Course: Summer school – Doctors and lawyers dealing with death and dying

 

Medical, legal and ethical challenges in end-of-life decision making. 3-7 July 2017

Preliminary Program Summer School

The Erasmus School of Law in collaboration with the department of Public Health of the Erasmus Medical Center (Erasmus MC) will host the international summer school ‘’Doctors and lawyers dealing with death and dying’’ in the first week of July 2017 in Rotterdam.

Many countries are currently engaged in a societal debate about the question whether to decriminalize or legalize some form of assistance in dying. In this multi-disciplinary one-week course, students will be introduced to the Dutch situation regarding Termination of Life on Request and Assisted Suicide (Review Procedures) Act of 2002, the practice of medical decision making at the end of life, and current ethical, legal and medical challenges in comparative perspective with other European countries.

The aim of this course is to expand the knowledge of participants on medical, legal, and ethical issues at the end of life, and to reflect on these issues based on the facts and figures. The summer school is part of a broader Research Excellence Initiative (REI) ‘’Doctors and lawyers dealing with death and dying’’.

 

Conference: ‘A Right to Die?’ – Socio-legal perspectives at Keele University

18th July 2017

School of Law, Keele University

Register here

Programme

10.00 Registration & Coffee

10.30 Welcome from Professor Alison Brammer, Head of Keele Law School

10:35 Introduction by Chair, Dr Sue Westwood

10.40 Keynote speaker: Professor Penney Lewis, Dickson Poon School of Law, King’s College London (‘Assisted Dying and Legal Change’)

11.10 Q&A

11.20 – 12.30 Panel 1: Assisted Dying & Euthanasia – Current Debates. Chair: Dr Anthony Wrigley

Speaker (1) Dr Iain Brassington, University of Manchester (‘Overview of Debates’)

Speaker (2) Professor Richard Huxtable, University of Bristol (‘Euthanasia, Ethics and the Law’)

Speaker (3) Professor Alison Brammer, Keele University (‘Safeguarding Issues’)

12.20 Q&A

12.30 – 1.15 Lunch

1.15 – 2.40 Panel 2: Assisted Dying & Euthanasia – Views. Chair: Professor Marie-Andre Jacob

Speaker (1) Professor Clare Wilkinson, Bangor University (‘Why do we want the right to die?)

Speaker (2) Dr Glenys Caswell, University of Nottingham (‘Agency, death and dying in the UK’)

Speaker (3) Davina Hehir, Director of Legal Strategy and Policy, Dignity in Dying (‘Choice, control and access to services at the end of life: Advocating for the right to die’)

2.30 Q&A

2.40 – 3.00 Tea Break

3.00 – 4.10 Panel 3: Assisted Dying & Euthanasia – Subjectivities Chair: Dr Tsachi Keren-Perez

Speaker (1) Professor Celia Kitzinger, University of York (‘Court applications for withdrawal of artificial nutrition and hydration from patients in a permanent vegetative state: Family experiences’)

Speaker (2) Dr Sue Westwood, Keele University (‘Older lesbians, gay men and the “right to die” debate’)

Speaker (3) Professor Sue Read & Dr Sotirios Santatzoglou, Keele University (‘Exploring hospice care from the perspectives of people living with multiple sclerosis: An exploratory case study’)

4.00 Q&A

4.10 – 4.15 Closing comments (Chair)

4.15 Close

Comment: Almost two years after his death, has Tony Nicklinson won?

Today’s decision by the Supreme Court (or see the press summary) in the case begun by Tony Nicklinson dismissed the appeal from last year’s Court of Appeal decision brought by his widow Jane and Paul Lamb. The appellants were challenging the criminal prohibition on assisting a suicide in s.2 of the Suicide Act 1961 on the ground that it is inconsistent with their right to respect for their private and family life under Article 8 of the European Convention on Human Rights. All parties were in agreement that end-of-life decisions including decisions to seek assistance with suicide are covered by Article 8(1) (consistent with the decision of the European Court of Human Rights in Pretty v. UK, in which the Strasbourg Court found that Dianne Pretty’s Article 8(1) right to respect for her private and family life was engaged, and with the subsequent decision of the House of Lords in Purdy v. DPP). A key issue was therefore whether that engagement could be justified under Article 8(2)

as … in accordance with the law and … necessary in a democratic society … for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others

The government provided the same justification as used in the Pretty case (Pretty v UK [76]):

to safeguard life by protecting the weak and vulnerable and especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life.

Five of the nine justices found that the Supreme Court has the authority to declare s.2 incompatible with Article 8. Two of them (Lady Hale and Lord Kerr) would have made such a declaration in this case; the remaining three decided not to make such a declaration at this point in time, because:

1. Parliament should be given an opportunity to consider the position first as it is the ‘preferable forum’ for resolving this issue ([190]). Interestingly, though, this group of three judges state that Parliament’s decision will not necessarily determine whether s.2 is incompatible with Article 8 ([76], [191]). Thus if Parliament considers the matter and decides not to change the status quo, the possibility exists that a majority of the Supreme Court in a subsequent case will decide that s.2 is incompatible with Article 8, possibly on the basis of a future argument that a system of prospective judicial approval of individual cases of assisted suicide would better protect the vulnerable than the status quo ([108], [123]-[125]). According to Lord Neuberger ([108]),

[a] system whereby a judge or other independent assessor is satisfied in advance that someone has a voluntary, clear, settled, and informed wish to die and for his suicide then to be organised in an open and professional way, would, at least in my current view, provide greater and more satisfactory protection for the weak and vulnerable, than a system which involves a lawyer from the DPP’s office inquiring, after the event, whether the person who had killed himself had such a wish, and also to investigate the actions and motives of any assister, who would, by definition, be emotionally involved and scarcely able to take, or even to have taken, an objective view.

(A tribunal-based prospective approval system was proposed by Terry Pratchett in 2010. Roger Brownsword, Genevra Richardson and I also explored the viability of such a proposal in a submission to the Commission on Assisted Dying in 2011.)

It is worth noting though that Lord Neuberger (at [118]) also considered that the opposite possibility remains open, namely that no declaration of incompatibility would be made by a later court:

it may transpire that, even if Parliament did not amend section 2, there should still be no declaration of incompatibility: that is a matter which can only be decided if and when another application is brought for such a declaration.

2. Another reason for the court’s refusal to reach a conclusion on incompatibility yet is that the factual record in this case was problematic. Initially, the claimant Tony Nicklinson had argued for a defence of necessity to murder which would permit voluntary active euthanasia in limited circumstances. By the time of the Supreme Court hearing, the arguments focussed only on potential incompatibility of the offence of assisting or encouraging a suicide, which a severely disabled claimant in the position of Tony Nicklinson or his successor Paul Lamb could commit using a machine triggered, for example, by blinking ([126], [128], [92]-[95], [110], [151]). The three judges who postponed a decision on incompatibility decided that there was insufficient evidence in the record on this issue and also on the issue of the risks to the weak and vulnerable posed by permitting assisted suicide in some cases ([119]-[121], [128], [175]-[177]).

Lord Falconer’s Assisted Dying Bill will be debated in the House of Lords on 18 July. The Bill, though, would not be applicable to Paul Lamb who is not terminally ill (nor would it have been applicable to Tony Nicklinson for the same reason). The challenge to Parliament posed by the majority of the Supreme Court is clear: could a system of prospective approval better protect those who are vulnerable from harm while vindicating the ‘genuine exercise of autonomy’ (Lady Hale in Purdy v DPP at [65])?

Radio: When assisted death is legal

BBC World Service

Episode 1: Tuesday 19 February 2013 at 9.05, 13.05, 16.05, 20.05, Wednesday 20 February at 02.05, Saturday 23 February at 19.05, Sunday 24 February at 13.05, also available via the iPlayer

Episode 2: Wednesday 20 February 2013 at 9.05, 13.05, 16.05, 20.05, Thursday 21 February at 02.05, Sunday 24 February at 22.05, also available via the iPlayer after first broadcast

From the programme’s website: “The debate over assisted suicide and euthanasia is a passionate one. But as the discussions continue to rage around the world, there are a few places where assisted death is already legal. Switzerland, Belgium, Luxembourg, the Netherlands, and Oregon and Washington States in the US all have laws permitting assisted suicide or euthanasia in some form. In this two-part documentary for the BBC World Service, actress and broadcaster Liz Carr goes on a personal journey to all six places to see how it works. As a long-standing campaigner against assisted suicide legislation in the UK, she wants to find out what assisted death means in practice – and whether she’s right to be concerned. In part one, Carr travels to Switzerland, where she visits the rooms where volunteers help people die, and finds out why the Swiss law on assisted suicide goes back to the 19th Century. In Belgium she meets a doctor who admits to performing euthanasia before it was legal; and in Luxembourg, she finds out why the law on assisted suicide nearly caused a constitutional crisis. Carr questions whether it is possible to balance the right of the individual who wants to die with the responsibility of society to protect those who don’t. … In part two, Carr visits the Netherlands, where she meets the group behind the ‘mobile euthanasia units’ which hit the headlines last year, and asks whether a law on voluntary life-ending procedures might open the door to involuntary ones. She also visits Oregon and Washington State in the US, where she finds out who is most likely to use the Death with Dignity law, and hears about the cancer patient whose health-care plan refused to pay for chemotherapy – but offered assisted suicide instead.”

In the first episode, Carr states that in Belgium, only euthanasia (termination of life on request) is lawful, and that assisted suicide is therefore not practised (lawfully). It is correct that in Belgium, the Euthanasia Act 2002 allows only physicians to perform euthanasia (understood in the Netherlands as termination of life on request). Assisted suicide is not explicitly covered, but Belgium’s oversight body, the Federal Control and Evaluation Commission (Commission Féderale de Contrôle et Évaluation or CFCE), accepted early on that cases of assisted suicide fall under the law (Commission fédérale de contrôle et d’évaluation de l’euthanasie, Premier rapport aux chambres legislatives (2002–2003), 2004, pp 13–14). Cases of assisted suicide are now reported to the CFCE and reviewed in the same way as cases of termination of life on request. In 2010-2011, eight such cases were reported (out of a total of 2086 cases) (Commission fédérale de contrôle et d’évaluation de l’euthanasie, Cinquième rapport aux chambres legislatives (2010–2011), 2012, p 17).

Conference: Assisted Dying

A study day on Assisted Dying

The Society for Ethics and Law in Medicine

Friday 30 November 2012 at the Royal College of Anaesthetists

9:30 – 10:00 Coffee and Registration

10:00 – 10:10 Welcome and Introduction

Professor Peter Hutton

10:10 – 10:55 UK Law: the lawyer’s perspective

Zoe Johnson QC

10:55 – 11:45 UK Law: How it affects clinical practice

10.55 – 11.20: Dr Dave Spooner (Cancer patients)

11.20 – 11.45: Dr Steve Sturman (Neurological conditions)

11:45– 12.30  UK Law: How does it differ from Europe?

Professor Penney Lewis

12.30 – 12.50 Panel questions & discussion

13:00– 14:00 Lunch

14:00 – 14:45  A view from the public

Irene Dalton

14:45 – 15:30 A retrospective on Tony Bland

Anthony Lester QC

15:30 – 15:45 Coffee

15:45 – 16:30 Debate: This house believes that UK law in relation to assisted dying is indefensible

For: Dr Peter Nightingale

Against: Dr Tom Clutton Brock

16:30– 16:35 Closing remarks

Professor Peter Hutton

Download an application form or contact Professor Peter Hutton ‎via email: peterhutton007 [at] me.com

Comment on Tony Nicklinson and Martin’s cases in IBTimes

I wrote a short comment for the International Business Times on the Nicklinson and Martin cases.

It argues that ‘Parliament, in particular the elected House of Commons, has failed to grasp the assisted dying nettle’. This is largely because of the substantial political risk entailed in supporting assisted dying in the face of the vulnerability objection, which asserts,

while assisted dying might benefit some people, such as Tony Nicklinson, Martin, Debbie Purdy and Dianne Pretty, it will lessen the protection afforded to ‘vulnerable’ members of society. Therefore, by active or passive pressure, the vulnerable will request assistance to die against their wishes or interests, and no legal regime can provide adequate safeguards against this.

This is notwithstanding that ‘the evidence suggests that it is possible to institute safeguards around the practice of assisted dying’. I conclude by submitting that,

‘With respect, the judiciary would do well to stop looking to Parliament for legal change on assisted dying, and consider whether they can effect it themselves.’

You can access the briefing paper on ‘The Effectiveness of Legal Safeguards in Jurisdictions that Allow Assisted Dying’ that Penney Lewis and I wrote for the Commission on Assisted Dying and consider for yourselves whether it would be possible to implement a regulatory regime for assisted dying, whether by statute or court decision.

News and comment: Divisional court decision in Nicklinson

The Divisional Court has today decided against the applications brought by Tony Nicklinson and ‘Martin’ challenging the law governing murder and assisted suicide. In a judgment which rejects almost every argument made on behalf of Mr Nicklinson and ‘Martin’, the Administrative Court reiterated earlier court decisions that the law in this context could only be changed by Parliament:

75. The reasons given in Bland and in Inglis for saying that it is for Parliament to decide whether to change the law on euthanasia are compelling and should be followed by this court. The reasons have to do with competence, constitutionality and control of the consequences.

76. As to competence, the subject is profoundly difficult and complex, raising a myriad of moral, medical and practical considerations. . . .

79. As to constitutionality, it is one thing for the courts to adapt and develop the principles of the common law incrementally in order to keep up with the requirements of justice in a changing society, but major changes involving matters of controversial social policy are for Parliament. . . .

84. A decision by the court to alter the common law so as to create a defence to murder in the case of active voluntary euthanasia would be to introduce a major change in an area where there are strongly held conflicting views, where Parliament has rejected attempts to introduce such a change, and where the result would be to create uncertainty rather than certainty. To do so would be to usurp the role of Parliament.

85. As to control of the consequences, it is hard to imagine that Parliament would legalise any form of euthanasia without a surrounding framework regarding end of life care and without procedural safeguards. . . .

86. It would be impossible for a court to introduce, still less monitor, any such regime.

87. For all of those reasons it would be wrong for the court to depart from the long established position that voluntary euthanasia is murder, however understandable the motives may be, unless the court is required to do so by article 8.

The arguments under Article 8 were dealt with relatively briefly. Although there was agreement that the applicants’ Article 8(1) rights were engaged, the court found that the decisions in Pretty were conclusive on the issue of Article 8(2):

121. The only general principles which the Strasbourg court has expounded are that the right of an individual to decide how and when to end his life is an aspect of the right of respect for private life within article 8 and that states have a wide margin of appreciation in this area. For reasons which I have already given, I am satisfied that the law maker in this area (euthanasia) should be Parliament, just as Lord Hope and others said in Purdy that Parliament should be the law maker in the area of assisted suicide. Furthermore, since it has been held by both the House of Lords and the Strasbourg court [in Pretty] that a blanket ban on assisted suicide is not incompatible with article 8, the same must apply with added force to the ban on voluntary euthanasia.

In relation to Martin’s case, which challenged the differential treatment of professionals who assist in suicide under the Director of Public Prosecutions’ policy on prosecution, the court held that the policy meets the requirements of Article 8 as mandated by the House of Lords in Purdy:

138. The DPP has in my judgment done what was required of him by the decision in Purdy and it would be wrong to require him to do more.

139. From the DPP’s policy statement, I believe that it would be clear to a person who, in the course of his profession, agreed to provide assistance to another with the intention of encouraging or assisting that person to commit suicide, that such conduct would carry with it a real risk of prosecution.

In an article in Legal Studies in 2010 on the DPP’s policy, I wrote:

The dangers sought to be addressed by the policy focus on the unscrupulous or even abusive family member or friend, and the healthcare professional or activist. The shift of focus away from the victim, and the desire to avoid the appearance of the creation of a regulatory regime, have opened the door to assisted suicide in cases which would not be permitted by most of the existing regulatory regimes, while exposing to the risk of prosecution those with much-needed expertise and those who agree with the victim’s decision.

Unsurprisingly, the policy begins with the reassurance that ‘only Parliament can change the law on encouraging or assisting suicide.’ While Parliament has been unwilling to undertake formal legal change on assisted suicide, informal legal change has been accelerated by the House of Lords’ surprising decision in Purdy, coupled with a DPP willing to create an expansive policy covering all assisted suicides rather than just those which take place in another more permissive jurisdiction. The DPP has done so by implicitly describing (albeit imperfectly through the use of factors for and against prosecution) a class of assisted suicides which are permissible.

In England and Wales, we are now in uncharted territory, with a reluctant legislature, little guidance from the courts and an opaque process of informal legal change by prosecutors.

Lord Justice Toulson was keen to rebut this contention (which had also been put forward by the Commission on Assisted Dying, as quoted in paragraph 135 of the judgment). Instead, he asserted that the factor-based approach lay on the right side of an important “constitutional boundary”:

143. . . . For the DPP to lay down a scheme by which it could be determined in advance as a matter of probability whether an individual would or would not be prosecuted would be to do that which he had no power to do, i.e. to adopt a policy of non-prosecution in identified classes of case, rather than setting out factors which would guide the exercise of his discretion.

According to Toulson LJ, it is therefore the very imperfectness of the DPP’s policy which prevents him from having usurped his authority. And yet in Purdy, Lord Hope asserted that “it ought to be possible to confine the class that requires special treatment to a very narrow band of cases with the result that the Code will continue to apply to all those cases that fall outside it.” (para. 55) This suggests that the policy could have identified “a class that requires special treatment”.

Overall, though, the court’s message is clear. This is not a matter for the courts, but only for Parliament. The unusual step taken in Purdy must be seen as an isolated instance of judicial activism centred on the precise requirements of Article 8(2). For further legal change, unless the higher courts are more sympathetic to developing the defence of necessity, Mr Nicklinson and Martin will need to look to Parliament, which seems unlikely to take such a step.

Addendum: One further interesting aspect of this decision is the extent to which it cites and relies on the report of the Commission on Assisted Dying, chaired by Lord Falconer and evidence given to it, including evidence given by the Director of Public Prosecutions. Although the Commission was independent of government and Parliament, its report seems to have influenced the court on a number of points (see, eg, paragraphs 24, 37-38, 76-77, 85, 130-133, 135).

TV: ‘Dispatches’ on the Tony Nicklinson case

Monday 18 June 2012, 20.00-20.30, Channel 4, available for one month after broadcast via 4oD

From the programme’s website:

In 2005 Tony Nicklinson had a catastrophic stroke, which has left him utterly paralysed. He has what is known as ‘locked in syndrome’ and cannot move, talk, feed himself or perform even the most basic function without help. He can only communicate via a computer controlled by his eyes.

Tony Nicklinson wants to die, but he cannot kill himself without help, and anyone who helped him would be committing murder.

On the eve of a historic and controversial legal bid to demand the right to be killed, he tells his story, comes face to face with his critics, and hears from the Greek doctor who saved his life seven years earlier, who says he wouldn’t wish this condition on his worst enemy.

News: assisted suicide in Switzerland on the KCLMEL blog

The law and practice of assisted suicide in Switzerland will be much discussed this week following the broadcast of Terry Pratchett’s documentary. Earlier posts have discussed the Swiss government’s plans for reform of the law, and a recent court decision allowing the defence of necessity in a case of euthanasia (termination of life on request).

The DPP’s policy on prosecuting cases of assisted suicide, including cases in which the assisted suicide takes place in Switzerland, has been discussed in a series of posts, the links to the most recent of which can be found in this post on the Caractacus Downes case. Earlier posts on the interim policy and the Purdy case can be found by scrolling through the posts tagged ‘Switzerland’.

Film: You Don’t Know Jack

Sunday 06 February
9:00pm – 11:40pm
Sky Atlantic

From the Radio Times review: “Dr Death is the name the media tagged to Jack Kevorkian, the retired pathologist who assisted in the suicides of more than 130 terminally ill people during the 1990s. This classy HBO biopic details his almost messianic battle with the authorities in Michigan to establish euthanasia as a civil right. In the hands of director Barry Levinson (Diner, Rain Man, Wag the Dog), the issue-heavy script gains a cinematic sheen and fl ashes of black humour. For star Al Pacino, in a rare TV role, it provides plenty of meat, and bagged him both an Emmy and a Golden Globe. He’s ably supported by John Goodman, Susan Sarandon (always up for a part with liberal ideals) and Brenda Vaccaro as Jack’s sister (whose peculiar wigs lend a touch of Dick Emery). None of their characters engenders much sympathy – unlike Jack’s waiting list of patients. Mostly captured on grainy home video, their testimony and dying moments feel incredibly authentic and are sometimes hard to watch.”