Slippery slopes and uphill battles

Assisted Dying and Legal Change
September 28, 2007

Published less than a year since the Assisted Dying for the Terminally Ill Bill was debated and defeated in Parliament, Assisted Dying and Legal Change is a timely addition to the literature on legal approaches to assisted dying. Penney Lewis acknowledges that concerns about the inappropriate prolongation of the dying process persist in the West, causing anxiety and prompting calls for legal change to permit assisted dying. Unlike many other texts on the subject, however, her book does not consider whether assisted dying should be legalised, nor does it claim to. Instead, focusing on a number of different jurisdictions, it compares the routes used in attempts to legalise assisted dying and examines the failure of cases based on challenges to constitutionally drawn rights to effect legal change in the major common law jurisdictions of the US, the UK, Canada and Europe. The effective use of the defence of necessity as a mechanism for legal reform in the Netherlands is contrasted with these failures in a bid to explain why the differing approaches have met with diverse outcomes.

To stand any chance of successfully reforming the law to permit assisted dying, each jurisdiction must formulate a response using a legal apparatus tailored to the needs of the specific community rather than simply attempting to replicate the approaches adopted in other provinces. Lewis describes the ways in which reform has been achieved in those jurisdictions, and counters this with examples of human rights and constitutional rights cases that have failed.

Her argument would have been stronger had she provided more detail and more analysis. For example, what "other factors have undoubtedly operated to cause the divergence between the common law and Dutch interpretations of necessity"? A detailed critique of these would have provided a valuable platform on which to base a more convincing argument.

Bioethicists and other scholars have long debated whether permissive legal change will inevitably result in normalisation leading to abuse and exploitation of the sick and elderly who are perceived as inherently vulnerable: the slippery-slope argument. In her last chapter, Lewis examines these arguments and focuses specifically on the premise that legalisation will inevitably result in general acceptance of non-voluntary euthanasia. The apparent aim of the chapter is to explain the significance of these arguments where attempts at legal change have failed, but the intention is not clearly articulated, leaving readers to ponder what conclusions Lewis wants them to draw.

The book is exceptionally well referenced, and the division of the bibliography into headed sections means that as a reference tool it will be a valuable addition to the literature. There are, however, numerous occasions when the enquiring reader will be left wondering why or how, because Lewis does not always interrogate the material sufficiently deeply or precisely fully to explain her contentions. Scholars and students may therefore feel that the argument and central themes could be more explicitly expressed and the analysis more compelling.

While Lewis has been absorbed by the mechanisms by which such reform might best be achieved, and the successes and failures of various approaches in different jurisdictions, the biggest question remains: can assisted dying improve the "modern reality of dying" and, if so, when and how will it be implemented? More direct contextualisation, perhaps by locating the discussion within the context of the Assisted Dying for the Terminally Ill Bill, would have strengthened the work and helped to address those questions.

Hazel Biggs is professor of medical law, Lancaster University Law School.

Assisted Dying and Legal Change

Author - Penney Lewis
Publisher - Oxford University Press
Pages - 256
Price - £50.00
ISBN - 9780199212873

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