Legislation to permit assisted dying will be debated in Parliament this week, after hitting the headlines at the weekend. Dr Alexandra Mullock explains the legal background and some of the issues Peers and MPs will need to consider.
Lord Falconer’s Assisted Dying Bill – due to be debated in the House of Lords later this week – would legalise physician-assisted suicide for terminally ill adults, provided they are mentally competent and expected to die within six months.
Previous attempts to legalise assisted suicide and/or euthanasia have all failed, but a decision by the Supreme Court in the Nicklinson appeals has sent a message to Parliament that human rights implications should not be ignored.
The late Tony Nicklinson sought a declaration that it would be lawful for a doctor to give him a lethal injection, or to assist him in terminating his own life, by virtue of the common law defence of necessity. Alternatively, Mr Nicklinson asked the court to declare that the current law (regarding murder and assisting in suicide under the Suicide Act 1961) was incompatible with Article 8 of the European Convention on Human Rights, which has been interpreted to include a right to choose how to end one’s life.
The High Court rejected these arguments. Mr Nicklinson then refused all food and medical treatment, dying a few days later. But the legal battle was continued by Mrs Nicklinson and another man, Paul Lamb, who applied for the same relief as Tony. A third man, Martin, wants a carer or health care professional to travel to Dignitas in Switzerland with him, but such a person would risk criminal prosecution according to the current prosecution policy. Martin sought an order to compel the DPP to clarify and modify her policy so that a compassionate carer, doctor or nurse could assist him. Martin’s claim also failed in the High Court but, unlike the others, he won a partial victory in the Court of Appeal.
The Supreme Court rejected the appeal of Nicklinson and Lamb (7:2), but, significantly, five of the justices, including Lord Neuberger, agreed that it would be possible to make a declaration of incompatibility (under section 4 Human Rights Act 1998) in relation to the ban on assisted suicide in the future, if Parliament fails to satisfactorily address this issue.
Dissenting, Lady Hale and Lord Kerr would have made the declaration of incompatibility in this case. The other four justices held that a declaration should not even be considered, as this is a matter entirely for Parliament. Although Lady Hale and Lord Kerr were unable to persuade their colleagues that the time was right to issue a declaration of incompatibility, the judgments of the three justices who sat in the middle ground indicated some support for possible legal change.
Lord Neuberger indicated that the grave and significant interference with the appellants’ Article 8 rights could not necessarily be justified in order to continue a blanket ban on assisted suicide. He highlighted the significant moral and legal distinction between euthanasia and assisting in suicide. Comparing the issue to other end-of-life dilemmas, Lord Neuberger suggested that withdrawing life-sustaining treatment, which the current law permits, is a ‘more drastic interference in that person’s life and more extreme moral step’ than assisting in a suicide where the person wanting to die is clearly in command.
He also suggested that notwithstanding concern about weak and vulnerable people who may not possess “a voluntary, clear, settled and informed decision to commit suicide”, but who may feel indirect or direct pressure to ask to die, a scheme featuring regulatory safeguards and a before-the-event appraisal of the request to have an assisted suicide could be a feasible and preferable alternative to the current approach, which leans against prosecution and assesses the facts surrounding the assisted suicide retrospectively.
Lady Hale argued that there is sufficient reason to believe that the Suicide Act is not compatible with the European Convention because it allows no exceptions. On the fundamental justification for interfering with Article 8 rights for the protection of vulnerable people, Lady Hale stated that while this concern is sufficiently important to justify a general ban, it is ‘difficult to accept that it is sufficient to justify a universal ban’.
Lord Kerr agreed, saying there is no rational connection between the ban on assisted suicide in order to safeguard the vulnerable – who may be able to commit suicide unaided in any case – and the grave interference with Article 8 for those who are unable to act unaided.
All nine justices agreed that the DPP should not be compelled to amend the prosecution policy, but the court indicated that the inconsistency revealed by Martin’s argument should now be addressed. The judgement also includes discussion of the sanctity of life, slippery slope arguments and complex constitutional and human rights questions regarding the limits of the courts’ deference to the legislature.
Most crucially, we now await Parliament’s response to the challenge thrown down by the Supreme Court. Lord Falconer’s Assisted Dying Bill will not address the issues concerning Nicklinson, Lamb and Martin because the Bill would only provide physician-assisted suicide for terminally-ill people expected to die within six months.
But those who are eligible for assisted dying are also vulnerable to it and so the six-month life expectancy provision is effective in restricting the vulnerable group.
However, as Lord Neuberger pointed out, those who face many years of suffering may have a much stronger case for being assisted in suicide. Interestingly, some of the judgments suggested how such requests to die might be assessed. For example, Lady Hale suggested it might be a matter for the High Court to consider whether the death wish is voluntary, clear, settled and informed. By contrast, Falconer’s Bill envisages a system where doctors assess the request.
It will be extremely interesting to see how these complex and ethically contentious matters are dealt with, first in the House of Lords and then, perhaps, in the House of Commons, where the main parties have all indicated that MPs should be free to vote with their conscience.