Ponencia Anne Slowther
Anne Slowther, Warwick Medical School.
Published on: Mar 4, 2016
Transcripts - Ponencia Anne Slowther
Death with dignity: the debate in England
Associate Professor Clinical Ethics
Warwick Medical School
The concept articulated in the title of this conference, ‘death with dignity’ can have many
interpretations, which is of course why there is so much debate on a subject that at first sight would
appear to be uncontroversial. All participants in the debate will agree that death with dignity is a
good to be aspired to for everyone but what is not universally agreed is how death with dignity can
be achieved in different situations, and perhaps more fundamentally what it is we actually mean by
death with dignity. In this lecture I will attempt to identify and explain some of the arguments and
dilemmas that have informed discussion about death with dignity in England over the past twenty
years and to set this in the context of developing legal and professional regulation governing end of
life decision making.
A dictionary definition of dignity is the quality or state of being worthy of esteem or respect. This is
sometimes expanded to include self respect and not just the respect of others. The English
Department of Health has recently launched a campaign, ‘Dignity in Care’ to promote the concept of
patient dignity within all aspects of health and social care. The concept of dignity in this initiative
includes notions of respect, autonomy, privacy, and self worth
http://www.scie.org.uk/publications/guides/guide15/index.asp) . The elaboration of the concept
includes criteria that focus on patient independence, choice and self determination. This focus on
autonomy and self determination underpins the aims of organisations such as Dignitas in
Switzerland and ‘Dignity in Dying’, the main pro voluntary euthanasia organisation in the UK.
However not all people facing the end of their life are able to make autonomous choices. Many lack
decision making capacity because of their illness, their age, or their level of intellectual ability. It
would seem odd if the concept of death with dignity did not include these people so we perhaps
need to look further than autonomy in developing our ideas about what it truly means to respect
someone’s dignity particularly at the end of their life.
I will therefore start my overview of the legal framework on end of life decision making in England by
considering decisions regarding people who lack capacity before moving on to the current law and
political debate on end of life decisions made by capacitous individuals.
Early cases in English law on end of life decision making addressed the question of whether life
sustaining treatment should be withheld or withdrawn from a patient who was unable to make a
decision for him or her self. Several cases involved very young children and the judgements
focussed on the futility of the treatment and the degree of suffering that continued existence with
the treatment would inflict. Decisions in these cases tended to be guided by the opinion of the
medical profession as to whether continued treatment was in the child’s best interests. More recent
decisions have taken more account of parental views on the quality of life experienced by the child
and hence the assessment of the child’s best interests. Of interest is that there also seems to be a
greater recognition that an assessment of the child’s quality of life should be made in relation to that
individual child and not a generic conception of the quality of life expected by a healthy child of
similar age. This could be interpreted as a reflection of the increasing importance given to respect
for persons as unique individuals whatever their capacity. Treating with dignity in the absence of
autonomy. As Justice Hoffman put it when discussing the benefits of the life of a child with
myotonic dystrophy who required continuous ventilation and was only able to move the muscles in
‘It is impossible to put a mathematical or any other value on the benefits. But they are precious and
real and they are the benefits, and only benefits, that M was destined to gain from his life.’
http://www.bailii.org/ew/cases/EWHC/Fam/2006/507.html para 101‐2
The key legal case in England which set the law on withholding or withdrawing life sustaining
treatment in adults who lack capacity was that of Tony Bland. This was a young man who suffered
severe hypoxia during a major disaster that occurred at a football stadium in 1989 which led to him
being in a permanent vegetative state. In 1992 his physicians sought a declaration from the court
that it would not be unlawful to withdraw artificial nutrition and hydration, thus allowing him to die.
His family were in agreement with the physicians’ views. The case went to the highest court in
England at the time, the House of Lords, and several key points of law were decided in the
1. That artificial nutrition and hydration was a medical treatment.
2. That the sanctity of life principle was not absolute in English law.
3. That withdrawal or withholding of life sustaining medical treatment was lawful if
continuation of the treatment was not in the patient’s best interests.
The principle of best interests in English law was and remains the fundamental principle governing
treatment of people who lack capacity to make decisions about their own treatment. This was so
before the Bland case but in Bland their Lordships applied that principle to a case where
discontinuing treatment would result in death. As such they were recognising that there are
situations and conditions where the burden of treatment is so great and the quality of life
maintained by the treatment is so low that this outweighs the benefit of continued life. In
considering whether the treatment was in Tony Bland’s best interests Sir Thomas Bingham referred
to wider and less tangible considerations than pain and suffering.
‘An objective assessment of Mr Bland’s best interests viewed through his eyes would in my opinion
give weight to the constant invasions and humiliations to which his inert body is subject; to the desire
he would naturally have to be remembered as a cheerful, carefree, gregarious teenager and not an
object of pity…’
This statement seems highly relevant to the development of a concept of dignity for patients who
are in the dying process or who are being sustained by treatment without which their underlying
condition would lead to death. Airedale NHS Trust v Bland  AC 789
The Mental Capacity Act 2005
The principle of best interests as the legal requirement for treating people who lack capacity has
now been set in statue with the enactment of the Mental Capacity Act by the UK Parliament. The
Act sets out the following principles
A person must be assumed to have capacity unless it is established that he lacks capacity.
A person is not to be treated as unable to make a decision unless all practicable steps to help him to
do so have been taken without success.
A person is not to be treated as unable to make a decision merely because he makes an unwise
An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be
done, or made, in his best interests.
Before the act is done, or the decision is made, regard must be had to whether the purpose for which
it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and
freedom of action. Mental Capacity Act section 1
The Act considers decisions at the end of life and in particular the withdrawing or withholding of life
sustaining treatment. In the section on best interests it makes clear that a decision regarding life
sustaining treatment cannot be motivated by a desire to bring about death but acknowledges that it
can be made if it is in the patient’s best interests.
Where the determination relates to life‐sustaining treatment he (the person making the
decision)must not, in considering whether the treatment is in the best interests of the person
concerned, be motivated by a desire to bring about his death.
MCA section 4(5)
This reference to motivation on the part of the clinician is a reminder that in English law killing is
unlawful and that the law draws a distinction between intending to bring about death and acting in a
way that death is a forseeable but not intended consequence. It is however an interesting question
as to whether a clinician who makes a decision to withdraw feeding and hydration from a patient in
permanent vegetative state because it is not in the patient’s best interests to continue with the
treatment can be said not to intend that the patient dies when death will be a direct consequence of
The Mental Capacity Act also considers decisions regarding life sustaining treatment in its section on
advance refusals of treatment which I shall come to presently.
Thus for patients, either adults or children, who lack capacity English Law is fairly clear about end of
• The decision must be in their best interests
• Best interests is wider than just pain and suffering
• The decision must not be motivated by a desire to bring about death
• Withdrawing and withholding treatment are classified as omissions of treatment rather than
actions (an important distinction as we will see later)
• Artificial nutrition and hydration is medical treatment
Professional guidance for physicians from the General Medical Council and the British Medical
Association have reiterated these legal points and provided a professional framework for a decision
making process at the end of life.
General Medical Council. Guidance on withholding and withdrawing life sustaining treatment
(currently being revised)
Patients who have capacity
I will now turn to the legal and ethical debate in England regarding end of life decisions by people
who have capacity or who make an advance statement about their wishes before they lose capacity.
When a decision involves refusal of a treatment by a competent/capacitous adult the law is very
clear, and was re stated in a well publicised case in 2002. In this case a lady who had suffered a
spinal artery haemorrhage which had left her paralysed from the neck down and requiring
mechanical ventilation to breathe requested that her treating medical team disconnect her
ventilator, provide her with appropriate medication so that she did not suffer as she became unable
to breathe and so to let her die. Her clinicians refused to follow her instructions because they felt
that to do so would in effect be killing the patient, an act contrary to their duty as clinicians to
preserve life and thus against their ethical principles and code of practice. The patient’s mental state
was assessed by several psychiatric experts and she was found to be competent to make this
decision. The case was unusual in that it was the first time in England that a court had convened in a
hospital but the case was heard with full court attendance in a side room of the intensive care unit
where the patient was being cared for. The judge in this case, Justice Butler Schloss, re stated the
legal principle of informed consent, that any adult who had capacity (and adults in English law are
assumed to have capacity unless it has been demonstrated that they lack capacity) can refuse any
treatment, even life sustaining treatment, and that to treat someone who has not given consent to
such treatment would be a battery and liable to civil damages.
It would appear that respect for autonomy, a component of dignity, is enshrined in law and
overrides any public interest in maintaining life, provided the person making the decision has
capacity. As Lord Donaldson stated in the earlier case of Bland
‘This situation gives rise to a conflict between two interests, that of the patient and that of the
society in which he lives. The patient’s interest consists of his right to self‐determination – his right to
live his own life how he wishes, even if it will damage his health or lead to his premature death.
Society’s interest is in upholding the concept that all human life is sacred and that it should be
preserved if at all possible. It is well established that in the ultimate the right of the individual is
paramount.’ Airedale NHS Trust v Bland  AC 789 p112
The Mental Capacity Act has also made clear that this principle of respecting the right of the
individual to make decisions for him/herself holds true for decisions made in advance which are to
apply in the event of a person losing capacity, even when those decisions go against medical opinion
or the interests of society. Advance directives (or specifically in the Mental Capacity Act, Advance
Refusals of Treatment) are as binding, if they are valid and applicable to the situation, as if the
person was making a contemporaneous decision about his or her healthcare. The requirements for
an advance refusal of life sustaining treatment are:
• The person making it must be over eighteen
• The statement must be written, signed and witnessed
• The statement must specify that it relates to life sustaining treatment
If the criteria are fulfilled then a clinician providing treatment contrary to the directive would be
open to prosecution in battery.
English law seems to be making a clear statement that the principles governing treatment at the end
of life are:
1. Capacitous choice must be respected.
2. A valid advance refusal is the same as a capacitous choice and must be respected.
3. If the person lacks capacity the decision must be in the person’s best interests.
4. Best interests must take account of the persons past and present wishes, beliefs and values
(MCA section 4(6))
Acts and omission
Having noted the emphasis on patient autonomy and patient views informing decisions about best
interests it is interesting to note the different approach of English law when patients request active
measures to end their life or assistance from their physicians in bringing their life to an end. The year
before Ms B (the lady with spinal artery haemorrhage) requested that her doctors remove her
ventilator support another patient also sought help from the courts to allow her to end her life when
her disease had reached a stage that she no longer wished to continue living. Diane Pretty was a lady
with motor neurone disease whose condition was deteriorating to such an extent that it was not
possible for her to take her own life even if she wished to. She therefore sought a declaration from
the court that if her husband assisted her in taking her own life he would not be prosecuted under
the Suicide Act1961 which prohibits aiding and abetting suicide. Mrs Pretty argued that refusal to
provide this reassurance was a breach of her rights under articles 1, 2 and 8 of the European
Convention on Human Rights, a right to life, prohibition of torture, and a right to a private and family
life. Her case was rejected by the House of Lords in England and she appealed to the European Court
who also rejected her claim that her rights had been denied under the convention. The court ruled
"It did not appear to be arbitrary for the law to reflect the importance of the right to life, by
prohibiting assisted suicide while providing for a system of enforcement and adjudication which
allowed due regard to be given in each particular case to the public interest in bringing a prosecution,
as well as to the fair and proper requirements of retribution and deterrence."
Mrs Pretty’s autonomous wish was to have control over her death and to die at a time of her
choosing. Her husband’s autonomous wish was to assist her in this by administering the medication
that would bring about her death. The courts judged that her right to self determination in this
respect was constrained by the public interest in the importance of the right to, or sanctity of, life.
This seems to be at odds with the statement by Lord Donaldson in Bland that society’s interest in
preserving life gives way to the individual’s right to self determination.
The key difference on which English law appears to turn with regard to end of life decisions and
respecting patient autonomy is the distinction between an act and an omission. Deliberately
performing an act, for example giving an injection, which results in the person’s death is unlawful
and would be regarded as murder. However omitting to provide a treatment, for example
withholding or withdrawing artificial nutrition, which results in a person’s death may be lawful if it is
thought to be in the patient’s best interests. If a patient requests that life sustaining treatment be
omitted then her wishes must be respected and it would be unlawful (a battery) to continue to treat
her. If a patient requests that her physician performs an act that brings about death her wishes
cannot be respected and compliance with them would be unlawful (murder or assisted suicide
depending on the act performed).
Suicide tourism and the English legal response
Diane Pretty died in England without her husband assisting her death. However since 2001, 115
people have travelled from the UK to a Swiss clinic (Dignitas) in order to have an assisted death. To
date there have been no prosecutions of relatives who have travelled with them but there have
been police investigations. Several cases have made news headlines for example the case of Daniel
James, a 23 year old rugby player who was paralysed from the neck down in a sporting accident.
These cases have focussed the debate on the legal position of those who travel to Switzerland to
support their loved ones in the act of suicide. The fact that no prosecutions have taken place does
not mean that they will not do so. This year another lady, Debbie Purdy sought clarification of the
law on this issue. Ms Purdy has multiple sclerosis and although not near death or contemplating
assisted suicide at present sought clarification on whether her partner would be prosecuted if he
assisted her to commit suicide when her condition had deteriorated and she decided to end her life.
She lost her case in the High Court and Court of Appeal but in July 2009 five Law Lords rules that the
Director of Public Prosecutions must specify when he would prosecute in such cases. They cited
Article 8 of the European Convention on Human Rights as supporting her right for respect for a
private life which included deciding how she wished to spend her dying days. This decision was
hailed as a victory by supporters of assisted dying in the UK while opponents said they would seek
legal advice in an attempt to overturn it.
In September 2009, in response to the Law Lord’s ruling in the Purdy case, the Director of Public
Prosecutions set out new guidance in this area. The guidance sets out 16 factors that would be in
favour of a prosecution for assisted suicide. These cover issues such as whether the person
committing suicide had capacity, whether there was any coercion, or whether the person assisting
had assisted other suicides. There are a further 13 factors listed as mitigating against prosecution,
including whether the person committing suicide had a terminal illness or severe disability with no
likelihood of recovery, whether the person assisted was wholly motivated by compassion and
whether the person committing suicide had expressed clear and settled views on the matter. The
focus is very much on ensuring that the decision to commit suicide is a fully informed autonomous
decision and that the act of assistance is a unique act motivated by compassion and undertaken by
someone with a close relationship with the person committing suicide. This would rule out physician
assisted suicide as an example where prosecution might not be considered in the public interest. The
guidance also makes explicit that active euthanasia is illegal.
The views of parliament
In 2006 Lord Joffe presented a Bill to parliament that would have legalised physician assisted suicide.
The Assisted Dying Bill set out criteria under which it would be legal to prescribe a lethal injection for
a patient to take in order to end their life. These included a requirement that the person had
capacity, was not depressed, had less than six months to live and was suffering unbearably, that a
second physician had examined the patient, and that the patient had been offered appropriate
palliative care measures. The Bill sparked heated debate both within and outside parliament which
was essentially polarised between an argument for individual freedom of choice on the one side and
an argument for protection of the vulnerable on the other side. Opponents of the Bill used the
‘slippery slope’ argument to claim that any movement in the law to allow physician assisted suicide
would put pressure on vulnerable patients, the elderly and those with disabilities, to take their own
life. The public interest in protecting the vulnerable was thought to outweigh the individual interest
of self determination. Both sides would consider that they are in favour of death with dignity. Public
opinion, as judged by polls, was divided and the British Medical Association voted against physician
assisted suicide. The Bill was blocked in the House of Lords by 48 votes.
In 2009, following the case of Debbie Purdy, an amendment was tabled to the Coroners and Justice
Bill that was going through parliament. This amendment would have removed the threat of
prosecution from those who go abroad to support someone who commits suicide. The amendment
was defeated by 194 votes to 141.
The debate on assisted suicide continues in the UK. It is likely that a new Bill will be put before
parliament in the not too distant future. In the meantime patients continue to travel to Switzerland
to seek death. Patients who have capacity, whether they are vulnerable or not, can continue to
request withdrawal of life sustaining treatment or to refuse its initiation.
A recent case has sparked further debate on end of life decision making. A 26 year old woman with
mental health problems took poison 3 days after writing an advance refusal of treatment stating that
in the event of her taking the poison she did not want doctors to treat her except to relieve any pain.
Doctors at the admitting hospital complied with her wishes and she died. This case has prompted
calls for a review of the law on advance directives and the extent to which a person has a right to
make decisions that result in her death.
The story continues......