Tony Nicklinson: Can Law Change on Assisted Dying and Protect Vulnerable? [BLOG]

In a previous post on the cases of Tony Nicklinson and 'Martin', I argued that Parliament's reticence to engage with the debate on the legalisation of assisted dying (assisted suicide and euthanasia) may (at least partially) be explained by the substantial political risk entailed in supporting legal change in the face of the 'vulnerability' objection. I also advanced that the vulnerability objection, while deserving of attention, was not a knockdown argument against legalisation of assisted dying.

In this post, I attempt to clarify what the vulnerability objection is, that is, what concerns it raises against the legalisation of assisted dying, and who the 'vulnerable' are. This post also presents an overview of the safeguards designed to ensure that assisted dying is implemented without diluting the protections afforded to certain members of society. It ends by challenging the basis for assisted dying chosen by campaigners for a change in the law.

A detailed study of the safeguards present in the laws and practices of jurisdictions where assisted dying is lawful can be found in the briefing paper Professor Penney Lewis and I wrote for Demos and the Commission on Assisted Dying.

The vulnerability objection

The vulnerability objection advances that the legalisation of assisted dying will lead certain members of society to be subject to increased active or passive pressure to take steps to end their lives, against their wishes or interests. It is important to highlight that the objection relates to a possible lessening of legal protection. Thus for those opposed to assisted dying, the law at present (which prohibits euthanasia and some suicide assistance) adequately protects the vulnerable.

This underlying assumption is questionable, since prevalence data on end-of-life decisions in the UK involving medical practitioners from 2007-08 estimates that voluntary euthanasia occurred in 0.21 percent (95 percent CI, 0-0.52) of deaths, and euthanasia without explicit request occurred in 0.30 percent (95 percent CI, 0-0.60) of deaths. Since these practices were illegal, we have no way of knowing whether or not these cases of euthanasia involved abuse, or whether the patients who died were vulnerable. Furthermore, there have been successful prosecutions under the Suicide Act 1961 where the guilty party's encouragement or assistance in suicide clearly was abusive.

Those who oppose assisted dying must concede, therefore, that a threshold number of cases relevant to the vulnerability objection already occur. Thus the fact that some apparently vulnerable members of society received assisted dying after a change in the law would not demonstrate that these people were actively or passively pressured into ending their lives because of the new law.

The vulnerability objection suggests that two types of pressure will weigh on vulnerable members of society. The first is active, where people attempt to influence another to take steps to end his or her life. A stereotypical example would be statements like, 'You've had a good innings Grandma; don't you think it's time to go?' made by greedy relatives looking to inherit from an elderly family member. The second type of pressure that allegedly will weigh on the vulnerable is passive. Thus vulnerable members of society will reluctantly request assisted dying because they feel that this is what loved ones or society expect, even if nothing explicitly is said.

In recent years, the vulnerability objection has taken on an added degree of sophistication. The objection now includes an argument based on the fact that laws have symbolic power, that is, that they reflect the prevailing attitudes of society at a particular point in time. Thus by passing a law that allowed assisted dying, for example, for the terminally ill or those with severe incurable disabilities, it is claimed that Parliament would declare that the lives of the terminally ill or the severely disabled were worth less than the lives of those not included under the law. Such a measure, therefore, would both actively and passively pressurise people in the groups 'singled out' to seek an assisted death.

Who are the vulnerable?

Vulnerability is a slippery concept.

We might argue that it is in fact an empty term used to considerable rhetorical effect because of what the word 'vulnerable' means. Thus vulnerability may be used to cover people and groups of people who don't think themselves vulnerable. In the debate over whether to decriminalise assisting another to travel to another jurisdiction where assisted suicide is lawful as part of the Coroners and Justice Bill 2009, Baroness Warnock stated:

"Being vulnerable is a judgment made by somebody about another person [...] it is not a judgment that one ever makes about oneself [...] There is a very small category of people [...] to which belong some of those people who have gone to Switzerland to commit suicide, who do not want to be categorised as vulnerable. They therefore make their own decision."

If the vulnerability objection is to have any substance, therefore, it is necessary to discover what vulnerability is. One plausible candidate for vulnerability might be systemic disadvantage as a result of legal or social discrimination. There arguably already are groups in society who are on a less secure footing than others, such as the elderly, the disabled, and the infirm. It would make sense, therefore, that people in these groups would also fall victim to an assisted dying law that exerted pressure on those regarded as less valuable to close personal relations or society. However, in a study conducted on the impact of legal physician-assisted dying on vulnerable patient groups in the Netherlands and Oregon, Margaret Pabst Battin and others found:

"No current evidence for the claim that legalised PAS or euthanasia will have disproportionate impact on patients in vulnerable groups. Those who received physician-assisted dying in the jurisdictions studied appeared to enjoy comparative social, economic, educational, professional and other privileges."

Baroness Finlay and Robert George have questioned the relevance of this evidence, arguing that the categories used by Battin et al will not uncover vulnerability. Finlay and George argue that vulnerability is derived from 'factors that apply across the social spectrum', such as 'emotional state, reactions to loss, personality type and situation'. Finlay and George in particular highlight that:

"A greater resort to PAS [in Oregon] among better educated and financially affluent persons, particularly those over 65 years of age ... warrants further enquiry to ascertain whether they have vulnerabilities to influence to [sic] accessing PAS."

It appears, therefore, that the whole of society is potentially vulnerable to active or passive pressure to seek assistance to die, especially educated and wealthy retirees. (Alternatively, the resort of educated and wealthy retirees to assisted suicide in Oregon may reflect the fact that this group is most likely to be informed of choices that exist at the end of life, and has a high prevalence of terminal illness).

While it may initially appear disturbing, the fact that no single group in society will be more disadvantaged than any other causes the vulnerability objection to lose a considerable amount of force. Since the risk of vulnerability is equally distributed, legislators need only ensure that assistance to die is not provided to any ineligible person (while accepting the point made above that some people will always break the law).

This is a feature of good legislation - measures passed should apply only to those intended to benefit from them. Moreover, much of the political risk that results, for example, from the accusation that one is discriminating against the elderly or disabled, potentially falls away.

Assisted dying safeguards

It is possible to adopt a number of safeguards to protect individuals who should not receive assisted dying, whether because of vulnerability or for other reasons. Only a brief presentation is possible here; more detailed study can be found in the briefing paper.

Two of the most important safeguards in an assisted dying law are the requirements that the person requesting assistance to die has decisional capacity and is acting voluntarily. These features are not unique to assisted dying legislation; they are also requirements of consent to medical treatment.

If a person lacks decisional capacity, then he or she is unable to make a decision about their welfare. A person requesting assistance to die who lacked capacity could not make a decision about whether assisted dying was in their interests, and thus would not be allowed to receive it. Decisional capacity is a requirement in all the legal regimes that allow assisted dying, and appears to be effective in protecting people who are unable to make an informed choice.

The voluntariness requirement responds directly to the risk of active or passive pressure being placed on the persons requesting assistance to die. In order to ensure that the voluntariness requirement is met, the person assessing the request for assistance to die should not be a potential source of pressure. Ways of ensuring this may be to have the person requesting assisting see more than one assessor (Netherlands, Belgium and Oregon), or to have the request witnessed by people who do not stand to gain from the person's death (Oregon).

Before the fact scrutiny is a safeguard of the assisted dying laws in the Netherlands, Belgium and Oregon. For example, in the Netherlands, an independent consultant must establish whether the criteria for euthanasia are met. In the Netherlands, a network of specially trained euthanasia consultants (SCEN) exists, and euthanasia is very unlikely to occur in cases where a SCEN consultant has found that the criteria for euthanasia are not met. Although it is not the case in any jurisdiction where assisted dying is lawful, it has been suggested, for example by author Terry Pratchett, a tribunal that could hear requests for assisted dying.

After the fact scrutiny is designed to ensure that the law has been followed in cases of assisted dying. The requirement that each case of assisted dying be reported and scrutinised for compliance with the law is vital. While it is evidently not possible to bring back a person who has improperly received assistance to die, effective monitoring can ensure that lessons are learnt from previous cases, and that assistors who have not complied with the law receive appropriate sanctions.

The basis for assisted dying

As a final point, whereas the risk of vulnerability is equally distributed across the population, if assisted dying is restricted to a certain group of people, for example, the terminally ill or severely disabled, the objection that some people are being 'singled out' by the law resurfaces (as well as the political risk). This is because as well as people who are not vulnerable who request assistance to die under the law, it is possible that vulnerable people within these groups will request assistance to die as a result of active or passive pressure. While safeguards are likely to ensure that requests from the vulnerable are refused, it is undesirable that there be more requests for assisted dying from the vulnerable in one group in society than the vulnerable in society as a whole, since this increases the relative risk for that group.

Thus rather than proposing assisted dying (which is in fact only assisted suicide) for only the terminally ill, a more appropriate basis for assisted dying is a criterion that is capable of applying to all members of society, for example, one of 'hopeless and unbearable suffering' (The Netherlands). Tony Nicklinson and Martin's cases highlight the fact that the restriction of assisted dying only to the terminally ill is arbitrary and unjustifiable.

It is wrong to seek to change the law only for the benefit of the terminally ill, some of whom may never consider assisted dying, while leaving out people such as Tony Nicklinson and Martin, who desperately wish to exercise control over the moment and manner of their death.

Isra Black is a PhD candidate and visiting tutor at the Centre of Medical Law and Ethics, King's College London. His PhD project, entitled 'Better off dead? Best interests assisted dying', explores the possibility of a new model for legalisation of assisted suicide and euthanasia in England and Wales.

The views and opinions expressed are those of the author and do not necessarily reflect the views of King's College London