In May this year, crossbench Peer Baroness Meacher lodged new legislation to usher in assisted suicide for adults in England and Wales who have a terminal illness. The ‘Assisted Dying Bill’ will have its Second Reading in the House of Lords on Friday 22 October 2021.
History of UK assisted suicide proposals
Baroness Meacher’s Bill is not the first assisted suicide proposal to be considered by the UK Parliament. Labour Peer Lord Joffe mounted several attempts to change the law in the early 2000s but none of these progressed. The first major attempt to change the law came in 2014 under a Members’ Bill presented by Labour MP Rob Marris. The Marris’ Bill was voted down by a big majority – 330 votes to 118 – in the Commons on 11 September 2015.
Scottish parliamentarians have also considered two proposals. The first, brought forward by the late Scottish National Party MSP Margo MacDonald, was defeated by 85 votes to 16 in 2010. The second, lodged by Scottish Green MSP Patrick Harvie, was defeated by 82 votes to 36. A new proposal by Liberal Democrat MSP Liam McArthur was announced in July this year and will soon be lodged in the Scottish Parliament.
Attempts to change the law in the UK have been ongoing since the 1930s when the leading pro-euthanasia campaign, the British Voluntary Euthanasia Society (BVES), was founded. The organisation changed its name over the years and is now called Dignity in Dying. The first ‘Voluntary Euthanasia Bill’ was rejected by the House of Lords in 1936. Other bills were proposed and defeated in 1969, 1985, 1990, and 1997.
What does the Assisted Dying Bill say?
Baroness Meacher’s ‘Assisted Dying Bill’ is described as: “A Bill to enable adults who are terminally ill to be provided at their request with specified assistance to end their own life; and for connected purposes”. It would allow people over the age of 18 in England and Wales who are considered terminally ill, with less than six months to live to “request and lawfully be provided with assistance” (a means to administer lethal drugs) to “end their own life”.
The first thing to note about the Meacher bill is its use of vague, rhetorical language, out-of-step with the usual detailed legal language used in the drafting of legislation. This has the capacity to confuse readers and obscure important details about the function of the legislation.
What is ‘assisted dying’?
In healthcare, ‘assisted dying’ can be understood to encompass a range of interventions by doctors. For example, in certain scenarios doctors may elect to withdraw life-sustaining treatment from patients to allow them to die naturally. More widely, palliative care is understood to involve helping patients to have a comfortable and pain-free death.
The Meacher proposal would allow medics to assist patients to deliberately end their lives – commit suicide. This is markedly different to existing interventions by doctors. Whereas palliative care is designed to make death more comfortable, and the withdrawal of treatment is designed to bring about natural death more quickly, assisted suicide deliberately extinguishes life instantaneously.
What the Bill seeks to usher in could more accurately be described as ‘assisted suicide’. The use of ‘assisted dying’ seeks to obscure the reality of what is being outlined. The true purpose of the legislation is alluded to in section 6, which seeks to absolve doctors who facilitate in an assisted suicide of criminality. This section would amend the Suicide Act 1961, which established: “Criminal liability for complicity in another’s suicide”.
The problem with using rhetorical language, lacking the forensic detail usually afforded to legal documents, is that it colours political and public opinion. Using the term “assisted dying” instead of “assisted suicide”, and assistance to “end” a life rather than assistance in a “suicide”, makes the Bill appear uncontroversial and distracts from the serious ethical questions it raises.
As a result, polling on the issue tends to suggest strong support for ‘assisted dying’. But when you drill down into people’s understanding of the term, proponents have a problem.
Katherine E Sleeman, Laing Galazka Chair in Palliative Care at the Cicely Saunders Institute, King’s College London, illustrated this problem in an opinion piece for the British Medical Journal (BMJ) in which she wrote:
“The case for legalisation is largely driven by polls that show around 80% of the UK public support assisted dying. However, similar polls from elsewhere have revealed poor understanding of what assisted dying legislation encompasses.
“A 2017 New Zealand survey found that 66% of those polled thought assisted dying includes turning off life support, 51% thought it includes stopping medical treatment, and 59% thought it includes do not attempt cardiopulmonary resuscitation (DNACPR) requests. The people who most strongly supported assisted dying were more likely to think it included legal end-of-life practices.”
Politicians and the public alike are susceptible to making misinformed decisions due to misleading and rhetorical language.
Another example of misleading language can be seen in the use of the term ‘medicine’ to describe lethal drugs to be prescribed to patients wishing to access an assisted death. As legal commentator Joshua Rozenberg notes, ‘medicine’ is understood as something a patient ingests to improve their health, or alleviate symptoms. The drugs administered under an assisted suicide law would be better-described as ‘poison’ as they are designed to end life, not improve it.
In lodging her Bill, Baroness Meacher stressed that it would be the strictest law related to assisted suicide in the world due to the presence of an independent judge and safeguarding measures. However, a careful examination of measures highlights their insufficiency.
Defining terminal illness
The first proposed safeguard seeks to limit those eligible for an assisted suicide under the law. It is supposed to be available only to “adults who are terminally ill”. Section 1 (1) of the Bill states that: “Subject to the consent of the High Court…a person who is terminally ill may request and lawfully be provided with assistance to end his or her own life”.
Further defining terminal illness, Section 2 of the Bill states:
“For the purposes of this Act, a person is terminally ill if that person (a) has been diagnosed by a registered medical practitioner as having an inevitably progressive condition which cannot be reversed by treatment (“a terminal illness”); and (b) as a consequence of that terminal illness, is reasonably expected to die within six months”.
The major problem with this supposed safeguard is the fact that terminal prognoses are fraught. Many patients given six months to live go on to live much longer with specialist care and support often exceeding doctors’ expectations. Doctors cannot be sure how long a person’s life will continue, raising the prospect of patients opting for an assisted suicide in the belief that they have six months left when in fact they would have lived longer.
A false prognosis may inspire action to end life that would be regretted with the benefit of foreknowledge. This is a major ethical dilemma. The efficacy of this safeguard hinges on the phrase “reasonably expected to die within six months”. Critics will ask what is meant by the term “reasonably expected”? The professional judgment of doctors making such determinations varies.
Section 3 states that a patient would have to make a ‘declaration’ to opt for an assisted death in the presence of a witness. This would be signed off by two doctors, and finally by a High Court Judge. Before granting any request, the doctors must be satisfied that the patient has: “the capacity to make the decision”; and “a clear and settled intention” to end their life which has “been reached voluntarily” and “without coercion or duress”.
These requirements are presented as significant “safeguards” by pro-assisted suicide campaigners. However, it is completely unclear how each of the requirements could be satisfied unequivocally. And there is no room for error.
Under the legislation, the mental capacity of a patient must be determined by a doctor and, if required, a specialist. However, there is a great deal of debate on how capacity can be quantified for something as significant as an assisted death. A paper in the BMC Journal of Medical Ethics in 2014, during the last debate on assisted suicide, concluded that:
“The tension between differing conceptualisations of mental capacity presents difficulties for policy makers, lawyers and clinicians… The experts presenting evidence to the Commission on Assisted Dying were inconsistent in their conceptualisations of mental capacity as it relates to assisted suicide.”
Another danger arises when you consider patients with fluctuating capacity due to conditions such as dementia. The Bill states that a patient can change their mind right up to the last minute. What happens if a patient who was considered to have mental capacity when they made a declaration is not considered to have mental capacity when they change their mind?
In other countries such as Belgium, patients with dementia have been euthanised against their will because they expressed a desire to end their life when they were considered of sounder mind. How can we be sure that such a scenario would not take place in the UK? This would be an even greater danger if the law was to be extended down the line to allow involuntary euthanasia, as has happened in several other jurisdictions.
It is also not clear what a patient’s “clear and settled intention” to end their life looks like. Are they to have felt like they want to end their life for days? Weeks? Months? The declaration leaves it to the patient to decide that they have a settled intention to commit suicide and doctors to second this.
This supposed safeguard would instead lead to a piecemeal approach that sees some patients who have wished to die for a comparatively short period of time enabled to do so and other patients required to wait for a comparatively longer period of time before being granted a request.
There is also scant recognition of the fact that patients may have a settled desire to commit suicide because of underlying anxiety and depression or other forms of mental illness. Suicidality is and always has been treated as a negative symptom of mental illness which should be met with compassion and help to live, not die. The Meacher Bill would affirm suicide as legitimate, so long as suicidal thoughts are sustained. This would be the crossing of an ethical Rubicon.
Thirdly, there is no information on how medical staff are to ensure that there is no “coercion or duress” involved in the decision-making process.
People working with victims of abuse and exploitation will tell you that coercion can be subtle and hard to detect – often deliberately so. It is practically impossible for medical staff, a judge, or any other person to rule out coercion in the process. This safeguard cannot be described as such.
The experience of other jurisdictions confirms that coercion and duress cannot be ruled out, or even measured. In a letter to the British Medical Journal this month, Carol L Davis, a Consultant in Palliative Medicine at University Hospital Southampton, wrote:
“None of [the jurisdictions to have made the change] collect or report data necessary to determine if people choosing to consider ‘assisted dying’ are safe from abuse and coercion.”
‘Assisted dying tourism’
Another danger that is not often discussed is the effect the legislation, covering England and Wales, would have on nearby legal jurisdictions. The Meacher Bill states that those eligible for an assisted death would be “ordinarily resident in England and Wales for not less than one year”. It would be straightforward for a citizen in Scotland, Northern Ireland, the Channel Islands, the Isle of Mann, to travel to England for several months specifically to access an assisted death. Suicide tourism would become a reality.
Were this to come about, additional pressure would also be levied on politicians at Holyrood and Stormont to change their legislation to bring it into line with the rest of the UK. An assisted suicide framework in England and Wales would likely be the precursor to similar frameworks in other parts of the UK.
Too many risks
The assisted suicide legislation before parliament today is just as dangerous, and has just as many unanswerable problems, as previous bills. It is misleading. The public is not clearly informed on what it is seeking to bring about. And safeguards are clearly not fit for purpose. For these reasons, MPs and Peers must reject it.