Coroners and Justice Bill

It is not a crime to travel abroad to be assisted in dying in a country where assisted dying is lawful. Nobody proposes to change that position, either by amendment or suggestion, in this Bill. However, it is thought to be a crime to accompany your loved one to such a country abroad for assisted dying, and the maximum sentence for such a crime is currently 14 years. I say "thought to be" because, although the Court of Appeal in the recent case of Purdy proceeded on the basis that it was a crime, and the counsel representing the Director of Public Prosecutions and that representing Mrs Purdy accepted that it was a crime, in an appeal to the Judicial Committee of this House a point has been raised by the Law Lords to the effect that it might not be a crime. That matter is currently being debated before the Judicial Committee of this House. We have to proceed on the basis that it is a crime, because that is the latest ruling of the higher courts. We know that in the past seven years, 115 people from this country have gone to Switzerland for an assisted suicide. Some of them have been investigated by the police, while some of those cases have been considered by the Director of Public Prosecutions. In none of the cases has a prosecution been brought under Section 2 of the Suicide Act 1961, despite the fact that the Director of Public Prosecutions has made it clear that he has considered in a number of cases that the evidential requirements of the Act have been satisfied. Nobody wishes to prosecute in those cases, because nobody, in my view correctly, has the stomach to prosecute in cases of compassionate assistance. The attitude of the police and prosecution authorities means that they have, for entirely understandable reasons, created a legal no man’s land. The consequence is that there is no clarity. The lack of clarity has a number of bad effects. The first bad effect is that some people do not allow their loved one to accompany them to a country where assisted dying is lawful, because they fear that after their death, their loved one may be investigated and prosecuted. With respect to them, I mention Mr and Mrs Syd Robbins, who had been married for 34 years. Mrs Dorothy Robbins had motor neurone disease; she travelled to Switzerland for an assisted dying and went alone, refusing to allow her husband, Mr Syd Robbins, to accompany her for fear that he would be prosecuted. There is no suggestion that that case was anything other than one of compassionate assistance. The problem that Mr and Mrs Robbins faced is the same problem that Mrs Purdy has faced, which is why she has brought proceedings, so far unsuccessfully, up to and including the Court of Appeal, to seek some indication that her partner, if he accompanies her to Switzerland for an assisted dying, will not be prosecuted. There is, in my respectful submission, something wrong with a law that is never enforced, but has the effect of depriving people of the compassionate assistance that I believe every single Member of this House, including those who have written letters to the newspapers about this, would think these people were entitled to. The problem goes further than that. The second problem is that the current law offers no safeguard for those who go for an assisted dying mistakenly believing that they are more ill than they are. Looking at five of the cases where people have gone to Switzerland, it has transpired that people in great distress and in great pain had in fact been suffering from such conditions as bad back pain or diabetes and had no underlying terminal condition. Because the law provides no safeguards whatever at the moment, no doctor had ever looked at those cases in the United Kingdom and the consequence was that those people went without any consideration of their medical condition. The third problem in the law as currently enforced is that there may be cases of abuse—what the noble and learned Lord, Lord Mackay of Clashfern, and those who wrote to the Times referred to as "malicious encouragement to suicide". That is something we would all wish to stop. Currently, the only safeguard in that respect is the fear of prosecution. My amendment would not remove the fear of prosecution in those cases. Instead, it would add further safeguards. I say "my amendment", but the proposal that we make in our amendment is as follows. It should not be a crime if you accompany someone to a country where assisted dying is lawful if the sole purpose of your accompanying them is to assist them in going to the place where assisted dying is lawful. Two medical practitioners must have certified that the person you are accompanying is suffering from a terminal illness and those same two medical practitioners must have certified that the person going has the capacity to make a declaration to the effect that the medical certificates have been read by them or to them and that they freely wish to go for an assisted suicide. A number of points have been made about these safeguards. In an incredibly well written article in the Daily Telegraph this morning, the noble Lord, Lord McColl, said that doctors do not want to have anything to do with it. No doctor would be forced to have anything whatever to do with this if they did not want to. However, if a defence is to be made that can be relied on, it would require that two doctors independent of each other had certified that someone was terminally ill. That is two doctors more than look at the matter currently. The second point that has been made in relation to the safeguards proposed is that our amendment contains no definition of terminal illness. I am prepared to leave it to the good sense of two doctors as to whether or not someone is terminally ill. I am more than happy to listen very closely to the views of this House about whether that is the right approach. By terminally ill, I mean something along the lines of the definition contained in the 2006 Palliative Care Bill of the noble Baroness, Lady Finlay, which states that, ""terminal illness" means an illness, disease or condition which—""(a) is inevitably progressive and fatal, and""(b) the progress of which cannot be reversed by treatment"." The third point is how you deal with the passage of time after the granting of the declaration by the person. I thought very carefully about that before the drafting of the amendment. It is implicit in my amendment and that is why I did not think it was necessary to say that the safeguards—namely, the certificate of the two doctors and the declaration by the person travelling abroad for an assisted suicide—apply to the act of going abroad and having an assisted dying. Otherwise, there would of course be no point whatever in the safeguards. I believe that to be implicit, and that the courts would unquestionably construe the amendment in that way. The fourth objection to the safeguards is there being no definition of capacity. Remember—one of my safeguards is that the person making the declaration must have the capacity to do so. My reason for not including a definition of capacity is that, as many noble Lords will remember, comparatively recently Parliament passed the Mental Capacity Act, which would without much doubt apply here. For the avoidance of doubt, I draw your Lordships’ attention to the fact that Section 62 of the Mental Capacity Act says that the reference to capacity in the Act does not apply to murder, manslaughter or Section 2 of the Suicide Act 1961. Again, I considered that before tabling the amendment and took the view that it was obvious, as a matter of drafting, that that section would not apply to the amendment. I would very much welcome noble Lords’ views on that. The reason that I proposed this amendment, along with my noble friend Lady Jay of Paddington and the noble Lords, Lord Low and Lord Lester of Herne Hill, is that it is absolutely plain that the law is being marginalised. The law is not being applied by the Director of Public Prosecutions because it plainly no longer fits the current situation. The result of the law not being applied is that we have the horror of people going earlier to clinics abroad, without their loved ones being there on the day that they die. Equally, the law provides no protection or safeguard against abusive people, or for those under a mistaken impression of what illness they have. The only current safeguard is the fear of prosecution. That is not removed because the declaration must be made freely. What are the objections to my amendment? First, it is said that this is a slippery slope; it is the beginning of a change. However, it is the law that people can go to Switzerland; that is the existing position. Is it fair and right to allow greater abuse than would be allowed if my amendment were passed by this House and the other place, and at the same time to have a situation where people go abroad to die without their loved ones? It is not a slippery slope. The amendment deals with the immediate position. Secondly, there are spiritual objections to my amendment. I do not seek to deal with these. They must be made, but in the context of the existing position. The third objection to my amendment is the idea that, before you make a change such as this, there should be a full-blown consultation. Of course, if we were making a change about assisted dying in this country, there should be a consultation. The difficulty is that the law has already been overtaken by events. It is, I believe, absolutely necessary for the law to reflect a situation that did not exist in 1961. I very much welcome the debate that will now take place on the amendment. I have set out—I hope with clarity—my reasons for proposing the amendment. It is a very important debate and I greatly welcome the contributions that will be made. I beg to move.