Assisted Dying Bill [HL]

Lord McColl of Dulwich Excerpts

Friday 16th January 2015 Lords Chamber

[Baroness Campbell of Surbiton]

I think that was a question to me from the noble Lord, Lord Alton. The answer is, yes, I did know about Scope’s role. In fact, Scope approached me to ask me to emphasise issues around prognosis in the debate today.

[Lord McColl of Dulwich (Con)]

My Lords—

[Lord Hunt of Kings Heath]

My Lords, this has—

[Lord McColl of Dulwich]

I have been trying to intervene for some time. I strongly support the amendment on terminal illness tabled by the noble Baroness, Lady Finlay, but noble Lords will be pleased to know that most of what I was going to say has already been said so I will not repeat it. It was said very ably by the noble Baroness, Lady Campbell of Surbiton, for whom I have the greatest admiration and with whom I have worked for many years.

There is an aspect of the definition of terminal illness that I should like to deal with. Under the benefit rules, an attendance allowance or a personal independence payment can be made under special rules if somebody has a terminal illness. The definition is therefore important. My understanding is that, for the purposes of receiving one of those benefits under the special rules, someone is defined as being terminally ill if they have,

“a progressive disease and his death in consequence of that disease can reasonably be expected within 6 months”.

This definition is set out in Section 66 of the Social Security Contributions and Benefits Act 1992. Are we going to say that anyone who receives one of these benefits would be eligible for assisted suicide on the basis of their physical health? I raise this as a genuine question because the Personal Independence Payment Handbook, issued in August 2014, also states:

“Awards made under the special rules for terminal illness will be for 3 years”.

This seems to be rather at odds with the expectation that the person is reasonably expected to die within six months.

To get this benefit, individuals have to get a completed DS 1500 form from their doctor, as has been mentioned. In a forum discussion on the internet, many of the individuals who got the benefit as a result of this form were definitely of the view that they would be living for more than six months. I am concerned that in future they might be encouraged to consider assisted suicide because they would fall within the definition of the Bill. The form was also referred to in the House of Lords report on the Bill of the noble Lord, Lord Joffe. I quote one doctor, who said:

“A simple bit of practical evidence is one of the benefit forms that are filled in for patients assigned to the doctor thinking that the patient has six months to live. I would not like to count how many of those forms I have signed in my life for patients still living after a year, eighteen months or even longer”.

Another doctor giving evidence to that committee about decisions on who had a terminal illness said that,

“doctors make arbitrary decisions about when a patient has reached a terminal stage. This can be when the patient is discharged from specialist care, when the patient moves from a curative state to a palliative state; some just use the position when what is known as the DS 1500 Form is actually prescribed, or some just use the point where patients have become bed-ridden or immobile”.

Surely we need something far more rigorous than someone being “reasonably expected” to die within six months when the consequence is that their life is actually ended. I fully support Amendment 20 of the noble Baroness, Lady Finlay, to remove the word “reasonably”.

[Baroness Meacher]

Perhaps I may pick up the point about a six-month prognosis. The point there is that one’s life is ended. The whole point of the Bill is that one’s life is not ended simply because one starts the process at the point when one receives the six-month prognosis. It is all about having autonomy and a sense of control over one’s own situation, so that when life becomes unbearable one can then take that control.

[Lord McColl of Dulwich]

I thank the noble Baroness for that clarification. I note that in August 2011, 13,400 individuals receiving attendance allowance in England and Wales were considered terminally ill under the benefits definition. That would be a substantial group of people who might reasonably be eligible to have their death hastened by assisted suicide. We need to be very clear what we are talking about in relation to a terminal illness and, at the moment, there is a lot of room for ambiguity. Ambiguity does not lead to safeguards.

[Lord Warner]

Can I seek clarification from the noble Lord? What he is trying to do is challenge the point that I was trying to make. I should like to make clear to the Committee the point that I was trying to make—which I do not think was the point he was trying to rebut.

My point about Section 82 of the Welfare Reform Act is that it bases public policy on the assertion that it is reasonable to ask doctors to make a judgment on whether someone is likely to be terminally ill and die within six months. It does not say that we expect 100% perfection from those forecasts. My point was that Parliament has decided in legislation that it is reasonable to have a definition of terminal illness that we can expect the generality of the medical profession to understand and apply on a reasonably consistent basis. In my judgment—the noble Baroness, Lady Hayman, may be able to correct me—it would be a breach of medical good practice and possibly an offence for doctors knowingly to sign those certifications if they did not clinically believe that the person was likely to die within six months.

[Lord McColl of Dulwich]

My Lords, I would not dream of trying to rebut anything that the noble Lord said.

[Lord Alton of Liverpool]

My Lords, I support what the noble Lord, Lord McColl, said. He is one of the foremost medical authorities in your Lordships’ House. We know that many of the royal colleges and the British Medical Association, speaking for 153,000 doctors, say that it is not possible to legislate safely—which is the point that the noble Lord, Lord Cormack, made.

However, I recall that when my late father was dying and I went to spend time with him during the last part of his life, the doctor told me that I should make long-term provision for long-term care. After he left the room it was the nurse, who was the wife of one of the policemen who worked in the Houses of Parliament at that time, when I was in another place, who said to me, “David, you don’t need to make long-term provision. In my view, your father will be dead before the end of this weekend”. Needless to say, it was the nurse rather than the doctor who got it right.

Many noble Lords will have read the briefing from the Royal College of Nursing, which arrived only today. It says:

“Terminal illnesses are often extremely unpredictable with periods of improvement and deterioration. This can make it extremely difficult to pinpoint when someone might die … we remain concerned that diagnosing that a patient is expected to die within six months could result in inaccurate judgements through no fault of the medical practitioner”.

That is the point that that noble Lord, Lord Warner, has just made. It could lead to litigation against doctors and nurses if we do not put in far better safeguards than the Bill provides at present.

[Lord McColl of Dulwich]

I thank the noble Lord for that intervention. I have been in practice for very many years and I still am. One of the things that always struck me was how wrong I was about trying to predict when a patient would die. I well remember a typical case of a lady who was only 28. She had inoperable cancer of her throat. She was in great distress, with pain and distressed breathing. I saw my job as a doctor to relieve all her symptoms, whatever the cost. I said to her, “If you like, I can put a needle into your vein and titrate you with heroin”. Heroin is a marvellous drug. You have to dilute it in a large volume and not use the small volumes in the ampoule, because if a gun goes off you might suddenly give them too much too quickly. I titrated her and asked her to tell me when all the symptoms had gone. Eventually she said, “Yes, that’s fine”. It was a huge dose of heroin. I had no problem about giving it. The strange thing was, not only did it not kill her, it gave her a new lease of life. It is unrelieved pain that is the killer.

[Lord Berkeley of Knighton]

The noble Lord said earlier that he gave his patient a huge dose of heroin. He used the words, “whatever the cost”. If it had killed her, would the noble Lord feel that he had assisted, maybe nobly, in her dying?

[Lord McColl of Dulwich]

The problem is that when you give these very powerful drugs, the symptoms are relieved but the patient is subject to the complications of being in bed for a long time, including clots in the veins of the legs. These may dislodge, go to the lungs and kill them, or they may develop pneumonia because their breathing is not quite as effective. Those are the complications but I resist the idea that I am deliberately killing them; I am deliberately relieving all their symptoms.

[Lord Elton (Con)]

My Lords, the point has been made, as though this closes the need for a definition, that a definition in the form DS 1500, which the noble Lord, Lord Warner, and many others have referred to, has already been passed by Parliament. I merely want to say that the need for precision when it is a question of providing social services benefits in cash or in kind is much less demanding than the need for precision when the question is pulling the plug on somebody’s life. Therefore, it is not unreasonable to return to this issue.

--- Later in debate ---

[Lord Falconer of Thoroton]

I thought that I had answered the question but I will answer it again. A doctor has concluded that he or she reasonably believes that you have six months or less to live; another doctor has confirmed the diagnosis; and the courts have concluded that it is an appropriate case for an assisted death. Thereafter, my view—I should be clear about this—is that you should be entitled to have an assisted death as prescribed by the Bill. I am therefore against the decoupling of the beginning of the process from the time at which the drug could be taken.

The noble Baroness says that these discussions are taking place at the moment. No, they are not; the discussions taking place are about how somebody wishes to die. It does not involve discussions about assisted dying in the context of my Bill because that is not permitted at the moment, so this is dealing with a new situation. My clear answer to her is that I am not in favour of the decoupling. My proposition is that if two doctors certify and the court says yes, once that process has been gone through, it is for the patient to decide the moment he or she takes the drug, and there should not be another process for a doctor to certify that the patient has six weeks or less to live.

I shall deal with the other points raised in this group. First, for reasons I just cannot understand, the noble Lord, Lord McColl, and the noble Baroness, Lady Finlay, suggest that where the Bill states,

“reasonably expected to die within six months”,

or less, the word “reasonably” is deleted. That seems unwise. In my view, it is appropriate that a doctor giving such a diagnosis has a proper and reasonable basis for doing so. I am against that change.

In the context of the amendment moved by the noble Lord, Lord Carlile, the noble Baroness suggests we refer to a “licensed” practitioner rather than a “registered” practitioner. Although I do not agree with the amendment moved by the noble Lord, Lord Carlile, the point that the noble Baroness, Lady Finlay, is making appears to me to be a good one. We should discuss, outside the Chamber, the precise language. The noble Baroness, Lady Murphy, has an amendment that puts the language in a slightly different way. We are all concerned to allow this to be done only by doctors who have the appropriate qualification and are in practice. I am happy to agree an amendment that reflects that.

The noble Baroness, Lady Campbell, made a number of powerful submissions in relation to how this affects disabled people. The noble Baroness, Lady Brinton, responded to them and made it clear that disabled people can have different views about the adequacy or otherwise of the Bill. I was very struck by the reference to “The Theory of Everything” and Stephen Hawking, who is, in fact, in favour of some process of assisted dying.

The underlying anxiety that has been expressed to me by disabled people is that if we pass an assisted dying Bill, we in some way devalue the lives of disabled people and put them more at risk. I do not believe that we devalue disabled people in any way by passing this Bill. I believe it is incredibly important that disabled people have exactly the same options as everybody else when they are terminally ill. I also believe that the safeguards in the Bill are much stronger than the existing safeguards in relation to decisions about treatment. I completely echo the point that the noble Baroness, Lady Brinton, made: this will not be forced on anybody. It is an option to be asked for, and even when asked for, it can be given effect only when two doctors have certified that it is appropriate and the High Court of Justice has said that it is okay. Having spoken widely to disabled people, I do not believe that it puts them more at risk than the population as a whole. Although I, like everyone else in the Committee, am very moved by what the noble Baroness, Lady Campbell, said, I do not accept the criticism that she makes in relation to the Bill.

I think I have dealt with all the main proposals. This has been a very worthwhile debate. The areas where I think further discussions would be of value are in relation to the “doctor for hire” proposition and how we properly identify the qualification required for a doctor. In relation to the other proposals, I am broadly against them.

[Lord McColl of Dulwich]

I shall just explain some of the worries that the noble Baroness, Lady Campbell, has.

[Noble Lords]

No!

[Lord McColl of Dulwich]

In a sentence, every time she goes into hospital, they say, “You don’t want to be resuscitated, do you?”. A lot of disabled people have that question put to them. Does the noble and learned Lord think the Bill is going to change that?

[Lord Falconer of Thoroton]

I will take that up. With regard to my Bill, if the situation were reached—the noble Baroness, Lady Campbell, referred to this—that somebody had very low air and decided to take advantage of my Bill, they would have to get two doctors to approve it and the High Court of Justice would have to say yes. That is a very different situation from the one that the noble Lord describes. My Bill gives much greater protection as regards somebody who is asking for death than the situation that the noble Lord describes. It is for that reason that I cannot understand why he says that my Bill might make it worse.