Methodology: Literature review.
What follows is essentially a consideration of the current law on physician assisted suicide (PAS), with an appraisal of the arguments advanced supporting the practices and those condemning them. The compelling reasons for allowing a choice of death to those who seek it are appraised early on, as are the objections commonly found across many jurisdictions. Notably, scrutiny is given to the Oregon experience of the past decade, where it will be seen that many of the worries relating to abuse of the vulnerable have apparently not materialised. The Human Rights arguments submitted in the Pretty cases are analysed, as are the implications consequential with the sporadic smokescreen of double effect. The incompetent and the juvenile patient are regrettably not covered for reasons of not spreading the discussion too thin.
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Later, discussion is given to the question of where should the law go? If a balance can be found between the necessary respect for life and the proper regard of an individual’s wishes for their own body, perhaps some of the emotion surrounding end of life decisions can be removed in favour of logic and compassion. First, it is prudent to review the facts of the leading case, which is Pretty.
The facts of Pretty have been well documented through the extensive media coverage which the cases received. Mrs Pretty suffered from motor neurone disease, which is a degenerative illness causing progressive muscle weakness, leading inevitably to death. Mrs Pretty became paralysed from the neck down and her speech was substantially affected. Her intellect was, however, unimpaired and she communicated her wish to commit suicide so as to avoid the distress of the final stages of the disease. Lord Hope of Craighead said of this that it:
“…might be thought to indicate a lack of judgement on her part. But I believe that the decision which she has taken in such extreme circumstances ought not to be criticised… I would accept her assurance that she has reached the decision to end her life of her own free will and that she has not been subject to outside pressure of any kind”.
As Mrs Pretty’s condition was such that she could not commit suicide unaided, she wanted her husband to help her. He was willing to give it but sought an assurance from the DPP that he would not be prosecuted under s.2(1) of the Suicide Act 1961 for aiding and abetting her suicide. The pressure group Liberty asked the DPP for such this assurance which he declined to grant and thus Mrs Pretty applied for judicial review of that refusal.
The Queen’s Bench Divisional Court upheld the Director’s decision on grounds that the Director did not hold the power to grant what was sought. The House of Lords affirmed that analysis; Lord Hobhouse of Woodborough commenting that:
“the undertaking which the appellant requested was not one which the Director as the holder of a statutory office had the authority or power to give and it would have been improper for him to give the undertaking whatever the merits of the appellant’s solicitors’ arguments”.
This conclusion was reached on the basis of the legal framework which applies to the DPP and not on the basis of the Suicide Act.
Suicide was once a felony in England, “that offended against both God and the King’s interest in the life of his citizens…”. In modern times society has recognised that the suicidal person should not be condemned as a criminal, but to be regarded with compassion. While the natural instinct is usually to keep living, where a suicidal motive is born of a desire to be freed from incurable or intolerable illness and pain it is not difficult to understand what has brought a person to arrive at that decision.
It has been observed that :
‘In the 19th and 20th centuries two very important changes occurred in our society: the development of the liberal attitude, where the individual wants the right to self determination in his life; and the development of medical science, which has made it possible to prolong life considerably. [However], for some patients a consequence of this is that suffering is prolonged and medical science has brought them far beyond the point where they normally would have died’.
McCall-Smith has described how personal autonomy is a concept that has been eagerly grasped, and understood to mean that ‘the individual was entitled to make all the relevant choices himself and to reject, if necessary, the vision of others for his personal life’. Clearly, in the present context of individuals wishing assistance to their suicide this features strongly, and there is to be found running through it a general theme asserting the right of the claimant to determine their own fate.
Suicide has not been a crime in England for almost fifty years, but the Act that brought this about also placed on a statutory footing the offence of aiding and abetting a suicide. Mrs Pretty did not disclose the proposed method by which her husband was to help her die, but instead died of natural causes in 2002. Likely it shall never be known if she was really to be an active participant in the event, or if she wished her husband to perform a mercy killing, for which there is no separate offence and, as euthanasia, would have constituted her murder; her consent being irrelevant to the offence.
Irrespective of the merits of the judgment in Pretty, it is notable that the Lord’s foray into the sphere of mercy killing and assisted suicide was a purely academic exercise. Lord Hobhouse pointed out that the DPP did not have the capacity to grant the request that Mrs Pretty sought. Further to this, Brown has explained that:
‘if what a litigant seeks cannot competently be done in terms of primary legislation, it does not matter how compelling an argument is presented in support of the proposition that it should be done. The litigant cannot succeed and consideration beyond that basic question of competence is necessary only in order to avoid a further hearing in the event of the decision on competence being overturned on appeal’.
Despite the unorthodox, and it must be noted – hopeless, request that was made in Pretty, the case has immediate relevance to the euthanasia and assisted suicide debate as a whole. Had Mrs Pretty been successful, it is entirely foreseeable that others in a similar situation to her would begin to request that their doctor be permitted to either despatch them personally, or at least assist in the doing so.
Pro-choice groups and leading academic writers maintain that, to be ethical, any activity constituting PAS and especially euthanasia must be at the voluntary instigation of the patient, and limited as to whom it is available to. The request:
‘must come from one who is either subject to intolerable pain or disability or who is suffering from an illness which is diagnosed as terminal…
Glover adds that:
‘if assisted suicide is possible, it is always to be preferred to voluntary euthanasia. If we know that a person himself knowingly took a lethal pill, there is by comparison with euthanasia little ambiguity about the nature of his decision’.
In saying that, Glover illustrated the vast ethical divide between allowing a person the autonomy to determine their own future by their own actions, and the dubious position of a secondary party taking that action for them. A United States Court of Appeal, although later overturned by the US Supreme Court, nevertheless had a valid point on dignity in its summing up of a 1996 case;
“when patients are no longer able to pursue liberty or happiness and do not wish to pursue life, the states interest in forcing them to remain alive is less compelling…. A mentally competent, terminally ill adult, having lived nearly the full measure of his life, has a strong liberty interest in choosing a dignified and humane death rather than being reduced to a child like state of helplessness, diapered, sedated, incompetent… How a person dies not only determines the nature of the final period of his existence, but in many cases, the enduring memories held by those who love him”.
Speaking of what is currently legal in every common law jurisdiction, that of the refusal of treatment, McCall-Smith observed how it is not difficult to conceive of a situation in which a person is suffering so much that notes that death would be a welcome release, and ‘may in those circumstances be morally acceptable’. The problem for the pro choice advocate is that there is an ethical gap between what is presently illegal, that of assisting a person to a dignified end, and what can be done which is merely limited to the provision of pain relief or respecting a person’s wishes to refuse treatment, but for some the gap is ethically indefensible:
‘advocates of death with dignity are not fully satisfied with the options currently available to dying patients… each option usually entails some period of lingering in a highly deliberated or helpless state and, therefore, offends the dignity these advocates are intent on preserving’.
Opponents to the introduction of PAS offer a number of frequently cited issues to support their cause, and primary among these is that assisting a person to die is the very opposite role to that which the physician ought to pursue, and that the Hippocratic Oath states I will neither give a deadly drug to anybody if asked for it, not will I make a suggestion to this effect.
To this Weir quickly retorts essentially that a doctor’s duties to the patient are more than merely the job of healing, and where healing cannot be achieved then the relief of suffering is still an important duty, even if ‘for that small minority of patients [this means] help in bringing about death’.
A further objection runs along the lines that the doctor-patient relationship would lose the trust it currently enjoys if patients thought their doctor might suggest something more sinister than a curing or caring course of action. Perhaps on this count some factions could be accused of scare-mongering. The vehement opponents of any doctor involvement with death include a significant proportion of religious groups prone to stirring up emotive feelings with words such as ‘killing’, ‘executing’, ‘culling’. With suggestions of death squads visiting hospices to kill people who are no longer an asset to society, it is not hard to imagine they would have people believe a society that permitted euthanasia might eventually degenerate to that seen in the science fiction movie Logan’s Run, where people are routinely executed upon reaching a certain age. The only conclusion one can reach is that either people are confused and failing to recognise the essential voluntary aspect of PAS; or that they are deliberately fuzzing the boundaries to present physician assisted suicide as if it were physician initiated murder.
Ethics and Life
The sanctity of life is a phrase wielded like a sword by opponents of PAS, as if to justify an impenetrable veto on the practice. This in contrast to respect for life, which is unquestionably something everybody ought to have, but is quite a separate principle and not one in conflict with responsible and regulated PAS. Sanctity of life is a religious value. To this:
‘the British Humanist Association suggested that sanctity of life was not a principle on which legal structures should be based, since it depended on a religious outlook which not everyone shared. They suggested that it is particularly hurtful to require someone who does not believe in God or afterlife to suffer intolerable pain or indignity in deference to a God or afterlife he does not accept’.
However, perhaps the most frequently cited reason against the legalisation of PAS is the contention that it’s practice would have a disproportionate impact on the vulnerable. Annas has claimed that such groups would encompass ‘the poor, the elderly, women and minorities’, a common theme across the writing on this subject. Lindsay identifies two prerequisites that he claims must apply before the disparate impact argument can carry any weight.
‘First, one must believe that it is proper to deny assisted suicide to those competent persons who truly voluntarily choose it, including persons who are members of vulnerable the groups in question, in order to protect others against being pressured into assisted suicide. Second, one must believe that it somehow makes a difference for the wisdom of legalising assisted suicide whether proportionally more blacks than whites, more women than men, more elderly than young and so on would likely be pressured into choosing assisted suicide’.
Lindsay suggests a solution to this quandary:
‘what if we imposed stringent quotas on assisted suicide so that no woman would be eligible for assisted suicide unless and until the proportion of men seeking assisted suicide from that particular hospital/hospice in that year was equivalent to the percentage of women seeking assisted suicide? Similar restrictions could be imposed for other so-called vulnerable groups: blacks, the elderly, the disabled, the poor. Quotas would eliminate any disparate impact and, therefore, appear to provide the solution to those concerned about equalization of risk’.
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Of course, it would be farcical to seriously consider a quota system, but by poking fun at the argument in this way Lindsay exposes its underlying flaw; that it would be preposterous to permit a practice of PAS that would allow anyone to come under pressure into using it. Lindsey suggests that the disparate impact argument is either a smoke screen for the sanctity-of-life ‘family of arguments against assisted suicide’ and Glover is at best sceptical of the concept of abuse of the vulnerable, asking ‘is there any evidence of such pressure in a country where voluntary euthanasia is not illegal?’.
It is of great significance that in the US State of Oregon, alone in its introduction of a Death with Dignity Act, there has been no rush to take advantage of it. In its first year, 1998, 23 people requested it and of these 15 actually used it.
Under the Death with Dignity Act the patient seeking PAS must:
- Be terminally ill with less than six months to live
- Not be labouring under depression or other mental illness
- Make ‘an oral request and a written request, and reiterate the oral request to his or her attending physician no less than fifteen days after making the initial oral request’
- Convince two physicians that s/he is sincere, acting voluntarily and not on a whim
The lead researcher in a study of PAS in Oregon found that educational level and social status bore no effect in determining who sought help in dying, but what did motivate those who chose this route was very different to that the opponents of assisted suicide would have us believe. The two most recurring reasons were concern about loss of autonomy and loss of control over bodily functions. These factors featured most strongly among those patients who had lead an independent life.
By the close of 2000, with three years worth of records, the results in Oregon were positive, and that the predicted abuse spectacularly failed to manifest itself was conspicuous. Robinson cites the statistics for 2000 as being that 27 individuals ended their life using PAS and the average use per head of population in that time ‘remained at six to nine per 10,000 deaths…’. Significantly, a provision in the Oregon legislation criminalising the alteration or forging of a request for PAS, or interfering with a patient’s rescindment of it, appears to have never yet been invoked.
To request that a doctors assist one to die is not normally a decision a person would take lightly, and that there are doctors who would take advantage of any provisions that might be introduced cannot be denied. While Dr Shipman was certainly exceptional in his lust for killing, he is not alone in being suspected to abuse his position and resources. Oregon has been successful, but no system for regulating PAS can be thought of as foolproof, and for some, any risk of abuse at all is adequate reason to reject the entire proposal. However, this is not an attitude that is mirrored in other areas of law.
There are an immeasurable number of activities sanctioned by the law that pose very great risks to the participants, a risk that is taken for far less compelling reasons than can be advanced in support of PAS; boxing and smoking being the archetypical paragons. Furthermore, a member of the Sikh religion, whilst wearing a turban, is exempt from being required to wear a crash helmet whilst riding a motorcycle, clearly an instance of a huge risk to the individual’s life being outweighed by the need to respect that individual’s beliefs.
Arguably, it cannot only be that a second person is involved with assisting a suicide that makes it so offensive to the criminal law. A man’s peer could supply him with all the cigarettes he ever smokes without any worry of legal liability when that man dies of the resultant cancer. Suicide and smoking are both legal activities and the significant variable between the two is time. Assisted suicide usually brings about the death very quickly, whereas it will normally take many years for the smoker to perish. The irony is that PAS would not be desired by anyone facing the choice if it were not a swift exit from the unbearable existence they toil under.
Widely acknowledged to be unavoidable, ‘the principle of double effect is a doctrine that distinguishes between the consequences a person intends and those that are unintended but foreseen’. Williams continues that ‘in a medical context it is usually relied on when a doctor foresees that [due to the doctors action] a patient may die, although that is not his intention’. The opinion of the law is stated by Ognall J in Cox, in that:
“if a doctor believes that a certain course is beneficial to his patient, either therapeutically or analgesically, then even though he recognises that that course carries with it a risk to life, he is fully entitled, nonetheless, to pursue it. If in those circumstances the patient dies, nobody could possible suggest that in that situation the doctor was guilty of murder or attempted murder… [but] what can never be lawful is the use of drugs with the primary purpose of hastening the moment of death”. His Honour further added that “a doctors duty is to alleviate suffering for so long as the patient survives but… he must never kill in order to achieve relief from suffering”.
It is immediately apparent that the principle of double effect allows a situation to arise whereby the doctor may directly cause death and yet not suffer any legal liability as a result. Questions of intention naturally follow, and despite the recent clarification that where an event is ‘virtual certain’ to occur then the jury are entitled to find that the actor intended it to do so, Ashworth implies that the jury are equally entitled not to find intention. That the jury may have laboured not to find intention, one can speculate in cases such as Adams and Carr.
Alternatively, there also exists a unique condition that ‘doctors are not normally presumed to intend all the foreseen consequences of their actions’. Williams notes that ‘there is no evidence that this presumption is applied other than in the medical context… using the principle of double effect is seen to provide a justification for doctors behaviour’. Williams also observes that ‘providing medication to control pain has always been a legitimate and lawful way of fulfilling [the doctors] duty – even if there is a chance of death…. [but] it has been accused of being a smoke-screen and a fig-leaf for euthanasia’. Such is the strength of the double effect doctrine that Wells has suggested that had Dr Cox used pain killing medication (instead of potassium chloride, for which there is no known therapeutic property in the dose administered by Dr. Cox) then he ‘would have been found not guilty if the results were the same, and regardless of his intent’.
It will be recalled that Mrs Pretty was not asking for a doctor to be involved with her death, she was asking for her husband to be granted immunity from prosecution should he assist her to die. This is no small request, and it was accepted by her counsel that, apart from the ECHR rights, she could not succeed. Mrs pretty claimed that the DPP’s decision breached the Human Rights Act 1998 and her argument rested on the provisions of the Convention at Art.3, the right not to suffer degrading and inhuman treatment, Art.2, the right to life and Art.8, the right to physical integrity and privacy.
The position of the law in this country had already been tested for its impact on human rights long before Mrs Pretty would even have become ill with motor neurone disease. In 1983 the Commission considered whether s.2 of the Suicide Act 1961 violated either the right to privacy at Art.8 or freedom of expression in Art.10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The outcome of that case was that “aiding, abetting, counselling or procuring suicide were excluded from the concept of privacy by virtue of their trespass on the public interest of protecting life”.
While Mrs Pretty argued that Article 2 of the ECHR, when read with Articles 1 and 2 of Protocol 6 guaranteed her a right to choose whether or not to live, Kennedy and Grubb suggest exactly the opposite. For Kennedy and Grubb, it ‘could be argued that to permit assisting suicide (or euthanasia) infringes Article 2 regardless of the patients consent’. In taking this latter stance both the Strasbourg Court and the House of Lords emphasised that the purpose of Article 2 is to protect life. Lord Steyn went further by saying that the Article “…provides a guarantee that no individual ‘shall be deprived of life’ by means of intentional human intervention”. His Lordship did not stop there, but obliterated any doubt that may have remained by stating that “nothing in the Article or in the jurisprudence of the European Court of Human Rights can assist Mrs Pretty’s case on this Article”.
The Strasbourg Court made it abundantly clear that the exceptions detailed in Art.2 are exhaustive by saying:
‘its sets out the limited circumstances when deprivation of life may be justified… and the first sentence of Art.2 enjoins the State not only to refrain from the intentional and unlawful taking of life but also to take appropriate steps to safeguard the lives of those within its jurisdiction… This obligation extends beyond a primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions’.
The conclusion is that Art.2, said the Court, ‘cannot, without distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die’.
The claim by Mrs Pretty that the suffering she faced qualified as degrading treatment under Art.3 and that the Government had a positive obligation to take steps to protect her from that suffering was rejected because as has been noted, ‘the suffering of an incurable patient cannot be considered as an inhuman or degrading treatment attributable to the State’. So despite an inspired attempt, this head of claim was regarded as irrelevant by the entire judiciary involved who considered that Art.3 was not engaged at all.
Art.8 was the only grounds that the Strasbourg Court was prepared to accept that preventing the applicant from exercising choice to avoid indignity and distress constituted an interference with the right to respect for private life guaranteed under Article 8.1, but it found against Mrs Pretty on Article 8.2 issues. The European Court adopted the position of Lord Hope on Art.8, insomuch as “the way she passes the closing moments of her life is part of the act of living and she has a right to ask that this too must be respected”. Even with this concession, his Lordship held that this did not imply a positive obligation to allow assisted suicide.
Art.9 was also dismissed by both courts because Mrs Pretty’s belief in the notion of assisted suicide ‘did not involve a form of manifestation of a religion or belief through worship, teaching, practice or observance’; thus there was no breach. This opinion echoes the stance of the House of Lords Select Committee of almost a decade previously when they said
‘we gave much thought to Professor Dworkin’s opinion that, for those without religious belief, the individual is best able to decide what manner of death is fitting to the life which has been lived. Ultimately, however, we do not believe that these arguments are sufficient reason to weaken society’s prohibition of intended killing’.
Art.14, prohibiting discrimination, was Mrs Pretty’s final line of attack but this too failed – because although suicide is no longer a crime, there is no right to commit it, as Lord Hope was at pains to distinguish, and as was an influential factor in the recent failure of Lord Joffee’s Assisted Dying for the Terminally Ill Bill.
Irrespective of why this is maintained a complete prohibition on PAS, the current law is still an affront to many people, including many doctors. As is demonstrated at regular intervals in the courts, in practice by providing the necessary care required to terminal patients, doctors are routinely crossing into the territory of the criminal law and thereby forced to rely on the legal fiction of double effect.
It surely cannot be that the surreptitious circumvention of the criminal law by doctors, or the repeated occurrence of jury-equity is an acceptable long term situation; but neither is the incessant suffering of a patient who simply wishes it to be over, yet is unable to make their own way out without help.
Public support for a change in the law is difficult to ascertain and opinion polls should surely not be trusted, for time and again they prove unreliable. In the UK, Mason et al comment that ‘the public can appear confused’. Perhaps the (unfounded?) fear of abuse is what has driven the overwhelming majority of Americans to reject PAS, Oregon excepted.
It is unfortunate, and doubtless fatal to any present attempts to implement PAS in the UK, that the Dutch have experienced poor compliance with their own regulations. Mason et al point to the widespread disregard for the legal requirements regarding euthanasia in the Netherlands. They actually suggest that ‘It appears… that euthanasia has been practised in many cases without the consent of the patient’.
If euthanasia is taking place without strict adherence to the formal regulations then ‘its exercise will inevitably become more trivial until what matters is not the grounds for wanting to die, but the want itself’, and suddenly we are into the territory of helping the depressed to die. As noted above, what might have been considered an inconceivable next step is already being taken, where the doctor himself makes the decision and from this point there remains only one further sinister step before we find ourselves, figuratively, knocking on the door of Dr Shipman.
There can be no doubt that Pretty does leave any uncertainty. Seven judges of the European Court of Human Rights, five Lords of Appeal and three judges in the Divisional Court all held without hint of dissent that the Convention does not require States to render lawful euthanasia or assisted suicide. It would be quite improper to suggest that Pretty was wrong. The European Court was not there to remedy what Liberty perceived to be a defect in the law but had a responsibility to determine the law as it is.
Lord Joffee’s Bill failed, but he is presently trying again in a revised form. McCall-Smith regards this as properly a matter for ‘legislators rather than judges’. However, in the absence of any parliamentary reform then the law will remain as it is, and ‘the doctor faced with a patient in extremis and asking to die will have to resort to the ‘double speak’ of purporting to relieve pain while bringing about death, making sure that the agent bringing about the death is one recognised by other doctors as a pain-reliever’.
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