Autonomy, Consent and the Criminalisation of Assisted Dying

Abstract

Over a decade after Callahan wrote that '[e]uthanasia and ... assisted suicide are hardly new subjects on the human agenda', they continue to provoke intense social, political and legal debate. In aspects, the arguments have been seen as almost timeless; Huxtable wrote in 2007 that 'the principal claims and main areas of contention have changed little in recent years'.Although this undoubtedly still pertains in relation to ideas underpinning the often divisive and entrenched views of those who contend the legitimacy of such practices, recent developments have seen some movement in the response of the criminal justice system to assisted dying. The legal changes considered in this article have come at a time when social acceptance of assisted dying is increasing, and some policy moves indicate that the justice system is willing to reflect this. Persuasive arguments around personal autonomy have increased the focus on practices such as assisted suicide, and the contentious role of the Dignitas clinic in Zurich. However, this is far from a universal picture; the legislature remains in stasis on the issue, with efforts from parliamentarians failing to gain sufficient support, and the appellate courts reluctant to make substantive changes in order fully to accommodate practices such as mercy killing. The legal response is thus piecemeal, incoherent, and often incongruent with the arguments that take place about the subject. Shorn of legislative guidance, and with the courts largely unwilling to react in the face of such inaction, the response of the criminal law is sclerotic.