For many centuries the Court of Equity sought to remedy legal iniquity, and judges avoid reaching unconscionable decisions because the law ought to be congruous with morality, being legally less good law if it were not.. Natural law is primarily concerned with the idea that morality is the keystone in many legal arguments and law follows as a by-product. Rousseau states that law "is that holy imprescriptable law which speaks to the heart and reason of man"41 where it is up to individual conscience to decide upon justice as "conscience never deceives us".
Yet the idea of unjust is a human concept. Therefore can natural law, in prescribing the nature and thus the concept of law be pedagogical in terms of dictating a "morality" for humans to abide by in communities? If morality is then taken as a human concept in that life is based upon experience rather than innate feeling, it shows that morality is not decided on by a God but by new experience which leads to an emotionally conditioned response. Thus it can be logically concluded that morality is a series of conditioned responses that have been codified over time to form a concrete morality.
Indeed, this is consistent with the concepts propounded by natural lawyers such as' "(it is) the first moral principle" to choose "the possibilities which are compatible with integral human fulfilment"42. No choice can bring overall fulfilment thus the principle of integral human fulfilment is a sociological ideal to guide society to legally "right" choices. Religion appears confused on the issue of the right to die. In the opening paragraph, John Paul II urges respect and importance to be placed on the right to life, not death.
This reinforces the view that euthanasia is recognised as relatively modern conception hence the contentious debating on the issue. This appears to stem from fear of the Nazi regime where a policy of eugenics was practised. Yet passive euthanasia, or refraining from doing anything to keep the patient alive, has been in practice since four centuries before Christ; and in the centuries that followed neither the Christians nor the Jews significantly changed this basic idea. In continuation, Pope Pius XII in 1958 emphasized that we may 'allow the patient who is virtually already dead to pass away in peace' 43.
The changing nature of sociological morality and the notions which attempt to analyse the concept of legal repercussions hinder the description of law in that any attempted description must take into account the fluidity and subjectivity of social communities upon which the concept of law directly relates to. However, a description of the use of the law is in nature, for the positivist, as for the realist, irrespective of content and is legally binding unless set aside by another Court.
On this view the need for a decision, any decision, is more important than that the decision have a particular content, however congenial. This "decision" is typically a concise description of what the law has become. Yet the consequence of any decision has the potential to change what law is, both descriptively and conceptually. The main philosophies when looking at medico-legal issues of life and death are underpinned by Utilitarian and Kantian philosophies. A utilitarian model, favoured by John Stuart Mill and Jeremy Bentham emphasises consequences.
Eudemonistic utilitarians state that a good death is a happy death while Hedonistic utilitarians argue that a good death is a painless death. A Kantian model, on the other hand, emphasises autonomy, rights, and respect. The central tenet to this philosophy is that people should not be and cannot be treated like mere things, stating that "man cannot have the power to dispose of his life"44. The difference is that Kantians emphasize the importance of a patient's right to decide while Utilitarians look only at consequences.
It would appear that once it is accepted that there is such a thing as a morally acceptable act of intentional killing, there really is no distinction between voluntary, non-voluntary and involuntary acts of killing. What needs to be considered here is the sanctity of life. Pursuing the principle of moral absolutes leads to the prohibition of certain things. Contrary to a moral absolute is Vitalism and is a very different sort of moral from the sanctity of life principle. The good of life is violated by an act of intentional killing although the good of life is not violated by not promoting it at all cost in all circumstances.
This is epitomised in part of the Hippocratic Oath whereby it is sworn that "Into whatever patient setting I enter, I will go for the benefit of the sick". The benefit to the sick is important as it re-emphasises the duty of care owed from the medical profession to patient while benefit suggests an emotive duty of care for the patients emotional state. Indeed in Van der Wal's study 71% of patients reported significant emotional suffering in addition to physical suffering46. Value of life and autonomy "People are not people because they are accepted, but rather they are accepted because they are people.
They are people because they are capable of valuing life and it is wrong to kill them because they do value life" so said Harris47. Is it, as Harris suggests, right to keep people alive because they do, as a person, intrinsically value life? People are autonomous: they are motivated to act morally not through inclination, not through coercion but through their own perception of duty in accordance with universal laws. To deny autonomy is to deny the respect that should be his as a self-ruling, independent and rational agent.
The report of the Select Committee on Medical Ethics in 1994 expressed the view that "the prohibition against intentional killing is the cornerstone of law and social relationships which protects each of us impartially, embodying the belief that all of us are equal"48. This misses a vital point that although in theory all are equal, when suffering is involved this fails to be the case. Can one quantify equality between a patient dying painfully of a terminal illness and a person in good health? That we are all alive is a base equality but this belief emasculates an individuals being and their human rights.
The idea of autonomy is central to the debates regarding treatment. Medical paternalism, when treatment is justified despite a patient's objections, on the face of it denies patient autonomy. However, Savulescu recently introduced the "rational non-interventional paternalist" model of the patient-doctor relationship. Patients need to make their own decisions if they are to be fully autonomous. Rational non-interventional paternalism undermines the importance of patient choice and so threatens autonomy.
Doctors should provide an evaluative judgment of the best medical course of action, but ought to restrict themselves to helping patients to make their own choices rather than making such choices for them49 But, it might be said, what if a person is racked with pain, or befuddled because of the measures taken to relieve her pain, and so not able to think clearly and rationally about the alternatives? It has to be agreed that a person in those circumstances who wants to die cannot be assumed to have a competent, enduring and genuinely voluntary desire to die.
However, it is possible for a person to indicate in advance of losing the capacity to give competent, enduring and voluntary consent, how she would wish to be treated should she become terminally ill and be suffering intolerably from pain or from loss of control over her life. 'Living wills' or 'advance declarations' are legally useful instruments for giving voice to people's wishes while they are capable of giving competent, enduring and voluntary consent, including to their wanting help to die. These need to be readily available for the medical profession.
Perhaps, though, what is really at issue in this objection is whether anyone can ever form a competent, enduring and voluntary wish about being better off dead rather than continuing to suffer from an illness before actually suffering the illness. Existing case law is based upon the presumption of bodily integrity. John Locke's assertion that "every Man has a Property in his own Person. This no Body has any Right to but himself"50 which underpins much of the moral dialogue in this area Egoists think that everyone has a right to life but only if it brings benefit while a deontologist believes that a right to life is alienable.
This "right to life" generates certain duties in others. These are namely the duty of non interference and the duty of service (from others). Now that medical science can prolong life indefinitely it is now not the right to life that is important, but the right of a patient to die. The Bishops, sitting in the House of Lords, argued that the extension of autonomy to allow euthanasia would limit the autonomy of doctors, since "patients cannot and should not be able to demand that doctors collaborate in bringing about their deaths"51.
However, The British Humanist Association suggested that sanctity of life was not a principle on which legal structures should be based, since it depended on a religious outlook which not everyone shared. They suggested that "it is particularly hurtful to require someone who does not believe in God or afterlife to suffer intolerable pain or indignity in deference to a God or afterlife he does not accept"52. The Voluntary Euthanasia Society suggests that
"the phrase 'respect for life' may reflect the present day consensus on the matter more accurately than the absolutism of 'sanctity of life'"53. Consent The law of consent is based on the following related principles: desirability of self-determination and the respect for individual integrity. The nature of consent requires three separate elements; Voluntariness, Capacity and Knowledge. These three elements are interdependent rather than independent54.
According to dicta in R v C, "a patient is competent if he or she can: comprehend information given to him or her in a clear and concise way, believe it and retain it long enough to weigh it up and make a decision"55. If treatment is carried out without the patients consent then it is, prima facie illegal. It also gives rise to a case in Tort through battery and/or negligence. Cardozo J stated that "every human being of adult years and a sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without the patient's consent commits an assault"56.
The legal standpoint on liability in medical negligence is the Bolam test. This occurs when a body (no matter how small) of medical opinion supports the action that was taken. However, the Bolam test has been criticised for allowing doctors to determine the legal standard of medical practice. However the court has qualified that it is not bound to accept the medical evidence as conclusive although precedent would suggest that it does.
Nevertheless, autonomy remains the first ethical principle for removing life-sustaining treatment, even though most critically ill patients must exercise their autonomy through surrogates or living wills because they cannot make medical decisions themselves. Ethics here reflects law because informed consent and informed refusal are the primary legal principles that justify this practice. In Vacco57, the Court drew further distinctions between assisted suicide and withholding and withdrawal of life support.