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Assisted suicide and refusing medical treatment: linguistics, morals and legal contortions
... 3 However, respecting a voluntary refusal of life-sustaining treatment is not commonly categorised as 'suicide' (although there are certainly arguments that it should be so regarded). 4 In contrast, legislating to permit an exception to the criminal offence of assisted suicide would require acceptance that suicide can sometimes be permissible and yet, despite decriminalisation, the law sends rather mixed messages on this point. The aim of this article is to seek a better understanding of the so-called 'assisted dying' debate by reframing the issue in terms of the law's regulation of suicide itself. ...
This article seeks to reframe the issue of assisted dying in terms of English law’s broader regulation of suicide. It identifies a long-standing ambiguity about the role of the law in respect of suicide, notwithstanding its decriminalisation in the Suicide Act 1961. Reviewing the passage of that Act and subsequent judicial and parliamentary involvement, the article identifies some pertinent unanswered questions such as whether suicide can ever be viewed as a legitimate exercise of autonomy; whether assistance in performing suicide should ever be lawful; and when exactly there is a legal duty on others to intervene to prevent a suicide. It is argued that until such questions are addressed directly in the broader context of suicide, the appropriate legal approach to assisted dying cannot be settled.
Cambridge Core - Medico-Legal, Bioethics and Health Law - Euthanasia, Ethics and Public Policy - by John Keown
Autonomy is often said to be the dominant ethical principle in modern bioethics, and it is also important in law. Respect for autonomy is said to underpin the law of consent, which is theoretically designed to protect the right of patients to make decisions based on their own values and for their own reasons. The notion that consent underpins beneficent and lawful medical intervention is deeply rooted in the jurisprudence of countries throughout the world. However, Autonomy, Consent and the Law challenges the relationship between consent rules and autonomy, arguing that the very nature of the legal process inhibits its ability to respect autonomy, specifically in cases where patients argue that their ability to act autonomously has been reduced or denied as a result of the withholding of information which they would have wanted to receive. Sheila McLean further argues that the bioethical debate about the true nature of autonomy - while rich and challenging - has had little if any impact on the law. Using the alleged distinction between the individualistic and the relational models of autonomy as a template, the author proposes that, while it might be assumed that the version ostensibly preferred by law - roughly equivalent to the individualistic model - would be transparently and consistently applied, in fact courts have vacillated between the two to achieve policy-based objectives. This is highlighted by examination of four specific areas of the law which most readily lend themselves to consideration of the application of the autonomy principle: namely refusal of life-sustaining treatment and assisted dying, maternal/foetal issues, genetics and transplantation. This book will be of great interest to scholars of medical law and bioethics.
Assisted Dying explores the law relating to euthanasia and assisted suicide, tracing its development from prohibition through to the laissez faire attitude adopted in a number of countries in the 21st Century. This book provides an in-depth critique of the arguments surrounding legislative control of such practices and particularly looks into the regulatory role of the state. In the classical tradition of libertarianism, the state is generally presumed to have a remit to intervene where an individual's actions threaten another, rather than harm the individuals themselves. This arguably leaves a question mark over the state's determined intervention, in the UK and elsewhere, into the private and highly personal choices of individuals to die rather than live. The perceived role of the state in safeguarding the moral values of the community and the need for third party involvement in assisted suicide and euthanasia could be thought to raise these practices to a different level. These considerations may be in direct conflict with the so called right to die espoused by some individuals and groups within the community. However this book will argue that the state's interests are and should be second to the interests that the people themselves have in choosing their own death. Assisted Dying is winner of the The Minty Prize of the Society of Authors, and winner of the Royal Society of Medicine Book Awards, 2008.
Euthanasia, Ethics and the Law argues that the law governing the ending of life in England and Wales is unclear, confused and often contradictory. The book shows that the rules are in competition because the ethical principles underlying the rules are also diverse and conflicting.
In mounting his case Richard Huxtable considers some familiar and topical debates, including assisted suicide and voluntary euthanasia, examining such situations as the Dianne Pretty litigation and Lord Joffe's Assisted Dying for the Terminally Ill Bill. The book also enters some important, but less well-charted areas, looking at the advent of 'death tourism' and the real status of involuntary and passive euthanasia in English law, in addition to clarifying the confusion that surrounds the use of powerful painkillers like morphine. Dealing with both legal and ethical issues, the text concludes that the time has come to more openly adopt a compromise position - one that more honestly recognises and accommodates the competing values, whilst also restoring a measure of coherence to the law.
The question of whether a person should have a right to physician-assisted suicide (PAS) has provoked vigorous debates in
many Western countries in the courts, in legislatures, in referenda, and in academic literature. As with human rights discourses
generally, discourses over PAS cannot be complete or coherent if non-Western countries remain on the periphery. With its common
law legal system, particular outlook on human rights, legislation on advance medical directive, and prohibition of attempted
suicide and assisted suicide, Singapore presents a valuable case study on whether a right to PAS may be derived from the Singapore
Constitution and on the possibilities, merits, and problems that recognition of a right to PAS may present. This article adopts
an in-principle inquiry, with reference to case law in England and Wales, Canada, and the USA, as to whether a person has,
or should have, a right to PAS in Singapore in accordance with the constitutional guarantee of the liberty of the person.
In a previous paper in this journal I responded to Professor John Keown’s criticisms of the British Medical Association guidance on withholding and withdrawing life-prolonging treatment, arguing that the sanctity of life principle he endorses is indefensible as a juridical and moral guide. Professor Keown replied recently, also in this journal, alleging that I wrongly caricatured the sanctity of life position he supports, which continues to illuminate the proper decision-making path in relation to the withdrawal or withholding of life-sustaining medical treatment. In this present paper it is submitted that Keown’s riposte is misconceived and disguises the true nature of the sanctity of life stance, which both rests upon unconvincing premisses and tends towards unacceptable repercussions, thus leading to its inevitable and rightful rejection.
Recently in this journal John Keown attacked the BMA Guidance published on ‘Withholding and Withdrawing Life-prolonging Medical Treatment’, arguing that it was, fundamentally at odds with the sanctity of life doctrine as properly understood, condemning the intentional termination of individuals’ lives. In riposte it is asserted that even this modified version of the doctrine cannot support a defensible moral or legal standard for decision-making here, being founded upon an excessive emphasis on the mental state of the clinician and an inappropriately narrow focus on the effects of the proposed treatment on the ‘health’ of the patient, as opposed to being primarily driven by the (best) interests of the patient. The attempt to divorce treatment decisions from broader evaluations of the net benefit or other otherwise able to be attained by the patient from such treatment, including the taking into account of the individual's handicapped state, accordingly fails. Acceptance of such reality is, at the least, the first step toward a common language for further dialogue even between those with polar opposite opinions in this sphere.
This book criticises the way in which the courts rely so exclusively on the criminal concepts of intention and causation in medical end-of-life decision-making. Although they provide the means by which culpability, blameworthiness and liability are ascribed, ascertaining the mens rea and actus reus elements is problematic in the medical scenario where a doctor’s role and responsibilities (when a patient dies following the withdrawal of life-sustaining treatment or the administration of pain-killing medication) distinguishes him from a ‘cold-blooded’ murderer. In looking at a wide range of disciplines, this book aims to raise awareness as to the inadequate and inappropriate legal framework within which judges have to operate. It sets out the way in which they have devised certain ‘defences’ for doctors, and suggests a solution based on formalising these ‘defences’ and creating a medical mercy-killing type offence which would specifically take into account the relevance of motive, context and consent. This would enable a more open and honest approach which would, in turn, provide the certainty, consistency and equality required by the law.
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