HL Deb 04 July 2003 vol 650 cc1218-28

3.36 p.m.

Report received.

Baroness Knight of Collingtree moved Amendment No. 1: After Clause I, insert the following new clause—

"EXCEPTIONS TO SECTION 1

(1) No offence will have been committed under section 1(1) if any of the requirements in subsections (2) and (3) below are met.

(2) The patient—

  1. (a) requests the withdrawing or withholding of sustenance;
  2. (b) does not give consent to the provision of sustenance; or
  3. (c) does not give consent to the recommended intervention to provide sustenance.

(3) In the case of a patient who lacks capacity to consent, consultation by the doctor in charge with the next of kin or legally appointed representative has taken place, and the provision of sustenance—

  1. (a) is likely to cause significant discomfort to the patient without improvement in his condition, or worsen his illness or debility; or
  2. (b) is likely to result in no improvement in the illness or debility of a dying patient.

(4) For the purposes of subsection (3) a patient lacks capacity if he is unable to understand in broad terms the nature and effect of the decision to withdraw or withhold sustenance."

The noble Baroness said: My Lords, the amendment addresses a number of concerns raised during previous debates on the Bill. First, it makes clear that a patient who does not wish to be fed by a tube through his nose or a peg in his stomach need not be so fed. He has the right of refusal, although one assumes that he will always have been informed of the consequence. No patient should ever be given medical treatment to which he objects. That was never in doubt in my introduction of the Bill but, for those concerned that doctors might be forced to feed in that way, the amendment clarifies the matter. Secondly, if a patient is incapable of giving any view—if he is unconscious, in a coma or cannot understand the issue—the amendment lays down the procedure that must be followed.

The matters have been discussed at considerable length earlier in our debates, so I have no wish to go into every detail once again at this hour on a Friday. I would wish to spare the House that. However, if any noble Lords wish to ask further questions, I shall do my very best to answer them.

I am most grateful to all noble Lords who have contributed to our debates on the Bill, especially to the noble Baroness, Lady Finlay. It was said in previous speeches by other noble Lords that there was not a great deal of difference between us, especially on the imperative need always to give patients the best medical care and show concern for their comfort and well-being at every stage. I am sure that it is right to say that the noble Baroness, Lady Finlay, and I have never had any disagreements on that point. Those comments have been proved right. I am both happy and proud that she and I have worked together on the amendment and have signed it jointly. I beg to move.

Baroness Andrews

My Lords, I shall try to be as brief as the noble Baroness. Clearly, we have debated aspects of the amendment in different ways as we have debated the Bill. It seeks to avoid an offence being committed if a decision to withhold or withdraw sustenance were taken on the basis of the patient′s own request or their refusal to consent to the necessary processes and interventions in providing sustenance. The implication in subsection (2) is that the patient concerned has the capacity to request or withhold consent to the withholding or withdrawal of sustenance, although that is not made explicit.

Subsection (3) deals with patients lacking the capacity to consent. It appears to provide that where the doctor in charge has consulted with the patient′s next of kin or legally appointed representative and the provision of sustenance is unlikely to result in any benefit or improvement for the patient, whether dying or not, it may be withheld or withdrawn. As I said during our many hours of debate on the different stages of the Bill, the Government believe that those principles are important ones to maintain in considering any change in the law. We support the general legal and ethical principle that valid consent must be obtained before starting any treatment or intervention or providing personal care for a patient. That reflects the right of patients to determine what happens to their own bodies and is a fundamental part of good practice. Where patients lack the capacity to consent, the key principle governing their care and treatment is that of a person′s best interests. Those best interests are not confined, as we discussed, to best medical interests but will take into account a person′s psychological health, well being and quality of life.

I draw the noble Baroness′s attention to the definition of "capacity" as set out in subsection (4), which somewhat fails to do justice to all the requirements as commonly understood by the term. For a person to have capacity he or she must be able to comprehend and retain information that is material to the decision, especially as to the consequences of having or not having the intervention in question, and must be able to use and weigh that information in the decision-making process. That suggests a detailed understanding of and the ability to interpret the material facts and not just an understanding in broad terms. The amendment also does not specify who should determine whether the patient has the capacity to make those decisions.

Baroness Finlay of Llandaff

My Lords, I am most grateful to the Minister for having outlined the very important issue of competence that runs behind the amendment.

I want to clarify a couple of issues about the wording. First, a patient is assumed to be competent unless they are proved not to be competent; hence the amendment. Subsection (2) refers to "the patient" and subsection (3) to, a patient who lacks capacity". The other important point about capacity is that the capacity to refuse in a valid manner must be assessed in relation to the proposed intervention. The greater the import of the decision, the greater the capacity required to make it. Hence there is no fixed test for capacity; it depends on weighing up the specifics of the situation.

As the noble Baroness said and as has already been laid down by the courts, "capacity" refers to the fact that the adult patient must be able to understand and retain the information relevant to the decision, believe the information and weigh it in the balance to arrive at a choice. That choice must include understanding the consequences of not receiving a proposed treatment or intervention—in this case, of not receiving sustenance. The choice must also be voluntary and free from pressure. The whole decision-making process must be free from discrimination and it must respect privacy, confidentiality, the liberty of the individual and their dignity, and it must take into account views that the person may have expressed when he was deemed competent prior to being deemed incompetent. There are guidelines for good practice and the amendment seeks to ensure that good practice is built on by ensuring that there is consultation with relatives and/ or carers, as outlined, by next of kin or legally appointed representatives.

Patients are routinely asked on entry to hospital about next of kin. However, if the patient were not competent to state that, the people who would need to be considered are the patient′s partner, family, carer or, in Scotland, the tutor-dative, or a person with parental responsibility; the legally appointed representative currently applies only in Scotland—that status, so far as I understand it, is not valid in English law.

I seek the guidance of the House because shortly before I came into the Chamber it was drawn to my attention that one word was missing from the end of the first line of subsection (2)(a); there should be an "or" at the end of that line. It should read: The patient … requests the withdrawing or withholding of sustenance; or … does not give consent to the provision of sustenance; or". I checked that against the draft that was submitted, and I apologise to the House for not spotting the typographical error in omitting the word "or". I am uncertain whether the word "or" can be carried over to the previous line and believe that that needs to be clarified.

3.45 p.m.

Lord Joffe

My Lords, before I express some concerns about the amendment, perhaps I may seek clarification from the noble Baroness, Lady Knight, on a single word. Is the word "dying", which appears before the word "patient" at the end of proposed new subsection (3), intended to include patients in a persistent vegetative state, such as Anthony Bland? If the answer is that it does include such patients, I would considerably shorten my speech.

Baroness Knight of Collingtree

My Lords, I understand from those whose business it is to give medical care—it is not my business—that the words as tabled in the amendment are absolutely clear to the medical profession. So far as concerns that profession, the concept of a "dying patient" carries with it no lack of clarity. But I am certain that the right person to answer this question may well be the noble Baroness, Lady Finlay.

Baroness Finlay of Llandaff

My Lords, perhaps I may speak briefly to clarify the matter. The Bill relates to sustenance. For a patient in a persistent vegetative state there may be other measures which it would be more appropriate to withhold or withdraw prior to considering the withdrawal or withholding of sustenance. To date, the courts have been involved in cases of PVS, and it would seem inappropriate to try to include that in a Bill which is confined to the issue of sustenance.

Lord Joffe

My Lords, perhaps I may then turn to a point which is extremely serious. On my understanding of the case, the courts have dealt specifically with the question of withholding sustenance and they touched upon it in very clear terms in the Bland case. In that case, the noble and learned Lord, Lord Hoffmann, stated on page 832 of his judgment that, the medical evidence"— it is clear that he was referring to the Bland case— is that suitable sedation can prevent any untoward symptoms and that withdrawal of nourishment is the most gentle and controlled way in which to allow him to die". Therefore, the issue was clearly faced up to in that case. If the amendment before the House seeks to change that position, then it runs counter to the decision of the House of Lords appeal court, the Court of Appeal and the presiding judge. Therefore, I believe that we are dealing with a very clinical point in relation to the amendment.

Baroness Knight of Collingtree

My Lords, with great respect, the noble Lord is not correct in his assumption. The Bland judgment did not say—I repeat, "not"; in fact, it was specific about people′s wishes—that henceforward it would be permissible to withhold food and liquid from a patient who was ill in hospital. It was made quite clear that the Bland case was a very special, very particular and, indeed, very bad case—as in "bad cases make bad laws", as, indeed, they do.

The point also covered very clearly—particularly by the noble and learned Lord, Lord Mustill—was that henceforward the Bland case should not be used as an excuse to deny a patient food and liquid.

Baroness Farrington of Ribbleton

My Lords, I must remind noble Lords that on Report the mover of the amendment is the last person to speak and that other Peers may speak only once.

Lord Joffe

My Lords, I asked whether I could first ask the noble Baroness a question. Is the Minister saying that I am excluded from continuing with my speech?

Baroness Farrington of Ribbleton

My Lords, perhaps I can be helpful to the noble Lord. Any further questions put to the noble Baroness must be answered by her at the end.

Lord Joffe

My Lords, I have read the words of the Bland judgment to the House. It is clear that it talks specifically to exceptions to the rule and that in exceptional cases it is acceptable to deny patients who are suffering, provided that does not cause them unnecessary pain and suffering.

I move on to a point raised in Committee. The noble Baroness, Lady Knight, said that neither the BMA nor any doctors had raised concerns about the Bill. That is said twice in her speech. It is clear that she was not aware of the response of the chairman and the secretary of the Royal College of Physicians Committee on Ethics and Medicine. They produced a specific document in relation to the Bill, stating: As it is formulated, the Bill is extremely vague and will certainly be detrimental to humane care of patients. If it were passed, it could be a crude instrument to bludgeon doctors into behaving contrary to clinical judgement informed by a compassionate and sympathetic understanding of the needs of the patient". It is a two-page document and I will not read further, but that indicates the spirit of the approach to the Bill of the Royal College of Physicians. But in fairness, it must be said that that response was given before the amendments were tabled and perhaps in the light of them it may be different.

I find myself in the position of, broadly speaking, supporting the amendments for the curious reason that although I do not support the Bill, which I accept is moved for reasons of compassion and concern about depriving patients of sustenance without their consent but I believe is unnecessary, I consider that they make a bad Bill rather less bad.

Lord Swinfen

My Lords, I am pleased that my noble friend Lady Knight of Collingtree and the noble Baroness, Lady Finlay of Llandaff, who in Committee appeared not to be singing from the same hymn sheets, are today singing to the same tune but using different words. They were both trying to reach the same point from different directions. I am pleased that they have come together on this amendment and I support it.

I would have thought that the point raised by the noble Baroness, Lady Andrews, on subsection (4) could have been dealt with easily at Third Reading, if that provision needs improvement. As regards subsection (2)(a), the word "or" can easily be added at Third Reading as a tidying-up measure. There is no difficulty with that; that is, if it does not already come under an Act which we have for clarifying Bills and goes in automatically—I do not know, but the Clerks will be able to advise the noble Baroness.

As to the remarks of the noble Lord, Lord Joffe, on the Bland judgment, I think I am right in saying that the courts said that that judgment should not be taken as a precedent and therefore in some respect his remarks were unnecessary. But if there should be a similar case in future—we all hope that there will not, but unfortunately these things happen—it is always open to either the family or the doctors in treating that patient to ask the court for permission to stop feeding. With those few remarks, I support the amendment.

Lord Brennan

My Lords, in speaking to Amendment No. 1, the House should commend the noble Baronesses Lady Knight of Collingtree and Lady Finlay of Llandaff, on reaching agreement on the amendment to the original Clause 1. I commend the amendment because these are extremely serious matters that we are debating. They are designed to protect patients but they should not, in a desire to protect them, cause unnecessary interference with the proper exercise of medical judgment by those caring for the patients. There is a balance to be struck. The amendment before the House rationally seeks to draw that balance in a reasonable way.

I should like to raise several points for further consideration, if not today at Third Reading. The first is that in paragraph (4) of the amendment there is an attempted definition of "capacity". It is put in the negative, but it is a definition of "capacity". At present, your Lordships face consideration of this Bill, the Bill advanced by the noble Lord, Lord Joffe—the Patient (Assisted Dying) Bill—which also involves capacity, and a Bill which is about to be introduced called the Mental Incapacity Bill.

These matters require significant intellectual rigour to be applied to them. It would be most unfortunate if, in the course of debating each of these three Bills, we approach the question as to capacity with different terminology when they all affect the same area of personal capacity and we should be looking for consistency. That is my first suggestion that the noble Baroness, Lady Knight, should consider at Third Reading; that is, what those other two Bills state and the terms of paragraph (4) of the amendment.

The second point I want to make is that in putting her name to the amendment as a Member of this House, as I understand it, the noble Baroness, Lady Finlay, is also expressing her medical opinion about what is appropriate in terms of patient protection in this particular area. The comments made by professional medical organisations to which the noble Lord, Lord Joffe, referred, as he pointed out, were made before these amendments. I suspect that following the amendments the objections will not be pursued, but when we consider the position of the medical profession I invite the House to exercise that intellectual rigour I mentioned a moment ago.

It would be unfortunate if, in considering this Bill, we ask the House to take into account medical opinion if it is against the Bill and yet, when the Bill of the noble Lord, Lord Joffe, comes before the House it is said, "Don′t take into account medical opinion if it objects to the Bill; there are more important considerations". Putting it generously, that is intellectually unattractive. So we need to have a consistent view about the medical position.

My last point is about subsection (3). First, the Bland case did not create a generally applicable principle of law. A reading of the speeches in the House of Lords makes that abundantly clear. I must point out to the noble Lord, Lord Joffe, that what he read out was part of the speech in the Court of Appeal of Lord Justice Hoffmann, as he then was; it was not part of one of the speeches from the House of Lords.

I raise that point because the House was exceptionally careful to limit precisely the effect of its judgment by pointing out that in its view these matters required further and particular consideration by Parliament. This is an occasion for such consideration.

As I read subsection (3)(a), it appears to refer to a class of patient who is not dying, but on the terms used would include a patient in a persistent vegetative state. If not, I should like clarification at Third Reading as to which class of patient that is intended to refer. At the moment it appears to refer to any condition and it would not matter even if the patient was only mildly ill. It would seem extraordinary if in those circumstances a patient could say, "Don′t feed me. I intend to die even though I have only a minor condition". I am being strictly legal about this issue, but it is an important matter. In contrast, subsection (3)(b) appears to refer to the dying patient and requires no more than common sense to interpret what it means. So we need clarification with regard to those matters.

I close my remarks on the amendment by repeating what I said at the beginning: it is to be welcomed and I would commend to the House—if your Lordships can forgive the third repetition of it—on this occasion, and when we come to the other two matters that I have mentioned, the need to use throughout objective argument and intellectual rigour.

4 p.m.

Baroness Knight of Collingtree

My Lords, first, I make clear to your Lordships that I have received notification from the Table that it will be possible to deal with the important point raised by the noble Baroness, Lady Finlay, that the word "or" can be treated as a printing error. I am grateful for that advice.

There is no need for me to comment on what the noble Lord, Lord Joffe, said. In some ways I find it difficult to understand where the noble Lord is coming from, because, as your Lordships are well aware, he is very much in favour of people being allowed to be "done to death" when they wish that to happen. The Bill is not about that at all; it is about protecting people from being "done to death" when they do not wish to die. Having said those words, I shall leave the matter.

The noble Lord, Lord Brennan, made an important point on the question of capacity. That could not be considered briefly and without careful thought. I am quite sure that colleagues who support this Bill will take that on board, as we all will, and consider most carefully whether changes in the wording are needed or advisable.

With regard to medical opinion and the need for the House to have a consistent view on it, it has often struck me with astonishment that it is extremely difficult to get a consistent view from the BMA. That is natural because doctors are personalities, as are we all. Conflicting views have frequently been expressed to me on medical issues that have come before not only this House but my former place of work, the other place. One doctor will say one thing and another will give quite the reverse as his opinion. So it is sometimes difficult to discern what is the majority view of the BMA. We all have a duty to listen to experts in the fields in which we deal, carefully weigh up what is said and then make up our own minds on the matter. Any other course of action will be problematic.

On the question of what the wording of subsection (3)(a) means, again, I think it better not to detain the House at this time but to assure the noble Lord, Lord Brennan, that that will be considered. With those words, I commend the amendment to the House.

On Question, amendment agreed to.

Baroness Finlay of Llandaff moved Amendment No. 2: After Clause 1, insert the following new clause—

"DUTY OF CARE There shall be a general duty on all those providing nursing care for a patient to offer appropriate sustenance to the patient.

The noble Baroness said: My Lords, the amendment addresses the duty of care. Nursing care is riot confined to those with a nursing qualification; it consists of the care of those patients who are vulnerable and unable to provide their own nutrition because of debility. That does not mean that sustenance must be offered by registered nurses only. Indeed, in the modern NHS. the role is often fulfilled by care assistants and other non-professional carers.

Neither does it exclude other professions, such as dieticians, pharmacists and others, from an obligation to support that caring process. It is negligent on behalf of anyone entrusted to provide care to fail to discharge his duty to offer the competent—and, indeed, the incompetent—person sustenance. However, in previous debates, there was great concern that patients are at present frightened of going into hospital, and the amendment should allay those fears.

It is negligent to fail to provide such basic care to a person at home—again, the amendment restates that. It does not require someone who helps a debilitated person to shop then also to prepare the meals, but it ensures that vulnerable people will be offered sustenance if they are unable to prepare it for themselves. It does not remove the duty of best interest in decision-making for the incompetent patient. I beg to move.

Baroness Knight of Collingtree

My Lords, in giving brief support to the amendment, I point out that earlier the noble Baroness, Lady Finlay, spoke of the distress caused in hospitals when—this has been reported many times—the food that a patient needed was placed too far for him or her to reach to eat it. Then the nurse would return later and say, "Oh, you′re not hungry then, Mr Jones", and take it away. That is why many of us have received letters. Examples by the score have come to many noble Lords who are involved in the issue of health care. I hope and trust that the amendment will relieve that dreadful occurrence.

Baroness Andrews

My Lords, the noble Baroness′s amendment is similar to one that we discussed in Committee last week, but the scope has been changed. She seeks to impose on all those providing nursing care for a patient a general duty to offer appropriate sustenance to that patient.

I shall reinforce briefly some points that I have made as the Bill has been debated in your Lordships′ House. I cannot restate strongly enough that poor and neglectful care of patients should not happen. Failing to provide nutrition and/or hydration that is appropriate to a patient′s clinical condition and nutritional needs is contrary to established acceptable practice, and, if amounting to gross neglect, would be a criminal offence.

The amendment seems to restate established good practice but is now selectively addressed to those providing nursing care. It is not addressed to all healthcare professionals, including doctors, who would be involved in initiating invasive methods of nutrition and hydration, and pharmacists and dieticians, who would be involved in providing and monitoring intravenous and intra-gastric nutrition. The clause could, however, encompass lay carers and thus impose new and possibly onerous duties on those close to a patient who may be nursing a relative at home.

The Bill already provides a definition of "sustenance": the provision of nutrition and hydration, however so delivered". However, it does not define what is appropriate. That is difficult enough for professional carers to decide but will often be impossible for lay carers. It is unclear what that means for a nursing or lay carer who may not be qualified to initiate, or possibly to administer, the more invasive methods of providing sustenance.

The word "offer" is not defined here or in the rest of the Bill, but the use of the word suggests that the amendment is about patients who are in a position to refuse. Where a person is not in a position to consent to treatment, or to refuse an offer, the normal rules apply and those caring for them must act in the person′s best interests. If, as the end of life is reached, it is not appropriate to offer increasingly invasive methods of delivering sustenance, those caring for the patient do not have to make the offer.

I conclude by restating an observation that I think I made at Second Reading—it now seems a very long time ago. The discussions that noble Lords have had over many hours have reinforced how difficult it is satisfactorily and comprehensively to encapsulate subtle healthcare concepts, which require compassion and discretion in delivery in robust, unambiguous and defensible legal English. I recognise the noble Baroness′s concerns in introducing the Bill. However, it would be worth while if we all reflected on whether there is a need for legislation in such a sensitive area. One could argue that the area is more amenable to the detail and subtlety that professional guidance and good practice can deliver, and where safeguards against transgression already exist in law.

The Bill has allowed many related issues to be aired in this House. It has been very valuable in that sense. However, at times, there has been a muddling of the Bill′s intentions with general concerns about the quality of care available to elderly patients and patents who are dying under NHS care.

The Government believe profoundly in the fundamental principles underlying the inception and continuation of the NHS as it provides for elderly people—high quality care available to all who need it and free at the point of delivery. We have invested a great deal in that commitment. As we conclude this stage of the Bill, it is important to bear in mind the importance that we attach to the quality of care for elderly people, no matter what their circumstances.

Lord Joffe

My Lords, I support the intention of the amendment, but, like the Minister, I am concerned about the wording. Perhaps I may take the opportunity to explain to the noble Baroness, Lady Knight, that I do not seek to ensure that patients get "done in". I seek to assist patients who wish to die to do so with dignity. I refer the noble Baroness to the judgment of the noble and learned Lord, Lord Hoffmann, from which I quoted and in which he dealt at some length with the use of emotive language in discussions of such seriousness.

4.15 p.m.

Lord Brennan

My Lords, I rise briefly to raise a point advanced by my noble friend the Minister, which is to stress how careful we must be in dealing with matters of this sensitivity. That is not a reason why the House should decline to deal with matters of public interest, because in the House of Lords case of Bland, all the Law Lords said that it was a matter for Parliament, and at least one, the noble and learned Lord, Lord Mustill, said that the matter was of such importance for Parliament that it could not properly be left to the exercise of judgment by the medical profession. That was not an expression of a lack of confidence in that profession, but an expression of the belief that matters of this gravity must be determined by the legislature and not individual professions alone.

It would be unfortunate if our senior court recommends this House to consider these matters and we finish up referring it back to the very medical profession that brought the Bland case to the House of Lords in the first place. That would be a long circular journey since Bland.

Baroness Finlay of Llandaff

My Lords, I am most grateful to all noble Lords who have spoken. I am particularly grateful to the Minister for clarifying potential complications that may arise in the wording of the amendment. When I spoke previously, I had hoped to clarify that nursing was to be used in the broadest sense, not simply a narrow sense. It therefore leaves me with somewhat of a dilemma in terms of the wording of this amendment. However, I feel at this stage, given the possibility of tidying up the wording at Third Reading, I will press this amendment now.

On Question, amendment agreed to.

House adjourned at seventeen minutes past four o′clock.