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

Kristin Savell

doi:10.5130/csr.v17i1.1973

Cultural Studies Review 17.1 March 2011 The Death Scene: Perspectives on Mortality

PDF

DOI: https://doi.org/10.5130/csr.v17i1.1973

Keywords:

Treatment withdrawal, Law and death, choice to die

Kristin Savell

University of Sydney

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.

Issue

Vol. 17 No. 1 (2011): The Death Scene: Perspectives on Mortality

Section

The Death Scene (Peer Reviewed)

This work is licensed under a Creative Commons Attribution 4.0 International License.

Copyright Notice

Authors who publish with this journal agree to the following terms:

a) Authors retain copyright and grant the journal right of first publication with the work simultaneously licensed undera Creative Commons Attribution License that allows others to share and adapt the work with an acknowledgement of the work's authorship and initial publication in this journal.

b) Authors are able to enter into separate, additional contractual arrangements for the non-exclusive distribution of the journal's published version of the work (e.g., post it to an institutional repository or publish it in a book), with an acknowledgement of its initial publication in this journal.

c) Authors are permitted and encouraged to post their work online (e.g., in institutional repositories or on their website) prior to and during the submission process, as it can lead to productive exchanges, as well as earlier and greater citation of published work (See The Open Access Citation Advantage Service). Where authors include such a work in an institutional repository or on their website (ie. a copy of a work which has been published in a UTS ePRESS journal, or a pre-print or post-print version of that work), we request that they include a statement that acknowledges the UTS ePRESS publication including the name of the journal, the volume number and a web-link to the journal item.

d) Authors should be aware that the Creative Commons Attribution (CC-BY) License permits readers to share (copy and redistribute the work in any medium or format) and adapt (remix, transform, and build upon the work) for any purpose, even commercially, provided they also give appropriate credit to the work, provide a link to the license, and indicate if changes were made. They may do these things in any reasonable manner, but not in any way that suggests you or your publisher endorses their use.

Author Biography

Kristin Savell, University of Sydney

Kristin Savell is a senior lecturer in the Faculty of Law and Deputy Director of the Centre for Health Governance, Ethics and Law at the University of Sydney. She teaches and researches in the fields of criminal law, health law and legal/bioethical theories. She is currently working on a range of projects, including an ARC funded project on the legal meaning of serious disability in prenatal and neonatal decision-making, the legal and medical regulation of non-normative embodiment and the social, clinical and legal constructions of death and dying.

Article Sidebar

Main Article Content

Abstract

Article Details

Kristin Savell, University of Sydney