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The
law on Assisted dying has been debated rigorously in the United Kingdom for the
past decade. Many cases have been placed before the court to declare s2 of the
Suicide Act 1961 incompatible with article 8(1) of the ECHR1  but
with no success. The former states that a person commits an offence if he,
through an act, encourages or assists the suicide of another person; whilst the
latter affirms that (1) everyone has the right to respect for his private and
family life and (2) there shall be no interference by a public authority except
if it is necessary in the interest of national security, the prevention of
disorder and crime and for the protection of health and morals.                                                                                                                                                    The recent case was brought by Noel Conway,2 who is suffering from a motor neurone disease and
wish to control the timing of his death with the assistance of a doctor. His
appeal was dismissed on the basis that the blanket ban imposed by parliament is
a fair one, which falls within the margin of appreciation set by article 8(2)
of the ECHR. In particular Sales LJ stated that section 23 was necessary ‘to avoid creating a slippery slope
leading to incremental expansion over time of the categories of people to whom
similar assistance for suicide might have to provided’.4                                                                                                                     This
essay will evaluate the statement concluding that it is a reasonable, fair and
just one. It will analysis the negative impact that a modification of s.2 will
cause and highlight the reason why it must not be changed; in particular to
protect the week and vulnerable and the sanctity of life. 

 

Protection of the weak and vulnerable

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On
appeal5  Mr
Conway proposed an alternative bill, he argued it will protect sufficiently the
weak and the vulnerable, and the outline was similar to the one introduced by
Lord Falconer of Thoroton which never passed the second reading. The bill
prohibited the right to assisted suicide to individual aged under 18, people
who have not been diagnosed with a terminal illness and given a prognosis of
six months or less to live, or did not have the mental capacity to decide to
receive assistance to die or make the decision voluntary. To further safeguard
the weak and vulnerable he continued that the individual has to make a
voluntary written request which must be witnessed and his treating doctor must
consult with an independent doctor to confirm if all the substantive criteria
are met, and only then, after a High Court judge has analysed all the evidence
should decide whether to allow the assisted suicide act. 

At
first sight it could be said that there is no fairness in the bill proposed by
Lord Falconer and it may be one of the many reasons why most MPs did not favour
the proposed bill.  Firstly, are children
with terminal illness not in the same pain as terminal ill adults? So why must
adult be allowed and children be discriminated? What about young adults aged
16/17 who are able to decide clearly and voluntary and people who are facing
many years of life in pain? An example is the Nicklinson6  case;
the three claimants were not terminally ill but were suffering from a locked in
syndrome.  Two claimants wanted the court
to allow them euthanasia whereas the third wanted to know if his carers would
have been prosecuted by the DPP if they would have helped him to travel to
Zurich to commit suicide at the Dignitas clinic, their appeal was dismissed.
Many people would suggest allowing them instead of terminally ill people as
their condition is more precarious and difficult to live with.

 

Mr
Gordon acting as the claimant counsel argues that the proposed bill will be
affective to protect the week and vulnerable7 as it is aimed only at terminally ill people, in
particular the involvement of a High Court judge would ensure that the decision
of assisted suicide was voluntary. The bill does not guarantee such a thing, it
allows few people which could still be vulnerable and weak to commit suicide,
moreover the involvement of the High Court does not give any assurance rather
than making the process more expensive. As stated by Sales LJ8  some vulnerable people might voluntarily make the
decision just because they consider themselves a burden to others, how are
judges supposed to know the reason behind their decision?  On this ground, Saimo9 argues that the Supreme Court forgot that family
judges and judges of the Court of Protection make this sort of decision on a
daily basis in relation to the welfare of children and so this reasoning is
disingenuous, but it is worth to consider the debate on Lord Falconer’s bill.
Rob Marris admitted itself that the problem of patients feeling as a burden to
family members is real, and he hopes that patient would not feel that way but
he cannot guarantee it10. It is a fact that this bill will not protect
vulnerable people and hoping is not going to address the issue, as Joan Ryan
replied:

To say that we hope that they will not feel a burden
is not a reassurance, because hope is not enough. There is evidence that under
the Death with Dignity Act in Washington state, 59% of people who went down
this route felt that they were a burden on their family and friends”11.

 

Mr
Conway  also argues12 that he does not want to get to a stage where his
quality of life is so limited as to no longer be able to find enjoyment in it,
but he is sending the wrong message which is: the life of a disabled person is
worth less than a person who is not disabled and as BGS13  states
‘once quality of life becomes the yardstick by which the value of human life is
judged, the protection offered to the most vulnerable members of society is
weakened’. It is also important to state that most vulnerable people do not
really intend or wish to die, the BGS continued to submit that more often these
wishes are a cry for help rather than a genuine desire for death and by taking
care of their needs their wish for death diminishes, even more important is the
fact that many requests to end the patients’ life come from their family
members from the fear of unwanted medical care. 
Scope, the charity organisation, has published that 65% of the disabled
people are concerned that a change in the law will amount to pressure from the
society to end their lives,14 ‘The right to
die can so easily become the duty to die’.15                                                                                                                      The evidence shown specifies that the
protection of the week and vulnerable is a reason enough to not pass this bill
as the uncertainty regarding the patient will has to be considered alongside
the treat from society. Vulnerable people must be supported, the message that
needs to be perceived is that their life is still valued and worth living up to
the last second. They should not feel pressured to consider suicide as the only
way of ending their suffering or condition and most importantly the sanctity of
life must be preserved.                                                                                

Preservation of the sanctity of Life

 

It
is worth to emphasize that the bill is also incompatible with art 2 of the ECHR
1950 which states that no one should be deprived of life intentionally save in
execution of a sentence or by defence; as the Council of Europe has explained a
terminally ill person wishing to die cannot constitute a legal justification to
carry euthanasia or assisted suicide. 16

 

Mr
Gordon has criticised this point, by stating that if someone is terminally ill
and will die shortly the sanctity of life as a value is harmed less by
introducing the proposed bill. Although this statement may seem convincing it
is important to remind our self that we do not know the effect that the bill
will have on society except for a negative one. Sir Peter Bottomley argues that
in Netherland, when euthanasia was introduced over 10 years ago there were 1600
deaths a year, now 4100, on a UK scale that will be 15000 deaths a year17. It could be argued that it is only an estimate which
can be deceiving, but are we really going to take the chance to prove the real
numbers?

 

Another
interesting fact is that Mr Gordon has not consider that passing this bill will
mean opening the door to other claimants, people like Mr Nicklinson, Lamb and
Martin. It is distressing the fact that one of the claimant died by starvation;
Herring18 has concluded that the case is hardly a victory for
the sanctity of life supporters due to the tragic ending, but it important to
note that two lives were saved instead of losing three.  Siobhain McDonagh argued that people were
coming to vote to the Falconer bill because they wanted something more
permissive in the future19. Now this is the reason why his bill is not so
harmless, although it might seem innocuous now, it could have a great damage on
society in the future by opening the door also to non-terminally ill
individuals.

 

The
assisted dying debate has found many criticism, Saimo argues in his journal
that the debate in parliament was with no quality as it lasted for only four
hours and only 85 MPs where present, he continues by stating that “a debate
will be a generous description of the proceeding” as the issue could not have
been addressed properly due to the circumstances explained before;20 but it is important to state that the MPs who were
not present probably did not wanted a change in the law, because the bill was
rejected by 330 votes to 118.21

 

To
conclude the right to assisted suicide is a very delicate subject where opinion
can vary, however it is important to remember that although people like Noel
Conway, Mr, Nicklinson and others have firm awareness of what they want and
their decision has not been jeopardize by external factors; many others are not
yet at this stage, the so-called week and vulnerable, and as explained
throughout the essay the state must protect the interest of this individuals
first, moreover:

Respect for life underpins our criminal and human
rights laws, as well as the Hippocratic oath, taken by all our doctors, to
promote life. The Bill challenges that respect for life. (…). It would not just
legitimise suicide, but promote the participation of others in it. (…) The law
should not be changed.22

 

1 European Convention
of Human Rights 1950, Article 8

2 Noel Douglas Conway v The Secretary of
State for Justice 2017 EWHC 2447

3 The Suicide Act
1961, s 2

4 Noel Conway (n.2)
127 (Sales LJ)

5 ibid 14

6 R v Nicklinson 2014 UKSC 38

7 Noel Conway (n.2) 98

8 ibid 100

9 Saimo
Chahal, “In Practice: Legal update: Assisted Dying: A right to autonomy and
dignity” (2017) LS Gaz, 2

10 HC
Deb 11 September 2015, vol 559, cols 660

11 ibid
cols 661

12
Noel Conway (n.2) 6

13 Physician
Assisted Suicide – British Geriatrics Society (Bgs.org.uk, 2017)    

accessed 25 December 2017.

14 Noel
Conway (n.2) 71

15 HC
Deb 11 September 2015, vol 559, cols 665

16 PACE – Recommendation 1418
(1999) “Protection of the human rights and dignity of the terminally ill and
the dying” (Assembly.coe.int, 2018)

accessed 6 January 2018.

17 HC
Deb (n.15) cols 659

18 Jonathan Herring, “Escaping the shackles of law at the
end of life: R (Nicklinson) v Ministry of Justice 2012 EWHC 2381 (Admin)” (2013) 21 Medical law
review (3) 487, 497

19 HC
Deb 11 September 2015, vol 559, cols 659

20 Saimo
Chahal, “In Practice: Legal update: Assisted Dying: A right to autonomy and
dignity” (2017) LS Gaz, 2

21 Noel Conway
(n.2) 51

22 HC Deb (n19) cols 664

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