Should the UK law mirror Article 294 of the Dutch Penal Code?

The distinction between physical and psychiatric disorders

The UK law is currently incompatible to allow those with psychiatric disorders to access life shortening care as the nature of ‘withdrawal of treatment’ requires the individual to be dependant on life-sustaining care. It is argued by Seppanen, that the line drawn between lawful and unlawful life shortening practises is unjustified as it is exclusionary. [1] Psychiatric disorders cannot qualify under withdrawal of treatment, however euthanasia and assisted suicide on the basis of psychiatric disorders are permitted in Netherlands and Belgium. [2] Article 294 of the Penal Code needs to be satisfied for Physician Assisted Suicide to be lawful. The request by the patient must be “voluntary”, [3] “well-considered”, [4] “informed”, [5] with no “other reasonable solution” [6] and the suffering must be “lasting and unbearable”. [7] This sets out an extremely low threshold as “lasting and unbearable” suffering is subjective and has been held to include psychiatric suffering with cases increasingly steadily since 2010. [8]

Reviewing the literature...

A review of the literature shows the main argument in support of life shortening care for psychiatric disorders is that the factors that justify life shortening care in the terminally and physically ill, namely autonomy and suffering, can be present in psychiatric disorders. Therefore excluding psychiatric disorders is discriminatory. [9] [10] [11] However, Pearce argues that mental illness is distinct from physical illness due to the descriptive nature of diagnosis creating an unreliability of predictions, [12] therefore the nature of diagnosis itself is what excludes life-shortening care for psychiatric illness. The nature of diagnosis for many psychiatric disorders under the DSM-5 include ‘thoughts of death and suicide’ as diagnostic features, [13] this overlap between psychiatric disorders and suicidal ideation surely damages the credibility of arguments claiming that ‘excluding psychiatric disorders is discriminatory’, [14] as the pillar of protection of the vulnerable takes priority over autonomy. We can therefore conclude that the unlawful status of life shortening care for psychiatric illness is justified under UK law.

References:

[1] Marjaana Seppänen, Mia Niemi, Sofia Sarivaara, 'Social relations and exclusion among people facing death’ 20(1) (2023) European Journal of Ageing

[2] Matteo Scopetti, Donato Morena, Martina Padovano, Federico Manetti, Nicola Di Fazio, Giuseppe Delogu, Stefano Ferracuti, Paola Frati, Vittorio Fineschi ‘Assisted Suicide and Euthanasia in Mental Disorders: Ethical Positions in the Debate between Proportionality, Dignity, and the Right to Die’ 11(10) (2023) Healthcare (Basel)

[3] Dutch Penal Code art 293 1(a)

[4] Dutch Penal Code art 293 1(a)

[5] Dutch Penal Code art 293 1(c)

[6] Dutch Penal Code art 293 1(d)

[7] Dutch Penal Code art 293 1(b)

[8] Marie Nicolini, Scott Kim, Madison Churchill, Chriss Gastmans, ‘Should euthanasia and assisted suicide for psychiatric disorders be permitted? A systematic review of reasons’ Phycological Medicine 2020

[9] Ryan Tanner, ‘An Ethical-Legal Analysis of Medical Assistance in Dying for Those with Mental Illness’ 56(1) 2018 Alberta Law Review 149-175

[10] Bonnie Steinbock, ‘Physician-Assisted Death and Severe, Treatment-Resistant Depression’ 47(5) 2017 Hastings Centre Report 30-42

[11] William Rooney, Udo Schuklenk, Suzanne van de Vathorst ‘Are Concerns About Irremediableness, Vulnerability, or Competence Sufficient to Justify Excluding All Psychiatric Patients from Medical Aid in Dying?’ 26(4) 2018 Health Care Analysis 326-343

[12] Steve Pearce, ‘Invited commentary on … When unbearable suffering incites psychiatric patients to request euthanasia: a qualitative study’ 211(4) 2017 The British Journal of Psychiatry 246-247

[13] Matteo Scopetti, Donato Morena, Martina Padovano, Federico Manetti, Nicola Di Fazio, Giuseppe Delogu, Stefano Ferracuti, Paola Frati, Vittorio Fineschi ‘Assisted Suicide and Euthanasia in Mental Disorders: Ethical Positions in the Debate between Proportionality, Dignity, and the Right to Die’ 11(10) (2023) Healthcare (Basel)

[14] Marjaana Seppänen, Mia Niemi, Sofia Sarivaara, 'Social relations and exclusion among people facing death’ 20(1) (2023) European Journal of Ageing