There has been a lull in the media recently about the rights and wrongs of assisted dying, but the conflict is sure to break out again with the imminent publication of the report from Lord Falconer's commission, established to consider changes to the law.
The commission was set up in the autumn of 2010 and has been subject to repeated accusations of bias in favour of reform. It is true that Lord Falconer is known to be dissatisfied with the law as it stands, as indeed anyone should be. For as things are, assisting in or encouraging suicide remains a criminal offence, indeed a crime tantamount to murder, but the director of public prosecutions has compiled a list of considerations that will make prosecution unlikely (but not impossible) when a person helps another to die at his or her own request.
This cannot be a good state of the law. For one thing, it classes together the actions of someone who broadcasts encouragement to suicide to the world at large with one who agonisingly decides that, out of compassion, when asked to do so, he must help a person he loves to escape from suffering. For another thing, the only people who may not be exempt from prosecution are professionals, doctors or nurses, who are the only people with the knowledge to be sure of success. Nothing could be more terrible than a botched suicide, a terminally ill person determined to die brought back to yet more horrible life. Finally, there is the drawback of uncertainty.
The commission has carried out its work thoroughly and conscientiously. Those who gave evidence were treated courteously and fairly and were given time to expand their arguments, whichever way they tended. Whatever the commission advises, in whatever way it recommends that the present muddle be cleared up, there seems to me to be no reason simply to write off its conclusions. It will not be enough to say of Lord Falconer: "He would say that, wouldn't he?" He was chairman of a group, not all of whom thought the same, and all of whom listened to those who gave evidence, before writing their report.
Society is getting better at facing the fact that many people at present suffer horrible deaths. The commission has reinforced this welcome trend, to think seriously how things can be improved.
We can admit now how deeply we desire a good death, for ourselves, our friends and family; how much we resent the assumption that death must be fended off at all costs, whatever our wishes. Euthanasia in its etymological sense is a widely shared ideal, especially among the increasing number of the aged. The desire to die at a proper time and "peacefully" (as most people feel impelled to say in the deaths column of newspapers. Perhaps they mean that death itself is peaceful, not that dying was so, for all too often it is not) is partly a self-regarding, partly an other-regarding motive. The desire to escape the intolerable humiliations, as well as the pains, of incurable illness usually combines with the desire not to be a burden or a futile expense; this is a perfectly respectable motive, which should not be thought of as the outcome of undue pressure.
The notion that nobody would want death unless they had been persuaded by someone else to want it (or unless they were clinically depressed and could be treated for that) is surely a myth. Some may value life itself, however pointless and pleasureless it is, but others do not.
Palliative care, the control of symptoms when there is no hope of cure, is a marvellous medical development, constantly advancing. But we must not pretend that it will soon be available for everyone, nor that it is always effective. In any case, the atmosphere of loving care, palpable in the best hospices, cannot be easily reproduced in hospitals, where, as we know, terminally ill patients may suffer appalling neglect, both from doctors not much interested in death once it is imminent, and from nurses who have neither time nor specialist training.
The decision whether or not the law should be changed must rest with Parliament; despite the wider acceptance among the general public that such a change would be rational and good, it will be an extremely difficult decision for Parliament to make. If MPs do not or cannot make it, and aiding and abetting suicide remains a form of murder, then the only remedy is to follow the Law Society's long-standing advice and change the law of murder, so that it no longer carries a mandatory life sentence.
The life sentence is a farce anyway, since everyone knows that it means what it says in only a very few cases, of which assisted suicide would certainly not be one. So in the case where a loving husband had brought about the death of his wife, who preferred death to the life she was leading, it would be for the judge to decide what punishment, if any, would be just.
Perhaps, if all judges were of the same mind, precedent would gradually accumulate (and under the present law it has in a way begun to do so, in the absence of prosecutions for assisted suicide) and eventually it would be seen that to continue to treat mercy killing as a crime was futile. But Parliament must decide which way it is right to go. This will be one of the many instances where to legislate is to come to a moral decision, from which there is no escape.