The Inner Temple Yearbook 2017–2018
Law at the End of Life
LAW AT THE END OF LIFE Organised by Master Owen Davies, Fallon Alexis (QEB Hollis Whiteman) and Robin Sellers (2 King’s Bench Walk), the ‘Law at the End of Life’ student advocacy weekend, explored the many challenging legal issues surrounding assisted dying, focusing on the laws governing the end of life and the impact on the experiences of patients and relatives. Students were fortunate to hear from a distinguished panel of speakers including The Baroness Finlay of Llandaff and Master Falconer who explain below their own views on this controversial topic.
THE BARONESS FINLAY OF LLANDAFF There is much confusion in people’s minds about dying. If you’re seriously ill and want to hasten your death, you can ask your doctor to halt any treatment that’s keeping you alive. And you will not be abandoned – a doctor has a duty of care to help you die in comfort and with dignity. In other words, you have a right to die.
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But that shouldn’t be confused with a right to involve someone else in bringing about your death – which is what ‘assisted dying’ (as it’s being called) means. A patient who refuses life-extending treatment isn’t expressing a suicide wish but an acceptance of death. Neither in law nor in medical ethics does treatment refusal constitute suicide. Asking a doctor to give you the means to take your life is a completely different matter. Take, for example, someone with motor neurone disease who is ventilator-dependent and ‘has just had enough’. When ventilation is stopped, with treatment in place that accords with modern guidelines, the patient will die quickly and peacefully from the underlying motor neurone disease. The so-called safeguards in the ‘assisted dying’ bills proposed are unsafe – when examined in detail, the proposals recently were rejected resoundingly by the House of Commons on a free vote by 330 to 118 votes. So let’s look at what has been suggested as so-called safeguards. Prognosis of a terminal illness of six months or less is guesswork. The Royal College of General Practitioners told the Mackay Committee that, when doctors try to predict death months ahead, “the scope for error can extend into years”. Oregon illustrates this – many of those supplied with lethal drugs there, on the basis of prognoses of six months or less, live for months or even years before either taking them or dying of natural causes. Assessing mental capacity isn’t a simple one-off. Cognitive impairment (often from the underlying disease or medication side-effects) and depression can be difficult to detect, especially in neurological conditions, and judgement can be skewed. Research in Oregon has shown that some patients cleared by doctors for legalised assisted suicide had actually been suffering from undiagnosed clinical depression. A doctor can’t know about pressures that go on behind closed doors. Coercion can come in many forms. Apart from external 66
pressures from family, seriously ill people can feel internalised pressures – to ‘do the decent thing’ and remove themselves as a care or a financial burden. And, once ‘assisted dying’ gets normalised, there are subtle societal pressures. Dr Theo Boer, a Dutch ethicist who was a member of one of Holland’s euthanasia review committees, has written that euthanasia is on the way to becoming a default mode of dying for cancer patients in the Netherlands. We are told by campaigners for ‘assisted dying’ that, where such practices have been legalised, patients continue to trust their doctors. Of course they do. We trust our doctors, not because the law says this or that, but because we need medical care and they’ve been judged qualified to treat us. But it’s the very trust inherent in the doctor–patient relationship, and the inevitable power-differential through the doctor’s knowledge and experience, that makes ‘assisted dying’ within medicine particularly dangerous. Doctor– patient trust rests on an implicit assumption that a doctor will always act in our best interests. A doctor who agrees to assist the suicide of a seriously ill patient risks sending the subliminal message that, in his or her professional view, death is the patient’s best outcome. The Royal College of Physicians recognised this risk when in 2009 it wrote to the Director of Public Prosecutions that “the trust afforded doctors and nurses gives their views considerable weight with their patients and the public” and warned that the involvement of doctors in assisting suicide was “open to misinterpretation”. A good doctor is more than just a diagnostician or prescriber. He (or she) must see the patient as a whole, fears and foibles as well as symptoms and scans, and guide as well as treat. Making doctors the gatekeepers for ‘assisted dying’ falsely presents it to the vulnerable patient as a beneficent and best-interests decision. It is little wonder that the Royal College of Physicians wrote that “our duty of care is to work with patients to mitigate and overcome their clinical difficulties and suffering” and that “this does not include being, in any way, part of their suicide”. Laws are more than just regulatory instruments. They send social messages. An ‘assisted dying’ law sends the message, however unintended, that if we are terminally ill, taking our own lives is a course of action to be considered. This is a road down which we would be very ill-advised to go.