The Cornerstone of Law and of Social Relationships

Anthony McCarthy writes:

Professor John Keown DCL (Oxford) is a Senior Research Scholar in the Kennedy Institute of Ethics at Georgetown University. He formerly taught medical law at Cambridge and is the author of the ‘classic text’ on euthanasia: Euthanasia, Ethics and Public Policy: An Argument against Legalisation (Cambridge University Press, 2nd ed, 2018). He delivered the inaugural lecture of the Bios Centre at King’s College London in 2019.

What is your reaction to the Leadbeater Bill? Are you surprised by its contents?

To adapt villain Hugo Drax’s pained greeting to his nemesis James Bond in Moonraker, such Bills appear with the tedious regularity of an unloved season.

The Bill’s contents are as predictable as its appearance. Campaigners for legalisation have been pushing such “Oregon-style” bills, to permit physician-assisted suicide (PAS) for the “terminally ill”, for around 20 years.

What is wrong with such bills as a matter of principle?

Far from effecting a “modest” change to the law, as their supporters claim, they would radically undermine the principle of the sanctity or inviolability of life, which has historically been fundamental to English law and to the profession of medicine. That principle does not require life to be preserved at all costs, but it does prohibit intentional killing and assisting suicide.

In 1994 a distinguished House of Lords Select Committee closely considered the arguments for PAS (lethal prescriptions) and voluntary euthanasia (lethal injections). It rejected them. The committee observed that the legal prohibition on intentional killing was the “cornerstone of law and of social relationships” that “protects each one of us impartially, embodying the belief that all are equal”. In other words we are all equal, however sick, disabled or elderly and however much we may mistakenly think we would be “better off dead”. All our lives are worth living.

If the law were to permit “assisted dying” (a weaselly euphemism) it would be adopting a new and insidious moral paradigm: it is reasonable for some members of society (the “terminally ill”, at least for starters) to think themselves “better off dead”; and it is right to help them kill themselves. No wonder disability groups in the UK and US are at the forefront of opposition. People with disabilities can see more clearly than others what the direction of travel would be and who else might be thought “better off dead”: them.

Kim Leadbeater MP claims her Bill has “the strictest safeguards anywhere in the world”. What is your response?

Her vaunted claim never amounted to much. None of the laws in those (still relatively few) countries that allow PAS or euthanasia have anything like effective safeguards, so they set a very low bar for comparison.

Her Bill would allow doctors to prescribe lethal drugs for a competent “terminally ill” patient who has a “clear, settled and informed wish” and has “voluntarily” decided to end their own life. The Bill’s two main “safeguards”, certification by 2 doctors and then by the High Court, would prevent neither mistake nor abuse.

As for certification by two doctors, Ms Leadbeater should be asked:

“Take Doris, an elderly patient. Why wouldn’t Doris satisfy this ‘safeguard’ if she were approved, after brief meetings, by two inexperienced and overstretched GPs (both keen advocates of PAS, the first of whom suggested PAS to Doris), who have no previous knowledge of her; nor expertise in the diagnosis and treatment of terminal illness in general nor her illness in particular; nor in the diagnosis and treatment of mental illness including suicidal ideation; nor in palliative care; nor in detecting undue influence or pressure; nor in assessing mental capacity, and both of whom doubt Doris’s capacity but have decided not to refer her for psychiatric evaluation?”

The requirement of two doctors’ certificates has proved signally ineffective in relation to abortion, which is widely available on request. Why should it prove any more effective in relation to PAS?

What of the Bill’s flagship “safeguard”: certification by the High Court that the criteria have been met? Well, it has been torpedoed by one of England’s most senior retired judges. Sir James Munby, the former President of the Family Division of the High Court, has carried out a detailed analysis (published online by the Transparency Project) of this aspect of the Bill. He has concluded: “In relation to the involvement of the judges in the process, the Leadbeater Bill falls lamentably short of providing adequate safeguards.” MPs in particular should take note.

Despite all this, campaigners and their many media and celebrity supporters persist in parroting the assertion that the Bill contains “strict safeguards”.

The Bill requires the patient to have a “terminal illness” expected to cause death within six months, and allows physicians to prescribe lethal drugs but not to inject them. If the Bill is passed, might these limitations later disappear?

Even leaving aside the Bill’s vague definition of “terminal illness” (why would it not apply to a diabetic who stopped their insulin?) and the practical difficulties of predicting with any accuracy that someone will die within six months, limiting access to such patients is clearly arbitrary.

The main argument advanced for legalisation is to put an end to suffering (by helping to put an end to the patient). But if suffering is thought to justify PAS, why deny lethal prescriptions to people who are suffering from non-terminal conditions, whether physical or mental, and who may face many years of serious suffering? And why not allow lethal injections, especially for those unable to commit suicide, even with assistance, such as the totally paralysed? (The vast majority of patients in the Netherlands and Canada opt for an injection over a prescription.) And why deny lethal injections to patients who are suffering but unable to request one, such as infants with disabilities? To underline the Bill’s incoherence, it does not even require that the patient be suffering at all, let alone experiencing suffering that is beyond alleviation by the UK’s world-leading practitioners of palliative care.

If the Bill is passed, human rights lawyers will soon be representing clients who protest that denial of relief to the chronically ill, to the paralysed and to the incompetent amounts to unjust discrimination, contrary to the European Convention on Human Rights.

The Dutch are the pioneers of “assisted dying”: their Supreme Court declared it lawful 40 years ago. They and their followers like Belgium and Canada are agreed that the exclusion of the chronically ill, and of euthanasia, is unjustified. (And the Dutch have allowed the euthanasia of disabled babies for almost 30 years.) If the Leadbeater Bill were passed, England and Wales would soon follow them down the “slippery slope”. The arguments against taking further steps down the slope are much weaker than the arguments against stepping onto it in the first place. The logic of legalisation is irrefutable.

What of the argument that public opinion polls show a majority in favour of legalisation and that opposition is a case of religious people trying to impose their morality on a secular, pluralistic society?

This is a very popular argument for legalisation; it is also one of the feeblest.

Public opinion polls are notoriously unreliable; results can be influenced by how questions are framed. Many people, for example, confuse “assisted dying” with palliative care.

Opinion can also be influenced by the mass media, with its relentless reporting of heart-tugging “human interest” stories in support of legalisation. How truly informed are the public about this issue? How many people, for example, know about the disturbing experience of countries like the Netherlands, and now Canada, that have slid well down the slippery slope? In any event, as history teaches, public opinion is an unreliable guide to sound ethics and public policy.

Moreover, while many religious people oppose legalisation, by no means all do. And many of those opposed to legalisation, like the Lords Select Committee mentioned earlier, and the House of Commons (which voted by a large majority against a PAS Bill in 2015) are secular bodies, scarcely apparatchiks of the Pope or the Archbishop of Canterbury.

Further, the Bill would require doctors who have a religious or moral objection to discussing PAS with patients to refer them to a doctor willing to do so. The Bill is, then, an imposition of secular morality onto the religious.