The Law Lords

As we saw while reviewing the Dutch experience, the courts in at least one jurisdiction have changed the law to permit VAE and PAS. However, such judicial law-making is rare. In many countries judges would regard any relaxation of the prohibition as a matter properly to be left to elected legislatures, not only because the criminal prohibition is so long-established, but also because repeal is thought to involve profound issues of principle and complex issues of social policy better suited to legislative than judicial determination.

The English courts provide a good illustration of judicial reluctance to relax the law to permit doctors to administer or hand lethal injections to patients. The courts undoubtedly have the power to do so for, as an eminent judge once wrote, the law is what the judges say it is. It would, for example, be possible for the English courts to follow their Dutch counterparts and extend the defence of necessity. It is, however, unlikely that they would do so, not least because the defence of necessity in English law has traditionally been used to justify the conduct of those who save life, not take it. In the Bland case, Lord Goff, having noted that ‘euthanasia’ (by which he clearly meant active medical killing) was illegal at common law, observed: