“Death on Demand” - The Technicalities of Assisted Suicide Laws

Abstract

This paper confronts the challenging, and crucial, question of whether assisted suicide should be decriminalised under English law. It does this by first outlining what the laws are; arguments for legalisation of assisted suicide; and arguments against the legalisation of assisted suicide. Additionally, the perspective taken in this paper is that assisted suicide should only be legalised in a certain number of specified cases, rather than a “blank cheque” offered to all prospective individuals who wish to end their life, including those who may assist those individuals to end their lives. Ultimately, this paper finds that though there are reasonable arguments in favour of legalising assisted suicide in a ‘blanket’ manner, whereby all attempts of assistance are guaranteed immunity from prosecution, due to the sanctity of human life, and safeguarding issues of vulnerable persons, assisted suicide should only be permitted in a strict number of circumstances, and only where absolutely necessary to guarantee the lasting dignity of the person(s) involved.

Keywords: assisted, suicide, autonomy, vulnerable, patient.

Introduction

The question which will be discussed and answered in this paper is whether assisted suicide should be legalised under English law. It will consider this in a broad manner: by focussing on alternating cases in which assisted suicide has previously been attempted and successfully prosecuted under English law, it will close in on the specific cases of physician-assisted suicide at the request of a terminally ill patient, whether due to physical or mental health. Additionally, it will look at the Assisted Suicide for Terminally Ill Adults Bill, and whether its contents are sufficiently satisfactory and wide-ranging enough to capture all probable cases of assisted suicide which may arise.

This paper is divided into four ‘Parts’. Part 1 will discuss health and medical law within the parameters of what the law currently is with regards to assisted suicide laws in England and Wales. Part 2 will touch on arguments in favour of decriminalisation of assisted suicide, focussing on the doctor-patient relationship, and Part 3 will outline arguments against any such decriminalisation. Finally, Part 4 will conclude the essay. Ultimately, it may be said that though the Assisted Suicide for Terminally Ill Adults Bill is somewhat sufficient progress made after the cases of Dianne Pretty, Debbie Purdy, and Tony Nicklinson, it does not go far enough to protect the sufficiently vulnerable in order to ensure their lasting dignity and maintaining the sanctity of life.

1. The Law as it Currently Stands

The Act specifies multiple points of interest: assisting suicide is illegal; attempting or committing suicide is no longer a crime; and the offence is “triable on indictment and a person convicted of such an offence is liable to imprisonment for a term not exceeding 14 years”. This is relevant because it shows that, currently, it is indeed illegal to assist, encourage, or abet an individual, whether they are terminally ill or not, to end their own life. In this paper, we are concerned with those who are terminally ill and more specifically, the doctor-patient relationship. Indeed, aiding an individual would mean either providing advice on how to perform the act to end one’s life; information on the amount of drugs to take for a painless death; or helping someone travel to another country to perform euthanasia. Alternatively, for Fontalis, Prousali, and Kulkarni, “voluntary active euthanasia” is when another individual actively administers drugs to cause a person’s death. These are two key examples of the manner in which assisted suicide may occur.

The Director of Public Prosecution (DPP) has discretion as to whether there is a sufficient basis on which to prosecute a putative defendant for assisting the death of another; elements which may be considered to be for compassionate reasons may carry a lesser sentence or lesser indictment, and it is regularly seen, historically, that physicians are rarely prosecuted, or if they are, then of a lesser charge than the maximum 14 years which is enlisted in section 2(1C) of the Act. For instance, in R v Moor, a physician was prosecuted for the assisted suicide of a man named George Liddell, who was suffering from cancer. Additionally, in R v Cox, Ognall J recalled: “[W]hat can never be lawful is the use of drugs with the primary purpose of hastening the moment of death…[o]ne ampoule would certainly kill…the injection here was therefore twice that necessary to cause certain death”. These two cases are very relevant because we see how, in contemporary times, the law is applied with regards to the Act to cases in which physicians assist the suicide of their terminally ill patients. Further, Dr Cox, in the latter case, was not struck off the General Medical Council (GMC) Register, and also resumed practice eventually. This shows that even the judiciary themselves are able to recognise the almost-sufficient grounds in which compassionate reasons operate: if it is the honest, true, and personal choice of the individual in question “A” then the physician who administers life-ending drugs “D” should not, ultimately, be held to high regard in the criminal law as a consequence of following his or her patient’s instructions.

2. Arguments in Favour of Legalisation

In R v Nicklinson, Lord Sumption commented: “The reason for decriminalising suicide was not that suicide had become morally acceptable. It was that imposing criminal sanctions was inhumane and ineffective”. Applying this to the perspective of legalising assisted suicide in certain circumstances, such as with the Assisted Suicide for Terminally Ill Adults Bill 2024, whereby a medical professional “D” has diagnosed the individual “A” with a terminal illness whereby A would die within six (6) months, this shows that it is because, indeed, further criminalisation of assisted suicide on the grounds of terminally ill individuals is proving to be ineffective and unnecessary, especially with the advent of cases such as R v Moor, and R v Cox, as previously outlined. This shows that it isn’t because assisted suicide of terminally ill adults, with full mental capacity, has become morally acceptable, but rather that the Act has proven ineffective in curbing prospective physicians from assisting the suicide of such terminally ill adults.

Additionally, for Herring, “the principle of autonomy…is that people should be permitted to live their lives as they wish, as long as their choices do not harshly impact others”. This line of argument is focussed on that individuals should have full capacity to decide when and how to die, even if it may seem foolish or outlandish to other persons. This is because a large segment of autonomy is that individuals should be free to choose how to live their own lives, rather than at the behest of other individuals or laws enacted to prevent them from living their true selves, especially if it does not harm another individual or group of persons. Additionally, for Dworkin, death is one of those specific instances in which an individual’s wishes should be followed, as it is a personal choice and one of the biggest life events in a person’s life: their end of life. As a result, and for Raz, who also argues that “[I]nevitably shaping one’s dying contributes to giving shape, contributes to the form and meaning one’s life has”, which is relevant in determining whether one should have complete discretion in how, when, and in what manner they pass.

Alternatively, if we analyse the Supreme Court case of Nicklinson, and subsequent media coverage of the case, then we can see the justification of the Supreme Court in rejecting permission of Nicklinson to be assisted by a physician to purposefully end his own life due to being paralysed by a “catastrophic stroke” on human rights grounds, including private life and family life, which was that the appeal may only succeed if assisted suicide is, indeed, contrary to Nicklinson’s Article 8 rights as per the Human Rights Act 1998. It was found that Nicklinson’s bidding to have a declaration of the incompatibilities of the Act wit the Human Rights Act 1998 and the ECHR was dismissed, allowing Parliament to to consider reforming the law; it is not for the courts to “correct” the law, but to apply it, as per this ruling. This case, consequently, prefaced the introduction of the Assisted Suicide for Terminally Ill Adults Bill 2024, which seeks to cover these prospective rights, and to ensure individuals’ right to privacy and autonomy are not infringed or incompatible with the Human Rights Act 1998, or further, the ECHR.

Other good legal cases which highlights these rights and their apparent incompatibility with human rights are that of Pretty, and Purdy. In Pretty, the appellant sought a declaration from the DPP that should an immediate family member, namely her husband, assist her suicide, then he would not be prosecuted under the Act. The DPP rejected this; it was impossible to provide what is termed as ‘blanket immunity’ to an act that has not yet been committed, in addition to Pretty potentially changing her mind, or an innumerable of other scenarios in which she may choose not to end her own life. Pretty cited numerous ECHR articles, therefore the legal issues at hand included whether Pretty not only had the right to live, but the right to die; whether she had complete discretion over her own private life and correspondence; and also whether she had freedom from inhuman and degrading treatment. Indeed, even in Nicklinson, one of their Lordships commented that “[t]o insist that these unfortunate individuals should continue to endure their misery that is their lot is not to champion the sanctity of life; it is to coerce them to endure unspeakable suffering”.

Further, if an individual has the “right to life”, then certainly they should have the right to decide when and how to exit their life, should they wish to not continue living? Indeed, the argument which is propagated by those who argue against assisted suicide is that those who actively choose to wish to end their lives is that this wish is not grounded in rationality; it is precisely because they wish to no longer live that they may be more susceptible to or vulnerable to suicidal thoughts or wish to discontinue living, especially because of some disability or health condition which they are subject to. Moreover, in Pretty, the case was rejected in the preliminary stages as the right of life does not include the right to choose not to live, and indeed, such a legislative authority condoning such acts may lead to the “slippery slope” problem of legislating for death in ordinary human beings without any health problems, which Herring rightfully identified earlier in this paper. The case was also rejected with a split decision at the ECtHR, citing that the United Kingdom had not violated their obligations in providing adequate and sufficient rights under the ECHR, or alternatively, the Human Rights Act 1998.

3. Arguments Against Legalisation

A good starting point for arguments against any potential legalisation of assisted suicide is the Hippocratic oath taken by physicians, whereby they promise to do no harm to their patients, and only good. Indeed, this ventures further into socio-legalities, whereby to what extent is relieving an individual person of their apparent suffering by allowing them to die a safe and calm death, which they believe to be suitable for them, as opposed to following the normative set of moral frameworks in what the judiciary and legislative bodies believe to be morally acceptable or effective in curbing death? This issue is paramount in this paper: it is rightfully because of the vulnerability of incapacitated individuals that they should be protected from the legal landscape surrounding the country, even if they do choose to engage in “suicide tourism” in other countries, including Switzerland and Belgium. Further, even if certain countries have more lax laws in regards to assisted suicide in specified circumstances, this does not equate to the laws of England and Wales to follow in the same course, even if with the ongoing Bill, which has more strict guidelines as to the applicability of legal assisted suicide.

In addition to this, for Shildrick, there is gross contention occurring between bioethicists and those theorists who are proponents of the furtherance of disability rights and access to “death on demand”. The main contention is the extent to which assisted suicide should be legislated for, including its potential decriminalisation, and possible full allowance with laws enacted to support such occurrences. Indeed, as Angell succinctly identifies, the question is that of “whether abuses are likely to be sufficiently rare to be offset by the benefits to patients (who otherwise would be condemned to to face the end of their lives in protracted agony)”. This is relevant because it shows that there are multiple arguments against the potential legalisation of assisted suicide, even if at first glance it may be legislated for with Angell’s quote. For instance, not only is it a slippery slope of legislation, but the question which should be asked is to what end? To what end should assisted dying be allowed; even if it is considered the ‘final right’ to be given to persons to choose whether to live or not, allowing a ‘quick escape’ from life into the “veil of ignorance” previously identified, with regards to not knowing what occurs when someone dies, it is the mere action of legislating for death that appears to be morally unacceptable. Further, it is precisely because of persons’ disabilities and incapacities that they should be protected and only if they meet the listed criteria included in the upcoming Bill, that they should then be considered for assisted suicide.

Still, even if this is the case, legislating for death is never a good idea; there is no appropriate prediction of what may occur if it is swiftly allowed for all individuals who may have a bad day or temporary ailment who may then seek to die in an assisted manner from a reputable physician. This is important because it is not only the individual who wishes to die who would hypothetically be impacted; it is also the physician and their family members who would also suffer because of the actions and choices of one single individual. Further, even if ancient philosophers thought about death, such as Seneca, who wrote: “I shall not abandon old age, if old age preserves me intact as regards the better part of myself; but if old age begins to shatter my mind, and to pull its various faculties to pieces, if it leaves me, not life, but only the breath of life, I shall rush out of a house that is crumbling and tottering”, which is crucial in understanding the moral philosophy or ethics of life and death, allowing legislative bodies to legalise or decriminalise to a large extent the wanting of death for those who may be ill or incapacitated is likely to be a slippery slope of further legislation incoming to legislate for the act of dying, and that which is related to death.

4. Conclusion

Furthermore, in essence, we have seen in this paper three key elements. Firstly, we have touched upon the current standard of the laws in England and Wales surrounding assisted suicide. Secondly, we have discussed arguments in favour of legalisation of assisted suicide. Thirdly, we have assessed arguments against the legalisation of assisted suicide. This Part, attempting to conclude the paper, realises a few key points. Though there are key arguments in favour of the outright legalisation of assisted suicide, such as patient autonomy and respect for private life, it is precisely because of this autonomy that individuals should not have the unequivocal right to access death on demand. Further, the Assisted Suicide for Terminally Ill Adults Bill 2024, though sufficiently satisfactory in its progression of rights with regards to patient autonomy, freedom of choice, respect for private life, and compassionate reasons, it would be unfair to provide blanket immunity to all physicians who may wish to administer suicide as an intervention to a terminal illness, leading to what Herring entitles the “slippery slope” argument. Ultimately, the Bill is dissatisfactory to the extent that it does not provide provision for those who in themselves do not sustain sufficient autonomy to make a judgment call as to whether they should continue living or not, and death, which Jackson rightfully lists as a “veil of ignorance” to the common man, means that the law should not be used to justify the death of certain individuals, and the life of others.

Table of Cases

Pretty v United Kingdom (2346/02) [2002] ECHR 427.
R (on the application of Nicklinson and another) v Ministry of Justice [2014] UKSC 38.
R (on the application of Pretty) v Director of Public Prosecutions and Secretary of State for the Home Department [2001] UKHL 61.
R (on the application of Purdy) v Director of Public Prosecutions [2009] EWCA Civ 92.
R v Cox [1992] 12 BMLR 38.
R v Moor [1999] Crim LR 2000 Jul 568-90.

Table of Acts, Conventions, and Bills

Assisted Suicide for Terminally Ill Adults Bill 2024 (HL).
Equality Act 2010.
European Convention on Human Rights (ECHR).
Human Rights Act 1998.
Suicide Act 1961 (“the Act”).

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