Assisted Dying Bill [HL]

Lord Bishop of Oxford Excerpts

Friday 7th November 2014 Lords Chamber

[Lord Phillips of Sudbury (LD)]

My Lords, it is in the very best traditions of this House that there is standing room only at this debate on a Friday. It is entirely appropriate, is it not, given the profound issues that are involved? I have no doubt at all that the country will be watching and listening to this debate in a way in which it perhaps has not done since the last of these debates, because this is one in a series. Like other noble Lords, I have taken part in all those debates; I come at the subject from having spent six years in the early part of my legal career as a part-time assistant to a part-time coroner and occasionally deputising for him. I was very vividly thrown up against the issues that are at the root of this legislation. I have to confess—I see the noble Lord, Lord Joffe, sitting yonder—that whereas I was wholly unconvinced when the noble Lord started his pilgrimage, the Bill contains the sort of protections that could make it one which we should support, given that it blocks off the thin-end-of-the-wedge fears that many of us had formerly.

I will make only one major point. We do not want to go from a situation where, as now, you have to be rich enough to go to Switzerland to get some sort of justice in these complicated matters. However, we could be in a comparable if lesser dilemma because of the cost which will attach to going to the High Court—with representation, as one would have to have—and getting an order. I have no doubt that the cost will be more than most of us expect and more than some of us fear, and legal aid is now available only to people at a very low level of income, and it will leave at least 80% of the public of this country unsustained if they wish to use the remedies that the Bill will provide. That is not right in a matter of death. One of the things we need to contemplate is whether we have some special arrangements for this life and death matter.

Secondly, the noble Lord who produced the Bill has done wonderful work, and those who tabled the amendments—the noble Lord, Lord Pannick, and my noble friend Lord Carlile—have also done great work. However, there is a huge number of problems at the back of either amendment; a great number of issues that have not been considered carefully, in the round, and reported on. I hope very much that we will not vote on these amendments now or indeed at all today, because we all need time to reflect on and contemplate them. However, I would like us to think about—and, if necessary, to form— an ad hoc group to report on whether one could not deal with the issue at the heart of these amendments just as well by having either a county court judge or a special panel of justices of the peace to determine the issues concerned. Some may think, “That’s not good enough”. As one who spent a lot of time in magistrates’ courts and county courts in years past, I do not hold that view. In some ways, given that the issues are—how shall I put it?—common-sense life experience issues that will have to be determined by whoever adjudicates on this, I am not so sure that a county court judge or a panel of magistrates might not be at least as good, competent and able to undertake the decisions involved.

[Lord Harries of Pentregarth (CB)]

My Lords, my name is down in support of the amendment in the name of the noble Lord, Lord Carlile, with the noble Lord, Lord Darzi, and I very much support the reasons he set out so cogently.

I was very glad to see the amendment in the name of the noble Lord, Lord Pannick, because it points in the right direction. I cannot support it, because I believe that doctors should not be involved at all in the final decision-making process. Under the noble Lord’s amendment, the courts would check that a good decision had been made, and they may ask for witnesses, as the noble and learned Baroness, Lady Butler-Sloss, said.

We need, for all the reasons set out at Second Reading, to take doctors out of the decision-making process altogether. I remind your Lordships of points made at Second Reading about the erosion of trust if a Bill such as this went through Parliament, and the minority of doctors who are willing to take part in the system—four out of five doctors are totally opposed to taking part in it, so only a minority of doctors would be willing to do it. That would lead to a lot of looking around for the right kind of doctors. I do not want to get into the business of knocking doctors—they have been in my family for some time; my wife and my son are doctors, and my grandson is on the way there—or weighing the relative merits or demerits of rogue doctors and rogue lawyers. However, we are not talking about individuals, but about the Supreme Court. The Committee on Standards in Public Life carried out a series of polls about how the public regard various professions, which shows that trust has been eroded in so many professions, but not in judges. Trust in judges remains at about 80%. That is a very significant factor; decisions made by the court on this issue, if we eventually went down this road, would be trusted by the general public.

I would just like to mention one point that has not been mentioned. I have a quotation from the noble and learned Lord, Lord Neuberger, in the judgment that the noble Lord, Lord Carlile, was discussing. He said:

“Quite apart from the notorious difficulty in assessing life expectancy even for the terminally ill, there seems to me to be significantly more justification in assisting people to die if they have the prospect of living for many years a life that they regarded as valueless, miserable and often painful, than if they have only a few months left to live”.

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[Lord Pannick]

Of course I reflect on what the noble Lord says, not least because I have great admiration and respect for him. However, he will know, as will as any other Member of this House, that we often vote on issues of principle in Committee. If there were an issue that could be resolved by further analysis and debate then I would see the force of the point.

[Lord Harries of Pentregarth]

There are some issues that need to be further clarified. The noble Lord, Lord Carlile, has a whole range of amendments going into more detail about what his proposal would actually mean in practice. The House has not had a chance to hear those amendments, which I think will go some way to addressing the point that the noble Lord made against the point that the hurdle was too high. I very much support those who urge that the noble Lord should get together with the noble Lord, Lord Carlile, and the noble and learned Lord, Lord Falconer, to see whether there is some more common ground.

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[Baroness Masham of Ilton (CB)]

I shall tell the noble Lord, Lord Jopling, about the death penalty in America where the lethal drugs had a disastrous effect, with prisoners dying very slowly.

[Lord Harries of Pentregarth]

My Lords, I have my name down in support of the amendment tabled by the noble Lord, Lord Carlile. He has explained the rationale behind it with his usual clarity and I am not going to repeat his arguments. I support very strongly what the noble Baroness, Lady Finlay, said about the importance of taking the whole process—the independent assessment and the administration of the drug—out of the hands of doctors and making it from beginning to end in every detail a court-controlled process.

I shall address briefly one question which may be on the minds of many noble Lords. Indeed, it has been said before that this may be to set the bar too high. It is true that under this amendment the tests are very stringent and rigorous, but surely on an issue of life and death such as this, they need to be as stringent and rigorous as possible. Provided that a decision can be made quickly—we have heard many reassurances that the courts can make decisions like this quickly—surely the test cannot be too stringent or too rigorous. What many of the opponents of the Bill are worried about is not that they are failing in compassion for people who find their life unbearable, but about the overall effect of the erosion of the value of human life in our society by decisions on this kind of issue. If the tests are rigorous and stringent and are made from beginning to end by a court process, people will be able to see that these are truly exceptional cases and there will be less effect in terms of eroding more generally the value of human life and in the way we nurse the sick and treat other people who feel their life is a burden.

[Lord Deben]

My Lords, I do not believe that hard cases make bad law. I have always thought that that is one of the phrases which make it difficult to have a sensible conversation. I believe that you have to be careful not to make law because of a stereotyped position. One of the difficulties in this debate is that we tend to have stereotyped views about what is happening at the bedside. It is important to realise that a whole range of different things happen at the bedside and the relationship between the patient and his or her friends and family is never the same.

I listened with great care to what the noble Lord, Lord Carlile, said. I am not a lawyer and I cannot be precise as to whether his particularities are the best that we can achieve, but I hope that the House will think seriously about the need for three key elements. First, there is speed. If we are going to have this Bill, we want someone to be able to make this decision with the courtesy that speed demands. The process needs to be fast enough to be commensurate with the seriousness of the decision. Otherwise it lengthens something which someone is in desperate need to finish.

Secondly, it needs rigour. The noble and right reverend Lord, Lord Harries, said that. There is nothing wrong with rigour, unless it is of a kind which makes speed impossible. I do not think that the rigour which the noble Lord suggested makes speed impossible. It says to the public as a whole that we have made this change in the law, but it is not a change in the way in which we think about human life. Those who support this Bill believe that it is an enhancement of their view of human life and that the rigour is the mechanism whereby society says that it still believes deeply in the standards and values which respect human life. On this specific and particular occasion, according to these very rigorous rules, they believe it right for someone to take their own life with the assistance of someone else.

Thirdly, we have to do this in a way in which the aftermath is as manageable as possible. I hope that noble Lords will think very carefully about the effect of assisted suicide on the family and friends after it has happened. I believe that the Victorians spoke far too little about sex and far too much about death. The reverse is true today. We do not understand—because very often we are unprepared to talk about it—the effect of death on the rest of the family. I remember receiving a very considerable rebuke when I allowed—and, indeed, organised—my children to see their dead grandmother. I thought it was necessary to start the whole process of grieving. I have become more aware of the different ways in which people react today and of the difficult issue of how someone might react to death before it happens. Anyone who has been involved pastorally—whether in parliamentary or religious terms or just in terms of neighbourliness—recognises that it is hard to know how a particular person will react ultimately to what has happened.

Changes in the law along the lines that the noble Lord, Lord Carlile, has proposed are very important. We should be prepared to recognise that, although this is a decision of the patient, guaranteed by the law to be an individual decision, we as legislators have to legislate in a way which also respects and protects the effect of that decision on society. In an odd way, that is actually our biggest job. We represent society in trying to make these tough decisions. I hope that your Lordships will take seriously the need to do as my noble friend Lord Carlile has suggested, not just for the patient, not just for the doctor and not just for the assurance that we have really professional assessment of the medical advice, but also to make sure that when the children look back on the occasion, they are protected in the best possible way and are able to accept it. After all, whichever side of this argument you are on, that is crucial. Anyone who does not realise what grieving has to be if the future is not going to be seriously tarnished and damaged has not been through that experience.

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I recognise also that specialist palliative care is not evenly available to everyone in this country, but I feel, given the gravity of what is being proposed here, that it is incumbent on us to ensure that a fully informed decision means something more than just a chat in the consulting room of a doctor who, as likely as not, lacks an appropriate level of expertise in end-of-life care. This amendment in its own right has the potential to bring relief to many who face physical and mental anguish, but it goes further: it provides a vital safeguard that certainly needs to be a feature of the Bill.

[Lord Harries of Pentregarth]

I shall speak briefly to my Amendment 8 which would ensure that any request for assistance is voluntary. The House is agreed on the need for a voluntary decision, but the question is how you ascertain that the request really is voluntary.

I refer to a later amendment in my name, Amendment 69, which says that the person must not be under pressure or duress from others or from a sense of obligation or duty to others. Noble Lords have touched on this once or twice because it is a matter of huge concern, but we have not yet had a thorough debate on this issue. The noble Baroness, Lady Warnock, wondered why it was such a bad thing to have a sense of obligation or duty to others. That is a good question. The trouble is that the remarks we make are never made in isolation; they are always made to other people. If a person says out loud, “I am beginning to feel a bit of a burden”, somebody may hear that remark. As the noble Lord and learned Lord, Lord Mackay of Clashfern, and the noble Lord, Lord Deben, said so movingly, you want to give such a response that the person will know that, despite everything, they really matter. Within all the subtleties of a relationship, you might say something like, “You are certainly worth that and a great deal more”. In order to ensure that the request really is voluntary and there is not that kind of subtle coercion, Amendment 69 also says that the doctor must have in-depth discussions not just with the person but with the family and people close to them.

The reason why this matters so much was brought home to me a couple of days ago when I received a letter from somebody saying that a relative of theirs had gone into a hospice for temporary respite and one of the nurses said to them,

“Oh, don’t you think it would be better for you to stay here instead of going back”,

to your daughter-in-law’s place?

“She works ever so hard taking care of you; don’t you think you are a bit of a burden to her”?

That was a very unfortunate remark, but people do make unfortunate remarks and they weigh on them.

The reason why this is such a key issue can be seen from the figures and research in Oregon and Washington. Both states collect data on the end-of-life concerns behind people’s decision to seek assistance with suicide. Contrary to popular impression, the data reveal that inadequate pain control is one of the least common concerns behind a request. In 2013 only 28.2% of those who sought assistance with suicide indicated inadequate pain control as a concern. Alarmingly, and more commonly cited, is a concern about being a burden on family, friends or care givers. In 2012, 63% of those in Washington cited this as a concern. In the same year, only 33% cited poor pain relief. Responses from Oregon reveal the same pattern. Since legislation was passed there, concern about being a burden has increased as a motivator from 13% in 1998 to 49.3% in 2013. This is a matter of huge concern and I hope that the noble and learned Lord, Lord Falconer, will take the concerns of the whole House on board when he looks again at his Bill.

[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.

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[Lord Falconer of Thoroton]

The last half hour has been a remarkably focused debate on a series of amendments. I wish to go through each of the points that have been made.

Amendment 11 in the name of the noble Lord, Lord Alton of Liverpool, seeks to insert at the end of Clause 1 that a condition of having a right to an assisted death is that someone,

“is able to administer to himself or herself a lethal dose of drugs through whatever route is normally employed for ingestion of food”.

As the noble Lord recognised, that is at odds with the terms of the Bill, which state that,

“an assisting health professional may … prepare … medicine for self-administration by that person … prepare a medical device which will enable that person to self-administer the medicine; and … assist that person to ingest or otherwise self-administer the medicine; but the decision to self-administer the medicine and the final act of doing so must be taken by the person for whom the medicine has been prescribed”.

The Bill then specifically says with reference to subsection (4) of Clause 4, which I have just read out:

“Subsection (4) does not authorise an assisting health professional to administer a medicine to another person with the intention of causing that person’s death”,

so it absolutely underlines that it has to be a final act by the patient himself.

I am against the amendment of the noble Lord, Lord Alton, as it would discriminate against weak patients who cannot easily manage medication orally, including weakened cancer patients as well as those suffering from motor neurone disease, where setting up a form of driver would be more appropriate, but leaving the patient to take the final action. Alternatively, a nasogastric tube or even an intravenous drip can be set up and still leave the patient in control of the final action. The key thing here is to make sure that the Bill underlines that it has to be the final act by the patient but gives some degree of flexibility.

Amendment 10, which was primarily referred to by the noble Lord, Lord Cavendish of Furness, and is in his name, seeks to add a condition that the request for an assisted death should be made,

“on the basis of a fully informed decision”.

The Bill currently says that the person has to make the decision,

“on an informed basis and without coercion or duress”.

The Bill also provides:

“In deciding whether to countersign a declaration under subsection (3), the attending doctor and the independent doctor must be satisfied that the person making it has been fully informed of the palliative, hospice and other care which is available to that person”.

As a result of the amendments made by the Committee, moved by the noble Lord, Lord Pannick, the Bill now states that the judge has to be satisfied that the person has,

“a voluntary, clear, settled and informed wish”.

As between the Bill and the noble Lord, Lord Cavendish, there is no dispute that the person should be informed. I would be happy to insert “fully” wherever “informed” is referred to.

The noble Lord, Lord Cavendish, also has a further amendment, Amendment 70, supported by the noble and learned Lord, Lord Mackay of Clashfern, and the noble Baroness, Lady Grey-Thompson, in which, in effect, they set out what one would expect to form part of the full information given before the decision is made. It includes what the consequences of the illness are, what palliative care and pain relief are available, and what the prognosis is in relation to the illness—considerable detail like that. I would expect all these matters to fall within the words “fully informed”, but I recognise the feelings of the noble Lords, Lord Cavendish, Lord Howard of Lympne, and the noble and learned Lord, Lord Mackay, all of which suggest support for further spelling out of the meaning of “fully informed”. Can I take that away and come back with a proposal on Report to spell that out? I should make it clear that the sorts of things referred to in Amendment 70 would have been what I would have expected to include in any event. However, I can see that the Committee would get more assurance if it were set out in the Bill.

The next group of amendments were from the noble and right reverend Lord, Lord Harries, who was keen in Clause 1 to insert a provision that the decision was being made voluntarily. I am sorry to be wearisome, but the Bill currently requires that the two doctors must be satisfied that the person,

“has a clear and settled intention to end their own life which has been reached voluntarily, on an informed basis and without coercion or duress”.

In addition, as a result of the amendments made this morning, the judge has to be satisfied that the individual,

“has a voluntary, clear, settled and informed wish to end his or her own life”.

There is therefore no doubt that the requirement for voluntariness is there at two stages already. With all respect to the noble and right reverend Lord, Lord Harries, legally it will not make much difference to add that provision elsewhere also.

However, the noble and right reverend Lord touched on the deeper issue of whether we as a House would consider a situation whereby, even though one wished to live, one decided, because one was a burden to those one loved, to go down the route of an assisted death. I would say that that was not voluntary because one wanted to live. That may be an oversimplification in many cases—there may be other cases where the situation is more complicated—but I would not be in favour of putting anything to that effect in the Bill.

[Lord Harries of Pentregarth]

The noble and learned Lord seems to agree with my point and speaks as though it would automatically be taken into account. Would it not be safer to have it spelled out in the Bill—that one of the marks that the decision was voluntary is that those looking into the person’s decision were assured that that person was not acting out of a sense of duress because they felt a burden?

[Lord Falconer of Thoroton]

My reason for not putting that in the Bill is that so many cases are much more complex than the simple case I gave, where I would not wish for there to be an assisted death—where one’s motive for wishing to have an assisted death will be a mixture of “I don’t want to be dependent on other people, I don’t want the lack of dignity, I don’t want to be a burden”, a whole mixture of motives that make clear “I do not want to go on living for the last week or month”. I am very unkeen to isolate just one factor in what is a much more complex issue than the example I gave. That is why I am against putting that in the Bill.