Disability rights leaders fear the Martin assisted suicide court ruling (UK) might lead to euthanasia

The following article was originally published by the Disability News Service in the UK on August 1, 2013. Link to the original article.

Disability News Service - August 1, 2013

A new court of appeal ruling on assisted suicide has alarmed disabled activists, who fear it could “let the genie out of the bottle” by relaxing laws on euthanasia.

Senior court of appeal judges decided by a majority of two to one that the director of public prosecutions (DPP), Keir Starmer, should publish guidance explaining the circumstances in which a healthcare professional can help a disabled man to die without risking prosecution.

Starmer immediately said he would seek permission to appeal to the Supreme Court.

Kevin Fitzpatrick

Dr Kevin Fitzpatrick, of the disabled people’s organisation Not Dead Yet UK, which campaigns against legalising euthanasia and assisted suicide, said such guidance risked a “radical shift” towards the kind of pro-euthanasia culture that exists in the Netherlands and Belgium.

He said such a shift would be “catastrophic” for disabled people and vulnerable older people, who could feel pressured to take the euthanasia option “because it is validated by the medical profession”.

Fitzpatrick said new guidance would “open the door to abuse”, and he warned that as soon as you told a professional that it was allowable in law to help to kill someone, “the genie is out of the bottle”.

He pointed to the speed with which the “well-intentioned” Liverpool Care Pathway – which was intended to lay out palliative care options for patients in the final hours or days of their lives – degenerated into “misuse and abuse”.

And he warned that members of the pro-euthanasia lobby – who believe it is ok to view disabled people and vulnerable older people as “candidates for elimination” – were slowly “chipping away” at the law on assisted suicide.

The disabled man who brought the case, known as Martin, is virtually unable to move following a stroke, and would only be able to end his life with the assistance of a third party.

He wants to travel to die at the notorious Dignitas clinic in Switzerland, but his wife does not wish to assist him, so he wants to enlist the help of a care worker, healthcare professional, or a volunteer from a pro-euthanasia group.

Martin’s lawyers said the existing assisted suicide guidelines issued by the DPP – following the successful court action by Debbie Purdy in July 2009 – offered sufficient “clarity” for friends or relatives who helped someone to die, but were not clear enough for those with no emotional ties to the person who wanted to die, such as healthcare professionals.

Lord Judge

Lord Dyson, the master of the rolls, and Lord Justice Elias, in their majority judgment, said it would be “constitutionally improper” for the DPP to guarantee immunity from prosecution for any class of “helpers”, but it was not impossible or impractical to improve the guidance as it related to healthcare professionals and other helpers.

But the lord chief justice, Lord Judge, in disagreeing with his two colleagues, said he believed the policy was already “sufficiently clear to enable Martin, or anyone who assists him, to make an informed decision about the likelihood of prosecution”.

The same three judges unanimously dismissed appeals by Jane Nicklinson and Paul Lamb, who had both challenged the legal ban on voluntary euthanasia.

Nicklinson is continuing the legal battle begun by her husband, Tony, who refused nutrition, fluids and medical treatment after the high court dismissed his case last year. He died less than a week later. Nicklinson had wanted the law to be changed so that a doctor could end his life without facing a murder charge.

Paul Lamb, who was almost completely paralysed after a car crash, is seeking the same change in the law as Nicklinson.

Lord Judge said assisted suicide law “cannot be changed” by judges, and that “if the law is to be changed, it must be changed by parliament”.

Lamb and Nicklinson will also take their fight to the Supreme Court.

Don't be fooled by Lord Falconer's modest assisted suicide proposals in the UK

The following article was written by Dr Peter Saunders, the campaign director of the Care Not Killing Alliance in the UK, and published on his blog.

Dr Peter Saunders

By Dr Peter Saunders - May 8, 2013

Lord Falconer has finally announced that his long awaited assisted suicide bill will be tabled in the House of Lords next week on Wednesday 15 May.

It is then that we will finally see the full text of the bill which will then proceed to second reading (debate stage) sometime in June, or possibly in the autumn.

According to the BBC and Telegraph the bill will be based on the Oregon model – assisted suicide for mentally competent adults who have less than six months to live.

The timing has been carefully planned. On 13 and 14 May the Court of Appeal will be hearing the case of Paul Lamb, a 57 year old man with quadriplegia, who is seeking permission for a doctor to kill him by means of a lethal injection.

Lord Falconer

Off the back of media coverage of this case, Falconer, who is being backed by Dignity in Dying (the former Voluntary Euthanasia Society), will argue that his proposal is modest in comparison.

Lamb is not terminally ill and wants a doctor to give him a lethal injection (euthanasia).  Falconer however is only asking for people who are terminally ill to have the right to receive help to kill themselves (assisted suicide).

This model, he will argue, will be safer for vulnerable people and will have ‘upfront safeguards’ to stop abuse.  

According to House of Lords calculations in 2005 a Dutch-type law (such as Lamb is seeking) would mean 13,000 euthanasia deaths a year in Britain, but an Oregon-type law (like Falconer’s) would mean only 650.

Falconer is thereby attempting to position himself as the reasonable middle ground between those who wish to keep euthanasia and assisted suicide illegal and those who want extensive decriminalisation.

We should not be fooled by this ploy and the situation in Oregon is already ringing loud alarm bells.

Members of the House of Lords should note that statistics released just earlier this year (full report here) show that the number of assisted suicide prescriptions and deaths in Oregon, once again, increased in 2012 and has now reached an all-time high. 

There were 59 assisted suicide deaths in Oregon in 2009, 65 in 2010, 71 in 2011 and 77 in 2012; a 30% increase overall in just four years. 

The number of prescriptions for assisted suicide was 95 in 2009, 97 in 2010, 114 in 2011 and 115 in 2012; 115 in 2012; a 21% increase since 2009.

Overall assisted suicides have gone from 16 in 1998 to 77 in 2012, an overall increase of 381% (see chart above).

This pattern of incremental extension is similar to that seen in the Netherlands, Switzerland and Belgium other countries that have changed the law.

A major factor fuelling this increase is suicide contagion - the so-called Werther effect. This is particularly dangerous when assisted suicides are backed by celebrities as they are here and given high media profile as they are frequently by the BBC. 

The Oregon numbers may not seem large but we need to remember that Oregon has a very small population relative to the UK and that they may well be an underestimate as they are based on physicians' self-reporting. 

But for argument's sake let's simply take them at face value. How would they then translate to Britain?

Back in 2006, and based on Oregon’s total of 38 assisted suicide deaths in 2005, the House of Lords calculated that with an Oregon-type law we would have about 650 cases of assisted suicide a year in Britain. 

But as the numbers in Oregon have since doubled to 77 the UK equivalent would now be 1,300. 

We should learn from the Oregon experience and be resisting these moves. 

Any change in the law to allow assisted suicide (a form of euthanasia) would inevitably place pressure on vulnerable people to end their lives so as not to be a burden on others and these pressures would be particularly acutely felt at a time of economic recession when many families are struggling to make ends meet and health budgets are being slashed. Especially when fears about the NHS are actually fuelling support for assisted suicide. The so-called right to die can so easily become the duty to die.

And once legalised there will inevitably be incremental extension as we have seen in Oregon, Switzerland, Belgium and the Netherlands. Legalisation leads to normalisation. New hard cases will brought to bring pressure to widen the existing criteria to allow extension to ‘Gillick competent’ minors, people without mental capacity who ‘would have wanted it’ and those who are ‘suffering unbearably’ but are not terminally ill. 

I have previously blogged about the shroud of secrecy which surrounds assisted suicide practice in Oregon, the worrying trends in neighbouring Washington state, which enacted a similar law more recently and the way the Oregon law steers people toward suicide. 

Also deeply concerning are reports of depressed patients being killed without being treated, doctor shopping, deaths taking place without witnesses present (raising questions about elder abuse) and the fact that 44 of the 77 who died last year (57%) said that they were concerned about being a burden on family, friends and caregivers. 

The lessons are clear. Let’s not go there.

The best system is what we have already – a blanket ban on both assisted suicide and euthanasia which provides a strong deterrent to exploitation and abuse whilst giving discretion to both prosecutors and judges to temper justice with mercy in hard cases.

Under this the number of people going to the Dignitas facility in Switzerland to end their lives remains a trickle of about 15-20 per year.

So let’s keep that system in place and concentrate on providing the best possible care to people who are dying. Let’s major instead on killing pain without killing the patient.

Lamb drops anonymity in UK Nicklinson appeal

The following article is the response by the Care Not Killing Alliance to the involvement of Paul Lamb in the Nicklinson case in the UK. Link to the original article.

Paul Lamb's tragic personal circumstances must not blind us to the deadly consequences of undermining the murder law.

A 57 year-old man, who was almost entirely paralysed in a road accident 23 years ago, is now seeking permission for a doctor to give him a lethal injection to end his life.

Paul Lamb, who up until the lifting of an anonymity order this week has been known only as 'L' (see previous reports here, here and here), has gained permission to join the right-to-die campaign started by Tony Nicklinson, a locked-in syndrome sufferer who died last year after an unsuccessful court challenge.

As a result of his accident, Lamb - a divorced father-of-two - has been left with quadriplegia and has no function in any of his limbs apart from a little movement in his right hand.

He requires 24 hour care but can speak and is able to eat, to operate a computer and telephone using an electronic device and to control, with assistance, an electric wheelchair.

Lamb requires a permanent urinary catheter and has pain which is difficult to control. He now feels there are 'too many negatives', claiming to be 'worn out' and 'genuinely fed up' with his life.

His case will be joined to that of Jane Nicklinson, widow of the late Tony Nicklinson, and will be heard in the Court of Appeal in the week of 13 May.

Tony Nicklinson's case was originally rejected by the Divisional Court in August last year and he died less than a week later, on 22 August 2012.

Nicklinson had argued for his GP, or another doctor, to be able to end his life on the basis that the common law defence of 'necessity' was available to a charge of murder in a case of voluntary active euthanasia provided that the Court had sanctioned the act in advance (see more on this here). He had also appealed to Article 8 of the European Convention (right to private and family life).

The three judges in the case admitted that Nicklinson was in a 'terrible predicament' and described his plight as 'deeply moving and tragic' but unanimously agreed that the current law did not breach his human rights and that it was for Parliament, not the courts, to decide whether it should be changed.`

But Paul Bowen QC, counsel for Lamb, has said that he will be asking for this high court decision to be set aside and for the case to be sent back to a different panel of judges to be reconsidered.

Both Jane Nicklinson and Paul Lamb intend to advance arguments under Article 8 and Lamb will also argue for the right to have a lethal injection on grounds of 'necessity'.

The key point to grasp about this case is that Lamb is arguing not for assisted suicide (help to kill himself) but for euthanasia (giving a doctor the power and authority actively to end his life). He claims that he would be incapable of killing himself even with assistance (although this is in itself questionable given that he appears to be capable of sucking with a straw).

The case therefore threatens to drive a coach and horses through the murder law (rather that the Suicide Act).

It could effectively create a legal precedent for anyone who, according to Tony Nicklinson's words, is suffering from 'a medical condition that causes unbearable suffering', when there are 'no alternative means available by which his suffering may be relieved', who has made a 'voluntary, clear, settled and informed decision' to end his life to be given a lethal injection by a medical doctor 'who is satisfied that his or her duty to respect autonomy and to ease the patient's suffering outweighs his or her duty to preserve life'.

That is actually a very wide category of people indeed, far wider than any category yet suggested by anyone bringing a bill before any British parliament.

It would also be easily amenable to further incremental extension through the courts. What if a person fulfils all these conditions but is not mentally competent? Or chooses not to try 'alternative means' like palliative care? Or is a minor? Or suffers from a mental illness? Or has dementia? Or could a non-doctor do it? Or might someone claim after death that the conditions applied (when the patient and key witness is already dead)? These are the sort of extensions that we are already seeing in countries like Belgium and the Netherlands which have adopted laws far less radical than this.

Is it any wonder that the Ministry of Justice, the Attorney General and the Director of Public Prosecutions are all opposing him?

Paul Lamb is proposing a far-reaching legal change that would remove legal protection from a large number of vulnerable elderly, disabled and sick people. How many of these could then feel pressure, whether real or imagined, to end their lives so as not to be a financial or emotional burden on others? The so called right to die can so easily become the duty to die.

There are also many people who already stand to gain financially or emotionally from the death of particular elderly or disabled family members and they do not need encouragement. This is why the present law is necessary. Through the penalties it holds in reserve, it acts as a powerful disincentive to exploitation and abuse whilst giving some prosecutorial and judicial discretion in hard cases. It provides the best balance and does not need changing.

Furthermore, a time of economic recession, when many families are already under pressure from rising costs and when unemployment and benefit cuts and health budgets are being squeezed, is the very worst time to be considering such a change in the UK.

We need also to take warning from the rapid incremental extension of euthanasia observed in both Belgium and the Netherlands, two European jurisdictions which have legalised it since 2000.

In the Netherlands cases of euthanasia have increased 15-20% every year since 2006 and in Belgium there was an increase of over 4,600% between 2002 and 2011. And there is now pressure to liberalise the law even further.

More than that, as the Ministry of Justice has already argued, Parliament and not the courts is the proper place to be making such serious decisions. But parliamentary measures attempting to legalise assisted suicide have already been rejected three times by British Parliaments since 2006 over concerns about public safety.

They have also been strongly opposed by medical bodies including the BMA and Royal Colleges along with every major disability rights organisation in the UK.

That is precisely why this current campaign is being waged via the courts. Lamb's legal team would like the courts to examine 'the substantive evidence' and make a decision that is actually the proper province of parliament. This is because they believe that the courts provide an easier path to fulfilling their agenda.

It is noteworthy that Dignity in Dying, the former Voluntary Euthanasia Society, is not backing this case because Lamb is not terminally ill and is seeking euthanasia rather than assisted suicide. Even they see this as far too big a step.

Instead Lamb is being supported by the British Humanist Association, which has a far more radical agenda and is intervening on his behalf.

The lifting of Lamb's anonymity order has effectively passed him the campaigning baton previously held by Nicklinson and the launch of the campaign has been timed to have maximal impact leading up to the Court case in May and the launch of Lord Falconer's new assisted dying bill in the same month.

Campaigners also know that giving the campaign a human face will help to gain public support for a change that would otherwise be unthinkable.

There will be very few people who will not feel sympathy for Paul Lamb, but we must not allow ourselves to be swayed by his tragic personal circumstances into welcoming a legal change that would have such dangerous repercussions for so many vulnerable elderly and disabled people.

Despite the media hype, the Court of Appeal should give Lamb's high profile campaign the same short shrift that the Divisional Court gave Tony Nicklinson.