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Memorandum submitted by Dignity in Dying (CJ 19)
Section 1: Overview of the Bill
1. Dignity in Dying supports the Government's plans to create a 'Charter for the Bereaved' and in part welcomes amendments to the Suicide Act 1961. However, we are concerned that the reforms on encouraging and assisting suicide and on partial defences to murder fall short of what is needed and will cause additional problems for terminally ill people and their loved ones.
2. Dignity in Dying is concerned that the amendments to the Suicide Act contained in this Bill fail to distinguish between malicious encouragement to commit suicide, and compassionate assistance to help a terminally ill person who wants to die to end their life. While the intention is not to widen the scope of the law, the changes to the provisions on assisted suicide may have the inadvertent effect of increasing the number of prosecutions for assisting suicide, with very negative consequences for some terminally ill people and their loved ones.
Section 2: Introduction
3. Dignity in
Dying campaigns for greater choice, control and
4. The majority of people will be able to have what they consider to be a 'good death' if they are able to access good quality, patient-centered end-of-life (palliative) care. However, palliative care cannot meet the needs of all dying patients, a fact acknowledged by the National Council for Palliative Care, the British Medical Association and Macmillan Cancer Support.[1]
5. For
those terminally ill people whose needs are not met by palliative care, there
is an understandable desire to take control over the time and manner of their
death. However, the law pl
6. Dignity in Dying's view is that in 1961 the Suicide Act was a progressive piece of legislation which aimed to treat people who attempted to commit suicide with compassion, and to protect vulnerable people. However, at present, the law fails to do this, and it should be changed to allow dying people choice, whilst protecting the vulnerable.
Section 3: The human cost of the status quo
7. The failure of the current law to provide a safeguarded choice has significant negative consequences and forces terminally ill people to look for alternatives in order to exercise control over the manner and timing of their deaths when they feel their suffering has become unbearable. The Coroners and Justice Bill presents Parliament with an opportunity to address these problems.
a) Doctor assisted dying practices
8. Research has shown that, of all deaths in the
9. This research demonstrates
that assisted dying already takes pl
b) Dignitas deaths
10. The Swiss organisation Dignitas, which helps
people with incurable illnesses to die, regularly features in the British
media. Over 725 British citizens are members of Dignitas,[4]
and more than 100 British citizens have travelled to
11. Again, there are clearly identifiable negative
consequences of the current state of the law and practice: people are forced to
die in a foreign country, away from familiar surroundings and people. Those who
travel to Dignitas with the help of loved ones fear the legal consequences for
their friends and family upon their return to the
c) 'Mercy' killing
12. Dignity in Dying believes that if there was a change in the law on assisted dying, incidences of 'mercy' killing cases would be significantly reduced.
13. Under the current law, anybody who ends the
life of another can be convicted of murder and receive a life sentence - even
if the
14. The
current situation has very negative effects on the lives of 'mercy' killers.
These range from imprisonment to long drawn-out trials and public labelling.
People who have committed an
d) Violent and botched suicides
15. Some people take matters in their own hands and attempt to commit suicide. It is impossible to estimate the number of terminally ill people who commit or attempt suicide, but anecdotal evidence shows that some do resort to suicide in order to exercise choice and control over the time of their death.
16. As a result, people are forced to die a lonely death in the absence of their loved ones, out of fear of legal consequences for anyone they asked to be present at the time of death. Some people will die a long drawn-out and painful death. Others will fail to commit suicide and possibly end up in a worse situation than they started in.
17. Furthermore, because it is illegal for anyone
to help another person to die, some people choose to commit suicide while they
are still able to do so. This means that these people die earlier than they would like to. Authorities in
Section 4: The Coroners and Justice Bill: provisions on partial defences to murder (clauses 39 to 44)
a) Diminished responsibility
18. The Coroners and Justice Bill sets out changes to the partial defence of diminished responsibility (clauses 39 and 40) which could have a significant negative impact on those people that may be described as genuine 'mercy' killers.
19. Under the current law, anybody who ends the
life of another can be convicted of murder and receive a life sentence - even
if the
20. While Dignity in Dying does not endorse 'mercy' killing or the current 'benign conspiracy', it is necessary that the law addresses these cases appropriately. We are extremely concerned that the revised definition of diminished responsibility will actually make things worse for genuine 'mercy' killers.
21. At present, 'mercy' killers who have acted in genuine response to the pleas of a terminally ill and suffering loved one, and who use the partial defence to murder of diminished responsibility, have tended to receive non-custodial sentences.
22. The proposed new definition of diminished responsibility set out in the Coroners and Justice Bill requires that to use the defence, the defendant must have a "recognised medical condition"... "at the time" of the act.
23. In addition, while the present law leaves it for the jury to determine whether the defendant's mental abnormality substantially impaired his mental responsibility, the proposed new criteria are far more specific: the defendant's abnormality of mental functioning must have substantially impaired his ability: (i) to understand the nature of his conduct; OR (ii) to form a rational judgment; OR (iii) to exercise self-control.
24. This new definition would not help a person who
eventually concedes to persistent requests from a terminally ill and suffering
loved one to help them die, if their help can be shown to be rational - i.e. if
they understood the consequences of their
b) Provocation or loss of control
25. The Coroners and Justice Bill also makes changes to the definition of the partial defence of provocation (clauses 41 to 43), which would exclude it from use by someone who has acted in genuine response to the pleas of a terminally or seriously ill loved one for help to die.
26. Dignity in Dying accepts that the rationale for changing the partial defence of provocation is sensible, and largely in response to problems with the use of the defence in relation to gender roles and domestic violence cases.
27. However, we want to draw attention to the fact that this defence would also be impossible for a genuine 'mercy' killer to use under the proposed changes, as it requires that the "qualifying trigger" for the "loss of control" must have arisen from things said and/or done which "caused the defendant to have a justifiable sense of being wronged". There is no sense in which a person who finally gives in to a terminally ill loved one's pleas for help to die after months or even years of requests could have had a "justifiable sense of being wronged" as a "trigger" for their action.
28. Therefore under the proposals put forward in the Coroners and Justice Bill there are no partial defences open to use by genuine 'mercy' killers.
c) Impact of the proposed changes to partial defences to murder
29. The changes to both partial defences to murder follow the Law Commission report, Murder, Manslaughter and Infanticide (2006). However, the Government has not implemented all of the Law Commission's recommendations. The report calls on the Government to "undertake a public consultation on whether and, if so, to what extent the law should recognise either an offence of mercy killing or a partial defence of mercy killing".[10] The report also states "the question whether there should be a partial defence of mercy killing raises many of the same issues raised by the debate as to whether [voluntary] euthanasia should be legalised".[11]
30. The likely impact of the changes to the partial defences demonstrates the dangers of a piecemeal approach to law reform. The Law Commission's proposals in relation to defences to murder were predicated on a review of the law relating to 'mercy' killing. Because this has not happened, a bad situation - the legal fudge of the 'benign conspiracy' - will be made worse.
31. If these proposals go ahead, a genuine 'mercy' killer will have no defence available to them. Diminished responsibility, which might formerly have been an option, would compel a jury to find a 'mercy' killer guilty of murder, if they understood the consequences of their actions. The result will be that many genuine 'mercy' killers face mandatory life sentences. If the review proposed by the Law Commission had taken place and either a separate offence or defence of 'mercy' killing had been created, then the changes to diminished responsibility would not have resulted in this illogical position.
32. Dignity in Dying is extremely concerned that the revised partial defences to murder will actually make things worse for genuine 'mercy' killers and seriously impact upon their human rights. Although challenges to the mandatory life sentence for murder on grounds of breach of ECHR Articles 3 and 5 have failed in the past, it may be arguable that a change in the law that would expose 'mercy' killers to the mandatory life sentence, when previously a partial defence of diminished responsibility or provocation would have reduced their liability to manslaughter, would amount to a breach of Article 3.
33. Furthermore, Dignity in Dying believes that as well as having extremely negative effects for genuine 'mercy' killers, exposing these people to mandatory life sentences could significantly reduce public confidence in the law.
34. Professor Barry Mitchell, Professor of
Criminal Law and Criminal Justice,
35. In his report on the 2005 survey, Professor Mitchell devoted a section to what he termed "the perennial problem of mercy killing". He said this:
".. the groups considered the
familiar question of how the criminal justice system should regard and respond
to mercy killing. It was invariably
36. This disparity between the proposals' likely effects and public opinion once again suggests that the Ministry of Justice will struggle to meet its own aim: to ensure that the law in this area is just, effective and up-to-date, and produces outcomes which command public confidence. The public will not be confident in a law that treats genuine 'mercy' killers harshly.
37. If the Government is to ensure that the law
is "just, effective and up-to-date" and that it commands "public confidence", Dignity in Dying
believes that it must address the f
d) Recommendation
38. Dignity in Dying does not condone 'mercy' killing. We believe that a change in the law to give a terminally ill, mentally competent adult, who is suffering unbearably, the choice of an assisted death, would substantially reduce the number of 'mercy' killings.
39. However, we are concerned that the proposed
change to the definition of diminished responsibility when combined with the l
Section 5: The Coroners and Justice Bill: amendments to the Suicide Act (clauses 46 to 48)
40. Clauses 46 and 48 of the Coroners and Justice Bill amend the Suicide Act 1961, in light of the Byron Report (Safer Children in a Digital World), with the aim of modernising and simplifying the law without changing its scope. This is in order to make it clear that it is illegal to encourage suicide via the internet (or elsewhere).
41. Dignity in Dying welcomes the Government's efforts to better protect young and vulnerable people who may be encouraged to commit suicide by others, whether this is done via the internet or by other means. However, the Government's reforms fail to address a wider problem with the law, which is that at present (and as proposed) the law fails to distinguish between those who maliciously encourage suicide and those who compassionately assist the death of a terminally ill, mentally competent adult who is suffering unbearably.
a) Proposed changes to the Suicide Act
42. It is clear that there are significant problems with the Suicide Act at present, in that it prevents some terminally ill people from having the legal option of choice in the timing of their death, and as such, may cause them to have to ask their loved ones to put themselves at risk of prosecution to help them die (as outlined in paragraphs 7 to 20 of this paper).
43. Dignity in Dying is disappointed that the Government has not taken this opportunity to look at ways in which these problems could be better handled by the law. However the proposed changes also raise the question of whether those who assist the suicide of a terminally ill loved one will be treated more harshly under the proposed law than they are at present.
44. The Government has stated that the changes
around assisting a suicide represent only a change in language, not scope, as
clauses 46 and 48 simply bring together the crimes of assisting a suicide as
set out in the Suicide Act 1961, and attempting a criminal
b) Effects of the proposed changes
45. However, it is arguable that the scope of the law under the proposed provisions will be expanded. As far as Dignity in Dying is aware, the Criminal Attempts Act has only been considered in the context of the crime of assisting a suicide in one case. Even then, this was in the context of a declaratory judgment sought by the Attorney-General to clarify the state of law and did not result in any prosecution.
46. By bringing together
the offences of assisting a suicide and the little-known offence of attempting
to assist a suicide, and explicitly stating in statutory law that encouraging a
suicide is a crime, it does seem likely that more people will be prosecuted. With
no distinction between different types of encouragement and assistance to
commit suicide in the Bill, and no definition of what constitutes encouragement
(e.g. does not discouraging someone count as
47. It is worrying that the Government has not taken the opportunity to give serious consideration to the problems the current law on assisting suicide raises for some terminally ill people and their loved ones, particularly as it could be argued that revised provisions change the scope of the law, as well as its language.
48. Another area of concern is that under the
proposed revisions, the law does not differentiate between malicious
encouragement and compassionate assistance. This means that somebody who
49. This lack of differentiation around the types of assisted suicide that may take place is very worrying and could have damaging effects for some terminally ill people and their loved ones. As pointed out in paragraph 11, some terminally ill people choose to go abroad to die earlier than they want to, whilst they are still able to make the arrangements alone, in order to protect their loved ones from prosecution for helping them. The proposed clauses, which are arguably broadening the scope of the law, could accentuate this trend.
50. In a recent interview with the Times, the Director of Public Prosecutions said that if the law was revised to clarify categories of offence "that obviously means everyone is in a better position, but that is not in my gift, that is for Parliament".[14]
51. There is clear public support for a change in the law on assisted dying for terminally ill people: 80% of the population favour of a change in the law[15]. By failing to address public concerns in this area, and leaving the threat of imprisonment over those people that assist the suicide of a terminally ill loved one (even by simply accompanying them to a jurisdiction where it is legal for them to be assisted to die) the Government again risks damaging public confidence in the law.
52. Furthermore, an argument could be made that by denying terminally ill people choice and control over when they die without a basis in law which is sufficiently clear, predictable and transparent, and by criminalising any friends or relatives who help them die, the Government could be contravening their ECHR Article 8 rights.
b) Recommendation
53. Parliament should reform the law so that
different
Section 6: Conclusions
54. The Law Commission has made clear recommendations that 'mercy' killing and related issues including assisted suicide need to undergo a full review before any changes can be made to the law in these areas.
55. By ignoring this advice and instead taking a
piecemeal appro
56. If the Government and Parliament wish to proceed
with reforms as outlined, full consideration needs to be given to the current
problems with the law and the wider imp
57. If the Coroners and Justice Bill goes ahead as outlined Government risks infringing the human rights of some terminally ill people and their loved ones, whilst seriously undermining public confidence in the law.
February 2009 [1] National Council for Hospice and Specialist
Palliative Care (now known as the NCPC), http://www.hospice-spc-council.org.uk/publicat.ons/text/euthanas.htm
in 1997: "Universal availability of excellent palliative care services will not
and can never eliminate all such rational and persistent requests for
euthanasia...", British Medical Association, Medical Ethics Today: The BMA's
handbook of ethics and law, 2nd Ed., BMA Publishing Group M [2] C. Seale, "National survey of end-of-life
decisions made by [3] Emanuel L (2000) Attitudes and Desires Related to Euthanasia and Physician-Assisted Suicide Among Terminally Ill Patients and Their Caregivers. JAMA 284: 2460-2468, and Oregon Department of Human Services: http://egov.oregon.gov/DHS/ph/pas/docs/year10.pdf, 2008. [4] http://news.bbc.co.uk/1/hi/uk/7732640.stm, 2008. [5] http://news.bbc.co.uk/1/hi/uk/7732640.stm, 2008. [6] Home Office, Homicide victims where the circumstances were described as a mercy killing, 2005. [7] Home Office, Homicide victims where the circumstances were described as a mercy killing, 2005. [8] http://www.dignityindying.org.uk/news/news.asp?id=196, 2006. [9] The Law Commission Report No. 290, Partial Defences to Murder, August 2004, page 17. [10] Report 304: Murder, Manslaughter and Infanticide, The Law Commission, (2006), p155. [11] Report 304: Murder, Manslaughter and Infanticide, The Law Commission, (2006), p151. [12] The Law Commission Report 290, Partial Defences to
Murder, Appendix C: Brief Empirical Survey of Public Opinion relating to
Partial Defences to Murder, August 2004, and The Law Commission Consultation Paper 177, A New
Homicide Act for [13] The Law Commission Consultation Paper 177,
A New Homicide Act for [14] http://business.timesonline.co.uk/tol/business/law/article5515636.ece, The Times, 2009. [15] Clery E, McLean S, Phillips M (2007)
Quickening death: the euthanasia debate. In: Park A, Curtice J, Thomson K,
Phillips M, Johnson M, eds, British Social Attitudes: the 23rd Report -
Perspectives on a changing society. Sage, |