Activos biológicos

5.6.1 Introduction

The framework for official judgements as to the competence of suicidal PIAs (set out above, 5.2) demonstrates that depressed suicidal purposes, understood as ‘self-oblivious’ suicide, may justifiably be deemed to be incompetent and that an official empowered to interfere may therefore permissibly do so. The justifiability of restrictions upon a suicidal PIA with ‘severe’

depression was assumed, since he is clearly below the high level of self-regard necessary to be judged competent to weigh his generic interests against the continuation of his agency (see as regards mental health and competence generally, Beyleveld and Brownsword 2007, 110).

It is argued that there is no uncontroversial dialectically necessary criterion of self-regard that translates into externally evidenced forms of behaviour in order to provide a foundation for official judgements. The lack of definable criteria justifies restriction of enabled suicide on the basis of the potential for a ‘slippery slope’ towards toleration of depressed suicide, but such a risk does not justify absolute prohibition.

5.6.2 The ‘slippery slope’ and behaviours indicative of depression

The justifiability of restricting the right to enabled suicide, particularly to those who are suffering, forms the basis of a powerful objection to rights-based legal reform. It is argued by opponents of such reform that Pretty and Purdy, as suicidal claimants, are unrepresentative (Keown 2002, 192; 2012, 152ff.) and that most ‘ordinary’ people with conditions of extreme suffering cannot be considered to be self-esteeming agents (eg Huxtable 2007, 18-20; Keown 2002, 87, 109, 131). From that perspective the possibility of rights-based reform is therefore criticised on the basis that it would ultimately accept that incompetent suicide would be permitted, which exceeds its justificatory basis (eg Gorsuch 2004, 1395-6). It is argued that the dialectically necessary framework cannot entirely meet this criticism since it cannot

behaviour necessary to guide official evaluations can be identified and therefore that the English near-absolute prohibition on enabled suicide cannot be entirely justified on the basis that departing from it would result in tolerance of depressed suicide.

An expansive definition of dispositional competence is justified on the above framework.

This definition extends to ‘mild’ as well ‘severe’ depression (see above 5.2.5). It was argued that the definition of ‘mild depression’ could encompass a ‘robust self-reasoner’ standard for the suicidal PIA’s behaviour. In addition to such a standard for dispositional depression, it was argued that occurent depressive behaviour encompassed a standard of rationally considered self-regarding decision-making rather than emotional decision-making, such as one based on a ‘feeling of despair’. These standards are not susceptible to exhaustive definition; the suicidal PIA’s behaviour should indicate that he is capable of valuing his generic interests and taking them into account so as to judge his self-worth ‘fairly’ at his current or predicted level of purpose fulfilment. It is beyond the scope of this thesis to define mild depression further in terms of particular behaviours; it was suggested above that

‘courageous,’ ‘self-reliant,’ ‘temperate’ behaviours indicative of self-assertion would indicate competence, while ‘timid,’ ‘impulsive,’ ‘dependent’ behaviours are indicative of ‘self-passivity’.

The relevant behaviours of self-assertion and self-passivity do little to illuminate what is being measured and how it could be measured. The lack of definite content to such measurements may be contrasted with the measurements of ‘extreme suffering’ which are susceptible to evidence by medical assessment (see above 5.4.6). The measurement of

‘depressed’ reasoning behaviour is, rather, determined by conventional ideas of the behaviour of ‘ordinary’ persons (albeit subject to a criterion of self-regard that is derived from the PGC). Furthermore, the measured behaviour lacks an obvious ‘expert’ associated with it, especially in the context of a suicidal desire; a psychological analysis would undoubtedly be of benefit for the measurement of such behaviours but the expert’s analysis cannot provide the certainty that a medical oncologist could as regards certain conditions of ‘extreme suffering’.

To illustrate the relevant standard it is useful to refer to a case of enabled suicide in a country that has legalised it. An extremely controversial recent case from Belgium concerned the

euthanasia of Nathan Verhelst, a transsexual man who sought euthanasia shortly after transitioning (Bioedge 2013). He desired suicide due to the unbearable emotional suffering brought about by, in his terms, a life-time of neglect, gender identity dysphoria and the destruction of his hopes for a ‘cure’ by his failed transitioning (Telegraph 2013). The basis for his enabled suicide was ‘emotional suffering’ (in Belgian law) and before he died the emotional basis of his decision became evident in an interview in which he conveyed the emotional devastation that he experienced when the operation not only failed but, in his view, turned him into a ‘monster’ (Huffington Post 2013). The case appears, at face value, to be one which is clearly contrary to the notion of competence under the dialectically necessary framework above, since Verhelst’s behaviour straightforwardly contradicts conventional notions of a self-esteeming agent, and instead conforms to the familiar conception of suicide as an act born of self-hatred. It is certainly far from clear that Nathan’s suicidal purpose was born out of self-esteem, as Purdy’s was, but a closer examination reveals subtle factors both against and in favour of finding Nathan to have been competent as a self-regarding agent.

A hypothetical judgement on Nathan’s case requires an assessment of his competence to advance his transsexualism and failed transition as a condition of ‘extreme suffering’ and a reason to end his agency (accepting for the sake of argument that such a condition can amount to ‘extreme suffering’). A precise account of Nathan’s behaviour is not possible and is unnecessary, but it is clear that there are a number of problematic factors in terms of his competence. His transsexualism exposed him to emotional abuse from his family and society that is associated with low self-esteem and severe depression. Statements that he made to the media before his suicide confirm the emotional abuse he faced from his family and from society for his condition (Huffington Post 2013). Finally, his gender dysphoria and the immediate reason for his suicidal purpose, his failed transition, would indicate that he would find it difficult to weigh his gender dysphoria fairly against his other generic interests.

Against these factors, there are some indicators in favour of Nathan’s competence. Nathan’s long struggle with his condition and his attempts to address it with surgery arguably evidence his prior determination to value his agency. Similarly, his suicidal desire stemmed from a failed attempt to live on his terms by seeking surgery, which is not the action of a self-disregarding agent. Finally, Dr Distelmans, who administered the lethal injection, confirmed

The competence factors relevant to an evaluation of Nathan’s enabled suicide present a clash between notions of self-esteem as emotional dispositional/occurent competence, and the contrasting characterisation of self-esteem evinced by an agent struggling to value his purposes and overcome his condition. Nathan’s experience of emotional abuse would mean that an official could justify a finding that Nathan did not value his agency to others, but Nathan’s struggle equally indicated that his life is characterised by self-assertion to an extent, since he had valued his purposes sufficiently to take actions which could have enabled him to value his life on his terms. Ultimately, neither emotional nor agent-based indicators of self-esteem should be viewed as decisive, and a final judgement cannot be given at a distance on the basis of such conditions. The behaviours of self-assertion and self-passivity merely contextualise an individual assessment of Nathan by an official judging him as an agent on the basis of his current suicidal purpose. It is argued below that reform based on such an assessment, while ‘slippery’, is necessarily achievable by agents and is within the UK government’s capacity and responsibility, but that the administrative burden of doing so must be taken into account in terms of finding a violation of the generic right to enabled suicide of hypothetical claimants.

5.6.3 A proximity-based assessment based on Pretty v UK

The ‘slippery slope’ argument is correct in so far as behaviours indicative of depression are both crucial to the justifiability of restrictions upon enabled suicide and are not susceptible to an exact definition. Nevertheless, the claim that a near-absolute prohibition that is certain to frustrate the freedom of at least some suicidal PIAs is also not defensible. It is submitted that a sufficient basis for the competence assessment is provided by the seminal Pretty case in which the courts found the applicant to be competent (see chapter 3). By this it is not, of course, meant that all applicants must meet her standard of determination and pursue their case for suicide through the stages of national and international courts, but that the basis for that judicial assessment of competence, in terms of proximity between the judges and Pretty as agents, was key to their assessment. The relevant degree of engagement between an official and a suicidal PIA (S) requires each as individual agents to learn to understand the other and thus for S to engage with O’s (the official’s) self-reasoning in order to learn how to communicate to O the necessary quality of his self-regard. It is therefore argued that

safeguards against allowing depressed enabled suicide are ‘proximity-based’ and it is justifiable to require direct proximity between a judging agent and a suicidal PIA. As discussed above, such direct proximity is, however, both administratively burdensome and individually burdensome to individuals (see 5.2.3).

It is argued that a limited analogy may be drawn between an official’s judgement of a suicidal PIA’s self-regarding purpose and a jury trial in a murder case seeking to establish the intention of the defendant. In such a trial the jury can hear expert witnesses who seek to demonstrate the quality of the defendant’s intent beyond reasonable doubt, and judicial framing of jury directions can isolate the crucial behaviour evidencing intent that they should judge. However, it is fundamentally their capacity as agents to understand the ‘intending’

behaviour of the defendant that must be appealed to in terms of their competence to decide his guilt. Their reasonable attempt (assuming that they not responding in a purely emotional fashion) to engage with the defendant’s purpose, as agents, knowing that their judgement condemns him, as an agent, to the basic harm of loss of liberty (and life in certain states in the US), grants them such competence. To apply this analogy to O judging S – she can hear expert evidence, the ‘testimony’ of S and those close to him, and frame the question to herself as to the status of S’s self-regard. However, she must rely on her ability as an agent if she is to judge a fellow agent’s purpose, knowing that her assessment leads to effectuating the choice between his possibly incompetent suicide or the continuance of a life whose value he has potentially rejected.

5.6.4 Conclusion

The lack of uncontroversial generic criteria to frame safeguards against depressed suicide provides a foundation for the justifiability of legal rules requiring official interference with all the hypothetical claims to the generic right to enabled suicide, regardless of the form which the exercise of the right takes (“take my life” etc in 1.3.3; see also above 5.4.2). It is therefore argued that even an exceptional procedure would not be immune to reproach, and, indeed, that an officious or distant legal response, if that was the result of legalisation, would ultimately fail to value agency. It is therefore argued that the sanctity of life-based ‘slippery

be possible (see also 5.5.2). It is submitted that the UK government can justifiably argue on this basis that it does not violate the generic rights of all categories of claimant who currently cannot receive enabled suicide under English law due to the lack of a generally applicable legal framework designed to determine their competence.

However, it does not follow that it is the case that a blanket prohibition is necessarily defensible. The provision of at least an exceptional judicial procedure by which officials can directly assess signalling in order to minimise the risks of depressed and pressured signalling is clearly not beyond the UK’s minimal responsibility under the generic right to enabled suicide (see above 5.5). This is a key aspect of the argument in the next chapter as regards English law in which the creation of such an exceptional procedure was advocated by certain of the Supreme Court Justices in Nicklinson.⁴²

5.7 Conclusions

The PGC requires that the proportionality of English law on assisted suicide and voluntary euthanasia must be judged in terms that are defensible in terms of agent-rights, as established in the previous chapter. It has been demonstrated that the findings of the ECtHR in Pretty as to the proportionality of English restrictions on assisted suicide,⁴³ interpreted in accordance with the above framework, possess a definable minimum content. In terms of the hypothetical claimants, the UK government can advert to the necessity of safeguards on certain bases, related to forms of signalling, enabling actions and possibility of pressure but, as regards all claims, it can be justifiably argued that safeguards are necessary to minimise the risk of depressed suicide. The application of the above framework to English law has revealed some striking inconsistencies when various voluntary life-ending phenomena are defined as enabled suicide, especially as regards refusal of vital treatment. The basis for such inconsistencies, in terms of disputed distinctions and the sanctity of life are discussed in the subsequent chapters. The framework in this chapter provides the basis for evaluating the resulting inconsistencies created by such rules. It will be argued that English law is indirect and evasive, and thus breaches the principles of a good faith, sincere and committed attempt

42R (Nicklinson) v Ministry of Justice [2014] 3 WLR 200 [314].

43Pretty v UK (2002) 35 EHRR 1 para 74.

to apply the PGC in many respects. This evaluation will provide the basis for considering forms of minimal and more extensive legal reform in chapters 9 and 10.