Published on September 12th, 2012 | by Alex Rickets0
Should assisted dying be legalised?
Two and a half weeks on from the death of Tony Nicklinson, and in an unexpected twist to David Cameron’s government reshuffle, the hugely difficult issue of assisted dying has found its way back into the headlines. Incoming Health Minister Anna Soubry MP, in a straight-talking interview with The Times, has voiced her opinion that there may be a case for reforming the law: “I think it’s ridiculous and appalling that people have to go abroad to end their life instead of being able to end their life at home”. Soubry, however, did not so far as to advocate doctor-assisted euthanasia (as campaigned for by Mr Nicklinson): “You can’t say to a doctor or nurse, ‘Kill this person’ but … you have a right to kill yourself”. Her Liberal Democrat colleague Norman Lamb, Care Services Minister, reacted by suggesting that there was a “strong case” for reform. What should we make of this hugely emotive issue?
Tony Nicklinson had fought for his right for doctors to legally end his life, losing in the High Court last month. Predictably, judges hearing his case did not feel able to make such a massive change to the law, insisting that if deemed necessary this was a job for Parliament. Subsequently Mr Nicklinson refused food and passed away on August 22 after contracting pneumonia. Soubry’s words reflect the belief that assisted suicide should be legalised whereas doctor-assisted euthanasia should not be protected by law under any circumstances. The perceived distinction between the two is subtle: assisted suicide involves the patient being in ultimate ‘control’ of the process, i.e. performing the act of suicide after having been provided the means for carrying out the action. Doctor-assisted euthanasia, meanwhile, involves an individual ‘directly’ causing the death of another, the motive being to protect the patient from further suffering. Is Soubry’s position, advocating the legalisation of assisted suicide within the privacy of one’s own home, tenable?
The important point to make is that Soubry’s argument reflects a sort of false moral justification that goes to the heart of the way our legal system deals with this issue. Soubry evidently thinks that suicide and assisted suicide are synonymous: “You can’t say to a doctor or nurse, ‘Kill this person’ but … you have a right to kill yourself”. In other words, assisted dying is justified because it reflects an individual’s right to determine their own existence, rather than being ‘assisted’ (i.e. involving an outside influence) in a substantive sense at all. Euthanasia, meanwhile, involves a direct causative action on the part of another person: this is wrong because individuals should not legally be able to end the lives of others. Herein lies the moral distinction our Health Minister obviously believes in.
This belief, however, does not hold up to scrutiny. Assisted suicide is so-called for a reason: the individual, for whatever horrible reason, is unable to end their life without outside help. The means of death is prepared by another person: without this there would be no death at all. It surely cannot be said that there is a meaningful distinction to be made here with euthanasia: in both cases death is caused by another. The ‘right’ to end one’s own life is a separate issue, out of bounds to those with crippling disabilities.
In this way there is a false moral justification inherent in Soubry’s words, namely that assisted dying is legitimised by individual liberty considerations (the “right to kill yourself”) whereas euthanasia is not. The current position of the law with regard to both can be summarised like this: assisted suicide is a criminal offence, punishable by up to 14 years’ imprisonment, while what is to all intents and purposes doctor-assisted euthanasia is currently permitted in certain situations. The legal position of the latter, too, is characterised by false morally-rooted arguments, resulting in deserving patients like Tony Nicklinson being unable to ask doctors to lawfully end their suffering.
The law, essentially, states that doctors may discontinue life-sustaining treatment for a comatose patient, thus ‘indirectly’ causing death, when they have successfully applied to the courts for a declaration stating that the continuation of treatment would not be in the patient’s best interests. This comes from the House of Lords case of Airedale NHS Trust v Bland, concerning a patient who had been in a PVS condition (persistent vegetative state) for more than two years following serious injuries sustained during the Hillsborough football disaster. The House was clear, on the other hand, that ‘It was never lawful to take active steps to cause or accelerate death’, for example by administering lethal drugs. Here a similar falsehood arises: ‘active’ procedures causing death are never justified (and will constitute murder) whereas passive actions are permitted under certain circumstances. Surely both amount to steps directly causing death?
The strained logic is understandable, explained by the huge difficulties posed by this issue. Many people, certainly conservative-minded figures in the judiciary, are uncomfortable with the notion of doctors effectively ‘playing God’. Having said this, there are perceived to be certain cases in which policy reasons dictate that a patient’s life should be ended. In the case of Bland, for example, there was unanimous agreement that the concerned patient would never regain consciousness, and therefore (impliedly) that his continued existence would have been an unnecessary strain on the state. The result of these two conflicting positions is an uneasy contradiction: a forced distinction between ‘active’ and ‘passive’ steps causing death, enabling judges to outwardly maintain the moralistic stance that doctors should never be able to ‘play God’, whilst keeping the door open for individual exceptions to this ‘rule’.
The effect of the overall legal position on patients like Tony Nicklinson is bizarre. Nicklinson, despite being sufficiently sound of mind to make the decision for himself and despite longing for an end to his awful suffering, could not have been killed by doctors. If he had been in a PVS state, however, it is possible that doctors could have put an end to his life in his ‘best interests’, regardless of whether he would have wanted this to happen. He would have been in a better position to gain his wish had he not been in a state to consciously express the wish at all. A potential counter-argument is that the distinction is validated because comatose patients have no quality of life, but you’d be hard pressed to argue that Nicklinson did.
An examination, then, of the moralistic arguments underpinning our law reveals that the distinctions are untenable. There should not be a crucial legal difference between killing a patient by withdrawing food, and killing a patient by administering a lethal injection. Neither should assisted suicide and euthanasia be perceived to be fundamentally different. The unfair result of these arbitrary beliefs is that deserving patients, such as Nicklinson, are prevented from having their suffering ended because of conservative horrors at doctors ‘playing God’, despite the fact that effectively they can already do this. If doctors can legally end the life of someone who has no say in the matter, they should be able to end the life of someone who is desperate to be put out of their misery. It is unjustifiable that we as human beings cannot be in complete control of our own destinies: the right to life should extend to the right to death at the hands of another.
Practical anti-euthanasia and assisted suicide arguments insist that these issues cannot be regulated, and in this sense Soubry’s position is misguided: the legalisation of assisted suicide within the privacy of one’s own home would be disastrous precisely because it would place the practice outside the realm of regulation. With so much of society’s violence occurring within the home this would be a slippery slope indeed, affording a defence to attackers which would be difficult to rebut. This is not to say, however, that assisted dying cannot be regulated: I would be in favour of a UK equivalent of the Swiss Dignitas organisation, which helps those with severe illnesses to die assisted by qualified doctors and nurses. By keeping the practice within the control of experienced physicians there should be no question of systemic abuse. Admittedly it would be difficult to determine in an individual case whether a patient had been pressurised or coerced into having their life ended, but this should not be a determining factor in the argument. The criminal law already deals with comparable issues across the board of offences: to doubt its ability to arrive at just outcomes would be to call into question the effectiveness and worth of our entire criminal legal system.
In the end, civil liberties considerations outweigh all opposing arguments. Irrespective of the fact that he passed away a few days after the verdict, it was sad that Tony Nicklinson was unable to achieve his objective of a change in the law. He was unable to do so because of the view that doctors should not be able to end the lives of patients. In reality they can already do this: the argument is therefore, in my opinion, unsustainable.
Assisted dying can be regulated: I see no reason here to distinguish between assisted suicide and euthanasia because there is no meaningful difference. Permitting hospitals and special clinics to carry out these actions would not give rise to the difficulties alleged by conservatives. In this respect Anna Soubry’s views are, with respect, short-sighted: allowing non-professionals to end the lives of others would create these problems, and as such the Health Minister’s suggestions should not be taken seriously. I strongly believe, however, that there is a clear distinction to be made here with specialist institutions, which should be able to help suffering people end their lives (subject of course to stringent background checks).
For a sign of future challenges confronting progressives in this area, look no further than Conservative MP Mark Pritchard’s reaction to Soubry’s interview. There would be an “almighty parliamentary row” if assisted suicide laws were re-examined, Pritchard warned. Putting aside the bizarre implication that something should not be debated in Parliament purely because of its contentious nature, this represents a powerful snapshot of opposition to the idea. Pritchard clearly warns against the perceived pitfalls: “This is a slippery slope, which incrementally and over time, will reduce the ‘right to life’”.
The courts are determined to leave any reform to Parliament, and MPs are hostile: a difficult situation indeed. Far from ‘reducing’ the right to life, surely the ability to determine one’s own existence is a key constituent of this liberty? The argument against legalising assisted dying is open to focused scrutiny, to put it lightly: that patients like Tony Nicklinson are denied their rights and forced to continue suffering all in the name of a legal falsehood amounts to a grave miscarriage of justice. Doctors can already kill patients and society has hardly fallen apart as a result: refusing to accept this reality, and widen the class of accepted medical behaviour, even in the face of compassion and freedom is unjustifiable. It is bizarre that individual liberties in respect of so many aspects of life are now vigorously defended, yet the right to end one’s life is accepted only by a small minority. A truly progressive society needs to recognise the case for assisted dying and trust its citizens to control their own lives.