Is Falconer’s bill a folly?

lord falconerThe ‘Right-to-Die‘ campaign, while supported by the vast majority of the public, is heavily outgunned and outfunded by vested interests in the Government and Church. So most supporters feel we should be grateful for anything we can get, right?

This sad state of affairs is reflected in much of the effort to achieve legislation. Lord Falconer’s Assisted Dying Bill – at least in any of the available drafts and probable final version – is a beautifully polished example. Legally precise and crafted with all the razzmatazz one might expect from the Secretary of State for Justice, the bill looks like a ‘least worst attempt.’ The examples of Oregon and the Netherlands have clearly been considered and the questions asked, Which is the ‘safest’? Which is the least likely to be rejected by parliament?

Although the bill has a number of clauses that make use of sophisticated niceties of English law (such as provision for additional future regulations), Exit feels this attempt, like so many bills before, is the wrong way to go about things.

To demonstrate this, let us look at some more effective, more ethical, and more acceptable approaches.

Claudia Carr, from the University of Hertfordshire‘s School of Law, has proposed a tribunal system which is closer to Exit’s model by way of being able to examine individual cases. This would involve independent persons from both the medical and legal professions. Such a review body provides a more open, accountable and transparent system than merely having two doctors agreeing (as provided by Falconer’s bill).

But unfortunately even Carr’s proposals are an attempt to address the debate rather than the real concerns of patients. She rightly concludes that her system could avoid the inconsistencies and apparent abuses associated with the UK law on abortion; but by limiting her answer to those who are terminally ill (as does Falconer) she avoids the most noticeable group of people who fight for the right to die at a time of their own choosing.

For example:

It is unlikely that any of these high-profile cases would have been “assisted” by either Falconer or Carr’s proposals. Both legislative frameworks are asking the wrong question. They want to “do something” but without going so far as to really help someone who is unrelievably, unbearably (and often desperately) ill and wanting to choose the time of his or her own death. They are cowardly attempts. They pass the buck to Dignitas, to Exit, or to backstreet arrangements. Furthermore, by making blanket qualifications on who shall have ‘assistance’ they fail to provide any real safeguard, either for doctors or patients.

In days gone by, the good sense of a doctor could prevail. A doctor would assess whether his or her patient was indeed suffering unbearably and whether nothing else could be done to relieve that suffering acceptably. Today, that model needs to be expanded to include proper safeguards. The default position is, quite rightly, that a doctor should be under no obligation to help: but that a doctor should be able to advocate for his or her patient to ensure lawful treatment, including aid-in-dying, provided that patient is a competent adult reasonably and persistently requesting aid-in-dying. ‘Being terminally ill’ is clearly, from the above case examples, not the issue. Relieving suffering is.

Exit’s position has a number of other differences. We agree with Carr that a legal practitioner as well as a medical person should be involved in judging whether the person is competent; we agree that one of the medical persons assessing the person’s medical condition can be the person’s physician and that the other one should be independent; we propose a qualified assumption of competence for persons over 16 years of age; we provide for the possibility of a failed, authorised assisted suicide attempt and both cover and oblige the doctor to assist; and we address the possibility of residual legal matters and how to treat actions for negligence. We also incorporate the possible use of advance directives.

But we recognise that politicians, for a variety of reasons, will not always seek and follow the best academically sound advice (and here we humbly include Exit’s position, which is based on in-depth cross-disciplinary studies conducted by Glasgow University). The pressures to “do something” or “prevent something” may be very real. There is not always the option to support an ideal position.

Many proponents of the Falconer bill, as with Oregon, doubtless feel that it is a “step in the right direction.” Surely it could do some good for some people? This is a fairly persuasive argument. In the Netherlands, legislation has progressed in gradual stages. But in other countries, the temptation, having taken the first successful step, may be to regard the issue as having been “dealt with.” Only history will be the final judge. So in the meantime, our kindest wishes go to all those who are sincerely making efforts to address the concerns of people suffering unbearably and unrelievably. Whether their attempts at this stage seem to us in this article to fall short or not. Exit is only one voice among many.

references:

The Assisted Dying Bill by Lord Falconer (pdf)
Claudia Carr abstract at an Athens conference session on assisted dying
The death of philosopher Michèle Causse at Dignitas
(from Swiss TV)
Draft legislative framework supported by Exit

(Note: you can find links to laws in various countries by scrolling down the right-hand column)

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2 Responses to Is Falconer’s bill a folly?

  1. artshed1 says:

    nice article .thanks for this detailed discussion.

  2. Sarah Dennis says:

    Thank you for an intelligent discussion of these important issues.

    I wonder how these “experts” would attempt to distinguish cases of Alzheimer’s Disease from those of refractory and malignant mental illness. There needs to be recognition that there exist non-terminal illnesses that warrant compassion regarding end of life decisions.

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