Assisted Dying Bill: Is It Time for a Change in the Law?

Tim Locke

Disclosures

March 26, 2021

A bill to change the law on assisted dying began in Parliament in January.

The private members bill from Labour's Lord Falconer of Thoroton, a former Lord Chancellor under Tony Blair, is described as "A Bill to enable competent adults who are terminally ill to be provided at their request with specified assistance to end their own life; and for connected purposes."

Lord Falconer has described the current law as lacking compassion and in need of urgent change.

Its success or failure will depend on whether it gets Government support or whether MPs get a free vote on it.

The BMA is "currently opposed to all forms of physician-assisted dying". A member survey last year found 50% supported a change in the law on prescribing drugs for eligible patients to self-administer to end their own life, 39% opposed this, and 11% were undecided.

The Bill raises ethical concerns for doctors, and we'll hear from two doctors with differing views.

Dr Habib Rahman from Brighton is a specialist registrar in cardiology and general medicine.

Professor Raymond Tallis is a retired consultant physician in health care of the elderly, and now a philosopher and author.

Dr Rahman 

Dr Rahman believes medical accountability is a bigger issue in the debate than ethical issues.

He writes:

Though the medical profession holds an unparalleled level of trust in British society, there is an unremitting accumulation of evidence that this trust requires examination. The organisational duty of candour [a statutory duty since 2014], mandating that healthcare providers declare substantive errors and apologise, has its roots in the avoidable death of Robbie Powell in 1990, notable for the Powell family's extraordinary decades-long effort to obtain an apology from the doctors involved. The British High Court stunningly determined in 1996 that doctors had no legal duty to tell a patient's family the truth, a decision upheld on appeal in 1997. It is less well known that this decision was supported by the British doctors' union, the British Medical Association (BMA), with little outcry from the medical profession itself.

Any interval change is difficult to discern. When an organisational duty of candour was proposed in the wake of the Mid-Staffordshire Inquiry in 2013, the duty was opposed by the BMA, claiming that it would provide an additional administrative burden to GPs and that doctors' professional code was sufficient to keep them in check. Yet a 2017 paper published in the British Journal of Anaesthesia revealed that the records of 63 unplanned readmissions to an intensive care unit in London contained no evidence of a duty of candour discussion in any of the cases. And since a healthcare provider and its doctors' interests converge in cases of medical error, it is unsurprising that UK clinical governance systems are at best ineffectual and at worst, engaged in de facto cover-up.

Herein lies the crucial knowledge gap of the current House of Lords bill to legalise physician-assisted dying because, as with most discourse pertaining to the British medical profession, the moral nature of the doctors themselves is unquestioned. The patient's expression to end their life is heavily dependent on the information given by the healthcare practitioners. And how often is this given in a clear manner, taking account of all the available data and without time-pressures? Doctors are not immune to the use of cognitive shortcuts to make their job easier, as last year's evidence of blanket do not attempt resuscitation (DNAR) orders in long-term care facilities has shown. And what of the information on the DNAR forms themselves? It is common for 'multiple co-morbidities', to feature on DNAR orders, the logical unassailability obtains easily as this comprises close to 100% of the adult inpatient population. If even DNAR decisions are made in a sloppy and rushed manner, there is no reason why this wouldn't occur with physician-assisted dying as the decisions become commonplace and routine. The involvement of a witness in the creation of a formal statement would do little to affect these decisions. Doctors will always have dominance in defining the clinical narrative and only exceptional people such as the Powells, the Richfords or the Astbury family have the stamina to sustain such prolonged questioning of the medical profession to get to the truth of a matter. Who this witness would be and how they could assess for subtle coercion or informational chicanery is yet to be determined. 

Yet the evidence for the medical profession's abdication of responsibility to speak up when patients are put at risk, harmed, or even killed, is overwhelming. The common refrain of 'blame culture' as a deterrent is not plausible given that almost all doctors, rather than acting unenergetically, instead choose to do nothing. As Justices Irwin and May determined in 2019, the issue of physician-assisted suicide is, at its core, moral and not legal, and therefore requires trustworthy actors to achieve a good outcome. A profession that so routinely fails to protect patients within its time-honoured realm cannot yet be trusted to venture outside of it, hence the physician-assisted dying bill should not be introduced until doctors can offer good evidence that it takes candour and patient safety seriously.

Prof Tallis

Prof Tallis, however, has a different point of view. He was a former chair of Healthcare Professionals for Assisted Dying, a group that works closely with Dignity in Dying.

He writes:

The case for legalising assisted dying can be stated very briefly. Unbearable suffering, sometimes prolonged by medical care, and inflicted on a mentally competent dying patient who wishes to die, is an unequivocal evil. Not doing what has to be done to prevent this is unacceptable cruelty. What is more, the right to have one's own choices respected and to determine what is in one's own best interest is a sovereign principle of medical ethics.

Those who oppose assisted dying often do so on the grounds that the medical profession, or indeed society as a whole, cannot be trusted and that legalising assisted dying will bring us to the top of a slippery slope leading to some very dangerous places. This was why I myself was opposed until 15 years ago when a conversation with the late Joel Joffe opened my eyes to the growing body of evidence of the safe practice of assisted dying in other legislatures.

My fears have proved groundless. In recent decades, over 200 million people across Australia, New Zealand, Canada, and the USA have gained access to assisted dying. Laws are passed – following intensive parliamentary scrutiny – and, because the fears expressed by the minority who vocally oppose change do not materialise, none have been repealed. Indeed, assisted dying legislation has introduced more safeguards into end of life care than in the UK, where the current law poses significant dangers to dying people, their families and those who care for them.

The pandemic has not stopped people trying to access assisted dying overseas. If the police investigate these cases – and many go under their radar – it is usually after the fact, too late to protect the individual who died if something untoward had occurred. People may die prematurely because they have to be well enough to travel and there is no escaping the emotional and financial turmoil they are forced to endure.

Others take matters into their own hands in violent and distressing ways. These are not rare cases. The Office for National Statistics has published data that shows 14% of suicides registered in 2019 had a life-limiting illness documented as a contributory cause. The collateral damage of our failure to change the law is significant and we have a responsibility, as a society, to question how it can be justified.

Doctors are not infallible but the case for legalising assisted dying is not about doctors, it is about finding a way to respect the wishes of our patients. Whether it be illegal decisions about DNACPR, a reluctance to embrace duty of candour, or poor clinical governance, the common thread is that when things go wrong in medicine it is often because doctors have made decisions about people, not with them. How can we therefore claim that the best way to protect our dying citizens is by actively restricting their autonomy and rejecting the assisted dying laws that are proven elsewhere to work safely and as intended?

Ultimately the question of whether or not the law changes is a decision for society, and not the medical profession. Given that 84% of people back reform, it is a decision Parliament will not be able to run from forever. Recent surveys of medical opinion by the Royal College of Physicians, Royal College of GPs and BMA have all revealed there is no longer appetite in these organisations for opposition to assisted dying. Rather than invest our efforts into polarising debates it is time to move beyond fear and speculation and start learning from our colleagues around the world who have incorporated assisted dying into good end of life care provision.

Editor's note, 8 April 2021: This article was updated to correct the year of Robbie Powell's death.

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