Baroness Finlay of Llandaff
Main Page: Baroness Finlay of Llandaff (Crossbench - Life peer)Terminally Ill Adults (End of Life) Bill
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Baroness Finlay of Llandaff (CB)
My Lords, I have Amendments 190, 268, 359, 617 and 660 in this group. The crux of this group is that assisting suicide is not a medical treatment, and products to bring about the death are being used not as medications but in massive overdoses for their poisonous properties.
The Human Medicines Regulations 2012 define a medicinal product as
“any substance or combination of substances presented as having properties of preventing or treating disease in human beings; or … that may be used by or administered to human beings with a view to … restoring, correcting or modifying a physiological function by exerting a pharmacological, immunological or metabolic action, or … making a medical diagnosis”.
After considering what is a medicine, let us consider treatment. My noble friend Lady Campbell described excellent care and complex care very well. The Health and Social Care Act 2012 states that the comprehensive health service is
“designed to secure improvement … in the physical and mental health of the people of England, and … in the prevention, diagnosis and treatment of physical and mental illness”.
This is then embodied for patients in the NHS constitution.
In debates to date, proponents have focused on assisted dying as an existential choice, not a treatment. Canada considers it a treatment, and the problems—as my noble friend Lady Campbell explained—have emerged over time. But in Switzerland and Germany, it is fundamentally not a healthcare matter. It is important to remember that outside life, there is no health.
What of the role of doctors? The main conscience clause, now Clause 31, was expanded on Report in the other place to include explicit carve-outs to protect any person from a
“duty to participate in the provision of assistance in accordance with this Act”.
But I ask the noble and learned Lord, Lord Falconer: how is this assistance defined, and what are its boundaries? Is it the assessment process for eligibility for lethal drugs, or is it only the provision of lethal drugs? Is it only actually helping the person to ingest the drugs or setting up a delivery device for the lethal substances? Those boundaries are really important.
Clause 5(6) originally required doctors unwilling to conduct the preliminary discussion to refer a patient to another doctor who could conduct the discussion. After objections from the medical organisations, this was changed to a duty to direct the person where they could find information, although the Royal College of Psychiatrists has said that this may fail to adequately respect conscience.
However, Clause 5 still does not meet the requirement of expert medical bodies that request an opt-in system. Amendment 268 states that the “coordinating doctor”, Amendment 359 states that the “independent doctor” and Amendment 617 states that a substitute doctor must all have explicitly opted in for these roles. Currently, freshly qualified medical graduates could act as co-ordinating doctors. Under my amendments, no one could be a co-ordinating doctor unless they had explicitly met training and competency requirements to be on a new, separate GMC register, eligibility for which would require specialist training, as has already been so well explained in the introduction of this group.
As has been said, the BMA and the Royal College of GPs both specifically requested an opt-in system. The BMA requires an opt-in model for doctors who positively opt in to provide assisted suicide to be able to choose which parts of the service they are willing to provide.
Yesterday I had confirmation from the Royal College of General Practitioners that it strongly supports my Amendments 268, 359 and 617. It said:
“The College believes that any assisted dying provision must be separately funded and delivered through a distinct pathway”,
and that the college
“would support explicit clarification on the face of the Bill to make clear that there is no expectation on any doctor (including GPs) to participate and it is only those who positively choose to do so (via an opt-in) who would have the training and participate”.
I note that the amendment in the name of the noble and learned Lord, Lord Falconer of Thoroton, would make training the opt-in, but it would not deal with institutional expectations. If you cannot be legally compelled to take the training, I am not certain how you could still be involved in the discussions or assessments. It is not clear that the amendment would mean that you should be on the specialist register, as explained.
The only way to protect clinicians from detriment is by opt-in. Evidence to the other place from Canada suggests that physicians find it very hard to opt out, despite a right to, describing how assisted dying
“has completely changed the practice of medicine in Canada … doctors are expected to facilitate access to death, if not willing to provide”
it
“themselves, even when a doctor knows reasonable options for care have not been provided”.
The physicians went on to voice their concerns. That is all in the written evidence. I have heard from Australian doctors who have been intimidated, even driven out of their job, for refusing involvement.
Pressure does not come only in the professions, though. A recent study of Dutch GPs reported that the majority of Dutch physicians feel pressured when dealing with a request for euthanasia or physician-assisted suicide—particularly emotional blackmail, control and direction by others, doubts about fulfilling the criteria, counterpressure by patients’ relatives, time pressure around referred patients and organisational pressures.
That creation of an expectation and culture of assisted death is why medical experts want a clear opt-in system. An opt-in would allow the NHS’s work to continue unhindered and ensure that patients seeking assisted suicide are seen by doctors who are fully trained in the process. The BMA survey already referred to revealed that 6% of members of the Association for Palliative Medicine would be prepared to administer lethal drugs, but without an opt-in there would be the risk of an organisational exodus of staff. Dr Sarah Cox of the Association for Palliative Medicine told the other place in oral evidence that 43% of palliative medicine professionals say that they would leave if assisted dying were made part of the organisation in which they work.
Baroness Gerada (CB)
I have talked before about using the term “assisted suicide”. If this becomes available, it will be an unusual event: we are not talking about hundreds of patients wanting an assisted death. I suspect that, within each local area, a list will be available, held at the local health authority or wherever, of those doctors who are willing to participate. Noble Lords may have gone to the event at which the Australians said how it is done in their country: it is done by doctors of all professional groups. It is about the competence and capabilities, not the specialties, of those doctors who wish to pursue the training in order to become competent and capable of doing this. This is all feasible. We are not talking about me in my consulting room nipping off at lunchtime and administering assisted death. We are talking about a regulated system that will be properly managed with small numbers. I hope that is an answer.
My final point is about the use of drugs that are there to treat disease. I am sure that, with her expertise in palliative care, the noble Baroness, Lady Finlay, will know that, at the end of life we use drugs, sometimes at extraordinarily high doses, that we know will accelerate death.
Baroness Finlay of Llandaff (CB)
I intervene on the noble Baroness’s comment about training. Everybody is, indeed, trained in abortion, for example, as they go through medical school, but by the time you are practising clinically and you are on a specialist register, you are no longer keeping up to date with those skills at all, and your revalidation depends on your keeping up to date with those skills, which is the benefit of having a specialist register.
If I might comment on the noble Baroness’s opening remarks about being worried about receiving hate mail, perhaps she might have some sympathy for those of us in palliative medicine who have been receiving a great deal of hate mail because we are known to be specialists in palliative medicine and because we have been flagging up concerns over the Bill. As for the numbers—
Lord in Waiting/Government Whip (Lord Wilson of Sedgefield) (Lab)
I ask the noble Baroness, Lady Finlay, when she is intervening, to keep it short, and people cannot intervene on people who are intervening.
Baroness Finlay of Llandaff (CB)
Noble Lords are repeatedly intervening on the different points.
As for the numbers, the estimates, based on the evidence from other countries, suggest that the estimates in the impact assessment are very low, and that the demand for assisted suicide would be much higher, so it would come into the purview of a large number of clinicians; hence the need for specialisation.
Baroness Andrews (Lab)
My Lords, with some diffidence, I first put on the record that the Bill is abundantly clear that it is an opt-in system. Clause 31, “No obligation to provide assistance etc”, says:
“No person is under any duty to participate in the provision of assistance in accordance with this Act … No registered medical practitioner is under any duty to become … the coordinating doctor … or … the independent doctor”—
I will not read out the whole clause. I do not understand why it has been described by noble Lords in the way that the noble Baroness described, about not being able to opt out.
On the point of the register, we have heard over 13 days how important it is to listen to and consult medical practitioners at every stage of the Bill. The proposition in Amendment 189 is that the register should be put in the Bill. It is a privilege to listen to the expertise of our noble friend—as I call her—the noble Baroness, Lady Gerada, who has expressed some very profound and intimate reservations. But surely there will be provision in due course for the discussion of how to register people who are willing to opt in, and to do that with a full consultation of all the medical professions so that the concerns of the noble Lord, Lord Carlile, can be addressed. Surely, as with so much of the debate we are having, this is a matter of implementation. Let us get to the point where we can make a decision in principle, but let us make sure that in implementing it we have it right. That must be done, I think, with the full consultation of all the medical professionals.
Baroness Finlay of Llandaff (CB)
What assessment was made by the Government when saying that the proposals in these amendments would limit the ability to design an optimum service in relation to the Bill, given the system in the Netherlands where SCEN doctors—the second opinion doctors—have specific training and are specifically listed as being able to provide that information? That is a nation where the number of people euthanised is very much higher than suggested in the impact assessment. Having a group separately trained and listed, who are deemed to be specialising in part of this, seems to work in the Netherlands. I would be interested to know what assessment the Government made of that in formulating their response to this group of amendments.
Baroness Blake of Leeds (Lab)
I cannot answer that specific question, and I am not sure it would be appropriate for me to do so. We note the comments that the noble Baroness made.
Lord Falconer of Thoroton (Lab)
My noble friend loves sometimes to overstate it, I have to say, but we should do our best to try to co-operate and reach agreement. I express my gratitude to the Committee for all the opportunities they have given me to listen over the past 15 days, with two more days to come.
I will deal with the issues that have been raised under four headings. First, is this an opt-in or opt-out system, and, if it is not an opt-in system, do we need to change it to make it one? Secondly, is the width of the opt-out in Clauses 5 and 31 wide enough? Thirdly, what should we do about the suggestion of the noble Baroness, Lady Fraser, and others of a register? Fourthly, the suggestion of the noble Baroness, Lady Cass, was significant, and we should think about whether that is workable in a variety of ways.
Is this an opt-in or opt-out system? I have spoken to a lot of people on this, in particular the BMA. It is not happy that the Bill in its current draft is adequately clear that it is an opt-in system. In accordance with the wishes of the BMA, and after considerable discussions with it, in Amendment 669A we have included a requirement that everybody who has the specialist training—which is a necessary requirement before you can participate as a doctor under the scheme—has opted in to the specialist training. The BMA was very clear, and I accept this, that opt-in should be in the Bill so that there can be no doubt about that. We have done that and I hope that everybody will agree with it.
Baroness Finlay of Llandaff (CB)
I do not quite understand, then, why I received a letter dated 26 March, just this week, from the Royal College of General Practitioners, requesting explicit clarification in the Bill to make it clear that there is no expectation on any doctor, including GPs. I wonder whether there were discussions with the royal college and whether its comments had been rejected.
Lord Falconer of Thoroton (Lab)
There is a difference between expectation on the one hand and opt-in on the other. We take the view, after discussions with the BMA, that opt-in is sufficient to make it clear that you have to actively take a step before you are required to participate. The fact that you have to opt-in means there is no expectation, one way or the other, that you need to opt-in. I take the view that that is an adequate response. I do not know whether the Royal College of General Practitioners had a chance to look at our amendments, but I suspect that they will be adequate in relation to that point.
From there, I go on to Clause—
Lord Falconer of Thoroton (Lab)
Clause 31(1) states that “No person”—it is not restricted to doctors—
“is under any duty to participate in the provision of assistance”,
as defined in Clause 25. Subsection (2) states that “No registered medical practitioner” has to become a “coordinating doctor” or an “independent doctor”. Subsection (3) states:
“No registered medical practitioner, other than the coordinating doctor or the independent doctor, is under any duty to perform any function under or in connection with this Act”.
I have set out my position on that, including in relation to the porter example. I do not think I should go further than that.
Baroness Finlay of Llandaff (CB)
My Lords, I hesitated but I want to come in on that, because I am not clear what the position is for care assistants and people who are involved in the intimate care of patients. In Australia in particular, there have been problems where staff such as care assistants, who are not qualified nurses, feel that they are providing the patient with their last bath and last meal and that it feels as if they are having to, in effect, prepare somebody for their execution—the end of their life. That might sound shocking in the way that it is expressed, but that is how it was relayed to me. Similarly, staff who are preparing a meal that turns out to be a person’s last meal can find that very distressing.
If I have heard the noble and learned Lord correctly, those staff will have no ability to have any conscience objection whatsoever. In effect, they are being treated as people who just have to operate in their job, like it or leave it. Is that correct?
Lord Falconer of Thoroton (Lab)
Not in that language, not at all. But if, suppose, you are a care assistant giving somebody a bath before the provision of assistance, there is no conscience clause in relation to that. I am not sure whether the noble Baroness is suggesting that if you are caring for somebody who you know is subsequently going to have an assisted death, there is some point at which you, as a care assistant, should be entitled to say, “I’m not going to provide assistance to that person because I find the issue of providing assistance contrary to my conscience”. But as far as the Bill is concerned, every person, doctor or not—that includes care assistants—is under no duty to participate in the provision of assistance in relation to the provision of the substance under Clause 25. Working back from that, the person does not have the protection.
Baroness Finlay of Llandaff (CB)
So, to clarify, the noble and learned Lord is not allowing a provision here to say that if you have strong feelings, for instance, you will be able to ask not to be rostered to work on that shift, or on that day, or in that situation, and instead be able to be moved to another place. One of the solutions in some places has been that when an assisted death is scheduled, the members of staff who do not want to work that day have a right to be rostered off, so as to be able to assert their conscience.
Lord Falconer of Thoroton (Lab)
If the position is that if you are on the roster, there is a risk that you will be in the room and assisting in relation to the provision of assisted dying, of course it would be sensible not to be rostered on that day. That is the sort of solution that I hope that people would be looking for.
Baroness Murphy (CB)
I just want to comment on some of these earlier amendments, particularly from the noble Lord, Lord Shinkwin. I think the noble Baroness, Lady Finlay—I cannot remember whether it was last week or the week before that—reminded us that people who are terminally ill, or who have discovered that they are very ill and likely to die, have a range of things they want to talk about. Whether they could opt out in some way will almost always go through their head at some stage. Whether it is legal or illegal, that is the way it is, and they will often want to discuss that. But that is not quite what the preliminary discussion for the purposes of the Bill is. It is a rather more formal preliminary discussion, which must cover a number of things—I think there are half a dozen in the Bill. That is not quite the same as the very early recording being proposed for any old discussion that takes place.
Of course, multiple things get covered between a doctor and a nurse, between the nurse and the patient, and between the patient and his doctor about what they are feeling and what they want. However, when it comes to something that is considered sincerely held, it is at that point that the preliminary legal discussion comes in as the first discussion to record.
A lot of these discussions will be recorded in the medical notes. My experience of reading many medical notes is that they do not cover what you would like them to, but on this occasion they often will. Nevertheless, it is not quite the same as what is proposed in the Bill. I urge people to concentrate on what is recorded in the Bill as having to be recorded for that preliminary discussion, because that covers a huge amount more than is being proposed in some of these amendments.
Baroness Finlay of Llandaff (CB)
In light of the fact that the noble Baroness said this would be a formal discussion, does she agree that if we are sticking with the principle of choice, autonomy and accurate information, it becomes even more important that the patient is given, as fast as possible, a comprehensive copy of that discussion, and that it is not just left filed in a medical record but should be given to the patient for them to look at and reflect on?
Baroness Murphy (CB)
I do not know what the noble Baroness’s discussions with her patients are like, but I remember mine very well. A lot of discussion that goes on between a doctor and a patient does not get formally recorded but is part of the everyday conversation of a consultation. I think we must recognise that we need, as the noble Baroness, Lady Fraser, urged us this morning, to get back to the realistic issues about what patients want and what they talk about.
It is important that we remember what the Bill is about. It is about trying to do something with what we have in normal day-to-day medical practice. It is not about imposing something else on what is ordinary day-to-day practice until such time as people have expressed—probably repeatedly—a settled wish to go down this route and they are terminally ill. Then the proper discussion kicks in and they need all that information. How much of it is provided to them in written form and how much orally is a judgment between the doctor, the nurse and the multidisciplinary medical team looking after them.