Abandoned To Principle: An Overview of the Law on Euthanasia and Assisted Suicide in the UK and Ireland, and the Case for Reform

• Author: Nicholas Liddane
• Position: BCL (UCC), LLM (Commercial Law) (candidate) (UCD)
• Pages: 79-103

[2013] COLR

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ABANDONED TO PRINCIPLE: AN OVERVIEW OF THE LAW ON

EUTHANASIA & ASSISTED SUICIDE IN THE UK AND IRELAND, &

THE CASE FOR REFORM

Nicholas Liddane*

ABSTRACT

The recent Irish High Court decision of Fleming v Ireland, currently on appeal to the

Supreme Court, is a timely invitation to review the current state of the law on euthana sia and

assisted suicide in the United Kingdom in Ireland. This article critically discusses the

seminal cases in the United Kingdom and Ireland in the area of assisted suicide and

euthanasia, positing that efforts to uphold the traditional ban on these practices while, in

reality, issuing case-specific exemptions, results in an unwarr antedly ambiguous legal

landscape. In particular, this article criticises the recent Irish High Court’s decision in

Fleming v Ireland having regard to its position on the issuing of DPP offence-specific

guidelines. This ar ticle then proceeds to assess the pertinent issues affecting euthanasia and

assisted suicide through the lens of the sanctity of life argument, and empirical evidence from

a number of other jurisdictions. Finally, this article proposes tentative legislative reform to

facilitate limited euthanasia and assisted suicide in Ireland. Euthanasia and assisted suicide

are br oad terms. For the purposes of this article, euthanasia is to be understood as non-

voluntary/passive euthanasia, i.e. where an individual is unable to express his/her wishes, for

reasons such as persistent vegetative state. Assisted suicide is to be understood as aiding an

individual to commit suicide, either by providing the means to do so, or accompanying the

individual to a jurisdiction in which such practices ar e legal.

A INTRODUCTION

The right to choose to eliminate pain and suffering, and to die with dignity at

the time and place of our own choosing when we are terminally ill is an

integral part of our right to control our own destinies.

1

Suicide is not a legal wrong; however, assisting in the suicide of another is an offence.2 The

moral premise justifying the offence is that ‘the doing of a positive act with the intention of

ending life is and remains murder.’3 The offence does not reflect the realities of cases where,

in practice, ‘compassion’ now often mitigates culpability for suspects. 4 The opening

quotation, proclaimed in a draft statute rejected by the Californian electorate in 1992,

*BCL (UCC), LLM (Commercial Law) (candidate) (UCD).

1 R Dworkin Life’s Dominion: An Argument about Abortion, Euthanasia and Individual F reedom (Harper

Collins 1993) 180.

2 Criminal Law (Suicide) Act 1993 s 2(2).

3 Airedale NHS Trust Ltd v Bland [1993] AC 789, 885 (Lord Browne-Wilkinson).

4 The Policy for Prosecutor s in Respect of Cases of Encouraging or Assisting Suicide sets out relevant

considerations for potential liability in encouraging or assisting suicide, pursuant to the ruling of the Hou se of

Lords in R (Purdy) v DPP [2008] EWHC 2565 (QB).

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encapsulates one of the cornerstones of the argument to respect an individual’s choice in

relation to end of life decisions. End of life jurisprudence is gradually beginning to reflect

less conservative attitudes about the ‘extent to which we should respect the patient’s

autonomy ... the choice about how we are to live and how we are to die.’

5 However, this

development is not a corollary of the current law on euthanasia and assisted suicide. In light

of recent developments, such as the plight of the late Tony Nicklinson in England,6 and in

particular the recent High Court pronouncement in Fleming v Ireland,7 this article is intended

to be a timely overview of the law currently in place in this area in the United Kingdom and

Ireland at the moment.

This article will argue that the law should place limited restrictions on an individual’s

freedom of choice in respect of end of life decisions, and that this should be done through

legislation that adopts a permissive attitude towards these decisions. It will be demonstrated

that the current legal situation in Ireland and the United Kingdom has the tendency to prolong

suffering for individuals in end of life situations. In Part B, the article will examine the

development of the law on euthanasia and assisted suicide in the United Kingdom and

Ireland, through analysis of the seminal case law, noting the corresponding exceptions carved

out to the ‘blanket prohibition’. Thereafter, Part C will outline the pertinent issues affecting

both English and Irish law as a result of the rulings in R (Purdy) v DPP and Fleming v

Ireland in relation to DPP prosecutorial guidelines. Part D will briefly outline the traditional

criticisms of euthanasia and assisted suicide grounded in the sanctity of life argument. Part E

will look at the argument of the ‘slippery slope’, drawing on legislation and statistics from

other jurisdictions to expose the inconsistencies with this argument against liberal legislative

reform of euthanasia and assisted suicide.8 Part F will conclude by discussing the potential

for legislative reform in Ireland.

5 R (Burke) v General Medical Council [2004] EWHC 1879 (Admin) 2 (Munby J).

6 < http://www.guardian.co.uk/uk/2012/aug/22/tony-nicklinson-dies-right-to-die > acc essed 5 March 2013.

7 Fleming v Ireland & Or s [2013] IEHC 2. The full judgment is available at < www.courts.ie > At the time of

writing, this case was currently on appeal to the Supreme Court, specifically contesting the proportionality of

the absolute ban on assisted suicide. Accessed 5 March 2013

8 Part D and Part E will be based on general moral arguments in this area; the ar guments advanced in Fleming

having regard to the evidence from the Netherlands and Belgium in Ca rter v Canada [2012] BCSC 886 will be

addressed briefly.