Why the 6 month “safeguard” is too limiting

Countries, such as Switzerland, The Netherlands, Belgium and more recently Canada, have right-to-die legislation that does not limit the right to an assisted death to those with a prognosis of less than six months to live. The longest standing case is that of Switzerland where it has been working satisfactorily since 1942. In the USA, the states such as Oregon which have right-to-die legislation only permit an assisted death for those who are “terminally ill”, meaning that two doctors have given a life expectancy prognosis of six months or less. In the UK an assisted dying Bill, modelled on the Oregon legislation, which included the six month criterion as one of its “safeguards” was debated in the House of Commons in September 2015 and decisively rejected.

Many right-to-die supporters and opponents see the following serious problems with the 6-month criterion:

  • Doctors argue that they cannot reliably give a sufficiently accurate prognosis of life expectancy in all cases. This was a significant argument against the Rob Marris Bill which was rejected by the House of Commons in September 2015. The position was clearly stated by Dr Katherine Sleeman (Clinical Lecturer in Palliative care) when she said “… as a doctor I know that it is pretty much impossible to determine prognosis with any degree of accuracy…”, in her well argued case against changing the law, during a public debate in January 2016.
    The issue of it not being possible to give accurate life expectancy estimates led doctors in Scotland to get this criterion removed from the definition of “terminal illness” in certain benefits. A report recommending a similar change in England and Wales was published by the All Party Parliamentary Group (APPG) on Terminal Illness in 2019. Evidence presented in a legal case in Northern Ireland showed that 14% of those who were granted payments because they were expected to die within six months, were still alive three years later.
  • Many high profile cases of people who wanted to have an assisted death would not be helped by legislation limiting this to those within 6 months of dying, such as people with multiple systems atrophy (Omid), locked in syndrome (Tony Nicklinson), MS (Debbie Purdy) and incurable pain (Paul Lamb). The discrimination against people with these conditions is the subject of a BMJ opinion piece written by two medical professionals who are on opposite sides of the right to die debate. They agree on this, and some other important points.
  • Many other situations which fall outside the 6 month criterion cause prolonged suffering which some people would like to opt out of by requesting a medically assisted death. A particular worry for many people is dementia – a terminal illness which can last between 8 and 10 years from when symptoms first begin until death. One of the recommendations of a 2012 study by the Alzheimer’s Society is  “There should be greater recognition of dementia as a terminal illness”¹. The National Council for Palliative Care echo this, pointing out that: “Despite there being no cure, only 18% of people realise dementia is a terminal illness.” Cruelly, by the time a dementia sufferer might get a 6 month life expectancy prognosis, they are very unlikely to have the necessary mental capacity to request, and be accepted for, assisted dying. Dementia is now recognised as the leading cause of death in England and Wales.
  • As a “safeguard” who exactly is this criterion meant to protect? Those opposed to legalised assisted dying raise concerns about disabled people and “vulnerable people” who may be persuaded by others to request assistance to die. Although deciding who may and may not be “vulnerable” is difficult, it is clear that neither “vulnerability” nor “disability” can be assessed in terms of a 6-month life expectancy prognosis.
  • One of the concerns of opponents to a change in the law is that it may be the start of a slippery slope of gradual extensions of the law. Given the problems above, it is quite easy to see why opponents might have such a concern. Clearly there are people, represented by groups like MDMD, who see the need for a more compassionate law with wider scope. We will be continuing to campaign if a right-to-die law which has these obvious limitations is passed. But we believe it would be far better to get a more appropriate law in the first place – especially when there are such obvious criticisms of the 6 month clause from both sides of the debate.

There appear to be two arguments used by those (such as Dignity in Dying) who support the 6 month rule – both seem very weak.

  • The criterion has been in use in Oregon since 1997 and it has worked well there.

The Oregon comparison is rather strange. Although the Oregon law has indeed been successfully operating there, Switzerland has had a successful and much broader acceptance of assisted suicide since 1942. Canada, in passing its right-to-die legislation in 2016, chose not to follow the Oregon example, instead preferring the more flexible condition of “reasonably foreseeable” death. In both Oregon and Canada there is a growing realisation that the Oregon model doesn’t go far enough. Why should we in the UK have to follow the US pattern, given that it has such obvious problems?

  • Opinion polls show reduced public support for assisted dying in “non-terminal” cases.

Opinion polls, while useful in gauging broad public sentiment, are not appropriate ways to decide details of legislation. The respondents of polls are not experts, and can not be expected to have carefully considered the implications of the options presented to them. How, for example, do respondents classify illnesses like dementia, which, though “terminal” may have a life expectancy of much longer than 6 months, but where there is a high probability that mental capacity will be lost? To try to better understand the range of public opinion for different forms of assisted dying MDMD commissioned a NatCen poll to test attitudes on the 6 month criterion. The poll found strong support for all forms of assisted dying described, with strongest support for a broad definition of terminal illness where 93% of people considered assisted dying acceptable in at least some situations.

Dignity in Dying, (DiD), have spent many years running an excellent campaign to try to get a law passed which follows the Oregon model, but they have met with significant defeat in the House of Commons, and reluctance to engage by the medical profession. This is in part due to the problems relating to the 6 month criterion. MDMD are aware of a number of DiD supporters who would welcome a change in direction in this respect. We have also encountered others who are unaware of the limitations of the current DiD approach. In the light of this we suggest DiD should consult its membership on their views on the six month rule.

MDMD would like to see UK right-to-die organisations listening to, and working with, doctors who still have reservations about right-to-die legislation, to come up with a different approach with wider support. The MDMD suggestion of an extended advance decision may be an alternative way of tackling legitimate concerns about protecting vulnerable people which does not depend on a life expectancy prognosis. We offer this as a possible step forward and welcome comments and constructive development of the idea.

¹Alzheimer’s Society (2012) My life until the end: dying well with dementia Baker et al.