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Lord Lester of Herne Hill: My Lords, before the noble Lord sits down, and although I have no final word, perhaps I may say that I agree with every word that the noble Baroness, Lady Warnock, said, and have nothing to add.

8.40 p.m.

Lord Alton of Liverpool: My Lords, notwithstanding that intervention by the noble Lord, Lord Lester of Herne Hill, the fact remains, as the noble Lord, Lord Hayhoe, has told us, that there will of course be some confusion outside this House about the issues which are before us, not least because many will recall that hard cases make bad laws. Notwithstanding what the noble Lord, Lord Alderdice, said, there are some

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undying principles, one of which is the sanctity of human life. Those principles are timeless. They do not need to be reviewed from generation to generation.

I was struck that in the previous Session your Lordships under the chairmanship of the noble Lord, Lord Walton of Detchant, produced such an excellent report on euthanasia. After 20 oral hearings and over 60 written submissions, unanimous agreement was reached. I am disappointed that there is such an orchestrated and calculated attempt to resurrect the issue and to try to legalise the killing of the infirm.

The noble Lord, Lord Lester, instigated today's debate, because he claims that the law in relation to the palliative treatment by doctors and nurses of the terminally ill is unsatisfactory. He of course acted as amicus curiae (an impartial friend of the court) in the tragic case of Tony Bland. That Liverpool supporter, desperately injured at Hillsborough in 1989 was, as noble Lords will recall, starved to death. The noble Lord argued:


    "the artificial prolongation of corporeal existence"

may degrade and demean humanity. He stated that life was only valuable as a vehicle for consciousness. That defines humanity and equates life with the ability to think. Insensibility becomes a fate worse than death itself and even becomes a disqualification for life.

In the Bland judgment in 1992 the noble Lord won the day, despite a number of Law Lords expressing serious reservations about the case. The noble and learned Lord, Lord Mustill, stated:


    "the withdrawal of nutrition and hydration was designed to bring about death. That was why it was done".

The noble and learned Lord continued:


    "It was decided that it was time he died".

For the first time then the courts crossed the line and legally sanctioned the intentional killing of a patient; that is, euthanasia. The extension of the noble Lord's argument, logical enough if one accepts the basic premise, came in a recent edition of the Lancet. A leading physician, Sir Raymond Hoffenberg, suggested that patients in a persistent vegetative state should be given lethal injections and their organs taken for transplants.

So now we have it. If someone becomes insensible we can avoid the costs and inconvenience of hospices, about which the noble Lord, Lord Stallard, and others have talked, and rather than waste one's mortal remains by starving one to death, one will be used instead as a rich source of organs. The flaws in the argument revolve around questions of consent, the commissioning of doctors and nurses as killers, and the fundamental question of what constitutes life itself.

When Tony Bland was injured at Hillsborough, three people who were then my constituents were killed. One was a child. Another, Andrew Devine, like Tony Bland, went into a deep coma. In the Guardian newspaper of 26th March this year it was reported that after eight years Andrew Devine had become aware of his surroundings and was communicating with his family. The Guardian reported also on another case, of a man who had been thought to be in a state of PVS for some

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seven years. Last March, Andrew Devine's family was able to talk publicly about the improvements that had taken place in his life. Imagine the appalling pressures which would have been placed on his family if the present presumptions in the law were overturned. There is a clear line between killing and letting die. The present law recognises that. "Care" and "kill" cannot be used as synonyms.

Last month, the noble Lord, Lord Lester, no longer an impartial adviser to the court, but now retained by the Voluntary Euthanasia Society, went to the court. He tried, as we have heard, to obtain permission for the doctor of Annie Lindsell, who suffers from motor neurone disease, to administer drugs which would relieve her mental and physical distress during the final stages of the disease. The case collapsed because it was agreed that under the principle of double effect no court ruling was needed.

Collapsed court cases which uphold the existing law do not come cheap. In an appeal letter, the Voluntary Euthanasia Society says that the case could cost some £50,000. Out of the jaws of defeat, as the noble Lord, Lord McColl, said in a speech with which I agree entirely, the noble Lord said:


    "We won what we wanted".

What is it that the VES wants?

Dr. Michael Irwin, chairman of the VES, was pictured in the summer holding a customised exit bag, and claimed to have helped 50 people die. He told the Daily Telegraph:


    "I do not believe I can be convicted".

Ms. Lindsell herself says that she wants "medically supervised voluntary euthanasia".

As the BMA has trenchantly recognised, euthanasia is morally, legally and ethically unacceptable. In a civilised society it should stay that way.

8.45 p.m.

The Duke of Norfolk: My Lords, I congratulate the noble Baroness, Lady Pitkeathley, on her maiden speech. There is a happy tradition in this House that every maiden speaker is helped. The House stays silent. The doors are closed. Then Peers say how much the speaker has contributed, and how wonderful it is to have such a speaker with us. That may be a formality, but in the noble Baroness's case that is a meaningful sentiment. I thank her very much.

I thank also the noble Lord, Lord Lester, for bringing this subject to our notice. I do not agree with almost everything he has said. He was concerned with the court case of Annie Lindsell. The court held that there was double effect. The noble Lord then apparently said that he did not believe in double effect and that it was incoherent to talk about it.

That is not the case. The noble Lord criticised the judge's decision. The case was then withdrawn. The Voluntary Euthanasia Society backed Annie Lindsell's case. What is more important it supports the Law Commission's current proposals on mental incapacity. That would make advanced refusals of treatment--

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living wills--legally binding, so making euthanasia available to all. Such a concept amounts to assisting suicide.

The proposed Bill also accepts research procedures on patients without their consent. That may well be contrary to European and international law. I must pay tribute to Dame Cicely Saunders, as the noble Lord, Lord Hayhoe, has done. She has done such wonders in this field. She chairs St. Christopher's Hospice. She is a qualified doctor and qualified in many other medical ways. We should all realise that she is the queen of the modern hospice movement.

Dame Cicely Saunders says so simply that the hospice movement helps people to live until they die. That is a simple but wonderful sentiment. I am well acquainted, through my wife's charity--Help the Hospices, for which she raises over £1 million a year--with the fact that hospices assist the terminally ill to die through palliative care without pain. We have an amazing 270 hospices in the country now. We have become, as has been said, the envy of the world with that movement. People flock to England to study us to learn how we do it.

As a Catholic Christian I believe that doctors should continue to follow the ethics of the Hippocratic Oath, to help patients medically and, where possible, to preserve their life. Life is sacred. To change our present laws to allow voluntary or, worse still, involuntary euthanasia, would be a step down a slippery slope which could lead to the killing of the unwanted. That is a horrid thought.

I believe that if we allowed euthanasia to be legal we would be going in the same direction as Holland. The decision in Holland is leading to disastrous situations. I do not want to be dramatic, but if you do not treat life as sacred it leads to doing what Hitler did in the war. I have been to Belsen and Buchenwald and I believe that it is vital to stop sliding down that slope. Do not let us ever bring euthanasia into our laws.

8.51 p.m.

Lord Walton of Detchant: My Lords, I, too, congratulate the noble Baroness, Lady Pitkeathley, on her maiden speech. I assure her that in the deliberations of the Select Committee, which I had the privilege of chairing, we were very conscious of the need to introduce the concept of the healthcare team, including not only doctors and nurses but also the carers and family members who are all concerned with the management of the patient. In our unanimous decision, we had no doubt whatever that we did not wish to see the legalisation of voluntary or non-voluntary euthanasia to be defined as the deliberate killing of a patient either at the patient's request or, in the incompetent individual, non-voluntary euthanasia for other reasons. We were strengthened in that resolve by what we observed during our visit to Holland.

While we rejected legalised euthanasia we were wholly supportive of double effect. Admittedly, that concept has been criticised by certain philosophers, but we took the view that the professional judgment of the healthcare team could be exercised to enable increasing doses of medication--whether analgesics, sedatives or

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both--to be given in order to provide relief, even if that had the secondary consequence of shortening life. The essential question was that of distinguishing between motive and intention. If the motive is to relieve pain, distress and suffering with no intention to kill we believe that practice to be wholly acceptable both in medical practice and under the current common law.

I believe that the case which the noble Lord, Lord Lester, discussed tonight and in which he was involved did no more than to strengthen the acceptance of that concept in common law which arose as a result of Lord Devlin's judgment in the Bodkin Adams case many years ago. Like many others who have spoken tonight, I commend the work of the hospice movement, of the palliative care movement. It is not delivered only in hospices as buildings; it is a philosophy of medical care and management which extends widely throughout the country and out into the community.

I do not wish to elaborate on those points because the time is short. However, I disagree with the noble Duke on the issue of advance directives. They are not concerned at all with suicide. The advance directive will enable patients to express in advance their individual preferences and priorities in respect of treatment should they subsequently become incompetent. It is no more and no less than that. They are being increasingly accepted in common law. However, I do not wish--and the BMA agrees with me--to make them legally binding if only because developments in medical treatment may make their content no longer appropriate when the time comes to consider whether they should be relied upon in management.

I disagree with the noble Lord, Lord Alton, on the issue of the Bland case, where two notable Roman Catholic theologians writing in the Tablet said that the withdrawal of artificial nutrition and hydration in such cases was to be seen as an omission which was not an intending of death but a refusal to continue with inappropriate means of life preservation. However, that issue gave my Select Committee considerable concern. There were those who believed that the withdrawal of hydration and food was the withdrawal of a basic human right. In the end, we decided to recommend that there was no obligation to continue with treatment which added nothing to the well being of an individual as a person.

We would wish the Government to comment upon the major recommendations which we made towards the end of our report to the effect that there was a need for a newly established judicial tribunal, perhaps established along the lines of an expanded court of protection, to examine issues in cases of, for example, the persistent vegetative state.

This has been a useful debate. There is a great deal of biased, ill-informed and misguided comment in the press to suggest that doctors are practising euthanasia. All the evidence that I have been able to obtain suggests that they have been practising double effect. That has been badly distorted in the public press. I believe that euthanasia, whether voluntary or non-voluntary, is abhorrent and I should never wish to see the law of this country changed to legalise it.

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8.55 p.m.

Lord Ashbourne: My Lords, I, too, thank the noble Lord, Lord Lester of Herne Hill, for initiating the debate. I have always taken a close interest in developments within the medical field, especially those developments which have a particular bearing on people with disabilities. As some of your Lordships may know, I have a handicapped son and I am concerned about the care of people with disabilities.

Since 1967, when Dame Cecily Saunders founded the modern hospice movement, about 800 specialist palliative care homes and units have been developed in this country. We are widely viewed as the leader in advancing all aspects of care for the terminally ill. The case was well made by the noble Lord, Lord Hayhoe, and the noble Duke, the Duke of Norfolk. Indeed, many doctors and nurses from Europe, and other countries beyond, now travel to the United Kingdom to learn from our experience.

I appreciated the intervention of the right reverend Prelate the Bishop of Southwell in his balanced and authoritative speech. Furthermore, I enjoyed the admirable and well informed maiden speech of the noble Baroness, Lady Pitkeathley.

The law relating to the treatment of the terminally ill has been in the news recently. Indeed, the noble Lord, Lord Lester, who introduced this Unstarred Question, played a leading role in a recent case. I do not wish to go into the detail of that particular case, but I would like to quote from a letter published in The Times of 10th November in the aftermath of that case in the High Court. The letter, written by David Oliver, Medical Director of the Wisdom Hospice in Rochester, states:


    "A person with a terminal illness should not fear that the only choice is between enduring a distressing death or having their life ended. With good palliative care, addressing the physical and psycho-social issues, death for people with motor neurone disease does not need to be distressing. Symptoms can be controlled by the careful manipulation of medication, without necessarily shortening life".

I believe that it is the job of doctors and nurses to treat and to care and we as a society have no right whatever to call on them to kill. Our perceived inability to provide effective palliative care at the end of a patient's life is, I would say, an erroneous one, and being able to make a patient comfortable at the end of life should be the aim of a decent and caring society. It should not step beyond that and make it into an excuse for assisted suicide.

We should not now be calling into question the criminal law and medical practice in relation to palliative treatment. The law in this area is absolutely clear. We should instead concentrate on the great advances that have been made in palliative medicine and question instead the Government on their plans to help develop further this important area of medicine.

8.58 p.m.

Lord Meston: My Lords, with the arrival of the noble Baroness, Lady Pitkeathley, once again carers have a voice in this House. We sadly lost that when we lost the late Lady Seear and Lady Faithfull. For that reason alone, the noble Baroness is very welcome.

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I had the privilege of serving on the Select Committee on Medical Ethics, which considered a wider range of questions than that posed by my noble friend, which focuses on the interaction of the existing criminal law and on medical practice by doctors and nurses. It is emphatically not a Question about legalising euthanasia or any other form of mercy killing. Certainly I do not understand my noble friend to be arguing for a change in the law, and indeed, I was saddened to hear it suggested, in particular by the noble Lord, Lord Alton, that that was the case. I understood him to be arguing for a change in the law in so far as he did not accept the outcome of the Bland case in which, I would remind your Lordships, the judges at every level acceded to the application before the court.

Personally, I remain loyal to the conclusions of the committee so long as those conclusions are acceptable to the doctors who have to take those decisions and acceptable to others in the healthcare teams. The BMA is properly concerned about preserving the doctor-patient relationship. Doctors want to be seen as people who kill pain, not patients. My noble friend sought clarity for the medical profession and for those who insure it, who advise it and for prosecutors and coroners and patients and their families. They are all entitled to clarity in those difficult and borderline cases. I support my noble friend's call for guidance.

The noble Lord, Lord McColl, asked why it was necessary to go to court in the Lindsell case. I know as little about the facts as perhaps the noble Lord, Lord McColl, but I presume it was because the doctor and the hospice concerned felt unsure of their position and wanted the sanction of the court. It was not for any other motive.

The criminal law, inescapably, is concerned with concepts of intention and causation. The doctrine of double effect has been criticised as sophistry and dependent upon a narrow definition of intention. But it does at least allow a doctor to justify the giving of drugs to alleviate pain which he realises will or may hasten death provided that doctor has confined himself to the question: how much pain relief does this patient now require?

In the trial of Dr. Arthur, the judge directed the jury to think long and hard before concluding that what was standard medical practice was a criminal offence. But that of course begs the question of what is appropriate medical practice in a difficult and borderline case. In the vast majority of cases, doctors and carers can avoid criminal liability because of the doctrine of double effect and because in this country we have a strong and widespread hospice movement and a good system of palliative care, allowing most people to achieve a pain-free death.

My noble friend confronts the difficult minority of cases in which pain and distress are not easily avoided by palliative care; where doctors have to take greater risks and still wish not to be charged with having intended to cause an early death. I do not believe in slippery slope arguments. I understand my noble friend to be seeking a foothold on the slippery slope. The question for the Government must be whether there is

20 Nov 1997 : Column 742

sufficient guidance available to doctors from professional bodies, even if that is a guidance which does not appease those who support voluntary active euthanasia or doctor-assisted suicide. We do not want a compromise such as in the Netherlands which is based only on vague guidance and an ambiguous legal framework. I regret it may only be a matter of time before there is another case involving someone like Dr. Cox, who was fortunate in avoiding a charge of murder as distinct from attempted murder and, had he been convicted of murder, would have faced a mandatory life sentence.

A partial answer may be to give status to advance directives. A partial answer may be also to give some statutory effect to the doctrine of double effect such as happens in South Australia where statute allows doctors to give life-shortening treatment to the terminally ill with the intention of relieving pain and distress provided that the patient consents; that it is administered in good faith and without negligence; and that it is administered in accordance with proper professional standards of palliative care.

9.4 p.m.

Lord Williams of Mostyn: My Lords, I thank the noble Lord, Lord Lester, for introducing this debate and, in particular, I offer my congratulations on a notable maiden speech.

I have enormous respect for everyone who has spoken this evening and for the views expressed. The question asked by the noble Lord, Lord Lester, is quite unambiguous. It is to ask the Government:


    "whether they are satisfied with the current state of the criminal law and medical practice in relation to the palliative treatment by doctors and nurses of terminally ill patients".

I shall give the answer as directly as I can.

The Government are satisfied that the criminal law and medical practice are appropriate. We do not support the legalisation of euthanasia or mercy killing or any fancy label that may be attached to those practices. I go further with statements of principle which will necessarily be brief. They are not discourteous but my time is limited. This Government believe that matters of clinical judgment are for the professional judgment of the professional bodies and the clinicians involved and not for Government. It is foolish, and I believe it is wrong, for Government to attempt to intervene in those areas.

Questions have been asked about the stance of the Crown Prosecution Service. There is no difficulty whatever about its stance. It states:


    "A doctor may not take steps positively to end a patient's life even where such a course of action is consented to by the patient".

I do not detect any difficulty there. The CPS is well aware of the Bland case where the noble and learned Lord, Lord Goff, stated authoritatively that it is an established rule of our law that a doctor may, when caring for a patient who is, for example, dying of cancer, lawfully administer pain-killing drugs despite the fact that he knows that an incidental effect of that application will be to abbreviate the patient's life. I am not a doctor; my brother is. I should not have thought that he would

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have the slightest difficulty in understanding either of those two plain, simple concepts. I am bound to say that I agree entirely with the thrust of what the noble Lord, Lord McColl of Dulwich, said.

I do not believe that the doctrine of double effect is at all a sophistry. It is a recognition that in those areas, at those times of great distress, we are dealing with delicate matters. They are matters of fine judgment. They are matters which call for legitimate judgment for clinicians and carers.

The ruling in the Bland case was quite plain: that artificial hydration and treatment, as the noble Lord, Lord Walton of Detchant, reminded us, could be categorised as medical treatment which could lawfully and legitimately be withdrawn if it was not in the patient's best interests to continue to treat him in that way. These are not easy answers, but they are answers that can be arrived at conscientiously by doctors and others who care for the terminally ill.

Perhaps I may, without presumption, entirely endorse the tributes paid to those who deal in hospices and elsewhere with the palliative care of the terminally ill. In fact, it is a fortunate, happy coincidence that on Tuesday of this week my noble friend Lady Jay, the Minister who has responsibility for this area, paid specific tribute to the work of hospices. I respectfully endorse her words. She said:


    "Successful partnerships in hospital and palliative care have produced the principles and the practice of palliative care in hospitals, at home, in nursing homes and, of course, within specialist palliative care units or hospices".

She said to those who work in the area:


    "You have done this by working with other statutory and voluntary bodies across professional boundaries"--

and this endorses what the noble Lord, Lord Alderdice, and the noble Baroness, Lady Pitkeathley, said in their remarks--


    "always keeping the patient, the family and the carers as the focus. These principles are precisely those on which we wish to move forward towards our goal of high quality compassionate healthcare".

The noble Lord, Lord Lester of Herne Hill, indicated that the law was difficult or obscure; it is not. A question was raised as to whether a specific court needed to be set up to deal with such issues. I do not believe that a specific designated court is required. I personally pay tribute to the President of the Family Division, Sir Stephen Brown, because he has given judgments which he must recognise are bound to be criticised by one spectrum of the argument or another. He has to maintain the delicate balance. In a case to which the noble Lord, Lord Lester, alluded, he said that no declaration was required. He made a declaration earlier this week, as the noble Lord pointed out, in the case of a very small infant.

The courts do approach these matters with scruple and with care, recognising, as I believe one must, that whatever answer a judge comes to is bound, in one

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sense or another, to be partly wrong, as none of us is divine and, therefore, infallible. However, as a government, we believe that human life is entitled to the fullest, deepest respect. We do not believe that any doctor, upon his conscience and oath, ought to be entitled to administer treatment to any patient in his or her care with the intention of bringing about death. That is not sophistry; it is moral philosophy. Sometimes the consequences will be harsh for the dying patient and sometimes--and I say this with every care--it will be harsher for the relatives of the dying patient. But the fact that a human judgment upon a moral and professional basis brings about harsh consequences does not entitle us to divest ourselves of our responsibilities.

It is said that there is not enough guidance for clinicians. I respectfully disagree. I shall not weary your Lordships at this hour with details because many noble Lords will have the list more readily available than I. But the care of the dying is a central part of the training of doctors. The hospice movement has produced paper after paper dealing with such issues. The sort of debate that we are having this evening informs those--and I say this, again, carefully--who may wish to be informed. However, not everyone is in that happy state.

I do not believe it to be a complacent statement to say that, in the interrelationship between what is lawful--what is permitted--as prescribed by law and the question of clinical judgment, the law must respect the clinician and the clinician must respect the law: both, of course, must respect the dying. They are not easy resolutions to be brought together but they are not impossible. I believe that the examples given this evening, whatever the outcome of the judicial process, illustrate that fact.

We should also bear in mind--and I respectfully concur with what the noble Lord, Lord McColl of Dulwich, said--that doctors, carers, and nurses, in conjunction with concerned relatives, are coming to these conclusions day in and day out. Occasionally, a headline case goes to court and some of those headline cases then get into newspaper reports. I believe that we have a proper, civilised regime in this country which is as close to being fully acceptable as any of which I know.

Therefore, I return again to the question, having been more economical than I might have been by about three minutes only. The law is perfectly plain. It has been reaffirmed recently in the words of the noble and learned Lord, Lord Goff, which I venture to cite.


    "The position, I believe, is plain to the medical profession. The law knows its duties of protecting the vulnerable and I believe--I say this with infinite respect--that the medical profession knows its duties and responsibilities also."

The question of advanced declarations is in a sense a side-track here because no advanced declaration of wishes, at whatever stage it is given, is capable lawfully to suborn the clinician's true professional judgment.

        House adjourned at fourteen minutes past nine o'clock.

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