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CMQ - May 2010

RESPONSE OF THE JOINT MEDICAL ETHICS COMMITTEE
OF THE CATHOLIC MEDICAL ASSOCIATION AND THE
CATHOLIC UNION OF GREAT BRITAIN TO THE DPP
CONSULTATION ON 'ASSISTED SUICIDE' (PART II)

Dr Philip Howard MA MD MA LLM FRCP

Chairman of the Joint Committee of the Catholic Medical Association and Catholic Union of Great Britain.

The Joint Medical Ethics Committees is composed of and members draw from two parent bodies, the Catholic Union of Great Britain and the Catholic Medical Association. The Catholic Union is an organisation of Catholic Laity founded in 1871 which represents the Catholic viewpoint, where relevant in Parliarnentary and legislative matters. The Catholic Medical Association represents catholic healthcare workers of the United Kingdom.

Part II addresses the questions raised in the Consultation and includes:-

1. Problems inherent in dealing with assisted suicide.
2. Factors for and against prosecution in the interim guidelines.
   1. Infringement of Article 2 ("right to life").
   2. Presumption in favour of prosecution Specific criteria for or against prosecution in the interim guidelines.
   3. State of the victim
   4. Persistent and fixed wish to commit suicide
   5. Behaviour of the person assisting suicide.
   6. Intentions of the suspect in encouraging or assisting suicide.

3. Conclusions and recommendations

1. PROBLEMS INHERENT IN DEALING WITH ASSISTED SUICIDE

From the account of suicide and attempted suicide given in Part I there are clearly inherent problems in dealing with the issue of attempted suicide.

First, the overwhelming majority of those who make serious suicide attempts will be depressed. "Mental disorders (particularly depression and substance abuse) are associated with more than 90% of all cases of suicide; however, suicide results from many complex sociocultural factors and is more likely to occur particularly during periods of socioeconomic, family and individual crisis situations (e.g. loss of a loved one, unemployment, dishonour)."1 Physical and even terminal illnesses are not necessarily, or even usually, linked to suicidal ideation. For example in a large study of deaths in patients with multiple sclerosis in Sweden only 1.8% were attributed to suicide.2 Nevertheless those with depressive tendencies may experience true depression when they become ill. This is likely to be exacerbated by a sense of helplessness or hopelessness if they are not given adequate help and support or their symptoms are not being properly addressed.

Second, even in those with serious suicidal ideation, intentions may not be fixed and may vary over time even in the same individual. "Individuals who wish to kill themselves may be suicidal for only a limited period of time. In our experience, emotional support can help people come through a suicidal crisis. Talking and listening can make the difference between choosing to live and deciding to die."3 Indeed, it is normal for patients with severe illness, especially terminal illness, to undergo periods of denial, anger, frustration and depression as part of the process of coming to terms with their condition. Dr Elisabeth Kubler-Ross described the five phases of dying as denial, anger, bargaining, depression and acceptance Indeed, the reaction to life-threatening or terminal illness has been likened to a bereavement reaction for the patient. As Charles Peguy (1873-1914) wrote "When a man lies dying, he does not die from the disease alone. He dies from his whole life." It is therefore very difficult to distinguish the normal reaction to severe and life threatening disease from genuine depression and mental illness. What is part of the very understandable reaction to terminal illness may therefore be misinterpreted as a desire to die when it is, in fact, a wish to have distressing symptoms relieved.

Third, doctors and patients may differ in the perception of a patient's quality for life. Debbie Purdy writing of her experiences of multiple sclerosis in the BMJ stated "I have been helped to embrace the disease and what it gives me, not just what it takes away. Quality of life is one judged to be lower by medical professionals than it is by the patient, because the able bodied see which of their abilities you don't have, rather than what you have that maybe they don't".4 A recent study in the BMJ5 reported interviews with physicians and patients in the Netherlands where the patients had been refused euthanasia. Not all patients who requested euthanasia thought their suffering was unbearable, although they had a lasting wish to die. Where they said they were suffering unbearably they put more emphasis on psychosocial sufferance, such as dependence and deterioration, whereas physicians placed more emphasis on physical suffering. Patients mentioned that whilst pain was an clement of their suffering it did not make their suffering unbearable. Hence physicians and their patients have different perspectives on what constitutes unbearable suffering. Those seeking PAS will not necessarily be terminally ill or 'suffering unbearably' but rather see PAS as an aspect of personal autonomy. Dr Pieter Admiraal, a pioneer of euthanasia in Holland, has stated that "essentially all pain can be controlled....euthanasia for pain relief is unethical" and that in his opinion "there are many good reasons for euthanasia, pain control is not one of them."6 He accepts that "in fact, for most patients "cancer pain" means real physical pain combined with fear, sorrow, depression, and exhaustion. This kind of "pain" is an alarm signal indicating shortcomings in interhuman contact and misunderstandings of the patient's situation. One can treat this "pain" with good terminal care based upon warm human contact."7

Fourth, a change in the attitude towards assisted suicide may well alter the threshold at which it occurs. An acceptance of physician assisted suicide may well lower the standards of palliative care. A Dutch doctor, in evidence to the House of Lords select committee considering the Joffe Bill stated that: "I would rather die in a country where euthanasia is forbidden but where doctors do know how to look after a dying patient in a humane manner than I would in a country where palliative medicine is ignored but euthanasia can be easily arranged".8  Dame Cicely Saunders described the effects of a request for suicide or euthanasia succinctly when she said that "When someone asks for euthanasia or turns to suicide, I believe in almost every case someone, or society as a whole, has failed that person. To suggest that such an act should be legalised is to offer a negative and dangerous answer to problems which should be solved by better means."9

Fifth, many of those involved in assisted suicide will be known to the victim and will not have clinical experience in dealing with the underlying problems. This raises the problems of emotional involvement on the one hand and lack of the professional skills needed to deal with often complex, difficult and emotionally demanding clinical issues on the other. It is likely that in the majority of cases, those proposing assisting in suicide will not have much, if any, experience in dealing with individuals with severe disability, chronic pain or terminal illness.

Sixth, assisted suicide involves one private individual encouraging or assisting in the death of another private individual. This arrangement must necessarily be a matter of concern. There will always be questions about the motives and intentions of the assister and the circumstances in which death occurs. If assisted suicide were to occur in the case of someone under the age of 18 years, there will questions of abuse and neglect and child protection issues to be addressed. If the victim is elderly, frail, chronically disabled or terminally ill there will also be question of potential abuse. It must be remembered that domestic violence and elder abuse are all too common. "Assisted suicide" could easily provide a vehicle for concealing manslaughter or murder. The mental state, mental health and mental capacity of the assister may also be in doubt. If the condition of the victim was such that they considered suicide, it also raises the question of systemic failure of the appropriate
Social and medical services as it would if the victim was a child.

Seventh, assisted suicide is a unique crime in so far as it removes the main source of evidence as to the mental state of the victim. It may therefore be very difficult to ascertain the mental capacity and mental health of the victim, their state of mind at the time of the suicide would be impossible to determine. Furthermore, once the victim is dead it may be that the only one capable of giving evidence as to the exact sequence of events is the person assisting in the suicide.

Eighth, the distinction between assisted suicide and deliberate homicide may be difficult in practice and is ethically dubious. Assisted suicide implies that the victim was unable to kill themselves unaided. Hence, if the victim is unable to ingest a lethal cocktail of drugs would syringing the medication into the victim's mouth or via a gastrostomy feeding tube constitute murder or assisted suicide? What degree of 'assistance' would constitute murder? In practice, once the victim is dead the main witness may be the one assisting at the death so that there would be significant evidential problems in deciding if the death was due to assisted suicide, manslaughter or murder. "Whatever its motives and means, direct euthanasia consists in putting an end to the lives of handicapped, sick or dying persons. It is morally unacceptable."10

Rationale for the Suicide Act 1961

The Suicide Act 1961 was a humane piece of legislation that recognised that those who had attempted suicide were in need of help and support. Those who have attempted suicide and survived should be helped not criminalised. A greater understanding of suicide including the risk and protective factors meant that attempted suicide became a clinical, rather than a criminal matter for the victim. Indeed, prosecuting the victim and threatening imprisonment is likely to prevent humane help, support and rehabilitation of those who have attempted suicide. Nevertheless, this does not mean that individuals assisting suicide attempts should not be penalised. It was therefore logical and necessary for the new offence of assisting suicide to be created by the Suicide Act.

2. FACTORS FOR AND AGAINST PROSECUTION OF ASSISTED SUICIDE IN THE INTERIM GUIDELINES

(i) Infringement of Article 2 ("right to life").

The most important factor in relation to a prosecution for assisted suicide in the public interest is that innocent human life has been taken.

Article 1 , of the Convention binds member states to secure to everyone within their respective jurisdictions the rights and freedoms defined in Section 1 of the Convention. The first of those rights, expressed in article 2(1), is the right to life.

Article 2 of the European Convention on Human Rights (`right to life') states:

"Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally"

Exceptions include loss of life from the lawful use of force when absolutely necessary in the defence of any person from unlawful violence, to quell a riot in making arrests and preventing the escape of legally detained prisoners. In practice these exception would rarely apply to medical practice. There are no exceptions for assisting in suicide.

States are under a 'positive obligation' to protect life and must conduct effective investigations of deaths, where a breach of Article 2 may be in question.

In Pretty v United Kingdom [2002] it was argued that Article 2 protects the right to life and not life itself. The European Court of Human Rights disagreed and, in its judgment, stated that:

"Article 2 cannot, without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die; nor can it create a right to self- determination in the sense of conferring on an individual the entitlement to choose death rather than life. [...] The Court accordingly finds that no right to die, whether at the hands of a third person or with the assistance of a public authority, can be derived from Article 2 of the Convention".

The European Court of Human Rights has taken the view that Article 2 of the ECHR not only prohibits unlawful killing by agents of the State, but also places States under a 'positive obligation' to take preventive operational measures to protect those whose lives are threatened, even if the threats are from another private person (Oman v UK 1998) or through self-harm (Keenan v UK 2001]).

In 2001, the European Court made clear that Article 2 requires that all complaints about unlawful killing are investigated in an effective way. (Kelly and others; Hugh Jordan and Shanaghan v UK). The onus is on the State to prove that the investigation is Article 2 compliant and that it was independent, effective, prompt and transparent (i.e. open to public scrutiny). More recent judgments have re-emphasised the need to meet these standards. (McShane v UK [2002]: Finucane v UK 2003])

In R v. Secretary of State for the Home Department [2003] UKHL 51, Lord Bingham of Cornhill stated:

"30. A profound respect for the sanctity of human life underpins the common law as it underpins the jurisprudence under articles 1 and 2 of the Convention. This means that a state must not unlawfully take life and must take appropriate legislative and administrative steps to protect it

.

31. The state's duty to investigate is secondary to the duties not to take life unlawfully and to protect life, in the sense that it only arises where a death has occurred or life-threatening injuries have occurred.... The purposes of such an investigation are clear: to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (it unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others".

(ii) Presumption in favour of prosecution.

The Crown Prosecution Service is a public authority for the purposes of the Human Rights Act 1998. Crown Prosecutors must apply the principles of the European Convention on Human Rights in accordance with the Act. The Code for Prosecutors sets guidance to ensure fair and consistent decisions.

The first test is a consideration of the evidence to ensure that there is a 'realistic prospect of conviction' (5.1). Section 2 (4) of the Suicide Act requires the consent of the DPP for a prosecution for assisted suicide. However, as stated above it may be difficult to be sure that the death was in fact due to assisted suicide and not manslaughter or murder. If there is doubt about the nature and cause of death a prosecution should proceed. If there is a reasonable prospect of conviction and the crime is that of assisted suicide, then the DPP should consider the public interest test.

According to the Code (5.7). "A prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour, or it appears more appropriate in all the circumstances of the case to divert the person from prosecution (see section 8 below)". That said, "public interest factors that can affect the decision to prosecute usually depend on the seriousness of the offence or the circumstances of the suspect" (5.7).

The more serious the offence, the more likely it is that a prosecution will be needed in the public interest (5.9). Of the listed factors favouring a prosecution, the following would seem to be particularly relevant to assisted suicide: (g) there is evidence that the offence was premeditated; (i) the victim of the offence was vulnerable, has been put in considerable fear, or suffered personal attack, damage or disturbance; (k) the offence was motivated by any form of discrimination against the victim's ethnic or national origin, disability, sex, religious beliefs, political views or sexual orientation, or the suspect demonstrated hostility towards the victim based on any of those characteristics; (q) a prosecution would have a significant positive impact on maintaining community confidence. Of the listed factors against prosecution is factor (g): the defendant is elderly or is, or was at the time of the offence, suffering from significant mental or physical ill health, unless the offence is serious or there is real possibility that it may be repeated.

Where a prosecution is not considered appropriate "the availability of suitable rehabilitative, reparative or restorative justice processes can be considered." (8.1).

(iii) Specific criteria for or against prosecution in the interim guidelines.

The criteria for or against prosecution focus mainly on the physical and mental health status and mental capacity of the victim and their determination to commit suicide, the relationship between victim and suspect, the intentions of the suspect in assisting suicide and in particular whether the assisted suicide was 'wholly motivated by compassion'.

(iv) State of the victim

Mental and physical health and mental capacity.

In the guidelines, prosecutions are less likely if the victim had a terminal illness, severe or incurable physical disability or a severe degenerative condition from which there was no prospect of recovery.

This is to create an underclass of individuals with severe disability and terminal illness who will receive less protection from the law than the physically healthy. It will also encourage and support the idea of 'mercy killing'. As outlined in Part I, the Euthanasia laws in Netherlands were enacted in 2002. However, 21 years earlier Dutch prosecutors turned a `blind eye' to the prosecution of doctors involved in assisted suicide and active euthanasia. Our colleagues in the Christian Medical Fellowship have drawn attention to the real prospect of 'euthanasia by stealth' through changes to the prosecutorial system in this country. "We fear that publishing any such guidelines runs the real risk of leading over the years to what would effectively be legal sanctioning of the practice of assisted suicide."11

As explained in Part I the overwhelming majority of patients who actually commit suicide do not have chronic disability, pain or terminal illness but have mental illness and/or depression. Moreover, a determination to commit suicide may be part of the 'normal' reaction to severe or life-threatening disease and will usually be temporary.

It is difficult to understand how the assister could make a medical assessment of the victim without involvement of the medical profession. As indicated in Part I this will raise significant issues of complicity and cooperation for doctors and nurses involved in the care of the chronically sick and terminally ill. At present there are no ethical difficulties in providing a thorough medical and psychological assessment with recommendations as to treatment and prognosis of patients as there is no question of assisted suicide. However, if assisted suicide becomes tolerated, such assessments might be used, knowingly or unwittingly, as 'evidence' in favour of assisted suicide. However, if a doctor were to discover that a patient was contemplating 'assisted suicide' what action should be taken? Should it be reported as a case of potential elder abuse? Might it result from undue pressure on the patient who sees their life as a burden, or in order to avoid the expense of institutionalised care? Baroness Warnock has already suggested that the demented may be a burden on others. She put it graphically when she wrote: "If you're demented, you're wasting people's lives — your family's lives — and you're wasting the resources of the National Health Service.....I'm absolutely, fully in agreement with the argument that if pain is insufferable, then someone should be given help to die, but I feel there's a wider argument that if somebody absolutely, desperately wants to die because they're a burden to their family, or the state, then I think they too should be allowed to die".12

Doctors might also be complicit in actively encouraging patients to end their lives. Such doctors are likely to be a minority but could nevertheless account for a number of lives. For example, in the Oregon Public Health Department reports for 200413 and 200514, the maximum number of lethal prescriptions by any one doctor was seven in 2004 and eight in 2005. However, the authors of a study into the workings of the Oregon Law over a 10 year period in the Michigan Law Review discovered in one hospice that had 28 cases of physician assisted suicide (PAS) since 1997, a single doctor was involved in 23.15 In addition, it is clear that in Oregon patients may consult several different physicians when seeking PAS. In 1999, ten of the twenty-seven cases obtaining a lethal prescription went to a second physician and eight went to a third or fourth physician.16

The Oregon experience of over 10 years of PAS also indicates that reporting of events is poor perhaps, because it relies on self-reporting by doctors and assessments of patients is inadequate. No collaborative information is required from relatives. PAS may be a cover for negligent or substandard practice. "They [physicians] are expected to make decisions about voluntariness without having to see those close to the patient who may exert a variety of pressures, from subtle to coercive. They are expected to do all of this without necessarily knowing the patient for more than fifteen days. Since physicians cannot be held responsible for wrongful deaths if they have acted in good faith, substandard medical practice is permitted, physicians are protected from the consequences, and patients are left unprotected while believing they have acquired a new right"17

Even in Oregon, psychiatrists did not feel competent to assess whether patients were mentally competent to commit suicide. When surveyed, only six percent felt very confident
that, in the absence of a long-term relationship with a patient, they could satisfactorily determine whether a patient was competent to commit suicide.18

There is also evidence that not only many patients seek compliant doctors when requesting PAS but that the Oregon Death with Dignity Act has altered the approach to patients. In States outside of Oregon, patients requesting assistance in suicide are assessed in the same way as any other patient intent on suicide recognising that "although physical illness may be a precipitating cause of despair, these patients usually suffer from treatable depression and are [almost] always ambivalent about their desire for death."19 Conversely, terminally ill cancer patients preoccupied with assisted suicide had symptoms of depression or hopelessness.20 Oregon's assisted suicide guidebook21 indicates a totally different approach. It stresses that any mental health consultation should focus on mental capacity and the patient's capacity to make a decision. Indeed, of the 49 people who died by lethal medication under the Oregon Act in 2007, none were referred for mental health evaluation.22

Conclusion.

We do not think that a prosecution for assisted suicide should be less likely in the face of chronic incurable disease, physical suffering or terminal illness as a matter of principle. This runs the risk of identifying an underclass of vulnerable persons who will have less protection by the law. Patient's perceptions differ from those of doctors as to what constitutes unbearable suffering. Moreover their views are likely to change over time. Those with suicidal ideation are overwhelmingly suffering from mental illness and/or depression. When 'assisted suicide' is tolerated, the attitudes of attending physicians towards patients change and patients may well seek out doctors who will acquiesce to their request. Where the law permits PAS, assessment of patients often centres on mental capacity and the patient's ability to make a competent decision. Mental health assessments and screening for depression are often absent. If assisted suicide is to escape prosecution for such patients, the treatment of chronic disability and terminal illness and the palliation of symptoms are likely to deteriorate.

Age

The use of age of the victim as a factor in prosecution for assisting suicide is a matter of concern. Clearly, if it is proposed for those under the age of 18 there would be concerns about the real possibility of child abuse and neglect. It would be unconscionable for the DPP to support this in any way. However, if the patient is elderly, vulnerable or incurably disabled there would equally be concern about the posibility of abuse and neglect. Elder abuse and abuse of the chronically sick and disabled must remain a matter of the utmost concern.

(v) Persistent and fixed wish to commit suicide

As already indicated, the wish to commit suicide is almost always underlined by depression and/or serious mental health problems. The risk and protective factors were outlined in Part I. A desire to commit suicide is usually temporary and either resolves as the underlying precipitating causes are addressed, or sadly, leads to an actual suicide. However, those who have made a previous attempt at suicide are at much greater risk of making a further successful attempt. This in turn may be a manifestation of ongoing mental illness or depression and should not be a reason for relaxing the law on assisted suicide. Such patients need skilled psychiatric support and often treatment for mental illness.

Increasingly, assisted suicide is seen as an insurance policy against worsening disability, pain or ill-health or loss of control. Indeed, Debbie Purdy in her BMJ article wrote. "I want a law that will allow me to die if living becomes unbearable. I don't want to make this choice, and I certainly don't know when I would, even if I could. I just know that if it were a legal possibility, a safety net, I would just be able to get on with dealing with each new symptom and keep my marriage healthy."23 Clearly, since Debbie Purdy does not know if she would or could make the choice to end her life and wants the option of assisted suicide as a 'safety net', she does not intend to kill herself — and is unsure if she ever would. A determination to commit suicide cannot be provisional in view of the nature of suicide which extinguishes life and abolishes autonomy.

(vi) Behaviour of the person assisting suicide.

Prosecutions for assisted suicide would of course focus not on the victim, who will have died, but the person assisting.

The interim guidelines stress the relationship between the suspect and the victim and the number of other suicides that may have been procured.

Since domestic violence and abuse are common and involve persons known to the victim, it is difficult to understand why being a `spouse, partner or close relative' should make a prosecution for assisted suicide less likely. Moreover, close relatives may well benefit from the Will of the deceased and be freed from the expense of ongoing care. Of course, if the suspect was paid by the victim or those close to the victim, this should favour prosecution. Similarly, if the suspect was paid to care for the victim in a care or nursing home or was otherwise placed to care for the deceased he or she should be prosecuted. Prosecutions should also be pursued for those who provide premises for promoting assisted suicide. The Justice and Coroners Act prohibits encouraging or assisting suicide by providing information services over the Internet.

(vii) Intentions of the suspect in encouraging or assisting suicide.

Malicious encouragement and personal gain

There should be no doubt that those engaged in assisted suicide for gain, or who pressured or maliciously encouraged the victim to commit suicide or exercised undue influence over the victim should be prosecuted.

Compassion

The draft guidance also suggests that being "wholly motivated by compassion" should be factor against prosecution.

This is a novel defence against an unlawful killing and would promote 'mercy killing' as it did in the Netherlands from 1981 onwards.

No definition of compassion has been given. Compassion is a motive for helping those in difficulty. However, what is actually done is determined by the intention of the moral agent. Hence, two people may be motivated by compassion to help a terminally ill patient in distress. One may feel that this requires palliative care the other that the patient should be killed.

It is seldom the case that there is a single motive behind euthanasia and assisted suicide. Indeed, as already indicated, the motives of the patients may differ from those of the doctors. Moreover, the perception of 'unbearable suffering' also differs. Healthcare personnel may perceive suffering in terms of physical pain and depression whereas patients may view it more in relation to hopelessness, helplessness and loss of control. A perceived need for assisted suicide may disappear if the underlying reasons are addressed.

There would undoubtedly be evidential problems in determining the presence of compassion. The principle witness will have died and cannot give evidence.

CONCLUSIONS AND RECOMMENDATIONS

1. Suicide is always gravely wrong and has been recognised as such since the time of Hippocrates.
2. The Suicide Act 1961 rightly decriminalised suicide and attempted suicide for the victim on humanitarian grounds. The decriminalisation of suicide recognised the importance of providing care and support for the victim. Families, relatives and others close to those who have committed suicide also share in the trauma. The decriminalisation of suicide removed part of the stigma attached to suicide and reflected the recognition by society that there are always many victims, including those who survive and have to live with the tragedy. However, the decriminalisation of suicide was never meant to signal that it was ever appropriate to encourage or assist in suicide. Assisting or encouraging in the suicide of another is always a serious matter and should be prohibited by the law.
3. There is a strong public interest in maintaining the prohibition on assisted suicide. There should remain a strong presumption in favour of prosecution unless the chances of conviction are poor.
4. To forgo prosecution on the grounds of compassion will encourage 'mercy killing'. This was the case in the Netherlands.
5. Doctors and nurses should not be involved in encouraging or assisting suicide. Those that are contemplating suicide may well require skilled professional help and will often have had access to healthcare workers before taking their life. Any co-operation for assisting suicide between healthcare professionals and potential victims should remain both unethical and illegal.
6. Prosecutions should not be excluded on the basis of the age, physical or mental health of the victim or the relationship between the suspect and victim.
7. Rarely, a prosecution may not be in the public interest if the suspect is too frail to stand trial and there is no realistic possibility of the offence being repeated, or where the involvement was both minimal and reluctant. In such circumstances alternative remedial solutions should be considered according to the Code for Crown Prosecutors.

 

 

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