Assisted Dying’s Conscience Claws

Aaaaaaaand so the latest attempt to get assisted dying of some sort onto the statute books in the UK has bitten the dust.  I can’t say I’m surprised.  Watching the debate in the Commons – I didn’t watch it all, but I did watch a fair chunk of it – it was striking just how familiar the arguments produced by both sides were.  It’s hard to shake the feeling that, just as is the case with the journals, the public debate on assisted dying has become a war of attrition: noone has much new to say, and in the absence of that, it’s simply a matter of building up the numbers (or grinding down the opposition).  The Nos didn’t win today’s Parliamentary debate because of any dazzling insight; the Ayes didn’t lose it because their speakers were measurably less impressive than their opponents’.  If the law does change in the UK, I’d wager that it’ll be because of demographic brute force rather than intellectual fireworks.

(Every now and again I hear a rumour of someone having come up with a new approach to assisted dying debates… but every now and again I hear all kinds of rumours.  I live in hope/ fear: delete as applicable.)

Still, I think it’s worth spending a little time on one of the objections that’s been raised over the last couple of days to this Bill in particular; it’s an objection that was raised by Canon Peter Holliday, the Chief Executive of a hospice in Lichfield:

In an interview with the Church of England, Canon Holliday said: “If there is no possibility within the final legislation for hospices to opt out of being a part of what is effectively assisted suicide, then there is nervousness about where our funding might be found in the future. Would the public continue to support us and indeed would the NHS continue to give us grants under contract?”

Canon Holliday said the Assisted Dying Bill also contains no opt out for organisations opposed to assisted suicide in spite of high levels of opposition to a change in the law amongst palliative care doctors. Where hospices did permit assisted suicide the potential frictions amongst staff could be ‘enormous’ with possible difficulties in recruiting doctors willing to participate, he said.

“The National Health Service requires us, in our contracts, to comply with the requirements of the NHS. Now if the NHS is going to be required to offer assisted dying there is of course the possibility that it would require us or an organisation contracting with the NHS also to offer assisted dying. If we as an organisation were able, and at the moment under the terms of the bill there is no indication we would be able, but if we were able to say that assisted dying was not something that would happen on our premises, would that prejudice our funding from the NHS ?”

Is this worry well-founded?

I don’t think it is.  First of all, it’s a bit strange that he talks about the thing that the Bill would allow as “effectively assisted suicide”, as though that’s a discovery about the Bill rather than… well, rather than the whole point.

But more importantly, the point about the NHS seems to me not to fly.  It’s not at all clear why there’d be any concern about funding.  Any such concern seems to be based on the notion that the NHS would be required to provide assisted dying.  But I can’t for the life of me see in the Bill anything that would amount to a claim that the NHS would be required to provide AD in any form.  The proposal was that certain medical personnel would be allowed to provide assistance to certain people under certain conditions and with the approval of the High Court.  That’s a long way from anyone being required to provide it.

More, sec 5 of the Bill says explicitly that

A person shall not be under any duty (whether by contract or arising from any statutory or other legal requirement) to participate in anything authorised by this Act to which that person has a conscientious objection.

Now, I’ll make this much of a concession: I’m tempted to think that the Bill could have made it absolutely explicit that no organisation would be under any duty to provide or even facilitate assistance either.  I don’t think that that would have damaged the Bill, and it may have strengthened it, in terms of soothing worries like Holliday’s.

There’s something a bit perplexing about this conscience clause, all the same.  Compare it to the other famous conscience clause in British law – that in the Abortion Act.  Notably, the GMC has stipulated that the right not to participate comes alongside a duty to refer women on to another medic who would participate.

Might the same apply in respect of any assisted dying legislation, such that medics would have to refer a patient to other medics if they were not willing themselves to assist?  We’re clearly dealing with hypotheticals here, but it’s not obvious that there would be an analogy.  Legally, an embryo is not a person, whereas a would-be suicide is; it seems to me that there’s a world of difference between killing a person and killing a non-person in the eyes of the law, and that’s enough to draw a line here.  Morally, there’s a difference too, not the least part of which is that an abortion concerns the self-determination of a woman who is a person; but whatever rights of self-determination someone may have, it doesn’t follow that they have any entitlement to assistance in exercising it.  (They might, but it’d require a separate argument, and that argument might not extend to a right to assistance in dying.)  If I want to kill myself, it’s not clear that anyone else would be under any obligation to help me.

The point is, I don’t think that we’d have to suppose that there’d be a duty to refer on; and killing persons being quite a serious matter, it might be desirable not to have this duty.  And so any person or organisation opposed to assisting dying could – I’d guess – breathe easily.

But this does raise a further problem.

A pregnant woman who wants an abortion and is entitled to one under the terms of the Act has the right to go “doctor shopping”.  If she can find a doctor who will help, that is her right.  Much the same would apply, I’d imagine, to assisted dying: even if your doctor isn’t obliged to refer you on, it would still be legally possible to go doctor shopping (see sec 3(2)).  But here’s the thing: it seems reasonable to expect that a terminally ill person is less likely to be able to exercise that right than a pregnant woman would be.  Not all terminally ill people are incapacitated, and not all pregnant women can easily go to find another doctor – they might live in a remote area, for example.  But terminal illness can be associated with being bedbound or housebound more closely than can pregnancy; it seems likely that the formal right will be more likely to be materially applicable for pregnant women than for terminally ill patients.

So there might still be a situation in which a terminally ill person, simply by the good or ill-fortune of living in an area where the only hospice is anti-assistance, would not be able to access assistance, and not be able to do anthing much about it, just because of the condition that makes them want it to begin with.

That does jar a little.  But maybe we’d just have to accept that, sometimes, a consicience clause has claws that can scratch us.  That’s probably no reason to eschew conscience clauses.

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