The Need for a Constitutional Solution to the 'Duty to Die' Concern

A major concern of those opposed to the Terminally Ill Adults (End of Life) Bill is that it will not sufficiently protect people who might feel they have a “duty to die”. This is more of a problem for the UK than many other countries because duty is the predominant value within our society, underpinning the UK constitution and shaping the identity and choices of individuals. As a result, the UK will not be ready for the legalisation of assisted suicide until we have wider social change. Constitutional change can help us achieve this.

My research and the British Social Attitude survey show that our constitution and culture give a disproportionate place to duty and insufficiently foster individual freedom of choice. The core of our constitution in parliamentary sovereignty tells citizens that parliament must always be obeyed. Human rights protecting our choices are a recent idea within the UK Constitution and individuals’ sense of their own identity; the Human Rights Act 1998 (HRA) carefully preserved parliamentary sovereignty. The civil liberties which preceded the HRA similarly gave no ultimate protection against Parliament. The British Social Attitudes survey consistently shows that a preponderance of people feel that a law should be obeyed even if wrong.

Unlike countries with written constitutions, we have never had a clean break with the idea that the individual’s relationship with power is one of dutiful obedience. This constitutional value shapes individuals’ life choices more widely. England still expects everyone to do their duty.  Many of us habitually describe voting in elections as “doing our democratic duty”. Most recently the uncompromising “hard brexit” deal shows the idea of absolute obedience to a majority still has great force within our culture.

None of the many protections in the Terminally Ill Adults (End of Life) Bill will prevent a person choosing to die because they feel they have a duty to do so, to avoid being a burden on relatives or society’s resources. Our culture is such that people will do so. The fact that the Bill limits assisted suicide to the terminally ill who are expected to die within 6 months is a recognition of this danger.

We need assisted suicide to be legalised so that individuals are not forced to endure unbearable suffering. But for such law to be as safe as possible wider cultural change is necessary. The values of societies’ constitutions and cultures are mutually reinforcing. Thus constitutional change could change individuals’ sense of self, to give a greater place to a sense of our own autonomy in making choices, and make legalising assisted suicide safer.

The elements of the UK constitution which reinforce individuals’ duty sense of identity can be changed. Swiss law gives much greater freedom to make use of assisted suicide than the current UK bill proposes, assisting someone to die is lawful provided it is not done out of a selfish motive. But the Swiss law exists in a constitutional and cultural context of much stronger democratic processes maximising individual’s sense of their own autonomy. Proportional representation, strong regional government, even the greater use of referenda.

When our society really fosters individual’s autonomy – not just choice of consumer products – we will be able to make a free choice on when it is best for us to die. The constitutional and cultural change is achievable: a parliament and local government made more accountable through proportional representation, regional and local democratic bodies with real power, and a health and care service which is sufficiently funded to look after people rather than patch them up and manage pain. These will change how we think about ourselves and our relationship with others. Then we will be in a position to freely choose when to die.

Benedict Douglas, Associate Professor of Law, Durham University.

This blog post is based on research published in:

Bendict Douglas, ‘Too Attentive to our Duty: The Fundamental Conflict Underlying Human Rights Protection in the UK’ (2018) 38(3) Legal Studies 360

Benedict Douglas, ‘Love and Human Rights’ (2023) 43(2) Oxford Journal of Legal Studies 273