The inconstancy of Euthanasia law in theory and practice

Otlowski argues that significant inconsistencies exist between the law in theory and the law in practise highlighting the unjust nature of the law in theory. [1]

Academics such as Banovic argue that Euthanasia is ‘treated as murder’ [2] in the UK and is therefore unjustifiable. This is partially accurate as euthanasia satisfies the actus reus of murder and is therefore held to ‘offend criminal law’ [3], it is not treated exactly like murder at a common law level. Firstly, when dealing with murder cases, the court has shown a lack of consideration for the consent of the ‘victim’ or ‘good motives’ of the defendant, [4] with Lord Mustill holding in HM Advocate v Rutherford [5] that: “the crime does not cease to be murder merely because the victim has consented, or even has urged the commission of the deed”. In contradiction to this judgement, no doctor who has proven that they complied with the patients informed consent to end their life through euthanasia and been subjected to a murder prosecution, has ever been convicted of the full offence of murder in the UK. [6] Implying that the wishes of the patient form an informal defence to the act of murder when it is in a medical setting. The refusal of the courts to implement the historic judgement of HM Advocate to Euthanasia cases allows the courts to take a slightly more patient centred approach by taking into account the consent of the patient. The common law for euthanasia is therefore moving in the direction of being justified. This shows that while Banovic is partially correct as euthanasia is treated like murder in theory and doctors who administer euthanasia face charges of murder, the presence of patient consent allows them to avoid conviction. This approach by the courts arguably satisfies Jackson’s argument that the UK law needs to take a patient centred approach to be justified, in taking into account the patients consent the courts are placing significance on patient autonomy. Therefore this approach can be argued to be justified.

However, while this approach allows for patient autonomy, it could be argued that considering Euthanasia separate to murder could create a way for doctors to commit murder under the guise of euthanasia simply based on their profession. This was shown in R v Moor. The defendant, a doctor, was prosecuted for administering euthanasia. The defendant administered the euthanasia, and was prosecuted in-front of a jury. Hooper J argued on behalf of the defendant that is was a ‘great irony that a doctor who goes out of his way to care for [the victim] ends up facing the charge that he does’. Moor was acquitted. On one hand, it could be argued that R v Moor shows that the current law is unjustified as it is incompatible with society. Otlowski argues that if society has reached the stage where medical conduct such as life shortening care is regarded as acceptable then the law should follow. [6] However, this special treatment of doctors at a common law because of their profession, cannot be justified as it relies on the presumption that doctors are incapable of harm, and therefore threatens the protection of the vulnerable creating an imbalance. Some academics such as Sulmasy and Cambell, believe  that this is unjustified and that the only way to rectify this is implementing an even stricter binary approach whereby euthanasia is regarded as murder regardless of context or intent on the basis of it being ‘unethical’, and that moving towards a patient-centred approach is incompatible with the ‘sanctity of life’, [7] setting a precedent that the lives of the vulnerable are lesser. [8] Huxtable argues further that the treatment of doctors accused of euthanasia by the courts by creating an ‘explicit category of compassionate killing’ is not justified and instead creates a ‘shadowy, unpredictable and ad hoc compromise’. [9] This arguably calls for the creation of a middle ground between criminalisation and legalisation without doctors receiving special treatment due to their profession. Keating and Bridgeman suggest that law reform should take the form of ‘requiring evidence that the deceased was experiencing extreme and unbearable suffering prior to death’, [10] however it can be argued that the current approach at common law of taking into account patient consent should also remain with law reform as it is justified to centre patient autonomy above all. Therefore, while the current law’s protection of patient autonomy creates a justified approach, the unregulated nature coupled with the juxtaposition with the legal theory that Euthanasia meets the standards for murder, leaves the law vulnerable to exploitation.

[1] Margaret Otlowski, Voluntary Euthanasia and the Common Law (1st edn, Oxford University Press, 2000)

[2] Bozidar Banovic, Veljko Turanjanin, ‘Euthanasia: Murder or Not: A Comparative Approach’ 43(10) 2014 Iran Journal of Public Health 1316

[3] Andrew Grubb, ‘Euthanasia in England – A Law Lacking Compassion?’ 8(2) (2001) European Journal of Health Law

[4] Chrystala Fakonti, ’Motivated by Compassion: Reviewing the Proposed Public Interest Guidance for Prosecuting Mercy Killings’ [2023] The Journal of Criminal Law

[5] HM Advocate v Rutherford [1947] JC

[6] Williams G, The Sanctity of Life and the criminal law (1st edn, Faber & Faber Ltd, 1958) 936

[7] Margaret Otlowski, Voluntary Euthanasia and the Common Law (1st edn, Oxford University Press, 2000)

[8] Daniel Sulmasy ‘Speaking of the value of life’ 21(2) 2011 Kennedy Institute of Ethics Journal 181

[9] Jane Campbell, ’Disabled people like me fear legal assisted suicide: it suggests that some lives are less worth living’ (The British Medical Journal, 2019) <https://blogs.bmj.com/bmj/2019/02/06/> accessed 8 May 2024

[10] Richard Huxtable, ‘splitting the difference? Principled compromise and assisted dying’ 28(1) 2014 Bioethics 472-480

[11] Heather Keating, Jo Bridgeman, ‘Compassionate Killings: The case for a partial defence’ 75(1) 2012 Modern Law Review 697-721