A look at the potential impact on society...
There is a tendency to see the legalisation of physician assisted suicide (PAS) solely in terms of individual rights and to ignore the impact of such a radical change in the law on society, including both the health care system and the community as a whole. The impact on clinical practice is important. It is, after all, doctors who are being asked to do the assisting with suicide. Moreover, the health service belongs to all of us and anything that damages it puts us all at risk. This aide memoire addresses PAS specifically, but the same considerations apply to the legalisation of direct action by a doctor to end a patient's life (ie euthanasia).
The debate about PAS has been conducted entirely against an assumption that, if the practice were to be legalised, it would become part of our health care system. All the bills we have seen to date envisage a process of assessment of applicants and prescription of lethal drugs by doctors. This is one of the major tensions within the debate. The great majority of doctors are opposed to what is being euphemistically called 'assisted dying' and all the Medical Royal Colleges and the British Medical Association have, after consultation with their members, declared their opposition to it. The General Medical Council put it starkly four years ago in evidence to a House of Lords select committee examining Lord Joffe's second 'assisted dying' bill:
A change in the law to allow physician-assisted suicide would have profound implications for the role and responsibilities of doctors and their relationships with patients. Acting with the primary intention to hasten a patient's death would be difficult to reconcile with the medical ethical principles of beneficence and non-maleficence. (House of Lords Paper 86-I (Session 2004-05), Paragraph 108)
Pro-euthanasia campaigners tell us that, in countries where 'assisted dying' has been legalised, doctor-patient relationships have not been harmed – meaning that people continue to trust their doctors. But that really isn't the point. Patients have no alternative but to trust the doctors they have. The point is that, when PAS is legitimised as an integral part of health care, it acquires an aura of clinical respectability. We all of us assume, of necessity, that the advice we receive from our doctors and the treatments they administer to us will be those considered to be in our best interests, whether we feel they are or not. It is but a short step from there to the notion that, if my doctor is prepared to prescribe a lethal overdose for me, he must regard that as an appropriate form of treatment for my medical condition and he must feel that taking my own life is preferable for me as a patient to dying naturally. In other words, PAS is being placed within the comfort zone of a social service (the health care system) which patients trust and which they assume, rightly under the legal status quo in Britain, is geared to protecting their interests.
The pro-euthanasia lobby would argue, of course, that PAS would protect the interests of patients who requested it because it would do no more than give them what they wanted. But is this concept of a simple customer-supplier relationship between doctor and patient a road down which we should be travelling? Most people would recognise that the practice of medicine is different from those of, say, selling cars or houses. It involves the placing by a patient of complete trust in a doctor to provide impartial – and sometimes unwelcome - advice and treatment in order to restore the patient to health or to deal with painful or otherwise distressing symptoms of an incurable illness. In other words, to go back to the GMC, it involves “principles of beneficence and non-maleficence”. That includes, on occasions, refusing to do things that the patient wants – for example, prescribing antibiotics which aren't needed or which could, if prescribed, contribute to a degradation of antibiotic resistance in the community, or declining to carry out surgery which is either dangerous to the patient or futile as a form of treatment. Legalising PAS within the health care system, simply on the basis that it is what the patient says he wants, would represent a significant step away from the beneficence principle and towards the plain commercial one of the piper calling the tune.
PAS would also risk undermining the development of specialist palliative care, in which Britain is a world leader. 'Assisted dying' provides a bolthole for lazy doctors. Yet it is the need to go the extra mile in relieving intractable symptoms that has led to some of the most significant breakthroughs in palliative medicine. It is, perhaps, no coincidence that those countries which have legalised 'assisted dying' – Holland, Belgium and the US State of Oregon – have relatively poor records in this field. In Britain, by contrast, palliative care has been a recognised clinical specialty (like, for example, oncology or paediatrics) since 1987. We have, in addition to large numbers of in-patient and out-patient hospices, specialist palliative care departments in most major hospitals. One comment from a Dutch doctor, in evidence to the House of Lords select committee referred to above, is worth quoting in this context. Accepting that euthanasia might possibly be justified “in certain exceptional situations”, he concluded:
I would rather die in a country where euthanasia is forbidden but where doctors do know how to look after a dying patient in a humane manner than I would in a country where palliative medicine is ignored but euthanasia can be easily arranged. (House of Lords Paper 86-III (Session 2005-06), Page 55)
Of course, pro-euthanasia campaigners rarely mention Holland these days. They prefer to cite Oregon as an example of palliative care improving following the legalisation of PAS in 1997. Yes, it has improved but not post hoc ergo propter hoc: palliative care has improved in most countries over the last 10 years and, in any case, Oregon was starting from a relatively low baseline. The key point, however, is that the terms 'palliative care' and 'hospice' do not mean the same thing in Oregon as they do in this country. Oregon does not have in-patient specialist palliative care beds or the intensive four-year palliative care training programme that we have in Britain. To many Oregon hospice doctors palliative care is little more than a personal and part-time interest. It is largely limited to end-of-life care, whereas in Britain it is a specialty applicable to chronic as well as terminal illness. Comparisons between the two systems are not therefore meaningful and we cannot predict what might happen to specialist palliative care in British medicine under a PAS regime simply by looking at what has happened to its less developed equivalent in Oregon.
Whether or not assistance with suicide should be legalised is largely a matter of personal and social values. But to legalise it as a therapeutic option within health care (physician-assisted suicide)) carries with it the potential for damage to the ethics and standards of clinical practice and, therefore, ultimately to patients themselves. The pro-euthanasia lobby undoubtedly believes that the link with health care is important as a means of commending an otherwise unpalatable proposal to Parliament and the public. They also suggest that it would be unfeeling to require dying people to commit suicide without the support of their trusted doctors. It is hard to believe, however, that the few terminally-ill people who are really serious about committing suicide would be deterred by having to use legalised procedures outside the health care system to obtain their prescription drugs. On the other hand, many more terminally-ill people (see next section) who are less resolute but who toy with the idea could well be encouraged to go through with taking their own lives by the comforting illusion that PAS is a proper health care procedure. If we want to maintain the integrity of medicine and limit the practice of assisted suicide to the seriously determined and resolute, we need to ensure that it is kept separate from health care.
However, it is not only to the health care system that legalised assisted suicide would bring problems. Society as a whole would be affected. Suicide was decriminalised in 1961, meaning that criminal charges are no longer brought against those who attempt it. This undoubtedly humane measure reflected a perception on the part of society that anyone who attempts to take his or her own life is suffering enough, in one way or another, and should not to have to face criminal charges as well. But it remains illegal to aid and abet a suicide. Here, again, the law is reflecting a perception by society that, while those who attempt to take their own lives should be treated compassionately, suicide itself is a tragic and negative act which should not be encouraged. As a result, considerable efforts are taken to prevent suicides, especially under circumstances (eg in prisons and mental institutions) where individuals are seen to be at risk of such action, and to frustrate them (eg by resuscitation) where they occur.
And yet against this social background we are being urged by some to facilitate suicide for certain categories of people, in particular the terminally ill. How can these attitudes be squared with those of society towards suicide in general? The proponents of a change in the law argue that they want such facilities only for people who are, in their words, 'suffering unbearably' and who are going to die soon anyway. But where does this leave people who are not terminally ill but are nonetheless suffering unbearably – for example, because they have been imprisoned for life or have lost a child in horrendous circumstances or are suffering from an illness which is highly distressing (for example, multiple sclerosis, or heart or lung disease) but chronic rather than terminal? Such people face the prospect of having to bear their suffering for years rather than weeks or months. How could society justify keeping the one group of sufferers alive while facilitating the deaths of the other? Change the law for the one group, and there is no defensible reason why it should not be changed for the other also.
Few people would disagree with this view of suicide in society. But some might suggest that there could be extreme circumstances under which it might be acceptable to help someone to end his or her life - for example, someone who is dying of a particularly horrendous illness, whose thought processes are demonstrably lucid, whose judgement is not being distorted by transient depression, who has expressed a sincere and persistent wish for help to die and who is not arguing for such help simply on grounds of personal autonomy? In practice, such cases are extremely rare, especially if good palliative care is being administered. But the practical question remains: how could we allow assistance with suicide in such cases without the risk of its unintended migration into the terminally- and chronically-ill population more widely. Here we come to the so-called slippery slope, whose existence the proponents of a change in the law deny.
One of the main reasons for this denial is a tendency on the part of pro-euthanasia campaigners to assume that the attitudes of the highly resolute people whom they represent are typical of the population of terminally-ill people as a whole. This isn't so! There are indeed terminally-ill people, though not many of them, who are very clear that they want to 'end it all' and to have complete control over the time and manner of their deaths; and there are also those, at the other end of the spectrum, who are absolutely resolved that that is not what they want. But those who work, day in and day out, with the dying know that in between these two extremes the majority of people who have a terminal prognosis are highly vulnerable and ambivalent, some more than others. Many of them go through periods of transient depression and some of them toy with thoughts of 'ending it all' – and then think better of it. Under the law as it stands, vulnerable people in this situation are protected: euthanasia and PAS are illegal and are not, therefore, on offer. But, if the law were to be changed, this protection would be removed. As one witness, a palliative care physician with wide experience of caring for terminally-ill people, put it to the 2004-05 select committee: “some patients, while not opting for ending their lives, would feel themselves to be presented, if the law were to be changed, with an ongoing choice to be made” (House of Lords Paper 86-I (Session 2004-05), Paragraph 97). While removing a legal prohibition might suit a small minority of dying people, it would expose much larger numbers to the risk of opting for something about which they were less than resolute in their minds but which they might embrace for other undisclosed reasons, such as a desire to remove themselves as a care or financial burden on their families. None of the so-called safeguards which have been presented to date would be anywhere near robust enough to prevent such cases getting through the net.
Another way of looking at this was described recently by the Bishop of Exeter in the course of a House of Lords debate on a 'charter' published by “Dignity in Dying” (formerly the Voluntary Euthanasia Society) which had advocated, among other things, a 'right to have an assisted death' based on 'the principles of choice and control at the end of life'. The Bishop observed that, while many people, including most Parliamentarians, “are used to shaping our lives through the autonomous choices we make”, it was important not to make the mistake of regarding this situation as typical of everyone. He called on fellow Peers “to reflect on the many people in the world and in this country whose experience of life is much more about being done unto, sometimes by those closest to them, and whose experience of professionals is not of jolly good folk, like you and me, but of remote, aloof and often faceless people who make decisions which may not immediately appear to reflect the client's own interests.” The Bishop continued: “People who have not led assertive lives, exercising their own choices, have often internalised the notion that others know best and end up valuing their own lives too cheaply. Are we to offer them the ultimate opportunity to give way to the will of those around them?” His conclusion was this: “let us be very wary of a charter that imagines all human beings to be like us - confident, articulate and used to choosing the direction of our lives. For many others, choice is not always a promise - it can feel like a threat” (House of Lords Hansard, 18 November 2008, Column GC82).
Similarly, there is a noticeable failure on the part of the pro-euthanasia movement to understand that the real world of clinical practice is often very different from the somewhat idealised world which 'assisted dying' bills seem to envisage. These latter assume the existence of a world in which doctors know all their patients well and have limitless time at their disposal to assess whether they meet all the criteria for being prescribed suicide drugs. This comforting picture of the 'family doctor' is, however, far removed from the busy, multi-partner urban general practice or the hard-pressed acute hospital ward. Some of the judgements doctors would be expected to make – for example, on freedom from treatable depression or from internalised pressures - lie outside their clinical competence. Recent evidence from Oregon suggests that as many as one in six patients who take their own lives with lethal drugs from their doctors are suffering from treatable depression which has not been picked up. Even within the doctor's field of expertise, diagnosis and prognosis are far from being exact sciences. The Royal College of Pathologists told the select committee that “significant errors (ie misdiagnosis of terminal illness resulting in inappropriate treatment) occur in about five percent of cases” (House of Lords Paper 86-II (Session 2004-05), Page 730). These 'assisted dying' bills are simply not real-world-proofed.
By contrast, the law as its stands is alive to the practicalities of the real world while at the same time recognising the need in certain cases for compassion. Though the penalty, on conviction, for aiding and abetting a suicide is often said to be 14 years imprisonment, that is a maximum figure. Because of the deterrent effect of the law, not many cases come before the courts; and those that do are often the 'hard cases' of the kind we have described above, and they are dealt with by the courts according to their circumstances. Yet, when charges are not brought or when lenient sentences are handed out in distressing cases, this is described publicly by pro-euthanasia campaigners as evidence that “the law isn't working”. In fact, the law is working is exactly as it should: it is using a stern face to deter widespread resort to assisted suicide and a kind heart to deal with the few 'hard cases' that do occur. As the old saying has it, if it ain't broke, don't fix it!
But, we are told, the law is out of step with public opinion as four out of five people regularly tell the pollsters they would favour a change in the law to allow 'assisted dying'. The polls may well be accurate, but they can mislead. It probably is the case that firm opposition to legalised 'assisted dying' comes from a minority. But it does not follow from that that there is firm support from a majority. When asked to agree or disagree with statements along the lines that 'dying people who are suffering unbearably should have the right to medical assistance to end their lives', affirmative answers are likely to be obtained not only from convinced advocates of legalised euthanasia but also from people who have little knowledge of the subject and/or no strong feelings about it but who see no apparent problem with giving 'rights' to specific groups of people which seem on the face of it not to involve collateral harm for others. The plain fact is that 'assisted dying', like restoring capital punishment, banning immigration or leaving the European Union, is a highly complex issue on which, nonetheless, it is relatively easy to obtain knee-jerk reactions via opinion polls. This is not to impugn the professional integrity of the pollsters, but simply to recognise the nature of the subject. Almost certainly, a fair proportion of the affirmative replies in such polls come from respondents who would be prepared to acquiesce in, rather than actively support, a change in the law. For what it is worth, the House of Lords select committee received nearly 15,000 letters and emails on the legalisation of 'assisted dying' from members of the public. The results of this postbag suggested that support and opposition were about evenly balanced.
This note has sought to explain the dangers of legalised PAS for society as distinct from the individual. In truth, the dangers are almost entirely of a social rather than an individual nature, while the advantages of legalisation are the reverse – they focus on the wishes of small numbers of individuals rather than on the interests of terminally ill people as a whole.
Sound law-making is about balancing the rights of the individual against those of the community. So, for example, while some people might feel safer if they were allowed to carry personal weapons, the law does not allow that on the grounds that the end result would be more dangerous for all of us. In assessing the balance in this case between the strongly-held wishes of a few determined individuals and the risks of collateral harm to larger numbers of terminally-ill people, we need to bear in mind that in Britain we have very high-quality palliative care services, unlike many countries around the world, and that the law as its stands already contains the necessary flexibility to deal compassionately with genuinely hard cases, while at the same time deterring widespread abuse and punishing such abuse where it occurs. The pro-euthanasia lobby is vocal in deploring investigations or prosecutions of assisted suicide. These are, however, literally life-or-death situations with the potential for serious collateral harm to others. As the journalist Peter Hitchens remarked recently, “those who say they believe they were right, either to assist a suicide or perform a mercy killing, shouldn't object to having to explain themselves to a jury” (The Mail on Sunday 27 October 2008).
The intentions of those who are campaigning to have the law changed are not in question: they are undoubtedly acting out of a concern for what they see as the best interests of a small section of society. But Parliament has to take the wider view and to remember that the essential purpose of laws is to protect the weak and vulnerable. Their interests must not be put at risk, especially in such a crucial area of public safety, in order to provide a facility for a determined few.