Assisted Dying – Comprehensive notes
More prominent issue in recent years:
Increasing number of people face years of dependence at the end of life.
Principle of patient autonomy increasingly dominant.
Increasing number of countries/states in which assisted dying is legal.
High profile court cases (Debbie Purdy, Tony Nicklinson, Noel Conway).
Media coverage of UK citizens travelling to Dignitas in Switzerland.
Two types of assisted dying
Euthanasia: Doctor ending patient’s life due to their wishes.
Assisted suicide: Patient ending their own life but with someone else’s help.
Euthanasia
The doctor acts to kill the patient
Actus reus and mens rea of murder
o Mandatory life sentence
Difficulty in proving causation: Was it the illness or the doctor’s action who caused the
patient’s death.
o Charge may still be attempted murder
Partial defence of diminished responsibility may be available for relatives who kill, but
not doctors.
Doctrine of double effect
It is the doctrine that it is acceptable to do something for the benefit of a patient with
good intentions even if it also has the effect of shortening their life.
R v Adams: it was possible for Dr. Adams to argue that he had intended to relieve Mrs.
Morrell’s pain by administering massive doses of morphine and diamorphine –
o He is entitled to do all that is proper and necessary to relieve pain and suffering,
even if the measures he takes may incidentally shorten life”
Devlin J: If the first purpose of medicine, the restoration of health, can no longer be
achieved, there is still much for a doctor to do, and he is entitled to do all that is proper
and necessary to relieve pain and suffering, even if the measures he takes may
incidentally shorten life.
o Cf R v Woollin [1999], HL Lord Steyn: Where a man realises that it is for all
practical purposes inevitable that his actions will result in death or serious harm,
the inference may be irresistible that he intended that result, however little he
may have desired or wished it to happen.
o Williams: “There is no legal difference between desiring or intending a
consequence as following from your conduct, and persisting in your conduct with
a knowledge that the consequence will inevitably follow from it, though not
desiring that consequence”.
o Williams suggests it is artificial for doctors to think only about one consequence
of their action (reliving pain) while ignoring another (causing death).
o “a doctor who gives an overdose of a narcotic having in the forefront of his mind
the aim of ending his patient’s existence is guilty of sin, while a doctor who gives
the same overdose in the same circumstances to relieve pain is not guilty of sin,
, provided that he keeps his mind steadily off the consequence which his
professional training teaches him is inevitable, namely the death of his patient”.
o Wilkinson: points out a further difficulty with the doctrine of double effect,
namely that it relies upon knowledge of the doctor’s primary intention - “from
the ‘third person’ perspective, how are other to determine she administered
drug?”
o “it opens up the possibility of health carers abusing the doctrine and using it as a
way of ‘smuggling in euthanasia by the back door”
o As long as the drugs provided could plausibly be used as painkillers or sedatives,
it would in practice be difficult to disprove a doctor’s assertion that her principal
aim was the relief of suffering.
o Battin explains ‘terminal sedation’ may be indistinguishable from being given a
lethal injection.
Acquittal in R v Moor
R v Cox (1992), Dr Cox’s use of potassium chloride effectively ruled out the application of
the doctrine of double effect.
o Only charge to have resulted in a doctor’s conviction of attempted murder –
impossible to determine what happened to the patient as the body was
cremated, so the lesser charge was given.
Ognall J: There can be no doubt that the use of drugs to reduce pain and suffering will
often be fully justified notwithstanding that it will, in fact hasten the moment of death,
but please understand this, ladies and gentleman, what can never be lawful is the use of
drugs with the primary purpose of hastening the moment of death
o In the context of this case potassium chloride has no curative properties, it is not
an analgesic. It is not used by the medical profession to relieve pain, injected
into a vein, it is a lethal substance.
o Doctor gave something to woman who was in agony so she could die. The charge
was attempted murder. It wasn’t painkiller so it couldn't be justified under the
doctrine of double effect.
o Why should what drug you give to bring death about matter?
Tony Nicklinson
Guy who had stroke and was paralysed from the neck down.
Claim was that the common-law defence of necessity should apply to any murder charge
that may ensue following his death.
o This was how the legalisation of euthanasia began in the Netherlands.
o Died after refusing food following High Court judgment.
“By all means protect the vulnerable. By vulnerable I mean those who cannot make
decisions for themselves just don’t include me. I am not vulnerable”.
Court: it is simply not appropriate for the court to fashion a defence of necessity in such
a complex and controversial field; this is a matter for Parliament.
o Judicial process which has to focus on particular facts and circumstances before
the court is not one which is suited to enabling judges to deal competently with
the range of conflicting considerations and procedural requirements which a
proper regulation of the field may require;
, o There is a danger that any particular judicial decision, influenced perhaps by
particular sympathy for an individual claimant, may have unforeseen
consequences, creating an unfortunate precedent binding in other contexts.
They defer to Parliament as you cannot think of it as allowing assisted dying as an
individual instance, the wider effects of allowing this and how to regulate needs to be
considered by the legislator.
Assisted Suicide = the patient takes her life with someone else’s help
Suicide Act 1961, s.2(1) – A person who aids, abets, counsels, or procures the suicide of
another, or an attempt by another to commit suicide, shall be liable on conviction on
indictment to imprisonment for a term not exceeding 14 years.
s. 2(4) – No proceedings shall be instituted ... except by or with the consent of the
Director of Public Prosecutions.
o It is very unusual assisting someone to help someone do something that in itself
is legal to be criminalised.
o Why have Section 2 (4) if it is always the DPP’s discretion whether or not to
prosecute. However, this is to acknowledge that there are different types of
assisted suicide, some are worthy of prosecution, some may not be.
Pretty v UK (2002): Mrs. Pretty was diagnosed with motor neurone disease, Mrs. Pretty’s
husband was willing to help her commit suicide, but was anxious that he might be
prosecuted under s.2(1) of the Suicide Act.
o Mrs. Pretty asked the DPP to give an undertaking that they would not prosecute
Mr. Pretty, which was refused, Mrs. Pretty then sought judicial review that his
violated her Convention rights.
The law in issue in this case, section 2 of the 1961 Act, was designed to safeguard life by
protecting the weak and vulnerable and especially those who are not in a condition to
take informed decisions against acts intended to end life or to assist in ending life….
o The Court does not consider therefore that the blanket nature of the ban on
assisted suicide is disproportionate.
HL said Article 2 is not even engaged. It is unimaginable today as it is clearly engaged.
o Her argument to seek confirmation that DPP/Court will not prosecute her
husband if he helped her was going to fail
ECHR was prepared to admit that Art 8 was engaged but it was nevertheless rejected on
the grounds that a complete prohibition of assisted was not disproportionate to the
state’s concern to protect vulnerable members of society.
R (Purdy) v DPP [2009]:
Purdy argued people are going to Switzerland for assisted suicide and not all of those
who assist in doing this are prosecuted. She wanted to know the criteria DPP uses for
prosecuting.
o More modest argument.
Ms Purdy’s Art 8 rights were engaged by the DPP’s refusal to give more specific guidance
on how they exercised their decision to prosecute.
More prominent issue in recent years:
Increasing number of people face years of dependence at the end of life.
Principle of patient autonomy increasingly dominant.
Increasing number of countries/states in which assisted dying is legal.
High profile court cases (Debbie Purdy, Tony Nicklinson, Noel Conway).
Media coverage of UK citizens travelling to Dignitas in Switzerland.
Two types of assisted dying
Euthanasia: Doctor ending patient’s life due to their wishes.
Assisted suicide: Patient ending their own life but with someone else’s help.
Euthanasia
The doctor acts to kill the patient
Actus reus and mens rea of murder
o Mandatory life sentence
Difficulty in proving causation: Was it the illness or the doctor’s action who caused the
patient’s death.
o Charge may still be attempted murder
Partial defence of diminished responsibility may be available for relatives who kill, but
not doctors.
Doctrine of double effect
It is the doctrine that it is acceptable to do something for the benefit of a patient with
good intentions even if it also has the effect of shortening their life.
R v Adams: it was possible for Dr. Adams to argue that he had intended to relieve Mrs.
Morrell’s pain by administering massive doses of morphine and diamorphine –
o He is entitled to do all that is proper and necessary to relieve pain and suffering,
even if the measures he takes may incidentally shorten life”
Devlin J: If the first purpose of medicine, the restoration of health, can no longer be
achieved, there is still much for a doctor to do, and he is entitled to do all that is proper
and necessary to relieve pain and suffering, even if the measures he takes may
incidentally shorten life.
o Cf R v Woollin [1999], HL Lord Steyn: Where a man realises that it is for all
practical purposes inevitable that his actions will result in death or serious harm,
the inference may be irresistible that he intended that result, however little he
may have desired or wished it to happen.
o Williams: “There is no legal difference between desiring or intending a
consequence as following from your conduct, and persisting in your conduct with
a knowledge that the consequence will inevitably follow from it, though not
desiring that consequence”.
o Williams suggests it is artificial for doctors to think only about one consequence
of their action (reliving pain) while ignoring another (causing death).
o “a doctor who gives an overdose of a narcotic having in the forefront of his mind
the aim of ending his patient’s existence is guilty of sin, while a doctor who gives
the same overdose in the same circumstances to relieve pain is not guilty of sin,
, provided that he keeps his mind steadily off the consequence which his
professional training teaches him is inevitable, namely the death of his patient”.
o Wilkinson: points out a further difficulty with the doctrine of double effect,
namely that it relies upon knowledge of the doctor’s primary intention - “from
the ‘third person’ perspective, how are other to determine she administered
drug?”
o “it opens up the possibility of health carers abusing the doctrine and using it as a
way of ‘smuggling in euthanasia by the back door”
o As long as the drugs provided could plausibly be used as painkillers or sedatives,
it would in practice be difficult to disprove a doctor’s assertion that her principal
aim was the relief of suffering.
o Battin explains ‘terminal sedation’ may be indistinguishable from being given a
lethal injection.
Acquittal in R v Moor
R v Cox (1992), Dr Cox’s use of potassium chloride effectively ruled out the application of
the doctrine of double effect.
o Only charge to have resulted in a doctor’s conviction of attempted murder –
impossible to determine what happened to the patient as the body was
cremated, so the lesser charge was given.
Ognall J: There can be no doubt that the use of drugs to reduce pain and suffering will
often be fully justified notwithstanding that it will, in fact hasten the moment of death,
but please understand this, ladies and gentleman, what can never be lawful is the use of
drugs with the primary purpose of hastening the moment of death
o In the context of this case potassium chloride has no curative properties, it is not
an analgesic. It is not used by the medical profession to relieve pain, injected
into a vein, it is a lethal substance.
o Doctor gave something to woman who was in agony so she could die. The charge
was attempted murder. It wasn’t painkiller so it couldn't be justified under the
doctrine of double effect.
o Why should what drug you give to bring death about matter?
Tony Nicklinson
Guy who had stroke and was paralysed from the neck down.
Claim was that the common-law defence of necessity should apply to any murder charge
that may ensue following his death.
o This was how the legalisation of euthanasia began in the Netherlands.
o Died after refusing food following High Court judgment.
“By all means protect the vulnerable. By vulnerable I mean those who cannot make
decisions for themselves just don’t include me. I am not vulnerable”.
Court: it is simply not appropriate for the court to fashion a defence of necessity in such
a complex and controversial field; this is a matter for Parliament.
o Judicial process which has to focus on particular facts and circumstances before
the court is not one which is suited to enabling judges to deal competently with
the range of conflicting considerations and procedural requirements which a
proper regulation of the field may require;
, o There is a danger that any particular judicial decision, influenced perhaps by
particular sympathy for an individual claimant, may have unforeseen
consequences, creating an unfortunate precedent binding in other contexts.
They defer to Parliament as you cannot think of it as allowing assisted dying as an
individual instance, the wider effects of allowing this and how to regulate needs to be
considered by the legislator.
Assisted Suicide = the patient takes her life with someone else’s help
Suicide Act 1961, s.2(1) – A person who aids, abets, counsels, or procures the suicide of
another, or an attempt by another to commit suicide, shall be liable on conviction on
indictment to imprisonment for a term not exceeding 14 years.
s. 2(4) – No proceedings shall be instituted ... except by or with the consent of the
Director of Public Prosecutions.
o It is very unusual assisting someone to help someone do something that in itself
is legal to be criminalised.
o Why have Section 2 (4) if it is always the DPP’s discretion whether or not to
prosecute. However, this is to acknowledge that there are different types of
assisted suicide, some are worthy of prosecution, some may not be.
Pretty v UK (2002): Mrs. Pretty was diagnosed with motor neurone disease, Mrs. Pretty’s
husband was willing to help her commit suicide, but was anxious that he might be
prosecuted under s.2(1) of the Suicide Act.
o Mrs. Pretty asked the DPP to give an undertaking that they would not prosecute
Mr. Pretty, which was refused, Mrs. Pretty then sought judicial review that his
violated her Convention rights.
The law in issue in this case, section 2 of the 1961 Act, was designed to safeguard life by
protecting the weak and vulnerable and especially those who are not in a condition to
take informed decisions against acts intended to end life or to assist in ending life….
o The Court does not consider therefore that the blanket nature of the ban on
assisted suicide is disproportionate.
HL said Article 2 is not even engaged. It is unimaginable today as it is clearly engaged.
o Her argument to seek confirmation that DPP/Court will not prosecute her
husband if he helped her was going to fail
ECHR was prepared to admit that Art 8 was engaged but it was nevertheless rejected on
the grounds that a complete prohibition of assisted was not disproportionate to the
state’s concern to protect vulnerable members of society.
R (Purdy) v DPP [2009]:
Purdy argued people are going to Switzerland for assisted suicide and not all of those
who assist in doing this are prosecuted. She wanted to know the criteria DPP uses for
prosecuting.
o More modest argument.
Ms Purdy’s Art 8 rights were engaged by the DPP’s refusal to give more specific guidance
on how they exercised their decision to prosecute.
