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The Falconer Commission: Further Discussion

The Commission

The objectivity of the so-called “independent commission on assisted dying” was always in doubt. On November 30th 2011 it was revealed that nine of the twelve Falconer commissioners were well-known names in the movement to legalise assisted suicide . The Commission was the brainchild of the campaign group 'Dignity in Dying' (formerly the Voluntary Euthanasia Society) and was funded by their patron, the novelist Terry Pratchett.  As Dr Peter Saunders, director of the Care Not Killing Alliance (CNK), of which we are a member said, this was a case of “cash for conclusions”.

Falconer tasked his Commission to do the following:

  • Investigate the circumstances under which it should be possible for people to be assisted to die
  • Recommend what system, if any, should exist to allow people to be assisted to die
  • Identify who should be entitled to be assisted to die
  • Determine what safeguards should be put in place to ensure that vulnerable people are neither abused nor pressured to choose an assisted death
  • Recommend what changes in the law, if any, should be introduced

Read the full report here

The commissioners consisted of Lord Falconer, the Chairman, who has a history of campaigning on this issue.  He submitted an amendment to the Coroners and Justice Bill which attempted to legalise assisted suicide.  The bill was voted on in the Lords on 7 July 2009 but did not pass. The other three parliamentarians selected were all known supporters of assisted dying.  Baroness Elaine Murphy of Aldgate voted for Lord Joffe’s Assisted Dying Bill in 2006, Baroness Young of Old Scone  voted for Falconer’s 2009 amendment, and Penny Mordaunt MP  is  the Chairman of the All-Party Parliamentary Group on Choice at the End of Life, for which Dignity in Dying provides secretarial support.

The medics on the panel were Professor Sam Ahmedzai, Professor of Palliative Medicine in Sheffield, Dr Carole Dacombe, Medical Director, St Peter’s Hospice, and Sir Graeme Catto, former President of the General Medical Council, all known to be supporters of assisted dying.  It is notable that  the BMA refused to submit a view to the Commission on the grounds that it was not independent and impartial. Dr Stephen Duckworth represented disabled people as the founder and former Chief Executive of Disability Matters Limited.  However, this is not a membership organisation and he is in fact self-styled as a “disability consultant”.

Lord Ian Blair of Boughton, former Commissioner of the Metropolitan Police, was known by CNK to be in favour of assisted dying. Writing about it later in the Independent he appears to be  influenced by how difficult it is to prosecute family members in hard cases, without realising that the law is there to protect the most vulnerable.

There were only two members of the final Commission whose views on assisted suicide were not already clear to the public, Dame Denise Platt, Member of the Committee on Standards in Public Life  and the Revd. Canon Dr James Woodward, Anglican Priest and Canon of St George’s Chapel, Windsor. The latter has subsequently called assisted dying “unwise” and was described in the Church Times as the “sole dissenting voice on the Commission”. 

 

Opposition to the Commission from the Beginning

Of those who were initially asked to submit views to the Commission, 46 individuals and 40 organisations [click to view full list] (plus the 40 members of the Care Not Killing Alliance) refused to take part. For many of these, the reason was that this Commission was clearly biased, lacking in transparency, and at best simply re-consulting on an issue that a House of Lords select committee had already delved into in greater depth than this committee was intending to do, through a 2005 official parliamentary inquiry. This covered some 246 Hansard columns and two volumes of 744 pages and 116 pages respectively, 15 oral sessions, 48 groups or individuals giving evidence, with 88 witnesses giving written evidence; 2,460 questions were asked and the committee received 14,000 letters.  Falconer’s enquiry, in comparison, was not only unbalanced but minuscule.  Consequently, it is no surprise that the Commission has found an overwhelmingly positive response to its questions. The verdict was entirely predictable because the jury was packed.

The organisations that boycotted the Commission included those who aim to protect the vulnerable, disabled and elderly from feeling that they are a burden on society and that their lives are less worthwhile than other people’s.  Notably these include the BMA, and the major disability rights organisations RADAR, UKDPC, NCIL, SCOPE and Not Dead Yet.  The reality is that the disabled are overwhelmingly against any change in the laws which at present protect them. 

The overwhelming consensus from the beginning of the process was that this committee would make recommendations that questioned the value of vulnerable peoples’ lives, or made vulnerable people question the value of their own lives to society.  The so-called “right to die” can so easily become a duty to die”.

Many legislatures have rejected such propositions, because the more closely people study the subject, the more they see the dangers.

In every country where assisted suicide is legal there have been abuses, and its legalisation would put all vulnerable people in the UK at risk.  The moment we start judging the value of other people’s lives, we stop making their protection and quality of life our priority.

 

Falconer’s Conclusions

“Under the proposed framework, a dying person who met the legal criteria would be able to ask their doctor to prescribe them a dose of medication that would end their life.  The person would need to be able to take the medication themselves, as a clear expression of the voluntariness of their choice. Appropriate practical support to take the medication should be provided if it is required by a terminally ill person with physical impairments but this could not take the form of another person administering the medication on their behalf (euthanasia).  The Commission does not propose that any form of euthanasia might be allowed if the law were to be changed.”

Falconer calls his proposals “a significant step that we believe would make the process of dying more humane, both for people who want some degree of control in their final illness, and their loved ones who are left behind.”

However, three of the key examples that he used – Debbie Purdy, Tony Nicklinson and Daniel James, and their relatives who would like to be able or have been involved in taking the lives of these three are not eligible.  Falconer appeals for compassion for these three, but at present Debbie Purdy and Tony Nicklinson have potentially years left to live, and Daniel James, the Welsh Rugby player who was paralysed and was taken to Dignitas to die by his parents, was not terminally ill.  Notably, all three required euthanasia, whilst the Falconer Commission only looked at assisted suicide.  This betrays the fact that whatever Falconer says about this framework, its intentions go far beyond making assisted suicide available for only a few.

The proposals also seek to make sure that those who help their “loved ones” to die are not prosecuted.  Relationships are complex, and death is a very final decision.  Changing the law so that a few people are not prosecuted, but opening up a large number of vulnerable people to coercion or death entirely against their will from those who are meant to love them is wholly wrong and very frightening, and it is irresponsible of Falconer not to see this.

The Commission states that good quality and readily available palliative care is central to any proposals, but Falconer wrote in the Guardian, “Regardless of the quality and provision of palliative care, some people want to die, and some have pain that cannot be totally alleviated.”

With all three of these ideas, it must be remembered that hard cases make bad law, and the suffering of the few  should not put the majority at risk.

Dr Peter Saunders from CNK summarises the Falconer Commission’s findings as follows: 

“This deeply worrying and flawed report does not add a single new argument or fact to the debate on assisted suicide and euthanasia and should be seen for what it is, part of a concerted effort by those who back assisted suicide and euthanasia to change the law.”

 

The recommendations in more detail

The Commission predictably decided that assisted dying should be permitted under certain circumstances.  The premise of the report, as with the Commission, is that “The Current Legal Status of Assisted Dying is Inadequate and Incoherent”.  The simplest answer to this is that, yes, 20-25 people each year abuse the law and have an assisted death at Dignitas in Switzerland. However, this number is minuscule compared to how many people could be expected to end their lives if either a Dutch or an Oregon style model were to be introduced.  In the case of the former we would expect 13,000 assisted deaths annually, and in the case of the latter, 800.  The law protects the majority.  We do not legalise theft because there will always be thieves, despite the fact that there are many more thefts than there are people seeking assisted dying, because the negative impact on the rest of society would be horrifying.

The Commission recommends that if Parliament were to decide to adopt assisted dying legislation in the future, this should include the following eligibility criteria (our comments are in italics):

1.     The person concerned is aged 18 or over and has a diagnosis of terminal illness.

We respond: At the most basic level, it can be seen that definitions of terminal illness vary. The report itself quotes the medical director of an English hospice (P196) “We are all going to die, so when do you call something a terminal illness?”  Further, the accuracy of prognosis can be poor.  The Commission recommends that only those with less that 12 months to live should be eligible for assisted suicide.  However, Stephen Hawking was given two months to live several decades ago.

2.     The person is making a voluntary choice that is an expression of his or her own wishes and is not unduly influenced by others.  

We respond: How can a doctor who does not know the patient well establish whether or not he or she is being coerced in a decision to die?

3.     The person has the mental capacity to make a voluntary and informed choice, and the person’s decision-making is not significantly impaired as a result of mental health problems such as depression.

We respond: It is natural to be sad following a poor prognosis, and this sadness may go away over time.

 

What are the safeguards?

Lord Falconer, the Commission’s chairman, has admitted the plan is not perfect, saying: “I don’t think you can ever have a system that is completely watertight.”

The safeguards recommended in the report are quoted below, our comments being in Italics:

“The Commission recommends that any future legislation should also include the following safeguards to ensure that potentially vulnerable people were protected:

1.     A decision-making model involving the assessment, advice, support and independent judgements of two independent doctors, with support from other health and social care professionals where necessary.  Obviously only doctors already in favour of assisted suicide would agree to take part.

2.     A safeguard to ensure the person has been fully informed of all other treatment and end of life care options that are available and still wishes to proceed;

3.     Safeguards to ensure that the eligibility criteria are met 

The eligibility criteria (P30) are as follows:

“The first criterion requiring a diagnosis of terminal illness would need each doctor to certify that the person had an advanced, progressive, incurable condition that is likely to lead to the patient’s death within the next 12 months.

The second criterion, requiring that the person requesting an assisted death made this request voluntarily and without coercion, would require both doctors to explore thoroughly the individual’s motivation for requesting an assisted death and to provide evidence of this voluntariness.

The third criterion would require that the individual has the mental capacity to make an informed choice. We received evidence to the effect that capacity assessments are part of every doctor’s usual responsibilities. “

As we have previously mentioned, prognoses that a person will die within 12 months are inaccurate, so this cannot be seen as an adequate safeguard even by those in favour of assisted dying.  

4.     Safeguards to ensure that the person has a settled intention to die

The document goes into greater detail (P30), stating that “the proposed safeguard is that a minimum time period of two weeks must elapse between the request being made by the subject, and the assisted death occurring.”  People’s intentions can change greatly over time, whereas two weeks is a ridiculously short time to have been suggested.

5.     Safeguards to ensure the safe storage and transportation of lethal medication

6.     Safeguards to ensure the person has a reliable and supported assisted death

7.     Safeguards to ensure that assisted deaths are reported correctly

8.     Monitoring and regulatory oversight by a national monitoring commission with powers to investigate suspected non-compliance.”

 

Views from the Vulnerable

One of the best ways to look at the impact of this commission is through the eyes of the vulnerable, as they are the ones who would be most immediately affected by any change in the law:

Michael Wenham (MND patient)

"So what will society say to me when I get near the end of my MND – if it’s not to allow someone to top me when I’ve had enough?  I hope it will say, “We will see you through this.  We will give you the best quality of life that’s possible.  We will provide all the palliative care that you need, including supporting your carers.  We will do everything possible to ease your symptoms and to control your pain.”  And I would say, “Please keep me comfortable.  If the pain relief should shorten my life by hours or days, that’s all right.  You’re only doing your job.  And when I should die, just let me be.

"‘Children in Need’ projected on our TV screens the courage and beauty of disabled, dependent and often dying children.  It showed us the incredible endurance and compassion of those who care for them.  There can be no question as to their worth and of the value of enhancing or at least ameliorating their lives.   We know it's right.   The society which cherishes life, even at its most tenuous, is far preferable to one which admits the principle that some lives are disposable.   'Children in Need' or the 'Commission'?  I know which vision I prefer."

Richard Hawkes (Chief Executive of the disability charity Scope)

“The current law on assisted suicide protects disabled people from being put under pressure to end their lives.

“The 'safeguards' …rely on the objectivity of doctors and social workers. Yet we have seen that medical and social care professionals themselves can make negative assumptions about disabled people’s quality of life.”

Kathryn Higham (MS patient)

"Before I was diagnosed with MS I used to have a very negative view of this type of illness but since I was diagnosed I found I have a very positive view.  People with serious illnesses who campaign for assisted suicide make it look as if everyone with MS wants to die. You never hear of the people with terminal illnesses who die a peaceful, dignified death. Having a positive attitude is 50% of the battle. “

Peter Bailey (disabled for 35 years following an accident and a trustee of Leonard Cheshire Disability

“Why it is that suicidal tendencies in non-disabled people trigger the possibility of being  sectioned for your own good, but when we look at disabled people it’s somehow expected and understood that you might want to kill yourself?”

 

From these quotations  we can see that the disabled are scared that legalising assisted suicide would mean that their care was cut, that they could be seen as a burden on the state and society, and that hospitals would be a place of danger rather than a place of safety for them.

For an inspiring account of life after paralysis, read about Matt Hampson, a former U-21 England player who has gone on “help those less fortunate than himself”.

 

 

Dr Mike Cheeseman, Consultant Geriatrician, talks about assisted dying and the care of the elderly.