Baroness Lawlor
Main Page: Baroness Lawlor (Conservative - Life peer)
Baroness Coffey (Con)
My Lords, I tabled Amendment 43, to which Amendments 312 and 340 are consequential, and Amendment 188A, so I will speak to those. Amendment 43 would bring in the term “demonstrably”. I appreciate that noble Lords may think that this is dancing on the head of a pin, but it is my understanding that the use of “demonstrably” is well known in legal practice, and it effectively requires evidence. I appreciate that there are other aspects of the Bill, when it was first introduced, that were set out in specific forms, but they have been replaced by a variety of regulations and other powers, so I think we just need to be clear about what that really means.
Being informed conceptually is meaningless unless we can establish that the person can demonstrate to healthcare professionals and others that they understand assisted dying, they understand the process and they are absolutely committed to this journey on which they go. The Bill currently requires that certain matters be explained and discussed, but it does not require evidence that the patient has understood them. I appreciate that one of the things about the current Clause 3 of the Bill is that the Mental Capacity Act 2005, which is at the MoJ level but is used in the NHS, requires in effect only a balance, rather than something much firmer, in terms of probabilities of understanding.
It is important to understand the impact of the lethal drugs that people are going to be given, and my noble friend referred to international examples. In Victoria in Australia, and in Oregon in the USA, there are firmer elements of how it can be demonstrably identified and verified that this decision is being made. It should also be recognised that we need to make sure that the doctors setting this out may say, “Your death is actually going to be quite straightforward. It may take longer, but it may not be as painful”. I accept that people on this journey are close to dying, but they need to understand the risks and how that comes about. We have not yet got into the detail of understanding which drugs are going to be used in this process.
One of the reasons I tabled the amendment on Montgomery compliance is that there was a significant ruling to do with liability and negligence. Back in 2015, the Supreme Court effectively made sure that a patient-centred focus became the norm. There was a more recent ruling in the case of McCulloch in 2023. In 1985 the House of Lords judges spoke about the professional basically making the decision, whereas the key ruling in the 2015 case, and the principles behind it, show that case law has helped to evolve what has ended up becoming guidance. We should be clear in this Bill about the exact approach that we want to have. I appreciate that this may seem a bit nebulous to the Minister, but I tabled it as a probing amendment.
In the case of McCulloch, the NHS basically said, “We’re more or less back to Bolam”, which was the original test. I know that the noble Baroness, Lady Freeman of Steventon, had to leave early, but this is one of her key areas of expertise; she teaches this in different places around the country, including in the NHS. One of the presentations that she shared with me shows that the director’s advisory role involves dialogue, the aim of which is to ensure that there is an understanding of the seriousness of a condition. The information provider has to be comprehensible. The doctor’s duty is therefore not fulfilled by bombarding the patient with technical information that they may not reasonably be expected to grasp, let alone by routinely just demanding a signature on a consent form.
I am trying to make sure that, instead of just relying on case law that may change, we end up being very clear about the need for a patient-centred focus and the principles on which we expect this process to happen. The other aspect, which we will get into a bit later, is that I am just trying to explore what this looks like for the person involved, at a pretty scary time of their lives, if we go down this route. I am afraid I have seen it happen too often with things such as DNR: patients are not necessarily given good advice and are told that the doctor knows best. I want to be crystal-clear that somebody who is going through a difficult moment needs to be aware of not only options but risks, and what the balance might be on whether to go with a lethal dose of certain drugs or to take a different route in order to end their life in a good way. That is why I have proposed these amendments.
Baroness Lawlor (Con)
My Lords, my Amendments 55, 246, 319, 342, 387, 453 and 513 are all about the same thing. They are designed to ensure that those contemplating assisted suicide fully understand the effects on their bodies of the drugs that they will be given and know about possible complications. As it stands, Clauses 12(2)(c)(iv) and 12(2)(d) merely require that doctors explain how the drug will kill them and that they discuss what ought to be done in the event of complications. The Bill does not require any sort of explanation about what these complications may be or how likely they are to occur.
Baroness Berridge (Con)
The obligations that have just been explained refer to medical treatment, but this is not a medical treatment. The previous comments are not accurate because the normal clinician’s responsibility is one of the things that we need clarifying. Clause 12(2)(d) refers to
“their wishes in the event of complications”,
but there is no obligation to talk about the risks of complications. Those are different things—your wishes and the risks.
Baroness Lawlor (Con)
Is it the noble Baroness’s understanding of Clause 12(2)(d) that, while there is an obligation to discuss the person’s wishes in the event of complications arising, there is no obligation to discuss exactly what those complications could be?
Baroness Finlay of Llandaff (CB)
It might be helpful to add that, in normal procedure, you would explain to a patient what the complications may be but also what you will do. This Bill does not say what you will do. That is why I pointed out that somebody who is very drowsy and beginning to wake from a huge dose of lethal drugs would not be able to self-administer a further dose. This Bill is very clear that the practitioner does not administer the fatal dose; it must be done by the person themselves. Therefore, we have a bit of a gap here, because the doctor can tell them what might happen, but it does not seem that the doctor can tell them what they will do in the event of it happening and how it would be managed.
Baroness Lawlor (Con)
Before the Minister sits down, may I simply seek a point of clarification? I note that the Government’s position was that they did not envisage any serious operational difficulties with the substance of my amendments on the physiological effects of the drugs, but they had difficulties with substituting a different form of words for “approved” because it was not consistent with the Bill. Were that consistency there, would a Government, in seeking to implement the Bill as it is, require that the rules be brought into line, as has been suggested here, with current medical practice, to discuss and to ensure that the patient is given the full assessment of what could happen and what the risks could be?
Lord Katz (Lab)
To repeat—and I hope this helps—the Government do not see any major workability concerns. Our concern is specifically with the drafting, in that it uses different language from language that already exists in the Bill. We feel there is a risk of duplicating existing requirements in Clause 12 for the assessing doctor to explain and discuss with the person what approved substance would be provided and how it would bring about death. There could be the risk of that duplication, but there are no major workability issues.
Baroness Lawlor (Con)
What would happen if they were taken to court in a medical negligence case? Let us take the example given by the noble Lord, Lord Mawson, where they had not explained graphically to someone who may not speak or understand English what could happen if there were a complication, but a graphic explanation was needed; otherwise, they might have failed medically to do their job.
Lord Falconer of Thoroton (Lab)
If they failed medically to do their job, they might be liable to a civil suit, but it is impossible to answer that question without specific facts. This Bill is placing on doctors and panels the duty to make sure that the consent to assisted dying is properly informed. If a doctor fails in that respect, you might have a situation where, for example, the thing should not have been done in the first place or was done inadequately. That might give rise to a civil suit but it does not really go to the question of whether we need to put a heavier burden, in terms of giving information, in the Bill; with respect, I think that the burden in the Bill is sufficient.