Patient in hospital bed

On 7th November Lord Falconer’s Assisted Dying Bill will return to the House of Lords for scrutiny in committee.

On Thursday I attended a talk by Falconer on the subject. He said his Bill is deliberately restricted as he himself would not wish to go further. It only applies to terminally ill patients of sound mind with a maximum of six months to live, and they have to make the decision and administer it themselves.

Falconer told us that about 70% of the population think the law needs changing, and the percentage is the same for churchgoers. The medical profession are divided on the subject. The main opposition comes from religious leaders, who however say they object not for spiritual reasons but because of the risk of abuse.

The next day the Church Times carried an article by Nigel Biggar opposing the Bill. Biggar offers three arguments. The first is about the safeguards to ensure that nobody is put under undue pressure to choose an assisted death. He thinks they would not be effective in practice:

Many vulnerable people live, make their choices, and exercise their “autonomy” in an environment that is hostile, not supportive.

His second argument is that the Bill would

enshrine in law the implicit endorsement of the principle that some life is not worth living, and is not to be borne.

Once this principle was accepted, he argues, it would then be reasonable to ask why assisted dying should not be extended to those not capable of administering it themselves, or to those not terminally ill, especially as many of the cases recently publicised by the media would not be covered by the Bill.

Biggar’s third objection really just spells out the point of the second:

Once the principle is established in law that some life is not worth living and may be terminated, political momentum will gather for the extension of eligibility.

Who is right? When we focus on this specific Bill – or indeed any specific Bill – they both are. Falconer’s proposal is so closely restricted that it would not provide relief for a great many people sentenced to intense pain for the rest of their lives. They must continue to suffer, not because they deserve it, but because society cannot agree what to do. On the other hand, some of those who are covered by the Bill may be affected adversely, for the reason Biggar gives. Widen the scope of the Bill and it benefits more of the dying while increasing the risks. Wherever the legislation draws the line, the line is in the wrong place for many people.

In other words, the law is the wrong instrument. The way laws work is that the same wording, once passed by governments, applies to everyone. Laws are supposed to treat everyone the same. Yet every case of a dying person is unique. No law can possibly get it right for everyone.

I come at this as an ethicist, not a lawyer. In each case the right answer needs to be judged on its merits – on the basis of love for the person concerned. The decision should be made by people who know and care for the dying person.

To make this possible the law needs to be changed, to let the decision be made by authorised people who know the patient and the family well enough and have no vested interests. But who should be so authorised? There are good reasons for believing it should be neither the medical staff nor the relatives. Who else is there?

This, as I see it, is the big sticking-point. Reliance on the law implies that we do not think anybody can be trusted to make the decision on someone else’s behalf, unless they are obliged to follow precise rules. What, nobody?

Before we moved to Liverpool Marguerite and I lived in a village of around a thousand people. Some of the inhabitants made it their business to look after the village. Among the things they did would be picking up litter, finding jobs for the unemployed, visiting the sick and organising social events. They knew people. In effect they ran a system, making compassionate decisions for the well-being of the village and its needy individuals. If a decision had to be made about whether someone should be assisted to die, they would be the people to consult.

Humans have evolved to live in communities of around that size, with people like that in them. I do not wish to idealise village life, especially as most villages today are really satellites of city-based economies. However, that village had a system which has no equivalent in the cities where most of us live. City-dwellers may prefer greater anonymity and keep away from people they perceive as interfering busybodies.

Is this the price? Does the greater anonymity in our atomised, individualised society mean that, in our hour of greatest need, there is absolutely nobody who can be trusted to make an informed and compassionate decision about the end of our life?

For some, this is the case. For most it is not. I can think of people I would happily nominate to make the decision for me if I reach that state. The problem is the other way round: nobody wants to be given that responsibility.

A century ago it would have been a different matter. Then, death was a transition to something else. Whatever that something else was, it was possible to talk about it. Now that the dominant narrative is that death is a complete end, nobody wants to talk about it. Death is too spooky. As a result, nobody wants to make the decision about someone else.

Yet these decisions often have to be made. In my view, good decisions will be made more often if, instead of a one-size-fits-all law, people were given the right to nominate one or more people whom they trusted to make the decision on their behalf.

On 7th November Lord Falconer’s Assisted Dying Bill will return to the House of Lords for scrutiny in committee.

On Thursday I attended a talk on the subject by Falconer himself. He said his Bill is deliberately restricted as he himself would not wish to go further. It only applies to terminally ill patients of sound mind with a maximum of six months to live, and they have to make the decision and administer it themselves.

Falconer told us that about 70% of the population think the law needs changing, and the percentage is the same for churchgoers. The medical profession are divided on the subject. The main opposition comes from religious leaders, who however say they object not for spiritual reasons but because of the risk of abuse.

The next day the Church Times carried an article by Nigel Biggar opposing the Bill. Biggar offers three arguments. The first is about the safeguards to ensure that nobody is put under undue pressure to choose an assisted death. He thinks they would not be effective in practice:

Many vulnerable people live, make their choices, and exercise their “autonomy” in an environment that is hostile, not supportive.

His second argument is that the Bill would

enshrine in law the implicit endorsement of the principle that some life is not worth living, and is not to be borne.

Once this principle was accepted, he argues, it would then be reasonable to ask why assisted dying should not be extended to those not capable of administering it themselves, or to those not terminally ill, especially as many of the cases recently publicised by the media would not be covered by the Bill.

Biggar’s third objection really just spells out the point of the second:

Once the principle is established in law that some life is not worth living and may be terminated, political momentum will gather for the extension of eligibility.

Who is right? When we focus on this specific Bill – or indeed any specific Bill – they both are. Falconer’s proposal is so closely restricted that it would not provide relief for a great many people sentenced to intense pain for the rest of their lives. They must continue to suffer, not because they deserve it, but because society cannot agree what to do. On the other hand, some of those who are covered by the Bill may be affected adversely, for the reason Biggar gives. Widen the scope of the Bill and it includes more of the dying while increasing the risks. Wherever the legislation draws the line, the line is in the wrong place for many people.

In other words, the law is the wrong instrument. The way laws work is that the same wording, once passed by governments, applies to everyone. Laws are supposed to treat everyone the same. Yet every case of a dying person is unique. No law can possibly get it right for everyone.

I come at this as an ethicist, not a lawyer. In each case the right answer needs to be judged on its merits – on the basis of love for the person concerned. The decision should be made by people who know and care for the dying person.

To make this possible the law needs to be changed, to let each decision be made by people who know the patient and the family well enough, understand the issues and have no vested interests. But who should that be? There are good reasons for believing it should be neither the medical staff nor the relatives. Who else is there?

This, as I see it, is the big sticking-point. Reliance on the law implies that we do not think anybody can be trusted to make the decision on someone else’s behalf, unless they are obliged to follow precise rules.

What, nobody? Is our society so atomised, so individualised, that in our hour of greatest need there is absolutely nobody we would trust to make an informed and compassionate decision about the end of our life?

For some, there really is nobody. They are a minority. I can think of people I would happily nominate to make the decision for me if I reach that state, and you can probably do so too. I only wish the law would allow us to do so.

The problem is the other way round: nobody wants to be given that responsibility. We avoid thinking about death; and when it comes near, for ourselves or someone else, we are hopelessly unprepared. We do not know how to evaluate the situation, so we do not know what to do.

Death is spooky. A century ago it would have been a different matter. There were not so many ways to keep people alive then, but I think the main difference is that most people believed in life after death. Different people believed in different afterlives, but as long as death was a transition to something else, it was possible to talk about it. Now that the dominant narrative is that death is a complete end, nobody wants to talk about it. So nobody knows what to do when somebody is dying – except to try to keep them alive.

Yet these decisions often have to be made. I suspect that good decisions will be made more often if, instead of a one-size-fits-all law, we were given the right to nominate one or more people whom we trust to make the decision on our behalf. Legal safeguards would still no doubt be needed, but no system will be satisfactory if it does not allow for the fact that every case is unique. If you think this is a bad idea, please submit a comment and explain why.