– in the House of Commons at 7:05 pm on 10th March 2010.
Thank you for giving me the opportunity to raise this important and sensitive issue in the House this evening, Mr. Deputy Speaker.
When I served as Health Secretary a few years ago, I became increasingly concerned about the plight of individuals who were seeking an assisted death and who desperately wanted the support of their families, friends and medical practitioners, but who could not-and cannot-get that help legally, here in their own country. I was also clear, however, that the issue was not one on which Ministers in general, or the Health Secretary in particular, should seek to initiate a change in the law. As the House will remember, I already had quite enough controversies to deal with when I was at the Department of Health. I decided instead to pursue the issue once I had returned to the Back Benches, which I am now doing as a patron of Dignity in Dying, an admirable organisation dedicated to ensuring that patients can make well-informed choices about the care and treatment that they receive at the end of their lives. If I am ever faced with the diagnosis of a terminal illness, I do not know what choice I would make for myself, but I do know that I want that choice.
I want to begin by warmly welcoming the publication of the Government's "End of life" strategy. In my constituency I have seen the wonderful work done over many years by staff and volunteers at our local hospice run by LOROS-the Leicestershire and Rutland Organisation for the Relief of Suffering-and, similarly, the work of the Leicestershire-based children's hospice, Rainbow. We all want palliative care of that quality to be available in every part of the country, not just within the NHS but funded by the NHS. The Government's strategy, if and when it is fully implemented, will do much to achieve that goal.
But palliative care, however good, is not the answer for everyone. Professor Baroness Finlay, to whose work in palliative care I readily pay tribute, is a staunch opponent of any change in the law on assisted dying, yet even she has testified that palliative care is not a blanket panacea. For patients who are terminally ill, whose distress cannot be alleviated by palliative care, and who want to end their lives, what is the choice? Given the present state of our law, there is no good answer.
For some people-more than 100 Britons since 2002-the answer lies in a visit to the Dignitas clinic in Switzerland. Some 700 of our fellow citizens are members of that organisation. For others, help might come from their doctor-sometimes, but not always, acting within the present law. Professor Clive Seale, who has researched this issue in great detail, found that around one in 500 deaths in the United Kingdom-more than 1,000 a year-were the result of voluntary euthanasia, involving a criminal act. Even more-over 1,500 deaths a year-involved non-voluntary euthanasia. Other desperate people find that they have to refuse food and water-a wretched process-in order to exercise some control over when and how they die. And each year, a number of terminally ill people-it is impossible to say how many-resort in desperation to violent, lonely and often botched suicides.
Dr. Harris-on this issue, I shall call him my hon. Friend-made the point in his excellent speech in the Westminster Hall debate last November that on the one hand, our society and the law recognise and fully respect the right of a mentally competent person to refuse life-saving treatment, and thus to die. He pointed out that that applies even in the case of a 13-year-old girl. On the other hand, however, we refuse to recognise the right of a mentally competent adult who is terminally ill to seek help to die when they want to. That debate in Westminster Hall was the first on this subject in the House in the past 10 years-and an excellent debate it as, too.
The House has a long and honourable tradition of debating and then changing the law on controversial issues that, very properly, belong to free votes rather than to party manifestos. The other place, to its credit, has held a number of serious and thoughtful debates in recent years, as well as conducting its own review of this issue. When the great majority of people say that they want a law to permit assisted dying, and when there is such an urgent need to re-establish the reputation of this House, we should have the courage to tackle controversial issues rather than run away from them. In the absence of parliamentary action, however, it has been left to individuals and the courts to force the pace of change.
Last year I was approached by a constituent-a woman with a severe progressive condition, from which she will never recover, who had already suffered years of distress. She wants to go to Switzerland to die, but she does not want to go alone. She asked whether I could help her by giving her, and above all her family, the reassurance that they would not be prosecuted if they accompanied her to Dignitas. At that point, I could not. I told her that no one had been prosecuted for many years, but that several people had been interviewed by the police, and not known for months whether they would be prosecuted or not.
That situation at least has now changed, because of one courageous and determined woman, Debbie Purdy, who wanted to know whether her husband would be prosecuted if he went with her to Dignitas. After years of legal battles, Miss Purdy finally won her case. In his judgment, Lord Brown said:
"What to my mind is needed is a custom-built policy statement indicating the various factors for and against prosecution...factors designed to distinguish between those situations in which, however tempted to assist, the prospective aider and abettor should refrain from doing so, and those situations in which he or she may fairly hope to be, if not commended, at the very least forgiven, rather than condemned, for giving assistance."
As a result of that decision, the Director of Public Prosecutions, Keir Starmer, issued new prosecuting guidelines last month. This final policy, unlike the interim guidelines, was broadly welcomed by supporters and opponents of a change in the law, which I believe is testament to a difficult job very well done.
At their heart, the new prosecuting guidelines distinguish between compassionate assistance given to someone who has reached
"a voluntary, clear, settled and informed decision to commit suicide", and malicious, irresponsible or organised help. But the new guidelines, although very welcome, are not the end of the matter. Indeed, the DPP, in his entirely proper determination to avoid usurping the role of Parliament by creating a new regulatory regime for assisted suicide, might well have created a fresh set of problems. For instance, the new guidelines make no reference at all to the victim having
"a terminal illness or a severe degenerative physical condition from which there was no possibility of recovery".
Those words appeared in the consultation draft, but they have been dropped from the final guidelines. I am not sure how widely it is appreciated that the guidelines go much further than the cases of terminal illness that Miss Purdy and Dignity in Dying, in particular, were seeking to deal with.
Furthermore, the new guidelines, unlike the consultation draft, make no reference to residency requirements, so we may find that some people living in jurisdictions that are significantly more hostile to assisted dying will in future travel to the UK to commit suicide with the help of friends or relatives, just as some Britons now travel to Switzerland to seek a legal, medically assisted death.
Most worryingly of all, the new guidelines create a greater risk of prosecution for members of the medical and other caring professions. Unlike the initial draft, they specifically state that prosecution is more likely if
"the suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional or carer".
In the words of Professor Penney Lewis of the centre of medical law and ethics at King's College, London, the guidelines
"are designed to ensure that assistance in suicide remains an amateur activity carried out by inexperienced individuals without the assistance of professionals", thus increasing the risk, of course, of more desperate but botched suicide attempts.
The Medical Protection Society, which provides professional and legal support to around half of all UK doctors, tells me that in the last few years it has received a growing number of queries from doctors concerned about how to care for a dying patient. It has no policy position on the issue of assisted suicide, but it does want legal certainty for its members, and it fears that, under the new guidelines, a doctor might be risking prosecution-for instance, by providing the medical records and certificate of fitness to travel required for a visit to Dignitas.
No prosecuting guidelines, however sensitively and carefully drafted, can be a substitute for clarity in the law. Above all, they can deal with the situation only after someone has received help to die. They cannot provide any safeguards in advance-the safeguards that I, Dignity in Dying and most of the public believe are needed to protect vulnerable people from exploitation or unscrupulous pressure.
This issue is not going to go away. I am one of the baby boomer generation that has been responsible for initiating and creating so much social change. As this generation faces the end of our parents' lives and then begins to confront the end of our own lives, I believe that we will insist on change in this area, too.
On a point of clarification, does my right hon. Friend agree that the excellent palliative care provided by the hospice movement and a possible acceptance of assisted suicide are not mutually exclusive, but could provide a legitimate end-of-life choice? My late second husband, John, died in the Marie Curie hospice in Bradford. It was his choice, and I appreciate the great care that it gave him.
My hon. Friend makes an extremely important point, drawing on her own personal experience. She is absolutely right. Experience in the state of Oregon and in the Netherlands, for example, shows that wonderful palliative care, far from being reduced or diminished by a change in the law to allow assisted dying, is actually increased by it.
For all the reasons that I have set out, I have come to the conclusion that we need a royal commission-an independent inquiry of that stature-to look at the evidence from places that have already legalised assisted dying, to consider the numbers of British people seeking an assisted death either here or abroad, to examine the position of medical and nursing staff under present law, and to make proposals on how vulnerable people might best be protected from abuse or exploitation if the law were to be changed. Such a report could then form the basis for the wider debate that we need, not just among the public but above all in Parliament, about the best way forward.
Late though it is in the present Parliament, I urge my hon. Friend the Minister to do her best to persuade the Lord Chancellor of the merits of this proposal. I for one have no doubt that it is no longer a question of whether the law will change but a question of when it will change, and I hope that this evening's debate will be another small step towards that end.
I congratulate my right hon. Friend Ms Hewitt on securing the debate. The law in this area arouses strong and deeply divided views-across the political divide-the public, the media and many Members of the House. In Parliament the debate has taken place mostly in the other place, and it is therefore good for the House of Commons to have an opportunity to contribute to it. However, we are clearly still a long way from reaching a consensus.
Under section 2(1) of the Suicide Act 1961, as amended by section 59 of the Coroners and Justice Act 2009, it is an offence to do an act capable of encouraging or assisting the suicide or attempted suicide of another person with the intention to so encourage or assist. The Government believe that any change in the law is an issue of individual conscience, and is rightly a matter for Parliament rather than Government policy to decide. The Government therefore take a neutral view when others seek to change the law, which means that we, as the Government, should neither stand in the way of such a change nor actively pursue it.
The same applies to the law applying to the closely related issue of mercy killing, which has been highlighted by recent cases of which all Members will have learnt from the media. As we have observed this evening and in broader discussions, assisted suicide and mercy killing often form part of the same debate, but, while both raise difficult moral issues, there is an important distinction between them. Intentionally taking another person's life is murder, unless a partial defence applies to reduce the offence to manslaughter. Helping another person to take his or her own life is covered by the offence of encouraging or assisting suicide.
As my right hon. Friend said, the Law Commission made a recommendation in relation to mercy killing in its 2006 report "Murder, Manslaughter and Infanticide", which constituted the first of two stages of a review of homicide law. The issue of mercy killing fell within the scope of the Law Commission's review, but only to the extent that it related to the grounds for reducing a more serious offence to a less serious offence of homicide, and it was considered in that context. The underlying ethical question of whether it should be legalised was outside the commission's terms of reference. The commission recommended that the Government undertake a public consultation on whether, and if so to what extent, the law should recognise either an offence of mercy killing or a partial defence of mercy killing. We said at the time that any change to the law in relation to mercy killing was an issue of conscience and one for Parliament to decide, and, as I have said, that remains our view.
Let me now address the law on assisting suicide. Whether there are any circumstances in which it should be legal to assist another person to die is also a highly controversial issue. It raises huge ethical questions, to which there are no easy answers. My postbag at the Ministry of Justice reflects the real concerns of members of the public about the issue, and the extent to which it polarises opinion. I receive many passionate letters on both sides of the debate, not only about the issues raised by my right hon. Friend but about the personal circumstances raised by my hon. Friend Mrs. Cryer. Even if one accepts that the law should change, there is no consensus on where a line should be drawn or on what safeguards should be in place, and for whom.
My right hon. Friend the Member for Leicester, West contends that terminally ill, mentally competent adults who are suffering at the end of their lives should have the choice of an assisted death, within safeguards. I am of course aware of opinion polls suggesting that there is strong public support for such a change in the law and I do not doubt the compassion that drives those who believe so strongly in that view. No one could fail to sympathise with those who are faced with the sort of difficult decisions that none of us would ever want to make, but even the most limited step in this area would fundamentally change the principle we have held to so far on the ethics of assisted suicide.
I am not saying it is a step we in Parliament and as a country should not take, nor do I want in any way to minimise the suffering individuals face and the wish of some of them to end their lives, but we should not underestimate the magnitude of any change that says that we can help people to kill themselves rather than merely helping them to withstand their suffering.
Proposals to change the law have been debated in another place on a number of occasions, but none of the private Members' Bills introduced there has progressed further than Second Reading despite the fact that the Bills would only have affected the terminally ill and were progressively narrower in scope. The issue was also looked at in great detail by a Select Committee from March 2004 to March 2005, but the Committee did not take a position either way on the central issue.
My right hon. Friend also contends that a change in the law is necessary to bring it into line with the practice of the Director of Public Prosecutions. As she said this evening, it is often reported that the Crown Prosecution Service has failed to prosecute more than 100 cases where people have been given assistance to travel to the Dignitas clinic in Switzerland. However, in its judgment in the Purdy case, the Court of Appeal referred to evidence given by the CPS that, as far as it could ascertain, only eight such cases were ever referred to it and all but one failed to meet the level of evidence required for a prosecution.
Since that evidence was produced, I am told that one further case has been considered and not prosecuted on public interest grounds. So, there are not in fact a large number of cases in which the CPS has decided that there was sufficient evidence of an offence but decided not to prosecute. As hon. Members will know, following a 12-week public consultation on the interim policy issued last September, the CPS published at the end of last month a policy for prosecutors in respect of cases of assisted suicide. It sets out the factors that prosecutors will consider when deciding whether or not it is in the public interest to prosecute someone for encouraging or assisting suicide.
It is not the case that in publishing such a policy the DPP has in effect changed the law. As the policy makes clear, it is not for the director to change the law and nor can he give any prospective immunity from prosecution. The director himself has made this point strongly and with the utmost clarity. Neither is it the case that, in exercising his discretion in deciding whether to prosecute someone for assisting suicide, the director is doing anything now that he was not doing before the policy for prosecutors was published. Under section 2(4) of the Suicide Act 1961, there has always been a requirement for the director's consent to a prosecution for a section 2 offence. In exercising that discretion, he has always had to weigh up the public interest factors for and against prosecution on the facts of individual cases.
Many of those who oppose any change in the law are concerned that it would weaken the protection that the law affords the most vulnerable people in society. They believe that no safeguards, however stringent, could ever eliminate the possibility that a vulnerable person might feel pressure, whether real or imagined, to end their life.
I am grateful to my hon. Friend for her thoughtful response to the debate, but I hope that she will accept that the current law provides no safeguards whatever in relation to the rather large number of deaths that Professor Seale found involved a criminal act, however compassionate the motive, on the part of the doctor or other medical practitioner. More broadly, does she accept that the case for Government neutrality that she is making might well apply to initiating a change in the law, but does not apply to establishing a royal commission, which I have suggested?
I shall discuss the royal commission in a moment. Other possible assisted suicide incidences were covered in exactly the same way by the Director of Public Prosecutions in relation to the decision on whether to prosecute. The Government remain neutral on that and it will remain a matter for Parliament.
Let me return to the factors that the Crown Prosecution Service take into account when deciding whether to prosecute. One factor in the interim policy was whether the victim had a terminal illness, a severe, incurable physical disability or a severe degenerative physical condition from which there was no possibility of recovery. During the consultation on the CPS policy, that issue was one of those most commented on. Many respondents to the public consultation felt that including that factor gave the impression that the lives of people who are affected in those ways were less valued in the interim policy. Although the CPS did not accept some of the arguments that were made, it recognised that any factor that might suggest that the act of encouraging or assisting the suicide of someone who was suffering in such a way was somehow less serious, simply by virtue of the victim's physical condition, was inappropriate for inclusion in the final policy and so that factor was removed. The final policy is more focused on the motives of the suspect rather than on the characteristics of the person who committed or attempted to commit suicide. There is a distinction to be made between the law and prosecution policy, but the level of public concern about the inclusion of that factor in the interim policy is indicative of the concern that might be felt about any proposal to change the law.
My right hon. Friend the Member for Leicester, West, and others in another place, have suggested that there should be a royal commission or other independent investigation to assist Parliament in considering this issue. As she has said, this matter was debated in the other place as recently as
The legal, administrative, practical and resource implications of making any change to the law in this highly controversial area are considerable. We cannot do justice to this issue in this short time, and it cannot be resolved in the short time remaining in this Parliament, but I have no doubt that the debate will continue in one form or another in the next Parliament. In the mean time, I thank hon. and right hon. Members for their valuable contributions to this incredibly important debate.
Question put and agreed to.