Second Reading

Part of Assisted Dying Bill [HL] – in the House of Lords at 10:07 am on 18th July 2014.

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Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Constitutional and Deputy Priministerial Issues) 10:07 am, 18th July 2014

My Lords, in the last stages of a terminal illness, there are people who wish to end their life rather than struggle for the last few months, weeks, days or hours. Often it is not the pain that motivates such a wish, but the loss of independence and dignity. Those who love them often try to help, sometimes by going with them to Switzerland. Nobody wants assisters who are motivated by compassion to be prosecuted. The courts and the prosecution authorities recognise this impulse and have tried to steer a course between Section 2 of the Suicide Act 1961 and the desire not to enforce it. But the current situation leaves the rich able to go to Switzerland, the majority reliant on amateur assistance, the compassionate treated like criminals and no safeguards in respect of undue pressure. Many people, caring so much for those they leave behind, are dying earlier and alone because they fear implicating their loved ones in a criminal enterprise. They horde pills or put a plastic bag over their head when they are alone.

It is time for a change in the law, but only a very limited and safeguarded change. Good-quality end-of-life care can alleviate much of the suffering of the dying process and we must continue to strive to improve it. However, a minority of those who are dying, no matter how good the end-of-life care, do not wish to go on struggling. The principle of this Bill is that those who are terminally ill should have choice over how they die, but subject to effective safeguards that prevent pressure or abuse. It would lead not to more deaths, but to less suffering. Disabled or older people without a terminal illness would not be eligible for an assisted death. The Bill does not legalise voluntary euthanasia where a doctor directly administers life-ending medication; rather, it provides that the final act in an assisted death must be taken by a patient who has mental capacity both at the time of the request and at the time of their death.

Oregon’s Death with Dignity Act has been in place for 17 years. It enables someone who is terminally ill to request the option of an assisted death. There has been no evidence of abuse since its inception. Only a small number of patients have an assisted death—fewer than 80 in total in 2013—out of the annual 30,000 deaths in Oregon. Around 40% of dying people who meet the strict safeguards to obtain life-ending medication never use it, simply taking comfort from having the option.

Critics of my Bill cite the voluntary euthanasia laws of Belgium and the Netherlands as an example of the slippery slope. In fact, it is not a slippery slope but a deliberate path chosen by legislators in those countries. From the beginning, they created laws that allowed both dying and non-dying people to be directly helped to die based on a subjective analysis of suffering. The Belgian and Dutch laws provide no evidence of a slippery slope. More accurately, they confirm that the law you enact is the law you get. That is why it is so important that we get it right from the outset. I have built on the Oregon model, but with more safeguards. I reject the Belgian and Dutch approach.

Clause 1 of this Bill enables an adult who is terminally ill to request to be given assistance to end their own life. No other person, including the patient’s doctor, family and partner, is able to initiate the process of requesting an assisted death. Clause 2 defines “terminally ill” and “terminal illness” as applying to a person who is expected to die from a terminal illness within six months.

Clause 3 sets out the safeguards. First, the patient must sign a declaration, witnessed by an independent witness, that it is their “clear and settled intention” that they wish for an assisted death. Secondly, two doctors must countersign the declaration. Before countersigning, the two doctors,

“having separately examined the person and the person’s medical records and each acting independently of the other, must be satisfied that the person—

(a) is terminally ill;

(b) has the capacity to make the decision to end their own life; and

(c) has a clear and settled intention to end their own life which has been reached voluntarily, on an informed basis and without coercion or duress”.

In deciding whether to countersign the declaration, the two doctors,

“must be satisfied that the person making it has been fully informed of the palliative, hospice and other care which is available”,

to him or her. These safeguards are set out expressly in the Bill. While the Secretary of State has a power under Clause 8 to issue codes of practice to provide guidance to doctors in discharging their roles under the Bill, the safeguards themselves and the conditions that need to be satisfied before an assisted death can occur are spelt out in the Bill. Those who suggest that the safeguards are not in the Bill are mistaken.

Clause 4 sets out the practical arrangements for providing medicines to enable a terminally ill person to end their own life. The attending doctor would write a prescription for the necessary medication, but it would be delivered only after a 14-day cooling-off period for reflection, or six days if both doctors agree that the person is likely to die within one month. The attending doctor, or another doctor or nurse authorised by the attending doctor, would deliver the medicine at the patient’s request after the period of reflection had passed, check that the person had not revoked or did not wish to revoke their declaration and remain with the person until the medicine had been taken and the person had died, or the person had declined to take it. The person would have to administer the medication himself or herself. If a patient has lost the ability to swallow or finds it very difficult, the Bill makes provision for a syringe driver to be installed. However, it would be illegal for a healthcare professional directly to administer the medication. The final action must always be taken by the patient.

Clause 5 enables health professionals to refrain on the grounds of conscientious objection from assisting a person to die in accordance with the Bill. Clause 12 contains a sunset provision, which would enable the Bill to be repealed by resolution of each House and without the need for further primary legislation after the Act had been in force for 10 years.

The courts have said repeatedly that the current law does not work—most recently, in the Supreme Court a few weeks ago—and have urged Parliament to construct a workable law. The Bill provides for an assisted death in circumstances where there are adequate safeguards to prevent abuse or pressure on those who are terminally ill. There are those who say that you can never be sure about a prognosis of how long someone has to live. Of course, I accept that there can be no certainty. However, whether the issue is assisted death or the decision no longer to treat a patient, the physicians have to do their best. That the prognosis cannot be certain is not a reason for abandoning those who wish this option. Whether the right period is six months will no doubt be addressed in Committee.

Some say that the courts should be involved as an additional safeguard before an assisted death occurs. We should constructively consider that issue in Committee. Others say that the change in the law will place pressure to take that option on those who are dying. I disagree. The numbers will be small—that is the experience in Oregon. The safeguards make clear the exceptional nature of the course. Some say that the current law should just be allowed to continue. They are wrong. Without intending to be, and despite the very best efforts of those who seek to enforce it, the current law provides the option of an assisted death to those rich enough to go abroad; for the rest, it provides despair and often a lonely, cruel death—and no adequate safeguards.

The noble and learned Lord, Lord Neuberger, the President of the Supreme Court, said in his recent judgment:

“A system whereby a judge or other independent assessor is satisfied in advance that someone has a voluntary, clear, settled, and informed wish to die and for his suicide then to be organised in an open and professional way, would, at least in my current view, provide greater and more satisfactory protection for the weak and vulnerable, than a system which involves a lawyer from the DPP’s office inquiring, after the event, whether the person who had killed himself had such a wish, and also to investigate the actions and motives of any assister, who would, by definition, be emotionally involved and scarcely able to take, or even to have taken, an objective view”.

Some say that the Bill devalues the lives of those who are disabled and puts pressure on them to take the option of an assisted death. I disagree. The option of an assisted death is available only to those who are terminally ill and is available to the disabled on the same basis as everyone else. While it is for Parliament to reach its own judgment on the merits of the Bill, it is significant that polling suggests that support for a change in the law is just as strong among the disabled as it is in the general population. The general population supports the change at a level of above 70%; among the disabled the level is 79%.

There is a common goal, whichever side of the debate you are on, for a law that shows compassion to the well motivated who help someone to end their life when they already have a terminal illness, but in a way that provides proper safeguards against abuse and pressure. The Lords, working constructively together, can craft such a law. It will then be for the Commons to decide whether that is a law that they are willing to pass. The time for royal commissions and Select Committees has passed. Our work on the Bill will affect so many people’s lives—in the way they die and in being with someone they love as they experience a final illness. I believe that the time has come for change. I beg to move.