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Published online by Cambridge University Press: 10 June 2021
This article engages with the legal regulation of end-of-existence decisionmaking for novel beings, specifically assisted nonexistence for such entities. The author explains the concept of a legal model for assisted death by reference to the substantive features of legal regimes in three jurisdictions in which assisted suicide or euthanasia is lawful. He considers how these models might fit novel beings who may require or prefer assistance to end their own existence by reference to the constituent features—abstract legal ingredients—that models for assisted death share. The author argues that extant models may block some novel beings’ access to end-of-existence assistance or fail to track what matters to them. He then examines the merits of adopting a universal model for assisted nonexistence, that is, a legal framework whose substantive features capture the end-of-existence concerns of both human and novel beings. Consideration of a unified legal framework may illuminate the discussion of assisted nonexistence for humans and novel beings. However, the paper proposes that whereas novel beings may have similar interests to humans, they may be relevantly different also. The prima facie case for adopting a one regime to rule us all approach to assisted nonexistence may be defeated by reasons for divergent regulation.
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16. When one provides euthanasia or supplies medication that is subsequently used to fatal effect, one assists an individual to die, i.e., one assists death, not dying.
17. See note 1, Lawrence, Brazier 2018, at 318 et seq.
18. See note 1, Lawrence, Brazier 2018.
19. Consider the case of companies, adolescents, noncitizens, etc.
20. For example, there exists disagreement whether the legal regulation of assisted suicide in England and Wales, that is, whether the universal statutory prohibition on encouraging or assisting suicide contained in the Suicide Act 1961, s 2, subject to the requirement of prosecutorial consent to prosecution contained in s 2(4) of the Act (supported by the Director of Public Prosecutions, Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide (2010, amended 2014); available at https://www.cps.gov.uk/sites/default/files/documents/legal_guidance/assisted-suicide-policy.pdf (last accessed 15 Dec 2020), constitutes a permissive legal regime. Cf., Lewis P. “[t]he DPP has… implicitly describe[d] (albeit imperfectly through the use of factors for and against prosecution) a class of assisted suicides which are permissible.” Informal legal change on assisted suicide: The policy for prosecutors. Legal Studies 2011;31(1):119–34, at 133; Montgomery J. “the Director has skilfully negotiated a path that clarifies his prosecution policy without stepping into legislative territory.” Guarding the gates of St Peter: Life, death and law making. Legal Studies 2011;31(4):644–66, at 664–5.
21. Death with Dignity Act (Oregon); ORS §127.800–127.995.
22. Wet toetsing levensbeëindiging op verzoek en hulp bij zelfdoding (Termination of Life on Request and Assisted Suicide [Review Procedures] Act 2002) (Euthanasia Act [Netherlands] 2002). English language translation: House of Lords, Select Committee on the Assisted Dying for the Terminally Ill Bill, Volume II: Evidence. HL Paper 86-II; 2005:396; available at http://www.publications.parliament.uk/pa/ld200405/ldselect/ldasdy/86/86ii.pdf (last accessed 15 Dec 2020).
23. Code pénal suisse du 21 décembre 1937 [Swiss penal code of December 21, 1937], art 115 partially criminalises suicide assistance. We shall see that the full legal picture is more complex: see Black, I. Existential suffering and the extent of the right to physician-assisted suicide in Switzerland: Gross v. Switzerland [2013] ECHR 67810/10. Medical Law Review 2014;22(1):109–18.CrossRefGoogle Scholar
24. The Oregonian and Dutch models are also important, because they have been transferred (more or less) into other jurisdictions. Regarding Oregon, see Death with Dignity Act (Washington); RCW 70.245.010; Patient Choice and Control at the End of Life Act (Vermont); End of Life Option Act (California); End of Life Options Act (Colorado); Death with Dignity Act (District of Columbia); Our Care, Our Choices Act (Hawaii); and Aid in Dying for the Terminally Ill Act (New Jersey). The Oregonian regime also provided the basis for recent attempts to legalize assisted suicide in England and Wales and Scotland, respectively: Assisted Dying (No 2) Bill 2015; Assisted Suicide (Scotland) Bill 2013. Regarding the Netherlands, see Loi relative à l’euthanasie du 28 mai 2002 [Law on euthanasia of May 28, 2002] (Euthanasia Law (Belgium) 2002) and Loi du 16 mars 2009 sur l’euthanasie et l’assistance au suicide [Law of March 16, 2009 on euthanasia and assisted suicide] (Euthanasia Law (Luxembourg) 2009). The influence of Dutch regime is arguably visible in both the Act Respecting End-of-Life Care (Québec) and Bill C-14 (medical assistance in dying) (Canada).
25. Penney Lewis and I employ the idea of features or legal ingredients in The effectiveness of legal safeguards in jurisdictions that allow assisted dying, Briefing Paper for the Commission on Assisted Dying. Demos (London); 2012; available at http://philpapers.org/rec/LEWTEO-8 (last accessed 15 Dec 2020). The underlying prohibition feature is new, and I reframe what we called “identity of the assistor” as institutionalisation.
26. Of course, individual provisions may contain both substantive and procedural elements, e.g., ORS 127.830 §3.04 requires that a person take an “informed decision,” which is defined in ORS 127.800 §1.01.(7) as a “decision… based on an appreciation of the relevant facts and after being fully informed by the attending physician of… [relevant matters pursuant to ORS 127.816 §3.01.].”
27. See, e.g., ORS 127.840 §3.06.
28. See Lewis, P, Black, I. Reporting and scrutiny of reported cases in four jurisdictions where assisted dying is lawful: A review of the evidence in the Netherlands, Belgium, Oregon, and Switzerland. King’s Law Journal 2013;4:MLI 221–39.Google Scholar
29. ORS 163.193.
30. ORS 127.800 §1.01.(1).
31. ORS 127.810 §2.02.(1). “Attending physician” means “the physician who has primary responsibility for the care of the patient and treatment of the patient’s terminal disease”: ORS 127.800 §1.01.(2). ORS 127.810 §2.02.(1). Capacity is defined as “the ability to make and communicate healthcare decisions to healthcare providers”: ORS 127.800 §1.01.(3). Voluntariness is specified as a requirement but not defined in the Act, although 127.810 §2.02 requires additionally that witnesses attest to the absence of coercion. An informed decision requires that the requestor bases their decision on an appreciation of “relevant facts,” including diagnosis, prognosis, potential risks, and probable consequences associated with taking lethal medication, as well as “feasible alternatives” to suicide: ORS 127.800 §1.01.(7).
32. ORS 127.800 §1.01.(12).
33. Euthanasia Act (Netherlands) 2002, at s 20.
34. “[T]he physician who, according to the notification, has terminated life on request or has provided assistance with suicide”: see note 33, Euthanasia Act (Netherlands) 2002, at s 1(c).
35. Making a “carefully considered” request requires the possession of decisionmaking capacity: Lewis, P, Black, I. Adherence to the request criterion in jurisdictions where assisted dying is lawful? A review of the criteria and evidence in the Netherlands, Belgium, Oregon, and Switzerland. Journal of Law, Medicine & Ethics 2013;41(4), at 888.CrossRefGoogle ScholarPubMed
36. See note 33, Euthanasia Act (Netherlands) 2002, at s 2(1).
37. Chabot NJ 1994, no 656 (NL Supreme Court), i.e., assistance is limited to neither terminal illness nor “physical” conditions.
38. Brongersma NJ 2003, no 167 (NL Supreme Court).
39. See note 33, Euthanasia Act (Netherlands) 2002, at s 2(3).
40. See note 33, Euthanasia Act (Netherlands) 2002, at s 2(4).
41. Bosshard, G. Switzerland. In: Griffiths, J, Weyers, H, Adams, M, eds. Euthanasia and Law in Europe. Hart (Oxford); 2008:474.Google Scholar
42. See note 23, Black 2014, at 110. The relevant statutes are: Loi fédérale sur les stupéfiants et les substances psychotropes du 3 octobre 1951 [Federal law on narcotics and psychotropic substances of October 3, 1951] (LStup); and Loi fédérale sur les médicaments et les dispositifs médicaux du 15 décembre 2000 [Federal law on medicines and medical devices of December 15, 2000] (LPTh).
43. LStup, at art 11(1); LPTh, at art 26.
44. LStup, at art 20(1)(e); LPTh, at art 86(1)(a).
45. See note 41, Bosshard 2008, at 473.
46. Haas Entscheid 2A48/2006 (3 November 2006) (BGer) [6.3.2]. English language translated extracts: Haas v. Switzerland (2011) 53 EHRR 33 (ECtHR) [16]. See Black, I. Suicide assistance for mentally disordered individuals in Switzerland and the state’s positive obligation to facilitate dignified suicide. Medical Law Review 2012;20(1):157–66.CrossRefGoogle ScholarPubMed
47. See note 46, Haas 2006, at [6.3.4.]–[6.3.5.2.].
48. Gross Entscheid 2C_9/2010 (12 April 2010) (BGer). English language translated extracts: Gross v. Switzerland (2014) 58 EHRR 7 (ECtHR) [32]–[33].
49. See note 48, Gross v. Switzerland 2014.
50. Swiss Academy of Medical Sciences. Care of patients in the end of life (2004, revised 2013); available at https://www.samw.ch/dam/jcr:de64e102-1495-4c48-9fbd-1c7d4d45932f/guidelines_sams_end_of_life_2012.pdf (last accessed 15 Dec 2020). The new SAMS guidance replaces the terminal illness requirement with a condition that “[t]he symptoms of disease and/or functional impairments are a source of intolerable suffering for the patient [from their own perspective],” which appears inclusive of nonfatal conditions and possibly some cases of existential suffering: Medical-ethical guidelines: Management of death and dying 2018:23; available at https://www.samw.ch/dam/jcr:25f44f69-a679-45a0-9b34-5926b848924c/guidelines_sams_dying_and_death.pdf (last accessed 15 Dec 2020). I have added the text in square brackets to clarify the English language version, based on the French language guidance, which reads: «Les symptômes de la maladie et/ou les limitations fonctionnelles du patient lui causent une souffrance qu’il juge insupportable» (emphasis added). The shift to this condition has proved controversial, with the Swiss Medical Association (FMH), for the first time, refusing to adopt the guidance into its own Code of Ethics, on grounds that the term (subjectively appreciated) intolerable suffering was an indeterminate legal notion that gave rise to uncertainty for physicians: “La FMH ne reprend pas les directives de l’ASSM «Attitude face à la fin de vie et à la mort» dans son Code de déontologie” 2018; available at https://www.fmh.ch/files/pdf23/communique_de_presse_la_chambre_medicale_est_favorable_a_une_revision_du_tarif_en_partenariat.pdf (last accessed 15 Dec 2020). In consequence, the 2004 SAMS guidance remains in the FMH Code of Ethics.
51. See note 48, Gross v. Switzerland 2014, at [65]–[67].
52. See note 48, Gross v. Switzerland 2014, at [67].
53. See note 48, Gross v. Switzerland 2014, at [66].
54. The Grand Chamber declared the case inadmissible for abuse of rights: Gross v. Switzerland [2015] 60 EHRR 18 (ECtHR). See Black, I. A postscript to Gross v. Switzerland. Medical Law Review 2014;22(4):656.Google Scholar
55. I take it that the fact that physician assisted suicide has been provided without sanction to individuals who are neither terminally ill nor mentally ill is not determinative of its legality: See note 23, Black 2014, at 110–11.
56. I shall not discuss the autonomous decision criterion, since I doubt that—unlike the others—this criterion poses any problems for novel beings.
57. See note 41, Bosshard 2008, at 472 for an overview of the history of organized assisted suicide in Switzerland.
58. The thought here is that some novel beings may start off with a predetermined set of features but possess the ability to develop their own subjectivity over time.
59. Science Museum. “Euthanasia machine, Australia, 1995–1996” http://www.sciencemuseum.org.uk/broughttolife/objects/display.aspx?id.
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61. Exit International. “The Sarco” 2018; available at https://exitinternational.net/sarco/ (last accessed 15 Dec 2020).
62. For example, arising from the need to ingest lethal medication, or voluntarily stopping eating and drinking.
63. In Oregon, there have been a very small number of cases (n = 8) in which individuals have regained consciousness after an attempt to utilize prescribed lethal medication: Oregon Public Health Division. Oregon Death with Dignity Act: 2018 Data Summary 2019, Table 2; available at https://www.oregon.gov/oha/ph/providerpartnerresources/evaluationresearch/deathwithdignityact/Documents/year21.pdf ( last accessed 15 Dec 2020).
64. A total of 2,217 prescriptions were written for individuals under the Death with Dignity Act (Oregon) between 1997 and 2018; 1,459 were used: Oregon Public Health Division (see note 63), at 5, Table 2.
65. I appreciate that some terminally ill individuals would suffer gravely without the option of physician assisted suicide, i.e., the provision of a prescription for lethal medication itself provides succour.
66. Of course, I am not suggesting that the suffering of terminally ill individuals is never sufficient to qualify for assisted nonexistence.
67. R (oao Nicklinson and another) v. Ministry of Justice; R (oao AM) v. DPP [2014] UKSC 38 [122].
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69. I take it that if such social factors are not intractable in principle or in some reasonable practical sense, this grounds a general reason against assisted death, for both humans and novel beings.
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72. See note 70, Salem 1999, at 35.
73. See note 70, Salem 1999, at 35.
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75. See Black I. Refusing life-prolonging medical treatment and the ECHR. Oxford Journal of Legal Studies 2018;38(2):299–327, at 316–8 for discussion in the context of refusal of life-prolonging medical treatment.
76. Cf., Huxtable, R. Whatever you want? Beyond the patient in medical law. Health Care Analysis 2008;16(3):288–301;CrossRefGoogle ScholarPubMed see note 14, Coggon 2010, at 543–4.
77. There are pragmatic arguments for medicalisation too. As Ost (see note 74), at 539, no 196 notes: “it is arguably better to advocate the model that is more likely to be acceptable to the legislature and public… advocates of legal reform should unite their claims with widely accepted cultural values, the process of ‘frame alignment.’”
78. Cassell EJ. The Nature of Suffering and the Goals of Medicine. 2nd ed. OUP (New York); 2004:61.
79. I am not suggesting that physicians necessarily possess these skills. Indeed, Cassell’s critique is that modern medicine has lost its connection to suffering: see note 78, Cassell 2004, at 61.
80. Coggon (see note 14), 543–4.
81. See Dworkin R. Life’s Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom. 1st ed. Knopf (New York); 1993.
82. See Brownsword, R, Lewis, P, Richardson, G. Prospective legal immunity and assistance with dying: Submission to the Commission on Assisted Dying. King’s Law Journal 2012;23(2):KLJ 181–93;CrossRefGoogle Scholar Ost (see note 74), at 537.
83. My claim here is not that there would be no ex post review of assisted nonexistence, but that such review may be lighter touch, e.g., if there is a “buffer” between assistors and the institutions of criminal or administrative justice: see note 28, Lewis, Black, at 238.
84. It is perhaps telling that in Switzerland, almost all assisted suicides involve physicians and a right-to-die association: van der Heide, A, Deliens, L, Faisst, K, Nilstun, T, Norup, M, Paci, E, et al. End-of-life decision-making in six European countries: Descriptive study. Lancet 2003;362(9381):345–50, at 347. Of course, the persuasiveness of this claim depends on the particularities of ending the existence of classes of novel beings.CrossRefGoogle ScholarPubMed
85. R (oao Purdy) v. Director of Public Prosecutions [2009] UKHL 45 [68]. I think this last claim has less force for entities who are unable to perform suicide in some way.
