Legislating the right to die

Currently in the UK, there is a blanket ban on assisted dying, which is punishable by up to 14 years in prison. This is despite decades of campaigning by groups such as “Dying in Dignity” and a plethora of terminally ill individuals seeking to end their life legally.

Opponents say that legalising assisted dying would leave it open to abuse, and lead to wrongful deaths. However, campaigners for its legalisation say that it would just allow those who are suffering to end their pain.

Applications for judicial review around this area have been repeatedly shut down by the High Court over the years. That being said, attitudes towards the right to die seem to be changing, and some MPs believe a law change could even occur within the next four years.

The UK’s legal stance

Currently in the UK, the ban on assisted dying is legislated under the Suicide Act 1961. However, while it is not a crime for an individual to end their own life, under Section 21 it is a criminal offence to “aid, abet, counsel or procure the suicide of another or an attempt of another to commit suicide”. It is also punishable by up to 14 years in jail.

That being said, according to official figures from the Crown Prosecution Service (CPS), although between 1 April 2009 and 31 July 2020 there were 162 referrals to the CPS, 107 of those cases did not proceed any further, and 32 were withdrawn by police. As of the 31 July 2020, there were seven ongoing cases and overall three cases have led to a prosecution.

This, in part, is due the guidelines brought in by Keir Starmer QC, the former Director of Public Prosecutions (DPP) back in 2010. These guidelines highlighted the importance of making the distinction between those who have helped a loved one end their life, and those who have committed homicide.

The blanket ban has been challenged numerous times throughout the years. In 2014, in the R (Nicklinson) v Ministry of Justice (MoJ) case, a number of a claimants appealed to the Supreme Court to declare that Section 21 of the Suicide Act 1961 was incompatible with Article 8 of the European Convention on Human Rights (ECHR). Ultimately, the court decided not to make a declaration.

In 2017, Noel Conway, a sufferer of motor neuron disease (MND) and a campaigner for death with dignity, sought to judicially review the Act on the same grounds as the 2014 case. Once again, this judicial review was rejected. Then, in June 2018, the Court of Appeal dismissed an appeal, and later in November the Supreme Court refused permission to appeal.

Lack of compassion

Those pushing for the legalisation of assisted dying argue that the current laws completely lack compassion. Phil Newby, an assisted dying campaigner and MND sufferer argues that criminalising the act causes many to live in fear of pain.

Speaking to Sky News, Mr Newby said: “I see a really burning injustice in the way that people who are terminally ill are treated by the legal system”. He added: “Part of living a good life is not living in fear, and living in fear of a long and drawn out ,unpleasant,  horrible death, is a way of taking away a good quality of life”.

Mr Newby himself challenged the total ban back in 22 October 2019.  Applying to the High Court for a judicial review, he argued that S2(1) Suicide Act 1961 was incompatible with Article 8(1) of the ECHR. This application was refused on 19 November. Later in January 2020, his appeal was refused, too. The conclusion made by Lord Justice Irwin was: The courtroom is not an appropriate forum for the discussion of the sanctity of life”.

Reflecting on the injustice of the current legislation, Lord Falconer, a Labour peer and the co-chair of the All-Party Parliamentary Group for Choice at the End of Life, spoke in support of Mr Newby: “The law is an absolute mess and totally lacks compassion”. He added: “It is so urgently time for a change”.

In an effort to reframe the way assisted dying is regarded, and raise awareness of its importance, the “Acts of Love” campaign launched back in 2019. This campaign was led by Ann Whaley, who was investigated by police for supporting her husband’s wish to die at Dignitas in Switzerland. The message that the campaign projected argued that compassion is not a crime, and should not be treated as such.

The consequences of legalisation

While campaign’s such as “Acts of Love” have garnered widespread support, there are of course those who are still vehemently opposed to the legalisation of assisted dying.

The campaign group, “No to Assisted Suicide,” argues that the introduction of such laws would have dangerous consequences. One of its main points against legalisation stems from the belief that it would lead to wrongful deaths.

On the campaign’s website, it outlines that instead of choosing to end their lives of their own free will, many terminally ill people who choose assisted dying, do so due to feelings that they are a burden. The website then references that in Washington State, where assisted dying is legal, 59% of those who died as a result of assisted dying, identified with feeling like a burden.

Meanwhile, for those who argue that it is cruel and unfair to prevent individuals from legally getting access to assisted dying, groups such as “Care Not Killing,” say that better palliative care is the answer. The alliance argues that very few people actually seek out assisted dying. As a result, it says that legalising this could encourage those who don’t have access to good medical and psychological support to pursue assisted dying out of desperation.

Additionally, there is also the issue that once legalised, it would be incredibly difficult to identify whether each case of assisted dying was truly voluntary.

Support gains momentum

Despite resistance from a number of campaign groups, support for assisted dying has gained significant momentum over the last few years. Speaking about whether it is now the time to propose new legislation, co-chair of the APPG for Choice at the End of Life, Andrew Mitchell MP said parliamentary opinion has not yet moved far enough. That being said, he added that in the meantime, in order to “move the dial,” it is essential that the group work on developing “other mechanisms,” including inquiries and parliamentary inquiries.

Karin Smyth MP, also a member of the APPG, argued that the global pandemic has changed the way that people in the UK think about death and dying and the choice that surrounds this.  Specifically, the MP for Bristol South, said that Covid-19 had: “Heightened the lack of choice and control that people have normally in our country”.

Sarah Wootten, Chief Executive of Dying in Dignity agreed with this sentiment, and stated that the virus has “reignited” the debate around assisted dying. She argued the key reason behind this is because it has forced the nation to “confront [its] own mortality” and has “[Woken] [it] up to what terminally ill people experience every day”.

Further to this, Wooten outlined that despite the blanket ban, one person a week travels to Switzerland to end their life. However, importantly, she highlighted that this is only accessible to those who have the time and financial means, as a Dignitas death typically costs around £10,000.

Since the Commons overwhelmingly rejected the Assisted Dying Bill in 2015, a number of medical bodies in the UK have relinquished their opposition to the law change. This includes the Royal College of Physicians, who dropped their opposition to assisted dying in 2019, followed by the Faculty of Clinical Oncology. Additionally, according to a poll by Dying in Dignity, 55% of GPs think that medical organisations should take on “a position of neutrality on the issue of assisted dying”.

This support is matched in the general public, too. According to research conducted by the campaign group,“My Death, My Decision,” between 88% and 93% of respondents believed that assisted dying is acceptable in “at least some” situations.

Now, an open letter has been written to the Justice Secretary, calling for assisted dying laws to be reviewed. The letter, signed by Phil Newby, Jane Nicklinson (the wife of Tony Nicklinson), Omar Puente (the husband of Debbie Purdy), the mother of Omid T, outlined the importance of a legislative change, to relieve the suffering of many within the UK.

It read: “Following our unsuccessful legal cases, it is now obvious that parliamentarians alone have a responsibility to look at this matter again. They must not allow our cases to become the final word on the matter, or else countless others will experience the indignity, suffering and agony that we can attest that this law creates.The evidence on assisted dying has simply changed, and parliament cannot afford to turn a blind eye any longer”.

Commenting on the importance of the letter, Andrew Copson, the Chief Executive of Humanist UK and organiser of the letter, said the signatories were “uniting to call for a review into one of the most morally unjust laws in our country”.