Desmond Swayne is a former International Development Minister, and is MP for New Forest West.
The pressures are being ramped up yet again to legalise what’s being called ‘assisted dying’ for terminally ill people. No one can doubt the sincerity of those concerned, but the idea just hasn’t been thought through.
We are told not to worry, because there would be strict safeguards. But when you look more closely at these, you see they are little more than vague phrases. Let’s examine some of them.
Doctors can diagnose terminal illness and offer a prognosis, but their judgements and forecasts are vulnerable to error. Lord Mackay’s Select Committee, which looked at the proposal, was told of errors, including misdiagnosis of terminal illness, revealed in around one in twenty post mortems.
Doctors pointed out to the committee that prognosis is far from being an exact science and that, at a range of six months, it was, in the words of one doctor, “pretty desperately hopeless” (House of Lords Report 86-I (2004-05), Paragraph 118).
But doctors would be expected to do more than diagnose and offer a prognosis. They would be expected to make decisions on whether a wish to die was a settled wish, or whether there were any family or other pressures underlying a request. These are not medical matters, and many doctors are in no position to offer a knowledge-based opinion on them. Gone are the days when the ‘family doctor’ is a regular visitor to our homes and knows us and our families well.
We are told that doctors’ decisions would be referred to a High Court judge for confirmation. It’s one thing to ask doctors to give the Court their professional opinion on medical matters: they do this already in other contexts. But they cannot be asked to make judgements beyond these. If assisted dying were ever to be legalised, it must be on the basis that the sole decision-maker would be the High Court, and that doctors would be involved only to give the Court expert advice on matters strictly within their professional expertise.
Surveys of medical opinion reveal that there is no majority of doctors willing to participate in ‘assisted dying’. Among doctors who specialise in care of the dying nine out of ten say they would not touch it.
Oregon has encountered just this problem. People seeking lethal drugs there often have to shop around for doctors willing to assess them. Yet a doctor introduced to a patient solely for this purpose is ill-placed to make a knowledge-based assessment of a request.
The inevitable result is multiple prescribing by a minority of doctors. In 2019, one doctor in Oregon wrote no fewer than 33 prescriptions for lethal drugs. The involvement of doctors in ‘assisted dying’ simply hasn’t been thought through.
It’s easy enough to say a request for assisted dying must be voluntary. But how is such assurance to be found? The proposals being advanced are silent on this. Freedom from pressure is presented as an aspiration, but there are no minimum steps mandated to ensure that valid judgements can be made about it.
And it’s not just pressure from others. There’s also internal pressure – feelings of guilt in a terminally ill person at being a (perceived) care or financial burden on the family. Such feelings can be much harder to uncover, yet they can be a major factor in a request for ‘assisted dying’. Among people in Oregon who ended their lives through swallowing legally-supplied lethal drugs last year, nearly three out of five gave as one of their reasons that they felt a burden on family or caregivers.
It is proposed that assessing mental capacity for ‘assisted dying’ would follow the principles of the 2005 Mental Capacity Act (MCA). But the MCA proceeds from the principle that a person must be assumed to have capacity unless it is established that he or she lacks it. While this is a reasonable principle for the purposes for which the Act was designed, it’s a dangerous principle on which to proceed where people are seeking assistance to take their own lives. Given the gravity and irrevocability of such an act, the burden of proof surely needs to be the other way round.
That aside, there’s the matter of depression. It’s possible to have our thinking processes intact, but to have our judgement impaired either by illness or by circumstances. Transient depression is a common feature of terminal illness.
This serious issue cannot just be brushed aside, as some of the advocates of ‘assisted dying’ do, by saying that a degree of sadness is inevitable in someone who is terminally ill. We are not talking about sadness here, but about depression. The Mackay Committee was told of “episodes of reactive depression as a result of the diagnosis of a life-limiting illness” and that “there is a significant incidence of moderate to severe depression and anxiety at various stages throughout the course of many diseases” (House of Lords Report 86-I (2004-05), Paragraph 124).
Proposals for assisted dying skate over this problem. They require a doctor to consult an expert in capacity assessment only in cases of doubt. Yet Oregon’s experience has shown that this ‘if in doubt’ approach can fail. A study of a small number of persons expressing interest in ending their lives with legally-supplied lethal drugs found that one in three of those who had ended their lives in this way had been suffering from clinical depression, which had not been picked up by the assessing doctor or referred for an expert opinion.
It’s been proposed that an assisted dying law should empower the relevant Minister to issue ‘codes of practice’ to provide guidance on how those assessing a request should go about doing so. These codes would, however, be issued only after Parliament had agreed to change the law.
Yet the nature and robustness of safeguards is of the essence of any decision to agree to such legislation. Parliament needs to see how any proposed safeguards would work before, not after, agreeing to change the law. The proposals we have seen are effectively inviting Parliament to sign a blank cheque.
These are just some of the unthought-through problems in the proposals for licensing doctors to supply lethal drugs to terminally ill patients. There is nothing new about what is written here. These serious deficiencies have been drawn to attention time and again, but nothing has been done to resolve them. The time is well overdue for the assisted dying lobby to address these and other issues seriously, rather than to be wheeling out the same failed ideas over and again. Parliament deserves better.