Support 100 years of independent journalism.

  1. Politics
5 January 2012updated 27 Sep 2015 1:46am

A necessary fudge?

Assisted suicide should be illegal but tacitly permitted -- not legal under certain rigorously-enfor

By Nelson Jones

An unofficial commission headed by the former Lord Chancellor, Lord Falconer, is proposing changes in the law to allow doctors to assist a terminally ill person to take their own life, provided that certain conditions are met. For example, that the dying person is mentally competent and has less than 12 months to live.

In response, a statement from the Church of England, by the Bishop of Carlisle, draws attention to the “self-appointed” nature of the commission and suggests that it “excluded from its membership anyone with a known objection to assisted suicide.” And it supports the status quo.

The present law strikes an excellent balance between safeguarding hundreds of thousands of vulnerable people and treating with fairness and compassion those few people who, acting out of selfless motives, have assisted a loved one to die.

The law itself is quite clear, however: assisting a suicide is illegal, and punishable with up to 14 years in prison. In some cases relatives have faced prosecution not for assisted suicide but for murder, which carries a mandatory life sentence. Any “balance” is confined to an official statement, introduced last year in response to the Debbie Purdy case, of the circumstances under which the law might not be enforced.

Sign up for The New Statesman’s newsletters Tick the boxes of the newsletters you would like to receive. Quick and essential guide to domestic and global politics from the New Statesman's politics team. A weekly newsletter helping you fit together the pieces of the global economic slowdown. The New Statesman’s global affairs newsletter, every Monday and Friday. The best of the New Statesman, delivered to your inbox every weekday morning. The New Statesman’s weekly environment email on the politics, business and culture of the climate and nature crises - in your inbox every Thursday. Our weekly culture newsletter – from books and art to pop culture and memes – sent every Friday. A weekly round-up of some of the best articles featured in the most recent issue of the New Statesman, sent each Saturday. A newsletter showcasing the finest writing from the ideas section and the NS archive, covering political ideas, philosophy, criticism and intellectual history - sent every Wednesday. Sign up to receive information regarding NS events, subscription offers & product updates.

From a logical point of view, this is indefensible. It also offers only quailifed protection to those who would assist a dying relative. It implies that they will probably not be prosecuted, but they still know that they are breaking the law and that they are running a risk, however remote, that the CPS might take a stricter view in their own case. And can it really be good in principle to keep a law on the statute book when there is a codified public policy of disregarding it?

Content from our partners
How to create a responsible form of “buy now, pay later”
“Unions are helping improve conditions for drivers like me”
Transport is the core of levelling up

Perhaps it’s not too surprising to find the Church of England supporting an unprincipled and hypocritical fudge, especially when that fudge also represents the status quo. Unwilling to condemn assisted suicide outright on the grounds that it is for God alone to take away life, the bishop concentrates instead on the practical issue of whether more “vulnerable people” would be put under pressure by a change in the law to take their own lives. He claims that the commission has “singularly failed to demonstrate” that its proposals would not place vulnerable people at greater risk.

But that question was a major concern for Falconer’s commission, which concluded (albeit with a dissenting opinion from a clergyman on the panel) that it would be possible to devise sufficient safeguards. Any new system, the report stressed, must have such considerations “at its heart.”

So the debate hasn’t really progressed. Everyone seems to agree that the sticking point is whether vulnerable people would be put under pressure by a change in the law. Everyone agrees that putting vulnerable people under pressure is a bad thing to do: at least, it’s not being argued even by strong supporters of legalised assisted suicide or euthanasia that in some cases people ought to be put under pressure to end their own lives (to save scarce NHS resources, for example, or to help emotionally-burdened family members to move on with their own lives). Yet the implied pressure is present even in the suspicion that it might exist.

The present state of the law, on the other hand, might be said to place quite a different pressure on vulnerable people who are terminally ill and wish to end their own lives: the pressure not to ask for help and so expose their family members or medical staff to legal jeopardy.

It’s assumed — on what evidence? — that if the law were changed, terminally ill patients might feel themselves under pressure to agree to be “suicided” by their relatives, or perhaps by their doctors and that safeguards must be put in place to counteract this. In other words, both sides in this debate show a marked suspicion of the motives of the very people most intimately concerned with the welfare of the terminally ill, their next of kin and those professionally charged with their care. Both sides would rather place their faith in a set of impersonal (and somewhat inflexible) laws and regulations, in the form either of statute or of the existing guidelines, which by their nature must give rise to anomalies and inconsistencies.

Indeed, the commission’s proposals — and this, I think, is a serious objection to them — would replace the current fudge with a highly bureaucratic, box-ticking approach. Patients would have to prove that they were not depressed — although someone in constant pain with only weeks to live might be said to have every reason to be depressed — and be required to prove their resolution over a two-week cooling-off period. There would be forms to be filled in, monitoring systems to be implemented (and funded: OfDeath, anyone?), compulsory counselling to be provided.

Some doctors would not wish to co-operate with these procedures — possibly not even some doctors who at present will surreptitiously up the morphine levels of dying patients. I can even foresee the emergence of a cadre of specialist death-doctors, whose adherence to the spirit of the Hippocratic oath is reflected in their daily violation of its cardinal principle to “first, do no harm”.

So what is the answer? I must admit to being torn. I support autonomy for the individual, up to and including the right to take one’s own life (even for people who are not terminally ill). But once you institutionalise the process of suicide it begins to seem routine, normalised, an option that presents itself, or is presented, to the dying as a matter of course. And that begins to subvert the basic principles of medicine as they are publicly professed and believed in. Transparency and logic are achieved at the expense of discretion, privacy and that sense of the numinous that should properly surround issues of life and death.

So in the end I’m with the fudge. But it should be a proper fudge. Assisted suicide should be illegal but tacitly permitted, not legal under certain rigorously-enforced (and somewhat arbitrary) conditions and banned under all others, as Falconer seems to want. That would be in the interests neither of those who want to preserve life, nor even of those who want to die.