Assisted Dying and Ethical Disagreements

The UK has a long track record of attempts to legalise some form of assisted dying or euthanasia, either through legislation or through court cases by which people seek to argue that existing legal provisions (especially the European Convention on Human Rights as incorporated into UK law through the Human Rights Act 1998) already imply a right to assisted dying of some sort. None of those attempts have been successful. UK judges have overwhelmingly taken the view that this is a question to be settled by democratic legislation, not judicial action.

No previous legislative attempts laws have succeeded either, but two attempts now underway (in England and Wales on the one hand and in Scotland on the other) look like they stand a good chance of passing laws to allow assisted dying for terminally ill adults.

There are still, in both parliaments, significant procedural stages which these Bills must survive in order for assisted dying to be legalized in the UK. Given this, and the great ferocity of public debate that has accompanied the processes, it is very hard at this stage to predict the outcome in either place.

What is a little clearer is a sense of the main points of disagreement that are at issue between the proponents and opponents of these two bills. Some of these are factual, disputing (e.g.) the effects on vulnerable people, or the possible costs of legalisation, both direct (e.g the financial cost to the health system, the psychological cost to clinicians, and the cost in time for judicial oversight) and indirect (e.g. on the provision of palliative care and alternative end of life treatment options for the terminally ill). I have little to say about those things here, though I have written about them elsewhere.

Some other points of disagreement are ethical. They reveal important ‘choice points’ which shape people’s approaches to the legislative question. Making those explicit will hopefully help empower participants in these debates to make a transparent and philosophically well-informed decision, rather than being driven (as I fear is currently often the case) by misinformation and by a lack of explicit reflection about the ethical drivers underpinning this debate. These ‘choice points’ cluster under two overarching questions, one about risk, and the other about respect.

The first big question is: when we make decisions about future risks, what risks should we take into account, and in what way?

Opponents of assisted dying laws point to certain dangers – e.g. that someone might be pressured into choosing this option by social or economic pressure, or that someone might die thinking they are terminally ill when in fact they weren’t, or at any rate weren’t as close to death as they thought – and take those dangers to be sufficient to justify the current prohibition on assisted dying. Proponents tend to argue that, alongside these eventualities, our decision should take into account the possibility (indeed, likelihood) of people undergoing substantial pain or suffering which would be avoidable for them if they had the option of an assisted death.

These contrasting approaches embody, I think, different attitudes towards the concept of precaution. Proponents of assisted dying assume that the law should be settled in a way that minimizes expected harms, taking all harms into account; opponents treat death as a harm, and assume that the law should embody a precautionary principle which seeks to prevent untimely death before we begin the business of calculating the costs and benefits of our policies in other terms.

To the opponent, it seems outrageous to think that there could be benefits in other respects which might balance out, and hence vindicate, people dying when they don’t want or don’t need to. To the proponent, it seems equally outrageous that substantial existing (and reliably predictable) suffering is treated as a price we have to pay to avoid a small number of (spectacularly bad but unlikely) instances.  It is easy for each side to paint the other as morally monstrous, put in these terms.

It might help to ask the following questions to clarify our ethical thinking here:

• What in general should be our attitude to the choice between absolute precaution and cost-benefit analysis when deciding how to manage future risk?

• How do we make our stance here consistent with the way we manage future risk in other domains of legislation and public life?

When we consider the right way to allocate healthcare resources, or what we should do to ensure transport safety, we tend not to take an absolute precautionary approach, but rather weigh up the cost of a given preventative measure in terms of the other harms we seek to avert, or goods we seek to promote, in the relevant area. Sometimes a new drug, even if for some people life-saving, is too expensive to be made available at public expense. Not every measure which makes trains a bit safer is the right thing to do, if it has too high a cost in terms of freedom of movement and economic activity.

If we think our stance concerning risk in assisted dying here should be different, why? Is there something ethically distinctive about an individual’s certain death which means that we must treat it differently? Is someone’s death ipso facto bad for them, and if so is it different to other bad things that might happen to them, e.g. because we think it is incomparably worse, or because its irreversibility changes how we should think about it? (What do we think about other irreversible procedures like hysterectomies?) When we are thinking about these risks, should our aim be to protect individuals from them, or to empower them to make their own decisions?

The second big question is: when and how does a proposed law communicate an ethical evaluation, and how far should that factor into our evaluation of that law?

Some opponents of assisted dying laws claim that they communicate the message that some lives are not worth living; this is a point of especial concern for campaigners against disability- and age-based discrimination. Part of the worry here is that this message being communicated and taken up will be harmful, perhaps in the terms described above, e.g. families will become happier pressurize elderly relatives into seeking an assisted death, or disabled people will internalize the message that their lives aren’t worth living and therefore choose to die when they otherwise mightn’t. Whether those worries are borne out is something that can be tested against the evidence (and here’s a small spoiler: there is no evidence to bear them out), but they are closely related to a further worry that is less epistemically tractable: these laws show disrespect for disabled or elderly people, even if they don’t in fact have the causal consequence of making those people more likely to die.

Proponents of assisted dying laws disagree with this line of thought, on various grounds. The laws proposed in the UK are focused narrowly on terminal illness (like those in the US and Australia), rather than on suffering more broadly (like those in Canada and Benelux). On the face of it they say nothing about either disability or death, and it is the opponents of those laws who tendentiously impute those derogatory meanings. Proponents also argue that the existing laws which prohibit assisted dying themselves communicate ethical evaluations which we should repudiate, e.g. covertly embedding a partisan religious view about the sanctity of life, or treating vulnerable people as thought they’re peculiarly incapable of making their own decisions about medical treatment or how to negotiate difficult familial, social and economic pressures. Put in those terms the debate has a tendency to degenerate into a stalemate, with both sides assuming that it is wrong for a law to communicate disrespect, and each construing the law they oppose as wrong for that reason.

It might help, again, to ask some questions:

• How exactly does a law communicate anything, and what settles the question of the content being communicated? Is it a matter of intention and interpretation (and if so should we focus on legislators, the whole population, or the views of specific ‘targeted’ groups)? Or does it come about in some other way that isn’t settled solely by the psychological facts about the various possible parties to the communication?

• Why is it bad for the law to communicate disrespect? (This is a point of shared ground between the antagonists in this debate.) Should we understand ‘being disrespected’ as another harm alongside those noted above, or does it represent a different kind of political problem, as a failure of legitimacy or democratic equality?

It is perhaps frustrating that what I have done here is just ask a long series of questions, rather than attempting to provide any answers. I do, unsurprisingly, have my own views about what those answers should be. But my point here isn’t to argue for those. Rather, my aim is to show that we can look at current developments in the UK about assisted dying and excavate, even in the midst of an ill-tempered and poorly conducted public debate, serious ethical disagreements that command respect. They are also disagreement about which there is plenty of excellent ethical and political philosophical writing we can draw upon, e.g. concerning the right attitude to risk, the ethical significance of death, the morality of communication, and the relationship between respect and democratic equality. I hope that making those connections clearer might bring a little more light to the matter as the UK’s legislative processes inch towards their conclusions.

Ben Colburn is Professor of Political Philosophy at the University of Glasgow, and a member of the Philosophers’ Consortium on Assisted Dying in Scotland.

Disclaimer: Any views or opinions expressed on The Public Ethics Blog are solely those of the post author(s) and not The Stockholm Centre for the Ethics of War and Peace, Stockholm University, the Wallenberg Foundation, or the staff of those organisations.