First class medical law essay example: Is the distinction between acts and omissions significant in the regulation of medical involvement in end of life decisions? Should it be?

The distinction between acts and omissions, which is currently significant in the regulation of medical involvement in end of life decisions, should not be so. In Part I of this essay, I will set out the current law on medical involvement in end of life decisions as well as the reasons why the acts and omissions distinction is significant in its regulation. In Part II, I will present the arguments for constraining the distinction's significance and making more room for other important considerations. I will argue (i) that the distinction between acts and omissions is difficult to draw, and (ii) that it ignores relevant considerations and cannot bear the normative weight placed on it. In Part III I will outline an alternative means of regulating medical involvement in end of life decisions.

For the purposes of this essay, whether the acts and omissions distinction is significant will be assessed by reference to its doctrinal and practical influence, including its impact on legal reasoning, judicial decisions, and medical practice.

Part I: The current significance of the acts and omissions distinction

The acts and omissions distinction (henceforth 'the A/O distinction') is significant in the regulation of medical involvement in end of life decisions: it exerts both doctrinal and practical influence upon the way the law and medical practitioners respond to end of life situations. The law clearly prohibits the deliberate and active killing of patients, even where they request it themselves. Thus in R v Cox a doctor who had given his patient a lethal injection, after she had asked that he end her life, was convicted of attempted murder. By contrast, the Court of Appeal in R (Burke) v GMC found that a doctor's decision to withdraw ANH (artificial nutrition and hydration) against his patient's wishes was lawful. The law, then, draws what Lord Goff in Airedale NHS Trust v Bland called a "crucial distinction" between cases in which medical practitioners actively bring about patients' death, and cases in which they choose to withhold or interrupt treatment without which patients cannot live. Whereas the former fall under the 'act' side of the distinction and are unlawful, the latter, Lord Goff believed, could "be categorised as omission[s]" and may be lawful if they do not amount to a breach of the doctors' duty of care to the patient. The A/O distinction, then, influences legal reasoning and judicial decisions. As such, it is significant in the regulation of medical involvement in end of life decisions.

In addition to its doctrinal impact, the A/O distinction is also significant because of its influence on medical practice. Indeed, there is some evidence suggesting that medical practitioners themselves believe there is a morally significant distinction to be made between acts and omissions in end of life decisions, with one survey showing three quarters of UK medical practitioners hold that view. The GMC's own guidance on end of life care and assisted dying further adds to the A/O distinction's influence on medical practice: it makes clear that doctors can withhold treatment where they believe it would not serve the patient's needs, and it advises against encouraging or assisting suicide.

The upshot of this discussion is that the A-O distinction is significant in the regulation of medical involvement in end of life decisions: it influences legal reasoning and judicial decisions, and it shapes medical opinion and practice.

Part II: Should the A-O distinction be a significant part of the law?

The distinction is difficult to draw

The A/O distinction should not have its current significance in the regulation of end of life decisions because it is a difficult one to draw. Lord Goff himself acknowledged the difficulty in the House of Lords decision in Airedale, declaring that sometimes it "may be difficult to describe what the doctor actually does as an omission, for example where he takes some positive step to bring the life support to an end." The discomfort palpable in Lord Goff's characterisation of decisions to withdraw life-sustaining treatment as omissions was one which Lord Neuberger thought "understandable" in Nicklinson. Indeed, elsewhere the law characterises the very same action of withdrawing life-sustaining treatment as an unlawful act and not an omission. That would be the case where an interloper, to take Lord Goff's own example, maliciously switches off a life support machine. The A/O distinction, then, is not easily or exactly drawn along the line separating positive actions from omissions to act. Butler-Sloss LJ said as much in the Court of Appeal's decision in Airedale, stating that "whether [something] is an act or omission carries the matter no further." What the A/O distinction really addresses, as both Butler-Sloss LJ and Hoffmann LJ (as he then was) made clear in the CA decision in Airedale, and as the CA confirmed in Conway, is the causal difference "between an act or omission which allows causes already present in the body to operate and the introduction of an external agency of death." The A/O distinction is therefore a misnomer: its name does not accurately reflect the work the courts do when they apply the doctrine. Aside from the potentially undermining effect this may have upon rule of law principles like the clarity and accessibility of the law, the fact that the distinction does not present itself as it really is has the consequence of blurring the difficulties involved in making determinations as to causal efficacy. For example, it obscures that establishing whether something is an act or an omission requires, as McGee argues, a contextual assessment of the conduct or decision in question. It may be that such an assessment leads us to McGee's conclusion that withdrawal of life-sustaining treatment does not cause death, or it may be that it moves us to the opposite conclusion. The point here is that the A/O distinction obscures the difficulties, normative and otherwise, involved in assessing causal efficacy, and as such it should not occupy its significant place in the law governing end of life decisions.

The distinction obscures relevant considerations and is open to manipulation

This problem becomes evident when we examine the A/O distinction's application to the case of the malicious interloper. Could we not say that the interloper's decision to switch off life support simply allows an illness or other cause already present in the patient's body to operate, just like a doctor's similar decision would? If so, the rationale of the distinction would advocate against punishing the interloper, an unacceptable outcome. Looking at the situation through McGee's contextual lens, however, and following Butler-Sloss and Hoffmann LJJ's reasoning, one can respond that the malicious interloper is blameworthy and so deserving of the law's condemnation because he has introduced an external agency of death (i.e. by stopping the medical team from prolonging the patient's life). But this would not hold if the medical team had themselves already switched off the patient's life support, or if it had accidentally malfunctioned, and the interloper ignored it. Yet, intuitively, there would still be something morally reprehensible in the interloper's conduct in this last case.

This 'something' is what the A/O distinction fails to capture: the importance of the moral agent's intention. As Rachels would argue, there is no difference in the two interloper scenarios as far as blameworthiness is concerned: the difference between act and omission, and between killing and letting die, does not make a moral difference in these cases. Likewise, it can be argued that a doctor is, ceteris paribus, in the same moral position where she administers a lethal injection for X reasons (whether humane or inhumane) and where she withdraws life support and lets a patient die for the same X reasons. It is the reasons for, and the implications of, the act or the omission that really matter, and not the act or the omission themselves. Thus a strong case can be made, for example, that the doctor's decision to let a patient die against the patient's wishes in R (Burke) v GMC is more morally reprehensible than actively setting up a lethal injection delivery system for a capacitous patient to then activate. The former, in Lord Neuberger's own words, would entail "a more drastic interference in that person's life and a more extreme moral step" than the latter.

The point for our purposes is not about the correct balance to be struck between patient autonomy and other considerations. The point here is that the A/O distinction obscures the balancing act, does not leave room for important considerations, and cannot bear the normative weight the law currently places on it. As such, it should not have its current significance.

Part III: If not an A/O distinction, then what?

Instead of relying on an A/O distinction, the law should more expressly address the underlying considerations which end of life decisions engage. In doing away with the language of acts and omissions and striving to raise the underlying principles to the level of explicit discourse, the law could more clearly weigh competing aims and values at the heart of end of life decisions, thereby improving the regulation of medical involvement. It may be that this change is for Parliament, and not the courts, to make–but it remains a change we ought to make.

One could argue that the A/O distinction allows medical practitioners to do their work, insofar as a majority of them believe there is a moral difference between active and passive euthanasia. The central function of the law here, the argument would go, is the instrumental one of enabling health workers to do their work effectively. If doing away with the A/O distinction would expose medical practitioners to unsustainable emotional stress or moral indignation, then the law ought to retain it, whatever the distinction's philosophical shortcomings. This, however, ignores the impact the law itself can have in shaping medical opinion and practice. Perhaps if the law more clearly addressed the competing considerations, the medical body would shift in its assessment of the moral significance of active and passive euthanasia.

For these reasons the A/O distinction should not have the significance it currently has in the regulation of end of life decisions.