Analysing Restrictive and Liberal Approaches towards Assisted Suicide and Euthanasia By Prema S Matker A Thesis Submitted for the Degree of MPhil (Laws) Queen Mary University of London 2010 1 Abstract The ‘end of life’ issue in relation to assisted suicide and euthanasia is one of our prime concerns and a most widely discussed phenomenon not only in academic and official literature, but also in day-to-day life. Some people, who are terminally ill or suffer from degenerative diseases, choose to end their life while they are competent to do so especially when the hope of recovery fades, suffering escalates and the quality of life diminishes. My thesis examines the practice of assisted suicide and euthanasia in: (a) England and Wales where the practice has been strictly prohibited, but is now in a process of liberalisation. The recent guidelines issued by the Director of the public prosecutions pertaining to section 2 (4) of the Suicide Act 19611, may permit people assisting suicide to disobey the law on assisted suicide.2 (b) The Netherlands, the State of Oregon in the U.S. and Switzerland where the practice is already liberalised under special circumstances. In conclusion, the thesis will discuss liberal regimes to observe which regime would best suit England and Wales position. 1 S. 2 (4) provide: “[N]o proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions.” See ‘The Suicide Act 1961’. http://www.statutelaw.gov.uk 2 This view was put forth by Prof. David Schiff and Prof. Richard Nobles in the conference held on ‘Purdy and Director of the public prosecutions’ Guidelines’ on 6th November 2009. 2 Table of Contents Title of the Thesis ……………………………………………………………..... 1 Abstract ................................................................................................................. 2 Table of Contents ………………………………………………………………. 3 Acknowledgements ...………………………………………………………….. 5 Introduction …………………………………………………………………….. 6 Chapter 1 The Law of England and Wales on Assisted Suicide ……………………….. 10 1.1. The Statutory Law on Assisted Suicide: The Suicide Act 1961 ..……... 11 a) Outline of the Act’s Provisions .………………………………………. 11 b) Negative and Positive Right to Die: The Limited Effect of Section 1 in the Light of Section 2 of the Act .…………………………………….. 18 c) The Role of the DPP under Section 2 (4) of the Act ....………………. 27 i) A Possible Rational for Inclusion of Subsection (4) of the Act …... 27 ii) The Practice of the DPP .………………………………………….. 36 iii) Immunity .……………………………………………………......... 38 iv) The Moves towards Greater Clarity through Guidance …………... 43 v) Likely Future Developments arising from the case of Debbie Purdy …………………………………………………………………….. 56 Chapter 2 The Law of England and Wales on Euthanasia ……………………………. 64 2.1. The Law on Euthanasia ……………………………………………......... 64 a) Acts that Kill ...……………………………………………………..........66 i) Double Effect Doctrine ………………………………………......... 66 ii) The Doctrine of Double Effect and the case of Dr Bodkin Adams and the case of Dr David Moor ..………………………………………. 73 iii) The Position of doctors who cannot claim Double Effect ………… 78 iv) Exploring the difficulties faced by laypersons in relying on the Double Effect Doctrine . .………………………………………… 83 3 v) Exploring the Doctrine of Double Effect and the Criminal Law …………………………………………………………..…………. 89 b) Omissions that Kill .………………………………………………… ….94 i) Understanding the Duties which make Omissions into Acts ……… 94 ii) The Ability of doctors to cancel those Duties …………………….. 96 iii) Examining the difficulties faced by laypersons in cancelling their Duties to provide care ………………………………………....... 104 iv) Examining the Implications that can be drawn from the Acts that Kill and the Omissions that Kill: Should doctors be permitted to kill either by act or by omission in the best interest of the patient? ………... 107 v) Conclusion …………………………………………………….... 110 Chapter 3 Exploring the Legal and Extra-Legal Regimes adopted by the Netherlands, the State of Oregon and Switzerland in relation to Assisted Suicide and Euthanasia ……………………………………………………………..…….. 112 3.1 The Legal Structure of the Regime of the Netherlands on Assisted Suicide and Euthanasia …………………………………………………………….... 113 a) The Extra-Legal Procedure in cases of the Termination of Life on Request and Assisted Suicide ………………………………………………………............. 122 3.2 The Legal Structure of the Regime of the State of Oregon applied in cases of Physician-assisted Suicide ………………………………………………... 131 a) The Extra-Legal Procedure to be followed in compliance with the Death with Dignity Act ………………………………………………………………….. 134 3.3 The Law on Assisted Suicide in Switzerland …………………………... 140 a) The Extra-Legal Procedure: Switzerland and ‘Right to Die’ Societies ……..143 Conclusion ………………………………………………………………........ 152 Appendix A …………………………………………………………………... 158 Bibliography …………………………………………………………………. 169 4 Acknowledgements I am grateful to my supervisors, Professor William Wilson and Professor Richard Nobles for their guidance, support and fruitful comments on drafts of my thesis. I also wish to thank the School of Law, Queen Mary University of London, for providing me financial support (Graduate Teaching Award and Department of Law Award) to complete my studies. My greatest depth is to my mother and rest of my family members who provided me constant moral support to continue my research. The thesis is dedicated to them. I also offer sincere thanks to my colleagues and friends who always encouraged me to work hard. 5 Introduction Issues surrounding ‘end of life’ are widely discussed at today, not only in the academic and official literature, but also in day-to-day newspapers, television programmes and general conversation. The most controversial issues concern the areas of assisted suicide and euthanasia. These issues arose with the Greeks and eventually gained prominence in the medical context. Medical and scientific progress has lead to a change in the place and the time of death.3 For example, prior to the 20th century people generally died at home.4 It was rare for people to have any medical intervention in the last moments of their lives. Today many people die in hospitals or in hospices under medical supervision.5 As a result, there is now a progressive movement that consists of dying patients, as well as their families and physicians. This movement poses the question of whether the artificial extension of the lives of people who are dying is really in their best interest in all cases.6 For instance, ‘right to die’ societies and other such organisations have begun to lobby for change in the law of assisted suicide. These ‘right to die’ societies and organisations argue that the patient, or the family representative, should have control over the dying process. They aim to ensure patient autonomy in the last moments of his or her life and further to this, they are in favour of allowing the patient to choose the time and the place of his or her death. In other words, as argued by Battin,7 death has formed a part of the conception of personal autonomy and self-determination. 3 Ziegler S. J. (2009) ‘Collaborated Death: An Exploration of the Swiss Model of Assisted Suicide for its Potential to Enhance Oversight and Demedicalize the Dying Process’. Journal of Law, Medicine and Ethics, Vol. 37, p. 318. 4 For example, owing either to old age or due to illness or natural calamity. 5 Ziegler S. J. (2009) ‘Collaborated Death: An Exploration of the Swiss Model of Assisted Suicide for its Potential to Enhance Oversight and Demedicalize the Dying Process’. Journal of Law, Medicine and Ethics, Vol. 37, p. 318. 6 Ibid. 7 Battin M.P. (2008) ‘Safe, Legal Rare? Physician-Assisted Suicide and Cultural Change in the Future’ in Birnbacher Dieter and Dahl Edgar (eds) Giving Death a Helping Hand: Physician- Assisted Suicide, Terminal Sedation and Public Policy. An International Perspective. The Netherlands: Springer, Vol. 36. 6 This thesis examines the law of England and Wales on assisted suicide and euthanasia. As a comparison, the thesis examines the legal and extra-legal regimes of three different jurisdictions where assisted suicide or euthanasia, or both practices, are legalised or permitted officially. These jurisdictions are the Netherlands, the State of Oregon in the U.S. and finally, Switzerland. In the Netherlands, both euthanasia and assisted suicide are permitted under special provisions. In the State of Oregon, only physician-assisted suicide (PAS) is permitted. In Switzerland, assisted suicide is legal as long as the motive of the assistant is altruistic.8 The main difference between Switzerland and the other two jurisdictions is that in Switzerland anybody either a physician or non-physician may assist in an act of suicide. On the other hand, in the Netherlands and the State of Oregon only physicians can provide assistance. In Switzerland and the Netherlands in particular, these practices have long been recognised and are now deeply embedded in the culture of these countries. In fact, Switzerland has started to cater for foreigners with this service, resulting in a phenomenon known as ‘suicide tourism’. People from other countries, especially Germany, France, Austria and England, travel to Switzerland in order to die.9 As of now, it is the only place in Europe for ‘death refugees’ i.e. travellers who have the aim of ending their lives in a humane and dignified manner through the assistance of ‘right to die’ societies such as Dignitas.10 8 It is relevant