This article appears in the May 2004 edition of the Catholic Medical Quarterly
Editorial - Assisted Dying for the Terminally Ill Bill.
As the House of Lords has authorised the setting up of a Select Committee to consider the Bill it was agreed that there was no purpose in taking up time on a lengthy Second Reading that would largely be a repetition of the lengthy debate of 6th June last year. However, a spirited examination is forecast in Committee. In essence it appears to be a cleverly drafted attempt at legalising Physician Assisted Suicide introduced by Lord Joffe.
It seems to follow from a modernising agenda so prevalent in certain political circles nowadays that has been described by Lord Tebbit as an agenda 'grown from the rotting corpse of the 1960's permissiveness that infected a once stable and law abiding society'.
Having achieved considerable success in the promotion of abortion it now appears to be concentrating on a tidying-up operation at the other end of life. It is a virtual reproduction of Bills introduced into other legislatures but has a remarkable resemblance to the Death with Dignity Act passed in Oregon in 1997. Oregon is the only state in the USA in which physician assisted suicide is legal despite the fact that the Supreme Court in that country has declared this practice unconstitutional.
The protagonists of the Bill point out that those who oppose it lack compassion and such an imputation of moral failure render in one's opponents renders any debate unhelpful.
One of the great difficulties in legislation in this are is the definition of 'terminal illness' In the Bill it is defined as;
'an incurable and physical illness which the consulting physician has determined as being likely to result in the patient's death within six months of the date when he confirmed the prognosis of the attending physician'
No doctor will make a commitment to the time of death nowadays, but will rather indicate whether any curative treatment is likely to succeed. It has already proved impossible in the Netherlands and in the struck down Northern Territories Act in Australia) to make sense of phrases like 'terminal, though not necessarily imminently so' As one wit confronted with this definition defined life as 'a sexually transmitted terminal illness'
In practice the Dutch and Australians had to abandon any restriction to the notoriously ambiguous idea of 'terminal illness' and focus on 'distress' But it has been said if we focus on 'distress' to whom is it understandable? Is it the attending physician, the consulting physician, the social worker, or if desirable the psychiatrist ? This suggests a medicalisation even greater than we already have in health care. Why should three doctors know what is tolerable for a person? If this legislation is passed would a refusal by a doctor to authorise death really stand up in court?
The other main argument in support for the Bill is the virtue of compassion, which really in this instance is being used as a euphemism for autonomy. We are generally told nowadays that what makes us special as human beings is our ability to plan our lives through formulating goals. 'Choice' is the current rallying cry. Divorced from moral theory it underpins the kind of competitive individualism to which we have become accustomed in recent decades. On the contrary, we are told by the moral theologians that choices are to be made in the context of a community of mutually respectful moral agents. A shared universal series of norms by which we direct our lives in society. This is well illustrated by the attached summary of the BMA's views when it states the Bill;
'would also weaken society's prohibition on intentional killing and could weaken safeguards against non-voluntary euthanasia of people who are both seriously ill and mentally impaired'.
The Bill makes no reference to Articles 2 and 3 of the European convention on Human Rights and like the draft Mental Incapacity Bill prefers what is known as the best interest test.
Article 2.1 ECHR provides thus:
Everyone's right to life shall be protected by law. No one shall be deprived of life intentionally''
The Strasbourg Court in Osman v. United Kingdom stated that:
The first sentence of Article 2 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. It is common ground that the State's obligation in this respect extends beyond its primary duty to secure the right to life'.'
Article 3 ECHR provides:
No one shall be subjected to torture or to inhuman or degrading treatment and punishment.'
The concept of best interests is, at least primarily, relevant to human autonomy as opposed to best interests. The best interest test is formulated upon a balance sheet approach that produces a net result, rather than a formulation that is in line with Articles 2 and 3.
It is to be hoped that parliament will reverse the view that the proper interpretation of Article 2 that the State has only a secondary obligation to protect life but an individual can chose not to uphold that right. The latter view is part of the government's response to the draft Mental Incapacity Bill.