Assisted Dying Bill [HL]

Lord Etherton Excerpts

2nd reading
Friday 22nd October 2021 Lords Chamber

[Lord Etherton (CB)]

My Lords, I presided in the Court of Appeal on the case of Noel Conway. We followed the Nicklinson decision, to which my noble and learned friend Lord Mance referred, and we decided that, although he had set out a framework very similar to that to be found in the present Bill, it was a matter for Parliament to decide the principles and the policy behind assisted dying. I now find myself in Parliament itself and feel I cannot, as it were, deviate any further and must nail my colours to the mast.

I support the Bill for a number of reasons, but I wish to concentrate and focus on the legal analysis. First, inevitably, as many have said very eloquently, the starting point is that a right to request assisted dying in the circumstances set out in the Bill is an exercise of personal autonomy. Personal autonomy is an inseparable aspect of human dignity, which has been at the heart of the western concept of human rights since the United Nations Universal Declaration of Human Rights in 1948.

Secondly, a person of full mental capacity, who has not been unduly influenced by others, has an absolute right in common law to insist on the withdrawal of treatment. This prevails over the desire of medical and nursing professions to keep the patient alive. It makes no difference that, in the eyes of others, the decision to insist on withdrawal of treatment is unwise. In those circumstances, as my noble and learned friend Lord Mance said, as suicide is no longer a crime, I suggest that it defies logic to preclude a patient, with appropriate safeguards, from seeking assistance to terminate his or her life.

Furthermore, thirdly, difficult decisions already have to be made in relation to termination of the life of incapacitated individuals. There are many decided cases on this, and often the court, usually the Court of Protection, has to intervene in the event of disagreement between the treating medical professionals and the patient’s family. The overriding principle is that a decision should be made in the best interests of the incapacitated patient, but that is a many-faceted concept and includes, in this context, what the patient himself or herself would have wanted, had they had capacity. This situation presents at least as much risk as is feared in the present Bill, with family and friends being able to influence the decision. Just as much as an improper motive could be ascribed—so it is said—in the case of the present Bill, so, in theory, at any event, such an improper motive could apply in such a case. But we have seen no evidence of such motives and no law reports to suggest that that is a common cause for concern at all, or indeed any cause for concern.

Many withdrawal of treatment cases raise difficult issues, such as that of Anthony Bland, and the conjoined twins case. Those were not strictly assisted dying cases, but the moral and ethical difficulties are no less significant than in cases to which the Bill would apply. I suggest that there is an obvious flaw in logic and consistency in making such early termination of life possible for incapacitous people but not permitting a person of full capacity, free from undue influence and properly informed, to request assistance in dying. Inconsistency in the application of the law heralds injustice, and I therefore support the Bill.