HomepageCommercial LawPrivate LawPublic Law & Human RightsCriminal LawEU & International LawCareers

Accessibility

Have Irlen Syndrome, or need different contrast? Click the button below for options.

Background Colours

Subscribe

Enter you email address below to subscribe to free customisable article notifications.

Alternatively, click the button below for our various RSS Feeds (available journal wide, or per section).

An Introduction to the Assisted Dying Bill 2014

About The Author

Amy Ling (Former Private Law Manager)

Amy graduated with a first in Philosophy from The University of Manchester in 2012. Following three years working within the social housing sector, Amy is currently studying for her LPC and will begin a training contract at a city firm in September 2016. Amy is an accomplished mooter, and was on the winning team in the 2015 JustCite International Mooting competition. Outside of the law, Amy is a keen runner.

The current legal status of assisted dying is inadequate and incoherent.

The Commission on Assisted Dying

Whilst assisted dying has been legalised in jurisdictions including the Netherlands, Switzerland and the United States, the UK has yet to follow this trend. Lord Falconer’s Assisted Dying Bill 2014 passed its second reading in the House of Lords on 18 July 2014. The private member’s bill, fairly unusual in having its origins in the upper house, is one of the most controversial of recent years due to the gravity of the subject matter and the deep ethical and religious divides on each side of the debate. So what issues is the bill trying to address and what are the arguments for and against?

Addressing Assisted Dying Through the Legislature: The Assisted Dying Bill 2014

The number of legal challenges to the current laws on assisted dying has been increasing over recent years: high profile cases include R (Pretty) v DPP, R (Purdy) v DPP and R (Nicklinson) v Ministry of Justice. None succeeded in changing the legality of assisted suicide and it has been made clear in these and in others that the judiciary consider this as an issue best addressed in Parliament and not in the courtroom. As was emphasised as far back as 1993 by Lord Mustill in Airedale NHS Hospital v Bland:

The formulation of the necessary broad social and moral policy is an enterprise which the courts have neither the means nor in my opinion the right to perform. This can only be achieved by democratic process through the medium of Parliament.

The current bill is not the first which has attempted to address the issues surrounding assisted dying and euthanasia; previous proposals have included the Medical Treatment (Prevention of Euthanasia) Bill in 1999 and the Assisted Dying for the Terminally Ill Bill in 2006.

The provisions of Falconer’s bill are such that a mentally competent but terminally ill adult may be lawfully provided with assistance to end their own life upon request. Anyone seeking this remedy must be prepared to sign a declaration expressing their clear and settled intention to die. Two doctors must countersign the declaration, at least one of which must be completely independent of the requestor (i.e. not their general practitioner). These doctors must be confident that it is the clear and settled wish of the person to die, free from influence of conditions such as depression. Any assistance provided must enable the person to self-administer the lethal dose of drugs.

The Illegality of Assisted Suicide

Prior to the enactment of the Suicide Act 1961 (“the Act”), it was illegal for someone to commit suicide and attempts to do so could, with a grim irony, even be punished by death. S.1 of the Act abrogated this as a crime. However, as per Lord Bingham in Pretty, the reasoning behind the change in the law was not necessarily due to changes in social attitudes, but instead because “the common law offence was not thought to act as a deterrent, because it cast an unwarranted stigma on innocent members of the suicide's family and because it led to the distasteful result that patients recovering in hospital from a failed suicide attempt were prosecuted, in effect, for their lack of success”.

So, although suicide was made legal, this “conferred no right on anyone to do so”. This was echoed by Lord Steyn in the same case: “a terminally ill or dying person's wish to die never constitutes any legal claim to die at the hands of another person”.

This goes some way to understanding why assisted suicide remains one of the few areas of criminal law where an act in itself is not illegal, but the assistance of it is (for another example see the Female Genital Mutilation Act 2003).

Under s. 2(1) of the Suicide Act 1961 (“the Act”) (as amended by the Coroners and Justice Act 2009) it is illegal to aid, abet, counsel or procure the suicide of another, or an attempt by another to commit suicide and anyone that is convicted of doing so risks imprisonment for up to fourteen years. Under the provisions of the Act it is not even necessary for the person doing the aiding and abetting to have direct knowledge of the person who then commits suicide, for example as a result of the information uploaded to a website.

The Discretion of the Director of Public Prosecutions

Although there is a clear statutory prohibition on assisted suicide, it remains, according to s. 4 of the Act, at the discretion of the Director of Public Prosecutions (DPP) to find that it would be in the public interest to pursue a case against someone.

The reasoning behind this discretion was somewhat illuminated in as a result of Purdy in 2009, which required that the DPP "clarify what his position is as to the factors that he regards as relevant for and against prosecution". In 2010 the Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide was issued, which lists a series of factors “tending in favour” of prosecution, and a list of those “tending against” prosecution, including “the victim had not clearly and unequivocally communicated his or her decision to commit suicide to the suspect” and “the suspect had a history of violence or abuse against the victim” in the “tending for prosecution” and “the suspect was wholly motivated by compassion” and “the suspect had sought to dissuade the victim” in the “tending against prosecution”.

However, the policy makes clear that these factors do not act like a ‘tick-box’ in tallying up whether prosecution is in the public interest: the policy emphasises that “assessing the public interest is not simply a matter of adding up the number of factors on each side and seeing which side has the greater number. Each case must be considered on its own facts and on its own merits. Prosecutors must decide the importance of each public interest factor in the circumstances of each case and go on to make an overall assessment.”

This case-by-case approach has been praised by some, as compiled in the Commission on Assisted Dying, as a “nuanced compromise” which, “roughly, is in the right place”.

However, the degree of uncertainty remaining, particularly relating to the involvement of medical professionals, was explored once more in (R on the application of Nicklinson) v Ministry of Justice. How is the factor of “the suspect was acting in his or her capacity as a medical doctor” (for prosecution) to be weighed up against “the victim had reached a voluntary, clear, settled and informed decision to commit suicide” (against prosecution)? The judgement declined to specify that the DPP should give a guarantee to categories of people about whether or not they would be prosecuted, but recognised the difficulties this represented.

It can be argued that the introduction of discretion is a ‘back-door’ way of introducing flexibility that fits with the steady liberalisation of attitudes. The lack of clarity also has the risk of introducing arbitrariness to decisions made about prosecution, which sits uneasily with the principles of the rule of law. Resolving such uncertainty is certainly an advantage of addressing the issue of assisted suicide through statute, and sits among those arguments in favour of legalisation.

Arguing About Assisted Suicide

The arguments for and against the legalisation of assisted suicide, so often rolled up with euthanasia, are complex, long-running and far beyond the scope of this article to cover in depth. There are compelling arguments to be made on either side, which centre on some key themes.

Arguments For Legalisation: Autonomy, Dignity and Human Rights

The campaign group Dignity with Dying argue that “[a] change in the law on assisted dying would not lead to more deaths, rather it would lead to less suffering for those dying people who want the choice to control how and when they die”.

Those in favour of this view argue that allowing assisted suicide enables people to realise their autonomy, and exercise control over their own deaths in the same way that they are able to make in life. There is a strong focus on the individual and the ability for them to exercise choices. Debbie Purdy, the subject of the appeal in Purdy argued when speaking in a roundtable discussion in 2010, that:

[I]n my personal case, if I thought that prosecution was probable or possible, I would have taken my life early [while I could still physically do that]. I need the security of knowing that if I make a decision and I've explored alternatives; if I've looked at ways of improving the quality of my life, of maintaining my life in a way that is acceptable to me, and I can't find that, then I can ask somebody for help.

This links closely with the argument that it affords more dignity to those suffering from illness, as they are able to die in a manner of their choosing rather than, for example, as a result of loss of their faculties and bodily functions. This is particularly relevant for those with degenerative mental or physical conditions. Increased dignity also means that death can occur in the presence of family and loved ones, with appropriate medical supervision, rather than covertly and alone.

In Purdy it was also acknowledged that the issue of assisted suicide did engage Article 8 of the ECHR (right to respect for private and home life). It is argued that a blanket ban on assisted suicide in a disproportionate interference in the right to make decisions about private life, though in cases such as Pretty and Purdy it was found that such a ban is proportionate in order to protect the vulnerable in society.

Arguments Against Legalisation: Sanctity of Life and Protection of the Vulnerable

There are very real concerns that making assisted suicide legal will lead to pressure being exerted on vulnerable and disabled people into taking their own lives, and that it is not possible to put in adequate safeguards to prevent this. Campaign groups such as Care not Killing argue: “If assisted suicide or euthanasia is legalised any 'safeguards' against abuse, such as limiting it to certain categories of people, will not work. Instead, once any so-called 'right-to-die' is established we will see incremental extension with activists applying pressure to expand the categories of people who qualify for it”.

These are based on pragmatic ‘slippery slope’ arguments, by which permitting ‘A’ weakens the prohibition on ‘B’, leading to a gradual acceptance and eventual permissibility of ‘B’. This second type is most relevant here, as they key argument that it is that permitting assisted dying for those competent expressing a freely chosen and settled wish to die will eventually lead to the acceptance of assisted suicide for those who would perhaps choose this path so as not to be a burden on their family or others.

And whilst arguments for assisted suicide often focus on the quality of life, many of those against argue that life is of an absolute value in and of itself, pointing to Article 2 of the ECHR. Due to this sanctity, the focus should be on protecting life at all costs and the provision of palliative care. On the other side of the same round-table mentioned above, Baroness Ilorna Finlay, professor of palliative medicine at Cardiff University, argued: “...the law sets a very clear line: we do not kill other people, and when people are suicidal we have a duty in our society to try to help and support them as people...the law gives a very clear message – you do not deliberately end another person's life”.

Religious Influences

There is no denying the religious influences over this debate, as concepts such as ‘sanctity of life’ sit closely with idea that the value of human life can only be granted and taken away by a god. In addition to religious groups being a strong voice in the debate, it is also important to remember that much of the traditional ethical framework in the UK has its historical origins in Judeo-Christian teachings.

Archbishop of Canterbury, Justin Welby, is one of those against the Assisted Dying Bill. For him, his objection rests on the grounds that the bill contains a misinterpretation of compassion: “it is not compassion if in voting for my companion I expose others to danger. This is precisely what would happen if the Assisted Dying Bill became law”.

However, it is not the case that such groups are speaking with a single voice. The former Archbishop of Canterbury Lord Carey has recently spoken publicly about his change of views on the topic, arguing: "[w]hen suffering is so great, when some patients already know that they are at the end of life, make repeated pleas to die, it seems a denial of the loving compassion that is the hallmark of Christianity to refuse to allow them to fulfil their clearly stated request”. Desmond Tutu has also spoken out in favour of assisted dying, following witnessing the suffering of the final weeks of Nelson Mandela’s life: “What was done to Madiba (Nelson Mandela) was disgraceful… I revere the sanctity of life – but not at any cost”.

The Long Road Ahead

It is apparent, even from such a brief examination of the arguments as shown above, that there is a risk that those involved in this debate can begin to talk at crossed purposes, with those in favour of legalisation focussing on those who would wish to utilise the new law, and those who would suffer from conditions to make them eligible to utilise the law but would not choose to do so freely.

As powerful as the image is of an elderly relative being pressurised into death so that any inheritance isn’t used up on expensive care fees, so is the image of Tony Nicklinson, starving himself to death because it would be illegal for a doctor to provide a painless and peaceful alternative. 

Although the bill passed through the second reading in the House of Lords, it did so without a vote, as is the convention in the upper chamber. There are now more readings and debates to go ahead, including the full process in the House of Commons. It is essential that further debates in both the Lords and the Commons address, and in some sense reconcile, the purpose for the bill (realisation of autonomy) with ensuring that purpose sits within an appropriate and well-defined scope.

Consistency

Personally, I am persuaded by the view that a blanket prohibition on assisted suicide is not proportionate and that such a ban is inconsistent with the approach to legislating other fundamental societal practises.  A bill such as the Assisted Dying Bill would introduce a more proportionate approach, although it would be preferable (considering the medical conditions of Debbie Purdy and Tony Nicklinson) for the regulations to take account of degree of suffering rather than life expectancy.

First, there should be the recognition that very few of any of the choices that we make are free from some external pressure and the question is ultimately a matter of degree. Secondly, there are many areas of our social lives - marriage and abortion, as key examples - for which people are at risk of entering into through undue pressure, concerns about their family, lack of money or a plethora of other reasons. However, the spectre of forced marriage has not led to a blanket prohibition of the practice of marriage, so nor should the fear of forced death ban assisted suicide.

For the latest articles straight to your inbox, you can subscribe for free. Alternatively, follow @KeepCalmTalkLaw on Twitter or Like us on Facebook.

Tagged: Constitution, Criminal Law, Human Rights, Medical Law & Ethics

Comment / Show Comments (0)

You May Also Be Interested In...

Exploring the Christian Marginalisation Narrative beyond the Workplace

24th Apr 2018 by Kelly Ann Cannon (Guest Author)

Noel Conway's Case: New Developments in the Right to Die Debate

27th Feb 2018 by Peter Lennon

Sandra Bland: Lessons Learned From Another Needless Death In Custody

10th Aug 2015 by Francesca Norris

Decriminalisation of Abortion

5th Nov 2014 by Francesca Norris

The Semi-Secret Terror Trial - A Leap of Faith in the Judiciary

13th Jun 2014 by Merry Van Woodenberg (Guest Author)

The role of the UKSC recently determined following Chester and McGeoch

11th Nov 2013 by Thomas Horton

Section Pick February

Routier v HMRC: Redefining 'Charitable Purposes' For Inheritance Tax

Editors' Pick Image

View More

KCTL News

Keep Calm Talk Law: Moving Forward

3rd Sep 2019

Changing of the Guard: Moving Keep Calm Talk Law Forward

12th Aug 2018

An Anniversary or Two: Four Years of Keep Calm Talk Law

11th Nov 2017

Rising from the Ashes: The Return of Keep Calm Talk Law

18th Nov 2016

Two Years On, Keep Calm Talk Law’s Legacy is Expanding

11th Nov 2015

Twitter

Javascript must be enabled for the Twitter plugin to function. Click below to visit us on Twitter.

Free Email Subscription

Subscribe to Keep Calm Talk Law for email updates, and/or weekly roundups. You can tailor your subscription on activation. Both fields are required.

Your occupation / Career stage is used to tailor your subscription and for readership monitoring.

Uncheck this box if you do not want to receive our monthly newsletter.

By clicking the Subscribe button, you agree to our privacy policy and terms of service. Please ensure you read these in full.

Free Subscription