Social work and end-of-life care

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Why is assisted suicide an offence in the UK? And it also is in Europe and the USA

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Why is assisted suicide an office?

In this post, linked to the previous one, I’m continuing to look at some of the things said in the Supreme Court judgement on assisted dying published over the summer.

It is useful to remind ourselves how assisted suicide comes to be an offence. This is explained in the judgement at Paras 15-54. In summary, the Homicide Act 1957 defined the common law offence of murder as the perpetrator killing a person when intending either to kill or to inflict grievous bodily harm. In the judgment, Lord Neuberger says:

16…The offence of voluntary (as opposed to involuntary) manslaughter is, in effect, murder in circumstances where the perpetrator is able to raise certain specified grounds of mitigation, including diminished responsibility and loss of control (all of which are subject to certain requirements). Manslaughter carries a maximum sentence of life imprisonment, and there is no minimum sentence.

17. Mercy killing is a term which means killing another person for motives which appear, at least to the perpetrator, to be well-intentioned, namely for the benefit of that person, very often at that person’s request. Nonetheless, mercy killing involves the perpetrator intentionally killing another person, and therefore, even where that person wished to die, or the killing was purely out of compassion and love, the current state of the law is that the killing will amount to murder or (if one or more of the mitigating circumstances are present) manslaughter – see per Lord Judge CJ in R v Inglis [2011] 1 WLR 1110, para 37. As Lord Browne-Wilkinson said in Airedale NHS Trust v Bland [1993] AC 789, 885, “the doing of a positive act with the intention of ending life is and remains murder”.

In  this judgment, Lord Sumption explains why suicide was once a criminal offence and why it was decriminalised:

211. … Suicide was a common law offence in England until 1961. It was treated as a form of murder. A particular feature of the law of murder, which makes it unusual among offences against the person, is that the consent of the victim is not a defence to a charge of deliberate killing. Suicide, or “self-murder”, was therefore an offence notwithstanding its voluntary character. It followed that an unsuccessful attempt at suicide was criminal, and so was the act of an accessory. The Suicide Act 1961 abolished the rule of law which made suicide an offence, but preserved the criminal liability of accessories. As amended by the Coroners and Justice Act 2009, section 2(1) created a statutory offence committed by any person who does an act which is (a) “capable of encouraging or assisting the suicide or attempted suicide of another person”, and (b) “intended to encourage or assist suicide or an attempt at suicide.”

212. The reason for decriminalising suicide was not that suicide had become morally acceptable. It was that imposing criminal sanctions was inhumane and ineffective. It was inhumane because the old law could be enforced only against those who had tried to kill themselves but failed. The idea of taking these desperate and unhappy individuals from their hospital beds and punishing them for the attempt was as morally repugnant as the act of suicide itself. It was ineffective because assuming that they truly intended to die, criminal sanctions were incapable by definition of deterring them…

Do other countries have similar bans?

Lord Sumption also explains in 212 that research shows that most countries have a prohibition against assisted suicide:

…However, the continuing legal objection to suicide was reflected in the fact that very many countries in which suicide was lawful nevertheless imposed criminal liability on those who advised or assisted it. Research summarised in the judgment of the European Court of Human Rights in Koch v Germany (2013) 56 EHRR 6 at para 26 suggests that of the 42 members states of the Council of Europe for which information was available, 36 imposed criminal liability on any form of assistance to suicide and another two, while not imposing criminal liability on direct assistance in suicide, prohibited the prescribing of drugs in order to facilitate it. In Haas v Switzerland (2011) 53 EHRR 33, at para 55 the Court concluded that “the vast majority of member states seem to attach more weight to the protection of the individual’s life than to his or her right to terminate it.”

Lord Mance, in his judgment, makes a similar point about the US. Most US states do impose a blanket ban, but the evidence that some states dissent suggests that this issue is being reconsidered thoughtfully over time.

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Written by Malcolm Payne

25 September 2014 at 12:07 pm

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