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How Not to Argue against a Proposed Law

5 Jun, 14 | by Iain Brassington

Yes, yes: it’s tedious and internecine, but it’s almost a year since I had a pop at Kevin Yuill’s book on assisted dying; how about an update?  Well, conveniently, there’s this, in which he tries “to convince my fellow liberal minded atheists to reconsider their support for legalized assisted dying”.  OK, then.  First up, this isn’t a pro-legalisation post: I’m much more interested in looking at the arguments presented in their own terms.  I think they’re bad; but that is to do with their form rather than their content.  Indeed, one of Yuill’s opening moves is something to which I’m sympathetic: in respect of Lord Falconer’s latest Bill to legalise assisted dying, he points out that

the chief sponsoring agency (Dignity in Dying) lamely differentiates between the dying (those with six months or less to live) and those with more time.
If the latter ingest poison in a room by themselves – well, that’s suicide.  But if those with less than six months take poison with the intent to end their lives, that is not suicide at all but <ahem> assisted dying. Nope, me neither.

I agree that the six-month time limit is arbitrary, and probably morally indefensible.  But…

*deep breath*

But note how Yuill botches even this point.  For one thing, he doesn’t say where DiD draws the distinction – there’s no link -and so checking it, and its context, is needlessly difficult at best.  But he’s trading on the idea that suicide and assisted dying are exclusive terms, as though being assisted to commit suicide isn’t a kind of assisted dying – which it is.  What the Bill does, in essence, is to make lawful something currently unlawful – to wit: assisting suicide – in certain specific circumstances.  Section 4 (5) is clear that noone would be permitted to administer life-ending treatment to another person, so we are clearly talking about suicide here, even if the person about to die has less than six months to live.  So when Yuill points out that “what is proposed in the Falconer Bill (which is based on the Oregon legislation), to use plain English, is suicide – and that is what this is all about”, everyone else in the world is perfectly entitled to nod vigorously and tell him that we already kind-of-know that.

You’ll notice that Yuill has conceded that Falconer’s Bill is modelled on the law as it stands in Oregon; and he concedes further that

[t]here is little evidence that, in Oregon, vulnerable people are dragged or pressured into assisted suicides, as is sometimes alleged by opponents of assisted suicide.

All the same:

But Oregon is not where to look if you want to see what an entire country – not a small part of it – looks like when voluntary death is accepted as a principle.

He thinks we should look to Holland or Belgium instead.

I’ll let that sink in for a moment.  When analysing how a proposed law modelled on the law in Oregon might work in practice, we should not look at what happens in Oregon.  We should look to jurisdictions with different laws, framed in a different legal tradition.  I can’t quite get my head around how one might make that kind of methodological faux pas.  Indeed, I’m not sure that it’s a faux pas at all – it could just as easily be a deliberate distortion.

For Yuill, though, the analogy with Holland and Belgium is important, because in his mind it demonstrates that the Falconer Bill would lead to us permitting assisted dying based on a broken heart.  I leave to one side whether or not a person should be allowed to seek assistance on that basis – this isn’t that kind of post.  Rather, I shall simply note that that would not be permitted by the Falconer Bill.  One wonders whether Yuill has actually read the Bill in question – it’s neither long nor complex – or just decided to write a critique on what he thinks it might say.  The laws in Holland and Belgium are quite different – Belgium’s law, in its earliest form, didn’t permit assisted suicide at all.  It’s hard to see how they’re relevant at all when it comes to the legal argument.

When it comes to the moral claims, of course, we don’t have to be bound by jurisdictional boundaries.  Maybe that makes the difference?  If the argument for legalisation is based on autonomy, and that is universally valuable, then we might have a moral reason to expect laws to permit assisted suicide for trivial reasons.  Except that… well, the arguments for assistance aren’t really based on autonomy – not straightforwardly, anyway, and not in the way that’d facilitate Yuill’s fantasies.  After all, autonomy doesn’t mean that you can demand anything.  To have the right to assistance in dying doesn’t mean that you can enforce that right; it’s more along the lines that the assistant has a permit to assist.  So the worry that

Anyone, on the basis of autonomy, ought to be able to end [their life] at any time with our help and approval

is simply false – and fairly obviously so.  First, the permit is not for any action by the suicide.  Second, and more important, autonomy does not mandate anyone else’s approval of my autonomous actions, much less their help.  Yuill is fighting a straw man here – and I’m not sure that he’s come out the better from the skirmish, to be honest.

One last thing: what about compassion?  Well:

Doctors should continue to despatch the few (and getting fewer as pain control improves) who suffer needlessly in the last hours or days of life. But compassion is not honouring, as this law will force us to do, suicidal wishes.
The truly compassionate [...] respond to the suicidal with assurances that their lives – no matter how wretched they feel them to be and no matter how much time is left – continue to have value.

The problem with this last sentence is that, no matter what value others might assign to a life, cases of assisted suicide almost by definition only arise when the person who wants to die has set a certain value on his life and whether it’s worth keeping.  Suicide doesn’t even imply that the person who wants to die denies that his life has value – it could easily simply mean that avoiding or ending suffering is more desirable.  Reassure all you like, but it really makes no difference – unless Smith’s evaluation of Jones’ life is supposed to trump Jones’.  That’s a really strange thing for a professed libertarian to say, though – and I don’t think that you have to agree with my pervasive suspicion of libertarianism to accept that point.  As for the claim that anyone would be forced to honour suicidal wishes: we’ve just covered that.  No.  They.  Won’t.

And also… whoa there!  Doctors should continue to dispatch those who suffer needlessly?  Really?

Note how there’s no appeal to this being in accordance with the patient’s wishes here.  Maybe that’s a genuine oversight – but in a piece that’s ostensibly about, and arguing against, a law to allow Smith to help Jones kill himself if and only if Jones wishes, a statement that Smith may, and ought, to kill Jones anyway that makes no reference at all to Jones’ desires is quite astonishing as oversights go.  And if they should dispatch others, wouldn’t it make sense for it to be legal?  It’s strange to say that one might have an obligation to do something and yet rightly face prosecution for it.  But even putting that aside, to argue in favour of a version of euthanasia but against (legal) assisted suicide puts Yuill’s position quite close to the original Belgian one – which makes his invocation of Belgium as an example of all that’s wrong highly puzzling.

One might almost think that he hadn’t really thought about this at all.  In a sense, that’s a much more attractive interpretation than the thought that he had thought about it, and that this was the best he could come up with.

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  • David Albert Jones

    Assisting people who are suicidal

    I would like to thank Dr Brassington for distinguishing so clearly between the issue at stake at this debate (i.e. the proposal that assisting suicide be legalised for certain categories of suicidal persons) and the arguments presented in favour or against this proposal, in this case by Dr Yuill. When teaching logic to
    undergraduates a key moment is when they recognise that, whereas a sound argument always supports its conclusions, an unsound argument (unsound either because invalid or because valid but based on a false premise) neither supports its conclusions nor impugns them. This is true whether the poor arguments are one’s own or those of another. Bad arguments are simply uninformative arguments. They may indirectly tell us something about ourselves (if we are attracted to poor arguments of one kind or another) but they do not tell us about the world. For example if, for the sake of argument, we were to suppose that Brassington had shown that all of Yuill’s arguments were unsound then this would show only that Yuill was a poor advocate, not that his conclusions were necessarily false. This is well expressed in the title of the blog post, “How Not to Argue against a Proposed Law”.[1]

    I will not comment on Yuill’s book, as I have not read it, but Brassington has indeed shown the weakness of the some of the arguments Yuill puts forth in his “atheist’s prayer on assisted dying”.[2] Yuill’s language does not help here but the most obvious way to take his comment about doctors “despatch[ing] the few”[2]
    is as a reference to covert euthanasia (and not explicitly limited to voluntary euthanasia). If so, then Brassington is right to show up the inconsistency of attacking the current proposals before the House of Lords (which would not legalise euthanasia but would legalise assisted suicide) by appeal to the experience of Belgium (which legalised euthanasia in 2002 but did not include provision for assisting suicide at that time[3]).

    Brassington is also acute in recognising that this position (accepting euthanasia but not assisted suicide) need not embody a logical contradiction. Someone could consistently favour legalising
    euthanasia but not support legalising assisted suicide (for example, in the Netherlands it is sometimes argued that euthanasia is preferable because allowing people to self-administer lethal drugs is more likely to lead to complications, to painful and messy botched suicide attempts which have to be finished off by euthanasia by a qualified physician[4]). What is inconsistent is not the preference of euthanasia over assisted suicide but the apparent acceptance of a form of euthanasia while invoking Belgium, which practices euthanasia, as a warning against proposals for England and Wales (and indeed against parallel proposals in Scotland[5]), which do not even include euthanasia. Perhaps Yuill does not mean to advocate a form of euthanasia, but if not then he does not expresses himself very well.

    Having said this, Brassington does not give Yuill credit for the points he makes against Dignity in Dying. Brassington states that Yuill “doesn’t say where DiD draws the distinction – there’s no link -and so checking it, and its context, is needlessly difficult at best”. In fact there is a section on “assisted dying” very clearly signposted on the front page of the website of Dignity in Dying,[6] so it is not the kind of “needless difficult[y]” that would lead one to break out into a sweat. On that page (and in multiple statements elsewhere by spokespersons of DiD or of its sister organisation Healthcare
    Professionals for Assisted Dying[7]), assisted dying is stated to be “not the same as assisted suicide”[6]. This sentence is somewhat ambiguous as denying equivalence of terms is compatible with one term being a specific form of the other (a lion is a mammal but “a lion” is not the same as “a mammal”). However DiD seem to mean more than this and, on another page, they say that assisted dying is not assisted suicide because “assisted suicide enables someone who is not dying to choose death over life”[8].

    It would have been helpful for Yuill to have provided links for DiD’s argument, but his target is relevant and his argument is sound (simply the exposing of a non sequitur) “But if those with less than six months take poison with the intent to end their lives, that is not suicide at all but assisted dying.”[1] Brassington seems to assume that no-one would disagree that “we are clearly talking about suicide here, even if the person about to die has less than six months to live”.[1] However this is denied explicitly by DiD. So when Yuill points out that “what is proposed in the Falconer Bill (which is based on the Oregon legislation), to use plain English, is suicide”[2] it may be that “everyone else in the world is perfectly entitled to nod vigorously”,[1] but DiD seemingly would shake their
    heads complaining about those who “use the terms ‘suicide’ and ‘assisted suicide’ to define the actions of mentally competent, terminally ill adults who request a prescription for life-ending medication from their doctor”[8]. Another objection to the word suicide is that “The suffix ‘–cide’ means ‘to kill’ and denotes illegal or egregious behaviour such as ‘homicide’, ‘genocide’ or ‘infanticide’”.[8] Thus, according to DiD, not only is the term “suicide” inapplicable but so is the term “killing”. They effectively argue that someone who deliberately takes “life-ending medication” and succeeds in ending his life has not killed himself because the word “kill” denotes actions generally frowned upon by society. I think this argument deserves “No, me neither”.[2] Non sequitur.

    Brassington also goes too far in saying that “It’s hard to see how they [Holland and Belgium] are relevant at all when it comes to the
    legal argument”.[1] It is surely not hard to see why the experiences of these jurisdictions are relevant to the proposal to legalise assisted suicide. There are very few countries in the world that have legalised assisted suicide, and to my knowledge we have data only from five: the Netherlands, Luxembourg, Switzerland, a handful of States in the United States, and Belgium (which has come to interpret its law as permitting physician assisted suicide). Three of these countries (the Benelux countries) also allow euthanasia, but euthanasia is arguably itself a form of “assisted dying” (indeed in Lord Joffe’s Patient (Assisted Dying) Bill of 2003
    the term assisted dying explicitly included “the attending physician… ending the patient’s life”[9]). The experience of
    the Benelux countries is thus doubly relevant to arguments about the possible impact of “assisted dying” on the wider culture.

    On the other hand, as the model for Lord Falconer’s legislation is Oregon, that state has a more immediate relevance and it is
    wrong of Yuill to dismiss it. It is relevant, for example, that over time there seems to have been an inexorable rise in the number of lethal prescriptions provided in Oregon (readers should be aware that figures for actual deaths for 2013 are not yet complete). It is relevant that, since the introduction of the law in 1998 the proportion of cases referred for psychiatric evaluation has declined from 27% of cases (4 out of 15) to 2.6% (2 out of 77), despite the
    fact that request for suicide is strongly associated with depressive
    illness. It is of arguable relevance that Oregon has a high suicide rate (roughly twice that of the United Kingdom), and an especially high rate of suicide among over 65s, and that since the introduction
    of the act this non-physician-assisted suicide rate has not declined (as people have had the option of a physician assisted suicide) but has also increased, indeed by 30%.[10][11]

    Yuill is at fault for dismissing the Oregon data and giving preference for the evidence from Belgium and Netherlands. Nevertheless, with so few countries having legalised assisted suicide it would seem irresponsible not also to consider the evidence these countries provide (with due caution of a “post hoc non ergo propter hoc” kind). This is particularly so in relation to research done in the Netherlands and Belgium which, to my knowledge, has not yet been done in Oregon (for example systematic research on end-of-life decision-making by physicians including the prevalence of involuntary ending of life by the use of sedatives).

    One final philosophical point, Brassington states that “Suicide doesn’t even imply that the person who wants to die denies that his life has value – it could easily simply mean that avoiding or ending suffering is more desirable. Reassure all you like, but it really makes no difference – unless Smith’s evaluation of Jones’ life is
    supposed to trump Jones’. That’s a really strange thing for a professed libertarian to say…”[1] As it stands Brassington seems to identify what “has value”, what is “desirable”, and the conclusion of an “evaluation”, and also seems to imply that suffering is not to be included in the “evaluation” of the “value” of life (i.e. that the “value” Yuill speaks of is necessarily net value, as it were, rather than gross value). These points are all contentious. Nevertheless, the question in relation to assisting suicide is, in any case, not
    what value a person puts of his or her own life but precisely what value the would-be assistant places on that life. Furthermore, if this kind of “assistance” is to be licenced or countenanced by society, with or with various possible conditions or qualifications, a question also arises as to what is implied by this public approval and by these particular qualifications.

    As Brassington notes, the issue is not one of autonomy, “it’s more along the lines that the assistant has a permit to assist”[1]. If this act of assisting is to be responsible (rather than unthinking or automatic) then it will require some kind of independent evaluation of the person’s request. It is not that “Smith’s evaluation of Jones’ life is supposed to trump Jones’”, but that Smith must take responsibility for his own decision to assist and must therefore decide whether facilitating Smith’s suicide would count as “assisting” him. Where a society permits such a decision this will typically be within certain parameters some of which may also have implications for the rational grounds of the evaluation e.g. the requirement that a person has a life-shortening physical condition. I have pointed out elsewhere that this reasoning has implications also for how one makes decisions on behalf of someone who is
    not in a position to make a suicidal request.[12] There is a logic common to assistance in suicide and voluntary euthanasia and both acts have implications for the reasonableness of non-voluntary ending of life. This fits with the evidence we have that non-voluntary ending of life by physician occurs in the Netherlands and in Belgium to a greater extent than it does in the United Kingdom. The research base is not in place to provide such evidence from Oregon one way or the other.

    Yuill should not, therefore, be criticised for suggesting that there is a link between the proposal of permitting assisting suicide and the practice of euthanasia nor for suggesting that we consider Belgium and the Netherlands before legalising assisted suicide. We should look before we leap and, in relation to “assisted dying”, one of the regions to which we should look is that of the Benelux countries, without of course ignoring whatever evidence we can glean from
    Oregon.

    [1] http://blogs.bmj.com/medical-ethics/2014/06/05/how-not-to-argue-against-a-proposed-law/#more-2785

    [2] http://blog.noeuthanasia.org.au/2014/06/an-atheists-prayer-on-assisted-dying.html

    [3] The Belgian Act on Euthanasia of May 28th, 2002 sections
    6-13, English translation available at Ethical Perspectives 9 (2002)2-3:182-188
    http://www.ethical-perspectives.be/page.php?LAN=E&FILE=ep_index&ID=33

    [4] J.H. Groenewoud, A. van der Heide, B.D. Onwuteaka-Philipsen et al. ‘Clinical Problems with the Performance of Euthanasia and Physician-Assisted Suicide in the Netherlands’ N Engl J Med 2000; 342:551-556 February 24, 2000DOI: 10.1056/NEJM200002243420805

    [5] Assisted Suicide (Scotland) Bill introduced by Margo MacDonald MSP on 13 November 2013

    [6] http://www.dignityindying.org.uk/assisted-dying/

    [7] http://www.hpad.org.uk

    [8] http://www.dignityindying.org.uk/blog/assisted-dying-not-assisted-suicide/

    [9] Patient (Assisted Dying) Bill [HL] HL Bill 37, section 1(2)

    [10] Death with Dignity Act Annual Reports http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Pages/ar-index.aspx

    [11] D.A. Jones ‘Assisted dying is not the same as euthanasia’ BMJ rapid response to R. Tallis ‘Assisted Dying is Not the Same As
    Euthanasia’. BMJ 2014;348:21. http://www.bmj.com/content/348/bmj.g3532/rr/701150

    [12] D.A. Jones ‘Is there a logical slippery slope from
    voluntary to non-voluntary euthanasia?’ Kennedy
    Institute of Ethics Journal 21 (4), December 2011: 379-404.

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