Assisted Dying Bill [HL]

Lord Swinfen Excerpts

Friday 7th November 2014 Lords Chamber

[Viscount Colville of Culross (CB)]

My Lords, I have put my name to Amendment 66 because, as I said at Second Reading, I am concerned that there are not sufficient safeguards in the Bill to ensure that the mental capacity of the terminally ill person has been correctly assessed.

In subsection (2) of the proposed new clause, the emphasis is on the doctor not to countersign the declaration of intention,

“Unless the attending doctor is satisfied that a person requesting assistance to end his or her own life has the capacity to make”,

that decision. I listened carefully to what my noble friend Lady Hollins said about psychiatrists not necessarily being brought in. However, I should like to think that we can rely on the professionalism and training of our doctors and that if they were in any doubt at all, they would call in a psychiatrist to make this assessment to reach that very high level of satisfaction that the patient has the mental capacity.

The requirement to call in a psychiatrist if the doctor is concerned about the person’s mental capacity was included in the original Bill of the noble Lord, Lord Joffe, but is not in this Bill. As my noble and learned friend Lady Butler-Sloss said, subsection (2) of the proposed new clause points out that the person should not be,

“suffering from any condition, including … depression”,

which could impair his or her judgment. Recent medical evidence has revealed that the presence of depression in terminally ill patients is much higher than in other patients. In a report in the BMJ, Prevalence of Depression and Anxiety in Patients Requesting Physicians’ Aid in Dying, the authors investigated terminally ill patients in Oregon who requested aid in dying and found that more than 50% met the criteria for depression or the criteria for anxiety that they were depressed. Depression can leave a person with unchanged mental capacity; it can also radically change a person’s mental capacity. There was rather a good article in the Journal of Clinical Oncology entitled “Euthanasia and Depression: A Prospective Cohort Study Among Terminally Ill Cancer Patients”, which discovered that the risk of requesting euthanasia for patients with a depressed mood was 4.1 times higher than that for patients without a depressed mood.

This amendment would put the onus on the doctor assessing the mental capacity of a patient to bring in a psychiatrist if they were at all concerned about this condition. Proposed subsection (3) seeks to set out the criteria for the psychiatrist who is going to be involved. The 2005 mental capacity committee heard from Dr Geoffrey Lloyd of the Royal Free Hospital’s department of psychiatry that in more complicated cases only liaison psychiatrists have the expertise to assess a patient’s mental capacity correctly. The report said:

“There was a general consensus among our expert witnesses on one point—that the attending and consulting physicians who are envisaged as being effectively the ‘gatekeepers’ in regard to applications for assisted dying could not be expected to spot impairment of judgement in all cases”.

Proposed new subsection (4) asks for the psychiatrist also to be satisfied that the person making the request has the capacity to make the decision to ask for assistance with dying. Patients can be very good at deceiving even trained psychiatrists about their state of mind and can appear to be capable when they are not. The same often appears with people who are suffering from dementia. Psychiatrists may need to make another visit, maybe a month or so later, to make a proper assessment of their capacity. I can quite see that this sort of period can make the delay too long for many terminally ill patients. My answer must be that the most important thing is to get the decision right. I hope that this amendment will do just that.

[Lord Swinfen (Con)]

I support the noble Baroness, Lady Hollins, on her Amendment 71. Given the gravity of the decision to end one’s life, ensuring that a person requesting assisted death has the capacity to make this decision is of fundamental importance, yet the Assisted Dying Bill raises serious concerns about how decision-making capacity will be determined.

Furthermore, I think that the Bill is inaccurate from a legal standpoint with respect to the assessment of mental capacity. The Mental Capacity Act 2005 states at its outset that:

“A person must be assumed to have capacity unless it is established that he lacks capacity”.

Section 62 of the same Act makes clear that,

“nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961”.

Yet Clause 12 of the Bill of the noble and learned Lord, Lord Falconer, states that,

“‘capacity’ shall be construed in accordance with the Mental Capacity Act 2005”.

The Mental Capacity Act for England and Wales has established the legal criteria to be met if a person is to be considered to lack capacity in relation to the matter in question. There is a requirement that,

“at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in, the functioning of, the brain or mind”.

Mental capacity must then be functionally assessed, as it is decision specific and time specific.

In the context of this Bill, the person must have the capacity to make the decision to ask for and, if offered, accept a medical intervention, the consequence of which is death. Given the criteria set out for decision-making capacity in the Mental Capacity Act, the person concerned would need to understand and balance knowledge of their existing medical condition and any potential treatments, and the likely benefits of further palliative care, and be able to communicate this choice, being fully aware that the consequence if the doctor agreed to carry out the procedure would be his death.

From April 2007, the Mental Capacity Act has provided the legal framework in England and Wales for substitute decision-making with respect to healthcare treatment when a person lacks the capacity to make relevant treatment decisions for himself. This can be helpful to people nearing the end of their lives. Lasting power of attorney for health and welfare allows decisions to be delegated to one or more attorneys of your own choice. You can also give your attorneys the power to refuse or agree to any medical treatment you may need to stay alive, if ever you are unable to make that decision. This is called an advance decision and is legally binding if the circumstances are the ones you specified. Any action taken must, under the Mental Capacity Act, respect valid LPAs and advance decisions to refuse treatment.

--- Later in debate ---

[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.

[Lord Alton of Liverpool]

My Lords, I support Amendment 65 and Amendment 71 in the name of my noble friend Lady Hollins. I also support what the noble Lord, Lord Swinfen, has just said. I thought that he made some incredibly important points. We are dealing with capacity, depression, burdensomeness and the ability to communicate. The last point made by my noble friend Lady Masham during her intervention is one that the movers of the Bill need to take very seriously.

I draw the attention of noble Lords to an Early Day Motion tabled in another place earlier this year. It deals with some of the points in these amendments and states:

“That this House notes the results of the Washington State Death With Dignity Act Report 2013, published on 10 June 2014, which concludes that the number of deaths through physician-assisted suicide has tripled since the first year of implementation and increased by 43% between 2012 and 2013; expresses grave concern that 61% of those who received lethal drugs in Washington in 2013 gave as a reason for seeking assisted suicide being a burden on family, friends or caregivers; recalls that those who introduced the law in Washington assured the public that it would only apply to terminally ill, mentally competent patients; and reiterates its belief that a corresponding change in UK law would endanger the lives of the most vulnerable in society”.

I agree with the sentiments expressed in that Early Day Motion. As the debate continues in the country at large, I hope that we shall have the chance to hear more voices from those who have been elected and who have had direct contact with their constituents.

It is not just in the state of Washington where we have seen things change from often good intentions—I pay tribute to the noble and learned Lord, Lord Falconer, whose motives in this I have never doubted—so that what comes out at the end is not always so. I draw the attention of the House to the comments of Professor Theo Boer in Holland, who said:

“I used to be a supporter of the Dutch law. But now, with 12 years of experience, I take a very different view … Pressure on doctors to conform to patients’ (or in some cases relatives’) wishes can be intense”.

He admitted that he was,

“wrong—terribly wrong, in fact”.

He had changed his mind. Since 2008, the number of assisted deaths in Holland has increased by about 15% every year, maybe reaching a record of 6,000 a year. It is worth pointing out that the law there changed at first simply by turning a blind eye—then voluntary euthanasia was introduced and then involuntary euthanasia. About a quarter of the deaths in Holland every year now are involuntary—that is, without the consent of the patient. These are the facts that we must consider as we consider whether or not we are putting sufficient safeguards in the Bill to safeguard the most vulnerable.

The noble Lord, Lord Deben, was right to point to the often fragile existence that many elderly people have. I saw figures recently that suggested that around 1 million elderly people do not see a friend, relative or neighbour during an average week: toxic loneliness. It is assisted living that we need in this country, not assisted dying. We need people who can help people in that kind of situation.

We have all experienced depression. Winston Churchill experienced the black dog. Depression is prevalent in many of our large urban communities. Certainly, in the areas that I represented, it was not heroin—although you saw heroin on the streets—it was antidepressants on every shelf of every home that you went into in the high-rise blocks, cluster blocks and spine blocks, where people were forced to live in depressing situations. That is why I was not surprised by the remarks of the noble Baroness, Lady Hollins, with all her experience as a former president of the Royal College of Psychiatry. I was not surprised to hear what she had to say, but I was particularly struck by a report published in April of this year by Price, McCormack, Wiseman and Hotopf. They said:

“Before mental capacity can be placed so centrally as a safeguard in the process, discussion needs to take place about what exactly is meant by the term ‘mental capacity’ in the new Assisted Dying Bill”.

The Bill does not require any treatment for depression, although it proposes in Clause 8(1)(a)(ii) that there should be a recognition of its effects on a person’s decision-making. It is not clear what that would mean in practice. Would it mean that a patient would have to receive treatment or a psychiatric assessment, or be refused altogether? There simply is no clarity on that key point.

I also draw the House’s attention to the evidence given to the noble and learned Lord’s own commission when it considered the issue of capacity and judgment back in 2006. It said that,

“in the context of such a serious decision as requesting an assisted death, the Commission considers that a formal assessment would be needed to ensure that the person concerned had capacity. The evidence given to the Commission made it clear that there are a number of factors that might affect an individual’s mental capacity, including temporary factors caused by physical or mental illness, and more permanent impairments such as a learning disability. It would be important that such factors were identified and that an assessment was conducted to explore whether the subject’s decision-making capacity was significantly impaired … the Commission does not consider that a person with depression, whose judgement might be significantly impaired as a result of this depression, should be permitted to take such a momentous decision as ending their own life”.

I know that the noble and learned Lord still holds to that view. I commend it to the House.