For the past two decades, the House of Lords has been agonising about the possibility of legalising euthanasia or assisted dying. Two House of Lords Select Committees have considered this at length: the first in the early 1990s, of which Archbishop John Habgood was a member; and the second a decade later, which included Bishop Christopher Herbert.
Last week, the peers made a crucial decision (News, 10 July). By a majority of 194 to 141, they decided to reject what many experts believed was a serious opportunity to change the law.
The context was the rather obscure Coroners and Justice Bill. Within this, a very significant and ingenious attempt was made to amend the Suicide Act of 1961. The amendment had some powerful sponsors, including the former Lord Chancellor, Lord Falconer, and Baroness Jay, a Prime Minister’s daughter and uniquely a former member of both of the Select Committees.
The proposed amendment also had considerable legal logic. The Suicide Act decriminalised suicide at a time when courts had already become reluctant to imprison those who attempted but failed to take their own life. The Act was widely seen as a compassionate move, which also recognised the futility of this law in the early 1960s.
It remained an offence, however, for anyone to encourage or assist someone to commit suicide. Suicide itself was decriminalised, but (contrary to popular interpretation) it did not become a right with a corresponding duty for others to assist, encourage, or even passively witness a suicide.
Five decades later, practice has clearly changed. The amendment’s sponsors argued, understandably, that further decriminalisation is now needed — this time for those assisting suicide and not simply for those attempting to commit suicide.
After more than 100 cases of assisted suicide involving relatives going to clinics in Switzerland (where assisted suicide was never made illegal) and no prosecutions to date, parts of the Suicide Act now look outdated and futile. Opinion polls also suggest widespread public sympathy (by churchgoers, too) for those assisting the terminally ill in this way.
Lord Falconer and his fellow sponsors argued that legal clarity was needed. His amendment sought to introduce a careful procedure for checking that the individual really was terminally ill, had capacity, and agreed freely in writing, and that this was all properly and independently witnessed. If the amendment had been passed, then those following this procedure would no longer have risked prosecution (however unlikely that might actually be).
This needs to be put into a wider setting. It is now firmly established in law, as well as good medical practice set by the GMC and BMA, that someone with capacity has the right to refuse life-sustaining treatment, and that it would be an offence for a doctor to give treatment against the clear wishes of a patient. In addition, doctors, whatever their personal or religious views, must now respect valid advance directives (living wills) about refusing such treatment.
Courts may also allow the withdrawal of life-sustaining treatment (including artificial nutrition), when it is deemed to be of no benefit to someone permanently comatose.
Does all this amount to assisted dying, or even euthanasia? And what about so-called double effect, when, for example, a doctor gives treatment in order to relieve severe pain, while realising that it may also shorten the patient’s life?
Much depends here upon definitions. My own definition of euthanasia is: medical action or omission which knowingly results in the death of a person. On this definition, all of the types of treatment or non-treatment in the past two paragraphs (which many of us already support) are forms of euthanasia.
If that is so, then standard modern medical practice in Britain already permits euthanasia. The question becomes not: “Should we legalise euthanasia?” but rather: “Where should we draw the line?”
The House of Lords’ rejection of the Falconer amendment draws the line very decisively and subtly. Thanks in large part to Baroness Professor Ilora Finlay, a renowned expert in palliative medicine and also a committed Anglican, the peers have shown that they can balance the different demands of justice and compassion with great sensitivity.
Baroness Finlay, with the lawyer Lord Carlile, argued at length in the House and in the press, that it was right to show compassion to relatives who take the terminally ill to Switzerland, but that it was important that the Director of Public Prosecutions continues to review each case carefully, in order to ensure that no abuse is involved. They also argued that Lord Joffe’s successive attempts to change the law demonstrated that there was a considerable slippery slope.
If taking the terminally ill to Swiss clinics were to be decriminalised, how long would it be before clinics arose in Britain? If assisting those with capacity were to be decriminalised, what about those with limited capacity or lacking capacity? Difficult cases notoriously can make bad laws.
It was public arguments such as these that seem to have convinced the peers. I suspect that their decision makes any change in English law in the immediate future within this vexed area less likely. The House of Lords has proved its worth.
Canon Robin Gill is Michael Ramsey Professor of Modern Theology at the University of Kent.