Baroness O'Loan
Main Page: Baroness O'Loan (Crossbench - Life peer)
Lord Markham (Con)
Yes, absolutely. That is what these debates are all about: trying to find an approach that makes assisted dying tight and safe, safeguarding all sorts of vulnerable groups, but also navigable. I know that is what the sponsors of the Bill are trying to do and what the noble Lords are trying to do in this amendment. I commend the amendment for that reason. I do not think they are trying to be prescriptive. They are trying to start a conversation with the Bill’s sponsors that will go on between now and Report, which is an entirely constructive way to do it.
On how the service is best provided, I was on the Select Committee and it is one for the NHS to commission in the best way. Commissioning can use the NHS or voluntary services, and I think we would all agree that, in the hospice sector, voluntary services provide very well. It is wrong at this stage for us to try to be prescriptive in terms of a one-size-fits-all NHS provision. The main thing on these amendments is trying to get a constructive approach, which I am sure the Bill’s sponsors will pick up, to how we make this as simple as possible to use for those who are in the most distressing period of their lives, when they have less than six months to live and they want to die in a method of their choice and in the most comfortable way possible.
Baroness O'Loan (CB)
My Lords, of the 43 amendments in this group, 35 are in the names of the noble Lords, Lord Pannick and Lord Birt. They propose a framework for a completely new process outside that already created by this defective Bill, requiring a service of both advice and assistance. This includes the provision of assisted suicide every day of the year, including public holidays, Christmas, Easter et cetera, from 8 am to 6 pm, unless the doctor is in the house where the drug is being administered, in which case he has to stay. As has been said, there is no impact assessment on the cost of this new service and it is a relevant matter. Concerns must arise, given the advice of the Health Secretary that there is already a lack of access to high-quality end-of-life care and that there are tightened finances within the NHS, which could add to the pressure faced by dying patients.
These amendments require a new service that must be part of the NHS. We have heard arguments against that, and I support them. They impose deadlines and create processes for enforcing those deadlines, which will provide assisted death at a time when the person who is terminally ill will, in many cases, struggle to access palliative care; they may even never be able to do so.
The assisted suicide service would take priority. There is no process, as has been said, for a personal guide to get palliative care or the necessary social care. Would the noble and learned Lord, Lord Falconer, be willing to accept amendments that would require palliative care treatment options to be available and accessible within similar structures and timeframes?
Baroness O'Loan (CB)
I have been to A&E many times, particularly with my son, and I have never had a navigator. How does one have a navigator in A&E?
Lord Birt (CB)
I am sorry; perhaps the noble Baroness can talk to me later, as I could not take in what she said.
I am, frankly, open-minded about the NHS question and accept the strength of what the noble Lord, Lord Stevens, says. It may well be that this is an organisation that should be apart from the NHS but uses some of its services. However, I am happy to talk to others about how best to do that.
I reassure the noble Lord, Lord Harper, that the process can, and should, be designed not only to support assisted dying but to painstakingly explore the alternatives to assisted dying, and I did say this. We suggest that palliative care should be one of those services and, whatever the reasons that people have for assisted dying—there may be others beside their chronic near-death state of mind—we also propose that the organisational body should be able to help the person in other sorts of ways. We want it to be a balanced process.
Lord Harper (Con)
My Lords, I will make two brief points. First, I support the important point made by my noble friend Lady Berridge about how we deal with misinformation. In an enlightening exchange I had with Health Ministers on the subject of flu vaccination, I discovered that a significant number of people working in the health service are vaccine hesitant and at least some of them are because of the scare stories that we read about vaccination. I suspect that those people will be more informed than the general public, because they work in the health service, so how we deal with misinformation is very important.
My main question, for which I am pleased to be in this House surrounded by expert lawyers, is a legal question on Amendment 188A, tabled by my noble friend Lady Coffey, about putting current case law in statute. My question is aimed at the Minister, I suspect, but if he is not able to answer it today, I would be grateful if he could write to us. Would it be helpful to put the current case law position in statute? Would that be helpful in the sense of giving Parliament’s imprimatur, saying that we are comfortable and that we think the current position is helpful? Would it in any way inhibit or prevent the development of further case law?
Again, because of what my noble friend Lady Berridge said, I am conscious that a lot of the information that people get is from online sources. Because of the fast-changing nature of the world, artificial intelligence and so forth, I would want to make sure that, in this area, evolving ways of people getting accurate information that they can rely on were able to be taken into account by case law; equally, I would want to ensure that case law could take into account information sources that are not reliable and reputable and give guidance to clinicians about how they deal with informed consent. The danger of putting some of that detail into statute is that it does take some time to update. I am looking for factual guidance about whether that is helpful for us to put into statute or whether it is better to leave it for evolving case law. It is a factual question, and I hope that the Minister can either deal with it today or write to us.
Baroness O'Loan (CB)
My Lords, very briefly, I support these amendments. The process is designed only to kill but, inevitably, as noble Lords have explained, there will be complications. People react differently to different drugs. Only with full information will the patient be able to consent. Without it, that consent cannot exist.
I have questions for the noble and learned Lord, Lord Falconer. Why is the doctor required to discuss the nature of the substance—how it will bring about death, how it will be administered—but not to tell the patient that it may not be successful? Why must the doctor discuss with the person their wishes in the event of complications? Why is there no requirement to explain and discuss the risks of complication? How can a patient give informed consent? If the noble and learned Lord does not intend to accept these amendments, can he tell the House what his intentions are?
Baroness Royall of Blaisdon (Lab)
I refer the noble Baroness and other noble Lords to Clause 12(2)(d) of the Bill, which says that the assessing doctor must
“discuss with the person their wishes in the event of complications arising in connection with the self-administration of an approved substance under section 25”.
Baroness O'Loan (CB)
My Lords, that is what I just said—why must the doctor discuss with the patient their wishes in the event of complications arising? Why is there no requirement to explain and discuss the risks of complications?
Lord Scriven (LD)
Does the noble Baroness accept that, under the GMC, for any intervention that a doctor takes, they must explain to the patient the risks and the benefits and then ensure that the patient understands them? It is normal medical practice and has been written in the Bill to make sure that is the case and is written within the report.
Baroness O'Loan (CB)
We are seeking to establish whether this is a regime under the health regulation or where else it lies. I think there are questions to ask.
Lord Falconer of Thoroton (Lab)
The guidance that was given changed in the light of the Montgomery case. I envisage that the GMC guidance would be of some significance and would change from time to time as people’s concepts change.
On the question from the noble Baroness, Lady Berridge, it is Clause 32 and it is about criminal liability.
Baroness O’Loan (CB)
I want to be really clear about this, because it is so fundamental and so important. The noble and learned Lord just described Clause 12(2)(c). Sub-paragraphs (i) to (iii) are not relevant to this discussion, but sub-paragraph (iv) and paragraph (d) are. They require three pieces of information in order to enable an informed wish:
“the nature of the substance … how it will bring about death and how it will be administered”,
and the person’s
“wishes in the event of complications”.
It does not require communication of what the complications might be. I simply ask him: why will he not put in the Bill a requirement to explain the complications?
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 Falconer of Thoroton (Lab)
If the person said, “I will take more poison”, then the person can do that. It is perfectly permissible.
Baroness O'Loan (CB)
Can I ask a question before the noble Lord sits down—eventually? There is a clause—I apologise, but I cannot remember which one it is—that says that if the patient cannot administer, push or whatever the substance, then the doctor can assist. If the patient comes around and is fitting, and has said that they want to die, is the doctor supposed to put their thumb on the switch or whatever it is and push it to make them take it themselves? It seems so uncertain what the obligation of the doctor is. For the people watching outside, this must be horrific. We are thinking about people coming round—we know there is a significant risk of them coming around—and we are not telling doctors in the Bill what they are required to do.
Lord Falconer of Thoroton (Lab)
Again, I do not think it needs to be on the face of the Bill, because the Bill is clear about the rights of the doctor in relation to that.