Potential legislative change
At the same time as these cases have been working their way through the legal system, there have been repeated legislative attempts to change the law on assisted suicide. The Assisted Dying for the Terminally Ill Bill 2005 was blocked in the House of Lords in 2006. That Bill would have included proposals which allowed doctors to provide the means for terminally ill patients to end their own lives.
This was followed by Lord Falconer’s proposed amendment to the Coroners and Justice Bill which attempted to remove the threat of prosecution from those who go abroad to help an assisted suicide. The amendment called for the law to be waived if two doctors deemed the person in question terminally ill and competent to make the decision to end their life. It was described by some peers as ill-defined, unsound and unnecessary and was defeated in the House of Lords on 7 July 2009 by 194 votes to 141. It resulted in considerable media interest. The strongly polarised views in the country were reflected in the debate in the House itself. For example, Baroness Campbell contended that sanctioning assisted suicide would make doctors and those helping disabled people think that death was what was wanted by disabled people:
‘the very people who need every encouragement to live and not to succumb to society’s prevalent view that our situation is so tragic, so burdensome, so insufferable that surely we must want to die.’
Baroness Warnock responded:
‘I think that there is confusion if we run the disabled as a class of people, members of society, into another class of people, the terminally ill, although they may overlap. There are two different concepts and we should not bring them together under the general heading of the vulnerable about whom we hear, in my experience, all too much. Being vulnerable is a judgment made by somebody about another person; in my experience, it is not a judgment that one ever makes about oneself. To be classiﬁed as vulnerable is to be regarded from a great height by lawyers or doctors, above all, or nurses. They deem one to be vulnerable. There is a very small category of people, of whom we have heard today, to which belong some of those people who have gone to Switzerland to commit suicide, who do not want to be categorised as vulnerable. They therefore make their own decision.’
Further she dealt with the concern about selfish relations preying on the disabled or ill stating:
‘Why should people … put up with [the current state of the law] for the sake of other people who are in a quite different position, who may be disabled or under pressure from their nasty relations? … We should go back to what this amendment is about and not fear the slippery slope. We should aim for the positive result of clarifying the law as it now stands.’
A last ditch attempt by Lord Alderdice to amend the Coroners and Justice Bill in similar fashion to that of Lord Falconer’s amendment failed. He withdrew it in the face of stiff opposition. Baroness O’ Cathain argued that more help for the terminally ill should be provided by greater support for the hospice movement and that:
‘We must work towards that, but, in the meantime, please let us stop condoning, exulting and encouraging assisted suicide.’
Prior to Lord Falconer’s proposed legislative changes, the Report of the House of Lords’ Select Committee on Medical Ethics had concluded that there were ‘no circumstances in which assisted suicide should be permitted’. The report was accepted by the Government who commented that a change in the law to allow assisted suicide ‘would be open to abuse and put the lives of the weak and vulnerable at risk’. There were repeated attempts to bring the issue back before Parliament in the 2015 – 17 Parliament. Building on the momentum which flowed from the Supreme Court’s decision in the Nicklinson litigation, 3 an amendment to Lord Falconer’s Assisted Dying Bill was tabled by Lord Pannick (with the support of Lord Falconer) in November 2014, allowing a safeguard of judicial oversight for those who sought assistance to end their own lives. In the 2015/16 Parliament, Lord Falconer’s bill was re-tabled by Rob Marris MP. On 11 September 2015, the Assisted Dying (No 2) Bill was given its second reading in the House of Commons. After lengthy debate, 118 MPs voted in favour of the bill and 330 voted against. Lord Falconer then introduced an Assisted Dying Bill in the House of Lords in substantially similar terms which was not given time for debate. Lord Hayward sought to resurrect the bill in 2016 but Parliament was dissolved before its second reading.
Lord Falconer’s Assisted Dying Bill had its first reading in the House of Lords on 28 January 2020. The bill in outline proposed a scheme whereby:
(a) A person who is terminally ill may request and lawfully be provided with assistance to take their own life, subject to the consent of the High Court.
(b) The High Court must be satisfied that the person has a voluntary, clear, settled and informed wish to end their life.
(c) The person must have made a declaration to that effect, witnessed and also countersigned by two doctors.
(d) ‘Terminally ill’ means that the person has been diagnosed as having an inevitably progressive condition that cannot be reversed by treatment, and as a consequence is reasonably expected to die within six months.
The bill would only have applied to adults. It would not have legalised health tourism: the person had to be ordinarily resident in England and Wales for at least a year.
The bill went far beyond simply formally decriminalising assistance to go abroad for suicide. It provided that the person’s doctor may in this jurisdiction prescribe them lethal drugs in order to end their life, prepare the medicine for their self-administration, and assist them to ingest or self-administer it. The final act of administering the medicine had to remain that of the person who wishes to end their lives.
The bill would also have created criminal offences of making or knowingly using a false instrument purporting to be a declaration – which if committed with the intention of causing another’s death, is punishable by life imprisonment – or of wilfully concealing or destroying such a declaration.
It is important to note that while public, press and Parliamentary debate about reform of assisted dying laws often focusses on case studies much like those in the appellate cases above, the terms of Lord Falconer’s bill would not have in fact provided any of Diane Pretty, Debbie Purdy or Tony Nicklinson with assistance to end their lives, and may not have assisted Neil Conway, depending on whether the medical evidence about his life expectancy said he was expected to die in six months. There is currently no proposal before Parliament to legalise assisted suicide where people are afflicted by chronic and painful conditions which are not in fact necessarily terminal, such as multiple sclerosis.
Lord Falconer’s bill permitted doctors not to participate in anything authorised by it to which they have a ‘conscientious objection’. It should be obvious that, aside from the ethics of assisted dying itself, doctors being called upon to project life expectancy in the knowledge it will make the difference to the ability to apply to court for permission to die may be put in an exceptionally difficult position. The irony also is that advances in medical technology and care which prolong life expectancy for the chronically or terminally ill may make it harder and harder for a test based on shortness of life expectancy to be satisfied.