HL Deb 20 May 2003 vol 648 cc768-84

7.37 p.m.

Baroness Knight of Collingtree

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

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

On Question, Motion agreed to.

House in Committee accordingly.

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

Clause 1 [Offence]:

Baroness Knight of Collingtree

moved Amendment No. I: Page 1, line 3, leave out "his" and insert "the The noble Baroness said: This is a manuscript amendment because, as will clearly be seen, I felt that the word "the" would be better at this point than the word "his". It does not really involve any significant changes, but it tidies matters up. I beg to move.

Earl Howe

If my noble friend will allow, I think that we need to return to an issue that we debated at Second Reading, which I am not sure she fully answered at the time. The test as to whether a doctor, or anyone else, is guilty of an offence under the clause if he withdraws or withholds sustenance from a patient is whether the purpose of doing so was to hasten or otherwise cause the death of the patient. The question that arises from that is simple: how would it be possible to establish beyond reasonable doubt in most cases that someone who withdrew a feeding tube intended or did not intend to kill the patient?

When she introduced the Bill, my noble friend made clear that there were circumstances in which the withdrawal of artificial nutrition and hydration would be permissible. She said that it would be permissible if the treatment were burdensome, distressful, or risky. It would not be permissible if, as the Bill says, the person's purpose was to hasten or cause death. I hope that I am right in the way that I have summarised my noble friend's remarks.

If I am correct in my summary, it seems to me that if a doctor is not to be put in a potentially impossible position there is only one policy that he can reasonably adopt under this Bill; that is, to resist the temptation to withdraw or to withhold sustenance from most, if not all, terminally ill patients under his care. He may be the most caring and conscientious doctor in the world and he may record his reasons meticulously in the patient's records, but how can he ever demonstrate conclusively that the act of withdrawing or withholding sustenance was based on a professional judgment that the alternative would be overly burdensome? He might record this judgment in his notes, but would that be enough to protect him? If withholding sustenance had the effect of hastening the patient's death, how could the doctor show that this was not his purpose, or part of his purpose?

It seems to me that in many situations involving terminally ill patients decisions that are taken, and the reasons for those decisions, are multi-layered and quite complex. In a case where a doctor has decided for the good of his terminally-ill patient to withdraw sustenance but, in so doing, has hastened the patient's death, the relatives of the patient who take issue with his decision could serve up that doctor to the police on a plate. All of a sudden he could find himself on a criminal charge, with little except his record-keeping to back him up. The aggrieved relatives might well be able to present a case contrary to that of the doctor which a court might find persuasive.

The noble Baroness, Lady Andrews, alluded to that possibility when she spoke at Second Reading of the acute difficulty in law of separating out the different strands of someone's intentions. It would not be enough for the doctor to say that, while he had foreseen death as a consequence of withholding nutrition, he had not intended death. He would have to do a lot better than that. Indeed, he would often have no certainty at all that he could prove his innocence of the offence, as defined in Clause 1. As the Minister said at Second Reading: Therefore, if a doctor knew, as a virtual certainty, that withholding or withdrawing treatment … would result in the patient's death, the doctor could still be held to have positively intended the patient's death".—[Official Report. 12/3/03; col. 1433.] That is the acute difficulty posed by the phraseology of my noble friend's Bill. To put doctors constantly on the backfoot in this way would lead to one thing, and one thing only; namely, defensive medicine. And not just defensive medicine, but bad medicine—in other words, treatment that actually causes distress to patients far beyond any possible benefit that they may gain from it. That is why the noble Baroness, Lady Andrews, was right to say that the shift in the law that the Bill would usher in. is of fundamental importance.

The current test of criminality in the absence of the patient's ascertainable wishes rests on issues which, though not matters of fact, nevertheless are capable of attracting a solid level of agreement among reasonable people; namely, what are the best interests of the patient and the degree to which the burdensomeness of treatment is outweighed, or not, by the patient's prospects for improvement or recovery? Agreement on those matters rests in the first instance on subjective judgment, but, ultimately, on demonstrable facts.

The same cannot be said when one tries to prove someone's intention. My intention in doing something is a matter of fact, but it is a fact that is, in practice, unverifiable. I can try to adduce evidence to back up my assertion that I acted with this or that intention and sometimes I may succeed, but often the evidence will point in more than one direction. Often, as the Minister indicated, I may not be able to disprove that I had more than one intention when I acted in a certain way. Allowing the test of criminality to rest solely on establishing intention is, I suggest, unsatisfactory in a context of this kind when there is a better course open to us—namely, a test that is patient centred rather than doctor centred.

The law currently relies on the test of what is in a patient's best interests. But that is also the basis on which the doctor himself takes his clinical decision. To ask, or expect, a doctor to take a decision on the basis of what he intends by his actions is, I suggest, the wrong way to proceed. It would mean that the incompetent but well-meaning doctor, who withdrew or withheld artificial sustenance when he clearly should not have done, could have a defence in law under this Bill. I suggest that that would be highly unsatisfactory.

Members of the Committee need to hear from my noble friend why she believes that the test of purpose, rather than another more patient-centred test, is the right way to proceed. For the reasons that I have outlined, I am very doubtful that the Bill, phrased in this way, will achieve the result that I believe most of us want to achieve, which is to allow doctors, with proper protocols and safeguards, to make informed clinical decisions on behalf of their terminally ill patients; and be held accountable for those decisions according to well-defined and well-understood rules.

7.45 p.m.

Baroness Knight of Collingtree

I am happy to examine more carefully the question of a legal test to determine what "purpose" means in this context. I have been assured by experienced barristers, one of whom helped with the wording of the Bill, that the word "purpose" is well used and well recognised by juries. "Purpose" is a commonsense word. Like many similar concepts, it is frequently used in criminal law and. I understand, pretty well every day in trials.

I remind the Committee of the words of Mr Andrew Hunter MP that I quoted previously. When he discovered to his horror that his sick wife was being given neither food nor water in hospital he said that he found it hard to avoid the conclusion that the hospital was deliberately accelerating his wife's death in order to increase the throughput of patients. It is well understood that beds are at a premium; indeed, at this very moment, many people who need hospital care are unable to go into hospital because there is simply not a bed available for them. I certainly understand the dilemma.

It is perfectly reasonable to ask: what other purpose could there possibly be? If there was a good reason for such actions, I am simply asking by way of my amendments—which I shall deal with shortly—that such reasons be noted. That seems to me to be perfectly fair. Giving sustenance in the case of Mrs Hunter was causing no pain; there was no difficulty about feeding her. Indeed, the contrary was true: she was in terrible difficulty because she was not being fed. It does not take much imagination to recognise that death by starvation, or dying of thirst, must both be a truly ghastly experience. The patient had not asked to be denied food, nor had her husband made such a request.

If there was another purpose, it should, as my amendment advises, be clearly written down. When a tragedy happens and a patient dies for reasons that I described—for example, through thirst, which is a dreadful way to die—it is not unreasonable for people to complain about that and try to ascertain the purpose behind it. The BMA has recognised that the word "purpose" is perfectly reasonable in this context. It says: Treatment, including artificial nutrition and hydration, may be withdrawn if the purpose of so doing is to withdraw treatment which is not able to provide a net benefit to that patient in terms of maintaining or restoring the patient's health to a level he or she would find acceptable". I am bound to say, en passant, that that is an extraordinary statement. In other words, the purpose can easily be to withdraw treatment unless food will make the patient better. I quoted the statement from the BMA to show my noble friend that the word "purpose" is fully understood in this context, and that it is certainly not unreasonable to include it in this way. Furthermore, the word was included on the basis of advice from a barrister. The BMA has not complained about the word. I assure my noble friend that, until his intervention, no concern was expressed to me about whether purpose could properly be established.

We are not dealing with a case in law. We are trying to get over the terrible difficulty that has arisen since the Bland judgment. We have all heard and read the Law Lords' remarks that it must not be possible to use the impetus of the Bland judgment to justify not giving people the sustenance and liquid that they need. I assure the Committee that I am not trying to be awkward or difficult. I am merely trying to ensure that decent, honourable doctors in hospitals are given clear guidance as to what this Parliament thinks they should do in such cases.

Baroness Finlay of Llandaff

I wish to clarify a point. We seem to be debating Amendment No. 2 as well as Amendment No. I. I wish to address the issue of purpose. I understood Amendment No. 1 to be a grammatical correction, changing "his" to "the" to establish that the doctor's purpose, not the patient's purpose, was referred to. I wish to comment on purpose. but I do not want to do so now if it is the wrong time.

Baroness Knight of Collingtree

Since we arc discussing purpose, the noble Baroness would be perfectly in order to make her remarks now. But we are not discussing Amendment No. 2 at present.

Baroness Finlay of Llandaff

Thank you. I feel quite strongly that we need to look at purpose. At Second Reading, the noble Lord, Lord Carlile, stated that the intention would be clear from the case notes. I contest that. In clinical practice, I do not see clinicians write. "Stop fluids to hasten death", "Stop feeding, let patient die" or even "Stop feeding, patient about to die". Every day I see clinicians write such notes as "Patient dying, take drip down", "Further attempts at insertion of drip futile" or "Nasogastric tube futile".

I can also envisage an angry relative, as the noble Earl, Lord Howe, mentioned, who has not come to terms with the state of a patient clinically, or a member of staff who wants to be hyper-critical of another for some personal reason, seizing on such an entry and claiming that the clinician acted illegally. I do not see how a clinician could defend himself or herself against an accusation of purpose. There is no way to prove that a patient's death would have been delayed, even by one minute, if a drip had been put up. The case then becomes a lawyer's dream and a clinician's nightmare.

It is currently against the law to plan to and then to bring forward in time a person's death. Yet the Bill seeks to go beyond that bald statement. It is important to clarify some of the complexities of clinical decisions. This Bill will not and cannot address bad care. Bad care is not given with the express purpose of causing death, even though it will often do so, and good care may postpone death. But it is worth remembering that sometimes good, compassionate carers will accept death and avoid torturing patients with futile interventions.

Much has been said about the Bland judgment. As a practising clinician, the Bland judgment has forced clinicians to be clearer in their thinking and decision-making over the withdrawing or withholding of intervention. I have seen the situation from both sides. As a clinician, I see the other doctors and nurses around me become clearer in deciding whether they think an intervention will be burdensome with no benefits, whether it will be risky with little benefit, or whether the benefits will outweigh those. But clinical decisions are not absolutes.

This weekend I have tragically been on the receiving end of care, with someone very close to our family in intensive care. The decision-making was impeccable. Everything was done with the intention to prolong life. That was considered and continued even until it was decided to look to establish whether there was brain death. It was when brain death was established that the intervention ceased. Intervention ceased after the death. The hospital staff did not bring forward the death by one second.

That is the sort of clinical decision-making that I now see routinely in hospitals. People are clear about not burdening patients. I do not want a return to the days of someone struggling to put a drip on a patient who is clearly dying, making a fourth, fifth or sixth attempt to get a line in when no veins are available. I do not want to see people rushing patients who are clearly dying down to X-ray on trolleys in an attempt to insert a gastrostomy tube because they are frightened that, if they do not do that, someone will accuse them that their purpose was somehow to bring forward the patient's death. My concern is that purpose will not be proven, but it leaves doctors and, to some extent, nurses open to what may well be false accusations. Also it does not address the problems of bad and inadequate care that were so eloquently alluded to—sadly, at some times—during this debate.

Baroness Andrews

The noble Earl expressed the central dilemma of the Bill. At Second Reading, I discussed at some length the dilemma as the Government saw it. I certainly do not want to repeat my remarks. The fact that there have been several different interpretations of the amendment from different sides of the Committee suggests that there is an element of confusion. It might add to uncertainty if the amendment stays where it is.

I reiterate that I am not sure that by changing "his" to "the" we address the central dilemma of the Bill. As other Committee Members have said, in current law and practice, if something is done to a person in the knowledge that it will cause their death, the law will treat the perpetrator as having intended to cause death. It is clear that death is always a certainty if nutrition and hydration are withdrawn and if that withdrawal is maintained. The person who withdraws or withholds sustenance will almost certainly be treated in law as having intended to cause the patient's death, no matter what other factors have come into play. Committee Members have been saying that very eloquently today. The Bill allows no room for judgment as to the relative benefit to the patient of providing sustenance, nor does it allow room for any consideration of the patient's best interests. So the dilemma is not resolved whether the Bill refers to "his purpose" or "the purpose".

I appreciate that the noble Baroness was very clear at Second Reading that it was not her aim to prevent the person responsible for the care of the patient from withholding or withdrawing sustenance where it is appropriate or where the patient refuses. I accept that she has a later amendment which aims to clarify that point. However, when we come to that amendment I shall have to express further reservations and make further points. The dilemma that we have been exploring is not resolved by changing "his purpose" to "the purpose". I would counsel against introducing any additional uncertainty into what is a very complex area of medical and legal ethics.

8 p.m.

Baroness Knight of Collingtree

I am happy to look at this whole question for Report. I do not want any confusion. I do not think that changing "his" to "the" has increased any doubt or puzzlement on this matter. But if it has, I shall look at it again. I wonder if I may—

Lord Clement-Jones

I think there may be some semi-colour confusion here. The problem is not the use of the word "purpose"; it is that this clause, in a sense, is the wrong way round. The noble Baroness read out the BMA guidance but it seems that she did not take the full sense of it. Basically, the BMA said that treatment, including artificial nutrition and hydration, may be withdrawn if the purpose—it uses the word "purpose" quite rightly—of doing so is to withdraw treatment which is not able to provide a net benefit to that patient in terms of maintaining or restoring the patient's health to a level he or she should would find acceptable.

It seems to me therefore that the noble Baroness's amendment is drafted entirely the wrong way around. What it would do is criminalise a whole cohort of doctors because it does not take into account that the purpose is to provide a net benefit to the patient. That is the point, but it completely escapes because of the way it is drafted.

Baroness Knight of Collingtree

I can only repeat that I shall certainly look at what has been said with great care before Report stage. While I am on my feet, I am sure that your Lordships will join me in extending sympathy to the noble Baroness, Lady Finlay, for what has clearly been a very traumatic experience during the past day or so. I am sure that we all feel sorrow about that.

While I will look at the matter again, I should like to add that I do not understand why, if the BMA is quite clear as to what the word "purpose" means, I am not. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Knight of Collingtree

moved Amendment No. 2: Page 1, line 4, at end insert— ( ) If the consultant in charge reaches a decision to withhold or withdraw sustenance, he must record the reasons for so doing in the patient's notes. The noble Baroness said: This amendment is inserted to meet comments at Second Reading and also because the BMA's guidance advises that details should be clearly recorded in the patient's notes; that is, when, why and by whom the decision was made to withhold sustenance. The BMA itself says that. Therefore, surely there can be no objection to my wishing it to be clearly stated in the Bill, because guidance is not law. No aggrieved relative has ever mentioned any written record of why the death decision was made, and advice and guidance, we all know, is very often ignored.

It is very different indeed to advise that such and such a procedure should be adopted and to ensure that it is so adopted by a law. If it is law, and not just guidance, notes will be carefully made and will be available for scrutiny. I think that should help doctors a great deal. That is probably why they themselves were anxious for it to happen. Furthermore, it would ensure that doctors had thought extra carefully about exactly what they were doing and why. I cannot see why there should be any objection to the amendment which seeks only to do what the BMA desires. I beg to move.

Baroness Finlay of Llandaff

I am most grateful to the noble Baroness, Lady Knight of Collingtree, for her kind words of sympathy. I really appreciate that. I should like to comment on the way decisions are recorded in the patient's notes. It is currently practice that everything one does must be recorded in the case notes. The reality is that doctors recording clinical decisions are not lawyers. However meticulously matters are recorded in the case notes, it may be possible, and often is possible, to misinterpret them or question them, or occasionally really tear them apart because the wording has not been adequate.

A doctor under a great deal of pressure with a lot of patients taking a lot of clinical decisions will write briefly in the notes and will use short phrases. He or she will not write long hand. Sadly, there are not enough medical secretaries within the NHS for every doctor to have a Dictaphone and be able to dictate in full everything that should go in the records. If that was provided, with a secretary to type the notes up immediately, we might be able to have a full explanation of the thought processes of the doctor. Currently, what is recorded in the notes is the conclusion that the doctor has come to and the key pointers on the way which sign how that decision has been made.

At present, I am unaware of any guidance which does anything other than say, "You must record everything you do in the case notes as fully as you can". That is drummed into every doctor and every nurse at all stages. They already know that if anything is in doubt, they must sit down and write everything out in full. I am not sure that putting such a direction in the Bill will do anything other than reinforce good practice. It might allow something to be done about the practitioner who does not keep adequate case records generally. But I fear that the way the case records are written and the resources available to doctors will not allow them to defend themselves against a malicious accusation that they have brought forward someone's death.

Lord Clement-Jones

Briefly, I should like to follow the noble Baroness, Lady Finlay, in agreeing with her. I think that this proposal would detract from good practice. Clearly, this is a fairly narrow provision in terms of recording the reasons for decisions in the patient's notes. The GMC' guidance is much broader and is followed by clinicians. It states: You must ensure that decisions arc properly documented, including the relevant clinical findings; details of discussions with the patient, health care team, or others involved in decision making; details of treatment given with any agreed review dates; and outcomes of treatment … You should record the information at the time of, or soon after, the events described. The record should be legible, clear, accurate and unambiguous", and so on and so forth. It is a broadly written GMC guideline which is admirable in its content. The provisions in the Bill certainly do not provide that level of detail. In those circumstances, I believe that the guideline is vastly superior to the amendment.

Baroness Park of Monmouth

I am sorry that I was not able to be present at the Second Reading debate, but I have read it very carefully. I speak as a potential victim because I am about to go into hospital.

I entirely take the points made by the noble Baroness, Lady Finlay, but it seems to me that it is not fully realised by the public that it is possible for you to be starved to death and to have water kept from you. It may he done for perfectly respectable clinical reasons, but you do not expect it.

1 have signed a power of attorney which states that I do not wish to be officiously kept alive. I had in mind that someone would pull out a pipe and I would be dead. That would be fine. But I did not have in mind that I could be perfectly properly and legally left to die of starvation and thirst.

The public need to be reassured about this but I do not know how that can be done. I understand the difficulty but a very real fear needs to be allayed. I do not know how.

Earl Howe

I have a great deal of sympathy with what the noble Lord, Lord Clement-Jones, said. The essential question with regard to the amendment is what value is added by putting on the face of the Bill a requirement of this kind?

Perhaps I may ask my noble friend a couple of supplementary questions. First, why does the amendment refer to a consultant when Clause 1(1) refers to any person responsible for the care of a patient? Secondly, what sanctions does my noble friend envisage for any consultant who fails to record his reasons in the way referred to in the amendment? Will it be an offence in its own right?

Lord Brennan

I invite the Committee in considering the Bill not to confuse a semantic analysis of the amendments with the objective behind them. I am sure that my interpretation of the noble Baroness's amendment is correct when I assume that she means that if a doctor—whether it be a consultant or the doctor in charge is a semantic matter for me—the person in charge, takes a decision which plays a substantial part in the death of a patient, the public interest, let alone the interest of the family and those nearest to the deceased, would expect there to be a record of the reasons for that action.

It is not bureaucratic. It merely seeks to allow there to be invested into the medical procedure at this grave point in a person's existence a medical explanation, in whatever brief form training in medical schools can produce. Although pressures of work may be extreme, I cannot imagine, even in a hospice, that they are so extreme as to prevent a medical person at some stage in the day or so after such an event making an adequate note, albeit brief.

In my own experience of cases in the past, it is not the existence of notes which leads to malicious complaints and grave dissatisfaction; it is the absence of notes which immediately creates wrongful inferences which may have nothing to do with reality. I cannot imagine any other walk of life where we would not expect a serious decision to be recorded at or near to the time it was made so that others can determine why it was reached. Why should medicine be different when we are talking about a point near death?

The Lord Bishop of Oxford

Would not the noble Lord, Lord Brennan, agree that it is proper medical practice to make notes, as the noble Baroness, Lady Finlay, has pointed out? If notes are not made, the professional ethics, the ethos of the medical profession, have to be looked at. But the GMC has made it quite clear that it is standard practice for notes to be made—sometimes quite simple, straightforward notes if the case is straightforward; sometimes more complex notes if a more complex decision is to be made—and it is difficult to see what the law can add to proper medical ethics and medical practice.

If the law does come into this, as has already been emphasised by a number of noble Lords, it might create a different kind of environment for the doctors who have to make these very difficult decisions.

Lord St John of Fawsley

There has not been a single substantive reason produced against the amendment. Even the noble Baroness, Lady Finlay, said that it would reinforce best practice. If that is so, what is the possible objection to it? It is not as though the relevant law is being introduced here for the first time; the law is there anyhow. If there is a breach of the law, action will be taken. As I say, the amendment reinforces best practice and reassures people who are anxious. It seems to me that as no substantive objection has been produced, we should support the amendment.

8.15 p.m.

Baroness Andrews

The noble Earl referred to an inconsistency. One of the problems with the amendment is that it refers to "the consultant in charge" while the general offence in the Bill relates to, any person responsible for the care of a patient". That description could cover any member of the medical team, including the nursing staff. I have a question for the noble Baroness. Does she intend that any member of the medical team or a consultant only would be required under the Bill to record the reasons for a decision to withhold or withdraw sustenance? Cases could arise where the person responsible for the care of the patient is held to have committed an offence. That person would have to rely for evidence on a record of the reasons for the decision made by another person who might have been less involved in the actual decision. If the amendment assumes that the consultant alone will reach a decision on whether to withhold or withdraw sustenance, the noble Baroness needs to bear in mind that that contradicts the current policy set out in guidance that a doctor should reach that decision in discussion with the healthcare team and those close to the patient. Although I appreciate the intention behind the amendment, there is a problem of inconsistency with it.

Lord Alton of Liverpool

I support the amendment that the noble Baroness, Lady Knight of Collingtree, laid before the Committee. However, I think that she will want to clarify the point that the Minister has just made. The purpose of the amendment is simply to provide a record and not to dilute in any way the consultation that should take place between a consultant and other doctors before reaching the decisions that we are discussing.

I refer to the background to the amendment. At Second Reading, the right reverend Prelate the Bishop of Oxford mentioned the case of his aunt. He argued strongly then that nothing should be done in the Bill to force a doctor or nurse to go to heroic lengths, if you like, to keep someone alive who would otherwise die. My noble friend Lady Finlay of Llandaff similarly said that we would indulge in defensive medicine—a point made by the noble Earl earlier—if a doctor could not prove his or her reason for having taken a particular course of action. I believe that what the noble Baroness is trying to do in the amendment is to address the legitimate concerns that were raised at Second Reading and to provide some form of protection for a doctor in such circumstances.

I remind the Committee that during that debate we heard from the noble Lord, Lord Carlile of Berriew, a very eminent QC. He said that no jury would have any difficulty whatever in knowing a doctor's motives provided the relevant records had been kept. The noble Lord, Lord Brennan, also made that point this evening. As the noble Lord, Lord Clement-Jones, said, even though the GMC guidelines require far more detail to be provided, the amendment would simply place on the face of the Bill a requirement to keep a written record. Therefore, it would not be a case of there being no written record as there would be a requirement to keep a written record. There is nothing in the Bill to stop a doctor from going to the lengths laid down in the GMC guidelines.

None of us wants to see officious legislation directed at doctors or nurses which makes prosecution more probable or likely. None of us wants to see doctors or nurses placed before the courts. I do not believe that the common sense of the Director of Public Prosecutions or of the police in such circumstances would allow that to occur. However, we are well aware that since 1993 and the Bland judgment the very concerns that, in her usual forensic way, the noble Baroness, Lady Park of Monmouth, pointed us towards, have become real and legitimate; that is, one can go into a hospital fearing that one could be starved to death. I hope that the noble Baroness will remain in your Lordships' House for many years to come to make the kind of contributions that we have heard this evening and that the course of care that she is about to undergo will be highly successful. But there is a real and legitimate worry here. It was aired at Second Reading. I believe that the amendment is a real attempt to address those concerns. I hope that it will be supported.

Baroness Knight of Collingtree


Baroness Masham of Ilton

Before the noble Baroness sums up, I should like to add a few words. Since the previous stage of the Bill, the young daughter of a friend of ours died in hospital. She had cancer. In the last stages she could not swallow but her mother sat by her bed and sprayed her mouth with water, keeping her comfortable. In the end, with her friends around her, she died. That is a natural way of dying, and it is very easy for a doctor to write in his notes that the patient stopped eating because she could not swallow. There is no problem there. Sometimes, people try to make things too difficult and complex. It is not necessary to have secretaries to write up the notes. Doctors—if we can read their writing, which sometimes has to be improved—can easily write the simple truth down.

I agree with the noble Baroness, Lady Park. It is now vital that people have reassurance that patients going into hospital will be protected and not starved. People are worried. I have had hundreds of faxes and letters today with signatures; they have been rather busy next door. We must do something. It is our duty in Parliament to protect people when they feel that they need protection. The House is very good at getting Bills right if they are not quite right. The noble Baroness, Lady Knight, is willing to take everyone's concerns on board, especially the Minister's, so I hope that we can get this Bill right.

Lord Joffe

If one records something in legislation, it is true that it will reinforce what the guidelines and general medical practice lay down. However, it is very dangerous to get into a mode of over-legislation. The guidelines run to 22 pages. It could be argued that most of those guidelines should be part of legislation. It is now normal practice for doctors to record their reasons. Once there is provision for something. there is no need to bring in legislation to confirm what is already happening.

Lord Tombs

We are dealing with a very sensitive area, that of the relationship between the doctor and the seriously ill patient. We have to be very careful how we tread. The debate has taken a course that I regret. I remind Members of the Committee that the Bill is entitled Patients' Protection Bill, not doctors' protection Bill. It is patients with whom we should be concerned today. That does not mean that I want to make life more difficult for the doctors. We have to deal with them, and allow them to do a very difficult and sensitive task.

It is not at all unusual in life and in criminal law to have to prove that one has acted properly. It happens in driving motor cars, building bridges and all sorts of activities. I see no reason why doctors, with their particularly sensitive operation, should be exempt from that. Doctors have to take the same precautions in showing that they are acting reasonably, professionally and responsibly as other professionals in life today. I make the plea that we think about the vulnerable patient—the passive recipient—and a little less about the professional who has a duty to discharge.

Baroness Knight of Collingtree

I am most grateful for what we have heard. Many comments made by Members of the Committee related clearly to the questions asked. What troubled me most in the speech of the noble Baroness, Lady Finlay, was that she explained that the rule was there but was not adhered to. She said that it was not possible to adhere to it, because there were not enough secretaries. I do not think that I am wrong; I was listening.

Baroness Finlay of Llandaff

It is standard practice to keep medical records. In fact, doctors have been struck off for failing to keep adequate clinical records. The difficulty I have with having the provision on the face of the Bill is that it will become a charter for lawyers to argue over the minutiae of the wording and infer a purpose which is not there.

Many complaints are made—sadly, the majority are justified. Sometimes malicious complaints are made and people will try to drive a coach and horses through wording, even when someone has recorded what he intended and why he intended it. The written records are made in note form, and are not able to be made in full sentences using legal language which will ensure that there is no loophole anyone can get through. That is the perspective from which I approach this issue.

Baroness Knight of Collingtree

I must strongly disagree with what has been said. I do not believe for one moment that there has been any suggestion that all the notes must be in legalese. We all understand that doctors are not lawyers. None the less, doctors are perfectly capable of placing their reasons for their actions clearly and unequivocally.

It was true that the noble Baroness, Lady Finlay, told the Committee that, rule or no rule, the process was not being carried out. I will not concern myself with the reason, but it is important to recognise that we are trying to defend and help patients who are increasingly frightened to go into hospital. Let us not debate the matter; that is happening.

As I said when I moved the amendment, it should be the law that such a statement must be made clearly. I say to my noble friend Lord Howe that dying is an important matter and a consultant will be in charge. A night nurse will not be given charge of the patient—we shall turn to another point about that later.

I am anxious that the records should be clear, specific and understandable. I cannot believe that this House believes that an amendment such as the one I move is unreasonable. I wish to test the opinion of the Committee.

8.27 p.m.

The Deputy Chairman of Committees (The Countess of Mar)

The Question is that Amendment No. 2 be agreed to. As many as are of that opinion will say "Content"; to the contrary, "Not-Content". Clear the Bar.

Division Called.

Tellers for the "Not-Contents" have not been appointed pursuant to Standing Order 54. A Division therefore cannot take place, and I declare that the "Contents" have it.

Amendment agreed to.

Lord Swinfen

moved Amendment No. 3: Page 1, line 8, leave out "or" and insert "and The noble Lord said: Amendment No. 3 is purely to clarify that sustenance means both nutrition and hydration and not one or the other. I beg to move.

On Question. amendment agreed to.

Baroness Knight of Collingtree

moved Amendment No. 4: Page 1, line 9, at end insert— (3) No offence shall be committed under subsection (1) if the patient refuses sustenance. The noble Baroness said: I believe most strongly that a doctor has a duty to honour the wishes of every one of his patients. This is not Nazi Germany. Clearly it is an offence to treat a patient against his or her will. I tabled this amendment in response to the fear expressed to me by some doctors that they may be in trouble under the Bill if they withdraw artificial feeding when a patient has said that he did not want a peg in his stomach or a tube in his nose. A doctor would have a perfect defence in those circumstances. He could and should put in his notes relating to the case his clear and entirely reasonable reason for halting artificial feeding.

I believe that it is extremely important to recognise that we must not treat patients in any way against their will. I am firmly of the opinion that there is no easy way to say that sometimes it would be possible to do that and still be ethical. In a humane and Christian country we cannot contemplate treating patients in a way that they have specifically said they do not want to be treated.

When I sought to table this amendment I hoped that Members would recall what was said at Second Reading and agree that this was virtually asked for. Where a patient refuses sustenance he should not be forced to have it. That is simply what the amendment says and I hope that it will not be opposed. I beg to move.

Lord Alton of Liverpool

I support the amendment that the noble Baroness, Lady Knight of Collingtree, has just moved.

At Second Reading, the right reverend Prelate the Bishop of Oxford and my noble friend Lady Finlay of Llandaff spoke of the position of patients who might not want to be given treatment that would keep them alive against their wishes. The noble Baroness, Lady Knight of Collingtree, made clear her intentions at Second Reading, but I am glad that she has moved the amendment. We debated the issue of patient consent or refusal at some length.

At Second Reading, my noble friend Lady Finlay of Llandaff expressed concern that the Bill failed to acknowledge the position of the patient who considers the possible benefits of the provision of sustenance to he outweighed by the burdens. She said: 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".—[Official Report, 12/3/03; col. 1419.] I agree strongly with what she said. There is no disagreement between us on that point.

The amendment would clarify the position. If a competent patient refuses sustenance, no offence will be committed under the Bill if the medical staff do not provide sustenance. As I said at Second Reading, 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 the tort of battery, of which he would be guilty in imposing sustenance contrary to a competent patient's wishes.

My noble friend Lady Finlay of Llandaff also noted that the Bill did not cover the provision of oxygen to patients or other essential aspects of patient care, such as turning a patient in order to avoid bedsores. The simple reason for that is that our courts have yet to say that the provision of oxygen or the turning of a patient can be stopped with the purpose of hastening or otherwise causing the death of the patient. To do that would still be illegal in this country. However, since the judgment in the Bland case of 1993, to which reference has been made this evening, the killing of non-dying patients in a persistent vegetative state and in similar conditions by the withdrawal or withholding of sustenance has been legal. Hence, the Bill focuses on sustenance, not on the provision of oxygen or turning in the bed.

We recognise that the provision of oxygen and the practice of turning patients represent basic care, but sustenance is also a basic human need that should never be withdrawn or withheld, if the purpose in doing so is to hasten or otherwise cause the death of the patient. For those reasons, the amendments would be helpful, and I strongly support them.

Earl Howe

As my noble friend Lady Knight of Collingtree explained, the amendment seeks to address what was identified at Second Reading as a shortcoming in the Bill—namely, that it took no account of the autonomy of the patient or the right of the patient to make a choice about the treatment that he or she receives.

I welcome the amendment as an improvement to the Bill, at least as regards its broad aims. However, I ask my noble friend whether the amendment, as it stands, is satisfactory. What if the patient who refuses sustenance lacks capacity to take decisions about his treatment? What if the patient is a child? What if he is not sufficiently informed to make a balanced judgment?

If the amendment were made, doctors would be absolved from trying to exercise their professional judgment in cases in which, currently, they have a duty to do so. It would mean that, if a patient refused sustenance on, perhaps, a single occasion, a doctor would have no duty in law to discuss the pros and cons of that decision with the patient. It would mean that considerations of the mental capacity of the patient were irrelevant.

I cannot think that my noble friend intends any of that, but she will need to persuade me quite hard that the amendment, in its current form, is right. It seems to leave the law less strong than it is at the moment.

Lord Clement-Jones

I agree strongly with what the noble Earl, Lord Howe, said. It is a complex area, and I know that Amendment No. 5 contains a great deal more correct complexity. That amendment recognises that it is not just a simple matter of whether the patient has refused sustenance. When we come to that debate, that will become a great deal clearer,

Baroness Andrews

I endorse what the noble Earl said. The problem raised by the amendment is that it does not distinguish between patients with the capacity to make a decision and those lacking that capacity. It does not take account of the fact that a patient who lacks capacity may refuse sustenance, even if its provision would be in their best interest. For example, an elderly patient suffering from dementia might refuse food and water because of confusion or a paranoid belief that the food was poisoned. Therefore the amendment would create the perverse result that a doctor could lawfully withdraw sustenance from a patient who refuses it, even if the patient lacked the capacity to make the decision and even, if by doing so, they were to put their lives at risk.

More significantly, that would represent a weakening of the current law which requires doctors to act in the best interests of patients where they lack capacity to take decisions for themselves. In the light of those remarks, I would ask the noble Baroness to consider seriously her proposed amendment.

Baroness Masham of Ilton

I wish to agree with what the Minister has just said, although I agree with the spirit of the amendment. However, I think that it needs to be amended.

Baroness Knight of Collingtree

The hour is late and we have been discussing the Bill for rather longer than perhaps we thought we were going to. I appreciate that it will have to be postponed. As always, I shall be glad to consider carefully what has been said and to think about a better form of words to adopt in the Bill as we proceed with it to a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Lord Grocott

Debate on this Private Member's Bill has gone on a little longer than we had anticipated. With the agreement of the Committee, I hope that we shall find time to complete the Committee stage as soon as can be conveniently arranged. In the mean time, however, I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.