[WORD COUNT: 1974]
Q2.
The English law on the right to die is riddled with inconsistencies. Although patients
are permitted to refuse life-saving treatment (this right is enshrined both in statute 1
and at common law), 2 this emphasis on the patients’ right to choose and their
autonomy does not extend to assisted dying. Both practices inevitably lead to death
but only the latter continues to be criminalised. Only in the case of assisted dying
does the law favour paternalism over personal autonomy. This essay will
demonstrate that the current state of the law is not only illogical but also outdated
and simply inhumane. To do so, it will first analyse and evaluate the legal issues that
statutory provisions and common law create. Subsequently, the essay will inspect the
ethical dilemmas arising from the status quo. For balance, it will also examine and
scrutinise some of the legal and ethical challenges to assisted dying. Due to the
proximity of the phrases ‘assisted dying’ and ‘assisted suicide’ in definition and use,
the essay will use both interchangeably to refer to the same process.
A significant legal predicament arising from the current state of the law is the
inadequate and impotent nature of the governing legislation on assisted dying. Under
the Suicide Act 1961 (‘the Act’), a person is guilty of an offence if they ‘encourage or
assist’ the suicide of another, risking imprisonment of maximum 14 years.3 Firstly,
this section’s wording is highly problematic. The law conflates encouragement (which
is intrinsically wrong and should always remain criminalised) with assistance. Further,
it fails to differentiate between assistance for compassionate and malicious reasons.
This means that a person helping to relieve their terminally ill family member of pain
is held to the same legal scrutiny as someone who maliciously helps to end
someone’s life. This approach is outdated, and for this reason, Stephen Sedley
rightly referred to the provision as ‘[an] historical anathema’. 4 It is beyond doubt that
terminal illness is a difficult process for all parties; this law only adds unnecessary
mental anguish to everyone directly affected by it. The fear of prosecution of their
1
Mental Capacity Act 2005
2
Re B (Adult: Refusal of Treatment) [2002] EWHC 429 (Fam)
3
Suicide Act 1961, s.2
4
S. Sedley, ‘A Decent Death’ (2021) 43 LRB 20
1
, relatives most certainly deters the patient from moving forward with the decision to,
for example, travel abroad to undergo assisted suicide, and this can only prolong
their unnecessary suffering. Moreover, s.2(4) of the Act provides for proceedings to
be initiated only with the consent of the Director of Public Prosecutions (DPP). This
means that the pursuit under s.2 hinges on who the DPP is at the time which creates
uncertainty and can lead to inconsistent and arbitrary outcomes. Sensitive policies
should be governed by stable and up-to-date law; they should not be affected by
mere structural changes to a state agency. Further, the 2010 guidelines state that
prosecution is less likely to be required if the suspect was ‘wholly motivated by
compassion’.5 The reluctance to prosecute ‘compassionate’ cases of assisted dying
alone demonstrates that the current law is no longer fit for purpose. Indeed, between
2009 and 2021, only three out of 167 cases of assisted dying brought forward by the
CPS resulted in a conviction.6 The prosecution of such cases is evidently not in the
public interest. It is nonsensical and impractical to have a law which technically
criminalises certain acts but which in practice ignores and forgives. It is important to
remember however that, despite rare convictions, the fear of prosecution
nevertheless remains. The stigma and anxiety arising from criminalisation mean that
patients will most likely decide to continue to suffer rather than risk their relatives be
prosecuted after their death. Therefore, the current law in England is not only
outdated but also inhumane; its indifference and incoherence have too great of an
impact on patients and their families to continue to exist in its current substance.
Furthermore, the courts’ approach to the right to die has been inconsistent and highly
problematic. Firstly, the judiciary have much more often than not emphasised
autonomy above all else. Lord Donaldson recognised the existence of this principle in
common law when he held that ‘the patient’s right of choice exists whether [their]
reasons are rational, irrational, unknown or even non-existent’. 7 It is also important to
remember that it was the courts, and not Parliament, that first enshrined the right to
refuse treatment in the English jurisprudence. 8 However, the courts have not
extended this libertarian approach to the issue of assisted dying which is simply
5
The Director of Public Prosecutions, ‘Suicide: Policy for Prosecutors in Respects of Cases of Encouraging or
Assisting Suicide’ (Feb 2010), para.45(2)
6
Question for Attorney General, UIN 132, tabled on 11 May 2021 by Andy Slaughter MP, https://questions-
statements.parliament.uk/written-questions/detail/2021-05-11/132 accessed on 19 December 2022
7
Re T (Adult: Refusal of Treatment) [1993] Fam 95, at [113]
8
Re B (Adult: Refusal of Treatment) [2002] EWHC 429 (Fam) preceded the Mental Capacity Act 2005
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