November 15, 2021
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When sitting on the 23rd November, the States Assembly will debate a Proposition to introduce euthanasia and/or assisted suicide into Jersey law and medical practice.
The Proposition, if passed by the States Assembly, would introduce both these practices into Jersey law and medical practice by providing exemptions from prosecution for the crimes of murder, attempted murder, and ‘aiding, abetting, counselling and procuring murder’, for doctors who euthanise their patients, or provide them with lethal drugs to commit suicide, under certain grounds.
To do this would end important legal protections for the terminally ill, sick, elderly, disabled, and others whose autonomy is fundamentally compromised by their physical or mental condition, and who would easily be harmed by a society whose medical culture would be corrupted. It would undermine and harm our country’s efforts at suicide prevention and development of palliative care.
It is therefore absolutely crucial for the welfare of patients and others affected by such legislation that the States Assembly rejects every element of the Proposition. Instead, the adoption of progressive reforms that will help remove legal stigma against those who suffer from suicidal ideation, and improve access to specialist palliative care, are available to them.
The rejection of medicalised killing and the improvement of real care in our legal and medical systems, will only happen if ordinary members of the public like you contact your Senators, Connétables, and Deputies.
Article 2 of the European Convention of Human Rights (to which Jersey, along with the other Crown Dependencies, with the United Kingdom and her Overseas Territories, is signatory) recognises the human right to life, a right which is further recognised by Article 3 of the Universal Declaration of Human Rights.
Jersey legal conventions against euthanasia and assisted suicide establish fundamental principles of law which serve three important purposes in protecting the right to life:
The principle that society values human life, and that killing a human being (regardless of motivation) is to be regarded as wrong as a normal moral assumption, is an important element of our law, especially as it informs our medical practice.
As the former President of the UK’s High Court Family Division, Baroness Butler-Sloss, once said,
“Laws, like nation states, are more secure when their boundaries rest on natural frontiers. The law that we have rests on just such a frontier. It rests on the principle that we do not involve ourselves in deliberately bringing about the deaths of others”.
The natural frontier of medical law is that medical professionals should not be involved in killing, or enabling the killing, of their patients.
The primary purpose of law is to protect people from lethal coercion. Our current law against euthanasia and assisting the suicide of others, helps safeguard public safety in giving prudent and special protection to those who are psychologically vulnerable, from external and internal pressures to end their own lives.
When someone is very elderly, suffers from a serious illness, or possesses any condition or impairment which becomes a disability due to society’s lack of inclusion, they become vulnerable to coercion and serious abuse due their weakened or lessened personal autonomy. In these cases, the law against euthanasia and assisted suicide exists to prevent the means by which that abuse might take place, and protect the most vulnerable members of our society.
According to the European Court of Human Rights, the implications of the right to life include a positive obligation on State authorities “to take preventive operational measures to protect an individual whose life is at risk”, including those who are at risk of suicide. Not only are suicide prevention strategies an important part of that obligation, but so are laws against assisting someone in causing their own death.
The law should reflect and reinforce the social assumption that, whilst individuals who attempt to take their own lives should not be prosecuted for doing so but given help and compassion, suicide as a rule is nonetheless an objectively negative phenomenon, and not something another person should encourage or assist.
For this reason, Jersey like other civilised societies maintains emergency responses to attempted suicides, ‘suicide watches’ of those who may seek to harm themselves, and Government suicide prevention strategies. We still need to destigmatise our law on suicide and strengthen protections for those who experience suicidal ideation.
The introduction of euthanasia and/or assisted suicide (EAS) contradicts the valuing of human lives and the moral proscription of killing in medicine and more widely, removes important protections for vulnerable patients, and undermines the prevention of suicide by society and Government.
A key reason for EAS to remain a legal offence is to protect vulnerable members of the public who are vulnerable to coercion and abuse. Sadly, in practice as well as in theory, so-called ‘safeguards’ for EAS have been shown to fail in providing the same protection.
Not only has the introduction of EAS led to premature deaths due to pressure from unscrupulous friends and relatives, it has also led to increasing and then consistently high proportions of patients who present for EAS on the basis of feeling a burden on family, friends, and caregivers.
Particularly with ongoing problems of elder abuse, and disability discrimination, EAS is danger to public safety.
In the context of terminal and chronic illness, a wish to die is often temporary and transient due to depression caused by illness. In the general population, suicidal thoughts and urges are common symptoms of depression, and serious suicidal thoughts rarely arise apart from depression.
Correspondingly, and worryingly, in those jurisdictions where euthanasia and assisted suicide have been introduced into law and medical practice, significant proportions of those who have been euthanised or who have been enabled to commit suicide, have suffered from depression and suffered from other forms of mental ill health.
Further, data from each jurisdiction which has introduced euthanasia and assisted suicide shows that numbers of those being euthanised or committing suicide with assistance from their physician rises profoundly over time.
If we were to remove legal protections for vulnerable patients from euthanasia and assisted suicide therefore, then the result would be to remove the cultural and public safety role of our law, potentially leading to ‘suicide contagion’ for which there is emerging evidence.
A key argument in favour of legalising assisted suicide is that it is necessary to secure ‘dignity in dying’, by providing painfree and peaceful deaths. The causing of death by ingestion of drugs is an unnatural act however, and as might be expected can lead to the opposite of what is intended: undignified and painful deaths.
The latest annual statistical report from Oregon reports that between 1997-2020, 68.8% of lethal drugs used in Oregon assisted suicide have been barbiturates such as secobarbital, phenobarbital, and pentobarbital. This is the same means by which criminals on death row in the U.S. are killed in ‘lethal injection’ executions, and works by inducing unconsciousness, followed by respiratory arrest and consequent asphyxiation. This has been called ‘cruel and unusual’ due to testimony that ‘the majority of those injected with pentobarbital suffer flash pulmonary edema, which can lead to a sensation akin to drowning and “extreme pain, terror, and panic”’.
When you accept the false idea of a ‘right to die’, you cannot rationally restrict it to only one group of people. Rights apply to everyone, or they apply to no-one, and so the logic of ‘autonomy’ extends from the terminally ill to many vulnerable types of people.
The Proposition before the States Assembly heads straight down the logical cliff to euthanasia and assisted suicide not just for the terminally ill, but for those who possess “an incurable physical condition, resulting in unbearable suffering that cannot be alleviated”. Here, the phrase “unbearable suffering” is undefined, and so is completely subjective. As what is considered unbearable will differ from person to person, as long as the suffering can be said to be caused by an incurable physical condition, it would be grounds for EAS.
Trust is the foundation of the clinician-patient relationship. The fact that a doctor might instigate death changes the relationship when a patient is ill and seeking care. There must be clarity that a doctor will never intentionally cause harm to a patient. Continued pressure on NHS resources, however, could lead to decisions being taken that would undermine that trust, as medical decisions would be made not in the best interests of the patient, but according to the priorities of the health system.
Evidence shows however that where EAS has been introduced, patients have been euthanised as part of being exploited for organ retrieval, and the ending of patients’ lives treated as an economic and medical benefit. Medical professionals meanwhile have either suffered moral hazard and repercussions on their mental health, or else been part of the least scrupulous section of their profession in involving themselves in EAS practices which are involuntary or least autonomous.
Eligibility Criteria
The criteria in the Proposition before the States Assembly by which a patient’s condition would be eligible for euthanasia or assisted suicide are problematic. They are so wide as to cover a range of common incurable chronic illnesses and physical impairments, which can be kept at bay for years by effective treatments and involve long and happy lives for those suffering from it. This has direct disability rights implications despite the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) not being extended to Jersey.
The more limited criteria for assisted suicide and terminal illness also suffer from serious problems, such as the six month prognosis criterion, given the unreliability of prognoses of patient death that far in advance.
Safeguards
It is claimed that ‘safeguards’ will be put into the law, so as to give continued protections to vulnerable people. When we look at the alleged protections that have been proposed however, we see that these are vague, and that those which have been proposed and practised in other jurisdictions could not but fail to provide the rigour that would be needed to protect vulnerable constituencies of people.
Freedom over our own lives or bodies is necessarily limited for our own good and often subordinated for serious reasons for the good of others.
Public safety, the Common Good, and justice, all show that autonomy cannot be an absolute principle, or justify euthanasia or assisted suicide if understand properly.
All patients should be treated with respect, courtesy and compassion simply because they are of immense value and worth as human beings.
Serious illness does not rob someone of their inherent human dignity. Dignity is intrinsic to who we are as human beings and cannot be lost.
Accordingly, it is the very presence of that inherent human dignity, that intrinsic value and worth of human beings, that restrains us from taking human life.
It is argued by some campaigners for assisted suicide that to have laws against assisted suicide is contrary to human rights, as we have a human ‘right to die’.
The reality is that there is no ‘right to die’ in international human rights law. Not a single human rights statute gives a right to take one’s own life, or to be assisted in doing so. There are clear implications to the right to life however, which assisted suicide undermines.
Assisted suicide advocates claim that they are not arguing for assisted suicide, but ‘assisted dying’. The logic of this goes that they wish to apply assisted dying only to people who are terminally-ill, who are not ‘suicidal’ in that they do not wish to die, but simply want to be able to control the time and manner of their dying through a “last act of kindness”.
Sadly, this is a distinction without a difference. The truth is that ‘assisted dying’ is a euphemism that has been created to sanitise what is being argued for, and remove its moral and medical implications.
One supposedly powerful argument in favour of the introduction of euthanasia and assisted suicide (EAS) on Jersey is the final report of the Citizens’ Panel on Assisted Dying, 78.3% of whom agreed that EAS should be permitted where a Jersey resident, aged 18 and over, has a terminal illness or is experiencing “unbearable suffering” and wishes to end their life.
The reality however is that the Citizens’ Jury was biased in favour of EAS from its inception, and in no way formed a balanced or fair consideration of the evidence for or against such proposals.
Very often, proponents of assisted suicide try to caricature opposition to their proposals as being a matter of ‘religious’ people trying to ‘impose’ their values and beliefs on the rest of society.
This is red herring. Some of the leading campaigners in the British Isles against assisted suicide are not remotely religious, and the case against assisted suicide is not based on religious teaching, but on public safety and human rights
There is no such thing as a perfect world. The evidence from other jurisdictions shows however, that both euthanasia for those suffering what they consider “unbearable suffering” (as practised in Canada, Belgium, and the Netherlands) or assisted suicide only for the terminally ill (as in American States like Oregon, Washington, or California).
There are alternatives to these dangerous practices that would both allow true dignity for those who are dying or suffering from chronic or terminal illness, and also destigmatisation and better protections for those whose autonomy is compromised by dire mental health.
