Examination of Witnesses (Questions 80
- 99)
THURSDAY 16 SEPTEMBER 2004
The Lord Joffe
Q80 Lord Carlile of Berriew: Why
now? It seems such an obvious point to me.
Lord Joffe: No, I have not considered it because
of the evidence in The Netherlands and the evidence in Oregon
that the medical profession in the hospitals when a law is in
place seek to apply that law, not to oppose that law and obstruct
it.
Q81 Lord Carlile of Berriew: This
would create postcode euthanasia, would it not, under your proposals
as they stand?
Lord Joffe: Could you perhaps explain that question?
Q82 Lord Carlile of Berriew: Yes.
If the NHS trust in Area A does not agree to allow this procedure
to take place in its DGH and if the NHS trust in Area B does,
then you have postcode euthanasia, do you not?
Lord Joffe: I do not understand what postcode
euthanasia means. Perhaps you could explain it to me?
Q83 Lord Carlile of Berriew: It is
just like the complaints about postcode elective surgery. Surely
you understand that?
Lord Joffe: No, I do not.
Q84 Lord Carlile of Berriew: I will
move on to one further question, my last question for the moment.
Would you look at the schedule which relates to the clause dealing
with witnesses to the declaration? Would you look, please, at
paragraph (a) of both the solicitor's declaration and the other
witness's declaration? The requirements are that the person, the
patient, is personally known to me or has proved his identity
to me. Is that correct?
Lord Joffe: Yes.
Q85 Lord Carlile of Berriew: This,
my House of Lords membership card, proves my identity to you,
and I could present that to anyone. But they would not know me
by that presentation. Is not (a) an extremely weak provision,
given that position?
Lord Joffe: Basically we have to look at the
circumstances where this is happening. We have a patient either
in a hospital or at their home. We have family around and the
nurses know this patient. All we want to be satisfied about is
that the person he is talking to is the person who has asked to
be assisted to die. There does not seem to me to be any conflict.
It is not very complicated.
Q86 Lord Carlile of Berriew: But
do you not see there is a huge difference between someone being
personally known to a witness, which presumably means known not
merely as to identity, and simply identifying them. Otherwise
it is a virtually valueless provision, is it not?
Lord Joffe: Basically we have witnesses all
the time signing wills and signing all manner of documents. There
are no such requirements. What we are trying to do here is just
to add an additional safeguard, an additional precaution.
Q87 Lord Carlile of Berriew: This
is ending of a life.
Lord Joffe: Indeed, it is a question of life
but actually wills are also a question, in a way, of life and
death. Let us look at the position of a patient signing a consent
to life-endangering surgery. They sign this consent without any
witnesses and certainly not with a procedure of this sort. Would
you think that that is reckless?
Q88 Lord Carlile of Berriew: It is
very different. When you sign a consent to elective surgery, or
to surgery of any kind, you are signing to have your life preserved
and not to have your life ended. What I would suggest to you,
Lord Joffe, is that (a) and (c) of the declarations are no more
than window-dressing and extremely weak. Identifying someone as
who they are and their appearing to be of sound mind does not
require any in-depth knowledge of that person, does it?
Lord Joffe: There is no intention that they
should have in-depth knowledge of that person. We are asking them
to sign a document saying that they were there at that particular
time and that the patient appeared to them to be of sound mind
and to have made the declaration voluntarily. That is all we are
asking. We are not asking for anything beyond that and it is a
great deal more than happens in other end-of-life decisions. You
are clearly concerned about this. Could you suggest what we should
put there?
Lord Carlile of Berriew: I am not suggesting
you should put anything there. I think this is a valueless certificate
and an insufficient safeguard.
Q89 Lord Taverne: Lord Joffe, the
Bill, as you have put it forward, contains extra safeguards which
go beyond those in place in The Netherlands and Oregon. Of course,
extra safeguards mean extra delay and extra delay means extra
suffering. If we find, after hearing evidence from The Netherlands
and Oregon, as appears to be the case at the moment, that there
is in fact no abuse there, do you not think perhaps you may be
over-egging the pudding? and would you be wiling perhaps not to
insist on extra delay?
Lord Joffe: I have been criticised by many people
who have supported the principle of assisted dying over the fact
that in their view the Bill does not go far enough, that it should
go a great deal further, and that many of the safeguards are not
necessary. I feel, however, that we are starting off; this is
a first stage; it is new territory. I think that there is legal
guidance, and I think it might have been Lord Keith who said that
normally with new types of legislation one should go forward in
incremental stages. I believe that this Bill should initially
be limited, although I would prefer it to be of much wider application,
but it is a new field and I think we should be cautious. That
is why we have introduced all these safeguards, despite criticism
from many people who feel we should have gone a great deal further.
Q90 Bishop of St Albans: Lord Joffe,
thank you for the presentation. I want to go back to the fundamental
premise of the Bill which relates to personal autonomy. I wonder
if you could tell me what you think the changes have been in moral
thinking which lead you to suppose that the conclusions reached
by the 1993-94 committee are no longer well-founded or relevant?
It is the moral thinking I am concerned about just for the moment.
You did outline that there are the changes in legislation in Belgium
and Oregon and so on but I did not hear anything which said it
is as a result of a particular moral change.
Lord Joffe: Moral changes, in my view, should
represent and should be driven by the views of society as a whole.
I think there is clear evidence that the overwhelming majority
of society is in favour of assisted dying. Values change all the
time. If you take a look at what has happened with religious beliefs,
originally contraception was opposed; abortion was opposed; homosexuality
was opposed. I could go on and on with things that were opposed
that have changed over the last 20 or 30 years. I think the climate
of opinion in relation to assisted dying has significantly changed.
It is also very interesting to look at recent legal decisions
in this area. In the case of Ms B, the President of the Family
Court, Dame Elizabeth Butler-Sloss, laid out the principles very
clearly and they were recently referred to by Judge Mundy in another
decision where he says that personal autonomy trumps sanctity
of life. I think these traditional pronouncements and the views
of society lead me to believe that what may 100 years ago or 2,000
years ago have been a moral principle, determined in quite a different
environment where patients' lives could not be extended almost
indefinitely as at the moment, may no longer be of application
today.
Q91 Bishop of St Albans: It is possible,
therefore, on that basis, to assume there will be a change in
how we regard the importance of personal autonomy. Therefore it
is possible to assume that there may be a change in such a way
that personal autonomy is no longer the highest good but that
something else may be in which human life is no longer regarded
as of very great significance?
Lord Joffe: I am sorry, I missed the last part.
I thought you were saying that the view of personal autonomy might
change.
Q92 Bishop of St Albans: If other
things—
Lord Joffe: I accepted that. What was the follow
on?
Q93 Bishop of St Albans: I obviously
do not agree with some of your remarks, but I am just taking for
the moment the assumption—that I believe to be accurate,
of course—that certain opinions change.
Lord Joffe: Yes.
Q94 Bishop of St Albans: If that
is the case, then the current assumption in society that personal
autonomy is self-authenticatingly the highest good is a moral
judgment which could in future change.
Lord Joffe: I think it could change. You cannot
exclude the possibility that there will be change, as you correctly
point out, but that is a matter for future legislators to take
into account and not us.
Q95 Bishop of St Albans: Precisely.
We are legislating not for yesterday or today but for the future.
Lord Joffe: Yes.
Q96 Bishop of St Albans: If it is
conceivable that views of personal autonomy will change, it is
therefore conceivable that what we are looking at here could be
used for very deleterious effect.
Lord Joffe: No, you could not use anything over
here for that purpose. This Bill is very tightly drawn and is
very limited in its application: to terminally ill patients who
are competent adults suffering unbearably. It is very limited.
Q97 Bishop of St Albans: Unless the
Secretary of State happens to come to a different view.
Lord Joffe: The Secretary of State might come
to a different view and he might introduce new legislation, but
we cannot today say that we should not introduce legislation today
because somebody in the future might decide to change that legislation.
Bishop of St Albans: I think I have been misunderstood,
but I ought to stop.
Q98 Baroness Jay of Paddington: I
wonder if I could return to some of the practicalities. We discussed
the issues of autonomy quite extensively when we met before, but
I am quite concerned, Lord Joffe, about the point you are making
about what I think you described—and I may have misheard
you—as a "different standard of concern" that
is used in medical practice and other practice, towards what I
think you described as "other end-of-life decisions",
rather than what you are proposing in this Bill. Could you expand
on that.
Lord Joffe: Basically, there are a number of
other end-of-life decisions which take place; such as withholding
treatment, and withdrawing treatment. There are also decisions
taken, indeed, in relation to double effect which have the effect
of ending a person's life, and there are decisions taken in relation
to terminal sedation which in my view are indistinguishable from
assisted dying as we have defined it. In all these cases, there
is no legislation; no safeguards whatsoever. There are guidelines
in relation to withholding treatment, and advice given by the
General Medical Council or the BMA—I am not sure which,
or perhaps both—but there is no legislation. There is no
requirement for second doctors actually to be there, as we have
provided; there is no requirement for palliative care specialists
to explain the benefits of palliative care. And these decisions
are end-of-life decisions, just as assisted dying is, so it is
disturbing that all these objections are raised in relation to
assisted dying and not raised in relation to these other end-of-life
decisions which happen to be all in the power of the doctor—and
that might perhaps be the key—whereas, with assisted dying,
the essential point is that it is the patient who makes that decision.
Q99 Baroness Jay of Paddington: May
I follow that up because, as I understand it, that reflects—as
I would have imagined your Bill primarily reflected—on the
relationship between the individual clinician and the person involved.
I wonder how this impacts on what Lord Carlile was saying about
the disparity of practice that might arise if you had to be, as
it were, orchestrated at a local level, by a formal decision of
a local strategic health authority or a local trust. My understanding
would be, following your concerns about what you have just described—the
other end-of-life decisions, that you would presumably have what
Lord Carlile would see as disparities or anomalies in that system.
Am I in an area where it is not appropriate to discuss it because
it is not discussed? Or is that in fact what is going on, that
withholding treatment, for example, is differently practised in
Area A and Area B?
Lord Joffe: I am not an expert on what happens
in all the different parts of the country in different trusts,
but I think there are almost inevitably going to be differences
of approach. But I know of no cases where these end-of-life decisions
are taken with the extent of the care and the range of safeguards
that we have in this Bill.
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