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The writer is professor of law at the London School of Economics
With Jersey and the Isle of Man preparing to legalise assisted dying, and a bill due to come before the Scottish parliament, it is hardly surprising that the House of Commons Health and Social Care Committee recently concluded that the UK government should consider how to respond to a divergence in the law within the UK and its crown dependencies.
When the House of Commons last voted on an assisted dying bill in 2015, there was a significant majority against.
But towards the end of last year, Kit Malthouse MP, who co-chairs the all-party parliamentary group for choice at the end of life, said that “sentiment in parliament has moved significantly” since 2015, and is now “getting towards a majority”. A future vote would also be able to take account of the findings of a Citizens’ Jury on assisted dying, due to be published this summer by the Nuffield Council on Bioethics.
Those in favour of legalisation do not want to make assisted dying compulsory. Rather, they think it should be available as a choice, for patients whose suffering has become unbearable.
In contrast, opponents of assisted dying do not just want to rule it out for themselves, but for everyone else as well. They may believe assisted dying is morally wrong, perhaps for religious reasons. The more common argument, however, is that legalisation would be dangerous, that vulnerable people would be pressured into assisted deaths and that the only safe solution is a blanket ban.
We do not do this in other contexts. We do not prohibit adult patients with capacity from refusing blood transfusions because we are worried about vulnerable patients. Instead, we have a system in place through which a patient’s capacity can be assessed, and if there are concerns about coercion, an application can be made to the courts.
The idea that assisted dying could never be safely legalised sits uneasily with the growing number of countries that have taken a different view, including the Netherlands, Belgium, Spain, Portugal, Austria, Switzerland, Luxembourg, Canada, all six Australian states, New Zealand, Colombia and 10 US states. This growing body of evidence also gives us the opportunity to evaluate the strengths and weaknesses of different models for assisted dying.
Some permit assisted dying only for the terminally ill, while others also allow access in cases of unbearable and unrelievable suffering. Limiting access to patients who will die soon may make judging eligibility more straightforward, but it would fail to help people, like Tony Nicklinson and Debbie Purdy, whose powerful testimonies of their suffering lay behind two landmark court judgments in the UK.
It may be sensible to confine access to adults with capacity, but this may mean that someone who is worried that they might lose capacity might access an assisted death while they still can, in the same way as UK patients who go to Dignitas in Switzerland while they are well enough to travel.
In the 10 US states, only assisted suicide is lawful, which might look like a safeguard, but poses problems for patients who are unable to swallow. Other jurisdictions allow doctors to take the final step, either as a last resort, or in preference to self-administration.
Rigorous approval mechanisms, including waiting periods, second opinions and assessments of the patient’s psychiatric and palliative care needs can ensure that the decision being made is according to the wishes of the patient. But the more time-consuming the approval process, the greater the burden on dying patients. The previous UK bill would have required a high court judge’s consent for each individual case — court delays could make this practically infeasible.
It is sometimes argued that universal access to quality palliative care would be a better solution to suffering than assisted dying, but evidence from countries where it is lawful suggests that this is not an either/or choice. The vast majority of people who seek assisted deaths are receiving palliative care. The select committee even found that assisted dying “has been linked with an improvement in palliative care in several jurisdictions”.
In the UK, we should not wait for a change in the law on assisted dying to better fund palliative care. Care of the dying should be core NHS business, rather than being outsourced to charities.
High quality palliative care can ensure a good death for some, but not for everyone. We owe it to those whose suffering cannot be relieved in any other way, and for the much wider group of people who would be comforted by having the option if their suffering were to become intolerable, to at least try to devise an effective assisted dying law.
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