A Reasoned Analysis: Living and Dying Well have produced a compelling Briefing which sets out the case against The Assisted Dying Bill
Background
Baroness Meacher’s Private Member’s Assisted Dying Bill would “enable adults who are terminally ill to be provided at their request with specified assistance to end their own lives”. It would license doctors to supply lethal drugs, on request, to terminally ill patients who appeared to meet certain conditions. This is assisting suicide, which is prohibited by the Suicide Act of 1961.
Should the existing law be changed?
Suicide was decriminalised in 1961, but the Act1 made clear that encouraging or assisting suicide remains a criminal offence. It recognises the tragedy of suicide, the public interest in third parties not being involved in the suicide of another and underpins the public policy of suicide prevention.
The existing law provides penalties in reserve that are sufficient to make anyone contemplating assisting another person’s suicide to think very carefully. The Director of Public Prosecutions (DPP) has discretion not to prosecute if it is clear that any assistance given had been wholly motivated by compassion, without any malicious intent. Such a decision is made under the “public interest test” despite there being evidence of an offence having been committed. Prosecution for assisting suicide is rare. Fewer than 20 cases annually throughout the whole of England and Wales reach the DPP. In the last 10 years there have been three prosecutions2 when broader criminal intent motivated the assistance of suicide. The law works well as a deterrent against assistance of suicide for personal gain.
Laws send social messages. The Bill suggests that if a patient is terminally ill then seeking lethal drugs is something that he or she should consider and that it may even be a moral duty. Yet most terminally ill people want to live and know that society wants them to live. They can be anxious, often needlessly, about how their illness will develop or worried about the burdens it is imposing on those around them. In such cases the Bill’s negative messaging has the potential to cause harm. It will add anxiety and pressure at the end of life and increase suffering rather than relieve it.
1 As amended by the Coroners and Justice Act 2010.
2 The Crown Prosecution Service. Assisted Suicide. August 17, 2020.
https://www.cps.gov.uk/publication/assisted-suicide
The Bill raises three principal questions:
- Should the existing law be changed?
- Would the Bill safeguard vulnerable people?
- Is assessing people for lethal drugs for suicide the role of doctors?
Would the Bill safeguard vulnerable people?
- Prognosis of Terminal Illness
• A prognosis of six months of life remaining is mere guesswork. The Mackay Committee heard:
o “It is possible to make reasonably accurate prognoses of death within minutes, hours or a few days. When this stretches to months, then the scope for error can extend into years” – Royal College of General Practitioners3
o “Prognosticating may be better when somebody is within the last two or three weeks of their life. I have to say that, when they are six or eight months away from it, it is actually pretty desperately hopeless as an accurate factor”- Professor John Saunders, Royal College of Physicians4
• The Bill will permit patients access to lethal drugs in the belief they had only a short period of life remaining when, in fact, they could have much longer to live. A guestimate of prognosis is not a safeguard, it cannot be verified. - Settled Wish to Die
• What constitutes a “settled wish to die”? The Bill is completely silent on this and about how a doctor or any other person faced with a request for lethal drugs is supposed to go about establishing its existence. - Freedom from Pressure
• A request for lethal drugs may appear voluntary but, in reality, can result from various pressures. Undue influence in the form of elder abuse and coercive control are widespread and often go undetected. People also worry about the cost or care burden of their care on hard-pressed families or beneficiaries.
• Can doctors spot such pressures? Do they really know what goes on behind closed doors in people’s homes? The Bill requires no minimum steps that a doctor must take to exclude coercion. Doctor-shopping, as seen in Oregon, means that any such coercion
3 House of Lords Report 86-II (Session 2004-05), Page 555.
4 House of Lords Report 86-I (Session 2004-05), Paragraph 118.
The Bill contains a number of conditions that would have to be met before lethal drugs could be supplied. The requesting person must:
- have a progressing non-curable condition;
- be expected to die within six months;
- have a settled wish to die;
- make the request voluntarily and free from pressure or coercion;
- have decision-making capacity;
- be aware of the alternatives to assisted suicide.
As general statements, these may sound reasonable enough. In reality, they are purely symbolic, and they lay down no acceptable minimum steps to ensure they are met.
remains undetectable; notably in the US state elder abuse has soared by 13 per cent in the space of a year 5.
- Decision-making Capacity
• The Bill states that “‘capacity’ shall be construed in accordance with the Mental Capacity Act 2005”6. Yet the MCA states “for the avoidance of doubt, it is hereby declared that nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (c. 60) (assisting suicide)”7. Capacity is decision and time-specific and is easily impaired by depression, illness and medication. The more serious the decision, the greater the capacity required. There can be no more grave and irrevocable decision than ending one’s life. Yet the Bill implies that a patient requesting lethal drugs should be assumed to have capacity for that decision even when it contradicts Section 62 of the MCA. - Codes of Practice
• The Bill is silent on the practicalities, including scrutiny of the quality of any of the assessment processes. It proposes various unspecified codes of practice to be drafted after Parliament has agreed to change the law. But safeguards are, in practice, the essence of legislation such as this. The Bill begs the question: how can Parliament responsibly decide whether the law should be changed unless and until potential dangers have been addressed?
• The so-called safeguards are vague and empty symbolic assurances. They present an unworkable target which will be virtually impossible to codify, and which will be frequently and easily circumvented, misinterpreted, ignored, overlooked and rejected – as evidenced in every other jurisdiction which imagined that assisted suicide or euthanasia could be safely controlled or contained. - Lethal Drugs
• The lethal drugs used have never been subject to proper scientific scrutiny. Drugs for euthanasia are often those also used in judicial executions around the world8. For assisted suicide, massive doses of barbiturate were used but a world-shortage and escalating prices have meant different drug combinations are now being tried9. In Oregon, a mixture of four different classes of drug have been used, but these drug combinations have longer median times to death than the barbiturates which are no longer readily available10. The combinations are intended to induce sedation with toxic levels precipitating a heart arrhythmia and death by asphyxia. It is worth noting, in the Oregon reports, that in only 41 per cent of cases is it recorded that no complications occurred11.
5 Oregon Department of Health and Human Services. Adult Abuse Prevent, Investigations and Initiatives. https://www.oregon.gov/DHS/SENIORS-DISABILITIES/ADULT-ABUSE/Pages/index.aspx
6 Assisted Dying Bill [2021-22], Clause 12
7 Mental Capacity Act 2005, Part 3, Section 62.
8 https://deathpenaltyinfo.org/executions/lethal-injection/state-by-state-lethal-injection-protocols
9 Oregon Death with Dignity Act 2020 Data Summary. February 26, 2021.
10 Oregon Death with Dignity Act 2020 Data Summary. February 26, 2021.
11 Ibid
• The Bill requires Parliament to trust in a code of practice to specify the drugs to be used and where they are to be ingested. Far from the glamour of a Hollywood death, evidence from other jurisdictions has revealed assisted suicides in busy hospital wards or care homes can be traumatic for other patients and for staff.
Is this what the NHS is for?
• The Bill places responsibility on the shoulders of doctors for deciding whether a person should be provided with lethal drugs. This assessment goes far beyond clinical aspects of a request (for example, diagnosis and prognosis). It extends to personal or social issues (for example, whether a request for lethal drugs is settled or might be transient or whether there are personal or family pressures involved) – issues on which most doctors cannot make knowledge-based judgements.
• When patients need specialist palliative care input, they are usually dependent on the charitable sector for provision of such support. But as Covid has shown, fundraising is increasingly difficult and such services are very patchy around the country, often being completely absent from areas of social deprivation. Yet the Bill proposes using NHS resources to undertake proper assessments while simultaneously continuing to deal with clinical need, in the face of severe workforce shortages.
• The British Medical Association has recently adopted a stance of neutrality, on whether the law should be changed, by the narrowest of majorities – 149 votes to 145. Notably, the opinion survey of its members, on which that vote was based, included many who do not have a license to practice, being either medical students or retired. This same survey showed clearly that a majority of the doctors experienced of treating terminally ill patients (those working in palliative care, geriatric medicine, oncology, GPs) are not willing to participate in any part of such practices. The result of that, as the emerging data from Oregon shows, is that in many cases those requesting lethal drugs would be assessed by a minority of willing doctors who had never met them before and knew nothing about them beyond a case summary. This is no basis for sound decision-making.
The Court and decision-making
• Then the Bill requires the High Court (Family Division) to “consent” to assisted suicide, but is silent on what is required of the Court. Is it to confirm the relevant paperwork is complete or is there a clear requirement of scrutiny?
• In 2014 the Supreme Court, in rejecting an Appeal for ‘assisted dying’, stated “over the past twenty-five years the High Court has been able to sanction a number of actions in relation to people which will lead to their deaths”12. These included withdrawal of life-support machines and of artificial nutrition and hydration, following reports from doctors on the medical aspects of each case. But it has been the responsibility of the Court to make the overall decisions, after considering all factors including the medical opinion.
12 R (on the application of Nicklinson and another (Appellants) v Ministry of Justice (Respondents), UKSC38, Paragraphs 123-124
• Under an ‘assisted dying’ regime, the Court will need medical information, such as the diagnosis and expected course of the disease, but as doctors to not know the personal or social factors in an individual life beyond what is recorded in the clinical record, the judgement on eligibility should be the responsibility of the Court. It is the role of the Court alone to balance the rights of some against protection of others, not of the consulting room.
Right to die?
• No one can be “forced” to go on living. To treat a person without consent, even if life prolonging, is unlawful. Any person can refuse or halt life-extending treatment and doctors have a duty of care to alleviate any resulting pain or distress. This was well illustrated by the death of Noel Conway, who had had motor neurone disease, who had campaigned for a change in the law and who died peacefully in June after asking for the artificial ventilation that was keeping him alive to be removed. There already exists a right to die: what does not exist is a right to require a third person to play a part in killing another.
Extension of Scope
• If, as is claimed, the Bill is motivated by compassion, why offer lethal drugs only to people expected to die soon? What about those with chronic conditions or serious mental suffering?
• Current law lays down a clear red line and an acceptable methodology founded on good law: we do not deliberately bring about the deaths of others, yet we accept natural death. The Bill creates a lacuna in suicide prevention for a few, but inequality for the majority. It creates legal confusion, open to challenge and the inevitable extension of scope through case law.
Overseas Experience of Assisted suicide
• Claims that similar laws are working without problems overseas are without foundation. Oregon’s law, which is the model for the Bill, embodies no oversight system to ensure that doctors’ actions are in compliance. This Bill suffers from the same weakness. Oregon’s annual death rates from reported assisted suicide keep rising: there was a 28 per cent increase in deaths between 2019 and 2020 alone13. Based on Oregon’s current death rate we could expect to see some 3,500 assisted suicide deaths annually in England and Wales if this Bill were to be enacted. Oregon’s doctor-shopping has led to multiple-prescribing by a minority of doctors willing to consider requests for lethal drugs: in 2020 one doctor wrote no fewer than 31 prescriptions14.
13 Oregon Death with Dignity Act 2020 Data Summary. February 26, 2021. https://www.oregon.gov/oha/PH/PROVIDERPARTNERRESOURCES/EVALUATIONRESEARCH/DEATHWITHDIGNITYACT/Documents/year23.pdf
14 Ibid
• Stories of people travelling from Britain to Switzerland for legalised assisted suicide hit the headlines, but such events are very rare, representing around 0.006 per cent of all British deaths annually15.
Conclusion
Licensing doctors to supply lethal drugs to some patients would be a major change to the criminal law and to the principles underlying NHS clinical care.
The Bill assumes the existence of a perfect world – a world in which all seriously ill people are completely clear-headed and unhindered by personal or family difficulties; in which all doctors have the time and clinical experience to assess those who say they want to take their own lives; and in which all relatives are “loved ones”. The real world is not like that. Those who care for seriously ill people day in and day out know that they are often frightened of what the future may bring or worried about the impact of their illness on their families and that they often veer between hope and despair. Many doctors know little of their patients’ lives beyond what they may happen to pick up in the consulting room. Many patients have no meaningful professional relationship with their GPs. Most families are loving and caring towards their sick members, but – sadly – some are not; and even loving families can find themselves isolated, unsupported and drained by care fatigue. Laws need to be robustly designed for the real world, not for the imagined perfect world of the idealist.
Parliament has debated this issue extensively over the last 20 years and on balance has rejected assisted suicide and euthanasia, leading The Times to declare in an editorial of 2015 that “the Lords’ bill on assisted dying should not be revived”16.
Parliament again has a duty to examine the evidence dispassionately and to consider the consequences. This Bill, like its predecessors, crosses a dangerous line. Its heavy focus on choice and control for the articulate and its lack of recognition of vulnerability at the end of life make it a law to oblige the strong, not a law to protect the weak. It does nothing to improve care. It undermines patients’ rights to proper care when dying.
15 Frédéric Michas. Accompanied suicides to Dignitas in Switzerland from Great Britain 2002-2019.
16 Dignity in Death. The Times. April 3, 2015. https://www.thetimes.co.uk/article/dignity-in-death-p398dsltcjn
