Therefore, much as I am uncomfortable with this whole process, it is better to have an independent, completely separate relationship between the patient and his or her circle of medical advisers. At least by introducing that independent element, one hopes that that crucial, sacred relationship can be preserved without let or hindrance.

Lord Alton of Liverpool: My Lords, I echo very strongly the remarks made by the noble Lord, Lord Empey, about the special and sacred relationship between doctor and patient. It is worth reminding the House of what the General Medical Council said unambiguously and robustly:

“A change in the law to allow physician-assisted dying would have profound implications for the role and responsibilities of doctors and their relationships with patients. Acting with the

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primary intention to hasten a patient’s death would be difficult to reconcile with the medical ethical principals of beneficence and non-maleficence”.

I agree with what the noble Lord said about relationships, but I also agree in particular with the importance of Amendment 68, in the name of the noble Lord, Lord Carlile, which is about the importance of independent safeguards. I will speak to it in a moment. I come from a region where Dr Shipman was a general practitioner. He was referred to by the noble Lord, Lord Carlile, in his opening remarks on this group of amendments. Hundreds of cremation forms were signed by doctors who were not Dr Shipman; they were signed and those patients went to their deaths. That is why we are right to talk in detail about the safeguards that I know the noble and learned Lord, Lord Falconer, wants to see incorporated in the Bill, should it proceed.

I am particularly enthusiastic about what the noble Lord, Lord Carlile, said about providing an independent element in this process. I think back to an exchange in a constituency surgery. The noble Lords, Lord Deben and Lord Empey, are right to remind the House that sometimes the exchanges one has on the ground as a local politician can inform the way we think about these moral and ethical issues, on the basis of human behaviour and human nature. Just after the Toxteth riots in Liverpool a man came to see me in my surgery about the death of his father. His father had divorced from his mother. They had lived in Germany and at the end of the war they went to Holland. After their divorce the mother and son came to live in England. After his mother died, the son wanted to be reunited with his father, whom he had not known since childhood. He went to Holland, only to find that, under the Dutch laws, his father, in a state of deep depression, had taken his own life.

What really distressed this young man was that he had a half-brother who had inherited all his father’s wealth and had given permission for his father’s life to be ended. That reminded me of something that the noble Baroness, Lady Cumberlege, said to us on an earlier occasion. I thought it a wry but very accurate remark. She said that where there is a will, there is a relative. There are profound implications. People can gain from these circumstances. That is why an independent element is so important.

One thing that has united the House is the sense we all have about public protection. For me it is the key question for whether we support the Bill or not. Public safety is the issue. Polling data have been referred to, but those data reduce massively to only 43% approval for a change in the law if people believe that public safety will be compromised. That is the issue that your Lordships have to deal with if the Bill is to go on the statute book.

Amendment 68 takes us to the point where we can have an independent overview of any decisions that are to be made. It builds on what the noble Lord, Lord Deben, said on how we assess the effects of any individual act in the context of society as a whole: how we look at the aftermath of these decisions.

We heard from the noble Lord, Lord Howard, about the role of the hospice movement in palliative care. I am a patron of a couple of hospices, I suspect

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like many of your Lordships. I know the wonderful work that they do, particularly on Merseyside, which I have been involved with throughout my political life. Every year at one of those hospices there is a walk of witness through the local community, where they raise significant sums of money. It costs a lot of money to keep those hospices going. However, for me, what is really wonderful about those walks of witness is the therapeutic effect that they have on all those who participate. It is a healing process in grief.

I accompanied my father in the last moments of his life. He had a healing moment, believing that he had seen his brother who, as a member of the RAF, had died in the Second World War. I do not know whether this was a near-death experience or whether it was accurate, but it certainly helped him. If he had been given a lethal injection earlier, he would have been denied that moment. I believe that the concept of a good death—the one that historically we have always treasured in this country—could be lost if we proceeded into the mechanistic view that authorised assisted dying would probably introduce. Therefore, for me, safeguards are important.

People have been talking of their own experiences during these debates. My father was one of five brothers who were in the Armed Forces. He was a Desert Rat. One of his brothers lost his hearing and took his own life after the war was over. I remember it even though I was very young at the time. It had a profound effect—a point made by the noble Lord, Lord Deben—on everyone in our family and it still has to this day. Therefore, the idea that these decisions are purely acts of autonomy and matters of private choice that have no effect on others is simply wrong. Indeed, it was your Lordships who said precisely that in 1994, when my noble friend Lord Walton of Detchant, who cannot be here today but who, in his 90s, still plays a very active part in the House, chaired the Select Committee in question. I know that the noble Baroness, Lady Warnock, has changed her mind since then but she has played a significant part in the debates around these issues over the years, and she, too, was a member of that Select Committee. The committee said:

“Individual cases cannot reasonably establish the foundation of a policy which would have such serious and widespread repercussions … 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. We believe that the issue of euthanasia is one in which the interest of the individual cannot be separated from the interest of society as a whole”.

I repeat:

“We believe that … the interest of the individual cannot be separated from the interest of society as a whole”.

I profoundly believe that. There is great wisdom in what the Select Committee said at that time. We have to weigh up that issue as we consider this and all the other amendments that will follow. Are we able to provide the necessary public safeguards? Are we sufficiently concerned about what will happen in the aftermath? And are we sure that we can proceed without safeguards such as the independent element that the noble Lord, Lord Carlile, is suggesting to your Lordships in this amendment today?

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Lord Singh of Wimbledon (CB): My Lords, I very much agree with the sentiments expressed by the noble Lord, Lord Alton, and I agree about the importance of total independence if we must go in the direction of this legislation. However, I still have great concerns about the direction in which we are going, especially in relation to independent capacity and settled will. In everything that we do we need to place ourselves in the position of the patient. Everything we do is influenced by those around us. A person suffering mentally or physically will undoubtedly be affected not only by the pain but by his or her view of what effects their disability is having on the lives of others. A desire not to be a burden can sometimes be induced by others, but little thought seems to have been given to that.

Equally, uncaring or selfish attitudes of others cannot but have an adverse effect on one’s desire to live. I fail to understand how a couple of doctors or even independent judges can know the finer points of a family’s interactions and what pressurises the individual to say, “I wish to end my own life”.

Then there are the wider effects not only on the family but on society as a whole of going in the direction of this legislation. What are we saying to future generations when we know that palliative care can do so much? However, I know that so much more has to be done to improve it. Only this week we had a report saying that only 10% of nurses felt that they were properly equipped to deal with end-of-life decisions and end-of-life care. We can do much more in this direction rather than taking the easy route, which sets a marker to future generations that says, “You can go in this direction, you can end life”. That is something that I personally find totally wrong.

1.30 pm

Lord Tebbit: My Lords, as I have listened, my mind has turned to the practice of those who may be seriously ill or handicapped in some way or another signing DNR—do not resuscitate—forms. Are they affected by these restrictions? Should we indeed be allowing DNR forms to exist? We do not ask whether the person who signs it is mentally competent to do so, nor do we involve the High Court or anybody else. Are doctors obliged to respect a DNR form? I am not quite sure—is anybody else here?

Lord Stirrup: Will the noble Lord accept—perhaps he will not—the proposition that there is a distinct difference between a doctor failing to resuscitate or withholding artificial support to life and actually participating in the taking of a life? That is why there is such a focus in this debate on the roles and responsibilities of those people. There is a difference of very great magnitude between that and the DNR case. Does he agree?

Lord Tebbit: My Lords, I entirely agree with the noble and gallant Lord. I think there is a distinct difference but I do not think that we should just go on, forgetting the existence of those forms or forgetting the role of the doctor in deciding whether or not to respect them. It is not an easy question to answer, always, is it?

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Baroness Finlay of Llandaff: My Lords, it might be helpful to the House if I intervene very briefly. The whole policy of cardiopulmonary resuscitation is being revised. The noble Lord, Lord Tebbit, has raised a very important point. Resuscitation can be a whole batch of treatments. Giving insulin to a diabetic whose blood sugar has gone dangerously high is resuscitative. Similarly, giving sugar if they are hypo is resuscitative. I would like to park resuscitation per se and focus on cardiopulmonary resuscitation, which is a specific intervention to try to restart the heart when it has stopped.

We know that the chance of that having any effect is exceedingly low when people are already dying of a disease. It is in those patients, where death is anticipated and accepted by everybody and is a natural process at the end of life, that the forms are there so that a nurse who does not know the patient, who has just come on duty and finds that they have collapsed, does not have to run down the corridor and get the trolley and so on. That is completely different from the person who collapses on the station and people, rightly, grab the defibrillator and attempt to resuscitate them, as has happened in your Lordships’ Chamber—gladly, successfully. We have a very good track record of resuscitation in this Chamber.

DNR forms are completely different because you are talking about a life that is coming naturally to a close. This Bill is about taking the decision to deliberately give lethal drugs, irrespective of how long that life may go on for, because, as we will come to in later amendments, we just do not know. I wonder if that helps the noble Lord.

Lord Tebbit: I think, my Lords, it does. It is a matter of whether it is a positive or a passive intervention. That is the distinction.

Lord Hussain (LD): My Lords, from day one, I was minded not to support the Assisted Dying Bill and made my views known to fellow Members of this House. However, I have listened to today’s debate. My reasons for not supporting the Bill are my faith—everybody has their own faith and can choose whether to follow it—but also a personal experience.

Some 25 years ago, my father was critically ill. After he had been many days in hospital, I was told that he was going to die and that, if we wanted to take him home, we could. And we did. I was told that it could be a few hours, a few days, a few weeks or even a few months, but that he was on his way to dying and that there was nothing we could do to help him to live longer.

In the condition that he was in, I was feeling my father’s pain. I would do anything in my control at that time to help him, but I could not. However, when we took him home, he surprised not only me but the doctors and everybody else. Not only did he pull through that situation but he is still alive. He is nearly 90 now. I am glad that this Bill was not approved at that time and that we did not have the ability to assist him to die, otherwise we would have helped to kill a person who is still alive after 25 years.

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Lord Hunt of Kings Heath:My Lords, perhaps I may ask the noble Lord, Lord Carlile, a couple of questions. On his Amendment 67 and the question of independent medical experts, I think that it is right to say that in our first debate we reached a pretty satisfactory conclusion on the capacity of the courts to deal with these issues if the Bill was enacted. However, the noble Lord will know that sometimes the availability of medical experts can be problematic and I wonder whether he has given some thought to the issue of their availability.

The second question is about the connection between that amendment and Amendment 68, which provides that each report that was submitted to the court by the medical expert would be submitted also to the chief coroner, who would determine whether an inquest should be held into the death of the applicant. Could the noble Lord clarify the purpose of that amendment? Is it intended in effect that the chief coroner is almost put in a position of second-guessing the original decision of the court or the advice of the medical examiner? It would be helpful if he could clarify a little more his purpose.

Lord Carlile of Berriew: I am very glad to answer the noble Lord’s two questions. To the first, there is a very straightforward answer: I do not anticipate any difficulty whatever. The medical profession will prioritise like the rest of us when needs must. So far as the chief coroner’s role is concerned, I anticipate the chief coroner receiving not only the independent expert’s report but possibly other representations and determining whether an inquest should take place in a particular case. I anticipate that there would be very few cases anyway if the recipe that I have proposed was brought into effect and I doubt that there would have to be any inquest in those cases. However, we have to keep open the possibility of an inquest, and it is much tidier to have the chief coroner decide whether there should be an inquest than, for example, to have judicial review proceedings arising as a result of the complaints of affected persons. I think that these are both very quick routes to deal with simple issues that might arise.

Lord Faulks: This has been another useful and well informed debate, following on from the first group. I do not think that it is necessary for me to add anything from the point of view of the Government. The noble Baroness, Lady Finlay, made a particularly helpful clarification about DNR notices. The difference between DNR and DNACPR is probably insufficiently understood and I think that the House is grateful for that clarification. One final thing I should say, in responding to what the noble Lord, Lord Davies, said about legal aid, is that nothing I said about exceptional funding, I am glad to say, was wrong, it having been reviewed. However, as yet no assessment has formally been done on availability to cover this situation. I am sure that the House will understand that.

Lord Falconer of Thoroton: I understood that. I do not think that the noble Lord, Lord Faulks, suggested anything to the contrary in his previous answer. We went over quite a lot of this ground in the first debate.

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Like the noble Lord, Lord Faulks, I agree that this has been a useful debate in a number of respects. However, the key point in the debate is the factor added by the judicial model proposed by the noble Lord, Lord Carlile. In addition to provisions required to ensure that the person has a firm and settled view and that he or she has the mental capacity, there is an additional very significant requirement—namely, that to refuse an order would amount to a breach of both Article 3 and Article 8 of the European convention.

In effect, the noble Lord, Lord Carlile, is suggesting that the judge should make a judgment about the quality of the life of the person who has applied and, in particular, whether the quality of life of the person applying in effect constitutes torture, inhuman or degrading treatment. Only when satisfied of that can the judge make an order under the proposal of the noble Lord, Lord Carlile. I totally reject that approach as being inconsistent with the essence of the Bill, which is subject to appropriate safeguards. It is not for a court to make that sort of judgment; it is for the individual. The purpose of the court’s involvement is to ensure that there has been no undue pressure and no lack of capacity in reaching that conclusion; it is most certainly not to make the sort of judgment that the noble Lord, Lord Carlile, suggests. That was my understanding from the way in which the noble Lord put his case in the first debate and it is my understanding that the House has rejected that approach.

Lord Carlile of Berriew: My Lords, first, I am grateful to all noble Lords who have participated in what I think has been a high-quality debate lasting something like 1 hour and 20 minutes—a debate that I suspect almost everybody in the House would agree has not been marked with any frivolity whatever.

I reject what the noble and learned Lord just said. I am not proposing that the court should make a judgment of the quality of the person’s life. That is a caricature of what I am suggesting. I, and those who support these amendments, suggest that there should be an assessment of the quality of the decision that is made by the individual, which is quite different. Yes, it should be at a high bar. We deliberately set the bar high and we do so on conscientious and ethical grounds. Of course, I acknowledge that the noble and learned Lord, too, has conscientious and ethical grounds for his viewpoint.

Those of us who lie in the bath or climb out of the shower at 7.45 in the morning are fortunate to hear the wise vignettes of the noble and right reverend Lord, Lord Harries, and the noble Lord, Lord Singh. We get our bonuses in this House, as we have enjoyed moments of real wisdom from both of them this afternoon, as we do fairly regularly on Radio 4. I am grateful to the noble Lords, Lord Empey and Lord Alton, for highlighting the issue about introducing some independence into this decision-making process.

Indeed, I have in my hand a press release issued yesterday by the senior public affairs adviser, David Knowles, acting on behalf of the British Medical Association, of which the noble Baroness, Lady Finlay, is president. As I understand it, the BMA represents all doctors in one form or another. It states:

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“Legalised assisted dying could have a profound and detrimental effect on the doctor-patient relationship, even where doctors’ involvement is limited to assessment, verification, or prescribing”.

That was only one of its grounds. The noble Lords, Lord Empey and Lord Alton, answered that point. The noble and gallant Lord, Lord Stirrup, added to that observation by saying that, if we were to introduce the amendments, we might get the medical profession to participate in the process, rather than being opposed to it. In our reflections before we may have to vote at Report stage, if there is one, that point should be taken into account.

1.45 pm

I am sure that the whole House was taken by the speech of the noble Lord, Lord Hussain, which related to one of a number of personal experiences that the House has been able to enjoy in dealing with this difficult issue over the years. What marked out the debate for me was the opportunity to hear the thoughtful speech of the noble Lord, Lord Deben. He raised three elements: speed, rigour and a manageable aftermath. I would like to add one element, which is safety. My amendments would deal with the three key elements that he mentioned, plus would ensure that we have safety, which most certainly is not ensured under the noble and learned Lord’s Bill.

The noble Lord, Lord Deben, also made the powerful point, which I strongly endorse, that we should be able to talk about death much more frankly than we do. We celebrate birth, but we do not look at death in anything like the same context, although it is just as powerful a part of our family lives. Those of us who have enjoyed—I use that word deliberately—deathbed experiences know what an extraordinary effect, as described by the noble Lord, Lord Deben, they can have on the whole family. I have enjoyed two in particular. I recall that the night before my original mother-in-law, who was a wonderful woman, died, she instructed me to go to a particular cupboard and remove a bottle of vintage brandy, of which I knew nothing. The family stood round and drank a toast to her in her presence. She died the following morning beside us in a bed as the family was eating breakfast. Those were experiences that celebrated her life, and her grandchildren talk about it frequently.

We seek through the amendments to produce a system which has speed, rigour and not just a manageable but a very positive aftermath and which is safe. The reassurance of that safety is through the menu of propositions for management by the court. I greatly admire the noble and learned Lord, but I earnestly entreat him before Report—we are of course willing to talk to him—to consider those elements, because they have not been sufficiently covered in the Bill. With that in mind, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab): I must advise the Committee that if Amendment 4 is agreed, I shall be unable to call Amendments 7 to 11 for reasons of pre-emption.

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Amendment 4 agreed.

Lord Carlile of Berriew: My Lords, in speaking to this group of amendments, I propose to short-circuit a number of them and draw the Committee’s particular attention to Amendment 65, which stands in my name and in the names of the noble Lord, Lord Darzi of Denham, and the noble and right reverend Lord, Lord Harries of Pentregarth.

This is about capacity. There is an awful lot on the Marshalled List today relating to capacity. There is hardly a Member of your Lordships’ House with an interest in the Bill who has not had a stab at producing a good capacity provision. We have proposed this capacity provision because we do not believe that Clause 3 goes anything like far enough. There are two particular aspects of Amendment 65 which go further than Clause 3 and which, I suggest to your Lordships, would provide significant reassurance. I would be really disappointed if we were brushed off, in the way in which we have been, in relation to these amendments and in respect of the two particular matters.

I draw your Lordships’ attention to paragraphs (a) and (d) of the proposed new clause in Amendment 65. In defining capacity, we talk about a,

“capacity commensurate with a decision to end his or her own life”,

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thereby highlighting the importance of the decision. In paragraph (a), we then suggest that it should be required that it should be proved that a person,

“is not suffering from any impairment of, or disturbance in, the functioning of the mind or brain”,

then come the additional words,

“or from any condition which might cloud or impair his or her judgement”.

For those of us who have taken an interest in mental illness over, in some of our cases, decades and studied the subject in detail, there is a real concern that if those words or something like them are not included then people may determine that their own lives should be ended as a result of a mental condition of a permanent nature, which is easily defined as such, or by a temporary medical condition.

I am an absolute rank amateur in that I think I know a bit about mental health but it is as a layperson. I know that there are people in this House—I can see at least one present—who have a great deal of expert knowledge and are internationally admired for their knowledge about mental health. Of course I defer, as the House quite rightly deferred earlier to the noble Baroness, Lady Finlay, on palliative medicine, to any such views on the precise diagnostic criteria. What is known—it is certainly known to lawyers because we have had to deal with this all the time during our careers—is that there are manuals of diagnostic criteria. One which I am accustomed to is an international document, ICD-10, which contains the details of many different mental conditions. Among those volumes there are mental conditions which could cloud or impair a person’s genuine judgment, making it a judgment that was led by that mental condition and not by a person’s general state. When mental illness occurs in a family—there will be people in this House who have had this experience—it can be very frustrating for the rest of the family because they know that the individual in question is not exercising an objective or genuine judgment but, worse still, not exercising what is in reality their own normal, rational judgment, which when they are not suffering they possess. That is the purpose of paragraph (a).

Paragraph (d) requires it to be shown that the person,

“is not the subject of influence by”—

that is in the Bill—

“or a sense of obligation or duty to, others”.

Almost all those of us who have been fortunate enough to have our parents survive to a very great age will have heard that parent saying, “Oh, I shouldn’t be doing this to you because there’ll be less for you at the end”, or, “I’m causing you immense trouble because you have to come 200 miles across the country when I have a small crisis”, or, “You’re paying people to look after me”, and so on. We all know these scenarios; they are extremely common. They happen all the time, sometimes even in the best regulated families. Those are situations in which not all, but some, feel a sense of obligation or duty to die—“You’d be better off without me”. In my view, it is a matter of simple ethics—if ethics are ever simple—that we should not be willing

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to countenance any person choosing to end their own life because they feel that that is going to benefit others.

Baroness Warnock (CB): My Lords, why is it thought wrong for someone to ask to die out of a sense of duty or a wish not to continue in a condition that is intolerable—the condition of being disruptive, indeed often destructive, to the well-being of their own family? All the way through their life until this point, putting their family first will have been counted a virtue, and then suddenly, when they most want to avoid the trouble, bother, sorrow and misery of disruption to their family, they are told they are not allowed to follow that motive. I simply find this extraordinarily puzzling and I would like the noble Lord to explain it to me.

Lord Carlile of Berriew: People with much less strength of character than the noble Baroness, who is known for her views and her enormous strength of character, are at risk of those feelings being adopted, condoned and co-opted by their family. Those of us who have practised law for many years have come across such cases. Indeed, there will be people who have observed it in the lives of friends and family. It is our view that a sense of obligation—“It would be better for my children if I were carried away”—is not a sufficient basis for allowing an individual to do what is anticipated by the Bill, which is deliberately to end the life of another person.

Lord Alton of Liverpool: My Lords, I am grateful to the noble Lord for giving way.

Lord Ashton of Hyde (Con): My Lords, I think it is usual not to intervene before the noble Lord has moved the amendment.

Lord Carlile of Berriew: I believe that I moved the amendment right at the beginning of my speech, so I am very happy to give way to the noble Lord, Lord Alton.

Lord Alton of Liverpool: I am grateful to the noble Lord. I was aware that he had moved the amendment. On the point about the pressure that can be placed on people to take decisions that they might involuntarily be asked to take, does he agree that the “right to die”, as it is sometimes described, can easily morph into a duty to die? I understand the point made by my noble friend Lady Warnock. However, I recall that in 2008 she made the point that you can become a burden to the National Health Service if you have something such as dementia and then you can become a burden to society. I am personally disturbed by the idea that we place on people’s shoulders the idea that somehow they are a burden not just to their families but to the rest of us as well.

Lord Carlile of Berriew: I agree with the noble Lord. Indeed, there is a very slippery slope from saying, “I feel an obligation to my family or the NHS” to it being said, “Well, we have to deal with people

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who are an obligation to their family or the NHS”. The safety that this provision would introduce into the system is, in my view, very important.

Lord Beecham: Before the noble Lord sits down, for the third time he has referred to a person ending the life of another person. Will he concede that that is not a description of what the Bill sets out to permit?

Lord Carlile of Berriew: I do not concede that for one moment. The purpose of the Bill is for a person to be put in the position of facilitating the death of another person in circumstances in which that death would not otherwise occur. It seems to me to be a distinction completely without a difference. Indeed, if one were to analyse it as a matter of criminal law, there is no difference. I beg to move.

2 pm

The Deputy Chairman of Committees: I must advise the Committee that if Amendment 5 is agreed to, it is not possible to call Amendments 7 to 11 for reason of pre-emption.

Lord Mawhinney (Con): My Lords, I was interested to note, subsequent to putting down this amendment, that it covers similar ground to Amendment 65, to which the noble Lord, Lord Carlile of Berriew, has just spoken. I should start by saying that my amendment is an addition to his Amendment 5. No one should assume from it any implication that I am dissatisfied with that amendment as far as it goes; I just took the view that it does not go far enough.

If noble Lords read my amendment, what will strike them is that I am suggesting that there should be a second written declaration, but I want to come to that at the very end because that is not the main motive for putting down this amendment. I read Amendment 5 a number of times with an intellectual itch that I could not quite resolve. There was something about it that I did not like, but I was not sure for some time what it was. I finally realised that it was the word “settled”. We use the word “settled” regularly in daily language, but it actually has two quite distinct meanings. It can be used to say that something is settled—I have thought about it, I have given it due consideration, and I have come to a view, so it is settled—but “settled” can also mean that a decision has been made from which there can be no variation, turning back or deviation. It was that second aspect that bothered me in terms of this Bill.

We all know examples of “settled” in everyday language. We probably all know a fellow and a girl who fell in love and announced their engagement, and it was all settled, and then one of them walked away before they got to the altar. I was just smart enough

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not to say to my constituents in Peterborough, “We don’t need to bother you at this general election because you voted for me last time and the issue is settled”. I knew that they would respond by saying, “Actually, Brian, a number of things have changed since we settled it last time, so we want to settle it again”. Bless them, five further times, they settled it. Closer to home, Governments settle things all the time. We call them government policy announcements, and they are settled, until a U-turn occurs.

I hope it is not too wearisome to your Lordships’ House if I add my name to the list of those who recite examples of experiences when we served at the other end of the corridor, because I know of very few aspects of human experience and behaviour that teach you more about people than being a constituency MP. I remember the day when a lady came into my surgery. She did not really want any help from me. She had to tell somebody that she had decided to get a divorce. She wanted some advice as to how to go about it, but what she really wanted was to tell me that what had once been settled was not settled anymore. I advised her to get legal advice from a solicitor. I do not know what other colleagues did, but it was my custom never to recommend a particular solicitor. Some weeks later she came back in floods of tears—she was in floods of tears before she saw me. When she had calmed down, she said, “It’s terrible. We got to the point where there was only one step to go in the divorce process. I told my solicitor that he was not to go that last step without consulting me, but I have been told by him this morning that he went ahead and I am now divorced. I do not want to be divorced. I have changed my mind, but I am divorced. What can I do?” Something that was settled that became unsettled then became settled in an entirely different manner.

The use of the word “settled” in this Bill bothers me. I have no problem about the person involved going through the steps set out in the Bill and coming to a settled view. That is fine. However, time will pass between the achieving of that settled view and the use of the lethal injection or whatever the cause of death might be. What happens in that period? Are we as a legislative body making an assumption that nothing of any significance is going to happen in that period which might call into question the settled nature of the settlement? I do not think we should make that assumption. I think we ought to be quite specific that whatever may have been settled earlier needs to be reaffirmed on the eve of the decision being implemented. There needs to be an opportunity for a second and final thought as to the seriousness and finality of what is about to take place.

I come back to the second written declaration. I could not put down an amendment for your Lordships’ consideration which said that we ought to redefine “settlement”. That would have been seriously boring and nonsensical. I put down one way in which settlement could be affirmed or confirmed, and that is that a second written declaration had to be undertaken 24 hours before the final event. Other noble Lords who may agree with me may have a better way of confirming what settled means than the option I have chosen.

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Lord Avebury (LD):I just want to point out that the individual concerned has the right to revoke the decision right up to the point when he takes the medication. In fact, 40% of patients in Oregon do so.

Lord Mawhinney: I am aware of the point that the noble Lord makes. On the other hand, I have a lingering concern that the pressure of family and events can create circumstances in which it is quite difficult for people to express that reservation if they feel they are being a burden. At Second Reading, I gave the example of my own mother and the last years of her life. I quite accept that that provision is there; I know it and welcome it. However, it does not go far enough. There is a judgment call to be made at the very end which nobody can escape, which has to be affirmed, confirmed and made. It is one last chance. That does not seem unreasonable given the substance and significance of what the legislation is about.

In my earlier intervention I sought to persuade the noble Lord, Lord Pannick, to defer his vote. He and the noble and learned Lord, Lord Falconer, exercised their rights absolutely; I have no complaint about that. They disappointed me, but they were perfectly entitled to do so. Let me therefore be explicit: I do not intend to push this to a vote today. I want to stimulate people to think about whether a settlement made some time ahead is a sufficient safeguard or whether it ought to be mandatorily reaffirmed just before the act takes place. I would like your Lordships to think about that. If my proposal finds favour, that is good and we can come back to it on Report. If not, I am interested in hearing other suggestions.

Baroness Richardson of Calow (CB): My Lords, on Amendment 65, on capacity, it is hard to imagine how anybody who has just been told that they have less than six months to live, and who is in such pain that they do not want to continue living, should have absolutely no impairment or disturbance of the mind. This must be part of the condition—but I am not convinced that it would necessarily cloud or impair their judgment. When a person gets close to death, it clarifies the mind rather than clouds it, and gives them much more of an incentive to make decisions that will affect them in a very real way.

On the sense of obligation or duty to others, at the risk of sounding too much like a Methodist minister, there used to be in our Methodist hymnbook a hymn which started:

“Rejoice for a brother deceased;

Our loss is his infinite gain”.

There are occasions when people, feeling not just a duty to others but a delight and a joy in leaving behind a mortal body in order to find a fullness of life—which some of us already experience—will want to do so at the moment of their death.

Baroness Butler-Sloss: My Lords, I will speak to Amendments 66 and 84, since I understand that I cannot speak to Amendment 9. Before I do so, I have one point about Amendment 6 of the noble Lord, Lord Mawhinney. I am not terribly happy about it. The written declaration in Amendment 5 of the noble

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Lord, Lord Carlile, ought to be adequate. We have to bear in mind that we are talking about people, according to the wording of the Bill, who have either six months to live or, if the noble Lord, Lord Carlile, is right, three months to live. To expect a second declaration in addition to a first, when one would expect the first declaration to have been seriously considered before it was signed, is probably a step too far and would, in my view, probably be unjust to a patient.

On Amendment 66, I need to explain to the House why on earth I am producing another amendment on capacity. There are three reasons. One is that I am not happy with the word “commensurate”. This is a highly technical point, for which I apologise, but speaking as a lawyer the Mental Capacity Act 2005 talks about capacity. Nowhere, to my knowledge, is any word attached to “capacity” to explain it. One of the most important areas of capacity is the capacity to make a will. Perhaps it is not as important as the capacity to live or die, but it is certainly of great significance to lawyers and to those who witness a will. You should not use the word “commensurate” for a will, and neither should you use it for this matter we are now discussing. However, that is a technical point.

2.15 pm

I will make two other points on my amendment. First, I say in proposed new subsection (2):

“Unless the attending doctor is satisfied”.

I am asking for the doctor to be satisfied—for it to be an onus on him to be satisfied that the person has capacity. Unless he is absolutely satisfied, he cannot go ahead. I hope that using the word “satisfied” would place quite a heavy burden on the doctor. I understand the point made about “the nearer you are to death”, but some people are in deep depression and want to make a decision in that state of depression, when their mental processes may not be entirely coherent. That is why I would want one to be quite certain—to be satisfied—that the person is not in depression, does not have some other mental illness, and is not under the influence of drugs or anything else like that, and therefore to put the onus on all doctors to a greater extent than it otherwise might be under the wording of the Bill.

The second point, which is covered by proposed new subsection (6), is on appropriate training. Every doctor—and obviously the psychiatrist, if it ever gets to a psychiatrist—will have that training. However, as I understand it—of course, I am not a doctor—there are modules for training doctors in various other aspects which are not their particular expertise. I suspect that we are talking here largely about general practitioners, who will be the attending doctor, and the independent or second doctor. It would be very important for each of those doctors to have adequate information, at least at a primary stage, to understand what pointers they should be looking for when they are judging the capacity of a patient who is asking that doctor to assist them to die. I do not think the requirement for at least some training before they make that decision is to be found anywhere else in these amendments.

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Lord Tebbit: Perhaps the noble and learned Baroness can help me with that question of capacity. There are some elements, such as depression, which come and go at various levels. A depressed person may sometimes have capacity and sometimes not. An alcoholic may not have capacity but, on the other hand, he may have it when he sobers up for a while. The same applies to a drug addict, who may or may not have capacity according to how much he has taken. I find that rather difficult to judge against the more permanent and unchanging stages of capacity and incapacity; for example, in a patient with Down’s syndrome, whose capacity would be limited but probably more or less unchanging, or somebody in the later stages of Parkinson’s disease, where that mental capacity was beginning to go but could only get worse. I am a little puzzled as to how one would make the decisions between those varying states.

Baroness Butler-Sloss: If I may be anecdotal, as other noble Lords have been, my mother died of multiple sclerosis in her early sixties. There was a point at which I, as a young lawyer, realised that she no longer had, in my view, the capacity to make decisions. However, that was at a very late stage of her illness.

If the doctor is not satisfied because someone is a drug addict or has been an alcoholic or has, for instance, a high degree of anorexia as a young person and is saying that they want to die, those are points at which a doctor should be saying, “I’m not quite certain whether he or she has capacity”. That is why I suggest in my amendment that, unless they are satisfied, they should pass it on to someone who has the expertise, who would then, as a psychiatrist, look at whether the person actually has the capacity. Okay, we are talking about someone with three to six months to live but, if they do not have the capacity to make this incredibly important decision, they should not be allowed to do so. That is how I would see it, in answer to the noble Lord, Lord Tebbit.

Lord Winston: I thank the noble and learned Baroness for giving way, but would she not agree that sometimes people who have capacity and say that they wish to die, as indeed my mother did, may then change their mind some months later, quite unexpectedly?

Baroness Butler-Sloss: Yes, that seems to me to present one of the problems with the Bill.

Lord Griffiths of Burry Port (Lab): My Lords, may I offer something at this stage? The ground has been well worked in the past and I have here some of the hearings that took place 10 years ago, when we discussed this matter. The whole question of the psychiatrist was raised then. Again and again, in discussing competence, it is the psychiatrist who seems to be claiming that someone lacks it. Making a judgment about people near to death is very difficult. Some 25% to 40% of patients at the time of diagnosis, and a similar percentage at other times on the cancer journey, suffer from depression or despair, but those conditions can be reversed. It depends on when you take the decision. Indeed, a neurologist suggested that in some conditions

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the whole issue of cognitive impairment must be taken note of. For example, patients to the lay person might appear relatively normal but could have severe cognitive impairment and therefore be unable to give informed decisions in such an area.

The training is not just for the people that these provisions have in mind. Once we move the debate, as we have consistently through this day, into the hands of experts, we are removing from ourselves the recognition that the experience of death and dying belongs as much to the non-experts as it does to the experts. With great timidity, I have stood up to speak at this moment, having heard in this morning’s debate from some of the leading lawyers and medical people in the land, and from people with a long experience of public life. I wonder whether it is true, for example, that a judge is, at the end of the day, the person in whom we can deposit all our confidence.

I remember the debates in my childhood that took place around the movement towards the abolition of capital punishment. You have a judge and a jury in that case, counsel for the defence and the prosecution, due process and forensic evidence—justifiable or not. You have the whole process of the law brought to bear on one case and one person, guilty or not guilty. The reason we went forward to abolish capital punishment was because of the possibility of an error of judgment—that with all that happening we might have got it wrong. As a simple lay person, I simply want to say that in this area it is infinitely more likely that we might get it wrong. It is for that reason that I stand against this Bill: because of the high possibility of getting it wrong, even when judges and the top medical people are involved.

My life sees me alongside dying people from first news to last rites and, indeed, beyond last rites—I have dealt with the people with whom one has to deal when they feel that they have not done everything that they might have done for mum. These are unhealed wounds that pastoral people have to deal with on and on, beyond the moment of death.

To think of the autonomy of the person as if that alone constitutes where this debate centres is, in my experience, utterly wrong. Consequently, when I saw the amendment that refers to,

“capacity to make the decision”,

I wondered whether the capacity we were talking about was that which pertained to the decision-makers rather than to the person dying. This is an immensely complicated area and it seems to me that we must question these rather forensic points that are being made about the capacity of this person, that person or the other person. Death and dying are individual in every case, and sometimes a friend can do more good than an expert.

Lord Maginnis of Drumglass (Ind UU): My Lords, I have wondered at what stage I should intervene in this debate in so far as I am not a doctor or a lawyer. I find myself with the problem that life has not for me been exclusively about doctors and lawyers and those erudite few who can argue about other people’s lives. I hope that those who would try to persuade us that this Bill is a necessity for this so-called sophisticated age in

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which we live are able to understand that the majority of us live our lives on the basis of a moral code—it has never let me down in 77 years—where, collectively, we have least difficulty in finding ourselves able to coalesce in defence of what we usually refer to as the common good.

I get the impression that it is not fashionable to admit to a faith that is based on the 10 commandments but that there is a prevailing view of our times that favours—indeed, espouses—individual morality where there is no absolute right and no absolute wrong. It suggests that each individual has at a specific moment some inherent right to choose what falls within one’s own moral compass. Surely that is a selfish, if not arrogant, position that in this specific instance must toss us on the horns of a dilemma. Should we, from within this comfortable and privileged Chamber, acknowledge the established right and wrong in how we seek to protect the vulnerable, the elderly and those unable to protect themselves, or do we absolve ourselves by criticising those like the extremists in the Middle East, those who mutilate young women through FGM or abortion doctor Kermit Gosnell as they comply with the tenets of their own moral compass?

All I have to say, because I am not a lawyer or a doctor, is that we can decide to look the other way, to pass on the other side, or we can show the compassion and the responsibility of the good Samaritan, however inconvenient that may be to those who would turn our lives into a philosophy that is questionable, contradictory and argumentative.

Baroness Murphy: My Lords, I have two amendments in this group which I wish to discuss briefly. I should say that I am an academic psychiatrist who practised in the community for many years. I have done more testamentary capacity cases than I care to remember, as I practised with elderly people for 30 years. Therefore, I reckon that I am as much an expert on capacity as anybody in this House.

2.30 pm

Of course, the noble Lord, Lord Tebbit, is right to say that people change their minds and the noble Lord, Lord Mawhinney, is right to say that a settled intention does not always remains settled. There are ample provisions in the Bill and, of course, within the code of practice whereby we would want to ensure that people had the opportunity. Nevertheless, as the noble Lord, Lord Avebury, so eloquently and briefly said, if someone changes their mind right up to the minute they are to take that drink of killing medicine—let us say it—until that very moment, the choice is theirs. In Oregon and in Washington state, we know very well that about 40% of such patients do not take it. They go on to receive hospice care and palliative care. That is their choice.

Lord Tebbit: My Lords—

Baroness Murphy: Can I just finish my points? Essentially, of course the capacity issue is one that doctors deal with every day. As the noble Baroness, Lady Hollins, has often pointed out, they are not very

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good at it unless they are specifically asked to do it. That is a crucial point. There is a difference between a doctor just ticking a box and those who have to say they are there to assess capacity. In this Bill, they are there to assess capacity. Should we have a “supercapacity” category? Should we ask for a solicitor? That would make it extremely difficult for the patient who would have to clear yet another enormous hurdle. It would be too much.

I have discussed this with the Royal College of Psychiatrists. There are, in fact, three fellows of the Royal College of Psychiatrists in this House; one is against the Bill while two of us are supportive of it. That indicates how most of the royal colleges are split. It is not that there is a split between those doctors who are for and those who are against, in the way that the BMA describes it. The BMA has never asked its members; it would not risk it. The Royal College of Physicians is consulting again but, in fact, most of the royal colleges are now neutral on the issue.

I suggest that we look seriously at how we can strengthen the Bill in relation to capacity as it is described at the moment. If those doctors who are not specialists in capacity, as happens now in relation to many decisions, have any doubt whatever, they should be able to refer to a specialist—a psychiatrist who specialises in capacity. I will sit down for a moment.

Lord Tebbit: I am grateful to the noble Baroness, because she has launched herself off into dealing with an argument that I did not make. She misheard what I said. I was not talking about people changing their minds. We all do that at times. I was talking about people whose capacity was changing. That is an entirely different argument, and it would help if she dealt with the argument I made, not with the argument she would like me to have made.

Baroness Murphy: I am happy to apologise to the noble Lord, Lord Tebbit. Of course people change in their capacity. The way in which the Bill is phrased and the way in which the code of practice needs to be devised must take account of people’s changing capacity. I accept that completely. The noble Lord is right; people change in their capacity.

Amendment 54 adds a provision in the Bill that a patient should be referred to a specialist if there is any doubt in the minds of the attending consulting physicians on the patient’s capacity. That safeguard is in the Oregon legislation and is worthy of being put in this Bill. It could easily be put into the code of practice also, and that is where those of us who originally were concerned about the Bill had in mind for that provision to go. However, if people would feel more reassured that it should be in the Bill, I would support that. We must get away from the notion that doctors somehow do not understand capacity or use it. They do so every day of the week—not always perfectly but sufficiently to this end. We cannot expect that people should have a sort of supercapacity over and above what is generally accepted by the courts.

This issue was given a great deal of thought during the creation of the Mental Capacity Act, but ultimately the way that Acts are implemented has to depend on

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the way that codes of practice are devised. That is where the professions must come in: to help us and to tell us what they would like and what people think. To take a very good point made by the noble Lord, Lord Griffiths of Burry Port, this is not just an issue for doctors to decide; it is about other people coming in to say what the code of practice would look like and what lawyers, relatives, indeed all of us would think was an appropriate level of mental capacity. It will, of course, be extremely high and quite different from testamentary capacity, where the test is quite low.

I propose that we support Amendments 54 and 59, but I do not support the amendments at the beginning of the group.

Lord Mackay of Clashfern: My Lords, technically speaking this is a debate on Amendment 6, which was moved by the noble Lord, Lord Mawhinney. Some of the observations that have been made are not very clearly directed to that. All the same, I will talk about one of them.

The amendment in the name of the noble Lord, Lord Mawhinney, is best dealt with by Clause 4(2)(c): that the doctors administering the poison are to be sure that they have confirmed that the person has not revoked and does not intend to revoke their declaration at the last minute. As has been said, the patient has the last word in this sense: they can stop the injection if they do not want to have it at that point. If they have changed their mind following the declaration, there is ample safeguard in the Bill against any, as it were, forced injection.

I will say one thing on the intervention by the noble Baroness, Lady Warnock. As I understand it, if we bring children into the world we have responsibilities for them. Those responsibilities should not be regarded as burdens that are somehow affected by the Bill. It would be extremely dangerous to take the view, for example, that a disabled child should feel responsible for the care responsibilities that they put on their parents. If that child thinks that there is an obligation to die, because it is the only way to remove that obligation from their parents, then that is a most dangerous doctrine. In view of what the noble Baroness, Lady Warnock, said, I felt that that was something that needed to be put on record.

Baroness Hollins: My Lords, I believe we are debating the whole of the group, although I do agree with the noble Lord, Lord Mawhinney, that the assessment of capacity and settlement of the decision needs to be done at the moment that that decision is finalised. I do not think that the other amendments in the group are rigorous enough. My Amendments 71 and 151 have three main elements. I am drawing on my experience as a psychiatrist working with disabled people—in particular people with intellectual disabilities—and of teaching medical students about the assessment of capacity for more than 30 years.

The first element to which I want to draw attention is that, in consideration of any request for assistance with suicide, positive action is taken to establish that there is no evidence of mental disorder. The second

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element is the need to establish the presence of a decision-making capacity that is commensurate with a decision of this nature, as has already been suggested by my noble friend. Thirdly, the amendments propose a regime for ensuring that clinical opinions about the absence of mental disorder and the presence of decision-making capacity are taken on the basis of expert assessment.

There are in England and Wales two circumstances when a person is not permitted to make healthcare decisions themselves. One is when they lack mental capacity in relation to the relevant decision. The Mental Capacity Act 2005 applies to many decisions but assistance with suicide is explicitly excluded. Other noble Lords will explain more about decision-making capacity and the findings of the recent post-legislative scrutiny Select Committee of your Lordships’ House which examined this Act and of which I was a member.

The other circumstance when people are not permitted to make healthcare decisions for themselves is when they suffer from a mental disorder of a nature or degree that warrants, for assessment under Section 2, or makes it necessary, for treatment under Section 3, for the person to be in hospital in the interests of their health or safety or for the protection of others. If a person was depressed or anxious and wished to kill themselves, they would normally be stopped from doing so with the authority of the Mental Health Act 1983, so the additional assessments that I am suggesting in this amendment should relate not only to impaired judgment but, first, to whether the person has a mental disorder.

I remind noble Lords that the definition of mental disorder is,

“any disorder or disability of the mind”.

The psychiatrist making such an assessment must be Section 12 approved, as required by the Mental Health Act. The Mental Health Act is risk based, not capacity based. If it is in the interests of his health, a person with a mental disorder can be detained and treated. It overrides personal autonomy. The Mental Health Act does not require any impairment of judgment or decision-making capacity to be present.

If you have a mental disorder then, whether you are capacitous or not, you will not be given assistance to die. The Mental Health Act would take precedence and the person’s mental illness would need to be treated effectively before any assessment of their decision-making capacity was made. Therefore, the Mental Health Act provides another safeguard.

As I read the Bill, nothing would stop patients detained under the Mental Health Act, if they retained decision-making capacity, from being given medication to end their life. That is clearly wrong. I shall go further: it relates not just to patients who are already detained but to those who, if assessed, would meet the criteria for detention in order to treat their mental illness.

Wishing to end one’s life is a common symptom of mental illness, normally regarded as constituting grounds for psychiatric assessment. Suicide itself is not unlawful but, as a society, we regard suicidal intent as a reason to protect a patient from self-harm. We do not take the view that we should intervene in a case of suicidal

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intent only if we have reason to believe that the person concerned lacks capacity; we assume that a person who announces or otherwise indicates intent to take his or her own life is not acting rationally, and we do everything possible to discourage or prevent him or her proceeding. That is what all the suicide watches and all the suicide prevention strategies that successive Governments have introduced in recent years are about. Indeed, the national confidential inquiry into suicide and homicide, NCISH, which I chaired from 2007 to 2010, was set up to inform clinical practice and health policy with a view to reducing suicide rates.

The noble and learned Lord’s Bill makes it clear at Clause 6 that it is seeking to amend the Suicide Act 1961. Some may not see the provision of lethal drugs to a seriously ill person as assistance with suicide but in law that is what it is. This leads me to conclude that the Bill is out of alignment with social attitudes to suicide.

The Assisted Dying Bill also fails to provide a strong enough assurance that a person requesting assisted suicide has the mental capacity to make this decision. Capacity assessment must be decision-specific. The more serious the decision, the greater the level of assurance required that the person making the decision has commensurate capacity; that is, a level of capacity appropriate to the decision in question. The key purpose of my amendments is to ensure that there is mandated, at least in outline, a proper process for establishing the absence of mental disorder and for taking positive action to ensure the presence of commensurate capacity.

2.45 pm

Therefore, my proposed steps for establishing the absence of mental disorder and the presence of capacity are as follows. The attending doctor who is assessing a request for assistance with suicide must first be personally satisfied that the person making the request is not mentally disordered and has a level of capacity commensurate with this life-or-death decision. If the doctor is satisfied, he must refer the person for confirmation of this view by a specialist.

Some may ask why I have not chosen to follow Oregon’s model of requiring referral for a specialist opinion only in cases of doubt, as proposed by my noble friend Lady Murphy and others. The question might be asked that if the attending doctor has a concern about a potential mental disorder, surely he would ask for an assessment, would he not? If he thought there was a serious mental disorder, surely he would seek to use the Mental Health Act, would he not? But research has demonstrated that many doctors are poor at recognising depression and lack knowledge on how to assess for its presence in terminally ill patients.

Depression is a subtle condition, frequently gaining an insidious foothold in many people with physical illness and many people who are disabled, thus hugely influencing their psychological processes. Studies in terminally ill patients have clearly shown that depression is strongly associated with a desire for a hastened death, including the wish for physician-assisted suicide or euthanasia. This is true for the top three diseases for which patients request physician-assisted suicide—

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cancer, motor neurone disease and HIV/AIDS—yet even when it is recognised, doctors often take the view that what is sometimes diminished wrongly as understandable depression cannot be treated, does not count or is in some way not real depression.

However, research shows that when depression is detected and treated effectively with medication, psychotherapy or other psychosocial support, most—98% to 99%—will subsequently change their minds about wanting to die. That is an extraordinary statistic, and patients with pre-existing mental illness who then develop a terminal physical disease may receive substandard treatment for psychiatric relapses after requesting assistance to die because doctors struggle to recognise relapse and the need for psychiatric clinical care. The difficulties of spotting depression in terminally ill patients mean that assisted dying will put such people at risk.

According to a large independent study by the Royal College of General Practitioners, 77% of GPs are opposed to a change in the law, so it will be a minority of doctors doing the majority of assessments—doctors who know nothing about a patient beyond their case notes. We know that GPs and physicians are slow to refer to psychiatrists. It seems very unlikely that they will refer, despite our new discourse about parity for physical and mental illness.

There is evidence that Oregon’s regime of referral if needed just does not work. Independent research has revealed that some people in Oregon who have ended their lives with legally supplied lethal drugs had been suffering from clinical depression, which had not been detected by the assessing doctors and had not been referred for specialist assessment. We do not want that happening here. Psychiatrists do not want to see members of their own patient group being let down by the lack of a rigorous safeguarding process; nor do they want to be the gatekeepers, so they are in a bit of a double bind. It could work only if the assessment process was in support of a judicial decision-making process, such as that suggested by the noble Lord, Lord Carlile, and I suggest that the independent medical experts called for by him should always include a psychiatrist.

Problems of physical and mental health often coexist. As specialists who frequently work at the interface of such problems, psychiatrists are well aware of the effects of disempowerment, despair, fear of the future and fear of being a burden to others.

The declaration which the Bill of the noble and learned Lord, Lord Falconer, asks the doctor to sign states that the patient,

“has the capacity to make the decision to end their own life; and … has a clear and settled intention”,

to do so. That is a not a declaration that I as a doctor and a psychiatrist would be prepared to make without getting to know a patient, and I am not alone in this view.

The noble Lord, Lord Griffiths, asked whose capacity was in question. Research carried out in Oregon found that only 6% of psychiatrists felt confident that they could establish capacity for assisted suicide on the basis of a single consultation, yet this Bill does not require even a single consultation with a psychiatrist. So how many times do I think a psychiatrist should

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see the person? Since suicidality fluctuates, I propose for the purpose of this probing amendment that there should be two specialist assessments, spaced ideally at least 28 days apart, with offers of treatment for both depression and pain, so that there is time for suicidal ideation to abate. My concern here is to have assurance that all the relevant areas of psychopathology, especially those that may be difficult to explore and/or where highly specialised knowledge of psychopathology is required, are covered.

Medicalising assistance with suicide is a dangerous road to travel. The BMA is very clear that assisting someone’s suicide should not be part of any doctor’s job description. The 150,000 doctors represented by the BMA have a well established way of achieving consensus through their representative processes.

It is our duty to scrutinise this legislation to try to reduce risk to people who may be more vulnerable than us—indeed, I believe that this is our only responsibility today. I do not believe that this Bill is safe. These amendments are offered to the House to make it a little safer in the unhappy circumstance of it being passed into law. I certainly intend to return to this issue if there is a Report stage.

In case there is any room for doubt, I support the amendments proposed by the noble Lord, Lord Carlile, in this group and the previous group.

Lord Deben: My Lords, I did not intend to speak on this group of amendments, but two interventions lead me to do so. The first was that of my noble friend Lord Mawhinney, who I think is wrong. I do not think that his proposal is necessary. I think that the Bill covers that. What my noble and learned friend Lord Mackay pointed to in that part of Clause 4 is right. It is important that even those of us who are very unhappy about the Bill should be extremely careful not to be presenting things that might be seen as merely holding up or interfering with the process of the Bill. That is why I would not support that proposal. It was the intervention of the noble Baroness, Lady Warnock, which particularly caused me to feel that I should join the noble and learned Lord, Lord Mackay, in his conversation.

Lord Mawhinney: I am grateful to my noble friend for giving way. Would he be willing to accept that there is a difference between an option being available to someone and a requirement to make a decision being available to someone? I am disappointed that my noble friend implicitly accused me of trying to slow down the process when I was, obviously inadequately, trying to draw a distinction which seems to me to be important. The opportunity to be required to make a decision is different, almost in principle, from the option to make one. I hope that my noble friend might on reflection agree that that is a distinction worth considering.

Lord Deben: First, I agree with the distinction. Secondly, the criticism that I made was not of my noble friend but of myself. It was that I would not like to be accused of supporting something merely for the

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sake of supporting it because it was another part of the debate. That is why I felt it right to say that I did not support this in order that no one should feel that one was elongating. What I would say to my noble friend is very simple: within the Bill it is clearly necessary before the final act takes place for the person doing that act to assure themselves that there has been no change of mind. That is not an option; it appears to me from the Bill that that is a necessity. If it is not a necessity, we ought to make it one. The noble Baroness spoke of the guidance. It would certainly have to be very clear in the guidance. Given those things, I would not want to change it in the way that my noble friend suggests.

I return to the noble Baroness, Lady Warnock, with whom I have had fascinating and interesting discussions over many years. One of the issues that we have not so far considered, but I hope we all have in our minds, is the fear that particularly older people should feel that they are no longer of use when they are of use. Very often, when people say, “I ought to end my life because I am a burden on you”, the answer ought to be, “You are not a burden”. I have been very fortunate in my life because I have had the ability—I mean by that the size of accommodation—for my wife and I to look after both our sets of parents until they died. It was an enormous privilege. If you asked our four children, they would tell you that it was one of the most important parts, if not the most important part, of their upbringing—to be brought up with aged grandparents and, in one case, with a grandmother who had long lost the power of communication. They would all say that all four of them contributed greatly to them and to their lives. The worry I have of the thought that the noble Baroness put forward is that it reaches to the thing in this Bill that for me is the deepest unhappiness, which is that people should feel that they do not matter because they cause trouble and difficulty and are a burden on others.

One of the things behind all this that leads me to take time and to be concerned is the awful way in which this nation in particular treats its older people in general and the attitude we have towards them. Of course, I suppose at my age I ought to declare an interest. However, I intend to be around, like most of my relations, for very much longer. I hope I will not be a burden, but it is not for me to judge whether I am a burden. That is why I think paragraph (d) of Amendment 65 is so important. I do not believe that people should end their lives because they make a decision that they are a burden. I think that is one bit we have no capacity to decide in any circumstances, however mentally agile we may be. It is utterly impossible for any of us to make that as an objective decision. Therefore, to put this into the Bill is an important affirmation of our belief that a person, even in their last days, may, in fact, far from being a burden, be someone who makes a real contribution to the people around.

It is difficult not to, and I know that sometimes it could become maudlin, but we can speak only from our own experience. I, too, was with my father as he died. We were very close. He died as I said the words of the Nunc Dimittis. He clasped my hand and was gone. I think that his last fortnight of pain and his difficulty in coming to terms with a failed operation, making a

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decision that he would leave his death as it would come, has had a bigger effect than almost anything else. I do not think that he knew that; although I believe that he does now. However, I do not think that he was capable of saying that he did not matter and I think that we ought to protect people from being asked to make that decision.

3 pm

Baroness Masham of Ilton: My Lords, I support Amendment 71 in the name of my noble friend Lady Hollins. As in the case of those with terminal illness, we know that identifying depression is particularly challenging in some other groups, such as those with physical disabilities, intellectual disabilities or autism spectrum disorders.

Depression is more common in those with physical disabilities arising, for example, following a stroke, spinal cord injury or as a consequence of multiple sclerosis. Research shows that that is particularly so when factors including chronic pain, reduced mobility and poor social support are present. Identifying and treating depression and attending to contributory factors can improve both mental and physical health, but depression is difficult to detect in those with physical disabilities. That is because symptoms of the underlying disability can overlap with symptoms of depression—for example, fatigue, lack of interest in previously enjoyed activities, difficulties in sleeping and emotional lability. Depression can be missed by doctors who are not experienced in assessing mental disorders in the context of physical disabilities. Specialist assessment is often required.

Similarly, people with autism spectrum disorders may have characteristics such as social withdrawal, impaired communication and sleep and appetite disturbance which can mask symptoms of depression. Depression often manifests differently in those with intellectual disabilities compared to the general population.

Furthermore, detecting mental disorders in people with autism or intellectual disabilities, as well as assessing their mental capacity to make specific decisions, requires an understanding of their communication needs and how they may differ from the general population. For example, some people with intellectual disabilities may find it easier to communicate using pictures rather than words; others may demonstrate acquiescence, or a tendency to repeat the last words spoken to them. A doctor who has not had experience of or training in assessing mental disorders and mental capacity in people with autism or intellectual disability may be unable to identify the presence of disorders such as depression and may struggle to optimise the person’s decision-making capacity. Again, specialist assessment is vital.

Those vulnerable patient groups are not adequately protected by the Bill as it stands. That is even more reason to introduce a process to make specialist assessment of mental disorder and end-of-life decision-making capacity mandatory. Disability is very complicated, and everyone is an individual.

Baroness Grey-Thompson: My Lords, I speak in favour of the amendment tabled by my noble friend Lady Hollins. I felt, coming into the Bill, that I needed

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a much deeper understanding of mental capacity because my only personal experience of dealing with psychiatrists and psychologists goes back to when I was 11 years old. I have to thank my noble friend Lady Warnock for that because of her incredible work on special educational needs. At the time, I was not allowed to go to a mainstream school and my only gateway into it was going through mental capacity tests.

I have read so much on this but one article that I found stood out to me. It was written, I accept from a very particular point of view, with reference to Herbert Hendin MD, who is CEO and medical director of Suicide Prevention Initiatives. He is also professor of psychiatry at New York Medical College. He stated in congressional testimony in 1996 that,

“a request for assisted suicide is … usually made with as much ambivalence as are most suicide attempts. If the doctor does not recognise that ambivalence as well as the anxiety and depression that underlie the patient’s request for death, the patient may become trapped by that request and die in a state of unrecognized terror”.

The article also said:

“Most cases of depression … can be successfully treated …Yet primary care physicians are … not experts in diagnosing depression. Where assisted suicide is legalized, the depression remains undiagnosed, and the only treatment consists of a lethal prescription”.

We have heard a lot about the difficulties of diagnosis. My noble friend Lady Hollins mentioned the 6% of doctors who are confident that they can diagnose depression. If we look at the figures from Oregon, which the Bill is based on, back in 1998 31% of patients underwent psychiatric evaluation. In 2003-04 it was 5%, and in 2007 no patients underwent psychiatric evaluation. There is the case of Michael Freeland, who for 43 years had diagnosed mental health issues and suicidal tendencies—this was all recorded. He was able to obtain the drugs.

Several studies have shown that incidences of psychiatric illness, particularly depression, are linked to 30% of people with a terminal illness. We have to make sure that these safeguards are included. In my mind, we must make sure that anyone who wants to go down this route has to be evaluated in a clear manner by people who understand mental capacity.

Viscount Colville of Culross (CB): My Lords, I have put my name to Amendment 66 because, as I said at Second Reading, I am concerned that there are not sufficient safeguards in the Bill to ensure that the mental capacity of the terminally ill person has been correctly assessed.

In subsection (2) of the proposed new clause, the emphasis is on the doctor not to countersign the declaration of intention,

“Unless the attending doctor is satisfied that a person requesting assistance to end his or her own life has the capacity to make”,

that decision. I listened carefully to what my noble friend Lady Hollins said about psychiatrists not necessarily being brought in. However, I should like to think that we can rely on the professionalism and training of our doctors and that if they were in any doubt at all, they would call in a psychiatrist to make this assessment to reach that very high level of satisfaction that the patient has the mental capacity.

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The requirement to call in a psychiatrist if the doctor is concerned about the person’s mental capacity was included in the original Bill of the noble Lord, Lord Joffe, but is not in this Bill. As my noble and learned friend Lady Butler-Sloss said, subsection (2) of the proposed new clause points out that the person should not be,

“suffering from any condition, including … depression”,

which could impair his or her judgment. Recent medical evidence has revealed that the presence of depression in terminally ill patients is much higher than in other patients. In a report in the BMJ, Prevalence of Depression and Anxiety in Patients Requesting Physicians’ Aid in Dying, the authors investigated terminally ill patients in Oregon who requested aid in dying and found that more than 50% met the criteria for depression or the criteria for anxiety that they were depressed. Depression can leave a person with unchanged mental capacity; it can also radically change a person’s mental capacity. There was rather a good article in the Journal of Clinical Oncology entitled “Euthanasia and Depression: A Prospective Cohort Study Among Terminally Ill Cancer Patients”, which discovered that the risk of requesting euthanasia for patients with a depressed mood was 4.1 times higher than that for patients without a depressed mood.

This amendment would put the onus on the doctor assessing the mental capacity of a patient to bring in a psychiatrist if they were at all concerned about this condition. Proposed subsection (3) seeks to set out the criteria for the psychiatrist who is going to be involved. The 2005 mental capacity committee heard from Dr Geoffrey Lloyd of the Royal Free Hospital’s department of psychiatry that in more complicated cases only liaison psychiatrists have the expertise to assess a patient’s mental capacity correctly. The report said:

“There was a general consensus among our expert witnesses on one point—that the attending and consulting physicians who are envisaged as being effectively the ‘gatekeepers’ in regard to applications for assisted dying could not be expected to spot impairment of judgement in all cases”.

Proposed new subsection (4) asks for the psychiatrist also to be satisfied that the person making the request has the capacity to make the decision to ask for assistance with dying. Patients can be very good at deceiving even trained psychiatrists about their state of mind and can appear to be capable when they are not. The same often appears with people who are suffering from dementia. Psychiatrists may need to make another visit, maybe a month or so later, to make a proper assessment of their capacity. I can quite see that this sort of period can make the delay too long for many terminally ill patients. My answer must be that the most important thing is to get the decision right. I hope that this amendment will do just that.

Lord Swinfen (Con): I support the noble Baroness, Lady Hollins, on her Amendment 71. Given the gravity of the decision to end one’s life, ensuring that a person requesting assisted death has the capacity to make this decision is of fundamental importance, yet the Assisted Dying Bill raises serious concerns about how decision-making capacity will be determined.

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Furthermore, I think that the Bill is inaccurate from a legal standpoint with respect to the assessment of mental capacity. The Mental Capacity Act 2005 states at its outset that:

“A person must be assumed to have capacity unless it is established that he lacks capacity”.

Section 62 of the same Act makes clear that,

“nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961”.

Yet Clause 12 of the Bill of the noble and learned Lord, Lord Falconer, states that,

“‘capacity’ shall be construed in accordance with the Mental Capacity Act 2005”.

The Mental Capacity Act for England and Wales has established the legal criteria to be met if a person is to be considered to lack capacity in relation to the matter in question. There is a requirement that,

“at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in, the functioning of, the brain or mind”.

Mental capacity must then be functionally assessed, as it is decision specific and time specific.

In the context of this Bill, the person must have the capacity to make the decision to ask for and, if offered, accept a medical intervention, the consequence of which is death. Given the criteria set out for decision-making capacity in the Mental Capacity Act, the person concerned would need to understand and balance knowledge of their existing medical condition and any potential treatments, and the likely benefits of further palliative care, and be able to communicate this choice, being fully aware that the consequence if the doctor agreed to carry out the procedure would be his death.

From April 2007, the Mental Capacity Act has provided the legal framework in England and Wales for substitute decision-making with respect to healthcare treatment when a person lacks the capacity to make relevant treatment decisions for himself. This can be helpful to people nearing the end of their lives. Lasting power of attorney for health and welfare allows decisions to be delegated to one or more attorneys of your own choice. You can also give your attorneys the power to refuse or agree to any medical treatment you may need to stay alive, if ever you are unable to make that decision. This is called an advance decision and is legally binding if the circumstances are the ones you specified. Any action taken must, under the Mental Capacity Act, respect valid LPAs and advance decisions to refuse treatment.

3.15 pm

In the absence of guidance from an LPA or advance refusal, actions taken must be in the patient’s best interests. The MCA is very specific in stating, under “Best interests”, that, with respect to life-sustaining treatment, such action must not be motivated by a desire to bring about death. Thus, vulnerable people with enduring incapacity to make this particular decision would be protected from physician-assisted suicide, as capacity is required under the Assisted Dying Bill and such action would not be acceptable under the MCA, as I understand it. The MCA is an enabling and much liked Act, which vulnerable disabled people look to

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with great hope because it has the potential to empower them and they do not want it annexed by legislators with a very different purpose in mind.

Few would dispute that a decision to end one’s life lies at the top end of any spectrum of gravity. It would be no exaggeration to say that, for anyone making such a decision, it is the most important decision of their life. It would not be sufficient therefore to authorise such requests simply on the basis that a doctor is satisfied that the person making the request has the capacity to make the decision. In a case such as this, it is necessary to require that the presence rather than the absence of capacity be established.

The amendment tabled by the noble Baroness, Lady Hollins, seeks to make clear that the assumption of capacity underlying the MCA—an Act which noble Lords will remember was not designed for this purpose—does not apply and that the process of assessing a request for assistance with suicide must include positive action to establish the existence of capacity commensurate with the gravity of the decision involved rather than simply that there is no reason to suppose that it does not exist.

Determining that a person has the capacity to make this particular decision is crucial, as it is a necessary and pivotal factor in deciding whether under the Assisted Dying Bill physician-assisted suicide can be considered. Research indicates that it would be inappropriate to take apparently capacitous requests for physician-assisted suicide at face value. If there is concern about the influences and motivations behind a request for assisted suicide, the action should not take place.

The responsibility for assessing a person’s decision-making capacity would, as the Bill stands, rest with the physician who would authorise the assisted suicide. It is all very well to say, as the supporters of legalised assisted suicide do, that capacity assessment is part of a doctor’s role. Yes, it is, but when doctors assess capacity, they do so with a view to protecting patients from harm, not to clearing the way for assisting their suicide. This Bill is proposing something outside the parameters of clinical practice and, in consequence, different procedures would be needed.

A really experienced, knowledgeable, sensitive doctor may do a very good job, but there are doctors and doctors. We know that the Care Quality Commission has major concerns about a significant number. I would not want some of those to make decisions of this magnitude in assessing a request for assisted dying made by one of my family.

Indeed, the recent report by your Lordships’ post-legislative scrutiny committee found that the Mental Capacity Act is not yet fully implemented, especially in clinical practice. Doctors have varying levels of competence in assessing decision-making capacity. Few understand how to assess capacity and many fail to recognise when a person lacks capacity.

In the context of the Assisted Dying Bill, the assessment of capacity must not be thought of as a brief exercise taking place at the end of the bed. Rather, great attention must be paid to how the capacity of a person making the decision can be optimised. Time can and must be spent undertaking this process, particularly

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given the consequence that, if the doctor agrees with what the person is requesting, the action that follows will result in that person’s death.

For a decision of such consequence, specialist assessment of end-of-life decision-making capacity should be mandatory. A myriad of factors, including pain, the effects of medication, feelings of being a burden and poor social support may affect a person’s decision-making. While clear diagnoses of psychiatric disorders which may affect decision-making, such as severe depression and psychosis, may occur, more frequently judgment may be coloured by mild depression, mild cognitive impairment and subtle pressure from others. Particular skills will be needed by those required to identify these psychiatric issues in assessing a person’s end-of-life decision-making capacity in this context.

If Parliament decides that this Bill should become law, a very high standard of expertise will be required by those involved. They must ensure that those requesting physician-assisted suicide clearly had the capacity to make such a request. If they were considered to have this capacity, the nature of the psychological processes that led them to make such a decision must have been properly explored and documented.

Yet the Bill as it stands does not provide for mandatory specialist assessment of decision-making capacity. It leaves it all to the attending doctor to decide—usually a GP who will almost certainly have had no psychiatric training. I gather that, until recently, many medical schools taught no psychiatry at all. The Bill’s supporters argue that there will be codes of practice to guide doctors on how to go about making these assessments—

Lord Faulks: My Lords, I am reluctant to interrupt the noble Lord, but the noble Lord will see the time.

Lord Swinfen: I am sorry; I did not hear what the noble Lord said.

Lord Faulks: I suggested that he look at the Clock.

Lord Swinfen: I have only a very short while to go.

I have no problem with codes of practice and I would expect that, if the amendment in the name of the noble Baroness, Lady Hollins, or a similar amendment is accepted, there will be a need for detailed procedures to be included in codes of practice to give effect to it. We cannot in this House agree to legalise assistance with suicide simply on the basis that others will decide what safeguards there should be. We need to see and to approve at least the outlines of those safeguards before we can responsibly take decisions on changing the law.

Lord Alton of Liverpool: My Lords, I support Amendment 65 and Amendment 71 in the name of my noble friend Lady Hollins. I also support what the noble Lord, Lord Swinfen, has just said. I thought that he made some incredibly important points. We are dealing with capacity, depression, burdensomeness and the ability to communicate. The last point made by my noble friend Lady Masham during her intervention is one that the movers of the Bill need to take very seriously.

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I draw the attention of noble Lords to an Early Day Motion tabled in another place earlier this year. It deals with some of the points in these amendments and states:

“That this House notes the results of the Washington State Death With Dignity Act Report 2013, published on 10 June 2014, which concludes that the number of deaths through physician-assisted suicide has tripled since the first year of implementation and increased by 43% between 2012 and 2013; expresses grave concern that 61% of those who received lethal drugs in Washington in 2013 gave as a reason for seeking assisted suicide being a burden on family, friends or caregivers; recalls that those who introduced the law in Washington assured the public that it would only apply to terminally ill, mentally competent patients; and reiterates its belief that a corresponding change in UK law would endanger the lives of the most vulnerable in society”.

I agree with the sentiments expressed in that Early Day Motion. As the debate continues in the country at large, I hope that we shall have the chance to hear more voices from those who have been elected and who have had direct contact with their constituents.

It is not just in the state of Washington where we have seen things change from often good intentions—I pay tribute to the noble and learned Lord, Lord Falconer, whose motives in this I have never doubted—so that what comes out at the end is not always so. I draw the attention of the House to the comments of Professor Theo Boer in Holland, who said:

“I used to be a supporter of the Dutch law. But now, with 12 years of experience, I take a very different view … Pressure on doctors to conform to patients’ (or in some cases relatives’) wishes can be intense”.

He admitted that he was,

“wrong—terribly wrong, in fact”.

He had changed his mind. Since 2008, the number of assisted deaths in Holland has increased by about 15% every year, maybe reaching a record of 6,000 a year. It is worth pointing out that the law there changed at first simply by turning a blind eye—then voluntary euthanasia was introduced and then involuntary euthanasia. About a quarter of the deaths in Holland every year now are involuntary—that is, without the consent of the patient. These are the facts that we must consider as we consider whether or not we are putting sufficient safeguards in the Bill to safeguard the most vulnerable.

The noble Lord, Lord Deben, was right to point to the often fragile existence that many elderly people have. I saw figures recently that suggested that around 1 million elderly people do not see a friend, relative or neighbour during an average week: toxic loneliness. It is assisted living that we need in this country, not assisted dying. We need people who can help people in that kind of situation.

We have all experienced depression. Winston Churchill experienced the black dog. Depression is prevalent in many of our large urban communities. Certainly, in the areas that I represented, it was not heroin—although you saw heroin on the streets—it was antidepressants on every shelf of every home that you went into in the high-rise blocks, cluster blocks and spine blocks, where people were forced to live in depressing situations. That is why I was not surprised by the remarks of the noble Baroness, Lady Hollins, with all her experience as a former president of the Royal College of Psychiatry.

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I was not surprised to hear what she had to say, but I was particularly struck by a report published in April of this year by Price, McCormack, Wiseman and Hotopf. They said:

“Before mental capacity can be placed so centrally as a safeguard in the process, discussion needs to take place about what exactly is meant by the term ‘mental capacity’ in the new Assisted Dying Bill”.

The Bill does not require any treatment for depression, although it proposes in Clause 8(1)(a)(ii) that there should be a recognition of its effects on a person’s decision-making. It is not clear what that would mean in practice. Would it mean that a patient would have to receive treatment or a psychiatric assessment, or be refused altogether? There simply is no clarity on that key point.

I also draw the House’s attention to the evidence given to the noble and learned Lord’s own commission when it considered the issue of capacity and judgment back in 2006. It said that,

“in the context of such a serious decision as requesting an assisted death, the Commission considers that a formal assessment would be needed to ensure that the person concerned had capacity. The evidence given to the Commission made it clear that there are a number of factors that might affect an individual’s mental capacity, including temporary factors caused by physical or mental illness, and more permanent impairments such as a learning disability. It would be important that such factors were identified and that an assessment was conducted to explore whether the subject’s decision-making capacity was significantly impaired … the Commission does not consider that a person with depression, whose judgement might be significantly impaired as a result of this depression, should be permitted to take such a momentous decision as ending their own life”.

I know that the noble and learned Lord still holds to that view. I commend it to the House.

Lord Avebury: Does the noble Lord prefer the situation that exists at present, in which several hundred unassisted suicides of terminally ill people take place every year?

Lord Alton of Liverpool: The noble Lord is right—and every one of those deaths is a tragedy. That is why I said that we have to intervene to assist in living, providing unconditional care, support and love. Simply to provide opportunities for people to take their own lives does not seem a wholesome or good way for this country to proceed. I have known the noble Lord for a very long time and I know that he would not support that either. Let us therefore be careful not to institutionalise what he rightly says already takes place. Just because something happens is not a good reason to make it legal or more easily available. That is why I support these amendments.

3.30 pm

Lord McColl of Dulwich (Con): My Lords, can we have some clarity about the length of speeches? Several speakers have been interrupted by comments that they have gone on too long. I understood that the recommended speaking time was a maximum of 15 minutes for each speech—or am I wrong?

Lord Newby: The noble Lord is correct.

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Lord Hunt of Kings Heath: My Lords, I sense that the House would like to make some progress. I will put a simple point to the Minister. He will know that the issue of capacity is clearly critical to our consideration of the Bill and he will have heard that we have had a number of amendments that seek referral on the question to a psychiatrist or other appropriate specialist. The noble Baroness, Lady Hollins, raised issues about the interconnection between the provisions in the Bill and the Mental Health Act and the Mental Capacity Act. My simple request to the noble Lord—and I do not suggest that he does it from the Dispatch Box—is that the Government help noble Lords with their analysis of the interrelationship between the two Acts and the Bill. That would be very helpful for the next stage of the Bill.

Lord Faulks: My Lords, it is a fundamental principle of the Bill before us that a person seeking assistance to end his or her own life should have the capacity to make such a profound decision. That is at the centre of the Bill and why it has taken up so much time—quite appropriately—in the course of this debate. Some of the amendments in this group seek to include capacity among the eligibility criteria in Clause 1. Noble Lords may see some merit in that approach, albeit that the issue of capacity is addressed in Clause 3.

It is clear, however, that your Lordships are concerned to ensure that sufficient safeguards are in place properly to assess a person’s capacity to make these very difficult decisions. It is of course right, as has been observed during this debate, that capacity can vary over a period of time and that assessment can be complicated where a person has both a physical and a mental illness. We have heard in particular how depression can be both difficult to diagnose and can fluctuate. Therefore, several assessments over a period of time may be necessary adequately to assess capacity. That leaves aside the question of a change of mind, on which certain noble Lords were somewhat at cross-purposes. However, it nevertheless remains an important issue, the answer to which seemed to be given, I respectfully suggest, by the noble and learned Lord, Lord Mackay, which is that the reversibility of the decision is covered by Clause 4(2)(c).

On the question of mental capacity and the relationship between the Mental Capacity Act and the Bill, my noble friend Lord Swinfen correctly reminded us that the Mental Capacity Act presumes capacity. However, that Act emphasises that capacity is issue-specific. As I understand it, the purpose of the Bill is to identify the particular issue in order for it to be determined whether the individual has the capacity to make that particular decision. What we are asking here is: are there adequate safeguards to enable that decision and the capacity to make it to be adequately assessed?

I will of course consider the point made by the noble Lord, Lord Hunt, about trying to give further guidance. However, at the moment I am not convinced that there is any tension between the Mental Capacity Act and what the Bill does. Whether the House generally considers that the safeguards are adequate is a different matter and one on which there can reasonably be debate.

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However, it is clear that there are differences of view about who should carry out the assessment, how many people should do it and whether there needs to be input by more than one person across a range of professions. Psychiatrists, of course, have been identified as key in this, but social workers are also experienced in assessing whether coercion or duress is being brought to bear. Increasingly, they are being asked to carry out capacity assessments for the Court of Protection, and they also play a leading role in safeguarding a person who may be at risk of harm from family or friends. The noble Baroness, Lady Hollins, was right to emphasise the importance of an assessment of the absence of mental disorder being critical when considering capacity. Your Lordships will have to reflect on whether there is a need for specialist assessment of capacity beyond that being carried out by the attending doctor and the independent doctor and, if so, what the requirements should be.

Finally, your Lordships may think that the noble Lord, Lord Griffiths, was right when speaking not altogether flippantly of the capacity of decision-makers to remind us that there is fallibility in experts just as there is fallibility in judges.

Lord Falconer of Thoroton: I am obliged to everyone who has taken part in this important debate. Capacity is central to the Bill. May I indicate how the Bill operates, so that we can then address the question of whether the safeguards are sufficient? I completely agree with the analysis given by the noble Lord, Lord Faulks, as to what the question for us is.

What the Bill requires before the prescription can be given is that the attending doctor and the independent doctor have separately examined the person and the person’s medical records and each, acting independently, must be,

“satisfied that the person … has the capacity to make the decision to end their own life”.

In addition, as a result of Amendment 4, which was made this morning, a justice of the High Court of Justice sitting in the Family Division must confirm that he or she is satisfied that the person has the capacity to make the decision to end his or her own life. Capacity is defined by reference to the Mental Capacity Act, in Clause 12. The noble Lord, Lord Faulks, is right in saying that that gives rise to no tension; how it operates is that, in considering whether the individual has capacity, the doctors and then the court ask themselves whether that individual has a sufficient degree of understanding and judgment to take this obviously very momentous decision. That means an understanding of what the decision is and what its consequences are. That is how the law defines capacity; it is a matter to be considered on a case-by-case basis.

Are the safeguards sufficient? The amendments identify a number of possibilities. First, I take the amendments proposed by the noble Baroness, Lady Hollins. She suggests that there must be a psychiatric assessment in every single case. That should be so, she says, even if the two doctors are satisfied and the judge is satisfied. Then there is the Butler-Sloss/Colville amendment, to call it so colloquially, which says that

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only when you are not sure and there are doubts do you make the assessment. The Murphy amendment also says that only if you have doubts should you have a psychiatric assessment.

My own view on this, although I need to consider it very carefully, is that if you have any doubts at all you could not be satisfied, whether you were the doctors or the court. In those circumstances, you might think that the case was much too doubtful and stop it straightaway, or you might have doubts because you do not know and are not qualified enough, so you should refer it to a psychiatrist. Like the noble and learned Baroness, Lady Butler-Sloss, the noble Viscount, Lord Colville of Culross, and the noble Baroness, Lady Murphy, I am not inclined to say that you have to get a psychiatric assessment in every single case. In my judgment, there will be cases where it is clear that there is no psychiatric element involved and it is the right thing to do because of the particular circumstances —and the idea that someone has to get a psychiatric assessment may look, on the facts of the case, wholly inappropriate.

My inclination is to consider the amendment proposed by the noble Baroness, Lady Murphy, as the right one. I also need to consider whether one needs to put in the Bill the sort of process that I have indicated, which reflects to some extent the approach of the noble and learned Baroness, Lady Butler-Sloss, and the noble Viscount, Lord Colville. On the basis of the debate that we have had, I think that is the right way to go but I will reflect on what has been said and consider the extent to which this needs to be in the Bill.

I ask noble Lords to remember that, subsequent to their tabling their amendments, the Pannick amendment, if I may call it that, has come in, so a judge will consider this issue. He or she will consider not just whether the right process has been gone through but will have to be satisfied—it is a primary question of fact for the judge—that the person applying to get the prescription has the capacity to make the decision, so you have that final safeguard. If the judge is not satisfied or thinks that a psychiatrist should be involved, there is the protection. I suspect that we should adopt something along the lines of the Butler-Sloss/Murphy approach. The question asked by the noble Lord, Lord Mawhinney, was answered by the noble and learned Lord, Lord Mackay of Clashfern. If the noble and learned Lord says what my Bill means, I accept his comments readily and enthusiastically.

The noble Lord, Lord Carlile, drew our attention to proposed new paragraphs (a) and (d) of his Amendment 65. As I understand proposed new paragraph (a), you cannot be satisfied that the person has capacity if he or she is,

“suffering from any impairment of, or disturbance in, the functioning of the mind or brain … which might cloud or impair his or her judgement”.

Again, I think that is going too far. What happens if someone has a brain tumour that might impair their judgment but the doctors are satisfied that that person’s decision to take their own life is one that they have reached completely aware of all the circumstances? To take another example, suppose someone is depressed

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because they are going to die imminently but the doctors and the judge are satisfied that, although the person is depressed, which might be an appropriate response to what is happening, they are absolutely clear that that is what they want to do. Therefore, I think that the amendment goes too far. Proposed new paragraph (d) of the amendment states that the capacity of an applicant,

“is not the subject of influence by, or a sense of obligation or duty to, others”.

With respect, I do not think that comes under “capacity” at all because capacity is about whether someone can make a judgment. A person can be completely able to make the judgment and conclude that they hate being dependent on other people. You might think that that is inappropriate and be guided by what the noble Lord, Lord Deben, says, but you certainly have the capacity to do it, so, although we should consider this under other headings, I honestly do not think that is a capacity issue.

The noble and learned Baroness, Lady Butler-Sloss, indicated three other points. First, she did not like the word “commensurate”. I have not used that word; it was the noble Lord, Lord Glenarthur—take it up with him. Secondly, she was keen—in my view, rightly—that the word “satisfied” should be used, as it is in her amendment. The requirement for the two doctors is that they must be “satisfied”. The requirement in the amendment of the noble Lord, Lord Pannick, is that the judge must be satisfied, so I agree with her and I think that that point has been met. Her third requirement was that of training. Under the Bill, the second doctor has to be an independent doctor who is,

“suitably qualified if that doctor 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 am sympathetic to the noble and learned Baroness’s point and I think that it would be appropriate for certain training requirements to be met before you can be an independent doctor in this context. Therefore, I hope that I have dealt with her point.

I have dealt with Amendment 54 in the name of the noble Baroness, Lady Murphy. As regards Amendments 71 and 151, the noble Baroness, Lady Hollins, made a point that I had not seen reflected in her amendments but I am sure that is my fault—that is, what is the position of somebody who has been sectioned under the Mental Health Act 1983? I have assumed that they would not have capacity. It is not specifically raised as I read any of her amendments. However, I will need to consider that important point. My immediate assumption is that, if you are sectioned, you could not possibly have the capacity to make this decision but we need to look at the position in relation to that.

I have dealt with all the specific points made on the amendments. The debate was fascinating, moving and gripping. One of the great temptations in these debates is to veer off from the amendment, because we are all so gripped by this subject, and go into issues that are slightly off piste. I know it is done with the best motives but I am keen that the Committee should give everyone’s amendments a proper shot. I am trying

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to be disciplined. I ask very respectfully, because the amendments are fascinating, can we try to focus a bit more on the amendments?

Lord Mawhinney: My Lords, while reserving the right to return to this subject on Report, for now I beg leave to withdraw my amendment.

Amendment 6 (to Amendment 5) withdrawn.

Amendment 5 withdrawn.

The Deputy Chairman of Committees (Lord Brougham and Vaux) (Con): As Amendment 4 has been agreed, Amendments 7 to 11 cannot be moved, due to pre-emption.

Amendments 7 to 11 not moved.

3.45 pm.

Lord McColl of Dulwich: My Lords, my first concern about the Bill is the risk that has been already mentioned —that one might create a society in which the vulnerable, the dependent and the weak believe that they have a duty to die. My second concern is the risk to the doctor-patient relationship and the fact that the current approach of the medical team is to care and never to kill or assist in killing.

I have therefore tabled Amendment 12 with the noble Lords, Lord Browne and Lord Morrow, to add two new subsections to Clause 1. The Explanatory Notes to the Bill say of Clause 1:

“This clause would enable a person who is terminally ill to request and be given assistance to end their own life. The process is dependent upon a request being made by the person concerned and no other person, including the patient’s doctor, family or partner would be able to initiate the process of requesting an assisted death”.

We agree that should the Bill become law, it should be the person himself or herself who is making the request. Indeed, the commission of the noble and learned Lord, Lord Falconer, said on page 29 of its report that,

“we do not envisage that it could ever be appropriate for health or social care professionals to offer assisted dying as an option; only the patients themselves should be able to initiate a conversation about assisted dying”.

On page 43 of the Explanatory Notes accompanying the draft Bill, published by the All-Party Parliamentary Group on Choice at the End of Life in partnership with Dignity in Dying, it states:

“While doctors would be free to discuss other aspects of end-of-life care, only the patient themselves could initiate a conversation about assisted dying–a doctor could not suggest it and a relative could not make the request to a doctor on behalf of the patient”.

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I fully agree with the sentiment behind these statements, but as far as I can see, there is nothing in Clause 1 as currently drafted to prevent the doctor initiating the discussion with the patient. There is nothing in the Bill that sets out the safeguard that a doctor cannot suggest that a patient should consider assisted suicide or that a family member could not have an initial conversation with the doctor.

I am operating on the premise that everything is legal unless it is illegal. The claim that only the patient can initiate the process seems unsustainable. I am sure that there are noble Lords who think that I am scaremongering here. However, on the basis of what has happened in Oregon, it seems unrealistic to assume that a doctor will not suggest assisted suicide as an option if the law is changed. A letter from an Oregon resident in 2011 set out how she overheard her doctor suggesting assisted suicide to her husband. She said:

“When my husband was seriously ill several years ago, I collapsed in a half-exhausted heap in a chair once I got him into the doctor’s office, relieved that we were going to get badly needed help (or so I thought).

To my surprise and horror, during the exam I overheard the doctor giving my husband a sales pitch for assisted suicide. ‘Think of what it will spare your wife, we need to think of her’ he said”.

Such a suggestion from a doctor is bound to influence a patient’s thinking.

I am concerned about this change in the doctor-patient relationship from advocating positive treatment to suggesting to somebody that they end their life. As the noble and learned Lord, Lord Falconer, previously stated, suggestions of this kind should not occur. However, doctors may feel obliged to make such a suggestion to a patient if the Bill becomes law. When the National Council for Palliative Care gave evidence to a House of Lords Select Committee in 2005, it foresaw a situation where:

“Physicians will be under a professional duty to raise it as an option with their patients if they complain of suffering unbearably, as it will be considered to fall in the category of ‘best interests’”.

The fact is that assisted suicide has been integrated into medical practice in Oregon. For instance, patients have been refused chemotherapy by their insurance company, but offered assisted suicide because it was covered by their insurance plan. They tell me that everything to do with euthanasia and assisted suicide in Oregon is working well. They can tell that to the horse marines. I beg to move.

Lord Browne of Belmont (DUP): My Lords, I rise to speak in favour of Amendment 12, which was tabled by the noble Lord, Lord McColl of Dulwich, and which I have co-signed. Amendment 12 would have the effect of adding two additional subsections to Clause 1. The first new subsection would ensure that only a person who is terminally ill may initiate a request for assistance to end their own life. The second new subsection would ensure that no medical professional can make a suggestion to an individual that they consider seeking to take their own life.

Like many in this House, I have always opposed a change in the law to allow for assisted dying. I understand the sincere motivations of those who desire to change the law and I have listened to the many eloquent

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speeches given by Peers from across the House in favour of the change. However, I have never been convinced by the idea that such a law would be the right way forward. I continue to believe, as I said at Second Reading, that this is not a path we should go down. Such a change would have a detrimental impact on the lives of some of the most vulnerable people living in the United Kingdom today, especially those who are disabled, who may feel under enormous strain to take their own lives, even if they do not want to do so.

To that end, I welcome the opportunity presented by this Committee and specifically by Amendment 12 to highlight the fundamental flaws in this legislation. Amendment 12 very effectively helps to highlight the failure of the Bill to guard against the very real possibility of people encouraging others to seek assisted dying. I find it quite extraordinary that those drafting the Bill failed to have regard for such basic, elementary dangers arising from the legislation. While I am sure that no Member of your Lordships’ House would countenance such a possibility, unfortunately human nature is such that we must all acknowledge the real possibility of some people encouraging others to end their lives for financial or other gain if the Bill becomes law.

To my mind, it is easy to envisage a scenario where a family member who would perhaps gain financially from the death of an elderly relative or who was tired of having to care for that person could initiate a request for assistance in ending the life of their relative. The person might not want to die but, on seeing that their relative wants them to end their life, they go along with it, perhaps because, as we have heard, they do not want to be a burden. I think that your Lordships will agree that such a scenario is not far-fetched.

The second new subsection proposed in Amendment 12 is also imperative. I am not a medical expert, as I know some noble Lords are, including the noble Lord, Lord McColl, but, as a layperson, when I listen to the opinion of my doctors, I trust their judgment. If a doctor tells me that I should take a particular medication or go forward for an operation, I will do so on the basis of their judgment, although obviously within reason. I believe that I am like many in our society in this respect. We trust medical professionals who look after our best interests, and they are in a position of significant influence as a consequence.

Under the Bill as it currently stands, it seems that it would be legal for a medical professional to suggest that a person considers the option of assisted dying. To my mind, that is deeply concerning. If a medical professional were to suggest to a terminally ill person that they should consider the option of assisted dying, this could have the effect of putting significant pressure on that person to take their own life. This would especially be the case if the patient was not medically informed or trained. If a trusted physician who had been caring for a terminally ill person and had forged a relationship with them was to tell them that they should consider the option of assisted dying or, indeed, if they were to go further and try to sell the idea, it would be easy to envisage a person in that vulnerable state being swayed by the view of the physician. This is not sheer conjecture about what might happen in a doctor’s surgery if the law were changed.

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An article entitled “Oregon Physicians’ Attitudes About and Experiences With End-of-Life Care Since Passage of the Oregon Death with Dignity Act”, published by the Journal of the American Medical Association in May 2001, reported under the section on changes in clinical practice since the law in Oregon came into being:

“Six percent of physicians had initiated a discussion about physician-assisted suicide with a terminally ill patient, including 10% of physicians who opposed the law and 6% of physicians who supported the law”.

Human nature says that doctors will make suggestions to patients and that there will be relatives who discuss the option of assisted dying with a doctor. I believe that we should protect individuals at a time of vulnerability and not bring more pressure upon them. I support Amendment 12.

Baroness O'Cathain (Con): My Lords, I wish to raise a point for clarification. Amendment 12 states:

“No registered medical practitioner, registered nurse or other health professional may suggest that a person consider seeking assistance to end his or her own life”.

It does not mention whether they are terminally ill. That means that anybody could say to a person with a chronic hearing problem or even dementia, “Why don’t you seek assistance to end your own life?”. That person would not necessarily be terminally ill. I just want clarification on that point in the amendment.

Lord Phillips of Sudbury: My Lords, I rise also to point out what seems to be a flaw in the drafting of the second proposed new subsection in Amendment 12. As drafted, the registered medical practitioner, registered nurse or other health professional does not have to be treating the person referred to. That would mean that if my daughter was a nurse, she would be caught by such a measure if she said to me, “Dad, shouldn’t you seek assistance?”. That does not sound probable but you never know. I simply draw the Committee’s attention to what seems to be a fatal flaw.

Lord Cormack: My Lords, there are clearly deficiencies in the drafting but my noble friend Lord McColl made it quite clear what he was seeking to put across. There needs to be something to replace this in the Bill because we do not want anybody to be able to suggest this. That is the simple point that my noble friend was seeking to make. It is self-evident and I hope we will have a sympathetic response from the noble and learned Lord, Lord Falconer, indicating that he will look carefully at perhaps crossing a few “t”s and dotting a few “i”s.

4 pm

Lord MacKenzie of Culkein (Lab): My Lords, I endorse the points that have just been made. There may be some flaws in the drafting but we need something like this in the Bill.

I will have something to say about nursing ethics later on as we consider the Bill. But for any registered nurse, whether she is the daughter of the noble Lord, Lord Phillips, or anybody else, to suggest to anyone in any circumstance that they should consider ending

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their own life should see them being marched fairly swiftly before the regulatory body and struck off. That would be my view as a nurse. I hope that the noble and learned Lord, Lord Falconer, will help us and say that something like this should be in the Bill.

Baroness Finlay of Llandaff: My Lords, the noble Baroness, Lady O’Cathain, raised a question that has exposed drafting flaws in the amendment, but it actually makes a very important point. I say that based on my own experience of teaching junior doctors, particularly in the Netherlands, where they would frequently say to me that they were under pressure from families for a person to have euthanasia or assisted suicide. The requests were not coming from the patients themselves.

The other situation that we really need to be aware of, as has already been alluded to, is the vulnerability of patients to suggestions from their clinicians. I recall going on a house call with a general practitioner. The patient, who had lung cancer, was breathless and finding life difficult, and wanted to start the process of talking about euthanasia. I listened for a time but noticed that the patient was very wheezy. As the consultation went on—and I could understand a fair amount of it—I said, “Has she had an inhaler for her wheeziness?”. The conversation had gone so strongly down the route of processing her euthanasia request that the GP turned to me and said, “I had not thought of it”. We then had a discussion about how if she was wheezy it was worth trying, and the lady then said, “My grandson has an inhaler and he hates it”. I said, “Perhaps if you have one and he can teach you how to use it, it may help him adapt”. Her reply was, “Oh, at least I can be of some use again”. The request finished; we did not continue with it, but she got an inhaler to try, exactly the same as her grandson had, with the explicit request that she got him to teach her.

I put that in as an example of just how vulnerable people are to suggestion and how easy it is for a consultation to steer down one road and in that process inadvertently forget the other therapeutic options that might be open, might need to be explored and might need a little bit of thinking outside the box.

Lord Falconer of Thoroton: My Lords, perhaps I might I try to short-circuit this. I am broadly in favour of having something in the Bill that says, “You should not be making suggestions”. My anxiety is that I do not want to end up in a situation where there is a fine debate in court as to who first suggested it. It may be that somebody would say, “Can anything be done? Can this be brought to an end?”, and the doctors would say, “There are these options”. Would that be in breach? I do not know and I need to think carefully about the drafting in relation to this to avoid that sort of fine, purposeless discussion in court.

Baroness Grey-Thompson: My Lords, a doctor very explicitly suggesting to somebody that they end their life is one thing. But for me a much greater concern, which has been debated quite a lot already, is about the gentle suggestion that people should consider ending their lives—the arm around the shoulder. I am sitting in your Lordships’ Chamber only because many hundreds of thousands of pounds of NHS money have been

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spent on putting me back together. I have had some amazing doctors with a dreadful bedside manner, and I have had some doctors with a great bedside manner who have performed procedures that I did not ask for. It was recently reported that a young man, Mik Scarlet, turned down a certain procedure several times. When he was on the operating table, the surgeon completely ignored his wishes and carried out the procedure anyway, and it had to be reversed. He is in a better position now than he was previously. It is a very long and complicated story, which is detailed on the

Huffington

Post

.

For me, this is about the constant drip-drip of “You’re not worth it”. I am a very resilient person. If I got upset every time somebody said to me, “I wouldn’t want to be like you”, I would be depressed. Somebody said to me recently, “Well, I wouldn’t want to be incontinent. That’s my worst thing in life”. I am technically incontinent. If it was not for self-catheterisation, I would probably be dead, because I would have pressure sores; I would not exist. I was having a debate in Central Lobby with somebody who strongly supported my view on where we should go with the Bill. He looked at me and sort of waved at the wheelchair and said, “Well, you must have considered killing yourself hundreds of times”. No, I have not, actually, and I think that it was a bit of a surprise to him. It is that sort of tone, where “You’re brave. You’re marvellous”. People do not realise that they are being demeaning. I think that they genuinely think that they are being empathetic, sympathetic and kind, but, actually, you are constantly being knocked down and told that you have no value and no worth. That is what is of much greater concern to me.

The noble Lord, Lord McColl, mentioned Oregon. In 1994, the Oregon medical assistance programme cut funding to 167 out of 700 health services. Four years later, assisted suicide started being referred to as a “treatment”. On the back of that, funding was cut to 150 services for disabled people. They started limiting funded doses of powerful pain medication and put barriers in the way of funding for antidepressants. Thank goodness we do not have an insurance system like the one they have in the United States. I would be dead because my parents could not afford to keep me alive. For me, the big issue is not the doctor saying that your life is not worth living; it is the arm around the shoulder. It is that constantly being told, “You’d be better off dead”. That is what disabled people face every single day. Disability hate crime figures are the worst they have ever been in 10 years of reporting. It is constant. There is not a group of disabled people and a group of terminally ill people; there is a huge crossover.

I am sure that many people have noticed that my noble friend Lady Campbell of Surbiton is not here today. She has a chest infection. She is watching at home on her ventilator. We all know what a chest infection does for her prognosis. It immediately switches her from being okay to fitting in with the category of having less than six months to live. That is not a situation that I am very comfortable with.

The Earl of Listowel (CB): My Lords, the noble Baroness spoke about the young man who was operated on misguidedly by the surgeon. It reminds me that

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young people, 18 to 25 year-olds, might be particularly susceptible to this kind of suggestion over time. I am concerned that this particular group, who are not at the end of their lives but at the beginning and who represent a very small group within the group that we are discussing today, should be given plenty of thought, in particular because of issues around their maturity and the trauma that they may have experienced growing up.

We recognise that developmental delay can arise from trauma. We recognise that, while 18 is generally considered the age of maturity, we extend protections up to the age of 25 for young people who are leaving care. That is for a number of reasons, but in part because of the history of trauma that they have experienced. We recognise that it may take more time for them to develop. Where children or young people have not built up such large social networks, they are more dependent on those nearest to them and one should be very careful to avoid a situation in which they are drip-fed the notion that perhaps their life is not worth living and should be curtailed.

Lord Mackay of Clashfern: I wonder whether the noble and learned Lord, Lord Falconer, was referring to the first part as well as the second part of the amendment, although he spoke mainly about the second.

Lord Falconer of Thoroton: I was referring to both. Clause 1 says the applicant has to initiate it, but I want it to cover both.

The Lord Bishop of Bristol: My Lords, I may not be the only one who is a bit confused about what is happening. I stand to speak in support of Amendment 12 tabled by my noble friend Lord McColl, but I would like to address noble Lords’ attention to Amendment 77, which stands in my name. I rather hoped it might have been grouped with Amendment 85, but they stand separately grouped now. I would like to reserve the right to come back to Amendment 85 at a later occasion and I hope a later occasion will occur for that to happen.

Amendment 77 deals with something slightly different. Quite rightly, most of our debate today has focused on the decision to apply for assisted suicide and to sign the declaration. However, it is fair to say that the request for assistance with suicide involves two different and discrete decisions: first, there is the decision to apply for it, and then there is the decision to ingest fatal drugs. The Bill makes it clear that there has to be a minimum of 14 days between the application and the actual ingestion of the drugs, except in the case of somebody who is given a prognosis of a month or less and then the time lag reduces to six days.

I want to draw noble Lords’ attention to the fact that there can be quite a considerable time lag between requesting assistance and the act of having the drugs administered. I do not like to keep going back to Oregon because, quite clearly, there are some good things about the Oregon experiment. However, it does need to be said that in Oregon the range between the first request and death has been a minimum of 15 days and a maximum of 1,009 days. In Washington, there has been a range of between three weeks and 150 weeks.

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Amendments 77 and 85 are an attempt to try at least to give the opportunity to the person, as they come to the moment when they will actually have the drugs administered, to return to that decision to make sure it is robust. In a sense, it asks questions about two things: the settled nature of their decision but also their continued capacity, given that there are two aspects to the decision that is going to be made. Each decision ought to be subject to some level of scrutiny. Clearly, the first one needs to be subject to a very high degree of scrutiny, but we need to give some attention as to whether the second decision also needs a degree of scrutiny.

These decisions will be made, as I say, at the very least after a 14-day interval in most cases, but some will likely occur after a much longer gap. Consequently, it is necessary to reconfirm that the conditions by which assistance was granted still apply. It is also necessary to confirm that the decision to accept assistance is free from,

“pressure, coercion or duress from others or from a sense of duty or obligation to others”,

and that there exists a level of,

“capacity commensurate with the decision”.

The actual decision to ingest a prescribed dose of lethal drugs should be subject to the same, or very near the same, scrutiny that the initial request for a prescription was.

Baroness Nicholson of Winterbourne (LD): My Lords, I support Amendment 77, to which I have added my name. I am sure that many noble Lords will have had instances in which patients known to them, whom they are looking after or caring for in some way or another, have declared that, yes, they would want to commit suicide and would want help to do it. Then there is a gap. When the decision comes—when the decision is, “Do they actually want to take those drugs? —the decision is frequently no. I have known several instances of that. I therefore firmly support the proposal by the right reverend Prelate in Amendment 77, and I very much hope that the Committee will accept it.

4.15 pm

Lord Falconer of Thoroton: My Lords, I congratulate the right reverend Prelate the Bishop of Bristol on focusing on the amendments, including one that is not even in the group—but I will happily deal with it anyway. As I understand it, he is saying in Amendment 77 that the lethal dose should be delivered only once requested by the patient. I see no difficulty with that. Perhaps I can think about the wording and come back at Report.

Amendment 85 is not in this group, but let us deal with it anyway, as the right reverend Prelate spoke to it—it is in a group of its own. I am against it because, as we discussed earlier, when I had the support of the noble and learned Lord, Lord Mackay of Clashfern, the point is dealt with by Clause 4(2)(c), which provides that the health professional has to confirm that the person has not revoked and does not wish to revoke their declaration.

Lord McColl of Dulwich: My Lords, I thank noble Lords very much for their contribution and for pointing out the errors in the drafting. I am very pleased with

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what the noble and learned Lord, Lord Falconer, said. I beg leave to withdraw the amendment.

Amendment 12 withdrawn.

Lord Howarth of Newport (Lab): My Lords, before we proceed any further—

Lord Newby: My Lords, noble Lords will have seen an unusual amount of toing and froing, as there has been a certain amount of confusion about the consequences of the pre-emption of several amendments as a result of the amendment passed earlier. Having spoken to noble Lords who have amendments affected by that pre-emption, or who have amendments that are due to be debated, I propose that for the rest of the afternoon we proceed as follows. First, the noble Lord, Lord Alton, should speak to his Amendment 11 as part of the debate on whether Clause 1 should stand part. If any noble Lord wants to speak to any of the amendments that were dropped, as it were, as a result of pre-emption, I suggest that they do so at the conclusion of that debate.

The amendments covered by pre-emption were the initial amendments in those three groups, Amendments 8, 10 and 11. The later amendments in those groups, Amendment 69 and onwards, Amendment 25 and onwards and Amendment 90 and onwards could be debated later, when we get to them. I propose that when we have finished the debate on whether Clause 1 should stand part, in the light of the fact that, by common consent, the debate on the following group will be very long, I adjourn the House.

Debate on whether Clause 1, as amended, should stand part of the Bill.

Lord Alton of Liverpool: My Lords, given the advice of the noble Lord, Lord Newby, I will take the Committee to the arguments that would have been contained in the group led by Amendment 11. I think that was the guidance that we were just given. Noble Lords will realise that later amendments, Amendments 90, 92, 93, 105 and 122 will be reached when they get there. I will try to keep my remarks fairly short, because I think that the Committee is growing weary.

This is an important question, as are many of those that have been laid before the Committee today. It deals with the title of the clause, which is “Assisted dying”. I would argue that that is incorrect; it is assisted suicide. Those who support the noble and learned Lord’s Bill are at pains to tell us that assisted dying is not physician-administered euthanasia, whereby a doctor administers a lethal dosage of drugs to a patient, but physician-assisted suicide, whereby a doctor supplies a lethal dosage of drugs and the patient swallows or otherwise ingests them. I invite the Committee to look at the procedures set out in the noble and learned Lord’s Bill against these claims.

Clause 4 is perhaps the principal clause in this respect. Its subsection (4)(a) allows a doctor or nurse to “prepare” lethal drugs for self-administration. Presumably this means putting them into a form, such as a liquid, that the person can swallow—in a way, so

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far so good—but subsection (4)(b) then provides for a “medical device” to be put in place to aid self-administration. Again, I suppose that this is fair enough, although rather more precision is needed as to the object of such a device. That is why I have tabled an amendment to that effect.

Then we come to subsection (4)(c), which allows a doctor or nurse to,

“assist that person to ingest or otherwise self-administer”.

Here we really are on the borderline between physician-assisted suicide and physician-administered euthanasia. Subsection (4)(c) raises some important questions. Precisely what assistance, apart from preparing the lethal drugs and perhaps inserting a feeding tube, does “assist … to ingest” include? Does it include, for instance, holding a beaker to the lips of the person? It is not difficult to foresee a situation in which a doctor or nurse supplying lethal drugs under the terms of the noble and learned Lord’s Bill could cross the line, however innocently, between giving the patient those drugs and administering them. Subsection (4)(c) introduces a significant and dangerous grey area into the process of assisting suicide.

The noble and learned Lord has, I can see, recognised this ambiguity in subsection (5), which states that neither the doctor nor the nurse may administer the drugs to the patient, but it seems that as long as subsection (4)(c) stands, the ambiguity will remain. Moreover, subsection (5) says nothing about others administering the drugs, which brings me to my next concern. It is not just a matter of the doctor or nurse refraining from administering lethal drugs. There are others who might be inclined to do so, possibly from altruistic motives. It is therefore important that there is oversight by the doctor or nurse of what happens when the lethal drugs are delivered.

At this point, the noble and learned Lord’s Bill becomes rather convoluted. It states, reasonably enough, that the doctor or nurse must remain with the person to whom the drugs have been delivered until either they have been ingested and the person has died or the person has decided not to take them, in which case they are withdrawn. Yet subsection (6) defines remaining with the person as being,

“in close proximity to, but not in the same room as, the person”.

I understand and respect the noble and learned Lord’s wish to allow a person who is self-administering lethal drugs to die without strangers in the room but we have to balance that against the scope for others to intervene in a way that is not permitted in his Bill if the drugs are ingested without supervision.

We all heard the intervention that the noble Lord, Lord Jopling, put to my noble friend Lady Finlay much earlier in our debates about the circumstances in which people might die. I would have thought that the doctor’s presence need not be obtrusive. Apart from anything else, we have to allow for the possibility—this sometimes happens, according to the evidence from Oregon—that complications, such as vomiting or distress, arise when the drugs are taken. The doctor needs to be in the room if that happens.

For me, this is an issue that helps to distinguish between assisted suicide and assisted dying. If it is not the wish of this Committee that we should legalise

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outright euthanasia—I do not believe that it is—then it is very important that those clarifications are made. While I am unable to move Amendment 11, which was originally on the Marshalled List, that would have been its purpose. I am grateful to the noble Lord, Lord Newby, for providing us with the opportunity while debating the amended Clause 1, which I will not be opposing, to debate some of these questions.

Lord Cavendish of Furness: My Lords, with the leave of the Committee and with the agreement of my noble and learned friend Lord Mackay, I shall speak to Amendment 10 under the new regulation that we have. With that amendment, I would probably include Amendments 52, 164 and 170. When I left Cumbria, Amendment 70 was included in that grouping but it was moved while I was on the train. Before speaking further, I should perhaps declare an interest since, as I told your Lordships at Second Reading, I was co-founder of St Mary’s Hospice in Cumbria more than 20 years ago and, although I retired some two years ago as chairman of the trustees, I maintain my involvement as the patron. I have no professional qualifications in the field of palliative care, but my close association with a hospice over a good many years has done much to crystallise my thoughts on the matters under discussion in your Lordships’ House today. We have heard many deeply moving personal experiences, and of course I have my own, but nothing has moved me so much as witnessing not only the physical and mental relief of patients of the hospice but the sense of pure joy that the hospice movement sometimes brings through acceptance and the general level of care.

I feel sure that it is a view shared by both sides of this debate that anyone who is provided with assistance to end his or her life must understand clearly what he or she is doing; that much is surely beyond argument. However, as with many other aspects of the noble and learned Lord’s Bill, there is a significant gap between saying what should happen and putting in place provisions to ensure that it does. It is to fill such a lacuna in the Bill that I am proposing these amendments. Many of the arguments have been covered by my noble friend Lord Howard.

For a fully informed decision, the Bill as it stands requires simply that a person seeking assistance with suicide must be,

“fully informed of the palliative, hospice and other care which is available”.

But what does that mean? It means no more than that the doctor assessing the request must explain to the applicant for assisted suicide what the various end-of-life care options are. Such a doctor may well know little of what modern palliative care has to offer. It is a medical speciality that is making huge advances year by year, and it is unlikely that even a good doctor, with limited experience of end-of-life care, will be able to be sufficiently acquainted with the subject.