Would judicial consent for assisted dying protect vulnerable people?BMJ 2015; 351 doi: https://doi.org/10.1136/bmj.h4437 (Published 19 August 2015) Cite this as: BMJ 2015;351:h4437
- Jacky Davis, consultant radiologist, Whittington Hospital, London, chair of Healthcare Professionals for Assisted Dying, and member of BMA Council and BMA Medical Ethics Committee,
- Ilora Finlay, professor of palliative medicine, Cardiff University, co-chair of Living and Dying Well, chair elect of National Council for Palliative Care, immediate past president of BMA, and member of BMA Medical Ethics Committee
- Correspondence to: J Davis , I Finlay
Next month the United Kingdom’s MPs will debate the Assisted Dying Bill championed by the Labour MP Rob Marris.1 It is based on Charles Falconer’s bill that made unprecedented progress through the House of Lords, only to run out of time before the general election.
The Marris-Falconer bill would offer the possibility of an assisted death for terminally ill, mentally competent adults. After meeting strict legal safeguards (including the involvement of a High Court judge) such people would be able to self administer life ending drugs. The bill is based on legislation in the US state of Oregon that has operated safely since 1997. Similar legislation has since been adopted by the states of Washington and Vermont and is being considered by several others.
One concern among opponents of assisted dying is the “slippery slope,” whereby the law could be extended to include, or could disproportionately involve, vulnerable people—including people with disability, older people, or those who lack the capacity to make an informed decision. But no such abuse or extension of the law has occurred in Oregon, where assisted deaths account for about 0.3% of all deaths.2 Research shows that potentially vulnerable groups are actually under-represented in figures showing people who have chosen an assisted death.3 Nor, importantly, has there been any evidence of coercion. Nevertheless, to meet the concerns of those who oppose a change in the UK law, the House of Lords introduced the additional safeguard of judicial oversight.
Under the proposed legislation, patients themselves make the request for assisted dying. Patients and their medical records are independently assessed by two doctors to check whether they meet the eligibility criteria. The patient must be informed of all available palliative care options, and, if either doctor has any doubts about the person’s capacity, referral to a psychiatrist is mandated. The request would then go to a High Court judge of the Family Division, who would again check whether the patient met the eligibility criteria and that he or she had a voluntary, clear, settled, and informed wish to end his or her life. The introduction of this court model adds to the already considerable protections offered, including the recording and reporting to parliament of all assisted deaths.
Opponents of assisted dying claim that these safeguards are inadequate, but they are in fact far more robust than anything in place in the current, confused state of affairs. At present, every two weeks someone travels abroad from the UK to die, and more than 300 terminally ill people take their own lives in this country each year.4 5 In addition, 37% of 600 UK doctors surveyed think that healthcare professionals already help terminally ill patients to die,6 and an estimated 1000 people a year die through unregulated voluntary euthanasia.7 All of this happens behind closed doors, with no safeguards, regulation, or monitoring. If an investigation into such a death does take place, it does so only after the person has died, when it is too late to offer alternatives or prevent potential abuse.
Assisted dying as proposed in the Marris-Falconer bill bears no relation to the current laws in the Benelux countries, which were far wider in scope when introduced; nor is it a leap in the dark. It is based on 27 years’ combined experience in the United States, carefully monitored and documented. Its opponents’ fears have not materialised. The Oregon Hospice Association withdrew its objections to the state’s legislation when it became clear that its initial concerns were unfounded.8
The question of assisted dying will not go away (this bill does not cover “assisted suicide,” which would include people who are not terminally ill; in addition, these patients are not “suicidal”—they do not want to die, but, faced with imminent death, they want control over it). Society’s desire for appropriate legislation is clear: the largest poll (of 5000) on the issue found that 82% of the UK public were in favour, including 79% of religious people and 86% of disabled people.9
Professional bodies worldwide are realigning themselves to respect their patients’ wishes. Some 51% of UK GPs would be willing to play a role in the assisted dying process, with a predicted 1200 new cases each year. The California Medical Association recently moved to a neutral position on assisted dying,10 while the Canadian Medical Association is taking an active role in the debate on how best to introduce legislation.11 (Meanwhile, the CEO of a UK hospice recently spoke out in support of assisted dying while remaining anonymous for fear of repercussions12). In the UK, the Supreme Court has issued a final warning for parliament to act on the question13; the government should heed the court, respect the wishes of the public, and allow sufficient time for a full and fair debate on the bill next month, rather than dodging the issue.
Society has moved beyond its tipping point on the question of assisted dying. One day we will look back, as we do now at other social changes such as the legalisation of homosexuality, and wonder how we ever tolerated such cruel attitudes. The many safeguards, including judicial oversight, in the proposed legislation—along with the body of evidence of safe practice from jurisdictions where assisted dying is legal—should reassure opponents and allow them to support a bill that will result not in more people dying but in fewer people suffering.
Rob Marris’s private member’s bill requires doctors to decide who should and should not qualify for assisted suicide and a judge to confirm those decisions. Would such a scheme protect vulnerable people from harm? We need to ask ourselves: how effective would be the proposed assessment by doctors? And would involving the court add protective value?
No black or white judgments
Doctors can diagnose terminal illness and can offer a broad prognosis of its likely course. These judgments are not, however, black or white. How, for example, should a doctor respond if faced with a patient who could have anything from three months to a year to live but who is forcefully demanding an assisted suicide? Patient pressure is a reality of medical practice today.
Many of the criteria listed by Marris—and arguably the most difficult to assess—lie outside clinical practice. How, for example, would a doctor decide whether a request for assisted suicide reflected a “settled wish” or whether unseen personal or family pressures had influenced the request? In today’s world of hard pressed, multi-partner GP practices and overwhelmed hospital clinics, we often know very little of our patients’ lives beyond the consulting room. Yet doctors would be required to satisfy themselves that all of the designated criteria—social as well as clinical—were met.
Research has shown that many patients lack the capacity to consent to treatment.14 Here we are talking about something more serious—suicide. How is the capacity for that to be established? Marris proposes referral for psychiatric evaluation only in cases of doubt. But Oregon’s experience shows that doctors sometimes fail to recognise clinical depression and agree to assist suicide without referring for psychiatric evaluation.15
These problems are exacerbated by the unwillingness of most UK doctors to have anything to do with assisted suicide. In a recent survey of 1000 GPs only one in seven said that he or she would be prepared to conduct full assessments.16 So, people seeking assisted suicide would, in many cases, be assessed by doctors to whom they had been referred solely for that purpose and who would know even less of them than their regular physicians.
The role of the court
If doctors would find it hard to satisfy themselves that applicants for assisted suicide met all of the designated criteria, would the court be any better placed? Marris’s bill does not require the court to undertake any investigations or inquiries of its own. Indeed, it requires the court to dispose of an application “within 14 days or as soon as practicable thereafter.” The role envisaged for the court is little more than that of a rubber stamp.
The Association for Palliative Medicine considers this division of responsibility between doctors and the court unsafe: “It has the potential to produce situations in which each party to an assisted suicide decision takes spurious comfort from the involvement of the other and no one is fully accountable for the outcome.”17
The court already deals with issues involving life or death decisions—for example, withdrawing artificial nutrition and hydration or life support treatments. However, in such cases the court’s role is to resolve difficult dilemmas by conducting its own inquiries and investigations and reaching its own independent conclusions. Arguably, if parliament at some future date were to legalise assisted suicide, the High Court might be the appropriate vehicle for inquiring into and reaching independent judgments on such cases. It would, as it does now in other cases, draw on the advice of experts in specific fields, including doctors for the strictly medical aspects of such requests.
Whether a fully court based system would succeed in protecting vulnerable people is impossible to say for sure. Vulnerability takes many forms and exists across all societal groups.18 In Oregon deaths from assisted suicides have risen nearly sevenfold since legislation was introduced.19 Research suggesting that vulnerable groups are not at risk rests on flawed methodology.20 In Flanders, where 4.6% of all deaths are now “medically assisted,” the greatest rise is among those potentially vulnerable to discrimination and stigma.21 22 What is clear is that the hybrid system currently proposed would not offer protection to vulnerable people.
No serious evidence has been presented that the present law is in need of change, and in any case many of the assisted suicides highlighted in the media would not have been accommodated within Marris’s bill. Claims of covert law breaking by doctors lack foundation: research has concluded that such actions are “rare or non-existent” in the UK, and even the chair of Dignity in Dying has described them as “highly unlikely.”23
Most doctors oppose the legalisation of what is, in effect, physician assisted suicide.24 Among those who specialise in treating and caring for terminally ill people, opposition is nearly unanimous.25 Advocates of legalisation often say that this is a matter for society rather than for the medical profession. If that is so, let society make the decisions through the courts, which are accustomed to balancing the rights of individuals against those of the wider community. And let doctors concentrate on clinical care.
Cite this as: BMJ 2015;351:h4437
Competing interests: Both authors have read and understood the BMJ policy on declaration of interests and have no relevant interests to declare.
Provenance and peer review: Commissioned; not externally peer reviewed.