MERCIFUL ACTS AND CRUEL OMISSIONS

Abstract

Criminal law draws a clear distinction between positive acts that cause death, and omissions to do acts that would prevent death. Judges have relied on the differentiation between acts and omissions to determine whether a medical killing is unlawful. However, this act-omission distinction is not an appropriate criterion for determining the lawfulness of the actions of doctors who assist patients who want to die, particularly in cases where competent patients suffer from a medical condition that prevents them from actively killing themselves. This inconsistent application of the act-omission distinction is evident in cases of adult conjoined twins and patients who suffer from locked-in syndrome. Instead, the law should give effect to the rhetoric of respect for patient autonomy and dignity, and regard the consent of a patient of full capacity, in conjunction with the defence of necessity as a complete defence for doctors who help these patients to die a dignified and painless death.