THE Commission on Assisted Dying assembled by Lord Falconer knew that it had a large stone to push uphill. Parliamentary debates too numerable to recall have considered various schemes for euthanasia and found all wanting. A certain level of help with the stone-pushing has been gained by presenting this as a libertarian issue: those nasty, conservative Churches preventing people from doing what they wish. But, in general, the difficulties of regulation and the lack of safeguards have left a large body of opinion unconvinced that a change in the law can be made securely, even before any slippery-slope arguments are deployed.
The Commission’s response has been to turn on its head the usual application of the principle that hard cases make bad law. By focusing on the relatively few hard cases where competent, terminally ill patients are prevented from seeking help to shorten their own suffering, it seeks to prove that the present law is bad. The Commission is to be commended for restricting its criteria to the least vulnerable: people with a terminal illness, with the mental capacity to make an informed choice, and with the physical capability to administer the lethal dose themselves. Thus the Commission concedes that it must create a number of hard cases of its own, one of them being Sir Terry Pratchett, a dementia-sufferer, who helped to fund the Commission, but who would not meet its criteria.
There will always be hard cases, whether or not the law is changed, and their presence demands that this debate is conducted with care and with a minimum of hand-wringing. Both the Commission and its opponents agree that the care of the dying requires far better funding than at present. The Commission argues that this should include legal and medical provision for assisted dying. We would argue that the introduction of assisted dying could undermine efforts to improve palliative care; further, that such improvements should obviate the need for a patient to commit suicide.
This is not a pious hope. A significant change has taken place in recent years with the development of the Liverpool Care Pathway, a formal acknowledgement by medical staff, in consultation with patients and relatives, that a patient is in the last hours or days of life, and therefore ought to be treated differently. “Their death must not be considered a failure; the only failure is, if a person’s death is not as restful and dignified as possible” (What is the LCP? Marie Curie Palliative Care Institute, Liverpool, April 2010). Loss of dignity, which is often cited by those seeking an assisted death, is now largely avoidable in theory, and ought to be in practice. The debate, therefore, should focus on how to ensure for all an assisted natural death, not one that is unnaturally curtailed.