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Should Physician Assisted Suicide be Legalised in the UK?
Euthanasia is the ending of life in a painless manner. The word is derived
from Greek ευθανασία (euthanathos) meaning good (eu) death (thanatos). It is, ‘a
deliberate intervention under-taken with the express intention of ending a life to
relieve intractable suffering’.1 Physician assisted suicide (PAS) is a form of
euthanasia which will be the main discussion of this paper. PAS requires the help of
a doctor to act as a facilitator in terminating a patient’s life by medical means. PAS
differs from euthanasia; the latter being an active act, where poison is injected
(murder) into the victim, in PAS (passive) the poison is provided to the victim and is
administered by himself.
Suicide was an offence at common law, a felony of self-murder before the
enactment of the Suicide Act (SA) 1961. In section 1, suicide as a crime is
‘abrogated’. In the past, anyone who attempted suicide and failed resulted in
prosecution and imprisonment. This was due to the religious and moral objection of
self murder, viewed as a sin by the Church for showing utmost disregard for the will
and authority of God; jeopardising their salvation for doing so.
Section 2(1) of the SA states:
‘A person who aids, abets, counsels or procures the suicide of another, or
attempt by another to commit suicide shall be liable on conviction on indictment to
imprisonment for a term not exceeding fourteen years’. 2
But note in s.2 (4), ‘no proceedings shall be instituted for an offence under
this section except by or with the consent of the [DPP].’3 Any prosecution is at the
discretion of the DPP.
The law moulds itself to the reigning social and cultural view of the present. If
suicide is accepted, perhaps PAS will be legalised in the near future. PAS is already
legal in Belgium, Netherlands, Switzerland and Oregon (USA).
It is unsurprising to find that the UK is unwilling to legalise PAS; as it is a fine
line between murder and suicide. The actus reus for murder is the killing of a person
under the King’s peace. The mens rea (MR) requires the intention to kill or to cause
grievous bodily harm. What distinguishes assisted suicide from murder is the MR of
the executor; however this element is difficult to identify in PAS, the MR is of
benevolence, that of executing the wishes of the patient with the non-existence of
malice in murder. Decriminalising assisted suicide is unlike decriminalising suicide.
By allowing a third party to facilitate the death of another would weaken society by
becoming heartless, indifferent and disrespectful to life.
Swiss Model
According to Swiss Law, ‘Whoever, from selfish motives, induces another to
commit suicide or assists him therein shall be punished, if the suicide was successful
or attempted, by confinement in a penitentiary for not more than five years or by
imprisonment’.4 If someone assists a suicide and acts unselfishly, there will be no
prosecution. Dignitas, the Swiss assisted dying group aids patients by using
volunteers (not motivated by selfish reasons) and taking a video recording to show
1 HL Paper 21-1,1994
2 SuicideAct 1961
3 ibid
4 S.115 Criminal Codeof Switzerland

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the Swiss police that everything was done according to the patient’s wishes.5 From
1998 – 2008, 107 Britons have travelled to Switzerland to end their lives.6
Act or Omission?
In Airdale NHS Trust v. Bland7, Scarman LJ indicated that statute law in cases
involving end of life decisions could lead to 'inflexibility, rigidity and obsolescence’.
This key case differentiates between an act and an omission. In this case, Bland who
was in a persistent vegetative state (PVS) was allowed to be taken off the life
support as the doctor could choose whether to continue with treatment (omission)
but if lethal drugs were administered (act) to bring a patient’s life to an end would be
unlawful.
The test of 'best interest' was introduced in this case; withdrawing life support
was justified legally and ethically as the continued treatment of the patient '[could] no
longer serve to maintain the combination of manifold characteristics which we call a
personality'8- per Mustill LJ.
This decision has been criticised for the lack of respect for sanctity of life, by
allowing the patient to die based on omission shows killing someone based on
quality or kind. The sanctity of life is not an absolute principle but should be balanced
against conflicting consideration by the Courts.
In addition to the above, Do Not Resuscitate (DNR) order is a lawful way of
killing someone by omission. This is quite controversial as it is motivated by the
same values as PAS, such as that the patient had requested it with a competent
mind and if resuscitation will lead to a worse quality of life.9
The enactment of the Human Rights Act 1998 in 2000 has given the
European Convention on Human Rights (ECHR) further effect in British Law. In the
case of legalisation of PAS, there are two contrasting Articles in the ECHR, Art.2 -
right to life and Art. 8- right to respect for private and family life. Art. 3 – prohibition of
torture, does come into light as well as unbearable suffering can result to torture, but
it is overshadowed by Art.2. The Pretty and Purdy are good illustrations on how
these article rights come into play in the PAS cases.
Pretty
The ambit of human rights was raised and discussed in the cases of Pretty v.
DPP10 and Pretty v. UK11 about the autonomy of one's life. Diane Pretty wanted to
end her life from the suffering of terminal motor neurone disease. She sought an
undertaking from the DPP that her husband would not be prosecuted if he assisted
her to commit suicide in accordance with her wishes.
The House of Lords (HL) held that the DPP had no power of giving an
assurance not to prosecute in respect of a crime to be committed in the future. It was
further held that any possible intrusion with Ms Pretty's Convention rights was
legitimate and proportionate. Importantly, the HL held that Art.2 of the ECHR did not
confer a right to die and that the state was not in breach of any positive obligation
under Art.3 or Art.8 in failing to decriminalise assisted suicide. The HL noted that
5 http://www.timesonline.co.uk/tol/news/uk/article4969423.ece
6 www.dignitas.ch
7 [[1993] 2 W.L.R. 316
8 ibid
9 http://www.bbc.co.uk/ethics/euthanasia/overview/dnr.shtml
10 [2002]1A.C.800
11 (2002 35E.H.R.R.1

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Art.8 was directed to the protection of personal autonomy while the person was alive,
but did not confer a right to decide when or how to die.
The HL and Strasbourg viewed that there had been no violation of Art.8.
Pretty went one step too far (in comparison to Purdy) by seeking an injunction
against her husband’s prosecution, hence her argument failed as she did not specify
how het Art.8 rights were engaged.
Daniel James
On September 12, 2008, 23 years old Daniel James died in Switzerland at the
Dignitas clinic, assisted by his parents, who had accompanied him there. He suffered
from tetraplegia due to a rugby accident. Doctors concluded that there would never
be any significant improvement in his range of movement.
In December 2008, the DPP, Keir Starmer Q.C., stated in that, while there
was sufficient evidence for a realistic prospect of conviction of his parents in relation
to the death by suicide of their son Daniel for the offence of aiding and abetting
Daniel's suicide, contrary to s.2(1) of the SA 1961, such a prosecution was not in the
public interest, and therefore no further action would be taken either against them or
against a family friend who assisted them.12 This public statement on the matter was
an exception, as no reasons had been previously offered in other cases of assisted
suicide that had been referred to the DPP. This exhibits the s.2(4) discretion that the
DPP has.
Purdy13
Ms Purdy is a sufferer of primary progressive multiple sclerosis and has been
wheelchair-bound since 2001. She wishes to have her life legally terminated in
Switzerland at the right time and may require the assistance of her husband to travel
owing to the nature of her condition and its deterioration but fears he may be
prosecuted for assisting her suicide under s.2(1) of the SA 1961.
She argued that the DPP had a duty to provide specific policy guidance in
deciding under s.2(4) whether it was in the public interest to bring a prosecution
under that section. This, she argued, should highlight circumstances whether a
prosecution would be considered appropriate to enable her to decide if her husband
would face prosecution; she would travel at an earlier stage to end her life without
his assistance. It was argued that the s.2(1) prohibition constituted an interference
with her right to respect for her private life under Art.8(1) and was not “in accordance
with the law” as required by Art.8(2).
Her Art.8(1) rights were engaged. The issue in this case was whether the way
in which the DPP could be expected to exercise his discretion under s.2(4) to
consent to a prosecution or not in such circumstances was formulated with sufficient
precision to enable to individual to regulate his conduct so as to avoid breaking the
law. HL concluded that the Act was insufficient to satisfy the Art.8(2) requirements of
accessibility and foreseeability in assessing how prosecutorial discretion was likely to
be exercised.
Ms Purdy, unlike Pretty was not seeking immunity for prosecution. Rather,
she required further information so that she can take an informed decision that
12 http://www.cps.gov.uk/news/articles/death_by_suicide_of_daniel_james/
13 [2009]3W.L.R.403

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affects her private life. If the risk of prosecution is sufficiently low, she can wait until
the very last moment before she makes her journey. If the risk is too high, she would
have to make her journey unaided to end her life before she would otherwise wish to
do so.
Hope LJ concluded, in departing from the HL decision in Pretty, that art.8 was
engaged in this case, noting that although s.2(1) satisfies the requirements of the
article, the applicant's argument was directed to s.2(4) and the question of the DPP's
consent. Although the code would normally provide sufficient guidance to
prosecutors, such cannot be said of cases where the offence in contemplation is
aiding or abetting the suicide of a person who is terminally ill or incurably disabled,
who wishes to travel to a country where assisted suicide is lawful and who, having
the capacity to take such a decision, does so freely and with a full understanding of
the consequences.
HL concluded that the DPP should be required to publish an offence-specific
policy identifying the facts and circumstances. They further concluded that the right
to respect for a person's private life under Art.8(1) related to the way in which she
lived, including the way in which she chose to pass the closing moments of her life.
As a result of Purdy, the DPP recently published guidelines stating that the
assistant in suicide would less likely be prosecuted if the patient had reached a
voluntary, clear settled and informed decision to commit suicide and the suspect was
wholly motivated by compassion and his acts were only of minor encouragement or
assistance.14
This just clarifies the law in s.2(4) of the SA, to remedy to breach of the Art.8
right. It does not legalise assisted suicide. The guideline does not give rise to
immunity against prosecution and prosecution will still be considered on a case by
case basis.
The HL also questioned whether assisting a person to travel to a foreign
country where assisted suicide is lawful for the purpose of their suicide would fall
within the influence of s.2(1) of the SA, as the law has no effect outside its
jurisdiction.
Sanctity of Life
The sanctity of life is the main foundation for opponents of PAS, derived from
the ‘religious doctrine, for example the claim that only God has the right to determine
when a person will die, or that committing suicide is a blasphemous rejection of
God’s gift of life’15. Life is a gift from God and only God can decide when it ends. But
society is becoming more and more secular; this theme has been entrenched in law
(Art.2 ECHR) by its importance but simultaneously allowing people an autonomous
decision. The importance of self-determination emphasises choice in the secular
version of the sanctity of life argument; in the religious version, choice of the
individual is insignificant. In today’s advanced non-religious society, autonomy plays
a major role in end of life decisions.
14 http://www.cps.gov.uk/news/press_releases/109_10/
15 Steinbock, p.236 Journal of Medical Ethics 2005:31

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Autonomy
Autonomy is central and paramount in biomedical ethics, and the law protects
this right. If we are free to make decisions how we live life; by inference we should
be free to make similar decisions about our deaths.
As individuals we attempt to be masters our destiny. Death is the grand finale
of our lives; it reflects how we want to be remembered. It is the end of a journey,
there is no wonder why we want to exert control over our final moments. The
decriminalisation of suicide has liberalised our views further. But, personal moral
options have public consequences. Each of us have a social network, and when we
decide to end our lives it affects the people around us.
This personal choice may be affected by the state of one’s mental health, in
other words; one should be mentally competent. If a patient is depressed his
decision to end his life will be affected by his emotional state. It is important that
doctors assess their patient’s state of mind before granting a request of a PAS and
that the patient had made an informed decision with consideration. Hence, we
should protect the patient from choosing death mistakenly, motivated by conditions
which can be mitigated (treatable depression).
‘The opponents of aid-in-dying argue that untreated depression is almost
always the motivation behind a terminally ill persons’ request to die’.16 Depression is
a factor that motivates suicide, but all else made equal, we should also respect the
patient’s decision.
Autonomy is a strong point in favour of PAS but may not be sufficient to
persuade opponents that legalisation is the best way forward. It is difficult to
reconcile with this point. “Why would a chosen death be less ethical than one
brought without our consent, [e.g.] by way of withholding or withdrawing treatment?
And if a chosen death is wrong, how can we explain the law’s absolute prohibition on
continuing life-sustaining treatment in the face of competent refusal? Moreover, even
if assisted dying is in some way ‘wrong’ why is it worse than (lawful) killing in a war
which might merely be waged in pursuit of an unacceptable or disputed political
agenda?”17
This proves the moral compass show different bearings under different
circumstances and consciousness of the patient. This highlights that autonomy may
not be given the gravity it deserves in the eyes of peace and a life may be worth less
when the patient is in a coma or lacks a ‘personality’18. This further reinforces the
sanctity of life argument; life is more valuable under the Queen’s peace and when
autonomy can be exercised.
Relief of suffering
Pain management is important for those in pain; many people would prefer to
live a shorter life with quality to a longer life in agony. Opponents would protect the
end of one’s life under all circumstances even if there is extreme suffering; using
terminal sedation where a patient is put into a coma permanently and waits for his
death. Opponents will argue that this procedure will solve the need for PAS, but this
is not the case.
16 Smith and Pollack p.551-2
17 McLean p.42-3
18 [[1993] 2 W.L.R. 316

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‘Patients who have chosen the option of [PAS] have been motivated primarily
by loss of autonomy, loss of control of their bodily functions, decreased ability to
enjoy life, and tiredness of dying. Unrelieved pain has never been the main reason,
and clinical depression has not seemed to confound the decision.’19 Palliative care is
a solution, but it does not satisfy every patient’s needs. It only is a partial remedy.
On another level, liberation from their suffering may in fact worsen the
situation by devaluing disability. If PAS was legalised, overtime, people with a
terminal illness or even disability will be pressured into taking their own life. This is
will be a negative step; the core purpose of ECHR is to forbid Nazi Germany
(eliminating the vulnerable and weak) from ever happening again. Bear in mind that
the sick, old and disabled are an economic burden to the healthcare system. The
right to die will soon become the duty to die. Society may not disown this social
group now but with social upheaval and the increasing population coupled with the
lack of resources, things could take a turn for the worse.
The slippery slope
The most commonly used argument against PAS is that, if legalised would
lead to the deterioration of morals where killing the ill will be regarded as acceptable.
The Report of the Select Committee on Medical Ethics gives credibility to this view,
claiming that, ‘… to create an exception to the general prohibition of intentional killing
would inevitably open the way to its further erosion whether by design, by
inadvertence, or by the human tendency to test the limits of any regulation’.20
The right to die could easily slip down the slope and become a duty to die for
public and/or family benefit. As being sick and ill can be a burden to our loved ones.
We should bear in mind that the law is powerful and it can be misused. Family
members could potentially coerce the ill with a competent mind to opt for PAS.
Legalisation will send an unwelcoming signal to the sick, elderly, disabled and the
dying. We will lose touch with the value of life.
This however, is based purely on speculation and we do not have evidence
necessary to suggest that this a real fear, not yet. Although McLean pointed out that
‘just such a slope has emerged in the Netherlands, [citing] evidence [of] apparent
weakening of controls, resulting in endorsement of assisted dying for vulnerable
young children, or a purported increase in unrequested death, as clear proof that the
slippery slope is a reality’.21
The doctor/patient relationship
There is concern that the dynamics of a doctor/patient relationship will
change, ‘doctors should be kept from killing because of all professions they are the
most able and the most likely’.22 This relationship is one of the most important in our
lives, especially at the point when we are most vulnerable. This relationship will be in
jeopardy, should PAS be legalised.
‘These procedures will of necessity become a therapeutic option; that over
time there will be drift from regarding the death of a patient as an unavoidable
necessity to regarding it as a morally acceptable form of therapy; and that pressure
19 Quill p.2030
20 HL Paper 21-1,1994, p.49,para.238
21 McLean p.51
22 Johnston p.111

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will grow as a result for euthanasia to be applied more widely – for example to
incompetent or minors – as a morally acceptable form of medical therapy which is
considered to be in the patient’s best interest’. 23 Although this view is bleak, doctors
will maintain the status quo and not overstep boundaries.
Commentary
There are areas of law which have not been covered by the statutes, with
case law trying to define these parameters. There is a growing gap between the
archaic SA and the prevailing views of today’s society. With the advancement of
medical sciences since 1961 and the world’s older population from the baby boomer
era increasing by 800,000 a month.24 There is a cry for a law reform, but Parliament
has been unwilling to do so with Lord Joffe’s Assisted Dying for the Terminally Ill Bill
being met with strong resistance.
Conversely, the recent Purdy case has given this issue a new breath of life.
Ultimately, this battle is between the sanctity of life (Art.2) against autonomy (Art.8).
The slippery slope argument which suggests legalisation will weaken the value we
place on life; it is unarguable it is quite persuasive, but without proof. In the
Netherlands, further legal change has taken place as a direct consequence of
legalisation.25 If PAS were to be legalised in the UK, tight controls would have to be
put in place to ensure society abuse this power.
The law contradicts itself as killing someone passively (withdrawal of
treatment) based on their request (DNR) or on the judgement of third parties (Bland)
is lawful. Killing by means of an act, by administering medicine is unlawful. ‘When we
parse the usual arguments for a moral difference between treatment withdrawal and
assisted suicide, we will see that none of the arguments really justify the law’s
rejection of a right to assisted suicide’.26
The distinction between an act and an omission is a rudimentary flaw in the
legal system; in Bland Mustill LJ and Browne-Wilkinson LJ were dubious about this
division. It is not clear cut as following this blurred outlook, it allows some deaths but
not others. The law should be fair, objective and all encompassing but by allowing
death by omission but not by an act, perhaps the courts unconsciously and intuitively
emphasised the pious view of the sanctity of life but contradicted itself by focusing on
the best interest of the patient in Bland.
Conclusion
It is iminent that a change in legislation is due as case law is only limited and
cannot modify an outmoded act which only the Parliament as authority of. There is
increasing public pressure (indicated by the survey) and Purdy has generated new
interest in this area. Legalisation of PAS will bridge the gap.
It is understandable why the Parliament have been reluctant to amend the
law as the consequences will be severe if PAS were legalised. It may not be
immediate, but cultural and societal values mould itself to the law and form a
23 HL Paper 86-1,2005, p.40, para.102
24 http://www.nia.nih.gov/NewsAndEvents/PressReleases/PR20011213Worlds.htm
25 Griffith et al,pg.521
26 Orentlicher,p.20

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symbiotic relationship creating an identity. This identity will be destroyed if too much
is done in such a short time. PAS is a radical step forward.
Life is too precious yet fragile to legislate upon. Although there has been
legislation on PAS by the Dutch, Swiss and Belgians; these are small countries
hence public opinion can be heard more effectively. The UK is moving towards that
direction but rather slowly due to a larger populace. These countries possibly
influence the UK, with suicide tourism becoming increasingly popular and as a
means to challenge the legislature.
Europeans including the British are moving away from a ‘materialistic value
orientation’ which emphasises on material security and law and order to a ‘post-
materialistic value orientation’ focusing on personal freedom, personal development
and self-esteem above material security.27 Divorce, suicide, abortion and
homosexuality reflect an underlying value in ‘bodily self-determination’28, UK as a
society has become more liberal and less paternalistic over the years. This suggests
that autonomy is becoming significantly important in recent times, empowering the
individual with his own voice.
The increasing secularism of society proves that the sanctity of life argument
is fading away. Although, this value is deeply ingrained in our subconscious and we
intuitively reject the idea of PAS. The need to prioritise the freedom of the individual
unless adverse consequences can be directed towards its execution, it appears that
opponents of PAS have failed to form a strong argument for their cause.
There is a gap in the law and the only way forward is legislation by
Parliament. ‘[T]he state should … respect and enforce morality which maximises
freedom, assuming the absence of harm to others’.29 The Swiss model on PAS is a
good foundation to build upon as one should be motivated by unselfish motives to
liberate the soul trapped in a debilitating, deteriorating body. The patient is free to
decide how to spend his last days without needing to defend his choice in his limited
moments of peace.
27 Griffiths et al,p.523
28 ibid
29 McLean p.202