This week, leaders of the oldest medical college in England will find out what its members think about assisted suicide. The Royal College of Physicians council meeting will also hear more, we may assume, about the unprecedented legal action brought against it by four of its members.
The RCP prides itself on its active role in shaping health policy. Rather like the Law Society, it engages with MPs and provides independent advice to governments. So its policies matter to us all.
In 2014, the RCP asked members for their views on what it calls ‘assisted dying’ – defined as the supply by a doctor of a lethal dose of drugs to a patient who is terminally ill and who meets other specified requirements. Assisting suicide is currently illegal throughout the UK and a clear majority (58%) of RCP members opposed any change in the law. Another 10% were against assisted suicide by doctors but would have been happy for others to supply the necessary drugs. Only 32% supported doctor-assisted suicide in 2014.
At the same time, doctors were asked what policy the RCP should adopt on the issue. In response to the three options offered, 44% thought the college should be against assisted dying, 25% wanted the RCP to support it and 31% favoured a neutral position. There was no outright majority for any option, an outcome that would have been avoided if members had been offered a binary choice. Reasonably enough, though, the RCP adopted the policy that attracted the largest number of votes.
Towards the end of last year, the RCP decided to hold another survey. Nothing wrong with that: although most members had been against decriminalising assisted suicide in 2014, views can change. But then something strange happened.
In January, the RCP changed its policy of opposing a change in the law. Instead, the council resolved to adopt what it described as a neutral position, meaning it would neither support not oppose reform. Its justification was that there had been no majority in 2014 on the question of what the RCP position should be – although, of course, there was no majority for neutrality either.
The RCP then sought endorsement for its new policy in a curious way. Its position would remain neutral, it announced, until a ‘supermajority’ of members voted otherwise. The required threshold was originally set at two-thirds but then reduced, without explanation, to 60%. Members were given the same three options as before and the result of this vote is awaited.
Although a supermajority would be mathematically possible – say, 60% against reform, 30% in favour and 10% neutral – a swing of that magnitude seems unlikely. The chances are that, in a three-way split, no option will attract the necessary 60%. So, even if more than half its members are against it, the RCP’s declared policy could slip from opposing assisted suicide to one of neutrality.
And what’s wrong with that? ‘Neutrality is understood in the public forum as a green light,’ says Paul Conrathe, solicitor for the four physicians who are challenging the RCP. ‘That’s how it will be reported in the press – the Royal College of Physicians drops its historic opposition to assisted suicide.’ It was what happened in California, he adds.
This is denied by the RCP. ‘Should the RCP adopt a neutral position,’ it said, ‘that does not signal tacit support for a campaign to change the law. Rather, it allows the college to reflect the fact that there are strongly differing views in medicine, just as there are in society.’
Conrathe’s crowdfunded clients – a consultant cardiologist, a retired consultant in palliative medicine, a consultant old-age psychiatrist and registrar in renal medicine – oppose the RCP’s policy change on traditional judicial review grounds: that it was reached without consulting members, it breaches their legitimate expectations, it is irrational and so on.
Those arguments are persuasive. But the real question for the courts is whether the RCP is amenable to judicial review on this issue. That, in turn, depends on whether the college was exercising ‘public functions’ in holding a ballot. The claimants argue that it was. The RCP, which has declined to comment on the legal action, will presumably argue that it was not. If that view is accepted, the claimants will have to fall back on a private law claim seeking declaratory and injunctive relief.
Judicial review can be justified only if the RCP is exercising what the claimants describe as ‘public advisory functions’ – in other words that its views will have an impact on public debate. Ironically, that seems unlikely. There can be little chance that any well-informed person will be taken in by such a suspect poll.