Denning Law School
Jurisprudence
Analysis by Huzaifa Muqadam
Death with Consent – Part 1
The below piece of information is in relation to the Conway case. The Conway case involved a person
challenging the compatibility of s.2 of Suicide Act, 1961 with Article 8 of ECHR.
Conway had brought a JR proceedings and wanted the courts to issue declaration of incompatibility on s.2
of the Act. S.2 made providing assistance in committing suicide an offence under the UK law. While
generally providing assistance for committing suicide should be a crime, the law is drafted broadly and also
incriminates actions of doctors who are assisting their terminally ill patients in committing suicide.
The matter to be debated is whether should law permit taking away of life with the consent of a person
particularly, when he is terminally ill and is leading a life without dignity and taking away life seems to be
the most humane and dignified solution.
The patient who is terminally ill may, depending on the situation, be able to exercise one or many of the
options available below to terminate his own life:
(1) The patient requests that life-saving treatment (currently in progress) be discontinued or requests
that life-saving treatment not be undertaken if such a need arises. These both can be called as non-
treatment cases. The doctors and medical staff will be considered as omitting to provide medical
treatment. This practice is allowed and permitted under the law. See Bland case below.
(2) The patient requests a lethal drug which he himself can take at a time of his own choosing. In these
cases, the doctor who accedes provides the patient with the means of committing suicide; and if the
patient does commit suicide, what has happened can plainly and can properly be called physician-
assisted suicide. This practice is prohibited under s.2 of the Suicide Act, 1961.
(3) The patient is not capable of taking the lethal drug himself, and what he requests is that the doctor
inject it. I will call these drug-injecting cases. In these cases, the doctor who accedes does not
provide the patient with the means of committing suicide. The patient does not kill himself, it is
instead the doctor who kills the patient. These cases can be classified as euthanasia. Euthanasia is
prohibited in UK. Consent of the victim is not a valid defense of the crime of homicide nor negates
the mens rea of the person conducting euthanasia.
Airedale National Health Service Trust v Bland (1993)
Lord Goff drew a fundamental distinction between acts and omissions in this context:
“. . . the law draws a crucial distinction between
(a) cases in which a doctor decides not to provide, or to continue to provide, for his patient
treatment or care which could or might prolong his life, and
(b) those in which he decides, for example by administering a lethal drug, actively to bring his
patient's life to an end . . .
the former may be lawful, either because the doctor is giving effect to his patient's wishes . . .
or even in certain circumstances in which . . . the patient is incapacitated from stating whether
or not he gives his consent. But it is not lawful for a doctor to administer a drug to his patient
Denning Law School
Jurisprudence
to bring about his death, even though that course is prompted by a humanitarian desire to end
his suffering, however great that suffering may be”
Discussion
Why does law permit (1) and not (2) or (3), when eventually, the outcome is the same, i.e. death of the
terminally ill patient?
Judith Jarvis Thomson (1999) Physician‐Assisted Suicide: Two Moral Arguments:
Arguments 1: Difference between action and omission
The life-saving treatment of patients in situation (1) is free of is intrusive, and traditional ideas about
autonomy prohibit imposing such treatment without the patient’s consent. Put another way: refusing to
accede to the patient’s wishes in disconnecting and non-connecting cases is a battery.
By contrast—as has often been pointed out—refusing to provide or inject a lethal drug (in situations (2)
and (3)) is not a battery.
Arguments 2: Moral difference between killing and letting die
A doctor’s killing his patient is always morally impermissible, whereas a doctor’s letting his patient die is,
in suitable circumstances, morally permissible.
This moral difference justifies differential legal treatment, namely, legalizing action in the (1) and
illegalizing action in the (2) and (3).
Opinion of the author: Our conclusions about these cases should not be driven by a concern about whether
the doctor kills or merely lets die, similarly they should not be rested on what the doctor would or would
not be intending in acting.
