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Jim Dobbin (Heywood and Middleton) (Lab/Co-op): I am chairman of the all-party pro-life group, so I speak personally and in that capacity. It is evident from the interventions that we have heard so far in the debate that interest in the Bill is high and that people are taking it extremely seriously. Some of the points that I intend to make mirror some of the interventions and may be the basis of some of the amendments to be tabled in Committee.
I agree with my right hon. Friend the Member for Rother Valley (Mr. Barron) that we need legislation to protect people who lack capacity, but any such legislation needs to be safely and tightly drafted to ensure that they are properly protected. I support the
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principle of creating a statutory framework to protect those individuals who lack mental capacity. However, I am strongly opposed to those clauses in the Bill that could—I use that word advisedly—introduce euthanasia by omission, and I listened very carefully to my hon. Friend the Minister on that issue when it was raised in interventions. There are many individuals and organisations with legitimate concerns about that issue. When my hon. Friend the Minister responds, I hope that she will clarify the situation as regards the case of Bland. I would like it put on record whether the Bill will enshrine the decision in Bland in legislation.
During the past 12 months, I have met Ministers on several occasions to try to set out my serious concerns and those of others about the Bill. I am grateful to the Government for their willingness to engage with concerned parliamentarians and especially grateful to Lord Filkin and my hon. Friend the Minister. We welcome the important changes that the Government have made to the Bill, especially clauses 58 and 26(2) on advance decisions. Those are not cosmetic changes, as has been suggested in some quarters.
I am disappointed, however, that the Government have so far failed to amend the Bill to meet our concerns about the suffering that will be caused to many incapacitated adults if certain provisions are enacted. I was particularly struck by the powerful representations that I received from organisations representing disabled people. I am not convinced that we are listening to their concerns about the way that the Bill would create an imbalance in legal power between the appointed decision maker and the person deemed to be without capacity.
I accept the tremendous job done by carers. I have two grandsons who have a physical disability so I am well aware of the contributions made by carers, but who are we trying to protect in the Bill—carers or mentally incapacitated adults? Surely, it must be the latter, and I fear that organisations promoting the Bill, in particular the Making Decisions Alliance, may be paying too much attention to the needs of carers and too little to the needs of those who lack capacity.
Last week, I was struck by the fact that Mencap—a key member of the Making Decisions Alliance—criticised the High Court judgment in the case of baby Charlotte on the ground that doctors should not make assumptions about the quality of life of disabled children. The long-term ramifications of that case pale into insignificance beside those of the Bill, and I am surprised that Mencap has not been more critical of the provisions that would allow attorneys and medical professionals to make quality of life judgments about mentally incapacitated adults.
It would be disastrous if the Bill, which has the laudable aim of transforming the lives of mentally incapacitated individuals and their carers, were to become a vehicle for the introduction of euthanasia and assisted suicide. Vulnerable adults who are supposed to be protected by the Bill would be placed at grave risk.
There are three main ways in which the Bill could weaken our legal prohibitions against euthanasia and assisted suicide. First, the Bill introduces legally binding advance decisions to refuse treatment, or living wills, as they are more commonly known. In principle, I accept that an individual can give an advance refusal to
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treatment and I have no objection to medical professionals upholding a refusal that is recent, well informed and not motivated towards suicide. However, medical professionals should not be legally obliged to respect a refusal that is made on the basis of inadequate information and/or has the aim of ending life.
Legally binding advance refusals of treatment will make it difficult for practitioners faced with the need to make rapid decisions in acute medical emergencies to decide when an advance directive is valid and applicable. Fear of litigation may result in medical professionals withholding appropriate care, with resultant harm to the patient—a comment made in an intervention earlier. That is not about looking after the interests of medical professionals; if doctors and nurses are legally obliged to respect ill-advised, vague but apparently binding advance refusals, it is the incapacitated patient who will suffer.
I ask the House to consider the following scenario. A suicidal patient may prepare an advance directive that clearly specifies that they have taken a particular drug and that they refuse to have their stomach washed out or to receive an antidote. The circumstances and the refusal of life-sustaining treatment have been specifically addressed so the advance directive would appear to be legally binding. Medical professionals would be legally barred from attempting to resuscitate that patient and if the overdose was not fatal the patient could be left with significant permanent and disabling organ damage. It is because of such scenarios that I oppose making advance decisions legally binding.
Mr. Duncan Smith: May I take the hon. Gentleman back to the point that he was making about suicide? I agree very much with what he says, but is he not making the point that the Government have not faced up to the problem that in the case of a suicide those decisions are taken very, very speedily? They talk about provision to challenge the view of the patient who is incapacitated, but that challenge must be a legal one, so it cannot happen at the time. A doctor's judgment to make such a challenge, which turns out to be wrong, may end up with the doctor suffering. That key point is nowhere addressed in the Bill.
Jim Dobbin: I have just been making that point in my contribution, so I agree with the right hon. Gentleman.
When giving evidence to the Joint Committee, Baroness Finlay of Llandaff—an expert in palliative medicine—said:
"Advance refusals are very helpful for communicating with patients. It is terribly helpful as an idea of what patients want. My concern is that they are legally binding and then you have to sit back and watch something happen that you just feel terribly uncomfortable with."
According to an independent survey of doctors conducted by Opinion Research Business for Right to Life in May last year, 76 per cent. of doctors indicated that they shared the concern of the House of Lords Select Committee on Medical Ethics that patients could deprive themselves of medical treatment developed after they had signed their directives. Almost half the doctors
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polled—49 per cent.—would seek advice from a colleague if they had an advance directive saying "no tube feeding" and were unable to confirm the directive at the time of treatment. Most doctors—71 per cent.—claimed that they would disregard an advance directive in circumstances where they felt it would cause harm to the patient or did not seem to apply.
Mr. Grieve: The hon. Gentleman is making a very important point. He may agree that, in Committee, we need to look carefully at the definition of advance directives and what they can allow. It is one thing to have an advance directive that indicates a person's preference in the period leading up to death; it is quite another thing for someone to express a preference that will result in death when it would not otherwise happen.
Jim Dobbin: Yes, that is why I hope that all these issues will be clarified in Committee.
The Bill's proposals on advance decisions could force medical professionals to remove life-sustaining nursing care, including food and fluids, and medical treatment from mentally incapacitated individuals, thereby causing death. That can hardly be said to enhance the interests of those who lack capacity.
The second way in which the Bill could weaken our legal prohibition on euthanasia and assisted suicide is through its provisions on lasting powers of attorney. Those provisions will cover health care as well as financial matters and allow third-party or proxy decision makers to direct medical professionals not to treat a patient. Those proxy decision makers will also be able to direct medical professionals not to provide life-sustaining treatment when they have been granted such authority by the patient when competent. Under clause 6(5), medical professionals may be acting unlawfully if they do anything that conflicts with what the attorney has decided.
There will certainly be circumstances where the mentally incapacitated patient's family will benefit financially from his death. Under the Bill, the proxy decision maker will have the power to refuse treatment, so hastening that patient's death. That possible conflict of interest is not addressed in the Bill. The attorney's decision must be respected even though it is the patient, not the attorney, who stands to suffer from the decision. We are all well aware of the pressure under which doctors and nurses work in the NHS. I fear that, when they would like to challenge an attorney's decision, hospital staff will simply not have the time and resources to do so. I am afraid that the Government have yet to address the problems associated with lasting powers of attorney.
The third way in which the Bill could weaken our legal prohibition on euthanasia and assisted suicide is in its definition of best interests. It is argued that decisions made for, or on behalf of, those who lack capacity must be in their "best interests", thereby providing an important safeguard against abuse and the practice of euthanasia or assisted suicide. Best interests constitute the over-arching concept in the Bill. The Government regard the best-interests test as objective, but I disagree. At present, the Bill's definition of best interests is dangerously subjective, with too much emphasis on an incapacitated patient's wishes or what somebody else imagines will be his or her wishes.
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Consider the following scenario: medical professionals wish to treat a patient who lacks mental capacity, but they come up against a relative or friend waving a piece of paper appointing him or her as attorney with authority to refuse medical treatment. The attorney instructs the medical team to stop treating the patient, telling the team that that is what the patient would have wanted; it is in his or her best interests. Unless the definition of best interests in clause 4 makes it clear that the consideration of best interests must take into account the person's life and health in so far as they could properly be the object of health care, I cannot understand how the medical team could overrule the attorney's instructions in my scenario. Decisions that are clearly contrary to the patient's medical or clinical best interests but reflect other people's wishes and feelings will be made. The Adults with Incapacity (Scotland) Act 2000 is much stronger on this point and refers to the patient's "benefit". I hope that we can take that on board in Committee.
If our aim is the protection of vulnerable adults who lack mental capacity, we are not going the right way about it in the Bill. Let me give another example. Clause 31(5) authorises non-therapeutic medical research on the mentally incapacitated. Allowing research to be conducted on mentally incapacitated individuals that does not actually benefit them does not fit well with the underlying principle in the Bill that acts done for or on behalf of a person who lacks capacity must be done in his or her best interests. Perhaps the Minister could elucidate that further.
If the Government want to strengthen protection for vulnerable adults and prove their frequently expressed opposition to euthanasia—I accept the sincerity of that—I urge them, as a minimum, to insert a clause making it clear that the Bill gives no statutory authority to any decision made with the purpose of causing the death of the person about whose personal welfare the decision is made. Such a clause would make it crystal clear that the Bill does not permit euthanasia and would build on the welcome declaratory provision in clause 58.
An amendment to clause 60 is needed to ensure that the definition of treatment excludes food and fluid, howsoever delivered, in order to prevent patients from being deliberately killed by dehydration and starvation. The recent High Court judgment in the Leslie Burke case declared that current General Medical Council guidance on the withdrawal or withholding of food and fluid delivered by artificial means is unlawful in some cases. As the Bill reflects that current GMC guidance, it must now be amended.
We must not forget that the pro-euthanasia lobby sees the withdrawal and withholding of treatment and care from non-dying incapacitated patients as the first step towards the legalisation of euthanasia. Helga Kuhse, past president of the World Federation of Right to Die Societies, and a leading contemporary ethicist, has said:
"If we can get people to accept the removal of all treatment and care—especially the removal of food and fluids—they will see what a painful way this is to die and then, in the patients best interests they will accept the lethal injection."
The Government's assurances about the Bill's practical implications do not in my view go far enough. The risks of abuse are real. Unless and until I receive further assurances from them, I will be unable to support the Bill today. I intend to abstain and reserve
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my position until Third Reading, when I will be able to judge whether they have responded to my concerns in Committee or on Report. The legislation will need a fair period for debate, and I hope that they will allow it that.
5.52 pm
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