Assisted Dying: Humanity or Autonomy?

Chapter 16
Assisted Dying: Humanity or Autonomy?


Tom Campbell


Introduction


Sheila McLean has made a very considerable contribution to the ongoing debate about the legalisation of ‘assisted dying’,1 a term which is used to cover both assisted suicide (when one person provides the means for another person to commit suicide) and voluntary euthanasia (when one person brings about the death of another at the latter’s request). In a number of articles2 and a major book3 McLean has argued in a balanced yet forceful manner for a legal process which gives individuals control over the time and manner of their own deaths. This autonomy-based right, she says, overrides such harms to other people as are likely to result from legalising the practice of assisted dying. This proposal is radical with respect to legal reform in that it includes no conditions, such as the poor health or suffering of the person receiving assistance, other than their mental competence. It is also radical philosophically in that its justification relies almost exclusively on the value of autonomy without involving other valued objectives, such as the relief of suffering.


In this body of work McLean draws on her extensive knowledge of relevant comparative law, and her formidable skills in normative jurisprudence, whilst demonstrating an impressive knowledge of end-of-life medical practice in a variety of countries. Without entering into detail on the wide range of empirical and legal matters relevant to issues of assisted dying, this chapter takes up some of the more philosophical aspects of McLean’s assessment of the ethical issues at stake. It questions elements of her autonomy-based moral justifications for a permissive approach to assisted dying, while largely concurring with her procedural recommendations for law reform. The aim is to support her telling contribution to this debate while suggesting modifications to its philosophical basis, which, on my view, ought to be oriented more to justifications of law reforms which focus primarily on the relief of suffering and only secondarily on the ethical importance of autonomy with respect to assisted dying.


The first part of the chapter explores McLean’s justification of assisted dying and identifies what she considers to be a desirable legal framework for such practices. The second part compares ‘humanity’ and ‘autonomy’ as rival candidates for providing the basis of the moral justification for permitting assisted dying. The chapter then develops a humanitarian position which incorporates only what may be called ‘instrumental autonomy’. It next discusses the eligibility criteria for receiving assistance in dying best suited to a humanity-based mode of assisted dying regulation and offers some ideas as to how they might be administered so as to protect the interests of those involved. The chapter concludes by suggesting that law reforms along the lines proposed by McLean are better grounded in a humanitarian moral justification in which considerations of autonomy feature mainly on account of their instrumental efficacy in protecting the interests of certain categories of vulnerable people.


McLean’s Justification of Assisted Dying


Since suicide is no longer an offence in most developed countries, including the UK, and since an increasing number of people in similar jurisdictions are living longer as a result of modern medical treatment, but often experience a very poor and sometimes miserable quality of life during that prolongation, it is a logical step to make provision for those who are in this situation and wish to end their lives, but who are not in a position, or do not wish, to fulfil this choice unassisted. This step requires the law to permit what would otherwise be criminal conduct on the part of those who advise or help someone to die. Going beyond the existing negative liberty right to commit suicide, as established by the abolition of legal prohibitions of suicide, it also requires assuring freedom from prosecution for those who provide assistance either by facilitating the suicide or by intervening directly to bring about the death of the person seeking assistance. In the absence of people willing to assist dying, there could also be a requirement for the persons choosing to die to have a positive claim right to such assistance as they need to implement their choice to die, establishing correlative duties on some others to provide such assistance. McLean’s own recommendations for law reform encompass legislating a negative liberty right for the providers of assisted dying but do not go so far as to commend a positive claim right to such assistance.


McLean reaches this position via the libertarian principle, derived from the work of John Stuart Mill,4 that a person’s liberty, or self-determination, should not be limited by law with respect to any action which is private in that it does not cause harm to anyone else.5 If no harm to others occurs, then there is no moral justification for placing legal limits on a person’s conduct. Where harm to others does result, then liberty may be restricted but only if the harm is sufficiently serious to justify such intervention. McLean does not contend that assisted dying does not produce some adverse consequences for third parties that may be classified as ‘harms’, such as significant financial and psychological disadvantage. Rather, her case is based on the contention that assisted dying has substantially greater moral significance for the person who dies than for those who are affected by that death. This enables her to deal with the standard range of criticisms that arise from the observation that any intended human death is likely to cause some harm to others, and is therefore typically a public rather than a purely private matter.


McLean’s position is based on a strong commitment to the moral priority of autonomy in relation to matters which primarily concern a person’s private interests, even when this may have some detrimental consequences for others.6 She reaches her conclusion on assisted dying by affirming the core prima facie case for respecting every competent person’s autonomy in relation to their own life and death, and deals with counter arguments by showing that, when these are properly analysed and subjected to empirical scrutiny, they do not carry the moral weight necessary to override the autonomy-based right to die. For instance, McLean responds to the contention that assisted dying can sometimes have a deleterious effect on relatives, so that it is not strictly a private matter relating only to the personal interests of the person whose life is at stake, by pointing out the much greater interests individuals have in their own existence. This, she suggests, has already been acknowledged in the legalisation of suicide, indicating that, if such criticisms of assisted dying were sound, they would be equally compelling with respect to legally permitting those suicides which do not involve the assistance of others.


In the course of her reflections McLean deals with a number of confusions which commonly feature in the right to die debate. Thus, she accepts that there are powerful considerations centring on the common law principle of the ‘sanctity of life’, which affirms the duty not to kill another human being, based on the high intrinsic value of human life. She notes, however, that even religious believers, who take the ‘sanctity’ of life to derive from the fact that life is a gift of God, accept a right of self-defence, including, in some circumstances, killing a life-threatening attacker. More generally, she notes that ‘the law has simultaneously restated the importance of the sanctity of human life while at the same time respecting the decisions made by people to reject that life by according dominance to the principle of respect for autonomy’.7 In this way she interprets the sanctity of life as no more than ‘a brake on treating human life in a casual way’ that ‘protects people from having their lives unwillingly removed’.8


Another confusion to which McLean draws our attention is the argument that the social origins of all moral values adopted by individuals presupposes the social nature of human life and thus conflicts with the isolationist self-centred perspective of those promoting individual autonomy.9 She rightly rejects the contention that, because an individual’s choices are in part the product of their socialisation, their choices may properly be limited by the values dominant in that society. McLean goes on to commend a less self-centred ‘relational rather than an atomizing version’10 of autonomy, in which the autonomous person takes into account the needs and interests of others when making her decisions, a factor which plays a significant role in the reasons that govern the conduct of autonomous individual agents, including those who, in certain circumstances, choose to die.


McLean reinforces her position by reference to the unfairness of excluding those who, for various reasons, are unable or unwilling to kill themselves, from the benefits that arise from having the liberty to do so. One of these benefits is that access to assisted dying enables individuals to undergo medical treatment which extends their lives without taking the risk that it might keep them alive to a stage when they are not able to commit suicide without assistance, which means that they do not have to forego this extra life in order to be in unaided control of the manner and timing of their death.11


Other more diffuse considerations, which apply to assisted dying but not to self-administered suicide, relate to the effects of an assisted dying system on the practice of health practitioners.12 These centre on the problems that arise when professionals who are thought of, and think of themselves, as caregivers and healers are officially involved in ending rather than prolonging human lives. Medical practitioners in general are unwilling to be publicly associated with assisted dying as distinct from palliative care and there is strong resistance amongst most health professions to any prospect of being required to take part in assisting dying as a treatment within their normal duties of patient care. This latter scenario is not commended by McLean and therefore does not present an immediate problem for her position, provided there are adequate sources of assistance available to meet the needs of those seeking assisted dying.


To the unwillingness of health professions to be involved in assisted dying must be added concerns about public attitudes towards the providers of health services, which could arise if the legalisation of assisted dying were to generate anxiety and distrust of physicians on the part of patients. This concern has more to do with how patients view health professionals rather than how health professionals view themselves. McLean’s responses to these considerations depends in part on a contextual analysis of the important moral and political distinction between acts and omissions, according to which people are rightly held responsible for their active conduct but only in a specific range of circumstances should they be held responsible for their failures to act. On this basis killing is (nearly always) wrong but letting someone die, in the absence of any special relationship, may not be. McLean argues that the medical duty of care towards a patient renders the distinction between act and omission morally irrelevant with respect to the provision of healthcare to existing patients by those who owe them a duty of care. In this context, letting die is morally no different from active killing.13 On this analysis, there is no reason for people to be more anxious about the latter than the former. This may not, of course, actually quell patient anxieties, any more than would be the case if there was transparency with respect to the current medical practice of routine termination of what are seen as futile treatments for dying persons, and with respect to the administration of medicines which hasten death while also relieving suffering under the cover of the principle of double effect, which, in effect, permits killing as a foreseen side effect of administering lethal doses of sedatives.14


On the basis of these moral considerations, particularly those relating to achieving parity between those who are able and those who are not able, or are unwilling, to commit suicide unaided, the legislative proposals put forward by McLean allow assisted dying for competent persons through abolishing existing offences relating to the provision of assisted dying, thus extending the existing negative liberty right to bring about the end one’s life to those who are not able to do so for practical or personal reasons. This differs from most proposals for law reform, which confine the extension of such a right only to those who are judged to be terminally ill and are medically assessed as having an unacceptable quality of life.15 McLean finds such requirements unacceptable because, under such a regime, the procedures involved in assisted suicide do not adequately respect the person’s autonomy and effectively give the power of veto to medical practitioners, thereby significantly reducing the scope of the individual’s control over their own life and death. She resists this ‘medicalisation’ of assisted dying through the adoption of medical criteria for eligibility, on the grounds that it is for the patients not their medical practitioners to decide on whether their lives are worth living.16


McLean deals with these physician-centred obstacles to patient autonomy by excluding the eligibility conditions of terminal illness and health-related suffering as necessary preconditions, and also by extending the range of persons who may assist in dying beyond medical practitioners, who would no longer have a gate-keeping role in decision-making in connection with assisted dying. Here McLean points to the Swiss model of assisted suicide in which, apart from the testing of the mental competence of the individual concerned, the only eligibility requirement is that the assisting persons do not stand to benefit from providing that assistance.17 This demedicalises the eligibility criteria for assisted suicide, provides some protection against unwarranted pressures being placed on vulnerable individuals, and creates a safe and dignified environment for the procedures involved in assisted dying.


However, McLean’s proposal makes the controversial assumption that any competent adult person should be eligible to request assistance in dying. In a succinct summation of her position she answers the criticism that ‘it cannot be acceptable that anyone, irrespective of their medical condition, should be allowed to seek and obtain an assisted death’18 with the response: ‘why not? If that same person had the emotional or physical capacity to commit suicide their choice would not be second-guessed and they would commit no crime’.19 This follows through the logic of her commitment to autonomy by endorsing a demedicalised and largely deregulated procedure for assisted dying.


Humanity or Autonomy?


Compelling as McLean’s recommendations for radical liberalisation of assisted dying may be, they do not reflect the views of the substantial majority of those in liberal democracies, who support a more restricted scope for assisted dying.20 For most people the predominant focus is on the strong desire to avoid both pointless and painful extensions of life, while still having full access to such healthcare as is available. The primary situations which are anticipated with dread are being kept alive in distressing and sometimes painful circumstances. The hoped-for alternative is a dignified and relatively painless death over which they have some control. From this perspective, assisted dying is not seen as being on a par with suicide in other contexts. Rather, it is fuelled by awareness that in many cases medical practice itself can give rise to the need for assistance in dying. Not unreasonably, therefore, what are viewed by the public as the most compelling, but not the sole, reasons for legalising assisted dying are absent if we are not dealing with the problem of prolonging lives in a way which involves either a miserable or a comatose existence.


Interestingly, McLean herself gives much of her attention to autonomy issues that arise within medical contexts and involve the forms of suffering which occur in terminal situations. An important part of her argument for the importance of assisted dying is that it facilitates individuals’ control over their lives not just generally but, most evidently, when confronted with serious medical conditions. She commends excluding illness-related suffering and terminal illness as conditions of eligibility for assisted dying on the grounds that this reduces the autonomy of the individual because it makes the successful fulfilment of their end-of-life choices contingent on a medical opinion as to whether the eligibility conditions are satisfied in their case. Yet the relevance of suffering, especially suffering involved in terminal illness, in practice features centrally in the reasons she gives as to why it is so important for individuals to have the right to legally permitted assistance in dying. The amelioration of unacceptable indignity and misery at the end of life, some of which is a direct although unintended result of progress in medical treatments, emerges as the chief underlying justification for legalising assisted dying. Her prime concern with the exclusion of those medical factors from the content of the law relating to assisted dying focuses on the importance of securing the legal capacity of the person principally involved effectively to protect their medically salient interests. To achieve this it is necessary, she argues, to exclude medical criteria, such as the existence of a ‘terminal illness’ and hence remove the need for medical judgment for the determination of eligibility for assisted dying.


Sound as this line of argument is in itself, it opens the way for legalising assisted dying for persons who choose to die on the basis of non-medical reasons, some which appear to rest on quite trivial grounds. This runs counter to the high value traditionally placed on human lives. This in turn raises concerns that some people without serious illness may be subject to the influence of those who have a vested interest in the outcome, or share controversial and extreme views as to the value of human life and the significance of suicide. Without questioning the importance of autonomy as it arises in the right to reject medical treatment, or the right to seek assistance in extending the right-holder’s life, it is highly questionable to approve of a system that permits assistance in dying to anyone who requests it, for whatever reason. Autonomy, outside the context of significant and ongoing suffering, seems an inadequate basis for assisting someone’s suicide or bringing about their death. It is the relief, or ending, of suffering that motivates others to assist in someone else’s dying. This humanitarian justification is central to the case for legalising assisted dying.21