Human rights and assisted suicide

The Human Rights Act 1998, which came into force in the UK in October 2000, has not prompted the flood of litigation or radical decisions that some commentators predicted. There was speculation, for instance, that the act might be used to challenge the current law on assisted suicide and in fact this has been considered in detail by the courts.

A woman with motor neurone disease applied to the court for a guarantee that if her husband helped her to commit suicide, he would not be prosecuted.¹ Discussion was particularly interesting in the court of first instance prior to the case going to the House of Lords in November 2001. Although the case before the court of first instance fell on other grounds, the human rights issues were addressed in detail.

Assisting suicide is illegal in the UK under the Suicide Act 1961. “A person who aids, abets counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years.”² The court heard it argued that this universal prohibition on assisting suicide was incompatible with the rights of a person who wanted to commit suicide, and was mentally competent but physically unable to do so.

The conflict between two fundamental human rights in the European Convention on Human Rights³—the right to life (article 2) and the right to decide what will and will not be done with one's own body (article 3)—was central to the case. Article 2 requires states to prevent people being “deprived of life”. It doesn't, however, require states to take positive steps to force life on the unwilling. Thus the court concluded that article 2 might permit the state to allow assisted suicide, but it does not require the state to allow it.

The court also found that the act did not give people a right to die or oblige the state to assist that process. If it did, the court argued, people attempting suicide could not be saved by medical intervention for fear that they would have a claim for wrongful life, and that outcome was contrary to public policy. The court also argued that the right in article 3 to be free from “torture or inhuman or degrading treatment or punishment” was a right to live with dignity, not to die with dignity. Taking active steps to bring life to a premature end was different from not taking futile and undignified steps to prolong life beyond its natural end.

Lord Justice Tuckey, in his judgment, said that all the indications were that democratic opinion in the United Kingdom was unready for a change on the issue of assisted suicide. He said there was no reason to suggest that the legitimate aims underlying the prohibition on assisting suicide had become less powerful since the 1961 Suicide Act was enacted, or that the current law was a disproportionate response to those aims.¹

The case came at a time when Belgium was set to become the second country in the word to legalise euthanasia.

Globalisation: health care and ethics

Although globalisation, as a term, is as ubiquitous as it is contested, there is none the less clear evidence that the market in health care is becoming steadily more international—that national borders in this sphere are gradually becoming more porous. This process has taken on several recognisable concrete forms. Firstly there has been an acceleration in the migration of health care professionals. Doctors, in possession of highly marketable skills, have long been among the more mobile members of the workforce, moving in search of specialist training, to offer their skills in the developing world or to improve their standard of living. In recent years this process has been repeated by other health care groups, such as nurses, who have demonstrated a similarly complex pattern of motive. Secondly there has been an increase in what is colloquially known as “health tourism”. This involves patients travelling abroad in search of treatment, either because it is simply not available in their own country or because it is cheaper, more sophisticated or available more rapidly elsewhere. For example, private health care providers in developed countries are very interested in taking advantage of specialist clinics in less developed countries that can offer sophisticated medical treatment at discounted prices. Moving in the opposite direction, affluent patients in developing countries are free to take advantage of private health care in Western countries. In the UK there is also anecdotal evidence of a more clandestine trade, known as National Health Service (NHS) tourism, in which overseas visitors come to the UK to make illegal use of free medical care on the NHS. And lastly there is the development of trade-bloc treaties in which countries formally agree to provide cross-border health care where appropriate. For example, a recent ruling by the European Court of Justice defined health care as a service and gave UK residents the right to travel to Europe for health care where they were subject to “undue delay” at home.⁴ All these aspects of the “globalisation” of health care are becoming better documented. Very little attention has been paid, however, to the ethical dimensions of this process.

Clearly the ethical ramifications of these changes are potentially enormous and here we offer only a few signposts. It is possible to make an initial separation between three broad areas of ethical significance. Firstly there is the general question of distributive justice. The idea that developing countries, whose own populations have limited access to scarce resources, are providing advanced medical treatment for paying guests from overseas raises important ethical questions about access to health resources. Against this, however, needs to be set both the economic importance of the trade in services for developing countries, and the central ethical issue of national self determinism. Arguably a more pressing issue for developing countries is the loss of their health care staff through migration. This has may have been exacerbated by the mismanagement of medical workforce planning in some Western countries, which has led to significant shortages. The loss of highly trained medical staff, who represent a considerable investment of limited resources, to higher paying jobs in the West is critical for developing countries. Against this, however, needs to be set the free-movement and self-determining rights of doctors. The development of contracts that oblige doctors to work for their own national health services for a predetermined period of time might be a way forward. It is worth noting in this context that the UK government has committed itself to an ethical recruitment policy that precludes “poaching” doctors from developing countries.

The second area of ethical concern is, loosely speaking, cultural. There has long been a conflict in ethical thought between the desire to assert values that are applicable to all people at all times, and the recognition that values emerge from specific practices in specific cultures. It is vital therefore that patients who cross borders for medical treatment realise that their host countries may place a different emphasis on a variety of ethical and legal issues. As an example, the recent ruling by the European Court of Justice relating to cross-border health supply already mentioned raises the spectre of terminally ill patients from the UK travelling to the Netherlands where euthanasia is legal.⁴ Furthermore, medical culture in the UK is currently going through a sea-change in its approach to a number of issues, with a noted emphasis on patient-agency. Other countries may have a very different approach. For example, there has been considerable ethical debate about a North/South divide in the ethics of consent, with Latin countries allegedly being more prone to support paternalism and the concealing of bad news from patients than cultures which emphasise patient autonomy. As ethical standards or codes of practice are more often implicit rather than explicit, health care workers who travel abroad may find themselves in unwitting contravention of ethical norms which could have serious professional repercussions.

The third area of concern is more practical. Take for example the recent initiative by two southern English health authorities to explore the possibilities of sending substantial groups of patients to Europe for treatment. The logistical difficulties involved raise a series of ethical concerns. For example, how should medical records be handled? Should they be translated and if so by whom? How can confidentiality be guaranteed in societies where custom and practice are looser? Where there are language difficulties, how can informed consent be given, and what about continuity of care? Furthermore, cultural values are often, if imperfectly, enshrined in national legal codes. Legal practice will therefore inevitably differ from country to country and these differences will need to be taken into account when patients move across national boundaries.

The organ market

Another facet of globalisation can be seen in the trade in human organs. Organs are allegedly taken from executed prisoners in Taiwan and in some parts of South America but China is by far the leading supplier of kidneys, livers, lungs, corneas and other organs stripped from executed prisoners and transplanted into visiting overseas patients. In the early 1990s, the British Medical Association challenged surgeons in Taiwan about this practice, which had grown up partly because of local religious and cultural opposition to cadaveric donation. Donation by prisoners was portrayed at that time as an act of contrition for their crimes, “the desire of contributing love to society” and a reflection of differing cultural values.⁵

In 1984 regulations were issued specifying how the harvesting of organs should be conducted at Chinese execution sites but it is unclear how closely these are followed. Evidence published in The New York Times⁶ October 2001 reported that some organs were removed in ambulances carrying the executed prisoners between the execution site and the crematorium, and a witness reported that kidneys were sometimes removed before the donor ceased breathing. China reportedly provides kidney transplants at a cost of US$6,000 for residents and between US$10,000 and US$50,000 for overseas visitors. Estimates of annual executions in China vary but may be as many as 10,000. Over 5,000 kidney transplants were reported in 2000. Military hospitals dominate the harvesting and transplanting. Of primary ethical concern is that the prisoners are not asked to consent and some are convicted after forced confessions.

The United States is reportedly considering legislation to try to prevent Chinese doctors studying transplantation techniques in the US and American doctors have been concerned by the need to provide after-care for patients who have undergone transplant operations in China and Taiwan. Lively debate about the ethics of using organs from executed prisoners occurred in Florida in 2000, when draft legislation in Florida proposed the use of organs from death row inmates after execution. This is unlikely to become law.