In whose hands? The right to die or the right to assisted dying

The question before the parliaments of many countries including Cyprus and UK is whether the time has come to legalise euthanasia

There are rights recognised as enforceable human rights and there are rights that are informal and unenforceable. The right to die which is no longer a crime in many countries still remains an unrecognised right.

The difficulty with assisting another person to die is that as the right to die is not recognised anyone assisting in the death of another is guilty of murder even though the motive is to alleviate intolerable pain and suffering. The reason for this paradox is that motive is irrelevant to the definition of murder – though it is evidentially highly relevant to proving X killed Y intentionally.

The problem is that often it is not possible for one to arrange and execute the end of one’s life by easing one’s exit smoothly and with dignity. Medical assistance is required to ease the passing, and provided adequate safeguards are in place to prevent abuse, it is the right of every person of full age and capacity to end one’s life if it becomes a mere existence in intolerable pain and suffering. 

The question before the parliaments of many countries including Cyprus and UK is whether the time has come to legalise euthanasia or mercy killing – assisted dying in legal jargon. In UK a private member has introduced a proposed law – the Assisted Dying Bill – that would legalise assisted dying.

Its main clause is that a terminally ill person may request and lawfully be provided with assistance to end his or her life. A person is terminally ill if he has an inevitably progressive condition that cannot be reversed by treatment and is reasonably expected to die within six months. This is far too stringent and excludes a huge number of equally deserving cases of intolerable pain and suffering who are not terminally ill and not expected to die in six months.

To be lawful the assistance must be by a doctor – the attending doctor – but subject to the consent by the High Court (Family Division) confirmed by order of the court that the person is a UK resident over 18 with legal capacity and has a voluntary, clear, settled and informed wish to end his or her life and made a written declaration to that effect.

The declaration is the request for assistance and has to be made to the person’s attending doctor, who need not be the doctor who made the diagnosis that the person is terminally ill. The declaration must state that it is voluntary and express a clear, settled and informed wish to end one’s life and be witnessed by another person who is not a relative or involved in one’s care.

The declaration has to be countersigned by the attending doctor and another independent doctor who are authorised to countersign only if they examined the person and his or her medical records independently and who must be in no doubt the person has legal capacity. They must also be satisfied that the person is terminally ill, has evinced a clear and settled intention to end his or her life voluntarily on an informed basis without coercion or duress, and has been fully informed of the palliative and hospice care available instead. The declaration can be revoked at any time and need not be in writing.

The critical part of the proposed law is the part that authorises the actual end-of-life procedure. The attending doctor can prescribe end-of-life medication to the person whose declaration has been approved by order of the court. The prescription is only to be given to the person who made the declaration after confirmation he or she does not wish to revoke it.

After that final hurdle is cleared, the medicine is to be self-administered by the person for whom it is prescribed, although assistance may be provided by a health professional to prepare the medicine or a device for self-administration, or to assist the person to ingest it. But the decision to self-administer and the final act of doing so must be by that person.

The Suicide Act 1961 that makes it an offence to assist suicide is disapplied to assisted dying under the Assisted Dying Act.  

Those are the main provisions of the proposed law on assisted dying that should be welcome even though it should have been initiated by the government and not by a private member. It is said that as a private member’s initiative it enables MPs a free vote according to their conscience but on close analysis that is hypocritical nonsense. The only persons who suffer are not MPs but those who suffer in intolerable pain and suffering for whom exit from their appalling undignified circumstances would be a welcome overdue relief.

It often happens in human rights law that there are cases in which human rights complement one another and there are cases where competing human rights are in play. End-of-life cases obviously engage the right to life but they also engage the right to respect for private life and the right not to be subjected to inhuman and degrading treatment.

A person who is condemned to live a hopeless existence in intolerable pain and suffering is not being accorded a dignified private life and laws that criminalise end-of-life assistance subject victims to inhuman and degrading treatment by the law.

So the right to private life and the right not to be subjected to inhuman and degrading treatment trump the right to life. Consequently the government has to declare the law would be compatible with the European Convention on Human Rights.

Alper Ali Riza is a king’s counsel in the UK and a retired part time judge