The Bill in More Detail
22. The Bill "is based on the principle
of personal autonomy and patient choice, the right of each individual
to decide for themselves how best he or she should lead their
lives" (Q 70). For this reason the Bill applies only to competent
patients. In Lord Joffe's words, "only a competent patient
can make a decision in relation to his or her own life. For people
who are mentally incompetent there needs to be, perhaps, a different
system, but it cannot be based…on personal autonomy"
(Q 108). The Bill does not require positive evidence of competence,
simply that the attending physician shall "have no reason
to believe that the patient is incompetent"[10].
The only requirement for proof of competence comes in Clause 8
of the Bill, which provides that, "if in the opinion of either
the attending or the consulting physician a patient who wishes
to make or has made a declaration may not be competent, the attending
physician shall refer the patient to a psychiatrist for a psychiatric
opinion" and that "no assistance to end that patient's
life may be given unless the psychiatrist has determined that
the patient is not suffering from a psychiatric or psychological
disorder causing impaired judgement, and that the patient is competent"[11].
23. Clause 8 suggests however that there could
be a distinction to be drawn between incompetence, which is defined
in the Bill as "not having the capacity to make an informed
decision"[12], and
psychiatric or psychological disorder (for example, depression),
which might be temporary and treatable. This distinction was exposed
in the course of oral evidence, when Lord Joffe expressed the
view that "the key to it is really competence to make the
particular very serious decision which has to be made, and we
might not need anything about psychiatric illnesses, which I think
muddies the position" (Q 151). Lord Joffe accepted however
that this issue merited further exploration in the light of medical
advice.
24. The Bill sets out[13]
the actions which must have been completed before a patient can
make a declaration that he or she wishes either assisted suicide
or voluntary euthanasia. The Bill makes clear[14]
that the request must originate from the patient. In oral evidence
to us Lord Joffe's stated that, "it is the patient
who must initiate the request for assistance to die, not the physician,
and no physician or other member of the medical team is entitled
to assist the patient to die without the patient having initiated
the request" (Q 70). Lord Joffe speculated subsequently(Q
131) that, in circumstances where a patient is suffering unbearably
towards the end of his or her life and has not raised the subject,
there might be a duty on the doctor to raise it as one of the
available options, though he has since proposed an amendment designed
to make clear that there should be no such duty. However, nothing
in the Bill as it stands prohibits a doctor or nurse suggesting
assisted suicide or voluntary euthanasia to a patient.
25. The Bill itself does not define precisely
at which point a patient could be deemed to have made a request.
In his oral evidence Lord Joffe recognized (Q 140) that some requests
to die might not be seriously intended but might be rather a cry
for help and that the Bill should be amended in such a way as
to make clear that it is a formal request which would start the
processes laid down in the Bill and that such a request should
be made in writing and should be signed by the patient. Lord Joffe
has proposed an amendment to cater for the situation where a patient
cannot write.
26. The attending physician must decide that
the patient is suffering from a terminal illness, which is defined
in Clause 1 of the Bill as an illness which "is inevitably
progressive, the effects of which cannot be reversed by treatment
(although treatment may be successful in relieving symptoms temporarily)
and which will be likely to result in the patient's death within
a few months at most". The attending physician must also
have concluded that the requesting patient "is suffering
unbearably as a result of that terminal illness". Clause
1 defines "unbearable suffering" as "suffering
whether by reason of pain or otherwise which the patient finds
so severe as to be unacceptable". It is clear from this,
and from Lord Joffe's evidence to the committee, that the definition
of "unbearable suffering" is intended to be subjective—in
Lord Joffe's words, "it is not what a doctor might say is
the norm; it is that particular patient's suffering which is the
subject matter of his decision"
(Q 70). Lord Joffe does, however, add a proviso (Q 142)—that
the doctor must assess "whether it is reasonable for the
patient to have come to that conclusion". And, as Clause
1 makes clear, "unbearable suffering" might encompass
suffering other than as the result of physical pain—what
has been termed "existential suffering" (Q 70), including
feelings of loss of dignity or self-worth—but does not include
loss of competence resulting from suffering.
27. The requesting patient must be informed by
the attending physician of his or her medical diagnosis, of the
prognosis of the disease, of the process of assisted suicide or
voluntary euthanasia and of the alternatives, "including,
but not limited to, palliative care, care in a hospice and the
control of pain"[15].
Clause 3 of the Bill places on the attending physician an obligation
to ensure that "a specialist in palliative care who shall
be a physician or a nurse has attended the patient to discuss
the option of palliative care"[16].
Lord Joffe has made clear in oral evidence that such a consultation
should not be construed as a guaranteed offer of palliative care.
"All we can say is that, if the patient wants to have palliative
care, he should ask for it and they should try to arrange it;
but, if they do not or it is not possible, then the patient must
make up his mind. That is what autonomy is about. It is about
choosing between the options available to you rather than the
ones you would like to have" (Q 148).
28. Once the attending physician has completed
the various actions placed upon him in the Bill, and given that
the patient has not withdrawn his or her application, the process
must be repeated at the hands of a consulting physician in order
to provide the safeguard of a second opinion. The Bill defines
both the attending and consulting physicians in Clause 1. The
consulting physician must be "practising in the National
Health Service" and must be someone who is "qualified
by speciality to make a professional diagnosis and prognosis regarding
the patient's illness and who is independent of the attending
physician". Lord Joffe explained in his oral evidence the
thinking behind the requirements for NHS practice and for independence.
"We do not want," he said, "a private practice
to build up in relation to assisted dying where one or other consultant
actually makes this the main service that they offer patients";
and "we do not want partnerships to be developed in terms
that automatically a doctor within the attending physician's practice
has an ongoing relationship with a particular consultant, to whom
all patients are passed" (Q 70).
29. Clause 4 of the Bill sets out the requirements
which must be met in the event that a patient, having completed
the various steps required under Clauses 2 and 3, persists with
his or her request and wishes to make a declaration. This must
be witnessed by two individuals, of whom one must be a solicitor.
The patient must be "personally known" to each witness
or must have "proved his identity", and it must "appear"
to each witness that the patient is of sound mind and has made
the declaration voluntarily. The solicitor must also be satisfied
that the patient understands the effect of the declaration[17].
In answer to questions, Lord Joffe made clear that it was not
intended that the witnesses should have in-depth knowledge of
the patient. "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" (Q 88).
30. Clause 4 also precludes members of the medical
care team and various categories of people who might have a vested
interest in the patient's death from acting as witnesses; and
it provides that a declaration, once made, shall come into force
after the requisite waiting period (defined in Clause 1 as 14
days, commencing on the date of the request) and shall remain
in force (unless revoked) for six months. Revocation may be made
at any time "whether orally or in any other manner without
regard to [the patient's] physical or mental state"[18].
31. Clause 5 provides for the attending physician
to act on the patient's request for assisted suicide or voluntary
euthanasia once the actions set out in Clauses 2 to 4 have been
completed and provided that the patient has not revoked his declaration.
The executive clauses of the Bill do not distinguish between providing
the patient with the means to end his or her own life and ending
the patient's life for him or her. They are expressed in terms
of "assisting the patient to die", which is defined
in Clause 1 as "the attending physician, at the patient's
request, either providing the patient with the means to end the
patient's life or, if the patient is physically unable to do so,
ending the patient's life". In his evidence Lord Joffe underlined
this distinction. "The attending physician may only provide
the patient with the means to end the patient's life, the obligation
being or the option being for the patient to decide whether to
take these drugs or not as he or she chooses. The only exception
to this is where the patient is physically unable to take the
medication" (Q 70).
32. With the exception of Clause 8 (Psychiatric
Referral), which arguably would sit better earlier in the text,
the remainder of the Bill deals with the actions to be taken in
the wake of a patient receiving assisted suicide or voluntary
euthanasia, with the legal protection of medical personnel involved
in the act and with the administration of drugs to patients suffering
severe distress. Clause 7 attempts to deal with the situation
of persons, and especially physicians, with conscientious objections.
Subsection (1) provides a general employment immunity to persons
with conscientious objections from being obliged to participate
in any way in the process of assisted suicide or euthanasia provided
for in the Bill, while subsections (2) and (3) require attending
and consulting physicians with conscientious objections to "take
appropriate steps to ensure that the patient is referred without
delay" to attending or consulting physicians who do not have
such objections. In his oral evidence Lord Joffe recognized the
difficulty, to which the Joint Committee on Human Rights had drawn
attention[19], that an
obligation to refer a requesting patient to a colleague could
nonetheless be regarded as an infringement of conscience, and
he accepted that a new "conscience clause" would be
needed in the event that the Bill were to move forward, which
would place on the patient the responsibility for finding a physician
without conscientious objection.
33. Clause 10 of the Bill provides that a physician
or member of a medical care team who in good faith complies with
a patient's request to die in accordance with the provisions of
the Bill shall not be in breach of either the law or any professional
oath or affirmation, while Clause 11 makes it an offence to falsify,
participate in the falsification of or destroy a declaration.
34. Clauses 13 and 14 provide for the documentation
necessary for an audit trail of the operation of the bill. The
attending physician must collect the relevant documents, including
the patient's declaration and the evidence that all the qualifying
conditions have been met, and forward them to a monitoring commission
within seven days of the patient's death. The commission, which
shall consist of three members—a registered medical practitioner,
a legal practitioner and a lay member "with first-hand knowledge
or experience in caring for a person with a terminal illness"[20],
must assess the records and decide whether or not the terms of
the law have been fulfilled.
35. Clause 15 provides that "a patient suffering
from a terminal illness shall be entitled to request and receive
such medication as may be necessary to keep him free as far as
possible from pain and distress". Lord Joffe explained the
need for this section, which appears out of character with the
rest of the Bill, as follows: "There is clear evidence that
many patients do not get sufficient pain relief, for any one of
a number of reasons. Research published by CancerBACUP this year
demonstrates that a large number of patients are not even consulted
about their pain relief. Research from the Nuffield Trust last
year found that a considerable number of patients actually suffered
unnecessary pain which could have been prevented". Lord Joffe
added: "There is a further factor which is also very relevant
to this clause, and that is that it is clear that there are a
number of doctors who are concerned about using the double-effect
principle in order to ease the pain of their patients because
they are frightened that they may be prosecuted" (Q 70).
36. The Bill as drafted does not extend to Northern
Ireland. Lord Joffe has, however, announced his intention to exclude
Scotland also from its ambit on the grounds that the issues covered
by the Bill are devolved to the Scottish Parliament.
37. Lord Joffe described his Bill to us as "a
deeply humane piece of legislation which will protect patients
as well as their physicians and families" (Q 70). Lord Joffe
has pointed out that his Bill "contains many more safeguards
than other-end-of life practices which hasten death in the United
Kingdom" (Q 70) and that "in all these cases there
is no legislation, no safeguards whatever. There are guidelines
in relation to withholding treatment and advice given by the General
Medical Council or the BMA… but there is no legislation"
(Q 98).
38. We now proceed to examine the fundamental
ethical principles underlying the Bill (Chapter Three) and a range
of practical issues concerned with its implementation in the event
that it were to become law (Chapter Four).
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