragraphs 32 and 38 suggest that it is the doctor's responsibility to decide, and paragraphs 16 and 42 state there is 'no legal obligation' to provide treatment that is not clinically indicated, or is clinically inappropriate, 505D-F. The guidance fails to recognise the presumption in favour of life-prolonging treatment and the touchstone of intolerability; by suggesting that ANH can be withdrawn because patients are 'in a very serious condition' or because ANH 'may cause suffering' or 'be too burdensome in relation to the possible benefits', 505H.
100. R. Gillon 'Why the GMC is right to appeal over life prolonging treatment' (2004) 329 British Medical Journal 810 at 811. Yet in the UK, which lacks a long tradition of promoting patient autonomy, it may have been the disproportionate strength of the two opposing pulls of professional integrity and resource scarcity that served to unbalance the guidance.
101. R (Burke) v General Medical Council (CA) [2005] 3 WLR 1132 at para 23.
102. Ibid. at para 20.
103. Ibid. at para 23 per Lord Phillips MR.
104. Ibid. at para 31.
105. Ibid. at para 33.
106. Id at para 33 per Lord Phillips MR.
107. Re J (a minor) (wardship: medical treatment) [1990] 3 All ER 930.
108. Ibid., 945b per Taylor LJ. The court referred to the words by Templeman J, Re B (a minor) (wardship: medical treatment) [1990] 3 All ER 927, that the child's life needed to be demonstrably awful, and those of Dunn LJ that the child's life would be intolerable. The difficulty faced by the court was the indeterminacy described by Taylor LJ, and how to reach an answer. See also Re R (adult: medical treatment) 31 BMLR 127, where Sir Stephen Brown P, decided that an adult described as existing in a low awareness state, need not undergo cardio-pulmonary resuscitation. The judge drew on the words used by Lord Taylor, 'so afflicted as to be intolerable', when making his decision.
109. Ibid., 945c-d. This approach, although apparently releasing the court from an evaluative judgement by transferring this judgement to the ward, would not work. The baby had no former preferences or values from which to draw a substituted judgement. The approach would, however, work for someone like Mr Burke who wished to indicate in advance his treatment preferences.
110. The House of Lords has refused leave to appeal.
111. Adults with Incapacity (Scotland) Act 2000, s1(7)
112. See Re F n 37 above.
113. See BMA Guidance, n 51 above at 27.
114. Ibid., at 39.3. An exception to this general rule occurred in Re R (adult: medical treatment) 31 BMLR 127 at 138, where the court ordered one or both parents to consent prior to doctors withholding antibiotics from a severely disabled adult patient.
115. Mental Capacity Act 2005 s1 (5).
116. Ibid., s 4(6)(a)
117. Ibid., s 4(6)(b)
118. Ibid., s 4(6)(c)
119. Ibid., s 4 (7)(c)
120. See Burke, n 97 at [5].
121. See Bland, n 1 above at 368G-H, where Lord Goff described the line as the Rubicon, running between care of the living and euthanasia.
122. W. van der Burg 'The expressive and communicative functions of law, especially with regard to moral issues' (2001) 20 Law and Philosophy 31 at 53.
123. Ibid. at 54.
124. There is always the possibility that relatives can disagree in such circumstances, and patients may have other relationships that are closer than kin. The idea is to actively include significant other/s in the moral decisions that are made on behalf of the incompetent patient.