Assisted Dying Bill [HL]

Baroness O'Loan Excerpts

Friday 16th January 2015 Lords Chamber

[Baroness O’Loan (CB)]

I apologise for interrupting the noble Lord, but I just wanted to inquire: why does he think that it would cause confusion to introduce the term assisted suicide rather than assisted dying, when the actual fact is that it is assisted suicide? I just do not understand the logic. People understand suicide and dying as two separate acts.

[Lord Warner]

If we are really concerned with what the public understand, it is a bit presumptuous to assume that they have been following these debates for 10 to 12 years but have not understood what we have been talking about in terms of assisted dying. We get a lot of criticism in Westminster—

--- Later in debate ---

[Lord Mawhinney (Con)]

My Lords, as one who has signed several amendments, I will say that I did so not because of conversations with other noble Lords but because I read the Bill. The more I read, the more I was puzzled by its title. I wish that I had thought of the simile that the noble Baroness, Lady O’Neill, used when she talked about the similarity with truth in advertising. I came to the view that the Bill was about assisting suicide rather than assisted dying. I was stimulated along that thought process by two things. One was the speech of my noble friend Lord Howard at Second Reading when he talked about the work of the hospices. I have recently had some involvement with a hospice in Peterborough. The second was correspondence with doctors who work in the palliative medicine field. Both things created in my mind the vision that the noble Lord, Lord Winston, and the noble and right reverend Lord, Lord Harries of Pentregarth, gave of assisted dying being a palliative feature of making the process more comfortable for the patient.

I am just smart enough never to want to tangle on legal matters with the noble Lord, Lord Pannick. I noted the points that he read to us from the Bill in support of his contention that the Bill is perfectly clear. The second thing that caused me to come to the conclusion that I should put my name to the amendments was Clause 4—so let me read just a little bit to your Lordships. It states:

“The assisting health professional must remain with the person until the person has … self-administered the medicine and died”.

Where I come from, I guess that they would call that suicide. The noble Lord, Lord Brennan, introduced the word “euphemism”, which has been at the heart of a lot of the speeches that we have heard. It has taken the form of clarity in telling the truth. I have to say that in all honesty I do not like the euphemism attached to the wording of the Bill when it comes to this point, and I was happy to add my name to the amendments tabled by the noble Baroness.

[Baroness O’Loan (CB)]

My Lords, by convention I must apologise to the House: I was unable to attend Second Reading as I had had major surgery 10 days before. I have listened to the debates and the element of compassion is very clear in all the Members of your Lordships’ House—but compassion is not enough. The Bill is introducing a significant change that is secured by the terminology that it adopts. That is why it is so important that we support the noble Baroness, Lady O’Neill, and the other noble Lords who put their names to this amendment.

The BMA stated yesterday that skilled and compassionate palliative care with good communication and patient involvement can help many patients’ fears of death. By focusing on assisted dying as a solution to people’s anxieties about end of life care, society is having the wrong debate. If we pass the Bill, people will know that there will be circumstances in which we as a society have decided that we want people to be able to commit suicide with assistance from the medical profession. The Bill provides that people must be assisted to commit suicide in specified circumstances; it does not provide that they must be assisted to die.

I have seen close family members die of motor neurone disease and cancer. I know that they were helped as they came to death by the loving care of good doctors, professional and expert nurses and other medical professionals, and by the appropriate application of palliative care. The Bill is about people who want to take their lives being provided with the wherewithal and being enabled by the medical profession to do so, and it is right that the content of the Bill should reflect that reality. One of our duties as legislators is to try to ensure the greatest possible clarity as we make laws—and it is for that reason that I support the amendment.

[Lord Gordon of Strathblane (Lab)]

I join the noble Baroness in arguing for greater clarity on this, and I am genuinely surprised at the level of opposition to what seems to me to be a perfectly reasonable, understated amendment. As the noble Lord, Lord Cormack, pointed out earlier, this does not at all affect the principles behind the Bill. There are still powerful arguments for allowing assisted suicide—and, although I am opposed to it, I recognise them. However, let us call it what it is. It is close to misleading to have the title of the Bill as it is the moment, any more than the title of the Homicide Act should be “Assisted Dying (Involuntary)”. No one would seriously describe a terrorist attack as assisted dying—but they have helped people to die, so I suppose you could justify it on that basis.

We try to narrow down a definition. If it is taking someone’s life against their will, we call it homicide or murder. If it is someone taking their own life, we call it suicide, and we have the Suicide Act 1961. It is that Act, not any other, that is amended by the Bill. How anyone can argue that a Bill amending the Suicide Act should not be called the Assisted Suicide Bill genuinely escapes me.

I draw noble Lords’ attention, although I will not quote it at length, to the Second Reading speech of the noble Lord, Lord Hameed, at col. 834, where he drew the very vital distinction between the withdrawal of artificial impediments to death taking its natural course and active intervention. That is a Rubicon that I think the public do not want to cross. I do not want to accuse the promoters of the Bill of any ill faith, but the fact that they choose to position the Bill as though it is on one side of the Rubicon when everyone knows that it is on the other rather gives me cause to think that they recognise that it is a Rubicon that the public are not yet ready to cross.

--- Later in debate ---

[Lord Falconer of Thoroton]

I could answer that, but the noble Baroness has tabled a later amendment. I am not at all unsympathetic to what she is saying—although I think that it is adequately dealt with by the Bill—but I do not think that it is appropriate to be taken into that debate when we are dealing with other amendments. I am sorry, but I do not think that that is an intervention to which I should appropriately respond, because other people have made contentions in the course of the debate. With respect, to hive off into the noble Baroness’s later amendment does not seem a sensible way to conduct our business. I am sorry.

[Baroness O’Loan]

I should like clarification from the noble and learned Lord. I think he said that Clause 2 required two practitioners, but on my reading it requires only one. If there is one practitioner and a person is diagnosed with a terminal illness, the terminal illness is, if you like, the gate into everything else in the Bill. That I have a terminal illness allows everything else to follow. If one doctor diagnoses a terminal illness, there is the possibility that that doctor may do so at the behest of relatives. The motives of those relatives may be benign or malign. If the person gets a diagnosis of that kind from a medical specialist, that may change their whole perspective on life. The mere fact that someone has said to them, “You are terminally ill. You are going to die in six months”, when that has not been said before, may lead them to think, “Perhaps I should seek assisted suicide”.

That may be quite an unintended consequence of limiting this, but at least if we have two doctors, in some form or another, as suggested by the amendment of the noble Lord, Lord Carlile, surely there would be some protection. As I read the Bill as it stands, there is very little protection for the vulnerable person who is lying in bed and seeking some way to find a way through this. Terminal illness and serious pain have a number of effects. One is to cloud judgment and another is to sap the zest for life. That zest, as the noble Baroness, Lady Finlay, and others have said, may well be restored by palliative care, which relieves the pain, as the noble Lord, Lord McColl, has said. This is such an unsatisfactory provision that I should like the noble and learned Lord to confirm whether I am right.

[Lord Falconer of Thoroton]

I think the noble Baroness is wrong. I thought that I had said Clause 3 but maybe I did not. Clause 3(3) requires two doctors to sign the person’s declaration that the person,

“is terminally ill … has the capacity to make the decision to end their own life; and … has a clear and settled intention to end their life which has been reached voluntarily, on an informed basis and without coercion or duress”.

If I inadvertently said Clause 2, I meant Clause 3 and I apologise. It involves two doctors. We could go into the debate about vulnerability again, but with regard to clarification on whether two doctors are required, I think the Bill is utterly clear.

[Baroness O’Loan]

I just want to understand which clause we are debating. I thought we were debating Clause 2, which refers to a registered practitioner. As I said, I know that there are other safeguards that the noble and learned Lord is trying to write into the Bill, but the reality is that the realisation of this clause in a person’s life may have significant unintended consequences. I simply wanted to ask the noble and learned Lord whether there is one doctor in Clause 2 or two.

[Lord Falconer of Thoroton]

It is obviously my fault for not properly explaining this. As I understand the noble Baroness’s point, she is asking whether only one doctor has to decide whether the person is terminally ill.

[Baroness O’Loan]

No, I am talking about the point at which we open the gate and make the Bill apply. I know that in subsequent situations the process develops. I think that one of the weaknesses of the Bill is that the processes are kind of confused. At this stage of the Bill, though, is there one doctor who will say to the person, “You are terminally ill, with six months to live”, so that all other discussions can then take place and you can move towards seeking the declarations and that sort of thing? I just thought it might be helpful to be clear in my mind what we are talking about.

[Lord Falconer of Thoroton]

That is a fair point. The process is that one doctor says the person is terminally ill. The patient declares that they want to take their own life and then the second doctor has to confirm both the terminal illness and the firm and settled intention, voluntariness and capacity. I am not quite sure what further point the noble Baroness is making. She is right that Clause 2 refers to the initial doctor and Clause 3 refers to the second, but the process involves two doctors. I can take it no further than that, I am afraid.

The next point that was raised about the safeguard was the suggestion that we reduce the period from six months to six weeks. I completely accept that there are uncertainties from time to time about diagnosis. A judgment has to be made as to whether someone is terminally ill and may be reasonably expected to die within six months. I do not believe that that is an impossible task for a doctor to embark upon. As the Minister said, a judgment has to be made on what the right period is. I anticipate that the mood of the Committee is that six weeks is much too short. As a matter of judgment, six months feels right after hearing considerable evidence in the commission, and it also feels right having heard the debate just now.

The fact that diagnoses and predicting the length of time that you have to live are difficult—they are difficult whether the amount of time is six weeks or six months—does not lead me to believe that the Bill should not go forward, or that we should vacate the field in giving people that right. As the noble Lord, Lord Berkeley of Knighton, said, in this area we are not dealing with certainty. The question is whether, in the absence of certainty—and no provision can give certainty—we should be saying that because you cannot have certainty you cannot have the Bill. In my view, the right conclusion is that even though you cannot have certainty—everybody agrees with that—you should nevertheless have the Bill. Having listened very carefully to the choice between six weeks and six months, and obviously having considered something in between, six months appears to be right in relation to this.