Eric Liddell Centre, 15 Morningside Road, Edinburgh EH10 4DP, Tel: 0131 447 6394 or 0774 298 4459
Advocates of assisted suicide have suggested that assisted suicide would enable persons who become terminally ill and find themselves in an unbearable situation, to not have to suffer a slow, drawn-out death.
In response to this the SCHB notes that:
Suffering can be adequately alleviated in all but the most extreme cases with up to 95% of patients having their pain and/or symptoms effectively relieved when treated by healthcare professionals with the relevant expertise [1]. Experience shows that once people are comfortable and their fears concerning suffering have been addressed, they often change their minds about wanting to end their lives. Similarly, patients with an illness such as motor neurone disease (a serious progressive neurological disorder) are often afraid of choking to death. But studies from the most experienced hospice units have demonstrated that, with appropriate palliative care, this virtually never happens. Thus, few patients request assisted suicide when their physical, emotional and spiritual needs are properly catered for.
Even in the extremely rare cases where suffering does not respond to treatment there is the possibility of using artificial transient sedation to keep them asleep in order to address the intolerable physical and/or mental distress. Thus, there is absolutely no reason for anyone to die in pain.
Advocates of assisted suicide have suggested that individuals should be able to determine their own dignity and quality of life. For example, it has been proposed that persons who fear that they will lose their dignity during the final stages of a terminal illness should be able to 'die with dignity' before these stages occur.
In response to this the SCHB notes that:
It is wrong to suggest that any person can ever lose his or her human dignity. Indeed, even though human dignity is a belief and not a scientific concept, it is something that everyone should always accept is found in everyone to an equal extent. This is in accordance with the United Nations’ Universal Declaration of Human Rights.
Furthermore, persons who consider that their lives are no longer worth living or believe that they have lost their ‘dignity’ are discriminating against themselves and, indirectly, indicating that the lives of persons in the same or in worse medical situations than themselves are also not worth living and should be ended.
With assisted suicide, as opposed to suicide, another person must also believe that it would be preferable for a person wishing to die not to continue living. In other words, assisted suicide, is a reflection of the unacceptable belief by a person that another person has lost his or her dignity and that his or her life is not worth living and should be ended.
Once quality of life becomes the yardstick by which the value of human life is judged, the protection offered to the most vulnerable members of society is weakened.
Advocates of assisted suicide have suggested that a person’s fear of disability and dependency should enable him or her to die while he or she is still autonomous and that assisted suicide would enable self-determination to exist. In other words, they propose that individuals have the right to make decisions concerning their own life and death situations in accordance with their own values and beliefs. These should not be imposed by a court, a doctor or a family member. It is a question of freedom and equality in the face of death.
Thus, the advocates of assisted suicide have suggested that nobody has the right to impose on the terminally-ill and the dying the obligation to live out their lives where they themselves have persistently expressed the wish to die.
In response to this the SCHB notes that:
The development of complete and total autonomy for a person does not enable human dignity to exist. Indeed, the very concept of human dignity is dependent on persons having a relationship with one another. Human society should never encourage anyone to believe that a person can lose his or her human dignity.
Advocates of assisted suicide have suggested that, at present, it appears to be extensively practised in secret and that it is this reality that carries the greatest potential for abuse. They indicate that the pressures that can influence end-of-life decisions will be more pernicious if exercised in the dark and that the gap between law and practice must be reconciled if respect for the rule of law is to be maintained.
In response to this the SCHB notes that:
Having the option of assisted suicide is dangerous since it may be considered by many elderly and other vulnerable people who feel that they are a burden to family, carers and society or that their care may be eating up some of the inheritance which they wanted to pass on. A risk then exists that these vulnerable people may believe that a right to die is actually a duty to die!
Vulnerable people need to hear that they are valued and loved by the community. They need to know that society is committed first and foremost to their well-being, even if this does involve expenditure of time and money. The manner in which the weakest and most vulnerable people are treated reflects the kind of society we are.
Advocates of assisted suicide have suggested that curing disease and bringing about death are not mutually exclusive roles, the intention in both cases being the relief of suffering. It is further argued that the primary role of the physician is to care for his or her patient, which must therefore entail respecting their autonomous wish to die.
In response to this the SCHB notes that:
Crossing the boundary between acknowledging that death is inevitable and taking active steps to bring about death changes fundamentally the role of the physician, changes the doctor-patient relationship and changes the role of medicine in society. The physician’s role has always been to cure and care for his or her patients, not help to kill them.
Some doctors may also become hardened to death and to causing death and start considering their patients as disposable, particularly when they are old, terminally ill, or disabled. A few may actually feel empower in being able to provoke death. Reciprocally these vulnerable groups of people may start to doubt the intentions of their doctors.
The attempted suicide of an individual, such as a young person, is never seen as something to be encouraged. Instead, a lot of concern is raised as to the individual’s state of mind and the fact that he or she may need psychological assistance or counselling. In other words, it would be completely unethical to help someone commit suicide in these circumstances. In the light of this, it is difficult to consider how any form of assisted suicide can be considered.
Conversely, if assisted suicide was ever decriminalised, there would then be the risk that the suicide of individuals, such as healthy young persons, would also become considered as acceptable by society.
Advocates of assisted suicide have suggested that legalising assisted suicide could give physicians some protection from the law.
In response to this, the SCHB notes that:</p>
The legalisation of assisted suicide may impose upon medical professionals obligations which may be unworkable with the possibility of penalties (or prosecution) applying if these are not respected.
Suicide: Active intervention by which a person ends his or her own life.
Passive Suicide: Suicide without an active intervention, whereby a person makes a conscious and contemporaneous decision not to accept or to withdraw from life-sustaining treatment with the aim of hastening his or her own death. Passive suicide recognises the right of a patient not to accept a medical intervention even if it may save his or her life. This right is recognised in most countries [2].
Assisted Suicide: The act whereby a person aids, abets, counsels or procures a suicide or an attempted suicide of another individual.
Physician Assisted Suicide: The act whereby a physician prescribes a lethal medication to a person, but the person administers the dose himself or herself.
Assisted Dying: Term used to cover both Assisted Suicide and Euthanasia.
Assisted suicide is generally considered as a procedure that enables a certain amount of certainty to exist that a person consents to terminate his or her life. This is because it is the person himself or herself who undertakes the ‘killing’ action. For example, if a physician injects poison, with the patient's consent, in order to hasten his or her death, this is active voluntary euthanasia. If, on the other hand, the physician places poison by the patient's side, and the patient takes it this will be assisted suicide. The individual assisting the person wishing to take his or her life will only then be considered as an ‘assistant’ in the intervention and not the principal actor. Through assisted suicide one seeks to avoid any risk of non-voluntary or involuntary euthanasia.
To be developed.
Section 1 of the Suicide Act 1961 abrogated the rule of law which had previously made it a crime to commit (or to attempt to commit) suicide. But the fact that it provided in section 2(1) that a person cannot aid or abet another person to commit suicide points clearly to the conclusion that decriminalisation, not the creation of a right, was what was intended.
In the past, the main effect of the criminalisation of suicide was to penalise those who attempted to take their own lives. It also cast an unwarranted stigma on innocent members of the suicide's family and led to the distasteful result that patients recovering in hospital from a failed suicide attempt were prosecuted, in effect, for their lack of success [3].
Since suicide ceased to be a crime in 1961, the question whether assisted suicide should also be decriminalised has been reviewed on more than one occasion. The Criminal Law Revision Committee in its 14th Report (1980, Cmnd 7844) indicated some divergence of opinion among its membership, and recognised a distinction between assisting a person who had formed a settled intention to kill himself or herself and the more heinous case where one person persuaded another to commit suicide, but a majority was of the clear opinion that aiding and abetting suicide should remain an offence (pp 60-61, para 135) [4].
In 1993, Hoffmann LJ indicated in the Court of Appeal (Airedale NHS Trust v Bland [1993] AC at 831) that "the sanctity of life entails its inviolability by an outsider. Subject to exceptions like self-defence, human life is inviolate even if the person in question has consented to its violation. That is why, although suicide is not a crime, assisting someone to commit suicide is."
Following this decision by the Court of Appeal, the House of Lords Select Committee Report on Medical Ethics (HL 21-1, 31 January 1994 - p 11, para 26) drew a distinction between assisted suicide and physician-assisted suicide but its conclusion was unambiguous (p 54, para 262): "As far as assisted suicide is concerned, we see no reason to recommend any change in the law. We identify no circumstances in which assisted suicide should be permitted, nor do we see any reason to distinguish between the act of a doctor or of any other person in this connection."
The House of Lords Select Committee also recognised the undesirability of anything which could appear to encourage suicide (HL 21-I, 31 January 1994 - p 49, para 239): "We are also concerned that vulnerable people - the elderly, lonely, sick or distressed - would feel pressure, whether real or imagined, to request early death. We accept that, for the most part, requests resulting from such pressure or from remediable depressive illness would be identified as such by doctors and managed appropriately. Nevertheless we believe that the message which society sends to vulnerable and disadvantaged people should not, however obliquely, encourage them to seek death, but should assure them of our care and support in life." [5]
The government in its response (May 1994, Cm 2553) accepted this recommendation: "We agree with this recommendation. As the Government stated in its evidence to the Committee, the decriminalisation of attempted suicide in 1961 was accompanied by an unequivocal restatement of the prohibition of acts calculated to end the life of another person. The Government can see no basis for permitting assisted suicide. Such a change would be open to abuse and put the lives of the weak and vulnerable at risk." [6]
Following a proposal by Lord Joffe to introduce a Patient (Assisted Dying) Bill, in February 2003, a House of Lords Select Committee prepared a report entitled Assisted Dying for the Terminally Ill Bill in April 2005. This report indicated that if an assisted dying bill is considered, it should distinguish clearly between assisted suicide and voluntary euthanasia. This led Lord Joffe to re-introduced a new version of his bill entitled Assisted Dying for the Terminally Ill Bill into the House of Lords on the 9th of November 2005 in a form which would legalise assisted suicide but not euthanasia.
Assisted suicide is covered in England and Wales by the Suicide Act 1961 which states that:
1. The rule of law whereby it is a crime for a person to commit suicide is hereby abrogated.
2. (1) A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years.
(2) If on the trial of an indictment for murder or manslaughter it is proved that the accused aided, abetted, counselled or procured the suicide of the person in question, the jury may find him guilty of that offence.
A proposed physician assisted suicide bill was lodged on 25 October 2005 in the Scottish Parliament by Jeremy Purvis MSP. However, this proposal attracted only five out of the required 18 parliamentary supporters within the specified time of one month after the draft bill was submitted. This means that the proposed bill will not continue through the legislative process.
Euthanasia and assisted suicide are devolved matters for the Scottish Parliament under the Scotland Act 1998, Schedule 5 (Reserved Matters), Part II (Specific Reservations), Head J (Health and Medicines).
In a response before the Scottish Parliament on the 11th of November 2004, the Deputy Minister for Health and Community Care indicated that "Under Scots law, an act of euthanasia by a third party, including physician-assisted suicide, is regarded as the deliberate killing of another and would be dealt with under the criminal law relating to homicide. The consent of the victim would not be a defence and no degree of compassion on the part of the person who carried out the act would amount to a legal justification. There might be cases in which the circumstances of the offence would make a charge of culpable homicide more appropriate than one of murder, and a court would take all the circumstances of the case into account before sentence was pronounced. However, if the accused was convicted of murder, a sentence of imprisonment would be mandatory. [7]
In Scotland, assisted suicide is not specifically defined in legislation. Assisting suicide may constitute the “art and part” of murder or culpable homicide [8]. Suicide is not a crime in Scots law and it is therefore not a criminal offence to attempt suicide. Encouraging or assisting another to take his own life is another matter, as the sympathy which the law has for the suicide does not necessarily extend to those who facilitate suicide. There is no Scottish authority on this issue.
European Convention on Human Rights
Two articles of the European Convention on Human Rights (ECHR) protect the right to life, namely:
Article 2.1
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.
Article 8
1. Everyone has the right to respect for his private and family life…..
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Council of Europe Parliamentary Assembly Recommendation 1418 (1999)
The latest provisions on the subject are included in Article 9.c. of the Council of Europe Parliamentary Assembly Recommendation 1418 (1999) which states that:
The Assembly therefore recommends that the Committee of Ministers encourage the member states of the Council of Europe to respect and protect the dignity of terminally ill or dying persons in all respects by upholding the prohibition against intentionally taking the life of terminally ill or dying persons, while:
i. recognising that the right to life, especially with regards to a terminally ill or dying person, is guaranteed by member states, in accordance with Article 2 of the European Convention on Human Rights which states that “no one shall be deprived of his life intentionally”;
ii. recognising that a terminally ill or dying person’s wish to die never constitutes any legal claim to die at the hand of another person;
iii. recognising that a terminally ill or dying person’s wish to die cannot of itself constitute a legal justification to carry out actions intended to bring about death.
Osman v United Kingdom:
In the case of Osman v United Kingdom [9] the European Court of Human Rights stated that:
"The Court notes that the first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. It is common ground that the State’s obligation in this respect extends beyond its primary duty to secure the right to life…."
Thus, Article 2, as set out above, contains a negative restraint on the State but also requires the State to take active steps for the protection of life.
Pretty v United Kingdom:
In Pretty v United Kingdom [10], the European Court of Human Rights indicated that a so-called ‘mercy killing’ was legitimately prohibited by the State under Article 2 of the ECHR:
"The consistent emphasis in all the cases before the Court has been the obligation of the State to protect life. The Court is not persuaded that the ‘right to life’ guaranteed in Article 2 can be interpreted as involving a negative aspect … it is unconcerned with issues to do with the quality of life or what a person chooses to do with his or her life … nor can it create a right to self-determination in the sense of conferring on an individual the entitlement to choose death rather than life."
"The Court accordingly finds that no right to die, whether at the hands of a third person or with the assistance of a public authority, can be derived from Article 2 of the Convention."
Furthermore, the European Court of Human Rights did not consider that the United Kingdom’s blanket ban on assisted suicide is disproportionate in the context of Article 8:
"It does not appear to be arbitrary to the Court for the law to reflect the importance of the right to life, by prohibiting assisted suicide."
In a document covering euthanasia and assisted suicide, prepared by the Council of Europe and published on the 20th of January 2003, containing the replies to a questionnaire from 34 countries of the Council of Europe and the USA, only three countries (The Netherlands, Estonia and Switzerland) indicated that their legislation would not regard such an undertaking as an offence provided certain conditions were met [11].
In the Netherlands, the ‘Termination of Life on Request and Assisted Suicide (Review Procedures) Act’ came into effect on the 1st of April 2002. The Act incorporates an amendment to Article 293 of the Criminal Code to the effect that although any person who terminates another person’s life at that person’s express and earnest request remains liable to a term of imprisonment or a fine, such an act shall not be an offence if it is committed by a physician who notifies the municipal pathologist of this act in accordance with the relevant legislation and fulfils the stipulated due care criteria, by which the attending physician must:
- be satisfied that the patient has made a voluntary and carefully considered request;
- be satisfied that the patient's suffering is unbearable, and that there is no prospect of improvement (note: it is not a condition that the patient is terminally ill or that the suffering is physical);
- have informed the patient about his or her situation and his or her prospects;
- have come to the conclusion, together with the patient, that there is no reasonable alternative in the light of the patient’s situation;
- have consulted at least one other, independent physician, who must have seen the patient and given a written opinion on the due care criteria referred to in the four above indents; and
- have terminated the patient’s life or provided assistance with suicide with due medical care and attention.
Similarly, any person who intentionally incites another to commit suicide, if suicide follows, is normally punishable under Article 294 the Criminal Code by a term of imprisonment or fine, but commits no offence if the above due care criteria are fulfilled.
The new legislation also includes regulations regarding termination of life on request and assisted suicide involving minors. Children of 16 and 17 can, in principle, make their own decisions. Their parents must, however, be involved in the decision-making process regarding the ending of their life. For children aged 12 to 16, the approval of parents or guardian is required.
Finally, the legislation offers an explicit recognition of the validity of a written declaration of will regarding euthanasia. The presence of a written declaration of will means that the physician can regard such a declaration as being in accordance with the patient's will. The declaration has the same status as a concrete request for euthanasia. Both oral and written requests allow the physician legitimately to accede to the request. However, he or she is not obliged to do so.
In all cases, the physician must report his or her act to the municipal pathologist. The report is then examined by a regional review committee to determine whether it was performed with due care. The judgement of the review committee is then sent to the Public Prosecution Service, which uses it as a major factor in deciding whether or not to institute proceedings against the physician in question.
If the committee is of the opinion that the physician has practised due care, the case is closed. If not, the case is brought to the attention of the Public Prosecutor who has the power to launch his own investigation if there is a suspicion that a criminal act may have been committed.
Approximately 16 million people live in The Netherlands, of who around 140,000 die every year. Every year, some 9,700 requests for euthanasia are made. About 3,800 of these actually receive euthanasia, of which some 300 are assisted suicides. Euthanasia therefore accounts for around 2.5% and assisted suicide 0.2% of all deaths in The Netherlands. In addition to these, there are about 1,000 deaths a year (0.7% of all deaths) where physicians end a patient's life without an explicit request [13].
Swiss law is a special case in Europe. Article 115 of the Criminal Code specifies that what makes assisted suicide punishable is the existence of a selfish motive. It should be noted, however, that the drafting of Article 115 was not motivated by medical considerations. Originally, in the 19th century, it was aimed at exonerating from punishment someone who lent a weapon to a friend wishing to commit suicide because of, for example, an unhappy love affair. But Article 115 is now used for assisted suicide, which was not at all the legislator’s intention. Thus, assistance to suicide goes unpunished, whilst doctors are not allowed to carry out euthanasia and may be sanctioned by their colleagues. According to the Academy which serves as a tribunal for the Swiss medical profession "assistance to suicide does not form part of medical activity" but it has decided to reconsider this rule.
In Oregon in the United States, assisted suicide has been possible since the 27th of October 1997 with the Oregon 'Death with Dignity Act (1997)'. This allows for patients who are residents of that state to request medical assistance in order to obtain drugs so that they can commit suicide when there is a diagnosis of terminal illness and a prognosis of death within six months. Two oral requests separated by 14 days must be made, and doctors and care staff are not forced to act against their consciences if they do not want to adhere to the measures in the act. Furthermore, Oregon has a similar reporting mechanism as the Netherlands with respect to the monitoring of the deaths.
In Oregon less than 1 in 700 deaths is currently attributable to assisted suicide, whereas in The Netherlands the figure is more than 1 in 40, less than 10% of which are from assisted suicide while over 90% are as a result of voluntary euthanasia [15].
Euthanasia Special report - BBC - http://news.bbc.co.uk/hi/english/static/in_depth/health/2001/euthanasia/default.stm
Euthanasia (Ethics) - BBC - http://www.bbc.co.uk/religion/ethics/euthanasia/
1. Organisations such as the Hospice Movement reveal that suffering can be adequately alleviated in all but the most extreme cases. See also Pain Control - BBC - http://www.bbc.co.uk/religion/ethics/euthanasia/euth_pain_control.shtml; Using Opioids to Control Pain http://www.painlaw.org/opioids.html
2. In the case of Airedale NHS v. Bland, Lord Musttill indicated that “If the patient is capable of making a decision whether to permit treatment and decides not to permit it his choice must be obeyed, even if on any objective view it is contrary to his best interests. A doctor has no right to proceed in the face of objection, even if it is plain to all, including the patient, that adverse consequences and even death will or may ensue ...".
An example of an application of this judgement is given in the case where a woman paralysed from the neck down was given the right to die - BBC - 2002: http://news.bbc.co.uk/1/hi/health/1887281.stm
3. Judgments - The Queen on the Application of Mrs Dianne Pretty (Appellant) v Director of Public Prosecutions (Respondent) and Secretary of State for the Home Department (Interested Party) - House of Lords: http://www.parliament.the-stationery-office.co.uk/pa/ld200102/ldjudgmt/jd011129/pretty-2.htm
4. Judgments - The Queen on the Application of Mrs Dianne Pretty (Appellant) v Director of Public Prosecutions (Respondent) and Secretary of State for the Home Department (Interested Party) - House of Lords: http://www.parliament.the-stationery-office.co.uk/pa/ld200102/ldjudgmt/jd011129/pretty-2.htm
5. Judgments - The Queen on the Application of Mrs Dianne Pretty (Appellant) v Director of Public Prosecutions (Respondent) and Secretary of State for the Home Department (Interested Party) - House of Lords: http://www.parliament.the-stationery-office.co.uk/pa/ld200102/ldjudgmt/jd011129/pretty-2.htm
6. Judgments - The Queen on the Application of Mrs Dianne Pretty (Appellant) v Director of Public Prosecutions (Respondent) and Secretary of State for the Home Department (Interested Party) - House of Lords: http://www.parliament.the-stationery-office.co.uk/pa/ld200102/ldjudgmt/jd011129/pretty-2.htm
7. Scottish Parliament Official Report - 11.11.04: http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-04/sor1111-02.htm#Col11876
8. Replies to the questionnaire for member States relating to euthanasia, Council of Europe, 20 January 2003, http://www.coe.int/T/E/Legal_Affairs/Legal_co-operation/Bioethics/Activities/Euthanasia/Answers%20Euthanasia%20Questionnaire%20E%2015Jan03.asp
9. (1998) 29 EHRR 245
10. Application No 2346/02; 29 April 2002
11. Ministers' Deputies, CM Documents, CM(2003)21 Addendum 2, 12 March 2003, Steering Committee on Bioethics -Report on laws and/or practices of member states with regard to the issues raised by Parliamentary Assembly Recommendation 1418 (1999) on the protection of the human rights and dignity of the terminally ill and the dying. https://wcm.coe.int/rsi/common/renderers/rend_standard.jsp?DocId=29357&SecMode=1&SiteName=cm&Lang=en
12. Parliamentary Assembly, Euthanasia, Doc. 9898, 10 September 2003, Report, Social, Health and Family Affairs Committee
13. House of Lords, Select Committee on Assisted Dying for the Terminally Ill Bill, Assisted Dying for the terminally Ill Bill, Volume I, Report, 2005, paragraph 171; http://www.publications.parliament.uk/pa/ld200405/ldselect/ldasdy/86/8602.htm
14. Parliamentary Assembly, Euthanasia, Doc. 9898, 10 September 2003, Report, Social, Health and Family Affairs Committee
15. House of Lords, Select Committee on Assisted Dying for the Terminally Ill Bill, Assisted Dying for the terminally Ill Bill, Volume I, Report, 2005, paragraph 243; http://www.publications.parliament.uk/pa/ld200405/ldselect/ldasdy/86/8602.htm