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

Examination of Witnesses (Questions 2240 - 2249)



  Q2240  Chairman: We do not know. It is one thing to say there have been no prosecutions and therefore the law must be liberally interpreted if you know in fact that there have been infringements of the law, but if you do not know whether there have been infringements or not you cannot make that deduction. Are you able to help us on that point?

Dr Rehmann-Sutter: I remember one case at least where it was not an issue of selfish interest but of lack of competence. It was a case in Basle when EXIT tried to help a depressive patient to die and the official—-

  Q2241  Baroness Finlay of Llandaff: Chief Medical Officer of the canton?

Dr Rehmann-Sutter: That must be it. He intervened and prevented this assistance from being provided by reference to this law. Otherwise it would have been broken in some interpretation because the law does not say explicitly whether in any cases of depression it means directly that there is lack of competence.

  Q2242  Chairman: So he intervened to suggest that the interpretation should cover that particular circumstance?

Dr Rehmann-Sutter: Yes. There is now a big discussion within EXIT, and I am sure you have heard about that, about finding special cases of depressive patients or patients with other kinds of psychiatric diseases in a state of clarity where they cannot be excluded formally from the position of being competent. What we have said in our recommendation is very general. The law should follow the rule that whenever the desire to die is a symptom of the disease then the person needs care and treatment and not assistance for suicide, but in practice, of course, the question is how to decide in a particular case at a particular time whether this is a symptom of the disease.

  Q2243  Chairman: There might be situations in which there was some mental condition affecting the patient but which did not in fact result in the patient not being competent to take a decision that they wanted to have suicide; is that right?

Dr Rehmann-Sutter: This is the case under discussion. In the discussions in the Commission we think that these cases can happen, that the fact of the presence of a psychiatric disease, depression for example, is not in each case an exclusive condition for enough competence. This term "competence" needs interpretation relative to what people in psychiatric conditions can experience. That was also an important point for us. It needs a long term caring relationship between the one who assesses the capacity and the patient himself. Merely a formal encounter resulting in expertise will probably not be enough evidence for that.

  Q2244  Chairman: Can you tell us a little bit more about the Commission that you head up and which you have been speaking for this afternoon? When was it first set up?

Dr Rehmann-Sutter: In 2001, so it is very young.

  Q2245  Chairman: Vigorous therefore; it has the vigour of youth. It was set up by the Federal Parliament?

Dr Rehmann-Sutter: Indirectly, yes. The Parliament made a law which asked the government to install such a committee.

  Q2246  Chairman: And then the ministers appointed the members of the Commission?

Dr Rehmann-Sutter: Right.

  Q2247  Chairman: What period of office do you hold?

Dr Rehmann-Sutter: It has an upper limit of 12 years.

Dr Leuthold: With re-election after three years.

Dr Rehmann-Sutter: There is a maximum of three re-elections and we are about one third medical professions, one third ethical professions, theologians and philosophers—I myself am a philosopher—and one third additional experts who are needed, for example, in law, biology, psychology, etc.

  Q2248  Chairman: The function is to advise on biomedical ethics but does that relate solely to the ethics of the medical and associated professions or does it include ethical issues that might be of a biomedical character but related, for example, to participation by non-medics in assisted suicide?

Dr Rehmann-Sutter: I would say the latter, the more general.

Baroness Jay of Paddington: I am sorry to return to this question about ALS and assisted suicide but Lord Joffe has shown me, and I have read it before and I had forgotten, a reference to a case which must have been quite familiar to you about a woman in this country who was almost completely paralysed after a severe brain haemorrhage and she was in care for four years and then signed up with EXIT, but obviously was in a situation where it would have been very difficult for her to administer a lethal dose. Her husband created—and there is a drawing of it—a rather extraordinary contraption by which she was enabled through a kind of catheter arrangement—and I knew I had seen something like this, which is what reminded me, and Lord Joffe with his brilliant filing system had it—which enabled her with this process technically to administer the dose. This case was reported in the normal way through the official EXIT procedures because it was EXIT she was involved with, was considered and was agreed to be the kind of assisted suicide which was, I suppose one should say, technically at least within the law as described, but frankly, to the common-sense person looking from the outside does seem to have been verging on active support and active euthanasia but was regarded as being within the guidelines. There must presumably be quite a lot of cases of this kind, and this is where perhaps I am not parting company with you, Chairman, but am concerned about whether, if they have not been prosecuted, this means that they are or are not happening.

Chairman: The truth about that case is that it was held to be within the strict letter of the law because they constructed this apparatus and he would not have found it necessary to do that if they were going to interpret the law more generously.

Baroness Jay of Paddington: Quite, but what we are discussing is the grey area which you referred to much earlier in our discussion. I think the grey area must have become quite extensive.

Chairman: My point is the simple one, that unless we know that the law has been broken we cannot make any deduction from the fact that there have not been prosecutions. That is the only point I was trying to make, although I was perhaps making it rather at length. I understand that it is possible to have a borderline, which is quite difficult, and ingenuity was apparently required to get over the borderline into the lawful area in that particular case.

Lord Joffe: I spoke to Dr Bosshard who gave evidence to us and who wrote this article, and he said that there was really no need for the husband of the patient who took it, who was a technician and liked constructing ingenious devices, but that there are other medically approved devices which would have served the purpose just as well.

Baroness Jay of Paddington: This does look quite bizarre.

  Q2249  Chairman: He wanted to demonstrate his ingenuity. Who knows, he may patent his device. Thank you very much indeed for your help in an area of very considerable interest and difficulty. You have given us a very clear picture of the situation as it exists here, although of course, obviously there are areas of great difficulty in applying a law of this kind in the many varied circumstances which the law may have to address. Thank you both very much and, as I say, when you read the transcript of the evidence I hope it will be clear and you will realise how wonderful the account was that you gave to us all.

Dr Leuthold: Thank you.

Dr Rehmann-Sutter: Thank you. It has been a privilege to have these discussions.

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