DEATH

Most people die naturally as the result of organ failure or disease; others suffer accidental deaths and yet others die as the result of the action or inaction of themselves or of others. Modern developments in medicine have given us the opportunity to control the time and manner of our dying to an extent which would have been unimaginable to our grandparents, and these developments have also inevitably thrown up hitherto undreamt of legal, sociological and philosophical problems. Indeed, modern medical developments have blurred the distinction between life and death. For our grandparents death occurred when the heart ceased to beat and the lungs to breathe, but today heartbeat, breathing and body nourishment can be artificially sustained even after the brain has died. Is a person in such a condition alive or dead?

There is little of extraordinary note to be said about the legal aspects of dying naturally after one’s allotted span. When interference with the course of nature occurs, the legal consequences for all concerned differ considerably according to the circumstances of each case and what form of interference takes place, and there is the question of whether or not the interference should or should not take place. This book is not intended to cover sociological or philosophical matters. It is intended to be a brief practical guide to point the layman along the road to what he can, cannot and should do and indicate how he might do it.

CAN ONE CHOOSE THE TIME OR MANNER OF ONE’S DEATH?

Until the passing of the 1961 Suicide Act suicide and attempted suicide were criminal offences in the United Kingdom, although there was not much that could be done about it if it was successful. Today suicide is no longer a criminal offence, but life insurance policies will not pay out in such cases.

Although suicide is not a criminal offence, assisting suicide is. The Director of Public Prosecutions may seek the imprisonment for up to 14 years of anyone who aids, abets, counsels or procures the suicide of another or an attempt by another to commit suicide. No matter how heart-rending the circumstances, euthanasia (sometimes called mercy killing) is also illegal and because of the rule that no one can profit financially from their own crime, anyone who engages in mercy killing not only risks imprisonment but will be unable to inherit from the deceased’s estate.

The positive act of killing without the deceased’s consent is, of course, always illegal under English law, but there is generally no obligation to act to attempt to save a life unless one has expressly or impliedly undertaken such an obligation, as in the case of, for example, a doctor in relation to his patient. If the obligation has been undertaken it cannot legally be shed without the proper consent of the person in respect of whom it has been undertaken, unless one makes arrangements for another to undertake it. For a doctor to withdraw treatment with the patient’s consent is not a criminal or a civil offence, but there is a distinction between treatment and basic nursing care designed to make the patient as comfortable as possible, such as washing. Basic nursing care cannot be withdrawn, even with the patient’s consent.

In cases of terminal illness there is sometimes a narrow distinction between homicide or assisting suicide and the withdrawal of medical treatment; the one involves the introduction of an external element which causes death and the other allows causes which are already present in the body to cause death. In cases of doubt the guidance of a court can be sought in advance.

It is a principle of English law that, as one judge has put it, ‘a mentally competent patient has an absolute right to consent or refuse consent to medical treatment for any reason, rational or irrational, or for no reason at all, even where that decision may lead to his or her own death’. A person is presumed to be mentally competent to take the decision and the onus of proving a lack of mental capacity is on those who claim that the capacity does not exist. As the same judge has said, ‘A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or refuse treatment’.

The question is not one of the right to self-determination but what is in the patient’s best interest, looked at subjectively from the patient’s point of view, and if the patient is competent, he is the person who is entitled to decide the question. For others, such as doctors, to override the patient’s wishes is ‘benevolent paternalism’ and an assault. For this reason, although there will be no relevant Act of Parliament until the Mental Capacity Act 2005 is eventually brought into force (probably in April 2007), the Common Law recognises living wills or advance directives as they are sometimes called.

LIVING WILLS

A living will, sometimes called an advance directive, is a document which is made by a mentally competent person aged 18 or over and which sets out what medical treatment that person wishes, or does not wish, to undergo in specified circumstances. Living wills are useful in that they may be relied upon if at a future date the maker loses the powers of making decisions or communication, e.g. as a result of falling into a coma or suffering a stroke. They can assist relatives and doctors to achieve the correct decision and save them from much worry about what the patient would wish when agonising decisions have to be made.

To be valid a living will must state the maker’s true wishes and accordingly it must be made voluntarily, without pressure, influence or encouragement by another person. It must be made by a person who has the required mental capacity. A person has sufficient mental capacity to make a living will if he is fully aware of the relevant circumstances, treatments and their implications and can:

• understand the relevant information;
• retain the relevant information;
• weigh the relevant information in the balance so as to arrive at a proper choice; and
• communicate the decision made.

The person making the will must not be rendered mentally incapable of reaching a balanced judgement when the will is made by reason of illness, mental distress or anything else. A person is presumed to be mentally competent to take the decision and the onus of proving a lack of mental capacity is on those who claim that the capacity does not exist.

The living will should clearly state the nature of the treatment and circumstances in which it is to be acted upon and that the nature of the treatment, the circumstances in which it is to be acted upon and the likely effect of the treatment are fully understood by the person making it.

Although there is no Common Law requirement that a living will must be made in writing, in practice it will usually be impossible to give satisfactory proof of the terms of the will and its existence unless it is in writing. It is advisable that any advance directive should be in writing, dated and signed and witnessed by at least one independent witness who will have nothing to gain from the death. The Act will provide that an advance decision must be made in accordance with the formalities set out in the Act if it is to be an effective refusal of ‘life-sustaining treatment’.

Life-sustaining treatment is defined by the Act as ‘treatment that in the view of the person providing health care for the person concerned is necessary to sustain life’.

When the Act comes into force it will only cover refusal of treatment and will provide that a person over the age of 18, with the requisite mental capacity, will be able to make what in the wording of the Act is called ‘an advance decision’ to refuse life-sustaining treatment: but only if the refusal is:

• made in a document which is signed by the maker, or someone on his behalf and at his direction;
• witnessed in his presence; and
• states that it is to apply to a treatment even when life is at risk.

There will be a rebuttable presumption that a person has mental capacity, but he has to be able to understand and retain the information relevant to the decision, to use or weigh up the information as part of the process of making the decision and to communicate the decision. If he is unable to fulfil these criteria the person will be considered not to have the requisite mental capacity.

When the Act is in force it will be possible to make a lasting power of attorney to appoint a proxy to make health-care decisions on one’s behalf in the event of future incapacity, something which is not possible at the present time.

The Act provides that no life assurance policy shall be invalidated by a physician having assisted a qualifying person to die in accordance with the Act.

Presumably when the Act is passed and comes into force it will be in addition to the Common Law on the subject, in so far as it does not revoke the existing Common Law.

Although a mentally competent adult can refuse a medical treatment by making a living will, he has no legal right to demand a particular treatment; this is in accordance with the doctor’s obligation to do what he considers is in the best interest of his patient and his clinical needs. A patient’s wish for a particular treatment as expressed in a living will is to be taken into account by the doctor but it is not conclusive and, ultimately, the clinical decision as to what treatment is in the best interest of the patient is to be made by the doctor and not by the patient. Although the doctor makes the decision as to what is in the patient’s best interest, he must do so looking at the matter from the particular patient’s point of view.

A living will must not have been revoked, even orally or by implication (for example by a change in circumstances), by the time the question of carrying out the treatment arises and, if tested in a court, the court will take into account, but not necessarily follow, the patient’s orally expressed wishes, even if the patient is under the age of 18.

If a living will is made it should be frequently reviewed because one’s wishes may change in the light of advances in medical science, and unless the maker knows the changes it cannot be said that he is fully aware of the relevant circumstances, treatment and their implications. Care should be taken to ensure that the will and any changes to it are known to the medical practitioner, e.g. by lodging it with him. Discussing the will with the family members could lead to suggestions of undue influence having been applied by them.

A specimen form of living will is included in Appendix 1.

CAPACITY TO DECIDE

Interesting legal questions arise when one does not make an uninfluenced, informed decision to refuse or request treatment to shorten or extend the natural length of one’s life or, when one is adjudged not to have sufficient mental capacity to make such a decision. Similar problems arise when, having such capacity and having made the decision, one lacks the physical ability to carry the decision out.

As stated above, a doctor who has in his care a terminally ill but mentally competent patient, whom the doctor treats without the patient’s consent, commits a civil and a criminal assault upon the patient, but what constitutes treatment and what is the position if the patient is not in a position to make a proper decision and has not previously given a proper advance directive which remains unchanged on the subject?

Treatment must be distinguished from a withdrawal of basic care such as washing and feeding by spoon as opposed to artificial feeding. Withdrawal of basic care is not permitted; withdrawal of treatment is sometimes permitted.

ACTION IN THE PATIENT’S BEST INTEREST

In a case in which there is no proper consent or refusal and the patient is incapable of giving any, the doctor must do what he considers to be in the best interest of the patient in accordance with a responsible and competent body of relevant professional opinion. This can include innovative treatment not previously tried on human beings if there is evidence from responsible medical opinion that does not reject the treatment. He must ask what can be done for the patient and will it improve the patient’s lot? There is a very strong legal presumption that it is in the patient’s best interest to preserve his life, but in this context the law does not consider that the prolongation of life is sacrosanct. Other factors such as the patient’s assumed wishes, his dignity, mental, physical and spiritual welfare and how tolerable the prolongation of the life is, and will be, are all factors to be weighed in the balance. These factors are only examples and not exclusive. Moreover, the doctor must look at the matter from the point of view of the particular patient.

In the case of an adult patient it is for the doctor to make an informed decision in the light of general medical opinion as to what the patient’s best interest is, although in cases of any doubt he should seek advice from a court. If the patient is a child or a ward of court it is for the court to decide, but the child’s views and the parents’ views will usually be taken into consideration. In neither case is it for a carer or member of the family to decide what is in the patient’s best interest.

For a doctor to switch off a life-support machine or withhold artificial feeding or other treatment from an insensate terminally ill patient who has left no valid instructions is not a criminal or civil offence if the doctor considers it is in the patient’s best interest. This is because in withdrawing the treatment the doctor is fulfilling his duty to act in the patient’s best interest and not introducing an external element, but rather ceasing to treat (omission not commission) and allowing the patient to die of the pre-existing condition. It is not the withdrawal of the support system but the pre-existing condition which kills. A doctor who uses drugs to reduce a terminally ill patient’s suffering in the belief that to do so is in the patient’s best interest and incidentally hastens the moment of death is legally justified in doing so, but administering a drug with the primary purpose of ending a patient’s life is unlawful, whether or not it is the patient’s wish.

IS THERE A RIGHT TO DIE?

Withdrawal of or failure to supply medical treatment with the patient’s proper consent or at the patient’s request is not to be confused with the patient having a right to die, even if death will inevitably follow. The European Court has confirmed in the case of Pretty v The United Kingdom that there is no general right to die as such in English law. If the patient is mentally competent but physically incapable, a general right to die would involve the assistance of others in the withdrawal of basic care or the introduction of a positive element with the primary intention of causing death, both of which are unlawful euthanasia. Even the Assisted Dying for the Terminally Ill Bill, presently under consideration by Parliament, only contemplates the provision of the means for the patient to take his own life and not the active taking of life by another. Hence if the patient is physically incapable of taking his own life the bill will not assist.

INTENTIONALLY AND ACCIDENTALLY CAUSING DEATH

For a doctor to withdraw or fail to supply medical treatment with the patient’s proper consent or at the patient’s request is not the same thing as for a third party to surreptitiously disconnect a life-support system: the doctor is allowing the patient to die from the pre-existing condition, but the third party is preventing the doctor from prolonging the patient’s life.

To cause another’s death intentionally and without lawful justification constitutes murder, or if the death is caused without intention but with gross negligence, manslaughter, and in either case there is a civil assault giving a right to damages which survives the death.

If the death of another is caused unintentionally and without negligence it is accidental death, for which there is no civil or criminal liability, unless the act which caused the death was in breach of a duty imposed upon the perpetrator by statute, in which case there are both criminal and civil liabilities. To cause the death of another by an act which is not gross negligence, but which could be foreseen to cause harm but not necessarily death, is a civil offence which gives rise to a claim for damages.

FAILURE TO ASSIST

A failure to assist another which results in death does not incur a liability for damages or criminal liability, unless the person who fails to act has undertaken a duty of care to the person who dies, e.g. as in the doctor and patient relationship. The question of whether Article 2 of the European Convention on Human Rights (The Right to Life) is breached by the failure of English law to impose a duty upon individuals to assist is questionable.

LEGAL CONSEQUENCES OF PROLONGING LIFE

Although they cannot legally be taken into account when deciding whether or not to do so, the ability to artificially prolong life may have legal consequences other than the criminal. For example, it can alter rights of inheritance in a particular case, it may alter pension entitlements or the amount of income or inheritance tax payable if life is prolonged into a new tax year in which rates or allowances are changed, and it can affect the size of the damages in road traffic accident cases.