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Lord Campbell of Alloway: I am obliged to the noble Lord for giving way. I have listened with great attention and wonder whether he can help. What is the reasoned approach to the distinction between what is irrational and wholly irrational?
Lord Brennan: "Irrational" may be unwise; "wholly irrational" is inconceivable in terms of giving it effect. You would not accept it in your own family or community. Why should the state accept it as a right of citizens? There is a plain difference. The word "wholly" is used clearly and has force.
I turn to Amendment No. 16. As I said, the word "not" should be deleted otherwise there is a double negative. The purpose of the amendment is to produce the following considerations. We are concerned with the implementation of advance decisions or comments made in the past to which effect may be given by a court. What attention is to be paid to the circumstances from which such comments or decisions are made? I give two examples.
I am told by a medical friend that each year over 80,000, and possibly as many as 100,000, cases of self-harm, drug overdose or attempted suicide occur in this country. The vast majority involve no intention that death should occur; they are attention-seeking calls for help. But those people are often living in a state of distress, sometimes permanently. They are just the kind of people who would make advance decisions that might be thought to reflect their desire for self-help: "Look at my advance decision". Should we look at such an advance decision from a suicidal background? Is that a proper implementation of personal autonomy or is the doctor not to be allowed to look at it?
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Next, let us suppose that the background to the decision is influenced by a carer, the family, or whoever, for financial motives, and that what was said was unknown on the face of the advance decision or on the evidence before the court but by reasonable inquiry eventually emerges. Are those factors which may involve financial motives to be ignored and the will of the patient to be given free implementation by the court regardless? I ask the question rhetorically. Are these not very serious matters for us to consider?
The last amendment, Amendment No. 19, is simple. If I am wrong about the law I am ready to be corrected. If I am right—it may be that I am not—the following situation appears to prevail under the Bill. If you are under 18 years of age the Court of Protection will determine your best interests in terms of treatment; that is, what is too burdensome, whether it is futile or whether, in the case of children, it produces a life that is completely intolerable. However, when one reaches 18, Clause 4 of the Bill has a wide-ranging basis for determining best interests that do not include considerations of what is too burdensome, futile or intolerable. If I am right, I wonder how that is to work. A person of 17 years 11 months has the benefit of a stricter regime but at 18 years one month he moves into the context of the Bill. I hope that I am wrong and that the Minister will correct me. If she is unable to do so today or at some later stage, this is a very unusual state of affairs. Rights and choice should be applicable across the board without distinction.
Members of the Committee have been very patient. I shall now finish. I am happy to conclude by welcoming government Amendment No. 13. It reflects a considered response by the Government to the great concerns expressed that proxy decision-makers and medical staff should not be involved in circumstances which give effect to a suicide. That is a welcome step forward, for which the Government are to be commended. I hope that they will pay similar, kind attention to my Amendment No. 88, which requires the same consideration to be applied to the person himself not just to a proxy decision-maker or a doctor.
I thank noble Lords for their attention. These are serious matters. The amendments should not occupy our time by being dissected legally. I have raised issues for Members of the Committee to be conscious of when we consider the many complex and important provisions of the Bill. I beg to move.
Lord Alton of Liverpool: The list of amendments before the Committee is complex and, indeed, extensive. There are 10 amendments in this group, some of which cover ground which the noble Lord, Lord Brennan, touched upon, and other issues. However, he is right that these are crucial questions that cut to the heart of the Bill.
This has to be seen not only in the context of our Second Reading debate but also in the context of events outside this Chamber. Only yesterday, for instance, on the front page of the Daily Telegraph, there was coverage of events at Groningen hospital in
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the Netherlands. Doctors there have admitted that at least 22 new born babies have been put to death since 1997 based on the doctors' own reports to public prosecutors. That study was covered in the Dutch Journal of Medicine. It is said that the true number is likely to be far higher. The author of the report, Dr Eduard Verhagen, the head of the paediatrics unit at Groningen university hospital, said that doctors put to death between 10 and 15 infants a year. The report continues:
"No action was taken over any of the deaths, although euthanasia is technically legal in Holland only for patients aged over 12.
In a comment about that article in the leader the newspaper stated:
"We should talk about the subject [of euthanasia] in Britain—and quickly, before any legislation slips through Parliament legalising euthanasia by the back door, as it nearly did when the Mental Capacity Bill was debated by Parliament in December. This week, a House of Lords committee will discuss the Bill, which now comes with a hastily drafted government amendment that is supposed to prevent the killing of patients through neglect. But, by focusing on motivation rather than actions, the amendment further confuses the issue."
Those are the issues in this group of amendments. Before turning to my amendments, perhaps I may mention the press statement today by the Archbishop of Cardiff who has had discussions with the noble and learned Lord the Lord Chancellor. Participants in the Second Reading debate will recall the discussions. The Minister has been extremely helpful in trying to meet the concerns mentioned in the article to which I have just referred. The statement welcomes government Amendment No. 13, as did the noble Lord, Lord Brennan, and says that the new amendment,
"makes explicit that the Bill does not give authority to doctors, proxies or other third parties considering a patient's best interests to make any decision motivated by a desire to kill the person. In doing so it provides a welcome and necessary safeguard but with the important caveat, however, that it does not cover advance decisions".
That remains an issue which is in contention in your Lordships' House and with representatives of many of the great faiths outside.
The second of their concerns is the issue of suicidally motivated advance directives. The statement says:
"We believe an amendment is needed to send a clear signal that the Bill does not give validity to expressly suicidal advance decisions, and have proposed an amendment that we believe would not overburden doctors in these difficult cases".
The noble Lord, Lord Brennan, referred to that argument. I believe that Amendment No. 88 should commend itself to the Committee.
I was pleased by the positive tone of the statement issued by Archbishop Smith who said:
"I very much welcome the continuing dialogue in which many of us who have been concerned to ensure this important Bill carries the necessary safeguards have had with the government. I
- hope that the government will continue to reflect on the strong case for such an amendment, and that it will make its way into the Bill".
Discussions to bring that to fruition will continue between now and Report. I hope that our discussion on these amendments will help to flesh out some of these important ethical questions.
The Bill rightly recognises in Clause 1(4) that a person is not to be treated as unable to make a decision merely because he makes an unwise decision. The issue of personal autonomy cuts to the heart of this question. However, decisions which are wholly irrational or against the public interest are a different matter. The Bill which seeks to safeguard the interest of the vulnerable, facilitate supported decision-making and provide greater reassurance to carers, should be clear about the types of decision that are invalid and inapplicable.
It may be argued that wholly irrational decisions or those against the public interest—the noble Lord described it as the common good—will almost always be invalid and inapplicable. I suspect from the discussion I was able to have with the Minister last week—I am grateful for the time she gave—that this view is reflected in her own thinking. Therefore, we should not have too far to travel to incorporate that view on to the face of the Bill. However, what about the rare situation where capacity is not in doubt? Must we as a society stand back and allow people to harm themselves and place their carers in an invidious position out of a misguided respect? Autonomous decision-making: I believe not.
Amendment No. 16 seeks to build on Amendment No. 1 and tease out what circumstances could exonerate a clinician or a carer who, although convinced of a person's capacity, remains unconvinced by the rationality or reasonableness of their decision.
Amendment No. 19 provides that where making a best interest determination on a person who has turned 18 years of age regard must be had to his principles of best interest that applied before his 18th birthday. Although the Minister will probably be able to answer fairly satisfactorily on the points that the noble Lord raised, I ask her to ensure continuity of care. For instance, someone prior to the age of 18 may have been able to access speech therapy or day-care centres. Just because he or she reaches the age of 18 that should not be withdrawn because we suddenly take a different view about his or her capacity.
Amendment No. 97 stands in the name of the noble Lord, Lord Brennan, and Amendment No. 99 in the name of my noble friend Lady Finlay of Llandaff. Both amendments are versions of new Clause 1 which was tabled in another place and seek to exclude from the Bill decisions with "the primary purpose" or "the sole purpose" of bringing about another's death. Such amendments, even though they would create no offence or civil wrong, would make it straightforwardly true that the Bill does not permit euthanasia—an objective which I believe we all share.
By conferring on proxies and on advance decisions of patients the statutory power to refuse treatment—in that sense making treatment statutorily unlawful in various
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circumstances—and by granting those proxies the right to make determinations about the patient's "best interest" by a new and highly subjective statutory approach, the Bill will have a profound and far-reaching effect on the context in which the existing law on homicide and suicide by omission will operate in practice. The weight of the legislation will favour both omitting treatment in a range of cases where hitherto it would have been omitted only if the patient refused consent, and in many cases ceasing to provide food and water in circumstances where but for the legislation such treatment and sustenance might well have been given. That being so, it seems quite unacceptable that existing legal ambiguities about omissions should be allowed to continue, let alone be extended in these ways; hence these suggested amendments.
I still have serious concerns about the provisions of the Bill regarding lasting powers of attorney. The attorney, assuming that he or she is given authority in the lasting power of attorney over life-sustaining treatment, can direct medical professionals not to treat a patient. The attorney's decision must be respected even though it is the patient not the attorney who stands to suffer from the decision. Of course, in theory medical professionals will be able to challenge the decision of an attorney that they believe to be questionable and/or contrary to the patient's best interest but how many medical professionals and NHS trusts will have the time, energy, motivation and money to ask a court to override an attorney, particularly when the attorney has statutory authority to direct medical professionals as though he or she were the patient?
I strongly welcomed Clause 58 at Second Reading. It is a declaratory provision. It is good that it is on the face of the Bill but I do not believe that it will solve the problem entirely. A doctor who withholds treatment simply because it has been forbidden by a statutory proxy's decision or by a statutorily valid and applicable advance decision will not be acting unlawfully under the rules preserved by Clause 58. Such a doctor's intent will simply be to comply with his or her legal duty and the conduct—a set of omissions—will not amount to the matter of an offence or to a civil wrong.
The noble Lord, Lord Filkin, dealt with the issue in the earlier passage of the Bill and confirmed in correspondence that,
"if a proxy wanted to refuse consent to a treatment and the doctor thought that this was with the intention of murder or manslaughter then the doctor could continue to treat".
Why not make that crystal clear in the Bill by including an amendment along the lines suggested in these amendments?
I apologise to the Committee for the length of my contribution. Of the 10 amendments, three stand in my name and I have signed many of the others. Under Clause 1 (5), Amendment No. 11, all acts done or decisions made under the Bill for or on behalf of a person who lacks capacity will be required to be done or made "in his best interests". The Bill's explanation of "best interest" in Clause 4 makes no reference to the fact that persons, even when unconscious or mistaken about their interests, have an objective interest in their
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own life, health and well-being. Instead, Clause 4(1) states that in determining what is in a person's best interest,
I appreciate that since the draft Bill was published the Government have introduced a great element of objectivity into the Bill's definition of "best interest". However, I remain perplexed as to why the Government have so far resisted this amendment which merely seeks to make it clear that when personal welfare decisions are made the patient's life and health must be considered along with—and not to trump—all the other factors set out in Clause 4. I refer the Minister to common law and the phrase "best interest" which means treatment given to save the patient's life or to improve or prevent deterioration in the patient's physical or mental health.
At present Clause 4(2) to (6) say that "in particular" there must be a consideration of a range of factors, all of which relate to predicted capacity or incapacity and participation in decision-making. They are,
his or her decision if he or she had capacity, and
The views of interested persons on,
Those matters to be considered "in particular" are still too subjective—desires, wishes, beliefs and values. Not enough emphasis is being placed on the real dignity and value of the person's existence, life, health and well-being. Disability rights groups are concerned about the Bill's definition of "best interests". I shall not read the long statement that I have from Disability Awareness in Action, but it very much supports the spirit of the amendment.
Finally, Amendment No. 197 concerns the withdrawal or withholding of treatment, the question of suicidal advance decisions and the right of conscience. The amendments must be seen alongside government Amendment No. 13. I am glad that the Government have accepted the deletion of the amendment, to which I referred at Second Reading, which had been incorporated following the intervention of the honourable Member for Knowsley North and Sefton East, George Howarth, in another place. I welcome that, but I also note that the Joint Committee on Human Rights, in its report published yesterday, said that we needed to draw the lines even more narrowly. I draw that matter to the attention of the Committee. The Joint Committee said:
"Proving the motive of a person making a best interests determination will in practice be extremely difficult, however, and we, therefore, regard the proposed amendment"—
"more as a declaratory statement about the intention behind the Bill for the avoidance of doubt, similar to clause 58, than as an additional substantive safeguard".
"A further safeguard which could be added to the Bill in the light of a judgement in Burke would be an express provision that it is only in the best interests of a patient to withhold or withdraw life-sustaining treatment if it is intolerable for them to continue to receive treatment in order to sustain life".
There was much agreement at Second Reading on the issue of burdensome treatments. We should dispose of that once and for all. I do not think that anyone in the Committee is a vitalist and says that you should continue to keep people alive beyond a point where it is natural for them to die and to impose treatments that they would not wish to receive. That is clear. The Joint Committee continued:
"This would add a very real practical safeguard, making it less likely that the withdrawal or withholding of ANH will be judged to be in the best interests of anyone who is not in the very narrow category of cases in which such withholding or withdrawal would not be in breach of Article 3 ECHR (identified in Burke as those cases where the patient is dying and has slipped into a final coma and lost all awareness of what is happening). We recommend that consideration be given to bringing forward an amendment to this effect in the Lords".
My amendment helps to do that, although I am not precious about any of the words, and I recognise that we are at the exploratory stage of our proceedings. They are probing amendments, but we must meet the point raised yesterday by the Joint Committee.
If I were to say in a written advance decision that in such and such circumstances, "My wish is to commit suicide by being taken off my drugs, and I wish to be assisted to commit suicide in that way"—the Minister and I discussed this at our meeting last week, and it would be helpful to hear about it in Committee—would the Bill give full support to that advance decision and make a doctor guilty of battery if he did not comply, because he judged that the drugs were in a patient's best interests and was unwilling to aid and abet a suicide? Admitting that would be for Parliament to give strong backing to the movement for assisted suicide, so the problem could be addressed by an amendment to Clause 25 that stated that an advance decision was not applicable,
Amendments Nos. 88 and 197 do that, as does the later amendment, which is better, tabled by the noble Lord, Lord Brennan, and makes the same points more efficiently. The sentiments of those amendments should be incorporated.
We fully respect the autonomy to refuse treatment for any reason or none, but we must preserve the rights of doctors, nurses and society to be free from the scandalous burden of openly assisting suicide. The amendment would preserve the balance and discreteness that has marked the courts' position, but which the Bill does not safeguard.
The last amendment also contains a conscience clause. For example, there was a conscience clause in the Abortion Act 1967, whatever one's position on
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that. I was concerned to meet a consultant working in a London hospital—the Minister knows of the case, because I mentioned it to her last week—who told me that, if we did not include a conscience clause and tighten up the remaining points, he would seek work in Scotland, where different laws apply and there are greater safeguards. He did not feel that his integrity and position would be safeguarded under the Bill. None of us wishes to see people forced out of the medical profession because they were required to do things that were against their conscience. So, I plead with the Government that, whatever else happens in Committee and on Report, by the end something similar to that conscience provision will be incorporated.
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