For Halsbury's Law Exchange
UPDATE: see this morning's Telegraph for a potentially interesting development.
Recently Halsbury's Law Exchange (HLE) concluded its student competition by asking the five finalists to provide a video submission on whether or not assisted suicide should be legalized. The videos were all of a high standard and can be viewed on Youtube.
Predictably the videos proffer views as strongly expressed as they are disparate. The fact is that assisted suicide is an issue about which one cannot be uncontroversial. Either one believes that there are certain circumstances in which a person should be permitted to end his or her life, with assistance if necessary, or one does not. Either way, one will encounter passionate, articulate and determined opposition. There is no fence to sit upon.
Elsewhere on HLE an opinion piece by Jacqueline Laing was recently reproduced from the New Law Journal. It argued that assisted suicide equals institutionalised murder, nothing less, no exceptions. There has also been the policy paper for HLE prepared by John Cooper QC, which argues that the existing guidelines released by the Director of Public Prosecutions following the well known Purdy case (R (on the application of Purdy) v Director of Public Prosecutions  UKHL 45,  4 All ER 1147) are adequate even if they go further than was strictly required by the Purdy decision.
For a different perspective, the formidable Becker-Posner blog has recently posted on the issue (see here and here), both authors supporting some form of assisted suicide based on the rather different perspective of economists, as did the well-publicised paper prepared by Lord Falconer with the support of Dignity in Dying.
It seems to me that there are two broad questions. The first is whether any form of assisted suicide ought to be legal in the first place. This involves questions of philosophy and religion that have been debate more or less throughout recorded history without anything like a consensus emerging. If one answers in the affirmative, then the second question arises of how to devise a legal framework to allow it. This involves defining the permissible circumstances and providing a safeguard against abuse – and abuse in this context equals murder. The second question is almost as difficult as the first.
Needless to say, I cannot attempt a full exposition of either within a blog. For the former I would refer readers to the Philosopher's Brief, filed by a number of eminent United States' authors for a Supreme Court hearing in the 1990s. In common with them I believe that there are indeed circumstances in which assisted suicide one should be permitted.
The cornerstone of the philosophers' argument is the concept of individual autonomy (note that they had to structure their argument to constitute a legal submission in the context of the United States’ constitution rather than an abstract moral philosophy paper). To my mind, however, the key point is that one is already permitted to refuse medical treatment even when certain death will shortly follow - a transplant operation, for example, or taking some form of vital drug. There is something approaching a consensus that that rule is morally just. If, therefore, one may refuse medical intervention even though the consequence of refusal is virtually immediate death, then I would argue that it follows that in certain circumstances one ought to be able to accept treatment with the same result. This is the point that my co-author and I made when writing about the issue for Criminal Law & Justice Weekly in 2010.
The terminally ill Dianne Pretty faced a drawn out and excruciating death due to her degenerative illness. When the courts refused to accept that she might be assisted in suicide at a time and place of her choosing, she had no choice but to suffer precisely the ghastly death she had gone to court to avoid. I would not have wished to have been the one to deliver the news to Ms Pretty about the fate she was to endure. Rather less would I wish to receive the same news if I developed the same illness as Ms Pretty.
All that, however, is not to belittle in any way the strength of the opposing argument. The very idea of a medical professional assisting someone's life to end seems counter-intuitive, to say the least. But it seems to me that the strongest arguments against assisted suicide come when considering how an acceptable legal framework might be developed to permit it. It is not difficult to envisage circumstances whereby continuing to live in ghastly circumstances would be beyond the endurance of any of us. Indeed there is no need to imagine - Diane Pretty faced an actual example. But it is equally easy to imagine circumstances in which permission for assisted suicide might be abused: the aforementioned New Law Journal article does just that. If it transpires that the risks of abuse are too great, then even supporters of assisted dying would have to concede that it should not be permitted.
We must therefore address the second question identified above. Again, I would refer readers to Mr Cooper QC's policy paper for a detailed treatment of the development of how the law has developed to date and the Commission on Assisted Dying for a consideration of how it might be altered in the future.
I would note that while suicide was legalised in 1961, assisted suicide remains illegal. Nothing in the DPP guidelines on when prosecution will be undertaken changes that. While it is fundamental that the Attorney General retains the discretion whether or not to prosecute in any individual case, he and his subordinates have no power to impose a blanket decision never to prosecute. If it transpires that no prosecution ever takes place, despite prima facie evidence offences having been committed, then the DPP may well be found to have been acting unlawfully.
The risks that any legal framework must guard against are obvious. The very elderly or the terminally ill are ipso facto among the more vulnerable members of society. Ms Laing writes that:
“Once enshrined in law, the practice invariably involves a move towards the elimination of those who have not asked to be killed, those who are unwanted, those who are lonely and low-income (KNMG Dutch Physicians Guidelines, Position paper, 23 June 2011), and those whose deaths offer some advantage to third parties controlling the process. It does so because it involves a radically altered mindset.
Organs for transplant are an ongoing incentive for active euthanasia. So too is cost-saving, litigation and payout minimisation, bed clearing, medical research, improper individual concerns about inheritance and even political Malthusianism. In this environment, failures of transparency, ie lies and deception, are both pragmatic and inevitable.”
Can safeguards prevent abuse of this nature? I would observe that the law already has to frame questions of equal magnitude and difficulty elsewhere. Legalising suicide in the first place opens the door to possible abuse. Perhaps more pertinently, the law of self defence, or defence of another, allows what would otherwise be murder. Unlike assisted suicide, the state’s approval has to come after the fact, where the circumstances are harder to reconstruct and therefore the claim of a prospective defendant that he or she was indeed acting to save him or herself or another person is much harder to assess – leading to obvious potential for abuse. Yet no-one suggests that the defence should be removed, because it is a fundamental right to protect one’s life, even if that may entail ending the life of one’s assailant.
Or there is the emotive issue of abortion, with recent newspaper reports suggesting that there are cases of “gendercide” in this country, where some wish for cultural reasons to have sons rather than daughters. This, or any other form of abuse, has not (or not yet) led to a suggestion that abortion should never be allowed.
More detailed suggestions are made in the paper issued by Dignity in Dying. The paper can be accessed on their website. I would suggest that these should indeed be sufficient if rigorously policed and enforced, and preferable to the present situation where all seems to turn on the DPP’s interpretation of its own guidelines.