Legislation other than the criminal offences

"When life becomes so burdensome, death is for man a sought after refuge". 1 The issue of Euthanasia is by no means a modern one, with it's roots placed firmly in the evolution and growth of medicine since the beginning of recorded history, yet to date, no satisfactory resolution has been reached by any jurisdiction in the world. Derived from the Greek "Eu Thanatos" the term literally means good death, however, for the purpose of analysis it becomes necessary to define the term further into both passive and active Euthanasia.

Passive Euthanasia concerns the intentional withholding of treatment, which will then result in the patient's death. Here, death is deemed to be a result of the patient's medical condition. Active Euthanasia is however, a decidedly different matter. In this instance a positive human act instigating or accelerating death is required and they further be subdivided into three distinct categories, namely "in accordance with the wishes of the patient (voluntary Euthanasia), without consent (non-voluntary Euthanasia) or where is patient is incapable of consenting (involuntary Euthanasia).

"To compound this, there is finally the issue of the assisted suicide. In this instance suicide is aided by an individual for example a doctor in the prescription of medication, the purpose of which is to cause the death of the patient. Within both the United Kingdom and Irish jurisdiction the latter two are both deemed to be criminal offences. Active Euthanasia is considered to be murder, when under the amended suicide act of 1993 any individual who "aids, abets, counsels of procures the suicide of another, or attempt at suicide by another, may be imprisoned for up to 14 years.

" 3 In the absence of any form of legislation other than the criminal offences of both murder and assisted suicide it is necessary to consult first the two landmark decisions in the both the UK and Ireland, Airedale NHS Trust v Bland 4and Re. Award of Court 5respectively. As a result of Hillsborough 1989, 17-year-old Anthony Bland suffered both crushed and punctured lungs. The hindrance in blood flow to the brain resulted in anoxic brain damage, leaving the patient in a condition known as a persistent vegetative state (PVS).

This involved the loss of all higher brain functions, he now existed solely due to the artificial feeding tubes which he unable to consent to. These methods were employed due to the absence of any advanced directives and in the families and carers interest in preserving Anthony Bland's life. However, there was no hope of recovery and in 1992 an application was made that the district hospital of Sheffield may "lawfully not furnish medical treatment except for such purpose of enabling Anthony Bland to end his life and die peacefully with the greatest of dignity and least of pain and suffering".

Over the course of one year, the case was appealed from the family division of the high court, the court of appeal in which the master of the rolls and two judges affirmed the decision, and finally in the House of Lords. Their decision to end the life of Anthony Bland was unanimous. The application of the term to end the life of, or bring about the death of Anthony Bland, is in this case not without grounding. Indeed it is the fundamental distinction between Bland and the Irish comparison Re. A Ward of Court.

Counsel for the official solicitor representing Anthony Bland, argued that the withdrawal of treatment was equivocal to intentionally causing death. In comparison with Ward this issue was addressed substantially, with three law lords, accepting the connotation. According to Lord Brown Wilkinson " What is proposed in the present case to adopt a course of action with the intention of bringing about Anthony Bland's death. As to the element of intention or Mens Rea, in my judgment there can be no doubt that it is in the present case: the whole purpose of stopping artificial feeding is to bring about the death of Anthony Bland".

However, it was concluded that this would not constitute murder as: the cessation of feeding amounted to an omission, no duty existed as the feeding constituted medical treatment and this treatment was deemed not to be in the best interest of Anthony Bland as "A responsible body of medical opinion did not regard existence in Anthony Bland condition to be a benefit. " Thus while murder was committed by the withdrawal of feeding tubes no criminal liability was established on the day of Anthony Bland's death, March 3rd 1993.

It was then the questions raised by both the bland and earlier case of Cox which demanded a House of Lords select committee be created to examine the issue. They conclude unanimously by saying that no change be made to the law, believing that "the answer is not to change the law, but rather to improve our standard of care. " In reality, this is simply not the case. Euthanasia is defined in the report as "a deliberate intervention undertaken with the express intention of ending a life to relive intractable pain". 6 Thus, Euthanasia is defined as involving a positive human act and this decisively changes the value of the report.

Within the judgements of Bland "some of the law lords explicitly recognised that this ruling relies on a morally indefensible distinction which renders the English law of homicide incoherent. For that, the law after bland, treats as criminal a death causing act, while treating as lawful a death causing omission deciding upon with the very same intention of causing death". 7 The upshot of which is that, English law has placed itself in an overwhelming flood of confusion, made even more bizarre by Lord Mustill's conscience voicing of the mind.

While this contradictory doctrine remains "then the law saying both 'yes' and 'no' to Euthanasia. It did not say no to Euthanasia before Bland, and the Walton committees apparent 'no' contributes nothing to judicial contrived 'yes'". 8 Furthermore, the committee continues to upset the issue of passive Euthanasia. In the same tradition of the American common law courts, the committee producing a strong and substantial endorsement of the right of a competent patient to withdraw or abscond from medical treatment.

While this declaration seems to employ little effect of common understandings of the matter the issues of suicidal intent is not addressed – that "a refusal motivated by suicidal intent is unlawful even though suicide itself is not a criminal offence". 9 Thus, discounting this submission that a competent individual cannot wish to commit suicide the committee have further embodied themselves within these contradictions, as "If suicidal intent was not unlawful, it is difficult to see how it could be maintained that assistance, and agreements to assist, in suicide are serious criminal offences".

It may then be surmised that at present English law concerning Euthanasia is not only insufficient, but is largely incoherent and contradictory. The established Irish authority, and indeed the only Irish authority, is Re. A Ward of Court. This however, is made difficult to recognise by the statements of Hamilton CJ and O'Flaherty J in the Supreme Court by the ruling that this is not a case concerning Euthanasia. In 1972, during the course of a minor gynaecological operation, the Ward suffered three cardiac arrests and became a victim of anoxic brain damage the result of which left her in a near PVS.

At this point two important factors should be established: the Wards condition was static, while no curative treatment existed; her life was and prospectively would be under no danger. Secondly, the Ward did obtain and indeed demonstrate cognitive ability. She could not speak but react to noise with her eyes. She held a propensity for recognising long established nursing staff and had on many occasions succeeded in removing the gastronomy tube, her sole life preserver, arguably due to immense discomfort.

In the High Court, Lynch J, was confronted with two constitutional provisions, the rights of the family "as a moral institution, possessing inalienable and imprescriptable rights, antecedent and superior to all positive law. "11 And the unenumerated right to life and the states interest in preserving it under article 40. In his judgement Lynch J adopts the best interests approach and asserts the Parens Patraie jurisdiction, exercised by the Lord Chancellor over patients non-compos mentis, in granting the release sought by the applicant.

In the Supreme court appeal his judgement was upheld by a 4-1 majority, for while the state held an interest in preserving life it was not absolute, that "it might never the less be subject to the citizens right of autonomy, self-determination, privacy or dignity, when exercised by a competent decision on their behalf". In his judgement both Hamilton CJ and O'Flaherty J also explicitly argue that a complete and self-evident ban exists upon Euthanasia under Irish law, "no person has the right to terminate or have terminated his or her own life or to accelerate or have accelerated his or her own death".

However, neither continues to compound the matter with an explanation. Similarly, in relation to the relevance of article 41 both Hamilton CJ and Denham J conclude that as a Ward of court the opinions of the family will carry considerable weight but are not binding. However, no thought is given to procedures involved where the patient is not a ward of court. As such it is only medical guidelines and extra-judicial writings of Costello J 12, which can afford some guidance.

According to Blayney J, Lynch J fully addressed the question of "whether or not it was of any benefit to the ward to prolong her life given the burdens on the ward involved doing so and the fact that no improvement on wards condition can be expected". Yet he makes no effort to identify any limits of the courts authority to consent to treatment, no indication of the level of cognation necessary for this course of action to be employed. Moreover, his formulation of the best interests test provides "no basis for distinguishing between passive and active Euthanasia or even, perhaps more ominously, between voluntary and non-voluntary Euthanasia".

The employment of a best interests test may also be called into question, as while this was the test endorsed by the majority, the autonomy of the patient was also stressed, this right was still active under the principle of equality. These two issues may then be seen to be brought into confliction as such a test cannot be "compatible with a legal regime which purports to give effect the autonomy of the individual as such a test clearly carries with it the power to override the express wishes of the individual in what might be seen to be his best interests".