The right to die and assisted suicide

In recent years there has been something of a shift in public and medical opinion as to whether assisted suicide should remain completely criminal, although the debate remains highly polarised.

There have been several attempts to liberalise the law, largely by way of Private Members' Bills. The most recent of these was the Assisted Dying Bill [HL] 2014–15, introduced by Lord Falconer of Thoroton.

The Bill would have enabled competent adults who are terminally ill to request assistance with ending their lives. Requests would have been subject to oversight by both medical professionals and (following amendments moved by Lord Pannick at Committee stage) the Family Division of the High Court. The Bill did not progress beyond Committee stage in the Lords.

Previous Governments have taken the view that any relaxation of the law on assisted suicide would be a matter for Parliament to determine as an issue of individual conscience, rather than a matter of Government policy.

Pressure on the vulnerable, or personal autonomy?

The key argument made by many of those opposed to a change in the law is that ill and disabled people may feel under pressure to end their lives, perhaps because of the cost of the medical treatment needed to keep them alive, or because they do not want to be a "burden" on friends and family.

Some are also concerned that any initial legal change, however tightly drafted, could be a "slippery slope": if Parliament legalises assisted suicide for terminally ill people, how long before it extends further liberalisation of the legislation to those without any such illness?

The key argument made by those who support liberalisation of the law is based on personal autonomy. Religious views on the sanctity of life should not be imposed on everyone; patient choice is more important. Dignity in death is as important as dignity in life, and people should therefore have the right to decide the timing and circumstances of their own deaths.

Supporters of a change in the law argue that concerns about pressure on vulnerable people could be dealt with by legislating for adequate procedural safeguards, for example the consent of one or more medical practitioners, or the involvement of the family court.

What do the courts think?

In recent years, several people have brought court proceedings to challenge whether the offence of assisted suicide is compatible with human rights legislation, particularly the right to respect for private and family life under Article 8 of the European Convention on Human Rights.

In July 2009, the House of Lords, considering the case of Debbie Purdy, who suffered from multiple sclerosis, ruled that the prohibition on assisted suicide engaged Article 8 rights.

Most recently, in June 2014, nine Justices of the Supreme Court considered the case of Tony Nicklinson, who was seeking a declaration that the current law on assisted suicide was incompatible with his right to a private life under Article 8.

The Supreme Court ultimately decided by a majority of seven to two against making a declaration of incompatibility in Mr Nicklinson's case. The minority of two considered that the courts had the constitutional authority to make a declaration and should do so in this case.

Three of the majority considered that the courts had the constitutional authority to make a declaration, but should not do so in this particular case, and that in any event Parliament should be given the opportunity to consider the issue first.

The remaining four Justices considered that the compatibility of the law on assisted suicide with Article 8 was an "inherently legislative issue" that should be left to Parliament, and that the courts lacked the constitutional authority to make a declaration on this issue.

The judgment has been described by some as a shot across Parliament's bows, despite the fact that Mr Nicklinson's application was unsuccessful. This is because several of the Justices used their judgments to comment on the need for Parliament to properly address the issue of assisted suicide, whether or not it ultimately decides to change the law.

What next for Parliament?

Following Nicklinson, the ball is back in Parliament's court. Without a full debate on the issue, there remains the prospect of further court applications for declarations that the law is incompatible with human rights.

Lord Neuberger in Nicklinson:

"Parliament now has the opportunity to address the issue of whether section 2 should be relaxed or modified, and if so how, in the knowledge that, if it is not satisfactorily addressed, there is a real prospect that a further, and successful, application for a declaration of incompatibility may be made. (…) one would expect to see the issue whether there should be any and if so what legislation covering those in the situation of Applicants explicitly debated in the near future, either along with, or in addition to, the question whether there should be legislation along the lines of Lord Falconer's proposals."