The issue of assisted suicide and euthanasia has been presented in the media in a highly emotionally charged way in recent years, with several ‘hard cases’ of non-terminally ill people wanting to die. This has resulted in confusion over what exactly is at stake in the forthcoming Falconer Bill and of course, hard cases make bad law.
In the sad case of Tony Nicklinson, lawyers argued that he had Article 8 rights under the European Convention on Human Rights (respect for private life and family). In their view, these rights could not be respected unless his life was ended by a doctor.
However Article 8 also states that the right to respect for private life and family must, in a democratic society, be balanced with considerations of public safety, the prevention of crime, the protection of health and morals, and the protection of the rights and freedoms of others. In classical Liberal terms, a balance must be sought between personal freedoms and other-regarding freedoms.
This balance is also important to look for in the Falconer Bill – does this Bill protect the vulnerable from emotional bullying and intimidation by those who might have an interest in their suicide? Or does it tilt the balance in favour of individual choice for some, at the expense of the many?
In my judgement, there are insufficient safeguards for cast iron protection of the vulnerable in Falconer – who decides what is ‘mental capacity’ or ‘a settled wish’ and how would a doctor (not necessarily their GP, as allowed in the Bill) really know that a dying person is not subject to subtle coercion without a full psychiatric assessment (not required in the Bill)? We know that elder abuse is being exposed each day in some of our care homes, for example.
In Oregon, the US State on which Lord Falconer bases his Bill, there has been a huge 430% increase in assisted suicides since its introduction in 1998.
With documented cases of disabled and elderly patients ending their lives for reasons other than imminent death, such as ‘feelings of being a burden’ and being ‘tired of life.’
Only a third of cases report ‘unbearable pain’ as a reason for requests of assisted suicide, showing that in Oregon, the ‘safeguards’ are not as rigorous as claimed.
All of us need to consider the fact that there are limits to choice in a liberal society. Even in a free society there are boundaries to our autonomy. We are not entitled to exercise ‘freedoms’ that will endanger the reasonable freedoms of others. Every law limits choice and stops some people doing what they might desperately wish to do. This is in order to maintain protection forothers.
It is essential in my view, to maintain the firm boundary of the current law, rather than risk opening the door to abuse of the most vulnerable members of our society.
Photo by Greg Knapp
* Helen Tedcastle is a member of the Shrewsbury and Atcham local party
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16 Comments
I am afraid that I disagree. The real “abuse of the most vulnerable members of our society”, in my view, is the fact the current law forces a number of people to choose between a life of misery or a slow, painful death and, in some cases, both. Tony Nicklinson spent seven years in a living hell, entirely paralysed from the neck down and and therefore unable to kill himself. It was crystal clear to all involved that he had made a settled, fully informed decision that he wished to die, but the law forced him to remain alive until he eventually starved himself to death, taking over a week to die. If that is not abuse of a vulnerable person, I do not know what is.
I am happy to debate the means by which we ensure that there is no coercion and that only those who have a made a full informed decision with no pressure from others are able to receive assistance in committing suicide, but there is, in my mind, no debate to be had on the principle that people in Tony Nicklinson’s situation should be permitted such assistance.
What I was not clear on in the article was whether the author agreed in principle with assisted suicide but was unhappy with the proposed safeguards in the Bill, or whether she disagreed in principle. I suspect that she disagrees with the principle behind the Bill and would oppose any legislation, regardless of the safeguards it contained. I believe it is possible to protect the liberty of those who wish to receive assistance in committing suicide AND to protect the vulnerable from coercion. Indeed, despite the statistics and links in the article, none of them pointed to any evidence that people were being coerced into committing suicide. All they showed was that there had been an increase in the use of legislation over time. That is entirely unexpected – as the law becomes more familiar and as attitudes towards assisted suicide change, it is natural that the law will be used more frequently. Perhaps it could be because people are seeing the positive alternative to suffering that the law in Oregon offers that is the cause of its greater use. There is no evidence that it is being misused.
After the passing of an law allowing assisted suicide that there should be a huge rise in assisted suicide is hardly in itself evidence after all that was surely the point of the Oregon law?
Also in terms of mental capacity surely there has been a lot of work done to establish test of this given that people can be sectioned or have a power of attorney activated amongst other things if they are deemed to lack mental capacity.
Disagree We need some legal framework to give people right over there own life including ending it We do it for animals so why not man.
Helen, I too am sceptical about the bill, however this passage in your article is a bit too stiff and wideranging for me:
“In my judgement, there are insufficient safeguards for cast iron protection of the vulnerable in Falconer – who decides what is ‘mental capacity’ or ‘a settled wish’ and how would a doctor (not necessarily their GP, as allowed in the Bill) really know that a dying person is not subject to subtle coercion without a full psychiatric assessment (not required in the Bill)? We know that elder abuse is being exposed each day in some of our care homes, for example.”
– ‘mental capacity’ is a pre-defined term in the mental capacity act 2005. There are issues with the implementation to date of this legisaltion, which give good reasons to be sceptical about the implementation of this Bill, too, but what you right is a trashing of a clearly defined and increasingly fundamental concept in law.
– the question you raise about coercion is valid, but applies equally under the mental capacity act. I believe the phrase in question is ‘reaosnable steps’ – have reasonable steps been taken on behalf of the assessor to establish that no coercion is in place? There is no mandatory requirement for a full psychiatric assessment under the mental capacity actto be carried out for an advance directive to be put in place to decline live-giving treatment, for example.
If you are stating that a higher, more rigorous test of mental capacity assessment than is usual is needed for assisted dying, that may be valid, but I still feel that would be legally and practically problematic.
RIchard Wingfield, Tony Nicklinson was arguably not a vulnerable person in that he was able to express his wishes and argue his case. There are people in worse situations than him who cannot express their wishes.
No.
@ Richard Wingfield: Tony Nicklinson would not be covered by the Falconer Bill. As I explained in my piece, he was not terminally ill but disabled. So if you think he should have had the right to a physician-assisted suicide, the Bill would have to include the disabled who are not terminally ill. Do you think that’s a good idea?
I am not in favour of a law which sanctions the state to provide physician-assisted suicide ie: legalised enabling of killing and allowing doctors (against their wishes) to change the terms of the Hippocratic Oath. As the title of the piece states, I think the Falconer Bill should be rejected on the grounds of insufficient safeguards for the most vulnerable. It opens the door to abuse – this abuse will indeed be hard to detect, because the health trusts will rely on the facilitating doctor to report accurately. This in itself, is open to abuse unless there is rigorous monitoring and vigilance.
In Oregon, no such checks are in place and Falconer mirrors the practice of Oregon. Silence on the issue of checks for depression/ family relationships and context of the patient (remember the doctor does not need to know a patient making the request) is not a reason for us to be complacent about this method of ending life.
@Simon: If assisted suicide is for a tiny number of people as Falconer persistently claims, then shouldn’t a large and steady annual rise in the number of assisted suicides in Oregon and elsewhere where this practice goes on, give cause for concern? ‘Mental capacity’ does not cover checks for depression and other less dramatic(than sectioning) but serious mental health problems – there is no mandatory mental health check for patients in the Falconer Bill. Many doctors misdiagnose and/or fail to spot the signs of depression – this is undoubtedly one of the reasons why people may request assisted suicide – not unbearable pain.
I for one do agree with my every fibre that should someone have decided enough is a enough they should be able to go without resorting to jumping in front of a train
I would not wish ill health on you but during an operation the anaesthetic stopped me breathing for some time result oxygen for some period of time then not able to lift my arms. I got better however immediately after operation I started with chronic illness. I am not ready to go but with respect who are you to say when I have had enough.
Look after Your life not everyone else’s
Sorry for rant grr but it really makes me sick
Allan
Helen
Although you and I agree on most matters debated on here LDV, I suspect this one is the exception.
Before I get into a lengthier post however, I would like to ask if there any circumstances in which you would consider assisted dying to be acceptible?
With reference to the Falconer Bill, it seems reasonable to me that the same test for mental capacity be used under it as under the Mental Capacity Act 2004 as Matt (Bristol) states would be the case.
I assume that the Falconer Bill would give doctors the option of not being involved in assisted suicide and provide a means for a person to use alternative doctors.
One of the arguments used for assisted suicide is to give the terminally ill and badly disabled the same ability to die as an abled person. I think this is a flawed argument. Helen Tedcastle raised the issue of depression.
I don’t think it is easy for an abled bodied person to kill themselves. There are various methods but I am still looking for one which will be 100% successful, not cause me any noticeable pain, or involve others which could cause them mental stress (i.e. being run down by a train or car). I haven’t found such a method. The idea that I could get medication from my doctor so I could kill myself appeals greatly and I would like this option. Does my long term depression (that the NHS has failed to alleviate) mean I shouldn’t have this option? I don’t think so.
Therefore if someone’s terminal illness makes them depressed this shouldn’t exclude them from being able to decide that the time is right for them to die.
I think the case of Tony Nicklinson should also be allowable and I think those suffering from long term depression should also be given the same opportunity as this bill gives to the terminally ill.
Therefore I disagree with Helen. This bill should be supported as the first step in giving the right of everybody to assisted suicide.
Thanks for all your comments so far. Some really interesting and thoughtful points raised. I’ll try to respond to ones I haven’t already commented on.
matt (Bristol): You make a great point in relation to ‘mental capacity’ – it needs unpacking as a term and I couldn’t go into that area in detail in a word-limited article – I wasn’t trashing it I don’t think: “… have reasonable steps been taken on behalf of the assessor to establish that no coercion is in place? ” Exactly, this point is not clear at all in the Bill. As far as I can see in the Mental Capacity Act, there are sensible steps to establish capacity for those who might need to be sectioned. There is insufficient guidance here for physician-assisted suicide cases because of the very finality of the decision. Any fluctuation in mental capacity has insufficient time to present in the two week ‘cooling off period’, I would suggest.
One of my other concerns in relation to this issue is depression, and welfare problems/family relationships, which are not always spotted even by experienced doctors. Action on Elder Abuse are also concerned about this in relation to the Falconer Bill and have written a letter to the Lords about it. It’s worth looking at:
https://www.facebook.com/pages/Action-on-Elder-Abuse/254619713512?hc_location=timeline
Terry: I take your point about animals but I don’t see them as being in a great position compared to humans, as they are euthanised for a variety of reasons (for being old, sick but not terminal, no longer wanted, homeless), and are at the mercy of their owner/ animal home. The law is there to protect humans from doing this kind of thing to other humans.
Allan: Thanks for your comment. As this is an opinion piece, it’s not imposing anything on you. It’s my opinion. I tried to look at this from the point of the view of liberal balancing of private and personal freedoms, which is what I hope the Lords will do too.
Stephen: I haven’t been convinced as yet that assisted suicide is the way this society should be heading, as in all jurisdictions where it has been implemented, the safeguards are too porous to be really sure that vulnerable people are protected from those who would do them harm.
I am sceptical that the the safeguard of allowing only those who in the opinion of a doctor, have six months to live, will not be eroded progressively over time to include more and more ‘qualifying groups.’ I am also concerned about changing the role of doctors when they are opposed almost unanimously, to assisted suicide. However, I do want to see improved end of life care with patients being involved and greater investment in palliative care.
Disagree strongly with this article, and indeed with the underlying sentiment, which says that we shouldnt allow freedoms that a minority might misuse…which isnt a liberal sentiment at all.
How many deaths will it take till LibDems realize that freedom isn’t everything?
No, freedom isn’t everything – but it is kind-of at the heart of liberal values; and the right to life is a right, not an obligation.
I don’t see any sign yet that liberal opinion has turned against assisted dying in the countries and states where it has been legalised.
An assisted suicide bill coming into force and assisted suicide going up is not really that shocking. The problem is Helen that you are trying to make practical points on an issue which to you is not a practical one, but a religious one.
No matter what Law was proposed, you would be against it – this really compromises the persuasiveness of your position.
Right now, looking at the harms potentially caused by both sides, we have situation where a substantial number of people (and their families/loved ones) have to suffer massive indignation and pain before they die,
The harm put forward by the side against the idea of assisted suicide is that people may be bullied and forced into killing themselves. Now, this is certainly not a laughable point, but I think that if someone is the kind of sick and twisted individual who would bullied another to the point of killing themselves, they would probably do it regardless of what the Law has to say about the issue and in fact would be in a weaker position if this bill passed. Why?
Well, right now, they can bully someone into killing themselves and then say they it was what the other side wanted and this all happens in the privacy of their own home, making the evidence much harder to be found against them; however, if there exists a legal process with medical oversight by which this can occur, this has to happen in the full light of the public eye, meaning that these people will have a much harder time bullying the person through the public process (due to the oversight and support in place for the individual) and no justifiable reason for doing it in private.
Assisted suicide will occur on both sides, but on the side with a legal process there is oversight, whilst the side without this forces it to be done in private, where more abuse is possible. That mixed with the harms caused by those who are forced to live on when they wish not to make the arguments against assisted suicide seem weaker than the arguments for it.
Some believe it right to be allowed to linger to the last however desperate the situation; others don’t. It is matter of recognising the equality of our citizens to respect these choices equally. Advance Directives remover the risk of bullying and should be legally enforced as to the times and terms of my “suicide” so called. As to sustaining life in conditions of chronic mental/physical disability, such as the person involved is not aware of any choice as such, surely the burden of maintenance fairly falls on the shoulders of those who make the decision to sustain such an existence? And is not a matter in which the State should involve itself at all, beyond enforcing rules against cruelty and mistreatment?
Although you and I agree on most matters debated on here LDV, I suspect this one is the exception.
Before I get into a lengthier post however, I would like to ask if there any circumstances in which you would consider assisted dying to be acceptible?
I asked Helen a similar question on another thread.
Obviously there’s very little point in lengthy discussions about practicalities if there is an underlying objection on one side to the principle of assisted suicide itself.