§ 8.28 p.m.
§ Baroness Knight of Collingtree
My Lords, I beg to move that this Bill be now read a second time.
On the face of it, it is incredible that a Bill such as this should be necessary. Surely patients in hospital are always given such basic necessities as food and fluid? Well, no. I am afraid that sometimes they are riot, especially if they are old and a doctor judges their life to be useless. But surely no one in hospital is being deliberately starved to death? I am very sorry to say that some are and I shall give examples.
The Bill has become necessary because, first, in 1992 a Law Lords ruling stated that it can be lawful to withdraw tube-delivered food and fluid; and, secondly, the BMA has claimed that feeding by artificial means is "treatment". So while it cannot be denied on the one hand that no human being can live without food or fluid, on the other hand, hospitals are allowed to stop giving them.
The noble and learned Lord, Lord Mustill, one of the Law Lords who gave the ruling to which I have referred, has said that the law is now left in a morally and intellectually misshapen state. The legal advice I received last week is that Britain is in contravention of Article 2 of the European convention and of the Human Rights Act 1998, which states:No one shall be deprived of his life intentionally".There are no caveats or exemptions which would meet what is now happening in our hospitals.
Yesterday I received a lengthy opinion from a Queen's Counsel, who stated:I consider that the provision of hydration in such cases is likely to fall within the scope of the state's positive obligations under Article 2 of the European Convention on Human Rights. Failure even to advise clinicians of the importance of compliance with the principles set out in case law and with the obligations under Articles 6, 3 and 8 of the European Convention on Human Rights renders this guidance unlawful"—that is the BMA's guidance on withholding food or fluid. So not only is failing to give patients sustenance illegal; it is illegal not to make that clear to hospital staff.
I completely agree with the well-known judgment that it is wrong to kill but,Thou shouldst not strive officiously to keep alive".If a machine is all that is keeping a heart beating, or surgery will prolong a life for only a short and suffering time, I would vote for stopping the operation or the machine. But giving food and fluid is not "officiously keeping alive"; it is essential for life.
Doctors tell me that artificial feeding is distressing for the patient. Is it worse than dying or starving to death? Doctors have been feeding artificially for about 1403 100 years now. Have they not found ways to improve it? There is nothing in my Bill to force a 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.
The Government and the BMA state that the Bill is not necessary because it is already illegal to treat patients so as to cause death. If it is already illegal, why is it happening day after day?
There are many cases on record but I shall refer to only three recent ones. A lady told me last week that her much loved husband, a stroke victim, had all fluid intake withdrawn without a word to her or to him. She did not notice at first because when one visits a relative in hospital one immediately assumes that the hospital is giving the patient what he needs. But when she did notice she demanded to see the doctor in charge and demanded that her husband should continue to get fluid. This was reinstated "reluctantly", she said. Although the man is still ill today, he has made visible progress and his family even hope to have him home.
In another case, a man visited an elderly friend in hospital and found him unconscious and receiving nothing. The doctor had decided to remove the saline drip and to ban all nutrition, after which he popped off for the week-end. My correspondent was horrified. His friend was not seriously ill, just old. He contacted the man's wife and together they engaged a private consultant to visit the patient. That doctor immediately reinstated the saline drip. Last week the old man was still alive, conscious and able to speak. Incidentally, the hospital consultant complained bitterly that my correspondent had dared to interfere—though the patient may well have been dead by now if he had not.
A valued colleague and dear friend of mine, Andrew Hunter, who has been a Member of Parliament for over 20 years, supports my Bill. His wife, Jan, was seriously ill with cancer last October. He spent all the time he could sitting by her hospital bed. He did not realise instantly that her supply of food and fluid had been disconnected. When he did, he immediately expressed shock and anger: neither he nor Jan had ever given consent to any such thing. Sustenance was restored. But, when he complained, he was told that this was "normal practice". The hospital said: "We always assume it is the wish of patients' families". I find that incredible. Andrew told me that he found it hard to avoid the conclusion that the hospital was deliberately accelerating Jan's death in order to increase the throughput of patients. That cannot be right. I should be surprised if any of your Lordships could defend such an approach.
1404 Organisations are springing up to counter what is happening. One of them, SOS—NHS Patients in Danger, states:We have been contacted by hundreds of distressed and angry relatives who realised too late that their loved one's death had been deliberately brought about".Another group has produced a human rights card to carry around like a donor card, which states that in the event of their being in hospital and unconscious or unable to speak, they want to be given food and fluid.
A television programme on this subject was screened last year. Viewers saw one old man lying in bed unable to speak who was not being given food or water. He took some 18 days to die and his awful suffering was apparent. A number of other patients in similar circumstances were shown. Many of the nurses and doctors showed kindness and sympathy, but that did not alter what was happening. This was no play; it was a programme about real people in a real hospital. Patients and relatives were real and identifiable. I think what has upset me most is the description correspondents give of their dear ones dying of thirst in front of them. One lady said that her mother had been begging for a drink and she gave her a wet sponge on a piece of stick. Her mother grabbed the sponge and she saw that her teeth were stuck to the flesh inside her mouth. Another lady whose husband was desperately asking to be given a drink thought that there was some medical reason why he could not have fluid and did not give him one. When he died, it was found that his tongue was rolled back in his mouth. I hate to contemplate the suffering that must have been caused to those people.
One colleague said, "Surely they can sue". That is not really the case. Many fear repercussions, either on themselves or on relatives if those relatives are still alive. Usually they are not—in which case, relatives tell me, money would never compensate anyway. There would be no point in bringing a case of that kind. Then there is the fear of cost. Litigation is very expensive, and there is no legal aid for this kind of case. Finally, I am told that it is virtually impossible to find a lawyer to take a case against the NHS, which is the biggest and most protected business in Europe, if not in the world.
Great suffering and distress is being caused. A hugely important international law is being breached. Legal rights and obligations are blurred and uncertain. I submit that there is a clear and present need for this Bill. I commend it to the House.
§ Moved, That the Bill be now read a second time.—(Baroness Knight of Collingtree.)
§ 8.39 p.m.
§ Baroness Masham of Ilton
My Lords, I thank the noble Baroness, Lady Knight of Collingtree, for bringing the Bill to your Lordships' House and for her clear and powerful explanation.
For elderly and severely disabled people, to fear going into hospital, as they do now, because of the risk that they may catch an infection not related to their condition and die is a worrying situation. But it is truly appalling that they should fear that they may be denied 1405 food and fluids because someone plays god and thinks that their life is not worth preserving. I think of Christ, when he was dying on the Cross. He was given a sponge soaked with vinegar to aggravate his craving thirst.
Surely, if the Government want to help patients, they will do something to protect them from those real fears. Friends and relations also need support in times of anxiety. when they see their loved ones being discarded and left to die, be it in hospitals or a care home.
Members of Hitler's SS special force no doubt became hardened to the practices in the concentration camps. The practice of denying people food and fluid could become common in pressurised hospitals, and staff could become hardened to this inhumane policy and turn a blind eye, as doctors had given instructions.
People who have had strokes, for example, sometimes cannot speak, but they know what is going on. Their swallowing may be affected, and they may need to be given fluid through a drip. Their swallowing can recover, as can their quality of life. Not to be able to say that they are desperate for a drink and leaving them until their kidneys and vital organs pack up is cruel beyond words. Surely, to make patients as comfortable as possible and let them die with dignity, without being starved, should be the aim of anyone who calls themselves a member of a caring profession.
Most people who have spent some time in a hospital with long-term patients will have seen some bad practices. For example, staff may put food down out of the reach of patients who cannot reach it or feed themselves. The food is then taken away by some assistant who does not bother or even notice that the food has not been touched. The Bill might make some people who have the responsibility of feeding patients take a little more care and attention over these matters and show some TLC—tender loving care.
Someone with the experience of the noble Baroness, Lady Knight of Collingtree, would not bring such a Bill before your Lordships unless there were a real need to protect vulnerable patients. Many people do not realise that doctors no longer have to take the Hippocratic oath. Therefore, I hope that the Bill will be successful and have a quick, untroubled passage through both Houses of Parliament.
We live in pressurised times, when vulnerable patients need protecting. There should be trust, rather than fear, in our hospitals and homes.
§ 8.44 p.m.
§ The Lord Bishop of Oxford
My Lords, the issue we are considering is very serious. It is absolutely right that we should be debating it in this House. I am therefore extremely grateful to the noble Baroness, Lady Knight, for bringing it before us this evening.
I should like to make it clear at the beginning that I am an unqualified opponent of euthanasia or physician-assisted suicide. Indeed, I was one of the two Anglican bishops who worked with two Roman Catholic bishops to make a joint statement to the 1406 House of Lords Select Committee on Medical Ethics a few years ago which took that position. However, the question of the withdrawal of nutrition and hydration which is being administered by tubes and other means is in my view much more complex from an ethical point of view.
First, although much reference is made to the Tony Bland case in these discussions, I think that we need to be wary of associating PVS—a persistent vegetative state—with conditions such as a deep coma or advanced dementia. It seems to me that, from what I have read, PVS is a distinct medical condition—not quite brain death on the one hand, but not full human life on the other, not in any real sense. The judge in the Bland case, Sir Stephen Brown, said of Tony Bland:His spirit has left him and all that remains is the shell of his body".If, for the sake of argument, that is a true description of persistent vegetative state, I do not believe that it applies in relation to those in a deep coma or suffering from advanced dementia.
With that proviso, there are some important implications of the Bland case. I believe that in many, if not inevitably in all, cases the administration of nutrition and hydration by tubes and other means is an invasive medical procedure. A summary by the then Master of the Rolls was quoted by the noble and learned Lord, Lord Goff of Chieveley. He said:Mr Bland cannot swallow, and so cannot be spoon-fed without a high risk that food will be inhaled into the lungs. He is fed by means of a tube, threaded through the nose and down into the stomach, through which liquefied food is mechanically pumped. His bowels are evacuated by enema. His bladder is drained by catheter. He has been subjected to repeated bouts of infection infecting his urinary tract and chest, which are being treated by antibiotics. Drugs have also been administered to reduce salivation, to reduce muscle tone and severe sweating and to encourage gastric emptying. A tracheostomy tube has been inserted and removed. Urino-genetry problems have required surgical intervention. A patient in this condition requires very skilled nursing and close medical attention if he is to survive".In the light of that description, I do not believe that nutrition and hydration administered by such means can in any sense count as part of the ordinary care, by normal means, which is due to every patient. However commonplace now, it constitutes a medical procedure of a fairly radical kind.
As a medical procedure, the question of whether it is burdensome arises. The papal declaration on euthanasia in 1980 said:One cannot impose on anyone the obligation to have recourse to a technique which is already in use but which carries a risk or is burdensome. Such a refusal … should be considered as an acceptance of the human condition, or a wish to avoid the application of a medical procedure disproportionate to the results which can be expected".He went on to say:It is permitted in conscience to take the decision to refuse forms of treatment that would only secure a precarious and burdensome prolongation of life".I should make it quite clear that, in that statement, the Pope was referring to patients who were dying. Nevertheless, making a judgment about whether a 1407 person is dying is not clear-cut. If a person is in a very deep coma and they are kept alive only by such medical means as I have indicated and that treatment ceased, then the person would of course die. They are being kept alive by medical means, which is absolutely right if there is some hope of improvement and the treatment is not burdensome. But if there is no hope of improvement and the treatment is burdensome, the situation is very different.
When my aunt was in a very deep coma, in order to give time to see whether she would make any kind of recovery she was fed artificially by the method already described. But in due course it became clear that not only was there no sign of recovery but that the body was beginning to reject the nutrition and hydration being pumped into it. The tubes were, quite rightly in my view, withdrawn and she died. That was an entirely proper medical judgment. My worry about the Bill as presently worded is that it would hinder doctors from making that essential judgment.
The noble Baroness, Lady Knight, mentioned some extremely disturbing examples. But I submit that those examples are very different from the example of my aunt. Perhaps the BMA ought to issue further guidance in order to tighten up some procedures. However, I put before your Lordships the situation of a person who for a very long time has been in a very deep coma and is kept alive only by very radical and intrusive medical means. That seems to me to be very different from the three examples that the noble Baroness, Lady Knight, put before us.
At this point it is important to emphasise that a refusal to subject a person to burdensome treatment in the first place, and a cessation of that treatment once it has started, are, from an ethical point of view, the same, even though the latter may be a more obviously distressing course of action. A person is, say, put on a life support machine. After a time it becomes clear that there is no hope of any kind of recovery of consciousness, so the machine is switched off. It was important for the procedure to be tried in the first place. But it is equally important, if the procedure has been tried and found to be having no effect, that that treatment should be allowed to cease. It would be quite wrong for doctors to be inhibited from putting people on life support machines because of a fear that switching off such a machine at a later point was more morally heinous than not putting them on to it in the first place.
So it may be right for a person to be kept alive by nutrition and hydration through tubes, drips and other medical procedures. But the time could come in a particular case, after considered judgment by those medically responsible for the patient, that this treatment was both burdensome and had no possibility of changing the condition of the patient, in which case doctors need to be free to make the appropriate medical decision.
1408 Finally, I want to look at the question of intention, which is mentioned in the heading of the Bill. It refers to,the intention of causing the death of a patient",although the actual offence, as proposed, is withholding sustenance from the patient,if his purpose in doing so is to hasten or otherwise cause the death of the patient".Here I need to make a distinction between what might be in the mind of the medical practitioner, the actual thrust of the action intended, and the foreseen consequences of that action. From a moral point of view, not everything that is foreseen is intended, for that which is intended morally concerns not so much the motivation of the action as the main thrust of the action.
To take an analogy from another sphere of moral reflection, it is a cardinal principle of the Christian tradition of the morality of the conduct of war that civilians must not be directly targeted. Very sadly and too often attacks on military targets result in the deaths of civilians in the surrounding area. They are foreseen and they have to be taken into account when weighing up the morality of the action. But if the attack is directed towards a military target, such civilian deaths do not constitute murder.
To take another analogy closer to the issue we are discussing, the main thrust or purpose of administering morphine is to reduce the pain of a patient. The fact that that dose may shorten the life of a patient is foreseen but it is not intended in the sense that that was not what the action was directed towards. In the case of the withdrawal of tubes, drips and so on, the intention of the action is to stop burdensome treatment that is having no effect. As it has been put:To decide to omit non-obligatory care, therefore, is not to intend the patient's death, but only to avoid the burden of the procedure. Hence, though foreseen, the patient's death is to be attributed to the patient's pathological condition and not to the omission of care … while it is always wrong directly to cause the death of such patients, the natural dying process which would have occurred without these interventions may be permitted to proceed".All kinds of thoughts might be going on in the minds of relatives or medical practitioners, and their mental intentions may be very varied. However, the intention of the action—its purpose as measured by what is actually done in such cases—is not to kill the patient but to relieve him of burdensome treatment that is found to be useless and that is only prolonging life in a condition of increasing distress.
For those reasons, the issue is a much more complex one than euthanasia or physician-assisted suicide, which I reiterate that I strongly oppose. I would find it very difficult to support the Bill in its present form because it would inhibit doctors from making decisions that it is essential for them to make under certain circumstances as part of the proper care that they seek to give to their patients. In certain circumstances, the right judgment is to cease burdensome treatment. In my judgment, as in that of 1409 the BMA, nutrition and hydration delivered by the means that I have described is a medical procedure, and a very invasive one.
§ 8.57 p.m.
§ Lord Tombs
My Lords, I would first like to join others in congratulating the noble Baroness, Lady Knight, on bringing forward this simple but valuable measure, which I support. The proposition seems to me to be a very simple one—that doctors owe a duty of care to their patients. Any weakening of that long-recognised principle would have profoundly undesirable effects, leading to a breakdown of trust in the long-standing belief that doctors act in the best interests of their patients.
In recent years, there has been a disturbing number of reports of patients in hospitals having nourishment by tube withdrawn, so hastening their deaths through dehydration in a particularly unpleasant way. Sometimes, it seems, the patients' relatives have not been consulted or, worse, their wishes have been ignored.
Euthanasia is illegal in this country, yet it seems to be increasingly part of current medical thinking. For example, as has been said, the BMA has advised its members that withdrawal of artificial feeding can be considered in a wide range of conditions, not just the permanent vegetative state which underlay the Bland case of 1993. The decision of the courts in that unhappy case seems to have been taken as providing a justification for that, although the courts at all stages were careful to limit the scope of their judgment to that particular case.
The Bland case rested heavily on the clinical evidence of a permanent vegetative state, in which evidence of extensive brain damage precluded the possibility of recovery. That is clearly not the case in the BMA guidance, nor in the cases reported in the press. Those reported cases are probably the tip of a larger problem, given the secrecy of many hospitals and the notorious difficulty of establishing hard facts about the treatment administered. Those factors also militate against application by the relatives to the courts for relief from withdrawal of sustenance.
It would be wrong to suggest that the issue is a general medical problem, and it has been opposed in public by several caring practitioners with a clear view of the ethical responsibilities and legal limitations of a doctor's calling. However, as I have noted, the practice is present in a number of institutions, whether because of managerial pressure on bed space, simple medical indifference to a patient's right to life, or even perhaps a judgment that the quality of life justifies hastening the patient's death.
The Bill would simply state that actions intended to hasten death are illegal and would make the situation clear for medical practitioners and hospital managements. It would uphold the respect for life that underpins our society and would provide a clear reminder of the purpose of medicine in that society.
The courts in the Bland case called for parliamentary examination of the overall position, which has not been forthcoming. The Government and their 1410 predecessor can take no satisfaction from their failure to do so. But the practices that have resulted from that inactivity, coupled with a misreading of the Bland judgment, have produced a quite unacceptable position. The Bill provides a restatement of the present law in clear and unambiguous terms and, in doing so, reaffirms our society's respect for life and provides support for patients and their relatives. I believe that it is a modest and necessary measure that demands our support.
§ 9 p.m.
§ Lord Swinfen
My Lords, for generations, we have held that anyone who intentionally hastens a patient's death by any deliberate act or omission commits murder. However, in 1993, the Law Lords ruled in the Tony Bland case that it can be lawful for doctors and other medical staff intentionally to kill patients in a persistent vegetative state by withdrawing food and fluids.
It has long been held that hard cases make bad law. The Bland case was a hard case—a very hard case—and has made very bad law. I welcome my noble friend's Bill and thank her for introducing it.
I expect that the noble Baroness the Minister, when she responds to this debate, will say that there is no need for this Bill, because the law already makes it illegal for doctors to withdraw sustenance deliberately to cause the death of the patient. However, in 1999, the British Medical Association published a document, Withholding and Withdrawing Life-Prolonging Medical Treatment. That document recommended the withdrawal of food and fluid by tube from a range of patients who are not dying. That included, among others, a patient who had suffered a severe stroke, Alzheimer's disease and severely disabled new-born babies.
If a mother breast-feeds her baby, is she giving medical treatment? I do not think so. When you, my Lords, have a meal or a drink, are you undergoing medical treatment? I think not.
Despite the fact that the BMA report has been condemned by a number of Christian, Muslim and Jewish organisations, including medical groups, and that there have been four Early-Day Motions tabled in the House of Commons asking the Government to make it clear that the BMA report does not represent legal guidelines, the Government have taken no action to protect patients.
As has already been mentioned, there is already anecdotal evidence, if not hard evidence, that patients are having sustenance withheld without either their consent or the consent of their relatives or representatives. That must stop. In the Bland case, the doctors had to obtain the consent of a court to withdraw sustenance. That may take a little time and cost money but it was the correct way to deal with a hard case. That course should be followed in future in similar cases.
In this country, our medical services, as we all know, are under great pressure financially and in respect of the number of cases. It would appear that once a patient reaches a certain age, the National 1411 Health Service might give up on them. That, I suspect, is an attempt to reduce costs and waiting lists. We appear to have forgotten the old saying that a stitch in time saves nine. If we followed the Australian principle of keeping elderly people fit and well by giving treatment early, it would, in the end, save money and also reduce waiting lists.
I support the Bill. However, in my view, there is one amendment that we will have to make in Committee—that is, to the meaning of "sustenance", as set out in Clause 1(2). I suggest that in line 8 the word "or" should be replaced by "and"; otherwise, a patient could be fed dry food with no liquid and that would make it virtually impossible for him to swallow. I welcome the Bill.
§ 9.5 p.m.
§ Lord Alton of Liverpool
My Lords, the whole House should he grateful to the noble Baroness, Lady Knight of Collingtree, for introducing the Bill and laying it before your Lordships' House. I join my noble friend Lady Masham and the noble Lords, Lord Tombs and Lord Swinfen, in welcoming the way that the noble Baroness introduced the Bill this evening.
In his speech, the right reverend Prelate invited us to tilt at what I consider to be imaginary windmills. I do not believe that there is any disagreement between us about what is often called the "heroic lengths" argument. As the right reverend Prelate rightly said, we are under no obligation to keep alive someone who would otherwise die. He said that he was opposed to euthanasia, and we agree about that. But undoubtedly, if we reclassify food and fluid as a burdensome treatment, then we shall sanction euthanasia.
This morning, a letter appeared in The Times which gets to the nub of the issue that we are debating this evening. The correspondent wrote that,many of us assumed that nutritional requirements of patients in hospital were so fundamental we would not even imagine that there was a lack of such service … If something so basic is not given priority it is little wonder that many other aspects of hospital care are ignored, such as cleanliness and hygiene. How can management allow such ineptitude to exist?Food and fluid, defined in this Bill as "sustenance", have always been regarded as basic care to which everyone is entitled. Your Lordships should be under no illusions that acceptance of the withdrawal of nutrition and hydration from non-dying patients has consistently been identified by the pro-euthanasia lobby as the precursor to the legalisation of positive euthanasia. The right reverend Prelate should be under no illusion about that.
Noble Lords should not take my word for that; they should listen to these words:If we can get people to accept the removal of all treatment and care—especially the removal of food and fluids—they will see what a painful way this is to die and then, in the patient's best interests, they will accept the lethal injection".Those are the words of Dr Helgha Kuhse, pro-euthanasia bioethicist, speaking in September 1984 at the Fifth Biennial Congress of Societies for the Right 1412 to Die. Dr Kuhse's views are shared by Professor Sheila McLean, who referred to Bland and similar judgments as a form of non-voluntary euthanasia.
Let us remember that in one of our neighbouring countries—Holland—precisely those arguments led to the introduction there of voluntary euthanasia, its legalisation and now involuntary euthanasia, with more than 3,000 people being killed by doctors in one year alone. When defenders of life are turned into the destroyers of life, that is in no one's interest. It is little wonder that in a recent opinion poll in Holland, the vast majority of elderly people said that they were now frightened of going to their doctor because of the reversal of the traditional roles in which doctors and nurses have been placed.
We are told by some of those who oppose it outside your Lordships' House that the Bill is unnecessary as it simply makes illegal something that is already illegal—namely, killing patients. If only it were that simple. The killing of non-dying patients in a persistent vegetative state—PVS—and similar conditions by the withdrawal or withholding of sustenance was authorised, as we have already been told, in the Bland judgment and is supported, as we have heard, by the medical establishment.
The Patients' Protection Bill is about restoring integrity and coherence to the law of homicide. Until the Bland judgment in 1993, the common law was quite clear. It was always wrong to have as the purpose of one's conduct the bringing about of another person's death for any reason other than the requirements of justice. That common law principle is enshrined in Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Prior to 1993 it was a clearly understood part of the common law that murder can be committed not only by a positive act, but also by omission in situations where there is a duty to provide what is omitted. That covered doctors who owe their patients a duty of care.
In the Bland judgment, which the right reverend Prelate has defended, it was held that to stop feeding Tony Bland was a lawful omission. It was said that tube feeding was medical treatment that the doctors were under no duty to provide because it was not in the patient's best interests, was futile and was a course of conduct endorsed by a responsible body of medical opinion. However, we have not heard that three out of the five Law Lords stated—the others not dissenting—that the aim or purpose of withdrawing tube feeding was to bring about Tony Bland's death.
In a long quotation which I believe should be read into our record—I hope your Lordships will forgive me—the noble and learned Lord, Lord Mustill, said:it is essential to face up squarely to the true nature of what is proposed … Emollient expressions such as 'letting nature take its course' and 'easing the passing' may have their uses, but they are out of place here, for they conceal both the ethical and the legal issues, and I will try to avoid them … The conclusion that the declarations can be upheld depends crucially on a distinction drawn by the criminal law between acts and omissions, and carries with it inescapably a distinction between, on the one hand what is often called 'mercy killing', where active steps are taken in a medical context to terminate the life of a suffering patient, and a 1413 situation such as the present where the proposed conduct has the aim for equally humane reasons of terminating the life of Anthony Bland by withholding from him the basic necessities of life. The acute unease which I feel about adopting this way through the legal and ethical maze is I believe due in an important part to the sensation that however much the terminologies may differ the ethical status of the two courses of action is for all relevant purposes indistinguishable".Prior to Bland, such conduct was incompatible with the duty of care owed to a patient. Following Bland, conduct aimed at ending a patient's life, providing it counts as an omission, may well be deemed as compatible with the exercise of the duty of care for a patient if doctors judge that the patient's life is no longer worthwhile. Why, if the Government are so sure of their moral argument, are they misleading the public? I have a letter from David Lammy, Minister in the Department of Health in which he claims that it is untrue to state that the purpose of withdrawing food and fluid from Tony Bland was to cause his death. What other purpose could it possibly have? That is patently untrue.
The Bland case can be starkly contrasted with the case of one of my former constituents in Liverpool, Andrew Devine. The House will remember that on 15th April 1989, 96 people died at Hillsborough. Several of my then constituents were among the fatalities and others were injured. One was Andrew Devine who, like Tony Bland, went into a deep coma. Their conditions were identical. Shortly after the Hillsborough tragedy I visited Andrew and his parents. As the years passed I have followed Andrew's progress. Last week I asked Andrew's mother whether I could tell your Lordships what had happened to him in the intervening 14 years during which she and her husband had fought for Andrew's life, and she gave me her permission. Mrs Devine told me that having been told by medics that,Andrew will never be able to swallow or to eat food",she felt that her son had "been written off". She was told that it,would be a waste of resources to treat him".The medics also said that it would be clear within two years whether Andrew was going to make any progress. In fact, it took five years. They told his parents "nothing can be done" when quite a lot could be done and was done.
Many of your Lordships will recall the front page story from the Guardian in 1997 when Andrew's parents talked publicly about the improvements that had taken place in his health. Against all the predictions Andrew now eats heartily and eats solids. Mrs Devine is adamant that—I quote her words—From our point of view it was a hard enough battle to fight for the things we needed without being offered the chance to do away with Andrew".She says,Starving or dehydrating someone is an unpleasant death—you might as well give a lethal injection".Through their love and devotion Andrew's parents found the Brain Injury Rehabilitation and Development Centre at Broughton, near Chester, not because they were referred there, but because they found it via a 1414 television programme. They took Andrew to London, to the Royal Hospital for Neuro-disability at West Hill in Putney and paid for his first course of treatment themselves.
Mrs Devine argues that the law needs to be strengthened becauseeconomic pressures to free beds would be overwhelming; the pressure would be enormous".And yet precisely that pressure is now being exerted, hence the need for legislation of the sort proposed by the noble Baroness, Lady Knight.
Withdrawal of feeding, including oral feeding, is now being extended to patients who are not in PVS. In June 1999 the BMA published guidance on Withholding and Withdrawing Life prolonging Medical Treatment, in which they considered it appropriate to withdraw tube feeding from,patients who have suffered a stroke or have severe dementia".That unethical practice has received support from the GMC in its 2002 publication, Withholding and Withdrawing Life prolonging Treatments: Good Practice in Decision-making. Sadly, the Government have shown no intention of protecting patients from the BMA guidelines. In their latest consultation document, Making Decisions: helping people who have difficulty deciding for themselves, nutrition and hydration are referred to throughout as "medical treatment".
It is simply not good enough to say that killing patients is already illegal therefore there is no need for the Bill. The decision of your Lordships' House in Bland, its confirmation in subsequent cases and the guidance emanating from the BMA and GMC have left the law, in the words of the noble and learned Lord, Lord Mustill, quoted earlier by the noble Baroness,both morally and intellectually misshapen".The Bill seeks to restore moral and intellectual clarity to the law. To allow doctors to withdraw sustenance from patients with the purpose of ending their lives subverts the law of murder. Hence the urgent need for the Bill.
As the noble Baroness mentioned, this week we have seen counsel's opinion that the BMA and GMC guidelines, in respect of the withdrawal of life-prolonging medical treatment, are unlawful. I have this evening placed a copy of the opinion in the Library of your Lordships' House.
Tube feeding or sustenance is not medical treatment. It is basic care. Many people with cystic fibrosis are fed by gastric tube and live an otherwise normal life. Others with paralysis of the throat and swallowing mechanisms feed via nasal tubes. Great progress has been made by nurses, doctors, dieticians and speech therapists working together to help those with swallowing difficulties. If swallowing is impossible, thirst should be relieved by fluids delivered by the least invasive method possible in the circumstances.
In all the time that my noble friend and I have been debating the matter, I have yet to hear a convincing explanation as to why nutrition and hydration, 1415 however so delivered, should be classified as medical treatment and not basic care. What medical ailment is being treated? Since when has hunger or thirst been considered an illness? It has even been established in the case of animals that freedom from hunger and freedom from thirst constitute two of the five welfare considerations to which all domestic animals are entitled. Surely it is not unreasonable for the same criteria to be applied to human beings.
It is deeply paradoxical that last week a shepherd was sentenced to six months in prison for not providing enough food and water for his sheep. If that had been a human being he would at least have been worth a judgment in your Lordships' House.
When the Minister replies she should clearly state, without citing the BMA or GMC guidelines, why food and fluid are considered medical treatment? If non-dying patients are denied nutrition and hydration then the inevitable consequence is death within days, whatever the pathology. By calling nutrition and hydration medical treatments the courts, the Government, the BMA and the GMC have over-medicalised sustenance and have opened the way to the killing of vulnerable, particularly elderly, patients in our hospitals. Regardless of whether nutrition and hydration is delivered by a spoon, by PEG, or by nasogastric tube, it does not alter the substance of what is being delivered. The means of delivery may be artificial—not the sustenance itself. To talk of artificial nutrition and hydration is a complete misnomer.
The noble and learned Lord, Lord Hoffmann, noted in his judgment in Bland:If someone allows a small child or invalid in his care to starve to death, we do not say that he allowed nature to take its course. We think that he has committed a particularly wicked crime. We treat him as if he had introduced an external agency of death. It is the same ethical principle which requires doctors and hospitals to provide patients in their care with such medical attention and nursing as they are reasonably able to give … The giving of food to a helpful 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".The Bill focuses on the purpose of the person responsible for the care of the patient. That draws on the commonsense understanding of the notion of purpose, which is integral to the law and to ethics. We always distinguish someone's purpose in acting from other consequences—even those that may be foreseen. If a person responsible for the care of a patient withholds or withdraws sustenance with the purpose of causing death, his conduct will be unlawful.
Nothing in the Bill obstructs good medical practice. The Bill does not impose any requirement on doctors to strive to keep alive patients who are dying. The role of doctors in terminal illness is to provide as peaceful and pain-free a death as possible. The Bill does not make unlawful the withholding or withdrawal of sustenance from a patient who is in the process of dying, where, as the right reverend Prelate the Bishop of Oxford, mentioned, the risk or discomfort of the placement of feeding tubes would be regarded as unduly intrusive or excessive. That is far removed from the deliberate 1416 withholding or withdrawing of sustenance with the purpose of causing the death of a patient who is not otherwise dying.
The last thing that I want is good doctors being exposed to complaints or the risk of prosecution at the behest of aggrieved relatives. That is why purpose is the key. Those responsible for patient care should not fear the Bill. As your Lordships' Select Committee on Medical Ethics observed at paragraph 243,juries are asked every day to assess intention in all sorts of cases".They could do so on the rare occasions where there was any reason to suspect that the doctor's purpose was to kill.
When sustenance is withdrawn for ethically and legally acceptable reasons, the data about a patient's clinical condition and the observations of other carers will support the person responsible for the care of the patient. Contrary to some assertions, the Bill will not encourage the practice of "defensive medicine". Nor will the Bill restrict patient autonomy. A doctor's respect for a competent patient's refusal of sustenance would involve no intention on his part other than a concern not to commit an assault, of which he would be guilty in imposing sustenance contrary to a competent patient's wishes.
Where health professionals remain concerned about the practical impact of the Bill, I know that the noble Baroness, Lady Knight, has rightly agreed to meet them further to discuss their legitimate concerns. We cannot sit back and do nothing. The noble Baroness has given some disturbing examples of the withholding and withdrawal of nutrition and hydration from non-dying patients that has inevitably resulted in their deaths. Elderly patients with dementia or strokes appear most at risk. Last July, we had a damning report from the Commission for Health Improvement following its investigation into elderly deaths at Gosport War Memorial Hospital.
I could cite many other appalling cases, many of them collected by the patient lobby group SOS-NHS, which has been mentioned, which demonstrate why vulnerable patients need the protection of the Bill. Patient groups such as SOS-NHS are especially concerned about the increasingly common practice of sedating patients and then deliberately withholding nutrition and hydration until the patient dies. Having been sedated, the patient is unable to demand sustenance and his or her distress may not be readily apparent. The death certificate will commonly state that the cause of death was the underlying medical condition, not dehydration.
Last month, Radio 4's "File on Four" programme drew attention to that worrying practice. Citing disturbing examples of over-sedation and the withdrawal of food and water, the programme-makers suggested that they raised wider questions about the effectiveness of checks and controls in our care homes and about how we care for our ever-increasing number of elderly citizens. I shall arrange to place a transcript of the programme in the Library.
1417 Such practices must end. The medical establishment has shown no desire to put its own house in order. Hence the introduction of the Bill. The 1994 report from the House of Lords Select Committee on Medical Ethics concluded that the Bland judgment should not be enshrined in statute. It stated:We consider that the progressive development and ultimate acceptance of the notion that some treatment is inappropriate should make it unnecessary to consider the withdrawal of nutrition and hydration, except in circumstances where its administration is in itself evidently burdensome to the patient".Sadly, its conclusions have been ignored by the Government and the withdrawal of nutrition and hydration from non-dying patients has become an accepted element of medical practice. Food and water are basic human needs that should never be withdrawn or withheld if the purpose in so doing is to hasten or otherwise cause the death of the patient.
In conclusion, the pro-euthanasia lobby sees acceptance of the withdrawal or withholding of sustenance from patients who are not dying as the first major hurdle to overcome on the road towards the legalisation of assisted suicide and positive euthanasia. The noble Lord, Lord Joffe, has already placed before your Lordships' House a Bill to achieve that purpose. After all, they argue, if it is legitimate to subject patients to a slow, painful and distressing death by starvation and dehydration, surely it is more compassionate to give them a lethal injection that will ensure a swift death. We must wake up to the pro-euthanasia agenda being promoted in our hospitals. To purposefully starve or dehydrate patients to death is unethical and should be illegal. I support the noble Baroness's Bill.
§ 9.25 p.m.
§ Baroness Finlay of Llandaff
My Lords, this debate is important. As a healthcare professional I must state that I think it essential that healthcare professionals act always in the best interests of the patient. Prior to this debate, I spoke to groups of physicians working in palliative care who are opposed to euthanasia, as I am. I have also taken soundings from the Guild of Catholic Doctors, which is opposed to euthanasia.
However, there is widespread concern over the Bill. The intentions behind it are good. Fluids and nutrition are a basic human need and right. To deny either with the express intention of ending life is against current law. I declare an interest, as I teach medical ethics. I have also been involved in taking decisions about how far to go with fluids or nutrition. I have agonised over such decisions with my team and all the different healthcare professionals involved.
It is almost impossible to make a prognosis predicting what will happen to a patient. At best, it is a best guess given the information available. But no healthcare professional can claim to have a crystal ball. I am not surprised at cases such as those we have heard about tonight where doctors predicted that there would be no recovery but there was an astounding one. In my own practice I have had patients I thought were dying who were sitting up having breakfast the next day. I have also had patients I expected to live for months who died within days. Making a prognosis is an impossible and very coarse art; it is not a science.
1418 There has been much public discussion about patients' death. But too little has been said about the importance of patients feeling assured that all is being done on their behalf to respect life and to value the days left to live, even when death scents imminent. The Bill is designed to protect the vulnerable, especially those with a non-progressing disease who are not competent to make decisions on their own care. It is indefensible to place food or fluids out of reach of patients or not to assist them to take in that food or fluid with good nursing care.
However, I contend that the Bill may complicate rather than clarify decision-making. Paramount to all interventions or treatment cessation is the patient's consent. When patients, for whatever reason, are unable to give consent or to signal competent refusal, the principle of best interest becomes the default position. That best interest should be for the patient as a person, and there should be default towards preserving life. The Bill does not mention the issue of patient consent or refusal.
As drafted, the Bill poses several difficulties. First, it deals only with nutrition and hydration by whatever means, yet oxygen is essential to life. Ventilation is often a difficult decision, but oxygen by mask is not. It is not covered in the Bill. Other aspects of care are essential too, such as turning a patient who is unable to do so to avoid pressure sores.
Secondly, although nutrition and hydration constitute ordinary care when given by ordinary means, there is some evidence that tube-feeding and total parenteral nutrition are futile and even harmful to some categories of patients. Both may be burdensome to the patient to such an extent that the patient considers the possible benefits to be outweighed by the burdens.
Insertion of the nasogastric tube is unpleasant and carries a risk of aspiration to the lungs, causing a potentially fatal pneumonia. Percutaneous endoscopic gastrostomy is an unpleasant procedure. and failure may require a more extensive operation to put a tube directly into the stomach. Such an operation is not without its risks. The feeds themselves can cause severe diarrhoea, however carefully they are controlled by a dietician.
Total parenteral nutrition requires careful monitoring and is complex to manufacture. The high costs must be considered, so that it is used when evidence supports its efficacy but not otherwise. Certainly, it should not be used randomly. Current good practice dictates that, when such interventions to deliver nutrition will be of benefit, they should be available to patients. However, it would be invidious to force any of them on all patients.
The Bill would result in defensive medical practice, rather than practice in the interests of the individual patient. Some patients dying at home unable to swallow would he moved to an in-patient unit for parenteral fluids, lest the family later accuse the doctor of withholding hydration. In 1997, the National Council for Hospice and Specialist Palliative Care Services, along with the Association for Palliative Medicine, stated that good practice suggested that decisions regarding artificial hydration should involve 1419 the multi-professional team, the patient, the relatives and the carers but that the senior doctor should have ultimate responsibility for the decision. The competent patient has the right to refuse artificial hydration, even if it may be considered of clinical benefit. Incompetent patients retain that right through a valid advance refusal.
The right reverend Prelate the Bishop of Oxford laid out the ethical complexities of decision making and explained the problems with intention and the double effect that could occur when there was a foreseeable but unwanted outcome. I shall try to put it simply. Four main principles underlie medical decision making: autonomy; beneficence; non-maleficence; and justice. Autonomy is concerned with the individual's decision making, and from it flows criteria for consent. However, the autonomy of one person cannot override the autonomy of another. A doctor or nurse cannot be forced by relatives or others to give treatment that is not in the best interests of the patient, as they see them. The Bill would end that situation and would force treatment, irrespective of predicted outcome and scientific evidence.
Non-maleficence—avoiding harm—and beneficence—doing good—mean that futile treatments that may be unpleasant or distressing and bring no benefit should not be administered. The injudicious insertion of intravenous lines or of nasogastric or gastrostomy tubes would be unethical when no benefit is to be had. The principle of justice requires that the patient be given the best treatment within the resources available and that resources be justly allocated. It tries to cope with the problems of rationing. The Bill will promote the inappropriate and, hence, unjust use of total perenteral nutrition, as it states that,nutrition or hydration, however so deliveredare required. I fear that the Bill will be a lawyer's charter and will be unenforceable in practice. Proof of the purpose of the actions of a clinician would be difficult, although intention may be recorded in the notes.
Current guidance on care of the dying was encapsulated in Changing Gear, a document published by the National Council for Hospice and Specialist Palliative Care Services. It has been embodied in care pathways for care in the last 48 hours of life. The diagnosis of dying as a specific clinical diagnosis is difficult to make and must be made at the point at which further interventions are deemed to be futile and burdensome. Such decisions must involve family and carers and must include all those involved in the care of the patient. Interventions aimed at comfort must be continued, but those that are futile must be stopped. These patients are dying as part of their disease process. There is little evidence from well-conducted studies that nutrition or hydration improves the patient's comfort or survival.
However, other care can be absolutely crucial to comfort. Many drugs cause a dry mouth. That does not mean that the patient is dehydrated and needing a drip. It means that meticulous attention to mouth care is essential. We have already heard a vivid description of a horrifically dry mouth. I must state that there are 1420 many drugs that make the patient's mouth as dry as sandpaper. Putting up a drip does not deal with that; excellent mouth care is needed.
Current practice has been laid out in guidance to the professions in withdrawing and withholding treatment. I am aware that that is currently under criticism. However, it requires that decisions are made on an individual basis and that each patient is separately and individually considered. It is because I fear that that would not happen that I have difficulty in supporting the Bill in its present form. However, I respect the principles behind the way that the Bill has been brought before us.
§ 9.36 p.m.
§ Lord Brennan
My Lords, perhaps your Lordships will allow me to speak in the gap.
The first principle with regard to the sanctity of life is that we should not strive officiously to keep alive those who are dying. An exception to that principle of the sanctity of life is the judgment in the Bland case, which specifically stated that it was a special case in which someone in a persistent vegetative state could have doctors justifiably withdraw medical treatment by way of artificial feeding.
The third issue that occupies this debate, and which is to be stimulated soon by the noble Lord, Lord Joffe, is to determine, outside of the exceptional states, in what circumstances medical treatment can be given or withdrawn when it has the effect of terminating life—namely, when the patient is not dying and it does not come within the definition of Bland.
I suspect that the noble and learned Lord, Lord Mustill, following his speech in Bland, would be extremely surprised to learn—and to do so some years after he said that less extreme cases than Bland should be approached with extreme caution; that Parliament must have a role; and that he did not accept that this was a medical question alone—that as a society we had accepted in large part that it is for the BMA and the GMC to determine the manner in which these decisions should be made by doctors. Do doctors have the moral or social capacity to do that? What role do families play in their decisions? What role do resources play in those decisions? Those are basic questions which we would expect this House and another place to consider.
In our society, the ultimate surety for the value of human life is Parliament, speaking for the moral will of the people. It is not, if I may respectfully suggest, government; it is not, if the noble Baroness will accept, necessarily in the Bill that she has presented; and it is certainly not in the Bill which the noble Lord, Lord Joffe, intends to present. We must be very clear that the issue of euthanasia, and that which might be thought to be euthanasia, will not go away. It is central in our social and moral debate in this country. If a resolution is not reached in this debate, there will be others in which we shall have to grapple with it.
I hope that in today's debate and later, that sentiment is borne in mind. We should be deciding questions which profoundly affect the way in which our society accepts and deals with the value of human life.
§ 9.40 p.m.
Lord Carlile of Berriew
My Lords, I, too, congratulate the noble Baroness, Lady Knight of Collingtree, on introducing the Bill with such clarity and charm. A small Bill that deals with so complex an issue has, by its brevity, a virtue rather than a vice. If only other Bills as important as this were so brief. This is the kind of issue that is ideally suited to debate in your Lordships' House. That has been demonstrated in our short debate. The issue is one which has no party political input, raises moral issues and asks further questions on which many noble Lords have an expert view.
I support the Bill because it is about purpose and not about consequence. I f the noble Baroness had sought to render unlawful yet another consequence—there is a tendency to render consequences criminal in the modern age—then I would immediately oppose it. I believe that to be a retrograde approach and one that has been taken increasingly by the present Government and their predecessors in the field of criminal justice. The Bill seeks to declare unlawful a purpose which plainly is and should be unlawful—on moral, religious, utilitarian and legal grounds.
I am one of those who will suspend his morning ablutions if the right reverend Prelate the Bishop of Oxford interrupts them at a quarter to eight with his "Thought for the Day". I must say, however, that I do not have his confidence. I would describe my own thoughts on religion and faith as being, at best, conscientious but with confused internal wrestling on a good day, while on a had day, a complete muddle. I do not believe that my religious views, such as they are, could provide much of a foundation for anything, least of all for making a moral judgment. So I approach the issue as a lawyer and a utilitarian; thus, I hope, making a decent, empirical, moral judgment as a result.
I agree completely with the right reverend Prelate about euthanasia. I shall be in the House to oppose the Bill from the noble Lord, Lord Joffe, and I shall be in the House on any other available occasion to oppose any legislation that attempts to introduce euthanasia, either by the front-door or by the back-door, into the law of this country. The experience of other countries has shown it to be impracticable and I think it renders a great disservice to humankind.
In my view, the law needs to be made clear. This Bill makes the law clearer and I do not think that it would do anything to harm the interests of, for example, the right reverend Prelate's aunt. I believe that the Bland case did not leave the law clear. The noble Lord, Lord Brennan, spoke eloquently, albeit briefly, about the opinion of the noble and learned Lord, Lord Mustill, in that case. I agree with him. I suspect that the noble and learned Lord would be surprised to find that his comments about what he stated to be an exception have been elevated to a principle. Indeed, he is not the only Law Lord to have noted that.
I am sure that the noble Lord, Lord Brennan, had the noble and learned Lord, Lord Browne-Wilkinson, in mind as well. He emphasised in the Bland case that it was an extreme case where it could be overwhelmingly 1422 proved that the patient was and would remain insensate. However, the noble and learned Lord went on to say that it would be desirable for Parliament to consider the moral, social and legal issues that the case had raised. Parliament had not considered properly those moral, social and legal issues until the Second Reading tonight of the Bill put forward by the noble Baroness, Lady Knight. I think we should welcome the opportunity.
People at large tend to hold a hagiographic view of doctors. Somehow the doctor is elevated in status by society as a whole. My late father was a general practitioner. After his death, some of his patients described him in the most flattering way as a beloved physician. It was a fair view of his practice and his practices. However, even with my own prejudices in favour of doctors as a result of my experience of my own father, I have to say that sometimes doctors are quite ordinary people who find it difficult to wrestle with the moral and ethical judgments which they have to make. Indeed, we have just heard from the noble Lord, Lord Brennan, who, if I may say so, is making a handsome living out of the ordinariness of medical practitioners in his distinguished clinical negligence practice.
The law needs to be clear so that every doctor, if he looks in the right place, can read and understand his obligations on an everyday basis. The problem we are talking about in the Bill can be met at very short notice—it can be met daily—and I do not agree with the briefing that I received from the British Medical Association that the law is as free of doubt as it could be.
There has been a bit of a muddle in this debate between the British Medical Association, which represents doctors, and the General Medical Council, which is the registration body and which issues documents such as Withholding and Withdrawing Life-Prolonging Treatments: Good Practice in Decision Making published in August 2002. The General Medical Council has charge, in registration terms, of ethical matters of that kind, and failure to follow its guidance may, and sometimes will, affect the registration of a doctor.
Speaking as someone who was a lay member of the General Medical Council for 10 years from 1989 to 1999, in my view its document is not as clear as it could be. The noble Baroness, Lady Knight, referred to a leading counsel—I believe that she was referring to the well-known public lawyer, Richard Gordon QC—and he is also of that opinion. I have read his opinion, which seems to raise a number of doubts about the GMC document to which I have referred. Doctors need to know where they stand. If the GMC is unable to tell them exactly where they stand, then the general law—and that means Parliament—has to tell them.
My experience of the GMC taught me something else. It was an almost entirely positive experience which provided me with the opportunity to move on from the benign prejudices of my fattier to a much more general view of the medical profession, seeing it at its best and, I regret, occasionally at its worst.
1423 Over a period of 10 years, my membership of the GMC provided me with an opportunity to talk to hundreds of doctors, often in local social surroundings, about a wide range of issues but with a particular focus on medical ethics. I am left with the impression that no dutiful doctor wants to be left with a choice about the causing of death. No dutiful doctor is able deliberately to cause the death of a patient according to his Hippocratic oath—which, because most doctors no longer swear a Hippocratic oath, I take to be a metaphor for his perception of his duty. Rather it is an instinct trained into doctors; it is a practice bred in doctors that they do not cause the death of patients.
As the noble Baroness, Lady Masham, said, it is important that patients should have no fear when they go into hospital that their lives will be terminated deliberately. I believe that the general attitude of doctors, with very rare and rightly criminalised exceptions, supports that view. It would be a rogue situation in which the purpose of actions was death.
Doctors alleviate extreme suffering daily. I have had the misfortune of seeing that for myself in a family situation on at least two occasions. They give morphine; morphine sometimes hastens death. But the purpose of giving the morphine in such situations is to relieve suffering, not to hasten death. The noble Baroness's Bill does nothing to criminalise what doctors do in such situations—far from it. I understand her to support that kind of action.
Sometimes conflicting issues call for a judgment. Sometimes conflict involving nutrition and hydration and treatment brings about a conflict in a doctor's mind and he has to make a legitimate judgment. But as long as that judgment is founded on therapy, and on his calculation of how best to alleviate suffering, it is properly made. This is familiar territory to all professional people. They have to make critical judgments on critical issues, at critical times. But they should be left to make their judgment with a clear understanding of where they stand if they cross the line and deliberately cause death. That is achieved by this Bill.
What cannot be acceptable is the deliberate withdrawal of the very basis of human life—food and water, nutrition and hydration. The withdrawal of food and water cannot have a therapeutic purpose. On its own, it can only lead to death. The withdrawal of food and water cannot on its own be treatment. It is simply, as I have said, a removal of the basic requirements of human life.
This Bill provides, at the very least, a basis for greater clarity in the law. For those reasons, speaking purely personally, I support it.
§ 9.51 p.m.
§ Earl Howe
My Lords, before I do anything else, I congratulate my noble friend Lady Knight on bringing forward the Bill and on her persuasive and powerful speech in moving its Second Reading. There is no doubt in my mind that she has raised a vitally important issue. I say that as someone who initially doubted, when the 1424 Bill first came to my notice, whether there really was an issue to be addressed in a debate of this kind. I do not feel any such doubts now; and I should add that the volume of letters and e-mails that I have received on the subject testifies to the widespread concern that exists among the public about the treatment of terminally ill and frail elderly people in our hospitals.
I begin with a statement that perhaps cannot be made often enough. The Conservative Party is against legalising euthanasia. By "euthanasia" I mean any deliberate intervention which has the purpose of ending life. That view rests on both ethical principle and pragmatism. As a matter of general principle, human life is intrinsically valuable and sacrosanct, and should be safeguarded in law and in practice. The law already recognises the special status of human life in the framing of the homicide laws and in the judicial penalties for murder and manslaughter. As a matter of pragmatism, our job as legislators is to protect the most vulnerable in society. If euthanasia were legalised, many frail and elderly people would feel pressurised into having their lives ended—they would imagine themselves to be a burden to others, or they might think or know that their relatives wished them to go. It would be a terrible slippery slope. We must never espouse the principle that some lives, such as those who are sick, disabled or depressed, are worth less than others. We are not even entitled to take such a view of our own lives. There are many cases of people who have expressed a fervent wish for euthanasia, only later to change their minds completely when the quality of their lives improved. It should not legally be within my gift to ask another person to kill me.
Unlawful killing, under English law, includes killing both by act and by omission. Indeed, in my opinion there is no ethical difference between the two. It should follow from that that, unless sanctioned by a court, the deliberate withdrawal or withholding of nutrition and hydration from a person constitutes unlawful killing. That was the position at which I started out when my noble friend's Bill first came to my attention: and it was why I said just now that initially I did not think there was a legal issue to be addressed. The significance of the Bland case, however, was that for the first time nutrition and hydration were classified by the court as constituting "medical treatment". It has never been unlawful to withdraw medical treatment from a patient when such treatment is regarded as oppressive and futile. Doctors are not under a duty to prolong life officiously by means of medical interventions when to do so is not in the best interests of the patient.
Tony Bland was in a persistent vegetative state; the Law Lords, on a majority decision, allowed medical staff to withdraw sustenance from him and he died of dehydration. That case was considered by the House of Lords on its own merits, and was not meant to act as a legal precedent. However, whether or not that was the intention, the consequence of the judgment was to act as a beacon for future medical practice. There has, I believe, been a subtle shift in medical ethics.
In its judgment on Bland, the House of Lords recommended that in all cases where the withdrawal of nutrition and hydration was being considered for a 1425 patient in a persistent vegetative state, a court declaration should be sought. That was reassuring. However, the BMA has made it clear that it regards that as an interim recommendation. Its recent guidance expresses the hope that,in future the Courts will decide that PVS cases no longer inevitably require court review, where consensus exists".The guidelines then go further to cover non-PVS cases. They state:The BMA can see no reason to differentiate between decisions for patients in PVS and those for patients in other serious conditions where artificial nutrition and hydration is not considered to be a benefit, which are currently governed by established practice without the need for a legal review".In other words, the BMA is asserting the right of doctors to decide that administering food and water may be futile for a patient who is not in a persistent vegetative state, as well as for one who is.
The type of patient referred to in this context is the adult who does not have the capacity to make or communicate decisions and who does not have a valid advance directive, as well as children and young people. Decisions to withdraw nutrition and hydration from such patients must, says the BMA, be subject to a formal clinical review by a senior clinician. The BMA admits that any decision to withdraw food and water from a patient leaves doctors open to a legal challenge. However, the guidance expressly sanctions the possibility of doctors taking such decisions under their own discretion.
The mother of a friend of mine had a massive stroke and could not move or communicate in any way. The doctors declared that she was in a persistent vegetative state and recommended the withdrawal of all fluids and nutrition. My friend did not believe them. She spent many hours talking to her mother and realised, from the blinks and slight movement of her eyes, that her mother could not only understand every word that was said but was perfectly rational. Still the doctors did not believe it. One day, however, by means of blinks, the mother was able to say to my friend that if the doctor and a certain nurse wished to conduct a sexual liaison, they should please do it outside her room. That was duly relayed to the doctor. Only then did he realise that the lady in the bed had all her mental faculties, and she was treated quite differently from then on. The standard test for PVS had never, of course, been done—the doctors had relied, wrongly, on outward symptoms.
The other category of patients directly affected by the Bland judgment is the patient who has left advance instructions about what he wants to happen to him if he falls ill and cannot communicate. Such instructions, according to the GMC, should be treated as binding. Those who sign so-called living wills, asking that they are not to be resuscitated in the event of serious and potentially terminal illness, may not realise that they may also be forgoing their right to receive basic nutrition and hydration. They are delegating to doctors, irrevocably, a decision about whether or not their life is worth saving. If the doctor decides that it is not, not only medicines and other care, but also food 1426 and fluid, will be withdrawn. A person incapacitated by a stroke, or in a coma, might not be cared for tong enough to see whether he recovers.
Whether the Law Lords were right or wrong to decide that nutrition and hydration constitute medical treatment is in a sense neither here nor there; debating that question is rather like dancing on the head of a pin. The issue for us is whether food and water should be regarded as separate and distinct from conventional medical treatment and whether the right for every patient, however ill, to receive food and water should be safeguarded in law.
I spoke just now of a subtle shift in medical ethics, and I believe that that is what has happened since Bland. My noble friend has referred to some very disturbing cases involving deliberate acts of omission by clinicians—acts intended either explicitly or implicitly to hasten the deaths of patients. I myself have been made aware of others. Your Lordships may have seen the letter in Monday's edition of The Times from the Marchioness of Salisbury which draws attention to the practice of withdrawing feeding from stroke patients. But Lady Salisbury also refers to reports about patients who have been admitted to hospital with conditions that are not life threatening and who are then sedated and allowed to die from dehydration. There is, I believe, a point at which anecdotal reports become a body of evidence. In my view, that point has been reached. The question is what to do about it.
My noble friend's Bill proposes that we should place an absolute ban on the withdrawal or withholding of artificial nutrition and hydration if the purpose of so doing is to hasten or cause the death of the patient. Her succinct explanation of that choice of words amply illuminated her very principled position. I wonder, however, whether she would allow me to pose one or two questions on the phraseology she has used.
My noble friend referred in her speech to food and fluid being a human right. Listening to the impressive opinion of the QC whom she quoted, I would ask whether that is actually correct. The QC's opinion referred only to hydration. The noble Baroness, Lady Finlay, with her immense direct experience of hospice care, made it clear, as I understood her, that there are circumstances in which to administer nutrition by tube, perhaps to a terminally ill patient, was the cruellest possible thing one could do to that person; for example, if the patient's bodily system could no longer cope with digestion. The GMC guidance says that, for some patients, not taking food and fluid may be part of the natural dying process. We need to take note of that.
My noble friend said that nothing in her Bill would force a patient to have a tube in his nose or a PEG in his stomach if he does not want that. But what if he is unable to communicate his wishes and has left no advance instructions? It seems to me in those circumstances that the Bill might leave doctors with no choice but to continue PEG-feeding the patient literally ad nauseam even when that might be physically oppressive to him. I hope that I am wrong in that. My noble friend can doubtless correct it.
1427 My noble friend did state that nothing in the Bill would prevent the withdrawal or withholding of food and fluid from a patient who is dying and where the tubes would be intrusive and the risks excessive. Again, however, I would simply ask her to explain how the wording of the Bill allows for that qualification. If the Bill became law, a doctor who believed that the kindest thing he could do for a suffering and terminally ill patient would be to withdraw a feeding tube from a patient's stomach would surely be prohibited from doing so if by that act he caused or hastened the patient's death. Furthermore, I wonder whether a court could sanction it either.
My noble friend should not misunderstand me. I believe that she has brought a very important issue to the notice of the House. Nevertheless, I know that she will agree with me that the implications of the Bill as worded need to be thought through carefully. Life is sacred, but at the same time we should never forget that life has a natural end. I ask my noble friend, if I may, whether she does not agree that in desperate cases such as that of Bland where all quality of life and all hope have gone, the kindest and most humane course is indeed to recognise that life in all meaningful senses has ended and to cease striving officiously to keep the patient alive. I hope that when she replies to the debate my noble friend will be able to explain how her Bill would allow a court to take that humane decision. As I read it, I cannot see that it would be able to.
It is for that reason that, although I support and deeply respect the intentions behind the Bill, I believe that it is appropriate to take a step back. My noble friend may be able to provide me with reassurance on the questions I have asked but I am concerned that the Bill as it stands will not do. Whether it is capable of amendment is not for me to say or judge but, in giving it a Second Reading tonight and reflecting on the powerful contributions we have heard during the debate, we perhaps need to consider whether it might not be the law that is at fault but rather the practice. If that is so, the focus of our concern should rest on how the medical profession should guide itself in future and how the approach of individual doctors to these very difficult life and death decisions can be made consistent with the letter and spirit of such guidance. The voice of Parliament in that context is, I believe, indispensable for there is no doubt that the grave worries that my noble friend has articulated today are worries held by many of our fellow citizens. Those worries, one way or another, must be dispelled.
§ 10.6 p.m.
§ Baroness Andrews
My Lords, we have had a most profound debate. I say on behalf of all noble Lords who have spoken that we are grateful to the noble Baroness for giving us the opportunity to have such a debate which raises issues which concern life and death. For the reasons that many noble Lords have already mentioned it is right that we should have the opportunity to discuss these issues in a reasoned and dispassionate context. But having listened to the 1428 debate, I understand how difficult it is sometimes to be dispassionate when one is considering ethical issues of such a profound nature.
We have had an excellent debate. Noble Lords have covered medical, ethical and legal boundaries in relation to these very personal issues. We are discussing one of the most difficult and sensitive issues of medical practice. I hope that I may borrow the language used by the noble Baroness, Lady Finlay, when I say that these are decisions which are as agonising for the doctor to take as they are for the patient or their family to contemplate. Differing views are held on the subject, as was shown in the debate. That is clear from debates in Parliament over the past few years, from the response to the Government's consultation on Who Decides?which started in 1997, and from the concerns raised by the very difficult cases of Dianne Pretty, Ms B and Reginald Crew, which have been highlighted in the press and which all represent extremely difficult decisions. None of the decisions is more difficult than that of withholding artificial nutrition and hydration. The noble Baroness spoke with great feeling of distressing cases to which I shall return in a few moments. Those are essentially individual and personal cases. As the noble Earl, Lord Howe, said, the medical practice involved is something about which we should have grave concern.
I turn to the Bill. As a society we have a duty to provide care and support, to relieve pain and to alleviate symptoms for those who suffer chronic and terminal illness. But, above all, we have a duty to ensure that, however our law is framed, it is based on compassion for those who are suffering and those close to them.
The noble Earl, Lord Howe, spoke of the equal value of all human life. We surely all agree with that. I was disturbed by the statement of the noble Lord, Lord Swinfen, that there are some elderly people in our hospitals in whom medical staff have lost interest, and that there is a tendency to want to get them out of hospital in order to shorten waiting lists, however that is done. I hope sincerely that that is not a general opinion. I am sure that the NHS does not operate on those principles or in that way. It is right to put my response to that point on the record.
We welcome the opportunity for a debate on such complex and ethical issues. As the noble Baroness will appreciate, the normal role of the Government in relation to a Private Member's Bill, especially one which raises such profound issues of conscience, is to be neutral. The Bill anticipates a radical change in the law, so in my few minutes I want to set out the ethical and legal background to the current law and its full implications. I hope that that will help to provide a useful framework for further thoughts on the Bill.
As many noble Lords have said, the Government's current position on euthanasia—the intentional taking of life, albeit at the patient's request or for a merciful motive—is that it is unlawful. For a doctor to intervene actively to bring about a death is unlawful. Equally, a doctor who owes a duty of care to a patient and withdraws or withholds treatment without lawful 1429 excuse would commit an unlawful act. In so far as the Bill might be seen to restate what is already in our current law, it would seem unnecessary. The noble Lord, Lord Alton, anticipated that point.
There is, however, an important distinction in the current law between a deliberate intervention to end life and the omitting or withdrawing of treatment which has no curative or beneficial effect. It is that distinction which goes to the heart of the debate today. It rests on several fundamental ethical principles which have governed relationships between doctors and patients for many years. It is about the autonomy of patients and about their fundamental human right to have a say over what happens to their body and any treatment that they receive. Those are principles which, following the Tony Bland judgment in 1992 that has been referred to today, the courts have ruled should also apply to consideration of artificial sustenance as a form of medical treatment.
Let me set out the ethical framework to the current law. It is based on two fundamental principles, which are the right of the patient to refuse treatment and the duty of the doctor to act in the best interests of the patient. Both were referred to by the noble Baroness, Lady Finlay. There is also a major distinction in the law between patients who have the mental capacity to make their own decisions, and those who cannot. The noble Earl, Lord Howe, raised that matter. The distinctions have a long history in common law, and have been reinforced by the Human Rights Act. The Bill raises important questions about both the principles.
I shall deal with the consent principle first. We hold as a principle that the firm basis for any decision to give, withdraw or withhold treatment must be the right of the patient to consent to, or refuse, that treatment if he or she is capable of making that decision. The only exceptions are those defined in the Mental Health Act 1983. In the word of one of the judgments made in the Bland case, every person's body is "inviolate". A competent adult has the right to refuse a treatment even if that may lead to their death, and they may even exercise that right in order to bring about their own death, if that is what they want.
I want to emphasise the importance of that right to be free from unwanted medical interventions, which if forced on a patient can lead to claims for assault and battery. The right has been confirmed by the European Convention on Human Rights. I should say—a question was asked about it—that there is no obligation under the Human Rights Act to provide any form of treatment that is futile to the patient.
The second principle is that of the best interests of the patient. Our law says that no one may consent on behalf of another adult. If an adult lacks the capacity 10 consent to a treatment and there is no valid advance refusal, any decision about their medical treatment must be based on an assessment of the patient's best interests. That does not mean only their medical interests, but their quality of life, their relationship with their family and their spiritual welfare.
1430 Under current case law, a doctor has a duty to offer treatment that is in the patient's best interests and would benefit the patient. If he omits or fails to offer beneficial treatment to a patient, that is as unlawful as an attempt to kill a patient using a toxic drug.
At the same time, where the doctor determines that there is no benefit in medical intervention or treatment and such an intervention would not be in the patient's best interests, there is no legal justification for continuing that treatment and no duty to provide it. However, it is important to say in this context that the withdrawal of such treatment should take place only after discussion with the healthcare team and with those close to the patient to ensure that the doctor knows that the views of the patient are taken well into account.
I come to the point about food and drink being the staff—the basics—of life. I make it absolutely clear that where a patient is capable of taking nourishment, it must always be offered. The cases we have heard about of food being placed beyond a patient's reach or not offered in a way in which the patient can take it himself involve extremely bad practice.
There may be circumstances where the doctor's assessment of a patient's best interests may mean withdrawing or withholding treatment. Where that is the case, doctors and healthcare professionals are still under an obligation to make the patient as comfortable as possible, to provide the best possible care—the noble Baroness, Lady Finlay, discussed that—including palliative care in making patients comfortable. The BMA guidelines, which have been extensively referred to, although I shall not dwell on them, pay strict attention to that. There is considerable emphasis in the guidelines on making the patient comfortable, whether that involves relieving dryness of the throat or lips, or relieving pressure sores. Those are part of the normal duty of proper, decent quality care for patients.
Those two principles, "consent" and "best interests", are based fundamentally on the rights and wishes of the patients themselves. We all share that as our main concern. I stress the importance of those fundamental principles as a starting point.
I turn to some of the more specific issues raised by artificial nutrition and hydration. That is one of the most difficult areas in which such decisions are made. Artificial nutrition and hydration refers, according to the BMA definition—it is very specific—to those techniques that are used to bypass a pathology in the swallowing process, including, for example, the use of nasogastric tubes, as in the case of Tony Bland. It can also be referred to as technologically delivered feeding—the noble Lord. Lord Alton, mentioned that—which requires medical or nursing skills to administer.
We have discussed the tragic case of Tony Bland, who had sustained catastrophic and irreversible brain damage. The courts considered whether artificial nutrition and hydration are part of medical treatment and care or something entirely different. Their conclusion, based on—I quote the judgment—"overwhelming medical evidence", was that they constitute part of the medical 1431 treatment or care of the patient. Just as a ventilator is used to overcome a patient's difficulty in breathing, so, it was argued, artificial systems for delivering nutrition—in this case, a nasogastric tube—overcame difficulties in swallowing.
That means that the same principles apply legally to artificial nutrition and hydration as to other forms of medical treatment. In terms of the patient's interests, we heard from the noble Baroness, Lady Finlay, and the right reverend Prelate that the provision of artificial nutrition and hydration can be burdensome, whatever the method. I know from my own experience with patients with senile dementia that some forms of intervention can be particularly distressing. Patients often attempt to rip out tubes and to resist. The process is extremely distressing to patients and the family. The burden involved and whether or not it is of benefit to the patient, and therefore justified, is part of the doctor's assessment of a patient's best interests. The decision is not whether the life is worth while but whether that approach is what is good and best for the patient.
I realise that this subject raises particularly strong feelings. If we go back to the Select Committee on Medical Ethics of 1994, we see from the range of evidence presented how difficult it was for the committee to come to a judgment.
I also want to emphasise that the decision to withdraw artificial nutrition and hydration does not mean that all medical treatment should be withdrawn from a patient. Each treatment must be judged on its own merits. Much can be done to relieve suffering, particularly towards the end of life. But I stress again that doctors are still under an obligation to ensure that the patient is as comfortable as possible and they must give any care or other treatments that are in the best interests of the patient. I reiterate the point raised by the noble Earl concerning whether we are talking about law or practice when we refer to some of the issues and cases raised by the Bill.
I now turn to the Bill and shall consider in a little more detail some of the issues raised. Because we share a belief in the intrinsic value of human life and because we share the compassion which demands that we do not neglect the care of those who are dying, I believe it is extremely important to appreciate the radical nature of the change that the Bill would bring about. The noble Lord, Lord Tombs, described it as a simple and modest Bill. However, it would change the emphasis of the law from the rights and best interests of the patient to the "purpose" of the doctor and to what was in his or her mind in relation to the decision taken.
I shall be quite clear. The interpretation of a doctor's intention or intentions when making decisions in connection with the withholding or withdrawal of medical treatment is central to the way that the Bill is drafted. In contrast to the current emphasis in the law on consent, the Bill would make the doctor's purposes the test of lawfulness. That is why it has such important implications.
1432 Ethically, the Bill would overturn one of the fundamental tenets of medical ethics—the autonomy of the patient and his or her right to make a choice. In making that change, the Bill defines a "patient" as,a person suffering from mental or physical illness or debility".As drafted, crucially that does not distinguish between a patient with the capacity to take a decision about his treatment and a patient who is incapacitated. Not only would the Bill remove the possibility of withdrawing artificial nutrition and hydration from a patient who was not capable of making that decision; it would also mean that a competent patient would no longer have the right to refuse medical treatment in the form of artificial sustenance, whether at the time or through an advance refusal of treatment, if the result of that refusal would be his death. Where a competent patient had expressed such a wish and refused treatment, the Bill would make it unlawful for a doctor to follow the patient's wishes. In other words, by shifting the law to consideration of the doctor's purpose, the Bill would effectively prohibit a patient from refusing ANH. I shall return to that point later.
Perhaps I may illustrate the issue by referring to the recent case of Ms B. Ms B suffered a ruptured blood vessel and was paralysed. She spent a year in that condition, unable to move or breathe unaided, and her treatment included being maintained on a ventilator. It was her wish that that treatment should he withdrawn. The medical team considered that other options, such as rehabilitative treatment, should be pursued, and eventually the case came to court. The issue was essentially whether Ms B was able to give valid consent to the giving or withholding of treatment. The court decided that she was indeed capable of making a fully informed decision, and consequently her treatment was withdrawn by taking her off the ventilator. Sadly, but inevitably, she died peacefully on 29th April last year.
The central point that emerges from that case, and the matter of principle that it establishes, is that a competent adult has the right to consent or to decline medical treatment, even if the decision would result in his death. That position is well established in our current law. Any exception to such a right must be seriously justified.
In practical and medical terms, I now turn to the provisions of the Bill which concern intention and purpose.
Lord Carlile of Berriew
My Lords, I am grateful to the noble Baroness for giving way. I am afraid that I do not understand the point that she has been making. The Bill as drafted deals with the doctor's purpose, if we take the doctor as the example. If the patient makes the decision that the nutrition should be withdrawn, that is not the doctor's purpose; it is the patient's purpose. I suggest that plainly the noble Baroness has overlooked the word "his" in the first clause of the Bill.
§ Baroness Andrews
My Lords, the point I am making is that our current law—case law and common law—rests on patient consent. That right would be overturned by putting the prior emphasis on the intention of the 1433 doctor to take that decision. We shall pursue these issues in Committee if the Bill receives a Second Reading. As the noble Baroness, Lady Finlay, said, it would be a lawyer's charter.
On intention and purpose, we have had an interesting debate, with contributions from many sides of the House on the issue of purpose. The implication of the Bill is that the law should consider each and every purpose of the doctor in order to decide whether an action is unlawful. The problem is how to make that work in practice. A doctor can certainly state his or her main purpose in carrying out an action or taking a decision about a patient's treatment. That statement may be sufficient to explain what has been done and the law can judge whether or not that is the case. The Bill invites us to be sceptical and to scrutinise the motive or intent of the doctor. But how can we ever know if the doctor concerned had any other purpose or interest? How can he or she prove otherwise?
The right reverend Prelate gave us many examples of the difference between foresight and intention. 'The noble Baroness, Lady Finlay, described how difficult it is to predict the outcome of medicine. Where is the line between withdrawing artificial nutrition because the doctor judges that it is futile and a deliberate attempt to harm? What is the evidence that can be brought?
The long title of the Bill speaks of "intention". In criminal law, when juries are asked to consider "intent", factors they may be asked to take into account include the probability of the outcome and the extent to which that was appreciated by the defendant even if it were not their main intention. Therefore, if a doctor knew, as a virtual certainty, that withholding or withdrawing treatment, even at the patient's request, would result in the patient's death, the doctor could still be held to have positively intended the patient's death. I am not a lawyer, but I can see that we are entering something of a minefield.
Secondly, the Bill has other serious implications for the doctor concerned. The noble Baroness, Lady Finlay, spoke of it encouraging defensive medical practice. It would, in some circumstances, mean forcing a doctor to take a decision against his or her professional judgment and to continue with treatment knowing that it was unnecessarily burdensome and of no benefit to the patient. I refer to the speech made by the right reverend Prelate. It is a significant departure from the current position whereby a doctor cannot be obliged to provide treatment or care against his or her professional judgment. It would remove any flexibility in the clinical judgment. We need to think that through very carefully.
I turn to the issue of safeguards. I reiterate that I fully appreciate the intentions of the noble Baroness, Lady Knight, and her deep and compassionate concern to see that vulnerable people are protected. That is what the Bill intends to do and we appreciate the reasons for the shift in the law proposed by the noble Baroness. Like her, the Government are concerned to ensure that vulnerable people are protected. We have gone to great lengths to ensure transparency in how decisions are made regarding the treatment of people lacking the capacity to consent for themselves.
1434 As part of the Good Practice in Consent Initiative, the Department of Health has developed a series of guidance, consent forms and information leaflets on consent to examination or treatment. That sets out very clearly the obligation on the doctor to act in the best interests of a patient who lacks capacity. It also includes—this is significant—a form o n behalf of adults who are unable to consent to investigation or treatment to record the decision-making process in relation to their treatment. That includes an assessment of the patient's capacity and of their best interests, the reasons for any decisions taken about that person's medical treatment, and the involvement of the patient's family—an extremely important point. It is also designed to emphasise the importance of consent as a process throughout the treatment of the patient. Trusts have been asked to implement those forms. That has been in place since April 2002.
The BMA safeguards referred to by the noble Earl, Lord Howe, and the noble Baroness, Lady Finlay, also set out extra safeguards for decisions. We have heard about them. The guidance on this issue states that all proposals to withhold or withdraw ANH should he subject to formal clinical review by a senior clinician with experience of the condition from which the patient is suffering and who is not part of the treating team and can therefore look at the situation independently. All cases in which AN H has been withdrawn should also be available for clinical review.
We are fully in agreement that the law must provide adequate safeguards to ensure that such patients are given treatment which is of benefit to them. We have a duty to ensure that the law respects the wishes of a competent patient who does not want treatment. We also have, I believe, a duty to provide adequate safeguards against futile or unnecessarily burdensome intervention on a patient's body when he or she is incapacitated and at his or her most vulnerable.
Furthermore, I believe that we have a duty to support and protect the medical practitioners who are placed in the position of having to make very difficult and distressing decisions. We believe that the balance of the law, given the thought and care that has gone into the judgment over the past decade, protects the rights of the patient and the clinical autonomy of the doctors.
I conclude by saying that this is an extremely sensitive issue. All noble Lords who have spoken have addressed the matter in extremely sensitive and personal ways. We have to strike a compassionate and principled balance. These are issues that need broad and open public debate. For that reason, I thank the noble Baroness again for creating that opportunity and I thank all noble Lords who have spoken.
§ 10.31 p.m.
§ Baroness Knight of Collingtree
My Lords, at this hour I shall, I am sure, do what all noble Lords wish, which is to be as brief as possible. But there are one or two important points that need to be made.
I express my great gratitude to noble Lords who have taken the trouble to stay until this late hour and join in a most interesting, wide-ranging and, I believe, 1435 extremely important debate. I am particularly grateful to the noble Lord, Lord Carlile, for the wisdom of the legal judgment he has given tonight. The point of the noble Lord, Lord Brennan, must be stressed again. The problem began when the judgment with regard to Bland was made, and the very fact that it was made for a special case. Thos who made the ruling pointed out that it was a special case and not intended to change the way medical treatment is meted out. That is a most crucial point. We have indeed gone downhill since.
I say to the right reverend Prelate the Bishop of Oxford that there is nothing in the Bill—and I said this in my speech and the noble Lord, Lord Alton, stressed it again—that means that a treatment which is judged medically to be burdensome, distressful or risky, such as occasionally putting in the peg or the other method of feeding through the nose, has to be carried through. I would also stress that to the noble Baroness, Lady Andrews.
My noble friend Lord Howe put three questions to me. First, the Bill was most carefully drafted, not by me because I am not trained in parliamentary drafting. It was drafted by people who know their business and is very carefully worded. For those who accuse me of not including oxygen and so on, I can assure them that—and I have had some experience of Private Members' Bills, having had five of them passed during my parliamentary lifetime—if any Bill put forward by a Back-Bench Member either of this House or of another place is lengthy, it has no hope of ever becoming law. So the crucial point is that one must be brief. That is one reason why the Bill is brief.
Secondly, I must say to my noble friend Lord Howe that the whole burden of the Bill is in the words:it shall be unlawful … if his purpose in doing so is to hasten or otherwise cause the death of the patient".I should have thought that such things as patients' notes, for instance, would make it plain either that the treatment was invasive, burdensome, or whatever, or that there was a medical reason that could be clearly stated.
In the cases that I have cited—which are all recent and real—that was not the case. I mentioned that on two occasions it was felt to be a wretched nuisance that the patient's relative or friend interfered and asked 1436 that the patient should be given food and liquid. If the purpose is to avoid a patient suffering, that will not be illegal—I stress that.
Thirdly, I was asked: what if the patient cannot speak or is mentally handicapped? I should have thought that some reference should be made to the family. That seems reasonable. But then it is perfectly sensible to recognise that on occasion there is no family and it is not possible to ask anyone else. Then, of course, it must be the doctor's responsibility to weigh up the suffering involved in keeping a patient alive and in starving him to death. That is fairly straightforward.
Nothing in the Bill—I speak directly to the Minister—denies the patient's right to say what he or she may want. There is not a word that suggests that the matter be handed over to the doctor, with the patient having no right. I stress again that it is surely not so difficult to judge the doctor's intentions because it must be clearly written down and explained why a procedure was or was not adopted.
As I have said, the wording of the Bill is not mine but I believe that it is legally correct and addresses an issue that must be addressed. If I were sick and in hospital, I should love to have the Minister as my nurse because she exhibits enormous gentle care and I am sure that she would carry that through in any professional capacity when looking after a patient.
What distresses me is that cases such as those that I and other noble Lords have described arise all the time but nothing stops them. It is all very well to have the opinion that we do not like it happening, but who will stop it if the Bill does not? There is such great distress and suffering. We are in direct contravention of an international law. Those who have criticised the Bill—and criticism is fair and expected in a debate—have in no way addressed that point. Surely we care about whether we meet our obligations with regard to human rights. Legal rights and obligations are blurred and uncertain.
Listening to the noble Lord, Lord Carlile, in particular, I cannot possibly do other than request that the House give the Bill a Second Reading.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
§ House adjourned at twenty minutes before eleven o'clock.