Assisted Dying and Protecting the Vulnerable

Sadly, though unsurprisingly, Rob Marris’s assisted dying bill has been rejected overwhelmingly by British MPs.

The most widely accepted argument in favour of rejecting the bill seems to have been that doing so would protect the vulnerable.

Which vulnerable people did the proponents of this argument have in mind? Those who would feel under pressure to request assisted dying so as to relieve the burden on their family. These people fall into two categories.

The first would be those who are feeling moral pressure, but not actually being pressured in any way by their family. It would of course be up to the doctors involved in the case to explain to the patient that there is no general expectation of such sacrifice in our society, and also to point out that the patient’s family would probably not be in favour of any such sacrifice. This may of course be insufficient to persuade the patient. But we do not elsewhere protect even the vulnerable from the consequences of moral decisions we think mistaken. Consider, for example, wealth-transfers. Some vulnerable people surrender large amounts of money to their relatives, and suffer a drop in their own well-being as a consequence, believing that this is what they ought to do. If we disagree, as I presume many of us often will, do we think a law justifying all such transfers by those who are very old or ill should be forbidden?

But what if the patient believes that, though assisted dying isn’t her duty, it would nevertheless be a good thing to do? Well, why should such a patient not be permitted to make that sacrifice? It is, as Mill might put it, a choice within her ‘private sphere’, and others are not entitled to interfere with it. Further, if the patient recognizes that her sacrifice is supererogatory, it would be odd for her to regret the fact that she has been given the opportunity. After all, there is nothing blameworthy in not taking it.

Nevertheless, it might be said, she is making herself worse off. The question here is not whether to allow a person to commit assisted suicide in a system where it is permitted, but whether to set up such a system in the first place. If we are concerned about patients’ well-being, especially when they are vulnerable, we should make certain choices unavailable.

This also seems somewhat paternalistic. Consider wealth-transfers again. Should we make them impossible for the vulnerable, when this could make them worse off? And if so, why only for the vulnerable? Any of us could be put under pressure by our relatives or others. If people are competent, should we not allow them to make their own decisions about the shape and direction of their own lives, even if we think those decisions will sometimes be mistaken?

What about those who are actually being pressured by others? Here it would be especially important for the two doctors and the judge involved to assure themselves that the preference expressed by the patient was competent and uncoerced. There might of course be the odd patient who was so good at dissembling that she could pull the wool over the eyes of the doctors and the judge. Again, however, this possibility is something we are inclined to allow elsewhere so as to promote liberty and autonomy in general. Consider wealth-transfers again.

Data from places where assisted dying has been legalized, such as Oregon, suggest that the fears of these opponents of the bill are anyway largely unjustified. It is a matter of numbers. If assisted dying were legalized, there may be one or two people who would be put under unreasonable and unacceptable pressure by their relatives to end their lives, just as now there are some people put under such pressure to transfer their wealth. But the most significant vulnerability in many of the terminally ill is that to agonizing, chronic, and unrelievable pain. Because of the MPs who opposed the bill, thousands of people in the UK will have to continue to bear this pain against their will. For these MPs to describe their vote as protecting the vulnerable is grotesque.

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26 Responses to Assisted Dying and Protecting the Vulnerable

  • Milene C. Tonetto says:

    Excellent post, Roger! As you know, I am working on this subject and I was in fact surprised with MP’s decision. What I do not understand is why 82% of Britons support assisted dying and even so the Bill was rejected. How do you explain that?

  • Roger Crisp says:

    Thanks, Milene. Glad you like the post. One question is why our MPs think it OK not to follow public opinion. Here we have to remember Burke’s letter to the electors of Bristol — they are elected to use their own judgement. Sometimes I think that is a good thing — as e.g. with highly emotive issues like capital punishment. But I suppose one might have expected them in this case to line up with public opinion and I suspect one reason they didn’t is that they were lining up with the PM. There’s also probably some status quo bias in the mix. They think that they’d be more accountable for any change than for leaving things as they are.

    • Hedonic Treader says:

      “Here we have to remember Burke’s letter to the electors of Bristol — they are elected to use their own judgement. Sometimes I think that is a good thing — as e.g. with highly emotive issues like capital punishment.”

      This assumes politicians will be less emotive, less biased, and/or more ethical than the majority of the population. Even if we believed this, it comes with agency issues: The individual MP has no incentive to do what would be best for most others, and in fact it is much easier to corrupt a couple dozen individuals than to convince millions to act against their own best interests.

  • Keith Tayler says:

    You say ‘For these MPs to describe their vote as protecting the vulnerable is grotesque.’ Do really think their overwhelming vote to protect the vulnerable is ‘grotesque’? Surely you cannot seriously believe they should accept your transfer of wealth argument. There is statutory and contract law protection against such skullduggery, and if that fails, especially in the case of the vulnerable and elderly, it is usually possible for the aggrieved party to have the situation corrected. Obviously it is not possible to return life to someone who has been pressurised into assisted suicide.

    I am certainly in favour of people having control over their lives and deaths, but I am not convinced that the pro-assisted suicide lobbyists have fully considered how it would work in the UK in an organization like the NHS. Having worked a few years for the NHS in psychogeriatrics I have some deep seated doubts about assisted suicide. To date I have not had these doubts properly addressed by ethicists or anyone else, and if I was an MP I would have had to be, as you put it, ‘grotesque’.

  • Roger Crisp says:

    Thanks, Keith. I am assuming that the new legislation would allow the same level of protection for skullduggery in the assisted dying case. All that I need for my analogy is that some people subjected to it in the case of their wealth are never compensated, which is of course the case.

    There may of course be problems with institutionalizing assisted dying in the NHS, but there are models in several other countries which might provide solutions.

  • Keith Tayler says:

    Even with all safeguards there are still quite a few vulnerable people who have their money snatched away from them by their family or indeed the medical professionals. As I say, it is always possible to correct this but unfortunately there are far too many cases where this never happens. You seem to think that ‘there may be one or two people who would be put under unreasonable and unacceptable pressure by their relatives to end their lives.’ If your analogy holds I think you might have to increase this to one or two thousand people. As well as the relatives, you must also include the medics and the bean counters of the NHS who are very experienced at putting people under unreasonable and unacceptable pressure. The NHS and medical professions would have to undergo massive reforms to create an environment where assisted suicide might be workable. This would require finding solutions to staff objections to assisted suicide that the pro-lobbyists rarely acknowledge or are claimed to be simply trumped by the “right” to die. These issues might be resolvable, but so far I have yet to find anyone who has addressed the detail of the problem (believe me I have tried to find them). ‘Models in several other countries that might provide solutions’ are no solutions. Assuming we could find some, the problem is how will they survive their first encounter with the NHS and Social Services?

    • Hedonic Treader says:

      The root cause of these problems are socialistic health care systems and government overreach.

      If people weren’t coerced to pay for other people’s care, there would be no “pressure” to suicide, because no one would benefit from it.

      So the negative consequences of one coercion are used as an excuse to add more coercion. Not only can’t people own their own money, now they can’t even own their very own lives, with the consequence that they are physically and mentally forced to experience pain against their will.

      And they call that bioethics.

      • Keith Tayler says:

        The pressures are just as great under a private health system where an individual might not have the money for long-term care and fear being dumped into the hopelessly underfunded state system. Health care insurers will find any small print to dump patients and do not always provide long-term care. (Although I do not agree with your ‘coercion’ argument, it is not resolved by a private insurance system.) I agree that there are structural and financial problems with socialised health care that would need addressing well before any move to assisted suicide. However, adopting a vastly more expensive private health system with all the inequalities of care it produces is not answer.

        • Hedonic Treader says:

          Equality isn’t everything. Would you also torture everybody to make sure they are not inequal to the chronic pain patients? Of course not.

          If you can’t remove the financial pressure from the reality of care, you still don’t have a right to deny people their autonomy.

          How does an outright ban on adequate suicide methods not qualify as “pressure”? It’s hard to see a stronger form of coercion, short of actively inflicting pain on them on purpose.

          • Keith Tayler says:

            ‘Autonomy’ is a much misunderstood concept. Your argument, like that of bioethicists, seems to stop short at the autonomy and rights stage. Just because I want to end my life does not mean I can demand that there should be a “killing service” made available by my medical care system – be it private or state provided. I have a right to kill myself but I do not have a right to demand that others assist me or that I can take my life without consideration for others. There may be a way of reaching a consensus, but so far the pro-assisted suicide lobby show few signs of seriously addressing these complex issues and seem content to remain stuck in their autonomy and rights trenches hurling abuse at everyone else including those seeking a consensus.

            • Hedonic Treader says:

              Just because I want to end my life does not mean I can demand that there should be a “killing service” made available by my medical care system – be it private or state provided.

              I don’t doubt your personal sincerity, but this rhetoric is both common and misleading. I would say it is often used in deceitful ways.

              The reason is simple: The pro-choice position doesn’t demand that a killing service be made available by people who do not wish to do so. It merely demands the omission of state violence which actively suppresses such a service by people who are willing to provide it. And note that “service” here includes simple things like prescriptions and sale of a controlled substance, which is illegal only because of active suppression by the state in the first place.

              You don’t get to play the active vs. passive framing card while continuous active police action is the very cause of the lack of practical options.

            • Hedonic Treader says:

              I do not have a right to demand that others assist me or that I can take my life without consideration for others.

              I want to add a remark about the “considerations for others” part. The idea that suicide is selfish, and selfish decisions not to suffer are apparently immoral, is often used as an argument against assisted suicide.

              But many aspects are in fact not selfish. For example, we might want to save financial costs or being a burden on others. But here, suddenly the framing is inverted: In these cases, “concern for others” is used as a proxy for “risk of social pressure”. After all, if others benefit from my suicide, then maybe they will pressure me into suicide.

              Concern for others seems to be only a good thing if it works against assisted suicide, but actually a bad thing when it works for it.

              Perhaps one might argue that the protection of (pre-existing) human life trumps every other concern. But in that case, consider organ donations. I would be willing to accept professional euthanasia combined with the donations of my organs. This would certainly safe at least one (pre-existing) human life, perhaps more.

              So what is left? Merely the instinct that killing a person is bad, even when done by the person himself.

              • Keith Tayler says:

                Briefly picking up some of your points:

                As I have said, I accept that people should be free to take their own lives (mental health problems may mean this liberty needs to be restricted). It may be possible to resolve the problem of moving from a hospital or nursing home to a dedicated place for assisted suicide, but we should not underestimate the difficulties. Similarly, providing DIY lethal drug kits is not easy because they could only be prescribed after considerable input by medics and others assisting in the suicide. Obviously protecting people from being placed under pressure to take their lives is the issue that might make assisted suicide unworkable. I do not wish to use this concern because I believe assisted suicide is per se unethical. Assisted suicide is ethical under certain conditions. What we need to do is agree the conditions and see if they are attainable. Without going into the rights and wrongs of socialised health care, I am not convinced that the NHS and social services are anywhere near providing these conditions.

  • John Scott says:

    Opponents of right of to the terminally ill to commit assisted suicide argue that this practice should be illegal in order to protect the vulnerable. They argue we should do this because we are a caring society. Provided we really do care for and cherish the vulnerable, in practice rather than simply talking about doing so, then the vulnerable should feel under no pressure from social norms to commit assisted suicide even if the terminally ill could do so. If we ban assisted suicide for the terminally ill in these circumstances then we have restricted freedom in our society because we under a false illusion. If however we do not care for and cherish the vulnerable, but nonetheless insist on banning assisted suicide because of the harm that might come to them, then we might rightly be accused of hypocrisy. I repeat this argument in greater detail at wooler.scottus.

  • jonathan herring says:

    Roger you say “But we do not elsewhere protect even the vulnerable from the consequences of moral decisions we think mistaken”. But we do. The Government has a very substantial suicide prevention strategy, in which millions is invested. Many charitable groups such as the Samaritans work to persuade vulnerable people from committing suicide. The courts have recognised duties of care on hospitals and prisons to take reasonable steps to prevent vulnerable patients and inmates from committing suicide or self harm. Are you opposed to these? I am not saying that the current law does not need reform, but that does not need we need to abandon our duties to the suicidal.

    • Roger Crisp says:

      Thx Jonathan. You’re right, of course. I was being too elliptical – I was referring to paternalistic or coercive protection.

      • jonathan herring says:

        Not quite sure I follow. The law restricting how many painkillers can be sold in a pack at a pharmacist is part of the suicide prevention programme and is paternalistic protection, I assume. Similarly the law requiring hospitals and prisoners to take reasonable steps to prevent a suicidal person killing themselves could require a degree of coercive protection. It seems a degree of paternalism or coercion on preventing suicide is appropriate. I am not convinced those arguments are enough to justify the current law, but the protection of the suicidal is a legitimate concern. You must not forget that looking at those who kill themselves only a tiny number are those who do not wish to be burden at the end of life.

        • Roger Crisp says:

          Thx Jonathan. I am thinking of paternalism as interference with a person’s autonomous and competent decisions for their own good. I take it that there’s a non-paternalistic justification for the painkiller legislation — that those who are suicidal are not in a position to make such decisions. As a matter of fact, I think that non-terminally-ill people ought to be able to get around this legislation in certain circumstances, but that’s another matter.

  • Stephen Barrie says:

    Sadly, though unsurprisingly, many in favour of the Marris Bill still fail to see that in endorsing suicide and in providing a medical mechanism for it, some people would be put under undue and novel pressure to end their lives.

    As Dan Hitchens put it in the run-up to the debate in parliament: “Millions of people, some very occasionally, some for years on end, struggle with the thought that they are no use to anybody and would be better off dead. If the law has said ‘no’ to that impulse, it has been in order to assert hope in the face of despair. Assisted suicide says a big indiscriminate ‘yes’ to people’s despair – and it cannot choose which people will hear that ‘yes’ loudest.”

    Policy that protects some (or indeed many), at the cost of limiting others’ freedom to make their own decisions is bound to face the charge of paternalism. Wealth transfer is an interesting but very limited example. Our libertarian impulses are very strong when it comes to how people spend their money, but in other areas these intuitions are not so strong. Laws against speeding restrict the decisions of some in order to protect vulnerable road users and pedestrians. We might call this paternalistic, but it seems more than warranted, even is some believe they have good reasons to break the limit.

    In terms of the impact of assisted dying on society, David Velleman provides a better analogy. Consider a society in which personal honour is a prized value and insult is widely held to be a grievous offence. Should dueling be legalised or at least legally tolerated (as it has been in some societies)? If the argument in favour is just that the state should not get involved in the free decisions of competent citizens, then we have missed the point of the laws against dueling:

    “What makes it rational for someone to throw down or pick up a gauntlet may be the social costs of choosing not to, costs that result from failing to duel only if one fails to duel by choice. Such costs disappear if the choice of duelling can be removed. By eliminating the option of duelling (if we can), we eliminate the reasons that make it rational for people to duel in most cases” J. David Velleman from “Against the Right to Die”.

    This is a situation where more choice does not make people more free, because new pressures and influences are brought to bear on a decision that did not previously need to be taken. In a culture that values productivity and autonomy so highly, and that (still) marginalises the elderly and disabled, there are many spurious reasons standing by to exert rational force if the choice of assisted suicide is on the table.

    p.s. Numbers do matter, and the claims about the ‘one or two’ who might be pressured and thousands who might be helped doesn’t seem to be much more than rhetoric and guesswork. The data from Oregon is not ‘reassuring’: http://www.bioethics.org.uk/evidenceguide.html (disclaimer, it’s authored by my colleague) is an annotated bibliography that surveys the figures and scholarship around a few vulnerable groups.

  • Roger Crisp says:

    Thanks, Stephen. Marris was of course not proposing that those who are depressed be given the option of assisted suicide. Laws against speeding aren’t paternalistic — they are to prevent drivers harming others. The duelling analogy is faulty, since duelling involves one person threatening another and offering a choice between possible death or social costs. Do I anywhere claim that only one or two might be pressured? I claim that the evidence suggests that there is no reason to think that the number put under unreasonable and unacceptable pressure will be high. The evidence you cite does say that people are concerned about being a burden to others. I can’t see what’s wrong with that. One of the reasons I myself would like the option of assisted suicide is so as not to constitute such a burden, and I find it objectionable that the law may coerce me into being a possible burden.

    • Keith Tayler says:

      I thought I had finished with this but I cannot let this go by. You say, ‘Do I anywhere claim that only one or two might be pressured?’ Yes you do in the last paragraph of your post which I pointed out in my second post. I do not accept the research that claims the number that would be put under pressure would not be high in the UK, because obviously the research was not done in the UK and we cannot simply scale up studies that have been done in other in counties were assisted suicide (AS) is legal and apply them to the UK. Indeed, as the paper and research Stephen cites shows, the research by no means supports the use of AS. Of course it is possible to present research that is more favourable, but where there is conflicting research and interpretation of it, we cannot simple claim, as you do, ‘…that the evidence suggests that there is no reason to think that the number put under unreasonable and unacceptable pressure will be high.’ The evidence does not suggest this, not least because there is no accepted figure/percentage for ‘high’. (As with wrongful conviction, one might be too high for some people.)

      It is all too easy for the chronically ill, elderly, disabled, bereaved, unemployed and those with mental health problems to believe they are a burden. Some of these may be offered AS and may come under pressure to agree. You do not want to be a burden and believe the law is coercing you into being a burden. It is not possible to fully explore this issue her; but firstly you might consider that you are mistaken in this belief? I have met a great number of people that have been mistaken in the belief that they are a burden. I have also witnessed how relatives, friends, the health service, the state and society make people believe they are a burden and unwanted. Now of course there is considerable philosophical mileage to be had out of the notion ‘mistaken belief’, but the route is no shorter or easier if we try to understand how and why we believe we are a “burden” (this must include why we so easily use such a pejorative word to describe our care by others). When you say, ‘The evidence you [Stephen] cite does say that people are concerned about being a burden to others. I can’t see what’s wrong with that,’ do you not think the word “burden” is extremely weighted. Difficult not to, so it is obviously very easy to exert pressure if we do not stop and think how our words can be used.

      At the present time, I believe, the harm the law does you by not offering you AS is less than the harm an AS law would do to those that might mistakenly believe they were a burden or could be quickly pressurised into believing they were.

      • Roger Crisp says:

        Thx Keith. Just to clarify: my claim was not about whether people might come under pressure from relatives, but whether they might come under unreasonable pressure. (I suppose one might think that any pressure is unreasonable. I don’t, since I think sometimes such pressure might be mild and benevolent — for example, a case in which a person in terrible pain says she wishes to die but also believes it would be wrong for her to upset her close relatives by seeking assistance.) But anyway as far as I know the evidence of widespread pressure of any kind is weak. I could be wrong and if so I’d be grateful to be put right. I think it’s quite reasonable to generalize from what’s happened in other countries, unless some relevant difference is identified between relatives in those countries and relatives here. I find it very hard to think what that might be. I take your analogy about wrongful conviction, but of course the implications of that position are highly counter-intuitive (e.g. that we should cease the practice of judicial punishment). I take your point also about the word ‘burden’. That is usually understood subjectively, so that I am a burden if I am felt to be a burden by others. But I can imagine a situation in which I believe that the lives of e.g. my children would go better if I died, especially if the quality of my life was low or negative. I would like to be able to act on that belief.

  • David Albert Jones says:

    If I may, I think that it mischaracterization of duelling to say that it “involves one person threatening another and offering a choice between possible death or social costs”. It may be in a particular instance that the convention allows someone to threaten another with a choice of death or social costs, but the reason that the convention has been supported at various periods of history is surely because of the idea of a mutual case in which duellists freely and voluntarily forgo the protection of the law (against deliberate killing) for the sake of being allowed to attempt to kill another. In one sense only one of the duellists will be satisfied (the one who wins) as neither desires to die (though duelling may also allow a form of socially acceptable suicide – but this again is not the point of the convention). In another sense both duellists may have their preference satisfied by having the opportunity represented by the convention of duelling, and otherwise both might be frustrated that there was no way for “honour” to be satisfied. As with “assisted dying” it is not so much the death as the opportunity that is presented as the object of rational desire. Indeed it is often claimed that the legal opportunity for “assisted dying” could lead to a reduction in actual suicides (though in fact the available evidence does not bear this out). The analogy may have more to it than it first seems. In both cases it there is a desire for the opportunity voluntarily to sacrifice protection of one’s life, in both cases this is confronted with concern that, in the real world, this convention will not be limited to the ideal voluntary case.

    I would not have started with the duelling analogy, which is culturally very far from us and requires a great deal of moral imagination to recognise why it was once thought desirable. I think one should start with the greatest problems facing our own society. It seems to me the key challenges in healthcare relate to the integration of health and social care in the support of several million patients with complex needs (especially the dependent elderly) at a time of resource constraints. These challenges are made more difficult by widespread discrimination and abuse of older and vulnerable adults, as detailed in a number of recent reports. Added to this is the challenge to extend the best palliative care beyond the confines of the few who die in hospices to the majority of the 500,000 deaths a year in this country. It is also worth mentioning the unrecognised problem of suicide among older people and people with disabilities. Suicide prevention tends to focus on young people, at least in the popular imagination. Without minimising this concern, it should be recognised that those most vulnerable to suicide are men over 65, especially those who are socially isolated and have health problems.

    I agree that “the most significant vulnerability in many of the terminally ill is that to agonizing, chronic, and unrelieved pain” (to call this pain “unrelievable” is to beg the question and in many cases may be self-fulfilling). Arguably the greatest obstacle to relieving this pain is the problem of lack of access to adequate health and social care (including palliative care). Those who advocate “assisted dying” maintain that promoting this as a legal option will not adversely affect access to care that most people need (and currently do not receive). Those who are most involved in palliative care and those involved in fighting against cuts in disability benefit are generally not so sanguine and nor am I. I also think there is good reason (a priori and empirical a posteriori) to think that legalising assisted suicide encourages suicide more generally (both unassisted and assisted).

    These considerations make me think there may be another way in which discussion of “assisted dying” is analogous to discussion of the ethics of duelling. It is discussion of a practice that is of concern to an elite and does not touch the needs of the majority who are dependent on state provision of health and social care and who are extremely vulnerable to being regarded (by themselves of by others) as a “burden” to society, rather than as full and rightful citizens for whom society exists. The right to think of oneself as a “burden” is right to create a category which, logically, will be applicable to others and which will, in some way or other, be applied to others.

    • Roger Crisp says:

      Thx David. That is a fair point about the analogy with duelling: that both cases involve the worry that the convention won’t be limited to the voluntary. I’m allowing that there may be some cases of unacceptable pressure, but claiming that this is an acceptable cost — especially if there are strong safeguards in place, as there would have been in Marris’s system. I’m not convinved it is worth the cost in the duelling case. Imagine a different system of duelling, however, in which challenges to a duel are issued in confidence to some 3rd party, who will inform the challengers only if they have both challenged each other. (There might be a need for further safeguards and it might be required e.g. that neither of the challengers have dependent children.) It could plausibly be said to be paternalistic to ban any such system.

      As I said to Keith above, I think I should avoid the term ‘burden’.

      You mention some serious bad consequences concerning funding for palliative care, etc. If there is evidence for that elsewhere, then this would worry me. As you say, however, it would be only a minority who went for assisted dying, so the risk here might not be great.

  • Keith Tayler says:

    I think we are going around in circles. The evidence from other countries is not conclusive in any direction. There is a very real problem of scale between this country and much small countries and US states. There is clear evidence that the majority of medical professional in the UK are opposed to AS, and at least some of this opposition stems from their experience of the UK with all its unique staffing conditions, climate of secrecy and byzantine power structures. Couple that with governments that have kept areas like psychogeriatrics unfunded for decades and are faced with massive demographic change for which they are not planning and you have a pretty toxic environment which is, I believe, unsuitable for AS. I do not follow the ‘use is its meaning’ point you are making about ‘burden’. You are not a burden merely because others think you are a burden. You might agree with them and think you are burden, but it is this “thinking” that is dangerous in a system where AS is legalized because people are easily swayed by how others who incorrectly define them. Obviously there are situations where someone can reasonably assess that there death would greatly improve the lives of others, but we must be very circumspect when assessing these situations (this includes when people go off to war to lay down their lives for others).

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