Should There be a Right to Die in the UK?

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Introduction

The “right to die” in the UK has been a question that has engrossed politicians, the media and judges over recent years where high-profile cases including Dianne Pretty[1], Debbie Purdy [2] and Tony Nicklinson[3] have bought much debate and discussion. In this year the debate was rekindled when Noel Conway, a 67-year-old man suffering with a terminal illness challenged the law on assisted suicide in the High Court. This article will outline the current legal position in the UK and discuss public policy issues and the human rights of the individual on this controversional subject.

Current Legal Position in the UK

The current legal position in England and Wales is that it is against the law under the Suicide Act 1961[4] to assist or encourage another person’s suicide and is punishable by up to 14 years imprisonment; the position in Northern Ireland is very similar[5]. However, the position in Scotland is somewhat confusing as there is no definition of what assistance actually is and what it is to assist someone in committing suicide.[6] In order for a prosecution to take place in England, Wales and Northern Ireland, the Director of Public Prosecutions (DPP) must give consent based on evidence and circumstances in individual cases; there is no such guidance in Scotland.

Public Policy Issues

It is the role of Government to protect its individuals and to discharge its powers akin to a modern democratic society. The aim of the state should be to protect the rights and freedoms of individuals.[7] Debate in the 2015 Parliament[8] highlighted some of these public and social policy issues, and attempts to clarify the law were made by way of two Private Members Bills. The proposals argued in favour of legalizing assisted suicide where terminally ill competent adults could request assistance in ending their lives under the supervision of medical professionals. Both attempts failed: the first bill ran out of parliamentary time in The House of Lords[9] and the second was heavily defeated in the House of Commons[10]. Arguments against included that the protection of the vulnerable may be undermined and individuals may feel under pressure to end their lives so as not to be a burden on their family. This claim could also be seen as a ‘slippery slope’ concept concerning medical ethics.[11] If a society allows voluntary euthanasia where does it draw the line? Research into palliative care treatments may decrease and consideration should also be given to the ‘human error’ scenario where a doctor’s diagnosis and future prospects for life may be incorrect. Medical ethics is governed by the International Code of Medical Ethics[12], which includes “a physician shall always bear in mind the obligation to respect human life”. If this obligation is eroded it could have significant damage to the doctor/patient relationship and the duty of trust.

Human Rights Perspective

Previous cases have used the argument that to prevent them from being assisted into ending their lives is against their human rights and that the Suicide Act 1961 is not compatible with the provisions in the European Convention on Human Rights. The arguments put forward in these high-profile cases are consistent in their nature and concern the right to life[13], the right to be free from inhuman and degrading treatment,[14] the right to freedom of conscience and religion,[15] the right to respect for private life[16] and the enjoyment of the rights and freedoms set forth in the Convention without discrimination on any ground[17].

The arguments under the human rights banner are twofold: the ethical argument and the pragmatic argument. In the case of the ethics argument, the quality of life is the key aspect. The cases discussed earlier were all based on that the individual’s quality of life had been eroded through a terminal illness and that they should be able to choose when and how they die. The pragmatic argument is that there are certain practices that are already in place such as withholding and withdrawing treatments and palliative sedation that can speed up death.   Therefore, it is arguable that practices are already in place relating to forms of active euthanasia albeit not in name.[18]

Do we Need Changes to the Law? 

The recent case of Noel Conway has again sought to ignite the pros and cons of this complex and controversional area of law. Previous attempts to change the law, which is over 50 years old, have been unsuccessful. Furthermore, the UK’s position may appear outdated and not aligned to 21st century philosophy and in-line with the legal position of other Western societies. The only progress that has been made is evident in the Purdy case[19] where The House of Lords held that the Department for Public Prosecutions (DPP) must produce a list of factors which shall be considered before bringing a prosecution under the Suicide Act[20]. Guidelines issued in 2010 were updated in 2014 and include a reference that a prosecution is less likely to be in the public interest if “the victim had reached a voluntary, clear, settled and informed decision” and outside actions “were of only minor encouragement or assistance”.[21]Whilst this is a useful development in my opinion, there are three areas which should be examined before any changes in the law can be considered.

Firstly, the pulse of the general public opinion needs to be considered.  Recent research shows that depending how the question is worded, the majority of the UK surveyed support some form of assisted suicide. Support has increased over time from 69% in the mid 1970’s[22] to 76% in 2013[23] for a change in the law under certain circumstances[24]. It would appear there is significant appetite for a change in the law.

Secondly, what can we learn from legislation in other jurisdictions where assisted suicide is legal? Switzerland is widely known where people can legally carry out assisted suicide as long as the assister does not have selfish motives. This is not restricted to Swiss residents and allows foreign nationals to travel to Switzerland to carry out their wishes regulated by the Swiss Penal Code (1942)[25]. Other jurisdictions to consider on their approach include the Netherlands, Belgium and the US state of Oregon where the criteria includes residency status and assistance guided by a physician.[26]

Thirdly, Parliament has to take the lead role on any changes to the law and not rely on the judiciary to develop the law on this highly emotive subject. In the noted high-profile cases of Pretty, Purdy and Nicklinson, the courts have been loathed (rightly in my opinion) to make new law on the hoof as it is the job of Parliament to make legislation and the judiciary to apply it. Without a full debate in Parliament and the possibility of law changes we may well see further court applications challenging that the current law is incompatible with human rights laws. In the case of Nicklinson, Lord Neuberger held that “Parliament now has the opportunity to address the issue of whether s.2[27] should be relaxed or modified….and there is a real prospect that in a further, successful application, a declaration of incompatibility may be made…”[28] by the courts. It is anticipated that an Assisted Dying Bill will be reintroduced in the House of Lords for debate in the 2017/19 Parliamentary session[29].  

Conclusion

 If a change in the law is the way forward Parliament must make this decision and satisfy the will of the people after consultation. The risks previously identified appear to be guarded against looking at the model used in The Netherlands[30] which is strictly regulated. We may see further challenges on the legislation and its compatibility ‘with the right to life’[31]and a challenge may be successful which would leave the judiciary usurping the powers of Parliament.[32]


[1] R (on the application of Pretty) (2002) 35 E. H. R. R. 1.

[2] R (on the application of Purdy) v DPP [2010] 1 A. C. 345.

[3] R (on the application of Nicklinson) v DPP [2015] A. C. 657.

[4] Suicide Act 1961, s 2(1).

[5] Criminal Justice Act (Northern Ireland) 1966, s 13.

[6] ‘Assisted suicide law in Scotland ‘needs clarity’, MSPs told’ (13/01/15) available at www.bbc.co.uk/news/uk-scotland-scotland-politics-30779817 accessed on 21/07/17.

[7] Dan Morris ‘Assisted suicide under the European Convention on Human Rights: a critique’ [2003] 1 EHRLR 65.

[8] ‘Debating the right to die and assisted suicide: Key issues for the 2015 Parliament’ (2015) available at http://www.parliament.uk/business/publications/research accessed on 21/07/17.

[9] Assisted Dying Bill [HL] –Lord Faulkner available at www.srvices.parliament.uk/bills/2014-15/assisteddying.html accessed on 27/0717.

[10] Assisted Dying Bill – Rob Morris available at www.apps.groupdocs.com/document-viewer/Embed/07c23c89c456510f7aa3e64a61fd2bb6d83bd0f8c93 accessed on 27/07/17.

[11] ‘Euthanasia and assisted suicide – Arguments’ (11/08/14) available at www.nhs.uk/Conditions/Euthanasiaandassistedsuicide/Pages/A accessed on 21/07/17.

[12] WMA International Code of Medical Ethics (30/09/06) available at www.wma.net/policies-post/wma-international-code=-of-medical-ethics/.

[13] European Convention on Human Rights, art 2.

[14] ibid, art 3.

[15] ibid, art 9.

[16] ibid, art 8.

[17] ibid, art 14.

[18] ‘Euthanasia and assisted suicide –Arguments (n 10).

[19] R (on the application of Purdy) v DPP [2010] 1 AC 345.

[20] Suicide Act 1961, s 2(1).

[21] The Economist ‘A matter of life or death’ (n 7).

[22] ‘The current legal position on assisted dying’ available at www.demos.co.uk/476_CoAD_FinalReport_158x240_1_web_single_NEW_p  accessed on 21/07/17.

[23] W. Dahlgreen ‘Three in four support changing assisted dying law’ available at www.yougov.co.uk/news/2013/12/16 three-in-four-support-changing-assisted-dying-law accessed on 29/07/17.

[24] W. Jordan (06/07/17) ‘Majority of public would probably consider assisted dying’ available at www.yougov.co.uk/news/2014/07/06majority-public-would-consider-assisted-dying-some/ accessed on 28/07/17.

[25] n 22.

[26] ibid.

[27] The Suicide Act 1961.

[28] n 8.

[29] S. Madden ‘Protesters join Noel Conway in Telford as he Continues Fight for Right to die’ (17/07/17) available at www.shropshirestar.com/news/local-hubs/shrewsbury accessed on 21/07/17.

[30]Dan Morris ‘Assisted suicide under the European Convention on Human Rights: a critique’ [2003] 1 EHRLR 65.

[31] European Convention on Human Rights, art 8.

[32] Seamus Burns ‘Public/Human Rights: The death of humanity?’ [2012] 162 NLJ 1146.

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