In the Assisted Dying (AD) debate the opinion of the Christian Medical Fellowship matters. As an important member of the Care Not Killing Alliance (CNK) it provides solicitors and counsel to oppose changes in the law – the case of Tony Nicklinson being the most recent example. After that disappointing judgment, Dr Andrew Fergusson wrote a guest blog for CMF in which he congratulated the court on their ‘compassionate, but dispassionate’ approach. CNK, through counsel, intervened in Tony Nicklinson’s case, presenting a legalistic argument that stayed away from unpredictable matters of emotion, suffering and frustrated autonomy. This is understandable – what are the courts for, if not to provide an arena in which precedent can be examined, principles tested, and the wisdom of dusty tomes scrutinised in the context of modern medicine? CNK won the day. Tony Nicklinson’s application, seeking legal protection for whichever individual volunteered to kill him, was denied. Mr Nicklinson had wanted his case examined in a court of law, and, according to Dr Fergusson,
‘That dispassionate discussion has now happened, and disabled people are all the safer for this welcome result.’
Tony Nicklinson’s reaction to the judgment was deeply upsetting; his pain was visible and audible. But his determination was undimmed: he refused food – and only the onset of pneumonia, treatment for which he was allowed to refuse, gave him any form of control over his fate. His sadness must have presented a very human, emotional challenge to CMF members who were instrumental in denying him the judgment that he wanted. Without pretending to understand their motives, I would suggest that the theoretical protection of vulnerable individuals from coerced, but legalised, AD was sufficient to salve a sense of guilt. Policies and actions, however unkind they may appear on an individual basis, can be justified if the greater good is served. Indeed Reverend George Pitcher, writing in a Daily Mail blog, stated that TN’s suffering was a ‘…high but necessary price for a civilised society…’ This easy calculation, in which individual suffering is counterbalanced by future benefit, troubles me. I want to understand how, in the here and now, a Christian can comfortably engage in a ‘dispassionate discussion’ while the subject of that discussion man suffers unbearably.
Dr Peter Saunders, CMF Chief Executive, has written the following:
“The current law is clear and right and does not need fixing or further weakening. On the one hand the penalties it holds in reserve act as a powerful deterrent to exploitation and abuse. On the other hand it gives judges some discretion to temper justice with mercy when sentencing in hard cases. We should not be meddling with it.” [http://bit.ly/Rv3gvH]
In the word ‘mercy’ we see a softening, an appreciation of the suffering that patients and their families are experiencing. He appears to support leniency towards those who facilitate AD, but in ‘hard cases’ only. The duty to punish an illegal act is tempered by the manifestly unselfish nature of the family’s motivation, and the suffering that is visible to all.
This leads to two important questions: how do we define ‘hard cases’, and does a ‘merciful’ or lenient approach in such cases represent an implicit acceptance that AD is sometimes right?
There is no spectrum of ‘easy’ to ‘hard’ cases in the minds of patients and their families. For them, all are desperately hard. In the eyes of society however, the difficulty of each case is probably related to visibility in the media (the way the story is told) and articulacy of the patient and their family. If a compelling argument is put forward in favour of AD, the case becomes ‘hard’ in the eyes of the public and the legal/medical professions. They are hard because we see the pain in their eyes, faces and words, and we respond as any human must, with sympathy. The definition of ‘hard cases’ is therefore subjective, and cannot reasonably be used to decide who should receive mercy. Perhaps we should accept that all cases are hard. But if all cases are hard, shouldn’t all families or abettors receive mercy? And if all should receive mercy, the argument for legalisation has been won.
Guidance does exist to help to define which cases should be treated mercifully. Following Deborah Purdy’s wish for legal clarification in anticipation of her husband’s involvement in her own death (from multiple sclerosis), the courts agreed that the law was not clear. The Director of Public Prosecutions produced a list of factors that would make the prosecution of a someone involved in AD more or less likely. The six factors that reduce the risk of prosecution are:
· The victim had reached a voluntary, clear, settled and informed decision to commit suicide.
· The suspect was wholly motivated by compassion.
· The actions of the suspect, although sufficient to come within the definition of the crime, were of only minor encouragement or assistance.
· The suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide.
· The actions of the suspect may be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide.
· The suspect reported the victim’s suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide or the attempt and his or her part in providing encouragement or assistance.
Here then is a semi-formalised approach to the definition of ‘hard cases’. It is practical, individualised, and a sensible response to the steady trickle of hard cases that nature, in its cruelty, delivers to legal scrutiny. This is the status quo by which CMF have stood so steadfastly. In softening their attitude to suffering they have accepted a compromise. Such laudable détente represents a chink in the rather robust CMF armour that was on display during Tony Nicklinson’s case. It is, I would argue, an implicit admission that AD happens, and that AD is sometimes right, sometimes the kindest option, sometimes defensible.
I believe that CMF are having it both ways. While opposing the development of a framework in which death can occur legally for those who clearly want it, CMF has accepted that families who help such patients die should be let off. A merciful veneer softens a rigid adherence to principle.