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Page 18, line 13, leave out ("In section 21(1) of that Act") and insert--
("(1) Section 21 of that Act (jurisdiction of the Employment Appeal Tribunal) is amended as follows.
(2) In subsection (1)").
Page 18, line 15, at end insert--
("( ) After subsection (3) insert--
"(4) The Appeal Tribunal also has any jurisdiction in respect of matters other than appeals which is conferred on it by or under--
(a) the Trade Union and Labour Relations (Consolidation) Act 1992,
(b) this Act, or
(c) any other Act."").

On Question, amendments agreed to.

Schedule 2 [Repeals]:

Lord Archer of Sandwell moved Amendment No. 11:

Page 20, leave out lines 14 to 16.

The noble and learned Lord said: My Lords, I beg to move.

Baroness Blatch: My Lords, I wonder whether the noble and learned Lord, Lord Archer, could now reverse my previous advice? We are trying to find the noble Lord, Lord Lester, who thought it would be a long time before he was called. If the noble and learned Lord would care to elaborate a little on Amendment No. 11, long enough for the noble Lord, Lord Lester, to appear in the Chamber, we should be grateful.

Lord Archer of Sandwell: My Lords, I am always willing to assist in these matters and I am grateful to the noble Baroness. However, I see that the noble Lord, Lord Lester, is present and our problem is solved. I beg to move.

On Question, amendment agreed to.

Lord Archer of Sandwell moved Amendment No. 12:

Page 20, line 22, column 3, leave out ("117(8)") and insert ("117, in subsection (6)(a), the word "and" and, in subsection (8),").

On Question, amendment agreed to.

Terminally Ill Patients

7.45 p.m.

Lord Lester of Herne Hill asked Her Majesty's Government whether they are satisfied with the current state of the criminal law and medical practice in relation to the palliative treatment by doctors and nurses of terminally ill patients.

The noble Lord said: My Lords, because of my experience as counsel in a recent case I am concerned about the lack of clarity as to the criminal law and good medical practice in the palliative treatment of the terminally ill. This is despite the admirable work done

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four years ago by the Select Committee on Medical Ethics, chaired by the noble Lord, Lord Walton of Detchant.

Annie Lindsell is a remarkably courageous victim of the terrible motor neurone disease from which she has suffered for over five years. I am very sorry that she is too ill to be here this evening, as she had so much hoped.

MND is a degenerative neurological condition with no known cause or cure. It kills the nerves controlling movement so that sufferers, while retaining total brain function and being able to feel pain, find themselves gradually trapped inside a completely paralysed body.

Annie Lindsell has come to know and admire many other MND sufferers. Of those who have died, the last months of their lives have been too terrible for them to bear and for others to witness. She wishes, as is her right, to remain at home until she dies, cared for by her loving friends and companions, under the careful supervision of her doctor, her consultant and the district nurse. Along with many other MND patients she does not wish for invasive surgery, such as the insertion of a PEG tube that will only prolong a life the quality of which continues to deteriorate; nor does she want to have to live on in a doped haze.

When the quality of her life becomes unacceptable to her, as she begins to be unable to swallow and is at imminent risk of suffering severe distress, involving choking, she wants to be confident that her doctor will be able lawfully to treat her with palliative drugs to relieve her severe distress, even though the probable consequence will be to shorten her life. She wishes to know that, if the doctor agrees, she will be treated with drugs at that stage, so that she can die with dignity, fully aware of her circumstances.

The MND patients she has known were denied such treatment, despite some of them being under hospice supervision. Helplessly, they suffered appalling and unnecessary distress in the last months of what remained of their lives. Their wishes were known. They did not wish to endure the indignity of remaining helpless, unable to do anything for themselves, unable to eat normal food, at risk of choking, and in a drug-induced condition to make them less aware of their terrible condition. The only way they were able to avoid that inhuman fate was by refusing to have a PEG tube inserted. That meant that they began choking on their own mucus when unable to swallow, often while trying to eat. Their doctors terminated their distress only at a very late stage, after they had repeatedly begged to be allowed to die with dignity.

Annie Lindsell was terrified of having to endure a similar fate. She brought legal proceedings seeking the necessary assurance and peace of mind for herself and her doctor. Without the necessary reassurance that it was lawful, her doctor would not commit himself to treat her in accordance with what he and she consider will be in her best interests at the point when she becomes unable to swallow, and risks choking.

The uncertainty arose because of the early stage at which the treatment is intended to be given, and its probable effect in shortening Annie's life. Indeed,

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initially, a hospice consultant gave evidence that he considered the proposed course of treatment to amount to euthanasia. But he later changed his mind, and all the doctors, the lawyers and the learned judge agreed that what was proposed was lawful. The doctor decided he could safely give appropriate treatment when Annie begins to be unable to swallow. And the case was withdrawn.

Reasonable legal certainty is especially important where a patient is suffering from a terminal illness and facing the prospect of experiencing severe suffering and indignity. Patients have the right to life. They also have the right to personal autonomy and to live and die with dignity. They and their doctors need to know what exception there is to the law of homicide enabling a doctor, acting in accordance with his patient's wishes, and the doctor's judgment as to the appropriate medical treatment, to administer that treatment, even though its probable effect will be to shorten the patient's life. Unless the criminal law and good medical practice are reasonably clear, conscientious doctors, seeking to act in the best interests of their patients, are left in a state of uncertainty and anxiety. They may be hesitant or unwilling to give appropriate treatment in accordance with their patients' wishes.

A person who kills, with that as his intention, is guilty of murder, even though he may have been motivated by a desire to end another's suffering or to give effect to the other person's clearly and honestly-held wishes. In deciding whether there is the mental element necessary for murder, foresight of the consequences is evidence of the existence of a criminal intent. The greater the probability of death as a consequence, the more likely it is that it was foreseen, and the greater the probability that it was also intended.

There is no culpable homicide where there was legal justification or excuse. The problem is to know the nature and extent of the legal justification or excuse for what would otherwise be homicide in relation to the medical treatment of the terminally ill.

Where a doctor acts in accordance with what he considers to be responsible medical practice, with the aim of relieving pain or severe distress but with the probable consequence of shortening the patient's life, the risk to the doctor is that the jury, as directed by the judge on currently declared principles, will impute the necessary specific intent to find him guilty of culpable homicide, and the judge will have to impose a mandatory sentence of life imprisonment.

The ancient theological doctrine of double effect, brought into English law by Mr. Justice Devlin in his summing up to the jury in the Bodkin Adams case, attempts to cover administering drugs necessary for the relief of a patient's pain or severe distress in the knowledge that a probable consequence is a shortening of the patient's life.

The Select Committee observed that, if the doctor's intention is the relief of severe pain or distress, and the treatment given is appropriate to that end, the double effect should be no obstacle. They considered that juries can readily assess whether there was any reason to suspect that the doctor's real intention was to kill the patient rather than to relieve pain and suffering.

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But there are several problems. First, where the probable consequence is to shorten life the law will usually infer a criminal intent. Reference to double effect and primary intent do not explain the nature or scope of the exception of lawful justification or excuse. Secondly, the concept of what is meant by "severe distress" can be interpreted generously by some doctors (as in Annie's case) or narrowly (as in her friends' case). Thirdly, as the noble Baroness, Lady Warnock, observed during the debate on the Select Committee's report, the argument that the doctor's intention is to relieve pain and that the subsequent death is a side-effect sounds to many like a prevarication. The noble Baroness said:

    "If you know, or are reasonably certain, that an undesirable consequence will follow from what you intend to do, then in normal circumstances you are held responsible both for what you do and for the undesirable consequences. So, for example, if you know that your cat will almost certainly die if you spread weed killer on his favourite haunts, then you can hardly be absolved from responsibility for his death by claiming that all you intended was to kill the dandelions".--[Official Report, 9/5/94; col. 1376.]

I agree with the noble Baroness, Lady Warnock, that it would be better to recognise that the doctor is prepared to take a risk that the patient will die; that is, to admit that the doctor is making a value judgment. In her words:

    "judging that the relief of pain in the particular case is of more important value than the preservation of life. In other words, he is judging that the quality of the patient's life of pain is so low as to justify the probability of its coming swiftly to an end".--[Col. 1377.]

The doctor must surely have a defence to a prima facie case of murder based on foresight of consequences where the patient's life is an intolerable burden to her, the patient is dying, and the only humane treatment left is one which has death as its consequence. There is surely a defence if the doctor satisfies the jury of three matters: first, the fact that he administered the treatment in good faith for the purpose of relieving his patient's pain, suffering and severe distress; secondly, the fact that the treatment was given with the patient's informed consent; and, thirdly, the fact that the treatment administered accorded with accepted medical practice. That was the gist of Annie's case.

This approach avoids any artificial distortion of the well-established legal concepts of intention and causation. It has the crucial advantage of providing much greater certainty than would an approach based on the vague and confusing standard of "primary" and "secondary" intentions. I hope that the Minister's reply will confirm that he accepts that that is a correct approach and, if not, why it is mistaken.

The present legal uncertainty is compounded by the absence of any published guidance as to the policy of the prosecuting authorities. It is surely not sufficient guidance to the medical profession dealing with terminally ill patients merely to say: "Do what you consider to be medically and ethically correct, even though what you do is likely to shorten life, and take the risk of criminal prosecution on the basis of the concept of 'double effect' or 'primary intent'".

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It is also unsatisfactory that there is no adequate guidance to doctors from the BMA, even though it is crucial to a doctor's defence to a charge of homicide that he acted in accordance with a responsible body of medical practice. I hope that the Minister will be able to tell the House that the Government will encourage giving guidance both about prosecution policy and good medical practice.

The humane approach is surely that of the President of the Family Division, Sir Stephen Brown, in his judgment yesterday in baby C's tragic case. The President observed that,

    "whilst the sanctity of life is vitally important, it is not the paramount consideration"

--in such a case. He gave leave to treat baby C, as advised by her doctor, including,

    "palliative care to ease her suffering, and permit her life to end peacefully and with dignity".

The same compassionate approach should surely also apply to the treatment of terminally ill adult patients of sound mind.

7.56 p.m.

Lord McColl of Dulwich: My Lords, I am grateful to the noble Lord, Lord Lester, for introducing the debate. The essence of his argument is that there is a lack of clarity over the management of people who are dying. There is no lack of clarity, however, among the thousands of palliative care doctors and nurses. I have been in practice for 40 years and have never come across lack of clarity. I am very much associated with a hospice in the East End for those dying of Aids and have never come across any lack of clarity there.

There are many aspects in the distress of a dying patient--physical, mental, spiritual; all great anxieties--but they can all be dealt with in different ways. If a drug is required, we can try to establish the appropriate medication to relieve the specific symptoms. Sometimes it takes a few days to adjust the dose of the drug. But when the correct dose is achieved, it usually remains at the same level; it is rarely necessary to go on increasing it. Once a patient is free of pain, he or she often lives longer than they would have done if they had not had an analgesic. Pain itself is a killer. On the other hand, occasionally the doses required are so great that it is possible that the patient's life would be shortened by a small amount in order to achieve their comfort--the so-called "double effect".

The noble Lord, Lord Lester, sought the ruling of the court and the treatment available to Annie Lindsell. When the case came before the court, we were told that her doctor was seeking the permission of the court to administer drugs to relieve her mental and physical distress during the final stages of the disease. Why go to the High Court to ask permission for a procedure which is carried out numerous times every day in hospices throughout the land? Why not consult a specialist in palliative or motor neurone disease or, better still, both? Indeed, when the case ended, permission was granted for the doctor to administer 10mg of diamorphine every 12 hours. That is less than the doses which are regularly legally given by doctors throughout the land caring for their patients.

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Then came the most puzzling part of the case. The noble Lord, Lord Lester of Herne Hill, proudly told the media, "We won what we wanted." Far from winning what they wanted, I suggest that it was a failed attempt to legalise euthanasia in this country through case law. Annie Lindsell was seeking a judicial review legalising medically supervised voluntary euthanasia. I suggest that at the start of the proceedings the court was actually asked to permit such large doses of analgesics that they could only have resulted in the death of Miss Lindsell, thereby her becoming the first legal case of euthanasia in the United Kingdom. However, the court and its advisers saw through that. It rather looks as if those in favour of euthanasia are deliberately seeking to change our statute law by causing confusion and public anxiety and by discrediting the current legal framework; and they hope to do it through the courts. The general secretary of the Voluntary Euthanasia Society stated a short while ago that he felt Parliament would not have the courage to change the law and that change would have to come through the courts. That is exactly what happened in Holland. Those who advocate a change in the law would like to see something along Dutch lines. That is why they find our current law unacceptable. They want to keep intentional killing illegal in statute but allow it to be permitted in certain circumstances for those who want it.

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