Alternative Imprisonment – The Law on Assisted Suicide

At present the law on assisted suicide in the UK is fatally flawed with too much resting upon prosecutorial discretion and artificial distinctions leaving those most vulnerable most alienated. Proposals have been made to reform the law in this area but these plans will not go far enough in guaranteeing the human right to die. In this article I shall outline present failings and the flaws in future proposals and suggest reforms that will achieve adequate recognition of the right to die.

The current legal position

Section 2 of the Suicide Act 1961 rendered aiding, abetting, counselling or procuring the suicide of another a criminal offence despite section 1 abrogating the criminality of self-directed suicide. Section 4 affords prosecutorial discretion to the DPP. The law was amended in the Coroners and Justice Act 2009 section 59 stating that a person commits an offence if “D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and D’s act was intended to encourage or assist suicide or an attempt at suicide.” Notably the offence may be committed regardless of whether suicide actually occurs. Section 2A covers a form of vicarious liability derived from arranging for another individual to encourage or assist in suicide.

In 2009 the House of Lords in R (on the application of Purdy) v DPP1 required the CPS to clarify its approach to prosecution. The result has done little to assist the situation. The guidelines2 clearly state that the law has not changed and assisting suicide remains an offence. The present position as such offends the principle of legal certainty, a core tenant of the rule of law. One may argue that the question of legality is unquestionably resolved but to do so avoids the true basis of this concept; namely the ability to accurately plan and pre-judge social interaction and personal conduct. The law ought not to adopt a position whereby individuals are left to determine their actions solely by reference to prosecutorial discretion that operates on a scale of likelihood not certainty. When the criminality of an action and the attitude towards prosecution pull in opposite directions profound uncertainty arises and adversely impacts individual decision making.

For the CPS to prosecute a Full Code Test must be satisfied requiring sufficient evidence and that the prosecution is in the public interest. Too much turns on the latter element. The evidential component is unlikely to be in issue. Defendant’s who have escorted relatives abroad to die have done so plainly. Yet a possible consequence of using a full code test as the legal measure is that it may result in assisted suicides taking place in secret removed from medical safeguards on competence and court approval and in manners less humane than the administration of lethal drugs. In addition the further and determinate question is one of public interest and by preferring the issue to be dealt with by parliament, the Supreme Court’s acquiescence has permitted a framework whereby the position is not settled but rather open to reevaluation by the CPS. One might argue that the CPS merely decides whether an assistant is prosecuted and therefore does not prevent a suffering individual from dying in the manner of their choosing. But fear of prosecution adversely affects the participation of assisting parties and engineers a conflict for the individual seeking to die between the knowledge that their wishes may leave relatives open to prosecution and the necessity of dignified death. The CPS wields more power in the decision making process than may initially be appreciated. Public interest is an inherently flexible concept and the guidelines indicate that each case must be taken in turn. The position was exacerbated following the House of Lords decision in R (on the application of Pretty) v DPP3 in which it was

held that the DPP had no power to give an undertaking not to prosecute a future crime. Better a unified policy on the matter than the uncertainty inherent in the law as it presently stands.

In 2014 the UK Supreme Court rejected an appeal in R (on the application of Nicklinson and another) v Ministry of Justice4. Five Justices concluded that the court had the constitutional authority to make a declaration of incompatibility but only Lady Hale and Lord Kerr viewed the blanket ban as an issue requiring a declaration of incompatibility. Subsequently in appeals to the ECtHR the cases were also rejected. Further in the case of R (o.t.a A.M) v. General Medical Council5 the High Court held that GMC guidance to staff that limits action to providing information on the legality of assisted suicide and the availability of sedation and palliative care did not infringe the applicant’s Article 8 right to private life. Section 2 of the Suicide Act has been deemed compatible with Article 8 even as a blanket ban. The derogation from the prohibition comes in the judicial recognition of the doctrine of double affect by the House of Lords in Airedale NHS Trust v Bland6 whereby treatment may be withdrawn even if death was an inevitable result; drawing a formalistic distinction between acts and omissions that restricts modes of euthanasia to inhumane starvation. Further Lord Sumption in Nicklinson refers to pain management which may lead inexorably to death as a further application of double effect; creating a further classification of cases based on the presence of pain that can be validly treated. A further issue exists in the relationship between murder, manslaughter and assisted suicide which isolates those who cannot self-administer. The distinction reveals the inadequacies of using discretion as de facto determinate of unlawfulness because though captured within the same two-part test an action falling on the murder side of the technical distinction attracts a greater likelihood of prosecution. On a semantic note the use of rigidly labeled offences and associated stigma fails to do justice to the spectrum of individual conduct and motive present within a given category.

The current law mirrors the tone of social discourse that places dying in the realm of legal privilege rather than human right. The idea that the right to die is one capable of being legally granted perversely suggests that society is the final arbiter of rights that are more truthfully based on individual humanity. Instead of recognising that this right applies to all individuals the present law is inhibited by knotty legal distinctions that ultimately fail the individuals who ought to be at the centre of the issue; permitting only those with the ability to take the required self-action full enjoyment of their human right.

Lord Falconer’s Assisted Dying Bill

The Assisted Dying Bill7 seeks to decriminalise assisted suicide and provide a strict regulatory framework for the timing of declarations, the status of individuals who may receive drugs and those who may provide for the administration of such drugs. The Bill represents a step forward and conducts the balancing exercise, that the Supreme Court saw itself unfit to address, between the recognition of a right and the need for safeguards to ensure that all actions are taken to allow for the exercise of the right rather than the abuse of a sick individual. Valuably the Bill also expressly permits conscientious objection. However there are a number of issues with the proposals.

Chief amongst these difficulties is the terminally ill requirement found in section 1 of the Bill. Requiring terminal illness places an arbitrary limitation on human freedom. Though placing a medical limitation on those to whom the law may apply can be viewed as a concession to broader public concerns of potential abuse, drawing a distinction between those “reasonably expected to

die within six months” and those subject to long and torturous existences is unsustainable. The right being recognised is one of individual autonomy and the limitation in the Bill simply affords an alternative artificial constraint. The law ought to recognise the right of all individuals to die, not the right to die in a restrictive manner and at a time that the law approves as this takes any reform only somewhat further than the present position by retaining artificial delimitations that prioritise safeguards over universal rights.

There are two further issues in the propositions in section 4 Assistance in Dying. The first is the use of ‘the attending doctor…may prescribe’ which appears to afford doctors a discretion that puts up a barrier to the exercise of the right. Aside from the question of conscientious objection one might argue that in situations where the decision is without medically legitimate grounds for assisted suicide such as pain or progressive immobilisation and is based on purely psychological factors practitioners ought to remain free to deny treatment. However patient autonomy ought to be prioritised over medical beneficence and this issue therefore speaks of a need to reassess what qualifies as a medically relevant factor and more broadly of a persistent failure to equalise the status of physical and mental factors in treatment and policy considerations. The UK courts are trending towards a recognition of individual autonomy such as in the recent case of Montgomery v Lanarkshire Health Board8 and this trend should continue into assisted dying reform. The latter issue is that the provisions only permit the doctor to implement a method of self-administration and “Subsection 4 does not authorise an assisting health professional to administer 
a medicine to another person with the intention of causing that person’s death,” regardless of how profoundly the patient might wish for the doctor to do so. Retaining distinctions between self and third-party administration perpetuates a legal position that renders those in vegetative states or with advanced motor neuron conditions most abandoned; beyond the remit of even newly reformed law.

Proposals

The law on assisted dying ought to permit the provision of drugs required to commit suicide to those who have made a reasoned, conscious and fully informed decision to utilise them; the current permitted method of self-starvation is dehumanising. Doctors and relatives ought not to face prosecution for assisting suicide, and the former ought not to fear being struck from the register by the GMC for acting in their patients best interests because the assessment of best interests is for the patient not the court, parliament or any other body; the Mental Capacity Act 2005 adequately sets the approach to best interest decisions. In conjunction with this facet equilibrium must be achieved between psychological and physical factors in the process of medical assessment and though this cannot be manufactured by legislation it can be promoted by abandoning requirements for terminal illness and a six month death projection that renders the issue entirely physical. In all instances suitable medical procedures such as treating physical and psychological symptoms must be followed but the law must nonetheless progress to support rather than stigmatise assisted suicide as a course of treatment. The law of murder and manslaughter also require contemporaneous reform to recognise mercy killing as a defence to murder and remove the formalistic distinction between assisting suicide and committing murder that places those with the worst illnesses beyond humane assistance. All of these changes must be codified to create a rule of law adherent framework and avoid the current failings that allow the issue to turn on prosecutorial discretion.

Conclusion

In sum the present legal position is unsatisfactory and in need of urgent amendment. The Supreme Court and ECtHR could not as a matter of legal reasoning and constitutional orthodoxy have altered the position regardless of how pressing the need for recognition of this human right. Parliament has been left to address the situation and Lord Falconer’s Bill provides a vital step forward though retaining some of the arbitrary distinctions that prevent the law giving full voice to the right in question and create a morally objectionable position. Formal checks and procedures are needed to prevent abuse but the distinctions undermine the right in question and provide no such safeguards. The proposals outlined ameliorate damaging formal distinctions and ensure greater alignment of the law with moral imperatives.