Comment: prospective approval of assisted dying in the Dutch context

As I mentioned earlier in relation to Sir Terry Pratchett’s lecture, the Dutch have developed a prospective network of euthanasia consultants: the ‘Support and Consultation on Euthanasia in the Netherlands’ (SCEN) initiative. John Griffiths, Heleen Weyers and Maurice Adams discuss the Dutch move towards prospective control of euthanasia and assisted suicide in their book, Euthanasia and the Law in Europe (Hart, 2008, pp.139-140):

SCEN seems to be developing in the direction of before-the-fact control of euthanasia: reviewing the doctor’s proposed course of conduct before he carries it out. There are some obvious things to be said for this, after-the-fact control always coming, if euthanasia turns out to have been inappropriate in the circumstances, ‘too late’. From the beginning of the Dutch euthanasia debate, the idea of before-the-fact control (special committees, a special division of the courts, etc) has been more or less continuously present as a subterranean theme which, whenever it comes to the surface, has been just as regularly rejected by doctors and by the Government. A variety of reasons have been given for exclusive reliance on after-the-fact control: the traditional resistance of the medical profession to any sort of shared decision-making or dilution of the final responsibility of the individual doctor, practical problems of organising a system of before-the-fact control, the impossibility of anyone giving approval to behaviour that was (until 2002) ‘illegal’, the undesirability of bureaucratising the process, ethical objections to involving the state in decisions to administer euthanasia, and so forth.

How do these reasons translate to England and Wales, if at all? One factor which is always important in the context of assisted dying is the identity of the person who is assisting the individual who has requested euthanasia or assisted suicide. The Dutch regime requires that this is a physician. The defence in the Criminal Code, Art. 293(2), inserted by the Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2001, s.20A, applies only to physicians. The Dutch example shows that a system involving physicians, at least two of whom are involved in each case, can function well without formal prospective approval of a tribunal or a court.

However, as a result of the DPP’s interim guidance on assisted suicide prosecutions, it is likely at present that most persons who assist a suicide in England and Wales will be friends or family of the person assisted. The advantages of prospective approval, including external scrutiny of the quality of the assisted person’s request and the nature of his or her condition and experience, as well as the reassurance to the assister that the case meets the criteria for non-prosecution might well outweigh the disadvantages, including the burden on all involved and practical problems like timing for those with terminal conditions.

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