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Assisted Dying: An Update

Euthanasia has always been a contentious topic which attracts an array of opinions. It is also an emotionally charged topic. Newell Legal previously reported on assisted dying in August 2017, providing a general background into the topic from a legal perspective. In that piece, Newell Legal referred to the current battle being fought to legalise euthanasia. There have been fresh developments in the case concerning Noel Conway, as well as recent controversy on this topic in Belgium. These will be explored in turn below. At the time of writing, assisting someone to kill themselves remains a criminal offence, which carries a maximum sentence of 14 years in prison under section 2 of the Suicide Act 1961.

The battle referred to above are the legal proceedings brought by Noel Conway. The Supreme Court recently, on 27th November 2018, rejected an emergency application by Mr Conway that challenged the legal ban on assisted dying. This remains a “right to die” case. Mr Conway is paralysed from the neck down, as a result of Motor Neurone Disease (MND). The Supreme Court Justices (consisting of: Lady Hale, Lord Reed and Lord Kerr) stressed that any change to the law would be a matter for Parliament to consider. This is because Parliament is the supreme law maker (legislature) in the United Kingdom. However, despite this, the Supreme Court would at least be able to make a declaration that UK law was incompatible with Conway’s rights under the European Convention on Human Rights (ECHR). Whether this would have much impact is unclear; a declaration of incompatibility under the Human Rights Act 1998 (HRA) is not binding on Parliament and there is no obligation to change the law. Therefore, a declaration of incompatibility does not affect the validity, operation or enforcement of the law until (and if) an amendment is made. The only remaining option for Mr Conway to bring about his own death is by refusing to consent to the continuation of the “non-invasive ventilation” keeping him alive. It had been argued by the Government that modern palliative care allows some patients to die if they withdraw from artificial ventilation.

One could argue that the rejection of the application leaves Mr Conway with no choice but to suffer. This could be via the effects of MND or suffering from the refusal of medical treatment, as opposed to allowing him to decide to take his own life in order to avoid pain and suffering. The case of Mr Conway follows a long line of cases in this field. Such notable cases include: Diane Pretty, Debbie Purdy, Tony Nicklinson and NHS Airedale vs. Bland. A brief background to each case can be found in a previous Newell Legal article, here. Whilst there is discussion within the general sphere on assisted suicide, very little is likely to be done in the near future. Each decision has yielded the same result; the Supreme Court have firmly rejected the idea of permitting assisted dying in the United Kingdom and maintain that it is for Parliament to decide. This is in the face of conflicting views from the public; 82% of the general public would support proposals to change in the law of assisted suicide.

If one were to compare the position of the UK to other jurisdictions, it can be seen to be somewhat lagging. There are US states and EU countries which have legalised a form of assisted dying. There is, however, a legal debate over who should be able to take their own lives: those who are terminally ill and/or those suffering from unbearable pain. Arguments have been made that if the UK were to follow suit and legalise assisted dying, it should adopt the approach used by its European neighbours; namely allowing assisted dying on the basis of suffering from unbearable pain. The argument put forward is that the "terminal illness approach is limiting". Clearly, it would exclude those suffering from illnesses such as: locked-in-syndrome, multiple sclerosis and people with serious mental health problems.

The comparison to other EU countries leads into the second half of this article. On the same day that Mr Conway’s case was reported, Belgium launched its first criminal investigation of a euthanasia case since the practice was legalised in 2002. The case concerns Tine Nys, who in 2010 (aged 38), had been diagnosed with Asperger syndrome, a form of autism. This was just two months before she died in what was alleged to be a legal killing by a doctor. Belgian officials are investigating whether the three doctors at the centre of the dispute improperly euthanised Ms Nys. Belgium has an uncommon position; it is only one of two EU countries that allow euthanasia of people for psychiatric reasons. The other is the Netherlands. The caveat to euthanasia in these cases is that the individual must prove that they have “unbearable and untreatable” suffering. Clearly, this would generate concern. One can question whether having an autistic spectrum disorder is enough to warrant an individual choosing to end their own life. There are also concerns over whether, in extreme cases, applicants would have the sufficient legal capacity to make such decisions. These fears are further compounded where professionals have arguably too easily followed such a decision by their patient. Thankfully, such issues are rare: there have been over 10,000 people who have been euthanised in Belgium of which only one case had previously been referred to state prosecutors. However this was later dropped. Arguably, this low rate of occurrence is due to a strong regulatory framework designed to protect vulnerable patients.

The arguments for and against euthanasia are vast. There are many arguments in favour of legalising assisted dying, including: personal autonomy, compassion, alleviation of suffering, dignity, and choice. Some arguments in favour involve attaching caveats, such as sufficient legal safeguards which prevent an abuse of the system and also avoid patients feeling like they are a burden. They would also, if implemented, provide a strong framework to protect societies’ most vulnerable citizens. Such safeguards would need to be properly implemented in order to address the concerns that many possess. Regardless of one’s personal views on the matter, it is apparent that there are valid concerns on each side of the divide. It remains to be seen whether the law in the UK will change, although this is unlikely to be the case any time soon.

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