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Mrs. Winterton: The hon. Gentleman raises an interesting point. If a woman with advanced breast cancer who is mentally competent says to her doctor at the time that she does not wish to have any more treatment, she is perfectly within her rights so to do. The question of living wills is a red herring: they are not currently legally binding and the Government have stated that they do not wish to make them legally binding in statute. Therefore, the case the hon. Gentleman describes would not be affected. I have given him a straight answer: if my Bill were passed, the case would be exactly the same as it is now.

Dr. Harris: These are matters that will have to be discussed in more detail in Committee. If the Bill becomes statute law, with the Act stating that doctors may not withdraw treatment from patients, and there is an advance directive that has backing in case law that it is a valid indication of the patient's wish if there is no reason to think that the patient was not competent at the time or has changed his mind, then there is a balance of case law against the statute. That is why at the very best the Bill will need considerable amendment to make the hon. Lady's point clear. My view, and that of many people to whom I have spoken, including legal experts, is that it is not clear.

Ms Drown: Is there not something peculiar in the intention that lies behind the Bill, which is that it would be all right for someone there and then to say, "I want to refuse this treatment", when we have heard from other hon. Members that they are worried that on one day someone could refuse treatment and on another day wish not to refuse treatment? Yet the proponents of the Bill do

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not want to pursue living wills in which people can state consistently over long periods what they would like in certain circumstances. Is it the hon. Gentleman's view that it would be better that people said consistently over a period what they wanted, rather than leaving it to an instant decision?

Dr. Harris: I agree entirely. The question of autonomy for patients is critical. A debate took place in the House of Lords a few days ago which had been promulgated by Baroness Seccombe. During the debate, Baroness Miller said that she was shocked to hear that her mother had been asked on admission to hospital whether in the event of a cardiac arrest she would want to be resuscitated. She took the view that it was outrageous that a patient should be asked for his or her view on that matter and it was outrageous also that she had not been asked for her views instead of the patient.

The House and the public cannot have it both ways. We cannot tolerate any longer a culture where "doctor knows best" and that decisions will be made by doctors about whether to take active resuscitation measures or not without consulting patients. It is unfair to criticise doctors for consulting competent patients about their wishes for intervention while also complaining that doctors are acting as if they know best.

Mr. McWalter: Will the hon. Gentleman give way?

Dr. Harris: I am conscious of the need to conclude my remarks so as to give sufficient time to those on the Front Benches. However, I shall allow the hon. Gentleman to intervene.

Mr. McWalter: The hon. Gentleman has concentrated on the withdrawal of medical treatment. However, the withholding of medical treatment is a much larger category. It is that which will make doctors especially liable to prosecution under the Bill.

Dr. Harris: Absolutely. The issue of do-not-resuscitate orders is important. When people die in hospital, and many do, they run the risk of a bunch of white-coated doctors running along the ward with a trolley and administering electric shocks, and even opening the chest, as in the drama series "ER", to prevent death from cardiac arrest taking place. That can be inappropriate in many cases, but patients need to be asked for their views in a sensitive way. Guidance has come from the chief medical officer that it is not for doctors, and certainly not for junior doctors, to scribble on notes "Do not resuscitate" without consulting the patient, if that patient is competent.

I know that the situation has come as a shock to Members of the House of Lords, and perhaps to Members in this place. That is why we need to debate these issues. The public, with their British reserve, must be dragged away from their view that it is not appropriate to talk about death. In fact, it is extremely important to do so if we want our autonomy to be respected. That was put cogently by the hon. Member for Hemel Hempstead.

Mr. James Gray (North Wiltshire): Does the hon. Gentleman agree with me that the argument that he is advancing could equally well be advanced in support of euthanasia?

Dr. Harris: Yes, I am aware of that. In my opinion, current practice is not euthanasia, but it is that which the

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hon. Member for Congleton wants to stamp out by means of the Bill. Nevertheless, I am on record as saying--my views were known by the electorate before I stood as a candidate--that I want to see liberalisation of the law on voluntary euthanasia, with adequate safeguards. People who oppose the Bill have different views on that. For example, as my hon. Friend the Member for Isle of Wight made clear, the BMA remains fundamentally opposed to voluntary euthanasia. However, there is a utilitarian argument, which claims that, ethically, an act of omission is the same as an act of commission, and that only the end result matters. I believe that if a patient wants the suffering to be ended, doctors should be allowed to do that, with appropriate safeguards, by an act of commission as well as an act of omission. Although that is a separate argument, I have never been shy of expressing my view on the matter.

I want to refer to some of the religious opinions that have been expressed. I bite my tongue when I hear some religions' views, which I find fundamentally illiberal. However, as the Chief Rabbi is the head of the religion into which I was born, it is reasonable for me to comment on his view. On death with dignity, he is quoted in the House of Commons Library briefing as saying:


I disagree. If dying is burdensome, doctors should not be forced to make that death drawn out. I understand the view of the Chief Rabbi, but I do not believe that it is the general view of Jewish people that we should all cope with death, however burdensome, and that there should be no defence against it being prolonged unnecessarily. Heads of religions do not necessarily speak for all the people who subscribe to their religions; the BMA can claim to speak only for its members, not for all doctors.

Mr. Andy King: I wish that the hon. Gentleman had finished the quotation, because it continues:


Surely it is also our duty to reflect the conscience of our society.

Dr. Harris: That is a subjective view.

The Minister, who has sat patiently throughout the debate, is young. Part of the problem in this country is that young people--and even middle-aged people--see themselves as immortal and will not discuss, think about or plan for their death. Death is inevitable, and ought to be discussed. It is sometimes upsetting to do that, and I respect those whose family experiences have been distressing. However, we must set an example. I hope that we will be able to do that in Committee and on Report and thus consider critical issues fully.

1.43 pm

The Parliamentary Under-Secretary of State for Health (Yvette Cooper): This has been an extremely interesting debate. I congratulate the hon. Member for Congleton (Mrs. Winterton) on winning the ballot and on choosing such a serious and weighty subject for her Bill. I also congratulate the hon. Lady on her arguments, which were clear and measured, on an emotive subject.

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The Bill covers difficult, sensitive and controversial issues of medical practice. As we heard in the debate, many hon. Members support the Bill because they want to stop what they perceive to be a move towards the acceptance of euthanasia. At the outset, I emphasise that the Government remain completely opposed to euthanasia, by which we mean the intentional taking of life, albeit at the patient's request or for a merciful motive.

The hon. Member for Congleton said that the aim of her Bill is to restore the integrity of the law on murder and to ensure identical treatment for acts and omissions in medical treatment and artificial nutrition and hydration. She also said that she does not want the Bill to make doctors strive officiously to extend life, or to stop doctors respecting patients' rights to refuse treatment or to prevent them from providing appropriate palliative care or withdrawing treatment or artificial nutrition and hydration that is burdensome or no longer of benefit to the patient. I hope that I have understood her correctly, and I appreciate her anxiety to make clear in her speech exactly what she wants the Bill to achieve. However, I do not believe that it would do what she intends--or what she outlined in her speech--on palliative care, burdensome treatment and other issues.

Many hon. Members have pointed out that we can wrestle over those matters in Committee, and obviously that is right, but it is worth outlining the concerns in detail at this stage. I want to make something clear before I do that, however. Several hon. Members talked about elderly patients receiving inadequate care in hospital. The Government are wholly opposed to poor or inadequate treatment for all patients and for elderly patients as much as anyone else, whatever their age. I reject the claim that elderly patients are routinely starved in the national health service. That does a disservice to NHS staff, many of whom make the welfare of the patients they care for their top priority. We take individual claims about inadequate treatment extremely seriously and will investigate them. We are also drawing up a national service framework for older people with the assistance of an external reference group to set out standards of care, including issues such as the nutritional needs of elderly patients and their care in the NHS.

That has nothing to do with the Bill, which is not about remedying inadequate care. It concerns deliberate decisions to withhold or withdraw treatment. As I have made clear, euthanasia is wrong and unlawful in the United Kingdom. It will remain so. Such a deliberate act cannot be justified, but the case law on the withdrawal or withholding of treatment--which have been described by many hon. Members as an omission rather than an act--is, unsurprisingly, complicated. When a patient is in hospital there is no doubt that the doctor owes the patient a duty of care. That certainly includes a requirement not to kill the patient intentionally by any means, action or omission.

However, all patients are different, so saying that a doctor has a duty of care does not tell us exactly what that doctor should do. That would depend on the needs of the patient. Under current case law, a doctor can only have a duty to offer treatment that would benefit the patient. That point is crucial. A doctor's omissions in respect of providing beneficial treatment to a patient to whom she owes a duty of care can be just as culpable--

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just as unlawful--as a positive attempt to kill that patient using a toxic drug. However, under current case law, when treatment is of no benefit to a patient, a doctor has no duty to provide it. Failure to provide such treatment, even when it is of no benefit, is an omission, but it cannot be unlawful even if the patient dies of his or her illness as a result. Equally, under present law the doctor has no duty to provide a treatment that the patient refuses. If a patient is offered and refuses treatment, the doctor's omission in not providing it cannot be culpable.

The Bill proposes a radical change in the law surrounding the withholding or withdrawal of treatment--not so much in terms of the intentions described by the hon. Member for Congleton, but in terms of practical application. It would switch the focus from the rights and best interests of the patient to the purpose or one of the purposes of the doctors. If it were passed, the law would judge a situation in which treatment was withdrawn or withheld not according to the decisions, rights and interests of the patient, but according to what was in the mind of the doctors.

Present law is based firmly on the rights of the patient to consent to or refuse treatment. When the patient has not made a decision in advance, and is not capable of making decisions for himself or herself, the best interests of the patient are paramount. Competent adults have the right under common law to give or withhold consent to treatment, including the use of artificial nutrition and hydration. They have that right even if that may lead to their death. Indeed, people may exercise it to bring about their own death if they so choose. People have a right to be free from unwanted bodily interference, including medical interventions. Any exception to such a right must be very seriously justified. In particular circumstances such as those governed by the Mental Health Acts, exceptions have been made, but only after careful consideration.

The Bill suggests that the law should consider each and every purpose of the doctor to decide whether an action is unlawful. It introduces a new test of "purpose", as distinct from the existing tests based on the rights and interests of the patient or, alternatively, the criminal law concept of intention, which is applicable to, for example, the homicide laws.

The hon. Member for Congleton said that she wanted to restore the integrity of the law relating to murder, but, given that the criminal laws relating to murder and manslaughter use the concept of primary intention and gross negligence rather than the concept of purpose, it is not clear how the Bill would, in practice, fit in with those existing laws.


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