Assisted thinking

Does the debate around assisted dying need a more focused analysis?

Dianne Pretty suffered from motor neurone disease. In 2001, she wanted to end her life, but her illness rendered her incapable of doing so without help. She tried to obtain an undertaking from the Director of Public Prosecutions (DPP) that her husband would not be prosecuted if he assisted her. The DPP of the day said that he had no power to grant such an undertaking and the courts agreed with him. Mrs Pretty died in a hospice in May of the following year.

My instinctive reaction on hearing about that case was to think the law ought to be changed to make assisted dying a legal possibility in appropriate circumstances. More than 20 years later, my instinctive reaction has not changed. But faced with a real possibility that the necessary legislation might soon be enacted in the UK, my news feed has recently been full of articles opposing the move.

I have started thinking more carefully about the topic and doing some research. The outcome surprised me.

Dying Care by by Lars Meiertoberens from the Noun Project

Those who oppose assisted suicide offer many reasons, but those reasons that I have come across all boil down to one or more of the following three central objections:

• No matter how tight the limits that are imposed in an assisted dying law, it would be just the start of a slippery slope to greater numbers and wider categories of assistance as time goes by.  

• Vulnerable people would feel pressure to end their lives in order to avoid being a burden on those who care for them. Some might even be coerced into ending their lives.

• We cannot ask doctors, whose job is to save lives, to participate in steps to end a life.

I will start with the slippery slope. The argument is based on at least one false premise and probably two. You have to be already against assisted suicide in order to think that expanding the categories necessarily makes the law worse. For those who are in favour or undecided, it may seem quite reasonable to start out with a restricted set of circumstances and then, if no adverse outcomes manifest themselves, vary the criteria in search of the optimal result – a result which may vary over time as attitudes and medical science change.

The other false premise is the notion that we aren’t already on a slippery slope, when in fact we are. Recent history suggests that our current position on the slope is not a place of stability. Let us examine why.

Historically, suicide was a criminal offence. Obviously, people who succeeded were beyond the reach of the law. But those who tried and failed could be charged with an offence. It was the criminality of suicide which gave rise to the expression “commit suicide”, using a verb in a way that is normally reserved for something wrong or illegal. The punishments for attempted suicide varied widely. In 1958, a man was sent to prison for six months. In 1953, a former army officer was fined £25.

The legal slippery slope began with the passing of the Suicide Act 1961 which removed suicide as a criminal offence, but confirmed in statute the offence of assisting, or encouraging, suicide by another person.

The law settled there for a while, but it didn’t stop. In 2009, eight years and two DPPs after the Pretty case (mentioned earlier), a court ordered the then DPP to draw up a policy which would set out how he would decide whether or not to prosecute those suspected of assisting or encouraging suicide. The DPP at the time was Sir Keir Starmer. Not surprisingly, he did as the court ordered.

An updated version of the policy remains in place. So, since 2009, there have been limited circumstances in which the illegality of assisted suicide is essentially theoretical because, if a case met the relevant criteria, it would not be prosecuted. That was a further slide down the slippery slope.

In 2018, a decision in the UK courts made it easier to withdraw food and liquid to bring about the death of a patient in a permanent vegetative state. The judges removed the need for court approval if the doctors and the family could agree on the action.

Whilst nothing in these decisions goes so far as to give a court’s permission for assisted dying - judges cannot overturn a law enacted by Parliament –there has clearly been movement in the law which has served to advance the timing of some deaths and make it easier to do so.

Next, I want to examine the argument by opponents of assisted dying that vulnerable people might feel pressure to seek an assisted death or, worse, be coerced into it. That sounds very troubling. But it is a risk that is also present under the current law – a risk that is well-known in medical circles. When a patient is faced with an end-of-life decision whether to continue life-sustaining treatment, a decision not to proceed has the same ultimate outcome as an assisted death. There is already professional guidance for doctors on the need to be aware of coercion in these circumstances. Doctors who specialise in palliative care consider themselves well-skilled in making such a determination.

And, for those who are worried that assisted dying legislation could result in people with disabilities being coerced into thinking their life is not worth living even before the time comes for end-of-life decisions, there is the stark reality that this, too, could be happening already. Those who are being coerced to end their lives need to have the support to report those who are doing the coercing. The legalisation of medically assisted suicide would provide a forum for more open discussion with doctors about the issues and therefore a means by which to increase the opportunities for vulnerable people to talk through the pressures they face.

Other safeguards are likely to accompany any change in the law. For example, the involvement of a court to authorise each assisted death – in addition to a medical practitioner, not instead of one – could provide a mechanism to check that the doctor(s) had made the necessary enquiries.

The coercion issue is by no means cut-and-dried. It is far from clear that the legalisation of assisted dying would increase the risk of coercion. It might actually reduce a risk that already exists.

Which brings me on to the questions about how society can ask doctors to participate in steps to end a life.

The short and simple answer is that doctors are already doing it. Think, first, about the occasions that a doctor turns off a ventilator knowing that it will result in the sure and certain death of a patient who cannot breathe for themselves. And, for those patients who are able to breathe for themselves, but who cannot eat, it may be a feeding tube that is withdrawn. Again, the result is a sure and certain death, but one that may take longer. As discussed above, these decisions can already be taken by a doctor and family if they agree. There have even been occasions when doctors have been granted permission by the court to take these actions against the wishes of family members.

In the public mind, the notion of removing essential treatment is probably most associated with patients in a vegetative or minimally conscious state. But any patient can refuse treatment, even treatment that is essential for keeping them alive, so long as they have the mental capacity to make that decision.

Our courts have determined that withdrawal of treatment in these circumstances does not amount to euthanasia (which would be illegal). Judges have drawn a distinction between an action which causes death (and is, therefore, illegal) and an action which results in death (which, depending on several other factors, may be lawful).  

So it is clear that doctors can be quite active – and even proactive – in events that bring about the end of life.

Another variant of this same theme is the occasions when opioids were given to patients for the relief of severe pain, with the dose set at a level which the doctor knew was not enough to kill but believed it might shorten the patient’s life. This was considered acceptable – both legally and medically – on the basis that the primary purpose was to relieve pain, not to bring about death.

I recognise that all of these examples are different from the steps that would be taken under a law that permitted assisted dying. If there wasn’t a difference, we wouldn’t be having this debate and there would be no need to discuss a change in the law. But these examples do serve to undermine the argument that it would require a fundamental change in the nature of the doctor-patient relationship in order for a doctor to accede to a patient’s request for help with bringing their life to an end.  

It is certainly true that there are doctors who would not wish to be involved in such life-ending activity. It is no part of the case for assisted dying that doctors should be required to take active steps to bring about death. But there are doctors who are willing to take those actions if they were to be legalised. There are even doctors who positively advocate for this change in the law. Their evidence to a parliamentary committee in 2023 was both carefully considered and compassionate.

I don’t expect the arguments discussed above to be the end of my analysis or my research. The topic is too serious and too significant to be settled by an essay of less than 2,000 words. But the research which brought me to this place in my thinking has certainly left me more well-disposed to a legislative change in the direction of assisted dying.