Better off dead? Best interests assisted death

Abstract

In England and Wales, assisted death (assisted suicide and voluntary euthanasia) is in principle subject to criminal prohibition. In practice not all instances of assisted death are prosecuted or punished. If assisted death is morally permissible, this provides a reason for law reform.

Permissive law reform on assisted death is unlikely through Parliament. Judicially-initiated law reform on assisted death is perhaps more promising. In R (oao Nicklinson) v Ministry of Justice [2014] UKSC 38, a majority of the Supreme Court took the view that the criminal prohibition on suicide assistance quite possibly infringes the right to decide how and when to die protected by article 8 ECHR. However, the courts have refrained from substantive law reform on assisted death, in part out of concern for the constitutional/institutional legitimacy of such action, and in part out of hostility to extension of the defence of necessity to encompass murder.

This thesis develops and defends a common law model for physician-assisted death (best interests physician-assisted death) that addresses the concerns of the courts. Assisted death can be legalised through the medical exception. This leaves the general criminal law undisturbed, and develops the common law in an area that is legitimately the province of the courts. Moreover, while recognising an individual’s fundamental freedom to decide how and when to die, physician-assisted death through the medical exception does not permit assisted suicide or voluntary euthanasia on demand; it restricts access to a ‘good’ death to circumstances in which nonexistence is better for an individual. As such, best interests physician-assisted death instantiates optimal moral conditions, that is:

Assisted death is permissible iff p (autonomously) wishes to die, suffers gravely (intensely and persistently), and death is a proportionate response to her suffering.

Date of Award	1 May 2016
Original language	English
Awarding Institution	King's College London
Supervisor	Penney Lewis (Supervisor) & John Stanton-Ife (Supervisor)