Is the proposed change to assisted dying legislation really about denying choice?

Esther Rantzen is one of a number of well-known and well-regarded celebrities who have publicly declared their support for a change in the law on assisted dying. When a celebrity makes a pronouncement, many people stop and take notice even if the celebrity is not making any new arguments. Celebrity is persuasive. Esther Rantzen says that she appreciates all the arguments against assisted dying. Nevertheless, she thinks that people should be given a choice about how and when they want to die. In particular, she wants to spare her family from the painful memories of a bad death. She observes that, after all, we give dogs a painless death. Given the current prohibition on assisted dying under English law she has decided that if her treatment for stage four lung cancer does not improve her condition she may just “buzz off to Zurich”.

Esther Rantzen may say she appreciates the arguments against changing the law, but it seems necessary to reiterate that these are real and compelling arguments. These arguments warn about the dangers that will open up for vulnerable people, and that includes people who are worried about having a bad death. These arguments point to the experience of other legislatures and the serious concerns about putting into place effective safeguards. No legislation allowing for assisted dying has so far been able to contain the slippage from choice of the competent terminally ill, to choice on the grounds of suffering but not terminal illness, including existential suffering, to decisions made on behalf of those who can no longer choose. Real and compelling work has been done to highlight the ways in which there can be good deaths. Good, appropriate palliative care works not only to help those who are dying but also to help the family as bereavement unfolds. And human beings are not dogs or any other pet under the power of their owners. However, the issue of choice and, as in the case of Esther Rantzen, denying choice about how and when death takes place, seems to be a knottier issue. For many it is this tension between individual choice and state control that seems to lie at the heart of the assisted dying debate.

There are people who want to choose assisted dying, yet it is the law, enacted by the state in the 1961 Suicide Act, that makes assisting suicide a criminal act. Suicide itself was decriminalised, not legalised under the Act since parliament recognised that suicide survivors need help not imprisonment. Advocates for a change in the law argue that assisted dying is not suicide. Rather, they claim that assisted dying is giving someone who is imminently dying, that is with less than six months to live, medical help to hasten death. At this point we should observe that the notion of imminently dying is shaky to say the least. When Esther Rantzen declared that she had joined Dignitas, she added that she was looking forward to Christmas 2023, which she had not thought she would live to see after she was diagnosed with terminal cancer the previous January. Putting aside this observation, the argument in favour of assisted dying suggests that the request for medical assistance in dying is not an issue of suffering but an issue of choice and as such the state should not intervene in the life choices of its citizens. The response justifying state intervention often comes back to the role of the state to protect its vulnerable citizens, hence arguments about people feeling a burden or feeling pressurised and therefore being vulnerable. This is also why those who advocate in favour of a change in the law insist that terminally ill and competent people with a settled decision for assisted dying are not vulnerable. Of course, more can be said about vulnerability: after all, if a person is afraid of dying what they perceive will be a bad death, or if they fear losing control of their faculties or if they fear their dying may cause suffering to their loved ones, are these not also signs of vulnerability and pressure? Moreover, those like Esther Rantzen who opt for assisted dying altruistically claim that they are freeing up resources for other younger, fitter people. Does that argument not put pressure on those who do not make a choice for assisted dying? Nevertheless, it may be fruitful to take a longer look at choice in the context of state intervention.

Famously, in his “harm principle” the philosopher John Stuart Mill claimed that the only rationale for exercising power over an individual was to prevent harm being done to others. Whatever we think of this Millian liberty principle, this is what many people do think: as long as there is no harm done to others, I should be free to do what I want. There is no justification for intervening to stop individuals exercising free choice to protect them from harming themselves. Mill gives the example of a dangerous bridge: if a public officer sees someone attempting to cross a bridge that the officer knows to be dangerous and the officer has no opportunity to warn the person, the officer may seize the person and turn the person back. There is no infringement of liberty here because the officer is doing what the person desires, and the person does not desire to fall into the river. However, this assumes that there is no time for a warning, and significantly, that the person does not want to fall into the river. A Millian conception of liberty seems to imply that a public officer can warn of the dangers but should not intervene to stop the person exercising choice even if that choice results in personal harm. Think perhaps of cigarette smoking. Extrapolate that to suicide and it seems that the harm principle does not warrant the government interfering to prevent suicide. However, the World Health Organisation and governments around the world are very much invested in suicide prevention strategies: suicide is a major health crisis; it harms the person concerned, family and friends, and society. Suicide is not inevitable, and every suicide is both an individual tragedy and a terrible loss to society. Unless, it seems, that individual is ill.

While the harm principle has been reduced to the principle that individuals should be free to act as they wish unless their actions cause harm to someone else, this does not seem to describe what in fact advocates for a change in the law are demanding. The request for medical assistance in dying is not about a patient’s choice of action that does not harm another and therefore should not be denied by the state. Again, we may observe here that harm may indeed be caused to physicians who are asked to participate in actions that seem to go against the traditional understanding of medicine to cure but not to kill. Moreover, evidence in countries that allow for physician-assisted suicide and euthanasia indicates that some doctors are becoming less willing to act on the patient’s request for death. Putting aside these observations, the proposed change in the law to allow for assisted dying is a request to allow another person, usually the physician, to harm the individual. Thus, the law against deliberately assisting in the death of another person, even with their consent, is not the intervention of the state to deny choice. It is intervention to prevent harm brought about by another. Of course, this raises the question of whether bringing about an early death with the individual’s consent is a harm. Returning to Mill, the point of the harm principle is to preserve the individual’s liberty. Mill therefore argues that the state should prevent a person even voluntarily being sold into slavery since slavery curtails individual liberty. Apply this to assisted dying, and death even more than slavery, stops the exercise of liberty. This of course is not the same as the harm of removing a gangrenous leg so that the patient will survive.

That being said, is bringing about the early death of someone who is dying with that person’s consent the kind of harm that justifies intervention by the state? Advocates of a change in the law argue that harm caused by the person’s illness far outweighs the harm of death and so an early death minimises harm. However, when it comes to state intervention, the harm of an illness does not figure in the equation: the state is not responsible for feelings of lack of control, suffering, or the choice to remove oneself from the situation. However, the state is responsible for a decision to change the law allowing for the bringing about of the harm of an early death.

Returning again to Mill and his rickety bridge, for Mill responsibility for the upkeep of the bridge is irrelevant in his discussion of risk and freedom. However, as a metaphor for societal responsibility Mill’s bridge may be apposite. Changing the legislation to allow for assisted dying is akin to authorising people to push other people into the river with the express intention that they perish because these people fear taking a rickety bridge over which they have no control. A responsible society would recognise the harm in this action and would moreover keep the bridge in good shape so that people do not risk falling through the gaps through ignorance or negligence. Ensuring that people have confidence that they can cross to the other side safely and with dignity, without recourse to being harmed, is a mark of responsibility.