Assisted Dying Bill [HL]

Lord Hunt of Kings Heath Excerpts

Friday 16th January 2015 Lords Chamber

[Lord Phillips of Sudbury]

The short answer is no. Lawyers charge very different amounts. A city lawyer charging £500 or £700 an hour is rather different from a country lawyer charging £100 or £200. It will also depend, as I said, on the complexity, but one is talking of thousands, not hundreds, of pounds. That is about the best I can do on that. However, as I said, I hope that the principle will commend itself to the Committee and that necessary changes to the drafting of my amendment can be dealt with prior to the next stage. I beg to move.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I was rather taken aback by this being such a short debate. I very much welcome the noble Lord’s amendment. We discussed this matter at a little length on the first day of Committee. As he said, applications to the High Court in the circumstances of the Bill, if enacted, could, but not always necessarily, involve complex procedures. The noble Lord is not able to quantify the cost and that is entirely understandable. However, I recognise that for any Government there is then a problem in not knowing that potential cost.

On the first day in Committee, I thought that the Minister was reasonably sympathetic to the point. He referred to the LASPO Act, which has,

“an exceptional cases provision which deals with questions of the Human Rights Act and the convention requirements”.—[Official Report, 7/11/14; col. 1879.]

He said that that was as far as he could then go on the question of legal support. Without entering into any question of financial commitments, which will no doubt haunt both sides of the Committee, I just ask whether he can go a little further and become a little more sympathetic on this issue.

[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.

--- Later in debate ---

[Lord McColl of Dulwich (Con)]

My Lords—

[Lord Hunt of Kings Heath]

My Lords, this has—

[Lord McColl of Dulwich]

I have been trying to intervene for some time. I strongly support the amendment on terminal illness tabled by the noble Baroness, Lady Finlay, but noble Lords will be pleased to know that most of what I was going to say has already been said so I will not repeat it. It was said very ably by the noble Baroness, Lady Campbell of Surbiton, for whom I have the greatest admiration and with whom I have worked for many years.

There is an aspect of the definition of terminal illness that I should like to deal with. Under the benefit rules, an attendance allowance or a personal independence payment can be made under special rules if somebody has a terminal illness. The definition is therefore important. My understanding is that, for the purposes of receiving one of those benefits under the special rules, someone is defined as being terminally ill if they have,

“a progressive disease and his death in consequence of that disease can reasonably be expected within 6 months”.

This definition is set out in Section 66 of the Social Security Contributions and Benefits Act 1992. Are we going to say that anyone who receives one of these benefits would be eligible for assisted suicide on the basis of their physical health? I raise this as a genuine question because the Personal Independence Payment Handbook, issued in August 2014, also states:

“Awards made under the special rules for terminal illness will be for 3 years”.

This seems to be rather at odds with the expectation that the person is reasonably expected to die within six months.

To get this benefit, individuals have to get a completed DS 1500 form from their doctor, as has been mentioned. In a forum discussion on the internet, many of the individuals who got the benefit as a result of this form were definitely of the view that they would be living for more than six months. I am concerned that in future they might be encouraged to consider assisted suicide because they would fall within the definition of the Bill. The form was also referred to in the House of Lords report on the Bill of the noble Lord, Lord Joffe. I quote one doctor, who said:

“A simple bit of practical evidence is one of the benefit forms that are filled in for patients assigned to the doctor thinking that the patient has six months to live. I would not like to count how many of those forms I have signed in my life for patients still living after a year, eighteen months or even longer”.

Another doctor giving evidence to that committee about decisions on who had a terminal illness said that,

“doctors make arbitrary decisions about when a patient has reached a terminal stage. This can be when the patient is discharged from specialist care, when the patient moves from a curative state to a palliative state; some just use the position when what is known as the DS 1500 Form is actually prescribed, or some just use the point where patients have become bed-ridden or immobile”.

Surely we need something far more rigorous than someone being “reasonably expected” to die within six months when the consequence is that their life is actually ended. I fully support Amendment 20 of the noble Baroness, Lady Finlay, to remove the word “reasonably”.

--- Later in debate ---

[Lord Warner]

My noble friend referenced me in saying that doctors were overoptimistic. What I said was that one review of evidence has found that fewer than one in four patients outlived the prognosis when their clinicians predicted survival of six months or less. I said that that research rather suggests that doctors have a tendency to be overly optimistic about how long people will live, because it shows that when people thought they had six months to live, actually a large number of them failed to get through the six-month period.

[Lord Hunt of Kings Heath]

My Lords, like the Government, the Opposition are not expressing a view on the Bill, and we have a free vote on this side of the House. I ask the Minister to help me with an interpretation of the meaning of Amendment 13, particularly in relation to the meaning of the provision that one of the registered medical practitioners has to have had the person registered with them for at least six months. Does he take that to mean that a patient has to be registered with a general practitioner for the provisions of the Bill to apply? I am assuming that when patients are under the treatment of other doctors, such as hospital doctors, they are not registered with them. This is important. If I am right—and I am expressing no view on the merits of the amendment—it would be helpful to the Committee to know from the noble Lord, Lord Carlile, what would happen in circumstances where, for reasons which have been set out by other noble Lords, a person is not registered or has been removed, sometimes forcibly removed, from the list by the GP under the arrangements that apply. It would be helpful if he could clear up that point.

[Lord Carlile of Berriew]

I am happy to clear it up. My understanding—and I am happy to be corrected by the Minister if I am wrong—is that if I am nominally registered with Dr A, who is in a practice with Drs B, C and D, and I go for treatment and am seen and treated by Dr D, I am being treated by a doctor with whom I am registered. That is because my registration with a doctor in a practice includes registration and treatment by any other doctor in that practice.

[Lord Hunt of Kings Heath]

That is a very helpful response. Can the noble Lord explain the circumstances in which a patient is not so registered? At any one time there are thousands of patients who are not registered.

[Lord Carlile of Berriew]

If a patient is not registered, they are not registered. If a patient goes as a temporary resident—as I think the term used to be; I am not sure if it still is—to see a particular doctor, a general practitioner, they are then registered for the period of the temporary residence, which from memory is, or at least used to be, one month, and which may be renewable for the purposes of that treatment.

To deal with the broader aspects of the noble Lord’s question it might be worth making the further point, while I am on my feet, that it is very difficult to imagine that a patient would be in the situation described in the Bill but had not been treated for at least six months by a practitioner, such as the practitioner who was treating their cancer. That is the general experience that people have.