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Lord Lester of Herne Hill: My Lords, the noble Lord is speaking for the Conservative Party and at the same time quotes from the report of the committee on which he served. In that context, could he explain the remarks in paragraph 243 of the report—which is supposed to give clear guidance—in relation to the issue of double effect? From the doctor's perspective, the reports states that:

I repeat, "or distress"—

    "and the treatment given is appropriate to that end, then the possible double effect should be no obstacle to such treatment being given".

That is a shield for doctors. Will the noble Lord explain how he would define "distress" in a way that would enable doctors and nurses to be clear of the risks of criminal punishment?

Lord McColl of Dulwich: My Lords, yes, I would be very happy to give a lecture on that subject right away. When a patient enters a hospice, he has a number of symptoms. There is pain, and specific drugs can be given to relieve pain. He may be very anxious, and special drugs are given to relieve anxiety. The distress may be respiratory—he may have difficulty breathing—and special drugs can be given for that.

The whole concept of double effect is confusing and unhelpful. The drug has one effect. Drugs such as heroin and morphine are exceptionally good because the dose required to achieve a therapeutic effect is totally different from the dose required to kill. That, indeed, is the definition of a good drug. We call that the "therapeutic index". When a patient comes into a hospice and is dying, those symptoms have to be sorted out—the anxiety, the pain, the difficulty with breathing, and so on. Specific drugs are given at the right dose. The problem is that it takes about 24 hours to sort out the proper dose. But once the dose has been settled, in general it stays the same throughout the patient's stay in the hospice. It does not go on being increased in order to kill the patient.

I have to say that I personally have given huge doses of, say, heroin to patients in order to control all their distress. My job as a doctor is always to relieve symptoms and control these various distressful things. On one occasion, to an eight stone lady who was dying I gave 36 times the normal dose of heroin. It did not kill her but it did relieve her symptoms. That is our job—to relieve symptoms—and that is what we try to do.

Lord Lester of Herne Hill: My Lords, I am very grateful to the noble Lord for not a lecture but a very clear exposition. However, does he accept from me

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that it is a virtual certainty that if giving a large dose of diamorphine or heroin would be to hasten death, then the double effect doctrine would be a very slippery and dodgy way of dealing with the matter before a jury and a doctor might well face the risk of criminal prosecution as a result of that under our current law? Does he accept that that is the position?

Lord McColl of Dulwich: No, my Lords, I do not accept it at all. I do not understand all this chat about doctors in fear and trembling about being sued or taken to court over treating the terminally ill. I do not find doctors worried about that at all, and I have been in practice for nearly 50 years. I do not understand all this obsession with how terrified doctors are of being taken to court and put in jail. It is a load of rubbish, frankly. I will tell you what doctors are afraid of today—they are afraid of being sued. They are afraid of these predatory lawyers who go round looking for cases to sue.

I have just come back from operating on a Mercy Ship in West Africa. What a joy it was operating from early morning to late night every day of the week. And why is it such a joy? There are many reasons. But one of them is that the African patients have a rather novel approach to their doctors. Instead of suing them, they thank them.

I am not quite sure where I was, but I think I was trying to deal with the problems of diagnosis and prognosis. The noble Lord, Lord Turnberg, referred to the issue. It is a difficult area, especially prognosis, because medicine and prophecy are two quite separate subjects. For example, I was on Cardiff Station waiting to come to London and a man came up to me and greeted me like a long lost friend. I had no idea who he was. We got on the train and we talked for two hours and I was none the wiser. Eventually the penny dropped. I had not recognised him because he was twice the size that he had been when I operated on him. He had come into hospital dying. He was as thin as a rake. He had a mass in his abdomen which was clearly cancer because he had had cancer of the stomach six months before and he was dying. No doubt if euthanasia had been available it might have been undertaken. However, because we are very fussy and want precise diagnoses we insisted that a biopsy be carried out and it turned out to be a huge abscess. There he was alive and well eight years later. Diagnosis is very difficult.

A lady presented in the United States lately. She had had cancer in the past and she came in very ill as an emergency. She had a large mass in the abdomen. She assumed it was cancer and she had euthanasia. At autopsy it was found to be a benign obstruction of the intestine. Diagnosis can be very difficult.

A lovely lady of 70 who used to compose The Times crossword puzzle three times a week had terminal cancer. She came into hospital and got hold of the young doctor, seized him by the arm and said, "I am not going to let you go until you tell me when I am going to die". I felt very sorry for the young doctor because it was me. I was not quite sure what to do. I did not think that she would live more than a few

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months. But whatever you do, never say, "You have only got two months to live". We do not know; we are not prophets. It was February so I said to her, not wishing to take away hope, "I think that you will see Christmas". She died the day after Christmas. Why was that? It had nothing to do with my prophetic powers but everything to do with patients who are determined and will fight on and on and on. It is our job not to take away hope.

Some noble Lords have a rather touching faith in the ability of the conscience clause in the Bill to protect healthcare workers if they do not wish to take part in euthanasia. When I read that conscience clause I was sure that I had seen it somewhere before. Sure enough, there it was, with the identical wording, in the Abortion Act 1967, which states that,

    "no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate".

Have noble Lords forgotten about the two professors of obstetrics whose lives were made a living hell in the 1970s? Exactly what had they done to deserve such a fate? All they had done was to insist on living within the law.

The Abortion Act 1967 permitted abortion under certain well defined conditions hedged about by all sorts of precautions. It did not allow abortion on demand and because the two professors would not agree to that, because they would not break the law they were hounded by the all-too common baying hordes of the so-called politically correct, as the noble Lord, Lord Maginnis of Drumglass, has already mentioned. Not only were their lives made a living hell but hundreds of other doctors, nurses and healthcare workers were discriminated against when they applied for jobs. Denied employment they had no real alternative but to emigrate. The same would happen all over again, and it has already happened in Holland where a doctor was recently reprimanded for not carrying out euthanasia.

Noble Lords will be aware that the Select Committee visited Holland. When we inquired of a doctor what it was like doing the first case of euthanasia, he said, "We agonised all day. It was terrible". But he said that the second case was much easier and the third case—I quote—"was a piece of cake". We found that very chilling indeed. What is even more alarming is that euthanasia is being given to depressed and disabled people, which has to be uncivilised behaviour.

As the noble Lord, Lord Mowbray and Stourton, mentioned, positive requests for euthanasia usually result from poor medical care and when good palliative care is offered there is a dramatic drop in those requests. Again, that emphasises what many noble Lords have said—that we need to ensure that really good palliative care is available for all our citizens.

The noble Lord, Lord Joffe, must be aware that there are—as has been said already—a large number of disabled people who are very much opposed to the Bill as they do—whatever we may feel—find it demeaning. They take offence at those who seem to

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regard disabled people as an embarrassment that they would rather not see and wish were put out of sight. It is extraordinary in this day and age that there are apparently civilised folk who approach physically and mentally disadvantaged children and say to them, "You have no right to be in public".

I conclude with a point that will be of interest to the noble Lord, Lord Brennan. A patient came into a hospice and requested euthanasia every day for three days. They then said to him, "Wait a minute. Your cancer has resulted in the calcium levels in your blood being so high that you are on tablets to keep it down to a normal level. If you stop taking the tablets, the calcium level will rise and you will be dead in 24 hours. If you want to die, all you need to do is to stop taking the tablets". He never stopped taking the drug, until, of course, he died.

We often hear old people say, "I am of no use and I should push off", but that is not a cry for euthanasia; it is cry to be valued. Governments must set themselves resolutely against any attempt to legalise voluntary euthanasia. It is the job of governments to protect the frail, the elderly, the vulnerable, the disabled and the mentally ill because they are the ones who would go under if such legislation were enacted, as they did in Europe in the 1930s.

5.32 p.m.

Baroness Andrews: My Lords, I join every other noble Lord who has spoken in thanking the noble Lord, Lord Joffe, for introducing the Bill. He did so with characteristic integrity, restraint and compassion, and he inspired a debate that has met the highest standards of your Lordships' House—it was of exceptional quality. We should consider the lead that this House has given to discussions of this nature; the debate has set a very high standard. We have had expertise and compassion and the detail of medical knowledge and practice that only our experts can give. Above all, the debate here and in other countries has explored in many different ways the contention of what it means to be human. That was expressed in many ways this afternoon. It is a privilege to participate in this debate from the Government Benches. It has been a pleasure to listen to the contributions.

I very much regret that I must start by saying to the noble Lord, Lord McColl, that the Government do not oppose the Bill. Our role in relation to a Private Member's Bill is to occupy the neutral territory, however difficult. It is to set out what informs our present laws and judgment and to advise on the issues and implications as we see them. Most recently, we have taken such a role in relation to the Patients' Protection Bill, which is based on a very different set of premises but which also raises similar, serious issues of conscience in relation to the end stages of life. The Government are listening intently to the debate as a whole and will continue to do so. We currently have no plans ourselves to change the law but we are listening closely to the debate.

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If the House will allow me, I shall reflect for a few minutes on some of the critical, ethical and practical questions that have informed the debate. The way in which each moral, ethical and practical question has been answered by another set of questions has been extraordinary. That informs our sense of how complex it is to bring change in this area.

Noble Lords have spoken today of the sanctity of human life. They have put that in a theological and philosophical context. In a secularised, if not secular, and multicultural society such as ours, this has been transformed into the concept of human dignity of all citizens and the rights to choice and autonomy which follow from that. When we seek to give patients information and control over many other aspects of their medical treatment why, it is argued, should this ultimate right to seek help when it is most urgent be withheld? Yet one of the questions counter to that is whether we as a society really want to see a loosening of our present laws that prohibit murder and assisted suicide. That ethical argument has been put in the context of the Hippocratic oath, nobly quoted by the noble Baroness Cumberlege, and the obligation to preserve human life.

But there is a counter argument that medical realities have changed as technologies have changed. Technology can change ethics; there can be a different ethic, but what does not change is the human right to exercise compassion. To what extent do we expect the doctor to change his or her attitude towards that?

Other noble Lords have spoken of the damage that the Bill will do to the fundamental trust which must exist between a doctor and patient, of their fears that it will be the most vulnerable, the most dependent, who might be the most likely candidates. Against that is the argument that giving patients in terminal states and in suffering the help they need to die can be an ethical choice by the doctor and one which can express the highest form of trust.

The noble Lord, Lord Joffe, spoke at some length about the need to recognise and resolve the present difficulties of doctors, some of whom, it is suggested, already assist their patients covertly in the natural course of their dying. Why should they not be given greater control over that process and safeguard that role for themselves?

The arguments against that have been very starkly put. How can we ever guarantee that any safeguard is safe? We have spent considerable time exploring the nature of the safeguards in the Bill. That has led to the practical argument, which includes the potential for abuse of trust, misjudgment and coercion, and the dangers of a descent to a point where euthanasia or physician-assisted suicide would become an option for anyone. Where are the boundaries to be found? Where are the limits to be placed? Noble Lords have argued that there is no empirical evidence of a descent into involuntary euthanasia, but the risk that that might happen, and the evidence that we need to ensure that it will not, is very great and very serious.

These questions have divided this House today. They have divided the country, as we have seen in our correspondence. They have divided the medical

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profession and have even divided the lawyers. I believe that this debate is not unique to this country, and neither are the changes which make the debate so urgent unique. They are that we live in an ageing society. We have the power at our disposal to protract our own lives but also to keep people alive with progressive dementia, chronic and degenerative diseases, and severe disability. Twenty years ago that would not have been possible. In parallel, society's view of medical ethics has also evolved and has pushed out the boundaries, not only of what is allowable but what is thinkable in terms of human life and the quality that we expect. What we know is that we do not know enough.

I have listened to what has been said, in particular by the noble Baroness, Lady Finlay, about the need for greater research. We know that agencies and institutions, for example, the Nuffield Council on Bioethics, takes a lively interest in this and we should think about how much more we need to know. We are dealing with a universal humanity expressed as individual vulnerability. It is that which makes change so problematic.

The Bill introduced by the noble Lord, Lord Joffee, introduces for some a partial route through this moral maze, but it would also challenge some of the most fundamental and thoughtful judgments that underpin our current law. They are not changes which would affect simply the individual; they would affect the way we view ourselves throughout society and the view we hold of society as a whole.

How does the Bill fit in with our current law and with international law? I emphasise that like the British Medical Association the Government recognise that there are significant differences between withdrawing or withholding treatment when it provides no benefit, or when the burdens outweigh the benefits to the patient, and taking active steps to help patients to end their own lives. We believe that for doctors and for society there are morally relevant differences between not providing treatment, recognising that by so doing death will probably occur, and taking active steps to end life.

I would also like to clarify that, in common with many others, I regard euthanasia and assisted suicides as two distinct entities. By "euthanasia" we refer to the taking of deliberate and active steps by a third party to end a patient's life. Although the word may mean "a gentle or easy death", it has come to signify deliberate intervention, which, in law falls within the definition of murder. "Assisted suicide" differs from that in that the patient undertakes the final act. He receives assistance from another person to achieve the means to commit suicide.

The Bill conflates both euthanasia and assisted suicide because it includes either providing the patient with the means to end his life or ending the patient's life. That is what is meant in the Bill's definition of "assisted dying".

Noble Lords are quite right that the Government made it clear in their response to the Select Committee report on medical ethics in 1994 that, while they

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endorsed the right of the competent patient to refuse consent to any medical treatment, they also endorsed the committee's rejection of the case for the legalisation of euthanasia. The Government stated that the,

    "deliberate taking of life should remain illegal".

Likewise, they endorsed the committee's recommendation that there should be no change in the law on assisted suicide.

Our current laws cover murder, manslaughter and suicide. While the first two are offences, suicide is not. But the Suicide Act makes it an offence to aid, abet, counsel or procure the suicide, or attempted suicide, of another person.

The UK is bound by the European Convention on Human Rights, which is incorporated into our Human Rights Act and must take it into account when considering legislation. Noble Lords have observed that the Joint Committee concluded that the Bill is compatible with Articles 2 and 8.

However, it is clear from the judgment of the European Court of Human Rights in the case of Diane Pretty that there is no obligation on the state to legalise euthanasia. The court found no right to die. And where the state is providing medical care there is no further obligation to relieve suffering by facilitating a person to end his life. I do not believe that to date the court has ever had to consider a case in which legalised euthanasia was challenged.

Therefore, over the 10 years since the Select Committee reported, we have been looking at change in many different ways. We have become conscious of what medical technology can do. What has not changed is the fear we all feel of the process of dying. That is what informs and drives this debate. In the 10 years since the Select Committee made its judgment, the international climate has changed in other ways. A recent survey in Europe has shown that the vast majority of countries prohibit any acts that assist in bringing about anyone's death, even with the person's consent. The current law and practice in this country are broadly in line with such international opinion. Other countries have taken another route and made another choice. It is for them to operate the Act to their own confidence. We should observe them where we can.

I turn briefly to the Bill itself. It upholds the moral principle of autonomy by supporting the concept of choice; it upholds the human value of dignity; and it sets out some protections for individuals. My noble friend has, in his words, set out to right a wrong by removing what he sees as ambiguities and illegalities in current practice. His Bill would introduce controls into that difficult area where covert practice pushes against the limits of what is legally and ethically allowable. But we have to ask: should physicians have any role in facilitating one event that may be harmful in some situations in order to bring benefits to some patients in others? Is the Bill liable to replace a potentially difficult situation with a positively dangerous one?

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In practical terms, the Bill places a great deal of emphasis on the co-operation of the medical profession. But, as noble Lords across the House have argued, there is no certainty that that co-operation will be there. I have no doubt about, and it would be presumptuous even to guess, the agonising decisions that are taken by doctors on a daily basis. But the medical profession—the noble Lord, Lord Phillips, spoke powerfully about the reliance that we place on ethical medical practice—not only follows those precepts but knows that such acts are illegal and that anyone complying with the patient's request risks prosecution. We know that some doctors believe that euthanasia and assisted suicide are morally defensible acts in certain, limited circumstances; but we also know that the British Medical Association has made it quite clear that it believes that such changes in the law would have a profound and detrimental effect on the doctor-patient relationship. I am sure that the House would want to take on board the BMA's opinion that the law should not be changed.

Noble Lords have also referred to the difficulties raised by the definitions offered in the Bill—in particular, the concept of "unbearable suffering". The Government share that reservation, because of its subjectivity. What may be bearable to you may not be bearable to me; or the other way round. How can parameters be set to ensure consistency?

The Bill states that two specified physicians must conclude that the patient is suffering unbearably, but it does not clarify how they are to reach their decision. That definition is also linked to "competent adults". There are real difficulties in defining that term unambiguously. The Bill is intended to apply to patients who are competent when they request assistance with dying and remain competent until the act is carried out.

For the first stage, it proposes assessment by two physicians and a psychiatrist, if a patient's competence is in doubt. Competence requires an understanding of the course of the illness and likely outcomes, of the different options for care and of the implications. However, there are important questions to be asked about what would constitute sufficient information to safeguard a valid decision.

Many noble Lords have spoken about the difficulty of defining what is a serious or terminal illness and how levels of competence can fluctuate considerably, affected not only by the illness but by medication. When the time for death is reached, although there is a requirement to ascertain that the patient is still competent, there is no provision for reassessment and only one doctor will be in attendance. Other noble Lords have drawn attention to the fact that the Bill does not take into account the effect of depressive illnesses.

Another issue arises from the fact that the Bill does not limit its application to the terminal phases of physical illness, and therefore raises the whole issue of progressive illness, cases of misdiagnosis, instances of patients with neurological conditions that are

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difficult to diagnose and those who may be erroneously told that they have an incurable disease. There is potential for fatal miscarriage and we must be satisfied that the safeguards are effective.

It is equally true that the decision must be genuinely voluntary—how are we to know that there are not overt or covert pressures on the patient? Experience in Oregon showed that patients regarded the avoidance of being a burden on their family as highly relevant in governing their request.

Noble Lords have discussed the Bill's safeguards. I should like to refer to one: the monitoring commission, which would consider the information only after death. It would be unable to stop abuse in individual cases. We know from the Netherlands that only 40 per cent of cases are reported to its monitoring authority.

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