Legalizing Active Voluntary Euthanasia and Physician Assisted

Introduction

Euthanasia comes from the Greek words su, which means good and Thanatos, which means death. According to the Oxford English Dictionary, it means “gentle and easy death”. There are many types of euthanasia, involuntary, voluntary active and passive. However, this paper will focus on active voluntary euthanasia (AVE) as well as physician assisted suicide (PAS), which is illegal under the Suicide Act and thus illegal under English Law. It is important to stress the difference between AVE and PAS for clarity. AVE generally means the act of a physician, which intentionally ends a person’s life upon his or her request.The criminal offence here would be murder with the sanction of life imprisonment if convicted. However, in physician-assisted suicide (PAS), it is the person who self-administers the lethal substance prescribed by a physician. The maximum penalty here would be 14 years. This paper will critically examine the current law around active voluntary euthanasia (AVE) and physician-assisted suicide (PAS) and examine whether AVE and PAS should be legalised or not in the UK, providing law dissertation help on the subject.

The aim of this paper is to initially look at the existing legal framework and the attempts that have been made through Parliament to legalise PAS and/or AVE. Case law will also be considered where bids for assisted suicide or physician assisted suicide have been made through the courts. There will be a critical analysis of the arguments put forward which either are pro AVE or PAS and those that are against such legislation. A comparative assessment will be made of the law in other jurisdictions where AVE or PAS has been legalised. Conclusions and recommendations will be addressed at the end of this paper.

The existing legal framework

Under English law, as mentioned above, AVE is considered to be murder. Thus any person whether doctor or other person who deliberately ends a persons life with or without their consent could be imprisoned carrying a life sentence. The necessary elements to be considered in the prosecution of murder are found in the judgment of Lord Steyn in Regina. It was held that the jury must consider all evidence in context of the element to the state of mind, in absence of the purpose to kill or cause serious harm, is sufficient for murder. However, in many prosecutions, the judiciary and the jury have shown leniency towards doctors who complied with a patients’ request to end life.In Moor, Dr. Moor was arrested after admitting to have had helped a number of patients die painlessly. Hooper J addressed the jury depicting the integrity of the doctor and admiring his qualities to consider the irony that the doctor who tends to the patient ends up facing the charge. The jury accordingly acquitted the doctor in less than an hour. However, in Cox, Dr. Cox was convicted of attempted murder. In this case, Ognall J observed that it is not justifiable where the use of drugs hastens the

Emily Jackson, Medical law: text, cases, and materials (Oxford University Press 2013), 906.
NHS, ‘Euthanasia and assisted suicide”(2017)
LucDeliensand Gerrit Van der Wal, ‘The euthanasia law in Belgium and the Netherlands’ (2003)362(9391) The Lancet1239-1240.
J. Pereira, ‘Legalizing euthanasia or assisted suicide: the illusion of safeguards and controls’ (2011) 18(2)CurrOncol. e38–e45.
Ibid, 908.
R v Moor [1999] Crim LR 2000 Jul 568-90.
Ibid.
R v Cox (1992) 12 BMLR 38.

moment of death. It is never lawful to do so where the primary purpose is to hasten death. In this context, the use of potassium chloride, which is not an analgesic, has no curative properties, and is not used within the medical profession to relieve pain, when injected into a vein becomes a lethal substance. In Moloney, it was held that if a person could foresee the probability of a consequence as little short of overwhelming, it suffices to establish the necessary intent. In reality most people who help their loved ones to die (mercy killings) can invoke the defence of diminished responsibility which generally prevents a custodial sentence. Under the Homicide Act 1957, s2 there is a partial defence of diminished responsibility where a person is “suffering from an abnormality of mental functioning”, which is a result of a recognised mental condition, substantially impairing the defendant’s ability to understand his nature of conduct, form a rational judgment or exercise self-control, and which is an explanation of his acts and omissions in executing or being a party to the killing. This defence is not available to medical professionals. A medical professional will be criminally liable in case he deliberately ends the life of his patient. In respect to the crime of murder, this would often satisfy the actus Reus, which is proof of the conduct that caused the death and mens rea which is the intention to kill or cause grievous bodily harm. It is not even relevant to consider his motive and the patient’s consent. He cannot claim the defence of “abnormality of mental functioning”. His conduct must have contributed significant to or substantially caused the death. If causation is not established, the charge of attempted murder will apply.

PAS/AS is also illegal in this jurisdiction. The Suicide Act 1961 makes assisted suicide Illegal. It is illegal to “[a]id, abets, counsel or procure the suicide of another or assists an attempt of another to commit suicide”. It is not to facilitate ending life, but to secure the person in seeking medical help without any fear of prosecution. Section 2(1) ensures anybody assisting a person to commit suicide will be punished with up to 14 years in prison. Thus whether assisted by a loved one or by a doctor it will attract a criminal sanction however with AS there has not been a prosecution thus far however cases such as Pretty and Purdy have pushed the courts to determine whether it will be lawful to assist their loved ones to die and what is actually meant by ‘assisting’ which will be discussed below. In this context, it is PAS that is most likely to be legalised in the UK rather than AVE and as such there have been many Bills put into Parliament to change the law.

The House of Lords, Medical Ethics: Select Committee Report in 1994 considered end-of-life decision-making, including medically assisted dying. Since then, there have been certain key developments including attempts to legalise PAS. The Assisted Dying for the Terminally Ill Bill [HL] 2005 reviewed whether legislation should permit assisted dying. It touched upon various elements, including criminal liability of the person assisting the death, integrity and sanctity of the patient, competency, hidden pressure, position of the elderly and disabled patients, and abuse of legislation. The Bill had many memorandums by various private and public organisations of medical professionals. The memorandums included the study of impact of existing laws, such as the Homicide

Ibid.
R v Moloney [1985] 1 AC 905.
Emily Jackson, Medical law: text, cases, and materials (Oxford University Press 2013) 907.
Ibid, 908.
Emily Jackson, Medical law: text, cases, and materials (Oxford University Press 2013), 912
House of Lords, ‘Medical Ethics: Select Committee Report’ HL Deb 09 May 1994 Vol 554 cc 1344-412 accessed

Act 1957 and the Suicide Act 1961 on patients, their families and medical professionals. One of the memorandums from the Voluntary Euthanasia Society claimed that there were cases of medical professionals who assisted in dying. Elderly and disable people also reportedly supported assisted dying. Medix Poll Qr564, (2004) showed that many doctors and nurses reportedly sought a change of the law and chose legislation instead of criminal prohibition. Most recently, the BMA in its policy stated that if euthanasia were legalised, a clear demarcation should be made between those doctors who would be involved in it and those who would not. The Bill should therefore permit medically assisted dying, as a last resort, in case of a terminally ill person suffering unbearably. Likewise, the 2005 Lord Joffe’s bill primarily aimed to legalise assisted suicide, but it also provided for voluntary euthanasia, which should be subject to authorisation only where a patient was physically incapable of taking their own life with the medication supplied. The bill presented three main conditions. The patient should have terminal illness, be incompetent and is under unbearable suffering. The bill also provides for protecting the interests of all members of the clinical team. Likewise, the Lord Falconer’s Assisted Dying Bill [HL] 2014-15 also sought to legalise assisted suicide, not euthanasia, for mentally competent adults who are eighteen (18) years of age and above with less than six (6) months to live. The bill presented the condition that there should be a two doctors’ signature model similar to the Abortion Act 1967, and death should take place after fourteen (14) days by self-administering ‘medicine’ in presence of an assisting health professional. The Bill would decriminalise the act of assisting dying as per the Suicide Act 1961. The 2013 Margo MacDonald’s bill attempted to introduce a form of assisted dying. The bill sought assisted dying people with terminal or life-shortening illnesses, or progressive conditions that are terminal or life-shortening. It sought to remove criminal and civil liability from assistors, who followed prescribed procedure, including making informed decision to end life and opportunity to reflect before moving on to key stages.

Select Committee on the Assisted Dying for the Terminally Ill Bill, ‘Assisted Dying for the Terminally Ill Bill [HL] 2005’ (Authority of the House of Lords) accessed

In addition to the Bills, there were many attempted court cases that sought to legalise assisted dying. In the case of Pretty, Pretty alleged that alleged the state breached her Convention rights, including Article 2 that provides for the right to life. She argued that the right to life also meant that she had a right to die, and the state breached her right by not agreeing that her husband would not be prosecuted for assisting her suicide. It was held that the right to life cannot be interpreted to include right to die. A person cannot take direct action for breach of Convention rights against another person or private company. The court, however, is bound by the HRA 1988 to comply with the Convention and may interpret the law in order that the Convention is not violation. The ECtHR held that the law does not allow this kind of choice even it was to avoid undignified and distressing end to life. This would go against the right to respect private life, under Article 8(1) of ECHR. It held that the Suicide Act 1961, s2 provides for safeguarding life by protecting those who are weak and vulnerable, including especially the people who are not capable to take informed decisions in respect to acts intended to end or assist in ending their life. The vulnerability is the rationale behind the protection given under the law. The State has to assess the risks and possible chances of abuse and if exceptions were needed. There is a clear chance of abuse despite proposition to lay down safeguards. Therefore, a blanket ban on assisted suicide is proportionate. However, it has been observed that even where the law were not clear, between 1998 and 2011, there were reported cases of 215 British people who travelled to Dignitas, an established well known assisted suicide clinic in Switzerland. This was termed as suicide tourism by some. This was the aim in Purdy. In this case, Purdy she wanted guidance from the DPP what would constitute aiding and assisting a suicide. The House of Lord held that petitioners cannot seek advance undertaking from the DPP that the DPP would refuse consent to prosecuting the assister. No similar objection is possible that indicate in advance the general approach towards the exercise of the DPP’s discretion. The court called for a custom-build policy statement that would indicate the relevant factors to distinguish the situations the petitioner and the assister to refrain from those in which the petitioner might hope, if not commended, “at the very least be forgiven, rather than condemned, for giving assistance”. This case led to the 2010 policy document in which the DPP set put terms associated with the likelihood of prosecution in respect to those persons who would assist their loved ones to travel to destinations where it is legal to carry out assisted death without the fear of prosecution in their home country. Another case that attempted to push forward assisted dying is that of Nicklinson v Ministry of Justice based on the principle of necessity. Lord Dyson Mr stated that the defence of necessity does not wholly sustain. Sanctity of life it cannot give way to personal autonomy or dignity. There is no right to commit suicide and as such there cannot be any right to require the State to permit anyone to assist a person to end life or kill the person. Right to assisted dying is a complex and controversial area of law. The court cannot put up the defence of necessity. It is for parliament. The defence of the

R (on the application of Pretty) v Director of Public Prosecutions [2001] UKHL 61; Pretty v United Kingdom (2002) 35 EHHR I.
Lucy Jones, Introduction to Business Law (Oxford University Press 2013) 76.
R (on the application of Pretty) v Director of Public Prosecutions [2001] UKHL 61; Pretty v United Kingdom (2002) 35 EHHR I.
Ibid.
Jennifer Hardes, Law, Immunization and the Right to Die (Routledge 2016) 5.
R (on the application of Purdy) v Director of Public Prosecutions [2009] EWCA Civ 92.; [2009] UKHL 45.
Ibid.
Jennifer Hardes, Law, Immunization and the Right to Die (Routledge 2016) 5.
Nicklinson v Ministry of Justice[2013] EWCA Civ 961.

person assisting death would apply to both euthanasia and assisted suicide. This raises the issue of whether the courts can put up the defence to assisted suicide when the law makes it a serious criminal offence carrying sentences of up to 14 years imprisonment. Thus, the defence of necessity cannot be fashioned for both assisted suicide and euthanasia.

Legal framework in other jurisdictions

This section will examine briefly the positions regarding PAS and AVE in other jurisdictions beyond the UK t understand various aspects of the arguments for legalising or objecting to legalising PAS or AVE. The examination of the other jurisdictions would facilitate the critical evaluation in the arguments against or in favour of PAS and AVE. This would further facilitate in arriving at reasons behind any recommendation that the arguments may arrive.

The movement to legalise euthanasia and physician-assisted suicide gained momentum during the late 1980’s and early 1990’s in the United States. This movement started in some of the EU countries as well. In 2002, the Netherlands legalised both euthanasia and physician-assisted suicide through the 2002 Law for the Termination of Life on Request and Assisted Suicide. The law required physicians to generally limit euthanasia to cases where the patient voluntarily and persistently insisted he was suffering unbearably; the physician then must consult with one of his colleagues about his condition and the appropriateness of his request to end his life. The physician needs to file a report of euthanasia, failing to do so would amount to homicide and it would be treated as illegal. Belgium adopted euthanasia law in 2002 similar to the Netherlands. It does not regulate physician-assisted suicide. It also needs to comply with the three conditions above as required in the Netherlands. Failing to report amounts makes euthanasia illegal and it amounts to murder. Both the countries do not require the patient to be terminally ill.However, Belgium regulates only AVE and it does not prohibit suicide assistance, which technically renders physician-assisted suicide legal. It allows AVE if the patient is under irreversible unconsciousness and he has given an advance directive for AVE. Thus, the condition of “unbearable suffering” is not needed. Belgium also allowed AVE for children of any age possessing conscious decision making capacity with request from the child and with parental approval. Switzerland has a different view, which does not consider assisting someone to commit suicide illegal if such assistance has altruistic reasons. Dignitas is in Switzerland where most UK citizens wanting assistance with dying have visited. In 2009, Luxembourg legalised both euthanasia and physician-assisted suicide, also covering cases where the person is without decision-making capacity subject to the condition that he has made an advance directive. Luxembourg is the third country in Europe, after Belgium and the Netherlands, to legalise both AVE

Ibid
Government of the Netherlands, ‘Euthanasia, assisted suicide and non-resuscitation on request’ accessed
Raymond J. Devettere, Practical Decision Making in Health Care Ethics: Cases, Concepts, and the Virtue of Prudence (Georgetown University Press 2016) 417-418.
Ibid.
Ibid.
Jennifer Hardes, Law, Immunization and the Right to Die (Routledge 2016) 5.

and physician-assisted suicide. Doctors cannot be prosecuted if the patient is in a “grave and incurable condition” and has repeatedly asked for the procedure.

While the review of other jurisdictions is brief, it could, however, reflect some core consideration regarding the factors around AVE and PAS. It could be observed that legalising may be subject to critical factors such as those patients suffering unbearably or who could take conscious decision. It could also be observed that there has to be some procedural monitoring, such as the need for physician to file a report of euthanasia, or non-requirement for regulating physician-assisted suicide.

Ethical arguments against Physician Assisted Suicide

In a study covering a 20 year period until 2012 that assessed attitudes of the UK doctors concerning physician-assisted suicide and active, voluntary euthanasia, it was found that UK doctors oppose the introduction of both physician-assisted suicide and active, voluntary euthanasia. One significant factor was the degree of religion that influenced doctors’ attitudes. This is supported by the central argument of sanctity of life against euthanasia. It may have a secular and religious basis.Islam and Christianity provide for the respect and preservation of human life. Islam views that it is God who gives life and causes death. Christianity views life as a gift from God and it would offend Him to take away this life.Judaism views life to be sacred and considers suicide and euthanasia as murder. Euthanasia is murder where the primary intention is killing another person and is inherently wrong, despite the patient’s consent.

The Assisted Dying for the Terminally Ill Bill [HL] 2005 was founded on the principle of personal autonomy. According to this bill, subject to prescribed safeguards terminally ill people should have the right to medically assisted dying die in the same manner that patients, whether or not terminally ill, have the right to refuse life-prolonging treatment. This bill, thus, presented concerns around legality of the right to assisted dying. For instance, in cases where the patient is terminally ill, or is disabled or elderly, he might be under constant pressure if he could legally access the option of assisted suicide. The choice is not of assisted dying or not dying. It is between dying now or later. In assisted dying, the patient is opting for an earlier death. This is where he may want to exercise control. Towards the end of life, this control may be absent and it may be preceded by a period of dependency. This is when the patient undergoes a “loss of self’ feeling. This feeling may be the fear to the loss of autonomy, which may be the main motivation to seek assisted dying. Furthermore, this is also related to one’s dignity that is often caused by a patient’s lack of independence interfering

Raymond J. Devettere, Practical Decision Making in Health Care Ethics: Cases, Concepts, and the Virtue of Prudence (Georgetown University Press 2016) 417-418.
Ruaidhri McCormack, Margaret Clifford and Marian Conroy, ‘Attitudes of UK doctors towards euthanasia and physician-assisted suicide: a systematic literature review’ 26(1) (2012)Palliative Medicine23-33.
T DeclanWalshet al. Palliative medicine (Saunders 2009).
HH Bulow et al., ‘The world’s major religions’ points of view on end-of-life decisions in the intensive care unit’ (2008) 34(3) Intensive Care Med 423-30.
L Bartels and M Otlowski, ‘A right to die? Euthanasia and the law in Australia’ (2010) 17(4) J Law Med 532-55.
Christian Nordqvist, ‘Euthanasia and assisted suicide’ (2017)(Medical news today)accessed

with his sense of self. In Nicklinson, the issue was based on the principle of necessity to assisted dying. Nicklinson talks about his loss of dignity and stated that he needs help in every aspect of his life. He can only eat when he is fed like a baby. He does not have any privacy or dignity left. He is not depressed, but he is fed up of his life.

Legalising would create possibility of reinforcing public prejudices against disabled people, including those of the doctors. There might also be a deliberate flouting of the law and applying the law to those not intended. For instance, covert euthanasia was allegedly taking place despite absolute legal prohibition, like it was occurring in the Netherlands before the legalisation of voluntary euthanasia. In 2005, the Netherlands reported 2410 deaths by physician-assisted suicide or active, voluntary euthanasia. Legal requirements regarding AVE for example in Belgium, such as reporting, written request, consultation with physicians specialised in palliative care, and drugs to be administered by physician were not complied with. In the Netherlands the reporting requirements were not adhered to. This is a testimony to the violation of basic human rights of the patients. Even the UN recognised this violation when it stated that the relevant laws in the Netherlands violate UDHR rights to safety and integrity. There were 16 public interest factors that were in favour of prosecution due to lack of mental capacity or that there was no informed decision. The factor that mainly favoured the prosecution was that the medical professional was acting in his capacity. Further, the option may become a part of a therapeutic option, shifting the practice to treating the patient’s death as an unavoidable necessity and in his best interests. Legalising might create distrust between doctors on the part of patients, and at the same time conflict with their professional ethics. It would also be difficult to tackle competency issues where there are multiple neurological conditions applicable to patients who appears normal to the public, but might have severe cognitive impairments. The reported cases of abuse of law and regulation and ineffective safeguards and controls may lead to the argument that there should not be any legalisation of assisted suicide.

The element of sanctity and dignity of a person’s life, which appeal to the humanitarian thought that if it would be possible to stop somebody’s suffering. Sanctity suggests some form of religious prohibition, but in a plural religious and non-religious society, there would be legally no place for religious prohibitions. Further, assisted dying may be based on objective best interests and consent. However, the issue is how to determine the consent, which in turn raises the question of mental capacity to give consent. Patients’ requests may rarely be autonomous, as seen in the case of

Emily Jackson and John Keown, Debating Euthanasia (Hart Publishing Ltd 2012).
Nicklinson v Ministry of Justice[2013] EWCA Civ 961.
Ibid.
E.C. Bullock, ‘Assisted Dying and the Proper Role of Patient Autonomy’ in Cholbi M. and Varelius J. (eds.), New Directions in the Ethics of Assisted Suicide and Euthanasia. International Library of Ethics, Law, and the New Medicine (Springer 2015).

Belgium and the Netherlands where in most of the cases, the patients are not in their mental capacity to take informed decisions.

Irrespective of the efforts to legalise euthanasia, including pressure groups like “Dignity in Dying” in the UK or “Compassion and Choices” in the US, campaigns for legislations have been struck down, as it was seen with the bills discussed earlier. The Supreme Court of the UK, just like the courts in Ireland, South Africa and New Zealand, has denied recognising legal rights to physician assisted suicide. The opposition and argument is more a morally based rationale. It is morally wrong for a person to kill an innocent person even at the innocent person’s request. However it is the slippery slope argument, which is stopping the legislation. This fear of slippery slope arises if assisted suicide is accepted and it will inexorably lead the society to accept euthanasia as the norm. The effect will be that it would be a bad thing to those who oppose euthanasia and be a good thing to those who support it. If physician assisted suicide is legalised, it might lead to abuse and exploitation of the poor and the vulnerable. There is a risk of a slippery slope where euthanasia might be legalised without even the request of the patient. Medical professionals might oblige to conduct against their own religious or moral convictions. Thus, a slippery slope begins with the legalising PAS or AVE. Instead of legalising PAS and AVE, consideration must be given to arguments that do not seek legislation but instead provide for good pallative care. Those who oppose euthanasia propose palliative care, which may arguably relieve the pain and suffering of the patients with appropriate palliative care, may make euthanasia a futile measure. In the UK, evidently people who have palliative care and good hospices are more likely to openly discuss their desire for assisted dying. According to the doctrine of double effect, if a moral act, which is relieving the pain and suffering, leads to a morally bad-side effect, which is shortening the patient’s life, it is ethically acceptable. For example, administration of morphine to provide a comfortable death is ethically acceptable. However, this doctrine is not applicable if the only way to control the pain is to end the life of the patient. This doctrine is established in medical practice and incorporated in criminal law. Even the Roman Catholic Religion upholds the sanctity of life principle. This doctrine has its roots in Roman Catholic moral theology. This doctrine is argued to be ‘euthanasia by the back door’ in respect to discontinuing palliative care and therefore it could be stated that there is no need to legislate.

Ethical arguments for Physician Assisted Suicide in the UK

Lee Goldman and Andrew I. Schafer, Goldman's cecil medicine E-book (Elsevier Health Sciences 2011).
John Keown, Euthanasia, Ethics and Public Policy: An Argument against Legalisation(Cambridge University Press 2018).
Robert L. Holmes, ‘Is therea slippery slope from suicide, to assisted suicide to consensual euthanasia?’ in L.M. Kopelman and K.A. de Ville (eds.), Physician-Assisted Suicide: What are the Issues?: What are the Issues? (Kluwer Academic Publishers 2001) 77.
L.M. Kopelman and K.A. de Ville, Physician-Assisted Suicide: What are the Issues?: What are the Issues? (Kluwer Academic Publishers 2001) 215.

The arguments that are in favour of assisted suicide revolvearound the patient’s autonomy, distress and a sense of futility at continuing the course of a final illness.In Burke, Munby J stated that personal autonomy, which includes the right of self-determination and dignity are fundamental rights. They are recognised by common law and protected under Articles 3 and 8 of ECHR. The protection extends to one’s determination of how to pass closing days and moments of his life and to manage his death. The sanctity of life takes second place to personal autonomy, and might have to be secondary to human dignity.

The BBC reported that 43 people’s lives were ended at Dignitas and Life Circle, in Switzerland in 2018. It also reported a 2014 Freedom of Information request to Directors of Public Health that found that approximately seven (7%) percent of suicides in England involved terminally ill people, which comes to 300 suicides every year. The late right-to-die campaigner, Debbie Purdy stated that "It's not a matter of wanting to end my life; it's a matter of not wanting my life to be this." Similar emphasis on dignity of life is emphasised by Noel Conway, who has motor neurone disease and he can only move his right hand, head and neck. He considered it cruel the rejection of his appeal to the Supreme Court to allow him to be assisted when he had less than six months to live.The practice of euthanasia is to bring end to a patient’s life and prolong suffering. From a realistic perspective, the practice of physician assisted suicide is no different from those practices that are used in end of life care.

Dignity in Dying, which campaigns for assisted dying, seeks to legalise it for only terminally ill people with choices over the manner and timing of the death with legal safeguards and a strict criteria. Lady Black held that there is no violation under the Human Rights Convention. A physician has the obligation to respect human life. Euthanasia does not prevent the physician from respecting the desire of his patient to allow the natural process of death to follow its course in the terminal phase of sickness.Contemporary supporters of assisted suicide draw their argument from John Mill’s harm principle that defends liberty of action, which states that “... the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others”. Supporters argue that the right to live or to die, which does not directly or significantly harm others, should be rationale and voluntary and it justifies assisted suicide or voluntary euthanasia. The right to self-determination is inspired by Mill’s theory and it should apply to medical decision making.

Jackson argues that legalisation could have the effect of extending and enhancing lives of people, whose fear of dying could cause them overwhelming distress. The risks associated could be taken care of by a carefully regulated system that offers more than what the relevant legislation could offer.

Alan J. Sinclair, John E. Morley and Bruno Vellas, Pathy's Principles and Practice of Geriatric Medicine(John Wiley & Sons 2012).
R (Burke) v General Medical Council (Official Solicitor and Others Intervening),[2005] EWCA Civ 1003.
Ibid.
BBC News, ‘What's the difference between assisted suicide and euthanasia?’ (2019) accessed
Ibid.

The legislation should be designed to allow assisted dying in limited circumstances. In respect to faith-based objection to assisted dying, Jackson argues that no person could do anything to persuade a person with religious beliefs and shared objection that assisted dying may be an acceptable response to unbearable suffering. Jackson argues that such persons should recognise that law ought not to impose on others, who do not share his faith; one must also not have their freedom restricted to satisfy a religious tenet. Legalising will open the medical involvement manifold. There would be lower risk and suffering, and increases chances of screening mental disorders and depression. This may reduce the number of assisted suicides.

Conclusions and Recommendations

The choice of assisted dying comes with a fear of abuse of practices with the added risk of normalising and making the choice a default option and a part of therapy. The argument of exposing the patient, who is in a vulnerable position, to high level of risks to their life carries significant weight. This is especially true in cases where they have no mental capacity to make informed decisions, or they are not in a mental or physical capacity to make informed decision about protecting or preserving their best interests pertinent to their life. This is arguably against the fundamental right to life. The patient faces a great dilemma when they are not able to decide on their own and are under duress. So, will it be fair to expose the patient to legally allowed assisted dying? Considering this question in the given context, it is fair that the Suicide Act 1961 makes suicide or any act of assisting or encouraging suicide illegal. A counter argument is that the very context may also act as the reason for the patient to have the choice of assisted dying. It may be justifiable in so far as they still have the mental capacity to make informed decision. The only identifiable common circumstance in the debate is where the patient lacks any mental or physical consciousness.

Abuses of legislation may also occur due to new circumstances that the legislation might have not considered. Just enacting legislation would not be enough and is not a good practice. This is what had happened in Belgium. Even before the law was enacted, there were number of deaths that were considered informal deaths. Euthanasia or assisted suicide was prevalent even before the law. Medical professionals ignored existing measures and safeguards and they were not prosecuted. In these circumstances, the issue is whether the law should be enacted to strictly control the practices and lay down stringent liabilities. Alternatively, more important issue is whether the law will empower the hands of those involved in the practices to expand the practices in many forms, and further weaken the already vulnerable patients. The latter view seems to hold more weigh comparing the possible risks associated with the issues. However, given that number of allegedly practices of assisted dying, for example the prevalence of suicide tourism in Switzerland, the alleged support of medical professionals for legislation and the number of landmark cases and bills introduced, the UK should implement a law that incorporates lessons learned from these events and from other jurisdictions. In order that the supposed bad effects of legislating do not outweigh the good effects of legislating, few factors are to be taken into observation while enacting legislation. They are provided in the next paragraph.

Observing the jurisdictions where assisted dying is legal, few factors are to be taken into observation while enacting legislation. Firstly, there has to be definition of few important terms, both medically

and legally: “unbearable suffering” as is required under the law of the Netherlnds, “terminally ill”, “irreversible unconsciousness”, “grave and incurable condition”. This would enable determination of the degree and categories of illness. Secondly, activism of the judiciary and legislation is needed to create tests to determine justifiable reasoning for physician-assisted suicide. Such tests may be: test of altruistic reasons and test of conscious decision in respect of the assisters, especially the physicians, and test of decision-making capacity in respect to the patient determining whether it was informed, voluntary and free from duress or any kind of pressure or force. The tests are to ensure the elements of capacity and consciousness is intact while forming and exercising the option. Thirdly, detailed legally enforceable procedures are to be prescribed, and medical institutes can lay down internal guidelines in conformity to this legal procedure. Such procedure may include formal procedure of requests. Quantifying it to “persistently requests”, as what is required in the Netherlands, may not be sufficient. There has to be a structural framework, including request and appeal in the case of rejection. The procedure may include a consultation committee of experts in the concerned institutes. This is derived from one of the conditions laid down by law of the Netherlands. They must be designated experts in the specific field as per legal formalities. This will secure not only conscious decisions, but legally and medically justified decisions. Consideration of other factors, such as advance directives for euthanasia needs to be considered. However, relevant tests and procedures need to be in place to examine free will and other relevant circumstances. There should be a centralised agency that monitors and enforces reporting systems in each medical institute. Fourthly, special case procedures should be made in respect to cases involving children. Understandably, varied factors may come into play encompassing all the above factors mentioned. This would be the most complex of the lot. There has to be a high level of moral justification, extreme precaution and care, and high degree of sensitivity to interest of the child and the family and public interests. Conscious decision making capacity and collective conscious decisions of the parents or the guardians are required. Fifthly, exceptional circumstances may arise and so, the legislature has to continuously update and consult to the medical fraternity, experts and social groups that are actively involved in the practice.

It is absolutely necessary to regulate all aspects of physician-assisted suicide. It does not make sense to leave one aspect from regulation and cover another aspect under the regulation. The issue is highly sensitive and complex given the social, medical, moral, and legal characteristics. Everyone deserves dignity and respect for life, but when there is no life in a person, complexity is bound to come in to question as to how to respect his dignity. The option of a high palliative care seems sensible too in this regard. The above-mentioned recommended factors may help in avoiding concerted practices and also abuse of law. It may help in streamlining social expectation in conformity with legal principle. It may help set up a legal framework that may find new ways of preserving the sanctity of life, including the right to live, and the right to live with dignity.

Legislation

The Homicide Act 1957

The Suicide Act 1961

Cases

An NHS Trust and others (Respondents) v Y (by his litigation friend, the Official Solicitor) and another (Appellants)[2018] UKSC 46.

Nicklinson v Ministry of Justice[2013] EWCA Civ 961.

R v Moor [1999] Crim LR 2000 Jul 568-90.

R v Cox (1992) 12 BMLR 38.

R v Moloney [1985] 1 AC 905.

R (on the application of Pretty) v Director of Public Prosecutions [2001] UKHL 61; Pretty v United Kingdom (2002) 35 EHHR I.

R (on the application of Purdy) v Director of Public Prosecutions [2009] EWCA Civ 92.; [2009] UKHL 45.

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Bibliography

Books

Biggs H, Euthanasia, Death with Dignity and the Law (Hart Publishing 2001).

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