Assisted Dying: Morally Permissible and yet Unlawful

The arguments for and against assisted dying, commonly referred to as voluntary euthanasia, have been part of applied ethical discussion since the middle of the 20th century. Since MPs last voted conclusively against its legalisation in 2015 by 330 votes to 118, it has only taken a year and a half for the case to resurface.

Noel Conway, 67, a retired lecturer terminally ill with motor-neurone disease, has won the right to bring a High Court challenge over the 1961 Suicide Act. The Court of Appeal granted Mr Conway the right to a judicial review after overturning a decision made by two out of three High Court judges in an earlier hearing.

Since his diagnoses in 2014 Mr Conway’s quality of life has severely decreased. He requires a high level of care in order to complete basic tasks such as eating and getting dressed. Mr Conway uses a wheelchair to get around and is dependent on a ventilator overnight. It is his wish to avoid what he describes as an unbearable death by means of assisted suicide. He would wait to the point at which he has less than six months left to live and still maintains the mental capacity to make the decision.

He hopes to bring about a change in the law by showing that the 1961 Suicide Act is incompatible with Article 8 of the Human Rights Act (relating to respect for private and family life), and Article 14 (that protects against discrimination).

One can only feel an awful amount of sympathy for Mr Conway, his family, and the many other patients that face terminal diseases. Sadly, however, the chances of his success are very slim. This is mainly due to the Court’s commitment to the sovereignty of Parliament – a commitment they are right to hold. It is ultimately up to MPs in the Commons to determine the law and not two years ago did they reject a similar proposal for change to the blanket ban on assisted dying. For the Courts to act in opposition to Parliament it would, in the words of Lord Justice Burnett, be institutionally inappropriate.

Although the Courts are unlikely to change the law, there are many situations where there is a strong argument for assisted dying being the most moral outcome. The five conditions often laid by philosophical advocates of voluntary euthanasia are as follows: If that person

  1. Is suffering from a terminal illness.
  2. Is unlikely to benefit from a cure for that illness being found during what remains of their life expectancy.
  3. Is, as a direct result of the illness, suffering intolerable pain, or is dependent on others or technological life support for survival.
  4. Has an enduring, voluntary and competent wish to die (or has done so prior to losing the mental capacity to do so, expressed such a wish to die in the event (1) – (3) are satisfied).
  5. Is unable without assistance to end their life,

then there should be legal and medical provisions in place to allow for that person to be assisted to die.

These terms are very restrictive and so only apply to a small amount of people. Mr Conway would meet this criteria. In these very extreme cases an assisted death that prevents prolonged suffering for both the patient and their family, in an ideal world, is the best moral solution. I believe many forward thinking Europeans would agree with this conviction. It is at least humane to value in its most basic form the reduction of needless human suffering. In the UK there is evidence that assisted dying is a desired medical procedure with 7.36% of adult suicides being committed by terminally ill people, and around 25 people a year using the Dignitas assisted suicide clinic in Switzerland.

Realising the potential value voluntary euthanasia could have in certain cases like this is not difficult. The difficulty with the case for assisted dying lies in the nuanced differences between the act itself being morally permissible, and, the implications of said act becoming legalised. These two ways of looking at assisted dying tend to be conflated. Fundamentally, although in some cases assisted dying may be the morally right thing to do, it does not immediately follow that assisted dying should be legal. Ought does not always imply can.

The blanket ban on assisted dying stands as a safeguard to falling down the slippery slope that legalisation creates. Even if the criteria for assisted death is strict at first, it is not unlikely that these conditions would be loosened over time, resulting on pressure for the use of assisted dying in other traumatic medical situations. This is what happened when The Dutch courts legalised voluntary euthanasia in 1984 and went on to legalise non-voluntary euthanasia for infants in 1996.

Legalisation changes attitudes. Initially one may be surprised by a change in the law but sooner or later this change will become normalised. A prolonged change in attitude towards assisted dying could jeopardise many vulnerable people in society. The disabled; the elderly; the suicidal; – all at one stage could feel pressured towards euthanasia, either made voluntarily or not. From a medically ethical point of view this is not a thought we want to entertain. At a time when mental health is becoming more of an issue suicide should not be promoted by the government, the health service, or the courts.

Euthanasia is an extremely difficult ethical problem. Although it can be morally right in some independent cases – many of which, like Mr Conway’s, are undeniably traumatic – upon its institutionalisation a stark change in attitude bares undeniable risk for many vulnerable people. Conflicting values in moral theory and legal practicality are evident here as much as anywhere. Britain is unlikely to take such risks and should refrain from doing so until these problems have been shown to be reconciled.


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