Lord Stevens of Birmingham
Main Page: Lord Stevens of Birmingham (Crossbench - Life peer)Terminally Ill Adults (End of Life) Bill
Lord Stevens of Birmingham Excerpts
Lord Carlile of Berriew (CB)
My Lords, my noble friend Lord Birt was, of course, perfectly entitled to refuse my attempt to intervene in his speech. I am, however, disappointed that he chose to defy the determination of this House that we should not have repeated Second Reading speeches. Every one of us here can stand up and make a Second Reading speech on any of these amendments if we defy that determination, and I hope that he will not do it again. I am sure it was a misunderstanding on his part about the way in which he was able to move his amendment.
As to his amendment, I am afraid that I am suspicious about his group of amendments, and I think he gave the game away in the way in which he later turned to and referred to them. It is clear that he is very keen on there being a more extensive provision for assisted suicide—that people far beyond the scope of the noble and learned Lord’s Bill should be able to claim and achieve assisted suicide. Some of his amendments I agree with—I would love to see better care for people who are facing the end of their lives—but behind his amendments is a death service. As the noble Lords, Lord Deben and Lord Harper, said, what he is providing is a way to death, not a way to enjoy and make the most of the rest of your life. I would urge noble Lords not to support these amendments, because I regret that their motivation is not even consistent with that of the sponsor of the Bill.
Lord Stevens of Birmingham (CB)
My Lords, I speak specifically against Amendment 771, which would require the Secretary of State to establish an assisted dying help service as part of the National Health Service. I believe that that is a conceptually misplaced proposition in that, if we cast our minds back to last Friday, it was completely evident that the sponsor of the Bill does not intend that only in cases of unbearable pain or suffering would a person be eligible for the assisted dying service. Instead, concerns about your finances or being a burden on your family would be defined as legitimate bases for making the choice to opt for an assisted death.
It is not the proper function of a national health service to deal with financial burdens or pressures on people’s families in that way: that is a category mistake. Indeed, the founding charter for the NHS, the National Health Service Act 1946, is quite clear, and all successive health Acts have laid out the purpose of the NHS, which is
“to promote the establishment … of a comprehensive health service designed to secure improvement in the physical and mental health of the people of England and Wales and the prevention, diagnosis and treatment of illness”.
Assisted dying does not fall within the scope of that purpose. In fact, I think that must be evident indeed to the drafters of the Bill, because somewhat camouflaged at Clause 41(4) is the suggestion that, by regulations, that founding charter for the National Health Service could be amended to include assisted dying. They reference the fact that change is probably required to the most recent iteration, the 2006 Act, to bring that about. I do not think it can be said legitimately that this is a part of the purpose of the National Health Service, and it is unnecessary in practice, organisationally.
Just because doctors, like lawyers and social workers, are proposed to be involved in this, it does not mean it is inherently part of the National Health Service. Doctors do DWP assessments, but that does not mean the National Health Service runs the benefits system. Doctors are involved in driving licence assessments, but that does not mean the National Health Service runs the DVLA. Doctors are involved in the criminal justice system as forensic medical examiners, but that does not mean the NHS needs to run the court system.
Lord Winston (Lab)
Does the noble Lord agree that removing life support is not part of the health service?
Lord Stevens of Birmingham (CB)
As the noble Lord will well know, the ethical principle of the doctrine of double effect is in place there. There is no doctrine of double effect associated with assisted dying; it is a completely different ethical principle. In fact, part of the reason why it would be dangerous to include assisted dying in the National Health Service is because it risks undermining the very trust that people have in their clinicians.
It increases the risk of what you might call self-coercion in the name of altruism. People thinking that they are reducing not only the burden on their families but on the NHS from an earlier death is a genuine risk. We saw that, frankly, during Covid, when the slogan, “Protect the NHS”, was used. A number of us were opposed to that, fearing it would put people off coming forward for needed care, which is precisely what happened. The idea that an NHS-branded assisted dying service might, at least in people’s minds, come to be associated with helping to protect the NHS by virtue of choosing an earlier death blurs the lines, which we should be careful to avoid.
Fundamentally, it is unwise to include assisted dying in the National Health Service because it blurs the distinction between palliative care and what is proposed in the Bill. As we have just heard from the noble Lords, Lord Harper and Lord Deben, many of us have concerns that the choice on offer will not be a genuine choice if palliative care is not available, and I am afraid the Government have been less than forthcoming as to what they envisage palliative care services looking like over the coming years.
Two months ago, I asked the Government a very straightforward Written Question: can they tell us whether the palliative care and end-of-life care modern service framework, which they are going to publish, will quantify the incremental funding needed to make sure that everybody who would benefit from specialist palliative care would get it? I did not get an Answer to that straightforward Question before this House debated the palliative care elements of the Bill. This week, I received a two-sentence response—it was not an Answer —which said:
“The Government is developing a Palliative Care and End of Life Care Modern Service Framework for England. I refer the Noble Lord to the Written Ministerial Statement … on 24 November”.
That was the Answer to the Question: will the Government’s framework specify the funding gap, identify funding to meet it, and ensure that people have access to care? On that basis, we are entitled to conclude that they probably do not intend to move in that direction. Therefore, the concerns about having an assisted dying service as part of the National Health Service, when palliative care needs go unaddressed, are all the more acute.
For those three reasons—the fact that the proposal is conceptually misjudged, organisationally unnecessary and inherently risky—I oppose the proposition that assisted dying should be part of the NHS.
Baroness Hollins (CB)
My Lords, I support and have added my name to Amendment 771ZA, in the name of the noble Lord, Lord Mackinlay, which would prevent the assisted dying service being part of the NHS. I agree with the points made by my noble friend Lord Stevens.
Integration into mainstream healthcare appears to normalise the practice and lower barriers to the use of assisted dying. International evidence is instructive—where it is embedded within publicly funded healthcare systems, such as in Canada and the Netherlands, uptake rises steadily over time and eligibility criteria broaden. As we know, in some jurisdictions it is available to minors, people with non-terminal conditions, psychiatric diagnoses, and even people with learning disabilities and autism, as my own published research on the Netherlands has shown.
I agree with my noble friend Lord Stevens that assisted dying is not a treatment. That is a further reason why it should never become part of the National Health Service. The substances proposed to be used neither treat nor prevent disease; they fall outside the legal definition of a medicinal product. The drug regimens proposed are unlicensed, have not undergone appropriate clinical trials and lack international consensus. The drugs that have been used more widely and successfully to provide the much-lauded pain-free and quick death, such as in Switzerland, are not even available or licensed for human use in the United Kingdom.
My noble friend Lord Birt seems to seek to introduce similar criteria as are used in Switzerland, and not just for terminal illness—he spoke about suffering, pain, and conditions that are not eligible under the Bill. In Switzerland, non-profit organisations such as Dignitas operate within that narrow but deliberate legal space created by Article 115 of the Swiss Penal Code, which states that assisted suicide is punishable only when carried out for selfish motives. That means that if it is provided purely out of compassion, with no personal gain, it is not a criminal offence, enabling Dignitas and other similar non-profit organisations to function lawfully so long as they can demonstrate altruistic intent and ensure that the individual is acting autonomously.
Interestingly, Article 115 of the Swiss Penal Code, contained only one clause—I think just one sentence—when it became law in 1942. One wonders whether the smoke and mirrors of the 59 clauses in the Bill and the various proposed new clauses from my noble friend Lord Birt disguise a similar intent. The potential changes and development of the proposals before us today are concerning. Indeed, if something as straightforward as is provided in Switzerland is intended, I do not understand why it was not proposed in the first place. We do not want this in the National Health Service.
Lord Kamall (Con)
I thank my noble friend for that intervention. Before commenting on the content of the Bill, I was seeking, just to be fair to the Government, to lay out what they have told me.
Lord Stevens of Birmingham (CB)
May I pursue the important point that the noble Lord is making? The Minister for Care, Stephen Kinnock, was before a Commons Select Committee on this very point that the noble Lord, Lord Harper, has discussed. He declined to give any commitments about the content of the modern service framework for palliative care and declined to say that resources would be made available to fill the gap; the only specific commitment he gave was that a new 24/7 phone number would perhaps be put in place in 2027, I believe.
Lord Kamall (Con)
I thank the noble Lord for that intervention, as well. It reinforces the points I am going to come to—if that makes sense.
The Minister, the noble Baroness, Lady Merron, ends the letter by saying:
“Through these actions … we hope to ensure sustainable funding for palliative care and end-of-life care sector in the long term”.
This is the Government’s stated intention. The next bit says:
“I hope this letter has provided clarification on the queries you raised”.
I will let noble Lords be the judge of whether it provides clarification. To be fair, the Minister copied the letter to all Peers who tabled amendments, as my noble friend Lord Harper said, and put a copy in the Library. I urge all noble Lords to read that letter to see whether they believe that it provides the clarification that many are seeking. If we feel that it does not, we should come back to this point in future weeks and raise these issues with the Government again.
I hope the Minister, the noble Baroness, Lady Blake, will take that on board when she answers. If she does not have the answer to many of these questions, we should wait for other noble Lords to read that letter, then maybe raise the questions again and ask whichever noble Baroness is on duty as the Minister in future weeks to answer questions on areas where we still believe there are gaps.
Lord Stevens of Birmingham (CB)
On that very point, the noble and learned Lord’s Bill, at Clause 41(4), does indeed propose that an interpretation will be imposed on Section 1(1) of the 2006 Act, suggesting that he thinks there is some ambiguity on that point. As to the question about withdrawing care from an MND patient, surely the distinction between an act and an omission—the ability for somebody to choose to decline treatment—is a well-understood principle that has no bearing on the question of an assisted death.
Lord Falconer of Thoroton (Lab)
They are fundamentally different, but the idea that removing the respiratory equipment does not involve some acts is not realistic. But I completely accept the proposition that they are different. On the legal point, there is some ambiguity about what the section means and whether it needs to be changed, but I am making it absolutely clear that, from my point of view and that of the promoters of the Bill, it is most certainly not outside the broader founding principles of the NHS.
Lord Falconer of Thoroton (Lab)
My answer to that—because the answer I gave in my long and tedious speech was obviously inadequate—was that to be properly informed, you would have to say what the effect of the drugs and what the complications would be. That comes from the word “informed”. If there could be any doubt about that, the fact that you have to discuss how, physiologically, it brings about the death and you need to discuss what happens in relation to the complications puts that beyond doubt.
I will just go back to the question from the noble Baroness, Lady Berridge. It is Clause 33, not Clause 32, which is the civil liability for providing assistance. That provides that if it is done in accordance with the Act then there is no civil liability, but it needs to be done in accordance with the Act, which means it has to be the informed wish.
Lord Stevens of Birmingham (CB)
Could I pursue that point and connect it with the question from the noble Baroness, Lady Finlay? It is very important that we clarify this for the benefit of the medical profession. Clause 33(2)(b), which covers civil liability, says that the civil liability exemptions are not available to a doctor
“in tort arising from a breach of a duty of care owed to a person”.
In the scenario described by the noble Baroness, Lady Finlay, what is the duty of care that the doctor owes the patient who has just not died?
Lord Falconer of Thoroton (Lab)
I am not sure whether the noble Lord is asking that in the context of giving information or of doing it negligently. The effect of Clause 33(2) is that nothing prevents the obligation on the doctor to act with reasonable care towards the patient. If, carelessly, the doctor failed to set out all the risks or maladministered the assistance, either the patient or the estate of the patient would have a claim against that doctor for negligence. There might be a dependency claim as well.
Lord Falconer of Thoroton (Lab)
In response to the question from the noble Baroness, Lady Finlay, regarding the complications, that has to be agreed in advance. I did not think that that was the question from the noble Lord, Lord Stevens.
Lord Falconer of Thoroton (Lab)
The doctor has to take reasonable care at that point. They cannot do anything to kill the patient, so they have to provide reasonable treatment to save the patient’s life at that point.