The Royal Society of Edinburgh Supported by the Faculty of Advocates. Conference. Assisted Dying

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1 The Royal Society of Edinburgh Supported by the Faculty of Advocates Conference Assisted Dying 30 March 2011 Report by Kate Kennedy What are the fundamental underlying core (neither medical nor legal) arguments for and against assisted dying/suicide? The perfect philosophical position supposes a situation where there is a guarantee that the law will never be abused and that the means of suicide will implicate no one other than the person who desires to end her/his life. Can viewing the subject from a philosophical perspective help clinicians, lawyers and policy makers make betterinformed decisions? Chairman: Dr Richard Holloway FRSE Dr Holloway introduced the day s proceedings by referring to John Rawls famous philosophical text A Theory of Justice, which described a concept known as the Veil of Ignorance, whereby Rawls supposed that if a person were to develop a new society from a blank slate, unaware of what his position in that society would be, then the results would be a more humane and equitable type of society. Dr Holloway stated in wanting to debate the subject of assisted dying, realising just how difficult and how emotional subject it is, we wondered if there was a way to focus the debate on the pure philosophical issue. If you could develop a way of enabling assisted dying that was beyond abuse, beyond implicating others, what are the arguments for and against doing it? The following report is split into sections relating to each presenter, followed immediately by a summary of the associated discussion and question and answer session. Baroness Mary Warnock Philosopher Is it ever justifiable to help someone to die, who wants to die and who is dying? Those most opposed to assisted dying, on the whole, speak from the point of view of Christian, Muslim or Jewish faiths and rely on the argument that human life is sacred. They believe that life is a gift from God and, as such, only God has the right to take it away. However, Baroness Warnock ascertained that those who rely on the sanctity of life argument to oppose assisted dying, very quickly move on to other arguments to support their beliefs, namely that assisted dying is open to abuse and that drafting a law to enable this would have negative effects on society. Baroness Warnock believes that a change in the law is necessary if we are to move to a position where someone who helps someone to die is not prosecuted. Therefore the question of how to draft the law immediately becomes extremely important. The question of whether the law should be changed is itself a philosophical question of seminal importance, namely a question of how to balance what may be in the interests of an individual person against the common good.

2 Baroness Warnock continued by concentrating on the question of whether it is ever right to concede to somebody s express wishes, and often those of their family, when they are dying and make their deaths both sooner, shorter and more tolerable than if we didn t intervene. In discussing this issue, Baroness Warnock drew attention to the word dying and the fact that many people, particularly those in the medical professions, find it difficult to use the term and, indeed, to discuss death at all. If you are in this position you know, and doctors and nurses must also know, that there comes a moment when someone is dying; they are not dead, but they are dying. It seems that there is a moment when the person who is dying either recognises it themselves and asks to be helped or they are so miserable and so barely aware that they can t articulate this, but have previously articulated their wish to never to get into this condition. In either of those situations it seems to me that compassion demands that we do not continue to keep them alive. Alternative methods to assisted suicide can be used to bring about eventual death, including withdrawing food, hydration and nutrition; however, such methods may result in a slow lingering death that can take weeks and be particularly painful for the individual s family and friends. Baroness Warnock does not believe that allowing someone to die in this way is a particularly morally admirable attitude someone who is dying in hospital may be subjected to the kind of suffering that we would never allow to occur in a civilised country; with all the ways of administering medicine that we have, all the amazing things we can now do, I think that we would never, if we thought about it properly, think of letting someone suffer as much as some of these dying people in hospitals do suffer. As such, compassion rather than law or religion should govern how we treat people who are dying. Baroness Warnock suggested that the point where a person no longer values his own life, is the moment when the question of whether they should be helped to die should be raised. I don t think it helps us philosophically or practically to think that life itself is what we value; what we value is a human being who is enjoying using and rejoicing in his life. Baroness Warnock considered that, in certain circumstances, suicide or assisted dying is rational and, for some, is the only hope. We must not think that assisting someone to die means we do not value human life as a whole. Of course we value the human beings who are alive, but humans who hate their lives or who are conscious of the fact that it is a very short life and absolutely horrible with nothing to be said for it, undignified, then I see no moral reason why we ought not to help them attain that which they wish. I am not saying that I think it is alright, I am saying that it is right and I think that is a philosophical question that we have to debate today. Discussion/Q & A Audience Member: As a psychiatrist for 42 years, there will never have been a time when I would have had someone on my ward who said that they felt their life was terrible, hateful, that they wanted to die. I have always been clear that it was my absolute duty to try to stop them, sometimes it is very difficult to stop people killing themselves and of course, sometimes this is a treatable condition and you can bring them round from that point of view but this doesn t always happen. These people are not suffering from a disease of the body that will inevitably kill them. How do we fit people like this in to the views that you have expressed because these people wish to die and in some cases their life is not going to be long, the chance that they will not manage to kill themselves in time is very low? Baroness Warnock: I think they do fit in. There is a very difficult issue in the question of whether it can ever be right for someone who is suffering from an incurable psychiatric illness to be helped to commit suicide, because there are cases where they will commit suicide in the end if they are released from hospital. I think this is a very difficult position and I don t think I have an answer for it. There is an autobiography written by an American journalist, Catherine Graham, which tells a terrible story of her husband who was bipolar and had terrible episodes of manic behaviour and some perfectly lucid episodes. In one of the lucid times he looked back on the terrible damage he had done and shot himself.

3 There are other people who actually deeply want to die, who have just had enough and are not enjoying anything anymore, and those people I think should be allowed to choose to die and therefore the question is who is going to help them? To have people handed some pills and told they can take them is extremely difficult and they may not be able to, for example due to issues with swallowing. I honestly believe that doctors and nurses have to face the fact that they may have to administer a lethal dose themselves. The audience member added that in her experience it actually is horribly easy to commit suicide we would have patients in hospital with two nurses at arms length and I have still known them manage it even in hospital. Audience Member: I think the issue that we are discussing is the dignity of the person who is undergoing an assisted suicide, whether it is with nurses beside you or whether it is sharp implements. Unfortunately in my line of work, which is forensics, we do a lot of work in relation to people who do successfully commit suicide. It is not pleasant and often very messy and you have to ask, where is the dignity? If you chose to come to the end of your life, do you also have the right to say can I have the dignity to not die in horrendous pain or to leave a dreadful mess for a nurse to clean up?. I think the issue for the participant is also about dignity. Audience Member: This is never going to be a pure issue. It seems to me the drift in society is that we want things in absolute black and white, so in trying to devise a piece of law which makes things either one way or another, the reality is that there will always be people who fall in between for whom we cannot legislate. What we should look at is the underlying principle. Baroness Warnock: I think there is great difficulty in keeping the question of what would be the effect of the changes of law out the consideration of what you call the underlying principle. I want to confine what I am saying to cases where the person in question is dying either in old age or of some very painful disease with no cure. In these cases there seems to be an overwhelming reason of compassion to help a person to die. But immediately the arguments start: what message would this give to other people who may not want to die but who may live in fear now that the rest of their lives will be taken away from them? I don t believe in this fear, but this is what is constantly adduced. One thing I didn t mention before is the increasing use of what is sometimes called therapeutic or terminal sedation, which means the patient is in varying degrees of sedation between consciousness and unconsciousness now if I were in this position, particularly if I were put in to a hospice, the first thing I would do is ask for terminal sedation. It wouldn t matter to me whether I was terminally sedated and had to wait a bit to die or whether I was given a lethal dose it seems to me a extraordinarily casual distinction between sedation from which the patient is not intended to survive and actually killing with a lethal dose. I very much dislike the expression terminal sedation, although the actuality is something I would probably in certain circumstances greatly welcome. It seems to be a very impractical and extremely expensive solution. Audience Member: I work in a hospice and I want to take issue with the assumptions about the use of sedation within a hospice, as that doesn t describe how we practise. We use sedative drugs in the management of anxiety and stress at the end of life we don t just flatten people to unconsciousness and let them die. If that is what we did, then I would understand the philosophical question of what is different between that and euthanasia, but that is not how we practise. We use doses to relieve symptoms and distress; we do not use them to deliberately flatten the patient. Audience Member: The argument that law is open to abuse and, therefore, should not be passed strikes me as rubbish. All laws are open to abuse, all laws may be broken, all law is self-fulfilling. Whenever we pass a law there will be cases where it is offended against; that is not a reason for refraining from passing it. Rules should be reasonably clear and allow as many people as possible to follow their own moral views.

4 Baroness Warnock: I wonder what you think about advance decisions, because the idea of who is compos mentis at the end of life is sometimes very difficult to establish; somebody may be in such distress and pain that they hardly would normally be thought to be compos mentis. I d like to know if you think it right that at that stage of someone s life they could be helped to die; when they are beyond being competent to decide but have made it clear in their earlier life by putting it in writing? Audience Member: I think what worries me is that before one comes to these complex questions, you cannot discuss them sensibly with someone if you are at odds on the basic rightness or wrongness of being allowed to die. As one gets older the person taking the moral decision that they have decided to die has all the ordinary moral obligations and problems of anyone, but as you get older there are fewer and fewer people to whom you owe it to remain alive and one would take that in to account. I cannot discuss sensibly with anyone the whole question of assisted dying until I get some feel for their view of about what I think is my right to kill myself when I chose it, whether I am ill or not. Audience Member: There are cultures where this would not need to be debated honour cultures where honour and shame are considered absolutely valid ingredients in making a decision to end one s life. The question seems to me, there is no absolutely pure culture that has not been influenced by other factors and there is no doubt that we live in a culture that has been profoundly affected by a particular religious tradition, and one of the difficulties for many people is that for those who do not share that particular religious tradition, it is very difficult for them to assert their own attitude towards the dignity of their life because it gets cluttered up in the anxieties of other people. Baroness Warnock: It is good occasionally to remember how suicide used to be a question of honour and you would be admired if you fell on your sword. But I think it is increasingly difficult for people to commit suicide. For most people it is difficult, and yet it is compatible with a real wish in some people to die when they are ready to die. I think ideally one would be able to die without an intermediary, but it is very difficult to do. Audience Member: I was at the service to commemorate the life of a great friend of mine who went to Switzerland to die. She had always been in control of her life, she suffered very considerably and she finally decided that she had had enough, that each day was more painful. Some of her family disapproved of her decision. These feelings are so emotionally felt that those of the family who knew I had been her friend and been partially involved in her decision hardly spoke to a group of us of the same feeling at the service. It underlines the very deep emotional reaction there is to these questions, which are not based on reason at all. Audience Member: Where suicide or ending your own life is available by law and administratively the medical profession is prepared to sign the prescriptions, the number of people who avail themselves of the opportunity is absolutely infinitesimal. In Scotland it works out at about one per week. So, I am puzzling why if so few people actually take advantage of it when it is legally available and administratively available, why do people leave it beyond the time when they can do it easily themselves, that is the problem. Why can t people be as sensible as that? Baroness Warnock: I think that people who are bright and intelligent and young can quite easily commit suicide if they ve decided that they really want to. I still maintain that for the elderly and infirm it is extremely difficult to see how they can easily commit suicide. Audience Member: Regarding the infrequency of encountering doctors who are willing to make a diagnosis of dying, I have some words of comfort. Such individuals do exist, there are some doctors who are able to recognise that there are some patients who have reached a point near to the end of their lives and are quite properly able to assist with the next stage. I see the first part, to make the diagnosis of dying, as a failure of medical education.

5 Audience Member: How much is it a perfectly natural human reluctance to deal with the subject of dying? There may be something even deeper than the purely medical side to it. A lot of people cannot cope with death and I imagine there are a lot of doctors among them. Audience Member: We need to remember that those in favour of assisted dying are not insisting that it becomes obligatory or enforced. It should be made available as an option for those that want it. For those that don t, then they don t have to do so. Professor Sir Graeme Catto FRSE Professor in Medicine and Former President of the GMC Professor Catto alerted the audience to the fact that the medical profession is not as knowledgeable about assisted dying as it perhaps ought to be, stating that many doctors do not actually care for terminally ill patients and, therefore, do not speak from personal experience. He continued by defining the range of patients considered within this presentation, I am talking about patients who have about six months to a year or less, who are adults and mentally competent at a time when they are going to make a decision about assisted suicide. Legislation has been in place in a number of European countries for a number of years and therefore there is a lot of data relating to the classification of patients who seek information on assisted suicide. In the United Kingdom this is about 1000 per year. Larger numbers express an initial interest but very few actually take advantage of it. The reassurance that many people seek is that were the situation to become intolerable then they would have a way out. Many people who do have a fatal illness don t wish to lose what enjoyment they have but would like to know that if life did become intolerable we have a way out when we are frail and unable to take advantage of the arrangements that able bodied people can. Professor Catto explained that there is a huge paradox in that suicide in itself is not illegal, but assisting suicide is illegal in Scotland and England. In contrast, murder and robbery are also both illegal; however if you assist someone in this you too are guilty. Public opinion is overwhelmingly in favour of assisted dying. Opinion polls collated over the last 20 years show somewhere between 75% and 80% of the UK population is in favour of assisted dying. That is to say, they are in favour in terms of mentally competent adults who have a limited life expectancy and have a fatal illness making this decision. However, when other groups of patients are brought in to consideration, for example those with considerable disability but perhaps not an immediately life-threatening illness, then public opinion begins to dissipate. Professor Catto also noted that doctors and other health care professionals are also less likely to be supportive. One reason for this is the change in the role of the General Practitioner, whereby the tradition of looking after a patient through all stages of life has moved to being a more distant relationship and towards issues of life expectancy rather than quality of life. Additionally, one reason why many doctors do not discuss dying in the depth patients might wish is that the conversation might lead directly into a cul-de-sac, the doctor can do absolutely nothing if the patient says actually I would like my life to be shortened. Voluntary euthanasia and assisted suicide are illegal under the Suicide Act of The Director of Public Prosecutions in England subsequently clarified the rules on what would make prosecution in England more likely or less likely, and the medical defence organisations interpreted these findings to mean that any healthcare professional s discussion with a patient about shortening their lives might lead to prosecution and therefore this discussion should not be entered in to. The lack of General Medical Council (GMC) guidance on the issue of assisted suicide is hugely important to doctors. The GMC has a broad remit to protect, promote and maintain the health and safety of the public by ensuring proper standards in the practice of medicine. Professor Catto explained why the GMC has no position on assisted suicide. The GMC has a

6 statutory duty to give ethical guidance to doctors, and it is the kind of ethical guidance that they can t easily refuse to obey if they ignore it or disobey there may be sanctions on their licence. The GMC has no authority to determine public policy on these issues; this is a matter which will have to be debated by parliament and any attempt by a Council to give that kind of guidance goes way beyond its current remit. Regulators are absolutely not representative bodies and certainly do not represent the views of the doctors and don t represent the views of the patient or public either. The GMC, though, expects doctors to adhere to the law and the law is explicitly clear that you cannot be involved in assisting suicide in this country at the present time. Professor Catto noted that the GMC s guidance has become increasingly liberal over the years; recent guidance indicates increasing patient choice, but not up to the point where assisted dying is yet possible. I also think the debate has been complicated by a whole series of cases in the press, so instead of looking and focusing on a small number of readily defined cases, we get problems with young people who are paraplegic after rugby injuries are they eligible for assisted suicide or not? Not in any sense terminally ill, but they are distressed by their illness. Some of these people have gone to Switzerland within a year of receiving that injury; it is not clear to me if that is an appropriate use of assisted suicide. I also think that those people who are tired of life; I am unsure if that is what I would want the law to be changed for. The question Professor Catto raised is whether it is any surprise that doctors don t take the risk. Why should they put their heads above the parapet and be pilloried by a large number of the population who don t agree, when the law is against them and the GMC is against them and the medical defence organisations are positively advising them not to? I think if you are at the end of the syringe then there is a horrible reality about the finality of death many of us are completely ignorant as to what would be best practice. It may be that suicide is relatively easy; actually as a physician I can tell you that I have seen lots of people who have attempted suicide and it didn t seem that easy to them. Professor Catto ended by stating that he believes that one day Parliament will allow some form of assisted suicide. Arguments against assisted suicide are usually the slippery slope, purporting that they start off with a small, clearly-defined group of patients, and if it is good for them then it s good for others who don t quite fit in to that definition. There is absolutely no evidence from other countries that this actually happens. Another issue is that it will be the people who can t actually express their own views that will be cajoled into this end-of-life arrangement; again, countries involved in this show the opposite. Finally, I genuinely believe that if the law were to be changed, it would not cause insurmountable problems for the medical profession any more than in other countries. Professor Kenneth Boyd Medical Ethicist and Theologian Professor Boyd reflected that not so long ago people got sick and died within a matter of days or weeks. Today, the great success of modern medicine means that acute causes of death are transformed into chronic illnesses and now people grow old and accumulate diseases for a long time before they die. He described this situation as elderly people inching towards oblivion with small losses every few weeks or months. This is the demographic and epidemiological context that theological perspectives on assisted dying now need to address, but as Professor Boyd ascertained, this isn t easy. It is not just that the Bible has little to say about the modern medical progress, it is also that the Bible, in common with other religious texts, offers little or no unambiguous guidance on the ethics of suicide. It is only later in the Jewish, Christian and Islamic traditions that theological perspectives on the question developed. These perspectives needed to be developed to distinguish suicide from martyrdom, and were arrived at by interpreting a limited number of references to suicide in sacred texts. These were interpreted not only according to theological views, but also with regard to social and culture assumptions of the time.

7 In this presentation Professor Boyd sought to concentrate on how Christian theological perspectives on suicide developed, how they were challenged and how they might address the contemporary context. It is generally agreed that Christian objections to suicide were consolidated in the early 5 th Century by St Augustine. He argued that suicide went against the Commandment not to kill, that it was cowardly and that it deprived the sinner of a chance to repent. His theological perspective of suicide was generally accepted in the Christian church for the rest of the first Millennium. Eight centuries after St Augustine, Thomas Aquinas refined the Church s position. Aquinas taught that it was unlawful to kill oneself for three reasons, these being that suicide was contrary to natural law; that it injured the community to which the suicide belonged; and because life was a gift from God it deprived God of his property and power to decide about life and death. Aquinas views were challenged in the 17 th Century by John Donne in his Biathanotus. Donne looked back beyond St Augustine to the other Fathers of the Church, and particularly to the scriptures. He discovered far more equivocal views on the subject and, moreover, he found Aquinas stance lacking. Donne believed Aquinas first argument relating to natural law to be too sweeping. He considered that in so much as there is a natural desire to keep ourselves alive, there is also a natural desire of dying, often expressed in scripture and by saints and martyrs. Aquinas second and third arguments, Donne again thought too sweeping. He did not deny that some suicides harmed their community and that God s gifts could be misused, but whether or not there was harm or misuse in a particular case, Donne said, was a matter for conscience to determine in light of the intentions, motives and circumstances of the case. It was for conscience to decide whether suicide was committed for self-interested motives or, a rather daring point, as in Christ s own case, as an act of self-sacrifice. Professor Body explained that a challenge to the idea that suicide was morally impermissible came a century later in David Hume s essay on the subject. Hume argued in a Utilitarian vein that whether the person s suicide harmed the community somewhat depended upon what he still had to offer the community. He suggested this may be very little and may eventually be outweighed by his continuing life becoming a burden, not only to the community but also to himself. Regarding Aquinas arguments based on natural law, Hume interpreted these as if they referred to causal laws of nature which humans break all the time by preventing themselves from harmful natural events. Hume also argued that if Providence really is sovereign, nothing can happen without Providence s consent and so neither does a person s death, however voluntary, happen without its consent. Hume even went so far as to claim that if a man takes his own life because of his misery but at the same time sincerely thanks God both for the good which I have enjoyed and for the power which I am endowed of escaping the ills that threaten me how can that be evil? While the arguments of Hume and Donne were challenged on various grounds by subsequent theologians and philosophers, they eventually helped to make the unequivocal Augustinian condemnation of suicide seem increasingly untenable. This in time contributed to the decriminalisation of suicide. Professor Boyd noted that today, even the Catholic Church, while it condemns the act of euthanasia as a violation of the divine law and an offence against the dignity of the human person, a crime against life and an attack on humanity, nevertheless speaks of the agent in a vein reminiscent of medicalisation when it states that in cases of prolonged or barely tolerable pain, the guilt of the suffering individual may be reduced or be made completely absent. Not even Hume, however, went so far as to say that every suicide could be morally justified. Professor Boyd stated that the view that anyone has the moral right to end their own life at any time and for whatever reason is difficult to defend. The moral community needs at the very least to be satisfied that the agent is autonomous in the principal Kantian sense of acting only after having duly considered the reasonableness of his intentions and in the light of the circumstances and the likely consequences. The moral community clearly cannot always prevent the virtuous of this world or those overcome by social shame that others consider trivial from ending their own lives prematurely, but it normally feels entitled to withhold moral approval if only to discourage imitation by others.

8 What of the circumstances such as those envisaged by Hume, where an autonomous individual has duly considered the reasonableness of his intentions and motives in the light of the circumstances..? That perhaps is how some of those I mentioned at the outset, inching towards oblivion with small losses every few weeks or months, may see themselves and decide autonomously in their case that suicide or euthanasia is morally justified. Would seeing their situation in a theological perspective make any difference to this decision? In trying to answer this question, Professor Boyd quoted a doctor: our current conceptual apparatus for thinking about the ethics of end-of-life care betrays a lack of social understanding that is illustrated by our use in the language of decision making and law more often than that of spiritual journey and psychological meaning. Professor Boyd believes that a theological perspective probably makes little difference when, in a pluralistic society, a person decides that in their case suicide or euthanasia is morally justified. We do not live in a theocracy but in an elective democracy, where the views which persuade the largest public prevail and that public may well be duly persuaded that the potential risks of legalising euthanasia, as previously of decriminalising suicide, are outweighed by the justice of respecting individual autonomy. It is rather in what happens next, whether or not society decides to legalise euthanasia, that a theological perspective may make a difference, and do so in terms of what the doctor calls the language of spiritual journey and psychological meaning. The difference that a theological perspective may make is not so much in how the autonomous individual sees their decision, as in how they see the world and themselves. Professor Boyd quoted Iris Murdoch, who once observed that how we see, how we attend to reality and ourselves in between explicit moral choices is crucial. If we consider what the work of attention is like, how continuously it goes on and how imperceptibly it builds up structures of value around us, we shall not be surprised that at crucial moments of choice, most of the business of choosing is already over. Attention to reality and to ourselves, Murdoch argued is necessary, especially to liberate us from fantasy. She suggested the religious believer, especially if his God is conceived of as a person, is in the fortunate position of being able to focus his thought upon something which is a source of good energy. Professor Boyd added that if attending on God enables one to avoid fantasies about God as well as about oneself, a theological perspective on suicide, and importantly on what leads up to considering suicide, may help individuals make decisions that are more and not less autonomous. Not all theological perspectives, however, are benign: telling others that suffering can be good for them betrays the truth of what it argues, and while religion can be life enhancing it can also be the opposite. Having a theological perspective on life and death, moreover, does not mean that at the end of a long life it is wrong to decide that one has had enough. It would be wrong of me to omit that just because it is culturally unfashionable, that a theological perspective also speaks of the incalculable dimension of eternity. Today s perfect philosophical situation where the means to commit suicide will implicate no other person seems to be not just practically but logically impossible. Lord Sutherland of Houndwood PPRSE Philosopher of Religion Lord Sutherland opened discussions by stating that, rather than discussing autonomy, freedom, rights and justice, he would be exploring two concepts, those of body and death, and the connection between these. He purported that, in western society, we do not talk enough about death and often use humour to deal with a subject we find difficult to handle. Lord Sutherland also drew attention to the distinction between the very strict social rules and laws about what you can do to other people s bodies and the lack of these relating to what we can do to our own bodies.

9 Ludwig Wittgenstein stated Death is not an event in life. It s not part of your history, it is part of the chronicle of the matter out of which you are made, but it s not an event in your life. Lord Sutherland takes this statement to mean that there is an ultimate nature about death that raises questions about appropriate behaviour towards the body. Whereas it is ok to cut the fingernails off, it is appalling to pull them off. These are events in life but if in fact it is assisting with the cessation of life, then that is a different order of things. Lord Sutherland explained that the concepts of body and death in assisted dying belong to a much wider complex of concepts, practices and behaviours, and even of words. What is the context in which these words are used? They belong to the context of relationships between people; assisted dying is a relationship between individual persons. To assist in dying is to enter into a very particular relationship; it is more than being an instrument, it involves having a relationship with the individual. To assist in dying is not like assisting in other ways, it is assisting in the end game by providing the ultimate service, and in this way is not like any other relationship between persons. Lord Sutherland suggested that whilst depression and illness are all states of the body, so is death, but death has an ultimacy about it that neither of the other two have. To assist in dying is a very complex, subtle, difficult notion, where clarification, much as we would like it, is not easy and straightforward. Indeed, possibly being overly clear about it is not appropriate. Lord Sutherland considers philosopher Peter Strawson s Freedom and Resentment lecture for clarification on the issue of assisted dying. Strawson s lecture contrasted the range of attitudes of involvement or participation in the human relationship, some that we would characterise as objective, whereby you stand back and take account of the situation, and conversely those attitudes that are purely reactive. He stated that, A sustained objectivity of interpersonal attitude and of the human isolation which that would entail does not seem to be something of which human beings would be capable, even if theoretically you could prove it to be appropriate. Trying to be wholly objective about human beings, consistently, universally and without exception, is probably impossible. People will still get angry, they will still be given pleasure by seeing what friends and relatives achieve, and that is being reactive, not objective. Examples of the failure of the wholly objective attitude can be seen in literature, including Albert Camus L Etranger, the main character in which has no discernable reactive attitudes, producing a degree of human isolation. Lord Sutherland considers that being involved in the death of another person in a non-passive way, wholly objectively, is at the far extreme of interpersonal relationships. In Strawson s terms, to be an assistant to dying involves at least to some extent replacing normal reactive human relationships with an objective attitude to the human being. You have to change the relationship, otherwise I don t think you could do it. I agree it is more complex than this, but to be involved in the death of another does bring about and require changes. So what is an objective attitude in this context? Clearly, some people have to be wholly objective about death and being involved in the death of others, for example, in times of war, and this suggests a degree of capacity to step back from the normal reactive human relationships. This is even more the case for those involved in calculated murder, torture and even in surgery, where your emotions cannot get involved. Lord Sutherland suggested that there are cases where the objective and reactive attitudes come in to conflict; for example, Tolstoy s War and Peace describes a young soldier in the midst of war who sees his enemy as a human being. Additionally, Styron s novel Sophie s Choice tells of a tragic choice between two unbearable options. These are all extreme cases and examples, the stuff of tragedy, but Lord Sutherland ascertained that this concept of tragedy needs to be brought in to the discussion, in order to appreciate what it does to personal relationships. People driven to despair often get involved in assisted suicide. This is often how it is for the mother or the carer, driven to despair by the circumstances.

10 Lord Sutherland noted that pity, tragedy and sainthood are often not words used in the discussion of assisted dying, which is considered to be a clinical, social or legal matter. But this is the stuff of tragedy, there is a collision of emotions and reactions; guilt, shame, horror at what is being done or what one is involved in. Assisted dying requires the fracturing of the normality of human personal relationships. As shown by Strawson, we cannot see this event as if it were an objective activity. Assisted dying can be the ultimate expression of compassion, but we should not underestimate what it does to the individual involved. It will doubtless, in most circumstances, cause pain and possibly damage to the person who assists. It can require or elicit a kind of objectification which could, if it became a tendency in an individual, become dangerous. Lord Sutherland finished by posing the questions, Can we have a law governing this which is universal in its permissions and compassionate? Or can we have a just law which gives ultimate discretion to the prosecutor and which refuses to attempt to define all possible cases?, indicating he would be inclined to support the latter. Discussion / Q & A Session Audience Member: Is the reason why so many people seem to want it to be a doctor that assists, not only because doctors have the technical capacity but because they are perceived as being ethical? Will any legal change have to in some way involve the medical profession? Lord Sutherland: I agree that there is a comfort in it being someone who is a professional. I wouldn t want to make the case, however, that it can only be doctors, or to assume that all doctors are fit to do it. Audience Member: I would like to make the point that assisting someone to die might be the most loving action that might be taken. There is evidence from Dignitas that the process is not objective but very human and very loving. Lord Sutherland: I accept this. But equally you have to stand back and make an assessment of what is for the best, and to that degree I think objectivity is essential. But it also involves very deep emotions on both sides. Audience Member: If assisted dying is the ultimate relationship, I would suggest it depends on the ultimate basis of human relationships, which is empathy. However, if we empathise we then follow that with objectification, in order to facilitate the relationship caused by that empathy. Lord Sutherland: David Hume s basic concept was sympathy, and this notion involves a degree of objectification so you can see someone who is not closely related to you as having moral demands that they can reasonably make on you. Empathy and sympathy are things that require a bit of education. Audience Member: We tend to talk about the carer as a single person. It is often quite rare that it is a single person who is going to be involved in the decision-making process. Lord Sutherland: This is part of the complexity and the difficulty. People might have very different views about what is appropriate, and also different views about your motives. This is where the notion of self-knowledge becomes very important. Audience Member: Is it possible in some circumstances that there might actually be an obligation to take part in assisted dying to bring suffering to an end?

11 Lord Sutherland: You probably have to believe that there is an element of obligation, but on the other hand, if it is just that you have decided that you have an obligation, that may be different from the view of the individual whom you feel obliged to assist to die. In the case of someone who is depressed, I don t think you have an obligation to follow through the wishes that they may have expressed at some point. We can be deeply mistaken about what our obligations are. Audience Member: We started this session by saying doctors didn t have to be involved in this and ending by saying that doctors could have an obligation to put people down. Assistance is to the individual patient, so the patient is the person who drives this not the doctor. Of course, there has to be a conscience clause that lets doctors refuse to take part, but there has to be an equal cause that says if you don t want to do it, you have a responsibility to guide the patient appropriately as someone who is willing to do that. In Switzerland, there is very little human contact: you go into a room alone and take the tablets. In Holland, it is a physician-led system and the physicians find it very draining and exhausting to be involved because there is a personal relationship with the patient. Lord Sutherland: I agree that you should not impose on people certain duties without realising what it does to them. There is a worry of burdening other people by asking them to assist due to the guilt they may feel. Professor Sheila McLean FRSE Institute of Law in Ethics & Medicine, University of Glasgow Referring to voluntary euthanasia and assisted suicide, Professor McLean stated that both cases amount to murder under current Scots law. The voluntary actions of the deceased who takes the prescription is not enough to break the chain of causation between the original action and the subsequent death. She purported, however, that the law in Scotland is not entirely clear. The only reported legal case of assisted dying in Scotland is that of HM Advocate versus Brady, whereby Brady administered tranquilisers and alcohol directly to his brother who was in the advance stages of Huntington s disease and had asked his brother to assist him. Brady was initially charged with murder and admitted that he deliberately ended his brother s life. The Crown accepted his offer to plead guilty to culpable homicide. In sentencing, Lord Macfadyen admonished him in light of the mitigating circumstances and the fact that his motive was compassionate rather than malicious or self-serving. Professor McLean suggested this case is problematic, as reducing crime to culpable homicide from murder requires evidence of diminished responsibility in the form of either psychiatric evidence of abnormality of mind or an inability to control ones actions. The necessity to present what was a compassionate act as one based on mental abnormality appeared to stretch legal principle beyond the limits of logic. In addition, it should be noted that the plea of diminished responsibility is unlikely to be available to everyone who might assist in intentionally ending another person s life. It is difficult to envisage how diminished responsibility could come to the aid of a physician. In England, voluntary euthanasia is classed as murder; however, assisted suicide in England is a specific offence which was inserted into English law at the same time as the decriminalisation of suicide in The Director of Public Prosecutions (DPP) recently issued guidelines designed to provide some kind of clarity as to the circumstances in which people would or would not be prosecuted for assisting in suicide. This was provoked by the case of Debbie Purdie, who asked for clarification as to whether her husband would be prosecuted if he travelled to Switzerland with her. This case was reported in some press as a victory for pro-choice campaigners. However, Professor McLean stated that in real terms it was not a victory. There are important aspects about this case which show that it is not an endorsement of a right to assisted suicide. The House of Lords decided that, unlike in an earlier case

12 involving Diane Pretty, Article 8 on the Convention of Human Rights, that is the right to private and family life, was implicated in Ms Purdie s case. The Convention requires the courts and the prosecution services to address themselves to the principle of legality. This includes that the law in question has to be sufficiently accessible to the individual who is affected by the restriction contained in that and sufficiently precise to enable them to understand its scope and foresee the consequences of his actions, so that he can regulate his conduct without breaking the law. Despite the fact that there is a code of conduct for Crown prosecutors in England and Wales and an equivalent code in Scotland, the House of Lords concluded that the rules about assisted suicide in respect of travel overseas were not sufficiently clear and could not be sufficiently guessed at by an individual. It was on that basis that the DPP was required to issue additional guidelines to clarify this situation. Professor McLean ascertained that the same challenges to Scottish prosecution policy could be raised and that Scotland, therefore, also needs to clarify its prosecution policy. A further difference between the Scottish and English jurisdictions is that the House of Lords made it clear in Miss Purdie s case that it is possible that an individual who travels overseas with someone and plays no other active role other than facilitating the trip and being with the person when they die, technically can be charged with assisting a suicide when they return to England. This would not be a competent charge in Scotland. Professor McLean proposed that just as there are potential inconsistencies in the legal position, so there are inconsistencies in the overall picture of assisting a death. Are there any situations in which people can assist a person to die and escape the rigours of criminal law? Ms B, a ventilator-dependent quadriplegic, clearly stated that she had no intention and no desire to live in her circumstances, even if weaning off the ventilator could be successful, and requested that the doctors removed her ventilation and allow her to die. The doctors refused this request and the judge attended the hospital to speak to Ms B. She held that the patient had an absolute right to refuse life-sustaining medical treatment even if the reasoning behind the doctors refusal was that they felt as if they were killing her by removing the ventilation. The principle of autonomy was held to supersede the concerns of the doctors and to an extent this addresses the question about whether or not there is ever an obligation to assist in a death. The doctors cannot breach the patient s right of autonomy to make healthcare decisions for themselves, even if those decisions result foreseeably and knowingly in death. It could be argued that the doctors did not actively kill the patient; rather they omitted to continue to save her life. In Professor McLean s opinion the acts and omissions distinction is one that lawyers resort to with somewhat facetious and disingenuous regularity. There are, in many cases, very clear distinctions between omissions and acts. However, whether or not we can make the same distinction in the duty-of-care relationship that exists between doctors and patients is more dubious. It is generally held to be the case that the doctors duty of care is not to harm the patient. The doctors duty is not, however, to save life at all cost. This already does not happen, for example in cases of people in a permanent vegetative state (PVS) who will never recover consciousness, thought process and interaction with the world, but can be kept alive or in existence for many years. A classic case of the assisted death of someone in PVS is that of Tony Bland who was injured in the Hillsborough disaster. Supported by his parents, the doctors petitioned the courts to allow them to withdraw assisted nutrition and hydration in the knowledge that this would bring about his death. Professor McLean considered that the House of Lords reached their conclusions on the lawfulness of this by somewhat devious routes. They didn t all necessarily agree with each other, some had rather spurious arguments and some, including Lord Mustill, more thoughtful judgements. Lord Mustill stated that he was deeply uncomfortable about trying to make the distinction between acts and omissions as a way of justifying what he clearly said was the intention to kill Tony Bland. He also said that he was not going to fall for the acts and omissions distinction, describing the law as intellectually misshapen. The case was approached from many different angles, concluding in the decision that it was lawful to remove the assisted nutrition and hydration.