Proponents of assisted suicide have been very keen on the concept of autonomy. Kim Leadbeater MP said that her Bill “would give dying people, under stringent criteria, choice, autonomy and dignity at the end of their lives.” She added that she struggled “to see how it is fair or just to deny anyone the autonomy, dignity and personal choice of taking control of their final weeks.”
Alicia Kearns MP said that the only limit to autonomy is the protection of harm to others. She said that it is not the role of legislation to impose “moral convictions” and that it is wrong for those who have religious objections to seek to deny that choice to others.
The legal philosopher Heidi Hurd described consent as a kind of moral magic which “turns a trespass into a dinner party; a battery into a handshake; a theft into a gift; an invasion of privacy into an intimate moment.”
But in reality very few people believe that the only limit to autonomy is “harm to others who do not consent to that harm”.
The laws of all legal systems in the world recognise that this moral magic of consent has limits. English law is not unique in stating that consent is not generally an excuse to the intentional infliction of serious harm or death.
The seminal case restating this rule is the infamous R v Brown decision where it was held that there was no exception to this rule for sadomasochism: the consensual infliction of actual bodily harm for the sake of sexual gratification is a crime. Whilst that judgment has proved controversial amongst academics, and indeed law students, it was recently codified by Parliament. Indeed, in a recent Westminster Hall debate Alicia Kearns MP proudly boasted that the Conservatives had “ended the rough sex defence”.
When I taught criminal law, I gave my students another case to read together with R v Brown. In R v Lee a woman died during a consensual exorcism. The Pastor was charged with manslaughter (it was common ground that he had not intended to kill her) and the question of whether her consent would provide a defence arose. The Supreme Court of New Zealand departed from R v Brown (which most of my students thought was wrongly decided) and held that consent was indeed a defence. The Pastor was therefore acquitted.
My students were troubled by this case, but they recognised the inconsistency: how could they think R v Brown was wrong without approving of the result in R v Lee?
Consider another issue, conversion therapy. The previous government set out its position that conversion therapy practices that cause serious harm should be illegal under the R v Brown doctrine even if there is consent. But it also stated that if such practices do not cause serious harm then consensual conversion therapy should not be a crime. Alicia Kearns objected to those proposals saying she remained “unconvinced that anyone can consent to such an abusive practice”.
In explaining her position Kearns referenced the common law rule that one cannot consent to actual bodily harm. Her position appears to be that all forms of conversion therapy, including mere talking therapies, amount to actual bodily harm.
Both my students and Alicia Kearns – and I would suggest the vast majority of people – do not actually believe that the moral magic of consent is unlimited. They think that autonomy does have its limits and that not everything can be freely consented to. Almost everyone believes that there are moral principles which act as a limit to autonomy and that it is proper for the law to give effect to those principles.
For many people a relevant moral principle is the sanctity of life. As one of our greatest judges, Lord Hoffmann put it “the sanctity of life entails its inviolability by an outsider. Subject to exceptions like self-defence, human life is inviolate even if the person in question has consented to its violation. That is why although suicide is not a crime, assisting someone to commit suicide is”.
The Leadbeater Bill does not give full effect to autonomy. It does not provide for euthanasia, nor does it provide for assisted suicide on demand or indeed not even for those with unbearable suffering. There are two possible explanations for these limitations. Either they reflect a balancing act between the moral principle of autonomy and another moral principle which does limit autonomy. Or they do not actually believe in a limiting moral principle but instead the limitations reflect a realpolitik calculation: that they do not have the votes to go further even though that would be their preference.
Which it is matters for the slippery slope argument. If no limiting principle to autonomy is invoked by proponents of the legislation, then the logical implications of that principle will necessarily be wider than the legislation provides. This makes future widening of the legislation more likely. If there is no limit to autonomy why should the restrictions that the Bill puts in place remain in place. This means that whenever the political climate changes there would be no principled basis to oppose going further, which in turn would make an extension more likely.
There is a second danger in that regard, and that is the courts. Much has been made about courts giving a wide discretion to legislatures in this area – the margin of appreciation – but that discretion is dependent of proponents of the Bill asserting an objective (as opposed to political) justification for the differences of treatment made. If when faced with an inevitable discrimination challenge on the basis that some are not eligible all the government can assert by way of justification is that it was thought for political reasons that a wider Bill would not be supported, then the defence will fail and the courts will hold that it is discriminatory not to have a wider Bill.
If proponents of the Bill are therefore serious about avoiding the slippery slope they should articulate a principled reason not to go further: in other words what is the moral principle which trumps autonomy in all cases except assisted suicide for terminally ill adults? If this principle is the sanctity of life they need to explain why they think that for the terminally ill who are physically able to end their own life with assistance, autonomy trumps the sanctity of life but why it does not for other groups: those who are terminally ill but are physically unable to end their own lives (as euthanasia is prohibited), those who are suffering unbearably (as they are excluded from the scope of the legislation) and those who are healthy but tired of life (as the Bill does not fully decriminalise assisted suicide as the Swiss law does).
However, their unwillingness to even acknowledge that there are legitimate limitations to the autonomy principle and their casual dismissal of those who do raise such principles (‘religious people who impose their views on others’) makes one wonder whether realpolitik is the real explanation behind the limitations of the Bill. In which case, those who are worried about the slippery slope are right to be worried.