Ewha Law School

Jungwoo Kang

The question of whether assisted dying should be legalised has become more prominent than ever before for different reasons such as increased discourse of patients’ autonomy in medical law or the development of new medical technologies. Many domestic laws strictly ban active or passive euthanasia, which involves any positive act of doctors killing their patients or their omission to let the patients die. Aiding or abetting someone to suicide is also a serious offence under many statutes like Suicide Act in the UK, and the act is punishable with imprisonment for up to 14 years under the law. European and British courts have made it clear that they do not recognise a right to decide when and how to die, and assistance to die is strictly unlawful.

However, it is often argued that bans on assisted dying undermine patients’ autonomy. Numerous people suffering from chronic illness commit suicide every year, and some travel to Dignitas in Switzerland to be legally assisted to peacefully end their lives, which constitute nearly a quarter of all suicide tourists to the institution. Advocacy groups have called for reforms of the laws. The Assisted Dying Bill has been constantly introduced in the UK even though it has been rejected for more than 20 years. If enacted, it would bring an important and essential change to the medical law.

The Assisted Dying Bill is designed to enable competent adult patients who suffer from a terminal illness with less than six months to live to have an assisted dying at their request without making anybody who assists them criminal. The decision should be made voluntarily without coercion, and the person must have a clear and settled intention to end his or her life, make and sign a written declaration to that with a sign of a witness who is extrinsic to the patient or the treatment. Before countersigning the declaration, the attending doctor who takes charge of the prescription of life-ending treatment and an independent doctor must be satisfied that the patient has a terminal illness, capacity and a clear intention. If the patient qualifies all requirements, the doctor can prescribe a lethal dose, then the patient would self-administer it after a period.

Autonomy of patients can be better served with the Bill legislated. In recent decades, medical ethics have put more importance on the autonomy of individual patients by developing the doctrines of informed consent or confidentiality. The Bill enables patients with imminent death due to their illness to make their own decision in their individual best interests. Norman Lamb says the ending-life decision is very personal, and it should be the patients who decide their deaths subject to critical safeguards, not the state.

The right of self-determination of patients should be protected when their fear towards suffering becomes far bigger than the one towards their own deaths. The strictness of the laws has made a number of patients travel to Dignitas in Zürich, take a painful step like refusing food and water, taking a botched attempt to stop their own life or even making their loved ones criminal after getting their assistance to suicide. According to Clive Seale (2009), many illegal assisted dying practices have been done unknowingly, and it shows some doctors take a risk of facing criminal charges due to compassion they have towards the patients. The need for a clear legal scheme for the patients increases whose best interest lies in peaceful and painless death with assistance.

Dr Stephen Hawking once said denying ‘the right to kill themselves’ could be a discrimination against disabled people when people with able body can lawfully do so. He says freedom to choose should be protected, and the option cannot be taken away even when it seems unreasonable to do so to others as the right to refuse is absolute to competent patients when the reasons behind it are irrational or unknown. With the strict safeguards, the vulnerable terminally ill would not be pressurized to choose to die.

Arguments against the Bill often lies in the worries of the Bill becoming a slippery slope, pushing the vulnerable to choose to die when they feel they are a burden to the people around them. However, advocates make it clear that most of the hypothetical victims are not actually going to be affected by the Bill. Disabled people with no terminal illness, other people who are not suffering from a terminal illness, people who do not have a mental capacity, and children are not qualified to be given any lawful assistance to death by the Bill. In fact, data show countries like the Netherlands where assisted dying is legal have faced less involuntary euthanasia cases, and in Oregon, the vulnerable have received less assisted dying than the general population. The Bill, however, is overwhelmingly rejected as it might fundamentally affect the relationship between doctors and patients.

The Assisted Dying Bill is expected to bring a limited, but crucial change to the law by enabling its targeted competent adults to make a safeguarded choice to end their life if they are unnecessarily suffering from terminal illness. With a list of safeguards, the Bill tries to minimize any side-effect, yet bring a better picture of legalisation of assisted dying. It seems, however, the Bill struggles to gain enough support in the Parliament despite overwhelming public support as it is hard to find a consensus among different stakeholders.

References

BBC News (2014) Stephen Hawking backs assisted dying bill. http://www.bbc.co.uk/news/health-28337949

Delamothe, T., Snow, R. and Godlee, F. (2014) Why the Assisted Dying Bill should become law in England and Wales. British Medical Journal 349:g4349

Gauthier, S., Mausbach, J., Reisch, T., et al. (2014). Suicide Tourism: a pilot study on the Swiss phenomenon. Journal of Medical Ethics.

Jackson, E. (2013) Medical Law; Text, Cases and Materials (3rd edn, OUP)

Onwuteaka-Philipsen, B. D. and et al. (2012) Trends in end-of-life practices before and after the enactment of the euthanasia law in the Netherlands from 1990 to 2010: a repeated cross-sectional survey. The Lancet 380(9845). 908-915