Contemporary Issues in Law - Volume 14 - Issue 1
Theme - End of Life Decisions
THE PRINCIPLE OF RESPECT FOR HUMAN DIGNITY AND END OF LIFE DECISIONS: A EUROPEAN PERSPECTIVE
Even if respect for human dignity is a primary principle shared by all European democracies and constituting a foundational pillar of European constitutionalism, there is no common conception of ‘dignity’. Moreover, one of the most vexing issues facing the jurist is balancing the relationship between the right to human dignity and exercise of self-determination. This article aims to demonstrate how the principle of respect for human dignity has a clear juridical definition, implying a general guarantee of moral freedom, intended as the right to live one’s life in harmony with one’s moral convictions and commitments. The right to moral freedom is linked to the individual’s right to freely and autonomously choose his or her own destiny, which may be limited only in order to preserve the ‘core content’ of nursing and medical ethics. This choice exemplifies a soft paternalism, resulting in precepts and prohibitions which do not in any way infringe the principle of personal responsibility, as they are based on plausible assumptions held by the vast majority of citizens and are, further, targeted at seeking to preserve society’s most fundamental and cherished values. These limits may shift over time, but the process of change must necessarily result from a consultative process involving all relevant stakeholders.
NICKLINSON AND CARTER: THE DISCRIMINATION AND EQUALITY PROVISIONS IN ASSISTED SUICIDE
Although Canadian courts’ and legislative provisions are constitutionally distinct to those which operate in England and Wales (for ease of reference referred to as ‘the UK’), an examination of two cases from each jurisdiction will show that there is nonetheless sufficient similarity between them to be able to make a valid comparison of the key factors which have been considered in deciding whether legislation which imposes a blanket ban on assisted suicide infringes fundamental rights protected by, on the one hand, the Canadian Charter of Rights and Freedoms and, on the other, the European Convention on Human Rights. The particular focus here is on the equality provision contained in s15 of the Charterin light of the Canadian cases of Rodriguez(1993) and Carter(2012-15), and the discrimination clause in Article 14 ECHR in the context of the UK cases of Pretty(2001-2) and Nicklinson(2012-14). Although there is still some way to go (especially in the UK), it will be seen that judicial perception as to what is meant by discrimination has changed significantly, and for the better, during that time.
ASSISTED DYING: IS THE MENTAL CAPACITY ACT 2005 AN APPROPRIATE FRAMEWORK FOR DECISION- MAKING?
Dr David Casey and Dr Kartina A Choong
The paradigm of end of life care is shifting. Assisted dying is being discussed more frequently and despite the recent failure of the Assisted Dying Bill to garner Parliamentary support, it is likely that further attempts to legislate in this field will be made. Since the assisted dying process is predicated upon the individual choosing to end his or her own life, what constitutes ‘competence’ to make this decision and how it is assessed are clearly matters of significance. Although English law has yet to formulate any legal test of mental competence tailored specifically to assisted death, its management of passive euthanasia, Jehovah’s Witnesses’ refusal of life-saving blood transfusion, and suicide tourism in particular, suggests that assisted death is considered merely as a form of medical treatment. Implicitly and explicitly, the test ordinarily used for assessing competence when obtaining consent to a proposed medical procedure is thereby the test expected for assisted death. This article challenges the suitability of this assessment method, as outlined in the Mental Capacity Act 2005, for this context. It puts forward arguments that are intended to serve as a platform for further debate on decision-making abilities in this increasingly important area.
SHOULD PEOPLE IN THE MINIMALLY CONSCIOUS STATE HAVE A (RECOGNISED) RIGHT TO REASSESSMENT?
Jo Samanta, Dr Kudret Yelden and Dr Sarah Sargent
Developments in medical sciences mean that more people survive serious brain injuries than in previous years. Nevertheless, some survivors are left with protracted or permanent severely disordered consciousness. Expert care and treatment of people in the minimally conscious state is expensive and accurate assessment, and reassessment, of their condition is necessary for optimal management and targeting of healthcare resources. This empirical study sought to identify whether minimally conscious people should have a ‘right’ to be reassessed. A grounded theory approach was used to ascertain policy and perspectives of senior decision-makers (including clinicians, lawyers, commissioners and healthcare managers). The results are contextualised within a theoretical framework of recent common law and professional guidance in England and Wales. The findings reveal that whether minimally conscious patients have access to specialist assessment and treatment services depends largely on the vagaries of circumstances, expertise and the availability of validated neurological assessment tools.