One standard response to any proposal whatsoever to legalise assisted dying is to warn of “a slippery slope”. It often does not matter what the proposal itself is, the stock reaction will be the same: we should not do that, because who knows where it will lead?
There are, however, a couple of problems with this response, at least in respect of the law of England and Wales.
The first is that a “slippery slope” counterpoint in and of itself is never an argument against any particular proposal, but only against possible other outcomes. It is an objection to [y] which may lead from [x], but not directly to the [x] actually being put forward. Indeed, it is often an implicit admission that there is nothing wrong with a suggestion when considered on its own merits.
The second objection is more practical and perhaps more profound. It is that the law relating to assisted suicide is already a slippery slope by any meaningful definition. The law as it stands is an uncertain and unreliable mess and, unless reformed, can permit the scenarios that those opposed to reform purport to worry about, where those assisting can cover any undue pressure they have exerted by saying the right things to nod-along investigators and prosecutors.
The existing regime is as follows. A 1961 statute decriminalised suicide and attempted suicide, but expressly provided for it to be a blanket offence to assist or encourage another person committing suicide. But following various legal challenges, the Crown Prosecution Service (CPS) has developed elaborate guidance on when it would be in the public interest or not in the public interest to prosecute.
There are factors which, if present, mean that, despite the clear terms of the 1961 Act, there is unlikely to be any prosecution for assisting someone to end their life. Did the “victim” (the term the CPS uses to define the person who dies or attempts to die by suicide) reach a voluntary, clear, settled and informed decision to end their life? Was the suspect wholly motivated in assisting them by compassion? Were their actions only minor encouragement or assistance? Did the suspect try to dissuade the victim from taking the course of action which resulted in their suicide? Can the actions of the suspect be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide? Did the suspect report the victim’s suicide to the police and fully assist them in their enquiries into the circumstances of the suicide and of their part in providing encouragement or assistance?
These factors are not black and white and so require subjective evaluation by the prosecuting authority of what they are told by those who have assisted a person taking their own life. The factors are, and there is no better word, “slippery”. And there is no certainty as to where the general trend of decision-making will lead over time. It is thereby also a “slope”.
This means that although there is, in theory, a total prohibition on assisting suicide, it is in practice a matter each time for fallible bureaucratic discretion and for evolving personal views as to the public interest in prosecuting, based on what the authorities have been told by those involved. As the interpretation of each of these factors against the public interest is pushed further, the scope of who will be and who will not be criminalised becomes vaguer and wider.
The reason for this law-by-guidance as opposed to precise legislation is that parliament so far has not wanted to intervene—or be seen to intervene. A real “slippery slope” has thereby been created by those purporting to be against slippery slopes.
The bill now before parliament would replace these inexact and ever-flexible guidelines with precise and firm safeguards, with a need for independent judicial determinations, and specific new offences for those using coercion and undue pressure. Those wanting to die and those who can assist will instead be able to look at the letter of the law rather than attempt to predict what a prosecutor will subjectively decide under the current guidance. The bill will replace the current slippery slopes with a solid concrete floor.
There will always be concerns about the abuse and misuse of any law relating to life and death. But that is never a reason for there not to be a law. Something as important as assisting dying should not be left to a legal void filled by pure prosecutorial discretion. Anyone sincerely concerned about “slippery slopes” should support the private members’ bill of Kim Leadbetter and Lord Falconer.
