The courts should judge applications for assisted suicide, sparing the doctor-patient relationship

A patient’s right to assisted suicide should be legislated for in parliament, officiated by the courts, and should not impinge on the doctor-patient relationship, says Zoe Fritz

The key to the debate on assisted suicide is to differentiate between legal rights and their implementation. Arguments about whether patients should have the right to die at the time of their choosing have been conflated with questions about how this might be provided and how it might affect the doctor-patient relationship (1-3); whether doctors are equipped to determine whether a patient is under undue influence from family members; (4) and whether the option of assisted suicide would diminish the standard of palliative care. (5)

Most of the public favours legalisation of assisted suicide. (6) Previous surveys have shown that many doctors do not want to be involved in assisting suicide. (7,8)

Patients’ right to assisted suicide

Separating patients’ right to an assisted suicide from physicians’ role in mediating or facilitating this provides a way to respect individuals’ autonomy in having more control over when and how they die while not interfering with their relationship with their physicians.

Rather than the court reviewing the doctors’ assessment of a patient’s situation, as suggested in the amended Marris-Falconer bill that was rejected by the UK’s parliament in 2015 the court should be the arbiter of patients’ requests for an assisted suicide. (9)

In most countries where assisted suicide is legal, consensus has been reached that specific conditions must be met.(10) Patients must:

  1. be over 18 and capable of making decisions about their health;
  2. have made a settled, voluntary request for assistance in dying that was not made as a result of external pressure; and after having been informed of the means that are available to relieve their suffering, including palliative care;
  3. have a grievous and irremediable medical condition (some countries specify the expected life-expectancy).

Judges are experts in hearing and assessing evidence and are able to call upon those who can provide it. The court would be charged with ensuring that applicants requesting an assisted suicide understood their condition and their prognosis; that all treatment options, including good palliative care, had been offered and understood; that no undue influence had been exerted; and that the applicant was of a settled mind.

Doctors provide evidence

The court could hear from not only the applicant but also family members, friends or  carers, psychiatrists, and physicians. The physician would not be acting “for” or “against” assisted suicide: he or she would  be providing evidence only on the diagnosis, prognosis, and possible treatment options, allowing the court to process this, along with the other evidence. In Canada, which legalised medical aid in dying in 2016, the courts discharged this function for an interim period, while the bill was crafted, showing this approach to be practicable and demonstrating how it should be done.

Applications could be received both from patients who are terminally ill, such as Noel Conway,(2) and from patients who want an assisted suicide because of other irremediable conditions, such as Tony Nicklinson.(12) The law would be applied in each case to ensure that eligibility criteria were met and that vulnerable individuals were protected.

Licensed practitioners

Once the court agreed that the patient was eligible, the drugs would be provided for the patient to take at a time of their choosing. Licensed practitioners could provide a service that could include physical, emotional, and practical support, including the delivery of drugs.

Having such practitioners would not preclude doctors from being involved in their patients’ end of life, but it would prevent dividing doctors into those who are willing to prescribe life ending drugs and those who are not—and the effects of having this publicly known. An audit trail would exist from a patient’s application through to judgment and how and when the drugs were (or were not) used. In Oregon, where assisted dying has been legal since 1997, 36% of such drugs prescribed are never used: patients report that having the option of an assisted suicide is sometimes all that is needed for peace of mind, even if that option is not acted upon. (13)

As doctors, we wish to care for patients in all circumstances. As a society, we need to respect patients’ right to have more control over their death. Our courts are equipped to make sure that this can be done safely: we should ask our government to legislate and our courts to officiate.

For decades, this debate has centred around the doctor-patient relationship. Approaching it from a different angle offers  the prospect of resolving what is a complex and emotive issue.

Definitions under dispute

Proponents and opponents of assisted dying do not all agree on the terminology used to describe the process.

Assisted dying—Proponents of the Assisted Dying Bill 2015 in England and Wales argue that this term best describes prescribing life ending drugs for terminally ill, mentally competent adults to administer themselves after meeting strict legal safeguards. Assisted dying, as defined like this, is legal and regulated in the US states of Oregon, Vermont, Washington, Montana, Hawaii, California, and Colorado, and in Washington, DC. In 2017, similar legislation was passed in Victoria, Australia.

Assisted suicide—This term is often intended to describe giving assistance to die to people with long term progressive conditions and other people who are not dying, in addition to patients with a terminal illness. The drugs are self administered. Some opponents of assisted dying do not accept that it is different from assisted suicide. Assisted suicide, as defined like this, is permitted in Switzerland.

Voluntary euthanasia—This term describes a doctor directly administering life ending drugs to a patient who has given consent. Voluntary euthanasia is permitted in the Netherlands, Belgium, and Luxembourg. In 2016, Canada legalised both voluntary euthanasia and assisted dying for people whose death is “reasonably foreseeable,” in what it calls “medical assistance in dying” (MAID).

Read more of our coverage of the assisted dying debate.

Zoe FritzWellcome Fellow in Society and Ethics at the University of Cambridge, and Consultant Physician in Acute medicine at Addenbrooke’s Hospital, Cambridge

Competing interests: I am a practicing clinician. I have no financial conflict of interest.

Provenance and peer review:  Commissioned; externally peer reviewed.

Zoe Fritz is supported by the Wellcome trust Grant reference number: 208213/Z/17/Z