The introduction of Kim Leadbeater’s Private Member’s Bill which will, if enacted, legalise assisted suicide for ‘Terminally Ill Adults’ in England and Wales has, unsurprisingly, drawn significant commentary from many quarters, including some legal academics and practitioners. This is despite the fact that, as yet, Leadbeater’s Bill has not been published.

Debates on assisted dying are always highly contested, with people legitimately holding diverse points of view. It is, thus, important to separate out different aspects of the debate, which may include: (i) the importance of the right to life, as well as beliefs in respect of the sanctity of life; (ii) concerns regarding the position of doctors, as well as conscientious objection; (iii) concerns as to whether the decriminalisation and regulation of assisted dying will compromise the provision of quality palliative care; (iv) whether the legislation will expand to allow those who are not terminally ill to access assistance and/or extend to children (slippery slope arguments); and (v) the process by which the legislation is being enacted.

For the purpose of this post, I will focus on the slippery slope argument, as it has been referenced extensively in response to Leadbeater’s Bill. Slippery slope arguments are ubiquitous in assisted dying debates. Put crudely, they posit that legalisation of assisted dying should be opposed because it is impossible to include sufficient safeguards against future expansion of any scheme. Slippery slope arguments are rhetorical devices under which several different perspectives seek refuge. In the context of debates regarding the legalisation of assisted dying, this can include both those who do not object to the provision of assisted dying (whether that is assisted suicide only or assisted suicide and voluntary active euthanasia) for terminally ill adults but are concerned about the resilience of safeguards against expansion, as well as those who fundamentally object to any form of assisted dying and thus would not support its legislation in any circumstances. For those that are concerned about expansion, focusing on the slippery slope argument makes sense and, for reasons that I will explain below, it may be possible to assuage their concerns. For those in the latter camp, who oppose legislation in all circumstances, positioning themselves under the guise of the slippery slope argument is perilous, because if that alleged risk can be assuaged, their stated legal objection disappears while their underlying opposition persists.

The most detailed analysis of the slippery slope argument in the context of Leadbeater’s Bill has been provided by Philip Murray, who authored a post on the Bill on this blog last week. Murray proceeds on the assumption that Leadbeater’s Bill will reflect Lord Falconer’s Assisted Dying for the Terminally Ill Adults Bill [HL]. He opposes the enactment of Leadbeater’s Bill because he contends that there is a real possibility of domestic courts and/or the European Court of Human Rights (ECtHR) finding that an assisted dying scheme that is limited to the provision of assisted suicide to terminally ill adults with a specific life expectancy is discriminatory, in violation of Article 8 taken together with Article 14 of the European Convention on Human Rights (ECHR). If such an argument were to find success before the domestic and/or Strasbourg courts this would, Murray suggests, likely result in Parliament amending the legislation to include individuals who are not terminally ill. Such an outcome, according to Murray and others who rely on the slippery slope argument to oppose legalisation of assisted dying, would be unacceptable and militates against the enactment of the Bill in the first place.

The normative limitations of the slippery slope argument as a rhetorical device have been considered in detail elsewhere (e.g. here and here), as have the merits of its application in the assisted dying context in particular (e.g. here and here). Suffice it to say, it is not uncontentious. The function of this post, however, is not to engage with those well-trodden assessments of the slippery slope argument (I have set out elsewhere why the data does not bear out the slippery slope argument in respect of the legalisation of assisted dying). Rather, I wish to respond specifically to several of the contentions in Murray’s post, particularly as it relies on earlier work of mine to oppose Leadbeater’s Bill.

Article 14 ECHR prohibits discrimination between individuals in ‘analogous, or relevantly similar, situations’ (see, for instance, Carson v the United Kingdom (2010) 51 EHRR 369 at [61] and R (SG and Ors) v Secretary of State for Work and Pensions [2015] UKSC 16 at [8]). Murray’s post assumes that those whom he contends would, by virtue of the slippery slope, end up being permitted to access assistance in dying (i.e. those with a ‘physical disability, acute mental illness, etc.’) are in ‘analogous, or relevantly similar, situations’ to terminally ill individuals who have six months or less to live, such that permitting such access to the latter but not the former could engage Article 14. But that is by no means a foregone conclusion. Without first establishing the necessary correspondence between the groups of individuals being compared, the concern Murray raises that ‘[p]ermitting assisted suicide for some groups but not others is therefore likely to deprive the UK of its principal justifications for a ban on assisted suicide’ does not materialise.

In my earlier work, I have suggested that differentiating between individuals on the basis of suffering could constitute discrimination. Specifically, legislative schemes which only extend to individuals who are suffering intolerably and who have a terminal illness have the effect that individuals who are arguably in analogous or relevantly similar situations (i.e. those who are suffering intolerably) are treated differently on the basis of their illness (i.e. terminal or not), and that constitutes discrimination for the purposes of Article 14. Because of my wider conclusion that bans on assisted dying are not justified under Article 8(2) (since it is possible to create a system of assisted dying that protects vulnerable individuals while also securing the rights of those wanting to be assisted to die), I argue that such differential treatment is without a reasonable and objective justification and, therefore, violates Article 14 taken together with Article 8. Murray similarly notes that ‘[t]he UK would need the clearest justification for terminally ill adults being able to end their lives but not those experiencing equal or greater suffering because of physical disability, acute mental illness, etc’ (emphasis added). But – critically to this argument – Falconer’s Bill (and, presumably, Leadbeater’s) does not include a suffering requirement. Whereas other jurisdictions have introduced assisted dying on the basis of both a condition requirement and a suffering requirement (see, for instance, Canada and Victoria (Australia)), in contrast, Falconer’s Bill requires only that the person has been diagnosed with ‘an inevitably progressive condition which cannot be reversed by treatment’ and that ‘as a consequence of that terminal illness, is reasonably expected to die within six months’. On that basis, not extending assisted dying to those without a terminal illness is not to differentiate between analogous or relevantly similar cases of suffering and the slippery slope argument fails at the first hurdle. It bears noting that Falconer’s Bill – insofar as it is limited to individuals with a terminal illness and a life expectancy of six months or less – reflects the position in the US states/district that permit assisted suicide. I am unaware of any successful legal challenge on the basis of discrimination to the condition requirements in those jurisdictions.

However, even if we were to assume for the purposes of Article 14 that there is a correspondence between terminally ill individuals with six months or less to live and those whose suffering emanates from a mental illness or non-terminal physical disability, there is case law from the ECtHR to suggest that their differential treatment would not necessarily run afoul of the non-discrimination provision. While Murray is correct that Strasbourg has not directly considered whether limiting assisted dying to adults with terminal illnesses who have 6 months or less to live is discriminatory under Article 14, the ECtHR’s observations in the very recent case of Daniel Karsai v Hungary are illuminating. In particular, the ECtHR in that case noted that there were objective and reasonable justifications for differentiating between, on the one hand, individuals receiving life-sustaining treatment who were, under Hungarian law, permitted to refuse it (thus bringing about their death), and, on the other, terminally ill individuals who were not receiving such treatment and who, because of the ban on assisted suicide in Hungary, could not be assisted to die. In particular, the ECtHR considered that (at [150]):

any system of [physician-assisted dying] – even one limited to terminally ill patients with refractory symptoms … – would require the development of a robust regulatory framework, capable of being effectively and safely applied in practice, and willingness to cooperate on the part of the medical profession. It notes in this connection that the safeguards which are already in place with respect to [refusal and withdrawal of treatment] in Hungary and some other contracting States might admittedly be of some relevance… . However, it cannot be overlooked that the provision of [physician-assisted dying] in respect of patients who are not dependent on life support may give rise to further challenges and a risk of abuse. (Emphasis added)

The Court appears to accept that a system of assisted dying could legitimately be ‘limited to individuals who are terminally ill with refractory symptoms’. Further, the ECtHR recognises that particular risks of abuse may arise with respect to specific individuals. Thus, contrary to Murray’s claim that ‘there are significant questions as to whether [legislation limiting assisted dying to individuals with a terminal illness with six months or less to live] could be justified on Article 14 grounds’, the ECtHR appears willing to accept State justifications for such differential treatment. Indeed, the Court went on to state in Karsai that ‘[e]nsuring the ongoing validity of the request can be particularly difficult in the case of medical conditions, such as ALS [a terminal neurodegenerative condition], where patients might ultimately lose the ability to communicate’ (at [151]). This further suggests that the ECtHR may be receptive to assisted dying regimes that differentiate between conditions.

It is by no means a given that, should assisted suicide be legalised in England and Wales and limited to the terminally ill with a life expectancy of six months or less, a case under Article 14 challenging the failure to extend the scheme to others would succeed. Certainly, there is just as strong a likelihood that the ECtHR would, having regard to the ‘considerable margin of appreciation’ States have when it comes to regulating end-of-life practices such as assisted dying, determine that even if there is differential treatment of individuals in analogous or relevantly similar situations, that difference has an objective and reasonable justification. Indeed, as the ECtHR observed in Karsai, States ‘must be granted a considerable margin of appreciation’ which extends ‘both to their decision to intervene in this area and, once they have intervened, to the detailed rules laid down in order to achieve a balance between competing interests’ (at [144], emphasis added). In such circumstances, it seems even less likely that the domestic courts would find a violation of Article 8, taken together with Article 14, especially following the overturning of Re G [2008] UKHL 38 in R (Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56.

In his post, Murray states that ‘[t]he slippery slope is not a fiction, invented by scaremongering opponents of assisted suicide. It is a real possibility baked into the present law. And those seeking a change in the law need to acknowledge this and address these arguments head-on.’ As I’ve indicated, the slippery slope may not be the ‘real possibility baked into [Falconer’s/Leadbeater’s] law’ that Murray contends. In any event, it is also important that opponents of the legalisation of assisted dying ‘acknowledge … and address’ the arguments that current bans on assisted suicide are incompatible with the rights of those individuals seeking lawful assistance. Absent from Murray’s post – and the letter he references in it – is any acknowledgement of the lived realities of those individuals who are precluded from accessing assistance in dying because of section 2 of the Suicide Act 1961. There is no recognition of the fact that individuals are compelled to suicide prematurely because of the ban before they lose physical capacity to do so unaided (such a reality was acknowledged by Lord Neuberger in R (Nicklinson) v Ministry of Justice 2014] UKSC 38 at [96]). To that end, as I have argued elsewhere, the ban on assisted dying is itself a violation of the right to life in Article 2 ECHR. The debate surrounding assisted dying is not simply one of autonomy on the one hand and sanctity of life on the other, with the alleged slippery slope decisively foreclosing any further consideration of the decriminalisation and regulation of assisted dying. Rather, there are competing concerns regarding the right to life on both sides of the scale. Opponents of Falconer’s Bill (and, presumably, Leadbeater’s) must also ‘acknowledge … and address’ that reality.

I am incredibly grateful to Dr Kirsty Hughes and the Editors of the UKCLA Blog for their very helpful comments on my earlier drafts. Any errors are my own.

Dr Stevie Martin

(Suggested citation: S. Martin, ‘The Decriminalisation and Regulation of Assisted Suicide in England and Wales: Acknowledging and Addressing the Slippery Slope Argument’, U.K. Const. L. Blog (5th November 2024) (available at https://ukconstitutionallaw.org/))