The state should not be the god of death
Legalising assisted suicide would allow officialdom to override poorly individuals' moral autonomy.
The assisted-suicide debate tends to focus on the issue of whether a particular individual should or shouldn’t be allowed assistance to kill himself. This focus overlooks the equally important question of who should decide when an individual dies. Should it be the individuals involved, acting as morally autonomous agents, or should it be an independent third party such as a court? In giving their judgment on assisted suicide last week, several UK Supreme Court judges suggested it should be a court. In other words, within the Supreme Court’s judgment there is a disturbing call to abrogate an individual’s moral autonomy by replacing it with the state regulation of death.
Lady Hale noted that ‘it would not be beyond the wit of a legal system to devise a process for identifying those people, those few people, who should be allowed help to end their own lives’. She, together with Lords Neuberger and Wilson, expressed the view that ‘it should be a High Court judge who decides the issue’, and that ‘no assistance could be given to a person who wishes to die unless and until a judge of the High Court has been satisfied that his wish to do so was voluntary, clear, settled and informed’.
In Assisted Suicide: The Liberal, Humanist Case Against Legalisation, Kevin Yuill predicted the outcome that several members of the Supreme Court have now suggested. He notes how ‘legalising assisted suicide inevitably sets up a tribunal of doctors and lawyers – state representatives – to objectively decide whether our lives are worth living or not’. Yuill’s insight comes from his recognition that the campaign to legalise assisted suicide has not been prepared to recognise the moral right of individuals to act autonomously, independently of oversight by the state.
In legal proceedings the moral autonomy of individuals is recognised by asking whether the individual has capacity. An adult is capacitous or competent if he has the ability to make decisions for himself. Capacity is concerned with an ability to make decisions; it has nothing to do with making good or bad decisions. In other words, the test of capacity ensures that the state is not concerned with the reasonableness or morality of a decision – that is the individual’s right and responsibility.
In 1993, Lord Goff forcefully defended the principle of moral autonomy. He noted that ‘it is established that the principle of self-determination requires that respect must be given to the wishes of the patient, so that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so’. Legal acceptance of this principle of moral autonomy restrained the court’s ability to regulate people’s lives. The court’s powers were in practice ousted if the adult had the ability to make decisions for himself. This freedom to decide carried with it, as all freedoms must, the freedom to make good and bad decisions. Hence Lord Goff’s reference to the freedom to make an unreasonable decision even if it resulted in the individual’s death.
The suggestion by the Supreme Court that a High Court judge should be able to give a red or green light to a competent adult’s decision to end his life with assistance means abrogating the individual’s moral autonomy. The suggestion means that the decision of a competent adult would cease to be sovereign; his decision would become merely a staging post on the way to approval or disapproval by the state.
An adult who is vested with moral autonomy is able to resist the court’s writ. An adult who is ‘vulnerable’ is not. Moreover, in the context of assisted suicide, a court could readily interpret any decision to commit suicide as evidence of vulnerability. Take this one step further, and the court would effectively be required to vet every potential assisted suicide. Lord Neuberger has no difficulty making this step when he says that ‘the risks to the weak and vulnerable could be eliminated or reduced to an acceptable level, if no assistance could be given to a person who wishes to die unless and until a judge of the High Court has been satisfied that his wish to do so was voluntary, clear, settled and informed’.
If a court had the jurisdiction suggested by several members of the Supreme Court, then how intrusive would it be? According to Lord Wilson, ‘the court might wish to investigate’ no less than 18 factors. These factors ranged from the claimant’s ‘reasons for wishing to commit suicide’ to the ‘motive of [an assister] in proposing to give assistance’. Lord Wilson noted how, in order to address these 18 factors, ‘a court might wish to hear evidence from the claimant himself; from members of his family; from his friends; from his medical practitioner and other professionals involved in his care; and no doubt also from a doctor and/or psychiatrist and/or other medical expert introduced into the case in order to report to the court’.
Lord Wilson was perceptive in drawing out the forensic implications of his policy proposal. Forensic implications often sound benign. But it’s worth looking at what these forensic implications would actually mean from the perspective of a person seeking to end his life, a person who will invariably be in a state of considerable distress.
Take the recently reported case of Georgina Roberts, 59, who assisted her elderly parents to die. On her father’s instructions she ordered a lethal drug over the internet, prepared it and gave it to her parents. Her parents, David Arnold, 82, a retired doctor, and his wife Elizabeth, 85, decided to end their lives when he became a bed-ridden amputee and she was diagnosed with dementia and Alzheimer’s disease. They had tried to kill themselves a year or so earlier but failed because the painkillers they took were out of date. Roberts asked her parents if they were sure today was the day. They said it was, but they wanted to watch the Proms on TV first. Roberts told an inquest that ‘my actions were motivated entirely by compassion and love for my mother and father’. The Crown Prosecution Service decided not to prosecute her for the offence of assisting a suicide.
If the Supreme Court’s proposals had been in place, the Roberts case would have unfolded differently. The parents’ decision to take their lives could only be acted on with the state’s consent. Instead of justifying their decision to themselves, their family and their friends, the parents would have to justify their decision to a judge. The parents’ inquisitors wouldn’t just be their loved ones; they would be lawyers who knew nothing about them other than what they’d read in witness statements or heard from the witness box. In order to get a green light from the state, the private thought processes of Roberts and her parents would be subject to courtroom scrutiny. The family’s evidence, addressing Lord Wilson’s 18 factors, would be set out in witness statements, analysed by lawyers, cross-examined by barristers and then ruled on by a High Court judge. And what if consent was refused? The couple would probably have been forcibly put into separate care homes, as the family had feared after the parents’ first failed suicide attempt, which they deliberately hid from the authorities as a result.
Lady Hale does not disguise her preference for a courtroom process, or similar, when she argues that these life-and-death decisions should be made by a body ‘sufficiently neutral and independent of anyone involved with the applicant, and skilled at assessing evidence and competing arguments’. But Yuill is right to argue that ‘only the individual (and perhaps those who know him intimately) has the perspective necessary to decide whether or not to take his own life’.
If moral autonomy is replaced with judicial authority then privacy will yield to courtroom scrutiny; dignity will be replaced with indignity; compassion will be mangled by legal precedent; and love will be supplanted by law.
The columnist Matthew Parris, like Yuill, has recognised the dangers of a campaign to legalise assisted suicide. Writing in The Times, he explained his reservation: ‘An Assisted Suicide Act could be the beginning of a creep towards the state regulation of death.’ The Supreme Court’s judgment has shown Parris and Yuill to be prescient.
Moral autonomy is the most basic of all liberties. Without the right to make decisions about our lives, and without the liberty to act on those decisions, we cannot be free. Moral autonomy is the bulwark that keeps us free. If the state is allowed to regulate death, what next? Regulation of the right to live? As Parris argued: ‘From Authority to Die, it may be a large practical step to Authority to Live; but not, I believe, quite such a large philosophical step as some may suppose – especially where that prolonged life depends utterly upon substantial state funds which, channelled differently, could save many other lives.’
The Supreme Court’s judgment indicates where a law may go when the importance of moral autonomy is overlooked. The current law may have its faults in making it a criminal offence for anyone to assist with a suicide. But these faults are in practice overcome with the appropriate exercise of discretion by the Crown Prosecution Service. Those who are motivated by love and compassion, like Georgina Roberts, are not prosecuted. Law reformers who combine a disregard for practical reality with a disrespect for moral autonomy are in danger of overseeing the introduction of something far worse: the state regulation of death.
Jon Holbrook is a barrister based in London. He is shortlisted in the Legal Journalism category by the Halsbury Legal Awards 2014. Follow him on twitter: @JonHolb