Examination of Witnesses (Questions 80-91)|
10 SEPTEMBER 2003
Q80 Baroness McIntosh of Hudnall:
If I am misquoting you then please reply.
Dr Lyons: I said there was no
doctor who would act to end somebody's life.
Q81 Baroness McIntosh of Hudnall:
Act to end somebody's life, that is fine, because that sets the
context for what I wanted to ask you. It appears to me that underlying
a lot of what you are saying about this particular issue is a
general principle, not one of these general principles, a general
principle that being alive is on the whole better than being dead.
I am really not being flippant, I think that does seem to me to
be an underpinning principle to what are you saying, which makes
it difficult to understand where issues about best interests or
benefit, however you want to describe it, fit into the language
of decision-making if the general principle is indeed that being
alive is better than being dead because that would lead to an
assumption that anythingI know this is not how doctors
and medical people proceed, I know the complexity of the argumentthat
prolonged life was preferable to something that did not. I think
we need to understand what the governing principles are here.
Professor McMillan: Is there not
an issue of futility treatment and because the treatment is futile
by definition of futility it is not going to accord benefit?
Dr Lyons: I can give you a quotation,
I think I am quoting correctly: "To attempt to preserve a
patients's life at all costs may not be fully respectful of the
patient. You must approach end of life decisions with a healthy
realism". That was Pope John Paul II.
Q82 Baroness McIntosh of Hudnall:
As it happens that is a view that I share. What I am trying to
understand is the tension that seems to me to be bedevilling the
question of interest and benefit round the issue of withdrawal
of treatment between the benefit of being alive and the benefit
of not being alive, and that in the end is what it boils down
to. I think that what you have just said clearly indicates that
there are circumstances in which not being alive is preferable
to being alive.
Dr Lyons: Can I put it another
way, am I intervening to prolong somebody's life or am I intervening
to prolong somebody's death. Am I prolonging the process of dying?
Am I helping that person? I have to make that decision day in
and day out with people with advanced dementia. I follow very
clear principles laid down by the British Medical Association
in how I do that and I consult widely over that. That does not
involve the Adults with Incapacity Act although the general principles
of the Act do guide my decision-making. My decision-making would
have been within those principles.
Baroness McIntosh of Hudnall: It might
be worth our while to consider what extent it is necessary to
make explicit what you just said because the difference between
prolonging somebody's life and somebody's death is very, very
critical but it does not appear anywhere.
Q83 Lord Rix: Would that not be for
guidelines rather than the Bill?
Dr Lyons: May I make a recommendation,
my recommendation is that you do not write it explicitly into
the Act, that is not what the Act is about. What is happening
with this discussion is this discussion has been hijacked by that
issue, the way that we almost got hijacked in the Scottish Act
with that issue, so we left it out and that allowed us to concentrate
on using the Act for people's benefit and leaving these difficult
decisions to good practice guidelines.
Q84 Chairman: Did you have a draft
or did your Parliament go straight to the Bill? Did you have a
draft Bill and then have consultation or did you go straight to
Dr Lyons: There was actually a
lot of consultation before the draft Bill in the first place.
Q85 Chairman: So it was a draft Bill,
Dr Lyons: Yes, but there was a
draft Bill that came out of the Scottish Law Commission's original
report and the document Making the Right Moves which it
was eventually called.
Q86 Chairman: Were the draft Codes
of Practice circulated widely for consultation?
Dr Lyons: Yes, and we all commented
on them, ripped them to bits and they went away and thought again.
I would say that the Code of Practice for medical treatment in
particular in the Scottish Act has its problems. We have difficultyand
there are one or two questions in here about itbecause
the definition of "medical treatment" under the Scottish
Act is, in my personal opinion, too broad. It is defined as "any
health care procedure designed to promote or safeguard the physical
or mental health of the adult", which is far too broad and
it is not what the Act should be concentrating on for medical
treatment which is potentially contentious longer term treatment
and the acute treatments that would ordinarily require a person's
written consent, so I think there is a judgment to be made there.
The other big difficulty with medical treatment that this Bill
has is it does not close the Bournewood gap. I am sure
you are familiar with the Bournewood case. This Act excludes
those covered by Part IV of the Mental Health Act. That excludes
treatment for mental disorders beyond three months so if somebody
is incapable of giving consent to this order you could not give
them treatment for that if this Bill became an Act.
Q87 Chairman: This is the draft Bill?
Dr Lyons: You would have to use
the Mental Health Act so all these people would be subject to
the Mental Health Act and they would all need a second opinion
from the Mental Health Act Commission and you would gum the entire
system up and it would not work. We were close to doing that in
Scotland before we drew the Scottish Executive's attention to
that so I think it is only fair to draw that to your attention
Dr Bowden: I think a related point
is about assessment of capacity generally across the Act. We need
to look at the appropriate level and intensity of assessment of
capacity really on a principle of proportionality. For minor or
relatively insignificant decisions I think you are perhaps moving
to the general authority to treat, and general authority is potentially
there. Perhaps we have gone too far in requiring certification
of Part 5 under the Scottish Act but as a psychologist I would
say that where it comes to complex decision making it is crucial
that a psychological opinion is coming in there in contentious
and difficult cases and indeed also a speech and language therapy
opinion because of the particular communication issues that can
come in, and I think guidance looking at that proportionality
of assessment and using the appropriate specialists to carry out
these assessments and not placing that on general medical practitioners
or indeed under the general authority (Jean next door) is very
Q88 Baroness Fookes: As you obviously
attach great importance to the codes, would it be useful for us
to have a copy of these codes perhaps with a critique where you
feel that they may fall short or could be improved?
Dr Lyons: The Codes of Practice
are certainly available on the web site on the Scottish Act. On
the critique especially on the medical Code of Practice there
is a consultation process at the moment and the responses to that
will be analysed by the Central Research Unit. I am doing some
research on the use of Part 5 with the University of Stirling.
I think it is very important that when those reports are analysed
and that research is available then we do our best to make it
available to this Committee.
Q89 Baroness Fookes: And the timescale?
Dr Lyons: For the analysis of
the responses it should be pretty soon.
Q90 Baroness Fookes: In time for
Dr Lyons: What is your timescale?
Q91 Chairman: We have to finish all
our deliberations by the end of November.
Dr Lyons: I would be confident
that the responses will be analysed before then.
Mr Ramm: I think there are some
similar discussions amongst clinical psychologists about their
views in relation to the Act as well. You have to bear in mind
that even for Scotland the ramifications and implications of the
legislation are still only just being worked through, so it is
still very new to us.
Chairman: Sure. Thank you very much indeed.
You have had the questions, we have not reached them all. If there
are any questions there that you would particularly like to answer
in writing that would be very helpful to us. I apologise again
for all the disturbances, which were due to votes in the House
of Lords mainly. Thank you very much, it has been very helpful.