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Baroness Finlay of Llandaff: I wish to clarify a point. We seem to be debating Amendment No. 2 as well as Amendment No. 1. I wish to address the issue of purpose. I understood Amendment No. 1 to be a grammatical correction, changing "his" to "the" to establish that the doctor's purpose, not the patient's purpose, was referred to. I wish to comment on purpose, but I do not want to do so now if it is the wrong time.

Baroness Knight of Collingtree: Since we are discussing purpose, the noble Baroness would be perfectly in order to make her remarks now. But we are not discussing Amendment No. 2 at present.

Baroness Finlay of Llandaff: Thank you. I feel quite strongly that we need to look at purpose. At Second Reading, the noble Lord, Lord Carlile, stated that the intention would be clear from the case notes. I contest that. In clinical practice, I do not see clinicians write, "Stop fluids to hasten death", "Stop feeding, let patient die" or even "Stop feeding, patient about to die". Every day I see clinicians write such notes as "Patient dying, take drip down", "Further attempts at insertion of drip futile" or "Nasogastric tube futile".

I can also envisage an angry relative, as the noble Earl, Lord Howe, mentioned, who has not come to terms with the state of a patient clinically, or a member of staff who wants to be hyper-critical of another for some personal reason, seizing on such an entry and claiming that the clinician acted illegally. I do not see how a clinician could defend himself or herself against an accusation of purpose. There is no way to prove that a patient's death would have been delayed, even by one minute, if a drip had been put up. The case then becomes a lawyer's dream and a clinician's nightmare.

It is currently against the law to plan to and then to bring forward in time a person's death. Yet the Bill seeks to go beyond that bald statement. It is important to clarify some of the complexities of clinical decisions. This Bill will not and cannot address bad care. Bad care is not given with the express purpose of causing death, even though it will often do so, and good care may postpone death. But it is worth remembering that sometimes good, compassionate carers will accept death and avoid torturing patients with futile interventions.

Much has been said about the Bland judgment. As a practising clinician, the Bland judgment has forced clinicians to be clearer in their thinking and decision-making over the withdrawing or withholding of intervention. I have seen the situation from both sides.

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As a clinician, I see the other doctors and nurses around me become clearer in deciding whether they think an intervention will be burdensome with no benefits, whether it will be risky with little benefit, or whether the benefits will outweigh those. But clinical decisions are not absolutes.

This weekend I have tragically been on the receiving end of care, with someone very close to our family in intensive care. The decision-making was impeccable. Everything was done with the intention to prolong life. That was considered and continued even until it was decided to look to establish whether there was brain death. It was when brain death was established that the intervention ceased. Intervention ceased after the death. The hospital staff did not bring forward the death by one second.

That is the sort of clinical decision-making that I now see routinely in hospitals. People are clear about not burdening patients. I do not want a return to the days of someone struggling to put a drip on a patient who is clearly dying, making a fourth, fifth or sixth attempt to get a line in when no veins are available. I do not want to see people rushing patients who are clearly dying down to X-ray on trolleys in an attempt to insert a gastrostomy tube because they are frightened that, if they do not do that, someone will accuse them that their purpose was somehow to bring forward the patient's death. My concern is that purpose will not be proven, but it leaves doctors and, to some extent, nurses open to what may well be false accusations. Also it does not address the problems of bad and inadequate care that were so eloquently alluded to—sadly, at some times—during this debate.

Baroness Andrews: The noble Earl expressed the central dilemma of the Bill. At Second Reading, I discussed at some length the dilemma as the Government saw it. I certainly do not want to repeat my remarks. The fact that there have been several different interpretations of the amendment from different sides of the Committee suggests that there is an element of confusion. It might add to uncertainty if the amendment stays where it is.

I reiterate that I am not sure that by changing "his" to "the" we address the central dilemma of the Bill. As other Committee Members have said, in current law and practice, if something is done to a person in the knowledge that it will cause their death, the law will treat the perpetrator as having intended to cause death. It is clear that death is always a certainty if nutrition and hydration are withdrawn and if that withdrawal is maintained. The person who withdraws or withholds sustenance will almost certainly be treated in law as having intended to cause the patient's death, no matter what other factors have come into play. Committee Members have been saying that very eloquently today. The Bill allows no room for judgment as to the relative benefit to the patient of providing sustenance, nor does it allow room for any consideration of the patient's best interests. So the dilemma is not resolved whether the Bill refers to "his purpose" or "the purpose".

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I appreciate that the noble Baroness was very clear at Second Reading that it was not her aim to prevent the person responsible for the care of the patient from withholding or withdrawing sustenance where it is appropriate or where the patient refuses. I accept that she has a later amendment which aims to clarify that point. However, when we come to that amendment I shall have to express further reservations and make further points. The dilemma that we have been exploring is not resolved by changing "his purpose" to "the purpose". I would counsel against introducing any additional uncertainty into what is a very complex area of medical and legal ethics.

8 p.m.

Baroness Knight of Collingtree: I am happy to look at this whole question for Report. I do not want any confusion. I do not think that changing "his" to "the" has increased any doubt or puzzlement on this matter. But if it has, I shall look at it again. I wonder if I may—

Lord Clement-Jones: I think there may be some semi-colour confusion here. The problem is not the use of the word "purpose"; it is that this clause, in a sense, is the wrong way round. The noble Baroness read out the BMA guidance but it seems that she did not take the full sense of it. Basically, the BMA said that treatment, including artificial nutrition and hydration, may be withdrawn if the purpose—it uses the word "purpose" quite rightly—of doing so is to withdraw treatment which is not able to provide a net benefit to that patient in terms of maintaining or restoring the patient's health to a level he or she should would find acceptable.

It seems to me therefore that the noble Baroness's amendment is drafted entirely the wrong way around. What it would do is criminalise a whole cohort of doctors because it does not take into account that the purpose is to provide a net benefit to the patient. That is the point, but it completely escapes because of the way it is drafted.

Baroness Knight of Collingtree: I can only repeat that I shall certainly look at what has been said with great care before Report stage. While I am on my feet, I am sure that your Lordships will join me in extending sympathy to the noble Baroness, Lady Finlay, for what has clearly been a very traumatic experience during the past day or so. I am sure that we all feel sorrow about that.

While I will look at the matter again, I should like to add that I do not understand why, if the BMA is quite clear as to what the word "purpose" means, I am not. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Knight of Collingtree moved Amendment No. 2:

    Page 1, line 4, at end insert—

"( ) If the consultant in charge reaches a decision to withhold or withdraw sustenance, he must record the reasons for so doing in the patient's notes."

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The noble Baroness said: This amendment is inserted to meet comments at Second Reading and also because the BMA's guidance advises that details should be clearly recorded in the patient's notes; that is, when, why and by whom the decision was made to withhold sustenance. The BMA itself says that. Therefore, surely there can be no objection to my wishing it to be clearly stated in the Bill, because guidance is not law. No aggrieved relative has ever mentioned any written record of why the death decision was made, and advice and guidance, we all know, is very often ignored.

It is very different indeed to advise that such and such a procedure should be adopted and to ensure that it is so adopted by a law. If it is law, and not just guidance, notes will be carefully made and will be available for scrutiny. I think that should help doctors a great deal. That is probably why they themselves were anxious for it to happen. Furthermore, it would ensure that doctors had thought extra carefully about exactly what they were doing and why. I cannot see why there should be any objection to the amendment which seeks only to do what the BMA desires. I beg to move.

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