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.

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“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]
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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 ...

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