This week’s decision by the Supreme Court to reject the right-to-die case brought by Paul Lamb, Jane Nicklinson and a third man known only as Martin, was a welcome relief to those of us who believe that legalising assisted suicide is anything but progress.
The judgement was massively complicated. It has on the surface been useful in that it did not allow the applications before it. However two of the nine judges, including Lady Hale – the Deputy President of the Supreme Court – said that had they issued a statement of compatibility with European Convention Rights, they would have found UK law to be incompatible with Article 8, which provides a right to respect for private and family life. All appeared to agree that the onus is on Parliament to clarify the existing law and prosecuting policy on assistance to die.
That charge poses a major problem for those who maintain opposition to any change in the law on the grounds that (as Keir Starmer, the former Director of Public Prosecutions has said) the current law operates well. Deliberately or otherwise, it also adds credence to Lord Falconer’s Assisted Dying Bill that will receive its second reading in the House of Lords on Friday 18 July, which would iron out some ambiguities by making certain forms of assisted suicide legal.
The most concerning part of the press summary issued by the Court itself was this:
‘The main justification advanced for an absolute prohibition on assisted suicide is the perceived risk to the lives of vulnerable individuals who might feel themselves a burden to their family, friends or society and might, if assisted suicide were permitted, be persuaded or convince themselves that they should undertake it, when they would not otherwise do so [81, 171]. A system whereby a judge or other independent assessor is satisfied in advance that someone has a voluntary, clear, settled and informed wish to die and for his or her suicide then to be organised in an open and professional way would arguably provide greater and more satisfactory protection for the vulnerable, than a system which involves a lawyer from the DPP’s office inquiring, after the event, whether the person who had killed himself or herself had such a wish [108, 186]. The interference with Mr Nicklinson’s and Mr Lamb’s Article 8 rights is grave and the arguments in favour of the current law are by no means overwhelming.’
The section in bold takes us into new territory. It essentially suggests a form of independent assessor, perhaps a judge, who should be the one to determine capacity to make a decision – taking it out of the hands of medical professionals. This too is a challenge to Lord Falconer, because his Bill doesn’t feature this element at all. In fact his Bill is quite open to attack on the grounds that it has no specific upfront safeguards; just an outline of a process, which is not a reassuring way to proceed when strong guarantees that safeguards are robust and sufficient are of utmost importance.
If we decide that it would be the job of an independent assessor to provide the safeguarding in these life-or-death decisions, it immediately raises a whole set of questions about what this would entail in practice. Essentially, it proposes that the judiciary (or their appointee) has to assess a person’s state of mind and issue a ruling that will directly lead to the ending of that person’s life. How far removed is this from asking judges to effectively pronounce a death sentence? We’re placing a lot of stock on the emotional detachment of the judiciary and their willingness to routinely enter into adjudicating on life and death matters that they haven’t otherwise had to do since we abolished capital punishment.
The press summary goes on to say:
‘The question requires a judgment about the relative importance of the right to commit suicide and the right of the vulnerable, especially the old and sick, to be protected from direct or indirect pressure to do so. It is unlikely that the risk of such pressure can ever be wholly eliminated. Therefore the real question is how much risk to the vulnerable is acceptable in order to facilitate suicide by others who are free of such pressure or more resistant to it.’
This ‘real question’ essentially summarises the issue the nine judges are putting to Parliament and it is the six million dollar question. Is any risk to the vulnerable acceptable in order to facilitate suicide by others who are free of or resistant to pressure – and within that, how safely can we assess whether those who are considered free/resistant to pressure actually are so?
Frankly, it’s a big question as to whether any safeguards would be sufficient enough to protect against abuses. And any number of safeguards doesn’t alter the point of principle that the role of our courts and also the doctor/patient relationship will be fundamentally changed forever. Whether it is judges or doctors who make the final call over the right to die, if Lord Falconer gets his way it will be the doctors who will be intimately involved in the killing. It’s no surprise therefore that the British Medical Association opposes assisted suicide.
Most of us would have to be devoid of compassion and feeling not to have sympathy for those who took their cases to court. When we hear of or know people whose lives have significantly deteriorated in quality, we instinctively want the best for them. Likewise, none of us hopes to suffer as death approaches. These are emotionally charged issues, but good and sound law cannot be based on subjective emotion. Matters of this nature must be considered objectively if judgements are not to be made that we as a society may well later regret.
The principles of protection for the vulnerable and public safety have to be paramount when this issue of assisted death comes before Parliament in the form of Lord Falconer’s Bill. If we reduce it all to a simple question of ‘my rights, my life, my choice’ (as Lord Dobbs did in Wednesday’s Evening Standard), we deny something fundamental about the interdependency (and dependency) of human relationships in favour of going over wholesale to a culture of individualistic and consumerist approaches to what is – let’s face it – the most profound issue of all. Life & death.
If you care about this, it would be wise to write to a member of the House of Lords to express your views before the Assisted Dying Bill is presented. Lords are not linked to constituencies unlike MPs, so there are no restrictions on which ones can be contacted. A list of the House of Lords is here and ways to contact them can be found here.