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L. W. Sumner: Assisted Death: A Study in Ethics and Law

Oxford University Press, 2011, x +214 pp, ISBN: 978-0-19-960798-3 (Hardback)

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Notes

  1. The most recent being, for example, R. Huxtable, Law, Ethics and Compromise at the Limits of Life. To Treat or not to Treat (Routledge-Cavendish, 2012); S. W. Smith End-of-Life Decisions in Medical Care. Principles and Policies for Regulating the Dying (Cambridge University Press, 2012); E. Jackson and J. Keown Debating Euthanasia (Hart, 2011).

  2. Although Sumner concedes that the ethical and legal arguments are not “independent” (p. 21). He also excludes all religious perspectives.

  3. Other points made are more in the nature of a discussion of contentious topics raised.

  4. Re Y (Mental Capacity: Bone Marrow Transplant) [1997] 2 F.C.R. 172.

  5. Re C (Adult: Refusal of Medical Treatment) [1994] 1 W.L.R. 290.

  6. Gillick v West Norfolk and Wisbech AHA [1986] A.C. 112; Re S (A Minor) (Consent to Medical Treatment) [1994] 2 F.L.R. 1065; Re E (A Minor) [1993] 9 BMLR 1, and Re L (Medical Treatment: Gillick Competency) [1998] 2 F.L.R. 810. Note however that doctors only challenge a patient’s capacity when treatment is refused. For example, in B(Adult: Refusal of Medical Treatment) [2002] EWHC 429 (Fam), the hospital challenged not the patient’s refusal of ventilation, but her capacity to make the decision, even though it was perfectly clear that she was competent.

  7. R v Moloney [1985] 1 All E.R. 1025 at 1037.

  8. R v Nedrick [1986] 3 All E.R. 1. The test has been applied in subsequent cases (albeit the word “infer” has been changed to “find”).

  9. R (On the Application of Oliver Leslie Burke) v the GMC et al. [2005] EWCA Civ 1003 (CA) (2)) at [34]. Note that these are all UK cases. Although purporting to look at the US, Canada and the UK, there is very little focus on UK cases in the book, however, this may be an unfair criticism, as Sumner’s speciality would presumably be in Canadian law.

  10. Sumner’s p. 63 and his three (as opposed to four) DDE conditions on p. 57. See discussion below.

  11. Sumner elaborates on this in his chapter 4, where he debates a “convincing case against suicide on sanctity of life grounds” using Thomistic and Kantian interpretations. I am not sure that the sanctity of life argument is comparable from a legal point of view to either the DDE or the DDA, the latter relaying more on linguistic and semantic connotations.

  12. Sumner elaborates on this point further (p. 91) where he writes that, in the illustration he has been using, and when all other relevant factors are equal, “if suicide is justified … then so is assisted suicide, and if that is justified then so is euthanasia.” It has to be said that the leap in logic here is astounding—it does not follow on that simply because suicide is ‘justified’ that euthanasia can also be justified. Moreover, how could you possibly prove that all the factors are equal? Even in his own illustration on p. 95, Sumner has had to adapt the facts in order to ensure equality.

  13. This is condition 2 of the DDE, which will be discussed further below. Or as Sumner argues, that death is a “harm” (p. 71).

  14. Sumner talks further about life as a “good” on pp. 78–82. See below.

  15. But only if five conditions are satisfied: patient request; capacity; voluntariness; disclosure and diagnosis (pp. 90–91). These conditions incorporate the criteria Sumner sets out as satisfying the Doctrine of Informed Consent (DIC) in chapter 2. Patient autonomy (or self-determination) and well-being are the “values” which are “served by the DIC” (p. 33).

  16. G.Williams Intention and Causation in Medical Non-killing. The Impact of Criminal Law Concepts on Euthanasia and Assisted Suicide (Routledge-Cavendish, 2007) at 91.

  17. Evans v Gardiner (No. 2) (1976) V.R. 523.

  18. R.Hunt “Taking Responsibility for Affecting the Time of Death” (1999) 13 Pall. Med. 439 at 441.

  19. For the patient. It does for the doctor, as he could be accused of assisting in a suicide.

  20. See especially the British Pain Society’s paper on Opioids for Persistent Pain at http://www.britishpainsociety.org/book_opioid_patient.pdf (accessed 19 June 2012). See also the recent (May 2012) NICE Guidance on Opioids in Palliative Care at http://guidance.nice.org.uk/CG/Wave24/4 (accessed 19 June 2012).

  21. N. McDonald and D. J. Roy “Ethical Issues in Palliative Care” in D. Doyle, G. W. C. Hanks and N. McDonald (eds) Oxford Textbook of Palliative Medicine (2nd ed) (Oxford University Press, 1998).

  22. Terminal sedation is “the administering of a sedating drug for the purpose of relieving suffering by diminishing consciousness at the end of life.” P. K. Portenoy “Morphine Infusions at the End of Life: The Pitfalls in Reasoning from Anecdote” (1996) 12 Journal of Palliative Care 44.

  23. N. Sykes and A. Thorns “Sedative Use in the Last Week of Life and the Implications for End-of-life Decision-Making” (2003) 163 Archives of Internal Medicine 341.

  24. Sedatives are tranquilizers which depress the central nervous system and can induce anything ranging from mild sedation to total anaesthesia. Analgesics are simply pain-killers. See Huxtable on this topic generally; Euthanasia, Ethics and the Law: From Conflict to Compromise (Routledge-Cavendish, 2007) at pp. 88–91.

  25. P. D. Wall “The Generation of Yet Another Myth in the Use of Narcotics” (1997) 73 Pain 121.

  26. G. Williams “The Principle of Double Effect and Terminal Sedation” (2001) 9 (1) Med.L.R. 41 at 53. As has been asked when withdrawing a.n.h.—“at what, other than … death could we be aiming?” G. Meilander “Caring for the Permanently unconscious Patient: Why feeding is not Medical Care” in J Lynn (ed) By No extraordinary Means: The Choice to Forego Life-Sustaining Food and Water (Indiana University Press, 1989) at 197.

  27. P. J. Van der Maas et al. “Euthanasia and Other Medical Decisions at the End of Life” 1992. Vol.2 Health Care Policy Monographs, Elsevier, Amsterdam, at 21.

  28. However, Sumner concludes that if neither Thomistic or Kantian theory is good enough, then “suicide can be both rational and ethical”. See below.

  29. Re T (Adult: Refusal of Medical Treatment) [1992] 4 All E.R. 649 at 652–3.

  30. D. Lester “Psychological Issues in Euthanasia, Suicide and Assisted Suicide” (1996) 52 (2) J Soc Issues 51 at 54.

  31. C. Paterson, Assisted Suicide and Euthanasia. A Natural Law Ethics Approach (Ashgate Pub. Ltd., 2008) Perhaps we can concede that death might be a good insofar as it ends a patient’s extreme suffering, but as we do not know what awaits us upon death, it is impossible to make any such judgement.

  32. This is a difficult point to argue, as it is known that, in law, it makes no difference how little time a person has left to live.

  33. J. Feinberg Harm to Others (Oxford University Press, 1984) at 33.

  34. G. Williams “Assisting Suicide, the Code for Crown Prosecutors and the DPPs Discretion” (2010) 39 (2) C.L.W.R. 181 at 200.

  35. ibid. This again is difficult to maintain, as sanctity of life is not in any event absolute.

  36. L. Kass “Neither for Love nor Money: Why Doctors Must Not kill” (1989) The Public Interest 94.

  37. B v An NHS Hospital Trust 2002 WL 347038 at [13].

  38. M. J. Edwards and S. W. Tolle “Disconnecting a Ventilator at the Request of a Patient who Knows He Will Then Die: The Doctor’s Anguish (1992) 117 (3) Annals of Internal Medicine 254.

  39. C. Docker “The Way Forward?” in McLean, Death Dying and the Law at 142. D. Grossman On Killing: The Psychological Cost of Learning to Kill in War and Society (Little, Brown & Co., 1995).

  40. Who performs the last act is said to be the distinguishing factor between assisted suicide and euthanasia, although this is a very fine line.

  41. C.Dupré “What does Dignity mean in a Legal Context?” guardian.co.uk Thursday 24 March 2011.

  42. Sumner distinguishes between nonvoluntary, and involuntary, the latter being when a decision is imposed on a competent patient “against her will” (p. 101, fn.1).

  43. There follows a detailed discussion of advance directives on pp. 103–111. Sumner notes (pp. 103 and 114) that such directives could, for example, request future treatment. As requesting treatment is not permitted even in contemporaneous decision-making in the UK, it is doubtful that such a provision would (currently) apply. Moreover, Sumner takes this a step further (p. 116) in suggesting that if advance directives can ask for treatment withdrawal, “it would be equally acceptable to end her life by means of a lethal injection …” but concedes (on p. 117) that this would be an involuntary “making death happen” scenario. On p. 116, Sumner accuses Dresser of making “sweeping claims” but falls into that trap that himself here (see also fn. 12 above).

  44. Italics in original. Experiental interests “consist of the pleasures or enjoyment we take in things that we do or that happen to us” while critical interests “are based on a person’s convictions of how her life should go and the goods it should contain.” (p. 109).

  45. Airedale NHS Trust v Bland [1993] 2 WLR 316 at 373.

  46. In the first published statement of its kind, the DPP decided that, although there was enough evidence to prosecute Daniel James’s parents for accompanying their son to the Dignitas clinic, and their friend, who had assisted him with travel arrangements, it would not be in the public interest to do so. The decision can be found at http://www.cps.gov.uk/news/articles/death_by_suicide_of_daniel_james/index.html (accessed 8 November 2012).

  47. Published in February 2010, following the House of Lords decision in Purdy. This can be accessed at: http://www.cps.gov.uk/publications/prosecution/assisted_suicide_policy.html (accessed 6 August 2012).

  48. M. Hirst “Assisted Suicide After Purdy: The Unresolved Issue” [2009] Crim.L.R. 870 at 870.

  49. R (On the Application of Purdy) v DPP [2009] EWCA Civ 92, per Lord Brown at [81].

  50. A. Mullock “Overlooking the Criminally Compassionate: What are the Implications of Prosecutorial Policy on Encouraging or Assisting Suicide?” [2010] 18 Med.L.R. 442 at 445-6.

  51. The only indication of this is contained in his fn 62, on p. 147.

  52. Per Butler-Sloss in Re SL (Adult Patient: Sterilisation) (2000) Lloyds Law Rep (Med) 339 at 346.

  53. He also advocates “euthanasia directives” (p. 170) which would have the same authority as advance directives to refuse treatment.

  54. Of all the countries where there is legislation, Oregon requires that the illness be terminal, with a life expectancy of 6 months. Before it was repealed, the Northern Territory legislation also required the illness to be terminal.

  55. Office of Public Prosecutions v Chabot (1994) Nederlandse Juisprudentie 656.

  56. J. Edwards “The Moral Step Back” Unpublished PhD Thesis, Aberystwyth University, at p. 281.

  57. The only obvious exceptions are McKay v Bergstedt 106 Nev. 808; 801 P.2d 617; 1990 (a quadriplegic whose request that his ventilator be withdrawn was requested), Burke, and Re AK (Medical Treatment: Consent) [2001] 1 F.L.R. 129.

  58. His “three dominating [ethical] themes” are set out on p. 127.

  59. See fns 12 and 43 above. Sumner also errs in saying that euthanasia is “a form of homicide under the Homicide Act 1957” (p. 134). Homicide in the UK is solely a Common Law construct and is not covered in legislation.

  60. For example, the information on Latimer, Nancy Morrison; Bouvia and the reference made to Cruzan, referred to earlier.

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    Glenys Williams

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Williams, G. L. W. Sumner: Assisted Death: A Study in Ethics and Law. Criminal Law, Philosophy 7, 403–416 (2013). https://doi.org/10.1007/s11572-013-9214-0

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