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


Examination of Witnesses (Questions 2072 - 2079)

THURSDAY 20 JANUARY 2005

RT HON LORD GOLDSMITH QC and MR DAVID PERRY

  Q2072  Chairman: Attorney General, we are extremely obliged to you for coming along this morning to help the Committee on the legal issues which are at the base of our consideration of Lord Joffe's bill. We are grateful for the draft paper that you have given us on the background legal issues. We understand that that paper is subject to possible refinement in the light of the discussion that we may have in the course of the morning. As you know, the evidence that you give will be transcribed. You will have an opportunity of correcting it, and, ultimately, it will become part of our report and be duly published. I also want to make it clear that what we have invited you to come to help us with is the legal position and any matters of prosecutorial policy, if there are any, that may be relevant to that, but there is no question of anyone wishing to ask you about the general policy of the Government in relation to this particular bill. If that is to be expressed, it will be expressed by others at an appropriate time, but, so far as you are concerned, we do not expect you to comment on that in any way whatsoever. You have a colleague with you whom you would like to introduce?

  Lord Goldsmith: Thank you very much indeed. Yes, I would. I have with me Mr David Perry, who is senior Treasury Counsel and an extremely experienced advocate in criminal and human rights fields. He has assisted me in preparing the draft paper to which you, Lord Chairman, have referred, and I will at appropriate moments invite him perhaps to answer or to supplement answers that I give, if that is satisfactory to the Committee. Before that, could I simply acknowledge my gratitude for what you have said about why I am here? I am here as part of my traditional role of seeking to give legal advice to Parliament, to assist where I can. I am not here in any sense to express any policy view on my own behalf, let alone on the Government's behalf, on Lord Joffe's bill, and, as you say, such views on the policy of the bill will be stated by others at an appropriate moment, no doubt, but they will not be from me this morning.

  Q2073  Chairman: Would you like to give us a brief introduction or would you prefer to go to questions immediately? Your paper is before us, but it might be useful, if you felt it would be helpful, if you would give us a brief summary of the relative position?

  Lord Goldsmith: I will happily do that. What it seemed to us may be helpful to the Committee was to deal with the current state of the law, firstly in relation to homicide, defining the different offences of murder, manslaughter and complicity in suicide, and drawing attention to an aspect which is important, that deliberately taking the life of another person, whatever the motives may be, constitutes the crime of murder unless there is a defence which reduces to it manslaughter. So a doctor who practises "mercy killing" could be charged with murder if the facts could clearly be established. I also draw attention in the draft paper to the fact that where a doctor acts to do all that is proper and necessary to relieve pain with the incidental effect that this will shorten a patient's life, that will not be murder. We take that from the ruling given by Mr Justice Devlin in the Adams case, and it introduces what is termed "the double effect principle", which means that if an act has two consequences, one good and one bad, the bad consequences may, nevertheless, be acceptable depending upon the circumstances. We draw attention also to the different sorts of manslaughter, to killing in pursuance of a suicide pact and to the provision in the Suicide Act 1961. It is probably worth pausing for a moment on that. The traditional attitude of the common law was to condemn suicide, and it was regarded as a criminal offence until that was changed by the Suicide Act 1961. That abrogated, in terms, the rule of law under which it was a crime for a person to commit suicide; so it follows that it is also no longer a crime to attempt to commit suicide. That was a consequence of the 1961 Act, but the Act continues to place a high degree of responsibility on other people who assist the suicide or would-be suicide; so it is a statutory crime to aid, abet, counsel or procure a suicide or attempted suicide. It is an offence which carries a penalty of up to 14 years' imprisonment. The consent of the Director of Public Prosecutions is required to initiate those proceedings, but they are brought from time to time. In the draft paper we seek to define the elements of what is meant by "aiding and abetting". For present purposes it is probably sufficient to say that "aid and abet" generally is considered to refer to assistance and encouragement given at the time of the offence, in this case at the time of the suicide or attempted suicide, and "counsel or procure" usually refers more to advice and assistance given at an earlier stage. It will be necessary to demonstrate the requisite intent on the part of the person who is said to have aided or abetted, counselled or procured, and the draft paper sets out particularly one of the implications of that when it comes to publications which provide information or offer more in relation to ways to assist suicide. The other matter dealt with in the draft paper is an analysis of those cases in which the courts have had to deal with the issue of people who have either wanted themselves to decline full treatment, albeit in the knowledge that that will induce or result in their own death, and those cases of doctors who are faced with a difficult issue of whether to continue to provide treatment to people and whether they are obliged to do so; whether they are right to insist upon giving treatment to people who do not wish it to be provided. We are happy to seek to explain, as best we can, the cases in relation to that. Fundamentally, it is very important to draw a distinction between the case of people who are competent, who have the mental capacity to reach a decision, and someone who has not. Someone who has the mental capacity to reach a decision is entitled, as part of the right of autonomy or self-determination, to refuse further treatment even if that is irrational, or unreasonable, by anybody else's standards. Different considerations apply where the person is not competent to reach a decision. Then doctors generally would not be entitled unilaterally to refuse to continue treatment, but there are cases where they may do so, as the jurisprudence shows, where it is in the best interests of the patient and in accordance with a body of medical opinion to fail to continue to provide treatment. We go through a number of the cases which touch on those issues. The draft paper makes the point that the right of self-determination, as it were, that I refer to applies to people in institutions as well and applies to people who are in prison, and that has been so determined by the courts. That may be a sufficient general statement, I hope, to be of assistance.

  Chairman: Thank you very much.

  Q2074  Baroness Hayman: Perhaps I could I kick off with two questions, one of which is quite specific. You will forgive me, but I have only just read your paper. The very last sentence in it I did not quite understand. The judgment was that there was a state interest in preventing suicide but that the refusal of nutrition was not suicide. Is that correct?

  Lord Goldsmith: Yes. It is perhaps right to say, firstly, that what the law says is that if somebody refuses treatment in the knowledge that that will lead to death—the intention of that will lead to death—that is not suicide; and so it differs, in that respect, from the taking of a positive act.

  Q2075  Baroness Hayman: That nutrition and hydration were not considered treatment. This is what I am interested in, whether in those circumstances the refusal by an individual to take nutrition or hydration constitutes suicide. It just struck me as strange?

  Lord Goldsmith: It does not constitute, in the law's eyes, suicide to refuse treatment, or nutrition or hydration.

  Q2076  Baroness Hayman: Thank you. The broader point I wanted to ask you was that we have had a lot of discussion in the Committee about whether it is possible to prevent drift in an area like this if you have legislation on the statute book. There are some who are concerned that, although this bill or another bill might be extremely tightly drawn in the first instance, there would be an inevitability of it being more widely applied. I wanted to ask you whether, in general terms, that risk could be mitigated best by legislation that was permissive of specific acts, as Lord Joffe's bill would be, or whether there is any advantage in what I presume would be a potential other legal approach, which would be to provide a specific defence to the offences under the Suicide Act of aiding and abetting in particular circumstances, much the same circumstances as those contained in Lord Joffe's bill, for example, where the person was terminally ill, competent, had requested this in a sustained manner; whether there is a view about whether one legal approach or the other is easier to enforce, because one provides the possibility of ex post facto scrutiny by the DPP and the courts on this?

  Lord Goldsmith: A couple of observations, if I may. First of all, of course, the effect of Lord Joffe's bill, were it to become law, is not limited to affecting the provisions under the Suicide Act. The Suicide Act creates a statutory offence of aiding and abetting, counselling or procuring suicide, but, in fact, the act of someone who actually does the act which brings about the death is murder or some other form of homicide; so it goes beyond that. That is the first point. The second point is that I would not want to comment, as it were, more generally on the risk of drift, because that, I think, in itself is drifting into the policy areas, and I do not know where this would lead and I want to avoid that, for reasons that have been given. The final point is that any set of provisions, however they are put together, which identify the circumstances in which acts which otherwise would be unlawful are lawful—and that would be the effect of Lord Joffe's bill that an act which otherwise would be unlawful, indeed murder, would be lawful—obviously always poses issues for the law enforcement authorities as to how effectively they can be policed, but I am not sure that turns on the precise vehicle which is used in order to do it as opposed to the contents of the conditions which are laid down having seen how difficult it is to verify that those conditions have applied.

  Q2077  Chairman: To make sure that I have understood exactly what the position is, Attorney General—we summarised it a little bit with Lord Joffe earlier on, but I want to be sure that my grasp of it is as complete as it can be, because it is quite important—there is the general law of murder and there is the statutory offence, to which you have referred, under the Suicide Act.

  Lord Goldsmith: Yes.

  Q2078  Chairman: These are general offences. If Lord Joffe's bill became law and activities under it were otherwise covered by these provisions, either of murder or of the section in the Suicide Act, it would be a defence to show that what you had done, although within these provisions, was within the law as laid down in Lord Joffe's bill, provided the conditions which are set out for the lawfulness of the process were properly complied with. Is that correct?

  Lord Goldsmith: The effect of the bill would make lawful that which would currently constitute the offence of murder or aiding and abetting suicide. If a person acted inconsistently with the provisions of the Act, he or she would remain liable to criminal penalties for that Act. The only hesitation I have in giving an unqualified "Yes" to your question is that you put it in terms of "who would have to prove that the conditions were met". My hesitation was—and I would ask Mr Perry to add to it—upon whom would lay the burden of either showing, proving or disproving that the conditions have applied? Of course, the general rule is that if the Crown brings a claim, brings a charge, normally all the elements of that charge have to be proved beyond reasonable doubt by the prosecution. I am not sure—it is not clear in the bill—whether, in fact, the intention is that it should be some sort of burden on the doctor to prove that the conditions applied or whether it would be for the prosecution to disprove the availability of the defence.

  Q2079  Lord Taverne: I have two questions. The first is one of clarification. The evidence we received in The Netherlands was that many of the cases which fell outside the Dutch euthanasia legislation—what might be called cases of involuntary euthanasia—were those that involved babies who had no prospect of survival and were judged to be in considerable pain where they were killed, or allowed to be killed, but there could be no question of coming within the Bill because there was no consent. However, in those cases where there was a prosecution the defence advanced was one of necessity, which was often successful in the sense that it led to an acquittal. I want to be clear that, although there is the concept of necessity in English law, it could not possibly apply in our law to a case like that. That is correct, is it not?

  Mr Perry: Yes.

  Lord Goldsmith: Yes. I looked to Mr Perry for some confirmation there. The law has been subject to some comment and the precise boundaries of the defence of necessity have been under comment by the courts and, indeed, there are cases before the courts, not at all in the context that you raise but in other contexts, but I would certainly agree with Mr Perry that your proposition is right. It would not be a defence.

  Lord Taverne: The second question is a completely different one; a difficult one, I think. There are cases where people are not prosecuted. There was recently a lot of publicity about a policeman who had assisted his wife to die and he was told that he would not be prosecuted?

  Lord McColl of Dulwich: He was prosecuted.

  Lord Taverne: He was prosecuted?


 
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