Euthanasia is the process whereby an individual actively takes the life of another while assisted suicide is the act whereby an individual helps another, who wants to end his life, by either taking him somewhere where it can done or by providing him with the lethal medication.1 Physician-assisted suicide (PAS) is the process whereby a doctor will act as guidance throughout the process for the patient to whom he will prescribe the lethal medication.2
A number of high profile cases, including Purdy3, Pretty4 and most recently Nicklinson5, have put some pressure on the Parliament to clarify this grey area of the law. Due to its complexities in the legal6, ethical7 and medical areas8, assisted suicide is a very contentious subject.
1 Coroners and Justice Act 2009, s59 (amended s2 of the Suicide Act 1961). 2 John Keown, Euthanasia, Ethics and Public Policy: An Argument Against Legalisation (Cambridge University Press, 2002) 30-32.
3 Regina (Purdy) v Director of Public Prosecutions [2009] UKHL 44-47. 4 Pretty v United Kingdom [2002] ECHR 426
5 Nicklinson v MoJ [2012] EWHC 304 QB.
6 Keown n(2) pp 57-602.
7 Smith, ‘Evidence for the Practical Slippery Slope in the Debate on Physician- Assisted Suicide and Euthanasia’ (2004) MLR 16-18.
8 Bartlett Peter ‘The Consequences of Incapacity’ (1997) WJCL issue 4.
The aim of this research paper is to answer the question of whether or not it is possible for the physician and vulnerable persons to escape the pitfall of the slippery slope, where people are euthanized against their will?
In order to be in measure to answer this question we will have to go through the four chapters in which this research paper is divided. Chapter one will help us to make a point on where the current law stands today and whether the importance of autonomy in PAS has being recognised by the court and state. The aim Chapter two is to find out whether a balance can be found between the state and personal autonomy to protect vulnerable individuals. If not, whether a physician can step in as an independent 3rd party to preserve autonomy. In Chapter three, I will analyse the practical element of the slippery slope to find out whether the safeguards would be efficient in practice or not. Finally Chapter four, where I will extract what should be noted from the Dutch approach in order not to make same mistake as the Netherlands.
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4. Chapter 1:Evolution of the law on Physician-Assisted suicide “PAS”
4.1 Introduction
Personal autonomy is crucial when comes to Physician-Assisted suicide and may be the major reason in favour of legalisation of PAS.9 The notion of patient autonomy is the idea that an individual must have control over certain aspects of his life and in our case, deciding when to bring an end to his life.10 Personal autonomy is a contentious subject as it covers the legal, medical and ethical areas of society. On one side the state has an interest in preserving life and on the other side, since we are living in a democratic society, it has been argued by many that the state has a moral duty to promote personal autonomy in law.11
The aim of this Chapter is to find out how the PAS debate started and most importantly whether the importance of personal autonomy in the PAS process has been recognised by the courts and the State. To be able to answer to
9 Donchin Anne ‘Autonomy interdependence and assisted suicide: respecting boundaries/crossing lines’ (Bioethics, 2000) p185-205.
10 Coggon John ‘Ignoring the moral & intellectual shape of the law after Bland: the unintended side-effect of a sorry compromise’ (Legal Studies, 2007) 109- 127.
11 Horacio Spector, Autonomy and Rights: The Moral Foundations of Liberalism (Oxford University Press, New York, 2007) 1-5.
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these questions I will firstly analyse the High-profile cases of Purdy12 and Pretty13 with respect to the DPP and the ECHR. Secondly I will analyse how the parliament reacted to these cases with reference to the DPP policy.14 Thirdly, I will analyse the All Party Parliamentary Group (APPG) draft bill ‘Choice at the end of life’ which promotes personal autonomy to a significant extent.15 Finally I will conclude.
4.2 Development of the law
Parliament has been pressurised, by a number of recent high-profile cases, to clarify the law regarding assisted suicide. Purdy16 is regarded as being the breakthrough case. In this case it has been agreed by the Judges that the DPP must produce a policy detailing the criteria that must be satisfied in order to decide whether or not an individual, who assist another to take his own life,
12 Purdy (n3) 43-5. 13 Pretty (n4) 428-9.
14 The Director of Public Prosecutions ‘Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide’ (Feb 2010) < http://www.cps.gov.uk/publications/prosecution/assisted_suicide_policy.html> (accessed 9/01/17).
15 Choice at the End of Life All Party Parliamentary Group, ‘Safeguarding Choice’, A Draft Assisted Dying Bill for Consultation (2012) < http://www.appg-endoflifechoice.org.uk/pdf/appg-safeguarding-choice.pdf> (accessed 10/01/17).
16 Purdy (n3) 44-5.
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will be prosecuted.17 The policy was produced by the DPP in 2010.18 Returning to the Purdy case, she was concerned that if her husband assisted her in dying he might end up being prosecuted under s.2(1) of the Suicide Act 1961.19 Since at that time the DPP refused to produce a policy listing the requirements that have to be met to be prosecuted under s.2(4) of the Suicide Act 1961, Purdy thought Judicial review on the basis that the law lacks clarity. The second part of her claim was that the law breached, Art 8(1) of the ECHR, her ‘right to respect for private life’. She believed that she should have the right to decide, as a terminally ill patient, when to bring her life to an end, should she wish. The House of Lords made reference to the Pretty20 case after recognising that Art 8 in fact guarantees the self-determination right.
The Pretty21 case has shed some light on the judicial interpretation regarding the concept of personal autonomy, with respect to the European Convention of Human Right. It has been held by the ECtHR that the law in England and Wales were violating autonomy as it was preventing individuals from choosing
17 Rob Heywood, ‘R. (on the application of Purdy) v DPP: clarification on assisted suicide’ (2010) 126 L.Q.R. 4-7.
18 DPP Policy (n14).
19 Purdy (n3).
20 Pretty (n4) 798-800. 21 Pretty (n4) 426-8.
when to bring an end to their lives, to avoid a distressing and undignified death.22
The current law has been severely criticised by Baroness Hale in Purdy highlighting the court’s emphasis on the significance of autonomy in such compassionate circumstances. She argued that the state must urgently address this issue, as ‘the deterrent effect of a prosecution would be a disproportionate interference with the autonomy of the individual who wishes to bring her life to an end’.23
The case law clearly demonstrates the perspective of the court on autonomy. The question, which arises, is whether the policies and proposals have paved the way for autonomy. It is in this direction that the research paper now turns.
4.3 Policies and Proposals
As a reaction to critics by the Lord Justices in Purdy, the DPP has produced a policy, consistent with Purdy, listing the factors that will and will not lead to prosecution where an individual has assisted another to die.24
22 Ibid para 67.
23 Purdy (n3) 424-6 (Hale). 24 DPP policy (n14) para 6.
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Although much emphasis has been placed on autonomy, it can be argued that since the prosecutorial guidelines includes qualifying factors regarding the physical condition of a patient, the parliament has not ratified autonomy in its complete sense as there is a tension between stipulating when an individual is suffering enough, to qualify for assisted suicide, and protecting autonomy.25 This compromise is the main issue when it comes to Physician-assisted suicide and patient autonomy because while on one side patients may need protection for themselves, on the other side respect should be given to personal autonomy.
The All Party Parliamentary Group produced a Bill on ‘Choice at the end of life’ for consultation in 2012, which places much more emphasis on autonomy. The APPG Bill proposes a safeguarded legal process where physician in the PAS process can assist terminally ill patient in controlling the timing and manner of their death.26 This stresses the unavoidability of autonomy in the scenario of assisted suicide. s.1(1) of the Bill tells us that provided that if the patient is terminally ill, the latter may request and be lawfully provided with assistance to bring his life to an end.27 The word request clearly tells us that only the patient in question can decide whether to start the process or not. In order to facilitate this request, a signed declaration has to be made as per s.3
25 Neil M. Gorsuch, The Future of Assisted Suicide and Euthanasia (Princeton University Press, 2006) 95-8.
26 APPG Bill (n15) p7-9. 27 Ibid s1(1).
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of the Bill. To ensure that the patient has truly provided an autonomous decision without being pressurised, the Bill has provided an additional safeguard which is a second independent doctor to validate the declaration signed by the patient. This additional safeguard is primordial as it allows for the assessment of a second medical opinion on the capacity of the patient to make a decision, diminishing the risk of the patient providing consent under duress.28 In addition, after a declaration has been made; the patient still has the possibility to cancel it within the next 14 days.
Prima facie, it looks like APPG Bill promotes and protects personal autonomy in its fullest sense. However is that, just like with the DPP Policy for Prosecutors, we can argue that APPG Bill in fact does not promote autonomy in its fullest sense because the terminal illness requirement encumber autonomy. Nevertheless this requirement can be justified on the basis that some limit on those who qualify for Physician-Assisted suicide had to be provided to prevent over flooding. The question that we have to ask ourselves is how should ‘terminal illness’ be interpreted. It is true that the Bill provides some assistance on what is encompassed by terminal illness but it nevertheless lacks the clarity and certainty which is primordial in situations where lives of people matters.29
28 Ibid s3(3)(c). 29 Ibid s2.
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4.4 Conclusion
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To conclude, personal autonomy plays a vital role in the Physician-Assisted suicide process. This is because the whole process revolves around the patient’s choice on whether or not to end their life, while the doctor’s role is merely to assist the patients with his medical expertise. It is for this particular reason that legislating in favour of PAS has been protested. Equally it is the same reason that vitalises the sceptics. Unfortunately patient autonomy brings with it numerous potential lethal pitfalls such as mental capacity and duress, which need to be addressed in assessing the value of autonomy. To counter these issues, the APPG Bill has implemented a number of safeguards which must be included in any future reforms in order to defend and preserve autonomy of a patient. Since there are numerous factors that can hinder the true nature of personal autonomy, as it is a subtle and sensitive concept, there is a risk that vulnerable people might be exposed to the dangers of the slippery slope.
5. Chapter 2: Autonomy vs state protectionism
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5.1 Introduction
The aim of this Chapter is to find out whether a balance could be found between individual autonomy and state protectionism to protect the vulnerable of the society against the dangers of the slippery slope (which we will see later). However if a balance cannot be found, I will analyse whether physicians acting as an independent 3rd party can overcome this balancing issue. I will then investigate whether this relationship has been promoted by proposals. Finally I will conclude.
5.2 Autonomy as a potential safeguard?
Autonomy is important in the context of assisted suicide. It has been argued that once assisted suicide is legalised there is a risk that patients might be pressured by people close to them and exploited, for example by compromising alternate treatments available to them, for economic reasons.30 Thus eventually leading down the slippery slope. An example to illustrate this argument is the unreported 2011 Dutch case whereby a woman suffering from a progressive brain degeneration disease was euthanized despite the fact that she did not express her desire to die.31
30 Saunders P ‘Why Euthanasia should not be legalised’ (1995) C.M.F.
31 Smith W ‘What’s Choice Got to Do with Dutch Euthanasia’ National Right to Life News (2011).
Nicklinson, who wanted to end his life in a legal way, argued that it would be impossible to escape the slippery slope to involuntary euthanasia if personal autonomy is not preserved.32 Without personal autonomy, a patient welfare is unfortunately at the mercy of State and the courts.33 I concur with Nicklinson argument because it makes sense to me that the state might want to euthanized sick or elderly patients for economic reasons. Hence the vulnerable patient sake, without personal autonomy, will be dependent on the state’s political and economic influences.
With the aim to preserve autonomy, Justice Charles took into consideration Nicklinson argument in deciding Re A case by giving greater weight to the importance of the right to choose.34 Yet Re A case cannot be used as a binding precedent that gives a legal duty to preserve autonomy because of the niche facts of the case. From what has been said, regarding the balancing of personal autonomy against the state’s responsibility to protect lives, it is clear that clarification is required in the form of legislation or legal precedent.35 This is because the effectiveness of personal autonomy as a safeguard is
32 Nicklinson (n5).
33 Lewis P ‘Assisted Dying and Legal Change’ (Oxford University Press,
2007).
34 Re A children conjoined twins: surgical separation [2000] 4 ALL ER 960-4.
35 Huxtable Richard D(en)ying Life: ‘The Sanctity of Life Doctrine in English Law’ (2002) 14(3) Retfoend 60-9.
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questionable in the absence of a clear-cut understanding of the protection that autonomy can provide to individuals.
5.3 Problem with autonomy
Prima facie, by making sure that individuals can decide for themselves can be a clear solution towards the fear that euthanasia can be forced onto those who do not want it.36 However attention should be paid on factors linked with personal autonomy such informed consent and best interest of patient.37 Why? Because for example how can we ensure that the patient in coma has provided informed consent when the latter is in an unconscious state? How can we sure that the physician is acting in the best interest of the patient?
The antithesis of autonomy is state paternalism. State paternalism is viewed by many as a form of dictatorship.38 On one side there is a group of people who believe that they must have the right to choose the timing and manner of their death while on the other side some people advocate why the legalisation of assisted suicide must be reserved only to patients who have full mental
36 Coggon John ‘Ignoring the moral & intellectual shape of the law after Bland: the unintended side-effect of a sorry compromise’ (2007) Legal Studies 109- 126.
37 Taylor James Stacy ‘Practical Autonomy and Bioethics’ (Routledge, 2009).
38 Stewart C ‘A test for mental capacity to request assisted suicide’ Journal of Medical Ethics (2011) vol 37.
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capacity as some patients may lack in mental capacity to take their own decision.39 Who is going to decide what is best for them, with respect to being euthanized or not, if they cannot provide consent? Won’t they be at the mercy of the state?
Keown argues that unregulated autonomy can lead to ‘tragic consequences’.40 An example to illustrate this argument is if X is suffering from depression and goes to a physician telling him that he wants to opt for euthanasia. Should his autonomous decision be respected and given effect? Wouldn’t it go against the ethics and values of medical professionals? It is clear that a number of ethical and medical questions are raised which certainly needs to be addressed. It must also be noted that giving greater weight to personal autonomy in an attempt to balance the right to choose of individual against the state’s duty to preserve life can be dangerous.
Since giving greater importance to individual autonomy can be dangerous, maybe greater weight should be attributed to the state. The Parliament is bound to limit the liberty of its citizen to a certain extent due to its legitimate aim of protecting the society on a whole hence protecting those who are being coerced or lack mental capacity.41 This can be opposed by the argument that
39 Herring J ‘Protecting Vulnerable Adults’ (2010) Oxford Legal Studies Research Paper No 10.
40 Keown (n2) at 53.
41 Cohen-Almagor ‘The Quality of Life Argument in Medical Ethics A Critical View’ (2000) Vol. 21 p115- 138.
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too much protectionism by the state can disturb the development of independent character of the individuals.42
I do agree with both arguments to a certain extent that one must have the right to choose when to end his life but at the same time state protectionism is important to protect those who are unable to decide for themselves. Therefore what is clear is that without a balance between state paternalism and personal autonomy, the vulnerable are not going to be protected from the slippery slope.
5.4 Is informed consent an effective safeguard to preserve autonomy?
One-way of protecting patients from being intimidated or deceived is by requiring informed consent.43 This requirement will allow patients to be sufficiently informed of the procedure and the side effects associated with it. As such this requirement has the potential of preserving the patient’s autonomy to a certain extent.
It can be argued that consent is a little more that a formality as most of the time a patient will accept the treatment recommended to him by the physician.
42 Mill J S ‘On Liberty’ (Oxford University Press, 1991) p14.
43 O’Neil, ‘Autonomy and Trust in Bioethics’ (Cambridge University Press, 2002).
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This is because patients have the tendency to think that it is the best choice for them.44
By attributing no more significance that a mere formality to the importance of consent can be disheartening to the notion that the informed consent requirement may overcome one of the problems linked with giving too much weight to patient autonomy in the balance against state paternalism.
Balancing state paternalism and personal autonomy via the consent requirement is clearly not an effective answer to the problem because as greater importance is attributed to autonomy, it is likely that the requirements for consent will become harsher.45 The repercussion of these stricter requirements is that less people will qualify, as being competent and having the mental capacity to consent and subsequently state paternalism will prevail, marginalising the autonomy.
5.5 Informed consent and unconscious state?
Another issue is that any protection that the informed consent requirement, with the aim of preserving personal autonomy, may have provided would be
44 Wolpe , ‘Ethics and complementary modalities Encyclopaedia of Complementary Health Practices’ (Springer Publishing Co New York, 1998).
45 Herring J ‘The Caesarean Section Cases and the Supremacy of Autonomy’ (OUP, 2000).
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invalid in the scenario where patients are in an unconscious state as they will not be able to provide their informed consent.
It has been ruled in the case of W v M46 that cases which involves life prolonging treatment and patients whose level of consciousness is minimal, must be referred to the Court of Protection whereby a practice direction document is followed when it comes to critical medical treatment.47 Since the document is non-exhaustive, the decision on whether the treatment is regarded as critical is subjective to the patient condition.
If a patient lacks mental capacity or cannot provide informed consent because of his state, the directions on the document tells us that it is legal for a treatment to be performed by a physician if it has been declared to be in the best interest of the patient.48 Therefore these guidelines clearly disregard personal autonomy.
Manifestly, just like state paternalism, medical guidelines are also a threat to autonomy as it marginalises personal autonomy at the expense of the concept of best interest.
Despite the fact that personal autonomy may be further marginalise by the impact of physicians as a 3rd party, it can be argued that better medical
46 W v M and Others [2011] EWHC 2441-5.
47 Direction 9E of the rules of the Court of Protection 2007. 48 Ibid.
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regulation and supervision can circumvent concerns regarding the balancing autonomy and assist in helping the vulnerable in escaping the slippery slope.49
To conclude, informed consent is not an adequate safeguard against the slippery slope because it has in fact noteworthy imperfections and restraints. The main flaw of this safeguard is that it cannot protect the autonomy of patients who are unconscious. However the concept of best interest, regulated by medical professionals, can act like a bridge between the patient and the state.
Moreover both the interest of the patient and State’s duty regarding the preservation of life may be safeguarded by relying on Physicians acting as a 3rd, impartial to the patient and the state. It is in this direction that this research paper now turns.
5.6 Physician as a balance?
Despite having the required medical expertise, it can prove to be difficult for doctors to know the wishes and religious values of the patient.50 Therefore it can be argued that due to this lack of information, physicians may marginalise personal autonomy in deciding what is in the best interest of the unconscious
49 Herring J, ‘Medical law and ethics’ (4th edn OUP, 2012) pp 147-222, 470- 565.
50 Veatch R, ‘The Basics of Bioethics’ (2000) Upper Saddle River NJ Prentice- Hall.
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patient. As such if the concept of best interest is undermining personal autonomy to such a degree, relying on it to protect vulnerable patients against involuntary euthanasia may not be a good idea.
To overcome issue regarding the values and wishes of the patient, maybe we can rely to a certain extent on the patients’ close family members to decide what is in the best interest for them.51 This may not be a good idea because if a patient is suffering from a terminal illness for months with little chance of recovery and is facing an upcoming painful death, the relatives may decide not to opt for assisted suicide because of their own religious beliefs. Therefore in deciding on who must decide on the patient’s behalf regarding his best interest can be a controversial subject. Also a doctor might a better evaluator, as he is not emotionally attached to the patient.
Furthermore by assessing a patient’s mental capacity, which is a legal task, we can establish whether or not informed consent has been given. The test for mental capacity is set out in the case of Re B.52 It can be argued that since physicians are not legally trained, they may struggle in assessing a patient.53
In a nutshell, by providing the necessary legal training regarding the mental capacity test and by encouraging the adoption of a strong doctor-patient
51 Herring (n49) 470-566.
52 Re B (a child) [2009] UKSC 4-6.
53 Donnelly M, ‘Capacity assessment under the Mental Capacity Act 2005: Delivering on the functional approach?’ Legal Studies (2009) vol 29.
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relationship maybe then we could ensure that the best interest of the patient is considered while ensuing that autonomy is preserved to a certain degree. While all this is encouraging, we must also consider the danger regarding the potential abuse of power by doctors.
5.7 Abuse of power
It should be noted that the substantial disproportion of power and knowledge are inbuilt limitations to the patient-doctor relationship. In order to benefit the patients, power and intimacy must be balanced in their direction.54 The medical profession is conscious of the dangers associated to such a relationship such as exploitation, arising from the imbalance of power between the parties and the dependency of one party on another.55
The shift away from State paternalism has amplified the need for patient protection. To ensure that the patient provides the necessary informed consent, it is crucial for the physician to ensure that the patient fully grasps all the side effects involved in different treatments.56 Since informed consent is directly linked with the autonomy of the patient, it is his right to know about all
54 Nadelson & Notman, ‘Boundaries In The Doctor–Patient Relationship’(2002) Theoretical Medicine 190-5.
55 (n11).
56 Goodyear-Smith, ‘Power Issues in the Doctor-Patient Relationship’ (2001) 9 Health Care Analysis 447-9, 450-2.
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the different options available to him before making a decision. It is not just what the physician think is necessary as treatment that matters. Now that we have seen that informed consent is a vital safeguard in facilitating patient’s autonomy via the patient-physician relationship, we must now consider whether this relationship has been endorsed by policies and proposals.
5.7 Proposals endorsing Patient-Physician relationship
The Joffe Bill “End of life Assistance bill” is a Bill to permit assistance to be given to persons who wish their lives to be ended.57 The Parliament has rejected the Bill on December 2010.
The Bill tells us that a physician shall not be guilty of an offence if he is acting in good faith in assisting a qualifying patient to die.58 The ‘good faith’ requirement is significant as it takes into the consideration the risk of an abuse of power. Neither does the Bill define good faith nor does it provide scenarios whereby physicians will not be acting in good faith. The lack of clarity regarding this requirement can negatively impact the physician in contemplating advice.
57 Assisted Dying for the Terminally Ill HL Bill (Joffe) (Session 2003-2004) Bill. 58 Ibid at para 10(1).
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However the number of obligations that the Bill imposes on the attending and consulting physician to fully inform the patients,59 will help to fill the gap in knowledge of the latter in the physician-patient relationship. Thus facilitating informed consent and autonomy of patient.
The APPG goes a step further than the Joffe Bill by providing further safeguards to protect patient autonomy such as the provision asking for a declaration from the patient and two independent physicians to evaluate the freedom and mental capacity of the patient. This requirement is a rigid safeguard as it reduces risks of abuse of power as it will ensure that the patient is fully informed of the different treatments available to him and it will protect the patient from being coerced.
5.8 Conclusion
To conclude, the state has an interest in preserving life of everyone but in doing so it marginalises patient autonomy. It is for this reason that a balance must be found between the two. This is where an independent third party such as a doctor comes into play in the balancing process. Why an independent doctor? Because it is through the doctor-patient relationship that a patient will able to take a medically evaluated autonomous decision on whether to end his life or not without being coerced by either state or family. By developing a strong doctor-patient relationship, where the physicians know about the values and wishes of the patient. The doctor may be able to
27
59 Ibid.
preserve autonomy of the unconscious patient and act in his best interest despite the limitations of requiring informed consent.
Evidently there is a risk of abuse of power by medical professionals. To counter this issue legislation and policies in place have come up with some interesting provisions such as, two independent doctors to assess capacity of patient and to withhold the best interest concept.
While atleast theoretically a balance has been found, in practice there will certainly be some deviation that will lead to the ‘slippery slope’. It is in this direction that the research paper now turns.
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6. Chapter 3: Slippery slope
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6.1 Introduction
In this chapter, I will analyse the practical element of the slippery slope and I will argue that the slippery slope is a defeasible argument always open to possible rebuttal and hence it will not succeed in preventing the possibility of an effective piece of legislation in favour of PAS.
The slippery slope argument has played an important role in political, public and professional debates over Physician-Assisted Suicide (PAS). It has been found by the policy makers in both the US and UK that the slippery slope concerns are sufficiently compelling to uphold existing laws that prohibit PAS.60 It can be argued that once PAS is legalised, however narrowly the permission was circumscribed, the scope of the law would gradually become wider as it may become acceptable for physicians to assist in other circumstances that was originally intended, slowly deviating and pushing the boundaries of law, leading to descent down a ‘slippery slope’. However the concern of the ‘slippery slope’ concept is still widely prevalent in statements
60 Paterson, Assisted Suicide & Euthanasia (Ashgate, 2008) 172-174.
and position papers from a variety of groups including many professional medical groups.61
The slippery slope argument is a powerful one and is afforded great consideration as it is precisely this argument that generates fear and ultimately discourages people from supporting Assisted-suicide.62 It can be argued that the concept of slippery slope is based on weak foundations that are tough to identify in reality. Nevertheless, the hypothetical nature of the slippery slope can prove to be helpful to PAS supporters’ claims by acting as a guide in the creation of various safeguards by showing several potential, albeit rare scenarios. When formulating a legislative guidance it is ‘necessary to find a balance between respecting the rights of patients and limiting the undesirable consequences to which the recognition of such rights might give rise’.63 This is because we are dealing with such fine lines between life and death.
61 Bosshard et al, ‘A role for doctors in assisted dying? An analysis of legal regulations and medical professional positions in six European countries’ (2008) 34 J Med Ethics 28, 28.
62 Smith S ‘Evidence for the Practical Slippery Slope in the Debate on Physician-Assisted Suicide and Euthanasia’ Medical Law Review 13 18-45 2004.
63 William Chasterson, ‘Last rights: euthanasia, the sanctity of life, and the law in the Netherlands and the Northern Territory of Australia’ (1998) I.C.L.Q. 360-
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6.2 The Practical Element
Firstly the practical element of the slippery slope suggests that since ‘safeguards to prevent the slippery slope cannot be made effective’64, a slide down the slope is unavoidable if PAS is legalised. The empirical argument is fatal to legislation as the only thing that it cares about is whether the safeguards can fulfil their task in reality. The practicability of the regulations and safeguards are primordial as the lives of people are at stake.
To clarify the workings of the practical element of the slippery slope we have an interesting discussion provided by Arras, to which I concur. First of all, Arras argues that ‘a socially sanctioned practice of PAS would in all possibility prove tedious to contain within the boundaries which were originally intended’.65 Secondly he predicts the ‘Likelihood of Abuse’ as an unavoidable outcome of any justifiable criteria. When we insert a particular social practice into society, based on the practical element of the slippery slope, Arras predicts that patients who do not satisfy the justifiable criteria will eventually become candidates for death.66 The practical element seems to weaken the practical efficacy of the safeguards, whose role is to prevent any kind of
364, 370-375.
64 Keown (n5) 72-3.
65 John D. Arras, ‘Physician-Assisted Suicide: A Tragic View’, (1997) 13 J. Contemp. Health L. & Pol’y 361, 368-9.
66 Arras (n65) 368-370.
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abuse. As a social pessimist on these matters, I worry given social reality as we know it, some of the justifiable criteria such as the request for death must be truly voluntary may not be satisfied in reality because of family or physician coercion. However I concur with the point that we should remind ourselves that no piece of legislation is capable of providing full protection especially because of the unpredictable behaviour of humans.
In addition the terms, “intolerable suffering” and “terminally illness”, on which the APPG Bill and Joffe Bill rely on can be misinterpreted and hence can lead to expansion of boundaries. The terms have been employed as criterion to decide whether or not an individual may request PAS. It can be argued that there will be incentives to enlarge the categories of people…it is impossible to limit that class’.67 In reality this is certainly plausible.
In the space of thirty years, the assessing criteria set out in the 2002 act74 on whether a person can be euthanized or not has been lowered from being “terminally ill” to simply the requirement that the individual has to be over 70 and ‘tired of living’.75 By giving greater and uncontrolled autonomy to individuals, the justifiable criteria to be euthanized have been lowered as a result of which the exposure of vulnerable people to the slippery slope has increased. Therefore this is clearly an example of the slippery slope in action.
Although it has been contended that UK should learn from the Netherlands failure in protecting its people against the slippery slope.76 It can be argued that those experiences do not necessarily apply similarly to other jurisdictions because of the legal contexts and social environments differ.
Conclusion
To sum up, what we have learned from the Dutch approach is that by giving greater and unregulated priority to personal autonomy, while reducing the State oversight and influence, UK may in slip down the slippery slope in a similar fashion. However by keeping the state’s influence to a minimum and
8. Conclusion
In a nutshell, it is clear that question of whether or not physician-assisted suicide should be legalised, is a very contentious subject. The aim of this research paper was to figure out whether adequate safeguards could be developed to protect vulnerable individuals from falling down the slippery slope.
In order to answer to this question we have investigated the safeguards that would be needed, we have assessed how effective they can be and finally what additional safety measures may be required to protect individual autonomy.
We have seen that the current law regarding assisted suicide in UK lacks certainty and clarity.77 It will be difficult to avoid involuntary euthanasia on legalisation unless an effective legal framework with adequate safeguards is established.
77 The Commission on Assisted Dying ISBN 978-1-906693-92-3 (2012).
Patient autonomy is at the centre of all spotlights in the PAS debate because the entire PAS process is based on the patient having the ability to choose the timing of their death, to bring their sufferings to an end, with help of medical professionals. Despite the fact that autonomy articulates in favour of legalisation of PAS, it must be noted that patients cannot be given absolute and unregulated autonomy because of the state duty in preserving life. This is the reason why a variety of safeguards have been proposed to make sure that the individual is able to give an authentic informed consent, should he wish to bring his life to an end.
What we learned from the Dutch example is that if we want to be victims of the slippery slope, like the Netherlands, then we should keep the state’s duty regarding the preservation of life to a minimum and give priority to individual autonomy.78
On one hand, since the state has a duty to preserve life. By attributing greater importance to the State, it would appear that the lives of every single individual would be protected. However the issue is that by doing so, personal autonomy would be extremely marginalise.79
On the other side, absolute and unregulated autonomy comes with a series of problems. Not every autonomous decision deserves respect, as it might not
78 Keown (n2) 52-4 79 Herring (n49).
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be in the best interest of the patient.80 For instance, a drunk woman asking a doctor to assist her in dying.
In the absence of an irrefutable solution to the concern of balancing state protectionism against personal autonomy, the role of an independent doctor has been considered, in the PAS process, to circumvent the balancing issue. We have seen that via confidence and mutual trust, the doctor-patient relationship is capable of facilitating patient’s autonomy. This is because in such relationship, the physician is able to explain to the patient the different treatments options available to him, to respect the wishes of the patient and act for his best interest. In addition since the court is hesitant to prosecute doctors involved in assisted suicide,81 this relationship looks like the perfect safeguard against the slippery slope.
However by looking at the practical element of the slippery slope, it is impossible to give priority to the best interest of the patient while being subjected to the rigid enforcement of the sanctity of life by the government simply because they are incompatible together.82
It is in the author opinion that compromise is a sign of weakness. Therefore even if a compromise could be found between the two, this weakness will
drag us down the slippery slope. Hence to answer to the question posed by this research paper which is ‘Can we say that physicians and patients will eventually fall victim of the slippery slope?’ Based on the safeguards that have been considered in this research paper the answer is YES!
However by studying and assessing the level of success of other jurisdictions, such as USA and Luxembourg, which has legalised euthanasia to some extent, the parliament might find a way to counter the dangers of the slippery slope and produce the most effective safeguards.