Should libertarians support assisted suicide? Or is the question akin to Locke's consideration of legalized slavery? Henry Oliver weighs the debate and argues that freedom over ones body is intrinsically linked to the freedom to die.
This week the issue of assisted suicide and euthanasia has come up again. In one case a woman in a coma who had signed a living will asking to be taken off her life support. The court has allowed this. In another case, M is not in a Permanent Vegetative State (PVS), but in a Minimally Conscious State (MCS). The dilemma here is that she is conscious and reacts to stimuli to the extent that she cries when listening to music; but she cannot actually communicate. The reason for the application is: “she would never want to live a life dependent on others, even if she retained her mental facilities”. Is this assisted suicide or murder, and should liberals want this legalised?
At first glance it would seem that, as is so often the case, JS Mill has the answer:
The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant…Over himself, over his own body and mind, the individual is sovereign.
However, Locke says something similar, about our bodies being our property, but denies us the right to sell ourselves into slavery. Mill too denies the right to servitude.
Can the sovereignty of our own bodies extend to the right to suicide, and if so then on to assisted suicide?
Although suicide was legalised in 1961 a new offence was created: “encouraging or assisting the suicide or attempted suicide of another person.” So, when a patient requests a doctor to end their life it is a crime that could face the charge of murder. The difference in the case this week comes from the landmark case of Airedale NHS Trust v Bland. Tony Bland was a victim of the Hillsborough disaster and the court distinguished between the act of killing someone with a drug (assisted suicide) and the removal of treatment when someone is in a vegetative state. The first is a positive interference to cause death; the second is the removal of an interference that is preventing death.
It seems obvious to me that you can make yourself a slave, kill yourself, or do anything else you want to your body: being sovereign means having the right to abdicate. This is a simple case of property rights. Locke says I have a proprietary right in my own body, but that I cannot sell it. If I have such a right I can do anything: sell, rent, destroy. The right to get a tattoo is the same as right to kill yourself. And the right to kill yourself means the right to have a lethal injection if you request one.
What then of assisted suicide? People warn us that the vulnerable will be preyed on if we legalise this. It is always important to remember that this legislation would only apply to those people who need help: the majority of them are terminally ill. Between 1998 and 2008 Dignitas helped 840 people to die of whom 21% were not terminally ill. These numbers are not shockingly large and in the majority of cases it is terminal illness or quality of life that prompts people to do this – Daniel James (young, paralyzed rugby player) and Edward Downes (elderly conductor) are good example of people who were not terminally ill but felt their lives were not worth living.
And lots of Brits go to Dignitas each year. The last time this came up in the Lords, Lord Falconer said that despite the fact one hundred and fifteen Britons have accompanied someone to Dignitas,
In none of the cases has a prosecution been brought…despite the fact that the Director of Public Prosecutions has made it clear that he has considered…that the evidential requirements of the Act have been satisfied. Nobody…has the stomach to prosecute…The consequence is that there is no clarity.
It is not workable to have the policy of the law being contrary to its letter. Kay Gilderdale was prosecuted last year for assisting her daughter in England, but if she had gone to Switzerland she would not have been charged.
We are restricting people’s freedom to choose by not allowing assisted suicide in this country. The crucial statistic from Dignitas, which demonstrates that people’s choice is important above all, is that 70% of people chose not to return after they had been ‘given the green light’ (which means they are assessed and allowed to undergo treatment). And choice is not only important because people cannot kill themselves, it is important to ensure people do not mistakenly kill themselves. Lord Falconer noted that due to the total lack of statutory safeguards a number of the people who had gone to Dignitas had “bad back pain or diabetes and had no underlying terminal condition.”
This is not to endorse Lady Hale’s argument that “it may be justifiable for society to insist that we value their lives even if they do not.” Merely to assert that choice cannot be had whilst assisted suicide remain illegal; not real informed choice. Legalising this would allow people to make properly informed decisions, in this country, about something they already do. It would bring their spouses and friends and family inside the law, and the chances of people being exploited are no greater than now. Unfortunately the courts have consistently and firmly denied that the right to life under the Human Rights Act entails the right to death.
However the case of M might be a turning point. M is in a twilight land between being conscious but unable to inject herself and being kept alive only by a machine. The dilemma for the liberal is that without an unequivocal expression of her wish to die we would be sanctioning state murder: the NHS would be able to remove your life support when you are conscious on some level without getting absolute permission from you. Reassurance from your family that these are your wishes is not enough.
However, if she were able to seek assisted suicide and did so she would be denied: a person cannot consent to his own death under English Law. The reasons given by the courts are, in Glanville Williams, “a theocratic survival in our predominantly secular law.” Lord Goff said, “A profound respect for the sanctity of human life is embedded in our law…as it is in that of most civilised societies…That is why murder…has always been…the most…heinous of crimes.”
Other hallmarks of civilised societies have included absolute monarchy, slavery, and capital punishment. The real ‘hallmark of civilised society’ is liberty and during the 1960s Parliament legalised homosexuality, liberalised abortion, abolished capital punishment and reformed divorce. The criminalisation of assisted suicide is an anomaly, more so because suicide was decriminalised.
The law was designed to adjust and adapt to each set of circumstances. To declare that suicide is immoral and should therefore be illegal might be good theology but it is bad law. The law changes pragmatically. This is not to say that some values are not definitive, but when deciding whether something is morally wrong it is important to remember what Mary Warnock said in her report on surrogacy. After concluding surrogacy was morally wrong she nonetheless decided it should be legal because “it would be morally wrong to envisage a law which would intrusively curtail human freedom.”
As Nick Cartwright said,
…the debate can no longer be about whether or not we allow for assisted dying but how we regulate [it]…The law needs to afford respect to autonomy, allowing competent adult patients to make personal choices about…the manner and timing of their own death, regardless of whether or not others view these decisions as wise.’
Just as with abortion doctors would not be compelled, but patients would finally have a choice. The policy of the law already respects choice in the matter of drugs. The case of Kennedy held that where a drug dealer had given a syringe of heroin to someone already tanked up and the man took it and injected himself then the dealer was not responsible for the death of the man. The law also allows a doctor to over prescribe painkillers even if her knows that over the course of days or weeks that will shorten the patient’s life.
This case might be an opportunity for the courts to give Parliament the shove it needs to legislate to legalise assisted suicide. If M left a note of a living will or told someone in the presence of a witness she would want to die in more than a conversational way then this is a chance for a genuine breakthrough to occur. The state will no longer be able to force you to keep living; it would not longer be allowed to make you confirm to the values of its religion.