It is the lack of a unanimous decision and the failure of the majority to establish one idea underpinning all of their judgements, which is the downfall of Ward. Without any distinguishable ratio, the case fails to make any real progression in the law. In isolation of these cases, I feel it is necessary to consider the case of Nigel Cox In 1992 Dr Cox, a qualified Rheumatologist administered a lethal potassium chloride to a long-standing patient in immense torment. Due to the cremation of the body, Dr Cox could only be charged, and later convicted of attempted murder.
In England in 1957 the double effect principle, first formulated by St Augustine, was laid down in English law through the prosecution of John Bodkin Adams16. Here, the defendant as not held to be liable as while a lethal injection of narcotics had indeed been supplied to the patent, the sole intent had been to relieve pain. Thus a lethal injection may legally be administered to a patient if the sole intent of a qualified professional is to alleviate pain as opposed to instigate death.
However, in Cox, the application of potassium chloride could only be seen as the intentional taking away of life as the injection held no curative purpose. It is through this example that distinctions between passive and active Euthanasia should be debated. In variably, had treatment been withheld or active Euthanasia employed, death would have resulted. What then would have been seen to separate the two is the immense suffering of the patient, for "if one simply withholds treatment, it may take the patient longer to die, and so he may suffer more than he would have had a lethal injection been given".
It is not the legal reasoning behind the case of Dr Cox to be called into question but rather the contention that active Euthanasia should be criminalized. In reference to the Ward case, Lynch J asserts that a competent individual "may elect not to enforce his personal rights, including his right to life". In conjunction with this, Peter Singer17 asserts that the fundamental property behind a right is the choice to invoke it. Reinforcing this supposition is the idea of intention.
A substantial case could be made supporting the contention that the double effect principle falls under the category of oblique intention. If this is accepted it seems absurd that these cases remain exempt from prosecution while cases involving active Euthanasia may result convictions. The foreign jurisdictions of Oregon and the Netherlands have both established legal policy in permitting Euthanasia, yet neither exists without its flaws. Under the Vacco V Quill18 it was concluded that the equal protection clause of the 14th Amendment might be extended to afford a right to die.
The value of this right is, however, not so clearly established. In Oregon a lethal combination may be ingested, but they must be both administered orally and by the patient themselves. The state of Oregon have then, in effect, legalised Euthanasia to ensure equality between terminally ill patients only then to deny to those who are for example unable to swallow or unable to move. The Netherlands has taken somewhat more drastic measures.
In 1997 43 people died as a result of Euthanasia in Oregon, compared with the figure of 2000 in the Netherlands. What is even more startling is that 0. 8% of these were non-voluntary cases, and that the physicians themselves are responsible for the submission of a report which illustrates that all guidelines have been adhered to. It is my submission that the law in both England and Ireland is in need of law reform on the substantive issue, in the form of the Executive formally laying a Euthanasia bill, the question to address now is how?
Dr Ruth Annel submits the proposition to have "a comprehensive, radically definitive bill that one can defend wholeheartedly and in good conscience, than a compromise that would solve too small a part of the problem". However, I have already outlined the difficulty that has produced in the Netherlands. Thomkin and McCauley advocate the introduction of a medico-legal tribunal, invested with the authority and jurisdiction to investigate Euthanasia requests, and to vindicate them in some instances.
Alternatively I would simply advocate for the de criminalizing of active voluntary Euthanasia of terminally ill patients, yet in recognition of the right of autonomy, I would contend that in the absence of any advance directives no substituted judgements should be employed. The difficulty involved in introducing such a law would be immense as any pro Euthanasia Bill would seemingly be at ends with Article 2 of the European Convention On Human rights, " No one shall be deprived of life intentionally".
Law reform may therefore be forced to take place on a much larger scale than anticipated. In conclusion I would refer both to the words of Proffessor Kalven and Dr Ruth Annel, by saying that if a good law existed there would be no strong case for changing it and that "It seems certain that it is only a matter of time until laws will be enacted that will permit the administration of painless death when the only alternative is an agonizing or meaningless existence".
Criminal Law Peter Charlton Euthanasia Examined: Ethical, Clinical and Legal perspectives John McKeown Freedom to Die Dr Ruth Annel Killing and Letting Die James Rachels Medical Law: Death Dying and the Law Dermot Feenan Right to die and the Irish Constitution White