Sean Davison, who helped his terminally ill mother to die in 2006, and who was subsequently sentenced to 5 months of house arrest in New Zealand (where the “crime” occurred), was today sentenced to 8 years of house arrest, with 5 suspended, for 3 similar offences.
Given that the sentence for murder in South Africa is supposed to be 15 years, this caused some consternation for a few talk-radio callers I heard today, and also on that platform of considered debate known as Twitter.
I’ve written plenty about assisted dying (and DignitySA, an NGO dedicated to securing the right of South Africans to a good death) over the years. It’s a topic that is understandably emotive to most people, but also one that’s the source of great tension between secular and religious views on how states should be governed.
For example, South Africa’s Minister of Health, Aaron Motsoaledi, mistakenly believes that “only God can decide when a person dies“, which is a motivation that can only be taken as legally relevant if you are living in a theocracy. In a secular state, people should of course be free to exercise their religious commitments if those commitments don’t violate the law.
Yesterday, a strange collection of people received an unusual email. It was a suicide note from a man we knew to varying degrees, sent to people with whom he’d formed a connection over the years, whether via secular humanist activism (as in my case) or badminton, or something more intimate, like being family or close friends.
It was scheduled to be sent hours after he had taken his life, and included instructions regarding memorial services, burial and the like.
I didn’t know him well, so I’m not sad at his death in any personal fashion. I am however sad at how he had to die – alone, and with no certainty that his suffering would be alleviated, given that the medical support that should be available at times like these cannot be provided unless you can find a physician who is willing to break the law.
Allowing physician-assisted euthanasia (or suicide) is the morally correct thing to do, as I’ve arguedmanytimesin the past. This doesn’t however mean that any given attempt to make it legally permissible is sufficiently persuasive.
A court has to decide on the merits of the case before it, and the Supreme Court of Appeal’s decision to uphold an appeal by the Ministers of Justice and Health (among others), against the Pretoria High Court’s 2015 ruling permitting Stransham-Ford’s assisted suicide, seems to have been the correct one.
It’s doubtful that you’d be able to find any medical school that still uses early translations of the Hippocratic oath, never mind the original Greek version. But if you read the unrevised English version, it would open with something like this:
I swear by Apollo the physician, and Asclepius, and Hygieia and Panacea and all the gods and goddesses as my witnesses, that, according to my ability and judgement, I will keep this Oath and this contract.
It will furthermore ask that physicians comport themselves in a “Godly manner”, and do so without “seeking reward”. The point, in short, is that it’s nothing like the modern understanding of the oath, where that understanding is typically summarised in the phrase “first do no harm”.
This, in turn, means that when you appeal to the Hippocratic Oath to justify (or to rule out) some course of action, you’re already appealing to an interpretation of that Oath – and you’ve already admitted that the Oath is therefore a guiding principle, rather than an absolute rule.
Which, in the context of a discussion about euthanasia, means that we are able to discuss further interpretations of that principle, including the question of whether more harm might be caused by keeping someone alive if they are in pain versus allowing them to die – or even hastening their death.
We are not obliged, in short, to think that a life ending is automatically and always a harm that trumps any other possible harm.
Not only because interpreting the oath as offering guiding principles rather than absolute rules allows for “avoiding harm” to (on balance) mean “cessation of life”, but also because physicians already don’t follow the oath to the letter anyway. I don’t know about you, but if I heard my surgeon swearing to Apollo, I’d try to find a new one before the anaesthetic kicked in.
Which brings me to Health Minister Aaron Motsoaledi, who seems to think Apollo is still relevant to modern medicine. Well, he talks about “God”, so it’s difficult to be sure that he’s talking about Apollo, but whichever God he means, he seems convinced of the fact that it’s God who gets to decide when you die. As quoted in the link above, he says:
“Doctors are human and make mistakes too. They can say a person has a few weeks left to live, based on medical observation, but only God can decide when a person dies,” Motsoaledi said.
He said as much as doctors played an important role in bringing life to this world, “they should not be given the right to end it because they did not create it in the first place”.
“When doctors begin their career, they take the Hippocratic Oath and pledge to do all they can to preserve life and not do anything that will intentionally harm or result in the death of a patient. Nowhere in the medical curriculum were doctors taught to kill,” he said.
This is all in response to the ruling on Robin Stransham-Ford, last week, in which Stransham-Ford was granted permission to seek assistance in dying, and the Judge furthermore ruled that the physician who so assisted him would not be prosecuted. Motsoaledi intends to make sure this does not set a precedent, for the reasons summarised in the quotes above.
Minister Motsoaledi has, on the whole, been a very competent, and even often an excellent, Health Minister. On this matter, however, he’s letting us down. Here’s why:
South Africa is a secular country. While the Health Minister can believe in whatever god(s) he likes, he has a responsibility to make laws that allow for secular justifications. When he speaks as Minister, he should not be suggesting that a certain policy should be motivated by anything to do with what a god might hypothetically want or not want.
He’s arguably wrong on the facts, and is relying on an uninformed gut feel rather than the evidence regarding the consequences of assisted dying being legal. He claims that we’ll soon see “families colluding with doctors to end the life of their loved ones because they wanted to cash in on insurance policies”, but as far as we can tell from the Netherlands and Belgium, you can eliminate much of this risk through devising legal safeguards for when assisted suicide is permitted and when not.
To that, he might say that safeguards are not enough – that risking even one death for this sort of profit motive is one death too many. And here is where our interpretations of “harm” are directly relevant – physicians are always or at least very often making decisions about treatment that might cause harm, but on balance are thought to stand the best chance of avoiding harm. Ending a life is one option in a range of interventions, for the purpose of serving that same goal.
And, ending a life can only be treated as uniquely forbidden as a form of “treatment” if we hold the view that life is somehow “sacred”, which we cannot do in a secular country.
As for the “playing God” sort of argument, Minister, it’s entirely spurious. We all play God when we walk across a street wearing our spectacles, because without them, the bus that God hypothetically sent to run us over would have succeeded in its mission. We play God when we take antibiotics, or when we fly to foreign countries in devices we’ve invented and constructed for that purpose.
With assisted dying, we get the chance to play God in a way that She doesn’t seem that interested in, and we should seize the chance to do so. In this case, we can – and should – play God through alleviating the pain of someone who is dying, and who wants their life to end.
It is to God’s discredit if she doesn’t want to permit or condone this course of action. And it is to our discredit also, if we instead choose to rely on self-serving interpretations of a centuries-old Oath, to evade the moral responsibility of eliminating suffering wherever we can.
Last Thursday was the first “Openly Secular Day“, a new initiative from the Richard Dawkins Foundation (RDFS) and other secular and atheist organisations. Perhaps because of the RDFS’s involvement, I find the day to be a slightly wasted opportunity, in that it emphasises the atheism bit too much for my liking, thus impeding the important bit – secularism – unnecessarily.
Secularism is the important bit because it allows for atheist and theist folks to work together towards a common goal, which is the establishment of laws and policy that is neutral with respect to whatever your beliefs regarding supernatural entities and mystical agents might be. It’s obvious why atheists should care about this, and theists should care because they’d also not like religious laws, if those laws happened to derive from the utterances of a god other than theirs.
One should, in general, be able to discuss controversial moral topics without it being assumed that you support the worst possible consequences of the topic under debate. I add the “in general” because it’s rather difficult to imagine someone arguing in good faith when they ask that we debate whether one race is superior to the next, or some similarly prejudiced proposition.
And, there’s a distinction worth retaining between stating that something is right or wrong, and having sympathy for someone who is placed in the position of having to make a difficult or controversial moral choice – whether or not that person ends up making the choice that you’d make, or hope that they would have made.
What the Belgian Parliament has voted to allow is unprecedented, in the sense that it will allow for voluntary euthanasia (in short, you choose to die – we’re not talking about “pulling the plug” on a comatose person) for a child of any age, rather than only children of a certain age (in the Netherlands, voluntary euthanasia is permitted for children 12 and older).
On their Facebook page, Davison offered this comment:
I can understand that the Belgian law makers were motivated by compassion when passing this law but it is hard to believe that a child has the capacity to make an informed decision about whether to live or die when adults struggle with the concept. So often an adult who has chosen to end their life when terminally ill will cling on and cling on, unable to follow through with their decision. How can a young child be expected to make such a decision?
Our culture and humanity has determined the age when a person is responsible and mature enough to be able to vote, to join the army and die for the country, and to get married.
It is this same responsibility and maturity a person needs to be able to make a decision on whether to live or die. This is not a choice that should be given to a child.”
I can understand a conservative stance on this, but don’t agree with it. Ages of maturity are convenient fictions that correlate with competencies of various sorts, yes – but we use those convenient fictions only because it’s too time and labour-intensive (or, practically impossible) to determine whether the competencies actually exist in individuals.
At the age of (roughly) 16 (or 18), we know that most humans will be safe enough drivers, or responsible enough drinkers, etc. If we had the means, money and time, we’d want to be able to test 15 year-olds to see whether they were capable of these things, just as we’d want to test 19 year-olds and deny them these rights, if they aren’t capable of using them responsibly. At least, that’s my view.
Assisted suicide is one of those issues where the demand is so low, and infrequent, that the relevant competencies can arguably be tested directly, allowing us to do away with the convenient fictions.
In this case, the Belgian Parliament has ruled that “Children, just as adults do now, will need to go through extensive psychological evaluations with multiple doctors. Parental consent will be required as well as a written request by the patient.” For comparative purposes, consider that in the Netherlands (for children 12 and older), only 5 children have met these criteria and chosen suicide since 2002, so there’s no reason to believe this is creating a slippery slope.
As difficult as these decisions are – even more so for people we regard as more vulnerable – the Belgian stance seems logically consistent, and reasonable. Having said that, I’m sympathetic to the caution. It’s just that we’re not going to fix all our our anachronistic moral standards without some moral courage.
There are at least two ways of maintaining or enhancing the significance of death. First, you could attend to death, in the manner that many of us have – sharing the final days, months or years with someone you love. Second, you could remember to take life seriously. So seriously, that when it’s time for the life to end, we can make that decision carry all the significance typically found in protracted, often painful dying.
Tony Nicklinson’s mind is trapped in a body that is useless to him. He has been unable to speak or walk for seven years – the voluntary muscles in his body are paralysed, with the exception of his eyes and a few facial muscles. His eyes are what he uses for communicating with his wife and family, as well as with the rest of the world via Twitter, slowly blinking to select letters and words using an alphabet board.
Nicklinson has what is known as “locked-in syndrome”, perhaps the most famous victim of which was Parisian journalist Jean-Dominique Bauby, author of “The Diving Bell and the Butterfly”. Recovery is extremely rare and can only occur spontaneously, as there is no cure for this condition. Two years after the 2005 stroke that left him in this condition, Nicklinson expressed the wish to be allowed to die. In 2012, the British High Court is deciding whether to grant him that wish.
While I take the point, made in a comment to my earlier column dealing with euthanasia and the Sean Davison case, that those who are suffering might not be the best judges of when life should end, some cases seem clear. Nicklinson has never wavered in his desire to die, and his family are fully in support of his freedom to choose when this should happen. The law, however, differs.
Assisted suicide is illegal in Britain, as it is in South Africa. So Nicklinson’s only option is to refuse food, starving himself to death. Pets are typically treated more humanely than this, and Nicklinson would also be justifiably appalled by this option, given the suffering it would cause his family. He therefore wants a doctor’s help in ending this life that neither he, nor anyone who knows him, wants to perpetuate.
Some sanctimonious folks on Twitter disagreed, telling him that “every life is a celebration. If not for yourself, do it for your children” and that “everything happens for a reason”. Well, no, many things don’t happen for any reason. But that doesn’t mean that we can’t generate some reason or motivation out of them. And here Nicklinson’s High Court case is happening for the reason of allowing for a re-examination of the law, in Britain and elsewhere.
The existing acceptance and decriminalisation – even if not legality – of passive euthanasia is of no use here. Nicklinson’s condition is not life-threatening, and the interventions he currently needs to survive are similar to those of every infant. Parents change nappies, and Jane Nicklinson presses a button to activate an electric hoist over her husband’s bed, which transports him to a toilet. Like those infants, Nicklinson also needs to be fed. And he may well live on for years in this condition, and needing these forms of assistance.
So, he needs help to die. The specific remedies he’s requesting the High Court to consider are firstly that, in the particular circumstances of his case and any other case where an application has been granted by a court in advance, a doctor would be permitted to assist someone to die. Second, he hopes that the court will rule that the current laws on euthanasia are incompatible with his right to autonomy and dignity.
I’d imagine that Dignity SA – the organisation launched locally by Sean Davison to campaign for the legality of assisted dying – would find both of these requests eminently reasonable and applicable in the South African context. If a satirical painting of Jacob Zuma violates his Constitutional right to dignity, I’d imagine that being forced to remain alive in such a compromised state should just about manage to meet even Mac Maharaj’s standards for violation of dignity.
As for the physicians, of course none of them should be forced to end their patients’ lives. But while it might never be an easy task, I don’t doubt that some – perhaps many – of them would agree that preserving life merely for the sake of doing so isn’t always compatible with non-maleficence, one of the fundamental principles of medical ethics. Harm can be caused by the perpetuation of suffering, and the ethical choice can sometimes be to end that suffering.
Paul Bowen, Nicklinson’s advocate, makes the point that making application for permission to end a life in advance “would provide the strongest possible safeguard against abuse”, and “would also provide a safeguard against the concern, often expressed by disabled opponents of legalisation, that a change in the law would lead to a change in people’s attitudes to disabled people, who they predict would come under subtle pressure to seek an assisted death through fear of being a ‘burden’.”
Furthermore, one could argue that allowing for active euthanasia in these limited instances could well lead to a decrease in suicides, with the counter-intuitive result that allowing for ending lives could extend life overall. This is because people can only commit suicide when they still feel capable of doing so, whereas if they knew that euthanasia was an option, they might arrange for the advance directive, and then trust their families and doctors to enforce it once they no longer could.
Nicklinson doesn’t want to die just yet – he’d first like to finish writing his memoirs. And he’s not requesting a law that might permit doctors, or the families of those with serious medical conditions, to make life-or-death decisions for exploitative or otherwise immoral reasons. He’s simply asking to be relieved of his suffering. The law can make distinctions in cases like these, even if it’s true that abuses can result from the general permissibility of active euthanasia.
Hopefully, the British High Court will recognise that they are able to make these distinctions. And, hopefully, the “End of Life Decisions Act” – a draft bill drawn up by the South African Law Commission in 1997 – will one day soon receive a mention in the South African Parliament, and thereby start the process towards allowing us the freedom to pursue the same choice Tony Nicklinson is seeking permission to make.