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Lord Carlile of Berriew: My Lords, it is always a pleasure to follow the noble Lord, Lord Walton of Detchant. He deploys his understanding of medical
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ethics alongside his medical knowledge with great skill, which guides us all for much of our time here. I apologise at the outset, as I have already to the Minister, if I am absent at some inappropriate moments later in the debate. I must deal with another public duty.
I confirm that it is not the intention of those of us who put our names to the new clause to wreck this extremely important Bill; very far from it. I have had the privilege recently of chairing the Joint Committee on the draft Mental Health Bill, which has still to report. I can properly say to the House that in that committee we will, as we have done throughout, recognise the great importance of this Bill as part of the reform of law affecting an important group of people in this country. The noble Lords, Lord Carter and Lord Rix, who are members of the Joint Committee on the Mental Health Bill, have certainly brought home to me how important this Bill is. I have been deeply grateful to both of them and to others.
I have also had the privilege of serving on the also still-to-report committee on the Assisted Dying for the Terminally Ill Bill, chaired by the noble and leaned Lord, Lord Mackay of Clashfern, who I am pleased to see in his place. He would confirm, without giving anything away, that we have wrestled there—and I mean wrestled—with some extremely difficult issues. They are the same issues that give rise to the new clause, on which I and the noble Lord, Lord Brennan, have added our names to that of the noble Lord, Lord Walton.
I make it clear too at the outset that it certainly is not part of my intention, as the noble Lord, Lord Walton, said is also true of him, to overturn the Bland judgment in any way. We are lucky to have in the House sitting in front of me my noble friend Lord Lester, who was the amicus curiae, the friend of the court, in that hearing before the judicial committee of this House, and he can speak with great authority about it. I will make seven short points, which I hope will be capable of confirmation by the Minister. What she says as a Minister in this debate in this House may prove to be of considerable importance in the courts, lest there be any sense of ambiguity. Frankly, along with others, I seek a Pepper v Hart-type statement from the Minister, which would assist the courts in the future.
First, it is self-evident, but it needs to be stated in the debate to satisfy me, that this is not a Bill that in any way introduces or permits assisted suicide. Secondly, this is not a Bill that in any way introduces or permits voluntary euthanasia. Thirdly, it is a broader principle that major changes that have deep-running ethical consequences should have separate legislation, particularly in the area of medical ethics. Fourthly, I hope that the Government will recognise that the withholding of treatment for the purposes of avoiding harm or burden to a patient from that treatment is conceptually entirely different from voluntary euthanasia and assisted suicide. It is the sort of work that palliative specialists do all the time. It is entirely appropriate, and it is an intellectual quantum leap away from voluntary euthanasia and assisted suicide.
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The fifth point is that I hope that the Minister will be able to give an assurance, so it is absolutely clear, that the law has not changed in that sense. Those who practise or encourage assisted suicide or voluntary euthanasia within the jurisdiction of the courts of this country remain at risk of prosecution after this Bill, just as they did before this Bill, together with an assurance that such prosecutions are fully considered by the Director of Public Prosecutions and the Crown Prosecution Service. I say that because it is important to avoid what could become a slippery slope given the emotion that the issues can raise and the misleading descriptions of events that often appear in newspapers. My sixth point is that I hope that the Government will confirm their determination that all powers exercised by third parties over the affairs of others will remain subject to the highest standards of scrutiny.
Finally, I hope that the Government recognise that what, when well, we anticipate of a fatal condition may be significantly different from what, when ill, we face in a fatal condition. I believe that to be a truism, and if so, then prior statements should of course be respected, but it should be clear that they are not always accepted. Circumstances may well change between the anticipation of a fatal illness and the experience of a fatal illness, and the affected person's state of mind may have changed with the circumstances. I shall be satisfied if assurances to that effect are forthcoming from the Minister. Many people who hold the same viewpoint as me about voluntary euthanasia and assisted suicide will likewise be reassured.
Lord Brennan: My Lords, I apologise to the House in general and to the noble Lord, Lord Walton, in particular, for being a few minutes late for the debate. The reason is simple; while we debate the Bill in the Chamber, we also legislate by correspondence, and I had to look at the latest missive from my noble friend the Minister on my Amendment No. 55.
The chief merit of legislation on matters of this gravity should be clarity. The people who are concerned with the question of assisted suicide are interested in this debate to ensure that there is clarity about that topic. Clause 58, the new amendment that came in committee, Clause 4(5) and Clause 25(5) were all designed to protect the interests of everyone, and in particular the vulnerable, with regard to life-sustaining treatment. One further step remains to be clarified, and that is illustrated by the following. An advance decision may read as follows:
"I wish to commit suicide and to be assisted in that by the withholding of life-sustaining treatment and the managing of my resulting death shall then be in accordance with this advance decision".
To an inquiring mind looking at this Bill, such an advance decision, which deals with assisted suicide occurring by medical omission, could be a possibility. I am not saying it is; it could be. That is why the reassurances sought by both speakers so far are so important. If there is such a possibility that that form of advance decision might be binding, even though its intent is suicidal, and even though it would mean that
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a doctor would be required to stop treatment to enable the person to achieve that intent, such a state of affairs falls to be dealt with. That is why the amendment is before the House. As the noble Lord, Lord Carlile, pointed out, it is an ideal opportunity for the Minister to explain with clarity, if it is the Government's position, why that possibility of assisted suicide by omission does not arise.
The amendment is worthy of debate for the following reasons. First, the present law on assisted suicide would not embrace the state of affairs in which someone came to their death because a doctor stopped treatment on a request based on a suicidal intent. The omission, the stopping of the treatment, is neither wilful neglect nor an active step taken to further death.
So the first point is that the Suicide Act does not, on the face of it, apply to the circumstance I described. The second—the necessity of debate on this issue—is that in his letter of 18 January to Archbishop Peter Smith, my noble and learned friend the Lord Chancellor said that Clause 58 referred to the Suicide Act, which, he said, has no relevance to advance decisions. To make sense of that we must add, "Or anything done, or omitted to be done, pursuant to a valid and applicable advance decision". The Minister echoed those sentiments in Committee on 27 January, Hansard col. 1505.
We are therefore in a different legal circumstance, according to the framework of this Bill, whereby the process of an advance decision leading to the stopping of treatment may have to be considered as possible assisted suicide—or not, as the Minister may reassure us in due course.
If there is this possibility, however, the next concern meriting debate is the position of the treating doctors. On the face of it, the advance decision that I described would have to be carried out by a doctor, in the sense that they stopped treatment. There is no reassurance to be sought by saying "Let the courts decide if there is doubt", because the courts would look to this Bill to tell them what the law was.
These are genuine concerns. Like the noble Lord, Lord Carlile of Berriew, I want to emphasise that there is a plain legal and moral distinction between saying "in certain circumstances I do not want any more treatment, including ANH" and "I want to be helped to die". They are not the same. We do not want any elision of the two. We want clarity about the one and the other. That is the purpose of the amendment. It is not designed to provoke the idea that people will be subjected to their lives being continued by wholly unnecessary and uncalled-for treatment—not at all. It is not intended that either of the subsections should embrace theoretical, even bizarre, circumstances. The question is simple: does this Bill mean that you cannot expect to use an advance decision to assist your own suicide by having a doctor stop treatment?
The response to such a question, I hope, is not necessarily a lawyer's response. To use the phrase of my noble friend Lord Morgan in the last debate, even though we are lawyers, look at what we say for
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intelligence and not background. I am asking, I hope, an intelligent question. I hope the Minister's answer—or, if necessary, my amendment—is going to be clear.
We need to bear in mind that this state of affairs of advance decisions is the one part of the Bill concerning life-sustaining treatment that does not involve the concept of "best interests". The Bill expressly excludes whether it is in the person's best interests from the consideration of an advance decision. So Clause 4(5), helpfully and positively introduced by the Government, refers to cases other than advance decisions and says that, in determining best interests, account should be taken of the fact that there should be no motivation to desire death in relation to life-sustaining treatment. So Clause 4(5) does not help. Advance decisions stand on their own—hence the need for clarity.
It would be most unfortunate if this amendment were thought to affect the decision in Bland—whatever one's views as a lawyer or citizen might be about that decision. This amendment does not change the law. It does not introduce any new principle of criminal or civil justice. It seeks to clarify the existing law as best it can. It is simply not correct to say that it would undermine the decision in Bland. That is an unjustified fear. If it were justified, it could easily be remedied by a two-line amendment to permit the effect of the Bland decision-making process to continue as before.
When one looks at the critique, which was understandably advanced by the Government very late in the day, it is important to remember where we are, as we heard in the last debate. We are possibly at the end of this Parliament. There is a tight timetable for this Bill in another place. I understand only one hour will be allowed for Lords amendments. That means that we must give this amendment the very greatest consideration now.
In doing so, let me make the following points. It is not a consequence of this amendment that doctors could force non-beneficial treatment upon patients. It is in no way intended to cause that to happen. The fact that it is suggested that this amendment would deny people the right to refuse medical interventions to their bodies is, I fear, moving from the theoretical to the bizarre. It is not so intended.
It is intended, however, to deal with the principle of double effect. I have great admiration for the lawyers in the Department for Constitutional Affairs who have conducted work on this Bill. However, when the Professor of Law at Oxford University, an acknowledged international expert on law and ethics, says that this amendment settles the concerns about double effect, and one is met with the suggestion that he has got it upside down—that the amendment destroys double effect—I stand back a little. It may just be that the pressure of events in the passage of the Bill has lessened the edge of the intellectual acuity of some of the Government's lawyers. I prefer Professor Finnis's view.
These are genuine amendments to the Bill, seeking clarity on an important question. Some 40 or so of your Lordships thought it appropriate to put their names to it. As your Lordships will remember, in the
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14 December debate in another place, many were concerned, including on our Labour Benches, that we should have clarity about this matter. That concern remains.
If it is thought that Amendment No. 1 is too complicated or unnecessary, I invite your Lordships to consider, very briefly, my Amendment No. 55 as an alternative, to which I make four short points. The amendment refers to advance decisions. If it is included in the Bill, it will send exactly the same signal about advance decisions not being motivated by a desire to cause somebody's death as Clause 4(5). They mirror each other in seeking to serve the same social effect.
The Government have thought, very sensibly, that many people might turn up in circumstances where it is going to be plain to the doctors that the original decision was affected by depression, mental disorder or illness, and that is where the suicidal intent came from. In some cases, however, there may be no such evidence from the doctor, and no reason for doubt. Surely it is important to make clear, through either the Bill or ministerial statement, that the Bill offers no legal support to those who manifestly and expressly seek to use it to be assisted to commit suicide by omission.
I close by pointing out that, at Second Reading, many of us welcomed the Bill, myself included because of my experience over 30-odd years in the law dealing with people who have suffered serious incapacity and their need for justice. That does not mean that I close my eyes to the reality of what might follow after the Bill if there is not clarity on the topic.
An advance decision used to be called a living will. A conference in Holland 10 or 15 years ago was entitled, "Living wills—the passport to euthanasia". The Euthanasia Society of America makes exactly the same connection between living wills and the onset of a debate on euthanasia. It is a reality. Although people listening to and participating in this debate may be extremely concerned that we are concentrating on too close an area, the aftermath that I have just anticipated could make the debate as important as those of us who tabled the amendment think it to be.
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