Assisted Dying Bill [HL]

Lord Tebbit Excerpts

Friday 7th November 2014 Lords Chamber

The major reservations to the Bill, about protection for the vulnerable, will be met by the amendments of the noble Lord, Lord Pannick. I urge all noble Lords to support them.

[Lord Tebbit (Con)]

My Lords, I worry a little, because I do not quite understand some of the proposed legislation. It is very much about process, which is very important. However, it should also surely be about deterrents against wrongdoing. I recollect that, when I had responsibility for taking legislation through Parliament, some of which one or two noble Lords opposite will remember quite well, one of the things I had to constantly ask myself was, “What are the means of deterring people from wrongdoing?”.

This is about going to the High Court and all sorts of other things, with doctors doing this and that. Supposing there is wrongdoing, how do we deter it? At the moment, if somebody wrongfully puts pressure on, or wrongfully assists, a suicide, they know that the law is there and that its hand may fall on their shoulder. I may be wrong but, as I see it, if we enacted these measures we would only be adding to the procedures, not to the deterrents against wrongdoing.

I speak with some feeling. I have had the prime responsibility of the care of my wife for the last 30 years. She has been in constant pain. It is getting worse. She requires more and more care. I fear for the day when she will say again to me what she said to me a little while ago: “You know, you would be better off without me”. There are many ways in which pressure can be brought to bear to make people who are perhaps approaching the end of their lives—although I hope that my wife is not—to “do the decent thing”. These amendments do not do anything to avoid that, and that is what worries me.

[Lord Condon (CB)]

My Lords, I declare my registered interest in policing. I support the amendments put forward by the noble Lord, Lord Pannick, and other noble Lords, for the reasons that he outlined. At Second Reading I expressed a wish that the involvement of the High Court was perhaps the way forward on this issue. Like many of your Lordships, I had the privilege and honour of sitting through the previous debates on this issue, and like everyone in this House, past and present, we felt enormous compassion and wanted to find a way through this issue, which resonated with the feelings out there in the wider community.

For my own part, I have never been able to be satisfied that abuse, coercion and the prospect of malpractice of the sort outlined by the noble Lord, Lord Tebbit, were addressed in our previous attempts to deal with this tragic issue. However, we are now tantalisingly close to finding a way through this issue. It will assuage those of us who fear abuse, coercion, the right to die becoming the duty to die, and so on. Therefore I hope that we will find a way through this issue that involves judicial oversight and scrutiny.

At the moment I find myself favouring the approach of the noble Lord, Lord Pannick, in his amendments, as a medical-based approach but with judicial verification and oversight, because it is not quite so bureaucratic as the way forward suggested by the noble Lord, Lord Carlile. However, I hope we will find a way through this issue through judicial intervention.

[Lord Tebbit]

What does the noble Lord feel about the fact that a number of doctors who, quite wrongfully, signed chits, or whatever they are called, to allow sex-selective and frequently late abortion of patients whom they had never seen and whose names they did not know, have gone unpunished? Where is the deterrence to that?

[Lord Condon]

The noble Lord raises a very vital issue. We can and will address it in two ways: first, through the judicial oversight, and secondly, by amending Section 10, which at the moment has insufficient offences, but which can be amended to have a range of offences that will satisfy just the concern that the noble Lord has raised.

--- Later in debate ---

[Lord Tebbit]

My Lords, as I have listened, my mind has turned to the practice of those who may be seriously ill or handicapped in some way or another signing DNR—do not resuscitate—forms. Are they affected by these restrictions? Should we indeed be allowing DNR forms to exist? We do not ask whether the person who signs it is mentally competent to do so, nor do we involve the High Court or anybody else. Are doctors obliged to respect a DNR form? I am not quite sure—is anybody else here?

[Lord Stirrup]

Will the noble Lord accept—perhaps he will not—the proposition that there is a distinct difference between a doctor failing to resuscitate or withholding artificial support to life and actually participating in the taking of a life? That is why there is such a focus in this debate on the roles and responsibilities of those people. There is a difference of very great magnitude between that and the DNR case. Does he agree?

[Lord Tebbit]

My Lords, I entirely agree with the noble and gallant Lord. I think there is a distinct difference but I do not think that we should just go on, forgetting the existence of those forms or forgetting the role of the doctor in deciding whether or not to respect them. It is not an easy question to answer, always, is it?

[Baroness Finlay of Llandaff]

My Lords, it might be helpful to the House if I intervene very briefly. The whole policy of cardiopulmonary resuscitation is being revised. The noble Lord, Lord Tebbit, has raised a very important point. Resuscitation can be a whole batch of treatments. Giving insulin to a diabetic whose blood sugar has gone dangerously high is resuscitative. Similarly, giving sugar if they are hypo is resuscitative. I would like to park resuscitation per se and focus on cardiopulmonary resuscitation, which is a specific intervention to try to restart the heart when it has stopped.

We know that the chance of that having any effect is exceedingly low when people are already dying of a disease. It is in those patients, where death is anticipated and accepted by everybody and is a natural process at the end of life, that the forms are there so that a nurse who does not know the patient, who has just come on duty and finds that they have collapsed, does not have to run down the corridor and get the trolley and so on. That is completely different from the person who collapses on the station and people, rightly, grab the defibrillator and attempt to resuscitate them, as has happened in your Lordships’ Chamber—gladly, successfully. We have a very good track record of resuscitation in this Chamber.

DNR forms are completely different because you are talking about a life that is coming naturally to a close. This Bill is about taking the decision to deliberately give lethal drugs, irrespective of how long that life may go on for, because, as we will come to in later amendments, we just do not know. I wonder if that helps the noble Lord.

[Lord Tebbit]

I think, my Lords, it does. It is a matter of whether it is a positive or a passive intervention. That is the distinction.

[Lord Hussain (LD)]

My Lords, from day one, I was minded not to support the Assisted Dying Bill and made my views known to fellow Members of this House. However, I have listened to today’s debate. My reasons for not supporting the Bill are my faith—everybody has their own faith and can choose whether to follow it—but also a personal experience.

Some 25 years ago, my father was critically ill. After he had been many days in hospital, I was told that he was going to die and that, if we wanted to take him home, we could. And we did. I was told that it could be a few hours, a few days, a few weeks or even a few months, but that he was on his way to dying and that there was nothing we could do to help him to live longer.

In the condition that he was in, I was feeling my father’s pain. I would do anything in my control at that time to help him, but I could not. However, when we took him home, he surprised not only me but the doctors and everybody else. Not only did he pull through that situation but he is still alive. He is nearly 90 now. I am glad that this Bill was not approved at that time and that we did not have the ability to assist him to die, otherwise we would have helped to kill a person who is still alive after 25 years.

--- Later in debate ---

[Lord Tebbit]

Perhaps the noble and learned Baroness can help me with that question of capacity. There are some elements, such as depression, which come and go at various levels. A depressed person may sometimes have capacity and sometimes not. An alcoholic may not have capacity but, on the other hand, he may have it when he sobers up for a while. The same applies to a drug addict, who may or may not have capacity according to how much he has taken. I find that rather difficult to judge against the more permanent and unchanging stages of capacity and incapacity; for example, in a patient with Down’s syndrome, whose capacity would be limited but probably more or less unchanging, or somebody in the later stages of Parkinson’s disease, where that mental capacity was beginning to go but could only get worse. I am a little puzzled as to how one would make the decisions between those varying states.

[Baroness Butler-Sloss]

If I may be anecdotal, as other noble Lords have been, my mother died of multiple sclerosis in her early sixties. There was a point at which I, as a young lawyer, realised that she no longer had, in my view, the capacity to make decisions. However, that was at a very late stage of her illness.

If the doctor is not satisfied because someone is a drug addict or has been an alcoholic or has, for instance, a high degree of anorexia as a young person and is saying that they want to die, those are points at which a doctor should be saying, “I’m not quite certain whether he or she has capacity”. That is why I suggest in my amendment that, unless they are satisfied, they should pass it on to someone who has the expertise, who would then, as a psychiatrist, look at whether the person actually has the capacity. Okay, we are talking about someone with three to six months to live but, if they do not have the capacity to make this incredibly important decision, they should not be allowed to do so. That is how I would see it, in answer to the noble Lord, Lord Tebbit.

--- Later in debate ---

Of course, the noble Lord, Lord Tebbit, is right to say that people change their minds and the noble Lord, Lord Mawhinney, is right to say that a settled intention does not always remains settled. There are ample provisions in the Bill and, of course, within the code of practice whereby we would want to ensure that people had the opportunity. Nevertheless, as the noble Lord, Lord Avebury, so eloquently and briefly said, if someone changes their mind right up to the minute they are to take that drink of killing medicine—let us say it—until that very moment, the choice is theirs. In Oregon and in Washington state, we know very well that about 40% of such patients do not take it. They go on to receive hospice care and palliative care. That is their choice.

[Lord Tebbit]

My Lords—

[Baroness Murphy]

Can I just finish my points? Essentially, of course the capacity issue is one that doctors deal with every day. As the noble Baroness, Lady Hollins, has often pointed out, they are not very good at it unless they are specifically asked to do it. That is a crucial point. There is a difference between a doctor just ticking a box and those who have to say they are there to assess capacity. In this Bill, they are there to assess capacity. Should we have a “supercapacity” category? Should we ask for a solicitor? That would make it extremely difficult for the patient who would have to clear yet another enormous hurdle. It would be too much.

I have discussed this with the Royal College of Psychiatrists. There are, in fact, three fellows of the Royal College of Psychiatrists in this House; one is against the Bill while two of us are supportive of it. That indicates how most of the royal colleges are split. It is not that there is a split between those doctors who are for and those who are against, in the way that the BMA describes it. The BMA has never asked its members; it would not risk it. The Royal College of Physicians is consulting again but, in fact, most of the royal colleges are now neutral on the issue.

I suggest that we look seriously at how we can strengthen the Bill in relation to capacity as it is described at the moment. If those doctors who are not specialists in capacity, as happens now in relation to many decisions, have any doubt whatever, they should be able to refer to a specialist—a psychiatrist who specialises in capacity. I will sit down for a moment.

[Lord Tebbit]

I am grateful to the noble Baroness, because she has launched herself off into dealing with an argument that I did not make. She misheard what I said. I was not talking about people changing their minds. We all do that at times. I was talking about people whose capacity was changing. That is an entirely different argument, and it would help if she dealt with the argument I made, not with the argument she would like me to have made.

[Baroness Murphy]

I am happy to apologise to the noble Lord, Lord Tebbit. Of course people change in their capacity. The way in which the Bill is phrased and the way in which the code of practice needs to be devised must take account of people’s changing capacity. I accept that completely. The noble Lord is right; people change in their capacity.

Amendment 54 adds a provision in the Bill that a patient should be referred to a specialist if there is any doubt in the minds of the attending consulting physicians on the patient’s capacity. That safeguard is in the Oregon legislation and is worthy of being put in this Bill. It could easily be put into the code of practice also, and that is where those of us who originally were concerned about the Bill had in mind for that provision to go. However, if people would feel more reassured that it should be in the Bill, I would support that. We must get away from the notion that doctors somehow do not understand capacity or use it. They do so every day of the week—not always perfectly but sufficiently to this end. We cannot expect that people should have a sort of supercapacity over and above what is generally accepted by the courts.

This issue was given a great deal of thought during the creation of the Mental Capacity Act, but ultimately the way that Acts are implemented has to depend on the way that codes of practice are devised. That is where the professions must come in: to help us and to tell us what they would like and what people think. To take a very good point made by the noble Lord, Lord Griffiths of Burry Port, this is not just an issue for doctors to decide; it is about other people coming in to say what the code of practice would look like and what lawyers, relatives, indeed all of us would think was an appropriate level of mental capacity. It will, of course, be extremely high and quite different from testamentary capacity, where the test is quite low.

I propose that we support Amendments 54 and 59, but I do not support the amendments at the beginning of the group.