Abstract
This is the third publication in a new series entitled Debating Law. It has a relatively novel format with which few reviewers will be familiar, and who are, thus, themselves, presented with something of a challenge. Is one to offer a critique of the format or is one to confine oneself to an analysis of the content? As to the former, a few words will be not be out of place at the end of this piece. As to the latter, a reviewer should be neutral – but is this possible given the context of the debate format? One would like to think that one was reviewing the quality of the debate rather than adjudicating its result but, when it comes to the point, it is extraordinarily difficult to dissociate the two. It is, therefore, particularly important that the reviewer declares any competing interests and, here, I must plead guilty. There is nothing like the calendar for influencing one’s attitude to death, and, while the great majority of those who have written on the subject have done so from the metaphorical position of window-shoppers, I find myself close to that of the purchaser. It is bound to influence one’s reaction to the views of others, and the reader is entitled to decide whether the conclusions are fairly reached
My first critical reaction to the book as a whole lies in its title and, correlatively, with each author’s response to the vexed question of definition. Euthanasia has been authoritatively defined in the 1993 House of Lords Select Committee as: ‘a deliberate intervention undertaken with the express intention of ending a life to relieve intractable suffering’ (paragraph 21-1). I take this as implying not only a specific intention but, also, as involving some form of activity on the part of the outside agency. Put like that, it is a very constrictive definition, which does not lend itself readily to categorization. This is not to say that the circumstances are irrelevant. Indeed, there is much to be said for structuring euthanasia on a consent model. There is nothing contradictory in accepting voluntary, non-voluntary and involuntary variations on the theme. In effect, however, it limits euthanasia to what is popularly known as ‘mercy killing’ in general, and physician accomplished suicide in respect of the patient’s medical attendant – though, I must point out that Professor Jackson takes precisely the opposite view at pp.1–2 while Professor Keown does not deny the possibility of intentional killing or assisting suicide by omission coming within the definition (at pp.86–87).
Given the limitation implicit in my definition, the law on euthanasia becomes crystal clear – no matter who may be the perpetrator, it is unlawful killing with intent, a straightforward legal, as opposed to moral, concept. Any further difficulty then lies in the use of language. If we are speaking of moral dilemmas such as the continuance or withdrawal of medically futile treatment at the end of life, we are speaking not of euthanasia but of assistance with death, and this is what this book is about.
This is not to suggest that the authors do not accept this wholeheartedly and make their position clear. Thus, Professor Jackson lays out her stall early on when she says: ‘I will also use the term assisted dying to refer to both euthanasia and assisted suicide’ (at p.2), this being on the grounds that the central question in the debate is ‘whether it is sometimes acceptable to deliberately do something to help bring about a patient’s death’ (my emphasis). Professor Keown’s contribution is headed: ‘Against Decriminalising Euthanasia’. Nevertheless, he takes much the same position, albeit in a rather more constrained fashion, when he proposes to: ‘refer throughout [his contribution] to “VAE/PAS”: “voluntary, active euthanasia and/or physician-assisted suicide”’ (at p.84) – this being for the rather pragmatic purpose of widening his target so as to include those who would argue for the decriminalisation of the latter only. Thus, he waters down Professor Jackson’s stance so as to involve only voluntarily ending one’s life; he also distinguishes physician assisted suicide from assistance by others – a distinction which Professor Jackson regards as unnecessary (p.2).
The inevitable result of widening the definition is to cloud both the legal and the moral issues that are associated with the alternative concept of euthanasia, which can be expressively termed ‘easing the passing’. Distinctions then become blurred at both ends of the scale; good medical treatment merges with ‘mercy killing’, while acceptance of the patient’s right to refuse treatment comes close to assisting suicide – and the lines drawing such distinctions also draw the line between legality and criminality.
It is this far wider interpretation of euthanasia, essentially a matter of assisted dying, that is covered in this debate, the express intention being to identify whether the legal background to assisting a person to end his or her life should remain as it is – an offence governed by an uncertain amalgam of common and statute law – or be taken out of the criminal sphere. The difficulty, in either case, lies in arguing the case for such a wide subject as if it were a single whole. It is, for example, perfectly possible, albeit not without difficulties according to the circumstances, to approve physician assisted suicide and to disapprove physician accomplished suicide; the author’s views will, accordingly, be more easily understood when the subject is broken down into its component parts. Put another way, is a holistic view of euthanasia a tenable prospectus? I doubt it and I think the approaches adopted by both authors indicate that they also agree.
Looking at the contributions from this angle, Professor Jackson considers a number of variations on the theme of assisted dying – such as the invocation of the principle of double effect, withdrawal of treatment, terminal sedation and refusal of treatment – and uses these with skill to plead the incongruity of the law in respect of euthanasia. Professor Keown adopts a novel model in which he advances into his opponent’s court and chooses 10 major objections to his cause, which are in favour of decriminalisation; he then subjects these to in-depth criticism. My impression is that, in so doing he adopts a defensive attitude and, thereby, limits his options. Thus, for example, while Jackson devotes considerable space to discussion of withdrawal or refusal of treatment, I was a trifle disappointed to find so little dialogue on the issues – which is, perhaps, a selfish criticism as it is the aspect of assisted dying which this reviewer finds most confusing from both the legal and the moral angles.
Elsewhere, the majority of the common arguments in favour of and against assisted dying are given a fair and scholarly hearing – sometimes with surprising results. The ‘sanctity of life’ doctrine – which Keown neatly rejects in favour of ‘inviolability of life’, while, at the same time, dismissing ‘vitalism’ as a morally indefensible tenet – is regarded by both as being by no means absolute. The vexed question as to the reality of slippery slopes is so keenly argued as to urge the reader to decide the winner – for what it is worth, this reviewer’s vote goes to Professor Keown, who can draw on the actual situation that has developed in the Netherlands, rather than Professor Jackson who must rely on impressive yet still hypothetical figures as to what may happen elsewhere in the future. The slippery slope argument is closely allied to the role of compassion in formulating one’s attitude to both physician assisted and, especially in the context of neuromuscular disease, physician accomplished suicide. Professor Jackson’s support is strongly motivated by sympathy for the individual sufferer. Professor Keown accepts that compassion is a laudable emotion but it is not, in his view, a moral principle; the inherent possibilities of extension of the grounds for assisting or accomplishing suicide are too serious for them to be accepted on compassionate terms alone (at p.102) and it is here that I identify the major conceptual differences between the two authors.
But, then, one begins to wonder – are the differences between the authors as stark as appears at first sight? Are they not really more conceptual than meaningful? As is well known, Professor Jackson (2004) coined the phrase ‘Whose death is it anyway?’, whereas Professor Keown speaks, in the same terms, of ‘Whose life is it?’ (p.87), and, although both spotlight patient autonomy, they are not the same question. Professor Jackson sees control of one’s death as an intensely private matter governed, in the end, by individualistic autonomy – subject only to an outsider’s equivalent right to distance him- or herself from any resulting involvement. Professor Keown, by contrast, asks: ‘How can assisting suicide, a matter of the greatest public concern, ever be a private matter’ (at p.156) and, thereby, limits one’s autonomous rights to those of relational autonomy. Are we dealing with different vantage points rather than differing views?
Whatever the answer, we are left with two protagonists who have it in common that each is unhappy with the status quo. Wherein lies the answer? Professor Jackson makes a strong case for tidying up an anomalous situation by way of enabling legislation – and it is important to note that she seeks no more. Indeed, she positively rejects decriminalisation in favour of the formulation of statutory defences against existing crimes. She sets out her own proposals and answers many of the anticipated criticisms. Her difficulty, of course, is that, relatively recently, similar Bills have been put before both the Westminster and Holyrood Parliaments and have been consistently rejected (for example the Assisted Dying for the Terminally Ill Bill 2004 and the End of Life Assistance (Scotland) Bill 2010). Is it possible to draft a statute that serves its purpose and is still proof against abuse? I, personally, get nervous when anyone adopts the Abortion Act as a paradigm – as Professor Jackson does – and it may well be that the comparison is at least a sub-conscious reason why many reject a similar policy in respect of assisted death.
In the other corner, Professor Keown adopts an absolutist stance – ‘The euthanasia debate is not about killing pain; it is about killing patients’ (p.83). Accordingly, he eschews any relaxation of the law and takes refuge in improving palliative care – which is fair enough, since that is another name for assistance in dying. But is this not wishful thinking? If you asked 1000 medical students at the end of their degree year ‘what specialty do you hope to enter?’ it is unlikely that more than a handful would opt for palliative care – and these would be distributed among the care of the elderly sick, not merely those who were candidates for assistance in dying. Undoubtedly, Professor Keown is right in his intention but, for good or for bad, the law of supply and demand warns us that Professor Jackson is less unlikely to succeed. But one can still ask – has a one step at a time approach (Mason and Mulligan, 1996) been completely abandoned? Do we need an overarching, cover-all statute? Would not a relatively simple amendment to the Suicide Act 1961, s.2(1) in favour of physician assisted dying satisfy any public preference for change which currently exists? I fancy this is not too far from that which Professor Jackson is proposing at p.65 and which must attract considerable sympathy. But, to Professor Keown, a ‘small step’ in that direction is, logically, a first step – and he provides sufficient evidence to ensure sincere respect for his view.
Finally, how do we stand as to the questions posed in the first sentence of this review? There is no doubt that the format leads to an invigorating read which might have been even more stimulating had the contributions not been written blind – the atmosphere of the debating hall might have been even more compelling. As it is, however, it provides a fascinating précis of a massive subject written explicitly from different poles by two authoritative contributors. It is a ‘must read’ and I say this despite some premonitions of déjà vu, which are, now, dispelled. Who won? Only the individual reader can say.