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

6 March 2017

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

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Comment: what is the future of the policy for prosecutors on assisting or encouraging suicide?

25 June 2014

In 2013, Martin, one of the claimants in the case known as Nicklinson was successful in his claim at the Court of Appeal. By a majority of 2-1, the Court of Appeal ruled that the Director of Public Prosecutions’ Policy on prosecuting cases of assisted suicide did not allow professionals such as doctors, nurses, carers and social workers to foresee the consequences of providing such assistance.

In the Policya group of factors in favour of prosecution are designed to ensure that assistance in suicide remains an activity carried out by inexperienced individuals without the open assistance of professionals or amateur organisations (as in Switzerland):

(11) the suspect was unknown to the victim and encouraged or assisted the victim to commit or attempt to commit suicide by providing specific information via, for example, a website or publication;

(12) the suspect gave encouragement or assistance to more than one victim who were not known to each other;

(13) the suspect was paid by the victim or those close to the victim for his or her encouragement or assistance;

(14) the suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer [whether for payment or not], or as a person in authority, such as a prison officer, and the victim was in his or her care;

(16) the suspect was acting in his or her capacity as a person involved in the management or as an employee (whether for payment or not) of an organisation or group, a purpose of which is to provide a physical environment (whether for payment or not) in which to allow another to commit suicide.

The very role of such professionals was therefore a factor in favour of prosecution (factor 14), while factors against prosecution might also be present, including a compassionate motive (factor 2 against prosecution). The DPP was therefore asked to revise the Policy. Instead, he announced his intention to appeal and today the Supreme Court allowed his appeal. The court would not require the DPP to go further than he did in response to the House of Lords decision in Purdy by providing a list of factors for and against prosecution when deciding whether prosecution would be in the public interest. Martin had sought to force the DPP to identify a class of cases in which prosecution would not be in the public interest. Lord Hughes concluded (at [277]):

It is legitimate to say that Parliament no doubt recognised that there might be persons who commit the [Suicide Act 1961] section 2(1) offence, whom it turns out not to be in the public interest to prosecute. That, however, is true of every offence in the criminal calendar. It is not legitimate to suppose that there is a category of such persons which can be identified in advance by the Director of Public Prosecutions. She cannot do so without crossing the constitutional boundary into either changing the law or giving advance exemption from it to a group of potential offenders.

However, this is not the end of the story in relation to the policy for prosecutors. The DPP will need to consider whether the policy should be revised to reflect a claim made by Lord Judge (dissenting on this point) in the Court of Appeal which was accepted by counsel for the DPP before the Supreme Court ([143]):

185. … [I]t seems clear to me that paragraph 14 addresses the risks which can arise when someone in a position of authority or trust, and on whom the victim would therefore depend to a greater or lesser extent, assisting in the suicide in circumstances in which, just because of the position of authority and trust, the person in authority might be able to exercise undue influence over the victim. As I read this paragraph it does not extend to an individual who happens to be a member of a profession, or indeed a professional carer, brought in from outside, without previous influence or authority over the victim, or his family, for the simple purposes of assisting the suicide after the victim has reached his or her own settled decision to end life, when, although emotionally supportive of him, his wife cannot provide the necessary physical assistance.

186. … Naturally, it would come as no surprise at all for the DPP to decide that a prosecution would be inappropriate in a situation where a loving spouse or partner, as a final act of devotion and compassion assisted the suicide of an individual who had made a clear, final and settled termination to end his or her own life. The Policy … deliberately does not restrict the decision to withhold consent to family members or close friends acting out of love and devotion. The Policy certainly does not lead to what would otherwise be an extraordinary anomaly, that those who are brought in to help from outside the family circle … are more likely to be prosecuted than a family member when they do no more than replace a loving member of the family, acting out of compassion, who supports the ‘victim’ to achieve his desired suicide. The stranger brought into this situation, who is not profiteering, but rather assisting to provide services which, if provided by the wife, would not attract a prosecution, seems to me most unlikely to be prosecuted. In my respectful judgment this Policy is sufficiently clear to enable Martin, or anyone who assists him, to make an informed decision about the likelihood of prosecution.

Having accepted that a person acting in his or her professional capacity in these circumstances (for example a professional carer, motivated by compassion, who enters into a non-profiteering arrangement to accompany a patient for whom he or she was not previously caring and who has already decided to go to Dignitas) would be unlikely to be prosecuted, Lord Neuberger invited the DPP to change the policy accordingly ([146]):

Given that, in an important respect, the 2010 Policy does not appear to reflect what the DPP intends, it seems to me inevitable that she will take appropriate steps to deal with the problem, particularly in the light of the impressive way in which her predecessor reacted to the decision in Purdy. However, if the confusion is not sorted out, then, at least in my view, the court’s powers could be properly invoked to require appropriate action, but, as I have said, it seems very unlikely that this will be necessary.

If this remains the DPP’s position, then the policy could possibly be amended to limit the applicability of the current factor 14, though Lords Mance ([193]) and Sumption ([251]) were sceptical that the policy could be so amended without rendering it internally inconsistent or incoherent. Lady Hale, though, was in favour of a more far-reaching review of the policy (at [323]), returning to an argument she made in Purdy about the role such a policy could play in ensuring that the interference with the claimants’ rights under Article 8(1) could be justified under Article 8(2) (which neatly takes us back to the other argument in this case):

It seems to me, as it seemed in Purdy, that the policy has two purposes. The first, and uncontroversial, purpose is to make the way in which decisions to prosecute will be taken sufficiently clear to meet the Convention requirement that the interference be “in accordance with the law”. This entails accessibility (hence the need to clarify the policy) and foreseeability, as well as consistency and lack of arbitrariness. We can debate endlessly what the Strasbourg court meant, at para 76 of Pretty (quoted by Lord Neuberger at para 32 above) by first stating that the “Court does not consider therefore that the blanket nature of the ban on assisted suicide is disproportionate” and going on to discuss the flexibility of enforcement in the next sentence. It might have been reverting to the “non-arbitrary” requirement of legality. Or it might have been continuing its discussion of proportionality. I ventured to suggest in Purdy (paras 63 and 64) that the policy may have a part to play in securing that section 2(1) does not operate as a disproportionate interference with the right protected by article 8 and now so clearly articulated in Haas v Swizerland. The underlying theme of the factors which the DPP considers relevant to whether a prosecution will be in the public interest is clearly to identify the sort of cases which might be covered by the exception proposed above. The time may therefore be ripe for a review to see whether further progress can be made in that direction without offending against the constitutional prohibition of “dispensing with the laws”. But I agree that there is no need to make an order requiring the DPP to conduct a review. She will no doubt be considering the position in the light of the judgments in this Court and in the Court of Appeal.

What can we conclude at this point? Perhaps only that there is no evidence that this DPP will take a more restrictive position on the public interest in prosecuting these cases than her predecessor. Whether she and her team will revise the policy to make prosecutions less likely and thereby possibly encourage greater professional involvement in assisted suicide remains to be seen. As I wrote in response to the decision of the Court of Appeal:

The advantages of open medical involvement in assisted suicide are manifold, and include a lower risk of botched suicides and suffering during the suicide or attempted suicide (as illustrated in the Gilderdale case) and the possibility of screening for possibly hitherto unknown mental disorders including depression. At present, the expertise necessary to achieve a safe, peaceful assisted death is concentrated in healthcare professionals, and they are the main gatekeepers of the medications needed to accomplish this. A Policy under which those seeking assistance in dying cannot access this expertise, even in the form of advice, nor the appropriate medications, and where others are prevented from developing and disseminating such expertise, is undesirable. Allowing assistance from healthcare professionals only on a “one off” basis would frustrate the development of expertise in assessing the validity of requests for assistance. It should be possible to assign weight to the relevant factors that would not prevent compassionate, professional and expert assistance while still avoiding what the Lord Chief Justice has termed “profiteering” (at [184]-[186]).


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

25 June 2014

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

19 February 2013

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

18 October 2012

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


TV: ‘Dispatches’ on the Tony Nicklinson case

17 June 2012

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: Switzerland decides against regulating assisted suicide

26 July 2011

The Swiss process of reviewing the legal regulation of assisted suicide has ended with a decision by the Federal Council not to regulate either organised assisted suicide or ‘suicide tourism’, as was originally proposed in 2009. The Federal Council reached the view that the practice of assisted suicide is already adequately regulated through the Penal Code, the Therapeutic Products Act, the Narcotics Act and professional rules. The Federal Council described continuing goals of suicide prevention and promotion of self-determination at the end of life including the choice of palliative care rather than assisted suicide:

the Federal Council wishes to continue to support the prevention of suicide, palliative care, and the care and treatment of people with terminal, life-threatening and chronic illnesses. The focus is on improving self-determination at the end of life. To this end, the public should be made aware of the alternatives to suicide.