Mr. Marty's Muddle: A Superficial and Selective Case for Euthanasia in Europe
Keown, J., Issues in Law & Medicine
32 J. MED. ETHICS 29 (Jan. 2006).
In April 2004 the Parliamentary Assembly of the Council of Europe debated a report from its Social, Health and Family Affairs Committee (the Marty Report), which questioned the Council of Europe's opposition to legalizing euthanasia. This article exposes the Report's flaws, not least its superficiality and selectivity
The Report is gravely flawed, not least because it overstates the arguments for legalization and downplays or ignores arguments against it. The Report claims that the rule of law supports legalization. However, just as the opening paragraph of Recommendation 1418 notes that it is the vocation of the Council of Europe "to protect the dignity of all human beings and the rights which stem therefrom," so too the rule of law affords protection to all citizens, recognizing their fundamental equality in dignity. Just as no one is above the law, so no one is beneath the law. A law permitting voluntary euthanasia would, for the first time, allow certain private citizens to kill other private citizens on the basis of the arbitrary, judgment, historically denied in western law and medical ethics, that they would be better off dead. In short, the rule of law, to which the arbitrary exercise of power is repugnant, not least the power of life and death, opposes, not supports, legalization.
The argument that there is a "striking divergence" between the law and medical practice and that the gap must be closed if respect for the rule of law is to be maintained is unconvincing. First, the assertion that there is a "striking" discrepancy between law and practice is controversial. Obtaining reliable data on the incidence of the offences of murder and assisted suicide by medical practitioners is, not surprisingly, difficult. The surveys cited by the Report allegedly demonstrating a "striking" discrepancy in countries where euthanasia and assisted suicide remain illegal must be read with caution.
For example, the Report pointed out that, according to a survey of UK doctors, almost 60% replied that they had been asked to hasten death, of whom 32% had complied. These are not insubstantial figures. However, the figures require some qualification. The 60% includes 14% who were asked to let the patient die "through deliberate inaction," which the survey defined as "passive euthanasia," and the 32% who said they had taken active steps to end a patient's life represented only 9% of all the doctors who had been sent a questionnaire. Nor did the survey ask how often euthanasia had been performed. Moreover, unlike the three comprehensive surveys into end of life decision making in the Netherlands carried out since 1991 by Professor van der Maas et al., the UK survey, as its definition of "passive euthanasia" indicates, did not consistently define "euthanasia" in terms of the intentional hastening of death, which may have led to some confusion; nor did the UK survey involve interviews with doctors, which Van der Maas found important in clarifying the thinking of his respondents in distinguishing euthanasia from other end of life decisions. Another UK survey, commissioned by the BBC and involving a sample of health professionals over twice the size of the survey cited by the Report, disclosed that only 4% had assisted in suicide, either by providing drugs or advice. …