Protecting vulnerable individuals

It is important to have a clear understanding of what is meant by ‘vulnerable individuals’. As was canvassed in Chapter Four, reference to ‘vulnerable individuals’ in the context of assisted dying refers to persons susceptible to undue influence. There is no characteristic that ipso facto renders a person ‘vulnerable’ to such influence; a person with a disability is no more likely to be vulnerable to undue influence than an individual who has a terminal illness, and there are any number of factors that can coalesce to leave a person vulnerable to undue influence. It is, then, misleading to suggest that individuals who access assisted suicide are, solely by virtue of their request for assistance, more vulnerable to undue influence than individuals who receive other forms of medical treatment, including end-of-life care. Insofar as there are characteristics which may be associated with vulnerability to undue influence (for instance, socioeconomic status, age, education, private health insurance) Justice Smith determined that based on the evidence before her, which included evidence from Baroness Finlay, data from regulatory bodies in permissive jurisdictions, and additional studies by academics in those jurisdictions, ‘the predicted abuse and disproportionate impact on vulnerable populations has not materialised’.²² Further, ‘although none of the [permissive] systems has achieved perfection, empirical researchers and practitioners who have experience in those systems are of the view that they work well in protecting patients from abuse while allowing competent patients to choose the timing of their deaths’.²³

While Justice Smith was cautious in her approach to the evidence from other permissive jurisdictions given the different demographic and cultural contexts and methods of healthcare delivery, she nevertheless noted the concerns of several experts regarding the reporting rates of physicians assisting in their patients’ deaths in certain permissive jurisdictions, especially Belgium and the Netherlands.²⁴ There was evidence before the trial judge of ‘low rate[s] of reporting’ in Belgium and the Netherlands. However, that data could not be considered in isolation from the context in which medical assistance in dying had arisen in both jurisdictions. Importantly, in both Belgium and the Netherlands, there was a practice of medically assisted dying prior to the introduction of legislation permitting same and there was evidence that ‘in some measure the impetus toward permissive legislation [in those jurisdictions] came from a desire to achieve better understanding, and regulation, of practices of assisted death that were already prevalent and embedded in the medical culture’.²⁵ Further, a significant amount of unreported cases could be attributed to ‘'mislabelling’ by physicians who do not consider death following the administration of pain-relieving medication to be euthanasia.²⁶ Indeed, in England and Wales, provided the patient’s death follows the appropriate administration of pain relief and there is no express intention to bring about the patient’s death, it would not be considered euthanasia and would be covered by the doctrine of double effect.²⁷