House of Lords - Assisted Dying for the Terminally Ill Bill

Select Committee on Assisted Dying for the Terminally Ill Bill First Report

CHAPTER 3: The Underlying Ethical principles

39. In our introductory chapter we observed that the supporters and opponents of the ADTI Bill based their arguments on two first principles—personal autonomy in the one case and the sanctity of human life in the other. Before proceeding to examine these concepts, it is necessary to make the—perhaps obvious, though easily overlooked—point that the difference of principle between the Bill's supporters and its opponents is not that the former do not believe in the sanctity of human life or that the latter do not support personal autonomy. It is clear to us from the evidence we have received that each side values both these principles. The difference between the two points of view is that in the circumstances envisaged in the Bill one side takes the view that, where there is a conflict between the two principles, personal autonomy should prevail, while the other side gives precedence to the sanctity of human life.

40. In this chapter we summarise, first, the arguments and counter-arguments which have been put to us by our witnesses on both these subjects, and then the conclusions which might be drawn from our analysis of them.

Nature of Personal Autonomy

41. Autonomy was defined for us by Professor John Harris, Bio-ethicist and Philosopher at the University of Manchester, as "the ability to choose and the freedom to choose between competing conceptions of how to live". "It is only by the exercise of autonomy," Professor Harris continued, "that our lives become in any real sense our own. The ending of our lives determines life's final shape and meaning, both for ourselves and in the eyes of others. When we are denied control at the end of our lives, we are denied autonomy" (Q 1).

42. To a large extent, of course, autonomy over the time and mode of one's own death already exists—as suicide is not an offence in law. The debate in this case is over assisted suicide or, in the case of persons who are not physically able to take their own lives, voluntary euthanasia. It was suggested to us by Professor Jonathan Glover of the Centre of Medical Law and Ethics at King's College London that there could be a denial of autonomy under the law as it stands at present. It was, he suggested, "discriminatory and objectionable that somebody who is capable of committing suicide is able to do that, but somebody who happens to lack the physical capacity to do that is denied it" (Q 53). The same point was made to us by Baroness Greengross (Q 1913).

43. A more qualified view of autonomy—what was referred to by some as "principled autonomy"—was given to us by the Reverend Professor Robin Gill on behalf of the Church of England—namely, that "the rights of the individual always go hand in hand with the duty of the individual to other people" (Q 1758). The same point was made to us by Dayan (Judge) Chanoch Ehrentreu, on behalf of the Chief Rabbi: "Despite contemporary society's commitment to individual liberty as an ideal, it recognises that the interest of the individual cannot be separated from the interest of the society at large" (Q 1758). Essentially the same point was made by Ms Hanne Stinson of the British Humanist Association (BHA)—that "we should all be allowed to make decisions about our own lives unless those decisions are harmful to others" (Q 1810).

44. Yet another view of autonomy was given to us by Ms Alison Davis, National Coordinator of No Less Human, that "the concept of autonomy actually means that you should act in your own best interests, and best interest as traditionally understood means that things such as preserving life, maintaining health, restoring health, minimising suffering… are the sort of things over which we have autonomy" (Q 534).

45. Applying these principles to the field of clinical practice, Professor Alan Johnson, Emeritus Professor of Surgery at the University of Sheffield, observed that "the impression has been given that obeying patients' wishes is the overriding ethical imperative for doctors. Of course it is important, but it is not paramount. If it were, I would have done many unnecessary operations and some harmful operations in my time as a surgeon" (Q 165). And he cited, as an example of the need to subordinate individual patient autonomy to the interests of the wider patient community, the refusal of doctors to prescribe antibiotics at a patient's request for relatively trivial conditions because to do so would "produce resistance which might have quite a serious effect on people further down the line" (Q 192). Professor Raymond Tallis of the Royal College of Physicians put it this way: "The big problem is the question of whether autonomy is, as it were, the sovereign bioethical principle… There is no doubt about it; autonomy is the cornerstone of general medical practice… but there are certain issues where there may appear to be conflict between the value of autonomy and other values" (Q 227).

46. The essential argument therefore is that, before rights are given to a minority, it is necessary to consider whether there are likely to be any adverse downstream effects on the majority. The Bill's supporters would probably agree with Professor Glover that there is no need in this case to balance the rights of a minority against potential harm to larger numbers of people because "under this proposed Bill or legislation broadly of this type, no one who does not want to have access to assisted dying is going to be made to do so" (Q 55). Professor Simon Blackburn, Vice-President of the BHA, felt that "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" (Q 1812). And Professor Harris put to us an argument to the effect that, without the enactment of the Bill, there is certain harm being done to some people (those who are terminally ill and wish to have assistance to die), whereas there is only potential harm to others (for example, people who might feel pressured to opt for assisted suicide or euthanasia against their better judgement in order to avoid being a burden on their families) if it were to be enacted. "We have to take a balanced view," he suggested, "but that balanced view should not be at the expense of one group always in order to offer absolute protection to another group" (Q 16).

47. Professor Harris also offered us what he considered to be an analogous situation to a terminally-ill patient who is suffering unbearably and requesting assistance to die. This—the so-called "policeman's dilemma"—envisaged a motor accident in the United States in which a lorry driver is trapped in the cab of his burning vehicle and in which it is clear that he will be burnt to death before he can be freed. In these circumstances he asks the policeman who arrives on the scene of the accident to shoot him rather than to let him be burnt alive. The policeman complies with the request out of a sense of humanity. "I have not met a single person," said Professor Harris, "who could look me in the eye and say that the policeman did a wicked thing and did something that he should not have done. If we concede this case, then we concede the principle of assisting death in extreme distress and where the condition, as the lorry driver's was, is clearly a terminal one" (Q 2). We return to this analogy later in this chapter.

Autonomy in other End-of-Life Situations

48. Some of our witnesses drew a contrast between on the one hand the legal right of a patient, whether or not terminally ill, to refuse life-prolonging treatment and on the other the inability of a terminally ill patient either to receive the means to commit suicide or to have his or her life ended by someone else. Dr Evan Harris, MP, a doctor, suggested that, while many doctors might not be happy with a patient's refusal of further treatment, they would accept it on the principle of patient autonomy (Q 5). In the view of Professor Sheila McLean of the University of Glasgow, "what Lord Joffe is doing is putting people who require active assistance on a par with those who have a treatment that they could otherwise refuse" (Q 10). Professor Blackburn took a similar view—that "it is surely discriminatory and unjust to allow deliberate omissions… but to forbid parallel commissions" (Q 1810). It was also suggested to us that there was even more inconsistency between refusing to people active assistance to end their lives and allowing the withdrawal or withholding of treatment which is deemed futile or burdensome without the patient's consent.

49. These arguments were however contested by others. We were told that, while it might be argued that there was little difference from the patient's standpoint between on the one hand allowing a refusal of futile or burdensome treatment and on the other refusing assistance with suicide or voluntary euthanasia, from the standpoint of the physician the two situations were quite different—in that he is acceding in the one case to a patient's request to let his or her illness take its natural course, while in the other he would be required to bring the patient's life to an end prematurely. According to Professor Timothy Maughan, Professor of Oncology at the University of Cardiff, "this Bill clearly crosses a Rubicon… At the moment we have a clear line, a clear line where we do not kill people actively by the ending of a life". The Bill, suggested Professor Maughan, "would remove that clear line. To me as a doctor and to my colleagues there is a very clear distinction between what we do now with the removal of treatment and allowing nature to take its course and the active commission of death in this situation" (Q 165). Professor Nigel Leigh, for the Association of British Neurologists (ABN), suggested that a patient's autonomous demand for assisted suicide or euthanasia could conflict with a doctor's exercise of his or her own autonomy. While supporting the principle of patient autonomy and indicating that in his personal view a case for allowing "a very small minority" of patients to end their lives could be made, Professor Leigh suggested that patients asking for hastened deaths "have responsibilities to the people who are going to have to do something which is traditionally—and probably always will be—against the medical ethic" (QQ 1127 and 1157).

50. In the experience of Dr Fiona Randall, a consultant in palliative medicine, "patients on the whole can distinguish between refusing a line of treatment that they do not want and what this Bill is proposing, which is a right to assistance by the doctor directly ending your life. I think to most common people there is a difference between the right not to have treatment forced upon you, which is almost a negative right, and a positive right to have the doctor give you a lethal injection. I think most people could see that those were two different scenarios" (Q 1984).

51. It might perhaps be argued that the case of withholding or withdrawing treatment is more open to question because the patient's consent to such action is not required if the treatment is deemed futile or burdensome. But here too most of the medical practitioners whom we questioned saw a clear difference between withholding or discontinuing life-prolonging treatment considered to be futile—and often also burdensome to the patient—and taking action specifically to end his or her life. As Professor Sir Graeme Catto of the General Medical Council put it, "We understand the view that there is no moral difference between withholding life-prolonging treatment and taking active steps to end a patient's life or that there is a continuum which spans both withholding treatment or providing drugs which may have a double effect and taking active steps to end a patient's life. We understand that view but we do not share it. We believe that active steps to end a life raise questions for society on the value it attaches to human life and the role and responsibilities of those curing or restoring health; indeed, those who are responsible for caring for individuals who are nearing death bear special responsibilities" (Q 285). And it was also pointed out that the withdrawal or withholding of treatment differed from assisted suicide or euthanasia not only in intent but also, in some cases, in its results. Professor Maughan referred to cases "where the ventilator has been turned off and the patient has carried on breathing. The outcome is in doubt when you withdraw intervention. You do not know that it will lead to death. What you are doing is primarily withdrawal of burdensome and futile treatment" (Q 205). Dr Randall argued[21] that, when futile or burdensome treatment is withdrawn or withheld, the patient's death results from the failure of essential organ function, which renders the patient incapable of survival without constant life-prolonging treatment. The fundamental cause of a patient's death in this situation was the patient's condition, not the withholding or withdrawal of treatment.

52. Finally, it was suggested to us by one of our witnesses that the autonomy of terminally-ill patients should be seen within the context of the struggle to come to terms with the end of life rather than as a simple question of legal entitlement. Dr Rob George, a consultant in palliative care at University College London Medical School, argued on the basis of his own experience that patients requesting assistance to end their lives tended to be "people who wish to be in control… people who are not willing or prepared to engage the issues that may underlie the problems that arise" (Q 356) and that what is needed in such cases is a range of support services to enable the patient to address his or her fears. Dr George described this approach as "respecting the autonomy of the individual as self-government rather than purely self-determination" (Q 367).

Sanctity of Human Life

53. It was clear from the evidence which we took from representatives of religious organisations (see QQ 1758-1809) and from letters we received that many people believe that life is God-given and cannot in consequence be terminated by others, even on request. For them the sanctity of human life is a concept which is closely linked with religious convictions. Some of our witnesses, however, argued that there is also a secular version of this principle. Professor Glover defined this as "an absolute barrier, an absolute ban, not derived from a religious source on the intentional taking of innocent human life", which he believed to be identical to the religious version (Q 65). "Most human beings," he continued, "think that the issue of taking someone's life is a deeply serious issue and one that requires a great deal of justification. I do not think one needs religious authority to take a view like that" (Q 65). The Rev Professor Gill said that, while to Christians life is God-given, "to secular people life is still given, it is given by the people; you did not invent your life. Human life is in that sense special and to be treated with care. Intentional killing is not something any of us should be taking lightly, whether we are religious or not" (Q 1777).

54. Another witness, Lord Walton of Detchant, who chaired the 1993/4 Select Committee on Medical Ethics, referred to "society's prohibition of intentional killing, a prohibition which is the cornerstone of law and of social relationships. It protects each one of us impartially, embodying the belief that all are equal" (Q 2043). Professor John Finnis of the University of Oxford saw this law as a "bright line". "Though like other laws," he said, "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" (Q 1973). Mrs Michele Wates, a researcher and writer, took the view that the Bill would "turn that principle on its head and establish in its place the principle that a person may invite others to kill them" (Q 1973).

55. Professor Blackburn, on the other hand, suggested that "opposition to this Bill is based not so much 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" (Q 1810) and that "the sanctity of life is actually honoured when we give due weight to human suffering, human dignity and human self-determination" (Q 1810).

56. Professor McLean believed that the view of the courts was that "when there is a tension between the State's underpinning commitment to preserving the sanctity of life and the autonomous decision of a competent person that they no longer wish to have their life protected by the State, the function of autonomy or the value of autonomy is more significant than any adherence to sanctity of life" (Q 16). Dr Evan Harris, MP, added that, "if sanctity of life as a priority were any basis for regulation, then we would seek to prevent competent persons from refusing life-saving medical treatment" (Q 16).

57. The view that, in Lord Joffe's words, "personal autonomy trumps sanctity of life" (Q 89) in legal thinking derives from a number of court judgments, including that given by Mr Justice Munby in the case of a man (Mr Oliver Leslie Burke) suffering from a congenital degenerative brain condition which would inevitably result in his needing to receive nutrition and hydration by artificial means. Mr Burke sought clarification as to the circumstances in which such treatment might lawfully be withdrawn. Mr Justice Munby ruled that in the final analysis it was for the patient, if competent, to determine what was in his own best interests; that personal autonomy—the right of self-determination—and dignity were fundamental rights, recognised by the Common Law and protected by Articles 3 and 8 of the European Convention on Human Rights (ECHR); that the personal autonomy protected by Article 8 embraced such matters as how a person manages his or her own death; and that, though there was a strong presumption in favour of taking all steps which prolong life, the obligation was not absolute. "Important as the sanctity of life is, it has to take second place to personal autonomy; and it may have to take second place to human dignity". In the context of life-prolonging treatment the touchstone of best interests was intolerability[22]. This judgment is however subject to appeal at the time of writing.

58. It is necessary to consider also judgments given both by the House of Lords (2001) and by the European Court of Human Rights (2002) in response to appeals by Dianne Pretty. Mrs Pretty, who was suffering from motor neurone disease and was paralysed from the neck downwards, though with her intellect and capacity to make decisions unimpaired, appealed against a refusal on the part of the Director of Public Prosecutions (DPP) to give an undertaking that her husband, Brian Pretty, would not be prosecuted under Section 2 of the 1961 Suicide Act if—as Mrs Pretty said she desired—he were to help his wife to commit suicide. The appeal claimed, inter alia, that the DPP's refusal was incompatible with Article 2 of the ECHR and that Section 2 of the Suicide Act was discriminatory—and therefore at variance of Article 14 of the ECHR—because it bore particularly heavily on people whose physical incapacity required the assistance of others if they wished to commit suicide. Both appeals were rejected, and Mrs Pretty died shortly afterwards of natural causes.

59. In giving its reasons for refusal, the House of Lords ruled that Article 2 of the ECHR, which enunciated the principle of the sanctity of human life and provided that no individual should be deprived of life by means of intentional human intervention, did not imply the right of an individual to choose whether to live or die. Having also ruled that Section 2 of the Suicide Act was not discriminatory (because the Act conferred no right to commit suicide), the House of Lords commented that the DPP could not exercise his discretion not to bring a prosecution under that Act in advance of criminal charges being brought. The ECHR judgement followed similar lines, confirming that no "right to die" could be derived from the Convention. It added that "the law which criminalised assisted suicide was designed to safeguard life by protecting the weak and vulnerable, and especially those not in a condition to take informed decisions, against acts intended to end life or to assist in ending life. The blanket nature of the ban on assisted suicide was not disproportionate, as there was flexibility, in that consent was needed from the DPP to bring a prosecution and a maximum sentence was provided allowing lesser penalties to be imposed as appropriate"[23].

60. The question of whether the Bill complied with human rights law was examined by the Joint Committee on Human Rights in its Twelfth Report (Session 2003-04). The Committee took the view that "the Bill is not intrinsically incompatible with ECHR Article 2" and that "its compatibility depends on the extent to which it contains safeguards for the rights of vulnerable patients who do not wish to have their lives terminated with the assistance of a third party"[24]. Having examined the safeguards in the Bill, the Committee concluded that these "would be adequate to protect the interests and rights of vulnerable patients… While recognising that the Bill relates to exceptionally sensitive matters of life and death and affects people's rights to life, we do not consider that it gives rise to a significant risk of incompatibility with those Convention rights"[25]. As mentioned above (see Paragraph 32), the Committee drew attention to Clauses 7(2) and 7(3) of the Bill, which are designed to cater for physicians with conscientious objection to what the Bill proposes and which, in the Committee's view, posed a significant risk of a violation of Article 9(1) of the ECHR.

Discussion

61. What conclusions can we draw from all this argument and counter-argument on the ethical principles underlying the debate on the ADTI Bill? This section attempts to identify those areas where, as a committee, we are agreed and those where there is not a consensus among us.

AUTONOMY

62. We are agreed that patient autonomy cannot be absolute and that there must be some limits set, in the interests of the wider community, to what a patient can require his or her doctor to do. There is not consensus, however, on where those limits should be. Some of us take the view that, as the Bill is offering assisted suicide or voluntary euthanasia only to a limited category of patients who ask for it and as the Bill incorporates safeguards designed to ensure that its provisions are not abused, there is no conflict with the interests of the wider community to be considered and that the Bill, if enacted, would therefore represent a logical and desirable extension of personal autonomy. Others among us take the view that personal autonomy, as self-governance, cannot extend to requiring others to perform acts which assist a patient to take his or her own life or deliberately end that life. They also regard the thinking underlying the Bill as unrealistic and they argue that its enactment will lead to a "slippery slope", whereby assisted suicide and voluntary euthanasia will become more widely available than is intended in the Bill either through incremental extension of the law or through the exploitation of loopholes or, for example, by terminally ill people resorting to them to remove a perceived burden on others.

63. The Bill's supporters respond to this by pointing to allegations that patients are in practice being given assistance with suicide or receiving voluntary euthanasia covertly and that enactment of the Bill would increase rather than diminish the safety of all terminally-ill people, and that the evidence available from countries where such legislation has been enacted shows little or no evidence of "slippery slopes". The Bill's opponents, for their part, point to the absence of hard evidence for the allegations of covert euthanasia and cite evidence from abroad—and especially from The Netherlands—that the "slippery slope" is a reality. What this tells us that we cannot address the issue of personal autonomy in isolation and that we must proceed to look at some of the "real world" issues which have been raised and to try to assess the balance between greater personal choice for some people and increased potential harm for others, and also at the experience of other countries where provisions are in force for assisted suicide or voluntary euthanasia. This we do in Chapters Four and Five.

64. We recognise that, from the patient's point of view, refusing life-prolonging treatment may appear little different from seeking assisted suicide or euthanasia. But we recognise also that there is a clear difference between the two situations from the point of view of the physician, mainly because the intention in the former case is not to bring about the death of the patient, whereas that is indisputably the intent in the case of assisted suicide and voluntary euthanasia, which in the words of Dr Michael Wilks, speaking on behalf of the British Medical Association, "move medicine and medical care into a different field" and create "a different type of relationship between the doctor and the patient" (Q 282). This does not mean, of course, that the medical perspective should automatically prevail. As we remarked in Chapter One, there is consensus among us that, in the last analysis, the acceptability or otherwise of the Bill is a matter for society as a whole. Having said that, we recognise also the crucial role which doctors would have to play in the implementation of the Bill, were it to become law, and that the views of the medical and nursing professions must be considered very seriously.

65. The parallel which has been drawn with the withdrawal or withholding of treatment is less straightforward. Where this is done at the patient's request, it falls to be considered in the same category as the refusal of life-prolonging treatment. Where it is done without the patient's consent, it is easy to understand why some people might take the view that it is more of an infringement of the patient's rights than assisted suicide or voluntary euthanasia. We can, however, see the force of the counter-argument that the intention is not to end the patient's life but to discontinue treatment which is futile and burdensome; that doctors are under no obligation to strive officiously to keep their patients alive at all costs; and that it is not unknown for patients who have had life-prolonging treatment withheld or withdrawn to continue to live.

66. We turn now to the observations which Professor Harris made to us (see Paragraphs 46 and 47 above) that there is a need to balance actual harm to patients who wish for and are denied assisted suicide or voluntary euthanasia against potential harm to other patients who might be exposed to exploitation if the Bill were to be enacted; and that, if society can accept that there are circumstances where what is commonly known as "mercy-killing" is justifiable, then the principle underlying Lord Joffe's Bill cannot be denied—the so-called "policeman's dilemma".

67. There is clearly a need to balance the interests of terminally-ill people who wish for assistance to end their lives against those of patients who do not. But this cannot be seen as a simple matter of weighing a certainty against a doubt and coming down in favour of the former. In any cost-benefit analysis—because that is just what this is—the balance of advantage needs to take into account the different weightings on each side of the scales. In this case it is necessary to know, for example, how many people are being deprived of benefit on one side of the equation and how many others might be endangered on the other side. We need also to take a view of the size of the benefits to the one group as against the magnitude of the damage to the other. So, while the principle of what Professor Harris has said is fair, it is necessary to look further (in Chapter Four) at how the balance would look in practice if the law were to be changed.

68. As for the hypothetical "policeman's dilemma", no one would pretend that the sort of situation which this postulates represents other than a very rare scenario, for which no legislature would consider providing in law. Commenting on this hypothesis, the Rev Professor Gill drew a distinction between compassion and legalisation. "It is a hugely compassionate case," he said, "and I would do exactly as the policeman did, and I hope you would too. But I would not expect the law to be changed to allow that; indeed, it would produce absolute chaos in society if we really did allow the police the discretion of shooting people in that context" (Q 1761). We note here what the law says now about so-called mercy-killing—that, if anyone should take upon him or herself the responsibility for ending someone else's life in order to prevent suffering, he or she must let the courts examine all the facts of the case and reach a judgement on guilt or innocence and on whether, and if so to what extent, the law should impose punishment.

SANCTITY OF HUMAN LIFE

69. We have less to say on this subject because it has been discussed to some extent implicitly in our examination of personal autonomy, of which in this specific context it may be regarded as the obverse. Some of us feel strongly that legalisation of assisted suicide or voluntary euthanasia would mark a fundamental departure in society in that it would make it lawful for one human being to comply with another's request to end or assist in ending his or her life. There are, however, certain other points which need to be made.