Dear Readers,
Sorry for the intermittent posting, as the law students among you will know this is a very busy time of year on the BPTC. Revising for BSB exams, non-gateway pupillage applications and trying to fit in all my pro-bono commitments.
As some of you may know since September 2015 I have been volunteering as a Vocalise debate mentor. This involves going into prisons across London and teaching prisoners how to debate and express themselves in a non-violent, non- threatening manner. This has by far been the most rewarding voluntary placement of my life so far and so I thought I would share with you all the top 5 things I have learnt.
1. Debating is vital- as much as I love debating personally I did not realise how important it would be for prisoners. It was not just about debating current affairs or what you would do if you were the last human on Earth, it is about giving the voiceless a voice, giving people who have given up on the outside world and themselves freedom within the confines of the prison walls, to feel like they matter. The whole experience was about prisoners being heard and feeling 'normal' and part of the world again. This for me made this a unique and profound experience.
2. Prisoners are people too- as much as this sounds obvious, I did not expect the emotional reactions in prison to be as varied as they were. I am now acutely aware of the reality of prison life. Prisoners know how people in the outside world feel about them. Prisoners feel outcast, rejected and as if the people who live in society want to take their rights away. This saddened me deeply and has made me decide that I must do more to help the prison community in future.
3. Prison is a community- and no I don't mean just in the 'Orange is the new black' sense. Prisoners are aware that they have been segregated and may never be accepted by society again. This creates an intense bond within the prison community that in some cases overrides gang loyalties. I think there is a lot the outside community can learn from the way prisoners remain loyal to one another, form a great sense of camaraderie and remain aware of their position within the outside world.
4. People outside of prison take way too much for granted- seeing people incarcerated taught me to value the smallest things in life. I can walk outside when I want, I can visit family and friends whenever I like and, within the confines of the law, I have total freedom. This is something that I feel people on the outside do not fully appreciate. Yes, there are problems in the world, no you cannot do WHATEVER YOU WANT but you can, within wide restrictions, move where you want, see whomever you want and say how you feel. In prison this is different, not only are you physically prevented from escape by the prison walls but you are pigeonholed into thinking about your life in a certain way. In prison, you cannot see your family when you want, you cannot say whatever you want because you know there are always people monitoring you. There is very much a Benthamite feeling in prison, you always feel as if you are being watched even though you know it is impossible for prison guards to see where you are 24 hours a day.
5. Law students are blessed- I had no concept of how much prisoners would appreciate the outside contact. I was expecting to be the enemy, especially as an aspiring barristers. The truth is I was not. These people were so humbled that law students had bothered to give up their time to speak to them and more importantly to listen. This truly staggered me. I have never felt more privileged or more of a disappointment. I learnt that I really matter and that despite my concerns about getting pupillage and being good enough to serve my future clients, I can make a difference. The experience taught me never to take my position for granted, never to complain about my workload and never be cynical about this world of almost total freedom that we are blessed to be allowed to live in.
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Friday, 29 January 2016
Monday, 21 September 2015
Billion dollar baby
This week it came to light that the UK government may have the power to force football's illustrious Premier League to distribute more cash to the sport’s grassroots, albeit such a move could be in breach of world governing body Fifa’s policy of not allowing government interference in the beautiful game.
John Whittingdale, the minister for culture, sport and media, told a House of Commons committee on the 16th September that the Premier League must give more of its huge profits to lower league clubs and grassroots teams.
He said: “The Premier League is enjoying a complete bonanza now. There is a huge amount of money coming in but the proportion of that that reaches the lower divisions and the grassroots in particular is still very small. Should they be doing more? Without any question.”
When he was questioned as to whether the government could intervene, he said: “If the Premier League absolutely refuses to increase the amount of money that passes down through the system to the benefit of grassroots sport, then I think we would certainly look at what options we have available to us to ensure that is the outcome. I hope that can be avoided. It would be perfectly possible for the government to intervene to achieve that outcome, maybe through a levy.”
This seems to be a key example of transnationalism in modern day law. The idea that a seemingly independent body like FIFA could be both above and below the UK government in terms of financial rule making in football. In short the government does have the legal power to make FIFA distribute profits to grass roots teams but FIFA rules explicitly refer to the prevention of government intervention in football.
Given FIFA's tarnished reputation since the world cup bid fixing scandal earlier this year it will become immensely difficult for FIFA to hide from the fact that much of its multi-billion pound profit sheet is not being spent on developing the sport.
Back in May, the Premier League pledged to share at least £1 billion of its huge UK TV rights deal with lower levels of the game, claiming that such a contribution is “unprecedented in world sport.”
The Premier League really suprised everyone when it sold live rights to Premier League fixtures to Sky and BT Sport for a whopping £5.136 billion. Since then the Premier League has been under pressure to distribute its wealth down towards the grass roots tiers of English football. Under this new pledge over £1billion will go towards grassroots football, match day experiences and paying all staff a 'living wage'
Richard Scudamore, the executive chairman of the Premier League, said of the payment amounts to £50 million per member club: “The clubs have always stepped up to the plate when it comes to sharing their success. They appreciate that the development of the Premier League is contingent to a high degree on continued levels of passionate support and a vibrant football pyramid.
“These are unprecedented levels of redistribution in world sport, let alone football, which will deliver long-term progress for English football whether you are a fan, lower league club or involved in the grassroots.”
Details of the Premier League’s future financial contribution to the lower levels of English soccer have still to be finalised as the UK television deal is subject to an investigation by Ofcom which was prompted by a complaint by Virgin Media, about the selling of broadcasting rights. However, the Premier League can expect a further windfall from other domestic rights and international rights.
Business advisory firm Deloitte said recently that total broadcasting income in the next three-year cycle could be as high as £8.5 billion.
Overall, this is a very interesting development in the world of transnational law and the intricacies of the hierarchical relationship between European governments and FIFA are slowly being bought out of the shadows. It is hoped that stories like this will bring a new generation of legal, footballing and property right students into the big issues of the IP world and into the murky waters of transnational law.
For further information on the topics covered in this article please see the following sources:
Cotterell ‘Spectres of Transnationalism: Changing Terrains of Sociology of Law’ (2009) 36 Journal of Law and Society 481-500.
http://www.theguardian.com/media/2015/sep/18/premier-league-rights-battle-between-sky-and-bt-harming-uk-tv-industry
http://www.bbc.co.uk/sport/0/football/27732437
http://www.solicitorsjournal.com/news/commercial/company/music-and-football-industries-ramp-protection-ip-rights
http://www.mondaq.com/mexico/x/123054/Trademark/Sports+And+IP+The+Case+Of+The+Fifa+2010+World+Cup
John Whittingdale, the minister for culture, sport and media, told a House of Commons committee on the 16th September that the Premier League must give more of its huge profits to lower league clubs and grassroots teams.
He said: “The Premier League is enjoying a complete bonanza now. There is a huge amount of money coming in but the proportion of that that reaches the lower divisions and the grassroots in particular is still very small. Should they be doing more? Without any question.”
When he was questioned as to whether the government could intervene, he said: “If the Premier League absolutely refuses to increase the amount of money that passes down through the system to the benefit of grassroots sport, then I think we would certainly look at what options we have available to us to ensure that is the outcome. I hope that can be avoided. It would be perfectly possible for the government to intervene to achieve that outcome, maybe through a levy.”
This seems to be a key example of transnationalism in modern day law. The idea that a seemingly independent body like FIFA could be both above and below the UK government in terms of financial rule making in football. In short the government does have the legal power to make FIFA distribute profits to grass roots teams but FIFA rules explicitly refer to the prevention of government intervention in football.
Given FIFA's tarnished reputation since the world cup bid fixing scandal earlier this year it will become immensely difficult for FIFA to hide from the fact that much of its multi-billion pound profit sheet is not being spent on developing the sport.
Back in May, the Premier League pledged to share at least £1 billion of its huge UK TV rights deal with lower levels of the game, claiming that such a contribution is “unprecedented in world sport.”
The Premier League really suprised everyone when it sold live rights to Premier League fixtures to Sky and BT Sport for a whopping £5.136 billion. Since then the Premier League has been under pressure to distribute its wealth down towards the grass roots tiers of English football. Under this new pledge over £1billion will go towards grassroots football, match day experiences and paying all staff a 'living wage'
Richard Scudamore, the executive chairman of the Premier League, said of the payment amounts to £50 million per member club: “The clubs have always stepped up to the plate when it comes to sharing their success. They appreciate that the development of the Premier League is contingent to a high degree on continued levels of passionate support and a vibrant football pyramid.
“These are unprecedented levels of redistribution in world sport, let alone football, which will deliver long-term progress for English football whether you are a fan, lower league club or involved in the grassroots.”
Details of the Premier League’s future financial contribution to the lower levels of English soccer have still to be finalised as the UK television deal is subject to an investigation by Ofcom which was prompted by a complaint by Virgin Media, about the selling of broadcasting rights. However, the Premier League can expect a further windfall from other domestic rights and international rights.
Business advisory firm Deloitte said recently that total broadcasting income in the next three-year cycle could be as high as £8.5 billion.
Overall, this is a very interesting development in the world of transnational law and the intricacies of the hierarchical relationship between European governments and FIFA are slowly being bought out of the shadows. It is hoped that stories like this will bring a new generation of legal, footballing and property right students into the big issues of the IP world and into the murky waters of transnational law.
For further information on the topics covered in this article please see the following sources:
Cotterell ‘Spectres of Transnationalism: Changing Terrains of Sociology of Law’ (2009) 36 Journal of Law and Society 481-500.
http://www.theguardian.com/media/2015/sep/18/premier-league-rights-battle-between-sky-and-bt-harming-uk-tv-industry
http://www.bbc.co.uk/sport/0/football/27732437
http://www.solicitorsjournal.com/news/commercial/company/music-and-football-industries-ramp-protection-ip-rights
http://www.mondaq.com/mexico/x/123054/Trademark/Sports+And+IP+The+Case+Of+The+Fifa+2010+World+Cup
Friday, 21 August 2015
Need a kidney? Try facebook!
Recently it was reported that Facebook had failed to take
down organ adverts whereby customers in need of an organ could buy organs
online. Not only is buying and selling both cadaveric and living organs illegal
in the UK[1] ,but it is also an offence to
publish or advertise for sale of an organ punishable by 51 weeks in prison. In this
article I am going to suggest that this should not be the case and that we should
in fact be able to buy organs in a structured and monitored organ market. I
propose that the purchase of cadaveric organs should be legalised but not the
purchase of living donor organs. In the following paragraphs I am going to explain: firstly
what the law is on these matters and why it is illegal to pay for cadaveric
organs, secondly I will explain why paying for cadaveric organs is a good idea
and why some of the points against purchasing cadaveric organs are unjustified,
thirdly I am going to explain why the law should be changed to allow payment
for cadaveric organs but not living organs and finally I will outline by
proposal for a new system whereby cadaveric organs can be paid for morally and
efficiently.
The law
The main
statute in this area is s32 HTA 2004. Which states that it is illegal to give monetary
reward in return for a living or cadaveric organ but that payment to the
hospital in money or money’s worth is not the same as a reward if it is to
cover the costs of the transplant and any expenses in connection with
transporting, storing, removing or preserving the material are not deemed to be
a reward and also that payment of the donor’s expenses and compensation for
time off work is not a reward.
The reason this
is the law[2] is that it is deemed that
it prevents the exploitation of poor organ donors who are willing to sell
organs and risk their health in order to make money, to prevent the
commodification of the human body and to maintain a level of altruism within
the organ donation system. In the next section I will outline why these
justifications are erroneous and why it would be better if we could create an
organ market whereby cadaveric organs are bought and sold in a structured and
closely monitored way.
We should not be allowed to pay for
cadaveric organs because it involves the commodification of the human body
This is the
point often raised by anti-organ payment ethicists, it appears to be a strong
argument against payment for cadaveric organs but it is not. English law
frequently commodifies human body parts and emotions. For example tort law
literally puts a price tag on different injuries and awards damages for broken
or lost limbs and emotional trauma.
Paying for cadaveric organs takes the altruism
out of the organ donation system
Again, prima
facie this seems like a logical and strong argument however, Harris[3] argues that payment
does not negate altruism- more so with cadaveric donors as they would not
benefit from the money. Harris explains brilliantly that doctors are all altruistic and provide care and attention for those in need
however no one ever suggests that these roles are less altruistic because the
people performing them are paid. This is a very strong argument for paying for
cadaveric organs. I suggest that we should pay the relatives and the estates’
of the deceased organ donors to recognise the altruistic nature of their donation and so appreciate of the massive
emotional trauma that the families of the deceased must go through knowing that
their deceased relative is having their organs removed for donation.
Payment for organs exploits the poor
In her very informative
article Nancy Scheper- Hughes[4] argues that vulnerable,
poor donors who have no real choice but to donate are exploited by systems
across the world, such as in Iran, where organs can be paid for. I must point
out here that I agree with this point however I would like to make two further
points. Firstly the issue of exploitation could be solved with a regulated
market which Erin and Harris[5] suggest could involve the NHS
paying donors using money that would be for used for medical alternatives to
transplantation such as dialysis and secondly, this is why I suggest that only
cadaveric organs should be purchasable because then the donor is not making the
choice to donate based on their current financial situation but instead as a
good will gesture to help create financial stability for his/her family in the
future. If one did want to argue that living organs should be allowed to be
bought and sold also, one could even suggest a deontological argument whereby
that because living donors have rights over their bodies they should be able to
have the right to sell organs. The reason that I have chosen to argue only for
the right to sell and buy cadaveric organs however is because I believe that
the pressure of families on living donors is already too intense and that
adding money into the equation will only increase pressure on living donors and
may unduly influence donors decisions to donate organs whilst they are alive. Also as Goyal[6] argues if poor living
donors sell organs this will not actually help their financial situation
because if they are too ill to work after, for example, their kidney is removed
or even later in life due to the weaknesses associated with living with one
kidney then they will lose earning that may amount to an equal value to or more
than that of the organ.
Why cadaveric organs should be eligible
for monetary purchase
There are 3
main reasons why cadaveric organs should be able to be purchased:
- It will help reduce the organ shortage and save lives.
- The altruism of cadaveric organ donation is actually increased with payment because the deceased donor will have altruistically donated an organ and also altruistically insured some money for their estate that will support their family in future after their death.
- Medical professionals and the public have a moral duty to save lives where possible and by encouraging as many people as possible to donate organs we can create a culture of giving and healing whereby our duty to save lives is satisfied.
My proposed model for paid cadaveric organ
donation
My proposal
contains 5 main principles which could be manipulated and altered depending on
the legal system in which this law reform is taking place. I have created this proposal to follow on from
and expand on the model that Erin and Harris suggest[7] and for the sake of this article
I have assumed that it is the English legal system that would be trying to
create a paid cadaveric organ donation system.
- The potential donor signs the donor register as normal but selects what the payment will go to (e.g. estate, funeral costs, gift in a will). It is made clear to the donor that the payment is conditional upon the organ/s being used for transplant in that both the organ is suitable for transplant and there is a done available to receive the organ.
- The NHS pays the money for the organ/s based on a commodification bill drawn up by experts whereby each organ is valued based on the type of organ and that state it is in. the money will only be paid if the organ is fit for transplantation and a donee is available to receive the organ.
- The donor dies and his/her organs are taken after the body has undergone cold infusion and the organ/s has been deemed suitable for transplantation and a recipient is ready in theatre.
- The organ/s is transplanted into a patient and the NHS pay the agreed amount for each organ donated to the desired cause of the donor eg funeral costs, gift in a will etc
- The entire system is regulated by an Act of parliament and it is only legal for the NHS to pay for organs and all organ transplantations are done in certified hospitals and via the official process outlined above.
Further reading in this area that may be
of interest
For a general
audience
- The Organ Donation Taskforce, The Potential Impact of an Opt out system for organ donation in the UK (2008), available at: http://webarchive.nationalarchives.gov.uk/20130107105354/http:/www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_090312
- ‘Organ Donation Opt Out System given go ahead in Wales’, BBC news, 2 July 2013 http://www.bbc.co.uk/news/uk-wales-politics-2314323
- Gary Becker and Julio Elias, Cash for Kidneys: the case for a market in organs, The Wall Street Journal, 18 January 2014, available at http://online.wsj.com/news/articles/SB10001424052702304149404579322560004817176?mod=WSJ_hpp_MIDDLENexttoWhatsNewsFifth
- http://www.theconversation.com/action-to-stop-thriving-global-organ-trade-must-start-at-home-7333
For legal
professionals and students:
- M Brazier, ‘Retained Organs: Ethics and Humanity’ (2002) 22 Legal Studies 550.
- Department of Health, An Investigation into Conditional Organ Donation (2000) http://webarchive.nationalarchives.gov.uk/20130107105354/http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4035465.pdf
- V English and A Sommerville. ‘Presumed Consent for transplantation: a dead issue after Alder Hey?’ (2003) 29 Journal of Medical Ethics 147.
- CA Erin and J Harris J. ‘A monopsonistic market—or how to buy and sell human organs, tissues and cells ethically’, in Robinson I, ed. Life and death under high technology medicine. Manchester: Manchester University Press in association with the Fulbright Commission, London, 1994:134–53 (for an earlier, fuller version of the JME argument).
- J Herring and P.-L. Chau, ‘My body, your body, our bodies’ (2007) Medical Law Review 34.
- MA Jacob, Matching Organs with Donors (University of Pennsylvania Press, 2012)
- K Liddell and A Hall, ‘Beyond Bristol and Alder Hey: The Future Regulation of Human Tissue’ (2005) 13 Medical Law Review 170.
- NC Manson, ‘Normative Consent is not Consent’, (2013) Cambridge Quarterly of Healthcare Ethics 33-44
- J McHale, ‘Organ Transplantation, the Criminal Law, and the Health Tourist’ (2013) Cambridge Quarterly of Healthcare Ethics 64-76
- S Pattinson, ’Directed donation and ownership of human organs’ (2011) 31(3) Legal Studies 392-410
- D Price, ‘End-of-Life treatment of potential organ donors: paradigm shifts in intensive and emergency care’ (2011) Medical Law Review 86
- D Price, ‘The Human Tissue Act 2004’ (2005) 68 Modern Law Review 798.n
- M Potts and D W Evans, ‘Does it matter that organ donors are not dead? Ethical and policy implications’ (2005) Journal of Medical Ethics 406.
- C Waldby and R Mitchell, Tissue Economies: Blood, Organs and Cell Lines in Late Capitalism ch 6 (Duke University Press, 2006)
- Welsh Government, Proposals for Legislation on Organ and Tissue Donation (2011)
- S Wilkinson, Bodies for Sale (Routledge, 2003) ch. 7
[1] Human Tissue Act 2004 s 32
[2] For more analysis of law in this area see: A Cronin and J Douglas, ‘Directed and conditional deceased donor organ donations: Laws and misconceptions’ (2010) 18 Medical Law Review 275-301 http://medlaw.oxfordjournals.org/
[3] J Harris, ‘Organ Procurement: dead interests, living needs’ (2003) Journal of Medical Ethics 130.
[4] N Scheper-Hughes, ‘The Ends of the
Body – Commodity Fetishism and the Global Traffic in Organs’ (2002) 22(1) SAIS
Review 61-80; available at: http://web.mit.edu/writing/2010/June/Scheper-Hughes_endsofthebody.pdf
[5] C
Erin and J Harris, ‘An ethical market in organs’ (2003) 29 Journal of Medical
Ethics 137-138; available at http://jme.bmj.com/content/29/3/137.full
[6] Goyal M, Mehta RL, Schneiderman LJ, Sehgal AR. Economic and health consequences of selling a kidney in India. JAMA. 2002;288:1589–93. [7] C Erin and J Harris, ‘An ethical market in organs’
(2003) 29 Journal of Medical Ethics 137-138; available at
http://jme.bmj.com/content/29/3/137.full
[2] For more analysis of law in this area see: A Cronin and J Douglas, ‘Directed and conditional deceased donor organ donations: Laws and misconceptions’ (2010) 18 Medical Law Review 275-301 http://medlaw.oxfordjournals.org/
[3] J Harris, ‘Organ Procurement: dead interests, living needs’ (2003) Journal of Medical Ethics 130.
Sunday, 26 July 2015
Clinical Negligence... a constant battle but not between Lawyers and Doctors
Dear Readers,
My apologies for not posting sooner. I thought I should keep you updated with my current articles that are in the pipeline as I prepare for to start my Bar Professional Training Course. Given Mr Hunts recent comments on the competence and work ethic of doctors in the NHS I thought I would publish a couple of clinical negligence and medical law based articles. In the pipeline at the moment I have a couple of articles, one on the costs and procedure in clinical negligence cases and how the NHS could reduce these to save money and the second on the recent Facebook scandal relating to selling organs online and whether or not a commercial market for transplant organs would be legal or desirable. Thank you for your patience I hope you enjoy reading my new set of articles soon. Also thanks again for your containing endorsements and support. I love to hear from you on twitter and Facebook and it humbles me to know that so many of you are inspired to research, write and take an interest in law because of Legal Luminance.
Every kind wish,
KT
My apologies for not posting sooner. I thought I should keep you updated with my current articles that are in the pipeline as I prepare for to start my Bar Professional Training Course. Given Mr Hunts recent comments on the competence and work ethic of doctors in the NHS I thought I would publish a couple of clinical negligence and medical law based articles. In the pipeline at the moment I have a couple of articles, one on the costs and procedure in clinical negligence cases and how the NHS could reduce these to save money and the second on the recent Facebook scandal relating to selling organs online and whether or not a commercial market for transplant organs would be legal or desirable. Thank you for your patience I hope you enjoy reading my new set of articles soon. Also thanks again for your containing endorsements and support. I love to hear from you on twitter and Facebook and it humbles me to know that so many of you are inspired to research, write and take an interest in law because of Legal Luminance.
Every kind wish,
KT
Monday, 13 July 2015
'Chinese Dream': a corrupt sham?
Lawyers on the wrong side of the bars?
This week in China dozens of human rights lawyers have been detained as the government suspects that they have swayed court decisions, faked protested and disrupted public order. The lawyers targeted were mostly human rights lawyers who have worked on freedom of speech cases and judicial review. The Ministry of Public Security accused a group led by the Beijing-based Fengrui Law Firm, of illegally hiring protesters and swaying court decisions in the name of "defending justice and public interests". It also accused the lawyers of presenting a legitimate police shooting at a railway station as a murder conspiracy. These detentions are being seen as a consequence of China's national security law which critics say disproportionately protects the government's power.President Xi Jinping has been using his power to detain hundreds of thousands of officials in recent times and there has been a media push to discredit human rights lawyers by using their personal information to defame them.
The Chinese Dream Sham
All of this has happened in the midst of a 'Chinese Dream' to combat legal and official corruption and a campaign to uphold the image that China respects the rule of law. However as many of you will know the rule of law centres around the transparency of law and the ability of courts to review decisions with the help of barristers in order to ensure that public authorities are not abusing their power. What is happening in China however appears to be the exact opposite. This is made even more worrying by the fact that as Maya Wang, a researcher with Human Rights Watch, said the detention of activists and lawyers was not in response to “any kind of perceivable threat.”
The role of public opinion
William Nee, from Amnesty International, said Fengrui’s effectiveness in highlighting cases of injustice worried the government. “We’ve seen cases where public opinion seems to have been mobilised and I think they are worried because they don’t want to lose their grip on public opinion.” Protests outside courts by activists had unnerved the government, he added. This further suggests that these detentions are not lawful and are in fact a political move to prevent the public opinion from swaying towards the opinion of human rights lawyers in China that public authority corruption is rife and powers are being abused.
For more information see:
http://www.bbc.co.uk/news/world-asia-china-33502955
http://www.ft.com/cms/s/0/e39a987c-27d6-11e5-8db8-c033edba8a6e.html
http://www.theguardian.com/world/2015/jul/13/china-targets-lawyers-in-new-human-rights-crackdown
Sunday, 28 June 2015
Should healthy people have access to euthansia?
Abstract
This week has been an interesting week in medical law. It has been reported that courts in Belgium have allowed a healthy woman to access euthanasia because she has had ' suicidal thoughts since childhood' meanwhile in the Netherlands there has been a push to allow children under the age of 12 with terminal illnesses or illnesses that make life unbearable to access euthanasia. Back in the UK Lord Falconer's Bill is on its way through parliament and if it is passed into law it would allow people who have capacity, a terminal illness and less than 6 months to live to access euthanasia legally as long as they are domicile in the UK. These stories prompted me to look at whether or not euthanasia should ever be an option for a healthy person. For the sake of space I will assume that we are only considering adults over the age of 18 in situations where there is a genuine desire to die and no malice on the part of the physician. In this essay I am going to explore, firstly, the reasons why euthanasia has been legalised in some European countries and the main arguments for its legalisation. Secondly, why healthy people may choose euthanasia over suicide and whether this should be a lawful choice and finally whether it is consistent with the aims of medical law for the euthanasization of healthy people to be lawful.
Reasons why euthanaisa should be legal in some cases
Autonomy- one of the main reasons behind the push to legalise euthanasia in Europe has been the desire to respect people's right to die and not continue a life that they consider not worth living. In the case of healthy people this argument still holds strong. If what makes the England a modern and civil state is our desire to allow citizens to make their own choices for their own reasons then we should allow healthy people to have access to euthanasia simply because this is what they want. This would of course be subject to the conditions that the Doctor would not gain for the euthanasia and that the patient had a certain, capacitated and long held desire to die.
Non-discrimination- another argument that frequently features in the euthanasia debate is the need for people who physically cannot commit suicide due to paralysis or disability to have the same right to suicide as able bodied people. This is where we run into problems if we allow healthy people to have access to euthanasia,Suicide was made legal by the Suicide Act 1967 but assisted suicide and euthanasia remain illegal. If a healthy person wants to die then suicide is still an option for them, assuming that paralysis and disability take you out of the category of 'healthy persons'. Therefore it seems to go to far to say that not only should healthy people be allowed to kill themselves but they should also be allowed to ask a medical professional to help them. There is no discrimination in the case of a healthy adult who wants to die, they can commit suicide and the law cannot step in.
Prevention of harm- finally in most right to die cases the issue arises that the person wants to die and is currently in pain or mental distress to such an extent that doctors should help them die in order to prevent their suffering continuing. In the case of a healthy person seeking euthanasia this may be an issue because there may be no harm being prevented. It is of course arguable that the woman in Belgium, known only as 'Laura' was in such mental distress by her suicidal thoughts that allowing her to die prevented this suffering. However it is also clear that in many cases counselling, mental health treatments and other medical treatments may help to relieve this mental distress and so letting someone die would actually take away the chance of recovery rather than cure them.
Why would a healthy adult choose euthanasia?
I accept that I have limited space and knowledge in this area to really explain and analyse all the reasons why someone may want to be euthanized despite being physically able to commit suicide themselves. For now I shall look at 2 reasons. First, a fear that another suicide attempt may fail and second an inability to go through the process of suicide alone.
If a healthy adult wishes to die and wants a physician to help because they have attempted suicide before and failed then euthanasia may seem like the best option. The healthy person may believe that a doctor will be able to ensure that they are given drugs that will be sure to work and that death will be as peaceful and painless as possible. Whilst this seems rational and logical it misses out the fact that another person, the physician will be complicit in the euthanasia and so would have to consent to effectively killing a healthy person. In law consent is no defence to harm and so if the euthanasia of healthy people was legalised this really would be an extraordinary anomaly in English Law. It is possible that doctors would be given a right to conscientious objection which is fair and reasonable however my question would be what kind of doctor would agree to kill a healthy patient and go against all they have learnt at medical school about how the doctor's duty is to protect and care for their patients?
Secondly, if a healthy person wishes to access euthanasia because they feel they have not got the ability to go through the process alone then it should be asked whether they really do want to die. Part of the reason suicide is lawful is because the person themselves is ending their own life and right up until the last moment they can choose to remain alive. If doctors could assist a healthy person's suicide then the doctor will be taking the final steps of actually killing the patient and so the patient's autonomy in those last few seconds of life is surrendered to the Doctor. Therefore giving healthy people access to euthanasia is not protecting their autonomy as the law should.
Conclusion: would allowing healthy people to be euthanized be consistent with English medical law?
In short, no. Euthansia would not protect the healthy person's autonomy in the same way suicide does. The healthy person could not withdraw his consent once the lethal dose has been administered but he could choose not to jump from a bridge. This is why suicide is legal and euthanasia is not. English medical law has foundations in patient autonomy. Allowing healthy people to be euthanized also goes against the foundations of the medical profession as it effectively allows a doctor to end a patient's life and it offends the principle of the prevention of harm. Therefore overall I feel that the legalization of euthanasia for healthy people is unacceptable on medical and ethical grounds and although it is unlikely a judgement like the one in Belgium will ever happen in England judges should be slow to follow the Belgian model
This week has been an interesting week in medical law. It has been reported that courts in Belgium have allowed a healthy woman to access euthanasia because she has had ' suicidal thoughts since childhood' meanwhile in the Netherlands there has been a push to allow children under the age of 12 with terminal illnesses or illnesses that make life unbearable to access euthanasia. Back in the UK Lord Falconer's Bill is on its way through parliament and if it is passed into law it would allow people who have capacity, a terminal illness and less than 6 months to live to access euthanasia legally as long as they are domicile in the UK. These stories prompted me to look at whether or not euthanasia should ever be an option for a healthy person. For the sake of space I will assume that we are only considering adults over the age of 18 in situations where there is a genuine desire to die and no malice on the part of the physician. In this essay I am going to explore, firstly, the reasons why euthanasia has been legalised in some European countries and the main arguments for its legalisation. Secondly, why healthy people may choose euthanasia over suicide and whether this should be a lawful choice and finally whether it is consistent with the aims of medical law for the euthanasization of healthy people to be lawful.
Reasons why euthanaisa should be legal in some cases
Autonomy- one of the main reasons behind the push to legalise euthanasia in Europe has been the desire to respect people's right to die and not continue a life that they consider not worth living. In the case of healthy people this argument still holds strong. If what makes the England a modern and civil state is our desire to allow citizens to make their own choices for their own reasons then we should allow healthy people to have access to euthanasia simply because this is what they want. This would of course be subject to the conditions that the Doctor would not gain for the euthanasia and that the patient had a certain, capacitated and long held desire to die.
Non-discrimination- another argument that frequently features in the euthanasia debate is the need for people who physically cannot commit suicide due to paralysis or disability to have the same right to suicide as able bodied people. This is where we run into problems if we allow healthy people to have access to euthanasia,Suicide was made legal by the Suicide Act 1967 but assisted suicide and euthanasia remain illegal. If a healthy person wants to die then suicide is still an option for them, assuming that paralysis and disability take you out of the category of 'healthy persons'. Therefore it seems to go to far to say that not only should healthy people be allowed to kill themselves but they should also be allowed to ask a medical professional to help them. There is no discrimination in the case of a healthy adult who wants to die, they can commit suicide and the law cannot step in.
Prevention of harm- finally in most right to die cases the issue arises that the person wants to die and is currently in pain or mental distress to such an extent that doctors should help them die in order to prevent their suffering continuing. In the case of a healthy person seeking euthanasia this may be an issue because there may be no harm being prevented. It is of course arguable that the woman in Belgium, known only as 'Laura' was in such mental distress by her suicidal thoughts that allowing her to die prevented this suffering. However it is also clear that in many cases counselling, mental health treatments and other medical treatments may help to relieve this mental distress and so letting someone die would actually take away the chance of recovery rather than cure them.
Why would a healthy adult choose euthanasia?
I accept that I have limited space and knowledge in this area to really explain and analyse all the reasons why someone may want to be euthanized despite being physically able to commit suicide themselves. For now I shall look at 2 reasons. First, a fear that another suicide attempt may fail and second an inability to go through the process of suicide alone.
If a healthy adult wishes to die and wants a physician to help because they have attempted suicide before and failed then euthanasia may seem like the best option. The healthy person may believe that a doctor will be able to ensure that they are given drugs that will be sure to work and that death will be as peaceful and painless as possible. Whilst this seems rational and logical it misses out the fact that another person, the physician will be complicit in the euthanasia and so would have to consent to effectively killing a healthy person. In law consent is no defence to harm and so if the euthanasia of healthy people was legalised this really would be an extraordinary anomaly in English Law. It is possible that doctors would be given a right to conscientious objection which is fair and reasonable however my question would be what kind of doctor would agree to kill a healthy patient and go against all they have learnt at medical school about how the doctor's duty is to protect and care for their patients?
Secondly, if a healthy person wishes to access euthanasia because they feel they have not got the ability to go through the process alone then it should be asked whether they really do want to die. Part of the reason suicide is lawful is because the person themselves is ending their own life and right up until the last moment they can choose to remain alive. If doctors could assist a healthy person's suicide then the doctor will be taking the final steps of actually killing the patient and so the patient's autonomy in those last few seconds of life is surrendered to the Doctor. Therefore giving healthy people access to euthanasia is not protecting their autonomy as the law should.
Conclusion: would allowing healthy people to be euthanized be consistent with English medical law?
In short, no. Euthansia would not protect the healthy person's autonomy in the same way suicide does. The healthy person could not withdraw his consent once the lethal dose has been administered but he could choose not to jump from a bridge. This is why suicide is legal and euthanasia is not. English medical law has foundations in patient autonomy. Allowing healthy people to be euthanized also goes against the foundations of the medical profession as it effectively allows a doctor to end a patient's life and it offends the principle of the prevention of harm. Therefore overall I feel that the legalization of euthanasia for healthy people is unacceptable on medical and ethical grounds and although it is unlikely a judgement like the one in Belgium will ever happen in England judges should be slow to follow the Belgian model
Results Day
Dear Readers,
Thank you so much for to all of you who wished me luck on the 23rd. I am delighted to announce that I will be graduating from Queen Mary University of London with a first class honours for my Law LLB. Once again I was humbled by your support and honest critique of my work. Thank you to everyone at The Lawyer for helping me boost the publications section of my CV. The clerks at OTC, 1 GC and Staple Inn for their guidance and help with getting experience of the best cases. Finally thank you to all the students who read this blog and told me how much it has helped them. I really appreciate your loyalty and patience and I cannot wait to continue writing at Bar School and Pupillage.
Every kind wish,
KT
Thank you so much for to all of you who wished me luck on the 23rd. I am delighted to announce that I will be graduating from Queen Mary University of London with a first class honours for my Law LLB. Once again I was humbled by your support and honest critique of my work. Thank you to everyone at The Lawyer for helping me boost the publications section of my CV. The clerks at OTC, 1 GC and Staple Inn for their guidance and help with getting experience of the best cases. Finally thank you to all the students who read this blog and told me how much it has helped them. I really appreciate your loyalty and patience and I cannot wait to continue writing at Bar School and Pupillage.
Every kind wish,
KT
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