Analysing the Issue of Psychiatric Assisted Dying from the Perspective of Parity: Does Parity Demand Access?
| Author | Allegra Enefer |
| Position | LLB (LSE) '20 |
| Pages | 127-168 |
2021 LSE LAW REVIEW
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Analysing the Issue of Psychiatric Assisted Dying from
the Perspective of Parity: Does Parity Demand Access?
Allegra Enefer*
ABSTRACT
The UK is ostensibly committed to achieving parity of esteem between mental and physical
health, yet the attempts to legalise assisted dying in recent years have focused exclusively on
physical suffe ring. In this article, I will analyse the issue of psychiatric assisted dying from a
‘parity perspective’. According to this perspective, a blanket prohibition on access for psychiatric
patients would only be justified if there existed a relevant difference between mental and physical
illness in relation to assisted dying which could not be accommodated with proportionate
safeguards. Three justifications for treating these cases differently have been advanced in the
literature: firstly, that the normative rationale for assisted dying could only apply to physical
suffering; secondly, that severely mentally ill patients cannot be considered competent to request
assisted dying; and thirdly, that mental illness c annot be considered ‘incurable’. As I will
demonstrate, none of these justifications are persuasive. Furthermore, risks which do exist
specifically in the psychiatric context can be accommodated through parity-focused s afeguards. I
will conclude that no relevant difference exists between mental and physical illness that
proportionally justifies a blanket prohibition on psychiatric assisted dying. Therefore, any attempt
to legalise assisted dying in England and Wales must permit access for ce rtain psychiatric
patients.
* LLB (LSE) ‘20. The author is most thankful to Professor Emily Jackson and Dr Cressida
Auckland for their supervision.
Analysing Psychiatric Assisted Dying from the Perspective of Parity Vol. VI
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INTRODUCTION
The UK is now committed to achieving parity of esteem, and yet successive
attempts at legalising assisted dying appear to have privileged patients with
physical illnesses and disregarded the question of access for patients w ith
psychiatric disorders. Parity of esteem demands the equal provision of healthcare
to mentally and physically ill patients. A blanket prohibition on psychiatric assisted
dying would only be justified if there existed a relevant difference between mental
and physical illness in relation to assisted dying which could not be
accommodated with proportionate safegu ards. Three justifications for treating
these cases differently have been advanced in the literature. As I will demonstrate,
none are persu asive. Firstly, it c ould be argued that the normative rationale for
assisted dying could only apply to physical suffering. I will consider three potential
rationales: relief of unbearable su ffering; aut onomy; and incurability, and I will
conclude that some psychiatric patients could qualify fo r access under all three.
Secondly, in relation to the autonomy rationale, some academics (such as P aul
Appelbaum, Matthew Broome, and Angharad de Cates) have advanced
arguments to the effect that severely mentally ill patients cannot be considered
competent to request assisted dying. I will reject this claim by asserting that such
patients can be competent to request assisted dying insofar as their desire to die
is ‘authentic’, and parity-focused safeguards can aid clinicians in assessing the
authenticity of requests. Thirdly, in relation to the incurability rationale, authors
such as Paul Appelbaum and Thomas Bilkshavn argue that mental illness cannot
be considered ‘incurable’ such that the provision of assisted dying is not justified.
I will reject this argument by advancing a ‘qualitative’ understanding of incurability
in the psychiatric context and argue that this understanding is necessary to achieve
parity of esteem. Where specific risks do exist in the psychiatric context, they can
and should be accommodated from a parity perspective. Any attempt to legalise
assisted dying in England and Wales must therefore permit access for certain
psychiatric patients.
The law on assisted dying
‘Assisted dying’ is an umbrella term which refers to voluntary euthanasia
and assist ed suicide. B oth forms of assisted dying are criminalised in the UK,
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including for patients with physical illnesses. Voluntary euthanasia is p rohibited
under the ordinary criminal law of murder, 1 and assisted suicide is criminalised
under section 2(1) of the Suicide Act 1961.2 In recent years, there have been
various attempts to legalise assisted dying. Several b ills proposing to le galise
assisted dying for competent patients diagnosed with a terminal illness have been
brought before Parliament, but none have succeeded.3 A new bill, with
substantially similar provisions, is awaiting its second reading in the House of
Lords.4 There have also been several judicial challenges against the prohibition of
assisted suicide,5 arguing specifically that the prohibition violates patients’ right to
private and family life under A rticle 8 of the European Convention of Human
Rights (ECHR) as applied by the Human Rights Act 1998.6 The Supreme Court
has expressed serious concern about the compatibility of section 2 of the Suicide
Act with Article 8.7 They have so far declined t o make a declaration of
incompatibility, instead referring the issue back to Parliament.8
I. PARITY
I will adopt a ‘parity perspective’ to the issue of psychiatric assisted dying. If
the UK is to legalise assisted dying, then according to this perspective, a blanket
prohibition on its provision for psychiatric disorders would undermine the UK’s
legal commitments to parity, unless one could prove that there exists a relevant
difference between mental illness and physical illness in the context of assisted
dying which cannot be accommodated by proportionate safeguards.
The UK is expressly committed in law to achieving parity of esteem between
mental and physical health. Parity of este em is defined as, among other things,
equal access to effective care and treatment, equal status within health care
1 R (Nicklinson and Another) v Ministry of Justice [2014] UKSC 38 [2015] AC 657.
2 Suicide Act 1961, s 2(1).
3 Assisted Dying Bill [HL] 2014-15; Assisted Dying (No. 2) Bill 2015-16; Assisted Dying
Bill [HL] 2016-17.
4 Assisted Dying Bill [HL] 2019-21.
5 R (on the application of Pretty) v Director of Public Prosecutions [2001] UKHL 61 [2002] 1 AC
800; R (on the application of Purdy) v Director of Public Prosecutions [2009] UKHL 45 [2010] 1
AC 345; Nicklinson (n 1); R (on the application of Conway) v Secretary of State for Justice [2018]
EWCA Civ 1431 [2020] QB 1.
6 Human Rights Act 1998, art 8.
7 Nicklinson (n 1) [111]-[113].
8 ibid.
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