The Report of the House of Lords' Select Committee on the Assisted Dying for the Terminally Ill Bill
This Report, more commonly known as the Report of the ADTI Bill or the Joffe Bill, was published on 4 April 2005. All 148 pages of it are available at a cost of £17.50, or free at http://www.publications.parliament.uk/pa/ld/ldasdy.htm The Evidence of the Committee has been published in a separate second volume of 737 pages, which can be purchased for £48, but that is another matter.
Now, I must admit that I have not read every word of this Report – rather I have scrolled through it, though I have studied carefully the thirteen pages of Chapter 7: Conclusions.
In total, the Committee listened to direct evidence from more than 140 people, mainly from the UK, but also from the Netherlands, Oregon USA and Switzerland. It also considered over 60 formal written submissions (including mine, on behalf of Affinity, click here to view it) and over 14,000 letters and e-mails.
The 1994 Report
The last time that euthanasia was a serious subject at Westminster was when the House of Lords’ Select Committee on Medical Ethics examined it and published its Report in February 1994.
That 1994 Report strongly opposed any change in the law that would permit euthanasia. It properly endorsed (p. 48), ‘… the right of the competent patient to refuse consent to any medical treatment …’, but it also emphasized that, ‘The right to refuse medical treatment is far removed from the right to request assistance in dying.’ After hearing the oral and written submissions from numerous pro- and anti-euthanasia individuals and organizations, and after considering all of the pro-euthanasia arguments, the 1994 Committee decided (p. 48) that, ‘… we do not believe that these arguments are sufficient reason to weaken society’s prohibition of intentional killing. That prohibition is the cornerstone of law and of social relationships. It protects each one of us impartially, embodying the belief that all are equal … We believe that the issue of euthanasia is one in which the interest of the individual cannot be separated from the interest of society as a whole.’
Furthermore, the 1994 Committee concluded (p. 49) that, ‘It would be next to impossible to ensure that all acts of euthanasia were truly voluntary, and that any liberalisation of the law was not abused.’
Yet even that 1994 Report was not without its flaws. Chief among these was its definition of euthanasia (p. 10) as, ‘… a deliberate intervention undertaken with the express intention of ending a life to relieve intractable suffering.’ This is a most inadequate definition, because, while it encompasses positive acts, namely, euthanasia by commission, which kill the patient, it excludes negative acts, namely, euthanasia by omission, which kill the patient. This failure of their Lordships to recognize the existence of euthanasia by omission was especially poignant in the wake of the 1993 Law Lords' judgement in the Anthony Bland case, an event that occurred exactly twelve months prior to the publication of this 1994 Report. After all, it was a deliberate omission, specifically, the withdrawal of nutrition and hydration, which was sanctioned by the Law Lords, that killed Anthony Bland.
Nevertheless, this 1994 Committee took a pretty beefy stand against euthanasia, and its members were unanimous in condemning the practice. Their conclusion can be summed up in four words: Euthanasia? No thank you!
The Bioethical Climate
Since the 1994 Report
By contrast, the 2005 Report is much less resolute, much more equivocal. Indeed, it makes for dismal reading, primarily because nothing of substance is supported, or condemned, or concluded. The 2005 Committee merely questioned the adequacy of the safeguards of the Bill rather than dismissing its underlying concepts, as the 1994 Committee would have done.
Of course, this new stance is immensely disappointing (and dangerous), but it has come as no surprise, and that is for several reasons.
1] The Committee members were split before they even started their deliberations – the unanimity of the 1994 Committee had disappeared. There were some, such as Lord Joffe and the Right Honourable the Baroness Jay of Paddington, who are rabid euthanasia enthusiasts – indeed, the former is a prominent member of the Voluntary Euthanasia Society (VES). On the other hand, there were members like Professor the Lord McColl of Dulwich, the grandfather of Hippocratic-Christian medicine in the UK, and Baroness Finlay of Llandaff, the princess of palliative care (Dame Cicely Saunders being the queen). The numbers appeared to be stacked up like this: five against, four in favour, and four unknowns. The unknowns included the Earl of Arran and Lord Patel of Blackburn.
2] Public opinion has shifted during the last ten years. We are all now more aware of, though not necessarily more knowledgeable about, the issues surrounding euthanasia. For example, the Dutch have now been doing it semi-publicly for many years and legally since 2001. Switzerland and Belgium have recently followed suit. In March 1995, the documentary, Death on Request was broadcast on British TV, showing a Dutch doctor euthanizing one of his patients. More recently, high-profile cases, like those of Diane Pretty and Miss B, have caused the predicted knee jerk reaction – ‘we treat dying dogs better than these people’. Palliative care has been sidelined as uninteresting while pain has been highlighted as the central issue.
3] The VES has mounted a strenuous, albeit tendentious, campaign. The Joffe Bill has been its Bill. And its website, e-mail and media strategies have succeeded in worrying, rather than educating, the public. Us bioethical ‘old-timers’ have seen it all before – the Abortion Law Reform Association (ALRA) used similar tactics in the 1960s. A few hard cases, some illegal assisted suicides, a couple of notorious, and, of course, a little scaremongering goes a long, long way to furthering the cause. This determined, vocal, well-organized, well-heeled minority has run a shrewdly stage-managed publicity machine.
4] And what have we done? Thankfully, not just twiddled our thumbs. There have been some decent submissions, speeches, interviews, and so on from those opposed to euthanasia. T he grand ethical principles of Hippocratic- Christian medicine have been rehearsed. And remember, they are magnificent. They trump the puny situation ethics of the pro-euthanasia camp any day. But we have again been lumbered with that old media problem: how do you make non-news newsworthy? How can you present that first-class, ongoing, unsung work of palliative care as something remarkable and out of the ordinary? Meanwhile, the groans of Diane Pretty (who, incidentally, but very importantly, refused any palliative care) made for ‘good’ TV. And those grunts created a certain uneducated trepidation among viewers. Over the last year or so, I have not seen the calm and tender work of any hospice on TV – have you?
So for at least these four reasons, it was feared that the 2005 Report would be a weak and a retrograde Report – and so it has proved to be.
Some Observations on
the 2005 Report
The Joffe Bill proposed the legalisation of euthanasia for people with a terminal illness who were mentally competent, but who were undergoing ‘unbearable’ suffering.
1] There was never much fear that this particular Joffe Bill would become law – the early dissolution of Parliament and the general election saw off that possibility. However, what this Bill has done is to ‘soften up’ Parliament for future discussions. The first major recommendation of the Report is that it should be debated ‘early in the next Parliamentary session.’
2] The Joffe Bill sought, ‘to legalise not only medical assistance with suicide but also voluntary euthanasia.’ The second major recommendation of the Report is that if a similar Bill is introduced into a future Parliament, then a clear distinction should be drawn between assisted suicide and voluntary euthanasia. This is bioethics at its most mischievous.
Let us be clear about some definitions. Voluntary euthanasia is killing with the patient’s request. The actual deed is typically performed by a relative, friend or doctor because the patient is physically incapable of killing herself. [If the patient takes her own life, then that is simple suicide.] Medically-assisted suicide is a sub-category of voluntary euthanasia, whereby a doctor assists by supplying the means, such as the lethal drugs, for the patient to take her own life.
The critical feature of these two categories is that ethically there is no distinction between them. The distinction is methodological. If the intention of the patient, and all others involved, is to kill the patient, then the method and the means become minor, even negligible.
Intention, in every form of euthanasia, is paramount. Intention is major, the means is minor. In my 2002 book, The Edge of Life – Dying, Death and Euthanasia, I wrote (page 81), ‘For instance, think about this situation. A doctor might inject a barrelful of life-ending drugs into a patient’s veins, but would probably never dream of cutting his throat. But why not? Why do people support one action, but abhor the other? What is the difference between the two? The difference is practical, not ethical. After all, a dead patient is a dead patient, regardless of the means used.’
Lord Joffe and his supporters know the score – they are not stupid. They know that they will not yet convince parliamentarians, or the general public, to support a bill permitting wholesale voluntary euthanasia. But they think that a bill to decriminalise assisted suicide might win the day. After all, can you doubt that having doctors involved will ensure that the act is performed both professionally, properly and with propriety? But, and this is the danger of legalising any form of euthanasia, assisted suicide will be the Trojan horse. It will inevitably lead to voluntary euthanasia, which will inevitably lead to non-voluntary (killing without an explicit request), which will inevitably lead to involuntary (killing against the patient’s wishes). Human nature and human history guarantee it. Oh yes, such a slippery slope will come about (despite all the howls from the pro-euthanasia camp) and I shall eat my hat if it does not (and my hat is a particularly indigestible polyester one).
Once medically-assisted suicide is approved, who or what will stop the legalisation of straightforward, widespread voluntary euthanasia? After all, what sort of brute cannot sympathise with the poor old lady, so crippled that she cannot even pop the lethal dose of pills into her own mouth? Bring on the full-time euthanasiasts.
3] A third recommendation of the Report is semantic. Originally, the Bill defined ‘unbearable suffering’ as a criterion for euthanasia. The Report favours ‘unrelievable’ or ‘intractable suffering or distress’. These terms may have some basis for serious debate in palliative care and euthanasia circles, but here they smack of tinkering at the edges.
Moreover, highlighting them has had the effect of providing a proof-read, revised text for the next Joffe-type Bill. Indeed, this ploy has already been used. Lord Joffe’s first attempt to float a euthanasia bill, the Patient (Assisted Dying) Bill, was in 2003 – it got severely criticised, and it got nowhere. But he and his supporters used that exercise to draw up this current Bill.
And it is beyond cavil that they will do the same again when they propose a revised 2006 Bill before Parliament. Already Lord Joffe has proposed to withdraw offending sections and clauses. This continual revision does not indicate principled democracy at work, but rather a shallow seeking of the lowest common denominator – what the public will tolerate. Perhaps it is unavoidable, but I would baulk at doing the thinking and the rewriting for the enemy.
4] Another semantic issue is raised. Because some people who request euthanasia will be suffering from a psychological or psychiatric disorder, the Report calls for a definition of ‘mental competence’. This sounds just like the can of worms that the 1967 Abortion Bill opened up when it identified one of the grounds for termination as ‘a substantial risk of the child being born seriously handicapped.’ We have been trying to establish precisely what that phrase means for the past thirty-eight years! Of course, it means what you want it to.
5] One of the most unnerving aspects of the Joffe Bill is the very bluntness of its aim. Consider just one of its proposals. It is found on p. 8 and line 14. It reads, ‘I request that my attending physician assist me to die.’ That alone should make us shudder. But instead of responding with a firm ‘No’, the Report focuses on the ‘waiting period’, the time between asking for euthanasia and receiving it. The Report becomes entangled in the mechanics of the process, of satisfying the so-called safeguards, the interviews, the decisions, the paperwork, and so on. It is all so unnatural. It is all so unlike proper medicine. It is all so unlike dying well.
6] One of the few satisfactory recommendations is that a conscience clause should be included in any such Bill to protect medical practitioners and other healthcare workers who are opposed to implementing any new euthanasia law. Quite what the practical protection and outcome might be is less clear. Would it be, ‘You must refer all patients to a pro-euthanasia colleague’ or ‘We’re sorry, we were looking for someone prepared to join our euthanasia team’? Ask the very few pro-life obstetrics and gynaecology consultants how the conscience clause in the 1967 Abortion Act has helped them.
7] The Voluntary Euthanasia Society described the Report as ‘very powerful.’ Most other authorities described it as ‘neutral’ or ‘balanced’. A VES spokesman said, ‘It is a huge step forward and it brings the possibility of changing the law in this country forward by many years.’ Well, what else could, or would, the VES say?
8] Less predictable and more depressing were the comments attributed to the chairman of the Select Committee which produced the Report, Lord Mackay of Clashfern, a former Lord Chancellor and a well known evangelical Christian. He has said that a wide range of views had been taken on board before compiling the Report, which he stated was premised on the principle of ‘patient autonomy’. This latter phrase should set alarm bells clanging. Chapter 16 of The Edge of Life is entitled Autonomy, freedom, rights and choice and it deals with these tricky, but fundamental, issues. Lord Mackay was sent a copy of my book (in fact, he had two because I sent him one, and Affinity sent him another) – perhaps he did not bother to read it, or perhaps he disagreed with it. Whatever, it must be recognised that unfettered autonomy is wholly unhelpful. It is typically used to express the notion that, ‘there are no limits to my freedom, it is my body, my life, I can do as I please.’ If that is your ethical starting-point, then euthanasia (as well as abortion and infanticide) is an inescapable consequence.
Furthermore, Lord Mackay stated that, ‘The message is the need to recognise that assisted dying and voluntary euthanasia can be regarded as simply alternative ways of legally ending a terminally ill patient's life.’ I know The Guardian newspaper can print gobbledegook, so I am not entirely sure of the accuracy of this strange quotation. Is it really stating the horrible? Is it saying that assisted suicide and voluntary euthanasia are not only equivalent, but, horror of horrors, that they can also be ethically and legally justified? I fear the latter may be the case. At any rate, The Guardian’s article continued, ‘Even Lord Mackay himself, current patron of the Lawyers' Christian Fellowship, refused to confirm whether he was for or against the Report's findings.’ If that is an example of Christian leadership, then we are in deep trouble.
The Future of
Euthanasia in the UK
This Bill, or something similar, will be back again – Lord Joffe has already said that he is ready and willing to have another go himself. Or, as seems more likely, both the House of Commons and the House of Lords will have their chance to chew over the issue of euthanasia in, probably, 2006.
As a result of the 1994 House of Lords Report, the euthanasia train was derailed and then firmly shunted off into a remote siding. As a result of this 2005 House of Lords Report, the euthanasia train in now back on track and has slowly rolled out onto the mainline. Where it is going, how many are on board, and when it will arrive are currently all unknowns. But this is known – it can yet be halted. But until Christians and the ‘morally sensitive’ wake up to the dangers of a runaway train, it will begin to gather sufficient momentum to do some serious and irreparable harm.
In The Edge of Life – Dying, Death and Euthanasia, I predicted (p. 99) that a euthanasia bill would be on our statute book by 2008. It affords me no comfort to think that I might yet have guessed correctly.