HEC Forum (2007) 19 (2): 145159. DOI 10.

1007/s10730-007-9036-3

Springer 2007

The Slippery Slope of the Middle Ground: Reconsidering Euthanasia in Britain

Peter Kakuk

It is an irony of progress that some of the most powerful technological advances in modern medical care that have made it possible to save the lives of thousands of people have also provided the means to prolong the suffering of others. They might be considered to be victims of medical technology that has developed in the last few decades with immense rapidity. Overly aggressive treatment in the final stages of terminal illness has exacerbated concerns regarding painfully prolonged deaths. Alongside these developments has appeared an expanding public awareness concerning individual rights under the law and the value of self-determination has gained in importance even in the legal context of healthcare. Although both the law and the medical profession have responded to the challenges of technological progress and social change, the limited possibilities for people to make decisions about the manner of their death has been insufficient to resolve the situation. There exists lively debate and an increasing number of ongoing wide-ranging research programmes that focus on the controversial issue of end-of-life decisions in modern medical care. Britain is no exception to the case, indeed: Parliament is to re-examine the question of helping terminally ill people to die, ten years after the possibility of making it legal was rejected by the House of Lords Select Committee on Medical Ethics (BMJ, 2003, p. 1186). More recently, a House of Lords Select Committee report has been published that would seem to take us one step further toward implementing new legislation regarding assisted suicide and voluntary euthanasia in the United Kingdom, but: the committee was divided on whether the law should be changed (BMJ, 2005, p. 807). In what follows, I present a line of argumentation supporting the view that further legislation might be necessary on the issue. It constitutes a critique of the views of those who consider that the contemporary legal framework and medical practice concerning end-of-life issues might be problematic to a certain extent, but
_____________________________________________________________________________________ Peter Kakuk, M.A., Institute of Behavioral Sciences of the University of Debrecen Medical and Health Sciences Center, Nagyerdei Blvd. 98, P.O. Box 45, 4012 Debrecen, Hungary; email: kakukp@med.unideb.hu.

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are not worth changing in light of the possible consequences. A few years ago McCall Smith presented, in a paper of his, some influential arguments supporting the view that the current United Kingdom law on euthanasia had reached a satisfactory level. According to him, the current law on this issue: represents the achievement of a morally sensitive compromise which should be left undisturbedwhich satisfies the complex needs of a delicately-nuanced problem (1999, p. 194). In the same paper, he also explicitly states that there is neither a need for legislation, nor a further need for extensive clarification by the courts on the subject. He is acutely aware that such a stance might be unacceptable for both opposed parties in the euthanasia debate and, moreover, according to his view on current law: risks being branded as both complacent and conservative (p. 194). So why is he taking these risks that accompany the position of the middle ground? Anyone who is familiar with British legal cases of the last decade concerning end-of-life medical decisions cannot seriously think that his position drives from a real satisfaction with the state of the law on this issue. The source may lie elsewhere, and might originate due to his worries concerning the long-term consequences of legal permission of euthanasia. As McCall Smith states: if we make euthanasia a special case, we run the risk of destabilising the law of homicide (p. 197). But is it realistic to think that by making a special case of homicide under the law that the strength and authority of the law would be weakened? Are there other ways for the law to lose its strength and authority? Before attempting to answer these questions we will discuss McCall Smiths arguments in more detail as well as the main problems in current law concerning end-of-life medical decisions. But first we should make some preliminary remarks regarding the general nature of the euthanasia debate. Preliminary Remarks The issue is very complex; both its concepts and its empirical findings are controversial. Moreover, as Brazier observes: The uncertainties and doubts that affect public attitudes towards the euthanasia debate are compounded by misunderstanding about, and lack of clarity in, the relevant law (2003, p. 439). In the euthanasia debate concepts are of great importance. To name is to create. The word eu-thanasia (good/easy-death) of Greek origin cannot be employed without the emergence of concomitant problems. The term is neither transparent, nor lacks a historical connotation with serious import; both circumstances may well, therefore, lead us to an understanding that fails to grasp the real question that is currently being asked (Macklin, 1999, p.

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111-114; Proctor, 1988). The term generally used as good death or easing the passing that might be applied for a wide range of end-of-life practices, including the most often occurring withdrawal of treatment in the case of terminally ill patients. However, in the legal context there is an insistence that these cases do not constitute euthanasia. In British legal practice the term euthanasia is preserved to denote the prohibited acts, those occasions when the premature termination of life is the intended aim. When an end-oflife decision is legally permitted it gains a special name such as medical futility, withholding treatment, withdrawing treatment or palliative care, but never euthanasia. A widely used British textbook says: While motive is irrelevant, intention is all important. If a doctor intends to kill, he is liable to prosecution as is the layman (Mason, McCall and Laurie, 2002, p. 531). Euthanasia involves killing, and killing is prohibited. Although U.S. cases are not binding for British judges, the decisions of the U.S. courts might be relevant to a certain extent. However, their approach to gain a reliable overview of the trends and decisions of the U.S. courts might raise difficulties, because of the many courts in the U.S. and the number of decisions within the country. It should be explicitly stated that the majority of proponents of the legalisation of a wider variety of end-of-life practices have the following goal in mind: they do not desire competent people who are terminally ill and who experience unbearable suffering to be deprived of the possibility to die with dignity. This entails their having a very limited concept of euthanasia in mind. In their arguments, they stress the importance of autonomous decision and the restriction that results from the exceptional circumstances of a particular medical condition. Arguments from the Middle Ground McCall Smiths basic presumption, or starting point, in discussing the issue of euthanasia is that: [It] cannot be considered in isolation from the broader law of homicide, and it is this which makes it inevitable that the debate is a legal one, involving lawyers, rather than purely a debate for moral philosophers, lay and professional (McCall Smith, 1999, p. 202). We think no one would question the relevance of the legal context in the public debate concerning euthanasia; it should also be added that we should neither consider it in isolation from the context of current medical practice, nor should we overlook the relevance of the moral context of the issue. An adherent of the latter could gain some relevance in his argument, insofar as he could not avoid reflecting somehow upon one of the central moral issues of the euthanasia debate, referred as the passive/active distinction. But will

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he have given adequate consideration to the context of current medical practice? The passive/active distinction plays a crucial role in distinguishing between prohibited and permitted acts in different end-of-life medical practices. This is what creates the difference between killing and letting die. In part, this is what justifies the drawing of a boundary between withholding and withdrawing treatment, on the one side, and physician assisted suicide and voluntary active euthanasia, on the other. The act is permitted because it can be described as an omission on the part of the doctor. It is relatively clear that withholding life-sustaining treatmente.g., ventilation, cardiopulmonary resuscitation, etc.on request by a competent patient could be described as omission. But those cases wherein previously initiated treatment has been withdrawn could pose serious problems in the light of the passive/active distinction. How can we think of switching off the ventilator as a passive act when authorized by a doctor? Judges were uneasy with this distinction. We have seen how they struggled to describe the role of doctors in these cases as an omission. In the case of Ms. B, Lord Browne-Wilkinson argued: Apart from the act of removing the naso-gastric tube, the mere failure to continue to do what you have previously done is not, in any ordinary sense to do anything positive; on the contrary it is by definition an omission to do what you have previously doneThe positive act of removing the naso-gastric tube presents more difficulty. It is undoubtedly a positive act, similar to switching off the ventilator in the case of a patient whose life is sustained by artificial ventilation. But in my judgement in neither case should the act be classified as positive, since to do so would be to introduce intolerable fine distinctions. If instead of removing the naso-gastric tube, it was left in place but no further nutrients were provided for the tube to convey to the patients stomach, that would not be a positive act In my judgement, essentially what is being done is to omit to feed or ventilate; the removal of the naso-gastric tube or the switching off a ventilator are merely incidents of that omission (B v NHS Trust, 2002, 2 All ER 449, p. 881). Interpreting the practical meaning and consequences of the moral philosophical criticism on the passive/active distinction in the context of the euthanasia debate, we would not go so far as to state that it has no relevance in our everyday moral lives, because the distinction is inconsistent in the light of different exemplary cases. We would agree with McCall Smiths opinion that this distinction does express a widespread moral intuition, and there is every reason for giving such intuitions a central role in our morality (1999, p. 202). However, we do not see why it should not be possible to give

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up the absolute decisive role given to this distinction in interpreting complex end-of-life practices. There are other morally relevant characteristics of endof-life practices that should play a more significant role in the final analysis, such as the wishes of the patient, his or her medical condition, and so forth. According to McCall Smith, the decisive role given to the passive/active distinction is justified by the practical realities of the law of homicide: If it is the casewhich it isthat we regard the prohibition against killing as a basic moral value, then it is important to ensure that our criminal law embodies a firm rule that all taking of life is punishable as a serious offence. Any exception to this rule is only cautiously admitted (1999, p. 204). Further, he cites the example of self-defense as the only case where the firm rule finds an exception. Here we must ask whether it would be possible to imagine a cautious admittance of another exception. McCall Smith has two different answers to this question. The first answer expresses some scepticism concerning our capability to differentiate between the good and the bad; as he says: we cannot trust ourselves to distinguish between the meritorious and the unmeritorious (1999, p. 205). What could it mean in light of the fact that McCall Smith accepts that there could be circumstances in which death is preferable to life (1999, p. 205)? Would it be a serious misinterpretation to detect some inconsistency in this part of his reasoning? Maybe yes; nonetheless we should be more concerned with his second justification for the maintaining of a deep prohibition of the taking of human life. He states that: we cannot assume that gradual extensions of a principle will not bring us inexorably to a place where we can identify, in advance, we do not wish to beThe prohibition against killing has to be absolute because the making of any exception to it will destabilise the value we currently accord to human life (1999, p. 205). McCall Smith does not make it explicit, although we can easily recognize in this justification a version of the more familiar slippery slope argument, and it seems that it is of the more dubious apocalyptic type: with the legalisation of assisted suicide we would start slipping into a society that radically transforms its moral and legal framework to a point whereby human life is not respected, where the strength of the old prohibition is diminished and morally unacceptable practices of killing start to flourish without the possibility of controlling them (van der Burg, 1991, p. 43). In its generality this would appear to be a strong argument. However, we have some reasons to think that his answer remains unsatisfactory until he gives further justification that the cautious admittance of another exception to the firm rule of the prohibition of killing would lead us to a worse place than

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the one we are at now. This leads us to our second problem, namely, that McCall Smith seems to overlook another relevant context in the euthanasia debate besides the moral and legal one. This is what we referred to previously as the context of current medical practice. In the concluding lines of his paper he refers to doctors thus: [They] know full well what they are doing when they are increasing a dose of diamorphine, but they need not to describe their act, to themselves or to others, as an act of killing. This approach has been described as hypocritical, but if it accords with a moral distinction which is meaningful for doctors, then why should they be denied the comfort it affords them (McCall Smith, 1999, p. 206)? According to McCall Smith: it is not medical opinion which is pressing for changes in the law (1999, p. 200). This seems to suggest that the physicians themselves are satisfied with the current law and that they would be eager to situate themselves in the middle ground; ergo, they are not among those who are trying to bring about changes in the law. He does not cite any empirical findings that might support this opinion; nevertheless, current empirical findingsthat focus on the question of physicians attitudes concerning euthanasiademonstrate that many doctors would choose to legalize euthanasia (Meier, Emmons and Wallenstein et al., 1998; Vincent, 1999; Peretti-Watel, Bendiane and Pegliasco et al., 2003). We have good reason to think that it is not satisfaction with the current law that renders physicians silent on the issue, but rather the complexities and public misunderstandings surrounding the issue of euthanasia, and the controversial figures who have gained great publicity in recent years, like Dr. Kevorkian in the United States and Mr. Shipman in England. McCall Smiths slippery slope worries, in the light of current medical practice, seem to be misplaced when surprisingly large numbers of doctors are prepared to confess in private that they have participated in active voluntary euthanasia (Zinn, 2001, p. 1268). In a British study, when 424 doctors were asked: Have you ever taken active steps to bring about the death of a patient who asked you to do so?, 9% said that they had (Ward and Tate, 1994, p. 1332). This gives us reason enough to suggest that current medical practice concerning end-of-life decisions differs from McCall Smiths expectations. It is certain that physician assisted suicide takes place as part of health care. Moreover, these findings suggest that the law regulating the issue is not satisfactory, not just because it is inconsistent from a moral point of view, but because it is inconsistent and uncertain within the legal context as well.

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Legal Uncertainties Deliberately taking the life of another person constitutes murder. Thus, any doctor who practices voluntary euthanasia or mercy killing, even with humane motives, can be charged with murder. Following Lord Mustills words: mercy killing by active means is murderthat the doctors motives are kindly will for some, although not for all, transform the moral quality of his act, but this makes no difference in law (AirDale NHS Trust v Bland, 1993, 1 All ER 821, p. 850). Whatever the circumstances are, active euthanasia is murder according to English law. The only exception to this is justified by the doctrine of double effect (DDE), that teaches us that an act which produces a bad effect is nevertheless morally permissible if: the action is good in itself; the intention is solely to produce the good effect; the good effect is not produced through the bad effect; and there is sufficient reason to permit the bad effect. This is used in justification when adequate painmanagement may hasten a patients death. The doctrine itself poses several objections that indicate the problematic character of its legal usage (Quill, Dresser and Brock, 1997). It overtly relies on the intention of an act, which in a clinical setting could be highly ambiguous (Quill, 1993). The rule regarding DDE was spelt out in the case of Dr. Adams; in his summing up to the jury, Devlin J. stated: If the first purpose of medicinethe restoration of healthcould no longer be achieved, there was still much for the doctor to do and he was entitled to do all that was proper and necessary to relieve pain and suffering even if the measures he took might incidentally shorten life by hours or perhaps even longer. The doctor who decided whether or not to administer the drug could not do his job, if he were thinking in terms of hours or months of life. Dr. Adams defence was that the treatment was designed to promote comfort, and if it was the right and proper treatment, the fact that it shortened life did not convict him of murder (R. v Adams, 1957, Crim.L.R., p. 773). His ruling is endorsed in the case of Anthony Bland, as described below. Although the legal application of the doctrine is not crystal clear in its meaning, as he referred differently as to the limits of shorting life, by hours or months, it is applicable only in cases of terminally ill patients as part of palliative care (Brazier, 2003, p. 441). The law would also be clearer had the House of Lords in Woolina non-medical casenot ruled that where the consequence of an act is foreseen as virtually certain, that consequence is intended (R. v Woolin [1997], 4 All ER 103). Mr. Woolin killed his baby son in a burst of anger, by throwing him on a hard surface. He acknowledged later that the baby had hit the floor hard, but he didnt think that it might kill him, although he accepted that there was a risk of injury. The trial judge told

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the jury that they might infer intention if they were satisfied that Mr. Woolin appreciated the substantial risk of serious harm by throwing the baby. He was convicted of murder. It became difficult to reconcile the Woolin case concept of intention with the application of DDE. The conflation of foresight and intention has already forced the Court of Appeal in the unique case of Re A into nuanced speculations to rescue doctors who separated conjoined twins, knowing that the weaker would die from a potential charge of murder. Questions and ambiguities surround suicide; while it is decriminalised, it is still not lawful, in so far as there is no right to suicide. Since 1961as McCall Smith remarked before the flowering of the autonomy stressing philosophyit has no longer been a criminal offence to commit suicide, as was established in the Suicide Act of that year. However, as is stated in the Act: A person who aids, abets, counsels or procures the suicide of another, or an attempt to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years (s.2). Aiding suicide by the impersonal distribution of advice and information is not likely to attract legal sanctions, as was stated in Attorney-General v Able (1984, QB 795).1 The 1961 Act does not define what suicide is; thus, in the light of section 2 this could cause some uncertainties. As Freeman puts it: If refusal of treatment amounts to suicide, then a doctor who accedes to such a request might be said to be aiding suicide. And, since to insist upon treatment against a patients wishes amounts to battery, doctors would be damned if they did not and damned if they did (2002, p. 270). Refusal of treatment by a competent patient is accepted, as the individuals right to self-determination became the determining factor in any situation of therapeutic conflict (Mason, McCall Smith and Laurie, 2002). The Court of Appeal in Re T (1992, All ER 465) made it clear that a mentally competent adult patient enjoys an absolute right to refuse further treatment even when refusing treatment means certain death (see also: Re MB [1997] 2 FLR 426 (1997) 38 BMLR 175 and Ms B v An NHS Hospital Trust [2002] EWHC 429). The refusal of treatment is not suicide; as Thorpe J. stated: the refusal of nutrition and medical treatment in the exercise of the right of selfdetermination does not constitute an act of suicide (Secretary of the State for Home Department v Robb, 1995, 1 All ER 677), and as Lord Goff puts it in Bland: there is no question of the patient having committed suicide, nor therefore of the doctor having aided or abetted him in so doing. It is simply that the patient has, as he is entitled to do, declined to consent to treatment which might or could have the effect of prolonging his life, and the doctor has, in accordance with his duty, complied with his patients wishes (Airdale NHS Trust v Bland, 1993, AC 789).

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Although there existed no explicit argument behind this that might support the statement that the refusal of treatment does not constitute suicide, the underlying premise could be that suicide requires an act and can not be a result of an omission (Kennedy, 1976, p. 266, quoted in Freeman, 2002). In her book on euthanasia, Otlowski questions this position by pointing out: if a person deliberately chooses not to move from the path of an avalanche, or refuses to leave a burning building, it is arguable that the person is, in effect, committing suicide (1997, p. 63). Thus, suicide could be committed by omission also, as Otlowski clearly argues: The characterisation of a patients refusal of treatment as falling outside the realm of suicide on the grounds that the patient lacks a specific intent to die and further, that refusal of treatment does not involve a selfinitiated condition, lacks substance and results in an undesirable distortion of legal principles (p. 69). In practical terms, a patient might have a variety of reasons for refusing treatment, for example: there is no worthwhile treatment for his or her medical condition; that treatment is disproportionate to what it can achieve; refusal with the intention of making a political statement; attention seeking, and with the intention of achieving death. According to the law, in the case of suicidal intent, it is not required on the part of a doctor to respect the wish of the patient to withhold or withdraw treatment. Is it to be realistically expected that a doctor should always be certain what the intent of the patient is in refusing treatment? Can it be clearly evaluated? What was Ms. Bs intent? Cases: Pretty, Bland and Ms. B Diane Pretty was suffering from the last stages of motor neurone disease, was losing all ability to use her muscles, could barely speak, or swallow and had to be fed by tube. The Suicide Act of 1961 [section 2(4)] requires the consent of the Director of Public Prosecution (DPP); he has discretion which must be exercised in accordance with the law (Case of Pretty v United Kingdom, 2002, 1 FLR 268, p. 316). This is what the husband of Diane Pretty was asking for: a guarantee from the DPP, that if he assisted in his wifes suicide he would not be prosecuted. The DPP refused to give such an assurance, so she asked for a judicial review. Her application failed before the Divisional Court (2001, All ER (D) 251), as did her subsequent appeal to the House of Lords (2002, 1 All ER 1, HL), so she took her case to Strasbourg. Mrs. Pretty grounded her challenge upon s.2 of the Suicide Act in the European Convention on Human Rights. She argued that a blanket

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prohibition of assisted suicide contravened her human rights. She relied on five articles, 2, 3, 8, 9 and 14. The Divisional Court was moved by her argument based upon Article 8 (2001, 63 B.M.L.R. 1), and the European Court of Human Rights accepted that her right for respect for her private life was being interfered with (paragraph 67), though it considered this justified by Article 8(2) (paragraph 78). Both the House of Lords and the European Court rejected her other challenges. For reasons of brevity we shall focus upon articles 2 and 8, since these have the most relevance regarding our question. The ECHR Article 2 states that: Everyones right to life shall be protected by the law. Lord Bingham regarded Article 2 as embodying the traditional doctrine of the sanctity of life, as he argues: Whatever the benefits whichattach to voluntary euthanasia, suicide, physician-assisted suicide, and suicide assisted without the intervention of a physician, these are not benefits which derive protection from an Article framed to protect the sanctity of life (Case of Pretty v United Kingdom, 2002, p. 273). It seemed to be too radical a step to interpret as a right to die. The Convention, it should be remembered, was drafted against the background of Nazism and the Holocaust. According to Lord Hope, Article 2 does not constitute a right to life, nor a right to self-determinationas was interpreted by Mrs. Pretty (p. 268)and it does not state that: an individual has a right to choose death rather than life (p. 306). Article 8 provides for the respect of private life and was widely interpreted as means of protecting a range of individual interests. Lord Bingham said that: any attempt to base a right to die on Article 8 founders exactly the same objection as the attempt based on Article 2, namely, that the alleged right would extinguish the very benefit on which it is supposedly based (p. 280). But for whose benefit would that be? For Diane Pretty, it would have been her last opportunity to exercise her agency, to make a decision about the manner of living and dying. The manner of ones death should not be separated from the life cycle of a given individual. Maybe it is possible to consider death as being an event that falls outside the life of the individual, but the dying process evidently falls within that of life. Therefore, if Lord Bingham accepts that Article 8 protects the physical, moral and psychological integrity of the individual, including rights over the individuals own body (p. 280), then an individual should not be deprived of such a basic decision. Lord Hope seems to accept this argument, although he avoids drawing the conclusion that there is a positive obligation to give

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effect to her wish to end her own life by means of assisted suicide. According to him, this would stretch the meaning of respect for private life too far (p. 310). All three of the Lords who pronounced on the issue agreed that even if Mrs. Prettys claim accorded with Article 8(1), it would fail under Article 8(2). This allows for interference by a public authority with the Article 8(1) right in accordance with the law if this is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing 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 freedom of others. The disastrous consequence they identify is abuse, a kind of slippery slope worry, without making it explicit. For Lord Steyn the prohibition on assisted suicide is within the range of discretion of parliament to strike the balance between the interests of the community and the rights of individuals (p. 299). Lord Hope was also concerned with the need to avoid abuse and to protect the weak and the vulnerable (p. 310). The slippery slope worry and the protection of the weak and the vulnerable could not attain such a significant position in the jurisdiction in the Bland case, where the judges had to decide upon questions of life and death as in the case of Pretty. Pretty was able to indicate what she wanted, but the law prevented her husband from doing anything about it. Tony Bland could not exercise any such autonomy, and the law permitted the act that led to his death. Are we not misplacing the Rubicon when our attention is not focused upon the differences between different forms of voluntary and in- or non-voluntary ways of dying? Anthony Bland suffered crush injuries at Hillsborough football stadium that resulted in catastrophic and irreversible damage to his brain. In medical terminology he was in persistent vegetative state (PVS). He had existed in this condition for two years when, with the concurrence of his family, the hospital applied for a declaration that they might legally discontinue artificial feeding and hydrating. The House of Lords unanimously granted the declaration. Bland was not competent to decide and his family could not be appointed as guardians of their adult son. As in previous medical cases concerning incompetent patients, it had to be decided what was in his best interest (F. v West Berkshire Health Authority, 1989, 2 All ER 545). Lord Goff, Lord Keith and Lord Lowrys conclusion was supported by medical opinion as well as professional guidelines on diagnosis and confirmation of PVS. They argued that artificial feeding constitutes treatment and a responsible body of medical opinion supports the withdrawal of treatment in cases of PVS. However, the case was not without some difficulties, as Lord Mustill expressed: The distressing truth, which must not be shirked, is that

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the proposed conduct is not in the best interests of Anthony Bland, for he has no best interests of any kind (Quill, 1993, p. 894). Thus, treatment not in his interests could and must be withdrawn. There are two problematic aspects of the Bland case that have some relevance to our argument. One is that the way the judges described the role of doctors in Blands death is too speculative to be acceptable both for the proponents and the opponents of the legalisation of euthanasia (Finnis, 1993; Keown, 1997). As Brazier puts it: The legerdemain by which their Lordships classified removal of a feeding tube as an omission not an act provokes charges of covert legalization of euthanasia (2003, p. 450). The other aspect has to do with the slippery slope worries thatas we have seenplayed a crucial role in the Pretty case. Although the judges recognized the dangers inherent in their decision, they also saw the possibility for controlling this end-of-life practice. Theyve made certain safeguards and restrictions for this practice. If it is possible to make restrictions and safeguards that enable us to protect the weak and the vulnerable, why is it not possible in cases of competent patients, like that of Mrs. Pretty? The case of Ms. B is that of a woman who suffered a haemorrhage in the spinal column of her neck (Re B, 2002, 2 All ER 449). She was paralysed from the neck down and could only breathe with a ventilator. Recovery was unlikely and rehabilitation programmes were not acceptable for her. She did not want to survive in such a condition, so she instructed her doctors to switch off the ventilator. The doctors refused her request on the grounds that she was not competent. She asked for a judicial review and was held to be competent. Since Re T the Court of Appeal has made it explicit that a mentally competent adult patient enjoys an absolute right to refuse further treatment even where refusing treatment means certain death. The important criteria is the evidence that refusal of treatment is free and informed (Re T, 1992, 4 All ER 465, CA, pp. 93-95). However, Mrs. Pretty was in a more perilous condition than Ms. B and was much closer to death, but it was Ms. Bs wishes, who was not in a terminal condition, that were acceded to because she wanted discontinuation of treatment, and not Mrs. Prettys, because she wanted active assistance with her decision to die. Conclusion On suicide the law is unclear, on its relationship to other end-of-life decisions it is confused. Under current English law concerning the issue of euthanasia the decisive role given to the passive/active distinction and the doctrine of double effect is highly questionable. The potential for abuse is

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probably the greatest concern in the euthanasia debate (van der Maas et al., 1991, p. 669).2 Certainly, concern about abuse played a significant role in the reasoning of the Lords and the European Court in the Pretty case, and in Washington v Glucksberg in the USA Supreme Court (1997, 138 L.Ed. 772, p. 827). But we should not overlook the fact that abuse occurs currently also. Certainly we need safeguards, and these would best work within a clear legal framework. The worries of McCall Smiththat by making a special case in the law of homicide the strength and authority of the law would be weakenedmight well be misplaced. There are other means by which the law might lose its strength and authority. Inconsistency and uncertainty are amongst them. A descent towards an undesirable milieu may well evolve even in the absence of legal changes in a changing world. Acknowledgement The research for writing this paper has been supported by the Hungarian Science and Research Fund, OTKA n.042677. NOTES
1

The court was asked to declare that it was an offence for the Voluntary Euthanasia Society to sell a booklet to its members with the content of a detailed suicide manual. This argument is usually based on the findings of a 1991 Dutch study of medical end-of-life decisions (the so-called Remmelink Report): van der Maas PJ et al. (1991). REFERENCES

___. (2003). BMJ, News, 327, November 22, p.1186. ___. (2005). BMJ, News, 330, April 09, p. 807. Airdale NHS Trust v Bland (1993) 1 All ER 821; (1993) AC 789. Attorney General v Able and Others (1984) QB 795. B v NHS Trust (2002) 2 All ER 449. Brazier, M. (2003). Medicine, patients and the law, third edition. London: Penguin Books. F. v West Berkshire Health Authority (1989) 2 All ER 545. Finnis, J.F. (1993). Bland: crossing the rubicon. Law Quaterly Review, 109, 329-337. Freeman, F. (2002). Denying death its dominion: thoughts on the Diane Pretty case. Medical Law Review, 10 (3), 245-270.

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