UK and the Assisted Dying Bill: Autonomy in Death Continues to Wait Its Turn
Last week, the Assisted Dying (No.2) Bill (‘the Bill’) was rejected by 330 to 118 in a historic vote in the House of Commons. The Bill was the first ever serious attempt to reform the law related to assisted suicide in the UK. While it is not an offence to commit or attempt to commit suicide in England and Wales, Section 2(1) of the Suicide Act 1961 criminalises any assistance rendered to facilitate the commission of suicide, or abetment thereof. The Bill had sought to enable competent adults suffering from terminal illness to request assistance in ending their lives.
The Bill forged a language that gave due weight to judicial safeguards against the abuse of its provisions and concerns about determination of legal competence. At the same time, it empowered individuals to end their lives with dignity through appropriate assistance. However, in the House of Commons, the view that modern palliative care cannot ensure dignified death prevailed.
The Bill addressed the question of autonomy and self-determination of individuals suffering from progressively deteriorating, irreversible conditions (defined as ‘terminal illness’ under Clause 2), who have less than six months to live. Under Clause 1, a judge of the High Court (Family Division) could allow the applicant assistance in terminating his/her life upon being satisfied that he/she has the capacity (determined according to the Mental Capacity Act, 2005) to make a declaration to this effect, and the “voluntary, settled, and informed” wish to end his/her life. This recourse was to be made available to all adult citizens living ordinarily in England and Wales for at least one year. Safeguards included allowing applicants a ‘cooling off’ period of 14 days from the date on which the declaration was made and a requirement that the declaration be countersigned by an independent doctor.
A matter of great interest was the tone of the debate surrounding this Bill. Its proponents articulated questions about life and death as a matter of individual autonomy. In a series of cases in the past (such as the Diane Pretty (2002), Debbie Purdy (2009) and AM v GMC (2015) decisions), courts have been reluctant to characterise these questions as issues of individual rights. They have been extremely guarded in their discussions about the right to privacy in this context, even where the argument was raised by the petitioners. In part, this seems to have been prompted by ideas of Parliamentary supremacy, as was unambiguously stated in the case of Nicklinson (2014).
The opponents of assisted suicide have long subscribed to the view that the intrinsic value of life is paramount, and that an effective assistance through modern palliative care can ease the burden of natural, painful death. In this context, it was remarkable to have a bill which moved towards incorporating a language that prioritised dignity through ‘informed choice’ of ‘competent individuals’. The DPP’s final policy of 2010, which discouraged prosecutions in cases where assisted suicide was a truly autonomous decision by the patient, was a progressive step in this direction. It is disappointing that this principle did not find Parliamentary endorsement.
The classification of ‘interests’ discussed by Dworkin in Life’s Dominion is a useful lens to view the dilemma. Dworkin distinguished between experiential interests (those essential for mere survival, like eating, drinking, responding to the stimuli) and critical interests (higher order interests like thinking, reasoning abilities). He suggested that the latter were indispensable to ensure quality of life. If an individual is unable to satisfy his/her critical interests, such a situation devalues his/her life substantially and hence his/her autonomy to choose death over such existence ought to be recognised. The reform proposed in the Bill was based on similar ideas.
While it is unlikely that there will be another attempt to reconsider the law any time soon, this episode has revealed the significant shift in the public support towards euthanasia which could set the tone for legislative action in the future.