Assisted Dying Bill [HL]

Lord Berkeley of Knighton Excerpts

Friday 16th January 2015 Lords Chamber

[Lord Cormack]

My Lords, if we are to have this Bill, it is very important, as the noble and right reverend Lord said, that there should be confidence in it. I just want to address a few brief remarks to the amendment of my noble friend Lord Carlile of Berriew, to which the noble and right reverend Lord is also a signatory.

I remember as a young Member of Parliament in Staffordshire talking to a rural general practitioner who had been there for many years. He made the point to me—I have quoted it before—that a doctor can only truly know his patient if he knows him in his home as well as in the surgery. I know that things have changed a lot since then but I treasure my relationship with my general practitioner—it is one of the most important relationships that I have. I like to feel that I can talk uninhibitedly to him, and indeed I can.

It is very important that we avoid falling into a trap. Because of the widespread reluctance among the medical profession to support the Bill, we could fall into the trap of certain doctors being available for hire. That is the last thing that the noble and learned Lord, Lord Falconer, would want. I have never at any stage doubted for a single second his utter sincerity and his honourable motives. That should be taken as read throughout the House, and I believe that it is. However, where a large number of medical practitioners feel, for the best reasons of conscience, that they cannot sign up to this Bill, there will be a danger—I put it no higher than that but one has seen it in the field of abortion—that some doctors will in effect be for hire. That has to be guarded against and one of the best ways of doing so is to ensure that there is an amendment similar to that moved by my noble friend. I hope that, when he comes to respond, the noble and learned Lord, Lord Falconer, will accept that.

I have grave reservations about this Bill. I do not want the Bill but I understand why many do. Therefore, if it, or a Bill like it in the next Parliament, is to go on to the statute book, the safeguards must be real, comprehensive and absolute. If a doctor is to sign a document, that should happen only after lengthy conversations with the patient concerned—after a real discussion. I would like to feel that during that discussion the doctor, whatever his or her personal views, can play devil’s advocate and point out all aspects of this ultimate decision that the patient is on the verge of making. However, that can happen only if there is a real knowledge of the patient and a proper relationship between the doctor and the patient. Six months is a short enough time. I have been registered with my general practitioner for over 30 years. Many noble Lords will have had similar long relationships and others will have had shorter ones. But before you talk to a doctor you feel the need to know him, and he or she needs to know you. The amendment moved by my noble friend is modest but it helps to provide a safeguard which, if a Bill such as this is to go on to the statute book, we would all like to feel is in place.

[Lord Berkeley of Knighton]

My Lords—

[Baroness Garden of Frognal]

My Lords, the noble Baronesses, Lady Campbell, Lady Grey-Thompson and Lady Brinton, have been trying to speak for a while. I wonder if your Lordships would feel it appropriate if we heard from them now.

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[Lord Warner]

The amendments would not deal with that matter. They would in many cases make it impossible for a terminally ill person who wanted to explore the issue of assisted dying to meet the requirements to have those conversations—let alone anything else—with a medical practitioner who was responsible for their care when they had moved house. I am not trying to make a wider point. I am on the narrow issue of the words in the amendments. I am with the noble Baroness, Lady Brinton, all the way on the impracticability of Amendment 13.

I move on to Amendments 20, 21 and 22 in this group. No one who supports the Bill is arguing that we expect doctors to have the gift of foresight about the length of time that someone will live for. I point out that the Bill uses a period which is commonly used in many other areas of public policy, not least in the area of welfare. If noble Lords read Section 82 of the Welfare Reform Act 2012, they will find a definition of terminal illness that is being applied by doctors day in and day out up and down the country—for those who are nerdy in these matters, it is on form DS 1500—to secure improvements in benefits because the person is terminally ill. Parliament, in the past couple of years, has passed legislation which sets out the terms of terminal illness, and doctors up and down the country are applying that legislation for the benefit of people with disabilities. The idea that the Bill is doing something different and novel in this area is, frankly, not true.

I also ask noble Lords to read the GMC guidance for doctors on issues such as end-of-life care and consent. In its admirable guidance, it is clear that there is a reasonable expectation that when a doctor thinks that someone may be terminally ill and may die before the end of 12 months, they may begin conversations with people. It is not unethical, it is not bad medical practice, where a doctor believes that someone may be terminally ill, not to do anything dramatic, but to begin to have a conversation with that person and their family. If you make it a shorter time for the person to have such conversations—six weeks, for example—all you are doing is putting enormous pressure on somebody who has had to come to terms with some catastrophic information about their life and circumstances. It would be inhumane, unfair and lacking in compassion to shorten the timescale within which doctors and their patients could have the conversations that they need to have.

I believe that the balance is struck right with the six-month term. In the United States, where assisted dying is legal, the bar has been set at six months and there is strong evidence to demonstrate that the model there works effectively and safely. Some very interesting work was done by a surgeon and public health researcher, Atul Gawande, who explains in his recent book Being Mortal: Medicine and What Matters in the End that survival statistics form a bell-shaped curve in which there are a small number of people who survive much longer than expected—the tail of the curve. He says:

“We have failed to prepare for the outcome that’s vastly more probable … we’ve built our medical system and culture around the long tail”,

of small numbers of cases. His view is supported by a number of pieces of research. I shall quote one that shows that fewer than one in four patients outlived the prognosis when their clinicians predicted survival for six months or less. In the great majority of cases, you could argue that the doctors have been optimistic about survivability rather than the other way around. Therefore, I think that my noble friend has struck the right balance in this area.

I shall mention one other bit of GMC advice, which relates to Amendment 20. The GMC is very clear to doctors, beyond doubt or peradventure, about the issue of patient consent. In my view, the amendment would be a breach of that advice. The advice is clear that even if the doctor disagrees with the patient’s decision their right to refuse a course of treatment is absolute and doctors are expected to respect that right. Following the GMC’s advice, I suggest that putting another impediment on doctors, as that amendment would, would be unfair to doctors.

[Lord Berkeley of Knighton (CB)]

My Lords, unlike the noble Lord, Lord Cormack, I have always welcomed and embraced the Bill, or certainly one very like it. One of the great qualities of your Lordships’ House is that, especially on an occasion like this, we listen to the arguments and are prepared to mould what we are trying to achieve. When I listened to Amendment 13 from the noble Lord, Lord Carlile, and especially Amendment 13A from the noble Baroness, Lady Finlay, I felt that they were reasonable. However, I have now heard the noble Baroness, Lady Brinton, and the noble Lord, Lord Warner, very eloquently saying why they are very worried about this issue so I am still slightly up in the air about it, although I think, with regard to Amendment 13A, that it is essential that these are “licensed” medical practitioners. The noble and learned Lord, Lord Falconer, is trying as hard as he can to go with the House and to take on things like this.

My point, and I shall make it extremely briefly, is about the six months’ terminal illness. I think that this is right, and I shall tell the House why. I have had lots of letters, as have many noble Lords, and there is something that they nearly all say. I had one this morning from someone who is 80, saying, “I don’t have a terminal disease but I do want to feel that I would have the option, if I became really ill, to talk this over with my doctor and work out a way of assuaging great pain and causing distress through that pain to my family. It might just be that I would talk to my doctor about having opiates that might repress the respiratory system”. Is that assisted suicide? I do not know. I certainly think that it is an option; frankly, very few doctors that I know deny that it has happened in their lives. They have treated people, especially in country practices where, as the noble Lord, Lord Carlile, has illustrated, they have known the patient for many years, even decades, and they ease them out of this life into the next one. It seems to me that this is the luxury that most human beings want to be afforded. I think that that is what the noble and learned Lord is trying to achieve, and on that basis I very strongly support him.

[Lord Harries of Pentregarth]

Would the noble Lord like to clarify what he means by that very ambiguous phrase about doctors easing patients out of this life? Does he mean the administration of pain-killing drugs, which might have the side-effect of slightly shortening life, or does he mean doctors deliberately administering an overdose in order to kill a person? Perhaps he could clarify what he means because he is making quite a bald claim about doctors’ practice.

[Lord Berkeley of Knighton]

As in so many things, there is a line here which is difficult to draw. However, doctors in this House have privately told me of occasions when they have treated people with appalling pain in a way that they knew was likely to finish their life. It is very hard to put it more precisely. They would not guarantee that it did because, as we have heard from the medical profession, nobody can guarantee anything. No doctor here can tell us when we are going to die; they can say only, “This is the likelihood”, so I cannot give the noble and right reverend Lord a definitive answer. Everybody keeps saying that we must have clarity but there is no clarity about dying or pain relief. That is the whole point of this. What I can say, which is germane to the argument at the moment, is that we need at least six months to be able to discuss these things calmly and give people the feeling that they can plan ahead. In fact, that should rule out the bronchial infections we have been talking about because they would not be considered part of the terminal disease. It is a question of planning and so many people have said, “I want this option at the end of my life”. Who are we to deny it?

[Lord Blair of Boughton (CB)]

My Lords, I declare an interest in that I was a member of the Commission on Assisted Dying, chaired by the noble and learned Lord, Lord Falconer. I want to respond to Amendments 17 and 21 by mentioning specifically that at the conclusion of the two years in which we heard evidence, our initial position was that this prognosis period should be 12 months. We based that on the GMC guidance to which the noble Lord, Lord Warner, has just referred. It was based on the time at which a doctor could begin to discuss end-of-life care with his or her patient. We decided to reduce the period to six months because we thought that this decision was even more dramatic than the 12-month position of possibly dying. Now that we are into six months, we are much closer.

With all respect, it seems that the noble Baroness, Lady Meacher, has made the right point in relation to these amendments. We are looking at this from the wrong end. As the noble Lord, Lord Berkeley, has just said, there is no certainty but this is aimed at those individuals who themselves believe, with mental capacity, that what lies ahead of them in suffering and indignity is unbearable to them. It may not be unbearable to somebody else but, for them, it is unbearable and they want to have a discussion. We have been told about people who are going to recover because a new treatment will appear. These are people of mental capacity who are making clear judgments. Is it very likely that those people, if they start to feel better, will say, “No, I still want to die because I decided that I wanted to a little while ago although I now feel better”? That is a completely nonsensical position.

There is one provision of this Bill that people do not seem to notice. In Oregon, when the decision is made, the medicine is handed to the patient and he or she wanders off and puts it in the cupboard. That is not the case in the Bill. The medicine, such as it is, will be in a pharmacy. It will not be released to the patient until everybody is absolutely clear that all the processes have been gone through and that the person still has a settled determination to end their own life. It will then be released to a medical practitioner or nurse and if that patient does not take it within 24 hours, it is not left in the house. It goes back to the pharmacy and the discussion starts again. These are reasonable provisions. There is the idea that we should tie it to the uncertainty of a medical prognosis. We have to have some limits but, after two years of deliberation and knowing the GMC guidelines, six months struck those of us in the commission as a reasonable compromise. I recommend it to the House.

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[Lord McColl of Dulwich]

I thank the noble Lord for that intervention. I have been in practice for very many years and I still am. One of the things that always struck me was how wrong I was about trying to predict when a patient would die. I well remember a typical case of a lady who was only 28. She had inoperable cancer of her throat. She was in great distress, with pain and distressed breathing. I saw my job as a doctor to relieve all her symptoms, whatever the cost. I said to her, “If you like, I can put a needle into your vein and titrate you with heroin”. Heroin is a marvellous drug. You have to dilute it in a large volume and not use the small volumes in the ampoule, because if a gun goes off you might suddenly give them too much too quickly. I titrated her and asked her to tell me when all the symptoms had gone. Eventually she said, “Yes, that’s fine”. It was a huge dose of heroin. I had no problem about giving it. The strange thing was, not only did it not kill her, it gave her a new lease of life. It is unrelieved pain that is the killer.

[Lord Berkeley of Knighton]

The noble Lord said earlier that he gave his patient a huge dose of heroin. He used the words, “whatever the cost”. If it had killed her, would the noble Lord feel that he had assisted, maybe nobly, in her dying?

[Lord McColl of Dulwich]

The problem is that when you give these very powerful drugs, the symptoms are relieved but the patient is subject to the complications of being in bed for a long time, including clots in the veins of the legs. These may dislodge, go to the lungs and kill them, or they may develop pneumonia because their breathing is not quite as effective. Those are the complications but I resist the idea that I am deliberately killing them; I am deliberately relieving all their symptoms.