What Falconer does not say about assisted suicide is even more worrying than what he does say

On New Year’s day, Lord Falconer (pictured) wrote an opinion piece for the Daily Telegraph with the specious title ‘A duty of care to our last days on Earth’. It was subtitled ‘Do Britain’s laws on assisted dying work, and if not, what should replace them?’

The piece was an advertorial for the much trumpeted (by the cheerleading BBC) publication of his ‘Commission on Assisted Dying’ final report this Thursday which he tells us will provide a ‘possible way forward, which addresses the need for safeguards’ for the legalisation of assisted suicide in Britain.

I have summarised his main points here along with my comments (but this is a long post so if you are short of time skip to the summary):

1. Our task was to assess whether the current law and policy towards assisting terminally ill or seriously disabled people to commit suicide works. And, if we think it does not, to consider if there is a workable alternative. We hope the report will both stimulate debate and guide policy-makers when making future decisions.

Falconer makes it sound as though someone in government was officially commissioning him to carry out this report. In fact he is a well-known advocate of assisted suicide and attempted unsuccessfully to legalise it in 2009 in an amendment to the Coroners and Justice Bill. His commission is actually a campaign strategy – suggested by Dignity in Dying (formerly the Voluntary Euthanasia Society) and part-financed by one of their patrons, celebrity novelist Terry Pratchett. Furthermore, nine of his twelve hand-picked commission members had previously expressed support for the legalisation of assisted suicide.

2. We heard ‘evidence from more than 40 witnesses and (considered) submissions from 1,200 individuals and institutions’.

What Falconer doesn’t tell is that over 40 organisations, including the British Medical Association,refused to give evidence to his enquiry on the basis that it was unnecessary, biased and lacking in transparency. He also fails to tell us that in 2005 a balanced House of Lords Select Committee carried out an official parliamentary Inquiry into assisted suicide. This covered some 246 Hansard columns and two volumes of 744 pages and 116 pages respectively, 15 oral sessions, 48 groups or individuals giving evidence, with 88 witnesses giving written evidence; 2,460 questions were asked and the committee received 14,000 letters. Falconer’s enquiry, in comparison, was not only unbalanced but miniscule.

3. We heard from disabled people who felt that the law on assisted suicide discriminated against them. While a non-disabled person might end their life without assistance (suicide has been legal since 1961), a person whose impairment makes this impossible is forced to choose between obeying the law (and therefore being denied an autonomous decision to end their life) or putting a friend, loved one or employee at risk of prosecution for assisting them. Tony Nicklinson, who was paralysed from the neck down by a stroke, expressed this sentiment when he described his life with locked-in syndrome.

What Falconer doesn’t tell us is that the same Tony Nicklinson is currently bringing a court case that has been described by his lawyers as a full frontal assault on the Murder Act 1965 (and not the Suicide Act 1961). Falconer, in answer to (my) repeated questions at the commission’s launch in 2010, eventually said that ‘assisted dying’ included only ‘assisted suicide’ and not euthanasia. But for Nicklinson to end his life it would require the legalisation of euthanasia (where someone actively ends his life) rather than assisted suicide (where someone helps him to kill himself) precisely because he could not kill himself even with assistance. This suggests that Falconer aims go beyond the legalisation of assisted suicide to include euthanasia as well.

4. No matter how much end-of-life care may improve, there is always likely to be a small cohort who will want to end their own lives rather than face a period of reduced function and independence in their final illness.

There have always been a very small number of desperate determined people who, whether they receive palliative care or not, wish to end their lives. Most of them are not even disabled or terminally ill. What Falconer does not tell us is that hard cases make bad law and that part of living in a democratic society involves accepting that there are certain ‘freedoms’ we cannot exercise because of the detrimental adverse effects a change in the law might have on others. The law, with its blanket prohibition on assisted suicide, is as it is to protect vulnerable people from exploitation and abuse by those who might have an interest, financial or otherwise, in their deaths.

5. As it stands, the system outlaws an action (assisted suicide) and yet frequently allows it to take place unpunished without employing any safeguards to protect and support people at a vulnerable stage in their lives. Between 2008 and 2010, 76 Britons ended their lives at the Dignitas clinic in Switzerland, in alien surroundings and often far away from their loved ones.

Falconer has highlighted the fact that a very small number (20-25) of British people go to Switzerland each year to end their lives at the Dignitas facility and that very few if any are prosecuted. What he neglects to tell us is that the House of Lords Committee reported that a Dutch-type law (allowing both euthanasia and assisted suicide) or an Oregon-type law (allowing assisted suicide only) in Britain would lead to 13,000 or 800 British deaths annually, a massive increase in these numbers. There may be abuses of the law, as there are for any law, but the current law which carries a blanket prohibition against assisted suicide acts as a very strong deterrent.

6. Commissioners visited the (Swiss) clinic and spoke to the people who ran it. They did not like much of what they saw. (So) should the UK adopt the model used in Holland, which allows a doctor to judge whether someone is ‘suffering unbearably’? People with psychiatric illness, the disabled and the terminally ill all might be considered eligible for an assisted death in that country. It also allows for young people aged 12-17 to request an assisted death, as long as the parents give their consent. Would that be acceptable to us in Britain? We doubt it. And would we want a system that required the ingestion of around 90 capsules of medication in a short period of time, often without the supervision or support of a doctor, as is the case in Oregon? We doubt that Britain would be happy to introduce such an approach.

Falconer cleverly rejects the Swiss, Dutch and Oregon models, despite the fact that Dignity in Dying have been campaigning for an Oregon-type law in Britain for several years. This makes him look cautious and is an attempt to disguise his full agenda. He does not however tell us what kind of law he would find acceptable apart from hinting at unnamed ‘safeguards’. But it is precisely the concern that safeguards will not work in restraining abuse that has led British Parliaments three times in the last five years to reject any legalisation of assisted suicide.

7. We also heard from Debbie Purdy, who has multiple sclerosis, who told us of her fear of ‘not taking the right quantity or quality of drugs and ending up in a worse situation than I would be in anyway’.

This is a similar argument to that used to legalise abortion (The CEO of DID Sarah Wootton comes with a wealth of campaigning previously for the liberalistion of Britain's abortion laws). If we do not legalise assisted suicide so that people can do it ‘safely’ they will do it ‘unsafely’. Debbie Purdy is a well-known pro-euthanasia campaigner with a chronic progressive disability whose life expectancy probably runs to decades. She has also said that she has no current intention of ending her life. It is interesting that Falconer should single her out as a case justifying a change in the law. It suggests that he wishes to extend assisted suicide and/or euthanasia to those who are not terminally ill. This would again take him beyond Dignity in Dying’s stated agenda. There is more than a hint here of incremental extension.

Summary

Falconer’s commission was ‘suggested’ by Dignity in Dying (the former Voluntary Euthanasia Society) and financed by one of their patrons. DID backs the legalisation of assisted suicide for mentally competent adults who are terminally ill and ‘suffering unbearably’. However their main arguments ('autonomy' and 'compassion') are equally used by those, like Nitschke and Irwin, with ostensibly more far-reaching agendas to justify the legalisation of both euthanasia and assisted suicide for those who are neither terminally ill, nor adults, nor mentally competent. This raises questions about their real agenda.

DID also backs an Oregon-type law, one which legalises assisted suicide but not euthanasia. Falconer, in contrast, tells us that his committee has concluded that the laws of Switzerland, Netherlands or Oregon would not be acceptable in Britain, yet judging by the examples he is using to argue his case his agenda seems more far-reaching than that of DID – extending to those who are chronically disabled (like Debbie Purdy) and those who would need euthanasia as opposed to assisted suicide (like Tony Nicklinson).

There are profound logical inconsistencies in what Falconer has said. Whether he will be clear and specific on Thursday about what he is actually advocating remains to be seen. But it would seem that he cannot have it both ways. He cannot have a law with more safeguards than that of the profoundly flawed law in Oregon and include people like Purdy and Nicklinson within its remit. And he cannot have a law with fewer safeguards than Oregon’s without putting the lives of thousands of vulnerable people at risk.

Falconer cannot hide behind hard cases, emotional arguments and imprecise terminology. He has to be specific about what ‘safeguards’ he is proposing and if his proposals are to have any traction at all they must be much better than those which have been repeatedly rejected by British Parliaments.

He also needs to define terms like 'assisted dying' and 'terminally ill' precisely so that we can understand what he is actually talking about.

His current bluster, vagueness and lack of precision make him look like a man with something to hide - a case of 'argument weak, shout louder'.

Judging by his record to date Falconer has set himself a very difficult task indeed.