Understanding Dignity: A Fundamental Concept in the Assisted Dying Debate

Background

Dignity is a concept that is intrinsically linked to the assisted dying debate, yet it is considered a murky notion that lacks the clarity to bring anything meaningful to bioethical discourse. This project had three parts. First, to provide an overview of end of life law in the UK. Second, to explore the variety philosophical concepts of dignity and settle on a definition. Third, to apply my defined concept of dignity to the end of life debate.

Part 1

I started my examination of the legal landscape in the United Kingdom (UK) at the end of life with a comparison between the cases of R v Cox[1] and Airedale NHS Trust v Bland.[2] This provided the perfect springboard for the debate, as it highlights the critical difference between act and omission that UK law has long relied upon. The withdrawal of life sustaining treatments is seen as an omission at law. Therefore, it is not an act that hastens death and is not akin to euthanasia. These cases, in combination with the Suicide Act 1961 provide the basis for the UK’s legal principles at the end of life. These are as follows: Assisted dying, be that active euthanasia or assisted suicide is illegal. Whereas passive euthanasia, such as the withdrawal of life sustaining treatments is legal.

With this foundation laid, I move on to discuss the cases that have challenged the UK’s current stance. Starting with the cases of Pretty[3] and Purdy[4]. The former leading to the European Court of Human Rights recognising that the UK’s current law breached Ms Pretty’s right to self-determination under Article 8 of the Human Rights Act 1998. However, this right was sacrificed in order to protect the wider population. Ms Purdy’s case lead to the publishing of a policy that brought clarity to prosecution of offenses under the law surrounding assisted suicide.

Finally, I explored the arguments in the case of Nicklinson.[5] Despite this case being unsuccessful, in their judgments the majority supreme court justices appeared to sympathise with the claim that existing law was incompatible with Article 8 of the Human Rights Act 1998. Further to which, it is argued that their statements suggest that Parliament must satisfactorily address this issue. Commentators, such as Hobson argued that in this context, these statements were tantamount to a change to law.[6] The Assisted Dying Bills that followed did not pass. Later, when Noel Conway challenged, many predicted that the declaration of incompatibly would arrive. Ultimately, this did not come to fruition.

Part 2

Macklin argues that without any meaningful definition it is a useless concept that can be removed from bioethical discourse without loss of content.[7] In order to salvage dignity I look to historical uses of the term, before looking to more recent discussion.

This began with an exploration of Immanuel Kant’s use of dignity. Kant saw dignity as the intrinsic value that all human beings possess due to their capacity for autonomous action.[8] However, he failed to appreciate that not all human beings have a capacity for autonomous action, such as those in a coma, yet we still see them as having dignity that can be affronted. Therefore, I abandoned the Kantian approach for a modernistic account by Neal.[9]

Neal sees universal vulnerability as the organising idea of dignity. The value of dignity is its positive valuation of the things that make all humans vulnerable to harms. I failed to find flaw’s in Neal’s claims, but felt her account lacked the clarity to be a useful concept. I decided to combine her account, with its basis of vulnerability with Foster’s Aristotelian account of dignity. Foster’s account sees dignity as a way of “being”, which I argue can be seen as “being vulnerable” as all humans are. This model for application of dignity uses a consequentialist transaction in which all stakeholders in a decision have their dignity accounted for.  Ultimately, the transaction aims to protect dignity by promoting the views of the most vulnerable and maximising the thriving of stakeholders as a whole.

Part 3

Next, I needed to perform an audit of the dignity interests of all stakeholders. I considered three stakeholders; the patient, ‘at risk’ groups and doctors.

In the case of the patient, whom I considered to be the most vulnerable group, I concluded that only in a very specific set of circumstances would an assisted death promote dignity. These are that the patient is in a state of such permanent ill-health that they lack the capacity to thrive and are only moving away from thriving and towards greater vulnerability. Only in these circumstances will assisted dying protect the dignity of patients.

Next, we consider ‘at risk’ groups such as the old, disabled and psychologically distressed. It can be argued that individuals belonging to these groups will be considered as lacking in the capacity to thrive at all times. I found this issue difficult to overcome and brought to light the need to individualise thriving which makes my model of dignity less useful as a general concept.

When considering the dignity of the doctor, I considered a thriving doctor to be one who practices within on the goals of medicine and professional integrity. Many argue that preservation of life is the most critical goal of medicine. However, in response I argue that once a patient is recognised as dying, this is no longer the critical goal and is replaced by a focus on comfort. Therefore, a doctor who aids a patient with a terminal illness and a voluntary request for an assisted death does not contradict the doctors thriving.

Conclusion

From my three sections I arrive at three conclusions. One, a hidden majority of supreme court justices see current law as incompatible with human rights. Two, the murky notion of dignity can find footing in intrinsic human vulnerability. Three, auditing the dignity of all stakeholders I arrive with a result in support of assisted dying for terminally ill individuals who lack the capacity to thrive.

[1] [1992] 12 BMLR 38.

[1] [1993] AC 789 (HL).

[1] R (Pretty) v Director of Public Prosecutions [2001] EWHC Admin 788.

[1] R (Purdy) v Director of Public Prosecutions [2008] EWHC 2565 (Admin), [2009] HRLR 7.

[1] R (Nicklinson) v Ministry of Justice; R (AM) v Director of Public Prosecutions [2014] UKSC 38, [2015] AC 657.

[1] Clark Hobson, ‘Is it now institutionally appropriate for the courts to consider whether he assisted dying ban is human rights compatible? Conway v Secretary of state for Justice.’ (2017) Medical Law Review accessed 8 April 2018.

[1] Ruth Macklin, ‘Dignity is a useless concept.’ (2003) 327 British Medical Journal 1419.

[1] Immanuel Kant, Groundwork for the metaphysics of morals (JW Ellington trans, 2nd ed, Hackett, 1994) 40.

[1] Mary Neal ‘”Not gods but animals”: Human dignity and vulnerable subjecthood’ (2012) 33 Liverpool Law Rev 177.