Lord Falconer’s Assisted Dying Bill: second reading

The Assisted Dying Bill [Lords] was given a second reading without division and committed to a Committee of the whole House.

It is impossible to do full justice to a debate that was both serious and measured and, occasionally, quite harrowing as several contributors recounted their own experiences of the death of close family members. It was also a marathon by the standards of a normal private Peers’ Friday: following are some snippets. The full Hansard text is here.

Introducing his Bill, Lord Falconer of Thoroton (Lab) said that the courts and the prosecution authorities had tried to steer a course between Section 2 of the Suicide Act 1961(which makes assisting suicide an offence) and the desire not to enforce it. “But the current situation leaves the rich able to go to Switzerland, the majority reliant on amateur assistance, the compassionate treated like criminals and no safeguards in respect of undue pressure.”  The principle of the Bill was that the terminally ill should have choice over how they die, but subject to effective safeguards to prevent pressure or abuse. It would lead not to more deaths, but to less suffering. Disabled or older people without a terminal illness would not be eligible for an assisted death. The Bill did not legalise voluntary euthanasia where a doctor directly administered life-ending medication; rather, it provided that the final act in an assisted death had to be taken by a patient with mental capacity both at the time of the request and at the time of death.

Clause 1 enabled terminally-ill adults to request assistance to end their own livee. No other person, including the patient’s doctor, family and partner, was able to initiate the process of requesting an assisted death. Clause 2 defined “terminally ill” and “terminal illness” as applying to a person expected to die from a terminal illness within six months. Clause 3 set out a series of safeguards. Clause 4 set out the practical arrangements for providing medicines to enable a terminally ill person to end their own life. Clause 5 enabled health professionals to refrain on the grounds of conscientious objection from assisting a person to die in accordance with the Bill. Clause 12 was a sunset provision which would enable the Bill to be repealed by resolution of each House and without the need for further primary legislation after the Act had been in force for 10 years.

The courts had said repeatedly that the current law does not work—most recently, in the Supreme Court a few weeks ago. Lord Neuberger MR had  said in his recent judgment:

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

There was a need for such a change and the general population supported it at a level of above 70%; among the disabled the level was 79%.

Lord Mackay of Clashfern (Con) made the second speech, opposing the Bill. In his view, its only subject matter was assisted suicide: dying was a much wider topic than suicide and section 2 of the Suicide Act was an important protection for the vulnerable. The current guidelines for the institution of prosecution had been put in place after wide public consultation and were subject to amendment as circumstances changed.

If the Bill became law, a person within six months of death would face the agonising choice of deciding to seek assisted suicide or awaiting the natural ending of his or her life. Presumably, the attending doctor would have to advise the patient of the option of assisted suicide and the evidence from Oregon (where assisted suicide has been leglaised) suggested that it was very difficult for a patient to reach a concluded view on the matter. Lord Falconer had referred to the fact that a number of people who declared a settled intention to take their own lives had in fact not used what was provided and died naturally. He asked if it was compassionate to introduce a dying person to a regime that required such strenuous decision-making.

Lord Lester of Herne Hill (LD) supported the Bill. Patients had the right to life and also had  the right to personal autonomy and dignity. They and their doctors needed to know what exception there was to the law of homicide enabling a doctor, acting in accordance with the patient’s wishes and the doctor’s conscience and judgment as to the appropriate medical treatment, to administer that treatment, even though it would end the patient’s life. Unless the criminal law and good medical practice were clear, conscientious doctors would be left in a state of uncertainty and anxiety. This very narrowly drawn Bill would give them the certainty that they deserve.

There were several contributions from a religious perspective. The Archbishop of York explained that the official Church of England position was made very clear on 9 July 2005, when the General Synod approved on a motion arguing strongly against making assisted suicide or euthanasia lawful by 297 votes to one. That was reaffirmed by General Synod in 2012. The present Bill was about asserting a philosophy which not only Christians but other thoughtful people of good will with experience in care for the dying would find incredible: that ending one’s life in circumstances of distress was an assertion of human freedom. Human freedom was won only by becoming reconciled with the need to die and by affirming the human relations we had with other people. Dying well was the positive achievement of a task that belonged with our humanity. His own mother had lived for 18 months with aggressive throat cancer: during that time, his children, born in England, were able to get to know and love their grandmother, and she was able to delight in them. That was a gift. The Assisted Dying Bill could deprive some terminally ill individuals and their families of this very important time of shared love and wonder.

Baroness Finlay of Llandaff (CB), Professor of Palliative Medicine at Cardiff, was very doubtful about the safeguards in the Bill. As to a prognosis of six months, there was no accurate test and the only honest answer to the question, “How long have I got?”, was to say, “I honestly can’t tell”. Even of those thought to be likely to die within 48 hours, about 4% improved and some even went home. Nor was the Bill about a right to die: it was about licensing doctors to supply lethal drugs to some of their patients and helping them to commit suicide, however long their life might otherwise have gone on for.

“I have seen the strongest people, including politicians and senior doctors, be the most vulnerable when facing dying—vulnerable to coercive influence and vulnerable to their fears. The role of my profession is to address those fears and to support those people, not to encourage them, even silently, to believe that they should foreshorten their lives.”

Palliative care was no magic wand: the Francis report had showed how bad care can be and the well-intentioned Liverpool care pathway failed: but.

“Those of us at the sharp end who care for terminally ill patients day in, day out know that the real work of assisting someone to die is not just something on a to-do list. It calls for good care, dedicated support and time, and not the quick fix of offering the medical equivalent of a loaded gun.”

Lord McColl of Dulwich (Con), formerly Professor and Chairman of the Department of Surgery at Guy’s and St Thomas’s Medical School, saw three dangers in the Bill: that one might create a society in which the vulnerable, the dependent and the weak believed that they had a duty to die, the risk that the bond of trust between the doctor and the patient would be weakened or destroyed and that the boundaries set by the Bill would prove to be logically unsustainable: the “slippery slope” argument. The safeguards in the Bill were inadequate.

Lord Harries of Pentregarth (CB), former Bishop of Oxford, expressed his deep disquiet. He was worried that the Bill’s proposals would put people in a position where they would “inevitably be tempted to seek an early way out, rather than become an increasing burden on those they love”. Secondly, if the Bill were passed, it was “absolutely certain” that its provisions would be extended at some time in the future. Though Lord Falconer had stressed that there was no “slippery slope”,

“The rational case can be made for all the steps I have described, but that rational case is based on exactly the reasons behind this Bill: the overriding of personal autonomy over everything else and the desire or pressure to alleviate suffering at whatever cost.”

He believed in sticking with the present law and the DPP’s guidelines.

Baroness Campbell of Surbiton (CB), herself seriously disabled, is worth reporting verbatim:

“My Lords, I have fought for autonomy the whole of my life. I have fought for that for myself and for others. I do not want this Bill. First, I must declare a very important interest. This Bill is about me. I did not ask for it and I do not want it but it is about me nevertheless. Before anyone disputes this, imagine that it is already law and that I ask for assistance to die. Do your Lordships think that I would be refused? No; you can be sure that there would be doctors and lawyers willing to support my right to die. Sadly, many would put their energies into that rather than improving my situation or helping me to change my mind. The Bill offers no comfort to me. It frightens me because, in periods of greatest difficulty, I know that I might be tempted to use it. It only adds to the burdens and challenges which life holds for me.

However, it is not just about me. My story is echoed by the majority of disabled and terminally ill people in Britain today. Many of them are outside this House, protesting against the Bill. I urge your Lordships to go and talk to them. Many more will have written to your Lordships. Supporters of the Bill argue that there is a hard and fast distinction between terminal illness and disability. I can tell you absolutely that there is not. We, the folk this Bill claims to serve, know that. The Bill purports to offer choice—the option of premature death instead of pain, suffering and disempowerment—but it is a false choice. It is that of the burglar who offers to mug you instead. That is not choice. Pain, suffering and disempowerment are treatable—I have to believe that—and they should always be treated. My long experience of progressive deterioration has taught me that there is no situation that cannot be improved.

I have spent my life developing ways to prevent people in vulnerable situations feeling powerless and burdensome. They do get cajoled and do feel a burden, especially when they are at home with no one to come and assist them to go to the toilet and to have dignity. I have seen this transformation when people have been helped. Those whom society once saw as totally dependent have become active and valued human beings. I am afraid that assisted dying will bring back outdated beliefs that devalue disabled and terminally ill people, when we have tried so hard to get away from them. Small wonder then if some succumb to those beliefs and see premature death as the only answer. Small wonder if family, friends, doctors and others see it as their duty to support that goal. It appears easier, cheaper and quicker—and it is.

The Bill is motivated by fear and pity but as the greatest French novelist, Balzac, observed, “pity is death to us—it makes our weakness weaker still”. Death is seen as a release from pity, for both giver and receiver, but there are far better ways of responding. We must put our energy into providing the best support, be it medical, social, practical or emotional, to disabled people and terminally ill people. We are nowhere near there yet. Helping people to live with dignity and purpose must surely be our priority. Disabled people and terminally ill people do not deserve pity. They deserve so much better. The Bill has become a runaway train, and the more frightening because of that. Please let us pause and find ways to reflect further. The Bill is not the answer.”

Baroness Grey-Thompson (CB), Paralympic gold medallist, expressed herself “extremely worried” by the Bill. In essence, it would be licensing assisted suicide within the National Health Service. Moreover, it did not contain safeguards, only, initial criteria without detail as to how those will operate. Many disabled people were not terminally ill but many terminally ill people experienced some sort of impairment and there was a great deal of confusion around that.

“There is a myth that our lives are so tragic or painful that we must want to end them. Just this week I was told, ‘You must have wanted to kill yourself many times in your life’. No, I have not. I have experienced excruciating pain. When I was 19, I snapped a metal rod off my spine that came out through my skin, but I have never considered killing myself. The fact is, however, that many people expected that I would ask for that. What if those people were related to me?”

The Bishop of Bristol was concerned by the unintended consequences of the Bill, noting the views of   a Dutch ethicist, previously in favour of assisted dying, who said that the rise in the numbers in the Netherlands had been driven in part by some form of assisted death becoming the “‘default’ mode of dying for cancer patients”.

Baroness Royall of Blaisdon (Lab), on the other hand, a long-time supporter of Dignity in Dying, supported the Bill. She noted that the Supreme Court had recently asked Parliament to address the issue and felt that the House of Lords was the right place in which to do it. There had to be the strongest safeguards and most robust protection for the vulnerable; and though she was not persuaded by the “slippery slope” argument, it had to be explored in depth.

Lord Hameed (CB) suggested that “The clinical ban on ending life may not suit every patient all the time, but it is necessary if we are to be able to place our lives in the hands of doctors with confidence and without fear”.

Baroness Richardson of Calow (CB), a Methodist minister and past-President of Conference, said that there were different opinions within her Church, firmly held, “as there are between all churches, faith communities, the public in general and the medical professions”. As a Christian she believed in the sanctity of life as a gift of God to be used responsibly with respect and generosity for the good of others. However,

“When the Bible says there is, ‘a time to be born, and a time to die’ we are not passive players in that. We manipulate conception, we permit abortion, we interfere with the processes of birth and we postpone death by surgical intervention and drug therapy, yet we refuse to allow the means which are there to reduce the length of the dying process, even when days of suffering and distress are not alleviated by devoted care.”

She supported the Bill but saw the need for robust safeguards.

Baroness Butler-Sloss (CB) had not read the Supreme Court decision in Nicklinson as in any way supporting the Bill. What it said was that Parliament should look at the issue. The President of the Supreme Court had made the interesting point that the Bill would not help the applicant, Mr Nicklinson., or those most disadvantaged and crippled by serious disease or injury—for instance, those with locked-in syndrome. Moreover, she felt that that the safeguards in the Bill were utterly inadequate.

Lord Carey of Clifton (CB), former Archbishop of Canterbury, said that he regretted the shock he had given friends by his change of heart, “but how can I really repent of a decision that I believe more closely models and reflects God’s mercy and love?” He had the greatest admiration for the work of our hospices, but even the best palliative care did not meet all needs. Opinion polls showed that at least 80% of the British population think that terminally-ill adults should have the choice of an assisted death. That number includes many Christians who believe that being a Christian is quite compatible with supporting the Bill. When suffering was so great that some patients, already knowing that they were at the end of life, made repeated pleas to die, it seemed a denial of that loving compassion which was the hallmark of Christianity to refuse to allow them to fulfil their own clearly stated request—after a proper process of safeguards had been observed. “If we truly love our neighbours as ourselves, how can we deny them the death that we would wish for ourselves in such a condition?”

The Bishop of Carlisle contended that the Bill would destroy the balance, however precarious, in the current law on assisted suicide and in the guidelines that have been produced for its enforcement.

Lord Ribeiro (Con), past-President of the Royal College of Surgeons, speaking on behalf of the medical Royal Colleges said that they believed that the law as it stands should remain. The RCS had stated in 2011 that “The law as it currently stands should not be changed and no system should be introduced to allow people to be assisted to die. The college does not recognise any circumstances under which it should be possible for people to be assisted to die”. Likewise the Royal College of Physicians had stated on 16 July that it does not believe a change in the law is necessary. 77 per cent of members of the Royal College of General Practitioners opposed any change to the law. Finally the British Medical Association opposed legalising assisted dying.The debate highlighted the need for better and more widespread palliative care with a focus on individual patients’ needs rather than a focus on assisting a few to die.

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