Assisted Dying Bill [HL]

Lord Howarth of Newport Excerpts

Friday 7th November 2014 Lords Chamber

[Lord Howarth of Newport (Lab)]

My Lords, before we proceed any further—

[Lord Newby]

My Lords, noble Lords will have seen an unusual amount of toing and froing, as there has been a certain amount of confusion about the consequences of the pre-emption of several amendments as a result of the amendment passed earlier. Having spoken to noble Lords who have amendments affected by that pre-emption, or who have amendments that are due to be debated, I propose that for the rest of the afternoon we proceed as follows. First, the noble Lord, Lord Alton, should speak to his Amendment 11 as part of the debate on whether Clause 1 should stand part. If any noble Lord wants to speak to any of the amendments that were dropped, as it were, as a result of pre-emption, I suggest that they do so at the conclusion of that debate.

The amendments covered by pre-emption were the initial amendments in those three groups, Amendments 8, 10 and 11. The later amendments in those groups, Amendment 69 and onwards, Amendment 25 and onwards and Amendment 90 and onwards could be debated later, when we get to them. I propose that when we have finished the debate on whether Clause 1 should stand part, in the light of the fact that, by common consent, the debate on the following group will be very long, I adjourn the House.

--- Later in debate ---

[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.

[Lord Avebury]

I wonder whether the noble Lord has ever looked at the Macmillan Cancer Support site, on which there is a forum for people with incurable cancer. If he looks on that site, he will find that no patient has ever expressed the view that they are a burden on the National Health Service. It has never come up at all.

[Lord Howarth of Newport]

I will certainly look at that site, but I wish I could be as confident as the noble Lord is on that point.

I will conclude by saying that I think it is going to be very difficult for doctors ever to be certain that a decision has been arrived at on a truly voluntary basis, freely. It will be equally difficult for the judge that the noble Lord, Lord Pannick, has brought in to the proceedings. As the Minister, the noble Lord, Lord Faulks, put it to us earlier, there is a risk that pressures and duress will never be wholly eliminated.

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[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.

[Lord Howarth of Newport]

Will my noble and learned friend say a word or two about how he envisages that the judge or the doctors should know, ascertain and satisfy themselves that the decision has been taken voluntarily?

[Lord Falconer of Thoroton]

They must conduct in-depth discussions with the patient and the other doctors. The judge must call such evidence as he or she considers appropriate to be satisfied—the burden is to be “satisfied”—that the decision is voluntary. “Voluntary” means “this is what the patient wants”: he or she is not being forced into it either by coercion or by the sort of guilt that we referred to earlier. Although that will give rise to complex issues, it is not a job that is beyond judges or, indeed, some doctors.

The noble Baroness, Lady Howe of Idlicote, said that a person should have to be resident for a year immediately before the declaration is agreed. I think that is the Bill’s effect, because as it is drafted it says,

“on the day the declaration is made … has been ordinarily resident in England and Wales for not less than one year”.

The patient has to have been here for a year. However, she has a second point, which is that it should be two years rather than one. Until the noble Lord, Lord Howard, suggested it, it had not occurred to me that this was about immigration. I had thought it was about a desire to prevent tourism for this purpose, which is how the noble Baroness put it. I think it is quite difficult to judge between one year and two years. My inclination is to stick with one year, but I will take soundings to see whether two years seems right. People coming to be resident for a year before the declaration is made looks like considerable forward planning. I am not minded to accept her amendment.

The noble Earl, Lord Listowel, made a point about the 18 to 25 year-old age group. I completely agree with him that they need especial care, but this right is for anybody aged over 18. I do not think it should be taken away from them. We need to consider what should go into a code of practice to ensure that the particular needs of 18 to 25 year-olds are borne in mind.

I think that has dealt with all of the amendments that were suggested.