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Lord Swinfen: My Lords, I am pleased that my noble friend Lady Knight of Collingtree and the noble Baroness, Lady Finlay of Llandaff, who in Committee appeared not to be singing from the same hymn sheets, are today singing to the same tune but using different words. They were both trying to reach the same point from different directions. I am pleased that they have come together on this amendment and I support it.

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I would have thought that the point raised by the noble Baroness, Lady Andrews, on subsection (4) could have been dealt with easily at Third Reading, if that provision needs improvement. As regards subsection (2)(a), the word "or" can easily be added at Third Reading as a tidying-up measure. There is no difficulty with that; that is, if it does not already come under an Act which we have for clarifying Bills and goes in automatically—I do not know, but the Clerks will be able to advise the noble Baroness.

As to the remarks of the noble Lord, Lord Joffe, on the Bland judgment, I think I am right in saying that the courts said that that judgment should not be taken as a precedent and therefore in some respect his remarks were unnecessary. But if there should be a similar case in future—we all hope that there will not, but unfortunately these things happen—it is always open to either the family or the doctors in treating that patient to ask the court for permission to stop feeding. With those few remarks, I support the amendment.

Lord Brennan: My Lords, in speaking to Amendment No. 1, the House should commend the noble Baronesses Lady Knight of Collingtree and Lady Finlay of Llandaff, on reaching agreement on the amendment to the original Clause 1. I commend the amendment because these are extremely serious matters that we are debating. They are designed to protect patients but they should not, in a desire to protect them, cause unnecessary interference with the proper exercise of medical judgment by those caring for the patients. There is a balance to be struck. The amendment before the House rationally seeks to draw that balance in a reasonable way.

I should like to raise several points for further consideration, if not today at Third Reading. The first is that in paragraph (4) of the amendment there is an attempted definition of "capacity". It is put in the negative, but it is a definition of "capacity". At present, your Lordships face consideration of this Bill, the Bill advanced by the noble Lord, Lord Joffe—the Patient (Assisted Dying) Bill—which also involves capacity, and a Bill which is about to be introduced called the Mental Incapacity Bill.

These matters require significant intellectual rigour to be applied to them. It would be most unfortunate if, in the course of debating each of these three Bills, we approach the question as to capacity with different terminology when they all affect the same area of personal capacity and we should be looking for consistency. That is my first suggestion that the noble Baroness, Lady Knight, should consider at Third Reading; that is, what those other two Bills state and the terms of paragraph (4) of the amendment.

The second point I want to make is that in putting her name to the amendment as a Member of this House, as I understand it, the noble Baroness, Lady Finlay, is also expressing her medical opinion about what is appropriate in terms of patient protection in this particular area. The comments made by professional medical organisations to which the

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noble Lord, Lord Joffe, referred, as he pointed out, were made before these amendments. I suspect that following the amendments the objections will not be pursued, but when we consider the position of the medical profession I invite the House to exercise that intellectual rigour I mentioned a moment ago.

It would be unfortunate if, in considering this Bill, we ask the House to take into account medical opinion if it is against the Bill and yet, when the Bill of the noble Lord, Lord Joffe, comes before the House it is said, "Don't take into account medical opinion if it objects to the Bill; there are more important considerations". Putting it generously, that is intellectually unattractive. So we need to have a consistent view about the medical position.

My last point is about subsection (3). First, the Bland case did not create a generally applicable principle of law. A reading of the speeches in the House of Lords makes that abundantly clear. I must point out to the noble Lord, Lord Joffe, that what he read out was part of the speech in the Court of Appeal of Lord Justice Hoffmann, as he then was; it was not part of one of the speeches from the House of Lords.

I raise that point because the House was exceptionally careful to limit precisely the effect of its judgment by pointing out that in its view these matters required further and particular consideration by Parliament. This is an occasion for such consideration.

As I read subsection (3)(a), it appears to refer to a class of patient who is not dying, but on the terms used would include a patient in a persistent vegetative state. If not, I should like clarification at Third Reading as to which class of patient that is intended to refer. At the moment it appears to refer to any condition and it would not matter even if the patient was only mildly ill. It would seem extraordinary if in those circumstances a patient could say, "Don't feed me. I intend to die even though I have only a minor condition". I am being strictly legal about this issue, but it is an important matter. In contrast, subsection (3)(b) appears to refer to the dying patient and requires no more than common sense to interpret what it means. So we need clarification with regard to those matters.

I close my remarks on the amendment by repeating what I said at the beginning: it is to be welcomed and I would commend to the House—if your Lordships can forgive the third repetition of it—on this occasion, and when we come to the other two matters that I have mentioned, the need to use throughout objective argument and intellectual rigour.

4 p.m.

Baroness Knight of Collingtree: My Lords, first, I make clear to your Lordships that I have received notification from the Table that it will be possible to deal with the important point raised by the noble Baroness, Lady Finlay, that the word "or" can be treated as a printing error. I am grateful for that advice.

There is no need for me to comment on what the noble Lord, Lord Joffe, said. In some ways I find it difficult to understand where the noble Lord is coming from, because, as your Lordships are well aware, he is

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very much in favour of people being allowed to be "done to death" when they wish that to happen. The Bill is not about that at all; it is about protecting people from being "done to death" when they do not wish to die. Having said those words, I shall leave the matter.

The noble Lord, Lord Brennan, made an important point on the question of capacity. That could not be considered briefly and without careful thought. I am quite sure that colleagues who support this Bill will take that on board, as we all will, and consider most carefully whether changes in the wording are needed or advisable.

With regard to medical opinion and the need for the House to have a consistent view on it, it has often struck me with astonishment that it is extremely difficult to get a consistent view from the BMA. That is natural because doctors are personalities, as are we all. Conflicting views have frequently been expressed to me on medical issues that have come before not only this House but my former place of work, the other place. One doctor will say one thing and another will give quite the reverse as his opinion. So it is sometimes difficult to discern what is the majority view of the BMA. We all have a duty to listen to experts in the fields in which we deal, carefully weigh up what is said and then make up our own minds on the matter. Any other course of action will be problematic.

On the question of what the wording of subsection (3)(a) means, again, I think it better not to detain the House at this time but to assure the noble Lord, Lord Brennan, that that will be considered. With those words, I commend the amendment to the House.

On Question, amendment agreed to.

Baroness Finlay of Llandaff moved Amendment No. 2:

    After Clause 1, insert the following new clause—

There shall be a general duty on all those providing nursing care for a patient to offer appropriate sustenance to the patient."

The noble Baroness said: My Lords, the amendment addresses the duty of care. Nursing care is not confined to those with a nursing qualification; it consists of the care of those patients who are vulnerable and unable to provide their own nutrition because of debility. That does not mean that sustenance must be offered by registered nurses only. Indeed, in the modern NHS, the role is often fulfilled by care assistants and other non-professional carers.

Neither does it exclude other professions, such as dieticians, pharmacists and others, from an obligation to support that caring process. It is negligent on behalf of anyone entrusted to provide care to fail to discharge his duty to offer the competent—and, indeed, the incompetent—person sustenance. However, in previous debates, there was great concern that patients are at present frightened of going into hospital, and the amendment should allay those fears.

It is negligent to fail to provide such basic care to a person at home—again, the amendment restates that. It does not require someone who helps a debilitated person to shop then also to prepare the meals, but it

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ensures that vulnerable people will be offered sustenance if they are unable to prepare it for themselves. It does not remove the duty of best interest in decision-making for the incompetent patient. I beg to move.

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