Assisted Dying Bill [HL]

Lord Cavendish of Furness Excerpts

Friday 7th November 2014 Lords Chamber

[Lord Davies of Stamford]

My Lords, I will make three points, which are important at this stage of the debate.

First, I very much deprecate the frivolity with which the noble Lord, Lord Carlile, answered my question about the time involved in producing an independent expert’s report. It is quite wrong to be frivolous about such a very important subject. Clearly, there has been a tendency to put forward a number of amendments in this group, all of which would increase both the time and the cost required to enable someone to benefit from the new regime brought in under the Bill. It is quite wrong of us in this Committee to underestimate the fact that if we passed these amendments we would add a considerable degree of cost and time. There would be the need to go to a coroner, the need for an independent medical expert, and for another independent expert who would be supposed to collect the drugs and oversee the process, and so forth. All that would mean more people, that arrangements would have to be made—in practice they cannot be made in a second or two—and that reports would have to be produced. We all know that people take some time to produce written reports, and on a matter of this kind one would take particular care to get every word in the report right. Therefore, I was not wrong to raise the issue of time and cost.

On costs, we heard with great relief some of the remarks made by the noble Lord, Lord Faulks, about the possibility of using legal aid, but we know that, however generous the Government will be, not all the costs involved in this process will be defrayed from public funds. Therefore we do not want to produce a certain situation but, as a matter of fact, we already have a situation whereby if you have enough money you can go to Zurich and solve the problem that way. There is a significant gulf at present between those who have greater financial means and those who do not as regards the choice they have as they reach the end of their lives and how they want to go. We do not want to exacerbate that, and by increasing the cost we are doing so. We simply have to take that into account and it should not be frivolously dismissed, as it was this morning.

Secondly, I want to pick up the point made by the noble Baroness, Lady Grey-Thompson, a moment ago. I see no reason why palliative care should not be continued until the moment when the patient decides to exercise his or her option to terminate his or her life under the procedures laid out in the Bill, if it becomes law. I see no reason why there should be any need to withdraw palliative care some days or weeks beforehand. That seems to me a problem that should not arise at all.

Finally, I want to address the point made by the noble and gallant Lord, Lord Stirrup, whose main objection to the Bill seemed to be that the medical profession should not be involved in decisions about the deaths of patients. That is a very serious point; I made a point along those lines at Second Reading. At present, what most of us face if we have a slow death is palliative care, which generally ends up with palliative sedation. That means that the patient is put into a medically induced coma and all means of life support, including food and liquids—not invariably so but certainly in many cases liquids as well, so that the patient is dehydrated—are withdrawn, along with any life support in the form of oxygen and antibiotics. If the patient has had kidney failure and been on dialysis, that is withdrawn, so the patient dies from blood poisoning. The patient dies in a coma, which takes a great deal more than the 25 minutes that is the average in Oregon, when people use that regime for the right to die. It takes many days, in many cases; I have known at least one case when dehydration took two weeks to kill the patient, who of course did not awaken from the coma during the whole of that period. That is the reality: every day of the week and every hour of the day, doctors and nurses take decisions determining the timing and cause of their patients’ death. They are taking the decision to withdraw antibiotics and life support, putting the patient into a palliative coma.

It is the alternative to that regime that my noble and learned friend Lord Falconer is proposing this afternoon, so that people have a choice. The whole object of the Bill is to give the patient a vote. At present, in many cases, the patient does not even know about the decision being taken by doctors and nurses, which will determine the precise means and timing of their demise. Under the Bill, undoubtedly the patient would be in the front line and the driving seat, taking the key decision, and the doctors and nurses would respond to a decision made explicitly by the patient. That seems to me an enormous improvement. I hope that even those of us who do not want this particular regime and would not want to use it ourselves will not want to deny others the opportunity to have a choice between death in a palliative coma and death as it could be chosen under this Bill.

[Lord Cavendish of Furness (Con)]

My Lords, there seems to be developing some suggestion that people opposed to the Bill are introducing amendments simply to add time and cost and to make it unworkable. Would the noble Lord, Lord Davies, understand that those of us who were in principle opposed to the Bill from the very outset realise that it is intended to be compassionate—as we all feel compassionate—but just find it impossible to reconcile compassion and the objectives of the Bill with the necessary safeguards? That is at the heart of the whole matter.

[Lord Davies of Stamford]

I am grateful to the noble Lord for giving way, but I must intervene on him. I said nothing designed to impugn the good faith and sincerity of anyone in this House, let alone people who have gone to the trouble of producing these amendments. What I said was that, whether it is intended or not, many of these amendments would have consequences in terms of time and cost, and it would be wrong of us to underestimate those consequences—and certainly very wrong frivolously to dismiss that whole issue, as happened this morning.

--- Later in debate ---

[Lord Alton of Liverpool]

My Lords, given the advice of the noble Lord, Lord Newby, I will take the Committee to the arguments that would have been contained in the group led by Amendment 11. I think that was the guidance that we were just given. Noble Lords will realise that later amendments, Amendments 90, 92, 93, 105 and 122 will be reached when they get there. I will try to keep my remarks fairly short, because I think that the Committee is growing weary.

This is an important question, as are many of those that have been laid before the Committee today. It deals with the title of the clause, which is “Assisted dying”. I would argue that that is incorrect; it is assisted suicide. Those who support the noble and learned Lord’s Bill are at pains to tell us that assisted dying is not physician-administered euthanasia, whereby a doctor administers a lethal dosage of drugs to a patient, but physician-assisted suicide, whereby a doctor supplies a lethal dosage of drugs and the patient swallows or otherwise ingests them. I invite the Committee to look at the procedures set out in the noble and learned Lord’s Bill against these claims.

Clause 4 is perhaps the principal clause in this respect. Its subsection (4)(a) allows a doctor or nurse to “prepare” lethal drugs for self-administration. Presumably this means putting them into a form, such as a liquid, that the person can swallow—in a way, so far so good—but subsection (4)(b) then provides for a “medical device” to be put in place to aid self-administration. Again, I suppose that this is fair enough, although rather more precision is needed as to the object of such a device. That is why I have tabled an amendment to that effect.

Then we come to subsection (4)(c), which allows a doctor or nurse to,

“assist that person to ingest or otherwise self-administer”.

Here we really are on the borderline between physician-assisted suicide and physician-administered euthanasia. Subsection (4)(c) raises some important questions. Precisely what assistance, apart from preparing the lethal drugs and perhaps inserting a feeding tube, does “assist … to ingest” include? Does it include, for instance, holding a beaker to the lips of the person? It is not difficult to foresee a situation in which a doctor or nurse supplying lethal drugs under the terms of the noble and learned Lord’s Bill could cross the line, however innocently, between giving the patient those drugs and administering them. Subsection (4)(c) introduces a significant and dangerous grey area into the process of assisting suicide.

The noble and learned Lord has, I can see, recognised this ambiguity in subsection (5), which states that neither the doctor nor the nurse may administer the drugs to the patient, but it seems that as long as subsection (4)(c) stands, the ambiguity will remain. Moreover, subsection (5) says nothing about others administering the drugs, which brings me to my next concern. It is not just a matter of the doctor or nurse refraining from administering lethal drugs. There are others who might be inclined to do so, possibly from altruistic motives. It is therefore important that there is oversight by the doctor or nurse of what happens when the lethal drugs are delivered.

At this point, the noble and learned Lord’s Bill becomes rather convoluted. It states, reasonably enough, that the doctor or nurse must remain with the person to whom the drugs have been delivered until either they have been ingested and the person has died or the person has decided not to take them, in which case they are withdrawn. Yet subsection (6) defines remaining with the person as being,

“in close proximity to, but not in the same room as, the person”.

I understand and respect the noble and learned Lord’s wish to allow a person who is self-administering lethal drugs to die without strangers in the room but we have to balance that against the scope for others to intervene in a way that is not permitted in his Bill if the drugs are ingested without supervision.

We all heard the intervention that the noble Lord, Lord Jopling, put to my noble friend Lady Finlay much earlier in our debates about the circumstances in which people might die. I would have thought that the doctor’s presence need not be obtrusive. Apart from anything else, we have to allow for the possibility—this sometimes happens, according to the evidence from Oregon—that complications, such as vomiting or distress, arise when the drugs are taken. The doctor needs to be in the room if that happens.

For me, this is an issue that helps to distinguish between assisted suicide and assisted dying. If it is not the wish of this Committee that we should legalise outright euthanasia—I do not believe that it is—then it is very important that those clarifications are made. While I am unable to move Amendment 11, which was originally on the Marshalled List, that would have been its purpose. I am grateful to the noble Lord, Lord Newby, for providing us with the opportunity while debating the amended Clause 1, which I will not be opposing, to debate some of these questions.

[Lord Cavendish of Furness]

My Lords, with the leave of the Committee and with the agreement of my noble and learned friend Lord Mackay, I shall speak to Amendment 10 under the new regulation that we have. With that amendment, I would probably include Amendments 52, 164 and 170. When I left Cumbria, Amendment 70 was included in that grouping but it was moved while I was on the train. Before speaking further, I should perhaps declare an interest since, as I told your Lordships at Second Reading, I was co-founder of St Mary’s Hospice in Cumbria more than 20 years ago and, although I retired some two years ago as chairman of the trustees, I maintain my involvement as the patron. I have no professional qualifications in the field of palliative care, but my close association with a hospice over a good many years has done much to crystallise my thoughts on the matters under discussion in your Lordships’ House today. We have heard many deeply moving personal experiences, and of course I have my own, but nothing has moved me so much as witnessing not only the physical and mental relief of patients of the hospice but the sense of pure joy that the hospice movement sometimes brings through acceptance and the general level of care.

I feel sure that it is a view shared by both sides of this debate that anyone who is provided with assistance to end his or her life must understand clearly what he or she is doing; that much is surely beyond argument. However, as with many other aspects of the noble and learned Lord’s Bill, there is a significant gap between saying what should happen and putting in place provisions to ensure that it does. It is to fill such a lacuna in the Bill that I am proposing these amendments. Many of the arguments have been covered by my noble friend Lord Howard.

For a fully informed decision, the Bill as it stands requires simply that a person seeking assistance with suicide must be,

“fully informed of the palliative, hospice and other care which is available”.

But what does that mean? It means no more than that the doctor assessing the request must explain to the applicant for assisted suicide what the various end-of-life care options are. Such a doctor may well know little of what modern palliative care has to offer. It is a medical speciality that is making huge advances year by year, and it is unlikely that even a good doctor, with limited experience of end-of-life care, will be able to be sufficiently acquainted with the subject.

There is also a world of difference when making a decision between being told about something and having had first-hand experience of it. I offer this quote from the report of the Select Committee which, under the chairmanship of my noble and learned friend Lord Mackay, 10 years ago examined the Assisted Dying for the Terminally Ill Bill of the noble Lord, Lord Joffe. The committee’s report recorded evidence from Help the Hospices, as it was then called, as follows:

“Experience of ... pain control is radically different from the promise of pain control, and cessation of pain almost unimaginable if symptom control has been poor. On this view, patients seeking assistance to die without having experienced good symptom control could not be deemed fully informed”.

Specialist palliative care embraces the holistic care of the individual and those around them, considering not only their physical or medical symptoms, such as pain, vomiting or breathlessness, but also their spiritual, social and psychological needs. When distressing physical symptoms overwhelm a patient, they cannot see beyond the pain, the breathlessness, the anxiety or the vomiting. Effective symptom management enables a person to re-emerge and function once more, and to make informed choices regarding their future. Without such experience, my contention would be that the applicant’s capacity to make informed choices is seriously impaired.

The chief executive and the medical director of the hospice of which I have the privilege of being patron do not, as far as I am aware, take a position either for or against the Bill. However, they agree with this amendment and have this to say:

“We see every day how very limited is the understanding and knowledge of Palliative care services among both patients and professionals. Most people resort to these services only when they have a need of them”.

This view of course contradicts that expressed earlier by the noble Baroness, Lady Murphy, earlier in the debate.