Would permitting terminally ill people to obtain a consenting doctor's help to end their life really undermine our entire system of law? Yeah ... nah.
Grant Illingworth QC is concerned that if David Seymour’s End of Life Choice Bill is enacted, we somehow would be breaching the social contract on which our entire system of law rests. That would be a pretty big deal, if true.
The problem with this argument is that if it is correct, we’ve already broken that social contract long ago. Which makes me think that his objection can’t really be as strong as it first appears.
His claim is this. The State has a fundamental obligation to protect its weakest and most disadvantaged members. Allowing doctors to actively provide aid in dying breaches this obligation, because some weak and disadvantaged individuals inevitably will die because of it. Therefore, if the State permits such action to take place, it will breach its obligations to its citizens.
How do we know that weak and disadvantaged individuals will die? Well, he says, some people will manipulate their dying relatives into requesting aid in dying against their will. And as “doctors are fallible, just like any other human being”, they won’t be able to pick this up.
But here’s where things get tricky for Mr Illingworth. Because, any “competent” person may decide to die under the law as it is at the moment.
If you have cancer, you can decide to stop treatment at any point. If you are on life support, you can demand that it be removed. The fact such choices inevitably will cause your death is irrelevant to your right to decide.
You can even choose to starve yourself to death if you want to, and the law actively forbids anyone from intervening to stop you.
All of these decisions then rest upon a determination that a person is competent to make them. If you meet that test, your choice is sacrosanct and no-one may second guess it. But if you aren’t competent, then your decision does not have to be respected.
And determinations of competence are something that doctors make every time they assess whether someone is properly consenting to treatment. Equally, if a non-competent person seeks to end treatment, doctors may be ethically required to seek court permission to carry on doing so.
So, here’s the issue with Mr Illingworth’s position. As our law presently allows people to choose to die on a daily basis, and doctors regularly are determining that they are competent to do so, how do we know that these decisions are not being manipulated?
After all, greedy or mendacious relatives may be trying to get their relatives to end treatment to die sooner. They may be pressuring them to turn off their life support systems. They may be convincing them to refuse food and water until they pass away from lack of sustenance.
Yet our law says concern about such possible manipulation is not enough to override the right of competent patients to choose all of these outcomes. That’s because our legal system actually tries to balance two competing values; protection of the weak and disadvantaged, and promoting individual autonomy.
Yes, we want to make sure that decisions at the end of life really reflect a person’s freely made choices. But we also want people to be able to make such choices; to decide for themselves what “a good death” looks like on their terms.
As such, either Mr Illingworth’s argument proves that our current system of end-of-life decision making is a breach of the social contract that underpins our law, or it is flawed in its inception. Because once you accept that a person has a right to choose treatment options they know will result in their death, then you face all the problems of coercion and determining competence that he raises.
Here we may pause to note that Mr Seymour’s Bill actually imposes far stricter protections for those who would request that a doctor provide them with the medicine to die more quickly than presently exist for those who choose to die by rejecting treatment.
As such, the challenge for Mr Illingworth is this. How does it fatally undermine the social contract on which our law is based for me to ask a doctor for medicine that allows me to die peacefully when I choose, when my telling my doctor “no more food, water or treatment – let me die” does not?
Of course, Mr Illingworth is right that we need to protect the weak and disadvantaged in our society. But Mr Seymour’s bill does this far more extensively than do current legal rules around end of life choices. And it also allows those truly competent people to decide for themselves how they want to die.
And that is something that would improve our law, not undermine it.