---

Mr. Drew: Some of us would find the whole debate much easier if Lord Joffe's Bill had reached this place and we had made a clear decision—which, in my case, would have been totally against euthanasia. The debate has a backcloth of uncertainty, which is why some of us are finding it difficult. Once we have put that issue to rest, we can return to what this Bill is trying to do. Would my hon. Friend care to comment?
 
14 Dec 2004 : Column 1545
 

Mr. Howarth: To be honest, no. It is not that I am afraid of the argument; my hon. Friend is trying to get me to debate something that is not part of new clause 4 or amendment No. 2. As those who support new clause 1 have conceded, and as clause 58 makes clear, it forms no part of the Bill. I agree with my hon. Friend on one point, however. Had I had any responsibility for the programming, I would have concluded that it would be easier to have this debate if we had had the other debate first. But unfortunately we do not have that luxury, and must deal with what is before us.

I promised to give way to my right hon. Friend the Member for Manchester, Gorton (Sir Gerald Kaufman), but I feel that I should make progress after that.

Sir Gerald Kaufman: My hon. Friend thought it appropriate, and necessary, to read out clause 58. Does he nevertheless agree that if the fear that the Bill would bring in euthanasia by the back door did not exist, the Government would not have found it necessary to table that clause? In seeking to say that the Bill is not about euthanasia, it demonstrates that however much the Government may try to dodge the issue, euthanasia is a factor in consideration of the Bill.

Mr. Howarth: My right hon. Friend and I crossed swords in a slightly different context last night. I said then that I was always loth to enter into a disagreement with him, on two grounds: the ground that I have enormous respect for him, and the ground of self-protection.

My right hon. Friend makes his own serious point in his own serious way, and I think it would be more appropriate for my hon. Friend the Minister to respond to it. I cannot take responsibility for my hon. Friend. I should be delighted to do so were he to ask me, but as he has never asked me I shall not.

I have been trying for some time to make one or two general points about the amendment and the new clause before moving on to the more detailed argument. When I tabled the amendment, I was deeply conscious that I risked offending Members who have the same broad objectives as me, but wish to arrive at the same conclusion by a different route. To an extent, that risk has already been evident. I can only say that I recognise the absolute sincerity that those Members have brought to the debate, and hope they recognise that I am equally sincere. My disagreement with them relates not to their sincerity or objectives, but to how we can get to the best possible place. I believe that most Members, and most of the general public, want to get to the same place. The choice between the new clauses and amendments we are discussing is about how we get there. It is not that we want to be in different places; it is a question of which route we take.

I hope that I shall not offend too many Members, because the hon. Member for Tiverton and Honiton and I are genuinely trying to build a realistic consensus. Like the right hon. Member for Chingford and Woodford Green, I am not a lawyer, but I have some years' experience as a Member of Parliament. That has given me insight into the need for the language of legislation to be kept simple, and the need always to be alert to the
 
14 Dec 2004 : Column 1546
 
fact that the more words we apply to complex moral issues such as this, the more the meaning of those words and the intention behind them can cause confusion and lead to misinterpretation. For those reasons, as I said earlier, I have gone to a great deal of trouble to consult those who take a strong interest in this matter, in the House and elsewhere. That includes my hon. Friend the Minister.

I do not claim that the wording of amendment No. 2 and new clause 4 is perfect as it stands, but I believe it serves the objectives that I mentioned a moment ago. In what I considered a thoughtful speech, the right hon. Member for Chingford and Woodford Green said that he wanted to apply a simple test—to find in favour of life. I do not think that I have misquoted him. That is why, in amendment No. 2, I refer in terms to that very issue. The presumption in the amendment is that it is in a person's interests to stay alive—to be alive—rather than the alternative.

I made the wording simple because I think it carries the spirit of the Bill with it. It adds a qualification to the "best interests" referred to in clause 1(5). In other words, it is in the patient's best interests, in most circumstances, to stay alive. In my view, that gives a strong and clear signal to medical practitioners, and anyone appointed to act as a proxy or advocate, without giving them a set of instructions that in many cases they might be obliged to follow, even though they would not add to the comfort or dignity of the patient. Indeed, there will be cases in which the opposite will be the case.

Mr. Gordon Marsden (Blackpool, South) (Lab): As was made clear at the start of the debate, a key issue is the ability of some advance decisions to be flexible. Does it worry my hon. Friend that, in taking account of what the best interests of a patient might be, doctors and medical authorities might place too much emphasis on what might or might not have been said by that patient five or 10 years earlier? We have all heard the eloquent description given by my hon. Friend the Member for Crosby (Mrs. Curtis-Thomas) of the case of her mother, which is a classic illustration of why it is important to preserve flexibility. Does my hon. Friend feel that the wording of his amendment would allow doctors to make their decisions largely on the basis of the physical state of the person before them, rather than on what they might have said five or 10 years earlier?

1.30 pm

Mr. Howarth: This is a hugely complicated area, and I hope that so far I have avoided trying to score points or to make party political or other arguments. The reality is that the circumstances that my hon. Friend describes—and which were indeed described eloquently on a previous occasion by my hon. Friend the Member for Crosby (Mrs. Curtis-Thomas)—will not always be as simple as he suggests. There might be an advance directive or a living will that makes clear the person's wishes in terms that are appropriate in those circumstances. Most such cases could be dealt with, but it may well be that somebody has made an advance directive that does not take account of their current circumstances. Such cases will prove a struggle, and there is no way of avoiding that. There is the question of what is in the person's best interest medically, and the proxy's view as to what is in their best interest. Both will have to be taken into account.
 
14 Dec 2004 : Column 1547
 

Let me deal briefly with an issue to which I shall perhaps return at the end of my speech—if I ever get there. [Interruption.] I am going as quickly as I can; I have accepted a lot of interventions. I accept that whatever we decide today, a great many cases will still have to be decided in the courts. That is an inescapable fact of life.

Mr. David Kidney (Stafford) (Lab): Will my hon. Friend give way?

Mr. Howarth: If my hon. Friend will forgive me, I will not. There is a time limit and several Members seem to be indicating that I am taking up time that in their opinion, they should be able to use to express their views. For that reason, I shall not take any further interventions but move towards my conclusion.

One of the strengths of the debate surrounding this issue has been the personal examples on which many people have been able to draw, not the least of which are the experiences that my hon. Friend the Member for Crosby described on Second Reading. Such experiences are difficult and emotionally wrought, and they have added to our understanding of what can go wrong, as well as what can go right. But we need to be conscious of the fact that it is very difficult to arrive at a general legislative proposition from particular examples. In fact, because each case is unique, it would be wrong to create a single template to govern an infinite variety of individual circumstances, and my fear is—I say this in as friendly a way as possible—that new clauses 1 and 2 do exactly that. They establish a set of instructions for people to follow in these very difficult circumstances. As the adage has it, hard cases make bad law.

It was the hon. Member for Tiverton and Honiton who caused me to think further about this issue. Initially, I held the view that the "best interest" test, which first appears in clause 1(5) and subsequently in clause 4, was the right approach, in that it was sufficiently straightforward but also allowed adequate discretion as to what was appropriate in each individual case. However, the hon. Lady pointed out that in cases where hydration might not be appropriate, it could still be extremely uncomfortable for a patient to be left with a dry mouth, for example. Moreover, since such patients would probably be unable to communicate their discomfort, in many cases their need could be left unmet, either through lack of awareness—that is always a possibility in a busy hospital ward—or neglect, which is also possible. It was that concern that set me on this course.

The British Medical Association tells me that this is a matter of basic care, which is normally down to good nursing practice. Thirst can be detected by a simple oral sponge test and remedied by proper oral care. I should make it clear that amendment No. 2 expects such basic care to be carried out in those circumstances.

---