Friday, September 11, 2015

Assisted Suicide Debate

In the end, 450 MPs turned up on a Friday for a Private Member's Bill, and an unprecedented 85 MPs wrote to the Speaker asking to speak. I'd prepared a 40 minute speech in case not many wanted to contribute. Was limited to just 3mins. Following is the speech which I would like to have made:

"Mr Speaker, the question before us in this Chamber today is not about whether helping someone to take their own life is compassionate or morally right or wrong.  Compassion and morality are common currency to both sides of this contentious debate.  The question is whether assisted suicide should be legalised.  Should the law be changed to license doctors to supply lethal drugs to terminally ill patients to enable them to take their own lives? 

Mr Speaker, that would represent a major change to the criminal law and to the fundamental 'do no harm ' principle that underpins all medical practice.  If this House is to be persuaded that it should go down that road, it needs to be presented with serious evidence that the law as it stands isn't fit for purpose; and, if that's the case, what should be put in its place that would be better - better, that is, for everyone, not just for some.  I have seen no such evidence.

Let us start with the law.  If we are talking about changing the law, we need to know what the law says, why it says it and how it works.  It's not against the law to take your own life or to attempt to take your own life.  But it is unlawful to encourage or assist another person to commit suicide.

Mr Speaker, there is good reason for this distinction.  Laws are more than just regulatory instruments.  An important purpose of the criminal law is to make clear those acts of which, as a society, we disapprove - like killing, injuring, stealing or cheating.  One of those acts is aiding and abetting suicide. 

The present law accurately reflects social attitudes to suicide.  We are not, as a society, judgemental about individual acts of suicide.  But there is a broadly-accepted consensus that, while people who attempt to take their own lives should be treated with understanding and compassion, suicide itself is not something to be encouraged.  That's what all the suicide watches and all the suicide prevention strategies are about.  It is perhaps ironic, Mr Speaker, that yesterday (10 September) was World Suicide Prevention Day. 

It is therefore an offence, under Section 2 of the Suicide Act, to encourage or assist another person's suicide.  However, the Act states explicitly that, before a prosecution for assisted suicide can be undertaken, the Director of Public Prosecutions (the DPP) must give his or her consent.  In other words, prosecution isn't automatic and the DPP has discretion not to press charges if he (or she) judges that a prosecution isn't needed.  Why?

It's because assisting someone's suicide could cover a wide range of criminality.  At one end of the spectrum, it could have been done with great reluctance, after serious soul-searching and for wholly compassionate motives.  At the other end of the scale, it could have been malicious or manipulative assistance with suicide accompanied by pressure and for personal gain. 

That's why discretion is given over whether or not to prosecute.  And it's not just for this law.  Prosecutorial discretion is a feature of other criminal laws too. 

Well, then, does it work?  Yes it does.  Assisting suicide is a very rare offence.  The penalties that the law holds in reserve provide a powerful deterrent against malicious behaviour.  Less than 20 cases throughout the whole of England and Wales cross the desk of the DPP in any one year.  By any standard, that is a very low rate of law-breaking. 

But, if you think that's what would happen under an 'assisted dying' law, think again.  The US State of Oregon introduced a law like the one that is now being proposed in 1997.  Since then the death rate from legalised assisted suicide has risen steadily.  In 2014 there were nearly seven times as many cases as there were when the law came into force.  And, if we take Oregon's current - and rising - death rate from legalised assisted suicide and apply it to England and Wales, we are looking at between 1,500 and 1,600 cases a year.

An 'assisted dying' law flies in the face of all this.  It says that, while we should try to prevent suicide for most people, for some people we should actually facilitate it. 
It sends the dangerous social message that, if you are terminally ill, taking your own life is something that it's appropriate to consider. 

And it removes the deterrent.  Anyone now who is minded to assist a suicide for malicious reasons knows that a spotlight will be shone on his or her actions and that any malicious or manipulative behaviour could come to light as a result.  If we had an 'assisted dying' law, the only risk being run is that the request will be turned down.

Mt Speaker, I am aware that the Hon and Learned Member for Holborn and St Pancras, who held the office of Director of Public Prosecutions between 2008 and 2013, has declared his support for a change in the law.  But I should also draw to the attention of the House that his predecessor as DPP, Sir Kenneth (now Lord) Macdonald, takes a different view.  In an intervention in another place last year he put it this way - I will quote his words from the official record:
"It would be foolish to assume", he said, "that everyone counselling a suicide acts from pure motives or that malice and venality is always absent.  The equation we have developed - a broad legal prohibition on the one hand to deter those acting out of malice, and a carefully explained prosecutorial discretion on the other to protect those who act from genuine compassion - strikes the right balance". 
So, while we should respect the view of the Hon Member for Holborn and St Pancras, we should recognise that it is a personal opinion which is not shared by his predecessor and we should not assume - as I am sure the Hon Gentleman had no intention that we should assume - that it reflects the view of the Crown Prosecution Service.

Before going any further, I should like to deal with a common misconception - that doctors are routinely breaking the law and ending the lives of seriously-ill patients.  Independent research has concluded that in the UK such illegal activity is (and I quote) "rare or non-existent"[1], and the Chair of the pressure group Dignity in Dying, which is campaigning to legalise assisted suicide, declared only last month that such law-breaking is (and I quote) "highly unlikely" and "doctors now work in teams"[2].

Mr Speaker, I have spoken about suicide.  Ah but, say those who want to change the law, it isn't really suicide.  If you are expecting to die in the near future and you choose to take your own life instead of dying of natural causes, you aren't committing suicide but simply hastening their inevitable death. The analogy they sometimes draw is what happened on 9/11 fourteen years ago, when some people who were trapped high up in the Twin Towers chose to jump rather than be burned to death.  Was that suicide? they ask.  And what's the difference between that and choosing to take your own life in preference to dying of a terminal illness?

I'm sorry but these contortions just won't hold water.  We are talking here about amending the Suicide Act.  That law, like other laws, is there to protect vulnerable people.  It applies equally - and should apply equally - to everyone irrespective of age, gender, race - and state of health.  To say that taking your own life when you are terminally ill isn't suicide - and therefore others should be able to assist you to do so with impunity - amounts to removing one group of people from the protection of the law.

The deaths in the Twin Towers were deaths by misadventure.  Those who died had no intention of ending their lives.  They were the innocent victims of external events, and those who jumped were choosing between two horrendous but unavoidable forms of death.  By contrast, the choice we are dealing with here is between intentional hastening of one's own life and dying of natural causes. 

I can understand that the supporters of the Hon Gentleman's bill do not like references to suicide.  In the same way they don't like talking about 'lethal drugs' - the Hon Gentleman's bill refers to them as 'medicines'.  But we need to approach this subject with our eyes wide open and to see what is being proposed for what it is, not for what some might like it to be.

None of this, Mr Speaker, is to say that in some circumstances it might not be a compassionate or moral thing to do to help someone out of this life.  But in a civilised society we don't license an act by law simply because we can empathise with it in exceptional circumstances.  None of us would wish to see a parent who broke the speed limit while rushing a desperately sick child to hospital prosecuted for dangerous driving.  Or a man who injured a nocturnal intruder in order to protect his family charged with assault. 
But no one would seriously argue that we should have laws licensing dangerous driving or assault in advance and in prescribed circumstances.  We expect those laws to be maintained to protect us -  all of us - and exceptional cases to be dealt with exceptionally.  That is what happens now with what is being called 'assisted dying'.  The law has the teeth to deter malicious assistance with suicide and the discretion to deal sensitively with genuinely compassionate cases.  It's been called a law with a stern face and an understanding heart.  And so it is.

For these reasons, Mr Speaker, I am not persuaded that the first test for changing the law has been passed.  However, for the sake of argument, I am going to assume that a case for changing the law has been made and I want to look at the Hon Gentleman's bill and consider whether it is fit for purpose.  So let's move on to the second of the two tests - would the Hon Gentleman's bill be a better than what we have now?  And, in particular, would it be safe to enact?

The Hon Member for Holborn and St Pancras has stated, in The Times, that (and I quote his words) "the important thing is to have safeguards".  I agree with him, as I am sure most of us would.  So let's take a look at the so-called safeguards in this bill.

What the bill contains is a series of qualifying criteria.  It would allow people to receive lethal drugs to take their own lives if they are thought by two doctors:
- to be terminally ill;
- to have less than six months to live;
- to have a settled wish to end their lives;
- to be acting voluntarily;
-to have the mental capacity to take the decision to take their own lives; and
- to be making an informed decision.

If two doctors agree that someone seeking assisted suicide passes these tests, the request would then be passed to a judge of the High Court to confirm the decision.

At a superficial glance, it all sounds reassuring.  But, if we look a little closer, we can see that these so-called safeguards are actually full of holes.  Mr Speaker, I have no wish to try the patience of the House, but this is such an important issue that we cannot just skate over it. 

The first point to recognise is that many of these so-called safeguards are not safeguards at all.  They are just statements of what ought to happen.  It may sound reasonable to say that a person seeking assistance with suicide must have a settled wish and be acting voluntarily.  But how is a doctor to decide whether this is the case?  The Hon Gentleman's bill does not require any minimum steps to be taken to ensure that these conditions are met.  It envisages that the Secretary of State may - not must - publish codes of practice dealing with some of these issues.  But these codes of practice would not appear until after Parliament has agreed to change the law to license assisted suicide. 

Yet how can this House decide whether it is safe to change the law until it has seen how any safeguards would work and reached a view on whether they would protect vulnerable people from harm?  All we are being given as a basis for making this decision are broadly-worded criteria.  Mr Speaker, it's not enough.  The House is being asked, in effect, to sign a blank cheque.
The proponents of the bill argue that codes of practice are a common way of dealing with the detail of legislation.  Yes, they are; but this is not typical legislation.  We are not discussing traffic regulations or planning or tax law here.  We are talking about legislation with (literally) life or death consequences.  For such legislation, codes of practice are more than just 'details'; they are of the essence of what is being proposed and this House needs to see and examine them before, not after, taking a decision about whether the law should be changed.

Now let's look at another problem with these so-called safeguards.  It's fair to ask doctors to diagnose terminal illness and to offer a prognosis - though, as I will explain in a moment, this is not as simple as it may sound.  But many of the conditions for assisted suicide lie outside a doctor's professional field.  How, for example, is a doctor to know whether a request for assisted suicide reflects a settled wish and whether it's a completely voluntary request?  The bill seems to assume that we all have what used to be called 'family doctors' - that is, doctors who have known us and our families for years and are regular visitors to our homes.  I'm sorry, but that just isn't the real world these days.  Many, if not most, of us are registered with multi-partner GP practices and our doctors rarely see us in our home environments.  Yet that's the time when a doctor might just get a fleeting glimpse of whether there are any family attitudes or pressures that might be influencing a request for assistance with suicide.

And then there is the question: where are the doctors to be found who will agree to consider these requests?  A recent poll of 1,000 GPs revealed that only one in seven would be willing to assess a request for 'assisted dying' and to decide whether it met all the criteria.  So anyone seeking this service would be likely to end up in the hands of doctor who had been selected solely for the purpose, who would never have met the patient before and who would have no knowledge of the patient beyond the case notes.

As I have said, even the medical side of these assessments is far from being simple or straightforward.  Yes, doctors are used to diagnosing terminal illness.  But predicting life expectancy is (as Professor Sir Mike Richards, currently Chief Inspector of Hospitals, has said) "fraught with difficulty"[3].  The Royal College of General Practitioners told a select committee in another place a few years ago that, whole it's possible to predict death in terms of days, when predictions are made in weeks or months, the scope for error can extend into years. 

Anyone inclined to doubt this should reflect on the case of Abdel-basset al-Megrahi, who was imprisoned for complicity in the Lockerbie bombing.  He was released from prison in Scotland and repatriated on the basis of a prognosis of three months to live.  He died two and half years later.  Such cases are not at all untypical.

When a terminally-ill doctor is asked by a patient 'how long have I got?', the honest answer is very often along the lines 'it could be three months or it could be twelve months'.  Is that within the terms of the Hon Gentleman's bill or is it not?  The point I'm making, Mr Speaker, is that predicting how long someone has to live isn't like measuring the oil level in your car.  It's more of an art than a science. 

Then there's the question of mental capacity.  Just what is (and I quote from the Hon Gentleman's bill) "the capacity to make the decision to end their own life". 
Capacity is decision-specific - the more serious the decision, the higher the level of capacity required.  A decision to end your life has to be at the top end of any spectrum of gravity and therefore demands a very high bar to be set for determining capacity. 

A doctor who encounters a patient with a suicide wish does not assume that the patient is thinking straight.  He assumes the contrary and takes steps for the patient's protection. Yet the Hon Gentleman's bill requires that capacity should be assumed unless there is evidence to the contrary[4] and it requires referral for psychiatric assessment only in cases of doubt. 

There is a similar provision in Oregon's assisted suicide law, and it has been shown not to work.  Independent research in Oregon has revealed that some people seeking legalised assisted suicide have been supplied with lethal drugs by doctors who failed to spot the presence of clinical depression and failed to refer them to a specialist for treatment.

What we have in the Hon Gentleman's bill, therefore, is not safeguards but simply statements of what ideally should happen.  But simply stating that someone must have a settled wish and mental capacity and be free from coercion won't make it happen - any more than putting up  'please drive carefully' signs will make motorists drive with care.  What are needed are concrete procedures which must be followed in order to ensure that these conditions are met.  But they are not there.

Mr Speaker, I have not so far mentioned the High Court.  Under the Hon Gentleman's bill doctors would decide who did and who didn't meet the criteria for assisted suicide and a judge of the High Court would 'confirm' their decisions.  This may sound reassuring, but in practice it adds little.  The Hon Gentleman's bill does not require the Court to undertake any inquiries of its own in order to confirm the decisions the doctors have made: and it requires the Court to make a decision within just two weeks.   That totally precludes any kind of independent scrutiny.

The High Court does consider cases like this now - for example, requests to withdraw life-support.  But, when it considers such cases, it makes its own inquiries, collects its own expert evidence and makes it own independent decisions.  If we were ever to have an assisted suicide law in this country (and, as I have said, no serious case has been presented that we should), the High Court would probably be most appropriate forum for dealing with such cases.  But it should be the Court alone, and following the Court's procedures - not the hybrid system that is now being proposed, whereby the Court is being asked simply to run a cursory rule over prior decisions by others.

The 'assisted dying' lobby has had years in which to devise proper safeguards but it has sloped shoulders.  It has chosen to rely instead on a law which was passed in an American State very different in character from Britain.  If we were ever to have an assisted suicide law here, it should be a law that learns from the experience of others and is designed around the particular circumstances of this country, not a slavish imitation of a law in a jurisdiction six thousand miles away which has been shown to have significant weaknesses - to which I now turn.

Those who want to see our law changed assure us that Oregon's assisted suicide law is working well and that there have been no cases of abuse or malpractice since it was introduced.  I'm afraid it's not quite like that.  There's no provision in Oregon's law for investigating how requests for assisted suicide are actually being handled.  There is no way of knowing whether careful inquiries are being made into such things as mental capacity or the possibility of unseen pressures or whether requests for assisted suicide are being approved simply on the basis of a consulting room chat.  There's a lot of form-filling involved but no provision for shining a light onto what is actually happening on the ground. 

Ten years ago a select committee of the another place visited Oregon and they asked about this.  They were told, by the equivalent of the Department of Health, that "we are not a regulatory body".  And they were told by the equivalent of our General Medical Council that "we only react to complaints" and that "we don't go out looking for trouble".  So I'm afraid these statements that there has been no abuse of the law in Oregon are little more than wishful thinking.  What we are looking at in Oregon is a closed system. The official reports are simply statistical analyses of how many people have died by legalised assisted suicide, how old they were, what illnesses they had had and so on.  As for what is happening on the ground, they are completely silent.

What we do know, from the official reports and from research, is that the death rate from legalised assisted suicide is rising year by year and that it is now nearly seven times what it was when the law came into force.   What we do know, as I have mentioned already, is that some people with clinical depression have been getting through the net and taking their own lives with legally supplied lethal drugs instead of being referred for treatment.  And we do know there is 'doctor shopping', with many doctors unwilling to have anything to do with assisting suicides and a small number of doctors writing several prescriptions for lethal drugs every year. 

The campaigners here have been telling us for years now that there has been no move to extend Oregon's law.  Well, that's no longer true.  This year the first attempt has been made to extend the six-months-to-live criterion to twelve months.  It may not succeed on this occasion.  But it's inevitable sooner or later - and for a very good reason.

If we look at the criteria that are being proposed for 'assisted dying', such as terminal illness and six months to live, we can see that they are purely arbitrary.  This raises some awkward questions.  For example, if the aim of 'assisted dying' is to relieve suffering, why should it be offered to people who are expected to die of natural causes in the not-too-distant future but not to others - for example, people with long-term illnesses like MS or Parkinsons - who may have years of distress to cope with? 
Or, again, if promoting autonomy is the aim, where does an assisted suicide law leave people who are physically incapable of administering lethal drugs to themselves and whose autonomy could only be met by legalising full-blown euthanasia, as in Holland or Belgium. 

The campaigners deny that they want to go as far as that - and they may well mean what they say.  But the problem is that the boundaries of their law have no basis in rationality and, for that reason, they contain within themselves the seeds of their own extension.  That is what worries many of us who are opposed to legislation of this nature.

Let me quote to you the words of Elizabeth Butler-Sloss, formerly President of the Family Division of the High Court:

"Laws are like nations states", she says.  "They are safer when their boundaries rest on natural frontiers.  The law that we have no rests on just such a natural frontier.  It rests on the principle that we do not involve ourselves in deliberately bringing about the deaths of other people.  Once we start making exceptions to the principles based on arbitrary criteria like terminal illness, that frontier becomes just a line in the sane, easily crossed and hard to defend against encroachment".

So what are we to make of all this?  Let me be clear.  I am not suggesting that taking our own lives can never be justified.  I can envisage highly exceptional circumstances where it might possibly be the right thing to do.  But I have serious reservations about the notion that we should create a licensing system to facilitate it.  I believe our society's view of suicide is a healthy one.  We are not judgemental about it and we treat people who are suicidal with compassion and care.  But we are also clear that suicide isn't something to be encouraged, much less assisted.  As I said earlier, laws are more than just regulatory instruments.  They have to reflect social attitudes.
Which brings me to the subject of opinion polls.  I would not doubt that a majority - possibly a large majority - of people tell opinion pollsters that they would support a change in the law.  But you need to look beyond the banner headlines and read the questions that are asked and at the answers that are given. 

These polls are often sponsored by campaigning groups.  They use gentle-sounding language - like 'assisted dying' instead of assisted suicide and 'medicines' instead of lethal drugs.  They talk of 'strict safeguards', whereas in reality (as we have seen) there are no safeguards, just vaguely-worded conditions. 

And the results of these polls are often publicised in a selective manner.  For example, a recent poll of GPs, to which I have referred earlier, revealed that only one in seven would be prepared to make an assessment of whether someone seeking assisted suicide met all the criteria.  But you won't find any mention of that in the publicity that surrounded the poll.

Public opinion supported going to war in 1914.  It favoured appeasement in the 1930s.  Today polls often show support for such causes as bringing back hanging, banning immigration and leaving the European Union.  Opinion polls have their value: they show what a cross section of people say they think, at a given time and response to specific questions.  But on their own they do not form a valid basis for legislation, especially where (as here) life-or-death issues are involved.

And what about medical opinion?  Doctors are, after all, members of the public.  And they would be in the front line if the Hon Gentleman's bill were to be passed.  They, and their professional bodies, are opposed to legalisation.  Surveys of medical opinion show that around two thirds of all doctors do not want to see an assisted suicide law.  Among those who specialise in treating and caring for the dying over 80 per cent are opposed.  They also show that only one in seven GPs would agree to participate in assisting patients' suicides.  Among specialists in end of life care the figure is less than one in twenty.

When I was young, Mr Speaker, there was a lot of debate about another issue - abolishing the death penalty.  Parliament abolished hanging in the 1960s - though public opinion was very divided on the subject.  One of the reasons it did so was that, just occasionally and despite careful legal process, there were tragic mistakes.  Yet the risk of error here is hugely greater. 

For all these reasons, Mr Speaker, I cannot support the Hon Gentleman's bill.  I have no doubt it is well-intended.  It might possibly give some terminally-ill people what they say they want.  But my concern is for the vulnerable majority.  There can scarcely be a more vulnerable group of people than those who are facing dying.  A terminal diagnosis can be a shattering experience.  Most terminally ill people are not the strong-willed and clear-headed individuals who step out of the pages of this and similar 'assisted dying' bills.  They are often struggling to make sense of what is happening to them and to come to terms with their mortality, they can veer from hope to despair and back again and they may have unspoken concerns about the impact their illness is having on those around them.  They need our protection, they need help to live and to die in peace and with dignity - not to be handed the medical equivalent of a loaded gun.

1 comment:

Jane said...

From one who was in favour of the Bill, but is now wavering, this is food for thought indeed. Thank you, Glyn, for a very reasoned and clear 'speech'.