The law on assisted dying in Britain is incoherent and hypocritical
It makes a mockery of due process, is inhumane, and needs to change, writes Charles Falconer
SOMEONE diagnosed with a terminal illness should be able to make the decisions about how that last illness should be faced. They can request palliative sedation, refuse artificial nutrition and hydration, or request the removal of life-sustaining medical treatment or equipment.
But British law denies the patient the right to a physician’s assistance in ending their own life. Any person who assists a dying person to end their own life faces prosecution with a maximum sentence of 14 years in prison. The director of public prosecutions (DPP) has issued guidelines to the effect that prosecution is unlikely where the assister has good motives. It is clear that discretion would not apply to a doctor providing assistance, only friends or family, and even for loved ones they provide no assurance of not being prosecuted.
The aim of the law should be to preserve life and protect the vulnerable. But it goes unnecessarily far. When you are dying the issue becomes how do you want to die. It is an inescapable fact that some people who are dying, with full mental and emotional capacity, no longer want to live. Who no longer want to exist for a few more days or weeks or months facing nothing but medical procedures. Who have said their goodbyes. Who hate the increasing indignity of their last illness. Who want to be in control.
The law (the statute and the DPP guidelines together) does not currently deliver people’s legitimate entitlement to be in control of their death or protect the vulnerable.
Those who want the option can travel to Switzerland and have an assisted death. They will die away from home, and often earlier than they might otherwise have died, because they need to be strong enough to travel. Loved ones who accompany them might be investigated by the police to see whether their assistance satisfies the DPP’s guidelines. These investigations, almost invariably conducted sympathetically by the police, take months and are hell for the relative as they await a decision on whether they are to be prosecuted.
Or the dying can stay in Britain and seek the amateur assistance of a loved one who might for example help them take an overdose. This often goes wrong, and in any event may provoke an investigation. Or in order to protect loved ones, they can attempt to end their lives alone.
The law on assisted dying in Britain is an incoherent, cruel, hypocritical mess. It doesn’t preserve life, it often hastens death. It cannot properly protect vulnerable individuals because investigation of the circumstances and consideration of vulnerability only happen (if at all) after the assisted death has occurred.
The Bill I proposed in the House of Lords and which obtained majority support allowed an assisted death for a person who was terminally ill with six months or less to live. In contrast to the current after-the-event investigations, two doctors and a High Court judge would have to be satisfied with the diagnosis and the capacity of the patient to make the decision and that he or she was making the decision of their own free will.
This should apply only in the case of someone who is terminally ill. Many jurisdictions have the same approach. Oregon has had an assisted-dying law since 1997, and since then another seven states including California have changed the law. The CEO of the Oregon Hospice Association described the law there as working well without the dire consequences many predicted. Those places where assistance only for the dying has been the basis of the law have not subsequently migrated to a wider approach.
The last time the House of Commons considered the issue, in 2015, it rejected a private member’s bill with similar safeguards to my bill by a substantial majority. Without government support a bill like this has little chance of passing.
In most other jurisdictions the change has come either from a referendum (Oregon) or from a court decision (Canada). However, MPs in the state of Victoria in Australia last year voted to change the law after an extensive parliamentary inquiry.
Over 41m Commonwealth citizens and 60m American citizens now have the comfort of knowing that if they become terminally ill they can have choice and control over their death. Our dying citizens are denied this peace of mind as Britain’s elected representatives lag behind lawmakers overseas and public opinion at home.
Opinion polls over decades have favoured by massive numbers a change in the law. Those majorities exist among practising Anglicans and disabled people, two groups said to be opposed.
Noel Conway, who has motor neurone disease, has challenged our law in court saying it offends the Human Rights Act in denying someone who is dying the right to control over the end of their life. He has lost at first instance and in the Court of Appeal. It’s now for the Supreme Court to decide the issue. If they find in Mr Conway’s favour then the government would almost certainly introduce legislation to remedy the wrong.
A recent decision of the Supreme Court also raises questions about the logic of our laws on end-of-life decision-making in different contexts. The ruling on the Mr Y case confirmed that judicial approval is no longer needed when withdrawing life-prolonging treatments from individuals in a prolonged disorder of consciousness (PDOC), so long as doctors and family agree on the patient’s best interests.
So we are in a situation where withdrawal-of-treatment decisions for people who are in PDOC and do not have capacity to make their own decision will no longer always have to go to court, with medical professional organisations having developed safeguards around the process.
In contrast, terminally ill people who do have capacity to make and articulate their own decisions cannot request an assisted death, because to date MPs and the courts have concluded that the proposed safeguards, including oversight by the High Court, are not strong enough.
It cannot be right that terminally ill people are denied choice based on the argument that the safeguards aren’t enough. The current law on assisted dying makes a mockery of due process, lacks popular support, is inhumane and fails to protect the vulnerable. It needs to change.
Lord Falconer was Britain’s Lord Chancellor from 2003 to 2007 and chaired the Commission on Assisted Dying
This article is part of a series of viewpoints on assisted dying. Read more here:
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