Assisted Dying: A cloudy future
Assisted Dying (also referred to as Euthanasia in this article) has been a topic of discussion that has been raging for decades now, and this post attempts to incapsulate all of the main points from a legal standpoint. It is an extremely contentious area of discussion, which is highly charged on an emotional level. This is completely understandable given the severity of the consequences of the actions involved and the decisions made. It has become even more central recently, with the discussion being somewhat influenced by the Human Rights Act 1998 (HRA) and changes in societal views.
The current position in the UK is that Euthanasia is illegal under Section 2 of the Suicide Act 1961. This is an interesting contrast to Section 1 of the Suicide Act 1961, which de-criminalises suicide. It makes it a criminal offence to assist or encourage another person to take their own life. This means that anyone wishing to assist a loved one to terminate their life, would have to travel to places such as Dignitas in Switzerland.
There are rarely cases regarding Euthanasia in the courts on the basis that the Crown Prosecution Service (CPS) guidance allows prosecutors to use their discretion, resulting in prosecutions being rare. The latest assisted suicide statistics from the CPS (7th July 2017) show that from 1 April 2009 to 7 July 2017, there have been 136 cases referred to the CPS by the police that have been recorded as assisted suicide. Of these 136 cases, 85 were not pursued and a further 28 cases were withdrawn by the police.There are currently 8 ongoing cases. Amongst those cases, it is interesting to note that: one case of assisted attempted suicide was successfully prosecuted in October 2013, one case of assisted suicide was charged and acquitted after trial in May 2015 and 7 cases were referred onwards for prosecution for homicide or other serious crime.
There have been a number of famous cases that include the likes of: Debbie Purdy, Diane Pretty, Airedale NHS Trust v Bland, Kay Gilderdale, Frances Inglis, Douglas Sinclair and Tony Nicklinson. All of these cases have made some form of legal challenge in terms of their legal rights to die, and whether assisted dying should be legalised. I turn to explore a few of these examples in turn below:
Diane Pretty - In 2002 the courts (including the European Court of Human Rights) refused to allow a positive step to be taken to end the life of the patient, who suffered from motor neurone disease. Euthanasia was held to be unlawful and would, according to this decision, be murder. An attempt to grant her husband immunity from prosecution in assisting her suicide was not granted. It was also stated that the right to life did not include a right to death as per Article 2, ECHR.
Debbie Purdy - Pressed for need for a set of Director of Public Prosecution's (DPP) guidelines on the matter. The Law Lords agreed with her, and Kier Starmer QC, who is a Labour MP for Holborn, created these guidelines. They can be found in full here.
Airedale NHS Trust v Bland - In this case, the House of Lords allowed the doctors to withdraw artificial nutrition and hydration. This was seen as an omission, not a positive act, and one that was ‘in the best interests’ of the patient. This indicates that there is in fact a difference between a positive act and an omission in the law, with the latter not resulting in prosecution.
Tony Nicklinson - This was another challenge on the basis that although Mr Nicklinson was not terminally ill, he wanted to terminate his life on the basis of his suffering from "locked-in syndrome" as a result of a stroke he suffered. The judges recommended that parliament should debate the issue before the courts made any decision to change the law. Nicklinson died days after the verdict but his widow took the case, before the European Court of Human Rights, who held that it was for national parliaments to decide on such a sensitive issue.
These cases outline the tension that exists between the law and societal views, and what difficulties the judiciary are faced with in such cases. It also goes further to outline that these are the same issues that MPs have to face during their debates, which goes to support why there is a sense of unease to legalise Euthanasia.
Most recently, earlier this year there was a legal challenge against the Suicide Act 1961 on the basis that it breaches human rights afforded to citizens that protect their dignity and personal autonomy. The challenge was brought by Noel Conway, a lecturer suffering from a degenerative disease. In particular, it was argued that with Article 8 of the European Convention on Human Rights (ECHR), which guarantees a right to respect for private life and personal autonomy, was breached. A judgment is not expected until autumn on the matter, however. There is an opinion piece by a Mr Jamie Hale in the Guardian, who is a poet and disabled activist, where there is strong support for Noel Conway and his legal challenge. He outlines that in circumstances where routine checks by medical professionals are somewhat rushed (likely to be influenced by cuts to the NHS), those who suffer from such terrible conditions are not getting the full treatment that they are entitled to or deserve.
If we compare the position of the UK to other jurisdictions, it can be seen to be somewhat lagging behind. There are States within the US, and Member States of the EU who have in some way, legalised a form of assisted dying. There are fine distinctions between being terminally ill v suffering from unbearable pain. Arguments have been made should the UK follow suit and legalise assisted dying, they adopt the approach used by its European neighbours - i.e. allowing assisted dying on the basis of suffering from unbearable pain. The argument put forward here is that the "terminal illness approach is limiting". One can see that this would clearly exclude those suffering from illnesses such as: locked-in-syndrome, multiple sclerosis and people with serious mental health problems.
Overall, the pictured painted by the current situation is that whilst there is discussion within the general sphere on assisted suicide, very little is likely to be done in the near future. This is despite various debates, pressure being put on the government and parliament to explore the legality of Euthanasia through policy cases and general changes in societal views. It should be noted that Lady Meacher, the chair of Dignity in Dying has claimed that: “About 80% of the population support a change in the law to make assisted suicide legal. People feel passionate about this issue and MPs need to understand that.” - a massive landslide of the population if correct.
There are many arguments in favour of legalising assisted dying, including: personal autonomy, compassion, alleviation of suffering, dignity and choice. In my personal opinion on the matter, I find myself in favour of supporting the legalisation of Euthanasia. However, this is conditional. The conditions include that there are sufficient legal safeguards in place to prevent an abuse of the system and there are guards against patients feeling like they are a burden and being pushed into the decision, amongst other things. Whilst the UK are likely to be torn as to their views on the subject, it is a discussion that must be had, and it has to be taken seriously, with both sides being able to present their views on an equal footing.