One mother helps her seriously ill daughter to die by injecting an overdose of morphine at her daughter’s request, and receives a conditional discharge; another injects her comatose son with heroin and is sentenced to serve a minimum of nine years in prison for his murder.
At first glance, this is an unflattering snapshot of English criminal law, revealing an unpredictable and unfair system. But, on closer inspection, there may be grounds for treating these cases differently - although there is a strong case for re-examining the laws.
Homicide law encompasses various crimes, so prosecutors can choose charges to suit the circumstances. Yet one thing is clear: mercy killing is still killing. Equally, murder is murder, irrespective of the wishes of the person who is killed; only if the accused acted with that person might the charge be reduced, albeit to one of assisted suicide, which is still a serious crime.
There is mounting pressure to change these rules, specifically to allow some form of assisted dying on request. Parliament has long resisted these calls, most recently rejecting Lord Joffe’s attempts to legalise physician assisted suicide.
‘One can see why the Royal College of Nursing adopted a neutral stance on assisted suicide, so as not to stifle debate among nurses. Such a debate is essential’
Such proposals tend to rest on two ethical concepts, neither of which is free from difficulty.
The first concept will be familiar to nurses as a core feature of much of their daily work: respect the autonomy of patients, and therefore their right to govern their own lives. This seems central to Mrs Gilderdale’s case: she admitted helping her daughter Lynn, who had ME, to commit suicide, since this was what her daughter desperately wanted.
But, if we think a case like this offers good reason for changing the law, how do we ensure that the rules will respect - and protect - everyone equally? And how far should this obligation to respect autonomy extend?
The Netherlands has long accommodated assisted suicide and voluntary euthanasia, subject to certain conditions being fulfilled, including that the patient be suffering unbearably without prospect of relief. The Dutch have recently considered whether these rules should cover helping people to die who are “tired of life”, in other words, people who need not have any medical condition, but for whom the request itself does the moral work. Is this what respect for autonomy should mean?
The obvious response might be to require a suitably grave medical condition before allowing assistance in dying - Lord Joffe, for example, insisted upon a “terminal” diagnosis. But why place such a limit?
The second concept concerns our obligation to eradicate suffering, and we can agree that it is not just terminal illness that can affect quality of life. Still, when can we say that the quality of life is sufficiently poor that it would be most merciful to bring that life to an end?
Student nurse Frances Inglis succeeded in her second attempt to - as she saw it - free her son from enduring existence with severe brain damage; however, neither the jury nor the judge seemed willing to soften the law to reflect that, which has prompted her to appeal.
This resistance might stem from a rather different assessment of the ethics, which emphasises the need to protect all lives, regardless of inability or disability. This idea will chime with nurses, for whom care for the vulnerable is a central concern. But, again, why should we let this approach dictate the rules for everyone? Just how persuasive is an appeal to the “sanctity” of life, in a pluralistic society?
Given how finely balanced the competing arguments are, one can see why the Royal College of Nursing adopted a neutral stance on assisted suicide, so as not to stifle debate among nurses. Such a debate is essential, and one in which we should all participate.
I detect good moral arguments on both sides - which lead me to support a compromise position. This involves seeing mercy killing as a distinct legal category - still a crime, but ranked lower in the homicide hierarchy than murder.
Such a move would bring much needed clarity, honesty and certainty. There are traces of this sort of approach in the latest guidance on assisted suicide, which sets out factors for and against prosecution. I believe that similar criteria can be formulated for mercy killing or euthanasia.
It would be wise to monitor how the latest guidance is applied before taking the proposed step. It is a step that requires further consultation, not least with nurses and other health professionals. Among the questions to ask are: when should any new offence be brought in, and what should the sentence be? What significance, if any, is there to ending a life on request? Should there be any distinction between whether it is health professionals or family members and other loved ones who end lives on compassionate grounds?
These are difficult questions, to which we might expect conflicting answers. I think it is possible to formulate answers that will steer an appropriate course between prohibition and permission.
At a minimum, mothers like Mrs Inglis and Mrs Gilderdale deserve better than the current legal lottery.
Richard Huxtable is a senior lecturer and the deputy director of the Centre for Ethics in Medicine, University of Bristol