END OF LIFE DECISIONS

What is the definition of death? The Royal College of Physicians in 1995 stated that “it is
suggested that it is the irreversible loss of the capacity for consciousness combined with the
irreversible loss of capability to breathe should be considered the definition of death.”

The other suggestion would be brain stem death – this is what has been used by
physicians to determine whether a person is alive or not.
Brain stem death refers to a situation where the parts of the brain which operate
respiration and heart beat are dead and there is no electrical impulse. Consciousness or
sensate awareness will have decayed. The patient has no capacity to live and will never
recover it.

QUESTION: Is or Should there be a right to die? Is it part of the right to life? Should
there be a right to die with dignity? Should it be an extenstion of the right to dignity?

There are various ways to end life.

a) Suicide – this is the deliberate termination of one’s life

In Kenya attempted suicide is illegal – section 226 of the PC – “any person who
attempts to kill himself is guilty of a misdememour” – the criminalization of
death
Aiding and abetting in suicide is also illegal – section 225 of the PC – any person
who:
a) Procures another to kill himself or
b) Counsels another to kill himself and thereby induces him to do so or
c) Aids another in killing himself
Is guilty of a felony and is liable to life imprisonment

What amounts to aiding in suicide?

Physician assisted suicide – where the doctor furnishes the patient with the means of
ending their life e.g. giving of a pill which the doctor knows will kill him/her.
So..Legally, the doctor did not “cause” the death of the patient because the patient
willingly and voluntarily took the pill. However the doctor “aided” in the process
which in Kenya is still illegal.
AG v Able (1984) QB 795

 The defendants were members of the Voluntary Euthanasia Society.

 They published a book titled “a guide to self – deliverance” to be distributed
among members of the society.
 The book set out 5 different ways in which suicide could be committed
 there
 there was evidence that in the first 18 months after the booklet had been
distributed, 15 suicide cases were linked to it
 in a further 19 cases, documents were found which indicated that he deceased
was a member of the society or had corresponded with the society
 the AG sought a declaration that the continued distribution of the material
constituted an offence of aiding and abetting and procuring suicide
 Woolfe J held that “As a matter of principle it seems to me that as long as there is
the necessary intent to assist those who are contemplating suicide if they decide
to do so, it does not matter that the supplier does not know the state of mind of
the state of mind of the actual perpetrator.”
 He stated that the sale of the booklet could be an offence but this did not mean
that any particular supply constituted an offence. The declaration sought by the
AG was refused.

The Supreme Court in Canada allowed physician assisted suicide under Exclusive
circumstances. See: Carter v Canada (AG), 2015 SCC 5 – the court found that the
prohibition on physician assisted dying infringed the right to life, liberty and security of
the person in a manner that was not in accordance with the principles of fundamental
justice.

EUTHANASIA
Originating from Greece – where the concept connotes a good death. (Can death ever be
a good thing?) – The deliberate bringing about of death in order to end suffering from a
painful and chronic illness - it is meant to be an aspect of mercy
Can the right to die be considered as an aspect of the right to life?

Types of euthanasia

1. Active – a positive action is done to terminate the life of the person

2. Passive – shortening life through the omission to act e.g. withholding or
withdrawing treatment
Professor Margaret Brazier considers that the concept of death is not a single one
time event and is a process where the organs begin to sequentially cease to
function and at different times.
A distinction needs to be drawn between where life support machine is turned
off because it is medically established that the patient is dead, and where the
machine is turned off although the patient is clinically alive because it is thought
that no further justification can be found for keeping the patient alive and so the
patient should be allowed to die. Considerations here are : consent, the quality of
life of the patient (even for those who argue about the sanctity of life, there is the
argument that life is not only intrinsically valuable but also is made valuable
from the life-holder’s capacity to enjoy pleasurable states of consciousness which
we associate with normal day to day sensations of life.) And the proper use of
scarce resources (is there a policy in public hospitals as to how long a person
should remain in ICU and on life support?)

3. Voluntary – life is terminated at the patients request – there is consent of the

patient – advance directives or even patients refusal of treatment
See: R v Blaue (1975) – Jehovah ’s Witness refusal of blood transfusion – the
patient was an 18 year old who had been stabbed with a knife and had sustained
 serious blood loss from a punctured lung. She required a transfusion otherwise
she would die. She refused and persisted in her refusal for blood transfusion. The
doctors respected her wishes and the question before the court was whether the
refusal of treatment by the girl broke the chain of causation so that it could be
said that the stabbing of the girl could not be said to be the operative cause of
death. The Court rejected this argument thereby endorsing and recognizing the
patient’s right to refuse treatment even if it leads to death

4. Involuntary – ending life on paternalistic grounds while disregarding the wishes

of the patient – where it is not in the best interests of the patient – e.g. an
anencephalic baby – this is a baby born with most or all the higher brain lacking
and will usually die in a matter of days or weeks. The baby even if kept alive

5. Non – voluntary – ending the life of a patient who is unable to make a decision
for themselves – the decision is either made by a guardian or by the doctors
themselves e.g. a mentally incapacitated patient

Is mercy killing legal? Where someone would deliberately and specifically perform an
act to accelerate death to end suffering. The intention and not the motive is the pre-
requisite. In Kenya therefore, this is illegal and would be considered murder. The
ingredients for murder are the killing itself (actus reus) and malice aforethought (the
mens rea). It does not matter what the motive was, even if it was a benevolent motive.

In countries like the Netherlands and Belgium, active euthanasia is legal.

QUESTION: Consider the historical evolution of the legalization of euthanasia in these

countries and why they legalized euthanasia. Are the justifications for legalization of
euthanasia in those countries relevant to an African context?
QUESTION: What are the African perspectives of Euthansia? Can the Ubuntu
philosophy be used as a way to consider the discussion as to whether to legalise
euthanasia?
Issues to grapple with

 When the right to life becomes expensive – the prolonging of life becomes cost
prohibitive
 When the patient or family demands that life prolonging treatment continues
until the patient dies naturally – see the case of former Nyeri MP Wanyiri Kihoro
where his wife had been in a coma for 2 years.

 What about patients in a vegetative state? It is important to distinguish between

continuous vegetative state and permanent vegetative state
Continuous vegetative state – the vegetative state takes more than 4 weeks and
permanent vegetative state – where the diagnosis of irreversibility has been
established with a high degree of certainty…usually more than 12 months

These discussions may not have reached our courts but they have been considered in
other western jurisdictions such as the UK
See the case of Airedale NHS Trust v Tony Bland (1993)

 Tony bland was one of the victims of the Hillsborough disaster of 1989.
 He was in a PVS for more than three years
 His brain stem was still alive but it had suffered irreversible harm. It was
diagnosed and prognosed that he would never regain any form of consciousness
 He was not on life support and was being fed by a naso – gastrol tube
 The Trust wanted it declared by the Court that it would be lawful to withdraw
treatment
 Held by the Court
  The object of medical care and treatment was to benefit the patient – being PVS
was not in the best interests of the patient
 The doctors responsible for the treatment were not under a duty to continue such
treatment. Cessation of treatment is an omission and would only be criminal if
the doctor had a duty to continue the treatment.

This case brings about the interesting concept of death in the best interest of the patient
The Bland case was followed in the case of Frenchay v NHS Trust (1994)

 A teenager took a drug overdose and suffered from acute brain damage
 He was treated in hospital where it was diagnosed that he was in PVS
 He was fed through a naso-gatral tube.
 The tube became disconnected perhaps as a result of the patients movement
 The tube could not be reconnected and the only alternative would be to insert
another one. But they were of the view that continued treatment would not be in
the best interests of the patient.
 They sought declaratory orders that it would be lawful not to reinsert the tube.
 The Court granted the orders

What about the views of relatives? Do they matter?

See Re SG(1995) – where the patient had been involved in a motorcycle accident and
had suffered severe head injuries rendering him to be in a PVS. The wife was of the
view that treatment can be withdrawn but the mother wanted his treatment to continue.
The court was of the view that they will have regard to the wishes and views of
relatives but these views will not have any determinative effect.

Patients with terminal illnesses – the difference between withdrawing treatment and
actively terminating the life of the terminally ill
See the Diane Pretty Case (2002)

 Diane Pretty was 43 and paralyzed and suffering from motor neurone disease
which is a degenerative and fatal disease
  She faced the prospect of dying a humiliating death
 She had mental capacity but her physical incapacity rendered her unable to take
her own life
 She requested her husband to carry out the process. He was willing to do so
provided that he would be immune to prosecution
 The DPP refused to grant this immunity. The HL and the European Court of
Human Rights both refused to allow him to do so and also held that there was no
breach of human rights

See the Canadian Supreme Court case – Carter v Canada (2015) where the court found
that the prohibition against physician assisted dying violated the rights of competent
adults who were suffering intolerably as a result of a grievous and irremediable
medication condition