The Moral Step Back - Pure - Aberystwyth University

|The Moral Step Back |
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|Jennifer Edwards L.L.B |
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|Department of Law and Criminology |
|Aberystwyth University |

This thesis is submitted for the degree of Doctor of Philosophy


August 2011
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Summary


This work aims to make the case for reform to the law on euthanasia being
necessary. There are certain constructs within the criminal law, passive
euthanasia and the doctrine of double effect, that allow the courts to re-
define physicians' actus reus (in the case of passive euthanasia) or mens
rea (in the case of double effect), and make it possible for them to do
acts that would otherwise be seen as murder without the threat of legal
sanctions.

While it is not disputed that the majority of physicians who perform
passive euthanasia or rely on the doctrine of double effect do so in good
faith and therefore deserve legal protection, it will be argued these
constructs they rely are logically not fit for purpose and that the courts
allow, through their use, the very acts they purport to condemn.

It is concluded that active euthanasia and intentional killing are, through
'passive' euthanasia and the doctrine of double effect, both practiced and
unregulated, and it is this lack of regulation that this work cites as the
most important reason why the law at present needs to be reformed. With the
need for reform as its basis, the discussion moves on to explore a number
of possible avenues through which reform could be effected, and settles
upon the promulgation of legislation as the most prudent. In response to
this finding, a draft Bill was written and is evaluated in the last chapter
of this work.






















Declarations

DECLARATION

This work has not previously been accepted in substance for any degree and
is not being concurrently submitted in candidature for any degree.

Signed......................................................................
..................... (candidate)

Date........................................................................
.......................

STATEMENT 1

This thesis is the result of my own investigations, except where otherwise
stated. Where *correction services have been used, the extent and nature of
the correction is clearly marked in a footnote(s).

Other sources are acknowledged by footnotes giving explicit references.

Signed......................................................................
..................... (candidate)

Date........................................................................
.......................

(*this refers to the extent to which the text has been corrected by
others).

STATEMENT 2

I hereby give consent for my thesis, if accepted, to be available for
photocopying and for inter-library loan, and for the title and summary to
be made available to outside organisations.

Signed......................................................................
..................... (candidate)

Date........................................................................
.......................

STATEMENT 3

I hereby give consent for my thesis to be deposited in the University's
Institutional Research Repository.

Signed......................................................................
..................... (candidate)

Date........................................................................
.......................













For choice, and JK









































Acknowledgements

I would like to extend my gratitude to all those who had a hand in helping
me put together this thesis, in particular my supervisors, Dr Glenys
Williams and Professor John Williams. Without their patience, guidance,
feedback and support I would have long ago given up.

While writing my Ph.D I was privileged to work in the Department of Law and
Criminology, and I would like to extend my thanks to all of my colleagues
for their kindness and support. Special thanks must be given to Professor
Alan Clarke, who helped me to get the empirical part of my research
approved by University's ethics board, and who pointed me on the path
towards similar approval from the NHS ethics committee. I would also like
to thank Dr Kate Bullen, head of the Psychology Department at Aberystwyth
University, who gave me her time and support while I worked through the
process.

To the NHS ethics committee, and all those who I contacted while pursuing
their approval, I extend my thanks and appreciation for their assistance. I
would also like to thank the thirteen interviewees who kindly gave up their
time to share their opinions and experiences with me. Though they must
anonymous for reasons of confidentiality, without them this thesis could
not have been written and I will always be grateful to them for the part
they have played in its creation.

I would also like to thank all those who I had the opportunity to meet at
conferences throughout my time as a Postgraduate, particularly Professors
Margaret Brazier and John Harris. Their very presence has proved to be an
inspiration to me time and again, and I credit many a midnight epiphany to
passages they have written, or comments they have made to me. That said,
responsibility for any errors or omissions in this thesis is mine alone.

Finally, I must thank my parents and my closest friends for putting up with
me when my work made me insular and antisocial. They can have their
daughter and their buddy back now.







Contents

Summary.....................................................................
...................................................2
Declaration.................................................................
....................................................3
Acknowledgements............................................................
............................................5
Table of
contents....................................................................
........................................6
Introduction................................................................
....................................................9

CHAPTER ONE - The Moral Step Back
1.
Introduction................................................................
..............................................15
1.1 Euthanasia: the often defined, yet never defined
concept......................................18
1.2 The Moral Step
Back........................................................................
......................21
1.3 Action and the meaning behind what it is to
act....................................................24
1.3.1 Defining
'Action'....................................................................
.............................29
1.3.2 Defining
Volition....................................................................
.............................34
1.3.3 Defining
'Omission'..................................................................
..........................38
1.4 Perpetual
Illogicalities..............................................................
..............................41
1.4.1 The distinction based on acts and omissions: what it is and how it is
wrong....42
1.5
Conclusion..................................................................
............................................51

CHAPTER TWO - Intention, Double Effect and the Moral Step Back
2.
Introduction................................................................
..............................................53
2.1 Intention and
Foresight...................................................................
........................55
2.1.1 Intention, Foresight and what it is to Act
Intentionally.......................................57
2.2 Double
effect......................................................................
....................................60
2.3 Double Effect and the Moral Step
Back.................................................................68
2.3.1 Pain relief, certain death and uncertain
consequences.......................................69
2.3.2 Intention, Foresight and the effect of
Action.......................................................73
2.4
Conclusion..................................................................
............................................83

CHAPTER THREE - The 'Moral Step Back' and judicial rulings
3.
Introduction..............................