The Law on Physician Assisted Suicide

The Law on Physician Assisted Suicide 

-unnecessary suffering and the case for reform

 

Introduction

Terminal illness is a difficult situation few people will have to face and even fewer can imagine facing. Accounts of patients living with terminal illnesses paint a picture of suffering; a sense of gradual loss of control over their lives and control over decisions affecting their lives. When these patients wish to consider ending their lives, in full capacity to make such decisions, control over this decision is also highly restricted by the current law.

 

While suicide was decriminalised in 1966 in Northern Ireland, assisting in a person’s suicide is criminal. There is also precedent to suggest that those who assist could be charged with murder. However, there is a marked judicial reluctance to bring down the full weight of criminal law.

 

Through the various arguments which surround the issue, the simple fact is this: the law no longer frowns upon persons taking their own lives, but they are left with virtually no option of asking for assistance if they are incapable of the act themselves. This essay will argue that this in fact creates unnecessary suffering for the terminally ill by examining morality, public interests and natural law.

 

Finally, examples of legalised regimes will be considered to see how reform in the law might fare.

 

The Law

In Northern Ireland, the main statutory provisions which govern this field are found in the Criminal Justice (Northern Ireland) Act 1966, specifically sections 5, 12, 13 and the amendments to this Act in the form of new sections 13A and 13B as enacted by the Coroners and Justice Act 2009.

 

Section 5 of the Act of 1966 provides for a partial defence to murder; that of impaired mental responsibility, where the charge is commuted to manslaughter. Section 12 decriminalises the act of committing suicide while Sections 13-13B outline the offence of assisting in suicide. Amendments introduced by the Act of 2009 widened the scope of the offence considerably but left the maximum punishment unchanged at 14 years’ imprisonment.[1]

 

Thus far, two points need be considered. Firstly, if a person kills another as an act of ‘mercy killing’, the ‘mercy killer’ may be found guilty of murder, or depending on their mental health at the time of committing the act, manslaughter. This is expressly clarified by the Law Commission:

 

The law…does not recognise either a tailor-made offence of ‘mercy’ killing or a tailor-made defence, full or partial, of ‘mercy’ killing. Unless able to avail him or herself of either the partial defence of diminished responsibility or the partial defence of killing pursuant to a suicide pact, if the defendant (“D”) intentionally kills the victim (“V”) in the genuine belief that it is in V’s best interests to die, D is guilty of murder. This is so even if V wished to die and consented to being killed.[2]

 

Secondly, if a person at least believes assisted or encouraged an individual’s suicide[3] or which would lead through subsequent events, to an individual’s suicide[4] , the person so believing may be found guilty of assisting in an individual’s suicide. At common law however, the reality is quite different.

 

In R v Inglis[5] the defendant had been found guilty of murdering her hospitalised son with a fatal dose of heroin in the belief that his death would be in his best interests.[6] In her appeal, the tenor of the judgment is worth noting. While Judge LCJ was unable to overturn the conviction, he considered all the resources available to him to mitigate the original minimum sentence of nine years. Judge LCJ considered the list of factors contained in the relevant legislation which are prescribed to aggravate the offence of murder and declared that they should not be taken to aggravate in the defendants case as they would be common to all cases of mercy killing.[7] These considerations, taken with some mitigating factors, led to her minimum sentence being reduced to five.[8]

 

Similarly in the case of Kay Gilderdale[9] who had injected her daughter with a morphine overdose as well as other drugs, the jury refused to convict her of attempted murder. The presiding judge also questioned the charge that was brought.[10] Instead, Gilderdale was given a twelve month conditional discharge for assisted suicide.[11]

 

For the medical profession, there is also judicial unwillingness to apply the full weight of criminal law on perceived mercy killers. In the case of R v Cox[12] the defendant was accused of attempted murder after injecting his patient with double the lethal dose of potassium chloride, a drug with no known analgesic application. In his direction to the jury, Ognall J put forward the notion that in the “death-throes”, the suffering of a patient could be incidentally alleviated with a drug with no known effect other than hastening death.[13] It is an odd statement, considering Ognall J had been very clear earlier in stating the doctrine of double effect, where the alleviation of suffering was the “easing of it for so long as the patient survives; not the easing of it in the throes of, and because of, deliberate purpose killing”.[14] The defendant was found guilty of attempted murder and given a twelve month suspended prison sentence.[15]

 

Finally, no examination of the law would be complete without an exploration of the policies surrounding prosecution of assisting a suicide. Section 13(5) of the Act of 1966 requires the consent of the Attorney General for Northern Ireland in order to institute or continue proceedings for assisting in suicide. It would be worthwhile at this stage to look at the controversy surrounding the England and Wales counterpart of section 13(5); section 2(4) of the Suicide Act 1961. Under this section, prosecutorial discretion lies with the Director of Public Prosecutions (DPP).

 

In 2008, the then Director issued his evaluation of the decision not to prosecute the parents of Daniel James, who had accompanied him to a clinic in Switzerland where he had committed suicide with their assistance.[16] This evaluation was based on the Code for Crown Prosecutors which requires an Evidential and a Public Interest stage to test the merit and appropriateness of a prosecution.[17] By the Director’s own admission, large parts of the Code were irrelevant to the case [18] and this was one consideration among many which led the House of Lords in R (Purdy) v DPP [19] to issue a mandatory order to the Director to promulgate a specific policy of facts and circumstances to be considered in deciding to prosecute cases of assisting in suicide. In that case, the applicant was a sufferer of primary progressive multiple sclerosis who wished to clarify under which circumstances her husband would be prosecuted for assisting in her suicide.[20] The House observed that applicant’s right to private and family life under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) was engaged and that the lack of an offence-specific policy in this case interfered with that right in a manner not in accordance with the law.[21]

 

Since the promulgation of this policy, there have been numerous published reports detailing cases in which the DPP has considered whether or not to prosecute.[22]
A visible trend appears in these reports, that even where there is sufficient evidence to prosecute, where there is the element of compassion, it is not considered in the public interest to prosecute.

 

Unnecessary Suffering

In recent years, two individuals have been synonymous with the reform of the law on assisted suicide; Dianne Pretty and Debbie Purdy. Dianne Pretty was a sufferer of motor neurone disease and campaigned to have the law allow her husband to assist her in committing suicide. Pretty had stated on her website, “I want to have a quick death without suffering, at home surrounded by my family so that I can say good-bye to them”.[23] The suffering she had wanted to avoid was choking and asphyxia often caused by an advanced form of the disease, which is how she would eventually die. In the words of her husband, she “had to go through the one thing she had foreseen and was afraid of – and there was nothing I could do to help.[24] Dianne Pretty had wanted a declaration from the DPP that her husband would not be prosecuted should he help her commit suicide. This was not granted and she lost on appeal to the House of Lords as well as at the Court of Human Rights at Strasbourg.[25]

 

Debbie Purdy was diagnosed with primary progressive multiple sclerosis and wished for her husband to assist in her suicide “should living become unbearable”.[26] In this regard, she sought a declaration of policy from the DPP of the circumstances under which her husband would not be prosecuted. She succeeded and the House of Lords ordered such a policy to be prepared and released, as mentioned above. Curiously, while the Lords differentiated between Purdy and Pretty in terms of the relief sought in the two cases, one observation in Pretty had been that the DPP could issue an offence-specific policy, but that the DPP could not be ordered.[27] This was exactly the substance of the order issued in Purdy, highlighting again the change in judicial attitudes to this issue.

 

It may be tempting at this stage to review the current law and state that while the letter of the law may seem rigid and absolute, the level of judicial and prosecutorial flexibility grants those wishing to assist in the suicide of individuals suffering from terminal illnesses some leeway and even possible immunity from prosecution. However, this is far from the truth.

 

The House of Lords in Purdy clarified two important points about seeking an offence-specific policy from the DPP. Firstly, that in accordance with Strasbourg jurisprudence, it was necessary that in order for anyone to regulate their conduct according to the law, the law needed to be accessible and foreseeable, which, in the absence of an offence-specific policy, the applicability of this principle was in doubt.[28] Secondly, the release of an offence-specific policy would be in accordance with the discretion that the DPP enjoys under s. 2(4) of the 1961 Act.[29] The first observation is emphatically to enable an individual to conduct herself under the current law. The House was clear in their unwillingness to bring any change to the current law, a matter reserved instead for Parliament.[30] The second observation was proved true in the case of Kay Gilderdale, who, as outlined above, was prosecuted, not for assisted suicide but for attempted murder. In defending the decision to prosecute, the DPP appears not to have consulted its own policy. The policy provides for a two-pronged test for the appropriateness of a prosecution; the Evidential Stage and the Public Interest Stage.[31] On a careful examination, there are a number of public interest points which would have been highly relevant to the Gilderdale case (for and against prosecution), however the DPP seems to have reached a decision solely on the basis of the evidence available.[32] The charge of attempted murder, it will have been noted before, was ultimately rejected by the jury and questioned by the presiding judge.

 

Ultimately therefore, while the law has become clearer, it is still impossible to accurately foresee whether or not assisting in suicide will face prosecution and even if prosecution is faced, there is a level of uncertainty in the discretion of a jury, which cannot be reasonably predictable. However, it is not simply in the discretion of the law where a terminally ill individual and those wishing to assist in her death may suffer. Examining law-makers is crucial to gaining a deeper understanding of the suffering and why it is unnecessary. Arguments against legalising and regulating assisted suicide are often moral and tied with public interests. However, it is also necessary to give due weight to those arguments which purport themselves to lie outside morality such as in natural law theory, in order to highlight how the issue of assisted suicide is addressed outside the realm of morality.

 

Morality plays an unavoidable part in the debate surrounding assisted suicide. In terms of the law, it is the morality of the law-makers and those whose opinion they value which directly affects individuals considering or asking for assistance in suicide. Assisted suicide has had a history of being debated in Parliament and particular attention needs to be focused on the House of Lords for two reasons: first, it has been in this chamber that reform of the law has been proposed at least three times[33] and second, this chamber has 26 Lords Spiritual, members of the Anglican clergy who have a direct vote on legislation and matters of morality and religion can often be tied inextricably. Particularly noteworthy in this regard are the debates surrounding two separate occasions; the Assisted Dying for the Terminally Ill Bill proposed by Lord Joffe in 2006[34] and an amendment to the then Coroners and Justice Bill proposed by Lord Falconer of Thoroton in 2009 which would have had the effect of expressly declaring that accompanying a terminally ill individual to another jurisdiction for assisted suicide (where assisted suicide is legal) would not be prosecuted.[35] There are a number of arguments shared between the two debates and they will be discussed here.

 

The first argument is that by legalising or decriminalising any conduct relating to assisted suicide, the law is seen to devalue some human lives; essentially, the law would sanction the death of the terminally ill while upholding the lives of everyone else.[36] A crucial point missed in this assertion is that the law already devalues the views of terminally ill patients who seek assistance in suicide by refusing to comply with their request. Furthermore, if an individual has reached a stage in her terminal illness where control over almost every aspect of her daily life is no longer hers and one decision which she is able to take and has taken is to end her life, is the current law not devaluing her as an independent, autonomous individual by forcing her to prolong her suffering?

 

The second argument is that reforming the law would fail to protect the vulnerable; there are some terminally ill individuals who are exceptionally prone to coercion and would invariably be coerced, however subtly, into acquiescing to assisted suicide and the facilitation of coercion would offend morality.[37] It is at this point apt to mention that at no stage in this debate was assisted suicide not tied to consent of the individual who was seeking assistance and by consequence, tied to the capacity of such an individual to consent, thereby excluding patients who would arouse the suspicion of being coerced or, by virtue of any factor, be unable to consent.[38] A well-reasoned reply to the argument was nevertheless delivered in the House by Lord Low of Dalston, in support of Lord Falconer’s amendment, “It is a major act to go abroad in order to die with dignity. It is implausible to suggest that people can easily be conned into doing it…it takes a certain amount of courage to undertake this course and it is not something that people can be easily bamboozled into”.[39]

 

Also important to consider is the fact that the present law  can be argued to not adequately protect the vulnerable. In 2013, Kevin Howe was convicted of assisted suicide in connection with the self-immolation of an individual who was known to be suicidal. Howe bought the victim petrol and a lighter and “deliberately encouraged the victim, who was clearly vulnerable” to set himself alight.[40] Criminal law in this, like in any other case, can only prosecute the perpetrator after the commission of the proscribed act, but it did nothing in the aforementioned case to protect the vulnerable victim from the perpetrator.

 

The third argument, which takes many different forms, gives dire predictions of situations in extremis. One situation which the then Archbishop of Canterbury illustrated in the House was in response to Lord Joffe’s Bill. The Archbishop interpreted assisted suicide to be a “simpler and…more cost-effective solution” to improving standards of palliative care for terminally ill patients and asked what incentive there was in avoiding this acutely dystopian and morally offensive.[41] Notwithstanding the Bill’s emphasis on the consent of the patient and the arguments of Lord Goodhart, similar to Lord Low above[42] the Archbishop appears to interpret legally assisted suicide as empowering physicians to kill their patients, rather than empowering patients to seek assistance to commit suicide when they are unable to do so themselves.

 

The second strand of legal policy tends to consider what is in the public interest. A major counter-argument to Lord Falconer’s amendment was that the current discretion enjoyed by the DPP to prosecute cases of assisted suicide is in the public interest and the current law is preferable to the amendment.[43] This is in stark contrast to polls conducted by YouGov at the time Lord Joffe’s Bill had been presented to the House. 77% of respondents to the poll answered that the current law discriminates against terminally ill individuals who seek assistance in committing suicide.[44] However, the real note of interest is that a staggering 82% of disabled respondents also answered in the affirmative for discrimination.[45] While the poll cannot be taken to have the same weight as a referendum, it is nevertheless an important reference point.

 

Another counter-argument to legalisation in public interest terms is that legalisation would drastically alter the physician-patient relationship and in particular, opinions from disabled members of the Lords stated that they would fear for their lives in the hands of their physicians.[46] This was another question posed in the aforementioned poll; 77% of disabled respondents answered that they would trust their physicians the same.[47] Incidentally, the amendment was vetoed by a margin of 53 against[48]; neither greatly wide nor greatly narrow, however it raises the question: when law-makers appear to be out of step with public opinion, is it democratic to continue to allow individuals to suffer when that suffering is unnecessary?

 

A final public interest matter is the protection of the medical profession. Does the law, as it currently stands, protect physicians by criminalising assisted suicide? The relevant legal principle, as discussed earlier, is double effect. However, as seen earlier, the line between pain relief with incidental death and death with incidental pain relief is blurred, even in the eyes of the law. What is to stop the former from becoming the latter in an environment of unregulated assisted suicide? It will be remembered that in Cox, the defendant was given quite a light punishment for what is a serious crime. Within his profession, the defendant, though formally reprimanded, was not struck off the Medical Register and returned to full practice after a year.[49] Rather than truly protecting physicians who assist in their patients’ suicides out of nothing other than compassion, the law is arguably turning a blind eye to the dilemma and hobbling along when a case comes to trial.

 

Finally, when arguments purported to lie outside morality are advanced against legalisation of assisted suicide, what can the response be? In terms of natural law theory, Craig Patterson states, ‘To act practically is to pursue via action some goal judged worth pursuing’ and further, ‘[o]ur capacity for practical reason…directs us to “pursue good and avoid what is bad”’.[50] This is elucidated as the ‘first principle of practical rationality’.[51] Taking these statements together, a ‘good’ is a goal judged worth pursuing.  However, Patterson then gives the concept of ‘good’ a ‘pre-moral’ definition, placing it essentially outside the concept of good as ‘understood in ordinary language’,[52] thereby avoiding any morally subjective variations in defining ‘good’ and ‘bad’. Subsequently, Patterson defines human life as a ‘good’, in the pre-moral sense.[53] Thus, pursuing good is pursuing life and avoiding what is bad is to avoid killing. However, if this ‘pre-moral’ good is still a goal judged worth pursuing, why should the goal of ending life be considered bad if the individual whose life it is has judged it worthy to end her life?

 

Patterson further considers the argument that quality of life can differ in different individuals’ perspectives and that a competent individual can decide if the quality of her life is so poor that it is no longer worthwhile to live. He summarises the argument by referring to “some rather vague and indeterminate threshold of pain and suffering”, which, if crossed, the quality of life decreases.[54] While stating that he does not wish to ‘trivialise’ the burdens imposed on life by illness,[55] he is happy to discount completely the subjective evaluation by an individual of her own life, just as he is happy to discount the subjective evaluation of good and bad. By Patterson’s own line of reasoning, if an individual judges that her goal worth pursuing is the ending of her life, then according to the first principle of practical rationality, it would be pursuing good to assist her and end her suffering and avoiding good to thwart her, thereby making her suffering unnecessary.

 

The Possibility for Reform

In speaking against Lord Joffe’s Bill to legalise assisted suicide, the Archbishop of Canterbury stated that the evidence ‘from the Netherlands…offers no comfort at all’[56] referring to the legalised euthanasia and physician-assisted suicide regime in that country. The Archbishop did not elaborate on why the evidence did not provide any comfort. However the regime and its effects are well worth examining.

 

Euthanasia, while technically not legalised, had been conditionally immune from prosecution in the Netherlands since 1985, when the State Commission on Euthanasia issued the criteria for immunity.[57] This was followed by the Termination of Life on Request and Assisted Suicide (Review Procedures) Act which entered into force in 2002 which largely legalised the existing practice. The Act provided for a set of criteria which if applied, would ensure the legality of euthanasia and assisted suicide. The ‘due care’ criteria for the physician include the conviction that the request for euthanasia or assisted suicide came from the patient, being voluntary and well-considered; that the patient’s suffering was ‘lasting and unbearable’; that the physician has discussed with the patient her diagnosis and prognosis; that the patient held the conviction that there was no other ‘reasonable solution’; that the physician consulted another independent physician who has seen the patient and that the physician has terminated a patient’s life or assisted in her suicide with due care.[58]

 

The major change introduced by the Act was the establishment and regulation of regional review committees for notification of cases of euthanasia or assisted suicide which study reports of cases submitted by physicians, assess according to the existing law whether the requirements of due care have been met and refer only those cases on for prosecution where the requirements have not been met.[59] A study over a period of four years, starting before the passage of the Act and finishing three years after the Act had come into force illustrates statistics which contradict the Archbishop’s observation.[60] After legalisation, rates of euthanasia and assisted suicide decreased across all ages and there was an increase in palliative care such as continuous deep sedation offered to the patient.[61] This is in contradiction to the scenario prior to legalisation, when rates of euthanasia and assisted suicide had increased over a decade.[62]

 

The question therefore, is: will a regime similar to the Netherlands be possible in Northern Ireland or indeed the rest of the UK? One further comparison with the Netherlands is appropriate here. As mentioned earlier, one argument against legalising assisted suicide is that it provides no incentive to develop palliative care. The UK, as has been claimed multiple times in this debate, is a world leader in palliative care,[63] beyond the standard provided in the Netherlands, which, since the legalisation of euthanasia and assisted suicide, has increased palliative care for terminally ill patients while decreasing rates of euthanasia and assisted suicide. When the UK is already considered a world leader in palliative care, what sound logic would there be in suddenly abandoning this carefully constructed infrastructure in favour of what critics urge would be mass murder? The cost-effectiveness argument which the Archbishop of Canterbury had put forward can be proved to be nothing more than scaremongering. A study conducted in 1998 of the so-called ‘cost-effectiveness’ of legalising assisted suicide in the United States based on statistics gathered from the Netherlands estimated that even on a greatly inflated scale, a mere 0.07% of the total US healthcare expenditure would be saved.[64] This is not an argument against legalisation; it is an argument in favour. If current levels of palliative care would cost virtually the same as that together with legalised assisted suicide, what are the financial reasons against law reform?

 

Conclusion

Terminal illness and the ability to cope with it are important issues which need to be addressed by the law. As it currently stands, the law criminalises those who seek to compassionately respect and assist in the decision taken by an autonomous individual. It takes very little cognizance of the real suffering and dilemma that the terminally ill must go through and seeks to substitute this suffering with abstract and often speculative philosophy and scaremongering slippery slopes. Even when faced with hard statistics of the good of law reform in other jurisdictions, these arguments have remained, often against the popular view. It has taken an appeal to the highest court in the country for greater clarity in the law; now it remains to be seen when the highest body of law listens to these appeals.