Four years after the then Director of Public Prosecutions published his criteria for prosecuting in instances of assisted suicide, Peers last week locked horns over the merits and demerits of the guidelines.
Baroness Jay's debate in the House of Lords 'To ask Her Majesty's Government whether they continue to be satisfied with the Director of Public Prosecutions' Guidelines on prosecution for assisted suicide' was held on 5 March. While a number of high quality interventions were made concerning the guidelines in practice - balancing mercy with justice - and their effect on the doctor-patient relationship, several peers went beyond the debate's scope and used it to argue for the legalisation of assisted suicide, in line with Lord Falconer's bill. Such proposals were met with strong rebuttals, especially from Baronesses Campbell and Grey-Thompson; we reproduce highlights below.
Lord Beecham's observation that 'Tonight's debate is not on the general principle of assisted dying... Rather, this debate is—or should be—on the narrow or legal issue of how the current criminal law is to be applied' came too late for a number of Peers. Lord Falconer told the House that 'The reason why there are these guidelines is that Parliament will not address the issue', after Baroness Jay declared that 'The simple truth is that Parliament should act', in a collective failure of memory which has become characteristic of the assisted suicide lobby.
Lord Alton of Liverpool was on hand to assist them:
'...this is not a new debate that we are having this evening. After all, we have had two Select Committees of your Lordships' House, as well as numerous debates and indeed votes in your Lordships' House, and we have heard the arguments of the British Medical Association—after a vote among its members—and the royal colleges, the disability rights organisations, the palliative care movements and many of the organisations that have been referred to. Once all the arguments were put for grounds of public safety alone, your Lordships decided that it was not safe to change the law.'
Baroness Campbell of Surbiton:
'I am disappointed that there are Members who refuse to accept previous decisions made by this House and relentlessly bring the issue of assisted suicide back for debate again and again.'
Former DPP Lord Macdonald of River Glaven outlined how prosecutorial discretion works:
'By law, every prosecutor examining a case must ask not one, but two questions. First, is the evidence sufficient for prosecution? Secondly, if so, would a prosecution be in the public interest? That is why an 80 year-old will not be prosecuted for shoplifting or a careless driver for a collision in which her own child is killed. It is also why, during my time as DPP, no one helping a loved one travel to Switzerland to die was prosecuted, even if the evidence that they had committed the crime was perfectly made out...I believe that the equation that 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. It shields those who need protection on both sides: the terminally ill from exploitation and those whose compassionate assistance may be sought from prosecution.'
'There has been only one successful prosecution for attempted assisted suicide since the new guidelines came into effect. However, the threat of prosecution still hangs over everybody...'
What Lord Warner sees as evidence of failure, many others will see as an assurance that vulnerable people are protected - the threat of prosecution is in instances of compassionate motivation a reassurance that others acting from less virtuous motives will, in Baroness Jay's words, 'feel the full force of the criminal law.' Justice Minister Lord Faulks later updated the House on how the law has in fact been applied in the last five years:
'Noble Lords might want to know something about the statistics. Records show that from 1 April 2009 to 13 February 2014, 91 cases have been referred to the CPS by the police recorded as assisted suicide or euthanasia. Of those 91 cases, 65 were not proceeded with by the CPS, 13 were withdrawn by the police and there are currently eight ongoing cases. One case of attempted assisted suicide was successfully prosecuted in October 2013. The facts of the matter would not trouble anyone, whichever side of the argument they were on. It involved someone with lower mental capacity. Four cases were referred onwards for prosecution for murder or serious assault.'
Lord Falconer's disinterest in debating assisted suicide beyond the parameters of his own 'Assisted Dying Bill' was demonstrated in this extraordinary statement:
'...the Director of Public Prosecutions essentially decides whether to prosecute based on the defendant's motive... so the decision is made without the putative defendant having any opportunity to challenge the evidence on which not just the decision to prosecute is made but, essentially, whether guilt or innocence is involved.'
Lord Falconer is a lawyer, and is fully aware of the simple principle in English law that a person is innocent until proven guilty in a court of law. That's it.
Baroness Jaymused 'that the terms of prosecutorial discretion rest exclusively with the lawyer who holds the office of Director of Public Prosecutions. There is no certainty that the prosecution guidance could not be altered by successive DPPs.' Lord Altonresponded succinctly by quoting the Attorney General's statement to the House of Commons in 2012 that 'If a future DPP overturned the guidelines, he would be judicially reviewed for behaving in a rather whimsical way.' We might also add that, in contrast, no Parliament can bind its successor, or even itself - as evidenced by the disastrous and rapid scale of extension in the Low Countries' euthanasia laws.
The irrefutable evidence of incremental extension in Belgium - where euthanasia has been made available to deafblind people, those with anorexia nervosa, a person dissatisfied with their gender reassignment and now children - was cited by a number of peers. Noted disability rights advocates Baroness Campbell of Surbiton and Baroness Grey-Thompson went on to speak to the risks any law which sought to go beyond the current settlement posed to disabled people.
Baroness Campbell of Surbiton:
'Terminally ill and disabled people are in a worse position today than was the case five years ago. National economic instability means that public support services are under more pressure than ever. That has hardened public attitudes towards progressive illnesses, old age and disability. Words such as "burden", "scrounger" and "demographic time bomb" come to mind, and hate crime figures in relation to vulnerable people have increased dramatically. This is a dangerous time to consider facilitating assistance with suicide for those who most need our help and support. It is not only dangerous for those who may see suicide as their only option, but can be tempting for those who would benefit from their absence.'
'The early policy listed, "a terminal illness; a severe and incurable physical disability; or a severe degenerative physical condition from which there was no possibility of recovery", as a mitigating factor. I am so relieved that this was removed. This was done because it was considered that it could have the unintended effect of discriminating against people who are seriously ill or disabled by implying that assisting their suicide was of less concern than assisting the suicides of other people... Disabled people face this discrimination every single day of our lives...'
'I refer to this change to the draft policy because it illustrates a wider issue. Those who want a change to the law are anxious to reassure us that their demands are limited to people who are terminally ill and that others such as the chronically ill or disabled people should not feel at risk. This argument does not hold up, as Belgium has shown us... Once we start redrawing the law arbitrarily around particular groups it becomes just a line in the sand. If it can apply to terminally ill people, why not chronically ill people? If chronically ill people, why not disabled people? Such a law is inherently unstable.'
Lord Dubs sought to rubbish such fears:
'Surely, if we as a country have confidence in the integrity of our legal system, then if we were to change the law—as I hope we shall—we can do it in such a way that it does not represent a slippery slope but a considered change that Parliament has approved.'
Is Lord Dubs, who has 'voted very strongly for more EU integration', questioning the integrity of the Belgian, Dutch and Swiss legal systems?
Lord Joffe, who brought the failed 2006 Assisted Dying for the Terminally Ill Bill (at which time he made clear that he saw his bill as a mere first step) reaffirmed his view that Baroness Grey-Thompson's scenario should in fact be the case:
'...even a patient with the most serious physical disabilities, but who has mental capacity, has the same right to make decisions about his or her life as any other terminally ill patient.'
Baroness Finlay of Llandaff:
'Patients are easily influenced by doctors and nurses: a word, a glance, a gesture can infer hopelessness. Patients trust us because they have to. They rely on us for information, believing that we have their best interests at heart. Patients can very easily be made to feel that they are a burden on the system, that the future is unrelentingly bleak, or that they would be better off dead.'
'One factor listed in the policy for prosecutors as a potential aggravation of the offence is a circumstance whereby assistance with suicide has been provided by a doctor or a nurse to a patient under their care. Some, including the noble Baroness, Lady Jay, have claimed that this factor inhibits discussion between doctor and patient—that doctors are afraid to discuss the subject of assisted suicide with patients who raise it, in case such discussions should be construed as assistance and result in charges being brought against them. This claim is unfounded. The position was made quite clear last year in guidance issued by the General Medical Council'
Lady Hollins then cited evidence given to Lord Falconer's 'Commission on Assisted Dying' in 2011, including that of a representative of the GMC, the Medical Protection Society, a consultant in old-age psychiatry and the medical director of a hospice who all stated that the issue was infrequently brought up by patients and that when it is - there is clear GMC guidance in place.
(You can read Lady Hollins' remarks in full here)
Baroness Murphy declared in a feverish speech decrying the baronesses:
'the BMA has never asked its members about this—I have never been asked by anybody in the BMA. Of course, it is led by people who are violently opposed to any new policy, so that is hardly surprising.'
We refer the noble lady to the BMA's Annual Representative meeting, 2012.
Twenty nine Britons died at the Dignitas clinic in 2013 and over several years, the families of those taking this path have at times attained a high profile after being questioned by police under the DPP's guidelines. A number of Peers drew attention to the phenomenon.
Former Commons Speaker Baroness Boothroyd stated that 'Few people have the means to end their days in a Swiss clinic where suicides are a paying proposition' but this argument is irrelevant while we continue to hold that it is not in any way a good thing for patients to feel that suicide is their only option. Indeed, financial considerations are one of the most compelling arguments against legalising assisted suicide - as the much lionised Oregon tells us. Baroness Murphy claimed that 'services for terminally ill people have got substantially better over the past five years... The economic circumstances of this country have not led to greater disadvantage for people who are terminally ill' - yet if this is the case, why is she not instead advocating further development of palliative care?
'The figure of at least 80% of the population supporting assisted dying has been generally accepted. For me, it is a continuing matter of shame that our fellow countrymen and women still have to go to Switzerland to avail themselves of what should be possible in this country.'
Assisted suicide in Switzerland is more common in the divorced and those living alone, and 25% of those assisted had no fatal illness, instead citing "weariness of life" - is this really what the Viscount wants for Britain? We do not share his shame.
The Viscount was not alone in using statistics - Baroness Meacher:
'Support from the population at large is also solid. Some 82% of the general public agree that a doctor should probably or definitely be allowed to end the life of a patient with a painful, incurable disease at the patient's request. The population is in fact far more radical than the noble and learned Lord, Lord Falconer.'
Lord Warner earlier said that 'long-standing opponents of change... are on the wrong side of history... and... risk ending up like the opponents of... the abolition of hanging' - yet polling in recent years shows a majority favour of the reintroduction of capital punishment. How far will Craigavon, Meacher and Warner go to be in agreement with a 'radical... population'? Or will they accept that Parliament's role is often to make decisions to protect society, even when polling doesn't agree?
'The current law is not working... hundreds are illicitly given overdoses without any safeguards in place and countless people are helped to die by family members behind closed doors.'
Neither the Baroness nor any 'assisted dying' advocate has yet given any indication as to how this could possibly be prevented within an alternative legal context.
'We now have groups of disabled people, health professionals and Christians calling for change—groups that, in the past, were portrayed as opposed to assisted dying.'
Lord Warner failed to acknowledge that these have all been set up under the auspices of Dignity in Dying - formerly the Voluntary Euthanasia Society - unlike mainstream disability rights organisations, healthcare professionals bodies and faith group who oppose such legal change.
'I am also concerned about how the guidance deals with the issues of mental capacity and decision-making. The guidelines say that to avoid prosecution, it must be established not only that the motives for assistance are compassionate but that the person who dies, referred to as the victim, must have made a settled and informed decision to do so. But obviously, as these are prosecuting guidelines, the investigation of the circumstances of death occurs only after the fact—after a person is dead.'
Why, then, is Baroness Jay not perturbed by foreign laws which find no fault when doctors who are predisposed to perform euthanasia or assist a suicide disregard the opinions of their colleagues who have found that a patient does not have sufficient capacity or who does not meet the 'strict criteria'? Why also does she want to bring Oregon's law to the UK when it also very often leaves the only witness to an assisted suicide dead?
'...euthanasia advocates want... a fundamental shift in the law, a shift that would move us away from deterrence and protection. I am increasingly concerned that we may be drifting into a position of seeing suicide in terms of a happy release from suffering and regarding assisted suicide as invariably altruistic.'
'We should talk instead about increasing the availability of palliative care and improving the treatment of depression, which would help us all to live our declining years and end of life with dignity, love and care.'
Baroness Campbell of Surbiton (CB):
'The DPP's guidelines are to be celebrated as an essential tool in providing protection to society's most vulnerable people. I trust that they will continue to enjoy the support of the Government and this House.'