Mental Capacity Bill

Part of the debate – in the House of Lords at 2:30 pm on 15 March 2005.

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Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities 2:30, 15 March 2005

My Lords, my only qualification for taking part in the debate is that I was amicus curiae in the Bland case, as has been said. I hope to address the House more in that capacity than in taking sides of any political nature. To prepare for the debate, I reread Bland and the cases used. I shall try, in a brief and non-technical way, to explain what I consider to be the existing English law and why I believe that the amendment will not be capable of achieving its intended effects, in the end. I say that with the greatest possible respect.

The Bill as it stands gives proper effect to the principles of English law that were recognised and developed by the courts and upheld by the five Law Lords—not nine; I do not know where another four have been found by anyone. There were only five of them, but they were unanimous. They upheld clear principles in Bland in 1993. The Bill also gives proper effect to the recommendations made by the Select Committee on Medical Ethics that were summarised clearly by the noble Lord, Lord Walton of Detchant, in his opening speech.

Bland would effectively be overruled by the amendment. The amendment is not in accordance with the principles that have been stated by the courts, as I shall try briefly to explain, and would upset the necessary and sensitive balance between the sanctity of human life, the individual patient's right to self determination—to decide whether to accept or reject medical treatment—and to dignity, all of which have been referred to by the courts and, in the case of a patient who lacks mental capacity to express his or her own wishes or to express those wishes when the patient had capacity, the duty of the doctor to give or withhold treatment according to what appears to be in the best interests of the patient.

Perhaps I may briefly explain. In Bland, the central question was whether artificial feeding and antibiotic drugs might lawfully be withheld from an insensate patient with no hope of recovery when it was known that if that were done the patient would shortly thereafter die. The five Law Lords made it clear that euthanasia by means of positive steps to end a patient's life, such as administering drugs by lethal injection to bring about the death of the old and infirm, the mentally defective or the physically imperfect, is unlawful. That was made perfectly clear in Bland and that is reflected in Clause 4 (5) and in Clause 58. It is one reason why the amendment tabled by the noble Lord, Lord Brennan, is, in my view, unnecessary.

The main amendment would mean that any decision, whether by a third party, such as a doctor, or deputy, or attorney, or by the patient in advance, to provide, withhold or withdraw treatment made with the purpose of causing the patient's death would be prohibited. Where the patient's death was foreseeable, the only exception, in subsection (3), would be where the decision-maker's purpose was to avoid harm or burden to the patient.

In the particular circumstances of Bland itself, the patient was permanently unconscious and was not being harmed or burdened by the treatment he was receiving. If the amendment were enacted, the exception would not apply and doctors would be obliged in law—I know that it is not the intention but it would be the effect—to continue to provide the treatment, perhaps for decades, as was true in the case of Tony Bland, even though it was futile, because the patient would never regain consciousness.

Although it is not its intention, the amendment would run counter to well-established English and human rights convention legal principles, and the ethical principles they reflect, summarised in Bland by the Court of Appeal and the House of Lords, and contained in the Bill.

Perhaps I may briefly explain and I am sorry to weary the House. It is well established that the principle of self-determination requires that respect must be given to the clear wishes of the patient so that, if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life might be or would be prolonged, the doctors responsible for the patient's care must give effect to his wishes, even though they do not consider it to be in his best interests to do so. A doctor must comply with clear instructions given by an adult of sound mind as to the treatment to be given or not, whether those instructions are rational or irrational.

The case that says that is Sidaway, which was decided by the House of Lords as long ago as 1985. That principle applies, even if, by the time the specified circumstances obtain, the patient is unconscious or no longer of sound mind. To that extent, the principle of the sanctity of human life must, the courts have made clear, yield to the principle of self-determination.

The proposed amendment would not permit effect to be given to the patient's right to decide to refuse consent to treatment, strongly endorsed by the Walton committee in paragraph 234 of its report—for example, Jehovah's Witnesses refusing blood by an advance decision, or patients with terminal conditions who did not wish to undergo a particular procedure, such as chemotherapy to treat cancer—where death was foreseeable and where the decision-taker considered the decision to be unwise or irrational, contrary to the common law and the human rights convention, as reflected in Clause 1(4) of the Bill. Competent adults are entitled in law to refuse treatment for any reason and to decide not to undergo it.

It is also well-established that, where an adult patient is mentally incapable of giving his or her consent to treatment, no one, including the court, can give consent on the patient's behalf. Treatment in such a case may lawfully be provided by a doctor where the treatment is in the patient's best interests. That was decided in 1990 by the House of Lords in the case of F v West Berkshire Health Authority. It is also well established in Bland and its progeny that a doctor may refuse to continue treatment where death is foreseeable but the treatment is not in the patient's best interests because of its futility.

In my view—I am sure that the Minister will make the clarifying statements being sought—the amendment would over-rule or cause confusion, not only in relation to Bland, but, ironically, in view of what has been said by the noble Lord, Lord Brennan, in relation to the application of the double effect doctrine. That, as the noble Lord, Lord Brennan, knows better than I, was introduced by Thomas Aquinas in the Summa Theologica, when discussing the permissibility of self-defence. Killing one's assailant, Aquinas argued, is justified, provided that there is no intention to kill him. That humanitarian doctrine was brought into English law by the well-known Catholic jurist, Patrick Devlin—Mr Justice Devlin, later Lord Devlin—in his famous summing up to the jury in the trial of Dr Bodkin Adams, to explain the permissibility of action that causes serious harm, such as death, as a side effect of promoting some good end.

Double effect concerns situations where treatment is provided—for example, treating a cancer patient with life-shortening chemotherapy or administering morphine as part of palliative care for a patient with MND—and where doctors can foresee life-shortening as a secondary effect of the treatment.

The doctrine has its critics, none more than the noble Baroness, Lady Warnock, and including little me. But the over-ruling of the doctrine, which would be the unintended double effect of the amendment, without creating a new statutory defence to homicide, which is not contemplated by the movers of the amendment, would place doctors and nurses at risk of prosecution and patients at risk of unnecessary pain and suffering. That would be contrary to the approach of the Walton committee, which, as the noble Lord, Lord Walton, has pointed out, recognised, in paragraph 242, that the fact that treatment to relieve pain and suffering might mean that a patient's life might be shortened was no reason to withhold the treatment, as long as the doctor acted in accordance with responsible medical practice with the objective of relieving pain or distress and with no intention to kill. That represents present English law but I believe that it would be jeopardised by the amendment.

Finally, I apologise to the House for giving my best effort as a legal opinion in order to clarify such matters for those who do not have my kind of sad life.