Consider whether the principle of patient autonomy as endorsed by the UKSC in Montgomery v Lanarkshire Health Board [2015] UKSC 11 should be applied to the legal regulation of euthanasia?

This essay will seek to argue that, in the face of many opposing stances; the principle of patient autonomy, as endorsed in Montgomery v Lanarkshire Health Board, should be applied to the legal regulation of euthanasia; however, not absolutely. It should be implemented in a way which preserves the autonomy of the individual allowing them to exercise self determination; but also limiting the potential dangers of absolute autonomy by conferring on medical professionals responsibilities to ensure that any informed decision taken by a mentally competent adult is taken in the best interests of the patient.

Over the last 30 years, 69 to 82 per cent of the British population has consistently shown support for a long awaited change in legislation to allow the choice of an assisted death for the terminally ill and mentally competent adult[1]. Autonomy is a central value in Western medicine and medical ethics, but exactly the kind of role medicine ought to give to patients’ autonomy in spite of the overwhelming support for autonomy being the final arbiter in cases of euthanasia and assisted dying, seems to remain somewhat obscure.

Autonomy is derived from the Greek words ‘autos’ meaning self, and ‘nomos’ meaning rule or law[2].  The principle of personal autonomy has been long contested within the medical sphere as it poses a significant threat to the concept of medical paternalism and doctors ‘knowing best’. Autonomy plays a central role in the practice of medicine and medical ethics, however what remains obscure is true value of this role and whether autonomy as a ‘right’ is respected enough to principally allow patient’s self-determination. Assisted suicide, defined as any act that intentionally helps another commit suicide, is an increasingly topical and controversial issue central to the current concern surrounding the ethical debate on the respect of patient autonomy being one of the fundamental principles of medical ethics underpinning the arguments for the legalization of assisted suicide. Though it is not a crime in other jurisdictions; currently in the United Kingdom the legal regulation that presides over our own is somewhat nuanced and lacks structure and certainty in practice. Legal precedent has been found to be lacking in its authority and providing distinct regulations that can be applicable to all cases of this nature.

The landmark decision in Montgomery v Lanarkshire Health Board set in case law the explicit recognition of the patient’s right to autonomy and informed choice[3]. Mrs Montgomery was not informed of all the risks associated to the birth of her son. Being diabetic and of short stature; complications led to her son being born with cerebral palsy. She argued that had all the correct information been disclosed to her, she would have opted for a caesarean section and her son would not have been born disabled. The case reached the Supreme could where her appeal was upheld; affirming how women give birth is an entirely autonomous decision, and the physician’s role is simply to provide her with the right information. What is not appropriate or required is that disclosure of risk be based on clinical judgement. This decision had significant ramifications for medical and ethical law; and threw into question the position autonomy has in medical treatment.

Bolton argues in favour of the impact of the Montgomery decision, in that when there are options in care, the patient decides, not the doctor. If a caesarean section is a reasonable option then women are entitled to choose it.’ Whether or not Bolton’s argument can be extended to the legal regulation of euthanasia is questionable, predominantly because her line of work is primarily concerned with the other end of spectrum; obstetrics and gynecology therefore the beginning of life. What is clear therefore is that further clarification is needed in the form of legal precedent or legislation with regards to balancing the state’s responsibility to protect the lives of its citizens and an individual’s personal autonomy; affording the necessary value to what a person wants as a fully competent and informed patient. However, what is also highlighted, is that the process of achieving an agreeable balance is not as simple as it seems, and there are drawbacks of having individuals able to exercise full uninhibited autonomy in situations of life or death.

What’s autonomy got to do with it?

In the notable case of Re A[4], the Court of Appeal held it would be lawful for an operation that would separate two conjoined twins to be performed, despite acknowledging the potential charge would be murder.  Ward LJ reasoned it was lawful to kill one of the children, citing an analogy that suggested self-defence on the part of the child as the other was responsible for its impending death. Ward went on to say the death as a result of the operation did not breach the principle of the sanctity of life because of this quasi self-defence. Controversially, Brooke LJ rejected this claim of self-defence but Ward went further to claim necessity was the reason why the separation surgery went ahead, as it was in the child’s best interest. This is the first instance the courts were faced with a case of this kind regarding necessity and best interests; and clearly demonstrates an inconsistency between the legislation and the judiciary’s interpretation and application of it in practice. The unique facts of Re A prevented it from achieving any significant legislative or common law reform that could have aided the likes of Nicklinson and Lamb later in the case law. Although it did contribute to this realm of legal thought the idea that factors such as quality of life and best interests can supersede sanctity of life, and it also highlighted the concern that state protectionism began to overule personal autonomy as the parents of the twins were against the killing of one. It could be said that the judgement in Re A redefined the public’s perception of murder; where one twin’s quality of life was clearly at stake.

2002 saw the first challenge to the status quo of euthanasia and assisted suicide when Diane Pretty[5], who was suffering from motor neurone disease legally sought an undertaking that the Director of Public Prosecution would not prosecute her husband for assisting in her suicide when she would eventually elect to undergo the procedure of terminating her life. The case eventually reached the European Court of Human Rights. Although the judges of the English courts and European Court of Human Rights were desperately sorry for her predicament, they did not find in her favour. Lord Falconer concluded the current legal status of assisted suicide was ‘inadequate and incoherent’ [6] reinforcing the concerns following Re A that murder had been committed without charge.  This inconsistent and unclear approach to the regulation of euthanasia despite the current complete illegality of the practice, could suggests that any form of legalisation will only result in more ambiguity. So therefore, by extending the principle of patient autonomy to this area of law and reconciling it with circumstances deemed permissible, the law would have much more structure and effect; and the inconsistencies and contradictions would no longer be a problem.

Though the DPP guidelines do offer some clarification of the legal position on euthanasia; the Falconer Report goes on to outline the legal framework, through the principle of ‘Legal Change’ which would strictly define the circumstances and eligibility criteria in which terminally ill people might be assisted to die. As much of an improvement to the clarification as this might be; it still does not deal with the primary issue if autonomy plaguing the courts today. The codification of rare circumstances that would permit assisted suicide and euthanasia as proposed by the Falconer report would only further marginalize autonomy and restrict euthanasia to situations predetermined by the courts. In order to apply patient autonomy to the legal regulation of euthanasia; a dialogue has to take place so as preserve the authority of individual rights and autonomy. In the case of Sidaway v Board of Governors of the Bethlem Royal Hospital, Lord Scarman promoted individual autonomy by asserting that “the patient’s right to make his own decision… may be seen as a basic human right protected by the common law”. This was the rationale applied in the landmark case of Montgomery but signicantly absent from the case of Nicklinson[7].

In 2014 the Supreme Court rejected an appeal concerning three disabled men who wanted doctors to be allowed to assist patients to die. Nicklinson, one of claimants tried to use this common law doctrine of necessity; first addressed in Re A, to assert that he should be allowed to have help in the form of voluntary euthanasia, because it was necessary for him to avoid the greater evil of continuing life in this way.  Whilst Re A developed necessity  in the sense that common law reasoning could say that voluntary euthanasia should be lawful in some circumstances where it is necessary to avoid the greater wrong of intolerable existence, the law has not adapted this position and still remains in a paternalistic position in spite of several instances where it has failed to prosecute. The court’s stance remains nuanced; and a hair lies between where the prohibition against euthanasia has been applied, for instance in R v Cox[8], and where it has not, in the case of R v Moor[9]. The court appear to apply compassion in cases where patients express a wish to die, but are stringent in situations where a patient is unable to express their desire. This could suggest an element of discrimination towards the disabled; and those with desires to die, but whom are unable to express it. There exist however, opponents to euthanasia who themselves suffer from disabilities. Baroness Campbell, who has spinal muscular atrophy, founded the organization Not Dead Yet, and she claims “If the law was changed it would feed into society’s fear that being very disabled like me is a state worse than death. We already have to fight to live; a right to die would be a huge and frightening burden.”[10]

 

 

Consent and Euthanasia

The communication of consent is seen as a fundamental requirement for any medical treatment owing to the decision in Montgomery. There is no universally accepted definition of informed consent, Justice Kirby defined it as ‘Consent is obtained after the patient has been adequately instructed about the ratio of risk and benefit involved in the procedure as compared to alternative procedures or not at all”.[11] In making informed consent a fundamental requirement for the exercise of personal autonomy; means patients be adequately informed of the procedure and its associated risks has the potential to preserve autonomy to a certain degree. O’Neill suggests that the best reason for requiring informed consent is that it provides patients with protection against being deceived or coerced therein creating a safeguard procedure for euthanasia that pairs capacious personal autonomy with informed consent which would adequately protect the autonomy of individuals whilst ensuring the state goes to the necessary measures within its power to prevent foul play.

Wolpe[12] argues that despite ‘grand visions of autonomy’, consent is more than a formality. Once doctor diagnoses a patient and recommends treatment, rarely will a patient disagree and they provide consent anyway as they may feel they have no choice. He believes that in many cases, the patients autonomy could be used against them, equating to a modern clinical ritual of trust. Keown[13] supports this, forwarding the Dutch approach as clear critique of the belief that any form of euthanasia could be limited to justifiable cases involving fully competent consenting persons. He believes it will inevitably lead to involuntary euthanasia on the grounds of quality of life. However, there are significant drawbacks to the informed consent approach. The paradox presents itself once we consider the greater weight afforded to autonomy, consequentially, the requirements for consent will become stricter and more difficult to satisfy than simply being a competent consenting person.

A corollary effect will be that fewer people will be able to satisfy these stricter requirements and thus more people will be typecast as incompetent or lacking in capacity to consent, resulting in a return to the paternalistic treatment; further marginalizing the autonomy therestrictions intended to preserve. This could lead to further cases turning out like that of Nicklinson. W v M[14] was a case which saw judges rule that all patients in a minimally conscious state must be referred to the Court of Protection[15] if life prolonging treatment is to be withheld or withdrawn. The court follows a comprehensive practice direction regarding all serious medical treatment- which state it is lawful for a treatment or procedure to be carried out by the medical professional if a declaration can be made in the best interests of the patient who may lack capacity of the patient who may lack the capacity to make a decision or provide informed consent. Baker J’s judgement in W v M; was profoundly disturbing. He stated that ”The importance of the sanctity of life, the fatal consequences of withdrawing treatment, and the absence of an advance decision that complied with the requirements previously specified by the common law and now under statute, it would in my judgment be wrong to attach significant weight to those statements made prior to her collapse”

This judgement was profoundly disturbing in not affording significant weight to a patients previously expressed values in addition to the judgements logical implication that all decisions regarding the initiation or termination of life prolonging treatment for all incapacitated patients should be brought to the court of protection, even though judgement only refers to patients in a minimally conscious state is deeply worrying as it highlights the extent to which legislation has gone to prevent the exercising of autonomy, even when provisions are made to do so. Imploring the stance held in Montgomery with appropriate safeguarding would allow self determination in accordance with the opinion of medical professionals, as opposed to appointing physicians as the final arbiters of patient’s fates

Can we still rely on the Sanctity of Life?

Mason and Laurie[16] identify that the law sometimes recognizes that being kept alive is not always in someone’s best interests. Devlin LJ in R v Adams[17] stated that “If the first purpose of medicine, the restoration of health, can no longer be achieved, 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 life”. Re A’s obiter rhetoric by Ward LJ stated that a patient’s quality of life and best interests can overrule their sanctity of life which highlights the weakness of the principle of the sanctity of life; and the benefits of replacing it with a patient autonomy and best interests approach as forwarded by Raz. The contrast between the rationale behind the Re A ruling, and the Pretty ruling demonstrates an unpredictability in moral standards by the courts; and confusion as to whether the sanctify of life is regarded as paramount, or quality of life is the deciding factor. If quality of life can overrule the sanctity of life in Re A but not in Pretty and the principle of patient autonomy over medical or state paternalism be endorsed by Montgomery there is clearly an issue of consistency and predictability regarding the moral and ethical standards of the application of the sanctity of life principle, and this suggests a revision to the current legal regulation that provides the basis of thought surrounding the issue of euthanasia. Applying the principle of patient autonomy in the light of quality v sanctity of life argument does create an element of subjectivity surrounding the topic meaning it is dealt with on a case by case basis- potentially derogating from the law’s current rigid stance. Input from doctors in determining quality is necessary but prognosis and patient decision ultimately has to concur. More recent case law is in support of this position as Lord Donaldson stated in Re J[18] that in ‘exceptional circumstances’ the strong presumption in favour of life could be rebutted; affirming a patient could be allowed to die on the basis of their best interests. Which is confirmed by the ratio in Bland[19] where it was asserted that a doctor’s interest is to act primarily in the best interests of the patient. What are the patient’s best interests? And if there is no positive outlook, and they do not want to suffer any longer – is their best interest left to their own autonomy to determine? Both questions are best left to the patient themselves to answer, and if this is not possible, determining what the patient would have wanted is the most moral and logical approach. This supports the argument that we can apply the principle of patient autonomy from Mongtomery into a number of medical arenas in which it does not currently apply in order to gain clarification as to the rights of individuals and allow the state to honour Article 8 in its fullness and allow personal autonomy.

 

 

Autonomy as a basic human right

 

Dworkin believes autonomy is a basic right that the state cannot limit without compelling reason[20]. And furthermore, In the absence of patient autonomy, the state’s political and economic influences could potentially be forced upon everyone, in particular the vulnerable, who may as an extreme example decide that a certain type of people such as those in PVS or with degenerative condition be euthanized for economic reasons. As extreme as it may seem; personal autonomy is a safeguard against significant arbitrary action. However, personal autonomy may not, in effect protect the vulnerable, it will instead confer the right to die on certain groups in society which will pressurize the vulnerable. However, legal regulations and caselaw are gradually beginning to offer protection to vulnerable patients. For instance, the MCA 2005[21] only protects those who lack capacity and is therefore inadequate in protection the majority, however Herring[22] believes that recently courts have developed jurisdiction fill the gaps left by the MCA, specifically dealing with adults thought to have capacity but thought to need protection. Munby J defined this jurisdiction in the 2005 case of Re SA[23]:  “The inherent jurisdiction can be exercised in relation to vulnerable adults who, even if not mentally incapacitated, is reasonably believed to be either under constraint, subject to coercion or undue influence or be deprived of the capacity to make the decision, or disabled from making a free choice”. The definition of this jurisdiction demonstrates the extents to which the core fears of the opponents of the legalization of euthanasia can be alleviated, referring to how a vulnerable adult’s autonomy can be safeguarded. The relatively recent nature of this case means it is difficult to judge how influentially it has acted as precedent, however it is a step in the right direction for the court in taking it upon themselves to protect the vulnerable.

Raz proposes that the quantification of quality of life is difficult and rests on many factors that cannot be measures. Rather than seeking to measure one’s quality of life, autonomy should prevail, in that for example someone with a high quality of life but living their life in constant unremitting pain should not be unreasonable in their choice to end their life. People’s personhood and feeling should not be overlooked as there is intrinsic value in choosing how and when one’s life will end. Raz’s argument seems to perpetuate the idea that true human sovereignty reigns over every matter that concerns them; and the right to die can be exercised for a variety of reasons, not only limited to reasons ascertained by the state. This suggestion of absolute autonomy; whether the person offers no reasons as to their choice or not, or whether their reason is enough to justify ending one’s life should not matter. I strongly disagree with Raz’s opinion here; as euthanasia is a very sensitive and important remedy for many who suffer intolerable pain. Though he may have employed hyperbole here, to demonstrate that people’s reasons for wishing to die may not make sense to others but should still be respected; there is danger in following Raz’s line of thinking here, and ending up in a situation feared by Keown where society is left with ‘disastrous consequences’[24]. However, Raz advocated that ultimately shaping one’s dying contributes to giving shape, form and meaning to ones life, and therein people integrate their dying into their life, thus enriching their life. Raz goes on to assert that the power will transform one’s perspective of one’s life. A lot of the vocabulary used in Raz;s rhetoric is synonymous of a power struggle. Suggesting that euthanasia should be open to one and all in an attempt to gain autonomy back from the state. However, opening up the option of autonomy to anyone with or without just cause would be incredibly calamitous and would not enable legal regulation of euthanasia in any sense of the word. Elderly people would begin to consider themselves a burden and want to end their lives sooner, and people suffering from illnesses with a cure or with pending treatment will resort ti euthanasia as the easy way out. This is where state protectionism comes in, and a balance must be found in order to effectively apply the principle of patient autonomy to the legal regulation of euthanasia.

According to Raz, the right to die cannot be construed as a narrow right confined to very limited circumstances. It is based on the value of having the normative power to choose the time and manner of ones death. Raz outlines four conditions are often thought to justify voluntary euthanasia : a) a life without consciousness, known as vegetative state,  b) a life of unremitting great pain, c) a life of total dependence on others, d)a life of greatly diminished mental capacitates (severe loss of memory, absence of linguistic capacity, unremitting mental distress, fear etc) to voluntary euthanasia that applies to a vegetative life not worth living. Raz believes that only the first confines people to a life not worth living and there could be a limited right to euthanasia for people who suffer from the remaining three. This line of demarcation demonstrates that though those who suffer from a life without consciousness should be automatically considered for euthanasia; decisions will be made on their behalves. This calls into question the true ability of the legal regulation of euthanasia to apply patient autonomy.

 The rationale behind reconciling the principle of patient autonomy with the legal regulation of euthanasia could at best protect people from a life not worth living, sparing them from having ensure intolerable pain and suffering. Applying personal autonomy to euthanasia would mean every person is given the power to decide when to ask for euthanasia. Raz argues that with that power, one can determine when life is no longer worth living, and when that point had reached minuses the mistaken applications of that right and protects the power from abuse; over if the power was conferred to the state or to relatives. There are however significant setbacks to this approach; the ‘floodgates’ argument is strongly supported herein, due to the fact that without limitation as to what can be classified as a case for euthanasia, ironically, the law may be able unable to prevent the marginalisation of personal autonomy and compromise of our right to life, leading to vulnerable groups of society being at greater risk of involuntary euthanasia.

The slippery slope

The main argument that poses a threat to patient autonomy fully being applied to the legal regulation of euthanasia is the slippery slope argument. This argument is regularly invoked in a variety of practical ethics contexts, making the claim that if some specific kind of action (herein euthanasia) is permitted, then society will eventually be inexorably led down the slippery slope in permitting and accepting other actions that were previously considered morally wrong. A logical analysis of the principle of the ‘slippery slope’ itself was carried out by Spiethenner[25] on which it was concluded that the slippery slope arguments are logically fallacious which supports Raz’s view that simply citing many examples of potential abuse of a legal right and the potential extremities the abuse could reach is not sufficient enough to justify withholding that right.

Benatar[26] strongly opposes both the slippery slope and abuse arguments; and presents his response to them in a very figurative way. Employing analogies that demonstrate exactly what the shortcomings of both arguments are; it could be even be said that he borders on the line of satire and sarcasm in his approach. Though this makes for lighter reading than other sources, the undertone almost suggests that opponents to the notion of applying patient autonomy to the legal regulation of euthanasia still remain primitive in their understanding and appreciation of people being entitled to choose to escape a life which to them is no longer worth living. An entitlement that should be recognised and accepted without so many fierce attempts to tarnish its value.

Benatar presents an interesting stance on the issue, referring to those denied the choice of euthanasia and instead forced to continue living a life they deem intolerable as suffering an ‘unspeakable violation’. Suggesting that true autonomy involves governance over one’s entire existence; thus over both life and death which advocates life to be biographical rather than biological, further in support of Raz’s biographical life argument. Benatar goes on to discuss that the slippery slope argument and the argument regarding the safeguarding and potential dangers of abuse which come with the discussion of euthanasia are all scare tactics, the rhetorical force of which exceeds their logical strength. This is a very significant statement to make, suggesting the argument which presents the greatest threat to the enforcement of patient autonomy and therefore the legalisation of euthanasia is merely a ‘scare tactic’ employed by those who do not want to see people determine the course of their lives by whatever means necessary. Referring to the opposing arguments are scare tactics highlights how little weight the arguments have behind them, and also potentially shows the extent to which the state will go to limit absolute autonomy. However what is most interesting about Benatar’s argument is that he believes that it would be easier to assert the existence of a slippery slope than it would be to prove it. He uses the analogy of being an opponent of apartheid in South Africa in the 1950s. Unable to elicit legal change by way of legal channels through the most obvious means of convincing the white electorate, one would instead chip away at the discriminatory social infrastructure brought about by the apartheid. Starting for instance with abolishing separate entrances for blacks and whites into social areas. The slippery slope argument would herein suggest that a domino effect would ensue, and from the permissibility of entrances for both blacks and whites would come a tolerance of interracial friendships, and then romantic relationships between blacks and whites and eventually the abolition of apartheid itself; which would be the worst of all fears. Illustrating the slippery slope argument in this way is almost comical; in that it demonstrates that though the trajectory might come as a consequence of the original action, there is still both uncertainty that it will ever occur, and furthermore the consequences that are so feared could exist without the initial action. This demonstrates that the slippery slope argument serves the fuel the fear that once Britain takes the leap and legalizes euthanasia, our moral compass will be rewritten and we will gradually lose sense of what is right and wrong in allowing a form of murder in the name of ‘automomy’. Brock proposes that the moral status of death hinges on the consent of the patient[27] and therefore the morality of the decision to die is dependent upon the autonomy and wishes of the patient; if the patient decides that it is the option they want, they should not be criticized or stopped from doing so. The use of the word ‘hinges’ also suggests the matter is topical and precarious, however the morality literally depends on the consent of the patient, and so long as this is obtained and proven retrospectively (if required), then the decision cannot be questioned. Spiethenner, Benatar and Brock all demonstrate clearly why the current legal regulation of euthanasia should be under review, and the fear of involuntary euthanasia and the gradual depletion of society’s moral compass. Asserting the principle of patient autonomy within this field in certain circumstances with appropriate safeguarding would ensure that doctor’s are able to do their job and as American pathologist and euthanasia activist, Dr. Jack Kevorkian, commonly known as Dr. Death argued ‘What counts is what the patient wants… That’s primary’[28]. Ko strongly advocates the alternate viewpoint, suggesting that legalization of euthanasia, and having death as an option availed to ailing patients rather violates the principle of autonomy[29]. Ko claims that allowing euthanasia does not mean that the patient is allowed to die at their own choosing, but rather that the physician is allowed to cause their death. She views euthanasia not as a right that an individual enjoys but as the granting of permission to another to transgress. This presents an interesting perspective from which to view the legal regulation of euthanasia and could potentially highlight why it has taken the courts so long to define their stance on it. Ko views euthanasia as a public act, and each time an individual desires it, they are granted the right to enlist the aid of a physician who will be out into a position of committing homicide. This social and moral responsibility rests on the physician, in addition to the legal responsibility of having to report to the coroner and being investigated for possible foul play. Herein lies our next main opposing argument to applying patient autonomy to the legal regulation of euthanasia. Per the Dutch pro-euthanasia attorney Sutorius, “many physicians do not report euthanasia cases as the law requires, although the percentage of those who do is climbing rapidly”[30]. The underlying point to Ko’s argument is that it is ridiculous to assert that euthanasia allows patients to exercise their individual rights, because this ‘right’ is never individual and impacts the lives of others. This is where the difficulty lies for the courts; and where the best interests argument is called into question. If by Dr Death’s line of reasoning, what the patient wants is primary, then shouldn’t the patient’s informed consent and autonomy determine the morality of the ‘good death’?

This view is further echoed in the arguments of Fergusson and Raz. Fergusson asserts that allowing patient autonomy to impact the regulation of euthanasia would negatively effect members of the medical profession. He draws up comparisons with the legalization of abortion and highlights the conscience clause in the 1967 Abortion Act has worked only partially[31] and abortion has kept doctors away from obstetrics and gynaecology and from general practice as a whole. Though abortion can be avoided as a doctor, there is no branch of medical practice which can entirely avoid issues of death and dying. This is a view shared by Joseph Raz; where he too highlights that the work opportunities of those who object to the process of euthanasia might be limited if Britain were to fully accept patient autonomy as the regulator for euthanasia. Raz asserts that those who claim conscientious objection will find their employment opportunities restricted and will not be able to obtain or keep jobs if doing so will make it difficult for people to avail themselves of the right to euthanasia. This further highlights the validity in Ko’s argument in demonstrating that euthanasia is not as much of an individual decision as proponents purport it to be. Furthermore, Cogen-Almagor – appreciates that people do not live in isolation and although they may be free and autonomous, their actions can impact and be impacted by others.[32]

Both the views of Fergusson and Raz herein are perfectly logical, and the fact that there are both proponents and opponents to the legalization of euthanasia demonstrates that there will be some in the medical profession who for personal beliefs will not want to be involved in such. Ko; mentioned earlier in the discussion of whether euthanasia truly conferred autonomy is in fact training to become a doctor; and though in medical training students are privy to the not so nice elements of healthcare and life as a whole, requiring that doctors are to concede and fundamentally commit murder to fulfil the will of patients is something that not all doctors can accept on a moral basis. This further increases the tension between the medical profession and its subjects. To take this analysis one step further it would be interesting to assess it from a philosophical and ethical viewpoint. The views of philosophers Immanuel Kant and John Stuart Mill on autonomy have greatly contributed to the discussion of euthanasia. Mill argued that the right to self determination should be upheld as long as it did not cause harm to others; whilst Kant supported the idea that autonomy should be governed by rational choice. Who are the ‘others’ that Mill spoke of? And can choosing to die ever be a rational choice? A Kantian view of autonomy with emphasis being placed on rational choice would support the partnership and relational model of decision making that encompasses the mutual respect, dialogue and reasoned negotiation between doctors and patients[33]. Remnants of this rhetoric are expressed by Raz who believes the only way for doctors to truly know what is in the best interest of the patient is to engage in such dialogue with the patient and where possible the patient’s family also. The Milean autonomy is more consumer based; with emphasis placed on patient preferences and desires, extending a patient’s right to demand a specific intervention which may deviate from the established medical practice, and the professional’s judgement, recommendation and autonomy. Following the Milean autonomy argument, doctors merely become instrumental to the carrying out of the patient’s preferences, being obliged to fulfil the desires of the patient irrespective of what they believe to be the best course of action. Following this line of reasoning, the doctor-patient relationship becomes lop-sided, favouring the patients’s desires and demands. Applying these lines of reasoning in a more practical sense to euthanasia; a patient with Kant’s view of autonomy would have to overlook their desires and preferences in favour of pure practical reasoning. Though difficult, especially for patients in very vulnerable states due to physical or psychological illness, it is not impossible. Kant himself produced arguments against the acceptability of self killing. He claimed that it was profoundly against moral law to kill oneself even if the continuation of life brought more evil than satisfaction[34].  Brassington went on to say that autonomy “simply peters out at some point before self-killing, so that there is simply no such thing as … assisted suicide”[35]. This statement undermines the entire autonomy argument and suggests that nobody can be assisted in committing suicide or even killed because they want to be killed. I strongly disagree with both of these points as it is evident that when a person reaches a point in their life when they feel life is no longer worth living, and they are unable to end their suffering alone, enlisting the help of medical professionals is both courageous and the ultimate exercising of one’s free will. Velleman quite poignantly argued that it was sometimes justifiable to destroy an object of value, if it would otherwise degenerate in ways that may diminish that very value[36]. This rhetoric is heavily supported by Raz, who believes that allowing people to determine when they can no longer live life as it was intended for them to live, they can choose to stop trying. Though Raz’s argument is what some would consider extreme, in that he purports that illnesses alone should not be the only premise for access to euthanasia, the idea that it is justifiable to end the life of something when the very thing that provides its value degenerates is both sound and demonstrates why the courts should consider applying the principle of patient autonomy to the legal regulation of euthanasia. It could even be said that the current prohibition is exacerbating the vulnerability of those suffering from unbearable illnesses, by creating conditions whereby they travel to countries where euthanasia is legal sooner to avoid reaching a point in their life and illness where they lack any significant control or autonomy. Mill’s view of autonomy allows patients to take back control over the process of dying, often viewed as something that benefits and improves our lives. Raz expresses this very same sentiment, in suggesting that euthanasia affords people the ability to control the entire course of their life, providing them with a new perspective and more positive perspective of what is important and enabling them to control the legacy they leave behind.  However, allowing autonomy at such  a critical stage may lead to several problems expressed by many academics in the discussion of euthanasia. In particular, patients may misunderstand their options for end-of-life care. Without exploring the many other options available and seeking out the easiest possible way out of the pain or discomfort, patients may overlook the possibility of other effective methods of palliative care; and in turn, Fergusson argues that allowing autonomy preside over the legal regulation of euthanasia could hinder the development of alternative treatments in palliative care.  However, those who argue that there are always alternatives to death for those whose lives have become intolerable ignorantly present palliation as a possibility, even if palliation requires sedating the patient to the point of minimal or no consciousness. What this suggestion fails to realise is that it is not always pain that renders life not worth living, and Raz furthermore argues that several other reasons may not be understood, but can be justified. For some, the prospect of living out the rest of their biological days in a minimally conscious or unconscious state is a fate worse than death. Though, Sathasivam[37]  claims it is commonly known that during the latter stages of life, especially when suffering from such debilitating illnesses, patients often request euthanasia during a point of depression, or when undergoing existential or spiritual crises that cloud cognitive clarity and interfere with the proper understanding and appreciation of end of life options and therefore she believes allowing autonomy to regulate euthanasia would be dangerous[38]. Though there is validity in this claim, what must be acknowledged is that in a European wide survey of nearly 2 and half thousand medical and paramedical professionals found that 82% would prefer not to be kept alive in a permanent vegetative state, and 70% would prefer not to be kept alive in a minimally conscious state[39]. Lyon argues that society’s definition of “survival” has now become purely having the body’s mechanical processes continue, and fails to incorporate the patient’s suffering and quality of life into the discussion[40]; and this has huge ramifications as it belittles people’s experiences and quality of life, in favour of a more linear biological life; which to all is not reasonable. Benatar demonstrates that is not at all unreasonable to view a continued biological life with only minimal (in any) consciousness as undesirable. Nor is depression as a result of, and in response to such a prospect in any way irrational. Benatar almost reflects this line of thinking as audacious, and the suggestion that people who manifest such depression should rather be provided with psychiatric help is marginalizing their autonomy and instead perpetuating the problem with medical paternalism.

What is ironic, is if medical professionals themselves are vocalizing what they would do if in such a position; it would be questionable and rather paternalistic to envisage how any future autonomous decision after an individual in such a condition has made their choice, is going to carry more weight than the central wish of a person wanting to end their life[41], and trying to convince someone that barely living but remaining alive is better than death is something no individual unless they themselves have experienced it can attest to. Lyon argues that it is tempting for outside observers to refuse such a request because we ‘know’ it gets better.  However, it is not possible for anyone to definitively ‘know’ that, and as such, the best observers can do is compare something that they have lived through to the sufferer’s current situation which to many, is incomparable and unimaginable.

This this is exactly why the only person in a position to determine whether or not euthanasia is the best option for them is the patient; after close investigation and discussion with their medical professionals. The courts requires a set of legal doctrine put into place to govern this area of law; which encompasses precedent and current medical capabilities; so as to ensure the patient is making the best possible decision for themselves and as many avenues as possible are explored. Both the views of Kant and Mill of autonomy involve individual choice; but may not take into consideration the social context of the patient. Raz proposed that a good model of autonomy should involve an interactive and interdependent approach to decision making, where patients are empowered by family and doctors to consider the values, duties, and commitments of all those involved and directly affected by the patients’ decisions, including, but not exclusively, the views of the patients. Davis asserts that in this model, the key consideration should not be whether the patient or doctor should be given decisional rights but rather how to enhance the autonomous decision- making process of patients within appropriate social considerations[42]. This forms the crux of this analysis; that patient autonomy should govern the legal regulation of euthanasia, but only when supported and edified by the expertise of medical professionals so as to ensure it is the best option out of all available to the patient. However;  Veatch claims that although doctors might have expertise in medical issues, they will not know a patients religious or personal values or wishes and therefore their input should be minimal. So as to prevent doctors from perpetuating medical paternalism; the antithesis of patient autonomy. Donchin[43] endorses a greater level of responsibility on the part of the doctor. Even in situations where patient autonomy is to be honoured, the doctor must achieve a better understanding of the patient’s social, economic and religious situation potentially through cultivating a relationship with the family. Both Veatch and Donchin suggest that relatives of the patient are best suited to deciding what is in the best interest of the patient; whilst a doctor can provide an external and objective opinion of the situation according to their medical expertise. Drawbacks to this route are in situations where the patient has few or no accessible or known family members and in situations where the patient’s autonomy could be further diminished by family member influencing the doctor’s actions. However, both these scenarios can be combatted by allowing the application of patient autonomy as a deciding factor in itself. The doctor-patient relationship is essential to the preservation of patient autonomy as they will know what the patient wants as well as what the patient needs.

Bartlett[44] proposes that a useful model for the doctor-patient relationship would be to regard the doctor as a fiduciary; a person entrusted with a power which can be exercised exclusively for the benefit of the beneficiary. This is a strong analogy and demonstrates that irrespective of the fiduciary’s desires; the furthest their opinion can go is in making a suggestion, but ultimately, they hold the power to act in the best interests of the patient. However,

Lewis[45] argues that there and fundamental flaws in the best interests approach and it is too multifaceted, meaning in practice cannot be implemented efficiently so as to bring about a regulatory framework capable of preventing descent down the slippery slope. He argues that the best interests argument will lead to the acceptance of instances where euthanasia is not needed but utilized in spite of the doctor’s expertise and other available options. This is supported by Holm[46] who cites the vagueness, ambiguity and lack of scope surrounding the ‘empty rhetoric’ that is the best interests argument; as according to Re J – an individual judge or medical professional can declare treatment to be in a patients best interests without consultation, oversight or scrutiny. Best interests, as it stands is not always a dialoge and this is the main cause for the overwhelming support for the prevalence of patient autonomy. This undoubtedly highlights the need for the courts to set in stone the interaction between patient autonomy and the legal regulation of euthanasia, the interplay involved in achieving that balance and the respective roles each party plays. In cultivating healthy doctor-patient relationships, not only with the patient, but also with the patients families, according time to get to know the patient, their values and reasoning behind their desire to die, autonomy can play a beneficial role in the legal regulation of euthanasia as it will allow people exercise their free will whilst also ensuring that the state does all that it can to ensure the decision has been made informedly and consensually.

Once again referring to Benatar’s assertion, citing many examples of abuse of a legal right is not sufficient to justify withholding that right.If the likelihood of abuse were thought to be grounds for withholding a right, then much more than euthanasia would have to be banned. Again, he cleverly uses an analogy to illustrate the pertinence of this point. Benatar likens euthanasia to driving would have to be prohibited on the grounds that the right is abused and that none of the safeguards we have against such abuse are completely effective. People still exceed speed limits, people still drive through the red light and people still drive cars that are not roadworthy.  Some even drive without a license or while under the influence of alcohol. The abuse of a legal right often has fatal consequences and thus driving is not unlike euthanasia in the severity of the outcome of the abuse yet driving is still legal. Completely denying the right is not the correct approach to the fears associated with euthanasia, the appropriate response would be regulation.

Opponents of allowing the application of patient autonomy to euthanasia who cite the dangers of abuse in support of their view often fail to notice that abuse is possible even when such practices are legally prohibited, and it is somewhat naïve to think that covert forms of euthanasia are not occurring in places where those practices are illegal.

Is the safeguarding and control of euthanasia an illusion?

Fergusson[47] argues that Britain does not need euthanasia, and no society could ever control it. This forms the basis of another facet of the opposing argument to applying patient autonomy to the legal regulation of euthanasia. That no legal safeguards can prevent the abuse of that right. The legalisation of euthanasia in the Netherlands is often pointed to as a primary case study with regards to the acceptance of euthanasia as a legal right and option in end of life care. Many opponents often point to the Netherlands and note how the law permitting euthanasia and physician assisted suicide in that country has steadily become more permissive. Though this is the case, those who invoke this as a premise to deny the assertion of patient autonomy in such situations fail to realise that these changes are insufficient to demonstrate the existence of a ‘noxious’ slippery slope. The Remmelink Report[48] analysed all 129,000 deaths in the Netherlands in 1990. 3% were by euthanasia and of that 3%, 1 in 3 of all deaths in the Netherlands were euthanasia ‘without explicit request’ in a mix of voluntary and non voluntary euthanasia. Dutch doctors in 1990 killed more than 1000 patients without their express request. Which Fergusson argues is not respect for patient autonomy but medical paternalism of the very worst kind[49]. And many believe that endorsing patient autonomy in the legal regulation of euthanasia will perpetuate “Patients being coerced and exploited. The search for better or alternate therapies compromised and involuntary euthanasia will inevitably follow” as asserted by Saunders[50]. In 2011, a 64 year old woman, suffering senile dementia was euthanized even though at the time she was unable to express a desire to die. As such, in order to prove that patient autonomy should be applied to the legal regulation of euthanasia, it is vital to assess the potential effectiveness of the safeguarding mechanisms of personal autonomy.

The annual reports of the Dutch Regional Review Committee in 2010 [51] reveal 2.3% of all deaths ended through a form of voluntary assisted euthanasia, compared with 0.21% in England and Wales[52]. However, it could be argued that these figures are conservative and not representative of the true scale of the matter, as the Remmelink report in 1980 suggested only 19% of the figures were being reported. This FURTHER proves Benatar’s point that prohibiting the practice will not prohibit it’s practice, and will lead to covert operations that go unchecked. Therefore conditional legalization with regulation is the best possible route for the law to take. The number of reported cases has increased from 19% in 1990 to 80% in 2005, and this can be attributed certaintly to the 2002 act. This therefore suggests that legalised or not, euthanasia will still occur, but only the reporting of its incidence changes significantly with legalisation as doctors no longer fear self-incrimination. A parallel that could be drawn is between euthanasia in the Netherlands and the legalisation of abortion in England and Wales. Once reporting becomes standardized and consistent, regulations and oversight will become more effective, mitigating the likelihood of a descent down the much feared slippery slope. The Dutch statistics support the idea that medical professionals can act as a further safeguard in strengthening the protection on offer to the vulnerable. Following the legalisation of physician-assisted suicide in the Netherlands, the reports reveal the reporting of the practice increases significantly, meaning greater restrictions, regulations and oversight can be put in place to ensure the practice is conducted properly and safely.

Therefore, this demonstrates that the principle of patient autonomy should in fact be applied to the legal regulation of euthanasia. If the doctor can play a role of an independent, expert third party who can also be effectively reviewed and regulated, there is a possibility this will provide a suitable bridge between the freedoms of the individual and the interests of the state.

However, what must be acknowledged are the differing political contexts and governance methods between the Dutch and British jurisdictions. The Dutch approach clearly advocates giving greater weight to individual autonomy through reducing government influence and oversight; as the only true means to balancing state and patient’s autonomous rights. This could suggest that in order for patient autonomy to be applied to the legal regulation of euthanasia, the law has to follow the will of the people instead of dictating it to them. Keown expressed a fear of uncontrolled autonomy resulting in ‘disastrous consequences’[53]. Pereira highlights the tangibility of this expression. He discusses that “In 30 years, the Netherlands has moved from euthanasia of people who are terminally ill, to euthanasia of those who are chronically ill; from euthanasia for physical illness, to euthanasia for mental illness; from euthanasia for mental illness, to euthanasia for psychological distress or mental suffering—and now to euthanasia simply if a person is over the age of 70 and ‘tired of living’[54]. This highlights the fear that Fergusson expressed; in that allowing autonomy govern euthanasia will create an entity in itself that cannot be controlled. However, this assertion does not go far enough to displace Benatar’s slippery slope analogy. The initial act of legalizing euthanasia in the Netherlands was in response to concerns for autonomy, concerns which are shared in Britain. A desire to die is not universal; and one person’s reasoning behind their desire will not be the same as the next. Therefore, as Lyon explained, conditions are entirely subjective, and a desire to die cannot be explained or even to many understood; this is predominantly the reason why autonomy needs to be applied to the legal regulation of euthanasia, as one can only know what another is enduring if one has endured it themselves.

McCann expresses that the Dutch mode of governance has depoliticized the issue[55], collaborating the wishes of stakeholders (patients and family members) and medical experts in order to practice ‘good governance’. As a result, he feels the Dutch have developed a progressive and positive approach to the problem of state paternalism. An interesting observation however, is the stark contrast between England and the Netherlands in terms of their socio political approach to preserving autonomy. The Dutch approach sees the government taking a step back and allowing the involved parties control and regulate the situation. What could furthermore be considered is how case law would have panned out had it been decided with the context of the Dutch background. If the Nicklinson case had been approached using the Dutch system, in contrast to the deeply saddening outcome, there may have been a prospect for the involved stakeholders to come to an agreement without interference from the state; for him to be euthansised peacefully, and pain-free. Therefore, if Britain had a system similar to the Dutch; with safeguarding mechanisms employed to ensure the safe and ‘best interest’ practice of euthanasia;  the autonomy of individuals could be respected without compromising the agenda of the state.

Conclusion

In light of the abundance of academic literature demonstrating the deficit in UK law with regards to euthanasia, the principle of autonomy in Montgomery cannot prima facie be applied to the legal regulation of euthanasia, but would require revision and careful extension in order to fully reconcile it compatibly with the current legal framework. By demonstrating the merits of Raz’s biographical life argument and highlighting how it realizes the aims of the principles outlined in Montgomery, whilst also employing the compassion approach to disprove the slippery slope, it is evident that with careful attention to the interplay between all the requisite factors that govern the current legal regulation, and applying a careful interpretation of a patient’s best interests; the principle of patient autonomy can and should be applied to the legal regulation of euthanasia.

Bibliography

Table of Cases

Airedale NHS Trust v Bland [1993] 2 WLR 316

Dianne Pretty v DPP [2001] UKHL 61

Montgomery (Appellant) v Lanarkshire Health Board ( Respondent) [2015] UKSC 11

Nicklinson v Ministry of Justice [2012] EWHC 304 (QB)

R v Adams [1957] CrimLRev 365

R v Cox (1992) 12 BMLR 38

R v Moor (1999) Crim LR 2000 Jul 568- 590

Re A children conjoined twins: surgical separation [2000] 4 ALL ER 961

Re J (A Child) [2015] EWCA Civ 222

Re SA Vulnerable Adult with Capacity: Marriage [2005] EWHC 2942 Fam para 77

Sidaway v Board of Govenors of the Bethlem Royal Hospital [1985] A.C

W v M and others [2011] EWHC 2443

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[5] Dianne Pretty v DPP [2001] UKHL 61

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[7] Nicklinson v Ministry of Justice [2012] EWHC 304 (QB)

[8] R v Cox (1992) 12 BMLR 38

[9] R v Moor (1999) Crim LR 2000 Jul 568- 590

[10] http://www.medicaldaily.com/right-die-case-man-incurable-not-terminal-multiple-system-atrophy-seeks-right-414417

[11] Kirby M D ‘Informed Consent: What does it mean?’ J Med Ethics 92 69-75 1983

[12] Wolpe P ‘Ethics and complementary modalities Encyclopaedia of Complementary Health Practices’ Springer Publishing Co New York 1998

[13] Keown J ‘Euthanasia ethics and public policy: an argument against legalisation’ 2002

[14] W v M and others [2011] EWHC 2443

[15] Direction 9E of the rules of the Court of Protection 2007

[16] Mason, J.K. and Laurie, G.T. (2011) Law and Medical Ethics. Oxford: Oxford University Press.

[17] R v Adams [1957] CrimLRev 365

[18] Per Lord Donaldson MR pp 938E-F per Taylor LJ at p 943C

[19] Airedale NHS Trust v Bland [1993] 2 WLR 316

[20] Dworkin R ‘Life’s Dominion An Argument about Abortion Euthanasia and Individual Freedom’ New York Knopf 1993

[21] Mental Capacity Act 2005

[22]  Herring J ‘Protecting Vulnerable Adults’ Oxford Legal Studies Research Paper No 10 2010

[23]  Re SA Vulnerable Adult with Capacity: Marriage [2005] EWHC 2942 Fam para 77

[24] Keown J ‘Euthanasia ethics and public policy: an argument against legalisation’ 2002

[25] Health Care Anal. 2010 Jun;18(2):148-63. doi: 10.1007/s10728-009-0117-0. Epub 2009 Jun 9.

 

A logical analysis of slippery slope arguments.

Spielthenner G¹.

[26] Curr Oncol. 2011 Oct; 18(5): 206–207.

[27] Dan W Brock ‘A Critique’ 536

[28] 58 Chua-Eoan H ‘The life and Deaths of jack Kevorkian 1928-2011’ Time Magazine

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[34] Kant I. Grounding Metaphysics of Morals. Indianapolis: Hackett; 1993.

[35] Brassington I. Five words for assisted dying. Law and Philosophy 2008; 27: 415–44

[36] Velleman JD. A right to self- termination. Ethics 1999; 109: 606–28

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[40] Lyon, N. Protecting Patients’ Autonomy: Supporting the “Right to Die” (2015)

[41] Sjöstrand M, Helgesson G, Eriksson S, Juth N. Autonomy- based arguments against physician- assisted suicide and euthanasia: a critique. Medicine, Health Care and Philosophy 2011. In press.

[42] Davis MP, Davis DD, Smith ML, Cooper K. Just whose autonomy is it? Journal of Clinical Oncology 2001; 19: 3787–9

[43] Donchin A ‘Autonomy interdependence and assisted suicide: respecting boundaries/crossing lines’ Bioethics 2000

[44] Bartlett P ‘The Consequences of Incapacity’ Blackstone Press Ltd 1997

[45] Lewis P ‘Assisted Dying and legal change’ Oxford University Press 2007

[46] Holm S Edgar A ‘Best interest: a philosophical critique’ Health Care Anal 16 3:197-207 2008 PMID 18642084

[47] Fergusson, A: Triple helix – spring 2005 – Euthanasia – arguments from autonomy [pp4-5]

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[49] Fergusson, A: Triple helix – Euthanasia – arguments from autonomy [pp4-5] 2005

[50] Saunders P ‘Why Euthanasia should not be legalised’ Christian Medical Fellowship, 1995

[51] Van der Maas et al 1991, Van der Wal & Van der Maas 1996 Van der Wal et al 2003 Onwuteaka-Philipsen et al 2007

[52] Seale C ‘Written evidence to the Commission on Assisted Dying Hastening death in end-of-life care: A survey of doctors’ 2012

[53] Keown J ‘Euthanasia ethics and public policy: an argument against legalisation’ 2002

[54] Pereira J ‘Legalizing euthanasia or assisted suicide: the illusion of safeguards and controls’ Volume 18 No 2 2011

[55] McCann A ‘Free Movement of Euthanasia Services in Europe? Law and Governance Perspective’ 2012