Examination of Witnesses (Questions 420-425)|
9 OCTOBER 2003
Q420 Mr Burstow: The point I am making
is that we are talking about the precise drafting of the legislation,
not the situation which arises out of the common law we currently
have. The drafting I have just read to you surely provides a situation
which was not anticipated and as a consequence this directive
in that situation would not have been one which would have been
Dr Craig: Could I come in on this
one? Reading Clause 24 I was filled with horror because section
(2) provides chaos and muddle. I really do not see how the Government
can possibly argue that advance directives should be legally binding
when there are so many situations which undermine their validity.
In an emergency situation in casualty or an acute medical ward
when a junior doctor is called to a crisis situation, he cannot
decide whether Patient A's advance directive is valid or not in
all these various scenarios. It is just totally impractical. May
I also point to the experience in America which shows that in
fact legally binding advance directives do shorten life, they
can be a death warrant, they can cause patients to die unnecessarily
early. There was a paper I read a few years ago which showed that
patients who had signed advance directives died earlier than those
who had not. The Federal Government said, "Great, these are
working", because their aim was to cut health care costs.
The patients who had signed advance directives were dying of things
like (inaudible) after successful hip operations, they were dying
of coronaries because they were not resuscitated, and all this
sort of thing. They are really dangerous. One final point, an
example of when advance directives are dangerous and should be
overridden: a consultant physician had a coronary and he survived
initially and he told his junior doctor he was not to be resuscitated.
He then had a cardiac arrest and he was resuscitated and this
happened four times. That man is now enjoying a happy retirement
and he is thankful that the junior doctor did override his wishes
and he said to a colleague, "Do you know, that was the only
occasion that young man ever gainsaid my wishes."
Q421 Baroness Knight of Collingtree:
I wanted particularly to ask a question of Archbishop Smith, if
I may. It deals with the Catholic Bishops' Conference Statement
which has been presented to us. It actually started with the suggestion
by the BMA, which has no force of law behind it at all, that giving
food and drink is treatment. The Conference stated, "Existing
case law already permits patients in a persistent vegetative state
to have `treatment' . . . withheld with the aim of causing death."
That is actually not true because, as I understand it, the Law
Lords who made this decision made it perfectly clear it was not
to be used as a ground rule, that it could be done to patients
although in fact now we have scores and scores of cases on record
where this is being done to patients. The Conference said, "The
law has been left, in the words of one Law Lord, in a `morally
and intellectually misshapen state', and he was one of the Law
Lords who was dealing with that particular Bland case".
Then you go on to say, "The Draft Bill does nothing to reverse
this unfortunate situation." Would you like to comment on
Archbishop Smith: There is a difficulty
with the Bland case, and I am not going to give all the
details of it because it is complex. In the old days, if I can
put it like that, medical people generally would talk about basic
care, in other words, feeding, hydrating, washing and so on. What
the Bland case appeared to do was to include that basic
care as treatment and there was a confusion there, I think with
respect to the Law Lords, because it is perfectly legitimate for
me as person who is capable mentally and so on to refuse treatment
which others may decide would be in my best interests, but if
I decide, "This is too burdensome for me", it is perfectly
morally and ethically acceptable to say, "That is my choice,
even though I know as a consequence my life will be shortened."
The unethical part, we would say, is, "If I choose to do
that with the specific intention of shortening my life."
Does that help?
Q422 Baroness Knight of Collingtree:
Yes, except I was more interested in those patients who do not
wish to die and are in fact dying through this particular ruling.
That is what I was trying to ask you, whether you think the draft
Bill does address that point which, to me, seems grossly wrong?
Archbishop Smith: No, I do not
think it does. This is one of our difficulties. I do not think
it is clear enough in the Bill. There ought to be some cautionary
element to say, "Even where somebody has got a lasting power
of attorney or general authority, that person cannot act with
the consequence of producing or leading that person to death."
In other words, there must be some restriction on what can be
permitted and what cannot.
Lord Habgood: This was a subject
of great discussion on the Select Committee 10 years ago, and
I think I was in a minority of one in saying that refusal of hydration
and nutrition should not be regarded as equivalent to refusal
of treatment; it was not a form of treatment, it was about basic
care. In the Bland case, it was less undesirable because
Bland had no cerebral cortex, no consciousness, and this was a
quick way to let him die. If the refusal of food and drink takes
place in somebody who is conscious, then it seems to me you are
in a different ballgame altogether. To starve to death is not
consistent with basic care, as I see it.
Lord Rix: I agree.
Baroness Knight of Collingtree: Thank
Q423 Mr Burstow: We have partly picked
up on the other point I wanted to ask, which was this concern
about how you deal with fluctuating capacity which was very much
part of the Church of England's submission, and I think it has
been picked up by other submissions as well. It would be useful
to hear from any of the witnesses of any specific thoughts and
suggestions they have about how to improve the Bill to ensure
there are safeguards in respect of that.
Lord Habgood: Can I go back to
the point I was making at the beginning, namely much depends upon
prognosis and whether the incapacity is judged to be permanent
or temporary. It seems to me that particular provisions of the
Bill need to be written with that dichotomy in mind. If you have
permanent incapacity, it seems to me it is permissible to take
action through the various mechanisms proposed here. If you have
temporary incapacity, it seems to me the aim must be to try to
restore as much capacity as possible in order somebody can make
decisions for themselves.
Dr Howard: It is very difficult
because you are considering fluctuating capacity, and I think
a number of us have said also "fluctuating decisions"
even if you are capacitated. A lot of the problems with this would
not arise if the issue of capacity did not trigger off the full
effects of advance decision making and proxy decision making in
a way which is going to bind the doctor. If advance decisions
were indicative, as I think they ought to be, and if proxy decision
makers were consultees, patient advocates, rather than people
who were in the driving seat making the decisions, I think a lot
of these problems would lessen.
Q424 Mr Burstow: You have made your
views on that very, very clear today. I wonder if there were any
other safeguards over and above those which you particularly want
to be sure the Committee was mindful of in framing its report
and recommendations in due course?
Dr Howard: I agree with Lord Habgood,
in that in clinical situations what we always try to do is enhance
the patient's capacity. That may well mean treating the medical
conditions which are pre-disposing to incapacity, such as chest
infections and so on.
Q425 Chairman: If an advocate is
acting for somebody who is completely incapacitated and advises
the decision, is that so different from an attorney in the same
Dr Howard: The attorney would
actually be making the medical decision according to the Bill.
An advocate or the consultee should be involved in the decision
making process as a matter of good practice. I think this ought
to be placed on a statutory basis. The attorney should be a statutory
consultee, somebody who is recognised under statute law and ought
to be consulted.
Chairman: The questions we have not reached
you have actually answered because we have slightly wandered occasionally
from the actual subject we were on. The only things we have not
reached are the new decision making mechanisms, Questions 4 and
5, and you might like to write to us on them. I think we have
your views now on basic care. If there is anything on lasting
power of attorney, please write to us as well. We have reached
the time to finish, thank you very much indeed, it has been a
long afternoon. We have found it very, very helpful. With Baroness
Finlay first and then yourselves, we have found it a very helpful
afternoon. Thank you very much.