Ethical and Legal Implications of Assisted Suicide in the Uk

Introduction

Context

In the UK, s.2(1) of the Suicide Act 1961 provides that ‘encouraging or assisting’ or ‘intend[ing] to encourage or assist’ a person to commit suicide is a criminal offence: this applies regardless of the circumstances in which such assistance takes place and indeed, as Livings observes, the result will be criminal liability regardless of the wishes of the person seeking assistance. The law has been criticised for failing to respect the autonomy of individuals, and indeed for being inconsistent with a law which has decriminalised the act of suicide itself. In cases where the patient may be dying anyway, and it is on the terminally ill that this dissertation focuses, the issue has centred on the extent to which there is a right, not simply to have one’s autonomy respected, but to a ‘good death’, which does not prolong suffering. For students who are stuck in this complex area, seeking a criminology dissertation help to get valuable guidance and support throughout the entire research and writing process.

Given that one of the aims underpinning medical practice is to alleviate the suffering of patients, and another is to respect their autonomy, it may seem that assisted suicide would be in line with such aims. Further, if one accepts the proposition of ethicists such as Harris that autonomy is recognising a moral agent’s right to determine the direction of their own life, then it might seem irreconcilable to hold that this does not also apply to the manner of a person’s death. In relation to assisted suicide as a form of voluntary euthanasia, Harris is therefore clear that the practice can never be wrong, at least morally. Those in support of the prohibition argue, however, that it is morally reprehensible to take the life of another, and that arguments in respect of autonomy fail to take into account the increased ‘pressure’ on some patients to end their lives which may result if assisted suicide is legalised, or indeed whether physicians may be under a similar pressure regardless of their own views. This, it is argued, seems to add a rather different dimension to arguments that human rights, such as the right to a private life under Article 8(1) of the European Convention on Human Rights 1950 (ECHR), support the decriminalisation of assisted suicide. There are also arguments that the duty of the physician to alleviate the suffering of the patient must be taken in a context where the aim is to ‘heal’ not kill.

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1. Suicide Act 1961, s.2(1)(a).
2. ibid, s.2(1)(b).
3. B Livings, ‘A Right to Assist? Assisted Dying and the Interim Policy’ (2010) 74(1) J Crim L 31-52, 33.
4. D Price, ‘What Shape to Euthanasia After Bland? Historical, Contemporary and Futuristic Paradigms’ (2009) 125(Jan) LQR 142-174, 144.
5. E Jackson, Medical Law: Text, Cases and Materials (Fifth Edition, Oxford University Press 2019) 912.
6. D Madden, ‘Is There a Right to a Good Death?’ (2013) 19(2) MLJI 60-68, 61.
7. B Steinbock, ‘The Case for Physician Assisted Suicide: Not (Yet) Proven’ [2005] BMJ available at https://jme.bmj.com/content/31/4/235 accessed 4/6/2020.
8. ibid.
9. J Samanta and A Samanta, ‘Holistic Determination for Oneself: A New Paradigm for Self-Determination at End of Life’ (2013) 72(3) CLJ 689-719, 689.
10. J Harris, The Value of Life: Introduction to Medical Ethics (Taylor & Francis 1985) 83.
11. D Callahan, ‘When Self Determination Runs Amok’ (1992) 22 Hastings Center Report 52-55, 54.
12. J Harris, The Value of Life: Introduction to Medical Ethics (Taylor & Francis 1985) 83.
13. C de Bellaigue, ‘Death on Demand: Has Euthanasia Gone Too Far?’ (2019) The Guardian available at https://www.theguardian.com/news/2019/jan/18/death-on-demand-has-euthanasia-gone-too-far-netherlands-assisted-dying accessed 4/6/2020.
14. I Goold and J Herring, Great Debates in Medical Law and Ethics (Second Edition, Red Globe Press 2018) 237.
15. ibid.
16. A Jackson, ‘“Thou Shalt Not Kill; but Needst Not Strive Officiously to Keep Alive:” Further Clarification of the Law Regarding Mercy Killing, Euthanasia and Assisted Suicide’ (2013) 77(6) J Crim L 468-475, 469-470.
17. B Steinbock, ‘The Case for Physician Assisted Suicide: Not (Yet) Proven’ [2005] BMJ available at https://jme.bmj.com/content/31/4/235 accessed 4/6/2020.
It is in light of these issues, and indeed how far the UK case law has been able to consider them adequately, that this dissertation conducts a critical analysis of whether the law in England and Wales should be reformed to permit assisted suicide for the terminally ill and, if so, how any legitimate concerns about such reform may be mitigated.

Research Questions

Pursuant to the above, the work dissertation asks:

To what extent should the criminal law in England and Wales be reformed to permit physician assisted suicide and what would be the effect of such reforms on end of life care outcomes? In order to answer this question, the following sub-questions will support the analysis:

1. What are the respective merits and weaknesses of arguments for and against assisted suicide and how effectively have these been considered in the case law?
2. Is there any consistency in the attitudes of healthcare professionals towards the current law and how do these views inform the debate about whether reform of the law can be justified?
3. How can, and indeed should, the law in England and Wales be reformed to facilitate physician assisted suicide?

Chapter Outline and Methodology

Following this introductory chapter, the remainder of the work will proceed as follows:

This chapter will outline the current law on assisted suicide, focusing on the provisions of the Suicide Act 1961, and the interpretation of the law in the case law and Director of Public Prosecution (DPP) Prosecution Policy in respect of assisted dying, noting the existence of recent reform proposals. This will necessitate not simply a consideration of the law itself, but also consideration of how the law has been interpreted in academic and industry commentary as this will enable the adequacy of the law to be evaluated. Whilst the focus of the discussion will be on the law in England and Wales, it will be necessary to consider the jurisprudence of the European Court of Human Rights (ECtHR) insofar as it has affected the development of that law. It will be argued that the law is ineffective and incoherent in terms of the duties on the doctor and what constitutes assistance for the purposes of the law: this in itself, it will be argued, justifies the need for at least some reform. This chapter will critically evaluate the respective merits and weaknesses of the arguments both in favour of and against assisted suicide, and thus build on the discussion of the law in chapter 2 in this regard. These arguments will rest on how far assisted suicide should be permitted to respect the autonomy of the dying person; whether assisted suicide is truly an expression of patient autonomy;

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18. E Wicks, ‘Commentary: ‘Nicklinson and Lamb v UK: Strasbourg Fails to Assist on Assisted Dying in the UK’ (2016) 24(4) MLR 634-640, 636.
19. Suicide Act 1961, s.2.
20. DPP, Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide 2010 amended 2014.
21. Including those in the Assisted Dying Bill 2019-2021.

how far vulnerable persons could be harmed by a change in the law; and the relevance of sanctity of life and slippery slope arguments. Again, the chapter will draw on both primary sources of law and the synthesis of academic and medical industry commentary with a focus on healthcare practitioner views, evaluating the principles underpinning the law and thus how it is currently in line with those principles. It will be argued that whilst the concerns of those who oppose assisted dying in cases of terminally ill patients do appear to be valid, it does seem that they may be mitigated by careful drafting of a law which supports assisted dying. The work will evaluate what will be shown to be the weaknesses in the case law in terms of its considerations of the relevant issues, conducting an analysis of the issues with a view to mitigating those weaknesses throughout the discussion. Building on the analysis in chapter 2 in respect of healthcare practitioner views on assisted dying, the aim of this chapter is to consider whether reforming the law on assisted dying in respect of terminally ill patients would facilitate improved end of life outcomes and be an appropriate form of medical practice, considering academic commentary and again drawing on healthcare practitioner views in this regard. This chapter will draw together the arguments throughout the work in order to present reform proposals for the development of a law to permit physician assisted suicide for terminally ill patients, with procedural safeguards to mitigate the concerns of those who oppose such reform, and the final conclusions in relation to the research questions

The Current Legal Position on Assisted Dying in England and Wales

Introduction

The aims of the chapter have been outlined earlier and thus will not be repeated here.

Suicide Act

As noted in the introduction chapter, s.2(1) of the Suicide Act provides that it is an offence to ‘assist or encourage’ another person to commit suicide, or to intend this regardless of the outcome: there is no definition of what constitutes either assistance or encouragement for the purpose of liability and this will be evaluated later. The legislation is clear that the offence applies not only whether a suicide actually occurs or not, but also regardless of the capacity in which the assister is acting: this means that medical professionals would be covered by this provision if they are assisting in suicide through euthanasia. Aa maximum sentence of 14 years imprisonment applies, although s.2(4) provides that in order for a prosecution to be brought under s.2(1), permission from the DPP must be granted.

There is a distinction between assisted suicide in this way and other forms of euthanasia, which are simply treated as murder or manslaughter under the criminal law., and iIndeed, it must be observed that the legislation, in addition to making clear that assisted suicide is a crime, also decriminalised suicide itself such that according to s.1 ‘the rule whereby it is a crime for a person to commit suicide is hereby abrogated’. Thus even without detailed analysis of the legislation itself and how it has been interpreted in the case law, it is clear that the result of the 1961 Act is to create a criminal offence for assisting in the commission of an action which is not itself a criminal offence. That is not to say of course that there do not exist sufficient policy justifications for the law here, but simply that the position appears somewhat confusing and therefore demands more explanation and reasoning for criminalisation. These reasons will be discussed in more detail in chapter 3 in respect of the arguments for and against assisted suicide; here, it is sufficient to observe that the key reasons rest on what Jackson describes as preventing ‘phony suicide pacts’ whereby a person encourages another to commit suicide with a view to for example inheriting property, or maliciously inciting suicide, often via internet forums. These examples seem rather specific and one may doubt the extent to which they arise in practice; in any event, they do not relate to physician assisted suicide and it will be shown below that as the law still creates liability in such cases, this is problematic. Returning however, to the content of the law under s.2(4) and the need to seek permission from the DPP before a prosecution is brought for assisted suicide, the difficulty here is ascertaining when a prosecution will be brought and therefore what the impact will be on how the law operates in

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22. Suicide Act 1961, s.2(1)(a)
23. ibid, s.2(1)(b).
24. Suicide Act 1961, s.2(1B) as inserted by Coroners and Justice Act 2009, s.59(2).
25. Suicide Act 1961, s.2(1A) as inserted by Coroners and Justice Act 2009, s.59(2).
26. Suicide Act 1961, s.2(1C) as inserted by Coroners and Justice Act 2009, s.59(2).
27. Suicide Act 1961, s.2(4) as amended by the Criminal Law Act 1967, Schedule III, Part II.
28. B Banovic and V Turanjanin, ‘Euthanasia: Murder or Not: A Comparative Approach’ (2013) 43(10) Iran J Public Health 1316-1323, online version no page number available.
29. Suicide Act 1961, s.1.
30. E Jackson, Medical Law: Text, Cases and Materials (Fifth Edition, Oxford University Press 2019) 912.
31. E Jackson, Medical Law: Text, Cases and Materials (Fourth Edition, Oxford University Press 2016) 920.
32. ibid.
practice. This is clear for example from the House of Lords (HL) decision in R (On the Application of Pretty) v Director of Public Prosecutions, in which Lord Steyn held that s.2(4) could not be interpreted to mean that the DPP could ‘stop all prosecutions under s.2(1)’, but rather that the DPP must exercise his discretion in relation to looking at the facts as they have apparently occurred in order to determine whether a prosecution would serve the public interest in a specific case on a post-fact basis. Lord Steyn did however recognise that this did not mean that it would not be possible for the DPP to issue a policy on when the factors to be taken into account in bringing a prosecution under the said section, and indeed this point will be returned to below. Lord Hope held that this question aside, whether a person could seek the assistance of another to end their life could not be considered to be a matter which engaged Article 8, in terms of the right to a private life. On appeal to the ECtHR, it was held that matters relating to how a person chooses to end their life do trigger Article 8(1) and in order to be lawful, must be justified under Article 8(2) as being necessary in society. In this regard however, the prohibition on assisted suicide could be justified on the grounds of ‘protecting the weak and the vulnerable and especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life’, and the ‘blanket nature’ of the prohibition was not problematic particularly since safeguards were provided by the existence of s.(4)., and thatThe a failure to give an assurance against prosecution could also not be considered as disproportionate on the basis that the offence was a serious one and a general exception to prosecution would have a broad ranging effect, such as enabling a person to manipulate the law to their own ends. Further case law on the compatibility between the law and Article 8, notably in cases such as R (On the Application of Nicklinson) v Ministry of Justice, R (On the Application of Conway) v The Secretary of State for Justice, and R (On the Application of T) v Ministry of Justice will be considered later in the work. At this point however, it is simply argued that whilst the ECtHR did disagree with the UK courts in terms of the relevance of Article 8, and it is argued that this may be seen as the first recognition of the importance of autonomy in the law on assisted suicide. However,, it did not seek to claim that the UK law was itself problematic. Subsequently, and apparently echoing Lord Steyn above, in R (On the Application of Purdy) v Director of Public Prosecutions, Lord Brown held that although it was ‘obvious’ that the DPP could not be required to give a commitment in advance that a prosecution for assisted suicide would not be brought in a particular case, this did not mean that it would not be possible for the DPP not to outline a general approach upon which decisions to prosecute would be taken. A similar point

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33. R (On the Application of Pretty) v Director of Public Prosecutions [2001] UKHL 61.
34. ibid, [65], (Lord Steyn).
35. ibid.
36. ibid, [66].
37. ibid, [100], (Lord Hope).
38. Pretty v United Kingdom (2002) 35 EHRR 1, [62].
39. ibid, [74].
40. ibid, [76].
41. ibid.
42. ibid, [77].
43. R (On the Application of Nicklinson) v Ministry of Justice [2014] UKSC 38.
44. R (On the Application of Conway) v The Secretary of State for Justice [2017] EWCA 1431.
45. R (On the Application of T) v Ministry of Justice [2018] EWHC 2615.
46. R (On the Application of Purdy) v Director of Public Prosecutions [2009] UKHL 45.
47. ibid, [76], (Lord Brown).
48. ibid.
made by Baroness Hale in reference to the underlying rationale for the criminal law and the need for the law to be predictable: she stated that people are ‘entitled to be warned in advance’ what the law is, in order to determine their liability. Again, one would not seek to disagree with such a proposition, pointing for example to a speech of Lord Mance in 2011, in which he observed that whilst the principle of certainty does have ‘limits’, ‘as much of it as possible is desirable’ in order to ensure that the law is knowable by all who are affected by it. However, it will be shown below that the action taken by the DPP in publishing a policy in this regard has not introduced certainty in the way envisaged here, and the lack of certainty goes far beyond the sort of limitations envisaged by Lord Mance.

The DPP Policy

The DPP policy was published following the decision and contains a number of factors which render prosecution ‘more likely’ and indeed ‘less likely’. The factors are not definitive however, and indeed the policy is clear that a decision on prosecution will be made based upon the specific facts in each case, with the ‘weight’ between the factors varying accordingly: guidance is not provided on how this might be achieved beyond examining the relevant facts. This might seem only sensible such that the law is able to apply in a variety of cases before it, but it will be demonstrated below that the result is simply to exacerbate the lack of certainty already in existence as a result of the framing of s.2(4). At this point, it should be noted that whilst the Pretty and Purdy decisions were not physician assisted suicides but rather involved the applicants seeking assurances from the courts that their partners would not be prosecuted for assisting them in committing suicide, the DPP guidance, and indeed as shown above the legislation itself, does not explicitly distinguish between whether the person who assists another to commit suicide does so in a professional or familial capacity. However, as Jackson observes, medical professionals are more likely to only be acting compassionately rather than being motivated by ‘escap[ing] the burdens of caring’ and thus factors such as ‘the suspect not [being] wholly motivated by compassion’ which mean prosecution is more likely may not apply in doctor assisted suicides, such that physicians might be less likely to be prosecuted than family members. This may appear to make sense given the apparent rationale for the law being to prevent persons being manipulated into suicide for the financial gain of another, as discussed earlier, and indeed would appear to offer some certainty in the policy, contrary to the assertions above. To put it in a gist, the DPP guidance on prosecution appears to put more burden on family persons as compared to medical professionals because the former are more likely to be motivated by financial reasons or by reason of wanting to be done with the burden of care of the patient. The difficulty however is that the DPP policy is simply a list of relevant factors and thus is likely to be of little comfort to medical practitioners who may be acting out of compassion but may be concerned about potential

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49. ibid, [59], (Baroness Hale).
50. Lord Mance, ‘Should the Law be Certain?’ (2011), Paragraph 48, Supreme Court Speech available at https://www.supremecourt.uk/docs/speech_111011.pdf accessed 9/6/2020.
51. ibid Paragraph 46.
52. DPP, Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide 2010 amended 2014, Paragraph 43.
53. ibid, Paragraph 45.
54. ibid Paragraph 39.
55. ibid.
56. E Jackson, Medical Law: Text, Cases and Materials (Fourth Edition, Oxford University Press 2016) 926.
57. ibid.
58. DPP, Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide 2010, Paragraph 43(6).
prosecution under the criminal law for assisted suicide. Adenitire may be correct in writing that, ‘it is entirely plausible that a doctor may provide assistance in dying to a non-related person, not for personal gain and out of a conscious conviction that assisted dying is not only morally permissible, but in some tragic cases, when explicitly requested, morally required’., but However, the mere fact that the policy seems to suggest that a compassionate motivate is unlikely to lead to a prosecution is not, it is submitted, to be considered of much comfort to a practitioner concerned about liability. It is true that beyond its comments about compassion, the policy does state that a prosecution is not likely to be sought where inter alia that where the victim has made a clear choice, the assister was ‘motivated by compassion’, the assistance was ‘minor’, or indeed the assister had sought to try to change the mind of the victim, particularly if the suicide was reported by the assister to the police., a prosecution is not likely to be sought. Again therefore, this would seem to be applicable in the type of practitioner case envisaged by Adenitire, but because, as noted above, the policy does not suggest how the weighting between factors is to be conducted, even this cannot be considered to provide certainty for medical practitioners. In any event, the guidelines, as Rogers observes, might be subject to ‘change’, and are not themselves constitutive of the law, and thus predicting liability is still likely to be difficult for physicians. A further point is made here by Biggs, who suggests that even if it is true that compassion as a motivator might suggest lesser culpability than for the assister who is motivated by other means, the focus on compassion as a factor in prosecution is a ‘departure’ from the general operation of criminal law and this seems to introduce further confusion on the issue of physician assisted suicide. As such, it is argued that as all that the policy provides is a list of factors which suggest that prosecution is either more or less likely, then they cannot ever be of determinative value for those who may assist in a suicide, and that Biggs’ point here is simply another dimension to this lack of certainty. In any event, it will be shown later that despite the policy being able to be read to suggest that practitioner liability is unlikely, the opposite interpretation is equally, it not more, likely. Before considering this however, a further point, as noted earlier, is that the law does not state what type of action will constitute assistance for the purposes of the law. Aside from the perhaps rather obvious example of providing medication, Jackson suggests that there may be a question of whether action such as ‘providing a patient with a copy of her medical records’ pursuant to traveling to a country where assisted suicide is legal could constitute assistance for the purposes of the law on assisted suicide. It is true, and Jackson recognises this, that patients are entitled as a matter of law to be provided with such records anyway and as such it seems unlikely that providing records could constitute assistance to suicide. Indeed, and again, this point is made by Jackson, and the General

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59. E Jackson, Medical Law: Text, Cases and Materials (Fourth Edition, Oxford University Press 2016) 926.
60. J Adenitire, ‘A Conscience Based Human Right to be “Doctor Death”’ (2016) Oct PL 613-630, 618.
61. DPP, Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide 2010, Paragraph 45(1).
62. ibid, Paragraph 45(2).
63. ibid, Paragraph 45(3).
64. ibid, Paragraph 45(4).
65. ibid, Paragraph 45(6).
66. J Rogers, ‘Prosecutorial Policies, Prosecutorial Systems, and the Purdy Litigation’ (2010) 7 Crim LR 543-564, 556.
67. H Biggs, ‘Legitimate Compassion or Compassionate Legitimation? Reflections on the Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide’ (2011) 19(1) Feminist Legal Studies 83-92, (downloaded page numbers 1-14), 6, available at https://eprints.soton.ac.uk/204615/ accessed 9/6/2020.
68. E Jackson, Medical Law: Text, Cases and Materials (Fourth Edition, Oxford University Press 2016) 926.
69. ibid.
70. ibid.
Medical Council (GMC) has outlined a number of circumstances which ‘will not normally’ constitute the basis for an investigation into whether a practitioner remains fit to practise following an accusation of involvement in an assisted suicide case. These circumstances include for example not only access to patient records, but also outlining information on the content of the law insofar as the practitioner comprehends it, and giving ‘information or evidence’ in legal cases on assisted suicide. Elsewhere in the guidance, the GMC states that the role of the practitioner does include discussing with a patient their ‘reasons’ for wishing to proceed with suicide or assisted suicide, but must not go as far as ‘actively encouraging or assisting’ that patient in their carrying out of this decision. It is argued that this seems contradictory and is thus entirely unhelpful for the practitioner in determining what they may or may not do, and the type of action which might constitute assistance and thus lead to liability if it does not fall under one of the envisaged circumstances in the guidance. Quite how then, theThe question is whether the medical practitioner, with only the policy and guidance such as that produced by the GMC for support, is in a better position than the partner of either Dianne Pretty or Debbie Purdy. The answer is difficult to comprehend, and this is problematic not only due to there being a needing to befor certainty in the law but also again because the purpose of the prohibition on assisted suicide, despite suicide itself not being a crime, has been shown to be to prevent encouraging of suicide for financial gain, rather than applying to prevent doctors from assisting their patients. It was noted earlier that there is no clear separation in the policy in terms of the capacity of the assister and this is true other than in respect of Paragraph 43(14), which provides that a prosecution will be more likely to be brought in the public interest where the assister was acting ‘in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer, or as a person in authority and the victim was in his or her care’. In terms of how this should be understood for the medical professional, it is clear from R (On the Application of AM) v Director of Public Prosecutions, that before the underlined section was added in 2014 by the DPP following the litigation, the mere involvement of a medical professional in an assisted suicide case would make prosecution more likely: this is completely contrary to the arguments made earlier in the chapter and thus highlights further confusion, it is argued, in the content of the policy. Thus, as Lord Sumption held, ‘the professional character of an assister’s involvement is in all circumstances a factor tending in favour of prosecution although one whose weight will vary according to the circumstances’. Given that itIt has been shown earlier in this chapter that the public policy reason for rendering assisted suicide unlawful when suicide itself has been decriminalised is to prevent manipulation of others for gain, and this does not seem to be a factor in physician assisted suicides., In light of this, this it seems entirely illogical, in addition to not being

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71. GMC, Guidance for the Investigation Committee and Case Examiners When Considering Allegations About a Doctor’s Involvement in Encouraging or Assisting Suicide (Updated 2013), Paragraph 22, available at https://www.gmc-uk.org/-/media/documents/DC4317_Guidance_for_FTP_decision_makers_on_assisting_suicide_51026940.pdf accessed 5/6/2020.
72. ibid, Paragraph 22(b).
73. ibid, Paragraph 22(a).
74. ibid.
75. ibid, Paragraph 10.
76. ibid.
77. DPP, Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide 2010 amended 2014, Paragraph 43(14) emphasis a result of the 2014 amendment.
78. R (On the Application of AM) v Director of Public Prosecutions [2014] UKSC 38.
79. ibid, [251], (Lord Sumption).
80. ibid, [250].
81. ibid.
82. E Jackson, Medical Law: Text, Cases and Materials (Fourth Edition, Oxford University Press 2016) 926.
reconcilable with the comments in the other factors about the importance of, for example, compassion, for there to be an inclusion of capacity specific provision for when prosecution is likely in public interest. Indeed, it was argued above that the factors against prosecution focus on cases where compassion seems to be the primary motive and as this has been shown to be most likely in cases where the assister is a medic rather than a family member or friend who may have other motives, such as financial gain or escaping the burden of care., this Ttherefore, this again emphasis on capacity in Paragraph 43(14) seems problematic. It is true of course that the policy has now been amended such that it is not now the mere fact that the person is acting in a professional capacity which tends towards prosecution, but rather that they are acting in this capacity and they already have a relationship with the patient such that they may have exercised ‘influence’ on the victim. However, again, it is submitted that there is nothing to suggest that there is a greater likelihood of a medical professional with a care relationship with the victim exerting influence on that victim than any other person doing so, and that in fact, since there is usually no means of the healthcare professional gaining from the death, this influence actually seems less likely.: Iit is true of course that influence might be exerted upon the patient from elsewhere, but this has no bearing on the physician’s liability. Thus, in addition to it being difficulty to in prediction on not only what type of action might constitute assistance for the purposes of the law, it seems that it may be that the medic is more likely to be prosecuted notwithstanding the language of the guidance and the logic underpinning it, and this appears unjustified and contrary to the aims of the law.

Guidance on the policy by the BMC

British Medical Association (BMA) has, in a similar way to the GMC, provided guidance on the type of action which the healthcare professional may take without this constituting assistance for the purpose of liability under the assisted suicide law., and BMC advises that in this regard it states for example that giving guidance on what a ‘fatal dose’ might be; advising how anti-emetics might be useful in mitigating the effects of such a dose; discussing travelling abroad to undertake assisted suicide; or giving guidance on assisted suicide in any other way, should all be avoided. However, not only does the document BMC guidance also state that the physician should not ‘brush past what [the patient] wishes to talk about’ thus appearing to render it potentially difficult for the practitioner to always refuse to provide information in the ways discussed above, but it also recognises that the law itself is not clear on what assistance is for the purposes of the law. Again, there is a lack of clarity in the guidance which prevents clinicians from knowing how the law applies to them.

83. DPP, Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide 2010 amended 2014, Paragraph 65(2)
84. M Seager, ‘Who Cares for the Carers? Keeping Compassion Alive in Care Systems, Cultures and Environments: A Psychologically Minded Approach’ Chapter 4 in S Shea, R Wynward and C Lionis, Providing Compassionate Healthcare: Challenges in Policy and Practice (Routledge 2014) 49.
85. DPP, Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide 2010 amended 2014, Paragraph 43(14) emphasis a result of the 2014 amendment, footnote 1.
86. BMA, Responding to Patient Requests for Assisted Dying: Guidance for Doctors (Updated 2019), 3, available at https://www.bma.org.uk/media/1424/bma-guidance-on-responding-to-patient-requests-for-assisted-dying-for-doctors.pdf accessed 6/6/2020.
87. ibid.
88. ibid.
89. ibid.
90. ibid 4.
91. ibid 3.
To return to Baroness Hale’s comments in Purdy, ‘a major objective of the criminal law is to warn people that if they behave in a way which it prohibits they are liable to prosecution and punishment’. If there is a lack of clarity in the law, both in terms of when prosecutions will be brought against physicians and, more fundamentally, whatdefining what assisting in suicide short of directly acting to bring about death comprisesmeans, then it cannot be accepted that this has beenthe need of clarity is fulfilled. Reidy certainly seems correct, and this has been shown throughout the discussion above, that the DPP’s policy cannot be considered to have provided clarity in the law in that it simply contains a list of factors to be taken into account and some of the issues with these have been outlined. However, it is submitted that even if the policy was able to be clear on exactly when prosecutions would be brought, it would be unable to change the content of the law and as this does not define what assistance comprises, it is argued that the law itself remains problematic. The analysis throughout this section has therefore demonstrated that the law on assisted suicide is incoherent: at the very least therefore, it is argued that there is a need for reform of the law to ensure that physicians can determine what action will constitute assistance with suicide.

Impetus for Reform: Proposals to Date

The aim here is not to provide a comprehensive evaluation of reform proposals. Rather, it is simply observed that in January 2020, the first reading of the Assisted Dying Bill 2019-2021, a Private Members’ Bill initiated by Lord Falconer, took place in the House of Lords and further progress is still to be arranged. The Bill is a Private Members’ Bill initiated by Lord Falconer, which aims to facilitate ‘lawful’ assistance to end their life to a person who has a terminal illness receiving ‘lawful’ assistance to end their life where they wish to do so. This is subject to certain safeguards including relating to the autonomous nature of the decision; and that a statement is made; and that it is clear that the person is over the age of majority; has capacity in relation to the decision; and has lived in either England or Wales for at least a year before the decision has been made. The Bill is not the first attempt by Lord Falconer to bring about reform in the law by Lord Falconer. His Lordship also brought forward the Assisted Dying Bill 2013-2014, which made similar provisions in respect of persons with terminal illnesses although it did not progress before Parliament was prorogued in the relevant session. Lord Hayward also introduced the Assisted Dying Bill 2016-2017, again in the House of Lords. The Bill made similar provisions, was limited to terminally ill persons, and
92. Purdy, [59], (Baroness Hale).
93. S Reidy, ‘English Law on Assisted Suicide: A Dangerous Position’ (2012) 18(2) MLJI 68-75, 71.
94. Parliamentary Business, ‘Assisted Dying Bill 2019-2021’ (2020) available at https://services.parliament.uk/bills/2019-21/assisteddying.html accessed 6/6/2020.
95. he Assisted Dying Bill 2019-2021, s.1(1).
96. ibid, s.1(2)(a).
97. ibid, s.1(2)(b).
98. ibid, s.1(2)(c)(i).
99. ibid, s.1(2)(c)(ii)
100. ibid, s.1(2)(c)(iii).
101. Assisted Dying Bill 2013-2014, ss.1 and 2.
102. Parliamentary Business, ‘Assisted Dying Bill 2016-2017’ (2017) available at https://services.parliament.uk/bills/2016-17/assisteddying.html accessed 6/6/2020.
103. Assisted Dying Bill 2016-2017, ss.1-2.
104. ibid, s.2
received only a first reading. A number of similar Bills including the Assisted Dying for the Terminally Ill Bill of 2004-2006 and the Patient (Assisted Dying) Bill 2003 have also been brought forward, none of which have resulted in a change to the law.

Summary

The law is unclear in terms of what constitutes assistance or encouragement of suicide, and thus the physician will be unable to clearly determine whether any action or advice given to a patient who either wishes, or may wish, to end their life, will fall foul of the law. This clearly contravenes the principle of certainty in the law. Iin addition, it is to being a contradictiona contradiction in the sense that the prohibition on assisted suicide has been shown to exist to prevent the encouragement of suicide such that a person might inherit from the patient, which; as this is unlikely to occur in physician led suicides where the patient is terminally ill. anyway, that theRegardless of this, the law is framed in such a way that liability is more likely to be found in such situations involving physicial assisted suicide rather than in cases against which the law was actually targeted. This anomaly, shows that there is a clear need for reform.

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105. Parliamentary Business, ‘Assisted Dying Bill 2016-2017’ (2017) available at https://services.parliament.uk/bills/2016-17/assisteddying.html accessed 6/6/2020.

Introduction

Arguments For and Against Assisted Suicide: Autonomy and Protection of the Vulnerable

Autonomy of the individual

It was noted in the introduction to this work and indeed in the previous chapter, that one of the arguments in favour of supporting assisted suicide is respect for autonomy of the individual. This would seem justifiable on the basis that, to again cite Harris, respect for moral agents involves respecting their individual choices. In the medical context more generally, it is clear that respect for autonomy is a ‘cornerstone’ of practice and one which underpins the doctor-patient relationship. Indeed, it is difficult to find an argument that autonomy should not be respected; here for example, Herring is clear that autonomy is rarely ‘reject[ed]’. and indeed Aalthough this does not mean that there exists no opposition to it, it is submitted that even the examples to which Herring points highlight that questions surrounding the importance of autonomy seem to focus on the extent to which it should be balanced with other considerations, rather than whether autonomy should be protected at all. Thus, Keown argues that whilst it may be ‘difficult’ to accept that some choices of an individual are deserving of respect from others, perhaps where they cause objective harm, the fact remains that autonomy should only be undermined minimally and where considered necessary for some justified reason. Indeed, the point of Keown’s analysis is that in exercising an autonomous choice, there is a responsibility on the individual to make a choice which ‘promotes’ their own ‘flourishing’ and whilst this certainly raises questions in terms of whose view of flourishing should be considered relevant in this regard, it is submitted that it does not really constitute an argument against autonomy as a principle. Rather, it is argued, the point is that whilst some autonomous decisions might certainly be unwise, and one might be cautious in accepting them simply because they are an ostensible exercise of individual choice, the question should be how far it is permissible to intervene in that unwise autonomous decision making rather than instead asserting that unwise choices should in a position to make a decision in wishing to end their life due to terminal illness, but may not have the physical capability of bringing about the outcome through suicide. In such situations, the patient may look to physician assisted suicide. This is problematic because Given that the framing of the current law seems only to respect the choice of the individual to end their life where they do not

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106. J Harris, The Value of Life: Introduction to Medical Ethics (Taylor & Francis 1985) 83.
107. J Samanta and A Samanta, ‘Holistic Determination for Oneself: A New Paradigm for Self-Determination at End of Life’ (2013) 72(3) CLJ 689-719, 689.
108. M Brazier, ‘Do No Harm – Do Patients Have Responsibilities Too?’ (2006) 65(2) CLJ 397-422, 399.
109. J Herring, Medical Law and Ethics (Sixth Edition, Oxford University Press 2015) 208.
110. ibid.
111. J Keown, ‘The Legal Revolution: From Sanctity of Life to Quality of Life and Autonomy’ (1998) 14(2) Journal of Contemporary Health Law and Policy 253-285, 263.
112. ibid.
113. ibid.
114. ibid.
require assistance to do this., Oone might be inclined to consider that there is no such respect for autonomy in the law and thus no assessment of how far autonomy should be protected, and that this seemsis fundamentally problematic possible that autonomy has been justifiably restricted to protect other values. As practitioners writing in the British Medical Journal (BMJ) have argued, autonomy is ‘not absolute’ but rather, although it underpins medical practice, should be balanced by other principles, as which may be relevant depending on the context.

rotection of the vulnerable

In terms of assisted suicide, the key principle here is protecting the vulnerable from abuse: the potential for the impact on the doctor-patient relationship will be considered in chapter 4 but at this point, it is submitted that such abuse would appear to exist in terms of the potential for a person to be pressuriseded into ending their life. In this regard, the starting point is to note that it might be the case that even if individual patients do make independent choices to end their life, this could lead to a ‘slippery slope’ whereby patients feel that they should also end their lives because they perceive themselves as a burden and assisted suicide is available. This, ostensibly, could be exacerbated by the unscrupulous, or those seeking to minimise costs to the healthcare system, or those seeking to minimise burden of private care, to remove the burden of looking after relatives, or indeed those seeking to realise inheritance or other financial gain. These concerns certainly seem viable, and one does not seek to suggest that mechanisms to ensure protection for the vulnerable should not be built into any framework which decriminalises physician assisted suicide to better respect autonomy and ensure that the rationale for the law is better respected in practice. Indeed, if a person feels pressure to end their life from some other source and asks a doctor to assist, regardless of the factors motivating the doctor’s actions, then it might be difficult to say that the decision is truly voluntary and thus can be justified pursuant to arguments about respecting a person’s choices about the manner of their death. There may not be a justification for holding the doctor liable, but this does not mean that the patient is protected from abuse and pressure to end their life. This certainly demonstrates that the debate surrounding autonomy is complex and not dealt with simply by asserting the importance of the concept in medical practice. However, it is argued that the potential for coercion exists in many

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115. SI Deo, ‘Conscientious Objection in Medicine’ [2006] BMJ available at https://www.bmj.com/rapid-response/2011/10/31/autonomy-never-absolute accessed 10/6/2020.
116. SW Smith, ‘Fallacies of the Logical Slippery Slope in the Debate on Physician Assisted Suicide and Euthanasia’ (2005) 13(2) Med LR 224-243, passim.
117. L Bazalgette and P Cheetham, Report to the Commission on Assisted Dying: Demos Research With Vulnerable Groups (2011), passim, available at https://www.demos.co.uk/wp-content/uploads/2016/09/Commission-on-Assisted-Dying-Vulnerable-Groups.pdf accessed 10/6/2020; E Grogan, R Beattie, C Campbell, R George, T Harlow, B MacGregor, and D Oliver, ‘Assisted Dying is not the Solution’ (2009) 70(8) British Journal of Hospital Medication 434-435, 435.
118. S Chahal, ‘Assisted Dying: A Right to Autonomy and Dignity’ (2017) The Law Society Gazette available at https://www.lawgazette.co.uk/legal-updates/assisted-dying-a-right-to-autonomy-and-dignity/5063512.article accessed 10/6/2020.
119. TDG Frost, D Sinha and BJ Gilbert, ‘Should Assisted Dying be Legalised?’ (2014) 9(3) Philosophy, Ethics and Humanity in Medicine available at https://peh-med.biomedcentral.com/articles/10.1186/1747-5341-9-3 accessed 10/6/2020.
concepts and that rather than prohibiting any autonomous decision making in case non-autonomous decision making occurs, it is preferable to build safeguards into the law to ensure that the vulnerable are protected. Support here for the above argument may be taken from Benatar, who argues that the issue problem with submitting that the possibility of abuse and exploitation of the vulnerable supports prohibition, and it certainly seems that there is such a potential with a change to the law, is that if the possibility of abuse were a sufficient argument for prohibition then many other activities would also need to be unlawful.; thusThus, he says, ‘driving, for example, would have to be prohibited on the grounds that this right is abused and none of the safeguards we have against such abuse are completely effective’. It is argued therefore that whilst there is a clear need to ensure that the vulnerable are protected, this is not tantamount to an argument that thedoes not mean that lead to the conclusion that the protection of the vulnerable necessitates a restriction of the autonomy of all individuals who, in order to exercise their autonomy to end their lives, require the assistance of others.

Reconciling autonomy for the individual with the protection of the vulnerable

120. D Benatar, ‘A Legal Right to Die: Responding to Slippery Slope and Abuse Arguments’ (2011) 18(5) Curr Oncol available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3185895/ accessed 10/6/2020.
121. ibid.
122. ibid.
123. L Morrison, ‘Physician Assisted Suicide – A Good Death?’ (2007) 1 British Journal of General Practice available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2169322/ accessed 10/6/2020.
124. S Halliday, ‘Comparative Reflections Upon the Assisted Dying Bill 2013: A Plea for a More European Approach’ (2013) 13 Medial Law International 135, Online Version, No Page Numbers Available.
however, the importance of patient autonomy cannot justify the lack of respect for individual choice inherent within the current law cannot be justified,, particularly in a framework which recognises that suicide itself is not unlawful. Whilst the protection of the vulnerable should always be a goal of the criminal law, it is suggested that it is too simplistic to hold that such protection can only be achieved at the expense of autonomy. and that aA balancing exercise between the two aims of protection of the vulnerable and the autonomy of the patient is much more appropriate under the circumstances. Finnis might be correct that in saying that by ‘in choosing to refuse to violate’ life and thus not assisting with suicide, a doctor respects fundamentally what it means to be a person., and again tThis might be true for some understandings about morality and humanity. This leads to subjective considerations about whose morality is appropriate, and indeed if the person who wishes to end their life does not hold such a view, then it is difficult to accept that there is real respect for humanity by refusing to grant such help. Of course, a distinction should be drawn here between the right to seek assistance and the right to demand it., and iIndeed it might be the case that any right to assisted suicide would be capable of infringing the autonomy of the doctor in the same way as refusing to change the law undermines the autonomy of the patient. It is submitted however that

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125. Nicklinson, [199], (Lord Wilson).
126. House of Lords Select Committee on Assisted Dying for the Terminally Ill Minutes of Evidence 2004, available at https://publications.parliament.uk/pa/ld200405/ldselect/ldasdy/86/5011302.htm accessed 10/6/2020.
127. ibid.
128. J Finnis, ‘The Fragile Case for Euthanasia: A Reply to John Harris’ in J Keown, Euthanasia Examined (Cambridge University Press 1995) 32.
129. ibid.
130. M Brazier, ‘Do No Harm – Do Patients Have Responsibilities Too?’ (2006) 65(2) CLJ 397-422, 400.
131. S Sathasivam, ‘Autonomy in Assisted Suicide’ [2012] GM Journal 47-48, 47.

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132. Nicklinson, [199], (Lord Wilson).
133. House of Lords Select Committee on Assisted Dying for the Terminally Ill Minutes of Evidence 2004, available at https://publications.parliament.uk/pa/ld200405/ldselect/ldasdy/86/5011302.htm accessed 10/6/2020.
134. ibid.
135. J Finnis, ‘The Fragile Case for Euthanasia: A Reply to John Harris’ in J Keown, Euthanasia Examined (Cambridge University Press 1995) 32.
136. ibid.
137. M Brazier, ‘Do No Harm – Do Patients Have Responsibilities Too?’ (2006) 65(2) CLJ 397-422, 400.
138. S Sathasivam, ‘Autonomy in Assisted Suicide’ [2012] GM Journal 47-48, 47.

assisted suicide did trigger the protection under Article 8(1), and this, it is evident was precisely because it is logical that the right to determine the course of one’s life should take must includes a right to engage in behaviours which might be considered ‘dangerous’. As shown earlier however, the TheCourt did recognise that the prohibition on assisted suicide could be justified under Article 8(2). It is submitted that the speech of Baroness Hale in Pretty is more nuanced than the ECtHR here and indeed may explain the UK approach which recognises suicide is as lawful but not where it is assisted by anothercriminalises assisted suicide. In this regard, the Baroness stated that whilst ‘it is not for society to tell people what to value about their own lives’, and thus seeming to respect the autonomy of individuals, this does not mean that the law should not intervene with this the exercise of autonomy in some circumstances. Her Baroness Hale’s focus was on the distinction between terminally ill patients who may seek assistance with a death which is imminent anyway, and those who may have a disabling condition or indeed wish to end their life for some other reason. This work focuses on those who are terminally ill simply due to word count restrictions;, and indeed it may be that further research into how the arguments made throughout apply more generally would be beneficial. At this point however, and as Heywood observes, it is simply argued that there is a clear recognition by not only the ECtHR but also theand UK judiciary that autonomy is an important principle, although there does seem to remain some doubt about how far that autonomy should be protected.

In any event, it appears difficult to reconcile this apparent recognition of there being at least some respect for the value of individual autonomy with the decision in Nicklinson, in the Court of Appeal (CA). In that case, Lord Dyson held that s.1 of the Suicide Act should not be interpreted as constituting a ‘right to commit suicide’ but simply ‘immunity’ from liability where a person takes such action, such that there is no apparent contradiction in a law which criminalises not the action but another action in support of it. This would neither seem to incorporate the respect for individual autonomy discussed above, or indeednor the argument earlier in Pretty that a blanket statement that immunity from prosecution would be granted was unjustifiable. It is true that more clarity was provided in the Supreme Court (SC) and this will be considered shortlypresently; here however, it is simply argued that Lord Dyson’s comments reflect an on-going confusion about how the law on assisted suicide should be appropriately formulated., This is difficult to accept and as it has been argued that autonomy should be the basis of the law, albeit with safeguards to protect the vulnerable built in, this cannot be accepted.

139. Pretty v UK, [62].
140. Purdy v DPP, [68], (Baroness Hale).
141. ibid.
142. ibid, [66]-[68].
143. R Heywood, ‘R(On the Application of Purdy) v DPP: Clarification on Assisted Suicide’ (2010) 126 (Jan) LQR 5-8, 5-6.
144. R (On the Application of Nicklinson) v Ministry of Justice (CA) [2013] EWCA Civ 961 (Nicklinson CA).
145. ibid, [55], (Lord Dyson).
146. ibid.
147. Pretty, [65], (Lord Steyn).
148. Under the Human Rights Act 1998 (HRA), s.4(2)
149. Nicklinson, [6], (Lord Neuberger).
Lord Neuberger argued that whilst there was a justifiable need to ensure that the law is drafted in such a way as to protect those in society who are ‘vulnerable’, and indeed this has been shown above, the key moral issue is whether, in respecting the autonomy of a person to end their life, it may be considered ‘morally corrupting’ if another person is involved in such a way as to physically end the life of that person. His Lordship went on however to argue that there is a key distinction, both as a matter of law and a matter of morality, between a person taking the physical action necessary to terminate life, and merely assisting another person to exercise their own autonomy. In this regard, he said that the issue can be determined by asking whether the ‘act which immediately causes the death is that of a third party [which] may be the wrong side of the line, [or] if the final act is of the person himself’ in the exercise of autonomy, which would seem to be morally acceptable.

The gaps in the judicial approach

incompatible, Nicklinson may be considered as reflecting a shift away from support for the current law in the earlier cases. This would certainly seem to be true, and indeed it is argued that there seems to be a marked difference again, between the SC justices’ recognition of the nuances of the issues, and the statements of the judiciary in cases such as Pretty and Purdy considered above either
150. ibid, [111].
151. ibid.
152. ibid, [113].
153. ibid, [91].
154. ibid, [92].
155. ibid, [94].
156. ibid, [95].
157. ibid, [312], (Lady Hale).
158. ibid, [314].
159. ibid, [230], (Lord Sumption).
160. ibid.
161. N Papadopoulou, ‘From Pretty to Nicklinson: Changing Attitudes to Assisted Dying’ (2017) 3 EHRLR 298-307, 305.
The SC decision might may have gone further in terms of recognising the complexity of the issues than cases assessed earlier in the work, but it is far from being a substantial shift in attitude towards improving the position in the way Papadopoulou would seem to suggest above. In any event, one would suggest that given that the very purpose of the declaration of incompatibility in s.4(2) of the HRA is to ensure compatibility with human rights, this necessarily requires an engagement with moral judgements and the balance between competing moral questions, and that this is inherent
162. Stark, ‘Necessity and Policy in R (Nicklinson and Others) v Ministry of Justice’ (2014) 18(1) Edin LR 104-109, 105.
163. ‘Assisted Dying: General Prohibition on Assisted Suicide – Absence of Judicially Approved Procedure for Voluntary Euthanasia’ (2015) 5 EHRLR 546-551, 549.
164. E Wicks, ‘Commentary: ‘Nicklinson and Lamb v UK: Strasbourg Fails to Assist on Assisted Dying in the UK’ (2016) 24(4) MLR 634-640, 636.
165. Nicklinson and Lamb v UK [2015] ECHR 783, [86].
166. C Chandrachund, ‘Reconfiguring the Discourse on Political Responses to Declarations of Incompatibility’ (2014) Oct PL 614-641, 624.
167. H Delany and C Murphy, ‘Towards Common Principles Relating to the Protection of Privacy Rights? An Analysis of Recent Developments in England and France Before the European Court of Human Rights’ (2007) 5 EHRLR 5 568-582, passim.
168. Campbell v MGN [2004] UKHL 22.
169. ibid, [106], (Lord Hope).
170. Nicklinson, [100], (Lord Neuberger).
As a final point here, Lord Mance held that the court had not been presented with ‘primary evidence’ to enable the justices to reach a conclusion on how the balance between autonomy and protecting the vulnerable could be achieved through reform, and that this could only be done through the ‘examination of first hand evidence accompanied by cross-examination’. Even if this has merit, it does not seem that the courts have been willing to engage when applicants have sought to do this, thus suggesting further issues with securing appropriate reform. For example, in 2017, in Conway, a case in which a proposed reform scheme was suggested to deal with the issues in the law, it was held in by the CA that whilst a distinction could be drawn between cases such as Nicklinson where the patient who wished to die had a long-term condition, and the applicant in Conway who was terminally ill, and in this regard the court held that it was not bound by the earlier decision, the issue remained that assisted suicide was unlawful and that Parliament had rejected an attempt through the Assisted Dying Bill 2014 to change the law in a similar way to that proposed in the case. The court therefore considered that Parliament was best placed to consider the issue and refused to find that the law in England and Wales is incompatible with Article 8(2). It is submitted that there is nothing necessarily wrong with the outcome of the decision in Nicklinson. Rather, it is argued that the court simply passed the buck to Parliament, who have already shown themselves to be unlikely to take it up. Whilst it is not the role of the court to legislate simply because Parliament has chosen not to do so, given the court’s recognition in Nicklinson that the law may be incompatible with the Convention, it does seem makes it problematic at least in terms of the content of the law which has been recognised as a problem, for the courts to continue to fail to deal with the issue. The decision of the SC to refuse leave to appeal is therefore difficult to accept as correct. It is true that the CA did consider some of the issues in detail:, looking for example at the possible mechanisms for safeguarding the vulnerable and preventing persons from being coerced into ending their lives; whilst and recognising that respecting there is athe possible right of autonomous individuals to make choices in respect of the end of their own lives, which it noted was now ‘common ground’., but However, it failed to move the law on in terms of reform in respect of facilitating doctor assisted suicide in any meaningful way, and as such the problems with the law do remain. The matter was also considered recently in T in which Irwin LJ, in an application for judicial review was made pursuant to seeking a declaration of incompatibility of s.2 of the Suicide Act with Article 8 of the Convention., Irwin LJ dismissed a request for cross-examination of an expert witness on the basis ground that even without reference to Conway, the matter could be dealt with simply through consideration of reports., and thusThis did not fulfil Lord Mance’s criteria for a potential examination in a way which could lead to a declaration. Irwin LJ He did however, go on to note that there was similarity between the claimant’s application and that of Conway’s, and that this gave
171. ibid, [175], (Lord Mance).
172. ibid, [182].
173. F Cranmer, ‘Conway v Secretary of State for Justice: Terminal Illness: Case Comment’ (2017) 179 law & Justice 249, 249.
174. Conway, [134], (Approved Judgment).
175. ibid, [181].
176. ibid, [208].
177. R (Conway) v The Secretary of State for Justice [2018] Leave to Appeal available at https://www.supremecourt.uk/docs/r-on-the-application-of-conway-v-secretary-of-state-for-justice-court-order.pdf accessed 9/6/2020.
178. Conway, [162], (Approved Judgment).
179. ibid, [15].
180. T, [12], (Irwin LJ).
181. ibid, [18].
182. ibid, [12].

further weight to the need to dismiss the application. One does not seek to contend that the judge was incorrect in T; however, what Conway and T taken together do seem to illustrate is that the courts appear to be, as Ruck Keene argues, ‘unwilling’ to reach a decision in respect of how the law should respect autonomy and protect individuals, thus leaving the law failing to protect autonomy, shown earlier in the chapter to be necessary. Indeed, one might be inclined towards a conclusion that, if neither the courts nor the legislature will evaluate the issue, whether there should be reform of the law to support physician assisted suicide or even simply to mitigate the difficulties with the current law as identified in the previous chapter is simply an academic question. This does not mean that reform is not needed, and indeed what this should look like will now be considered, but rather that, in reality, such reform might not be forthcoming.

Summary

It is clear that the law must ensure a balance between respecting autonomy and ensuring that the vulnerable are protected: whilst the latter is certainly important, sanctity of life arguments are more difficult to accept as they involve subjective moral assessments. Rather, it is argued that autonomy should be protected with safeguards to ensure that the vulnerable are protected. The judiciary have been unable to adequately deal with the issue, and as Parliament have already been shown to have failed to reform the law, it is argued that the issue has become pressing although perhaps unlikely to be addressed in reality.
183. ibid, [22].
184. D Ruck Keene, ‘The Right to Die – Who Decides?’ (2018) UK Human Rights Blog available at https://ukhumanrightsblog.com/2018/07/09/the-right-to-die-who-decides/ accessed 9/6/2020.

Introduction

Again, this chapter proceeds as outlined in the introduction.

The Role of the Doctor and the Autonomy of the Patient

Having The previous chapters have shown that the law is unsatisfactory in that it fails to respect the autonomy of the terminally ill patient who makes a decision to end their life and thateven though the concerns about the exploitation of the vulnerable might be adequately addressed through safeguards built into the law., Iit is now prudent to consider the purpose of medical practice and whether assisted suicide may be incompatible with the principle of healing and whether there may be any impact on the doctor-patient relationship should the law be changed. It is suggested that it is important to consider these issues distinctly because they relate to practice rather than the law per se, and thus addressing through safeguards might be more difficult. It was argued above that questions regarding the impact on individual doctor autonomy could be addressed by simply drawing a distinction between a right to demand treatment and a right to ask for assistance. It is noted however, and this point was made in the Approved Judgment in Conway, that if some physicians refused to assist with suicide, then ‘doctor shopping’ may result where patients simply choose a doctor who may acquiesce with their request. This argument is also made by Baroness Finlay, an opponent of amending the law to support doctor assisted suicide, who suggests that even if the autonomy of the doctor is respected, the result would be that some physicians willing to support patients to end their lives would be prescribing for patients they do not know and that this would fundamentally change the nature of the doctor-patient relationship. At first glance, this argument seems problematic; it has already been shown that the doctor-patient relationship is founded on autonomy and thus seeking a doctor who supports a patient does not itself seem problematic and, in any case, medical practice is no longer often conducted in a way whereby the patient forms a close bond with a doctor that they know very well. Studies may have shown that where a bond can be formed between the doctor and the patient this is beneficial, but it does not mean that it is the reality that such a bond exists. Perhaps a more valid concern, and again this point was made in Conway, is that if there was significant doctor-shopping, then the real issue would be that doctors may struggle to assess whether patients had truly made a voluntary decision to end their lives. It is true that because of the permanent nature of the decision, ensuring that a decision was autonomous would perhaps take on greater importance than in other contexts., but itIt is submitted that what would may be required here would is simply be a mechanism of assessing voluntariness where a doctor did not know the patient, and that this must already apply where doctors see patients they do not know, rather than necessarily requiring a continued failure to respect autonomy.

185. Conway, [162]
186. I Finlay, ‘What if Assisted Dying Were Legalised?’ (No Date Available) The King’s Fund available at https://www.kingsfund.org.uk/reports/thenhsif/what-if-assisted-dying-legalised/ accessed 10/6/2020.
187. C Gerada, ‘Patients Don’t See the Same GP Anymore – And that Has to Change’ (2018) The Guardian GP Opinion available at https://www.theguardian.com/commentisfree/2018/may/10/patients-same-gp-nhs
188. DJP Gray, K Sidaway-Lee, E White, A Thorne and PH Evans, ‘Continuity of Care with Doctors – A Matter of Life and Death? A Systematic Review of Continuity of Care and Mortality’ [2018] BMJ available at https://bmjopen.bmj.com/content/8/6/e021161 accessed 10/6/2020.
189. Conway, [162], (The Approved Judgment).
compatibility between assisted suicide and the role of the doctor, safeguards could be built into the law., and tTherefore, it is argued that it is this which is needed rather than refusing to change the law simply because some practitioners may object to this. It may be the case that medical professionals have questioned whether helping someone to die should be part of patient care, but it cannot be accepted that this is really something to be determined from within the profession, as opposed to in terms of how best the choices of autonomous patients can be balanced against the protection of the vulnerable, including where relevant, practitioners who are unsure about the ethics of their own choices. In any event, and as Delamothe, Snow and Godlee, writing for the BMJ have asserted, by respecting the right of the individual to end their life in a way which respects their choosing as closely as possible, end of life care outcomes may be best achieved., such that eEven if there are doubts about whether it is appropriate from a practitioner perspective for doctors to engage in bringing the life of a patient to an end, thus not healing, it is equally possible for the opposite view to be taken particularly where the patient is terminally ill and their life would have ended regardless. Here, Fontalis and his colleagues observe that the relationship between the physician and their patient is fundamentally ‘based on trust’ and non-maleficence, and that it is possible that in facilitating assisted dying this trust may be undermined if the patient feels that the doctor wishes the patient to choose death as an option for end of life care. One may argue of course that by respecting the desire of the terminally ill patient to die in the manner of their own choosing, rather than through the course of their illness this trust may be supported, but it must be recognised that safeguards here may not be easily introduced as the issue may be one of patient perception rather than coercion on the part of the practitioner. As Herring observes, it may be somewhat ‘frightening’ for patients with a terminal illness to wonder whether their doctor is thinking that the best outcome might be assisted suicide, but again it is submitted that failing to respect the autonomy of any individual simply on the basis that some patients might think something about their doctor’s views is entirely unsupportable.

Summary

Whilst concerns about the doctor-patient relationship may be valid, they cannot justify refusing to respect patient autonomy. and aAlthough issues relating to perception may be more difficult to address than through legal safeguards, and thus requiringe research beyond the scope of this dissertation, they again do not justify a shift away from the conclusion that the law on assisted suicide requires reform.

190. ibid, [151].
191. ibid, [161].
192. ‘Fear of Assisted Dying: Could it Lead to Euthanasia on Demand or Worsen Access to Palliative Care?’ (2019) BMJ available at https://www.bmj.com/content/364/bmj.l852/rr-1 accessed 10/6/2020.
193. ibid.
194. T Delamothe, R Snow and F Godlee, ‘Why the Assisted Dying Bill Should Become Law in England and Wales’ [2014] BMJ available at https://www.bmj.com/content/349/bmj.g4349.full accessed 9/6/2020.
195. B Steinbock, ‘The Case for Physician Assisted Suicide: Not (Yet) Proven’ [2005] BMJ available at https://jme.bmj.com/content/31/4/235 accessed 4/6/2020.
196. A Fontalis, A Prousali and K Kulkarni, ‘Euthanasia and Assisted Dying: What is the Current Position and What are the Key Arguments Informing the Debate?’ (2018) 111(11) JR Soc Med 407-413, online edition, no page numbers available.
197. J Herring, Medical Law and Ethics (Sixth Edition, Oxford University Press 2015).

Synthesis of Arguments and Proposals: Mitigating the Concerns

It has been argued throughout this work that autonomy should be respected where autonomous individuals with terminal illnesses seek the assistance of physicians to end their life.; Wwhilst autonomy is not a principle which should necessarily always be paramount, the current law and the DPP policy fail to provide any respect for the principle whatsoever or indeed to provide certainty on when prosecutions will be brought. Given that physicians were not envisaged as causing the type of harm that the law sought to protect against, this seems to add a further dimension to the problem. The case law has gone some way to recognising that the law is problematic but neither the judiciary nor Parliament have addressed the problem., and itIt is argued that reform is an urgent and pressing need, although again the continued failure to act might suggest that reform will not be forthcoming. It is true of course that recognising an autonomous right to seek assistance, and it is not suggested that every doctor should be required to give assistance, must be balanced with a need to protect the vulnerable and it is argued that the formulation of the Assisted Dying Bill 2019-2021 achieves this, in requiring evidence of voluntariness. Such voluntariness, it is argued, could be assessed in line with any approach under current medical practice, and indeed whilst it may be true that research might be needed into the extent to which perceptions of the change to the nature of the doctor-patient relationship might be problematic, the fact that the law currently does not respect autonomy at all is a greater issue. Indeed, given that it has been shown that permitting assisted suicide might improve end of life outcomes, it is argued that it is not necessary to focus too greatly on this relationship in the move towards reform.

Limitations, Suggestions for Further Research and Final Conclusions

The work has focused only on cases of physician assisted suicide. and whilstAlthough the issues underpinning the practice, in respect for example of autonomy and the potential for the abuse of the vulnerable may apply regardless of the capacity in which the assister acts, it does seem that a distinction can be drawn in the sense that the practitioner seems unlikely to be motivated by gain in the same way as family members or friends of the person who wishes to end their life might be. Similarly, the discussion has been limited to cases where the patient is terminally ill; this has meant that there has been no discussion on other relevant issues, for example, of whether autonomy should be less respected where a patient was healthy or had a long term health condition. To conduct such research within the current piece, however, would have raised new issues and thus undermined the extent to which detailed examination of all those issues could have been undertaken within the work. The current law on physician assisted suicide for terminally ill patients is unjustified and requires reform. The law does not meet its rationale in that it holds physicians liable where they are not likely to exploit the vulnerable in the way the law envisages., and theMoreover, the DPP policy is confusing. It isFinally, it is unacceptable to fail to respect the autonomy of any patient simply due to

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198. Assisted Dying Bill 2019-2012, s.1(2)(a)

the potential for abuse, particularly since safeguards to protect the vulnerable and improve end of life outcomes may be built into the law.

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