Examination of Witnesses (Questions 60
- 69)
TUESDAY 14 SEPTEMBER 2004
PROFESSOR JONATHAN
GLOVER, PROFESSOR
IRENE HIGGINSON
and MS PENNEY
LEWIS
Q60 Lord Joffe: Dr Lewis, I found
the chart that you prepared comparing the legislation in the various
countries very helpful. We are keen, from the point of view of
those supporting the Bill, to make sure that it is as foolproof
as we can, recognising that nothing can ever be totally foolproof.
I was wondering, based on your experience and your comparisons,
if you have any suggestion as to whether there are any gaps which
could be closed, accepting of course your basic premise that the
doctor/patient relationship is terribly important.
Ms Lewis: I think it would be difficult to legislate
for that. It has been developed as one of the requirements for
careful practice in The Netherlands that it must be a doctor who
knows the patient, because otherwise the doctor cannot assess
whether or not the request is voluntary and well-considered, which
is where they do their competence assessment, and also whether
the suffering is unbearable. So it is a requirement; and I think,
if you were a Dutch doctor and you did not really know the patient,
you could get into some trouble. One of the concerns that I have
about the Bill, which I think is in my paper, is about the criteria
that trigger a psychiatric referral, and it seems to me that there
are two points. One is that there is only one criterion which
triggers a psychiatric referral in the Bill, which is a concern
about competence, yet there are two issues which the psychiatric
referral is supposed to deal with, the competence issue and whether
or not the patient suffers from a psychiatric or psychological
disorder causing impaired judgment. It seems strange to me that
you would only trigger the referral through a concern about competence,
but then you would go on and look at two issues. So it might be
worth thinking about what should be the trigger for a psychiatric
referral and whether both of those possibilities should trigger
it. I have then raised a couple of other issues that one might
consider for triggering a psychiatric referral or being evaluated
or both, and they both come from evidence on what they use psychiatric
referrals for in The Netherlands—and they do not use them
uniformly. One is to look at voluntariness, and I think one could
be concerned about voluntariness without being concerned about
the risk of a psychiatric or psychological disorder. So one might
just want someone else to evaluate the voluntariness, although
the evidence seems to be quite a difficult thing to evaluate,
so I am just raising it as a possibility. The other issue which
comes out of the Netherlands literature is that they are concerned
about transference and counter-transference. I wonder whether
it might be worth the Committee hearing from psychiatrists about
whether they think that is a real problem and whether it is something
which should be looked at in some cases or in all cases. I am
not a psychiatrist, so it is not my area of expertise, but it
is something that comes up in the Dutch literature as one of the
things which psychiatric referrals can be used to look at more
closely. There is quite a lot of material suggesting that psychiatrists
in some of these jurisdictions are not particularly happy with
the idea that they become the final gatekeeper. So I think it
is worth not just saying we will add even more and more safeguards
and we will scrutinise more and more using psychiatrists, but
there is a danger that the psychiatrists are put it quite difficult
positions. So there is a balance to be struck there, but I do
think that having at least one more trigger would make more sense.
Bishop of St Albans: I would like to
go back, if I may, to the 1960s and the view of Professor Glover.
I suspect you may not be too happy with a hierarchy of values
kind of language, but nevertheless in several places you referred
to people's deepest values; not quite life or death but we are
talking of something in that field. Would you be willing to say
what you think to be either the highest or the lowest moral value
of an individual human being and/or of society?
Q61 Chairman: I wonder if we could
leave you to think that over and we will come back as soon as
we can.
Professor Glover: Saved by the bell.
The Committee suspended from 4.22 pm to 4.35
pm for a Division in the House.
Q62 Chairman: You have had an opportunity
to consider your answer. I hope we have not forgotten the question?
Professor Glover: I remember the question; alas,
turning it over in my mind has not made me more confident of my
answer, but I will give it all the same. I think that there probably
is a central core of human values that perhaps not everybody but
the great majority of people across different cultures might well
subscribe to. It is a highly controversial question and it is
an incredibly difficult empirical question, whether there is such
a central core of human values that we all share. But in teaching
in a number of different countries, but mainly in this country,
I spend a lot of time asking students about their values and exploring
them, probing and questioning. I am surprised how often it seems
to me that they refer to certain basic, central values, and among
them are, for instance, a desire for one's life to add up to something,
to mean something, which is not as it were easily encompassed
within, for instance, a crude utilitarian answer that says that
all that matters is pleasure and the absence of pain. You asked
me an extremely difficult question—is there a hierarchy
such that one is the key one? And I think here I am inclined to
say that my own opinion is No, there are a number of things. Isaiah
Berlin spent a lot of his life talking about the plurality of
different values and how there may be certain integral values
that we are deeply committed to that are not bedded down easily
with each other, and there may be no right answer to the question—
what is the calculus which says liberty is more important than
equality or the other way round. We all know those sorts of debates,
say about education: equality of opportunity may require that
everybody has the same sort of schooling and liberty may require
that parents are free to choose different sorts of schooling.
But I know of no way of saying that one of these obviously trumps
the other. I would be prepared to say Yes, there is probably a
central core of human values, but I do not actually think that
I am at all confident that whatever happens to be my key value
is going to be that of anyone else.
Bishop of St Albans: Thank you very much.
Q63 Chairman: I would like to ask
you why you are glad, in relation to the capital punishment question,
to live in a country that was not ruled by public opinion, which
is what I think you said?
Professor Glover: Yes. I did not say that I
wanted a country in which public opinion is taken no notice of
I believe in democracy, roughly of the sort we have— although
I am not always sure how well it works. I believe that ultimately
governments and legislators ought to be answerable to the people
in some form or other. But I do not believe that on every issue
legislators should say the right answer to the question, what
sort of Bill we should have on this matter, is to be found by
asking what most people in the country believe. In the case of
capital punishment what I want to say—and here I am displaying
some of my own values, which certainly are not universally shared
and may not even be shared by everyone in this room—I believe
that capital punishment is something barbaric, I think it is something
which runs the risks of a quite appalling injustice: it is hard
to imagine anything much worse than knowing you are going to be
executed for a crime that you know you did not commit. That seems
to me a degree of injustice which is monstrous. I believe the
evidence that it reduces the murder rate is extraordinarily poor,
so for those sorts of reasons I think it is a wonderful thing
that, in the now-much-derided Sixties, of which I am a product,
we got rid of that particular mode of punishment. I know that
at the time that Parliament voted to remove capital punishment
a majority of people, then and certainly for some years afterwards,
actually supported capital punishment, and I am not even sure
what the current position is. In answer to your question there
are powerful moral arguments against capital punishment, and I
think they trump the idea that we ought to always do what most
people believe is right.
Q64 Chairman: You mentioned that
the sanctity of life is a principle that comes into this debate,
and that it comes in, not only in what I might call faith communities,
but also is a principle that is subscribed to by others?
Professor Glover: Yes.
Q65 Chairman: Could you please say
what you understand by that principle as understood by those who
are not a faith community?
Professor Glover: I should put my cards on the
table I am not a religious believer. I am actually not a typical
subscriber to the principle of sanctity of life either, but I
think that it is one value that I very well understand the pull
of without it being a matter of it being commanded by God. What
I understand the secular version to be is identical to what I
understand the religious version to be— namely, that there
is an absolute barrier, an absolute ban, not derived from a religious
source, on the intentional taking of innocent human life. It is
the same principle, and if it seems a puzzle why someone who does
not believe it is God who says "Thou shalt not kill"
should take that view, perhaps I could mention George Orwell—and
this links back to capital punishment. George Orwell describes
how, when he was in the colonial service, somewhere in the Far
East—I forget exactly where but possibly Burma—he
was once part of a group of men who were present at an execution.
He describes walking towards the place of the execution, the group
of the guards, the officials and so on, and in the middle was
the man who was to be executed. As they walked along the path
there was a puddle and everybody, including the man who was about
to be executed, swerved to avoid the puddle. At that moment George
Orwell suddenly had this very powerful intuitive response. He
said that here we were, a group of men, walking along together,
and all of our bodies were toiling away as they usually do—hearts
were working, brains were working, it was all working—but
in a few moments there would be one of these people less—
"One life less, one world less", he said. "At that
moment it came to me", as he put it, "the unspeakable
wrongness of cutting off a life in full tide." I can imagine
walking along in that group, and I am not a religious believer,
but I can certainly imagine having that overwhelming feeling about
the awfulness, the seriousness, of what was about to be done.
Because I have thought a lot about the sanctity of life I am both
pulled towards the George Orwell response, but also want to make
lots of qualifications about respecting people's wishes not to
go on living, qualifications about how it could be justifiable
to kill someone in pursuit of a just war. And for that reason
I think there is something to be said for the formulation I gave,
which actually allows for that possibility. I think there is a
powerful pull, which possibly could be explained in terms of evolutionary
programming but possibly would not have to be, and most human
beings think that the issue of taking someone's life is a deeply
serious issue and one that requires a great deal of justification.
I do not think one needs religious authority to take a view like
that.
Q66 Chairman: Can you help me on
a slightly related matter—and it may be that you would want
to ask one or other of your colleagues to assist in this—that,in
relation to suicide, at the present moment if people are in prison
there is often thought to be a risk that they may commit suicide,
and precautions have to be taken by the prison authorities to
obviate that risk so far as possible. How do you see the basis
of that particular practice?
Professor Glover: I take it that it is a bit
similar to the practice that I believe prevails in hospitals when
someone comes in having attempted suicide. Because the act of
suicide is such a serious one and so irrevocable if successful,
if somebody comes into hospital unconscious, having attempted
suicide, there is a strong moral case for reviving them, unless
you have masses of documentation showing that this was a very
serious thing which has been discussed and planned and so on.
In the normal case where someone comes in, there is not any evidence
one way or the other, but it seems to me that there is far less
moral risk in reviving someone—who will after all have another
chance to commit suicide if that is their deep and serious intention—than
there is in letting someone die in those circumstances, when it
might be the product of temporary depression and not reflect their
deep values. There is a case where you do not know, and have not
gone through all the types of procedure that this bill envisages,
there is a case for taking very seriously the idea that suicide
is something to be prevented if possible. But that is a temporary
thing, and in prison my worry is it might be that someone, say,
serving a life sentence might have a very serious wish to die,
but one of the ways in which prison may be an abrogation of that
person's life is that they may not be allowed to do that. My colleagues
might have something to add—does either of my colleagues
want to contribute?
Ms Lewis: I think there is some authority for
the legal proposition that a competent prisoner, even though some
of his civil rights may have been suspended by the fact that he
is a prisoner, can make decisions which will result in his death.
There have been a couple of cases recently, one involving a hunger
strike and one involving a prisoner who was self-harming in a
way that was going to be fatal if he did not accept medical treatment,
which he was refusing to do. So there is some authority for the
idea that, if the person is not competent, he could then go ahead
and either refuse food or refuse treatment which would be life-saving,
and from that one might infer that a competent prisoner could
decide to commit suicide. The kind of prisoners who are placed
on suicide watch are prisoners where there is some concern that
actually they may be suffering from a mental illness or a mental
disorder which prevents them from making a competent decision.
And I know there is a debate in the literature, which spills over
sometimes into the euthanasia literature, about whether or not
it is possible rationally choose to kill yourself. I suppose one
scenario where one might argue that it would be rational to commit
suicide would be a case of a life sentence, but I do think that
Jonathan is right that the concern in those cases where prisoners
are placed on suicide watch is because we are not sure if they
are competent or if they have a treatable mental disorder which,
if treated, might make them change their mind.
Q67 Chairman: That brings me to ask
about the situation of a person who is not thought to be competent
but suffering from mental illness, who is obviously also suffering
very severely from physical illness. What is the position that
differentiates that from the person who is competent who wants
to request assistance to die?
Professor Glover: It seems to me to make a difference
to your question whether we envisage that the person who is now
incompetent did or did not give an advance directive.
Q68 Chairman: I am assuming for the
moment that he or she did not give an advance directive. They
are mentally affected but obviously to the doctors who are looking
at the matter they are suffering very severe pain, which I am
assuming, for the sake of example, cannot be alleviated.
Professor Glover: My colleagues may have different
views on this, but I will simply express mine. To me it is so
important to keep the barriers of euthanasia or assisted dying
by request from any other sort for slippery slope reasons. Although
it might be very cruel to leave a person alive when they are not
competent, if they are not competent to ask I believe that we
should not kill them, because if you do that you are moving over
what seems to me to be a very fundamental moral barrier. You are
moving away from respecting the autonomy by reason of a particular
request to taking a decision from outside on their behalf; that
is something which, I think, we should be extraordinarily reluctant
to do, but my colleagues may differ on this.
Professor Higginson: My comment would be that
you seem to be describing a context where an individual might
be, for example, profoundly depressed and be requesting euthanasia
but might have previously said they would want euthanasia. And
I suppose that the issue is that we know that, when people are
depressed or in states of mental distress, they are more likely
to wish to die than not; but, if one reverses that mental distress,
then they are less likely to want to die. That we know. There
is concern, for example, that people in prison sometimes have
a recognised health problem and sometimes they have ended up in
prison because of health difficulties which have led them into
crime or whatever. It seems to me that in those instances there
is a requirement to attempt to treat the problem that someone
has, and drawing the fine line between depression and a sustained
wish to die in that instance and in many instances is extremely
difficult.
Q69 Chairman: Thank you. We are going
to have to break again. I am just wondering if we necessarily
want to come back. Perhaps you could consider yourselves free,
thank you very much indeed.
Professor Glover: Could I just say one more
thing, which is that I have been passed a note. Somebody has passed
me a note saying— could someone remind the Committee of
the story of Sodom and Gomorrah and the small number who need
to repent. I think this has to do with your question, Baroness
Hayman— does it matter what percentage it is? I make no
comment.
Chairman: Thank you very much indeed.
I am sorry to leave you with slightly less deliberation than I
normally would, but thank you.
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