Alan Rusbridger, editor: Let me turn to you first, Brenda. Should assisted dying be legal?
Brenda Hale: My view is public knowledge, because I wrote a judgment [in 2014] in a case brought by Tony Nicklinson, who wanted it to be declared that it was lawful for people to assist him to take his own life. He was suffering from a completely disabling illness, but he wasn’t terminally ill. Two of us took the view that there was a human right to decide the time and manner of one’s death—that it’s a matter of dignity and autonomy. We would have been prepared to make a declaration that the current law on assisting suicide was incompatible with the Human Rights Convention.
Alan: You were in the minority?
Brenda: There were nine of us on the court. Of that, five of us took the view that when the time was right, the court might make such a declaration of incompatibility. But three of those five thought the time was not yet right.
Alan: Rowan, what’s your starting position?
Rowan Williams: My starting position is that, from my own personal religious standpoint, I couldn’t countenance assisted dying for myself. It isn’t compatible with my Christian commitment. Now that, of course, isn’t something I can impose by law on anybody else, but it is my personal starting point. I have to put that on the table just in case anybody thinks I’m going into this with an open mind.
But, given that starting point, I’m probably disposed to look rather more closely at the pragmatic arguments against it—the difficulty of clarifying a great many of the conditions that might make it workable; the possibilities of pressure and abuse; and so on. But I’d quite like to pursue this a bit with Brenda: exactly what is it that constitutes a right to determine the time of one’s own death, and on what basis?
There’s quite clearly a very strong case for there being no discrimination between, as it were, petitioners for assisted dying, and so an assumed general duty of others to assist or facilitate, and that gives me some concern, both in principle and in terms of the history of what’s happened in jurisdictions that have changed their views on this.
Brenda: Well, of course, there’s a difference between positive freedom and negative freedom. The right which the European Convention is mainly concerned with is negative freedom: that you should be free to do that which you, in the exercise of full autonomy, have decided to do, not that anybody else has a corresponding legal duty to assist you. They may have the freedom to assist you, but they don’t necessarily have the duty.
So that’s the concept of a right that I’m thinking about. I would never impose upon anybody a duty to help people to die. And I would also draw a distinction which the law has drawn for a very long time, between “killing” and “letting die”.
What’s usually referred to as euthanasia is where the other person administers the lethal dose, as opposed to letting the person do it to themselves, or helping the person to do it to themselves. I think I would stick with that distinction as being morally quite plausible, but also as a practical safeguard.
Rowan: I have no problem at all with the distinction between “killing” and “letting die”. There is—I suppose, in some not terribly intelligent religious quarters—the view that there’s a religious duty somehow to keep people alive at all costs, which is a rather strange view for religious people to take.
Equally, I think there’s an assumption by some advocates of assisted dying that those opposed to it are therefore committed to the idea that life is to be preserved at all costs and whatever the suffering. So I think there is a distinction.
I’m not trying to draw the line quite where you do, because the facilitating of somebody else’s decision isn’t something that happens in a vacuum—either relational or institutional—and that’s where my concerns arise. About pressures, about external constraints—emotional constraints, and, of course, financial constraints in a strained health service.
Brenda: Well, I thoroughly understand all those practical worries. And all the legislation has contained a range of safeguards, which some will think sufficient and some won’t. They have mainly involved both external expert evidence and, in the case of the bill currently before parliament, the sanction of a high court judge. Now I put that into my judgment in Nicklinson purely because the High Court judges were used to making decisions—life and death decisions in different contexts—and so it wasn’t anything that would be new to them. But of course, it’s the quality of the evidence that counts.
Alan: Do you believe that being able to choose the time and manner of your death is a human right?
Rowan: Well, I don’t think that is compatible with how I understand Christian ethics, but that’s an in-house concern. I don’t believe in such a right as such. If the law recognises that in the terms that Brenda’s outlined, that is what the law should be based on. Well, let’s see how that works out. But I would prefer not to take that risk for pragmatic reasons.
Alan: Is your personal conscience so intertwined with your faith that you can’t make a distinction?
Rowan: My faith shapes my personal conscience. That’s where I begin from, yes, so I wouldn’t draw a distinction. But I can’t simply stand up, so to speak, in the public sphere and say, well, “scripture and tradition say ‘do this’” and expect everybody to fall in line. Part of my own conviction is that ethical positions in my faith are not arbitrary. They have something to do with the human good. So I would expect there to be pragmatic reasons against it, as well as purely principled ones.
Alan: And what does scripture say about this issue?
Rowan: Scripture says very little indeed. There’s a definite lukewarmness, let’s say, in scripture and in Christian tradition, about suicide, the right to end your life. There’s a general conviction that every particular moment of life has to be an opportunity for a positive response to the world you’re in and the people around you, and to God finally. And therefore to cut off that process of response is something which ought to be, let’s just say, extremely problematic for somebody living with faith.
Alan: I should have asked you, Brenda, if you have any faith.
Brenda: Oh, I’m a mildly practising member of the Church of England. One of the attractions of the Church is that it is prepared to admit so many different views about even issues like this. I do think that Christian values are about good for people. And the most striking thing about the cases that we had to look at was the unbearable suffering of the people concerned. And to my mind, it’s not a very Christian thing to do to oblige somebody to go on suffering unbearably when they do not wish so to do, and when they are in full possession of their faculties. We can talk about what that means. To force life upon them by denying them the assistance they need still seems to me to be a terribly cruel thing to do.
Rowan: I don’t think that anybody with reservations about assisted dying would say that there’s any will to “force”. Can I just think aloud for a moment? There’s the question of—this sounds so cold-blooded, but it has to be put on the table—how precisely do you assess a phrase like “unbearable suffering”? Like most of my colleagues in ministry, I’ve sat with people dying in pain, great pain. I’ve sat with people in their last days, and I’ve spent a fair bit of time visiting hospices over the years as well. It’s not, for me, an abstract question. Just in recent years, having sat with close friends and family in these circumstances, the last thing I want to do is to say, “well, just man up and put up with it indefinitely.”
I don’t know what your feeling is about this, but I sense a real debate among physicians on some of these matters. How prevalent is “literally unbearable and uncontrollable, unmanageable pain”? Now, of course, you might say even one person living in that condition is too many. But for a lot of people who share my reservations, we would say that with the proper accessibility of first-rate palliative care—even with the resources currently available—there are very, very few people who would have to be in that position.
Brenda: I think there are a few things to say about that. The first thing is, I share the view that there ought to be the best quality palliative care available to everybody who needs it, and it clearly isn’t at the moment.
The main practical objection which I see to any legislation is that it might reduce or delay the provision of adequate palliative care. But we know that there are many people for whom palliative care does not relieve the pain or the suffering. And the number of people who, even with the best quality of care, are nevertheless suffering unbearably, does seem to me to be quite considerable—certainly from people in my own family that I know about—and the letters that I get tell terrible stories. So we have to be concerned about the fact that people are suffering.
But, of course, one of the most controversial things is whether such legislation should be limited to people suffering from terminal illnesses who cannot be cured, or even treated properly, and are expected to die within a certain length of time—it’s six months in the bill, and in some states of Australia it’s 12 months in certain circumstances. But of course, the Tony Nicklinsons of this world were not terminally ill. He could have gone on to a normal lifespan in the condition in which he was. But the condition in which he was was so terrible that he couldn’t bear it any longer, having borne it for several years, Listening to his wife and his daughter talking about this was very moving, and leads one to think that suffering is a subjective thing rather than an objective thing. Some people suffer what others would find unbearable and are completely content with it. So in the end, it has to be the decision of the person concerned. [Nicklinson died in 2012 after refusing food.]
Rowan: Is that something you’d say, without qualification? Because one of the things that does worry me, I suppose, is the changeability of some people’s perception of their own suffering—the status of mental, as opposed to physical, suffering. There are jurisdictions where acute, ongoing mental distress is seen as a sufficient reason for this kind of solution. The last thing I’d want to do is to make light of the situation you described. To be honest, I have no clear notion of what fully just and compassionate answers to that would be.
But I’m mindful here of something in Kathryn Mannix’s book on death [With the End in Mind]. She’s a palliative care professional and believes that a great deal of public discourse about death and dying is very ignorant. You know, people do not know what it’s like to die. They catastrophise, facing the worst.
She describes somebody in a hospital bedroom with a dying relative, saying: can’t you put him out of his misery? And she has to explain, actually, what you’re seeing is not misery, because processes that are going on may look terrible but won’t feel terrible because the consciousness isn’t there.
These are details of clinical practice, but add up to what is her very tentative conclusion on this, which is simply: be careful what you wish for. Because, given some of the confusion on this issue; given the fluidity and changeability of people’s understanding and perception of their own suffering; it becomes very hard to give unqualified support to the idea that someone’s assessment of their own suffering on a particular day is the last word.
Brenda: There are things that you can build in, like the length of time that somebody has been in the condition in which they are, which I think was very influential to my own thinking in the cases that we had. These were not people who’d given up the moment they realised that they couldn’t move. These were people who had lived with not being able to move for several years. And I think that if you look at it with those sorts of safeguards in mind, one can come to a conclusion which allows them to do what they have decided, but also allows for them to change their mind right up to the last moment.
Rowan: So could I just press a little bit more on this question of whether there’s the risk, as some people say, of a challenge on the grounds of discrimination? You’re allowing assisted dying in these cases, but not those. It doesn’t apply to mental distress. It doesn’t apply to certain ages or conditions or whatever. Is there a problem there?
Brenda: Well, I think whenever the law draws distinctions, they have to be justifiable distinctions. And if one’s looking at it from a human rights perspective, the Human Rights Convention does not ban all differences of treatment in relation to the enjoyment of the convention rights. It bans those without a reasonable justification. The justification will be the aim and the means used to pursue the aim. So obviously, the aim of allowing those with full exercise of their autonomy as human beings to use it, but not allowing those whose autonomy was in some way constrained by mental illness or mental disorder—as well as duress or undue influence—that will be a justifiable difference of treatment. So we have ways of analysing these things.
Rowan: Does that then mean that somebody judged not to have the mental capacity to make a decision must go on suffering in a way which presumably they would not have wanted to, had they still been in full possession of their faculties?
Brenda: The difficult question is people with acute mental suffering. I would come back to the definition of mental capacity that is in the Mental Capacity Act. The most important aspect of that is the ability to understand the information relevant to the decision you’re taking, the ability to hold that information in your head for long enough to take the decision and the ability to use and weigh that information to make a choice. If the ability to use the information to make a choice is compromised, well, then you lack the mental capacity to do it. And it may indeed mean that those people do have to go on suffering in a way that if their illness was physical, they wouldn’t.
Rowan: Do you see any problem about—I know it’s a cliché—but the slippery slope argument that pressure accelerates to loosen criteria, to move a bit further towards active initiative from somebody to accelerate death?
Brenda: Well, yes, there are always slippery slope arguments. It’s very important to maintain whatever the principal distinctions are that have been adopted. I would stick with physical conditions that are causing the unbearable suffering, because I think there is a principled reason for doing that, and I would be very reluctant to allow this to be done by children—18 might be too young a cut-off point. I would also be reluctant to depart from the distinction between “killing” and “letting die”. In other words, “assisting suicide” is different from actively killing somebody. So those are my red lines.
Rowan: There are jurisdictions, aren’t there—I think, in the Netherlands— which are quite flexible about mental suffering and also about the age question? Again, I wonder whether, given the pattern emerging of people taking advantage of other jurisdictions to solve their problems, there’s a consequent backwash of pressure on our own jurisdiction to adjust accordingly…
Brenda: Of course, one of the potential safeguards that they have adopted, certainly in Australia, is you have either to be an Australian citizen or have been resident in Australia for at least a year, so that it’s not allowing the sort of assisted suicide tourism that is permissible in Europe.
Alan: How do you deal with the pressure questions—pressure from family or financial pressures? What safeguards can you build in?
Brenda: Well, you can build in the safeguards that the decision must be made without undue influence, coercion, duress or fraud. But in the end, it’s a matter of evidence, isn’t it? One of the things I find most difficult is that I don’t think it’s necessarily irrational for somebody to take into account the suffering their suffering is causing to the people dear to them, or the burden that looking after them is placing upon the whole community.
I wouldn’t call that “undue influence”, but it’s one of the questions I find most difficult about all of this. You know, obviously there’s duress, there’s financial abuse, there are all of those sorts of things that have got to be checked against, and there ought to be objective evidence of absence of that. But when it comes down to somebody thinking, “I don’t want to be a cause of others suffering,” that seems to me to be a reasonable thing for somebody to take into account.
Rowan: I see what you mean there, but I couldn’t easily use the word “rational” about it, because I don’t quite know how you’d make a rational calculation about that. You may be, as a matter of fact, a burden on those closest. They may also say, “but I gladly bear it and it would distress me enormously to think that you were taking the decision in order to spare me.”
Brenda: But I think that an important part of the evidential question is, “has that conversation been had?”
Rowan: Well, I think one of the questions I want to ask is, “how much have you talked about what actually is the impact on those you’re closest to?”
Alan: Can I ask about animals and your attitude, or your faith’s attitude, to easing the death of a dog or pet—animal life, as opposed to human life?
Rowan: Yes, it’s one of the things that gets said, “you wouldn’t let a dog suffer like this.” No, you wouldn’t, but I think that’s partly because however strongly one believes in animal rights, the reciprocity of the relationship, the conversational nature of the relationship, is not the same there. So I can understand why good deaths for animals make some sense, because there isn’t that mutual investment.
Alan: Can you just explain what that means?
Rowan: What’s in my mind is that, as human beings, we talk to each other about our sensations, about our feelings, our hopes and fantasies, and we make our decisions in that context. With animals we have less to go on. We have evidence of turmoil, suffering. We have evidence of distress, capacity, and nothing much else to put into the mix with human beings.
Alan: Have you had a pet put down and did it trouble your conscience?
Rowan: In my conscience? No. My feelings? Yes. It was the right thing to do.
Brenda: Well, I’m very interested, Rowan, that you didn’t bring the Christian idea of humanity as made in the image of God into your reply because I think that that is one of the arguments, clearly, that is used by, certainly by Christians, and possibly by the other Abrahamic faiths.
Alan: My father, when he was dying, said exactly that ; “you wouldn’t do this to a dog,” and I felt quite bad about that. I thought, “you’re right, we wouldn’t.”
Rowan: But there are, I suppose, reasons why we wouldn’t do it to a dog, and we would do it to a human being. And the language is interesting there, isn’t it, because is “doing something to” perhaps a little bit different from what we’re talking about here?
Alan: Brenda, you’ve obviously looked at other jurisdictions. Where do you think it’s working best?
Brenda: Well, I haven’t looked recently in detail at places where it’s been in place for some time. I have looked at the very recently introduced legislation in the Australian states, and that looks to me to be well-designed with a group of criteria and safeguards which seem to make sense to me. And of course, nothing is going to happen in a hurry here, so there will be time to look at what’s happened in all the other places where this is going on, and to ask oneself, “Well, is that a good reason not to do it, or is it a good reason to do it better?”
Alan: Now can I ask the opposite question? When you look around the world where this has been tried, where do you think things have gone wrong?
Brenda: Well, as I said earlier, I’m worried about extending it below the age of 18, and I am worried about extending it to mental illnesses as well as physical conditions. The other thing that really, really worries me, as I said earlier, is that this should not be used as a reason or an excuse for failing to develop the services which can be of the greatest benefit to people in relieving their suffering, particularly towards the end of life.
Rowan: From what little I know it sounds as though the Belgian and Dutch experience is not the direction you’d want to see us going in, because those have, as I said, fairly flexible approaches, both to the age question and to the mental distress question.
If we could come back to the financial question, because looking at the NHS at the moment doesn’t make one terribly sanguine about the breathing space to develop the kind of serious investment in palliative care that we need. So we do need to ask whether a credible and durable model of public health can sustain the same or better level of investment in the palliative sector.
Brenda: No doubt all of that, but I would still not be in favour of delaying allowing, in certain circumstances, people to be assisted to take their own lives in situations where it is cruel to deny them that assistance. But it has to go hand in hand probably with stronger duties on the NHS to provide the care which would make these cases rarer than they currently are.
Alan: Rowan, you talked about your own pastoral role in respect to this. Was there ever a case that made you have second thoughts or question your own view of this, where you just thought, actually, this is unbearable?
Rowan: It’s difficult to answer because I think there are different ways in which this comes through. I have been in the presence of somebody dying in very great pain, who was determined not to have this accelerated because they believed they needed to retain consciousness and see it through that way. Rather unusual person, as you can expect. On the other hand, I have seen other instances where people have, over a period, repeatedly said, “I’d do anything to have this over,” and then have emerged and said: “Well, that was truly how I felt and how I was experiencing it, but it’s not where I am now.” So I’ve never found it something I can just sit with, in complacency. And I think every time you sit with a person dying in extreme circumstances, the question is bound to come up. So I still am unpersuaded, but it’s not a comfortable place for anybody to be, I think, on either side of the argument.
Alan: Do the bishops constitute a block vote on this? I mean, are there any bishops with a different view?
Rowan: I suspect they would agree, but I’m not certain. The exception, of course, is my predecessor, George [Carey]. [Carey said in July 2014 that he has dropped his opposition to the Assisted Dying Bill “in the face of the reality of needless suffering”.]
Emily Lawford, commissioning editor: How would you distinguish assisted dying from something else the Bible’s against, like adultery? Why is your faith more relevant in one?
Rowan: I’m speaking about the way in which I approach moral decision making, whether it’s in terms of sexual ethics or in terms of end-of-life care. And I come to that with a set of convictions about actually, what the image of God in humanity entails; what human fidelity and difficult circumstances entail; and that’s something which applies, perhaps in both contexts. So that’s certainly where I’m starting.
But I think what I’m trying to say is that I am seeking to find some arguments that might persuade those who don’t share that faith to share my hesitation about this. If they don’t, they don’t.
I’m also interested in exactly where, and how, shifts in opinion around this happen. I think in the last decade, we’ve probably seen a very significant groundswell of support in the general public, and a bit of a shift in some, but not all, bits of the medical profession.
We haven’t really talked about the attitudes of the medical profession, which seem to me quite complicated and quite diverse on this because there are issues about the patient’s trust in the medical profession here, which are not trivial. I remember reading about a case of someone who had relocated from the Netherlands to England because of the experience of being pressurised in hospital, not literally pressurised, but repeatedly asked, day after day, “are you sure you don’t want to end your life?”
Brenda: Exactly the same problem arises with Do Not Resuscitate notices. You know that in this country, people, patients and families are repeatedly asked by the medical staff about whether there should or should not be such a sign, which is morally just as difficult I think.
Rowan: I wonder, because if we’re defining the process as one in which you initiate a procedure whose primary purpose is accelerating death, which I take to be what assisted dying entails, rather than continuing an existing process whose continuation is likely to result in death. I think there is a moral difference.
Brenda: Basically, not bringing people back to life.
Rowan: Yes.
Emily: What about cases involving dementia?
Brenda: Well, I think the question of timing is pretty crucial to making any system work. I think the person has to stay with mental capacity until the time when the assistance is given, so that they can always change their mind up till that time. I know that there are other people who take a different view and believe that it ought to be possible to have advanced directives (living wills) authorising this as well as the refusal of treatment. I would not want that to apply to somebody who didn’t, at that moment, have the capacity to change their mind.
Alan: Just to go back to where this began, the Tony Nicklinson case. Brenda, do you think that it would have been wrong for the Supreme Court to effectively change the law with something as far-reaching as this?
Brenda: Well, the Supreme Court would not have been changing the law. The model that we have, unlike just about everywhere else that has a constitutional Bill of Rights, is that if something is contained in an Act of the UK Parliament, the courts cannot strike it down as invalid.
All they can do is say that, in our view, this is incompatible with the rights set out in the European Convention, and then leave it to parliament to decide whether they’re going to do anything about it, which is a very good model, it seems to me. It’s leaving the eventual decision to parliament, but it is enabling the courts to look at the arguments and present parliament with a dilemma: do they or don’t they do something about it? And of course, if they don’t do something about it, there would, in certain circumstances, be a risk that the UK will be found to be in breach of the European Convention in the European Court of Human Rights in Strasbourg, but not if something was within what we call the margin of appreciation.
There’s quite a debate going on, in legal circles, at least, about whether, if something is within the margin of appreciation—which Strasbourg would leave to each member state, because there isn’t a sufficient European consensus on the matter at present—the courts or only parliament is entitled to say that it’s incompatible.
This transcript has been edited for length and clarity.
