The grey legality and morality of death

As Thomas Hobbes almost said, the lives of many of our ancestors were nasty, brutish and short. While nastiness and brutishness may still be making the rounds, the duration of life in modern Western society has expanded beyond the wildest dreams of our forefathers.

We now laugh in the face of the infections that only a few generations ago would have carried us off to an early grave. More and more people are surviving, and surviving for many years, the types of cancer that even a decade or two back would have proved fatal. We are pushing death ever further away, and are likely to continue doing so. But death still claims all of us in the end, even if our manner of approaching it, fighting it or welcoming it is increasingly the subject of painful debate.

A right to die?

The British House of Lords is currently considering a bill that would allow doctors to help some terminally-ill people to die. The bill is often referred to, mistakenly in my view, as giving the ‘right to die’. But such a right has existed in Britain at least since the early 1960s when suicide was decriminalised. What we are talking about here is not really about ‘rights’, it is about imposing on doctors a new obligation: the obligation of terminating someone’s life (for without such an obligation, talking of a patient’s ‘right to die’ is meaningless).

Until now, society has been able to take a more pragmatic view of this issue. As the Guardian reports, some 20% of deaths in the UK even today may well be the ‘side-effect’ of the alleviation of pain – and it probably has been thus for generations (George V’s death being a famous case in point). There have also been numerous cases where parents or spouses have helped loved ones to die: the courts have generally taken a lenient view. My preferred solution would be to have this pragmatic approach continue. Doctors, patients and families could discuss options privately, and the police and the courts could use their discretion. But modern society, alas, demands that such things be formalised in law. In a post-Shipman world, we need everything in black and white. This is understandable, but making it explicit in an Act of Parliament that patients have a right to demand that doctors take active measures to end their life is a step too far for me.

I realise that I stand open to the accusation of moral inconsistency: that I am happy to see the justice system turn a blind, or at least a lenient eye, to actual instances of euthanasia, while objecting to its explicit legalisation. Guilty as charged. Legislation is not necessarily the best place to codify the grey areas of human morality. There is a big moral difference between the actions of a wife who helps her terminally-ill husband take an overdose and those of a wife who poisons her husband so she can take his money and run off with the next-door neighbour. But that does not mean that the first wife’s actions should be made explicitly legal.

A right to refuse treatment?

I am firmly against an explicit legal right to euthanasia, much though I understand the pain of those who argue in its favour. A fundamentally different question, however, is the right not to receive or continue to receive medical treatment: and it was this that was at the heart of the Terri Schiavo case here in the States earlier this year (although the issue was muddied by a deeply distressing family dispute). There is no question in my mind that a competent patient, or their competent next of kin, should be able to decide whether to accept treatment, even if its refusal would have a terminal outcome. The alternative, indeed, fills me with dread. For the law to oblige me or my loved ones to accept continued treatment, however horrible, however painful, however much against my or their express wishes, is to open up a new and disturbing view of the relationship between the individual and the state.

A right to be given treatment?

But what about the other side of the debate? Do patients have the right to demand treatment even if doctors consider it inappropriate?

Few legal cases are as painful as that involving Charlotte Wyatt, a baby girl born with a serious lung condition. Doctors took the decision that, were her condition to deteriorate, further attempts to resuscitate her would not be in her best interests. Her parents took the case to court to demand that such attempts be made. They lost. As far as I am aware, Charlotte is still alive.

A court is one of the last places one would want such as matter discussed, so cruel an instrument is the law: the emotional power of the parents’ arguments is overwhelming, and yet the law must be dispassionate, and, however unfeeling this may sound, the judge’s decision seems to me the right one (remember, the judge had to decide on the principle behind the case). No health service, however well funded, could survive if patients could demand all and every life-prolonging treatment, however clinically unfounded, however much it was against the views of the doctors, however much suffering it would bring. As technology advances, cases such as Charlotte’s are likely to become more common. Patients should always be consulted and their views given all due weight, but, in the imperfect world that we have, doctors must inevitably be given the final say. It is quite possible to argue that the medical decision in Charlotte’s case was wrong. The legal decision, though, seems to me completely sound.

It is tempting to see cases such as Charlotte’s as being some modern phenomenon whereby life is being slowly devalued. Quite the opposite is true, in my view. Until recently, Charlotte’s case would have never come to the public attention because she would have died naturally, probably immediately after her birth. It is the very advances in medical technology, and our increasing demands that extraordinary measures be taken to preserve life, that bring cases such as hers to the fore. And even if such technology had existed in the past, the overwhelming sway of deference, now long abandoned, the absolute certainty that the doctors always knew best, would have made a legal challenge to the prevailing medical opinion virtually unthinkable.

The Lord taketh away (but not if modern medicine has any say in the matter)

The advance in medical technology is one of the great good-news stories of the past century. That said, I have little doubt that previous, more religious, generations would have found something almost blasphemous in the way modern medicine, with its emphasis on hospitals, tubes and chemicals, is used to prolong life, in defiance, as many would have seen it, of God’s will. We are quite likely not that far away from being able to remove a brain from a shattered body and keeping it alive in a chemical solution indefinitely. Few, I think, would argue that life is so precious as to make such a step a welcome development.

Death comes to us all. Putting a legal obligation on others to hasten it for us is wrong. But neither should we make such a fetish of life that we make death not merely the end, but the ultimate moral failing.