ElizabethWicks, Suicide and the Law, Oxford, Hart Publishing, 2023, 221 pp, hb £85.00

Suicide, as Elizabeth Wicks tells us, is a real problem. In 2019, it was the cause of 1.3 per cent of all deaths worldwide, and for every suicide there might be as many as 20 people who attempt suicide every year (1). When we speak about suicide, we normally emphasise the importance of prevention. Indeed, at the start of any discussion about suicide, it is common to refer the listener, or reader, to available sources of support, such as the Samaritans: as indeed Wicks has done and, as the reader will grasp, I am now doing as well. But at the same time, when we speak of assisted suicide, or of a supposed ‘right to die’, we are shifting the conversation towards autonomy. A major theme in this book is to examine how the law should reflect two priorities identified by Wicks: both prevention and the protection of human life, and the need to respect autonomous decision-making in appropriate cases. As the title would suggest, the book is mainly about the law, and specifically, the law of England and Wales. It also examines the law on suicide in a range of contexts, and therefore does not only address the more controversial topic of assisted suicide, where the tension between the protection of human life and the promotion of autonomy is more clearly visible. Throughout the book, certain recurrent trends emerge. Certainly, one can see the significant shift in the law's approach over the years from punishment to human rights. It is also fascinating to see, in different periods of time and in different contexts, the various approaches that have been taken to interpreting a person's ability (or inability) to make an autonomous decision about suicide, and the reasons for these different approaches. The first chapter examines the definition of suicide and presents profoundly different possible conceptual framings, which sets the scene for many subsequent discussions throughout the book. The traditional ‘moralistic view’ of suicide, which is usually associated with religion, is in line with a legal approach that condemns, prohibits, and punishes. According to the ‘sociological view’, by contrast, suicide is not a matter of individual choice but a result of social influences, whereas the ‘medical model’ sees suicide as caused by a medical problem, with links to mental illness. Both the latter two views would suggest that the law's approach should emphasise prevention rather than condemnation, with the medical model providing support as well for the possibility of compulsory treatment. The ‘rights view’, while also seemingly eschewing condemnation, tends to emphasise the importance of autonomy, including a possible right to die, although as Wicks says there are different rights at issue. Finally, the ‘consequentialist view’ might emphasise harm to others, but our evaluation of these considerations will depend on important normative evaluations. It should be said that some of these views seem to explain certain suicides more than others; the medical view, for example, might not seem as strongly related to arguments in favour of assisted dying. Wicks favours a ‘rights view’, but she argues that a right to die and a right to life have equal importance (12), which means that the law must distinguish between cases where autonomous decision-making should take precedence and those where there is a need to protect human life from a threat of suicide. It is noteworthy that this book was published only shortly after another book on the law on suicide, with the same publisher, and which also focuses on human rights: Jonathan Herring's The Right to be Protected from Committing Suicide (Oxford: Hart, 2022). The emphasis by Herring on a right to protection comes in stark contrast to the many contemporary discussions that emphasise primarily a right to receive assistance in dying. Wicks agrees with Herring that protection is important, and that the vast majority of suicide decisions are not autonomous, but she emphasises that the law must also be concerned with the minority of cases where a person chooses suicide in a manner that reflects the value of autonomy (12-13). Importantly, for Wicks, suicide as a choice can reflect autonomy not only in cases where an ill person wishes to have assisted dying, but also in other cases, and for reasons other than to avoid the progression of illness, or pain and suffering. The real challenge, for Wicks, is therefore not in determining whether we should promote a right to die or a right to life, but in determining which right should take precedence in individual cases. While there is agreement on some points between the two authors, there is certainly a different orientation in the approach taken by Wicks. Since it is not controversial that the protection of human life is an important objective, the emphasis on promoting autonomy in decisions to die will be one that repeatedly stands out throughout the book. The second chapter contains a particularly captivating analysis of the historical development of the law on suicide, and its evolution from an emphasis on condemnation and punishment towards prevention. While we may be familiar with the current emphasis on treatment rather than punishment, and the link which is often raised between suicide and mental illness, Wicks explains that suicide became associated with insanity in the seventeenth and eighteenth centuries due to a shift in approach from coroner's juries, which seems to have been motivated by a desire to avoid forfeiture and its perceived harsh effect on the family of the deceased. The initial linking between suicide and mental health, therefore, was not so much a result of an evolving medical view or a desire to treat, as a strategic attempt to avoid a largely resented penalty. It was also an approach that, at the time, raised concerns that it circumvented the rule of law (20). Eventually, in the nineteenth century suicide was seen as a social or a medical problem, reflecting the ‘sociological view’ or the ‘medical model’ described above, but Wicks is critical of the assumption that any person who attempts suicide is necessarily mentally ill, and says that this ‘is just as much a convenient label as the earlier assumption that they were all sinners before God’ (33). The following chapters develop some of these themes, and there is a clear recurrent criticism of areas where the law would not sufficiently reflect the value in autonomously making a choice to die. Chapter 3 tracks the development of the law towards the decriminalisation of suicide and beyond, with detail of contextual factors. Wicks also briefly analyses the increased role of the European Convention on Human Rights, and the balance to be struck between the right to life under Article 2, and what she describes (perhaps somewhat boldly) as a ‘right to autonomy’ under Article 8 (63). Although Wicks appears to think that the courts face a challenge in interpreting the existing offence of assisted suicide when the suicide itself is ‘a perfectly lawful action’ (35, and see 43), we need not think that there is a tension here. The law can reflect a disapproval of suicide through the crime of assistance while still not seeking to punish those who attempted to kill themselves but failed, if this punishment seems unkind, and unhelpful, where a person is in need of support. In Chapter 4 there is further criticism of the assumption that suicide should be linked with mental illness, although she does note that the latter is a risk factor (67). Here, she argues that rational suicide is possible, and that the law should focus on mental capacity rather than mental illness, with a stronger test for capacity that would ‘evaluate whether the decision-making process was not only a capacitated one, but also rational, consistent, forward-looking and reflective’ (91). It is not entirely clear what this would cover, however. Wicks discusses how a suicide can be rational if it is linked to the person's ‘fundamental interests’, and that this might be the case if the person seeks ‘to escape unbearable pain and suffering; to regain control over the options available to [that individual]; to avoid torture; or to save a loved one’ (71). She appears to think that a decision to die would be rational if the person wanted to avoid a further loss of autonomy as they age, for example, but that it would not be sufficiently rational if the person simply does not want to grow older, because a desire to avoid ageing is not itself rational (72). She applies this approach in her detailed analysis of the detention context, in Chapter 5, where she examines what obligations authorities may have to prevent suicide, but also emphasises that autonomy is still important to consider. Again, the application of the capacity test is not fully clear, but there is an emphasis on the desirability of moving towards this test, and away from a focus on mental illness. In the case of suicide of children or young people, which she examines in Chapter 6, she is more cautious, and says that supporting the autonomy of those under the age of 18 should require the involvement of persons with parental responsibility. Nevertheless, she does accept that there can be cases where a child could make an ‘informed and reflective’, and ‘truly autonomous’ choice to die, and although she seems mostly concerned here with the healthcare context (where, for example, the child has a long-term illness), she believes that these cases can occur even outside of that context as well (147). While Wicks says that such cases ‘will be very rare indeed’ (147), it would have been helpful to know more about how we could in fact identify them, and what circumstances she has in mind, given that many people will likely find this suggestion especially concerning. In Chapter 7, Wicks considers the refusal of life-sustaining treatment. While the law does not traditionally treat such a refusal as suicide, Wicks takes a seemingly radical position, and says that this decision constitutes suicide ‘as much as the person who takes an overdose or jumps from a building.’ (154) This might, however, be primarily a labelling issue, and Wicks notes that ‘suicide becomes a label used only for actions with which we disagree and not for genuine exercises of bodily autonomy’ (154). The labelling of refusal cases as suicide would support the arguments made by Wicks for the recognition of rational suicide, because any necessary association between mental illness and suicide becomes harder to maintain if refusal cases are categorised as suicides, given that these cases do already reflect the law's concern for decision-making capacity. However, it should be said that it might be easier to think that refusal cases are rational if a person is seriously ill and, for example, especially if the person is already engaged in a painful process of dying. The circumstances surrounding suicide in the examples she mentions above are unlikely to be the same. There is a difficulty as well in treating refusal cases as suicides when it is an offence to assist or encourage suicide, and when many cases of refusal will need to involve some involvement from others, but Wicks thinks that this area of the law should be reformed, and she turns to this matter in Chapter 8. On this issue, and contrary to many people's intuitions, Wicks believes that encouraging suicide is worse than assisting. She argues that an offence of encouraging suicide should be more strictly enforced, and that there could also be an offence of incitement to suicide. On assistance, she suggests that it should be lawful to assist persons to die when they are autonomous and meet a strong test for capacity, and when they are unable to end their life without assistance due to illness or disability, or when doing so without aid ‘would cause significant suffering’ (197-198, 205). This is a strong claim, as Wicks does not say that terminal illness, or foreseeability of the time of death, must be a requirement to access assistance (169, 196–197). There is also an important ambiguity in interpreting cases where an absence of assistance ‘would cause significant suffering’. Of course, many of the usual ethical concerns apply, such as the risk of a slippery slope, or the risk that certain people might feel pressure to end their life in order to avoid being perceived as a burden on others. Given that many people who need assistance will be disabled, there is a particular risk that this approach, if codified in law, will mark people out into different categories, between those who would qualify for assistance (or who would most obviously qualify), and those who would not. This categorisation could also further suggest that some disabled people should think about choosing to die. More broadly, and in response to the general approach taken in this book, there is also a further point which might be made in relation to the emphasis that Wicks places on capacity and respect for autonomous decision-making. If we accept the suggestion made by Wicks that some suicides are rational, and can be a valuable exercise of autonomy, it seems that this would open the door to the possibility for more moral judgment and blame. It is one thing to say that the state should respect a person's autonomous decision, but it is quite another to think that family members should not make any moral judgment, when a decision was perfectly autonomous. Wicks says that a suicide can be rational even if others do not approve of a person's choice to die, and even if death is not the ‘objectively best solution’ (72), but such a choice might not only represent a suboptimal choice for the individual. It could also be judged as selfish, if it is harmful to others, such as to family members who could feel abandoned, and left behind. For example, while family members might understand in some circumstances that an individual wishes to avoid a further loss of autonomy as they age (72, and as mentioned above), equally they might think that this wish is not as important as their own emotional suffering which they will experience as a result of the person's premature death. Of course, some issues of moral blame go beyond the law, but it might have been helpful, for example, to explain more how a suicide might be rational and yet not a valuable exercise of autonomy in the context of external factors, which might include, for example, insufficient social or medical care, including inadequate pain relief. Much more could be said on these issues, and others, and at times the analysis does seem somewhat curtailed: there is limited engagement with significant recent developments in other jurisdictions on the legalisation of euthanasia, and with the related academic debates following on from them. In particular, an important criticism of traditional autonomy-based approaches can be made by reference to relational conceptions of autonomy, which can emphasise how a person's autonomy should not be assessed in isolation, and that it can be constrained due to social and relational contextual factors. Thus, if people with certain medical conditions suffer prejudice for example, to the extent that it negatively affects their sense of self-worth and they internalise ableist assumptions, or if they cannot access certain forms of support, their decision-making might not be autonomous in a fuller sense. Some recent developments from the Canadian context are strikingly relevant, including in relation to the impact of the availability of assisted dying on disabled people (see for example Jonas-Sébastien Beaudry, ‘Somatic Oppression and Relational Autonomy: Revisiting Medical Aid in Dying Through a Feminist Lens’ (2020) 53 UBC Law Review 241). Wicks does not seem attracted to an approach based on relational autonomy in the case of adults (135), but it is hard to see decisions about suicide as necessarily fully autonomous in light of these concerns. Perhaps Wicks would think that many decisions following on from seemingly ableist assumptions are not in fact autonomous, but it is not clear where the line will be drawn. Nevertheless, it should be said that a full analysis of these issues is not the primary purpose of the book, which is centred on the law with a specific jurisdictional focus. On the theoretical side, we have a good sense of the direction of travel that Wicks would like to take, even if the ultimate destination is not fully in view. The main strength of this book is not in its engagement with some of the main debates on assisted dying (which in any event are well-expanded upon elsewhere), but in its extensive and compelling analysis of the law of England and Wales, through a fascinating review of its historical development, and in detailed examinations of a variety of different contemporary contexts. Even if some suggestions for law reform will need further probing, they are certainly thought-provoking. The main approaches to suicide that have been prioritised, through different periods of time and in a variety of contexts, and for different reasons, are particularly interesting to consider, as are some common assumptions which are brought to light and critiqued. The book is elegantly written, and although relatively short it covers a lot of ground. It is certainly a significant book in its contribution to our understanding of the law in this important and difficult area.

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