House of Lords
Friday, 7 November 2014.
10 am
Prayers—read by the Lord Bishop of Norwich.
Assisted Dying Bill [HL]
Committee (1st Day)
10.06 am
Moved by Lord Falconer of Thoroton
That the House do now resolve itself into Committee.
Lord Newby (LD): My Lords, it may be for the convenience of the House if I highlight the estimated rising time of 5 pm that is advertised in this morning’s edition of today’s list. Noble Lords will be aware that it is a firm convention that the House normally rises by about 3pm on Fridays but in view of the level of interest in this Bill, as reflected in the volume of amendments tabled, we anticipate that the House may wish to sit a little beyond 3 pm on this occasion. As ever, progress on the Bill of the noble and learned Lord, Lord Falconer, and our rising time will ultimately be in the hands of the House.
Lord Trefgarne (Con): My Lords, before the House resolves itself into a Committee on the Bill, as I have no doubt it will in a moment, can the noble Lord who has just spoken say whether there are any further plans? There are 175 amendments on the Order Paper today and I doubt very much that they will be finished. Are there any plans for a further day in Committee and does the noble Lord realise what effect that will have on all the other Private Members’ Bills waiting in the list?
Lord Newby: My Lords, it would not be conducive to making progress and good use of the time available today if we started thinking about what happens after today. We will decide what we do after today after today.
Lord Deben (Con): On a further point, may I ask my noble friend two things? First, what discussions took place with the interested parties? I do not mean the parties on either side because this is, after all, a cross-party division. Secondly, what are the precedents for this and will he ensure that this does not become a precedent for all kinds of Bills in the future?
Lord Newby: My Lords, my noble friend the Chief Whip had numerous discussions earlier in the week with the principal protagonists on the Bill. On precedents, noble Lords will remember that we sat beyond 5 pm for the Second Reading of the Bill from the noble and learned Lord, Lord Falconer, as we did in the 2005 Parliament when the noble Lord, Lord Joffe, brought
forward a Bill on the same subject. The House sat beyond 5 pm for its Second Reading on that occasion. If your Lordships look at the pattern of Fridays, we have risen at 3 pm or thereabouts on the vast bulk of them. This Bill is clearly unusual in its significance and the amount of attention that it has generated, both inside and outside your Lordships’ House. I do not think that either my noble friend the Chief Whip or I detect any mood to move beyond 3 pm as a normal finishing time on Fridays.
Lord McAvoy (Lab): My Lords, to follow up on that issue, will the Minister indicate how much consideration was given to noble Lords who do not stay in London? If no consideration was given to the inconvenience, extra travel time and all the rest of it for anyone who does not stay in London, that would only confirm the trend towards this place becoming a metropolitan House rather than a House of the United Kingdom.
Lord Newby: My Lords, consideration was given to that, which is why we are not suggesting that the House sit beyond 5 pm, although it is conceivable, given the number of amendments, that one could go on beyond even then. The other thing that was in my mind, although I cannot speak for anyone else, is that for the country, looking in at our deliberations, the idea that it would be impossible to sit beyond 3 pm on a matter of this importance does not necessarily put your Lordships’ House in a good light.
Lord Jopling (Con): My Lords, to avoid confusion, and because the Minister tends to mumble, may I make it clear that the noble Lord, Lord Joffe, who presented the previous Bill was not me?
1: Clause 1, page 1, line 2, at beginning insert “Subject to the consent of the High Court (Family Division) pursuant to subsection (2),”
Lord Pannick (CB): My Lords, it is a privilege to open the Committee stage of this important Bill, the significance of which is demonstrated by the very large number of your Lordships who are present today. The Second Reading debate on the Bill was commended by many observers outside the House as illustrating the expert scrutiny that this House applies to legislative proposals, and I am confident that your Lordships will demonstrate again today the enormous value of this House.
In the first group I shall speak to Amendments 1, 4 and 24, which are in my name and those of the noble Baronesses, Lady Neuberger, Lady Mallalieu and Lady Shackleton of Belgravia. I shall speak briefly because we have much business to get through. I support the Bill, but I think that adequate safeguards are essential.
It would be improved, and some of those who are concerned about it may be reassured, if judicial safeguards were to be added.
These amendments would require that the person concerned must satisfy a judge of the Family Division of the High Court that they have made a voluntary, clear, settled and informed wish to end their life. Judges of the Family Division already decide the most profound questions of life and death. Can doctors separate two Siamese twins, knowing that one will die but that the operation is necessary to save the life of the other? Should the life support system be turned off for Tony Bland, a victim of the Hillsborough disaster who was in a persistent vegetative state? Judges already decide these questions of life and death—and, tragically, there are many of them—in a principled manner but also with great compassion, and, where necessary, they decide them speedily.
In the Nicklinson case, decided in our Supreme Court in June—I declare an interest because I represented the organisation Dignity in Dying—some of the judges suggested that a judicial safeguard for assisted dying would be appropriate and would provide greater protection for the vulnerable than they have under the present law. The noble and learned Lord, Lord Neuberger, the President of the Supreme Court, said at paragraph 108 of his judgment, that less protection for the vulnerable is provided by the current system of a lawyer from the DPP’s office inquiring after the event into the motives of the person who provided the assistance, and whether the individual concerned was voluntarily ending their life, than under a new law that would require a judge to be,
“satisfied in advance that someone has a voluntary, clear, settled and informed wish to die and for his or her suicide then to be organised in an open and professional way”.
The noble and learned Lord, Lord Wilson, at paragraph 205, and the noble and learned Baroness, Lady Hale, at paragraphs 314 to 316, spoke to similar effect. I respectfully agree with them, and I hope that your Lordships will too. Amendments 1, 4 and 24 would provide for these judicial safeguards. I beg to move.
10.15 am
Lord Carlile of Berriew (LD): My Lords, I have put my name to Amendment 2 along with the noble Lord, Lord Darzi of Denham, and the noble and right reverend Lord, Lord Harries of Pentregarth, and I wish to speak to Amendment 2 now. It is always a pleasure to follow the noble Lord, Lord Pannick, and I both agree profoundly and disagree profoundly with the amendments that he has just proposed. I need to explain very briefly why I agree, because he has given a very cogent argument for that aspect of the matter, and, at a little more length, why I disagree. I and the two other noble Lords who have signed Amendment 2 have also signed a number of others and I will explain why in a moment. They propose a very different judicial system from that which has just been advocated by the noble Lord, Lord Pannick.
I agree with the noble Lord that there should be a court-based system. Indeed, that is what the Supreme Court, in the case in which he appeared with distinction,
appears to have advised. The judgments in the Supreme Court are not uniform, of course, and a degree of interpretation is required to distil common themes from them. But in my view there are some. I often take train journeys from Euston to the north-west or mid-Wales and as I get on the train I show my ticket to the person standing at the platform entrance. Then the train manager comes round and asks for my ticket again, and, to my intense annoyance, never asks me for my senior railcard—he takes it for granted that I have one. I am sure other noble Lords here suffer the same indignity from time to time and wish it were otherwise. In a sense, that is a metaphor for my view of what is proposed by the noble Lord, Lord Pannick. What he has proposed is not a robust, analytical, court-based, evidence-founded system of whether it is right in law for a person to be given assistance to commit suicide. The way it has been drafted gives the court the opportunity to verify whether the procedures set out in the Bill have been carried out. There is no merits-based assessment in his recipe and I reject that approach.
That said, I agree entirely with the noble Lord that the Family Division of the High Court is extremely well equipped to deal with these cases. The adjudication on the switching off of life support machines, on Jehovah’s Witnesses refusing operations that involve blood transfusions and on other similar issues was very nobly pioneered by the Family Division of the High Court, particularly under the presidency of the noble and learned Baroness, Lady Butler-Sloss, who I am delighted to see in her place. The Family Division of the High Court contains on its bench real experts on issues that cover not only the nuts and bolts, complex as they are, of family life, but also the moral, ethical and even philosophical issues that may move decisions as to whether, for example, deaths should be allowed to take place in a particular way by the switching off of a life support machine. There is no doubt that the expertise lies there.
The clue to what I and the other two noble Lords who have kindly signed my amendment wish to do is actually to be found in another amendment, which we will debate in the next group. I think it is right to draw your Lordships’ attention to the very last amendment on the Marshalled List, Amendment 175, which provides that an applicant may,
“apply to the High Court of Justice for assistance with suicide if they consider that in the absence of such assistance their rights under Schedule 1 to the Human Rights Act 1998 would be breached”.
In other words, our court-based system is an evidence-based system which would require the High Court of Justice Family Division to decide whether there had been a breach of convention rights and, in particular, the convention right under Article 3 and, as it is always spoken of in this context, the article right which covers family life, privacy and so on.
The philosophical difference between me and the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Falconer, on this is about where the real decision-making should lie. In what I am sure I can be forgiven for calling the Falconer-Pannick approach—I hope I will be forgiven for the shorthand—we have a medical model for decision-making. In my approach, with the noble Lord, Lord Darzi, and the noble and
right reverend Lord, Lord Harries, we have a court-based approach to decision-making. I much prefer the experience of the courts and the court-based approach.
My father was a general practitioner. He was born in 1904. He practised in two countries in two very different capacities, spending the last decades of his life practising as a general practitioner in Lancashire. He was a very wise and reasonable man—my mother used to say I took after her. He always used to say to me that there are some wonderful people in the medical profession, but there are some terrible rogues as well, including famous ones, such as Dr Shipman. I spent 10 years, to my father’s great delight, as a lay member of the General Medical Council, and I saw a procession of outrageously badly behaved doctors going through the GMC conduct and health committees. They were very difficult to detect. It certainly did not amuse me as it amuses one or two senior Members of your Lordships’ House sitting opposite me who really should not find this a laughing matter.
I turn to the reason why we propose what we do, for there is a rational basis to this. I turn to exactly the same points as the noble Lord, Lord Pannick. I refer to the judgments in the Supreme Court of the noble and learned Lord, Lord Neuberger, the president of the court, and Lord Wilson. As the president of the court, the noble and learned Lord, Lord Neuberger, obviously has a very important role to play and is seen to represent a view, perhaps a corporate view of the court, although it does not flow from this case necessarily. Lord Wilson, as he pointed out during his judgment, has a very important role to play because he is by experience a very senior family court judge and has widespread experience of matters relevant to this issue.
It seems to me—other noble Lords may disagree with this—that two themes emerged from the Supreme Court judgment, if one can draw themes from 130 or so pages of several judgments, which is not easy. The first theme that emerged is that their Lordships thought that there is a possibility—they did not put it much higher than that—or perhaps something between a possibility and a probability, that there may be cases in which the Suicide Act, as amended, is incompatible with the European Convention on Human Rights and that therefore there might be a case, which has not arisen as yet, in which there might be what is called a declaration of incompatibility between existing United Kingdom statutory law and the European Convention on Human Rights. I am going to leave out of all today’s discussions that I raise any question about whether we should still have the European Convention on Human Rights because I think all reasonable people agree that if we did not have the European convention, we would have a convention with at least the same rights in it, so I park that point and hope that we do not have to return to it later.
Lord Wilson said that Parliament might consider setting up a situation in which the Family Division of the High Court would consider a large number of matters upon which evidence would be required to satisfy the court that there would indeed be a breach of convention rights justifying a declaration of incompatibility. My view is that declarations of incompatibility between European convention law and
UK statutory law are extremely undesirable because they stir up the sort of political argument which I adverted to briefly a moment ago about whether we should have the convention at all. Lord Wilson said in paragraph 205 of his judgment that,
“Parliament might adopt the procedure approved in the
F
and
Bland
cases and require that a High Court judge first be satisfied that a person’s wish to commit suicide was … voluntary, clear, settled and informed”.
He then set out in his list a to r—a long list—factors which the court might wish to investigate before deciding whether it could be so satisfied.
My Amendment 2, and all my other amendments on the judicial model, which we will be debating later, seek to provide exactly what Lord Wilson had in mind. I shall not go through the list from a to r because I do not want to take up undue time in your Lordships’ House as we have plenty to debate, although I would strongly recommend to your Lordships that nobody should speak on this issue without being able to put their hand on their heart and say that they have read Lord Wilson’s judgment, or at least paragraph 205. However, it includes, for example, the nature of the individual’s illness, physical incapacity or other physical condition; the aetiology of the condition; the attitude, express or implied, to his proposed suicide on the part of anyone likely to benefit, whether financially or otherwise, from his death; the motive of the person proposing to give assistance; and any financial recompense or other benefit likely to be received by such person in return for or in consequence of the proposed assistance. Those are just five of the factors in the a to r list which he set out.
What I propose to your Lordships—in my view this is something that should have been taken up by the noble and learned Lord, Lord Falconer, in redrafting his Bill, as I believe he should have done, to a court-based model—is intended to provide—I do not speak for perfection in drafting—a complete court-based model in which the merits could be considered by a court in a proper way, just as it is done in other cases now. I believe that a system of this sort—contrary to the views which I conscientiously hold, by the way—might allow some cases of assisted suicide in those cases where it was shown beyond reasonable doubt that there was a breach of the relevant articles of the European convention.
Lord Framlingham (Con): My Lords, I am not a lawyer, but I want to get something quite clear. Is all this happening while the family and the patient are wondering what is going to happen? Just how long is it likely to take?
Lord Carlile of Berriew: That is a very good question and I am very happy to answer it. Those who have studied these cases as they go through the Family Division know that it is capable of dealing with them very quickly indeed, according to the needs of the case. I believe that these cases would be given sufficient priority for them to be dealt with within a reasonable time—by which I mean days rather than months if necessary. There is really no difference between me
and the noble Lord, Lord Pannick, on this subject because we both require the cases to go before the courts.
I should like to complete this because I have taken nearly a quarter of an hour and I do not want to take more than that—[Interruption.] This House must not seek to stifle debate on serious issues.
10.30 am
Lord Carlile of Berriew: I have in mind the words of the Companion. I say to any noble Lord who is intending to make this less than the sort of the debate we would hope for in this House that we will, if necessary, have a full discussion on all the issues. Please bear with me for another minute and a half or so.
I hope that the noble and learned Lord, Lord Falconer, will take back and consider in due course what is proposed in Amendment 2 as I do not wish to force the House to decide on these issues today. What is proposed is the sort of court-based model which could make the United Kingdom an exemplar to the world of how we have a judicial system that is flexible enough to take in cases at the extremes but sustains the principles in which it has long believed.
Baroness Tonge (Ind LD): I thank the noble Lord for giving way. I would just like to ask a very simple question, because I am ignorant of these matters. How much would this cost for a dying patient who desperately wants to end his suffering surrounded by his family, and would he get legal aid?
Lord Carlile of Berriew: I am grateful to my noble friend. I believe that legal aid would be available if necessary under the exceptionality provisions. When I was asked this question yesterday, I reflected on the cost of the recent funeral of my own mother. I anticipate that these costs would potentially be about the same as for a funeral. We are talking about life and death here. My noble friend is a distinguished member of the medical profession. We are talking about taking a huge constitutional step which would allow a medical practitioner to participate in the killing of another human being, deliberately bringing about their death. This is very different from the doctrine of double effect, about which the noble Baroness, Lady Finlay, and other noble Lords have spoken on numerous occasions in your Lordships’ House. I do not regard the cost issue of life and death as being very significant in this context.
In conclusion, I hope that I have made the basic—
Lord Carlile of Berriew: When I have finished my sentence, I will give way. I hope that I have made the basic reasons clear. Now that I have finished my sentence, I will delay sitting down in order to respond to the noble Lord opposite.
Lord Warner: I am extremely grateful to the noble Lord. Does he accept that, under the amendment in the name of the noble Lord, Lord Pannick, the family court would have to have regard to the Human Rights Act in forming its judgment?
Lord Carlile of Berriew: I accept that the family court would have to have regard to the considerations which are set out in the amendment of the noble Lord, Lord Pannick. The difference between that amendment and ours is that ours sets out a very clear way in which the convention issues would have to be considered by the court rather than what amounts to verifying that a process has been followed. On the one hand, we have a process-driven amendment; on the other, we have a legal framework. I will happily give way to the noble Baroness.
Baroness Farrington of Ribbleton (Lab): My Lords, I cannot speak for anyone else on these Benches. I smiled while the noble Lord was speaking because, when he was referring to the fact that there are occasionally rogue doctors, it occurred to me that rogue lawyers have occasionally been known, too.
Lord Carlile of Berriew: First, I would say that, when I see the noble Baroness smile, I always assume that she is smiling at me rather than at anything I am saying. She is known in this House for her ineffable charm and courtesy.
Lord Carlile of Berriew: Secondly, the noble Baroness has reminded me of something which I intended to say, did not say and therefore will say now. Yes, there are rogues in the medical profession and there are most certainly rogues in the legal profession and in politics. What we are talking about under this Bill is a model that relies, unacceptably in my view, on the medical profession.
Baroness Williams of Trafford (Con): My Lords, before we continue, may I refer noble Lords to the Companion, which suggests that, in debates where there are no formal time limits, contributions are kept to 15 minutes?
Baroness Butler-Sloss (CB): My Lords, I should like to continue on this subject of the law. I was in the Bland case in the Court of Appeal. As President of the Family Division, at one stage I tried nearly all the permanent vegetative state cases. On the assumption that this Bill is passed, it seems to me critical and essential that the court should have an input. I would prefer the version of the noble Lord, Lord Carlile, but, speaking as a former judge, I would say that the version of the noble Lord, Lord Pannick, would actually require the judge to take account of all the relevant factors. I would be astonished if the High Court did not wish to confirm that it is satisfied, and that is a
high standard. The judge would have the power to require, for instance, a psychiatrist or other medical opinion, if the judge was not satisfied that the patient—we are talking about the rights of the patient—had the full capacity necessary to make this absolutely crucial decision.
As to how the case would be tried, it would likely go before a Family Division registrar. It would go before a High Court judge. In my day, I was able to try cases on the day that the problem came before the High Court and it was able to go to the Court of Appeal on the same day if it was sufficiently urgent. I would expect the President of the Family Division to treat all these cases with the utmost seriousness and would see it as crucial that they be heard as quickly as possible. It would be a matter for the Government of the day as to whether legal aid were given, but in a matter of this absolutely enormous importance as to whether somebody is entitled and has the capacity to make the decision that they wish to end their life, I would think it quite shocking if legal aid were not granted.
Baroness Neuberger (CB): My Lords, I rise to speak to the amendment of the noble Lord, Lord Pannick, to which I have put my name, and to add to that of the noble Lord, Lord Carlile. I agree with almost everything that has been said but, if responsibility is given to the Family Division in some way or other, there might be reason for a ticket system, as happens in serious sex or murder cases. That way, the judges within the Family Division who are going to hear these cases very quickly will have had training in how to look at them and, where necessary, examine the medical evidence in detail. A ticket system and specific training for members of the Family Division in this area would be an improvement on simply saying that it was available to everybody. I support the amendment of the noble Lord, Lord Pannick.
Baroness Wheatcroft (Con): My Lords, we have heard from three lawyers. I am not a lawyer—I have to confess that I have not read even paragraph 205 of Lord Wilson’s judgment—but I feel obliged to stand up and say that I think we are missing the point, as I see it, of the Bill of the noble and learned Lord, Lord Falconer.
This is not about medical decisions or judicial decisions; it is about compassion for people nearing the end of their lives. These people have decided that they have had enough. The thought of having to go through a legal process—even if, as we have heard, it has been curtailed as far as possible—and incurring legal bills is the last thing that they want to deal with, if they have complied with the law that the noble and learned Lord, Lord Falconer, is suggesting and have actually come to a reasoned decision that they have gone on long enough and the time has come for them to die. We ought not to prolong that procedure for any longer than we have to. I do not think that lawyers have the final view on all that is right.
Lord Deben: My Lords, my noble friend is assuming that every one of these cases is of someone who had voluntarily made all those decisions. We are here concerned
that there will be some cases—from my long experience as a Member of Parliament, rather more than some people think—in which that is not so, and somebody has to protect them against being thought to have made that decision when in fact they have not done so.
Baroness Wheatcroft: My Lords, there may indeed be one or two occasions on which that is the case. However, we are looking for at least two medical opinions here, both of which will regard the sanity of the individual. If that individual decides, in full knowledge of what is going on within the family, that that is the decision they want to take, then, on balance, I suspect that we should let them.
Baroness Mallalieu (Lab): My Lords, I have put my name to the amendment. I support the Pannick version of judicial intervention for the reasons already given with great care by the noble Lord, Lord Pannick. I also listened with care to almost all of the 129 speeches at Second Reading on 18 July in this House. There is a need to address two major reservations expressed by a number of noble Lords, which I accept have validity.
In essence, those reservations relate to two undeniable traits of human behaviour which we must accept exist and which no Bill of Parliament or amendment can extinguish. The first is selfishness. I see the noble Lord, Lord Tebbit, was trying to speak and I hope that he will shortly. He referred in his Second Reading speech to “the vultures”: relatives or friends who might have a financial or other interest in the death of a dying person and be tempted to put pressure on that person to end their life, to bring forward the date of the realisation of their expectations or, perhaps, to save care fees—albeit that, under the Bill, they would only have to wait a maximum of six months in any event.
Secondly, there is selflessness: those who feel guilty about the expense, trouble, time, worry and distress which they are causing those whom they love, and who may be tempted to shorten the process—not because they truly wish it—not for themselves, but for others. There are, of course, subdivisions: the relatives who cannot bear to see mother suffer, and so on. I accept that those are genuine concerns and they are the reasons why I primarily support the amendments of the noble Lord, Lord Pannick.
Although neither selfishness nor selflessness can be eliminated, through judicial oversight it can be guarded against, possibly even better than it is at present. The medical condition of the applicant can be assessed by a medical expert and by a wholly independent, experienced judge—although there are crooked lawyers and experts of every kind, our judiciary is still, thankfully, totally respected—who by training and expertise is qualified to judge pressure, coercion and genuine or false wishes, and to examine or evaluate evidence as to whether somebody has capacity, is acting voluntarily and has a clear understanding and a settled wish to end his or her own life. I want someone like that to have the ultimate say on the decision.
However, it is not a question of a decision being made by a doctor or by a judge; I want the decision to be that of the person who is facing death. We have got
to get back to that. Judges, especially in the Family Division, are dealing with judgments of that kind—about what people really want, whatever they say, and about pressure and coercion—day in and day out. I will of course listen carefully to the amendments in the next group that have been tabled by the noble Lord, Lord Carlile, and others on judicial oversight. However, on the basis of what we have heard already from the noble Lord, they appear to present a bureaucratic, legalistic obstacle race which is bound to be both lengthy and costly to the applicant. One of the objects of the Bill is, I hope, to leave behind the absurd anomaly we have at present whereby, if you are rich enough, you can go to Zurich, but if you are not you have no choice but to endure possibly totally unnecessary suffering at the end of your life.
10.45 am
That the law at present forces some people to endure such suffering at the end of their lives, because doctors either cannot or are afraid to help, was graphically illustrated by some of the speeches and personal experiences we heard at Second Reading. I shall never forget my noble friend Lord Judd reading out that moving letter from the widow of a man who had died in excruciating pain, with the doctor afraid to give him more painkiller for fear of killing him.
That is the cruelty that the Bill is trying to address. Its provisions have the support of the majority of the country. The Supreme Court has given Parliament this chance to grasp this issue and make the law. If we do not, then the courts will. We can improve the Bill with these amendments, and must do all we can to see that it reaches the statute book. I know that some noble Lords will have religious, ethical, moral or personal objections to assisted dying in any form. That is their right and their choice. However, others must be free, under the law, to choose another way.
The major reservations to the Bill, about protection for the vulnerable, will be met by the amendments of the noble Lord, Lord Pannick. I urge all noble Lords to support them.
Lord Tebbit (Con): My Lords, I worry a little, because I do not quite understand some of the proposed legislation. It is very much about process, which is very important. However, it should also surely be about deterrents against wrongdoing. I recollect that, when I had responsibility for taking legislation through Parliament, some of which one or two noble Lords opposite will remember quite well, one of the things I had to constantly ask myself was, “What are the means of deterring people from wrongdoing?”.
This is about going to the High Court and all sorts of other things, with doctors doing this and that. Supposing there is wrongdoing, how do we deter it? At the moment, if somebody wrongfully puts pressure on, or wrongfully assists, a suicide, they know that the law is there and that its hand may fall on their shoulder. I may be wrong but, as I see it, if we enacted these measures we would only be adding to the procedures, not to the deterrents against wrongdoing.
I speak with some feeling. I have had the prime responsibility of the care of my wife for the last 30 years. She has been in constant pain. It is getting worse. She requires more and more care. I fear for the day when she will say again to me what she said to me a little while ago: “You know, you would be better off without me”. There are many ways in which pressure can be brought to bear to make people who are perhaps approaching the end of their lives—although I hope that my wife is not—to “do the decent thing”. These amendments do not do anything to avoid that, and that is what worries me.
Lord Condon (CB): My Lords, I declare my registered interest in policing. I support the amendments put forward by the noble Lord, Lord Pannick, and other noble Lords, for the reasons that he outlined. At Second Reading I expressed a wish that the involvement of the High Court was perhaps the way forward on this issue. Like many of your Lordships, I had the privilege and honour of sitting through the previous debates on this issue, and like everyone in this House, past and present, we felt enormous compassion and wanted to find a way through this issue, which resonated with the feelings out there in the wider community.
For my own part, I have never been able to be satisfied that abuse, coercion and the prospect of malpractice of the sort outlined by the noble Lord, Lord Tebbit, were addressed in our previous attempts to deal with this tragic issue. However, we are now tantalisingly close to finding a way through this issue. It will assuage those of us who fear abuse, coercion, the right to die becoming the duty to die, and so on. Therefore I hope that we will find a way through this issue that involves judicial oversight and scrutiny.
At the moment I find myself favouring the approach of the noble Lord, Lord Pannick, in his amendments, as a medical-based approach but with judicial verification and oversight, because it is not quite so bureaucratic as the way forward suggested by the noble Lord, Lord Carlile. However, I hope we will find a way through this issue through judicial intervention.
Lord Tebbit: What does the noble Lord feel about the fact that a number of doctors who, quite wrongfully, signed chits, or whatever they are called, to allow sex-selective and frequently late abortion of patients whom they had never seen and whose names they did not know, have gone unpunished? Where is the deterrence to that?
Lord Condon: The noble Lord raises a very vital issue. We can and will address it in two ways: first, through the judicial oversight, and secondly, by amending Section 10, which at the moment has insufficient offences, but which can be amended to have a range of offences that will satisfy just the concern that the noble Lord has raised.
Lord Phillips of Sudbury (LD): My Lords, it is in the very best traditions of this House that there is standing room only at this debate on a Friday. It is entirely appropriate, is it not, given the profound issues that are involved? I have no doubt at all that the
country will be watching and listening to this debate in a way in which it perhaps has not done since the last of these debates, because this is one in a series. Like other noble Lords, I have taken part in all those debates; I come at the subject from having spent six years in the early part of my legal career as a part-time assistant to a part-time coroner and occasionally deputising for him. I was very vividly thrown up against the issues that are at the root of this legislation. I have to confess—I see the noble Lord, Lord Joffe, sitting yonder—that whereas I was wholly unconvinced when the noble Lord started his pilgrimage, the Bill contains the sort of protections that could make it one which we should support, given that it blocks off the thin-end-of-the-wedge fears that many of us had formerly.
I will make only one major point. We do not want to go from a situation where, as now, you have to be rich enough to go to Switzerland to get some sort of justice in these complicated matters. However, we could be in a comparable if lesser dilemma because of the cost which will attach to going to the High Court—with representation, as one would have to have—and getting an order. I have no doubt that the cost will be more than most of us expect and more than some of us fear, and legal aid is now available only to people at a very low level of income, and it will leave at least 80% of the public of this country unsustained if they wish to use the remedies that the Bill will provide. That is not right in a matter of death. One of the things we need to contemplate is whether we have some special arrangements for this life and death matter.
Secondly, the noble Lord who produced the Bill has done wonderful work, and those who tabled the amendments—the noble Lord, Lord Pannick, and my noble friend Lord Carlile—have also done great work. However, there is a huge number of problems at the back of either amendment; a great number of issues that have not been considered carefully, in the round, and reported on. I hope very much that we will not vote on these amendments now or indeed at all today, because we all need time to reflect on and contemplate them. However, I would like us to think about—and, if necessary, to form— an ad hoc group to report on whether one could not deal with the issue at the heart of these amendments just as well by having either a county court judge or a special panel of justices of the peace to determine the issues concerned. Some may think, “That’s not good enough”. As one who spent a lot of time in magistrates’ courts and county courts in years past, I do not hold that view. In some ways, given that the issues are—how shall I put it?—common-sense life experience issues that will have to be determined by whoever adjudicates on this, I am not so sure that a county court judge or a panel of magistrates might not be at least as good, competent and able to undertake the decisions involved.
Lord Harries of Pentregarth (CB): My Lords, my name is down in support of the amendment in the name of the noble Lord, Lord Carlile, with the noble Lord, Lord Darzi, and I very much support the reasons he set out so cogently.
I was very glad to see the amendment in the name of the noble Lord, Lord Pannick, because it points in the right direction. I cannot support it, because I
believe that doctors should not be involved at all in the final decision-making process. Under the noble Lord’s amendment, the courts would check that a good decision had been made, and they may ask for witnesses, as the noble and learned Baroness, Lady Butler-Sloss, said.
We need, for all the reasons set out at Second Reading, to take doctors out of the decision-making process altogether. I remind your Lordships of points made at Second Reading about the erosion of trust if a Bill such as this went through Parliament, and the minority of doctors who are willing to take part in the system—four out of five doctors are totally opposed to taking part in it, so only a minority of doctors would be willing to do it. That would lead to a lot of looking around for the right kind of doctors. I do not want to get into the business of knocking doctors—they have been in my family for some time; my wife and my son are doctors, and my grandson is on the way there—or weighing the relative merits or demerits of rogue doctors and rogue lawyers. However, we are not talking about individuals, but about the Supreme Court. The Committee on Standards in Public Life carried out a series of polls about how the public regard various professions, which shows that trust has been eroded in so many professions, but not in judges. Trust in judges remains at about 80%. That is a very significant factor; decisions made by the court on this issue, if we eventually went down this road, would be trusted by the general public.
I would just like to mention one point that has not been mentioned. I have a quotation from the noble and learned Lord, Lord Neuberger, in the judgment that the noble Lord, Lord Carlile, was discussing. He said:
“Quite apart from the notorious difficulty in assessing life expectancy even for the terminally ill, there seems to me to be significantly more justification in assisting people to die if they have the prospect of living for many years a life that they regarded as valueless, miserable and often painful, than if they have only a few months left to live”.
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The reason for mentioning that is that, if we are moved by compassion for people who feel that their lives are intolerable with only a few months to live, how much more are we moved by compassion for people who have years and years? It is no secret that the people behind the Bill see it as the first step. Suppose that it eventually became the settled wish of this country to have some kind of system whereby people who, on finding that their lives were utterly miserable and unbearable, wanted to end it. The only system that the country as a whole would trust would be one set out along the lines set out by the noble Lord, Lord Carlile. I do not support going down that road but, if it became eventually the settled wish of this country and people, moved by compassion, did not want to stop at those who were dying with a few months to live but those who might have years of totally intolerable life ahead of them, the only way in which decisions could be made that would be trusted would be if they were made by the courts.
The noble Baroness, Lady Wheatcroft, spoke of compassion, but we are all moved by compassion. I believe that everybody in this House on all sides of the
debate is moved by compassion—but there is not just compassion for people who have a few months of intolerable life to live. There is also the compassion for those who might be put under all kinds of intolerable pressure, whether it is meant or not, as was stated so movingly by the noble Lord, Lord Tebbit. In response to what he said, I believe that a court-based system would actually act as a deterrent. First, the number of cases that went to it would be relatively few and the tests would be very stringent. If people did not meet those tests and acted on their own, they would be liable to criminal prosecution. So I very much welcome and support the amendment proposed by the noble Lord, Lord Carlile, as I know the noble Lord, Lord Darzi, does as well, as he also has his name to it.
Lord Ribeiro (Con): My Lords, I should like to speak as we have heard many noble Lords speaking but we have not heard from the medical profession. Noble Lords will have heard that the majority of doctors are not supportive of being involved in the decision-making process. The reason is very clear. I, as a surgeon, on more than one occasion had to deal with children and adults—but children particularly—whose parents were Jehovah’s Witnesses. If an operation was needed that required transfusion there was a dilemma between my opinion that surgery and transfusion were necessary to save that child’s life and the parents’ decision that under no circumstances was a transfusion to be given.
What has made life easier for doctors is that we can now go for a judicial decision, made by the judges as to what should happen. That happens when, as was mentioned earlier, you have to divide a Siamese twin, to which the noble Lord, Lord Pannick, referred, or when you have to switch off the machine. These are important life and death decisions. Surgeons have always been referred to as people who play God and carry out life and death decisions, but the fact is that this is a situation in which they feel comforted that the decision is taken outwith their domain and taken by the judiciary. The same principles apply here, in this case.
I am slightly varied in terms of whether I support the noble Lord, Lord Pannick, or the noble Lord, Lord Carlile, but, in either case, doctors should be as far removed from decision-making as possible. If it is decided that assisted suicide should then happen, the mechanism and how it is done and whether it involves the medical profession is something to which we can then apply our minds. But the initial decision must be underpinned by the judiciary.
Baroness Finlay of Llandaff (CB): My Lords, as another doctor I follow the noble Lord, Lord Ribeiro, who has explained so clearly why doctors do not feel that they should be involved in this. Indeed, my feeling is that the noble Lord, Lord Pannick, has made a very important first step, but I worry that his amendment does not go far enough. For that reason, the amendment tabled by the noble Lord, Lord Carlile, about which we will hear more in further groupings, is the way forward.
I reassure all Members of this House that compassion is at the heart of those who do not support this Bill. My objection is on public safety to protect those who are vulnerable. I declare an interest, having looked after these patients for more than a quarter of a century. I have looked after thousands of people—I have had hundreds of conversations with people who wanted their lives to end. Then we have done things, and they have not persisted with those requests.
I address very briefly the issue of finance. Please do not forget that many people who are dying are already reliant on charitable funds of different sorts to support them. I do not believe that it is beyond the wit of our society to find a way of having pooled funding that can be drawn on to support the fees for a legal process where it is absolutely right to go through one, and society deems that it is. It is dangerous to have the illusion that money would get in the way.
I address a couple of points that have already been raised in the previous excellent and outstanding debates, when examples were given of poor pain control. As a clinician, I was horrified at the bad care. There is no excuse for not redoubling efforts to relieve symptoms or to withhold analgesia from someone who needs it; even if you know that you are taking a risk and you are clear with it, there is absolutely no excuse, and our law does not require doctors to withhold all efforts to relieve distress. But doctors have to look after patients, and we are often in a difficult situation.
The noble Baroness, Lady Mallalieu, laid out very clearly the problem of coercion and coercive pressures, and I completely agree with her. There are external pressures, and pressures now coming from healthcare. Sadly, it is true that not all doctors are good doctors. At a meeting this week, we heard from the CQC that 2% to 3% of general practices will probably have to go into special measures and that 20% to 30% are below substandard. Yet the Bill without these amendments leaves decision-making in the hands of people—we know not what. We will go on to address all the inadequacies in the Bill.
There are families where there is carer fatigue—they are worn down. I have had families refuse to take patients home because they are fed up with their relative. That is a really difficult conversation to have with anybody. Indeed, I have had relatives pressurise me to give something to end a life and get it all over with—yet the patient has not wanted their life to be ended. As I have already explained to your Lordships, I discovered later, after the birthday of one female patient, that it was her fixed-term life insurance policy running out that drove the request to push up the drugs. After her birthday, they did not get the extra money and they visited less. I am afraid that I was taken in before I knew that, and I have been taken in time and again—because, while most parents love their children, sadly, not all children love their parents. It is difficult to detect coercive pressures, but then there is also the selflessness that patients may feel when they know that they are imposing a burden on their family.
Let me give a cogent example. I was asked to see a man by a GP who said that the man was a clear case for euthanasia or assisted suicide but that he could not
give him a lethal injection. That was the only reason the GP was referring him. The consultant surgeon, oncologist and GP all thought that the man had a life expectancy of three months. His wife had just given birth to their third child. There was a small baby there. I went straight out and I was there until 11 o’clock that night. The distress was overwhelming. Weeks later, the distress was calming down. Much later, when I had conversations with that man, he said that the pain had been overwhelming and the prospect of becoming paraplegic and wheelchair-bound was overwhelming and terrifying but that also at the back of his mind he wondered how his lovely, beautiful postnatal wife could cope with their three children, particularly the new baby, and look after him as well. He felt that it might be best for everybody if he was not there. I spoke to him this morning. He said that I could relate his story. He can see the dangers of what is proposed because he lived way beyond three months. We will discuss prognosis and the difficulty of determining who is terminally ill later.
However, if the court were to receive evidence from experts, not the doctors described in the Bill, and assessment of capacity were done properly by experts, the court could make a balanced decision and that would not contaminate the way that clinicians behave. It would not put clinicians under a lot of pressures which are difficult to untangle and it would maintain their prime duty to relieve the distress of the patient in front of them, and to help the family and carers cope and redouble their efforts when they fail. It is for that reason that I think the Bill is wholly inadequate without such a control.
Lord Berkeley of Knighton (CB): On a point of information, given my noble friend’s enormous experience, I would be very grateful if she would say whether she has ever been in the position—or what she would do if she were in that position—where she has felt that she should give a patient a dose of analgesia that might end their life. How would she deal with that situation?
Baroness Finlay of Llandaff: I shall answer that directly and attempt to be as clear as I can. I have seen patients who are in overwhelming distress. I have sat there with a syringe full of diamorphine—heroin—and titrated it in milligram by milligram, minute by minute, until the patient’s pain level changes from unbearable—usually, 10 out of 10 or even 11 out of 10—to a level that they can cope with where they tell me the pain score is three or four out of 10. When I have done that, I have known that I may suppress their respiration but that is a risk that I am prepared to take and I have adjacent to me what I would need to maintain their respiration if it dips. I have seen patients who have been given an inadvertent overdose, where their respiratory rate has dropped to critical levels but we have found ways round that and restored their respiration without having to reinflict pain. I have been in one situation which was, I think, the only time that I could say honestly that I have used the principle of double effect. I had a patient with a horrible head and neck cancer. The whole of his neck was solid. The nurses asked me first thing in the morning to go to see him—
Baroness Blackstone (Lab): My Lords, I am extremely concerned about the time. I am certainly worried that we are drifting—
Baroness Blackstone: Please let me finish what I wish to say. This is a Committee Stage of a Bill and it is very important in Committee that we stick to the amendments on the Marshalled List and do not debate a whole lot of other issues when we are considering a particular grouping.
Baroness Finlay of Llandaff: My Lords, I am simply trying to answer the question as succinctly and honestly as I can and not to waste the Committee’s time. I hope that my intervention so far has not done that; it is still under 10 minutes.
I realised that the man I was talking about was unable to breathe and that there was no way we could restore his airway. He was terrified and standing in a panic. I therefore gave him what I thought was a tiny dose of midazolam to calm his anxiety from the breathlessness. Unfortunately, as he relaxed, he obstructed his airway and I was then faced with somebody with no airway but still conscious, so I injected all of the ampoule and another one that I had taken with me in case I dropped the first one, knowing that I may be bringing about the end of his life. As he became blue, purple and blotchy and collapsed, the nurse and I caught him and got him on the bed. After what seemed like an eternity, he started to breathe again. He lived for four and a half hours in a peaceful and comfortable state. As I administered the drug, I thought that my defence in court would be that of double effect. That is the only time that I have thought that I would need to use that defence.
I hope that explains to the noble Lord why we go up to the limit and we know the risks that we are taking. However, that is fundamentally different from deliberately foreshortening a life that would otherwise go on for days, weeks, months or possibly years because we cannot predict prognosis.
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Lord Campbell-Savours (Lab): My Lords, this issue is for me very personal. I have deep sympathy with those who are standing outside Parliament today, demonstrating on this issue, and with the millions of people who also feel strongly about it, many thousands of whom have written to Members of this House over recent weeks. I want to explain why this issue is very personal. I have now been ill for 31 years, and I have struggled on many occasions to survive different operations. Only last week I spent another week in hospital. Whereas five or 10 years ago I was opposed to assisted dying, I now realise that some people desperately want out. They want to leave the world. That has never crossed my mind but one day it might, and I want that right. To be frank, I do not want the courts to interfere in it. The courts will create congestion in the system which people want to avoid.
I also recognise that something is missing in the Bill to cover the issue of duress and coercion, which have been referred to by a number of noble Lords. We have to add something to the Bill to reassure people that that matter can be dealt with. I would go down the route referred to by the noble Lord on the Liberal Democrat Benches—forgive me, my memory is not too good at the moment—who referred to an alternative to court proceedings. We need a panel, perhaps comprising community-based guardians. I do not know whether they should be elected or appointed, or how they should be appointed if they are to be appointed, but they should be people who are capable of handling these sensitive situations. They need not necessarily receive a professional remuneration but they should be able to talk to people who have taken this decision. If, having talked to those involved, these people are uneasy, they should be able to instigate a further hearing of the issues, not necessarily in a court of law but in some forum. I say that because I am concerned that medical practitioners, whether the attending medical practitioner or the independent medical practitioner, may simply not have the time to sit down and ask the detailed questions that are necessary to secure the information to meet the criterion set out in the Bill.
When you are lying in a hospital bed—I have done it dozens of times over many years—you hear the conversations with doctors. They are going on around you all the time when they do their rounds in the morning or when they come back if there is a problem on the ward. I simply cannot imagine the circumstances in which doctors would be able to sit down and have that very meaningful, subtle conversation that can dig out the truth behind a particular application or declaration made by the person involved.
I therefore say to the House: please do not go down this judicial route; find another way of sensitively seeking to establish where the truth lies. If we do that, we will meet the objectives and concerns of all those outside who are basically worried that the Bill is going to be killed by the House of Lords because people have put up so many obstacles and amendments to wreck it. It would be a tragic day if that were to happen.
Lord Howard of Lympne (Con): My Lords, I declare an interest as the chairman of Hospice UK, formerly Help the Hospices, which is the umbrella organisation for hospices in the United Kingdom. Hospice UK does not have a collective view on the principle behind the Bill, so everything that I might say in this debate is the view that I express personally, not the view of the organisation—although I hope that it is a view informed by the knowledge that I have acquired of the remarkable extent to which palliative care, an area in which we in this country lead the world, can alleviate the suffering, which is the backdrop to all the issues that we are discussing during the course of this debate.
I want to limit my brief remarks to the issues that arise in the context of the amendment. Palliative care is increasingly—not yet, alas, universally—available, but we are making good progress towards that objective. However, one of the problems that arise is that not everyone who could benefit from palliative care is
aware that it is available. That has a direct bearing on the issues we are discussing and on these amendments. One of the things that it is vital to bring to the attention of someone who is contemplating the awful decision that the Bill makes possible is that they should be fully aware of the extent to which they could take advantage of palliative care to relieve their suffering.
In the context of these amendments, one of the factors that I would expect a court to take into account is the availability of palliative care for the person making the application, the extent to which that person knows about the availability of palliative care, and the extent to which that has been made available to the person concerned. I give way to the noble Lord.
Lord Blair of Boughton (CB): I merely wish to ask whether the noble Lord is aware that Clause 3(4) requires both doctors to be satisfied that the patient has been fully informed of palliative, hospice and other care available to that person. In other words, this is in the Bill.
Lord Howard of Lympne: I am so aware but I would prefer that investigation to be carried out by the court. That is the issue between us. It is another reason why one or other of these amendments—I prefer the amendment in the name of the noble Lord, Lord Carlile—should be passed if the Bill is to become law.
Baroness Hollins (CB): My Lords, as a doctor, I would also much prefer a judicial process. I had the good fortune yesterday to speak to Professor Peter Rubin, the chair of the General Medical Council. I asked him whether many doctors had yet been referred to the GMC because they had failed to provide adequate pain relief to someone in the last days of their life. He said he did not know the answer but kindly drew my attention to the GMC’s guidance, which I thought would be good information and useful for our discussion. It is entitled, Treatment and Care Towards the End of Life: Good Practice in Decision Making. He referred me in particular to paragraphs 24 to 27. I shall read just a short part of paragraph 27, which states:
“You must seek advice or a second opinion from a colleague with relevant experience … if … you and the healthcare team have limited experience of the condition … you are uncertain about how to manage a patient’s symptoms effectively”,
“you are in doubt about the range of options, or the benefits, burdens and risks of a particular option for the individual patient”.
I will not finish reading out the paragraph. Although we may lead the world in palliative care, it is still a developing but important specialty and area of expertise, and we should give it adequate opportunity to continue to develop without interfering and changing the role of the doctor.
Baroness Murphy (CB): My Lords, I will stick to the amendment. I told the noble Lord, Lord Pannick, a few days ago that I would not support it for all the reasons that the noble Baroness, Lady Wheatcroft, mentioned, and the reasons raised by the noble Lord, Lord Campbell-Savours. This is a decision by patients—let us come back to them—it is not a decision by doctors.
Any judicial intervention placed between the patient and the processes by which they could be helped in what they want is likely to be difficult. Remember also that patients every day make decisions to end their lives. They make a decision not to have that last chemotherapy offered to them. They have had perhaps a year of it and they do not want any more. That wish is respected, their capacity is rarely mentioned and they make that decision.
However, I have thought a great deal over the past few days and looked again at the Second Reading debate. The anxiety raised was sufficient to suggest that perhaps we need to put in a process that can be quick. Operating in the mental health world, I know that the courts can readily convene at 24 hours’ notice; I have often had to take a magistrate’s order and get a court decision quite quickly. It is possible for someone to have judicial oversight within a short time if the process is developed correctly. Looking at the range of options provided in this group of amendments, I would say that the amendments of the noble Lord, Lord Pannick, are worth supporting, and I will go with them despite my original anxieties. They will make the Bill workable and not destroy it, whereas the amendments of the noble Lord, Lord Carlile, would make it unworkable. For that reason, I urge all noble Lords who like the principles of the Bill to support the noble Lord, Lord Pannick, in his amendments.
Lord Cormack (Con): My Lords, I hope we will not be called upon to vote on either amendment but very much hope that the noble and learned Lord, Lord Falconer, will reflect most carefully on what has been said. He knows that I totally respect, indeed honour, his motives in bringing the Bill before the House. He knows also that I have considerable misgivings. However, this House decided, rightly, to give the Bill a Second Reading, and it is now our duty to try to improve it so that those of us with misgivings have them allayed so far as possible, and so that those who believe in the Bill, and are a little impatient in their belief, will accept that we are in no sense seeking to retard the Bill’s progress, but rather to improve it. I make that point in particular to the noble Baroness, Lady Blackstone, who intervened a few moments ago.
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We have been debating this issue for only one hour and 18 minutes. It is central to the Bill. One of my reasons for having grave misgivings was encapsulated in the speech made by my noble friend Lord Ribeiro. Doctors are extremely concerned about being put in the driving seat. Doubtless most of your Lordships will have received the letter from the Association for Palliative Medicine, which came to virtually all of us this week. My noble friend’s phone believes in a little musical accompaniment. Noble Lords must surely have been influenced by what was said by the eminent doctors in that letter.
In varying ways, the noble Lord, Lord Pannick, with admirable brevity, and my noble friend Lord Carlile of Berriew, with a little less brevity, advanced extremely powerful arguments to your Lordships’ House. I very much hope that when the noble and learned
Lord, Lord Falconer, responds to these amendments, he will indicate that he will not only take on board what has been said but have personal discussions with the two noble Lords who proposed these amendments and with others. It was proposed during the debate on my noble friend Lord Saatchi’s Bill a couple of weeks ago that the best way to move forward would be to have a sort of round table, where all those with concerns could come together. I hope that the noble and learned Lord, Lord Falconer, will be willing to do something similar. This is the most important human issue with which the House can ever grapple. If we are to put a measure on the statute books—I say this to my noble friend Lady Wheatcroft—we must not be impatient, but we must strive for perfection and underline the reputation for careful scrutiny that this House justifiably enjoys.
Lord Stirrup (CB): My Lords, I will speak very briefly. I intended to preserve my first intervention for an amendment to which I have attached my name in the second group, but a couple of things have been said in this excellent debate that we should reflect on and that need a little clarification. It has been said that the Bill is not about doctors or lawyers, but about patients and patients choosing to die. That is not the case. The Bill is about others being permitted to contribute to a patient’s death. This is not the dying Bill, but the Assisted Dying Bill. It is imperative that we focus our attention on the rules and safeguards that would be applied to those who will contribute to a particular patient’s death.
In his very moving speech, the noble Lord, Lord Campbell-Savours, said that people simply want out. I understand that entirely and I absolutely respect it. Some people will of course have religious objections to that. I do not. I get that, I understand it and I do not believe that anyone should stand in their way. However, this is not just about people wanting out, but about people wanting others to help them through the exit. That raises fundamental issues of ethos in a number of professions. As the noble Lord, Lord Ribeiro, has said, this is a significant issue for the medical profession. I am not a member of it, but I have family connections and have spoken to many doctors—some of them relatives—on this issue. There is huge concern about it. I will expand on those issues in a later amendment. However, we should not concern ourselves with who in this House feels compassion; we all do. I am sure that we are all very sympathetic to the motives behind the Bill. As I said at Second Reading, I have the profoundest respect for the people who have brought the Bill forward and for their motives. However, I also have the profoundest reservations that, in attempting to do something good, we may in the process do something that will be much more harmful in the long run.
Baroness Cumberlege (Con): My Lords, I totally agree with what the noble and gallant Lord has just said. I come from a medical family. I am not a doctor, but I was made a fellow of the Royal College of Physicians, which asked me whether I would chair a working party to look at medical professionalism. That comes very much into these amendments.
We spent a very long time thinking about this extremely difficult issue. Do people care about professionalism? Where is it? How is it defined? What is it all about? We had a very interesting scribe—the editor of the Lancet, Richard Horton—who devised an extremely good definition, which was very long. I said to my working party that I would not remember that great paragraph if somebody said to me, “Lady Cumberlege, what do you mean by ‘medical professionalism’?”. We put our heads together and thought very strongly. We decided that medical professionalism is signified by the values, behaviours and relationships that underpin the trust the public has in doctors.
I very much support my noble friend Lord Carlile’s amendment. I fear that if we do not adopt something like this, which he described as a complete court-based model, trust in the medical professional will be eroded. That is surely the last thing that any of us wants. The noble and right reverend Lord, Lord Harries of Pentregarth, made a very interesting speech and I very much support what he said. However, I take issue with one thing. He talked only about doctors; we have heard only about doctors. Reference is made in the Bill to clinicians and to nurses. The noble Lord, Lord MacKenzie, and I have tabled a number of amendments, which we will come to later, on the role of nurses in this. They are mentioned as clinicians. I met with the Royal College of Nursing yesterday—I am also a fellow of its college—and we had a long discussion on this. There are one or two wrinkles on prescribing, but the same issues of professionalism are shared by nurses.
My noble friend Lady Wheatcroft dismissed very quickly the idea that there was a lot of abuse. We have already been urged to think about the patients. On 14 May, I initiated a debate in your Lordships’ House on elder abuse, in which 12 noble Lords took part. I had to research that topic. It was very interesting. If you look at things such as the Care Quality Commission and recent reports into Mid Staffordshire and all the rest, we know that a certain amount of abuse is taking place, certainly in residential homes, nursing homes, hospitals and prisons, but also in people’s own homes. The Department of Health estimates that just under 500,000 elderly people are subject to abuse in the community. That is why we want a differently shaped Bill and why we want to take the National Health Service—healthcare—out of making the final decisions. As my noble friend Lord Tebbit said, it is very hard to discover where the abuse is taking place, especially in people’s homes. That is why it is essential that we accept the amendment tabled by my noble friend Lord Carlile.
Lord Alton of Liverpool (CB): My Lords, I support very strongly what the noble Baroness, Lady Cumberlege, has just said about the effect of the Bill on medics. I was struck by a recent conversation that I had with one of my sons, who is a fifth-year medic. He very much welcomes the stand that the BMA and the royal colleges have taken in saying that they would not wish to see a change in the law because of the position that it would place doctors in. He argues, as I would argue, that you do not need a doctor to kill you to die with
dignity. I was very struck by what the noble Lord, Lord Howard, said about the roles that the hospice movement and palliative care can play.
However, I see the point of these amendments and I understand what my noble friend Lord Pannick and the noble Lord, Lord Carlile, are trying to do in improving the Bill. It is right that we should, at a Committee stage of the House, take the amendments extremely seriously, as we are required to do. Therefore, I honestly believe that today we should not be pressurised by either time or the thought that we are going to be railroaded into taking votes at this stage. I hope that those who have been calling for greater reflection on the amendments will be listening, too.
My noble friend Lady Murphy said that this is a decision for patients. However, implicit in the amendments is the fact that it is not just a decision for patients. This will require an assessment process. It is not an “on demand” situation, and therefore there is the possibility that from time to time such proposals will be rejected as well by the courts.
My noble and gallant friend Lord Stirrup rightly made the point that there will be people who are unable to take these decisions for themselves. That returns to one of the cases raised during the opening remarks of my noble friend Lord Pannick. He mentioned the case of Tony Bland, who went into a persistent vegetative state as a result of the football game that took place at Hillsborough. On Monday, I went to Warrington. I was incredibly impressed by the extraordinary resources and time that have been put into the new inquest process and by the work being done by the Independent Police Complaints Commission in reinvestigating the events. I made my own deposition there.
I was thinking not about the Tony Bland case—although I am well aware of it and well aware of those of my then constituents who died at Hillsborough—but about the case of Andrew Devine, who was a constituent of mine and who also went into a persistent vegetative state. It was predicted at that time that he, too, would die. Of course, Tony Bland was never on a life support machine; he had food and fluid withdrawn—a decision made through the court process. I just reflect that Andrew is still alive and is loved and cherished by his family. Having been in a persistent vegetative state and been told that he would never be in a position to take solid foods again, within a couple of years he was able to do so. Therefore, we have to be careful about prognosis. We have to be very careful in assuming that we will always get these things right.
Every single case matters, and that is what I would say to the noble Baroness, Lady Wheatcroft, following the intervention made by the noble Lord, Lord Deben. Every single case matters; it is not just about the one or two people who will not be able to take decisions for themselves. Public safety goes to the very heart of the concerns raised by my noble friend Lady Finlay and in the amendment put before us by the noble Lord, Lord Carlile.
I was struck by what Lord Sumption said in the Supreme Court judgment. He said:
“It is right to add that there is a tendency for those who would like to see the existing law changed, to overstate its difficulties”,
“the current law and practice is less humane and flexible than it really is”.
So we are not at a settled point as far as this legislation is concerned.
I have been genuinely surprised that another place has not been given the opportunity to reflect on the extraordinary moral and ethical issues in this legislation, which are also contained in the questions raised by this amendment. One should recall that the Guardian said about the Bill:
“It would create a new moral landscape. It is also, potentially, open to abuse”.
That is what I think the amendment of the noble Lord, Lord Carlile, seeks to address. The newspaper went on to say:
“Reshaping the moral landscape is no alternative to cherishing life and the living”.
“The more assisted dying is discussed, the more its risks will become apparent”.
That was the point made in the eloquent remarks of the noble Lord, Lord Tebbit, who reminded us today of the pressure that can be placed on vulnerable people. We should recall the speech made at Second Reading by my noble friend Lady Campbell of Surbiton: it is not just the BMA and future medics; it is not just the hospice movement; it is also the disability rights organisation, whose representatives are standing outside this House today. I spoke to them this morning on my way in. They hope that, if we proceed with the Bill, we will do everything we possibly can to put in greater and stronger safeguards. Therefore, I hope that we will have a chance between now and Report to reflect on the different approaches contained in these two amendments and that the noble and learned Lord, Lord Falconer, will also go away and reflect on them following today’s debate.
11.45 am
Lord Reid of Cardowan (Lab): My Lords, I will probably make the shortest speech that I have made in this House, and your Lordships will no doubt be relieved about that. I am not a medic or a lawyer, nor have I put in the hours that many noble Lords have obviously put in on the details of this legislation. However, we should ask of this group of amendments: “What is the essence of the subject that we are addressing?”. Surely it is the essential question of whether a decision of this nature should be based on the free will of the patient and the expertise of the medical profession or whether we ought to go further than that, whether through legislation, via the amendments of the noble Lords, Lord Carlile and Lord Pannick, or whether through the suggestions of my noble friend Lord Campbell-Savours.
I have a view based on a very banal and simple old principle. Perhaps I may paraphrase one old philosopher who said, “Yes, men and women do have free will but they don’t exercise that free will in circumstances of their own choosing”. Surely what we are essentially asking is whether there should be an examination of the circumstances in which men and women operate their free will and make a decision. I believe that, on
such a profound question, there should be, and I do not believe that the medical profession is adequately equipped to do that in all aspects of the circumstances.
Therefore, I say to those who are proposing and advocating this Bill: please do not believe that those of us who think that circumstances affect a decision that people make of their own free will are somehow opposing the principle behind the Bill. It is a safeguard that recognises an eternal reality.
Lord Deben: My Lords, I speak from a position in which I must declare an interest, although it is a surprising interest and your Lordships will wonder why I am declaring it. I am chairman of the Association of Professional Financial Advisers. I declare that because the organisation has at its heart a determination to make sure that, if you advise someone on finance, you should be on their side and there should be no question over which side you are on. It is quite difficult to fight that battle because people feel that they can do both: they feel that they can be on both sides perfectly reasonably. Of course, people outside do not feel that. They want to be absolutely sure that the person advising them has only one interest, which is them and their concerns. If that is true in finance, it ought to be true in matters of life and death.
For me, at the heart of this—and, with apologies to the noble Lord, Lord Winston, it is why I wanted to follow the noble Lord, Lord Reid—is ensuring that at no point, in the mind of the patient or in the minds of the patient’s friends and relations, should doctors be equivocal. That is just as important when a patient himself is making the decision to end his life quite decently and honourably as it is when there is pressure. If the patient is making that decision, his family and friends want to feel that it is a decision in which the doctor has not played a part, for the doctor ought to be, right to the last moment, concerned only with the nature of the illness, the palliative care that can be carried through and the way in which new techniques might be applied.
I hope that the noble Baroness who intervened earlier will accept that there are many of us who do not approach this from a prejudiced or religious point of view. As somebody who fought very hard for same-sex marriage, I can hardly be accused of always taking the view of the church to which I belong. I take this view after 40 years as a Member of Parliament or candidate. I have seen so many people in circumstances in which they begin to doubt the advice of their doctors. Although I have no connection at all with the medical profession, I care about it so much that I do not want it to be treated with less care than the Association of Professional Financial Advisers. It should be on one side and not on the other. That is why we must have an external decision-making principle.
I am not qualified to intervene in the discussion between lawyers about what would be best. I intervene partly because I do not think that lawyers should have it all their own way in any circumstances. I agree with the noble Lord, Lord Alton, and my noble friend Lord Cormack. We have to say to lawyers that this is a
situation in which getting an answer that satisfies everybody is something that we lay people would like to see. Frankly, what lawyers have to do for us, as the noble Lord who spoke previously said, is to provide us with an answer in which we feel that the decision is made outwith the medical profession so that the medical profession can do what it is there for and can never be questioned.
I finish with a comment to my noble friend Lady Wheatcroft and the noble Baroness, Lady Blackstone. It is not possible to debate this whole issue or any of the amendments unless you recognise that there is a serious issue of pressure on individuals. I am afraid that after 40 years in Parliament, seeing people at the level that you do if you are a decent Member of Parliament, you discover man’s inhumanity to man is very much further advanced than the comfortable views of many people who do not get to that level. We have to protect people and this is an essential protection.
Lord Winston: My Lords, I was delighted to give way to the noble Lord, Lord Deben, because I agree with so much of what he has just said. I want to echo something that the noble Lord, Lord Alton, said. This is an extraordinarily important Bill, which goes to the heart of our society, and it is desperately important that the Government Front Bench and Members of this Committee allow full and adequate debate on it. If this House is to survive, flourish and be respected, it is very important that it debates these issues adequately and fully and takes as much time as is necessary. If we have to come back on another day to complete Committee, we should do so. It is essential that we understand that, no matter how inconvenient it might be to come back on another Friday.
I always find myself agreeing with the noble Lord, Lord Cormack, but I feel that there is a massive difference between this Bill and the Medical Innovation Bill, which is completely unnecessary. That is why it troubles me that we should be comparing the two Bills.
Very briefly—I shall not detain the House greatly—I want to say why I disagree with my noble friend Lord Campbell-Savours. I apologise to him for disagreeing. It is essential that we have something like the amendment in the name of the noble Lord, Lord Pannick, to protect our society. The reason for that is absolutely clear. It was raised to some extent by the noble Baroness, Lady Cumberlege, in her short speech. The issue, of course, is that in our hospitals we have increasing numbers of elderly people who come into hospital, a foreign environment, and find themselves distressed and not understanding what is happening, and are seen almost as demented; certainly, they will be people who are completely out of touch with what is happening to them and they will not understand. Therefore, it is essential that we have some kind of legal process that ensures that the Bill, if it is to succeed, is properly policed. That is essential. It cannot be left to members of the medical and nursing profession to make their minds up. For that reason, I absolutely support the amendment introduced by the noble Lord, Lord Pannick.
Lord Hunt of Kings Heath (Lab): My Lords, it is not for the Opposition Front Bench to state an official view as to what action should be taken in relation to
these sets of amendments. It is up to our own individual consciences to make our own minds up. However, it is an opportunity for me to say to the Government that it is important that we have sufficient time to debate this important Bill. I hope the government Chief Whip will take to heart the comments that have been expressed—by noble Lords who have different views but who certainly think that we should have further time to discuss this.
Although the noble Baronesses, Lady Wheatcroft and Lady Hollins, and my noble friend Lord Campbell-Savours expressed doubts about bringing the courts into this process, essentially these two sets of amendments, although they differ about the role of doctors, bring the courts into the process, and can be said to respond to the debate at Second Reading about the need for safeguards. Given that, I want to put two points to the Minister, which I hope he will be able to respond to.
The first is about the capacity of courts to deal with applications in a timely manner. The noble and learned Baroness, Lady Butler-Sloss, spoke from great experience and she was clear that the courts would be able to respond very rapidly. I think she said that they would be able to deal with the process in a matter of 24 hours. Of course, we do not know how many cases are likely to be brought. I hope the Minister will be able to say a little about how the Government would respond in relation to capacity in the courts if it were needed.
The second point I want to put to the Minister is about the financial support available to persons who would go to court under the process envisaged in either set of amendments. It surely must be open to everyone to be able to go to court without fear of the financial consequences. We know that legal aid has been heavily reduced in previous years. I ask the Minister to reassure us that if either set of amendments appeared in the Bill, and it was eventually enacted, that public funds would be available to allow people to go to the courts.
It is important that the Minister clarifies these points as clearly they have an important bearing on the attitude that noble Lords may take to these amendments.
The Minister of State, Ministry of Justice (Lord Faulks) (Con): My Lords, I congratulate the noble and learned Lord, Lord Falconer, on steering his Bill to a stage that no previous Bill on this difficult and controversial issue has reached. I know he will have listened very carefully to all contributions from your Lordships and that he will respond carefully to this amendment and to the others that will be debated here today. The number of amendments tabled is testament to the careful scrutiny of legislation that is characteristic of this House. The debate on this Bill at Second Reading was much admired outside the House, as well as within it, of course. The respect that was shown by those with very different views was remarkable for its lack of rancour. That has been echoed today and I am sure it will continue to be the case throughout the debate, whenever it concludes.
It may be helpful, in order to save time later—and perhaps your Lordships’ patience for listening to me—if I make some more general remarks while addressing
this group of amendments. As I said at Second Reading, the Government believe that any change to the law in this sensitive area is an issue of individual conscience and a matter for Parliament to decide rather than one for government policy. It follows that the Government will take a neutral position in today’s debate and that these Benches will have a free vote should the House divide.
Inevitably, the extent to which I may usefully contribute to the debate is limited from a position of neutrality. It is for the noble and learned Lord, Lord Falconer, to respond to the amendments moved, and to respond as appropriate on whether the clause should stand part of the Bill. My role, as I see it, is to assist the Committee in any way that I can without compromising the Government’s position, and to draw the attention of the Committee to any discrepancy that I might identify at this stage between the intended purpose and actual effect of any amendment.
Noon
I hope that these introductory remarks will assist the Committee. I do not propose to rehearse the Government’s position each time I speak to an amendment or group of amendments, so your Lordships may be pleased to learn that my subsequent contributions may, necessarily, be short.
That said, I turn to the amendments proposed by the noble Lords, Lord Pannick and Lord Carlile of Berriew, which, essentially, have the same purpose: namely to make the provision of assistance to a terminally ill person who wishes to end his or her own life subject to the consent of the Family Division of the High Court, although there are significant differences in the approaches which they suggest. It should be recorded that by no means all your Lordships feel that the courts should be involved in the process.
Your Lordships may, however, feel that there is something to be said for the approach advocated by the noble Lords. A number of the judgments of the Justices of the Supreme Court in Nicklinson thought so. The Family Division of the High Court is accustomed to dealing with such sensitive life-and-death decisions and would be well placed to take on the role that these amendments envisage. I cannot, of course, predict what demand there might be from the Family Court in the event that the Bill became law. Its record and experience of dealing with these difficult decisions, and dealing with them at speed, is a matter about which I think the House would be reassured, but I feel that I can say no more than that the courts have shown themselves equal to not identical but similar challenges in the past.
On the question that I was asked by the noble Lord, Lord Hunt, regarding financial provision, he will understand that it would be inappropriate for me to comment from the Dispatch Box about a scenario that does not currently exist. He will be aware that the LASPO Act retained an exceptional cases provision which deals with questions of the Human Rights Act and the convention requirements. I am sure that that matter will be considered by all noble Lords. That is as far as I can go on the question of legal support, but I think that the House and the Government will be very
much aware of the concern that finance should not be a matter that stands in the way of any provision which your Lordships should approve.
As the Supreme Court has recognised, there is a diversity of opinion about the degree of risk involved in relaxing the law in this area but not about the existence of the risk. It is unlikely that the risk of vulnerable people feeling pressure to end their lives can ever be wholly eliminated, but requiring a judge of the High Court to be satisfied that a terminally person’s wish to die is voluntary, clear, settled and informed may perhaps help to reduce the risk to an acceptable level.
I am sure that the noble and learned Lord, Lord Falconer, will have his own view on that. In keeping with the Government’s position, I offer no view but simply leave it to your Lordships’ House.
Lord Falconer of Thoroton (Lab): My Lords, I express my gratitude to everybody who has contributed to this short debate. It has been an excellent debate. I completely agree with what the noble Lord, Lord Winston, said: there should be a proper and full debate, because the sorts of decisions that this House has got to make are extremely grave.
I think that the issues in this short debate can be divided into effectively two: should we have any court-driven process to give greater protection; and if we should, what should that court-driven process be? The noble Baroness, Lady Wheatcroft, put most clearly the view that there should not be any court-driven process because it might deprive some people of the opportunity to use the Bill. The fear of going to court, the expense of going to court and how they feel at the time might well be a barrier. I am very conscious of that argument—from time to time, it has been high in the mind of many people—but my own view, having heard the debate at Second Reading, having heard the debate here and having spoken widely to people who might be involved in the decision, is that what would give much greater confidence regarding the Bill would be some sort of judicial process that raised the minimum barrier to people using the Bill but provided protection.
In the course of this debate, people have sought to say, “Well, it’s got to be the judges and not the doctors”. I think that it has got to be both, because you cannot even get to the judge unless two doctors have indicated that the person is terminally ill and, as far as they are concerned, the person has a firm and settled view to do it. However, I do not think that one can leave it to doctors alone, in particular to form two views: first, on whether it is the voluntary, clear, settled and informed wish that somebody wishes to end their own life; and, secondly, whether they have the capacity. I have been worried about whether the courts could deal with this quickly enough, but I have looked quite deeply into that. I am very influenced by points of the sort that the noble Lord, Lord Ribeiro, made. I think he will agree that the blood transfusion cases to which he referred are inevitably incredibly urgent, and the court could deal with them. The noble Lord, Lord Patel, referred me, not in the debate but separately, to the emergency caesarean section cases. Again, they are urgent. The noble and learned Baroness, Lady Butler-Sloss,
who has experience in this matter, spoke very persuasively of the speed with which the courts can deal with such cases, and the conjoined twins case was done very quickly.
I am worried about the costs issues. The noble Lord, Lord Faulks, gave some reassurance by referring to the exceptional funding. I cannot imagine a more grave decision than one such as this, and I hope that well meaning people in the Government would make sure that it applied to it.
In principle, therefore, I think that judicial process, although it may deter some people, will ultimately give greater protection. Which of the two options should one choose? Under the Lord Pannick option, if I may call it that, one could get the prescription,
“only if the High Court … by order, confirms that it is satisfied that the person … has a voluntary, clear, settled and informed wish to end his or her own life”.
That means that the High Court will have to decide whether the person has voluntarily decided to do this, which means that there is no coercion. In addition, the court has to be satisfied that the person has the capacity to make the decision. So it will be a primary decision for the courts.
In addition to those requirements, the amendment in the name of the noble Lord, Lord Carlile, says that the court can allow this to happen only if it is satisfied that the person is suffering what is the equivalent of “torture”—that would satisfy Article 3—and that not to allow it would be a breach of their Article 8 rights. I respectfully submit that those are very high hurdles and are utterly inappropriate to a Bill that basically says, “Your free will should determine it”, but I completely adopt what the noble Lord, Lord Reid, said about free will, properly examined, as being right.
This is a very difficult issue and the main one that we have got to decide today. I have heard what the noble Lords, Lord Phillips and Lord Campbell-Savours, said. They asked whether we could find an alternative, perhaps the magistrates or a committee of well meaning people in the community. Honestly, those ideas sound great, but they just will not work. I think that you need the highest-quality judges to decide these issues, and I do not think that the proposals being made there are really sensible.
People have said, “Let us not have votes today”. I think that we should resolve this issue today. We have had a very full debate. It is a matter for the noble Lord, Lord Pannick, whether he wishes to divide the House, but I am strongly of the view that we have debated this long enough. We have debated it very fully today, and very fully at Second Reading. My position is that I accept the arguments made, that there needs to be some degree of additional oversight. I believe that the proposal made by the noble Lord, Lord Pannick, is the right one, and I think that the time has come for this House to make up its mind on this very important issue.
Lord Pannick: My Lords, it has been a valuable and informed debate on the most profound moral issues. Like the noble and learned Lord, Lord Falconer of Thoroton, I of course respect what the noble Baroness,
Lady Wheatcroft, says—that people who wish to end their life should not be impeded by a legal procedure. However, I think that the judicial safeguards, as so many of your Lordships have said today, are essential to protecting vulnerable people, which was one of the main concerns expressed at Second Reading. A judicial process will also bring home to the individual seeking assistance to end their life the gravity of the decision they are taking. A judicial process will also assist the doctor, as the noble Lord, Lord Ribeiro, pointed out. The noble Lord, Lord Tebbit, in his moving speech—
Lord Mawhinney: I am grateful to the noble Lord. I am one of those who was against the Bill, but I am being persuaded that there is a court role that might go a considerable way to being helpful to the outcome of this legislation. There were a number of suggestions that, rather than going to a vote in Committee, it would be helpful if the noble and learned Lord, Lord Falconer, with the noble Lords, Lord Pannick, Lord Carlile of Berriew, and others, sat down to see whether it would be possible to produce an amendment on Report which did not require all of us to be legal experts and have read paragraph 205, but which showed a degree of continuity and cohesion among those who have led the House to this position. Would the noble Lord be willing to put off a vote until Report so that such conversations could prior take place?
Lord Pannick: I am grateful to the noble Lord, but my position is exactly the same as that of the noble and learned Lord, Lord Falconer. The amendment is not legalistic. It says that the judge of the Family Division of the High Court should ask himself or herself whether the person concerned has made,
“a voluntary, clear, settled and informed”,
decision. They seem the right criteria. With respect to the noble Lord, Lord Carlile, I have not heard any convincing argument as to why the criteria should be more onerous—that the person concerned should be able to proceed along this route only if a further criterion is satisfied. Indeed, the addition of further criteria seems contrary to the valuable purposes of the Bill: to give effect to the autonomy of the individual.
Lord Carlile of Berriew: Does the noble Lord not think on reflection that Report stage on a Bill of this kind is an extremely important stage for your Lordships’ House? Does he not think that it would be far better for your Lordships to discuss and reflect so that when we come to Report we are able to make a considered decision in which even those of us who feel strongly about these issues will understand the essential need to be prepared to compromise, through a proper discussion reflective on the debate of the past two hours? In that context, I am certainly not going to vote on any of these amendments either way. I invite the noble Lord to reflect for one moment on what has just been said. I think that others may well agree.
Lord Pannick: Of course I reflect on what the noble Lord says, not least because I have great admiration and respect for him. However, he will know, as will as any other Member of this House, that we often vote
on issues of principle in Committee. If there were an issue that could be resolved by further analysis and debate then I would see the force of the point.
Lord Harries of Pentregarth: There are some issues that need to be further clarified. The noble Lord, Lord Carlile, has a whole range of amendments going into more detail about what his proposal would actually mean in practice. The House has not had a chance to hear those amendments, which I think will go some way to addressing the point that the noble Lord made against the point that the hurdle was too high. I very much support those who urge that the noble Lord should get together with the noble Lord, Lord Carlile, and the noble and learned Lord, Lord Falconer, to see whether there is some more common ground.
12.15 pm
Lord Mackay of Clashfern (Con): I had intended to make a short observation but the intervention came from the opposite Front Bench, so I did not find it possible to speak. I rather go with the form of the amendment proposed by the noble Lord, Lord Pannick, subject to this. It is essential in the Bill that there should be a terminal illness. That is a very important issue which requires determination before the Bill operates. The amendment tabled by the noble Lord, Lord Pannick, as far as it goes, does not actually require—if I have understood it right, and I am subject to correction like everybody else—the judge to be satisfied that the patient is suffering from a terminal illness. I think that that is a part of the definition that requires to be taken into account.
For my part, I was rather expecting that the detail of the amendment would be settled before Report. In the mean time, what we are really considering is whether, as the noble and learned Lord, Lord Falconer, said, there should be judicial intervention at all. On that point, I think that a very large proportion of the noble Lords here today are rather in favour of it. However, the precise detail of it is quite important. Therefore, I find it hard to believe that it is right that we should settle on the particular form of the amendment today.
Baroness Butler-Sloss: I very strongly support the noble and learned Lord, Lord Mackay of Clashfern. I actually think that the amendment tabled by the noble Lord, Lord Pannick, has a great deal to commend it, and I would have said that to him. However, the point made by the noble and learned Lord is terribly important. Who is going to be the deciding factor on the terminal illness? I believe that this is an enormously important issue for Report—and I am at the moment assuming that the Government will give us time to have Report. I refer to what was said by the noble Lord on the Front Bench. This has got to a point of such importance that I really do not think that it should be addressed at this stage.
Lord Cormack: What can possibly be lost by having further conversation and discussion? If the amendment is put to the vote and is carried, other amendments cannot then be discussed because a number of them will fall by the wayside. That is not going to assist our
progress in having a full-ranging discussion. I would beg the noble Lord, Lord Pannick, not to press his amendment today so that discussions can take place. I make this suggestion, as I did in my speech, in a wholly constructive manner. I would beg of the noble Lord to heed that, because pre-empting other amendments is not the best way of taking this forward.
Lord Pannick: I am grateful to all noble Lords who have put to me pleas, begging—or however it is put—and I do take them very seriously indeed. However, it seems to me that after two hours we have had a very considerable debate on an issue of principle relating to the Bill. There is widespread agreement that there should be a judicial protection included in the Bill. As I understand it, only two real concerns have been expressed. The noble Lord, Lord Carlile, has suggested that the protections in my amendment are not sufficiently robust. With great respect, I do not accept that. The other objection raised is that it should not be judges of the Family Division who hear this. I think that this is so grave an issue that it is right and appropriate that the judicial protection is at that level. As the noble and learned Baroness, Lady Butler-Sloss, will confirm from her experience, there is nothing formal about the Family Division in appropriate cases. Judges hear the disputes around the bedside of the patient when necessary.
The noble Lord, Lord Tebbit, in his moving speech, was concerned about wrongdoing. I say that if the judge is satisfied on hearing evidence that the decision is,
“voluntary, clear, settled and informed”,
by a person who has capacity, then the noble Lord’s concerns about wrongdoing will be met. It is time that we came to decision on this matter of principle, encouraged as I am by what the noble and learned Lord, Lord Falconer of Thoroton, says. I willingly give way.
Baroness Finlay of Llandaff (CB): I am grateful to the noble Lord, Lord Pannick, for giving way. We have had a wide-ranging discussion. I felt that we were at the point of getting people to come round a table to find a solution. Like others, I am concerned about this process, but I respectfully state that I do not believe that we have heard the full debate. Other amendments in the next group in the name of the noble Lord, Lord Carlile, will expand on what he has proposed, and they have not had a fair hearing. I fear that to vote now may force the House to amend the amendments of the noble Lord, Lord Pannick, at Report. If that is what he wants, I am concerned about that. The House’s debate to date has been balanced and careful. I do not understand what is to be gained by having a vote now, rather than going through the issues, because we agreed that a lot in the Bill needs to be debated and sorted out. I state clearly that I am not aware of any wrecking amendments; the debate has been extremely informed.
Lord Pannick: I am not suggesting for a moment that anyone has proposed wrecking amendments, but I certainly do not accept that the noble Lord, Lord Carlile, has not had a fair hearing. He made a speech of 15 minutes or so—most appropriately—in which he
set out his case, and the House has heard the arguments for and against. I do not think that there is anything unfair or unbalanced about putting to the opinion of the House an issue of principle so that we can make progress. I wish to test the opinion of the House.
The Deputy Chairman of Committees decided on a show of voices that Amendment 1 was agreed.
3: Clause 1, page 1, line 2, leave out “request and lawfully” and insert “apply to the Family Division of the High Court to”
Lord Carlile of Berriew: My Lords, we come to a group of amendments, starting with Amendment 3, which stand in my name and those of the noble and right reverend Lord, Lord Harries, and the noble Lord, Lord Darzi, and, I am pleased to say, in one case, the noble and gallant Lord, Lord Stirrup. I am grateful to him for putting his name to that amendment.
I am gratified that we have had a serious and detailed debate on court intervention. I applaud the noble and learned Lord, Lord Falconer—
Baroness Jolly (LD): My Lords, please could those leaving the Chamber do so quietly, as we have moved on to the second group.
Lord Carlile of Berriew: My Lords, I was about to say that I applaud the way in which the noble and learned Lord, Lord Falconer, accepted something that was not in his Bill and which, in my view, should have been: court intervention. That is an important principle. I agree with the noble Lord, Lord Pannick, whose amendment has just been carried, that it would not be right to say that we have not had a proper debate on the previous group of amendments. I make no complaint about that. However, I make clear that if there is a Report stage of the Bill, there will be further detailed debate on the issues we have discussed and those in this group, to which I will turn in a moment.
I just wanted to pick up on three remarks made in the excellent previous debate. One was made by the very distinguished lawyer, whom I admire greatly, the noble Baroness, Lady Mallalieu—which I suppose is an inevitable preface to disagreeing with her—when she referred to a legalistic obstacle course. The noble Lord, Lord Campbell-Savours, referred to congestion in the system, and the noble Baroness, Lady Murphy, who I see has left her place, said that my proposals were unworkable. I reject all those concerns. Indeed, I and those who have put our names to the amendments have sought to provide a very straightforward road map. It may at the moment look a bit like a menu, but this is a House of Parliament and your Lordships are Members of a debating Chamber. Like any other noble Lord, I hope, I accept that parts of what looks
like a menu may be accepted and others rejected in due course. I respectfully submit that the amendments are worthy of consideration.
Briefly, I refer your Lordships to the rationale of each amendment, other than Amendment 3, which speaks for itself. Amendment 64 requires the court to be satisfied beyond reasonable doubt of certain things. Why “beyond reasonable doubt”, given that these are civil, not criminal proceedings? I have spent—I wrote on a piece of paper last week that I had spent 42 years at the Bar, but I had to consider afresh and added another two years as I was writing the piece I was preparing—44 years at the Bar and, throughout that period, I have dealt mostly with criminal cases in which there has been an assertion that death has been caused unlawfully. It always has to be proved beyond reasonable doubt so that the court is sure, as judges say to juries in murder cases. It is a straightforward proposition that, if Parliament is to allow one human being deliberately—not through double effect, of which the noble Baroness, Lady Finlay, spoke so eloquently earlier—to take the life of another human being, the standard should be “beyond reasonable doubt”.
Secondly, Amendment 64 requires the court to be sure that there would be breaches of Articles 3 and 8 of the convention. I mean by that that the court should be sure that the person concerned would be suffering from inhumane and degrading treatment by not being allowed to have their life taken with the assistance of another, and that there would be, to use shorthand for time’s sake, a breach of their right to privacy and family life.
Further, in Amendment 64, I suggest to your Lordships that it is important that the rights of others should be considered if they are affected by the applicant’s potential suicide. By that, I refer to wives and husbands, children and grandchildren, carers and other people who feel on strong grounds that the applicant is taking the decision—albeit with capacity—on an entirely mistaken basis that does not amount to breaches of Articles 3 and 8 of the European Convention on Human Rights. It seems to me common sense that they should be heard.
Finally, I suggest that the court may, in its discretion—please note that those words mean exactly what they say—allow other persons in addition to the applicant to be heard. In that context, we are aware, because the noble Lord, Lord Pannick, told us about it, that in the Nicklinson case the noble Lord appeared on behalf of an interested party—no doubt to enormous value, as one can see from the judgments in the case. It seems to me right that the court should retain the discretion, which might be useful in very early cases, to permit such interventions.
I turn to Amendment 67, which sets out part of the road map by which the Family Division would decide these cases. In personal injury cases and indeed in some others, the court is free to appoint an independent medical expert to assist the court. What that expert can do, if he or she is a good expert, is to look at the medical evidence produced by the parties, draw its threads together, discuss the medical evidence with other experts—it can be done at high speed—and present an independent medical view to the court. It is
of course not the independent expert who decides; it is the judge and the court that decide. But I believe, and I have seen this happen in personal injury cases on one or two occasions, that such independent experts add considerable value, particularly if they put their report into writing. That does not mean necessarily that there has to be a dissertation. What I mean by writing is that there has to be a written record of the doctor’s view, which is always available to others.
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Lord Davies of Stamford (Lab): I am grateful to the noble Lord for giving way. How long does he think that the whole of this process would take? What is the minimum amount of time that realistically would be involved if an independent report were required in writing? Does he not recognise that we are going to be dealing here largely with people who are suffering extreme pain or other discomfort and who would really wish to reduce the time to an absolute minimum when they have to continue to suffer that kind of condition?
Lord Carlile of Berriew: I do not know whether the noble Lord was here during the last debate—I apologise if he was—but I thought that that question was answered clearly. These things can be done very quickly indeed. Some of the answers could possibly be given in less time than it took the noble Lord to ask the question that he just asked.
Also in Amendment 67, a simple system is provided which involves the intervention of another independent person about how the act of assisted suicide would take place. That seems to be a straightforward safeguard.
Lord Richard (Lab): If the noble Lord will allow me, why does he make the provision of an independent medical examiner mandatory and not discretionary? In the word that he uses, the court “shall”; it is not that the court “may”.
Lord Carlile of Berriew: I am grateful to the noble Lord, who has great experience in law, for asking that question. It is one that I considered carefully. It seems to me that in cases where one human being is having their life ended deliberately by another, the court should have the safeguard in all cases of an independent expert, albeit that that expert may in the end be able to deal with the matter briefly.
Amendments 67 and 68 also deal with the way in which the assisted suicide, if it takes place, is to take place. It seems a wise, safe course that the independent person who oversees any act of assisted suicide should submit a report to the chief coroner. I think that it is the view of most lawyers, at least, that the chief coroner—currently, his honour Judge Peter Thornton—is doing an absolutely superb job and has shown how the coronial system can be made to work much better than it ever did in the past, so that seems to be a reasonable provision.
I turn finally to Amendment 172, because I referred to Amendment 175 briefly in the earlier debate. Amendment 172 provides for a form of declaration which in my respectful view should go with every one
of these decisions, if they are to be made, and which will stand as a record of what occurred not only for the court but as an explanation to the individual’s family and descendants as to why he or she decided to act as they did.
Those are the very brief reasons why these amendments, in my respectful submission to your Lordships, have merit. Despite the passing of the earlier amendment in the name of the noble Lord, Lord Pannick, these are issues that remain for consideration. I repeat that I do not propose any votes in this House on any of these issues today. These are serious matters which require debate and then reflection. I reserve the position as to what would happen on Report.
Baroness Finlay of Llandaff: My Lords, I stated earlier that I saw merit in the amendments tabled by the noble Lord, Lord Carlile, because they took doctors out of the gatekeeping role. I would like to expand on that briefly now.
The advantage of an independent medical expert is that you will know that you have somebody who has been properly trained, whose assessments are audited and, where there is monitoring in the process, that they have to be updated in that area and discipline—and that they carry credentials, as well as being able to negotiate the court process. As part of that assessment, it seems essential that others affected by the death are also considered in the process—in particular, children. I have spoken before in this House about the problems for children who are bereaved. I do not think that the House should underestimate the emotional problems for a child whose parent has committed suicide or had an assisted suicide, or the difficulties that they may go on to feel: that their love was inadequate to support the person whom they loved—their parent—through the last days, weeks or months of their life, and how damaging that can be for the rest of their lives.
I also strongly support the concept of having a court-appointed person who could take the drugs out to the person who has gone through the process and for whom assisted suicide is being agreed. The way that the Bill of the noble and learned Lord, Lord Falconer, is written at the moment is completely impractical because in reality not all patients die rapidly on ingesting their drugs. Some die within minutes but the median time is actually 25 minutes, if we base it on the Oregon experience. However, some take 41 hours to die. That is going to tie people up for a very long time.
We are talking not about therapeutic drugs but about a massive overdose of a drug at a fixed point. Later we will come on to debate lethal drugs and the difference between those and medication. There can also be monitoring of whom the drugs go to when they go out, and the return of drugs to a central point if they have not been used—as well as having someone who is trained to deal with the complications that occur, which has not been addressed and which, I respectfully point out to the House, almost no doctors are equipped to cope with at the moment. Yes, they may learn, but that would be at the expense of patients.
The other reason why I see the merit of having a completely independent process of assessment is, as I
said before, that it does not contaminate the care that is being given to the person by the clinicians. It allows conversations to go on without the patient feeling that they have locked themselves in—that in a way they can pursue a parallel track. They can be assessed by the court but they can still have their own practitioner working to improve their quality of life, not believing that, now they are applying to fix a date for their death, some of the interventions feel pointless and futile.
Lord Jopling: My Lords, the noble Baroness has just said something that has totally appalled me: that in these circumstances—in Oregon, particularly, I believe—it can take 41 hours for the injections to take effect. I am horrified to hear that. Would she be kind enough to try to give us rather more of an explanation from her background and experience about how this happens? It has come as a shock to me.
Baroness Finlay of Llandaff: I will certainly try to explain. The data come from the Oregon Health Authority’s own reports, which are written annually, based on the returns by the doctors. We know only the information that is given by the doctors; we do not know what goes on otherwise. If a doctor does not report it, it is not known. We also know from the Oregon health reports that three patients actually woke up again and did not go on to die.
The point is that you are giving a massive dose of barbiturates that is at least 20 times what you might use therapeutically to render someone unconscious but leave them alive; it is a huge dose. When someone is frail and very near death, they may well die rapidly from ingesting a small amount of an additional drug, but I would also point out that in its data the Oregon Health Authority says that the shortest time was one minute, and that is before any drug would be absorbed. I found that interesting because, in my own clinical experience, there are patients who, when the family says to them: “It’s okay, you can let go”, die within minutes of that statement being made. In other words, when they are given permission to die, they let go of the drive to stay alive. I wonder whether the figures in Oregon showing a very short time demonstrate that the person has signalled that now they are letting go, and that is it. I am worried by the prolonged figures, however, and I would point out that the median means that half the cases take longer than 25 minutes. That still seems to me to be quite a long time, but we will discuss complications later in the debate, not in relation to these amendments.
There is merit in not using the clinical team that is looking after the patient, whoever they are, but using an independent assessment by people who are properly trained in assessing capacity and who have the ability to ask questions about the family that the doctor who was looking after the patient may, for whatever reason, feel uncomfortable or inadequate about asking. They may not be adequately trained, because very few doctors are properly trained in assessing capacity. I also emphasise to the House the merit of having an independent person give the drugs.
My final point is that it is important to look at those jurisdictions that have changed the law regarding what happens if you do not have the kind of control that the amendments of the noble Lord, Lord Carlile, have been trying to put in. We know from Belgium that 32% of its physician-assisted euthanasia—that is how its law is framed—now happens without the explicit request of the patient, and we know from Belgium’s own data that it estimates that 47% is not reported. So without having these kinds of controls, you develop a very leaky system. The thought of people’s lives being ended without their explicit request is something that I find horrifying.
Baroness Cumberlege: I return to the point raised by my noble friend Lord Jopling about 41 hours. Does the noble Baroness envisage that there would then have to be a turnover of the staff with that person because we do not want people to die alone? I am thinking of how nurses operate their shift systems. This would possibly mean that you would get different people unknown to the patient coming in to sit with them during the 41 hours. Normally, nurses will try to stay with their patient for as long as possible.
Baroness Finlay of Llandaff: I thank the noble Baroness for her intervention. She has made a very important point. You would be tying up healthcare staff for an extremely long time. Indeed, there would have to be a change of shift. That is important for whoever has been involved in whichever process. The court-appointed person could change shifts and be in attendance to make sure that there was no foul play. It is not adequate just to deliver the drugs because the patient might not take all of them, and then what happens to the residue? I know the noble and learned Lord, Lord Falconer, has tried to address that. You need somebody there to make sure that people do not think, “This is going on too long. Why haven’t they died yet?”, and put a pillow over their head. If the patient is going to be one of the people who wakes up again—and the number is very small—it is worth noting that those who woke up again in Oregon did not go for a second attempt at physician-assisted suicide but continued living until such time as they died naturally of their disease. There is something much more important going on here, but it would be extremely dangerous not to have that court-appointed person or system provide for accompaniment.
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Baroness Butler-Sloss: I would like to add something to what the noble Baroness, Lady Cumberlege, said. In case of permanent vegetative state, it is well known that a number of nurses are not prepared to work with those who are bringing the person’s life to an end. Therefore, it is necessary to place the patient in a permanent vegetative state from whom nutrition and hydration have been withdrawn with those who are prepared to look after that patient, who may sometimes live for a week. This is obviously a much shorter time, but if one takes 41 hours as a possibility, I suspect there will be nurses who will not be prepared to have anything to do with what is happening. That is another point that needs to be taken into account.
Baroness Masham of Ilton (CB): I shall tell the noble Lord, Lord Jopling, about the death penalty in America where the lethal drugs had a disastrous effect, with prisoners dying very slowly.
Lord Harries of Pentregarth: My Lords, I have my name down in support of the amendment tabled by the noble Lord, Lord Carlile. He has explained the rationale behind it with his usual clarity and I am not going to repeat his arguments. I support very strongly what the noble Baroness, Lady Finlay, said about the importance of taking the whole process—the independent assessment and the administration of the drug—out of the hands of doctors and making it from beginning to end in every detail a court-controlled process.
I shall address briefly one question which may be on the minds of many noble Lords. Indeed, it has been said before that this may be to set the bar too high. It is true that under this amendment the tests are very stringent and rigorous, but surely on an issue of life and death such as this, they need to be as stringent and rigorous as possible. Provided that a decision can be made quickly—we have heard many reassurances that the courts can make decisions like this quickly—surely the test cannot be too stringent or too rigorous. What many of the opponents of the Bill are worried about is not that they are failing in compassion for people who find their life unbearable, but about the overall effect of the erosion of the value of human life in our society by decisions on this kind of issue. If the tests are rigorous and stringent and are made from beginning to end by a court process, people will be able to see that these are truly exceptional cases and there will be less effect in terms of eroding more generally the value of human life and in the way we nurse the sick and treat other people who feel their life is a burden.
Lord Deben: My Lords, I do not believe that hard cases make bad law. I have always thought that that is one of the phrases which make it difficult to have a sensible conversation. I believe that you have to be careful not to make law because of a stereotyped position. One of the difficulties in this debate is that we tend to have stereotyped views about what is happening at the bedside. It is important to realise that a whole range of different things happen at the bedside and the relationship between the patient and his or her friends and family is never the same.
I listened with great care to what the noble Lord, Lord Carlile, said. I am not a lawyer and I cannot be precise as to whether his particularities are the best that we can achieve, but I hope that the House will think seriously about the need for three key elements. First, there is speed. If we are going to have this Bill, we want someone to be able to make this decision with the courtesy that speed demands. The process needs to be fast enough to be commensurate with the seriousness of the decision. Otherwise it lengthens something which someone is in desperate need to finish.
Secondly, it needs rigour. The noble and right reverend Lord, Lord Harries, said that. There is nothing wrong with rigour, unless it is of a kind which makes speed impossible. I do not think that the rigour which the noble Lord suggested makes speed impossible. It says
to the public as a whole that we have made this change in the law, but it is not a change in the way in which we think about human life. Those who support this Bill believe that it is an enhancement of their view of human life and that the rigour is the mechanism whereby society says that it still believes deeply in the standards and values which respect human life. On this specific and particular occasion, according to these very rigorous rules, they believe it right for someone to take their own life with the assistance of someone else.
Thirdly, we have to do this in a way in which the aftermath is as manageable as possible. I hope that noble Lords will think very carefully about the effect of assisted suicide on the family and friends after it has happened. I believe that the Victorians spoke far too little about sex and far too much about death. The reverse is true today. We do not understand—because very often we are unprepared to talk about it—the effect of death on the rest of the family. I remember receiving a very considerable rebuke when I allowed—and, indeed, organised—my children to see their dead grandmother. I thought it was necessary to start the whole process of grieving. I have become more aware of the different ways in which people react today and of the difficult issue of how someone might react to death before it happens. Anyone who has been involved pastorally—whether in parliamentary or religious terms or just in terms of neighbourliness—recognises that it is hard to know how a particular person will react ultimately to what has happened.
Changes in the law along the lines that the noble Lord, Lord Carlile, has proposed are very important. We should be prepared to recognise that, although this is a decision of the patient, guaranteed by the law to be an individual decision, we as legislators have to legislate in a way which also respects and protects the effect of that decision on society. In an odd way, that is actually our biggest job. We represent society in trying to make these tough decisions. I hope that your Lordships will take seriously the need to do as my noble friend Lord Carlile has suggested, not just for the patient, not just for the doctor and not just for the assurance that we have really professional assessment of the medical advice, but also to make sure that when the children look back on the occasion, they are protected in the best possible way and are able to accept it. After all, whichever side of this argument you are on, that is crucial. Anyone who does not realise what grieving has to be if the future is not going to be seriously tarnished and damaged has not been through that experience.
Lord Blair of Boughton: May I ask the noble Lord, Lord Carlile, about the declaration in Amendment 172? I have no difficulty with the declaration except that it changes the nature of the Bill. Is this a typo or a deliberate change? The declaration declares that the person is going,
“to die within three months”.
However, the Bill says six months. If we are going to change what is in the Bill by such a significant amount, it would be better if it were an amendment in its own right.
Lord Carlile of Berriew: The intention is to reduce the period. That does appear in other amendments.
Lord Stirrup: My Lords, my name is attached to Amendment 67. At Second Reading I made it clear that my principal concern with the Bill was the way in which it affected the medical profession. The medical profession is essentially about saving, protecting and enhancing life. It is true that doctors can make decisions to withhold or withdraw artificial support for life. It is also clear, as has been said today, that they make decisions that will result in death; for example, choosing between a mother and child on occasion, or between Siamese twins. However, the intent—the driving purpose—is always to save and protect life.
In the Bill, the medical profession will be called on to cross a distinct line. It is invited to participate in the active termination of someone’s life—to participate in killing them. That is a very serious line to cross. Once it is crossed, as I said at Second Reading, there is no easily defensible position behind it. No one knows when the retreat will end.
This amendment does not allay that concern; indeed, I am not sure that any possible amendment to the Bill would address that concern completely. However, it does at least ease it to a degree. The crucial point is to remove the medical profession from the decision-making part of the process. Of course it has to be involved, and of course you need medical opinion. However, doctors are called on in the Bill to decide things that are, frankly, not even within their competence. Whether they are in the competence of anybody, including lawyers, is a matter for debate, but it is better that they should be removed from the medical profession.
The medical profession is of course called on to make a prognosis. My son is a cardiologist and has made it clear to me that, although he is called upon to make prognoses and does so, they are guesses. They are educated guesses—I have to say that they are very expensively educated guesses—but they are nevertheless guesses. They turn out to be right sometimes; they turn out to be wrong quite often—far more often than the medical profession would wish. It is an entirely different matter for a doctor to say to a High Court judge, “In my opinion, the most likely outcome in this case is X, but of course it could be Y or Z”, and for the court, on the basis of that expert opinion and all the other evidence that it has sought and assembled, to reach a comprehensive judgment. However, to ask doctors to do that is to put too great a burden on the shoulders of those who are already heavily burdened.
One of the concerns about this whole process is getting doctors to be involved in it in the first place. We know that a great many people in the medical profession are very concerned about the Bill, and would be unwilling to participate in the process. It might just be that if we are able to come up with some better decision-making process such as the one that has been outlined in the various amendments put forward by the noble Lord, Lord Carlile, we might get more of the medical profession engaged than would otherwise be the case. Surely, for those who are proposing the Bill that would be a good thing. Therefore, for those reasons, I support the amendment in the name of the noble Lord, Lord Carlile, including Amendment 67, to which I have put my name.
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Baroness Grey-Thompson (CB): My Lords, I will briefly pick up on a few points that my noble friend Lady Finlay of Llandaff raised, and on the point made by the noble Lord, Lord Deben, on stereotyping. Quite rightly, we are spending a lot of time thinking about the process of the Bill. It is absolutely important that we get this right. However, we also have to think about what someone’s end of life may be.
I have never met anyone who wants to talk about their own death or think about the process of dying. The purpose of the noble and learned Lord’s Bill is for people to die without pain. However, we also have to remember that death, in some cases, is not a stereotype. It is not always a Hollywood death, whereby people just slip away. We have to be very careful of that.
A German documentary was shown in August 2004 about the scandal of Auhagen’s death, in which the man in question wanted to use a machine to end his life, not wanting any assistance from another person. He was hooked up to the machine, and 24 hours later, he had not died. The nurse who was with him said:
“The machine … couldn’t pump all the poison into his system. The man was partially poisoned, in agony and thrashing around in a coma, frothing at the mouth and sweating”.
In Oregon, some of the data have shown that in the last few days of life patients who have requested assisted suicide go through more pain than they did before the legislation was introduced because the palliative care is not there. If the Bill progresses, we cannot allow it to happen that, if someone wants to end their life, goes down the path of requesting suicide and then goes through the cooling-off period, the proper and appropriate palliative care is not there to support them all the way through.
Lord Davies of Stamford: My Lords, I will make three points, which are important at this stage of the debate.
First, I very much deprecate the frivolity with which the noble Lord, Lord Carlile, answered my question about the time involved in producing an independent expert’s report. It is quite wrong to be frivolous about such a very important subject. Clearly, there has been a tendency to put forward a number of amendments in this group, all of which would increase both the time and the cost required to enable someone to benefit from the new regime brought in under the Bill. It is quite wrong of us in this Committee to underestimate the fact that if we passed these amendments we would add a considerable degree of cost and time. There would be the need to go to a coroner, the need for an independent medical expert, and for another independent expert who would be supposed to collect the drugs and oversee the process, and so forth. All that would mean more people, that arrangements would have to be made—in practice they cannot be made in a second or two—and that reports would have to be produced. We all know that people take some time to produce written reports, and on a matter of this kind one would take particular care to get every word in the report right. Therefore, I was not wrong to raise the issue of time and cost.
On costs, we heard with great relief some of the remarks made by the noble Lord, Lord Faulks, about the possibility of using legal aid, but we know that, however generous the Government will be, not all the costs involved in this process will be defrayed from public funds. Therefore we do not want to produce a certain situation but, as a matter of fact, we already have a situation whereby if you have enough money you can go to Zurich and solve the problem that way. There is a significant gulf at present between those who have greater financial means and those who do not as regards the choice they have as they reach the end of their lives and how they want to go. We do not want to exacerbate that, and by increasing the cost we are doing so. We simply have to take that into account and it should not be frivolously dismissed, as it was this morning.
Secondly, I want to pick up the point made by the noble Baroness, Lady Grey-Thompson, a moment ago. I see no reason why palliative care should not be continued until the moment when the patient decides to exercise his or her option to terminate his or her life under the procedures laid out in the Bill, if it becomes law. I see no reason why there should be any need to withdraw palliative care some days or weeks beforehand. That seems to me a problem that should not arise at all.
Finally, I want to address the point made by the noble and gallant Lord, Lord Stirrup, whose main objection to the Bill seemed to be that the medical profession should not be involved in decisions about the deaths of patients. That is a very serious point; I made a point along those lines at Second Reading. At present, what most of us face if we have a slow death is palliative care, which generally ends up with palliative sedation. That means that the patient is put into a medically induced coma and all means of life support, including food and liquids—not invariably so but certainly in many cases liquids as well, so that the patient is dehydrated—are withdrawn, along with any life support in the form of oxygen and antibiotics. If the patient has had kidney failure and been on dialysis, that is withdrawn, so the patient dies from blood poisoning. The patient dies in a coma, which takes a great deal more than the 25 minutes that is the average in Oregon, when people use that regime for the right to die. It takes many days, in many cases; I have known at least one case when dehydration took two weeks to kill the patient, who of course did not awaken from the coma during the whole of that period. That is the reality: every day of the week and every hour of the day, doctors and nurses take decisions determining the timing and cause of their patients’ death. They are taking the decision to withdraw antibiotics and life support, putting the patient into a palliative coma.
It is the alternative to that regime that my noble and learned friend Lord Falconer is proposing this afternoon, so that people have a choice. The whole object of the Bill is to give the patient a vote. At present, in many cases, the patient does not even know about the decision being taken by doctors and nurses, which will determine the precise means and timing of their demise. Under the Bill, undoubtedly the patient would be in the front line and the driving seat, taking the key decision, and the doctors and nurses would respond to a decision
made explicitly by the patient. That seems to me an enormous improvement. I hope that even those of us who do not want this particular regime and would not want to use it ourselves will not want to deny others the opportunity to have a choice between death in a palliative coma and death as it could be chosen under this Bill.
Lord Cavendish of Furness (Con): My Lords, there seems to be developing some suggestion that people opposed to the Bill are introducing amendments simply to add time and cost and to make it unworkable. Would the noble Lord, Lord Davies, understand that those of us who were in principle opposed to the Bill from the very outset realise that it is intended to be compassionate—as we all feel compassionate—but just find it impossible to reconcile compassion and the objectives of the Bill with the necessary safeguards? That is at the heart of the whole matter.
Lord Davies of Stamford: I am grateful to the noble Lord for giving way, but I must intervene on him. I said nothing designed to impugn the good faith and sincerity of anyone in this House, let alone people who have gone to the trouble of producing these amendments. What I said was that, whether it is intended or not, many of these amendments would have consequences in terms of time and cost, and it would be wrong of us to underestimate those consequences—and certainly very wrong frivolously to dismiss that whole issue, as happened this morning.
Baroness Finlay of Llandaff: Would the noble Lord accept the premise that we are trying to provide the evidence based on what we know happens elsewhere? My noble friend Lady Grey-Thompson outlined a reality—that we know reports come from those countries that have changed the law about patients whose symptoms are not being addressed in the days between the time that it has been agreed and when they have their lethal overdose. That is a reality that we abhor.
I would like to correct the perception about palliative sedation to which the noble Lord referred, as it is important that people out there do not have the misconception that patients are either not consulted about treatment decisions or that they are put into some kind of coma by those who are looking after them.
The evidence from Holland was presented at the international conference on clinical ethics in Paris in April this year. In Holland, about 2.7% of all deaths are from euthanasia or physician-assisted suicide. Their regime of palliative sedation is used in between 12% and 16% of cases. That is completely different from what we do here. In this country we may use sedation, titrating the drugs up temporarily to get on top of symptoms but then lowering the dose again and adjusting it to meet the patient’s needs. That is quite different from deliberately using a dose of drugs to induce coma and using uncontrolled escalations of opioids and benzodiazepine cocktails to produce absolute loss of awareness as a therapeutic goal. There is concern among those of us who are operating in palliative care in this country about that way of managing patients at the end of life. That is not standard practice here.
If the noble Lord would like to look at the recommendations on the use of sedative drugs at the end of life, I would be happy to take him through them. They are on various therapeutic websites. However, I hope he will accept that what may be said casually by people and propaganda is not necessarily what should happen, and that nobody condones the withdrawal of fluids and dehydrating people until they die. That was exactly why the noble Baroness, Lady Neuberger, undertook an inquiry into the Liverpool care pathway. It was misused because that was not what the relevant document said should happen. That was abuse, not treatment.
Lord Empey (UUP): My Lords, I wish to speak on Amendment 67 in the name of the noble Lord, Lord Carlile, but, before doing so, I want to say how much I regret the direction of travel of our Committee stage today. I should have thought it would be more profitable to debate all the amendments in Committee and make decisions on Report. However, noble Lords have decided to take the proceedings in a different direction and we will have to deal with that.
There is no perfection to be found with this Bill or without it. As we have said many times, the Second Reading debate gave an opportunity for a large number of noble Lords to express their views and the compassionate arguments that were expressed throughout that debate were very moving. Indeed, there have been similar contributions today.
I have no complaint about the way that the amendments have been grouped today, but that does mean that certain amendments are more relevant to certain issues than others. That is inevitable. My anxiety, as I expressed at Second Reading, concerns the position of the medical profession. I am not a doctor but a close relative is starting out on that road. We have given insufficient consideration to the impact that the Bill, if it is enacted, will have on the profession. As I see it, it would completely change the status of a doctor and the doctor-patient relationship.
How often have we said that, in order to provide a lethal dose or drug, the best medical person to judge that is somebody who knows the patient because no two patients are the same? Even then, that is no guarantee because you have to have some people who are specialists in the delivery of certain substances. Even then, as we have heard from the noble Baroness, Lady Masham, when people deliberately set out judicially to end a life, it turns out to be a mess. By introducing an independent element, the amendment at least separates out from this process the role of the carer and the medical profession up to that point. That is extremely advantageous. Simply to assume that we can subcontract to a profession that does not want this, against its will and without even having a discussion on it, is presumptuous, to say the least.
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Imagine the implications of this at ground level. Not everyone is capable of having an intellectually balanced debate on the pros and cons of whether they are going to die. As the noble Lord, Lord Deben, said,
for any of us over the years who have had constituents, human nature is, sadly, not perhaps as ideal as we would like. I have seen in my home patch mothers and grandmothers dumped on Christmas morning at a community centre to have their lunch, while the family cleared off to enjoy the rest of the day. This is human nature. To believe that it is anything else and there is a rational family debate on what we do with granny on Christmas morning is nonsense. Life is not like that. We are not perfect. There is no perfection to be found.
The other factor that is not considered is the effect of this on the doctors as individuals. They are carers who have given their lives to a particular profession or calling. The relationship between them and the patient will change. Whenever someone goes to a doctor, if they can be persuaded to do so, they are going for help; they are going to trust that person with intimate details of their lives. Perhaps they would say or convey more to a doctor than perhaps to anyone else. I am sure that the right reverend Prelates on the Bishops’ Bench might agree that they get a lot of that—but so do doctors. If at some point that patient, even reluctantly, goes to the doctor because they are afraid, a new dimension of fear will be added because this is not simply the person who could help them but the person who might switch out the lights. Much as I oppose the principle of the Bill, at least bringing an independent element into the decision provides some protection and begins to separate the role of the doctor-patient relationship from this process. That is important.
There is another factor. Things change and we learn. People in some countries already know the cures for certain things that perhaps we do not know in this country. There are doctors in hospitals in this city who are better than others. There are doctors who know more than others. Therefore, there is no equality of information or professionalism within one city, one country or around the world. If a doctor decided that it was right to terminate or recommend the termination of a patient’s life today, and tomorrow discovered that they had missed or failed to learn something, what would be the downstream consequences for that person? I have seen cases at home; for obvious reasons, sadly, my part of this country has experienced huge reservoirs of post-traumatic stress caused by different things. Are we going to add to that today by this process? Who knows? However, it needs to be discussed and that is what Committee is for.