TOP LAWYER CALLS FOR MORE DEBATE ON LIVING WILLS

December 2008

A leading lawyer is calling for greater legal recognition of Living Wills in Scotland to give more protection to terminally ill Scots who wish to end their lives with dignity.

John Kerrigan, of Maxwell MacLaurin, says that recent cases such as that of multiple sclerosis sufferer Debbie Purdy who launched a legal bid to ensure her husband is not prosecuted for helping her travel abroad to end her life, highlight how important it is that there are clear legal guidelines on the issues around terminally ill patients.

In Scotland patients can ask their lawyers to draw up a Living Will, which is more properly known as an Advanced Medical Directive, which can instruct doctors not to resuscitate them or prolong treatment when they become incapable of communicating with doctors. Unlike voluntary euthanasia, this requires inaction on the part of clinicians in attendance upon the relevant individual. Voluntary euthanasia requires that someone take an active role in bringing the patient’s life to an end for example by administering a lethal dose of morphine.

Kerrigan said: “At the moment the legal status of a Living Will is uncertain in Scotland and these remain no more than an expression of a person’s wishes and can be over-ruled by medics or family members who are not prepared to accept that someone wants no further treatment.

“What I want is for more legal guidelines which will not only give more rights to patients but will also safeguard them against abuses of the system. A legal grey area on the question is beneficial to no-one, especially as there has now been statutory recognition (since October 2007) of such documents in England and Wales.”

Kerrigan says that in Holland laws were introduced in 1993 to protect doctors from criminal prosecution in relation to “mercy killing”. As a result, in 1995 there were 3,600 “physician assisted suicides” in Holland.

Belgian research showed that there was a much greater level of “non voluntary euthanasia” (basically doctors taking steps to end the lives of their patients without the latter specifically requesting this). A similar outcome was reached following an examination of the position in Australia.

The Belgian research concluded that where there was no system of regulation, vulnerable patients could be put at risk unless the end of life decision making process was regulated. As a result, the Belgian Government introduced provisions allowing “assisted dying”, subject to certain safeguards.

Kerrigan adds: “It could be argued that Harold Shipman was the product of a society prepared to turn a blind eye or even tolerate on an unspoken and wholly unofficial basis assisted dying without having the necessary safeguards and failsafes in place – a failure of which Shipman took terrible advantage. Surely a system with safeguards is better than none at all, particularly given the outcome of the Belgian Research.”

Kerrigan believes that now is the time for a debate on the issue and that carefully regulated legislation on voluntary euthanasia will eventually be introduced in the UK. France has already taken up this important debate.

He says it is far better that this legislation is introduced now when the focus is on protecting patients’ rights to die with dignity than in ten or twenty years, when the NHS is struggling to deal with an increasingly ageing population as, according to research in the US, up to 50% of lifetime healthcare costs occur in the last six months of life.

He said: “Although I hope that I am wrong, it may be that voluntary euthanasia will receive more serious consideration in the UK if the burden on the National Health Service in financial terms becomes too great insofar as Alzheimer’s sufferers are concerned.”

He added: “Does respect for individuality have no place in our high speed, modern society? As we grow old, does the force of our freedom to choose how we should live and die diminish? A life lived with dignity is still respected in this country – why therefore should we not have a regulated methodology for those, of full capacity, who wish to end their lives with dignity? Are our terminally ill any different from (and therefore deserving of less rights than) the terminally ill in Oregon (which has had regulated assisted dying for 10 years now) Holland, Belgium or Switzerland.

“We continue to hold the threat of prosecution over loving spouses and partners for assisting their gravely ill loved ones to escape pain and undignified deaths – for demonstrating the depth of their love and commitment. Remember Shipman. Is it not time for our legal system to look elsewhere for culpable homicide convictions.”