Framework for end-of-life decisions

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Consider how well the European convention of Human Rights provides an adequate framework for the making of end-of-life decisions. ANSWER Introduction The European Convention on Human Rights[1] has been accorded force and effect in the United Kingdom legal system by means of the Human Rights Act 1998[2]. The Act permits claims for a breach of a Convention right to be raised in UK courts, without necessitating a direct application to the European Court of Human Rights itself. The 1998 Act has exercised far reaching and profound consequences throughout the UK legal order as new rights across a multiplicity of different contexts have been conceded and enforced by the courts.. This paper examines the matrix of law established by the ECHR concerning the making of end-of-life decisions and draws conclusions as to its adequacy. End of Life Decisions at Law The Hippocratic oath[3] taken by every Doctor provides as follows: ‘I will prescribe regimen for the good of my patients according to my ability and my judgement and never do harm to anyone. To please no one will I prescribe a deadly drug nor give advice which may cause his death.’[4] This is the inviolable principle under which all doctors operate in theory. In addition the ECHR enshrines, in Article 2, the most fundamental human right of all: ‘Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.’ It is submitted that the highly sensitive and emotive issues of the right to life and end-of-life decisions[5] individually constitute highly fertile areas of law and in combination it can come as no surprise that there have been many cases on the issue. It is pertinent to discuss some of the most prominent cases in analysing the adequacy of the position of the ECHR on end-of-life decisions[6]. In the case Pretty v United Kingdom (2002)[7] the applicant was suffering from a degenerative, incurable illness and was paralysed.. She alleged that the Director of Public Prosecutions’ refusal to grant an immunity from prosecution to her husband in the event that he provided her with assistance to commit suicide and the prohibition in UK law on assisting suicide contravened her rights under Articles 2, 3, 8, 9 and 14 of the ECHR. The applicant’s disease was in an advanced and worsening state of almost complete paralysis.. It was asserted that her life expectancy was poor but that her intellect and capacity to make decisions had been left entirely unimpaired. It was claimed the applicant was terrified of the notion of the long, painful and undignified terminal stages of the disease and that she had a very strong desire to be able to choose and control exactly how and when she died so as to be spared the suffering and indignity of a slow death. However, given that she was paralysed her disease prevented her from committing suicide by her own actions, which is otherwise legal under UK law. The applicant therefore requested that the UK government undertook not to take out a prosecution against her husband if he assisted her in committing suicide, which would constitute a crime under UK law. The application was refused, and that refusal was upheld by the House of Lords. The Court found that the Applicant's case should be considered under the terms of Article 8 of the ECHR. Article 8 provides that: ‘(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’ Coupling Article 8 with Article 14, which contains the basic non-discrimination principle, the applicant claimed that she was being denied the freedom to exercise a right enjoyed by other individuals who could end their lives unilaterally and without the need for assistance in that regard because they are not prevented by any disability from so doing. She argued that the complete UK ban on assisted suicide was responsible for causing this discrimination and that the discrimination could not be justified given that the applicant was a member of the class of vulnerable people subject to the protection the law. The European Court reiterated that the concept of discrimination, in terms of the ECHR, constitutes the: ‘disparate treatment of people in very similar conditions or similar treatment of people in vastly different conditions. The member states, however, enjoy a margin of appreciation in drawing the line.’[8] In Pretty, the Court found that it was reasonable for the state to refrain from establishing different laws for those unable and those able to commit suicide unilaterally.. It was noted that the distinction between the two classes may sometimes be blurred and that to seek to build an exemption into the law for those considered to be incapable of committing suicide would seriously jeopardise the protection of life and significantly increase the risk of abuse of the principle. The Court did not find violations under any Article of the Convention. As stated, Article 2(1) stresses that a persons right to life "shall be protected by law". It is submitted that it has been held in cases such as Osman v UK (1999)[9] that means that the state must not only refrain from intentionally taking life but also that it must endeavour to take action to safeguard the lives of those within its jurisdiction. Moreover, as the case McCann v United Kingdom (1995)[10] indicates, it should be noted that the state is required to offer appropriate instructions, training and briefings to those of its agents who are charged with responsibility for a situation where death could occur as a consequence of the actions. It could be argued that this right is analogous to a requirement to take proactive and positive steps to prevent suicides of those individuals held in state custody. Keenan v UK (2001)[11] prompted the European Court of Human Rights to conclude that Article 2 should be read as extending to an active duty to prevent self-inflicted deaths in custody where the authorities had received constructive notice of a ‘real and immediate risk to life’. Interestingly, the provision of poor medical treatment or care was found in McFeeley v UK (1981)[12], and in R (Wright and Bennett) SSHD (2002)[13], to amount potentially to a breach of Article 2. This jurisprudence was confirmed in Edwards v UK (2002)[14]. In McCann v United Kingdom (1995)[15] it was held that the obligation on the state to take positive steps to intervene to protect life also dictated that some form of state sponsored investigation should be undertaken in circumstances where death has occurred in manner applicable to Article 2 or 3 of the Convention. It is contended that the absence of such an investigation is likely to prove offensive to Article 2 per se. The European Court conceded in McCann that the use of lethal force by state servants including the police service may be justifiable under Art.2(2) “where the application of force is based on an honestly held belief that the use of such force was absolutely necessary”. It is submitted that the Court in McCann could not have held otherwise in the circumstances, given that such would likely put a wholly unrealistic burden on law enforcement officers, perhaps, it is suggested, to the detriment of others in society that the law is charged to protect. Concluding Commentary In sum, it cannot be said that there is a perfect fit between the ECHR and the concerns and demands of society and individuals relating to end-of-life decisions. This is unsurprising, given that when the Convention was drafted in the late 1940s such issues were merely a distant blip on the radar of the evolving legal systems of the UK. Advances in medical science often present moral and legal dilemmas and there is no doubt that the ability of physicians to keep people alive far longer than might otherwise have been the case in past decades has created challenges of its own. In simple words, the European Convention’s matrix of principle was not drafted with this problem in mind. This is a moral, legal and jurisprudential minefield touching on religion and the deepest sensibilities and it is submitted that one must proceed with extreme caution. The cases discussed testify that the ECHR is, step by step, slowly establishing a coherent methodological and jurisprudential base for the effective and comprehensive resolution of end-of-life decision cases. However, progress is likely to be slow and, such is the nature of the subject, it is likely that the matter will never be fully balanced and resolved in all contexts. THE END WORD COUNT : 1493 BIBLIOGRAPHY Beauchamp T.L and Childress J.F, Principles of Biomedical Ethics, (2001) Oxford University Press. European Convention on Human Rights: http://www.hri.org/docs/ECHR50.html Human Rights Act 1998: http://www.opsi.gov.uk/ACTS/acts1998/19980042.htm Parker M., Dickenson D., The Cambridge Medical Ethics Workbook, (2001) Cambridge University Press, Chapter 1 “Decisions at the end of life.” Cases drawn from original law reports as footnoted. 1
[1] For full text see: http://www.hri.org/docs/ECHR50.html. [2] For full text see: http://www.opsi.gov..uk/ACTS/acts1998/19980042.htm. [3] http://www.intute.ac.uk/healthandlifesciences/cgi-bin/browse.pl?id=97704&gateway=medhist. [4] See for insightful comment: Leather T. and Dr Pal R., Death Wish, http://www.nhsexposed.com/patients/euthanasia/death_wish.shtml. [5] See for a useful overview: Beauchamp T.L and Childress J.F, Principles of Biomedical Ethics, (2001) Oxford University Press. [6] For an eclectic study see: Parker M., Dickenson D., The Cambridge Medical Ethics Workbook, (2001) Cambridge University Press, chapter 1 “Decisions at the end of life.” [7] ECHR Application no.2346/02, Judgment 29/04/02. [8] Ibid. [9] (2002) 29 EHRR 245. [10] (1995) 21 EHRR 97. [11] (2001) 33 EHRR 38. [12] (1981) 3 EHRR 161. [13] (2002) HRLR 1. [14] (2002) 35 EHRR 19. [15] As cited above.
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