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


Examination of Witnesses (Questions 2100 - 2114)

THURSDAY 20 JANUARY 2005

RT HON LORD GOLDSMITH QC and MR DAVID PERRY

  Q2100  Baroness Thomas of Walliswood: I also am aware of that.

  Lord Goldsmith: I think the whole issue of how far the courts can go is a very interesting and important jurisprudential and political question as well. The courts plainly do take account in different ways of changing conditions, social, medical, scientific conditions in different ways, but the courts also operate within the primacy of the law which is laid down by Parliament, and whilst the courts have had to grapple with, so it seems to me, the issues of refusal of treatment as medical technology and facilities become more and more advanced, they have sought to do it always by reference to clear existing principles, such as the right of self-determination and the issues in relation to capacity of the individual. I think to some extent I would probably leave it to others to say whether you can discern a trend of movement by the courts generally one way or another. For the purposes of the Bill, it seems to me important just to recognise that the law which Parliament has laid down in the Suicide Act will still remain the law, however medical conditions change, and the law which the courts will need to apply.

  Q2101  Lord McColl of Dulwich: Does the last page, paragraph 34, of your very helpful written evidence mean that the state has an obligation to prevent suicide of a prisoner by some act of a process like hanging but no obligation to prevent him committing suicide by refusing nutrition and hydration?

  Lord Goldsmith: I will ask Mr Perry to answer that.

  Mr Perry: That is correct. The position is that the provision of treatment involves an invasion of the individual's bodily integrity, and the law respects self-determination in that respect. If it were not to respect it, then the provision of treatment would amount to an assault or trespass. However, where there is an individual in prison who would seek to commit suicide, the state is under an obligation to ensure that they are not permitted to take steps to do an act whereby they take their own life.

  Q2102  Lord McColl of Dulwich: So nutrition and hydration is regarded as treatment?

  Mr Perry: Yes.

  Lord McColl of Dulwich: So he can commit suicide in a prolonged painful and uncomfortable way but not in a quick way?

  Q2103  Chairman: Is it right to say that a prisoner is entitled to refuse food or drink?

  Mr Perry: Yes.

  Q2104  Chairman: But the authorities are under a responsibility to take all reasonable care to ensure that there are no means presented to a person in custody by which he or she would be able to kill themselves. I have a feeling that, in fact, I was a party to the case you referred to in paragraph 32. I am not absolutely certain of that, but I am very familiar with that line of authority. I think it is the case that there is a general rule of that kind in relation to people in the care of the state, that, for example, a thing on which it would be easy to hang a rope, or providing a rope, or something of that sort, would be regarded as a breach of duty, whereas the state is not obliged to force a person to eat or drink if they decide that they do not want it?

  Lord Goldsmith: May I add one point, because I know Lord McColl used the expression "commit suicide". It goes back to what I said before, that the law would not regard somebody who refuses to do something as committing suicide and, therefore, someone who does not take steps to force them to eat or force them to take treatment is not regarded as aiding or abetting suicide. If somebody takes a positive act by hanging himself or whatever else it may be, then that would be a suicide and people who assist with that by an act would be in a different category. The law has a tight definition.

  Q2105  Lord Taverne: How far has the law changed in one respect? It used to be the practice for Home Secretary's to force the prisoners who went on hunger strike, and it was the Home Secretary at the time who decided that that should no longer be done. The Bobby Sands case is an obvious one. Would the Home secretary now be in breach of the law if they went for force feeding?

  Lord Goldsmith: Yes, unless the person who was refusing food was not competent to take that decision. There is certainly at least one court decision where the court has authorised force feeding in circumstances where the view was taken by a judge that the individual was not competent to take a decision because of the medical condition from which he was suffering, to be fair, evidenced, I think, to some extent by what he was doing in relation to force feeding. This was Ian Brady.

  Q2106  Baroness Hayman: It is in a sense a circular argument, is it not?

  Lord Goldsmith: Yes. The court reached a conclusion on all the evidence that he was not competent.

  Q2107  Baroness Hayman: But he was not sectioned under the Mental Health Act?

  Mr Perry: He was detained as a convicted murderer, but he was being detained in a secure psychiatric hospital.

  Q2108  Chairman: It is probably not a very fair question for me to ask, but what is the underlying principle that requires due care to be taken, as, for example, in Reeves' case?

  Lord Goldsmith: It is not a fair question.

  Q2109  Chairman: I readily acknowledge that?

  Lord Goldsmith: With diffidence, I would suggest that the way we would put it is to say that, once the state has taken responsibility for an individual by taking him under their charge, then the state comes under an obligation to exercise reasonable care in relation to the welfare and well-being of that individual.

  Q2110  Baroness Finlay of Llandaff: I am sorry; this is going to be a terribly badly worded question. You referred earlier on to the principle of best interest. It has been suggested to us that if this Bill became law then the possibility of physician assisted suicide and euthanasia would be a therapeutic option, because it would be part of the therapeutic armamentaria of the doctor, and once something is a therapeutic option, then it has the potential to fall into the patient's best interests because it would not be a therapeutic option if it were never in somebody best interests. At the moment we do not consider killing as within the realm of best interest, so it is never a therapeutic option as defined and in the law. I wonder whether there would be a position in law whereby it could be deemed to be an obligation on physicians to offer assisted suicide or euthanasia to all patients to whom it might potentially pertain because it could potentially be deemed to be in their best interests, linking into them being informed of all of the therapeutic options available to them?

  Lord Goldsmith: I am just considering the circumstances in which this question actually arises. The context in which I referred to best interests, and which the cases refer to, are circumstances where the individual is not competent to make a decision. As the Bland case shows, there are circumstances in which the individual, not being competent, is therefore not in a position to say, "I do not want any further treatment". Notwithstanding that, are the medical officers under a duty or are they entitled to decline to provide further treatment because they regard it as in that person's best interests because they are in a vegetative state or whatever it may be? Where the person is competent, that is not a question which arises; and my understanding of the bill is that one of the key conditions under which it would apply would be that the person was competent to make that decision and was competent, as I have said, right down to the moment of death.

  Q2111  Baroness Finlay of Llandaff: So what would be the position in law if a doctor who had a patient in front of him and decided to not offer something to that patient which other doctors would consider was a therapeutic option for that patient? For example, a person with a malignant disease where the doctor took a decision to withhold the information that radiotherapy and chemotherapy were available, whereas if that patient were being treated by somebody else, he would have been offered that therapeutic option. Is it an offence in law to withhold that information or not?

  Lord Goldsmith: I do not see why it would be an offence in law. I am focusing upon the criminal offences in law and not touching in any way—it would be right outside my field of expertise—upon what the standards of professional ethics required by the relevant professional bodies would be. I put that out of my mind. I do not think that declining to invite a patient to consider the possibility of suicide would be a criminal offence.

  Q2112  Chairman: Thank you very much indeed for taking the time to come along, Attorney General, and to Mr Perry also for coming along and helping to eliminate an area which has certain difficulties in it for us to fully understand. So far as the draft paper is concerned that you have given us, we would perhaps invite you to let us know if you want any changes to be made in it. Otherwise we would be likely to use it as part of the evidence. I do not myself notice anything that has come up in the course of the discussion which modifies it, but you may want to let us know.

  Lord Goldsmith: I will do that, and I will do that very shortly.

  Q2113  Chairman: It may be just a little helpful to slightly extend the passage that we were dealing with earlier about the form making the distinction as plainly as possible to make it between the two possible cases, a case where there is no arrangement made in this country, all the arrangements are made abroad, and cases where the arrangements are started being made in this country and continue abroad.

  Lord Goldsmith: Yes.

  Q2114  Chairman: As far as I am concerned, I think what you have put is quite clear, but it may be possible to make it even clearer. Thank you very much.

  Lord Goldsmith: We will do that.





 
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