The respective Parliaments in the Netherlands and in Britain embarked upon parallel tracks with regards to voluntary euthanasia. It remains a criminal offence in Britain, and will result in a murder decision; under S2 of the Suicide Act 1961, it is an offence to ‘aid, abet, counsel or procure the suicide of another’.
Conversely, it is legalised in the Netherlands, as a result of the Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2001. Central to the concept of euthanasia are the principles of autonomy and the protection of life. Indeed, Baroness Hale stated that the ‘prime object must be to protect people who are vulnerable’ but also to ‘protect the right to exercise a genuinely autonomous choice’, thereby invoking a complex weighting exercise (R (on the application of Purdy) (Appellant) v. Director of Public Prosecutions (Respondent) [2009] UKHL 45). This essay will examine this divergence, by looking into its legislative history and its resulting case law in order to determine where states should weigh the scales. The debate on euthanasia is of growing importance due to its increasing use - the number of assisted suicides in the Netherlands rose by 13% in 2012 (Guardian, 2013) as well as the ever-changing medical climate. As long as medical improvements continue, there will be a moment when life will become brutish and long (Ost and Mullock, 2011), making possibilities for reform even more crucial.
Euthanasia is defined as ‘the painless killing of a patient suffering from an incurable and painful disease or in an irreversible coma’ (Oxford English Dictionary). In both Britain and Netherlands lay assisted death is unlawful. On October 23, 2013, Heringa was found guilty because he took the law into his own hands in assisting the suicide of his stepmother (Heringa v. Netherlands, 2013). However, the court decided not to impose a punishment in view of his age and his compassionate motivations (The Amsterdam Herald, 2013). Similarly, in United Kingdom, Keir Starmer’s new emphasis on the suspects’ motivation draws a crucial distinction between ’compassionate support’ and ’malicious encouragement’ (Guardian, 2013). For instance, Frances Inglis was found guilty of murder for killing her son as she believed he was trapped in a ‘living hell’ following his accident (R v. Inglis [2010] EWCA Crim 2637). Arguably she presented herself as too absorbed in her own emotional concerns to act fully in terms of what was right for her son. Conversely, Kay Gilderdale was acquitted of attempted murder; the judge described her as a ‘caring and loving mother’, who was attempting to follow her daughter’s wishes (Gilderdale v. UK, 2010).
While Dutch law allows physician assisted suicide, its expanse is limited; it refuses to accept ‘tired of life’ cases as a justification. In Brongersma [2002] HR, it was held that assistance would invite an unqualified right to patient self-determination and doubt was expressed as to the ‘unbearable’ nature of the suffering, which is one of the key criteria which permits euthanasia (Ost and Mullock, 2011). One may question whether the absence of a medical basis is enough to deny an individual the right to end their life. Their suffering may still be unbearable and hopeless –arguably the source is not the deciding factor (Ost and Mullock, 2011).
In the Netherlands, General Practitioners are accountable for 87% of cases of Assisted Suicide; GPs are favoured for their anti-paternalistic attitudes, ultimately allowing the autonomy of the individual to prevail. In the Netherlands, Article 293 of the Criminal Code is preserved, but a special defence is granted to physicians – if the criteria of due care is fulfilled, it grants, not an excuse, but a justification of transgression of the law. Arguably this is central to the concept of Dutch tolerance – a pragmatic tool which allows discussion through the postponement of moral judgment (Buruma, 2011). On the other hand, in Britain, doctors are sometimes treated differently from parents as they face conflicting duties. This is revealed by a Court of Appeal decision on separation of conjoined twins, where the doctors satisfied the test for the criminal intent of murder, yet the defence of necessity was granted (Re A (Children)(Conjoined Twins: Surgical Separation) [2001] 2 WLR 480). Nevertheless, physician assisted death remains unlawful in the UK. Thus the only option is to find someone willing to break the law (Ost and Mullock, 2011). Perhaps this is an illustration of the difference between law and morality in Britain. Indeed, a fundamental operation of criminal law is the preservation of society’s moral fabric through punishment. This was revealed by a case where the defendant was convicted of the offence of conspiracy to corrupt public morals (Shaw v. DPP [1962] AC 220). However, Giles Fraser, in a recent debate, argues that complicated moral dilemmas ‘can’t be dealt with by the blunt instrument of the law’.
In Britain the right to self-determination pervades the whole of the criminal law. It was held that respect for the liberty of the individual is ‘perhaps the most fundamental precept of the common law’ (R v. Kennedy [2007] 3 WLR 612). Regarding euthanasia, English law continues to punish individuals who do not deserve any form of punishment – they deserve nothing but sympathy for being driven, purely by love and compassion, to end the lives of their loved ones. Ironically, even if it seeks to preserve the moral fabric of society, it is an illustration of the law’s moral ineptitude in its dealings with euthanasia. Furthermore, the case of Tony Nicklinson illustrates that the individual happiness of the patient is sacrificed. The courts regarded his desire to end his life as the ultimate ‘harm’ even if it would relieve him of suffering, enabling him an escape from ‘his own personal purgatory’. Instead, the court overrode his ability to consent, and thus, as his daughter claims, ‘a stroke broke Dad's body, but it was the British legal system that broke his heart’. Conversely, the Dutch have progressed much further in recognising this in the legalisation of physician assisted death, suggesting a victory for autonomy and capacity to decide one’s own fate. The Dutch model is clearly preferable, although one may question the effectiveness of a law which criminalises and then effectively tolerates or forgives, with regards to lay assisted death (Ost and Mullock, 2011). The refusal of the Dutch to recognise existential suffering remains a barrier which must be overcome. A change in the law is crucial.
To conclude, the perpetual conflict between autonomy and protection of the individual is in clear need of resolution. While there must be safeguards to ensure that individuals are not being pressured to end their lives, ultimately the individual is at the heart of the matter and their autonomous wishes should prevail. Why prolong inevitable suffering for a life that no longer wants to be lived?
