My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Baroness Ashton of Upholland.)
My Lords, the purpose of this amendment is to clarify that if someone with capacity has written down their wishes and feelings in respect of a matter, including positive preferences, those must be explicitly taken into account in a best-interests determination.
Patients do not have a right to demand and receive treatment, so advance requests cannot have the same legal effect as advance decisions to refuse treatment. However, the amendment makes clear that preferences about any aspect of a person's life, including treatment, should be respected and taken into account. We believe that that has always been implicit in Clause 4, which says that the decision-maker,
"must consider, so far as is reasonably ascertainable—
(a) the person's past and present wishes and feelings".
I agreed to make that clear, in response to an amendment about advance statements from my noble friend Lord Carter in Committee.
I want to clarify how that relates to medical decisions because in a medical situation it is already best practice for any doctor who departs from a patient's clearly expressed wish to explain his reasons for doing so, and he would be expected to keep records to enable that. That means that, where someone has sought to make an advance refusal of treatment that does not qualify under Clauses 24 and 25, but there is still a reasonable belief that that is an expression of the person's wishes, it will be taken into account, too, in assessing best interests. The absence of a valid and applicable advance decision does not automatically mean that treatment must be provided. As I have indicated, the decision must be made according to the overall best interests of the person. The more specific and well thought-out the statement, the more likely that it will be persuasive in determining best interests.
The amendment goes further than the stakeholders' requests to us in that it covers all best-interests decisions, not just those involving treatment. For example, it covers financial preferences or where somebody might wish to go on holiday. I hope that that meets the needs that I said I would address in Committee. I beg to move.
moved Amendment No. 9:
Page 3, line 39, at end insert—
"( ) Nothing in this Act shall permit the withdrawing or withholding from any person of nutrition or hydration, howsoever provided, save where the provision thereof would itself cause harm or burden to the person greater than if the nutrition or hydration were not provided."
My Lords, before I talk about the amendments tabled in my name, I wish to thank the noble Baronesses, Lady Ashton and Lady Andrews, for the government amendments that were put forward and accepted by this House on Tuesday evening and this morning. Those anti-discrimination amendments will help to protect those who are most at risk from misrepresentation in this Bill. Those amendments, plus others tabled today, particularly those relating to Clauses 34 to 40, where patients will have an independent advocate to speak for them, are most welcome.
That brings me to Amendments Nos. 9, 9A and 113, to which the noble Lord, Lord Alton of Liverpool, and the noble Baronesses, Lady Masham of Ilton and Lady Knight of Collingtree, have kindly put their names. Over the many days on which we have discussed and debated the Bill I have watched it change from a document that instilled fear in me to one that, although not perfect, is much safer and much more protective of the most vulnerable in society.
There is still one area of real concern to me; it is covered by these amendments. I cannot perceive a society that would, or could, accept the withdrawal of nutrition and hydration unless to give it would cause harm. To talk of intention and purpose seems somewhat unreal when we are talking of that which sustains life. For us to spend hours discussing the most appropriate words seems irrelevant when we all know the consequences of withdrawing basic nutrition and hydration.
I acknowledge and accept that there are situations where treatment is futile. I also accept that as the dying process progresses, the body no longer requires sustenance. Those are facts. However, the withdrawal of nutrition and hydration can increase the suffering and distress of the patient until the deprivation of hydration takes effect. We must remember that this Bill does not just cover people who are unconscious and unaware. Clause 3(1)(d) clearly states that,
"a person is unable to make a decision for himself if he is unable—
(d) to communicate his decision".
Lack of capacity can be because of inability to communicate. If these amendments fail, fully conscious, fully aware people are at risk of having sustenance removed.
From a personal point of view, I cannot think of a worse nightmare than feeling hungry or thirsty, not being able to communicate and having full knowledge that the only respite would be as I approached death. I am certain that that scenario is not the Government's intention. But if Clauses 4 and 60 are not amended it will happen. There have been documented cases where people have had nutrition and hydration removed but continued to show signs of wanting food and water because, for lack of capacity, there was no opportunity to voice new wishes.
I do not want to challenge the Bland judgment; I have started each amendment "Nothing in this Act" to avoid conflict with it. I also appreciate the fact that this will affect only a small number of people. But if you or somebody you love are one of that number, you would not find that any consolation.
I ask noble Lords to support the amendments because, morally, it is wrong to increase the suffering of people in the latter stages of life, when they are at their most vulnerable and should be offered the highest levels of dignity, respect and care. I beg to move.
My Lords, I am very happy to support this amendment put down by the noble Baroness, for whom all of us, already, have a great admiration. I confess that I am feeling a sense of déjà vu as the debates on this Bill continue. Every time we put down an amendment to remedy what we believe is a dangerous implication in the Bill—that it creates a serious risk in some of its aspects—we are told soothingly and convincingly "not to worry—that protection is in the Bill already".
Whether we are trying to ensure that suicide by advance decision does not happen, or we are trying to help those with conscientious objections by making it certain in law that their rights would be protected, or whatever protective measures we seek to make, the answer is the same. We are told, "There is no need for this amendment. The Bill will not allow any diminution of patients' rights or the rights of those who care for them". Yet we can never be certain that that is correct because it is never on the face of the Bill.
I have an unhappy feeling that the same anodyne dose will be offered to this amendment. As I have said, I have no wish to endanger the Bill by speaking at length. But if we do not speak now, when can we? Those of us who see and feel the dangers ahead have a clear duty to seek to shield patients from the pain that we have already seen many suffer.
When I introduced my Patient's Protection Bill, I did so because I had such a wealth of shocking evidence that sick people in NHS hospitals were being deliberately denied food and liquids and were dying because of it. Sometimes the food and liquids were deliberately put out of the patient's reach. I am not making those stories up: there is ample evidence for them.
The Government blocked the Bill but a Government Minister, the noble Lord, Lord Filkin, who was responsible for the Bill, assured me when I sat on the Select Committee which studied it, that the matter would be addressed in this Bill. Therefore, in earlier debates, I have not unnaturally sought to be sure that it provides the safeguards which really are so desperately needed. But, yet again, the soothing syrup which so effectively clogs the wheels of action is offered in large spoons.
We are told, "There is no need for this amendment. Such treatments as withholding food and liquids, putting them out of the patient's reach or failing to make the patient comfortable by moistening his dry mouth, are already covered by good medical practice. No hospital would act in this way".
If all that is true, why, under these present rulings, which have been referred to so specifically and so frequently, have we so much evidence from patients, their relatives, MPs and public figures who have seen it for themselves, as well evidence from television programmes, newspaper reports and even doctors and nurses? Why does it go on if it is already illegal? That seems a perfectly fair question. When Nelson said, "I see no ships", his motive was brave and noble. But when the BMA pretends that those things do not happen, I fear that I cannot ascribe to it—although I admire that profession greatly—the same noble intentions.
I am getting quite used to being told that amendments are unnecessary. The only reason that this one is in that category is either a belief that all evidence is illusory or that we can afford to turn our backs and close our eyes on people who are suffering. Years ago I would have accepted without question that doctors would always do everything possible to help their patients, to keep them alive if possible, and to keep them comfortable. I still admire doctors, but that old belief has gone. I do not believe it any more: how can I, with all the evidence against it?
I understand that newly trained doctors do not now affirm the Hippocratic oath, which put the patient's care as a priority. They no longer sign automatically that the duties of a doctor mean also taking on the content of that oath. Whatever unwritten laws there may be in the medical profession's rule book, in the name of patients we must face the facts of evidence and try to get this amendment in the Bill.
Julia Quenzler, a famous court artist at the BBC, witnessed her mother being sentenced to an agonising death by thirst as a result of doctors depriving her of water. She said that her mother would give a firm nod when asked whether she wanted a drink of water, but the water never came. She states:
"My mother was not seriously ill when she walked into hospital. In fact she was a relatively healthy woman with a relatively common problem. Six days later she was on her deathbed".
She went on to state that she did not know what more she could have done, apart from abseiling off the hospital roof, to bring attention to her mother's needs. She said that she,
"literally begged [the doctors] with my hands pressed in supplication. I don't know why these doctors did what they did. In the absence of any plausible explanation, I can only conclude that they considered my mother an expendable nuisance".
The examples I give are all cases that have come to my notice since my Patient's Protection Bill failed to become law. A nurse, Pat Tyler, said in respect of her mother:
"She must have died thirsty . . . she must have been dreaming of cups of tea, of rivers of water. They should not have taken the water away from her".
But they did.
Nurses at Kingsway Hospital in Derby have claimed also that their patients were dying of thirst and that they were not given water or drips. I have added all those cases to my large pile on the subject since the last time we debated this issue.
It is undeniable that whatever rules may govern medical procedure, they are not sufficient to stop the cruel things which are going on. Do we want to stop them? I hope that we do. Do we accept that it is wrong? I hope that we do. If so, the remedy is now in our hands to take action. Agreeing the amendment would make it clearly law that patients must not be treated in the way in which they have been treated in the past, and the amendment in the name of the noble Baroness, Lady Chapman, is the answer.
Of course, we recognise that in some cases providing food and liquid might harm the patient. Peers will observe that the amendment does not disallow the stopping of nutrition where that danger exists. The noble Baroness has been very careful about that. We cannot fail to agree the amendment if we want patients to receive the very first necessity, which is usually for comfort and well-being, but always for life.
Finally, I must express the profound hope that the other regular formula against amendments—that is, that they will wreck the Bill—will not be made in this regard. This amendment will not wreck the Bill. It will save the lives of many patients.
My Lords, I support the amendment standing in the name of my noble friend. I also pay tribute to the noble Baroness, Lady Knight, who has just resumed her seat. She previously put before your Lordships' House her Patient's Protection Bill and has assiduously pursued this issue, believing, as she does, that we need to give every possible protection in the Bill to vulnerable people. I know that all parts of this House are not so far apart in wanting to achieve that objective.
However, as my noble friend and the noble Baroness, Lady Knight, have said, the issue is how we go about it. In supporting the amendment, I simply return to a subject that I and others raised during the passage of the Bill that the noble Baroness put forward, and an issue that I also raised at Second Reading and in Committee.
The amendment flows from our discussion last Tuesday. If the loophole that was identified by Professor John Finnis, Professor of Law at Oxford University, and Archbishop Peter Smith of Cardiff had been closed, I doubt that the movers of these amendments would feel the need to pursue the argument further.
During our earlier debates, considerable doubt arose about whether we should believe lawyers such as Professor Finnis or the noble Lords, Lord Carlile of Berriew and Lord Brennan, also distinguished lawyers. As the noble Baroness has just asked, should we trust the many assurances we have been given or should we look for provisions in the Bill? I have always erred on the side of the latter approach, which is why I welcome Clause 58 as a first step in addressing the issues identified today in these amendments by my noble friend.
Curiously, during the 36 hours that have elapsed since we last considered the Bill on Report, an issue has arisen that should inform today's debate about the confidence we place in assurances, and on the importance of writing things in the Bill. In 1990 in another place, I challenged a proposal to permit eugenic abortions up to birth on unborn babies with a disability. I said that it was a discriminatory provision, which is the thrust of the argument put forward today by my noble friend Lady Chapman and which lies at the heart of these amendments. I said that it was also a discriminatory provision that would lead to perfection tests governing our right to life.
In 1990 I circulated a legal opinion drawn up for me by two eminent Oxford lawyers, Professor John Finnis—much cited in our debates two days ago—and Professor John Keown, now professor of law at Cambridge University. Professor Finnis said that if the law was changed in the way proposed in 1990, it would lead to abortions on the grounds of conditions such as cleft palate or hare lip. At the time he was ridiculed and castigated. One Member of Parliament, Mr Frank Doran, accused him of "pure scaremongering", while the present Solicitor-General, Harriet Harman, said that both Professor Keown and Professor Finnis should be reported to the Bar Council and to the Law Society.
No doubt Ms Harman will have followed carefully yesterday's decision by the Crown Prosecution Service to take no action in a case raised by a brave young Anglican curate from the Chester diocese, Joanna Jepson. She challenged the abortion of a baby, under the terms of the 1990 law, who had a disability. The baby's life was ended at seven months' gestation. The grounds for the abortion, as correctly anticipated by Professor Finnis in 1990, were that the baby had a cleft palate. The Crown Prosecution Service has now upheld the decision to end the life of a baby of seven months' gestation merely because of a very minor disability.
Was Professor Finnis scaremongering, or did the professor of law at Oxford University have a stronger grasp of the law than the present Solicitor-General, who wanted him brought before the Bar Council and the Law Society for accurately analysing the ramifications of a law that had been laid before Parliament and which was supported by many leading political figures with a great knowledge of the law, even such as the present Prime Minister himself?
In the context of the amendment before us, this case reveals two things. First, we now routinely practise eugenics in Britain and, as my noble friend Lady Chapman has just reminded us, the provisions in this Bill could further put the lives of disabled people at risk. Secondly, it puts into sharp relief the things that have been said by Professor Finnis about the need to close a loophole in Clause 58. One noble Baroness said to me yesterday that she had not appreciated that it was Professor Finnis who worked with the Government in drafting Clause 58, and that if anyone should understand its shortcomings, it would be he.
For the sake of the record, and in advance of the extensive debates on Lords amendments that may take place in another place, it is important to put on the record the united view of Professor Finnis and the Archbishop of Cardiff, Peter Smith. However, I see that the noble Lord, Lord Carter, wishes to speak. I shall return to that in a moment, after happily giving way to the noble Lord.
My Lords, I rise just to remind the noble Lord that the Joint Committee that I chaired on the draft Bill recommended that there should be a clause in the Bill along the lines of Clause 58 which, strictly speaking in law, is not necessary. It is a declaratory clause and was brought forward, as I say, as a result of the recommendation made by the Joint Committee.
My Lords, I am grateful to the noble Lord, Lord Carter, for reminding us of that. He will also confirm that throughout the consideration period Professor Finnis had extensive discussions with the department and ensured that this provision was placed in the Bill. But it is also important to recognise his view that this provision does not go quite far enough.
I recognise also that the gap between us is one which still could be closed between now and Third Reading. That is why I am offering these thoughts in a constructive way. I want to see a resolution of this issue and I want the Bill, which contains much that is good, to proceed to the statute book.
"Professor Finnis and I believe that a further amendment is still needed to ensure that the Bill confers no authority on expressly suicidal advance decisions. We therefore strongly support efforts of Members of both Houses who are seeking to introduce an amendment to exclude decisions from being given validity or authority by a Bill where they have a purpose of bringing about death or are motivated by a desire of doing so. I very much hope the government will reconsider its opposition to inserting such an amendment, which we firmly believe can be made without affecting the jurisdiction of the courts affirmed in the Bland case".
That point was just made once again by my noble friend Lady Chapman in introducing these amendments.
It is well known that the main promoter of advance decisions is the Voluntary Euthanasia Society. The society has been ominously and curiously quiet about the Bill, knowing how it can be exploited. I know that the Government might now regret it, but it is a fact that the VES advised the Government on the preparation of an earlier consultation document, Making Decisions, which paved the way for this Bill. Is it any wonder, in the light of that and in the light of previous experience, that we now have our suspicions about where the Bill might lead?
My noble friend's amendment and her speech remind us that a great many people outside this House who are following our proceedings fear being inappropriately denied nutrition and hydration, the very basics of life itself. And in the light of the eugenic abortion at seven months' gestation of a baby with a cleft palate, please let no one accuse my noble friend, myself, or Professor Finnis of "pure scaremongering", or threaten us with the Bar Council or some other professional body. This House may dismiss their fears as ill founded, but I should like to stress a point I have made before in your Lordships' House. We are not legislating for some Utopia where decision-makers will always have the best interests of incapacitated persons at heart.
During the 1990 debate, the noble and learned Lord, Lord Brightman, said that, "it would be unthinkable" for a doctor who was carrying out a termination to preserve the mother's life or health to gratuitously terminate the life of the child:
But sadly, as the noble Baroness, Lady Knight, has just said, what was once unthinkable can rapidly become normative if we do not put the necessary safeguards in our legislation. What was once a heinous crime can rapidly become standard medical procedure. It is not enough to leave it to good intentions and, yes, it is sometimes the role of Parliament to legislate not just to spell out duties, but also to protect the weak and the vulnerable.
Some individuals, perhaps not many, will seek to use this legislation to end prematurely the lives of those who lack mental capacity. Denial of nutrition and hydration is one of the ways in which this could be done.
Many people's fears were compounded when we learnt that the Secretary of State for Health has argued in his submission to the Court of Appeal in the Burke case that resource considerations need to be brought to bear on the decision on whether artificial nutrition and hydration should be provided. My noble friend Lord Maginnis of Drumglass has been pursuing this point in Questions put to the Minister, the noble Baroness, Lady Ashton of Upholland.
This amendment does not oblige medical professionals to do everything to keep alive patients who are clearly dying and for whom the provision of nutrition and hydration would have no benefit or would be harmful, futile or burdensome. On Tuesday, I listened with great interest to the moving speech of the noble Lord, Lord Carter. He told us that,
"we are all entitled to follow the dictates of our conscience, but not perhaps by attempting to impose them on others through legislation".—[Hansard, 15/3/05; col. 1289.]
Neither this amendment nor the amendments debated in your Lordships' House on Tuesday are an attempt to impose anything on anyone. Rather, they represent an attempt to improve the legislation. They do not necessarily represent perfection, and we are all open to further dialogue and discussion with the Government between now and Third Reading to get this right. These amendments represent an attempt to ensure that the Bill cannot be used as a vehicle for intentional killing. I believe that that objective is shared by everyone in the House who has contributed to these debates.
On Tuesday the Minister helpfully answered the seven questions posed by the noble Lord, Lord Carlile. I shall end with just two further questions. First, will the Minister tell us quite explicitly today, in answer to a question raised with her last Tuesday by the right reverend Prelate the Bishop of Oxford and myself, whether Clause 58 covers advance directives? Secondly, do the Government support the legalisation of euthanasia or physician-assisted suicide? They are two straightforward questions that need to be recorded in our debates. They are different questions from those that have been asked so far. We have received the Government's assurance that the Bill does not legalise euthanasia or physician-assisted suicide, but suspicions will linger for so long as the Government fail to commit themselves to opposing any attempts in Parliament to legalise either euthanasia or assisted suicide.
Many of us would like to see the Bill enacted, but its fate is now in the hands of the Government. Unless the fears raised by my noble friend Lady Chapman are properly addressed between now and Third Reading, the Government will—I know and they know—be in deep trouble with their own supporters as well as the Opposition Members in another place. I hope that, between now and Third Reading, they will seize the initiative and re-engage with Professor Finnis and others to seek a mature political resolution of these complex issues. I support the amendment.
My Lords, I shall intervene briefly following the excellent case made by my noble friend Lady Knight and others. I have just one question for the Minister. If the Bill already covers these points, and these things cannot possibly happen, is there any reason why a relative or close friend, visiting a patient who is unable to communicate in any way, can be prevented from demanding, on behalf of their close relative, that he should be given nutrition and hydration?
My Lords, I have put my name to the amendments. It was mistakenly omitted from Amendment No. 9A. Many people feel that the Bill is still not clear enough in safeguarding at-risk and vulnerable people as regards food and fluid.
What Ministers and Members of both Houses think should happen may not be what is happening in some busy hospitals and nursing homes. Some disturbing cases have just arisen in a nursing home in Yorkshire. The Minister will no doubt say that the amendments are not necessary, but many people feel that they will help to clarify what has become, and what may become, a grey muddle on the ground.
Doctor Anthony Cole, a consultant paediatrician and magistrate whom I know, has said:
"We hold most strongly that death by dehydration is unacceptable, inhumane and leads to a slow and painful death".
I hope that the Minister will accept the amendments, thereby helping many people who are concerned about what is happening and what may happen in the future.
My Lords, I oppose the amendments, but I recognise the cases that the noble Baroness, Lady Knight, has mentioned. Cases of bad care come across my desk every day. Amid the many hundreds of thousands of treatments that are given every year, such cases undoubtedly exist. I would be the first to say that we needed better professional practice than to allow people to remain in that sort of distress.
I shall address what I believe is a false premise about artificial nutrition and hydration. Before doing so, I turn to the priority that we have all given to the autonomy of the individual in making decisions about their future treatment and care in advance directives.
We all strongly support the idea in the Bill that you should be able to make a decision when you have capacity about whether you wish to accept specific treatments when you lack it. Artificial nutrition and hydration are invasive medical treatments that fall clearly into the categories of treatment that would be included if an individual said that they wished to refuse life-saving interventions. They involve the insertion of a nasogastric tube, which is not pleasant at all, or the intravenous infusions of artificial nutriments and chemicals. The paraphernalia restrict movement, and the process requires extensive monitoring. It is uncomfortable and very often distressing.
Only yesterday, I saw new guidance from the National Patient Safety Agency about the serious problems involved in maintaining nasogastric tubes. It is not like eating and drinking. The person who is fed through a nasogastric tube does not have a sensation that he has had a meal. It is not a good meal where you sit down with your friends and have a glass of wine and what I suppose these days would be ciabatta sandwich, panini or whatever. It is not like that at all. You are receiving artificial nutriments which often give you very unpleasant diarrhoea and so on.
How often have I witnessed uncomprehending, distressed older people tugging out the tubes and drips in an attempt to be free of the discomfort? On general medical wards, tubes are all too often left in, when someone would really be better not having them.
The whole procedure is burdensome. While the burdens are generally acceptable to people during a temporary acute illness or during a period after an operation from which one is hoping to recover, they are rarely justified as a long-term form of care when someone is approaching the end of life during a fatal illness. I recognise that the noble Lord, Lord Alton, addressed that issue.
If the individual is at home, the question never arises. If they are being cared for by family, tubes and drips are not put in. The possibility arises only when somebody goes into hospital and receives unnecessary interventions. Having written a letter to express that, in the event of my becoming incapacitated, I do not wish to have life-saving treatments, I have assumed that my statement includes those burdensome treatments. Supporting the amendments would mean that my wishes and most other advance directives could be disregarded and overturned.
My Lords, I have nearly finished. Comfort is all. The many patients with dementia for whom I have cared often have two serious physical problems at the very end of life. The first is their skin care and the comfortable disposition of their body; and the second is oral care and the hydration of the mouth. Above all, those require good, basic nursing care. It is possible to maintain somebody's hydration without all the artificial, intravenous paraphernalia. When we are near to death, we all crave the right touch more than the right food. It is the individual who has the right to decide in advance, and we should do nothing to undermine that right, as the amendments would.
My Lords, the noble Baroness has spoken only about artificially conveyed food and liquid, but the amendment does not refer merely to that. It refers to simple feeding and the fact that, so often, food is too far away, yet none of that has been addressed by the noble Baroness. Some of us have a great deal of evidence of patients not being fed ordinarily, let alone with tubes. Would the noble Baroness speak for just one second about that?
My Lords, I agree with the noble Baroness completely, but basic care is in the Bill. The way we must address the best interests of the patients is by proving good clinical practice. I believe that there are safeguards in the Bill. Clause 58, for example, would satisfactorily address the concerns of the noble Baroness. We must tackle the problems that the noble Baroness is raising very vigorously, but this Bill is not the place to do it in this way.
My Lords, I must make absolutely clear, despite the great sincerity and force with which the proposers of the amendment have put forward their case, my reasons for deciding, after very careful thought and consideration, that I cannot support it.
I say to the noble Baroness, Lady Knight, that the Hippocratic oath is no longer sworn by doctors and medical students, and the reason is quite clear: it is totally out of date. It includes all kinds of curious suggestions, such as, "I will not cut persons labouring under the stone", and a whole lot of other things that are totally inappropriate to modern medical practice. But all medical students are taught that their primary concern as doctors is to have a duty of care to their patients, which involves the responsibility, particularly with terminal illness, to offer what many people refer to as "tender loving care", including everything that falls within that category.
As I said on Tuesday, the Select Committee on Medical Ethics, which I chaired, made one or two things absolutely clear and explicit. First, the competent patient, after full explanation of all the potential consequences, has an absolute right to refuse medical treatment even if that will ultimately end in death. That is not suicide or an intending of death but a refusal to accept treatment which the individual accepts as having no benefit or adding nothing to their individual well being. If for that reason a competent patient refuses artificial nutrition and hydration, so be it—that is their own responsibility.
The problem is more difficult with the incompetent patient. I must confess that I would not wish to see the withdrawal of food and fluid from an incompetent patient without exceptional reasons, which are very important. I can say to the noble Baroness, Lady Knight, that if a doctor can be shown not to have fulfilled that duty of care by giving appropriate clinical care to a patient, particularly towards the end of life, that doctor could be reported to the General Medical Council, which would have the absolute right to consider whether under its own guidance the doctor had demonstrated such neglect or disregard of personal responsibilities to the patient as to raise an issue of serious professional misconduct. That is in the GMC's rules; it is something that I remember drafting many years ago.
The defect in the amendment is that it would overturn the decision of the Law Lords in the Appellate Committee in the case of Tony Bland. The reason for that is quite simple: Tony Bland and many other patients like him were in a permanent vegetative state, which meant that the cerebral cortex was dead. He and other patients in a similar situation had no awareness of the position which they were in or of their surroundings, and no reflex responsibility indicating that they were in any sense conscious. Tony Bland and other patients in a permanent vegetative state were still able to breathe and their hearts were still beating, but they were unable to swallow, and they were fed by a feeding tube and given food and fluid in that way.
In a patient who is totally unaware of his or her surroundings and who has no function in the cerebral cortex, one cannot then claim that to give feeding by a tube would do harm or impose a burden on that individual. The Law Lords' decision was that the maintenance of artificial hydration and feeding in the case of Tony Bland was not in his best interests. That, I think, is the guidance that we must use; and that is why I am firmly of the opinion that to pass this amendment would have the effect of overturning the decision on Tony Bland and would raise an enormous number of very difficult and anxious cases.
I shall say one thing to my noble friend Lord Alton, whose absolute sincerity in contributing to these debates is unassailable, I am sure. That is, that I have signed an advance directive that simply says that if I become incompetent and am in a terminal illness, I would not wish to have life-sustaining treatment of a particular kind. That falls in line with the treatment-limiting decisions which we hallowed in the House of Lords report from the Select Committee on Medical Ethics, which was accepted by this House. For the advance directive to instruct doctors to withhold certain treatment in an incompetent patient in a terminal illness is not assisted suicide; it is a treatment-limiting decision which is entirely valid under the present law. To impose this amendment would make that extremely difficult. I am afraid that I must tell my noble friend Lord Alton that I find no loophole in the Bill and that any further attempt to delay its passage would be very harmful to the many excellent provisions that exist within it.
My Lords, I wish to address myself to the phrase in Amendment No. 9A relating to the withdrawal of life-sustaining treatment. A lot of what I was going to say has just been said by the noble Lord, Lord Walton of Detchant, and I need not say any more about the Bland judgment except to quote from it a crucial sentence by Lord Keith of Kinkel. He referred to the state of Tony Bland's brain and so on, and went on to say:
"The undisputed consensus of eminent medical opinion is that there is no prospect whatever that Anthony Bland will ever make any recovery from his present condition, but that there is every likelihood that he will maintain his present state of existence for many years to come, provided that the medical care which he is now receiving is continued".
If the medical care could keep him alive for many years to come, it clearly was not harmful or burdensome, and this amendment would mean that the Bland judgment would be overturned.
My Lords, on that point, I am grateful to the noble Lord, Lord Carter, but does he recall that I raised at an earlier stage of our proceedings the case of Andrew Devine, who also entered a persistent vegetative state, on the same day as Tony Bland. He was a constituent of mine then, when I represented a constituency in Liverpool. The noble Lord will recall that it was at the Hillsborough Liverpool game that these terrible events occurred. Five years later Andrew Devine recovered; he is still alive today and has been fed subsequently. Therefore, the predictive nature of the decisions that have been made cannot always be accurate. Also, it is not the intention of the movers of this amendment to overturn that.
My Lords, that intervention is extremely helpful, because it goes to the heart of the debate. I do not believe that the noble Lord, Lord Alton, believes that those who care for people who are in a persistent vegetative state should have the power to seek the court's approval for the ending of artificial nutrition and hydration so that their life can come to an end. That is a clear division of opinion, and I entirely respect the noble Lord's sincerity. There are those who believe, entirely sincerely, that the beginning and end of life belongs to the Creator and not to us—and I understand those who feel like that. But I do not believe that they should attempt to impose that opinion on the rest of society through legislation.
To move away from the case of Anthony Bland, there are cases of patients in intensive care who are on life support. If they are on life support, they are completely sedated. The treatment that they receive is not harmful or burdensome. Indeed, the only consolation for the relatives in those situations is that the patient feels nothing. To a use a non-medical term, they are completely paralysed. Such treatment is not harmful or burdensome. There are cases in which the attempt at resuscitation can be successful in preserving life but can lead to irreparable brain damage. Those who care for such people—the relatives and doctors—face an agonising decision regarding the withdrawal of life-sustaining treatment.
Amendment No. 9A, which mentions life-sustaining treatment, would prevent a decision being taken to withhold such treatment. I understand and respect those who as a matter of conscience would not wish to make such a decision, but I do not agree that such a right should be removed from those who might wish to exercise it.
My Lords, I promise not to bore the House by repeating the summary that I attempted to make on Tuesday of the legal and ethical principles reflected in the Bland decision, but I would like briefly to deal with one or two matters that have arisen today on the amendments.
I should say at the outset that I am perfectly sure that it is not the intention of either the noble Lord, Lord Alton of Liverpool, or the noble Baroness, Lady Knight, to wreck this important Bill, but I have no doubt that the effect of these amendments would be to torpedo the Bill, for the following reason. As the noble Lord, Lord Walton of Detchant, emphasised, there are no loopholes in this Bill. These amendments would overturn not only the Bland decision but all the legal and ethical principles contained in it and would in my view breach the human rights in the convention.
I am perfectly sure, although I am no longer on the Joint Committee on Human Rights, that if these amendments were to be referred to that committee and a legal opinion obtained—which, of course, it is too late now to do—it too would come to the considered view that these amendments were incompatible with, for example, Article 8 of the convention guaranteeing personal autonomy and Article 3 on dignity, and so on. As I say, however, I will not bore the House with that.
I should like to do a couple of things that I hope will be useful in this debate. The first is to remind the House of the safeguards that have been built into the Bill by the Government with our consent, which it seems to me are extremely important in giving the context.
The first point is that the Bill makes it quite clear that decisions to be taken about any treatment for someone who lacks capacity, whether or not it is life sustaining, must be determined by whether it would be in that person's best interests to receive the treatment. That is Clause 4.
Then, the Bill has been amended to make it clear that when someone is making a determination about whether life-sustaining treatment would be in someone's best interests, they cannot be motivated by a desire to cause the person's death. That is in Clause 4(5). That makes it clear that personal value judgments or a desire that someone should die for whatever reason have no part to play in determining what is in someone's best interests. That amendment ensures that artificial nutrition, for example, is not withheld inappropriately as a result of any value judgments by the decision maker.
Then, in addition to requiring that advance decisions that refuse life-sustaining treatment must be made in writing and witnessed, Clause 25(5) and (6) make it clear that an advance decision is not applicable to life-sustaining treatment unless it includes a statement that it is to apply to the treatment even if the person's life is at risk. That makes it clearer than the previous provisions. It requires anyone making an advance decision to refuse life-sustaining treatment not only to specify that they wish to refuse particular life-sustaining treatment, but also to specify that they wish that refusal to apply even if it risks death.
Those safeguards, together with the guidance which I understand will be included in a code of practice, will provide a completely balanced and workable framework to protect the sanctity of life and the patient's interests and, if I may say so, the ethical good practices of the medical profession.
Clause 26(2) provides that where the doctor is in any doubt about the validity and applicability of an advance decision, she or he can provide treatment according to the person's best interests safe from liability.
I have wearied the House with that because it is important to get the framework right.
In order that the House understands the clash of principle which underlines these amendments, I want to go back, as the noble Lords, Lord Carter and Lord Walton, have done, very briefly to one passage in Bland. I only wish that it were possible to summarise some of these principles. They deal, I think quite clearly, with a different philosophy—a complete different philosophy—from that of the movers of this amendment. For those who want to look it up, it is the 1993 Appeal Cases. The particular passage I am looking at is in the judgment of Sir Thomas Bingham, as he then was—then the Master of the Rolls; he is now, of course, the senior Law Lord—and it has not been mentioned in the House before. At page 809, he began by saying:
"if, presciently, Mr. Bland had given instructions that he should not be artificially fed or treated with antibiotics if he should become a P.V.S. patient, his doctors would not act unlawfully in complying with those instructions but would act unlawfully if they did not comply, even though the patient's death would inevitably follow. If Mr. Bland were a child and a ward of the court, it would decide what was in his best interests, having regard to the views of his parents but not treating them as conclusive . . . This case is novel because Mr. Bland is not a child and a ward of court, he is immune to suffering and, as already stated, he gave no instructions concerning his treatment if he were to become a P.V.S. patient".
I skip the next passage about what is artificial feeding, which the noble Baroness, Lady Murphy, explained very clearly, and why it is part of treatment. But then, Sir Thomas Bingham, as he then was, went on to say:
"It is relevant to consider the objects of medical care . . . traditionally they have been (1) to prevent the occurrence of illness, injury or deformity . . . (2) to cure illness when it does occur; (3) where illness cannot be cured, to prevent or retard deterioration of the patient's conditions; (4) to relieve pain and suffering in body and mind. I doubt if it has ever been an object of medical care merely to prolong the life of an insensate patient with no hope of recovery where nothing can be done to promote any of these objects. But until relatively recently the question could scarcely have arisen since the medical technology to prolong life in this way did not exist".
Then, Sir Thomas Bingham, as he then was, quoted case law from around the world—the United States, New Zealand, Canada—all to the same effect, and the Bland principles reflect those. I would ask those who are interested to look particularly at the New Zealand case that he summarises on pages 810 and 811 which, in my view, is wholly in accordance with Bland and wholly in accordance with the dignity of the individual, with the sanctity of life and with patient autonomy.
The problem about these amendments is that they would take away the Bland principles, even though I understand it to be said that that is not their intention. We know that certainly the noble Baroness, Lady Knight, is no friend of the Bland decision. Previously, I think that she was not very keen on it. But that is not the point. The point is that whether or not one is a friend of the Bland decision, in my view, the Bland decision, which is the law of the land, is entirely correct and should not be overturned.
My Lords, the record of what we say here is very important. Does the noble Lord not accept—perhaps he was not in his place when I said it—that I have said at least once if not twice that I agreed with the Bland decision? He is wrong in what he has just said.
My Lords, I am delighted to hear that and glad to know it, because these amendments cannot stand with Bland.
My Lords, before the noble Lord sits down, I wonder whether he is aware that in, for example, the United States, one can legally appoint another person to take these decisions on their behalf if their mental or even their physical condition is such that they are unable to make their views known.
My Lords, in the United States they use a slightly different test from ours; they use a substituted judgment test rather than a best interests test. But it comes to very much the same thing, and the ethical principles set out in Bland repeat what the Supreme Court of the United States and other courts in the United States and Canada have said. There is no real substantive difference between them. They are all to the same effect. They are all contrary to these amendments.
My Lords, I do not often trouble your Lordships' House with speeches, but I am troubled by a number of the issues that are raised in these amendments. I also think that the noble Lord, Lord Alton of Liverpool, is right in predicting that there may be a bit of trouble—to use "trouble" again—in another place unless we can find some way of perhaps getting some accommodation between all of us who wish to see this Bill on the statute book. But that said, I think that these amendments would ensure that basic care, which includes nutrition and hydration, however provided—as the noble Baroness, Lady Knight of Collingtree, has said, it is not just through tubes but through the mouth—is not withdrawn inappropriately.
I am not a medical man or a lawyer, but I am completely bemused by the classification of "foods and fluids" as medical treatment. I simply do not understand that, despite having read the helpful letters that have been circulated. I have yet to hear a convincing explanation why nutrition and hydration, however so delivered, should be classified as medical treatment and not as basic care—the sort of care that we heard about earlier regarding dealing with bed sores and other issues.
Exactly what medical ailment is being treated? Since when has hunger or thirst been considered an illness? Those things constitute deprivations, not illnesses. 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 as are applied in law to animals. If starving a sheep to death is worth a six-month prison sentence—as was reported some months back—how can it be logical, ethical or compassionate to justify the starving to death of a human being? I simply do not understand and I would like to be relieved of my burden of misunderstanding or stupidity by the Minister.
I hasten to add at this point that none of us wants to make unlawful the withdrawal of food and fluids delivered by artificial means from a patient who is in the process of dying, and where the placing of feeding tubes would be regarded as entirely and unduly intrusive and inappropriate—the kind of situation to which the noble Lord, Lord Detchant, to whom I always listen very carefully, has referred in the past—or where, indeed, the risk of placement of feeding tubes would be excessive.
However, in the Leslie Burke case, the High Court declared that it was hard to envisage any circumstances in which withdrawal of assisted nutrition and hydration (ANH) from a sentient patient—the kind of patient to whom the noble Lord, Lord Walton, referred—whether competent or incompetent, would be compatible with the European Convention on Human Rights.
The learned judge—I note that a very learned noble Lord, who is much more learned in the law than I—wishes to intervene.
My Lords, is the noble Lord aware that the decision of my old opponent in the Bland case, Mr Justice Mumby, as he now is, whose arguments were entirely rejected by the House of Lords in the Bland case, but who is now a learned judge, is now under appeal to the Court of Appeal with the consent of Mr Justice Mumby, and that the medical profession itself wishes to be joined and heard as to why that judgment, with which I respectfully disagree in certain respects, is wrong?
My Lords, I was not aware of the fact of which the noble Lord has just informed your Lordships. However, nothing in what he said prevents me continuing the argument which I was putting before the Chamber as a non-lawyer.
It is worth repeating that in the Leslie Burke case the High Court declared that it was hard to envisage any circumstances in which withdrawal of assisted nutrition and hydration from a sentient patient, whether competent or incompetent, would be compatible with the European Convention on Human Rights. It would be interesting to see what happens during that process but in the mean time I refer to what we have on the record. The learned judge in the Burke case also referred to the suffering of patients caused by dehydration and starvation. Will the Minister confirm what safeguards are in place in this Bill to ensure that patients affected by it do not suffer through the premature and inappropriate withdrawal of nutrition and hydration? That to me is a fundamental issue. I suspect that it is also a fundamental issue for many members of all parties in another place.
I am deeply troubled—I am not often deeply troubled, just as I do not often trouble your Lordships' House with a speech—by the fact that the Bill does not provide for judicial scrutiny of decisions to withdraw assisted nutrition and hydration. Therefore, a case might reasonably be made that it is in breach of Article 8 of the European Convention.
My Lords, I hope that the noble Lord will forgive me for interrupting. I wish to put three questions to him. Does he agree that the administration of food and fluid through a feeding tube which invades the human body can be construed as medical treatment? I wholly agree with him that the giving of food and fluid to a sentient patient who is perfectly capable of giving or withholding consent is a part of basic care; that I do not deny. However, the noble Lord may remember that many years ago in connection with the Northern Ireland hunger strikers the whole issue was raised whether doctors had the right to force feed them and to force them to take fluid. After a great deal of ethical consideration, it was decided that they did not have that right. In other words, it still stands that the sentient, competent patient has the absolute right to refuse medical treatment even if he or she also refuses food and fluid.
The other point is that under the Bland judgment, as regards any patient who is in a permanent vegetative state, the tube cannot be removed without the approval of the High Court. This Bill does nothing to change that ruling.
My Lords, I entirely agree with the noble Lord in every sense that anything which invades the person is a medical treatment, but it may also be the critical way of delivering basic care. On the second point which the noble Lord made, when I was fortunate enough to join your Lordships' House in 1997, I promised myself never to use the words "I remember". However, I am afraid that I am about to break that promise to myself because I do remember in 1981 and 1982, when I was Parliamentary Under-Secretary of State in Northern Ireland—where I had been sent by the noble Baroness, Lady Thatcher, for disobedience for creating too much trouble on the Back Benches—sitting by the bed of the second of the hunger strikers, God rest his soul, when he was two days away from dying of starvation. The hunger strikers drank Highland Spring water. It was a sad and terrible thing to see. Of course, any hunger striker has the right to do exactly what they will with their own bodies in the sense that it was done in the Maze Prison in those dreadful and sad days. I hope that I never have to say "I remember" again in the time I am spared for the service of your Lordships' House.
However, I return to what deeply troubles me, and that is I do not think that the Bill provides for judicial scrutiny of decisions to withdraw ANH. Therefore, it may be in breach of Article 8 of the European Convention on Human Rights. The Joint Committee on Human Rights appears to be aware of the Bill's deficiency in relation to that. Paragraph 2.51 of the Joint Committee's 23rd report of Session 2003–04 states that,
"in relation to the withdrawal of ANH, the presumption in favour of life-sustaining treatment is not sufficiently strong in the Bill to satisfy the requirements of Articles 2, 3 and 8 as explained by the High Court in Burke".
In its most recent report—the fourth report of Session 2004–05—which I commend to your Lordships, the Joint Committee urges the Government to amend the Bill to make it clear that if ANH is to be withdrawn or withheld, the document making that refusal or conferring the authority to make that refusal, whether an advance decision or lasting power of attorney, must make it clear that it applies to the refusal of ANH. Otherwise, ANH should continue to be provided, the committee states. The Joint Committee considers that reference to "life-sustaining treatment" is too vague and that people may not appreciate that a decision to refuse life-sustaining treatment would mean that they would be deprived of nutrition and hydration. We are dealing with human beings who may not understand technical terms at the time that they make this commitment. Therefore, I would like to know exactly what action the Government have taken in response to the Joint Committee's report. I am sure that the noble Baroness will tell us that in her response.
The noble Lord, Lord Alton of Liverpool, said that we live in a eugenic society. We have done so for many decades; it is just that it seems to be bubbling up to the surface now. We used to talk about people being "pro-life" and "the politics of pro-life". I do not mean party politics, but the way in which life issues get brought into the political process.
It is interesting for those of us who read the newspapers regularly to see how young female correspondents and commentators, often in their twenties and thirties, are now raising those issues, changing their minds, and changing the ground of argument, as they were once so much in favour of keeping the eugenic society under wraps on matters of abortion that the noble Lord, Lord Alton, referred to. The politics of death, which is the term that I prefer to use, will not necessarily roar but will come quite fast up the political agenda. I know that some people do not like to have some of those issues brought into politics. We had a case of that a week or so ago, when the Prime Minister said that he did not wish to have a particular pro-life/anti-life issue raised in the general election campaign.
None of us who are democrats should ever attempt—as Martin McGuinness has most recently done with the sisters and the fiancée of Mr McCartney who was killed in Northern Ireland—to rule something out of political debate. Anyone who has stood in any election in recent decades will know that those matters of life and death come up from the floor in question and answer sessions, very often promoted by the Church. None of us can rule the key issues out of political debate. The Minister would not seek to prevent that; she is much too sensitive and much too talented, and I had better stop there in case I damage her career.
The issues of life and death and the politics of death will be part and parcel of the next few weeks and the next few years, and we are seeing a major sea change in people's attitudes to those issues. I hope that the Minister can find some way to allow all of us in both Houses who wish to see the Bill on the statute book to vote for it.
My Lords, this has been a long and interesting debate. I begin by saying to the noble Baroness, Lady Chapman, who opened the debate, that I was grateful for her words. I want to say something to her at a personal level. When I came into your Lordships' House, I found that I had to get to grips with the fact that the effect of individual words, because we are legislators, is different from that in the world that I came from. I wondered, as the noble Baroness was talking about dealing with words, whether the same thing is happening to her—that sort of journey into understanding that an individual word put in a law can have a huge effect. I shall return to that as I discuss the amendment.
I say to the noble Baroness, Lady Knight, that I would never want to weary her. I fear that sometimes the noble Baroness feels when I say that something is unnecessary, or use what she described as "anodyne" words, that somehow it is a failure to recognise the underlying interest and cause that she speaks for. I want her to know absolutely—I said it on Tuesday and I will say it again—that I fully understand and respect the issues that the noble Baroness has sought to raise. I say again to those noble Lords who have not been present throughout our debates that because of the work of the noble Baroness, it has become a bigger issue in the Department of Health and in the work that we are doing on this Bill to think carefully about how well basic care is provided for patients. I do not dispute or deny any of the individual, sometimes horrific, stories that she has told us, but that is about people not fulfilling their duties properly, and it is something that we need to address. I simply say that it is not addressed by the amendments.
I say to the noble Lord, Lord Alton, that I would never seek to bring anything that could be described as a threat to him. I have tried in the course of the passage of the Bill to meet and discuss with anyone who has asked me about any of the issues that have been around. We have tried to provide information, and we have had two sessions with palliative care experts in the House for noble Lords. I am sorry that the noble Lord, Lord Patten, was not there, I plan to send him the little briefing pack about why ANH is a treatment, which I think he would welcome. I have held open sessions every day that the Bill has been in the House. I have visited hospitals and talked to doctors and to as many experts as I possibly could. On Tuesday, I put forward the best case that I could, supported by some in your Lordships' House and opposed by others, about why I felt that it was unnecessary to do some of the things that the noble Lord, Professor Finnis and the Archbishop of Cardiff have sought.
There was an opportunity at that stage for those who put forward the amendment to seek the opinion of noble Lords. The noble Lord, Lord Walton, has indicated that he withdrew because he was satisfied, and the noble Lord, Lord Carlile, is of the same mind. The noble Lord, Lord Brennan, indicated to me last night that he would not be pursuing the issue. All I can do is try to persuade noble Lords of the issues. I will do no more than that, and I will not do it in any way other than the appropriate manner that noble Lords would expect; that is what debates are for. The noble Lord must consider whether and how he wishes to pursue this. It is no use saying to me, "In another place there will be concerns". Yes, there will be concerns. Noble Lords will be talking, as they do, to their opposite numbers, as am I. We are in your Lordships' House specifically to deal with the issues before us and to make our decisions and our judgments. Yes, I will continue to talk, but I have no intention of reversing my position as I laid it out on Tuesday. I would not want the noble Lord to think that I would do any other.
I want to make clear the position of the Department of Health on the Burke judgment, because it is important. The side issues around the Burke judgment were not around the provision of artificial nutrition and hydration, which we agree when it is in the best interests of a patient should always be provided; there is no issue about that. It was that alongside it came whether a patient could demand any treatment. There are two problems here that the Department of Health is interested in. The first is around clinical judgment. If a patient determines the treatment that they request that is different to a doctor saying, "This is what you need. You can choose to have it or not, but this is what I recommend". Secondly, there is the resource question that we need to get underneath within that. That is why the Department of Health has joined the Burke appeal, not because of the ANH issue, which it is clear about.
The noble Lord said, "Does the Bill support euthanasia?". It does not. Do the Government in this Bill, or do I, support a position of assisted suicide? No, my Lords, we do not, I do not, and I would not put a Bill before your Lordships' House that did anything to change the law on murder, manslaughter, or assisted suicide. I would resign my position. I would not do it, the Government would not do it, and I would not pretend to your Lordships' House if that were the case. This does not do it. People who have talked and debated with us have come to that conclusion. People of great eminence, not least the noble Lord, Lord Walton, and others who have looked carefully either from, as it has tended to be, a legal perspective or a medical perspective, have increasingly said to me, "I have looked, I have listened, I have looked again, and I agree". The noble Baroness, Lady Finlay, who cannot be with us, sent me a letter—I shall not bore your Lordships' House by reading it out—and she is clear that this Bill does not have the loophole.
Clause 58 is clear; the law on murder, manslaughter and assisted suicide is unaffected. An advance decision cannot require a doctor to do anything, and certainly does not require a doctor to take any step to aid or abet suicide. An advance decision refuses consent to treatment. We all have a right to refuse consent if we have the capacity to do so. The Bill turns what is already in law—the ability to refuse consent—from common law into statute. We have said that when it is about life-sustaining treatment it must be written; it must be specific, and it must be witnessed.
For example, the noble Lord, Lord Alton, and I have talked about a young man of 19 with no apparent condition who comes in with an advance decision written and witnessed saying that he does not want anything done. Where the doctor is sure, because it is obvious that this person has tried to commit suicide, they can treat. The difference is that they can treat without any question of their being taken to court or sued under this Bill. That is a huge and important difference.
The second reason is that even if the decision was not of that type, if the doctor believes that the circumstances have changed in any way—that the treatment has moved on because it was written some time ago or that the individual has done something that suggests that they would not do that or whatever reason—he has only to have any doubt and he can treat, and continue to treat, while seeking advice from the courts if necessary. The Bill makes it much safer and much more protective for people than the current position. That is why it should be on the statute book as soon as possible.
The noble Baroness, Lady Oppenheim-Barnes, who I am pleased to see has joined our debates, raised a question about relatives. In the Bill there is a new right—which, I confess, I thought existed already—that the next of kin will be consulted. I did not know that there was no right in law for that whatever. In the Bill there is a new right for relatives and loved ones to have their voices heard when the doctor is deciding what is in that individual's best interests. I think that it is really important that if my husband, my son, my daughter or my stepchildren were in that position I would be able to be consulted and so would they—as loved ones. That is a very important safeguard. However, if, in that consultation, the doctor had concerns that a loved one was not acting in the best interests of the patient, he can treat. Again, there is a fundamental difference in the position.
I could spend a long time explaining to the noble Lord, Lord Patten, why ANH is a treatment, but I am not going to, because I shall send him the presentation by Professor Rob George, the palliative care expert, which is much better. It is not about classification. What matters in the Bill is ensuring that what is offered to the patient is in his best interests. The whole premise within the Bill is that if you are acting on behalf of someone who lacks capacity, you have to act in his best interests. You cannot do anything that is not in the person's best interests.
For me, the only thing that could override best interests would be if I had written an advance decision that said, in certain circumstances and in a particular way, I would not want this. So, if I am a Jehovah's Witness I may wish to refuse a blood transfusion for religious reasons, which is my right, and decide to write that in an advance decision. Then, if I end up in a road accident and need a blood transfusion, which is clearly in my best interests, my decision on religious grounds can override that. I personally might not like that; the noble Lord might not like that; but that is the right of an individual.
I also wish to be clear that when it is in the best interests—
My Lords, I was trying to get around that by offering to send the noble Lord specific details of the two sessions held in your Lordships' House with a palliative care expert. He explained specifically why artificial nutrition and hydration were regarded as a treatment. I was trying not to weary your Lordships House because some of us have considered this matter many times. If the noble Lord wishes me to go through that, I am able to do so. However, I felt that it might be of more use for the noble Lord to be able to reflect on the particulars and to talk to the palliative care expert who has made himself available to discuss these matters with any noble Lord who wishes.
My Lords, I am grateful to the Minister for giving way a second time and I shall not trouble her again. But I would ask her to reflect on the fact that there may be all sorts of meetings held by all sorts of people with all sorts of views—particular experts in this place, another place or in buildings outside—but it is in this Chamber, in your Lordships' Chamber, where these issues are debated. It is fundamentally undemocratic to suggest that a Minister should not reply to a point, because it happens to have been exhaustively debated in a couple of sessions held by experts in some other place. That is completely wrong.
My Lords, before the noble Baroness replies to that, is she aware that the answer was given by the Law Lords, the Court of Appeal and the judge of first instance in Bland? That is the law of the land and it would be pointless to go into it now. The noble Lord and everyone else can read what they have said. That is the law.
My Lords, I was also going to say that I covered this matter in Committee. I am not denying the Chamber the opportunity to discuss it, but we have debated these amendments before. Sadly, the noble Lord was not here and was not able to read Hansard. I am sorry that that was the case, but I was merely trying to say that I have a way of short-circuiting a whole process, which is to give him a presentation. He could ring the palliative care expert if he wished. He would be available, which I thought would benefit the noble Lord, who could return to the matter if he wished to at another stage. I am very happy to go through the reasons. I trust that the noble Lord will understand that I was not trying to circumvent democracy in any way, shape or form.
The noble Lord, Lord Walton, also specifically addressed this point as an eminent medical professional in describing the invasive nature of the treatment. If you wish to give someone ANH, you must obtain his consent. But there are real consequences for someone who has ANH treatment; for example, you have to watch that he does not become waterlogged, which can be a real problem. Kidney functions must be observed and blood must be regularly taken. For some conditions, ANH is detrimental—for example, with some forms of stomach cancer, where the provision of that food would enable the cancer to grow.
These are all issues that the medical profession believe put ANH into the category of medical intervention and, therefore, treatment—the reason being that you are bypassing the functions of the body and having to monitor the body in particular ways. The noble Lord may not agree with that view. I am not a medical expert, but I have gone to the medical experts and brought them to your Lordships' House so that they could make the position clear. It is also true that there are real side-effects for ANH, of which noble Lords will be aware. There is great discomfort on occasions, bloating or diarrhoea—many burdens that can be felt by the individual when this treatment is provided. So it is carried out with great care and in the right circumstances.
The critical point is that it is carried out when it is in the right and best interests of the patient. To a large extent I agree with the concerns of the noble Baroness, Lady Knight, and the noble Lord, Lord Alton. We should be giving people food and water and artificial nutrition and hydration when it is in their interests. We should not deny people those things. That goes back to the argument or discussion we had on Tuesday about the whole issue of basic care. It is a medical treatment because of the way that it has to be carried out and because of the consequences involved—
My Lords, I am grateful to the noble Baroness and I shall be brief. Will she answer two questions? She mentioned clearly that the nearest and dearest have a right to state their opinion. Does that opinion override and take priority over the decision that might have been made by any of the other consultees? As the noble Lord, Lord Patten, said, it seems that the Bill is incompatible with Article 2 of the human rights convention which states that everyone's right to life shall be protected by law. Is that the case? Is the noble Baroness engaged in any consultation about that?
My Lords, we are moving off into other areas. Regarding the first question, we have enshrined the right of a loved one to be consulted, which does not exist at all at the moment. We have also put in the Bill provision for a lasting power of attorney, so you can give to your loved one the ability to act on your behalf in a whole range of issues, including medical treatment. In all of those contexts, we have said that when you are treating someone the best interests of the patient are paramount. So if you have appointed a lasting power of attorney, but, on listening to that person, the doctor feels that he or she is not acting in the best interests of the patient, he can say, "I am not satisfied, I am going to treat; and I am going to go to court to obtain a decision on this".
That is the position. As I have tried to explain, we have made the position much clearer, much safer, but it is skewed and errs on the side of saying: when there is doubt, you treat. What you cannot do, whoever you are, is not to act in the best interests of the patient, because that would be completely wrong.
Our view is that the Bill is entirely compatible with Article 2. We are in discussion with the Joint Committee and will continue to be, but we think that there are no issues that have not been addressed. We are grateful to the committee, which has carried out a great deal of work.
Perhaps I may now deal with the point that underlies much of this issue—and it is worth stating what is in the Bill. I do not think that we can address the kind of negligence issues that have been raised by the noble Baroness in terms of basic care. I have said on many occasions, and I do not wish to weary the noble Baroness or anyone else, that those issues will need to be, and should be, addressed properly. What we have put in the Bill is a new criminal offence of neglect. That will capture professionals, as well as others, who withhold vital care and treatment from a patient in need. That is a substantial step forward, which recognises the importance of that issue.
My Lords, I welcome that provision and I am grateful to the Government for having included it. If, for example, a cup of tea was put aside and the patient could not reach it because of his incapacity, that would now be a criminal offence. I think that the Minister is right to remind us that that provision is in the Bill.
My Lords, I am very grateful to the noble Lord. The provision is important because it is precisely about that point, and we should recognise that. The noble Baroness should take some credit for it, and rightly so.
I want to finish by setting out our three basic reasons for resisting the amendments. The issue of the way in which they are drafted goes back to what I said to the noble Baroness, Lady Chapman, at the beginning of the debate about the effect of words. Often when we discuss amendments, I know what underlies them but it is partly my job to explain what the amendments would do if they were included in the law. They would, in fact, force on people in their final days non-beneficial provision of artificial nutrition and hydration and other forms of life-saving treatment, regardless of what was in the patients' best interests. I return to that point as the central plank of my argument.
Sometimes in a palliative care setting—the noble Baroness, Lady Murphy, will know this better than most—it is in a person's best interests for treatment to be withheld because it would confer no real benefit. Doctors balance benefits and burdens when determining whether a treatment is in the best interests of a patient. I remember that in Committee the noble Baroness, Lady Finlay, said that such decisions are determined almost on an hourly basis as the patient moves towards death in his final days. One is then balancing all the time.
In some end-of-life situations, it cannot be assumed that all or any treatments should be given just because they are available. That is not always the right thing for the patient, but the amendment would require that. I do not think that decisions to withhold life-sustaining treatment are taken lightly; they are taken with great love and care. In situations where the patient is dying, it is critical that he does not suffer a painful or undignified death. In palliative care situations, patients are not, and will not be, denied necessary hydration. Suffering is caused only where the care is negligent, and I repeat that that offence is now included in the Bill.
Secondly, under the amendment, patients would not be able to make an advance decision to refuse any form of life-sustaining treatment. That would lead to the situation that I described on Tuesday—it may seem a rather bizarre example but that would be the effect—concerning someone who had, for religious reasons, decided not to receive a particular treatment. That would be okay while the person had capacity but, under the amendment, when he lost consciousness and thus capacity, the advance decision would not count and he would be given the treatment. So it is possible that someone who was going in and out of consciousness would not have his religious views respected, and I would not wish to see that happen. Not only would the amendment affect those who have religious concerns but it would limit the personal autonomy for which we all strive and would create a disparity between what one can refuse contemporaneously and what one can refuse in advance.
Thirdly—this has been said many times and so I shall be brief—the amendment would overturn the Bland judgment. We would not wish to see that happen to that judgment, and the subsequent 36 cases, because it provides a good way of resolving a difficult and heart-breaking situation.
I have taken some time and I hope that my explanation has been helpful to the House. In the spirit of our continuing debates, I hope that I have answered as many of the points as possible and that the noble Baroness, Lady Chapman, will feel able to withdraw her amendment.
My Lords, I thank the Minister for her very detailed response. It is not my intention to overturn the Bland judgment, and I understand what she is saying. I still have concerns about non-dying patients having some treatments withdrawn but, because I hear what the noble Baroness is saying, I shall go away and rethink the matter. For now, I beg leave to withdraw the amendment.
My Lords, we now turn to a group of amendments which respond directly to particular concerns raised by the Joint Committee on Human Rights. The committee wanted the Bill to confirm expressly that actions amounting to the deprivation of liberty do not fall within the definition of "restraint" used in the Bill. The amendments achieve that.
Amendments Nos. 11, 37 and 48 clarify that Clauses 6, 11 and 20 do not provide a defence against deprivation of liberty. That means that no one acting in connection with care or treatment under Clause 5, nor an attorney or deputy, may deprive a person who lacks capacity of his liberty. "Restraint" includes only restrictions of liberty.
Amendments Nos. 109, 112 and 108 are merely consequential amendments to ensure that the Bill defines the necessary terms of "public health authority" and the "human rights convention". We recognise that the distinction between restriction of liberty and deprivation is complex, and the Bournewood case is relevant here.
The European Court judgment in the Bournewood case made clear that the question of whether someone has, in fact, been deprived of liberty depends on the particular circumstances of the case. Specifically, the court said at paragraph 89 of the judgment:
"The distinction between a deprivation of, and restriction upon, liberty is merely one of degree or intensity and not one of nature or substance".
As noble Lords are aware, in the Bournewood case the European Court said that further procedural safeguards must be in place whenever deprivation of liberty is used in a person's best interests. I know that noble Lords will want to raise many more detailed concerns in relation to the Bournewood judgment, and I look forward to discussing them fully in relation to our Amendment No. 107. Meanwhile, I hope that this group of amendments addresses the concern of noble Lords and the committee that "restraint", as defined in the Bill, does not cover actions amounting to deprivation of liberty. I beg to move.
moved Amendment No. 12:
Page 5, line 2, at end insert—
"(3) Subject to subsections (1) and (4), a contract purportedly entered into by a person who lacks capacity to enter into the contract is not enforceable against that person and may be set aside on an application to a court made by or on behalf of that person.
(4) Subsection (3) shall not apply if the following conditions are satisfied—
(a) the terms of the contract are fair to the person lacking capacity,
(b) no other party to the contract knew or should have known that that person lacked or might lack capacity, and
(c) failure to enforce the contract against that person or the setting aside of the contract will cause loss or hardship to another party to the contract.
(5) It shall be for a party seeking to enforce the contract or objecting to its being set aside to prove that the conditions in subsection (4) are satisfied."
In English law, a contract entered into by a person lacking capacity can be set aside on his or her behalf only if the other party to the contract knew of the incapacity when he or she entered into the contract. In Scotland, I understand that any contract entered into by a person lacking capacity is unenforceable by the other party, even if the other party was not aware of the lack of capacity at the time of making the contract. According to the CAB, that system works satisfactorily in Scotland. Businesses in Scotland do not pursue claims against customers who turn out to have lacked capacity. It seems to me that, in fact, English law does not go far enough, although Scottish law may go a little too far in making all contracts unenforceable in that situation. I moved an amendment in Committee. I withdrew it after debate and have now returned with what I think is a somewhat improved version.
In its briefing, the CAB refers to two contexts where there is an abuse of people lacking capacity and where remedies in English law are inadequate. The first and obvious one is where someone grossly overcharges a person lacking capacity for supplying goods or services or grossly underpays for property which he acquires from the person lacking capacity. The other context, which is perhaps a little less obvious, is where the person lacking capacity buys at a reasonable price goods or property which are inappropriate or for which the person buying them has no need.
In Committee, I referred to one particular example from my own experience at the Bar involving a man who owned a small hobby farm and bought gigantic cowsheds to install on the farm, threatening ruin to his family. Steps had to be taken to make that impossible.
Our amendment starts, with proposed new subsection (3) of Clause 7, by providing that any contract entered into by a person lacking capacity is unenforceable against that person and can be set aside by him or her. Of course, the person lacking capacity, or persons acting on his behalf, would always be free to enforce the contract against the other party if it was favourable to the person lacking capacity.
Subsections (4) and (5) of the amendment provide for an exception from the rule that a contract is voidable where certain conditions are satisfied. I shall take my cowsheds example and show how those conditions apply.
The first condition is that the terms of the contract are fair when looked at independently of the surrounding circumstances. As far as I know, the cowshed case involved sheds that were sold at the market price and the terms of the contract were perfectly normal; they were such as would have been insisted on by the supplier with anyone else. So the first condition there is satisfied.
The second condition is that the other party was not aware of the buyer's lack of capacity and had no reason to suspect it. I cannot say whether that condition was satisfied in the cowshed case. Was the buyer's behaviour so strange as to raise doubts about his capacity? Was enough known by the provider of the cowsheds about the size of the farm or the herd involved to indicate that the sheds were wholly inappropriate? We do not know whether there was anything which required investigation.
But, even if there is no cause for suspicion and both the first and second conditions are satisfied, the third condition also has to be satisfied. In the cowshed case, the supplier of the sheds must still show that he would be worse off if the contract were set aside than if the contract had never been entered into. This condition would be satisfied, of course, if the supplier had started building the sheds, had paid employees for working on them and had used materials which could not be recovered. The condition would not be satisfied if the contract could be cancelled at an early stage, before work was done on site or other substantial expenses had been incurred in performing the contract.
I believe the amendment gives protection to people lacking capacity while protecting also the interests of other parties to the contract who have acted properly and would suffer loss through its cancellation. I hope the Government will look on the amendment favourably and accept the principle behind it. I beg to move.
My Lords, it was amusing to see the noble Lord, Lord Roper, arrive in the middle of the cowshed explanation.
I have met with officials from the Department of Trade and Industry and my own officials to talk through these issues. I know that this is something about which the noble Lord, Lord Goodhart, feels strongly. I acknowledge, as does the noble Lord, that there is a tricky balance between empowerment and protection. We have also had discussions with the CAB, which we know is interested in this matter.
On the one hand, we are trying to protect people who lack capacity from being bound by an inappropriate contract into which they may have entered; on the other hand, we are trying to empower people to take as many decisions as they possibly can. These include, perhaps, people with fluctuating capacity due to mental health problems, or people in the early stages of a degenerative disease who can make some decisions and not others. These matters have to be, in a sense, weighed in the balance.
I cannot accept the amendment at this stage because, when I spoke to the officials about this matter, we were very uncertain about what would happen; we did not feel that we had the evidence before us of what the consequences might be. We need to consider whether the existing protections are inadequate and what would be the genuine practical benefits of the amendment. We also need to consider what its potential impact would be on business. That is a matter of great concern to the Department of Trade and Industry in particular.
I am also worried about the risk of disempowering people; that traders might take risk averse action if they are fearful that somehow they will not be able to enforce a contract. We have spoken before about discriminatory issues and how people feel about other people. For example, a person with a learning disability, who is trying to make a contract with someone for the supply of goods, might find himself in a position where the trader is fearful that it will be decided that it is not a real contract and therefore will not do business with that person.
I am sure the noble Lord, Lord Goodhart, will accept that there is also the possibility that his proposal could be used in fraud; that people could claim that they lacked capacity. We must remember that, under the Bill, lacking capacity could mean that you were blind drunk in an A&E ward. You can lack capacity for all kinds of reasons. Therefore there could be fraud where people claim that at a particular moment they had a mental health problem, lacked capacity, and therefore are not liable for what they have just purchased or what they have just done.
The impact goes wider than consumer contracts; it could also affect personal relationships between individuals. These issues affect all vulnerable people, not only those who lack capacity, and I am keen to consider also the wider group.
On a previous occasion I referred to some of the issues we have been addressing, particularly in the Department of Trade and Industry, in regard to doorstep selling—an issue about which I feel very strongly—the unfair commercial practices directive and the Consumer Credit Bill.
I recognise that this is an important matter. I have committed my department—I wish to put this on the record—to carrying out scoping research work to assess whether there is a problem arising from the current law and, if so, the extent of that problem. This will take into account people who lack capacity and the broader group of vulnerable consumers more generally.
The DCA will also commit to working with the Department of Trade and Industry as part of the implementation strategy of the Bill to ensure that policy development within the DTI on consumer strategy, credit and indebtedness is sensitive to the needs of consumers who lack capacity.
I hope that that commitment will satisfy the noble Lord that I accept and recognise the principles he is seeking to develop. However, I cannot accept the amendment because I fear that we might accidentally do something around the empowerment issues, or something which will have a detrimental effect on business, because we have not had time to scope out the problem. On the basis of the commitment I have given, I hope the noble Lord will feel able to withdraw his amendment.
My Lords, I am grateful to the noble Baroness. I welcome the fact that her department will undertake a scoping inquiry into the matter. It is an issue of some importance. Although there is a possibility that a situation under the amendment could be a source of abuse, equally there is no doubt that the law as it now stands could be a source of abuse in the other direction.
I hope that in due course something will come of this. However, as I am sure the noble Baroness anticipated, I never intended to push the amendment to a vote. I hope that not too many other farms will be covered in enormous cowsheds in the future. I beg leave to withdraw the amendment.
My Lords, this is not quite such an entertaining amendment—there is not a cowshed in sight—but, nevertheless, it is important.
In moving Amendment No. 13, I shall speak also to Amendments Nos. 16, 42 and 47, all of which concern attorneys, deputies and the court. I am very pleased to bring the amendments forward because currently the Bill makes specific reference only to Clause 4, the "Best interests" clause. The amendments are a response to the very helpful concerns raised by the noble Earl, Lord Howe, the noble Lord, Lord Kingsland, and the noble Baronesses, Lady Greengross and Lady Barker.
We believe that ensuring that attorneys, deputies and the court follow the principles in Clause 1 is vital if people who may lack capacity are to be given the opportunity to make as many of their own decisions as they can. This, of course, is the burden of the Bill. They are already required to do so by the provisions of the Bill, but we agree with noble Lords that further emphasis would be helpful. This is what we have done.
Let me reiterate that the principles are designed to empower and enable people who, in the past, might have had their lives taken over, their freedoms restricted and their decisions taken from them, albeit on the very good intentions of others. We want to ensure that people are enabled to make as many decisions for themselves as possible, so that they can lead as full a life as possible. The extension of those five key principles set out in Clause 1 make that very much more likely. Therefore, I beg to move.
My Lords, I thank the Government for having responded so positively and constructively to the concerns that I and others raised in Committee. This added emphasis adds value to the Bill. I am grateful to the Government for listening.
moved Amendment No. 16:
Page 37, line 5, leave out from "the" to "4" in line 6 and insert "duties imposed on a donee of a lasting power of attorney under sections 1 (the principles) and"
On Question, amendment agreed to.
[Amendments Nos. 17 and 18 not moved.]
moved Amendment No. 19:
Page 38, line 5, after "severally" insert "in respect of any matter"
My Lords, these amendments concern the Court of Protection and deal with some small, but quite significant, issues, some of which were raised by my noble friend Lord Christopher. We touched on this on Tuesday. Since then, I have had the benefit of a discussion with the master of the court, Master Lush, and we have sought to resolve some of the outstanding issues that he had. We shall resolve them once the Bill is on the statute book.
These amendments allow the Court of Protection to decide whether a lasting power of attorney is valid. That means that the court will be able to "blue pencil" a section of a lasting power of attorney that is ineffective or illegal and leave the remainder of the lasting power of attorney to stand. I have discussed this issue with my noble friend Lord Christopher and I feel sure that he would welcome this amendment, were he here. It is certainly something that the master of the court was concerned that we should deal with. The court can direct the public guardian not to register a lasting power of attorney whose flaws would make it inoperable. That is an important safeguard.
Amendment No. 29 enables the Court of Protection to make a decision where there is an objection to a lasting power of attorney. That is particularly important when objections are not matters of fact; for example, if someone objects because they think that the proposed attorney lacks capacity.
In Amendments Nos. 19, 35, 36, 40, 41 and 45 we are ensuring that a donor of a lasting power of attorney has all possible options when wanting to appoint more than one donee. So a donor can specify, on different matters, that all the donees must act together or that any or all of them may act. The donor could say, for example, that any of their chosen attorneys can act in relation to most matters, but, if they were selling the donor's house, they must all act together. Amendment No. 45 gives the same flexibility to the Court of Protection when it appoints deputies.
Amendment No. 43 will help to ensure that the arrangements for supervising court-appointed deputies are robust, but I hope not too bureaucratic. The court will be able to grant powers to the deputy on condition that it first obtains the public guardian's consent for certain actions. It is important that the deputies are, of course, properly supervised, but it would be disproportionately burdensome and costly to require them to apply to the court all the time for authority to act. That supervisory role should properly be undertaken by the public guardian.
Finally, Amendments Nos. 117 and 118 clarify that it will no longer be possible to create an enduring power of attorney once the lasting power of attorney provisions in the Bill come into effect. I beg to move.
My Lords, once again, I thank the Government for introducing these amendments, which I agree are beneficial to the Bill. They provide welcome flexibility. The safeguards are still there, but at the same time the Government have ensured that the bureaucracy and procedural aspects are kept to the absolute minimum. I am very happy to endorse the inclusion of the amendments.
moved Amendment No. 20:
Page 38, line 16, leave out "11" and insert "10A"
On Question, amendment agreed to.
[Amendments Nos. 21 to 25 not moved.]
moved Amendment No. 26:
Page 38, line 43, at end insert—