Assisted Dying Bill [HL]

Lord Mawhinney Excerpts

Friday 7th November 2014 Lords Chamber

[Lord Pannick]

My Lords, it has been a valuable and informed debate on the most profound moral issues. Like the noble and learned Lord, Lord Falconer of Thoroton, I of course respect what the noble Baroness, Lady Wheatcroft, says—that people who wish to end their life should not be impeded by a legal procedure. However, I think that the judicial safeguards, as so many of your Lordships have said today, are essential to protecting vulnerable people, which was one of the main concerns expressed at Second Reading. A judicial process will also bring home to the individual seeking assistance to end their life the gravity of the decision they are taking. A judicial process will also assist the doctor, as the noble Lord, Lord Ribeiro, pointed out. The noble Lord, Lord Tebbit, in his moving speech—

[Lord Mawhinney]

I am grateful to the noble Lord. I am one of those who was against the Bill, but I am being persuaded that there is a court role that might go a considerable way to being helpful to the outcome of this legislation. There were a number of suggestions that, rather than going to a vote in Committee, it would be helpful if the noble and learned Lord, Lord Falconer, with the noble Lords, Lord Pannick, Lord Carlile of Berriew, and others, sat down to see whether it would be possible to produce an amendment on Report which did not require all of us to be legal experts and have read paragraph 205, but which showed a degree of continuity and cohesion among those who have led the House to this position. Would the noble Lord be willing to put off a vote until Report so that such conversations could prior take place?

[Lord Pannick]

I am grateful to the noble Lord, but my position is exactly the same as that of the noble and learned Lord, Lord Falconer. The amendment is not legalistic. It says that the judge of the Family Division of the High Court should ask himself or herself whether the person concerned has made,

“a voluntary, clear, settled and informed”,

decision. They seem the right criteria. With respect to the noble Lord, Lord Carlile, I have not heard any convincing argument as to why the criteria should be more onerous—that the person concerned should be able to proceed along this route only if a further criterion is satisfied. Indeed, the addition of further criteria seems contrary to the valuable purposes of the Bill: to give effect to the autonomy of the individual.

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Moved by

[Lord Mawhinney]

6: Clause 1, line 13, at end insert—
“(iii) has made a second written declaration to that effect in the form of the Schedule before two independent witnesses, one of whom must be a solicitor in practice on the day immediately before effect is given to his or her decision.”

[Lord Mawhinney (Con)]

My Lords, I was interested to note, subsequent to putting down this amendment, that it covers similar ground to Amendment 65, to which the noble Lord, Lord Carlile of Berriew, has just spoken. I should start by saying that my amendment is an addition to his Amendment 5. No one should assume from it any implication that I am dissatisfied with that amendment as far as it goes; I just took the view that it does not go far enough.

If noble Lords read my amendment, what will strike them is that I am suggesting that there should be a second written declaration, but I want to come to that at the very end because that is not the main motive for putting down this amendment. I read Amendment 5 a number of times with an intellectual itch that I could not quite resolve. There was something about it that I did not like, but I was not sure for some time what it was. I finally realised that it was the word “settled”. We use the word “settled” regularly in daily language, but it actually has two quite distinct meanings. It can be used to say that something is settled—I have thought about it, I have given it due consideration, and I have come to a view, so it is settled—but “settled” can also mean that a decision has been made from which there can be no variation, turning back or deviation. It was that second aspect that bothered me in terms of this Bill.

We all know examples of “settled” in everyday language. We probably all know a fellow and a girl who fell in love and announced their engagement, and it was all settled, and then one of them walked away before they got to the altar. I was just smart enough not to say to my constituents in Peterborough, “We don’t need to bother you at this general election because you voted for me last time and the issue is settled”. I knew that they would respond by saying, “Actually, Brian, a number of things have changed since we settled it last time, so we want to settle it again”. Bless them, five further times, they settled it. Closer to home, Governments settle things all the time. We call them government policy announcements, and they are settled, until a U-turn occurs.

I hope it is not too wearisome to your Lordships’ House if I add my name to the list of those who recite examples of experiences when we served at the other end of the corridor, because I know of very few aspects of human experience and behaviour that teach you more about people than being a constituency MP. I remember the day when a lady came into my surgery. She did not really want any help from me. She had to tell somebody that she had decided to get a divorce. She wanted some advice as to how to go about it, but what she really wanted was to tell me that what had once been settled was not settled anymore. I advised her to get legal advice from a solicitor. I do not know what other colleagues did, but it was my custom never to recommend a particular solicitor. Some weeks later she came back in floods of tears—she was in floods of tears before she saw me. When she had calmed down, she said, “It’s terrible. We got to the point where there was only one step to go in the divorce process. I told my solicitor that he was not to go that last step without consulting me, but I have been told by him this morning that he went ahead and I am now divorced. I do not want to be divorced. I have changed my mind, but I am divorced. What can I do?” Something that was settled that became unsettled then became settled in an entirely different manner.

The use of the word “settled” in this Bill bothers me. I have no problem about the person involved going through the steps set out in the Bill and coming to a settled view. That is fine. However, time will pass between the achieving of that settled view and the use of the lethal injection or whatever the cause of death might be. What happens in that period? Are we as a legislative body making an assumption that nothing of any significance is going to happen in that period which might call into question the settled nature of the settlement? I do not think we should make that assumption. I think we ought to be quite specific that whatever may have been settled earlier needs to be reaffirmed on the eve of the decision being implemented. There needs to be an opportunity for a second and final thought as to the seriousness and finality of what is about to take place.

I come back to the second written declaration. I could not put down an amendment for your Lordships’ consideration which said that we ought to redefine “settlement”. That would have been seriously boring and nonsensical. I put down one way in which settlement could be affirmed or confirmed, and that is that a second written declaration had to be undertaken 24 hours before the final event. Other noble Lords who may agree with me may have a better way of confirming what settled means than the option I have chosen.

[Lord Avebury (LD)]

I just want to point out that the individual concerned has the right to revoke the decision right up to the point when he takes the medication. In fact, 40% of patients in Oregon do so.

[Lord Mawhinney]

I am aware of the point that the noble Lord makes. On the other hand, I have a lingering concern that the pressure of family and events can create circumstances in which it is quite difficult for people to express that reservation if they feel they are being a burden. At Second Reading, I gave the example of my own mother and the last years of her life. I quite accept that that provision is there; I know it and welcome it. However, it does not go far enough. There is a judgment call to be made at the very end which nobody can escape, which has to be affirmed, confirmed and made. It is one last chance. That does not seem unreasonable given the substance and significance of what the legislation is about.

In my earlier intervention I sought to persuade the noble Lord, Lord Pannick, to defer his vote. He and the noble and learned Lord, Lord Falconer, exercised their rights absolutely; I have no complaint about that. They disappointed me, but they were perfectly entitled to do so. Let me therefore be explicit: I do not intend to push this to a vote today. I want to stimulate people to think about whether a settlement made some time ahead is a sufficient safeguard or whether it ought to be mandatorily reaffirmed just before the act takes place. I would like your Lordships to think about that. If my proposal finds favour, that is good and we can come back to it on Report. If not, I am interested in hearing other suggestions.

[Baroness Richardson of Calow (CB)]

My Lords, on Amendment 65, on capacity, it is hard to imagine how anybody who has just been told that they have less than six months to live, and who is in such pain that they do not want to continue living, should have absolutely no impairment or disturbance of the mind. This must be part of the condition—but I am not convinced that it would necessarily cloud or impair their judgment. When a person gets close to death, it clarifies the mind rather than clouds it, and gives them much more of an incentive to make decisions that will affect them in a very real way.

On the sense of obligation or duty to others, at the risk of sounding too much like a Methodist minister, there used to be in our Methodist hymnbook a hymn which started:

“Rejoice for a brother deceased;

Our loss is his infinite gain”.

There are occasions when people, feeling not just a duty to others but a delight and a joy in leaving behind a mortal body in order to find a fullness of life—which some of us already experience—will want to do so at the moment of their death.

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[Lord Deben]

My Lords, I did not intend to speak on this group of amendments, but two interventions lead me to do so. The first was that of my noble friend Lord Mawhinney, who I think is wrong. I do not think that his proposal is necessary. I think that the Bill covers that. What my noble and learned friend Lord Mackay pointed to in that part of Clause 4 is right. It is important that even those of us who are very unhappy about the Bill should be extremely careful not to be presenting things that might be seen as merely holding up or interfering with the process of the Bill. That is why I would not support that proposal. It was the intervention of the noble Baroness, Lady Warnock, which particularly caused me to feel that I should join the noble and learned Lord, Lord Mackay, in his conversation.

[Lord Mawhinney]

I am grateful to my noble friend for giving way. Would he be willing to accept that there is a difference between an option being available to someone and a requirement to make a decision being available to someone? I am disappointed that my noble friend implicitly accused me of trying to slow down the process when I was, obviously inadequately, trying to draw a distinction which seems to me to be important. The opportunity to be required to make a decision is different, almost in principle, from the option to make one. I hope that my noble friend might on reflection agree that that is a distinction worth considering.

[Lord Deben]

First, I agree with the distinction. Secondly, the criticism that I made was not of my noble friend but of myself. It was that I would not like to be accused of supporting something merely for the sake of supporting it because it was another part of the debate. That is why I felt it right to say that I did not support this in order that no one should feel that one was elongating. What I would say to my noble friend is very simple: within the Bill it is clearly necessary before the final act takes place for the person doing that act to assure themselves that there has been no change of mind. That is not an option; it appears to me from the Bill that that is a necessity. If it is not a necessity, we ought to make it one. The noble Baroness spoke of the guidance. It would certainly have to be very clear in the guidance. Given those things, I would not want to change it in the way that my noble friend suggests.

I return to the noble Baroness, Lady Warnock, with whom I have had fascinating and interesting discussions over many years. One of the issues that we have not so far considered, but I hope we all have in our minds, is the fear that particularly older people should feel that they are no longer of use when they are of use. Very often, when people say, “I ought to end my life because I am a burden on you”, the answer ought to be, “You are not a burden”. I have been very fortunate in my life because I have had the ability—I mean by that the size of accommodation—for my wife and I to look after both our sets of parents until they died. It was an enormous privilege. If you asked our four children, they would tell you that it was one of the most important parts, if not the most important part, of their upbringing—to be brought up with aged grandparents and, in one case, with a grandmother who had long lost the power of communication. They would all say that all four of them contributed greatly to them and to their lives. The worry I have of the thought that the noble Baroness put forward is that it reaches to the thing in this Bill that for me is the deepest unhappiness, which is that people should feel that they do not matter because they cause trouble and difficulty and are a burden on others.

One of the things behind all this that leads me to take time and to be concerned is the awful way in which this nation in particular treats its older people in general and the attitude we have towards them. Of course, I suppose at my age I ought to declare an interest. However, I intend to be around, like most of my relations, for very much longer. I hope I will not be a burden, but it is not for me to judge whether I am a burden. That is why I think paragraph (d) of Amendment 65 is so important. I do not believe that people should end their lives because they make a decision that they are a burden. I think that is one bit we have no capacity to decide in any circumstances, however mentally agile we may be. It is utterly impossible for any of us to make that as an objective decision. Therefore, to put this into the Bill is an important affirmation of our belief that a person, even in their last days, may, in fact, far from being a burden, be someone who makes a real contribution to the people around.

It is difficult not to, and I know that sometimes it could become maudlin, but we can speak only from our own experience. I, too, was with my father as he died. We were very close. He died as I said the words of the Nunc Dimittis. He clasped my hand and was gone. I think that his last fortnight of pain and his difficulty in coming to terms with a failed operation, making a decision that he would leave his death as it would come, has had a bigger effect than almost anything else. I do not think that he knew that; although I believe that he does now. However, I do not think that he was capable of saying that he did not matter and I think that we ought to protect people from being asked to make that decision.

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[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?

[Lord Mawhinney]

My Lords, while reserving the right to return to this subject on Report, for now I beg leave to withdraw my amendment.

Amendment 6 (to Amendment 5) withdrawn.

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[Lord Mackay of Clashfern]

My Lords, my Amendment 10, which was superseded, accords with the amendment moved by my noble friend Lord Cavendish. I just want to explain that all I wanted to do was to put the condition about informed consent into Clause 1, which contains the lists of qualifications. There is of course a reference to informed consent later on in the Bill. That was all I wanted to do, and it goes along with what is done by Amendment 4 in the name of the noble Lord, Lord Pannick, which talks about informed wish. I therefore assume that that would be simply a technical matter of moving it.

[Lord Mawhinney]

My Lords, I follow my noble and learned friend Lord Mackay. I was thinking along similar lines on Amendment 10 and fully informed decisions. I am sure that all of us want decisions to be fully informed, so I wonder whether the noble and learned Lord, Lord Falconer, could before Report give some thought to whether he is satisfied that fully informed clearly includes, first, being told what the options are and, secondly, on the part of the patient, having some comprehension of what he or she is being told. Running off a list of options does not mean that the recipient is fully informed if he or she does not understand what the options really mean.

[Lord Howard of Lympne]

My Lords, I support the observations made by my noble friend Lord Cavendish, with respect to Amendment 70, to which he spoke but which he did not move. He spoke about the importance of palliative and hospice care, and I support what he said and endorse what he said for the reasons that he gave and those that I gave earlier today, in our first debate. I was very concerned by the tale related by the noble and right reverend Lord, Lord Harries of Pentregarth, about a remark made by a nurse in a hospice. I was distressed and surprised by that, and if he were to let me have the details I would like to look into it. It is all the more surprising because the greatest growth area in hospice care is hospice at home. Increasingly, nurses and other workers from hospices go out and look after people towards the end of their lives, in their homes. I was really distressed to hear that, but I assure your Lordships that it is very unusual and exceptional.

I should say a word in support of the observations made by the noble Baroness, Lady Howe of Idlicote. Her observations were powerful and speak for themselves, but I confess that I had not expected the issues before the House today to become entwined in the larger immigration debate, which occupies so much space in the press at the moment—but it seems that it has done, as result of the intervention of the noble Baroness, and I strongly support what she said.