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

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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)

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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.

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Kristin Savell, University of Sydney