Assisted Dying Bill [HL]

Baroness Murphy Excerpts

Friday 7th November 2014 Lords Chamber

[Baroness Hollins (CB)]

My Lords, as a doctor, I would also much prefer a judicial process. I had the good fortune yesterday to speak to Professor Peter Rubin, the chair of the General Medical Council. I asked him whether many doctors had yet been referred to the GMC because they had failed to provide adequate pain relief to someone in the last days of their life. He said he did not know the answer but kindly drew my attention to the GMC’s guidance, which I thought would be good information and useful for our discussion. It is entitled, Treatment and Care Towards the End of Life: Good Practice in Decision Making. He referred me in particular to paragraphs 24 to 27. I shall read just a short part of paragraph 27, which states:

“You must seek advice or a second opinion from a colleague with relevant experience … if … you and the healthcare team have limited experience of the condition … you are uncertain about how to manage a patient’s symptoms effectively”,

and if,

“you are in doubt about the range of options, or the benefits, burdens and risks of a particular option for the individual patient”.

I will not finish reading out the paragraph. Although we may lead the world in palliative care, it is still a developing but important specialty and area of expertise, and we should give it adequate opportunity to continue to develop without interfering and changing the role of the doctor.

[Baroness Murphy (CB)]

My Lords, I will stick to the amendment. I told the noble Lord, Lord Pannick, a few days ago that I would not support it for all the reasons that the noble Baroness, Lady Wheatcroft, mentioned, and the reasons raised by the noble Lord, Lord Campbell-Savours. This is a decision by patients—let us come back to them—it is not a decision by doctors. Any judicial intervention placed between the patient and the processes by which they could be helped in what they want is likely to be difficult. Remember also that patients every day make decisions to end their lives. They make a decision not to have that last chemotherapy offered to them. They have had perhaps a year of it and they do not want any more. That wish is respected, their capacity is rarely mentioned and they make that decision.

However, I have thought a great deal over the past few days and looked again at the Second Reading debate. The anxiety raised was sufficient to suggest that perhaps we need to put in a process that can be quick. Operating in the mental health world, I know that the courts can readily convene at 24 hours’ notice; I have often had to take a magistrate’s order and get a court decision quite quickly. It is possible for someone to have judicial oversight within a short time if the process is developed correctly. Looking at the range of options provided in this group of amendments, I would say that the amendments of the noble Lord, Lord Pannick, are worth supporting, and I will go with them despite my original anxieties. They will make the Bill workable and not destroy it, whereas the amendments of the noble Lord, Lord Carlile, would make it unworkable. For that reason, I urge all noble Lords who like the principles of the Bill to support the noble Lord, Lord Pannick, in his amendments.

[Lord Cormack (Con)]

My Lords, I hope we will not be called upon to vote on either amendment but very much hope that the noble and learned Lord, Lord Falconer, will reflect most carefully on what has been said. He knows that I totally respect, indeed honour, his motives in bringing the Bill before the House. He knows also that I have considerable misgivings. However, this House decided, rightly, to give the Bill a Second Reading, and it is now our duty to try to improve it so that those of us with misgivings have them allayed so far as possible, and so that those who believe in the Bill, and are a little impatient in their belief, will accept that we are in no sense seeking to retard the Bill’s progress, but rather to improve it. I make that point in particular to the noble Baroness, Lady Blackstone, who intervened a few moments ago.

--- Later in debate ---

[Lord Maginnis of Drumglass (Ind UU)]

My Lords, I have wondered at what stage I should intervene in this debate in so far as I am not a doctor or a lawyer. I find myself with the problem that life has not for me been exclusively about doctors and lawyers and those erudite few who can argue about other people’s lives. I hope that those who would try to persuade us that this Bill is a necessity for this so-called sophisticated age in which we live are able to understand that the majority of us live our lives on the basis of a moral code—it has never let me down in 77 years—where, collectively, we have least difficulty in finding ourselves able to coalesce in defence of what we usually refer to as the common good.

I get the impression that it is not fashionable to admit to a faith that is based on the 10 commandments but that there is a prevailing view of our times that favours—indeed, espouses—individual morality where there is no absolute right and no absolute wrong. It suggests that each individual has at a specific moment some inherent right to choose what falls within one’s own moral compass. Surely that is a selfish, if not arrogant, position that in this specific instance must toss us on the horns of a dilemma. Should we, from within this comfortable and privileged Chamber, acknowledge the established right and wrong in how we seek to protect the vulnerable, the elderly and those unable to protect themselves, or do we absolve ourselves by criticising those like the extremists in the Middle East, those who mutilate young women through FGM or abortion doctor Kermit Gosnell as they comply with the tenets of their own moral compass?

All I have to say, because I am not a lawyer or a doctor, is that we can decide to look the other way, to pass on the other side, or we can show the compassion and the responsibility of the good Samaritan, however inconvenient that may be to those who would turn our lives into a philosophy that is questionable, contradictory and argumentative.

[Baroness Murphy]

My Lords, I have two amendments in this group which I wish to discuss briefly. I should say that I am an academic psychiatrist who practised in the community for many years. I have done more testamentary capacity cases than I care to remember, as I practised with elderly people for 30 years. Therefore, I reckon that I am as much an expert on capacity as anybody in this House.

--- Later in debate ---

[Lord Tebbit]

My Lords—

[Baroness Murphy]

Can I just finish my points? Essentially, of course the capacity issue is one that doctors deal with every day. As the noble Baroness, Lady Hollins, has often pointed out, they are not very good at it unless they are specifically asked to do it. That is a crucial point. There is a difference between a doctor just ticking a box and those who have to say they are there to assess capacity. In this Bill, they are there to assess capacity. Should we have a “supercapacity” category? Should we ask for a solicitor? That would make it extremely difficult for the patient who would have to clear yet another enormous hurdle. It would be too much.

I have discussed this with the Royal College of Psychiatrists. There are, in fact, three fellows of the Royal College of Psychiatrists in this House; one is against the Bill while two of us are supportive of it. That indicates how most of the royal colleges are split. It is not that there is a split between those doctors who are for and those who are against, in the way that the BMA describes it. The BMA has never asked its members; it would not risk it. The Royal College of Physicians is consulting again but, in fact, most of the royal colleges are now neutral on the issue.

I suggest that we look seriously at how we can strengthen the Bill in relation to capacity as it is described at the moment. If those doctors who are not specialists in capacity, as happens now in relation to many decisions, have any doubt whatever, they should be able to refer to a specialist—a psychiatrist who specialises in capacity. I will sit down for a moment.

[Lord Tebbit]

I am grateful to the noble Baroness, because she has launched herself off into dealing with an argument that I did not make. She misheard what I said. I was not talking about people changing their minds. We all do that at times. I was talking about people whose capacity was changing. That is an entirely different argument, and it would help if she dealt with the argument I made, not with the argument she would like me to have made.

[Baroness Murphy]

I am happy to apologise to the noble Lord, Lord Tebbit. Of course people change in their capacity. The way in which the Bill is phrased and the way in which the code of practice needs to be devised must take account of people’s changing capacity. I accept that completely. The noble Lord is right; people change in their capacity.

Amendment 54 adds a provision in the Bill that a patient should be referred to a specialist if there is any doubt in the minds of the attending consulting physicians on the patient’s capacity. That safeguard is in the Oregon legislation and is worthy of being put in this Bill. It could easily be put into the code of practice also, and that is where those of us who originally were concerned about the Bill had in mind for that provision to go. However, if people would feel more reassured that it should be in the Bill, I would support that. We must get away from the notion that doctors somehow do not understand capacity or use it. They do so every day of the week—not always perfectly but sufficiently to this end. We cannot expect that people should have a sort of supercapacity over and above what is generally accepted by the courts.

This issue was given a great deal of thought during the creation of the Mental Capacity Act, but ultimately the way that Acts are implemented has to depend on the way that codes of practice are devised. That is where the professions must come in: to help us and to tell us what they would like and what people think. To take a very good point made by the noble Lord, Lord Griffiths of Burry Port, this is not just an issue for doctors to decide; it is about other people coming in to say what the code of practice would look like and what lawyers, relatives, indeed all of us would think was an appropriate level of mental capacity. It will, of course, be extremely high and quite different from testamentary capacity, where the test is quite low.

I propose that we support Amendments 54 and 59, but I do not support the amendments at the beginning of the group.

[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.