The 'assisted dying' safeguards we have seen to date would safeguard no one.
Four years ago a select committee of Parliament reported on a bill that would have legalised what pro-euthanasia campaigners euphemistically call 'assisted dying'. They consulted a wide range of experts on how safe such a law would be.
Most of what the experts said has been ignored by the pro-euthanasia lobby. Here we look at the so-called safeguards that are commended on the website of the pressure group Dignity in Dying (formerly the Voluntary Euthanasia Society) and measure them against what the experts said. The references, unless otherwise indicated, are to House of Lords Report HL 86 (Session 2004-05).
1. 'Terminally ill with six months or less to live'
How accurate is a prognosis of 'six months or less'?
'It is possible to make reasonably accurate prognoses of death within minutes, hours or a few days. When this stretches to months, then the scope for error can extend into years' (Royal College of General Practitioners, HL 86 Vol II, Page 80)
'Prognostication may be better when somebody is within the last two or three weeks of their life. I have to say that, when they are six or eight months away from it, it is actually pretty desperately hopeless' (Professor John Saunders, speaking for the Royal College of Physicians, HL 86 Vol I, Paragraph 118)
'A simple bit of practical evidence is one of the benefit forms that are filled in for patients assigned to a doctor thinking that the patient has six months to live. I would not like to count how many of these forms I have signed in my life for patients still living after a year, eighteen months or even longer' (Dr David Jeffery, speaking for the Association of Palliative Medicine, HL 86 Vol I, Paragraph 119)
And it's perhaps worth adding:
'Post mortem research and clinical audit studies performed in the UK, Europe, USA and many other countries consistently show a c30 per cent error in the medically certified cause of death. Significant errors (ie misdiagnosis of the terminal illness resulting in inappropriate treatment occurs in c5 per cent of cases' (Royal College of Pathologists, HL 86 Vol II, Page 730)
The select committee suggested that any 'assisted dying' bill should define terminal illness 'in such a way as to reflect the realities of clinical practice'. This was ignored in the Lord Joffe's 2005 bill, and there is no indication that it has been taken on board by the pro-euthanasia lobby since Parliament's rejection of that bill in 2006. In fact, if anything, they have now dropped reference to any time-scale at all and advocating 'assisted dying' for the 'terminally ill'.
2. 'Mentally competent'
Surely it's not too difficult to tell whether or not someone is compos mentis?
'With a number of neurological conditions there is a whole issue of cognitive impairment as well. For example, there are patients who to the lay public appear relatively normal but who could have severe cognitive impairments and therefore would be unable to give informed decisions in an area such as this…On the face of it, most of our patients with motor neurone disease are intellectually intact, very much on the ball and able to make decisions. However, we know from research in our own group as well as internationally that about 30 per cent of those patients actually have significant cognitive, neuropsychological impairment and we do not understand how this impinges on the decision process' (Professor Christopher Kennard, speaking for the Association of British Neurologists, HL Paper 86 Vol I, Paragraph 125).
What about depression or other psychological abnormalities?
'There is a significant incidence of moderate to severe depression and anxiety at various stages throughout the course of many diseases. Measurement of these difficulties is problematic, particularly at the end of life, because many of the symptoms of depression are confounded by the symptoms of disease' (Christine Kalus, speaking for the British Psychological Society, HL 86 Vol I, Paragraph 124)
But wouldn't suspected cases of depression be referred for psychiatric evaluation?
That's the theory, but in Oregon, where physician-assisted suicide was legalised in 1997, it is happening in practice – an average of 1 in 10 applicants is referred for evaluation and in the last year for which records are available none was referred. It isn't surprising therefore to learn, from an independent survey published in 2008 in the British Medical Journal, that an estimated one in six of those who have taken their lives in the last 10 years using legally supplied lethal drugs from their doctors were suffering from treatable depression that wasn't detected. The survey concluded that:
'Our findings indicate that the current practice of legalised aid in dying may allow some potentially ineligible patients to receive a prescription for a lethal drug…Our study suggests that in some cases depression is missed or overlooked…The current practice of the Death with Dignity Act may not adequately protect all mentally ill patients' (British Medical Journal 8 October 2008 – BMJ 2008; 337:a1682)
The select committee suggested any 'assisted dying' bill would need to 'take into account the need to identify applicants suffering from psychological or psychiatric disorder as well as a need for mental capacity'. This, to, was ignored in Lord Joffe's 2005 bill.
3. 'Persistent, well-informed, voluntary requests'
How persistent does a request for 'assisted dying' have to be?
In fact, all that has been required in recent 'assisted dying' bills is that the patient should make a request to a physician in writing and wait 14 days. Moreover, the 14-day clock would start ticking when the application had been made, not when it had been approved – so that there would be little, if any, 'cooling off' period. Lord Joffe defended the shortness of the pause with the astonishing statement that:
'if there were so many steps,, the patients will all have died before we get through them' (HL 86-II, Page 49)
Dignity in Dying's website talks of 'a consultation with a palliative care expert to explore alternatives'. Lord Joffe's last 'assisted dying' bill made no reference to exploring alternatives: it simply required an applicant to be told by a palliative care specialist what benefits palliative care could bring if the patient wanted it. Help the Hospices had this to say:
'Experience of pain control is radically different from the promise of pain control, and cessation is almost unimaginable if symptom control has been poor. On this view patients seeking assistance to die without having experienced good symptom control could not be deemed fully informed' (HL 86-I, Paragraph 258)
The select committee suggested that any 'assisted dying' bill 'should consider how patients seeking to end their lives might experience such [palliative] care before taking a final decision'. Also ignored.
What's meant by 'voluntary'?
There are two questions here – is the person concerned acting of his or her own free will and not being coerced? And is the request what the patient really wants or is it a response to internalised pressures – ie pressures within the applicant rather than from others?
All that recent 'assisted dying' bills have required is that each of two doctors – an 'attending' and a 'consulting' physician - must, among other things, have 'satisfied himself that the request is made voluntarily'. This is the only 'safeguard' against external coercion. Whether it would prove effective depends to a large extent on how well the assessing doctors knows the patient. In the words of Dr David Jeffery, commenting on Lord Joffe's 2004 'assisted dying' bill:
'Who is this fantasy 'attending physician'? If you try and register with a general practitioner now, you register with a practice, it is a team approach to care. If you call at night you will get a different doctor, you will not get your own doctor coming to see you. The Bill puts forward this fantasy that somehow a doctor will come who will know you and your family, but this is becoming less and less likely given the pressures of general practice nowadays'. (HL 86-II, Pages 161-162)
However, internalised pressure is much harder to spot as well as being much more common among terminally ill people. Maura Buchanan, then Deputy President of the Royal College of Nursing, drew the select committee's attention to the risk that terminally ill people might feel they should not allow the costs of nursing home care to eat away their children's inheritance:
'It would be easy to succumb to pressure and feel that you had to give up or feel you were a burden, when the family in today's world do not sit at home looking after mother or elderly relatives, because everybody has to work now to keep the mortgage going' (HL 86-I, Paragraph 97)
Baroness Greengross, a supporter of 'assisted dying', accepted that this was a real problem:
'The whole question of being a burden to society as a whole is something that is widespread amongst older people, especially in Northern Europe and North America. It is part of our culture, where a lot of old people say they do not want to be a burden on their families, however loving, and we must accept that is part of our culture' (HL 86-I, Paragraph 97).
4. 'Suffering unbearably'
Who decides what constitutes unbearable suffering?
'With all the safeguards and all the expertise being available, it is that person in the end [the patient] whose view should prevail, because it is about the quality of that person's life' (Baroness Greengross, HL86-I, Paragraph 129)
'It is not an objective test. It is not a test of what the average of all people would consider to be unbearable suffering. It is very clearly defined as a subjective test…It is not what a doctor might say is the norm; it is that particular patient's suffering which is the subject matter of his decision' (Lord Joffe, HL 86-II, Page 49)
So, if it is the applicant for 'assisted dying' who defines what is 'unbearable suffering', how can that be said to be a safeguard? A safeguard, by definition, has to be an objective measure. The select committee recognised this and suggested that a test of 'unrelievable' or 'intractable' suffering would be preferable. This also was ignored.
'Assisted dying' is being urged by lobbyists as a means of enabling a small minority of resolute people to commit suicide rather than die a natural death with the help of modern palliative care. But we have to think of the great majority of terminally ill people who do not want it but who could easily become coherced into 'assisted dying' against their better judgement at a vulnerable stage of their lives. That is what safeguards are all about – protecting vulnerable people rather than giving newly-invented 'rights' to the self-reliant. The 'assisted dying' safeguards we have seen to date would safeguard no one.