Rachel Chen




 

Introduction

Ethical and social debates around medically assisted dying, often used interchangeably with euthanasia and physician assisted suicide, have become focal points of interrogation for the House of Commons. In a recent inquiry by the Commons Health and Social Care Committee, diverse voices from various academic fields discussed the interplay between individual autonomy, the alleviation of long-term suffering, and normative claims around the practice of assisted dying in the United Kingdom and beyond. Against the backdrop of this changing landscape, with more countries legalising euthanasia and medically assisted dying each year, the practice is gaining more attention in the United Kingdom. Discussing the current criminalisation of medically assisted dying, its limitations and its impact, current law fails to provide a comprehensive framework to balance the right to autonomy over one’s life and wider social concerns and physician and patient experience. International legislation of the practice will be discussed, comparing these frameworks with a proposed Medically Assisted Dying Bill in the House of Lords. The limitations of the Westminster system as it relates to the legal challenge of existing laws highlight how this evolving discourse calls for a comprehensive legal framework in the United Kingdom.

 

Attitudes and Criminalisation in the UK 

Throughout 2023, the UK Commons Health and Social Care Committee held an inquiry into assisted dying/assisted suicide. Between May and June, the Committee heard from a variety of medical, public policy, ethics, and advocacy groups to provide oral evidence of the impact of medically assisted dying legislation.[1] Euthanasia, medically assisted suicide, and assisted dying are often used interchangeably. Euthanasia is the act of intentionally ending a life to relieve suffering for example a lethal injection administered by a doctor. Medically assisted dying is the intentional ending of a life to relieve suffering, which applies specifically to terminally ill people. Assisted suicide is the provision of the means necessary to aid someone to end their own life.

 

However, current legislation being proposed in Britain specifically addresses the involvement of a healthcare professional in facilitating the wilful death of a terminally ill person – in other words, assisted dying. In 2021, the British Medical Association voted to change their stance on physician-assisted dying to that of neutrality. Both instances reflect a growing conversation in the United Kingdom around medically assisted dying and changes in wider attitudes supporting the practice as a protection of individual autonomy over one’s death and overall mitigation of long-term suffering. Currently, any form of assisted suicide or death is illegal per The Suicide Act 1961, wherein the encouragement or assistance of suicide in England and Wales makes one liable for manslaughter and up to 14 years of imprisonment.[2]

 

Criminal understandings of harm and offence are complicated by the notion of merciful death and the severe impact terminal health conditions have on individual quality of life. Within legal theory, harm can broadly include a threat to a person’s interests, well-being, property, as well as collective welfare.[3] However, where a consenting adult of a sound mind experiencing a terminal illness expresses a desire to have control over the nature of their death and mitigate their pain, harm in this theoretical sense becomes harder to find. Application of The Suicide Act criminalises doctors and loved ones hoping to ease people’s long-term suffering.

 

Criminalisation in Practice: Dr Moor

In 1999, Dr. D Moor was the first UK physician to be charged with murder in the circumstances of euthanasia.[4] The physician’s injection of a lethal dose of diamorphine, upon request of the patient, was found in agonising pain during a house call.[5] Moor argued for a compassionate, physician-assisted death for the patient in question.[6] During the trial, Dr Moor admitted to having helped other patients die “pain-free deaths,” but never committed murder, and his arrest followed public statements claiming he had no issue helping patients die peacefully.[7]

 

This case raises additional questions as to the purpose of criminal law and balancing individual autonomy and legal morality. Is criminal law always an adequate tool to prohibit immoral conduct? Namely, the facilitating the consensual end of another person’s life? There is a fine line between immoral behaviour, and criminal behaviour wherein the right to basic liberty over one’s life should operate as a prerequisite to the formation of the self.[8] Individuals should have autonomy over their moral agency. Does the right for individuals to be autonomous over their own lives in the case of physician-assisted dying, supersede the enforcement of “right” behaviour and its harms? In Dr. Moor’s case, after just over an hour of deliberations, the jury of the Newcastle Crown Court dismissed his murder charge.  Here, the answer to this complex moral question is in the hands of everyday persons. The jury found that there are instances where the unlawful nature of assisted dying was superseded by practical demands of care and quality of life. The House of Lords has also ruled that the right to a free and autonomous life by the state does not extend to the granting of individual powers over the right to an assisted death.[9]

 

Looking Abroad: How Can the UK Implement MAD Legislation?

This interpretation of the right to privacy in the UK contradicts court rulings and laws in other countries. Switzerland, Belgium, Denmark, and recently Spain and Italy are all European countries which have legalised euthanasia and assisted suicide within a clinical diagnosis of a terminal or incurable and incredibly painful illness.[10] The Netherlands allows children as young as 12 with a terminal illness to request euthanasia, and Belgium and Switzerland currently have no age limit, in the former country a psychiatric evaluation is required. In Canada, where euthanasia and physician-assisted suicide are legal, three Supreme Court cases over the past 70 years argued that criminalisation of the practice infringed on individual rights of life and security of the person, equality, and cruel and unusual punishment. In Rodriguez v British Columbia, Justice Cory notably stated that “the right to die with dignity should be as well protected as is any other aspect of the right to life.” However, in the British context where the judiciary is not granted powers to challenge Acts of Law, and merely interprets their application through the intentions of parliament, the issue of legalising medically assisted dying is purely political. However, a landmark case went to the House of Lords in 2009. Journalist and activist Debbie Purdy petitioned the Director of Public Prosecution’s unclear enforcement of The Suicide Act as an infringement of her right to privacy as described in article 8(2) of The Human Rights Act 1988.[11] As a result, the DPP published an interim policy statement of 16 factors that might incline prosecution in cases of assisted suicide, and 13 factors that incline him not to do so.[12] Instances where the “victim had reached a voluntary, clear, settled, and informed decision” and the suspect was motivated by compassion,” are less likely to be charged criminally.

 

However, this guidance for criminal charges remains vague and does not provide adequate safeguards for those seeking assisted dying from medical professionals. The right to an autonomous life and granting legislation for dying with dignity in the United Kingdom is vested purely in the power of parliament and legislation. A second reading of The Assisted Dying Bill went to the House of Lords in 2021. The bill attempts to revoke S(2) of The Suicide Act, sponsored by Baroness Meacher, and sets out clear standards around the practice of medically assisted dying in the UK. Namely, legal adults may provide a declaration to the High Court to end their own life, they must have a terminal diagnosis with an expectation of death within six months and have two medical practitioners countersign their declaration.[13] Medical practitioners are specified as doctors and must refer the patient to a specialist for a psychological evaluation.[14] Successful completion of the declaration means that the doctor can facilitate medically assisted dying or provide the appropriate means for self-administration of lethal medicine and remain until the patient has passed away.[15]

 

Since its discussion in the Lords in 2021, the Bill has not moved onto the Commons. The proposed Bill also advocates for the right of doctors to conscientiously object to facilitating this practice. Doctors experience criminal liability in current instances of assisted dying, and the BMA has expressed the protection of conscientious objectors to not perform assisted dying should they have strong personal beliefs against the practice.[16]

 

Conclusion

This discourse navigates the intricacies of assisted dying in the United Kingdom, balancing the profound implications ethical considerations, individual lives and search for legal frameworks which align with evolving social attitudes. The criminalisation of medically assisted dying has and will continue to harm those seeking to humanely end their lives, including suicide tourism where individuals seek out this practice in other countries like Switzerland. It is important to look to broader moral and legal arguments in favour of medically assisted dying in the United Kingdom, and the medical community’s emphasis on safeguards and conscientious objection. International contexts provide successful examples and standards around the practice which the UK can, and has, looked towards in the proposition of its legal framework in this area. 

 

[1] Assisted Dying/Assisted Suicide - Committees - UK Parliament’ (UK Parliament Committees: Assisted Dying/Assisted Suicide, 2023)

[2] The Suicide Act 1961 9 & 10 Eliz. 2. c. 60

[3] Wasserstrom RA and Dworkin G, ‘G Dworkin, Paternalism’, Morality and the law (Wadsworth Pub Co 1971)

[4] R. v Moor (David) [2000] Crim. L.R. 31

[5] R. v Moor (David) [2000] Crim. L.R. 31 ibid this?

[6] Ibid

[7] GP Cleared of Murdering 85-Year-Old Patient’ (The Guardian, 11 May 1999)

[8] MS Moor, ‘The Nature of a Theory of the Limits of Criminal Law’ (1997 New York: Oxford University Press UK)

[9] Petty v Director of Public Prosecutions [2001] UKHL 61

[10] Davis N, ‘Euthanasia and Assisted Dying Rates Are Soaring. but Where Are They Legal?’ (The Guardian, 15 July 2019)

[11] R (On The Application Of Purdy) V Director Of Public Prosecutions [2009] UKHL 45.

[12] ‘Homicide: Murder, Manslaughter, Infanticide and Causing or Allowing the Death or Serious Injury of a Child or Vulnerable Adult’ (Homicide: Murder, manslaughter, infanticide and causing or allowing the death or serious injury of a child or vulnerable adult (The Crown Prosecution Service, 2021)

[13] Assisted Dying Bill [HL Bill 13] 58/2

[14] ibid

[15] ibid

[16] The BMA, ‘Physician Assisted Dying’ (The British Medical Association is the trade union and professional body for doctors in the UK.)