Assisted Dying Bill [HL]

Baroness Butler-Sloss Excerpts

Friday 7th November 2014 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, before we continue, may I refer noble Lords to the Companion, which suggests that, in debates where there are no formal time limits, contributions are kept to 15 minutes?

[Baroness Butler-Sloss (CB)]

My Lords, I should like to continue on this subject of the law. I was in the Bland case in the Court of Appeal. As President of the Family Division, at one stage I tried nearly all the permanent vegetative state cases. On the assumption that this Bill is passed, it seems to me critical and essential that the court should have an input. I would prefer the version of the noble Lord, Lord Carlile, but, speaking as a former judge, I would say that the version of the noble Lord, Lord Pannick, would actually require the judge to take account of all the relevant factors. I would be astonished if the High Court did not wish to confirm that it is satisfied, and that is a high standard. The judge would have the power to require, for instance, a psychiatrist or other medical opinion, if the judge was not satisfied that the patient—we are talking about the rights of the patient—had the full capacity necessary to make this absolutely crucial decision.

As to how the case would be tried, it would likely go before a Family Division registrar. It would go before a High Court judge. In my day, I was able to try cases on the day that the problem came before the High Court and it was able to go to the Court of Appeal on the same day if it was sufficiently urgent. I would expect the President of the Family Division to treat all these cases with the utmost seriousness and would see it as crucial that they be heard as quickly as possible. It would be a matter for the Government of the day as to whether legal aid were given, but in a matter of this absolutely enormous importance as to whether somebody is entitled and has the capacity to make the decision that they wish to end their life, I would think it quite shocking if legal aid were not granted.

[Baroness Neuberger (CB)]

My Lords, I rise to speak to the amendment of the noble Lord, Lord Pannick, to which I have put my name, and to add to that of the noble Lord, Lord Carlile. I agree with almost everything that has been said but, if responsibility is given to the Family Division in some way or other, there might be reason for a ticket system, as happens in serious sex or murder cases. That way, the judges within the Family Division who are going to hear these cases very quickly will have had training in how to look at them and, where necessary, examine the medical evidence in detail. A ticket system and specific training for members of the Family Division in this area would be an improvement on simply saying that it was available to everybody. I support the amendment of the noble Lord, Lord Pannick.

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[Lord Mackay of Clashfern (Con)]

I had intended to make a short observation but the intervention came from the opposite Front Bench, so I did not find it possible to speak. I rather go with the form of the amendment proposed by the noble Lord, Lord Pannick, subject to this. It is essential in the Bill that there should be a terminal illness. That is a very important issue which requires determination before the Bill operates. The amendment tabled by the noble Lord, Lord Pannick, as far as it goes, does not actually require—if I have understood it right, and I am subject to correction like everybody else—the judge to be satisfied that the patient is suffering from a terminal illness. I think that that is a part of the definition that requires to be taken into account.

For my part, I was rather expecting that the detail of the amendment would be settled before Report. In the mean time, what we are really considering is whether, as the noble and learned Lord, Lord Falconer, said, there should be judicial intervention at all. On that point, I think that a very large proportion of the noble Lords here today are rather in favour of it. However, the precise detail of it is quite important. Therefore, I find it hard to believe that it is right that we should settle on the particular form of the amendment today.

[Baroness Butler-Sloss]

I very strongly support the noble and learned Lord, Lord Mackay of Clashfern. I actually think that the amendment tabled by the noble Lord, Lord Pannick, has a great deal to commend it, and I would have said that to him. However, the point made by the noble and learned Lord is terribly important. Who is going to be the deciding factor on the terminal illness? I believe that this is an enormously important issue for Report—and I am at the moment assuming that the Government will give us time to have Report. I refer to what was said by the noble Lord on the Front Bench. This has got to a point of such importance that I really do not think that it should be addressed at this stage.

[Lord Cormack]

What can possibly be lost by having further conversation and discussion? If the amendment is put to the vote and is carried, other amendments cannot then be discussed because a number of them will fall by the wayside. That is not going to assist our progress in having a full-ranging discussion. I would beg the noble Lord, Lord Pannick, not to press his amendment today so that discussions can take place. I make this suggestion, as I did in my speech, in a wholly constructive manner. I would beg of the noble Lord to heed that, because pre-empting other amendments is not the best way of taking this forward.

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[Baroness Butler-Sloss]

I would like to add something to what the noble Baroness, Lady Cumberlege, said. In case of permanent vegetative state, it is well known that a number of nurses are not prepared to work with those who are bringing the person’s life to an end. Therefore, it is necessary to place the patient in a permanent vegetative state from whom nutrition and hydration have been withdrawn with those who are prepared to look after that patient, who may sometimes live for a week. This is obviously a much shorter time, but if one takes 41 hours as a possibility, I suspect there will be nurses who will not be prepared to have anything to do with what is happening. That is another point that needs to be taken into account.

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[Baroness Richardson of Calow (CB)]

My Lords, on Amendment 65, on capacity, it is hard to imagine how anybody who has just been told that they have less than six months to live, and who is in such pain that they do not want to continue living, should have absolutely no impairment or disturbance of the mind. This must be part of the condition—but I am not convinced that it would necessarily cloud or impair their judgment. When a person gets close to death, it clarifies the mind rather than clouds it, and gives them much more of an incentive to make decisions that will affect them in a very real way.

On the sense of obligation or duty to others, at the risk of sounding too much like a Methodist minister, there used to be in our Methodist hymnbook a hymn which started:

“Rejoice for a brother deceased;

Our loss is his infinite gain”.

There are occasions when people, feeling not just a duty to others but a delight and a joy in leaving behind a mortal body in order to find a fullness of life—which some of us already experience—will want to do so at the moment of their death.

[Baroness Butler-Sloss]

My Lords, I will speak to Amendments 66 and 84, since I understand that I cannot speak to Amendment 9. Before I do so, I have one point about Amendment 6 of the noble Lord, Lord Mawhinney. I am not terribly happy about it. The written declaration in Amendment 5 of the noble Lord, Lord Carlile, ought to be adequate. We have to bear in mind that we are talking about people, according to the wording of the Bill, who have either six months to live or, if the noble Lord, Lord Carlile, is right, three months to live. To expect a second declaration in addition to a first, when one would expect the first declaration to have been seriously considered before it was signed, is probably a step too far and would, in my view, probably be unjust to a patient.

On Amendment 66, I need to explain to the House why on earth I am producing another amendment on capacity. There are three reasons. One is that I am not happy with the word “commensurate”. This is a highly technical point, for which I apologise, but speaking as a lawyer the Mental Capacity Act 2005 talks about capacity. Nowhere, to my knowledge, is any word attached to “capacity” to explain it. One of the most important areas of capacity is the capacity to make a will. Perhaps it is not as important as the capacity to live or die, but it is certainly of great significance to lawyers and to those who witness a will. You should not use the word “commensurate” for a will, and neither should you use it for this matter we are now discussing. However, that is a technical point.

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[Lord Tebbit]

Perhaps the noble and learned Baroness can help me with that question of capacity. There are some elements, such as depression, which come and go at various levels. A depressed person may sometimes have capacity and sometimes not. An alcoholic may not have capacity but, on the other hand, he may have it when he sobers up for a while. The same applies to a drug addict, who may or may not have capacity according to how much he has taken. I find that rather difficult to judge against the more permanent and unchanging stages of capacity and incapacity; for example, in a patient with Down’s syndrome, whose capacity would be limited but probably more or less unchanging, or somebody in the later stages of Parkinson’s disease, where that mental capacity was beginning to go but could only get worse. I am a little puzzled as to how one would make the decisions between those varying states.

[Baroness Butler-Sloss]

If I may be anecdotal, as other noble Lords have been, my mother died of multiple sclerosis in her early sixties. There was a point at which I, as a young lawyer, realised that she no longer had, in my view, the capacity to make decisions. However, that was at a very late stage of her illness.

If the doctor is not satisfied because someone is a drug addict or has been an alcoholic or has, for instance, a high degree of anorexia as a young person and is saying that they want to die, those are points at which a doctor should be saying, “I’m not quite certain whether he or she has capacity”. That is why I suggest in my amendment that, unless they are satisfied, they should pass it on to someone who has the expertise, who would then, as a psychiatrist, look at whether the person actually has the capacity. Okay, we are talking about someone with three to six months to live but, if they do not have the capacity to make this incredibly important decision, they should not be allowed to do so. That is how I would see it, in answer to the noble Lord, Lord Tebbit.

[Lord Winston]

I thank the noble and learned Baroness for giving way, but would she not agree that sometimes people who have capacity and say that they wish to die, as indeed my mother did, may then change their mind some months later, quite unexpectedly?

[Baroness Butler-Sloss]

Yes, that seems to me to present one of the problems with the Bill.

[Lord Griffiths of Burry Port (Lab)]

My Lords, may I offer something at this stage? The ground has been well worked in the past and I have here some of the hearings that took place 10 years ago, when we discussed this matter. The whole question of the psychiatrist was raised then. Again and again, in discussing competence, it is the psychiatrist who seems to be claiming that someone lacks it. Making a judgment about people near to death is very difficult. Some 25% to 40% of patients at the time of diagnosis, and a similar percentage at other times on the cancer journey, suffer from depression or despair, but those conditions can be reversed. It depends on when you take the decision. Indeed, a neurologist suggested that in some conditions the whole issue of cognitive impairment must be taken note of. For example, patients to the lay person might appear relatively normal but could have severe cognitive impairment and therefore be unable to give informed decisions in such an area.

The training is not just for the people that these provisions have in mind. Once we move the debate, as we have consistently through this day, into the hands of experts, we are removing from ourselves the recognition that the experience of death and dying belongs as much to the non-experts as it does to the experts. With great timidity, I have stood up to speak at this moment, having heard in this morning’s debate from some of the leading lawyers and medical people in the land, and from people with a long experience of public life. I wonder whether it is true, for example, that a judge is, at the end of the day, the person in whom we can deposit all our confidence.

I remember the debates in my childhood that took place around the movement towards the abolition of capital punishment. You have a judge and a jury in that case, counsel for the defence and the prosecution, due process and forensic evidence—justifiable or not. You have the whole process of the law brought to bear on one case and one person, guilty or not guilty. The reason we went forward to abolish capital punishment was because of the possibility of an error of judgment—that with all that happening we might have got it wrong. As a simple lay person, I simply want to say that in this area it is infinitely more likely that we might get it wrong. It is for that reason that I stand against this Bill: because of the high possibility of getting it wrong, even when judges and the top medical people are involved.

My life sees me alongside dying people from first news to last rites and, indeed, beyond last rites—I have dealt with the people with whom one has to deal when they feel that they have not done everything that they might have done for mum. These are unhealed wounds that pastoral people have to deal with on and on, beyond the moment of death.

To think of the autonomy of the person as if that alone constitutes where this debate centres is, in my experience, utterly wrong. Consequently, when I saw the amendment that refers to,

“capacity to make the decision”,

I wondered whether the capacity we were talking about was that which pertained to the decision-makers rather than to the person dying. This is an immensely complicated area and it seems to me that we must question these rather forensic points that are being made about the capacity of this person, that person or the other person. Death and dying are individual in every case, and sometimes a friend can do more good than an expert.