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Assisted Dying: Control over the Human Body essay

Introduction

When it comes to assisted dying for humans in the UK, the law is much more complicated

and authoritarian even if it clashes with their personal human rights. As under the Suicide Act

1961, it can be seen as being very vague and complex in its meanings such as section 1 which

states suicide is no longer illegal it did not mean suicide is legal. This would confuse the

Defendant as to how to combat this activity and get their case approved when it came to

assisted suicide. However due to society's views on assisted dying changing and being

concerned that people should not be forced to dither on with life in states of advanced mental

or physical illnesses and it has been observed in cases such as Pretty v United Kingdom

(2002)1 which stated ‘for those who are greatly suffering it has become harder and harder to

die.’2 This is due to Section 2 (1) of the 1961 Act3 which expresses that encouraging or

assisting another person’s suicide remains illegal. We will also be analysing Article 8 of the

European Convention on Human Rights Act 1998 (ECTHR)4 which is the reason that

Pretty’s case was unsuccessful as it was seen that Article 8 was not engaged as her private

life was not breached, but the argument is therefore that not subjective and for Pretty to

decide if her human rights boundaries are being breached. However, due to the reluctance to

change the suicide act, it would affect certain people in society in a positive manner and

protect their boundaries in a sense of a safeguard.

1
Pretty v the United Kingdom (App no 2346/02) ECHR 29
2
Lewis P, Assisted Dying & Legal Change (1st edn, Oxford University Press 2007)

3
Suicide Act 1961
4
Article 8 European Convention on Human Rights Act 1998 (ECTHR)

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Main text

There are many advantages when it comes to the suicide act In the sense that it allows

alternatives to the appellant. Even though they may constitute assisted suicide illegal the

English law still allows for people to have control over their own boundaries by allowing the

Defendant the right to refuse treatment as the GMC’s guidance for doctors on decision

making in end of life observes, ‘A patients best interest may be interpreted as meaning that a

patient should not be subjected to more treatment than is necessary’5 this means that the

patient is able to have a peaceful and die with dignity rather than being given life-prolonging

treatment which is no use to the patient. This argument contends that while appropriate end-

of-life therapy is available, there is no reason to suffer mentally or physically. Palliative care

is an example of this. Another advantage to the suicide act is that due to English law having a

priority to keep certainty within the law this very much applies here as if English law allowed

assisted suicide for terminally ill patients, it wouldn’t be long until the law would need to be

extended even more and liberalisation of the legislation for those without life-threatening

illnesses and use illnesses such as depression as a justification for their euthanasia. This is

known as ‘the slippery slope argument’ emphasised in the national library of medicine6. This

change would also major unintentional changes to our healthcare system and create

dysfunction within society. This would cause significant damage as Walker (2000)7 states

‘there is little to stop a slide from Physician-Assisted suicide to voluntary euthanasia. So by

allowing for people to have autonomy in this cause havoc in society and as the suicide act

5
Demos (1st edn, Creative Commons 2011)
<https://www.demos.co.uk/files/476_CoAD_FinalReport_158x240_I_web_single-
NEW_.pdf?1328113363> accessed 6 May 2022

6
Benatar D. A legal right to die: responding to slippery slope and abuse arguments. Curr
Oncol. 2011;18(5):206-207. doi:10.3747/co.v18i5.923
7
Walker R (https://journals.sagepub.com/doi/pdf/10.1177/107327480100800104, 2001)
<https://journals.sagepub.com/doi/pdf/10.1177/107327480100800104> accessed 6 May 2022

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works in line with public interest this could be a reason as to why the law may not allow

autonomy in most cases. This can be highlighted in Lord Falconer’s assisted dying bill

(2015)8 which proposed to legalise assisted suicide, and not euthanasia, and although it had

many safeguards such as ‘getting signatures under two doctors’ like the Abortion Act 19679

the bill was still unsuccessful. As the 2015 bill was based on the Oregon Death with Dignity

Act10 it was seen as unrealistic as statistics show that ‘In England and Wales, 15 times more

people die each year than in Oregon. If the same amount of those selected assisted dying,

there would be thousands of cases before the high court each year.’11 The Suicide Act due to

its general standpoint and its case by case judgements works as a safeguard and protects the

rights of vulnerable members of society such as old and disabled people are opponents of a

change in the legislation argue that ill and disabled individuals may feel pressured to end

their lives, whether because of the cost of medical treatment to keep them alive or because

they do not want to be a "burden" on friends and family. This pressure may also come from

the doctors who make negative judgements on their quality of life due to the costs of

prolonging their lives and therefore increasing the risk of suicide for disabled people. They

have a fear that they would not be provided control of their rights and would instead have

their decisions made for them especially if they are told to be incapable of making such

advanced decisions due to impairments under the Mental Capacity Act 2005 and who rely on

others to be autonomous. To back this up according to a ComRes survey (www.scope.org)12,

70% of 533 disabled persons surveyed said they would be concerned if the law on assisted

suicide changed because they believe it would put more pressure on them to end their lives.

When it comes to Article 8 of the ECTHR the Law does give significance to the rights of a

human as seen in the case of Pretty v United Kingdom as the courts did clarify ‘the right to

8
Lord Falconer’s assisted dying bill (2015)
9
Abortion Act 1967
10
Oregon Death with Dignity Act 1997
11
https://www.dyingwell.co.uk/latest-report-reveals-sharp-rise-in-oregon-deaths-from-assisted-suicide/
12
https://comresglobal.com/polls/care-assisted-suicide-poll/

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private life did not include a right to die’ the court still pointed out the importance to a person

right to their own private life but in regulation and safety of others, this, therefore, shows that

the law is capable of providing a person with personal autonomy but only in a certain case by

case circumstances and by seeing the severity of the patient's case. Lastly, it is well believed

that the philosophy of the healthcare environment is health preservation, therefore by

legalising of assisted suicide and integrating it within the healthcare effect ‘would damage the

trust and relationship between patients and doctors and may harm the doctors in taking on

this role’13. This is due to the contrast of both roles and would cause distress within the

community. This would need for other medical practitioners to deal with assisted suicides.

In contrast, there are also negatives when it comes to the suicide act of 1981 and Article 8 of

the ECTHR. The first being when going back to the case of Pretty v United Kingdom showed

the gaps which were in the suicide act 1981 as she had argued ‘that there was a duty on the

DPP to publish a specific policy outlining the circumstances in which a prosecution under

Section 2 (1) of the act would or would not be appropriate’14 this would affect a humans

control over their boundaries as the law in this area needs clarifying in this area if a person

does go forward with their case as it is judged by case by case basis and the law has no

structure it is most likely that the case would be unsuccessful and in terms of Article 8 if the

appellant does go ahead with the case to the European Court of Human Rights (ECHR) their

case will fail again as the ECHR aims to go with the decision of the UK jurisdiction to keep

13
Demos (1st edn, Creative Commons 2011)
<https://www.demos.co.uk/files/476_CoAD_FinalReport_158x240_I_web_single-NEW_.pdf?
1328113363> accessed 6 May 2022

14
Demos (1st edn, Creative Commons 2011)
<https://www.demos.co.uk/files/476_CoAD_FinalReport_158x240_I_web_single-NEW_.pdf?
1328113363> accessed 6 May 2022

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certainty but this is unfair on the appellant as they do not receive the rights they deserve. In

the case of Tony Nicklinson (2014)15 came to a conclusion that article 8 hinders him and

other disabled individuals from taking control of their own lives and deaths. Individuals

should be allowed should have control over their own destinies... There is no greater ethical

dilemma than having one's right to self-determination taken away just because one’s need

assistance to die. People should be able to make their own decisions about such personal

matters; if someone with all the evidence and sound judgement think that her life is

worthless, her wishes should be respected. It is not a moral act to postpone the inevitable

against an individual's will with no benefit in the interim. Also based on this when it comes to

the matter of suffering that is a subjective matter so if an individual goes to a doctor for

assistance to end their life, then the courts must not be so harsh with the law and sympathise

with them this would allow them to feel they have control over their own boundaries. This

can be reflected in the circumstance of necessity where in the case of Re A (2001)16 and the

courts used it in a ‘unique’ if the patient suffering is unbearable but that can be seen as a

subjective matter and shouldn’t be up to the courts to categorise as to who’s suffering and

quality of life is worse than the others. Another issue when it comes to the suicide act in the

UK is due to other jurisdictions in the Europe allowing euthanasia to be legal this, therefore,

has a knock-on effect on the UK as in the case of Pretty as people are finding ways to go to

these countries to such as Switzerland to get euthanised and in most cases the patient is

physically or mentally incapable of going so they need to be assisted this therefore

automatically activates section 2 (1) of the suicide act and creates legal issues. To combat this

the views in society on the matter of assisted suicide as illegal has vanished as the religious

15
R (on the application of Nicklinson and another) (AP) (Appellants) v Ministry of Justice
(Respondent) [2014] UKSC 38
16
Re A (conjoined twins) [2001] 2 WLR 480

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viewpoint of ‘life being a gift’ has declined and people are more inclined to side with the

patient and uphold their human rights and get euthanised as they wish.

Conclusion

In conclusion, the argument for the suicide act 1981 and Article 8 of the ETCHR have a more

stronger case for the two laws this is due to it maintaining the balance of harm this meaning

the patient and the interest of the public and even though the patient’s wishes for assisted

suicide are unsuccessful this can be seen as a sacrifice that is needed this is to protect the law

from a ‘slippery slope’ and letting anyone to be able to commit euthanasia. Keeping the

Suicide Act vague and on a case-by-case basis allows for the law to protect certain members

of society from forced assisted suicide and finally, even though Section 2 (1) makes it illegal

the law still has alternative ways for euthanasia such as palliative care which as seen as a

more honourable and peaceful way to go rather than the ‘easy’ way of assisted suicide.

However, there are still flaws that the Parliament need to change such as clarifying the

wording in the act to give patients a much clearer standpoint on setting out policies. The

Parliament could legalise assisted suicide, but they safeguard to protect public interest, For

instance, one or more medical practitioners' approval, or family court involvement.

Bibliography

Cases

 Pretty v the United Kingdom (App no 2346/02) ECHR 29

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 Re A (conjoined twins) [2001] 2 WLR 480

Legislation

 Abortion Act 1967

 Suicide Act 1961

Books

 Benatar D. A legal right to die: responding to slippery slope and abuse

Websites

 https://www.dyingwell.co.uk/latest-report-reveals-sharp-rise-in-oregon-deaths-from-assisted-
suicide/
 https://comresglobal.com/polls/care-assisted-suicide-poll/