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Baroness Finlay of Llandaff: I am most grateful to the noble Baroness, Lady Knight of Collingtree, for her kind words of sympathy. I really appreciate that. I should like to comment on the way decisions are recorded in the patient's notes. It is currently practice that everything one does must be recorded in the case notes. The reality is that doctors recording clinical decisions are not lawyers. However meticulously matters are recorded in the case notes, it may be possible, and often is possible, to misinterpret them or question them, or occasionally really tear them apart because the wording has not been adequate.

A doctor under a great deal of pressure with a lot of patients taking a lot of clinical decisions will write briefly in the notes and will use short phrases. He or she will not write long hand. Sadly, there are not enough medical secretaries within the NHS for every doctor to have a Dictaphone and be able to dictate in full everything that should go in the records. If that was provided, with a secretary to type the notes up immediately, we might be able to have a full explanation of the thought processes of the doctor. Currently, what is recorded in the notes is the conclusion that the doctor has come to and the key pointers on the way which sign how that decision has been made.

At present, I am unaware of any guidance which does anything other than say, "You must record everything you do in the case notes as fully as you can". That is drummed into every doctor and every nurse at all stages. They already know that if anything is in doubt, they must sit down and write everything out in full. I am not sure that putting such a direction in the Bill will do anything other than reinforce good practice. It might allow something to be done about the practitioner who does not keep adequate case records generally. But I fear that the way the case records are written and the resources available to

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doctors will not allow them to defend themselves against a malicious accusation that they have brought forward someone's death.

Lord Clement-Jones: Briefly, I should like to follow the noble Baroness, Lady Finlay, in agreeing with her. I think that this proposal would detract from good practice. Clearly, this is a fairly narrow provision in terms of recording the reasons for decisions in the patient's notes. The GMC guidance is much broader and is followed by clinicians. It states:


    "You must ensure that decisions are properly documented, including the relevant clinical findings; details of discussions with the patient, health care team, or others involved in decision making; details of treatment given with any agreed review dates; and outcomes of treatment . . . You should record the information at the time of, or soon after, the events described. The record should be legible, clear, accurate and unambiguous",

and so on and so forth. It is a broadly written GMC guideline which is admirable in its content. The provisions in the Bill certainly do not provide that level of detail. In those circumstances, I believe that the guideline is vastly superior to the amendment.

Baroness Park of Monmouth: I am sorry that I was not able to be present at the Second Reading debate, but I have read it very carefully. I speak as a potential victim because I am about to go into hospital.

I entirely take the points made by the noble Baroness, Lady Finlay, but it seems to me that it is not fully realised by the public that it is possible for you to be starved to death and to have water kept from you. It may be done for perfectly respectable clinical reasons, but you do not expect it.

I have signed a power of attorney which states that I do not wish to be officiously kept alive. I had in mind that someone would pull out a pipe and I would be dead. That would be fine. But I did not have in mind that I could be perfectly properly and legally left to die of starvation and thirst.

The public need to be reassured about this but I do not know how that can be done. I understand the difficulty but a very real fear needs to be allayed. I do not know how.

Earl Howe: I have a great deal of sympathy with what the noble Lord, Lord Clement-Jones, said. The essential question with regard to the amendment is what value is added by putting on the face of the Bill a requirement of this kind?

Perhaps I may ask my noble friend a couple of supplementary questions. First, why does the amendment refer to a consultant when Clause 1(1) refers to any person responsible for the care of a patient? Secondly, what sanctions does my noble friend envisage for any consultant who fails to record his reasons in the way referred to in the amendment? Will it be an offence in its own right?

Lord Brennan: I invite the Committee in considering the Bill not to confuse a semantic analysis of the amendments with the objective behind them. I am sure that my interpretation of the noble Baroness's

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amendment is correct when I assume that she means that if a doctor—whether it be a consultant or the doctor in charge is a semantic matter for me—the person in charge, takes a decision which plays a substantial part in the death of a patient, the public interest, let alone the interest of the family and those nearest to the deceased, would expect there to be a record of the reasons for that action.

It is not bureaucratic. It merely seeks to allow there to be invested into the medical procedure at this grave point in a person's existence a medical explanation, in whatever brief form training in medical schools can produce. Although pressures of work may be extreme, I cannot imagine, even in a hospice, that they are so extreme as to prevent a medical person at some stage in the day or so after such an event making an adequate note, albeit brief.

In my own experience of cases in the past, it is not the existence of notes which leads to malicious complaints and grave dissatisfaction; it is the absence of notes which immediately creates wrongful inferences which may have nothing to do with reality. I cannot imagine any other walk of life where we would not expect a serious decision to be recorded at or near to the time it was made so that others can determine why it was reached. Why should medicine be different when we are talking about a point near death?

The Lord Bishop of Oxford: Would not the noble Lord, Lord Brennan, agree that it is proper medical practice to make notes, as the noble Baroness, Lady Finlay, has pointed out? If notes are not made, the professional ethics, the ethos of the medical profession, have to be looked at. But the GMC has made it quite clear that it is standard practice for notes to be made—sometimes quite simple, straightforward notes if the case is straightforward; sometimes more complex notes if a more complex decision is to be made—and it is difficult to see what the law can add to proper medical ethics and medical practice.

If the law does come into this, as has already been emphasised by a number of noble Lords, it might create a different kind of environment for the doctors who have to make these very difficult decisions.

Lord St John of Fawsley: There has not been a single substantive reason produced against the amendment. Even the noble Baroness, Lady Finlay, said that it would reinforce best practice. If that is so, what is the possible objection to it? It is not as though the relevant law is being introduced here for the first time; the law is there anyhow. If there is a breach of the law, action will be taken. As I say, the amendment reinforces best practice and reassures people who are anxious. It seems to me that as no substantive objection has been produced, we should support the amendment.

8.15 p.m.

Baroness Andrews: The noble Earl referred to an inconsistency. One of the problems with the amendment is that it refers to "the consultant in charge" while the general offence in the Bill relates to,

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    "any person responsible for the care of a patient".

That description could cover any member of the medical team, including the nursing staff. I have a question for the noble Baroness. Does she intend that any member of the medical team or a consultant only would be required under the Bill to record the reasons for a decision to withhold or withdraw sustenance? Cases could arise where the person responsible for the care of the patient is held to have committed an offence. That person would have to rely for evidence on a record of the reasons for the decision made by another person who might have been less involved in the actual decision. If the amendment assumes that the consultant alone will reach a decision on whether to withhold or withdraw sustenance, the noble Baroness needs to bear in mind that that contradicts the current policy set out in guidance that a doctor should reach that decision in discussion with the healthcare team and those close to the patient. Although I appreciate the intention behind the amendment, there is a problem of inconsistency with it.

Lord Alton of Liverpool: I support the amendment that the noble Baroness, Lady Knight of Collingtree, laid before the Committee. However, I think that she will want to clarify the point that the Minister has just made. The purpose of the amendment is simply to provide a record and not to dilute in any way the consultation that should take place between a consultant and other doctors before reaching the decisions that we are discussing.

I refer to the background to the amendment. At Second Reading, the right reverend Prelate the Bishop of Oxford mentioned the case of his aunt. He argued strongly then that nothing should be done in the Bill to force a doctor or nurse to go to heroic lengths, if you like, to keep someone alive who would otherwise die. My noble friend Lady Finlay of Llandaff similarly said that we would indulge in defensive medicine—a point made by the noble Earl earlier—if a doctor could not prove his or her reason for having taken a particular course of action. I believe that what the noble Baroness is trying to do in the amendment is to address the legitimate concerns that were raised at Second Reading and to provide some form of protection for a doctor in such circumstances.

I remind the Committee that during that debate we heard from the noble Lord, Lord Carlile of Berriew, a very eminent QC. He said that no jury would have any difficulty whatever in knowing a doctor's motives provided the relevant records had been kept. The noble Lord, Lord Brennan, also made that point this evening. As the noble Lord, Lord Clement-Jones, said, even though the GMC guidelines require far more detail to be provided, the amendment would simply place on the face of the Bill a requirement to keep a written record. Therefore, it would not be a case of there being no written record as there would be a requirement to keep a written record. There is nothing in the Bill to stop a doctor from going to the lengths laid down in the GMC guidelines.

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None of us wants to see officious legislation directed at doctors or nurses which makes prosecution more probable or likely. None of us wants to see doctors or nurses placed before the courts. I do not believe that the common sense of the Director of Public Prosecutions or of the police in such circumstances would allow that to occur. However, we are well aware that since 1993 and the Bland judgment the very concerns that, in her usual forensic way, the noble Baroness, Lady Park of Monmouth, pointed us towards, have become real and legitimate; that is, one can go into a hospital fearing that one could be starved to death. I hope that the noble Baroness will remain in your Lordships' House for many years to come to make the kind of contributions that we have heard this evening and that the course of care that she is about to undergo will be highly successful. But there is a real and legitimate worry here. It was aired at Second Reading. I believe that the amendment is a real attempt to address those concerns. I hope that it will be supported.


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