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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Specific Questions relating to this article should be addressed directly to the author.
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