Finding a Compromise: A Criminal Law Defence for Regulating Medical Assistance in Dying

Abstract

The legal discourse surrounding euthanasia and assisted suicide continues to evolve, with a growing demand for comprehensive regulation. However, in England and Wales, assistance in dying remains prohibited. This article draws on criminal law theory to propose a compromising approach to cases of medical assistance in dying by creating a new criminal law defence. This defence will be available to a physician assisting a patient to die on the conditions of autonomy and beneficence. If this defence is successful, it will completely remove the physician's criminal liability.

Introduction

Assistance in dying is usually subdivided into two categories. ‘Euthanasia’ refers to a physician actively and intentionally terminating a patient's life, usually by administering lethal drugs, after the patient's request. ¹ ‘Assisted suicide’ refers to the action taken to assist, aid, help, encourage or facilitate the suicide of another person, where the final act causing death is taken by the person wanting to die rather than the agent assisting. ² In English law, actively terminating another's life, even at that person's competent request, is charged with murder, facing the most severe sentence, mandatory life imprisonment. ³ Also, assisting or encouraging the suicide of another person is prohibited by the Suicide Act of 1961 and carries a maximum sentence of 14 years imprisonment. However, ‘no proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions’. ⁴

Assisted death is a pressing issue, with an increasing number of jurisdictions worldwide seeking regulation under specific conditions. For example, in the Netherlands, the first country to legalise euthanasia and assisted suicide, physicians can assist patients in dying under a set of ‘due care’ criteria. ⁵ Also, Canada was the first common law country to legalise medical assistance in dying under specific conditions. ⁶ Nonetheless, despite the growing developments behind this movement and many past Bills proposing some form of legalisation, England and Wales have refrained from allowing assistance in dying. ⁷

This article reviews the creation of a new criminal law defence specifically for cases of medical assistance in death. This discussion will assess important insights of proponents and opponents of assistance in dying and question their legitimacy. Leading on from this and based on the argument that assisted death is pro tanto wrong, this article will examine whether there is a potential legal compromise for this complex issue, which will not verge between legality and illegality. In addressing this question, this article will first explain the two main arguments of advocates of assisted death: autonomy and beneficence. Nonetheless, there are also reasons not to allow assisted dying, such as the intrinsic value of life, concerns about a potential slippery slope, and the danger of pressuring vulnerable individuals to choose this option. This article will argue that such reasons are somewhat ‘defeated’ by having a request to die, which is also in the patient's best interest due to experiencing intense suffering. Such conditions support a more permissive approach to assisted death. Robust safeguards can be established to prevent potential pressure on vulnerable individuals and a slippery slope.

Based on the argument that assisted death is a pro tanto wrong, even on the conditions of autonomy and beneficence, this article will propose the creation of a new criminal law defence. This new defence will justify physicians in assisting patients to die. The physician will admit responsibility for their actions but block their transition from responsibility to liability in light of the unique circumstances. Even though the pro tanto wrong of assisted death occurs, it will be justified by the justifying circumstances stopping the patient from experiencing further suffering and upholding autonomy. It will be proposed that if this defence is successful, it should completely remove criminal liability for the physician's actions. The physician assisting a patient in dying is different from many other defendants in criminal law as they do not act because of anger, loss of control, or fear. Physicians are unlikely to represent a danger to the public in these cases, and there is no benefit in punishing them.

Advocating for Assisted Death: Autonomy and Beneficence

While England and Wales have refrained from legalising assistance in dying, the position on assisted death gradually appears to have softened, particularly for cases of assisted suicide. In 2009, Debbie Purdy was diagnosed with Multiple Sclerosis and anticipated that she might want to go to Switzerland to have assisted suicide and wanted her husband to accompany her. Thus, she sought clarification from the Director of Public Prosecutions (DPP) of his policy on prosecuting assisted suicides. ⁸ This case resulted in the DPP creating an offence-specific policy outlining when prosecutions will occur, which includes 22 public interest factors in favour of and against prosecution. ⁹

Nonetheless, assistance in dying remains a contentious topic for its supporters and opponents. ¹⁰ There are two primary ethical arguments that proponents of legalising assistance in dying use. The first argument is rooted in the principle of beneficence, which emphasises the moral duty of medical practitioners to act in the patient's best interests. ¹¹ Following this argument, assisting in dying can be in the patient's best interests because it ends extreme suffering. ¹² Central to this argument is the notion that when an individual experiences unbearable suffering and their life falls below a minimum quality threshold due to illness, injury, or disability, its value diminishes. There are no options left for enjoying a ‘good’ quality of life, and continuing life may provide no real benefits. ¹³ Therefore, proponents of assisted death argue that while life is valuable, avoiding intolerable suffering holds even greater significance, justifying assisted death. ¹⁴

The second argument used by proponents of assistance in dying emphasises the importance of respecting autonomy. This argument grants individuals significant control over their lives, including the right to make autonomous decisions about their death, given they are competent, fully informed, and act voluntarily. ¹⁵ The significance of autonomy was highlighted in the case of Pretty. In 2001, the DPP refused to grant immunity to Pretty's husband for assisting her in ending her life. ¹⁶ This case was before the challenge of Purdy and the publication of the DPP's prosecutorial policy on assisted suicides. Pretty appealed to the European Court of Human Rights (ECtHR), citing violations of her right to life under Article 2 and her right to a private life under Article 8 of the European Convention on Human Rights (ECHR). ¹⁷ Although the ECtHR rejected her argument under Article 2, it emphasised that the essence of ECHR is respecting human dignity. ¹⁸ Pretty's wish to avoid suffering and degradation as her condition worsened engaged her autonomy under Article 8. ¹⁹ Nonetheless, the court recognised that the state could limit autonomy to protect public health and security. ²⁰

Opponents of assisted death often emphasise that assisted dying should not be allowed, even on the conditions of autonomy and beneficence, because life has an intrinsic value that should not be intentionally ended. ²¹ Such notions about the importance of life as an intrinsic value often are closely linked to religious beliefs of understanding life as God's creation, positing that taking it away infringes on the gift bestowed by God. ²² The importance of this argument was highlighted in the case of Tony Nicklinson, who was paralysed after a stroke, and the High Court refused to allow a declaration that the defence of necessity would be available if a physician assisted him in dying. ²³ The Court of Appeal later confirmed this decision about the non-availability of the defence of necessity. ²⁴ Notably, the High Court asserted that no rights, including autonomy, surpass the importance of life. ²⁵ This decision followed the case of Dudley and Stephens, which established that necessity could not be used in cases of murder and thus could not be used for shipwrecked sailors who killed and ate a cabin boy to save themselves from starvation. ²⁶

Nonetheless, proponents of assisted dying challenge this objection about the importance of life based on the distinction between acts and medical omissions. Proponents of assisted death posit that this distinction is flawed in its definitions and partly in its moral standing. ²⁷ For example, while physicians are prohibited from actively killing patients, they can withdraw or withhold life-sustaining treatment from incompetent patients in medical omissions. ²⁸ In Aintree, the widow of an incompetent man who was seriously ill and placed on a ventilator appealed against a Court of Appeal's decision that it was in his best interests to have life-sustaining treatment withheld. ²⁹ The Supreme Court dismissed the appeal and affirmed that decision-makers, when considering the patient's best interests, must look at the nature of the medical treatment along with what the patient's attitude would likely be. ³⁰

This distinction is based on the justification that physicians allow patients to die in omissions rather than taking active measures, intending to prevent burdensome treatment. ³¹ Proponents of assisted death contend that omissions are similar to actions, as when treatment is removed, this causes the patient's death from dehydration or starvation. ³² Thus, active killing occurs, making ‘intention’ too narrowly defined in end-of-life practices. Proponents of assisted death also question the argument that omissions are morally different from active killing because they are done for humane reasons, such as to avoid burdensome treatment. This is because similar considerations might exist in assisted death. Thus, while there is some validity in differentiating between acts and omissions, the argument on the intrinsic value of life supporting the legal stance against assistance in dying may not be as resolute as it appears.

The proponents’ arguments of autonomy and beneficence can form a combined system of assistance in dying. ³³ This approach considers both principles to be equally important and interdependent. Allowing assisted death requires a self-regarding request from the patient while ensuring it is genuinely in the patient's best interests. This approach of a combined system of autonomy and beneficence was the basis for permitting assistance for dying in jurisdictions such as Canada and the Netherlands. In the Netherlands, physicians can assist in death provided there is a death request, and the patient is under unbearable suffering with no prospect of improvement. ³⁴ In Canada, medical assistance in dying is allowed when a grievous and irremediable medical condition prompts a death request. ³⁵

Interestingly, Black uses this argument of combining autonomy and beneficence to make a pro tanto moral case for assisted death. Black's account is that assistance in dying is morally permissible just when the patient's wish to die is autonomous, and assistance is what the agent has most reason to do. ³⁶ The latter is determined by assessing whether death would be in the patient's best interests to stop unbearable suffering and low quality of life. ³⁷ Assistance in dying is pro tanto wrong even after an autonomous request and being in the requestor's best interests, but the value of life is overridden. Conduct under this description is defined by the fact that its wrong-making features continue to bite in circumstances where the action is all things considered justified and hence not, on balance, wrong. ³⁸ John Gardner has elaborated this category in terms of conduct we have continuing reasons not to engage in, reasons which do not merely disappear when a justification is forthcoming. However, they may be ‘defeated’ by the reasons favouring acting. ³⁹ There are reasons not to allow assisted death, such as the intrinsic value of life, but this is somewhat ‘defeated’ by having a request to die, which is in the patients’ best interests. ⁴⁰

Challenging Opponents’ Concerns

Opponents of assistance in dying raise concerns about potential disastrous consequences that could follow from a more permissive approach to assisted death, even on the conditions of autonomy and beneficence. One key argument that opponents use is the concept of ‘slippery slope’. ⁴¹ An empirical prediction of the slippery slope argument indicates that a more permissive approach to assisted death will gradually shift our values, accepting cases previously deemed unacceptable. ⁴² For instance, accepting assisted death upon request may eventually lead to accepting cases without this condition. ⁴³ Then, in the event of legalisation, drafting, enforcing and policing any safeguards will be impossible. ⁴⁴

However, there is no plausible reason to assume a connection between allowing assisted death under certain conditions and without these. For example, suppose we now believe that giving a lethal injection to someone incompetent is wrong. In that case, it is unlikely that we will lose this ability in the future, even if some form of assisted death is legalised. ⁴⁵ Such slippery slope arguments essentially lead us into falling down a slippery slope ourselves, as we effectively say that we do not trust ourselves to follow the law, establish limits and respect them. Thus, in theory, there is no reason not to trust that we will be able to understand the law on assisted death and, at the same time, effectively implement any relevant legislative safeguards.

Experience from foreign jurisdictions with right-to-die legislation raises some practical concerns about the slippery slope argument. Evidence suggests that taking the first step to a more relaxed approach under certain conditions will lead to widening those conditions in the future. For example, assisted death legislation in the Netherlands widened to include those with physical and mental suffering, such as those at the onset of dementia. ⁴⁶ Similarly, Belgium extended its legislation on assisted death to ‘anticipation of a future coma, loss of independence, or progressive dementia’. ⁴⁷ But, accurately comparing evidence from foreign jurisdictions to the potential consequences of a more permissive approach to assisted death in England and Wales is speculative. This is because there are differences in social sentiments, legal norms and culture. ⁴⁸ Even if, as in foreign jurisdictions, the English position were to gradually widen, as the Health and Social Care Committee rightly acknowledged in an inquiry on assisted death in March 2023, this is not necessarily a negative slippery slope. This is because widespread public support or practical reasons might justify this. ⁴⁹

Another view on the slippery slope argument is that, according to Keown, logically, accepting a more permissive approach to some instances of assisted death under specific limitations is also a case for legalisation without them. ⁵⁰ For example, we might eventually proceed in allowing assistance in dying for people, regardless of whether they are suffering or have made a request. ⁵¹ Thus, once the first step to a more permissive approach to assisted death is taken, drawing clear boundaries and preventing further extensions to more ethically problematic scenarios becomes difficult.

However, such slippery slope concerns exist whenever we attempt to regulate anything and are not always valid. Even if there is a more relaxed approach to assisted death and legislation under certain conditions, that does not necessarily mean it will lead to legalisation without those conditions. Keown's argument is either to consider autonomy as a rhetorical tool or to increase autonomy to an absolute right. Smith rightly noted that this argument is valid only when unbearable suffering and autonomy are considered separately. ⁵² As long as these two elements are necessary legislative conditions, the risk of slippage is minimised. Consequently, there is no logical link to suggest that even if assisted death is legalised under autonomy and beneficence, cases without these conditions will eventually be allowed.

Besides the slippery slope argument, opponents of assisted death often express concerns that a more permissive approach could pressure certain people to choose assisted death. ⁵³ An example would be someone who has something to gain from their passing, such as an inheritance, or a victim who feels they are a burden to their loved ones. The Health and Social Care Committee acknowledged that elderly abuse is a particular concern as elderly abuse is hard to identify as it often is not physical but emotional. Alternatively, as the House of Commons noted in one of the most recent discussions on assisted death in July 2022, legalising assisted death would pressure vulnerable family members to choose this option and avoid burdening their loved ones. ⁵⁴ ‘Care Not Killing’, an organisation campaigning against legalising assisted death in the UK, agrees with such concerns and warns that any relaxation of the law will leave vulnerable people without adequate legal protection. ⁵⁵

Furthermore, opponents fear a more permissive approach to assisted death could damage the relationship between physicians and patients requesting this option. They fear that a change in the law could profoundly affect the roles and responsibilities of physicians, leading to strained relationships with their patients. ⁵⁶ For example, if a physician discussed the possibility of assisted death, patients might feel abandoned and lose their trust. ⁵⁷ This is because they might think that the physician is no longer invested in exploring other treatment options and instead believes their life is not worth living. ⁵⁸

Nonetheless, robust safeguards can be established in legislative reform to prevent potential pressure on vulnerable individuals and a loss of trust between patients and physicians. ⁵⁹ As rightly suggested by Miller and Brody, physicians can facilitate patients in attaining dignified and peaceful deaths without compelling them to ask for assisted death. ⁶⁰ Physicians can exercise discretion in assisted dying, but only if the patient autonomously chooses it and the physician deems it best. Thus, one of the primary objectives of maintaining trust in physicians and preventing abuse is enforcing safeguards for assisted death that protect those vulnerable. Any policy on assisted death should establish safeguards to ensure that the patient makes a competent, informed and voluntary request for assisted dying, which is in their best interests due to the experience of intense suffering.

Safeguards to ensure these conditions have been used in many foreign jurisdictions, allowing some form of assistance in dying and can be used as a referencing point. For example, Canada, to better assess the patient's request for medical assistance in dying, requires this to be made in writing and signed by a medical practitioner and two independent witnesses. ⁶¹ Also, medical assistance in dying in Canada is offered to those with a grievous and irremediable medical condition. ⁶² This is defined as a serious and incurable illness, disease or disability causing an advanced state of irreversible decline in capability. ⁶³ According to the Canadian Criminal Code, that illness, disease, disability, or that state of decline also causes enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions they consider acceptable. ⁶⁴ If a more permissive approach to assistance in dying is established in England and Wales, such examples from foreign jurisdictions could be used as a reference point to develop effective safeguards for the English system to shield against abuse and loss of trust in physicians.

Creating a new Criminal Law Defence for Assisted Death

Each of the proponents’ and opponents’ arguments in the assisted dying debate offers valuable insights into different perspectives on the potential legalisation of such cases. Conceptual challenges exist in both the proponents and the opponents’ arguments. As a result, many different approaches exist to the legal status of assisted death across various jurisdictions. Amidst such differing views, and since England and Wales have refrained from legalising assistance in dying, finding a compromising position emerges as a potential solution to navigate the moral complexities surrounding this area of the law.

For euthanasia and assisted suicide, a compromising approach for England and Wales is not necessarily a choice between legality and illegality. ⁶⁵ An example of such a compromising approach was discussed in 2006 by the English Law Commission in its consultation on ‘Murder, Manslaughter, and Infanticide’. The Commission made an interesting argument that instead of legalising assistance in dying, many consultees believed there should have been a tailor-made offence or defence for some of these cases. ⁶⁶ This suggestion discussed by the Commission in 2006 is interesting, as the previous reform Bills on the issue of assisted death have proposed some form of legalisation of assistance in dying while adhering to legal safeguards instead of finding a compromise. ⁶⁷ For example, the most recent reform attempts in the House of Lords, the Assisted Dying Bill of 2022, aimed to provide terminally ill adults with specific assistance to end their life at their request. ⁶⁸ Despite passing its second reading in the House of Lords, the Bill ran out of time before passing all the necessary stages, and the parliamentary session ended. ⁶⁹ Nonetheless, in its discussion in 2006, the Law Commission opted against proposing a new offence or defence for assisted death cases. The Commission noted that deciding on such questions is complex and requires an in-depth examination that was impossible to do at the time and with the resources available. ⁷⁰

Creating a new defence or offence for assistance in dying cases will represent a pragmatic compromise of a moral impasse that can satisfy everyone. ⁷¹ It will change an extremely complex area of the law without necessarily choosing between legality and illegality, as euthanasia and assisted suicide will continue to be prohibited in England and Wales. Then, those opposing assistance in dying, because they might be supporters of the absolute value of life, will be content that euthanasia and assisted suicide remain illegal. At the same time, supporters of assistance in dying can be satisfied that the legal approach to these cases has progressed. ⁷² Nonetheless, sceptics of such a compromising approach might argue that the purpose of the law is not to satisfy everyone. Thus, a compromising approach to creating a new defence will be controversial for some who prefer a more precise position of choosing between legality and illegality.

Although extensive research has been done on differentiating offences and defences, deciding the most appropriate reform approach for assisted death is challenging. ⁷³ In one of the most famous accounts of offences and defences, Duff defines offences as those actions for which defendants are called to answer in a criminal court for a wrong they are proved to have committed on pain of conviction and condemnation if they do not offer an exculpatory answer. In contrast, defences are exculpatory answers that block the transition from responsibility to liability for Duff. ⁷⁴ Notably, Duff uses the example of euthanasia to explain that the distinction between offences and defences is important. ⁷⁵ This is because it is morally important whether we count the absence of a request for assistance to die as an element of the offence of murder or the existence of such a request as a defence against a charge of murder. ⁷⁶ Different answers to this issue reflect substantially different understandings of the fundamental wrong of euthanasia and what we should answer for in a criminal court. ⁷⁷ For example, for someone who believes autonomy is an absolute right, even more important than life, non-consent would be an element of the offence. ⁷⁸ What is done at my request cannot wrong me and cannot be the business of the polity. ⁷⁹ Then, the offence of murder would be killing without consent, and those committing this wrong could offer a defence to avoid conviction. ⁸⁰

Following Duff's argument, if assistance in dying is seen as pro tanto wrong, even on the conditions of autonomy and beneficence, a new defence could be created for assisted death cases. While assisting a patient to die is pro tanto wrong, there are special reasons to engage in it when it is genuinely in the patient's best interests and aligns with their autonomous request. In this context, autonomy is of value only insofar as it is what the agent has most reason to do based on their best interests. The physician can plea this defence as an exculpatory answer for the pro tanto wrong of assisting the patient to die. Thus, the physician can admit responsibility for their actions but could block their transition from responsibility to liability in light of the unique circumstances.

Creating a new defence for physicians assisting patients to die entails that at least an evidential burden will be placed on them in court. Offences and defences are notably differentiated in terms of their required evidential support. For offences, the onus lies on the prosecution to prove beyond a reasonable doubt that the defendant committed the offence charged. In defences, the defendant has at least an evidential burden, an obligation to adduce or point to some evidence supporting that defence. ⁸¹ Placing an evidential burden on physicians through an assisted death defence implies that they owe it to the court to answer for the pro tanto wrong of assisted death but can deny guilt. ⁸² They have an explanation of why they acted, which is the unique circumstances present.

Nonetheless, even if through a new assisted death defence, physicians must be ready to answer at a criminal court for the pro tanto wrong of assistance in dying, it does not follow that they must always be prosecuted. In practice, even if such a defence is created, these cases will often not go to trial, and the physician will not have to appear in court. Before the case goes to court, this defence will inform the police and prosecutorial decision-making. For example, one of the things the prosecution is expected to do is to anticipate the possible lines of defence in a case. ⁸³ If there is clear evidence that the actor is entitled to the defence, the case would not go to prosecutors, but even if it does, they would likely choose not to proceed further with a prosecution. ⁸⁴

A Justificatory Defence

Defences are generally described either as justifications or excuses. The usefulness of this distinction is not entirely straightforward because whether a defendant is excused or justified makes no difference to the result of the defence and criminal responsibility. Interestingly, the English courts have not placed great weight on the distinction between justification and excuses, which might indicate that it lacks practical significance. ⁸⁵ Even if these arguments are legitimate, their distinction matters, at least theoretically, due to the different moral assessments of an actor whose conduct was justified and an actor who was excused. ⁸⁶

According to Robinson, who provided one of the most famous theories on justifications and excuses, an offence becomes justified when justifying circumstances exist, and even though the harm prohibited occurs, it is outweighed by avoiding greater harm or advancing the greater good. ⁸⁷ In contrast, in excuse defences, there is no claim that the conduct is right or that it furthers a societal interest. The claim of excuse is an admission that the conduct is undesirable but a plea that, because of special characteristics of the actor or situations undercutting their ability to avoid performing the act, they should not be blamed and punished for it. ⁸⁸ Thus, justified conduct should be encouraged or tolerated, and the focus should be on the act and its circumstances, not the actor. Excuses focus on the actor and represent undesirable conduct that ought not to be encouraged, but some characteristics or situations of the actor vitiate their blameworthiness. ⁸⁹

Following Robinson's account of differentiating between excuse and justification defences, if the proposed defence of assisted death is characterised as an excuse, and excuses convey undesirable conduct, physicians are not likely to be willing to assist a patient in dying. Concerns about describing their conduct as undesirable and something not to be encouraged may lead physicians to deny assistance in dying, even if they might generally support the concept on moral grounds. Specifically, physicians will be concerned that being associated with a practice perceived as an ‘excuse’ for undesirable conduct could lead to losing the public's trust and being exposed to professional criticism.

Based on the argument that the pro tanto wrong of assisted death occurs, but the value of life is overridden by the justifying conditions of autonomy and beneficence makes this defence more compatible with the notion of being a justification. Even though the pro tanto wrong of assisted death occurs, it is justified by the justifying circumstances stopping the patient from experiencing further suffering and upholding autonomy. These justifying circumstances of autonomy and beneficence make the physician's justified conduct of assisting in dying at least tolerated or sometimes encouraged for some patients. Nonetheless, a physician would not be justified in assisting in dying after a patient's autonomous request if the condition of being in the patient's best interests is not satisfied. Similarly, a physician would not be justified in assisting patients to die because they suffer if they do not request assistance.

In some cases, a person who is not a physician might assist another person, such as a loved one, in dying under the justificatory traits of an autonomous request and beneficence. But, even if the conditions of autonomy and beneficence point towards the proposed justification defence, practical concerns indicate that the assisted death defence should not be available in such cases. More specifically, an individual who is not a medical practitioner, such as a loved one, will lack the required medical training to assist in dying. This inexperience risks causing further pain or resulting in a failed attempt, leaving the patient in a worse condition than before. ⁹⁰ But, there are also practical concerns, such as conflict of interest, if a physician assists a loved one in dying. While physicians are medically trained, there might be personal reasons that would lead to biased decision-making when a physician assists a loved one to die. For example, the physician might have something to gain from their loved one's passing in the form of an inheritance, and they are more inclined to assist in dying. ⁹¹ Also, they might view their loved one as a burden to take care of. ⁹²

The proposed assisted death defence must be available only to independent physicians, fulfilling the justificatory conditions of autonomy and beneficence. Robust safeguards will be established to ensure these conditions of the defence. For example, to ensure that the patient makes a competent, informed and voluntary decision, their request for assistance in dying could be required to be written and signed by a medical practitioner or independent witnesses. ⁹³ Also, to ensure that assisted death is in the patient's best interest, medical evidence, such as a medical diagnosis, could be required to assess whether the patient is under intense suffering or that there is a grievous and irremediable medical condition.

Completely Removing Criminal Liability for the Physician

Defences are classified as complete or partial, depending on their effect on the defendant's criminal liability. ⁹⁴ Complete defences remove liability altogether, ⁹⁵ while partial defences do not entirely absolve the defendant of guilt. In England, successfully pleading a partial defence for murder reduces the defendant's conviction to manslaughter. ⁹⁶ According to Greenawalt, partial justifications can justify one initial stage of the action, even though there is no justification for a subsequent stage. ⁹⁷ Alternatively, partial justifications are actions that, while justified, are not as justified as they could have been under different circumstances. The reason the actor is blameful is the same reason that might fully justify their act, only less powerful. ⁹⁸

Suppose this new justificatory defence of assisted death partially removes criminal liability. In that case, this signals that the physician, an entirely rational actor fully responsible for their actions, must be held accountable for disregarding the value of life. ⁹⁹ However, it is unlikely that most physicians would be willing to assist their patients in dying if they would spend time imprisoned. For example, since employers have a legitimate interest in knowing whether a prospective employee has a criminal record, ¹⁰⁰ physicians might be concerned that this will deleteriously affect their future employability and earning power. ¹⁰¹

The defence of assisted death under the conditions of beneficence and autonomy does not fit Greenawalt's description of a partial justification. The physician's conduct of assisting the patient to die cannot be split into two phases, one justified and one forbidden. When a request for assistance in dying is prompted by the patient experiencing intense suffering, the physician acts as an entirely rational individual with active regard for the patient's best interests and autonomy in assisting. There is no wrongful phase to warrant the assisted death defence being a partial justification. The strong justificatory conditions of autonomy and beneficence completely remove the physician's criminal liability for the pro tanto wrong of assisted death.

While the value of life is an important principle that should be protected, assisted death cases under the conditions of autonomy and beneficence are special situations in criminal law. The patient in assisted death cases is ‘innocent’ in the usual sense. For example, they are not engaged in an unlawful attack that could justify the defendant using force or provoke an attack. ¹⁰² However, the patient is not as ‘innocent’ in that they often repeatedly request their physicians for assistance in dying, thus rendering themselves somewhat complicit in their death. ¹⁰³ Furthermore, assisted death cases are unlike other cases in criminal law that might occur during a quarrel, loss of temper, or a desire for revenge. The physician assisting a patient in dying is different from many other defendants in criminal law as they do not act because of anger, loss of control, or fear. Instead, the physician acts in the patient's best interests following their autonomous request for assistance in dying. Therefore, it is unlikely that physicians represent a danger to the public in these cases, and there is benefit in punishing them.

Conclusion

The legal status of assisted death poses complicated questions. Each of the proponents’ and opponents’ arguments in the assisted dying debate offers valuable insights into different perspectives on the potential legalisation of such cases. The proponents of legalising assistance in dying posit the arguments of beneficence and autonomy. At the same time, opponents of legalisation often argue that life has an absolute value or posit slippery slope concerns. This article supported the idea that since conceptual challenges exist in both the proponents’ and the opponents’ arguments, a compromising approach, in the form of a new criminal law defence, can be adopted as a potential solution in England and Wales. This proposal will help navigate the moral complexities surrounding the legislation on assisted death, while euthanasia and assisted suicide should continue to be prohibited in England and Wales.

Specifically, this article, based on the argument that assisted death is pro tanto wrong, even on the conditions of autonomy and beneficence, and through examining criminal law theory, such as the differentiation of offences and defences, proposed the creation of a new criminal law defence. This new defence will justify physicians in assisting patients to die. The physician will admit responsibility for their actions but block their transition from responsibility to liability in light of the unique circumstances. Even though the pro tanto wrong of assisted death occurs, it is justified by the justifying circumstances stopping the patient from experiencing further suffering and upholding autonomy.

The conditions of autonomy and beneficence are equally important and interdependent, as a physician would not be justified in assisting a patient to die after the patient's autonomous request if the condition of death being in the patient's best interests is not satisfied. Similarly, a physician would not be justified in assisting patients to die because they suffer if they do not request assistance. If this defence succeeds, it was proposed that criminal liability for the physician's actions should be completely removed. Notably, the physician assisting a patient in dying is different from many other defendants in criminal law as they do not act because of anger, loss of control, or fear. It is unlikely that physicians represent a danger to the public in these cases, and there is benefit in punishing them.

This proposal of legal compromise represents a moral impasse that can satisfy everyone, both those opposing assisted death and those favouring legalisation. All assisted deaths will be treated as potentially criminal, and the message that life is to be valued will be retained. Those against assisted dying will be satisfied that the law prohibits euthanasia and assisted suicide. In contrast, those favouring legalisation will be satisfied that a new specific criminal law defence has been created for such cases. Finding a compromise implies that each side will get something they are satisfied with. Still, no side will be completely satisfied, which could make it difficult for such a reform proposal to be ever implemented.

This proposal represents a significant divergence from the permissive path that foreign jurisdictions have used. It proposed that an assisted death case can never be approved in advance. Instead, it will allow a retrospective authorisation in some cases. A more comprehensive discussion should be made if such a defence is ever adopted on finding the appropriate criteria against which an assisted death case will be judged retrospectively to be justified. ¹⁰⁴ For example, this article suggested that in ensuring that the patient makes a competent, informed, and voluntary decision, their request for assistance in dying could be required to be written and signed by a medical practitioner or independent witnesses. Also, to ensure that assisted death is in the patient's best interest, medical evidence, such as a medical diagnosis, could be required to assess whether the patient is under intense suffering or has a grievous and irremediable medical condition.