The Suicide Act

Critically assess whether the Suicide Act 1961 should be amended to permit physician assisted suicide. The Suicide Act 1961 amended the law of England and wales and professed that the act of suicide is not a criminal offence. However, section 2(1) of the current legislation makes it a statutory offence to “aid, abet or counsel or procure the suicide of another.”[1] Thus the criminal act carries a sentence of up to fourteen years’ imprisonment for assisting another to commit suicide. This subsection of the legislation commonly relates and incorporates to all cases of assisted suicide including Physician assisted suicide (PAS). Nevertheless there has been a myriad of efforts to legalise PAS; commonly, by means of private members’ bill in the House of Lords however none have been successful yet. Lord Joffe, a prominent supporter of PAS, proposed the ‘Assisted Dying for the Terminally Ill Bill’ three times, in order to provide the opportunity of PAS to individuals who were critically ill, however the possibility for the current legislation to be amended was opposed in 2006 by 148 votes to 100[2]. However, whether the Suicide Act should be reformed to permit PAS has proven to be somewhat stimulating to many legal theorists and contemporary academics for decades. The term ‘Physician Assisted Suicide’ relates to a circumstance by which a physician intentionally provides a treatment to a knowledgeable and capable patient on her or his request. Even though in the case of such an event, the means to the death of the individual is self-administered, the physician’s role as an agent is in breach of s.2 of the Suicide Act 1961.[3] Nevertheless the American and European jurisdictions share common principles regarding such instances, which insinuate that PAS is considered to be a moral wrong and an offence of criminal nature on a universal scale.[4] Currently, there have been prominent legal proceedings in America and Canada in pursuit of challenging the ‘universal belief’ that PAS is a criminal offence. According to the factual and moral assessments of PAS alongside further cases in the medical field, the patient’s death has a correlation with the Actus Reus or omission executed by the physician. In cases as such, it is clear that the position of human rights’ jurisprudence[5] in regards to medical law is somewhat controversial, thus prompting the need for the current legislation of PAS in the UK to reform. Prior to legalising PAS, some would argue that ethical and religious grounds should be taken into account. For instance a common ethical concept whereby many emphasise moral significance to PAS, is the fact that it does not directly kill the patient and the patient is simply assisted. However, In Williams’ ‘Intention and Causation in Medical Non-Killing’[6], Williams argues that in both instances physicians are inducing the means to death. Furthermore, she puts forward an oblique alternative; the formation of an identifiable offence in which she calls a ‘medical mercy- killing’ whereby the particular circumstance, intention and the patient’s consent should be considered equally. Williams draws attention to the differences between an omission and an act in relation to the execution of PAS. Nevertheless she maintains that such terms should not be manipulated because it could “absolve medical professionals from criminal liability.”[7] According to Williams, the law makers are culpable of interpreting a physician’s withdrawal of an effective treatment from the patient as “falling outside the general legal prohibition against deliberate active killing”[8]; therefore the withdrawal of the beneficial treatment is not merely an omission but could be perceived as a criminal offence as death is an immediate result. Thus Williams is concerned that the classification and depiction of an ‘omission’ and an ‘act’, “rules out the signiï¬Acance of intention and causation from those activities perceived to be omissions.”[9] Albeit an omission is a concept in criminal law which concerns the Actus Reus of a crime and not the ‘intention’, In the case of Airedale Trust v Bland[10] the House of Lords did acknowledge that the physician intended to withdraw the feeding tube to end the life of his suffering patient. However in regards to the case, It is worthy of note that the law permits an omission leading to the patient’s death whereby the patient has given consent to discontinue the treatment. Furthermore, the law also enforces upon the fact that the court’s approval is needed if the patient is in a ‘Permanent Vegetative State’. Therefore one could culminate that if a physician can in fact omit to giving treatment then in this specific context, the Suicide Act should be amended to permit PAS. However, the amendment of the Suicide Act could possibly undermine some ethical and religious principles. The sanctity of human life is a fundamental moral argument against PAS which upholds ethical principles. The notion that life is sacred is indeed an issue raised in the Assisted Dying for the Terminally Ill Bill; “life is God-given and cannot in consequence be terminated by others, even on request.”[11] Hence this ethical concept puts forward the argument that every individual deserves to be valued irrespective of the pain or experience that they are going through, as the human life is an indispensable good and not to be treated as a means to an end. Thus this concept forbids the killing of a patient since it’s not a legitimate defence. Nevertheless, atheists and other non-classical theists maintain that there is also a secularist approach of the concept of sanctity of life. For instance, Professor Glover defined the principle as “an absolute barrier, an absolute ban, not derived from a religious source on the intentional taking of innocent human life”[12] in which he understood to be similar to the religious and moral concept. Indeed the sanctity of human life seems to be a universal concept, therefore it highlights the possibility of a wide scale opposition if PAS is legalised. Furthermore in the Bill, Rev Gill supported the idea that the amendment of the act could result in a national upheaval, he maintained that “to secular people life is still given, it is given by the people; you did not invent your life. Human life is in that sense special and to be treated with care…whether we are religious or not.”[13] Indeed, the sanctity of human life seems to be a polemic issue in regards to the moral and religious sphere within society. Therefore if the majority of the population consider that there is a moral duty to uphold the sacredness of life, then the legalisation of PAS could possibly lead to a social upheaval. Nonetheless, it can be perceived that the sanctity of human life affects the underlying choices that concern the human autonomy. The fundamental concept of autonomy is the right for an individual to define the boundaries that define his life. To the dogma of justice, the value for the patient’s autonomy is regarded as essential to those would like the Suicide Act to be amended to permit PAS. In some instances an individual is incapable of taking their own life; therefore the need for medical expertise of a physician in order to die painlessly is necessary. In the case of Pretty[14], it was maintained that Pretty had the ‘right to life’ due to the fact that in Article 2 of the ECHR[15], “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally”. [16] Thus she argued that the Courts should not repudiate her husband’s assistance in her pursuit to die as the Article protects her liberties but also the ‘right to life’. The Article seemed to recognise that individuals like Pretty could choose whether to end their life. In regards to this case, it can be argued that a consenting patient should have the freedom to choose whether a physician shall assist them to die. Nonetheless, Richard Posner takes a pragmatic view in relation to the human autonomy; he maintains that “A prohibition against assisting suicide cannot be justified on this ground in cases in which the person who wants to end his life is incapable of doing so without assistance”.[17] Hence, in exceptional situations, the sanctity of human life seems to act as an impediment to individuals like Pretty because her autonomy is somewhat appropriated.[18] Therefore, by legalising PAS individuals’ are treated as autonomous persons, thus the freedom of choice to die in dignity is valued and respected. However, without strict guidelines and safeguards, legalising PAS could lead to many complicated problems. In some instances, the principle of autonomy undermines the sanctity of human life as autonomy is not regarded as a moral absolute. It is significant to measure the individual’s freedom against what is rational because the principle of autonomy has no universal grounds due to its subjectivity. For instance, Kant maintains that rational agents should be treated as an end to themselves due to religious beliefs that the human body belongs to a divine being, therefore a “Man cannot have the power to dispose of his life.”[19] Hence, Kant lays great importance on rationality over prima facie obligations. However, according to the Utilitarian theory, an outcome or motive should benefit the majority without the interference of one’s beliefs or moral standards because every action should apply to “the greatest good for the greatest number of people”.[20] Even though Kant highly values the human autonomy he considers the duty to be a rational act because an individual should be well informed about the medical procedure in order to be able to base a decision on a universal principle (‘thou shalt not kill’) and not on their self-interest. It is worthy of note that human life is also a fundamental good as opposed to an instrumental good, hence being a value in itself than a means to an end. Albeit the concept of sanctity of life values human life and reinforces a physician’s duty of care to the patient, the Law makers should focus on a moral concept whereby the majority will be able to relate to and comprehend. Indeed, if the principle of autonomy is a universally accepted concept amongst members of this society then PAS should be permitted because the theory respects the notion that every individual deserves the right to life and the right to die. Nevertheless there are practical arguments which expose the complication which could arise if the act is to be amended to permit PAS. The concept of slippery slope suggests that by permitting PAS, physicians will gradually move away from the standards and principles which they are supposed to uphold, thus inevitably leading to involuntary PAS. For instance, in places where PAS is legal, such as in the Netherlands, it has been documented that “…only 53 percent of these cases did the patient ever express interest in receiving euthanasia.” [21] Certainly, it is clear that if PAS is legalised, the chances of involuntary PAS is far more than likely. In support of this contention, in Dr Ezekiel’s critical essay he reports that in “15 percent of euthanasia cases, patients were not involved in the decision to end their lives, sometimes even when they were competent”. [22] As a result, it is empirical that PAS could be practised regardless of the patient’s consent. It is even more deplorable that such instances occur when the action is illegal and the penalties are of such severity in the Netherlands, with persistent claims of “explicit and established safeguards” [23] exempting involuntary PAS. To an extent, the slippery slope argument highlights prevalent problems that society would have to deal with if the suicide act is amended to legalise PAS. However, many have criticised the slippery slope as a fallacy because it makes an assumptive leap to an irrational conclusion. Almagore suggests that if specific guidelines and safeguards are set in place then PAS would benefit those who are in palliative care and terminally ill.[24] Nonetheless, in his discussion he outlines the dangers of permitting PAS. Almagore elucidates that PAS should be practised by experienced physicians who have known the patient for a long period of time otherwise physician’s will be guilty of making irrational judgements on cases ; he uses the example of Dr Kevorkian who assisted; “44 people in one state; 15 who were terminally ill and 29 who suffered from chronic conditions”.[25] From this study, one can easily draw attention to the dangerous consequences of PAS if the law is amended to permit it without any effective safeguards. Not only does the slippery slope argument highlight the correlation of voluntary and involuntary PAS, but it also accentuates the degree of risk to vulnerable patients. Such lives could inevitably be ended against their autonomy and when there are alternative methods to relieve suffering, it could be more expensive than the administration of the drug. For instance, according to Almagore, Kevorkian was “unqualified and was disinterested in examining patients and examining their cause of illness and assisted those who were misdiagnosed.”[26] Permitting PAS would therefore result in some Physicians favouring other pain relieving and cost effective factors. In addition to the slippery slope argument, as well as addressing issues such as the disrespect, degradation and contempt of the value of human life, it also focuses on concerns surrounding the efficiency on both cost and time. In relation to the economic analysis regarding the creation of such legislation, the Kaldor-Hicks efficiency[27] illustrates that PAS maximises wealth as it releases beds in hospitals and reduces the government’s spending on palliative care and medication for terminally ill patients, thus generating greater net benefits. However, the Pareto efficiency theory insinuates that PAS does not necessarily make one party better off[28] as there is a ‘Pareto optimal’ allocation of recourses. The outcome of the action executed by the physician is sufficient as there is an equally sufficient compensation and also improves the welfare of the state without the deprivation of the other. These theories of efficiency are certainly hard to apply since involuntary PAS would not be Pareto efficient or moral as there is an exclusive focus on generating greater net benefits for the majority. Therefore, the slippery slope argument is indubitably sound because if the legislatures take a Kaldor-Hicks approach then surely involuntary PAS would to some length become a reasonable means. Indeed the Assisted Dying for the Terminally Ill Bill was determined on permitting assisted suicide only with the facilitation of a Physician, it was somewhat clear based on evidence that other states carried out involuntary assisted suicide after the legislation was passed for PAS. Nevertheless, according to the Attorney-General it was apparent that, “the traditional attitude of the common law was to condemn suicide until the law was changed by the Suicide Act 1961”.[29] It seems to the majority that though the assisted suicide Laws in the Netherlands and Belgium specify that physicians alone are permitted to assist with suicide, the documented ill-practises executed by these Doctors creates a prodigious challenge to the legislatures in England and Wales. Nonetheless when legislations as such are amended many would argue that simply providing treatment with the consent of the patient does not abuse an individual’s autonomy. However implementing safeguards for PAS would be complicated as explored in the slippery slope. Even so, the principle of autonomy takes into consideration the very matter of an individual’s freedom of choice a profoundly serious virtue and right and one that necessitates a remarkable deal of justification. Bibliography Cases Airedale Trust v.Bland [1993] 1 All ER 821 [HL]
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Contents [show]1 R. (on the application of Pretty) v DPP [2001] UKHL 612 [14] R. (on the application of Pretty) v DPP [2001] UKHL 61
R. (on the application of Pretty) v DPP [2001] UKHL 61
Legislations European Convention on Human Rights Suicide Act 1961 Books and Reports

‘The Concept of Pareto Efficiency’, <https://pages.uoregon.edu/cjellis/441/441notes.pdf>last accessed 15 December 2013,
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Almagor R C, “A Circumscribed Plea for Voluntary Physician- Assisted Suicide”, (2000) 913 Annals of the New York Academy of Sciences 127

Elliott and Quinn ‘English Legal System’ (14th edition, Pearson 2013)

Emanuel E J, ‘What is the Great Benefit of Legalizing Euthanasia of Physician-Assisted Suicide?’ (1999) 109 Ethics |<https://philosophyfaculty.ucsd.edu/faculty/rarneson/Courses/EMANUELwhatisthebenefit.pdf> last accessed 12 December 2013
Gorsuch N M, ‘The Future of Assisted Suicide and Euthanasia’ (Princeton University Press 2006), Ch. 7

Kant I, ‘The issue of Suicide’- <https://philosophia.uncg.edu/sites/default/files/PHI301metivier/pdf/Kant-Suicide.pdf >pp. 147-154 last accessed 12 December 2013

Kennedy and Grubb A, ‘Medical Law’ (2nd edition, Butterworths 1994)

Posner R, “The Tanner lectures on Human Values- Euthanasia and Health Care: Two Essays on the Policy Dilemmas of Aging and Old Age” <https://tannerlectures.utah.edu/_documents/a-to-z/p/Posner96.pdf>last accessed 14 December 2013, (Yale university 1994)

The Select Committee| ‘Assisted Dying for the Terminally Ill Bill’ |HL|(2004-05)| HL Paper 86I |<https://www.publications.parliament.uk/pa/ld200405/ldselect/ldasdy/86/8604.htm> Last accessed 15 December 2013

Williams G, ‘Intention and Causation in Medical Non-Killing: The Impact of Criminal Law Concepts on Euthanasia and Assisted Suicide’ (Routledge-Cavendish 2007)

Stone R, ‘Textbook on Civil Liberties and Human Rights’ ( 6th edition, Oxford University Press 2006)

Jackson E, ‘Medical Law Text, Cases and Materials’ (3rd edition, oxford university press 2013)
Stauch M and Wheat K with Tingle J, ‘Text, Cases and Materials on Medical Law’ (3rd Edition, Routledge Cavendish 2006)

Slapper G and Kelly D, ‘English Legal System’ -2013-2014 (Routledge 2013)

Molenaar J C, ‘A Report from the Netherlands’ [1987] Bioethics

[1] Kennedy and A. Grubb, ‘Medical Law’ (2nd edition, Butterworths 1994) page; 1282 [2] Emily Jackson, ‘Medical Law Text, Cases and Materials’ (3rd edition) (oxford university press 2013) page; 929 [3] Suicide Act 1961, s 3 [4] Jan C. Molenaar, ‘A Report from the Netherlands’ [1987] Bioethics page 156 [5] Kennedy and A. Grubb, ‘Medical Law’ (2nd edition, Butterworths 1994) page;1241 [6] Glenys Williams, ‘Intention and Causation in Medical Non-Killing: The Impact of Criminal Law Concepts on Euthanasia and Assisted Suicide’ (Routledge-Cavendish 2007) [7] Ibid 87 [8] Ibid [9] Ibid [10]Airedale Trust v.Bland [1993] 1 All ER 821 (HL) [11] The Select Committee| ‘Assisted Dying for the Terminally Ill Bill’ |HL|(2004-05)| HL Paper 86I |page 24/paragraph 53 [12] Ibid [13] Ibid
[14] R. (on the application of Pretty) v DPP [2001] UKHL 61
[15] European Convention on Human Rights [16] European Convention on Human Rights, Article 2 [17] Richard Posner, “The Tanner lectures on Human Values- Euthanasia and Health Care: Two Essays on the Policy Dilemmas of Aging and Old Age” <https://tannerlectures.utah.edu/_documents/a-to-z/p/Posner96.pdf>last accessed 14 December 2013, (Yale university 1994) [18] Neil M. Gorsuch, ‘The Future of Assisted Suicide and Euthanasia’ (Princeton University Press 2006), Ch. 7 [19] Immanuel Kant, ‘The issue of Suicide’- <https://philosophia.uncg.edu/sites/default/files/PHI301metivier/pdf/Kant-Suicide.pdf >pp. 147-154 last accessed 12 December 2013 [20] Elliott and Quinn ‘English Legal System’ (14th edition, Pearson 2013) page: 678 [21] E J Emanuel, ‘What is the Great Benefit of Legalizing Euthanasia of Physician-Assisted Suicide?’ Vol.109 No.3. (1999) 109 Ethics 640-1 [22] Ibid 640 [23] Ibid [24] R Cohen-Almagor, “A Circumscribed Plea for Voluntary Physician- Assisted Suicide”, (2000) 913 Annals of the New York Academy of Sciences 127 [25] Ibid [26] Ibid [27] A method used in economic analysis for legal scenarios for cost effectiveness. [28] ‘The Concept of Pareto Efficiency’, <https://pages.uoregon.edu/cjellis/441/441notes.pdf>last accessed 15 December 2013, Page; 1 [29] The Select Committee| ‘Assisted Dying for the Terminally Ill Bill’ |HL|(2004-05)| HL Paper 86I | paragraph 11

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