Reform Through Parliament

Whilst reform of assisted suicide has occurred through case law it has at best established an unofficially acknowledged status quo, wherein it remains illegal but rarely prosecuted when driven by compassion and undertaken by someone other than a medical profession. This is not a satisfactory position for the law to remain in, it creates a system in which citizens have different rights dependant on personal circumstances.

There have been several attempts to change the law through the parliamentary process, beginning with the Assisted Dying For The Terminally Ill Bill in 2004, which was introduced as a private members bill by Lord Joffe. [23] The bill failed to make it to a second reading in 2006, once again shelving the issue before any constructive debate could take place. The topic was on the agenda for the Coroners and Justice Act 2009,[24] where two provisions were debated before the act became law.

One dealt specifically with the act of assisting a person in travelling to a country where assisted suicide is legal, to remove the illegality of this offence. This failed to become part of the final Act, with some members critical that Parliament had not taken the opportunity to debate such a pertinent issue. [25] Lord Falconer also proposed this amendment whilst the Bill was being debated in the House of Lords, developing safeguards to prevent illegitimate use that extended beyond the fear of prosecution that currently governs such decisions.

His focus appears to have been primarily on the legal aspect of the argument, ‘the law is being marginalised. The law is not being applied by the Director of Public Prosecutions because it plainly no longer fits the current situation’[26] and when faced with an emotive opposition put forward by Baroness Campbell ‘Is this really the future that we wish to offer those who become terminally ill? Those of us who know what it is to live with a terminal condition are fearful that the tide has already turned against us’[27] failed to gain the necessary votes for it to go any further.

It is this distinction between the supporters and the detractors of assisted suicide reform that may explain why, despite recognition that the current law is not sufficient, it is a topic that had not gained much ground, as regardless of how sound the premise of the argument or thoroughness of suggested Bills it is difficult to overlook the personal and inclusive rhetoric put forward by the opposition, particularly when much of it is based on principle rather than form, ’there could be no Bill drafted which could overcome my objections to the principle of allowing assisted suicide.

’ [28] In spite of this Lord Falconer continued to promote the issue, chairing the Commission On Assisted Dying, which contained a comprehensive review of current law and extended the focus into who should qualify for assisted suicide and the precautions required to ensure vulnerable people were not pressured into such. [29] All commissioners but one concluded that current law was inadequate and incoherent, urging Parliament to develop new guidelines to reflect the current state of affairs.

The Assisted Dying Bill[30], derived from the finding of the commission, was subsequently introduced in 2014, with the aim of enabling terminal adults (with a prognosis of less than six months) with the required mental capacity to receive assistance in ending their lives at their request. The Bill contains extensive provisions to address common criticisms: two doctors must be satisfied the person is terminally ill to try and reduce the likeliness of misdiagnoses or inaccurate prognosis, and that they have the required mental capacity and a voluntary, settled intention to go through with the process.

A key difference from previous iterations is that although a doctor prescribes the drugs it is the patient that administers the medication. As of writing the Bill is still making its way through the House of Lords, and is expected to undergo a third reading in September 2015. This is the furthest such a Bill has ever gone, however there are still a considerable amount of stages for it to go through before it could receive royal assent and become law. Stakeholders

The reactions to the Bill from interested parties provide a broad cross section of the arguments surrounding the debate, although they do little to advance either side as they are bound within the context of the organisation in question. Not Dead Yet UK, who are opposed to the legalising assisted suicide, highlighted the risk that vulnerable people may feel under pressure to end their lives, and believe the Bill propagates the idea that disabled peoples lives are not given equal weight, concluding ‘disabled people want help to live – not to die.

’[31] They appear to conflate disabled with terminally ill, and whilst the two are not mutually exclusive it is only the latter the Bill would apply to, which does undermine their argument somewhat. Living and Dying Well, a neutral policy research organisation, were skeptical of the Bill’s underdeveloped safeguards as they did not think it was prudent for specific codes of practice (which were not included) to be developed after the Bill had become law.

They were also critical of the responsibility the Bill would place on medical professionals, who would in essence become both judge and jury, responsible for assessing patients and providing the necessary drugs. [32] Dignity in Dying were of the opinion that the Bill would not lead to an increase in deaths (which is debatable as it would remove the barrier of illegality that may have been acting as a deterrent) and that it would provide peace of mind to those suffering terminal illnesses that the option to end their life was as available to them.

[33] The latter point is interesting as an argument against the idea that the legislation is unwarranted as it provides rights that only oblige a minority; whilst the right to end your life is not a concrete one the ability to do so is within the capability of the rest of the population, and legislating to allow those that cannot do so is merely putting them on equal footing. The opinion of medical bodies is possibly the most important however, given the intrinsic role that their members would undertake if assisted suicide were legalised.

The British Medical Association as an organisation is currently opposed to changing the law, particularly in any manner that would rely on the participation of their members. They did remove the commitment to preserving human life at any expense as an objective in 2012 however[34], which could be seen as a step towards acceptance, as it removes an irreconcilable ideal from the context of the debate.

At odds with this is the opinion of the British Medical Journal (the academic journal of the BMA) which published support for the Assisted Dying Bill,[35] an unexpected stance that suggests that there is not total accord within the association about the issue. International Comparisons It is useful to consider how the matter has been addressed in other countries, as this can provide insight into how theoretical arguments play out in reality.

The first example is that of the US state of Oregon, which enacted assisted suicide in 1997,[36] as that legislation was used as the basis for the current Assisted Dying Bill. The act allows terminally ill people that live in the state to be prescribed lethal drugs to self administer, providing they are over 18, have the capacity to decide and communicate this decision and have terminal illness with a prognosis of no more than six months.

As of 2007 292 people had received prescriptions, and a study addressing the issue of whether the legislation had increased the risk for those considered vulnerable (defining vulnerable as the elderly, women, those of lower education, the poor, the physically disabled, those with psychiatric illnesses and those from ethnic minorities), and found that legal physician assisted suicide had no greater risk of uptake in such vulnerable groups in comparison to the rest of the population.

[37] This does address one of the arguments often touted by those in opposition, who consistently raise the point that the statistics for the elderly and disabled will be disproportionately high as they are considered to be more vulnerable to outside influence. Uptake rates being so low suggest that this is is not correct, although it must be taken into account the fundamental differences in the UK and US health services (insurance based versus free at the point of use) do limit comparisons somewhat.

The next example is Switzerland, a country whose laws are of considerable importance as it is where the vast majority of “suicide tourists” travel to, specifically Dignitas, the medical organisation that assists those with severe illnesses to die. There is no explicit law in Switzerland that legalises assisted suicide; the Swiss Criminal Code Article 115 states that it is only illegal if done with selfish motive.

[38] Additionally there are no specific requirements for those seeking assisted suicide to be terminally ill and have a short term prognosis either, and as of 2009 out of the 115 British citizens that had died at Dignitas 8 have not had medical conditions considered to be terminal. [39] This shows a system that has expanded beyond that which the UK is currently debating and can provide insight into how attitudes regarding assisted suicide can be influenced by the legality, as the link between illegal and immoral is strongly intertwined.

In a 2011 referendum 85% of inhabitants of Zurich were in favour of not implementing a ban on assisted suicide and 77% of Swiss doctors were in favour of the principle. [40] Such high support could be hailed as a consequence of the success of the system, however it may also be a result of a society that has never had to equate the idea of assisted suicide with illegality, where the option could be discussed openly with their physician and was always seen as another, admittedly more extreme, palliative tool.

Progressing further along the spectrum of how developed a countries commitment to assisted suicide has progressed is the example of the Netherlands, where both assisted suicide and euthanasia have been legalised under the Termination of Life on Request and Assisted Suicide (Review Procedures) Act in 2002.

[41] Under the slippery slope argument this should have lead to a considerable uptake, however since the introduction of the legislation only around 1/5 of the requests for such procedures have been carried out,[42] which implies that control mechanisms in place are working, and the rate of physician assisted dying has decreased by a moderate amount every year. This suggests that the argument so often relied upon by opponents to changing the law becomes a logical fallacy when confronted with real world applications.

Conclusion The aim of this essay was to consider whether the law on assisted suicide in England and Wales is in need of reform, and it has done so by examining past and current reforms that have taken place through case law and through Parliament, before considering the debate in a wider context to establish what the issues surrounding the topic may be and how such matters have been addressed in other countries.

It is evident that the law on assisted suicide is in urgent need of reform; as it currently stands the validity is challenged by the implicit sanctioning of suicide tourism (demonstrable by the low prosecution figures of the DPP) and the continued challenges under the ECHR.

Additionally allowing such legal ambiguity to exist creates a two tier system where those who have the financial and personal resources to pursue assisted suicide in another jurisdiction are subject to different rules than those who do not, threatening two of the key tenants of the Rule of Law. It is evident that change in this area must come from Parliament, however their unwillingness to bring the issue to the forefront due to its polarising nature suggests that such uncertainty in the law may remain for the foreseeable future.