Further parliamentary debate on assisted dying

On 6 March 2017, the House of Lords held a short debate on assisted dying. Baroness Jay of Paddington asked Her Majesty’s Government what assessment they had made of recent legislation on assisted dying in North America; and whether those laws provide an appropriate basis for legislation in England and Wales.

Background

Rob Marris’ Private Member’s Bill – the Assisted Dying (No. 2) Bill – was presented to Parliament through the ballot procedure on 24 June 2015 and given its second reading in the House of Commons on Friday 11 September, where it was defeated by 330 votes to 118 – a majority of 212, [11 Sep 2015 Vol 599(42)  Col 653]. In our report of the debate and subsequent reactions, we suggested “[d]espite Friday’s significant defeat of Rob Marris’ Private Member’s Bill, we believe that there will be continued pressure for the introduction of measures to legalize assisted suicide”.

Ahead of the debate on 6 March 2017, a House of Lords briefing was published which set out the law in Canada and selected states in the United States. It also provided an overview of the law as it currently stands in England and Wales, as well as a brief legal history of the changes and attempts to change it.

Contributions to Lords debate

Despite the recent consideration of assisted dying by Parliament in 2015, a significant number of their Lordships indicated their wish to speak in Monday’s  debate and as a consequence speeches were limited to one minute. A corollary of this was that speeches were restricted to short gobbets of information or comment, the more pertinent of which are reproduced below. The full debate is reported in HL Hansard, 6 March 2017, Vol 779, Col 1175.

Supportive contributions

Baroness Jay:

“[Col. 1175]…While the UK Parliament may have been inactive in the recent past, the international picture has changed significantly. This is particularly true in North America, where Canada and several important jurisdictions in the United States have passed, and indeed implemented, laws to enable assisted dying. Overall, these new laws bear a striking similarity in their provisions and safeguards to those proposed in the Falconer Bill.

…on 18 February, the capital city of the United States became the latest place to bring an assisted dying law quietly into effect, without, as far as I know, even a single presidential tweet. It is too early to judge how that will work in practice, but what surprised me was the calm acceptance which greeted its introduction. The same has been true in California, the most populous and diverse state in the union, where legislation was passed in 2015. Colorado followed suit in 2016, after a referendum in which 65% of the population supported the law change.”

“[Col. 1176] Canada’s Parliament also acted last year, with Canada becoming the first Commonwealth country to legalise assisted dying. The Canadian decision came after a constitutional ruling from its Supreme Court. There are some lessons in that experience for the British situation, and my noble and learned friend Lord Falconer will address those.

It is very important to note that all the lawmakers in the USA have closely followed the state of Oregon’s original Death with Dignity Act, which was introduced as long ago as 1997. The citizens of Oregon now have two decades of experience of the Act, and the most recent report shows, once again, the stability that has always characterised its practice of assisted dying. In total, 1,127 Oregonians have made this choice in the past 20 years, amounting to less than 0.19% of all deaths over the same period. Interestingly, in 2016, the number of assisted deaths fell slightly, from 135 in the previous year to 133. The original tightly drawn eligibility criteria have not been challenged or extended beyond the terminally ill, and there have not been proven cases of abuse. The argument that changing the law leads always to a slippery slope of rising numbers and looser guidelines has been shown to be wrong.

Interestingly, Oregon’s hospice movement, which in the 1990s was opposed to a change in the law, now acts to support end-of-life options. Palliative care there is very highly rated, as indeed it is in this country, but unlike in Britain there is no suggestion that palliative care may always be an alternative to an assisted death. More than 90% of the state of Oregon’s citizens who choose to end their lives are already enrolled in the hospice system and the vast majority of them die at home in comfort. That same kind of experience is reflected in the newer statistics from other states where monitoring is now in place”.

Lord Carey of Clifton (CB)

“[Col 1178] … For me the fundamental issue that underlies this debate is that of autonomy or, to put it differently, human rights which enable us as individuals to determine the manner of our own death. It was central to the argument of Kay Carter in Canada and Brittany Maynard in the state of California. It will, I dare say, be a central argument for the case launched in this country by Noel Conway. [See below]

As a Christian leader, although I acknowledge that I am out of step with my Church and mainstream Christian Churches, it is love and compassion together with personal autonomy that has led me to identify with this struggle. For all its claims, medical science cannot deal with many cases of intractable pain and suffering, and least of all the indignity that often accompanies them. The example of Canada and other countries shows that laws can be made that protect the most vulnerable and therefore halt the unnecessary prolongation of life which, for some, is not worth the candle”.

Contributions opposed to assisted dying

The Lord Bishop of Worcester

Government summary

The Advocate-General for Scotland (Lord Keen of Elie) (Con) [emphasis and links added]

“[Col 1186]…It remains the Government’s view that any relaxation of the law in this area is an issue of individual conscience and a matter for Parliament to decide, rather than one for government policy…since the Government have taken no policy position on the issue, we have made no assessment of such legislation in North America or elsewhere…while five states in the United States have adopted such legislation, 45, of course, have not. Indeed, the only example that has been in place for some years is that of Oregon. As the noble Baronesses, Lady Howe and Lady O’Loan, and the noble Lords, Lord Alton and Lord Carlile of Berriew, observed, there are issues surrounding the attempted development of the law in Oregon. As the Supreme Court said in the case of Nicklinson and Lamb, information from the few jurisdictions where assisted suicide is lawful is,

“sensitive to underlying conditions such as standards of education, the existence of long-term relationships between GPs and patients and other social and cultural factors, which are not necessarily replicated in the United Kingdom”.

So it does not necessarily follow that a law which operates effectively—allegedly—in another jurisdiction would provide an appropriate basis for such legislation in England and Wales.

We should remember that “assisted dying” is not a term that exists in law. It is shorthand for two distinct things; namely, assisting suicide and euthanasia.

As the law stands, there is no offence—or defence—of “mercy killing”; nor is there any statutory exception to the offence of encouraging or assisting suicide under Section 2 of the Suicide Act. That Act was amended in 2009. By amending the law, Parliament confirmed that an offence should remain in respect of assisted suicide. Whether the present general prohibition in Section 2 of that Act is incompatible with the right to a private ​life under Article 8 of the European convention was the central issue in the case of Nicklinson and Lamb, which the noble and learned Lord, Lord Falconer, referred to, in which the Supreme Court handed down judgment in 2014.”

Comment

The Advocate-General for Scotland concluded by stating:

“[Col. 1188] The legal, administrative, practical and resource implications of any change to the law in this highly controversial area are considerable. We cannot in the very limited time available this evening do justice to them, although I would observe in response to the observations of the noble Earl, Lord Glasgow, that we of course take these issues seriously. I have no doubt that the debate will continue in one form or another, in Parliament and elsewhere. In the meantime, I thank all noble Lords for their contribution to this debate”.

This seems likely to remain the parliamentary position; the Assisted Dying Bill (HL Bill 42) was given in First reading on 9 June 2016, although its second reading is still to be scheduled. Nevertheless, there are two on-going campaigns related to the debate. In February, the organization Compassion in Dying launched its campaign Make It Your Decision “to urge people to think about and record their wishes in an Advance Decision, should injury or illness leave them unable to make these decisions for themselves in future”. The Press Release notes that “Research released today finds a third worry about the care they’d be given in such a situation; a fifth worry they’d be given treatment they wouldn’t want”.

This campaign does not seek a change in the law, but encourages people to make a legally-binding Advance Decision. The importance of such a document was highlighted in Briggs v Briggs & Ors [2016] EWCOP 53 (20 December 2016) which addressed the application of s24 Mental Capacity Act 2005, Advance decisions to refuse treatment the case of Paul Briggs who had not made an advanced decision or lasting power of attorney. Rosalind English summarizes the case in her post, Sanctity of life v personal autonomy: Court of Protection.

The second campaign concerns Noel Conway, a man with terminal motor neurone disease is bringing a judicial review in a bid to change to the law on assisted dying. Supported by Dignity in Dying to instruct lawyers at Irwin Mitchell to seek permission for a Judicial Review on the grounds that the current laws contained in the Suicide Act 1961 are incompatible with Noel Conway’s basic right to be able to die with dignity.

Footnote

On Saturday 29 April, 10am – 5pm, the University of Cardiff has organized “Christian Perspectives on Death and Dying“, at the Quaker Meeting House, Oxford. A day of conversation, reflection and debate addressing: Advance decisions (‘Living Wills’); Providing/Withdrawing medical treatment; Assisted dying – legal, social and theological perspectives. See Poster