Intro
The idyllic death for most is a peaceful descent brought about by old age. Not all get this option as they are plagued by intense mental or physical deterioration, resulting in them wanting to end their life or get their treatment discontinued. The concept of assisted suicide and euthanasia is a controversial one with passionate people on both sides discussing the ethics and morality on whether there should be reform, or whether the current law should stand. This debate has increased as the idea of personal autonomy has gained more prominence (1) and technology has improved to the point of artificially prolonging one’s life, even extending to those with no prospect of recovery (2). Thus, raising questions on the legitimacy of discontinuing methods of prolonging life. Proponents will argue that humans are autonomous beings who have the moral right to assisted suicide or euthanasia without repercussions to those who help them achieve their goal. In addition to a moral autonomous right, appellants have argued that they have legal statutory backing through Article 8 of the ECHR (3) which will be discussed later on in the essay. Maintaining one’s dignity is another argument in favour of the right to die, with a case study in Oregon stating that as much as 66.7% expressing loss of dignity as one of the prime reasons in making their decision to end their life with the loss of autonomy also being high at 91.7% (4). Among the arguments of the opposition is that of the difficulty of ensuring voluntary consent alongside a concern of a risk of abuse considering the vulnerability of potential seekers of assisted suicide. The essay will initially deal with the current standing and issues of the law on euthanasia and assisted suicide before looking in more detail at recent case law developments. Arguments in favour and opposition to reform will then be discussed while also briefly considering the law in other jurisdictions.
Euthanasia V Assisted Suicide
Euthanasia differs from assisted suicide in the sense that it requires a doctor to take an active role in the death of the patient, compared to physician-assisted suicide which involves making lethal means available to the patient, thus a less active role for the doctor (5). Since it requires an active role for a doctor, it satisfies the qualifications of an actus reus and mens rea under criminal law for murder and would thus carry a mandatory life sentence (6). It is irrelevant that the doctors’ motive is out of compassion, as stated in R v Moloney (7), intention is what qualifies the mens rea element. Though this becomes difficult in medical situations where instead of there being a positive act, there is an omission in the form of withdrawing life-prolonging treatment. The aforementioned problem was discussed in the case of Tony Bland (8). Bland suffered irreversible brain damage following the Hillsborough disaster, while not clinically dead he was in a vegetative state with no hope of ever recovering. Both the family and the NHS itself deemed that it would be prudent to shut off his life support system, and thus appealed to the High Court. The decision held that the act of switching off the life support system amounted to an omission rather than a positive act. The House of Lords confirmed the decision, thus clarifying that an omission is not sufficient for either murder or manslaughter, for that there needs to be a positive act composed of an actus reus and mens rea. So doctors do have some protection when deciding to withdraw treatment from a patient. Though this curiously results in a dichotomy in the law since we know from the case of R v Inglis (9) that a mercy killing would, in fact, result in a mandatory murder sentence, subject to some partial defences. The question could be raised on what is the difference between a mercy killing a la Inglis and switching off a life support system as in the case of Bland. Furthermore, there is inconsistency in active euthanasia being illegal but as mentioned, an act discontinuing life support is allowed, despite the fact that in both scenarios the end result is the same. The case of Nicklinson (10) also presents an inconsistency in the criminalisation of assisted suicide and euthanasia in the sense that disallowing his right to die interferes with his right to private life (11). The law is illogical in this area with scholars noting the vagueness of the distinction between killing and letting die, which leads to both legal and moral confusion (12). One could therefore conclude that reform is needed to introduce some consistency to the laws regulating euthanasia. Making it more clear and consistent so people can easily obey and follow them (13).
Previous to the enactment of the Suicide Act 1961, suicide and attempted suicide was a criminal offence under common law that would burden the deceased’s family through the confiscation of property (15) among other things. In the name of compassion, the Act decriminalised suicide and attempted suicide but maintained that assisting a person to die is still a criminal offence. Anyone assisting a soul in their attempt at suicide would be liable for imprisonment for anywhere up to 14 years according to S2 of the Act. Yet this becomes complicated when one might be suffering from physical or mental deterioration that renders them incapable of committing the non-crime of suicide themselves. Resulting in them seeking assistance for the act, which is a crime. This is where assisted suicide differs from euthanasia, those seeking assisted suicide are merely asking doctors to make the means of death available to them instead of asking them to take a positive and active role in their death, a la asking them to administer a lethal chemical to induce death. Many have pointed out the unjustness of prosecuting a doctor for merely helping someone to facilitate their own death to help cease further suffering and indignity.
A Case of Assisted Suicide
One of the leading cases relating to assisted suicide is that of Diane Pretty (16) who was diagnosed with motor neuron disease, which is a degenerative illness that paralyses the body while keeping the mind intact, essentially burdening a sufferer to a prison in their own mind. Pretty was distressed by the oncoming disease and wanted to exercise her autonomy to invoke the right to die to prevent further indignity. As mentioned, the act of suicide is no longer a crime, yet sufferers of the disease are unable to act alone due to bodily deterioration. Assistance is needed to facilitate the process which would place the associate at the mercy of the law. At the first hearing, the husband was declined a grant of indemnity against potential prosecution were he to assist his wife. They then appealed to the European Courts of Human Rights on the basis of potential breaches of fundamentally protected rights, including that of Article 217 of the ECHR which guarantees the right to life. However, it was decided that this Article did not confer the right to die since it did not grant a right to self-determination of life. The state has a duty to protect and maintain the life of the vulnerable, it does not grant the right to die. Pretty also tried to rely on Article 8 which bestows the concept of the right to private life. By interfering with their private life and preventing her from the right to die, the state was breaching this fundamental principle. This argument was also rejected with the court stating that interference of the state is compatible with Article 8 if the state’s interference had a valid aim that is necessary to uphold the rule of law. It was deemed that the interference was necessary and proportionate to protect those who are vulnerable due to their disease and might not be capable of authorising their full consent (18), due to their pain they will not be in a position of true rationality. Without state intervention, the ECHR considered that the vulnerable might be at risk of abuse and manipulation, resulting in the status quo being upheld.
As decided in Pretty, Section 2 of the Suicide Act was incompatible with Article 8 of the ECHR, that of an interference with the right to privacy. But it was ruled that the state’s interference could be justified to prevent abuse of the vulnerable and was sufficiently proportionate. This declaration on the compatibility of state interference under Article 8 was questioned in the recent case of Conway v Secretary of State for Justice (19). Conway was a 68-year-old former professor who, like Diane Pretty was diagnosed with motor neurons disease. Under section.4 of the Human Rights Act 1998 (20) he sought to declare that section 2 of the Suicide Act that allows the ban on assisted suicide was, in fact, disproportionate with his Article 8 rights, contrary to the decision in Pretty. The Secretary of State for Justice disregarded that the blanket ban on assisted suicide was disproportionate and upheld that section 2 of the Suicide Act was necessary to protect the weak and vulnerable and that the Act proposed three legitimate aims; to protect the vulnerable, protect the sanctity of life and to uphold the relationship between doctor and patient. Conway proposed a scheme for reform that he thought would protect the legitimate interest for interference – of protecting the weak and vulnerable- and would thus not breach S2 SA. The scheme advocates the idea that assisted suicide should only be available to those with a terminal illness who have less than 6 months to live, in addition to receiving permission from the High Court (21). The idea being that this would safeguard the process from abuse and protect the vulnerable since there is a rigid appliance system. The efficacy of the scheme was questioned as the court still deemed there to be a risk of abuse and pressure on the vulnerable. Following this, they also stated that the proposed scheme had wide-ranging policy issues which are for Parliament to discuss. Bringing us to a Bill that was proposed in 2015 called the Assisted Dying Bill (22). Lord Falconer commissioned a report in 2011 (23) that expressed how incoherent the current law on assisted suicide is, the report led to the drafting of the Assisted Dying Bill 2014 and the reintroduction of it in 2015. This reform provided a framework for the potential legalisation of assisted suicide, setting out some rules that would include that two independent doctors would separately examine a patient and deem him to have the capacity for consent. They would additionally confirm that the patient is suffering from a terminal illness and that they have been fully informed of any other ulterior forms of care available to that person. Though critics have pointed out that interpretation of the proposed Bill could pose a problem (24), even with sophisticated methods, there is still a degree of uncertainty when it comes to estimating the remaining life expectancy. Under the proposed Bill, only those with less than 6 months to live would have access to assisted suicide, though as mentioned it would be difficult to determine the boundary to whom the right to die should be available. Critics also point out that the stipulation for imminent death would disqualify those like Debbie Purdy (25) who suffer substantial pain due to their disease but will not imminently die. Regardless, this Bill failed to pass the Parliamentary rolls by being defeated in the House of Commons and thereby failing to become an Act of Parliament.
An Argument of Autonomy and a Slippery Slope?
As mentioned previously, one of the prime arguments in favour of reform is that of autonomy. People should be free to do what they want with their own bodies and be able to control their fate. An autonomous person’s decision should be respected because it is their own choice, irrespective of whether it is viewed as a positive or poor choice (26) with Dworkin even stating that not allowing someone to choose the way they die due to tremendous suffering amounts to a form of tyranny (27). Proponents will cite the unfairness of state interference with one’s autonomy in deciding how they die; each person should be allowed to end their suffering should they be crippled by severe pain or distress. Detractors could point out that if autonomy is the prime justification for legalising assisted suicide, then it would be impossible to restrict the Act to merely those suffering from a terminal illness. Those suffering from depression, alcoholism or various other mental health disorders could claim that they have an autonomous right to end their suffering, once access to assisted suicide is granted there could be a slippery slope (28) that allows a wide range of vulnerable citizens to seek a premature end. Two elements of concern arise with the argument of a slippery slope, that of desensitisation of the doctors, leading to a wider interpretation of who qualifies for assisted suicide. Along with the concern that with the normalisation of assisted suicide a wide range of vulnerable people, especially the elderly, will feel pressurised to seek this method against their wishes (29). The phenomena of desensitisation can be observed in two countries where assisted suicide is allowed, that of the Netherlands and Switzerland. Since the case of Alkmaar (30) determined that necessity can be a defence to assisted suicide, physician-assisted suicide has rapidly increased in the Netherlands. Keown reported in 1995 (31) that 0.8% of the annual cases (roughly a thousand), that no explicit consent was given, and therefore a significant number of people were subject to non-voluntary assisted suicides. Thus, within a decade, the safeguards in place to protect the vulnerable were bypassed as doctors widely increased their discretion to allow non-voluntary euthanasia. Dutch regulators do require consultation beforehand to determine the applicability of potential seekers.
Yet it has also been reported that this has degraded over the years as the consultation is now very casual and that potential patients have stretched to those who are merely suffering distress rather than exclusively those with a terminal illness (32). This is also demonstrated in Switzerland where a report demonstrated that in 26% of assisted suicide cases investigated (11 out of 43), no severely disabling disease or a terminal illness was discovered, the major reason for death being ‘bereavement’ (33). A sentiment backed up by another report that declared that the rate of assisted suicide for non-fatal diseases increased from 22% to 34% between the 90’s to 2004 and concluded that ‘weariness of life rather than a fatal or hopeless medical condition’ led to the decision to end their life (34). These reports support the idea of a slippery slope with doctors widening their discretion overtime, perhaps due to desensitisation and show that overtime the protection for the vulnerable erodes and the risk of abuse increases.
Conclusion
To conclude, there is a need for reform for assisted suicide and euthanasia in England and Wales. As discussed in the first section the current law is both morally and legally confusing and in need of some clarification. With the HOL stating that killing by positive act is unjustifiable, but intentional killing by omission is permissible. There is not a clear consensus in terms of the law, resulting in appellants being unsure of the potential legal consequences for their loved ones for assisting their suicide as the case of Purdy demonstrates. Irrespective of whether assisted suicide or euthanasia should be legalised, it certainly needs reform in terms of clarification as to let potential seekers of the right to die know where they stand in the eyes of the law. Proponents in favour of reform cite autonomy as a prime justification for legalisation. That they should have the right to avoid further detriment and indignity through the means of assisted suicide, while detractors note the potential of a slippery slope towards abuse of the vulnerable. Therefore, if a proposal for reform is to be accepted, it would need to safeguard the citizens and satisfy Section 2 of the Suicide Act and conform to the European Conventions. This is a complex issue with societal, legal, and religious connotations which guarantees that this subject will be controversial for years to come.
1 Fran McInerney (2000) ‘Requested Death: The Right to Die’
2 Emily Jackson ‘Medical Law’ (2016, 4rth ed. Oxford University Press)
3 European Convention on Human Rights Art.8
4 Public Health Division, Center for Health Statistics (2018)
5 Ian Kennedy and Andrew Grubb ‘Medical Law’ (2000, 3rd ed. London Butterworths)
6 Nicola Monaghan ‘Criminal Law’ (2018, 5th ed. Oxford University Press)
7 R v Moloney (1985) 1 AC 905 (HOL)
8 Airedale NHS Trust v Bland (1993) 2 WLR 316 (HOL)
9 R v Inglis [2010] EWCA Crim 2637 at [39]
10 Nicklinson v Ministry of Justice (2013) EWCA Civ 961
11 Emily Jackson ‘Medical Law’ (2016, 4rth ed. Oxford University Press)
12 Jonathan Herring ‘Medical Law and Ethics’ (2018, 7th ed. Oxford University Press)
13 Joseph Raz,(1979) ‘The Rule of Law and its Virtue’, in THE AUTHORITY OF LAW 210, 214
14 Suicide Act 1961 S1 and S2 (1)
15 Jan Neelman (1996) ‘Suicide as a crime in the UK’ 16 Pretty v United Kingdom (2002) 2346/02 ECHR 427 17 European Convention on Human Rights Article 2
18 John Keown ‘Euthanasia, Ethics and Public Policy’ (2002, 2nd ed. Cambridge University Press)
19 R v Secretary of State for Justice (2018) EWCA Civ 1431
20 Human Rights Act 1998 S.4
21 Anna Beale (2017) ‘No right to assisted death: Conway v Secretary of State for Justice’
22 Assisted Dying Bill 2015 (No.2)
23 Commission on Assisted Dying (2011) “The current legal status of assisted dying is inadequate and incoherent”
24 Alexandra Mullock (2015) ‘The Assisted Dying Bill and the role of the physician’
25 R (on application of Purdy) v DPP (2009) UKHL 45
26 Antje Pedain (2003) ‘The Human Right Dimension of the Diane Pretty Case’
27 Ronald Dworkin (2011) ‘Life's dominion: an argument about abortion, euthanasia, and individual freedom’.
28 Douglas Walton ‘Slippery Slope Arguments’ (1992, 1st ed, Clarendon Press Oxford) 29 Mike Brogden ‘Geronticide: Killing the Elderly’, (2001, 1st ed. London: J. Kingsley) 30 Schoonheim, Sup. Ct., Alkmaar (1984) , NJ 106:451.
31 John Keown (1995) ‘Euthanasia in the Netherlands: Sliding down the Slippery Slope’.
32 Kathleen Foley and Herbert Hendin ‘The Case Against Assisted Suicide: For the Right to End-of-Life Care’
(2002, Baltimore: The Johns Hopkins University Press).
33 Andreas Frei Et al (2001) ‘Assisted suicide as conducted by a “Right-to-Die”’.
34 Susanne Fischer Et al (2008) ‘Suicide assisted by two Swiss right-to-die organisations’.
