HL Deb 25 June 2003 vol 650 cc361-82

7.36 p.m.

Baroness Knight of Collingtree

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Baroness Knight of Collingtree.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN of COMMITTEES (The Countess of Mar) in the Chair.]

Baroness Finlay of Llandaff

moved Amendment No. 5: After Clause 1. insert the following new clause—


(1) An offence will not have been committed under section 1 (1) if any of the requirements in subsections (2) to (6) below are met.

(2) The patient—

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

(3) The giving of sustenance—

  1. (a) is likely to cause significant discomfort to the patient, or worsen his illness or debility:
  2. (b) is likely to result in no improvement in the patient's illness or debility; or
  3. (c) is not likely to alter the patient's illness or debility.

(4) The withdrawing or withholding of sustenance is intended to relieve patient's suffering.

(5) The primary purpose of the withdrawing or withholding of sustenance is not to hasten or otherwise cause the death of the patient.

(6) The withdrawing or withholding of sustenance is. in the opinion of the senior doctor responsible for the patient's care and the patient's next of kin or best friend, in the patient's best interest.

(7) For the purposes of subsection (6) above, the responsibilities of the senior doctor may be delegated to another medical practitioner.

(8) For the purposes of subsection (6) above, a "best friend" is a person, other than the patient's next of kin, so designated by the patient."

The noble Baroness said: I beg to move Amendment No. 5. This amendment, together with my other amendment, is probing, and I do not intend to divide the Committee at this stage. However, I would like to explore the ways in which the Bill will work in practice. Amendment No. 5 is designed to ensure clarity and purpose and to avoid meddlesome interventions as defensive medicine.

In her introductory remarks on the Bill, the noble Baroness, Lady Knight of Collingtree, said: There is nothing in the Bill to force the patient to have a tube in his nose or a PEG in his stomach if he does not want that. Nothing in the Bill obstructs good medical practice. It does not make illegal withholding sustenance from a patient who is dying when placing feeding tubes would be unduly intrusive or the risk excessive. The Bill does not impose any requirement on doctors to strive to keep alive patients who are dying".—[Official Report, 12/3/03; col. 1403.]

The amendment seeks to ensure that those aims are clear. Without it, there will be difficulties for excellent clinicians, as was so clearly explained by the noble Earl, Lord Howe, in proving beyond all reasonable doubt in a court of law that their purpose was not to cause death.

Subsection (2) of my proposed new clause encapsulates the issue of consent. A patient must consent to what is done, whether that is to be examined or investigated or to be treated. When unable to consent, the principle is the decision deemed to be in the best interests of the patient. Consent is valid only if it is voluntary, informed and the patient is competent. Competence requires that the patient understands the information, can mentally process the information—being of sound mind—and understands the consequences of each option, including the consequences of doing nothing, and the patient must be able to communicate his or her decision.

Forcibly to impose sustenance against valid refusal would be battery. However, the patient might consent to sustenance, but not to the optimal route. For example, a patient could decline a PEG and nutritionally enriched drinks, but wish for other drinks or soups. These would not provide optimum nutrition and may carry a risk, yet they are the patient's informed choice.

Perhaps I may give a specific clinical example. A woman with motor neurone disease was assessed as having an unsafe swallow. Her neurologist recommended PEG feeding, which she declined, as in subsection (2)(c). Her speech was very impaired but she was able to move independently and was reasonably strong. She wanted her drip taken down as it was making her sore and she did not want it resited—as in paragraph (a). She wanted a cup of tea. She did not consent to sustenance, as in paragraph (b), as the cup of tea would not meet her nutritional needs. She and I knew the risks but this was her informed choice. She drank most of the cup of tea, by the way. Her husband agreed with her decision and she died peacefully a few days later—but without her drip being re-sited as that was her wish and remained so.

Subsection (3) covers decisions where the patient is too ill to be able to make a competent decision. If a patient has cerebral oedema. which is swelling of the brain, the patient can be made clinically dehydrated with drugs to decrease pressure inside the skull, as in paragraph (a), so sustenance is being withheld for a clinical reason. This also covers those patients with enteral feeding induced diarrhoea where all bowel loads must be withdrawn to stop the diarrhoea, even though the patient is already cachexic.

Paragraph (b) covers a patient who is dying imminently. Paragraph (c) covers those patients whose disease state is advanced but who are unlikely to die in the next 24 hours or so. However, pouring in calories is futile because at a cellular level they cannot cope with a huge nutritional load. For them, fluids and some calories are appropriate, but these will not reverse the loss of body mass. Very costly parenteral nutrition would be futile and it would be invidious to accuse the clinician of purposefully withholding nutrition.

Subsection (4) covers patients in heart failure. They will be given diuretics to draw off fluid through the kidneys to decrease fluid load. Unless the load on the heart is decreased, a patient's breathlessness will worsen, as will his or her distress.

Subsection (5) covers double effect. In this situation the primary purpose is not to cause death but electrolyte disturbance is a predictable risk. This predictable risk—though at the time thought to be the lesser of two evils—is the problem that causes death.

Subsection (6) allows decision making to occur for the patient who is unconscious or incompetent through delirium or other condition and who is dying and cannot give or withhold consent. It ensures that the decision is taken between the senior doctor and the patient's next of kin or best friend and that the decision is in the patient's best interests as a person. This means that such a decision would be unlawful if the next of kin stood to gain financially from the patient's death within a short time. It would, however, allow for the designated advocate to express what the patient would have wanted if he or she had been able to make and communicate a decision.

Subsection (7) ensures that the senior doctor or doctors to whom the patient's care has been delegated carries such responsibility. This allows for being off duty and so on. It protects the patient from another healthcare professional not involved in the chain of responsibility deeming that sustenance should cease. It makes clear the lines of answerability for clinical decision making.

Subsection (8) allows those who have no direct relative or who are very distant from them to determine their delegated representative but ensures that the delegated person cannot act alone. For example, a single lady who has fallen out with her brother, has no children or parent, may have a close friend who knows her well. This applies also to same sex relationships, where the people involved may be very loving and committed to each other; other family members may have become alienated and have no idea of the person's ideas, values and concerns. The best friend is the person the patient trusts.

I hope that I have explained the rationale behind the amendment. I beg to move.

7.45 p.m.

Lord Swinfen

I understand where the noble Baroness is coming from. She is trying to improve the Bill. I have one or two points to raise on her amendment. I am neither a lawyer nor a doctor. So if I am mistaken in the points I raise, that is the reason; I am speaking purely as a layman.

Subsection (2) refers to the patient's consent. The noble Baroness will recall that when we were previously in Committee my noble friend Baroness Knight of Collingtree withdrew Amendment No. 4 because the issue of informed consent was not referred to in her amendment. I do not see that referred to in the amendment of the noble Baroness which is before the Committee today. I believe my noble friend intended that there should be informed consent on the part of the patient.

I believe that subsections (3), (4), (5) and (6) are covered by Amendment No. 2, which the Committee will recall was agreed to the last time we met. I may be wrong about that in legal terms.

As regards subsection (7), how experienced does the senior doctor have to be? Is there a misprint in that subsection? It states: For the purposes of subsection (6) above, the responsibilities of the senior senior doctor may be delegated". Is there one "senior" too many there?

I can see where the noble Baroness is coming from but I have a feeling that the proposed new clause may need to be redrafted before we reach Report stage.

Baroness Andrews

Perhaps I may make my contribution at this stage. I shall be very brief. It has been some time since we were previously in Committee and I wish to restate the Government's position, which, as with all Private Member's Bills, is one of neutrality. Essentially, we are holding the ring.

As I understand it, the amendment seeks to make clear that no offence would be committed if a decision to withhold or withdraw sustenance was taken on the basis of the patient's own views or, where those views cannot be determined, the patient's best interests. We have stated at various stages of the Bill—certainly at Second Reading—that the Government believe it is important to maintain those principles in considering any change in the law. That is my major statement on this issue.

However, I raise one point that the noble Baroness may wish to consider. Subsection (5) of the proposed new clause states that an offence would not be committed if, The primary purpose of the withdrawing or withholding of sustenance is not to hasten or otherwise cause the death of the patient". This suggests that it is possible to distinguish between the different purposes of a doctor in taking a decision to withhold or withdraw sustenance. I suggest that in practice this will create problems because of the difficulty in establishing what is a "primary purpose" when the outcome of a decision to withhold or withdraw sustenance will always be the same.

The amendment does not resolve that dilemma, which we have discussed in relation to other amendments at previous stages of the Bill. The withholding or withdrawal of sustenance will always lead to the patient's death. Therefore, in law, a doctor taking such a decision could under the Bill be held to have intended that death. The noble Baroness may wish to give further consideration to that part of her amendment.

Baroness Knight of Collingtree

The Committee will recall that the last Committee stage of the Bill—in fact, it would be equally as accurate to call it the first Committee stage of the Bill—went on much longer than the Government wished. They needed that time for important business of their own and, when I saw the agonised expression on the face of the noble Lord, Lord Grocott, I judged it wise to bring matters speedily to an end. In doing so, however, I made it very clear that I would return to the spirit of the amendment I had been moving at the end of that Committee stage. It was an amendment which sought to ensure that no offence would be committed if the patient asked or indicated that he or she did not wish to be fed by tube or PEG.

Members of the Committee will concede that I have listened with great care to everything that has been said. I have tried my utmost to meet all valid concerns, from whatever angle they came. To that end, I shall move an amendment on Report which I believe will meet the case, but it is rather different trying to meet other objections and concerns. I believe it will be a more straightforward and easy amendment than the one before us.

I am very troubled about subsection (2) of the new clause. I fear it would lead to great pressure being put on patients. If you are old, frail and ill, you have neither the stamina nor the courage to withstand pressure, especially from important people like doctors whom you believe are about one and a half steps down from the Almighty. You are a very easy target for those who, for one reason or another, prefer your space to your existence. There are many, many cases on record of families who will gain from a relative's death putting pressure on that person: "You really are a nuisance to everybody, you really are a burden, it's time you were gone". Or they use body language. If they are caring for a sick person. they put the food down as if it has been a wretched nuisance to prepare. There are other ways of making the poor sick person think that he or she really ought to quit this world. These pressures frighten me.

The words in subsection (2)(a), (b) and (c) would be an encouragement to exert pressure and get the patient believing he was useless and a trouble to everybody. For doctors, the prize would be a bed freed—that is a goal devoutly to be wished if you have a health authority trust and a government screaming for shorter waiting lists.

What the noble Baroness, Lady Finlay, told us is very enlightening, but I suggest that she described her intentions in her speech rather than in the wording of the amendment. So much of what she said I understand and agree with, but what she said is not what the amendment proposes, and that really worries me.

I am sure the noble Baroness meant subsection (2)(b) to apply to food being given artificially, but it appears to apply to all food. I could not help asking myself whether the noble Baroness was suggesting that people should sign a form to say they want to be fed before they are fed. People understand why they have to sign a form of consent if they are to have an operation or receive some other medical treatment. But do we want to send the message that people will not be fed in hospital unless they actually ask to be fed? I doubt it. But there is no doubt that the words imply precisely that. I tremble to think of the trouble and work—as well as the incredulity—that such a rule would cause.

I have no objection to subsection (3)(a), but I do not see any need for it. Listening to the noble Baroness, I can understand much more what she intends the amendment to do. But the amendment, in raw words, does not mean quite what she says it is intended to mean. Of course it would be reasonable and right to seek to avoid pain or to worsen illness. But a doctor would simply have to record in his notes on the case that the procedure would be harmful, and state why. I am told by lawyers—indeed, the noble Lord, Lord Carlile of Berriew, was absolutely clear on this at Second Reading—that the courts would understand that the evidence, if it ever got to that stage, of having a written note showing why food and water were withheld was X, Y or Z was a very good and sound reason.

Lord Clement-Jones

It would be helpful if the noble Baroness referenced some of her points against some of the guidance that is currently available. In her criticism of the amendment, she seems effectively to be saying that the current GMC guidance should be scrapped in many areas. I should like to quote one area which is pertinent to subsection (2) rather than (3), although quite a lot of the guidance is pertinent to subsection (3).

Paragraph 13 of the guidance deals with the guiding principles on consent: Adult competent patients have the right to decide how much weight to attach to the benefits, burdens, risks, and the overall acceptability of any treatment. They have the right to refuse treatment even where refusal may result in harm to themselves or in their own death. and doctors are legally bound to respect their decision". It goes on: it is essential that doctors ensure that those involved in making the decision — about nutrition and hydration specifically— are provided with clear and up to date information about what is known of the benefits, burdens and risks of providing nutrition and hydration through artificial means". Those two points are absolutely four-square with the points that the noble Baroness, Lady Finlay, made. Much of the amendment is trying to read back into the Bill quite a lot of the safeguards that the GMC insists upon for medical practitioners. Those seem entirely reasonable. If there were time, I could take Members of the Committee through every aspect of the amendment and reference it to the GMC guidance. In that light, this seems an entirely reasonable amendment.

8 p.m.

Baroness Knight of Collingtree

I do not doubt for one moment that the GMC guidance, along with the BMA guidance, was well intentioned. I made it absolutely clear at Second Reading that I was worried that, notwithstanding all the words in both sets of guidance, patients were still being done to death—there is no doubt about that whatever—by starving them or having them die of thirst in our hospitals.

When doctors originally wrote to me after hearing that I was going to introduce this Bill and said that they had the guidance, my response was, "Then it is not working, because this is happening every single day in our hospitals". That is what made me introduce the Bill and that is what makes me proceed with it, with all might and main. I cannot bear what is going on in our hospitals. I shall come later to the fact that the BMA and all doctors had ample opportunity to respond to the allegations I made on Second Reading about patients dying in hospitals, and not a single one did so.

As I was saying, subsection (3)(b) and (c) worry me deeply. I hope there is no quarrel about food and water being essential for life. If you do not have. them, you die. But they are not medicines to make you well. To be denied food and water because that will not cure disease, which is what the amendment is saying, would be extraordinary. Often, although not always, we feel quite good after an excellent meal, but we do not eat it to make us well. If patients are only to be fed if it improves their medical condition, which is what the amendment proposes, I have serious fears for the future of those hospitalised.

Subsection (4) proposes that no offence is committed if the intention of withholding food and water is to relieve suffering. I could agree, except that I have to be convinced that one relieves suffering by imposing it and starving people to death. How can one relieve suffering by starving them to death or having them die of thirst? I just do not understand. I am not saying that it is unreasonable to ask the question in the amendment. I am only saying, if it can be done in that way, please tell me how. How can it be right to put people to that length of suffering and say that it is saving them suffering? By all accounts, a lot of suffering is caused in the deaths that I describe, and there is no shadow of a doubt that dying of thirst is a ghastly way to die. How does such dreadful torture relieve suffering? I suppose one could drug them senseless, but there would be no observable suffering then either way.

Subsection (5) refers to the purpose of withholding sustenance. Surely, that would be set down in the patient's notes, which, as I have repeatedly said, will be very important. The whole point of the notes is that doctors should record precisely why food and water is withheld. If there is a sound reason which is stated clearly and would he recognised and understood, that should be put down. NO such rules now exist. If doctors had to write their reasons, many patients would be saved much torment, because no doctor would then withhold sustenance without a good reason. Is that such an unreasonable thing to ask? If sustenance in hospitals is going to be withdrawn, there must be a clear and explained reason why.

The reasons for the exception in subsection (6) would also be set down in the notes. I hope that we can have an end to being told that doctors are too busy or have not the facilities to make proper notes. We are talking here about life and death. If people cannot make a note, or cannot be bothered to make a note, or do not have time to make a note about whether a patient is or is not being done to death in this way, then I despair—I really do.

Subsection (7) should not stand. When every patient is the responsibility of a named consultant, the situation is clear. If the consultant can, any old time he wants, go off early for any old reason and delegate his responsibility to any old doctor who happens to be passing—even a very junior one—it is making very light of a patient's life. The noble Baroness, Lady Finlay, would never do that. I know. If she were responsible for a patient, she would be there all the time. But the sad thing is that all doctors are not like the noble Baroness. That is what I am trying to counter in this Bill.

Senior doctors sometimes have to go off and do other things, because they are busy men, but they can and must always be contactable and responsible. We are not really playing a game of pass the parcel.

I was recently told that named doctors no longer take responsibility for individual patients. I rang a number of hospitals to check that, and so far I have not found one hospital where that was not the rule. The near universal response to my query was, "Of course someone takes responsibility, and that responsibility does not get farmed out or changed at will". I have tried to find as much evidence as I can of that. It may be that some hospitals that I have not contacted do that, but I do not believe that it is the general practice. For good reasons, a doctor or consultant—someone named and known—is responsible for each patient.

I have other concerns about this part of the amendment. Earlier, I stressed the dangers of allowing a relative or next of kin to say that sustenance should be withdrawn. In this part of the amendment, it is suggested that even a friend should say that. I listened to the noble Baroness very carefully, and she said that the proposal was for people who are incapable of making decisions for themselves. Forgive me, but that is not actually in the amendment, although I have no doubt that it is in the mind of the noble Baroness. The amendment could be taken to mean any patient—it does not say "incompetent".

I can envisage doctors taking a relative into a side room and saying, "Old Bill is a bit of a nuisance now, you know. He is 78 or 84 or something, and it's really time he went". Doctors might talk like that, with the patient never agreeing. I know that the noble Baroness does not want that, and I do not believe for a moment that she intended it, but that is what the amendment says. We must not forget that relatives often have reasons of financial gain to want the person dead.

On Second Reading I cited three cases of unwilling patients being deliberately starved to death in hospital. I spoke of a TV documentary that showed several more. My allegations were made here, in one of the most public places in which one could ever make an allegation, and reported all over the place to interested people. If they had been groundless, I would have expected an outcry from the BMA and letters from hospital doctors saying, "We never, ever do that. Patients who wish to live are never done to death in that manner". Not one single word have I received disputing my accounts.

I have had letters referring to the guidance, and my answer is that however good the guidance is, I am concerned with what is actually happening. The only letters that I have had have been from individual doctors saying, "Yes, you're quite right, it is going on, and it ought not to go on".

Many have seen these amendments before us as wrecking amendments, seeking to kill the Bill. However, I have listened to what the noble Baroness said, and I accept her word that that was not her intention. I find it difficult if not impossible to believe that she really wants the cruel, ghastly and indeed unlawful killings of sick people to continue. I am always ready to meet her at any time to discuss any suggestions for further amendments, which would meet her concerns and still safeguard patients. That is the one thing from which I will not move. I must pursue my aim of safeguarding people from being done to death when they do not wish it. I say that to any noble Lord who has reservations about the Bill. It is a vital matter. If we can get together on any disagreements and sort them out, and still proceed, I should be the first one through the door.

Lord Monson

My Lords, I had not intended to speak tonight but I am emboldened to do so by the experience of a relation of mine by marriage, who died 16 years ago at the age of 76. She was a wonderful woman—she was highly talented and creative, a successful author and almost as successful a watercolourist. Unfortunately, she suffered a stroke a few months before her death, which entirely deprived her of any ability to go on writing or painting. Suffering certain medical complications, she was taken to hospital, where, hating the idea of living the rest of her life as a passive observer—for her to sit watching television for 10 hours a day would be a living hell—and unable actually to do anything, she asked for sustenance to be switched off, in the full knowledge of what that entailed.

The noble Baroness, Lady Knight, said that she could not understand how the withdrawing or withholding of sustenance was intended to relieve the patient's suffering. I am afraid that it did. The undoubted physical suffering did not last very long after the withdrawing of sustenance and was far less than the suffering that she would have experienced had she continued to go on living. I support my noble friend's amendment but I suspect that the difference between the two sides is not perhaps as great as all that. I hope that a compromise can be reached.

Baroness O'Cathain

My Lords, I am moved to contribute to this debate solely by the contribution of the noble Lord. Sometimes we jump to conclusions about what people who cannot express themselves or may be very depressed feel momentarily or over a short period of time.

The noble Lord spoke movingly about his relative by marriage. My husband was in a similar situation. He suffered a massive stroke and wanted to end it all. Although he was not able to speak for almost 12 years and could not do anything other than sometimes feed himself with his left hand, he grew to have a very calm existence. Of course some of his abilities closed down: he was not able to read, write or talk. However, he had many periods of enormous happiness. He smiled a lot and he got great pleasure from seeing small children and being out in the garden.

I believe that part of the problem—we cannot put ourselves in the position of other people—was that my husband was suffering from real depression after his stroke. That was dealt with in a medical way; he was on a form of anti-depressants—I do not know the details of such things—for the rest of his life. However, it worked; it really worked. In 1989 he indicated with his left hand what he wanted, and I know that he hated me because he thought that I was keeping him alive. For many years, he got great pleasure and satisfaction and gave much pleasure and happiness to many other people. On another level—this may not be open to everyone—he came to have a deep Christian faith. He was previously what one would call a social Christian but Christianity became very much part of his existence. That in turn was a beacon to many other people. The issue is very difficult for those of us who have not suffered, and those who have suffered cannot tell us. I felt that I had to make that contribution.

8.15 p.m.

Lord Alton of Liverpool

My Lords, in Committee I said: None of us wants to see officious legislation directed at doctors or nurses which makes prosecution more probable or likely".—[Official Report, 20/5/03; col. 779.] In addition, in response to my noble friend, none of us believes that we should go to heroic lengths to keep people alive who would otherwise die. I certainly agree with him that the officious feeding of patients against their will is outwith the terms of the Bill and is a repugnance to me. as it certainly is to him. I agree with him: I do not believe that there is a great deal between what the noble Baroness, Lady Knight of Collingtree, said and what my noble friend Lady Finlay of Llandaff said when she moved the amendment.

Subsections (1), (2), (3)(a) and—despite the comments of the noble Baroness—(5) of the amendment have much to commend themselves. For reasons that I shall explain in a moment, I would be more concerned about other aspects of the amendment. However, I think that the generous offer made by the noble Baroness, Lady Knight, to continue discussing these points with my noble friend should be accepted. Indeed, my noble friend made it clear at the outset that this was a probing, exploratory amendment which was put forward without the wish to divide the Committee on the issue today. In that spirit, I think that we can move forward to Report stage and try to build consensus around this sensitive and complex question.

I turn to the amendment and begin with subsections (1) and (2). The amendment builds on Amendment No. 4 which the noble Baroness, Lady Knight, moved in Committee. During our debates, it has become apparent that the Bill does not mention the issue of patient consent or refusal, the very point to which my noble friend alluded a few minutes ago. As drafted the Bill fails to acknowledge the patient who considers the possible benefits in the provision of sustenance to be outweighed by the burdens. So this part of the amendment helps to clarify the position. The noble Baroness, Lady Knight, said earlier that she would be very happy to accept much of the spirit of that. If a patient does not consent to the provision of sustenance then no offence will be committed under the Bill if the medical staff do not provide sustenance. It is very important to get that on the record and to get people to understand what the Bill does not do. I think that there is a legitimate fear that it might require officious feeding.

At the previous Committee sitting, the noble Earl, Lord Howe, the noble Baroness, Lady Andrews, and my noble friend Lady Masham expressed concern that we need to distinguish between patients with the capacity to make a decision and those lacking that capacity. I know that my noble friend Lady Finlay does not wish to see patients who lack capacity to take decisions for themselves put at any risk. I hope that, between now and Report stage, the amendment can be strengthened to deal with considerations of mental capacity.

The position of patients who may be put under pressure, however subtle—a point to which the noble Baroness, Lady Knight, also referred—to consent to the withdrawal or withholding of sustenance also needs to be considered. Consent given under duress represents an assault. The position is as clear as that. I know that my noble friend Lady Finlay would be adamantly opposed to the exertion of such pressure on a patient. It would help the Committee if that point could be clarified and my noble friend could explain how she would intend to prevent the exploitation of vulnerable patients. I think that that also would help us to reach some sort of agreement.

I turn to subsection (3) of the amendment. Like the noble Baroness, Lady Knight, I strongly support the spirit of what is expressed in subsection (3)(a). However, I have reservations about the rest of the provision. I know that my noble friend is concerned that the Bill as drafted would promote the inappropriate and unjust use of artificially delivered nutrition and hydration. Indeed, at Second Reading she spoke at length and very compellingly about that. Doctors, she said, would be so afraid of prosecution that they might well end up practising "defensive medicine". The noble Earl, Lord Howe, referred to that in his remarks, as did the noble Lord, Lord Clement-Jones, when we discussed this earlier. I personally have said from the outset that I do not want to see good doctors being prosecuted at the behest of aggrieved relatives. I am sure that every Member of the Committee shares a dislike of vexatious litigation of any kind.

The Bill does not seek to make unlawful the withholding or withdrawal of sustenance from a patient who is in the process of dying and where the placement of feeding tubes would be regarded as unduly intrusive and inappropriate or where the risk of placing the feeding tube would be excessive. Again, it is important to set out what the Bill does not do. This is far removed from the deliberate withholding or withdrawing of sustenance with the purpose of causing the death of a patient who is not otherwise dying. The Bill would not force the provision of sustenance irrespective of predicated outcome and scientific evidence, nor would it promote the inappropriate and unjust use of TPN.

If subsection (3) helps to clarify the intention behind the Bill then I welcome it. Subsection (3)(a) offers a legitimate exception to an offence under the Bill. I hope that between now and Report stage we will be able to ensure that the wording of these amendments does not in any way dilute the protection that we are seeking to provide vulnerable patients, which is the whole point of the Bill, nor expose good doctors—my noble friend's point—to criminal prosecution.

I turn to subsection (3)(b) and (c). I do not believe that these provisions are necessary. I think that they wrongly imply—and from my noble friend's remarks, I suspect that she perhaps concedes this—that the provision of sustenance, for example, could cure strokes or other illnesses and so can be withheld or withdrawn if it is not having the desired curative effect. Rather, nutrition and hydration—as the noble Lord, Lord Carlile of Berriew, said at Second Reading—form the very basis of human life and should be given to all patients with the proviso to which I referred earlier.

I turn briefly to subsection (4). Again I think that, as drafted, the provision is too broad. I am utterly convinced of the motives of my noble friend Lady Finlay and know that she would do nothing that inflicts suffering or pain. We are very fortunate in this House to have someone who is on the sharp end of having to deal daily with these matters. Moreover, we all listen to her knowing of her own deep convictions and the way in which she deals clinically with patients. The mover would do better to entrench subsection (3)(a), to which I referred earlier, on the face of the Bill and to discard the possible ambiguous interpretation of subsection (4).

Subsection (5) of the amendment states: The primary purpose of the withdrawing or withholding of sustenance is not to hasten or otherwise cause the death of the patient". The noble Baroness, Lady Andrews, mentioned that point earlier. I believe that subsection (5) is probably superfluous but if it helps to assuage the concerns of doctors that they will be exposed to the risk of malicious prosecution, I am not opposed in principle to it being included on the face of the Bill. We can reflect on that between now and Report.

As the noble Lord, Lord Swinfen, said, subsection (6) of the amendment is problematic from a technical point of view. It would enable the senior doctor and the patient's best friend or next of kin to withhold or withdraw sustenance if they consider this to be in the patient's best interests. However, like subsection (2), it fails to distinguish between the patient who has mental capacity and the patient who lacks mental capacity. I hope that the noble Baroness will be able to clarify that point for us. Surely if a competent patient consents to the provision of sustenance, the views of any doctor, next of kin or best friend, whoever they are, should be wholly irrelevant. I appreciate the intention behind the amendment. I wonder whether the exception to an offence under the Bill that it seeks to provide can be found in subsection (3)(a). I know that the noble Baroness is sympathetic to that point.

Subsection (6) of the amendment would also appear to conflict with paragraph 17.4 of the BMA's guidance on withdrawing and withholding life-prolonging medical treatment. I remind the Committee of that guidance, which states: Except where the patient's imminent death is inevitable, a decision to withhold or withdraw all treatment is likely to be inappropriate and potentially unlawful". Assuming subsection (6) deals with incompetent patients, it needs to be clarified whether or not it covers incompetent patients where death is imminent or incompetent patients who are not dying. If it covers the latter then it must be amended. I do not believe that it would be right to allow the senior doctor and the patient's next of kin or best friend to deem that sustenance be withheld or withdrawn from a non-dying incompetent patient on the grounds that it is in their best interests. We need to reflect further on the implications of that.

Subsection (7) of the amendment refers to, the responsibilities of the senior senior doctor", for the purposes of subsection (6). That point was mentioned earlier by the noble Lord, Lord Swinfen. Obviously, that needs to he tidied up. I have expressed concern to the noble Baroness that this should not be just any doctor, and I think that she agrees. There has to be a clear chain of command. It is vital that if the responsibilities of the senior doctor are to be delegated to another medical practitioner they are delegated by the senior practitioner himself. There must be a clear chain of command. That does not exist in the amendment as it is currently drafted.

I hope that some of those points will be helpful to the Committee. Like my noble friend, I think there is a lot of common ground between the mover of the amendment and the mover of the Bill. It is a question of bringing the best interests of the patient and the best interests of the medical profession together. I hope that these two very formidable Members of your Lordships' House will be able to find a way forward between now and Report.

Lord Joffe

I support the amendment of my noble friend Lady Finlay, although I believe that some of the wording might need reconsideration. I am reassured by the intention of the noble Baroness, Lady Knight, to ensure that the Bill does not prevent competent patients from refusing sustenance. If I understood her correctly, it is her intention to introduce an amendment which she feels is preferable to the amendment before us at the moment. If that is so, it removes an important concern that I had about the original Bill.

I understand the concern of the noble Baroness, Lady Knight, about depriving competent patients of sustenance without their consent. I also think that deplorable, but I question whether there is any need for specific new legislation on it. As a non-practising ex-lawyer my understanding is, bearing in mind the duty of care on doctors, that there is no basis on which they could normally refuse to give sustenance to competent patients without their consent. I may be wrong, but I think that that is the position. In that event I cannot see the purpose of further legislation when, in my view, doctors could probably be prosecuted under existing law.

Baroness Knight of Collingtree

The problem about legal action has been that it is quite impossible to get any lawyer to take a case against the NHS. It is the biggest business and, looking at it that way, probably the best-supported and funded body in the whole of Europe. Legal representatives simply will not take cases, as I have been told on the very best authority.

Most people do not have a lot of money and, if their relative has died, they are frightened of litigation because of what it may cost. Also, their nearest and dearest has gone. What will bring them back? Money will not help. The fear of legal action put forward in earlier arguments about the Bill is not well founded in fact.

Lord Joffe

Why then does the noble Baroness think that lawyers will take the cases under her legislation?

Baroness Knight of Collingtree

We know that what is going on at the moment is going on; people are being done to death against their will. We also know that that is against our national law, and international law. We know that the existing rules, such as they are, do not stop it happening. Some kind of law is needed to protect people in that vulnerable situation.

Lord Swinfen

If the Bill becomes law and anyone draws a suspicion to the attention of the police, it will be the duty of the police to investigate. Then it would be a matter of public prosecution.

Lord Joffe

I do not want to pursue the point further other than to say that a report could be made to the police at the moment, and the police should take action. There would be a clear breach of current law. Perhaps we should leave the debate at that at this point.

In relation to the question of incompetent patients, the existing guidelines are fair, wise and compassionate. Again, I question why we should need any further laws to deal with a situation that is well under control.

I am perplexed about what would happen under the Bill. On the Anthony Bland case, if the doctors decided to withdraw sustenance and indeed were so ordered by the courts, there was no suffering involved on his part. He could not suffer any longer. Is it the intention of the noble Baroness that future Anthony Blands would continue to survive in a state where there was no suffering but no quality of life at all, and that that would carry on indefinitely?

8.30 p.m.

Baroness Knight of Collingtree

As I understand it, the courts did not order that young Mr Bland should be done away with. They listened to the case and said that in that case it would be permissible for sustenance to be withdrawn. That is different from a court ordering a person to be killed. But it was clearly said by the noble and learned Lord, Lord Must ill, that this ruling must not become a general one and adopted throughout the country for people who were ill.

The intention of my Bill—and it is clearly set out in the amendment to be debated—is that the patient who does not wish to have a tube or PEG in his stomach can say so and he will not be forced to have one. I can do no more than tell the noble Lord, Lord Joffe, what happened in the Bland case and what was feared to be a result of it. We must now keep to our laws on protecting people's lives.

Lord Joffe

I accept the correction about what the court said, but I have a simple question to ask the noble Baroness, Lady Knight. Does she believe that the recommendation in the Bland case was incorrect? Does she believe that the permission to deprive Anthony Bland of sustenance, which was given by the court, was wrong?

Baroness Knight of Collingtree

I am happy to answer that question because there has been a great difference of opinion on it. I happen to believe that there was an acceptable reason why the Bland case decision was made and carried out in that way. I can speak only for myself. However, I am anxious about what was said by the noble and learned Lord, Lord Mustill. Following the Bland case, the BMA and the doctors called feeding people "giving them medical treatment". That was where the mischief all began. You can withhold medical treatment, but most people did not realise that that related to the withholding of food and they did not want that. We cannot live without food.

I hope that I have answered the noble Lord's question properly. I have certainly answered it as honestly as I can.

Baroness Masham of Ilton

I want to say a few words in congratulating the noble Baroness, Lady Knight, on all her hard work. I feel that her heart is in the right place. I also feel that it is now the responsibility of the Government to help in getting the Bill through. Many vulnerable patients feel even more vulnerable and they need protection.

We who take an interest in health services and hospices know that they are under a great deal of pressure. Bed availability and finances in hospices are under pressure. When there is a great deal of pressure, vulnerable patients need to be protected. The noble Baroness, Lady Knight, is trying so hard to get it right and I believe that everyone should help her. There are many vulnerable people whose relatives or best friends feel they need protection.

Lord Alton of Liverpool

I do not want to detain the Committee at length. My noble friend Lord Joffe raised the point about the Tony Bland case. I was perhaps the constituency MP most involved in 1993 when I was in another place. Your Lordships will recall the terrible tragedy at Hillsborough involving Liverpool Football Club. On the same day that Tony Bland went into a deep coma and became PVS—persistent vegetative state—a young constituent of mine called Andrew Divine, had exactly the same condition. His parents took an entirely different decision and food and fluids were not withdrawn in his case.

The Guardian newspaper has documented how after five years quite extraordinary progress was made in Andrew's case. At Second Reading I received permission from his mother to tell your Lordships what had happened to him and how, against the expectations of every prognosis, there were startling improvements in his condition. He was well able to eat solids, so was no longer on fluids only, and he had been in an identical position to Tony Bland.

The noble Baroness, Lady Knight, has referred to the noble and learned Lord, Lord Mustill, who said at the time: It is a striking fact that in 20 of the 39 American states which have legislated in favour of 'living wills', the legislation specifically excludes termination of life by the withdrawal of nourishment and hydration". He also said that the Tony Bland judgment left the law, morally and intellectually misshapen". The noble and learned Lord, Lord Hoffmann, said: The giving of food to a helpless person is so much the quintessential example of kindness and humanity that it is hard to imagine a case in which it would be morally right to withhold it". I know that the noble Lord, Lord Joffe, and I have differences about a Private Member's Bill that he has introduced in your Lordships' House, but I believe that those statements that I have just read to the Committee would be deeply influential with him and that he would accept the spirit of what the noble Baroness, Lady Knight, is trying to achieve. I hope that he will find it possible to support the provisions of the Bill.

Baroness Finlay of Llandaff

I have listened carefully to what has been said and I am most grateful to all noble Lords who have commented on the wording of the amendment. I accept that there are corrections to be made to the wording, and that in particular there is a mistake: "senior senior doctor". However, there are other ways in which the wording can be improved.

I want to make a few brief comments. Consent must be informed to be valid, and it must be voluntary. If consent is given under duress, it is not valid consent. That is why I use the word "consent". Consent does not have to be written consent. In fact, written consent only records that the process of consent has occurred. Consent is a process that may be implied, such as the person who exposes his or her abdomen for it to be examined; such as the person who puts up his or her arm for blood to be taken; or the patient who opens his or her mouth when food is offered. That is implied consent. One would never consider requiring patients to sign for everything. That would be ridiculously burdensome.

If pressure has been put on the patient either way, that consent is not valid. That goes both ways. The issue of how experienced a senior doctor has to be was raised under subsection (7). A senior doctor is one who is deemed to be a specialist or one who is on the general practitioners' register with the GMC; they have completed their higher specialist training. However, I disagree with the noble Baroness, Lady Knight, about doctors working 24/7 because fortunately the European Working Time Directive has arrived and has kept people from suffering the hours that I used to have to work.

Lord Swinfen

I am grateful to the noble Baroness for giving way. Is there a definition in law of "senior doctor"? I am not aware of one. It may be understood within the National Health Service and the hospital system, but for the purposes of legislation we need a definition.

Baroness Finlay of Llandaff

I am grateful to the noble Lord for that comment. I shall bear it in mind in terms of any revision that occurs.

As to working hours, a doctor needs to work on a rota. Doctors need to decide with whom they work on that rota. It must be someone with similar competencies.

They also have junior staff to act on their behalf. That is the concept of delegated responsibility. It happens all day and every day in every part of the NHS.

When a doctor in training sees a patient and undertakes procedures, the consultant is de facto responsible even though he is not present at that process. If the consultant does not trust the junior doctor, it is his responsibility to state that that duty is no longer delegated in clinical care. The situation is similar with other colleagues. So there is a need to allow delegated care. I used the wording in order to avoid the situation in which a clinician from another team, or someone clinical who is not a doctor. could step in and stop a management plan without knowing the patient and knowing and being a party to the discussions that had taken place. It was precisely to stop someone coming in and wanting to clear a bed, as has been implied, that I used such wording.

I turn now to the issue of prosecution. I am grateful to the noble Lord, Lord Joffe, for highlighting the current law. When cases are reported to the police they have a duty to, and do, investigate them. I am concerned about the possibility of vexatious litigation. That occurs in the United States. It is in the process of destroying healthcare there. I do not think that it contributes anything to care.

There have been some serious allegations about people being "done to death" in hospitals around the country. They are extremely serious allegations and warrant proper investigation. But I do not think that allegations on the Floor of the House without adequate evidence really contributes a great deal. My picture of patient care does not correspond with that.

Baroness Knight of Collingtree

I wish to understand what the noble Baroness is saying. Is she saying that when information has come to us—and information has been given to us because of the public position we hold, even information from as good a place as from a Member of Parliament in the other place—we should not bring it out? Is she saying that we should not be angry or try to do something about it? Knowing where her heart is, she cannot mean that we have no right to bring forward cases that we know perfectly well have happened. I waited very patiently for objections to be raised to what I said. Not one came.

Baroness Finlay of Llandaff

I ask forgiveness from the noble Baroness, Lady Knight, if she feels that that is what I have been saying. It is not. However, I am concerned that allegations are being made about cases that warrant investigation and which should have been investigated. Evidence should have been sought and if prosecutions by the police were warranted, they should have been brought.

However, I return to the amendment. I accept that it needs redrafting. I continue to have a concern that, without clarification, vexatious cases could be brought, which would not contribute to patient care. I have a concern that the patient's wishes must be considered and that those wishes must be paramount. It was for that reason that I was so keen to include consent in the amendment. At this stage I do not wish to press the amendment. I beg leave to withdraw it.

Amendment, by leave, withdrawn.

8.45 p.m.

Baroness Finlay of Llandaff

moved Amendment No. 6: After Clause 1, insert the following new clause—


There shall be a general duty on all those caring for a patient to offer sustenance to the patient which is appropriate to—

  1. (a) the patient's clinical condition, and
  2. (b) nutritional needs of the patient."

The noble Baroness said: The amendment is in line with the statement of the director-general of the United Nations Food and Agriculture Organisation that the right to food is fundamental to human existence. The amendment was inspired by the speech of the noble Baroness, Lady Masham of Ilton, and the fears expressed by the noble Baroness, Lady Park of Monmouth. It also recognises that the consultant or general practitioner does not control what happens on the ward, in the nursing home or in a similar place of care. Many other healthcare professionals are involved.

The amendment is designed to drive up standards of institutional care of patients everywhere. It is aimed at reaffirming society's respect for life and ensuring that that is an obligation in care. It is aimed to ensure that those with a stroke or other disability do not have their food left out of reach, receive assistance with feeding and drinking, and that fluid infusions are instigated or replaced in a timely manner, without delay. I beg to move.

Baroness Knight of Collingtree

I have no objection to the general tenor of the amendment, but I wonder whether it could not have been better phrased. It does not specify those caring for a patient in hospital. There is an army of excellent ladies outside hospitals who care, and who call themselves carers of patients. Without those helpers, many sick people who are crippled or in some way unable to run their homes could not manage. Those carers may have no idea of what are the nutritional needs or clinical condition of the patient. They are not doctors or nurses.

With the greatest respect, the amendment needs more care in its framing. As with the previous amendment, I understand exactly what the noble Baroness is trying to achieve by it. I support much of what she said, but I submit that the amendment would benefit from more careful thought.

Baroness Andrews

As I understand it, the amendment is intended to clarify that all those caring for patients have a duty to offer sustenance to them appropriate to their clinical condition and nutritional needs. I understand that the noble Baroness is concerned—as many of us have been throughout the Bill's passage—that a distinction is made between poor nursing and medical care that leaves patients to die in distress and withholding or withdrawing artificial nutrition and hydration where doctors do not consider that to be in the patient's best interests.

It is worth restating that we all believe that poor and neglectful care of dying patients is inexcusable. It should not happen. Indeed, causing death by gross neglect could amount to manslaughter. The Bill is not about gross neglect, as the amendment makes clear. The amendment also restates a basic tenet of medical practice: that any care is tailored to an individual's needs. It restates established medical practice. It is worth putting that on the record.

It may be helpful if I set out my understanding of the definitions that will inform the full meaning and implications of the amendment. "Sustenance" is defined in the Bill to mean the provision of nutrition and hydration, however delivered. That includes the range of methods by which sustenance can be provided, from simple oral nutrition and hydration to invasive intravenous and PEG methods.

The word "offer" in the amendment is not defined in the Bill, but the use of the word suggests that it refers to patients who are in a position to refuse. By inference, apart from that limitation, the amendment also implies that if, as the end of life is reached, it is not clinically and/or nutritionally appropriate to offer increasingly invasive methods of delivering sustenance, those caring for the patient do not have to make that offer. Where a person is not in a position to consent to treatment, or where they refuse an offer, the normal rules apply, and those providing care must act in the person's best interests. I offer that as the Government's view of the definitions.

In response to the noble Baroness, Lady Knight, we believe that the clause is aimed at all those caring for patients. It seems to include not only healthcare professionals but family and lay carers also.

Lord Alton of Liverpool

Earlier in the debate, the noble Baroness, Lady Andrews, said that she would hold the ring in maintaining her neutrality. She has done that extremely well in her response to the amendment. Perhaps she should hold the ring further by taking up the suggestion of my noble friend Lady Masham that the Government assist with ensuring that the draftsmanship of the amendments matches the definitions that have been described. That would be of valuable assistance both to my noble friend Lady Finlay, whose amendment I support, and to the noble Baroness, Lady Knight, who says that she accepts the spirit, if not the detail, of the amendment.

Much common ground can be made up before Report. I hope that it will be possible for the Government at least to provide neutral advice on ensuring that the draftsmanship is right so that any legislation we approve is valuable.

Baroness Knight of Collingtree

I wish to express my gratitude and thanks to the noble Baroness, Lady Andrews. All noble Lords who have been engaged with the Bill so far are very pleased that she has been in charge on the Government Bench.

Baroness Masham of Ilton

I feel that Amendment No. 6 is a little clinical. I would like to see added a paragraph (c) stating that it is a human right for patients to be offered sustenance. That would make the amendment less clinical.

Baroness Finlay of Llandaff

I am grateful for those comments. Again, I accept that the wording could be improved. I am most grateful to the noble Baroness, Lady Andrews, for her very helpful clarification of the meaning and for restating that the clause underlines established clinical good practice. That was the intention behind the amendment so as to avoid confusion. I wish to take the matter away and consider the comments that have been made. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

House resumed: Bill reported with amendments.

House adjourned at six minutes before nine o'clock.