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Baroness Andrews: My Lords, I shall try to be as brief as the noble Baroness. Clearly, we have debated aspects of the amendment in different ways as we have debated the Bill. It seeks to avoid an offence being committed if a decision to withhold or withdraw sustenance were taken on the basis of the patient's own request or their refusal to consent to the necessary processes and interventions in providing sustenance. The implication in subsection (2) is that the patient concerned has the capacity to request or withhold consent to the withholding or withdrawal of sustenance, although that is not made explicit.

Subsection (3) deals with patients lacking the capacity to consent. It appears to provide that where the doctor in charge has consulted with the patient's next of kin or legally appointed representative and the provision of sustenance is unlikely to result in any benefit or improvement for the patient, whether dying or not, it may be withheld or withdrawn. As I said during our many hours of debate on the different stages of the Bill, the Government believe that those principles are important ones to maintain in considering any change in the law. We support the general legal and ethical principle that valid consent must be obtained before starting any treatment or intervention or providing personal care for a patient. That reflects the right of patients to determine what happens to their own bodies and is a fundamental part of good practice. Where patients lack the capacity to consent, the key principle governing their care and treatment is that of a person's best interests. Those best interests are not confined, as we discussed, to best medical interests but will take into account a person's psychological health, well being and quality of life.

I draw the noble Baroness's attention to the definition of "capacity" as set out in subsection (4), which somewhat fails to do justice to all the requirements as commonly understood by the term. For a person to have capacity he or she must be able to comprehend and retain information that is material to the decision, especially as to the consequences of having or not having the intervention in question, and must be able to use and weigh that information in the decision-making process. That suggests a detailed understanding of and the ability to interpret the material facts and not just an understanding in broad terms. The amendment also does not specify who should determine whether the patient has the capacity to make those decisions.

Baroness Finlay of Llandaff: My Lords, I am most grateful to the Minister for having outlined the very important issue of competence that runs behind the amendment.

I want to clarify a couple of issues about the wording. First, a patient is assumed to be competent unless they are proved not to be competent; hence the amendment. Subsection (2) refers to "the patient" and subsection (3) to,


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The other important point about capacity is that the capacity to refuse in a valid manner must be assessed in relation to the proposed intervention. The greater the import of the decision, the greater the capacity required to make it. Hence there is no fixed test for capacity; it depends on weighing up the specifics of the situation.

As the noble Baroness said and as has already been laid down by the courts, "capacity" refers to the fact that the adult patient must be able to understand and retain the information relevant to the decision, believe the information and weigh it in the balance to arrive at a choice. That choice must include understanding the consequences of not receiving a proposed treatment or intervention—in this case, of not receiving sustenance. The choice must also be voluntary and free from pressure. The whole decision-making process must be free from discrimination and it must respect privacy, confidentiality, the liberty of the individual and their dignity, and it must take into account views that the person may have expressed when he was deemed competent prior to being deemed incompetent. There are guidelines for good practice and the amendment seeks to ensure that good practice is built on by ensuring that there is consultation with relatives and/or carers, as outlined, by next of kin or legally appointed representatives.

Patients are routinely asked on entry to hospital about next of kin. However, if the patient were not competent to state that, the people who would need to be considered are the patient's partner, family, carer or, in Scotland, the tutor-dative, or a person with parental responsibility; the legally appointed representative currently applies only in Scotland—that status, so far as I understand it, is not valid in English law.

I seek the guidance of the House because shortly before I came into the Chamber it was drawn to my attention that one word was missing from the end of the first line of subsection (2)(a); there should be an "or" at the end of that line. It should read:


    "The patient . . . requests the withdrawing or withholding of sustenance; or . . . does not give consent to the provision of sustenance; or".

I checked that against the draft that was submitted, and I apologise to the House for not spotting the typographical error in omitting the word "or". I am uncertain whether the word "or" can be carried over to the previous line and believe that that needs to be clarified.

3.45 p.m.

Lord Joffe: My Lords, before I express some concerns about the amendment, perhaps I may seek clarification from the noble Baroness, Lady Knight, on a single word. Is the word "dying", which appears before the word "patient" at the end of proposed new

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subsection (3), intended to include patients in a persistent vegetative state, such as Anthony Bland? If the answer is that it does include such patients, I would considerably shorten my speech.

Baroness Knight of Collingtree: My Lords, I understand from those whose business it is to give medical care—it is not my business—that the words as tabled in the amendment are absolutely clear to the medical profession. So far as concerns that profession, the concept of a "dying patient" carries with it no lack of clarity. But I am certain that the right person to answer this question may well be the noble Baroness, Lady Finlay.

Baroness Finlay of Llandaff: My Lords, perhaps I may speak briefly to clarify the matter. The Bill relates to sustenance. For a patient in a persistent vegetative state there may be other measures which it would be more appropriate to withhold or withdraw prior to considering the withdrawal or withholding of sustenance. To date, the courts have been involved in cases of PVS, and it would seem inappropriate to try to include that in a Bill which is confined to the issue of sustenance.

Lord Joffe: My Lords, perhaps I may then turn to a point which is extremely serious. On my understanding of the case, the courts have dealt specifically with the question of withholding sustenance and they touched upon it in very clear terms in the Bland case. In that case, the noble and learned Lord, Lord Hoffmann, stated on page 832 of his judgment that,


    "the medical evidence"—

it is clear that he was referring to the Bland case—


    "is that suitable sedation can prevent any untoward symptoms and that withdrawal of nourishment is the most gentle and controlled way in which to allow him to die".

Therefore, the issue was clearly faced up to in that case. If the amendment before the House seeks to change that position, then it runs counter to the decision of the House of Lords appeal court, the Court of Appeal and the presiding judge. Therefore, I believe that we are dealing with a very clinical point in relation to the amendment.

Baroness Knight of Collingtree: My Lords, with great respect, the noble Lord is not correct in his assumption. The Bland judgment did not say—I repeat, "not"; in fact, it was specific about people's wishes—that henceforward it would be permissible to withhold food and liquid from a patient who was ill in hospital. It was made quite clear that the Bland case was a very special, very particular and, indeed, very bad case—as in "bad cases make bad laws", as, indeed, they do.

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The point also covered very clearly—particularly by the noble and learned Lord, Lord Mustill—was that henceforward the Bland case should not be used as an excuse to deny a patient food and liquid.

Baroness Farrington of Ribbleton: My Lords, I must remind noble Lords that on Report the mover of the amendment is the last person to speak and that other Peers may speak only once.

Lord Joffe: My Lords, I asked whether I could first ask the noble Baroness a question. Is the Minister saying that I am excluded from continuing with my speech?

Baroness Farrington of Ribbleton: My Lords, perhaps I can be helpful to the noble Lord. Any further questions put to the noble Baroness must be answered by her at the end.

Lord Joffe: My Lords, I have read the words of the Bland judgment to the House. It is clear that it talks specifically to exceptions to the rule and that in exceptional cases it is acceptable to deny patients who are suffering, provided that does not cause them unnecessary pain and suffering.

I move on to a point raised in Committee. The noble Baroness, Lady Knight, said that neither the BMA nor any doctors had raised concerns about the Bill. That is said twice in her speech. It is clear that she was not aware of the response of the chairman and the secretary of the Royal College of Physicians Committee on Ethics and Medicine. They produced a specific document in relation to the Bill, stating:


    "As it is formulated, the Bill is extremely vague and will certainly be detrimental to humane care of patients. If it were passed, it could be a crude instrument to bludgeon doctors into behaving contrary to clinical judgement informed by a compassionate and sympathetic understanding of the needs of the patient".

It is a two-page document and I will not read further, but that indicates the spirit of the approach to the Bill of the Royal College of Physicians. But in fairness, it must be said that that response was given before the amendments were tabled and perhaps in the light of them it may be different.

I find myself in the position of, broadly speaking, supporting the amendments for the curious reason that although I do not support the Bill, which I accept is moved for reasons of compassion and concern about depriving patients of sustenance without their consent but I believe is unnecessary, I consider that they make a bad Bill rather less bad.


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