Examination of Witnesses (Questions 1810
- 1819)
THURSDAY 13 JANUARY 2005
MS HANNE
STINSON, PROFESSOR
SIMON BLACKBURN
and PHILIP HAVERS
QC
Q1810 Chairman: Thank you very much
for coming. Our usual method is to invite you to give a short
oral presentation, either separately or together, as you feel
inclined. Then I will invite members of the Committee to ask questions
on which they feel that you may be able to help them. The help
you give us is taken down by the shorthand-writers. You will have
an opportunity of seeing whether the record they make is in accordance
with what you thought you said in due course. Then the transcript
of the evidence as approved will be appended to our report and
will become public property. We expect it to be public property
when our report is delivered, which of course will be as soon
as we finish these deliberations. Would you like to make a start?
Ms Stinson: First of all, thank you very much
for inviting the British Humanist Association to give evidence
today. If I can introduce myself, my name is Hanne Stinson, I
am the Executive Director of the British Humanist Association.
I took up that post three years ago. Before that, I worked for
a very long time with the British Red Cross, which I am just mentioning
because for much of that time my remit included equality and diversity
and I was also responsible for developing and delivering an education
programme on international humanitarian law and human rights.
The first bit of thatinternational humanitarian law I am sure
is not relevant, but the human rights may be. I am not a lawyer
though. I might add that I am also a member of the steering group
that is currently advising the Government on the Commission for
Equality and Human Rights, so again I think that demonstrates
a commitment to both equality and human rights. My two colleagues,
Professor Simon Blackburn and Philip Havers QC, will introduce
themselves in a moment and they would both like to make a short
opening statement as well. I should start perhaps by saying something
about Humanism. In very simple terms, Humanism is the belief that
we can lead good lives in both senses of the word good in the
sense of ethical but also good in the sense of positive, happy,
worthwhile lives, without religious or superstitious beliefs.
Humanists are not religious. They do not believe in God, they
do not believe in any kind of after-life, but they are generally
not anti-religious, and I think that is important to state. Humanists
believe that our moral values are based on our humanity and our
experience and understanding of people and of the world. Our decisions
are based on assessment of the evidence and consideration of the
outcome of our actions and we believe in working with others to
find solutions to problems. Since we believe that people and the
world around us are all we have got, humanists tend to be very
strongly committed to human rights, human dignity and equality
those sorts of areas. The British Humanist Association very strongly
supports this Bill. This view is consistent with the 2004 NOP
poll which found that 95 per cent of the non-religious supported
a change in the law and 82 per cent of the population as a whole
are also in favour, and that includes 81 per cent of Roman Catholics
and Protestants. Not all our policies have quite such widespread
support. The opinion polls give us a picture of what the public
thinks but we should also look at informed public debate, and
these suggest similar conclusions. For example, the Liberal Democrat
Conference in 2004 and the Townswomen's Guild annual meeting in
1997 both voted in favour of changing the law after considering
detailed background papers and lengthy debates. A citizens' jury
organised for Age Concern's Debate of the Age in 1999 also considered
end-of-life issues, and the majority of the participants favoured
a change in the law while a small minority was strongly opposed.
I would like to outline some of the reasons why we support the
Bill. The first reason is individual autonomy. I see this as a
core human value, a human right. We should all be allowed to make
decisions about our own lives unless those decisions are harmful
to others. That is a basic principle of humanism but it is also
shared by many others regardless of their religious or non-religious
beliefs. It is also a key part of medical ethics, with treatment
depending on the patient's informed consent. Indeed, patients
can refuse treatment even if that decision will hasten the patient's
death and regardless of whether the doctor considers this to be
a rational decision. A generation ago medical practice was much
more paternalistic than it is now, with most patients happy for
their doctors to take decisions on their behalf. That has changed
a great deal and there is every indication that this trend is
continuing. Patient autonomy is growing all the time. Doctors
are far more willing to inform patients of their choices and allow
them to make decisions. I am certainly not willing to allow doctors
to take decisions on my behalf without my input, and I know I
am not alone. Secondly, the current situation is discriminatory
and unfair. A patient can have life-saving treatment withdrawn
without having given any indication that this is what they want,
for example in cases of PVS. We also know that doctors end patients'
lives by administering pain relief which they know may kill the
patient (the principle of double effect), and they may do this
without the patient's consent. A patient can choose not to be
treated or to have their treatment withdrawn without any particular
scrutiny of their decision provided they are deemed to be competent.
A patient can end their own life, regardless of whether they are
terminally ill at the time, provided they are physically capable
of doing so. But a patient who is not physically capable of ending
their own life cannot legally be assisted to die, in spite of
having made a rational decision that their pain and suffering
is unbearable and that they wish their life to end. This unfairness
is illustrated by the Ms B and the Dianne Pretty cases. Ms B could
hasten her death by refusing the treatment which was keeping her
alive but Dianne could not hasten her death because she needed
a different kind of help. A significant number of patients like
Dianne Pretty are forced to suffer unbearably and many people,
including myself, see this as unfair and discriminatory. Philip
Havers will be looking at the legal aspects of these situations
in a moment. There are historic precedents to the situation we
have. Certain religious beliefs used to, and in some cases still
do, forbid vaccination, contraception, abortion, and blood transfusions,
but society has legalised them all while at the same time respecting
and protecting the wishes of those who do not want to use them.
I respect absolutely the right of any individual to rule out decisions
to end their life, but I also reject absolutely the right of people
with particular religious beliefs to impose those beliefs on people
who do not share them. Thirdly, we know that assisted dying takes
place. Compassionate doctors and others assist people to die because
they think it is the right thing to do. Because it is unlawful,
we have no idea how often it is done and it is totally unregulated,
unless someone is prosecuted. Strictly regulated assisted dying
in carefully defined circumstances has to be preferable. Finally,
in the current situation, those who assist a patient to die, whether
a doctor or a relative, risk a long prison sentence. It is striking
that the NOP poll found that 51 per cent of people would want
a doctor or relative or friend to break the law to help them if
they were terminally ill and suffering unbearably. It is even
more striking that 55 per cent said that they would break the
law to help a loved one. I would like to ask you whether you think
it is acceptable that society puts anyone in the situation of
having to make a choice like that, because certainly I do not.
That concludes my remarks and I would like to pass on to Professor
Simon Blackburn.
Professor Blackburn: My name is Simon Blackburn.
I am the Professor of Philosophy at the University of Cambridge
and I am a Fellow of the British Academy. I have written and lectured
extensively on moral philosophy and other branches of philosophy,
and that includes giving the Gifford lectures at the University
of Glasgow. I am also Vice-President of the British Humanist Association
and I appear at their invitation. I should like to start by saying
how I understand my brief as a philosopher and as a humanist.
My brief is far from opposing the moral precepts associated with
any particular religious tradition. Many religious traditions
incorporate profound thought about human life and its conduct
and it is foolish not to learn from them. What we humanists claim
is that we are not passive recipients of inherited teachings but
must actively use our own experience, feelings and critical reason
in assessing what they offer us. In saying this, we are of course
saying no more than many people working within religious traditions
who also have recognised the changeability and the changing interpretations
that new experience demands of them. Where we differ is that we
feel able to open our minds to embrace the wider human experience,
including that of other cultures and other philosophies and that
of our common law tradition. As a result, I expect that most of
what I offer will be uncontroversial or familiar to you, and I
hope that it is, but I believe we are dealing with an issue where
our thinking may easily be taken over by uncertain meanings and
entrenched but mistaken emotions and inferences. In this presentation,
I should like to confine myself to some remarks about three examples.
Two arise from my knowledge as a philosopher; the third is a piece
of fire-fighting arising from what I have heard about this discussion.
The first is the compassion and the sanctity of life. We all applaud
this, and rightly so, but I believe it is much less clear how
they bear on the discussion than many think. One quick, opening
remark is that, centrally, opposition to this Bill is based not
so much upon the sanctity of life, cannot be based upon the sanctity
of life, but the sanctity of dying; in other words, the essential
inviolability of the process of dying in whatever way nature and
accident have determined, however long, degrading, undignified
and intolerable. In Professor Hart's case, and I believe it is
actually a constructed case, of the burning lorry-driver, one
would not defend refusal to offer a painless death on the grounds
of the value of life. You could only defend the refusal of, in
that case, the policeman to act because of the sanctity of a process,
because you believe that nature must be left to take its course.
In England, simple suicide or the request to discontinue treatments
were once deemed inconsistent with the sanctity of life on just
those grounds. Now, they are not so in law and I do not hear of
campaigns to repeal that, although some of the absolutist positions
which you heard this morning might indeed wish that were so. It
can be argued, and indeed has been argued by Professor Ronald
Dworkin, that the sanctity of life is actually honoured when we
give due weight to human suffering, human dignity and human self-determination,
including what Onora O'Neill called principled autonomy, as Professor
Gill reminded you. Indeed, in the much older, moral tradition
of the Stoics, it was a crowning glory of human life, a source
of liberty and dignity and an insurance against oppression by
man or nature that we have the option of putting an end to misery
and pain. On this view, it is proponents of the Bill who have
the proper respect for human life. I do not want to insist upon
that. The point remains that few, if any, philosophers would say
that a simple, unqualified, three-word principle, sanctity of
life, can by itself silence those other considerations and I notice
that, in law, many recent cases, especially those of Bland and
Burke, are ones in which eminent legal authorities have taken
the same view. There is a quite abstract but important point here,
I believe, about very simple principles. Often their force derives
from restricting attention to central or normal cases where that
force can get an inertia of its own and can go on to inspire reactions
to cases that are not central and not normal. A prohibition can
gain a sort of symbolic horror which carries over to cases where
its rationale is actually absent. To illustrate what I mean, perhaps
I may remind your Lordships of the well-known mountaineering example
of the film, "Touching the Void" and the difficulty
people had in coming to terms with the idea that the forbidden
action of cutting the rope was, in fact, the rational, compassionate
and ultimately the successful and appropriate thing to do. It
does not matter if you do not know about the example. I can return
to it. Lord Joffe's Bill concerns only the extreme and fortunately
atypical case of competent adults suffering unbearably as the
result of terminal illness. Applied to such emergency cases, as
we might call them, simple, moral reactions nurtured on a diet
of more ordinary cases may be extremely unreliable. My final point
on the sanctity of life is also a short one. The issue attracts
a certain rhetoric. We should not play God with life and death,
we must be patient before providence, we must put up with our
allotted suffering, soldier on, take what fate has in store for
us. Such thoughts have a historical pedigree, although many philosophers
believe that they met their Waterloo 250 years ago in the famous
essay on suicide by David Hume. In the present context, we must
remember only that people still impressed by such ideas may indeed
choose not to exercise the liberties this Bill would give them,
but it is no part of our political or legal culture to enable
them to force those views on others. If it were, we would be imprisoned
by fatalism, unable to ameliorate our lives in countless ways.
We would not have inoculations or anaesthetics nor, for that matter,
houses or umbrellas. My second topic is the omissions/commissions
doctrine, the division between failing to attempt resuscitation
or other intervention and actually intervening to assist the process
of dying. Some much respected philosophers have denied that this
distinction carries any moral weight at all, and to my great surprise
the view was heard from witnesses from the faith community this
morning. I disagree. I think that division is serviceable enough
in some cases and there can be pragmatic reasons for using it.
Again, however this is not always true. Its moral significance
can lapse and it lapses in cases where we do something by doing
nothing, although the description then becomes moot and may appear
paradoxically. Philosophers are familiar with the concept of levels
of action in which you do something by acting, or equally do something
by refusing, refraining or failing to do anything. You can betray
someone by saying nothing, you can condemn the lorry-driver to
burn to death by standing aside, and sometimes it is happenstance
whether it requires an act or an omission to bring about a result.
When that is so there may be no moral difference between exploiting
the happenstance and doing nothing or instead doing what is needed.
In October, your Lordships heard from Dr Wilkes, Chairman of the
BMA Ethics Committee, answering the Earl of Arran, and from Dr
Lloyd, answering Lord Taverne, that the public is mistrustful
of the acts/omissions distinction in this context. I think the
public shows wisdom, especially when, even if death is coming
soon, doing nothing results in slow death by thirst or hunger
or choking on saliva, when doing something could mean a swift
and desired sleep. As has been suggested to you and will shortly
be emphasised by my colleague here, it is surely discriminatory
and unjust to allow deliberate omissions, as at present the law
does, when a dying patient is lucky enough to be able to obtain
merciful release, by people standing aside, but to forbid parallel
commissions when he is not so lucky. In fact, the acts/omissions
doctrine is more often used to provide a moral comfort zone for
agents who believe they can shelter behind it than it is to indicate
anything we are likely to wish for ourselves and those we care
for. The third point, the final point, I would like to touch upon
is that of autonomy and the relation between the patient and the
doctor.
Chairman: We will have to stop for a short period
for a vote in the House.
The Committee suspended from 2.53 pm to 3
pm for a division in the House.
Q1811 Chairman: Would you
like to continue?
Professor Blackburn: If I could remind you of
the first two points, one was about the sanctity of life and the
other was about acts and omissions. The third and final point
I would like to touch upon is that of autonomy and the relation
between the patient and the doctor, and this is my fire-fighting
point, as it were. This arises because I have heard this issue
described as if it is a zero-sum game, a contest, in other words,
either the patient gets autonomy and the doctor is downgraded
to a servant of the patient's wishes or vice versa. I believe
I am right, and I stand open to correction because this is not
my area of expertise, that mistakes the logic of the situation.
As I read it, the proposal gives a liberty to both the patient
and the doctor. The patient becomes free to ask for an intervention
and is largely reassured in advance that he, or she, can procure
it should they wish it. They also know that in asking for such
an intervention they are not asking somebody else to break the
criminal law. The doctor becomes free to provide the service,
or not, according to judgment and conscience, but again without
fearing the very real shadow of the criminal law. A corollary
of that would be the predictable increase in trust between patient
and doctor, of which you may have actual evidence from other countries.
What the doctor loses is only a legal fig-leaf for standing aside
and doing nothing, and I can sympathise with those desiring that
protection or that comfort but the point of the Bill is that this
is a fig-leaf that should not be desired or afforded. The only
real loser, in terms of power, is of course the criminal law,
although what it loses, if that is the word, in the range of its
clutches it gains in terms of clarity and strength of principle.
Thank you very much for your attention.
Mr Havers: My name is Philip Havers. I am a
barrister and amongst the specialist areas in which I practise
are human rights law and medical law. I have been asked by the
British Humanist Association to say something about the current
legal position in this area and the interrelationship between
the legal principles of sanctity of life, on the one hand, and
personal autonomy, on the other, as they apply now to end-of-life
decision-making. I am delighted to do so because, although I am
not a member of the Association, my views on this Bill coincide
with theirs. I represented both Dianne Pretty and Ms B, their
cases happened, curiously, to coincide in time, and the experience
of doing so has led me to the very clear conclusion that the present
state of the law which permitted Ms B to die is profoundly unfair,
because it did not permit Dianne Pretty to do so. So where are
we now? The present legal position, I think, can be summarised
as follows. First, if, no matter what your state of health is,
you want to die, you can do so and you can do so lawfully provided
that you and you alone carry out the act which causes your death,
see the Suicide Act. Secondly, if you are already dying or are
close to death, you can refuse treatment which would otherwise
keep you alive; this has long been the law. Thirdly, if you are
not dying but you are only being kept alive artificially, you
can insist that the doctors turn off the life support system with
the result that you die. If physically you cannot commit suicide
on your own because of your terminal illness then you can go abroad
to Switzerland and get someone there to help you to die. Otherwise,
you have no option but to endure the pain, the suffering and the
indignity that you so desperately wished to avoid. In short, what
it comes down to is this. Provided you are not too badly physically
affected by your illness, you have the right to end your life
when and how you choose. Even if you are but you can afford and
you can find someone to help you to go abroad, you also have that
right, but if your terminal illness means that you are physically
unable to end your life yourself and if you can neither afford
nor find the help to go abroad then you have no such right. It
seems to me that this position is difficult if not impossible
to justify. I have, of course, studied Lord Joffe's Bill and I
have been struck by the many safeguards which it contains, not
just individually but cumulatively. No other end-of-life decision-making
practice or procedure, for example, the withholding or refusal
of life-prolonging treatment, is underpinned by so many safeguards
let alone legislative safeguards. It seems to me, for what it
is worth, that those safeguards should provide a very high level
of both reassurance and protection for the vulnerable. I would
also like to touch briefly on the way in which the courts have
been responding, under the common law and the European Convention,
to what plainly they regard as people's wish now to have control
over how and when they die. In the Pretty case, the European Court
of Human Rights went out of its way to state that, and I quote:
"The very essence of the Convention is respect for human
dignity and human freedom" and to stress that the protection
of that right by allowing people to choose how and when they die
does not in any way negate the principle of sanctity of life.
This approach is also reflected under the common law. For example,
in the recent case of Burke the GMC, which was concerned with
whether a patient can insist on being provided with life-prolonging
treatment by his doctors, it was held that his decision as to
where his best interests lie and as to what life-prolonging treatment
he should or should not have is, in principle, determinative.
The judge stated: "Important as the sanctity of life is,
it has to take second place to personal autonomy." In the
even more recent case of Re Z, the court refused to make an order
prohibiting Mr and Mrs Z from going abroad to Switzerland so that
she could obtain help to die, because to do so would interfere
with her right of personal autonomy. "It seems to me"
said the judge "that, within the context of a person of full
capacity, whilst the right to life is engaged it does not assume
primacy over the rights of autonomy and self-determination."
I believe that the Bill would bring an end to the unfairness,
and indeed discrimination, experienced by Dianne Pretty and others
like her whilst protecting those who may be vulnerable. Thank
you.
Chairman: Thank you.
Q1812 Lord Turnberg: Thank you very
much for the presentations, which I found very interesting. You
have obviously thought very deeply in the British Humanist Association
about the issues and come to some very clear conclusions. I just
want to press you a little about the certainty which you have
in this area and whether you think really there is no downside
to the passing of this Bill. It is an area which of course excites
all sorts of controversy and people have different views from
yourselves, as you are aware. For us, it would be helpful, for
me anyway, if you could tell us something about the possibility
that some of it may not be absolutely clear-cut. I am particularly
interested in the issue of autonomy, personal autonomy and principled
autonomy, and the business about whether autonomy is absolute
when what you do has an influence on others. We heard this morning
and we have heard elsewhere the issue that my autonomy may have
an impact on others which was inadvertent, which I have not intended
but which the law might allow, and I think autonomy under those
circumstances is not absolute. Really I wish to probe you on whether
you are absolutely certain in your view, whether you think there
is any downside to this Bill and, in particular, about the autonomy
issue?
Professor Blackburn: I have talked about a number
of philosophical issues. There are, if you like, sociological
issues, issues of prediction. For example, would this Bill, if
implemented, make one change or other, would it create more victims
of some kind or impact widely upon the vulnerable or destroy patient
trust in doctors? Those are questions which may be ones of speculation,
partly ones of evidence from other cases, partly ones where one
can make an educated guess, but as a philosopher I have no expertise
in solving those questions. I cannot state positively that there
will be no downside. I can imagine downsides to almost anything
in human life. That is the first part. The second part about autonomy
I think I can be more definite about. You are right, of course,
there is no absolute principle of autonomy, people want to do
things that they have to be forbidden from doing, there is no
doubt about that. The famous John Stuart Mill Harm Principle is
the leading principle which governs us there. I think, in this
case and using Onora's distinction between personal autonomy and
principled autonomy, we are dealing with principled autonomy,
the desire not to be a burden, the desire not to be undignified,
the desire not to suffer. Those are not, as it were, just whims
which can be overturned if people do not like them. It seems to
me they are a very, very important part of people's sense of their
own worth, their own dignity, of the sense of the story that their
own life makes. One might be very proud of being self-sufficient,
of not being a vegetable, of not being comatose, of not being
a great expense and burden to people around one, and people who
are proud of that, contrary to what I think was implied at various
times this morning, particularly by Professor Gill, are not the
vulnerable. You do not make yourself vulnerable because you are
afraid of being a burden to other people. I do not regard myself
as a vulnerable member of society but certainly I am duly afraid
of being a burden to other people in various ways. My pride would
rebel against it and I would regard the narrative of my life as
having gone much worse if it ended in these terrible ways. So
I think we are dealing with principled autonomy. I do not think
the decision, were it ever to come to that, that I might make
or, God forbid, my wife might have to make and my doctor to terminate
dying, suffering, intolerable moments of my life is a decision
which has the kind of John Stuart Mill impact on other people,
that is, by giving it to me you harm others. Any harm to others
would have to be through such an indirect and improbable chain
of causation that I think it would be wrong for public policy
to take any notice of it.
Q1813 Lord Turnberg: Can I be a little
clearer. It is not the act of personal autonomy in the way you
describe it which would have necessarily a negative impact on
others, it is the passage of the Bill which might. It is that
which concerns me. If we had a Bill which ensured the sort of
circumstance you describe, which I think is entirely laudable,
would it have a negative impact on others who felt, as we have
heard from several groups, that they would feel vulnerable or
more at risk and feel that they were likely to be affected by
this, albeit perhaps without good foundation but we are not sure?
Professor Blackburn: Without the safeguards,
I believe there could be a risk; it was described this morning
as a slippery slope. With the safeguards in place and in the light
of the experience you are gaining from the operation of such Bills
in other countries, I think the risk is very, very small.
Q1814 Bishop of St Albans: My Lord
Chairman, if I might ask Professor Blackburn, it is really an
attempt to be as philosophical as possible so please do not look
at the uniform I wear or misread what I am about to say, it is
about the notion, the concept, of sanctity. Would you feel at
any point that the word itself should be bracketed out of any
kind of language in this area?
Professor Blackburn: It is a dangerous word;
it is a word that pushes buttons. I think it has to be used with
great care. The interpretation of the principle of the sanctity
of life is not in anybody's mind a simple matter. No, I think
it is a good word and I would be sorry to see it lost. I am not
so different from some Unitarian colleagues in this. I think there
are some things which deserve treating as sacred, as it were.
Q1815 Bishop of St Albans: I am trying
to be very sensitive to your particular position.
Professor Blackburn: You do not have to be.
Q1816 Bishop of St Albans: No, but
it seems fair enough to be. Could you say then what meanings you
would give to the word sacred from your particular position?
Professor Blackburn: I think there are some
things which are so shocking that they rule themselves out of
any decent person's decision-making. There may be quite surprising
examples. In one of my books, I give the example of an advertising
concern which had the ambition of putting up a satellite in the
night sky, about the apparent size of the moon, which could reflect
advertising slogans, like Coca-Cola, or whatever, onto earth.
That strikes me as a deeply shocking and, if I can use the word,
impious suggestion. It is a distortion of our place in the cosmos,
which would be attacked I think with repugnance by all right-thinking
people and one could use the word impious and use the word desecration
of such a proposal. It is not obvious why, because it would be
very difficult to argue it on the grounds of harm, it might even
do some good if it advertised Aspirin, or something. It is a delicate
matter. I do think there are issues like that and I can see that
they hover in this area so it is a very serious area.
Q1817 Bishop of St Albans: Could
I push on a bit further on the word revelation, or disclosure,
or whatever. Accepting that you personally would not perceive
the use of that word in any sense as involving God or any concept
of God at all, do you think that, again, it is a word that is
evacuative of meaning if it is used in current society, or do
you think it is still a word that we can use with a degree of
philosophical integrity?
Professor Blackburn: I think I am less hospitable
to that, if revelation is the word that we are talking about.
No, I do not like that word, it is used so often and I think so
centrally as a device for closing off things.
Q1818 Bishop of St Albans: It is
a trump card word?
Professor Blackburn: I am trying not to use
it in those terms at all. It is a device for saying "Look,
my texts have spoken and that's the end of it," which I dislike.
I have got to dislike it; it is my profession to.
Q1819 Bishop of St Albans: Of course;
to think about things. Thank you very much.
Ms Stinson: May I make a brief comment on that.
Personally, I do not particularly like the word because of the
implications it carries with it, but I think that a key belief,
if you like, of Humanism is the importance of life, and we take
the importance of life to exactly the same level as I think a
religious person would take it when they talk about the sanctity
of life. Life is crucially important. We do not end life unless
there are exceptional reasons. In fact, from the humanist point
of view, since we do not believe in an after-life, we belive we
have got only the one life. So it is bound to be extremely important.
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