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Voluntary Euthanasia and the Common Law
  1. J Miola

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    M Otlowski. Oxford University Press, 2000, £25, pp 564. ISBN 0-19-829868-4

    At first sight, this might not seem like the sort of book in which an ethicist would be interested. Such fears are compounded when one reads in the introduction that the book is “primarily a legal analysis” of the issues (page 4). It is liberally sprinkled with footnotes, mainly legal in nature, and surely we do not need another book about euthanasia? But we do, and this book is not only one ethicists can read, it is also one they should read. Otlowski argues that any examination of this subject matter necessarily involves “consideration of wider issues, including social change, as reflected in opinion polls and community agitation for reform, the practice and attitudes of the medical profession, as well as consideration of religious, moral, and ethical arguments” (page 4); and this is what the book provides. Thus, it is much more than a legal analysis, though everything in the book flows from this.

    The main thesis presented is that the law does not in practice reflect or enforce the reality of doctor-patient contacts at the end of life. Rather, there exist “discrepancies” (page 128) between the theory and the practice of law, and an inherent “hypocrisy” (page 150) in what the law actually does when confronted with these cases. Otlowski argues that in practice criminalising voluntary euthanasia is counterproductive. She highlights two possible effects: first, medical decisions may not in practice be susceptible to evaluation by the courts, leading to a lack of regulation; and, second “there is a real risk of abuse if the law condones what is an unregulated practice” (page 151).

    The process through which these effects come about is simple, Otlowski claims. She shows how in selected countries, whilst voluntary euthanasia is illegal (this is the theory), there is evidence of an empirical nature that doctors are, in fact, helping their patients to die. Furthermore, the law, via such “legal fictions” and “unworkable distinctions” as those between “acts/omissions” and “killing/letting die”, is complicit in the deception. What is left, she argues, is a regulatory vacuum.

    Otlowski argues that there appears to be little interest in the law’s strict enforcement, the “most significant point to emerge from the . . . analysis is the scarcity of cases involving the prosecution of doctors . . .. This contrasts markedly with the available information regarding doctors’ practices” (page 147). This is of course not only a matter for the law, for if, as Otlowski claims, voluntary euthanasia is practised this raises important ethical questions.

    The book continues by considering not only options for reform, but also the desire for it. We are treated to the results of opinion polls in various countries throughout the world, a “case study” of the Dutch experience, and more insight into the distinction between the theoretical and the real. It is here that the book is at its best, and of most help to ethicists; for what Otlowski attempts is to tear us away from the doctrinal and hypothetical, and push us towards an acceptance of reality. She mourns the repeal of the Rights of the Terminally Ill Act 1995 in the Northern Territory of Australia, as legalisation allows us the opportunity to “examine, over time, the impact of laws governing active voluntary euthanasia” (page xxiv). Thus the message for ethicists is this: do not be bogged down in dogma, for that is how we arrived at the situation we are in now. Rather, our ethical response should be shaped by the reality of what works, so crossing the Rubicon from the hypothetical to the practical.

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