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Baroness Knight of Collingtree: I—

Baroness Masham of Ilton: Before the noble Baroness sums up, I should like to add a few words. Since the previous stage of the Bill, the young daughter of a friend of ours died in hospital. She had cancer. In the last stages she could not swallow but her mother sat by her bed and sprayed her mouth with water, keeping her comfortable. In the end, with her friends around her, she died. That is a natural way of dying, and it is very easy for a doctor to write in his notes that the patient stopped eating because she could not swallow. There is no problem there. Sometimes, people try to make things too difficult and complex. It is not necessary to have secretaries to write up the notes. Doctors—if we can read their writing, which sometimes has to be improved—can easily write the simple truth down.

I agree with the noble Baroness, Lady Park. It is now vital that people have reassurance that patients going into hospital will be protected and not starved. People are worried. I have had hundreds of faxes and letters today with signatures; they have been rather busy next door. We must do something. It is our duty in Parliament to protect people when they feel that they need protection. The House is very good at getting Bills right if they are not quite right. The noble Baroness, Lady Knight, is willing to take everyone's concerns on board, especially the Minister's, so I hope that we can get this Bill right.

Lord Joffe: If one records something in legislation, it is true that it will reinforce what the guidelines and general medical practice lay down. However, it is very dangerous to get into a mode of over-legislation. The guidelines run to 22 pages. It could be argued that most of those guidelines should be part of legislation. It is now normal practice for doctors to record their

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reasons. Once there is provision for something, there is no need to bring in legislation to confirm what is already happening.

Lord Tombs: We are dealing with a very sensitive area, that of the relationship between the doctor and the seriously ill patient. We have to be very careful how we tread. The debate has taken a course that I regret. I remind Members of the Committee that the Bill is entitled Patients' Protection Bill, not doctors' protection Bill. It is patients with whom we should be concerned today. That does not mean that I want to make life more difficult for the doctors. We have to deal with them, and allow them to do a very difficult and sensitive task.

It is not at all unusual in life and in criminal law to have to prove that one has acted properly. It happens in driving motor cars, building bridges and all sorts of activities. I see no reason why doctors, with their particularly sensitive operation, should be exempt from that. Doctors have to take the same precautions in showing that they are acting reasonably, professionally and responsibly as other professionals in life today. I make the plea that we think about the vulnerable patient—the passive recipient—and a little less about the professional who has a duty to discharge.

Baroness Knight of Collingtree: I am most grateful for what we have heard. Many comments made by Members of the Committee related clearly to the questions asked. What troubled me most in the speech of the noble Baroness, Lady Finlay, was that she explained that the rule was there but was not adhered to. She said that it was not possible to adhere to it, because there were not enough secretaries. I do not think that I am wrong; I was listening.

Baroness Finlay of Llandaff: It is standard practice to keep medical records. In fact, doctors have been struck off for failing to keep adequate clinical records. The difficulty I have with having the provision on the face of the Bill is that it will become a charter for lawyers to argue over the minutiae of the wording and infer a purpose which is not there.

Many complaints are made—sadly, the majority are justified. Sometimes malicious complaints are made and people will try to drive a coach and horses through wording, even when someone has recorded what he intended and why he intended it. The written records are made in note form, and are not able to be made in full sentences using legal language which will ensure that there is no loophole anyone can get through. That is the perspective from which I approach this issue.

Baroness Knight of Collingtree: I must strongly disagree with what has been said. I do not believe for one moment that there has been any suggestion that all the notes must be in legalese. We all understand that doctors are not lawyers. None the less, doctors are perfectly capable of placing their reasons for their actions clearly and unequivocally.

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It was true that the noble Baroness, Lady Finlay, told the Committee that, rule or no rule, the process was not being carried out. I will not concern myself with the reason, but it is important to recognise that we are trying to defend and help patients who are increasingly frightened to go into hospital. Let us not debate the matter; that is happening.

As I said when I moved the amendment, it should be the law that such a statement must be made clearly. I say to my noble friend Lord Howe that dying is an important matter and a consultant will be in charge. A night nurse will not be given charge of the patient—we shall turn to another point about that later.

I am anxious that the records should be clear, specific and understandable. I cannot believe that this House believes that an amendment such as the one I move is unreasonable. I wish to test the opinion of the Committee.

8.27 p.m.

The Deputy Chairman of Committees (The Countess of Mar): The Question is that Amendment No. 2 be agreed to. As many as are of that opinion will say "Content"; to the contrary, "Not-Content". Clear the Bar.

Division Called.

Tellers for the "Not-Contents" have not been appointed pursuant to Standing Order 54. A Division therefore cannot take place, and I declare that the "Contents" have it.

Amendment agreed to.

Lord Swinfen moved Amendment No. 3:

    Page 1, line 8, leave out "or" and insert "and"

The noble Lord said: Amendment No. 3 is purely to clarify that sustenance means both nutrition and hydration and not one or the other. I beg to move.

On Question, amendment agreed to.

Baroness Knight of Collingtree moved Amendment No. 4:

    Page 1, line 9, at end insert—

"(3) No offence shall be committed under subsection (1) if the patient refuses sustenance."

The noble Baroness said: I believe most strongly that a doctor has a duty to honour the wishes of every one of his patients. This is not Nazi Germany. Clearly it is an offence to treat a patient against his or her will. I tabled this amendment in response to the fear expressed to me by some doctors that they may be in trouble under the Bill if they withdraw artificial feeding when a patient has said that he did not want a peg in his stomach or a tube in his nose. A doctor would have a perfect defence in those circumstances. He could and should put in his notes relating to the case his clear and entirely reasonable reason for halting artificial feeding.

I believe that it is extremely important to recognise that we must not treat patients in any way against their will. I am firmly of the opinion that there is no easy

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way to say that sometimes it would be possible to do that and still be ethical. In a humane and Christian country we cannot contemplate treating patients in a way that they have specifically said they do not want to be treated.

When I sought to table this amendment I hoped that Members would recall what was said at Second Reading and agree that this was virtually asked for. Where a patient refuses sustenance he should not be forced to have it. That is simply what the amendment says and I hope that it will not be opposed. I beg to move.

Lord Alton of Liverpool: I support the amendment that the noble Baroness, Lady Knight of Collingtree, has just moved.

At Second Reading, the right reverend Prelate the Bishop of Oxford and my noble friend Lady Finlay of Llandaff spoke of the position of patients who might not want to be given treatment that would keep them alive against their wishes. The noble Baroness, Lady Knight of Collingtree, made clear her intentions at Second Reading, but I am glad that she has moved the amendment. We debated the issue of patient consent or refusal at some length.

At Second Reading, my noble friend Lady Finlay of Llandaff expressed concern that the Bill failed to acknowledge the position of the patient who considers the possible benefits of the provision of sustenance to be outweighed by the burdens. She said:

    "The competent patient has the right to refuse artificial hydration, even if it may be considered of clinical benefit. Incompetent patients retain that right through a valid advance refusal".—[Official Report, 12/3/03; col. 1419.]

I agree strongly with what she said. There is no disagreement between us on that point.

The amendment would clarify the position. If a competent patient refuses sustenance, no offence will be committed under the Bill if the medical staff do not provide sustenance. As I said at Second Reading, a doctor's respect for a competent patient's refusal of sustenance would involve no intention on his part, other than a concern not to commit the tort of battery, of which he would be guilty in imposing sustenance contrary to a competent patient's wishes.

My noble friend Lady Finlay of Llandaff also noted that the Bill did not cover the provision of oxygen to patients or other essential aspects of patient care, such as turning a patient in order to avoid bedsores. The simple reason for that is that our courts have yet to say that the provision of oxygen or the turning of a patient can be stopped with the purpose of hastening or otherwise causing the death of the patient. To do that would still be illegal in this country. However, since the judgment in the Bland case of 1993, to which reference has been made this evening, the killing of non-dying patients in a persistent vegetative state and in similar conditions by the withdrawal or withholding of sustenance has been legal. Hence, the Bill focuses on sustenance, not on the provision of oxygen or turning in the bed.

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We recognise that the provision of oxygen and the practice of turning patients represent basic care, but sustenance is also a basic human need that should never be withdrawn or withheld, if the purpose in doing so is to hasten or otherwise cause the death of the patient. For those reasons, the amendments would be helpful, and I strongly support them.

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