The legalo-ethics position on assisted suicide
Mike Semple Piggot
I was talking to Colin Samuels about the amendments to our law on suicide being put forward by Lord Falconer – an amendment which failed to pass scrutiny in the House of Lords. We thought it would be interesting to debate this issue, comparing and contrasting the position taken in the United Kingdom and in the parts of the United States.
As always – we welcome your contribution to knowledge, analysis and discussion in the comments section. I set out the current position, as best as I can, in the United Kingdom with a few observations.
Lawcast 152: Lord Falconer on assisted dying and the new Supreme Court of the United Kingdom
Today I am talking to Lord Falconer, a former Lord Chancellor, about two important and interesting themes – assisted dying and his amendment to the Suicide Act defeated in the Lords recently and secondly his thoughts on the reasoning behind establishing a new Supreme Court and the direct it may, in time, take.
Lord Falconer became Lord Chancellor In 2003, with the remit of abolishing the office. His reform included the creation, for the first time, of a Supreme Court for the UK, the creation of a commission to appoint judges, making a full-time independent judge the Head of the Judiciary for England and Wales, and introducing an elected Speaker for the House of Lords.
The Guardian reports: The death of Sir Edward Downes and his wife Lady Joan is likely to add further intensity to the debate over the law on assisted suicide, as it continues to be subject to both political and legal challenge.
Despite former Lord Chancellor Lord Falconer’s championing of an amendment to the law on assisted suicide which failed in the Lords recently – the law remains as it was, subject to developing DPP discretion on prosecution (Infra), in 1961 – providing the interesting anomaly where an accessory can incur liability when the principal does not commit a criminal offence.
1. THE LAW ON SUICIDE
The Suicide Act 1961 decriminalised the act of suicide so that those who failed in the attempt would no longer be prosecuted (S.1)
section 2(1) states:
- A person who aids, abets, counsels or procures the suicide of another, or attempt by another to commit suicide shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years”.
Article 2 of the European Convention on Human Rights provides:
- 1. Everyone’s right to life shall be protected by law. No-one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
Pretty v Director of Public Prosecutions (2002) 1 AC 800 saw the first human rights challenge to the law on suicide. The House of Lords found that Mrs Pretty’s art 8(1) rights were not engaged by the DPP’s refusal to undertake that he would not consent to her husband’s prosecution if he assisted her in committing suicide. The European Court of Human Rights found that they were: Pretty v United Kingdom (2002) 35 EHRR 1. The decisions were clearly inconsistent.
Lord Judge CJ stated: “Assisted suicide is a crime. That is clear and unchallenged in this case. The reason is simple. Section 1 of the Suicide Act 1961 abrogated the rule of law that suicide is a crime. However section 2 of the Act continues to impose criminal liability for complicity in another’s suicide…
In short, the law which governs this case was made by Parliament. It is clear and unequivocal. We cannot subject it to judicial interpretation and produce a meaning which the statute does not bear. The statute does not admit of exceptions. We cannot suspend or dispense with the law. That would contradict an elementary constitutional principle, the Bill of Rights itself . Parliament alone has the authority to amend this law and identify the circumstances, if any, in which the conduct of the individual who assists or attempts to assist another to commit suicide should be de-criminalized.”
The role of the DPP
Attention turned to the role of the DPP. Section 2(4) of the Suicide Act 1961 provides “(4) … no proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions.”
Lord Judge in R (Purdy) v Director of Public Prosecutions  went straight to the heart of the matter: “ The real question which arises is this: can the Director of Public Prosecutions (“the DPP”) be required to promulgate an offence-specific policy identifying the facts and circumstances he will take into account when deciding whether, on the assumption that there is sufficient evidence to prosecute a defendant under section 2(1), it will not be deemed in the public interest to do so? The question arises because the appellant, Ms Purdy, who suffers a debilitating illness, has declared her wish to travel abroad to take her own life. For the purposes of the forensic argument her claim is based on her wish to know whether or not her husband, Mr Puente, will be prosecuted if, in these circumstances, he aids and abets her suicide: in reality she wants to know that he will not.”
The Court of Appeal held: The Director of Public Prosecutions did not act unlawfully in failing to publish detailed guidance as to the circumstances in which individuals would or would not be prosecuted for assisting another person to commit suicide.
This is a complex and emotive issue and The House of Lords, which is yet to deliver judgment on a further appeal by Purdy, acknowledged last month that the offence of assisted suicide was being committed but there was no clear guidance as to whether prosecutions should be brought.
The Guardian notes: “If it is up to prosecutors up and down the country [to decide whether to prosecute], I can see the need for a code to guide them as to consistency,” the senior law lord, Lord Phillips, said.
This is but a brief summary of the law going straight to the salient issues.
2. LORD FALCONER’S ATTEMPT TO AMEND THE LAW ON ASSISTED SUICIDE
Attempts to change the law suffered a fresh blow last week when an amendment to the 1961 Suicide Act proposed by the former lord chancellor, Lord Falconer, was defeated. This month the British Medical Association also opposed a change to the law.
Under United Kingdom law it is not against the law to travel abroad to have an assisted suicide in a country where it is legal, but it is against the law to accompany or enable somebody to travel abroad to die – a crime punishable by up to 14 years in prison (Supra).
Baroness Jay said in a statement to the press: “We need to wake up to the reality of what is happening. There are now nearly 800 Britons who are members of the Swiss assisted suicide clinic Dignitas, and over 100 Britons who have travelled abroad to die.”
The authority to prosecute under section 2(4) Suicide Act 1961 lies with the Director of Public prosecutions and while the DPP has declined to promulgate a specific policy on when he will or will not prosecute (Infra) the current Director of Public Prosecutions (DPP) and his predecessor have not sought prosecutions for those cases where assisted suicide has been evident, citing insufficient public interest in doing so.
(b) Lord Falconer’s amendement
An amendment to the Coroners and Justice Bill put forward by former Lord Chancellor Lord Falconer (defeated in Parliament in July 2009), was designed to protect from criminal prosecution those who assist their loved ones in travelling abroad to end their lives.
A note on the Samaritans website states: ” Writing in the Times, Lord Falconer said that he was not calling for a full scale review of the suicide law, as this “important debate needs proper time and full engagement from both the public and Parliamentarians”. Instead, he stated, he is tabling the amendment to make sure “that the law reflects the sensible position adopted to date by the courts and the DPP, while protecting people from abuse”.
The proposed amendment said that two doctors must confirm, independently of each other, that the person travelling abroad to die is terminally ill and competent to make such a decision. The patient must also put their request in writing in the presence of an independent witness who does not stand to benefit from their death.
A similar amendment by former Health Secretary Patricia Hewitt was defeated in the Commons.
3. ETHICAL, RELIGIOUS AND MORAL OBJECTIONS
Here I do no more than collate a few statements gleaned from press reports and I do so without comment at this stage.
The Most Reverend Peter Smith, the Archbishop of Cardiff, said: “Legalising assistance with suicide is morally wrong in itself and would put vulnerable people at grave risk”
Lord Alton of Liverpool said: “This is the third time we have had an attempt to legislate in this way in this Parliament.” He added the British Medical Association and the royal colleges “remain opposed to any change” because, he says, “they know it would change irreversibly the medical profession if doctors and nurses have to become destroyers of life rather than defenders”.
Dr Peter Saunders, director of Care Not Killing Alliance, argues that the existing law does safeguard against an abuse of the system. He says Lord Falconer is “dangerously naïve” to suppose that people who are helped to commit suicide are always “‘loved ones'”, stating that people with “sinister motives” could exploit a change in the law.
4. SUPPORT FOR CHANGE
There is, c;learly, support for change. Lord Falconer and Baroness Jay had considerable support, if not quite enough, in the Lords. The DPP and his predeccessor have not sought prosecution in cases of assisted suicide for many years.
The Samaritans note: Pro-euthanasia campaigners, however, welcomed Lord Falconer’s proposal. Sarah Wootton, chief executive of Dignity in Dying – an organisation that advocates assisted dying for terminally ill patients, said that the public “overwhelmingly support change”.
Ms Wootton commented that the proposed amendment “gives politicians the opportunity to listen and act.” She added: “We cannot directly regulate foreign assisted suicide clinics, but we can change the law to end the unnecessary threat of prosecution whilst safeguarding against abuse.”
For my part, I support the amendment proposed by Lord Falconer and Baroness Jay. I use the phrase’ ‘for my part’ carefully (for I do not seek to speak for others in this blog debate) and to apply only to myself should I be in the unfortunate position later in life of needing to take my own life due to medical circumstance.
I would like to have the right to die in this country by medically supervised suicide – should I be in the unfortunate position of having to end my own life. The law is unlikely to change in my remaining lifetime to permit that. If I had to resort to going to Dignitas in Switzerland or some other ethanasia frendly jurisdiction I would want to die with someone I cared about with me – if they could bring themselves to assist in travel. I believe that it is an unassailable personal freedom to determine the manner of my owbn living on Earth, subject to the usual caveat about harm to others or infringeing laws likely to harm others.
Under the present Suicide Act 1961 I am allowed to blow my own head off with a 12 bore shotgun (provided I have a firearms licence) or perhaps do as a taxi driver did only the other day and decapitate myself by tying a rope around my neck, the other end of the rope tied to a solid object, and then drive very rapidly away. I could even overdose or use other horribly painful methods of suicide which may well not succeed in killing me. Surely, our government can do better than this and allow those who wish to die, for good medical reason, to die with dignity and in a medically supervised and painless mway? Surely our government and ourt people can permit freedom of choice (subject to the safeguards proposed by Lord Falconer) and allow us that individual freedom of choice and not bring prosecution or the threat thereof down on the heads of loved ones who assist?
We all have our views and thoughts on this. I hope you will express yours.
PODCAST WITH LORD FALCONER
I have just heard that Lord Falconer, former Lord Chancellor, who tabled the amendment will do a podcast with me on the subject and I will post this on the Charon QC blog and on Unsilent Partners when it is published. I don’t have a precise date yet.
RESPONSE BY COLIN SAMUELS
I agree with most everything you’ve said. While such agreement makes for a poor debate, I hope that we’ll still enjoy a lively discussion! Come to think, however, perhaps “lively” is a poor choice of words to associate with our topic this week? I digress.
Lord Falconer’s effort is a humane one and, despite the unfortunate defeat of his amendment in the House of Lords, hopefully not the last such effort to address this important concern. As you noted a couple of weeks ago, Falconer has recognized that the state’s decision not to prosecute family members and others who accompany terminally ill persons to their suicides is of little reassurance to those relatives, friends, and patients:
We are in this awful situation where people who travel with relatives probably won’t be prosecuted, but can’t be sure. It means people are going to clinics on their own, or going earlier than they otherwise would, which can’t be right. In my view rightly, the [Director of Public Prosecutions] has refused to prosecute around 100 people in these cases. The law must be brought in line with actual practice and the change in public views on these issues.
That prosecutions could be brought, even though they generally have not been, inhibits free association, free movement, and other legal conduct, and is also an open invitation for selective enforcement against unpopular defendants or in celebrated cases. Any of these strike me as more damaging to society overall than would be the decisions of a relative few to end their lives when they choose to do so, in a legal place and manner, and supported by family and friends. Essentially, Falconer’s initiative is a call to harmonize our laws with current popular thinking about the role of government in private decision-making and the place of the competence of individuals to assess their own most critical needs. That laws should be carefully considered before enactment and consistently applied thereafter seems self-evident; I see no compelling reason why such general principles should not be applicable to an emotional and religiously-sensitive issue such as this one.
It’s certainly not a new issue. The concept of a “rational death” dates at least as far back as Classical Greece and the founder of the Stoic school of philosophy, Zeno of Citium. Amongst the Stoic beliefs was “Kathekon”, which (I’m so far out of my depth that I can’t see it from here) comprises “perfect” actions which are attuned to nature’s perfection. One aspect of Kathekon was the understanding that a person’s death could be prompted to occur at an optimal time. In an account by Diogenes Laërtius, Zeno’s somewhat odd demise is described. Already into his seventies in an era when the average lifespan was approximately half that age, Zeno was returning from his school when he stumbled and injured his toe. Taking this as the signal that it was his time to die, he suffocated himself. It’s worth noting that that Stoic morality did not sanction frivolous, senseless suicides; Zeno’s story is presented as the considered act (however briefly so) of an intelligent man. Whether his act of self-destruction was hyper-rational or irrational is difficult to assess, considering the probably apocryphal nature of the story and the obscurity of his morality. Regardless, it illustrates humanity’s timeless desire to control the seemingly-uncontrollable end of one’s life and to ensure that one’s death is comfortable and meaningful, as hopefully his or her life has been to that point.
In modern times, various religions hold that an afterlife provides that sense and meaning and, further, that these are diminished or destroyed entirely by suicide. Apart from some members of the medical profession, I think that it’s safe to say that the various arguments against assisted suicide, voluntary euthanasia, or other variations of these end-of-life decisions are generally based on religious considerations, directly or indirectly (where religious norms have become cultural norms as the will of the majority over time). As has been the case with debates about abortion rights and, to a somewhat lesser extent, the death penalty, clergy and the religious faithful are often the most outspoken opponents of these laws. While one can appreciate the consistency of their position — that all lives must be protected, from conception to natural death, regardless of society’s subjective determinations about the quality or value of those lives — the religious basis for that view cannot (or should not) be an adequate and appropriate basis for laws promoting that viewpoint or opposing alternative beliefs.
In liberal, heterogeneous democracies like Britain’s and America’s, laws based solely upon orthodox religious values are simply untenable over the long term. If the current generation are orthodox believers, the next may not be; the current majority belief may be diluted by an influx of adherents to other faiths; the irreligious naturally resist faith-based legal or moral coercion. It seems futile to suppose that the right approach to “values” lawmaking is to adopt an atheistic position to counter differences between religions or to count noses and adopt the beliefs favored by the greatest number of people. Difficult though it may be to reconcile the seemingly irreconcilable differences amongst various identity groups, such reconciliation is necessary to maintain a cohesive society.
Even though suicide would be unthinkable for them, when death is near or chronic illness becomes unbearable, I suspect that even a very religious person’s thought processes will often mirror those of agnostics or atheists. If we try to find some areas of (perhaps grudging) acceptance, these would likely be that the wish to die is accepted as rational only amongst the terminally ill, perhaps including those with non-terminal but extremely painful and persistent conditions; that any meaningful preparations meant to facilitate or hasten death should not be impulsive, prompted by a mental or emotional impairment, or by the undue influence of others; and that decision-making processes should be generally-understandable. These are the very points which are generally-addressed by the legislation proposed by Lord Falconer, by the policies of the Dignitas clinic in Switzerland, where Sir Edward Downes and his wife ended their lives together this week, and by laws in force in the American state of Oregon. It’s worth looking more at each of these in turn.
Lord Falconer’s amendment would have required examinations and certifications by two doctors that a patient is terminally ill and recommended a declaration of intent by the patient before another witness. Implicit in these safeguards is the understanding that the process would take some time, thereby preventing impulsive or capricious actions. At the Swiss Dignitas clinic, established policies address these same concerns. Steven Hodson noted that, “It’s not an easy process to go through so it’s not like you wake up one day and phone up Dignitas to make an appointment to die with some dignity.” The Guardian Online website found that of the 800 Britons who had contacted Dignitas, just thirty-four had received a preliminary approval to end their lives there and of those, few had made further arrangements:
The 34 Britons given what Dignitas calls a “provisional green light” to die have provided documentary evidence of their condition and been interviewed by both a doctor and Ludwig Minelli, the founder of Dignitas, and satisfied them that they are mentally fit to make such a decision.
One of the 34 is due to undertake an accompanied suicide very soon. Four have already secured fixed dates for their deaths, but adjourned them. The remaining 29 have not yet arranged a specific date.
A further four British people failed to get Dignitas’s permission after the Swiss doctor who examines all applicants said they should not be helped, either because they did not have an incurable illness or were judged not of sound enough mind to reach such a decision.
This is clearly not a “numbers” business or one without careful procedures in place. It does not accept the healthy but depressed; it does not accept those who are evidently pressured into their “choice” by greedy relatives; it does not accept those who had a few frequent flyer miles and have made a spur-of-the-moment decision to end their lives in lovely Switzerland, amidst fine chocolates and cuckoo clocks.
In the United States, the State of Oregon has gone further than any other to legalize assisted suicide. In 1994, the voters of the state proposed and passed a ballot measure to establish the Oregon Death With Dignity Act. In the interests of full disclosure, I should note that worked to promote the measure during my first and second years in law school in Salem, Oregon, the state’s capital. The measure passed by a narrow majority in 1994, but in 1997, when the state’s legislature proposed a ballot measure to repeal the law, that measure was defeated by a much wider margin.
The safeguards and limitations of the law are considerable: to prevent Oregon from becoming a “suicide tourist” destination, the availability of physician-assisted suicide is limited to adult Oregon residents; a requesting resident must be diagnosed with a terminal illness that is expected to take his or her life naturally within six months; the request for a life-ending dosage of medications must be made in writing and witnessed by at least two people; while one witness may be a relative, at least one witness to the request must be unrelated to the patient, may not be entitled to receive any proceeds of the patient’s estate under his or her will, and may not be the patient’s physician or an employee of any medical facility which has treated the patient; another physician must then review the patient’s records and confirm the treating physician’s diagnosis of a terminal condition; even after this second review, a patient must then wait more than two weeks and make a second (confirmatory) request for a lethal dosage of medication; during this lengthy process, the patient may rescind his or her request at any time and if at any point either the treating or reviewing physician suspects that depression or another mental impairment or undue influence by another person has prompted the patient to make or continue his or her request, the patient is compelled to undergo a thorough psychological evaluation.
Two Attorneys General under the Bush Administration challenged the application of the Oregon law. Specifically at issue was the liability of physicians for prescribing lethal dosages of controlled medications pursuant to the state procedures. Attorney General John Ashcroft issued what was known as the “Ashcroft Directive”, which declared that such a prescription served no “legitimate medical purpose” as required by the applicable controlled substances acts. Essentially, this directive jeopardized the ability of any physician participating in the Oregon Death With Dignity processes to continue practicing medicine. When Attorney General Alberto Gonzales replaced Ashcroft, he continued to defend the Ashcroft Directive. The Directive was challenged by the State of Oregon and was invalidated at the trial and appellate levels. In 2005, the Supreme Court heard arguments and, reporting on those arguments, Lyle Denniston noted that the Court seemed closely divided. The Court’s 2006 decision in Gonzales v. Oregon surprised many who expected that Federal authority would be affirmed in that case as it had been in many others. Instead, in a 6-3 majority opinion written by Justice Anthony Kennedy, the Court found that the states’ traditional “police powers” to regulate the medical profession within their boundaries could not be overridden by an administrative dictate like the Ashcroft Directive and that the general authority granted to the Federal government to regulate drugs and enforce drug policies could not be interpreted so broadly as to allow an Attorney General to bar the dispensation of controlled substances for a particular purpose where, as here, a state’s laws specifically permitted it. In his comments announcing his opinion, Justice Kennedy noted the federal law’s limited purpose, the states’ extensive role in regulating medical practices, and the Oregon law’s particular safeguards against abuse. He noted that:
Although the dispute in this case is, in part, a product of the nation’s political and moral debate on assisted suicide, the central question is whether the interpretive rule is authorized by the [Controlled Substances Act]…. The statute and our case law amply support the conclusion that Congress sought to regulate medical practice insofar as it bars doctors from using their prescription-writing powers as a means of drug dealing and trafficking as traditionally understood. The CSA, however, manifests no intend to regulate medical practice generally…. Our federal structure of government gives the States great latitude to legislate to protect the lives and health of their citizens…. The Oregon regime discussed above is an example of the very State regulation the CSA presupposes.
With its opinion, the Court emphasized that it was not endorsing the Oregon Death With Dignity Act’s objectives, but merely recognizing its authority to do so or, more properly, the Federal government’s lack of authority to stop it from doing so in this manner. The statute at issue, the Controlled Substances Act, did not address the matter particularly, but another law which did specifically prohibit assisted suicide would likely be upheld.
In an earlier case, Washington v. Glucksberg, the Court had determined that the “Due Process Clause” of the Fourteenth Amendment to the Constitution did not establish a fundamental liberty interest in assisted suicide. The Court found that Oregon’s neighboring state, Washington, could therefore ban assisted suicide to further compelling state interests, including preserving life, protecting the mentally ill and disabled, and maintaining the integrity of the medical profession. In announcing the Court’s unanimous opinion, then-Chief Justice William Rehnquist framed the issue as “not the broad question of whether there is a constitutional right to determine the time and manner of oneâ€™s death but instead whether the liberty protected by the Due Process Clause includes a right to commit physician-assisted suicide.” Chief Justice Rehnquist noted the traditional prohibitions in Anglo-American law against suicide and assisting suicide, continuing, “It is true that attitudes towards suicide itself have changed over the years, but it is still regarded as a grave public wrong.” He concluded by speculating about the possible effects of those changing attitudes, suggesting that Washington’s laws (and others’ similar laws) were “preventing a Netherlands style slide to voluntary and perhaps even involuntary euthanasia.”
In his remarks, Rehnquist noted that “almost every state” shared Washington’s stance on the issue; Oregon, of course, did not, and in her concurring opinion, Justice Sandra Day O’Connor alluded to the significance of that divergence:
Every one of us at some point may be affected by our own or a family member’s terminal illness. There is no reason to think the democratic process will not strike the proper balance between the interests of terminally ill, mentally competent individuals who would seek to end their suffering and the State’s interests in protecting those who might seek to end life mistakenly or under pressure. As the Court recognizes, States are presently undertaking extensive and serious evaluation of physician assisted suicide and other related issues.
The effect of the Glucksberg and Gonzales v. Oregon decisions is that while individuals have no Constitutional right to assisted suicide, neither are they prohibited from it if their state chooses to “strike the proper balance” as Oregon has. In this sense, Justice Louis Brandeis’ oft-cited characterization of the individual states as “laboratories of democracy”, where new and different approaches to challenging issues may be tried, seems particularly germane. In America, it will likely be at the state level where the changing attitudes noted by Justice Rehnquist will overcome the weight of Anglo-American legal history and the cultural remnants of once-shared religious beliefs.
It seems to me that much of the thinking on this issue is intrinsic in the human condition; it’s acceptance of the last step — the suicide itself — where the sides diverge. I don’t mean to make light of that difference; it’s certainly a substantial one to overcome. Notwithstanding, as diverse societies, the authority of the state to adopt or continue to enforce a majority’s religious values as law must be carefully limited. While the clearest prohibitions against voluntary death are based in various religious scriptures and doctrines, unless a non-religious justification can be plausibly found, such prohibitions seem unsustainable as law. We all hope for “good” deaths. For some, this means a struggle to live life for as long as the bleeding edge (another poor choice of words?) of medical science will permit. For others, this means a natural death in keeping with closely-held religious beliefs. For others, this means that when terminal illness is diagnosed, a slightly earlier end seems a fair trade for some measure of physical and emotional comfort. I’m sure that there are still others who chafe at any restrictions on their abilities to control their own lives and, by extension, their deaths; these few might suggest that one should be able to kill oneself and have medical assistance to do so at any time, regardless of health, depressed mental condition, or greedy relatives’ urgings.
In attempting to find some common ground on this issue, though, I think that accepting that “rational death” is possible where lucid people make considered, uncoerced decisions to end their lives on their own terms where long-term or terminal illness or very old age has brought the natural end of their lives into the short-term future. That’s certainly a step beyond where society probably sees its “shared” views currently, but I think that that posiion will continue to become more mainstream, particularly as the Baby Boom generation reaches an older age and begins to regularly confront their own deaths and those of their close contemporaries. Efforts like Lord Falconer’s will not be isolated ones in coming years; laws like those in the State of Oregon will become more common as the law, always a laggard to changing societal norms, comes to appreciate the distance we’ve progressed in our thinking on end-of-life issues.