Assisted Dying Bill [HL]

Debate between Lord Falconer of Thoroton and Lord Faulks

Friday 16th January 2015 Lords Chamber

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, it is not a question of sympathy. As the noble Lord well understands, it is a question of not committing a future Government as to how they would respond to this position.

It might help if I clarify that the scope of civil legal aid is set out in the LASPO Act 2012. It provides that civil legal services are to be made available subject to satisfying the means and merits and the matter or type of case being within the scope of the civil legal aid scheme. In order to bring a matter within the scope of the civil legal aid scheme, an amendment to Part 1 of Schedule 1 to LASPO would need to be made. The power to make such an amendment by way of affirmative secondary legislation is already set out in LASPO. It would therefore be unnecessary and not usual practice for separate provision to be made in other primary legislation to provide such a power.

That is the position quite apart from the question of exceptional funding, which is concerned, as I said when we were last in Committee, with matters where it could be said that there was a violation of the convention right or, alternatively, a violation—although I do not think it is relevant—of some provision of EU law. That remains an uncertain provision, but it could potentially be relevant, so that is my answer.

[Lord Falconer of Thoroton (Lab)]

I am grateful to the Minister for his clarification saying, in effect, that there is already power to make sure that this is covered so far as legal aid is concerned under existing legislation. Three points are worth making. First, the key point is that anyone in the situation of considering an assisted death should feel that they would have access to proper legal advice so that the application would not appear to be a burden. Secondly, I completely agree with the noble Lord, Lord Phillips of Sudbury, that it is difficult to identify what an individual case might cost and involve. Some cases will involve no opposition, it being completely agreed and clear that this is the right course to take but nevertheless it should still go to the High Court. It would be very helpful to have a lawyer to help the family through that process. Others may involve more. I suspect that most cases would be on the uncontested end of the spectrum, but we have to provide for the other end of the spectrum as well.

I submit that the appropriate course to take would be that this is covered by legal aid. We should also try to build in easy access in hospitals and with doctors so that people know where they can go to get this help. The key thing is that the family should know that if they need legal help they can get it, it can be obtained easily and quickly and if they cannot afford it it will not cost them anything. I agree in principle with the approach that the noble Lord, Lord Phillips, is taking. I suspect that it will not need an amendment to the Bill.

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[Lord Faulks]

In this context, it is for the Committee to consider the appropriate term. I decline to go any further.

[Lord Falconer of Thoroton]

My Lords, this has been a very impressive debate. I completely agree with what the noble Lord, Lord Faulks, said about it being in the right tone.

I shall make three points. First, I acknowledge the speech by my noble friend Lord Cashman, which was of immense power and immense pain. He made the incredibly important point that in the circumstances in which he found himself, he was very clear about the distinction between assisted dying and suicide. I understand the difficulty and the pain that must have been involved in making that speech. All Members of Committee appreciate that.

Secondly, there are two separate groups in this group of amendments. One group is those amendments which wish to change various bits of the wording of the Bill to refer more often to the word “suicide”. Not one of those points has been pursued in detail except for the point made by the noble Lord, Lord Mawhinney, as regards Clause 4, in which he sought to suggest that the use in the draft Bill of the word “self-administration” was in some way euphemistic. It was not. It was used because a vital brick in the Bill is that the person has to do the last act to himself or herself. They have to do it to make clear that it is not euthanasia. That is why that word is there; it is not in any way intended to be euphemistic.

As regards the other matter, the Title of the Bill—which is the key point in the debate—I have thought very carefully about what the Bill should be called. I am always wary when I think to myself, “What will other people think I mean?”. When I hear noble Lords speculating about what the public may think, I am always rather wary; all we can do is to go by the words.

I have used the phrase “assisted dying” for three reasons. First, it is accurate. The purpose of my Bill as drafted is to:

“Enable competent adults who are terminally ill to be provided at their request with specified assistance to end their own life”.

That is the wording of the Long Title. Nobody in this debate has questioned its accuracy. What is the right way to convey a Long Title in a short title? In my view the right and most accurate way is by using the words “assisted dying”. That is why, after very considerable thought and having discussed it with people—not just people in favour but also lawyers—I wished to convey accurately what the position was.

The second reason is that to call the Bill “the Assisted Suicide Bill” would, as a matter of law, give the wrong impression. The words “assisted suicide” would give the impression that assistance could be given in any category of suicide. The third reason was that touched upon by the noble Lord, Lord Purvis, who said that those engaged in helping people as regards suicide are very antipathetic to the words “committing suicide”. There is a moral opprobrium attached to it. For those three reasons I decided that the right wording was “assisted dying”. I urge the Committee to accept the Title as it is.

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[Lord Faulks]

My Lords, I do not have anything to add on that particular point.

This has been an excellent debate which has gone to the heart of some of the most difficult parts of the Bill. Why is six months the right period? Of course, we have heard plenty of informed opinion about how difficult it is to make a prognosis of any accuracy. In Amendment 21, a period of six weeks is suggested as a better period. It may be that that enables a clearer prognosis to be given, but it seems extremely short for the various practicalities and safeguards to give the Bill any real meaning. Inevitably, six months is something of a compromise; the question is whether it is a satisfactory compromise. It will not, of course, suit everybody.

It is something of an irony that one of the spurs behind this Bill and our debates is the Supreme Court’s decision in Nicklinson, which was concerned with the desire of two men with locked-in syndrome—an almost totally paralysing but not terminal condition—to request assistance to die. The Committee might like to be reminded that the President, the noble and learned Lord, Lord Neuberger, commenting in the judgment on the Falconer commission and the six-month period, said:

“That would not assist the applicants”.

I am sure that that is not in dispute. He went on:

“Further, I find it a somewhat unsatisfactory suggestion. 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”.

These are very difficult questions and I look forward to hearing the answer from the noble and learned Lord.

[Lord Falconer of Thoroton]

I am again grateful for a very good debate. I agree with the noble Lord, Lord Faulks, as ever, that this goes to important issues in the debate. I accept the definition given by the noble and right reverend Lord, Lord Harries, of these issues, which go to the safeguards.

In looking at the safeguards, it is important to put into context the safeguards in the current draft of the Bill: two doctors, independent of each other, certifying that the patient has a terminal illness which they reasonably expect will end their life within the next six months; the two doctors, independent of each other, certifying that the person has made a voluntary decision, that they have the capacity to make that decision and that it is their firm and settled intention that they wish to take their own life in those circumstances; and that decision is not to be given effect without the consent of the Family Division of the High Court of Justice. Those are the safeguards.

Let us look at the proposals in the light of those existing safeguards. First, the noble Lord, Lord Carlile, proposes, in effect, that a person must have as one of the doctors a general practitioner with whom he or she has been registered for the last six months—I understand that registration is a concept that only has relevance to a general practitioner. That proposal, as the noble Baroness, Lady Brinton, has pointed out, appears not to deal with people in the following circumstances: somebody who, for example, moves to live near their relatives, then gets ill and is not registered for six months; somebody whose general practice, for example one run by a sole practitioner, packs up; or somebody who, for example, has a general practitioner who has a conscientious objection to the use of the provisions of the Bill.

If Parliament were to pass a Bill giving people the right to an assisted death, I venture to suggest that it would be a very odd conclusion that your ability to access that right would depend on the adventitious circumstance of whether, for example, you had moved one month before to be near your son and daughter, as my own stepmother did. That does not seem a sensible basis. However, a very powerful thread in this—which has been mentioned in particular by the noble Lords, Lord Cormack and Lord Empey—is the idea of a doctor who does not, as it were, properly consider the merits of an individual case but is, as suggested by the noble Lord, Lord Empey, available for hire. That is something that I would wish to avoid as much as possible. I venture to suggest that there may be three ways to deal with it.

First, I would expect the medical bodies to produce guidance. That can be given effect to, because a High Court judge would have to be satisfied that an appropriate process had been gone through. In addition to that, I note that, according to Clause 3(7), the independent doctor has to be “suitably qualified” in that he,

“holds such qualification or has such experience in respect of the diagnosis and management of terminal illness as the Secretary of State may specify in regulations”.

I would anticipate that the Secretary of State would be able to make in regulations provisions that make it clear that the independent doctor could not be the sort of doctor that the noble Lords, Lord Cormack and Lord Empey, and others referred to. If there are better ways of dealing with the doctor for hire situation, I am very willing to hear and discuss them and bring them forward at the next stage, but I am absolutely clear that the way in which the noble Lord, Lord Carlile, is suggesting it be dealt with is unworkable and unfair and cuts at the heart of the Bill.

Assisted Dying Bill [HL]

Debate between Lord Falconer of Thoroton and Lord Faulks

Friday 7th November 2014 Lords Chamber

[Lord Faulks]

This has been another useful and well informed debate, following on from the first group. I do not think that it is necessary for me to add anything from the point of view of the Government. The noble Baroness, Lady Finlay, made a particularly helpful clarification about DNR notices. The difference between DNR and DNACPR is probably insufficiently understood and I think that the House is grateful for that clarification. One final thing I should say, in responding to what the noble Lord, Lord Davies, said about legal aid, is that nothing I said about exceptional funding, I am glad to say, was wrong, it having been reviewed. However, as yet no assessment has formally been done on availability to cover this situation. I am sure that the House will understand that.

[Lord Falconer of Thoroton]

I understood that. I do not think that the noble Lord, Lord Faulks, suggested anything to the contrary in his previous answer. We went over quite a lot of this ground in the first debate. Like the noble Lord, Lord Faulks, I agree that this has been a useful debate in a number of respects. However, the key point in the debate is the factor added by the judicial model proposed by the noble Lord, Lord Carlile. In addition to provisions required to ensure that the person has a firm and settled view and that he or she has the mental capacity, there is an additional very significant requirement—namely, that to refuse an order would amount to a breach of both Article 3 and Article 8 of the European convention.

In effect, the noble Lord, Lord Carlile, is suggesting that the judge should make a judgment about the quality of the life of the person who has applied and, in particular, whether the quality of life of the person applying in effect constitutes torture, inhuman or degrading treatment. Only when satisfied of that can the judge make an order under the proposal of the noble Lord, Lord Carlile. I totally reject that approach as being inconsistent with the essence of the Bill, which is subject to appropriate safeguards. It is not for a court to make that sort of judgment; it is for the individual. The purpose of the court’s involvement is to ensure that there has been no undue pressure and no lack of capacity in reaching that conclusion; it is most certainly not to make the sort of judgment that the noble Lord, Lord Carlile, suggests. That was my understanding from the way in which the noble Lord put his case in the first debate and it is my understanding that the House has rejected that approach.

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[Lord Faulks]

My Lords, it is a fundamental principle of the Bill before us that a person seeking assistance to end his or her own life should have the capacity to make such a profound decision. That is at the centre of the Bill and why it has taken up so much time—quite appropriately—in the course of this debate. Some of the amendments in this group seek to include capacity among the eligibility criteria in Clause 1. Noble Lords may see some merit in that approach, albeit that the issue of capacity is addressed in Clause 3.

It is clear, however, that your Lordships are concerned to ensure that sufficient safeguards are in place properly to assess a person’s capacity to make these very difficult decisions. It is of course right, as has been observed during this debate, that capacity can vary over a period of time and that assessment can be complicated where a person has both a physical and a mental illness. We have heard in particular how depression can be both difficult to diagnose and can fluctuate. Therefore, several assessments over a period of time may be necessary adequately to assess capacity. That leaves aside the question of a change of mind, on which certain noble Lords were somewhat at cross-purposes. However, it nevertheless remains an important issue, the answer to which seemed to be given, I respectfully suggest, by the noble and learned Lord, Lord Mackay, which is that the reversibility of the decision is covered by Clause 4(2)(c).

On the question of mental capacity and the relationship between the Mental Capacity Act and the Bill, my noble friend Lord Swinfen correctly reminded us that the Mental Capacity Act presumes capacity. However, that Act emphasises that capacity is issue-specific. As I understand it, the purpose of the Bill is to identify the particular issue in order for it to be determined whether the individual has the capacity to make that particular decision. What we are asking here is: are there adequate safeguards to enable that decision and the capacity to make it to be adequately assessed?

I will of course consider the point made by the noble Lord, Lord Hunt, about trying to give further guidance. However, at the moment I am not convinced that there is any tension between the Mental Capacity Act and what the Bill does. Whether the House generally considers that the safeguards are adequate is a different matter and one on which there can reasonably be debate.

However, it is clear that there are differences of view about who should carry out the assessment, how many people should do it and whether there needs to be input by more than one person across a range of professions. Psychiatrists, of course, have been identified as key in this, but social workers are also experienced in assessing whether coercion or duress is being brought to bear. Increasingly, they are being asked to carry out capacity assessments for the Court of Protection, and they also play a leading role in safeguarding a person who may be at risk of harm from family or friends. The noble Baroness, Lady Hollins, was right to emphasise the importance of an assessment of the absence of mental disorder being critical when considering capacity. Your Lordships will have to reflect on whether there is a need for specialist assessment of capacity beyond that being carried out by the attending doctor and the independent doctor and, if so, what the requirements should be.

Finally, your Lordships may think that the noble Lord, Lord Griffiths, was right when speaking not altogether flippantly of the capacity of decision-makers to remind us that there is fallibility in experts just as there is fallibility in judges.

[Lord Falconer of Thoroton]

I am obliged to everyone who has taken part in this important debate. Capacity is central to the Bill. May I indicate how the Bill operates, so that we can then address the question of whether the safeguards are sufficient? I completely agree with the analysis given by the noble Lord, Lord Faulks, as to what the question for us is.

What the Bill requires before the prescription can be given is that the attending doctor and the independent doctor have separately examined the person and the person’s medical records and each, acting independently, must be,

“satisfied that the person … has the capacity to make the decision to end their own life”.

In addition, as a result of Amendment 4, which was made this morning, a justice of the High Court of Justice sitting in the Family Division must confirm that he or she is satisfied that the person has the capacity to make the decision to end his or her own life. Capacity is defined by reference to the Mental Capacity Act, in Clause 12. The noble Lord, Lord Faulks, is right in saying that that gives rise to no tension; how it operates is that, in considering whether the individual has capacity, the doctors and then the court ask themselves whether that individual has a sufficient degree of understanding and judgment to take this obviously very momentous decision. That means an understanding of what the decision is and what its consequences are. That is how the law defines capacity; it is a matter to be considered on a case-by-case basis.

Are the safeguards sufficient? The amendments identify a number of possibilities. First, I take the amendments proposed by the noble Baroness, Lady Hollins. She suggests that there must be a psychiatric assessment in every single case. That should be so, she says, even if the two doctors are satisfied and the judge is satisfied. Then there is the Butler-Sloss/Colville amendment, to call it so colloquially, which says that only when you are not sure and there are doubts do you make the assessment. The Murphy amendment also says that only if you have doubts should you have a psychiatric assessment.

My own view on this, although I need to consider it very carefully, is that if you have any doubts at all you could not be satisfied, whether you were the doctors or the court. In those circumstances, you might think that the case was much too doubtful and stop it straightaway, or you might have doubts because you do not know and are not qualified enough, so you should refer it to a psychiatrist. Like the noble and learned Baroness, Lady Butler-Sloss, the noble Viscount, Lord Colville of Culross, and the noble Baroness, Lady Murphy, I am not inclined to say that you have to get a psychiatric assessment in every single case. In my judgment, there will be cases where it is clear that there is no psychiatric element involved and it is the right thing to do because of the particular circumstances —and the idea that someone has to get a psychiatric assessment may look, on the facts of the case, wholly inappropriate.

My inclination is to consider the amendment proposed by the noble Baroness, Lady Murphy, as the right one. I also need to consider whether one needs to put in the Bill the sort of process that I have indicated, which reflects to some extent the approach of the noble and learned Baroness, Lady Butler-Sloss, and the noble Viscount, Lord Colville. On the basis of the debate that we have had, I think that is the right way to go but I will reflect on what has been said and consider the extent to which this needs to be in the Bill.

I ask noble Lords to remember that, subsequent to their tabling their amendments, the Pannick amendment, if I may call it that, has come in, so a judge will consider this issue. He or she will consider not just whether the right process has been gone through but will have to be satisfied—it is a primary question of fact for the judge—that the person applying to get the prescription has the capacity to make the decision, so you have that final safeguard. If the judge is not satisfied or thinks that a psychiatrist should be involved, there is the protection. I suspect that we should adopt something along the lines of the Butler-Sloss/Murphy approach. The question asked by the noble Lord, Lord Mawhinney, was answered by the noble and learned Lord, Lord Mackay of Clashfern. If the noble and learned Lord says what my Bill means, I accept his comments readily and enthusiastically.

The noble Lord, Lord Carlile, drew our attention to proposed new paragraphs (a) and (d) of his Amendment 65. As I understand proposed new paragraph (a), you cannot be satisfied that the person has capacity if he or she is,

“suffering from any impairment of, or disturbance in, the functioning of the mind or brain … which might cloud or impair his or her judgement”.

Again, I think that is going too far. What happens if someone has a brain tumour that might impair their judgment but the doctors are satisfied that that person’s decision to take their own life is one that they have reached completely aware of all the circumstances? To take another example, suppose someone is depressed because they are going to die imminently but the doctors and the judge are satisfied that, although the person is depressed, which might be an appropriate response to what is happening, they are absolutely clear that that is what they want to do. Therefore, I think that the amendment goes too far. Proposed new paragraph (d) of the amendment states that the capacity of an applicant,

“is not the subject of influence by, or a sense of obligation or duty to, others”.

With respect, I do not think that comes under “capacity” at all because capacity is about whether someone can make a judgment. A person can be completely able to make the judgment and conclude that they hate being dependent on other people. You might think that that is inappropriate and be guided by what the noble Lord, Lord Deben, says, but you certainly have the capacity to do it, so, although we should consider this under other headings, I honestly do not think that is a capacity issue.

The noble and learned Baroness, Lady Butler-Sloss, indicated three other points. First, she did not like the word “commensurate”. I have not used that word; it was the noble Lord, Lord Glenarthur—take it up with him. Secondly, she was keen—in my view, rightly—that the word “satisfied” should be used, as it is in her amendment. The requirement for the two doctors is that they must be “satisfied”. The requirement in the amendment of the noble Lord, Lord Pannick, is that the judge must be satisfied, so I agree with her and I think that that point has been met. Her third requirement was that of training. Under the Bill, the second doctor has to be an independent doctor who is,

“suitably qualified if that doctor holds such qualification or has such experience in respect of the diagnosis and management of terminal illness as the Secretary of State may specify in regulations”.

I am sympathetic to the noble and learned Baroness’s point and I think that it would be appropriate for certain training requirements to be met before you can be an independent doctor in this context. Therefore, I hope that I have dealt with her point.

I have dealt with Amendment 54 in the name of the noble Baroness, Lady Murphy. As regards Amendments 71 and 151, the noble Baroness, Lady Hollins, made a point that I had not seen reflected in her amendments but I am sure that is my fault—that is, what is the position of somebody who has been sectioned under the Mental Health Act 1983? I have assumed that they would not have capacity. It is not specifically raised as I read any of her amendments. However, I will need to consider that important point. My immediate assumption is that, if you are sectioned, you could not possibly have the capacity to make this decision but we need to look at the position in relation to that.

I have dealt with all the specific points made on the amendments. The debate was fascinating, moving and gripping. One of the great temptations in these debates is to veer off from the amendment, because we are all so gripped by this subject, and go into issues that are slightly off piste. I know it is done with the best motives but I am keen that the Committee should give everyone’s amendments a proper shot. I am trying to be disciplined. I ask very respectfully, because the amendments are fascinating, can we try to focus a bit more on the amendments?

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[Lord Faulks]

My Lords, this last group has engendered a wide-ranging debate which has called for considerable mental agility on the part of the participants. They have shown themselves well able to do so. I could not attempt to summarise all the issues that have been raised, but well raised they have been, and they have given the noble and learned Lord, Lord Falconer, a great deal to consider.

I shall deal with one point only. The noble Earl, Lord Listowel, was concerned, as he always is—much to the benefit of the House—with those aged between 18 and 25, who have not been the main focus of our attention today. I can tell the Committee that the General Medical Council’s core guidance for all registered doctors on good medical practice makes clear that a doctor,

“should make sure that arrangements are made, wherever possible, to meet patients’ language and communication needs”.

This will include consideration of the age of the patient.

[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.