This article examines the recently published report by the Commission on Assisting Dying and discusses the implications of its proposed new legal framework for assisted suicide on doctors and other healthcare professionals.
On 5 January 2012, the Commission on Assisted Dying, which was set up in September 2010, published its report on the current law on assisted suicide. From the perspective of health and social care staff involved in end of life situations, the Commission concludes that the law is unclear and should not continue. It sets out a proposed framework on assisted dying, should such a system be implemented in the UK. This places a striking emphasis on health and social care professionals upholding and promoting suggested safeguards to prevent the abuse of vulnerable groups, whilst strictly defining the circumstances in which terminally ill patients would be assisted in dying.
Criminality
Under current legislation, encouraging or assisting another person's suicide or attempted suicide is illegal in England and Wales, and is punishable by up to 14 years' imprisonment. However, the report sets out that there has been no prosecution of offences since the publication of the Director of Public Prosecutions' policy on assisted suicide in February 2010. Despite this, it remains at the discretion of the Director of Public Prosecutions to prosecute, which shrouds an ostensibly entrenched legal position in uncertainty. In turn, this provides great difficulty for doctors who must act in their patients' best interests and champion confidentiality, under the threat of criminal prosecution. This is especially pertinent in light of the Commission's conclusion that health and social care professionals are more likely than other members of public to be prosecuted for providing assistance with suicide. The overwhelming conclusion is that this issue needs to be addressed.
Neutrality
In a recent move, the British Medical Journal has called for the adoption of a neutral stance on assisted dying for the terminally ill by doctors' organisations. This coincides with the launch in February 2012 of the General Medical Council's (GMC) consultation on guidance for its decision makers when considering allegations about a doctor's involvement in encouraging or assisting suicide. The GMC is clear that nothing in the guidance should be taken to imply that the GMC supports or opposes a change in the law, but that greater clarity for its decision makers is required.
Clarity
So what would a clearer framework on assisted dying look like? The Commission's report places responsibility for implementing a set of safeguards to protect patients from abuse on health and social care professionals. This would include ensuring that certain eligibility criteria are met and that the patient has been fully informed of all available options for treatment and care.
Inevitably, such a system would need to be underpinned by improvements to health and social care services including adequate training and supervision, guidance and codes of conduct for the professionals involved. Consideration would also need to be given to the inherent concern of doctors that legalising assisted dying would have a detrimental effect on the doctor/patient relationship, which is built on trust between practitioner and individual. Whilst such concerns highlight the endemic tension between providing greater clarity on the law for doctors and other professionals, and moving to a situation where doctors are at the forefront of change on an issue which raises legal, ethical and professional issues, the Commission has ultimately concluded that, should legislative change be implemented, it should not be a crime for a doctor to assist a person to take their life, if that person has an advanced, progressive, incurable condition that is likely to lead to their death within the next 12 months, and if the correct safeguards and procedures are observed.
Finally
In March 2012, Tony Nicklinson, a man with 'locked-in syndrome', won the right to ask the court to make a declaration that it would not be unlawful, on the grounds of necessity, for a doctor to terminate or assist with the termination of his life. As his case is due to be heard by the High Court, we can only speculate on the impact of a change in the law on assisted dying. What is clear, however, is the lack of clarity surrounding such an important issue as doctor assisted dying is inadequate and should not continue.
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