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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.
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.
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:
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;
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
The aims of the chapter have been outlined earlier and thus will not be repeated here.
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
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
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.
Impetus for Reform: Proposals to DateThe 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
SummaryThe 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.
IntroductionArguments 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
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
Reconciling autonomy for the individual with the protection of the vulnerable
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.
The gaps in the judicial approachincompatible, 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
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.
SummaryIt 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.
IntroductionAgain, 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.
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.
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
Table of UK Legislation
Coroners and Justice Act 2009
Criminal Law Act 1967.
Human Rights Act 1998 (HRA).
Suicide Act 1961.
Table of Proposed Legislation
Assisted Dying Bill 2013-2014.
Assisted Dying Bill 2016-2017
Assisted Dying Bill 2019-2021.
Assisted Dying for the Terminally Ill Bill of 2004-2006.
Patient (Assisted Dying) Bill 2003
Table of UK Cases
Campbell v MGN  UKHL 22.
R (On the Application of AM) v Director of Public Prosecutions  UKSC 38.
R (On the Application of Conway) v The Secretary of State for Justice  EWCA 1431.
R (Conway) v The Secretary of State for Justice  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.
R (On the Application of Nicklinson) v Ministry of Justice (CA)  EWCA Civ 961.
R (On the Application of Nicklinson) v Ministry of Justice  UKSC 38.
R (On the Application of Pretty) v Director of Public Prosecutions  UKHL 61.
R (On the Application of Purdy) v Director of Public Prosecutions  UKHL 45.
R (On the Application of T) v Ministry of Justice  EWHC 2615.
Table of ECtHR Cases
Nicklinson and Lamb v UK  ECHR 783.
Pretty v United Kingdom (2002) 35 EHRR 1.
Table of European Conventions
European Convention on Human Rights 1950 (ECHR).
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