Euthanasia is an area in which the
Scottish legal system has managed to send one message, whilst behaving in a different way entirely. Despite this, legal authorities have remained clear on the issue; to wilfully take the life of a person, at their request, is to be guilty of
murder. Euthanasia, given its literal definition, means a gentle or easy death, however it has come to refer to deliberate steps taken by a doctor to end the life of a
patient. It can further be qualified into three distinct categories: that of
voluntary,
involuntary and
non-voluntary, referring to the degree of patient involvement in the decision-making process. The Scottish legal system remains, as far as voluntary and involuntary euthanasia are concerned, unrelenting. In the latter, however,
doctors can be assured of a degree of protection, both from
prosecution, by the
Lord Advocate, and from civil proceedings, following a ruling by the
Court of Session. This differs from the approach of the
Netherlands where a defence of necessity is provided, considerably a more effective technique than the confusing approach taken by the Scottish legal system.
The judicial stance on euthanasia in Scotland is this. Whilst taking ones own life is not regarded as a crime, deliberate intervention, with the express intention of ending the life of another individual, at the persons own request, or out of merciful motive, is to be guilty of murder. However, prosecutorial discretion is exercised on the part of the Lord Advocate, in refusing to authorise the prosecution of doctors who have acted under specific circumstances, to bring about the death of a patient suffering from a persistent, vegetative state, through the withdrawal of treatment. This would include withholding food and hydration. This approach vaguely echoes the approach of the Court of Session, where it was decided that to withhold treatment which had previously been the duty of a doctor, no longer violated the principle of the sanctity of life where no advanced directives existed to indicate the wishes of the patient and they had been in a persistent vegetative state for three years.
In practical terms, “it would be a most perilous doctrine to introduce into the law of Scotland, or of any civilised country, that any person was entitled to kill any other person at his or her request”. While sound in reasoning, in practice this argument can be questioned when looking at the approach of the Netherlands, where tens of thousands of people have had their lives shortened at their own request by medical professionals. There, the Penal Code provides a defence of necessity, typically only available to those who seek to save lives, to doctors who bring about an end to the lives of patients suffering to a sufficient extent (this is similar to the approach of Scottish courts to abortion prior to legislation). This would circumvent the issue of legalising homicide, while at the same time confronting the issue by adopting a clear message and approach, as opposed to the head-in-sand approach taken today. The ineffectiveness of this approach is highlighted by the approach of doctors, many of whom are now unwilling to perform euthanasia, or else have had to resort to less effective techniques such as suffocation for fear of prosecution, part of the reasoning behind the legislation of the area in Oregon. Failing to either condemn or condone euthanasia, the law would appear to have neglected its role as a deterrent, in not seeking to prevent a practice which it apparently prohibits.
As the decision not to prosecute is essentially an executive decision (the Lord Advocate being a member of the Scottish Executive), and given the unwillingness of the High Court to intervene on the issue, it can be conceived that the courts view the area very much as an area for legislation rather than decisions taken by judges. Therefore, given the opposition to euthanasia of medical bodies, it would appear that the law is unlikely to change its stance in the foreseeable future.
C.H.W. Gane and C.N. Stoddart, A Casebook on Scottish Criminal Law, 3rd Edition, W. Green & Maxwell, Edinburgh 10 at 42
T.H. Jones and M.G.A. Christie, Criminal Law 3rd Edition, Published 2003 by w. Green & Son Limited, Edinburgh
Somerville, Margaret A. Death Talk : The Case Against Euthanasia and Physician-Assisted Suicide. Montreal, PQ, CAN: McGill-Queen's University Press, 2002
accessed 23 February 2007
Keown, John. Euthanasia, Ethics and Public Policy : An Argument Against Legalisation.
Port Chester, NY, USA: Cambridge University Press, 2002.
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A.M. Johnston, J.D.D Hope, R.N.M MacLean, A.C.M. Johnston, Gloag and Henderson’s Introduction to the Law of Scotland, 7th Edition, 1969
British Medical Association Staff. Medical Ethics Today : The BMA’s Handbook of Ethics and Law (2nd Edition). London, , GBR: BMJ Publishing Group, 2003.
accessed 23 February 2007
Hillyard, Daniel. Dying Right : The Death with Dignity Movement. London, UK: Routledge, 2001 at 4
accessed 23 February 2007
HMA v Rutherford, 1947 JC1
Law Hospitals NHS Trust v Lord Advocate, 1996 SLT 848
Acts, Legislation and Penal Codes
Abortion Act 1967
Death With Dignity Act 2004 (Ore
gon)
Article 293 of the Penal Code (Netherlands)
Journal Articles
Lord Advocate’s Statement, 1996 SLT 867
Jeremy Purvis, A Right To End One's Own Life? SCOTLAND 2006 349. 233-234
accessed 23 February 2007
Websites
Department of Constitutional Affairs: “Definition of Terms”
http://www.dca.gov.uk/menincap/annex3.html
Scottish Executive, “Role of the Lord Advocate”
http://www.scotland.gov.uk/about/departments/LPS/roleoflordadvocate