The Human Rights Act death

Etymologically euthanasia comes from the Greek "eu" and "thanatos" which together mean "a good death"16. The Pro-Life Alliance however defines euthanasia as: "Any action or omission intended to end the life of a patient on the grounds that his or her life is not worth living. "17 Acts and omissions are of great importance in UK law. An act is a positive action administered by an agent while an omission is seen as an indifferent action. Euthanasia is understood practically when a peaceful death is brought about deliberately and intentionally, usually by a medic.

With euthanasia, a healthcare professional, by a calculated act or omission initiates a causal sequence that results in the patient's death. With assisted suicide, the healthcare professional may either help or may fail to prevent a patient completing a course of action which results in his or her own death. In the former case, the healthcare professional rather than the patient is ultimately in control even when it occurs with patient consent. In the latter, although the boundaries may sometimes appear blurred, the patient remains the agent (or the act ceases to be suicide)18.

The issue of intention is of principle importance as the medic has the requisite mens rea for murder if active or involuntary euthanasia occurs. In the Report on Medical Ethics 1994, the Bishops said "Because human life is a gift from God to be preserved and cherished … both Churches are resolutely opposed to the legalisation of euthanasia even though it may be put forward as a means of relieving suffering"19. Thus it is of benefit to examine the different "types" of euthanasia and the consequences of each.

Merritt, A Circuit Judge in America suggested that there are several types of euthanasia, including (1) the refusal of medical treatment that would prolong life by a competent, terminally ill patient, (2) so-called "double effect" euthanasia, where a terminally ill patient in severe pain is given pain medication which relieves pain but also cuts short the patient's life; and (3) "physician assisted suicide" which kills the patient through means other than the withdrawal of life support or "double effect" euthanasia".

The District Court made the point as follows: "Michigan law does not prohibit doctors from prescribing medication which has the "double effect" of relieving pain while also hastening death or substantially increasing the risk of death. There is a widespread belief that passive euthanasia, where life-sustaining or life-prolonging measures are withdrawn or withheld, is morally acceptable because steps are simply not taken which could preserve or prolong life (and so a patient is allowed to die), whereas active euthanasia is not, because it requires an act of killing.

The distinction, despite its widespread popularity, is very unclear. Whether behaviour is described in terms of acts or omissions (which underpins the alleged distinction between active and passive euthanasia), is generally a matter of pragmatics. The most controversial "type" of euthanasia is active euthanasia which, in English law, occurs when treatment is administered to intentionally take the life of a person. Problems occur in distinguishing euthanasia from murder.

The most prominent case concerning active euthanasia was the so-called "Dr Arthur's case"20 where a drug "to relieve suffering" and also designed to stop the child seeking sustenance was orally administered to a seriously ill downs syndrome baby. However, Dr Arthur was acquitted of a murder charge as the jury found him not to have had the necessary intention of killing the child; rather bring about his peaceful death. Indeed, doctors are generally acquitted or given a suspended sentence in these cases.

Again, this can be seen in R v Cox21 where Potassium Chloride, a drug used in lethal injections and with no pain-relieving merits was administered by Dr Cox on the request of the patient. This leads on to voluntary euthanasia where the patient is competent and has consented to Euthanasia. During the 1970's and 1980's court cases in The Netherlands culminated in agreement being reached between the legal and medical authorities to ensure that no physician would be prosecuted for assisting a patient to die as long as certain guidelines were strictly adhered to.

These guidelines were established to permit physicians to practise voluntary euthanasia in instances where a competent patient had made a voluntary and informed decision to die. During the 1990's Australia's Northern Territory gained the first legislative approval to enable physicians to practise voluntary euthanasia. Subsequent to the Act's proclamation in 1996 it faced a series of legal challenges from opponents of voluntary euthanasia.

In 1997 the challenges culminated in the Australian National Parliament overturning the legislation when it prohibited Australian Territories from enacting legislation to permit euthanasia. In Oregon, in the United States, "Death with Dignity" legislation was introduced in 1997 to permit physician-assisted suicide albeit subject to strict rules. Later in 1997 the Supreme Court of the United States ruled that there is no constitutional right to physician-assisted suicide. However, the Court did not preclude individual States from legislating in favour of physician-assisted suicide.

The Oregon legislation has, in consequence, remained operative and has been successfully utilised by a number of people. In November 2000 The Netherlands passed legislation to legalise the practice of voluntary euthanasia. The legislation passed through all the parliamentary stages early in 2001 and so became law. The Belgian parliament passed similar legislation in May 2002. In the UK, voluntary euthanasia is prohibited. Pretty v UK is the leading case precedent on voluntary euthanasia.

Pretty claimed that Article 2, concerned with her right to life, of the Human Rights Act and Article 3 which protected her from inhuman and degrading treatment were being violated as her motor neurone disease continued. It was argued that her absolute right not to be so subjected, together with her right to personal autonomy, outweighed any duty of the State to protect her life. The BMA, however, considered that establishing it as a "right" for those who demand it will inevitably raise questions about why such a "right" should be denied to others such as the senile or mentally ill, for whom it may constitute a harm22.