A Right to Die in Prison?

Frank Van Den Bleeken wants to die.  He is not physically ill, but claims to be suffering from persistent mental anguish, from which death will provide him with some release.  And as a Belgian man, living in Belgium, we might ordinarily expect him to be able to take advantage of that country’s fairly liberal euthanasia laws.  Whereas many of the assisted dying regimes around the world specify that the person who wants to die must be terminally ill to qualify, Belgium has seen several cases in which people have been helped to die for reasons that do boil down to psychological distress: in a couple of fairly well-reported cases, Marc and Eddy Verbessem were deaf twins who feared blindness and sought death on that basis, and Nathan Verhelst sought it in the wake of unsuccessful gender-reassignment surgery.

What makes Van Den Bleeken particularly newsworthy is this: he is a convicted killer and rapist.  According to the CBC, he had argued that “he had no prospect of release since he could not overcome his violent sexual impulses and so he wanted to exercise his right to medically assisted suicide in order to end years of mental anguish”.  It’s not clear whether the anguish came from being in prison, or guilt, or something else.  This might make a difference; I’ll touch on that below.

What should we say about the morality of such a case?

Well, the first thing we need to do is to ask whether this is actually anything special – special as assisted dying requests go, that is – about this case, or whether there’s an extra dimension at work.  I think that there is an extra dimension, though what kind of difference it makes in the grand scheme is something about which I’m much less certain.  To get things moving, though, I think that there’s a handful of other questions that we should be asking.  One of these is whether assisted dying is permissible to begin with.  I’m going to leave that to one side, though: this is partly because Belgian legislators have decided that, under certain conditions, it is; a second reason is that if we’re convinced that it isn’t, the other questions we might raise become moot – and I think that they’re too interesting to leave in that state; and a third reason is that – again, for reasons that I don’t need to elaborate here – I don’t have serious moral qualms about the Belgian law.

So, having taken as read that assisted dying is permissible at least sometimes, we have to ask ourselves what the circumstances of its permissibility are.  Does mental anguish count?  Here, I can’t see why it shouldn’t.  For sure, there’s always going to be a concern that being sufficiently upset about something might distort a person’s decisionmaking capacity, such that we might have reasons not to treat their requests as authentic – and we might be at risk of making a terrible mistake if we help bring about the death of someone who doesn’t really want to die.  But that doesn’t have to be the case: a person can make “authentic” decisions about their life in spite of distress.  More, the arguments about physical distress seem to me to rely – to at least some extent – on a notion of psychological distress anyway.  After all, a person who was terminally ill but unmoved by that fact would – presumably – be less likely to seek assistance than someone for whom it did make some kind of emotional impact.  There’s likely to be more to it in real life; but I think that, all the same, some kind of psychological distress is reasonably likely to be found in people who seek assistance to die for ostensibly physical reasons.  That being the case, it’s not clear why psychological distress mightn’t be a reason to seek assistance in its own right.

All of which is a rather about-the-houses way of saying that, if a person seeks assistance to die, and is motivated by a desire to end psychological distress, then that need not be any more morally troubling than seeking assistance to die for any other reason.

What might make a difference is the reason why a person has become distressed.  Imagine that a prison inmate gets cancer, and that it is terminal.  In this case, his entitlement to assistance to die would not obviously be affected by the fact that he is a criminal – subject to a point I’ll consider in a moment.  Presumably, the state has some kind of duty of care towards prisoners, so that while suffering caused by being imprisoned is tolerated to some degree (even if it’s something we’d want to avoid if possible), suffering that is incurred while in prison is seen as no different from suffering felt by anyone else.  However, Van Den Bleeken’s suffering seems to be different from that: it seems to come from the mere fact that he is in prison with little to no scope for release.  In that case, mightn’t it be the case that to allow him to seek assistance would be to allow him to escape justice altogether?  (This is related to the question of whether there’s a tariff of suffering that some of the worst inmates ought to be expected to pay, which was considered memorably by Rebecca here last year.)  On the other hand, given his sadistic past, it might be hard to suppress entirely the feeling that Van Den Bleeken’s death would be no great loss, and that we shouldn’t be too chary about facilitating it.

Except…  Except that one aspect of his arguments is that the state has been failing him by not providing him with adequate therapy in respect of his behaviour.  Now, when he says that people who commit sexual crimes should be helped, and that locking them up helps neither society, nor the victim, nor the perpetrator, this might be self-serving.  But he might have a point, too.

So here’s yet another question that his case raises: is a propensity to behave sadistically itself a pathology that can and should be treated?  I think I know how certain contributors to this blog would respond to that (see the closing line here, for example); and it’s a question for another day.  But if we’re inclined to answer in the affirmative, then Van Den Bleeken might actually have been wronged by being put into a prison and criminalised for a pathology rather than held in a secure hospital, and seriously wronged if he sees seeking his own death as the best response.  If that’s right, then the authorities would arguably be complicit in a wrong by allowing him too-easy access to putatively assisted dying – it wouldn’t, in one sense, be assisted at all, so much as encouraged.

Even if we dismiss that argument, none of what I’ve argued above implies that a person has the right to have their death facilitated; and I’m not aware of any legal system in the world that would make that move.  The right to die, or the right to be killed, is about permitting Smith to assist in Jones’ death, subject to certain conditions being met; it doesn’t mean that Jones has a right to Smith’s assistance – any more than Smith having the right to allow Jones to be shot from Smith’s circus cannon means that Jones is entitled to demand the loan of such equipment from anyone.  All the same: if suffering is genuine, then that would seem to be something we ought to take seriously.  If it’s caused by being mistreated, we ought to end it by ending the mistreatment; if it isn’t cause by being mistreated, then it’s still not without moral significance, even if we’re prepared to tolerate it in the end.

So the remaining question is this: in general, does the Belgian state, represented by the prison authorities, have a duty to allow its inmates to seek assisted dying – or even the right?

Answering this seems to force us back to the duty of care point.  If a person is suffering to the extent that death – or the permanent removal of consciousness, which’d amount to the same thing from the person’s point of view – is a reasonable option, then might his prisoner have an obligation to consider that option as a way of discharging the duty?  The ruling here would seem to indicate that the Belgian courts think that the answer is yes.