A Jurisprudence of Ambivalence: Three Legal Fictions concerning Death and Dying
Savell, Kristin, Cultural Studies Review
The advent of artificial ventilation and other life-sustaining technologies has produced death scenes of a particular sort. When a person would rather die than endure these treatments, the death scene may be the subject of prior discussion, debate or demand. A person may insist that they no longer wish to live if there is no hope for improvement, or that they want doctors to remove the technology upon which their continued life depends. They might even request that withdrawal occur in one way rather than another. Accordingly, these death scenes usually require some planning, and they are necessarily contingent on the involvement and cooperation of others.
This article will explore the death scene following treatment withdrawal, drawing upon two cases: Ms B. v An NHS Hospital Trust1 and Brightwater Care Group (Inc.) v Rossiter.2 The former is the leading English decision in which a conscious patient's choice to die was upheld. The latter is the first such decision of an Australian supreme court.3 Both cases concerned middle-aged individuals who had suffered serious injuries that rendered them quadriplegic, though neither was terminally ill or dying. Both claimants were dependent on technology to support their basic life functions: Ms B. required permanent ventilation and Mr Rossiter could not ingest food and water other than via a tube inserted into his stomach.4 Both individuals found their quality of life unacceptable and had decided that they no longer wished to continue living.5
Although these cases were determined in accordance with well-established principles concerning consent to medical treatment,6 they were novel in important respects. Unlike earlier decisions concerning advance directives, these cases each involved a subject who was expressing a present, conscious desire to die and who was, through law, seeking to establish some agency in constructing their own death scene. Ms B. wanted to be sedated and to have her ventilator switched off so that she would die quickly and without awareness. Although Mr Rossiter faced a more protracted death from starvation, he requested that the PEG (percutaneous endoscopic gastronomy) tube remain in place so that he could still receive medication dissolved in water after feeding and hydration ceased. Both claimants requested that their death be brought about in quite specific ways, a feature which brings them into close proximity with culpable deaths such as assisted suicide or mercy killing.7 In this respect, the cases provide an opportunity to explore whether the law's account of these deaths as materially different from unlawful deaths, can withstand scrutiny.
This article identifies three legal premises that have been crucial in distinguishing the choice to die in the context of treatment withdrawal from unlawful assistance to die. These are: (i) a competent patient can refuse medical treatment for any or no reason even if it means they will die; (ii) the doctor's removal of life-supporting technology does not entail responsibility for the resulting death; and (iii) such deaths are natural deaths. I argue that these premises constitute 'fictions'8 or pretences in the sense that they do not reflect the complex realities associated with these death scenes. They do not, for instance, acknowledge the fear and uncertainty felt by patients who are unwilling to go on in the face of unyielding disability, the ontological anxiety produced by abject embodiment, the ambivalence experienced by some doctors about their agency in these deaths and the human orchestration involved in producing a 'natural' death. Nor do they capture the myriad ways in which law must negotiate or repress these complexities. The argument developed here is that when patients and doctors disagree about whether and how death should occur in the treatment withdrawal context, the legal premises become increasingly strained and the conceptual space created by law to distance these deaths from 'culpable' deaths is threatened. …