Life assurance and consensual death: Law making for the rationally suicidal

Cambridge Law Journal

Volumn 65, Issue 3, 2006, Pages 521-548

  Davey, James ^a   Coggon, John ^a  

^a CARDIFF UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 78649639967     PISSN: 00081973     EISSN: 14692139     Source Type: Journal    
DOI: 10.1017/S0008197306007215     Document Type: Article

References (99)

1. E.g. the debate on end-of-life care, Hansard HC Deb vol. 436 cols. 365–385WH (19 July 2005).
2. See Christian Medical Fellowship in Assisted Dying for the Terminally 111 Bill: Volume II Evidence (HL Paper 86-II, 2005), at p. 675: “Section [10]. will also place huge pressure on patients to request early death in order that their families might benefit from insurance money Cf.
3. H. Biggs, “A Pretty Fine Line: Life Death, Autonomy and Letting it B” (2003) 11 Feminist Legal Studies 291, 298: “[H]ow can we be certain that a person is acting autonomously when she is clearly motivated by her perception of the needs of others?”.
4. See Hansard HL Deb. vol. 681 col. 1184 (12 May 2006).
5. In Re T (Adult: Refusal of Treatment) [1993] Fam. 95
6. Ms. B v. An NHS Hospital Trust [2002] 2 All E.R. 449.
7. Assisted Dying for the Terminally Ill Bill, cl. 7(1).
8. See M. Woolf, “Swiss Suicide Clinic Sees Number of British Clients Rise by 700 per cent”. The Independent, 4 April 2005
9. M. Horsnell, “Woman Dies in Assisted Suicide after being Taken to Switzerland” The Times, 4 December 2004
10. M. Frith, “Kennedy Quits Euthanasia Society in Row Over Swiss Suicide Clinic” The Independent, 20 July 2004.
11. As evidence of judicial reluctance to interfere, at least before the fact, see In re Z (Local Authority: Duty) [2005] 1 W.L.R. 959.
12. J. Keown, “Restoring Moral and Intellectual Shape to the Law after Bland” (1997) 113 L.Q.R. 482
13. H. Biggs, “A Pretty Fine Line: Life Death, Autonomy and Letting it B” (2003)
14. Feminist Legal Studies 291.
15. H. Biggs, “The Assisted Dying for the Terminally Ill Bill 2004: Will English Law Soon Allow Patients the Choice to Die?” (2005) 12 European Journal of Health Law 43, 51.
16. J. Laurance and R. Verkaik, “Police Question Euthanasia Widow Over Husband's Death” The Independent, 22 January 2003
17. A. Norfolk, “Wife on Trial for Letting Husband Commit Suicide” The Times, 21 April 2005
18. D. Blamires, “Judge Frees ‘Caring’ Daughter who Aided her Mother's Suicide” The Independent, 30 June 1998
19. L. Peek, “Mercy for Husband who Killed Wife in Pain” The Times, 7 September 2002
20. J. Bale, “Former PC who Killed Dying Wife Spared Jail” The Times, 15 January 2005.
21. J. Hardwig, “Is there a Duty to Die?” (1997) 27 Hastings Center Report 34.
22. Suicide Act 1961, s. 1.
23. Suicide Act 1961, s. 2(1).
24. A review of the case law suggests that the courts will not respect a child's suicidal refusal that is the result of metaphysical, superstitious, religious, or other abstract value-based reasoning: Re E [1993] 1 F.L.R. 386
25. Re S [1994] 2 F.L.R. 1065
26. Re L [1998] 2 F.L.R. 810
27. Re M [1999] 2 F.C.R. 577.
28. In Re T (Adult: Refusal of Treatment) [1993] Fam. 95, “An adult patient who. suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than another of the treatments being offered.This right of choice is not limited to decisions which others might regard as sensible. It exists not with standing that the reasons for making the choice are rational, irrational, unknown or even non-existent.” (per Lord Donaldson of Lymington M.R. at p. 102).
29. Ms. B v. An NHS Hospital Trust [2002] 2 All E.R. 449.
30. Pretty v. United Kingdom (2002) 35 E.H.R.R. 1.
31. NHS Trust v. Bland [1993] A.C. 789
32. In re J. (A Minor) (Wardship: Medical Treatment) [1991] Fam. 33
33. In re B (A Minor) (Wardship: Medical Treatment) [1981] 1 W.L.R. 1421
34. In re C (A Minor) (Wardship: Medical Treatment) [1990] Fam. 26
35. Re R (Adult: Medical Treatment) [1996] 2 F.L.R. 99.
36. See also In re Z (Local Authority: Duty) [2005] 1 W.L.R. 959.
37. The amount of premium payable over time will vary, as may the eventual benefit.
38. British and Foreign Marine Insurance Co. Ltd. v. Gaunt [1921] 2 A.C. 41, 57.
39. See A. Brock and C. Griffiths, “Trends in Suicide by Method in England and Wales, 1979 to 2001” (2003) 20 Health Statistics Quarterly 7.
40. It is estimated that 50% of households have life insurance. See Office for National Statistics, UK 2005, (London 2004), at p. 466.
41. See Hansard HL Deb. vol. 674 col. 19 (10 October 2005). Cp. the data for Orgeon's Death with Dignity Act with 171 reported cases in the first six years.
42. See F. Pakes, “Under Siege: The Global Fate of Euthanasia and Assisted-Suicide Legislation” (2005) 13 European Journal of Crime, Criminal Law and Criminal Justice 119, 122. On the great potential for unreliability of extrapolated figures in this debate, see below Part III.
43. [1938] A.C. 586.
44. “Life Insurance and Suicide” (1937) 1 M.L.R. 154, 154.
45. [1938] A.C. 586, 595.
46. The one possible exception is in the inconsistent application of the forfeiture rule in cases of unlawful killing by the drivers of motor vehicles. See Dunbar v. Plant [1998] ch. 412, 435 per Phillips L.J: “Thus far, apart from in the motor cases, there has been no instance of the court failing to apply the forfeiture rule to a case of unlawful killing”.
47. British and Foreign Marine Insurance Co. Ltd. v. Gaunt [1921] 2 A.C. 41, 58 per Lord Sumner: “When he avers loss by some risk coming within ‘all risks', as used in this policy, he need only give evidence reasonably showing that the loss was due to a casualty, not to a certainty or to inherent vice or to wear and tear. That is easily done”.
48. For a consideration of the notion of fortuity generally, see Notes “The Luck of the Law: Allusions to Fortuity in Legal Discourse” (1988–1989) 102 Harv. L. Rev. 1862.
49. See K. Abraham, “Peril and Fortuity in Property and Liability Insurance” (2000–2001) 36 Tort and Ins. L.J. 777, 792.
50. For a contrary view, criticising the decline in the objective standard of fortuity, see S. Cozen and R. Bennett, “Fortuity: The Unnamed Exclusion” (1985) 20 Forum 222.
51. Ikergi Compania Naviera SA v. Palmer, The Wondrous [1991] 1 Lloyd's Rep. 400.
52. Ikergi Compania Naviera SA v. Palmer, The Wondrous [1991] 1 Lloyd's Rep. 400, 416.
53. K. Abraham, “Peril and Fortuity in Property and Liability Insurance” (2000–2001) 36 Tort and Ins. L.J. 777, 802.
54. Forfeiture Act 1982, s. 5. See Davitt v. Titcumb [1990] ch. 110.
55. See R. v. Howe [1987] 1 A.C. 417, 433, per Lord Hailsham: “Murder, as every practitioner of the law knows, though often described as [a crime] of the utmost heinousness, is not in fact necessarily so, but consists in a whole bundle of offences of vastly differing degrees of culpability, ranging from brutal, cynical and repeated offences like the so called Moors murders to the almost venial, if objectively immoral, ‘mercy killing’ of a beloved partner”.
56. D. Blamires, “Judge Frees ‘Caring’ Daughter who Aided her Mother's Suicide” The Independent, 30 June 1998.
57. L. Peek, “Mercy for Husband who Killed Wife in Pain” The Times, 7 September 2002.
58. See Gray v. Barr [1971] 2 Q.B. 554, 581 per Salmon L.J: “Manslaughter is a crime which varies infinitely in its seriousness. It may come very near to murder or amount to little more than inadvertence, although in the latter class of case the jury only rarely convicts” (emphasis added).
59. See further the careful summing up of Ognall J. to the jury in the case of R. v. Cox (1992) 12 B.M.L.R. 38, although note that in this case the charge was one of attempted murder.
60. A. Norrie, “After Woollin” [1999] Criminal Law Review 532.
61. Lord Hailsham in R. v. Howe [1987] 1 A.C. 417, at p. 433
62. Lord Simon in DPP for Northern Ireland v. Lynch [1975] A.C. 653, at p. 687
63. Y. Kamisar, “Physician-Assisted Suicide: The Problems Presented by the Compelling, Heartwrenching Case” (1998) 88 J. Crim. Law Criminol. 1121
64. B. Steinbock, “The Case for Physician-Assisted Suicide: Not (Yet) Proven” (2005) 31 Journal of Medical Ethics 235.
65. [1971] 2 Q.B. 554.
66. Gray v. Barr [1971] 2 Q.B. 554, 567–568 per Lord Denning M.R.
67. [1998] ch. 412.
68. ch. p. 419.
69. This does not, of course, mean that the patient will wish to expose such family members to the risk of prosecution: see H. Smith and R. Smith, “Doctors Cannot Simultaneously be Patient Centred and Reject Assisted Suicide (Letter)” (2005) 331 B.M.J. 842–843, “If I feel dementia approaching, I could of course kill myself. There's nothing illegal about that, but I would be reluctant to involve my family and friends—for fear that they might be implicated in doing something illegal”.
70. [1998] ch. 412, 425
71. citing Troja v. Troja (1994) 33 N.S.W.L.R. 269, 299 per Meagher JA.
72. N.S.W.L.R. at p. 438.
73. [2001] ch. 568.
74. Assisted Dying for the Terminally Ill Bill: Volume II Evidence (HL Paper 86-II, 2005), at p. 50.
75. For an extreme example of this, see Fuji Finance Inc. v. Aetna Life Insurance Co. Ltd. [1995] ch. 122.
76. See F. Parker, H. Rubin and W. Winslade, “Life Insurance, Living Benefits and Physician- assisted Death” (2004) 22 Behav. Sci. Law 615, 619.
77. The Disability Rights Commission noted in its evidence an example given by Baroness Finlay relating to a patient whose relatives had pressed for increased doses of diamorphine with the presumed motivation of ensuring an accelerated death so as to trigger a term policy before it expired. See Assisted Dying for the Terminally Ill Bill: Volume II Evidence (HL Paper 86-II, 2005), at p. 224.
78. Namely, suicide, mercy killing, and physician-assisted death.
79. E.g. J. Harris, The Value of Life (London 1985).
80. See the implied support for this in the Assisted Dying for the Terminally Ill Bill (HL Paper 86-I, 2005), at [68].
81. J. Angelo Corlett, “Is there a Moral Duty to Die?” (2001) 9 Health Care Analysis 41–63.
82. G. Seay, “Can There Be a ‘Duty to Die’ without a Normative Theory?” (2002) 11 Cambridge Quarterly of Healthcare Ethics 266.
83. On money as a symbol, see J. Raz, The Morality of Freedom (Oxford 1986), ch. 13, especially at p. 350: “Money exchanges are the mark of liquidity, of easy, fast exchangeability. Because of this they are natural candidates for certain symbolic messages. But only those familiar with the conventions can understand their meaning”.
84. H. Biggs, “The Assisted Dying for the Terminally Ill Bill 2004: Will English Law Soon Allow Patients the Choice to Die?” (2005) 12 European Journal of Health Law 43, 51.
85. I.G. Finlay, V.J. Wheatley and C. Izdebski, “The House of Lords Select Committee on the Assisted Dying for the Terminally Ill Bill: Implications for Specialist Palliative Care” (2005)
86. Palliative Medicine 444, 446.
87. Consequentialism, put simply, is the doctrine that measures the moral quality of an action by its effects, rather than, for example, the mental state or beliefs or desires of the actor. For a useful collection of essays on consequentialism, see S. Darwall (ed.), Consequentialism (Oxford 2003).
88. The doctrine of double effect allows a good means to be employed in pursuit of a good end, even if it will also result in a bad end, providing that the bad end is unintended, and that the overall harm is not disproportionate to the good end sought. Although some question the validity of the doctrine following the House of Lords decision in R. v. Woollin [1999] 1 A.C. 82, it is still treated as good law and forms a part of good medical practice.
89. For analysis of the doctrine see D. Price, “Euthanasia, Pain Relief and Double Effect” (1997) 17 Legal Studies 323.
90. J. Keown, “Restoring Moral and Intellectual Shape to the Law after Bland” (1997) 113 L.Q.R. 482.
91. J. Keown and L. Gormally, “Human Dignity, Autonomy and Mentally Incapacitated Patients: A Critique of Who Decides?” (1999), http://webjcli.ncl.ac.uk/1999/issue4/ keown4.html.
92. Airedale NHS Trust v. Bland [1993] A.C. 789, 864 per Lord Goff
93. see also Ms. B v. an NHS Hospital Trust [2002] 2 All E.R. 449.
94. R. Jenkins, “Woman ‘Vindicated’ for Letting Husband Take his own Life”, The Times, 28 April 2005
95. I. Herbert, “Wife Acquitted of Failing to Prevent Husband's Suicide” The Independent, 28 April 2005.
96. R. v. Cox [1993] 1 Med. L. Rev. 232.
97. Pretty v. United Kingdom (2002) 35 E.H.R.R. 1.
98. Rather like Hardwig, we use the term “duty” without providing a theoretical framework. It should be taken to reflect a person's feeling that he is bound, on his chosen means of assessment, not to allow a course of conduct in which his family members would have to take part; that all things considered, things are better if he lives, even if he would be better off dead. For an argument suggesting that the law creates in effect a duty to live, see W. Grey, “Right to Die or Duty to Live? The Problem of Euthanasia” (1999) 16 Journal of Applied Philosophy 19.
99. See F. Parker, H. Rubin and W. Winslade, “Life Insurance, Living Benefits and Physician- assisted Death” (2004) 22 Behav. Sci. Law 615.