A step closer to the legalisation of assisted suicide?

5 January 2012 by Daniel Sokol

Debby Purdy and husband

The Commission on Assisted Dying, set up in September 2010 and chaired by former Lord Chancellor Charles Falconer, has issued its monumental report on assisted dying in England and Wales.

The Commission was funded by two supporters of assisted suicide, author Terry Pratchett and businessman Bernard Lewis, and despite reassurances that the running and outcome of the Commission were independent, some individuals and groups opposed to the practice regrettably refused to give evidence to the Commission.  Still, the range and quantity of the evidence, which included evidence gathered from international research visits, qualitative interviews and focus groups, commissioned papers, and seminars, is impressive and can be read and watched here.

The report recommends a change in the law, which it deems “inadequate and incoherent”, to allow terminally ill, mentally competent adults to end their lives with the help of two independent doctors.  It does not, therefore, extend to the even more controversial issue of euthanasia, in which the healthcare professional administers the lethal substance, and stays clear of minors and the mentally incapacitated.

In that respect, the report is cautious and pragmatic in its attempt to stimulate a change in the law.  In the eyes of society, the assisted suicide of already-dying competent adults (permitted in Oregon, Switzerland and Luxembourg, for example) is more palatable than the euthanasia of chronically ill children (permitted in the Netherlands).

Further, the practical difference between assisted suicide and non-voluntary euthanasia (i.e., ending the life of an incompetent patient who has not made a decision on the matter) reduces the danger of “slippery slope” arguments.  It is difficult to argue for the presence of a greasy, ominous slope connecting the two practices since a clear demarcation, or step, lies between them:  in assisted suicide, the sufferer takes the lethal drug himself.  It is not physically administered by a third party, as it is in euthanasia.

The law

In England and Wales, assisting suicide is an offence under section 2(1) of the Suicide Act 1961, holding a maximum sentence of 14 years.  The European Court of Human Rights has held, notably in Pretty v UK (2002) 35 E.H.R.R. 1  that although such a blanket ban on assisted suicide engages Article 8 of the Convention, such a ban may be “necessary in a democratic society” for the protection of the rights of others and hence justified under Article 8(2) of the European Convention on Human Rights (the right to private and family life).

This is small comfort for GPs and other healthcare professionals who may well shudder at the prospect of being asked by dying patients for advice on how to end their lives.  A helpful answer may be an unlawful one.  This discomfort and uncertainty, on the part of both doctor and patient, combined with a lack of clarity over when prosecution is warranted (even after the landmark case of R (on the application of Purdy) v DPP, form part of the reason why the report calls for a new statutory framework.

Many people oppose assisted dying not because of any intrinsic immorality but because of the risk of abuse or unwanted societal side-effects.  Whatever the system in place – these people may argue – vulnerable persons, subject to more or less subtle pressures, may feel compelled to die.  Gradually, a right to die would morph into an obligation to die.

Addressing this concern, the report concludes that “it is possible to devise a legal framework that would set out strictly defined circumstances in which terminally ill people could be assisted to die” while protecting vulnerable people.  And so the report suggests a number of safeguards, ranging from medical advice and support to a settled intention to die (i.e., a minimum of 2 weeks from request to assisted death) to the safe storage and transportation of the lethal drugs to the establishment of a national monitoring commission (an independent statutory body reporting o the Department of Health).

Importantly, it acknowledges that assisted suicide must co-exist with high quality health and social care services.  The lawfulness of assisted suicide should not signal the death knell of palliative care.

The report recommends that the decision to permit assisted suicide should rest on health and social care professionals rather than a tribunal or legal body.  However, the report advises that these professionals should not notify patients of the availability of assisted dying.  The rationale for this is clear – it reduces the likelihood of putting undue pressure on the patient – but it sits uneasily with the notion of informed choice and respect for patient autonomy.

The doctor-patient relationship

Another fear about legalising assisted suicide, especially if it requires the involvement of doctors, is that it would alter the doctor-patient relationship.  This is a valid concern but, as Jane O’Brien commented (in her personal capacity rather than as Head of Standards and Ethics at the GMC), other “big seismic changes” such as the Abortion Act 1967 did not cause the heavens to fall.  The profession is, by and large, not polarised about the Abortion Act, and one view is that, with time, assisted suicide would also become accepted, or at least tolerated.  The report also addresses the issues of training and emotional support for healthcare professionals, as well as their right to conscientiously object to assisted suicide.

The report, through focus groups, heard the views of younger, older, terminally ill, and disabled persons.  “Overall”, the report states, “the participants in the two focus groups with disabled people were more likely to be wary of the legalisation of assisted dying […] than participants in the focus groups with older or terminally ill people.  However, despite these concerns, a majority of the disabled participants thought there were some instances in which assisted dying should be permissible”.  Some disabled participants considered the practice morally permissible but opposed a change in the law.

Despite the 415 pages of the report, the authors do not provide details of all aspects of the proposal.  They do not, for example, recommend a clinical protocol or code of practice on the types, doses, or methods of administration of the medication.  However, the report is sufficiently detailed to paint a picture of a world in which assisted suicide is lawful.  It is, in my view, a more humane and less painful world than the current one.  The commission has fulfilled its role.  The ball is now in Parliament’s court.

Daniel Sokol is an Honorary Senior Lecturer in Medical Ethics at Imperial College and a pupil barrister at 1 Crown Office Row.  He is the author of “Doing Clinical Ethics:  A Hands-on Guide for Clinicians and Others”, published by Springer.

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• What is a life worth living? Further analysis of “M” – Daniel Sokol
• States Not Obliged to Assist Persons Wishing to Commit Suicide – Antoine Buyse
• GMC to announce policy of striking off doctors who prolong the lives of terminally ill patients against their wishes [updated]
• New assisted suicide guidance “focused on motivation of the suspect rather than characteristics of the victim” – DPP [updated]
• Previous posts on the Pretty and Purdy cases ,h