3 Jul, 13 | by Iain Brassington
Basingstoke/ New York: Plagrave Macmillan, 2013; 188+xx pp
Can there be anything new to say on the subject of assisted death of one form or another? One acquaintance of mine has suggested that there ought to be a five-year moratorium on papers about it, on the grounds that there almost certainly isn’t. At the very least, the presumption should be against publication – and it should be a strong presumption at that. I’ve got some sympathy, notwithstanding the amount of ink spilled by me on this very subject. Ahem.
Kevin Yuill, an academic at the University of Sunderland and occasional contributor to Spiked Online (edited by hack contrarian-by-numbers Brendan O’Neill (q.v.), who also provides a foreword and the cover blurb to this book), came to Manchester a few years ago to give a paper that purported to be a libertarian case against assisted dying. Now that looks new. Libertarians – intuitively – are for… well, fewer things being against the law. So for a libertarian to be arguing against legalisation of something, even when it’s consensual, could be an innovative move in libertarianism, or in assisted dying debates, or both at once. Now, I have to admit that his paper wasn’t well-received by the students. But a lot of time has passed since then, and it’s possible that the gaps in the argument have been filled, the weaknesses strengthened, and so on.
So then: how do things stand now? Is this the kind of book that should be allowed to break the embargo?
The first thing to note is that the book is not claiming to be libertarian. It is libertarian, but it’s not paraded. That, I think, is an improvement. But, sadly, it’s not nearly enough to save the book.
Yuill’s strategy is not always easy to determine, but – I think – there’s two main lines of argument. The first has to do with suicide; the second has to do with assisted suicide. (Before going further, it’s worth noting that Yuill seems at times to treat the terms “assisted suicide” and “assisted dying” as interchangeable, which they aren’t, and at other times to treat assisted dying as a form of assisted suicide, which is exactly the wrong way around. But let’s take him at face value.)
In respect of suicide, Yuill is sympathetic to the idea that it is more than a wrong – that it’s a sin (p 83). That, he thinks, is why a lot of pro-legalisation people favour that its availability should be circumscribed. (I have no idea how he draws that inference, but there you go.) He nods towards Kierkegaard here, but doesn’t seem actually to have read him, preferring a secondary source. For Yuill, suicide is a “meaningful” act – whatever that means – and should remain so; and his charge is that legalising assistance neutralises this: “The question of whether ‘to be or not to be’ becomes a medical rather than a moral question”. And by “moral”, Yuill really means something quite strong:
Legalizing assisted suicide is wrong because suicide should be an individual decision in order to assign responsibility, because it robs the purposeful ending of a life of its dramatic power and shields such an act from judgement. (p 83)
Whether or not the life in question is bearable is of secondary importance; what really concerns Yuill here and elsewhere is that we should be able to hold the suicide accountable – perhaps to praise, but also to blame and to forgive:
Suicide involves an individual voluntarily renouncing his own existence but in many cases, as G. K. Chesterton noted, renouncing the world. Of course, such an action requires our judgement upon it. (p 151)
More: allowing doctors to assist will “remove the moral taint from suicide” (p 40). This is simply vile – and, anyway, the claim of the legalisation camp is that there is no moral taint to begin with, and so nothing to remove. A person who wants not to be alive any more, and who seeks help, should not be blamed, and does not need forgiveness; it’s a piece of monumental arrogance to think otherwise. Yuill wants us to blame the defeated: I’ll say more on this in a moment.
(Moralising is an important ingredient of Yuill’s project: the very existence bioethics as a discipline, he thinks, “is a testament to a lack of a moral compass to guide everyday ethical decisions since the implosion of authority in the 1960s and 1970s” (p 76). Odd.)
Assisting in suicide is also something that Yuill criticises. One of the reasons for this is that he takes assistance to be endorsement of death, endorsement to be a devaluation of the life of the dying person, and devaluation of the life of the dying person to be a devaluation of the life of all people in that situation. Thus if “as is true of most supporters of assisted suicide feel [sic], only suicides in very particular conditions should be assisted, the lives of those fitting the criteria, whether or not they choose assisted suicide, are deemed expendable” (p 128). In the same way, “[s]aying that people who suffer from, say, multiple sclerosis should have the right to legal assisted suicide, [sic] implies that all sufferers of MS live fairly inferior and expendable lives.” (p 38). Must we accept this, though? There’s no obvious reason to think we should. For sure, it might be that a lot of people think that life with MS is inferior to life without it – given the choice, I wouldn’t be indifferent, and I guess a lot of people who have MS would prefer that they didn’t as well, which implies that a life with MS is inferior to one without. That, in fact, is exactly why we tend to applaud research into prevention and cure, and why we think that drugs to ameliorate the condition are desirable. In the absence of a cure, it might be that some sufferers do come to believe that the quality of their lives falls so far short of what is tolerable – so inferior to a pre-symptomatic life – that ending them is desirable. Such a belief may be perfectly reasonable: each of us probably has a line below which we would not want to fall.
Does it follow from this that we think that MS sufferers’ lives, or the sufferers themselves, are expendable? Not a bit of it. Does saying that individuals should be able to seek assistance to die imply that all people in a similar situation are expendable? Of course not.
It’s possible to help someone do something without ever thinking that it’s a particularly good idea – it might be the least bad, for example, which is hardly an endorsement; it’s possible to endorse someone’s desire to die precisely because one holds them and their views in high esteem; and there’s no reason at all to think that helping one person to die tells us anything at all about one’s attitude to others with the same problem. It’s hard to avoid the feeling that Yuill simply hasn’t thought things through, and that either he can’t distinguish between a person seeking to die in the face of illness or disability as a token, and people seeking to die in the face of illness or disability as a type – or he assumes that noone else can. (I think, on reflection, that this latter alternative is the more likely, given that on p 128 he’s at pains to show that he’s not reducing persons to mere biology – even to the extent that he’s willing to say that the concept of the soul shouldn’t be dismissed out of hand.)
Of course, Yuill is not daft enough to deny that people might prefer not to be alive. This, though, doesn’t require the legalisation of assistance, he thinks: anyone has the freedom to end his life – all he has to do is stop eating. If you happen to be so disabled that you can’t take an overdose on your own behalf, don’t worry! You can always refuse nutrition and hydration (p 123) – your death will be unnecessarily unpleasant, but it’ll only take a few days at most, and then we can get on with the important business of judging you!
It’s not just suicide and its assistance that comes in for criticism: it’s the people involved too. For Yuill wants us to think that proponents of legalisation are not only mistaken, but so mistaken that they’re barely worth a counterargument. In chapter 3, he advances the thesis that one of the roots of the legalisation movement can be found in a suspicion of medical technology. And this means that the veneer of liberal humanism that defenders of legalisation of assisted dying display is only a veneer; they are, in fact, “enemies of scientific progress and rationality” (p 64). Blimey! Presumably, people who want no more medical intervention for themselves are also intellectually suspect, for the same reasons. Neither is Yuill too bothered by the fact that he attributes to Daniel Callaghan a suspicion of medical technology on p 74; for Callaghan is an opponent of legalisation, and is therefore, even if he is wrong about medical technology, either not an enemy of reason, or not the kind of enemy whose enmity matters.
(Actually, this isn’t the only inconsistency. On page 131, he accuses those who would defend legalisation but deny assistance to some of “patronizingly tell[ing] those who do not fit the [legal] criteria [for assistance]… that their reasons for wanting to end their lives are wrong.” This is despite having claimed that passing judgement is vitally important. And he doesn’t seem to notice that one can perfectly coherently defend the principle of assistance without being happy with any and every request, or any and every legal instrument allowing it.)
So much for that: but there are other claims that Yuill wants to advance that are much more libertarian in flavour. One of the objections to assisted suicide he advances is that it would make it more regulated – which is, apparently, a terrible thing. Notwithstanding what was said earlier in the book about assistance in dying, by p 134 he’s decided that doctors helping people to die can be a spontaneous act of kindness, and that therefore the state shouldn’t be involved.
By thrusting its unwelcome attention into the deathbed scene, legalization will, ironically, jeopardize spontaneous acts of kindness by doctors in the last few hours, days or weeks of life. […] Such acts of kindness are threatened by paperwork and safeguards to protect the vulnerable. Given that death will be the become the business of physicians, they will, for their own protection be unwilling to lend a hand in cases where the patient has not completed the paperwork properly. […] If we make death a treatment, kindness will be secondary to established procedure, paperwork will have to be kept and the whole thing subject to inspection.
Yep: you read that correctly. Having spent a long time arguing that we shouldn’t help people to die, Yuill is now claiming that if we are going to help, it should at least be in a completely unregulated manner and that regulation is a threat, and complaining that legalisation might actually lead to fewer instances of assistance. That, it seems to me, is pretty bizarre.
And then things get even stranger. On pp 142-3 we encounter what I can only assume is supposed to be a gauntlet being thrown down (or a parody): we should allow, with minimal regulation, the sale of deadly drugs to the public. “Such a solution,” apparently,
obviates the need for the legalization of assisted suicide whilst assuring all competent adults of equal liberty. The very few who would take the option would not need the blessing nor the assistance of a doctor… Suicides would take all moral responsibility for their actions and such a measure would also undermine the trend of restricting ostensibly self-destructive behaviour, like drinking, smoking and eating too much.
Note the curious obsession with being able to hold people responsible again (responsibility is not a product of liberty on this rather moralistic account, but a reason to value liberty), and the almost inevitable moan of the Spiked contributor that good things are under attack by puritans who have declared war on fun. (Seriously, they’ve said that.) Besides: selling poison without restriction: what could possibly go wrong with that?
The really puzzling thing about this, though, is that it’s a “solution” to the problem of assisted suicide that is available only to some. Even if deadly poisons were available at supermarkets, at least some people would not be able to get them, or to self-administer them, because the nature of their illness or disability prevented it – and at least some of those people would be looking for a way to die. Neither, by Yuill’s lights, would it be morally or legally acceptable for others to go and buy the poison on their behalf, or to help take it – that would be assistance. We’re back to the idea that the severely disabled can just starve. In other words, Yuill’s world is rather like the one we live in now, except with more strychnine in people’s groceries.
There’re other quibbles. The book is, in places, outright sloppy. Alan Westin’s theory of privacy is described as “valuable” n p 133, but there’s not so much as a thumbnail sketch of what that theory is in the text to aid the uninitiated, and I can’t find anything in the bibliography to help – the first note after Westin is mentioned comes much later in the paragraph, and refers to documents that, as far as I can see, don’t mention Westin. (And the URL for one of them is wrong, too.)
I’ve a personal interest to declare on the citation front, because I don’t think I’ve ever appeared in the index of a book before, and I do here. But I’m misquoted! Or, rather, there’s an occasion on p 56 when I’m quoted accurately, but the citation only appears at the end of the paragraph, a couple of sentences after the end of the quotation; and, vitally importantly, those sentences are not paraphrasing me, but are saying things that I have not said, and things that I would not say. That’s a shabby move to pull. (See?)
Worse is the treatment meted out to George Annas and Jill Densberger on p 140. Yuill is referring here to a case that I presume is Re E (Medical Treatment Anorexia)  EWHC 1639 (COP) – he doesn’t actually give the case reference – in which the Courts ruled that an anorexic woman, E, lacked capacity to accept or refuse medical intervention. As an aside, he takes this as an opportunity to have a swipe at the courts using the Mental Capacity Act to decide whether or not a life is worth living, when Re E was nothing of the sort. But, anyway… Here’s what looks like an important passage:
Of course, Justice Jackson questioned the competence of E to make such a decision [about whether or not to be treated] but, as George Annas and Jill Densberger argue, ‘[t]he vagueness of this definition, coupled with the dearth of legal literature on the subject make competence determinations ripe for arbitrariness and pose a danger to individual liberty.’
One could be forgiven for thinking that Annas and Densberger were criticising the Re E ruling, or the Mental Capacity Act more generally. But their paper was published in 1983, so that can’t possibly be the case; and even if they were right then to say that there was a dearth of legal literature on competence then, to use that line in respect of a case thirty years later is, at best, highly misleading.
I could say more about the use of sources, in fact. Petty, annoying things. Like the way that Seneca is quoted on p 54, “who famously said to an old man complaining that he longed to be free of his troubles ‘[...] Your neck, your throat, your heart are all so many ways of escape from slavery… Do you enquire the road to freedom? You shall find it in every vein of your body.'” But Yuill is misrepresenting Seneca here, as is clear from the text from which the quotation is taken. Yuill doesn’t go there, though, instead citing Al Alvarez’ The Savage God. A fine work – but if you’re going to quote someone approvingly, then you should at least go to the primary source – which is, in this case, De Ira (book III, § xv, if you’re interested). A trip to the library should have furnished that, and the all-important context. And even if you can’t get to a library, that’s neither an excuse nor a problem. I’m not the sort of person who has Seneca on his desk, but locating the passage took about 45 seconds. (Well to be honest, I did happen to have Seneca on my desk when reading this passage… but not De Ira, so the point stands.) If you’re going to quote something, even indirectly, you should read it – the risk is you’ll just look a bit silly if you don’t. (By the way: Seneca doesn’t get a mention in the index, which means, I think, that I am officially more important than he.)
I could go on. There’s barely a page of my copy that doesn’t have objections scrawled in the margin. There’s no getting around the fact that Yuill hasn’t managed to go much beyond the paper that left the Manchester students so cold a few years ago. He’s just extended it. The threadbare argument has simply been magnified.
Just as a sidenote – I’ve completed this review while staying with friends. I explained to my host what the argument of the book was. “No,” he said. “Just no.”