The Terminally Ill Adults (End of Life) Bill is set to go to the vote on November 29. There are still a number of arguments that keep coming up on why the Bill should be voted down, including concerns over the vulnerability of the terminally ill, a worry about a “slippery slope” that sees the eventual expansion of the Bill’s scope, an argument over the poor state of the NHS and palliative care. Emily Jackson makes the case for why those arguments aren’t good enough. 

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It was always to be expected that opponents of assisted dying would engage in systematic and vigorous attacks on the Terminally Ill Adults (End of Life) Bill, introduced as a Private Members Bill by Kim Leadbeater MP, and due to be voted on on November 29. Nor is it surprising that this has involved a great deal of misinformation and scaremongering about practices overseas. Opponents and sceptics have mounted predictable arguments about threats to vulnerable people and the dangers of the slippery slope. In reality, however, the evidence from jurisdictions which have legalised assisted dying points in a rather different direction.

Most assisted deaths take place when the patient is in the final stages of dying from cancer, when there is no prospect of being a burden on your family for years to come.

The “vulnerability of the terminally ill” argument

One of the most consistent arguments made against assisted dying is concern for the vulnerable, and the fear that people might end their lives because they are worried about being a burden. There is no evidence of overuse among the vulnerable in countries where assisted dying has been legal for many years. More commonly, it is those who are relatively privileged, who have been used to being able to exercise control over their lives, who are more likely to opt for an assisted death. It is also possible, as in Kim Leadbeater’s Bill, to spell out that someone cannot be considered eligible only on the grounds of disability and/or mental disorder. Most assisted deaths take place when the patient is in the final stages of dying from cancer, when there is no prospect of being a burden on your family for years to come.

We often hear that every jurisdiction which has legalised assisted dying goes on to broaden the eligibility criteria, and loosen the safeguards. This is not true.

“The slippery slope” argument

It was also to be expected that opponents would claim that a Bill which confines access to assisted dying to people with capacity, who are terminally ill, and who voluntarily and in the absence of coercion express a clear, settled and informed wish to end their lives, represents the first step on a dangerously slippery slope. We often hear that every jurisdiction which has legalised assisted dying goes on to broaden the eligibility criteria, and loosen the safeguards. This is not true. The eligibility criteria have remained static in Oregon and Washington State for decades, and in Australia, there is no pressure to expand the restrictive laws which apply in six states.

In any event, the point of parliamentary sovereignty is that it would be up to parliament to determine whether any law should be changed in the future. Law reform doesn’t just happen spontaneously, when no one is looking, but would require a deliberate decision by our democratically elected representatives. Even if a future court were to make a declaration of incompatibility with the Human Rights Act, this just sends the matter back to parliament, for it to make a decision.

The argument about “the state of the NHS and palliative care”

A less predictable argument against assisted dying, but no less superficially persuasive, has been the claim that we cannot legalise assisted dying in the UK because the NHS is on its knees, and palliative care services are not good enough. Almost all of us will have had personal experience of how difficult it is to get an NHS appointment, and how broken the system can seem, and although palliative care in the UK is often excellent, it is also massively underfunded and its availability can be patchy.

In countries where assisted dying is lawful, people seek it even when they are receiving the very best palliative care.

While it is understandable that the Secretary of State for Health and Social Care would prefer not to add a significant policy change to all of the other challenges he faces in trying to fix the health and social care system, it is less clear that the parlous state of the NHS and of palliative care is a good reason to deprive patients who desperately want the option of an assisted death from having that choice.

Instead, the UK could follow the Belgian approach to legalisation, where improvements in palliative care, including increased funding, were an integral part of its euthanasia legislation. Indeed, in its report earlier this year, the Health and Social Care Select Committee found that, worldwide, the legalisation of assisted dying is often accompanied by a marked improvement in palliative care provision. In Belgium, for example, a request for an assisted death triggers a palliative care assessment, in order to try to work out what palliative or other care services might be able to eliminate the patient’s desire to die. Euthanasia becomes an option only for patients whose suffering can’t be relieved.

It is common for opponents of assisted dying to claim that people would not want assisted deaths if they had access to high quality palliative care, but again this is untrue. In countries where assisted dying is lawful, people seek it even when they are receiving the very best palliative care. People who have had access to excellent care in the UK – including Dame Diana Rigg and Dame Esther Rantzen – nevertheless have been clear that they wish to have the choice to end their lives, if their suffering becomes unbearable.

The “not enough debate” argument

The Bill’s opponents have also argued that there will not be enough time for proper debate and amendment of a Bill of this significance. But the Prime Minister has said more than once that he will make sure that parliamentary time is made available. For many years, in judicial review actions brought against the blanket prohibition on assisted suicide, judges have been saying that the question of the legalisation of assisted dying is properly for parliament rather than for the courts. Now that parliament has the opportunity to express its view, it clearly needs to make time to ensure that that view is properly debated, and that draft legislation is scrutinised and amended.

It is parliament’s job to make sure legislation is workable, and it is absolutely routine for Bills to be amended, sometimes substantially, as they make their passage through parliament.

The “let the judiciary decide” argument

There has been an interesting intervention from Sir James Munby, who used to be President of the Family Division of the High Court, specifically on the Bill’s requirement for a High Court judge to have to approve every case of assisted dying. As a retired judge, Sir James is well placed to comment on the Bill, and there are clearly a range of challenging issues that arise from this requirement. My own view is that it would be preferable if the judiciary were to play a role only in deciding complex or contested cases. Given that the majority of cases are likely to involve people in the very last stages of dying from cancer, it is hard to see what is gained by requiring a judicial rubber stamp. But this is exactly the sort of detail that can be reviewed and revised at the committee stage of the Bill. It is parliament’s job to make sure legislation is workable, and it is absolutely routine for Bills to be amended, sometimes substantially, as they make their passage through parliament.

Familiarity with assisted dying makes people less rather than more fearful of it.

The “not now” argument

Well-funded opponents of assisted dying are adept at coming up with a range of reasons why now is the wrong time to contemplate legalisation. “Not now” arguments are likely to be more persuasive with undecided MPs and their constituents than “not ever” claims that assisted dying is always morally wrong. But it is worth bearing in mind that in the long list of countries where assisted dying is lawful, there are very high levels of public support for its continued availability. Familiarity with assisted dying makes people less rather than more fearful of it. And if an ever-growing number of jurisdictions worldwide have been able to devise assisted dying legislation that commands widespread public support and confidence, why do we think that this would be impossible here?

All articles posted on this blog give the views of the author(s), and not the position of LSE British Politics and Policy, nor of the London School of Economics and Political Science.

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