Assisted suicide: Whose life is it anyway?
The Sunday Times, Sunday, August 2nd, 2009 Source
Bryan Appleyard
Debbie Purdy was "ecstatic". It was a strange reaction to the news that it had suddenly become easier to be killed in Zurich. But the real reason for her elation was that the news also meant it might soon become easier to be killed in Britain.
The law lords had just ruled that the director of public prosecutions (DPP) must make it clear under what circumstances he would prosecute somebody for assisting a suicide. It was the law lords' last ruling before they themselves are killed off and replaced by a Supreme Court.
Multiple sclerosis will kill Purdy, 46, if the Dignitas clinic in Zurich does not do it first. Her argument was that she needed to know whether her husband, Omar Puente, would be prosecuted if he helped her make her last journey. If he would, she said, she would have to go and take the lethal dose of Nembutal soon, well before incapacity prevented her from travelling alone. If he would not, she could safely put it off for years.
The lords decided that not knowing which way the DPP would jump was an infringement of her rights, specifically article 8 of the European convention on human rights.
"Everyone," they said, "has the right to respect for their private life and the way that Ms Purdy determines to spend the closing moments of her life is part of the act of living."
Keir Starmer, QC, the DPP, has prosecuted none of the helpers of the 115 Britons who have gone to Zurich to die, but mostly his reasons have not been stated. The High Court backed his reticence, but the law lords said he must make his policy clear. He was not a happy QC.
"In the absence of a legislative framework," his statement said stiffly, "cases of this sensitive nature represent a significant challenge for prosecutors." In other words, dear politicians, get this damn thing off my desk . . .
Not yet. David Winnick, MP for Walsall North, intends to introduce a private member's bill legalising assisted suicide. Gordon Brown is more likely to publish a list of his worst mistakes than give it parliamentary time. A debate on suicide just before an election would be one big downer, a chaos of foaming columnists.
This leaves Starmer on the legal rack. He cannot simply restate the 1961 Suicide Act which decriminalised suicide but threatened anybody who "aids, abets, counsels or procures the suicide of another" with a 14-year prison sentence. That would mean he would have to reopen all the files of the 115 cases he has not prosecuted. But if he does not do that he will, in effect, be doing what parliament does not seem to have the stomach to do amending the act.
What, pre-election queasiness aside, is the political reality? A recent poll for The Times suggested that three-quarters of the population wanted to allow doctors to help terminally ill patients to end their lives.
Lord Falconer, the former lord chancellor, tested feeling in the House of Lords with an amendment to the Coroners and Justice Bill which would have removed the threat of prosecution from suicide assisters. It was rejected. An earlier bill proposed by Lord Joffe to allow assisted suicide was simply stalled in the Lords. As the House of Commons is the only place where any of this will be decided, we do not know where we stand.
Falconer is now pressing for the law lords' ruling to be used as the basis for a full debate on the legality of assisted suicide.
"The law," he writes, "gets itself into a mess when its scope goes beyond what society thinks is appropriate: criminalising circumstances in which no one is willing to prosecute is a clear example of the law overreaching itself. So the debate after the Purdy case, inside and outside parliament, will inevitably turn to whether assisted suicide should be lawful in Britain or not."
Here we have the real reason for Purdy's ecstasy, although as Brian Iddon, MP and chairman of the Care Not Killing Alliance, points out, strictly speaking her case achieves nothing immediately. "The case is more symbolic than significant," he said.
As the DPP has not prosecuted anybody for flying to Zurich, the chances of Puente being taken to court were always virtually zero, so that was not really what Purdy's epic legal struggle was about. No, the real fight was for the full legalisation of assisted suicide in Britain. Indeed, Purdy said she would "prefer to be able to have an assisted death in this country and not to have to travel".
Her case was financed by legal aid but she was supported throughout by Dignity in Dying, formerly the Voluntary Euthanasia Society, which campaigns for terminally ill patients to be allowed an assisted death.
It wants strong safeguards. It would not, for example, have supported the recent assisted suicide of Sir Edward Downes, the conductor. With his wife, Lady Joan Downes, he died at Dignitas early last month. She was dying from cancer but he, although almost deaf and blind, was not in a terminal condition.
Equally, Dignity in Dying would not have backed the death of Daniel James at Dignitas. He was a 23-year-old who chose death rather than a life with almost total paralysis after a rugby accident.
But in clear-cut cases Dignity in Dying campaigns for British doctors to be allowed to help patients to die.
The law lords' evocation of the European convention is the big clue to what is going on here. It was a case of shining bright continental sunlight on a typical British blanket of cloud, a legal and political muddle.
The first muddle is the protection endorsed all the way up to the High Court of the DPP's right not to give reasons for his inaction in the Dignitas cases. In effect, would-be suicide assisters are like drivers being told there is a speed limit but not being told what it is.
This sounds mad and is one reason why the law lords ruled as they did. It assumes trust in public officials and accepts that it is not always wise to expose all the reasons for their behaviour. Such trust, such deference, has gone.
The second muddle is the apparent disparity between the wishes of parliament and of the people. This has always been most apparent in the case of another life-and-death debate, capital punishment. The people are apparently in favour of hanging; parliament is against. At present the people seem to want assisted suicide; MPs, seemingly, do not.
The third muddle is the most important. This is our national confusion about what we think or perhaps our inability to think about the big questions. The big question here is this: is my death mine and mine alone? In an entirely secular, entirely individualistic society, the answer must be yes. In a religious society or one with a strong sense of communal values, the answer must be no, because then an individual is partly answerable to something bigger than himself. So which one are we?
The first point to make here is that it is the doctors who have dumped this one in our laps. Once death was easy. Your heart and breathing stopped and your body was buried or burned. But then we found we could keep people alive, we could resuscitate, restart hearts and artificially induce breathing. Death had been relativised. It had become, in many cases, a matter of choice for the doctor.
The second point is we all know perfectly well that doctors have been killing people for years. In the worst cases they have quietly prescribed overdoses of morphine rather than let their patient suffer longer. We used to turn a blind eye. It was the British way a way of trust and deference.
Now we must debate. The arguments against legal assisted dying fall into either the religious or the "slippery slope" categories. The full religious argument is seldom put as it is unpersuasive to non-believers. It is simply that suicide, in terms of Catholic theology, is "an injustice to God". We do not have "direct dominion" over our own lives. That belongs to God.
The slippery slope resistance is much more persuasive to the contemporary British imagination. It persuaded me. Many years ago I spent time in Holland researching a Sunday Times article on euthanasia the Dutch were then very keen on assisted dying. Too keen, I concluded; abuses were frequent and some doctors were suspiciously enthusiastic.
Iddon and many others agree. Iddon is not religious and his opposition to any change in the law is entirely based on practical considerations. Say an aged granny is consuming the resources of her family with medical and care expenses. Her continued existence costs time and money. Her family might try to persuade her to choose death, or she might feel guilty enough to choose it for herself. She would be coerced into dying.
Dignity in Dying admits it will be hard to frame a law that could prevent this, although in its view Holland, Belgium and the US state of Oregon have succeeded. Iddon says it cannot be done. Other opponents cite cases to show that these other legal systems often do fail.
History shows that legislation frequently has unintended consequences. Another piece of life-and-death law the 1967 act which permitted abortion was framed to allow pregnancy terminations within very restrictive parameters, primarily where there was a handicap or risk to the life of the mother. Yet we now have abortion more or less on demand, resulting in almost 200,000 terminations a year.
You may think this is a good thing. That is not the point. The point is that the outcome of the law is radically different from its intention. The same could happen with any legalisation of assisted dying.
A more sophisticated slippery slope argument is advanced by Nigel Biggar, Oxford theology professor and author of Aiming to Kill: the Ethics of Suicide and Euthanasia. He argues strongly against libertarian views that society should not interfere at all in the individual life.
"The problem is that what fends off interference also generates indifference and carelessness," he said. "If my life only has the worth that I accord it, then it has no objective value; and if it has no objective value, then why should anyone else care for it?"
The slippery slope here is not merely practical, it is moral and spiritual. The individual life is of interest to society as a whole that is why we have a National Health Service, after all. Therefore, its ending is significant to us all, not just to the individual. Biggar says that to accept any other position must logically mean there is no reason why we cannot help people to die because they are depressed, or for any reason they choose. He points to a Dutch court ruling in the 1990s which allowed a woman to be helped to die because of her grief at the deaths of her two children.
This, to me, is a powerful argument, a version of John Donne's "No man is an island". Once we accept that our existence belongs wholly to ourselves, then we must also accept that others are not obliged to care for us. That, unquestionably, is the road to hell paved, as ever, with good intentions.
Yet which of us would deny a loved one's release from intolerable, terminal suffering if offered the opportunity? That, too, can be seen as an obligation that connects us to others an ultimate form of caring.
The question now is: do we allow this to happen, quietly and undiscussed, as a very British muddle? Or do we fulfil the wishes of Purdy and fix it in law, in the language of human rights?
The answer depends on another question: who, exactly, do we think we are?