Assisted Dying Bill [HL]

Lord Warner Excerpts

Friday 16th January 2015 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, it is always a pleasure to follow the right reverend Prelate the Bishop of Carlisle, not least because he and I have a greater insight than most into each other’s parliamentary lives, as we receive a great deal of each other’s post on a mostly daily basis.

I hesitate to disagree with words used so firmly by the noble Lord, Lord Pannick. I do so particularly because, not so long ago, he appeared as my counsel in a public law case with his customary brilliance. However, the emphasis of his assertion, that this Bill is perfectly clear, is in my view just plain wrong, mainly for the reason given so clearly by the noble and right reverend Lord, Lord Harries of Pentregarth. As he was speaking, I was thinking back to the death two years ago of my then 98-and-a-half year-old mother. The family took enormous steps to assist her death. We put her in the place that we thought was most comfortable for her death—she did not agree, but that was characteristic of our robust and loving relationship. We took steps to ensure that all her grandchildren and great-grandchildren went to see her. We brought her her favourite alcoholic beverage, something rather eccentric called Wiszniowka. We did everything we possibly could to make her as comfortable as was possible. But we did not assist her to commit suicide. She died a natural death as a result of, unfortunately, rampant disease which she experienced in old age.

We debated earlier this week part of another Bill, the Counter-Terrorism and Security Bill, in which something was described as the Privacy and Civil Liberties Board, which was anything but a privacy and civil liberties board—it was a perfectly legitimate suggestion, but it was not what it said on the tin. This Bill empowers people who would otherwise be committing a serious crime to be excused from the criminal consequences of their action. It enables people—apparently doctors under its provisions as they stand—to kill other people deliberately, after consideration, with purpose. Anyone who believes that that is not the case is not taking a realistic look at the Bill. It is a matter for Parliament whether that is a proper thing for Parliament to do—I am not commenting on that at the moment, although I am opposed to it—but it is misleading to the public not to say what the Bill does, both in a provision such as that proposed by the noble Baroness, Lady O’Neill, and in the Title, which we will debate at a later stage, if we get to it.

When we include in the Bill words like those proposed by the noble Baroness and others, we are providing clarity which tells us two things about impact: first, it tells us about the impact on the person who is giving the assistance—as I said, they are committing a serious act which would otherwise be a breach of the law which might well land them in prison; secondly, we are describing the impact on the person who is wishing to die. We are saying that this is not a normal death, even if it is a death which is assisted by what is sometimes called, very clearly, the doctrine of double effect. We are making it clear that that person is dying because they wish to do so.

I am surprised to hear so much opposition from supporters of the Bill to giving within it a clear description of what they intend. If they do not accept this kind of amendment, then others, including some journalists who have been commenting favourably on the narrow scope of the Bill, may well come to the conclusion that it is indeed just a stalking horse for euthanasia.

[Lord Warner (Lab)]

My Lords, I have been sitting through these debates for 12 years—

[Lord May of Oxford (CB)]

My Lords—

[Lord Ashton of Hyde]

We cannot have two people speaking at once. I am sure that the noble Lords can resolve it between them.

[Lord Warner]

My Lords, I have been sitting through these debates on assisted dying for some 12 years, sometimes on the Front Bench and sometimes on the Back Benches. I agree that I am getting older and my memory may be getting a little faulty, but I do not recollect in many of those debates people standing up with such skills of advocacy as we have heard this morning about this definitional issue in the wording of the Bill.

We have been talking about legislation which has been labelled assisted dying Bills over the 12 years from the first efforts in this area of my noble friend Lord Joffe. We have had commissions on it which have used the term “assisted dying”. The public have got used to the term “assisted dying”. If we really want to confuse the public at this point, changing the terminology of the Bill is a really good thing to do. We have sat through long public debates over this particular—

[Baroness O’Loan (CB)]

I apologise for interrupting the noble Lord, but I just wanted to inquire: why does he think that it would cause confusion to introduce the term assisted suicide rather than assisted dying, when the actual fact is that it is assisted suicide? I just do not understand the logic. People understand suicide and dying as two separate acts.

[Lord Warner]

If we are really concerned with what the public understand, it is a bit presumptuous to assume that they have been following these debates for 10 to 12 years but have not understood what we have been talking about in terms of assisted dying. We get a lot of criticism in Westminster—

[Lord Elton (Con)]

My Lords—

[Lord Warner]

I realise that I have annoyed the noble Lord, but if I could just finish my sentence, it would be helpful, and it would probably speed up the business of the House if I could at least deploy my arguments before people interrupted them.

We have lived with this terminology of assisted dying for some time. I believe that it is patronising to the public to assume that they do not understand it. We are often criticised in Westminster and Whitehall for living in a special bubble. This seems to me a classic example of doing that. I must say that I am a little sceptical about this sudden enthusiasm for precision when we have not had much of that before.

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[Lord Carlile of Berriew]

Uncharacteristically, the noble Lord makes an entirely false point. The first response is that my amendment does not specify any doctor. The second response is that for those who are registered with general practitioners—I guess, the vast majority of the population—there are almost no single-handed practitioners left in this country. Therefore, within the group of general practitioners with whom the patient is registered—the right word is “registered”—for this purpose, there will be a choice of doctors. In any event, the noble Lord knows well that it is intended that there should be a conscience clause placed in this legislation, and there will be doctors who will simply, out of conscience, not certify that patients have the diagnosis required for the gateway.

[Lord Warner]

My Lords—

[Lord Carlile of Berriew]

No, I am not going to give way to the noble Lord; he can speak in a moment. I do not mean to be discourteous, but I know that he is well able to make his own points, and he will be able to make them in as contentious a way as he wishes, and as is sometimes habitual.

[Lord Warner]

My Lords—

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[Baroness Finlay of Llandaff]

My Lords—

[Lord Warner]

My Lords, I want to pursue the line of argument that the noble Baroness, Lady Brinton, has started. I agree with the noble Lord, Lord Carlile, that this is an important group of amendments. The noble Baroness has raised the issues of practicality and, possibly, unexpected consequences of some of the amendments.

I want to reinforce the point about the impracticability of Amendment 13. It fails to reflect the fact that in many cases of terminal illness a person will move from the place where the illness was diagnosed and the care of their consultant and GP to somewhere else. We have a National Health Service. You still get treatment if you move from A to B; medical records pass from A to B most of the time, reasonably successfully. The care of that person will be transferred to another GP and another medical practitioner. They may well not have had care of that person for six months. It may simply be impossible to operate Amendment 13 in the case of people who are terminally ill. We need to reflect on the practicality of that argument. I do not believe that the noble Lord expected that consequence from his amendments. That was the point that I was going to ask him about if I had been able to intervene a little earlier. I am happy to give way to the noble Lord.

[Lord Tebbit]

I am grateful to the noble Lord for giving way, but does he understand the concern that exists among many of us who saw that there were doctors who would certify that a woman’s health was at risk should her pregnancy continue who had never seen the woman concerned, who were pre-signing packs of such certificates to be used by their friends in the abortion business? How do we deal with that matter?

[Lord Warner]

The amendments would not deal with that matter. They would in many cases make it impossible for a terminally ill person who wanted to explore the issue of assisted dying to meet the requirements to have those conversations—let alone anything else—with a medical practitioner who was responsible for their care when they had moved house. I am not trying to make a wider point. I am on the narrow issue of the words in the amendments. I am with the noble Baroness, Lady Brinton, all the way on the impracticability of Amendment 13.

I move on to Amendments 20, 21 and 22 in this group. No one who supports the Bill is arguing that we expect doctors to have the gift of foresight about the length of time that someone will live for. I point out that the Bill uses a period which is commonly used in many other areas of public policy, not least in the area of welfare. If noble Lords read Section 82 of the Welfare Reform Act 2012, they will find a definition of terminal illness that is being applied by doctors day in and day out up and down the country—for those who are nerdy in these matters, it is on form DS 1500—to secure improvements in benefits because the person is terminally ill. Parliament, in the past couple of years, has passed legislation which sets out the terms of terminal illness, and doctors up and down the country are applying that legislation for the benefit of people with disabilities. The idea that the Bill is doing something different and novel in this area is, frankly, not true.

I also ask noble Lords to read the GMC guidance for doctors on issues such as end-of-life care and consent. In its admirable guidance, it is clear that there is a reasonable expectation that when a doctor thinks that someone may be terminally ill and may die before the end of 12 months, they may begin conversations with people. It is not unethical, it is not bad medical practice, where a doctor believes that someone may be terminally ill, not to do anything dramatic, but to begin to have a conversation with that person and their family. If you make it a shorter time for the person to have such conversations—six weeks, for example—all you are doing is putting enormous pressure on somebody who has had to come to terms with some catastrophic information about their life and circumstances. It would be inhumane, unfair and lacking in compassion to shorten the timescale within which doctors and their patients could have the conversations that they need to have.

I believe that the balance is struck right with the six-month term. In the United States, where assisted dying is legal, the bar has been set at six months and there is strong evidence to demonstrate that the model there works effectively and safely. Some very interesting work was done by a surgeon and public health researcher, Atul Gawande, who explains in his recent book Being Mortal: Medicine and What Matters in the End that survival statistics form a bell-shaped curve in which there are a small number of people who survive much longer than expected—the tail of the curve. He says:

“We have failed to prepare for the outcome that’s vastly more probable … we’ve built our medical system and culture around the long tail”,

of small numbers of cases. His view is supported by a number of pieces of research. I shall quote one that shows that fewer than one in four patients outlived the prognosis when their clinicians predicted survival for six months or less. In the great majority of cases, you could argue that the doctors have been optimistic about survivability rather than the other way around. Therefore, I think that my noble friend has struck the right balance in this area.

I shall mention one other bit of GMC advice, which relates to Amendment 20. The GMC is very clear to doctors, beyond doubt or peradventure, about the issue of patient consent. In my view, the amendment would be a breach of that advice. The advice is clear that even if the doctor disagrees with the patient’s decision their right to refuse a course of treatment is absolute and doctors are expected to respect that right. Following the GMC’s advice, I suggest that putting another impediment on doctors, as that amendment would, would be unfair to doctors.

[Lord Berkeley of Knighton (CB)]

My Lords, unlike the noble Lord, Lord Cormack, I have always welcomed and embraced the Bill, or certainly one very like it. One of the great qualities of your Lordships’ House is that, especially on an occasion like this, we listen to the arguments and are prepared to mould what we are trying to achieve. When I listened to Amendment 13 from the noble Lord, Lord Carlile, and especially Amendment 13A from the noble Baroness, Lady Finlay, I felt that they were reasonable. However, I have now heard the noble Baroness, Lady Brinton, and the noble Lord, Lord Warner, very eloquently saying why they are very worried about this issue so I am still slightly up in the air about it, although I think, with regard to Amendment 13A, that it is essential that these are “licensed” medical practitioners. The noble and learned Lord, Lord Falconer, is trying as hard as he can to go with the House and to take on things like this.

My point, and I shall make it extremely briefly, is about the six months’ terminal illness. I think that this is right, and I shall tell the House why. I have had lots of letters, as have many noble Lords, and there is something that they nearly all say. I had one this morning from someone who is 80, saying, “I don’t have a terminal disease but I do want to feel that I would have the option, if I became really ill, to talk this over with my doctor and work out a way of assuaging great pain and causing distress through that pain to my family. It might just be that I would talk to my doctor about having opiates that might repress the respiratory system”. Is that assisted suicide? I do not know. I certainly think that it is an option; frankly, very few doctors that I know deny that it has happened in their lives. They have treated people, especially in country practices where, as the noble Lord, Lord Carlile, has illustrated, they have known the patient for many years, even decades, and they ease them out of this life into the next one. It seems to me that this is the luxury that most human beings want to be afforded. I think that that is what the noble and learned Lord is trying to achieve, and on that basis I very strongly support him.

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[Lord McColl of Dulwich]

I thank the noble Baroness for that clarification. I note that in August 2011, 13,400 individuals receiving attendance allowance in England and Wales were considered terminally ill under the benefits definition. That would be a substantial group of people who might reasonably be eligible to have their death hastened by assisted suicide. We need to be very clear what we are talking about in relation to a terminal illness and, at the moment, there is a lot of room for ambiguity. Ambiguity does not lead to safeguards.

[Lord Warner]

Can I seek clarification from the noble Lord? What he is trying to do is challenge the point that I was trying to make. I should like to make clear to the Committee the point that I was trying to make—which I do not think was the point he was trying to rebut.

My point about Section 82 of the Welfare Reform Act is that it bases public policy on the assertion that it is reasonable to ask doctors to make a judgment on whether someone is likely to be terminally ill and die within six months. It does not say that we expect 100% perfection from those forecasts. My point was that Parliament has decided in legislation that it is reasonable to have a definition of terminal illness that we can expect the generality of the medical profession to understand and apply on a reasonably consistent basis. In my judgment—the noble Baroness, Lady Hayman, may be able to correct me—it would be a breach of medical good practice and possibly an offence for doctors knowingly to sign those certifications if they did not clinically believe that the person was likely to die within six months.

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[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.