UK moves to join countries with some form of assisted dying – but a way to go yet

The debate on the role of law and ethics at the end of life is an enduring one. In 1971, such debate was focused almost solely upon the Netherlands when a rural physician called Truus Postma facilitated the death of her severely handicapped mother, Margina van Boven-Grevelink, following her repeated, explicit requests for euthanasia.

Although Postma was convicted two years later, the court’s judgment determined when a doctor would not be required to keep a patient alive contrary to their will in what was the world’s first test case.

A set of criteria developed through a number of cases in the country during the 1980s and resulted in the Termination of Life on Request and Assistance with Suicide (Review Procedures) Act 2001. This did not legalise end-of-life assistance but instead provided statutory defences to prosecution, subject to certain procedures being followed.

Assisted dying now

Today the Netherlands has been joined by Belgium, Luxembourg and Switzerland; the US states of Oregon, Washington, Montana and Vermont; and most recently the Canadian state of Quebec as jurisdictions which have enacted legal provision to permit assistance at the end of life. In the UK, Scotland, England and Wales are developing bills that propose to bring similar provisions to this country for the first time.

The provisions in the different jurisdictions vary but have similarities too. They have mostly had to address recurring concerns such as what form a request for assistance to end life should take; whether there should be a minimum age; how the consultation and referral process will be monitored; how capacity is to be determined; who will oversee reporting and scrutiny; who will provide such assistance; and above all, how transparency, accountability and equity are to be ensured.

Many jurisdictions have experienced difficulty with terminology and definitions. For example, how can it be shown that a person’s suffering is at a point that it can no longer be endured? Legislative proposals have included descriptions such as “unbearable”, “intolerable”, “unrelievable”, “hopeless”, “intractable” and “irremediable”, and it has been questioned whether any of these words capture the essence of what an individual may feel at that moment and, if so, how it be adequately reflected in legal provision.

Euthanasia vs assisted suicide

Among regimes that permit assisted dying, they don’t always permit both euthanasia and assisted suicide, the distinction between the two being about who is doing the killing (though more on the fineness of the distinction below). Euthanasia involves administering the lethal drugs, while assisted suicide is about making the means available to the patient to administer themselves. Where both types of assisted death are available, surveys have shown that individuals usually choose euthanasia, placing the responsibility for the dying process onto another.

The Netherlands and Luxembourg permit both euthanasia and assisted suicide. Belgium allows only doctors to perform euthanasia. Assisted suicide is not explicitly covered but there appears to be acceptance that it would be permitted within the provisions. All four American states permit only physician-assisted suicide, which is broadly the route now being proposed in Scotland, whereas England and Wales have seen proposals for assisted dying.

Switzerland permits assisted suicide but excludes euthanasia. The law does not require a physician to be involved, nor does it require the recipient to be a Swiss national. This latter aspect of Swiss law is unique and the Dignitas clinic in Zurich has been the focus of much discussion around what is referred to as “suicide tourism”.

The European human rights conundrum

During the committee hearings on the Scottish bill this week, the Law Society of Scotland indicated that it could be in breach of the European Convention on Human Rights (ECHR). This stems from rules that that prohibit the Scottish government from passing laws that are incompatible with the convention.

One potential area of incompatibility is Article 2, which protects the right to life. The English case of Diane Pretty in 2002 noted that the right to life could not, without a distortion of language, be interpreted as conferring a “right” to die. Understandably, states place great emphasis on the value of human life and their obligation to protect this may outweigh an individual’s right for assistance to end life.

It is worth pointing out in the this context that most legislation in place does not confer a personal right to seek assistance to die, however. It is arguably broader than that, since it creates an environment where, under certain conditions, it is lawful for that help to be provided. That might be a key distinction for reconciling ECHR Article 2 and the forthcoming UK laws, assuming they are enacted.

Through a series of English cases, there has been much legal discussion on whether the present law on assisting a suicide is incompatible with Article 8 of the convention (right to respect for private and family life). In June 2014, in the case of Nicklinson and others, the UK Supreme Court concluded that it was the role of parliament to decide whether current law was incompatible with the provisions of Article 8. This is what is currently happening as both the Westminster and Scottish parliaments consider their proposed assisted dying legislation.

The problem of ‘practical assistance’

When legislation was passed in Oregon in 1997, some of the first challenges came from those who argued that if they wished to end their lives the law prevented them because they lacked the ability to hold the medication in their hands or put in it their mouths and ingest it. This was particularly an issue with people with progressive neurological diseases.

So one important question for the UK legislators will be, if assistance is provided, at what point does it cease to be assistance and instead become euthanasia – the primary responsibility having passed to another to bring about death? There is whole spectrum of what may be construed as assistance – helping someone travel to another country to die might be included for example, though to date the law has not recognised this as assistance. But is holding a person’s head up, or putting pills into their hands or mouths, or giving them a glass of water, euthanasia or assisted suicide?

Other issues are vital too. There is the question of the protection of those who are vulnerable. And society will need to ensure that any law, if introduced, applies equally and transparently to all. In short, as the UK moves towards joining the group of countries who permit some form of assisted dying, there is still much that needs carefully considered first.