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18 Nov 2008 : Column GC77

Grand Committee

Tuesday, 18 November 2008.

The Committee met at half-past three.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) in the Chair.]

The Deputy Chairman of Committees (Baroness McIntosh of Hudnall): It has been agreed that should either of the Questions for Short Debate not run for its allotted 90 minutes this afternoon—which I have to say seems a little unlikely, certainly in the first one—then the Committee will adjourn during pleasure until the end of the 90 minutes. The second Question for Short Debate will, therefore, not begin before 5 pm. If there is a Division in the House, the 10 minutes during which the Committee is adjourned for the Division will not count towards the 90-minute time limit for the debate.

Health: End-of-Life Care

3.31 pm

Lord Warner asked Her Majesty’s Government whether the proposals in Dignity in Dying’s Charter for Dignity at the End of Life will be taken into account as they take forward their end-of-life care strategy.

The noble Lord said: I am pleased that we have the opportunity today for this short debate on this very important issue. I hope we will find time for longer debates in the next Session.

We exercise choices as we go through life; so why should we not do the same as we leave this life? Personal choice at the end of life is my theme today. I am a member of the British Humanist Association. I have no other relevant interest to declare. I support the policies of Dignity in Dying and I am grateful for the factual material that it has provided but the views that I express are entirely my own.

I begin by congratulating the Government on their end-of-life strategy document. It is a thorough and comprehensive piece of work that does the Government great credit. I like the way in which it builds on the Mental Capacity Act 2005, which gives statutory force to the right to refuse treatment by giving people more positive choices at the end of life. It is very much of a piece with the Government’s 2005 manifesto commitment to double the number of people with cancer who could be treated at home, which is what we know most of the public want.

The strategy, rightly in my view, identifies lack of open discussion between health and social care staff and those approaching the end of life as one of the key barriers to the delivery of good and dignified end-of-life care. That is why I welcome the commitment in the strategy that patients should have the chance to discuss personal needs and preferences with professionals and to have their preferences included in an end-of-life care plan. I assure noble Lords that I have my list of

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preferences ready for when my time comes. I also know that they may not count for much in the UK unless the care culture changes, more options are open to me and my legal rights are strengthened. That brings me to the Charter for Dignity at the End of Life produced by Dignity in Dying in June this year, for which I had the pleasure of providing the foreword.

Some critics of that document have, in my view rather foolishly, branded it as “A Deadly Charter”. Perhaps I may summarise for the Committee what the document actually calls for: first, giving everyone the opportunity to create an end-of-life care plan; secondly, placing a duty on healthcare professionals to consider that plan; thirdly, the Government promoting awareness of advance decisions by patients; fourthly, parliamentary approval to giving terminally ill, mentally competent people the option of an assisted death; fifthly, more resources to be made available for palliative care; sixthly, consistent palliative care commissioning to end the postcode lottery in provision; seventhly, better support for carers, including more access to respite care and stronger legal protection against employment discrimination; eighthly, specialist training for health and social care professionals on end-of-life issues; and, ninthly, better access to support services for bereaved people.

That hardly seems to me a charter of death. I hope that the opponents of any form of assisted dying will not rubbish everything that Dignity in Dying says or does. The organisation campaigned—courageously, in my view—for advance decisions, and has also campaigned for more resources for palliative care. There is no philosophical or practical reason why a person or organisation cannot be committed to both better palliative care and assisted dying within strict safeguards. That is certainly my position. Both options are part of a range of choices that should be available to us in a civilised society. It is worth bearing in mind that in those countries and jurisdictions where assisted dying has been legalised, palliative care has flourished and received extra investment.

I note, too, that the Government have produced a further consultation document, which provides for PCTs to demonstrate that they are aware of the views of their population with regard to the delivery of care at the end of life and that local population needs have been assessed. I welcome the fact that the Government are working on some outcome measures for these quality markers and that these could include “place of death” and surveys of bereaved relatives. This more informed approach will mean that policy making on end-of-life issues will be made less on the basis of ignorance and prejudice and more on the basis of solid and reliable information.

That brings me to the final part of my remarks, which relate to how we respond better to people's real preferences on end-of-life issues. The available evidence shows that the legislature in this country is significantly out of step with public views on assisted dying. Surveys—and I include in this the very reputable British Social Attitudes Survey 2007—consistently show that 80 per cent of the population support a change in the law so that a terminally ill, mentally competent person can have the option of an

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assisted death. Indeed, an ICM poll last month showed that 29 per cent of people think that assisted death is already legal in this country.

Both here and in the other place, parliamentarians seem to be in a diametrically opposite position on this issue to their constituents and fellow citizens. The Government have so far remained neutral on this issue. I do not doubt that my noble friend the Minister has the same brief on neutrality that used to be served up to me when I was a Health Minister, but I should like her and her colleagues to reflect on the fact that the situation is changing. International opinion is moving to where British public opinion has been for some time. Assisted dying laws are in place in the Netherlands, Belgium, Switzerland and Oregon state. Washington state has now voted in favour of an assisted dying law modelled on Oregon’s law. Luxembourg has just approved a new law. In France, President Sarkozy has ordered a study of possible amendments to the law—and the Spanish Minister of Justice is to study a possible law change.

Noble Lords will be relieved to know that I do not think that today is the occasion on which to deploy the arguments for a UK law change on assisted dying. However, I ask my noble friend and her colleagues to reflect on what is going on abroad on this issue and to consider the strong possibility that, the Government having produced this excellent end-of-life strategy, people may begin to take the Government seriously about choices at the end of life. They may even, dare I say, believe that one choice should be legally assisted dying for terminally ill and mentally competent people. We cannot have it all ways; if we have an end-of-life care strategy and we give people a chance to offer their views, we cannot always expect them to maintain the status quo in this area.

Finally, I ask my noble friend to consider commissioning an up-to-date authoritative study of UK public and medical opinion on the issue of assisted dying using a respected independent body and comparing this information with similar assessments of opinion in the United States and the EU jurisdictions that have already moved in the direction of assisted dying legislation. That would be a major service to parliamentarians and is something on which, in due course, I would welcome the views of the Government.

3.39 pm

The Earl of Arran: I, too, am extremely grateful to the noble Lord, Lord Warner, for introducing this all-too-important debate. We all acknowledge that Parliament has a duty to listen to the people whom it represents, thus I broadly welcome the Government’s end-of-life care strategy and the efforts of all the main parties to promote greater patient choice at the end of life.

Dignity in Dying commissioned an opinion to accompany its Charter for Dignity at the End of Life. It found that an overwhelming majority of the public believed that terminally ill people should be allowed to exercise choice over the care that they receive. Two-thirds of respondents said that they would be more likely to have a dignified death if they could discuss and record their wishes around end-of-life care and treatment.

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I hope that, if fully implemented, the end-of-life care strategy and the role of end-of-life care plans will go some way to meeting the public’s legitimate expectations of end-of-life care.

However, in one crucial regard Parliament is failing in its role to represent the will of the people. In 2006, an opinion poll conducted by YouGov found that 76 per cent of people believed that the law should change to allow terminally ill patients to receive a prescription from a doctor to end their suffering, subject to a range of safeguards. Another opinion poll, conducted by YouGov this year, again found that 76 per cent of people believed that terminally ill patients should be allowed medical assistance to die.

If we readily accept that people should have choice, control and access to services at the end of life, why is Parliament so reluctant to discuss this specific issue? Those who oppose assisted dying for the terminally ill insist that a change in the law poses a threat to vulnerable people. It is thus imperative that Parliament balances enacting the will of the people with ensuring their protection. When the law is changed, as I believe it will be—I repeat that it is critical to enact stringent safeguards to protect the vulnerable from abuse—it will be our responsibility to make sure that such a Bill is fit for the purpose. By calmly debating the safeguards needed, Parliament will enact a law which not only promotes greater choice at the end of life but provides greater protection for the vulnerable.

I accept that this is a difficult issue for many, but we have a responsibility to debate and resolve it. The current law on assisted suicide is nearly 50 years old. Society’s views have moved on, and Parliament should seek to reflect them. This has occurred in other contentious areas such as homosexuality, the death penalty and human embryology. In this contentious matter, let not bitterness and rancour pervade our debate, but rather let reason and understanding exist on both sides, at all times listening to the voice of the people whom we serve.

3.43 pm

Lord Lester of Herne Hill: I declare an interest, having acted as amicus curiae in the Bland case and as counsel for the MND patient Annie Lindsell. I agree with the noble Lord, Lord Warner, and the noble Earl, Lord Arran, and I support the charter.

Reasonable legal certainty is especially important when a patient is suffering from a terminal illness and facing the prospect of severe suffering and indignity. Patients have the right to life; they also have the right to personal autonomy and to live and die with dignity. They and their doctors need to know what exceptions there are to the law of homicide which will enable a doctor, acting in accordance with the patient’s wishes and with the doctor’s judgment as to the appropriate medical treatment, to administer that treatment even though its probable effect will be to shorten the patient’s life.

There is a lack of certainty about the nature of the legal justification or excuse for what would otherwise be homicide, in relation to the medical treatment of the terminally ill. Where a doctor acts in good faith in accordance with what she considers to be responsible medical practice, with the aim of relieving pain or

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severe distress but with the foreseeable and probable consequence of shortening the patient’s life, the risk to the doctor is that the jury, as directed by the judge on currently declared principles, will impute the necessary specific intent to find them guilty of culpable homicide, and the judge will have to impose a mandatory sentence of life imprisonment. The absence of an adequate legal framework and the risk of prosecution under current law deter some doctors from treating their patients in accordance with those patients’ wishes.

The law should allow a doctor to have a defence to a prima facie case of murder based on foresight of consequences where the patient’s life is an intolerable burden to her, she is dying and the only humane treatment left is one that has death as its consequence. It should surely be a defence if the doctor satisfies the jury of three matters: first, the fact that she administered the treatment in good faith for the purpose of relieving her patient’s pain, suffering and severe distress; secondly, the fact that the treatment was given with the patient’s informed consent; and, thirdly, the fact that the treatment administered accorded with accepted medical practice. That approach avoids any artificial distortion of the well established legal concepts of causation and intention, and it provides much greater certainty than an approach based on the vague and confusing standard of primary and secondary intentions or double effect.

The time is overripe for Parliament to give terminally ill, mentally competent people the right to have an assisted death accompanied by stringent safeguards against abuse.

3.45 pm

Lord Hameed: I support everything in the charter except, alas, one of its recommended measures—namely:

“Parliament must give terminally ill, mentally competent people the right to have an assisted death”.

I asked some of my medical colleagues to recall any episode or clinical story in which a patient recovered miraculously from a hopeless clinical situation. Most of them were able to remember someone who had recovered in spite of being beyond any expectation of life. What would happen to these recoverable cases if this law were adopted? Scientific progress continues to enable us to challenge human suffering from pain, breathlessness and such like, and there is much hope for even greater progress in this area.

I am a Muslim and in Islam, along with Judaism, Christianity and in fact many other non-Abrahamic religions, a physician has to render help, regardless of the patient’s financial ability and hopelessness due to disease. The physician, or anyone else, has no right whatever to terminate human life, and there is a very clear instruction in Islam, as in other religions, against taking your own life. Therefore, I suggest that the highly controversial proposal to ask Parliament to give terminally ill, mentally competent people the right to an assisted death be removed from the charter and submitted to the House, and it will then have my support and the support of many others in the House.

As it stands, the charter gives the impression that it is designed to introduce legalised euthanasia via Parliament under the cover of a package of harmless proposals relating to end-of-life care. This sort of tactic does its promoters no favours. If Parliament is

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to be asked to consider legalising euthanasia—and it rejected such a proposal decisively only two years ago—the agenda must be made completely clear.

3.48 pm

The Lord Bishop of Exeter: I welcome this debate and I welcome much in the Dignity in Dying charter. I welcome the call for better resources for palliative care, the end of the postcode lottery in palliative care and improved support for carers. Better advice and counselling support for bereaved people is also greatly to be encouraged. The churches already contribute massively to this work. However, we cannot avoid the fact that these noble objectives are wrapped up in a package which, as its key objective, asserts the right of all to claim assistance in dying. To that end, we have already heard a great deal about choice and control. Choice and control are not bad things, of course, but they do not add up to a very rich anthropology. They point us to some important aspects of being human but they do not give us a rounded picture of how most people in total experience their lives.

Many of us, including most of us in your Lordships' House, are used to shaping our lives through the autonomous choices we make. But I ask noble Lords to reflect on the many people in the world and in this country whose experience of life is much more about being done unto, sometimes by those closest to them, and whose experience of professionals is not of jolly good folk, like you and me, but of remote, aloof and often faceless people who make decisions which may not immediately appear to reflect the client’s own interests. I ask noble Lords to consider whether a person whose life experience is not all about being in control and making free choices is likely to see the prospect of choosing the time of death as so great a boon as it may sound. For many—and I declare an interest as a parent of a Down’s syndrome child—the promise of more choice has so often turned out to mean pressure to choose that which suits others. People who have not led assertive lives, exercising their own choices, have often internalised the notion that others know best and end up valuing their own lives too cheaply. Are we to offer them the ultimate opportunity to give way to the will of those around them? I ask that in the context of requested legislation which, by definition, would involve the state in affirming the view of an individual life as intolerable and not worth living.

One of the prime functions of law is to protect the weak, so let us be very wary of a charter that imagines all human beings to be like us—confident, articulate and used to choosing the direction of our lives. For many others, choice is not always a promise—it can feel like a threat. Time and time again, history has shown that once a principle is breached, it becomes very hard to police the boundary.

The philosopher Alasdair MacIntyre describes human beings as dependent, rational animals. We are part of a greater creation; we have a unique capacity to reflect; but most of all, he says, the fundamental truth about being human is not that we are autonomous individuals but that we are dependent upon one another. Through good palliative care, our nature as dependent creatures can be given eloquent expression through the skill of

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the medical and nursing professions. The vision of our mutual dependency is surely better realised in a relationship dedicated to controlling pain and supporting life until death comes rather than the dry consumerist image of a medical profession part of whose job is to respond to a patient’s demand to die.

3.51 pm

Baroness Jay of Paddington: I thank my noble friend, as everyone else has, for securing this very timely debate. As I am sure the Government are aware, this is an issue of growing public as well as political concern. There are 22 noble Lords scheduled to speak, and this is the second parliamentary debate on this subject in as many weeks. A member of the judiciary recently called on Parliament to act to clarify the law on assisted suicide, and hardly a day passes when some aspect of end-of-life care and choices is not covered by the media. Personally, I very much welcome such open, lively discussion. Death, and how we die, have been taboo subjects in public policy for far too long, and the Government are to be warmly congratulated on the first official end-of-life strategy.

In this brief contribution, my purpose is to urge the Minister, as she takes forward the Government’s strategy, to broaden the terms of consultation specifically to include further work on the choice of assisted dying which is contained in the Dignity in Dying charter. The time has surely come when that choice for terminally ill and competent people must be responsibly considered.

I hope that the Minister will pay special attention to the suggestion of my noble friend Lord Warner that the Department of Health look closely at overseas experience. In my view, it is particularly important to examine the impact on palliative care in those jurisdictions where assisted dying is now legally permitted. The importance of extending good palliative care in this country is an ambition we all share, but the UK opponents of assisted dying often assert that professional good practice is threatened and palliative care services are undermined when the option of assisted dying is introduced.

My experience of hearing evidence to the Select Committee on the Bill of my noble friend Lord Joffe and visiting the American state of Oregon, where medically assisted suicide has been available for a decade, is that this is emphatically not the case. As the chief executive of the Oregon Hospice Association wrote recently in the Guardian:

“Palliative care in Oregon is ranked among the top 10 states ... Hospice care ... is provided by highly qualified, licensed, interdisciplinary teams of professionals ... The team approach was established by one of our great heroes, Dame Cicely Saunders”.

Official Oregon figures show that the number of patients enrolled in hospice care when they died has more than doubled from 22 per cent to 57 per cent since the Death with Dignity Act was passed.

I hope the Government will accept that it is increasingly recognised that palliative care, however excellent, is not a universal panacea. There are and will always be a minority of terminally-ill competent people who would prefer to end their own lives. The empirical evidence from overseas now shows that this is a small and stable group; numbers do not shoot upwards in

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those places where assisted dying is a legal option. This is another area where the Government could helpfully undertake some modelling of possible demand if that choice was made available in this country.

3.55 pm

Baroness Murphy: I welcome this first-rate charter for end-of-life care and wholly agree with the sentiments expressed by the noble Lord, Lord Warner. It certainly reflects what people want at the end of life.

I am pleased to say that the medical profession, my own, as a whole seems to be changing at last to give greater respect to patients’ autonomous wishes. I have been heartened this week by the online poll conducted by the Student British Medical Journal in its survey “Should Doctors be Allowed to Help People Die?”. Yesterday, the last time I looked, the result of the 750 votes cast in the survey was 55 per cent yes, 45 per cent no. This is a significant improvement on what it would have been 10 years ago. It is a very heartening shift.

I wish to briefly address the issues raised by the right reverend Prelate the Bishop of Exeter about the vulnerable, particularly the mentally vulnerable. I speak as a psychiatrist who has worked most of my career with older people with mental disorders. I know that many are depressed at the end of life, and that there is a very high likelihood that if they are treated for that depression they will recover. It is important that, as the studies in Oregon show, one can assess clinical depression on a wide range of spectrum, from those who are mentally competent, understandable and have a not-treatable depressive response to those who have a treatable serious illness. It is not sufficient to give a person a one-off interview; you have to listen. Just as you would not take one blood test to diagnose diabetes, you would make a further assessment over a period of time. So it is with patients at the end of life.

We know from Battin’s studies published last year that, on the whole, over the past 10 years there has been no significant change in the number of people requesting death in other countries. It is a very small and containable group of people who seek an assisted death.

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