Assisted Dying

Reflections on the Need for Law Reform

Sheila McLean

• Publisher: Routledge-Cavendish
• Year: 2007
• ISBN:
  9781135393069
• Edition: 1
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

Assisted Dying explores the law relating to euthanasia and assisted suicide, tracing its development from prohibition through to the laissez faire attitude adopted in a number of countries in the 21 st Century. This book provides an in-depth critique of the arguments surrounding legislative control of such practices and particularly looks into the regulatory role of the state. In the classical tradition of libertarianism, the state is generally presumed to have a remit to intervene where an individual's actions threaten another, rather than harm the individuals themselves. This arguably leaves a question mark over the state's determined intervention, in the UK and elsewhere, into the private and highly personal choices of individuals to die rather than live. The perceived role of the state in safeguarding the moral values of the community and the need for third party involvement in assisted suicide and euthanasia could be thought to raise these practices to a different level. These considerations may be in direct conflict with the so called right to die espoused by some individuals and groups within the community. However this book will argue that the state's interests are and should be second to the interests that the people themselves have in choosing their own death.

Assisted Dying is winner of the The Minty Prize of the Society of Authors, and winner of the Royal Society of Medicine Book Awards, 2008

Chapter 1

An outline of the debate

‘Dying woman seeks backing to hasten death’¹

This is just one of the seemingly endless headlines concerning UK citizens who want to obtain an assisted death at a time of their own choosing and irrespective of the views of others. As Donnison and Bryson noted,

until recently, people have usually seemed content to leave decisions about death and dying to doctors. In the last few years, however, death and the medical decisions bearing upon it have rarely been out of the headlines or off the television screens for long.²

While the law in the United Kingdom stands resolutely (for the moment at least) against facilitating requests for assisted dying, individuals continue to resist and even ignore it, arguing that this is a matter of personal conscience. Some even travel overseas (usually to Switzerland) to achieve the death they so desire. Of course, these people are a relatively small minority; most people die ‘naturally’, albeit sometimes with medical assistance (within the terms of the law). Nonetheless, we cannot dismiss the importance of this debate simply because for the moment so few people try to circumvent the law. Not only does this tell us nothing about how many people might choose an assisted death were it legally available to them, but numbers are not measures of morality.

The subject of assisted dying is one which generates considerable controversy because ‘it arouses questions about the morality of killing, the effectiveness of consent, the duties of physicians, and equity in the distribution of resources. . . .’.³ Volumes have been written arguing both for and against legalisation, yet those engaged in the argument seem unable to convince the opposing side of the value or rightness of their position or even to imagine a way of accommodating the other position. Feelings, and ideological commitments, run deep and drive different conclusions. As Kuhse says:

People who approach ethics from different moral, cultural or religious perspectives will often arrive at different answers to morally controversial questions. These answers have their source in particular value systems and can therefore not be shown to be true or false, in the ordinary sense of those terms.⁴

This is undoubtedly true and makes resolution of the problem that is the assisted dying debate exceptionally difficult. Yet the debate will continue. At most, each side in the debate can hope to influence or persuade those whose ethical position lies somewhere between the two extremes. Thomasma, for example, suggests that since

. . . philosophical arguments for and against physician aid in dying line up rather equally on either side. . . . Philosophical analysis alone seems unable to tap these deeper concerns well enough, or articulate them well enough, to be persuasive enough to win one side to another.⁵

Thus, negotiating a path between the various sides in this debate is essentially deeply problematic. The bases from which arguments begin often seem miles apart and those who hold to certain views tend to be intransigent about them. Both opponents and proponents of legalised assisted dying, however, share one primary characteristic; that is they both ‘assume that there is an objective standard in morality, while disagreeing on what the ultimate standard of that morality might be’.⁶

Not only are the arguments complex, but the antagonists in this discussion also cannot be categorised simplistically. While many people who hold firmly to a religious faith might be expected to oppose legalisation of assisted dying, this will not universally be true. Equally, there will be some people with no faith who also oppose it. In the recently published British Social Attitudes Survey, for example, it was found that

. . . how often someone attends a religious service proves to be the single most important variable in our analysis. It may be that a high level of attendance reflects a prior commitment to a faith and acceptance of its approach to issues of life and death.⁷

However, the authors also noted that

even though we have taken into account a respondent’s religious background, a belief in the sanctity of life is still independently associated with attitudes to dying. Those who oppose suicide, capital punishment and abortion are all significantly more likely to oppose assisted dying.⁸

Ideologies other than faith can also affect attitudes to assisted dying. For example, it has been argued that social and political considerations can have a profound impact on people’s views about the kind of event that an assisted death actually is. If seen as a threat to the social order it may lead those who can be described as ‘more “communitarian” in outlook’ to oppose legalisation because support for assisted dying is seen as ‘atomistic in its philosophy, an affirmation of individual moral freedom in a world lacking moral absolutes’.⁹ It would be a mistake, then, to think that we can easily presume to describe and categorise the kinds of people who will and will not support assisted dying or that their attitudes can be easily typecast even if we can identify some common characteristics. We must avoid, therefore, making simplistic assumptions about the kind of debate in which we are engaged.

The factors which underpin people’s opinions in this area are important and will likely be crucial to any resolution of the debate. Laws are made, after all, by people, and while recent opinion evidence suggests that around 80 per cent of those sampled in the United Kingdom would support assisted dying where a person was suffering from an incurable, painful and terminal illness, this support reduced when different variations were presented to them.¹⁰ For example, the percentage in favour of assisted dying was lowered to 33 per cent when the person suffered from an incurable and painful illness which was not terminal.¹¹ The British Social Attitudes Survey research reinforces findings from an earlier US study which concluded that ‘. . . poll numbers in the United States are deceptive. Americans endorse a generalized and abstract right to die, but when pollsters ask questions relating to specific medical situations, public support declines’.¹² Thus, even positions adopted in favour (or against) a particular proposition are more nuanced than is often reported or recognised.

Assisted dying introduced

There can be few matters more sensitive and challenging than those which concern the deliberate and knowing ending of another person’s life, whether by providing them with the means to commit suicide (generally referred to as assisted suicide) or by actively taking steps to end it on their request (voluntary euthanasia). In 1994, the House of Lords Select Committee on Medical Ethics stated:

That prohibition [of intentional killing] is the cornerstone of law and of social relationships. It protects each of us impartially, embodying the belief that all are equal. . . . We acknowledge that there are individual cases in which euthanasia may be seen by some to be appropriate. But individual cases cannot reasonably establish the foundation of a policy which would have such serious and widespread repercussions.¹³

On the other hand, Woodman points to the actual experience of many modern deaths as a reason for seeking control over one’s own death, saying:

. . . it is not surprising that so many of us fear being rushed into an intensive care ward, placed on life-support equipment, and made to linger in a state of semiexistence against our will. This particular fear seems to have grown in direct proportion to our physicians’ abilities to perform these life-prolonging feats. The very measures that we once viewed as miracles of modern medicine can now be seen in a more critical light. Now we know that machines designed to prolong life can sometimes do nothing more than prolong the dying process. Many who once considered death too unpalatable to contemplate are beginning to realise that living can be worse than dying. As a result, more and more suffering people are asking their physicians to help them die, not keep them alive.¹⁴

What Illich calls ‘cultural iatrogenisis’,¹⁵ results, he claims in ‘intransitive activities’, such as dying and suffering, being ‘claimed by technocracy as new areas of policy-making and . . . treated as malfunctions from which populations ought to be institutionally relieved’.¹⁶ Thus, we are controlled by, rather than in control of, the ways in which we manage important markers in our lives, including our deaths. Despite what the House of Lords said about the importance of prohibiting killing, and while many would accept their position entirely when it comes to the involuntary or unwanted taking of life, the principle to which they appeal has less resonance when the decision is taken by the individual him or her self. We may also question just what are the ‘serious and widespread repercussions’ to which the House of Lords refers. While the undesirable consequences of not outlawing the random and non-consensual taking of a life are self-evident, it is moot whether these same (or similar) consequences would flow from respecting a competent choice for assistance to bring about the end of one’s own life. Although apparently comfortable with eliding the two scenarios, the House of Lords surely errs in doing so. For example, we can reasonably approve of voluntary sterilisation while at the same time entirely disapprove of non-consensual sterilisation. Although the outcome in this example is less serious, the important characteristic of the two examples is that they are rendered neutral, or at least not objectionable, by the willing involvement of the individual him or her self in the choice.

People’s desire to control their lives extends, for some at least, to control of their deaths. At the same time, we are dying in different ways. No longer is life ‘nasty, brutish and short’. People can expect to live for longer than their three score years and ten, and may well die from diseases related to the natural break-down of the human body. Battin believes that it is because we ‘now typically die late in life of deteriorative disease’¹⁷ that we are so exercised about the way in which we die. The extent to which our desire to gain control over our dying is permitted in law will – at least for those who wish to have such a choice available – affect not only how we die, but also how we live.

This book is primarily concerned with the choices of competent people; competent in terms of legal status and capacity. However, it is not possible entirely to omit consideration of others such as children, people in a permanent vegetative state and so on, since these situations provide an interesting comparative model. Accordingly, some time will be devoted in what follows to those whose deaths are brought about without their direct authority.

The arguments for and against legalisation will take up much of what follows in this book. For the moment, the complexities of this area and the sensitivities surrounding the debate make it necessary to define the terms of this enquiry. For convenience, and as will become clear for philosophical reasons, throughout this book I will use the term ‘assisted dying’ to encapsulate events which might otherwise be described as either (physician) assisted suicide or voluntary euthanasia. Where a difference needs to be noted between these two this will be highlighted, but – although mechanically they differ – at the heart of each of them is the positive choice for death. It is decision-making control, or choice, that drives each of them, so that – although they are given effect to differently – they are facets of the same decision and will be supported or refuted by essentially the same arguments.

The current law in the UK

That said, there are some legal differences which merit brief consideration here. In common with most – but not all – legal systems throughout the world, commitment to upholding and reinforcing the sanctity of human life, whose importance is not in dispute, means that the United Kingdom currently outlaws the deliberate killing of another person (except in very limited situations), although suicide is not in itself a crime. Killing is covered by the law of murder, or in some situations the law of manslaughter or culpable homicide,¹⁸ and ‘[t]he criminal law does not recognise euthanasia as a special category of homicide’.¹⁹ Throughout the United Kingdom an act of voluntary euthanasia would be criminalised by common law. In other words, either a murder or a manslaughter/culpable homicide charge would be competent where someone deliberately takes the life of another even with that person’s consent. Consent is irrelevant to the criminal law except in crimes such as rape where consent (or rather its absence) is an essential component of the crime itself.

In terms of assisted suicide, in Scotland the rules are derived from the common law in which suicide was probably never a crime. Although there is little doubt that a person assisting a suicide would be guilty of a criminal offence, either murder or culpable homicide (most probably the latter), Mason and Laurie note that ‘it is difficult to imagine a common law offence of aiding an act which is not, itself, a crime’.²⁰ In England and Wales, however, there is a specific legislative prohibition on assisted suicide contained in the Suicide Act 1961.²¹ This piece of legislation decriminalised suicide, but specifically created the crime of assisting in suicide; doubtless, a direct attempt to reinforce the sanctity of life doctrine. While prosecuting a failed suicide was perhaps seen as serving little, if any, social purpose, there may have seemed to be reasons for prosecuting those who help someone else to die.

The sanctity of life principle works to prevent the unauthorised or unwanted removal of life, and is breached permissibly only in certain situations, such as acts of self-defence, in war or in states where judicial killing is permitted. In the past, its tenets were also imposed on those who took their own lives, as we have seen, but this is now legally irrelevant. What is critical is the idea that people should have their lives protected, as they are, for example, by the terms of Article 2 of the European Convention on Human Rights, which was incorporated into UK law by the passing of the Human Rights Act 1998 and which states:

1 Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

It is obvious, therefore, that the modern statement of sanctity of life at least in this international statement is subject to ...