Covid-19 Regulations: Assisted Deaths Abroad

Tuesday 10th November 2020 Lords Chamber

Commons Urgent Question

The following Answer to an Urgent Question was given in the House of Commons on Thursday 5 November.

“Issues of life and death are some of the most difficult subjects that come before us in this House, and the question of how we best support people in their choices at the end of their life is a complex moral issue that, when considered, weighs heavily upon us all. My right honourable friend the Member for Sutton Coldfield (Mr Mitchell) asked an important question and I want to set out the precise position. Under the current law, based on the Suicide Act 1961, it is an offence to encourage or assist the death of another person. However, it is legal to travel abroad for the purpose of assisted dying where it is allowed in that jurisdiction. The new coronavirus regulations, which come into force today, place restrictions on leaving the home without a reasonable excuse; travelling abroad for the purpose of assisted dying is a reasonable excuse, so anyone doing so would not be breaking the law. These coronavirus regulations do not change the existing legal position on assisted dying.

As this is a matter of conscience, the Government do not take a position. It is instead a matter for each and every Member of Parliament to speak on and vote according to their sincerely held beliefs, and it is for the will of the House to decide whether the law should change. The global devastation of the coronavirus pandemic has brought to the fore the importance of high-quality palliative care, just as it has shone a spotlight on so many issues and, as difficult as it may be, I welcome this opportunity to have this conversation about assisted dying, as it is one of the most sensitive elements of end-of-life care.

I have the greatest sympathy for anyone who has suffered pain in dying or suffered the pain of watching a loved one battle a terminal degenerative condition, and I share a deep respect for friends and colleagues in all parts of the House who share and hold strong views. I am pleased that the House has been given this opportunity to discuss the impact of the pandemic on one of the most difficult ethical questions that we face.”

13:21

[Baroness Thornton (Lab)]

My Lords, I think it is to be welcomed that the response to the Urgent Question last week was that travelling for the purposes of an assisted death would be exempt from lockdown travel restrictions. However, there are concerns that this Statement did not go into detail about whether family members could accompany people. Legal constraints mean that it is not clear whether the exemption applies to them. Presumably, they would have to demonstrate their reasons for travel and might, in the course of doing so, incriminate themselves for assisting a suicide. So can the Minister clarify that family members accompanying someone travelling for an assisted death will not be vulnerable in this way? If the Minister does not know the answer in detail to this important question, please would he seek to find out from the Ministry of Justice, write to me, and put the letter in the Library?

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Bethell) (Con)]

The noble Baroness is entirely right on the question of travelling abroad for the purpose of assisted dying. It would be regarded as a reasonable excuse, and therefore anyone who did would not be breaking the law. In answer to the noble Baroness’s question, under Section 2(1) of the Suicide Act 1961, a person does commit an offence if he or she

“does an act capable of encouraging or assisting the suicide or attempted suicide of another person”

and that act

“was intended to encourage or assist suicide or an attempt at suicide.”

The 1961 Act provides no exceptions to the prohibition on assisting suicide. The maximum penalty, as noble Lords may know, is 14 years, and there is nothing in the Coronavirus Act or any recent legislation that in any way changes that.

[Lord Purvis of Tweed (LD)]

My Lords, whilst the 1961 Act provides no exemptions, as the Minister said, the Director of Public Prosecutions has issued guidance with regard to the avoidance of prosecution in this area. Will the Government ask for that guidance to be looked at again, in the context of the sensitive words of the Secretary of State for Health, to avoid the very situation that has happened in the past where public authorities sought injunctions against family members who supported those who took the very difficult decision to travel abroad? I live in Scotland, where the Suicide Act 1961 has never applied. Will the Government work with the Scottish Government to start collecting data? It was welcome that the Health Secretary indicated the openness of the Government to do that, so we can get a proper understanding of how many people are making the very difficult decision to travel abroad.

[Lord Bethell (Con)]

The noble Lord is entirely correct; the Director of Public Prosecutions’ policy for prosecutors in respect of cases of encouraging or assisting suicide sets out factors which prosecutors in England and Wales will consider, in addition to those already outlined in the code for Crown Prosecutors when deciding whether it is in the public interest to prosecute in cases of encouraging or assisting suicide. Among the public interest factors tending against prosecution are that the victim had reached a voluntary, clear, settled and informed decision to commit suicide and that the suspect was “wholly motivated by compassion”. I completely take on board the noble Lord’s encouragement of this review. There is no review planned, but we all acknowledge the changing tone of this debate and I will take his suggestion back to the department. On the point about Scotland and data, I acknowledge different circumstances in Scotland and the remarks on the importance of collecting data from my noble friend in the other place. That is indeed our intention.

[Baroness Hayman (CB) [V]]

My Lords, the Minister’s response to the second question today was more reassuring than his response to the first. I am sure he would agree that these are desperately difficult situations for families, and to have the uncertainty about whether someone would have to undertake alone a journey that should never be undertaken alone because of a wish to protect their relatives from prosecution is frankly unthinkable. On the wider point, could he assure the House that some urgency will be given to this issue of collecting data and seeing in the round the problems that are being caused? We have had piecemeal changes such as the changes from the DPP, but we need to understand more comprehensively the exact implications of what is going on.

[Lord Bethell (Con)]

The noble Baroness is entirely right; Covid has, in a very sad way, thrown a spotlight on the circumstances of those dying alone. That is one of the harshest and most heart-breaking dimensions of this awful pandemic. It throws a spotlight in particular on the way in which the law is applied in this country. The collection of data is a very important component of our review of this important area and I will definitely ensure that the indication given by my right honourable friend in the other place is picked up back at the department.

[Baroness Jay of Paddington (Lab) [V]]

My Lords, I am generally encouraged and relieved by the Government’s responses on this Statement, particularly the point made in the Commons by the Secretary of State that assisted dying must be considered in the general discussion of good end of life care. I hear the Minister say that a formal review is not planned, but when the Government come to look at the concerns about death and dying that have been thrown up by the pandemic, will they ensure that the questions of proper personal choice at the end of life will be both included and emphasised?

[Lord Bethell (Con)]

Well, this is an extremely complex issue. As the noble Baroness alluded to, there is a wide variety of issues at stake, including values issues, questions of faith and, as she rightly said, questions of personal choice. There are the components here for an important national debate. I acknowledge the comments of several noble Lords already that we are approaching the moment when that debate seems more relevant than it has ever done. When that debate takes place, certainly personal choice will be an important part of it.

[Baroness Grey-Thompson (CB) [V]]

What advice did the Secretary of State, Matt Hancock, have from the Director of Public Prosecutions in relation to the official guidance? The response on travelling to Dignitas suggests assisting suicide is an urgent act and encourages the suicide of those with disabling conditions. Some 25 years on from the Disability Discrimination Act, and with the rise in post-Covid mental health problems, this is particularly inappropriate, as data from other countries shows that the major driver for seeking assisted suicide is the fear of being a burden, and other social factors.

[Lord Bethell (Con)]

In direct answer to the noble Baroness’s question, I am not sure whether any advice was given by the DPP, because there has been no change in the law. Nothing we have done here changes in any way either the 1961 Act or the advice of the DPP. So, from that point of view, the consultation is not necessary. What we have sought to do is clarify travel guidance in a way that does not change the application of the law in the country.

[Baroness Jenkin of Kennington (Con) [V]]

My Lords, the Secretary of State said in the other place that this conversation on assisted dying must happen

“in an evidence-based, sensible and compassionate way.”—[Official Report, Commons, 5/11/20; col. 480.]

What efforts will the Government be making to ensure that we as a House have all the evidence available to us when this important debate next reaches the Chamber?

[Lord Bethell (Con)]

My Lords, the debate has not been scheduled, but evidence that would be of interest includes evidence from clinicians themselves, many of whom have seen some movement in their attitudes on this subject. There is also an enormous amount of values-based and faith-based evidence from those who have a particular view on this subject. There is also the evidence of the personal choices of those approaching death themselves. There are extremely moving testimonies by individuals faced with very daunting and challenging circumstances. All of these views have relevance and value, and they should all be part of this important and delicate debate.

[Baroness Stuart of Edgbaston (Non-Afl)]

My Lords, in response to the noble Baroness, Lady Grey-Thompson, the Minister stressed that this was travel advice, but surely it goes further than just travel advice. At a time of Covid, when many people in care homes would seek the companionship of members of their families but forgo it in the wider community interest, is it really the right decision to create a presumption that people at the end of life only have the option to travel abroad and to facilitate that? Surely more palliative care and more focus on helping people to a good death are more important during this Covid crisis than facilitating people to travel abroad.

[Lord Bethell (Con)]

I entirely agree with the noble Baroness that the contribution of hospices and the role of those involved in palliative care has been an incredibly important part of the Covid crisis, and it has given huge succour, compassion and care for those at the end of their life. We have sought to help with the financing of the hospice community with a substantial £150 million payment in the first wave, and there are currently talks in place on funding for hospice care through the second wave. Hospices’ work is enormously valued, and anything in this debate does nothing to underplay the value of the role that they play at the end of people’s lives.

[The Deputy Speaker (Lord Haskel) (Lab)]

My Lords, the time allowed for this Question has now elapsed, so I move to the next item of business.