Friday 17 July 2009

Legal limits

Choosing Life, Choosing Death: the Tyranny of Autonomy in Medical Ethics and Law, by Charles Foster (Hart Publishing)

In 2008 Daniel James travelled to Switzerland to kill himself. He had recently been paralysed following a freak rugby accident and had decided he could not cope with a life without movement. In Switzerland, the law allows for a doctor to prescribe fatal doses of barbiturates in order that persons who meet the legal criteria may choose to die. It soon became clear that the reason his family did not stop him, despite their clear devastation at his decision, was their unflinching respect for his autonomy. ‘It was his decision, and we had to allow him to make it,’ his mother remarked shortly afterwards.

Such a commitment to free choice meant that a newly disabled 23-year-old man was assisted in ending his life, even though he was not terminally ill and could have lived a full and happy life. It seems that the family of this young man were torn between allowing his the choice to die on his own terms and forcing him to accepting a life of dependence. In assisting her son to travel to Switzerland, Mrs James chose the former, and although she could have faced charges for aiding and abetting suicide, the Director of Public prosecutions found that there was no public interest in pursuing a conviction. In Daniel James’s case, autonomy ultimately won the day. But is such a devotion to autonomy always preferable when considering questions of medical ethics? Should it be the first and last consideration when making the laws that govern the relationship between a doctor and their patient?

Charles Fosters new book is a legalistic challenge to the assumption that autonomy has the last word in medical ethics and law. It is an account of how the law frequently treats the concept of autonomy as secondary to broader notions of justice and equality. It argues that a hegemonic commitment to autonomy as a guiding principle in medical ethics and law is unsustainable and undesirable. It also illustrates a number of the legal system’s contradictory responses to conflicts regarding autonomy. In fact, this illustration of inherent contradictions in the law makes up the bulk of the text. Because of the short chapter lengths, it reads as a collection of nit-picks, each targeting inconsistencies in various areas where the law has to make decision regarding autonomy. His attack is timely, but technical. As a survey of legal precedent, this book is likely to be found uninspiring by any non-lawyers. In fact, as a student of law I too found it less interesting than I thought I would.

This is undoubtedly because, as Foster notes in the opening chapters of his book, the law does not do philosophy. Law is about practice and does not have the time to develop interesting and philosophically scrupulous perspectives on the issues over which it passes judgement. This is why books that attempt to drag philosophical principles out of the judgements from the House of Lords will inevitably fail, and make for unsatisfying reading while they are at it. The law inevitably scrimps on philosophical method, and through an unflinching focus on the legal perspective on autonomy, Foster’s discussion feels removed from the most interesting areas of the debate.

It is only when Foster’s thesis is bought in line with modern political debate that his argument is interesting and important, because it highlights the tension between an assumption in favour of life and an assumption in favour of personal autonomy. In fact, the political question raised by Foster’s book is neatly summed up by Foster himself:

‘Autonomy…has its limits. There will often be countervailing interests so powerful that they will outweigh autonomy interests. No ones autonomy rights entitle them to be given poison for instance. That is not only because the poison giver’s autonomy is engaged, but also for wider reasons…in the principle of the sanctity of life.’

This claim, that Foster takes to be self evident, in fact raises the more interesting questions on how the law should regulate autonomy rather than how it does. Foster misses a trick by not questioning his own assertions, which seem to accept a political position on autonomy without question: that the law must regulate and limit autonomy in order to serve ‘wider reasons, in the sanctity of life’. Should we, like Foster unquestionably accept this position? Can these ‘wider reasons in the principle of the sanctity of life’ justify the law’s intrusion into autonomy at all? What are the consequences of allowing the hegemony of autonomy in the context of assisted dying?

Firstly, the freedom to choose the manner of your own death brings with it the relegation of survival to a possibility rather than a necessity. When individuals are informed that they will never walk again, or that they have a year to live, we turn any optimistic commitment on their behalf to ‘living a full life’ into a statement of preference for survival. This in turn has two consequences. Most obviously, it adds to the inevitable feeling of burden described by many newly disabled and severely ill people on those around them. If people are offered the choose to live or die, choosing life is bound to feel like the choice that goes in your favour at the expense of your family. Secondly, it forces doctors to offer the chance to die to any patient whom he or she think would fit the criteria. This shifts the role of doctors from those charged with ensuring the continuation of life in all but the direst consequences, to purveyors of comfort charged with ensuring their patients are given the easiest route through their circumstances. This has the potential for catastrophic consequences for any one who believes that life is worth fighting for.

Yet, even after all the pro-human arguments are made, the autonomy question still stands. Is it right that disabled people should be denied the right to kill themselves? Should the state, in any way, be able to dictate the manner of our deaths? This is where the gulf between the law and politics, and the gulf between Charles Foster’s work and the real world opens up. Simply because the law allows for broader principles in its decision-making, does not mean autonomy should be politically surrendered. Simply because we are legally ‘able’ to introduce questions of social justice into debates around assisted dying, does not mean that politically, we should want to. The question of autonomy is thus a considerably bigger challenge for those making political arguments than it is for those making legal ones.

In relation to the debate on assisted dying, where Foster’s legalistic observations raise perhaps the most interesting political questions, he leaves us with a clear but uncomfortable choice. Either we abandon the hegemony of autonomy, or we accept that all people have the right to decide the manner of their own death in spite of the anti-human consequences: neither of which seem particularly desirable.

Recently, the world was shocked when a frustrated driver in China pushed a man from a bridge he was threatening to jump from, because he was holding up traffic. This story was shocking because the actions of the driver ran contrary to our inherent human drive to preserve the life of others. Currently, it is at least arguable that the law expresses this instinct. Those who argue in favour of changing the law to allow assisted dying inevitably place personal autonomy above the assumption that any life involving lived experience, no matter how short or how painful, should be fought for. In this limited sense, I agree with Charles Foster: that priority should not be granted lightly to the principle of autonomy.

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