The Proposed Change to the Law on Assisted Dying: Light at the end of the tunnel?
Despite not being the cheeriest of topics for a bleak, cold January, death has already been on the legal and cultural radar this year. January saw the culmination of the work of the Commission on Assisted Dying, set up in 2010 and chaired by the former Lord Chancellor, Charles Falconer. The report recommends a change in the law which would give terminally ill, mentally-competent people the right to end their lives with the assistance of two independent doctors.
At the same time, the Southbank centre decided to host a weekend festival celebrating life through exploring death, with a series of workshops and debates focusing on issues such as death in the digital era, death rituals from around the world and how the First World War changed our perceptions of death forever. Considering the findings of the Commission, it seemed appropriate that as part of the weekend’s events, time would be dedicated to engaging with the public in whether a change in the law to allow assisted dying should be given the green light. It’s important to note at this stage that a change in the law would only allow those with a terminal illness, who were of sound mental competence to die; this debate was not about involuntary euthanasia, minors or the mentally incapacitated. In front of an auditorium packed to the rafters, with some even sitting on the floor such was the popularity of the event, the ever charismatic and buoyant Jon Snow chaired a debate between two groups of people with deeply opposed opinions. Human rights barrister Helena Kennedy QC, chair of the organisation ‘Dignity and Dying’ Professor Phillip Green, and Debbie Purdy, whose legal case led to new guidelines over assisted dying, proposed a change in the law. Opposing a change was Dr Kevin Fitzpatrick of ‘Not Dead Yet’ and Peter Saunders of the ‘Care not Killing’ alliance who put forward the case for keeping the current law as it stands.
An early show of hands suggested that the topic left many people unsure as to whether they agreed to a change in the law, and it seemed from a second show of hands that the audience’s concern was not moral reasoning, but practical issues relating to public safety. Currently the law states under the Suicide Act 1961 that it is legal to commit suicide, but under section 2(1) someone who assists a person in ending their life can be prosecuted in England and Wales, with a maximum sentence of 14 years.
The debate, limited to an hour, was obviously only able to touch on some of the issues surrounding such a complex issue. However the speakers each brought to the table the issues they felt to be the most important in winning their case. Kennedy eruditely opened the debate to talk about the issue from a human rights perspective, arguing that Article 2 of the ECHR, the ‘right to life’, can be interpreted to include within it the right to die. Other arguments can be added to Kennedy’s premise to give it credibility and are often adopted by proponents of euthanasia; for example, that Article 2 could be interpreted to mean not just the right to exist, but the right to a certain quality of life, which might be limited for someone with a particularly agonising or debilitating condition. Equally it could be argued that a right to life does not mean there is a duty to exercise that right, and as such there is no obligation to live. Some may also argue that the process of dying is a part of life, possibly one of the most important events of a person’s life, and thus the decision to terminate it belongs within the realms of Article 2. There are also arguments that other rights protected by the ECHR already assume the right to die, such as the right to privacy and the right to freedom of belief. However, this is rather tenuous. As it was expressed correctly by Jonathan Crow, acting for the government in the Diane Pretty case; “A philosopher might say that death is the corollary to life, but the lawyer must answer that the right to die is the antithesis of the right to life.”
Professor Philip Green examined a different argument; the unequitable nature of the current law. He believes it is wrong that wealthy patients have the luxury of paying to go to Switzerland to end their life, whilst poor, immobile patients are denied this. This creates a two-tier system where the rich can opt out of the law, and the poor, who are already more limited in the healthcare options they can select, are unable to choose the nature of their death. Green was also keen to reiterate that his organisation, ‘Dignity and Dying’, campaigned for the right to end a life with assistance only in the last six months or year of the person’s life. But Snow intervened at this point to draw attention to the controversy surrounding the Libyan al-Megrahi, who was diagnosed with only six months to live, suggesting there could be a problem trying to pin-point with accuracy when someone would die. Green retorted easily that that particular prognosis had been erroneous, and that in most cases people died earlier than the prognosis given.
Green also pointed out that there are places in the world that already allow assisted dyings, such as the states of Oregon and Washington, (although the drugs used to assist a patient’s death in these states cost money, suggesting that the process in these places is far from universally available). These states remain firmly opposed to assisted suicides and euthanasia – a key distinction that needs to be repeated in this debate, as a change in the law would only ever affect terminally-ill, mentally competent adults (unlike the Netherlands, where the euthanasia of chronically ill children is legal). Debbie Purdy’s argument corroborated much of what Green argued, stating that she had lost the physical ability to travel to Switzerland without assistance. She also drew most convincingly on the comparisons made with Oregon and Washington, claiming that case-studies showed that many patients who had been administered the drugs to terminate their lives actually never took them. Just by knowing they had the option to end their life gave them piece of mind which was far more likely to induce them to carry on living for a bit longer. This brought the debate back to focus on that most complex and controversial of phrases; ‘quality of life’ – Purdy arguing in this case that the peace of mind of simply knowing the drug was available gave terminally-ill patients a better quality of life, and quite possibly could be argued as belonging under Article 2, if Article 2 is interpreted as the right to a good quality of life, rather than simply the right to exist.
The concern over the integrity of doctors who would assist the death of patients was inevitably one of the main concerns that the three proponents had to dispel. Kennedy and Green actually disputed the extent to which medical circles favoured a change in the law. Green criticised the ‘paternalistic attitudes’ that doctors are prone to adopt whenever faced with a change in the laws that affect the human condition, such as the legalisation of abortion, which initially was predicted to radically alter the way patients viewed their doctors. The doctor-patient relationship is obviously crucial in this sensitive area, but, as has been pointed out by a variety of people, both in this debate and in the evidence given to the Commission, the 1967 Abortion Act did not polarise the medical community, and is now a largely accepted, tolerated procedure. Green was keen to point out that doctors would not be obliged to assist the deaths of their patients, just as doctors are under no obligation to carry out abortions, and conscientiously objecting to the procedure would remain an option for them. This prevents the alienation of the medical profession, as they are not forced to engage in procedures they feel uncomfortable with. There remains a concern that they may be placed above the law, and if the law was changed in favour of assisted dying, and a majority of doctors opposed it, it may adversely affect the rights of those terminally-ill patients. Similarly, concerns were raised some years ago that many young doctors were opting out of abortion procedure training, not as conscientious objectors, but because it was considered unglamorous. Some senior doctors blamed it on what was dubbed ‘dinner party syndrome’, whereby doctors did not want to have to tell friends and relatives that they performed abortions. It may be the case that many in the medical profession would oppose a change in the law for a myriad of reasons, and the opposition were keen to highlight that many in the medical profession do, such as the British Medical Association and the Royal College of Physicians.
Turning to those opposed to a change in the law, the arguments challenged the ones that had gone before as well as entering the debate into new territory. Kevin Fitzpatrick of ‘Not Dead Yet’ began by disputing Kennedy’s assertion of a right to die, stating that there could not be one, as ultimately we all die and therefore it is an inevitable occurrence, not a right. However Fitzpatrick rather missed the point: it is already perfectly legal to commit suicide in this country, and therefore to some degree there is already a recognised right to die. The debate in most people’s minds centres on having the dignity and freedom to choose the time and nature of your death, rather than there simply being a right to die.
Fitzpatrick highlighted the nebulous phrase ‘quality of life’, and pointed out that Dignitas had controversially assisted the death of someone with a non-terminal illness. The patient suffered from arthritis and was concerned about the decline in her condition. Whilst a change in the law in this country would not allow someone with a non-terminal illness such as arthritis to have an assisted death, it was a controversial case, and lent credibility to the ‘slippery slope’ theory that once the door was opened to assisted dyings in some cases, it could soon spread to include non-terminal and mental illnesses too.
He also drew attention to the economic context, concerned about ‘sustained attacks on welfare’ highlighted by the recent protests by disabled people over the government’s plans. Indeed, changes to the disability living allowance have meant drastic changes in living standards for many disabled people, some losing home visits from care assistants. Fitzpatrick’s argument was that if it gets increasingly harder for them to support themselves, or afford care assistants, they will be forced to go into hospital care, where they may feel pressure to end their lives. This argument fails to recognise that a change in the law would not allow non-terminally ill disabled patients to end their life with assistance, but does shed light on ‘Not Dead Yet’s assertion that a change in the law would still make disabled people feel their lives were of little value and that they would increasingly feel a burden to state and society. ‘Not Dead Yet’ also claims on its website that the distinction between a terminal illness and a disability is a ‘myth’, and definitions of terminal illness are never precise (perhaps corroborated by Snow’s earlier comment about al-Megrahi). The website makes the valid point that people with Multiple Sclerosis are disabled people yet are often viewed as the main beneficiaries of a change in the law.
Peter Saunders of ‘Care not Killing’ underlined much of what Fitzpatrick said, basing his argument on two main reasons; that a change in the law would be both dangerous and unnecessary. He argued that if there was enough proper care given to terminally ill patients, the change in the law would not be necessary, as he claimed that suicidal cries are more often the result of a lack of emotional and medical care than a real urge to end a life. However, the Commission’s advice that there should be a settled intention to die (i.e a minimum of two weeks from request to assisted death) might dispel this fear.
By the end of the debate, another show of hands demonstrated that the proponents for a change in the law had well and truly transformed a crowd of initially uncertain minds into an audience that supported an individual’s right to end their life. A cynical mind might point out that Debbie Purdy’s presence and her own personal and emotional testimony won many round to the right for her husband to end her life with no fear of prosecution if she desired it. However, the opponents’ arguments were compelling, warning that a change in the law could put pressure on people to end their lives, and that the law could be extended to include non-terminally ill patients. Whilst the two opponents rightly urged for there to be better palliative care for the terminally-ill, their assertion that this alone would mollify those who wished to end their lives seemed simplistic and slightly patronising. Ultimately the topic’s complexity lies in the need to acknowledge the rights of terminally-ill patients whilst ensuring safeguards can be put in place to protect the vulnerable. With the findings of the Commission now complete, it will be for Parliament to decide whether to initiate a change in the law.