In recent posts we have covered the case law concerned with those seeking assistance in dying, in particular that relating to Mr Tony Nicklinson and an anonymous claimant, who were unsuccessful in their application to allow doctors to end their lives without fear of prosecution, R (Nicklinson) v Ministry of Justice & Ors: R (AM) v DPP and Ors  EWHC 2381 (Admin). Subsequent to the Nicklinson ruling, the BBC reported that the anonymous claimant, “Martin” is seeking leave to appeal against the refusal of the Court to grant him
“… an order that the DPP should clarify his published policy so that other people, who may on compassionate grounds be willing to assist Martin to commit suicide through the use of Dignitas, would know, one way or the other, whether they would be more likely than not to face prosecution in England” (para 9).
In both of these cases the claimants suffered “locked in syndrome”. Neither was terminally ill and at the time of the judgement, both faced the prospect of living for many years, although tragically during the following week Mr Nicklinson refused to take food and died shortly afterwards, here.
On 3rd July this year, the All-Party Parliamentary Group (APPG) on Choice at the End of Life, in partnership with Dignity in Dying launched a consultation on a draft Bill
“to enable competent adults who are terminally ill to be provided at their request with specific assistance to end their own life, and for connected purposes”.
The consultation is based upon the recommendations of the Commission on Assisted Dying, which published its findings in January and was chaired by the former Secretary of State for Justice, Lord Falconer QC. The consultation closed on 20th November 2012 and the APPG and Dignity in Dying intend to publish a report on the responses in Spring 2013.
Whilst addressing similar issues, it is clear that the APPG proposed Bill would not assist those with “locked in syndrome” or similar conditions for which those suffering are not considered as “terminally ill”. However, it would be applicable to cases such as those of Debbie Purdy who was suffering from primary progressive multiple sclerosis, sought the courts’ guidenace on whether her husband was likely to be prosecuted if he assisted her to die by helping her end her life in Switzerland: see Purdy, R (on the application of) v Director of Public Prosecutions & Ors  EWCA Civ 92 (19 February 2009).
It is important, therefore, to clarify the terms that are used – assisted dying, assisted suicide, and voluntary euthanasia – which are not synonymous. Although the consultation provides a degree of clarification, it is more instructive to use the definitions of the National Health Service which concern current, rather than prospective legislation. The NHS guidance states
- “Euthanasia is the act of deliberately ending a person’s life to relieve suffering. A doctor who gives a patient who has terminal cancer an overdose of muscle relaxants to end their life would be considered to have carried out euthanasia.
- Assisted suicide is the act of deliberately assisting or encouraging another person who commits, or attempts to commit, suicide. If a relative of a person with a terminal illness were to obtain powerful sedatives, knowing that the person intended to take an overdose of sedatives to kill themselves, they would be assisting suicide.
Both euthanasia and assisted suicide are illegal under English law. Depending on the circumstances, euthanasia is regarded as either manslaughter or murder and is punishable by law with a maximum penalty of up to life imprisonment. Assisted suicide is illegal under the terms of the Suicide Act 1961 and is punishable by up to 14 years’ imprisonment. Attempting to commit suicide is not a criminal act in itself.”
The NHS uses the term ‘assisted suicide’ to cover some practices that the APPG would classify as ‘assisted dying’. The APPG’s understanding of these terms is laid out in the FAQs within its guidance on the consultation:
- “Assisted Dying, as legalised and regulated in the US states of Oregon and Washington, ‘provides terminally ill, mentally competent adults with choice and control over the timing and manner of their death. It allows a dying person, who has met strict legal safeguards, to self-administer life-ending medication’;
- Assisted Suicide, which is legal in Switzerland, ‘is a wider practice than assisted dying, and may allow chronically ill and disabled people help to end their lives’; and
- Voluntary Euthanasia, legal in the Luxembourg, Netherlands and Belgium, allows a doctor to directly administer life-ending medication to a patient at their request.”
At the launch of the consultation, Archbishop Peter Smith reiterated the opposition of the Roman Catholic Church to the promotion of ‘legislation of assisted suicide’, here,and on 15th November, the Mission and Public Affairs Council of the Church of England issued a press release in which it rejected the assisted dying proposals as too damaging. Although the Consultation includes 20 Questions, its purpose is not to seek approval for assisted dying, but “to assess the robustness of the safeguards.” Consequently, this is only addressed in the one question,
“If adequate safeguards can be found to allow assisted dying (assistance to die for terminally ill, mentally competent adults only) and no healthcare professional is obliged in any way to assist a patient to die, would you support a change in the law on assisted dying?”
The Church of England’s position on assisted suicide was stated in a motion passed at General Synod in February 2012., which included the clause that Synod:
“affirm the intrinsic value of every human life and express its support for the current law on assisted suicide as a means of contributing to a just and compassionate society in which vulnerable people are protected”.
Consequently, the MPA response considered only Question One, and
“while acknowledging that the draft bill seeks genuinely to meet the stated wishes of a small number of people, we believe that it fails sufficiently to recognise its potentially damaging consequences.” [para. 2.1]
“A change in the law would negatively redefine the concept of health care in England and Wales and would significantly and detrimentally alter the nature of the relationship between health professionals and patients, a point pertinently made by a number of professional bodies.” [para.2.3]
The latter point echoes the MPA’s comments in its response to the NHSBT Consultation on the introduction of presumed consent for organ donation in the UK, which we reported here. It also expressed concern for “the obvious vulnerability of more than 300,000 elderly people who suffer abuse each year in England and Wales, very many of them at the hands of their own family members, often for pecuniary reasons” and posed the question:
“might a change in the law place more vulnerable people at increased risk of neglect, marginalisation or abuse? Unless the answer can be a demonstrable and convincing ‘no’ it would be negligent in the extreme to contemplate such a change.”, [para. 3.1]
Expressing the views of the Roman Catholic Church, Archbishop Smith said:
“[t]he existing law serves a vital purpose in upholding the human dignity of all and gives protection to the most vulnerable members of society. Far from prematurely ending a person’s life, what is needed for those with terminal illnesses is a properly funded and universally accessible palliative care service. In helping the terminally ill to face their fears with tireless and dedicated support, and by relieving their pain and suffering, palliative care workers are integral to respecting and securing the dignity of those nearing life’s end.”
The APPG in partnership with Dignity in Dying reports that Lord Falconer QC has committed to tabling an assisted dying Bill as a Private Members Bill in the House of Lords. However, as fellow co-blogger Frank Cranmer commented earlier,
“quite apart from the basic moral issue, even if one agrees that there are circumstances in which it would be morally-right to help someone die, the problem remains of making sure that any change in the law would be hedged around with adequate safeguards.”