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Lord Lipsey: I am moved, as I am sure the Committee has been, by the cases of hardship that we have heard about. On the other hand, we should look at the other side of the coin. There are those who do not want to pay the licence fee. Although most of us fall into that category, there are some who take the matter a step further and do not pay although they perfectly well could.

The licence fee is an absolutely stinking, lousy tax. No one has ever doubted that. It is a poll tax. Unfortunately, however, no one has yet found a better way to finance the BBC. However, if we reach a situation where there is more widespread evasion of the licence fee, the arrangement will simply crumble and the option of keeping it will simply go. I hope that we will have a balanced approach to these matters. I cannot say that 14 prosecutions a year puts the fear of God into me, but I do not know each individual case.

Although there should be a balanced approach which takes account of the hardship that can be caused by payment, at the same time there is a need to keep the integrity of the tax and to do justice to those who go off and struggle very hard. On the Davies

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committee I calculated that it could take a low-paid worker a week of his working year to pay the licence fee. Many people struggle to do so. Let their efforts not be eroded by our making it too easy for the minority who simply choose not to pay.

Baroness Blackstone: The Auld report concluded that full decriminalisation of TV licence enforcement was not a straightforward option. It would mean that people would no longer risk a penalty as a consequence of using a television without a licence. Instead, detection would result only in the threat of county court proceedings to recover the cost of the licence.

There would therefore be no incentive to obtain a licence ahead of contact from the enforcement agency. So I very much agree with what my noble friend Lord Lipsey has just said. The Auld report therefore recommended that the use of a television without a licence should remain a criminal offence, but that it should be dealt with in the first instance by fixed penalty notice, discounted for prompt purchase of the licence and payment of penalty, and subject to the defendant's right to dispute guilt in the courts. The Home Office has been carrying forward work on that recommendation and, in consultation with the BBC, is exploring a number of options for dealing with TV licence evasion, including that of a fixed penalty notice. The aim is to put an options paper to Ministers in the summer. Of course, the Government share the aim of diverting people from the criminal justice system and of lessening the burden on the courts. However, it is essential that any new arrangements are really effective.

I note the provision in new subsection (2)(c) in Amendment No. 309D for regulations to waive the requirement to pay the licence fee in cases of hardship. No matter how hardship was defined for those purposes, such an exemption would effectively result in means testing as a requirement of paying the licence fee. Free or concessionary television licences are already available, as I am sure the noble Lord, Lord Thomson of Monifieth, is aware, to about 4 million households, many of whom are on low incomes. However, means-testing concessions would be expensive to administer and would be resented by those who marginally failed to qualify.

To allow the courts to waive the requirement to pay in individual cases would discriminate against the many people on low incomes who pay their licence. It would also compound the cost of decriminalisation to the BBC, which would incur the cost of pursuing evaders through the courts with no certainty of recovering the licence fee, let alone the costs.

The Government are anxious to ensure that the television licence fee is as easy as possible for people, especially those on low incomes, to pay, and a range of instalment options is available. Those include the cash easy-entry scheme, under which payments are made first in weekly and then in fortnightly instalments, and the

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savings stamp scheme. As the noble Lord, Lord Thomson, is aware, the longer-term arrangements for funding the BBC will need to be considered in detail as part of charter review. We shall consider all the funding options and review the concessionary, easy payment and enforcement arrangements in the light of our conclusions.

The amendments are also flawed. Amendments Nos. 142A and 309D are based on the assumption that the Wireless Telegraphy Act 1949 will continue to provide the framework for the television licensing system. However, the Bill repeals all the television licensing provisions of the 1949 Act and introduces new provisions in their place.

Clause 359 also gives the BBC or Ofcom the power, with a warrant issued by a magistrate, to enter and search premises to check for unlicensed use of a television receiver. The powers conferred on Ofcom under a warrant to enter and search premises are exercisable in relation to an actual or suspected contravention of a condition of a television licence relating to interference with wireless telegraphy.

TV reception equipment, such as aerial amplifiers, has been known to malfunction and cause much interference to safety of life and other communications. So it is essential that Ofcom has the necessary powers to deal with interference from such sources. Those powers exist under the 1949 Act, and are re-enacted here with additional safeguards. So to remove Clause 359 would make proof of unlicensed use of televisions and investigation of interference more difficult. That is just another technical reason why the Government must resist the amendments. I therefore very much hope that the noble Lord, Lord Thomson, will withdraw his amendment.

Lord Thomson of Monifieth: I am grateful to the Minister for the tone with which she replied to the amendments and the new clause. We shall of course want to study carefully what she said. I take her point about the imperfections in the amendments. The paper that we have received from the BBC, for example, points out the anomalies in relation to the view that we have taken on the operation of the Wireless Telegraphy Act 1949. It tried to console us—it did not console me much—by stating that the penalty for licence fee evasion, instead of being at level 5 on the standard scale, will remain at a fine not exceeding level 3, which is currently 1,000.

There will need to be a serious review of a fundamental character about how the BBC is to be funded in a multi-channel age. I have previously canvassed the purely personal view that, as the BBC is one of the great national institutions of this country, it should be given an entirely separate form of direct funding—perhaps comparable to the Civil List, I do not know. But I do know this. I am bound to say to noble Lords on all sides of the Committee that when we read some of the tales of people who finally get on

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the wrong side of that law and end up before the courts and, in some cases, even though they are few, in prison for non-payment of the licence fee—

Baroness Blackstone: I am sorry to interrupt the noble Lord, but they do not end up in prison for non-payment of the licence fee. They may, very occasionally, end up in prison for non-payment of their fine—of course, that applies to any unpaid fine.

Lord Thomson of Monifieth: I understand that, but I think that for some of the poor creatures involved, it is a distinction without a difference. I was only going to say that that makes me a little uncomfortable in this House, where so many of us—in my case, for many years—have been relieved of the necessity of paying any licence fee at all, because of the generosity of successive governments in enabling senior citizens to enjoy that privilege. When I think of those who do not enjoy that privilege and what happens to some of them, I feel strongly about the amendment, but for the moment, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Schedule 7 agreed to.

Clauses 180 and 181 agreed to.

Lord Evans of Temple Guiting: I beg to move that the House do now resume. In moving the Motion, I suggest that the Committee begin again not before twenty-three minutes to nine.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Patients' Protection Bill [HL]

7.37 p.m.

Baroness Knight of Collingtree: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Baroness Knight of Collingtree.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (The Countess of Mar) in the Chair.]

Clause 1 [Offence]:

Baroness Knight of Collingtree moved Amendment No. 1:

    Page 1, line 3, leave out "his" and insert "the"

The noble Baroness said: This is a manuscript amendment because, as will clearly be seen, I felt that the word "the" would be better at this point than the word "his". It does not really involve any significant changes, but it tidies matters up. I beg to move.

Earl Howe: If my noble friend will allow, I think that we need to return to an issue that we debated at Second Reading, which I am not sure she fully answered at the time.

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The test as to whether a doctor, or anyone else, is guilty of an offence under the clause if he withdraws or withholds sustenance from a patient is whether the purpose of doing so was to hasten or otherwise cause the death of the patient. The question that arises from that is simple: how would it be possible to establish beyond reasonable doubt in most cases that someone who withdrew a feeding tube intended or did not intend to kill the patient?

When she introduced the Bill, my noble friend made clear that there were circumstances in which the withdrawal of artificial nutrition and hydration would be permissible. She said that it would be permissible if the treatment were burdensome, distressful, or risky. It would not be permissible if, as the Bill says, the person's purpose was to hasten or cause death. I hope that I am right in the way that I have summarised my noble friend's remarks.

If I am correct in my summary, it seems to me that if a doctor is not to be put in a potentially impossible position there is only one policy that he can reasonably adopt under this Bill; that is, to resist the temptation to withdraw or to withhold sustenance from most, if not all, terminally ill patients under his care. He may be the most caring and conscientious doctor in the world and he may record his reasons meticulously in the patient's records, but how can he ever demonstrate conclusively that the act of withdrawing or withholding sustenance was based on a professional judgment that the alternative would be overly burdensome? He might record this judgment in his notes, but would that be enough to protect him? If withholding sustenance had the effect of hastening the patient's death, how could the doctor show that this was not his purpose, or part of his purpose?

It seems to me that in many situations involving terminally ill patients decisions that are taken, and the reasons for those decisions, are multi-layered and quite complex. In a case where a doctor has decided for the good of his terminally-ill patient to withdraw sustenance but, in so doing, has hastened the patient's death, the relatives of the patient who take issue with his decision could serve up that doctor to the police on a plate. All of a sudden he could find himself on a criminal charge, with little except his record-keeping to back him up. The aggrieved relatives might well be able to present a case contrary to that of the doctor which a court might find persuasive.

The noble Baroness, Lady Andrews, alluded to that possibility when she spoke at Second Reading of the acute difficulty in law of separating out the different strands of someone's intentions. It would not be enough for the doctor to say that, while he had foreseen death as a consequence of withholding nutrition, he had not intended death. He would have to do a lot better than that. Indeed, he would often have no certainty at all that he could prove his innocence of the offence, as defined in Clause 1. As the Minister said at Second Reading:

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    "Therefore, if a doctor knew, as a virtual certainty, that withholding or withdrawing treatment . . . would result in the patient's death, the doctor could still be held to have positively intended the patient's death".—[Official Report, 12/3/03; col. 1433.]

That is the acute difficulty posed by the phraseology of my noble friend's Bill. To put doctors constantly on the backfoot in this way would lead to one thing, and one thing only; namely, defensive medicine. And not just defensive medicine, but bad medicine—in other words, treatment that actually causes distress to patients far beyond any possible benefit that they may gain from it. That is why the noble Baroness, Lady Andrews, was right to say that the shift in the law that the Bill would usher in is of fundamental importance.

The current test of criminality in the absence of the patient's ascertainable wishes rests on issues which, though not matters of fact, nevertheless are capable of attracting a solid level of agreement among reasonable people; namely, what are the best interests of the patient and the degree to which the burdensomeness of treatment is outweighed, or not, by the patient's prospects for improvement or recovery? Agreement on those matters rests in the first instance on subjective judgment, but, ultimately, on demonstrable facts.

The same cannot be said when one tries to prove someone's intention. My intention in doing something is a matter of fact, but it is a fact that is, in practice, unverifiable. I can try to adduce evidence to back up my assertion that I acted with this or that intention and sometimes I may succeed, but often the evidence will point in more than one direction. Often, as the Minister indicated, I may not be able to disprove that I had more than one intention when I acted in a certain way. Allowing the test of criminality to rest solely on establishing intention is, I suggest, unsatisfactory in a context of this kind when there is a better course open to us—namely, a test that is patient centred rather than doctor centred.

The law currently relies on the test of what is in a patient's best interests. But that is also the basis on which the doctor himself takes his clinical decision. To ask, or expect, a doctor to take a decision on the basis of what he intends by his actions is, I suggest, the wrong way to proceed. It would mean that the incompetent but well-meaning doctor, who withdrew or withheld artificial sustenance when he clearly should not have done, could have a defence in law under this Bill. I suggest that that would be highly unsatisfactory.

Members of the Committee need to hear from my noble friend why she believes that the test of purpose, rather than another more patient-centred test, is the right way to proceed. For the reasons that I have outlined, I am very doubtful that the Bill, phrased in this way, will achieve the result that I believe most of us want to achieve, which is to allow doctors, with proper protocols and safeguards, to make informed clinical decisions on behalf of their terminally ill patients; and be held accountable for those decisions according to well-defined and well-understood rules.

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7.45 p.m.

Baroness Knight of Collingtree: I am happy to examine more carefully the question of a legal test to determine what "purpose" means in this context. I have been assured by experienced barristers, one of whom helped with the wording of the Bill, that the word "purpose" is well used and well recognised by juries. "Purpose" is a commonsense word. Like many similar concepts, it is frequently used in criminal law and, I understand, pretty well every day in trials.

I remind the Committee of the words of Mr Andrew Hunter MP that I quoted previously. When he discovered to his horror that his sick wife was being given neither food nor water in hospital he said that he found it hard to avoid the conclusion that the hospital was deliberately accelerating his wife's death in order to increase the throughput of patients. It is well understood that beds are at a premium; indeed, at this very moment, many people who need hospital care are unable to go into hospital because there is simply not a bed available for them. I certainly understand the dilemma.

It is perfectly reasonable to ask: what other purpose could there possibly be? If there was a good reason for such actions, I am simply asking by way of my amendments—which I shall deal with shortly—that such reasons be noted. That seems to me to be perfectly fair. Giving sustenance in the case of Mrs Hunter was causing no pain; there was no difficulty about feeding her. Indeed, the contrary was true: she was in terrible difficulty because she was not being fed. It does not take much imagination to recognise that death by starvation, or dying of thirst, must both be a truly ghastly experience. The patient had not asked to be denied food, nor had her husband made such a request.

If there was another purpose, it should, as my amendment advises, be clearly written down. When a tragedy happens and a patient dies for reasons that I described—for example, through thirst, which is a dreadful way to die—it is not unreasonable for people to complain about that and try to ascertain the purpose behind it. The BMA has recognised that the word "purpose" is perfectly reasonable in this context. It says:

    "Treatment, including artificial nutrition and hydration, may be withdrawn if the purpose of so doing is to withdraw treatment which is not able to provide a net benefit to that patient in terms of maintaining or restoring the patient's health to a level he or she would find acceptable".

I am bound to say, en passant, that that is an extraordinary statement. In other words, the purpose can easily be to withdraw treatment unless food will make the patient better. I quoted the statement from the BMA to show my noble friend that the word "purpose" is fully understood in this context, and that it is certainly not unreasonable to include it in this way. Furthermore, the word was included on the basis of advice from a barrister. The BMA has not complained about the word. I assure my noble friend that, until his intervention, no concern was expressed to me about whether purpose could properly be established.

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We are not dealing with a case in law. We are trying to get over the terrible difficulty that has arisen since the Bland judgment. We have all heard and read the Law Lords' remarks that it must not be possible to use the impetus of the Bland judgment to justify not giving people the sustenance and liquid that they need. I assure the Committee that I am not trying to be awkward or difficult. I am merely trying to ensure that decent, honourable doctors in hospitals are given clear guidance as to what this Parliament thinks they should do in such cases.

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