On October 16, 2021, David Peace, a terminally ill patient, claimed that the English legislation had ‘failed’ him. Diagnosed in 2019 with a disease affecting his motor skills, this Londoner travelled to Switzerland to benefit from a dignified end to his life without fearing “intolerable” pain. English laws do not allow people near death to resort to assisted suicide. In France, assisted dying is also illegal. On February 5, 2022, a 55-year-old French man was arrested after assisting his 94-year-old mother in her suicide. He explained that he wanted to put an end to the “increasingly undignified situation of his mother”. According to his lawyer, the son was the “witness of a process of dehumanisation” and only acted at the request of his parent.
It is interesting to compare these two countries which refuse the legalisation of assisted dying to better understand the arguments of the lawmakers. Indeed, in France and in England, assisted dying (which includes assisted suicide and euthanasia) is a criminal offence. Assisted suicide happens when a patient ends their life with the help of a third person like a physician (physician assisted suicide). In France, it is considered as non-assistance to a person in danger, and the third party can be sentenced to five years imprisonment and 75,000€ fine. In England, section 2 of the Suicide Act 1961 condemns any action encouraging or assisting suicide. The third party can be sentenced to up to fourteen years in prison. Euthanasia can be defined as a third party ending the life of a consenting patient, by injecting the patient with a drug for example. In France, it is considered as a form of murder, which is punishable by 30 years of criminal imprisonment (article 221-1 of the French Penal Code), while in England, euthanasia is associated with murder or manslaughter, punishable by life imprisonment.
The French and English legal systems refuse the legalisation of assisted dying. However, many cases have enabled legislation to evolve towards better end-of-life management by legalising palliative care, “active and continuous care [aimed] at relieving pain, alleviating psychological suffering, to safeguard the dignity of the sick person” (Article L. 1er B. of the law of June 9, 1999, that is guaranteeing the right of access to palliative care). Moreover, in France, passive euthanasia – the cessation of a treatment necessary to maintain life with the intention of the death of the patient – is more accepted.
This article aims to present the evolution of French and English law on the issue of end of life (I), as well as the arguments put forward by legislators to refuse the legalisation of assisted dying (II).
I. The limited evolution of English and French laws
The evolution of French and English legislation is divided between a refusal to legalise assisted dying and a desire to improve end-of-life management. In France (1), as in England (2), cases have led to major changes in the law: the recognition of advance directives and the possibility of refusing hydration and artificial nutrition. Moreover, France is the first country to legalise long and continuous sedation, allowing implicit recognition of passive euthanasia.
- Towards a tolerance of passive euthanasia in France
In France, the first case that influenced legislation on this issue was the Vincent Humbert case in 2003. Vincent Humbert was the victim of a road accident in 2000, rendering him quadriplegic, mute, and blind. In 2003, his mother, helped by a doctor, assisted the death of her son. This prompted the legislator to adopt the Leonetti law on April 22, 2005, relating to the rights of patients at the end of their lives. This law completed the right to palliative care thanks to advance directives: the possibility for a person to express in a written document their wishes regarding the medical decisions to be taken at the end of their life. This document must be renewed every three years. This law also prohibited unreasonable use of intensive medication when it is unnecessary, disproportionate or has the sole purpose of artificially sustaining life (Article 2 of the Law of February 2, 2016 creating new rights for patients and people at the end of their lives). This prohibition makes it possible to introduce a right to “let die” allowing a patient who refuses any medical treatment to have their wishes respected by a medical professional even if this choice puts their life in danger. This means, for example, that a patient wishing to halt their medical treatment, such as a drug given to relieve pain, can request this in order to hasten the end of their life.
A second case that allowed an evolution of French law on the issue is the Vincent Lambert case. After a road accident, this man found himself in a vegetative coma. In 2013, six years after the accident, the doctor in charge of taking care of Lambert concluded that there was unreasonable use of intensive medication and decided to stop artificially feeding him. However, Mr. Lambert’s parents opposed the decision, and a long legal procedure ensued. In 2019, Vincent Lambert’s treatments were stopped, and he died a few weeks later. It was following this highly publicised case that the legislator adopted the Claeys Leonetti law of February 2, 2016, creating new rights for patients and people at the end of their lives. According to this law, the physician must respect the will of the patient expressed in advance directives and artificial nutrition and hydration constitute medical treatments, which can be stopped (article L.1110-5-1, (2) of the French Public Health Code). Finally, this law also introduced the possibility for the patient to request deep and continuous sedation until their death, reinforcing the patient’s right to “let die”. This last element seems to suggest that the legislator tolerates passive euthanasia – even if they consider that the intention of deep and continuous sedation is not to cause death but to relieve pain when death is imminent and unavoidable. Therefore, hastening death is here justified by the relief of unbearable pain.
France is the first country to explicitly legalise continuous deep sedation. However, the use of this right remains subject to strict conditions, which is why several proposals have been put forward to push these limits or even legalise assisted dying. But the legislator has continued to reject the various proposals since 2016. For instance, the Euthanasia and Assisted Suicide for a Dignified End of Life Bill of December 20, 2017, was rejected by the Assemblée Nationale. This Bill would have allowed anyone suffering from unbearable pain to benefit from euthanasia or assisted suicide. Similarly, the End of Life With Dignity Bill of September 27, 2017, which aimed to establish physician-assisted suicide for anyone suffering from incurable physical or psychological pain was also rejected. Finally, recently, a Bill presented on January 26, 2021, which aimed at guaranteeing and strengthening the rights of people at the end of life was also rejected. It would have introduced physician-assisted suicide without explicitly defining the modalities of this assistance.
Thus, the French legislator has tried to extend the notion of palliative care as much as possible to ensure a dignified death for end-of-life patients, without legalising euthanasia and assisted suicide.
2. In England, the refusal of the legislator to legalise any type of assisted dying
In England, the Mental Capacity Act of 2005 allows patients to use advance directives as well as request the cessation of medical treatments (including hydration and nutrition).
The measures on advance directives were introduced following the Re C case.[1] In this case, a question arose concerning the ability of the patient with paranoid schizophrenia to give or withdraw consent for medical treatment. This ability to refuse medical treatment therefore echoed the situations of people at the end of life who become unable to express their consent because of an illness. The Law Commission therefore decided to introduce the possibility for the patient to use advance directives.
Additionally, thanks to the Airedale NHS Trust v Bland case, the Mental Capacity Act 2005 established artificial nutrition and hydration as forms of medical treatment which can be refused by the patient. In this case, Tony Bland suffered an accident that plunged him into a vegetative coma. His parents demanded that the treatments, including artificial hydration and feeding, be stopped. The court granted the parents’ request since there was no hope of recovery.
England has therefore adopted a similar position to France regarding advance directives and the possibility of refusing any treatment, in particular artificial hydration, and nutrition. But unlike France, which was the first country to legislate the right to deep and continuous sedation at the end of life, in England this remains unmentioned in the law. However, continuous deep sedation is used by physicians in nearly 17% of patient deaths. It is considered by all to be a legal form of pain relief, but the English legislator does not wish to hasten death, even if it is inevitable, and therefore does not legislate on this practice.
Additionally, lawmakers rejected three bills that proposed different forms of legalisation of assisted dying. These bills came after the Tony Nicklinson case. In 2008, Tony Nicklinson suffered a stroke that left him paralyzed and mute. He describes his life at a ‘living nightmare’ and wanted to end his life. However, he was unable to do it without help. He therefore asked the Supreme Court in 2012 to authorise him to end his life with the help of a doctor and to recognise the incompatibility of the law with his fundamental rights. Following the rejection of his requests, Tony Nicklinson refused nutrition and died shortly afterwards. If any of the bills had been passed, people in the same situation as Mr Nicklinson could have benefited from assistance in their suicide. In 2012, a former member of the Scottish Parliament presented a bill called “the Assisted Suicide (Scotland) Bill (2013)”. If adopted, this project would have allowed a person with a terminal illness to end his life with a drug prescribed by a doctor. The project was rejected at the first stage of the debate. Two other similar bills were considered and rejected in 2014 and 2015.
In France and in England the laws have been strongly influenced by various cases. However, English and French legislators still refuse to legalise euthanasia and assisted suicide. They justify their refusal by arguing that palliative care and assisted dying pursue different objectives: the former aims to relieve the patient’s pain while the latter aims to cause the death of the patient at the end of life.
II. The arguments of English and French legislators to justify their refusal to legalise assisted dying
The arguments of the English legislator are similar to those of the French when a new bill tending to the legalisation of assisted dying is under discussion in parliamentary debates. There are three main arguments to support the refusal of the legalisation of this practice. Legislators first point to a problematic lack of clarity for people who would be affected by assisted dying (1). They then believe that the management of end-of-life patients should be reformed rather than legalising assisted dying (2). Finally, the argument is put forward that the patient’s choice at their end of life also includes the possibility of changing their mind, which the irreversible act of assisted suicide does not allow (3).
1. The danger posed to patients by a lack of clarity in the proposed legislation.
French and English lawmakers argued that the bills were too vague. For example, the 2012 Bill proposed in Scotland did not include a definition to differentiate between euthanasia and assisted suicide. The Bills were therefore inadequate for a patient wishing to make their own choices at the end of their life. Indeed, the patient at the end of life wishing to die by their own hand (assisted suicide) but who ended up dying by an act of a doctor (euthanasia), would not take control of their end of life as they would have liked.
Moreover, this lack of clarity would have weighed on the medical profession which would have taken charge of this uncertain assisted dying. Indeed, it would have been necessary for the doctor to be subject to very clearly established rules, which would guarantee the consent of the patient regarding their assisted dying and would allow the doctor not to be judged for an act which they thought to be authorized. Finally, the lack of clarity of the bills would also have had repercussions for judges and lawyers who would have had many difficulties in assessing whether a case concerning assisted dying could be judged criminally. Considered to be too imprecise by the English and French legislators, they both preferred not to adopt these proposals.
2. Better management of the patient’s end of life
Another argument put forward by French and English lawmakers is that it is necessary not to legalise assisted dying, but to improve the situation of end-of-life patients.
French and English lawmakers argue that the issue at hand is reforming the care given to patients at the end of life and alleviating their suffering without resorting to assisted suicide or euthanasia. Indeed, according to them, the legalisation of assisted dying would become unnecessary if a painless end of life and better support for patients in their death were available.
French and English legislators dissuaded by the irreversible nature of assisted dying tried to put forward the alternative of a preferable end of life rather than the legalisation of said assisted dying.
3. “Freedom is to change your mind”
One of the essential arguments in favour of legalising euthanasia is that the patient should be able to choose and take control of their end of life. But the freedom to choose also includes the freedom to change one’s mind; the irreversible act of assisted dying would therefore be unsuitable for end-of-life patients. According to this approach, the patient who seeks death would in fact only want to shorten their suffering. In addition to this, legislators consider that sometimes death is desired by the patient not to end their pain but to avoid becoming a “burden” for their family. As a result of this, the legislators’ opinion is very clear: because of the irreversible nature of assisted dying, it cannot be legalised without infringing on the freedom of patients to choose and change their minds.
To conclude, French and English legislations have evolved to guarantee patients a more peaceful end of life. Thanks to the desire to avoid the unreasonable use of intensive medication or the possibility of deep and continuous sedation, the patients’ suffering is relieved. However, lawmakers remain firm in their refusal to legalise assisted dying. On the other hand, society is changing and increasingly seems to desire the legalisation of assisted dying, as evidenced by the proposals in this direction made by several candidates during the last presidential elections in France and the numerous polls to this effect.[2]
Posted by Louise MILLESCAMPS (English and French Laws student, Essex)
Suggested citation: L MILLESCAMPS, “Assisted dying: A subject at the heart of legal and societal issues” BACL blog, available at https://wp.me/p80U0W-1fg.
Note : The author wrote this article during her frontrunner project. Frontrunner is a work placement that the University of Essex is offering to students. Her project is focusing on research on the legalisation of assisted dying in England and in France. This article is a translation into English from an article that she published in French on the Essex Law Research Blog (available by clicking here).
[1] C (Adult: Refusal of Medical Treatment), Re [1994] 1 WLR 290 (Fam).
[2] According to the IFOP, the view of the French on the End-of-Life, April 2021, 93% of French people wish for the legalisation of euthanasia for anyone suffering from unbearable and incurable diseases. In England, Populus, (now called Yonder), Dignity in Dying Poll, 2019 established that 84% support the legalisation of assisted death in dying patients.
British Association of Comparative Law 