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The right to die: Should it exist?

With specific reference to Lord Falconer’s Assisted Dying Bill, this article discusses whether terminally ill individuals should have the legal right to end their lives through a legalization of assisted dying in the UK, and poses the question: is there really distinction between an act and an omission if both ultimately lead to the death of a patient?

Written by Abbey Docherty, 4th year LLB and sub-editor of the Healthcare and Family Law portion of the Review. 

The dispute and controversy surrounding the topic of assisted dying is one that has been debated somewhat at length. As will be considered in this article, competent individuals have the right to refuse unwanted medical treatment[1]. This extends to the right to refuse life-sustaining medical treatment which may, ultimately, result in the death of the individual. The question inherent to this article is, therefore, whether terminally ill individuals in the UK should be afforded the legal right to end their lives through the legalization of assisted dying.

In order to discuss the concept of assisted dying in the UK, we must first assess the distinction between the right to refuse medical treatment and the right – if one should exist – to choose to die with the aid of one’s doctor. In the modern day, patients are far more inclined than they once were to enquire about their diagnoses, treatment options, and a plethora of further medical information. The idea that patients should be more participatory with regards to their own medical issues is based on the argument that medicine should be more patient-centred. The doctrine of informed consent requires medical professionals to obtain a patient’s voluntary and informed consent before carrying out any medical treatment, as established by the GMC in both its 1998[2] and 2008[3] published guidance on the matter. Similarly, the 2004 case of Chester v. Afshar[4] established that a patient must be afforded the right to make a fully informed decision, on the basis that the individual’s personal autonomy and dignity are factors which are central to the law regulating the medical profession. It is thus a general rule of law that if a patient must consent to any medical treatment a doctor intends to undertake, it is subsequently the case that a patient has the right to refuse such treatment. Although it has proven to be problematic in several cases and is, ultimately, a decision for the courts, this almost unlimited right lends itself to the debate as to whether it extends to the right to “choose death”.


On the 18th of July 2014, Lord Falconer’s Assisted Dying Bill passed its second reading in the House of Lords. The proposed legislation would enable competent, terminally ill adults to legally request a lethal dose of medication from their doctor, in order to hasten their own death. Whilst 82% of the British public appear to be in favour of assisted dying[5], the bill has failed to achieve widespread political support. David Cameron has refused to support such legalization, claiming that he is unconvinced by the arguments put forth for reform. It must therefore be questioned whether the state’s unqualified interest in the protection and preservation of human life should take precedence over, or compromise, an individual’s right to autonomy. 

The principle of autonomy governs the majority of aspects in an individual’s life, and thus the legalization of assisted death would simply extend the right to the final stages of life. It can be argued that a patient who has made a voluntary request for assisted death is simply exercising their rights in the same way that a competent person has made an informed decision to discontinue treatment. This also relates to the concept of individual liberty vs. state interest. Oftentimes the state may have an interest in protecting a patient’s life, thus in cases where refusal of treatment could result in the patient’s death, the state may wish to invoke its interest by treating that patient against their will. This, of course, is even more applicable to the idea of assisted dying. In the U.S. case of Cruzan, Justice O’Connor stated that “the state’s interest in protecting those who are not truly competent or facing imminent death … are sufficiently weighty to justify a prohibition against physician assisted suicide.[6] However, it is argued the concept of personal liberty means that this interest lessens in the instance that a terminally ill person has a strong desire to end their life. The question posed by many is why the state or medical profession should be afforded the right or ability to determine the extent of suffering that someone must endure while they are dying. Individual liberty is of far more importance in a democratic society than the furtherance of a state’s interests, therefore it is argued that this interest should be protected through the legalization of assisted dying in the UK.

Typically, the law looks to both intent and purpose in an effort to distinguish between two different acts that may end with the same result. There is often a distinction between the intent of a patient who seeks assisted death and a patient who simply wishes to exercise their right to refuse or discontinue treatment. Those patients seeking assisted death have the specific intent to end their life, which many argue can be combatted with treatment such as further medication or cognitive therapy. Comparatively, those patients who refuse treatment may not have such specific intent. They may be morally or religiously opposed to such treatment or, conversely, may simply be seeking a way to alleviate unnecessary pain. Intent is thus argued to be at the crux of the debate. Similarly, causation is an arguable aspect. Many claim that an act which ends a patient’s life is significantly different than an omission which may do the same thing. In the U.S. case of Vacco v. Quill[7], the Montana trial court held that the doctor’s intent in the two situations is different: lethal in writing the prescription, but palliative in carrying out the patient’s request to withdraw treatment. In answering the question as to whether reform is necessary in this area of law, it is important to look to those jurisdictions that have legalized assisted dying.

The Netherlands is one jurisdiction which expressly permits both assisted dying and euthanasia. In 2001, after several decades of public debate, both were formally legalized by the Termination of Life on Request and Assisted Suicide (Review Procedures) Act, which took effect in April 2002.[8] Whilst the Act has specific safeguards in place in order to regulate the practice and protect against the risk of abuse, it is reported that more than 500 people in the Netherlands are euthanized involuntarily every year.[9] The Dutch government’s own study revealed that in 1990 there were, alarmingly, more than 1,000 cases of euthanasia without an explicit request. Similarly, in 2005 a total of 2410 deaths by euthanasia or aided suicide were reported, with more than 560 of these being cases in which patients had been administered lethal doses of medication without having given explicit consent.[10] Such statistics suggest that the practice in the Netherlands has not been limited to competent, terminally ill adults as was originally required. This is, of course, one of the great concerns regarding Lord Falconer’s Bill: the potential “slippery slope” argument. The doctor-patient relationship is characterized by a huge imbalance of power, owing to the vulnerability of illness and treatment, and doctors’ vastly superior knowledge and skills. The fear of legalization is the possibility that the situation in the Netherlands will be replicated in the UK. If passed, can it be guaranteed that vulnerable individuals will not be put at risk at the hands of negligent doctors, when the same safeguards were implemented and, arguably, overlooked in the Netherlands?

There can be a high risk of coercion and undue influence in end of life decisions. Opponents of legalization in the U.S. argue that most states ensure against this risk of abuse not by “regulating” assisted suicide, but by banning it completely, thus protecting even the slightest risk of exploitation of those more vulnerable in society. Those states which have taken the step to legalize assisted dying have been heavily criticized, with opponents claiming that rather than striking the right balance between the state and individual interests, the law has lessened the value and sanctity of human life. The opposition to assisted dying appears to remain strong. However, Oregon’s Death with Dignity Act came into effect in 1997 and appears to include – and implement – stringent safeguards to ensure that all patients are protected. Doctors occasionally fail to diagnose and treat depression or provide adequate palliative care. It has consequently been argued that the Death with Dignity Act fails to put sufficient protections in place for those individuals dealing with mental disorders, and that of those safeguards that are in place, they are not being utilized correctly, if at all. Yet research has found that doctors refused to provide a prescription in Oregon in 82% of cases (with only 1 in 10 actually resulting in death)[11], compared to the Netherlands where only 56% of cases were refused.[12] Equally, those arguing that the law permits mentally ill individuals to take their lives without any regard from physicians can be countered by the fact that while 20% of requests in Oregon came from patients with depression, none of these requests were granted.[13] In fact, the same study shows that the most common diagnosis for patients requesting a prescription is terminal cancer, thus falling under the requisite “terminal illness” requirement as provided by the law. It must then be questioned whether it is the law that is the problem, or simply the jurisdiction that implements it. Is it truly fair, in a democratic society, to deprive individuals the right to full bodily autonomy, simply because the judicial system of one jurisdiction has become detrimentally more accepting and lenient regarding such transgressions? It is true that the situation in the Netherlands has resulted in the death of many individuals which could, perhaps, have been otherwise avoided. However, the situation in the U.S. appears to rebut the majority of the negatives presented by the Netherlands. Lord Falconer’s bill does not propose that we even consider euthanasia, but simply allows terminally ill British citizens to choose to die with dignity. It is thus questioned whether the UK government can reasonably oppose such a bill, at the expense of what the majority of the British public wants, simply to protect their own values and to preserve what they may call “the moral worth of society”.

The argument that we should have mercy and compassion for those who are suffering greatly is of the utmost importance regarding this issue. Opponents claim that an increased availability of assisted dying in certain jurisdictions has led to a decrease in the availability of pain management and palliative care, something which could eradicate the “necessity” for an aid in dying option altogether. However, many medical professionals argue that most individuals seeking aid in dying are suffering from more than simply physical pain; that there are other social and psychological burdens, for example the loss of independence and functional capacities that some patients feel jeopardize their dignity. Alleviating the physical pain does not always equate to a relief of suffering. Lord Falconer’s assisted dying bill allows individuals the right to determine the time and way in which they die, thus the proposed legalization is, simply, a “compassionate response to unbearable suffering”.[14]  

[1] Airedale N.H.S. Trust v Bland [1993] A.C. 789

[2] Seeking Patients’ Consent: The Ethical Considerations, Nov. 1998

[3] Consent: Patients and Doctors Making Decisions Together, 2008

[4] Chester v Afshar [2004] UKHL 41

[5] British Social Attitude (BSA) Survey 2010

[6] Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990)

[7] Vacco vQuill, 521 U.S. 793 (1997)

[8] Deliens L, van der Wal G. The euthanasia law in Belgium and the Netherlands. Lancet. 2003

[9] Van der Heide A, Onwuteaka–Philipsen BD, Rurup ML, et al. End-of-life practices in the Netherlands under the Euthanasia Act. N Engl J Med. 2007

[10] Pereira, J. (2011). Legalizing euthanasia or assisted suicide: the illusion of safeguards and controls. Current Oncology

[11] Hall, M., Bobinski, M. and Orentlicher, D. (2005)

[12] Jansen-van der Weide et al., Granted, Undecided, Withdrawn and Refused Requests for Euthanasia and Physician Aid in Dying, 165 Arch. Intern. Med. 1698 (2005).

[13] Linda Ganzini et al., Physicians’ Experiences with the Oregon Death with Dignity Act, 342 New Eng. J. Med. 557 (2000)


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