Reforming the criminal law on assisted dying: a proposal for new defences

Abstract

This thesis proposes the creation of new defences to reform the criminal law of England on assisted death. Life is considered an overriding value, but sometimes it should be ended when death is in our best interests due to the experience of intense suffering along with an autonomous wish to die. This argument has been widespread in many foreign jurisdictions with right-to-die legislation. Foreign jurisdictions often limit their legislation to physician-performed assisted death. Nonetheless, there are also cases in which untrained individuals assist loved ones to die motivated by compassion. Our current legal system criminalises both physician-assisted death and compassionate killings, even though it is often considered that they deserve more lenient treatment. This thesis proposes new defences for each of these different types of conduct. A more lenient approach might be achieved by applying one of the existing defences of diminished responsibility, necessity or consent. Then we can continue to recognise the wrong of killing, but we can also exonerate partly or fully the offenders based on the exceptional circumstances present. Diminished responsibility, due to its current medicalised nature after its 2009 reform, is unlikely to be successful in such cases. While necessity is generally inapplicable to killings, there is an argument to be made for its exceptional application to euthanasia. However, it is unlikely that this will be accepted by the courts and there are practical problems with its application that might be dangerous to vulnerable individuals. While consent is generally inapplicable to assisted deaths, there are good public interest reasons to allow its exceptional application to physician-assisted deaths. This is the most plausible of the existing defences to use. But because it is not specifically designed for this context, there are important problems when assessing competence, information and voluntariness of the assisted death decision, and it should thus be rejected. Nonetheless, it can provide a useful reference point for creating a new legislative reform proposal on physician-assisted death. In constructing a reform proposal on physician-assisted death, different conceptual theories on defences and offences are valuable. However, it is often difficult at the level of law-making to agree on whether something should be a new defence or an exception to existing offences. A better analysis is given through the required evidential support, as it is desirable to place at least some burden on the grantors of the wish to die, through shaping this as a defence. Upon accepting that life can be overridden by a request to die along with that being in the requestor’s best interests, this would make more sense as a justification defence, as we will be potentially content to have this conduct performed. Physician-assisted deaths represent exceptional cases that there is no essential value in punishing. Thus, this defence should provide full removal of criminal liability. To better protect vulnerable individuals, there must be strict safeguards to assess the assisted death request and the requestor’s medical condition that causes intense suffering. Finally, for the required evidential support a reverse burden of proof is not justified. The legal burden should be on the prosecution to prove that the grantor of the assisted death request cannot be absolved on the ground of this defence. While motives are generally deemed irrelevant to criminal liability, we can reform the current law to create a specific offence or defence for compassionate killings, as they are different from other cases in the law of homicide and often deserve more lenient treatment. However, it is difficult at the level of law-making to decide how this should be constructed, as there are valid arguments for having this either as an offence or as a defence. Taking infanticide as a comparison, compassionate killing could work as a separate offence, a sub-category of homicide, but also as a partial excusatory defence. Unlike for the physician-assisted death defence, a death request is not essential since it is not entailed in the interpretation of compassion. Creating effective safeguards to ensure the experience of intense suffering and that the actor and the sufferer had a close relationship which prompted their compassionate motives are important. When this is used as an offence, the burden of proof will be on the prosecution to prove it beyond a reasonable doubt. However, when used as a defence, a reverse burden of proof on the actor is justified, since it will be very hard for the prosecution to adduce enough evidence to disprove their compassionate motives.