I'm pro-assisted dying in principle, but I'm not sure about the proposed law

Is no law better than a bad law?

Often in life something that sounds great in principle turns out to be a terrible idea in practice.

I’m sure that in the Hollywood boardroom where someone pitched making a film version of the beloved musical Cats, everyone around the table quickly agreed that it would be a guaranteed hit.

On paper, it had everything. It was an existing IP, it has a memorable soundtrack, it would serve as differentiated counter-programming to the Star Wars film due for release at the same time. And it would have Taylor Swift in it. What could possibly go wrong?

But as we know now, it turned out rather differently. No one expected the VFX would transform the cast into grotesque, uncanny-valley furries – but that’s exactly what happened. And as a result, the film was a critical and commercial disaster.

Anyway, I was reminded of Cats by the recently proposed bill on assisted dying, which will shortly be voted on by Parliament. Not because watching the film made me realise that life isn’t worth living, but because despite the bill being a good idea in principle, I can’t help but feel extremely ambivalent about it in practice.

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Good principles

Long before Kim Leadbeater proposed her bill in Parliament, I was very supportive of assisted dying.¹

This isn’t because of any personal connection to the cause. I’m lucky enough that so far in my life, I’ve not had to experience watching anyone’s final days in close quarters. In fact, I’ve never even seen Cats, so in a sense I’m doubly lucky.

However, I do feel pretty strongly that confronting the grim reality of death, and offering people in terrible circumstances another option to end their pain seems like the most humane thing to do.

This is because, well, I’m a humanist,² I think that we should maximise human comfort in the one life we know we have – and sometimes, in very limited circumstances, that should mean allowing doctors to assist patients who want to die.

There are less philosophical arguments in favour of changing the law too.

If you read the Health and Social Care Select Committee report from earlier this year, it paints a complicated picture of the current legal landscape.

For example, over the years the law has evolved so that assisting the death of someone who is terminally ill and has made their wishes clear usually isn’t prosecuted, because it’s not deemed within the public interest. But despite this, people who are in this impossible situation are forced to endure sometimes years of investigation – with all of the anxiety and legal pain that entails.

The legal risk also extends to doctors. For example, if a patient wants to go to Switzerland to die with Dignitas or a similar organisation, they require a copy of their medical records to prove their terminal status. And if they ask a British doctor for a copy of their records, it isn’t clear if the doctor would be breaking the law by providing them.

And the existence of Dignitas creates problems in its own right. As things stand, the reality is that we currently have a de-facto two-tier system where people who can afford it can go to Switzerland to end their life – giving them an option poorer patients do not have.³

The current status quo on assisted dying, then, doesn’t really work. So I completely understand the desire by Leadbeater and others to create something which is better than… this.

However, this is where the issue becomes complicated – because now a proposed bill has been published, the question of assisted dying is a real debate. It has moved from the sixth-form philosophy classroom⁴ to a tangible political choice in front of legislators.

Awkward precedents

My mild scepticism towards the current proposal is driven by two factors.

The first is the evidence from overseas. In recent years, a bunch of countries have legalised assisted dying. This means we’ve now got actual, empirical evidence, on what happens when laws like this are implemented.

That’s why opponents of assisted dying can now point to dozens of lurid horror stories about patients who are not in the final stages of their lives being pushed towards assisted dying by overzealous doctors.

Most notoriously, this includes Canada, which in 2018 created the “Medical Assistance in Dying” (MAID) programme. Since there have been a number of high-profile cases where people have died (or were encouraged to consider it), as a consequence not of their medical condition, but because of the cost of their healthcare, or their not having the right housing.

Apparently the meme was made by the Trump-supporting organisation point Turning Points USA, so I presume they actually think the American option here is a good outcome.

Supporters of the Leadbeater bill of course insist that these incidents are rare. And in many cases, they haven’t actually resulted in the patient dying – because though there might have been one doctor encouraging it, the safeguarding mechanisms kicked in, working essentially as they should have done.

But I think it’s obviously true that regardless of specific case studies, if assisted dying was legal, it would shift the incentives in one direction. And this is important because patients would not just be making the decision on whether to pursue assisted dying in a vacuum. Instead, their choice will be viewed in the context of an existing health system where different actors each have their own complicated incentives, resource limitations and capabilities. All of which are factors that could weigh on the decision making.

There’s an illustrative example from overseas here: Back in 2008, in Oregon, where assisted dying is legal, Barbara Wagner’s health insurance provider controversially refused to pay for drugs to keep her alive – but did offer to pay for the drugs that would assist her death.⁵

On one level, on reading this I want to smugly point at how this is an example of the superiority of having an NHS. But even though most of us don’t have private health insurance, the health service does still make decisions about how to ration its resources. So I think it is legitimate to wonder how assisted dying might play out in a situation when resources are constrained and NHS managers are looking at a financial blackhole.

Bad bill

The second driver of my scepticism is, well, the Leadbeater bill itself.

I’m persuaded by the argument made Sarah Ditum that the bill is being rushed. This might be surprising, given that I’m broadly in favour of removing roadblocks and letting governments actually do stuff, but this is sort-of the problem. The bill isn’t a government bill – it’s being proposed by a backbencher.

This means that instead of being announced months in advance, with all of the layers of civil service consultation and Parliamentary scrutiny that usually entails, the specific text was only published a week ago, and the bill will receive its second reading on the 29th November.

And given the divisiveness of the issue, that doesn’t seem like a particularly long time for Parliament and civil society to poke at it and uncover any unintended consequences. In fact, in the short few days the bill has been a live issue, credible, expert legal critiques have already started to emerge.

For example, though Leadbeater promised that her bill will have the “strictest safeguards in the world”, there are questions about exactly how workable they will be.

This includes the much-touted role of judicial oversight. Essentially under her plan, before someone can get an assisted death, a high court judge would need to approve it. Which sounds like a good idea, but Lord James Munby, a former President of the Family Division of the High Court of England and Wales, argues that this wouldn’t be very practical given the court’s capacity to handle new cases, and lack of expertise in medical matters.

And I’m not sure whether I agree with this or not, but there was an interesting point made yesterday by the anonymous legal commentator “spinninghugo”. He(?) essentially argues that the current legal status quo, as annoying as it is (see above), is actually the better outcome given the circumstances. This is because it is better law to maintain the current standard that we don’t allow assisted dying, without introducing an asterisk containing many complex legal exceptions. Instead, it makes more sense to judge assisted deaths on a case-by-case basis.

It’s like that other thing

What I find most curious about the assisted dying debate is how even though the issue has only been the centre of attention recently, I’ve had a strange sense of deja vu watching the debate play out.

This is because it bears a very strange similarity to another social policy debate that has dominated our politics over the last several years. That’s right – I’m afraid I’m mentioning the trans stuff again. But it’s not really my fault – like assisted dying, gender sits at bunch of contentious policy fault-lines, which makes it inherently (a) relevant and (b) interesting.

And there are some really striking similarities with assisted dying.

For example, at its core, both are debates about the role of the state in what feels like a deeply personal decision – and the public policy questions involve a series of shitty trade-offs, that will make nobody happy.

And notably, the backlash for both is bifurcated in a way that you don’t see with every issue.

In the case of gender self-ID, there’s a significant difference between socially conservative, often religious opposition, and the (mostly left-wing) radical feminists. Both groups functionally want the same outcome (no self-ID) – but both are motivated by wildly different values and concerns.

And there is a similar split in the opposition assisted dying. On the one hand, there is predictable opposition from eccentric religious groups like Christian Concern, who literally cite scripture in their case against.

But then there are also the secular critique, like this one from Humanists Against Assisted Suicide and Euthanasia,⁶ which instead points to the practical difficulties of how to balance different interests and concerns – similar to the ones I outline above.

The reason I mention this parallel is that I think these similarities are more than just a curiosity. I think they also contain a lesson. One of the reasons gender self-ID received such a fierce, culture-defining backlash was because of the speed in which it, er, transitioned, from philosophy seminars into the next great “progressive” cause. Given how annoying the last decade has been – one second-order fear I have is that assisted dying could, if we’re not careful, become a similarly poisonous debate.

And from a cynical political perspective, as someone who is sympathetic to the Keir Starmer project, I worry that a badly implemented law could prove hugely damaging in a few years time. “Keir Starmer wants to kill your gran” could be the new “Keir Starmer doesn’t know what a woman is”.⁷

A shituation

If I was a proper columnist, I’d end this piece by saying “…and therefore, I have decided that the correct opinion is…”, followed by an explanation of how I’d vote if I were in Parliament.

But luckily, I don’t have to do that.

I’m glad that I’m not a politician who has to form an opinion on which way to vote – because though I’m supportive of the intentions behind the bill, I think the Leadbeater bill’s sceptics have a point on this one.

If there is one conclusion I can draw though, I think it is this: That even if you’re supportive of assisted dying on paper, there are very valid critiques on the other side of the argument that are worth engaging with. And the criticisms aren’t all religiously motivated – or at least, they don’t all require a religious perspective to cast doubt.

That’s why I’m deeply ambivalent. There are no particularly good outcomes here.

But if I was forced to pick a side? Given the criticism of the bill specifically, I think it would be sensible to abandon the Leadbetter bill, and for the government to go away and come back with something better later in the Parliamentary term. And it should present it as a government bill, so that it has the full weight of the civil service and the scrutiny process behind it. Doing so wouldn’t stop it being a “conscience” vote. But it might result in a more clarifying, and less compromised choice for MPs to make.⁸

So let’s remember the lesson of Cats: Even if it sounds like a winner in principle, it’s important to scrutinise every detail, lest your best laid plans end up as James Corden in a digital fur suit.

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1. I mean, it’s not like it was my top issue, but I was definitely on the “pro” side if asked about it.

2. I’m literally a card-carrying humanist, as a member of Humanists UK.

3. There’s also the issue of how Dignitas requires international travel, which often means that people seeking an assisted death die earlier than they may want to – as they will want to get to Switzerland while they are still able to do.

4. My school wasn’t posh enough to teach philosophy, but you know what I mean. The closest I got to questioning the meaning of existence was when I was getting beaten up in the changing rooms after PE.

5. It’s hard to know which of these campaign websites are just fronts for religious organisations or not – but this case study seems relatively solid, even if the people behind it do have a religious agenda.

6. I love you, humanists, but as a movement you are so consistently bad at naming things. Think of the acronyms!

7. It feels a bit crass to mention politics in a debate that is supposed to be about this deeply personal thing, but hey, politics is politics. And I’m not sure “it was a private members bill!” is going to prove as persuasive on the doorstep as Labour activists in 2028 might hope.

8. Though the use of a Private Members Bill has been used in the past for contentious social policy issues, like abortion in the 1960s, governments have also not whipped votes like this on government bills, like with gay marriage in 2013.