Examination of Witnesses (Questions 1971a
- 1979)
TUESDAY 18 JANUARY 2005
MS MICHELE
WATES, DR
JIM GILBERT,
PROFESSOR JOHN
FINNIS and DR
FIONA RANDALL
Q1971a Chairman: Thank you very much
for coming to help us this afternoon. I think that, possibly,
the name plates we have provided for you do not have your correct
titles. I think I am right in saying that both Mr Gilbert and
Ms Fiona Randall are qualified medical practitioners?
Q1971b Chairman:
Dr Randall: Yes.
Q1972 Chairman: First of all, I should
explain that the evidence that you help us with will be taken
down and you will get a chance to look at the transcript to see
whether it accords with what you thought you said. In due course,
the corrected transcript will be appended to our report and will
become public as a document when that report is published. I would
invite you, in what order you think appropriate, to give a short
introduction of yourselves and your points of view, and then the
Members of the Committee will wish to ask you questions about
particular matters in your area that they would like further help
on. Dr Gilbert?
Dr Gilbert: My name is Jim Gilbert and, as you
say, I am a qualified medical practitioner, consultant and medical
director of a palliative care service in Devon since 1992, during
which time, as a service, we have looked after approaching 10,000
patients with advanced, incurable, progressive diseases, and,
importantly, the families and those close to them. I have served
on the Association for Palliative Medicine, which is the Hospice
Doctors' National Association Ethics Committee. I have published
on end-of-life care and ethics over the years and currently chair
the Royal Devon and Exeter Hospital Clinical Ethics Reference
Group. For the Association for Palliative Medicine Executive Committee,
together with my colleague Dr David Oliver, I conducted a survey
of UK palliative care doctors in 2003 regarding attitudes to euthanasia
and physician-assisted suicide.
Q1973 Chairman: You are using the
same definition as I am inclined to use: physician-assisted suicide
is where the patient himself or herself self-administers the prescription
whereas euthanasia is where the doctor acting on a request performs
the necessary action to bring the patient's life to an end?
Dr Gilbert: Exactly. This survey was referred
to briefly this morning, and I have a copy, in case you have not
got it for the record here, of both the questionnaire and all
the responses. We sent out 726 of these to all those on our database
of UK practising hospice doctors and it was interesting that we
received, despite all the busyness of those individuals, over
600 replies without any prompting over the course of just a few
weeks. Briefly, the results of this survey showed over 90 per
cent opposition to legislation permitting euthanasia or physician-assisted
suicide. Both options were put in the survey. I have got full
details of the numerical results and the comments that came with
that for the Committee to look at later. It seems to me that with
this Bill there is a clear expectation that assisted dying is
to be offered in the context of palliative care and that, therefore,
the overwhelming opposition of hospice doctors as evidenced by
this survey seems an important consideration. I would like to
comment briefly on why I think this might be. Firstly, I would
certainly not suggest that palliative care can in all circumstances
relieve all suffering. I know that has been an important question
for the Committee to have answered. Within existing law, doctors
do seem confident, however, that physical symptoms can be treated
fully in the last few weeks of life, and I know that in previous
sessions of this Committee it has been recognised that existential
suffering and the fear of dependence may be much more relevant
to requests for assisted dying than uncontrolled symptoms. In
these circumstances, my belief is that doctors wish to reassure
people unequivocally who believe themselves to be a burden and
to emphasise the value of their continued living rather than giving
them a psychological if not physical push from the bridge by agreeing
to help them end their lives. Finally, from me, a word if I may
about prognosis and prognosticating—the art of so doing—because
it is far from a science. It is clearly envisaged that an important
safeguard has been included in this Bill by restricting assistance
in dying to people with a short prognosis. Much reassurance seems
to have been taken from this restriction. I believe that doctors
working in palliative care are uniquely well positioned to see
the fallacy of this apparent safeguard. Paul Glare's earlier evidence
to this Committee demonstrated great inaccuracies in doctors'
honestly estimated prognoses, and given the injustice that will
be perceived by those in favour of assisted dying in denying such
assistance to those people who deem themselves to be suffering
unbearably as a result of chronic rather than terminal illness,
there seems good reason to believe that an estimate of a short
prognosis will be easily obtainable from a well-intentioned but
perhaps misguided pair of doctors willing to stretch a point in
order to comply with what they perceive to be patients' wishes.
In summary then, from me, palliative care doctors are overwhelmingly
opposed to the provisions of this Bill. It seems both unjust and
unworkable to me to restrict assisted dying to those with a short
prognosis, and the major relevant suffering (existential suffering
and the fear of dependence) may lie out-with the remit of health
care and the competence of doctors to judge.
Professor Finnis: I am John Finnis, Professor
of Law and Legal Philosophy at the University of Oxford and a
Fellow of the British Academy. I have worked quite a lot on moral
and even theological matters, but my academic work at Oxford is
on public policy and law, in which matters private morality and
belief are not the issue but, rather, the interplay between legal
principles and social consequences. It is in that capacity that
I want to give evidence today. At present, there is a clear principle:
never intend to kill the patient; never try to help patients to
intentionally kill themselves. That is the law, it is the long-established
common morality, it is the ethic of the health care profession
and it is Article 2 of the European Convention on Human Rights,
and so forth. There is a "bright" line, and though like
other laws and principles it is not invariably respected it is
not in the least artificial or brittle; it rests on a rational
principle that a person's life is the very reality of the person,
and whatever your feelings of compassion you cannot intentionally
try precisely to eliminate the person's reality and existence
without disrespect to the person and their basic equality of worth
with others. I think that that principle underlying the clear
line is sound and right, though I am not here primarily to ask
you to agree with it. Rather I am here to compare the present
situation with the situation once any form of euthanasia or legalised
assistance in suicide is admitted. In the new situation, any attempt
to draw the line is necessarily artificial. The principles on
which any attempted line would be based undermine each other and
subvert the attempt to hold a line. If autonomy is the principal
or main concern, why is the lawful killing restricted to terminal
illness and unbearable suffering? If suffering is the principle
or concern, why is the lawful killing restricted to terminal illness?
Why must the suffering be unbearable if there is real and persistent
discomfort? If suffering is unbearable, why should one have to
wait for 14 days? If suffering and terminal prognosis are the
concern, why is relief restricted to those who are capable of
asking for it? Each of those questions is not simply a reason
for doubting the rationality of any proposed line alternative
to the present principled lines, each of the questions is also
a reason why there will be much more abuse and secrecy and underground
killing than at present, because each of those questions can and
will be asked by any doctor faced with a patient demanding euthanasia
or assistance in suicide or with a patient not demanding it but
suffering or confronting an early death. Patient autonomy pushes
the doctor to accede to requests that do not meet the legal criteria
of terminality or suffering. Suffering, or terminality, and medical
responsibility each push the doctor to set aside the requirement
of voluntariness. All this will cause eternally reinforced and
profound changes in medical and professional ethics, so that intentional
death-dealing becomes a clinical option and, of course, also a
hospital management option and a nursing home option. Now, you
as a Committee have been to the Netherlands and read the government-sponsored
and government-commissioned reports in 1991, 1996 and 2003 investigating
the practice of euthanasia in that country. You may have in mind
the figures that can be found in the tables in these reports but
they are known to extremely few people in this country, and I
would like to put them in evidence publicly today. The latest
figures can be found extracted from the reports and set out in
scholarly fashion by the Dutch medical practitioner Dr Richard
Fenigsen in the journal Issues in Law & Medicine, volume
20, summer of 2004. The two earlier surveys are analysed in depth
by Professor John Keown in his Cambridge University Press 2002
book, Euthanasia, Ethics and Public Policy, Chapters 9-13.
I will restrict myself generally to the 2001 figures published
in 2003, after Keown's book. The population of the United Kingdom
is a bit less than four times that in Holland, but the death rate
here is a bit more than four times the size, so it is reasonable
to multiply the Dutch figures for euthanasia by four to get a
sense of the Dutch picture if it were replicated here. Taking
the Dutch 2001 figures, based on their own government-sponsored,
ministry-commissioned tables, generated by confidential interviews
with hundreds of Dutch medical practitioners and questionnaires
to many thousands of medical practitioners who had signed death
certificates, there would be here in the United Kingdom nearly
15,000 deaths per annum by active, voluntary euthanasia and nearly
half of these would be done without the legally required procedures.
There would be over 1,000 assisted suicides, at best about half
of them in accordance with legal procedures. But then there would
also be nearly 4,000 cases of active, involuntary euthanasia;
that is, lethal injection without the request of the patient,
all totally illegal and uncertified. There would additionally
be over 11,000 cases of lethal overdose of painkillers with intent
to cause death, and none of these would be certified. These figures
are so embarrassing that the authors of the 2001/03 report omitted
a line of inquiry they had pursued in their own previous reports,
which had revealed in 1991 that over 70 per cent of the deaths
caused by lethal overdoses of painkillers with intent to cause
death were without the patient's request or knowledge. In other
words, there would be, in the United Kingdom, over 30,000 cases
per annum of death intentionally and actively caused by physicians,
of which only about 7,500 would be in accordance with the law's
procedure. Of these 30,000, over 12,000 would be without the patient's
knowledge or consent—not to mention at least a dozen cases
a year when newborn babies are actively euthanised without the
consent or knowledge of their parents out of a total of about
400 euthanised newborns killed by lethal injection. Besides all
that, there would be over 70,000 cases where life-sustaining treatment
is withheld or withdrawn with the explicit intention to cause
death. That is 70,000 plus out of about 110,000 cases where life-sustaining
treatment is deliberately withdrawn or withheld where otherwise
it might have been given. So we are looking at well over 100,000
cases of active or, so-called, passive euthanasia in the full
sense of an intent to bring about death, and of these only about
7,000 or 8,000 are in accordance with the law's requirements—projected
future euthanasia law in assistance in dying—while tens,
if not scores, of thousands of these are not voluntary. Those
are the figures scientifically estimated by the Dutch government's
appointed experts simply multiplied by four to get a rough UK
figure. The authors gloss over these figures in their soothing
commentaries. I can imagine that they may even have glossed over
them in their discussions with you, possibly, though their 2003
report repeats the eye-opening assertion that they made in 1996:
namely, it is the patient who is now responsible in the Netherlands
for avoiding termination of his life; if he does not wish to be
killed by his doctor then he must state it clearly orally and
in writing, well in advance. So the public policy point I want
to make is that none of this is accidental or can reasonably be
assumed to be peculiar to Holland. The interplay between patient
autonomy, suffering, prognosis, patient embarrassment, medical
autonomy and the hidden influence of relatives and carers with
their own autonomy and interests, in the context of an officially
sanctioned devaluation of human life under conditions of disease,
disability and disablement is, inevitably, I should say, a web
of forces making it impossible to establish and hold an effective
line once the present clear line and principles are abandoned.
The violation of the right not to be killed, the right not to
be put in vivid fear of being killed and the violation of the
right not to be pressed into suicidal decisions would therefore
become, I am confident, more widespread and more burdensome—I
suspect enormously more burdensome—than the present violation
of the autonomy rights of a relatively few that is alleged (I
think fallaciously) by supporters of the Bill you are considering.
Dr Randall: I am a consultant in palliative
medicine and I have been since 1982. I have served on the BMA
Ethics Committee and I have a Philosophy PhD in health care ethics.
More recently I have been involved in working with the Department
for Constitutional Affairs on the Mental Capacity Bill; I was
asked to attend that from the Association of Palliative Medicine
and that has been fascinating and worthwhile. I would like to
take two sets of things. The first is about the overall impact
on patients of legalising assisted suicide and euthanasia through
this sort of Bill, and the second is about the role of doctors
in this Bill. The first set of points to do with the overall effect
on our patients. I think my overwhelming anxiety about the legalisation
of PAS and euthanasia through this Bill is that it will, I think,
increase the suffering of the terminally ill and not decrease
it. My reasons for thinking that are as follows: that increasingly
in recent years I have found that patients perceive they are a
burden; that they are valueless because they can no longer do
things; that they need care. A lot of their distress, after most
physical symptoms have been alleviated, is emotional; that they
feel useless and a burden. My worry is that if this Bill were
to go through assisted suicide and euthanasia would become a treatment
option, so the option would have to be presented to all terminally
ill people who were believed to be in the last months of life.
So for the rest of their natural life they would be faced with
this enduring choice: as to whether they should "go for"
assisted suicide and euthanasia on the grounds that they have
become a burden to their families because they perceive that they
are useless. We live in an environment where autonomy—the
ability to make your own choices, be yourself, do your own thing,
be independent—is so highly valued now that patients who
have lost their independence so easily feel valueless and a burden,
and being faced with a constant choice for the last months of
your life as to whether you ought to opt for assisted suicide
and euthanasia, I think, would be a very distressing condition
to put patients in. So many of them would feel all the time: "Should
I do this? Is this now too much for my relatives? Is the nursing
home eating up my money?" (That is a more minor issue—it
should not be an issue but is still often an issue.) So I think
that considering that a small minority of patients would be expected
to actually choose assisted suicide and euthanasia, the collateral
effect on the great majority who would not, in the end, choose
it but would be presented constantly with "Ought I to choose
it?", I think, would be an increase in suffering because
of the agonising choice which they are constantly presented with.
Going on from the general effects, I think there are logical consequences
of this proposed legislation which would follow which I, as a
citizen, feel are undesirable. There are two logical consequences
which follow, which I think go on from what John was saying. The
first is, if we are saying that the entitlement to assisted suicide
and euthanasia—and that is what this Bill is about; it is
about giving these people an entitlement if they meet certain
criteria to assisted suicide and euthanasia—is thought to
be a benefit for those who are terminally ill, logically, it must
be extended to others who feel they are suffering unbearably but
are not in the last few months of their life, because otherwise
it appears very unjust that this apparent benefit can be gained
only when it is believed that you are in the last months of your
life, and not for instance earlier when you might be in the earlier
stages of Huntington's career, the earlier stages of motor neurone
disease, or the earlier stages of diseases which may have a very
long process of increasing disability. So the entitlement would
logically have to be extended outside the terminal period of life
because otherwise it is inequitable if you think it is a benefit.
That is a logical consequence, so I think it would be followed—not
because people are bad and people are nasty but because it logically
follows by reason. The other logical consequence that I think
is a bad thing for society is if this benefit of an entitlement
to assisted suicide and euthanasia for unbearable suffering is
to be there for competent patients how are you logically going
to deny this to incompetent patients who you believe are suffering
because of distress due to Alzheimer's disease? Some Alzheimer's
disease patients actually appear very distressed and it is difficult
to know what they are feeling, but if people judge that they really
were suffering then why should they be denied the benefit, if
you think that is what it is, of having their life ended? So,
logically, there will be this extension, as John has said has
happened in the Netherlands, towards this for the incompetent
patient, and that is not because people are nasty people, it is
because it would be the way that your thinking would go. So I
think the logical consequence of this sort of Bill is extension
to non-terminal illness and extension to incompetent patients.
Both of those extensions would actually concern me for society
overall. The second thing I would like to say is to do with the
role of doctors in this Bill. Doctors have a huge role in this
Bill. On the one hand you may say they have power and with that
goes a tremendous responsibility in this Bill. If we look at the
so-called doctor-patient relationship, and what the effect might
be on that of legalising assisted suicide by your doctor or euthanasia
by your doctor, doctors are really expected not to harm their
patients. It is a very strong principle for us. Society normally
thinks that intentionally killing another person is a harm. I
really think there is a threat to the doctor-patient relationship
and the fundamental trust in this if your doctor is expected to
be the person who assists you to commit suicide or give you a
lethal injection. Quite often, at the end of life, when patients
have had what has turned out to be the last injection, relatives
erroneously think you have bumped them off and you have not. If
this becomes legalised, how many more people are going to think
that when you are in care somebody is going to come and end your
life? Once that thought gets hold it will be enormously difficult
to eradicate it. So my worry is towards the trust in the doctor-patient
relationship—it is a big problem. In the country at the
moment there is terrific anxiety about doctors misusing their
powers in the ability to shorten life—terrific anxiety about
this—so I think legalising this manoeuvre towards allowing
doctors to give lethal injections is very bad for the confidence
of patients and their doctors. Lastly, looking at it from the
doctor's point of view: this Bill expects us to decide whether
the patient is suffering unbearably. I cannot decide whether a
patient is suffering unbearably because only the patient can say
that. I cannot be expected to judge what for this particular individual
is unbearable suffering. Then, as a doctor, I am expected to judge
whether this patient is in the last few months of their life.
It is enormously difficult to do that. Paul Glare's evidence I
know you have had, of some studies that have been done which show
that however hard you try our ability to guess how long someone
is going to live is very limited, and yet that is what we are
supposed to do in this Bill. After we have made these extremely
difficult judgments, one of which, in fact (the judgment of suffering
unbearably), I think is impossible, on which is based an extremely
serious consequence—the ending of a patient's life—somebody
will come after us and will judge whether we did the right thing
or not. So we are asked to make judgments that, I think, are extraordinarily
difficult and then judged by somebody else, the Commissioner,
and if they think our judgment was flawed in any way it goes before
the coroner, and then goodness knows what else happens. So I think
there may be an enormous reluctance on behalf of doctors to get
themselves into that position. I find myself wondering why on
earth is the Commission scrutinising this after the patient is
dead? Why not before the patient is dead? In summary, I would
say I think legalising physician-assisted suicide, euthanasia,
by means of this Bill has more adverse consequences for the whole
of society than it does benefits. Thank you.
Ms Wates: My name is Michele Wates, I am an
independent researcher and writer and mainly my work has been
around the relationship between disability and family life. I
am speaking today as a person with a progressive illness. As long
as our society has had written laws the central tenant has been
to protect people, especially those who may be physically and/or
mentally vulnerable, from being intentionally—or for that
matter unintentionally—killed. I believe that this law would
turn that principle on its head and establish in its place the
principle that a person may invite others to kill them. I think
this would represent a central shift in the mores of our society.
Media attention has been overwhelmingly focused on a small number
of exceptional cases of people who are not in a position physically
to take their own lives, insisting that they should have a legal
right to be assisted in committing suicide. It is extremely important
that lawmakers do not overlook the much larger numbers of people
who feel that their existence and their right to support would
be put at risk in the climate established by any such change in
the law. In my opinion the legislation that we currently have
is both necessary and adequate to deal with the complexities of
individual situations. A relative, a friend or a care-giver who
claims to have killed someone on compassionate grounds should
be able to satisfy the courts that this is indeed the case and
I believe that the law as it stands is flexible enough and that
those who administer justice are astute enough to cope with exceptional
circumstances, as recent judgments have demonstrated. The proposed
legislation draws a line that I find quite disturbing between
those who "qualify" to be assisted in killing themselves
and those whom society would seek to prevent from committing suicide.
Some will be seen as clearly qualifying, in other cases it would,
I believe, be unclear as to whether people qualified or not, while
others definitely will not be seen as qualifying. Whether or not
a person is deemed to qualify will deem how the medical profession
is required to respond to their needs. So take the following scenario:
imagine that a husband and wife have serious financial problems
and lose their home as a result. Both of them become depressed
and the husband goes to the doctor to say he is suffering unbearably
and feels suicidal. That doctor is bound to seek to help him recover
from his depression and should also point him in the right direction
to get help with finding somewhere to live. Imagine that the wife
is also depressed as a result of the same circumstances that have
caused her husband's depression, and she too feels suicidal. She
approaches a doctor and a solicitor who is known as a supporter
of assisted suicide and informs her that she is suffering unbearably.
Because she is also able to show that, unlike her husband, she
has a terminal illness, she is not treated for depression but
two weeks later is lawfully killed. Her husband, at her request,
is not informed until after her death that that is her intention.
I think we would do well to be extremely cautious about the language
of anti-discrimination practice, choice and human rights of the
individual that are frequently used by many of those who support
assisted killing. To see where this might lead we need look no
further than the example of the Netherlands. "Over the past
two decades the Netherlands has moved" (I am quoting now
from an article by Marilyn Golden, who is an American author)
"from assisted suicide to euthanasia, from euthanasia for
the terminally ill to euthanasia for the chronically ill; from
euthanasia for physical illness to euthanasia for psychological
distress and from voluntary euthanasia to non-voluntary and to
involuntary euthanasia. Once the Dutch accepted assisted suicide
it was not possible legally or morally to deny more active medical
assistance to die—ie euthanasia—to those who could
not effect their own death. Nor could they deny assisted suicide
or euthanasia to chronically ill who have longer to suffer than
the terminally ill, or to those who have psychological pain not
associated with physical disease. To do this would be a form of
discrimination. Involuntary euthanasia has been justified as necessitated
by the need to make decisions for patients not medically competent
to choose for themselves." This is quoted from an author
called Hendin[1]
in 1996 who describes, also, how for a substantial number of people
in the Netherlands physicians have ended their lives without consultation
with the patients. As a disabled person I have lived for many
years with the knowledge that society's view of the value and
acceptability of a disabled person's experience may be quite different
from my own. A person who wishes to die because they have come
to regard their life as valueless and lacking in dignity as a
result of disability or illness may find that they have the acquiescent
agreement of those around them, including people who may be their
medical professionals. It is widely assumed that it is impairment
and illness even of themselves rather than the social and physical
environment in which impairment and illness are experienced that
leads to suffering and loss of human dignity. I know from personal
experience that the quality of my life is not determined by the
progress of my illness and extent of my impairment so much as
by the access that I have at that particular time to assistance,
to equipment, to appropriate environments, to accessible transport,
etc. I think it is also important to acknowledge the changing
social context within which this debate is taking place and to
be open about the fact that with an ageing population society
has a vested interest in not having to pay to support increasing
numbers of people who are disabled and/or sick. It is insufficiently
acknowledged that there is at least a perception of competing
and conflicting interests in this matter. We should not be naïve
about this. Carers and terminally ill and disabled people may
have different perceptions and different interests. This is not
to make judgments, it is to face facts. The Bill, in effect, I
believe, wishes these complexities away, saying merely that the
physician should have satisfied himself that the request is made
voluntarily. I believe that a pressure on those who find themselves
"qualifying" (and that is a term I, personally, find
chilling in the terms of the Bill), whether this pressure came
from outside themselves or whether the pressure had been internalised,
would, in some cases, be an intolerable pressure and that people
who did not want to die would feel that it was incumbent upon
them to seek death. It is not enough that the Bill says that the
physician should have satisfied themselves that the request is
made voluntary; the pressures that people are under will in many
cases be internalised and, therefore, no longer open to scrutiny.
I think it is significant that the Disability Rights Commission
in the UK is unanimous in its opposition to the passage of this
Bill. So that if we are talking of the recognition of rights that
must weigh for a lot. Members of the Committee may also be aware
of similar opposition by disabled people in other countries. I
think that the proposed legislation would erode that most fundamental
principle that human beings value the lives of friend and stranger.
One of the most distinctive and heart-warming features of human
society is the value placed on another human life and the steps
that people will take to reduce suffering and to preserve the
life of a fellow human being. To erode that principle, as I believe
the proposed legislation would do, is to make the world a bleaker
and more dangerous place for all of us.
Chairman: Thank you very much.
Q1974 Earl of Arran: I have a question
for Dr Gilbert. I will ask this not in an accusatory way but more
of a rhetorical way. Would you not accept that in spite of the
most expert delivery of palliative care man can offer at the moment,
there is still, nevertheless, a small group of people whose intractable
distress or unacceptable suffering cannot be alleviated?
Dr Gilbert: I would accept that. I think, however,
my general medical experience would make me also observe that
this is by no means confined to palliative care or to people within
a few months of the end of their lives. For instance, there are
people with arthritis, for instance, who find it unbearable that
their lives are restricted by the pain that they have to endure
chronically, perhaps, for many, many years. I would not claim
for a moment that palliative care has the answer to all that,
nor indeed that medicine has the answer to all that. In the end,
I think it is inescapable that unbearable suffering lies in the
mind of the individual concerned and so no palliative care, nor
medicine, can alleviate all suffering.
Q1975 Earl of Arran: What do you
suggest should happen to that small group of people? Surely it
must be genuine, unacceptable suffering.
Dr Gilbert: Absolutely. I would raise no question
about the validity or the genuineness of that suffering. What
I would expect to do and I would expect other health care professionals
and social care professionals to do, and collectively be supported
by society in doing, is our utmost to help alleviate that suffering
and to continue to help alleviate that suffering and make it plain
to people that collectively we will not stop attempting to relieve
that suffering as much as we are able to do. However, to eradicate
suffering in the human condition seems too big a task for medicine.
Q1976 Baroness Hayman: I wanted,
with some trepidation, to discuss with Professor Finnis the clarity
of the line that at present exists. While he explained very clearly
how from some viewpoints there is clarity, could I ask him whether
he would accept that from a patient's perspective, more than a
doctor or a lawyer's perspective, the clarity is perhaps not as
focused as he suggests? I am thinking of the patient whose end-of-life
circumstances take them on to a life support machine, a patient
whose end-of-life circumstances take them on to dependence on
medication which, if not taken, will end their life, or the patient
who is at home and has a knowledge of pharmacology at its most
basic and has the ability to squirrel away, if you like, an appropriate
amount of medication, or the patient who can swallow. In all those
circumstances, that patient's autonomy is respected by our legal
system if they wish to end their own life. Would you accept that
for some patients, whose fate is such that they cannot swallow,
they are in different circumstances but they may feel that they
want exactly the same end in exactly the same context—and
let us leave aside whether it is logical to have this end-of-life
situation—and they would feel they were very much at the
same point on the spectrum as the other patients who have the
ability to exercise their autonomy?
Professor Finnis: Yes. It seems to me not quite
adequate to say that the present law respects the autonomy of
the person who can commit suicide. It does and it does not. A
few years ago in the Bland case some Members of the House
of Lords sitting in judgment on it said that the decriminalisation
of suicide was to respect autonomy. More recently, when the whole
House looked at it again in a judicial capacity, in the Pretty
case, they said it is not about a right—autonomy in that
sense—it was decriminalised because of the evils of seeking
to pursue, by the instruments of the criminal law, these people
in their desperate circumstances. I would not myself articulate
it as an autonomy.
Q1977 Baroness Hayman: Perhaps if
I articulated it in terms of the right to refuse treatment and
the inappropriateness of a doctor administering treatment when
there is no consent to it.
Professor Finnis: That is a second and different
scenario, and a very important one. Can I just finish off the
point about "I haven't got the same advantage as others in
being able to commit suicide"? That is a difference between
persons, but the law takes care not to give public support to
those who wish to act on an evaluation of their own life which
the law cannot safely admit. If I decide to kill myself, I declare
myself to have a life not worth living. We all have a very strong
interest in that evaluation not being one that we accept. Of course,
we commiserate deeply with the person who makes that mistaken
evaluation of their own existence but we seek to preserve society
from the judgment running wild that, in a certain condition, "You
have got nothing left to live for and you would be better off
dead, and, of course, we would be better off if you were dead".
We have a huge interest in that judgment not being ratified and
that is why—
Q1978 Baroness Hayman: The Miss
B judgment did not ratify that.
Professor Finnis: Which judgment?
Q1979 Baroness Hayman: Miss B.
Professor Finnis: In which circumstance?
1 The paragraph as worded appears in Hendin, Herbert,
et al .1997. "Physician-assisted suicide and euthanasia in
the Netherlands: lessons from the Dutch", JAMA (Journal of
the American Medical Association) 1997; 277: 1720-1722 Back
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