Will a new law mark the beginning of the end of suffering for terminally ill adults? 

The issue of assisted dying is increasingly a matter of concern in the UK, both for terminally ill individuals
and their solicitors who must advise them on their rights. With court rulings suggesting that only parliament can change the law on assisted dying, a Bill, aimed at alleviating the suffering of people who want to end their life legally and with dignity, has been tabled in the House of Lords.

The Assisted Dying Bill, proposed by Lord Falconer QC on 5 June 2014, has significant cross-party support, as well as the backing of the majority of the public. It seeks to legalise the choice of assisted dying for terminally ill adults with less than six months to live.

“The public are currently ahead of politicians on this issue,” says Falconer. “The current law which forces some terminally ill people to travel abroad to die or attempt suicide behind closed doors is not fit for purpose, but only parliament can change the law to allow terminally ill people the choice to end their own suffering within a safeguarded framework.

“This new law will safeguard patients, protect family members and ensure that the medical profession can be involved. Furthermore, strictly limited to terminally ill, mentally competent adults, the Bill will not result in more people dying, but in fewer people suffering.”

Judicial opinion

The Supreme Court is set to deliver a landmark ruling in two high-profile cases later this year. ‘Martin’ and Nicklinson & Lamb were heard together by a panel of nine Supreme Court justices in the court’s final sitting of 2013.

In ‘Martin’ it was argued that the Director of Public Prosecutions (DPP) policy in cases of assisted suicide was an unjustified interference with article 8 of the European Convention on Human Rights because the consequences for those whose assistance the petitioner sought were uncertain.

Furthermore, the policy disproportionately interfered with the petitioner’s article 8 right because it discourages that assistance.

The first argument was successful in the Court of Appeal but was appealed by the DPP to the Supreme Court. The second argument was unsuccessful at the Court of Appeal and was cross-appealed by ‘Martin’. Master of the Rolls Lord Dyson and Lord Justice Elias agree that it was unclear whether doctors and others would be brought before the courts for assisting a suicide and said it should be “spelt out unambiguously” by the DPP.

The result was hailed as a victory for the 48-year-old stroke victim, known as ‘Martin’, as it was seen to force the DPP to clarify under what circumstances prosecutions would be brought.

The DPP guidance made clear that friends or family members were unlikely to be prosecuted for assisting a loved one’s suicide.

The policy, brought in following the case of Debbie Purdy, a multiple sclerosis sufferer, made a distinction between compassionate acts to assist someone ending their own life, which, subject to other factors, are unlikely to be prosecuted, and the malicious encouragement or assistance of suicide which would be prosecuted.

While the DPP’s guidance gave individuals much clearer indications of how they are likely to be treated under the law, it did not amend the law itself, or provide immunity from prosecution.

Assisted suicide is still a crime with a maximum penalty of 14 years’ imprisonment, and cases of ‘mercy killing’ will still be prosecuted as murder or manslaughter. However, that may all be about to change if Falconer’s Bill passes second reading in the Lords.

Sarah Wootton, chief executive of campaigning organisation Dignity in Dying, said: “Alongside ongoing improvements in access to end-of-life care, we are in no doubt that this Bill marks the beginning of the end for unnecessary suffering at the end of life and are confident that the Bill will win at second reading.

“Without a change in the law, hundreds of terminally ill patients will continue to take decisions without adequate safeguards, whether by travelling to Dignitas to die, ending their lives themselves, or being illegally helped to die by doctors.”

International approach

Several European jurisdictions have assisted dying laws including the Netherlands, Belgium, Luxembourg and Switzerland. Yet, Falconer’s Bill is most similar to the Death with Dignity Act in the US state of Oregon. The law has worked for 16 years with no evidence of abuse and no calls to extend the law beyond terminally ill, mentally competent adults.

Since 2002, the numbers of people choosing an assisted death in Oregon has remained low and never increased above 0.2 per cent of all recorded deaths.

As in the UK, there were some concerns over the implementing such legislation in the state. The Oregon Hospice Association initially opposed it, but since evidence has shown that none of its concerns had been realised, it has lifted its opposition.

Wotton said: “With other jurisdictions, most notably the US states of Oregon and Washington, showing that assisted dying can be safely legalised and safeguarded, parliamentarians have a responsibility to do what is right for the people.

“A bad law applied with common sense and kindness is no match for a compassionate and sensible law applied with rigour and force. Within upfront safeguards, dying people should have choice and control over the manner of their death.”

Parliamentary backing

The government has said it will allow MPs a free vote on Falconer’s Bill if it reaches the Commons. It has already received cross-party support in the Lords with Liberal Democrat peer Lord Avebury saying: “This Bill can save a small but significant group of terminally ill patients from an agonising death. There is no way it could be misused, or that its rigorous safeguards would allow its limited purposes to be widened”.

Cross-bench peer, Baroness Murphy said: “As a doctor, the relief of suffering at the end of life and respecting dying patients’ individual sustained wishes about their own care take precedence. I welcome this Bill as an opportunity to clarify a difficult and complex area of current law and allow patients who are terminally ill to make real choices about life’s end.”

Meanwhile, Conservative peer Lord Dobbs said: “The right to life that we all enjoy should also provide the right to a dignified death wherever possible. So long as appropriate and rigorous safeguards are in place, I want to see that right to a dignified death established in law.”

However, leading barrister Lord Carlile has previously said the Bill would allow “people to kill other people with impunity”. He said: “I regard this bill as a very dangerous and unsatisfactory piece of legislation,” and believes the guidelines published in 2010 by the DPP remain “extraordinarily clear”.

Public support

Speaking at Dignity in Dying’s AGM last week, patron Prue Leith issued a rallying call to the charity’s supporters: “The time for a change in the law is getting riper by the day.

“No democratic government can hold out against the will of the people. One day, we will get a Bill through those thick heads in Westminster that 80 per cent of the public support.”

A 2013 YouGov survey found that 76 per cent of the public supported the specific proposals of the Bill, with only 12 per cent opposed. The 2010 British Social Attitudes survey found 82 per cent of the public agreed that a doctor should be allowed to end the life of a patient with a painful incurable disease at a patient’s request.

A significant number of healthcare professionals also believe change is necessary. According to a survey of doctors’ attitudes, around a third of physicians were in favour of changes in the law. Another study found that 39 per cent of GPs were in favour of change.

A survey from 2011 by Doctors.Net found only a third of physicians wouldn’t want the choice of assisted dying for themselves. And the majority of nurses support the proposed legalisation too, with polls in 2003 and 2009 showing two-thirds in favour.

People of faith were also supportive of the Bill. Research in 2013 showed that 78 per cent of those who attended a place of worship once a month agreed with assisted dying as well as 59 per cent of those who attended several times a month.

While various academic works show that the majority of both non-religious people (92 per cent) and people with religious beliefs (71 per cent) support assisted dying on the request of a patient with a painful incurable disease.

The Bill will be debated on 18 July. Private client lawyers in particular should watch this space.

This article was first published in the Solicitors Journal on 9 June 2014 and is reproduced with kind permission.