Select Committee on Assisted Dying for the Terminally Ill Bill Minutes of Evidence

Examination of Witnesses (Questions 80 - 99)


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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