Should Assisted Suicide Be Legal - Essay Example

? Should assisted suicide be legal in this country ? Should assisted suicide be legalisedin this country? Assisted suicide or Euthanasia is a term that describes the act of taking one’s own life in presence of a physician/family member and usually due to the unbearable effects of a chronic disease, that the victim deems not only legitimate but also as an expression of his “right to die”. It is usually practiced by the patient of long time suffering who deems that the best way to put an end to his suffering is to terminate his life. Assisted suicide can be divided into active and passive depending on the role of the physician or the family member. In an actively assisted suicide the person who assists will be held to have actively participated in taking positive acts in ending another’s life, and alternatively, passively assisted suicide would denote a situation where the death has come about to a negative act, or an omission, of the person who assists. (A possible case for passively assisted suicide is Airedale NHS Trust v Bland where a patient had been in a persistent vegetative state for a long time and the life-support machine was disconnected.) However, Sumner1 argued in his book that this distinction between active and passive euthanasia is “both obscure and misleading”. Normally, assisted suicide would occur when a physician administers a life-ending injection to the patient, this is called medically-assisted suicide, and the act of assisted suicide has been embroiled in a myriad of legal, ethical and medical battles because of this very reason. At the heart of the controversy lies the contradiction that if a patient, with his own free consent, decides to end his own life, should the ones who assisted him/her or allowed him/her to commit such an act (for example, the physician), be charged with accounts of aiding/abetting murder or manslaughter? According to Davies2 this term would denote any decision taken in relation to termination of a person’s life. The issue is surrounded in controversies: the academic, legal and medical view on the question differs greatly mainly because this issue, just like the issue of abortion, is a burning one. To conclude whether assisted death may be legalized in the UK, both ends of the spectrums must be analyzed and evaluated. On the one end lies the argument of “sanctity of human life” and on the other end lie the human rights of issue: if a person has a right to live and this right has been granted to him under the law, he also has a right to end his life in whichever way he pleases – the state should not intrude. This imbroglio within this topic tends to divide the views on the basis of religion, political motivation, jurisprudential school of thought and it beckons a strong and varied discussion on whether law should follow morals, or vice versa. The purpose of this paper will be to evaluate the views that support and discourage on both sides of the spectrum. Basically, euthanasia or assisted suicide tends to polarize the views in just two directions: the school that allows this and the school that doesn’t. But practically, the issues that plague this concept are based on law and ethics: One side of law allows it but the other denies it, similarly, one side of ethics favors it but the other discourages it. And this is main reason why this issue still has not been settled, and why euthanasia has neither been expressly forbidden in law nor entirely allowed. The paper will first examine the legal issues that surround this issue. According to Suicide Act 1961 the issue of assisted suicide is punishable with 14 years imprisonment under Section 2(1), however because much debate has sparked in recent times regarding “human rights” “individual choice” “free consent” etc. it is unlikely that this sentence would be given out that readily to those who do assist people to terminate their lives3. Therefore there is a dire need of clarity in the law regarding assisted suicide. The state still maintains a strict control over any cases because it is part of a state policy to ensure that euthanasia or assisted suicide is not practiced. In Netherland4, Belgium and Oregon assisted suicide is legal; Germany too has no law that effectively proscribes assisted suicide and in Switzerland too there exists a clinic called Dignitas which allows terminally ill patients to end their lives without any risk of any criminal offence. In India for example, the Supreme Court issued a “pathbreaking”5 judgment in March 2011 that allowed passive euthanasia in certain circumstances. This was the case of Aruna Ramchandra Shanbaug v Union of India6 which declared “active” euthanasia homicide under the Penal code whereas passive euthanasia was “allowed” as the court treated it like “an omission”. Prior to this judgment, writes Sushila Rao7, that the Indian courts had refused to “read in” the right to terminate one’s life into the general right to life enshrined in Article 21 of the Indian Constitution and held that right to life did not automatically include right to end one’s life. According to a website8, the number of Bills proposed in the UK regarding the legalization of assisted suicide from 1936 – 2003 is 8, but none of them have been made into law. This clearly shows that this issue is indeed a quagmire that wreaks havoc in not just law, but also jurisprudence and medicine. Therefore clarity in the law is the need of the hour: whatever the decision on assisted suicide is on the cards it must streamline the existing law. Second, the case of Debbie Purdy9 is illustrative. Debbie Purdy suffered from a primary progressive multiple sclerosis that was known to be incurable. She wished to seek guidance from the Director of Public Prosecutions on whether her husband would be prosecuted should she opt to end her life later when her condition worsened and would need his assistance. She had asked for guidance on the following issues: Purdy wanted to know whether Section 2(1) of Suicide Act 1961 would apply to her husband if he assisted her in committing suicide and second, what factors would the DPP take into account in deciding under Section 2(4)10 of SA 1961 that whether it is in public interest to allow such an act. The DPP declined her request to offer any more guidelines or information than the usual Code for Crown Prosecutors. Purdy, the appellant, then sought judicial review of this refusal to offer her information. The Court of Appeal had rejected her appeal and so she applied to House of Lords. She formulated her issue in the following two issues: first, she argued that the prohibition in Section 2(1) of the act constituted an interference with her right to her private life enshrined in Article 8(1) of the European Convention on Human Rights (ECHR) and second, in absence of proper guidelines issued by the DPP this interference is not under the law as required in Article 8(2) ECHR. The House of Lords allowed this appeal and held that Article 8 did not exclude this right and hence it was engaged and second, the DPP was required to promulgate guidelines that effectively informed people about when prosecutions will be constituted against people who assist suicide. In response to this judgment the DPP was obliged to formulate such guidelines. The basic crux of the report was that Prosecutors would now judge a case on a person’s motives and see if it is in public interest to allow prosecution. The report outlines 16 factors that the prosecutors will take in deciding whether prosecution will be engaged or not. The analysis point of this whole discussion is that law still has not wholly allowed assisted suicide but has moved towards relative clarity in deciding whether assisted suicide is legal or not. On the face of it, assisted suicide is clearly illegal under the SA. But where public interest factors have been engaged then these factors are instructive. Sara Boseley11, writing in The Guardian, took up the case of Martin who wanted to terminate his life but was uncertain as to any possibility of his lawyers and doctors being prosecuted on account of preparing his application. The Guardian later published a correction saying that it was probable that people who would assist in the application preparation would not face prosecution. What this news story highlights is that perhaps for the common patient suffering from a chronic disease and wishing to exercise his rights, the law still remains unclear and the exercise of this right of life is still difficult for such people. But from an ethical point of view it is likely proceedings will not be constituted against the assistants. Another instructive case in this regard is that of Diane Pretty12. The claimant, a patient of victim neurone disease sought DPP’s undertaking on whether prosecution would be constituted againt his husband should he help her in committing suicide. This is a case where not only the House of Lords13 but also the European Court of Human Rights (ECtHR)14 at Strasbourg rejected the appellant’s, Diane Pretty’s, claim regarding assisted suicide. In the HL her claim was based on the alleged infringements of Article 2, 3, 4, 8, 9 and 14 of the ECHR. Keown15 in his article quotes Lord Bingham and shows why Diane Pretty’s claim was considered untenable and the court held, while reiterating the prohibition on assisted suicide that this prohibition infringed no right and state-controlled intervention in this act was “in accordance with a very broad international consensus”. Similarly, in Pretty v United Kingdom16 the judges at Strasbourg held to similar effect that the prohibition on assisted suicide in UK was in line with its treaty obligations. The cases of Diane Pretty and Debbie Purdy show the contrasting views of judges and also that the changes that have been brought out with the passage of time. At the time of Diane Pretty the judges and the normal academic view was that sanctity of life was a major consideration and even in liberal democracies interventionist steps had to be taken to maintain social order and to pursue legitimate legislative claims. However, by the time the case of Purdy hit the courts, the view had changed significantly: the court was no longer hard pressed to deny this right instead accepted it in varied circumstances and in certain situations where it seemed just and was in patient’s best interests. Also, the UK courts following the Pretty’s case also held that a right of life did engage a right to die as well. Although the rulings of HL and ECtHR in Pretty’s case was similar in effect, they nonetheless were given on different points of view particularly regarding Article 8 of ECHR. Lord Bingham has been quoted in Keown’s article17 as having held about Article 2 that a right to life does not necessarily contain a “corollary” right to death and the ECtHR agreed with this point if view(the counsel for Pretty argued that death was a corollary to life and hence the said Article contained the right to both). However, as an analytical point of view, Morris18 writes that practically a right to end life was a natural antithesis to a right to life but the courts just did not find it easily comprehensible to accept that as it is, because on a reading of Article 2 it just does not contain a right to “end life”. Further he held that Article 2 was mainly about the “sanctity of life” and that could not contain a right that proffered a right to death. Talking about Article 8, the House of Lords had held that personal autonomy regarding the termination of life was not enshrined in this article as it only applied to the “living” and even it did by any chance breach Pretty’s right to terminate her own life, the requirement in Article 8(2) justified it all because it was in public interest. The ECtHR on this point however held the following19: The infringement alleged by Pretty under Art 8 was held to be standing as the right enshrined under this article was held to be engaged, however, this prohibition was rightly justified and it is just that exempted UK from possible breach of its obligation. The court out rightly rejected Lord Bingham’s point of view that Article 8 could not be engaged because it applied to a subject when it was “living” the court expressly said that it applied to termination of one’s life but in this case that was justified under the condition of 8(2). The discussion on Article 8 and the fact that a right to end could possibly exist opens the door for the arguments based on an individual’s autonomy. It is primarily Purdy’s case that reignited the debate on whether individual autonomy must be respected or whether sanctity of life given paramount importance. Baroness Hale noted in Purdy that respect for autonomy must be the prime consideration for a person who wishes to die, however simultaneously the law must protect people who are relatively vulnerable due to pressures and are easily cajoled into thinking that there life hold no use. She said that the prime concern for law should be to devise “factors which tell for and against such a genuine exercise of autonomy free from pressure"20. Therefore, the exercise of autonomy regardless of how vital and important must be balanced with consideration on not the motive behind the attempt to commit an assisted suicide but also the implications it would have on the wider society21. This question on personal autonomy was even left open ended by the judges themselves. Moving on, another obstacle in legalizing this area is that of the sanctity of life theory. Human life, it is argued, is given without the consent of the human being himself, therefore whatever may befall him during his life, he should not be able to decide whether he wants to die or not, because he must treat his life as a gift from God. Sanctity of life views assisted suicide from a moral and ethical viewpoint and renders it entirely unacceptable. The sanctity of life theory has been found in almost all religious and ethical perspectives and anything that ends with death is deemed to be a “bad end” and evil, which is why the proponents of sanctity of life theory argue that this to preserve the sacredness of life and treat it like a gift from God is our duty, and it is in line with the medical duties of doctors to preserve life and delay death. Therefore, not just from an ethical point of view, but also from a medical point of view, the notion of assisted suicide, especially physician-assisted suicide, is entirely against the very rationale behind the medical profession. However, the problem is should people be given the option to die with dignity rather than face excruciating circumstances at the hands of the disease, not to mention the disgrace. Utilitarianism is one school of thought that weighs everything in the scale of pain and pleasure. The objective is greatest good for greatest number of people, and therefore if life becomes too onerous to lead, Bentham said it was better to end it. Therefore, according to Utilitarianism assisted suicide would not a bad idea as long as it maximizes pleasure and minimizes pain. The change of tides in the UK legal system regarding Euthanasia can be seen in the recently published Report by the Commission on Assisted Suicide. The report has proposed that a person, who forms an informed consent to end his life, should be allowed to do so with the informed opinion of two doctors who would prescribe medication that terminates his life. The requirement is that a voluntary choice be made without any depression of pressure from family. Moreover, the report outlines that the patient must be clearly made aware of all possible treatments and options. Lastly, it must be noted that ethical balance definitely tilts towards banning euthanasia as sanctity of life must be maintained in all circumstances. However, it should also be remembered that sanctity of life follows from the individual himself: if he can live his life according to his rules, he should also be able to end it. Moreover, assisted suicide should be legalized for one main reason: why should patients travel all the way to Switzerland to end life? If it is a human right UK law must adhere to it. Therefore, it is arguable and is highly subjective to suggest that which side of the argument carries more weight. But it can be safely maintained that change is gradual, it is likely that assisted suicide will be made into a law with particular safeguards in place to avoid abuse. WORDS: 3,094 (EXLUDING FOOTNOTES AND BIBLIOGRAPHY) BIBLIOGRAPHY: Suicide Act 1961 European Convention of Human Rights 1951 Regina (Purdy) v Director of Public Prosecutions (Society for the Protection of Unborn Children intervening) - [2010] 1 AC 345 R. (on the application of Pretty) v DPP [2001] UKHL 61; [2002] 1 A.C. 800 (HL) Pretty v United Kingdom (2346/02) [2002] 2 F.L.R. 45 (ECHR) ‘Decision On Prosecution - The Death By Suicide Of Daniel James’ (2008) www.cps.gov.uk DPP Guidelines issued under Debbie Purdy case www.cps.gov.uk Heywood, R. (2010) ‘R. (on the application of Purdy) v DPP: clarification on assisted suicide’, L.Q.R., 126(Jan), 5-8 Donnely, S. Purcell, S. (2009) 'The evolution of the law on assisted suicide in the United Kingdom and the possible implications for Ireland ', M.L.J.I, 15(2), pp. 82-92. Rao, S. (2011) 'India and euthanasia: the poignant case of Aruna Shanbaug', Med. L. Rev, 19(4), pp. 446-456. Keown, J. (2002) 'No right to assisted suicide', 61(1), pp. 8-10. Morris, D. (2003) ‘Assisted suicide under the European Convention on Human Rights: a critique’, E.H.R.L.R., 1, 65-91 Pedain, A. (2002) ‘Assisted suicide and personal autonomy’, C.L.J. 61(3), 511-514 Burns, S (2009) 'Human Rights: Compassionate clarity', NLJ, 159(7385) Miller, J. (2012) 'Suicide to be legalised?', NLJ, 162(7495), Nwafor A. O. (2010) ‘Comparative perspectives on Euthanasia in Nigeria and Ethiopia’, A.J.I.C.L. 18(2), 170-191 Assisted Death: A Study in Ethics and Law By L. W. Sumner M. Davies, Textbook on Medical Law, 2nd edn, Blackstone Press Ltd, Great Britain (1998), p. 344. Assisted suicide and euthanasia: a natural law ethics approach By Craig Paterson http://www.commissiononassisteddying.co.uk/  http://www.intelligencesquared.com/events/assisted-suicide-should-be-legalised www.assistedsuicide.org Boseley, S (2011) 'Assisted suicide could be 'legalised' in groundbreaking case’, The Guardian, 18 August. Hirsch, A. (2009) ‘Debbie Purdy wins 'significant legal victory' on assisted suicide’, The Guardian,  30 July ‘Assisted suicide: Debbie Purdy welcomes new guidelines’ The Telegraph, 25 Feb 2010 Read More