Six states in the US and four countries in Europe have legalised some form of assisted dying. Meanwhile, in December 2016, Andrew Barclay – who suffered from advanced multiple sclerosis – became the latest person from the UK to travel to Switzerland to end his life. Barclay is one of more than 244 terminally-ill Britons who have had to travel abroad to end their life, legally.
It’s time for the UK to legalise some form of assisted dying and give people the right to choose when and how to die. The case of whether the law should change in the UK has been widely discussed. Now we need to talk about how it should be done. The experience and legal rules in countries that already permit some form of assisted dying can act as a guide.
In England and Wales it is illegal, under the Suicide Act 1961, to assist or encourage another person to take their own life. (It is even illegal to attempt to assist or encourage another person to take their own life.) But Crown Prosecution Service guidance allows prosecutors to use their discretion, so prosecutions are rare. Numerous proposals to reform the act have failed. The latest proposal was rejected by the House of Commons in September 2015 by 118 to 330 votes.
In Scotland, the situation is more complicated. It is not clear whether suicide or attempted suicide is, or ever has been, illegal under Scottish law. So, unlike England and Wales, there was no need for a law to make suicide or attempted suicide legal. Acts that may assist or encourage suicide or attempted suicide fall under the criminal law of homicide.
The law in other places
Oregon, US, was the first place in the world to pass a law that allows doctor-assisted dying. The law in Oregon allows mentally-competent terminally-ill people who make a request, free from external pressure, to be given drugs to end their own lives. The person must be physically able to take the drugs.
Other states have followed Oregon: Washington in 2009, Vermont in 2013, California in 2015 and Colorado in 2016. A similar law was introduced in the District of Columbia in February 2017. Montana also allows doctor-assisted dying but there is no written law. In 2009, the Montana Supreme Court decided in Baxter v Montana that there is nothing in the court’s precedent or other practices saying that doctor-assisted dying is against public policy. Minnesota and New York City are currently considering legalising doctor-assisted dying.
In South America, Columbia recognises the right to die. Similar to the US, it allows only terminally ill people access to doctor-assisted dying.
And in Europe, under the Swiss criminal code, assisted suicide is legal unless there are “selfish motives”. The role of doctors is indirect, but necessary, as they need to prescribe sodium pentobarbital, the drug used in Switzerland for assisted suicide. The assistance is mainly done by right-to-die voluntary organisations. Dignitas is the most well known, perhaps because of the high number of non-Swiss citizens who have used it. The Benelux countries, the Netherlands and Belgium in 2002, and Luxembourg in 2009, allow both euthanasia and assisted dying (although Belgium only explicitly refers to the former). A person does not need to be physically able to take the life-ending drugs, unlike the US, as another person is allowed to help (euthanasia). The Benelux countries don’t allow just terminally ill people to request assisted dying. They use an “unbearable suffering” criterion that may cover physical and mental suffering. Under strict conditions, this may sometimes make people suffering from depression eligible.
There are many arguments in favour of legalising assisted dying, including personal autonomy, compassion, alleviation of suffering, dignity and choice. The UK government’s repeated reluctance to review the law is unacceptable, especially in light of frequent reports of people taking their own life at home or travelling abroad early in their disease to end their life.
The laws in the US and Europe point to an interesting distinction between two ways to legalise assisted death – one based on terminal illness and one based on unbearable suffering. Switzerland and Canada are straddling between the two types of eligibility options. In Switzerland, right-to-die organisations have their own criteria but do not limit the option to the terminally ill. In Canada, the 2016 law allows doctor-assisted dying for terminally ill people but without a prognosis necessarily having been made as to the specific length of time that they have remaining.
The UK should use the European experience and legal rules as an example. The terminal-illness criterion is limiting and excludes people suffering from non-terminal illnesses, including locked-in-syndrome, multiple sclerosis and people with serious mental health problems. This prolongs their suffering and denies them rights that terminally ill people are offered. The European model, although not without problems, is a more compassionate answer to the dying wishes of unfortunate and suffering people. It places them at the centre of the procedure, and makes their own experience of suffering a priority by not focusing on the characteristics of the terminal condition or disease.
It’s time for the UK to legalise some form of assisted dying. The experience and legal rules in the Benelux countries should form the basis for the discussion on reform. It is time to give people who are suffering – and not just terminally ill – the fundamental human right to control life and how to end it.