Death and the Law

1. Death and the Law Unit 20

2. Preview • Homicide • Suicide • Euthanasia • Abortion

3. Homicide • Unlawfulkillingof a human being

4. Homicide • 1) Murder • 2) Manslaughter: a) voluntary; b) involuntary • 3) Statutoryoffences: a) causingthedeathbydangerousdriving (RoadTrafficAct 1988); b) Infanticide (InfanticideAct 1938)

5. Suicide • Theactoftaking one’s own life voluntarilyandintentionally • Before 1961 – anattempt to killoneselfresultedin a chargeofacriminaloffence • Abolishedbythe Suicide Actof 1961

6. Suicide • The Suicide Act 1961 abolishedthecrimeof suicide andthecrimeofattemptedsuicide • Bythe same Act, it is stillanoffence to aid, abet, counsel or procure suicide, andthose who do socanbeimprisoned for up to 14 years; confirmedbytheHouseofLordsinThe Queen on theapplicationofDiannePretty v D.P.P. (2001)

7. Offencesagainst a foetus • Killing a foetus is notmurder or manslaughter, but there are otheroffenceswhichmaybecharged: • 1) childdestruction • 2) abortion

8. Childdestruction • ‘Anyperson who, withintent to destroythe life of a childcapableofbeingbornalive, byanywilfulactcausesachild to diebefore it hasanexistenceindependentofitsmother, shallbeguiltyofanoffence’ (s1(1) Infant Life (Preservation) Act 1929)

9. Childdestruction • Where a woman is 28 weeks or more pregnant, thisisproofthatthechildwascapableofbeingbornalive (s1(2) Infant Life (Preservation) Act 1929) • However, theprosecutioncantry to prove thatthechildwascapableofbeingbornaliveeventhoughthefoetuswaslessthan 28 weeks

10. Childdestruction • It is notanoffenceiftheactis done withthe ‘purposeofpreservingthe life ofthemother’ (Bourne 1939) • There is no offenceifthepregnancy is terminatedby a registeredmedicalpractitionerinaccordancewiththetermsoftheAbortionAct 1967

11. R v Bourne [1938] 3 All ER 615 • A 14 yearoldgirlwasrapedbyfivesoldiersandbecamepregnant as a result. Aneminentgynaecologistperformedanabortion on herandwaschargedwiththeoffenceofconductinganillegalabortion. He wasacquitted. MrJusticeMacnaghten:

12. R v Bourne [1938] 3 All ER 615 • “Ifthedoctorisoftheopinion, on reasonablegroundsandwithadequateknowledge, thattheprobableconsequenceofthecontinuanceofthepregnancywillbe to make thewoman a physicalormentalwreck, thejury are entitled to take theviewthatthedoctorisoperating for thepurposeofpreservingthelifeofthemother” • (Defenceofnecessityincriminallaw)

13. Abortion • Theterminationofpregnancybefore it is completewiththepurposeofdestroyingthefoetus • Before 1967 it was a criminalact to end, or to helptoend a pregnancy

14. Abortion • By s1(1) AbortionAct 1967, there is no offenceifthepregnancy is terminatedby a registeredmedicalpractitionerwheretwodoctors are oftheopinionthat: • Thepregnancyhasnotexceededthe 24th weekandthatthecontinuanceofthepregnancyinvolvesgreaterriskofinjury to health ofthewoman or anyexistingchildrenof her familythanifthepregnancywasterminated;

15. Abortion • At any time duringthepregnancyifthetermination is necessary to preventgravepermanentinjurytothephysical or mental health ofthepregnantwoman

16. Roe v. Wade (1975) • Facts. Texas statutes made it a crime to procure or attempt an abortion except when medically advised for the purpose of saving the life of the mother. • Appellant Jane Roe sought a declaratory judgment that the statutes were unconstitutional and an injunction to prevent defendant Dallas County District Attorney from enforcing the statutes.

17. Roe v. Wade (1975) • Appellant alleged that she was unmarried and pregnant, and that she was unable to receive a legal abortion by a licensed physician because her life was not threatened by the continuation of her pregnancy and that she was unable to afford to travel to another jurisdiction to obtain a legal abortion.

18. Roe v. Wade (1975) • Appellant sued on behalf of herself and all other women similarly situated, claiming that the statutes were unconstitutionally vague and abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.

19. Roe v. Wade (1975) • Issue. Do the Texas statutes improperly invade a right of the appellant to terminate her pregnancy embodied in the concept of personal liberty contained in the 14th Amendment’s Due Process Clause, in the personal marital, familial, and sexual privacy protected by the Bill of Rights, or among the rights reserved to the people by the 9th Amendment?

20. Roe v. Wade (1975) • Held. The right to personal privacy includes the abortion decision, but the right is not unqualified and must be considered against important state interests in regulation.

21. Roe v. Wade (1975) • For the stage prior to the approximate end of the first trimester, the abortion decision must be left to the medical judgment of the pregnant woman’s physician, and may not be criminalized by statute.

22. Roe v. Wade (1975) • For the stage subsequent to the approximate end of the first trimester, the State may regulate abortion in ways reasonably related to maternal health based upon the State’s interest in promoting the health of the mother.

23. Roe v. Wade (1975) • The Court finds that an abortion statute that forbids all abortions except in the case of a life saving procedure on behalf of the mother is unconstitutional based upon the right to privacy. • The court declined to address the question of when life begins.

24. Roe v Wade (1975) • The historic Supreme Court decision overturning a Texas interpretation of abortion law and making abortion legal in the United States. • held that a woman, with her doctor, could choose abortion in earlier months of pregnancy without legal restriction, and with restrictions in later months, based on the right to privacy.

25. Roe v. Wade • The court heldthatstatesmayprohibitabortion to protectthe life ofthefoetusonlyinthe third trimester • EmbracedbyfeministsanddenouncedbymanyChristians

26. Moral issues • If life is sacred, does a foetuscount as a personcapableofsufferingharm? • If it does, how is endingits life to bedistinguishedfromthe humane killingof a living human?

27. Moral issues • Shouldthewelfareoftheunbornprevailoverthedistresssufferedby a womancompelled to anunwantedpregnancy, or enduretheanxiety, cost, anddifficultyofbringingup a handicappedchild?

28. Euthanasia • Literally: Gooddeath (fromtheGreekwords “eu” and “thanatos”) • Alsocalled ‘mercykilling’ • Intentionalkillingbyact or omissionof a dependant human being for his or her allegedbenefit

29. Euthanasia • Thequestionofanindividual’s right to die

30. Euthanasia • Active • Passive

31. Activeeuthanasia • Endingof a person’s life by a positiveact, e.g. a lethalinjection

32. Passiveeuthanasia • Endingof life byanommission to act, e.g. a withdrawaloftreatment • Courtshavenotfound it easy to determinethelawfulnessofwithdrawing life supportfromanincurably or terminallyillpatient who is in a persistentvegetative state (PVS), unable to makeanautonomousdecision

33. Euthanasia • Voluntary: whentheperson who is killedhasrequested to bekilled • Non-voluntary: whentheperson who is killedmade no requestandgavenoconsent

34. Assisted suicide • Assisted suicide: someoneprovidesanindividualwiththeinformation, guidanceandmeans to taketheir life withtheintentionthattheywillbeused for thepurpose

35. Euthanasiaandthelaw • TheNetherlands - the first country to allowso-calledmercykilling • Publicapprovalratingsofnearly 90% for legalisationofeuthanasia • Doctorshavetheright to refuseandpatientshavetherighttochooseeuthanasia

36. Conditions • Doctors must • A) beconvincedthatthepatient’s requestwasvoluntary, well-consideredandlasting • B) beconvincedthatthepatient’s sufferingwasunremittingandunbearable • C) haveinformedthepatientofthesituationandprospects

37. Conditions • E). havereachedtheconclusionwiththepatientthattherewas no reasonable alternative • F). Haveconsulted at least one otherphysician • G). havecarriedoutthe procedure in a medicallyappropriatefashion • (Section 293(2) oftheDutchCriminalCode)

38. Airedale N.H.S. Trust v Bland [1993] A.C. 789 House of Lords • Tony Bland was a young supporter of Liverpool F.C. who was caught in the Hillsborough crush which reduced him to a persistent vegetative state. He had been in this state for three years and was being kept alive on life support machines. His brain stem was still functioning, which controlled his heartbeat, breathing and digestion, so technically he was still alive.

39. Airedale N.H.S. Trust v Bland [1993] A.C. 789 House of Lords • He was not conscious and had no hope of recovery. The hospital with the consent of his parents applied for a declaration that it might lawfully discontinue all life-sustaining treatment and medical support measures designed to keep him alive in that state, including the termination of ventilation, nutrition and hydration by artificial means. 

40. Airedale N.H.S. Trust v Bland [1993] A.C. 789 House of Lords • Held:The declaration was granted. 

41. Airedale N.H.S. Trust v Bland [1993] A.C. 789 House of Lords • The court recognised there was the intention was to cause death. Lord Goff stated to actively to bring a patient's life to an end is:"to cross the Rubicon which runs between on the one hand the care of the living patient and on the other hand euthanasia - actively causing his death to avoid or to end his suffering. Euthanasia is not lawful at common law"

42. Airedale N.H.S. Trust v Bland [1993] A.C. 789 House of Lords • Withdrawal of treatment was, however, properly to be characterised as an omission. An omission to act would nonetheless be culpable if there was a duty to act. There was no duty to treat if treatment was not in the best interests of the patient. Since there was no prospect of the treatment improving his condition the treatment was futile and there was no interest for Tony Bland in continuing the process of artificially feeding him upon which the prolongation of his life depends.

43. Dissentingopinion (LordsKeithandMustill) • “It seems to me to bestretchingtheconceptof personal rightsbeyondbreakingpoint to saythatAnthonyBlandhasaninterestinendingthesesourcesofothers’ distress. Unliketheconsciouspatient he doesnotknowwhat is happening to his body…Thedistressingtruthwhich must notbeshirked is thattheproposedconductisnotinthe best interestsofAnthonyBland, for he has no best interestsofanykind.”

44. NHS Trust A v M; NHS Trust B v H(2000) • ThePresidentoftheFamilyDivisionheardapplications on behalfoftwo NHS trusts to bepermittedtodiscontinuetreatmentinthecasesoftwopatients who werein ‘persistentvegetativestates’

45. NHS Trust A v M; NHS Trust B v H(2000) • Applications – notopposedbythepatients’ relatives • The court decided it wasnotcontrary to Article 2 to allowthesepatientstodie

46. NHS Trust A v M; NHS Trust B v H(2000) • Article 2 – didnotcover ‘actsofomission’ when it was no longerinthepatient’s best interests to receivetreatment, andwhen it wasshownthat ‘theywoulddieswiftlyandpainlesslyifnutritionandhydrationwerewithdrawn.’

47. Re B, 2002 • Anadultpatientwasparalysedfromtheneckdownandkeptaliveby ventilator • Shewishedartificialventilation to beremovedeventhoughsherealisedthiswouldresultin her death • Herdoctorswerenotprepared to do this

48. Re B, 2002 • Thejudgeheldthattherightof a competentpatient to requestthecessationoftreatment had to prevailoverthe natural desireofthemedicalprofessions to keep her alive

49. Re B, 2002 • Ifmentalcapacitywerenotinissue (thepatientwasofsoundmind) andthepatient, havingbeengiventherelevantinformationandofferedtheviableoptions, chose to refusetreatment, thatdecision had to berespectedbythedoctors

50. Theright to die? • In 2001, DiannePrettywassuffereingfrom motor neurone disease, a progressive degenerativeillnessthatwas terminal