Why the backers of assisted dying keep coming back

Lord Falconer’s Assisted Dying Bill had its First Reading in the House of Lords last week, and its second is expected on or close to 18 July. The Bill aims to change the law in order “to enable competent adults who are terminally ill to be provided at their request with specified assistance to end their own life.” It is the fourth attempt to legalise assisted suicide in Britain in the past decade; in 2006, 2009 and 2010, similar bills were rejected by Parliament – mostly on grounds of  public safety rather than ethics.

This Falconer Bill is no less flawed than its predecessors. If passed, it would endanger vulnerable individuals with terminal illness, erode their right to good medical care, and undermine the ethos of the medical profession.

The existing law

The 1961 Suicide Act carries penalties of up to 14 years’ imprisonment for assisting in a suicide. The Commission on Assisted Dying, the body (chaired by Lord Falconer, and funded by the novelist Terry Pratchett) behind the Bill, claims that current law is “inadequate, incoherent and should not continue”. Yet the law has been under scrutiny many times and has undergone many modifications; the Crown Prosecution Service is very clear on which factors are relevant for prosecution in cases of assisting suicide for a chronically or terminally ill individual.

After the 2009 Debbie Purdy case, in which a woman with primary progressive multiple sclerosis sought clarification on how the Suicide Act would be enforced if her husband helped her to take her own life, the Director of Public Prosecutions (DPP) issued guidelines on when, and when not, to prosecute such cases.

It laid out six factors that would mitigate against a decision to prosecute, including “a voluntary, clear, settled and informed decision” on the part of the victim, and evidence that the suspect had been “wholly motivated by compassion”.

But if the suspect is a doctor or nurse, their professional status will be treated as an aggravating factor. This is in line with the 2010 submission made by the Royal College of Physicians to the DPP, which stated that: “Our duty of care is to work with patients to mitigate and overcome their clinical difficulties and suffering… The trust afforded doctors and nurses in particular gives their views considerable weight with their patients and the public. Clinicians’ duties of care entail active pursuit of alternative solutions to assisted suicide, not its facilitation.”

The law retains a firm prohibition against encouraging and assisting someone to commit suicide, while still providing for discretion on the part of prosecutors in individual cases. In doing so, it provides vulnerable people a strong protection from exploitation and harm, while sensibly acknowledging that the rare cases in which the law is flouted solely out of compassion pose no threat to public safety.

Indeed, no British citizen who has helped a relative travel to the Dignitas clinic has ever been prosecuted. As Lord Alex Carlile QC puts it, it is “a hard law, with a kind face”. The desire to change it, in other words, cannot spring from a realistic fear that a kindly relative who helps a suffering person to die would ever face prosecution from the law.

Who supports the Bill?

Lord Falconer’s Commission on Assisted Dying includes advocates of assisted suicide from various fields. It was set up after two independent Parliamentary Select Committees examined the issue and concluded that the law should not be changed. In 2012, the Commission published evidence which claimed there was, in fact, a strong case for an assisted suicide law.

The Commission’s call for evidence submissions was boycotted by around 40 leading medical, ethical, and disability rights organisations due to bias in the Commission’s remit and composition. These included the Association for Palliative Medicine, the Royal Society of Medicine, the Equalities and Human Rights Commission, the Royal Colleges of Nursing, Physicians and Psychiatrists and the British Medical Association, which in June 2011 overwhelmingly passed a motion disputing the Commission’s claim to impartiality and independence. They rightly saw it as a lobby that was seeking to introduce euthanasia by stealth.

The medical professionals on the Commission’s panel are outliers. This agreed positions of the main doctors’ bodies are all firmly against. The Association of Palliative Medicine says it is morally and clinically unacceptable for a doctor to assist a person in committing suicide; the Royal College of GPs says that, as of February 2014, 77 per cent of its members oppose the legalization of assisted dying; while the British Medical Association opposes all forms of assisted dying and “supports the current legal framework, which allows compassionate and ethical care for the dying”.

In advocating a change in the law, the Commission ignores the judgement of two independent Parliamentary scrutiny committees and the opinion of the medical profession, who have well-founded concerns about the ramifications this law would have for public safety and clinical practice.

Inadequate Safeguards

The moral issue of assisted suicide cannot be ignored. We need to expose the fallacy of the premise that life loses value the closer it is to death, or the radically individualist idea that “dignity in dying” requires the exercise of control over the time and manner of our death. True dignity lies in recognizing our need of help, and receiving it – comfort, pain relief, security, peace, and so on. That has implications for what kind of a society we want to be. We need a debate about dying, about what kind of changes we need in order to guarantee compassion and respect, as well as palliative and other kinds of care.

But the debate about changing the law in this instance inevitably centers on the public safety issue — the effect on society of changing the law, above all on vulnerable people. The reason why previous attempts such as the 2006 Assisted Dying for the Terminally Ill Bill have not passed is because Parliament concluded they would undermine the legal protections due to vulnerable members of society. The Falconer Bill is no different.

The Bill states that in order to be eligible for assisted suicide, a person must have a prognosis of six months or less to live, a “clear and settled intent” to end their life and the mental capacity to make such a decision. But it does not offer any guidelines on how to assess whether or not these eligibility criteria have been met, claiming instead that guidelines will be included in codes of practice drawn up after the law has been approved.

A report analysing the Falconer Bill’s safeguards, compiled by a group of peers with expertise in the fields of medicine and disability rights for the research organisation Living and Dying Well, judged this to be “woefully inadequate” from a public safety perspective.

“It is not unusual for detailed protocols and procedures of legislation to be left to subsequent codes of practice,” they write. “But mental capacity, clear and settled intent and freedom of coercion are not details but fundamentals – critical and integral aspects of any proposal to license doctors to end lives.”

More recently Baroness Hollins, Emeritus Professor of Psychiatry of Disability at St George’s University of London (and coincidentally a member of Pope Francis’s new commission on sexual abuse) has written about the difficulties of assessing mental capacity and the high cost of error.

When doctors assess capacity, they do it to protect their patient from harm, not to clear the way for them to commit suicide. If they make a mistake, the mistake is on the side of patient protection. Licensing doctors to supply lethal drugs to some of their patients would be an extremely worrying development because, if you look at what has happened in the small number of other countries that have legalised assisted suicide, there have been mistakes.

The fact that the Bill does not stipulate referral for psychiatric assessment in order to rule out judgement-impairing mental conditions is particularly concerning in light of evidence from the US state of Oregon, where assisted suicide was legalised in 1998: a 2008 British Medical Journal paper concluded that Oregon’s assisted dying law “may not be adequately protecting mentally ill patients” after it found evidence that cases of clinical depression and anxiety had gone undiagnosed by assessing doctors.

Every law has its flaws, of course, and is susceptible to misapplication. But with assisted dying laws, misapplication costs lives. The Falconer Bill’s safeguards are a poor attempt to remove elements of risk from a legal innovation that is inherently risky, one that is open to manipulation and fails to protect vulnerable individuals.

Effect on Medicine

Allowing doctors to end patients’ lives in certain circumstances, thus undermining their right to life and to best medical care, would represent a major change not only to the criminal law but also to clinical practice. That’s why associations of doctors and other health professionals oppose a change in the law: it is impossible to rule out coercion; and any law that puts the doctor in a position of being asked to help kill their patient would have a chilling effect on doctor-patient relationships.

This is the main reason why the Royal College of GPs says the majority of its members oppose a change in the law. GPs know that, in practice, they are the ones who would be asked to enable their patients to kill themselves, and it is not a burden they believe should be placed on a profession whose task is to heal not harm. People wanting to end their lives would find few GPs who had no ethical objections to assisting them in taking their lives, and who also had sufficient knowledge of the patients involved to know if they met the Bill’s criteria.

This has been a problem in Oregon, where the median length of the doctor-patient relationship for those who died through assisted suicide between 1998 and 2009 was ten weeks, and in many cases was no more than two or three weeks. How can a knowledgeable assessment of a patient’s mental state and intention – one that can rule out impairments to the patient’s judgement or evidence of coercion – be made in such a short time?

The Bill’s requirement that the individual seeking assisted suicide must have a terminal prognosis of six months or less also assumes that this, too, is an exact science. Yet expert medical evidence given to Parliament in recent years shows that guessing how long someone has to live is extremely unreliable.

Reliable prognoses tend to be those made within a time-frame of days or hours, not weeks or months. Evidence heard by the Select Committee examining the 2006 Assisted Dying for the Terminally Ill Bill proposed by Lord Joffe made clear the difficulty of making the kind of prognoses required for licensing an assisted suicide. The Royal College of GPs, for example, told the committee that when estimates are being made for people living for a matter of months “the scope for error can extend into years.” The Bill’s requirement for accurate medium-term prognosis is clinically unworkable, and would certainly lead to individuals seeking to end their lives on the basis of inaccurate information.

A matter of choice?

Supporters of assisted suicide, whether high-profile figures or ordinary members of the public, advance their case on grounds of personal choice and autonomy. They say people who have a good reason for ending their lives should have the freedom to do so, and that the exercise of this freedom is what gives them dignity in dying.

Yet the Bill does not attempt to provide for assisted death for all of the small minority of terminally and chronically ill people who request it, for it recognises how dangerous this would be. Instead, it makes an attempt, through its widely-criticised safeguards, to prescribe which terminally ill individuals will and will not be considered for assisted death.

The Bill’s mental capacity and self-administration criteria would rule out, for instance, the late Tony Nicklinson or the novelist campaigner Sir Terry Pratchett, well-known advocates of assisted death. For Mr Nicklinson, to have his life ended would have required alterations not to the law on suicide, but to the law on murder, while the need for a terminal prognosis would rule out those, like Debbie Purdy, with chronic but not fatal conditions such as multiple sclerosis.

This Bill would offer no extra legal assistance to large numbers of the small minority of chronically or terminally ill individuals who are determined to end their own lives, whose relatives are already offered protection from prosecution by existing DPP guidelines.

But it would change the law in a way that endangers vulnerable individuals who need the support, care and encouragement necessary to live fulfilling and dignified lives with terminal illness.

Baroness Campbell, former head of the Equality and Human Rights Commission, wrote last year that, “The existing law on assisted suicide rests on a natural frontier. It rests on the principle that we do not involve ourselves in deliberately bringing about the deaths of other people. What the proponents of ‘assisted dying’ want is to replace that clear and bright line with an arbitrary and permeable one.” Recently, she said Falconer’s proposals sent a shiver down her spine.

Falconer’s purpose

Why does Lord Falconer keep returning to Parliament with a Bill that would change the law for a very few? Because if it became law it would cross the line signaled by Baroness Cambpell: it would secure the state’s backing for the concept that it is in some people’s best interests to die. No longer would there be a  healthcare system committed to recognising the value and dignity of every individual right up until the end of their life. Belgium, which recently approved the euthanasia of children, is what lies down the road. The logic of assisted suicide leads inexorably in that direction.

The debate over assisted dying is not a debate abut compassion versus cruelty, or choice versus coercion. It’s a debate over whether the law should consider each individual as equally deserving of life, and whether those who are terminally ill should expect the same rights and protections under the law as everybody else. Falconer’s bill torpedoes that principle, and must continue to be resisted.

[Megan Hodder]