Assisted Dying Bill [HL]

Lord Avebury Excerpts

Friday 7th November 2014 Lords Chamber

[Lord Avebury (LD)]

I just want to point out that the individual concerned has the right to revoke the decision right up to the point when he takes the medication. In fact, 40% of patients in Oregon do so.

[Lord Mawhinney]

I am aware of the point that the noble Lord makes. On the other hand, I have a lingering concern that the pressure of family and events can create circumstances in which it is quite difficult for people to express that reservation if they feel they are being a burden. At Second Reading, I gave the example of my own mother and the last years of her life. I quite accept that that provision is there; I know it and welcome it. However, it does not go far enough. There is a judgment call to be made at the very end which nobody can escape, which has to be affirmed, confirmed and made. It is one last chance. That does not seem unreasonable given the substance and significance of what the legislation is about.

In my earlier intervention I sought to persuade the noble Lord, Lord Pannick, to defer his vote. He and the noble and learned Lord, Lord Falconer, exercised their rights absolutely; I have no complaint about that. They disappointed me, but they were perfectly entitled to do so. Let me therefore be explicit: I do not intend to push this to a vote today. I want to stimulate people to think about whether a settlement made some time ahead is a sufficient safeguard or whether it ought to be mandatorily reaffirmed just before the act takes place. I would like your Lordships to think about that. If my proposal finds favour, that is good and we can come back to it on Report. If not, I am interested in hearing other suggestions.

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[Lord Alton of Liverpool]

My Lords, I support Amendment 65 and Amendment 71 in the name of my noble friend Lady Hollins. I also support what the noble Lord, Lord Swinfen, has just said. I thought that he made some incredibly important points. We are dealing with capacity, depression, burdensomeness and the ability to communicate. The last point made by my noble friend Lady Masham during her intervention is one that the movers of the Bill need to take very seriously.

I draw the attention of noble Lords to an Early Day Motion tabled in another place earlier this year. It deals with some of the points in these amendments and states:

“That this House notes the results of the Washington State Death With Dignity Act Report 2013, published on 10 June 2014, which concludes that the number of deaths through physician-assisted suicide has tripled since the first year of implementation and increased by 43% between 2012 and 2013; expresses grave concern that 61% of those who received lethal drugs in Washington in 2013 gave as a reason for seeking assisted suicide being a burden on family, friends or caregivers; recalls that those who introduced the law in Washington assured the public that it would only apply to terminally ill, mentally competent patients; and reiterates its belief that a corresponding change in UK law would endanger the lives of the most vulnerable in society”.

I agree with the sentiments expressed in that Early Day Motion. As the debate continues in the country at large, I hope that we shall have the chance to hear more voices from those who have been elected and who have had direct contact with their constituents.

It is not just in the state of Washington where we have seen things change from often good intentions—I pay tribute to the noble and learned Lord, Lord Falconer, whose motives in this I have never doubted—so that what comes out at the end is not always so. I draw the attention of the House to the comments of Professor Theo Boer in Holland, who said:

“I used to be a supporter of the Dutch law. But now, with 12 years of experience, I take a very different view … Pressure on doctors to conform to patients’ (or in some cases relatives’) wishes can be intense”.

He admitted that he was,

“wrong—terribly wrong, in fact”.

He had changed his mind. Since 2008, the number of assisted deaths in Holland has increased by about 15% every year, maybe reaching a record of 6,000 a year. It is worth pointing out that the law there changed at first simply by turning a blind eye—then voluntary euthanasia was introduced and then involuntary euthanasia. About a quarter of the deaths in Holland every year now are involuntary—that is, without the consent of the patient. These are the facts that we must consider as we consider whether or not we are putting sufficient safeguards in the Bill to safeguard the most vulnerable.

The noble Lord, Lord Deben, was right to point to the often fragile existence that many elderly people have. I saw figures recently that suggested that around 1 million elderly people do not see a friend, relative or neighbour during an average week: toxic loneliness. It is assisted living that we need in this country, not assisted dying. We need people who can help people in that kind of situation.

We have all experienced depression. Winston Churchill experienced the black dog. Depression is prevalent in many of our large urban communities. Certainly, in the areas that I represented, it was not heroin—although you saw heroin on the streets—it was antidepressants on every shelf of every home that you went into in the high-rise blocks, cluster blocks and spine blocks, where people were forced to live in depressing situations. That is why I was not surprised by the remarks of the noble Baroness, Lady Hollins, with all her experience as a former president of the Royal College of Psychiatry. I was not surprised to hear what she had to say, but I was particularly struck by a report published in April of this year by Price, McCormack, Wiseman and Hotopf. They said:

“Before mental capacity can be placed so centrally as a safeguard in the process, discussion needs to take place about what exactly is meant by the term ‘mental capacity’ in the new Assisted Dying Bill”.

The Bill does not require any treatment for depression, although it proposes in Clause 8(1)(a)(ii) that there should be a recognition of its effects on a person’s decision-making. It is not clear what that would mean in practice. Would it mean that a patient would have to receive treatment or a psychiatric assessment, or be refused altogether? There simply is no clarity on that key point.

I also draw the House’s attention to the evidence given to the noble and learned Lord’s own commission when it considered the issue of capacity and judgment back in 2006. It said that,

“in the context of such a serious decision as requesting an assisted death, the Commission considers that a formal assessment would be needed to ensure that the person concerned had capacity. The evidence given to the Commission made it clear that there are a number of factors that might affect an individual’s mental capacity, including temporary factors caused by physical or mental illness, and more permanent impairments such as a learning disability. It would be important that such factors were identified and that an assessment was conducted to explore whether the subject’s decision-making capacity was significantly impaired … the Commission does not consider that a person with depression, whose judgement might be significantly impaired as a result of this depression, should be permitted to take such a momentous decision as ending their own life”.

I know that the noble and learned Lord still holds to that view. I commend it to the House.

[Lord Avebury]

Does the noble Lord prefer the situation that exists at present, in which several hundred unassisted suicides of terminally ill people take place every year?

[Lord Alton of Liverpool]

The noble Lord is right—and every one of those deaths is a tragedy. That is why I said that we have to intervene to assist in living, providing unconditional care, support and love. Simply to provide opportunities for people to take their own lives does not seem a wholesome or good way for this country to proceed. I have known the noble Lord for a very long time and I know that he would not support that either. Let us therefore be careful not to institutionalise what he rightly says already takes place. Just because something happens is not a good reason to make it legal or more easily available. That is why I support these amendments.

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[Lord Howarth of Newport]

My Lords, I added my name to the amendments in the name of the noble and right reverend Lord, Lord Harries of Pentregarth. I am glad that we have the opportunity to spend a few moments examining this question of the nature of voluntariness in the circumstances for which we are seeking to legislate.

There can be a multitude of pressures on people who are ailing or nearing death; people who find themselves in a situation in which they consider that they may wish to seek assistance in their suicide. I know that my noble and learned friend Lord Falconer, in the drafting of the Bill, has sought very clearly to preclude situations in which anyone is driven by coercion or duress to a decision of this nature. It is going to be very difficult to ensure that those conditions are satisfied, whether in the context of the original Bill or whether in the Bill as modified by the amendment in the name of the noble Lord, Lord Pannick. There are the most overt and obvious pressures coming, perhaps, from family members who are exhausted, angry and grudging, and who may not love the person they find themselves having to care for. There are, as my noble friend Lady Mallalieu mentioned this morning, circumstances in which family members are actually motivated by venal considerations. They want to stop spending all this money on the costs of care and hurry up their inheritance. Although it is most unpleasant to think of these possibilities in human nature, they do exist and we cannot ignore those possibilities.

There could also be pretty overt pressures from professional carers and doctors who are under pressure, working with inadequate resources, impatient, testy and frustrated themselves. We can see a range of possibilities, from inadequate but well intended care, going all the way through to the kind of institutionalised callousness that was reported at Mid-Staffordshire and Winterbourne View—situations of elder abuse. In a sense, it should be easier to preclude people coming to a decision to seek to end their own life with assistance in such obvious circumstances. However, there are then the subtler situations, in which someone has perhaps been pressurised unintendedly by a person whose gesture or facial expression was not meant to be seen by the relative or person for whom they are caring and was interpreted by that person to signify that they were a nuisance or were no longer wanted.

In her speech at Second Reading, the noble Baroness, Lady Campbell of Surbiton, talked of the pressures of pity and how pity can be experienced as contempt and as a signal that your life is not worth living. There are tacit pressures that could arise even from the availability of the remedy that this legislation would make legal—its tendency to normalise the practice of assisted suicide and, going with that, a tendency to diminish trust between patients, sufferers and those who have responsibility for their care. A number of noble Lords have spoken of the risks of an altered ethos in the medical profession. Of course, people who are old and ill and costing the NHS or their families a lot of money may simply felt that they ought to stop incurring such expenditure. If people internalise such pressures and arrive at a sense that their continued existence cannot be justified and they do not have the self-worth they once had, if they feel guilty and that they are a burden on their families and the system, are we to say that these are decisions freely taken? The noble Baroness, Lady Warnock, in her speech at Second Reading proposed to us that people could proudly and honourably—admirably—come to a decision that they should not be a burden on others. Is that a freely-made decision when such pressures have been psychologically and emotionally internalised? It is a difficult question to judge.

[Lord Avebury]

I wonder whether the noble Lord has ever looked at the Macmillan Cancer Support site, on which there is a forum for people with incurable cancer. If he looks on that site, he will find that no patient has ever expressed the view that they are a burden on the National Health Service. It has never come up at all.

[Lord Howarth of Newport]

I will certainly look at that site, but I wish I could be as confident as the noble Lord is on that point.

I will conclude by saying that I think it is going to be very difficult for doctors ever to be certain that a decision has been arrived at on a truly voluntary basis, freely. It will be equally difficult for the judge that the noble Lord, Lord Pannick, has brought in to the proceedings. As the Minister, the noble Lord, Lord Faulks, put it to us earlier, there is a risk that pressures and duress will never be wholly eliminated.