Euthanasia Under the Criminal Law
The object of this chapter is to examine the present state of the criminal law in the United Kingdom and other common law jurisdictions regarding the practice of active and passive euthanasia with the aim of ascertaining the potential liability of doctors for participation in these practices. Particular attention will be focused on the differential treatment of the law in respect of active and passive euthanasia. Despite the similarities between active and passive euthanasia in terms of intention and outcome, there are significant legal differences between the two, which, it is argued, give rise to questionable distinctions.
The distinction between active and passive euthanasia essentially rests upon the more general distinction between acts and omissions; active interventions as distinct from non-action or refraining from acting. The criminal law maintains a fairly rigid distinction between liability for acts which cause death on the one hand, and liability for omissions which cause death on the other. This has significant implications for the law regarding active and passive euthanasia. In analysing the criminal law in relation to euthanasia, it will therefore be necessary to examine criminal liability for both acts and omissions which cause death. This will be dealt with in parts I and II of this chapter respectively.
It should, however, be noted from the outset that the distinction between active and passive euthanasia and the underlying acts/omissions doctrine is most problematic and unsatisfactory. It will be argued in a later chapter that this distinction is of debatable moral and philosophical significance. Further, it will be shown that it is often difficult to maintain in practice. The practical difficulties in drawing the distinction in particular cases has been compounded by the widespread reluctance to characterize as criminal certain conduct regularly performed in medical practice. Two aspects of medical practice which are highlighted in this study are the switching off of artificial life-support and the administration of drugs for the relief of pain and other symptoms, which are known to be likely to hasten death. It will be demonstrated in a later chapter that this tendency to avoid labelling medical conduct as criminal, whilst readily understandable, has resulted in serious distortions in the interpretation and application of the