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:
1. ETHICAL CONSIDERATIONS
(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 [http://news.bbc.co.uk/1/hi/uk/3682473.stm]. 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.
2. PRACTICAL
CONSIDERATIONS
(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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