As the Assisted Dying Bill is due to be discussed in the Commons today, Ian Brassington asks if we are taking the right approach.
When Rob Marris’ Assisted Dying Bill is discussed in the Commons, it will be the latest in a number of attempts to make some form of assistance in dying legal in Britain. Whether the law actually will be changed is by no means certain: previous Bills brought before Parliament or the Scottish Parliament have either run out of time, or been rejected outright. A fairly new House of Commons might prove to be differently minded from its predecessors – but, then again, it might not. What is more clear is that the academic debate about assisted dying has more or less ground to a halt: neither ethicists nor lawyers arguing either for or against a change in the law has come up with any new strategy for a while now; in some sense, the argument has shifted to the courtroom and debating chamber (as my colleague Alex Mullock has discussed both on this blog, and on the Journal of Medical Ethics’ blog).
The main concern that proponents of a change in the law would have to allay is that the legalisation of assisted dying would increase the danger to vulnerable people. Might it not be the case that they would be liable to coercion, and would be more likely to “choose” a death that they did not really want? This worry is significant, and must be addressed by any plausible law that seeks to allow assisted dying.
However, the Bills that have been considered in the UK actually have a pretty good record on that front. For one thing, they have dealt with only one form of assisted dying – that is, assisted suicide. None of them would allow Smith to kill Jones; rather, they make provision for Smith to provide to Jones the means to kill himself. This does not remove the concern entirely – Jones might still be under Brown’s nefarious influence – but it does attenuate it.
It is also important to remember that this is not the whole story. Marris’ Bill has a number of safeguards built into it. Assistance cannot be provided by just anyone, to just anyone: under the terms of §4(3), it is only specific medical personnel who are allowed to provide it, and only to terminally ill patients. (For my money, there is no overwhelming moral reason in principle why assistance should be restricted to the terminally ill; but the restriction is defensible, and it makes sense in terms of maximising the chance that the Bill would pass.) There is a statutory “cooling off” period between a patient’s declaration that she would like assistance taking effect, and assistance actually being administered (provided by §4(2)(c). Perhaps most importantly, §1(1) stipulates that assistance may only be provided with the consent of the High Court. In other words, getting assistance will not be easy: there are barriers deliberately placed in the way, and these are designed to ensure that only those who really want assistance will be prescribed the drugs to take their own life.
Of course, there will always be a risk that people may be pressured into ending their own lives; but this exists anyway, inasmuch as that people under the current legal dispensation may be coerced to refuse life-saving or life-preserving treatment. This is no small matter; the question for lawmakers may then be characterised as one of whether the public interest lies in facilitating genuine desires to die in the light of that risk, or taking every possible opportunity to limit the risk in the face of a genuine desire to die. If the latter option is chosen, would that be compatible with allowing people to refuse life-preserving treatment, though?
The other thing that is worth noting is that the Bill does not give anyone an entitlement to assistance. A request has to be approved; and even if it is approved, there is a conscience clause (§5 of the Bill) that means that medical staff have a right not to provide assistance to die. Maybe none would provide it. In short, patients would have a hard time requiring anyone to provide assistance. For that reason, though concerns have been expressed that hospices may be forced to provide assistance in dying even when it is against their policy, the worry may be overplayed. Having said that, it may improve the Bill – and increase its chances of passing – to include a clause clarifying that neither medics nor organisations are under any obligation to provide assistance in dying.
Yet even here there is a potential problem: there may be patients who genuinely want assistance in dying, but whose local hospice has a policy against it. Now, there is a conscience clause in respect of abortion that means that a doctor has a right to refuse to provide abortion services to a woman; but in that case, she has a right and the ability to see another doctor who does not object. A patient in a hospice does not have that luxury. This may be the price we have to pay for maintaining medical conscience rights; but it does seem perplexing all the same.
