Assisted Dying Bill [HL]

Baroness Cumberlege Excerpts

Friday 7th November 2014 Lords Chamber

[Lord Stirrup (CB)]

My Lords, I will speak very briefly. I intended to preserve my first intervention for an amendment to which I have attached my name in the second group, but a couple of things have been said in this excellent debate that we should reflect on and that need a little clarification. It has been said that the Bill is not about doctors or lawyers, but about patients and patients choosing to die. That is not the case. The Bill is about others being permitted to contribute to a patient’s death. This is not the dying Bill, but the Assisted Dying Bill. It is imperative that we focus our attention on the rules and safeguards that would be applied to those who will contribute to a particular patient’s death.

In his very moving speech, the noble Lord, Lord Campbell-Savours, said that people simply want out. I understand that entirely and I absolutely respect it. Some people will of course have religious objections to that. I do not. I get that, I understand it and I do not believe that anyone should stand in their way. However, this is not just about people wanting out, but about people wanting others to help them through the exit. That raises fundamental issues of ethos in a number of professions. As the noble Lord, Lord Ribeiro, has said, this is a significant issue for the medical profession. I am not a member of it, but I have family connections and have spoken to many doctors—some of them relatives—on this issue. There is huge concern about it. I will expand on those issues in a later amendment. However, we should not concern ourselves with who in this House feels compassion; we all do. I am sure that we are all very sympathetic to the motives behind the Bill. As I said at Second Reading, I have the profoundest respect for the people who have brought the Bill forward and for their motives. However, I also have the profoundest reservations that, in attempting to do something good, we may in the process do something that will be much more harmful in the long run.

[Baroness Cumberlege (Con)]

My Lords, I totally agree with what the noble and gallant Lord has just said. I come from a medical family. I am not a doctor, but I was made a fellow of the Royal College of Physicians, which asked me whether I would chair a working party to look at medical professionalism. That comes very much into these amendments.

We spent a very long time thinking about this extremely difficult issue. Do people care about professionalism? Where is it? How is it defined? What is it all about? We had a very interesting scribe—the editor of the Lancet, Richard Horton—who devised an extremely good definition, which was very long. I said to my working party that I would not remember that great paragraph if somebody said to me, “Lady Cumberlege, what do you mean by ‘medical professionalism’?”. We put our heads together and thought very strongly. We decided that medical professionalism is signified by the values, behaviours and relationships that underpin the trust the public has in doctors.

I very much support my noble friend Lord Carlile’s amendment. I fear that if we do not adopt something like this, which he described as a complete court-based model, trust in the medical professional will be eroded. That is surely the last thing that any of us wants. The noble and right reverend Lord, Lord Harries of Pentregarth, made a very interesting speech and I very much support what he said. However, I take issue with one thing. He talked only about doctors; we have heard only about doctors. Reference is made in the Bill to clinicians and to nurses. The noble Lord, Lord MacKenzie, and I have tabled a number of amendments, which we will come to later, on the role of nurses in this. They are mentioned as clinicians. I met with the Royal College of Nursing yesterday—I am also a fellow of its college—and we had a long discussion on this. There are one or two wrinkles on prescribing, but the same issues of professionalism are shared by nurses.

My noble friend Lady Wheatcroft dismissed very quickly the idea that there was a lot of abuse. We have already been urged to think about the patients. On 14 May, I initiated a debate in your Lordships’ House on elder abuse, in which 12 noble Lords took part. I had to research that topic. It was very interesting. If you look at things such as the Care Quality Commission and recent reports into Mid Staffordshire and all the rest, we know that a certain amount of abuse is taking place, certainly in residential homes, nursing homes, hospitals and prisons, but also in people’s own homes. The Department of Health estimates that just under 500,000 elderly people are subject to abuse in the community. That is why we want a differently shaped Bill and why we want to take the National Health Service—healthcare—out of making the final decisions. As my noble friend Lord Tebbit said, it is very hard to discover where the abuse is taking place, especially in people’s homes. That is why it is essential that we accept the amendment tabled by my noble friend Lord Carlile.

[Lord Alton of Liverpool (CB)]

My Lords, I support very strongly what the noble Baroness, Lady Cumberlege, has just said about the effect of the Bill on medics. I was struck by a recent conversation that I had with one of my sons, who is a fifth-year medic. He very much welcomes the stand that the BMA and the royal colleges have taken in saying that they would not wish to see a change in the law because of the position that it would place doctors in. He argues, as I would argue, that you do not need a doctor to kill you to die with dignity. I was very struck by what the noble Lord, Lord Howard, said about the roles that the hospice movement and palliative care can play.

However, I see the point of these amendments and I understand what my noble friend Lord Pannick and the noble Lord, Lord Carlile, are trying to do in improving the Bill. It is right that we should, at a Committee stage of the House, take the amendments extremely seriously, as we are required to do. Therefore, I honestly believe that today we should not be pressurised by either time or the thought that we are going to be railroaded into taking votes at this stage. I hope that those who have been calling for greater reflection on the amendments will be listening, too.

My noble friend Lady Murphy said that this is a decision for patients. However, implicit in the amendments is the fact that it is not just a decision for patients. This will require an assessment process. It is not an “on demand” situation, and therefore there is the possibility that from time to time such proposals will be rejected as well by the courts.

My noble and gallant friend Lord Stirrup rightly made the point that there will be people who are unable to take these decisions for themselves. That returns to one of the cases raised during the opening remarks of my noble friend Lord Pannick. He mentioned the case of Tony Bland, who went into a persistent vegetative state as a result of the football game that took place at Hillsborough. On Monday, I went to Warrington. I was incredibly impressed by the extraordinary resources and time that have been put into the new inquest process and by the work being done by the Independent Police Complaints Commission in reinvestigating the events. I made my own deposition there.

I was thinking not about the Tony Bland case—although I am well aware of it and well aware of those of my then constituents who died at Hillsborough—but about the case of Andrew Devine, who was a constituent of mine and who also went into a persistent vegetative state. It was predicted at that time that he, too, would die. Of course, Tony Bland was never on a life support machine; he had food and fluid withdrawn—a decision made through the court process. I just reflect that Andrew is still alive and is loved and cherished by his family. Having been in a persistent vegetative state and been told that he would never be in a position to take solid foods again, within a couple of years he was able to do so. Therefore, we have to be careful about prognosis. We have to be very careful in assuming that we will always get these things right.

Every single case matters, and that is what I would say to the noble Baroness, Lady Wheatcroft, following the intervention made by the noble Lord, Lord Deben. Every single case matters; it is not just about the one or two people who will not be able to take decisions for themselves. Public safety goes to the very heart of the concerns raised by my noble friend Lady Finlay and in the amendment put before us by the noble Lord, Lord Carlile.

I was struck by what Lord Sumption said in the Supreme Court judgment. He said:

“It is right to add that there is a tendency for those who would like to see the existing law changed, to overstate its difficulties”,

by suggesting that,

“the current law and practice is less humane and flexible than it really is”.

So we are not at a settled point as far as this legislation is concerned.

I have been genuinely surprised that another place has not been given the opportunity to reflect on the extraordinary moral and ethical issues in this legislation, which are also contained in the questions raised by this amendment. One should recall that the Guardian said about the Bill:

“It would create a new moral landscape. It is also, potentially, open to abuse”.

That is what I think the amendment of the noble Lord, Lord Carlile, seeks to address. The newspaper went on to say:

“Reshaping the moral landscape is no alternative to cherishing life and the living”.

The Daily Telegraph said:

“The more assisted dying is discussed, the more its risks will become apparent”.

That was the point made in the eloquent remarks of the noble Lord, Lord Tebbit, who reminded us today of the pressure that can be placed on vulnerable people. We should recall the speech made at Second Reading by my noble friend Lady Campbell of Surbiton: it is not just the BMA and future medics; it is not just the hospice movement; it is also the disability rights organisation, whose representatives are standing outside this House today. I spoke to them this morning on my way in. They hope that, if we proceed with the Bill, we will do everything we possibly can to put in greater and stronger safeguards. Therefore, I hope that we will have a chance between now and Report to reflect on the different approaches contained in these two amendments and that the noble and learned Lord, Lord Falconer, will also go away and reflect on them following today’s debate.

--- Later in debate ---

[Baroness Finlay of Llandaff]

I will certainly try to explain. The data come from the Oregon Health Authority’s own reports, which are written annually, based on the returns by the doctors. We know only the information that is given by the doctors; we do not know what goes on otherwise. If a doctor does not report it, it is not known. We also know from the Oregon health reports that three patients actually woke up again and did not go on to die.

The point is that you are giving a massive dose of barbiturates that is at least 20 times what you might use therapeutically to render someone unconscious but leave them alive; it is a huge dose. When someone is frail and very near death, they may well die rapidly from ingesting a small amount of an additional drug, but I would also point out that in its data the Oregon Health Authority says that the shortest time was one minute, and that is before any drug would be absorbed. I found that interesting because, in my own clinical experience, there are patients who, when the family says to them: “It’s okay, you can let go”, die within minutes of that statement being made. In other words, when they are given permission to die, they let go of the drive to stay alive. I wonder whether the figures in Oregon showing a very short time demonstrate that the person has signalled that now they are letting go, and that is it. I am worried by the prolonged figures, however, and I would point out that the median means that half the cases take longer than 25 minutes. That still seems to me to be quite a long time, but we will discuss complications later in the debate, not in relation to these amendments.

There is merit in not using the clinical team that is looking after the patient, whoever they are, but using an independent assessment by people who are properly trained in assessing capacity and who have the ability to ask questions about the family that the doctor who was looking after the patient may, for whatever reason, feel uncomfortable or inadequate about asking. They may not be adequately trained, because very few doctors are properly trained in assessing capacity. I also emphasise to the House the merit of having an independent person give the drugs.

My final point is that it is important to look at those jurisdictions that have changed the law regarding what happens if you do not have the kind of control that the amendments of the noble Lord, Lord Carlile, have been trying to put in. We know from Belgium that 32% of its physician-assisted euthanasia—that is how its law is framed—now happens without the explicit request of the patient, and we know from Belgium’s own data that it estimates that 47% is not reported. So without having these kinds of controls, you develop a very leaky system. The thought of people’s lives being ended without their explicit request is something that I find horrifying.

[Baroness Cumberlege]

I return to the point raised by my noble friend Lord Jopling about 41 hours. Does the noble Baroness envisage that there would then have to be a turnover of the staff with that person because we do not want people to die alone? I am thinking of how nurses operate their shift systems. This would possibly mean that you would get different people unknown to the patient coming in to sit with them during the 41 hours. Normally, nurses will try to stay with their patient for as long as possible.

[Baroness Finlay of Llandaff]

I thank the noble Baroness for her intervention. She has made a very important point. You would be tying up healthcare staff for an extremely long time. Indeed, there would have to be a change of shift. That is important for whoever has been involved in whichever process. The court-appointed person could change shifts and be in attendance to make sure that there was no foul play. It is not adequate just to deliver the drugs because the patient might not take all of them, and then what happens to the residue? I know the noble and learned Lord, Lord Falconer, has tried to address that. You need somebody there to make sure that people do not think, “This is going on too long. Why haven’t they died yet?”, and put a pillow over their head. If the patient is going to be one of the people who wakes up again—and the number is very small—it is worth noting that those who woke up again in Oregon did not go for a second attempt at physician-assisted suicide but continued living until such time as they died naturally of their disease. There is something much more important going on here, but it would be extremely dangerous not to have that court-appointed person or system provide for accompaniment.