05 November 2020
Life and Death
Defining human rights.
By Lynda Goetz
“The problem” said the retired GP, “is that doctors now seem to view every death as some sort of failure on their part.” He was actually talking about the world’s reaction to Covid-19, but this is almost certainly a more general problem. Of course, it is a doctor’s job, insofar as it is possible, to ‘make people better’. Clearly, there are times when this is not possible and the individual under their care is inevitably going to die. We are all going to die, of course, at some point. Most of us, particularly those who are without religious beliefs, find this thought frightening and choose, on the whole, to push it very much to the back of our minds. If or when we do think about it, we tend to believe or hope that the moment can be put off with the help of modern medicines or surgery. To a great extent this is true. It should not however blind us to the fact that at some point death is inevitable. When this is the case, should we have the right to choose the time?
This fundamentally is the question posed by those around the world who argue for assisted dying. It has become established that “an individual’s right to decide by what means and at what point his or her life will end” is an aspect of the rights protected by Article 8(1) of the European Convention on Human Rights. However, here in the UK, not only is there a conflict with S2 of the Suicide Act 1961, but there has been serious opposition from the medical profession to any relaxation of the law. A number of other countries do not take the same view. An article in the Guardian in July 2019 set out those countries where assisted dying was legal with brief definitions of the parameters within which it was allowed. Recently, New Zealand has joined those countries.
New Zealand’s voters have in a public referendum voted to pass The End of Life Choice Act, which will allow those who are terminally ill and with less than six months to live to choose assisted dying if approved by two doctors. The Act was passed by the New Zealand parliament a year ago, after a number of years of heated debate, with the proviso that there should also be a public referendum in which at least 50% would have to vote ‘yes’. Although there are still some 480,000 special votes still to come in (from those living abroad etc), this will happen by November 6th and already 65.2% of voters have supported the Act, which is now expected to pass into law in November 2021.
In this country there have been various attempts to bring in a similar law, but so far without success.* As things stand, it is still illegal to ‘aid, abet, counsel or procure the suicide of another’ and in theory could result in up to fourteen years in jail. Although some of those who have taken family members abroad (eg to Dignitas in Switzerland) for a ‘physician-assisted suicide’ have been charged, the charges have always been dropped before ever getting as far as court. In 2009, Debbie Purdey, who had multiple sclerosis, launched a case to attempt to clarify the position. Her case resulted in some clarification from the Director of Public Prosecutions who set out guidelines indicating when a prosecution was not in the public interest – effectively when the act had been carried out for compassionate reasons and that the ‘victim’ had reached a clear, settled and informed decision to commit suicide .
Attempts to reform the law started back in the 1930s, but more recent efforts to bring forward assisted dying bills have either run out of parliamentary time or been defeated. There have also been a number of legal challenges in the courts to the blanket ban on assisted suicide, by patients with and without a terminal illness. None of the requests to the courts for the right to a medically assisted death in the UK have succeeded. Many of these are crowd-funded or supported by Dignity in Dying, Humanists UK,or My Death, My Decision all organisations committed to a more compassionate approach to dying in the U.K.
The British Medical Association (BMA), which is the professional body that represents doctors and medical students, has always taken a stance against physician-aided suicide (assisted dying). This is perhaps unsurprising, since doctors, as pointed out earlier, view their job as ‘making people better’. However, what if that is not only not possible, but it is also impossible for the medical profession to relieve the ‘intolerable pain’ suffered, whether that intolerable pain is physical or indeed mental? Whilst it is easy enough for us to see the case for ‘putting to sleep’ an animal to relieve its suffering, any attempts to put the case for humans instantly become infinitely more complicated. Nevertheless, is it right that doctors have a ‘disproportionate influence on the decision’, as Raymond Tallis, Emeritus Professor of Geriatric Medicine at Manchester University and philosopher, put it?
In March 2019, the Royal College of Physicians (RCP) removed its opposition to assisted dying and adopted a neutral stance after a poll of its members in January of that year (see report in BMJ). Professor Tallis in an article on their website had urged for this to be the outcome. The Royal College of Nursing was already neutral on this issue. The BMA has continued its stance of opposition, but they too conducted a poll in February, the results of which were published just a month ago on 8th October. This BMA survey on assisted dying was not a policy-forming survey, but interestingly, it is does appear to be the case that the view of the medical profession is slowly moving to be more in line with public opinion. Given the results of the survey, policy may perhaps change at the next annual representative meeting in June 2021. According to a survey of members of the public conducted in 2019 and reported in The Guardian in March last year, over 90% of the public supported legalising assisted dying for those suffering from a terminal illness.
The devil, however, is in the detail. The NZ law to come into effect next year will allow anyone who has less than six months to live to choose assisted dying if approved by two doctors. In an extremely interesting and very comprehensive letter to the Government Legal Department in May last year, the solicitors, Bindmans LLP, who also acted for Omid T in 2017 set out their pre-Claim on behalf of Mr Philippe Newby. I leave you to peruse this should you be sufficiently interested in all the legal ramifications, but thought it worth drawing attention to the fact that Lord Neuberger made the following comment in the Nicklinson case: “there seems to me to be significantly more justification in assisting people to die if they have the prospect of living for many years a life that they regarded as valueless, miserable and often painful, than if they have only a few months left to live”.
New Zealand is the latest of a number of countries to allow assisted dying. Assisted dying is of itself a somewhat misunderstood term and there is no universal agreement on terminology (see BMJ article) but particularly given our current obsession with deaths caused by Covid-19 (or even of those who died of something else within 28 days of a positive Covid test) perhaps it is time to examine anew our attitudes to what constitutes ‘Human Rights’. Does this include the right to live a meaningful life and the right to have some control over our death?
*For a brief history of assisted suicide in the UK see Wikipedia.
