Abstract
Encouraging or assisting suicide, the legal situation, attempts to change the law, the case for and against.
The law
The law on assisted dying, assisted suicide, is clear, having been frequently tested or challenged in the courts of law, including the highest court in the land. 1 Under the Suicide Act 1961 ss 2 and 2A, encouraging or assisting suicide or attempted suicide on conviction carries a maximum penalty of 14 years of imprisonment. The Director of Public Prosecution (DPP) has issued legal guidance, Suicide: Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide (October 2014), indicating when he will and will not prosecute, basically distinguishing between genuine compassion – no prosecution – and unworthy motive – prosecution. In practice, very few prosecutions have been initiated.
The governing Code for Crown Prosecutors seeks to define and explain and illustrate the concept of public interest. Prosecution would be likely if the deceased were under 18, lacked mental capacity, did not reach a voluntary, clear, settled and informed decision, did not clearly and unequivocally communicate a decision for suicide. The encourager and assister was not motivated by compassion, brought pressure to bear, did not attempt to stop the suicide; had a history of abuse of the deceased, interfered as a stranger, did not know the deceased; made a practice of encouraging and assisting suicide, for money; and the deceased was his patient or in his care. Prosecution would be unlikely if the deceased had expressed a voluntary, clear, settled and informed decision, and the encourager and assister was wholly motivated by compassion, gave only minor encouragement or assistance, tried to dissuade, was reluctant and assisted the police after the event.
The law naturally reflects parliamentary attitudes and policies at the time of enactment, over 60 years ago, but despite a number of attempts to change the law over that period, Parliament has so far failed or refused to do so. Recent attempts include the Assisted Dying Bill 2014, promoted by Lord Falconer, 18 July 2014, and the Assisted Dying Bill 2021, promoted by Lady Meacher, 22 October 2021: “A Bill to enable adults who are terminally ill to be provided at their request with specified assistance to end their own life.” The intending deceased has to be terminally ill, with less than six months to live, the assistance has to be at request, and specified, and safeguards observed. The Lord Falconer Bill was based on the Oregon Death with Dignity Act. In parliamentary terms, the issue is one of conscience or religion or morality or ethics for each individual MP, not a political party issue. The medical profession appears to be divided or “neutral” on the matter, i.e. substantial proportions of the members in favour of each of the three options, support or oppose or neither.
The case for assisted dying
The individual, provided he (or she) has full adult capacity, is entitled to autonomy, to determine his own life and death, a human right to die as a corollary to the human right to life; he should not be reliant or dependent upon the law, the judge, the doctor, the family or anybody else. There are limits to what the medical profession can do by way of pain relief and palliative care. It is not unknown for members of the medical profession with the highest of motives to “ease the passing”. Suicide should be recognised as a tragedy, a fact of life, and assisting should not be denigrated as a crime, and a serious crime too.
The individual seeking assisted dying will usually be terminally ill, suffering untreatable, unbearable pain, seeking a dignified end. He may wish to cease to be a burden to a loving supportive family, and the medical and caring profession and indeed society.
Travelling to Switzerland or other country to achieve assisted dying can be expensive, time consuming, troublesome, undignified and dispiriting, and indeed on occasion physically impossible. Those who are able to do so can commit suicide: is it right to deny the right to those unable to do so by reason of terminal illness?
For the would-be deceased and the encourager or assister to seek the approval of the court is tedious, and anyway will be unsuccessful. Having to rely upon the discretion of the DPP, a lawyer, offers an uncertain outcome.
Safeguards can be made available: the person must be medically terminally ill, with less than six months to live. The procedure must be authorised by two approved doctors. The means must be specified. The family must be consulted. The police must be informed. There must be a suitable “cooling off period”. No-one need take advantage of assisted dying if they did not wish to do so. A modest beginning or pilot could be introduced, a compromise, a very restricted system most carefully monitored.
Experience has shown that the risk of abuse, such as undesirable influence or pressure or motivation by others, is extremely rare, and likely to be obvious or detectable.
Lord Falconer, Chairman of the Demos Commission on Assisted Dying, admirably put the case to the House of Lords in Parliament (18 July 2014). The Bill sought to restore lost independence and dignity. Only the rich could escape the confines of the law by going to Switzerland. Assisted dying by amateurs is no substitute for a professional method by professionals. At present, the deceased may die alone, so as not to involve his family in crime. Unbearable suffering does occur. Legal assisted dying, as in Oregon, is rarely used even though available. There would be safeguards. The deceased would have only six months to live. He would need to declare his intention. He would need to have been offered palliative care. There would be a minimum 14 days cooling off period. The procedure would have to be self-administration. The doctor would not directly administer death. Naturally, the doctor would be protected by a conscience clause if unwilling to participate. The proposed did not amount to or advocate euthanasia.
Lord Falconer reintroduced his Bill on 20 January 2020, but it has so far not proceeded in Parliament.
Lady Meacher, a cross-bencher, introduced her Bill (House of Lords, 22 October 2021). 2 The patient may be undergoing a slow, painful death, terrible for the family to experience, embarrassing and undignified for all concerned. The only options open are unassisted suicide, e.g. by self-starving or excess alcohol and drugs, often unsuccessful, or travelling abroad. The Bill provides safeguards. The patient must be over 18 and mentally competent, with a clear and settled intention. The family must be consulted. Two independent doctors and a High Court Judge must approve. Assisted dying is available in Canada, Australia, New Zealand, the United States, Spain and elsewhere. The safeguards have not been weakened. Palliative care is steadily improving. Assisted dying is seen as a human right. Professional and public support is increasing.
The case against assisted dying
Parliament has laid down the law, and it must be respected unless and until Parliament is minded to alter the law. In the event of a dispute, it is always open to anybody to go to the judge for a decision to be made according to law.
The doctor may make an erroneous diagnosis of a terminal condition. Patients have made an unexpected or even “miraculous” recovery. Medicine has come up with a new effective remedy. The error of assisting death is not reversible; the error of keeping alive, if such it be, is reversible.
The risk of unbearable, untreatable suffering has become exaggerated and rare, due to the considerable and commendable advances in medicine, pain relief, drugs, palliative care, the hospice. Palliative care is improving enormously. Palliative care should always be tried first.
The family may be placed in an unenviable position: they do not wish to be involved in the death of a loved one, they want to help him, they may or may not believe him to be in a terminal condition.
The risks of abuse cannot be ignored. Malicious and malign persons may influence or persuade or coerce the individual to go for assisted dying, e.g. to cease to be a burden on the family or on the health and caring agencies or society generally. Safeguards can fail. The law could become a blank cheque for the unscrupulous, said Lady Finlay.
A doctor participating in the procedure may be subject to accusations and vilification by opponents of assisted dying – described as “Doctor Death”. The doctor refusing to participate may also be vilified – “The uncaring inhumane doctor leaving his patient to die an unnecessary long painful death”.
The confidence of the patient to be able to rely upon and to trust the doctor to cure illness, to alleviate pain, to protect and to preserve life is fundamental and could be damaged or destroyed by the knowledge that the doctor could support assisted dying.
The safeguards can be unclear and subject to gradual erosion. Medical diagnosis can be subjective, ambiguous, unclear, fallible.
The burden falling upon the judiciary, to ensure compliance with the safeguards, would be burdensome and essentially inappropriate.
Opposing the Falconer Bill in Parliament, 18 July 2014, Lord Mackay of Clashfern, former Law Lord and Lord Chancellor, said that the proposed law would threaten the vulnerable. The current discretion in the DPP to prosecute or not on the merits was a satisfactory protection. The six months to live criterion would be arbitrary. The dying would be faced with a difficult dilemma, assisted dying or natural dying. Most people, with the help of medical science, and hospice care, achieved a dignified death under current circumstances. The Bill was in effect being promoted by the Voluntary Euthanasia Society, a step towards universal euthanasia.
The most powerful speech opposing assisted dying in the 2021 Meacher Bill was Lady Finlay of Llandaff.
Participants
Notable medical speakers among the 142 in the Meacher debate included Lord McColl, Lady Hollis, Lady Finlay, Lord Winston. Notable legal speakers included Lord Brown, Lord Mance, Lord Etherton, Lord Neuberger, Lord Carlile and Lady Mallalieu.
Government
The current position of the current Government is to be found in the speech of Lord Wolfson of Tredegar, Parliamentary Under-Secretary of State for Justice (22 October 2021), final speech in the Meacher Bill debate. The criminal law is involved. Government is always concerned to protect the vulnerable. The issue of assisted dying is a matter for individual conscience. Government stance is neutrality, impartiality, and disinterestedness. The decision, whatever it may be, is for Parliament and not for Government.
So, what you do think, dear Reader?