Law

Questions have been raised as to the justification of laws that disallow euthanasia and assisted suicide. Is it not hypocritical that by giving a patient lethal injection, a doctor is found guilty and as having engaged in an unlawful activity while a doctors discontinuation of life support leading to the death of a patient is considered legal as long as heshe does not breach the duty he owes to the patient. It is on this basis that Prof. Glanville suggested that a doctors reason for switching off a life support machine is an omission to struggle and not an act. He continues to state that this omission should not be considered a breach of the doctors duty as the doctor is under no obligation to continue pursuing a hopeless case.

In his book, Emanuel classifies the medical decisions that could eventually lead to death. His categories are based on the ability of the patient to consent, and the physicians intent and action. The categories include voluntary active euthanasia, involuntary active euthanasia, non-voluntary active euthanasia, terminating life sustaining treatment, indirect euthanasia and physician-assisted suicide.

Voluntary active euthanasia
This is the intentional medication administration or even other treatment forms that result to death of the patient. However, for it to be considered voluntary, the patient must have requested and fully consented to the action.

Involuntary active euthanasia
Unlike voluntary active euthanasia, in this case, the drug or other intervention is intentionally administered with the aim of causing a patients death without his explicit request or his fully informed consent.

Non-voluntary active euthanasia
This refers to the Intentionally administration of medications as well as other forms of intervention to cause a patients death under such circumstances that the patient is incompetent or not mentally stable to make such request e.g. a patient in a coma.

Terminating life-sustaining treatments
This refers to cases where medications that are meant to sustain the life of a patient are withdrawn or withheld leading to his death.

Indirect euthanasia
This refers to the administration of narcotics or other forms of medication with the intent of relieving pain knowing quite well that their incidental consequences include respiratory depressions that eventually lead to a patients death.

Physician-assisted suicide
This term is applicable in circumstances where a physician despite having knowledge that patient intends to use his prescription to commit suicide goes ahead and provides the medication
The topic of euthanasia or assisted suicide has thus proved critical and confusing. It is important that both the proponents and the opponents of legislation on this matter understand factual situations that lead to such instances. Lack of facts in matters and circumstances that lead to euthanasia raises the question as to whether the incoherent and morally irrelevant laws have failed to properly address the line that exists between the lawful and unlawful practices that result into intentional killing of patients.

In Europe, Netherlands became the first country to make a landmark legislation that legitimized euthanasia and assisted. While other countries followed suit, UK laws still prohibited euthanasia and assisted suicide in entirety. As per the English law, positive euthanasia is said to have occurred upon intentional administration of treatment to take away life. However, the recent rulings have proved otherwise and many have seen as a direction towards its legitimization.

The high courts decision to allow doctors to switch off the life supporting machine used to sustain Anthony Blands life has been subject to a variety of interpretations. This case has been termed as the leading euthanasia case in the UK. Having been injured in a stadium disaster, he was in a persistent vegetative state for three years before the court allowed for the turning off of the machine.

Another case that elicited legal medical and ethical debate across the UK was the Diane Pretty case. Diane lost cases both in the British Court and the European Court of human rights in 2002. She sought that her husband be permitted to administer her lethal injection morphine that would have ended her suffering. Surprisingly the European court refused to intervene and the UK court condemned the act without looking into the reasons.

Questions then are asked whether subjecting somebody to immense pain through denial of his plea to end his life, is not a violation of his right. The 1948, UN human rights declaration stresses the right to life of humans but then so does it give provisions for other human rights. Could this then be termed as a conflict of law While blanket legislations that allow euthanasia and assisted suicide may be considered as allowing physicians to administer lethal injections to their patients, it is important that legislations distinguish clearly when and how euthanasia can be practiced.

A clear distinction must be drawn between legitimate and illegitimate life ending practices. Laws meant to protect life must not be used to suppress other rights. Religious institutions too must look into the moral values of denying euthanasia rights and consequently let individuals undergo massive suffering or even deny another person life. Most notable has been the Catholics non-flexible stand.

This is enshrined with the churches recent version of catechism which states that
Everyone is responsible for his life before God who has given it to him. It is God who remains the sovereign Master of life. We are obliged to accept life gratefully and preserve it for his honor and the salvation of our souls. We are stewards, not owners, of the life God has entrusted to us. It is not ours to dispose of.

This assertion fails to take note of some grave situations that may warrant the same, take an example of K. Venkatesh in India whose organs would have helped save another persons life given that his was destined to end soon.  For proper legislations that strike a balance between circumstances that call for such an act, a deeper analysis other than the appearance of the words should be effectively conducted.

This paper looks into possible litigations regarding Lolas case including parental right claims, breach of duty, negligence as well as confidentiality and privacy rights.

Surrogacy issues
Surrogate motherhood is an agreement between an adopting couple and an agency or a surrogate mother. Such agreements, whether negotiated privately or done through an agency are considered legal. The surrogacy act fails to provide for legal basis for enforcement of surrogate arrangements. However, HFEA act, 2008 gives provisions under which persons may seek parental orders.
In A v. C 1985 FLR 445, emphasis was placed that in cases where both parties have blood relations to the child, then no sides rights should be regarded as superior to the other. The precision within the childrens rights requires the caught to only consider that childs welfare and no weight should be given to claims for rights of either side. It was envisaged that given both parties were parents as provide for within the HFEA, no side could claim rights based on the same.

Zac and Alexia meet the required condition which allows parentage rights to include circumstances where the gametes of the husband or the wife, or birth are used to enhance the creation of an embryo carried by the surrogate mother. HFEA 2008 stresses that having met the conditions stipulated within the article the applicant should apply for parental rights. On this basis then Zac and Alexia can start the case on a level ground as Lola with equal rights to the child. Given the fact that both sides have blood relation to the child, Alexia and Zac cannot use this to their defense. However, they may seek the intervention of the childs act to consider the welfare of the baby.  They can hold the claim that the child needs to grow within a family environment rather than with a single mother. Financial capability of Lola to take care of the child can also be put to question in comparison to Alexia and Zac. In apparent reference to the childrens act, they can ask the court to consider the childs welfare and also financial stability for proper upbringing. Lolas deceit can be used to her disadvantage in seeking the child custody.

Negligence
For negligence a valid negligence case, several conditions must be met. These include the defendant must have owed the claimant a duty of care e.g. a surgeon to a patient. Secondly the claimant must have broken the duty of care owed and lastly damage deemed worthy of compensation by the law must have been suffered by the claimant as a result of the broken duty of care. Employees have an obligation to take responsibility for irresponsible actions of their employees while at work. Likewise hospitals are liable for its employees negligence acts while at work. Medical negligence thus does not only revolve around a doctor or a nurse involved but the hospital too bears responsibility for such actions. A hospital owes its patients a duty of care by virtue of its position of life preservation. This duty of care extends to its employees too who attend to the patients either directly or indirectly. For instance a doctor owes the patients he is attending to, a duty of care as his failure could result to loss of life. However, skilled personnel have a standard duty of care they owe to their patients. Legally, they are required to meet the minimum set threshold required of their profession and failure to meet this is a failure to observe the expected standard duty of care.

Additionally, it is important to note that every institution must be held liable for the conduct of its employee. Cassidys case presented such a question as to whether the hospital could be held liable for an incompetently performed operation. It was upheld in the ruling that both the hospital and the surgeon were liable. The hospital was found liable as a result of its employees misconduct while the surgeon was liable for failure to meet the standard duty of care he owed to his patients.

In another case too, Hertfordshire health facility as heavily fined based on the courts ruling that as a masters of its employees, it was vicarious liable for the employees negligence. Likewise in Wilsher v Essex Area Health Authority case, the defendant hospital was found negligible for through the action of a junior inexperienced doctor who negligently administered excessive oxygen that resulted to the childs blindness. In Bolam vs. Friern Hospital management committee, the physicians breach of duty of care was weighed based on the required threshold set by the standard regulatory body of the profession.

Causation but for test, concerns the legal tests regarding remoteness, causation and foresee-ability in a negligence tort. It stresses the need for a factual link between a defendant fail to take an appropriate action and the result was a damage sustained by the claimant. The damage must have been reasonably foresee-able if appropriate action not taken. In Barnett v Chelsea  Kensington Hospital Management Committee case it was held that even had the doctor conducted the test little would have been done to save the person who done hence the doctor could not be held liable.

Lola was owed a duty of care by Freeland NHS and likewise a standard duty of care by Dr. Newman. Dr. Newman cannot argue based on his experience, as being a qualified doctor he is expected to work within the set threshold that any qualified doctor should work. By failing to meet this threshold, he has failed in his standard duty of care and is liable for a case of negligence. The hospital on the other hand has failed in its duty of care through its employees negligence and is liable for a fine that may be deemed appropriate to the level of caused on Lola.

Confidentiality
Confidentiality is an important aspect in all spheres of life. The law strictly disallows breach of an individuals confidentiality unless the reasons for such breach can be found within the law. Patients information is supposed to be protected to avoid betrayal of the trust that a patient puts on the doctor.  Article 8 of the European Convention on Human Rights now incorporated in UK law by the Human Rights Act 1998 and the Data Protection Act 1998, stress the legal aspects of confidentiality. The data protection act allow information to be divulged if the patient consents to it, in protection of the interests of the whose consent cannot be obtained or the consent cannot be reasonably obtained yet it is vital for the patients interest, or in instances where the information is passed from one doctor to another both of whom are bound by the same duty of confidentiality. Additionally the police and criminal evidence act, 1984 and Public Health (Control of Disease Act), 1984 and Public Health (Infectious Disease) regulations, 1988 may warrant release of information to prevent crime and for health purposes respectively.

Campbell v Mirror Group Newspapers Ltd case presented a similar case scenario where information regarding Campbells rehabilitation was published in a local daily without her consent. The court, after weighing factors that could warrant such publications, the freedom of expression inclusive held the decision that MGN had breached his confidentiality and appropriately fined the news daily.
Dr Newman and the publishing newspaper have infringed on confidentiality rights of Lola, Zac and Alexia by revealing information that is truly private to their lives and arrangement and hence not intended for the public. Not justifiable position for their actions can be found within the law. Dr. Newton has in the process also breached his expected professional ethics as stipulated within the GMC guidelines. He has thus breached both his professional ethics conduct as well as the privacy owed by him to his patient Lola. Lola can therefore sue Dr. Newton for damages compensation resulting from his breach of privacy and confidentiality as enshrined with the human rights act and the data collection act. The local daily has also breached Alexia, Zac and Lolas privacy rights through their irresponsible use of the freedom of expression thus both the reporter and the local daily can face legal suite form Zac, Alexia and Lola.

In conclusion its important to review the legal claims that may arise from this arrangement.  First, Lola can seek compensation from Freeland NHS resulting from Dr. Newtons negligence. Secondly, Zac can sue Lola for the childs custody and lastly, Zac, Alexia and Lola can sue for damages from the local daily for breach of privacy rights and Dr. Newton for professional misconduct and breach of privacy rights. The success of these litigations depends on the ability to prove that in deed their rights were violated.