by Alberto Giubilini, Uehiro Oxford Institute, University of Oxford
The bill
This Friday, 29th of November, Members of Parliament will vote on the Terminally Ill Adults (End of Life) Bill, which would legally allow people in England and Wales to obtain medical assistance in dying (MAiD). To be eligible, people would need to:
- be over 18 and live in England and Wales, and have been registered with a GP for at least 12 months
- have the mental capacity to make the choice and be deemed to have expressed a clear, settled and informed wish, free from coercion or pressure
- be expected to die within six months
- make two separate declarations, witnessed and signed, about their wish to die
- satisfy two independent doctors that they are eligible – with at least seven days between each doctors’ assessment
A High Court would need to be satisfied that these conditions are met, after having heard from the doctors and, if deemed necessary, from the patient, before authorizing the procedure.
Worth noting is that the law would only apply to cases of suicide assisted by a healthcare professional, that is, where the lethal drug is self-administered by the patient, but the professional needs to provide the prescription. It doesn’t include active euthanasia, where a healthcare professional administers a lethal drug.
Here I would like to reformulate some points that, it seems to me, tend to be mixed up in this debate, but that I think it is important to keep distinct to ensure we are not talking past each other.
It is not about the morality of suicide
One issue whether suicide is morally acceptable. Although often brought up, this should not be relevant to discussion of this bill. What matters is whether suicide is a right and, more importantly for the purpose of this discussion, what type of right it is and what it involves. That is a different type of question, because arguably we often have the moral and legal right to do morally wrong things (see e.g. Waldron 1981). I might have a moral right to kill myself even if suicide is morally wrong – and one could argue, the law shouldn’t prevent me from doing morally wrong things (assuming they are wrong) that concern only or primarily myself. One could, for instance, appeal to a right to “self-determination” regardless of considerations about the morality of suicide, because “self-determination”, on some views, says nothing about whether what I determine to do to myself is moral (but it’s worth acknowledging that some would contest this claim). But is suicide a moral right, and should it be a legal right? The question calls for some disambiguation, as rights can be of two types: negative and positive.
It is not about a negative right to commit suicide
The second issue is whether suicide is a negative right (morally) and should be a negative right (legally). Negative rights are rights to non-interference. They are typically protected by laws that prevent others from interfering with our plans. Should I be allowed to kill myself, without others interfering with my choice, at least assuming my choice is truly autonomous (whatever this means)? However, again, this is not what is at stake with this bill. Suicide might well be a negative right – and legally in the UK and many other countries suicide itself is not a criminal act. However, this bill is about State oversight and the involvement of medical professionals as part of ‘assistance in dying’. At the moment, “under section 2 of the Suicide Act 1961 it remains a criminal offence for a third party to assist or encourage another to commit suicide” (UK Parliament 2015), but this needs to be qualified. In England and Wales it is already possible to be exempted from prosecution when helping loved ones to obtain medical assistance in dying abroad, if prosecutors are satisfied, among other things, that compassionate motives guided the choice. In fact, the current Prime Minister, Kier Starmer, was the one who introduced this policy when he was Director of Public Prosecutions. However, the legal exemption does not extend to medical professionals who provide that assistance in their professional capacity. That extension would require new specific legislation about what healthcare professionals are permitted to do. This is what the bill under discussion is about.
It is about the legitimate role of the health care profession
Thus, the third issue is whether there should be a right to non-interference from the State if someone receives aid in dying specifically by healthcare professionals. This is what this bill is about. If a healthcare professional is willing to provide me with a prescription for a lethal drug and I request that assistance, and I fall within the relevant category (that is, I satisfy the conditions listed at the beginning) should I, my family, and the professional be ‘left alone’ by the State or any other institution and individual? This question is as much about a right to self-determination as it is about the nature and role of the healthcare profession in our society. What do we, as a society, want the healthcare profession to be about? This question derives from the fact that healthcare professionals are licensed by society to provide medical care. There would be no healthcare “profession” without society licensing certain individuals to perform certain procedures and access certain drugs in a regime of monopoly. Society does so because it needs and wants qualified experts to provide specific services that it considers valuable. Thus, the decision on what the healthcare profession is for is up to society at large.
That is why the legitimate scope of healthcare is a political decision, not something that should be decided internally by the profession itself. As such, it sometimes gives rise to societal and political controversies about whether healthcare professionals should be legally allowed to provide certain services on which people are likely to strongly disagree, such as abortion, euthanasia, physician-assisted suicide, transgender interventions, and so on. As with any other political issue, this is a matter of societal and political negotiation within the boundaries of constitutional protection of fundamental rights. Some do not want to live in a society that licences healthcare professionals to help people to die . Others would see that as a sign of compassionate healthcare and as one of the ways in which healthcare and medicine can be used to alleviate suffering.
I do not intend to take a stance on this issue, but simply to point out that this is the relevant issue at stake with this bill. One might have a negative right to kill oneself, but not a right to medical assistance for that purpose. The justification for that right would require a separate type of discussion.
Should medically assisted suicide be a positive right?
The last point relates to a fourth, even more controversial issue. That is whether receiving medical assistance in dying is a positive right. Positive rights entail a claim on others. If I have positive right to MAiD, it means that someone or some institution has the respective obligation to provide it to me. This issue differs from any of the issues we have examined so far. Suicide might well be morally permissible (first issue). I might have a negative right to kill myself (second issue). And I might well have the right to receive MAiD by qualified healthcare professionals (third issue). However, this says nothing about whether anyone is under a moral or professional obligation to provide MAiD to me. Whether someone is, and in what capacity, is precisely what would need to be argued for. Again, this is a question about the nature of the healthcare profession, but is more specifically about professional obligations, rather than about what healthcare professionals may permissibly do. Among other things, it raises the question whether there should be a right to conscientious objection by healthcare professionals to the provision of medical services a patient is legally eligible to receive – which again is a question about the meaning and scope of the healthcare profession. Legislations permitting MAiD do protect doctors’ conscientious objection, as does this bill. However, some argue against such conscience clauses (Savulescu and Schuklenk 2017).
Again, it is about the role and nature of the healthcare profession
Once again, this is a matter of societal and political decision about the proper role of the healthcare profession, not about the morality of suicide or the right to take one’s own life. This is what the bill is ultimately about.
References
Savulescu, J., & Schuklenk, U. (2017). Doctors have no right to refuse medical assistance in dying, abortion or contraception. Bioethics, 31(3), 162–170.
Waldron, J. (1981). A Right to Do Wrong. Ethics, 92(1), 21–39.
Thank you for a clear description of where responsibilities for that type of decision sits.
However, following the affirmative decisions, the debate inevitably shifts towards including relevant moral and ethical implications within the detail of the proposed regulation, which, whilst it was stated earlier in the process would not change at all, the lead proponent is now reported as stating the bill will require alterations (I suspect the result will be confusingly large appendices and guidance notes with possibly further allied regulative changes.). Necessary alterations to the relevant ethical frameworks for the medical profession will also become apparent as further details emerge (Which you indicated in your presented arguments.). The point about individual autonomy, when transferred to professionalism and duties of creating collated responses of a profession also highlights the expected difficulties.
One difficult point I would like to raise in respect to those ongoing/future discussions is where medical accidents occur which leave a patient with less than six months to live and the patient subsequently opts for MAiD how may robust protections be installed to assure that any creative pointing towards the MAiD option does not originate from organisational interests? This will probably become especially important as any logical weakening of the coroners role is brought about, and within jurisprudential thought.
It seems necessary within all of this to recognise that the public sector/media demands for free information and the switch between informing a debate to apparently informing the detailed construction of a regulative framework which one disagrees with (looking towards death rather than life and the motivational alterations that frequently engenders.) should not be interpreted as any change in opinion on this matter.
These issue and especially last question reminds a little bit Gareth Lee’s case about „Gay cake“. Simply said Gareth Lee wanted the bakery in Belfast running by the catholic couple to make a cake with the notice „Support Gay Marriages“. The husband and wife refused such an order as for their cathoilic faith and Lee claimed that they were obliged to fullfil his order because it is his posivitive right.
The traditional idea of the human rights is connected with the negative status. That means that the public power is banned to interfere the free space of each individual.
The problem with the positive rights is that it can easily be changed into the activistic style and „fight“ against somebody or something. The terrorism is the extreme form of such an approach.
Returning to the health care providing the patient cannot force the health care workers to perform practice that is not „lege artis“ (in the other words the patient cannot force the health care professionals to cause the death actively).
The relationship between patient and health care provider is relation between two PRIVATE subjects.
Yes, this relatioship is of course also regulated by the public law but its base remains private.
That means that patient is fully allowed to CHOOSE or to REFUSE the health care. Also he/she has the right to be informed about risks, alternatives, consequences of health care etc.
But patient cannot claim the procedures that are not professionally correct. Even if this claims are falsely interpreted as his/her human or positive right.