Assisted Dying Bill [HL]

Lord Mackay of Clashfern Excerpts

Friday 7th November 2014 Lords Chamber

[Lord Mackay of Clashfern (Con)]

I had intended to make a short observation but the intervention came from the opposite Front Bench, so I did not find it possible to speak. I rather go with the form of the amendment proposed by the noble Lord, Lord Pannick, subject to this. It is essential in the Bill that there should be a terminal illness. That is a very important issue which requires determination before the Bill operates. The amendment tabled by the noble Lord, Lord Pannick, as far as it goes, does not actually require—if I have understood it right, and I am subject to correction like everybody else—the judge to be satisfied that the patient is suffering from a terminal illness. I think that that is a part of the definition that requires to be taken into account.

For my part, I was rather expecting that the detail of the amendment would be settled before Report. In the mean time, what we are really considering is whether, as the noble and learned Lord, Lord Falconer, said, there should be judicial intervention at all. On that point, I think that a very large proportion of the noble Lords here today are rather in favour of it. However, the precise detail of it is quite important. Therefore, I find it hard to believe that it is right that we should settle on the particular form of the amendment today.

[Baroness Butler-Sloss]

I very strongly support the noble and learned Lord, Lord Mackay of Clashfern. I actually think that the amendment tabled by the noble Lord, Lord Pannick, has a great deal to commend it, and I would have said that to him. However, the point made by the noble and learned Lord is terribly important. Who is going to be the deciding factor on the terminal illness? I believe that this is an enormously important issue for Report—and I am at the moment assuming that the Government will give us time to have Report. I refer to what was said by the noble Lord on the Front Bench. This has got to a point of such importance that I really do not think that it should be addressed at this stage.

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[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 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 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 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.

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[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 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.

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[The Earl of Listowel]

My Lords, I will speak to Clause 1, and in particular to the concern about young people aged from 18 to 25. As I stressed before, this is a very small group within the larger group we are discussing, and one has to be very concerned that they get the appropriate healthcare and health professional treatment so that they can make fully informed, proper decisions. It is notorious that the transition from children’s services to adult services often causes issues in the treatment of young people.

Many young people may have some difficulty in fully appreciating their own mortality. While it is easy for us to recognise, it may be more difficult for an 18 or 19 year-old to realise that ending one’s life is absolutely final. Therefore I would appreciate consideration being given to the welfare of that particular group, so that whatever progress is made on the Bill in the future, the welfare needs of 18 to 25 year-olds are taken into very careful consideration.

[Lord Mackay of Clashfern]

My Lords, my Amendment 10, which was superseded, accords with the amendment moved by my noble friend Lord Cavendish. I just want to explain that all I wanted to do was to put the condition about informed consent into Clause 1, which contains the lists of qualifications. There is of course a reference to informed consent later on in the Bill. That was all I wanted to do, and it goes along with what is done by Amendment 4 in the name of the noble Lord, Lord Pannick, which talks about informed wish. I therefore assume that that would be simply a technical matter of moving it.

[Lord Mawhinney]

My Lords, I follow my noble and learned friend Lord Mackay. I was thinking along similar lines on Amendment 10 and fully informed decisions. I am sure that all of us want decisions to be fully informed, so I wonder whether the noble and learned Lord, Lord Falconer, could before Report give some thought to whether he is satisfied that fully informed clearly includes, first, being told what the options are and, secondly, on the part of the patient, having some comprehension of what he or she is being told. Running off a list of options does not mean that the recipient is fully informed if he or she does not understand what the options really mean.