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RNZ: Lord Alex Carlile: Why he supports NZ lawyers against the End of Life Choice Bill – with Jim Mora

Jim Mora interviews the UK’s Lord Carlile of Berriew QC. He has been involved in parliamentary activity in the UK for several years now, opposing euthanasia bills that have been presented, due to concerns over various safeguards. He explains why he opposes New Zealand's End of Life Choice Bill from a "secular, ethical dimension".

Jim Mora: David Seymour’s euthanasia bill may get its Second Reading this coming week and we have two contrasting voices on that this morning. The End of Life Choice Bill seems likely to have its scope reduced possibly with an insistence by MPs on euthanasia being restricted to the terminally ill, at least in its first incarnation when it becomes law, and possibly with the whole question being put to a public referendum. There is still a lot to be decided. Two voices on that.

Jim Mora (cont.): Lord Alex Carlile has joined the fray on this and then we'll talk to Matt Vickers. Lord Carlile of Berriew, CBE, QC and honorary member of the Lawyers for Vulnerable New Zealanders who’ve been vociferous on the matter of assisted dying. Alex Carlile sits on the House of Lords, and is a prominent campaigner on social issues, including penal reform. He sat on the UK select committee on the 2004 Assisted Dying for the Terminally Ill Bill which was defeated and since then more recent bills have failed in the UK Parliament – the last one I think in 2015.  New Zealand’s End of Life Choice Bill would make it lawful for medical professionals overseen by the Ministry of Health to end the lives of their patients through lethal injection upon request or to assist them in committing suicide by ingestion or intravenous delivery of lethal medication.

Lord Alex Carlile, good morning.

Lord Alex Carlile: Good morning to you.

Jim Mora: What made you throw your support behind the Lawyers for Vulnerable New Zealanders to have the End of Life Choice Bill quashed?

Lord Alex Carlile: Well I’ve been involved in Parliamentary activity in the UK for several years now opposing various bills that have been presented to Parliament. The last one was defeated by over 200 votes in the House of Commons. I have been very concerned about the lack of safeguards in any bill that has been produced. But I emphasise that I do not come at this from a religious dimension. I'm not a religious person. I come at it from a secular, ethical dimension, and as a lawyer who is concerned about protecting the vulnerable.  

Jim Mora: OK. This Bill of course has safeguards, its proponents claim, and amendment suggestions have been proposed like making the decision come from a court in individual cases not from doctors. So is there any shape or form in which this New Zealand bill could be made acceptable to you?

Lord Alex Carlile: Not in my view. I was very surprised to see that it was being proposed that the matter should be put in the Family Courts. I understand that at present the New Zealand Family Court is under review by an independent panel led by Rosslyn Noonan which has in its first report identified some systematic weaknesses in the Family Court. But even if those weaknesses had already been ironed out, I would say that the procedure that's being offered is grossly unsatisfactory. It's being done in basically a secret court in which public accountability is not available. A huge amount of responsibility is being placed on single lawyers and indeed single doctors, and I do not regard that as a safeguard.

Lord Alex Carlile (cont):  Indeed I am very concerned about the role of the medical profession in this. In New Zealand's proposals, whichever set you take, as in the UK, basically there would be a self-selecting group of what I call thanatologists, who would be the people who would be taking part in this because it was something they supported. But they would be people who had made a decision that they were prepared to put other human beings to death as part of their medical activity. Now I have regard that as a breach of the oath that, some doctors at least in some universities still take. And I do not believe that doctors should deliberately be taking life – it’s very different, from what is usually called the “doctrine of double effect”, in which therapeutic treatment that reduces pain may also hasten death – the primary motive is therapeutic, not to cause death. And I’m particularly concerned about the definition of “terminal illness”.

Jim Mora: Yes, the larger implications are what I really want to talk about – and probably you too. Let's acknowledge that people should have agency over their lives, although none of us has complete agency. What is wrong with people wanting to choose the manner of their exit from the life of the planet. Because one of the placards held up at a march here simply read, “A peaceful death is everybody's right”.  

Lord Alex Carlile: Well, in the United Kingdom, suicide is not anymore a crime, and I believe that that’s correct. People are entitled – permitted – to commit suicide. And I don’t oppose that in any way. If people, really, having thought about it, commit suicide, that is their decision. What I oppose is using the agency of a third party to kill them when the only purpose of that activity is to bring about a person’s death. And I have not seen any proposal, in any country, that ensures that the third party who performs the act that causes the death, or assisting the act that causes the death, may not be coloured in their decision, by either an overarching belief or by failing to assess the true state of mind of the person concerned. In Oregon, for example, there is evidence that people are choosing to die in this way because they don’t want to cause further cost of care to their family. I can see that happening if the same was permitted in the United Kingdom where the health care costs of older people are becoming a serious issue. I also believe, certainly in our country, and I believe the situation should be the same in New Zealand, that the quality of palliative care is such that actually a peaceful death is available to everybody.

Jim Mora: OK. And there are people who disagree with that and say, “That’s all very well in kind of middle class circumstances but it doesn’t apply across the board.” Just to stay a while in Oregon, when Measure 16, Oregon’s law permitting asisted suicide, went through the state’s medicaid director announced it would be paid for as “comfort care” and then people noticed that the state of Oregon was planning to cut back on health care coverage for the poor. And they joined the dots and they said euthanasia would become just too tempting for balancing the books. But we have societies, don’t we Lord Carlile, that would rebel against this wholesale? Can you honestly see us becoming like the boiled frog, not aware of the terrible peril until it’s imminent?

Lord Alex Carlile: I’m not sure that I can adopt the metaphor that you’ve given me, though it’s a very colourful one. But I think there is a real danger that countries that adopt the kind of measures that are being suggested in New Zealand would become the places where people went to die. What happened in the UK is actually very important. There were a number of bills that went to the House of Lords. House of Lords is not elected.  There was more of an appetite in the House of Lords to consider the matter further. But when it went to the House of Commons, when elected representatives were faced with this issue and talked to their constituents, and particularly met disability groups from their constituencies, the majority against it was huge.

Jim Mora: There’s been similar resistance here from disability and all sorts of groups. But here the Greens, for example, support the present bill to the extent that its application will be confined to the terminally ill.  And a lot of people on the other hand find that reasonable.. Terminally ill.

Lord Alex Carlile: The definition that has been provided for the terminally ill is not a robust definition. I mean, there is plenty of material that shows that people who have been held to be “terminally ill” have survived for a very long time. What is a terminal illness? It’s provided in the supplementary order paper, which I’m looking at at the moment, as part of the provision, that all reasonable treatment options to “cure” the terminal illness have been exhausted. Well, many of us suffer from long-term illnesses that cannot be cured – “cure” means removed – but which can be palliated on a long term basis and give people a very good quality of life. My own mother who died age 98¾, had chronic heart disease for about 10 years. She took medication for her chronic heart disease; she was busy; she was intelligent; she was energetic; she travelled – but she wasn’t cured.  

Jim Mora: No, but nor would she probably have sought an ending of her life. Yeah?

Lord Alex Carlile: Well, she talked about it at various times, as very old people sometimes do. She used to say, “I’m costing you too much money because you’re looking after me”, and things like that. She said to me once, “I never thought my life would end like this”. And I said to her, “Well I’m sure, you didn’t think you would live so long, but you’re giving us all an enormous amount of pleasure.” Behind all this is a sort of doom-laded pessimism about the quality of the life of those who are sick and disabled. Many sick and disabled people have great and interesting lives.  

Jim Mora: What sections – because you talk about the vulnerable people, and that’s at the heart of it – what sections of society do you believe would be most at risk in New Zealand if the bill were ratified?

Lord Alex Carlile: Very lonely, elderly people; elderly people with chronic illnesses; people who can’t understand or imagine how they are going to be helped by treatments such as chemotherapy or [immunotherapy]; people who have serious disabilities and who need a lot of help to go about their everyday lives – those are examples. But the group that worries me, I think most of all actually, is people who suffer from what seem, and are, very serious mental illnesses – but who are often able to lead normal lives, or nearly normal lives,  after they’ve have good quality medication and also therapy of other kinds.

Jim Mora: We hear about the Netherlands and Belgium and the state of Oregon, and there have been publicised examples of what seem like unnecessary suicides, the ones you talk about. But euthanasia supporters do point out that the percentage of assisted dyings has stayed very small. So don’t you have to postulate that it won’t stay small, that the floodgates will open, pressure will be put on the very old and those unable to cope, to have their lives eradicated? What makes you think that would happen?

Lord Alex Carlile: Well, first of all I don’t accept the premise of your question. I don’t think I do have to postulate there will be a dramatic increase. I’m absolutely certain that there would be some increase.

Jim Mora: OK. So any increase is a bad increase in your view. But what people really worry about, I think, is the dystopian predictions of science fiction – a world struggling to provide medical and aged care services which become ever more expensive, trying to cope with burgeoning population levels, history is of no use really because the world didn’t used to be as full of people. We just don’t know whether the safeguards would stay rigorous or not. Is that your main concern?

Lord Alex Carlile: Well it's one of my concerns. I mean, the fact is, that in every country so far as I'm aware, certainly in my country and yours, the population is growing, particularly among the elderly. And you know those of us like me, who are now over 70, hope to live to the sort of age that I mentioned earlier that my mother lived, 98 ½ – and we therefore prevent multiple co-morbid problems for our care in the future. I do take this somewhat dystopian view of the effect it might have if this kind of law was in place. I do genuinely fear that it would be a standard and easy option to say at a certain stage to one’s mother, father or one’s self, “Well you know, don't you think it's time now? You've had a great life, now it's time to go.” That could easily become the sort of “new normal”. And let's not please suggest to me that that is a ridiculously pessimistic view. We have seen some appalling societal behaviour, even over the last hundred years in various parts of the world, you know for example the Holocaust, where it was deemed by one of the most civilised nations on earth, to be fine to just put people straight in the gasoven once they came off a train. human nature can play all sorts of self-deluding tricks and I'm concerned that this proposal could lead to that kind of situation – not in New Zealand now, of course not, but on a much wider basis maybe in 100 years’ time.

Jim Mora: Speaking of human nature, and you’ve alluded to the doctrine of ‘double effect’, this is an area of general hypocrisy – I don't mean that disdainfully – in that we know many people are euthanised by doctors who know their families well. They're just quietly given drugs to let them slip them away, “Don't ask, don't tell outside the family”. So any moral argument against has to acknowledge that reality, doesn't it? It's actually happening regularly, but it’s not called euthanasia.

Lord Alex Carlile: Well I don’t know what your evidence is actually for that proposition, because I believe it happens extremely rarely. And why does it happen extremely rarely? Because it's wholly unnecessary. Anyone who has been close to any family member or friend who has died as a result of a very serious illness and has had, for example, morphine syringe driver administered, knows that the two effects of the morphine syringe driver are, 1) to reduce pain – and that's the primary aim, but 2) an effect is that it may speed up the moment or hasten the moment of their death. Now I don't accept for one moment that there's any hypocrisy in that. It's a therapeutic treatment, with a therapeutic motive, which happens to have a result which one would not wish to have, but which is preferable from them suffering severe pain.

Jim Mora: The thing is that proponents of euthanasia would sieze on that definition you've just given of the doctrine of double effect and say it pertains to people who are just in miserable circumstances and don't want their lives prolonged, so it seems near the twain meet in this sort of area.

Lord Alex Carlile: Oh, I agree with that. I think this has become a very heated debate, much more heated than I would have wished. It seems to me that what should have been a debate conducted at a philosophical level, has been conducted at a very charged rhetorical level and I regret that.

Jim Mora: At the end of the day, you say you're not opposed to people deciding to take their own life and leave this world. In the most benign view of this Bill, and I'm sure this is the honest intent in the minds of many people, all it does is let them make that decision for themselves, and smooth their path in a way that may not be smooth if they attempt their own life in a far clumsier setting. What is wrong with that?

Lord Alex Carlile: Because, as I said earlier, one of the fundamentals of human ethical behaviour, is that we do not deliberately take the life of others, except in extreme circumstances such as war, and that requires a largely international legal panel to justify. I do not believe that we should be moving that red line to allow third-parties to end our lives with that sole intention, namely of ending our lives. I think it's a step too far, and I regard it in legal and philosophical terms to be unethical.

Jim Mora: But that does consign the fate of people who do want to end their own lives towards doing it themselves in a possibly far less humane manner, doesn't it?

Lord Alex Carlile: It certainly means that people would be consigned to doing it themselves. I mean, I would encourage every single one of them to think again, but of course we know that a lot of people do commit suicide. I'm not sure about the humaneness or otherwise of self-suicide or being killed by another person. I don't really feel competent to answer that question, and indeed it doesn't go to the fundamental philosophical and ethical premise that I'm offering.

Jim Mora: Out of interest what have been the major forces at play in the recent experiences in the United Kingdom that have seen euthanasia assisted suicide legislation defeated? What have been the main discussion areas that have shouted that down?

Lord Alex Carlile: Well, there have been religious arguments. Although Britain often appears to not be a very religious country, on issues like this, people's residual religious beliefs come to the fore, and all the established faiths are opposed, with exceptions among their memberships, are opposed to assisted dying. Then as I said, MPs were faced by the constituents made their opinions clear to them. I doubt if there was an MP who didn't try to go out to find out what the constituents thought on these issues. I'm sure that some of the MPs who voted against assisted suicide otherwise might have voted in its favour. So there’s public opinion in a broader sense and religion. And then there are the views of, I would suggest, the majority of doctors – that’s certainly well-documented – and I would also suggest the majority of lawyers and the judiciary who would be opposed to this on an empirical basis.

Jim Mora: Good to talk to you and thank you for your interest in what we're doing in New Zealand, and thank you for the interview, Lord Alex Carlile.

Lord Alex Carlile: Thank you for calling.

Jim Mora: It’s a pleasure.


Visit the Laywers for Vulnerable New Zealanders Website at www.lvnz.org

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