Killing by kindness

Most Britons believe assisted suicide should be legalised. Elly Connors asks whether Parliament could do more to help those so ill that they want to end their lives

It was headline news on 12 May 2002 - Diane Pretty had died at a hospice near her home in Bedfordshire. Pretty, who had been in the advanced stages of motor neurone disease and entirely paralysed, had wanted "a quick death at home, without suffering", and for her husband Brian to be able to help her to achieve that "good death" without fear of prosecution. But just two weeks earlier she had learnt that her "right-to-die" challenge in the European Court of Human Rights - brought after she had exhausted all legal avenues in the UK - had failed. Brian's verdict on her death: "Diane is free at last," but "she had to go through the one thing she had foreseen and was afraid of, and there was nothing I could do to help."

It was headline news on 12 May 2002 - Diane Pretty had died at a hospice near her home in Bedfordshire. Pretty, who had been in the advanced stages of motor neurone disease and entirely paralysed, had wanted "a quick death at home, without suffering", and for her husband Brian to be able to help her to achieve that "good death" without fear of prosecution. But just two weeks earlier she had learnt that her "right-to-die" challenge in the European Court of Human Rights - brought after she had exhausted all legal avenues in the UK - had failed. Brian's verdict on her death: "Diane is free at last," but "she had to go through the one thing she had foreseen and was afraid of, and there was nothing I could do to help."

On 20 January 2003, another motor neurone disease sufferer, Reginald Crew, died after deliberately drinking water spiked with barbiturates. Reginald lived in Liverpool, but he died far from home, in Switzerland, where, as in Belgium and Holland, assisted suicide is legal. His wife's verdict: "It was what he wanted and he ended his life peacefully... I'm just mad that he couldn't have ended it in his own country".

These cases generated universal sympathy as well as intense debate. According to an NOP poll taken in October 2002, 81 per cent of respondents thought that physician-assisted suicide should be legalised. But there is a substantial minority, ranging from religious groups to disability rights campaigners, that vehemently opposes any such change, believing that these hard cases would make bad law. So what is our verdict? Is the current law the best we can do for people like Diane and Reginald while protecting vulnerable members of society, or should it be changed to help those who are suffering unbearably from a terminal illness and want to receive help to die?

Until 1961 suicide was a crime. The offence was abolished by the Suicide Act 1961, but why? In recognition of every individual's right of self-determination? Apparently not. According to Lord Bingham, in the House of Lords' decision in Diane Pretty's case, suicide was decriminalised because the existence of the offence was an ineffective deterrent that stigmatised the suicide's family and led to the "distasteful result" that patients recovering in hospital from a failed suicide attempt were prosecuted, in effect, for their lack of success. In short, the abolition was a concession to pragmatism, which in no way diluted Parliament's commitment to the principle of upholding the sanctity of life. That is why, at the same time as abolishing the offence of suicide, section 2 of the 1961 Act expressly preserved the offence of assisting suicide - the offence that Brian Pretty and Wyn Crew would have been committing had they helped their loved ones to die.

So, faced with a patient who wishes to die, and who can demonstrate that he is mentally able to make that decision, what can a doctor do to help? As the law stands, the answer is he cannot give treatment designed to end life, but can give treatment designed to end suffering, the incidental effect of which is to end life. That this - the classical doctrine of double effect - is the law was confirmed three years to the day before Diane Pretty's death, on 11 May 1999. That day, the news was dominated by the verdict in the trial of Northumberland GP David Moor, accused of the murder of his patient George Liddell, who was dying painfully of terminal cancer. George begged his doctor to end his suffering, and died after Dr Moor administered diamorphine, a powerful painkiller. The GP openly admitted he had done the same thing "hundreds of times" in the course of his career. The jury's verdict? Not guilty, presumably because they believed that although Dr Moor knew the injection would hasten his patient's death, death was a "foreseen but unintended consequence" of pain relief.

Also relevant is the distinction between acts and omissions. Although no patient can in law consent to a doctor administering a lethal injection, no matter how demonstrable his mental integrity, every patient has an absolute right to refuse to consent to medical treatment for any reason, rational or irrational, even where that decision will inevitably lead to death which might otherwise be avoided for a long time. This was confirmed in March 2002 by the case of Ms B, a 43-year old social worker who was left quadriplegic after an accident and successfully sought a court order requiring doctors to remove artificial ventilation, even though the consequence was that she would die.

So why does the law make this rather arbitrary and formalistic distinction? The answer: compromise. It is trying to balance the principle of respect for an individual's autonomy against society's interest in upholding the sanctity of life and in protecting the elderly, lonely, sick and distressed, who might otherwise feel that they were a burden on others or under pressure to request an early death. As Lord Bingham said, "the message which society sends to vulnerable and disadvantaged people should not, however obliquely, encourage them to seek death, but should assure them of our care and support in life."

So can we do better? Yes, so long as we put in place sufficient safeguards to ensure that society does not pay too high a price for respecting the wishes of the tragic, but thankfully small, minority of "hard cases". Hard cases can make good law so long as legislation is carefully drafted to ensure that assisted suicide is only open to those who are, firstly, capable of and secondly, actually consenting to their own deaths. Capacity requires an ability to comprehend and weigh relevant information and communicate the decision made. As for consent, it may be no consent at all if it is brought about by duress. So we must be able to ascertain that a person is not being pushed into a life or death decision by forces that are within someone's control (eg lack of palliative care or finances), rather than forces that are not, including but not limited to terminal illness, as the case of Ms B demonstrates.

On 20 February 2003, the retired human rights lawyer Lord Joffe proposed the Patient (Assisted Dying) Bill in Parliament. The Bill provides the following safeguards: first, the patient must have been diagnosed by two physicians - one a consultant - with an illness that is either terminal or serious and progressive; second, the patient must make a written declaration, witnessed by a solicitor, and if there is any doubt that he fully understands the implications of his choice, then a psychiatrist's opinion must be sought as to capacity; third, the doctors must be satisfied that the patient has considered the alternatives to assisted suicide, including palliative and hospice care; fourth, a waiting period must be observed, so the patient has time to reconsider; fifth, assistance to die must only be given by a physician who freely chooses to assist; and finally, a commission must be established to monitor all cases of assisted suicide.

The Bill is not perfect. The requirement that the patient must be terminally ill or suffering from a serious and progressive illness swings the balance too far in favour of society's interest in upholding the sanctity of life at the expense of individual autonomy. In another sense, the bill goes too far the other way, because it does not restrict assisted suicide to those who actually require assistance to die or, at least, require assistance to die without undue suffering. Nor is it clear how someone who is paralysed will make a written declaration. Dutch law recognises both oral and written requests, and so long as an oral request is recorded or witnessed, so should our law.

However, the Bill is a great deal better than the present law. Hopefully it will stimulate much-needed Parliamentary debate on this issue, and their verdict will be "we can do better".

Elly Connors is this year's winner of 'The Independent' and College of Law essay competition