No reason to fear the slippery slope

by
05 August 2009

The Law Lords’ judgment on assisted dying balances justice and compassion, says Robin Gill

Elated: Debbie Purdy and her husband at the House of Lords last week

Elated: Debbie Purdy and her husband at the House of Lords last week

THREE WEEKS ago, I wrote about an important decision of the House of Lords to reject an attempt to decriminalise the act of helping the terminally ill to go abroad for assisted dying. By a majority of 194 to 141, peers decided in early July to reject what many experts believed was a very serious chance to change the law (the so-called Falconer amendment).

Soon afterwards, however, it became apparent that this decision had a knock-on effect on the Law Lords. They had already started to consider the appeal of Debbie Purdy (who has multiple sclerosis) for written clarification from the Director of Public Prosecutions (DPP) of the grounds on which he would or would not prosecute those helping people to go abroad for assisted dying. Had the Falconer amendment been accepted, their judgment on this appeal would have been unnecessary. Once it was rejected, they needed to act swiftly, since their roles were very soon to be replaced by the new Supreme Court. On 30 July they made their final and historic judgment to uphold Debbie Purdy’s appeal.

Does this judgment nullify the House of Lords vote, and should Churches seek to oppose it? I would suggest “no” to both questions.

A central objection of the palliative-care specialist Baroness Finlay and the lawyer Lord Carlile to the Falconer amendment was that it removed the need for the DPP to review the cases of friends and relatives who took the terminally ill to Switzerland for assisted dying, pro­vided they stuck to agreed procedures (doctors independently checking that patients were indeed terminally ill, and had capacity, and witnesses that they had agreed freely in writing). The amendment would have changed the law. Acts falling into this category would have been decriminalised and thus taken outside the remit of the DPP.

After the Purdy judgment, how­ever, the DPP will continue to review all cases in principle to ensure that no abuse is involved. None will be outside the law. He will, though, have to give clearer written details of the grounds on which prosecutions are likely to be brought. A DPP always has discretion not to prosecute even if a crime has apparently been committed. After 115 cases using this discretion, he has so far given written grounds for his decision only once (a case involving a young patient, severely disabled, but not terminally ill). Now he will need to be more explicit, giving Debbie Purdy (and others) enough information to assess whether her husband is likely to be prosecuted if he does finally take her to Switzerland for assisted dying.

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The other main objection of Baroness Finlay and Lord Carlile to the Falconer amendment was that it represented a very slippery slope. How long would it be before assisted dying clinics arose in Britain? And what about patients with limited capacity, or lacking capacity? And what about those who were not terminally ill but had intractable pain, or disability, depression, dis­com­fort, financial ruin, or just a persistent capacity to embarrass or annoy others?

It is probably too early to know whether the Purdy judgment might precipitate such slippery slopes. The DPP’s final written grounds will not be in place until next spring, and there will be an extensive public consultation before then. There should be plenty of opportunities for Churches and other groups to raise concerns and seek assurances.

It is also worth noting that, when a similar Law Lords judgment in 1992 allowed the withdrawal of life-sustaining treatment (including artificial nutrition and hydration) if deemed to be of no benefit to some­one permanently insensate and comatose, it was predicted that this would soon result in the involuntary euthanasia of, say, people with dementia. Yet so far this slippery slope has not emerged.

I argued earlier that the better question to ask is not “Should we legalise euthanasia?” but rather “Where should we draw the line?” Christians are not united on this vexed issue; nor is the general public. In reality, every ethically responsible person (whether religious or not) needs to draw the line somewhere, since none would defend, say, Dr Harold Shipman’s drastic fore­shorten­ing of hundreds of elderly (and some not so elderly) lives seemingly for his own satisfaction rather than for any benefit to, or wish expressed by, his patients. And even when religious leaders are broadly united (typically on the more conservative side of the debate), their parishioners remain divided.

Interestingly, Debbie Purdy her­self, in the aftermath of her successful appeal, made it clear that she, too, wants a line to be drawn, and is not in favour of anyone for any reason being allowed to take people to Switzerland for assisted dying with­out fear of prosecution. Instead, what she wants (and should now receive) is a clearer line in writing drawn up by the DPP.

Having read the Purdy judgment carefully, I have been impressed by the compassion, sensitivity, and persuasiveness of the Law Lords. In my view, peers in the House of Lords, including the Law Lords, have shown that they can balance the different demands of justice and compassion with considerable sensitivity. Like Baroness Finlay and Lord Carlile, I do wish cases still to be reviewed (compassionately) by the DPP, and fear the consequences for other vulnerable people of changing the law.

Among doctors and lawyers, es­pecially, there is a reluctance actually to change the law or to use existing law to prosecute those who act compassionately. This may not be very tidy, but it does balance com­peting (and perhaps incommensurable) demands from people at their most vulnerable.

Canon Robin Gill is Michael Ramsey Professor of Modern Theology at the University of Kent.

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