Committee (2nd Day)

Assisted Dying Bill [HL] – in the House of Lords at 10:00 am on 16th January 2015.

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Votes in this debate

Amendment 12A

Moved by Lord Phillips of Sudbury

12A: Before Clause 2, insert the following new Clause—

“Legal aid

Legal aid shall be available in respect of the application for the consent of the High Court (Family Division) in accordance with regulations made by the Secretary of State exerciseable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.”

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat 10:06 am, 16th January 2015

My Lords, this is in the nature of a probing amendment. On the first day in Committee your Lordships decided overwhelmingly that a person may only obtain an order subject to the consent of the High Court, Family Division. You do not need to be a lawyer—I am a very long-in-the-tooth lawyer—to know that applications to the High Court of any sort are apt to be expensive. In respect of what could be an extremely tense, complex and contested application under the Assisted Dying Act, as it will be, the issues to be dealt with by a judge could be both numerous and difficult of deliberation. It is not impossible that members of the family might wish to be heard on such an application. At all events, I put it to the Committee that we cannot legislate on this important measure knowing that access to its provisions will be confined to the better-off.

Most people, particularly those lacking in confidence and articulacy, will not be able to bring an application of this sort without legal assistance. If they want to intervene in the proceedings, similarly they will not be able to do so without legal assistance. That of course means expense—sadly, very considerable expense. I therefore tabled this amendment with a simple objective, which is to make the Bill democratic and fair—a Bill of equal access—and I hope that it will commend itself to the Committee. I am well aware that there may be defects in its phrasing—

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

My Lords, before the noble Lord concludes, he has indicated his expectation that the level of cost will be pretty significant. Can he give us in very broad terms an assessment of what the range of probable or likely cost might be?

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

The short answer is no. Lawyers charge very different amounts. A city lawyer charging £500 or £700 an hour is rather different from a country lawyer charging £100 or £200. It will also depend, as I said, on the complexity, but one is talking of thousands, not hundreds, of pounds. That is about the best I can do on that. However, as I said, I hope that the principle will commend itself to the Committee and that necessary changes to the drafting of my amendment can be dealt with prior to the next stage. I beg to move.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords

My Lords, I was rather taken aback by this being such a short debate. I very much welcome the noble Lord’s amendment. We discussed this matter at a little length on the first day of Committee. As he said, applications to the High Court in the circumstances of the Bill, if enacted, could, but not always necessarily, involve complex procedures. The noble Lord is not able to quantify the cost and that is entirely understandable. However, I recognise that for any Government there is then a problem in not knowing that potential cost.

On the first day in Committee, I thought that the Minister was reasonably sympathetic to the point. He referred to the LASPO Act, which has,

“an exceptional cases provision which deals with questions of the Human Rights Act and the convention requirements”.—[ Official Report , 7/11/14; col. 1879.]

He said that that was as far as he could then go on the question of legal support. Without entering into any question of financial commitments, which will no doubt haunt both sides of the Committee, I just ask whether he can go a little further and become a little more sympathetic on this issue.

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

My Lords, it is not a question of sympathy. As the noble Lord well understands, it is a question of not committing a future Government as to how they would respond to this position.

It might help if I clarify that the scope of civil legal aid is set out in the LASPO Act 2012. It provides that civil legal services are to be made available subject to satisfying the means and merits and the matter or type of case being within the scope of the civil legal aid scheme. In order to bring a matter within the scope of the civil legal aid scheme, an amendment to Part 1 of Schedule 1 to LASPO would need to be made. The power to make such an amendment by way of affirmative secondary legislation is already set out in LASPO. It would therefore be unnecessary and not usual practice for separate provision to be made in other primary legislation to provide such a power.

That is the position quite apart from the question of exceptional funding, which is concerned, as I said when we were last in Committee, with matters where it could be said that there was a violation of the convention right or, alternatively, a violation—although I do not think it is relevant—of some provision of EU law. That remains an uncertain provision, but it could potentially be relevant, so that is my answer.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Constitutional and Deputy Priministerial Issues)

I am grateful to the Minister for his clarification saying, in effect, that there is already power to make sure that this is covered so far as legal aid is concerned under existing legislation. Three points are worth making. First, the key point is that anyone in the situation of considering an assisted death should feel that they would have access to proper legal advice so that the application would not appear to be a burden. Secondly, I completely agree with the noble Lord, Lord Phillips of Sudbury, that it is difficult to identify what an individual case might cost and involve. Some cases will involve no opposition, it being completely agreed and clear that this is the right course to take but nevertheless it should still go to the High Court. It would be very helpful to have a lawyer to help the family through that process. Others may involve more. I suspect that most cases would be on the uncontested end of the spectrum, but we have to provide for the other end of the spectrum as well.

I submit that the appropriate course to take would be that this is covered by legal aid. We should also try to build in easy access in hospitals and with doctors so that people know where they can go to get this help. The key thing is that the family should know that if they need legal help they can get it, it can be obtained easily and quickly and if they cannot afford it it will not cost them anything. I agree in principle with the approach that the noble Lord, Lord Phillips, is taking. I suspect that it will not need an amendment to the Bill.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat 10:15 am, 16th January 2015

My Lords, I am grateful for the Minister’s helpful reply and for the intervention of the noble and learned Lord, Lord, Lord Falconer of Thoroton. I will consider this extremely carefully. I personally think that it would be appropriate and simplest if we were to have a provision in this Bill rather than having to set in train a completely new statutory instrument, with all the separate procedures that that would involve. I should be grateful if Members of the House, after reflecting on this short debate, would get in touch with me if they have a particular view on the options that are now presented to us. For the moment, I am happy to withdraw the amendment.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour

The noble Lord mentioned that legal aid should also be available to members of the family and my noble and learned friend Lord Falconer made the same point. Would he take that view if members of the family were opposed to the wish of the person seeking assisted suicide? For example, if parents of a young person of 18 or 19 wanted to intervene, would his amendment cover the position of such parents?

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

I am grateful for that intervention. I think my answer is this. I speak with the experience in the early part of my career of having had a lot to do with family matters and of acting for a coroner. The sad fact is that applications under the Bill when it is enacted could be highly contested, especially in circumstances where a close relative believes that undue pressure is being brought on the person making the application and is convinced that the application needs proper airing before a judge. I know that doctors will give their opinions, but sometimes the facts are complicated. Members of the family will not be able to approach doctors to say, “For goodness’ sake, do you not know blah blah blah?”. One needs to make arrangements for legal aid in such cases. I am utterly convinced that it would be scandalous if we allowed this to go forward without making arrangements for people who cannot afford legal advice. I beg leave to withdraw the amendment.

Amendment 12A withdrawn.

Clause 2: Terminal illness

Amendment 12B

Moved by Baroness O'Neill of Bengarve

12B: Clause 2, page 1, line 12, after “of” insert “assistance with suicide provided under”

Photo of Baroness O'Neill of Bengarve Baroness O'Neill of Bengarve Crossbench

My Lords, this is a clarificatory amendment looking at the purposes of the Bill. We might think that they are already entirely clear and I agree that in negative respects it is absolutely clear that this is not a euthanasia Bill. It is not comparable to legislation that exists in the Low Countries: it is something else. But I think we left Second Reading very unclear about what it is. It is labelled an Assisted Dying Bill, but its provisions are about assisting suicide. That makes a difference.

The evidence that the purposes of the Bill were not well understood at Second Reading can be seen in the number of speeches in which noble Lords related very sad stories about difficult deaths where the death would not have been eligible under this legislation, whether because it was a chronic not a terminal condition or because it was, although terminal, not the case that the person had the relevant mental capacity. It would be helpful to us all to focus on what the Bill is actually about, which is assisting suicide. As a number of noble Lords said at Second Reading, the legislation that is intended to be changed by this Bill is the Suicide Act 1961. It is intended to alter the provisions by which people aid and abet another person’s suicide. It should be very clear in the text of the Bill that that is what it is for. We all believe in truth in advertising. I suggest that we want clarity in legislation and the same sort of truthfulness. I beg to move.

Photo of Lord Gold Lord Gold Conservative

My Lords, I have put my name to this amendment because I agree entirely that we need certainty in our understanding of what this legislation is for. At the moment, although there is some reassuring language in the Bill, I do not think it clarifies what the noble Baroness has just stated, which is that this is a measure to assist suicide.

I am sure that all noble Lords have had correspondence—I have received many letters and e-mails—reflecting great uncertainty as to what this is all about. One of the things we in this House must do is make sure that, if we pass the Bill into law, we have spelt out exactly what it is for and the exact process that people will go through if they are to be able to take advantage—if that is the right word; I do not think it is, really—of this legislation. I hope that we will agree to clarify the position.

Photo of Lord Brennan Lord Brennan Labour

My Lords, I rise to support the amendment for the following reasons. Parliament should speak the truth in legislation. In so doing, whatever degree of sentiment we strongly hold for or against an issue, when it comes to the very content of a statute there is no room for emotion and definitely no place for euphemism. The right words should be used in their right meaning. An Assisted Dying Bill could easily be understood to refer to a palliative care Bill. An assisted suicide Bill tells the truth, and the Bill should say that on its face.

It is a legislative irony that in Switzerland, which gave rise to Dignitas, the legislation specifically refers to suicide. At present, the word “suicide” appears only once in this Bill, in Clause 6(2), and that occurs because of statutory necessity. For the Bill to pass, the medical participant must be given an exemption from prosecution under that Act, otherwise the law will be broken. In the Bill’s present content the word is used once to amend a previous law, but not again.

It is necessary to use the word “suicide” because, first, death is normally a passive process. Medical participation in producing another person’s death is an active process. It involves the person wishing it, the doctor being satisfied and thus able to certify that it is reasonable, a process for use of the drugs that are to be given, and then the prospect of statutory provision. All of that surely requires clarity of expression. Secondly, it is necessary to better inform both our debate and public debate. In a Gallup poll conducted in 2013, 70% of the participants agreed with the proposition to:

“End the patient’s life by some painless means”, but only 51% were ready to agree to:

“Assist the patient to commit suicide”.

The more bland and emollient the language used, the more acceptable the proposition becomes. The clearer the language, the more we are in touch with reality, and the better the decision to be made.

The Committee benefits from Members such as the noble Baroness, Lady O’Neill, with her clarity of thinking, accuracy of expression and modesty in presentation. I commend the amendment. Returning to my first point, there should be truth in legislation and, using her advice, we should pass this amendment because it is commensurate with the gravity of the issue with which we are dealing: life, or death, committed at the hands of a third party.

Photo of Baroness Meacher Baroness Meacher Crossbench

My Lords, I want to make one brief point. I agree with the speakers who have contributed so far that we need clarity and truth. The issue here is the decision to be made. If someone wants to commit suicide, they are deciding whether or not they wish to die. This Bill is not about that at all. It is about people who are dying, and the only question for them is how they die and whether they can die with dignity. That is an entirely different question, and it is extremely important that the Bill is absolutely clear about that distinction.

Photo of Lord Cormack Lord Cormack Conservative

My Lords, I hate to cross swords with the noble Baroness, for whom I have enormous respect, but frankly she is wrong. This is about accelerating a death by wilful means, and there is no case for ambiguity here. The noble Lord, Lord Brennan, has made a powerful speech and I endorse all that he said. There is no case for ambiguity. We are talking about terminally ill people who have decided— often, I imagine, after long and careful thought and in consideration of their families—that they want to bring forward the termination. That is suicide, and they are going to be assisted. It would be in the interests not only of clarity but of honesty to make the Bill the “assisted suicide Bill”, because then we would know what we are talking about and people in the country would know what we are talking about. There is a powerful case for the Bill and a powerful case against it, but there is no case at all for fudging it.

Photo of Lord Cashman Lord Cashman Labour

My Lords, I want to speak on this issue and against the amendment. Some colleagues will know that shortly before I entered this House, my partner died of a very aggressive cancer known as angiosarcoma. It came back swiftly and his death, I am certain, was assisted. During that period at the brilliant Royal Marsden Hospital, I was absolutely clear that if my husband of six years and partner of 31 years was to die, I wanted to die with him. I raise this not out of any sentiment or emotion, but for the very clarity that we need when dealing with assisted dying. I was healthy and wanted to commit suicide to end a healthy life. My partner—my husband—was facing a death that could happen in a week, three days or three months. To see him almost completely out of his senses because of the morphine, but still aware that he was unable to breathe, offered me clarity enough that I wanted to commit suicide and that my husband, who was dying, needed his death accelerated. With respect to noble Lords who are proposing this amendment, it will not bring clarity; it will, sadly, do the reverse.

Photo of Lord Pannick Lord Pannick Crossbench 10:30 am, 16th January 2015

My Lords, that was a very powerful speech. The Bill as it stands seems to me to involve no lack of clarity whatever. Clause 1(1) is perfectly clear:

“A person who is terminally ill may request and lawfully be provided with assistance to end his or her own life”.

What does assistance mean? Clause 4(1) is perfectly clear:

“The attending doctor of a person who has made a valid declaration may prescribe medicines for that person to enable that person to end their own life”.

There is no lack of clarity there. We may disagree over whether this is a desirable or an undesirable Bill, but the idea that people in the country do not understand the issues because of the wording of the Bill is simple fanciful.

Photo of Lord Winston Lord Winston Labour

My Lords, with great respect to my noble friend Lord Pannick, I disagree, and totally agree with the noble Baroness, Lady O’Neill. There is another issue beyond clarity here. One of the issues that was raised at Second Reading and, I think, on the first day in Committee was the concept that fragile and possibly deranged, angry and distressed elderly people coming into hospital have of the nature of their status as patients. The use of the word “suicide” brings clarity for them, because it makes a very big difference to medical and nursing practitioners, who can quite clearly see that they will not be involved in a process of assisted dying. It is, effectively, suicide, and that limits any notion of how they might feel when they feel that somebody is not really worth supporting in hospital. This is a major problem and will become an increasing one. We see the increasing difficulties in the health service when dealing with cancer care at the moment and the provision of drugs. There will be pressures on budgets and increasing pressures on patients who will feel under pressure to take a decision that is not entirely theirs. I therefore support this amendment.

Photo of Lord Mawson Lord Mawson Crossbench

My Lords, I agree with the previous speaker. I do not believe there is clarity in the country about this matter at the moment. This is the first time I have spoken in Committee on the Bill, and I think I was the only person at Second Reading to draw attention to the practical implications of the Bill for modern multicultural Britain. Today in this country we are privileged to share our lives with virtually every nationality and culture on earth. This is a great privilege but also a considerable responsibility when it comes to the life and death issues captured in the Bill. It is from within this context, having spent the past 31 years working in the East End of London, that I speak today.

On an issue as sensitive and as important as the state helping people in modern Britain to sign their lives away, it is very important that the national debate about these matters is carried out as fairly and objectively as possible, so that British people can make balanced and informed judgments about these important matters that affect both them and members of their families. One of my primary concerns in speaking today is to ensure that the hard facts are all on the table and can be seen in the clear light of day. In that regard, the words we use in the Bill and what we mean by them really matters when we have to translate their meaning and purpose into the languages and dialects of every nationality on earth—but more of that later.

The Second Reading debate in your Lordships’ House and the first day in Committee demonstrated the House at its best and brought to the surface the very real, practical and complex issues for all to see, if only members of the public were allowed to both hear and see them. This House, packed as it is with so much experience and knowledge, is probably the only place in the country where a debate such as this can take place in a way that addresses the detail in all its glory.

That said, I have been concerned during the process of this debate in the country that some of our media, which have a responsibility to educate and inform the general public about all sides of this argument, have simply gone into campaigning mode. It would be interesting to ask how many of the journalists and commentators have actually read Lords Hansard and dug down into the issues with us, and then honestly and fairly communicated their findings. This issue sadly lends itself to lots of sentimental stories on all sides, but the hard realities are far less palatable in a media-driven age that skims across the surface of our lives.

I am concerned that much of our media are not covered with glory with regard to setting out clearly the complex choices and practical issues that need to be understood if members of the public are to seriously engage with the issues and make informed choices on this matter. I have tested this at home with members of my own family and got the sense, before they were encouraged to look further, that, for them, going for this injection would be a bit like going to the optician or dentist. Of course, the dentist analogy carries with it far more personal experience, I suspect, and fear.

There have been considerable sentimental stories about individuals in our media who, of course, have gone through terrible times, without the necessary balance given—

Photo of Lord Dykes Lord Dykes Liberal Democrat

I am extremely grateful to the noble Lord for giving way and I apologise for interrupting him and his interesting remarks. But would it not be a courtesy to the Committee, bearing in mind the pressure on time, to refer specifically to this amendment?

Photo of Lord Mawson Lord Mawson Crossbench

My Lords, the words we use are important, as is how the general public hear the words we use, and I think that these matters are far from clear in the country. I am not convinced that the balance has been given and the counterarguments shared. In this matter, I think that what I have to say is important.

Many of us in the Chamber have been involved in campaigns over the years, and we know how easily experienced politicians can collude, through their networks of relationships in the media, with campaigning journalists who love a nice story and funders, and put an act together. Good luck to them, I say. However, on an issue as important as this, this activity needs to be seen for what it is. Good objective presentation must be the order of the day if people are to be able to make informed choices.

Photo of Baroness O'Cathain Baroness O'Cathain Chair, EU Sub Committee B - Internal Market, Infrastructure and Employment

I am very grateful to the noble Lord for giving way. This is such an important day and we are, in effect, time-limited. We cannot really start the day by having Second Reading speeches.

Noble Lords:

Hear, hear.

Photo of Lord Mawson Lord Mawson Crossbench

My Lords, I am happy to hear that, although I think there is a debate to be had. I am happy to sit down but there is an issue here, which is being drawn to the surface, about the words we use and about what the country understands is happening about this matter. I am happy to sit down, although I was going to illustrate the point with a practical example from the BBC about these matters and with an experience I had, where it was absolutely clear that large parts of the general public were not clear about this. I think the noble Lord, Lord Winston, has put his finger on a point that needs to be listened to.

Photo of Lord Ashton of Hyde Lord Ashton of Hyde Lord in Waiting (HM Household) (Whip)

My Lords, the noble Baroness, Lady Campbell of Surbiton, has been trying to get in for some time. I think the Committee would like to hear from her.

Photo of Baroness Campbell of Surbiton Baroness Campbell of Surbiton Crossbench

My Lords, I thank the Minister. I am sorry I have not got a loud voice. I may be a little slow. This is not because I want to hold up the Bill, I just have things to say.

We have been told time and again that disabled people with life-limiting conditions—and I use that term advisedly because we do not recognise the terms

“terminal illness” and “months” or “weeks to live”; but more about that later, under a suitable amendment—have nothing to fear from the Bill. We are told that it is necessary only to help a few desperate individuals to end their lives when they have weeks or months to live, and that, if enacted, it will not touch anyone who does not want it. I do not believe that and, it seems, neither do the authors of the Bill. Why else would they elect to name it the Assisted Dying Bill instead of the assisted suicide Bill? If it is truly concerned only with personal autonomy and choice, surely that should be celebrated and clear.

By avoiding the term “assisted suicide”, the Bill circumvents the framework of measures in place to review, monitor and prevent other forms of suicide. It seeks to exclude deaths under the Bill from the general requirement for a coroner’s inquest to be conducted where suicide is considered a possible cause of death. It contains a provision for publication of annual statistics of “assisted deaths” separate from the established arrangements for collecting and publishing statistics on deaths by suicide. It provides for a death under the Bill to be recorded by the registrar as an “assisted death”.

I have a question for the Minister. This Government, like their predecessors, have a major cross-departmental suicide prevention strategy. It seeks,

“a reduction in the suicide rate in the general population in England”, and defines suicide as,

“a deliberate act that intentionally ends one’s life”.

In the light of this definition, will the Minister inform us whether, if the Bill were to become law, he anticipates a rise in the suicide rate, and would he expect the suicide prevention strategy to contain measures to reduce the numbers in this group intentionally ending their own lives?

We all, in this House and outside, understand the word “suicide”. It centres on the individual. The act of suicide is the responsibility of the person who commits it, and no other. It is impossible to commit suicide without first consenting to do so. The same does not apply to the word “dying”.

Assisted dying is practised in Belgium, the Netherlands and elsewhere. Whatever the initial intentions were, decisions to end life in those places are now not taken only by the individual. It is not an autonomous act. The slippery slope is oiled by the vague euphemism of “assisted dying”. Disabled and terminally people are rightly frightened that the Bill, as currently named, puts them at risk. The purpose of the amendment is to provide some safeguards through the use of plain language. “Assisted suicide” makes it clear that only the individual may instigate and control the process leading to an early, state-sanctioned death. I urge noble Lords to support this argument.

Photo of Lord Deben Lord Deben Conservative

My Lords, there is a deep reason why so serious a Bill should be particularly careful about the language it uses. One of the problems we have today is that people use language in order to establish not the truth but a slight version of the truth that they wish to pass off. I hope the House will excuse me if I use what may appear to be a flippant example but I think it sums it up.

In the register of interests, I declare that I am the chairman of the Association of Professional Financial Advisers. The Financial Services Authority decided to call the changes that it wanted in the industry, “treating customers fairly”. This was done to suggest that anybody who did not agree with every fact in the policy would be treating customers unfairly. It was designed to have a particular effect.

The public outside are very often as uncertain about the Bill as many inside. I cannot say how many of my noble colleagues have said to me, “I really am very unhappy about this Bill but on the other hand I feel I ought to take it very seriously and I am really trying to work my way through it”. Any of us who do not admit that we have to treat this issue very seriously indeed are ignoring the seriousness of the way in which the noble and learned Lord, Lord Falconer, has introduced it. Even those of us who have taken a view that the Bill is not one that we can support have a duty right the way through to make sure that people who are struggling to find an answer are not misled.

This is a narrowly drawn Bill and I believe that those who promote it should be very concerned to ensure that the world understands it as a narrowly drawn Bill. That is why I find that I am on the side of the noble Lord, Lord Winston, because I think that “assisted dying” gives people outside a misunderstanding of what this is about, which should be to the detriment of those who want the Bill to pass—I do not, but they should understand that it is to their detriment. I also think that this House has a real duty in a world that increasingly uses language not to explain and express but to change people’s approaches, because it is worded in that way.

I will make just one last comment. Cardinal Newman, in his great debates with Charles Kingsley, said that truth was not what left the mouth but what was heard in the ear—that we can tell the truth in the sense that we can defend that what we said was absolutely correct but we can say it in a way that we know will be heard differently from the way in which we have expressed it. When we discuss a Bill of this kind, we have to be very careful to remember that absolutely essential definition: truth is what the hearer hears. I think “suicide” is what the hearer needs to hear, and all sides of the House should accept that. “Assisted dying” is not what the hearer needs to hear because that will mean something quite different.

Photo of Lord Harries of Pentregarth Lord Harries of Pentregarth Crossbench 10:45 am, 16th January 2015

My Lords, I have put my name down to Amendments 129, 130, 132 and 152 in this group, which are all concerned to achieve the same purpose as the amendment moved by the noble Baroness, Lady O’Neill—clarity and honesty.

The point has already been made that this is an amendment to the Suicide Act and therefore consistency alone demands that we use a word such as “suicide” rather than “dying”. Before the Bill started to be discussed, if you asked the average person what the phrase “assisted dying” meant, I think most people would say that it would be to try to help a person who is dying be comfortable and out of pain, and that they had somebody with them to accompany them in this process, this journey out of this world. That is what “assisting” them would be. It would be totally different from taking active steps to end their life. I am rather surprised by the conviction with which the supporters of the Bill are opposing what we are asking for, which is simply clarity, honesty and a doing-away of the cloak of these euphemisms—it occurs not just in the case of the word “suicide” but, as we will discuss later, in the use of the term “medicine” instead of “lethal drugs”. Let us go for clarity and honesty. Even supporters of the Bill should approve of that.

Photo of The Bishop of Carlisle The Bishop of Carlisle Bishop

My Lords, I speak in support of the comments made by the noble Lords, Lord Cormack, Lord Winston and Lord Deben. As the noble and right reverend Lord, Lord Harries, has just made clear, the Bill seeks to amend Section 2 of the Suicide Act 1961. This should be made explicit throughout the Bill: it will allow doctors to assist in the suicide of a terminally ill patient. Regardless of a person’s state of health, if they deliberately end their own life, they are committing suicide rather than simply hastening the process of dying. Anyone else involved in this act is assisting a suicide.

In making this as clear as possible, the amendments in this grouping, some of which have my name attached to them, are seeking to be constructive. As has been mentioned, some strident voices in society claim that this is a euthanasia Bill; it is clearly not. But outside this place, there is some confusion about what the Bill is seeking to legalise, which must be dispelled. First, doctors must understand exactly what the Bill will require of them. Secondly, the terminally ill, who might seek to take advantage of provisions within the Bill, must understand that ultimately they will be required to take their own lives. Finally, society must understand the change to the law that Parliament is considering.

The amendments encourage us to move beyond mere slogans. They introduce an element of clarity which is a prerequisite for proper scrutiny. They also bring sharply into focus what the Bill seeks to do and what it does not.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour

My Lords, it is a besetting vice of politics to use language which is designed to achieve the maximum of impact and the minimum of definition; I very much agree with the words spoken just now by the noble Lord, Lord Deben. In doing so, we degrade our politics. One expects that in advertising; one does not expect it in politics and in government, and it is very bad for the confidence of the public in politics and the legislative process.

There is a better model that it would be worth looking at for a moment. A Bill was brought into the Scottish Parliament by Margo MacDonald entitled the Assisted Suicide (Scotland) Bill; it was not entitled the assisted dying Bill. There is the model of precision, accuracy and candour which the Committee should follow. We should support the amendment in the name of the noble Baroness, Lady O’Neill.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Liberal Democrat

My Lords, it is always a pleasure to follow the right reverend Prelate the Bishop of Carlisle, not least because he and I have a greater insight than most into each other’s parliamentary lives, as we receive a great deal of each other’s post on a mostly daily basis.

I hesitate to disagree with words used so firmly by the noble Lord, Lord Pannick. I do so particularly because, not so long ago, he appeared as my counsel in a public law case with his customary brilliance. However, the emphasis of his assertion, that this Bill is perfectly clear, is in my view just plain wrong, mainly for the reason given so clearly by the noble and right reverend Lord, Lord Harries of Pentregarth. As he was speaking, I was thinking back to the death two years ago of my then 98-and-a-half year-old mother. The family took enormous steps to assist her death. We put her in the place that we thought was most comfortable for her death—she did not agree, but that was characteristic of our robust and loving relationship. We took steps to ensure that all her grandchildren and great-grandchildren went to see her. We brought her her favourite alcoholic beverage, something rather eccentric called Wiszniowka. We did everything we possibly could to make her as comfortable as was possible. But we did not assist her to commit suicide. She died a natural death as a result of, unfortunately, rampant disease which she experienced in old age.

We debated earlier this week part of another Bill, the Counter-Terrorism and Security Bill, in which something was described as the Privacy and Civil Liberties Board, which was anything but a privacy and civil liberties board—it was a perfectly legitimate suggestion, but it was not what it said on the tin. This Bill empowers people who would otherwise be committing a serious crime to be excused from the criminal consequences of their action. It enables people—apparently doctors under its provisions as they stand—to kill other people deliberately, after consideration, with purpose. Anyone who believes that that is not the case is not taking a realistic look at the Bill. It is a matter for Parliament whether that is a proper thing for Parliament to do—I am not commenting on that at the moment, although I am opposed to it—but it is misleading to the public not to say what the Bill does, both in a provision such as that proposed by the noble Baroness, Lady O’Neill, and in the Title, which we will debate at a later stage, if we get to it.

When we include in the Bill words like those proposed by the noble Baroness and others, we are providing clarity which tells us two things about impact: first, it tells us about the impact on the person who is giving the assistance—as I said, they are committing a serious act which would otherwise be a breach of the law which might well land them in prison; secondly, we are describing the impact on the person who is wishing to die. We are saying that this is not a normal death, even if it is a death which is assisted by what is sometimes called, very clearly, the doctrine of double effect. We are making it clear that that person is dying because they wish to do so.

I am surprised to hear so much opposition from supporters of the Bill to giving within it a clear description of what they intend. If they do not accept this kind of

amendment, then others, including some journalists who have been commenting favourably on the narrow scope of the Bill, may well come to the conclusion that it is indeed just a stalking horse for euthanasia.

Photo of Lord Warner Lord Warner Labour

My Lords, I have been sitting through these debates for 12 years—

Photo of Lord Ashton of Hyde Lord Ashton of Hyde Lord in Waiting (HM Household) (Whip)

We cannot have two people speaking at once. I am sure that the noble Lords can resolve it between them.

Photo of Lord Warner Lord Warner Labour

My Lords, I have been sitting through these debates on assisted dying for some 12 years, sometimes on the Front Bench and sometimes on the Back Benches. I agree that I am getting older and my memory may be getting a little faulty, but I do not recollect in many of those debates people standing up with such skills of advocacy as we have heard this morning about this definitional issue in the wording of the Bill.

We have been talking about legislation which has been labelled assisted dying Bills over the 12 years from the first efforts in this area of my noble friend Lord Joffe. We have had commissions on it which have used the term “assisted dying”. The public have got used to the term “assisted dying”. If we really want to confuse the public at this point, changing the terminology of the Bill is a really good thing to do. We have sat through long public debates over this particular—

Photo of Baroness O'Loan Baroness O'Loan Crossbench 11:00 am, 16th January 2015

I apologise for interrupting the noble Lord, but I just wanted to inquire: why does he think that it would cause confusion to introduce the term assisted suicide rather than assisted dying, when the actual fact is that it is assisted suicide? I just do not understand the logic. People understand suicide and dying as two separate acts.

Photo of Lord Warner Lord Warner Labour

If we are really concerned with what the public understand, it is a bit presumptuous to assume that they have been following these debates for 10 to 12 years but have not understood what we have been talking about in terms of assisted dying. We get a lot of criticism in Westminster—

Photo of Lord Warner Lord Warner Labour

I realise that I have annoyed the noble Lord, but if I could just finish my sentence, it would be helpful, and it would probably speed up the business of the House if I could at least deploy my arguments before people interrupted them.

We have lived with this terminology of assisted dying for some time. I believe that it is patronising to the public to assume that they do not understand it. We are often criticised in Westminster and Whitehall for living in a special bubble. This seems to me a classic example of doing that. I must say that I am a little sceptical about this sudden enthusiasm for precision when we have not had much of that before.

Photo of Lord Elton Lord Elton Conservative

Before the noble Lord sits down, I would pick up his phrase “the Westminster bubble”. That is precisely the problem: we do live in the Westminster bubble. We think that the intellectuals who lead the political papers are the whole public; they are a tiny minority of it. The general public know what suicide is, just as they know what death is. We need to choose what the Bill is about, and a great many of us believe that it is about suicide, not assisted death.

Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Chair, Sub-Committee on Lords' Conduct

Of course the Bill is about assisted suicide, but equally obviously, it is expressly confined to the suicide of those who are already terminally ill—those who are therefore already actually in the process of dying; that is, dying in an altogether more meaningful sense than when one says that everybody is born to die and we are all dying. That is perfectly plain already in the Bill, as the noble Lord, Lord Pannick, said, but at the end of the day, for my part, I am entirely relaxed about this group of amendments. I urge that the House proceeds speedily to the critical issues on which the Bill should stand or fall, so that the public will in all this can be given effect. The public will not give a fig what Title is given to it.

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench

My Lords, I strongly agree with what the noble and learned Lord, Lord Brown of Eaton-under-Heywood, just said. We need to recognise that the amendments are not really about clarity but about conferring on the Bill the stigma which traditionally attaches to suicide. The use of the term suicide breaches the Samaritans’ guidance on language, which states that:

“Inappropriate or careless use of language can perpetuate stigma or sensationalise a death”.

The term suicide is inappropriate when discussing the rational choice of a mentally competent terminally ill patient who is seeking a peaceful and dignified death. The American Psychological Association has stated that:

“It is important to remember that the reasoning on which a terminally ill person [whose judgments are not impaired by mental disorders] bases a decision to end his or her life is fundamentally different from the reasoning a clinically depressed person uses to justify suicide”.

The amendments add nothing to what the debate should be about and distract us from discussing the mechanics of the process, which I think we should get on with.

The Bill would legalise the provision of assistance to a dying competent adult to control the time and manner of their death when that death is imminent and unavoidable. It would not legalise assistance with suicide for those who are not terminally ill, and I think that we should leave the Bill as it stands.

Photo of Lord Howard of Lympne Lord Howard of Lympne Conservative

My Lords, I am sorry to disagree with the noble Lord, Lord Low, but I do so for the following reason. I have previously declared my interest as chairman of Hospice UK, the umbrella organisation for hospices in this country. The hospice movement has no collective view on the Bill, so inevitably I speak for myself, not for the hospice movement, but I know that the point that I am about to make is widely shared within that movement. To put the matter at its lowest, if the Bill becomes law, the challenges which the hospice movement and the people who work in it will face will be much more complicated. It is therefore essential that clarity is achieved.

The noble Lord, Lord Pannick, in his characteristically powerful speech, said to your Lordships that anyone who reads Clause 1 can be in no doubt about what it means, and he read out Clause 1. That would be a very persuasive argument in a court of law, but I fear that most people who will be faced with the terrible decision which the Bill will legalise will not have read Clause 1. That argument does not advance the issues before your Lordships on the amendments. I believe that clarity is essential, and can best be achieved by agreeing the amendment in the name of the noble Baroness.

Photo of Lord Mawhinney Lord Mawhinney Conservative

My Lords, as one who has signed several amendments, I will say that I did so not because of conversations with other noble Lords but because I read the Bill. The more I read, the more I was puzzled by its title. I wish that I had thought of the simile that the noble Baroness, Lady O’Neill, used when she talked about the similarity with truth in advertising. I came to the view that the Bill was about assisting suicide rather than assisted dying. I was stimulated along that thought process by two things. One was the speech of my noble friend Lord Howard at Second Reading when he talked about the work of the hospices. I have recently had some involvement with a hospice in Peterborough. The second was correspondence with doctors who work in the palliative medicine field. Both things created in my mind the vision that the noble Lord, Lord Winston, and the noble and right reverend Lord, Lord Harries of Pentregarth, gave of assisted dying being a palliative feature of making the process more comfortable for the patient.

I am just smart enough never to want to tangle on legal matters with the noble Lord, Lord Pannick. I noted the points that he read to us from the Bill in support of his contention that the Bill is perfectly clear. The second thing that caused me to come to the conclusion that I should put my name to the amendments was Clause 4—so let me read just a little bit to your Lordships. It states:

“The assisting health professional must remain with the person until the person has … self-administered the medicine and died”.

Where I come from, I guess that they would call that suicide. The noble Lord, Lord Brennan, introduced the word “euphemism”, which has been at the heart of a lot of the speeches that we have heard. It has taken the form of clarity in telling the truth. I have to say that in all honesty I do not like the euphemism attached to the wording of the Bill when it comes to this point, and I was happy to add my name to the amendments tabled by the noble Baroness.

Photo of Baroness O'Loan Baroness O'Loan Crossbench

My Lords, by convention I must apologise to the House: I was unable to attend Second Reading as I had had major surgery 10 days before. I have listened to the debates and the element of compassion is very clear in all the Members of your Lordships’ House—but compassion is not enough. The Bill is introducing a significant change that is secured by the terminology that it adopts. That is why it is so important that we support the noble Baroness, Lady O’Neill, and the other noble Lords who put their names to this amendment.

The BMA stated yesterday that skilled and compassionate palliative care with good communication and patient involvement can help many patients’ fears of death. By focusing on assisted dying as a solution to people’s anxieties about end of life care, society is having the wrong debate. If we pass the Bill, people will know that there will be circumstances in which we as a society have decided that we want people to be able to commit suicide with assistance from the medical profession. The Bill provides that people must be assisted to commit suicide in specified circumstances; it does not provide that they must be assisted to die.

I have seen close family members die of motor neurone disease and cancer. I know that they were helped as they came to death by the loving care of good doctors, professional and expert nurses and other medical professionals, and by the appropriate application of palliative care. The Bill is about people who want to take their lives being provided with the wherewithal and being enabled by the medical profession to do so, and it is right that the content of the Bill should reflect that reality. One of our duties as legislators is to try to ensure the greatest possible clarity as we make laws—and it is for that reason that I support the amendment.

Photo of Lord Gordon of Strathblane Lord Gordon of Strathblane Labour

I join the noble Baroness in arguing for greater clarity on this, and I am genuinely surprised at the level of opposition to what seems to me to be a perfectly reasonable, understated amendment. As the noble Lord, Lord Cormack, pointed out earlier, this does not at all affect the principles behind the Bill. There are still powerful arguments for allowing assisted suicide—and, although I am opposed to it, I recognise them. However, let us call it what it is. It is close to misleading to have the title of the Bill as it is the moment, any more than the title of the Homicide Act should be “Assisted Dying (Involuntary)”. No one would seriously describe a terrorist attack as assisted dying—but they have helped people to die, so I suppose you could justify it on that basis.

We try to narrow down a definition. If it is taking someone’s life against their will, we call it homicide or murder. If it is someone taking their own life, we call it suicide, and we have the Suicide Act 1961. It is that Act, not any other, that is amended by the Bill. How anyone can argue that a Bill amending the Suicide Act should not be called the Assisted Suicide Bill genuinely escapes me.

I draw noble Lords’ attention, although I will not quote it at length, to the Second Reading speech of the noble Lord, Lord Hameed, at col. 834, where he drew the very vital distinction between the withdrawal of artificial impediments to death taking its natural course and active intervention. That is a Rubicon that I think the public do not want to cross. I do not want to accuse the promoters of the Bill of any ill faith, but the fact that they choose to position the Bill as though it is on one side of the Rubicon when everyone knows that it is on the other rather gives me cause to think that they recognise that it is a Rubicon that the public are not yet ready to cross.

Photo of Lord Tebbit Lord Tebbit Conservative

I wonder if I could briefly settle this matter. I have just taken the extraordinary step of going to the Library and consulting the Oxford English Dictionary. I take it that most of us would accept the definitions of the Oxford English Dictionary. No one seems to dissent from that, so I will tell the House what it says here:

“suicide, n. The … act of taking one’s own life, self-murder”.

Can we settle the matter now?

Photo of Lord Dobbs Lord Dobbs Conservative 11:15 am, 16th January 2015

My Lords, when I sit in front of my noble friend Lord Tebbit on these Benches, he has the habit of ruffling my hair. Of course, sitting behind him, I do not have that advantage. Instead, I will try to ruffle his argument. He is absolutely right that the definition of suicide, which he called it self-murder, is killing oneself. I simply cannot believe that that is an accurate reflection of what is being proposed. To end one’s life with the assistance of others, including two doctors, perhaps a registered nurse, and a judge, surrounded, hopefully, by those you love, cannot under any circumstances be deemed to be killing oneself.

We have had 2,000 years of Judaeo-Christian culture that has treated suicide as a matter for condemnation, which is why we used to bury them in anonymous graves at crossroads. This is clearly different. To attempt to cast those who take this course of action as suicides is wrong; not only does it not fit into the definitions but it lacks compassion. To term it suicide would only add to the distress of those in this very difficult position.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

Is my noble friend not arguing against himself in arguing that the responsibility has somehow shifted away from the individual concerned?

Photo of Lord Dobbs Lord Dobbs Conservative

Not at all. Of course it is for the individual to make the ultimate decision, but he is not on his own. It is not what is happening right now, when people with these conditions are killing themselves by suffocating themselves with plastic bags. That is suicide; it is not suicide when you are surrounded by all those who are there to give you help in that final matter. There is another point that I would like to make.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour

My Lords, is that not taken into account by the use of the word “assisted”? No one is trying to pretend that this is something without other people there, but the word “assisted” assisted implies that there are other participants around. The noble Lord, in deliberately ignoring one of the words in “assisted suicide”, is in danger, as has been said, of being misleading in what he is saying.

Photo of Lord Dobbs Lord Dobbs Conservative

Far from deliberately ignoring the word, I would like to turn to another point that I think will answer the noble Baroness’s question precisely. If we insist on using the word “suicide”, as required by the amendment, we could end up with entirely unintended and counterproductive consequences. When the Bill becomes law—as I believe eventually it will—if it legalises suicide rather than assisted dying, might that not tend to make all forms of suicide more acceptable? It would become the thin end of the wedge, the slippery slope, by making suicide in general more acceptable. That is not what I want. “Suicide” is the wrong terminology because this is a different matter from the other types of death that come under the determination of suicide.

Photo of Lord Dobbs Lord Dobbs Conservative

May I just finish this sentence? It might help bring about the very outcome that the opponents of the Bill seek to avoid.

Photo of Lord Cormack Lord Cormack Conservative

If I ask my noble friend to give me a cup of hemlock, telling him that I am going to drink it, and he gives it to me and I drink it, have I committed suicide or not?

Photo of Lord Dobbs Lord Dobbs Conservative

The Bill is nothing to do with going off into a corner and getting someone to assist you in a death like that. This is a totally different legal and medical environment. We will all die.

Photo of Lord Winston Lord Winston Labour

I am very grateful to the noble Lord, who has been constantly interrupted, for giving way yet again. Very briefly, does he not accept that many noble Lords have had well written letters from numerous people who are very confused about the nature of what is being proposed? That is one of the problems. Many of them with confused elderly relatives are worried that they are at risk. It is very clear that there needs to be the kind of clarity that the noble Baroness, Lady O’Neill, has talked about.

Photo of Lord Dobbs Lord Dobbs Conservative

That is precisely the sort of clarity that the proponents of the Bill wish to bring about. We are trying to change the law and any change in the law involves in the short term a degree of confusion. But once the Bill has been passed, as I know it will be eventually, I believe that the country will clearly understand what this is about. If we look at the way that this is being operated in other parts of the world, such as Oregon, there is no confusion.

Photo of Lord Mawhinney Lord Mawhinney Conservative

I am grateful to my noble friend but what he does make of the fact that it is the movers of the Bill who have insisted on having “self-administered” in Clause 4, which I read earlier? Does self-administered not mean suicide?

Photo of Lord Dobbs Lord Dobbs Conservative

Self-administered, when surrounded by one’s family and registered nurses, with the assistance of doctors and under the approval of a judge, is not the same situation as the noble Lord suggests. He mentioned earlier that he is usually smart enough not to tangle with other people. I am usually smart enough not to tangle with him on any matter, but on this I disagree with him profoundly.

Please allow me to finish, because I do not want to delay the House. We all know that we have to die. That we do know and, for many of us, it will be the most challenging point of our lives and a time in which we need assistance and support. The deaths covered by the Bill are not only inevitable but imminent. The noble Lord, Lord Carlile, used the phrase “dying because they wish to do so”. It is not dying because they wish to do so but because they are going to die and imminently. To term those inevitable deaths as suicide would make them even more difficult and distressing. I beg the House not to do so.

Photo of The Bishop of Chester The Bishop of Chester Bishop

My Lords, briefly, the debate is now running into the sand a little and I hope that we can move on. I have great sympathy here for the noble Lord, Lord Dobbs. The word “suicide” could be applied to a member of the French resistance who, knowing that he was going to be captured and thinking that he would not be able to resist the Gestapo, took own life—an action I would completely understand—but it could also be applied to a suicide bomber. The word is so multivalent that once we start discussing it, we get into this interminable process. I suggest that we have now heard the arguments and should move on.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

My Lords, I will be brief because I did hear what the right reverend Prelate the Bishop of Chester has just said. I understand that the House will want to move to a conclusion but I was very struck by the remarks made a few moments ago by the noble Lord, Lord Dobbs, about suicide. I would like to return to that point in a moment. However, I support my noble friend Lady O’Neill for three reasons: the first is because of language, the second because of law and the third because of practice.

On the question of language, the noble Lord, Lord Dobbs, being a well known and very accomplished writer, will be familiar with the influential dystopian novel 1984 by George Orwell, who said in it that,

“if thought corrupts language, language can also corrupt thought … It’s a beautiful thing, the destruction of words”.

The words that we use to describe our actions are crucial. There are so many other examples in law of euphemism, the word used earlier by the noble Lord, Lord Brennan, where we have distorted language to disguise the realities of what we are doing. I do not accuse the noble and learned Lord, Lord Falconer, of doing that in his Bill but it is quite clear on page 4, line 11, where Clause 6(2) states:

“In the Suicide Act 1961, after section 2B (course of conduct), insert—”.

So the law will be changed. It is not the Dying Act but the Suicide Act that we are seeking to change.

There is language and law, but there is practice as well. The noble Lord, Lord Dobbs, talked about suicide. At an earlier stage, I mentioned that my father was one of five brothers who served in the Second World War. His eldest brother lost his hearing and became deeply depressed. He was very ill at the end of the war and took his own life. I agree with what the noble Lord said about the stigmatisation, particularly of mental health, and the suicides which can follow from it. We must be acutely aware of that.

In 2000, the World Health Organization issued new guidelines about suicide. It said:

“Suicide is perhaps the most tragic way of ending one’s life ... Every effort should be made to avoid overstatement”.

Interestingly, given the media coverage of these events, it also said:

“Front page headlines are never the ideal location for suicide reports … Suicide should not be depicted as a method of coping with personal problems … Instead, the emphasis should be on mourning the person’s death”.

This House wisely published a Select Committee report on these questions. It stated:

“Dying is not only a personal or individual affair. The death of a person affects the lives of others, often in ways and to an extent which cannot be foreseen”.

The ending or taking of a life is not a trivial question. We must say what we mean. The language must be clear and we must be aware of what the practice will involve. As I have said in this House before, I wish that we placed as much emphasis on helping those who wish to live by providing assisted living as on assisted dying, especially those who are vulnerable and feel at risk as a result of this legislation.

Photo of Lord Popat Lord Popat Lord in Waiting (HM Household) (Whip)

My Lords, may we have the privilege of listening to the noble Baroness, Lady Grey-Thompson?

Photo of Baroness Grey-Thompson Baroness Grey-Thompson Crossbench

Thank you, my Lords. I have two very small amendments in this group, Amendments 161 and 167, which refer to the Suicide Act 1961 (Amendment) Act 2015. They merely serve to strengthen the declaration in relation to commensurate capacity.

On the main subject of this grouping, if I supported the Bill I would use the word dying because it suggests compassion, caring and a peaceful death. If suicide was associated with the Bill it would perhaps trigger some suicide prevention measures, which would increase the safety of the Bill and give comfort to a number of people. If the final action is to be taken by the individual, not by the doctor, surely that is suicide. I offer a challenge to your Lordships’ House on terminology. For years, disabled people were called not normal— they still are. They were called deformed, spastic, cripples and handicapped. There are also nasty words around race and culture. That is not a reason not to change and move on, or not to improve the language that we use. If we are honest about what the Bill is and if we are talking about autonomy, the word to use is suicide.

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat

My Lords, I am well aware that the Committee wishes to move on, so I appeal to its forbearance to allow me to make a couple of remarks. It is 10 years and two days since I lodged formally my proposal in the Scottish Parliament, a precursor to Margo MacDonald’s Bill. My proposal was the Right to Die for the Terminally Ill Bill, and I was well aware at that point of the criticisms of those who opposed it: that I was using emotionally charged language or euphemism, or softer language than it necessarily should be. The context in the proposal referred to physician-assisted suicide. Over the 10 years I have had an interest in this, having lodged a proposal in a legislature with a distinctly different background from the legislation on suicide in England and Wales, I have come to the conclusion that the terminology and definition in this Bill is absolutely correct.

Over the last 10 years, I have been struck that those people who would wish to use the protections under such a Bill—I believe that they are protections—are the least suicidal people you could find. They are people who love life and strive to live as long as they possibly can, but their life is being robbed from them because of a terminal illness. They come to the conclusion that they wish to have control in their remaining days, whereas control is being removed from them. I agree absolutely that language and terminology are important, and that truthfulness is vital. I am slightly upset when it is alleged that some of us who are on a different side in this debate are less truthful than others. Second Reading was a profoundly important moment, when we respected each side in the debate. Having used the different terms myself, over those 10 years I have come to these conclusions.

My fear is that, by these amendments, we will enter into a different debate, which the debate on this grouping has moved into: the wider issue about society and the elements of moral opprobrium that come with that. That is why, on Amendments 25ZA, 45ZA and 45B, I regret that the term “commit suicide” is now entering into the debate. It is no accident that the Samaritans clearly state that this is now inappropriate language because it predates the 1961 English and Welsh legislation. Indeed, in guidance to the media, which I read this morning before coming to your Lordships’ House, the Samaritans categorically state that the media should not use the term “commit suicide” because of some element of moral opprobrium.

It is interesting that the right reverend Prelate the Bishop of Carlisle is taking part in this debate. When I reread the Second Reading debate in your Lordships’ House on the 1961 Bill, I noted that his predecessor as Bishop of Carlisle spoke from the Bishops’ Benches. In that debate, Lord Denning succinctly and clearly showed, as my noble friend Lord Dobbs and others have indicated, what the practice in the Church of England then was for those who had died by suicide. It is interesting to note that there is, I understand, a motion to change canon law on funeral procedures for those in the Church of England who die by suicide. I know it is a live issue.

Let me draw my remarks to a conclusion as I know the Committee wishes to move on. I hope that collectively in society we have over the past 50 years begun to change our approach to suicide. I hope so; two of my family members have indeed died by suicide. I am glad that we have made progress. There is a major difference between someone who is healthy in body but not necessarily in mind feeling that the only recourse for them is to take their own life and die by suicide, and someone who is relishing life, wishes to carry on, wishes to strive for life and is sound of mind but has a terminal illness that is taking that away from them who wishes to have control in their last few days. While I hear the arguments about clarity, truthfulness and avoiding euphemism, there is a very distinct difference. We know the difference in society, the public outside this House know there is a difference, and that is why I hope we will settle on the Title used by the noble and learned Lord, Lord Falconer.

Photo of Lord Cavendish of Furness Lord Cavendish of Furness Conservative

Has the noble Lord not detected in his correspondence, as I have, that being mealy-mouthed about language has been rumbled by the public? In this Bill, they are discovering there is an element of sophistry in the Title.

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat

To some extent, that illustrates the point I was making. The Bill cannot be described as sophistry or as trying to secretly or behind the scenes change the law in a subtle or slightly insidious way. It is being presented to Parliament in the clearest of terms. All the issues were aired during the extensive Second Reading debate, in which every Member was able to take part, where even the definition in the Oxford English Dictionary was presented. All these issues have been aired; the question is about the right balance of terminology that the public, the medical profession and the legal profession understand and the legislation will hold. That is why I hold that this is the correct term for the Bill.

Photo of Lord Tebbit Lord Tebbit Conservative

I wonder why the noble Lord cannot accept the definition of suicide written in the Oxford English Dictionary. We have all accepted it for a very long time. Why does he now not accept it?

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat

This Bill is not redefining suicide; nor are we seeking to redefine suicide; nor is someone who comes down from Scotland every week saying that the legislation in the past in England and Wales was superior or inferior to the approach in Scotland, where suicide has never been criminalised. This is not a debate about that; it is a debate about those coming to the end of a terminal illness and their ability to control their final days. It is limited legislation. Opening it up to this wider aspect and all the associated aspects of wider suicide is not necessary. That is why, over the past 10 years, I have come to this clear conclusion.

Photo of Lord Suri Lord Suri Conservative

My Lords, we have spent enough time on terminology. As my noble friend Lord Tebbit said, the dictionary states that suicide is self-murder. I think it is more than that. It is a crime against the maker and nature, and we should abandon this terminology of suicide.

Photo of Lord Carey of Clifton Lord Carey of Clifton Crossbench

My Lords, I know we all feel very passionately about this matter. I do, intensely. There is a very clear distinction between the two terms, and it lies more in the area of psychology and meaning than anywhere else. In my ministry as a priest and as a bishop, I have dealt with suicidal people and in a number of cases they went on with the clear intention to end their life. I have sat with dying people who, if the law were available, would have ended their life by assisted suicide. There is a clear distinction between the two. I know the rational capacity of some of my friends who wanted to end their intense suffering. They were not suicidal at all; they were clearly determined to find a way for the sake of their loved ones as well as for themselves.

We have had a wonderful debate on this. I think it is time to end it by putting it to the test. I will reject the amendment.

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

My Lords, this has indeed been a passionate and well informed debate. Your Lordships have shown colossal restraint in the debates we have had so far and have shown great respect for the arguments of the opposing side. I hope that will continue to be the way we approach all the amendments in future. There were a few moments of strain during this debate, perhaps understandably.

At this stage, I should perhaps repeat the position of the Government, which is that we remain neutral. These Benches will have a free vote, should the Committee divide on this or any other amendment, and I shall, of course, endeavour to assist the Committee on any matters of law, without compromising that position.

I was asked by the noble Baroness, Lady Campbell, whether the Government have considered a rise in suicide rates as a result of this Bill. I should tell the Committee that we have collected no evidence about the effects this Bill could have on suicide rates, were it to be enacted, but nothing about the Bill in any way compromises the cross-department suicide prevention strategy.

We generally use “assisted dying” as a portmanteau term to cover both assisted suicide and voluntary euthanasia. Ultimately, as many noble Lords have said, it is a matter of tone and message. Your Lordships will decide whether it is appropriate that any of these amendments should be reflected. It is entirely a matter for the Committee.

Photo of Baroness Masham of Ilton Baroness Masham of Ilton Crossbench

Is taking a lethal drug suicide?

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

In this context, it is for the Committee to consider the appropriate term. I decline to go any further.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Constitutional and Deputy Priministerial Issues)

My Lords, this has been a very impressive debate. I completely agree with what the noble Lord, Lord Faulks, said about it being in the right tone.

I shall make three points. First, I acknowledge the speech by my noble friend Lord Cashman, which was of immense power and immense pain. He made the incredibly important point that in the circumstances in which he found himself, he was very clear about the distinction between assisted dying and suicide. I understand the difficulty and the pain that must have been involved in making that speech. All Members of Committee appreciate that.

Secondly, there are two separate groups in this group of amendments. One group is those amendments which wish to change various bits of the wording of the Bill to refer more often to the word “suicide”. Not one of those points has been pursued in detail except for the point made by the noble Lord, Lord Mawhinney, as regards Clause 4, in which he sought to suggest that the use in the draft Bill of the word “self-administration” was in some way euphemistic. It was not. It was used because a vital brick in the Bill is that the person has to do the last act to himself or herself. They have to do it to make clear that it is not euthanasia. That is why that word is there; it is not in any way intended to be euphemistic.

As regards the other matter, the Title of the Bill—which is the key point in the debate—I have thought very carefully about what the Bill should be called. I am always wary when I think to myself, “What will other people think I mean?”. When I hear noble Lords speculating about what the public may think, I am always rather wary; all we can do is to go by the words.

I have used the phrase “assisted dying” for three reasons. First, it is accurate. The purpose of my Bill as drafted is to:

“Enable competent adults who are terminally ill to be provided at their request with specified assistance to end their own life”.

That is the wording of the Long Title. Nobody in this debate has questioned its accuracy. What is the right way to convey a Long Title in a short title? In my view the right and most accurate way is by using the words “assisted dying”. That is why, after very considerable thought and having discussed it with people—not just people in favour but also lawyers—I wished to convey accurately what the position was.

The second reason is that to call the Bill “the Assisted Suicide Bill” would, as a matter of law, give the wrong impression. The words “assisted suicide” would give the impression that assistance could be given in any category of suicide. The third reason was that touched upon by the noble Lord, Lord Purvis, who said that those engaged in helping people as regards suicide are very antipathetic to the words “committing suicide”. There is a moral opprobrium attached to it. For those three reasons I decided that the right wording was “assisted dying”. I urge the Committee to accept the Title as it is.

Photo of Lord Trimble Lord Trimble Conservative

My Lords, my comments would have been most apposite when I tried to intervene earlier. At that point, the noble and learned Lord was quoting from the contribution from my noble friend Lord Mawhinney, who referred to Clause 4. I observe that that clause talks about prescribing,

“medicines for that person to enable that person to end their own life”.

Does he agree with me that the worst euphemism here is the use of the word “medicines”?

Photo of Baroness O'Neill of Bengarve Baroness O'Neill of Bengarve Crossbench

My Lords, we have had a very interesting debate on the first amendment in this group, which is very limited. I observe that the Bill does not alter the law on suicide. Suicide is not a crime. If your Lordships think about it, if suicide is successful, you cannot prosecute.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Constitutional and Deputy Priministerial Issues)

It does alter the law on suicide because it gives a specified defence.

Photo of Baroness O'Neill of Bengarve Baroness O'Neill of Bengarve Crossbench

It alters the law on assisting suicide, and it will be for the Committee, during the discussion of the amendments that lie ahead, to determine whether it alters that law in an effective and secure way. That is not the issue here. The issue in the first amendment is simply: what is the Bill about? I hope that one of these days your Lordships’ House will consider a Bill on assisted suicide. As many noble Lords have said, that involves a much wider category of issues than this particular issue. We should not pre-empt a possible Bill in which we gave expression to compassion and care for the dying with this very specific Bill, which is about something rather different. I understand the reservations of the proponents of the Bill. They feel that this is an unpleasant word to have in the Bill more prominently, but it also represents the particular purpose of the legislation more accurately, and I wish to test the opinion of the Committee.

Division on Amendment 12B

Contents 107; Not-Contents 180. [See col. 1070 for explanation of mistake in voting figures.]

Amendment 12B disagreed.

Division number 1 Assisted Dying Bill [HL] — Committee (2nd Day)

Aye: 104 Members of the House of Lords

No: 177 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Photo of Lord Bichard Lord Bichard Deputy Chairman of Committees 11:57 am, 16th January 2015

In calling Amendment 13 I advise the House that, if the amendment is agreed to, I cannot call Amendment 15 for reasons of pre-emption.

Amendment 13

Moved by Lord Carlile of Berriew

13: Clause 2, page 1, line 13, leave out “a registered medical practitioner” and insert “at least two registered medical practitioners, with one of whom the person has been registered for medical care for at least six months immediately prior to making the declaration at section 1(2)(b) and at least one of whom has diagnosed the terminal illness and treated the person in relation to that terminal illness,”

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Liberal Democrat

My Lords, I beg to move the amendment standing in my name and in the names of the noble Lord, Lord Darzi, and the noble and right reverend Lord, Lord Harries of Pentregarth. In relation to pre-emption, Amendment 13A is part of this group, and will be moved by the noble Baroness, Lady Finlay of Llandaff. It has the effect of amending the term “registered medical practitioners” to “licensed medical practitioners”. I make it clear at the outset that I have no objection whatever to that amendment being made. Indeed, I regard it as a helpful amendment to my amendment, for a reason that I shall now give.

As I understand the situation, a registered medical practitioner could be any medical practitioner who is on the register. I suppose that that is stating the obvious, but that could include, for example, a medical practitioner who is retired but who has chosen for one reason or another to remain on the register. It could include a registered practitioner who has not laid hands on a patient for a very long time. A licensed medical practitioner is one who is shown in the General Medical Council’s relevant documents to hold a particular expertise or expertises that are current. I am sure that the noble Baroness, Lady Finlay, will explain that more expertly than me in a little time.

I regard this group of amendments as extremely important, because they come at the gateway to assistance with suicide and assistance with dying that is provided for in this Bill. The gateway is diagnosis; nobody can go through that gateway unless they have been diagnosed as terminally ill—and what terminally ill means is defined.

I cite table 1 on page 7 of the Oregon’s Death with Dignity Act Annual Report for 2013. Its figures show that the median patient-physician relationship prior to assisted suicide in Oregon in 2013 was 12 weeks. That means that for the 752 people in Oregon recorded as dying using the Death with Dignity Act, half knew their doctor for 12 weeks or less.

I make no complaint about these issues if we are to have this Bill as an Act, but what are the issues that the diagnosing doctor or doctors are to certify themselves as satisfied about? First, it is that the person concerned has an inevitably progressive condition. That is quite a serious medical diagnosis, as is plain, to be determined at the date of the diagnosis. Secondly, it is that it cannot be reversed by treatment. In Clause 2(2), it is stated:

“Treatment which only relieves the symptoms of an inevitably progressive condition temporarily is not to be regarded as treatment which can reverse that condition”.

That is a very complex provision. The medical determination of whether medication or other treatment “only relieves the symptoms” is far from simple. How is one to judge whether it “only relieves the symptoms” or whether it provides some form of remission which goes rather further than only relieving the symptoms?

Then there is the provision in Clause 2(1)(b) that the person,

“is reasonably expected to die within six months”.

There was a discussion on Radio 4 this morning about the meaning of an expectation that someone will die within six months. This to a great extent is not science in the sense that no doctor, save in the most extreme circumstances, can predict when a person will die. Whether a person is potentially on the cusp of being expected to die within or around six months is certainly not something that I understand has ever been scientifically researched in full. Indeed, I recall in a debate some years ago a most compelling and memorable speech given by the noble Baroness, Lady Symons of Vernham Dean, in which she described exactly a circumstance in which it was predicted that someone extremely close to her would die within a very short time, and the person is still alive today. So this is very inexact medical science, and it is asking a great deal of doctors to make that kind of diagnosis.

What are the characteristics that might make that kind of diagnosis reliable and reasonable? I am sorry; I referred to my mother earlier and I am now going to refer to my father, who was a general practitioner in Burnley, Lancashire. One of my treasured possessions, which sits by my desk at home, is his last visiting book for the last year he was in medical practice. I spent much of my very happy childhood being given sweets by dear old ladies whom he visited on his rounds; it was one of the things that made me go on his rounds with him in his Austin A30. I reminded myself of what he used to do by looking at the book this morning. First, he used to visit his patients. I do not believe that anyone in my family has had a house call from their general practitioner in the 21st century, but it used to be very common. As I refreshed my memory this morning, I saw that he used to place his rounds in two columns: one was the calls that had been taken by the surgery—people who were ill and wanted the doctor to call—and the other was what he used to call, perhaps slightly unattractively, his “chronics”. His “chronics” were patients he visited on a periodic or regular basis. Some of them became friends to him and he knew all about their lives. He knew about the progress of their illness and about their domestic circumstances. He knew whether their children cared for them or took any interest in them. He knew whether they were poor or affluent and was able to ensure in the terms of those days that whatever statutory care was available was provided. In other words, he and doctors like him had a relatively intimate knowledge of their patients. When he met them in the streets of that great east Lancashire town, he could never remember who they were but he could always remember exactly what was wrong with them and members of their families. It is a bit like we lawyers remembering cases without necessarily being able to remember the names of those cases.

I know that it is dangerous to be nostalgic about medicine although, if we look at the state of the health service today, perhaps nostalgia is decent evidence, but when we look at the relationships that such doctors have with their patients, it is undoubtedly the case that they have, and had, a body of knowledge on which to base their diagnosis. We are not talking about diagnosing measles. We are not even talking about diagnosing some extremely unpleasant diseases; we are talking about diagnosing if and when someone is going to die.

My view, and that of the noble Lords who have also signed this amendment, and, I hope, of many others, is that nobody should go through the gateway of this Bill unless they have been seen by medical practitioners—I respectfully suggest to your Lordships that it should be no fewer than two—with at least one of them having had relevant care of that patient for at least six months, so that they have been able to build up a knowledge of that patient. It is difficult to imagine somebody with a terminal illness who has not had a relationship of six months with a doctor unless they have been involved in a trauma that has happened very recently.

Photo of Lord Avebury Lord Avebury Liberal Democrat

Would my noble friend consider the case of patients with mesothelioma—perhaps we might hear also from my noble friend Lord Alton on that issue later—a disease that develops rapidly and which is normally fatal in a period of less than 12 months? Is it not probable that a patient who suddenly develops mesothelioma will not have been seen by a doctor for the period that the noble Lord requests?

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Liberal Democrat

My noble friend, for whom I have the utmost admiration and with whom I have worked on many issues, I am afraid misses the point of what I am saying. I know the work that the noble Lord, Lord Alton, who was referred to, has done on mesothelioma. I absolutely applaud that work and I will give way to him in just a second when I have finished this paragraph. What I have in mind is that in a situation like that there will be not only the specialist who may be treating an issue that has arisen recently but a general practitioner who has had that patient on their books for a considerable time, who will have records that they can look at which give them that knowledge, and who will have seen the patient in the past. What I am seeking is exactly the combination between a licensed medical practitioner—I accept that they should be licensed—who has had some experience of dealing with the patient and a specialist who may be treating the symptoms of the particular illness.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

The noble Lord has entirely answered the remark of the noble Lord, Lord Avebury, about mesothelioma. It is indeed predicted that some 60,000 more British people will die of that terrible disease over the next 20 to 30 years. However, the point is that they have general practitioners who care for them, and of course they have specialists who they then go to see as well. In many ways, it reinforces the noble Lord’s point—that having two doctors to examine a patient and be with them—to go through the gateway, as he put it earlier—is the right thing to do, as expressed in the amendment.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Liberal Democrat

I am grateful to the noble Lord, Lord Alton. I see that I have spoken for 12 minutes and want to bring my remarks to a close.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Liberal Democrat

Well, I would bring my remarks to a close, but my admiration for the noble Lord who has just stood up is almost unallayed, and I shall therefore give way.

Photo of Lord Pannick Lord Pannick Crossbench

I am grateful. I just want to ask for clarification. The noble Lord’s Amendment 13, as I understand it, would specify the identity of the doctors who may make the relevant declaration for Clause 2 purposes. However, what if those doctors, for whatever reason, are opposed to the Bill, or Act of Parliament, and do not wish to participate? Should the patient then be prevented from taking advantage of this legislation?

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Liberal Democrat

Uncharacteristically, the noble Lord makes an entirely false point. The first response is that my amendment does not specify any doctor. The second response is that for those who are registered with general practitioners—I guess, the vast majority of the population—there are almost no single-handed practitioners left in this country. Therefore, within the group of general practitioners with whom the patient is registered—the right word is “registered”—for this purpose, there will be a choice of doctors. In any event, the noble Lord knows well that it is intended that there should be a conscience clause placed in this legislation, and there will be doctors who will simply, out of conscience, not certify that patients have the diagnosis required for the gateway.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Liberal Democrat

No, I am not going to give way to the noble Lord; he can speak in a moment. I do not mean to be discourteous, but I know that he is well able to make his own points, and he will be able to make them in as contentious a way as he wishes, and as is sometimes habitual.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Liberal Democrat

I am not giving way to the noble Lord, I am afraid—not on this occasion. He has opportunity to speak and I have now been on my feet for 15 minutes. In closing, my suggestion to your Lordships is that if we are to have this legislation and if the system is to be safe, we must have one in which the gateway is a strong gateway and not merely a flimsy wicket. I beg to move.

Amendment 13A (to Amendment 13)

Moved by Baroness Finlay of Llandaff

13A: Clause 2, line 2, leave out “registered medical practitioners” and insert “licensed medical practitioners who are on the General Practice or specialist register”

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

My Lords, I shall speak briefly to my Amendment 13A but I also have other amendments in this group. If I am procedurally correct, I should address only Amendment 13A at the moment and address the other amendments in the group afterwards. I am looking for confirmation from the Minister that that is correct.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

Thank you. I apologise for requiring clarification on that. I did not want to make things difficult for the Committee.

I tabled Amendment 13A because, as has been alluded to, doctors can be registered with the General Medical Council but not licensed to practise. To be licensed to practise means that one has been revalidated after an annual appraisal, and may maintain one’s clinical professional competencies. However, that is not enough for a matter of this gravity. One does not want decisions to be taken by doctors who perhaps are still in training, or not in a specialty but doing sessions in it, or whatever. The additional requirement should be that they have completed their training and therefore be on the general practice register or the specialist register, which would mean that they are recognised as having completed their specialist training and would be able to apply for a consultant post.

Photo of Baroness Jay of Paddington Baroness Jay of Paddington Labour 12:15 pm, 16th January 2015

I apologise to the noble Baroness and realise that she will speak to the other amendments to which she has put her name. Would it not be much simpler to agree Amendment 15 to which she has also put her name but is primarily in the name of the noble Baroness, Lady Murphy, who unfortunately cannot be here today? That amendment simply does what the noble Baroness, Lady Finlay, has just described by inserting “registered” and “licensed” into the Bill.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

I am most grateful to the noble Baroness for that intervention because it allows me to clarify that I think that such doctors should, in addition, be on the general practice or specialist register for the reasons I have just outlined. Indeed, I was grateful to the noble Baroness, Lady Murphy, for having picked up a point that came in later amendments that I have tabled in relation to the doctors involved.

I shall proceed to speak to the other amendments, however. Clause 2 of the noble and learned Lord’s Bill caters for people who have been told that they have a terminal illness and are expected to die from it in the near future—within six months. Such situations exist; most of us will know of people who have been in this position. However, terminal illness is, I am afraid, a much more complex matter than that. There is a tendency to think that people who are terminally ill are somehow a group distinct from others who are not, but the reality is very different.

Yes, there are people who were apparently healthy but have discovered that they have a malignancy or other condition that seems likely to bring about their death in the not-too-distant future. However, many more people have conditions—for example, multiple sclerosis, Parkinson’s disease or heart disease—that are incurable and life-shortening and which, at some point in the future, can be expected to result in their death. All these conditions would fall easily within the definition of terminal illness, as described in the Bill, which is,

“an inevitably progressive condition which cannot be reversed by treatment”.

But that is not enough. Some conditions are progressive and cannot be reversed by treatment, but the underlying cause may be curable—hence the insertion of “direct”, so the provision would state that as a “direct consequence” of the disease the person is expected to die.

However, there is another aspect to treatment that matters. Some conditions can now be so significantly halted in their progress that the person’s life expectancy lengthens and their quality of life improves dramatically. These are people who at one time appeared to be terminally ill, or even actively dying, but have responded so well to treatment that they no longer fit the definition. I hope that the noble and learned Lord, when he responds, will clarify just how six months will be determined.

The noble and learned Lord will no doubt point out to us that the Bill contains another parameter of terminal illness—namely, that the person seeking assistance with suicide not only has a progressive condition but is reasonably expected to die within six months. It is true that not everyone with a progressive and incurable condition is expected to die in six months, but it is necessary to recognise that the Bill as it stands would bring within its ambit not only people who have been told that they are terminally ill but everyone with moderate-to-severe progressive and chronic illness. After all, how often have noble Lords said, “I would not be surprised if so and so died within the next six months”? Indeed, I regret to say that that has been said within this Chamber about noble Lords at times—and yet, fortunately, they have reappeared on these Benches a long time after those six months. Perhaps they might be described affectionately as a “creaking gate”. It is important to recognise that fact because it has a bearing on the question of prognosis.

Let me illustrate the point with a specific example. A colleague of mine in his late 60s had very brittle type 1 diabetes, episodes of heart failure—the prognosis for which is usually worse than for cancer—and other co-morbidities. All his colleagues thought that he would be dead soon. Over several years, I and others have reasonably expected him to die within a few months. Over 10 years or more, at any point in time, I or another doctor would have stated that he could reasonably be expected to die, but he has not. I have had many patients who I really thought were dying. I have sat the family down and told the patient that I really thought that their life expectancy was in months. However, by our going back and rigorously looking at things again with meticulous attention to detail, they have vastly outlived the prognosis, not only by months, but fortunately often by years, with a good quality of life.

I ask the noble and learned Lord to clarify whether the Bill is designed to include cases where the prognosis might be much longer. In his Second Reading speech, he suggested that the Bill purports not to do that. That is why I have proposed the insertion of the word “direct”: the patient must be expected to die not because he is very old or has multiple co-morbidities but directly from that terminal illness.

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench

Is it not right to remind the House that, if there is a misdiagnosis of that sort and survival continues, people are not obliged to take the final drug? It is just available to them. They can survive.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

I am grateful to the noble Lord for that intervention. If they have been misinformed—it is not the diagnosis of the disease that is wrong but the prognosis—and they then taken the lethal drugs, they are not there to outlive the wrong prognosis.

Photo of Lord Winston Lord Winston Labour

I might be able to assist the noble Baroness’s arguments slightly. Is not the whole House aware of one of the most famous cases, the person accused of the Lockerbie bombing? He was examined by numerous doctors, in particular Karol Sikora, who is probably the leading cancer expert in the country, who, after great consideration, considered that this man had only three months to live. He was therefore allowed to leave the United Kingdom. In fact, I think he survived for either three or four years.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

I am grateful to the noble Lord for that illustration, which is very clear and well known to all Members of the House. It is for that type of reason that I have proposed the removal of the word “reasonably” from Clause 2(1)(b) of the noble and learned Lord’s Bill.

A number of clinicians have tried to predict prognosis—for instance, whether to take the risk of a heart or lung transplant, and when to introduce palliative care in non-cancer services for the frail elderly. However, they have found that they just cannot determine time. Prognostication is reasonably accurate on the population level but, as the noble Lord, Lord Winston, has just illustrated, it is not accurate at an individual level at all. It is no better than tossing a coin. Indeed, different studies have shown that a prognostication expecting someone to live for more than a year is not too awfully wrong. Similarly, expecting somebody to die within a month is more likely to be accurate than inaccurate. However, in the interval in between you honestly could toss a coin on it. It is for that reason that I suggested that, if the prognosis in the Bill really is to deal with those people who are distressed during their dying phase, the prognosis section should be shortened to six weeks.

There are other aspects to prognostication that I will point out to the noble and learned Lord, Lord Falconer. The national clinical director for end-of-life care told the commission that he chaired that predicting the course of a terminal illness is “fraught with difficulty”. In 2004 the RCGP made the same point to the Select Committee chaired by the noble and learned Lord, Lord Mackay:

“It is possible to give reasonably accurate prognoses of death within minutes, hours or a few days. When this stretches to months then the scope for error can extend into years”.

The Royal College of Physicians, giving similar evidence, said that,

“prognosticating may be better when somebody is within the last two or three weeks of their life … when they are six or eight months away from it, it is actually pretty desperately hopeless as an accurate factor”.

More recently, we have seen in the report from the inquiry into the Liverpool care pathway, chaired by the noble Baroness, Lady Neuberger, how prognoses of death within 48 hours have sometimes turned out to be wrong. The report called for further research into improving the accuracy of prognosis within the last weeks to days of life.

Yet, in the face of all this evidence, we are being asked to consider legalising assisted suicide or assisted dying for people with a prognosis of six months. The only conceivable explanation is that that is what Oregon’s assisted suicide law says. However, Oregon’s law has been shown to be fallible in the matter of prognosis. Oregon’s own data show that the time from the first request to death by whatever cause, whether through physician-assisted suicide or natural causes, ranges from 15 to 1,009 days, which is two years and nine months. Washington’s data show that, among those being given a prescription for lethal drugs and therefore expected to die within six months, the range was three to 150 weeks. I note that, in every year of that legislation since it has been passed, patients have lived well beyond 24 weeks or six months. The percentage ranges from 5% to 20% of a request for death.

The plain fact is that prognosis of “terminally ill” is highly unreliable over a range of six months. The DS 1500 has been used as a way to allow patients to access benefits rapidly, without having to go through assessment hoops. However, as those who have filled them out know only too often, it is only a guesstimate. Very often, patients vastly outlive the prognosis. We have had to have difficult conversations about how they should now go through the complete assessments. I tabled a Question to ask whether the Department for Work and Pensions collected data on the DS 1500. Unfortunately, it does not. It would be interesting to know for how many months that benefit had been drawn.

The plain fact is that this is unreliable. As a practitioner in the field, I can count the number of terminally ill people whom I have treated. I have not tallied them up among the thousands that I have looked after, but I could bore this House for weeks with the number of clinical stories of people who were expected to die within six months and who stayed alive for much longer. Those are the reasons behind these amendments. I hope that those who are arguing sincerely that the Bill aims to try to improve the dying process in those last days and weeks of life will seriously consider that they are asking people to make a prediction on which there really is not a scientifically accurate basis.

Photo of Baroness Meacher Baroness Meacher Crossbench

The noble Baroness placed a great deal of emphasis on accuracy. Those points completely fail to take account of the fact that we all have a great will to live. Just because the individual finally has control and some autonomy does not mean that they will rush out to try to take some pills. I feel that this is a completely misguided set of arguments. The most important thing about the Oregon law, which has been in place for 17 years and works extremely effectively, is precisely that some people live for three years. They do not take their lives; they live for three years until life becomes unbearable. It is only at that point that they take the pills or whatever it is. We have to be very careful not to be misled, albeit one can come back with arguments that most doctors exaggerate the length of time that they expect people to live. Even that is not the point.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

When we legislate we need to know that there is accuracy attached to the terms. If we are asking doctors to make a declaration or statement of prognosis, they must at least know that there is some scientific basis behind it. In making a decision, there are three fundamental issues; first, the person must have accurate information; secondly, they must have the mental capacity to make that decision; and, thirdly, it should be voluntary and free of coercion. If you make the decision to end your life because you believe that what lies ahead in the next weeks and months is so terrible but, in reality, you might have improved dramatically and lived for years if you had had the care you needed, then I would say that you are not being supplied with accurate information and that it is therefore not a valid decision.

Photo of Lord Harries of Pentregarth Lord Harries of Pentregarth Crossbench 12:30 pm, 16th January 2015

My Lords, I have added my name in support of the amendment of the noble Lord, Lord Carlile, but I also support the other amendments in this group. I do not intend to go over the reasons already stated so fluently by both noble Lords; I just want to emphasise the point of this whole range of amendments, which is quite simply to make this Bill much safer. If it is eventually passed, with these amendments people will have much more confidence in it than they have as it stands at present.

As we know, a great number of doctors—probably the majority—are opposed to any Bill such as this and therefore we are bound to get a situation where people who are sympathetic to what is proposed will look round for a doctor who shares their point of view. Clearly, we need to avoid that. Therefore, instead of just one doctor, we need two doctors, as the amendment says. One of the doctors needs to know the patient very well and needs to be not just registered if retired but, as the noble Baroness, Lady Finlay, said, currently licensed. These kinds of safeguards will ensure that the Bill, if eventually passed, has the confidence of the public.

There is also the very difficult question of diagnosis. I am a member of the review body of the noble Baroness, Lady Neuberger—the Liverpool care pathway. It has certainly been brought home to us that diagnosing a person’s death is a very inexact science, and indeed we are calling for more research on this.

Perhaps, on this very subject, the Committee will allow a brief moment of levity in relation to the remarks of the noble Lord, Lord Winston, on the Lockerbie bomber. He had three months to live but, as someone said, it was three months in Scotland—with due apologies to all Scottish noble Lords here. I apologise for levity on what is a very serious matter. However, I very much hope that the supporters of the Bill will accept the majority of the amendments in this group, as they will undoubtedly give the general public more confidence in it.

Photo of Lord Cormack Lord Cormack Conservative

My Lords, if we are to have this Bill, it is very important, as the noble and right reverend Lord said, that there should be confidence in it. I just want to address a few brief remarks to the amendment of my noble friend Lord Carlile of Berriew, to which the noble and right reverend Lord is also a signatory.

I remember as a young Member of Parliament in Staffordshire talking to a rural general practitioner who had been there for many years. He made the point to me—I have quoted it before—that a doctor can only truly know his patient if he knows him in his home as well as in the surgery. I know that things have changed a lot since then but I treasure my relationship with my general practitioner—it is one of the most important relationships that I have. I like to feel that I can talk uninhibitedly to him, and indeed I can.

It is very important that we avoid falling into a trap. Because of the widespread reluctance among the medical profession to support the Bill, we could fall into the trap of certain doctors being available for hire. That is the last thing that the noble and learned Lord, Lord Falconer, would want. I have never at any stage doubted for a single second his utter sincerity and his honourable motives. That should be taken as read throughout the House, and I believe that it is. However, where a large number of medical practitioners feel, for the best reasons of conscience, that they cannot sign up to this Bill, there will be a danger—I put it no higher than that but one has seen it in the field of abortion—that some doctors will in effect be for hire. That has to be guarded against and one of the best ways of doing so is to ensure that there is an amendment similar to that moved by my noble friend. I hope that, when he comes to respond, the noble and learned Lord, Lord Falconer, will accept that.

I have grave reservations about this Bill. I do not want the Bill but I understand why many do. Therefore, if it, or a Bill like it in the next Parliament, is to go on to the statute book, the safeguards must be real, comprehensive and absolute. If a doctor is to sign a document, that should happen only after lengthy conversations with the patient concerned—after a real discussion. I would like to feel that during that discussion the doctor, whatever his or her personal views, can play devil’s advocate and point out all aspects of this ultimate decision that the patient is on the verge of making. However, that can happen only if there is a real knowledge of the patient and a proper relationship between the doctor and the patient. Six months is a short enough time. I have been registered with my general practitioner for over 30 years. Many noble Lords will have had similar long relationships and others will have had shorter ones. But before you talk to a doctor you feel the need to know him, and he or she needs to know you. The amendment moved by my noble friend is modest but it helps to provide a safeguard which, if a Bill such as this is to go on to the statute book, we would all like to feel is in place.

Photo of Baroness Garden of Frognal Baroness Garden of Frognal Lords Spokesperson (Women & Equalities), Baroness in Waiting (HM Household) (Whip)

My Lords, the noble Baronesses, Lady Campbell, Lady Grey-Thompson and Lady Brinton, have been trying to speak for a while. I wonder if your Lordships would feel it appropriate if we heard from them now.

Noble Lords:

Hear, hear.

Photo of Baroness Campbell of Surbiton Baroness Campbell of Surbiton Crossbench

I thank the Minister. My Lords, there are many reasons why I strongly oppose the Bill and why I have spoken against it in the past. But one of the most important reasons why I oppose the Bill is the definition of terminal illness and how many months, weeks or years we have to live. The definition in the Bill gives rise to uncertainty and is therefore terribly open to misinterpretation and abuse. Proponents of the Bill claim that “disabled” and “terminally ill” are distinct from one another. We are told that disabled people can be assured that the Bill is not intended to apply to them. I am not reassured, and I beg the patience of the House while I explain my reasons.

I have personally worked for more than 20 years with very severely disabled people with life-threatening conditions, great numbers of them with the definition of terminal illness. I know about terminal illness—believe me, I know. I know personally and professionally. That is why I wanted to give noble Lords my reasons today, and to take my time to do this, because I feel that it is one of the most important parts of the Bill that we must make safe. I know that the noble and learned Lord, Lord Falconer, would agree with me that we must make this safe for people who may die, who may not otherwise, because of this definition and because of the number of weeks that we are supposed to live or die. That is why I support the noble Baroness, Lady Finlay, and the noble Lord, Lord Carlile, on a reduction of the time limits.

I am fearful of the Bill not least because terminal illness is defined as an

“inevitably progressive condition which cannot be reversed by treatment”.

That definition could equally apply to many disabilities, my own included. It reinforces confusion between terminal illness and disability. The fear is that disabled people with progressive conditions will fall within the scope of the Bill. The clause on terminal illness does nothing to dispel that fear.

I remind your Lordships that not a single organisation of disabled or terminally ill people is actively campaigning for this legislation. We need to ask ourselves why. Why will they not campaign for a Bill that gives them autonomy to choose the time when they are to die? On the contrary, growing numbers of national charities are coming out to campaign against it. For example, Scope and Disability Rights UK, which have thousands of members who have progressive conditions, are also joining grass-roots networks of disabled people such as Not Dead Yet UK and the Disabled People’s Network. They all agree that it is impossible to create clear blue water between disability and terminal illness and as regards how many months until one might die. However, the Bill is before us now, and I have to accept that I need to do what I can to limit the harm that it would cause to terminally ill and disabled people were it to be enacted. That is why I support the amendment moved by the noble Baroness, Lady Finlay, and any other amendment that would introduce a shorter time limit as a safeguard to the central part of the Bill.

The definition of terminal illness in the Bill starts from:

“an inevitably progressive condition which cannot be reversed by treatment (a ‘terminal illness’)”, from which the person,

“is reasonably expected to die within six months”.

The Bill adds the caveat:

“Treatment which only relieves the symptoms of an inevitably progressive condition temporarily is not to be regarded as treatment which can reverse that condition”.

I therefore looked at who the Bill might encompass. The brain, eyes, lungs, kidneys, pancreas, joints and nerves can all be subject to “inevitably progressive” conditions deteriorating at widely differing rates. Various forms of cancer, heart disease and neurological conditions can fit the criteria for “inevitably progressive” at some stages.

Children and young people are born and are surviving with a variety of life-limiting conditions for which the prognosis is very uncertain. Overall, significant numbers of children and adults fall within categories to which the definition,

“an inevitably progressive condition which cannot be reversed by treatment”, is applicable. I found that it is only the fact that most are not,

“reasonably expected to die within six months”, that keeps them outside the scope of the Bill. That is no protection at all, and I will explain why.

It would take only a chest infection or a small change in my muscle capacity for me to be put at risk. Throughout these debates we have heard from the noble Baroness, Lady Finlay, and from other noble Lords in the medical profession who are far more qualified than I, how prognosis is unreliable and that individual life expectancy is virtually impossible to predict with any accuracy. The catch-all of six months sends the invidious message that once you are down, you are on your way out, that once death is on the agenda of life, it outweighs every other consideration. For any newly diagnosed individual, it allows the early seeds of fear and doubt to be sown, perhaps by the individual, perhaps by family and friends, or perhaps by both. Words of hope and encouragement will have to compete against advice and expectation to shop around for a doctor willing to give a prognosis of six months or less. It invites everyone involved in the care and support of the individual to do less than their best. It is hard to believe in the value of life for a person who has been deprived of that belief themselves.

As someone who has come close to death on several occasions during my childhood and adult life, I know how essential it is to have a positive outlook. I am only too aware that there are times, sometimes long periods of time, when one grows weary and one’s spirits are low. One believes that one is going to die. That can be for weeks or even months. Has no one heard of fluctuation? When and if you get through that period and if, as in my case, a new ventilation system is suddenly developed, you get better again. Perhaps you have a week, a month or, as in my case, you have another two years. However, during the weary low period when everyone expects that this is the time when you are going to die, you could easily take advantage of an assisted dying exit.

Other disabled and terminally ill people have spoken of enduring such periods for years before their spirits finally lift. People felt that they were going to die. They do not take out pensions. I can tell noble Lords that I do not have a pension. Why is that? It is because everyone was telling me that I was going to die. Please remember that when I want a free lunch.

What pulls me and others through those periods—there are hundreds of others; do not believe that this Bill is for the few because I know of many who would fit these criteria—is the unfailing support, encouragement, love and understanding of those around us, both professionals and friends. It is seeing their efforts and determination to make one feel better, to do what they can—such as invent another ventilator—whatever it takes and whatever the prognosis, that lifts one out of oneself step by step. It makes one want to participate in a shared endeavour and make the best of whatever time is left. Hope is a great healer. When we cannot heal, it is at least a balm and a great comfort.

I am fortunate in knowing that those around me will always do their best for me. They include amazing doctors and nurses who have treated and cared for me. I know that their focus will always be on making my life better, not on providing me with another option. I know that they will always be searching for ways to improve the treatments and the technology to care for me, and I am grateful that I am here because of them. Each time my body weakens, they find another aid, adaptation or medicine which might compensate. Metaphorically, every time I approach life’s finishing line, those doctors and nurses do their damnedest to push it further away again. The ventilator I am using now is one example of that. It is this newest invention in ventilation technique that is preventing me having a tracheostomy. I cannot have a tracheostomy because, if I do, I will never speak again. Can noble Lords really imagine that and would they want it? Well, perhaps some might.

Others are not so fortunate in the medical care that they receive, in the support that they get from their families and in the social care available to them to help them live with serious illness and disability. We need to remember that, especially now, when economic austerity has diminished the quality of care and support that one can expect. We should avoid the unthinking assumptions that the lives that we live are the lives that others live. Many seriously ill people’s experience of life is not about exercising autonomous control; it is more about being done to than doing. The Bill has all the makings of a law for the strong at the expense of the weak.

Last weekend, I went to see the film “The Theory of Everything”, a very engaging and honest biography of Professor Hawking and his contribution to theoretical physics. The film closes with Stephen speaking to a group of the most distinguished scientists. He had outlived his sell-by date by 52 years. He was often in the state of terminal progression, but he is still here. In fact, we are both in competition to see who lives the longest. I was deeply moved when he said, “However difficult life may seem, there is always something that someone can do and succeed at”. I have lived my life according to that belief, which is why I am here with your Lordships today. We do not walk that path alone; it requires everyone’s optimism and belief in us.

The amendment in the name of the noble Baroness, Lady Finlay, and the later one in the name of the noble Lord, Lord Carlile, go some way to off-setting this very pessimistic Bill. The proponents of the Bill have always argued that their intention is for it to apply to only a very small number of people. That intention will be far better realised if prognosis is set with a much smaller time limit of weeks or, okay, maybe months, but not six months. I urge your Lordships to support this amendment and others of its kind

Photo of Baroness Grey-Thompson Baroness Grey-Thompson Crossbench 12:45 pm, 16th January 2015

My Lords, I wish to raise two brief points. The first is on the rate of diagnostic error, which has already been mentioned. The Royal College of Pathologists gave evidence to the Select Committee looking at the Bill of the noble Lord, Lord Joffe, which heard that diagnostic errors are common. The report says:

“The Royal College of Pathologists drew attention to ‘a 30% error rate in the medically-certified cause of death’, with ‘significant errors (i.e. misdiagnosis of a terminal illness resulting in inappropriate treatment) in about 5% of cases’”.

Secondly, I wish to raise a point of clarification with my noble friend Lady Meacher. She does not appear to be in her place, but it is a question that applies probably equally to the noble and learned Lord, Lord Falconer. My noble friend talked about autonomy at the point that somebody chooses the right to end their own life. To me, that suggests that the drugs or medication would be in the person’s possession and in their home, as it is in Oregon. I should like some clarification on whether the Bill is suggesting that the person would have the drugs available to them in their home. For me, it is important to understand the timeline of how the decision-making process will take place and whether there would be a tiered approach. An awful lot of people who write to me assume that, if the Bill becomes law and they are able to choose the time that they end their life, it will be in their own home and with their friends and family around them, not in a medical facility, and that they will not have to go through a huge series of hoops in those final moments. It is really important for me to understand whether these drugs that will kill people will be in a person’s possession in their home.

Photo of Baroness Brinton Baroness Brinton Party Chair, Liberal Democrats

My Lords, the noble Baroness, Lady Campbell, has spoken movingly from her own experience and, indeed, her expertise. I am sure I am not alone in respecting her greatly for that and for ensuring that this House hears the views of people in the disabled community who are worried that this is a thin end of a wedge.

I suffer from a life-limiting illness. In most cases, it is not terminal but it is degenerative if it is not got under control. To answer one of the points raised by the noble Baroness, Lady Campbell, I, too, have the risk of catching a very serious infection because my immune system is compromised by the medication I am on. I would not expect anything short-term such as that to be considered by my medical practitioners—or even by myself, as happened to me at Christmas—as being part of the longer-term degeneration of a terminal condition. It would be worrying if we believed that the Bill was giving that thought some traction. The timescale for approval reflection within the Bill means that in the case of a temporary or short-term illness, any medical practitioner would be likely to advise someone that they should not be making a decision at that time because it would not necessarily mean that the rapid progress of the disease itself was an issue.

I want to make some very specific points on some of the amendments in this group. First, I am concerned about the impracticality of Amendment 13. Often when someone discovers that they are in the terminal stages of an illness, they will move to be with family; they are therefore likely to move GP. My mother, who died just before Christmas, had three GPs in the last stage of her life. She was at home. She then moved into a nursing home. She then had to move to another nursing home for more supportive care. She might have had four GPs had she moved to a hospice. Should Amendment 13 go through, I am concerned that that would have ruled her out from being able to make a decision, should she have desired it. I understand the intentions of the noble Lord, Lord Carlile, in raising this, but the practicalities for many at the end of their lives mean that I think it is unworkable.

On Amendment 20, I hear everything that the noble Baroness, Lady Finlay, says but my counter to that is that a patient will listen to advice and a doctor will give them a wide range of advice on the likely progression of their disease and, indeed, any comorbidities. This is also moving into the area of Amendment 21. The evidence of where assisted dying happens, particularly in America, is that the time between somebody starting to get the initial advice and going through the process and, having concluded that, then deciding that the time is right to take their life is the exact reason why we need six months and not six weeks. A patient should reflect and make sure that what they are doing is right for them and at the right time. Often people who support the principle of assisted dying are worried about those last few weeks and want to have the safety net of the decision having been made by the professionals in their back pocket, so to speak, so that should their life become intolerable they do not have to start the process at that point. That is why either three months or six weeks will mean that a patient will not get the timescale they need to consider appropriately with their family, friends and medical practitioner whether this is the right thing for them.

I am perplexed by Amendments 22 and 45, which imply that treatment that delays the progression of a terminal condition would be considered an available treatment for a dying person and would therefore exclude them from having an assisted death if they rejected such a treatment. If I have read this right, the noble Baroness, Lady Finlay, is arguing that it changes the fundamental right of a patient to refuse treatment because that treatment might increase the length of their life, even if the quality of that life were to be intolerable. For example, one reason that many people say that they would like assisted dying is that they do not want to go through another round of chemotherapy on a new drug, perhaps for the fourth or fifth time, and live with the very difficult consequences of that treatment. That is exactly what the Bill is about: patients coming to an informed decision about when they wish to end their life, even if another treatment is available, when medical practitioners have said that their condition is terminal.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench 1:00 pm, 16th January 2015

Before the noble Baroness finishes, will she acknowledge that, quite often, when patients do not undergo further intervention and further treatments they dramatically improve? Indeed, a very good study from America showed that where people had early palliative care, not only was their quality of life better but they lived longer. They were having fewer interventions, not more. The difficulty with all this is that conditions fluctuate. Patients at one point in time cannot believe that they could improve. It is often stated by patients, when their symptoms and their distress are under control, “I never believed I could feel this well again”. When they are in that trough, they are of course inclined to believe that it will go on for ever and that they will go on going downhill and therefore want to curtail their lives.

Photo of Baroness Brinton Baroness Brinton Party Chair, Liberal Democrats

I accept the noble Baroness’s premise that it is vital for medical practitioners to set things out. As I have said, the counterargument to that is that data from Oregon and some other states in America show that people do not make the decision and implement it immediately. There is always a timescale, because I believe that, intrinsically, most people really hope that things will improve.

When the measure has been used in America, it has usually been because there has been such a downturn, when medical practitioners have said to the patient that they cannot help them further. I understand that there will be some people for whom they are seriously concerned and may want to turn to it, but I would also think that a medical practitioner would ask them whether they are depressed at that particular moment and whether it is the right time to make that decision. This Bill allows the practitioner to say, “I don’t think you’re ready for that decision at this particular time”.

I want to say why I believe that the amendment in the name of the noble Baroness, Lady Finlay, is a tripwire. I have been on a series of drugs for my particular condition. My local clinical commissioning group insisted that I went on a drug knowing that it would not work particularly well for me, but would not allow me to have treatment afterwards if I did not have that drug. For six months, I had the drug and it is one of the reasons why I am in a wheelchair, because my condition deteriorated. My worry about the amendment is that it is such a tripwire and could be used to cause real distress to people who are quite clear that they do not want further treatment. To use that to prevent them getting any other treatment or making their own decision seems intrinsically wrong.

Photo of Lord Warner Lord Warner Labour

My Lords, I want to pursue the line of argument that the noble Baroness, Lady Brinton, has started. I agree with the noble Lord, Lord Carlile, that this is an important group of amendments. The noble Baroness has raised the issues of practicality and, possibly, unexpected consequences of some of the amendments.

I want to reinforce the point about the impracticability of Amendment 13. It fails to reflect the fact that in many cases of terminal illness a person will move from the place where the illness was diagnosed and the care of their consultant and GP to somewhere else. We have a National Health Service. You still get treatment if you move from A to B; medical records pass from A to B most of the time, reasonably successfully. The care of that person will be transferred to another GP and another medical practitioner. They may well not have had care of that person for six months. It may simply be impossible to operate Amendment 13 in the case of people who are terminally ill. We need to reflect on the practicality of that argument. I do not believe that the noble Lord expected that consequence from his amendments. That was the point that I was going to ask him about if I had been able to intervene a little earlier. I am happy to give way to the noble Lord.

Photo of Lord Tebbit Lord Tebbit Conservative

I am grateful to the noble Lord for giving way, but does he understand the concern that exists among many of us who saw that there were doctors who would certify that a woman’s health was at risk should her pregnancy continue who had never seen the woman concerned, who were pre-signing packs of such certificates to be used by their friends in the abortion business? How do we deal with that matter?

Photo of Lord Warner Lord Warner Labour

The amendments would not deal with that matter. They would in many cases make it impossible for a terminally ill person who wanted to explore the issue of assisted dying to meet the requirements to have those conversations—let alone anything else—with a medical practitioner who was responsible for their care when they had moved house. I am not trying to make a wider point. I am on the narrow issue of the words in the amendments. I am with the noble Baroness, Lady Brinton, all the way on the impracticability of Amendment 13.

I move on to Amendments 20, 21 and 22 in this group. No one who supports the Bill is arguing that we expect doctors to have the gift of foresight about the length of time that someone will live for. I point out that the Bill uses a period which is commonly used in many other areas of public policy, not least in the area of welfare. If noble Lords read Section 82 of the Welfare Reform Act 2012, they will find a definition of terminal illness that is being applied by doctors day in and day out up and down the country—for those who are nerdy in these matters, it is on form DS 1500—to secure improvements in benefits because the person is terminally ill. Parliament, in the past couple of years, has passed legislation which sets out the terms of terminal illness, and doctors up and down the country are applying that legislation for the benefit of people with disabilities. The idea that the Bill is doing something different and novel in this area is, frankly, not true.

I also ask noble Lords to read the GMC guidance for doctors on issues such as end-of-life care and consent. In its admirable guidance, it is clear that there is a reasonable expectation that when a doctor thinks that someone may be terminally ill and may die before the end of 12 months, they may begin conversations with people. It is not unethical, it is not bad medical practice, where a doctor believes that someone may be terminally ill, not to do anything dramatic, but to begin to have a conversation with that person and their family. If you make it a shorter time for the person to have such conversations—six weeks, for example—all you are doing is putting enormous pressure on somebody who has had to come to terms with some catastrophic information about their life and circumstances. It would be inhumane, unfair and lacking in compassion to shorten the timescale within which doctors and their patients could have the conversations that they need to have.

I believe that the balance is struck right with the six-month term. In the United States, where assisted dying is legal, the bar has been set at six months and there is strong evidence to demonstrate that the model there works effectively and safely. Some very interesting work was done by a surgeon and public health researcher, Atul Gawande, who explains in his recent book Being Mortal: Medicine and What Matters in the End that survival statistics form a bell-shaped curve in which there are a small number of people who survive much longer than expected—the tail of the curve. He says:

“We have failed to prepare for the outcome that’s vastly more probable … we’ve built our medical system and culture around the long tail”, of small numbers of cases. His view is supported by a number of pieces of research. I shall quote one that shows that fewer than one in four patients outlived the prognosis when their clinicians predicted survival for six months or less. In the great majority of cases, you could argue that the doctors have been optimistic about survivability rather than the other way around. Therefore, I think that my noble friend has struck the right balance in this area.

I shall mention one other bit of GMC advice, which relates to Amendment 20. The GMC is very clear to doctors, beyond doubt or peradventure, about the issue of patient consent. In my view, the amendment would be a breach of that advice. The advice is clear that even if the doctor disagrees with the patient’s decision their right to refuse a course of treatment is absolute and doctors are expected to respect that right. Following the GMC’s advice, I suggest that putting another impediment on doctors, as that amendment would, would be unfair to doctors.

Photo of Lord Berkeley of Knighton Lord Berkeley of Knighton Crossbench

My Lords, unlike the noble Lord, Lord Cormack, I have always welcomed and embraced the Bill, or certainly one very like it. One of the great qualities of your Lordships’ House is that, especially on an occasion like this, we listen to the arguments and are prepared to mould what we are trying to achieve. When I listened to Amendment 13 from the noble Lord, Lord Carlile, and especially Amendment 13A from the noble Baroness, Lady Finlay, I felt that they were reasonable. However, I have now heard the noble Baroness, Lady Brinton, and the noble Lord, Lord Warner, very eloquently saying why they are very worried about this issue so I am still slightly up in the air about it, although I think, with regard to Amendment 13A, that it is essential that these are “licensed” medical practitioners. The noble and learned Lord, Lord Falconer, is trying as hard as he can to go with the House and to take on things like this.

My point, and I shall make it extremely briefly, is about the six months’ terminal illness. I think that this is right, and I shall tell the House why. I have had lots of letters, as have many noble Lords, and there is something that they nearly all say. I had one this morning from someone who is 80, saying, “I don’t have a terminal disease but I do want to feel that I would have the option, if I became really ill, to talk this over with my doctor and work out a way of assuaging great pain and causing distress through that pain to my family. It might just be that I would talk to my doctor about having opiates that might repress the respiratory system”. Is that assisted suicide? I do not know. I certainly think that it is an option; frankly, very few doctors that I know deny that it has happened in their lives. They have treated people, especially in country practices where, as the noble Lord, Lord Carlile, has illustrated, they have known the patient for many years, even decades, and they ease them out of this life into the next one. It seems to me that this is the luxury that most human beings want to be afforded. I think that that is what the noble and learned Lord is trying to achieve, and on that basis I very strongly support him.

Photo of Lord Harries of Pentregarth Lord Harries of Pentregarth Crossbench

Would the noble Lord like to clarify what he means by that very ambiguous phrase about doctors easing patients out of this life? Does he mean the administration of pain-killing drugs, which might have the side-effect of slightly shortening life, or does he mean doctors deliberately administering an overdose in order to kill a person? Perhaps he could clarify what he means because he is making quite a bald claim about doctors’ practice.

Photo of Lord Berkeley of Knighton Lord Berkeley of Knighton Crossbench 1:15 pm, 16th January 2015

As in so many things, there is a line here which is difficult to draw. However, doctors in this House have privately told me of occasions when they have treated people with appalling pain in a way that they knew was likely to finish their life. It is very hard to put it more precisely. They would not guarantee that it did because, as we have heard from the medical profession, nobody can guarantee anything. No doctor here can tell us when we are going to die; they can say only, “This is the likelihood”, so I cannot give the noble and right reverend Lord a definitive answer. Everybody keeps saying that we must have clarity but there is no clarity about dying or pain relief. That is the whole point of this. What I can say, which is germane to the argument at the moment, is that we need at least six months to be able to discuss these things calmly and give people the feeling that they can plan ahead. In fact, that should rule out the bronchial infections we have been talking about because they would not be considered part of the terminal disease. It is a question of planning and so many people have said, “I want this option at the end of my life”. Who are we to deny it?

Photo of Lord Blair of Boughton Lord Blair of Boughton Crossbench

My Lords, I declare an interest in that I was a member of the Commission on Assisted Dying, chaired by the noble and learned Lord, Lord Falconer. I want to respond to Amendments 17 and 21 by mentioning specifically that at the conclusion of the two years in which we heard evidence, our initial position was that this prognosis period should be 12 months. We based that on the GMC guidance to which the noble Lord, Lord Warner, has just referred. It was based on the time at which a doctor could begin to discuss end-of-life care with his or her patient. We decided to reduce the period to six months because we thought that this decision was even more dramatic than the 12-month position of possibly dying. Now that we are into six months, we are much closer.

With all respect, it seems that the noble Baroness, Lady Meacher, has made the right point in relation to these amendments. We are looking at this from the wrong end. As the noble Lord, Lord Berkeley, has just said, there is no certainty but this is aimed at those individuals who themselves believe, with mental capacity, that what lies ahead of them in suffering and indignity is unbearable to them. It may not be unbearable to somebody else but, for them, it is unbearable and they want to have a discussion. We have been told about people who are going to recover because a new treatment will appear. These are people of mental capacity who are making clear judgments. Is it very likely that those people, if they start to feel better, will say, “No, I still want to die because I decided that I wanted to a little while ago although I now feel better”? That is a completely nonsensical position.

There is one provision of this Bill that people do not seem to notice. In Oregon, when the decision is made, the medicine is handed to the patient and he or she wanders off and puts it in the cupboard. That is not the case in the Bill. The medicine, such as it is, will be in a pharmacy. It will not be released to the patient until everybody is absolutely clear that all the processes have been gone through and that the person still has a settled determination to end their own life. It will then be released to a medical practitioner or nurse and if that patient does not take it within 24 hours, it is not left in the house. It goes back to the pharmacy and the discussion starts again. These are reasonable provisions. There is the idea that we should tie it to the uncertainty of a medical prognosis. We have to have some limits but, after two years of deliberation and knowing the GMC guidelines, six months struck those of us in the commission as a reasonable compromise. I recommend it to the House.

Photo of The Bishop of Carlisle The Bishop of Carlisle Bishop

My Lords, very briefly, I support Amendment 13, proposed by the noble Lord, Lord Carlile, and the other amendments in this group.

I note the detailed points made by the noble Baroness, Lady Brinton. Like the noble Lord, Lord Berkeley, I am struggling a bit with them. However, it seems to me that these amendments are generally sensible and important. The arguments in favour have been very well and movingly advanced. They would make this proposed legislation safer, as the noble and right reverend Lord, Lord Harries, suggested.

I shall take this opportunity to point out that our support for these and other amendments does not in any sense signify the Church of England’s support for the overall intention of the Bill. I am sure this applies to other Members of your Lordships’ House. Some suggestion has been made, not least in the media, that our position lacks clarity. Nothing could be further from the truth. We have every sympathy with and respect for—I cannot emphasise this too much—the honourable and compassionate motives that inspire the Bill’s proponents, as the noble Lord, Lord Cormack, indicated.

The church’s stance on assisted dying was made abundantly clear by the General Synod in 2012. When this subject was debated then, not a single member of it opposed a motion to keep the current law. Of course, some individual church members may and clearly do disagree but, to avoid any misunderstanding as we debate these amendments, that remains our corporate stance for reasons of principle and pragmatism that have already been very well rehearsed in this House.

Photo of Baroness Hayman Baroness Hayman Crossbench

My Lords, reference has been made to the GMC, and therefore I should perhaps draw attention to my interest as a member of that body, although I, of course, speak today purely personally and not on behalf of the GMC.

I want to address two issues relating to doctors. First, I support Amendment 15 on changing from a registered to a licensed medical practitioner, which is an important safeguard and correction.

However, I have severe concerns about Amendment 13. The right reverend Prelate said that he thought it would make the Bill safer for patients. I have to disagree. I think it would make the Bill impractical and restrictive. The reasons for that are partly the reasons outlined by the noble Baroness, Lady Brinton. People who are desperately ill who receive a diagnosis one or two years before their death very often think about moving. They sometimes move to be near relatives or into a care home, but moves even half a mile up the hill, as I learnt recently, can mean the severing of a long-term relationship with a GP practice. It is impractical and unfair to ask people who have moved in these circumstances to rule themselves out of access to the provisions of this legislation.

It is also impractical in terms of doctors themselves. We were taken back to the days of Dr Finlay in many ways by the speeches of the noble Lords, Lord Carlile and Lord Cormack. Very few people these days have a decades-long relationship with a single general practitioner. I am very nervous, because my legal education ended in 1969, of taking on the noble Lord, Lord Carlile, but he spoke about the realities of multiple partners in general practices in the National Health Service today. Certainly, my experience in my new practice is that you will be seen by any one of a number of partners there. However, the amendment says very specifically that the person must have been registered with one of the two doctors,

“for medical care for at least six months immediately prior”, not at the practice but with that specific doctor. That is very difficult for people to comply with.

Equally, like patients, doctors also move. They move to different parts of the country, and they retire. You can imagine many circumstances in which reading and applying those specific provisions would simply rule out for patients the ability to access this legislation. For that reason I oppose this amendment.

Photo of Lord Harries of Pentregarth Lord Harries of Pentregarth Crossbench

Would the noble Baroness be willing to accept a different kind of amendment which took into account the situations she mentioned? Of course, she is quite right that people might move from their general practice into a care home, but it seems that it would be very easy to devise an amendment which took account of that. There would have to be perhaps two or more general practitioners who agree over a period of time.

Photo of Baroness Hayman Baroness Hayman Crossbench

I am grateful to my noble friend. The difficulty is trying to put this in the Bill, to deal with all the different circumstances that will arise with individuals or with practitioners. I would be much more comfortable with that, because I think we are all on the same page with regard to not wanting someone who has had absolutely no contact with their doctor, because of all the issues which we know arise. However, I would much rather that those sorts of issues were dealt with in guidance, both from the GMC and the Secretary of State. It would then be much more possible to make sure that there would be equality of access for patients.

Photo of Lord Turnbull Lord Turnbull Chair, Audit Committee (Lords)

I will add one point to my noble friend’s argument which is absolutely telling. One can be registered with a GP and never see them for 20 years. You might be a very fit 40 year-old, but you could suddenly get a devastating diagnosis of cancer and wish to talk to your GP. Although you are registered with them, that GP does not know anything about you at all.

Photo of Baroness Young of Old Scone Baroness Young of Old Scone Non-affiliated

I will add to that last point, for which I am grateful. I have been a supporter of the principles of the Bill for almost the whole of my adult life, and I have had the same GP for 26 years. Every year I insist that he looks at my living will form, and we then have a very robust argument, because he is against the principle of assisted dying, and I insist that he takes account of my wishes in that living will form on an annual basis. I know that were I to be in a situation where I would require and wish to take advantage of the Bill, were it to become an Act, I would not be in a position where I could expect him to give me that support. We have been very clear with each other over the past 25 years. I do not know what the position of his colleagues in the practice is, but I am abundantly clear that when that point is reached, I will want to have a GP or a specialist consultant who is able to take a good medical history and read my notes, to understand what medical practitioners over the last 25 years have said about me, and to reach a valid professional judgment about whether my wish—I make that point; it is not the GP’s wish or the family’s wish—to take advantage of this provision is based on a good medical prognosis. It is not beyond the wit of the medical profession to do that even if they do not intimately know me. I hope that we will see that in the Bill.

Photo of Baroness Hayman Baroness Hayman Crossbench

I am grateful for both interruptions because they allow me to say what I omitted to say—that the other change as regards the doctor and the practicality occurs when you are registered with a doctor who has a conscientious objection. The other problem is with,

“at least one of whom has diagnosed the terminal illness and treated the person in relation to that terminal illness”.

The person who diagnoses and the person who is giving ongoing treatment are not necessarily the same person. Therefore this clause is dangerously worded at present.

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench 1:30 pm, 16th January 2015

My Lords, I wish to make three brief points. The noble Baroness, Lady Campbell, has told us that disabled people are worried that disability will be equated with terminal illness and that they will be made the subject of “do not resuscitate” notices—indeed, that this happens or, at least, has happened in particular cases. Like all of us, I hugely respect the sincerity of the noble Baroness and appreciate the strength and eloquence of her advocacy, but I genuinely believe that the fears that she has expressed, that this Bill will make the situation worse for disabled people, are misplaced.

I say this for two reasons. First, it is very important that we should be clear that the disabled person has to ask before they can be offered the facilities of this Bill to end their life. Secondly, they need to make an act of conscious choice before they avail themselves of these facilities. With all the safeguards in the Bill, it will actually make the situation of disabled people better.

Thirdly, it is further argued that, in consequence of these fears, disabled people are strongly opposed to this legislation. However, in actual fact, a recent YouGov poll found that 79% of registered disabled people—that is nearly four-fifths, very much in line with the rest of the population—support assisted dying for adults of sound mind with a terminal illness. So, for all these reasons, with the greatest respect, I believe that the arguments that have been advanced on behalf of disabled people are misconceived.

Photo of Baroness Campbell of Surbiton Baroness Campbell of Surbiton Crossbench

My Lords, I feel urged to come in here after the noble Lord, Lord Low, with whom I have worked and whom I have known for many years. We have discussed this subject on numerous occasions, and noble Lords will imagine that we have had some quite heated discussions. I shall add a little bit of information to add clarification. The disability community is made up of people with terminal illnesses. Outside the House today, as noble Lords will know if they have gone out to talk to them, are people sitting in their wheelchairs with terminal conditions saying, “No, this is not about choice—this is not about me asking”. They have often been in situations when they have felt so low that they felt that they had no options; their social care and healthcare was bad and they wanted to die. They could have taken advantage of the Bill proposed by the noble and learned Lord, Lord Falconer, because they have a terminal illness. There are at least six people outside these walls today in the freezing cold who have a terminal illness.

There are many people with terminal illnesses in the disability community, and those people have come together to demand that on this Bill we should slow down and think again. They have campaigned for choice and autonomy all their lives, and now they are saying, no, this is not about choice—and we have to listen to them. So please do not tell me that this is not about disabled people. It is very much about us because we are the people with experience of these issues. With the greatest respect, many people who are campaigning for this measure have not experienced these issues. They are people in control of their lives. They are people who fear becoming what they see us as. So I ask, please, that disabled people should be very much a central part of this debate. We have to listen to what they say, even if we do not like what they have to say.

I wish also to make a point of clarification. There seems to be a misunderstanding among noble Lords that I think that terminal illness is about having a chest infection. If I thought that, I would think that I was dying at least three times a year. I am not talking about that. I am talking about life-threatening terminal situations, such as muscle deterioration in the throat, whereby you can no longer eat or drink. That is what I have. Part of the GMC’s guidance on terminal illness concerns that process. I refer also to muscle deterioration within the lungs so that you can no longer breathe. That is terminal. Muscle deterioration around the heart is terminal. COPD is terminal. People with these conditions are part of the disabled community. They are out there—go and talk to them. Answer the letters from disabled people who say that this is not about choice. Ask them why they are saying this. Do not make assumptions about them. This is why I felt that I had to intervene at this point.

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench

If people with terminal illnesses do not wish to take advantage of the provisions of this legislation, what is there about it that forces or requires them to do so?

Photo of Baroness Campbell of Surbiton Baroness Campbell of Surbiton Crossbench

My Lords, the answer to the noble Lord’s question is that they fear that they will take advantage of this legislation when they are at their lowest with no choice. The noble Lord, Lord Low, will understand as much as I do about terminal situations where you do not have choices. These people have said that they do not want this Bill because they know that they might take advantage of it.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

Before my noble friend completes her remarks, has she had a chance to read the briefing that was sent to Members of your Lordships’ House only yesterday by the disabled people’s charity Scope, which says—this reinforces the point she has just made—that in the US state of Washington, where assisted dying is legal,

“61% of those requesting to end their lives did so because they felt a burden on friends, family or care-givers”?

Scope says in its briefing to your Lordships in support of the amendments we are considering:

“The definition in the Bill of ‘reasonably expected to die within six months’ would capture many disabled people”.

Photo of Baroness Campbell of Surbiton Baroness Campbell of Surbiton Crossbench

I think that was a question to me from the noble Lord, Lord Alton. The answer is, yes, I did know about Scope’s role. In fact, Scope approached me to ask me to emphasise issues around prognosis in the debate today.

Photo of Lord McColl of Dulwich Lord McColl of Dulwich Conservative

I have been trying to intervene for some time. I strongly support the amendment on terminal illness tabled by the noble Baroness, Lady Finlay, but noble Lords will be pleased to know that most of what I was going to say has already been said so I will not repeat it. It was said very ably by the noble Baroness, Lady Campbell of Surbiton, for whom I have the greatest admiration and with whom I have worked for many years.

There is an aspect of the definition of terminal illness that I should like to deal with. Under the benefit rules, an attendance allowance or a personal independence payment can be made under special rules if somebody has a terminal illness. The definition is therefore important. My understanding is that, for the purposes of receiving one of those benefits under the special rules, someone is defined as being terminally ill if they have,

“a progressive disease and his death in consequence of that disease can reasonably be expected within 6 months”.

This definition is set out in Section 66 of the Social Security Contributions and Benefits Act 1992. Are we going to say that anyone who receives one of these benefits would be eligible for assisted suicide on the basis of their physical health? I raise this as a genuine question because the Personal Independence Payment Handbook, issued in August 2014, also states:

“Awards made under the special rules for terminal illness will be for 3 years”.

This seems to be rather at odds with the expectation that the person is reasonably expected to die within six months.

To get this benefit, individuals have to get a completed DS 1500 form from their doctor, as has been mentioned. In a forum discussion on the internet, many of the individuals who got the benefit as a result of this form were definitely of the view that they would be living for more than six months. I am concerned that in future they might be encouraged to consider assisted suicide because they would fall within the definition of the Bill. The form was also referred to in the House of Lords report on the Bill of the noble Lord, Lord Joffe. I quote one doctor, who said:

“A simple bit of practical evidence is one of the benefit forms that are filled in for patients assigned to the doctor thinking that the patient has six months to live. I would not like to count how many of those forms I have signed in my life for patients still living after a year, eighteen months or even longer”.

Another doctor giving evidence to that committee about decisions on who had a terminal illness said that,

“doctors make arbitrary decisions about when a patient has reached a terminal stage. This can be when the patient is discharged from specialist care, when the patient moves from a curative state to a palliative state; some just use the position when what is known as the DS 1500 Form is actually prescribed, or some just use the point where patients have become bed-ridden or immobile”.

Surely we need something far more rigorous than someone being “reasonably expected” to die within six months when the consequence is that their life is actually ended. I fully support Amendment 20 of the noble Baroness, Lady Finlay, to remove the word “reasonably”.

Photo of Baroness Meacher Baroness Meacher Crossbench

Perhaps I may pick up the point about a six-month prognosis. The point there is that one’s life is ended. The whole point of the Bill is that one’s life is not ended simply because one starts the process at the point when one receives the six-month prognosis. It is all about having autonomy and a sense of control over one’s own situation, so that when life becomes unbearable one can then take that control.

Photo of Lord McColl of Dulwich Lord McColl of Dulwich Conservative

I thank the noble Baroness for that clarification. I note that in August 2011, 13,400 individuals receiving attendance allowance in England and Wales were considered terminally ill under the benefits definition. That would be a substantial group of people who might reasonably be eligible to have their death hastened by assisted suicide. We need to be very clear what we are talking about in relation to a terminal illness and, at the moment, there is a lot of room for ambiguity. Ambiguity does not lead to safeguards.

Photo of Lord Warner Lord Warner Labour

Can I seek clarification from the noble Lord? What he is trying to do is challenge the point that I was trying to make. I should like to make clear to the Committee the point that I was trying to make—which I do not think was the point he was trying to rebut.

My point about Section 82 of the Welfare Reform Act is that it bases public policy on the assertion that it is reasonable to ask doctors to make a judgment on whether someone is likely to be terminally ill and die within six months. It does not say that we expect 100% perfection from those forecasts. My point was that Parliament has decided in legislation that it is reasonable to have a definition of terminal illness that we can expect the generality of the medical profession to understand and apply on a reasonably consistent basis. In my judgment—the noble Baroness, Lady Hayman, may be able to correct me—it would be a breach of medical good practice and possibly an offence for doctors knowingly to sign those certifications if they did not clinically believe that the person was likely to die within six months.

Photo of Lord McColl of Dulwich Lord McColl of Dulwich Conservative 1:45 pm, 16th January 2015

My Lords, I would not dream of trying to rebut anything that the noble Lord said.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

My Lords, I support what the noble Lord, Lord McColl, said. He is one of the foremost medical authorities in your Lordships’ House. We know that many of the royal colleges and the British Medical Association, speaking for 153,000 doctors, say that it is not possible to legislate safely—which is the point that the noble Lord, Lord Cormack, made.

However, I recall that when my late father was dying and I went to spend time with him during the last part of his life, the doctor told me that I should make long-term provision for long-term care. After he left the room it was the nurse, who was the wife of one of the policemen who worked in the Houses of Parliament at that time, when I was in another place, who said to me, “David, you don’t need to make long-term provision. In my view, your father will be dead before the end of this weekend”. Needless to say, it was the nurse rather than the doctor who got it right.

Many noble Lords will have read the briefing from the Royal College of Nursing, which arrived only today. It says:

“Terminal illnesses are often extremely unpredictable with periods of improvement and deterioration. This can make it extremely difficult to pinpoint when someone might die … we remain concerned that diagnosing that a patient is expected to die within six months could result in inaccurate judgements through no fault of the medical practitioner”.

That is the point that that noble Lord, Lord Warner, has just made. It could lead to litigation against doctors and nurses if we do not put in far better safeguards than the Bill provides at present.

Photo of Lord McColl of Dulwich Lord McColl of Dulwich Conservative

I thank the noble Lord for that intervention. I have been in practice for very many years and I still am. One of the things that always struck me was how wrong I was about trying to predict when a patient would die. I well remember a typical case of a lady who was only 28. She had inoperable cancer of her throat. She was in great distress, with pain and distressed breathing. I saw my job as a doctor to relieve all her symptoms, whatever the cost. I said to her, “If you like, I can put a needle into your vein and titrate you with heroin”. Heroin is a marvellous drug. You have to dilute it in a large volume and not use the small volumes in the ampoule, because if a gun goes off you might suddenly give them too much too quickly. I titrated her and asked her to tell me when all the symptoms had gone.

Eventually she said, “Yes, that’s fine”. It was a huge dose of heroin. I had no problem about giving it. The strange thing was, not only did it not kill her, it gave her a new lease of life. It is unrelieved pain that is the killer.

Photo of Lord Berkeley of Knighton Lord Berkeley of Knighton Crossbench

The noble Lord said earlier that he gave his patient a huge dose of heroin. He used the words, “whatever the cost”. If it had killed her, would the noble Lord feel that he had assisted, maybe nobly, in her dying?

Photo of Lord McColl of Dulwich Lord McColl of Dulwich Conservative

The problem is that when you give these very powerful drugs, the symptoms are relieved but the patient is subject to the complications of being in bed for a long time, including clots in the veins of the legs. These may dislodge, go to the lungs and kill them, or they may develop pneumonia because their breathing is not quite as effective. Those are the complications but I resist the idea that I am deliberately killing them; I am deliberately relieving all their symptoms.

Photo of Lord Elton Lord Elton Conservative

My Lords, the point has been made, as though this closes the need for a definition, that a definition in the form DS 1500, which the noble Lord, Lord Warner, and many others have referred to, has already been passed by Parliament. I merely want to say that the need for precision when it is a question of providing social services benefits in cash or in kind is much less demanding than the need for precision when the question is pulling the plug on somebody’s life. Therefore, it is not unreasonable to return to this issue.

Photo of Lord Empey Lord Empey UUP

My Lords, one is reluctant to become involved in a debate when so many noble Lords with senior medical and legal experience have been putting forward their interpretations. However, I want to deal with a couple of matters. With this amendment, the noble Lord, Lord Carlile, is clearly adding that a medical practitioner will have to have significant knowledge of the patient.

I want to speak on this issue because I feel that the Achilles heel of the whole Bill is that it is built on sand. It works only on the assumption that the medical profession will deliver it, whereas it is obvious to most of us that the vast majority of the medical profession do not want to deliver it. That leads us to what may be the essential contradiction or conflict in the amendment. A number of noble Lords have said that specifying six months would be an overburdensome requirement. Therefore, we have the dilemma that either you have a medical practitioner who knows the patient, knows the condition and knows how that patient is likely to react to certain drugs, or you have a complete stranger who comes in and makes a judgment on the spot, having read a medical file. I fear that a rent-a-doctor procedure will develop and will distil down to those who are prepared to do it, and that, in my view, will create a whole series of new problems.

I want to raise another point regarding these amendments. We talk about having conversations, discussions and processes. I represented an inner-city

constituency for more than 25 years and my question is: with whom and at what time are people going to have these discussions, conversations and processes? At the moment, nurses hardly have time to feed patients on their ward, let alone to involve themselves in very complicated and difficult conversations, discussions and processes.

Therefore, looking at the modern-day NHS and all the pressures that it is under, to some extent we are adding a further pressure without the active support and consent of the medical profession. Also—this is the one thing that I worry about more than anything else—we are changing for ever the potential relationship between a doctor and a patient. In an inner-city area, the ordinary person will say, “Oh, here comes Dr Death. How can that person help me on the one hand and put my lights out on another?”. I fear that that is how this will be distilled down to street level.

In the amendment, the noble Lord is clearly trying to put in place the safeguard that the patient will at least be dealt with by somebody who knows him or her. I understand that and accept the rationale for it. However, there are practicalities, which have been raised by others. With inner-city practices, it is hard enough to get the patient to go to a doctor in the first place, but if they think that that doctor could at some point in their lives, as they would say, sign them off, will the amendment achieve the worthy objective for which it is meant?

The word “control” has been used a number of times. I think the noble Baroness, Lady Meacher, and others used it. One can see that people would want to have control over their lives. It could happen to any of us. But in the real world out there, many people who are seriously ill may not have the means. They do not have access to the courts, money or knowledge. Control may be all right for those of us in this House, but it is not always available to the ordinary person in the street. That is where I believe there is a fundamental weakness in this. Without the act of involvement of the medical profession who really want to do something, we are forcing them into a corner. It will inevitably boil down to a handful of doctors who will go around the country signing off people they do not know.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

The noble Lord made some cogent points in relation to this group of amendments. He made me wonder whether he thinks the solution may be that the discussions could happen earlier but the provision of the assistance to end life should be much later. The timeframe could change. Discussion of whether someone is terminally ill could start much earlier, and could therefore take more time, but the delivery of the lethal drugs could happen much later. For clarity, they are not morphine or heroin. The drugs are a massive overdose of barbiturates, which is completely different and would never be used therapeutically. That is the way that you end people’s lives under the Oregon and other legislation. That might be a solution. I also ask the noble and learned Lord, Lord Falconer of Thoroton, whether he would consider that type of solution in looking again at the clause.

Photo of Lord Empey Lord Empey UUP

Those are things that we have to probe in Committee. That is what Committee is for. The amendment of the noble Lord, Lord Carlile, has many worthy objectives. If the proposal that the noble Baroness, Lady Finlay, has just enunciated, works, and if the professionals who know their business feel that it is more helpful, that is terrific. That is exactly what this Committee is for. I therefore commend what she said.

Photo of Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean Labour

My Lords, I wanted to make exactly the same point as that made by the noble Baroness, Lady Finlay. I will not repeat it, but I ask my noble and learned friend to consider carefully the point that she just made about the actual timing of giving any drugs that would terminate life.

I wanted to make one other small point about something that the noble Lord, Lord Warner, said earlier about thinking that doctors were overoptimistic about survival rates. My own experience of this, which the noble Lord, Lord Carlile, referred to at the beginning of this debate, was exactly the reverse of that. Right at the beginning of a very late diagnosis of leukaemia, my husband was told that there was only a 20% survival rate for that form of leukaemia and he was unlikely to be in that 20% because of the late diagnosis. Five years later, he received a letter, having gone through the dark hours of the night wanting to end his life in very much the way that the noble Baroness, Lady Campbell, alluded to in others but has obviously steadfastly and gallantly resisted herself. The letter said that, in fact, the survival rate had not been 20%, as he had been advised, but 47%—more than double what the survival rate was meant to be.

I simply make the point that terminal illness is hard to define, whatever we put into legislation. The fact is that medical science is moving fast, particularly in the treatment of cancer. These definitions are enormously difficult and I would ask noble Lords to reflect on the fact that survival rates can be very much higher after a relatively short period of time.

Photo of Lord Warner Lord Warner Labour 2:00 pm, 16th January 2015

My noble friend referenced me in saying that doctors were overoptimistic. What I said was that one review of evidence has found that fewer than one in four patients outlived the prognosis when their clinicians predicted survival of six months or less. I said that that research rather suggests that doctors have a tendency to be overly optimistic about how long people will live, because it shows that when people thought they had six months to live, actually a large number of them failed to get through the six-month period.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords

My Lords, like the Government, the Opposition are not expressing a view on the Bill, and we have a free vote on this side of the House. I ask the Minister to help me with an interpretation of the meaning of Amendment 13, particularly in relation to the meaning of the provision that one of the registered medical practitioners has to have had the person registered with them for at least six months. Does he take that to mean that a patient has to be registered with a general practitioner for the provisions of the Bill to apply? I am assuming that when patients are under the treatment of other doctors, such as hospital doctors, they are not registered with them. This is important. If I am right—and I am expressing no view on the merits of the amendment—it would be helpful to the Committee to know from the noble Lord, Lord Carlile, what would happen in circumstances where, for reasons which have been set out by other noble Lords, a person is not registered or has been removed, sometimes forcibly removed, from the list by the GP under the arrangements that apply. It would be helpful if he could clear up that point.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Liberal Democrat

I am happy to clear it up. My understanding—and I am happy to be corrected by the Minister if I am wrong—is that if I am nominally registered with Dr A, who is in a practice with Drs B, C and D, and I go for treatment and am seen and treated by Dr D, I am being treated by a doctor with whom I am registered. That is because my registration with a doctor in a practice includes registration and treatment by any other doctor in that practice.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords

That is a very helpful response. Can the noble Lord explain the circumstances in which a patient is not so registered? At any one time there are thousands of patients who are not registered.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Liberal Democrat

If a patient is not registered, they are not registered. If a patient goes as a temporary resident—as I think the term used to be; I am not sure if it still is—to see a particular doctor, a general practitioner, they are then registered for the period of the temporary residence, which from memory is, or at least used to be, one month, and which may be renewable for the purposes of that treatment.

To deal with the broader aspects of the noble Lord’s question it might be worth making the further point, while I am on my feet, that it is very difficult to imagine that a patient would be in the situation described in the Bill but had not been treated for at least six months by a practitioner, such as the practitioner who was treating their cancer. That is the general experience that people have.

Photo of Lord Faulks Lord Faulks The Minister of State, Ministry of Justice

My Lords, I do not have anything to add on that particular point.

This has been an excellent debate which has gone to the heart of some of the most difficult parts of the Bill. Why is six months the right period? Of course, we have heard plenty of informed opinion about how difficult it is to make a prognosis of any accuracy. In Amendment 21, a period of six weeks is suggested as a better period. It may be that that enables a clearer prognosis to be given, but it seems extremely short for the various practicalities and safeguards to give the Bill any real meaning. Inevitably, six months is something of a compromise; the question is whether it is a satisfactory compromise. It will not, of course, suit everybody.

It is something of an irony that one of the spurs behind this Bill and our debates is the Supreme Court’s decision in Nicklinson, which was concerned with the desire of two men with locked-in syndrome—an almost totally paralysing but not terminal condition—to request assistance to die. The Committee might like to be reminded that the President, the noble and learned Lord, Lord Neuberger, commenting in the judgment on the Falconer commission and the six-month period, said:

“That would not assist the applicants”.

I am sure that that is not in dispute. He went on:

“Further, I find it a somewhat unsatisfactory suggestion. 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”.

These are very difficult questions and I look forward to hearing the answer from the noble and learned Lord.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Constitutional and Deputy Priministerial Issues)

I am again grateful for a very good debate. I agree with the noble Lord, Lord Faulks, as ever, that this goes to important issues in the debate. I accept the definition given by the noble and right reverend Lord, Lord Harries, of these issues, which go to the safeguards.

In looking at the safeguards, it is important to put into context the safeguards in the current draft of the Bill: two doctors, independent of each other, certifying that the patient has a terminal illness which they reasonably expect will end their life within the next six months; the two doctors, independent of each other, certifying that the person has made a voluntary decision, that they have the capacity to make that decision and that it is their firm and settled intention that they wish to take their own life in those circumstances; and that decision are not to be given effect without the consent of the Family Division of the High Court of Justice. Those are the safeguards.

Let us look at the proposals in the light of those existing safeguards. First, the noble Lord, Lord Carlile, proposes, in effect, that a person must have as one of the doctors a general practitioner with whom he or she has been registered for the last six months—I understand that registration is a concept that only has relevance to a general practitioner. That proposal, as the noble Baroness, Lady Brinton, has pointed out, appears not to deal with people in the following circumstances: somebody who, for example, moves to live near their relatives, then gets ill and is not registered for six months; somebody whose general practice, for example one run by a sole practitioner, packs up; or somebody who, for example, has a general practitioner who has a conscientious objection to the use of the provisions of the Bill.

If Parliament were to pass a Bill giving people the right to an assisted death, I venture to suggest that it would be a very odd conclusion that your ability to access that right would depend on the adventitious circumstance of whether, for example, you had moved one month before to be near your son and daughter, as my own stepmother did. That does not seem a sensible basis. However, a very powerful thread in this—which has been mentioned in particular by the noble Lords, Lord Cormack and Lord Empey—is the idea of a doctor who does not, as it were, properly consider the merits of an individual case but is, as suggested by the noble Lord, Lord Empey, available for hire. That is something that I would wish to avoid as much as possible. I venture to suggest that there may be three ways to deal with it.

First, I would expect the medical bodies to produce guidance. That can be given effect to, because a High Court judge would have to be satisfied that an appropriate process had been gone through. In addition to that, I note that, according to Clause 3(7), the independent doctor has to be “suitably qualified” in that he,

“holds such qualification or has such experience in respect of the diagnosis and management of terminal illness as the Secretary of State may specify in regulations”.

I would anticipate that the Secretary of State would be able to make in regulations provisions that make it clear that the independent doctor could not be the sort of doctor that the noble Lords, Lord Cormack and Lord Empey, and others referred to. If there are better ways of dealing with the doctor for hire situation, I am very willing to hear and discuss them and bring them forward at the next stage, but I am absolutely clear that the way in which the noble Lord, Lord Carlile, is suggesting it be dealt with is unworkable and unfair and cuts at the heart of the Bill.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Liberal Democrat

I have a serious question for the noble and learned Lord, which I am sure he will answer seriously. The thrust of what I am saying in my amendment, with my noble colleagues who have signed it, is that the gateway that is provided in Clause 2 should be subject to two doctors—doctors who can be shown to have some considerable knowledge of the person’s case. Is he willing to accept that principle?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Constitutional and Deputy Priministerial Issues)

I do not accept it in the way that the noble Lord has formulated it. I say that there should be two doctors who have properly, on good evidence, considered the case. It may well be that neither of those doctors has been engaged in the long-term or even short-term care of the person. But I would be satisfied with the gateway involving two doctors who have gone through a proper and rigorous process, and I disagree with the noble Lord when he says that they have to have known the person for six months. Indeed, I do not think he is even saying that because registration over a six-month period would not necessarily involve any contact whatever with the general practitioner.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Liberal Democrat

I am grateful to the noble and learned Lord, who has made a helpful response, up to a point. If the Bill were to go further, would he be prepared to enter into discussions on the clear basis that Clause 2 would have to be amended to ensure, first, that there were two doctors involved in that gateway—whatever the gateway is, because we are going to consider another group shortly that is relevant—and, secondly, that it should be shown that at least one of those doctors has had detailed past consideration of the patient’s case? It seems to me that that sort of measure is the only way of ensuring that we do not have a Shipman-type situation.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Constitutional and Deputy Priministerial Issues)

The first point about the two doctors is dealt with in Clause 3, because the second doctor has to certify that he is content.

The noble Lord is getting frightfully agitated. If he looks at Clause 3, he will see that it requires certification by a second, independent doctor.

Secondly, the noble Lord asked whether I would enter into discussions in relation to putting in the Bill that one of the doctors has had to be involved in the care of the patient. No, I would not because I think it is satisfactorily dealt with in the Bill as it stands, for the reasons I have indicated. I will answer the noble Lord, Lord Jopling, first, and then go to the noble Lord, Lord Maginnis.

Photo of Lord Jopling Lord Jopling Conservative

I am concerned very much about this problem of doctors for hire. Does the noble and learned Lord not agree that there is another way, on top of the ones he has described, of dealing with this problem? If he looks at my Amendment 36, he will see it suggests that no doctor should sign a declaration of this sort more than once every four years. I am intent on establishing the principle; whether it is four years or less, I am perfectly happy to have discussions and hear what other people say. But surely to deal with the problem of doctors for hire you could put a limit on the frequency with which a doctor could sign these declarations. The noble Baroness, Lady Murphy, who I believe is not here today, has put down another amendment, Amendment 37, which proposes a timescale of very much less—I think that, for one of the doctors, it is once every two months, which I think is far too frequent. I would be perfectly happy on Report to put down another amendment, if the noble and learned Lord would give it a fair wind, which would put a limit—let us say two or three years—on how often a doctor could sign such declarations, which, after all, will be pretty rare events.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Constitutional and Deputy Priministerial Issues) 2:15 pm, 16th January 2015

I am very happy to discuss with the noble Lord the idea of there being some limit. I have thought carefully about the limit issue. My inclination is against a limit for the following reason: that there might be doctors—for example, those engaged in the treatment of particular sorts of cancer, covering a particularly wide area of the country—for whom, if the Bill is passed, a limitation of the kind that the noble Lord has suggested, whereby somebody could not countersign a declaration if they had signed one in the previous four years, does not sound appropriate. However, I am completely engaged on how one seeks to deal with the issue of doctors for hire. I would be more than happy to discuss it, but I do not want to give a misleading impression. My current thinking is that it would not be a good idea to put a limit on it.

Photo of Lord Maginnis of Drumglass Lord Maginnis of Drumglass Independent Ulster Unionist

I was to some extent motivated to intervene at this stage because the noble and learned Lord alluded to the noble Lord, Lord Carlile, as being “agitated”. I thought, “That’s a word that perhaps the noble and learned Lord, Lord Falconer, would consider”, because it appears that, as we have moved through this debate, he has moved more and more to provision for the exceptional case; for example, if somebody does not have a doctor, or they do not have a doctor for a certain length of time. No good legislation should be brought forward on the basis of extraordinary cases. If those matters arise, the legislation can be amended, but I am very worried that we are arguing a flawed case based on extraordinary circumstances that may arise.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Constitutional and Deputy Priministerial Issues)

I could not agree more with the approach that underlies what the noble Lord, Lord Maginnis, has said. That is why, although I accept and admire the spirit in which it is offered, I do not think that it is a sensible amendment, because it would lead to so many situations that would then not have been covered by a Bill which, on this hypothesis, had been passed. It would therefore be a very bad idea to accept it. I acknowledge and accept the idea that you should not pass a Bill that then leads to problems, which is exactly what the amendment would do. However, I anticipate that the noble Lord would say that he had the precise reverse in mind.

Photo of Lord Cormack Lord Cormack Conservative

I am most grateful to the noble and learned Lord for giving way, and particularly for the references that he has made to the points made by the noble Lord, Lord Empey, my noble friend Lord Jopling, and me. In response to the noble Lord, Lord Jopling, he understandably poured some cold water on the four-year limit, but would he accept that a limit of a reasonable time would help allay the fears that my noble friend Lord Jopling, the noble Lord, Lord Empey, and I all have?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Constitutional and Deputy Priministerial Issues)

As I indicated to the noble Lord, Lord Jopling, I am more than happy to talk about it. The example of the cancer specialist or the motor neurone disease specialist makes me instinctively, having considered it quite carefully, against the idea of any limit, but I am more than happy to discuss it.

Photo of Baroness Cumberlege Baroness Cumberlege Conservative

My Lords, I listened with great care to what the noble Lord, Lord Empey, said. The noble and learned Lord has been very helpful in saying that he will negotiate with people and talk further about this. Could he not think a little more widely, because there is real concern about the medical profession as a whole being involved in this? I am also concerned about the nursing profession and other clinical specialists who could be involved. As I read the Bill, it makes room for that.

Professionalism is such an important element in the work of all those people who work in the NHS. Professionalism is indicated by the values, behaviour and relationships that underpin the trust that the public have in doctors, nurses and other clinicians. One reason why I am against the Bill is that I think it is so damaging to the medical and other professions. I have listened to my noble friend Lord McColl, the noble Baroness, Lady Finlay, and others. The commitment of the people in that service is outstanding. We know that doctors are the most trusted of all the professions. The trust is there because we know the intention of those people in treating us. We know that they come committed to cure, to treat, to alleviate pain and to be compassionate. The Bill goes against that.

Does the noble and learned Lord, Lord Falconer, not think that we could be a bit more imaginative? Building on the amendment of the noble Lord, Lord

Pannick, which was passed at the previous Committee sitting, could we not have a person appointed by the court to carry the drug, medicine, dose or poison—whatever you want to call it—and actually administer it? If a nurse or a doctor finds that the patient cannot quite administer it, because they are compassionate people, will they not help that person to do it? Are they not then in real danger of cutting across the whole tenet of the Bill?

Perhaps the noble and learned Lord will talk to some of the rest of us. I have tabled amendments to enable that to happen, but we will probably not get to them today. Will he not widen his vision of the Bill to see whether he can protect the medical, nursing and other professions by building on the amendment of the noble Lord, Lord Pannick, to have a person appointed by the court?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Constitutional and Deputy Priministerial Issues)

I could answer that, but the noble Baroness has tabled a later amendment. I am not at all unsympathetic to what she is saying—although I think that it is adequately dealt with by the Bill—but I do not think that it is appropriate to be taken into that debate when we are dealing with other amendments. I am sorry, but I do not think that that is an intervention to which I should appropriately respond, because other people have made contentions in the course of the debate. With respect, to hive off into the noble Baroness’s later amendment does not seem a sensible way to conduct our business. I am sorry.

Photo of Baroness O'Loan Baroness O'Loan Crossbench

I should like clarification from the noble and learned Lord. I think he said that Clause 2 required two practitioners, but on my reading it requires only one. If there is one practitioner and a person is diagnosed with a terminal illness, the terminal illness is, if you like, the gate into everything else in the Bill. That I have a terminal illness allows everything else to follow. If one doctor diagnoses a terminal illness, there is the possibility that that doctor may do so at the behest of relatives. The motives of those relatives may be benign or malign. If the person gets a diagnosis of that kind from a medical specialist, that may change their whole perspective on life. The mere fact that someone has said to them, “You are terminally ill. You are going to die in six months”, when that has not been said before, may lead them to think, “Perhaps I should seek assisted suicide”.

That may be quite an unintended consequence of limiting this, but at least if we have two doctors, in some form or another, as suggested by the amendment of the noble Lord, Lord Carlile, surely there would be some protection. As I read the Bill as it stands, there is very little protection for the vulnerable person who is lying in bed and seeking some way to find a way through this. Terminal illness and serious pain have a number of effects. One is to cloud judgment and another is to sap the zest for life. That zest, as the noble Baroness, Lady Finlay, and others have said, may well be restored by palliative care, which relieves the pain, as the noble Lord, Lord McColl, has said. This is such an unsatisfactory provision that I should like the noble and learned Lord to confirm whether I am right.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Constitutional and Deputy Priministerial Issues)

I think the noble Baroness is wrong. I thought that I had said Clause 3 but maybe I did not. Clause 3(3) requires two doctors to sign the person’s declaration that the person,

“is terminally ill … has the capacity to make the decision to end their own life; and … has a clear and settled intention to end their life which has been reached voluntarily, on an informed basis and without coercion or duress”.

If I inadvertently said Clause 2, I meant Clause 3 and I apologise. It involves two doctors. We could go into the debate about vulnerability again, but with regard to clarification on whether two doctors are required, I think the Bill is utterly clear.

Photo of Baroness O'Loan Baroness O'Loan Crossbench

I just want to understand which clause we are debating. I thought we were debating Clause 2, which refers to a registered practitioner. As I said, I know that there are other safeguards that the noble and learned Lord is trying to write into the Bill, but the reality is that the realisation of this clause in a person’s life may have significant unintended consequences. I simply wanted to ask the noble and learned Lord whether there is one doctor in Clause 2 or two.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Constitutional and Deputy Priministerial Issues)

It is obviously my fault for not properly explaining this. As I understand the noble Baroness’s point, she is asking whether only one doctor has to decide whether the person is terminally ill.

Photo of Baroness O'Loan Baroness O'Loan Crossbench

No, I am talking about the point at which we open the gate and make the Bill apply. I know that in subsequent situations the process develops. I think that one of the weaknesses of the Bill is that the processes are kind of confused. At this stage of the Bill, though, is there one doctor who will say to the person, “You are terminally ill, with six months to live”, so that all other discussions can then take place and you can move towards seeking the declarations and that sort of thing? I just thought it might be helpful to be clear in my mind what we are talking about.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Constitutional and Deputy Priministerial Issues)

That is a fair point. The process is that one doctor says the person is terminally ill. The patient declares that they want to take their own life and then the second doctor has to confirm both the terminal illness and the firm and settled intention, voluntariness and capacity. I am not quite sure what further point the noble Baroness is making. She is right that Clause 2 refers to the initial doctor and Clause 3 refers to the second, but the process involves two doctors. I can take it no further than that, I am afraid.

The next point that was raised about the safeguard was the suggestion that we reduce the period from six months to six weeks. I completely accept that there are uncertainties from time to time about diagnosis. A judgment has to be made as to whether someone is terminally ill and may be reasonably expected to die within six months. I do not believe that that is an impossible task for a doctor to embark upon. As the Minister said, a judgment has to be made on what the right period is. I anticipate that the mood of the Committee is that six weeks is much too short. As a matter of judgment, six months feels right after hearing considerable evidence in the commission, and it also feels right having heard the debate just now.

The fact that diagnoses and predicting the length of time that you have to live are difficult—they are difficult whether the amount of time is six weeks or six months—does not lead me to believe that the Bill should not go forward, or that we should vacate the field in giving people that right. As the noble Lord, Lord Berkeley of Knighton, said, in this area we are not dealing with certainty. The question is whether, in the absence of certainty—and no provision can give certainty—we should be saying that because you cannot have certainty you cannot have the Bill. In my view, the right conclusion is that even though you cannot have certainty—everybody agrees with that—you should nevertheless have the Bill. Having listened very carefully to the choice between six weeks and six months, and obviously having considered something in between, six months appears to be right in relation to this.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench 2:30 pm, 16th January 2015

I am grateful to the noble and learned Lord for having finally got on to the timeframe issue and for his acknowledgement that, on a balance of probabilities, things are more likely to be accurate within a shorter timeframe than at six months. Does he accept that it might be worth considering uncoupling the time in which the discussions can occur from the time within which the prognosis indicates that it is eligible for the lethal drugs to be taken to the patient? That was the question that I asked the noble Lord, Lord Empey, and on which the noble Baroness, Lady Symons, came in, but the noble and learned Lord has not answered that question at all.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Constitutional and Deputy Priministerial Issues)

I apologise to the House for taking so long to get on to the point about six months versus six weeks. I very carefully considered whether one should say that, once you have a diagnosis of six months to live, you should be able to have the discussions but only be able to take the drugs within six weeks. I am strongly against that.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Constitutional and Deputy Priministerial Issues)

If I may finish, the reason I am against it is that once the diagnosis is given by the doctors, there is a process that will take a considerable time, and that once the court has approved the process and said that somebody should do it, it should be for them to decide when they do it. It would be an unsatisfactory and, I suspect, an unenforceable process to have to go back and get a doctor to say that you have six weeks or less to live. I thought carefully about that point before it was raised. It is not referred to in any amendment and I assumed that nobody had properly considered it. I am against it.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

If I may come back on that, does the noble and learned Lord recognise that those discussions are currently being had with patients, day in and day out, up and down the country? It is not as if the Bill, as some noble Lords implied, would be the way in which people start talking about their dying because it should be a routine part of clinical practice, as laid out in the GMC guidance. However, I do not think that he has yet answered my question on whether there would be merit in uncoupling those discussions and that process from the time at which the drugs were delivered. If I hear him right, he is saying that when you are in that zone of complete uncertainty and could toss a coin on it—you might die within six months or, as the noble Lord, Lord McColl, said, within three years; indeed, in the case of some of my patients you might die within 10 years, as it happens—the fact that the doctor has mistakenly said that he believes you are terminally ill would suddenly give the message that you should be considering having an assisted suicide. That would probably start to trigger these discussions. That is the danger in not uncoupling them.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Constitutional and Deputy Priministerial Issues)

I thought that I had answered the question but I will answer it again. A doctor has concluded that he or she reasonably believes that you have six months or less to live; another doctor has confirmed the diagnosis; and the courts have concluded that it is an appropriate case for an assisted death. Thereafter, my view—I should be clear about this—is that you should be entitled to have an assisted death as prescribed by the Bill. I am therefore against the decoupling of the beginning of the process from the time at which the drug could be taken.

The noble Baroness says that these discussions are taking place at the moment. No, they are not; the discussions taking place are about how somebody wishes to die. It does not involve discussions about assisted dying in the context of my Bill because that is not permitted at the moment, so this is dealing with a new situation. My clear answer to her is that I am not in favour of the decoupling. My proposition is that if two doctors certify and the court says yes, once that process has been gone through, it is for the patient to decide the moment he or she takes the drug, and there should not be another process for a doctor to certify that the patient has six weeks or less to live.

I shall deal with the other points raised in this group. First, for reasons I just cannot understand, the noble Lord, Lord McColl, and the noble Baroness, Lady Finlay, suggest that where the Bill states,

“reasonably expected to die within six months”, or less, the word “reasonably” is deleted. That seems unwise. In my view, it is appropriate that a doctor giving such a diagnosis has a proper and reasonable basis for doing so. I am against that change.

In the context of the amendment moved by the noble Lord, Lord Carlile, the noble Baroness suggests we refer to a “licensed” practitioner rather than a “registered” practitioner. Although I do not agree with the amendment moved by the noble Lord, Lord Carlile, the point that the noble Baroness, Lady Finlay, is making appears to me to be a good one. We should discuss, outside the Chamber, the precise language. The noble Baroness, Lady Murphy, has an amendment that puts the language in a slightly different way. We are all concerned to allow this to be done only by doctors who have the appropriate qualification and are in practice. I am happy to agree an amendment that reflects that.

The noble Baroness, Lady Campbell, made a number of powerful submissions in relation to how this affects disabled people. The noble Baroness, Lady Brinton, responded to them and made it clear that disabled people can have different views about the adequacy or otherwise of the Bill. I was very struck by the reference to “The Theory of Everything” and Stephen Hawking, who is, in fact, in favour of some process of assisted dying.

The underlying anxiety that has been expressed to me by disabled people is that if we pass an assisted dying Bill, we in some way devalue the lives of disabled people and put them more at risk. I do not believe that we devalue disabled people in any way by passing this Bill. I believe it is incredibly important that disabled people have exactly the same options as everybody else when they are terminally ill. I also believe that the safeguards in the Bill are much stronger than the existing safeguards in relation to decisions about treatment. I completely echo the point that the noble Baroness, Lady Brinton, made: this will not be forced on anybody. It is an option to be asked for, and even when asked for, it can be given effect only when two doctors have certified that it is appropriate and the High Court of Justice has said that it is okay. Having spoken widely to disabled people, I do not believe that it puts them more at risk than the population as a whole. Although I, like everyone else in the Committee, am very moved by what the noble Baroness, Lady Campbell, said, I do not accept the criticism that she makes in relation to the Bill.

I think I have dealt with all the main proposals. This has been a very worthwhile debate. The areas where I think further discussions would be of value are in relation to the “doctor for hire” proposition and how we properly identify the qualification required for a doctor. In relation to the other proposals, I am broadly against them.

Photo of Lord McColl of Dulwich Lord McColl of Dulwich Conservative

I shall just explain some of the worries that the noble Baroness, Lady Campbell, has.

Noble Lords:

No!

Photo of Lord McColl of Dulwich Lord McColl of Dulwich Conservative

In a sentence, every time she goes into hospital, they say, “You don’t want to be resuscitated, do you?”. A lot of disabled people have that question put to them. Does the noble and learned Lord think the Bill is going to change that?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Constitutional and Deputy Priministerial Issues)

I will take that up. With regard to my Bill, if the situation were reached—the noble Baroness, Lady Campbell, referred to this—that somebody had very low air and decided to take advantage of my Bill, they would have to get two doctors to approve it and the High Court of Justice would have to say yes. That is a very different situation from the one that the noble Lord describes. My Bill gives much greater protection as regards somebody who is asking for death than the situation that the noble Lord describes. It is for that reason that I cannot understand why he says that my Bill might make it worse.

Photo of Baroness Masham of Ilton Baroness Masham of Ilton Crossbench

Can the noble and learned Lord say if he thinks that pressure might be put on some vulnerable people from family members who want to save money?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Constitutional and Deputy Priministerial Issues)

The Oregon experience is that that does not happen, but the safeguards—two doctors, and the High Court judge approving it—are in my view sufficient to prevent the sort of abuse to which the noble Baroness refers.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

I am grateful to the noble and learned Lord for having responded to the question about the qualification of doctors, which is an amendment to the amendment in the name of the noble Lord, Lord Carlile. I will make just a couple of points in response. One is that I am glad to see that the noble and learned Lord recognises that the way the Bill is currently drafted is a problem and that you need doctors with experience, but I wonder how he will achieve that. Clause 3(7) requires, rightly, that the doctor holds an appropriate qualification. However, yesterday the Association for Palliative Medicine published the results of its consultation with its members, which had a very high response rate and showed that only 4% of palliative medicine doctors who are licensed to practice are prepared to have any involvement in this process. Therefore if the conscience clause is to have any meaning, it is something to which we need to return, and I welcome the noble and learned Lord’s commitment to engage in discussions over it. We will come to other amendments later, which I have tabled, on how we might solve the problem, but I do not think that we will get to them today. I beg leave to withdraw the amendment.

Amendment 13A withdrawn.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Liberal Democrat

My Lords, perhaps the Minister or the Chief Whip will correct me if I am wrong, but I understand that the position is that I should now wind up on my amendment after the noble Baroness, Lady Finlay, has dealt with her amendment to my amendment. I apologise to the noble Baroness, Lady Masham; I simply did not see her trying to intervene. I did not intend to be discourteous.

This debate has taken—it just disappeared from the screen—something like two and three-quarter hours, which is a clear indication of the importance of the issues we have been discussing in this group of amendments. I express my gratitude to noble Lords who have taken part, including of course to the noble and learned Lord, Lord Falconer, who has responded to this debate and intervened at various times in a helpful and constructive way. He suggested at one moment that I was agitated. Agitated—no; frustrated—yes. I will explain my frustration.

The noble and learned Lord, as far I can see throughout the latter half of this debate, has addressed Clause 3. The noble Baroness, Lady O’Loan, who is a distinguished and talented lawyer, saw straight through that and made it clear that we are dealing with Clause 2. That clause is about the gateway. Clause 3 is about the certification. There is a very serious point of principle about the standards that there should be at the gateway. I make no apology for re-emphasising that it is my view—otherwise I and others would not have tabled these amendments—that the gateway to this whole process must have medical, intellectual, empirical and objective integrity. None of those words are tautologies. It is the sum of them that we need for this gateway.

I do not know how many of your Lordships have read Dame Janet Smith’s three reports on the Shipman case. It was one of the biggest compendious inquiries that there has ever been. This issue was not really adequately addressed, in my respectful view, in this debate. In a quiet and beautiful valley in the same part of Lancashire and Yorkshire that I was dealing with earlier—in fact, in Todmorden, which is just over the border, in that county that Lancastrians rarely name—Dr Shipman probably killed a couple of hundred people. He was regarded as a kindly, gentle general practitioner to whom you gave a cup of tea and whom you could invite into your house with confidence. I want to be sure—and I know that others in this House want to be sure—that the gateway is safeguarded against people like Dr Shipman, for the reasons illustrated so well in her reports by Dame Janet Smith.

Furthermore, I reject the arguments that have been mentioned that there are real, practical difficulties with this amendment. There may be a few cases—and when we have dealt with the principle, we can look at the detail—in which people move away either from the general practitioner’s practice that has been dealing with them or from the specialist who has been treating the illness that has been determined as terminal. However, in my view those cases are going to be very few in number, far fewer than has been suggested by some of your Lordships, and that should not be an inhibition at this stage to the establishment of a clear safeguard and principle of safety.

The point was made by the noble and right reverend Lord, Lord Harries, that we are talking here about safety. We should hearken very carefully to the comments made by the noble Baroness, Lady Campbell of Surbiton, in her first intervention. She happens to represent in an informal way in our House that very important constituency of disabled people. She has told your Lordships that many disabled people outside this House do not have reassurance that this Bill provides in its gateway sufficient safeguards. In itself, that seems to be a sufficient reason to determine whether we wish to have the principle in this amendment. Furthermore the noble Baroness, Lady Grey-Thompson, and indeed the noble Lord, Lord McColl, highlighted the fact that the Royal College of Pathologists has shown in many cases that the cause of death given was just plain wrong. That shows how important it is to have robust safeguards.

We had some references to forms that I must admit I am fortunate enough never to have read, relating to benefit rules. To me, referring to those forms is a complete absurdity in the context of this debate. Those forms are about whether people are going to be paid sums of money by the state for their maintenance. That is no doubt an important issue, but it pales into insignificance on the issue of principle that relates to one person helping another person to commit suicide with a huge and lethal dose of barbiturates.

I could make many more comments, but I note that it is now 2.50 pm. In my judgment, there is a real principle and there are a lot of people waiting for your Lordships’ determination of that principle. To me it is as simple as this: do we want the gateway to be safe or are we prepared to take risks with people’s lives? With that in mind, I believe that the opinion of the House should be tested.

Division on Amendment 13

Contents 61; Not-Contents 119.

Amendment 13 disagreed.

Division number 2 Assisted Dying Bill [HL] — Committee (2nd Day)

Aye: 59 Members of the House of Lords

No: 117 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Photo of Baroness McIntosh of Hudnall Baroness McIntosh of Hudnall Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, I have to tell the House that in the first Division one noble Lord voted in both Lobbies. Accordingly, their vote has been discounted and the result of the Division was therefore: Contents, 106, Not-Contents, 179.

House resumed.

House adjourned at 3.01 pm.