'Assisted dying?' Three Objections

The proposal to set up a Working Party to make recommendations for the development of a legal regime for 'assisted dying' in Guernsey should be rejected, for three reasons.

Unnecessary

First, why is there a need for such a Working Party? The case for legalisation has been exhaustively examined by the UK Parliament on several occasions, and repeatedly rejected.

The proposal is also vague: 'assisted dying' is little more than a euphemism that muddies important distinctions, not only that between helping patients to die naturally and medical killing, but also between administering lethal injections to competent patients (‘voluntary euthanasia’ or VE) and giving them lethal prescriptions (‘physician-assisted suicide’ or PAS).

Discriminatory

Second, the proposal states that an 'assisted dying' regime should not take effect until a legal framework ensuring non-discrimination and equality for disabled people is in force. However, proposals for VE/PAS are inherently discriminatory.

The current legal prohibition, which is historically and internationally standard, reflects the fact that every patient enjoys an inalienable right not to be intentionally killed. The principle against intentional killing is grounded in a recognition that each one of us, regardless of illness, life-expectancy, age, disability, gender, race, religion or sexual orientation shares an intrinsic dignity and equality. That fundamental equality makes it wrong for any physician intentionally to kill patients or to help patients kill themselves. (Not surprisingly, VE/PAS are opposed by the World Medical Association.)

The House of Lords Select Committee on Medical Ethics aptly described the prohibition on intentional killing as 'the cornerstone of law and of social relationships' that 'protects each one of us impartially, embodying the belief that all are equal.'

Laws that permit VE/PAS are, by contrast, grounded on the belief that there are two categories of patient: those with lives 'worth living' and those who would be 'better off dead'. Such laws invite discriminatory judgments about the supposed worth of patients’ lives.

The argument that VE/PAS is required by respect for patient 'choice' is specious. Laws and proposed laws for VE/PAS do not allow them for any patient who wants them but only for some. So: VE/PAS are not at bottom about 'choice' but about the judgment that the requests of some patients should granted because it is thought by others that they would be 'better off dead'. No wonder that disability groups are at the forefront of opposition to VE/PAS. They can see more clearly than many the sinister implications of the case for legalisation.

The practical and logical slippery slope

Third, once the law’s 'bright line' prohibition against intentional killing or assisting suicide is breached, society begins an inevitable descent down the slippery slope, for reasons both practical and logical.

Practically, it is impossible to ensure effective legal control. How could the qualifying conditions (whether 'terminal illness' or 'unbearable suffering') be defined with sufficient precision? Even if defined, how could they be enforced in practice? By relying on self-reporting by the very doctors involved (as the few laws that allow VE/PAS do)?

Bills introduced in the UK Parliament have been modelled on Oregon’s Death with Dignity Act, which allows PAS for the 'terminally ill'. Campaigners have invoked the ethical principles of respect for patient choice and the doctor’s duty of beneficence - the duty to relieve the patient’s suffering. But why don’t those very same principles justify PAS for the chronically ill, such as those with arthritis, who face years of suffering? Why don’t they justify VE, especially if the patient is too disabled to self-administer the poison?

And why doesn’t beneficence alone justify a hastened death for those who are suffering but who are (like those with serious learning disabilities) incapable of making a request? True, such patients are not autonomous, but the absence of patient autonomy does not cancel the doctor’s duty of beneficence. If it is thought that they would be 'better off dead', why deny them that benefit?

The evidence from those few jurisdictions that allow VE or PAS reinforces slippery slope concerns. The best evidence is from the Netherlands, whose Supreme Court declared both lawful in 1984. Since then, government surveys have shown that physicians have, in violation of the law’s allegedly 'strict' safeguards and with virtual impunity, failed to report thousands of cases and have given lethal injections to thousands of patients without request. In 1996 the courts (logically) extended the law to allow lethal injections for disabled infants. In 2016 the government announced a proposal to allow assisted suicide for the elderly who have a 'completed life'.

The evidence from Oregon, where no such surveys have been carried out, is far more limited and is certainly insufficient to support claims made by the law’s supporters that it has prevented abuse. The law, drafted by 'assisted dying' campaigners, is simply not capable of preventing abuse. As one leading law professor has noted, its safeguards are 'largely illusory'. No-one knows how many physicians have practised PAS outside the law or how reliable the brief reports filed by physicians have been.

Canada legalised VE and PAS in 2016. The government will soon decide whether to extend it to mature minors and to the mentally ill. And why not? The arguments against further legalisation are weaker than those against initial legalisation.

Deputies may well that rather than reventilating arguments that have been repeatedly aired and rejected by Westminster, their valuable time and resources would be better devoted to continuing to improve end-of-life care for all in Guernsey.

Professor John Keown DCL (Oxford)

Kennedy Institute of Ethics

Georgetown University