Publication Date01 January 1999
Date01 January 1999
Margaret F.A. Otlowski, Voluntary Euthanasia and the Common Law, Oxford:
Clarendon Press, 1997, xxxiii + 564 pp, hb £70.00.
Support for euthanasia is in principle increasing, and the movement for legalisation
of the practice is gaining momentum. Margaret Otlowski’s Voluntary Euthanasia
and the Common Law is a timely and significant contribution to this troublesome
Otlowski selects five countries for comparative legal analysis: Australia, New
Zealand, Canada, the United States and the United Kingdom. Her main position,
made explicit from the outset, is that reform of the criminal law to accommodate
the practice of medically administered active voluntary euthanasia is appropriate –
indeed necessary – in order to protect the interests of doctors and patients and to
promote the principles of autonomy and self-determination. Whether or not one
accepts her argument in its entirety, this detailed study is essential reading for
anyone with an interest in the subject.
The book is divided into eight chapters. Chapters one and two present a detailed
picture of the current legal situation with regard to euthanasia and assisted suicide,
providing an essential backdrop for the author’s later argument in favour of legal
reform. In the first chapter, she challenges the ‘problematic and unsatisfactory’ legal
distinction drawn between active and passive euthanasia – a distinction which has
had a profound influence on current medical practice. She directs our attention to
the criminal law’s incoherence: a doctor who administers active euthanasia at a
patient’s request faces criminal liability for murder in all common law jurisdictions,
whereas a doctor who, at the request of a patient, withholds or withdraws treatment
with the same intention of causing the patient’s death, will not be held criminally
responsible. Thus, even though ‘the object and end result of active and passive
euthanasia are the same, the legal consequences are vastly different.’
In chapter two the focus shifts to assisted suicide, a statutory criminal offence in
the jurisdictions under consideration (with the recent exception of the American
state of Oregon). Otlowski criticises the clear line drawn consistently by the courts
between ‘suicide’ and ‘treatment refusal’ as one which lacks ‘substance’ and leads
to ‘an undesirable distortion of legal principles’ in order to avoid what, in many
cases, are obvious conclusions. Even if persuaded by Otlowski’s reasoning, many
readers will find this aspect of her analysis contentious, not least because of the
potential implications of discarding this distinction. There are certainly clear policy
reasons for maintaining it.
In chapter three, Otlowski presents and analyses ‘incontrovertible evidence’
which demonstrates that euthanasia is being administered illegally by physicians
with a certain amount of frequency, even though such physicians are rarely
prosecuted. This divergence between theory and practice, she maintains, highlights
the ‘inadequacies’ of the current legal situation and demonstrates the need for
reform of the law.
Otlowski also challenges the widely-accepted doctrine of double effect. She
argues that it is hypocritical for the law to condone the administration of life-
shortening palliative drugs in order to relieve pain yet strictly prohibit the practice
The Modern Law Review Limited 1999 (MLR 62:1, January). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 151

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