Fear of dying should not lead to dangerous legal changes

Laws are not just regulatory instruments but send a powerful social message, writes Ilora Finlay

WHEN I began working as a doctor early in the 1970s, end-of-life care was in its infancy.  Cicely Saunders had just begun her pioneering work on what she called “total pain” and very few clinicians knew how to alleviate pain and distress in the dying. Today the situation is transformed. Palliative care has been a recognised as a clinical speciality in Britain for 30 years; indeed, the country was ranked in first place in The Economist Intelligence Unit's Quality of Death index. For most people in Britain today, dying does not mean an agonising death, but a gentle ebbing away of life.

Why, then, as medical science has made enormous strides in alleviating the pain and distress of dying, are we seeing relentless campaigning for the legalisation of what is being euphemistically called “assisted dying”? 

Unlike earlier generations, for whom death was an ever-present and familiar reality, we now expect to live to a ripe old age and we put dying out of our thoughts.  An unexpected terminal prognosis can be a shattering experience. When death occurs, as often these days, in hospital, families cannot observe the gradual, and often gentle, process of natural dying.  Our images of dying are often derived from second-hand accounts or dramatic media depictions of death. Unfamiliarity breeds fear, and what we fear we seek to control.

What the campaigners for assisted dying are proposing is a major change to the criminal law: that doctors should be licensed to supply lethal drugs to people who are thought to meet certain criteria, even though these cannot be accurately defined in practice. Before any such change could responsibly be contemplated, it needs to be demonstrated beyond doubt that the existing law is dysfunctional or oppressive; and, if (and only if) that is so, that what would be put in its place would be better and safer for all. I have seen no convincing evidence on either count, and both the Westminster and Scottish parliaments have, as recently as 2015, reached the same conclusion.

One of the main planks of the campaign for assisted dying is that opinion polls show substantial majority support for a change in the law. Yet these polls are often sponsored by campaigning groups and the questions worded in such a way as to elicit desired answers. It is easy to say, especially when we are fit and healthy, that we wouldn't want to go on living in this or that situation. But although we say this, very few of us translate that into action by making an advance decision to refuse life-prolonging treatment. Opinion polling can also be influenced by media reporting, which by its nature tends to focus on the exceptional, such as a journey to Switzerland by someone seeking legalised assisted suicide there. Assisted deaths abroad accounted for just 0.008% of deaths of Britons in 2016. Yet each one makes the headlines, while thousands of normal deaths go unreported.

Doctors, who are already overstretched, would have to decide who should and should not be given lethal drugs. According to one 2015 survey of members of the Association of Palliative Medicine, a British organisation, fully 82% were opposed to changing the laws on assisted dying. 

Then there is the argument of patient choice. There is, in reality, already a large amount of choice in how we are treated, including how and where we die. If we are terminally ill, we may refuse life-prolonging treatment: if we do so, our doctors have a duty of care to support our dying with analgesia and other measures to relieve distress. But that is a totally different matter from asking a doctor deliberately to bring about our death. There is already a right to die: what there is not is a right to be killed.

We are assured by the campaigners that there would be safeguards. But the safeguards they put forward are just statements of what ideally should happen: they include no minimum actions to ensure that it does happen. The safeguards proposed are nothing more than broadly worded statements of intent.

To the strong-minded individual accustomed to being in control all his or her life, the law's prohibition of assisted suicide may look like a denial of a right. But I can say from long experience of caring for, literally, thousands of dying people over many years that even the strongest-willed can become very vulnerable when struggling to come to terms with their mortality. It is hard to think of any group of people more vulnerable than the dying. They need our support and meticulous care, not a prescription for lethal drugs. It is little wonder that in a 2015 survey of its membership the Association for Palliative Medicine found that 89% would not participate in assisted dying if it were ever to be legalised.

It may be that in highly exceptional circumstances one person may feel driven to help another out of this world for perfectly altruistic reasons. In Britain, the existing law already recognises this with its provision not to bring charges where the circumstances do not warrant prosecution: such as if the person is driven out of compassion, or if their actions are characterised as “reluctant encouragement”. What is being proposed is something quite different: namely, to create an advance licensing system for assisting the suicides of certain categories of people. We would not seriously consider doing this for other criminal laws.

We should not forget that laws are more than just regulatory instruments. They also send powerful social messages. An assisted dying law sends the subliminal message, however unintended by legislators, that if we are terminally ill taking our own lives is something we should consider. Changing the social message of the law changes its dynamic. It is hardly surprising therefore that legalisation is inevitably followed by a continuing upsurge in such deaths. 

The law that we have may not suit everyone but it does the job for which it was designed: to deter and, if necessary, punish malicious acts while tempering justice with mercy where appropriate.

Ilora Finlay is a crossbench peer in the House of Lords and chair of Living and Dying Well