Taking this blog's namesake as inspiration, if there was ever 'a lacuna' in the law it is the current ambiguity relating to the law of assisted suicide.
I write this post partly as a brief comment on the law and partly in praise of the Radio 4 programme 'Unreliable Evidence' which this evening covered the topic. If you're interested in this area, click the link and it will take you to the BBC iplayer. The show's panel included Lord Bingham, Sir Ken MacDonald QC (former DPP), Alastair Pitblado (Official Solicitor) and Philip Havers QC, and was a thoughtful and not overly legalistic discussion about issues surrounding assisted suicide and the law's role in end-of-life situations. I thoroughly recommend giving it a listen.
English law's approach to suicide and euthanasia is informed by a historical and (more importantly) religious attitude to what 'life' really means. This, ultimately Catholic, way of looking at the world sees life as a gift from God and highly sacred. As individuals, we cannot simply reject God's gift to us and so to kill ourselves before we were 'called to Heaven' is deeply sinful. This approach is the basis of the 'Sanctity of Life' principle and this still underscores the current approach of English Law.
Against 'the Sanctity of Life' principle is what you might call the 'Quality of Life' principle. This principle embodies the idea that what is more important is not maintaining life for as long as possible, no matter what harm, distress or humiliation this may cause (as per the Sanctity of Life principle) but instead considering the quality of each individual's life. Such an approach provides a justification for ending the life of someone who is in unimaginable pain or faces no prospect of recovery. (Central to a humane application of the Quality of Life principle is the patient's consent).
As the discussion on 'Unreliable Evidence' showed, English law is at somewhere of a cross-roads. Death can be hastened by administering increasing levels of pain-relief (usually via morphine). This technique has been used for many years and Doctors have been insulated from prosecution by the legally dubious 'doctrine of double effect' (it's 'dubious' because it distinguishes between the Doctor's primary and secondary intentions in a way that can be quite disingenuous. But if it allows a dignified death for a terminally ill patient, the criticism is mostly academic rather than pragmatic).
Also, as the cases of Dianne Pretty and Debby Purdy show, whilst assisted suicide remains illegal, the Director of Public Prosecutions usually does not prosecute in cases where a patient's partner travels with them to another country (normally Switzerland) to be helped to die. The law of assisted suicide is a curious beast being unenforced where 'the public interest' would not be served by prosecution.
So, English law strikes - as it often does - an uneasy balance. On the one-hand assisted suicide remains a crime under the Suicide Act 1961 and the legal system still labours under the shadow of the Sanctity of Life principle. Yet on the other-hand, in the real world, assisting suicide is permitted (albeit at arm's length) whilst other techniques to hasten death are frequently used.
Is there a solution? Ken Macdonald, the former DPP, made the point that this ambiguity enables the legal system to be compassionate towards patients on a case-by-case basis. However, the benefits of ambiguity only go so far: surely, it is absurd that terminally ill patients have to travel to a foreign country to die with dignity? Lord Bingham made the point that so-called 'Living Wills' have made torturous decisions easier as a patient can express their wishes before they lose capacity: but these have their limits, not all patients who are suffering unimaginably torrid conditions may have lost their 'capacity' (in a legal sense).
In my view, the solution is to finally get Lord Joffe's 'Assisted Dying for the Terminally Ill Bill' off its feet again and onto the statute book. We need a humane and structured approach to this delicate but important issue. The Bill will not suddenly give license to Doctors to end the lives of 'inconvenient' patients - what it will do is give protection to the loved ones of patients who have a right (though perhaps not a 'human right' under Art 2 ECHR), to die with dignity.
The next episode of Unreliable Evidence discusses the right to protest which should also be a thought-provoking programme.
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