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Assisted Suicide

The ruling in Nicklinson has opened a new chapter in the hot debate on assisted suicide. Though the Supreme Court, by a majority, declined to grant the applicant’s wish that someone who assisted them in their suicide would not be prosecuted with murder, the ruling by two of the judges, as well as the argument in the entire judgement suggests that it is only a matter of time before assisted suicide is declared lawful in the UK. The ruling per Lady Hale is of particular importance in this debate. According to Lady Hale, ‘it would not be beyond the wit of a legal system to devise a process for identifying those people, those few people, who should be allowed help to end their own lives’. In light of this judgement, this essay critically evaluates whether reform of assisted suicide is desirable from both legal and ethical perspectives. It also looks at how a future assisted dying bill could be drafted.

Legal Basis of Assisted Suicide

Under the terms of the Suicide Act (1961), assisted suicide is a criminal offence that is punishable by a term not exceeding 14 years in prison. There have been campaigns to reform this law, but this attempt has been met with both legal and ethical concerns. The main legal argument has been that Section 2(1) of the Suicide Act is incompatible with article 8 ECHR. Article 8 protects the right to private and family life. This right can only be interfered with in accordance with the law and in so far as it is necessary for a democratic society. Relying on this provision, proponents of legal reform of assisted suicide claim that section 2 of the suicide act violates their right to private life. The right to private life here is interpreted as the right to die. From such a view point, therefore, Section 2(1) of the Suicide Act is seen to be incompatible with Article 8.

Although the majority rule in Nicklinson agreed that the section was incompatible with Article 8, they fell short of declaring it so until parliament had an opportunity to debate legislation that could legalise assisted suicide. However, the court threatened that if the parliament failed to do so ‘in the near future’, the court would not have any other option other than to declare the section incompatible. But in a minority ruling, Lady Hale and Lord Kerr declared the section incompatible. According to Lady Hale, the present law is incompatible “not because it contains a general prohibition on assisting or encouraging suicide, but because it fails to admit of any exceptions”.

The argument towards incompatibility is that since section 2(1) interferes with article 8(1), it can only be justified if it satisfies the requirement laid out in Article 8(2) ECHR. This ruling was informed by previous rulings in Purdy and Haas The ruling, that section 2(1) is incompatible with Article 8(1) is by itself a milestone. It is to be remembered that in Pretty v DPP, the House of Lords ruled that the ban on assisted suicide did not engage article 8. It took the intervention of the Strasbourg court to find the right to private life was indeed affected by the ban on assisted suicide.

In this regard, the legal question before the court has been whether the existence of Section 2(1) meets the requirements of Article 8(2). According to this article, the fundamental rights granted by Article 8(1) can only be interfered with if:- (i) it is in accordance with the law, (iii) serve one of the legitimate goals set out in Article 8(2), or (iii) if it is necessary for a democratic society. to determine if these requirements are met, Lord Wilson derived the four necessary questions to use: “(a) is the legislative objective sufficiently important to justify a limiting factor? (b) are the measures that have been designed to meet it rationally connected to it?; (c) are they no more than are necessary to accomplish it?; and (d) do they strike a fair balance between the right of the individual and the interest of the community?”. These are the questions that the Supreme Court relied on to determine if the issues put forward by the state satisfied the requirement of Article 8(2). It was the view of the court that the state had a weak legitimate aim but it nonetheless found the need to create a balance between the legitimate aim and the interest of the few individuals.

Section 2 advances the need to protect the weak and the vulnerable. In this respect, the weak and the vulnerable are those who have reached a point where they can no longer bear the indignity of their situation. These people may want to die not because of their pain but because they do not want to be a burden to others. Although the Supreme Court does not dismiss this objective, it is receptive to the view that a blanket ban on assisted suicide has to be in place for this objective to be realised. According to the Supreme Court, a blanket ban denies individuals who are suffering their personal autonomy to decide to die. It was the view of the court that a blanket ban was disproportionate to the legitimate aim of protecting the weak and the vulnerable.

From the analysis above, it is understandable to conclude that even though the ruling in Nicklinson did not manage to change Section 2, it nonetheless managed to put up a strong case for legal reform. In the debate that has ensued, there is the argument that legalising assisted dying safeguards the personal autonomy of individuals. The proponent of legal reform argues that Section 2 impinge on the right of individuals to decide at what point and by what means they should end their lives, even when such individuals have the capacity to reach a free decision. This by extension violates the right of individuals to have a dignified death. The argument on this is that it is a violation of human dignity to force an applicant to go through a period of extreme suffering while denying them the right to access assistance to bring about a dignified and peaceful death.  Such restrictions are considered unnecessary in a democratic society.

Ethical Concerns

However, some ethical concerns continue to impede legal reforms in this area. While legalising assisted suicide could help the few who undergo extreme suffering and pain, it might be used to oppress the weak and the vulnerable. As Golden and Zoami argue, ‘fear, bias, and prejudice against disability play a significant role in assisted suicide”. In such view, proponents of Section 2 claim that such vulnerable people as the disabled would choose to terminate their life not because of any pain but because of stigma and the feeling that they are a burden to others. Some of the proponents of decriminalising assisted suicide also claim that even the so-called personal autonomy is not absolute autonomy. As Dyer argues, some people, either because of their personality or educational background can never be truly autonomous. According to Dyer, “there is always the potential of the unscrupulous relative taking the advantage of a vulnerable person”. This was the case in R v McShane where a daughter encouraged her mother to commit suicide in order to start the process of inheritance. This goes hand in hand with the fear that legalising assisted suicide would open the gate to involuntary euthanasia. In addition, scholars have also raised doubt that a terminally ill patient would have the mental capacity to consent to assisted suicide.

Then there is the philosophy of the sanctity of life. Respect for the intrinsic value of all human life, as Lady Hale observes “is probably the most important principle in Judaeo-Christian morality”. Lord Sumption also makes reference to this philosophy in paragraph 209. Those who come from Judeo-Christian backgrounds would therefore find it difficult that there is another person, apart from God, who has the right to take away the life of another. This runs contrary to the other intrinsic value- that of personal autonomy. While the latter believes that individuals have the right to decide their own fate, the Sanctity of life approach believes that it is only God who can take away life.

Assisted Dying (No2) Bill

The evaluation of the legal and ethical concerns on assisted suicide gives a base for analysing why Assisted Dying (No2) Bill has failed and how such a bill can be drafted to succeed in the future. There are several factors that can be blamed for the bill’s failure but the major ones are legal and ethical.

There is no other source that is more credible in analysing the bill’s failure than the House of Common debates. In an emphatic defeat, the House of Commons voted 118 Mps in favour and 330 of them against the decision to legalise assisted dying. From the readings of Hansard, it is easier to discern that the main contributing factor to the bill’s failure was societal attitudes toward death. Most of those MPs against the bill termed it as “legally and ethically totally unacceptable.” The MPs in support of section 2 argued that the current law exists to protect the weak and the vulnerable –elderly, sick, depressed, and the disabled.  According to them, the much-touted right to die could easily be turned into a duty to die. As such, the MPs felt they had a duty to protect the weak and the vulnerable but “not to legislate to kill them.” There was also fear of how the bill could affect the relationship between patients and their doctors. The MPs felt that the bill would “overturn 2,000 years of the Hippocratic Oath”. Despite the supporters of the bill claiming that social attitudes have changed, it was clear that assisted death remains a taboo in the UK.

In light of such a parliamentary debate, it is clear that for such a bill to succeed, it has to address ethical and legal concerns. One of the concerns is how such a bill could protect the weak and the vulnerable while at the same time giving a few people the right to die. This is having a law that creates a balance between the two competing interests. Such a task, according to Lady Hale, is “not beyond the wit of a legal system.” In the words of Lady Halle, it is possible “to devise a process for identifying those people, those few people, who should be allowed to end their own lives”.  Identifying those few people would be guided by four essential requirements: one, the people should have the capacity to make the decision for themselves; two, they should have reached the decision freely without undue influence from any quarter; three, they should reach that decision with full knowledge of their situation, the options available to them, and the consequences of their decision; and four, they have to be unable, because of physical incapacity or frailty, to put that decision into effect without some help from others. As a way of introducing safeguards to the weak and the vulnerable, the High Court has to be charged with the responsibility of checking the satisfaction of these requirements. This will address the fear that such a law would be used to blackmail the sick, elderly, disabled, or depressed. There is no doubt that such guidelines will continue to inform how a future bill should be drafted. According to Lord Neuberger, future legislation should not limit the right to die only to those applicants with shorter life expectancy (six months) but even to those who have the prospect of living many years if that life is “valueless, miserable and often painful.” Such a proposal may have challenges in the current society’s attitudes.

Nonetheless, it is practical to conclude that such a bill will only pass when the societal attitude towards assisted dying changes significantly. As public opinion continues to evolve, and other foreign laws continue to accept the notion of assisted suicide, the opposition in the UK may change and legal and ethical acceptance of assisted suicide may then succeed.

Bibliography

Journals

Dyer K, ‘Raising our Heads above the Parapet? Societal Attitude to Assisted Suicide and Consideration of the need for law reform in England and Wales’, (2009) 21 The Denning Law Journal, pp27-48 at p.33

Frost T, D Sinha and B Gilbert, ‘Should assisted dying be legalised?’, [2015] 9 Philosophy, ethics and Humanities in Medicine 3

Golden, M and T Zoanni, ‘Killing us softly: the dangers of legalizing assisted suicide’, (2010) 3 Disability and health Journal, 16-30, at p.17

Kotob M, ‘Article 8 and the evolution of healthcare law’, [2015 Manchester Review of Law, Crime and Ethics, pp 17-27

Malpas P et al, ‘Why do older people oppose physician-assisted dying? A qualitative study’, (2014) 28 Palliative medicine 4, pp.353-359

McCormack R, M Clifford and M Conroy, ‘Attitudes of UK doctors towards euthanasia and physician-assisted suicide: A systematic literature review’, (2012) 26 Palliative Medicine 1, pp. 23-33

Mullock A, ‘The Supreme Court Decision in Nicklinson: Human Rights, Criminal Wrongs and the Dilemma of Death’, [2015] 31 Journal of professional Negligence, pp.18-28

Wicks E, ‘The Supreme Court Judgement in Nicklinson: One Step forward on Assisted Dying; Two Steps Back on Human Rights’, [2015] 23 Med Law Rev 1, 144-156

Statutes

Assisted Dying (No2) Bill

European Convention on Human Rights

House of Commons, ‘Assisted Dying (No.2) Bill Debates’,

Suicide Act (1961)

Cases

Hass v Switzerland [2011] 53 EHRR 33

R (Aguilar Quila) v The Secretary of State for the Home Department [2012] 1 AC 621, para 45

R (Nicklinson and Lamb) v Ministry of Justice, R (AM) v Director of Public Prosecutions [2014] UKSC 38 (25 June 2014) Para 314

R (Pretty) v DPP and Secretary of State for the Home Department [2001] UKHL 61

R (Purdy) v DPP (2009) UKHL 45

R v McShane (1977) 66 Cr App R 97

 

[1]  R (Nicklinson and Lamb) v Ministry of Justice, R (AM) v Director of Public Prosecutions [2014] UKSC 38 (25 June 2014) Para 314

[2] Ibid, para 301

[3] M Golden and T Zoanni, ‘Killing us softly: the dangers of legalizing assisted suicide’, (2010) 3 Disability and health Journal, 16-30, at p.17

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