Assisted Dying Bill [HL]
Lord Falconer of Thoroton Excerpts(10 years, 1 month ago)
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Lord Newby (LD)
My Lords, it may be for the convenience of the House if I highlight the estimated rising time of 5 pm that is advertised in this morning’s edition of today’s list. Noble Lords will be aware that it is a firm convention that the House normally rises by about 3pm on Fridays but in view of the level of interest in this Bill, as reflected in the volume of amendments tabled, we anticipate that the House may wish to sit a little beyond 3 pm on this occasion. As ever, progress on the Bill of the noble and learned Lord, Lord Falconer, and our rising time will ultimately be in the hands of the House.
Lord Falconer of Thoroton (Lab)
My Lords, I express my gratitude to everybody who has contributed to this short debate. It has been an excellent debate. I completely agree with what the noble Lord, Lord Winston, said: there should be a proper and full debate, because the sorts of decisions that this House has got to make are extremely grave.
I think that the issues in this short debate can be divided into effectively two: should we have any court-driven process to give greater protection; and if we should, what should that court-driven process be? The noble Baroness, Lady Wheatcroft, put most clearly the view that there should not be any court-driven process because it might deprive some people of the opportunity to use the Bill. The fear of going to court, the expense of going to court and how they feel at the time might well be a barrier. I am very conscious of that argument—from time to time, it has been high in the mind of many people—but my own view, having heard the debate at Second Reading, having heard the debate here and having spoken widely to people who might be involved in the decision, is that what would give much greater confidence regarding the Bill would be some sort of judicial process that raised the minimum barrier to people using the Bill but provided protection.
In the course of this debate, people have sought to say, “Well, it’s got to be the judges and not the doctors”. I think that it has got to be both, because you cannot even get to the judge unless two doctors have indicated that the person is terminally ill and, as far as they are concerned, the person has a firm and settled view to do it. However, I do not think that one can leave it to doctors alone, in particular to form two views: first, on whether it is the voluntary, clear, settled and informed wish that somebody wishes to end their own life; and, secondly, whether they have the capacity. I have been worried about whether the courts could deal with this quickly enough, but I have looked quite deeply into that. I am very influenced by points of the sort that the noble Lord, Lord Ribeiro, made. I think he will agree that the blood transfusion cases to which he referred are inevitably incredibly urgent, and the court could deal with them. The noble Lord, Lord Patel, referred me, not in the debate but separately, to the emergency caesarean section cases. Again, they are urgent. The noble and learned Baroness, Lady Butler-Sloss, who has experience in this matter, spoke very persuasively of the speed with which the courts can deal with such cases, and the conjoined twins case was done very quickly.
I am worried about the costs issues. The noble Lord, Lord Faulks, gave some reassurance by referring to the exceptional funding. I cannot imagine a more grave decision than one such as this, and I hope that well meaning people in the Government would make sure that it applied to it.
In principle, therefore, I think that judicial process, although it may deter some people, will ultimately give greater protection. Which of the two options should one choose? Under the Lord Pannick option, if I may call it that, one could get the prescription,
“only if the High Court … by order, confirms that it is satisfied that the person … has a voluntary, clear, settled and informed wish to end his or her own life”.
That means that the High Court will have to decide whether the person has voluntarily decided to do this, which means that there is no coercion. In addition, the court has to be satisfied that the person has the capacity to make the decision. So it will be a primary decision for the courts.
In addition to those requirements, the amendment in the name of the noble Lord, Lord Carlile, says that the court can allow this to happen only if it is satisfied that the person is suffering what is the equivalent of “torture”—that would satisfy Article 3—and that not to allow it would be a breach of their Article 8 rights. I respectfully submit that those are very high hurdles and are utterly inappropriate to a Bill that basically says, “Your free will should determine it”, but I completely adopt what the noble Lord, Lord Reid, said about free will, properly examined, as being right.
This is a very difficult issue and the main one that we have got to decide today. I have heard what the noble Lords, Lord Phillips and Lord Campbell-Savours, said. They asked whether we could find an alternative, perhaps the magistrates or a committee of well meaning people in the community. Honestly, those ideas sound great, but they just will not work. I think that you need the highest-quality judges to decide these issues, and I do not think that the proposals being made there are really sensible.
People have said, “Let us not have votes today”. I think that we should resolve this issue today. We have had a very full debate. It is a matter for the noble Lord, Lord Pannick, whether he wishes to divide the House, but I am strongly of the view that we have debated this long enough. We have debated it very fully today, and very fully at Second Reading. My position is that I accept the arguments made, that there needs to be some degree of additional oversight. I believe that the proposal made by the noble Lord, Lord Pannick, is the right one, and I think that the time has come for this House to make up its mind on this very important issue.
Lord Pannick
My Lords, it has been a valuable and informed debate on the most profound moral issues. Like the noble and learned Lord, Lord Falconer of Thoroton, I of course respect what the noble Baroness, Lady Wheatcroft, says—that people who wish to end their life should not be impeded by a legal procedure. However, I think that the judicial safeguards, as so many of your Lordships have said today, are essential to protecting vulnerable people, which was one of the main concerns expressed at Second Reading. A judicial process will also bring home to the individual seeking assistance to end their life the gravity of the decision they are taking. A judicial process will also assist the doctor, as the noble Lord, Lord Ribeiro, pointed out. The noble Lord, Lord Tebbit, in his moving speech—
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.
Lord Faulks
My Lords, it is a fundamental principle of the Bill before us that a person seeking assistance to end his or her own life should have the capacity to make such a profound decision. That is at the centre of the Bill and why it has taken up so much time—quite appropriately—in the course of this debate. Some of the amendments in this group seek to include capacity among the eligibility criteria in Clause 1. Noble Lords may see some merit in that approach, albeit that the issue of capacity is addressed in Clause 3.
It is clear, however, that your Lordships are concerned to ensure that sufficient safeguards are in place properly to assess a person’s capacity to make these very difficult decisions. It is of course right, as has been observed during this debate, that capacity can vary over a period of time and that assessment can be complicated where a person has both a physical and a mental illness. We have heard in particular how depression can be both difficult to diagnose and can fluctuate. Therefore, several assessments over a period of time may be necessary adequately to assess capacity. That leaves aside the question of a change of mind, on which certain noble Lords were somewhat at cross-purposes. However, it nevertheless remains an important issue, the answer to which seemed to be given, I respectfully suggest, by the noble and learned Lord, Lord Mackay, which is that the reversibility of the decision is covered by Clause 4(2)(c).
On the question of mental capacity and the relationship between the Mental Capacity Act and the Bill, my noble friend Lord Swinfen correctly reminded us that the Mental Capacity Act presumes capacity. However, that Act emphasises that capacity is issue-specific. As I understand it, the purpose of the Bill is to identify the particular issue in order for it to be determined whether the individual has the capacity to make that particular decision. What we are asking here is: are there adequate safeguards to enable that decision and the capacity to make it to be adequately assessed?
I will of course consider the point made by the noble Lord, Lord Hunt, about trying to give further guidance. However, at the moment I am not convinced that there is any tension between the Mental Capacity Act and what the Bill does. Whether the House generally considers that the safeguards are adequate is a different matter and one on which there can reasonably be debate.
However, it is clear that there are differences of view about who should carry out the assessment, how many people should do it and whether there needs to be input by more than one person across a range of professions. Psychiatrists, of course, have been identified as key in this, but social workers are also experienced in assessing whether coercion or duress is being brought to bear. Increasingly, they are being asked to carry out capacity assessments for the Court of Protection, and they also play a leading role in safeguarding a person who may be at risk of harm from family or friends. The noble Baroness, Lady Hollins, was right to emphasise the importance of an assessment of the absence of mental disorder being critical when considering capacity. Your Lordships will have to reflect on whether there is a need for specialist assessment of capacity beyond that being carried out by the attending doctor and the independent doctor and, if so, what the requirements should be.
Finally, your Lordships may think that the noble Lord, Lord Griffiths, was right when speaking not altogether flippantly of the capacity of decision-makers to remind us that there is fallibility in experts just as there is fallibility in judges.
Lord Falconer of Thoroton
I am obliged to everyone who has taken part in this important debate. Capacity is central to the Bill. May I indicate how the Bill operates, so that we can then address the question of whether the safeguards are sufficient? I completely agree with the analysis given by the noble Lord, Lord Faulks, as to what the question for us is.
What the Bill requires before the prescription can be given is that the attending doctor and the independent doctor have separately examined the person and the person’s medical records and each, acting independently, must be,
“satisfied that the person … has the capacity to make the decision to end their own life”.
In addition, as a result of Amendment 4, which was made this morning, a justice of the High Court of Justice sitting in the Family Division must confirm that he or she is satisfied that the person has the capacity to make the decision to end his or her own life. Capacity is defined by reference to the Mental Capacity Act, in Clause 12. The noble Lord, Lord Faulks, is right in saying that that gives rise to no tension; how it operates is that, in considering whether the individual has capacity, the doctors and then the court ask themselves whether that individual has a sufficient degree of understanding and judgment to take this obviously very momentous decision. That means an understanding of what the decision is and what its consequences are. That is how the law defines capacity; it is a matter to be considered on a case-by-case basis.
Are the safeguards sufficient? The amendments identify a number of possibilities. First, I take the amendments proposed by the noble Baroness, Lady Hollins. She suggests that there must be a psychiatric assessment in every single case. That should be so, she says, even if the two doctors are satisfied and the judge is satisfied. Then there is the Butler-Sloss/Colville amendment, to call it so colloquially, which says that only when you are not sure and there are doubts do you make the assessment. The Murphy amendment also says that only if you have doubts should you have a psychiatric assessment.
My own view on this, although I need to consider it very carefully, is that if you have any doubts at all you could not be satisfied, whether you were the doctors or the court. In those circumstances, you might think that the case was much too doubtful and stop it straightaway, or you might have doubts because you do not know and are not qualified enough, so you should refer it to a psychiatrist. Like the noble and learned Baroness, Lady Butler-Sloss, the noble Viscount, Lord Colville of Culross, and the noble Baroness, Lady Murphy, I am not inclined to say that you have to get a psychiatric assessment in every single case. In my judgment, there will be cases where it is clear that there is no psychiatric element involved and it is the right thing to do because of the particular circumstances —and the idea that someone has to get a psychiatric assessment may look, on the facts of the case, wholly inappropriate.
My inclination is to consider the amendment proposed by the noble Baroness, Lady Murphy, as the right one. I also need to consider whether one needs to put in the Bill the sort of process that I have indicated, which reflects to some extent the approach of the noble and learned Baroness, Lady Butler-Sloss, and the noble Viscount, Lord Colville. On the basis of the debate that we have had, I think that is the right way to go but I will reflect on what has been said and consider the extent to which this needs to be in the Bill.
I ask noble Lords to remember that, subsequent to their tabling their amendments, the Pannick amendment, if I may call it that, has come in, so a judge will consider this issue. He or she will consider not just whether the right process has been gone through but will have to be satisfied—it is a primary question of fact for the judge—that the person applying to get the prescription has the capacity to make the decision, so you have that final safeguard. If the judge is not satisfied or thinks that a psychiatrist should be involved, there is the protection. I suspect that we should adopt something along the lines of the Butler-Sloss/Murphy approach. The question asked by the noble Lord, Lord Mawhinney, was answered by the noble and learned Lord, Lord Mackay of Clashfern. If the noble and learned Lord says what my Bill means, I accept his comments readily and enthusiastically.
The noble Lord, Lord Carlile, drew our attention to proposed new paragraphs (a) and (d) of his Amendment 65. As I understand proposed new paragraph (a), you cannot be satisfied that the person has capacity if he or she is,
“suffering from any impairment of, or disturbance in, the functioning of the mind or brain … which might cloud or impair his or her judgement”.
Again, I think that is going too far. What happens if someone has a brain tumour that might impair their judgment but the doctors are satisfied that that person’s decision to take their own life is one that they have reached completely aware of all the circumstances? To take another example, suppose someone is depressed because they are going to die imminently but the doctors and the judge are satisfied that, although the person is depressed, which might be an appropriate response to what is happening, they are absolutely clear that that is what they want to do. Therefore, I think that the amendment goes too far. Proposed new paragraph (d) of the amendment states that the capacity of an applicant,
“is not the subject of influence by, or a sense of obligation or duty to, others”.
With respect, I do not think that comes under “capacity” at all because capacity is about whether someone can make a judgment. A person can be completely able to make the judgment and conclude that they hate being dependent on other people. You might think that that is inappropriate and be guided by what the noble Lord, Lord Deben, says, but you certainly have the capacity to do it, so, although we should consider this under other headings, I honestly do not think that is a capacity issue.
The noble and learned Baroness, Lady Butler-Sloss, indicated three other points. First, she did not like the word “commensurate”. I have not used that word; it was the noble Lord, Lord Glenarthur—take it up with him. Secondly, she was keen—in my view, rightly—that the word “satisfied” should be used, as it is in her amendment. The requirement for the two doctors is that they must be “satisfied”. The requirement in the amendment of the noble Lord, Lord Pannick, is that the judge must be satisfied, so I agree with her and I think that that point has been met. Her third requirement was that of training. Under the Bill, the second doctor has to be an independent doctor who is,
“suitably qualified if that doctor 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 am sympathetic to the noble and learned Baroness’s point and I think that it would be appropriate for certain training requirements to be met before you can be an independent doctor in this context. Therefore, I hope that I have dealt with her point.
I have dealt with Amendment 54 in the name of the noble Baroness, Lady Murphy. As regards Amendments 71 and 151, the noble Baroness, Lady Hollins, made a point that I had not seen reflected in her amendments but I am sure that is my fault—that is, what is the position of somebody who has been sectioned under the Mental Health Act 1983? I have assumed that they would not have capacity. It is not specifically raised as I read any of her amendments. However, I will need to consider that important point. My immediate assumption is that, if you are sectioned, you could not possibly have the capacity to make this decision but we need to look at the position in relation to that.
I have dealt with all the specific points made on the amendments. The debate was fascinating, moving and gripping. One of the great temptations in these debates is to veer off from the amendment, because we are all so gripped by this subject, and go into issues that are slightly off piste. I know it is done with the best motives but I am keen that the Committee should give everyone’s amendments a proper shot. I am trying to be disciplined. I ask very respectfully, because the amendments are fascinating, can we try to focus a bit more on the amendments?
Lord Mawhinney
My Lords, while reserving the right to return to this subject on Report, for now I beg leave to withdraw my amendment.
Baroness Finlay of Llandaff
My Lords, the noble Baroness, Lady O’Cathain, raised a question that has exposed drafting flaws in the amendment, but it actually makes a very important point. I say that based on my own experience of teaching junior doctors, particularly in the Netherlands, where they would frequently say to me that they were under pressure from families for a person to have euthanasia or assisted suicide. The requests were not coming from the patients themselves.
The other situation that we really need to be aware of, as has already been alluded to, is the vulnerability of patients to suggestions from their clinicians. I recall going on a house call with a general practitioner. The patient, who had lung cancer, was breathless and finding life difficult, and wanted to start the process of talking about euthanasia. I listened for a time but noticed that the patient was very wheezy. As the consultation went on—and I could understand a fair amount of it—I said, “Has she had an inhaler for her wheeziness?”. The conversation had gone so strongly down the route of processing her euthanasia request that the GP turned to me and said, “I had not thought of it”. We then had a discussion about how if she was wheezy it was worth trying, and the lady then said, “My grandson has an inhaler and he hates it”. I said, “Perhaps if you have one and he can teach you how to use it, it may help him adapt”. Her reply was, “Oh, at least I can be of some use again”. The request finished; we did not continue with it, but she got an inhaler to try, exactly the same as her grandson had, with the explicit request that she got him to teach her.
I put that in as an example of just how vulnerable people are to suggestion and how easy it is for a consultation to steer down one road and in that process inadvertently forget the other therapeutic options that might be open, might need to be explored and might need a little bit of thinking outside the box.
Lord Falconer of Thoroton
My Lords, perhaps I might I try to short-circuit this. I am broadly in favour of having something in the Bill that says, “You should not be making suggestions”. My anxiety is that I do not want to end up in a situation where there is a fine debate in court as to who first suggested it. It may be that somebody would say, “Can anything be done? Can this be brought to an end?”, and the doctors would say, “There are these options”. Would that be in breach? I do not know and I need to think carefully about the drafting in relation to this to avoid that sort of fine, purposeless discussion in court.
Baroness Grey-Thompson
My Lords, a doctor very explicitly suggesting to somebody that they end their life is one thing. But for me a much greater concern, which has been debated quite a lot already, is about the gentle suggestion that people should consider ending their lives—the arm around the shoulder. I am sitting in your Lordships’ Chamber only because many hundreds of thousands of pounds of NHS money have been spent on putting me back together. I have had some amazing doctors with a dreadful bedside manner, and I have had some doctors with a great bedside manner who have performed procedures that I did not ask for. It was recently reported that a young man, Mik Scarlet, turned down a certain procedure several times. When he was on the operating table, the surgeon completely ignored his wishes and carried out the procedure anyway, and it had to be reversed. He is in a better position now than he was previously. It is a very long and complicated story, which is detailed on the Huffington Post.
For me, this is about the constant drip-drip of “You’re not worth it”. I am a very resilient person. If I got upset every time somebody said to me, “I wouldn’t want to be like you”, I would be depressed. Somebody said to me recently, “Well, I wouldn’t want to be incontinent. That’s my worst thing in life”. I am technically incontinent. If it was not for self-catheterisation, I would probably be dead, because I would have pressure sores; I would not exist. I was having a debate in Central Lobby with somebody who strongly supported my view on where we should go with the Bill. He looked at me and sort of waved at the wheelchair and said, “Well, you must have considered killing yourself hundreds of times”. No, I have not, actually, and I think that it was a bit of a surprise to him. It is that sort of tone, where “You’re brave. You’re marvellous”. People do not realise that they are being demeaning. I think that they genuinely think that they are being empathetic, sympathetic and kind, but, actually, you are constantly being knocked down and told that you have no value and no worth. That is what is of much greater concern to me.
The noble Lord, Lord McColl, mentioned Oregon. In 1994, the Oregon medical assistance programme cut funding to 167 out of 700 health services. Four years later, assisted suicide started being referred to as a “treatment”. On the back of that, funding was cut to 150 services for disabled people. They started limiting funded doses of powerful pain medication and put barriers in the way of funding for antidepressants. Thank goodness we do not have an insurance system like the one they have in the United States. I would be dead because my parents could not afford to keep me alive. For me, the big issue is not the doctor saying that your life is not worth living; it is the arm around the shoulder. It is that constantly being told, “You’d be better off dead”. That is what disabled people face every single day. Disability hate crime figures are the worst they have ever been in 10 years of reporting. It is constant. There is not a group of disabled people and a group of terminally ill people; there is a huge crossover.
I am sure that many people have noticed that my noble friend Lady Campbell of Surbiton is not here today. She has a chest infection. She is watching at home on her ventilator. We all know what a chest infection does for her prognosis. It immediately switches her from being okay to fitting in with the category of having less than six months to live. That is not a situation that I am very comfortable with.
Lord Mackay of Clashfern
I wonder whether the noble and learned Lord, Lord Falconer, was referring to the first part as well as the second part of the amendment, although he spoke mainly about the second.
Lord Falconer of Thoroton
I was referring to both. Clause 1 says the applicant has to initiate it, but I want it to cover both.
The Lord Bishop of Bristol
My Lords, I may not be the only one who is a bit confused about what is happening. I stand to speak in support of Amendment 12 tabled by my noble friend Lord McColl, but I would like to address noble Lords’ attention to Amendment 77, which stands in my name. I rather hoped it might have been grouped with Amendment 85, but they stand separately grouped now. I would like to reserve the right to come back to Amendment 85 at a later occasion and I hope a later occasion will occur for that to happen.
Amendment 77 deals with something slightly different. Quite rightly, most of our debate today has focused on the decision to apply for assisted suicide and to sign the declaration. However, it is fair to say that the request for assistance with suicide involves two different and discrete decisions: first, there is the decision to apply for it, and then there is the decision to ingest fatal drugs. The Bill makes it clear that there has to be a minimum of 14 days between the application and the actual ingestion of the drugs, except in the case of somebody who is given a prognosis of a month or less and then the time lag reduces to six days.
I want to draw noble Lords’ attention to the fact that there can be quite a considerable time lag between requesting assistance and the act of having the drugs administered. I do not like to keep going back to Oregon because, quite clearly, there are some good things about the Oregon experiment. However, it does need to be said that in Oregon the range between the first request and death has been a minimum of 15 days and a maximum of 1,009 days. In Washington, there has been a range of between three weeks and 150 weeks.
Amendments 77 and 85 are an attempt to try at least to give the opportunity to the person, as they come to the moment when they will actually have the drugs administered, to return to that decision to make sure it is robust. In a sense, it asks questions about two things: the settled nature of their decision but also their continued capacity, given that there are two aspects to the decision that is going to be made. Each decision ought to be subject to some level of scrutiny. Clearly, the first one needs to be subject to a very high degree of scrutiny, but we need to give some attention as to whether the second decision also needs a degree of scrutiny.
These decisions will be made, as I say, at the very least after a 14-day interval in most cases, but some will likely occur after a much longer gap. Consequently, it is necessary to reconfirm that the conditions by which assistance was granted still apply. It is also necessary to confirm that the decision to accept assistance is free from,
“pressure, coercion or duress from others or from a sense of duty or obligation to others”,
and that there exists a level of,
“capacity commensurate with the decision”.
The actual decision to ingest a prescribed dose of lethal drugs should be subject to the same, or very near the same, scrutiny that the initial request for a prescription was.
Lord Falconer of Thoroton
My Lords, I congratulate the right reverend Prelate the Bishop of Bristol on focusing on the amendments, including one that is not even in the group—but I will happily deal with it anyway. As I understand it, he is saying in Amendment 77 that the lethal dose should be delivered only once requested by the patient. I see no difficulty with that. Perhaps I can think about the wording and come back at Report.
Amendment 85 is not in this group, but let us deal with it anyway, as the right reverend Prelate spoke to it—it is in a group of its own. I am against it because, as we discussed earlier, when I had the support of the noble and learned Lord, Lord Mackay of Clashfern, the point is dealt with by Clause 4(2)(c), which provides that the health professional has to confirm that the person has not revoked and does not wish to revoke their declaration.
Lord McColl of Dulwich
My Lords, I thank noble Lords very much for their contribution and for pointing out the errors in the drafting. I am very pleased with what the noble and learned Lord, Lord Falconer, said. I beg leave to withdraw the amendment.
Lord Faulks
My Lords, this last group has engendered a wide-ranging debate which has called for considerable mental agility on the part of the participants. They have shown themselves well able to do so. I could not attempt to summarise all the issues that have been raised, but well raised they have been, and they have given the noble and learned Lord, Lord Falconer, a great deal to consider.
I shall deal with one point only. The noble Earl, Lord Listowel, was concerned, as he always is—much to the benefit of the House—with those aged between 18 and 25, who have not been the main focus of our attention today. I can tell the Committee that the General Medical Council’s core guidance for all registered doctors on good medical practice makes clear that a doctor,
“should make sure that arrangements are made, wherever possible, to meet patients’ language and communication needs”.
This will include consideration of the age of the patient.
Lord Falconer of Thoroton
The last half hour has been a remarkably focused debate on a series of amendments. I wish to go through each of the points that have been made.
Amendment 11 in the name of the noble Lord, Lord Alton of Liverpool, seeks to insert at the end of Clause 1 that a condition of having a right to an assisted death is that someone,
“is able to administer to himself or herself a lethal dose of drugs through whatever route is normally employed for ingestion of food”.
As the noble Lord recognised, that is at odds with the terms of the Bill, which state that,
“an assisting health professional may … prepare … medicine for self-administration by that person … prepare a medical device which will enable that person to self-administer the medicine; and … assist that person to ingest or otherwise self-administer the medicine; but the decision to self-administer the medicine and the final act of doing so must be taken by the person for whom the medicine has been prescribed”.
The Bill then specifically says with reference to subsection (4) of Clause 4, which I have just read out:
“Subsection (4) does not authorise an assisting health professional to administer a medicine to another person with the intention of causing that person’s death”,
so it absolutely underlines that it has to be a final act by the patient himself.
I am against the amendment of the noble Lord, Lord Alton, as it would discriminate against weak patients who cannot easily manage medication orally, including weakened cancer patients as well as those suffering from motor neurone disease, where setting up a form of driver would be more appropriate, but leaving the patient to take the final action. Alternatively, a nasogastric tube or even an intravenous drip can be set up and still leave the patient in control of the final action. The key thing here is to make sure that the Bill underlines that it has to be the final act by the patient but gives some degree of flexibility.
Amendment 10, which was primarily referred to by the noble Lord, Lord Cavendish of Furness, and is in his name, seeks to add a condition that the request for an assisted death should be made,
“on the basis of a fully informed decision”.
The Bill currently says that the person has to make the decision,
“on an informed basis and without coercion or duress”.
The Bill also provides:
“In deciding whether to countersign a declaration under subsection (3), the attending doctor and the independent doctor must be satisfied that the person making it has been fully informed of the palliative, hospice and other care which is available to that person”.
As a result of the amendments made by the Committee, moved by the noble Lord, Lord Pannick, the Bill now states that the judge has to be satisfied that the person has,
“a voluntary, clear, settled and informed wish”.
As between the Bill and the noble Lord, Lord Cavendish, there is no dispute that the person should be informed. I would be happy to insert “fully” wherever “informed” is referred to.
The noble Lord, Lord Cavendish, also has a further amendment, Amendment 70, supported by the noble and learned Lord, Lord Mackay of Clashfern, and the noble Baroness, Lady Grey-Thompson, in which, in effect, they set out what one would expect to form part of the full information given before the decision is made. It includes what the consequences of the illness are, what palliative care and pain relief are available, and what the prognosis is in relation to the illness—considerable detail like that. I would expect all these matters to fall within the words “fully informed”, but I recognise the feelings of the noble Lords, Lord Cavendish, Lord Howard of Lympne, and the noble and learned Lord, Lord Mackay, all of which suggest support for further spelling out of the meaning of “fully informed”. Can I take that away and come back with a proposal on Report to spell that out? I should make it clear that the sorts of things referred to in Amendment 70 would have been what I would have expected to include in any event. However, I can see that the Committee would get more assurance if it were set out in the Bill.
The next group of amendments were from the noble and right reverend Lord, Lord Harries, who was keen in Clause 1 to insert a provision that the decision was being made voluntarily. I am sorry to be wearisome, but the Bill currently requires that the two doctors must be satisfied that the person,
“has a clear and settled intention to end their own life which has been reached voluntarily, on an informed basis and without coercion or duress”.
In addition, as a result of the amendments made this morning, the judge has to be satisfied that the individual,
“has a voluntary, clear, settled and informed wish to end his or her own life”.
There is therefore no doubt that the requirement for voluntariness is there at two stages already. With all respect to the noble and right reverend Lord, Lord Harries, legally it will not make much difference to add that provision elsewhere also.
However, the noble and right reverend Lord touched on the deeper issue of whether we as a House would consider a situation whereby, even though one wished to live, one decided, because one was a burden to those one loved, to go down the route of an assisted death. I would say that that was not voluntary because one wanted to live. That may be an oversimplification in many cases—there may be other cases where the situation is more complicated—but I would not be in favour of putting anything to that effect in the Bill.
Lord Harries of Pentregarth
The noble and learned Lord seems to agree with my point and speaks as though it would automatically be taken into account. Would it not be safer to have it spelled out in the Bill—that one of the marks that the decision was voluntary is that those looking into the person’s decision were assured that that person was not acting out of a sense of duress because they felt a burden?
Lord Falconer of Thoroton
My reason for not putting that in the Bill is that so many cases are much more complex than the simple case I gave, where I would not wish for there to be an assisted death—where one’s motive for wishing to have an assisted death will be a mixture of “I don’t want to be dependent on other people, I don’t want the lack of dignity, I don’t want to be a burden”, a whole mixture of motives that make clear “I do not want to go on living for the last week or month”. I am very unkeen to isolate just one factor in what is a much more complex issue than the example I gave. That is why I am against putting that in the Bill.
Lord Howarth of Newport
Will my noble and learned friend say a word or two about how he envisages that the judge or the doctors should know, ascertain and satisfy themselves that the decision has been taken voluntarily?
Lord Falconer of Thoroton
They must conduct in-depth discussions with the patient and the other doctors. The judge must call such evidence as he or she considers appropriate to be satisfied—the burden is to be “satisfied”—that the decision is voluntary. “Voluntary” means “this is what the patient wants”: he or she is not being forced into it either by coercion or by the sort of guilt that we referred to earlier. Although that will give rise to complex issues, it is not a job that is beyond judges or, indeed, some doctors.
The noble Baroness, Lady Howe of Idlicote, said that a person should have to be resident for a year immediately before the declaration is agreed. I think that is the Bill’s effect, because as it is drafted it says,
“on the day the declaration is made … has been ordinarily resident in England and Wales for not less than one year”.
The patient has to have been here for a year. However, she has a second point, which is that it should be two years rather than one. Until the noble Lord, Lord Howard, suggested it, it had not occurred to me that this was about immigration. I had thought it was about a desire to prevent tourism for this purpose, which is how the noble Baroness put it. I think it is quite difficult to judge between one year and two years. My inclination is to stick with one year, but I will take soundings to see whether two years seems right. People coming to be resident for a year before the declaration is made looks like considerable forward planning. I am not minded to accept her amendment.
The noble Earl, Lord Listowel, made a point about the 18 to 25 year-old age group. I completely agree with him that they need especial care, but this right is for anybody aged over 18. I do not think it should be taken away from them. We need to consider what should go into a code of practice to ensure that the particular needs of 18 to 25 year-olds are borne in mind.
I think that has dealt with all of the amendments that were suggested.