by Nataly Papadopoulou, School of Law, University of Leicester

Religious penalties for suicide were only abolished in 1823 and civil penalties in 1870;[1] suicide was, however, also penalised under the common law in England.[2] In failed suicide attempts, the common law imposed severe sanctions to the individual.[3] Closer to 1961 the case law indicates changing attitudes.[4] In successful suicides, the common law focused on the deceased’s reputation and fortune. With the introduction of the Suicide Act in 1961, attempted suicide and suicide were no longer criminal offences. In July 1961, Mr Eric Fletcher during the Suicide Bill debate spoke of compassion and the need to assist, not punish the suicidal.[5] The Act, however, established a new offence: encouraging or assisting suicide or attempted suicide is prohibited and penalised by up to 14 years of imprisonment.

Since then, numerous attempts have been made to reform the law.[6] Here, I focus on the most recent one the Assisted Dying Bill (‘ADB’) 2013–15. The Bill would enabled competent terminally ill adults to be provided at their request with assistance to end their own life (section 1(1)). The person had to have clear and settled intention to end life, had made the relevant declaration, was aged 18 or over, and had been resident in England and Wales for at least a year before the request (section 1(2)). A terminal illness was defined as an ‘inevitably progressive condition’, irreversible by treatment and likely to lead to death within 6 months as diagnosed by a registered medical practitioner (section 2(1)). A person had clear and settled intention if a declaration was made and signed in the presence of a ‘witness’ who is not a relative or directly involved in the person’s care or treatment (section 3). The declaration must then be countersigned by ‘the attending doctor’,[7] the registered medical practitioner from whom the person has initially requested assistance, and the ‘independent doctor’,[8] another registered medical practitioner who is not a relative, partner or colleague of the ‘attending doctor’. Both need to separately and independently examine the person and his or her records to confirm the terminal illness, the capacity, and the clear and settled intention. The decision also needs to be voluntary and informed, free from coercion or duress. The declaration can be revoked at any time, and only the person concerned can initiate the procedure. The Bill also made additional provisions for the actual prescription and delivery of medicines, as well as their administration, and the role of the doctors.

The Second Reading of the ADB took place in June 2014 and lasted 10 hours (133 listed speakers). The Lords talked about safeguards, difficulties of diagnosis and prognosis, other end of life care, autonomy, compassion, the terminal illness definition, the involvement of doctors, and so on. The ADB eventually proceeded to Committee. The first day took place in November 2014 with 175 amendments to be considered. The Lords primarily considered whether judges should be involved along with doctors in the assisted dying procedure, and if so, how.

Lord Pannick’s amendment was the most popular among the Lords. It sought to require that, In addition to the two doctors, the individual considering a request must convince the Family Division of the High Court that a voluntary, clear, settled and informed decision to end life exists. Lord Pannick argued that High Court judges already make such decisions, for instance, in withdrawal of life-sustaining treatment cases, or cases of conjoined twins where separation is required. The ADB had another day of Committee debate in January 2015. The focus was Amendment 12B, eventually rejected, that proposed a change of the Bill’s name from Assisted Dying Bill to Assisted Suicide Bill. Amendment 12B was very likely an attempt to stop the Bill’s progress through the House. A most powerful speech was given by Lord Cashman who distinguished between the wish of a healthy man to commit suicide, and a dying man’s only option: dying. There was no further debate in the House of Lords. A revised version of the ADB was introduced in the House of Commons in June 2015. In September 2015, a hasty House of Commons overwhelmingly rejected the ADB No2 with 330 to 118 votes.

It is highly problematic that the Commons most impatiently dismissed the ADB No2. It is absolutely essential that the UK Parliament finds time to discuss matters of utmost and pressing nature, including assisted dying. Setting aside, for a moment, arguments relating to compassion, personal autonomy, dignity, choice and so on, there are practical considerations that the UK Parliament simply cannot ignore.

First, the ever increasing number of Britons travelling abroad to be assisted in dying, with media reporting that one Briton a fortnight receives assistance in Dignitas – the right-to-die clinic in Switzerland.[9] Second, several medical practices that are related to euthanasia or assisted suicide that are already widely practiced including, DNACPR orders (‘do not attempt cardiopulmonary resuscitation’), palliative sedation (putting patients to sleep using sedative medication), DDE (‘the doctrine of double effect’) the provision of drugs that have a double effect, for instance, relieve pain but also hasten death, and the withdrawal of life-sustaining treatment. These practices are, of course, different in many respects to euthanasia or assisted suicide, but very similar in the sense that ‘the end result’ is, in essence, the same.

Most essential, however, is the international consensus that is currently forming around the world. While closer to home, in Europe, the Netherlands and Belgium have officially legalised assisted suicide and euthanasia in 2002, Luxembourg in 2009, and Switzerland essentially works through the right-to-die organisations, assisted dying developments are now moving across the Atlantic. Oregon was the first US state to legalise medically assisted dying back in 1997, even before the European countries. Since then, Vermont, Washington, and California have followed the Oregon model. Canada has also very recently permitted medically assisted dying. At the moment of writing, Washington DC and Colorado are similarly considering ‘dignity in dying laws’. Moreover, it has been very recently reported that the Dutch are considering extending the scope of their law to cases of existential suffering, in other words, to those individuals who consider their lives to be ‘completed’ or to those who are ‘tired of life’. As expected, this has already been the subject of criticism.

The question that comes to mind when reading reports on the Dutch legislation, as well as the US developments more generally, is the following: why is the UK government so reluctant to even discuss assisted dying, at a time that a country, not more than 230 miles away is considering extending its law to those who feel that their life is completed? And what would be the effect, if any, of the forming consensus in the US for the UK and assisted dying?

[1] Georges Minois, History of Suicide: Voluntary Death in Western Culture (Johns Hopkins University Press 2001), p. 297.

[2] William Blackstone, Commentaries on the Laws of England (1775) Chapter XIV: Public Wrongs, p. 142. See also R. v Mann (1914) 10 Criminal Appeal Reports 31, and Beresford v Royal Insurance Company Ltd [1938] AC 586 [HL].

[3] R. v Saunders (William Thomas) (1914) 9 Cr. App. R. 119 (attempted suicide: six months’ imprisonment reduced on appeal to immediate release when doctor reported safe to do so); R. v Montgomery (Walter) (1930) 21 Cr. App. R. 140 (attempted suicide and bigamy: sentence reduced to three months’ imprisonment for showing remorse); R. v Crisp (Henry) (1912) 7 Cr. App. R. 173 (attempted suicide: sentenced to six months’ imprisonment  reduced on appeal to six weeks’ imprisonment); R. v Wilson (Alfred) (1914) 9 Cr. App. R. 32 (attempted suicide: eight months’ imprisonment with hard labour reduced on appeal to ten weeks’ with hard labour – driven to crime by starvation).

[4] See for instance, R. v French (Edward) (1955) 39 Cr. App. R. 192.

[5] HC Deb 14 July 1961, vol644 cols833-845.

[6] Patient (Assisted Dying) HL Bill (2002-03) 37; as originally introduced: Assisted Dying for the Terminally Ill HL Bill (2003-04) 17; as originally introduced: Assisted Dying HL Bill (2013-14) 24. See also, Patricia Hewitt’s and Charles Falconer’s proposed amendments to the Coroners and Justice Bill 2008-9, and the Commission on Assisted Dying Report 2012.

[7] The General Practitioner (GP) of the person or a specialist consultant.

[8] The independent doctor must be from a different practice or clinical team and ‘suitably qualified’ (as specified in regulations) in diagnosing and managing terminal illnesses.

[9] See DIGNITAS statistics, ‘Menschenwürdig leben – Menschenwürdig sterben – Forch-Zürich’ http://dignitas.ch/images/stories/pdf/statistik-ftb-jahr-wohnsitz-1998-2014.pdf and ‘Dignitas members and assisted suicides’ https://docs.google.com/spreadsheets/d/1wGnywuF-fD_euq1Bjb88IgIwbFZtuY7dCm0dZ_UbUNE/edit#gid=1&vpid=A2, accessed 24 October 2016.