Euthanasia: The History & The Law

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The Current Law

The Suicide Act 1961 makes it an offence in England and Wales to assist someone if they commit suicide.  Assisted suicide is punishable by up to 14 years’ imprisonment; however, committing an offence does not automatically result in prosecution.

The Director of Public Prosecutions (DPP) has to consider whether a prosecution is in the public interest and in February 2010, published guidelines that set out the criteria under which someone would be prosecuted should they be charged with assisting a suicide. However, following her appointment, in October 2014 the DPP – Alison Saunders – rewrote part of the guidance, leading some to claim that “doctors can now be involved in assisting suicide with almost no fear of prosecution, provided they don’t have a professional relationship with those they ‘help’.” This is clearly a matter of considerable concern.

This set up has resulted in an arrangement with respect to assisted suicide which the eminent former judge and Crossbench Peer, Baroness Butler-Sloss has described in the following terms: “We have a law with the “teeth” to deter and the discretion, where appropriate, to temper justice with mercy.”

Assisted Suicide in the courts

There have been many attempts to liberalise the law on assisted suicide in the courts over the years, all made by patients with terminal and life-degenerating diseases. The judiciary have always taken a deferential stance and argued that any changes to the law must be introduced by parliament.

Most recently in June 2018, Noel Conway argued that the current ban on assisted suicide under the 1961 Suicide Act (amended 2009) was incompatible with his human rights. However, the Court of Appeal reasserted that the current law is fair and balances the interests of wider society with the interests of individuals with terminal illnesses. 

Supreme Court Ruling 2018

In July 2018, the UK Supreme Court ruled that doctors would be able to withdraw food and fluids from brain-damaged patients with persistent vegetative state (PVS) and minimally conscious state (MCS) without needing to apply to the Court of Protection. These patients have food and fluids administered by tube (known as clinically assisted nutrition and hydration, or CANH), but can breathe without the assistance of a ventilator.

Prior to the Supreme Court’s ruling, such patients had the ability to have their cases heard by the Court of Protection, which offered independent scrutiny of applications. As Dr Peter Saunders, director of Care not Killing argues, this was because the court ‘recognised the emotional and financial pressure that families and clinicians can fall under.'

This judgement sets a dangerous precedent by removing safeguards for vulnerable patients, who cannot advocate for themselves. People with PVD and MCS might live in such a state for many years and some may regain a degree of awareness. By withdrawing CANH, these patients will very likely be starved or dehydrated to death under the auspices of their ‘best interests’. Such a decision may be influenced by external factors such as the cost implications of continuing CANH or an ideological vested interest in withdrawing treatment.

The judgement also found that there is no essential difference between withdrawing food and fluids and switching off a ventilator—both are considered forms of medical treatment, as opposed to basic good care. According to Dr Saunders, there is a ‘clear difference between turning off a ventilator on a brain-dead patient and removing CANH from a brain-damaged patient. PVS and MCS differ from conditions with a 'downward trajectory' because they are not progressive and do not in themselves lead inevitably to death.' There are also ‘demonstrable and significant uncertainties about diagnosis and prognosis in both PVS and MCS. These have increased rather than decreased in the last 20 years and this is why continued court oversight is necessary.'

Legislative Attempts to Liberalise the Law on Assisted Suicide

Since 2003, there have been over ten attempts to introduce assisted suicide across the parliaments of the United Kingdom. All of them have been rejected.

Coroners and Justice Bill (2009) 

During the passage of what became The Coroners and Justice Act 2009 Lord Falconer proposed changing the law so that people would not be prosecuted for helping relatives travel to overseas suicide facilities to die. The proposal was defeated.

Assisted Dying for the Terminally Ill Bill (2003-2006)

Lord Joffe introduced Bills in the House of Lords unsuccessfully in 2003, 2004 and 2005. The Bills were similar in aim, seeking to legalise assisted suicide. The first Bill ran out of parliamentary time. The second Bill, entitled the “Assisted Dying for the Terminally Ill Bill”’ and would have legalized assisted suicide for people who could not kill themselves. According to some commentators this would have come to the “very brink of euthanasia”.  Major concerns about public safety issues led to the failure of the Bill. Lord Joffe introduced his third Bill with the same title late in 2005. This was defeated by a majority of 148-100 at Second Reading in May 2006.

The Lords Select Committee on Medical Ethics (1992-1994)

In 1992 a Select Committee of the House of Lords was established to consider the ethical, legal and clinical implications of life-shortening actions. The report in 1994 rejected any proposal to: “cross the line which prohibits any intentional killing, a line which we think it essential to preserve.” The Report also rejected any change in the law on assisted suicide. The Government accepted this recommendation..

End of Life Assistance Bill (Scotland) (2010-2012) 

Independent MSP Margo MacDonald tabled Bills in 2010 and 2011 that would have legalized assisted suicide. Under the second Bill people born with disabilities who “lose the will to live” would have been eligible to end their lives. The first Bill was defeated by the Scottish Parliament and the second Bill was rejected at public consultation phase.

Lord Falconer Bill (2014)

Having suffered a heavy defeat in the previous parliamentary session, Lord Falconer continued his efforts to change the law, establishing a so-called independent Commission on Assisted Dying in November 2010.  However, the independence of the Commission was called into question. Nine of the twelve members appointed by Lord Falconer were known to favour a change in the law prior to their appointment; the remaining Commissioners were not known to oppose assisted suicide. Supported by Dignity in Dying, the leading UK pressure group campaigning for assisted suicide, and funded by the late Sir Terry Pratchett (a known advocate of assisted suicide), more than forty organisations chose not to give evidence to the Commission including the British Medical Association and a number of Christian organisations.

Following the publication of the Commission report, in May 2013, Lord Falconer introduced a Bill in the House of Lords seeking to legalise assisted suicide in England and Wales.[vi]  Owing to the constraints of the parliamentary timetable, there was no time for a Second Reading (debate on the general principles of the Bill) in the House of Lords before the end of the parliamentary session.

Proponents of assisted suicide ensured that, in the space of four months from December 2013 – March 2014, the House of Lords debated assisted suicide on three separate occasions. None of the debates resulted in a vote (nor could they have done).

Lord Falconer introduced a second Bill – the ‘Assisted Dying Bill’ – to the House of Lords in June 2014 when it received its First Reading.  As before, the Bill sought to make it legal for a terminally ill, mentally competent adult with less than six months to live to be helped to kill themselves in England and Wales.  The Bill was given a Second Reading (at which point there is a general debate on the principles of the Bill) on 18 July 2014 where it was subject to ten hours of rigorous debate with roughly equal numbers of Peers speaking for and against. As is commonplace with Private Members’ Bills, the Assisted Dying Bill automatically passed its Second Reading with no need for a vote.  The Committee Stage, involving line-by-line examination of the Bill took place on 7 November 2014 and 16 January 2015.

At Committee Stage more than 175 amendments were tabled to the Bill – largely from Peers opposed to assisted suicide. Such an unusually large number of amendments meant that it was unlikely – given the constraints of the parliamentary timetable – that the Bill would progress any further.

Of note, on the first day of Committee, 7 November, an amendment was made to the Bill which called for judges, rather than doctors, to be the arbiters of whether someone should be allowed access to assisted suicide.  Although votes on amendments can and do take place at Committee Stage, it is the convention in the House of Lords that Committee Stage should be exploratory, with voting more properly belonging to Report Stage.  Proponents of assisted suicide went against this convention in pushing through the amendment. On the second day of Committee on 16 January, two amendments which would have tightened the scope of the Bill were rejected.

Although euthanasia and assisted suicide are not devolved matters, in December 2014 the Welsh Assembly debated a motion in support of the principles of Lord Falconer’s Assisted Dying Bill. Happily, AMs voted by 21 votes to 12 against the motion and therefore even the principles of the Bill (there were also 20 abstentions). That one of the jurisdictions to which Lord Falconer’s Bill would have applied rejected the mere principles of the Bill was very encouraging.

Following the dissolution of Parliament on 30 March, the Lord Falconer’s Bill fell. 

Full text of the Bill can be read here.

Rob Marris Assisted Dying Bill (2015)

The MP Rob Marris based this Bill on the Falconer Bill. It was defeated in its Second Reading in 2015 following a lengthy debate. The Bill was defeated by 330 to 118. Full text of the Bill can be read here.