A Jurisprudence of Ambivalence: Three Legal Fictions Concerning Death and Dying

Kristin Savell

Abstract

Through a critical reading of the English decision Ms B v An NHS Hospital Trust, and the more recent Australian decision, Brightwater Care Group (Inc) v Rossiter, this article examines three fictions that have been crucial in protecting the choice to die in the context of treatment withdrawal whilst maintaining a prohibition on assisting individuals who wish to die. These are: (i) a competent patient can refuse medical treatment for any or no reason, even if it means they will die; (ii) the doctor’s removal of life-supporting technology does not entail responsibility for the resulting death; and (iii) such deaths are natural deaths. The argument developed here is that when patients and doctors disagree about whether and how death should occur in the treatment withdrawal context, the conceptual space created by law to distance these deaths from culpable deaths is threatened. It is in these moments of dispute that the fictions are challenged, their fragility exposed, and law’s underlying ambivalence about the choice to die revealed.

Keywords

Treatment withdrawal; Law and death; choice to die

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