Select Committee on Assisted Dying for the Terminally Ill Bill Minutes of Evidence

Memorandum by the Royal College of Physicians of Edinburgh

  The Royal College of Physicians of Edinburgh is pleased to respond to the House of Lords Select Committee on its Call for Evidence on the Assisted Dying for the Terminally-Ill Bill.

  The College recognises the intention of the Bill to protect individual autonomy and understands the risk of encouraging illegal practices (as happened with abortion) if people in extreme distress are not supported. The needs of a few tragic but rare cases must be balanced against the dangers for society as a whole, and the College has major concerns about the legislation as proposed. However, the College also recognises that the principles of assisted dying are a matter for individual conscience and accepts that there are Fellows of the College who are supportive of the principle, if concerned about the practicalities of implementation.

  Specifically the College is concerned about:

    —  the impact of such legislation on the doctor-patient relationship and the harm it might do to the trust in doctors;

    —  the ability and willingness of doctors to act as the "attending" or "consulting" physician;

    —  the difficulty in defining clearly many critical aspects of the Bill;

    —  the potential for misinterpretation by and for vulnerable groups such as older people, those with disabilities and those with degenerative diseases and their families;

    —  the implication in the draft Bill that those with needs for pain relief are not already served well when the profession has put such great store on effective pain relief and palliative care as a whole.


  The College offers the following information and observations to the House of Lords Select Committee as it considers the draft Bill:


(a)  Have ethical considerations changed over the years?

  The present Bill is a further attempt to succeed where previous Parliamentary attempts to legalise voluntary euthanasia failed. It has been persuasively argued that the ethical case for legalising is no stronger now than in the past. In an influential paper ["The History of Euthanasia Debates in the United States and Britain" Annals of Internal Medicine 1994: 121:10;793-802], E J Emanuel observes that the "arguments propounded for and against euthanasia in the 19th century are identical to contemporary arguments". Then and now, he suggests, the typical arguments for, are:

    "(1)  it is a human right of self-determination;

    (2)  it would produce more good than harm, mainly through pain relief;

    (3)  there is no substantive distinction between active euthanasia and the withdrawal of life-sustaining medical interventions; and

    (4)  its legalisation would not produce deleterious consequences".

  Against these are typical counter-arguments:

    "(1)  challenging the assumption that most deaths were painful;

    (2)  emphasising the willingness of practitioners to stop treatments and use pain medications;

    (3)  maintaining the distinction between active and passive euthanasia; and

    (4)  enumerating the adverse consequences of legalising euthanasia."

  Examining the historical contexts in which interest in euthanasia has waxed and waned, Emanuel concludes that:

  Public interest in euthanasia

  (1)  is not linked with advances in biomedical technology;

  (2)  it flourishes in times of economic recession . . .;

  (3)  it arises when physician authority over medical decision making is challenged; and

  (4)  it occurs when terminating life-sustaining medical interventions become standard medical practice and interest develops in extending such practices to include euthanasia.

  The third and fourth of Emanuel's conclusions are particularly relevant to the present Bill. The argument for "a human right of self-determination" has been strengthened by current challenges to "physician authority over medical decision making"; and the argument that "there is no substantive distinction between active euthanasia and the withdrawal of life-sustaining interventions" has been strengthened by growing medical and public acceptance of the latter. The distinction may also have been blurred by palliative medicine's increasing ability to support a prolonged period of dying that is relatively pain free but may be psychologically burdensome to the patient or their family. So, although the essential arguments for and against legalising euthanasia may not have changed, the social and medical context of the present Bill may have added weight to the arguments for legalising it, as may the precedent of legalised euthanasia in a growing number of other countries, including the Netherlands, Belgium and some American states. UK opinion polls moreover suggest that while only a small minority of doctors would be willing to administer voluntary euthanasia, a larger minority is in favour of legalising it, and a majority of the British public is supportive of legalisation.

(b)  Improving patient autonomy

  Current challenges to "physician authority over medical decision making" are not necessarily supportive of legalising euthanasia. The English High Court's recent decision on the judicial review of the GMC's guidance on Withholding and Withdrawing Life-Prolonging Treatment supports the competent patient's right not only to refuse but also to require treatment. The implications of this (including the resource implications) have yet to be clarified, but the decision has been welcomed by disability rights advocates strongly opposed to physician assisted suicide: in their view, disabled people's quality of life is all-too-often subjectively undervalued by doctors considering whether to withhold or withdraw treatment [].  In the shadow of Shipman, this may add weight to arguments warning against "the adverse consequences of legalising euthanasia". Alongside this, many doctors, all-too-aware of this shadow, remain unpersuaded by consequentialist philosophical arguments which deny any "substantive distinction between active euthanasia and the withdrawal of life-sustaining medical interventions": to their medical conscience, the distinction between active and passive euthanasia, or perhaps the principle of double effect, is a saving foothold on a morally treacherous slippery slope.

(c)  Are there adequate safeguards?

  The present Bill offers safeguards of a different kind, publicly ascertainable rather than appealing to the individual or collective conscience of physicians. In a modern democratic society, it is necessary that safeguards against medical malpractice should be publicly ascertainable, not least if society decides that voluntary euthanasia or physician assisted suicide should be legalised. But it is less clear that the purely procedural safeguards proposed in the present Bill are sufficient to achieve respect for the person as well as the rights of patients who would be subject to its provisions. The Bill accords "a competent adult who is suffering unbearably as a result of a terminal illness" the right "to receive medical assistance to die at his own considered and persistent request" provided that certain "qualifying conditions" are met. But it offers no assurance that assistance will be provided respectfully, with due consideration for the vulnerability as well as the technical competence of the patient suffering from a terminal illness. Indeed the strict "qualifying conditions" required by the Bill may actually encourage an impersonal approach to the patient as someone whose case for euthanasia has to be bureaucratically proved, lest the doctor commits a punishable offence. This raises the question of whether the present Bill is addressing what for most dying patients and their doctors are the essential issues.

(d)  Tragic dilemmas

  There are occasions on which even the most skilled palliative care is unable to relieve what the Bill calls "unbearable suffering". Morally, it seems wrong that in circumstances when all else has been tried and failed, patients should be denied the right to medical assistance to die. But occasions when all else that modern palliative care and patient-centred professionalism have to offer have actually been tried and failed are now rare; and where there is failure it is more likely to be failure to achieve appropriate standards of care, treatment or respect for persons.

  This is not to deny that there are "hard cases" when it is difficult if not impossible to achieve the outcome desired by patients and doctors alike. The present Bill offers a possible way of achieving that outcome. But it does so at the risk of bureaucratising and depersonalising doctor-patient communication, and also of the broader deleterious social consequences feared by opponents of euthanasia. Whether these hard cases can be resolved in a better way than at present, by the proposed Bill or by some other means, is ultimately for Parliament or the courts to decide. But, in principle, it is difficult to envisage any statutory or legal solution which can meet all the different and sometimes conflicting moral and ethical demands arising in this context. Indeed, it may have to be accepted that some of these hard cases are genuinely tragic dilemmas.

  Such dilemmas can be outlined in terms suggested by Ricoeur [vide Ricoeur P The Just Chicago: University of Chicago Press 2000]. We begin with the ethically desirable aim of a good death. But morality requires us to respect the universal rule: it is wrong to kill except to save a life. This, however, conflicts with the moral and especially medical rule to relieve suffering wherever possible. Thus we can recognise, in the cases for which the present Bill is designed, a tragic dilemma which the Bill's purely procedural approach masks. If public opinion is so swayed by hard cases that the pressure for legalisation of euthanasia becomes irresistible, the tragic dilemma will not be removed: it will simply reappear in a different form. But whether euthanasia is legalised or remains illegal, what the tragic dilemma involved in hard cases essentially calls for is practical wisdom, or as Ricoeur puts it "wisdom in judging" which "consists in elaborating fragile compromises where it is a matter less of deciding between good and evil, between black and white, than between gray and gray, or, in the highly tragic case, between bad and worse".

  The business of "elaborating" such "fragile compromises", Ricoeur suggests, is exemplified by "the model of the small circle bringing together relatives, doctors, psychologists, and religious leaders at the bed of someone who is dying. Wisdom in judging and the pronouncement of wise judgement", he writes, "must always involve more than one person" [op cit 155]. Those involved in this scenario (with the exception of religious leaders) are not unlike those whom the present Bill envisages as involved in the process of determining whether a patient is "qualified" "to receive medical assistance to die". But, again, the bureaucratic procedures prescribed in the Bill may obstruct the spirit of the "wisdom in judging" needed to achieve "fragile compromises".

  It could be observed that, in the context of this draft Bill, society is on the one hand criticising doctors for denying autonomy but, on the other hand, would now wish doctors to facilitate what many would consider quite abhorrent decisions for the patient and for society. It might therefore be reasonable to challenge why doctors and not a wider group should not share this moral burden.

(e)  Improving patient autonomy

  "Wisdom in judging" involving "more than one person" is very close to the ideal of patient-centred professionalism to which medicine in the UK is now increasingly committed [vide Irvine D Patient Centred Professionalism—Decision Time 2003 Duncan Memorial lecture, Royal Society of Medicine]. This ideal respects not just the formal rights of patients, but the substance of those rights: it respects the autonomy of patients as partners in their own health care, but also recognises that patients often are also vulnerable individuals who may need medical assistance to maximise their autonomy. In this respect, patient-centred professionalism offers a less medically-dominated way of achieving the "fragile compromises" required to resolve "hard cases" than does the present Bill, which makes the doctors involved the ultimate judges (under a "monitoring commission") of the patient's qualifications for the right to assisted death.

  Doing all that can be done to achieve the ideal of patient-centred professionalism, through medical education and by maintaining standards of clinical practice, is currently a major priority of the British medical profession. With this in mind, the medical profession may reasonably ask whether enactment of the present Bill will not distract attention from, and in fact present new obstacles to, the real task of respecting and enabling patient autonomy. Many doctors, moreover, are likely to have strong reservations about carrying out what is required by the terms of the Bill and may choose to avail themselves of the Bill's provisions for conscientious objection. Those who are willing to carry out euthanasia therefore may have a larger number of cases of this kind referred to them than is conducive to optimal patient-centred care.

(f)  Parliamentary authority with regard to medical professionalism

  More generally, the medical profession may seriously question whether Parliament has the moral authority to declare in clause 10(3) of the Bill that "A physician to whom subsection (1) applies . . . shall be deemed not to be in breach of any professional oath or affirmation". Whether a "professional oath or affirmation", which is as analogous to a religious as to a civil commitment, can be abrogated by Act of Parliament in this way may raise sufficiently serious constitutional issues as to make Parliament very wary of enacting this clause.


(a)  Difficult definitions

  (i) The definition of "terminal illness" is too broad and by implication for a period of up to six months, excluding those in the last two weeks of life. Difficulty judging prognosis is well documented in the literature.

  (ii) "Competence" is determined more by the nature of the patient's illness and the medication/treatment used than time before death. It will be difficult for doctors to assess the competence of patients with communication problems due to the nature of their illness eg aphasic stroke patients, although there are reasonable safeguards within the draft Bill.

  (iii) The distress described in this Bill as "unbearable suffering" is almost never due solely to uncontrolled physical symptoms such as pain or breathlessness. Depression is common but poorly diagnosed and often untreated in the medically ill and in palliative care populations. Even patients without psychiatric illness can be extremely distressed by concerns such as loss of autonomy/independence, the indignation of loss of control of bodily functions, burdening family or friends and existential distress. Psychosocial and spiritual care services are under-resourced and the recent NICE guidance on supportive care for cancer patients recognises this. Non-cancer patients with advanced, progressive neurological, respiratory or cardiovascular disease are a growing population in an ageing society and have access to even fewer services, particularly in the community. The prospect of struggling to cope over a prolonged period of physical and mental decline is acknowledged to be a potent driver for patients wishing to avoid suffering themselves or burdening their informal carers. These fears can be particularly pronounced at the time of diagnosis or when there is clear illness progression, and may resolve when support mechanisms are in place. In short, "unbearable suffering" can be improved with good access to high quality palliative support.

  (iv) Patients must make "persistent and considered" requests but this requires amplification to determine qualifying status.

  (v) In the draft Bill the "visiting physician" must be an NHS consultant and the College questions why employment status rather than professional qualifications and competence should be used within the qualifying criteria. In addition, should this visiting physician require complete independence from the "attending physician" and work in a different unit or region? This could be difficult to achieve in practice, particularly in remote and rural areas.

(b)  Scope of the Bill

  The College recognises the importance of introducing such legislation across the UK consistently and understands that the Scottish dimension has been identified by their Lordships at the second reading.

(c)  Notifying relatives

  The College is very concerned that it may be impossible for doctors to proceed to treat in the face of outright opposition from distressed relatives. Doctors already face the moral dilemma posed in balancing their duty to do what is in their patients' best interests as required by the GMC's Good Medical Practice, against opposing the wishes of well-intentioned relatives. The draft Bill, if enacted, will place, on some, an intolerable burden where patients have not informed and do not wish to inform their relatives. This, again, poses a real danger to the general perception of the profession's trustworthiness and such a burden may lead to individual doctors invoking the right to conscientious objection.

  If assisted dying becomes a legal option for terminally ill patients in extreme circumstances, there may be an obligation on doctors to ensure this is made known. This could also damage the doctor-patient relationship and be alarming and distressing to patients and their families.

8 September 2004

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