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To obey love or the law?

Chris Docker

Mr David Hainsworth appeared at court in Edinburgh, Friday 6th June, charged with the attempted murder of his 82-year old cancer-ridden father. He later walked free from the court with a two-year probation order after the judge heard heart-rending letters of forgiveness from his brother, mother and uncle. Mercy killing has again been viewed leniently by the courts in Scotland.

Mr Hainsworth pleaded guilty to a reduced charge of assaulting his father with intent to smother him with a pillow. He was pulled off by relatives; then he ran from the house and was later found to have mutilated himself. His father, who had been diagnosed in 1985, died a few days later while David was sitting in a police cell.

David, now aged 54, is a maths graduate and former computer programmer. Described as a loving and caring son, he had moved back to the Scottish border town of Galashiels over ten years ago - to be closer to his father - and has been taking work as a gardener.

Hearing how he had been tormented by terrible guilt after the incident, temporary judge John Wheatley QC advised him to “seek medical advice.” His defence advocate, Alan Nicol, told the court how the burden of caring for the terminally ill man had been borne almost entirely by David and his mother, Irene. Judge Wheatley described the incident as an unusual and distressing situation.

Enormous emotional pressures are forced onto caring, desperate members of our society when they face a euthanasia request from a family member. This case demonstrates the perhaps irresolvable dilemma between devotion to a loved one and respect for the law. When the law is unworkable and fails to allow for exceptional cases in today’s world it needs to be brought up to date.

If a defendant’s beneficence and respect for the dying person’s autonomy are now influencing courts in assisted suicide cases, we need to take the unfair pressure off relatives and provide emotional and legal safeguards. A person under the intense emotional strain of a dying request from a loved one is poorly placed to make a decision to help, or to weigh the consequences of breaking the law out of love. The person who has to decide whether to help may be severely traumatised for a long time after the event, whichever way their conscience causes them to act.

Individuals should not be encouraged into suicide or euthanasia but, especially in such exceptional circumstances, individual choices involving such matters are morally supportable, and statute needs to be updated to bring it into line with legal reasoning and public morality.

This case follows not long on the heels of Paul Brady’s Scottish High Court appearance for accepting the euthanasia request of his brother, James. Lord Macfadyen had been very careful to emphasise the illegality of Paul Brady’s actions, and said it was only the “exceptional” circumstances of the case which had deterred him from imposing a custodial sentence. In merely admonishing Brady, the judge made reference to “a combination of powerful mitigating circumstances” which had influenced his decision, including the fact that Brady had acted out of “compassion rather than from any malicious motive or any desire to make matters easier” for himself. He also referred to the fact that Paul’s acts were carried out “at his [James’s] own earnest, and plainly heartfelt, request.”

The decision in the Brady case provoked something of a mixed response from advocates of reform. While Lord Macfadyen’s decision not to imprison Paul Brady has been widely welcomed, there is also dismay that a case such as this should have to be resolved by recourse to the criminal courts, and the same may be said of the Hainsworth case. It is the view of many supporters of a “right-to-die” that these are classic examples of the kind in which medical assistance should be available to an individual who wishes to exercise control over the timing and circumstances of his or her own death.


From a legal perspective, one of the more interesting aspects of the Hainsworth case, lies in the fact that David Hainsworth’s plea of guilty to the charge of assault with intent to smother was accepted by the prosecution. Despite the apparent trend towards prosecuting cases of voluntary euthanasia as culpable homicide rather than murder (as we have seen, HMA v Brady, reported in the January 1996 Newsletter), it was believed by many that an unsuccessful attempt to help someone wishing to die would invariably result in a charge of attempted murder. Unlike murder, attempted murder does not carry a mandatory sentence; if the plea of guilty to the lesser charge had not been accepted, Hainsworth would not necessarily have been given a life sentence. It does seem, though, that among prosecutors as well as the judiciary, an increasing reluctance can be detected to characterise cases such as this as murder, attempted or actual.

Colin Gavaghan (VESS Researcher,and graduate in Medical Law)

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