Composición de Grupo Argos

7.3.1 Introduction

The scope of the PDE applied to life-shortening treatment as a legal doctrine is uncertain due to the undeveloped state of the law (discussed in 7.3.2), but encompasses both lack of an intention to kill (7.3.3) and administration of life-shortening ‘treatment’ (7.3.4). The theorised PDE position, as developed above, is reflected in English law on life-shortening treatment,

is reflected in law as a matter of intention, but that the influence of patient autonomy has exerted a degree of indirect influence over the doctrine as regards the treatment aspect of the doctrine (7.3.5).

The relevance of life-shortening treatment under the PDE to the idea of a right to ‘assisted death’ was vividly illustrated by the case of Annie Lindsell, who suffered from motor neurone disease. Lindsell initiated proceedings before the High Court, with only weeks to live, in order to clarify that her doctor should be permitted to end her life by administering diamorphine in quantities that would inevitably shorten it in order to avoid the distress caused by pain and by her fear of suffocation (BBC 2000). She withdrew her case after the High Court confirmed that her doctor’s action would be permissible. Annie Lindsell’s settled determination to commit suicide on the basis of anticipated suffering meant that her claim represents an unusual application of the PDE doctrine, which, as is discussed below, generally operates discretely from a clearly signalled suicidal desire (see also Huxtable 2007, 103, 105).

7.3.2 Background to the legal doctrine

Before developing the analysis of English law, it is useful to consider briefly certain circumstantial difficulties in the English regulation of life-shortening treatment in order to understand why English law has developed as it has. The courts technically consider practices of ‘lethal treatment’ to be homicide, but the lack of prosecutions has meant that the law is undeveloped (eg Huxtable 2007, 94ff.). The prospect of bringing serious criminal charges against (often) apparently compassionate professionals, the requirement of relying on a criminal process, and the common law nature of the legal position on murder in England, are all cited as reasons for the slow pace of legal change and for the paucity of firm precedent addressing the distinction between life-shortening treatment and murder (eg Huxtable 2007, 86ff.). Less justifiably, the courts are also accused of bias towards the medical profession (eg Huxtable 2007, 86ff.; Price 2006, 620ff.). The result is that prosecutorial behaviour does not necessarily uphold even the uncertain limitations of the legal doctrine of life-shortening treatment set out below, and there is only a limited and emerging awareness that certain life-shortening behaviours of doctors exist as social phenomena relevant to enabled suicide.

The English legal position is characterised by a reluctance to engage with the phenomenon of life-shortening treatment, especially as regards suicidal patients, despite the fact that in the absence of legal assisted suicide there is a case for open acceptance of such treatment in narrow circumstances. The vagaries of the principle of double effect as a basis for doctors’

actions in non-curative palliative care, and reliance on terms such as ‘primary intention,’ are deemed to create a risk to patients who are receiving such care (Commission on Assisted Dying 2011, 51, 287). Furthermore, the paucity of case-law leaves the precise ambit of the doctrine uncertain. Finally the factual basis of the judgement that the use of sedatives should hasten death is considered to be questionable (Sykes and Thorns 2003; Pattinson 2014, 535).

The problem of theoretical, legal and practical uncertainty is not limited to patients who seek to rely on the legal rule on life-shortening treatment to enable their suicide, such as Annie Lindsell. The doctrine also creates a danger to those whom it should protect, since its imprecision means that it is susceptible to abuse, as demonstrated by the Shipman case (Shipman Inquiry 2003). Harold Shipman was manifestly unable to provide any cloak for his actions, but it would not have been difficult to provide such a cloak, especially in relation to a willing, but vulnerable, patient. As discussed below, the institutional setting within which treatment of a terminal condition of extreme suffering by a doctor takes place, and the existence of a treatment relationship, are potentially relevant safeguards protecting suicidal potentially incompetent agents (PIAs). Beyond these requirements the doctrine operates in an unpredictable way, with potentially disastrous results.

7.3.3 Intending to shorten life

The legal basis for the PDE in England stems from Judge Devlin’s direction to the jury in R v Adams:⁴

If the first purpose of medicine, the restoration of health, can no longer be achieved there is still much for a doctor to do, and he is entitled to do all that is proper and necessary to relieve pain and suffering, even if the measures he

takes may incidentally shorten human life.⁵

Judge Devlin, the presiding judge in R v Adams,⁶was a Catholic and an advocate of a sanctity of life-based double-effect principle as set out by St Augustine and Aquinas, which is the basis of the theorised approach considered above (7.2; see also Finnis 1995, 24-25).

The principle of double effect as applied to life-shortening treatment requires a narrower conception of the intention to kill than the one accepted as governing intention in general in English law (eg Patiinson 2014, 14-007). The generally accepted authoritative statement of intention, as is well established, was that made in R v Woollin.⁷ In that case the House of Lords held that subjective foresight of a virtually certain consequence of an action is a form of intention.⁸ The incompatibility of the conception of intent in Woollin with the PDE basis for life-shortening treatment is widely accepted (eg Keown 2002, 27-29).

Keown has argued that the decision in Woollin⁹ placed one category of potential defendants, doctors, in an invidious position (2002, 27-29). Keown regards Woollin as wrongly decided, since it ignores the PDE in R v Adams¹⁰which had been confirmed shortly before that case by the House of Lords in Bland¹¹(Keown 2002, 29). If a doctor understands that various actions taken as part of non-curative palliative care are virtually certain to accelerate death, then under Woollin the doctor would intend that death should result (Keown 2002, 27-29), as has been officially recognised (eg by Ward LJ in Re A),¹² but not resolved. Reconciliation between the two legal rules could be effected on the basis of the vagaries of jury trial. The direction by the judge in a case of intent as regards foresight of virtual certainty is that they may find intention, but they are not required to do so, and obviously the failure of a jury to

5Ibid.

6Ibid.

7R v Woollin [1998] UKHL 28.

8Ibid at 98-97; see also R v Nedrick [1986] 1 WLR 1025 at 1028 per Lord Lane CJ ‘Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to find the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case.’ The decision is one for the jury to be reached upon a consideration of all the evidence.

9 9R v Woollin [1998] UKHL 28.

10R v Adams [1957] Crim L R 773.

11Airedale NHS Trust v Bland [1993] AC 789.

12Re A [2001] 1 FLR 1[56].

infer Woollin intention cannot be the basis for setting aside a jury verdict (Norrie 1999;

Pattinson 2014, 499; Stark 2013, 156-57). It is deemed unlikely that the PDE will be overturned as a rule of English law, but this possibility cannot be ruled out (Huxtable 2007, 87ff.).

7.3.4 Pain-relief and life-shortening treatment performed by a doctor

The most straightforward aspect of the PDE doctrine applied to life-shortening treatment requires that there must be a course of treatment provided by a doctor. If a ‘patient’ was killed by a doctor in other circumstances then the legal rule does not apply. This was the position in the infamous case of Harold Shipman who killed a large number of his patients by administering sedatives in a sufficient dosage to suppress respiration where there was, as regards a number of victims, no evidence that this was part of normal medical practice directed towards relieving pain or otherwise.¹³

Life-shortening treatment is, by definition, medical care addressed towards relief of pain required due to a recognised medical condition of the patient.¹⁴ The necessity that the doctor should prescribe a course of treatment is demonstrated by R v Cox,¹⁵ which is the only case since Adams in which an English doctor has been charged successfully with attempted murder after a request for pain-relieving but lethal treatment by a patient. In this highly unusual case Dr Nigel Cox recorded in hospital logs that he administered an injection of potassium chloride to a ‘patient’,¹⁶ in a form that had no recognised therapeutic purpose (as opposed to a barbiturate which could plausibly be associated with pain relief). Dr Cox clearly desired to relieve the extreme suffering of the patient who was in great pain and clearly and distinctly requested to be relieved of this suffering in numerous conversations with Dr Cox.¹⁷ However, the lack of a therapeutic purpose as within normal palliative treatment evident from the administration of the pain-relieving treatment was found by the judge to prevent the

13See eg Shipman Inquiry Trial Transcript 1999, Day 39.

14Airedale NHS Trust v Bland [1993] AC 789 at865.

issuing of a direction based on the PDE doctrine (which was issued in Adams);¹⁸therefore Dr Cox’s actions were described in the jury direction as intentional killing. The jury had little choice but to convict the doctor of attempted murder, which they did, reluctantly (Biggs 1996, 881).¹⁹

The conception of ‘treatment’ in Cox provides the basis for the conception of ‘treatment’ by the GMC. This is evident from various malpractice cases, such as that of Dr Munro. In Munro’s case the drug pancuronium, which also had no recognised therapeutic value in the circumstances, although it was, crucially, considered to be capable of relieving pain, was administered at 23 times the normal dose to one dying infant, at the request of the parents, leading directly to respiratory failure (Goodman 2010, 567-8). Dr Munro admitted in the hearing that he had used the drug previously on another terminally ill baby. The drug was administered to two infants at Aberdeen Maternity Hospital (Goodman 2010). Dr Munro was cleared of malpractice.

7.3.5 Consent to life-shortening treatment and suicide

For action to amount to ‘treatment’ it is implied that the doctor and patient act within a normal treatment relationship. This implies that the patient has consented to that course of treatment. In 2013 the General Medical Council issued brief guidance to doctors concerning informed consent and ‘end of life decisions,’ which reaffirmed the responsibility of doctors to respect and support decisions of patients, including their informed consent to life-shortening treatment (GMC 2013, paras 1-4). The statement referred, for the first time, to the relevance of such treatment to assisting suicide, although it was merely stated, opaquely, that assisted suicide remains unlawful (2013, para 5). It is clear that the new ‘patient autonomy’ paradigm which is broadly recognised as a dominant force in modern medical law (Billings 2011) means that life-shortening treatments are controlled by the patient (if he is competent) and he can choose such treatments if he is offered them as part of palliative care. This is the case even if he desires to die. The facilitation of such a desire is contrary to the theorised sanctity of life-based PDE applied to life-shortening treatment considered above (Keown 2012,

18R v Adams [1957] Crim L R 773.

19R v Cox (1992) unreported 18^thSeptember 1991; Airedale NHS Trust v Bland [1993] AC 789 at 865.