Is Driving Someone to Euthanasia Murder?

On 23rd September 2015, Van Dongen’s former partner, Berlinah Wallace, threw a glass of sulphuric acid into his face. He was taken into hospital and suffered physically and mentally.

Fifteen months after the attack, Mr Van Dongen travelled to Belgium to visit a Euthanasia clinic and end his life. They had been together for five years before splitting up weeks before the attack.

Ms Wallace is before the court and is accused of murder and applying corrosive fluid, both of which she denies.

This case involves different areas of the law, namely Criminal Law, Human Rights and Medical Law.

Criminal Law

Euthanasia is the act of deliberately ending a person’s life to relieve suffering. The law in England and Wales regards Euthanasia as either murder or manslaughter. The defendant in these cases is typically the person who caused the death, for example, by administering a drug to the victim.

What makes Van Dongen’s case stand out in particular is that the accused, Ms Wallace, did not administer or have any direct involvement with the procedure. Instead, the defendant had caused a harm to the victim which much later led the victim to contemplate and die by way of euthanasia.

Under English law, the requirements for murder is that the defendant must have intended to kill of cause Grievous Bodily Harm (GBH), in other words, really serious harm; and caused the death of the victim.

The legal test for causation is taken from the case of R v White which would ask “But for the throwing of sulphuric acid at the victim by Ms Wallace, would Mr Van Dongen have died?” Whilst it is possible to argue that yes, if not for the suffering of Mr Van Dongen he would not have sought Euthanasia, a murder charge would be thought to fail for factual causation.

Factual causation, which must also be established, means that the defendant’s actions must have been substantial, blameworthy and operative at the time of the death. The case of R v Kennedy (No. 2) states that if there was a free, voluntary and informed act by the victim which causes death, the defendant is not deemed to have caused the death. It is arguable as to whether Mr Van Dongen choosing to seek euthanasia caused his death and not Ms Wallace’s actions months previously.

However, the law remains here in the hands of the Common Law and may be subject to change by judges who may have an interest in creative interpretation to achieve a goal of justice.

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Human Rights

The issue of euthanasia has also been brought up in relation to various Human Rights issues, including the Right to Life under Article 2 of the European Convention on Human Rights.

The European Court of Human Rights have stated in Pretty v UK [2002] that the State will have a wide margin of appreciation and have great discretion to decide on matters of morality, such as Euthanasia. Therefore, it is up to individual States to make a decision regarding the legality of euthanasia, which is why there are different rules regarding euthanasia across all the members of the Council of Europe. This is why Mr Van Dongen was able to travel and avail the procedure overseas, despite the illegality of the procedure in the UK.

The doctrine of the margin of appreciation is the concept used by the Courts to allow States room for manoeuvre to be able to fulfil their obligations under the Convention. It is used to ensure that the Convention remains effective and prevents it from becoming too rigid. States are also allowed greater discretion because it is felt that the State would have a better grasp of their constituent as they are democratically appointed by the electorate and have access to greater resources.

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Medical Law and Ethics

As defined above, Euthanasia is based on the alleviation of suffering of a patient by another person assisting them in their wish to end their life. Murder, however, is the killing of another with premeditation.

Types of Euthanasia

  • voluntary euthanasia is behaviour which causes the patient’s death at the patient’s request
  • involuntary euthanasia arises when a patient is killed without the explicit request to end their life.
  • passive euthanasia is where there is an act or omission which causes the death. In this case, as there has not been an ‘action’ causing death, it is not always illegal to withdraw treatment or fail to assist.

The idea of euthanasia is based on the idea of maintaining a person’s dignity and the right of a person to choose the time and manner of their own death.

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However, there are many practical and ethical reasons as to why this is a topic of fierce debate:

Autonomy: Is it not reasonable to give each individual the right to decide for themselves when and how they die? Or should their autonomy be counterbalanced against the interest of society? Is there not also an issue of those who may be pressured into making that choice?

The sanctity of life: because society places a high value on life, ending lives should therefore not come down to whether a person wants to live or die

Dignity: should people not be allowed to have the option to end their suffering and protect those who are dying, as they become more dependent on others as time goes on?

The Cruelty Argument: taking the Academic Bachelard’s words, “we put down animals; why not humans?” Is there a difference? Some agree with the view, whilst other say that human life is more valuable than non-human life.

The doctor-patient relationship: some are of the opinion that legalising Euthanasia will undermine the special relationship between doctor and patient because patients may become hesitant in approaching doctors if there is a fear that the doctors can give the opinion that they should die.

A duty to die: some vulnerable individuals such as mentally ill may see Euthanasia as a way to lessen what they perceive to be a burden to others.

But is euthanasia right or wrong? Should driving someone towards the option of euthanasia, whether directly or indirectly, be criminalised? This debate will continue.

By Kimberly Nielsen in May 2018

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