Assisted Dying Bill [HL]

Lord Carlile of Berriew Excerpts

Friday 16th January 2015 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, it is always a pleasure to follow the right reverend Prelate the Bishop of Carlisle, not least because he and I have a greater insight than most into each other’s parliamentary lives, as we receive a great deal of each other’s post on a mostly daily basis.

I hesitate to disagree with words used so firmly by the noble Lord, Lord Pannick. I do so particularly because, not so long ago, he appeared as my counsel in a public law case with his customary brilliance. However, the emphasis of his assertion, that this Bill is perfectly clear, is in my view just plain wrong, mainly for the reason given so clearly by the noble and right reverend Lord, Lord Harries of Pentregarth. As he was speaking, I was thinking back to the death two years ago of my then 98-and-a-half year-old mother. The family took enormous steps to assist her death. We put her in the place that we thought was most comfortable for her death—she did not agree, but that was characteristic of our robust and loving relationship. We took steps to ensure that all her grandchildren and great-grandchildren went to see her. We brought her her favourite alcoholic beverage, something rather eccentric called Wiszniowka. We did everything we possibly could to make her as comfortable as was possible. But we did not assist her to commit suicide. She died a natural death as a result of, unfortunately, rampant disease which she experienced in old age.

We debated earlier this week part of another Bill, the Counter-Terrorism and Security Bill, in which something was described as the Privacy and Civil Liberties Board, which was anything but a privacy and civil liberties board—it was a perfectly legitimate suggestion, but it was not what it said on the tin. This Bill empowers people who would otherwise be committing a serious crime to be excused from the criminal consequences of their action. It enables people—apparently doctors under its provisions as they stand—to kill other people deliberately, after consideration, with purpose. Anyone who believes that that is not the case is not taking a realistic look at the Bill. It is a matter for Parliament whether that is a proper thing for Parliament to do—I am not commenting on that at the moment, although I am opposed to it—but it is misleading to the public not to say what the Bill does, both in a provision such as that proposed by the noble Baroness, Lady O’Neill, and in the Title, which we will debate at a later stage, if we get to it.

When we include in the Bill words like those proposed by the noble Baroness and others, we are providing clarity which tells us two things about impact: first, it tells us about the impact on the person who is giving the assistance—as I said, they are committing a serious act which would otherwise be a breach of the law which might well land them in prison; secondly, we are describing the impact on the person who is wishing to die. We are saying that this is not a normal death, even if it is a death which is assisted by what is sometimes called, very clearly, the doctrine of double effect. We are making it clear that that person is dying because they wish to do so.

I am surprised to hear so much opposition from supporters of the Bill to giving within it a clear description of what they intend. If they do not accept this kind of amendment, then others, including some journalists who have been commenting favourably on the narrow scope of the Bill, may well come to the conclusion that it is indeed just a stalking horse for euthanasia.

[Lord Warner (Lab)]

My Lords, I have been sitting through these debates for 12 years—

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Moved by

[Lord Carlile of Berriew]

13: Clause 2, page 1, line 13, leave out “a registered medical practitioner” and insert “at least two registered medical practitioners, with one of whom the person has been registered for medical care for at least six months immediately prior to making the declaration at section 1(2)(b) and at least one of whom has diagnosed the terminal illness and treated the person in relation to that terminal illness,”

[Lord Carlile of Berriew]

My Lords, I beg to move the amendment standing in my name and in the names of the noble Lord, Lord Darzi, and the noble and right reverend Lord, Lord Harries of Pentregarth. In relation to pre-emption, Amendment 13A is part of this group, and will be moved by the noble Baroness, Lady Finlay of Llandaff. It has the effect of amending the term “registered medical practitioners” to “licensed medical practitioners”. I make it clear at the outset that I have no objection whatever to that amendment being made. Indeed, I regard it as a helpful amendment to my amendment, for a reason that I shall now give.

As I understand the situation, a registered medical practitioner could be any medical practitioner who is on the register. I suppose that that is stating the obvious, but that could include, for example, a medical practitioner who is retired but who has chosen for one reason or another to remain on the register. It could include a registered practitioner who has not laid hands on a patient for a very long time. A licensed medical practitioner is one who is shown in the General Medical Council’s relevant documents to hold a particular expertise or expertises that are current. I am sure that the noble Baroness, Lady Finlay, will explain that more expertly than me in a little time.

I regard this group of amendments as extremely important, because they come at the gateway to assistance with suicide and assistance with dying that is provided for in this Bill. The gateway is diagnosis; nobody can go through that gateway unless they have been diagnosed as terminally ill—and what terminally ill means is defined.

I cite table 1 on page 7 of the Oregon’s Death with Dignity Act Annual Report for 2013. Its figures show that the median patient-physician relationship prior to assisted suicide in Oregon in 2013 was 12 weeks. That means that for the 752 people in Oregon recorded as dying using the Death with Dignity Act, half knew their doctor for 12 weeks or less.

I make no complaint about these issues if we are to have this Bill as an Act, but what are the issues that the diagnosing doctor or doctors are to certify themselves as satisfied about? First, it is that the person concerned has an inevitably progressive condition. That is quite a serious medical diagnosis, as is plain, to be determined at the date of the diagnosis. Secondly, it is that it cannot be reversed by treatment. In Clause 2(2), it is stated:

“Treatment which only relieves the symptoms of an inevitably progressive condition temporarily is not to be regarded as treatment which can reverse that condition”.

That is a very complex provision. The medical determination of whether medication or other treatment “only relieves the symptoms” is far from simple. How is one to judge whether it “only relieves the symptoms” or whether it provides some form of remission which goes rather further than only relieving the symptoms?

Then there is the provision in Clause 2(1)(b) that the person,

“is reasonably expected to die within six months”.

There was a discussion on Radio 4 this morning about the meaning of an expectation that someone will die within six months. This to a great extent is not science in the sense that no doctor, save in the most extreme circumstances, can predict when a person will die. Whether a person is potentially on the cusp of being expected to die within or around six months is certainly not something that I understand has ever been scientifically researched in full. Indeed, I recall in a debate some years ago a most compelling and memorable speech given by the noble Baroness, Lady Symons of Vernham Dean, in which she described exactly a circumstance in which it was predicted that someone extremely close to her would die within a very short time, and the person is still alive today. So this is very inexact medical science, and it is asking a great deal of doctors to make that kind of diagnosis.

What are the characteristics that might make that kind of diagnosis reliable and reasonable? I am sorry; I referred to my mother earlier and I am now going to refer to my father, who was a general practitioner in Burnley, Lancashire. One of my treasured possessions, which sits by my desk at home, is his last visiting book for the last year he was in medical practice. I spent much of my very happy childhood being given sweets by dear old ladies whom he visited on his rounds; it was one of the things that made me go on his rounds with him in his Austin A30. I reminded myself of what he used to do by looking at the book this morning. First, he used to visit his patients. I do not believe that anyone in my family has had a house call from their general practitioner in the 21st century, but it used to be very common. As I refreshed my memory this morning, I saw that he used to place his rounds in two columns: one was the calls that had been taken by the surgery—people who were ill and wanted the doctor to call—and the other was what he used to call, perhaps slightly unattractively, his “chronics”. His “chronics” were patients he visited on a periodic or regular basis. Some of them became friends to him and he knew all about their lives. He knew about the progress of their illness and about their domestic circumstances. He knew whether their children cared for them or took any interest in them. He knew whether they were poor or affluent and was able to ensure in the terms of those days that whatever statutory care was available was provided. In other words, he and doctors like him had a relatively intimate knowledge of their patients. When he met them in the streets of that great east Lancashire town, he could never remember who they were but he could always remember exactly what was wrong with them and members of their families. It is a bit like we lawyers remembering cases without necessarily being able to remember the names of those cases.

I know that it is dangerous to be nostalgic about medicine although, if we look at the state of the health service today, perhaps nostalgia is decent evidence, but when we look at the relationships that such doctors have with their patients, it is undoubtedly the case that they have, and had, a body of knowledge on which to base their diagnosis. We are not talking about diagnosing measles. We are not even talking about diagnosing some extremely unpleasant diseases; we are talking about diagnosing if and when someone is going to die.

My view, and that of the noble Lords who have also signed this amendment, and, I hope, of many others, is that nobody should go through the gateway of this Bill unless they have been seen by medical practitioners—I respectfully suggest to your Lordships that it should be no fewer than two—with at least one of them having had relevant care of that patient for at least six months, so that they have been able to build up a knowledge of that patient. It is difficult to imagine somebody with a terminal illness who has not had a relationship of six months with a doctor unless they have been involved in a trauma that has happened very recently.

[Lord Avebury (LD)]

Would my noble friend consider the case of patients with mesothelioma—perhaps we might hear also from my noble friend Lord Alton on that issue later—a disease that develops rapidly and which is normally fatal in a period of less than 12 months? Is it not probable that a patient who suddenly develops mesothelioma will not have been seen by a doctor for the period that the noble Lord requests?

[Lord Carlile of Berriew]

My noble friend, for whom I have the utmost admiration and with whom I have worked on many issues, I am afraid misses the point of what I am saying. I know the work that the noble Lord, Lord Alton, who was referred to, has done on mesothelioma. I absolutely applaud that work and I will give way to him in just a second when I have finished this paragraph. What I have in mind is that in a situation like that there will be not only the specialist who may be treating an issue that has arisen recently but a general practitioner who has had that patient on their books for a considerable time, who will have records that they can look at which give them that knowledge, and who will have seen the patient in the past. What I am seeking is exactly the combination between a licensed medical practitioner—I accept that they should be licensed—who has had some experience of dealing with the patient and a specialist who may be treating the symptoms of the particular illness.

[Lord Alton of Liverpool]

The noble Lord has entirely answered the remark of the noble Lord, Lord Avebury, about mesothelioma. It is indeed predicted that some 60,000 more British people will die of that terrible disease over the next 20 to 30 years. However, the point is that they have general practitioners who care for them, and of course they have specialists who they then go to see as well. In many ways, it reinforces the noble Lord’s point—that having two doctors to examine a patient and be with them—to go through the gateway, as he put it earlier—is the right thing to do, as expressed in the amendment.

[Lord Carlile of Berriew]

I am grateful to the noble Lord, Lord Alton. I see that I have spoken for 12 minutes and want to bring my remarks to a close.

[Lord Pannick]

My Lords—

[Lord Carlile of Berriew]

Well, I would bring my remarks to a close, but my admiration for the noble Lord who has just stood up is almost unallayed, and I shall therefore give way.

[Lord Pannick]

I am grateful. I just want to ask for clarification. The noble Lord’s Amendment 13, as I understand it, would specify the identity of the doctors who may make the relevant declaration for Clause 2 purposes. However, what if those doctors, for whatever reason, are opposed to the Bill, or Act of Parliament, and do not wish to participate? Should the patient then be prevented from taking advantage of this legislation?

[Lord Carlile of Berriew]

Uncharacteristically, the noble Lord makes an entirely false point. The first response is that my amendment does not specify any doctor. The second response is that for those who are registered with general practitioners—I guess, the vast majority of the population—there are almost no single-handed practitioners left in this country. Therefore, within the group of general practitioners with whom the patient is registered—the right word is “registered”—for this purpose, there will be a choice of doctors. In any event, the noble Lord knows well that it is intended that there should be a conscience clause placed in this legislation, and there will be doctors who will simply, out of conscience, not certify that patients have the diagnosis required for the gateway.

[Lord Warner]

My Lords—

[Lord Carlile of Berriew]

No, I am not going to give way to the noble Lord; he can speak in a moment. I do not mean to be discourteous, but I know that he is well able to make his own points, and he will be able to make them in as contentious a way as he wishes, and as is sometimes habitual.

[Lord Warner]

My Lords—

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[Lord Carlile of Berriew]

I am not giving way to the noble Lord, I am afraid—not on this occasion. He has opportunity to speak and I have now been on my feet for 15 minutes. In closing, my suggestion to your Lordships is that if we are to have this legislation and if the system is to be safe, we must have one in which the gateway is a strong gateway and not merely a flimsy wicket. I beg to move.

Amendment 13A (to Amendment 13)

Moved by

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[Lord Hunt of Kings Heath]

My Lords, like the Government, the Opposition are not expressing a view on the Bill, and we have a free vote on this side of the House. I ask the Minister to help me with an interpretation of the meaning of Amendment 13, particularly in relation to the meaning of the provision that one of the registered medical practitioners has to have had the person registered with them for at least six months. Does he take that to mean that a patient has to be registered with a general practitioner for the provisions of the Bill to apply? I am assuming that when patients are under the treatment of other doctors, such as hospital doctors, they are not registered with them. This is important. If I am right—and I am expressing no view on the merits of the amendment—it would be helpful to the Committee to know from the noble Lord, Lord Carlile, what would happen in circumstances where, for reasons which have been set out by other noble Lords, a person is not registered or has been removed, sometimes forcibly removed, from the list by the GP under the arrangements that apply. It would be helpful if he could clear up that point.

[Lord Carlile of Berriew]

I am happy to clear it up. My understanding—and I am happy to be corrected by the Minister if I am wrong—is that if I am nominally registered with Dr A, who is in a practice with Drs B, C and D, and I go for treatment and am seen and treated by Dr D, I am being treated by a doctor with whom I am registered. That is because my registration with a doctor in a practice includes registration and treatment by any other doctor in that practice.

[Lord Hunt of Kings Heath]

That is a very helpful response. Can the noble Lord explain the circumstances in which a patient is not so registered? At any one time there are thousands of patients who are not registered.

[Lord Carlile of Berriew]

If a patient is not registered, they are not registered. If a patient goes as a temporary resident—as I think the term used to be; I am not sure if it still is—to see a particular doctor, a general practitioner, they are then registered for the period of the temporary residence, which from memory is, or at least used to be, one month, and which may be renewable for the purposes of that treatment.

To deal with the broader aspects of the noble Lord’s question it might be worth making the further point, while I am on my feet, that it is very difficult to imagine that a patient would be in the situation described in the Bill but had not been treated for at least six months by a practitioner, such as the practitioner who was treating their cancer. That is the general experience that people have.

[Lord Faulks]

My Lords, I do not have anything to add on that particular point.

This has been an excellent debate which has gone to the heart of some of the most difficult parts of the Bill. Why is six months the right period? Of course, we have heard plenty of informed opinion about how difficult it is to make a prognosis of any accuracy. In Amendment 21, a period of six weeks is suggested as a better period. It may be that that enables a clearer prognosis to be given, but it seems extremely short for the various practicalities and safeguards to give the Bill any real meaning. Inevitably, six months is something of a compromise; the question is whether it is a satisfactory compromise. It will not, of course, suit everybody.

It is something of an irony that one of the spurs behind this Bill and our debates is the Supreme Court’s decision in Nicklinson, which was concerned with the desire of two men with locked-in syndrome—an almost totally paralysing but not terminal condition—to request assistance to die. The Committee might like to be reminded that the President, the noble and learned Lord, Lord Neuberger, commenting in the judgment on the Falconer commission and the six-month period, said:

“That would not assist the applicants”.

I am sure that that is not in dispute. He went on:

“Further, I find it a somewhat unsatisfactory suggestion. Quite apart from the notorious difficulty in assessing life expectancy even for the terminally ill, there seems to me to be significantly more justification in assisting people to die if they have the prospect of living for many years a life that they regarded as valueless, miserable and often painful, than if they have only a few months left to live”.

These are very difficult questions and I look forward to hearing the answer from the noble and learned Lord.

[Lord Falconer of Thoroton]

I am again grateful for a very good debate. I agree with the noble Lord, Lord Faulks, as ever, that this goes to important issues in the debate. I accept the definition given by the noble and right reverend Lord, Lord Harries, of these issues, which go to the safeguards.

In looking at the safeguards, it is important to put into context the safeguards in the current draft of the Bill: two doctors, independent of each other, certifying that the patient has a terminal illness which they reasonably expect will end their life within the next six months; the two doctors, independent of each other, certifying that the person has made a voluntary decision, that they have the capacity to make that decision and that it is their firm and settled intention that they wish to take their own life in those circumstances; and that decision is not to be given effect without the consent of the Family Division of the High Court of Justice. Those are the safeguards.

Let us look at the proposals in the light of those existing safeguards. First, the noble Lord, Lord Carlile, proposes, in effect, that a person must have as one of the doctors a general practitioner with whom he or she has been registered for the last six months—I understand that registration is a concept that only has relevance to a general practitioner. That proposal, as the noble Baroness, Lady Brinton, has pointed out, appears not to deal with people in the following circumstances: somebody who, for example, moves to live near their relatives, then gets ill and is not registered for six months; somebody whose general practice, for example one run by a sole practitioner, packs up; or somebody who, for example, has a general practitioner who has a conscientious objection to the use of the provisions of the Bill.

If Parliament were to pass a Bill giving people the right to an assisted death, I venture to suggest that it would be a very odd conclusion that your ability to access that right would depend on the adventitious circumstance of whether, for example, you had moved one month before to be near your son and daughter, as my own stepmother did. That does not seem a sensible basis. However, a very powerful thread in this—which has been mentioned in particular by the noble Lords, Lord Cormack and Lord Empey—is the idea of a doctor who does not, as it were, properly consider the merits of an individual case but is, as suggested by the noble Lord, Lord Empey, available for hire. That is something that I would wish to avoid as much as possible. I venture to suggest that there may be three ways to deal with it.

First, I would expect the medical bodies to produce guidance. That can be given effect to, because a High Court judge would have to be satisfied that an appropriate process had been gone through. In addition to that, I note that, according to Clause 3(7), the independent doctor has to be “suitably qualified” in that he,

“holds such qualification or has such experience in respect of the diagnosis and management of terminal illness as the Secretary of State may specify in regulations”.

I would anticipate that the Secretary of State would be able to make in regulations provisions that make it clear that the independent doctor could not be the sort of doctor that the noble Lords, Lord Cormack and Lord Empey, and others referred to. If there are better ways of dealing with the doctor for hire situation, I am very willing to hear and discuss them and bring them forward at the next stage, but I am absolutely clear that the way in which the noble Lord, Lord Carlile, is suggesting it be dealt with is unworkable and unfair and cuts at the heart of the Bill.

[Lord Carlile of Berriew]

I have a serious question for the noble and learned Lord, which I am sure he will answer seriously. The thrust of what I am saying in my amendment, with my noble colleagues who have signed it, is that the gateway that is provided in Clause 2 should be subject to two doctors—doctors who can be shown to have some considerable knowledge of the person’s case. Is he willing to accept that principle?

[Lord Falconer of Thoroton]

I do not accept it in the way that the noble Lord has formulated it. I say that there should be two doctors who have properly, on good evidence, considered the case. It may well be that neither of those doctors has been engaged in the long-term or even short-term care of the person. But I would be satisfied with the gateway involving two doctors who have gone through a proper and rigorous process, and I disagree with the noble Lord when he says that they have to have known the person for six months. Indeed, I do not think he is even saying that because registration over a six-month period would not necessarily involve any contact whatever with the general practitioner.

[Lord Carlile of Berriew]

I am grateful to the noble and learned Lord, who has made a helpful response, up to a point. If the Bill were to go further, would he be prepared to enter into discussions on the clear basis that Clause 2 would have to be amended to ensure, first, that there were two doctors involved in that gateway—whatever the gateway is, because we are going to consider another group shortly that is relevant—and, secondly, that it should be shown that at least one of those doctors has had detailed past consideration of the patient’s case? It seems to me that that sort of measure is the only way of ensuring that we do not have a Shipman-type situation.

[Lord Falconer of Thoroton]

The first point about the two doctors is dealt with in Clause 3, because the second doctor has to certify that he is content. The noble Lord is getting frightfully agitated. If he looks at Clause 3, he will see that it requires certification by a second, independent doctor.

Secondly, the noble Lord asked whether I would enter into discussions in relation to putting in the Bill that one of the doctors has had to be involved in the care of the patient. No, I would not because I think it is satisfactorily dealt with in the Bill as it stands, for the reasons I have indicated. I will answer the noble Lord, Lord Jopling, first, and then go to the noble Lord, Lord Maginnis.

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[Lord Carlile of Berriew]

My Lords—

[Baroness Masham of Ilton]

Can the noble and learned Lord say if he thinks that pressure might be put on some vulnerable people from family members who want to save money?

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Amendment 13A withdrawn.

[Lord Carlile of Berriew]

My Lords, perhaps the Minister or the Chief Whip will correct me if I am wrong, but I understand that the position is that I should now wind up on my amendment after the noble Baroness, Lady Finlay, has dealt with her amendment to my amendment. I apologise to the noble Baroness, Lady Masham; I simply did not see her trying to intervene. I did not intend to be discourteous.

This debate has taken—it just disappeared from the screen—something like two and three-quarter hours, which is a clear indication of the importance of the issues we have been discussing in this group of amendments. I express my gratitude to noble Lords who have taken part, including of course to the noble and learned Lord, Lord Falconer, who has responded to this debate and intervened at various times in a helpful and constructive way. He suggested at one moment that I was agitated. Agitated—no; frustrated—yes. I will explain my frustration.

The noble and learned Lord, as far I can see throughout the latter half of this debate, has addressed Clause 3. The noble Baroness, Lady O’Loan, who is a distinguished and talented lawyer, saw straight through that and made it clear that we are dealing with Clause 2. That clause is about the gateway. Clause 3 is about the certification. There is a very serious point of principle about the standards that there should be at the gateway. I make no apology for re-emphasising that it is my view—otherwise I and others would not have tabled these amendments—that the gateway to this whole process must have medical, intellectual, empirical and objective integrity. None of those words are tautologies. It is the sum of them that we need for this gateway.

I do not know how many of your Lordships have read Dame Janet Smith’s three reports on the Shipman case. It was one of the biggest compendious inquiries that there has ever been. This issue was not really adequately addressed, in my respectful view, in this debate. In a quiet and beautiful valley in the same part of Lancashire and Yorkshire that I was dealing with earlier—in fact, in Todmorden, which is just over the border, in that county that Lancastrians rarely name—Dr Shipman probably killed a couple of hundred people. He was regarded as a kindly, gentle general practitioner to whom you gave a cup of tea and whom you could invite into your house with confidence. I want to be sure—and I know that others in this House want to be sure—that the gateway is safeguarded against people like Dr Shipman, for the reasons illustrated so well in her reports by Dame Janet Smith.

Furthermore, I reject the arguments that have been mentioned that there are real, practical difficulties with this amendment. There may be a few cases—and when we have dealt with the principle, we can look at the detail—in which people move away either from the general practitioner’s practice that has been dealing with them or from the specialist who has been treating the illness that has been determined as terminal. However, in my view those cases are going to be very few in number, far fewer than has been suggested by some of your Lordships, and that should not be an inhibition at this stage to the establishment of a clear safeguard and principle of safety.

The point was made by the noble and right reverend Lord, Lord Harries, that we are talking here about safety. We should hearken very carefully to the comments made by the noble Baroness, Lady Campbell of Surbiton, in her first intervention. She happens to represent in an informal way in our House that very important constituency of disabled people. She has told your Lordships that many disabled people outside this House do not have reassurance that this Bill provides in its gateway sufficient safeguards. In itself, that seems to be a sufficient reason to determine whether we wish to have the principle in this amendment. Furthermore the noble Baroness, Lady Grey-Thompson, and indeed the noble Lord, Lord McColl, highlighted the fact that the Royal College of Pathologists has shown in many cases that the cause of death given was just plain wrong. That shows how important it is to have robust safeguards.

We had some references to forms that I must admit I am fortunate enough never to have read, relating to benefit rules. To me, referring to those forms is a complete absurdity in the context of this debate. Those forms are about whether people are going to be paid sums of money by the state for their maintenance. That is no doubt an important issue, but it pales into insignificance on the issue of principle that relates to one person helping another person to commit suicide with a huge and lethal dose of barbiturates.

I could make many more comments, but I note that it is now 2.50 pm. In my judgment, there is a real principle and there are a lot of people waiting for your Lordships’ determination of that principle. To me it is as simple as this: do we want the gateway to be safe or are we prepared to take risks with people’s lives? With that in mind, I believe that the opinion of the House should be tested.