The introduction of Kim Leadbeater’s Personal Member’s Invoice which can, if enacted, legalise assisted suicide for ‘Terminally Sick Adults’ in England and Wales has, unsurprisingly, drawn vital commentary from many quarters, together with some authorized lecturers and practitioners. That is although, as but, Leadbeater’s Invoice has not been printed.
Debates on assisted dying are at all times extremely contested, with folks legitimately holding numerous factors of view. It’s, thus, necessary to separate out completely different points of the talk, which can embrace: (i) the significance of the correct to life, in addition to beliefs in respect of the sanctity of life; (ii) issues concerning the place of docs, in addition to conscientious objection; (iii) issues as as to if the decriminalisation and regulation of assisted dying will compromise the supply of high quality palliative care; (iv) whether or not the laws will broaden to permit those that aren’t terminally sick to entry help and/or prolong to youngsters (slippery slope arguments); and (v) the method by which the laws is being enacted.
For the aim of this submit, I’ll deal with the slippery slope argument, because it has been referenced extensively in response to Leadbeater’s Invoice. Slippery slope arguments are ubiquitous in assisted dying debates. Put crudely, they posit that legalisation of assisted dying must be opposed as a result of it’s not possible to incorporate enough safeguards towards future growth of any scheme. Slippery slope arguments are rhetorical units underneath which a number of completely different views search refuge. Within the context of debates concerning the legalisation of assisted dying, this may embrace each those that don’t object to the supply of assisted dying (whether or not that’s assisted suicide solely or assisted suicide and voluntary lively euthanasia) for terminally sick adults however are involved concerning the resilience of safeguards towards growth, in addition to those that basically object to any type of assisted dying and thus wouldn’t help its laws in any circumstances. For these which are involved about growth, specializing in the slippery slope argument is smart and, for causes that I’ll clarify beneath, it could be attainable to assuage their issues. For these within the latter camp, who oppose laws in all circumstances, positioning themselves underneath the guise of the slippery slope argument is perilous, as a result of if that alleged threat will be assuaged, their acknowledged authorized objection disappears whereas their underlying opposition persists.
Essentially the most detailed evaluation of the slippery slope argument within the context of Leadbeater’s Invoice has been offered by Philip Murray, who authored a submit on the Invoice on this weblog final week. Murray proceeds on the belief that Leadbeater’s Invoice will replicate Lord Falconer’s Assisted Dying for the Terminally Sick Adults Invoice [HL]. He opposes the enactment of Leadbeater’s Invoice as a result of he contends that there’s a actual risk of home courts and/or the European Court docket of Human Rights (ECtHR) discovering that an assisted dying scheme that’s restricted to the supply of assisted suicide to terminally sick adults with a particular life expectancy is discriminatory, in violation of Article 8 taken along with Article 14 of the European Conference on Human Rights (ECHR). If such an argument had been to search out success earlier than the home and/or Strasbourg courts this might, Murray suggests, seemingly outcome within the Authorities (by advantage of s 10 of the Human Rights Act 1998) or Parliament amending the laws to incorporate people who aren’t terminally sick. Such an final result, in response to Murray and others who depend on the slippery slope argument to oppose legalisation of assisted dying, can be unacceptable and militates towards the enactment of the Invoice within the first place.
The normative limitations of the slippery slope argument as a rhetorical system have been thought of intimately elsewhere (e.g. right here and right here), as have the deserves of its utility within the assisted dying context specifically (e.g. right here and right here). Suffice it to say, it’s not uncontentious. The operate of this submit, nonetheless, is to not have interaction with these well-trodden assessments of the slippery slope argument (I’ve set out elsewhere why the information doesn’t bear out the slippery slope argument in respect of the legalisation of assisted dying). Fairly, I want to reply particularly to a number of of the contentions in Murray’s submit, notably because it depends on earlier work of mine to oppose Leadbeater’s Invoice.
Article 14 ECHR prohibits discrimination between people in ‘analogous, or relevantly related, conditions’ (see, for example, Carson v the UK (2010) 51 EHRR 369 at [61] and R (SG and Ors) v Secretary of State for Work and Pensions [2015] UKSC 16 at [8]). Murray’s submit assumes that these whom he contends would, by advantage of the slippery slope, find yourself being permitted to entry help in dying (i.e. these with a ‘bodily incapacity, acute psychological sickness, and so on.’) are in ‘analogous, or relevantly related, conditions’ to terminally sick people who’ve six months or much less to stay, such that allowing such entry to the latter however not the previous may have interaction Article 14. However that’s certainly not a foregone conclusion. With out first establishing the mandatory correspondence between the teams of people being in contrast, the priority Murray raises that ‘[p]ermitting assisted suicide for some teams however not others is subsequently prone to deprive the UK of its principal justifications for a ban on assisted suicide’ doesn’t materialise.
In my earlier work, I’ve urged that differentiating between people on the premise of struggling may represent discrimination. Particularly, legislative schemes which solely prolong to people who’re struggling intolerably and who’ve a terminal sickness have the impact that people who’re arguably in analogous or relevantly related conditions (i.e. those that are struggling intolerably) are handled in another way on the premise of their sickness (i.e. terminal or not), and that constitutes discrimination for the needs of Article 14. Due to my wider conclusion that bans on assisted dying aren’t justified underneath Article 8(2) (since it’s attainable to create a system of assisted dying that protects weak people whereas additionally securing the rights of these eager to be assisted to die), I argue that such differential remedy is with no cheap and goal justification and, subsequently, violates Article 14 taken along with Article 8. Murray equally notes that ‘[t]he UK would want the clearest justification for terminally sick adults with the ability to finish their lives however not these experiencing equal or higher struggling due to bodily incapacity, acute psychological sickness, and so on’ (emphasis added). However – critically to this argument – Falconer’s Invoice (and, presumably, Leadbeater’s) doesn’t embrace a struggling requirement. Whereas different jurisdictions have launched assisted dying on the premise of each a situation requirement and a struggling requirement (see, for example, Canada and Victoria (Australia)), in distinction, Falconer’s Invoice requires solely that the particular person has been recognized with ‘an inevitably progressive situation which can’t be reversed by remedy’ and that ‘as a consequence of that terminal sickness, within reason anticipated to die inside six months’. On that foundation, not extending assisted dying to these with no terminal sickness is to not differentiate between analogous or relevantly related instances of struggling and the slippery slope argument fails on the first hurdle. It bears noting that Falconer’s Invoice – insofar as it’s restricted to people with a terminal sickness and a life expectancy of six months or much less – displays the place within the US states/district that let assisted suicide. I’m unaware of any profitable authorized problem on the premise of discrimination to the situation necessities in these jurisdictions.
Nevertheless, even when we had been to imagine for the needs of Article 14 that there’s a correspondence between terminally sick people with six months or much less to stay and people whose struggling emanates from a psychological sickness or non-terminal bodily incapacity, there’s case legislation from the ECtHR to counsel that their differential remedy wouldn’t essentially run afoul of the non-discrimination provision. Whereas Murray is appropriate that Strasbourg has in a roundabout way thought of whether or not limiting assisted dying to adults with terminal diseases who’ve 6 months or much less to stay is discriminatory underneath Article 14, the ECtHR’s observations within the very latest case of Daniel Karsai v Hungary are illuminating. Particularly, the ECtHR in that case famous that there have been goal and cheap justifications for differentiating between, on the one hand, people receiving life-sustaining remedy who had been, underneath Hungarian legislation, permitted to refuse it (thus bringing about their demise), and, on the opposite, terminally sick people who weren’t receiving such remedy and who, due to the ban on assisted suicide in Hungary, couldn’t be assisted to die. Particularly, the ECtHR thought of that (at [150]):
any system of [physician-assisted dying] – even one restricted to terminally sick sufferers with refractory signs … – would require the event of a strong regulatory framework, able to being successfully and safely utilized in follow, and willingness to cooperate on the a part of the medical career. It notes on this connection that the safeguards that are already in place with respect to [refusal and withdrawal of treatment] in Hungary and another contracting States would possibly admittedly be of some relevance… . Nevertheless, it can’t be ignored that the supply of [physician-assisted dying] in respect of sufferers who aren’t depending on life help could give rise to additional challenges and a threat of abuse. (Emphasis added)
The Court docket seems to simply accept {that a} system of assisted dying may legitimately be ‘restricted to people who’re terminally sick with refractory signs’. Additional, the ECtHR recognises that specific dangers of abuse could come up with respect to particular people. Thus, opposite to Murray’s declare that ‘there are vital questions as as to if [legislation limiting assisted dying to individuals with a terminal illness with six months or less to live] could possibly be justified on Article 14 grounds’, the ECtHR seems keen to simply accept State justifications for such differential remedy. Certainly, the Court docket went on to state in Karsai that ‘[e]nsuring the continued validity of the request will be notably tough within the case of medical circumstances, akin to ALS [a terminal neurodegenerative condition], the place sufferers would possibly finally lose the flexibility to speak’ (at [151]). This additional means that the ECtHR could also be receptive to assisted dying regimes that differentiate between circumstances.
It’s certainly not a on condition that, ought to assisted suicide be legalised in England and Wales and restricted to the terminally sick with a life expectancy of six months or much less, a case underneath Article 14 difficult the failure to increase the scheme to others would succeed. Definitely, there’s simply as sturdy a chance that the ECtHR would, having regard to the ‘appreciable margin of appreciation’ States have relating to regulating end-of-life practices akin to assisted dying, decide that even when there’s differential remedy of people in analogous or relevantly related conditions, that distinction has an goal and cheap justification. Certainly, because the ECtHR noticed in Karsai, States ‘have to be granted a substantial margin of appreciation’ which extends ‘each to their resolution to intervene on this space and, as soon as they’ve intervened, to the detailed guidelines laid down in an effort to obtain a steadiness between competing pursuits’ (at [144], emphasis added). In such circumstances, it appears even much less seemingly that the home courts would discover a violation of Article 8, taken along with Article 14, particularly following the overturning of Re G [2008] UKHL 38 in R (Elan-Cane) v Secretary of State for the Residence Division [2021] UKSC 56.
In his submit, Murray states that ‘[t]he slippery slope will not be a fiction, invented by scaremongering opponents of assisted suicide. It’s a actual risk baked into the current legislation. And people searching for a change within the legislation have to acknowledge this and deal with these arguments head-on.’ As I’ve indicated, the slippery slope might not be the ‘actual risk baked into [Falconer’s/Leadbeater’s] legislation’ that Murray contends. In any occasion, it’s also necessary that opponents of the legalisation of assisted dying ‘acknowledge … and deal with’ the arguments that present bans on assisted suicide are incompatible with the rights of these people searching for lawful help. Absent from Murray’s submit – and the letter he references in it – is any acknowledgement of the lived realities of these people who’re precluded from accessing help in dying due to part 2 of the Suicide Act 1961. There isn’t any recognition of the truth that people are compelled to suicide prematurely due to the ban earlier than they lose bodily capability to take action unaided (such a actuality was acknowledged by Lord Neuberger in R (Nicklinson) v Ministry of Justice 2014] UKSC 38 at [96]). To that finish, as I’ve argued elsewhere, the ban on assisted dying is itself a violation of the correct to life in Article 2 ECHR. The talk surrounding assisted dying will not be merely one in all autonomy on the one hand and sanctity of life on the opposite, with the alleged slippery slope decisively foreclosing any additional consideration of the decriminalisation and regulation of assisted dying. Fairly, there are competing issues concerning the correct to life on either side of the size. Opponents of Falconer’s Invoice (and, presumably, Leadbeater’s) should additionally ‘acknowledge … and deal with’ that actuality.
I’m extremely grateful to Dr Kirsty Hughes and the Editors of the UKCLA Weblog for his or her very useful feedback on my earlier drafts. Any errors are my very own.
Dr Stevie Martin
(Instructed quotation: S. Martin, ‘The Decriminalisation and Regulation of Assisted Suicide in England and Wales: Acknowledging and Addressing the Slippery Slope Argument’, U.Ok. Const. L. Weblog (fifth November 2024) (out there at https://ukconstitutionallaw.org/))
