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In the UK, the self-styled Commission on Assisted Dying has published its final report in January this year. As expected, it recommends the decriminalisation of assisting someone to commit suicide in at least some circumstances. The commission, established and funded by Bernard Lewis and Sir Terry Pratchett, prominent supporters of Dignity in Dying (formerly the Voluntary Euthanasia Society), was chaired by Lord Falconer, a former Lord Chancellor, who has long argued for changing the law to make assisted suicide easier. It argued that the current guidelines—introduced less than two years ago—are unworkable. It wants the law to be changed so that, if patients have less than a year to live, doctors can prescribe drugs to cause their death.
 
The report was heavily criticised by medical professionals and anti-euthanasia campaigners, who highlighted the biased nature of the commission and pointed to the flawed logic in its proposals. The British Medical Association had refused all along to have anything to do with the commission on account of its evident pro-euthanasia bias.
 
Dr Peter Saunders, Chief Executive of the Christian Medical Fellowship, pointed out that the five major disability rights groups in Britain—Radar, UKDPC, NCIL, Scope and Not Dead Yet—oppose a change in the law. Lord Falconer, however, selected a disabled person (Dr Stephen Duckworth) who represents none of these groups and takes a contrary position. He also pointed out that, although 95 percent of palliative medicine specialists and the majority of doctors support the status quo, Lord Falconer picked four doctors who hold the minority view. “The clear intention”, he said, “was to ensure the ‘right’ conclusions.”
 
Archbishop Peter Smith of Southwark, speaking on behalf of the Catholic Bishops’ Conference of England and Wales, similarly pointed to the bias of the Commission. He said it recommended “a regime for legalised assisted suicide that is even laxer than the one proposed by Lord Joffe six years ago—which was roundly defeated in Parliament.” But he said he was “impressed and heartened” by the wide range of thoughtful critical responses to the report, “particularly from those with disabilities, and medical and legal experts of all faiths and none”. They are right, he said, to point out that “to legalise is to normalise”, and that society cannot change such a fundamental law which exists to protect the vulnerable without grave long term consequences. “We must do more to care well for those who are dying, and support more and better hospice and palliative care. Legalising assisted suicide is not the answer.”
 
Damning Criticism from All Sides
 
Even Lord Falconer admitted that his proposals involved risk. Speaking on BBC Radio 4’s Today programme, he said no system to allow assisted dying could ever be “completely watertight”.
 
Concern was also expressed about suggestions that would mean any doctor who did not believe in assisted suicide would be obliged to refer a patient to another doctor who did. Phyllis Bowman of Right to Life said this means “if you can’t persuade your doctor to do away with granny, he has to find you another doctor who will. It also means that all doctors must participate in assisting the suicide of patients.”
 
Some of the most damning criticism came from the President-elect of the British Medical Association. Baroness Sheila Hollins, who is also past president of the Royal College of Psychiatrists, reiterated that assisted suicide is opposed by the vast majority of doctors. She said the commission’s definition of terminal illness “sweeps up any seriously-ill person who might die within 12 months”, so that it is, in reality, supporting physician-assisted suicide for everyone approaching the end of life. She also identified serious flaws in the proposals relating to the assessment of patients’ mental capacity. Writing in The Daily Telegraph, she observed that “there seems to be little real understanding of what mental capacity means or how to establish such an understanding.”
 
‘Incredibly Difficult to Assess’
 
“Mental capacity is a legal term meaning that someone is truly capable of making a specific decision—in this case that they want to die. The ground rules were set out in the Mental Capacity Act of 2005. Judgments of mental capacity have to be decision-specific: a person may be judged to have the capacity to make some decisions but not others, such as those with serious consequences. Deciding to end your life falls into this latter category.”
 
Baroness Hollins cited evidence submitted to the commission by medical experts to show how difficult it would be to determine that someone had the mental capacity to choose assisted suicide. Professor Matthew Hotopf of King’s College London’s Institute of Psychiatry warned against one-off psychological assessments for determining suitability for assisted suicide. What was needed was to assess the stability of such a wish over time. Similarly, the Mental Health Foundation believed that “you couldn’t just assume that what you heard on one day was actually representative of the person as a whole”. Dr Martin Curtice, a consultant in old age psychiatry, told the commission that there was “a big overlap between depression and terminal illness and chronic physical disorders”. The presence of such depression “does not automatically mean you lack capacity, but it’s highly likely to influence your decision-making”. The British Psychological Society said “it’s incredibly difficult to assess people with a life-limiting illness for depression and anxiety”.
 
Professor Hollins warned that the commission apparently believes “that assessing mental capacity can be left safely in the hands of the patient’s GP and specialist”. But with today’s busy, multi-partner urban practices, “how many GPs”, she wondered, not to mention hospital consultants, “know their patients well enough to make such complex assessments.” The unwillingness of most doctors to participate in any assisted dying cases could also result in patients being assessed “by a handful of doctors who know little of them beyond their case notes and who are predisposed to see a request for assisted dying as a rational response to terminal illness.” This is what has happened in Oregon, where “physician-assisted suicide” has been legal since 1997 and where there is a very low rate of referral for psychiatric assessment. As many as one in six, researchers discovered, of those who have taken their lives with lethal drugs supplied by doctors in Oregon had been suffering from undiagnosed clinical depression.
 
Most psychiatrists, Professor Hollins writes, would not be comfortable with the idea of assessing patients for suitability to receive lethal drugs. “We assess mental capacity for the protection and treatment of our patients, not to clear the way for them to commit suicide. We also know that reliable capacity assessment can only be made over time and involves getting to know patients and what lies at the root of their problems.” 
 
Help to Live, Not to Die
 
The commission’s recommendations assume that the trusting relationship between doctor and patient, which is the vital key to clinical decision-making, would survive such a change in the law, Professor Hollins observes. “Most proposals advocating assisted dying assume an ideal world—one of seriously-ill people who are completely clear about ending their lives, of close doctor-patient relationships and of relatives who are invariably ‘loved ones’. But the real world isn’t like that. Terminal illness often brings significant emotional stress, many doctors cannot know their patients as well as Lord Falconer and his group seem to envisage, and some families are less than loving and caring. Seriously-ill people need help to live, not help with suicide. They need compassionate care and effective pain relief—let’s campaign for those.”
 
A spokesman for Care Not Killing said the report is “deeply worrying and flawed”. He said that, while it is being presented as a serious investigation into this complicated and divisive issue, it is not. “The report does not add a single new argument, or fact to the debate on assisted suicide and euthanasia. It was paid for by the supporters of euthanasia and nine of the 12 members on the commission are known backers of changing the law. At the same time those with a different view were excluded from taking part, which was why many individuals and organisations refused to take part. Unsurprisingly the report’s authors have decided to call for legalisation of assisted suicide and euthanasia, which could lead to around 13,000 deaths a year, putting the lives of many disabled and vulnerable people at risk. The current law exists to protect the vulnerable, elderly and disabled from being pressured, or feeling under pressure to end their lives because they are either a financial or care burden. The fact that the sanctions available to the court have rarely been applied show that it acts as a powerful deterrent.”
 
Prime Minister David Cameron has made clear that he opposes any moves to legalise assisted dying and the British Government is unlikely to accept the commission’s recommendations. In the House of Lords, Crispin Blunt MP, Parliamentary Under Secretary of State in the Ministry of Justice, gave the government’s view that any change in the law would be a matter for Parliament on a conscience vote. Tory MP Nadine Dorries said the commission, “packed with strident voices to change the law”, is already discredited due to its lack of impartiality.
 
Meanwhile Britain’s General Medical Council (GMC) is considering how to deal with allegations that doctors have been involved in assisted suicide. The GMC says doctors are already bound by the law that assisting or encouraging suicide remains a criminal offence but believes it needs to clarify how its own investigators deal with cases where no prosecution is mounted but complaints are still made about a doctor’s fitness to practise. A working group is drafting internal guidance for decision-makers on fitness to practise cases before putting it out for public consultation in the coming months.
 
Niall Dickson, the GMC’s chief executive, said the Council would not take a position on whether or not the law should be changed. But he added that there is a range of actions which could be considered as assisting in a suicide, such as providing information to a patient about suicide or providing practical assistance for someone to travel to a clinic such as Dignitas. “Some of these actions may not lead to criminal charges but may still lead to complaints to us about a doctor’s fitness to practise.”
 
The GMC says it has only considered three cases involving allegations relating to doctors assisting in a death in the past 10 years. One resulted from a conviction for assisting suicide in Canada and none from any conviction in the UK. In Scotland there is no offence of assisting suicide but in some circumstances the law of homicide may apply. Prosecutors have made clear it is up to the Holyrood Parliament to decide whether the law needs changing.