The legalisation of assisted suicide

The Isle of Man is on course to legalise assisted dying for terminally ill and mentally competent people by 2025, after its Parliament (the House of Keys) voted by a 70% majority to pass an Assisted Dying Bill on 31 October 2023.

A debate and vote on next steps took place on 7 November 2023 in the self-governing British dependency and the Bill will now be considered by a committee who will report back by the end of February 2024.

If the process continues as anticipated, the Isle of Man will be the first place in the British Isles to legalise assisted death.

Support for assisted dying / assisted suicide?

On 16 May 2018 the States of Deliberation of the Island of Guernsey considered whether they agreed in principle to permit assisted dying in Guernsey subject to the development of appropriate and effective capacity legislation and any other legislation which may be required.

The ”Assisted Dying Requete“ was lodged with the Greffe (Government) on 26 February 2018 with the required seven signatory Deputies,

After a three-day debate, however, members of the legislature voted against the bill which had been proposed by Guernsey’s chief minister, Deputy Gavin St Pier.

In August 2023, Deputy Lester Queripel in Guernsey controversially told the Health & Social Care Committee that Guernsey’s financial problems provide an ideal opportunity to revisit the issue. He wants a fresh debate on legalising assisted dying – apparently partly to help save money.

Jersey is set to debate assisted dying in 2024 with plans to legalise it by 2025.

In Scotland a Proposed Assisted Dying for Terminally Ill Adults (Scotland) Bill was lodged in September 2022.

United Kingdom and assisted death

Under Section 2 of the Suicide Act 1961, encouraging or assisting a suicide is a crime, carrying a maximum sentence of 14 years in prison. Suicide ceased to be a crime in 1961. The taking of life through the intervention of or with the help of a third party continues to be prohibited. There is corresponding law in Northern Ireland and currently no specific law in Scotland.

There have been a number of challenges in recent years as to whether the prohibition on assisted suicide is compatible with human rights laws and in particular the right to respect for private and family life under Article 8 of the European Convention of Human Rights.

The case of Diane Pretty in 2002 established that the right to private life relates to the manner in which life is conducted, not the manner in which a person departs from life. It was stated that whilst Article 8 protects the physical, moral and psychological integrity of the individual, including rights over one’s own body, there is nothing to suggest that it confers a right to decide when or how to die.

The case of Debbie Purdy, who campaigned for the “right to die” in 2008/2009, led to the publication of CPS guidance in February 2010 intended to clarify when helping someone to end their life will result in prosecution. The then DPP, Sir Keir Starmer KC, said that debate about mercy killing made it important to draw a line between those who help a loved one to kill themselves and those who have ended someone else’s life. The guidance makes it clear that the case of Purdy did not change the law and that the law on encouraging or assisting suicide can only be changed by Parliament.

In 2014 Lord Falconer introduced an Assisted Dying Bill. The Bill proposed to allow terminally ill, mentally competent adults in England and Wales with less than six months to live, to have an assisted death after being approved by two independent doctors. A High Court judge would review each case.

The Bill failed as there was not enough time for it to be adequately debated before the end of Parliament and the general election.

Revised guidelines for prosecutors in cases of assisted suicide were issued in October 2014 by DPP Alison Saunders. The DPP has discretion on whether to prosecute.

Disability rights campaigners Merv and Nikki Kenward were granted permission to proceed with a judicial review of the changes to the DPP policy in light of their concerns that the wording in the guidance made it less likely that healthcare professionals would be prosecuted for assisting suicide. In January 2017, the Court of Appeal dismissed an attempt to contest the High Court decision to dismiss the judicial review application.

In 2014 the Supreme Court delivered its reasons in the case of Tony Nicklinson who was seeking a declaration that the law on assisted suicide was incompatible with his right to a private life under Article 8 ECHR. The legislative authority of Parliament was referred to in the decision against making a declaration of incompatibility.

Rob Marris MP introduced an Assisted Dying Bill based on Lord Falconer’s earlier attempted legislation. This failed as well on 11 September 2015.

In July 2015, the European Court of Human Rights (ECofHR) handed down its decision in the joined cases of Nicklinson and Paul Lamb on the law of assisted suicide, declaring it inadmissible for the court’s consideration. The ECofHR recognised that the law on assisted dying had been considered by the UK Parliament several times in recent years. It said that the majority of the Supreme Court had dealt with the substance of Nicklinson’s claim, taking into account Parliament’s views. As a result, the ECofHR declared that case inadmissible, which meant that it would not consider the merits of the case.

Paul Lamb’s case was also declared inadmissible, on the basis that he had not presented his case i.e. that there should be a judicial procedure to authorise voluntary euthanasia to the UK Supreme Court. He had, therefore, not exhausted all available domestic remedies and the ECofHR would not rule on a matter which the UK courts had not had a chance to consider.

In January 2018 in the case of Noel Douglas Conway, the Court of Appeal gave permission to appeal against the decision of the Divisional Court which had refused permission for Mr Conway to judicially review the criminalisation of physician assisted suicide under the Suicide Act 1961. The Divisional Court had held that Parliament had recently examined the issue following the Supreme Court decision in the 2014 Nicklinson case, and two out of three judges concluded that it would be “institutionally inappropriate” for a court to declare that s.2(1) of the Suicide Act was incompatible with the right to privacy and autonomy under Article 8 of the ECHR. Mr Conway’s appeal was rejected in June 2018.

In January 2020, the Court of Appeal refused permission for a judicial review on assisted dying, brought by a terminally ill man with motor neurone disease. Phil Newby, a 49-year-old father-of-two from Rutland, asked the courts to undertake a “detailed examination of the evidence” to determine whether the blanket ban on assisted dying is compatible with his human rights. Phil and his legal team had appealed against a decision from the High Court in November 2019 which denied his case permission to proceed, but were unsuccessful.

The Assisted Dying Bill, a Private Members’ bill, was formally introduced by Baroness Meacher in May 2021. It intended to legalise assisted dying in the UK as a choice for terminally ill, mentally competent adults in their final months of life. Despite strong cross party support, it fell in 2022.

The House of Commons’ Health and Social Care Committee launched an inquiry into assisted dying in 2023 and as well as receiving written evidence, has heard oral evidence in sessions throughout May-July 2023. The inquiry seeks to examine different perspectives in the debate on assisted dying/assisted suicide and MPs will make their recommendations to government on next steps in a report following the inquiry.

Summary

Medical professionals have debated physician-assisted suicide for decades. The evaluation of capacity in this patient group is often considered to be a difficult task because of the strong views about the decision itself. We can anticipate stringent safeguards to be implemented if physician-assisted dying is legalised in the UK, including gauging the quality and value of life.

Assisted suicide prosecutions are rare.

Throughout Europe there are a number of countries which allow assisted dying either under strict circumstances or in specific scenarios or in very broad terms (including voluntary euthanasia and physician assisted suicide.

Switzerland has permitted assisted suicide since 1942. Thirty three British people had an assisted death at Dignitas in 2022, a 44% increase from 2021. This is the highest number since the pandemic began, and the overall fifth highest number of annual British deaths at Dignitas since the first British person was assisted to die there in 2002.

Comment

If the Isle of Man decides to progress “right to die“ legislation, this may lead to a constitutional clash with Britain as a result of its position as a Crown dependency and open up the debate further in the United Kingdom about assisted dying. There are concerns voiced in many quarters about the impact of assisted dying on disabled people and there will need to be appropriate safeguards in place to protect the vulnerable in society if “right to die” legislation progresses.