Select Committee on Assisted Dying for the Terminally Ill Bill First Report

CHAPTER 1: Introduction

1.  We were established following the decision of the House on 10 March 2004 to appoint a select committee to examine and report on the Assisted Dying for the Terminally Ill Bill [HL]. The terms of reference for a select committee on a bill are the bill itself. The committee's orders of reference are at Appendix 1. The committee has the power to decide whether the bill should proceed or not; and, if it is to proceed, the committee may amend the bill. In this opening chapter we set the scene for our inquiry, describe our modus operandi and outline the structure of our report. We also set out briefly, as a baseline for what follows, the present legal position regarding assisted dying, and we distinguish between the different terms which we use to refer to the various aspects of the subject.

Setting the Scene

2.  This subject was last examined by Parliament in 1993/4 through the Select Committee on Medical Ethics. In its report[1] the committee concluded that there should be no change in the law on intentional killing, which it regarded as the cornerstone of law and social relationships, even in circumstances where the person concerned was terminally ill and had requested such action. The committee did not believe that it was possible to set secure limits on voluntary euthanasia and that "it would be next to impossible to ensure that all acts of euthanasia were truly voluntary and that any liberalisation of the law was not abused"[2]. There was also concern that "vulnerable people—the elderly, lonely, sick or distressed—would feel pressure, whether real or imagined, to request early death" and that "the message which society sends to vulnerable and disadvantaged people should not, however obliquely, encourage them to seek death but should assure them of our care and support in life"[3]. The committee also drew attention to the increasing effectiveness of palliative care to relieve the distress of terminal illness in the great majority of cases.

3.  Since the last select committee reported, there have been a number of developments. First, legislation to permit assisted suicide and/or voluntary euthanasia has been enacted in three countries overseas—the US State of Oregon (1997), The Netherlands (2002) and Belgium (2002). The legislation concerned varies from one country to another. In Oregon, for example, it permits only assistance with suicide, in Belgium is legalises only voluntary euthanasia, whereas in The Netherlands both practices are now permitted by law. Second, as Chapter Six of our report indicates, opinion polls continue to suggest that a majority of the public would support a change in the law and that such support has remained steady—and perhaps increased slightly—during the last 10 years. Third, the ability of medicine as a whole to defeat life-threatening illnesses and of specialist palliative care to relieve the suffering of terminal illness has continued to improve. And there has been continued improvement in doctor/patient relationships in terms of open and frank discussion of diagnosis, prognosis and possible side-effects of treatment, reflecting an improvement in skills and ethics training, which are now taught in all undergraduate and some postgraduate clinical courses in the United Kingdom. There have also been instances during the last few years of United Kingdom citizens travelling to Switzerland in order to take advantage of that country's laws on assisted suicide.

4.  In 2003 Lord Joffe introduced into Parliament his Patient (Assisted Dying) Bill, which included provisions for a competent adult who was suffering unbearably as the result of a terminal or serious, incurable and progressive illness to receive medical help to die at his or her own request. The Bill was given a Second Reading but did not proceed further[4]. On 10 March 2004 Lord Joffe introduced a second Bill (Assisted Dying for the Terminally Ill), the provisions of which were limited to terminally ill patients and which included a requirement for a discussion with applicants of the option of palliative care. In the light of these changes the Academy of Medical Royal Colleges adopted a neutral stance on the ethics of the Bill, while raising concerns on its provisions. The Bill was give a Second Reading, and it is this Bill which was referred to us for examination. The 2003/4 Parliamentary session ended while we were carrying out our remit. The Bill was re-introduced and given a formal Second Reading, and our remit was renewed (see Appendix 1).

Modus Operandi

5.  We held our first meeting on 7 July 2004, after which we issued a call for written evidence to over 100 organisations with a known or presumed interest in the Bill (see Appendix 2). At the same time we invited contributions from individuals who wished to offer us their perspectives. Some 60 organisations answered our call for evidence, and we received over 14,000 letters or emails from individuals. While the great majority of these latter were from people briefly expressing either support for or opposition to the Bill, a significant minority came from persons who had either studied the subject of assisted dying or had experience of the operation of such legislation in other countries or were involved in professions (e.g. doctors and nurses) whose work would be closely affected if the Bill were to become law[5].

6.  We began taking oral evidence in September 2004. Since it was not practicable within the constraints of our timetable to hear evidence from other than a small number of those who had written to us, we focused our attention on three groups—the leading organisations advocating or resisting the Bill (the Voluntary Euthanasia Society and Right to Life, respectively); those organisations which represented the interests of people or professions who would be most directly affected if the Bill were to be enacted; and selected individuals with recognised knowledge or experience of assisted dying. We also visited the US State of Oregon, where legislation comparable in some respects to that envisaged in the Bill has been in force since 1997; The Netherlands, where there has been recent legislation with similar provisions to those envisaged in the Bill but where the legal status of voluntary euthanasia has been evolving over some 30 years; and Switzerland, where assisted suicide is permitted under yet different circumstances. We would like to express our gratitude to all those, both in this country and overseas, who took much time and trouble, in both written and oral evidence, to explain their views to us and to offer us the benefit of their experience. Without their help this report could not have been written. A full list of the organisations who gave us written or oral evidence and of the people who gave oral evidence to us in a personal capacity is shown at Appendix 3. We should like to thank also our Clerk, Mr Robert Preston, and our Specialist Advisers, Dr Calliope Farsides and Dr Richard Hillier, for their help with our task.

Structure of the Report

7.  Though our terms of reference are the ADTI Bill itself, it is not possible to fulfil our remit simply by examining the text of the Bill. Much of the debate surrounding the issue of assisted dying is concerned with the principles underlying the Bill, in particular whether terminally-ill people should have the right to receive assistance to end their lives. Indeed, it is fair to say that the great majority of the letters and emails which we have received are concerned with the principles rather than with the detail of the Bill. To proceed to scrutinise the Bill without first examining these issues of principle might be seen as implying that the principle of assisted dying is taken as read and that all that matters is the detailed provisions of the Bill.

8.  For this reason, after beginning our report (Chapter 2) with a description of the Bill, we proceed (Chapter 3) to examine the ethical principles underlying it. The central feature of the argument which has been put forward to us in support of the Bill is the principle of personal autonomy—that terminally-ill people should have the right, albeit limited by specified conditions, to decide when and under what circumstances they should die. On the other side of the debate, the principle of the sanctity (or inviolability) of human life has been put forward, stating that the law should not permit the deliberate taking of innocent life. We have felt it necessary to subject both these first principles to rigorous scrutiny at the outset of our report.

9.  We then move on from theory to practice. In Chapter 4 we consider a range of issues which are concerned with the reality of assisted dying and which lie between the first principles and the detailed provisions of the Bill. As examples of these, we have examined the claim made by supporters of the Bill that euthanasia is happening in practice in Britain today and that terminally-ill people would be better protected if the practice were to be covered by statutory safeguards. We have examined also the argument put forward by the Bill's opponents that advances in palliative care in recent years have much reduced the need for such legislation and that, with further such advances in prospect, the proper answer to the suffering of the terminally-ill is better and more widely-available palliative care and support rather than assistance with suicide or voluntary euthanasia. We have also considered the argument—what is sometimes referred to as the "slippery slope"—that the enactment of Lord Joffe's Bill, or of one like it, would open the door to extension or abuse of assisted dying; and we have explored whether legalising such activities would, as some people believe, undermine or, as others have suggested, improve the trust which exists between doctors and their patients.

10.  In Chapter 5 we summarise the evidence we have received regarding the practice of assisted dying in places where this has been legalised. In doing so we have drawn heavily on the first-hand experience which we gained through short but intensive visits to the State of Oregon, to The Netherlands and to Switzerland; and we have summarised the current situation in Belgium.

11.  While opinion has often been divided within our Committee on both the principles underlying the ADTI Bill and on its practical effects, there has been unanimity on one point at least—that, while the most careful account must be taken of expert evidence, at the end of the day the acceptability of assisted suicide or voluntary euthanasia is an issue for society to decide through its legislators in Parliament. We have therefore sought to establish a reliable picture of what the British people as a whole think about the subject. Though the timetable for our inquiry prevented us from conducting new research on the subject, we did commission a review of opinion surveys conducted over the last ten years, including both the population at large and specific groups of people (e.g. doctors and nurses) who would be directly affected if the Bill were to become law. In Chapter 6 we summarise the results of this review, and alongside this we set our analysis of the response to the invitation issued in July 2004 to individuals to make their personal views known to us.

12.  In Chapter 7 we present our conclusions. It is clear to us that, with a dissolution of Parliament likely in the near future, there would not be time for Lord Joffe's Bill to complete its various stages through both Houses even if there were to be consensus as to its acceptability. We have therefore decided that the most appropriate course of action for us in these circumstances is to present the evidence which we have received as a basis for a debate by the House early in the next session of Parliament and to recommend that, in the event that another bill should be introduced seeking to legalise assistance with suicide or voluntary euthanasia for terminally ill people, it should be referred after a formal Second Reading to a Committee of the whole House for examination. We set out also in Chapter Seven our thoughts on a number of key issues which have come to our attention in the course of this inquiry, and we would hope that these would be considered seriously by those who may frame any future bill on the subject.

The Present Legal Position

13.  The Bill which we were set up to examine seeks to amend the present law, so it is necessary to be clear about what the present law is. We were helped in establishing this baseline, so to speak, for our inquiry by the Attorney-General, who kindly provided us with a memorandum[6] summarising the law both on assisted suicide and voluntary euthanasia and on the refusal of medical treatment and food or fluids by individuals and who appeared before us to give oral evidence.

14.  According to the Attorney-General, "the traditional attitude of the common law was to condemn suicide until the law was changed by the Suicide Act 1961. The 1961 Act provided: 'the rule of law whereby it is a crime for a person to commit suicide is hereby abrogated'. One result of the 1961 Act is that it is no longer a crime to attempt suicide. However, the 1961 Act continues to impose a considerable measure of responsibility upon persons other than the suicide or would-be suicide. The 1961 Act makes it a statutory crime to aid, abet, counsel or procure a suicide or attempted suicide and the offence carries a penalty of up to fourteen years' imprisonment"[7].

15.  "Deliberately taking the life of another person, whether that person is dying or not, constitutes the crime of murder. Accordingly, any doctor who practises mercy killing can be charged with murder if the facts can be clearly established"[8]. In oral evidence, however, the Attorney-General confirmed that it is not murder "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" (Q 2073)—the so-called double-effect principle, of which we shall have more to say later in our report. Nor does the refusal of life-prolonging treatment by a patient constitute suicide, which in law requires a "positive act" (Q 2074); and a prisoner who refuses food does not in law "commit" suicide. By the same logic someone who does not take steps to force a person to eat or a patient to receive treatment is not regarded as aiding and abetting suicide (Q 2104).

16.  This does not mean that anyone who is convicted of assisting suicide or "mercy killing" will automatically receive a prison sentence. Each case is considered on its merits by the Crown Prosecution Service in order to decide whether the evidence presented supports the charge and, if so, whether a prosecution would be in the public interest. Prosecutions are brought and, where those charged are found to be guilty, sentences of varying severity are imposed which are intended to reflect the circumstances of the case. The Director of Public Prosecutions does not however publish prosecution guidelines or criteria in such cases. When asked whether to do so might not make the legal position clearer, the Attorney General told us:

"The question was raised in the very sad case of Dianne Pretty whether or not the Director of Public Prosecutions could and should produce advance guidance as to the criteria that he would apply, but the view has been taken by the Director that he ought not to attempt to do that, that he should continue with the policy that he presently has, which is of reviewing the circumstances of any case presented to him after a police investigation, deciding on the circumstances of the case whether a prosecution should be brought or not. Part of the reasoning for that… is that it would be inappropriate… for him to issue a policy the effect of which was to say that 'I, the Director of Public Prosecutions, have decided to suspend or not to apply part of the law which Parliament has put in place and has not removed'" (Q 2094).

17.  The effect of the ADTI Bill, were it to be enacted, would be to "make lawful that which currently would 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" (Q 2078). The ADTI Bill seeks to remove criminal penalties from those who assist a competent and terminally-ill person who is suffering unbearably to end his or her life or who end that person's life with his or her consent. Though the Bill provides for a terminally-ill person to request assistance to die, there is in fact nothing in law to prevent such a request being made now. The change in the law, were the Bill to be enacted, would lie in the freedom from prosecution of persons who acceded to such a request within the conditions set out.

Terminology

18.  We have encountered in the course of our inquiry a number of terms used to describe the actions envisaged in the Bill and we have felt the need to agree on standard terminology in order to achieve precision in thinking. We have avoided, on the one hand, terms (such as "killing") which some find offensive and, on the other, phrases (such as "assisted dying") which others regard as either over-euphemistic or inaccurate (or both)[9]. Bearing in mind that in Lord Joffe's Bill there are two kinds of action envisaged in acceding to a request by a competent and informed person for assistance to end his or her life, we have used the term "assisted suicide" to mean providing someone with the means to end his or her own life and "voluntary euthanasia" to mean ending another person's life at his or her own request.

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1   HL Paper 21 Back

2   HL Paper 21, Paragraph 238 Back

3   HL Paper 21, Paragraph 239 Back

4   Lord Hansard 6 June 2003 Cols 1585-1690 Back

5   A selection of these submissions will be published separately  Back

6   See Volume II: Evidence, HL Paper 86-II, Page 578 Back

7   See Volume II: Evidence, HL Paper 86-II, Page 580 Back

8   See Volume II: Evidence, HL Paper 86-II, Page 579 Back

9   It has been suggested to us, for example, that assisting the dying is the role of doctors and nurses providing care, not of those who help people to take their own lives. Back