Should assisted dying be permitted?

 In Gill's Blog

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What is your view? Should a terminally ill person be able to arrange for assistance to die at a time and place of their choosing? Many other countries have laws permitting this, but it has been a source of debate in the UK for over 20 years. Why raise it now? Because The British Medical Association (BMA) has made an historic step by voting in favour of taking a neutral stance on this issue after being against it for many years.

BMA decision

According to The Guardian, the BMA has dropped its opposition to assisted dying and adopted a neutral stance on the issue.

​The doctors’ union, which represents about 150,000 medics, voted to change its official position​ following a debate by members at its annual representative meeting in London. It had opposed legalising assisted dying since 2006.

​Some 49% of the BMA’s representative body voted in favour of a motion for it to move to a position of neutrality on assisted dying, including physician assisted dying, with 48% against it and 3% abstaining.

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Some years ago, Winchester Soroptimist Club organized a debate on this issue which was very well attended. The speakers included a local MP, representatives of the BMA and Dignity in Dying as well as a member of the Church who was a journalist. There were many retired medical practitioners present who all spoke in favour of assisted dying.

Court decisions

Phil Newby, a terminally ill man suffering from motor neurone disease, lost his appeal for a judicial review on assisted dying in 2020. He had asked the courts to undertake a ‘detailed examination of the evidence’ to determine whether the ban on assisted dying was compatible with his human rights. The Court of Appeal refused permission for a judicial review. As in previous cases the court decided that a change in the law was a matter for parliament. Lord Justice Dingemans said: ‘‘I have done so without an oral hearing…. because the essence of the claim has been argued in a number of different ways in a number of different cases.”

In The Public Guardian v DA & Ors [2018] EWCOP 26 Lord Justice Baker considered two applications brought by the Public Guardian and made under section 23 and Schedule 1 paragraph 11 of the Mental Capacity Act 2005, in relation to the validity of the words in Lasting Powers of Attorney (‘LPAs’). The first test case relates to words regarding euthanasia or assisted suicide – the Public Guardian filed nine applications in the form of COP1 in respect of instruments purporting to create LPAs which had been submitted for registration. Each of the instruments contained provisions relating to euthanasia or assisted suicide. The core issue in these cases was whether instructions or expressed preferences which would bring about the end of the Donor’s life are ineffective within the meaning of Schedule 1 paragraph 11 (2)(a) MCA 2005.

Lord Justice Baker ruled that an instruction or preference in an LPA directing or expressing a wish that an attorney takes steps to bring about the donor’s death is instructing or encouraging someone to commit an unlawful act and therefore ineffective. He accepted the Public Guardian’s submission that all the provisions in these cases are ineffective and should be severed.

Dignity in Dying

The pressure group Dignity in Dying campaign to change the law on assisted dying for terminally ill, mentally competent adults. They make the interesting observation that this differs from seeking to legalise assisted dying for people who are not dying, which is known as assisted suicide.

Also, this differs from allowing doctors to end the lives of their patients, which is known as euthanasia.

They do not campaign to legalise assisted dying for people who do not have capacity to make the decision for themselves.

Current position

Some jurisdictions around the world have introduced assisted suicide and euthanasia laws. In the UK assisting a person to die is assisting suicide which is a criminal offence. In England & Wales this can amount to a term of imprisonment of up to 14 years.

In the case of Ninian v Findlay [2019] EWHC 297 Alex Ninian was diagnosed with Progressive Supra-nuclear Palsy – a progressive, incurable disease. In about August 2016, he decided to commit suicide at Dignitas – Sarah, his wife, tried to dissuade him but failed although she did persuade him to make his doctors aware of his decision. He was seen at home on 2 August 2017 by a medical team and later they confirmed in writing that they had explained the illegality of anyone supporting a person to go to Dignitas.

Alex needed Sarah’s help to deal with administrative matters regarding the visit to Dignitas and to accompany him because he could not manage the arrangements on his own. Two weeks after Alex’s death, Sarah instructed Kingsley Napley to support her in reporting the circumstances of Alex’s death to the police. She was interviewed by the police who reported the matter to the CPS for consideration – they decided not to prosecute.

According to Sir Keir Starmer, former Director of Public Prosecutions: “We have arrived at a position where compassionate, amateur assistance from nearest and dearest is accepted but professional medical assistance is not, unless someone has the means and physical assistance to get to Dignitas. That to my mind is an injustice that we have trapped within our current arrangement.”

The future

Robert Buckland QC, Minister for Justice, appreciates the sensitive nature of the issue and has called for evidence. He explained the drafting of a suitable piece of legislation would be difficult to make watertight. There was a debate on Thursday 23 January 2020 on the law on assisted dying and a parliamentary pack was prepared which you might find interesting.

Perhaps the BMA’s decision will provoke further debate on this subject. Let’s hope so.

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