Assisted Dying Bill [HL]

Debate between Baroness Hollins and Lord Mackay of Clashfern

Friday 7th November 2014 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, technically speaking this is a debate on Amendment 6, which was moved by the noble Lord, Lord Mawhinney. Some of the observations that have been made are not very clearly directed to that. All the same, I will talk about one of them.

The amendment in the name of the noble Lord, Lord Mawhinney, is best dealt with by Clause 4(2)(c): that the doctors administering the poison are to be sure that they have confirmed that the person has not revoked and does not intend to revoke their declaration at the last minute. As has been said, the patient has the last word in this sense: they can stop the injection if they do not want to have it at that point. If they have changed their mind following the declaration, there is ample safeguard in the Bill against any, as it were, forced injection.

I will say one thing on the intervention by the noble Baroness, Lady Warnock. As I understand it, if we bring children into the world we have responsibilities for them. Those responsibilities should not be regarded as burdens that are somehow affected by the Bill. It would be extremely dangerous to take the view, for example, that a disabled child should feel responsible for the care responsibilities that they put on their parents. If that child thinks that there is an obligation to die, because it is the only way to remove that obligation from their parents, then that is a most dangerous doctrine. In view of what the noble Baroness, Lady Warnock, said, I felt that that was something that needed to be put on record.

[Baroness Hollins]

My Lords, I believe we are debating the whole of the group, although I do agree with the noble Lord, Lord Mawhinney, that the assessment of capacity and settlement of the decision needs to be done at the moment that that decision is finalised. I do not think that the other amendments in the group are rigorous enough. My Amendments 71 and 151 have three main elements. I am drawing on my experience as a psychiatrist working with disabled people—in particular people with intellectual disabilities—and of teaching medical students about the assessment of capacity for more than 30 years.

The first element to which I want to draw attention is that, in consideration of any request for assistance with suicide, positive action is taken to establish that there is no evidence of mental disorder. The second element is the need to establish the presence of a decision-making capacity that is commensurate with a decision of this nature, as has already been suggested by my noble friend. Thirdly, the amendments propose a regime for ensuring that clinical opinions about the absence of mental disorder and the presence of decision-making capacity are taken on the basis of expert assessment.

There are in England and Wales two circumstances when a person is not permitted to make healthcare decisions themselves. One is when they lack mental capacity in relation to the relevant decision. The Mental Capacity Act 2005 applies to many decisions but assistance with suicide is explicitly excluded. Other noble Lords will explain more about decision-making capacity and the findings of the recent post-legislative scrutiny Select Committee of your Lordships’ House which examined this Act and of which I was a member.

The other circumstance when people are not permitted to make healthcare decisions for themselves is when they suffer from a mental disorder of a nature or degree that warrants, for assessment under Section 2, or makes it necessary, for treatment under Section 3, for the person to be in hospital in the interests of their health or safety or for the protection of others. If a person was depressed or anxious and wished to kill themselves, they would normally be stopped from doing so with the authority of the Mental Health Act 1983, so the additional assessments that I am suggesting in this amendment should relate not only to impaired judgment but, first, to whether the person has a mental disorder.

I remind noble Lords that the definition of mental disorder is,

“any disorder or disability of the mind”.

The psychiatrist making such an assessment must be Section 12 approved, as required by the Mental Health Act. The Mental Health Act is risk based, not capacity based. If it is in the interests of his health, a person with a mental disorder can be detained and treated. It overrides personal autonomy. The Mental Health Act does not require any impairment of judgment or decision-making capacity to be present.

If you have a mental disorder then, whether you are capacitous or not, you will not be given assistance to die. The Mental Health Act would take precedence and the person’s mental illness would need to be treated effectively before any assessment of their decision-making capacity was made. Therefore, the Mental Health Act provides another safeguard.

As I read the Bill, nothing would stop patients detained under the Mental Health Act, if they retained decision-making capacity, from being given medication to end their life. That is clearly wrong. I shall go further: it relates not just to patients who are already detained but to those who, if assessed, would meet the criteria for detention in order to treat their mental illness.

Wishing to end one’s life is a common symptom of mental illness, normally regarded as constituting grounds for psychiatric assessment. Suicide itself is not unlawful but, as a society, we regard suicidal intent as a reason to protect a patient from self-harm. We do not take the view that we should intervene in a case of suicidal intent only if we have reason to believe that the person concerned lacks capacity; we assume that a person who announces or otherwise indicates intent to take his or her own life is not acting rationally, and we do everything possible to discourage or prevent him or her proceeding. That is what all the suicide watches and all the suicide prevention strategies that successive Governments have introduced in recent years are about. Indeed, the national confidential inquiry into suicide and homicide, NCISH, which I chaired from 2007 to 2010, was set up to inform clinical practice and health policy with a view to reducing suicide rates.

The noble and learned Lord’s Bill makes it clear at Clause 6 that it is seeking to amend the Suicide Act 1961. Some may not see the provision of lethal drugs to a seriously ill person as assistance with suicide but in law that is what it is. This leads me to conclude that the Bill is out of alignment with social attitudes to suicide.

The Assisted Dying Bill also fails to provide a strong enough assurance that a person requesting assisted suicide has the mental capacity to make this decision. Capacity assessment must be decision-specific. The more serious the decision, the greater the level of assurance required that the person making the decision has commensurate capacity; that is, a level of capacity appropriate to the decision in question. The key purpose of my amendments is to ensure that there is mandated, at least in outline, a proper process for establishing the absence of mental disorder and for taking positive action to ensure the presence of commensurate capacity.

Care Bill [HL]

Debate between Baroness Hollins and Lord Mackay of Clashfern

Monday 14th October 2013 Lords Chamber

[Baroness Hollins (CB)]

My Lords, briefly, I support all the amendments in this group, particularly Amendment 124 to which I added my name. There were a number of voices calling for an appropriate system of redress for disputed decisions. Many people do not really understand social care systems and why decisions are taken and they feel powerless, often at a time when they are facing enormous challenges and may fear that complaining is going to lead to even more negative changes to their support. It seems to be a matter of justice to have a very clear and understood route to redress and I hope these amendments will be considered seriously.

[Lord Mackay of Clashfern]

My Lords, I support these amendments requiring a system of adjudication able to deal with the whole raft of matters dealt with under the Care Bill, including the borderline with continuing healthcare. The local authorities—152 or something of that sort—will administer the care system. It is quite easy to see that the same problems may arise in different local authority areas. Having a respected system for dealing with these matters would simplify a good deal of this area. I therefore strongly urge the Government to have in place a system which would provide reasonably rapid adjudication of all these issues. The social security commissioners provide a kind of example. One possible solution would be to extend the jurisdiction of the social security commissioners to include this area. Social security arrangements are certainly different from the care arrangements, but there may be sufficient similarity to make that possible. Something along the lines of the social security commissioners would be necessary for dealing with this and bringing into effect a system which local authorities right across the country would respect when one local authority’s decision was dealt with by this adjudicating authority.

Health and Social Care Bill

Debate between Baroness Hollins and Lord Mackay of Clashfern

Tuesday 25th October 2011 Lords Chamber

[Baroness Hollins]

My Lords, I seek clarification. I am very sympathetic to the amendment tabled by the noble Baroness, Lady Williams. To remove a key word without good reason causes anxiety and I am not convinced by the reason given for removing it. Perhaps I could ask the noble and learned Lord, Lord Mackay, to clarify whether his amendment would ensure that the obligations required as a result of the Coughlan case would still be protected.

[Lord Mackay of Clashfern]

Yes, precisely; I tried to say that when I referred to the 2006 Act. The passage in the 1946 Act on which my noble and learned friend Lord Woolf relied as Master of the Rolls in Coughlan was the first part—that is, the duty to promote a comprehensive health service, free at the point of need. That was its function. It was in the nature of a preamble: the first part of the first provision of the Act. That was what my noble and learned friend Lord Woolf regarded as enforceable. In relation to Amendment 1, I said that that section had been demonstrated to be enforceable in law, which one could not say for sure about the amendment that the noble Baroness, Lady Thornton, promoted as the first clause of this Bill. Of course, the provision referred to by my noble and learned friend Lord Woolf is maintained in the Bill.