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Intelligence Squared
Do We Have The Right To Die? With Lady Hale and Rowan Williams (Part One)
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Mia Sorrenti
welcome to Intelligence Squared, where great minds meet. I'm producer Mia Sorrenti. Should assisted dying be enshrined as a fundamental right, or does it place our most vulnerable citizens in profound danger? Lady Hale, former President of the Supreme Court, and Rowan Williams, former Archbishop of Canterbury, went head to head to debate this urgent and divisive question live on stage at King's Place in London. Dismay. Intelligence Squared staged this live debate to mark the launch of do we have the Right to Die? The second book in our Partner To Think Again book series, part published by the Bodley Head. Today's episode is part one of this discussion recorded live in London. Let's join our host, Dr. Zan Van Tullikin, live at King's Place.
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Dr. Zan Van Tullikin
Well, thank you very much everybody for coming out on a Wednesday evening to deal with. I think it's quite a big topic for a Wednesday evening and I should say I feel a tremendous sense of, of gratitude and respect for the fact that this is it is a big topic. And you know, I have small children. The middle of the week is tough. Engaging with this topic is not something that everybody wants to do all the time. It's not an easy thing to think about. It's deeply complex. It does not seem to bleed into the culture war because it's so complex. It doesn't sort of easily divide us on lines. It perhaps divides us more on what we're willing to imagine and what we'd like to imagine for ourselves and for our family members. So it's something I trained as a doctor. I spent many hours by bedsides talking to patients who said a version of could we turn the machine off Now. And sometimes I would get a call back to the wards and in a very English way, they'd say, could I have one more go at the machine? And you'd say, absolutely. You know, don't feel bad. And then I'd be called back a couple of hours later, I think I'm done with it. Can we turn it off? 30 minutes later, I'd be called back again with real English awkwardness. I'm actually not ready to die. Could we turn the machine back on again? And this might go on all night, and sometimes in the morning they'd say, oh, I'm glad I stuck with it. That's great. And actually they'd leave hospital. And other times they wouldn't be glad they stuck with it. So I don't think there's any straightforward ways through this. The other thing I should say, because we will each discuss our personal points of view. My family is Canadian. My mother is in the audience. She's Canadian. My son lives in Canada. And in Canada, they do have medically assisted dying. And this is something. So I put it on the family, Canadian family, WhatsApp group, knowing that I was doing this, thinking, what will the response be? Will they know about it? Will they be aware of it at all? It accounts for 5% of deaths in Canada. And every single person in my family, young or old, cousins, aunts, uncles, all of them knew someone who had taken this option. So we have a country that is incredibly culturally similar, similar demographics, who use this service all the time. It's a very, very common thing to do, and that should force itself on our minds. You may find that horrifying, you may find that invigorating and thrilling. But I think this is why it's so important that you're here tonight. So I'm very grateful that you've all come out. I want to get a sense of the mood in the room. You've been sent a QR code beforehand, so you may have voted. If not, there will be a QR code coming up. Now, we want to get a sense of it. If you can't work the tech, I will ask you to stick a hand up, just because if no one can work the tech, then there's. Then the vote won't mean very much. And the thing that we were discussing before we came in the room was that if you vote, by all means, say you're undecided. The issues are complicated, but if you pick a side, you might listen to things a little bit differently, even if you're wavering. So we would strongly encourage you to vote. And we're going to vote now, just to be clear. Go through and start doing it, because then we'd love to get another vote at the end and see if you represent what we think the British public want and see what the general mood in the room is. Does everyone understand that? Has everyone got the QR code? Is that sort of nod if it's sort of. And people are voting? Has everyone who hasn't voted yet? Okay, so if you have. That's good. That's good. So while you're voting, I'm going to take the opportunity to say that this book is absolutely fantastic. The authors are on stage in front of you. It has been brought out with the idea of informing the public. And this is something that every single person in this room, every single person you know, has a massive stake in. And there may be a moment in your life where you regret the outcome one way or another, or you wish for it one way or another. And so this book will give you a deep sense of the morality, the legality, the technicality, all the different aspects of it. Most importantly, it is not on sale to the general public until tomorrow. So if you pick one up tonight for your Friday night dinner party, where you have to raise this with everyone, people will say, what did you do this week? And you'll say, on Wednesday night, I listened to Baroness Hale and Rowan Williams and they told me this stuff. And now this is my opinion. And you'll have to defend it because people will be excited or annoyed or thrilled or curious. And so this book is for sale. I would strongly encourage everyone to get a copy and get several copies. I don't know if it's a stocking filler, but fortunately. Fortunately, we're in May, so it's a summer blockbuster instead. Is it beach reading? Is that now? Have people voted? Because I'm just. That's great. So I'm just really trying to. That's great. But do. And there will be signed copies afterwards. Here we go.
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Rowan Williams
Oh, look at that.
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Dr. Zan Van Tullikin
Oh, wow. Okay, so we have 69% yes, 10% no, and 15% undecided. Well, it will be very exciting to know if people change their minds. More importantly, I think you may. People may go in any direction, but I think both our speakers will be incredibly thoughtful. I'm going to introduce them. I'm going to introduce them one at a time, come with a question to you each, just to sort of set the scene, and then we'll go from there. Our first speaker is Brenda Hale, Baroness Hale of Richmond, Lady Hale became the first woman, the youngest person to be appointed to the Law commission where she oversaw reforms in family law, in mental disability law. She was the first woman to serve on the Supreme Court. She was the president of the Supreme Court from 2017 to 2020. We could not have a better person to make the case and to explain the difficulties of this. Brenda, can you start by laying out why this matters, the direction you think things should go in? Why is this so important for us all to think about tonight?
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Brenda Hale
Do you know, I was thinking when you were putting the questions to the audience that it would be a real plus, wouldn't it, if all the audience at the end of tonight was undecided. So question, do we have the right to die? And of course it does all depend what you mean by a right. I am a lawyer, so I would distinguish between two different sorts of right. A negative right, which is the freedom to do something without being interfered with either by the state or by other people, and a positive right, which is the right to be provided with something by other people. Now, we already have the negative right to die because we are free to refuse life sustaining treatment, including fairly aggressive life sustaining, like the machine you were just talking about. We have the right to refuse food and drink. We have the right to refuse drugs that will cure a terminal disease that we have. So we already have that freedom. We have the right to take even more active steps to kill ourselves because suicide is no longer a crime. So the question really is, are we also free to seek the assistance of somebody else to help us die when we can't do it ourselves or we don't fancy any of those options? And the case that we had in the Supreme Court that asked that question very forcibly was a case concerning three people, but one of whom was Paul Nicklinson. All three of these people had suffered catastrophic injuries and were now very, very seriously disabled, unable basically to. To move other than to blink an eye or sometimes to move their head occasionally just to move an arm a little bit. But they were very seriously disabled. They had been so for some years and had reached the conclusion that they did not want to go on. But they were none of them dependent on a ventilator. Had they been dependent on a ventilator, they could have said turn it off, but they couldn't do that. So their current choices were to refuse food, drink, essential medication. And all of them really wanted somebody to help them to die. And we in the Supreme Court were asked to make a declaration as to whether that was incompatible with their human rights. And the European Court of Human Rights in Strasbourg has said that there is a human right to decide the place and manner of one's own passing. And so two of us in the Supreme Court, there were nine of us, two of us took the view that denying people that right was obviously not always, but in the circumstances of those people, incompatible with their human rights. Three of the other justices said, well, yes, we might do that, but. But not now, not yet, because Parliament is thinking about it and we think it's not the right case to do it. And four of them said, even though the Supreme Court is free to declare that something, the current state of the law is incompatible with human rights, we don't think we should be doing it. So I'm afraid that case convinced me that there was no easily sustainable moral distinction between turning off the ventilator and helping somebody to have a peaceful, dignified death in those circumstances. So the issues are in what circumstances, what should the criteria be? And clearly there have to be safeguards and procedures, and so what should the safeguards and procedures be? And there's loads to argue about in relation to both of those things, all of those things. But the fundamental question, I think, yes, we should have the freedom to ask other people to help us to die. Those other people should be free to say, no, it's their choice just as much as it is the person who wishes to die's choice that sets us up.
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Dr. Zan Van Tullikin
Brenda, thank you so much for setting up the conversation so well. Our second speaker is Rowan Williams, Baron Williams of Oystermouth, former Archbishop of Canterbury until 2020, the Master of Magdalen College at the University of Cambridge. He is the author of many books and poetry collections, including Looking east in Winter and Holy Living. And he is deeply thoughtful about this and of course, brings a totally different, and perhaps it's not fair to say, non legal, but theological perspective, a different kind of law. Rowan, can you talk to us, perhaps in response a bit to Brenda, your views and the importance of this issue?
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Rowan Williams
Brenda began by clarifying the different ways in which we can approach the word right, negative and positive. And that's one reason why I personally find the language of a right to die not in itself very helpful. We're all going to die, and the right in question is, as I think you said, Brenda, the right to be free to decide when and free to ask for assistance in that process. Before I get onto the ethics of that, I think one of the issues that's bound to be around in discussion this evening is whether that second dimension of the right asking other people whether that entails the claim for, as it were, statutory provision for this. And that, I think is where we probably both agree that there's a rather gray area. Is this something which, if there's a right to ask for assistance in dying, is there then a duty, not just a moral duty for another individual, but a duty for the state through state funded medicine, to provide that facility? Cards on the table. You'll have gathered that I'm some sort of a clergyman, and therefore I. I'm speaking as a Christian who doesn't believe that I have, as a believer, I have the freedom to end my life. But that's my conviction. I recognize that it's a minority view and so I don't want to use the law to bludgeon people into that. But it is certainly something which I freely admit gives me a little bit of encouragement to ask some probing questions about a right to die conceived in this way as something which can be demanded of statutory authority and public funding. And that's where I think the discussion becomes pretty complicated. Complicated for maybe two main reasons. One is the very pragmatic one, which is to do with what I called in the book the triage question, the use of resources in a cash strapped, limited set of public provisions in the health service. Is it or is it not the case that assisted dying provided legally would erode or threaten existing palliative care provision? Palliative care used to be something which the United Kingdom is very, very good at leading the way in all kinds of respects. That's not quite the case now. The quality of palliative care in so many hospices is absolutely brilliant. Coverage, resourcing and research and development are more limited. If assisted dying becomes legal, what are the implications for that? Because if we're talking about freedom of choice, then of course, freedom to choose between assisted dying and an uneven and inadequately resourced palliative option isn't exactly the kind of freedom which immediately convinces. So that's one concern. The second concern is the familiar slippery slope argument. If the. A key element in the argument for assisted dying is that people in intolerable pain have the right to request something from the state, from the medical establishment, Is that a universal right? How do we decide exactly where the boundaries lie? The trajectory that we see in other jurisdictions that have legalized this is towards, for example, lowering the age, extending the criteria, or shifting criteria towards allowing mental distress as well as physical to count as a factor in this. And I wonder if that's where we want to Go. I say all that with a very pressing, painful awareness that that does not speak in any way to the condition of people like Mr. Nicklinson. Though, as you have noted, Brenda, his case wouldn't be covered by the proposed law that's just been discussed in Parliament. So I wish I had a simple answer to that, but I'm articulating the questions I want to ask about simply using the language of a right to die, as if that made the question rather. Rather more straightforward than I believe it is. So there's some of the complications I want to explore.
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Dr. Zan Van Tullikin
That's fantastic. And thank you both for kind of setting out. Setting out your position.
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Brenda Hale
I should say that I disagree with almost nothing that Rowan has just said.
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Rowan Williams
We can go home now.
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Dr. Zan Van Tullikin
I think this is why this conversation is so important and why. I mean, I come back to your book, but why the book and the other conversations you've had are so valuable because you're not going at a thing hammer and tongs. And I. The sense I have is that you are both deeply motivated by a concern for human suffering and for human life. And so that. So I suppose. I mean, that brings us to the first question I want to put to you, first of all, Brenda, which is, how should this law be built? How do we design a law with appropriate safeguards to. To say, yes, we can. I think most of us can imagine circumstances where we or someone we care about might want to access medical assistance in dying and might need to. And we could think of it not as suicide, but perhaps as a different form of death that's more reliable, more pleasant, more accompanied. But how do we design a law not to catch people who are under pressure, who should not be accessing that service?
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Brenda Hale
There will be some people who think that by definition, if you are suffering in a way which you find unbearable, you are vulnerable and you are not somebody who is entitled to exercise a free choice. Well, I'm afraid I don't agree with that. I think suffering is a largely subjective condition, but I nevertheless think that if people do find their situation unbearable, they should be free to ask for assistance. I didn't disagree with the. Putting a statutory obligation to provide that assistance is a very separate question. The freedom to ask for it and the freedom to give it if you want to, but not be obliged to. Sort of. One needs to think about the criteria. What should they be? I would definitely include those people with very, very severe disabilities which they find that they cannot live with. And I would include people with very, very severe pain that they feel that they cannot live with. I would not myself include people whose suffering is caused by. By mental illness difference. If there's a sort of mental frailty that is alongside other sorts of suffering, well, that's almost inevitable. But if it's caused by the mental disorder, I would not include that and I would not include young people because in fact we believe that we have an obligation to keep young people alive. We're actually prepared to override their lack of consent to medical treatment, which we're not prepared to do with adults. And so I think not young people. So obviously there are serious and difficult questions about the criteria. Clearly it has to be a free choice, so there have to be ways of assessing whether or not it's a free choice. And so there have to be safeguards which include properly trained people who are able to assess the capacity of the person to make the decision and the capacity of the person to exercise a free choice. What those safeguards are, in almost every country it's two doctors. Sometimes there are requirements as to training and sometimes there aren't. The bill that went before Parliament included an additional safeguard which is a judicial check on what the doctors had done. And there is a case for that because we all know of circumstances where if medical certification is all that's required, then it can quite easily turn into a tick box thing. No disrespect to your profession, Zan, but we know that situation, so an additional objective check might be a good idea. The bill originally had a High Court judge. Well, I'm probably responsible for that because in the Nicklinson case that we talked about, I pointed out that a High Court judge had decided whether a woman who wanted the ventilator turned off was entitled to ask for it to be turned off and she said that it was that she was. So a High Court judge makes those sorts of decisions not infrequently and so that would be a sort of safeguard. But of course there aren't a lot of High Court judges and they're mainly based in London and so that's not very satisfactory internally. So my own view would have been to use the much greater numbers, although they're very hard pressed and very hard worked, of local judges who sit in the Court of Protection or in the family court. So they're used to making these sorts of really serious decisions about people's futures. Most judging is about the past, this is about the future. So that's what I thought. So I wasn't too keen on the way in which the bill dealt with the safeguards. I'm Afraid so. I had this big difficulty about whether I should support the bill because it was an example of a principle which I supported, or whether I thought it didn't go far enough in one direction and went too far in another direction. But there has to be an opportunity for people who object to this decision to be able to do so.
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Dr. Zan Van Tullikin
Can I just ask you a bit more about that mental health exemption? Because I think now in medicine and in life, we do increasingly think of mental illness and physical illness as being very interrelated, if not identical. But the distinction may be a bit old fashioned medically. And why should we treat it differently? Is it just that someone with a mental illness will have the physical capacity to take their own life if they choose, or is there some more nuanced moral distinction that you're making?
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Brenda Hale
I think the moral distinction that I would be making is all based on freedom of choice. And if you have something that affects your mental reasoning and therefore means that your freedom to make a choice is affected by what's in your mind as opposed to what's in your body, I would think that that was a good reason to exclude that. There are other countries that don't exclude that. But. But I think we'd be a bit bothered by that. Of course, you could say that that's the sort of exclusion that will go in due course. And the slippery slope. That's one of the slippery slope arguments.
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Dr. Zan Van Tullikin
Rowan, can I come to you about the issue of resources? Because I think neither one of you is. Clearly we're not talking about a situation where a doctor would be compelled by law to do any of this. But the point I think that you're making, Rowan, is that the state would, you know, that money would have to be found and assigned from taxes and services would have to be established and there would be medical professionals who would be willing, if there weren't any, that would be different. But I think we can reasonably guess that there would be health care professionals willing to assist in this. Tell us about why that's a problem and why how that informs your moral objection.
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Rowan Williams
There'd have to be resources in, as you say, in provision of just practical things, but also in terms of training. As Brenda's noted, the worry is what sort of decision is then pressed on the medical administration. There are already very difficult choices to be made. We know that if at some point it looks as though assisted dying is the least or the less resource hungry option, there's bound to be pressure, and that has been admitted by some people. Matthew Paris wrote a very Pungent and candidate article on that a couple of years ago, saying, well, maybe people ought to be pressurized to die rather than consuming public resources, and made a recognizably ethical case for that, though I radically don't agree with that. But that's going to be around. So that's the kind of concern I have. I want to come back for a moment just to Brenda's point about the role of a legal element in decision making. And I suppose I'd also want to throw in something to do with what kind of resource people will have in making such decisions, drawn not just from law but also from the psychological sciences. Because, as I think you indicated at the outset, sand people's consent will be uneven. It'll come and go. Those who are advising, assessing and so forth will need a very sophisticated grasp of how consent works. And we've become much more sophisticated about ideas of consent in the last decade or so for very good reasons, especially in legislation around sexual coercion, mental coercion of different kinds. And I'd like to have both legal and psychological equipment around to help with that. I didn't see much of that in the legislation that was proposed. That was one of my anxieties.
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Dr. Zan Van Tullikin
Brenda, you've talked about this and you've said, well, and this is not said that you're aligning yourself with Mattie Paris writing on it, but you've said, well, you know, we get pressure. Can you talk about the idea of pressure and how you regard that morally and how that fits into your framework?
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Brenda Hale
Well, I do sometimes wonder, and this may not be a popular thing to say, why we say to ourselves, oh, well, people shouldn't make this decision because they don't want to be a burden. It's quite a moral thing not to want to be a burden, especially on your nearest and dearest. Less so, I think on public services, I think that's okay. But that's just to indicate that people's motivation is going to be quite complicated. And I don't think we should rule people out just because part of their motivation is, I don't want to be a burden. I think that's quite a moral thing to say. I share the concern if this is done as a National Health Service service, the concern that Rowan has put forward, because one can see there's endless pressure on resources and it may be difficult to avoid what's got to be done quite quickly in the current criteria, whereas other things take more time. So I share that. I think there are solutions to it. There are always solutions to problems of this nature, practical problems. But, but I share the concern and therefore solutions ought to be looked for it. I mean, one solution would be to have a service that was set up completely outside the National Health Service and not funded, as of course is the case in the places, a lot of the places where there is assisted dying legislation. It isn't part of a publicly funded health service. And those places tend also to have
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Rowan Williams
good palliative care services about to make exactly that point.
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Brenda Hale
They do go hand in hand sometimes. So it just adds to the complexities of it all, really.
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Mia Sorrenti
Thanks for listening to Intelligence Squared. This episode was produced by Conor Boyle and it was edited by Mark Roberts for ad free episodes and full length recordings. You can become a member@intelligencesquared.com membership and if you'd like to join us at future live events, you can find our full program and buy tickets over@intelligentsquared.com attend. You've been listening to Intelligence Squared. Thanks for joining us.