Would permitting terminally ill people to obtain a consenting doctor's help to end their life really undermine our entire system of law? Yeah ... nah.

Grant Illingworth QC is concerned that if David Seymour’s End of Life Choice Bill is enacted, we somehow would be breaching the social contract on which our entire system of law rests. That would be a pretty big deal, if true.

The problem with this argument is that if it is correct, we’ve already broken that social contract long ago. Which makes me think that his objection can’t really be as strong as it first appears.

His claim is this. The State has a fundamental obligation to protect its weakest and most disadvantaged members. Allowing doctors to actively provide aid in dying breaches this obligation, because some weak and disadvantaged individuals inevitably will die because of it. Therefore, if the State permits such action to take place, it will breach its obligations to its citizens.

How do we know that weak and disadvantaged individuals will die? Well, he says, some people will manipulate their dying relatives into requesting aid in dying against their will. And as “doctors are fallible, just like any other human being”, they won’t be able to pick this up.

But here’s where things get tricky for Mr Illingworth. Because, any “competent” person may decide to die under the law as it is at the moment. 

If you have cancer, you can decide to stop treatment at any point. If you are on life support, you can demand that it be removed. The fact such choices inevitably will cause your death is irrelevant to your right to decide.

You can even choose to starve yourself to death if you want to, and the law actively forbids anyone from intervening to stop you. 

All of these decisions then rest upon a determination that a person is competent to make them. If you meet that test, your choice is sacrosanct and no-one may second guess it. But if you aren’t competent, then your decision does not have to be respected.

And determinations of competence are something that doctors make every time they assess whether someone is properly consenting to treatment. Equally, if a non-competent person seeks to end treatment, doctors may be ethically required to seek court permission to carry on doing so. 

So, here’s the issue with Mr Illingworth’s position. As our law presently allows people to choose to die on a daily basis, and doctors regularly are determining that they are competent to do so, how do we know that these decisions are not being manipulated? 

After all, greedy or mendacious relatives may be trying to get their relatives to end treatment to die sooner. They may be pressuring them to turn off their life support systems. They may be convincing them to refuse food and water until they pass away from lack of sustenance.

Yet our law says concern about such possible manipulation is not enough to override the right of competent patients to choose all of these outcomes. That’s because our legal system actually tries to balance two competing values; protection of the weak and disadvantaged, and promoting individual autonomy.

Yes, we want to make sure that decisions at the end of life really reflect a person’s freely made choices. But we also want people to be able to make such choices; to decide for themselves what “a good death” looks like on their terms.

As such, either Mr Illingworth’s argument proves that our current system of end-of-life decision making is a breach of the social contract that underpins our law, or it is flawed in its inception. Because once you accept that a person has a right to choose treatment options they know will result in their death, then you face all the problems of coercion and determining competence that he raises.

Here we may pause to note that Mr Seymour’s Bill actually imposes far stricter protections for those who would request that a doctor provide them with the medicine to die more quickly than presently exist for those who choose to die by rejecting treatment. 

As such, the challenge for Mr Illingworth is this. How does it fatally undermine the social contract on which our law is based for me to ask a doctor for medicine that allows me to die peacefully when I choose, when my telling my doctor “no more food, water or treatment – let me die” does not?

Of course, Mr Illingworth is right that we need to protect the weak and disadvantaged in our society. But Mr Seymour’s bill does this far more extensively than do current legal rules around end of life choices. And it also allows those truly competent people to decide for themselves how they want to die.

And that is something that would improve our law, not undermine it. 

Comments (18)

by Gavan O'Farrell on June 24, 2019
Gavan O'Farrell

I get the point that suicide is legal (whether or not it is moral) and that the law won’t intervene to thwart sane suicide.  However, I don’t think the scenarios in the article illustrate this.  

Ceasing cancer treatment and removing life support will not “inevitably” cause death.  And death may not be the intention:  indeed, it seems to me unlikely that death is intended.  The patient just doesn’t want the treatment and the machines:  the decision is to allow nature to take its course.  That’s not suicide. 

The same is true of self-starving.  In fact, in the case you link to, it is very clear that the man does not “choose to starve [himself] to death”:  he hopes his protest will achieve something, so he can resume eating and living.  This is fairly typical of hunger strikes, isn’t it? 

This may not be fatal to your argument, though.  It remains that suicide is legal and the law won’t interfere with sane suicide.  

However, I think the argument in the article leaps from the value of “promoting individual autonomy” to the policy position of wanting to “make sure that decisions at the end of life really reflect a person’s freely made choices”.  The leap (if I’m right) is in the “make sure”. 

There is a difference between allowing a person to make and implement their freely made choices and “making sure” things pan out the way the person wants.  “Allowing” allows nature to take its course (as in the above scenarios), while “making sure” involves intervening. 

A respect for autonomy justifies the lesser step of “allowing”.  The far greater step of intervening still needs to be justified.  Especially as it is proposed that such intervention be institutionalised by the End of Life Choice Bill.

by Andrew Geddis on June 24, 2019
Andrew Geddis

Gavan,

But we may just as well say that those who request aid in dying also don't really "want to die". The fundamental point is that they already are dying (they have to be to qualify for the aid). What they then "want" is control over the circumstances of that death, so as to retain autonomy/avoid pain/etc (see here for why people make such requests). So, the distinction between a person who demands life support be discontinued/dialysis be halted/chemotherapy be stopped/fluids not be administered because they "don’t want the treatment and the machines" and a person who asks for a fatal dose of phenobarbital for the same autonomy based reasons seems illusory to me. 

Also, Illingworth's challenge didn't involve an act versus omission distinction along the lines you propose. I suspect that's because it's just not a very compelling one to most of the public - I think most people simply don't see any real difference between a doctor disconnecting a breathing tube and letting "nature take its course" and a doctor speeding nature's course along with a fatal dose of medicine. I know some ethicists believe this is a fundamental rubicon which once crossed leads who knows where. But my sense is that this simply isn't how most people's moral intuitions work in this space. 

Instead, Illingworth's critique focused on the  "danger" to the weak and vulnerable posed by the proposed law, which is a line of argument with more political salience. My response then is that all those dangers already exist (in much less regulated forms) under current legal processes - yet we tolerate them. So I'd flip the script and ask why wouldn't we allow for assisted aid in dying, given that there'd be greater protection for those who request it than exists for those who "choose" to die at present?

by Geoff Wane on June 24, 2019
Geoff Wane

The Seymour bill provides provision for a medical practitioner to take no further euthenasia action if they have "reasonable grounds to suspect that a person who has expressed the wish to exercise the option of assisted dying is not expressing their wish free from pressure from any other person". They then tell the patient and fill in a prescribed form saying they are not taking any further action and send it to the Registrar (who can refer the matter to the Police).

But it is not clear what the person who applied pressure may be charged with or with what range of sentencing. Section 27 "Offences" only covers someone who completes, alters or destroys the prescribed form without consent of the patient.

So much of the opposition to the bill is based on the potential for coercion. I think this is vastly exaggerated. But adding something that makes coercion a criminal act with severe penalties could overcome most of these objections.

by Andrew Geddis on June 24, 2019
Andrew Geddis

But adding something that makes coercion a criminal act with severe penalties could overcome most of these objections.

Something that Assoc Prof Colin Gavaghan and I called for in our submission on the Bill!

by Colin Gavaghan on June 24, 2019
Colin Gavaghan

@Gavan: hunger strike cases pose a bit of a challenge re intent, but there are certainly other cases of self-starving where the intention is absolutely, unambigously to die. And, provided the person is competent and uncoerced, our law respects that right. There are arguments - primarily deontological and theological - that make a big deal of the difference between acts and omissions (although they blur when it comes to treatment withdrawal!) But as Andrew suggests, those sorts of arguments don't tend to resonate very far outside of religious seminaries and philosophy departments. So the objections tend to be cast in terms that make sense to laypeople - concerns about risks to vulnerable people. But those risks are really no different to what we already allow (coercion, confusion, depression, etc) Real risks, yes, but risks we already manage. (Or if we don't, we have far bigger issues than Seymour's bill.)

by Ross on June 25, 2019
Ross

It’s hard to take Grant’s concern too seriously, as doctors already make end of life medical decisions. Surely Grant would rather that those decisions were transparent and well articulated instead of being clouded in secrecy.

https://www.nzma.org.nz/journal/read-the-journal/all-issues/2010-2019/2015/vo-128-no-1418-24-july-2015/6593

by Gavan O'Farrell on June 25, 2019
Gavan O'Farrell

@Ross, in case I'm the Grant you refer to, I'd prefer very few homicides behind a cloud of secrecy to many transparent homicides.  Transparency has its own value, but I don't believe it provides justification for anything else.  

by Ross on June 25, 2019
Ross

Gavin, 

I was referring to Grant Illingworth.

if you have evidence of homicides, you should contact police. Immediately.

by Gavan O'Farrell on June 25, 2019
Gavan O'Farrell

@Andrew and Colin, I agree that people who request euthanaia want to die and that some hunger strikers are also attempting suicide.

I'm not sure I agree that the distinction between commission and omission is as esoteric as you say.  The law often expressly covers both, which presumes that both are known to its readers.  And I agree that, in many situations, there is no substantive moral difference between them - that a failure to save can be akin to "causing" harm.  Usually, I think commission and omission are considered on par when they have the same result. 

In euthanasia, intervening and not intervening have different results - both dire, in their own way, but different.  So, the difference between commission and omission is a real topic.  

I was also thinking about intent, which is central to the law and familiar to everyone.  In euthanasia, the "doctor" intends that the patient die.  The doctor who does not intervene does not intend either death or harm.  They allow the harm to continue, but they do not intend it.  True, a lot of people allow themselves to be captured by consequences and emotion, but I think a lot of people still regard intent as significant. 

As the topic has opened up somewhat, I also want to express some interest in those "eligible" patients who would prefer to keep living - the great majority, as I understand it.  Once euthanasia is institutionalised, they'll feel themselves surrounded by the issue:  it will be an elephant in their room.  Pressure or not, the question will be hanging in the air.  A person who wants to live (a modest enough ambition) should not be placed in a situation in which they feel it necessary to say so.

 

by Gavan O'Farrell on June 25, 2019
Gavan O'Farrell

@Ross.  My bad.

by Lee Churchman on June 25, 2019
Lee Churchman

I think most people simply don't see any real difference between a doctor disconnecting a breathing tube and letting "nature take its course" and a doctor speeding nature's course along with a fatal dose of medicine.

See James Rachels, Euthanasia, Killing, and Letting Die, for a classic defence of this view.

Even so, as we've discussed before, the right to refuse treatment stems from the wholly negative right not to have things introduced into one's body non-consensually. You can then argue that there is no genuine right to be "let die", but that instances of people being "let die" piggyback on the right to refuse treatment. Hence, an equivalence between killing and letting die (as Rachels argues for) is besides the point. 

by Colin Gavaghan on June 25, 2019
Colin Gavaghan

Hi Gavan, thanks for the thoughtful replies.

"the difference between commission and omission is a real topic."

It is, but it's a pretty fuzzy line.  When the House of Lords decided in the Tony Bland case in 1993 that actively disconnecting life support could be treated as an omission - though only if doctors did it, and in certain circumstances - I think many of realised that it wasn't going to be the clear bright line that some people hoped.  

"In euthanasia, the "doctor" intends that the patient die.  The doctor who does not intervene does not intend either death or harm.  They allow the harm to continue, but they do not intend it."

They might or they might not intend it. Bringing about death by wilful neglect is certainly something that the law can recognise as homicide, and that could certainly apply in medical contexts too. Some of those neglectful deaths might be intentional - the Law Lords recognised in Bland that bringing about his death would be the intention behind withdrawing ANH (the withdrawal was deemed lawful because it wasn't a breach of the doctors' duties, not that it wasn't intentional). But in any event, while intent is one thing that can render a death culpable, it isn't always necessary. There are other mental states that we consider both morally and legally blameworthy.

"Once euthanasia is institutionalised, they'll feel themselves surrounded by the issue:  it will be an elephant in their room.  Pressure or not, the question will be hanging in the air."

Some might, and it would be disingenuous to deny that some may find that stressful. Otoh, as Andrew pointed out, the same issue more or less arises with regard to treatment refusals, living wills, DNRs and all the rest of it. Without wanting to sound harsh, it's part of the price for medical autonomy. Competent adults sometimes have to confront hard questions. The only alternative, I fear, is that someone else confronts those questions for them, and I think that, as a society, we've been moving away from that model.

 

by Andrew Geddis on June 25, 2019
Andrew Geddis

@ Gavan,

Consider this, from a palliative care specialist's op-ed arguing against aid in dying:

"I was asked to see a lady in her 80s with heart failure who lived in a rest home. She was asking her doctor to stop all her heart medication. The woman had discussed it with her daughter who was present and I could see she understood the decision may shorten her life, allowing nature to take its course. I agreed to her request and she thanked me profusely."

We can put aside the doctor's apparent misunderstanding of her role (she doesn't get to "agree to a request" here - all she can do is assess competence and then accept the patient's decision). Focus instead on the relatively insousciant attitude on display. Here's an elderly woman saying she wants to hasten her own death. Her family member is right there while she tells her doctor what she wants. Yet, the doctor feels quite comfortable that the woman knows her own mind, that there is no familial pressure, that the decision is from a competent person. And so her wishes are treated as the end of the matter.

Now, ask yourself how opponents of aid in dying would paint this situation if the woman was asking for aid in dying. How can we know she's understood the consequences?! How can we trust her decision while her daughter is there?! How can a doctor know if she is competent - she's 80! In a rest home!! She's probably depressed!!! And so on, and so on.

So, once again, here's the problem. Decisions on whether, when and how to end life are omnipresent right now. Nevertheless, doctors feel quite able to deal with them. So forgive me if I take with a grain of salt claims that introducing aid in dying really introduces new problems that cannot be managed.

by Gavan O'Farrell on June 26, 2019
Gavan O'Farrell

@Andrew, some of these condundrums are so unpleasant that I feel like blaming someone or something for their existence:  I'm considering blaming the modern insistence on total transparency. Maybe we needn't live under the blazing sun all the time.  :-) , if you will excuse the low-tech emoji.

I can see that the withdrawal of treatment scenario has a different element - the obligation not to impose continued treatment on the patient against her will.  Hence, as you point out, compliance with the patient's wishes rather than acceding to a request.  Perhaps the strong wish/obligation not to impose has led to some leniency in ascertaining the patient's will, despite the high stakes and despite the need to ascertain her will reliably.

My reaction to that scenario is not to use it to extrapolate towards justification of euthanasia, but to raise the bar on ascertaining the will of a patient who wants treatment withdrawn.  Two doctors etc.  Labour-intensive, but then the stakes may warrant the effort.

I realise a euthanasia advocate would still extrapolate, having established parity on the issue of ascertaining the patient's will.  Have I finally understood the point of your argument?

I see the difficulty in ascertaining the patient's will as one argument against euthanasia.  Not the best argument, perhaps, since we all know that suicide can be perfectly sane in all sorts of situations.  

And, as this is the issue addressed by your article,  I suppose we are not here to discuss the other arguments.

by william blake on June 26, 2019
william blake

The biggest difference between euthanasia and self denial of food or life prolonging medice is time. The plus for the slow way is the near certainty of intent by the person wanting to die, the minus is that it takes a longer time and is cruel to all involved. The immediate type of euthanasia is perhaps more open to abuse but merciful if applied correctly.

by Andrew Geddis on June 26, 2019
Andrew Geddis

@William,

Under the End of Life Choice Bill, a person wishing to receive aid in dying must:

(1) Request it of a doctor, and then be informed by that doctor of a range of matters relating to their condition and options; and,

(2) After receiving that information, repeat the request; and,

(3) Wait while their situation is assessed by a second (and, if necessary, a third) doctor; and,

(4) If they are assessed as eligible for aid in dying, be told of that fact and once again request it; and,

(5) Wait for at least 48 hours before being able to access the medicine needed for aid in dying ... at which point they must once again positively request that it be administered to them.

So, it is not exactly an "immediate" process!

by Gavan O'Farrell on June 27, 2019
Gavan O'Farrell

@Colin.  Sorry for the delay in replying.

I can see how neglectful death can be a homicide if there is no consent to, say, the withdrawal of treatment.  When I compare euthanasia to the withdrawal of treatment, I assume consent in each case.

Then, I still think there is a significant difference in intent on the doctor's part.  In the withdrawal scenario, it would be very difficult to prove any harmful intent:  indeed, the doctor (and everyone else!) may hope the patient lives unaided.  In the euthanasia scenario, death is intended. 

Intending someone's death, and then bringing about that death, needs a helluva lot of justifying and I don't personally think consent carries justification.  (The lack of consent might guarantee culpability, but it doesn't follow that the presence of consent guarantees innocence.)  I'm not at all sure it's okay to do to a person anything they consent to, even kill them.  Sure, it's honouring their autonomy, but I don't think that's the only issue.

by william blake on July 05, 2019
william blake

So, it is not exactly an "immediate" process!

Ive just read that in Victoria there is a mandatory, minimum of ten days before medical intervention can occur, once the decision has been accepted, this is getting close to the ammount of time that refusing medicine or food would be needed to end your own life. 

 

Post new comment

You must be logged in to post a comment.