Time for a Change in the Laws on Assisted Dying in England and Wales?

by guest writer Saimo Chahal*

In the UK, the debate on legalising assisted dying has been going on for decades. In the 1930s, there was an organisation lobbying for more choice in life and life’s end: the VES – Voluntary Euthanasia Society. Polls dating back to the 1970s show that a majority of Britons wish to decide on the time and manner of their own death.

However, despite efforts by both organisations and some brave individuals, the majority of politicians have not heeded the plea for more human dignity and choice. Two recent efforts in parliament by Lord Falconer and then Rob Marris did not succeed. Rob Marris’ bill was defeated in the House of Commons on 11 September 2015 by 330 to 118 votes. Many found the debate unimpressive, raising questions as to whether parliament is the right forum for such legally complex and morally charged questions.

My clients have decided that politicians are way behind public opinion and have resorted to litigation to bring about a change in the law. This journey started with the case of Diane Pretty, a woman suffering from motor neurone disease, who sought immunity from prosecution for her husband so he could assist her to die: the European Court of Human Rights (ECtHR), in 2002, found: “In an era of growing medical sophistication combined with longer life expectancies, many people are concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflict with strongly held ideas of self and personal identity.” Further court cases followed: Debbie Purdy, and then Tony Nicklinson and Paul Lamb’s cases. The latter case was decided by the Supreme Court in June 2014. The Court found by a majority that their European Convention on Human Rights (ECHR) article 8 rights were engaged, that the court did have jurisdiction to decide the case but found that parliament should have the opportunity to review the law first. The court also said that if parliament did not grapple with the issue of people like Tony Nicklinson and Paul Lamb – i.e. those with incurable conditions (not just those with a terminal illness) then they may be obliged to revisit the issue.

Now, a new case is before the High Court, that of Omid, a 54-year-old man, who was diagnosed with multiple systems atrophy in 2014, a condition that cannot be cured and affects the nervous system. He attempted suicide in 2015, failed like so many others, and was then moved to a nursing home. Even with 24-hour care and support, Omid wants to die as he feels that he has no quality of life. Omid wants to change the assisted dying law in England and Wales – a courageous and selfless act considering his condition. He wants to help others and to leave a legacy.

Omid argues that the law violates his right to private life, in breach of ECHR article 8. The law does not allow him, and other competent adults who have made a clear and settled decision to end their lives due to unbearable suffering. He wants the Court to declare section 2 of the UK Suicide Act 1961 incompatible with his rights to autonomy and dignity and to find this Act, which prohibits assisting in a suicide to be unlawful – much in the same way that the Carter case in Canada established that the criminal law is unconstitutional. It is also being argued that ECHR article 2 (the right to life) is engaged as Omid would have to travel to Switzerland to have an accompanied suicide whilst he was still able to travel and that this is earlier than he would need assistance with his death if it were lawful in England and Wales.

Omid is not terminally ill but has several years to live in this deplorable condition. Previous failed attempts to change the assisted dying laws through parliament restricted access to assisted dying to terminally ill people with six months or less to live. There is no moral or legal basis for such a restriction and it would not assist Omid and many others like him who have incurable conditions.

Since 2002, 377 Britons have travelled to DIGNITAS to have an accompanied suicide. Many people in England and Wales consider that the law is unfair and unjust in failing to provide accompanied suicide at home.

The main arguments against Omid’s case are that it will lead to a “slippery slope” (for instance, assisted suicide leading to the legalisation of euthanasia) and that it will make weak and vulnerable people susceptible to abuse. But there is no evidence from other countries which have assisted dying laws in place, such as the US state Oregon and Switzerland, that problems of this sort have occurred. In fact, Switzerland has a 35-year practice of accompanied suicide for competent adults who wish to have an assisted death due to their conditions.

The pain and misery arising from the lack of freedom to choose an end to suffering and life for people often in the most wretched conditions is unacceptable. They require and deserve the protection of the law. The time has come for a change in the law!

To find out more about Omid’s case, please click here:
https://www.crowdjustice.com/case/dignified-death

* Saimo Chahal QC (Hon) is Partner and Joint Head of the International law and public law & Human Rights departments of Bindmans LLP. Saimo sits part time as a Mental Health Tribunal judge. She specialises in International cases, application to the ECtHR and domestic human rights and civil liberties cases in a wide range of areas. Saimo also acted for Diane Purdy and Tony Nicklinson/Paul Lamb.

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