§ 7.45 p.m.
§ Lord Lester of Herne Hill asked Her Majesty's Government whether they are satisfied with the current state of the criminal law and medical practice in relation to the palliative treatment by doctors and nurses of terminally ill patients.
§ The noble Lord said: My Lords, because of my experience as counsel in a recent case I am concerned about the lack of clarity as to the criminal law and good medical practice in the palliative treatment of the terminally ill. This is despite the admirable work done 721 four years ago by the Select Committee on Medical Ethics, chaired by the noble Lord, Lord Walton of Detchant.
§ Annie Lindsell is a remarkably courageous victim of the terrible motor neurone disease from which she has suffered for over five years. I am very sorry that she is too ill to be here this evening, as she had so much hoped.
§ MND is a degenerative neurological condition with no known cause or cure. It kills the nerves controlling movement so that sufferers, while retaining total brain function and being able to feel pain, find themselves gradually trapped inside a completely paralysed body.
§ Annie Lindsell has come to know and admire many other MND sufferers. Of those who have died, the last months of their lives have been too terrible for them to bear and for others to witness. She wishes, as is her right, to remain at home until she dies, cared for by her loving friends and companions, under the careful supervision of her doctor, her consultant and the district nurse. Along with many other MND patients she does not wish for invasive surgery, such as the insertion of a PEG tube that will only prolong a life the quality of which continues to deteriorate; nor does she want to have to live on in a doped haze.
§ When the quality of her life becomes unacceptable to her, as she begins to be unable to swallow and is at imminent risk of suffering severe distress, involving choking, she wants to be confident that her doctor will be able lawfully to treat her with palliative drugs to relieve her severe distress, even though the probable consequence will be to shorten her life. She wishes to know that, if the doctor agrees, she will be treated with drugs at that stage, so that she can die with dignity, fully aware of her circumstances.
§ The MND patients she has known were denied such treatment, despite some of them being under hospice supervision. Helplessly, they suffered appalling and unnecessary distress in the last months of what remained of their lives. Their wishes were known. They did not wish to endure the indignity of remaining helpless, unable to do anything for themselves, unable to eat normal food, at risk of choking, and in a drug-induced condition to make them less aware of their terrible condition. The only way they were able to avoid that inhuman fate was by refusing to have a PEG tube inserted. That meant that they began choking on their own mucus when unable to swallow, often while trying to eat. Their doctors terminated their distress only at a very late stage, after they had repeatedly begged to be allowed to die with dignity.
§ Annie Lindsell was terrified of having to endure a similar fate. She brought legal proceedings seeking the necessary assurance and peace of mind for herself and her doctor. Without the necessary reassurance that it was lawful, her doctor would not commit himself to treat her in accordance with what he and she consider will be in her best interests at the point when she becomes unable to swallow, and risks choking.
§ The uncertainty arose because of the early stage at which the treatment is intended to be given, and its probable effect in shortening Annie's life. Indeed, 722 initially, a hospice consultant gave evidence that he considered the proposed course of treatment to amount to euthanasia. But he later changed his mind, and all the doctors, the lawyers and the learned judge agreed that what was proposed was lawful. The doctor decided he could safely give appropriate treatment when Annie begins to be unable to swallow. And the case was withdrawn.
§ Reasonable legal certainty is especially important where a patient is suffering from a terminal illness and facing the prospect of experiencing severe suffering and indignity. Patients have the right to life. They also have the right to personal autonomy and to live and die with dignity. They and their doctors need to know what exception there is to the law of homicide enabling a doctor, acting in accordance with his patient's wishes, and the doctor's judgment as to the appropriate medical treatment, to administer that treatment, even though its probable effect will be to shorten the patient's life. Unless the criminal law and good medical practice are reasonably clear, conscientious doctors, seeking to act in the best interests of their patients, are left in a state of uncertainty and anxiety. They may be hesitant or unwilling to give appropriate treatment in accordance with their patients' wishes.
§ A person who kills, with that as his intention, is guilty of murder, even though he may have been motivated by a desire to end another's suffering or to give effect to the other person's clearly and honestly-held wishes. In deciding whether there is the mental element necessary for murder, foresight of the consequences is evidence of the existence of a criminal intent. The greater the probability of death as a consequence, the more likely it is that it was foreseen, and the greater the probability that it was also intended.
§ There is no culpable homicide where there was legal justification or excuse. The problem is to know the nature and extent of the legal justification or excuse for what would otherwise be homicide in relation to the medical treatment of the terminally ill.
§ Where a doctor acts in accordance with what he considers to be responsible medical practice, with the aim of relieving pain or severe distress but with the probable consequence of shortening the patient's life, the risk to the doctor is that the jury, as directed by the judge on currently declared principles, will impute the necessary specific intent to find him guilty of culpable homicide, and the judge will have to impose a mandatory sentence of life imprisonment.
§ The ancient theological doctrine of double effect, brought into English law by Mr. Justice Devlin in his summing up to the jury in the Bodkin Adams case, attempts to cover administering drugs necessary for the relief of a patient's pain or severe distress in the knowledge that a probable consequence is a shortening of the patient's life.
§ The Select Committee observed that, if the doctor's intention is the relief of severe pain or distress, and the treatment given is appropriate to that end, the double effect should be no obstacle. They considered that juries can readily assess whether there was any reason to suspect that the doctor's real intention was to kill the patient rather than to relieve pain and suffering.723
But there are several problems. First, where the probable consequence is to shorten life the law will usually infer a criminal intent. Reference to double effect and primary intent do not explain the nature or scope of the exception of lawful justification or excuse. Secondly, the concept of what is meant by "severe distress" can be interpreted generously by some doctors (as in Annie's case) or narrowly (as in her friends' case). Thirdly, as the noble Baroness, Lady Warnock, observed during the debate on the Select Committee's report, the argument that the doctor's intention is to relieve pain and that the subsequent death is a side-effect sounds to many like a prevarication. The noble Baroness said:
If you know, or are reasonably certain, that an undesirable consequence will follow from what you intend to do, then in normal circumstances you are held responsible both for what you do and for the undesirable consequences. So, for example, if you know that your cat will almost certainly die if you spread weed killer on his favourite haunts, then you can hardly be absolved from responsibility for his death by claiming that all you intended was to kill the dandelions".—[Official Report, 9/5/94; col. 1376.]
§ I agree with the noble Baroness, Lady Warnock, that it would be better to recognise that the doctor is prepared to take a risk that the patient will die; that is, to admit that the doctor is making a value judgment. In her words:
"judging that the relief of pain in the particular case is of more important value than the preservation of life. In other words, he is judging that the quality of the patient's life of pain is so low as to justify the probability of its coming swiftly to an end".—[Col. 1377.]
§ The doctor must surely have a defence to a prima facie case of murder based on foresight of consequences where the patient's life is an intolerable burden to her, the patient is dying, and the only humane treatment left is one which has death as its consequence. There is surely a defence if the doctor satisfies the jury of three matters: first, the fact that he administered the treatment in good faith for the purpose of relieving his patient's pain, suffering and severe distress; secondly, the fact that the treatment was given with the patient's informed consent; and, thirdly, the fact that the treatment administered accorded with accepted medical practice. That was the gist of Annie's case.
§ This approach avoids any artificial distortion of the well-established legal concepts of intention and causation. It has the crucial advantage of providing much greater certainty than would an approach based on the vague and confusing standard of "primary" and "secondary" intentions. I hope that the Minister's reply will confirm that he accepts that that is a correct approach and, if not, why it is mistaken.
§ The present legal uncertainty is compounded by the absence of any published guidance as to the policy of the prosecuting authorities. It is surely not sufficient guidance to the medical profession dealing with terminally ill patients merely to say: "Do what you consider to be medically and ethically correct, even though what you do is likely to shorten life, and take the risk of criminal prosecution on the basis of the concept of 'double effect' or 'primary intent"'.724
§ It is also unsatisfactory that there is no adequate guidance to doctors from the BMA, even though it is crucial to a doctor's defence to a charge of homicide that he acted in accordance with a responsible body of medical practice. I hope that the Minister will be able to tell the House that the Government will encourage giving guidance both about prosecution policy and good medical practice.
The humane approach is surely that of the President of the Family Division, Sir Stephen Brown, in his judgment yesterday in baby C's tragic case. The President observed that,
whilst the sanctity of life is vitally important, it is not the paramount consideration
—in such a case. He gave leave to treat baby C, as advised by her doctor, including,
palliative care to ease her suffering, and permit her life to end peacefully and with dignity".
§ The same compassionate approach should surely also apply to the treatment of terminally ill adult patients of sound mind.
§ 7.56 p.m.
§ Lord McColl of Dulwich
My Lords, I am grateful to the noble Lord, Lord Lester, for introducing the debate. The essence of his argument is that there is a lack of clarity over the management of people who are dying. There is no lack of clarity, however, among the thousands of palliative care doctors and nurses. I have been in practice for 40 years and have never come across lack of clarity. I am very much associated with a hospice in the East End for those dying of Aids and have never come across any lack of clarity there.
There are many aspects in the distress of a dying patient—physical, mental, spiritual; all great anxieties—but they can all be dealt with in different ways. If a drug is required, we can try to establish the appropriate medication to relieve the specific symptoms. Sometimes it takes a few days to adjust the dose of the drug. But when the correct dose is achieved, it usually remains at the same level; it is rarely necessary to go on increasing it. Once a patient is free of pain, he or she often lives longer than they would have done if they had not had an analgesic. Pain itself is a killer. On the other hand, occasionally the doses required are so great that it is possible that the patient's life would be shortened by a small amount in order to achieve their comfort—the so-called "double effect".
The noble Lord, Lord Lester, sought the ruling of the court and the treatment available to Annie Lindsell. When the case came before the court, we were told that her doctor was seeking the permission of the court to administer drugs to relieve her mental and physical distress during the final stages of the disease. Why go to the High Court to ask permission for a procedure which is carried out numerous times every day in hospices throughout the land? Why not consult a specialist in palliative or motor neurone disease or, better still, both? Indeed, when the case ended, permission was granted for the doctor to administer 10mg of diamorphine every 12 hours. That is less than the doses which are regularly legally given by doctors throughout the land caring for their patients.
725 Then came the most puzzling part of the case. The noble Lord, Lord Lester of Herne Hill, proudly told the media, "We won what we wanted." Far from winning what they wanted, I suggest that it was a failed attempt to legalise euthanasia in this country through case law. Annie Lindsell was seeking a judicial review legalising medically supervised voluntary euthanasia. I suggest that at the start of the proceedings the court was actually asked to permit such large doses of analgesics that they could only have resulted in the death of Miss Lindsell, thereby her becoming the first legal case of euthanasia in the United Kingdom. However, the court and its advisers saw through that. It rather looks as if those in favour of euthanasia are deliberately seeking to change our statute law by causing confusion and public anxiety and by discrediting the current legal framework; and they hope to do it through the courts. The general secretary of the Voluntary Euthanasia Society stated a short while ago that he felt Parliament would not have the courage to change the law and that change would have to come through the courts. That is exactly what happened in Holland. Those who advocate a change in the law would like to see something along Dutch lines. That is why they find our current law unacceptable. They want to keep intentional killing illegal in statute but allow it to be permitted in certain circumstances for those who want it.
§ The Duke of Norfolk
My Lords, perhaps I may say that the custom of the House is that if a noble Lord stands up to intervene, like the noble Lord, Lord Lester has just done, he should be allowed to speak.
§ Lord Williams of Mostyn
My Lords, I take that point. However, in fairness to the noble Lord, Lord McColl, he has only four minutes.
§ Lord Lester of Herne Hill
My Lords, such are the customs of the House that if I wish to ask a short question, it will not count against the noble Lord's four minutes. The noble Lord has, I think, impugned the integrity of those involved in the case. Is the noble Lord aware that at the conclusion of the case, when a costs order was sought against the doctor and the patient on the basis that the case should never have been brought, the president was so satisfied that it was properly founded that he did not even hear argument on the matter but rejected it? Was the noble Lord aware of that when he made those statements just now?
§ Lord McColl of Dulwich
No, my Lords, I was not aware of it. But I still think that there was no need at all to bring the case. And that is the view of a large number of people.
If one lesson has emerged from the Dutch experiment in recent years, it is that 1,022 patients were given euthanasia in one year without their specific permission. That is what will happen here. To change the law to allow intentional killing—to permit euthanasia, doctor-assisted suicide, mercy killing, or whatever it is called—can only result in the irretrievable breakdown of the relationship between the doctor and the patient. The law needs no change here.
§ 8.2 p.m.
The Lord Bishop of Southwell
My Lords, I am grateful to the noble Lord, Lord Lester of Herne Hill, for bringing this subject before your Lordships' House. It is one that needs to be revisited from time to time if only to remind us of the sanctity of life, given to us by God himself, and as such a gift to be revered and cherished. Furthermore, it provides the opportunity to reaffirm the position of the House of Bishops of the Church of England and the Roman Catholic Bishops' Conference of England and Wales, who in their joint submission to the Select Committee of your Lordships' House on Medical Ethics just four years ago stated:Both Churches are resolutely opposed to the legalisation of euthanasia even though it may be put forward as a means of relieving suffering, shortening the anguish of families or friends, or saving scarce resources".That stance is unchanged.
The Churches went on to say, however, that there is a proper distinction to be made between deliberate killing and the shortening of life through the administration of painkilling drugs. Neither of the Churches holds that a dying or seriously ill person should be kept alive by all possible means for as long as possible. There is a correct and fundamental distinction between that which is intended and that which is foreseen and not intended. This is not just a matter of semantics. Doctors have long recognised that the use of drugs in certain cases to relieve pain in terminally ill people has hastened death and the important consideration has always been the intention behind the administration of drugs. The primary intention is the relief of pain and suffering; the secondary consequence is an earlier death. If there were drugs available which relieved pain but did not hasten death, then those would, of course, be used in preference.
This principle, clarified by the Select Committee of your Lordships' House, was reiterated by Sir Stephen Brown, President of the Family Division, at the end of October in the distressing case of Miss Lindsell, suffering from motor neurone disease, to which the noble Lord, Lord Lester, referred. Although that was hailed as a victory for patients all over the country, it is surely clear that Sir Stephen's judgment was simply a restatement of the law as it already exists.
I submit that the current state of the criminal law and medical practice hold properly balanced a subject of deep medical and ethical significance. Those who become vulnerable through illness or disability deserve special care and protection, and adherence to this overriding principle provides a fundamental test as to what constitutes a civilised society and inevitably conflicts with those who believe in the right of individuals to exercise absolute personal autonomy.
I urge Her Majesty's Government to ensure that the necessary resources are available to all those who offer palliative care and also to the valued hospice movement which has enabled so many to die with dignity and brought real comfort to their families. As one Canadian report succinctly concluded:We owe it to the dying to support and care for them as they pass through the valley of the shadow of death, and not to kill them".
§ 8.6 p.m.
§ Baroness Pitkeathley
My Lords, I want to begin my maiden speech with my most sincere thanks to noble Lords on all sides of the House for their kind welcome and their warm offers of help to me. However, I also want to take this opportunity to thank the House for its help and support over a number of years, and not just since I have been a Member of it. I refer to my relationship with the House in my role as chief executive of the Carers National Association. I have sat many hours below the Bar or in the Gallery or in committee rooms listening to debates and questions relating to carers' issues. I am very grateful for the understanding and support which the House has always shown to caring issues, and especially for the cross-party nature of that support. As I stand here this evening, I remember, above all, the wonderful contribution made to this issue by the noble Baroness, Nancy Seear, so much missed, I am sure, by your Lordships, by me personally, and by the carers movement in general, for her wisdom and her commitment to the carers' cause.
Given the tradition of the House that maiden speeches should be uncontroversial, your Lordships will not be surprised to know that I do not intend to address some of the more difficult issues that we are debating tonight. But neither will your Lordships be surprised to know that I want to make my remarks on carers and remind your Lordships that for every terminally ill person there is very likely to be a family member who is involved, who is concerned with and about the legal and medical decisions which are under consideration. These families, too, have needs which go beyond their need for support in the distressing circumstances in which they find themselves. They need communication and they need involvement.
The issue of communicating with relatives is, I know, a difficult one, surrounded as it is with issues of confidentiality and loyalty to the patient who is terminally ill. However, too many relatives complain of lack of information—information given too late or given in a form which is incomprehensible. This is particularly the case where the patient is being cared for in an institution which is not especially sensitive to the needs of the terminally ill. The hospice movement, which started in this country and is so admired throughout the world, has a proud record of taking a holistic view of the family when someone is dying, but we should remember that 50 per cent. of deaths take place in hospitals which may not be specialists in palliative care.
I am not necessarily suggesting that information is deliberately withheld—often such decisions are made from the very best of motives—but the result is that the carers often feel bewildered by medical processes and confused by their surroundings. This bewilderment and confusion may be conveyed to their dying relative and can be avoided by a few minutes of a doctor's or nurse's time taken to offer simple explanations and acknowledgement of the family's concerns. "I'd been married to him for 35 years", said one carer, "and nursed him for the last six, but I just didn't feel involved in his dying at all. All the doctors and nurses somehow took over and made me feel like a spectator".
728 Families do not want to be spectators. They want guidance about how open they can be with their relative and they want guidance about the opportunities they should have to help patients talk through their own fears. Too often families feel that they have to be cheerful and pretend to be brave and strong and thus have no opportunity to share their sadness. People fear that death will be violent and traumatic since most of us have no experience of what death is like. As one widower said:I didn't want the medical jargon—I just wanted to know how long she had and, most of all, would she be in pain and would I be able to cope".We should not ignore the real fears which relatives have about how they themselves will cope with bereavement. Those fears are not confined to the emotional aspects of bereavement; the practicalities are important too, but what we must take most account of are the feelings between the terminally ill and their relatives.
Caring arises from a relationship. If you were not already in a relationship with someone, you would never become their carer. We all know that family relationships are very varied in their quality and their history. I would never suggest that they are all sweetness and light, but they are certainly often characterised by love and strong concepts of duty.
I beg your Lordships not to believe those who tell you that families do not care any more. Almost 7 million people in this country willingly take on the difficult task of caring for a relative and the way in which the end of that relationship is managed during a terminal illness is of vital importance. Surveys have shown that one of the major concerns of dying people is not the legal and medical issues—problematic though they are—but the overwhelming feelings of guilt they feel about being a burden to their caring relatives.
In conclusion, I am asking for involvement of relatives; not necessarily involvement in the very difficult decisions with which the debate is concerned but involvement in the sense that their feelings, their anxieties and their ability to contribute to a peaceful end of their relationships are borne in mind. If this is done, they can be seen as a resource for the hard-pressed professionals, not as a nuisance or as another problem to be dealt with. Above all, they can be a resource for the dying patient, enabling them to die peacefully and in the knowledge that these family relationships—which are, after all, the source of most caring in our society—are acknowledged and valued.
§ 8.11 p.m.
§ Baroness Warnock
My Lords, I begin by congratulating the noble Baroness, Lady Pitkeathley, on, as one would expect, a most well informed maiden speech. I congratulate her also on her compassion and excellent delivery. I am sure that I speak for all noble Lords when I say that we hope to hear much more from her in the future.
In four minutes, I shall have to put my argument quickly but, speaking as a philosopher, one of the essential points here is to distinguish things that differ. The noble Lord, Lord Lester of Herne Hill, is not raising any general questions about euthanasia; nor about 729 changing the law. He is simply seeking to clarify the specific way in which doctors and nurses may lawfully treat certain patients who are terminally ill and whose life in any case is certain to be short and is likely also to end in acute distress. I emphasise that word "distress" and the word "misery" because we are not speaking only about pain.
I emphasise the specific nature of the discussion because it is terribly easy to get carried away into suggestions that any possibly life-shortening procedure will start a descent down a slippery slope at the bottom of which lies the pit of putting to death those we think are not worth keeping alive. However, the slippery slope does not threaten us if what we are talking about is clarifying the right of the terminally ill to die peacefully.
My argument is that value judgments are involved here, on the part of the doctor, the patient and those who are caring for the patient. My hope is that the law should be so clarified that it will not seem to contradict or nullify such value judgments. The judgment involved is simply that to alleviate the patient's suffering is more important than to allow his life to continue for a few more days or weeks, whatever his suffering may be. What is at issue is not when, but how, the patient dies.
Part of the patient's suffering may well be the dread that he feels of dying by choking or by suffocation. As I know from personal and recent experience, a patient may be horrified by the thought of a particular manner of death even though he is stoical and realistic about the inevitability of death sooner rather than later. For such a patient, the reassurance from his doctor that that horrible death does not await him—that he, the doctor, will not allow it to happen—is an enormous relief and he can settle as calmly and as peacefully as his situation allows to face the short future.
It is important to recognise that the part of compassion here is to promise that the most horrible suffering will not occur. This entails that the doctor must claim to know both what the progress of the disease will bring if no extra steps are taken and that he is able to take such steps as will prevent what it is that the patient fears. I now believe that we ought to have it made clear for us that medical guidelines and prosecution policy will allow that such knowledge may be avowed by the doctor, and acted upon. I do not wish to see prolonged the use of the argument from double effect, but I do not have the time now to go into the details of that argument; nor do I want to go into the yet more shifty argument that the doctor does not actually know what will happen.
The point that I want to make crystal clear is that even if the doctor knows that the alleviating treatment will shorten the patient's life, if he judges that the alleviation of suffering is more important, he will not be liable to prosecution.
Finally, if that point can be clarified, I believe it to be of the utmost importance that the training of doctors should be a training in such compassion and that they should be taught that relieving suffering and fear are as important a part of their professional duty as prolonging life in the extreme situation of terminal illness. This would not be a licence for wholesale euthanasia; it 730 would be to provide the possibility of the explicit judgment that peace and the absence of fear may be of more value than a day, a week or a month of mental and physical torture.
§ 8.17 p.m.
§ Lord Swinfen
My Lords, I am neither a lawyer nor a doctor. In this matter I am a complete layman. However, as I understand the law, there does not appear to be any need for a change. I understand that a doctor may give whatever medication he genuinely believes is needed to relieve a patient's pain or suffering, even to the extent of sedation to keep the patient asleep. Provided that treatment of the patient is the doctor's intention and that it is in the patient's best interest, even if that treatment may shorten life, it is legally right and proper for the treatment to be given. When my time comes, I hope that no one will strive officiously to keep me alive, but will endeavour to reduce any pain that there might be at the time.
We all suffer pain from time to time, sometimes for long periods, and we recognise that pain is very tiring and that that fatigue of itself may well shorten life. The relief of pain in many cases will, I expect, give the patient a slightly longer and more comfortable life. Certainly, there will be a more dignified death.
I understand that although advances in pain relief have been dramatic in recent years, hospices have been accused of being able to help only 95 per cent. of patients suffering from pain. According to Dr. Robert Twycross, Macmillan Clinical Reader in Palliative Medicine at the University of Oxford, that is an inaccurate statement. Speaking in July this year he stated:The bottom line is making the unbearable bearable, and this is readily achievable with skill, imagination and determination in approximately 95 per cent. of cases. In the remainder, approximately 5 per cent., it is much harder to achieve this goal, but that does not mean that the patient 'cannot be helped' or is not to be helped. In extreme situations, patients will receive sedation to keep them asleep, around the clock if necessary, in order to ease the intolerable physical and/or mental distress. No one need die in agony. It is not necessary to legalise mercy killing/euthanasia to make this claim [a] reality".I have a feeling that those in favour of euthanasia tend to muddy the waters, and wish to muddy the waters, in order to obtain a change in the law. I hope that the Government will resist that and not make any change.
§ 8.20 p.m.
§ Lord Stallard
My Lords, I too am grateful to the noble Lord, Lord Lester, for initiating this debate. I have relied very heavily on the report of the Committee on Medical Ethics of 1994. I am not an expert or a lawyer. I must rely on the expertise of the House, and there is none better. The noble Lord who initiated the debate seems to be unclear about the position. Lawyers do not appear to understand what ordinary laymen like myself have understood since the production of that report. Certainly, doctors are well aware of the findings of that report and what happens in practice.
I have visited hospitals and seen the practical outcome of the recommendations of that report of 1994. I have spoken to doctors and Macmillan nurses who work in 731 hospitals. There is no lack of knowledge or understanding in the profession; nor is there any lack of knowledge in the hospice movement. Without doubt this country has the finest hospice movement in the world. In all of these cases I should like to see the Government provide greater support to spread this knowledge which is available to most people but apparently not to those in the legal profession where it is most necessary.
I agree with the point that has just been made by the noble Lord, Lord Swinfen. I do not know whether it is deliberate or whether it is part of a campaign, but there appears to be reliance on High Court cases to try to change the law, not through Parliament but through case law as has happened in the Netherlands. The results have been disastrous, not only for the law but for patients, their families and everyone concerned. I hope that we shall resist the temptation to go down that road.
I read this case from start to finish. The noble Lord who initiated the debate said that "we had won everything that we wanted". Those were his exact words. I did not understand it. What they had won was already there. The law is quite clear, and that court case proves it. The case collapsed because the Official Solicitor, the judge and everybody said that there was no need for a court ruling. They understood it. I do not know why the legal representatives of that poor, sad patient, for whom they had the greatest sympathy, did not understand it. Nor did the doctor understand it, if he is quoted correctly. Those of us who are interested in these matters understand it but we do not know why others cannot understand it. I hope that no positive move is made in the direction of building up case law to try to change the law on euthanasia rather than pursuing the parliamentary process. I hope that I am wrong but I have my suspicions that that is the case.
If there is lack of knowledge in this area I ask the Government to ensure that information is made available to everyone. That may well be done by improving the facilities available to the hospice movement, increasing the funding of GP services and the training of GPs to make them better informed than certainly one of them appears to be and improving the understanding of some in the legal profession. Have the Government any views on how those people can be made aware of what is already known to most others about help that can be given to many in dire circumstances at the moment? Patients, relatives and others who do not understand the position are being misled by others who should understand it. The Select Committee thoroughly examined all of these issues. I hope that the Government will reaffirm their confidence in the recommendations of that report and do what they can to publicise the results.
§ 8.25 p.m.
§ Baroness Elles
My Lords, the House is indeed grateful to the noble Lord for giving it the opportunity to discuss this most crucial of issues—that of life and death—and to hear the views of the Government as they are now set out.
732 As I understand it, the current state of the criminal law is contained in the judgment of Lord Devlin in the Adams case in 1957:A doctor consents to do all that is proper and necessary to relieve pain"—I stress the next words—even if the measures might incidentally shorten life by hours or perhaps longer".Forty years later—about three weeks ago—Dr. David Oliver, medical director of a hospice, emphasised in a letter to The Times of 11th November concerning the court case involving Annie Lindsell—whose name, very understandably, has been raised by most speakers—that it was standard practice in hospices and specialist palliative services and should be made available to any person with advanced motor neurone disease, cancer or other terminal illness to use carefully adjusted doses of morphine, diamorphine or other medicines to relieve pain, breathlessness or other symptoms. He pointed out that the average duration of the use of morphine at home for patients with motor neurone disease was 240 days, about two thirds of a year. The average duration of the use of diamorphine by injection was two days. One recognises the difference.
The conclusion of the Select Committee on Medical Ethics published in 1994 was that,there should be no change in the law to permit euthanasia, nor the creation of a new offence of mercy killing".Many noble Lords have already concurred with that conclusion.
However, the need for a new judicial forum to handle cases concerning medical treatment of incompetent patients is to be supported. I do not believe that other noble Lords have touched on this matter but it is a big subject. I believe that the point should be made in this debate. It was clear from the evidence received that there was a need for the removal of the mandatory life sentence for murder, particularly in those rare cases where, say, a relation had felt compelled to assist a patient to die other than a natural death. For instance, that relative could receive a suspended sentence. I believe that special care must be given to those cases. One cannot just write it off and say that the law is satisfactory. The law may be satisfactory but one must recognise that there are elements on the fringes of this debate which must be considered and dealt with.
The medical treatment of terminally ill patients has undergone fundamental change in recent years, even since 1994. First, it is no longer left solely to a doctor but includes the healthcare team and the patient who can consider the suitable and available options. That is very important. Secondly, the increase in methods of palliative treatment in the past 25 years, including advances in the application of medical technology in the past few years, has shown that as at 1994 under 1 per cent. of cases had not received relief from pain in the course of dying. A great tribute is due to Dame Cicely Saunders, a continuing provider of care, interest and concern. The many improvements in palliative care are due so much to her initiative.
733 Proposals in the report, continued research, extension of the opportunity for palliative care from hospices to other hospitals throughout the land, and the possibility for doctors and healthcare staff to continue medical treatment needed for the relief of pain—all are proposals which have been encouraged and supported. I hope that the Government will be able to say some words in response. In conclusion, the task of the doctor is to cure and to care. That principle must remain paramount.
§ 8.30 p.m.
§ Lord Alderdice
My Lords, I would like to express, as many others have done, my thanks to my noble friend Lord Lester of Herne Hill, for introducing this debate. In doing so he is reflecting a debate which is going on in the community at large. Some years ago, in an eminent book on medical ethics, a chapter was introduced with the comment that we are now in an age of anxiety so far as ethics are concerned. When it came to re-publication of the book some years later it was described not as an age of anxiety but as an age of ethical crisis. Whether one entirely subscribes to that or not, there can be little doubt that there has been a change in the situation.
I recall as a junior doctor finding myself on a number of occasions having to deal with these kinds of matters. After struggling with them and, often in collaboration with the patient, coming to a conclusion as to how we should act, I felt that I was doing the right thing. In most cases I believe that together we probably did do the right thing. In listening to the challenging and very distinguished maiden speech of the noble Baroness, Lady Pitkeathley, it seems to me that she has pointed out that there has been something of a change in development. For now, families, carers and the rest of the circle want to be involved in these matters, and there has been a development in the technology of the treatment such that we can extend life in a way in which it simply was not possible in the past.
It seems to me that in this context it is not sufficient to depend on legal and professional approaches of a previous generation. When I find many noble Lords saying that thus it has been and thus it should continue to be, it seems to me that what is being expressed is a deep sense of anxiety about the difficulties with which we must now necessarily struggle because of these new situations where patients and their relatives are no longer prepared merely to leave it in the hands of lawyers and the law or indeed in the hands of doctors and their art. They want to be involved and they want to struggle with the questions. I see this debate as part of our struggle as a society to deal with these new elements and developments, not elements to leave our principles behind but rather an opportunity to apply our fundamental principles in a new, changing and developing situation.
As we struggle to look at these things, it is not wise for us to polarise the debate into extreme positions, but rather to realise that it is rarely the more extreme positions that provide the difficulty. They are often the clearest. It is the more complex cases which often provide the greatest struggle and the greatest difficulty and problem in reaching a conclusion.
734 It seems to me that this uncertainty in dealing with things is also leading to a problem in the community. While the family circle and patients want to be involved in the whole matter, they are complex issues and we all find them so. For example, some are finding the question of the involvement of medication such as morphine confusing. Realising the possibility of double effect, some are now beginning to request that morphine not be used, even though it may get rid of pain, as there is a fear about some of its other effects. It seems to me that this is an expression of people wanting to struggle with the difficulties but fearful because the knowledge is not entirely there and we have not found our way through to dealing with the complexity of these issues.
I do not wish to go on at length because many other and much more distinguished noble Lords have contributions to make much above what I have to say. It seems important to me that as we struggle to deal with these things we should not allow ourselves, in the anxiety of the problems with which we have to deal, to depend on the answers we gave in previous times when the profession of medicine simply stood on its dignity and was able to say, "I am doing a great thing and I should not have to explain myself to anyone else who knows less." The medical profession is struggling with these issues, working with patients and working with the family circle. Medical training now involves a greater degree of training and exploration of medical ethics in collaboration with philosophers, theologians and others in our medical schools. This is good because it is struggling with the difficult questions, but it does not mean that an answer is easily forthcoming. It places on all of us a bounden moral duty to continue to struggle with the increasingly difficult questions.
§ 8.35 p.m.
§ Lord Hayhoe
My Lords, as many speeches have shown, this debate overlaps the debate on the Select Committee on Medical Ethics held on 9th May 1994. Just as the debate and the whole surrounds of that committee were subject to misinterpretation and misreporting in some areas, so I fear this debate may suffer in the same way. I was glad that the noble Baroness, Lady Warnock, made the point that she made at the beginning of her contribution.
I wish to say a word about palliative care because that is referred to in the Question. The best definition I have seen of that was given by the National Council for Hospice and Specialist Palliative Care Services to the Select Committee which said,Palliative care:—affirms life and regards dying as a normal process;—neither hastens nor postpones death;—provides relief from pain and other distressing symptoms;—integrates the psychological and spiritual aspects of patient care;—offers a support system to help patients live as actively as possible until death;—offers a support system to help the family cope during the patient's illness and in their own bereavement".I reaffirm those wise words and I hope that nothing is said, either in or about this debate, to detract from them. 735 I am sorry that the sensible and responsible conclusions of that Select Committee, particularly its clear conclusion,that there should be no change in the law to permit euthanasiaare not more widely accepted throughout the country. But, alas, the euthanasia lobby rolls on and I would not be at all surprised if our debate today is muddled or misrepresented by supporters of euthanasia.
Another wise conclusion of the Select Committee on Medical Ethics was:We strongly recommend the development and growth of palliative care services in hospices, in hospitals and in the community".Let me declare an interest as a rather inactive president of Help the Hospices and immediately offer the warmest possible tribute to the Duchess of Norfolk who, by her efforts and example, has helped the hospice movement in our country become such a notable national achievement. We really do lead the world in this area. Perhaps my noble friend the Duke of Norfolk would tell his wife with what affection and admiration she is held by all of us who know of or have benefited from her work with Help the Hospices. Of course, none of us must ever forget the pioneering work of Dame Cicely Saunders, a truly wonderful lady, and all those who are participating in hospice work.
Euthanasia is the enemy of the hospice movement, as recent experience in Holland, referred to by my noble friend on the Front Bench, shows only too well. I am resolutely opposed to any change in the law to facilitate euthanasia. I would like to see a growing partnership, better training and closer co-operation between the voluntary hospice movement and the NHS, for in the long term that relationship will lead to steady improvements in palliative care, and as that improves so the demands for euthanasia will, I believe, reduce.
I hope that the noble Lord who introduced this Question tonight will endorse what the noble Baroness, Lady Warnock, said about this not being in any way a debate about euthanasia. It is on a fairly narrow legal point that he seemed to be raising these issues and I hope that it does not lead to any misunderstanding or muddle outside this House. Perhaps in his reply he could make that clear.
§ Lord Lester of Herne Hill
My Lords, before the noble Lord sits down, and although I have no final word, perhaps I may say that I agree with every word that the noble Baroness, Lady Warnock, said, and have nothing to add.
§ 8.40 p.m.
§ Lord Alton of Liverpool
My Lords, notwithstanding that intervention by the noble Lord, Lord Lester of Herne Hill, the fact remains, as the noble Lord, Lord Hayhoe, has told us, that there will of course be some confusion outside this House about the issues which are before us, not least because many will recall that hard cases make bad laws. Notwithstanding what the noble Lord, Lord Alderdice, said, there are some 736 undying principles, one of which is the sanctity of human life. Those principles are timeless. They do not need to be reviewed from generation to generation.
I was struck that in the previous Session your Lordships under the chairmanship of the noble Lord, Lord Walton of Detchant, produced such an excellent report on euthanasia. After 20 oral hearings and over 60 written submissions, unanimous agreement was reached. I am disappointed that there is such an orchestrated and calculated attempt to resurrect the issue and to try to legalise the killing of the infirm.
The noble Lord, Lord Lester, instigated today's debate, because he claims that the law in relation to the palliative treatment by doctors and nurses of the terminally ill is unsatisfactory. He of course acted as amicus curiae (an impartial friend of the court) in the tragic case of Tony Bland. That Liverpool supporter, desperately injured at Hillsborough in 1989 was, as noble Lords will recall, starved to death. The noble Lord argued:the artificial prolongation of corporeal existencemay degrade and demean humanity. He stated that life was only valuable as a vehicle for consciousness. That defines humanity and equates life with the ability to think. Insensibility becomes a fate worse than death itself and even becomes a disqualification for life.
In the Bland judgment in 1992 the noble Lord won the day, despite a number of Law Lords expressing serious reservations about the case. The noble and learned Lord, Lord Mustill, stated:the withdrawal of nutrition and hydration was designed to bring about death. That was why it was done".The noble and learned Lord continued:It was decided that it was time he died".For the first time then the courts crossed the line and legally sanctioned the intentional killing of a patient; that is, euthanasia. The extension of the noble Lord's argument, logical enough if one accepts the basic premise, came in a recent edition of the Lancet. A leading physician, Sir Raymond Hoffenberg, suggested that patients in a persistent vegetative state should be given lethal injections and their organs taken for transplants.
So now we have it. If someone becomes insensible we can avoid the costs and inconvenience of hospices, about which the noble Lord, Lord Stallard, and others have talked, and rather than waste one's mortal remains by starving one to death, one will be used instead as a rich source of organs. The flaws in the argument revolve around questions of consent, the commissioning of doctors and nurses as killers, and the fundamental question of what constitutes life itself.
When Tony Bland was injured at Hillsborough, three people who were then my constituents were killed. One was a child. Another, Andrew Devine, like Tony Bland, went into a deep coma. In the Guardian newspaper of 26th March this year it was reported that after eight years Andrew Devine had become aware of his surroundings and was communicating with his family. The Guardian reported also on another case, of a man who had been thought to be in a state of PVS for some 737 seven years. Last March, Andrew Devine's family was able to talk publicly about the improvements that had taken place in his life. Imagine the appalling pressures which would have been placed on his family if the present presumptions in the law were overturned. There is a clear line between killing and letting die. The present law recognises that. "Care" and "kill" cannot be used as synonyms.
Last month, the noble Lord, Lord Lester, no longer an impartial adviser to the court, but now retained by the Voluntary Euthanasia Society, went to the court. He tried, as we have heard, to obtain permission for the doctor of Annie Lindsell, who suffers from motor neurone disease, to administer drugs which would relieve her mental and physical distress during the final stages of the disease. The case collapsed because it was agreed that under the principle of double effect no court ruling was needed.
Collapsed court cases which uphold the existing law do not come cheap. In an appeal letter, the Voluntary Euthanasia Society says that the case could cost some £50,000. Out of the jaws of defeat, as the noble Lord, Lord McColl, said in a speech with which I agree entirely, the noble Lord said:We won what we wanted".What is it that the VES wants?
Dr. Michael Irwin, chairman of the VES, was pictured in the summer holding a customised exit bag, and claimed to have helped 50 people die. He told the Daily Telegraph:I do not believe I can be convicted".Ms. Lindsell herself says that she wants "medically supervised voluntary euthanasia".
As the BMA has trenchantly recognised, euthanasia is morally, legally and ethically unacceptable. In a civilised society it should stay that way.
§ 8.45 p.m.
§ The Duke of Norfolk
My Lords, I congratulate the noble Baroness, Lady Pitkeathley, on her maiden speech. There is a happy tradition in this House that every maiden speaker is helped. The House stays silent. The doors are closed. Then Peers say how much the speaker has contributed, and how wonderful it is to have such a speaker with us. That may be a formality, but in the noble Baroness's case that is a meaningful sentiment. I thank her very much.
I thank also the noble Lord, Lord Lester, for bringing this subject to our notice. I do not agree with almost everything he has said. He was concerned with the court case of Annie Lindsell. The court held that there was double effect. The noble Lord then apparently said that he did not believe in double effect and that it was incoherent to talk about it.
That is not the case. The noble Lord criticised the judge's decision. The case was then withdrawn. The Voluntary Euthanasia Society backed Annie Lindsell's case. What is more important it supports the Law Commission's current proposals on mental incapacity. That would make advanced refusals of treatment 738 living wills—legally binding, so making euthanasia available to all. Such a concept amounts to assisting suicide.
The proposed Bill also accepts research procedures on patients without their consent. That may well be contrary to European and international law. I must pay tribute to Dame Cicely Saunders, as the noble Lord, Lord Hayhoe, has done. She has done such wonders in this field. She chairs St. Christopher's Hospice. She is a qualified doctor and qualified in many other medical ways. We should all realise that she is the queen of the modern hospice movement.
Dame Cicely Saunders says so simply that the hospice movement helps people to live until they die. That is a simple but wonderful sentiment. I am well acquainted, through my wife's charity—Help the Hospices, for which she raises over £1 million a year—with the fact that hospices assist the terminally ill to die through palliative care without pain. We have an amazing 270 hospices in the country now. We have become, as has been said, the envy of the world with that movement. People flock to England to study us to learn how we do it.
As a Catholic Christian I believe that doctors should continue to follow the ethics of the Hippocratic Oath, to help patients medically and, where possible, to preserve their life. Life is sacred. To change our present laws to allow voluntary or, worse still, involuntary euthanasia, would be a step down a slippery slope which could lead to the killing of the unwanted. That is a horrid thought.
I believe that if we allowed euthanasia to be legal we would be going in the same direction as Holland. The decision in Holland is leading to disastrous situations. I do not want to be dramatic, but if you do not treat life as sacred it leads to doing what Hitler did in the war. I have been to Belsen and Buchenwald and I believe that it is vital to stop sliding down that slope. Do not let us ever bring euthanasia into our laws.
§ 8.51 p.m.
§ Lord Walton of Detchant
My Lords, I, too, congratulate the noble Baroness, Lady Pitkeathley, on her maiden speech. I assure her that in the deliberations of the Select Committee, which I had the privilege of chairing, we were very conscious of the need to introduce the concept of the healthcare team, including not only doctors and nurses but also the carers and family members who are all concerned with the management of the patient. In our unanimous decision, we had no doubt whatever that we did not wish to see the legalisation of voluntary or non-voluntary euthanasia to be defined as the deliberate killing of a patient either at the patient's request or, in the incompetent individual, non-voluntary euthanasia for other reasons. We were strengthened in that resolve by what we observed during our visit to Holland.
While we rejected legalised euthanasia we were wholly supportive of double effect. Admittedly, that concept has been criticised by certain philosophers, but we took the view that the professional judgment of the healthcare team could be exercised to enable increasing doses of medication—whether analgesics, sedatives or 739 both—to be given in order to provide relief, even if that had the secondary consequence of shortening life. The essential question was that of distinguishing between motive and intention. If the motive is to relieve pain, distress and suffering with no intention to kill we believe that practice to be wholly acceptable both in medical practice and under the current common law.
I believe that the case which the noble Lord, Lord Lester, discussed tonight and in which he was involved did no more than to strengthen the acceptance of that concept in common law which arose as a result of Lord Devlin's judgment in the Bodkin Adams case many years ago. Like many others who have spoken tonight, I commend the work of the hospice movement, of the palliative care movement. It is not delivered only in hospices as buildings; it is a philosophy of medical care and management which extends widely throughout the country and out into the community.
I do not wish to elaborate on those points because the time is short. However, I disagree with the noble Duke on the issue of advance directives. They are not concerned at all with suicide. The advance directive will enable patients to express in advance their individual preferences and priorities in respect of treatment should they subsequently become incompetent. It is no more and no less than that. They are being increasingly accepted in common law. However, I do not wish—and the BMA agrees with me—to make them legally binding if only because developments in medical treatment may make their content no longer appropriate when the time comes to consider whether they should be relied upon in management.
I disagree with the noble Lord, Lord Alton, on the issue of the Bland case, where two notable Roman Catholic theologians writing in the Tablet said that the withdrawal of artificial nutrition and hydration in such cases was to be seen as an omission which was not an intending of death but a refusal to continue with inappropriate means of life preservation. However, that issue gave my Select Committee considerable concern. There were those who believed that the withdrawal of hydration and food was the withdrawal of a basic human right. In the end, we decided to recommend that there was no obligation to continue with treatment which added nothing to the well being of an individual as a person.
We would wish the Government to comment upon the major recommendations which we made towards the end of our report to the effect that there was a need for a newly established judicial tribunal, perhaps established along the lines of an expanded court of protection, to examine issues in cases of, for example, the persistent vegetative state.
This has been a useful debate. There is a great deal of biased, ill-informed and misguided comment in the press to suggest that doctors are practising euthanasia. All the evidence that I have been able to obtain suggests that they have been practising double effect. That has been badly distorted in the public press. I believe that euthanasia, whether voluntary or non-voluntary, is abhorrent and I should never wish to see the law of this country changed to legalise it.
§ 8.55 p.m.
§ Lord Ashbourne
My Lords, I, too, thank the noble Lord, Lord Lester of Herne Hill, for initiating the debate. I have always taken a close interest in developments within the medical field, especially those developments which have a particular bearing on people with disabilities. As some of your Lordships may know, I have a handicapped son and I am concerned about the care of people with disabilities.
Since 1967, when Dame Cecily Saunders founded the modern hospice movement, about 800 specialist palliative care homes and units have been developed in this country. We are widely viewed as the leader in advancing all aspects of care for the terminally ill. The case was well made by the noble Lord, Lord Hayhoe, and the noble Duke, the Duke of Norfolk. Indeed, many doctors and nurses from Europe, and other countries beyond, now travel to the United Kingdom to learn from our experience.
I appreciated the intervention of the right reverend Prelate the Bishop of Southwell in his balanced and authoritative speech. Furthermore, I enjoyed the admirable and well informed maiden speech of the noble Baroness, Lady Pitkeathley.
The law relating to the treatment of the terminally ill has been in the news recently. Indeed, the noble Lord, Lord Lester, who introduced this Unstarred Question, played a leading role in a recent case. I do not wish to go into the detail of that particular case, but I would like to quote from a letter published in The Times of 10th November in the aftermath of that case in the High Court. The letter, written by David Oliver, Medical Director of the Wisdom Hospice in Rochester, states:A person with a terminal illness should not fear that the only choice is between enduring a distressing death or having their life ended. With good palliative care, addressing the physical and psycho-social issues, death for people with motor neurone disease does not need to be distressing. Symptoms can be controlled by the careful manipulation of medication, without necessarily shortening life".I believe that it is the job of doctors and nurses to treat and to care and we as a society have no right whatever to call on them to kill. Our perceived inability to provide effective palliative care at the end of a patient's life is, I would say, an erroneous one, and being able to make a patient comfortable at the end of life should be the aim of a decent and caring society. It should not step beyond that and make it into an excuse for assisted suicide.
We should not now be calling into question the criminal law and medical practice in relation to palliative treatment. The law in this area is absolutely clear. We should instead concentrate on the great advances that have been made in palliative medicine and question instead the Government on their plans to help develop further this important area of medicine.
§ 8.58 p.m.
§ Lord Meston
My Lords, with the arrival of the noble Baroness, Lady Pitkeathley, once again carers have a voice in this House. We sadly lost that when we lost the late Lady Seear and Lady Faithful]. For that reason alone, the noble Baroness is very welcome.
741 I had the privilege of serving on the Select Committee on Medical Ethics, which considered a wider range of questions than that posed by my noble friend, which focuses on the interaction of the existing criminal law and on medical practice by doctors and nurses. It is emphatically not a Question about legalising euthanasia or any other form of mercy killing. Certainly I do not understand my noble friend to be arguing for a change in the law, and indeed, I was saddened to hear it suggested, in particular by the noble Lord, Lord Alton, that that was the case. I understood him to be arguing for a change in the law in so far as he did not accept the outcome of the Bland case in which, I would remind your Lordships, the judges at every level acceded to the application before the court.
Personally, I remain loyal to the conclusions of the committee so long as those conclusions are acceptable to the doctors who have to take those decisions and acceptable to others in the healthcare teams. The BMA is properly concerned about preserving the doctor-patient relationship. Doctors want to be seen as people who kill pain, not patients. My noble friend sought clarity for the medical profession and for those who insure it, who advise it and for prosecutors and coroners and patients and their families. They are all entitled to clarity in those difficult and borderline cases. I support my noble friend's call for guidance.
The noble Lord, Lord McColl, asked why it was necessary to go to court in the Lindsell case. I know as little about the facts as perhaps the noble Lord, Lord McColl, but I presume it was because the doctor and the hospice concerned felt unsure of their position and wanted the sanction of the court. It was not for any other motive.
The criminal law, inescapably, is concerned with concepts of intention and causation. The doctrine of double effect has been criticised as sophistry and dependent upon a narrow definition of intention. But it does at least allow a doctor to justify the giving of drugs to alleviate pain which he realises will or may hasten death provided that doctor has confined himself to the question: how much pain relief does this patient now require?
In the trial of Dr. Arthur, the judge directed the jury to think long and hard before concluding that what was standard medical practice was a criminal offence. But that of course begs the question of what is appropriate medical practice in a difficult and borderline case. In the vast majority of cases, doctors and carers can avoid criminal liability because of the doctrine of double effect and because in this country we have a strong and widespread hospice movement and a good system of palliative care, allowing most people to achieve a pain-free death.
My noble friend confronts the difficult minority of cases in which pain and distress are not easily avoided by palliative care; where doctors have to take greater risks and still wish not to be charged with having intended to cause an early death. I do not believe in slippery slope arguments. I understand my noble friend to be seeking a foothold on the slippery slope. The question for the Government must be whether there is 742 sufficient guidance available to doctors from professional bodies, even if that is a guidance which does not appease those who support voluntary active euthanasia or doctor-assisted suicide. We do not want a compromise such as in the Netherlands which is based only on vague guidance and an ambiguous legal framework. I regret it may only be a matter of time before there is another case involving someone like Dr. Cox, who was fortunate in avoiding a charge of murder as distinct from attempted murder and, had he been convicted of murder, would have faced a mandatory life sentence.
A partial answer may be to give status to advance directives. A partial answer may be also to give some statutory effect to the doctrine of double effect such as happens in South Australia where statute allows doctors to give life-shortening treatment to the terminally ill with the intention of relieving pain and distress provided that the patient consents; that it is administered in good faith and without negligence; and that it is administered in accordance with proper professional standards of palliative care.
§ 9.4 p.m.
§ Lord Williams of Mostyn
My Lords, I thank the noble Lord, Lord Lester, for introducing this debate and, in particular, I offer my congratulations on a notable maiden speech.
I have enormous respect for everyone who has spoken this evening and for the views expressed. The question asked by the noble Lord, Lord Lester, is quite unambiguous. It is to ask the Government:whether they are satisfied with the current state of the criminal law and medical practice in relation to the palliative treatment by doctors and nurses of terminally ill patients".I shall give the answer as directly as I can.
The Government are satisfied that the criminal law and medical practice are appropriate. We do not support the legalisation of euthanasia or mercy killing or any fancy label that may be attached to those practices. I go further with statements of principle which will necessarily be brief. They are not discourteous but my time is limited. This Government believe that matters of clinical judgment are for the professional judgment of the professional bodies and the clinicians involved and not for Government. It is foolish, and I believe it is wrong, for Government to attempt to intervene in those areas.
Questions have been asked about the stance of the Crown Prosecution Service. There is no difficulty whatever about its stance. It states:A doctor may not take steps positively to end a patient's life even where such a course of action is consented to by the patient".I do not detect any difficulty there. The CPS is well aware of the Bland case where the noble and learned Lord, Lord Goff, stated authoritatively that it is an established rule of our law that a doctor may, when caring for a patient who is, for example, dying of cancer, lawfully administer pain-killing drugs despite the fact that he knows that an incidental effect of that application will be to abbreviate the patient's life. I am not a doctor; my brother is. I should not have thought that he would 743 have the slightest difficulty in understanding either of those two plain, simple concepts. I am bound to say that I agree entirely with the thrust of what the noble Lord, Lord McColl of Dulwich, said.
I do not believe that the doctrine of double effect is at all a sophistry. It is a recognition that in those areas, at those times of great distress, we are dealing with delicate matters. They are matters of fine judgment. They are matters which call for legitimate judgment for clinicians and carers.
The ruling in the Bland case was quite plain: that artificial hydration and treatment, as the noble Lord, Lord Walton of Detchant, reminded us, could be categorised as medical treatment which could lawfully and legitimately be withdrawn if it was not in the patient's best interests to continue to treat him in that way. These are not easy answers, but they are answers that can be arrived at conscientiously by doctors and others who care for the terminally ill.
Perhaps I may, without presumption, entirely endorse the tributes paid to those who deal in hospices and elsewhere with the palliative care of the terminally ill. In fact, it is a fortunate, happy coincidence that on Tuesday of this week my noble friend Lady Jay, the Minister who has responsibility for this area, paid specific tribute to the work of hospices. I respectfully endorse her words. She said:Successful partnerships in hospital and palliative care have produced the principles and the practice of palliative care in hospitals, at home, in nursing homes and, of course, within specialist palliative care units or hospices".She said to those who work in the area:You have done this by working with other statutory and voluntary bodies across professional boundaries"—and this endorses what the noble Lord, Lord Alderdice, and the noble Baroness, Lady Pitkeathley, said in their remarks—always keeping the patient, the family and the carers as the focus. These principles are precisely those on which we wish to move forward towards our goal of high quality compassionate healthcare".The noble Lord, Lord Lester of Herne Hill, indicated that the law was difficult or obscure; it is not. A question was raised as to whether a specific court needed to be set up to deal with such issues. I do not believe that a specific designated court is required. I personally pay tribute to the President of the Family Division, Sir Stephen Brown, because he has given judgments which he must recognise are bound to be criticised by one spectrum of the argument or another. He has to maintain the delicate balance. In a case to which the noble Lord, Lord Lester, alluded, he said that no declaration was required. He made a declaration earlier this week, as the noble Lord pointed out, in the case of a very small infant.
The courts do approach these matters with scruple and with care, recognising, as I believe one must, that whatever answer a judge comes to is bound, in one 744 sense or another, to be partly wrong, as none of us is divine and, therefore, infallible. However, as a government, we believe that human life is entitled to the fullest, deepest respect. We do not believe that any doctor, upon his conscience and oath, ought to be entitled to administer treatment to any patient in his or her care with the intention of bringing about death. That is not sophistry; it is moral philosophy. Sometimes the consequences will be harsh for the dying patient and sometimes—and I say this with every care—it will be harsher for the relatives of the dying patient. But the fact that a human judgment upon a moral and professional basis brings about harsh consequences does not entitle us to divest ourselves of our responsibilities.
It is said that there is not enough guidance for clinicians. I respectfully disagree. I shall not weary your Lordships at this hour with details because many noble Lords will have the list more readily available than I. But the care of the dying is a central part of the training of doctors. The hospice movement has produced paper after paper dealing with such issues. The sort of debate that we are having this evening informs those—and I say this, again, carefully—who may wish to be informed. However, not everyone is in that happy state.
I do not believe it to be a complacent statement to say that, in the interrelationship between what is lawful—what is permitted—as prescribed by law and the question of clinical judgment, the law must respect the clinician and the clinician must respect the law: both, of course, must respect the dying. They are not easy resolutions to be brought together but they are not impossible. I believe that the examples given this evening, whatever the outcome of the judicial process, illustrate that fact.
We should also bear in mind—and I respectfully concur with what the noble Lord, Lord McColl of Dulwich, said—that doctors, carers, and nurses, in conjunction with concerned relatives, are coming to these conclusions day in and day out. Occasionally, a headline case goes to court and some of those headline cases then get into newspaper reports. I believe that we have a proper, civilised regime in this country which is as close to being fully acceptable as any of which I know.
Therefore, I return again to the question, having been more economical than I might have been by about three minutes only. The law is perfectly plain. It has been reaffirmed recently in the words of the noble and learned Lord, Lord Goff, which I venture to cite.The position, I believe, is plain to the medical profession. The law knows its duties of protecting the vulnerable and I believe—I say this with infinite respect—that the medical profession knows its duties and responsibilities also.The question of advanced declarations is in a sense a side-track here because no advanced declaration of wishes, at whatever stage it is given, is capable lawfully to suborn the clinician's true professional judgment.
§ House adjourned at fourteen minutes past nine o'clock.