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Lord Monson: My Lords, I had not intended to speak tonight but I am emboldened to do so by the experience of a relation of mine by marriage, who died 16 years ago at the age of 76. She was a wonderful woman—she was highly talented and creative, a successful author and almost as successful a watercolourist. Unfortunately, she suffered a stroke a few months before her death, which entirely

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deprived her of any ability to go on writing or painting. Suffering certain medical complications, she was taken to hospital, where, hating the idea of living the rest of her life as a passive observer—for her to sit watching television for 10 hours a day would be a living hell—and unable actually to do anything, she asked for sustenance to be switched off, in the full knowledge of what that entailed.

The noble Baroness, Lady Knight, said that she could not understand how the withdrawing or withholding of sustenance was intended to relieve the patient's suffering. I am afraid that it did. The undoubted physical suffering did not last very long after the withdrawing of sustenance and was far less than the suffering that she would have experienced had she continued to go on living. I support my noble friend's amendment but I suspect that the difference between the two sides is not perhaps as great as all that. I hope that a compromise can be reached.

Baroness O'Cathain: My Lords, I am moved to contribute to this debate solely by the contribution of the noble Lord. Sometimes we jump to conclusions about what people who cannot express themselves or may be very depressed feel momentarily or over a short period of time.

The noble Lord spoke movingly about his relative by marriage. My husband was in a similar situation. He suffered a massive stroke and wanted to end it all. Although he was not able to speak for almost 12 years and could not do anything other than sometimes feed himself with his left hand, he grew to have a very calm existence. Of course some of his abilities closed down: he was not able to read, write or talk. However, he had many periods of enormous happiness. He smiled a lot and he got great pleasure from seeing small children and being out in the garden.

I believe that part of the problem—we cannot put ourselves in the position of other people—was that my husband was suffering from real depression after his stroke. That was dealt with in a medical way; he was on a form of anti-depressants—I do not know the details of such things—for the rest of his life. However, it worked; it really worked. In 1989 he indicated with his left hand what he wanted, and I know that he hated me because he thought that I was keeping him alive. For many years, he got great pleasure and satisfaction and gave much pleasure and happiness to many other people. On another level—this may not be open to everyone—he came to have a deep Christian faith. He was previously what one would call a social Christian but Christianity became very much part of his existence. That in turn was a beacon to many other people. The issue is very difficult for those of us who have not suffered, and those who have suffered cannot tell us. I felt that I had to make that contribution.

8.15 p.m.

Lord Alton of Liverpool: My Lords, in Committee I said:

    "None of us wants to see officious legislation directed at doctors or nurses which makes prosecution more probable or likely".—[Official Report, 20/5/03; col. 779.]

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In addition, in response to my noble friend, none of us believes that we should go to heroic lengths to keep people alive who would otherwise die. I certainly agree with him that the officious feeding of patients against their will is outwith the terms of the Bill and is a repugnance to me, as it certainly is to him. I agree with him: I do not believe that there is a great deal between what the noble Baroness, Lady Knight of Collingtree, said and what my noble friend Lady Finlay of Llandaff said when she moved the amendment.

Subsections (1), (2), (3)(a) and—despite the comments of the noble Baroness—(5) of the amendment have much to commend themselves. For reasons that I shall explain in a moment, I would be more concerned about other aspects of the amendment. However, I think that the generous offer made by the noble Baroness, Lady Knight, to continue discussing these points with my noble friend should be accepted. Indeed, my noble friend made it clear at the outset that this was a probing, exploratory amendment which was put forward without the wish to divide the Committee on the issue today. In that spirit, I think that we can move forward to Report stage and try to build consensus around this sensitive and complex question.

I turn to the amendment and begin with subsections (1) and (2). The amendment builds on Amendment No. 4 which the noble Baroness, Lady Knight, moved in Committee. During our debates, it has become apparent that the Bill does not mention the issue of patient consent or refusal, the very point to which my noble friend alluded a few minutes ago. As drafted the Bill fails to acknowledge the patient who considers the possible benefits in the provision of sustenance to be outweighed by the burdens. So this part of the amendment helps to clarify the position. The noble Baroness, Lady Knight, said earlier that she would be very happy to accept much of the spirit of that. If a patient does not consent to the provision of sustenance then no offence will be committed under the Bill if the medical staff do not provide sustenance. It is very important to get that on the record and to get people to understand what the Bill does not do. I think that there is a legitimate fear that it might require officious feeding.

At the previous Committee sitting, the noble Earl, Lord Howe, the noble Baroness, Lady Andrews, and my noble friend Lady Masham expressed concern that we need to distinguish between patients with the capacity to make a decision and those lacking that capacity. I know that my noble friend Lady Finlay does not wish to see patients who lack capacity to take decisions for themselves put at any risk. I hope that, between now and Report stage, the amendment can be strengthened to deal with considerations of mental capacity.

The position of patients who may be put under pressure, however subtle—a point to which the noble Baroness, Lady Knight, also referred—to consent to the withdrawal or withholding of sustenance also needs to be considered. Consent given under duress represents an assault. The position is as clear as that. I know that my noble friend Lady Finlay would be adamantly opposed to the exertion of such pressure on

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a patient. It would help the Committee if that point could be clarified and my noble friend could explain how she would intend to prevent the exploitation of vulnerable patients. I think that that also would help us to reach some sort of agreement.

I turn to subsection (3) of the amendment. Like the noble Baroness, Lady Knight, I strongly support the spirit of what is expressed in subsection (3)(a). However, I have reservations about the rest of the provision. I know that my noble friend is concerned that the Bill as drafted would promote the inappropriate and unjust use of artificially delivered nutrition and hydration. Indeed, at Second Reading she spoke at length and very compellingly about that. Doctors, she said, would be so afraid of prosecution that they might well end up practising "defensive medicine". The noble Earl, Lord Howe, referred to that in his remarks, as did the noble Lord, Lord Clement-Jones, when we discussed this earlier. I personally have said from the outset that I do not want to see good doctors being prosecuted at the behest of aggrieved relatives. I am sure that every Member of the Committee shares a dislike of vexatious litigation of any kind.

The Bill does not seek to make unlawful the withholding or withdrawal of sustenance from a patient who is in the process of dying and where the placement of feeding tubes would be regarded as unduly intrusive and inappropriate or where the risk of placing the feeding tube would be excessive. Again, it is important to set out what the Bill does not do. This is far removed from the deliberate withholding or withdrawing of sustenance with the purpose of causing the death of a patient who is not otherwise dying. The Bill would not force the provision of sustenance irrespective of predicated outcome and scientific evidence, nor would it promote the inappropriate and unjust use of TPN.

If subsection (3) helps to clarify the intention behind the Bill then I welcome it. Subsection (3)(a) offers a legitimate exception to an offence under the Bill. I hope that between now and Report stage we will be able to ensure that the wording of these amendments does not in any way dilute the protection that we are seeking to provide vulnerable patients, which is the whole point of the Bill, nor expose good doctors—my noble friend's point—to criminal prosecution.

I turn to subsection (3)(b) and (c). I do not believe that these provisions are necessary. I think that they wrongly imply—and from my noble friend's remarks, I suspect that she perhaps concedes this—that the provision of sustenance, for example, could cure strokes or other illnesses and so can be withheld or withdrawn if it is not having the desired curative effect. Rather, nutrition and hydration—as the noble Lord, Lord Carlile of Berriew, said at Second Reading—form the very basis of human life and should be given to all patients with the proviso to which I referred earlier.

I turn briefly to subsection (4). Again I think that, as drafted, the provision is too broad. I am utterly convinced of the motives of my noble friend Lady Finlay and know that she would do nothing that

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inflicts suffering or pain. We are very fortunate in this House to have someone who is on the sharp end of having to deal daily with these matters. Moreover, we all listen to her knowing of her own deep convictions and the way in which she deals clinically with patients. The mover would do better to entrench subsection (3)(a), to which I referred earlier, on the face of the Bill and to discard the possible ambiguous interpretation of subsection (4).

Subsection (5) of the amendment states:

    "The primary purpose of the withdrawing or withholding of sustenance is not to hasten or otherwise cause the death of the patient".

The noble Baroness, Lady Andrews, mentioned that point earlier. I believe that subsection (5) is probably superfluous but if it helps to assuage the concerns of doctors that they will be exposed to the risk of malicious prosecution, I am not opposed in principle to it being included on the face of the Bill. We can reflect on that between now and Report.

As the noble Lord, Lord Swinfen, said, subsection (6) of the amendment is problematic from a technical point of view. It would enable the senior doctor and the patient's best friend or next of kin to withhold or withdraw sustenance if they consider this to be in the patient's best interests. However, like subsection (2), it fails to distinguish between the patient who has mental capacity and the patient who lacks mental capacity. I hope that the noble Baroness will be able to clarify that point for us. Surely if a competent patient consents to the provision of sustenance, the views of any doctor, next of kin or best friend, whoever they are, should be wholly irrelevant. I appreciate the intention behind the amendment. I wonder whether the exception to an offence under the Bill that it seeks to provide can be found in subsection (3)(a). I know that the noble Baroness is sympathetic to that point.

Subsection (6) of the amendment would also appear to conflict with paragraph 17.4 of the BMA's guidance on withdrawing and withholding life-prolonging medical treatment. I remind the Committee of that guidance, which states:

    "Except where the patient's imminent death is inevitable, a decision to withhold or withdraw all treatment is likely to be inappropriate and potentially unlawful".

Assuming subsection (6) deals with incompetent patients, it needs to be clarified whether or not it covers incompetent patients where death is imminent or incompetent patients who are not dying. If it covers the latter then it must be amended. I do not believe that it would be right to allow the senior doctor and the patient's next of kin or best friend to deem that sustenance be withheld or withdrawn from a non-dying incompetent patient on the grounds that it is in their best interests. We need to reflect further on the implications of that.

Subsection (7) of the amendment refers to,

    "the responsibilities of the senior senior doctor",

for the purposes of subsection (6). That point was mentioned earlier by the noble Lord, Lord Swinfen. Obviously, that needs to be tidied up. I have expressed

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concern to the noble Baroness that this should not be just any doctor, and I think that she agrees. There has to be a clear chain of command. It is vital that if the responsibilities of the senior doctor are to be delegated to another medical practitioner they are delegated by the senior practitioner himself. There must be a clear chain of command. That does not exist in the amendment as it is currently drafted.

I hope that some of those points will be helpful to the Committee. Like my noble friend, I think there is a lot of common ground between the mover of the amendment and the mover of the Bill. It is a question of bringing the best interests of the patient and the best interests of the medical profession together. I hope that these two very formidable Members of your Lordships' House will be able to find a way forward between now and Report.

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