Assisted Dying Bill [HL]

Lord Joffe Excerpts

Friday 18th July 2014 Lords Chamber

[Lord Joffe (Lab)]

My Lords, although I have introduced four previous Bills on assisted dying to this House, there is nothing I wish to add to the powerful and comprehensive speech of my noble and learned friend in favour of a change in the law. Rather, I will focus on the evidence underpinning the case for a change in the law and the lack of evidence—I underline the word “evidence”—underpinning the concerns of opponents to such a change.

While there can be no direct evidence in the UK as assisted dying is unlawful, the experience in Oregon, upon whose legislation the Bill has been modelled, is persuasive in that over 16 years there has not been a single prosecution for abuse of that law. The evidence for this is 16 detailed annual reports by the Oregon Health Authority in relation to the Death with Dignity Act, which is the model upon which our Bill is based. Among many other matters, these reports demonstrate what has already been said: that there has been no slippery slope, with the number of assisted dying deaths after 16 years being 0.2% of total deaths, or one death in every 450; that there has been no widening whatever of the legislation; that 97% of assisted dying patients died at home; and that 90% were enrolled in hospice care.

The evidence in Washington under the dignity in dying legislation shows a similar pattern. In Switzerland, arguably the most conservative country in Europe, lawful assisted dying has existed for 60 years. The incidence of such dying is similar to that in Oregon, being between 0.3% and 0.4% of all deaths. The overwhelming majority of Swiss citizens support the law as it stands, and a recent attempt there to change it was decisively rejected.

In the light of that evidence, it is incumbent on the opponents of the Bill to explain why they believe that a law which works so well elsewhere will not work equally well in the UK and to show what evidence they have for contending this. In that regard, I respectfully suggest that repeated assertions of conjecture or strongly held personal opinions are not adequate substitutes for statutory and objective, carefully researched evidence.

The Bill’s opponents frequently raise the issue of mental capacity. The law in relation to the right of people with mental capacity to make decisions on their own lives was endorsed in a fine judgment by Dame Elizabeth Butler-Sloss, as she then was, in the 2002 case of Miss B v an NHS trust. The judgment read:

“A mentally competent patient has an absolute right to refuse to consent to medical treatment for any reason, rational or irrational, or for no reason at all, even when that decision may lead to his or her own death”.

The learned judge added the following:

“There is a serious danger, exemplified in this case, of a benevolent paternalism which does not embrace recognition of the personal autonomy of the severely disabled patient”.

It would seem that many of the caring and compassionate opponents of assisted dying are influenced by the same benevolent paternalism that was raised in opposing Miss B’s wish to end her life. It is clear that the law, if it were changed, would mean that elderly, frail and physically disabled terminally ill patients who are mentally competent would have the same right to make decisions on their lives as other terminally ill patients.

It is of course essential to seek to protect all terminally ill patients from pressure by others to end their lives. This is specifically covered by the safeguard in the Bill that requires that both assessing doctors must be satisfied that the informed decision is voluntarily made.

The Bill is not a radical innovation in UK law. It follows naturally from a development of our law which allows mentally competent patients to refuse medical treatment, where doctors can refuse to treat dying patients whom they judge they cannot help, where doctors are obliged at the request of a mentally competent patient to disconnect the patient from the life-support equipment which is keeping the patient alive, even though this will lead to the death of the patient, and where those who under the DPP guidelines assist terminally ill patients to die for compassionate reasons will not be prosecuted.

In conclusion, there is one question in the 11 years that I have been working on assisted dying which has not been answered. That question is: what answer do the opponents of this Bill propose should be given to mentally competent, terminally ill adult patients for whom palliative care is not the solution and who appeal to their loved ones for assistance to end their suffering by ending their lives?

Assisted Suicide

Lord Joffe Excerpts

Wednesday 5th March 2014 Lords Chamber

[Lord Joffe (Lab)]

My Lords, the DPP guidelines on prosecution for assisted suicide are in general the most just and compassionate that the DPP could draft in the light of the current law. That is why the law needs to be changed to prevent suffering.

In paragraph 11, the DPP draws attention to the issue of mental capacity, the law on which was carefully analysed by Dame Elizabeth Butler-Sloss—the noble and learned Baroness, Lady Butler-Sloss—in 2002 in the case of Ms B v An NHS Hospital Trust. She concluded that,

“a mentally competent patient has an absolute right to refuse to consent to treatment for any reason, rational or irrational, or for no reason at all, even where that decision may lead to his or her own death”.

The learned judge then added:

“There is a serious danger, exemplified in this case, of a benevolent paternalism which does not embrace recognition of the personal autonomy of the severely disabled patient”.

It is accordingly clear that even a patient with the most serious physical disabilities, but who has mental capacity, has the same right to make decisions about his or her life as any other terminally ill patient.

Another issue often raised by opponents of assisted dying is the well worn legal maxim that hard cases make bad law. The response of Lord Justice Denning, one of England’s most respected judges, to this maxim was:

“It is a maxim that is quite misleading. It should be deleted from our vocabulary. It comes to this: ‘Unjust decisions make good law’: whereas they do nothing of the kind. Every unjust decision is a reproach to the law or to the Judge who administers it”.

Lord Denning, in this case—Vandervell’s Trusts 1974—was talking about the use of equity to mitigate the rigours of the common law. Parliamentary intervention can and should fulfil the same role in the case of other areas of the law such as assisted dying, which needs to be changed in order to prevent unnecessary suffering and to conform with the views of society. It is for society as a whole, rather than doctors, to decide this matter through the parliamentary process.