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Last Updated: Wednesday, 21 February 2007, 12:04 GMT
Euthanasia and the law
by Ursula Smartt
Senior Lecturer at Law and Criminology
Thames Valley University

Legal graphic
What is the current criminal law on deliberate euthanasia in Britain and other European states?

Euthanasia or 'mercy killing' is popularly taken to mean the practice of helping severely-ill people to die, either at their request or by taking the decision to withdraw life support.

Euthanasia has been 'decriminalised' in a number of European countries, namely The Netherlands, Belgium and Switzerland.

Additionally, the US state of Oregon has a 'Death with Dignity Act' and Australia the Northern Territories ruling.

Dutch led the way

As early as 1984, the Dutch Supreme Court declared that 'voluntary euthanasia' was 'acceptable', and in 2002, the Netherlands became the first EU country to legalise adult euthanasia.

'Physician-assisted suicide' is now practiced with increasing openness in the Netherlands.

'Assisted suicide' exists in Switzerland; legally condoned, it can be performed by non-physicians.

Swiss law clearly decriminalises assisted suicide without the involvement of a doctor; this means that non-physicians can participate in assisted suicide.

Though issue remains controversial, many terminally ill foreigners, including Britons, now travel to Switzerland to commit suicide, taking advantage of the Swiss rules, which are among the world's most liberal on assisted suicide.

Following the Belgian Parliament's approval of the euthanasia legislation in May 2002, and further legislation in December 2005, pharmacists can now supply doctors with a fatal dose of medicine, making assisted suicide more easily available.

However, in April 2005, the Council of Europe rejected a draft resolution on euthanasia to assist the terminally ill.

The law in the UK

As the law stands in England, Wales and Scotland, deliberate or 'active' euthanasia will normally leave anyone assisting suicide or death liable for murder.

Anthony Bland
Anthony Bland was crushed during the Hillsborough disaster

Within English law, a difference is made between acting and refraining to act; the latter is referred to in English law as an act of omission.

Active euthanasia occurs when treatment is administered with the intention of ending the patient's life.

This question arose in the case of Baby B in 1981, which concerned a Down's syndrome baby, whose survival was said to depend upon speedy surgical intervention to remove an intestinal blockage.

But the child's parents did not sanction the operation.

Making Baby B a ward of court, the local authority applied to the High Court for a direction so that the operation could be carried out.

But a judge in chambers ruled that the parents' wishes must be respected.

On appeal, the decision was reversed by the Court of Appeal in August 1981, on the grounds that there was evidence that if the operation took place, the child would live a normal life span of a 'mongoloid' child with the handicaps and defects of such a child.

Child's death

A similar question arose in Dr Arthur's case which concerned the birth of John Pearson, born in June 1980 in Derby City Hospital.

Diagnosed immediately with Down's syndrome he remained in the care of Dr Arthur, a very experienced consultant paediatrician.

Diane Pretty
Diane Pretty had advanced motor neurone disease

The child died three days after his birth, and Dr Arthur was charge with the baby's murder.

It was alleged that he, in accordance with the child's parents' wishes, had caused, or intended to cause, the child's death by starvation.

It was alleged that he had been withholding the basic essential to life - food - and that the consultant had succeeded in starving the baby John to death.

In October 1981, the trial of Dr Arthur opened at Leicester Crown Court before Judge Farquharson and a jury. Dr Arthur pleaded not guilty to murder.

This was reported on in a controversial article by Malcolm Muggeridge, a 'pro-life' supporter, in the Daily Mail - two days into the trial.

On page six, it read: "The mongol murder baby trial. Baby given a hunger drug to kill him" and "Consultant accused of murdering child that parents did not want."

This, in itself, became a legal battle regarding contempt of court.

The editor and the journalist were later acquitted.

In November 1981, Dr Arthur was acquitted of murder, by direction of the trial judge and by the jury of attempted murder.

Withdrawing treatment

There have been recent cases which have moved the law forward.

One landmark ruling was the 1993 Bland case (Airedale NHS Trust v Bland [1993]).

Anthony Bland was a 17-year-old left severely brain damaged after the Hillsborough Football Stadium disaster in April 1989.

Nottingham Forest and Liverpool played their FA Cup semi-final match at stadium in Sheffield, and too many supporters were allowed into the old stadium, causing a fatal crush of many supporters.

Tony Bland had been in a permanent vegetative state (PVS) until 1993, when his parents and the NHS hospital trust sought permission from the High Court to withdraw the artificial nutrition and hydration that was keeping him alive. The High Court and the House of Lords agreed.

Following the decision in Bland, Sir Mark Potter, then President of the High Court's Family Division, ruled in the case of J. in December 2006, a 53-year-old woman who had been in PVS since 1993, that life support could be discontinued.

Degenerative disease

A similar question arose in the case of Diane Pretty in 2001, a 43-year-old woman, suffering Motor Neurone Disease.

Though a degenerative and incurable disease it was different to the other two cases in that her mind was still active.

Diane Pretty's legal action concerned the question of assisted suicide.

As the law stands, it is an offence to assist another person to commit suicide under section 2(1) of the Suicide Act 1961.

Mrs Pretty asked the Director of Public Prosecution (DPP) to give an undertaking not to prosecute her husband, should he assist her to commit suicide in accordance with her wishes.

The DPP refused permission which was upheld by the High Court in August 2001 and the House of Lords in November 2001.

Leading London human rights lawyer, Ms Chakrabarti, asked the European Court of Human Rights on Mrs Pretty's behalf, whether a terminally ill person could refuse life-saving or life-prolonging medical treatment and lawfully choose to commit suicide.

It was argued that the UK legislation on assisted suicide infringed Diane Pretty's human rights under Arts 2 of the European Convention ('right to life').

But the Strasbourg Court refused permission for assisted suicide, upholding the UK House of Lords' ruling, stating that Art. 2 was also there to protect life and that an intentional consensual killing in the context of 'voluntary euthanasia' was regarded in English law as murder.

The public debate surrounding euthanasia continues - both inside and outside parliament.

Pro-life supporters claim that continental European legislation to legalise euthanasia has been the first step on a slippery slope which has led to an undesirable increase in the number of cases in Switzerland or Holland of end-of-life decisions for morally unacceptable reasons.

  • Ursula Smartt is the author of 'Media Law for Journalists' (Sage Publications, 2006).

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