Ethical and legal issues near the end of

life
This reading supports the joint teaching in Palliative Care and Ethics & Law which will be
delivered during R&I week B for standard course and MBPhD students, and during Clinical
Skills 2 for graduate-entry students. There will be two workshops: one covering the current
framework governing end of life care in the UK, and another covering the assisted suicide
debate.

This unit will build on material introduced in the lecture on End of Life that you attended as
part of the SECHI medical ethics and law course in Year One. Knowledge of the material
covered in CEL 1 (Capacity, Consent & Best Interests) CEL 2 (Confidentiality, Disclosure &
Information Governance) and the Year 4 Palliative Care teaching on Resuscitation Decisions
will be assumed. You will also have the opportunity to learn more about some of the topics
raised in this unit later in the course: Year 5 Palliative Care teaching on Care after death, and
the Death & Dying course in Year 6.

Objectives1
Students should be able to:
 Analyse the concepts used in ethical discussions about end of life care, including autonomy,
dignity, futility, sanctity and quality of life, best interests, and unfair discrimination on the
grounds of age (6b, 6g, 6e, 6f, 7i, 14j, 15, 18l)
 Consider any limits that should be placed on health care provision, including inappropriate
admission to hospital, provision of invasive treatment and intensive care technologies, and the
role that advance care planning plays (14n,16e, 15)
 Discuss and evaluate when to withhold or withdraw life-sustaining treatment (LST) such as
ongoing ventilator support and clinically assisted nutrition and hydration (6e, 6g, 15)
 Analyse the ethical implications of the law relating to decisions not to offer resuscitation, and
apply the law to individual cases (4, 6e, 6f, 6g, 15)
 Describe the legal requirements for valid advance decisions, and analyse their ethical
implications (4, 11, 11f, 15)
 Describe the role of Lasting Power of Attorney with respect to healthcare decisions (4)
 Analyse the ethical and legal arguments around assisted dying (2c, 4)
 Analyse the relevance of definitions of death and personhood (2c)
 Analyse ethical and legal issues regarding organ donation (2c, 4)
 Demonstrate respect for diverse cultural practices at the end of life (2b, 6b, 14) Identify the
legal requirements for death certification and the ethical obligations to the deceased and their
family (4)

1
These objectives are taken from the Institute of Medical Ethics’ Core Curriculum for Undergraduate
Medical Ethics and Law (2019), designed to ensure that your learning in this area covers the
requirements of the GMC’s Outcomes for Graduates (2018) – shown in brackets in the objectives
above.

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Care at the end of life: key principles
The general principles that we discuss throughout the Ethics & Law course still apply when
considering treatment of patients nearing the end of life. Your decisions as to whether to offer
treatment will still be based on an assessment of the potential benefits and burdens of that
treatment. The decisions of patients to consent to or refuse treatment should still be respected,
even if they will lead to the death of the patient, provided that the decision was voluntary,
informed and competent. If a patient lacks the capacity to make a particular treatment
decision, the provisions of the Mental Capacity Act 2005 should still be followed. However,
because the consequences of withholding or withdrawing life-sustaining or potentially life-
saving treatment are so grave, these decisions are more difficult to make, and some additional
legal safeguards are in place.

The GMC provides five key principles:

Equality: You must give patients who are approaching the end of their life the same quality
of care as all other patients. You must treat patients and those close to them with dignity,
respect and compassion, especially when they are facing difficult situations and decisions
about care. You must respect their privacy and right to confidentiality.

Presumption in favour of preserving life: Following established ethical and legal

(including human rights) principles, decisions concerning potentially life-prolonging
treatment must not be motivated by a desire to bring about the patient’s death and must start
from a presumption in favour of prolonging life. This presumption will normally require you
to take all reasonable steps to prolong a patient’s life. However, there is no absolute
obligation to prolong life irrespective of the consequences for the patient, and irrespective of
the patient’s views, if they are known or can be found out.

Presumption of capacity: You must work on the presumption that every adult patient has
the capacity to make decisions about their care and treatment. You must not assume that a
patient lacks capacity to make a decision solely because of their age, disability, appearance,
behaviour, medical condition (including mental illness), beliefs, apparent inability to
communicate or because they make a decision that others disagree with or consider unwise.

Maximising capacity: If a patient’s capacity to make a decision may be impaired, you must
provide the patient with all appropriate help and support to maximise their ability to
understand, retain, use or weigh up the information needed to make that decision or
communicate their wishes. You must assess their capacity to make each decision, at the time
it needs to be made.

Overall benefit: If an adult patient lacks capacity to decide, the decisions you or others make
on the patient’s behalf must be based on whether treatment would be of overall benefit to the
patient, and which option (including the option not to treat) would be least restrictive of the
patient’s future choices. When you are responsible for making the decision about overall
benefit, you must consult with those close to the patient who lacks capacity, to help you reach
a view.

Withholding and withdrawing treatment

As GMC guidance recognises:

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 ‘the most challenging decisions in this area [end of life care] are
generally about withdrawing or not starting a treatment when it
has the potential to prolong the patient’s life. This may involve
treatments such as antibiotics for life-threatening infection,
cardiopulmonary resuscitation (CPR), renal dialysis, ‘artificial’
nutrition and hydration (for the purpose of this guidance
‘artificial’ is replaced by ‘clinically assisted') and mechanical
ventilation.

The evidence of the benefits, burdens and risks of these

treatments is not always clear cut, and there may be uncertainty
about the clinical effect of a treatment on an individual patient,
or about the particular benefits, burdens and risks for that
patient. In some circumstances these treatments may only
prolong the dying process or cause the patient unnecessary
distress. Given the uncertainties, you and others involved in the
decision-making process may need reassurance about what is
ethically and legally permissible, especially when deciding
whether to withdraw a potentially life-prolonging treatment.’
The legal definition of medical treatment includes providing nutrition through a PEG tube or
central line, providing fluids for hydration through a drip, and mechanical ventilation. All
forms of treatment may be withheld or withdrawn if a) they are refused by a patient who has
the capacity to make that decision or b) they are of no overall benefit to the patient.

Competent refusals
Even though an action like switching off a ventilator will result in the death of the patient, it is
still a lawful withdrawal of treatment and not unlawful euthanasia. Why is this?

In 2002, a case concerning a woman known as Ms B highlighted the some of the difficulties
inherent in decisions to withdraw life-sustaining treatment. Ms B, a social worker in her early
forties, was living a full and active life until she became paralysed and dependent on a
ventilator as a result of an intramedullary cervical spine cavernoma. She was paralysed from
the neck down but conscious and capable of speech with the assistance of a speaking valve.
She was totally dependent on her carers, who fed, clothed and washed her and assisted with
her bodily functions. Her life was supported by artificial ventilation through a tracheostomy.
Without the help of artificial ventilation, according to the medical evidence, she would have a
less than 1% chance of independent ventilation, and death would almost certainly follow.

She expressed her view on her situation like this:

“Given the range of choices, I would want to recover and have my

life back, or significant enough recovery to have a better quality
of life. I am not convinced from the evidence that that is going to
happen, and I find the idea of living like this intolerable."
She asked her doctors to withdraw ventilation. However, her doctors were reluctant to do so.
They were understandably reluctant to take a step that seemed close to actively ending the life
of this woman. It fell to the court to decide what should happen next.

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The court confirmed the legal position that had been stated in the 1997 case Re MB:

‘A mentally competent patient has an absolute right to refuse to

consent to medical treatment for any reason, rational or
irrational, or for no reason at all, even where that decision may
lead to his or her own death’

(The facts of Re MB were rather different from Ms B’s case, as they concerned refusal of a
caesarean section, but the same principle about respecting refusals of treatment made by
patients with sufficient mental capacity applies)

Whilst sympathetic to the concerns expressed by Ms B’s doctors, the court confirmed that
they had no legal justification for continuing to treat her (by continuing artificial ventilation)
in the face of her competent refusal. She was transferred to another hospital where a new
team, who had not developed close emotional ties to her, managed the withdrawal of her
artificial ventilation and she died shortly afterwards.

In Ms B’s case, withdrawing ventilation did not amount to unlawful killing. It was the
underlying damage to her central nervous system that caused her death. To put it another way,
switching off a ventilator is not active killing in the way that smothering with a pillow is. It is
omitting to preserve life rather than actively ending it.

In this respect, the law treats acts and omissions differently. It is unlawful to kill, but not
necessarily unlawful to omit to preserve life. The concept of an act/omission distinction is
contested, particularly by consequentialist thinkers who argue that it is the results of
behaviour, not the behaviour itself, that determine its moral significance (see the entry on
Utilitarianism in the Introductory Unit to this course). We shall return to this controversy later
in this Unit, in the section on euthanasia. For now, just bear in mind that competent refusals
of treatment, even treatment that is the only thing keeping the patient alive, must be respected.

Conscientious objection

The GMC provides guidance on conscientious objections to withdrawal of life-sustaining

treatment:

‘You can withdraw from providing care if your religious, moral or

other personal beliefs about providing life-prolonging treatment
lead you to object to complying with:

(a) a patient’s decision to refuse such treatment, or

(b) a decision that providing such treatment is not of overall

benefit to a patient who lacks capacity to decide.

However, you must not do so without first ensuring that

arrangements have been made for another doctor to take over

4
 your role. It is not acceptable to withdraw from a patient’s care if
this would leave the patient or colleagues with nowhere to turn’.

No overall benefit
Assessing overall benefit is not simply a matter of assessing the likely benefit to health.
However, even this assessment may be difficult near the end of life, as the GMC
acknowledges:

‘The benefits of a treatment that may prolong life, improve a

patient’s condition or manage their symptoms must be weighed
against the burdens and risks for that patient, before you can
reach a view about its overall benefit. For example, it may be of
no overall benefit to provide potentially life prolonging but
burdensome treatment in the last days of a patient’s life when the
focus of care is changing from active treatment to managing the
patient’s symptoms and keeping them comfortable. The benefits,
burdens and risks associated with a treatment are not always
limited to clinical considerations, and you should be careful to
take account of the other factors relevant to the circumstances of
each patient.’

The Royal College of Paediatrics and Child Health has also issued guidance on situations
where it may be appropriate to withdraw treatment. They suggest that the following situations
may make it inappropriate to treat to sustain life:

a) such treatment would be medically inappropriate and could not achieve its intended
purpose of preserving life or restoring health e.g. brain death, imminent death or
inevitable demise.
b) treatment would no longer be in the best interests of the child in that its burdens
outweigh the benefits e.g .due to burdens of treatment such as renal dialysis or
intensive chemotherapy, burdens of the illness and/or underlying condition such as
advanced treatment-resistant malignancy or severe epidermolysis bullosa, or lack of
ability to derive benefit such as in persistent vegetative state or minimally conscious
state.
c) a competent child refuses to consent to the starting of treatment or requests that it be
discontinued

This guidance rejects the most extreme form of the principle of sanctity of life: vitalism.
Vitalists hold that human life is an absolute good. Not only is it always wrong to take human
life, but whenever possible, human life should be maintained.

However, the guidance is not necessarily inconsistent with a conception of sanctity (or
primacy) of life that sees human life as a basic, but not absolute, good. To say that life is a
basic good is to say that life has intrinsic value beyond its instrumental value in enabling

5
people to have positive experiences. In this school of thought, a life that appears to confer
very little or no benefit to the person living it remains valuable and worth preserving.
However, to say that life is not an absolute good means that preserving life should not
necessarily outweigh all other goods (it may be justified to withdraw resources from attempts
to prolong life for a few days, in order to save others, or to stop preserving a life in the
interests of reducing suffering).

In practice, these are difficult decisions to make. When is alleviation of suffering

insufficiently significant to justify treatment? What is the degree of impairment that is so
great that someone cannot reasonably be expected to bear it?

These issues were raised in the case brought by Leslie Burke, who challenged the legality of
the GMC’s guidance on withdrawal of treatment, on the grounds that it was incompatible with
the Human Rights Act, specifically the right to life. Although Mr Burke’s challenge was
ultimately unsuccessful and the GMC’s guidance was found to be compatible with the Human
Rights Act, it is instructive to consider the case.

Mr Burke suffered from cerebellar ataxia, a progressive neurological condition affecting

motor co-ordination. An eminent consultant in neurology and rehabilitation medicine
described "the likely scenario during the final days of Mr Burke's life" as follows:

"he will by then be bed bound and communicating via a

computerised device. He would then become unwell with either a
chest or urinary tract infection and within a few days would
become increasingly obtunded and lose the ability to use his
communication aid. If medical treatment for the underlying
infection is unsuccessful he would become progressively weaker
and semi-comatose and then succumb."
This appears to fit into the category of the ‘no chance’ situation described above.

Mr Burke’s concern was that doctors would then decide that treatment, including artificial
nutrition, was no longer in his best interests as it would simply be prolonging his death. He
explained that:

"What I am frightened of most is that there will come a time

when I have lost the capacity to communicate but am aware that
the hospital has decided to stop feeding me. Once they withdraw
artificial nutrition it will take between two and three weeks for
me to die. I will be lying there in great distress but unable to tell
any one that I want to live.”

The court was reluctant to compel doctors to provide treatment that did not appear to provide
any meaningful benefit and seemed likely to simply prolong suffering. However, the case did
prompt the GMC to revise its guidance, emphasizing that:

‘You must be careful not to rely on your personal views about a

patient’s quality of life and to avoid making judgements based on
poorly informed or unfounded assumptions about the healthcare

6
 needs of particular groups, such as older people and those with
disabilities.’

Mr Burke, living with a disability, clearly valued his life enormously. His concern that the
withdrawal of ANH if he were semi-comatose and dying from an untreatable infection would
cause unbearable suffering might well have been misplaced, if entirely understandable. But
the fact that he chose to bring this case highlights another concern – perhaps we, as doctors,
are sometimes too quick to say that treatment has ‘no purpose’, especially when it comes to
prolonging the life of someone with a serious disability or who is frail and elderly.

The GMC’s recommended process for making decisions about end of life treatment, including
advance care planning, with people facing the end of life who retain decision- making
capacity:

1. The doctor and patient make an assessment of the patient’s condition, taking into
account the patient’s medical history, views, experience and knowledge.
2. The doctor uses specialist knowledge and experience and clinical judgement, and the
patient’s views and understanding of their condition, to identify which investigations
or treatments are clinically appropriate and likely to result in overall benefit for the
patient
3. The doctor explains the options to the patient, setting out the potential benefits,
burdens and risks of each option. The doctor may recommend a particular option
which they believe to be best for the patient, but they must not put pressure on the
patient to accept their advice.
4. The patient decides whether to accept any of the options and, if so, which. They also
have the right to accept or refuse an option for a reason that may seem irrational to
the doctor or for no reason at all.
5. If the patient asks for a treatment that the doctor considers would not be clinically
appropriate for them, the doctor should discuss the issues with the patient and explore
the reasons for their request. If after discussion, the doctor still considers that the
treatment would not be clinically appropriate to the patient, they do not have to
provide the treatment. They should explain their reasons to the patient and explain
any other options that are available, including the option to seek a second opinion or
access legal representation.

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The ReSPECT form has been developed by Dr Zoe Fritz and her team, based in
Addenbrooke’s, to guide conversations between patients and healthcare professionals, in
order to create an improved understanding of personal priorities for care at the end of life (eg.
whether sustaining life or maintaining comfort is more important to the patient).

8
The MCA 2005 and life-saving or life-sustaining treatment

The process outlined on the previous page is not appropriate for patients who do not have the
capacity to make decisions about their treatment. In such cases, you must act within the
framework provided by the Mental Capacity Act. As we saw in CEL 1, there are some special
provisions that apply to decisions about life-saving or life-sustaining treatment:

(5) An advance decision is not applicable to life-sustaining treatment unless—

(a) the decision is verified by a statement by P to the effect that it is to apply to that treatment even if
life is at risk, and
(b) the decision and statement comply with subsection (6).
(6) A decision or statement complies with this subsection only if—
(a) it is in writing,
(b) it is signed by P or by another person in P’s presence and by P’s direction,
(c) the signature is made or acknowledged by P in the presence of a witness, and
(d) the witness signs it, or acknowledges his signature, in P’s presence.

Advance Decisions to refuse life-saving or life-sustaining treatment are only valid if they are
written, signed and witnessed, and if they include a statement that the person making the AD
intends it to be respected, even if his or her life is at risk.

The tone of the Act is that you should be confident that it was your patient’s intention to
refuse this treatment. This is because respecting an AD can involve with-holding treatment
that you would normally consider to be in the patient’s best interests, with grave and
irreversible consequences for the patient. Nonetheless, valid ADs must be respected. so is
equivalent to treating a patient without gaining their consent. As we have seen in CEL 1,
failure to do is treated by the law as a form of assault. However, there is protection for doctors
dealing with cases where the validity of the AD is unclear, or where the existence of an AD
was not revealed to the doctor.

s26 Effect of advance decisions

(2) A person does not incur liability for carrying out or continuing the treatment unless, at the time, he
is satisfied that an advance decision exists which is valid and applicable to the treatment.
(3) A person does not incur liability for the consequences of withholding or withdrawing a treatment
from P if, at the time, he reasonably believes that an advance decision exists which is valid and
applicable to the treatment.
(4) The court may make a declaration as to whether an advance decision—
(a) exists; (b) is valid; (c) is applicable to a treatment.
(5) Nothing in an apparent advance decision stops a person—
(a) providing life-sustaining treatment, or
(b) doing any act he reasonably believes to be necessary to prevent a serious deterioration in P’s
condition,
while a decision as respects any relevant issue is sought from the court.

9
In effect, if you are unsure whether or not a valid AD that is applicable to the treatment you
are proposing exists, then you should apply to the court of protection for clarification and, in
the meantime, provide treatment necessary to save life and prevent serious deterioration.
Provided you were acting in good faith, you will not be held liable for the consequences of
treating a patient because you did not believe there was a valid AD prohibiting that treatment,
or of not treating a patient because you did believe there was a valid AD prohibiting that
treatment.

When the Bill that became the Mental Capacity Act was being debated in Parliament,
concerns were expressed that it could be interpreted as legalising euthanasia. The following
clause was inserted to clarify that this was not the intention of Parliament when it passed this
Act:

s4 Best interests
(5) Where the determination relates to life-sustaining treatment he must not, in considering whether
the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his
death.

This does not mean that withdrawal of life-sustaining treatment is prohibited. It does mean
that decisions about the withdrawal of life-sustaining treatment must be made on the basis of
whether or not the treatment is in the best interests of the patient (what is the overall benefit?
is the treatment futile? Is it overly burdensome to the patient?) and not on whether continuing
to live is in the best interests of the patient.

Decisions not to attempt cardiopulmonary resuscitation

We have seen that it is not always considered appropriate to provide medical treatment, for
example when the treatment would be futile, when the burdens clearly outweigh the benefits
or when a patient refuses treatment. When a decision is made that cardio-pulmonary
resuscitation should not be attempted for such reasons, a ‘do not attempt cardiopulmonary
resuscitation’ (DNACPR) order should be recorded in the notes.

In general, you should consider a DNACPR order if CPR is

 unlikely to be successful.
 not in accord with the recorded, sustained wishes of the patient
 not in accord with a valid applicable advance decision
 clinically inappropriate – likely to be of no overall benefit to the patient bearing in
mind the burdens of treatment and the length and quality of life which would follow,
should the patient survive the CPR attempt.

Most often, DNACPR decisions are made on the grounds that resuscitation is not expected to
be successful – either that it is not expected to restart the heart and breathing, or that it is
unlikely to restore any more than a minimal quantity and/or quality of life (perhaps a few
days in an ICU). In these circumstances, CPR is generally described as being ‘futile’. But we
should not lose sight of the fact that this judgement involves an estimate of the probability of
success and an evaluation of what counts as a successful outcome. Some patients would want

10
to take a 1% chance of survival, even if that would involve a great deal of suffering. Others
might view a cardiac arrest as the natural end of life, and prefer not to be subjected to a
resuscitation attempt, even with a 60% chance of success. These decisions should not be
made by one doctor (and certainly not by one relatively inexperienced doctor) in isolation.

When no decision has been made, CPR should be attempted unless:

 The patient has refused
 The patient is in the terminal phase of illness
 The burdens of treatment outweigh the benefits

As the consequences of these decisions are serious, careful guidance has been prepared by the
Resus Council UK. This includes a decision-making summary, illustrated below.

A policy that CPR should not be attempted on any patient on a particular ward or in a nursing
home is not acceptable. A decision not to attempt CPR should not lead to an erosions in the
standard of care, or become a code for ‘giving up’ on a patient. If a patient is at risk of cardio-
respiratory arrest, their views on CPR should be elicited and taken into account when making
a decision about whether a DNAR order would be appropriate.

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12
Actively hastening death
So far, we have only been considering practice that could be classified as ‘allowing a patient
to die naturally’. This section of the unit also covers legal and ethical issues concerning
deliberate actions that result in a patient’s death.

Terminology
The terminology used in the bio-ethical literature can be confusing. The term ’euthanasia’ is
derived from the Greek eu thanatos meaning good or easy death.

Euthanasia occurs when person A’s death is deliberately and intentionally hastened by person
B, because person B believes this is the only way to help person A.

It is further classified as active/passive and voluntary/non-voluntary/involuntary:

EUTHANASIA Active e.g. passive

Voluntary Intentionally killing Intentionally allowing
someone, with their consent, someone to die, with their
for their benefit. consent, for their benefit.
Non-voluntary Intentionally killing Intentionally allowing
someone, who lacks someone, who lacks
capacity to consent, for their capacity to consent, to die,
benefit for their benefit
Involuntary Intentionally killing Intentionally allowing
someone, against their someone to die, against their
expressed wishes, for their expressed wishes, for their
benefit benefit

All forms of euthanasia are illegal in the UK. However, not all forms of treatment that result
in a patient’s death are euthanasia. Unintended death as a result of fatal side-effects of
treatment administered with therapeutic intent is not euthanasia. Such deaths, provided the
standard of care leading to the administration of the treatment was not negligent, carry no
legal liability for the doctor involved. Withdrawal of life-sustaining treatment which has been
declined by the patient, or is of no overall benefit to a patient who lacks capacity to consent or
decline, is not euthanasia (despite sometimes being described as such in the press) – it is good
practice, and the legal duty of the doctor (who would be committing assault by continuing to
administer the treatment under those circumstances).

Physician assisted suicide refers to the practice of providing to a patient the means to end
their own life (for example, by prescribing a dose of sedative medication large enough to
bring about loss of consciousness and respiratory depression, with the intention that the
patient use this to end their own life). Assisted dying refers to the practice of providing to a
terminally ill patient the means to end their own life, thereby enabling them to die more
quickly than they would naturally. It can be thought of as a form of assisted suicide that can
only be provided to patients who are expected to die naturally in the foreseeable future.

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Active euthanasia

In English law, the legal definition of murder is when a person:

 Of sound mind and discretion (i.e. understands that they are killing another human
being);
 unlawfully kills (i.e. not in self-defence);
 any reasonable creature (human being);
 in being (born alive and breathing through its own lungs);
 under the Queen's Peace (not in war-time);
 with intent to kill or cause grievous bodily harm (GBH).

(Source: Crown Prosecution Service)

All forms of active euthanasia are unlawful, because they involve intentional killing. The
person who administers euthanasia has committed the crime of murder. The consent of the
victim and the benevolent motivation of the killer are not accepted as legal defences to
murder in the UK. Anyone convicted of murder is subject to a mandatory life sentence.

This is not the case in all jurisdictions. In Holland, a doctor may be absolved of criminal
liability for intentionally killing a patient, provided the case falls within the Dutch definition
of euthanasia and certain procedural safeguards are adhered to. For a case to be accepted as
euthanasia, the patient must have consented, and the doctor must be of the opinion that ending
the patient’s life is necessary for the doctor to be able to fulfil his or her professional duty to
alleviate a patient’s unbearable suffering.

In cases where the person whose actions resulted in the death of another person had no
intention of killing or causing grievous bodily harm, there is no liability for murder. If a
doctor administers medication with the intention of controlling symptoms, preventing disease
or treating underlying pathology, and the patient dies as a result, this is not murder.

Passive euthanasia

Withdrawal of life-sustaining treatment at the request of the patient or, in the case of young
children, their parents is often described as passive euthanasia. This is not entirely accurate –
most cases of treatment withdrawal are not euthanasia, because the doctor’s intention is to
comply with their own legal obligations, not to hasten the patient’s death. It is the intentions
of the medical staff, not the patient, that the law considers relevant here.

As you learned in CEL1 (Consent, Capacity and Best Interests), the legal basis for providing
medical treatment is that the doctor either has the patient’s consent (or the consent of a parent
where the patient is a child), or is acting in the best interests of a patient who is unable to give

14
consent because they lack the relevant decision-making capacity. Administering treatment in
the absence of one of those justifications is illegal (it is deemed to be assault).

When a patient asks you to withdraw life-sustaining treatment, they are, in effect,
withdrawing their consent. Once you are satisfied that your patient has made a voluntary,
informed, competent decision, you would be breaking the law if you tried to keep them alive
by administering the treatment that they do not consent to. Even if you know that your patient
is almost certain to die if you withdraw the treatment, treatment withdrawal under these
circumstances does not constitute intention to hasten the patient’s death. Your intention is to
comply with your legal obligation to respect your patient’s autonomy and to avoid
committing unlawful assault. Therefore, treatment withdrawal under these circumstances is
not passive euthanasia; it is lawful, good practice.

Cases involving patients who lack capacity are more complex. As you learned in CEL
Workshop 1, and revised earlier in this Unit, when treating a patient who currently lacks the
relevant decision-making capacity to consent to treatment, you are obliged to act in their best
interests. Treatment which is futile or providing no overall benefit (taking into account all
factors, not just medical benefit) has no justification in law. Continuing to administer it would
be equivalent to continuing to treat a patient who has capacity and has declined the treatment;
in other words, it would be an unlawful assault. Therefore, treatment withdrawal under these
circumstances is not passive euthanasia; it is lawful, good practice.

Bear in mind Section 4(5) of the Mental Capacity Act which states that, when making a
decision about life-sustaining treatment in the best interests of a person who lacks capacity,
you must not be motivated by a desire to bring about that person’s death. If you were to
withdraw life-sustaining treatment with the intention of hastening a patient’s death (rather
than with the intention of respecting their autonomy or not continuing treatment that is not in
their overall best interests), this would amount to passive euthanasia which remains unlawful
in the UK.

Further reading

A short book in which two experts explain their arguments for (Prof Emily Jackson) and
against (Prof John Keown) the legalisation of euthanasia is my recommendation for anyone
wishing to explore the ethics of euthanasia further.

Emily Jackson & John Keown (2011) Debating Euthanasia, Oxford, Hart. ISBN: 978-1-
84946-178-8

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The doctrine of double-effect

Consent and compassion are not defences to murder. In the absence of an intention to kill,
however, there can be no liability for murder or voluntary manslaughter. Two murder trials
involving doctors illustrate this point:

Dr John Bodkin Adams practised as a GP in Eastbourne in the 1940s and 50s. Two of his
patients, both elderly widows died in somewhat suspicious circumstances. Dr Adams treated
Edith Morrell with heroin and morphine to ease ‘cerebral irritation’ after a stroke. She made
several alterations to her will, bequeathing gifts including money, cutlery and a Rolls Royce
to Dr Adams, before her death in 1949.

Seven years later, Dr Adams was treating Gertrude Hullett for depression following the death
of her husband. He prescribed large doses of barbiturates. She eventually died following an
apparent suicide attempt but the coroner suspected barbiturate poisoning. Mrs Hullett left Dr
Adams another Rolls Royce, which he sold six days later.

The Home Office pathologist examined over 300 death certificates issued by Dr Adams. 163
of these were thought to be suspicious, often because Adams had administered ‘special
injections’.

In 1957, Dr Adams was tried for the murder of Mrs Morrell. His defence team argued that he
had not intended to cause Mrs Morrell’s death, merely to alleviate her suffering, and that,
whilst his treatment plan was unorthodox, it was not reckless.

The judge in this case, Lord Patrick Devlin, incorporated the doctrine of double-effect, which
was originally developed in medieval Catholic theology, into his judgement. The doctrine can
be summarized as two moral claims:
 Performing a bad act in order to bring about good consequences is always wrong
 Performing a good act, which one foresees will lead to bad consequences, may
sometimes be right

Think back to the Preliminary reading for this course (Introduction to Clinical Ethics and
Law). If you disagree with Bentham’s view that the end justifies the means and agree with
Kant that you must do the right thing (such as telling the truth) regardless of the
consequences, then you must accept the two premises of the doctrine of double-effect. For
both premises to hold, then there must be a moral distinction between intending an outcome
and foreseeing an outcome. Killing is forbidden if it is intended. However, if the intention of
administering morphine and heroin was to only to alleviate suffering, despite Mrs Morrell’s
death being a foreseeable consequence of the action taken to alleviate suffering, then Dr
Adams lacked the intention to kill and could not be found guilty of murder. The jury found
him not guilty.

In the 1992 case of R v Cox, consultant rheumatologist Dr Nigel Cox was tried for the
attempted murder of his 70 year old patient Lillian Boyes. Mrs Boyes had extremely severe
rheumatoid arthritis and her pain could not be alleviated by analgesia. She was expected to
die within days or weeks, but could stand the pain no longer and asked Dr Cox to kill her.

16
Motivated by compassion, and in response to his patient’s request, Dr Cox first abruptly
discontinued the steroids he was prescribing, expecting this to trigger a fatal Addisonian
crisis. This did not happen. Next, he administered a very large dose of intravenous morphine,
expecting this to cause respiratory depression. Mrs Boyes survived this too. Finally, he
injected her with a lethal dose of potassium chloride and she died shortly afterwards. Dr Cox
was charged with attempted murder as, given her condition, Mrs Boyes may have actually
died from her disease and not the effects of the injection.

As in Dr Adam’s case, the question of Dr Cox’s guilt turned on his intentions. Although his
motivations were clearly nobler than those of Dr Adams, Dr Cox could not rely on the
doctrine of double effect. It seems likely that all three of his actions were undertaken with the
intention of ending Mrs Boyes’ life, not just her suffering. Nonetheless, discontinuing the
steroids would not have been unlawful if Mrs Boyes had made a competent refusal. Even
administering a dose of morphine that was foreseeably fatal would not have been unlawful if
it was actually done with the intention of relieving her pain, and not with the intention of
causing respiratory depression leading to death. However, the injection of potassium chloride,
which has no analgesic properties, was unquestionably administered with the intention to kill.
Dr Cox was found guilty of attempted murder. He was given a suspended sentence.

Is it reasonable to accept the doctrine of double-effect? It is part of a moral theory that

considers some acts as always wrong, if carried out intentionally, regardless of the
consequences. For consequentialist thinkers, this line of argument is morally wrong. Acts
should be judged by their foreseeable consequences. Dr Cox acted out of compassion, in
accordance with the wishes of his patients who saw death as the only means of ending her
suffering. In consequentialist moral theory, killing is not always wrong. It may be the right
thing to do if it maximises utility by ending the patient’s pain and providing her with the
satisfaction of having her wishes respected.

Whatever you think about the consequentialist argument against the doctrine of double-effect,
it is part of the law. In practice, this means that we should not avoid treating distressing
symptoms at the end of life with effective doses of analgesia and sedatives, if they are
required. In fact, research suggests that this is unlikely to hasten death. However, even if it
did, this would not amount to murder (or euthanasia) if the death was not intended.

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The acts/omissions distinction

Why is it that consent appears to legally justify withdrawal of life-sustaining treatment but not
active voluntary euthanasia? The outcome is the same and, arguably, it is kinder to kill
someone quickly than to allow than to let them die over a period of hours or days.

We have already considered the legal argument based on intention: in lawful treatment
withdrawal, the doctor’s intention is to comply with a legal duty to respect capacitous
refusals/only provide treatment that is in the best interests of a person who lacks capacity,
even if the patient’s death is a foreseeable consequence, this is analogous to the double-effect
argument used when potentially fatal doses of medication would be needed to control
symptoms.

Another argument you may come across is based upon the acts/omissions distinction, the
position that ‘in certain contexts, failure to perform an act, with certain foreseen bad
consequences of that failure, is morally less bad than to perform a different act which has the
identical foreseen bad consequences. It is worse to kill someone than to let them die’ (Jon
Glover ‘Causing death and saving lives’ (1977) Penguin: Harmondsworth pp 92-93).

Is it reasonable to make a moral distinction between acts and omissions? Consequentialist

thinkers like Glover argue that it is not. When faced with a problematic situation, we choose
to go down one path or another. We actively choose one path, and whether the path involves
action or inaction, the act of choosing is morally significant. Moreover, it’s not always
conceptually clear when something is an act and when it is an omission – switching off Ms
B’s ventilator being a prime example of this. Either we should stop allowing people to die
when we can prevent it, or we should start allowing active voluntary euthanasia.

Nonetheless, philosophers can and do make conceptually clear, if complex, distinctions

between the moral significance of acts and omissions. There is also a widespread moral
intuition that killing is not morally indistinguishable from failing to save. If there really is no
difference between the two, then we should all feel more guilt about the good acts that we fail
to do.

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Assisted suicide
There are schools of thought that argue that suicide, like killing others, is an act that is always
morally wrong. It is contrary to the idea of sanctity of life and incompatible with the Kantian
conception of autonomy (as it destroys an individual’s capacity for reason).

Others argue that sometimes suicide is a rational response to unbearable suffering, and
individuals should have the liberty to choose this path for themselves, provided that they
don’t harm others.

The legal position

In English law, suicide was decriminalised in 1961 and attempting suicide is not unlawful.
Effectively, people have the legal right or freedom to take their own lives. This was part of a
liberalisation trend in English law – an expression of the view that the State should not
interfere in the decisions of individuals that do not harm others. It is perhaps not so much an
endorsement of suicide as a pragmatic response to distress. It would seem callous to prosecute
someone following an unsuccessful suicide attempt: the compassionate response would be to
offer help in dealing with the problems that drove the person to take this step.

However, that offer of help cannot lawfully extend to assisting in a suicide attempt. Section
2(1) of the Suicide Act 1961 states:

‘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.’

It has been argued that this prohibition on assisted suicide discriminates against people who
are too disabled to take their own lives without assistance, depriving them of a freedom
enjoyed by able-bodied people. These issues were raised in the case brought by Diane Pretty,
who challenged the legality of the prohibition on assisted suicide, on the grounds that it is
incompatible with the Human Rights Act.

Diane argued that her right to life should be interpreted as a right to self-determination in
matters of life and death, including a right to end her own life as able-bodied people can. The
court was unwilling to extend its interpretation of the right to life that far.

She also argued that the prohibition on assisted suicide was condemning her to suffer the
torture of the final stages of motor-neurone disease. The court held that it was her illness, and
not the State’s prohibition on assisted suicide, that would cause her dreadful symptoms, and
her right to freedom from torture and inhuman or degrading treatment was not being violated.
The Suicide Act 1961 remained on the statute books.

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 Despite this, people from the UK continue to travel to Switzerland where assisted suicide is
lawful. They often do so with family or friends, who help them to attend the Dignitas centre
and obtain medication which they take to end their own lives. The bereaved relatives are
rarely prosecuted under the Suicide Act.

Debbie Purdy, a woman with multiple sclerosis, was concerned by the lack of clarity inherent
in this situation. She was concerned about the legal position her Cuban husband, Omar, might
find himself in if her illness progressed to a stage that she was unable to bear and he helped
her to travel to Dignitas. She argued that the lack of clarity amounted to a breach of her
human rights as she felt compelled to end her own life while she was physically able to do so
without assistance, rather than place Omar in a difficult position. The court accepted her
argument and, as a result, the Director of Public Prosecutions at the time of the case issued the
following guidance:

"The policy is now more focused on the motivation of the suspect

rather than the characteristics of the victim. The policy does not
change the law on assisted suicide. It does not open the door for
euthanasia. It does not override the will of Parliament. What it
does is to provide a clear framework for prosecutors to decide
which cases should proceed to court and which should not.
Assessing whether a case should go to court is not simply a
question of adding up the public interest factors for and against
prosecution and seeing which has the greater number. It is not a
tick-box exercise. Each case has to be considered on its own facts
and merits. As a result of the consultation exercise there have
been changes to the policy. But that does not mean prosecutions
are more or less likely. The policy has not been relaxed or
tightened but there has been a change of focus."

The sixteen public interest factors in favour of prosecution:

1. The victim was under 18 years of age.

2. The victim did not have the capacity (as defined by the Mental Capacity Act 2005) to reach
an informed decision to commit suicide.
3. The victim had not reached a voluntary, clear, settled and informed decision to commit
suicide.
4. The victim had not clearly and unequivocally communicated his or her decision to commit
suicide to the suspect.
5. The victim did not seek the encouragement or assistance of the suspect personally or on his or
her own initiative.
6. The suspect was not wholly motivated by compassion; for example, the suspect was
motivated by the prospect that he or she or a person closely connected to him or her stood to
gain in some way from the death of the victim.
7. The suspect pressured the victim to commit suicide.
8. The suspect did not take reasonable steps to ensure that any other person had not pressured
the victim to commit suicide.

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9. The suspect had a history of violence or abuse against the victim.
10. The victim was physically able to undertake the act that constituted the assistance himself or
herself.
11. The suspect was unknown to the victim and encouraged or assisted the victim to commit or
attempt to commit suicide by providing specific information via, for example, a website or
publication.
12. The suspect gave encouragement or assistance to more than one victim who were not known
to each other.
13. The suspect was paid by the victim or those close to the victim for his or her encouragement
or assistance.
14. The suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare
professional, a professional carer (whether for payment or not), or as a person in authority,
such as a prison officer, and the victim was in his or her care.
15. The suspect was aware that the victim intended to commit suicide in a public place where it
was reasonable to think that members of the public may be present.
16. The suspect was acting in his or her capacity as a person involved in the management or as an
employee (whether for payment or not) of an organisation or group, a purpose of which is to
provide a physical environment (whether for payment or not) in which to allow another to
commit suicide.

The six public interest factors against prosecution:

1. The victim had reached a voluntary, clear, settled and informed decision to commit suicide.
2. The suspect was wholly motivated by compassion.
3. The actions of the suspect, although sufficient to come within the definition of the crime,
were of only minor encouragement or assistance.
4. The suspect had sought to dissuade the victim from taking the course of action which resulted
in his or her suicide.
5. The actions of the suspect may be characterised as reluctant encouragement or assistance in
the face of a determined wish on the part of the victim to commit suicide.
6. The suspect reported the victim's suicide to the police and fully assisted them in their
enquiries into the circumstances of the suicide or the attempt and his or her part in providing
encouragement or assistance.

The Supreme Court has been asked to revisit the issue in subsequent cases, including the case
brought by Tony Nicklinson. To date, the Courts have expressed reluctance to make such a
significant change to the law, expressing a preference that the issue be debated in Parliament
by elected representatives.

A Private Members Bill to legalise assisted dying for adults with capacity who are expected to
die within the next six months was tabled for debate in the House of Lords by Lord Falconer
in June 2014. After much debate and amendment, the House of Lords passed the Bill.
However, there was not time for the Bill to be debated in the House of Commons before the
2015 General Election was called and Parliament was dissolved. The Bill could not, therefore
be enacted into law. After the election, the Bill was reintroduced, this time to the House of
Commons, as a Private Members Bill tabled by Rob Marris MP. The House of Commons
voted to reject the Bill in September 2015.

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In the same month, the California State Legislature gave its final approval to a very similar
bill to allow doctors to prescribe life-ending drugs to terminally ill patients. The States of
Oregon, Washington, Montana and Vermont had previously enacted similar laws.

You may be asked about this by patients and you’ll need to think about how to deal with this
as you cannot lawfully provide them with information but should always handle the situation
with compassion and sensitivity.

Ethical arguments

A variety of arguments are put forward on both sides of the debate. Whatever your personal
opinion, you should familiarise yourself with both sides and think carefully about which
arguments are based on sound principles, structurally valid and reasonably convincing to a
dispassionate audience. For example:

Equality: Suicide is no longer illegal. There is no justification for preventing people from
assisting those who need help to do something that they are at otherwise at liberty to do.

Consequentialism: People with life-limiting conditions can lawfully intentionally end their
own lives by refusing life-sustaining treatment. Doctors must comply with such refusals by
taking down drips, removing feeding tubes, weaning off ventilators etc. These ‘omissions’
amount to active assistance to die. More direct active assistance to hasten the inevitable
consequence should therefore also be lawful. This argument applies to assisted dying, rather
than all forms of assisted suicide

Respect for patient autonomy should include respecting a rational choice to end one’s
own life. We should maximise opportunities for disabled people to exercise autonomy by
enabling them access to the means to enact their autonomous decisions.

Beneficence: Even with modern pain control and excellent palliative care, the suffering
associated with the later stages of some diseases can be unbearable. Although ending a Iife is
usually doing harm, assisting suicide in some limited circumstances will reduce unbearable
suffering, so is actually doing good.

It is unnecessary: Good holistic palliative care relieves the suffering associated with dying.
People may experience a desire for death at some point during the end stage of their illness
but this often passes. Our efforts should be devoted to improving palliative care, to further
improve its scope for reducing suffering.

It puts vulnerable people at risk: There may be coercion on an ill, elderly person to ask
for assistance to end their own lives. Even in the absence of coercion, people may feel obliged
to pursue this course of action in order to avoid burdening their families. There are differing
views as to whether or not such decisions can ever be truly autonomous.

Slippery slope objections: The logical version of the SSO is that either intentionally ending
life is wrong or it is not. Once we are logically committed to assisting people with capacity to
end their own lives, we are also logically committed to extending the limits of permissible
action to other forms of intentionally ending human life. The empirical form of the SSO is
that, as a matter of fact, once the constraints on ending life are loosened, undesirable practices
will result.

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It is contrary to the aims of medicine: The aims of medicine include the promotion of
life and health. It would damage trust in the medical profession if we became involved in
actively ending life.

Care after death

GMC guidance states that:

‘Your professional responsibility does not come to an end when a patient dies. For the
patient’s family and others close to them, their memories of the death, and of the person who
has died, may be affected by the way in which you behave at this very difficult time.

The wishes and needs of the bereaved

Death and bereavement affect different people in different ways, and an individual’s response
will be influenced by factors such as their beliefs, culture, religion and values. You must
show respect for and respond sensitively to the wishes and needs of the bereaved, taking into
account what you know of the patient’s wishes about what should happen after their death,
including their views about sharing information. You should be prepared to offer support and
assistance to the bereaved, for example, by explaining where they can get information about,
and help with, the administrative practicalities following a death; or by involving other
members of the team, such as nursing, chaplaincy or bereavement care staff.

Certifications, post-mortems and referral to a coroner or procurator fiscal

You must be professional and compassionate when confirming and pronouncing death and
must follow the law, and statutory codes of practice, governing completion of death and
cremation certificates. If it is your responsibility to sign a death or cremation certificate, you
should do so without unnecessary delay. If there is any information on the death certificate
that those close to the patient may not know about, may not understand or may find
distressing, you should explain it to them sensitively and answer their questions, taking
account of the patient’s wishes if they are known.

You must comply with the legal requirements where you work for reporting deaths to a
coroner (England, Wales and Northern Ireland) or procurator fiscal (Scotland). You should be
prepared to answer questions from those close to the patient about reporting procedures and
post-mortems, or to suggest other sources of information and advice.

You must treat the patient’s body with dignity and respect. You should make sure, wherever
possible, that the body is handled in line with their personal religious or other beliefs’.

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Appendix 1. Legal requirements
The BMA has issued comprehensive guidance on doctors’ legal obligations concerning the
completion of death and cremation certificates, and reporting deaths to the coroner. You will
also have the opportunity to attend more teaching on the topic, as part of the Palliative Care
course. A summary is reproduced below, for reference, and you can find the full guidance
here:

The law requires a doctor to notify the cause of death of any patient whom he or she has
attended during that patient’s last illness to the Registrar of Births and Deaths. The doctor is
required to notify the cause of death as a certificate, on a form prescribed, stating to the best
of his or her knowledge and belief, the cause of death.

It should be noted that the strict interpretation of the law is that the doctor shall notify the
cause of death, not the fact. Thus, a doctor does not certify that death has occurred, only what
in his or her opinion was the cause, assuming that death has taken place.

Arising out of this interpretation there is no obligation on the doctor even to see, let alone
examine the body before issuing the certificate. The Broderick report recommended that a
doctor should be required to inspect the body of a deceased person before issuing the
certificate but this recommendation has never been implemented. Thus, there is no
requirement in English law for a general practitioner or any other registered medical
practitioner to see or examine the body of a person who is said to be dead.

General practitioners as a body would not, and as individuals should not, seek to use this
quirk of English law to avoid attending upon an apparently deceased patient for whom the GP
is responsible. However, the fact that there is no legal obligation upon a GP to attend the
deceased should be remembered and, if necessary, quoted when organisations such as the
emergency services ask general practitioners, either in or out of hours, to attend a the
deceased as a matter of urgency. If a patient is declared to be dead by a relative, a member of
staff in a nursing home, ambulance personnel or the police, GPs would be acting correctly by
prioritising the needs of their living patients.

Issuing cremation forms

Cremation Form 4 (formerly cremation form B) is usually completed by the ordinary medical
attendant in charge of the deceased at the time of death. This is often the GP, or the doctor in
charge of care during a hospital stay of 24 hours or more. It is important that all parts of form
4 are completed accurately to ensure that the body is released in a timely fashion and that
there are no queries about the death following the cremation.

Form 5 (formerly cremation form C) is required to independently corroborate the medical

circumstances of a death as stated by a medical practitioner in Form 4. In order to be eligible
to complete cremation Form 5, you must be a “registered medical practitioner of not less than
five years' standing.” The medical practitioner who completes the confirmatory medical
certificate should not be a relative of the deceased, or a partner of the doctor who has given
the cremation certificate in Form 4.

24
The requirement to have two independent medical practitioners complete forms 4 and 5 is to
ensure that the medical circumstances of the death is corroborated and removes the likelihood
of questions about wrong doing by the medical practitioner and their involvement in the
death’.

Appendix 2. The Coronial System

The following information is taken from the Ministry of Justice’s guidance, which you can
download from the ethics & law page of MedEd. You will also have the opportunity to attend
more teaching on the topic, as part of the Palliative Care course.

What is a coroner?
A coroner is an independent judicial office holder, appointed by a local authority (council)
within the coroner area. Some coroners cover more than one local authority. Coroners are
usually lawyers but sometimes doctors. Coroners work within a framework of law passed by
Parliament. The Chief Coroner heads the coroner service and gives guidance on standards and
practice.

What do coroners do?

Coroners investigate deaths that have been reported to them. When a death is reported to a
coroner, he or she:
• firstly establishes whether an investigation is required;
• if yes, investigates to establish the identity of the person who has died; how, when, and
where they died; and any information required to register the death; and
• uses information discovered during the investigation to assist in the
prevention of other deaths where possible.

What is a coroner’s investigation?

The coroner’s investigation is the process by which the coroner establishes
who has died, and how, when, and where they died. The coroner may decide,
as part of the investigation, to hold an inquest.

When is a death reported to a coroner?

Registrars of births and deaths, doctors or the police must report deaths to a coroner in certain
circumstances. These include where it appears that:
• no doctor saw the deceased during his or her last illness;
• although a doctor attended the deceased during the last illness, the doctor is not able or
available, for any reason, to certify the death;
• the cause of death is unknown;
• the death occurred during an operation or before recovery from the effects of an anaesthetic;
• the death occurred at work or was due to industrial disease or poisoning; • the death was
sudden and unexplained;
• the death was unnatural;
• the death was due to violence or neglect;
• the death was in other suspicious circumstances; or
• the death occurred in prison, police custody or another type of state detention.

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What is a post-mortem examination?
A post-mortem examination is a medical examination of a body after death to find out the
cause of death. A coroner’s post-mortem examination is independent and is carried out by a
suitable medical practitioner such as a pathologist of the coroner’s choice.
The coroner decides whether or not a post-mortem examination is needed and what type of
examination is most appropriate. By law, the coroner is not required to obtain the consent of
the family of the deceased person, but he or she will give the family the reason for his or her
decision.
Where possible, coroners will take account of your religious and cultural needs whilst acting
in accordance with the law when ordering a post-mortem examination and the type of
examination to be performed.

The post-mortem examination report

After the post-mortem examination the pathologist will send a report to the coroner. The
report will give details of the examination, of any tissues and organs retained, and any tests,
such as for drugs and blood alcohol level, which have been carried out to help in finding out
the cause of death.
Sometimes the pathologist’s report may not be available for several weeks because of the
complexity of the examination (especially if there has been a forensic examination, organs
need very specialist examination, or the examination has been carried out on an infant).

What happens after the post-mortem examination?

A coroner may decide the investigation is either unnecessary or complete if the post-mortem
examination has shown the cause of death. The coroner will then release the body so that the
funeral can take place.
Sometimes a coroner may decide that further investigation is needed into the death. The
coroner will still usually release the body at this point so the funeral can take place if he or
she no longer needs the body for the investigation. However occasionally this is not possible.

By law a coroner must continue an investigation and hold an inquest if:

• the cause of death remains unknown after the post-mortem examination and any subsequent
tests;
• there is cause for the coroner to suspect that the deceased died a violent or unnatural death;
or
• the death occurred in custody or state detention.

What is an inquest?
If it was not possible to find out the cause of death from the post-mortem examination, or the
death is found to be unnatural (or occurred in state detention) or the coroner thinks there is a
good reason to continue the investigation, a coroner has to hold an inquest to be able to finish
his or her investigation. (The exception is if someone is to be prosecuted for causing the
death)
An inquest is a public court hearing held by the coroner in order to establish who died and
how, when and where the death occurred. The inquest may be held with or without a jury,
depending on the circumstances of the death. Some coroners have their own courts but some
use other types of courts or public buildings.
An inquest is different from other types of court hearing because there is no prosecution or
defence. The purpose of the inquest is to discover the facts of the death. This means that the
coroner (or jury) cannot find a person or organisation criminally responsible for the death.
However, if evidence is found that suggests someone may be to blame for the death the
coroner can pass all the evidence gathered to the police or Crown Prosecution Service.

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Who can attend an inquest?
Inquest hearings are almost always held in public. Some bereaved people prefer not to attend,
as the details of the death may be distressing, but they are entitled to be there. Witnesses (for
example a doctor, police officer or eyewitness) may be asked to attend to give evidence.
Members of the public and media are normally allowed to attend the inquest.

Will I need to speak at the inquest?

You may be asked to give evidence. This might be to give information about the deceased or
the death. You must give evidence under oath or by affirming that you will tell the truth.

Who decides which witnesses to call?

The coroner decides who should be called to give evidence as a witness and the order in
which they give evidence

Must a witness attend the inquest?

If the witness lives in England or Wales they must attend if they are asked to. In many cases
the evidence of a witness may be vital in establishing the facts of the death. A witness may
either be asked to attend the inquest voluntarily or receive a formal summons to do so. It is an
offence not to attend and the coroner can impose a fine or prison sentence. If the witness lives
abroad he or she does not have to attend to give evidence. However, the coroner may decide
to accept written evidence from the witness.

Who can ask witnesses questions?

The coroner will question a witness first. After that, the family (and other ‘interested
persons’) may ask the witness relevant questions, or their representative can ask questions on
their behalf, if the coroner agrees. It is the coroner who decides whether a question is relevant
to the inquest. The coroner will also warn a witness that he or she does not have to answer
any question which might lead him or her to incriminate him or herself.

Will the inquest be reported by the press?

Inquests are almost always held in open court, where the public can attend.
Journalists may also attend and report what has taken place.

Inquest conclusions – determinations and findings

The coroner (or jury where there is one) comes to a conclusion at the end of an inquest. This
includes the legal ‘determination’, stating formally who died, and where, when and how they
died. The coroner or jury may also make ‘findings’ to allow the death to be registered.

When recording the cause of death the coroner or jury may use one of the following terms:
accident or misadventure; alcohol/drug related; industrial disease; lawful/unlawful killing;
natural causes; open (used when there is insufficient evidence for any other outcome); road
traffic collision; stillbirth; suicide. Alternatively, or in addition, the coroner or jury may make
a brief ‘narrative’ conclusion setting out the facts surrounding the death in more detail and
explaining the reasons for the decision.

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