Gresham College Lectures

Should We Permit Voluntary Assisted Dying?

November 02, 2022 Gresham College
Gresham College Lectures
Should We Permit Voluntary Assisted Dying?
Show Notes Transcript

The English courts have wrestled with challenges to the restrictions on euthanasia and assisted suicide for years, while the government has resisted calls to liberalise the law. Meanwhile, terminally ill people continue to travel overseas to clinics such as Dignitas, to end their lives. Assisted dying raises fundamental questions about respect for individual autonomy, protection of the vulnerable and the role the State should play.

This lecture will explain the law and explore arguments for and against liberalisation.


A lecture by Professor Imogen Goold

The transcript and downloadable versions of the lecture are available from the Gresham College website: https://www.gresham.ac.uk/watch-now/voluntary-dying

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- So, I want to talk today to you about, whether we should permit voluntary assisted dying. And I want to say from the outset that this is obviously a highly emotive topic on which people have legitimately different views. And I want to tread carefully as I talk about it. I have my own personal perspective on it and I have my own views about it. I want to attempt to give you a sense of what the law is and why the law is as it is, and to explain some of the arguments on either side. As I was writing this, I'd said to myself at the beginning, "Make sure you're completely neutral." And I was talking to my husband, he said, "Yeah, make sure you are completely neutral." And I have to say, I found that I can't be, and I think that I have to stand by that and say, you will see that I have a position. I will attempt to be as unbiased as I can though. And what I'm really keen is to hear from all of you about your perspectives, because I know many of us have personal stories of this and we have strong personal feelings and we have strong moral feelings and I'm very open to hearing everybody's perspective at the end. So, I look forward to your questions and your comments. So, what I first want to talk to you about is what do I mean when I talk about voluntary assisted dying? It means many things. I'm using a fairly limited definition today, but I will talk to you about some wider ideas, about what voluntary assisted dying means. So, euthanasia is the act of deliberately ending a person's life to relieve their suffering. And assisted suicide is the act of deliberately assisting another person to kill themselves. And these are the two things that we tend to mean when we say voluntary assisted dying. And those in favor of these things frame them as acts of compassion. So, for example, Baroness Bakewell expressed in the House of Lords recently "An easeful death is a gift the compassionate, "should legally bestow on patients in their dying days." So, it's demonstrably something that those who are in favor of it, considered to be a compassionate act. I want to talk to you about some other things that might form more broadly into the context of assisted dying in a moment. But I want to start with what the fundamental legal position is. The fundamental legal position is that a doctor who deliberately ends a patient's life is potentially guilty of murder. So, Justice Devlin said in Adams, "If the acts done are intended to kill and do in fact kill, "it does not matter if a life is cut short "by weeks or months, "it is just as much murder as if "it were cut short by years." In R and Inglis, Lord Judge said, "The law of murder does not distinguish "between murder for malevolent reasons "and murder motivated by familial love." So, as long as the act and the mental elements are present, it doesn't matter that the patient is terminally ill. It doesn't matter that they had consented. It doesn't matter if it's a merciful act. So, Lord Golf affirm this in Airedale NHS Trust and Bland when he said, "It's not lawful for a doctor to administer a drug "to his patient to bring about his death, "even if that course is prompted by the humanitarian desire "to end suffering, however great that suffering may be." So, there are many clear judicial statements that make it clear that this is not lawful, that it is not lawful to actively end a patient's life. At this point, I want to pause and tell you about some things that are lawful, because I think when we think about assisted dying, it's important to understand the wider context in which these decisions are taken and what the law does permit. So, one of those is refusal of treatment. So, we don't tend to think of this as assisted dying, but in effect, a patient can choose to refuse treatment and that choice has to be respected. We cannot impose treatment on patients who don't want it. Dame Elizabeth Butler-Sloss affirms this in re B, when she says, "If the patient having been given the relevant information "and offered the available options, "chooses to refuse that decision, "that has to be respected by the doctors, "considerations of the best interest "of the patient are irrelevant." So, when a person is competent and capacitive and able to make their own informed decisions, it doesn't matter if we think they make a decision that's bad for them, if they want to refuse treatment, we have to respect it. There are other contexts in with treatment is withdrawn. And I think it's really important to understand this as well is that there are situations in which the doctor can decide not to treat, despite the patient's wishes. Now again, we don't think of this as assisted dying, but it is the case that doctors can withdraw treatment when they think it is futile. And the way to understand this is that the law doesn't oblige doctors to give treatments that they don't think are in the patient's best interest, just because the patient demands it. And this was confirmed in Iron Burke and the GMC in 2005. It was a case in which Leslie Burke had cerebellar ataxia and he would eventually need artificial feeding and he wanted assurance that he would not have feeding and hydration, withdrawn from him when he came incompetent as he knew he eventually would. And the court of appeal decided they couldn't give a prospective judgment on a hypothetical question, but they did confirm that patients cannot demand treatment. It's at the doctor's discretion to offer treatment and there's no duty to do so. That said, it's also the case that a doctor does have a duty to do what is reasonable to keep a patient alive. And this usually includes artificial feeding and hydration and the only times that can be withdrawn when the patient is non-competent and hasn't been expressing a wish to be kept alive prior to losing competence. And so there is a tension there, between what we expect of doctors and what doctors must do and what patients can request. But fundamentally, doctors cannot be compelled to do things that they think are wrong, but at the same time they must do what a competent and reasonable doctor would do, otherwise they would be negligent in their care. So, there are contexts in which care, even feeding and hydration can be lawfully withdrawn. And the most high high profile of those cases recently is the Bland case from 1993. This concerned Tony Bland who had been crushed in the Hillsborough disaster and oxygen had been cut off to his brain for some time and this led to severe and irreversible damage to the highest center of his brain. And the question in that case, was whether or not it would be alright to withdraw support from him. And here withdrawals framed as an omission, it was a failure to keep him alive. And did it include hydration and nutrition with specific dimensions of this decision? And within that, the court considered whether or not withdrawing treatment, could ever be in someone's best interest. Can it be the case that it's good for someone to die, because it was thought it effectively will say his life has no value. But within that case, the various lords expressed a range of views on this and explained that there may be context. And this was one of them in which actually prolonging his treatment to keeping him alive was subjecting him to indignities and distressing his family. Lord Keith said to an individual with no cognitive capacity, whatever, and no prospect of ever recovering any such capacity, it must be a matter of complete indifference, whether he lives or dies. So, he was focusing on the lack of capacity, whereas Lord Keith also went on to say, "Existence impervious isn't beneficial to a patient," whereas Lord Goff thought it was about futility and that that was a justification to withdraw treatment. There were a series of cases after that that sort of refined this and confirmed it in cases of pervious and non-pervious. But fundamentally, the obligation to treat is not absolute and you do not have to treat as a doctor when it is futile. Now what I think the reason to talk about these, before we talk about euthanasia and assisted suicide is to say that there are demonstrably contexts in which doctors and patients can take decisions that lead to the ending of someone's life. And they illustrate the gray area in which the discussion and debate about euthanasia has to operate. So medicine and the law are always, I think, walking a very complex and nuanced line. And I think also it's worth keeping in mind, whether we are being legally and morally consistent when we take a position on euthanasia or assisted suicide with the things that we already permit. We also need to ask ourselves questions. And I'll consider these in the course of this lecture, about whether or not it's more harmful to permit someone to die slowly when they refuse treatment than to offer them a faster means to the same end. And does it also matter whether it is a mere omission or an act that brings about their death? So, now I want to turn to the focus of my talk, which is a euthanasia and assisted suicide. So as I said, euthanasia is the ending of someone's life for their benefit and it is illegal. But there are important distinctions to make when we think about euthanasia. All euthanasia is not the same. Voluntary euthanasia is when a person makes a conscious competent decision to die and they ask someone to do this for them, so they do not end their own life. Non-voluntary euthanasia is when a person takes a decision on someone else's behalf to end their life. And even within that there are distinctions. That might be because the person has previously expressed a wish in the past and now they're reflecting it. But where it doesn't tally with what the person actually wanted, we would be better off calling it involuntary euthanasia. And that is the case where someone makes a decision, despite what the patient wants themselves. Now, the kind of euthanasia I'm focusing on today is voluntary euthanasia. There's no suggestion in any of the present debates I think in the Lords and so on when bills have been made that we're moving towards involuntary euthanasia. And that would be deeply problematic for many reasons that I don't wish to go into today, because I think the real debate at the moment is about assisted suicide and voluntary euthanasia. Assisted suicide is where somebody, needs the assistance of someone else to kill themselves. So, they do the act themselves in some form, but they cannot access the means or the method on their own. Now, assisted suicide is illegal as well, under the terms of the Suicide Act and it's punishable by up to 14 years. However, trying to kill yourself without assistance is not itself a crime. So, assists a suicide in the law and it's unusual in the sense that it is a criminal offense to help someone do something, which is not itself criminal. So, the key distinction here is whether or not is a doctor or another person causing their death or the person who does it for themselves, but with assistance. Now, why would anybody seek either of these? I think most of us are probably familiar with that, but I think it's important to hear some examples from people who want change or have pressed for change in the law. One of the most famous of these, I'm sure everybody has heard of him, is Tony Nicklinson. Tony Nicklinson, if you don't know had locked-in syndrome. He couldn't talk, he couldn't feed himself, he was unable to move except for his eyes and he was entirely dependent on others for his care. But he wasn't terminally ill. So, he was likely to live for some years, in fact potentially decades. But he was unable to take his own life. Now, he wanted to end his life but he wasn't able to. And he brought a challenge to the law. He described his life at the time as dull, miserable, demeaning, undignified and intolerable. And in another statement he put a slightly more sharp edge to his comments and said, "You try defecating to order while suspended in a sling, "over a commode and see how you get on." So, he did really try to express the way his life was and why he wanted to end it. We also have Lord Browne-Wilkinson speaking in the Bland case, talking about how it might actually seem irrational to keep the law as it currently stands. And where he says, "How can it be lawful "to allow a patient to die slowly though painlessly, "over a period of weeks from a lack of food, "but unlawful to produce his immediate death "by lethal injection, "thereby saving his family from yes, "another ordeal to add to the tragedy "that has already struck them? "I find it difficult "to find a moral answer to that question, "but it is undoubtedly the law." So, people in Tony Nicklison in similar cases, the reason they want euthanasia is because they cannot commit suicide themselves. They are incapacitated and they cannot in their life on their own. Those who seek assisted suicide do so, because of course voluntary euthanasia in this country isn't lawful, but they cannot access the means to commit suicide themselves or they can't bring themselves to do it and do what it might take to do it in the way that they would have to do it on their own. Now, people can be helped to commit suicide in a range of ways. One will be affording them access to drugs that might end their life. Another way to assist suicide is to help them to travel to somewhere to where they can commit suicide. And an example of that that you'll be familiar with of course is travel to Switzerland to the Dignitas Clinic. And there they may be assisted by anyone who helps them to get to the clinic. And that was the subject of some of the high profile cases that you might have heard of. So, when people go to Dignitas, it is a clinic where they'll have a number of meetings with the staff and then they'll be provided with the means to commit suicide, which they do so by taking medication orally. It costs thousands of pounds and it requires travel, so for some people that isn't actually an option, either because they don't have the means or they aren't actually able to travel. So, what is the current law in a bit more detail? Well, with assisted suicide, suicide ceased to be a crime under the 1961 Suicide Act. But it is clear that helping someone to commit suicide is a crime. The act goes through in some detail what it means or what complicity in someone else's suicide entails. It means encouraging them or assisting them, aiding them, abetting them, counseling them or procuring them means. So, it goes into quite a lot of detail. Say all of these things where you are in some way involved in somebody else's suicide, will be captured. Even arranging for one person to do an act, might be treated as meaning you are involved. It also includes putting pressure on someone and threatening them to anything that might lead to somebody else's suicide is captured by the act. Now, this law has come under a series of challenges and I want to take you through the history of the challenges to the act, so that you understand why we are where we are. The first of these is Pretty. The case of Pretty in the UK from 2002. So, Mrs Pretty suffered from motor neuron disease, which is a progressive degenerative disorder that leads to death. And she sought an undertaken from the DPP that her husband, would not be prosecuted if he helped her to commit suicide. But the DPP refused. He would only determine how to act, once he had the facts before him. So, of course this caused a great anxiety, because she worried that if her husband did help her that after she died he would be subject to prosecution, which he didn't want. So, she sought judicial review of his decision. Now, in the case she raised a range of arguments, relating to her human rights and one was she said that her Article Two, Right to Life, included a right to determine the manner of her own death and that this included a right to commit suicide. So that it was a right that encompassed all of your decisions, about how your life runs in that sense. She also argued that Article Three, the prohibition on torture, meant that actually this prohibition on assisting her to commit suicide left her in an inhumane and degraded state that essentially forcing her to be in a position where she couldn't end her own life or be assisted to do so was a form of inhumane and torturous behavior towards her. And that therefore this happened, due to the actions of the state, that they were the ones putting her in this position and therefore it was a breach for Article Three right. She further argued that this was a breach of her right to privacy under Article Eight. So she said that decisions about how to die were a matter of privacy, a matter of individual conscience. And then in denying her the ability to die in a manner of her choosing her privacy was violated. And this is akin to the sort of arguments you see made, about abortion in Article Eight. And also she raised Article Nine, Freedom of Religion and Belief. The House of Lords found that there was no prima facie violation of her rights. They said that actually assisting in abetting suicide, doesn't undermine her rights under Article 2389 or Article 14, Freedom from Discrimination and that the Convention of Human Rights, didn't require states to permit assisting in suicide, that any effect on her rights was reasonable and proportionate. And so the DPP could exercise its discretion as he chose. She took her claim to the European Court of Human Rights, they also rejected her claim and they said that Article Two, The Right to Life doesn't have a negative aspect. It doesn't include a right to die. And they said that Article Three, death from natural illness while still provided treatment, doesn't equate to torture either. So, it wasn't a breach of Article Three and they didn't consider that a belief in euthanasia was the kind of right protected by Article Nine. The right to Freedom of Religion and Belief. They didn't, however, reject the possibility that Article Eight rights, might be invoked. So, they did see that this might be a matter of private decision making, but they also felt that there were strong reasons in favor of the UK Suicide Act provisions. And so in effect, her convention rights weren't impinged upon, because it was a proportionate step by the UK Government. Some years later that having failed, a new challenge was brought and this time by Debbie Purdy in 2009. So, Debbie Purdy suffered from multiple sclerosis, which is also a progressive generative disease. And she also was concerned about what would happen to her husband if he helped her to commit suicide. In her case, she wanted to travel to Switzerland to commit suicide and she would need her husband's help if she left it until the later stages of of the disease. And she was considering having to go earlier if he couldn't help her, which is I think an important thing to keep in mind is that people may choose to go sooner if they worry that they put their loved ones at risk and that was certainly her concern. So, what she sought was not to reopen the pretty challenge, which had obviously failed, but instead to take a different tack and say, "Well, what they really needed was clarification "from the DPP on the application "of the Suicide Act provisions "to those who assist in suicide." So, she accepted that the DPP might prosecute, but what she was asking for was the DPP to give clarity about when he or she, in this case he would do so. So, she argued that the DPP was clearly exercising his discretion in not prosecuting people who helped others to go to Switzerland to commit suicide. 'Cause about a hundred people had already done so, so demonstrably he wasn't prosecuting and therefore he must, she argued, have some criteria to determine when he chose not to prosecute and that these should be made public and that the failure to do so, was an infringement of her convention rights. The divisional court applied Pretty and said, no, her rights were not infringed and it wasn't disproportionate, but she was given leave to appeal. Now, before the case went to appeal, the DPP actually released detailed guidance on his reasoning in another case. And this was a case where the family members, had helped a young man called Daniel James to travel to Dignitas. Now Daniel James had been a rugby player and he had been paralyzed in an accident and he wanted to die. And what the DPP explained in his guidance on his reasoning in that case where he didn't prosecute was he'd said, "Well, things that had suggested the prosecution "was appropriate were that suicide, "assisting suicide was a serious offense." So, he affirmed the law, but he also said that there were factors suggesting that prosecution was inappropriate. And one of those was that James had attempted to commit suicide and seemed likely to continue trying. Another was the assistance given was minor and that none of those assisting stood to gain from his death and that they had tried to talk him out of it. In fact, they had booked him a return ticket to Switzerland in the hope that he would actually change his mind. So, they demonstrably were hoping that he wouldn't, but he had a settle desire to end his life and they supported him in pursuing that. The Court of Appeal dismissed Purdy's claim, the DPP could not and should not guarantee that he wouldn't prosecute. So, you couldn't bind the DPP to say when he would and wouldn't prosecute. And they also said there was enough guidance now to be available to make a guess, an educated guess about when prosecution might be pursued. But she took it to the House of Lords and her claim succeeded. They accepted that her right to life had been engaged and her decision to commit suicide fell under Article Eight, her right to privacy. They still considered that interference with her right to privacy could be justified, but it required legal justification. And so Lord Browne said there will be on occasion situations where it would be possible to regard the conduct of the aider in a better and altruistic rather than criminal conduct, rather to be understood out of respect for an intending suicides right under Article Eight than discouraged so as to safeguard the right of life to others under Article Two. So, saying that there would be multiple sides to these situations. And as a consequence they said the current guidance on when such an interference with her Article Eight right might be made was insufficient. And the DPP was required to provide offense specific policy, identifying the facts and circumstances when he would take into account in deciding whether to prosecute under Section 21, it's important to understand that Purdy didn't change the law, assisted suicide remain legal and for some such as Lord Golf this didn't seem to be enough. He said, "People shouldn't be forced to linger in old age "or in states of advanced physical and mental decrepitude, "which conflict with strongly held ideas of self "and personal identity." So, he was invoking the privacy dimension, under Article Eight. But regardless what it did do was require the DPP to give clear guidance on when a prosecution would be made. And this guidance was released in 2010. So, there are a lot of factors, I'll touch on some of them, but they give you a sense of what the DPPs perspective was. He listed a range of factors relating to both victims and suspects that would give some direction about when prosecution was more likely. So, things related to the victim that increased the likelihood of prosecution would be if the victim was under 18, they lacked legal capacity, they hadn't reached a voluntary clear, settled, an informed decision, hadn't clearly communicated it, they hadn't sought the encouragement of the person who came to assist them and they were able to do the act themselves. I think more importantly are the suspect related factors. You can see the kind of quality of act that the DPP is suggesting is the thought that the demanded prosecution and these were if the suspect wasn't known to the victim, if they had encouraged more than one victim and that they were paid by the victim for their encouragement, they were acting in able to provide a physical environment or they knew the victim intended to commit suicide in a public place or they weren't wholly motivated by compassion or they had pressured them. All of those factors are clearly factors where they are about the suspect's motivations and not about compassion or care for the victim. And so it's saying that the suspect had their own reasons and that actually it's only in cases where the victims reasons were the dominant reasons that this happened that you'll be less like to prosecute. But a key one to mention the one that we will come back to later is that it would be a suspect related factor, likely to increase chances of prosecution if the suspect was acting in his capacity or her capacity as a medical professional or a professional carer or a personal authority. So, the DPP was making clear that doctors would not be immune from prosecution. So, a family member might be, but someone in a position of care or responsibility or power essentially or authority in relation to a patient, would be open to prosecution or likely so. Was this a sufficient step and was it the right step? Well, in one sense I think clarity was a good thing to demonstrate there were people, and Purdy was one of them who found it very stressful and difficult that they couldn't know and they couldn't plan their decisions, because they couldn't know what would happen to their loved ones. And in terms of what position Purdy was in, it seems to me particularly problematic to put people who are coming towards the end of their life who are deeply vulnerable or in pain or in distress to add this additional burden on them. And so I think it was a good decision in that sense. Some however, such as Kate Greasley have argued that actually it was a problematic step in her article which she refers to as "The Case for Willful Blindness," she says actually clarity and guidance, made the situation worse, because what it did was it undermined discretion to outline factors that would determine when it would be exercised. So, in having to lay everything out clearly the DPP then lost the capacity for further discretion. It also, she says, meant that we have now got a particular way that is mandated of assisting. So, doctors are excluded of family members and not, and that also such clarification effectively leads to determinations on the value of some lives, those that may be assisted to end and those that may not. Now, Keir Starmer, who was the DPP at this point and who drafted the guidance when he later became an MP, actually raised his own concerns about the guidance, which I think is very interesting. And he said actually one of the things that was a concern about his guidance was that it wasn't supportive of medics assisting and that this did he recognized create a problem for people who were without help. So in fact, people who didn't have family members to assist them who were arguably more vulnerable, were put in a worse position and that they couldn't call on the people who were caring for them to help them at all. And so they were left with fewer options than they might otherwise have been. And he also said it was problematic to approach the situation the way Purdy had demanded that he do because it meant that it didn't enable a pre-decision exploration of the situation. It didn't enable people involved to look for consent or whether the decision was voluntary and so on, but rather just place the emphasis on a post-facto exploration of what the person who had assisted them had done and that this wasn't a good solution to the problem of people who wanted to be helped to die. Now when we come to voluntary, so we'll move on to voluntary euthanasia. Voluntary euthanasia, I think the thing to say about this, so I've told you the the the general legal position. What's also important to know however, is that doctors are very, very, if ever convicted of murder for voluntary euthanasia. And it's clear that judges and the juries and the judiciary, are often sympathetic to doctors that they think have acted compassionately. So, in R and Arthur it said, "Think long and hard," he says to the jury, "before deciding that doctors of the eminence we have heard, "have evolved standards which amount to committing a crime." Or Justice Hooper in R and Moore, "You may consider it a great irony "that a doctor who goes out of his way to care "for a patient ends up facing the charge that he does." So, in those situations the judge had to apply the law that stood as do the juries. But you can see that there's a clear direction to appreciate the reasons as to why a doctor might do this. Now, the law does it's true, offer a range of possible defenses, diminished responsibility. It may be the case that someone can say, "Well actually the person who helps someone to die "is in a sense themselves not responsible, "because they're not entirely thinking clearly." And this might affect sentencing, but it's unlikely to be available to doctors we know, because actually they can't show the requisite, abnormality of mind in these situations to meet the threshold. We might argue provocation, suicide pact might reduce it to manslaughter, but these again tend not to be particularly good defenses to try to use, their complex and so on. One is the doctrine of double effect, which is arguably a problematic way to think about these things and I don't intend to go into it in great detail today. But what that means is that you may have two goals in a sense, you have a dominant goal which is to relieve pain, but you're aware that it will lead to death. And whether that will be a defense, we know from R and Cheshire that an act leading to death, has to be the substantial and operating cause of that death. But of course it's very difficult for a doctor to tell themselves what one is their goal and the other is just a known side effect. So, it is complex and problematic. We also have the case of Jodie and Mary, the separation of conjoined twins and there that was framed as self-defense in supporting that. But essentially we know that almost invariably doctors, will not be prosecuted. So, we have this situation in which the law says one thing, but it is applied in a different way. So, this was directly challenged in 2014 by Tony Nicklinson who sought voluntary euthanasia. So, coming after Pretty and Purdy, his was for euthanasia and that was because he couldn't commit suicide himself, he didn't have the capacity. Now, what he wanted was an exploration of whether or not euthanasia itself, voluntary euthanasia could effectively be a defense to the charge of murder. So, making it explicit to say the defense here is actually that this was a euthanasia. And so he sent sought declarations on two arguments that might depending on the answer, have enabled him to pursue euthanasia. And one was that the common law defense of necessity would be available to a charge of murder in a case of voluntary active euthanasia or a charge of a case of assisted suicide. And the other alternative was that the current law of murder or of assisted suicide was incapacity with this right to respect for private life under Article Eight. So, he was reviewing the Article Eight dimension on assisted suicide. Now when he made these, when he saw these declarations, he made a range of caveats that he said would be need to be in place for when necessity could arise. These would be the patient's life was one of unbearable suffering. There was no alternative means to relieve suffering. The decision was clearly voluntary and informed and settled. And the doctor was satisfied that the duty to ease suffering, outweighed the duty to preserve life. So, he was framing a way that the law could accept euthanasia, voluntary euthanasia as a response to a situation like his. His application for judicial review was rejected by the divisional court and after that happened he refused food and water and he died some days later. But his widow was given permission to carry on and it went to the Court of Appeal. And at the Court of Appeal it was found that euthanasia, would not be a defense to murder and that the restrictions on euthanasia, didn't breach his Article Eight rights, that they fell within the margin of appreciation and it was for parliament to enact laws. It then went on, joined with another case from Martin to the Supreme Court. And at that point, given the failure on euthanasia, they had pivoted to focusing on assisted suicide. And what we got from this is essentially the final word, because subsequent decisions that have come to the courts, have said Nicklison is our final position of the house of of the Supreme Court. And in that someone on unusually all nine justices of the Supreme Court gave their views. So, it's complicated to pick out what the decision means, but fundamentally five of the judges, felt that they could decide that it did fall within their constitutional powers to decide this. But they differed on whether or not Article Eight was incompatible with assisted suicide. So, they all thought they could make the decision, but they had different views on what the decision should be. And four felt that it was a matter for parliament. And as some like Lord Sumption pointed out, "This was because it was a case of vex moral issues "and there was a need for non individualized, "non-personally related decision making "that it needed to take account of community perspectives "and be a generally asserted decision. "And only Parliament could do that. "It wasn't right for judges to do so." So, that is the state of the law and it remains the state of the law despite recent changes. Now, what I want to do at this point is to give you some sense of what the community, thinks about the law and then I will talk to you, about some of the recent attempts to change the law through parliament. It's quite difficult I think and I found it quite difficult to find out what people in the community thought about it. And so if you go to look at some of the information that is out there, you will see that even the surveys, even the data that we we have about people's views is contested. So, I will give you some data, but I'll give it to you at the caveat that I'm aware that there is debate about whether or not this data is indicative of what people feel. But the general view that people express is that the population is generally, although not exceedingly in the majority, in favor of allowing some liberalization, about assisted dying. But it depends on the source and the survey. So, according to the Campaign for Dignity and Dying, which is a lobby group pressing for change on the law in their view, 84% of the public support the choice of assisted dying for terminally ill adults. And 86% of the people with a disabilities support this change to the law. Other groups however challenge these results. So, an example of that is Right To Life UK, which argues that some of these polls, are actually misleading and skewed. And so they point out some criticisms of the robustness of dignity and dying survey data and they say Well actually some of those answers change in surveys when you present some counter-arguments and give more detail about what assisted dying, would look like when we put it into practice. So for example, they say that whether respondents to a poll exposed were exposed to counter arguments, the introduction of assisted suicide, appeared to have an impact on the percentages of responses on respondents who said that they supported it. So, they say that support for assisted suicide for example, dropped from 73% in one survey to 43% when respondents were presented with counter arguments. Another survey suggested that 74% of respondents agreed or strongly agreed with a proposal for a bill to enable mentally competent adults in the UK who are terminally ill and have a declared and clear and settled the intent to do in their own life to be provided with assistance to commit suicide. But that support dropped only slightly, but it did drop when they were told that various medical groups, such as the BMA and major disability groups, weren't supportive of a change in the law. Similarly, support dropped when the counter arguments raised that the argument was that there was a risk of people feeling pressured to end their life early to avoid being a burden. That said, in all of the surveys that I have looked at, support still remains at slightly above 50%. So, 50 to 60%. And so it seems to me that it is not reasonable to say that there is a settled view in the community. There is demonstrably a division of views and that the resistance on one side is very strong and the support on the other side is very strong. It's not an issue on which many people feel ambivalent. So, what do we do with this sort of data? Does this give us the answer about what we should do? Well my feeling is we should take it seriously, but what we should take seriously is that there is strongly divided opinion and that whatever solution we develop, it needs to be able to account for the fact that whatever view people have, they feel it very, very strongly and with very good reasons. And so whatever legal solution we produce has to account for the fact that there are differences of views. Whether that means a permissive system is another matter which I'll come to. Another question I ask myself when I is writing this talk was I was thinking, "Well what do medical professionals think about this?" And actually we know that because the BMA, did a very extensive survey of its members in 2021. Now, the BMA is a policymaking body. It's a policymaking body. It's partly that, it's policymaking body voted in favor of emotion to change its policy on assisted dying from opposition to one of neutrality. So, they don't support it now, but they don't oppose it. So, their official position is, this means we neither support nor oppose attempts to change the law. We will not be silent on the issue however, we have responsibility to represent our members' interests and concerns in any future legislative proposals and we'll continue to engage with our member to determine their views. So, this was informed by it but not entirely deferment by their survey of their members. So, what did doctors say? Well, they were split quite evenly. So, on the question of do you personally support or oppose a change in the law on prescribing drug drugs for eligible patients to self-administer? So assisted suicide. 50% were supportive and 39% opposed. But then when asked, would you be willing to participate in any way in the process if the law changed, that is, would you help provide these drugs? Only 36% said yes and 45 said no. So, you can see that some doctors are supportive, but they don't themselves personally want to do it. So, they can appreciate that other people might be happy to be involved, they can appreciate why somebody would want to do it, but they personally don't want to participate. On the question of whether they've personally supported or changed a law, so that doctors themselves could administer the drug. So, not providing them, not facilitating assisted suicide, but rather performing the ending of life themselves. Only 37% were supportive and 46 opposed this. So, when it became the doctor's role to end life, there was clear opposition to that. So, only a third of doctors wanted to participate in euthanasia. When asked would you be willing to participate in any way in the process? So, not just whether it would be permitted, but whether they themselves would be prepared to do it. Only a quarter, only 26% said yes they would and 54% said no they would not, that they would not be prepared to participate in euthanasia. Now, it's really interesting to think about what does this mean? And we can drill down into a bit of it, but for reasons of time, I'm not going to draw deeply into it. I think one thing to take from this and I am not a doctor, but it suggests to me that even those who watch people die, experience death the most of all of us and have the most close in perspective in one sense. And who also will have had their own personal experiences, slant away from supporting euthanasia, but less so assisted suicide. That is true. And so I often think I wonder, do they know more about death as a profession than the rest of us do? I would say they probably do. However, it's also true that many members of the BMA don't work in end of life care. And so they may know you know as much as anybody else. So, as a group we can't make such a claim. Now, the BMA quite wisely anticipated this dimension and broke down the responses by specialty. And those who were more supportive of euthanasia and assisted suicide were anesthetics, emergency medicine, intensive care, obstetrics and gynecology. But really interestingly, I think those who were more opposed were clinical oncology, GPs, geriatric medicine and palliative care. So, the people who do actually work with people who are dying or who are terminally ill, are the ones who are opposed. So, the thesis that people who know about death, might be supportive of helping people to end their lives who watch people as they approach the end of the lives, would support ending that isn't true. So, actually they are less supportive. Now again, you might wonder are they skewed in a different way? Their vocation is to preserve life. And it will be understandable if for many of them the idea of then changing to not preserving, but rather ending would be very difficult to accept. But particularly those in palliation. And I think to be a palliative care specialist, I imagine that you have to be deeply committed to palliation as a response to death. That is essentially your vocation. But I would also imagine that lots of us who aren't involved at this, would find it difficult to believe that palliation can be as good as we would hope it would be. And so I think that we should trust those who actually do provide palliative care when they say actually it can do an enormous amount of work, probably more than you might appreciate. And I think this is the kind of context in which we need to listen to experts, about their experience. Even though and I have personal experience of this, find it very difficult to do that. And any of us who've been involved in these things, I think will find it very difficult. This is also true, what comes out of this is that many medical professionals are resistant to having to participate, so that even those who support it don't want to do it. Now, whatever solution we propose in the end, that means that we must have a range of ways in which they can conscientiously object and then we might need to have specialized service providers. We shouldn't impose on doctors who don't want to end people's lives the responsibility for doing so. So unsurprisingly, there's been considerable pressure for change and it is meet with substantial resistance. So, they've been high profile campaigns run on both sides. They've very emotive. In fact, they overtly rely on emotive and personal stories as they rightly should. So, Dignity in Dying and Humanist UK, are in favor of changes to the law. Care Not Killing, Right To Life Care are opposing change in the law. Now at this point, I want to give you an overview of all of these changes. 'Cause I think it's important to see that this process has been going on for at least 20 years, but certainly longer. But the last 20 years we have seen repeated challenges. So, we saw Pretty in 2001. In 2005, we had the Joffe Bill on assisted dying for the terminally ill. Didn't make it past the committee stage of the Lords. Purdy's some years later. And we know what happened there. Nicklison 2014. In 2014, we also had the Falconer Bill, again, an assisted dying bill. It made its second reading but didn't progress. We had the Maurice Bill in 2015 that was defeated at second reading, another private member's bill that was modeled on Falconer. We had the Conway case and the Newby, Lamb cases in 2018, 2019. But most recently we had the Meacher Bill, a private member's bill from May, 2021. What that was proposing was that for terminally adults of full capacity who made a voluntary request, who'd be resident in England and Wales else for 12 months, could apply to the high court and that would authorize assisted dying. That also didn't get further than second reading in the Lords. Now what can we tell from that? Well, it's clear that the courts have resisted change. Parliament, albeit in the Lords largely has resisted change. So, given we end up, I think with two conflicting pieces of information, we're told that the majority, albeit a small majority, support a change in the law. And yet every attempt to make that change has failed. So, I've thought to myself, "Well I wonder, "I need to really find out why. "What happened in these debates and why were they resisted?" So, I read the hand side last week to see what kinds of arguments were made. And I have to say it was a very articulate and thoughtful debate in the Lord's, particularly on the Meacher Bill. So, I'll give you a flavor of both sides and then I'm going to turn in my last 15 minutes to talk to you about arguments on either side myself. So, in favor of the bills, many comments are made about, we can see models from overseas on which we could draw, people fear a traumatic dying process. And there were many impassion statements in the Lords about the pain that people suffered, the anxiety that they and their families suffered. Baroness Meacher raised the fact that people are afraid because they think their suffering won't be alleviated by palliation. Gave some some quite moving examples and that people were left in a position by the law as it stood, that the only way they could avoid their suffering was to starve themselves to death or to find someone to take their life for them and hope that they weren't prosecuted. And it was felt, it was said that now there have been a change in view. So, the BMA and the Royal College of Physicians, having changed to withdraw their opposition, changing survey data all seemed to suggest that there have been a change in mood. And hence it was time for a change in the law. Others suggested that assisted dying, should be regarded not as an alternative to palliation, but as an element, a complimentary part of it. Some argued that there have been no evidence of slippery slopes from the arguments that are come to in other countries. And so actually introducing a more permissive law, wouldn't be as problematic as we might have assumed. That we could put in place safeguards that would in fact be better than the law as it stands. Because at the moment, of course as we've seen, there are people who do die, but they die via refusal of treatment, suicidal starvation or they travel. And that actually an open regulated system with strong safeguards would be more protective than that system. And finally, of course, there were many people who argued as I'll explore later that it is about choice and it's about giving people the decision to say what is right for them. So, it was summed up well by Lord Sherborne, he said that, "Society has decided "that it knows better than you, "even though this is the most important decision "that anybody can take about their own life. "Society has said, "you are denied that choice and you have to suffer. "I cannot accept that it is wrong and cruel." So, that was the tenor of the debate for the change in the law. There was of course significant opposition as well. One of those, one element of that opposition was it actually would be very difficult to put any law into effect. So often, and in this case, the idea of six months to live was used. That idea of, well, we couldn't actually do that. Doctors can't actually tell you how many months you have to live. So, the idea that we could draw bright lines, but whether someone is terminally ill and has a certain amount of time until they die, isn't actually realistic. It will be difficult to put it into effect, because it would not be easy. In fact, it would be very difficult to determine when a decision is competent and free from pressure. People were concerned about the workload for the high court. People were worried about malicious motives. Lord O'Donnell said it's not possible to guard adequately against the abuse of the very elderly and the very ill by greed and manipulative relations and friends. Many people raised slippery slope concerns, pointing the expansion of criteria in the Netherlands and Canada and also were deeply concerned, about the need to protect the vulnerable. So, Baroness Masham of Ilton said, "Vulnerable people need protection, "not the threat of being killed "if life becomes too difficult. "How can they trust doctors if this bill is accepted?" So, that is where we are. So, I'm sorry. So, what I want to do at this point now is to tell you the argument on the both side. Now normally the way I structure something is I want to say, "Well, here's the argument on one side." And I will go through that argument and say, "Well, that's an argument for that side." And then I would go through an argument on the other. But what is really interesting in fact is that in this context, the picture is so complex that it doesn't lend itself to such a breakdown. And that's because many of the factors or principles that are raised in the debate, can actually be made as arguments on both sides. It's one of those areas of bioethical debate where both sides have similar goals, respecting autonomy, protecting people from harm, but come to opposite conclusions. Even as the archbishop of Canterbury said in the House of Lords in the debate on the Meacher Bill, "Everyone here shares the best of intentions." So, to see why and to appreciate the complexity of these issues, I'll work through some of the principles and arguments together. And so I will give you an argument and I'll give you some some responses to it. So, one of the dominant and key arguments is respect for autonomy. And autonomy has been a dominant value in medical ethics, since the 80s at least. And very much has a very strong power in medical ethics, precisely as a response to things that happened in the 20th Century where autonomy was not respected, not just in the sense of doctor, knows best approaches in medicine, but in numerous problematic situations such as Tuskegee and experiments and so on that were problematic that I won't go into. Why do we want to respect people's autonomy and what do we mean by it? Well, we mean the ability to make competent choices, about our lives. And we value it, because we value being in control of our own lives. We take values simply by making our own decisions, but we also value it, because we can bring our own subjective values to bear. We know what is best for us, and if we choose it, we'll be more likely than anybody else to know what will make our lives go well. That is the presumption that I know what is good for me and you know what is good for you. And so I should choose for me, it is more likely that I will make the choice that makes my life go well. However, autonomy isn't really as simple as that. So, Sarah Conley points out that often we actually don't know what is best for us and that we make bad decisions because we're afraid, because we don't understand things, because we're influenced by things, we shouldn't be influenced by, because we are essentially human. And so much of the debate around autonomy is about whether or not people really are capable of making autonomous choices that do make their lives go well, and whether in fact we ought to prevent people from making choices that will harm them. The other dimension to this is whether or not our choices are ever really free. So, the idea is meant to be that I make a voluntary informed choice. It is my decision that reflects my values, but actually many of our choices aren't very authentic. We might feel pressure, we might feel guilt. And these are issues particularly at the end of life when people do feel pressure and they do feel that they're a burden. And this is particularly true of people who are vulnerable and people are vulnerable at the end of life. So, this is an issue of serious importance in debates about assisted dying. But when you take away someone's autonomy, it feels like a terrible thing, particularly in the context of death. And that is because death is probably the most personal thing that will ever happen to any of us. So, Dworkin says, "Making someone die in a way that others approve of, "but which he believes a horrifying contradiction "of his life is a devastating odious form of tyranny." When we permit people's choices about death, we do promote their autonomy. We respect their personal views, we allow them to die as they wish. And if we restrict that choice, then they might do it anyway. But what will actually happen is they will have worse deaths arguably. So, Baroness Meacher made this point in the Lords when she said, "We'll hear much today about vulnerable people. "And that is absolutely right, "but there are no legal safeguards for dying people "who decide that end their lives early, "whether by starving or shooting themselves, "we propose a rigorously safeguard system "that would end these barbarous deaths "and protect vulnerable people." So when we don't give people choices, we don't give them good options. They resort to bad options, so that they can have what they want. There are many responses to this. One is, and we'll come back to this, is the idea that life is sacred. That actually life is so precious that it should be protected. Another is that our death isn't a self-regarding act. It actually affects other people. And this is an argument for restraining that choice that when I make a decision, I don't just affect myself, I affect many people around me and that will be doctors and it will be my family members and my friends and those who love me. We would also say that protecting the autonomy of one person might undermine others. So giving one person their choice, because they are competent and capacities and able to make it, means that we give everybody their choice. And that means those who can't make their own choices or can't make good choices for themselves will be harmed. So there is a cost. Some suggested actually a choice to die of somebody who is in a state like Tony Nicklison or someone who is close to death, can't ever actually be fully autonomous. It can't be a full rich decision, partly because they might be depressed. And in fact we know this, that many people suffer depression towards the end of life, quite understandably. And that when they are less depressed or when that is treated, many of them change their minds and don't want to opt for assisted dying. John Keown makes this point when he talks about how actually many autonomous requests for assisted dying actually evaporate and when the depression is treated, and I think it's really important to be mindful of that. But of course a response to that is, well, that isn't an argument against assisted dying. That's an argument for better support and making sure that we treat people who are depressed. But if unless it's the case that everybody changes their mind after treatment, which isn't the case, it means we will still always, thwart some people settle desires if we don't allow them access to assisted dying. Others suggest that a request to die is actually a cry for help and that what we should do rather than acquiesce or is in fact we should help them. So, they aren't saying they really want to die. What they're saying is, "I'm in pain, I'm in distress, "and what I need is better care." We also know that some people change their minds and this is particularly a problem if we allow euthanasia assisted dying where people are not close to death. So, Dworkin talks about the love sick teenager problem. The idea, and I work on this with my students, is the idea that you might find 17 year old and they break up with their first boyfriend or girlfriend and they're so distraught and they say, "I want to die" and you would never, I think, agree with them. And the reason is, because we know that they will change their mind. Almost invariably people change their minds and we need to leave space for that to be true as well, rather than enabling them to make of such a final decision. The other issue as well is that of course, in a perfect permissive system, it might be the case that we captured everybody's choices, but the reality is that won't be true. There'll be people who are pressured and whatever system we put in place, we won't be able to prevent that. Pressure can be subtle and it's going to affect the vulnerable most, particularly those without support networks. And Katrina George makes the point that women in particular feel this pressure the most, not to be a burden to carry on their social roles. There will be abuse by family members, by doctors, by hospitals. We cannot believe that we can make a perfect system, but we could say that at least bring it out into the open, prevents abuse that probably happens now. So, at least we will be able to openly discuss it and openly look for problems. The other issue is that people at the end of life, will feel like a burden and that they should feel they ought to end their lives and to remove themselves. And I think that would be particularly likely in cases where a loved one is taken on a care burden. As the BMA has pointed out in the absence of assisted dying laws, people can voice these concerns, because they feel safe that their lives won't be ended. The BMA is not suggesting this will happen, but it is an argument that was made, that they raised and that actually some patients, might believe that a doctor will give up on them if they express their concerns and therefore it is better to leave it not an option. So, they feel safe at least speaking openly, about how they feel. There are also those, and Mary Warnock is one of them who have said, "Well, actually, perhaps it's right. "You should feel like a burden." And she said, John Keown quotes were saying, "If you're demented, you're wasting people's lives, "your family's lives, "you're wasting the resources of the NHS." And I think that is exactly the kind of view that people are very afraid of, is not only that people will feel their own sense of burden, but that others will make them feel like a burden. And that that is wrong, because they won't then be making, a voluntary and settled choice for themselves. They'll be making their choice for somebody else, which if your goal is to give people their autonomy and make their lives go better, seems to me completely perverse. The other reason that people might support or one might support euthanasia assisted dying, of course is preventing harm. And that's what we see in discussions like Tony Nicklison. He's explaining that his situation is harming. And it might also be that we want to give people their preferences. Some people gain peace from knowing that they will have control over how and when they'll die. They want to die at a particular time in a particular place. James Rachels talks about how it is cruel to withhold from someone a swift death, but permit them a slow death that we aren't giving them a range of good choices to make. So, there are clear harm arguments, but of course there is a response to that as well. And that is that actually what that means perhaps is that we need better palliation and better supportive care. Here I think we end up in one of the problems, which is we have a debate in either direction. Can palliation end all pain and suffering at the end of life? No, I don't think that it can, but it can probably do more than many people think. It's not just about pain management, it's about managing distressing symptoms and anxiety and mobility issues and so forth. But we will always have cases of people who fall through the cracks. So, Heather McQueen talks about her mother's death on Dignity in Dying website where she says, "We watched everything unfold in its full horror." Sally Briden talks on Dignity in Dying as well saying, "My thoughts are filled with anxiety and fear that my pain "and sickness will not be controllable. "And having the option of assisted death would change that. "I think about dying constantly. "What will happen if the tumors on the left "or the right grow fast. "How am I going to die? "Whether I will be in pain." So, even if it were true that palliation could fix everything, I doubt that everybody would believe that. So, there will still be some forms of suffering. And there are certainly forms of disease where palliation can't take away the impact. It can't take away the impact of Parkinson's disease, motor neuron disease, multiple sclerosis, Tony Nicklison situation It can do a lot, but it can't do everything. So, of course there are arguments on either side then, and with all of them of course there's a risk of error. We might get decisions wrong, we might be wrong about what is good for people. We simply cannot have a perfect system. So, what should we do? I think the concern here, or the difficulty is that there are always good arguments on both sides. There are impacts on one another and there are impacts on ourselves. There is the possibility of slippery slope. It may well be true that we will slip down that slope and we will become hardened to the harms and we will accept things that we wouldn't otherwise have accepted or it may be that we put in strong stops and that isn't true. It is true that there will be an impact on doctors and medical professionals. Doctors will be exposed to requests openly from people who wish to die that they don't want to support. There will be an impact on the doctor-patient relationship and that is true, but also there will be benefits to people. Their choices at the end of life will be respected. What I think we need to do then is think there are two ways to get through this I think and one is to accept that it is partly a balance of harms argument and to think what happens if we do nothing? I think the matter is too vexed for the law to manage in some ways. If we leave it as it is, there will be few prosecutions, but not very more. But I think if we leave it as it is, demonstratively there are people who will fall through the cracks and continue to suffer. The problem is once we open up choice as Simon Rippon argues, we create an option and that place is a pressure on someone. It stops being the case that you aren't accessing something that doesn't exist and instead you are resisting a choice that you've got, but you don't want to take it. And that's quite a different situation. It isn't a neutral option just to be permissive and say, "Well, let's let everybody have their own choice." It isn't as simple as that because once the choice is on the table, when someone doesn't take it, they are actively not taking it, as opposed to it just not being an option at all. So, I think there's only two things we need can think about as our way to get through this. And I'm quite mindful of the time and I need to wind up. And one of those is that we have to accept that there is a balance of harms here, that there will be harms whichever system we have. I've talked to you a lot about some of the harms that we have on either side. People will be left to die in ways that they don't want at the moment. But on the other side if we have a permissive system, we have to accept that there will be people who die sooner than they would otherwise have died. And there will be people who die when they didn't really want to, because our system will be imperfect. On that I feel that is a matter for personal debate in one sense. But my view is that and this is the part where I think it is slightly controversial to say, but I think that the harms of leaving people to live in a way that they find deeply problematic, are probably worse than the harms of the shortening of some lives. But even that I find a difficult thing when I hear myself say it, I think even I find it hard to completely commit to that position. And that's certainly one of the positions in which I would like to hear what you think. I certainly feel conflicted on it, and I say that as someone who has watched someone die and suffer greatly. And so I do feel quite strongly about it, but I'm also very mindful that it's easy to think that a little bit of lost life isn't so bad, as that suffering. So, I think the only way you can resolve it is to look at what are our key values. So, one of our values is to be beneficent and do good for people. But I think fundamentally we are committed as a society to being pluralistic and respecting people and respecting them as moral agents. And so fundamentally, the only way through this as far as I can see, is respect for autonomy. That is our fundamental principle that guides our law. And we should in some sense, give people back the choice to make their own decisions about how they die. It will be the case that there will be some failures, but that doesn't mean we can't at least try to make a system that does its best to do this and to respect people's choices in that way. So, I think that only through liberalization, can we allow people to live a life according to their values by choosing to die or not to die. A prohibition enables only one group to live by their values, the others can't. And in a secular society where we allow for differences in values and differences in viewpoints, the only way we can achieve respect for all these differences is to be permissive. We have to allow people their freedoms, even though it comes at a cost and we need to avoid that cost as far as we can. But I think the alternative of telling people that they can't make their own choice, about the most serious event in their lives has to be considered far worse. Thank you. (audience applauding)