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Lord Carlile of Berriew: My Lords, I am grateful to the noble Baroness for giving way. I am afraid that I do not understand the point that she has been making. The Bill as drafted deals with the doctor's purpose, if we take the doctor as the example. If the patient makes the decision that the nutrition should be withdrawn, that is not the doctor's purpose; it is the patient's purpose. I suggest that plainly the noble Baroness has overlooked the word "his" in the first clause of the Bill.
Baroness Andrews: My Lords, the point I am making is that our current lawcase law and common lawrests on patient consent. That right would be overturned by putting the prior emphasis on the intention of the
On intention and purpose, we have had an interesting debate, with contributions from many sides of the House on the issue of purpose. The implication of the Bill is that the law should consider each and every purpose of the doctor in order to decide whether an action is unlawful. The problem is how to make that work in practice. A doctor can certainly state his or her main purpose in carrying out an action or taking a decision about a patient's treatment. That statement may be sufficient to explain what has been done and the law can judge whether or not that is the case. The Bill invites us to be sceptical and to scrutinise the motive or intent of the doctor. But how can we ever know if the doctor concerned had any other purpose or interest? How can he or she prove otherwise?
The right reverend Prelate gave us many examples of the difference between foresight and intention. The noble Baroness, Lady Finlay, described how difficult it is to predict the outcome of medicine. Where is the line between withdrawing artificial nutrition because the doctor judges that it is futile and a deliberate attempt to harm? What is the evidence that can be brought?
The long title of the Bill speaks of "intention". In criminal law, when juries are asked to consider "intent", factors they may be asked to take into account include the probability of the outcome and the extent to which that was appreciated by the defendant even if it were not their main intention. Therefore, if a doctor knew, as a virtual certainty, that withholding or withdrawing treatment, even at the patient's request, would result in the patient's death, the doctor could still be held to have positively intended the patient's death. I am not a lawyer, but I can see that we are entering something of a minefield.
Secondly, the Bill has other serious implications for the doctor concerned. The noble Baroness, Lady Finlay, spoke of it encouraging defensive medical practice. It would, in some circumstances, mean forcing a doctor to take a decision against his or her professional judgment and to continue with treatment knowing that it was unnecessarily burdensome and of no benefit to the patient. I refer to the speech made by the right reverend Prelate. It is a significant departure from the current position whereby a doctor cannot be obliged to provide treatment or care against his or her professional judgment. It would remove any flexibility in the clinical judgment. We need to think that through very carefully.
I turn to the issue of safeguards. I reiterate that I fully appreciate the intentions of the noble Baroness, Lady Knight, and her deep and compassionate concern to see that vulnerable people are protected. That is what the Bill intends to do and we appreciate the reasons for the shift in the law proposed by the noble Baroness. Like her, the Government are concerned to ensure that vulnerable people are protected. We have gone to great lengths to ensure transparency in how decisions are made regarding the treatment of people lacking the capacity to consent for themselves.
As part of the Good Practice in Consent Initiative, the Department of Health has developed a series of guidance, consent forms and information leaflets on consent to examination or treatment. That sets out very clearly the obligation on the doctor to act in the best interests of a patient who lacks capacity. It also includesthis is significanta form on behalf of adults who are unable to consent to investigation or treatment to record the decision-making process in relation to their treatment. That includes an assessment of the patient's capacity and of their best interests, the reasons for any decisions taken about that person's medical treatment, and the involvement of the patient's familyan extremely important point. It is also designed to emphasise the importance of consent as a process throughout the treatment of the patient. Trusts have been asked to implement those forms. That has been in place since April 2002.
The BMA safeguards referred to by the noble Earl, Lord Howe, and the noble Baroness, Lady Finlay, also set out extra safeguards for decisions. We have heard about them. The guidance on this issue states that all proposals to withhold or withdraw ANH should be subject to formal clinical review by a senior clinician with experience of the condition from which the patient is suffering and who is not part of the treating team and can therefore look at the situation independently. All cases in which ANH has been withdrawn should also be available for clinical review.
We are fully in agreement that the law must provide adequate safeguards to ensure that such patients are given treatment which is of benefit to them. We have a duty to ensure that the law respects the wishes of a competent patient who does not want treatment. We also have, I believe, a duty to provide adequate safeguards against futile or unnecessarily burdensome intervention on a patient's body when he or she is incapacitated and at his or her most vulnerable.
Furthermore, I believe that we have a duty to support and protect the medical practitioners who are placed in the position of having to make very difficult and distressing decisions. We believe that the balance of the law, given the thought and care that has gone into the judgment over the past decade, protects the rights of the patient and the clinical autonomy of the doctors.
I conclude by saying that this is an extremely sensitive issue. All noble Lords who have spoken have addressed the matter in extremely sensitive and personal ways. We have to strike a compassionate and principled balance. These are issues that need broad and open public debate. For that reason, I thank the noble Baroness again for creating that opportunity and I thank all noble Lords who have spoken.
Baroness Knight of Collingtree: My Lords, at this hour I shall, I am sure, do what all noble Lords wish, which is to be as brief as possible. But there are one or two important points that need to be made.
I say to the right reverend Prelate the Bishop of Oxford that there is nothing in the Billand I said this in my speech and the noble Lord, Lord Alton, stressed it againthat means that a treatment which is judged medically to be burdensome, distressful or risky, such as occasionally putting in the peg or the other method of feeding through the nose, has to be carried through. I would also stress that to the noble Baroness, Lady Andrews.
My noble friend Lord Howe put three questions to me. First, the Bill was most carefully drafted, not by me because I am not trained in parliamentary drafting. It was drafted by people who know their business and is very carefully worded. For those who accuse me of not including oxygen and so on, I can assure them thatand I have had some experience of Private Members' Bills, having had five of them passed during my parliamentary lifetimeif any Bill put forward by a Back-Bench Member either of this House or of another place is lengthy, it has no hope of ever becoming law. So the crucial point is that one must be brief. That is one reason why the Bill is brief.
In the cases that I have citedwhich are all recent and realthat was not the case. I mentioned that on two occasions it was felt to be a wretched nuisance that the patient's relative or friend interfered and asked
Thirdly, I was asked: what if the patient cannot speak or is mentally handicapped? I should have thought that some reference should be made to the family. That seems reasonable. But then it is perfectly sensible to recognise that on occasion there is no family and it is not possible to ask anyone else. Then, of course, it must be the doctor's responsibility to weigh up the suffering involved in keeping a patient alive and in starving him to death. That is fairly straightforward.
Nothing in the BillI speak directly to the Ministerdenies the patient's right to say what he or she may want. There is not a word that suggests that the matter be handed over to the doctor, with the patient having no right. I stress again that it is surely not so difficult to judge the doctor's intentions because it must be clearly written down and explained why a procedure was or was not adopted.
As I have said, the wording of the Bill is not mine but I believe that it is legally correct and addresses an issue that must be addressed. If I were sick and in hospital, I should love to have the Minister as my nurse because she exhibits enormous gentle care and I am sure that she would carry that through in any professional capacity when looking after a patient.
What distresses me is that cases such as those that I and other noble Lords have described arise all the time but nothing stops them. It is all very well to have the opinion that we do not like it happening, but who will stop it if the Bill does not? There is such great distress and suffering. We are in direct contravention of an international law. Those who have criticised the Billand criticism is fair and expected in a debatehave in no way addressed that point. Surely we care about whether we meet our obligations with regard to human rights. Legal rights and obligations are blurred and uncertain.
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