House of Lords Debate - 1 March 2007

'Mercy killings' have been debated in The House of Lords. The subject arose during a debate on proposed changes to the murder laws; these are being reviewed currently as part of Law Commission report, to which CNK made a submission.

Baroness Finlay of Llandaff, professor of Palliative Medicine at Cardiff University, spoke eloquently:

...I speak with hesitation as a doctor who has no legal training but who, like every other doctor, is of course subject to all aspects of the law, and as one who often wrestles with end-of-life decisions and finds helpful the current “bright line” of the law in prohibiting deliberate killing.

...The partial defence of mercy killing may need a different name, because the term “mercy killing” is morally loaded, presupposing and implying that the motive was purely compassionate and merciful. It does not encourage other secondary motives, if they exist, such as personal benefit, to be equally assessed, even though we are here talking about the deliberate ending of the life of someone who appears to be in great distress.

...In other jurisdictions, it seems that the concept of force majeure in the medical context has developed in a way that would be incompatible with English law on murder. It is open to variable interpretation, including the level of knowledge and skills of the doctor, if it is a physician who deliberately ends life.

The Criminal Law Revision Committee recommendations on reform of 1976 made no reference to the state of mind of the victim. Indeed, one is left after the victim's death only with the perception of others of that victim's state of mind, yet such proxy assessments with hindsight are not accurate and are often skewed by the person's own emotional distress, particularly if they were close to the person who died. Pressures, real or perceived, can coerce a person to feel that their life is of no value. Only too often that changes when good care is given in a way that enhances dignity. The vulnerable emotional state of the person who is frightened, in despair and possibly distorted by undiagnosed depression, which occurs in almost one third of those with serious life-threatening illness, should not be underestimated.

It is worth noting that the Criminal Law Revision Committee in the final report declined to recommend the creation of an offence of mercy killing, saying:

“It was said that our suggestion would not prevent suffering but would cause suffering, since the weak and the handicapped would receive less effective protection from the law than the fit and well because the basis of the suggested new offence would rest upon the defendant's evaluation of the condition of the victim. That evaluation might be made in ignorance of what medicine could do for the sufferer”.

I remind noble Lords that Dr Cox, whose actions were publicised as a mercy killing, was convicted of attempted murder. He was seriously admonished by the General Medical Council for failing to take advice from colleagues who knew far more about pain control and who would have been able to offer constructive clinical advice in how to relieve the overwhelming distress of the patient.

That highlighted the problem of the doctor who works for far too long in the belief in his or her own competence across a broad range of areas. Another danger is the doctor, nurse or other carer who is tired, burnt out or simply a little lazy, and who perhaps dislikes the patient and finds caring for them taxing. It is all too easy to abandon efforts at diagnosing the true roots of distress and working hard to find resolution through meticulous attention to detail. Subtle secondary financial pressures are also felt by clinicians, and we know from the Dutch evidence how financial factors can subtly influence the thinking of some when it comes to end-of-life decision-making. The commission's learned report points out the complexity of the subject of so-called mercy killing and that it is integrally linked to the debates around assisted suicide, physician-assisted suicide and euthanasia. They felt that views they had received on mercy killing as a partial defence were potentially one-sided, since their original consultation had not asked about this.

The limits on the proposed reformulation of the criteria for diminished responsibility in the light of the evidence from the Royal College of Psychiatrists are to be welcomed. When tragic situations arise and lead to so-called mercy killing, all will argue for compassionate reasons, whether in defence of the perpetrator or from the standpoint that the current law protects the most vulnerable in our society.

The final recommendation at part 7 is that the law should remain unchanged, pending a public consultation. I hope that any such consultation will be extensive and in-depth and will include those with expertise from all sides of the arguments. The complexities and ramifications of such changes in the law are far beyond the decisions and conclusions reached through simply conducting focus groups or population polls. The discretionary sentence, as my noble friend Lord Bledisloe suggested, may enable considerations of a partial defence of mercy killing, or whatever else it is called, to be looked at, devoid of such current pressures.

Lord Brennan also contributed to the debate:

...I turn to the Law Commission's report, which calls for much more substantial reform of the law of murder...

...We really must try and get it right this time. That will require a new statute defining the law of murder. Its underlying characteristic should be - I do not apologise for the word - killing. Ending another person's life-whether with intent, with recklessness or through compassion-is a killing. Semantic fudge is not appropriate or sensible in this area.

...Surely in the criminal law of this nation above all, coherence, clarity and certainty should find some place in our legislative endeavours. Surely the public would benefit, and the courts would be able to apply the law much more efficiently. The conclusion that we should all come to in a debate that is too short to consider detail, but rather should look to policy, is that we should reform the law of murder in the fullest and most comprehensive legislative way that we can contemplate, and then reform the criminal law. Then we can sit back as a legislature, and say that we have done something worth while for the country.

Read the full debate by clicking here.