Anything but this, any time but now

Why the Assisted Dying Bill should pass and why it may not

Eighty five years ago this autumn and not far from where I am writing this, a doctor called Max Schur killed his patient. The man had been suffering from cancer of the jaw, had had half his palate removed and replaced by a plate which aggravated the necrosis in his mouth causing immense pain. The stench created by the condition was so bad that the patient’s pet dog - upon which he doted - refused to come close to him.

The method was an overdose of morphine administered by injection. Complicit in what in today’s Britain would be a crime, was the patient’s adult daughter, Anna. Shortly before his death her father, eighty-three year old Sigmund Freud, had asked his physician for help in dying. “My dear Schur,” he had said, “you certainly remember our first talk. You promised me then not to forsake me when the time comes. Now it is nothing but torture and makes no sense any more.”

According to our present laws here in United Kingdom Schur and Anna Freud should have refused Freud’s most urgent request, or having granted it would stand the risk of being prosecuted. Anyone opposed on principle to legislating for Assisted Dying must think that such a prohibition would be justified and the threat of prosecution must be right. Anyone in effect opposing any possible bill for any number of reasons must also be prepared for that to continue to be the consequence. Or at least - since the wealthy can organise these affairs for themselves - to be the consequence for ordinary people.

Again in principle, the case for being allowed to seek assistance to die when you are suffering intolerably seems to me unanswerable - unless you have religious objections or a firm ethical belief that a minute of unbearable pain is morally better than dying a minute earlier, and are prepared to inflict that belief on others. Yet over the past weeks I have even heard it argued in effect that it would be the duty of the dying Freud or anyone in os position to remain alive because of the impact that him being helped to die might conceivably have on others. This seems to me an inhuman logic.

The question for me therefore is not whether the law should be changed but how to manage that change. And just to be clear about it, the right exercised by Freud is a real and concrete right and its denial has real and concrete consequences here and now. This has to be emphasised because as this debate has moved from the abstract to the concrete thanks to Kim Leadbeater’s bill, it has been instructive to see how many people have so many different ways of arguing, in effect, that because of possible side effects this right cannot be realised.

The bill

Here’s a reminder of what the bill lays down as being required before an assisted death is authorised. Skip this bit of you knew it already.

1. If a person indicates to a doctor their desire to seek assistance to end their own life, the doctor may ‘conduct a preliminary discussion’ about the requirements.

2. The person must make a ‘first declaration’ stating their intention, with witnesses. 

3. The ‘coordinating doctor’ must soon after conduct a first assessment to confirm the person’s eligibility.

4. There is then a seven-day period of ‘reflection’ beginning once the coordinating doctor has made a statement attesting to the person’s eligibility.

5. The ‘independent doctor’ must then carry out a second assessment as soon as possible after the reflection period, to confirm the findings of the first assessment. 

6. If there’s doubt about the terminal illness, either assessing doctor can refer for assessment by a specialist. 

7. Assessing doctors should advise the person to inform their GP about the request to end their own life.

8. Once the person’s first declaration has been made and the the doctors’ assessments done, the person can apply to the High Court for a ‘declaration that the requirements of this Act have been met’.

9. If the High Court refuses, the person can appeal this decision. 

10. If the High Court approves, a 14-day period of reflection then begins. 

11. After this, the person must make a ‘second declaration’, and the coordinating doctor makes another statement.

12. The coordinating doctor can then provide assistance to end their life by preparing an ‘approved substance’ and providing it ‘directly and in person’.

13. The substance must be self-administered, but the coordinating doctor can prepare a medical device to help do so.

14. The coordinating doctor then makes a ‘final statement’ and this must be recorded ‘as soon as practicable’ in the person’s GP record.

In an earlier post I looked at the progress of the cases here in Britain that may have led Keir Starmer as former DPS to conclude that the law needed changing. His obeying the unwritten rules of what a PM should do when a debate is centred around a “vote-of-conscience” private members bill has deprived the country of his thinking on the subject. That has been a loss.

Not least because, when MPs are required to vote on a step like this, authority is important. I referred in my last post to how the debate can be led off in all kinds of directions, some of them ingenious, in the same way (but on a far larger scale) as a proposal for a traffic calming measure, the building of social housing or a homeless hostel will suddenly attract the inventive objections of opponents. For a new MP in a situation like this the easiest thing to do psychologically may be to kick the decision down the uncalmed road.

Nit picking, Dutch, 17th century

There are genuine problems and genuine risks with a change of policy. It often isn’t fair and in any case doesn’t do any good to impugn the motives of those making arguments on either side. I am against capital punishment in principle and would be even if it could be demonstrated that no innocent person would ever be executed. That hasn't stopped me pointing out (when the subject arises) to enthusiasts for hanging that sometimes a guiltless person has been killed by the state. Most of us tend to reach for whatever plausible contentions comes to hand when we feel strongly.

However that doesn't mean that all arguments are equally valid or equally true. And in the case of this assisted dying debate some of them are either highly speculative or else impossibly pedantic. I have seen some daft arguments made by highly intelligent people. Put together they create the same diversionary effect as the chaff that warplanes throw out to confuse enemy missiles.

Safeguards

By which we mean safeguards against impulsive or coerced decisions being made regarding a procedure that cannot be reversed. Dead is dead and so safeguards are needed. And the safeguards and limitations in this bill have been widely attacked as inadequate. Bear in mind by the way (as so many seem not to) that what we are talking about here in each case is an adult making a decision on their own behalf.

The six month rule

The bill limits access to an assisted death to those with conditions that “can reasonably be expected” to lead to death within six months. This limitation is in itself arbitrary but is designed to prevent people who are not already close to the last stages of life from being helped to end it. I think this is too restrictive (was Freud within six months of death?), but it’s what the bill allows for.

To argue - as some opponents do - that this limit is an inadequate safeguard on the basis that accurate prediction of the moment of death is often impossible, is to argue in bad faith. Yes, there can be variation, but the “reasonable expectation” is that of clinicians who are more likely to be right than the layperson. You cannot “reasonably” ask for more than this. It would be like changing the burden of proof for a court from “beyond all reasonable doubt” to “beyond any conceivable doubt”.

Two doctors

As described above, a request for an assisted death has to be signed off by two doctors, one “co-ordinating” and one “independent”. They are required to satisfy themselves that there is no coercion and that the decision is the settled will of the patient.

So an objection has been raised to this on the basis that doctors have proved fallible in the past and that consequently we can’t trust their judgment. But I doubt whether such objectors refuse life-saving surgery or treatment on the basis of this convenient scepticism. A

One judge

Even so, with the patient still suffering, the bill requires an application to the High Court which in the person of a judge may sign it off or refuse it. If refused there may be an appeal, if accepted there is then another two week delay for “reflection”. By which time, one would imagine, a proportion of applicants may already be dead or beyond following through with the process.

But even here, with a dying person having to jump through all this hoops, objectors argue that judges, like doctors are fallible, so the process is not to be 100% trusted. Once again one wonders why we bother having judges at all.

So what safeguards do you want?

I’ve tried and failed to get any response at all to this question from people objecting to the bill. In so far as any reply at all it is to say that the duty falls upon supporters of assisted dying to find safeguards which meet the objectors’ demands for 100% certainty that no one could possibly have been coerced or persuaded to seek their own deaths or else could have invalid motives for wanting to die.

Asking for this is, of course, tantamount to denying that any bill could ever be passed. Freud must be denied his death and his torture must go on.

Slippery slope 1

The next set of objections warns that what begins as Oregon may well end up in Canada. Oregon’s Death With Dignity Act was first enacted in 1997. It is a close match for the Leadbeater bill, though its safeguards are marginally less restrictive. It has been endorsed several times by voters and has remained largely unchanged in scope since it was first introduced. The latest state report on how the Act was carried out in 2023 is here:

https://www.oregon.gov/oha/ph/providerpartnerresources/evaluationresearch/deathwithdignityact/Documents/year26.pdf

Canada has the most permissive euthanasia regime in the world, and has expanded in scope since first introduced in 2016 following a court case known as Carter v. Canada. A further legal ruling in 2019 stated that the provisions from 2016 were unconstitutionally restrictive. Most euthanasia horror stories (some of questionable accuracy, others straightforwardly worrying) concern Canada. Even so public support for Canada’s system runs at over 80% and, among the over 55s, reaches nearly 90%.

Here in the UK no court precedent establishes a right to die. This bill proceeds from no legal or constitutional demand and will be entirely the work of the elected parliament. Consequently any slip down the slope would almost certainly have to be the result of further parliamentary legislation, which itself would be likely to require public support. So this version of the slippery slope objection is an objection to what future elected legislators might decide, mandated by future electorates. And, as Oregon suggests. there is no inevitability about this at all.

Slippery slope 2

The first slippery slope is a perfectly good argument in the mouths of those who oppose assisted dying on moral or religious grounds: future electorates can be morally wrong. But for those who purport to oppose this particular bill on practical grounds, it is an inadequate one. Why should their objections tie elected parliaments in perpetuity?

So we get slippery slope 2: the spectre of future liberalisation forced upon us by external courts and most insidious, by the European Court of Human Rights (ECHR). The charge on this has been led by an assistant professor in law at Robinson College, Cambridge, Philip Murray. Murray argues that:

Once it is recognised that the suffering and alleged loss of dignity experienced by terminally ill adults justifies the legalisation of assisted suicide, refusing to extend this to people who are not terminally ill but who nonetheless experience acute suffering will require the clearest justification under article 14. It cannot be argued that the lives of such people are more worthy of protection than the terminally ill.

Note the “alleged” here. Murray is quietly suggesting that terminally ill patients who consider loss of dignity to be one reason for wanting to terminate their lives, may be misperceiving their own situation. We can only hope he never finds himself in a position to test that notion.

Murray’s argument is entirely speculative. As the Equal Rights Commission reminds citizens in its recent report on AD:

The European Court of Human Rights has never decided that assisted dying laws violate ECHR rights, nor that ECHR rights confer a ‘right to die’. The court has repeatedly noted that there is no clear consensus between member states and that it is a matter for individual Parliaments to consider. We agree that ECHR rights neither confer a right to assisted dying nor prohibit it.

Murray is suggesting that the passage of this one bill in the UK (when so many other European countries have already passed and enacted AD legislation), might somehow tip the ECHR into intervening where it has never intervened before. And this is because, Murray argues, “none of the European countries with assisted suicide laws is as ostensibly restrictive as the Leadbeater bill seems likely to be.”

You can see that Murray is straining towards his case: that the ECHR, which has refused to intervene so far to help those wishing to be allowed to die by assisted suicide, would now get involved after that right has been granted under certain circumstances, in order to allow many more people to access AD. This runs against common sense. You might by the same token expect the court to demand that the UK prevent citizens accessing AD in Switzerland on the basis that Dignitas discriminates against people without £15000 and the capacity to travel.

Ah, but just in case people realise how improbably such a ruling is, Murray raises the bar yet further, adding that “ no supporter of these proposals can guarantee their immunity from post-legislative expansion following a successful challenge under the ECHR.”

“Vanishingly unlikely” won’t reassure him. a 100% guarantee is all that will do. This is NOT an argument in good faith.

Anyway, Palliative care

The Telegraph reported the EHRC in the document referred to above as objecting to the bill on the grounds that “regional variability [in the provision of palliative care] could put some people in a position where they consider assisted dying where they may not otherwise have done so if there was a viable alternative to alleviate suffering and end their life in dignity” and that this might represent a breach of their rights.

The clear implication here is that until we have proper and full national access to palliative care (in what form, the EHRC does not stipulate, this being as far as I could establish their one and only reference to palliative care in any of their publications) then any AD provision would be illegitimate in that it might discriminate against people who would otherwise seek such care.

This is entirely speculative. In Oregon 87% of those choosing AD did indeed have access to palliative care and it should be said that palliative care is not some kind of inoculation against suffering. But insofar as decent end-of-life care is both desirable and currently inadequate, let us provide more of it as a matter of urgency. The idea of telling people they have to endure terrible suffering until we have sorted enough good palliative care for everyone who might need it - and then almost certainly not providing it - is repugnant. We’ll come on to how that feeds into the cost argument in a moment, after quoting a paragraph from the EHRC report that was not covered in the Telegraph, viz:

We also note with interest the Health and Social Care Committee’s findings that there were no indications of a deterioration in the quality of palliative or end-of-life care linked to assisted dying in other jurisdictions. In some instances, it was linked to improvements in care. An example of this is in Austria, where legislation was enacted alongside measures to protect the rights of citizens (such as additional funding for palliative care) and a requirement that one of the doctors required to sign-off on assisted dying requests is an expert in palliative medicine.

The obvious answer is for objectors on this basis to campaign hard for extra palliative care provision. So have they?

Inexpensive justice, German renaissance style

How much will it cost?

I am an admirer of the Health Secretary, Wes Streeting. He is a man of faith and I am not and that shouldn't matter. But his argument that AD should be opposed in part because it might cost the NHS money and resources was, I think, disgraceful. It was an argument amplified by Sonia Sodha of the Observer in a post on X this week. She wrote:

There’s a strange degree of exceptionalism re assisted dying. Yes it’s a conscience vote but it’s not a uniquely moral question: imagine if politicians didn’t take cost into account as suggested when thinking about another moral issue, ending child poverty.

This is pure weasel. No one is in favour of child poverty. That debate is almost entirely about cost. Rather, imagine politicians DID take cost into account when deliberating on the abolition of capital punishment or the legalisation of abortion. How would those discussions run? If you were to have capital punishment with limited right of appeal think of the prison money you could save! But if you build in lots of safeguards against wrongful execution and therefore lots of delays and lawyer time, might it not become very expensive?

Or abortion, whose availability I believe Sodha supports. Would it have been a clinching argument against giving women that right that the cost of abortion provision (214,000 in 2021, 87% medically induced) might be so much higher than the cost of treating women with sepsis contracted as result of backstreet abortions or of treating and educating the children who might otherwise be born? We both know the answer.

And of course, would such a costing include vastly improved palliative care services? Or would we suddenly cease to worry about that?

Much the same logic attaches to the lamentation that there has been no “impact assessment” should the Leadbeater bill pass.

There are various other arguments that have been raised by opponents of the bill, but time and space precludes dealing with them all. Some are just based on a determined misreading of available statistics from places like Oregon. One common one is that fear of being a burden to family is mentioned as a motivation for seeking AD by 43% of those who seek to die. What is always left out is that this is the fourth most often cited reason, far behind loss of autonomy, loss of dignity and pain.

This is by no means the first commons vote on AD in the last decade. In 2015 a second reading was denied to a private members bill by 330 votes to 115. I do not recall any of the arguments I have dealt with above being widely raised (or raised at all) at the time. Presumably because that bill was expected to fail. This time, however, opponents have thrown the kitchen sink at the argument in the hope, I would think, that nervous MPs - already worried about breaking through a psychological barrier surrounding authorised death - will be battered into opposition or abstention.

If that happens it will delay this reform for another few years until the aging population (older people are more likely to favour AD for blindingly obvious reasons) can no longer tolerate this interference into their most basic rights to physical autonomy. My guess is that that bill, when it passes, will be less restrictive than that Leadbeater’s.

Maybe the answer would be a Citizen’s Assembly or a Commission which can convince even the most antsy MP that the fullest consultation has taken place. In the meantime when someone comes to us and says something like:

…our answer will be “tough”. Or “go to Switzerland”.