Assisted Dying Bill [HL]

Lord Faulks Excerpts

Friday 7th November 2014 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, it is not for the Opposition Front Bench to state an official view as to what action should be taken in relation to these sets of amendments. It is up to our own individual consciences to make our own minds up. However, it is an opportunity for me to say to the Government that it is important that we have sufficient time to debate this important Bill. I hope the government Chief Whip will take to heart the comments that have been expressed—by noble Lords who have different views but who certainly think that we should have further time to discuss this.

Although the noble Baronesses, Lady Wheatcroft and Lady Hollins, and my noble friend Lord Campbell-Savours expressed doubts about bringing the courts into this process, essentially these two sets of amendments, although they differ about the role of doctors, bring the courts into the process, and can be said to respond to the debate at Second Reading about the need for safeguards. Given that, I want to put two points to the Minister, which I hope he will be able to respond to.

The first is about the capacity of courts to deal with applications in a timely manner. The noble and learned Baroness, Lady Butler-Sloss, spoke from great experience and she was clear that the courts would be able to respond very rapidly. I think she said that they would be able to deal with the process in a matter of 24 hours. Of course, we do not know how many cases are likely to be brought. I hope the Minister will be able to say a little about how the Government would respond in relation to capacity in the courts if it were needed.

The second point I want to put to the Minister is about the financial support available to persons who would go to court under the process envisaged in either set of amendments. It surely must be open to everyone to be able to go to court without fear of the financial consequences. We know that legal aid has been heavily reduced in previous years. I ask the Minister to reassure us that if either set of amendments appeared in the Bill, and it was eventually enacted, that public funds would be available to allow people to go to the courts.

It is important that the Minister clarifies these points as clearly they have an important bearing on the attitude that noble Lords may take to these amendments.

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

My Lords, I congratulate the noble and learned Lord, Lord Falconer, on steering his Bill to a stage that no previous Bill on this difficult and controversial issue has reached. I know he will have listened very carefully to all contributions from your Lordships and that he will respond carefully to this amendment and to the others that will be debated here today. The number of amendments tabled is testament to the careful scrutiny of legislation that is characteristic of this House. The debate on this Bill at Second Reading was much admired outside the House, as well as within it, of course. The respect that was shown by those with very different views was remarkable for its lack of rancour. That has been echoed today and I am sure it will continue to be the case throughout the debate, whenever it concludes.

It may be helpful, in order to save time later—and perhaps your Lordships’ patience for listening to me—if I make some more general remarks while addressing this group of amendments. As I said at Second Reading, the Government believe that any change to the law in this sensitive area is an issue of individual conscience and a matter for Parliament to decide rather than one for government policy. It follows that the Government will take a neutral position in today’s debate and that these Benches will have a free vote should the House divide.

Inevitably, the extent to which I may usefully contribute to the debate is limited from a position of neutrality. It is for the noble and learned Lord, Lord Falconer, to respond to the amendments moved, and to respond as appropriate on whether the clause should stand part of the Bill. My role, as I see it, is to assist the Committee in any way that I can without compromising the Government’s position, and to draw the attention of the Committee to any discrepancy that I might identify at this stage between the intended purpose and actual effect of any amendment.

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[Lord Carlile of Berriew]

I am very glad to answer the noble Lord’s two questions. To the first, there is a very straightforward answer: I do not anticipate any difficulty whatever. The medical profession will prioritise like the rest of us when needs must. So far as the chief coroner’s role is concerned, I anticipate the chief coroner receiving not only the independent expert’s report but possibly other representations and determining whether an inquest should take place in a particular case. I anticipate that there would be very few cases anyway if the recipe that I have proposed was brought into effect and I doubt that there would have to be any inquest in those cases. However, we have to keep open the possibility of an inquest, and it is much tidier to have the chief coroner decide whether there should be an inquest than, for example, to have judicial review proceedings arising as a result of the complaints of affected persons. I think that these are both very quick routes to deal with simple issues that might arise.

[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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Yet the Bill as it stands does not provide for mandatory specialist assessment of decision-making capacity. It leaves it all to the attending doctor to decide—usually a GP who will almost certainly have had no psychiatric training. I gather that, until recently, many medical schools taught no psychiatry at all. The Bill’s supporters argue that there will be codes of practice to guide doctors on how to go about making these assessments—

[Lord Faulks]

My Lords, I am reluctant to interrupt the noble Lord, but the noble Lord will see the time.

[Lord Swinfen]

I am sorry; I did not hear what the noble Lord said.

[Lord Faulks]

I suggested that he look at the Clock.

[Lord Swinfen]

I have only a very short while to go.

I have no problem with codes of practice and I would expect that, if the amendment in the name of the noble Baroness, Lady Hollins, or a similar amendment is accepted, there will be a need for detailed procedures to be included in codes of practice to give effect to it. We cannot in this House agree to legalise assistance with suicide simply on the basis that others will decide what safeguards there should be. We need to see and to approve at least the outlines of those safeguards before we can responsibly take decisions on changing the law.

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[Lord Hunt of Kings Heath]

My Lords, I sense that the House would like to make some progress. I will put a simple point to the Minister. He will know that the issue of capacity is clearly critical to our consideration of the Bill and he will have heard that we have had a number of amendments that seek referral on the question to a psychiatrist or other appropriate specialist. The noble Baroness, Lady Hollins, raised issues about the interconnection between the provisions in the Bill and the Mental Health Act and the Mental Capacity Act. My simple request to the noble Lord—and I do not suggest that he does it from the Dispatch Box—is that the Government help noble Lords with their analysis of the interrelationship between the two Acts and the Bill. That would be very helpful for the next stage of the Bill.

[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.