A merciful muddle

According to many of its advocates, legalised euthanasia would be a reality in this country if religious folk got out of the way. The real story is not so simple. In fact, the best predictor of a British person opposing legalised euthanasia is not being religious, but being a physician.

This remarkable statistic might simply prompt euthanasia supporters to re-target their guns: it’s the GP practice on the corner that stands in their way, rather than the church across the street. But that’s too simple. What the statistic should prompt is a reframing of the debate. For it turns out that the reasons people have for opposing euthanasia differ from the reasons we usually attribute to them.

All debates have their doctrinal purists at the extremes, and this is no exception. But loud shouting from the margins can drown out quieter, perhaps more common, voices at the centre. That seems to be what has happened here.

Listen to the shouting and you will think this is a clash of fundamental, absolutist moral principles: the prohibition of killing versus patient autonomy. Some do think the matter begins and ends there, resting on which of those principles can defeat the other in a fight to the death. But between these extremes there lies a vast and — there’s no other word for it — characteristically ‘Anglican’ centre.

Listen to these voices, rather than the shouting, and the debate turns out to be less a clash of fundamental moral principles than a nuanced conversation about how best to embody in law a broad area of agreement. So, not ethics but policy. If we listen carefully to what the various sides in the debate really say — rather than what their opponents say they’re saying — the best policy may be what we’ve already got.

At present, doctors in the UK may not directly kill patients — though they may indirectly hasten death for the terminally ill. And those who help family members kill themselves elsewhere are not prosecuted — though by aiding a suicide their actions are technically illegal. That’s messy, imperfect — and probably just about right.

To see why this is a good compromise we need to sort out what the different sides in the debate, taken at their best, really are saying. The most extreme of the doctrinal purists on the pro-euthanasia side — and this should remind us that atheists can demand doctrinal purity every bit as forcefully as bishops — hold that ‘autonomy’ trumps all. By autonomy they mean the patient’s free choice, and so they hold that adults may do whatever they want, provided they don’t disproportionately harm third parties.

But few are really willing to go down with this ship. No one jumped to the defence of Armin Meiwes when he was imprisoned in Germany for killing and eating a willing victim. Even the staunchest proponents of autonomy qualify it in this or that way: only adults of sound mind, only patients who are terminally ill, only by a government-approved official, and so on. And all of these are prudential or procedural qualifications — not matters of moral principle. So even those who think one can morally consent to being killed for fun will still oppose making it legal. That’s one step toward the centre.

The corresponding anti-euthanasia purist holds that all killing is wrong whatever the circumstances, and every conceivable effort must be taken to avoid or delay death, even among the terminally ill. But even were this reasonable, it would not be possible. Medical resources are limited, but medical need is infinite.

Such a view is sometimes mistakenly attributed to the Roman Catholic church. In fact, the church’s opposition to legalised euthanasia is narrow and rests on one, quite sensible, principle: intentional killing of the innocent should always be prohibited by law. That is hardly a universal prohibition of killing. It permits killing in self-defence and war (for then the person killed is not innocent). It permits shooting down a hijacked, bomb-laden airplane (for the innocent passengers are not directly targeted). And it permits allowing victims to die when saving them would cause other harms, such as when ransom is refused to kidnappers (for the hostage negotiator does not intend death by not bargaining).

Applied to real-world decisions, this is more progressive than some might expect. It recognises that life is necessarily finite, and that part of a good life is appropriate acceptance of when its end has come. It allows the aggressive use of drugs to avoid pain, even when that shortens life, including sedation (putting a patient ‘to sleep’) at the very end of life. It also recognises that there can be a very broad range of reasons for refusing treatment.

Even on the Catholic account, a patient always has the right to refuse medical treatment that she considers pointless or burdensome. Her reasons might include concern for the good of the community, such as by declining further chemotherapy to preserve scarce medical resources for others, or for some social good, such as if she would rather spend her last days with her family than travelling to a dialysis centre. All in all, this is a sensibly moderate anti-euthanasia position.

Where many people disagree — including other Christians and probably most physicians — is that the Catholic view fails to account for exceptions: for genuine moral emergencies. Aren’t there some rare situations where you should kill your friend, such as if he’s mortally wounded on the battlefield, begging for death, and without morphine? Or, as in The Last of the Mohicans, when Hawkeye (Daniel Day-Lewis in the film) shoots his friend, who is being burned alive?  Those are plausible exceptions to an otherwise reasonable rule (don’t kill), and it is this that leads so many to find the Catholic view ultimately unsatisfactory. Most of us would prefer to be killed quickly by a bullet than slowly by a fire. So maybe we would do for our friends what Hawkeye did for his. We might pray for forgiveness, but we might still pull the trigger.

We now have on the stage three actors: the Euthanasia Advocate (who turns out only to want it legalised for specific, carefully-defined cases), the ‘Catholic’ Opponent (whose opposition is narrow), and the ‘Anglican’ (who’s circumspect, but open to the possibility of mercy killing).

The first thing to notice is their significant overlap, for even the Advocate wants to keep some medical killing illegal. The question is how to translate the areas of agreement into a workable policy. The current status of euthanasia in British law is a good compromise because, in the best democratic tradition, it incorporates the common ground underlying these various positions. As a policy, this doesn’t have the neat and tidy certainty of analytic philosophy. It’s muddy, but then democracy often is.

What most seems to offend euthanasia advocates about the status quo is that, by their telling, it forces people to die in a manner that they did not choose. If Christians — or whoever — want to fight grimly to the end, that’s their prerogative, but they’ve no business requiring it of others. On this account, legalizing euthanasia simply gets the state ‘out of the bedroom’ (or hospital room). It makes death a private choice. Just as the state no longer regulates sex — when between consenting adults and in private — it should no longer regulate end-of-life choices.

But that is misleading, for even the most forceful advocates do not really want privatization. What they actually want is the apparatus of the state, and probably of the medical profession, which is itself state-regulated, to be very much involved, not only to regulate which killings are permissible but also to facilitate those killings, either by providing the fatal drugs or by administering them. So the claim that euthanasia advocates merely want the state ‘out of our bedrooms’ is only a rhetorical flourish, made fashionable by a widespread distrust of the state. Like the Big Society, it would really just mean that the government gets in through a different door.

The debate is not about privacy, then, but about how best to weigh a complex set of factors: the community’s legitimate interest in prohibiting killing, the integrity of the medical profession’s commitment to provide health for the community, and the recognition (contra the Catholic view) that in the messiness of real-life there may well be exceptions to the general rule against direct killing. If we grant the last point, the question then becomes how to respond to those exceptional cases — and what counts as an exception.

Assuming most of us can agree that Hawkeye should not be prosecuted for killing his friend, burning at the stake, are today’s end-of-life cases relevantly similar? Almost never. There may be cases where a doctor cannot alleviate pain short of directly killing the patient — perhaps the hospital is remote and drugs are scarce — but those rare exceptions hardly warrant changing the law.

Much more sensible would be for the prosecutor or medical review board to take such factors into account when weighing whether breaking the rule against killing was justified in this case. And, indeed, that’s pretty much where things currently stand in the UK.

There remain two arguments in favour of changing the law, each of which is more plausible than the above arguments. In my judgment, neither of these tip the scales such that we should change the law, but they deserve a hearing nonetheless. The first is that we could protect the integrity of the medical profession by simply extricating them from the process altogether. Doctors could remain wholly committed to promoting health, while eschewing direct killing, and another agency would handle euthanasia. (This was unwittingly endorsed by one of my undergraduates who mistakenly believed that PAS stood, not for Physician Assisted Suicide, but Philosopher Assisted Suicide! At least it keeps the doctors out of the killing business.) Of course, if the idea of thanatoriums on the High Street is distasteful, then this only underscores my earlier point: euthanasia advocates want something much more than to be left alone. They want the state’s endorsement, via the bureaucratic apparatus of the medical profession and all that it publically symbolizes.

The other remaining argument for changing the law is that our current situation doesn’t prevent euthanasia; it simply outsources it to an industrial estate in Zurich. Branding those who help family members die elsewhere as ‘criminals at large’ is cruel. At a minimum, they should be able to apply for prospective immunity in advance of travelling to Switzerland.

That’s actually not far off the current arrangement, for the guidelines governing when to prosecute are publically available. The case for prospective immunity is not an altogether bad one, and has in fact been considered by legal scholars (though some conclude it would be legally untenable, even if it makes good sense).

But in reality, this is just legalisation by other means: doctors would still be needed to verify the criteria, and so on and so forth. The case for prospective immunity would need to be made as an argument for legalised euthanasia on its own merits, and not simply because it’s legal elsewhere. This merely gets us back to where we started.

It’s quite right that the prosecutor declines to pursue cases that fit the guidelines, but declining only after the fact allows the law against killing to maintain its actual and symbolic force, while recognising legitimate exceptions for reasons of justice and mercy.

There is no easy answer to this debate, and we should be suspicious of anyone who offers one. But what the debate is not is an intractable battle between absolutist moral principles. The odd extremist at the margin notwithstanding, there is a broad common ground in this country. How that common ground can be turned into a workable policy is itself a matter of dispute, but the status quo is a good compromise. It preserves both the integrity of the medical profession and the general prohibition of killing, but at the same time makes room for rare exceptions via the prosecutor’s discretion. That’s messy, imperfect — and probably just about right.

John Perry is McDonald Postdoctoral Fellow for Christian Ethics & Public Life at Christ Church, Oxford. His book, ‘The Pretenses of Loyalty: Locke, Liberalism and Political Theology’, was published last summer by OUP.