There are few more emotive topics than assisted suicide, or the “right to die”. It is an area where law, medical ethics and regulation, religious belief and personal moral values collide. This is a brief overview of the state of the law; the issues that arise; and the types of work that lawyers find themselves involved in.
Should someone who is terminally ill, with only months to live, be permitted to have someone assist them to end their own life? If this is not permitted, they may be tempted to take their own life before they become too ill to do so, losing the chance of months more life. They may prefer this, rather than waiting until they are too ill to kill themselves without help, and risk a friend or loved one being prosecuted for providing that help. Or, perhaps worse still in the individual’s eyes, dying a drawn-out, painful and undignified death.
If assisting someone to die was permitted when they are terminally ill, why stop there? What about those with life-long severe disabilities, perhaps caused by a stroke or in a serious accident? Such people are not terminally ill but they may regard their lives as intolerable and yet be incapable of ending them without help. Should they not be permitted to access that help without the person who assists them risking a lengthy jail term?
Suicide is not a crime. Assisting another person to kill himself is, however, a criminal offence, attracting a maximum prison sentence of 14 years.
Most readers will have seen the press coverage surrounding the “right to die” litigation which reached the Supreme Court in June 2014. Two claimants, neither terminally ill, but both severely disabled and utterly dependent on others for their care, argued that the current state of English law breached Article 8 of the ECHR, the right to respect for private and family life.
The Supreme Court debated the issues for months, and all nine judges delivered separate judgments, with significant disagreements.
In short (and at the risk of oversimplification!) the existing law was ruled to be compliant with the ECHR. Several judges, however, urged Parliament to revisit the issue and warned that the Court may be more inclined to intervene if the legislature does not do so.
How does this apply in practice?
Those representing private individuals, doctors, care organisations, local authorities, the police, charities and campaign groups may all be drawn into this area. Doctors are daily faced with issues of how to treat those reaching the end of their lives. If a doctor prescribes a pain relieving drug knowing that it will shorten a patient’s life, the purpose of the prescription becomes crucial. If it is intended to relieve pain, but has the incidental effect of shortening the patient’s life, that is not a crime. But if a patient, or family member, has asked for something to “ease their passing”, what then was the purpose of the prescription?
Since the passing of the Mental Capacity Act 2005, anyone can write an “Advance Decision” – often known as a “living will”. Examples are available online, and not all of them are of a very high quality. I have had the dubious pleasure of a 30-hour weekend preparing for an urgent Court of Protection hearing to rule on the precise meaning of a poorly drafted Advance Decision, largely lifted from the internet. The patient was on the verge of losing capacity, while his Advance Decision had a cut-off date that was about to expire! The patient’s family wanted his ventilation removed, arguing that this was his wish. The professionals being asked to perform this (fatal) action were far from certain of their position. A better drafted document would have spared his family the angst of the courts becoming involved in the most sensitive and personal matters, at what was already a desperately difficult time for them.
The long-term disabled (such as the claimants in the Supreme Court case), while not terminally ill, may refuse nutrition and hydration. A patient with capacity can take that decision and it must be respected. As the patient weakens, how clear can their carers and doctors be that they still have that capacity? What if there are disputes between loved ones, friends and carers about what the person really wants? These are all fertile grounds for dispute and risk severe consequences for professionals who misunderstand their obligations.
There are many controversies in this area. If the “right to die” were introduced by legislation, there are concerns about pressure being placed on those who are very sick by unscrupulous relatives, or even the very sick simply believing that the world would be better without them. The religious sensitivities are clear. Many of the medical profession argue that modern standards of palliative care remove the need for such legislation (although that is not a unanimously held view).
Lord Falconer’s Assisted Dying Bill has currently stalled in the House of Lords, and is highly unlikely to pass before the election. The issue is not, however, going away. Nor are the varied and fascinating ways it can impact on day to day practice.
Philip Grey is a barrister and associate at Mills & Reeve