The law of England and Wales on assisted suicide is in urgent need of reform. Critically evaluate this statement, including consideration of relevant case law.
by
kaytie (student)
“The law of England and Wales on assisted suicide is in urgent need of reform.” Critically evaluate this statement, including consideration of relevant case law.
Thomas More wrote of the ideal society ‘if any have torturing, lingering pain, without hope of recovery or ease…they should no longer cherish a rooted disease, but choose to die since they cannot live but in great misery; being persuaded, if they thus deliver themselves from torture, or allow others to do it.’[1] Such an ideal is far from a reality five hundred years after its inception; some headway was made with the legalisation of suicide in the Suicide Act 1961, however assisted suicide still remains illegal under the same statute, which made it a criminal offence to "aid, abet, counsel or procure the suicide of another" under s2(1).[2] This essay will examine how the stance on assisted suicide has developed over the past fifty years, focusing on reforms made through jurisprudence, reform made in Parliament, the wider debate underpinning the issue and finally how it has been dealt with in other jurisdictions. Throughout assisted suicide is defined as the act of deliberately assisting another person in killing themselves but they perform the act that causes death. It is differentiated from euthanasia (which will also be discussed) as the latter involves the assistant committing the act that causes death.
Reform Through Jurisprudence
The first chip in the absolute nature of the law came from the case of Airedale NHS Trust v Bland[3], in which Bland was in a persistent vegetative state and kept alive through the use of feeding tubes. The House of Lords decided unanimously that it was lawful for his doctors to withdraw this treatment as it was in the best interests of the patient, despite Lord Goff noting that "So to act is to cross the Rubicon which runs between on the one hand the care of the living patient and on the other hand euthanasia - actively causing his death to avoid or to end his suffering. Euthanasia is not lawful at common law”.[4] A clear distinction was made between an act and an omission, with withdrawing treatment covered under the latter as this can only form the actus reus of an offence where the law imposes a duty of care, which was discharged “there is no longer any duty upon the doctors to continue with this form of medical treatment or care in his case, and it follows that it cannot be unlawful to discontinue it.”[5] Although the case provided a precedent for passive euthanasia (whereby death is the result of failing to provide medical treatment or withdrawing it) by recognising the Doctrine of Double Effect it has faced considerable criticism on ethical grounds for the moral fallacy it propagated in drawing such a distant line between acts and omissions and the potential to create a slippery slope,[6] beginning a trend whereby the sanctity of life is no longer considered absolute and leaving the stability and nature of the law “morally and intellectually misshapen”.[7]
Whilst Bland may have provided a catalyst to bring the subject of assisted suicide to the forefront of academic and public discussion it was the introduction of the Human Rights Act 1998[8] that facilitated a series of legal challenges, as this incorporated the European Convention on Human Rights[9] into the UK system and allowed for remedies to address a breach to be available in national courts. In 2001 Dianne Pretty challenged the legality of the law surrounding assisted suicide with regard to its compatibility with the ECHR, on the basis five of her convention rights had been breached.[10] It was decided in R (on the application of Pretty) v Director of Public Prosecutions (2001) that her rights had not been breached, however there was considerable debate with regard to Article 8, which states that ‘everyone has the right to respect for his private and family life, his home and his correspondence’.[11] Lord Bingham dismissed the idea that this article had been engaged at all, however on appeal to the European Court of Human Rights this was corrected, “the Court considers that it is under article 8 that notions of the quality of life take on significance”.[12]
Despite the failure of the previous attempt the idea of a fundamental incompatibility between the Suicide Act and the ECHR was to form the basis of another more successful challenge, this time seeking clarification of the prosecution process. On appeal to the House of Lords, the case of R (Purdy) v DPP [2009] established that the law on assisted suicide impeded Article 8, as the discretion to prosecute held by the Director of Public Prosecutions undermined the requirement for the law to be precise and accessible so that a citizen could “foresee the consequences of his action so that he can regulate his conduct without breaking the law”.[13] This marks a clear deviation from the reasoning in the Pretty case, an inevitability due to the requirement for a UK court to take into account judgements from the ECtHR, and brought about the DPP publishing guidelines as to when prosecution would occur. On the surface this appears to be the first major reform to occur within this area of law, providing what some commenters believed to be the starting point on the road to legalising assisted suicide.[14]
This is questionable assertion however; the document itself, Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide[15], makes no substantive changes to the law and its very existence permanently altered the manner in which the DPP deal with such cases, trading a system whose discretion allowed for a very low prosecution rate for one of vague transparency. The latter point is particularly pertinent when taking into account that transparency was the impetus for the Purdy case and as it stands this does not appear to have been achieved, with the policy stating that its criteria ...
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This is questionable assertion however; the document itself, Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide[15], makes no substantive changes to the law and its very existence permanently altered the manner in which the DPP deal with such cases, trading a system whose discretion allowed for a very low prosecution rate for one of vague transparency. The latter point is particularly pertinent when taking into account that transparency was the impetus for the Purdy case and as it stands this does not appear to have been achieved, with the policy stating that its criteria for prosecution is not absolute, ‘these lists of public interest factors are not exhaustive’[16] and also that some criteria carried more weight than others, ’it is quite possible that one factor alone may outweigh a number of other factors which tend in the opposite direction’.[17]
Stipulations such as these obscure the mechanisms of the law and make it difficult for a person to achieve an informed decision as to whether their actions would be prosecuted. The publication of guidelines was also criticised extensively by those not in favour of assisted suicide, as it was possible to make comparisons with the Netherlands experience, where the Royal Dutch Society of Medicine introduced guidelines for euthanasia that were distorted over time to become more lenient.[18] It is a far from perfect analogy however, as the Dutch example dealt with when legal actions were permitted, whereas the DPP guidelines focus purely on when an illegal act will be prosecuted.
The final development from case law came in 2014: Nicklinson and Lamb both suffered from locked in syndrome and brought cases on familiar grounds, challenging the legitimacy of the law under Article 8 of the ECHR and appealing until their case reached the Supreme Court.[19] Although their appeal was dismissed it does appear to have provided a catalyst for opening debate around the key problem with reform through jurisprudence,[20] summarised best by Lord Hope in Purdy “It is no part of our function to change the law in order to decriminalise assisted suicide. If changes are to be made, as to which I express no opinion, this must be a matter for Parliament.”[21] Even as it stands the case of Nicklinson and Lamb is arguably pivotal for reform, perhaps more so than if it had achieved a declaration of incompatibility which Parliament is within its right to ignore, as it has lead Lord Neuberger to explicitly challenge Parliament, ‘bearing in mind the predicament of the Applicants, and the attention the matter has been given inside and outside Parliament over the past twelve years, one would expect to see the issue whether there should be any and if so what legislation covering those in the situation of Applicants explicitly debated in the near future.’[22] It may not have been his intent to do so but the undercurrent of an ultimatum his statement carries highlights the currently untenable position the court is in, unable to constitutionally address an issue whilst continually asked to do so. It is evidently not an issue for the courts to decide, and as the limit of legislative interpretation appears to have been reached the only remaining place for reform is Parliament.
Reform Through Parliament
Whilst reform of assisted suicide has occurred through case law it has at best established an unofficially acknowledged status quo, wherein it remains illegal but rarely prosecuted when driven by compassion and undertaken by someone other than a medical profession. This is not a satisfactory position for the law to remain in, it creates a system in which citizens have different rights dependant on personal circumstances. There have been several attempts to change the law through the parliamentary process, beginning with the Assisted Dying For The Terminally Ill Bill in 2004, which was introduced as a private members bill by Lord Joffe.[23] The bill failed to make it to a second reading in 2006, once again shelving the issue before any constructive debate could take place.
The topic was on the agenda for the Coroners and Justice Act 2009,[24] where two provisions were debated before the act became law. One dealt specifically with the act of assisting a person in travelling to a country where assisted suicide is legal, to remove the illegality of this offence. This failed to become part of the final Act, with some members critical that Parliament had not taken the opportunity to debate such a pertinent issue.[25] Lord Falconer also proposed this amendment whilst the Bill was being debated in the House of Lords, developing safeguards to prevent illegitimate use that extended beyond the fear of prosecution that currently governs such decisions. His focus appears to have been primarily on the legal aspect of the argument, ‘the law is being marginalised. The law is not being applied by the Director of Public Prosecutions because it plainly no longer fits the current situation’[26] and when faced with an emotive opposition put forward by Baroness Campbell ‘Is this really the future that we wish to offer those who become terminally ill? Those of us who know what it is to live with a terminal condition are fearful that the tide has already turned against us’[27] failed to gain the necessary votes for it to go any further. It is this distinction between the supporters and the detractors of assisted suicide reform that may explain why, despite recognition that the current law is not sufficient, it is a topic that had not gained much ground, as regardless of how sound the premise of the argument or thoroughness of suggested Bills it is difficult to overlook the personal and inclusive rhetoric put forward by the opposition, particularly when much of it is based on principle rather than form, ’there could be no Bill drafted which could overcome my objections to the principle of allowing assisted suicide.’ [28]
In spite of this Lord Falconer continued to promote the issue, chairing the Commission On Assisted Dying, which contained a comprehensive review of current law and extended the focus into who should qualify for assisted suicide and the precautions required to ensure vulnerable people were not pressured into such.[29] All commissioners but one concluded that current law was inadequate and incoherent, urging Parliament to develop new guidelines to reflect the current state of affairs. The Assisted Dying Bill[30], derived from the finding of the commission, was subsequently introduced in 2014, with the aim of enabling terminal adults (with a prognosis of less than six months) with the required mental capacity to receive assistance in ending their lives at their request. The Bill contains extensive provisions to address common criticisms: two doctors must be satisfied the person is terminally ill to try and reduce the likeliness of misdiagnoses or inaccurate prognosis, and that they have the required mental capacity and a voluntary, settled intention to go through with the process. A key difference from previous iterations is that although a doctor prescribes the drugs it is the patient that administers the medication. As of writing the Bill is still making its way through the House of Lords, and is expected to undergo a third reading in September 2015. This is the furthest such a Bill has ever gone, however there are still a considerable amount of stages for it to go through before it could receive royal assent and become law.
Stakeholders
The reactions to the Bill from interested parties provide a broad cross section of the arguments surrounding the debate, although they do little to advance either side as they are bound within the context of the organisation in question. Not Dead Yet UK, who are opposed to the legalising assisted suicide, highlighted the risk that vulnerable people may feel under pressure to end their lives, and believe the Bill propagates the idea that disabled peoples lives are not given equal weight, concluding ‘disabled people want help to live – not to die.’[31] They appear to conflate disabled with terminally ill, and whilst the two are not mutually exclusive it is only the latter the Bill would apply to, which does undermine their argument somewhat. Living and Dying Well, a neutral policy research organisation, were skeptical of the Bill’s underdeveloped safeguards as they did not think it was prudent for specific codes of practice (which were not included) to be developed after the Bill had become law. They were also critical of the responsibility the Bill would place on medical professionals, who would in essence become both judge and jury, responsible for assessing patients and providing the necessary drugs.[32] Dignity in Dying were of the opinion that the Bill would not lead to an increase in deaths (which is debatable as it would remove the barrier of illegality that may have been acting as a deterrent) and that it would provide peace of mind to those suffering terminal illnesses that the option to end their life was as available to them.[33] The latter point is interesting as an argument against the idea that the legislation is unwarranted as it provides rights that only oblige a minority; whilst the right to end your life is not a concrete one the ability to do so is within the capability of the rest of the population, and legislating to allow those that cannot do so is merely putting them on equal footing.
The opinion of medical bodies is possibly the most important however, given the intrinsic role that their members would undertake if assisted suicide were legalised. The British Medical Association as an organisation is currently opposed to changing the law, particularly in any manner that would rely on the participation of their members. They did remove the commitment to preserving human life at any expense as an objective in 2012 however[34], which could be seen as a step towards acceptance, as it removes an irreconcilable ideal from the context of the debate. At odds with this is the opinion of the British Medical Journal (the academic journal of the BMA) which published support for the Assisted Dying Bill,[35] an unexpected stance that suggests that there is not total accord within the association about the issue.
International Comparisons
It is useful to consider how the matter has been addressed in other countries, as this can provide insight into how theoretical arguments play out in reality. The first example is that of the US state of Oregon, which enacted assisted suicide in 1997,[36] as that legislation was used as the basis for the current Assisted Dying Bill. The act allows terminally ill people that live in the state to be prescribed lethal drugs to self administer, providing they are over 18, have the capacity to decide and communicate this decision and have terminal illness with a prognosis of no more than six months. As of 2007 292 people had received prescriptions, and a study addressing the issue of whether the legislation had increased the risk for those considered vulnerable (defining vulnerable as the elderly, women, those of lower education, the poor, the physically disabled, those with psychiatric illnesses and those from ethnic minorities), and found that legal physician assisted suicide had no greater risk of uptake in such vulnerable groups in comparison to the rest of the population.[37] This does address one of the arguments often touted by those in opposition, who consistently raise the point that the statistics for the elderly and disabled will be disproportionately high as they are considered to be more vulnerable to outside influence. Uptake rates being so low suggest that this is is not correct, although it must be taken into account the fundamental differences in the UK and US health services (insurance based versus free at the point of use) do limit comparisons somewhat.
The next example is Switzerland, a country whose laws are of considerable importance as it is where the vast majority of “suicide tourists” travel to, specifically Dignitas, the medical organisation that assists those with severe illnesses to die. There is no explicit law in Switzerland that legalises assisted suicide; the Swiss Criminal Code Article 115 states that it is only illegal if done with selfish motive.[38] Additionally there are no specific requirements for those seeking assisted suicide to be terminally ill and have a short term prognosis either, and as of 2009 out of the 115 British citizens that had died at Dignitas 8 have not had medical conditions considered to be terminal.[39] This shows a system that has expanded beyond that which the UK is currently debating and can provide insight into how attitudes regarding assisted suicide can be influenced by the legality, as the link between illegal and immoral is strongly intertwined. In a 2011 referendum 85% of inhabitants of Zurich were in favour of not implementing a ban on assisted suicide and 77% of Swiss doctors were in favour of the principle.[40] Such high support could be hailed as a consequence of the success of the system, however it may also be a result of a society that has never had to equate the idea of assisted suicide with illegality, where the option could be discussed openly with their physician and was always seen as another, admittedly more extreme, palliative tool.
Progressing further along the spectrum of how developed a countries commitment to assisted suicide has progressed is the example of the Netherlands, where both assisted suicide and euthanasia have been legalised under the Termination of Life on Request and Assisted Suicide (Review Procedures) Act in 2002.[41] Under the slippery slope argument this should have lead to a considerable uptake, however since the introduction of the legislation only around 1/5 of the requests for such procedures have been carried out,[42] which implies that control mechanisms in place are working, and the rate of physician assisted dying has decreased by a moderate amount every year. This suggests that the argument so often relied upon by opponents to changing the law becomes a logical fallacy when confronted with real world applications.
Conclusion
The aim of this essay was to consider whether the law on assisted suicide in England and Wales is in need of reform, and it has done so by examining past and current reforms that have taken place through case law and through Parliament, before considering the debate in a wider context to establish what the issues surrounding the topic may be and how such matters have been addressed in other countries. It is evident that the law on assisted suicide is in urgent need of reform; as it currently stands the validity is challenged by the implicit sanctioning of suicide tourism (demonstrable by the low prosecution figures of the DPP) and the continued challenges under the ECHR. Additionally allowing such legal ambiguity to exist creates a two tier system where those who have the financial and personal resources to pursue assisted suicide in another jurisdiction are subject to different rules than those who do not, threatening two of the key tenants of the Rule of Law. It is evident that change in this area must come from Parliament, however their unwillingness to bring the issue to the forefront due to its polarising nature suggests that such uncertainty in the law may remain for the foreseeable future.
Bibliography
Primary Sources
Case Law
Airedale National Health Service Trust v Bland, [1993] 1 All ER 821
Pretty v. United Kingdom (2346/02)
R (Purdy) v DPP (2009) UKHL 45
R (Nicklinson and Lamb) v Ministry of Justice, R (AM) v Director of Public Prosecutions [2014] UKSC 38 (25 June 2014).
R (on the application of Nicklinson) v Ministry of Justice (2014)
Legislation
Coroners and Justice Act 2009
Human Rights Act 1998
Suicide Act 1961
International Legislation and Conventions
Convention for the Protection of Human Rights and Fundamental Freedoms
Oregon: Death with Dignity Act 1997
Belgium: Belgium Act on Euthanasia 2002
Netherlands: Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2002
Swiss Criminal Code
Other
HL Assisted Dying Bill (Introduced in 2014)
HL Assistance for the Terminally Ill Bill (2004)
Select Committee on the Assisted Dying for the Terminally Ill Bill Volume I: Report
Secondary Sources
Books
Brannan S et al. The BMA’s Handbook of Ethics and Law, 3rd edition (2012).
Keown J, The Law and Ethics of Medicine (OUP, 2012)
More T, ‘Utopia’ in Cambridge Texts in the History of Political Thought (CUP, 2002)
Madden J, Medicine, Ethics and the Law (2nd Ed, Bloomsbury: Dublin 2011)
Stauch M, Wheat K, Tingle J, Text, Cases and Materials on Medical Law and Ethics (2006) OUP.
Articles
Battin M P, van der Heide A, Ganzini L, et al. ‘Legal physician-assisted dying in Oregon and the Netherlands: evidence concerning the impact on patients in “vulnerable” groups’ (2007) JME 33: 591-597.
Brauer S et al, Swiss physicians’ attitudes to assisted suicide. Swiss Med Wkly. 2015;145:w14142
Burkhardt et al.: Euthanasia and Assisted Suicide: Comparison of legal aspects. Med. Sci. Law (2006) Vol. 46, No. 4
Delamothe T et al, Why the Assisted Dying Bill should become law in England and Wales, BMJ 2014;349:g4349
House of Commons, Assisted Suicide Briefing Paper (2014)
McLean S, C Connelly and J K Mason, ‘Purdy in Scotland: we hear, but should we listen?’ (2009) JR 265 at 276
McPherson C J, Wilson K G, and Murray M A, ‘Feeling like a burden: Exploring the perspectives of patients at the end of life’ (2007) SSM, 64, 417–427
Stark F ‘Necessity and policy in ‘R (Nicklinson and Others) v Ministry of Justice’ (2014) ELR 18 1 104–109.
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[1] Thomas More, Utopia in Cambridge Texts in the History of Political Thought (CUP 2002)
[2] Suicide Act 1961
[3] Airedale National Health Service Trust v Bland, [1993] 1 All ER 821
[4] 865. ibid
[5]873, ibid
[6] Stauch M, Wheat K, Tingle J, Text, Cases and Materials on Medical Law and Ethics (2006) OUP.
[7] 885, Airedale National Health Service Trust v Bland, [1993] 1 All ER 821
[8] Human Rights Act 1998
[9] Convention for the Protection of Human Rights and Fundamental Freedoms
[10] R (on the application of Pretty) v Director of Public Prosecutions (2001)
[11] Article 8, ECHR
[12] Para 65, Pretty v. United Kingdom (2346/02)
[13] Para 40, R (Purdy) v DPP (2009) UKHL 45
[14] McLean S, C Connelly and J K Mason, ‘Purdy in Scotland: we hear, but should we listen?’ (2009) JR 265 at 276
[15] Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide (DPP 2010)
[16] Para 47, ibid
[17] Para 39, ibid
[18] John Keown, The Law and Ethics of Medicine (OUP, 2012)
[19] R (Nicklinson and Lamb) v Ministry of Justice, R (AM) v Director of Public Prosecutions [2014] UKSC 38 (25 June 2014).
[20] Stark F ‘Necessity and policy in ‘R (Nicklinson and Others) v Ministry of Justice’ (2014) ELR 18 1 104–109.
[21] Para 26, R (Purdy) v DPP (2009) UKHL 45
[22] Para 118, R (on the application of Nicklinson) v Ministry of Justice (2014)
[23] Assistance for the Terminally Ill HL Bill (2004)
[24] Coroners and Justice Act 2009
[25] House of Commons, Assisted Suicide Briefing Paper (2014)
[26]HL Deb 7 July 2009 Column 614
[27] HL Deb 7 July 2009 Column 614
[28] HL Deb Vol. 645 col. 1636 6 June 2003.
[29] Select Committee on the Assisted Dying for the Terminally Ill Bill Volume I: Report
[30] HL Assisted Dying Bill (Introduced in 2014)
[31] House of Commons, Assisted Suicide Briefing Paper (2014)
[32] ibid
[33]McPherson C J, Wilson K G, and Murray M A, ‘Feeling like a burden: Exploring the perspectives of patients at the end of life’ (2007) SSM, 64, 417–427
[34] 14 S Brannan et al. The BMA’s Handbook of Ethics and Law, 3rd edition (2012).
[35] BMJ 2014;349:g4349
[36] Death with Dignity Act 1997
[37] Margaret P Battin, Legal physician-assisted dying in Oregon and the Netherlands: evidence concerning the impact on patients in ‘‘vulnerable’’ groups (J Med Ethics 2007;33:591–597)
[38] Article 115, Swiss Criminal Code
[39] Burkhardt et al.: Euthanasia and Assisted Suicide: Comparison of legal aspects. Med. Sci. Law (2006) Vol. 46, No. 4
[40] Susanne Brauer et al, Swiss physicians’ attitudes to assisted suicide. Swiss Med Wkly. 2015;145:w14142
[41] Termination of Life on Request and Assisted Suicide (Review Procedures) Act in 2002
[42] page 568, D Madden, Medicine, Ethics and the Law (2nd Ed, Bloomsbury: Dublin 2011)