Assisted Dying Bill [HL]

Debate between Lord Carlile of Berriew and Lord Falconer of Thoroton

Friday 16th January 2015 Lords Chamber

[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.

Assisted Dying Bill [HL]

Debate between Lord Carlile of Berriew and Lord Falconer of Thoroton

Friday 7th November 2014 Lords Chamber

[Lord Faulks]

This has been another useful and well informed debate, following on from the first group. I do not think that it is necessary for me to add anything from the point of view of the Government. The noble Baroness, Lady Finlay, made a particularly helpful clarification about DNR notices. The difference between DNR and DNACPR is probably insufficiently understood and I think that the House is grateful for that clarification. One final thing I should say, in responding to what the noble Lord, Lord Davies, said about legal aid, is that nothing I said about exceptional funding, I am glad to say, was wrong, it having been reviewed. However, as yet no assessment has formally been done on availability to cover this situation. I am sure that the House will understand that.

[Lord Falconer of Thoroton]

I understood that. I do not think that the noble Lord, Lord Faulks, suggested anything to the contrary in his previous answer. We went over quite a lot of this ground in the first debate. Like the noble Lord, Lord Faulks, I agree that this has been a useful debate in a number of respects. However, the key point in the debate is the factor added by the judicial model proposed by the noble Lord, Lord Carlile. In addition to provisions required to ensure that the person has a firm and settled view and that he or she has the mental capacity, there is an additional very significant requirement—namely, that to refuse an order would amount to a breach of both Article 3 and Article 8 of the European convention.

In effect, the noble Lord, Lord Carlile, is suggesting that the judge should make a judgment about the quality of the life of the person who has applied and, in particular, whether the quality of life of the person applying in effect constitutes torture, inhuman or degrading treatment. Only when satisfied of that can the judge make an order under the proposal of the noble Lord, Lord Carlile. I totally reject that approach as being inconsistent with the essence of the Bill, which is subject to appropriate safeguards. It is not for a court to make that sort of judgment; it is for the individual. The purpose of the court’s involvement is to ensure that there has been no undue pressure and no lack of capacity in reaching that conclusion; it is most certainly not to make the sort of judgment that the noble Lord, Lord Carlile, suggests. That was my understanding from the way in which the noble Lord put his case in the first debate and it is my understanding that the House has rejected that approach.

[Lord Carlile of Berriew]

My Lords, first, I am grateful to all noble Lords who have participated in what I think has been a high-quality debate lasting something like 1 hour and 20 minutes—a debate that I suspect almost everybody in the House would agree has not been marked with any frivolity whatever.

I reject what the noble and learned Lord just said. I am not proposing that the court should make a judgment of the quality of the person’s life. That is a caricature of what I am suggesting. I, and those who support these amendments, suggest that there should be an assessment of the quality of the decision that is made by the individual, which is quite different. Yes, it should be at a high bar. We deliberately set the bar high and we do so on conscientious and ethical grounds. Of course, I acknowledge that the noble and learned Lord, too, has conscientious and ethical grounds for his viewpoint.

Those of us who lie in the bath or climb out of the shower at 7.45 in the morning are fortunate to hear the wise vignettes of the noble and right reverend Lord, Lord Harries, and the noble Lord, Lord Singh. We get our bonuses in this House, as we have enjoyed moments of real wisdom from both of them this afternoon, as we do fairly regularly on Radio 4. I am grateful to the noble Lords, Lord Empey and Lord Alton, for highlighting the issue about introducing some independence into this decision-making process.

Indeed, I have in my hand a press release issued yesterday by the senior public affairs adviser, David Knowles, acting on behalf of the British Medical Association, of which the noble Baroness, Lady Finlay, is president. As I understand it, the BMA represents all doctors in one form or another. It states:

“Legalised assisted dying could have a profound and detrimental effect on the doctor-patient relationship, even where doctors’ involvement is limited to assessment, verification, or prescribing”.

That was only one of its grounds. The noble Lords, Lord Empey and Lord Alton, answered that point. The noble and gallant Lord, Lord Stirrup, added to that observation by saying that, if we were to introduce the amendments, we might get the medical profession to participate in the process, rather than being opposed to it. In our reflections before we may have to vote at Report stage, if there is one, that point should be taken into account.