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Mr. Leigh: Does the Minister accept that a doctor who turns off an artificial breathing apparatus does so not with the intention of ending life, but with the intention of ending a treatment that can no longer serve its purpose, namely the recovery of the patient? In those circumstances, that doctor would not be affected by the Bill.
Yvette Cooper: The interpretation of "intention" can include what someone regards as being likely to happen, and what someone can know as the likely consequences of his or her decision. I shall say more about that shortly, and attempt to answer the hon. Gentleman's question in more detail.
I wonder whether the use of the words
Used in this sense, "purpose" appears to carry a meaning close to that of "motive". In law, the word "intent"--a concept that the hon. Member for Congleton has tried to avoid--is currently used, rather than "purpose" or "motive"; but it is not clear what "purpose" actually means. Under the Bill, attempts could well be made to interpret it in line with the legal concept of intention.
It is important to recognise what that would mean. I shall not take up the House's time with a full account of the criminal law concept of intention, but I want to highlight one aspect. Questions of intent are determined by juries following appropriate direction by the judge. The factors that they must take into account may include the probability of the outcome, and the extent to which it was foreseen by the defendant, even if it was not the main intention behind the defendant's action. From that they may infer intent, which, in law, is very different from motive or desire.
We should consider some of the consequences of change, whether it is to "purpose" or to "intent". The hon. Member for Congleton has made it clear that she wants to leave undisturbed the current position, whereby a competent adult can refuse medical treatment, but I do not think that the Bill does that. For one thing, it makes no distinction between patients who are competent to make their own decisions and those who are not: the same arrangements would apply to all.
If a doctor knew, virtually for certain, that withholding or withdrawing treatment--even at the patient's request--would result in the patient's death, and if the current legal concept of intention were applied, the doctor could be held to have intended the patient's death. The Bill would make it unlawful for a doctor to respect a patient's rights.
Even if the term "purpose" is given a more everyday meaning, the Bill requires every one of the doctor's purposes to be considered before it is decided whether withholding treatment at the patient's request is lawful.
Mr. Ashton:
Is not the purpose of the Bill deliberately to introduce confusion, and to provide a deterrent? Is it not intended to frighten doctors away from taking any specific action?
Yvette Cooper:
I certainly think that its consequences would be confusing, and that there would be a good deal of reliance on its interpretation by the courts. It is important to spell out those consequences.
Sir Raymond Whitney (Wycombe):
I am no lawyer and am deeply confused by what the Minister is saying,
Yvette Cooper:
As I have tried to make clear, if the doctor has a duty of care towards the patient and if treatment to which the patient has consented will be in his or her best interests and beneficial, intentionally to withhold it will fall under "purposes or intention" and be unlawful. That is the current law.
Dr. Julian Lewis:
It is a simple point of logic. I thought that I heard the Minister say that, to check whether one of the doctor's purposes was the termination of life, it would be necessary to know what all his other purposes were. That is a logical fallacy and simply untrue. All we have to do is look at his purposes until we find the one we are looking for. We do not have to know all the rest. There is a logical flaw in what the hon. Lady says.
Yvette Cooper:
The law says that it will be unlawful if the purpose, or one of the purposes, of the doctor is to hasten death. As soon as we find that one of the purposes was to hasten death, we have found that the doctor's decision is unlawful. That does not help us in a case where the purpose is not unlawful, or if we think it should not be unlawful.
Mr. Blunt:
The intervention of my hon. Friend the Member for Wycombe (Sir R. Whitney) was clear. He said that the Bill would make the law extremely clear. The Minister is approaching the matter from a position of complete rationality, mentioning doctors trying to make sensible decisions with all the competing difficulties, but the Bill will make the law completely clear. It will turn the hon. Member for Isle of Wight (Dr. Brand) and all the other doctors who make these difficult decisions every day into murderers.
Yvette Cooper:
Implementing the Bill as it stands would certainly have complicated effects, making decisions unlawful that the hon. Member for Congleton does not want to make unlawful. The doctor's main purpose may be to respect the competent patient's right to refuse treatment. The Bill means that any other purposes that the doctor may have in respecting that request should be relevant, too. That would make the lawfulness of respecting the patient's rights dependent on the mindset of the doctor, not the patient's rights in the first place. The hon. Lady has made it clear that she does not intend the Bill to have any such impact, but making acts and omissions identical and focusing on the doctor's purpose would do exactly that.
Further problems arise from the Bill. The hon. Lady has said that she has no intention of preventing appropriate palliative care, or to render unlawful what is described as the principle of double effect. In such situations, clearly,
the doctor's main purpose or intention is to relieve pain, but the Bill says that all his or her other purposes are relevant.
Therefore, a doctor might be afraid to give the treatment necessary to relieve pain for fear of a potential court case calling into question what his or her other purposes might have been. I am concerned that, as a result, the Bill may lead to inadequate palliative care to patients. The Government are committed to ensuring that terminally ill patients should receive appropriate palliative care.
Many patients who need palliative care remain perfectly competent to take their own decisions about medical treatment. They may have a clear idea about the likely prognosis of their illness, and the potential effects on their quality of life. Even if the highest quality of support is available, they may still decide that they do not want to continue with their treatment.
A patient with advanced motor neurone disease, for example, may develop disabilities that make it necessary for her to receive increasing help with the tasks of daily living, such as bathing and feeding. If the person subsequently develops pneumonia, which without treatment could be fatal, she may decide that she does not want to receive that treatment, in full knowledge of the likely consequences. If the doctor understands the patient's position and desire to hasten her own death, could it be held that the doctor's purpose, or one of the doctor's purposes, was also to hasten death? For fear of that, would the doctor feel compelled to provide treatment?
As the Bill does not distinguish between the position of those who are capable of deciding for themselves and those who are not, the Bill, once interpreted in practice, could end up undermining the principle of consent.
Not all adults are capable of giving consent to, or refusing, medical treatment. That fact does not reduce or render less important the patient's human rights, and a physical intervention on the body of that person is still a violation of that person's bodily integrity. Consequently, the justification for medical treatment or intervention on any person who cannot personally consent must be considered carefully.
"purpose or one of his purposes"
will be workable in practical terms. A doctor can always state his main purpose in performing an action, which will be sufficient to explain what has been done and which the law can and does already judge. But how can we know whether the doctor has another purpose as well? How often can we say that we know all the purposes of the people whom we know best--not just their main purpose, but one of their other purposes, even if it is as simple as doing the washing up? Just as we can never completely know the minds of those closest to us, the law has no mechanism for finding out every purpose of the doctor. As I have said, I fear that the Bill would be unworkable in practice.
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