The de-medicalisation of assisted dying: Is a less medicalised model the way forward?

Medical Law Review

Volumn 18, Issue 4, 2010, Pages 497-540

  Ost, Suzanne ^a  

^a LANCASTER UNIVERSITY   (United Kingdom)

Author keywords

Assisted dying; Assisted suicide; De medicalisation; Existential suffering; Medicalisation; Suicide tourism

Indexed keywords

ARTICLE; ASSISTED SUICIDE; ATTITUDE TO DEATH; CULTURAL FACTOR; EMPATHY; EUTHANASIA; FAMILY; HEALTH CARE PERSONNEL; HUMAN; LEGAL ASPECT; MEDICAL TOURISM; MENTAL STRESS; MOTIVATION; NETHERLANDS; PATIENT ADVOCACY; POLICY; PSYCHOLOGICAL ASPECT; RIGHT TO DIE; SOCIOLOGY; STANDARD; SWITZERLAND; UNITED KINGDOM;

ATTITUDE TO DEATH; CROSS-CULTURAL COMPARISON; EMPATHY; EUTHANASIA; FAMILY; GREAT BRITAIN; HEALTH PERSONNEL; HUMANS; MEDICAL TOURISM; MOTIVATION; NETHERLANDS; PATIENT ADVOCACY; PUBLIC POLICY; RIGHT TO DIE; SOCIOLOGY, MEDICAL; STRESS, PSYCHOLOGICAL; SUICIDE, ASSISTED; SWITZERLAND;

EID: 78649640646     PISSN: 09670742     EISSN: 14643790     Source Type: Journal    
DOI: 10.1093/medlaw/fwq025     Document Type: Article

References (290)

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2. CPS, Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide (Crown, London 2010), http://www.cps.gov.uk/publications/prosecution/assisted_suicide_policy.html.
3. Information regarding the public consultation on the policy is available at,http://www.cps.gov.uk/consultations/as_index.html. All web pages accessed 24 March 2010.
4. R (on the application of Purdy) v DPP [2009] UKHL 45.
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7. That is, a suicide assisted by another where the final act is carried out by the person who wishes to die. See also H Biggs, Euthanasia, Death with Dignity and the Law (Hart, Oxford 2001) 60.
8. For the purposes of this paper, any reference to euthanasia is to the situation where a doctor administers lethal treatment to a patient at his or her request.
9. I utilise the term 'mercy killing' specifically in relation to laypersons who take another's life to bring an end to that other person's suffering. See also R Huxtable, Euthanasia, Ethics and the Law: From Conflict to Compromise (Routledge Cavendish, Abingdon 2007) xv and 8.
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21. See also N Glover-Thomas's and J Fanning's discussion of two models of medicalisation: professional expansion and systemic permeation.
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27. See also the discussion of 'demoralisation syndrome' in s IV.B.
28. D Lupton, 'Foucault and the Medicalisation Critique' in G Scambler (ed), Medical Sociology: Major Themes in Health and Social Welfare (Taylor and Francis, London 2005) 245, 256.
29. G Howarth and O Leaman, Encyclopaedia of Death and Dying (Taylor and Francis, London 2001) 411.
30. See also Nye, 2003, 124.
31. Moynihan and Smith, 2002, 859.
32. J Peel, Domiciliary Midwifery and Maternity Bed Needs, Report of the Standing Maternity and Midwifery Advisory Committee (HMSO, London 1970).
33. NCT, The NCT Birth Policy 12 Principles (NCT, London 2002), principles 4 and 5,http://www.nctpregnancyandbabycare.com/about-us/who-we-are/policies.accessed 26 March 2010.
34. See, for example, 'More women should have babies at home, not in hospital, says Health Secretary' The Independent (14 May 2006).
35. Department of Health, Maternity Matters: Choice, access and continuity of care in a safe service (Department of Health, London 2007).
36. See T Armstrong, 'Special Education and the Concept of Neurodiversity' (2005), http://www.newhorizons.org/spneeds/inclusion/information/armstrong.htm.accessed 26 March 2010.
37. See, for example, K Seidel, 'The Autistic Distinction' (2004), http://www.neurodiversity.com/autistic_distinction.html.accessed 26 March 2010.
38. Kennedy, 1981, 154.
39. See also AM Capron, 'Legalizing Physician-Assisted Death' (1996) 5 Cambridge Quarterly of Healthcare Ethics 10, 11.
40. 'Some ideals about dying well seem nearly universal: a death occurring after a long and successful life, at home, without violence or pain, with the dying person being at peace with his environment and having at least some control over events'. CF Seale and S van der Geest, 'Good and Bad Death: Introduction' (2004) 58 Social Science & Medicine 883, 385.
41. See E Jackson, 'Death, Euthanasia and the Medical Profession' in B Brooks-Gordon and others (eds), Death Rights and Rites (Hart, Oxford 2007) 37, 49.
42. Citing C Seale 'National Survey of End-of-life Decisions Made by UK Medical Practitioners' (2006) 20(1) Palliative Medicine 3.
43. See also D Clark, 'Beyond Hope and Acceptance: The Medicalisation of Dying' (2002) 324 BMJ 905, 906.
44. See V Cellarius, 'Terminal Sedation and the "Imminence Condition" ' (2008) 34 JME 69.
45. LJ Materstvedt and G Bosshard, 'Deep and Continuous Palliative Sedation (Terminal Sedation): Clinical-Ethical and Philosophical Aspects' (2009) 10(6) The Lancet Oncology 622.
46. G Williams, 'The Principle of Double Effect and Terminal Sedation' (2001) 9 Med L Rev 41.
47. Howarth and Leaman, 2001, 411.
48. SJ Ziegler, 'Collaborated Death: An Exploration of the Swiss Model of Assisted Suicide for Its Potential to Enhance Oversight and Demedicalize the Dying Process' (2009) Journal of Law, Medicine and Ethics 318.
49. Kennedy, 1981, 158-9.
50. See further K Faber-Langendoen and J Karlawish, 'Should Assisted Suicide be Only Physician Assisted?' (2000) 132(6) Annals of Internal Medicine 482, 483.
51. See D Hillyard and J Dombrink, Dying Right: The Death With Dignity Movement (Routledge, New York 2001) 22-3.
52. Faber-Langendoen and Karlawish, 2000, 482.
53. M Brazier, 'Euthanasia and the Law' (1996) 52(2) British Medical Bulletin 317, 323.
54. Consider the Dutch law (on which, see the discussion in s IV.B), the laws in Belgium (on which see J Griffiths, H Weyers and M Adams, Euthanasia and Law in Europe (Hart, Oxford 2008) part 2), and Oregon.
55. (On which see E Jackson, Medical Law: Texts, Cases and Materials (OUP, Oxford 2010) 916-8.
56. S McLean, Assisted Dying: Reflections on the Need for Law Reform (Routledge, Abingdon 2007) 173-8).
57. Consider also Lord Joffe's Assisted Dying for the Terminally Ill bill (referred to later, in s III).
58. T Salem, 'Physician Assisted Suicide: Promoting Autonomy-Or Medicalizing Suicide?' (1999) Hastings Center Report 30, 32 (emphasis in original).
59. Faber-Langendoen and Karlawish, 2000, 483.
60. The Rights of the Terminally Ill Act 1995 was passed by the Legislative Assembly of the Northern Territory in July 1995 and repealed by the Australian Commonwealth Parliament in March 1997.
61. See S Ost, An Analytical Study of the Legal, Moral and Ethical Aspects of the Living Phenomenon of Euthanasia (Edwin Mellen Press, New York 2003), ch 6.
62. AL Plattner, 'Australia's Northern Territory: The First Jurisdiction to Legislate Voluntary Euthanasia, and the First to Repeal it' (1997) 1(3) DePaul Journal of Health Care Law 645.
63. See KJ Lopez, 'Euthanasia Sets Sail: An interview with Philip Nitschke, the other "Dr Death" ', National Review (5 June 2001), http://www.nationalreview.com/interrogatory/interrogatory060501.shtml.accessed 26 March 2010.
64. See also Biggs, 2001, 62.
65. See, for example, Faber-Langendoen and Karlawish, 2000.
66. Ziegler, 2009.
67. S 59 of the Coroners and Justice Act 2009 simplified the wording of the s 2 offence so that it applies to 'an act capable of encouraging or assisting the suicide or attempted suicide of another person' where the defendant intended to encourage or assist.
68. It has presumably prevented some from assisting. For example, Debbie Purdy claimed she would not allow her husband to assist her unless the current legal position was clarified. 'Debbie Purdy: "We've got our lives back" ' The Independent (31 July 2009). See the later discussion of Debbie Purdy's case in this section.
69. On which, see the later discussion in s IV.A. See also R Huxtable, 'The Suicide Tourist Trap: Compromise across Boundaries' (2009) 6 Bioethical Inquiry 327.
70. See 'No charges over assisted suicide' BBC News Report (9 April 2003), http.://news.bbc.co.uk/1/hi/england/merseyside/2933589.stm.accessed 26 March 2010.
71. See 'Euthanasia man's partner arrested' BBC News Report (23 July 2009), http.://news.bbc.co.uk/1/hi/england/london/8165633.stm.accessed 26 March 2010.
72. See 'Professor Craig Ewert's final moments to be broadcast on TV' The Times (10 December 2008).
73. See 'Rugby star Dan James in "assisted suicide" after training injury' The Times (18 October 2008).
74. 'Parents of rugby player in Dignitas assisted suicide will not face charges' The Daily Telegraph (12 September 2008) and n 49, below.
75. 'By the timeyou read this, Iwill be dead' The Daily Telegraph (25 January 2006).
76. 'Anne Turner sang songs and joked with her children-then she went to a clinic to die' The Independent (25 January 2006). It should be noted that Anne Turner needed less assistance to commit suicide. Her son stated that 'Our mother was relatively able-bodied when she went off to Switzerland'.
77. See 'A short stay in Switzerland' BBC News Report (22 January 2009), http.://news.bbc.co.uk/1/hi/health/7844031.stm.accessed 26 March 2010.
78. See 'Why I took my wife to die at Dignitas' The Daily Telegraph (10 July 2009). 49.
79. See further Decision of Prosecution-The Death by Suicide of Daniel James, 9 December 2008, http://www.cps.gov.uk/news/articles/death_by_suicide_of_daniel_james/index.html.accessed 26 March 2010.
80. On which, see later, s IV.A. See Decision of Prosecution, above, n 49.
81. For commentary, see A Mullock, 'Prosecutors Making (Bad) Law?' (2009) 17 Med L Rev 290.
82. See Decision of Prosecution, above, n 49.
83. I recognise that the first and third of these reasons for having relatives present during the final act of dying would also apply in the context of a 'natural' death, a point to which I will return in the concluding section.
84. 'Hewitt Seeks Suicide Law Change' BBC News Report (20 March 2009), http.://news.bbc.co.uk/1/hi/health/7954581.stm.accessed 26 March 2010.
85. 'Anne Turner sang songs and joked with her children-then she went to a clinic to die', above, n 47.
86. BE Chabot and A Goedhart, 'A survey of self-directed dying attended by proxies in the Dutch population' (2009) 68(10) Social Science and Medicine 1745, 1746.
87. 'Euthanasia man's partner arrested', above, n 44.
88. Unlike Dianne Pretty. See R (on the application of Pretty) v DPP [2002] 1 AC 800 and later, s IV.A.
89. See especially paras 40 and 43.
90. EWHC 2565.
91. [2009] EWCA Civ 92.
92. See paras 47-62 of the Court of Appeal judgment in Purdy. The decisions were also somewhat inevitable given the judiciary's marked conservatism in this area of law, at least until the subsequent House of Lords' judgment in the case.
93. For the Court of Appeal judges, Mrs Purdy was asking for 'the nearest thing possible to a guarantee that if... her husband assists her suicide when she is no longer able to end her own life by her own unassisted actions, he would not be prosecuted'. But, according to the Court, 'Without giving what in realitywould amount either to immunity fromprosecution or the promulgation of a policywhichwould effectively discount the risk of a prosecution in this particular case (which it is accepted cannot be provided) Ms Purdy cannot achieve her true objective'. Para 73 of the judgment (per Lord Judge CJ). 64 R (on the application of Purdy) v DPP [2009] UKHL 45.
94. See Cartwright's commentary on all of the Purdy judgments: 'Commentary: 48 Years On: Is the Suicide Act Fit for Purpose?' (2009) Med L Rev 467-76.
95. Pretty v UK (2002) EHRR 1.
96. See para 34, per Lord Hope and also paras 38 and 39.
97. The House of Lords judges also considered whether assisting another to travel to another country for assisted suicide fell within the ambit of the s 2(1) offence. There was an interesting difference of opinion on this matter. According to Lord Phillips, as s 3(3) of the 1961 Act states that the Act extends only to England and Wales, s 2(1) would seem not to apply to assisting in a suicide that takes place anywhere else and consequently, the assistor would commit the offence of murder (see especially paras 11 and 12). Rejecting contrary academic opinion, Lord Hope concluded that since s 2(1) applies to any of the acts it describes which are performed in this jurisdiction, it does not matter that the final act of suicide occurs elsewhere.
98. (See paras 18, 23, and 24 and M Hirst, 'Suicide in Switzerland: Complicity in England?' [2009] Crim LR 335-9).
99. Logically, it would seem that Lord Hope's interpretation of the law is the correct one; it is difficult to believe that having decided assisting a suicide is a serious wrong that should remain an offence, parliament would have intended to remove from the grasp of the criminal law acts of assisting in the suicide process which occur here when the final act of suicide occurs elsewhere.
100. The current version of this was published in 2010 and is available at, http://www.cps.gov.uk/publications/docs/code2010english.pdf.accessed 24 March 2010.
101. Decision of Prosecution, above, n 49.
102. See paras 53-4, 64, 79-83, 85-6, 97, and 102-3.
103. At para 54 (my emphasis).
104. At para 53.
105. Mullock, 2009, 297.
106. This is despite the fact that there was a very real concern that when suicide was decriminalized, there would be 'imaginable cases of impatiently rapacious heirs and manipulable relatives which was in good measure responsible for the continuation of criminal liability for complicity in another's suicide'.
107. KJM Smith, 'Assisting in Suicide' [1983] Crim LR 579, 586.
108. Whether a relative assistor would be able to benefit financially from his/her relative's death is a matter that has been considered extensively by J Davey and J Coggon, 'Life Assurance and the Consensual Death: Law Making for the Rationally Suicidal' (2006) 65 CLJ 521-48.
109. See above, n 1. The consultation period was twelve weeks.
110. For the DPP's response to the public consultation, the summary of responses and an explanation of the differences between the interim and final policies, see CPS, Public Consultation Exercise on the Interim Policy for Prosecutors in respect of Cases of Assisted Suicide (Crown, London 2010),http://www.cps.gov.uk/consultations/as_responses.pdf.accessed 24 March 2010.
111. As is recognised within the policy, some (including this author) may consider that referring to the individual who commits suicide with assistance as a 'victim' is problematic (CPS, 2010, 1). On a legal level, the status of 'victim' implies that a criminal offence or civil wrong has been committed against the individual. While it is indeed true that the act of assisting suicide amounts to a crime, on a moral level, I seriously doubt that it constitutes a wrong against the individual who wishes to die and seeks assistance in order to do so.
112. See below, n 196.
113. CPS, 2010, para 43.
114. For detailed analysis of the policy, see A Mullock's paper in this issue.
115. In the first RFASA case in which the final prosecution policy was applied, the CPS concluded that therewas no evidence that the son of Sir Edward and Lady Downes was motivated by the financial gain he received upon their deaths: 'The evidence and information available indicates that Mr Downes was wholly motivated by compassion.'.
116. See Statement by Keir Starmer QC regarding the deaths of Sir Edward and Lady Downes, 19 March 2010, http://www.cps.gov.uk/news/press_statements/the_death_of_sir_edward_and_lady_downes/.accessed 26 March 2010.
117. Above, n 64, para 84.
118. Baroness Hale was quoting Baroness O'Neill in the House of Lords' debate on Lord Falconer's defeated amendment in July 2009, on which, see the discussion in this section below.
119. See para 54 for similar wording, again, from Lord Hope.
120. Lord Judge CJ expressed the Court of Appeal judges' sympathy 'for the dreadful predicament' which Debbie Purdy and her husband faced. At para 81.
121. CPS, 2010, para 45(2) and (5).
122. [1992(] 12 BMLR 38. Biggs, 2001, 65.
123. J Horder, 'Some Reflections on Beecham's Case' (1988) Journal of Criminal Law 309, 312. Note also Coggon's reference to RFASA cases as 'a sympathetic act of companionship at a moment of the most profound torment'.
124. J Coggon, 'Assisting "Death Tourism": Possible Prosecution or Pragmatic Immunity?' (2008) Cardiff Centre for Ethics, Law, and Society 2. http://www.ccels.cf.ac.uk/archives/issues/2008/index.html.accessed 26 March 2010.
125. L Blum, 'Compassion' in A Oksenberg Rorty (ed), Explaining Emotions (University of California Press, Los Angeles 1980), 507, 509, and 510.
126. See also B Carr, 'Pity and Compassion as Social Virtues' (1999) 74(3) Philosophy 411, who refers to compassion as involving 'a shared experience of suffering' (at 411).
127. 'Why I took my wife to die at Dignitas' above, n 48. Consider also the comments of Anne Turner's son, Edward Turner in 'Clinic assists doctor's suicide' BBC News Report (24 January 2006),http.://news.bbc.co.uk/1/hi/health/4625538.stm.accessed 26 March 2010.
128. 'Why Daniel James chose to die' The Times (19 October 2008).
129. 'Mother defends rugby suicide son' BBC News Report (18 October 2008), http.://news.bbc.co.uk/2/hi/uk_news/england/hereford/worcs/7677706.stm.accessed 26 March 2010.
130. 'Hewitt Seeking Suicide Law Change' BBC News Report (20 March 2009) http://news.bbc.co.uk/1/hi/uk_politics/7953570.stm.
131. 'Hewitt Leads Call to Protect Suicide Helpers' The Independent (20 March 2009). Hewitt's amendment was not voted on. In contrast to the proposals from Patricia Hewitt and Lord Falconer, the failed Assisted Dying for the Terminally Ill Bill (the most recent version of which was presented in 2005) was framed around medicalised assisted death, since it would have permitted health care professionals to assist a 'qualifying patient' to die.
132. See clauses 1 and 8 of the Assisted Dying for the Terminally Ill Bill 2005,,http://www.publications.parliament.uk/pa/ld200506/ldbills/036/2006036.pdf.accessed 26 March 2010.
133. Hansard, HL Deb, 7 July 2009, col 597.
134. Hansard, HL Deb, 7 July 2009, col 634.
135. See 'Government may consider assisted suicide bill' The Daily Telegraph (4 August 2009) and the reference to Lord Alderdice's failed amendment in the final section of this paper.
136. Hansard, HL Deb, 7 July 2009, cols 606, 611-2, 614, 620, 622, and 625.
137. See also H Biggs, 'Criminalising Carers: Death Desires and Assisted Dying Outlaws' in B Brooks-Gordon and others (eds), Death Rights and Rites (Hart, Oxford 2007) 58, 64.
138. For just a few examples, see ' "Loving son" kills parents' BBC News Report (4 April 2003), http://news.bbc.co.uk/1/hi/england/2916731.stm.
139. 'Assisted suicide man walks free' BBC News Report (19 October 2006), http://news.bbc.co.uk/1/hi/england/southern_counties/6065836.stm.
140. 'Mercy killing husband spared jail' BBC News Report (2 September 2005), http://news.bbc.co.uk/1/hi/england/somerset/4209296.stm.
141. Horder, 1988. All web pages last accessed 26 March 2010. A large number of RAS and mercy killing cases have been discussed by Huxtable.
142. See Huxtable, 2007, chs 2 and 3.
143. See also S Ost, 'Euthanasia and the Defence of Necessity: Advocating a More Appropriate Legal Response' in CA Erin and S Ost (eds), The Criminal Justice System and Health Care (OUP, Oxford 2007) 99, 105-9.
144. It is interesting to note that even in a jurisdiction where certain instances of assisted death are lawful, RAS does occur. Although only physician assisted death is lawful in the Netherlands, quantitative research indicates that cases of assisted death do occur where someone other than a doctor has prepared the drugs for the individual to take.
145. B Chabot, Auto-euthanasie: verborgen stervenswegen in gesprek met naasten (Uitgeverij Bert Bakker, Amsterdam 2007). Referred to in J Griffiths and others, 2008, 182-4.
146. When RAS does occur, it must be because the parties involved have decided not to involve a physician for whatever reason, or physicians have been approached and concluded that criteria for lawful assisted death by physician would not be met.
147. (See also Chabot and Goedhart, 2009, 1746 and 1750). Significantly, then, these Dutch cases evidence a de-medicalisation of assisted dying, since such instances of assisted suicide do not meet the requirements of the (lawful) medical model.
148. See 'Devoted mother Kay Gilderdale should never have been prosecuted, says judge' The Times (26 January 2010).
149. 'Why was Kay Gilderdale in court charged with attempted murder?' The Daily Telegraph (26 January 2010). Following the jury's verdict, Bean J stated: 'I do not normally comment on the verdicts of juries but in this case their decision, if I may say so, shows that common sense, decency and humanity which makes jury trials so important in a case of this kind... There is no dispute that you were a caring and loving mother and that you considered that you were acting in the best interests of your daughter'.
150. See 'Mother cleared of ME daughter's attempted murder' BBC News Report (25 January 2010), http.://news.bbc.co.uk/1/hi/england/sussex/8479211.stm.accessed 26 March 2010.
151. See 'Assisted Suicide man walks free', above, n 99.
152. Biggs, 2007, 59.
153. S Ost, 2007, 105-9.
154. See also Huxtable, 2007, ch 2.
155. See Huxtable, 2007, 48.
156. S 2(1) of the Homicide Act 1957, as reformulated by s 52 of the Coroners and Justice Act 2009.
157. Huxtable 2007, 39-41.
158. For academic commentary and analysis, see H Biggs, 'A Pretty Fine Line: Life, Death, Autonomy and Letting it B' (2003) 11(3) Feminist Legal Studies 291.
159. M Freeman, 'Denying Death its Dominion: Thoughts on the Dianne Pretty Case' (2002) 10(3) Med L Rev 245.
160. B Hale, 'A Pretty Pass: When is There a Right to Die?' (2003) 32(1) CLWR 1.
161. Huxtable 2007, 79-82.
162. A Pedain, 'The Human Rights Dimension of the Diane Pretty Case' (2003) 62(1) CLJ 181.
163. Pretty v UK (2002) EHRR 1. Per Mr M Pellonpää, President of the European Court of Human Rights, para 74.
164. R (on the application of Pretty) v DPP [2002] 1 AC 800, per Lord Bingham at 826.
165. See also Lord Hobhouse's judgment, 851-2.
166. G Bosshard, 'Switzerland' in Griffiths and others, 2008, 463, 470.
167. Significantly, reform of the Swiss legal position is on the horizon. The Swiss federal government is concerned about 'suicide tourism' and wishes to ensure that assisted dying should only be used as a last resort. A bill will be introduced into Parliament following a public consultation which ended on 1 March 2010. Two legislative proposals were published for consultation, one which will impose stricter regulations on assisted dying, such as the need for the individual's condition being incurable and likely to be fatal within months, for the opinion of two medical professionals on this matter and for more detailed written records from the right-to-die organisation. The other proposal would ban assisted dying completely.
168. See ' "Death tourism" leads Swiss to consider ban on assisted suicide' The Guardian (28 October 2009).
169. 'Swiss crackdown on "suicide tourism" could spell end of Dignitas clinic' The Times (29 October 2009).
170. 'Switzerland Plans New Controls on Assisted Suicide' BBC News Report (2 July 2010),http://news.bbc.co.uk/1/hi/england/sussex/8479211.stm.
171. http://www.bbc.co.uk/news/10461894.accessed 3 July 2010.
172. The latter being an implicit condition. See Bosshard, 2008, 471-2.
173. SA Hzzzurst and A Mauron, 'Assisted Suicide and Euthanasia in Switzerland: Allowing a Role for Non-Physicians' (2003) 326 BMJ 271.
174. Although Dignitas has been trialling assisted suicide by a non-drug method which would remove physicians' prescribing role.
175. See RD Ogden, WK Hamilton and C Whitcher, 'Assisted Suicide by Oxygen Deprivation with Helium at a Swiss Right-To-Die Organisation' (2010) 36 JME 174.
176. Bosshard, 2008, 472-3.
177. G Bosshard and others, 'Assessment of Requests for Assisted Suicide by a Swiss Right-To-Die Society' (2008) 32 Death Studies 646, 653.
178. Bosshard, 2008, 479.
179. Ziegler, 2009, 322.
180. S Fischer and others, 'Suicide Assisted by Two Swiss Right-To-Die Organisations' (2008) 34 JME 810.
181. Bosshard, 2008, 474.
182. Bosshard and others, 2008, 647.
183. See LA Minelli, 'DIGNITAS in Switzerland' (2007) 3., http://www.dignitas.ch/WeitereTexte/FriendsAtTheEnd.pdf.accessed 26 March 2010. The other right-to-die organisation which accepts non-residents is Exit International.
184. Bosshard, 2008, 471.
185. Although it has been alleged by a former senior member of staff at Dignitas, Soraya Wernli that 'Some foreigners-Germans and English-would come to Zurich in the morning, be taken to the doctor and by mid-afternoon they were dead'.
186. See 'Murky truth behind Swiss suicide "clinic" Dignitas' The Times (25 October 2008).
187. Minelli, 2007.
188. Bosshard, 2008, 476. Bosshard estimates that approximately 0.5 per cent of all deaths in Switzerland are assisted suicides (at 477).
189. Ziegler, 2009, 325.
190. See the discussion in the next sub-section.
191. Griffiths, Weyers and Adams, 2008, 184.
192. LJN: BI5890, Rechtbank Almelo, 08/750709-07.
193. See, http.://zoeken.rechtspraak.nl/resultpage.aspx?snelzoeken=true&searchtype=ljn&ljn=BI5890&u_ljn=BI5890.accessed 26 March 2010. Translation provided by Marleen Eijkholt.
194. Under Art 294 of the Dutch Penal Code. Schellekens is currently appealing against the sentence imposed.
195. See 'Hoger beroep Gerard Schellekens', Mag Ik Dood? blog, 21 June 2009, http.://weblogs.hollanddoc.nl/magikdood/2009/06/21/hoger-beroep-gerard-schellekens/.accessed 7 April 2010.
196. Since November 1998, Regional Review Committees review reported cases of euthanasia and have provided further elucidation of the due care criteria that physicians must comply with under Dutch law. If the Committee decides that the physician involved has not complied with the law, then only at this stage do the prosecution authorities becomes involved.
197. See Griffiths, Weyers and Adams, 2008, 85-90.
198. Baroness Hale in R (on the application of Purdy) v DPP, above, n 64, para 68.
199. Consider Lord Joffe's Assisted Dying for the Terminally Ill Bill, the Dutch law and Oregon's Death with Dignity Act, for example. On the latter, see Ziegler, 2009, 320-2.
200. Although there is no requirement under Swiss law that the person requiring assistance suffers from a medical condition (at least at this moment in time, see above, n 112), the existence of a medical condition is a pre-requisite for the practice of assisted suicide through right-to-die organisations.
201. See Bosshard, 2008, 471.
202. R Huxtable and M Möller, ' "Setting a Principled Boundary"? Euthanasia as a Response to "Life Fatigue" ' (2007) 21(3) Bioethics 117, 121.
203. See also McLean, 2007, 180.
204. See further Griffiths and others, 2008, 84.
205. See T Sheldon, ' "Existential" Suffering not a Justification for Euthanasia' (2001) 323 BMJ 1384.
206. Nederlandse Jurisprudentie 2003, no. 167.
207. See, http.://archives.tcm.ie/breakingnews/2002/12/24/story81954.asp.accessed 15 March 2010.
208. Significantly, a citizens' initiative, 'Out of Free Will', has recently collected over 100,000 signatures in support of its campaign for legal reform to permit specially trained non-medical staff (including nurses and psychologists) to assist individuals aged over 70 who wish to die because they are tired of life. It seems that the matter will now be debated by the Dutch Parliament.
209. See 'Dutch plan to let healthy elderly people commit suicide' Daily Telegraph (10 March 2010).
210. ' "Right to die" for elderly back at centre of Dutch debate' NRC International (9 February 2010), http://www.rnw.nl/english/print/59439.accessed 15 March 2010.
211. KNMG, Op zoek naar normen voor het handelen van artsen bij vragen om hulp bij levensbeëindiging in geval van lijden aan het leven: verslag van de werkzaamheden van een commissie onder voorzitterschap van prof. J Dijkhaus (KNMG, Utrecht 2004).
212. Griffiths, Weyers and Adams, 2008, 35-8, and at 49-50.
213. Huxtable and Möller, 2007, 121-2.
214. HRW Pasman and others, 'Concept of Unbearable Suffering in Context of Ungranted Requests for Euthanasia: Qualitative Interviews with Patients and Physicians' (2009) 339 BMJ b4362.
215. There is, therefore, a policy reason for justifying what appears to be an arbitrary distinction; we might accept that existential pain and suffering could be as unbearable as suffering deriving from a medical condition, but maintain that a line should be drawn between the two because this better safeguards against abuse. This is a similar line of approach to that adopted by the European Court of Human Rights in Pretty v UK when considering Art 8(2) of the ECHR (at para 74).
216. See Capron, 1996, 22.
217. Huxtable and Möller, 2007, 124.
218. ML Rurup and others, 'Requests for Euthanasia or Physician-assisted Suicide from Older People Who Do Not Have a Severe Disease: An Interview Study' (2005) 35 Psychological Medicine 665, 670.
219. See also AF Jorm and others, 'Factors Associated with the Wish to Die in Elderly People' (1995) 24 Age and Ageing 389.
220. P Strang and others, 'Existential Pain-An Entity, a Provocation, or a Challenge?' (2004) 27(3) Journal of Pain and Symptom Management 241, 243.
221. Strang and others, 2004, 242. The concept was first proposed by Dame Cicely Saunders.
222. See C Richmond, 'Dame Cicely Saunders' (2005) 331 BMJ 238.
223. See ML Rurup and others, 'When Being "Tired of Living" Plays an Important Role in a Request for Euthanasia or Physician-Assisted Suicide' (2005) 74 Health Policy 157 (hereafter Rurup and others, 2005b), 160.
224. '[P]eople with severe diseases do not usually request [physician assisted death] exclusively for medical reasons, but also because of the complex psychological effects of their medical condition and its consequences'.
225. Huxtable and Möller, 2007, 123.
226. D Kissane, D Clarke and A Street, 'Demoralization Syndrome-A Relevant Psychiatric Diagnosis for Palliative Care' (2001) 17 Journal of Palliative Care 12.
227. D Clarke and D Kissane, 'Demoralisation: Its Phenomenology and Importance' (2002) 36 Australian and New Zealand Journal of Psychiatry 733.
228. DW Kissane, 'The Contribution of Demoralization to End of Life Decisionmaking' (2004) 34(4) Hastings Center Report 21.
229. M Parker, 'Medicalizing Meaning: Demoralization Syndrome and the Desire to Die' (2004) 38(10) Australian and New Zealand Journal of Psychiatry 765, 766.
230. rd Report-Perspectives on a Changing Society (Sage, London 2007) 35.
231. 'We presented respondents... with descriptions of patients with different conditions, a number of which were incurable or terminal... The public acceptability of voluntary euthanasia clearly depends on how ill someone is'.
232. 'Public in strong backing for right to assisted suicide' Sunday Times (14 December 2008). More recently, a YouGov poll carried out for the Daily Telegraph revealed that 80 per cent of participants did not wish to see relatives who assist in a loved one's suicide prosecuted. See 'Assisted suicide: 4 in 5 say do not prosecute' Daily Telegraph (31 January 2010).
233. See phenomenological research studies in other contexts, such as B Brown and others, 'Relatives' Lived Experiences of Complementary Therapies in a Critical Care Department-A Phenomenological Study' (1999) 12(4) Australian Critical Care 147.
234. C Wallengren, K Segesten and F Friberg, 'Struggling for Freedom-Lived Experiences of Being a Relative of a Stroke Survivor in the First Six Months After Hospital Discharge' (2008) 3(4) International Journal of Qualitative Studies on Health and Well-Being 230.
235. AJ Walters, 'The Lifeworld of Relatives of Critically Ill Patients: A Phenomenological Hermeneutic Study' (2007) 1(1) International Journal of Nursing Practice 18.
236. CPS, 2010, paras 39 and 47.
237. Although MPs who have signed an Early Day Motion laid in the House of Commons on 1 December 2009 were of the view that that the policy has done more than maintain the status quo, considering that it has overridden the will of Parliament and put 'the vulnerable at grave risk'. See CPS, 2010, para 1.15.
238. Biggs, 2007, 71. And it provides clarity for those who plan to assist a loved one's suicide in cases of RAS and all other assisted suicide cases. The DPP's policy applies to any act of assisted suicide, whether the final act occurs within this jurisdiction or abroad.
239. See CPS, 2010, para 8.
240. 'Change in Assisted Dying Law Rejected' BBC News Report (7 July 2009), http.://news.bbc.co.uk/1/hi/health/8139621.stm.accessed 26 March 2010.
241. See also R Huxtable and K Forbes, 'New Interim Guidance on Assisted Suicide' (2009) 339 BMJ 1209, 1210.
242. Although, as Huxtable notes, 'allowing assisted suicide tourism need not mark the first step in the direction of allowing assisted suicide back home'. Huxtable, 2009, 334.
243. See also Coggon, 2008, 13.
244. At para 83 (emphasis in original).
245. See also Hurst and Mauron, 2003.
246. See above, n 93.
247. Biggs, 2007, 68.
248. Salem, 1999, 33 (emphasis in original).
249. C Seale, 'Legalisation of Euthanasia or Physician-assisted Suicide: Survey of Doctors' Attitudes' (2009) 23 Palliative Medicine 205, 209.
250. 'Doctors oppose legal protection for assisted suicide relatives' The Guardian (1 July 2009). BMA members who voted were 'overwhelmingly' against such legal reform.
251. See 'RCN neutral on assisted suicide' BBC News Report (25 July 2009),http.://news.bbc.co.uk/1/hi/health/8167454.stm.accessed 26 March 2010.
252. D Cohen, 'BMA Meeting: Doctors Vote against Protecting Relatives Who Accompany People Abroad for Help with Dying' (2009) 339 BMJ 2699. A similar position appears to be taken by the medical profession in the United States.
253. see Faber-Langendoen and Karlawish, 2000, 482.
254. D Sullivan, 'Euthanasia Versus Letting Die: Christian Decision-making in Terminal Patients' (2005) 21(2) Ethics and Medicine 109.
255. Hurst and Mauron, 2003, 273.
256. For a contrasting view, see S Woien, 'Life, Death, and Harm: Staying within the Boundaries of Nonmaleficence' (2008) 8(11) American Journal of Bioethics 31.
257. Capron, 1996, 17.
258. E Jackson, 2007, 41.
259. Faber-Langendoen and Karlawish, 2000, 484.
260. I suggest that the means of causing death be lethal drugs because although there are non-medical means of causing death, as stated in s II, medication is considered to offer the quickest, non-violent end.
261. Bosshard, 2008, 475.
262. Bosshard, 2008, 478-9. Or note Brazier's suggestion that the role could be taken on by a 'licensed thanatologist'.
263. Brazier, 1996, 322.
264. Parallels can be drawn here with the importance of medical expertise regarding psychiatric aspects of capacity in the context of ascertaining testamentary capacity for executing a will.
265. See KI Shulman, I Hull and CA Cohen, 'Testamentary Capacity and Suicide: An Overview of Legal and Psychiatric Issues' (2003) 26 International Journal of Law and Psychiatry 403. I note that it is not a legal requirement regarding testimonial capacity that capacity be medically evaluated.
266. See the views expressed by Baroness Butler-Sloss and Lord Patten, Hansard, HL Deb, 26 October 2009, cols 1080 and 1082.
267. Bosshard and others, 2008, 647.
268. Cf Minelli's view in Select Committee on Assisted Dying for the Terminally Ill Bill, Minutes of Evidence Examination ofWitnesses, Visit of a Delegation of the Select Committee on Assisted Dying for the Terminally Ill Bill to DIGNITAS, Switzerland (Questions 2325a - 2397), 3 February 2005, 9, http://www.dignitas.ch/media_dignitas/Visit_to_Dignitas.pdf.accessed 26 March 2010.
269. Medical professionals provided qualitative comments regarding a policy to permit medically assisted dying. 31 per cent were in favour of such a policy and 27 per cent of these participants stated that there was a need for non-medics to carry out assisted death. Seale, 2009, 208-9. There is evidence to suggest that a significant proportion of members of the medical profession are not in favour of a change in the law to provide immunity to relatives in RFASA cases. At the same BMA conference referred to above, 52 per cent of BMA members opposed calls to revise the law so that cases of RFASA are exempted from prosecution. 'Doctors oppose legal protection for assisted suicide relatives', above, n 173. 44 per cent did not oppose such legal reform.
270. Faber-Langendoen and Karlawish, 2000, 484.
271. See also Bosshard, 2008, 480.
272. Capron, 1996, 15.
273. Bosshard and others, 2008, 655.
274. See also Salem, 1999, 32.
275. This could well be the reason why the members of the public who took part in the British Social Attitudes survey in 2005 were less likely to support RAS than assisted dying involving a doctor.
276. See Cleary and others, 2007, 42.
277. See above, n 128.
278. Such as the fact that law makers in this jurisdiction have no control over the Swiss legal provisions.
279. 'RCN neutral on assisted suicide', above, n 173.
280. See Rurup and others, 2005b, 158 and 163.
281. As expressed by Lord Hope in Purdy, at para 31.
282. I am thus suggesting that to succeed in their venture, advocates of legal reform should unite their claims with widely accepted cultural values, the process of 'frame alignment'.
283. see further Hillyard and Dombrink, 2001, 19-20, 245-8.
284. Notably, according to the DPP's prosecution policy regarding assisted suicide, there is a public interest factor in favour of prosecution where the assistor is a health care professional. However, this should not be taken to suggest that if assisted dying were to be legalised in this jurisdiction, a medical model would not be the favoured approach. This factor was inserted into the final policy because it was identified by 34 per cent of 537 respondents who identified other factors in favour of prosecution that were not in the interim policy. The CPS appears to have included this in the final policy because it was a leading factor given by these respondents, but gives no explanation as to why this should be a factor in favour of prosecution (see above, n 76, paras 3.3, 3.5, and 3.7). Besides the ambiguity that I submit this lack of justification presents, assistance from a health care professional was only suggested as a factor favouring prosecution in a total of 184 out of 4,710 total responses to the DPP's consultation and as noted earlier, it is a model involving the assistance of medical professionals that has been the model most consistently presented when legal reform is proposed.
285. see above, nn 33, 168-70.
286. See S Sheldon, 'The Abortion Act 1967: A Critical Perspective' and J Bridgeman, 'A Woman's Right to Choose?' in E Lee (ed), Abortion Law and Politics Today (Macmillan Press, Basingstoke1998) 43 and 76.
287. S Sheldon, Beyond Control: Medical Power and Abortion Law (Pluto Press, London 1997).
288. S Sheldon, 'The Law of Abortion and the Politics of Medicalisation' in J Bridgeman and S Millns (eds), Law and Body Politics: regulating the Female Body (Aldershot, Dartmouth 1995) 105.
289. S Sheldon, 'Subject Only To the Attitude of the Surgeon Concerned: The Judicial Protection of Medical Discretion' (1996) 5 Social & Legal Studies 95.
290. See also Hurst and Mauron, 2003, 273.