Biomedical subjects
Publications and source records attributed to Richard H S Tur.
Ths article reviews the issues raised by the case of Diane Pretty and argues that contrary to the views of the English Courts and the European Court of Human Rights, section 2 of the Suicide Act 1961 is incompatible with the Convention. Failing legislative reform, the DPP should formulate and publicise criteria for the exercise of its consent to prosecution in cases of assisted suicide.
Those who campaign for law reform to permit "euthanasia" may seek different things and at least some of what they seek may already be permissible under the criminal law of England and Wales. In this paper I examine one means whereby the criminal law delivers outcomes acceptable to the euthanasia lobby, that is the curious notion of "causation" deployed by the law, which adds a value override to the more usual notion of factual causation such that, for example, if medical treatment falls within the acceptable range as normal and proper, the pre-existing injury or illness is treated as exclusively the cause of death and the doctor escapes criminal liability, even where the medical treatment will shorten life to the certain knowledge, possibly even the wish, of the doctor. Thus the law may already be delivering a range of outcomes--euthanasia in a weak sense--acceptable to the euthanasia lobby. If so, it achieves this by stealth. That is inappropriate to the doctor-patient relationship, which is one of trust. So there is a strong case for greater transparency. Moreover, there are limits to the acceptable outcomes which an unreformed criminal law can deliver and in a range of cases the criminal law condemns the doctor to impotence and the patient to a prolonged, miserable and undignified death. So there is also a case for going beyond the current law and legalising euthanasia in a strong sense.
The paper takes as its point of departure a relatively recent case which attracted publicity in Britain, concerning a doctor charged with (but acquitted of) the murder of his terminally ill patient, and critically examines the criminal law of England and Wales relating to homicide in the context of medical practice. While similar issues obviously arise in many other countries, no comparative study is attempted in the paper. However, the arguments which have been presented are of more than local interest. From an analysis of this case and others, it appears that there is in common law something which can be called the doctor s defense. It holds that a doctor may, when caring for a patient who is suffering great pain, lawfully administer pain-killing drugs, despite the fact that, as the doctor well knows, one certain or highly probable consequence will be to shorten the patient s life. Current justifications for this defense are either incoherent or too weak. Some require that different conceptions of intention be deployed, depending on whether the agent is a doctor or not. Others rely on the philosophically controversial doctrine of double effect. Still others invoke an implausible notion of minimal causation. All these justifications apply readily enough to morally and factually easy cases, but fail in hard cases where the need for some justification is most pressing. These justifications seem incapable of providing adequate guidance to prosecutors or trial judges. Absent principled and transparent justification, the English criminal justice system exhibits different outcomes on what appear to be broadly similar facts. It is disturbing that the law is uncertain and incapable of giving adequate guidance. A doctor, compelled by conscience to intervene to end a person s life, should certainly be ready and willing to face rigorous legal scrutiny, but the law applied should not be arbitrary and random, nor should the outcome turn solely or chiefly on prosecutorial discretion or the predilections of the trial judge. The hope is to find a better rationale for the doctor s defense through an analysis of professional ethics and the concept of a recourse role.