Civil Liberties and Human Rights

In its simplest and most general sense, liberty entails non-interference by others with one’s freedom of choice and action. It supports personal autonomy, where the person displays a degree of reflectiveness, self-awareness, and social awareness, which allows him or her to form plans and understand their impact on everyone in the immediate social group. Recognising and protecting someone’s right or liberty, and tolerating their exercise of it, involves a potential cost to other individuals and to the public generally. Seeing individual choice of goods as the highest human good, and the priority of liberty over other values, are therefore highly controversial ideas. Socialist and communitarian theorists have challenged any political theory which place the individual and his or her choices somehow outside society. Rather, it is said that, people’s values and choices are shaped by the public good, and liberty is possible only if nurtured by society. Moreover, the analysis of what it is to be the bearer of a right is problematic in the case of the mentally ill who, by definition, are defective in the very characteristics that are highlighted by the autonomy theory. Furthermore, how does the capacity for self-determination reflect on euthanasia? Due to limitations in word count, this essay is non exhaustive.

The autonomy model relies solely on the moral demands of a rational view for self-determination, with the opposing view being treatment for the relief of suffering. Here it is possible to see the restrictions on the legal capacity of the mentally ill to refuse treatment as a way of realising their human rights. This leaves it undetermined as to what weight is given to the relief of avoidable suffering over respect for the wishes of patients. Indeed, over-emphasising the human rights of patients would stress autonomy at the expense of treatment, neglecting the need for appropriate care, so that in extreme cases patients might even ‘die with their rights on.’ Carrying out the proposal would require careful elucidation of the concept of suffering: not an easy task, but a necessary one if the practice of compulsory intervention in the lives of persons whose behaviour is out of the ordinary and ‘irrational’ in terms of the standard norms of society is sustained.

A patient with a ‘physical disorder’ such as cancer may refuse treatment even if the disease is life-threatening. Because we respect personal autonomy we accept the decision unless there is reason to believe that the patient’s decision-making capacity is impaired. Therefore a curious anomaly arises, in contrast to impairment in decision-making by patients with physical disorders, under the Mental Health Act 1983, as well as in mental health acts of most countries: non-consensual treatment of those with mental disorders are governed by an entirely different set of tests. This is explicable only on the basis that the disorder suffered by a mentally disordered patient interferes with the capacity to make decisions in a way which purely physical disorders do not but, since the interests which are in effect protected are those of the mentally ill, the discrimination could perhaps be against the ordinary citizen and not the mentally ill subject. The concept of refusing treatment and the right to self determination is closely linked to the controversial question of euthanasia.

Many terminally ill people have been kept alive against their will by advanced medical technologies and have been denied assistance in dying. Should now be the time for our society to recognise that terminally ill individuals have the right to choose the time, place, and manner of their own death? If the right to life is to be a genuine right, rather than a duty to remain alive for as long as possible, shouldn’t people be free to choose to die if they consider it worthwhile to do so.

In Bland, the House of Lords held it lawful to withdraw tube-feeding from a patient in a ‘persistent vegetative state,’ even with intent to kill him. The guidance applies to the withholding of ‘medical treatment,’ which extends to the delivery of food and hydration by tube. This seems to contravene traditional medical ethics to deny tube-feeding on the ground that the patient, rather than the treatment, is not worthwhile. In addition, many commentators argue that because tube-feeding prevents an uncomfortable death by starvation or dehydration, it should qualify as ‘basic care’ as those procedures essential to keep an individual comfortable including the administration of medication or performance of any procedure which is solely or primarily designed to provide comfort to the patient or alleviate that person’s pain, symptoms or distress. This writer remains unconvinced by this opinion. The insertion of the tube is a procedure calling for skill and knowledge, and the mechanical pumping of food through a tube is a highly unnatural process. Looking at the matter as objectively as possible, it is difficult to see what benefit his continued existence could be thought to give him. It might be different if he lived long enough for means to be found to restore some part of his faculties, but no grounds have been suggested for cherishing such a hope and the physiological findings appear to preclude it. However, modern medical science was not developed to be used inhumanely; to do so is inconsistent with its fundamental purpose.

Conscientious doctors will undoubtedly continue to strive with dedication to preserve and promote the life and health of their patients. This argument explicates that we do not have an equal right to life but that the law has to take into account a myriad of interests which are problematic and surprisingly conditional. In matters of life and death, we are dealing with what Professor Laurence Tribe called the ‘clash of absolutes.’ Under these conditions, rules cannot dictate answers. The best that can be hoped for is to provide answers which are not too inconsistent with too many of them.

Until recently, there have been predominately unsuccessful attacks on the legality of euthanasia. However, lawful euthanasia has arrived in some jurisdictions and has added a new aspect to the debate. In the Netherlands for example, medically practiced euthanasia became law in 2000. Doubt still remains in the UK: what of the patient who does not wish to die but is killed by a doctor due to earlier written authorisation; what of the physical healthy woman who becomes depressed and wants to die, could this make the exercise of euthanasia more trivial; the controversial provision on euthanasia for minors, and; will a removal of the prohibition against killing make it more difficult to control the practice? Euthanasia has been practised in many cases without the patient’s consent. This practice therefore warns of the dangers of an over sensitive right to die.
It remains to be seen what comes of the Euthanasia Bill, but for now at least, chances for lawful euthanasia are remote: ‘The Government can see no basis for permitting suicide. Such a change would be open to abuse and put the lives of the vulnerable and weak at risk.’ The uncertainty of the common law has, in the past, been used as a justification for a change in the law but, it could be argued that the decisions in Pretty and Mrs B clarify the boundaries between the right to live and the right to die.

Bibliography

Dworkin, Life’s Dominion: an argument about abortion and euthanasia, (1993)
Dyer, British GP cleared of murder charge (1999) 318 BMJ 1306
Feldman, Civil Liberties and Human Rights, Oxford University Press, 2nd ed., 2002
Leng, Mercy Killing and the CLRC. (1982) 132 NLJ 76
Mason, Smith & Laurie, Law and Medical Ethics, LexisNexis Butterworths, 6th edition, 2002, p 529
S. Mulhall and A. Swift, Liberals and Communitarians, (Oxford: Basil Blackwell, 1996)
Palmer, Dr Adams, Trial for Murder, [1957] Crim LR 365
without explicit request of patient, 1993 341 Lancet, 1196
H. Salize, Compulsory Admission and Involuntary Treatment of Mental Patients, http://europa.eu.int/comm/health/ph/programmes/health/proj00_08_en.html
Medical treatment- withdrawal of treatment- patient in persistent vegetative state;’ (1993) NLJ 199
‘Vegetative state patients,’ (1996) NLJ 1579
Mercy killing doctor freed, 1993, Scotsman, 22 April p 8
House of Lords Report on the Select Committee on Medical Ethics (HL Paper 21-1) 1994
Re T [1992] 4 All ER 649 at 652
Pretty v UK [2001] 2 FCR 97
Re B v NHS Hospital Trust [2002] EWHC 429

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