Assisted Dying for the Terminally Ill Bill: Select Committee Report

Part of the debate – in the House of Lords at 6:06 pm on 10th October 2005.

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Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Spokesperson in the Lords (Id Cards & Charities Bill), Home Affairs 6:06 pm, 10th October 2005

My Lords, I thank the committee for the wonderful report that it has produced, and the noble and learned Lord, Lord Mackay of Clashfern, for his chairmanship of it. Beyond and above that, however, I thank the noble Lord, Lord Joffe, for the hugely important role that he has played in bringing this most important of subjects before the House and the public, his indefatigable pursuit of the issues and his sensitivity to views other than his own. I cannot speak too highly of what he has done.

I am a solicitor very long in the tooth. I have had nearly 50 years in the profession. At different times in my career, I have dealt with old and frail people, both in the making of their wills and acting as an executor of their estates, dealing with applications to the Court of Protection. I spent four years as a coroner's assistant, an extremely educative phase of my life, where you come very close to the realities of what we are talking about. I am going to make a few practical observations.

My first is that legislation is never better than a crude instrument. We deceive ourselves if we believe that we can load on to the shoulders of legislation all the refinements and subtleties that we would wish to see in legislation allowing assisted dying. It cannot be that subtle or calibrated.

Modern legislation, I suggest, is honoured in the breach: 14,000 pages of new statute law a year, most of it remaining on the shelf. What is implemented is implemented unevenly and with undue discretion on the part of those enforcing it. How can we be sure that this most complex legislation would have the quality of enforcement and policing without which it could be wholly counterproductive?

The evidence from Oregon and Holland has been presented to us by several speakers as justifying the proposed legislation. I cannot see that. The law was changed in Oregon only in 1998 and in Holland in 2001. The most important aspects of the evidence that I would want to see are the most difficult to find. For example, there is the whole question of undue influence or pressure on old people from relatives, beneficiaries and the like: how does one go about getting evidence for or against that? I suggest to your Lordships' House that we are not remotely in a position of having adequate evidence one way or the other.

The draft Bill itself is full of ambiguities and flexibilities. I do not blame the noble Lord, Lord Joffe, and his helpers for that because we have a cruel choice in legislation. You either have something that is so fixed and certain that it is inflexible or you have something that, being flexible, is full of movement and ambiguity. I pick out a few such key words: "capacity"; "competence"; "fully informed"; "temporary relief". At the heart of the Bill, is the phrase "a few months". "Unbearable suffering" is defined as,

"suffering whether by reason of pain or otherwise".

There is no suggestion of what "otherwise" that might be. All that would lead to a position that we have seen pursuant to the Abortion Act: specialist firms of doctors offering their services as an assurance to find a way through the complexities to the result that an old person or, more likely, the relatives wanted.

Above all, we cannot have it both ways in the Bill. We cannot liberate the terminally ill suffering unbearable pain—in the way that, I understand, people want—and simultaneously protect the vulnerable old from abuse by pressure or undue influence. We cannot straddle those dual objectives. There will be the age-old problem of people saying, "I'm a burden on my family. I've had a good life. I can't afford it". That is a commonplace, and we have all seen it. I am afraid that, whether one wishes for it or not, undue influence will be the necessary handmaiden of the Bill, however unintended.

In Oregon, the research by A D Sullivan and others shows that, whereas in 1998 only 12 per cent of those requesting physician-assisted suicide felt themselves to be burdensome, a mere two years later that had risen to 63 per cent. In the 1987 MORI survey annexed to the report, 71 per cent agreed and only 12 per cent disagreed that people permanently dependent on others for medical or nursing care might request euthanasia in order not to be a burden on others. Even among geriatricians, a survey done by the universities of Sheffield and Charleston in 1999 shows that 84 per cent of them believe that legalisation of physician-assisted suicide might put pressure on vulnerable patients to request just that, and 53 per cent feared that the social process of dying and grieving might be undermined.

The balance of harm has not been weighted sufficiently for my practical view in favour of the proposed Bill. Lastly, I would call into my speech the words of the right reverend Prelate the Bishop of Oxford and my noble friend Lord Carlile.