Law on Assisted Suicide; English Legal System

English Legal System and Skills Coursework assignment

Q: Explain the law on assisted suicide in England and Wales. In light of the above statement, discuss whether legislation should be introduced to allow terminally ill patients to end their lives.

In 1939, Adolf Hitler initiated a decree which allowed physicians to grant a “mercy death” to “patients considered incurable.”[1] 2 years on, in 1941, some over 70,000 deaths had occurred from the “mercy killing”. The example is, however, an extreme form of the repercussions that could result from legalizing assisted suicide and is, in many respects, one that was politically motivated. Nonetheless, an extreme form of an example, such as the one above, is perhaps a trigger, for any reasonable person, to beg the question “should terminally ill patients in the UK be allowed be allowed to end their lives?”.  The issue, however, is not as straightforward as the question might seem to make it, and as we will see, has undergone significant legal shifts in the past decades. This paper attempts to analyse the benefits and harms of legalizing assisted suicide.

For the purposes of this essay, we assume two opposing burdens of proof. The first, that the current status quo on the law of assisted suicide (henceforth referred to as ‘AS’) is desirable and a shift from that would be harmful for society.  Alternatively, the second burden is that the current law on AS is inefficient and requires change, and that the legalization of AS would attribute benefit to society. Both the cases for and against legalizing suicide will be explored below, and by the end, one of the two burdens will be proved, which would hopefully provide guidance on whether to legalize assisted suicide or not.

Before we begin the discussion, a few definitions are in order. Thus, for the purposes of this essay we would define “assisted suicide” and certain terms related to it, which are often used interchangeably with it such as “euthanasia” and “mercy killing”. Henceforth, we would define assisted suicide in the context of s.2 of the Suicide Act 1961 i.e. “aiding, abetting, counselling or procuring the suicide of another, or an attempt by another to commit suicide”. Similarly, euthanasia is defined as ‘a gentle and easy death, the bringing about of this, especially in the case of incurable and painful disease’.[2] Furthermore, for a clearer understanding, we would further divide euthanasia into the following two areas:
“1) ‘Voluntary active euthanasia’ (VAE), i.e. ‘a doctor deliberately acts to kill a patient at [their] request’, punishable as murder in English Common Law.

2) ‘Passive euthanasia’: which some commentators use to describe the withholding or withdrawing of life-prolonging medical treatment, which is considered legal in English Common Law.”[3]

Before we move on to discussing the benefits and harms of legalizing AS and/or euthanasia, it would be useful to briefly lay out the general law on the subject of AS and euthanasia. This will be done through a historical analysis on the two key areas of law that relate to the subject i.e. legislation and the common law. We will first analyse how, in the past decades, there have been attempts to change the law through legislation.

The issue of AS has actually been an issue for the ages, wherein it dates back to as early as 5 BC where the Hippocratic Oath prohibited doctors from giving ‘a deadly drug to anybody’. Perhaps the first ever attempt to formally legalize the AS was in 1936 when Lord Ponsonby initiated the Voluntary Euthanasia Bill[4]. This bill was, however, rejected on its second reading. Following this, in 1961, the suicide act abrogated the offence of committing suicide, but maintained its position on criminalizing assisted suicide. In 1969, another attempt was made to change the law when Lord Raglan introduced a “Bill to legalize voluntary euthanasia”[5]. This, however, suffered the same fate as the previous attempt; it failed at the second reading. This was arguably due to poor drafting and the erroneous method of creating a simplified procedure with minimal formality”[6].

Similarly, in 1990, Ronald Boyes introduced the voluntary euthanasia bill[7], which “intended to permit voluntary euthanasia subject to certain conditions”[8], but this was once again rejected at its second reading due to “lack of parliamentary time”. Moreover, the bill was followed by Lord Joffe’s “Patient (Assisted Dying) Bill”[9]. Once again, however, the bill only proceeded to a second reading. Following this, in 2004, Lord Joffe’s efforts led to the introduction of the “Terminally ill bill”[10].The bill allowed ‘a competent adult, who is suffering unbearably as a result of a terminal illness, to receive medical help to die’[11]. Lauren Coleman believes that this consistency “shows that there is increasing willingness to devote time to investigations in this area”[12].

 One of the latest developments has been the introduction of the Assisted Dying Bill 2013[13]. “The Bill is designed to ‘Enable competent adults who are terminally ill to be provided at their request with specified assistance to end their own life; and for connected purposes”.[14] The bill is still in its early stages and its second reading is yet to happen[15]. The latest significant development is section 59 of the “Coroners and Justice Act 2010”, which changed the law from “aid, abet, counsel or procure another’s suicide” to simply “encourage and assist” suicide. From the above analysis, one thing that may be implied is the consistency with which bills are presented and debated upon. This at least shows that there is a certain level of commitment towards the issue.

The second analysis is that of case law.  Unlike legislation, this area has seen many shifts where several factors such as “necessity” and “best interests” have been taken into account. The first of the important cases were Airedale NHS trust v Bland[16]. The issue in the case was whether it was possible to discontinue all life sustaining treatment from a patient who is unable to give informed consent. The courts held that this would be allowed if the discontinuation is in the best interests of the patient. The rationale behind this is that doctors are never under a duty to treat their patients in order to keep them alive if the treatment is not in the best interests of the patient ( in other words, it is clear that the treatment will bear no fruit).

The second case, Re A (Children) (Conjoined Twins: Surgical Separation)[17], raised an interesting situation. Two main issues arose out of this. First, was the operation in the best interests of the twins; and second, the necessity of the operation. On the first, it was held that it was in the interests of both twins. Even though Mary (the weaker twin) would have died, the fact that Mary was “self-designated for an early death”[18], “coupled with the uncertainty of the extent of her suffering led to the conclusion that to prolong her life would not be in her best interests and so the separation could be justified”[19].  On the second, the courts held that although the operation would bring about the death of Mary, it was “neither the purpose, nor the intention”[20] of it and was justified on the grounds of necessity. The decision of the case suggests that the “common law is developing in a way that offers flexibility but at the expense of clear precedent, and certainty”[21].

The next case, R (pretty ) v DPP[22], was  the “first occasion on which the House of Lords has been asked to consider the question of assisted suicide by a terminally ill individual”[23]. In the case, Pretty needed her husband’s assistance to end her life. She sought a promise from the DPP that he would not be prosecuted. The court, however, held that the DPP had not the power to decide upon a crime that had not yet been committed. Interestingly enough, however, in the case of R (Pudry) v DPP[24], which had almost the same facts as Pretty v DPP;  the courts actually ordered the DPP to prepare a policy guideline[25] that sets out the situation when a person would be prosecuted for AS under s.2 of the Suicide Act 1961. Coleman believes that the guidelines were a good step towards legalizing AS and show a commitment by the law towards taking a step towards the right direction[26]. The most recent case on the issue is R (Nicklinson) v Ministry of Justice[27]. The most important point that came out of the case was the Supreme Court’s statement that it expected “Parliament to debate legislation ‘in the near future’’[28]. This shows that the law is taking a more serious approach towards the issue now than it ever did before.

Let us now move on to discuss the possible benefits and harms of legalizing AS. We will first be looking at the harms. One of the arguments against legalizing AS could be the fact that science has now progressed on a level where the chances for a terminally ill person suffering intolerably are quite low. Lydia Smith argues that if a person is “given the right care in the correct environment, there should be no reason why they are unable to have a dignified, natural death”[29]. In addition, it sets a bad precedent for society. It could pose a danger to the doctor-patient relationship whereby a doctor would not feel too obligated to preserve human life since he has an easier alternative[30]. In an advanced society such as today, there should be more attention towards developing methods to reduce suffering, rather than going for the easy way out by legalizing AS.

A further argument could be the fact that many older patients would feel themselves as a burden on their caregivers and would wish to end their lives in order to remove that burden. Indeed, according to the Washington State Department of Health 2014 Death with Dignity Act Report[31], 59% of those who died in Washington from AS, identified it as being due to being a burden on their families. This means that if AS were to be legalized, wrongful deaths may occur. Lives that could have been saved would be lost because of reasons such as being a “burden”.

A very eccentric argument is one put forward by Marilyn Golden and Tyler Zoanni[32], is the “Fear, bias, and prejudice against disability”[33]. Golden argues that the legalization of AS was supposed to be to relieve intolerable pain, yet majority of the people in Oregon wanted to end their lives because of factors associated with disability, which “includes loss of dignity and loss of bodily functions”[34].  This reinforces the previous argument that allowing AS would truly result in wrongful deaths. Thus, it may be argued that the flexibility that the Common law has in allowing some cases to proceed with AS, and has disallowed some is a much better option than completely legalizing it. After all, isn’t this how the law works? There’s always a general rule, and then exceptions to it. Perhaps maintaining this standard would be in the UK’s best interests. We need to ask the question, if AS were to be legalized, can we afford something as even remotely as close to the example in the introduction? By no means! Therefore, this side of the argument opposes any change to the status quo.

The argument against does fine on its part, but is flexibility over certainty really worthwhile for the law? G Williams[35] argues that despite the DPP’s guidelines, the UK’s legal system has been put in a position of “disarray and uncertainty”[36]. He argues that although there is flexibility and openness, the issue is not backed by proper legislative authority which opens the law to loopholes. Williams argues that it is not enough for the DPP to simply set out guidelines; rather, the issue requires “parliamentary engagement and consultation”[37]. Thus, the argument here is that although not altering the status quo on AS has its benefit of flexibility, it is at the expense of certainty, which is one that is truly unaffordable.

Another argument in favor of legalizing AS is the fact that it’s what the people want! Support for it has been growing rapidly over the past years. Indeed, 73% of people support a change in the law on AS[38]. Thus, if we truly live in a democratic society, then this demand by the people needs to be honored. The politicians in the parliament are there because the people elected them, thus, if all theories of democracy are correct, then it makes sense for them to do that what society demands of them.

Another argument in favor of legalizing AS goes into a principle debate with the concept of Vitalism. Vitalism is the belief that “human life is an absolute moral value …. And should be preserved at all costs”[39].  Coleman argues that this principle holds little merit when we consider the fact in certain cases these ‘human lives’ are not always “worth living”[40]. Coleman quotes Aristotle when he says “death would be a misfortune only when it deprived one of a life that is worth living”. This engages with the Vitalism argument on a principle level. It challenges the notion of preserving every type of life. It questions whether a life not worth living is truly what is beneficial for that person.

Perhaps one of the most important arguments is one that is actually related to the statement in the question i.e. “Self-determination” and “refusal of life-saving treatment”. The statement argues that in accordance with the principle of self-determination, any person should have the right to refuse treatment that could save his life. If the statement were to be interpreted in a broader sense, then it basically suggests that a patient should have all authority to choose whether to end his life or not.  This is certainly true. Self-determination dictates that every person has control over their life. Thus, it makes no sense to have a paternalistic approach towards patients that actually wish to end their lives. We live in a society that is governed on the principles of laissez-faire. People are their own best judges. Thus, it is imperative to maintain the right of self-determination, and allow people to make informed choices themselves.

In conclusion, it is felt that among the two burdens identified, the second burden was significantly better proved. This is because the argument takes some of the most important factors into account. Not only does it prove what the people want, but it also engages with the case against decriminalization on a deeper principal level. In addition, it is this argument that preserves the right to self-determination. Indeed, this is a sovereign principle in law and anything that threatens it is completely against the very principles on which English society is based on. Obviously, a perfect world is everyone’s ideal, but looking at things practically, a Utopian society is almost impossible; at best what we can do is evaluate what the opportunity cost of doing a certain action would be; and judging from the arguments above, we would thus conclude that the opportunity cost of decriminalizing AS is far lesser than having to maintain the status quo.