Campaigners to legalise assisted suicide invoke the principle of arbitrary autonomy. This threatens to give us a radically libertarian society at the expense of a humane one
“There should be a booth on every corner where you could get a martini and a medal.” No doubt Martin Amis was exaggerating for stylish effect, but he wasn’t joking. After watching Alzheimer’s disease reduce Iris Murdoch to spending her days gazing at the Teletubbies and after witnessing his stepfather dying “very horribly”, Amis’s support for legalising assisted suicide has stiffened. “There should be a way out for rational people who’ve decided they’re in the negative,” he told the Sunday Times. “That should be available, and it should be quite easy.”
Pressed by the relentless stream of cases of “rational” suicide and mercy killing recently publicised by a story-hungry, analysis-shy British media, even long-time defenders of the legal status quo can be forgiven for weakening and wondering if Amis isn’t right after all.
The truth is that some of us face dreadful ways of dying. Sufferers from motor neurone disease, for example, might have to look upon the prospect of suffocating to death. Others with obstructive tumours might have to contemplate spending their last days vomiting their own faeces.
But it is not just the dying who have reason to fear. Some of the living are burdened with lives that are severely restricted. Among recent clients of Dignitas (the Swiss clinic for assisted suicide) was a chronically disabled Irishman who could not swallow, whose only means of feeding was a tube inserted into his stomach and whose capacity to communicate was very limited. Another was Daniel James, the young victim of a rugby accident who refused to reconcile himself to life as a tetraplegic. And then there was Sir Edward Downes, the octogenarian conductor who had no appetite for soldiering on alone after the death of his wife.
Under conditions as difficult and miserable as these, how can human life be worth persevering in? Why on earth should we endure it to the bitter end? What could possibly be the point? Yes, palliative care can relieve the distress of most of the terminally ill, but there are always some cases beyond its reach. And it cannot relieve the frustration of the chronically disabled or the despair of the bereaved.
Surely, therefore, compassion obliges the law to let us seek an efficient escape from unbearable suffering, whether through help in killing ourselves (physician-assisted suicide) or through someone else killing us upon our request (voluntary euthanasia). And besides, don’t we have a right to autonomy? After all, an individual’s life is his own property, for him to use as he sees fit. He is the sole arbiter of its worth, and he alone is competent to decide when it has become intolerable.
As for opposition to changing the law, that’s mainly based on a dogmatic obsession with the absolute “sanctity of life”, which makes sense only to the dwindling minority of religious believers. To shore up their case, opponents manufacture the fear that legalising assisted suicide or voluntary euthanasia will send us down a slippery slope to murder, but hard empirical evidence from Oregon and the Netherlands now shows this to be irrational.
In a nutshell, we have a real problem to which there is a rational solution: give mentally competent individuals the legal right to decide that their lives should end, give medical experts the legal right to assist in ending them painlessly and then put in place strict procedural safeguards against abuse.
So, at least, runs the liberalising story. The problem it identifies is real enough, but its solution is not so deeply rational. Closer inspection reveals several flies stuck deep in its ointment. One of the largest is the problem of eligibility. As things stand, the law in England, Wales and Scotland — as in most jurisdictions — prohibits the intentional killing of one person by another, except in proportionate self-defence. Since 1961, it has ceased to regard suicide as a crime, not because it doesn’t care whether or not citizens kill themselves, but because it recognises that punishment is not an appropriate response to failed attempts at doing so. Nevertheless, the law has continued to criminalise assistance in suicide, partly to discourage suicide itself and partly to deter malicious help.
If we were to decide to breach the law’s current absolute prohibition of intentional killing in order to allow some to assist others to kill themselves, we would then have to decide who should qualify for assistance. We might all agree that dying patients whose suffering is unbearable and beyond adequate relief should be eligible. Beyond that, however, plenty of room would remain for disagreement about when suffering is unbearable and when relief is inadequate. And it wouldn’t be very long before someone reminds us that unbearable and irremediable suffering is not confined to the dying. What about the chronically ill and disabled? And then someone else would point out that one doesn’t even have to be physically ill or hindered to experience life as an intolerable burden. What about the chronically and severely depressed, the bereaved or the philosophically gloomy? Don’t these too deserve the right to die, come the day when they “decide they’re in the negative” and conclude that soldiering on simply isn’t worth the candle?
Once we have decided on a set of conditions under which people have the right to assistance in suicide, attention will shift to cases that meet those conditions but where the individuals concerned are incapable of killing themselves. Then we will confront the cruel inconsistency of our granting the benefit of a merciful release to the stronger, while withholding it from the weaker. The logic that brought us to assisted suicide will push us towards voluntary euthanasia.
Once we decide to breach the absolute prohibition of intentional killing, we might agree upon the need to limit the conditions under which assistance in suicide and euthanasia are permissible, but we will find that there are no very compelling reasons to draw the line in one place rather than another. Given the intrinsic difficulty of deciding where to draw the line, given the propensity of the media to focus on graphic personal stories rather than the larger social context and given the popularity of the libertarian rhetoric of arbitrary autonomy, there is good reason to fear that any liberalisation of the law will tend towards granting death on demand.
If this should seem fanciful and alarmist, then consider the Netherlands, which has had over a quarter of a century’s worth of experience of trying to design a suitably stringent legal framework for regulating assisted suicide and voluntary euthanasia. Since 1984, Dutch law has in effect permitted doctors to assist patients to die or to be killed upon request under certain conditions. These conditions do not stipulate terminal illness. They do not clearly stipulate physical illness. They only require that the candidate’s suffering be unbearable and without hope of improvement. Accordingly, in the Chabot case of 1994 the Dutch Supreme Court ruled that a 50-year-old woman who was physically healthy but in persistent grief over the death of her two sons, was subject to “unbearable suffering” and legally eligible for assisted suicide. Six years later in the Sutorius case, a trial court in Haarlem judged it legal to give assistance in suicide to an elderly patient who felt his life to be “empty and pointless”.
Now it is true that an Amsterdam appeal court later overruled the trial court’s judgment, arguing that doctors have no competence to judge “existential” suffering resulting from loneliness, emptiness and fear of further decline. It is also true that the Supreme Court denied Dr Sutorius’s subsequent appeal to have his conviction quashed, holding that a patient must have “a classifiable physical or mental condition” to be eligible for medical killing.
These judgments have settled nothing, however, and the debate rumbles on. In 2004, the Royal Dutch Medical Association published the Dijkhuis report, which argued that someone who is no longer able to bear living any longer and had a hopeless outlook on their future could be said to be “suffering from life” and should therefore be eligible for assisted suicide or voluntary euthanasia. This view has not yet won the support of a majority of the association’s members, but it is being championed by the Dutch Right to Die Society, which is often taken by public bodies to be the representative of patients’ interests. If the society gets what it wants, then the Netherlands would be well on its way to enshrining in law the principle of arbitrary autonomy. “Suffering from life” is not a medical condition and there are no medical grounds on which doctors would have the authority to contradict an individual’s claim that he feels such suffering to be unbearable and hopeless.
Britain is not the Netherlands, of course. We could adopt stricter arrangements here. We could permit only assisted suicide and not voluntary euthanasia and we could limit eligibility to the terminally ill-as they do in Oregon. Indeed, that is exactly what Dignity in Dying is currently campaigning for. However, there are two reasons to think that if we start with the Oregon model, we won’t stop there. The first is cultural. Oregonians, being American, are typically allergic to the state and analogous institutions and zealously protective of individual liberty. So whereas they are willing to grant individuals medical assistance in killing themselves, they refuse doctors the authority to kill their patients under any conditions. Britons, however, are not American. They have a more benign, European view of the state, of state-run healthcare and of those who provide it — just like the Dutch.
The second ground for doubting that thiswould rest with the Oregon model is logical. The reasons for restricting the right to die to those terminally ill who are capable of suicide are not at all strong. Indeed, one of the liberalising campaign’s leading lights, Lord Joffe, has stated in public on several occasions that the rationale for the proposed restrictions in his Bill is simply political: currently, a more cautious Bill has a greater chance of winning sufficient support to become law than a less cautious one. He fully hopes and expects that sooner rather than later the restrictions would be lifted. That he would not long be disappointed is suggested by the fact that, of the recent cases that have been seized upon by much of the British press to promote a change in the law, several already fall outside the tactically cautious arrangements proposed by Dignity in Dying. Neither Daniel James nor Sir Edward Downes was terminally ill. Nor were they suffering unbearable physical pain. They were simply “tired of life”.
But why shouldn’t we go the whole libertarian hog and grant all rational adults the right to die or be killed on demand, as the director of Dignitas, Dr Ludwig Minelli, enthusiastically recommends? As long as the decision for assisted suicide or euthanasia is made freely by the individual concerned, what reasonable objection could there be?
One objection emerges when we roll libertarian logic out to its logical conclusion. If we were to reform the law so as to allow competent adults absolute, arbitrary autonomy over their own lives, then it would have to permit consensual vivisection and killing. In other words, should an individual consent to being mutilated and killed-say for sexual gratification-then the law would have no objection. In its eyes, the individual would be master of his own life and if he should choose to spend it in what other people consider to be a macabre fashion, then that would be his business and his alone.
In case this sounds just too bizarre to be worth considering, we should remember that in 2004 Armin Meiwes was tried in Germany for mutilating, killing and eating a 43-year-old computer engineer, who consented because, according to the judge, “he wanted to get the kick of his life”, reported the Guardian, on 31 January 2004. The fact that Meiwes was convicted of manslaughter, and not just acquitted, is witness to the commitment of German law — as of all traditional Western law — to some concept of the objective worth of human life that is independent of the subjective preferences of individuals. In spite of his consent, the computer engineer’s life had a worth that both he and his killer had violated: that is why Meiwes was punished. It follows from this that if English and Scottish law wishes to maintain a commitment to upholding the objective worth of human life, then it can’t grant to individuals absolute, arbitrary autonomy over their lives.
I could let this part of the argument rest there. I could presume that every reader agrees that it would not be desirable for Britain to become a society where consensual cannibalism is regarded as a permissible lifestyle and that therefore the principle of arbitrary autonomy is not one that English and Scottish law should incorporate. But let me push the argument one stage further and try to explain my position. First, I appeal to the common sense notion that someone can choose to squander or waste his own life. Such a notion certainly makes sense in terms of my own experience. From what others say and write, it would appear to make sense in terms of theirs, too. But if it does make sense, then that is only because we recognise that our life might actually have an objective worth that we sometimes choose to ignore — that it has an objective worth that can stand over and against us in judgment upon our own free choices. It makes sense only insofar as our autonomy is not arbitrary, but is responsible to a given moral context.
Further, if we were to regard the individual as the sole arbiter of the worth of his or her life, then how could he/she continue to oblige the care and commitment of other people? If the worth of your life is entirely contingent upon your judgment and if I view your judgment as wrong-headed, why should I expend my time and energy in supporting your life? Suppose that you value your life rather more than I value it. Why should I prefer your judgment to my own? Perhaps indifference or self-interest would move me to “respect” your judgment in the thin, negative sense of not interfering with it. But such arm’s-length respect falls a long way short of positive care. One problem with dissolving human worth into individual freedom, instead of making individual freedom serve objective human worth, is that it becomes very hard to see why that worth should command our neighbour’s love. Another problem is that when arbitrary autonomy severs itself from responsibility, it haemorrhages its own value.
A third reason why the law should not incorporate the principle of absolute, arbitrary individual autonomy is because the private and the public realms are not in fact sealed off from each other. What we do and how we form ourselves in our so-called “private” relations does inform how we behave toward others in “public”. If society tells its members, through the law, that a life spent in drug addiction or lethal masochism or ended early in suicide is quite as acceptable as any other — so long as it is freely chosen — then those who choose such lives will become prey to passions that will drive them to abuse and violate their neighbours. The drug addict’s passion for a “high”, the suicide’s passion to escape and the sado-cannibal’s erotic passion to penetrate and consume render them incapable of respect for the legitimate claims of other people. The drug addict will assault and rob to get money for his next fix, the suicide will end his own life no matter how many other lives he ruins as a result and the Armin Meiweses of this world will not be as solicitous of their victims’ consent the second time around.
The notion that we are all rational choosers is a flattering lie told us by people who want to sell us something. They want a free hand in making a profit out of our fears and desires. The less flattering truth is that much of the time we are driven by social and psychic forces that we barely understand — and even less control — and that hinder us from paying attention to other people. We creatures of passion need the support of legal and social constraints to become the kind of people who are capable of looking beyond their own felt needs to heed the claims of their neighbours. The problem with the libertarian principle of arbitrary autonomy is that it would rob us of this support.
The champions of lawful assisted suicide tend to have sunny dispositions. They assume that all is basically well with society. They assume that the legislation they propose will operate in a fundamentally humane social context, where patients can usually rely on the generous support both of health care services and relatives. They assume that procedural safeguards are all that is needed to guarantee genuine patient autonomy. And they assume that one can tell an authentic, free choice by its persistence.
But this is largely well-heeled fantasy. According to Help the Aged, about half a million older people are being abused in Britain at any one time, two-thirds of them at home by someone in a position of trust. More than half the theft and fraud against older people is committed by their own children. The scale of the problem has been confirmed by Britain’s most senior police-woman, the former Chief Constable of South Wales Police, Barbara Wilding, who has reported “an increase in abuse of the elderly, which often takes place behind the closed doors of the family home”. She said that this would become “the next social explosion”.
As for the quality of professional care, Baroness Neuberger wrote in Not Dead Yet: A Manifesto for Old Age (Harper, 2008) that those “care-assistants” who delivered most of the hands-on care of the sick and elderly are poorly trained and poorly paid-“short-term employees doing dirty work for little money and no emotional and ‘respect’ reward”. This “miserable reduction of care workers into harried, time-watching automatons — with no time for human interaction — is corroding the quality of care all the time”.
This is the actual social environment in which the legal right to assistance in suicide would often operate: one where the elderly and the chronically ill are often neglected, malnourished, isolated and even resented. This is the inhumane social context that would inform the autonomy of ailing individuals and move them to persist in an authentic choice to stop wasting space and die. Formally speaking, of course, such choices would be entirely free; but theirs would be a freedom evacuated of hope by a characteristically impatient, often callous, and sometimes hostile society.
The proponents of the right to assistance in suicide are naive to suppose that the humanity of British society can be taken for granted. They are also naive to infer that the granting of a legal right to die would legislate patient suffering away. It won’t. Mistakes will be made, and even assisted suicides will be botched. After all, we’re talking about the world of human activity, where perfect solutions are not known to dwell.
In sum, the flies that stain the rational ointment of a mooted right to assisted suicide are as follows. Very likely it would be just a temporary Oregonian stopping-place on the road to Dutch-style voluntary euthanasia. It would open up intractable arguments about the conditions of eligibility, which would invite the libertarian solution of granting arbitrary individual autonomy and killing on demand. This would serve to undermine positive care for the lives of others, lift legal and social prohibitions that protect individuals from self- and socially-destructive passions and jeopardise such a humane social ethos as we now have. This ethos is neither as extensive, nor as deep, nor as secure as the sunny liberalisers suppose. Nor would their preferred solution to the problem of patient suffering be as perfect as they imply. For sure, the concern to maintain society’s commitment to supporting human worth in adversity, which underlies this argument’s opposition to changing the law, is one that many religious people will share. But it is also one that fuels majority opposition in non-religious bodies such as the House of Lords, the Royal College of Physicians, the Royal College of General Practitioners and the British Geriatrics Society. Opposition to making assisted suicide lawful really can’t be brushed disingenuously aside as the manipulative child of religious conspiracy.
All right, so legalising assisted suicide is seriously problematic, but so is the plight of those who now live and die in distress. If we refuse them the right to assistance in killing themselves or to be killed upon request, what alternative solutions are available? Insofar as the problem is the fear of being kept alive in intolerable circumstances, current law does not oblige patients to strive to stay alive at all costs and it already grants them a right to refuse treatment that doctors must respect. This should not be read as sanctioning suicide. It merely recognises that some may reasonably prefer to conserve their limited energies for the process of dying rather than expend them in straining to stay alive.
It is true that some doctors are overzealous in striving to “save” their patients, which implies a need to reform medical education. Doctors need to be educated to see their proper role as including helping patients to die well, and not simply as fending off death. Certainly, that should involve their being made far more aware of the considerable resources of palliative medicine and care. But it also requires more than technical training.
It requires a spiritual formation in which doctors are made into the kind of people who, when faced with death in the eyes of the dying, have the moral strength to resist the natural instinct of mortal human beings, and not to turn away.
The provision of palliative care in Britain is still very patchy. The availability of in-patient palliative care beds, for example, varies dramatically from region to region-and not because of varying levels of demand. If we really care to improve the conditions under which most people die, then there remains plenty of scope for investing more energy and money in building more hospices, multiplying specialist palliative care teams, and integrating palliative expertise more thoroughly and universally into the healthcare system.
But what about that small minority of patients whose suffering cannot be managed by normal palliative means? In those rare cases recourse can be had to palliative sedation, which renders patients unconscious. Sometimes doctors fight shy of this, because they fear killing the patient. Given the contemporary sophistication of drug-management, this fear is very largely misplaced. Nevertheless, were sedation to hasten a patient’s death, it would raise no moral or legal objection so long as it had been proportioned to the relief of distress.
Together these measures would go a long way towards reducing patients’ suffering. But they comprise no perfect solution. They offer no answer to the frustration of a Daniel James or the prospective loneliness of an Edward Downes. Nor do they offer an end to the sufferings of the grievously bereaved, the chronically depressed, the long-term unemployed or the wretchedly poor. Nor do they offer relief to those sentenced to spend the rest of their lives behind prison walls — at least one of whom, according to his personal correspondence, would jump at the chance of assisted suicide, were it on offer. Compassion obliges us to do what we can and what we may to relieve human suffering. But there are some things that we could do, which we shouldn’t — because they create more problems than they solve or because they jeopardise more people than they relieve. Prudence obliges us no less than pity.
If the law remains as it is, of course, criminal sanctions would continue to threaten those who help others kill themselves. Since assistance in suicide can be malicious or culpably negligent, it is right that the law should continue to seek to deter it. In difficult, grey cases, however, where neither malice nor negligence is evident, the Director of Public Prosecutions has the liberty to decide that prosecution would not be in the public interest. This liberty he has in fact exercised on many recent occasions, with the result that Daniel James’s parents and their like have suffered no penalty. The current arrangement is not perfect: well-intentioned helpers in suicide are presumably subject to a measure of anxiety until the DPP reaches his verdict. But precedent should reassure them: none of those accompanying the more than 100 British citizens who have killed themselves with Dignitas’s assistance has been prosecuted. And the forthcoming publication of the DPP’s criteria should reassure them further. In the end, the law has consistently and wisely refrained from bringing its threats to bear in such fraught cases and it will continue to do so.
The human suffering that assisted suicide proposes to solve needs to be taken seriously. But the relaxation of the law prohibiting intentional killing would give us a radically libertarian society at the cost of a socially humane one. And besides, there is another way — no more perfect, but a lot more prudent.