8.56 pm

Baroness O'Cathain (Con): My Lords, the DPP guidelines published in 2010 were hailed as a victory by the assisted dying lobby. These guidelines made it

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clear that encouraging or assisting the suicide of another is a criminal offence. Since then that lobby has subjected the policy to all kinds of criticisms. While trying to look at the criticisms dispassionately, I fear that I have come to the conclusion that those in favour of assisted dying saw the policy as a stepping stone to a law licensing assisted suicide.

The guidelines spell out that every case has to be considered in the round and on its own merits. I fear that the euthanasia advocates want to go further than that and seek to fetter this discretion of prosecutors. It seems to me that ultimately it wants a fundamental shift in the law, a shift that would move us away from deterrence and protection. I am increasingly concerned that we may be drifting into a position of seeing suicide in terms of a happy release from suffering and regarding assisted suicide as invariably altruistic.

I just wish that all could see how this would cause uncertainly, fear and jeopardy to great numbers of vulnerable people. The Royal College of General Practitioners recently consulted on this and 77% of GPs opposed changing the law, saying that it would be,

“detrimental to the doctor-patient relationship”,

and could result in patients being coerced into a decision to die. I wish that we would stop talking about killing those diagnosed with terminal illnesses. Sometimes those illnesses are not terminal. We should talk instead about increasing the availability of palliative care and improving the treatment of depression, which would help us all to live our declining years and end of life with dignity, love and care.

8.58 pm

Lord Brown of Eaton-under-Heywood (CB): My Lords, I was a member of the court that considered Purdy and gave the last ever judgment in the House of Lords. Whether strictly we were entitled to direct the DPP to issue guidelines as to his prosecution policy may be doubted. However, it was the best we could do and I am very glad we did it. I very well remember Mrs Purdy’s evident delight at the comfort that she felt those guidelines would give her, perhaps even extending her life by giving her the assurance that, even if she left it too late to kill herself, in desperation her partner could come to her help.

As to the substance of the guidelines, as the noble Baroness, Lady Jay, has explained, it may be that a forthcoming judgment from the Supreme Court in two consolidated appeals will throw some further light on these, not least on the position of assisted suicide by doctors, nurses and other healthcare professionals. Obviously, legislation is better than guidelines but we must do the best we can with what we presently have.

My final point is that we should note, in my case with approval, that in certain respects these guidelines go further than the Bill proposed by the noble and learned Lord, Lord Falconer, as to what circumstances would be acceptable. That is unsurprising given that one of the truly tragic cases that we looked at in Purdy was that of Daniel James, a young man who suffered an appalling spinal injury in a rugby match and later was accompanied by his parents to Switzerland to end his life. Given that the boy had already tried more than once to commit suicide, his parents had repeatedly

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urged him not to and that his death caused them, far from any advantage—on the contrary—the deepest distress, surely it was right not to prosecute them. I hope that the House agrees with the view that that was the correct outcome of that case.

9 pm

Baroness Meacher (CB): My Lords, I applaud the noble Baroness, Lady Jay, for tabling this Question and I express my gratitude to the former Director of Public Prosecutions for doing all that he could, within the constraints of the existing law, to recognise the fundamental principle of autonomy for patients and the right to make the most important decision of their lives: how, when and where they wish to die. Do our opponents really feel comfortable about grieving relatives, immediately after the death of their loved ones, being intrusively investigated as potential murderers?

There is now overwhelming support for legislation to provide for professional help to die well at the end of life. I understand those who believe that the timing of our death is a matter for God. However, a recent YouGov poll showed the majority of people with a religious faith—62%—support the legalisation of assisted dying for terminally ill adults with mental capacity, with only 18% against. Of course, religious supporters of assisted dying can find endorsement of their position in the words of the Bible and in modern interpretations of the Bible.

Very important, too, are the views of disabled people. The overwhelming majority of disabled people—75%—support reform, as in the Falconer Bill. As the Disabled Activists for Dignity in Dying briefing note says:

“Disabled people are not afraid of a new law to give terminally ill people choice in how and when they die”.

Support from the population at large is also solid. Some 82% of the general public agree that a doctor should probably or definitely be allowed to end the life of a patient with a painful, incurable disease at the patient’s request. The population is in fact far more radical than the noble and learned Lord, Lord Falconer. Therefore, people with a religious faith, disabled people and the population at large are hoping for government support for this much needed action.

9.02 pm

Baroness Hayter of Kentish Town (Lab): My Lords, this is about giving people choice in what must be the hardest decision of their life. I respect those who would not want assistance to die if they were terminally ill and in pain, but I hope that they do not prevent others having that option.

Suicide is legal, but without professional assistance we risk uncertain or painful suicide attempts, such as the throwing down the stairs that we have already heard about. If I were in that position, I would want to die with the safety and security of family or medical professionals by my side and without their being at risk of prosecution. If I want that, I want others to have that right.

The DPP’s policy has helped by indicating that assistance motivated by compassion is “unlikely” to be prosecuted. However, there is still a risk at the time of the act and an interview under caution, as we have

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heard. The current law is not working. About 250 Britons have travelled to Switzerland to get help, hundreds are illicitly given overdoses without any safeguards in place and countless people are helped to die by family members behind closed doors. These should not be the only options for dying people. We need assisted dying to be legalised, albeit with robust safeguards, so that the terminally ill can take control of their own ending but with society ensuring that there are strict criteria to prevent abuse.

9.03 pm

Lord Macdonald of River Glaven (LD): My Lords, I, too, thank the noble Baroness for initiating this debate. It is, as she says, a difficult and sensitive subject. My years as DPP brought home to me, in concrete examples day after day, the power that the law has to protect vulnerable people, but also its great capacity to inspire awe and therefore to deter cruelty and abuse. In the case of assisted suicide, the law must do both.

By law, every prosecutor examining a case must ask not one, but two questions. First, is the evidence sufficient for prosecution? Secondly, if so, would a prosecution be in the public interest? That is why an 80 year-old will not be prosecuted for shoplifting or a careless driver for a collision in which her own child is killed. It is also why, during my time as DPP, no one helping a loved one travel to Switzerland to die was prosecuted, even if the evidence that they had committed the crime was perfectly made out. The DPP’s guidelines, I believe, give clarity to this exercise of discretion.

It would be foolish to assume that everyone counselling a suicide acts from pure motives, or that malice or venality is always absent, but I believe that the equation that we have developed—a broad legal prohibition on the one hand, to deter those acting out of malice, and a carefully explained prosecutorial discretion on the other, to protect those who act from genuine compassion —strikes the right balance. It shields those who need protection on both sides: the terminally ill from exploitation and those whose compassionate assistance may be sought from prosecution.

Of course, any police investigation is difficult and traumatic, but even if the law is changed, there will be no escape from investigation—nor should there be. After all, even if the law is changed, someone will have died at the deliberate hand of another. The law should of course acknowledge purity of motive and recognise that people face impossible choices, but it does that already. What it should not do is to turn so far one way that it no longer sees the risk of conduct that should properly remain criminal.

9.06 pm

Viscount Craigavon (CB): My Lords, I am pleased to support the balanced and forceful arguments made by the noble Baroness, Lady Jay, and other noble Lords in this debate. I believe that the path down which the Law Lords started in their last case in this Chamber was quite courageous, and although we have heard today of the shortcomings which still subsist in this process, nevertheless considerable progress has been made. This is so even though overwhelming public demand has not so far been satisfied. We in Parliament need to be courageous also.

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The noble Lord, Lord Blair, who is unable to be here today, graphically highlighted in the previous debate on this subject the cumbersome process that the police are required to follow in any such cases of assisted dying. Under present rules, they cannot show the sensitivity that they might understandably like to tailor to the circumstances that they find in particular cases. Lengthy and distressing police processes are likely to be followed by the uncertainty of possible prosecution processes, even though the guidelines in the end throw up no need to prosecute.

The figure of at least 80% of the population supporting assisted dying has been generally accepted. For me, it is a continuing matter of shame that our fellow countrymen and women still have to go to Switzerland to avail themselves of what should be possible in this country. I feel that we as politicians should apologise to those who might continue to suffer, for some time to come, until legislation with full safeguards can be passed.

Although acknowledging—as everyone does—the role that good but not infallible palliative care can provide, I hope that those who are presently on the wrong side of history may one day also be able to apologise for the suffering they continue to cause.

9.08 pm

Lord Dubs (Lab): My Lords, I am grateful to my noble friend Lady Jay for initiating this debate. When somebody is terminally ill, and probably in considerable pain, the last thing we want to do is to take away their peace of mind or the certainty of how they are going to face their remaining days. They are entitled to peace of mind, but I believe that the guidelines, helpful though they are, do not give a dying person that peace of mind and that certainty.

I am still haunted by a discussion that I had with a friend of mine shortly before he died of motor neurone disease, when he tapped out on the keyboard what he wanted. His main plea to me was to vote for a change in the law. We have heard today about slippery slopes, but I do not believe that is a good argument. All too often in this House we hear the expression “slippery slope” used as an argument against change. Surely, if we as a country have confidence in the integrity of our legal system, then if we were to change the law—as I hope we shall—we can do it in such a way that it does not represent a slippery slope but a considered change that Parliament has approved.

We have heard this evening that the Crown Prosecution Service considers every case individually. If I were to help somebody who was terminally ill and wanted such help, would I want the humiliation of having my case considered? Why should I be a case at all? Why should I not be entitled to do something, provided the safeguards are there, that is surely the right of the dying person to want from me?

Public opinion is totally on the side of change. In opinion polls the majority of people consistently say that they want a change in the law. Of course we must have safeguards, and I believe that the Bill of the noble and learned Lord, Lord Falconer, will provide those safeguards. I would not support any change in the law unless I was satisfied that we had adequate safeguards.

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But in voting for change, I will say this: I cannot vote to deny others something I want for myself, and that is why I shall support the Bill of the noble and learned Lord, Lord Falconer.

9.10 pm

Lord Beecham (Lab): My Lords, the issue of assisted suicide raises profound questions of an ethical, juridical and practical nature. Tonight’s debate is not on the general principle of assisted dying, which is of course already the subject of passionate debate—we have a had a number of such debates in your Lordships’ House—and one to which we will return when we discuss my noble and learned friend Lord Falconer’s Bill in due course. Rather, this debate is—or should be—on the narrow or legal issue of how the current criminal law is to be applied.

The DPP’s very carefully drawn guidelines reflect current practice. Reading the examples of recent decisions, I am struck by the balanced and sensitive nature of the approach that has been adopted. As the noble Lord, Lord Macdonald, pointed out, there is a two-stage process, setting out the factors that have to be considered—the evidential stage and the public interest stage—should the evidence support a charge that,

“the suspect aided, abetted, counselled or procured the suicide or the attempt”.

It is not quite clear to me what constitutes,

“an act capable of encouraging or assisting”,

to use the phrase in the guidelines. I infer that mere words would constitute an act, but I may be wrong in that inference. Sixteen tests are enumerated but it is not clear how the public interest is actually defined. Perhaps it is impossible to do so.

I was interested in the article written by John Cooper QC that is contained within the Library briefing, which illustrates the complexity of the situation. He says:

“Perhaps it can best be said of the DPP’s guidelines that they please no one and for many they were unwanted, not least of all by the DPP”.

Mr Cooper concludes that,

“it is my view that the guidelines can work and will enhance and maintain the existing law”.

This all underlines the desirability of a definitive conclusion on whether the present law should stand or be altered, as in my noble and learned friend’s Bill or perhaps in some other way. But we have to bear in mind, as others of your Lordships have pointed out, that a significant majority of the public, as measured by the polling, would support a change. I join with the noble Baroness, Lady Boothroyd, in expressing the hope that the House will be given an adequate opportunity to discuss this fundamental issue when my noble and learned friend’s Bill comes to be considered. In the mean time, it will be interesting to hear the Government’s response to the director’s guidelines.

9.13 pm

The Minister of State, Ministry of Justice (Lord Faulks) (Con): My Lords, I, too, am grateful to the noble Baroness, Lady Jay, for bringing this immensely important matter before your Lordships’ House.

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It is inevitable that any debate on prosecution policy—which is essentially the subject of the debate—in this sensitive area will lead to discussion of the law itself. This evening’s debate has been no exception. Whatever view you take of the law, the Director of Public Prosecutions’ policy for prosecutors in cases of encouraging or assisting suicide has brought clarity to the practical operation of the existing law and has generally been welcomed. But it is clear that views on the desirability of legislative change remain deeply divided, as is apparent from this evening’s debate.

Encouraging or assisting suicide remains a criminal offence. The DPP’s assisted suicide policy does not seek to change the law—and cannot do so as that is clearly a change that only Parliament can make. Nor does the policy provide prospective blanket immunity from prosecution—a point made by the noble Lord, Lord Alton—as that is also beyond the powers of the DPP. The policy simply provides guidance to prosecutors on how to apply the law in force. I remind the House of the Government’s view—one expressed by others standing at the Dispatch Box in the past few years—that any change to the law in this area is a matter for Parliament to determine as an issue of individual conscience. In amending the Suicide Act by Section 59 of the Coroners and Justice Act 2009, Parliament confirmed that it should remain an offence to intentionally encourage or assist suicide or an attempted suicide.

Of course, a number of noble Lords have mentioned the Assisted Dying Bill introduced by the noble and learned Lord, Lord Falconer of Thoroton, in May 2013. That seeks to legalise in England and Wales assisted suicide for terminally ill mentally competent adults who are reasonably expected to die within six months. The Government will take a collective view on the noble and learned Lord’s Bill in order to respond to the debate on its specific provisions at, but not before, Second Reading. As things stand, however, no date has been set for Second Reading of the Bill.

As for the CPS, noble Lords will know that its primary role is to prosecute cases investigated by the police in England and Wales and to advise the police in serious or complex cases. As was helpfully described by the noble Lord, Lord Macdonald of River Glaven, the Director of Public Prosecutions has a statutory duty to issue a Code for Crown Prosecutors. The code provides guidance to prosecutors on the general principles to be applied when making decisions about prosecutions and sets out a two-stage test to be applied in all cases. First, is there sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge? Secondly, is it in the public interest to proceed with a prosecution? It is only when there is sufficient evidence to provide a realistic prospect of success that a case proceeds to the public interest stage of the test. It has never been the rule in this country that suspected criminal offences must automatically be the subject of prosecution since—as the noble Lord, Lord Macdonald, explained—the public interest must always be considered.

In addition, the DPP publishes guidance to prosecutors on particular types of cases. These must be read in conjunction with the code. The Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide is one of those documents. The guidance is intended

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to assist prosecutors in making decisions on individual cases by setting out in one place the relevant legislation, case law, court sentencing practice, internal operating procedure and any specific evidential and public interest factors to be taken into account. The DPP’s assisted suicide policy was published in its present form in February 2010. As the House knows, that followed the judgment of the House of Lords in the case of Debbie Purdy and a public consultation on an interim policy to which there were 4,700 responses. The circumstances in which the House of Lords in its last case came to its decision were touched on briefly by the noble and learned Lord, Lord Brown.

At the time of its publication, and indeed since, the final policy received broad approval. It is generally acknowledged to be a sensible balancing of the various important considerations that need to be taken into account. It sets out factors that may be relevant when deciding whether a prosecution for assisted suicide is in the public interest, including questions of mental capacity—a matter raised by the noble Baroness—in addition to those already outlined in the code. However, deciding on the public interest is not simply a matter of totting up the factors for or against prosecution and seeing which side has the greater number. Each case is considered on its own particular facts and circumstances. The assisted suicide policy is very clear on that. The prosecutor should make an evaluation in terms of the weight to be apportioned to those factors before deciding whether a prosecution will be in the public interest.

Among the public interest factors tending against prosecution are that,

“the victim had reached a voluntary, clear, settled and informed decision to commit suicide”,

and that the suspect was “wholly motivated by compassion”. This has been interpreted by some as meaning that the CPS will not prosecute those who help terminally ill relatives to die. That is not the case. As the policy makes clear, it does not in any way decriminalise the offence of encouraging or assisting suicide or give an assurance that any person or class of persons will be immune from prosecution.

One of the public interest factors tending in favour of prosecution is that,

“the suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional”.

This has been said by some to cause considerable difficulties for healthcare professionals because it is not clear what constitutes assistance. During the course of this debate, we heard several contributions from doctors. I have to say that, listening to the debate, I did not understand the noble Baronesses, Lady Finlay or Lady Hollins, to be suggesting that the matter of dying was not discussed. Indeed, I thought it was regularly discussed; the question was how you approached it.

The issue has given rise to a case, AM v DPP. The Court of Appeal, by a majority decision, including a dissenting judgment from the Lord Chief Justice, indicated that there might need to be some clarification of the policy, and the weight that the policy gives to the fact that a helper was acting in his capacity as a healthcare professional and the victim was in his care. The appeal was heard in December, and we await the Supreme

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Court’s judgment. I understand that it is likely to arrive in the next two or three weeks, although I cannot be emphatic about that.

My Lords, in exercising her discretion to decide whether to prosecute someone for encouraging or assisting suicide, the DPP is not doing anything new. Under the Suicide Act, there has always been a requirement for the director’s consent to a prosecution. In exercising that discretion, it has always been necessary to weigh up the public interest factors for and against prosecution on the facts of individual cases. Indeed the exercise of prosecutorial discretion applies to all criminal offences and long pre-dates the 1961 Act. The assisted suicide policy as a public document has clarified that process by informing the wider public how such decisions are made.

Noble Lords might want to know something about the statistics. Records show that from 1 April 2009 to 13 February 2014, 91 cases have been referred to the CPS by the police recorded as assisted suicide or euthanasia. Of those 91 cases, 65 were not proceeded with by the CPS, 13 were withdrawn by the police and there are currently eight ongoing cases. One case of attempted assisted suicide was successfully prosecuted in October 2013. The facts of the matter would not trouble anyone, whichever side of the argument they were on. It involved someone with lower mental capacity. Four cases were referred onwards for prosecution for murder or serious assault.

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In exercising her discretion to decide whether to prosecute someone for encouraging or assisting suicide, the DPP is not doing anything new. Under the Suicide Act, there has always been a requirement for the director’s consent to a prosecution. In exercising that discretion, it has always been necessary to weigh up the public interest factors for and against prosecution on the facts of individual cases. The assisted suicide policy is a public document, which has provided some clarification for the process by informing the wider public how decisions are made.

The DPP’s guidance recognises that assisting suicide is a criminal offence. It clarifies how the discretion is exercised. Some would say that the deterrent effect of the present law combined with the compassionate exercise of prosecutorial discretion on a case by case basis, is a sensible balance in this very sensitive area. However, I freely acknowledge that strong views are expressed around the House and in the country about this matter. The fact that, looking back over Hansard, a number of contributors to tonight’s debate have expressed similar, although not identical, views before is in my view a strength. These matters do not disappear; they recur and will continue to do so. However, this debate, for which I thank all the contributors, has made a significant contribution to an issue which is difficult to resolve. Unfortunately, I cannot give any further guidance than what has been given by the Government before.

House adjourned at 9.24 pm.