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Lord Walton of Detchant: As my noble and right reverend friend Lord Habgood has said, I had the privilege of chairing the Select Committee on medical ethics that reported to the House in 1994. Virtually all the provisions and recommendations in the report of that committee were accepted by the House.
My noble and right reverend friend is absolutely right to make it clear that we recommended that the use of advance directives should become much more widespread and valid, but that they should not be legally binding. The problem is that, since that time, they have quite frequently become binding in common law because of a number of notable cases in which judges have concluded that an advance directive signed by an individual has the force of law.
My noble and right reverend friend is right to say that our concern was principally that an individual who signed an advance directive would, as the years went by, fail to update that directive. Therefore, he might not take account of major developments in medical sciences that, in the circumstances ultimately arising, would have made that advance directive inoperative or inappropriate.
At the end of Amendment No. 16, which is tabled by the noble Lord, Lord Brennan, and my noble friend Lord Alton of Liverpool, the suggestion is,
"that the decision could not reasonably be treated as binding, having regard to all the circumstances".
Would that meet our concerns about changes in medicine, developments and practice that might make the directive no longer binding? That is a question which the Minister should answer.
There are two or three other things arising from the 1994 report of the Select Committee, which I chaired. First, the Bill enshrines the autonomy of the individual. Everyone recognises that it is entirely appropriate for any individual to refuse medical treatment having had all the circumstances and consequences explained, even if that refusal of treatment results in death. That was, and still is, accepted in law.
Secondly, in our report we recommended that there was no obligation on the healthcare team to continue with futile medical treatment that added nothing to the well-being of the person. Therefore, in relation to Amendments Nos. 97 and 99, I wonder whether it might be said that the continuation of futile treatment, such as even the giving of antibiotics towards the end of life, would be regarded as burdensome. I am somewhat concerned that the word "burdensome" tends to imply something that is disturbing or difficult to tolerate by the individual.
I am thinking of a deeply unconscious patient where, under all circumstances—for instance, an individual in a permanent vegetative state—we specify that the continuation of treatment that adds nothing to the well-being of the individual, as in the notable case of Tony Bland, need not be continued. I am concerned that that circumstance will properly be handled under this Bill. Those amendments might be open to misinterpretation in cases of that nature.
Lord Christopher: I have tried to speak three times. First, I endorse fully the comments of my noble friend Lord Brennan about the way in which the Bill has been handled thus far by our Front Bench. It is an example of how good work can be done. I thank the Minister very much.
At Second Reading, I said that there is a lack of protection beyond the considerations of life and death in the Bill. I think that that is not an accident, but I understand wholly why almost all of the debate in another place and much of our debate at Second Reading and here today has been about life and death, which is quite right.
But there is another aspect that I want to ensure is adequately dealt with in "The principles". The preamble to the Bill, if that is the correct term, states that this is a,
I repeat—"persons who lack capacity". However, under Clause 1(2) a person has to have an "established" lack of capacity. There is a considerable distinction between the two.
I have a modest file of examples of cases of financial abuse—the Master of the Court of Protection made much of them when he gave his evidence—involving persons who certainly had not had their lack of capacity established. The number of persons involved is likely to grow. Over the next 10, 20 to 25 years, there will be a generation of people dying who, for the first
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time in our history, will have significant wealth in their property. That is a major change to which we have not given enough attention in a number of ways.
I am advised that the majority of the cases that have found their way to the Court of Protection involve mainly elderly women who are either single or widowed. For a variety of reasons that Members of the Committee will be able to imagine, they are very vulnerable to some form of abuse in that regard.
I will not go into great detail of the case with which I have most experience, but it involved an elderly woman where lack of capacity was not recognised by three general practitioners—another subject that I am sure will be taken up by the department with the medical training people. Where the Bill states that capacity is to be established, I ask, by whom, when and how? Currently, as far as I can see, there is no provision for even warning signals to be given to anyone.
The Master of the Court of Protection, Denzil Lush, made some comments when he gave his evidence regarding the content of Clause 1(4), which states:
"A person is not to be treated as unable to make a decision merely because he makes an unwise decision".
If "an" is a principal word in this principle, I am happy. But what about a succession of unwise decisions, which we illustrated? For example, the elderly woman to whom I referred was reduced from being fairly wealthy to not only having no money at all, but also being £100,000 in debt.
My only practical proposal—my noble friend the Minister is aware of it—is that there should be a proper provision for those who are uneasy about what is happening in such a case to make their unease known either to the new guardianship or the new Court of Protection. I understand that that might be encouraged.
Turning now to Amendment No. 1 in the name of my noble friend Lord Brennan, does paragraph (b)(iv), which says,
apply to solicitors, accountants, brokers or anyone else in the financial services field who has a concern about what is happening in a case that they know well? In my case, I have a list, which includes three firms of solicitors, a firm of accountants and others, all of whom were uneasy, believed that what was happening was wrong—it certainly did not look right—but did not know what to do.
Those people will certainly need protection. For example, if a solicitor is to write to the Court of Protection stating, "In my opinion, this case needs some exploration", he will want to be sure that he is not going to open himself to liability under confidentiality to the client. A number of noble Lords will recall the hoo-ha from the Law Society about the proposed requirement that it inform the Treasury or the Revenue about tax avoidance arrangements concerning clients.
Paragraph (a) of Amendment No. 1 refers to "wholly irrational", which it certainly was in the case that I know about, and,
Who else might be concerned in that area in order to form an opinion? Talking about principles does not refer exclusively to medical issues, life or death. It is about the wherewithal for people to have a sensibly and honourably regulated life. Certainly, unless there are other circumstances intervening, public interest gets involved because people become the financial responsibility of the state.
Baroness Finlay of Llandaff: Many points have been made, and I do not want to take up much time repeating them. The Bill tries to encapsulate good decision-making to enhance the dignity of the individual. I feel much more comfortable with government Amendment No. 13, which changes the wording in the Bill, because I believe—I hope that every lawyer will agree—that it means that doctors cannot be asked to kill a patient. They cannot make the judgment that a person would be better off dead and go about ending that person's life. That has been my motivation and that of others who have tabled amendments.
I would like to speak briefly to Amendment No. 11 because it is about motivation. The motivation for tabling it was so that the default position would be towards life. Clinical decisions are complex and are not made at a single point in time. My worry about our discussion so far is that it sounds as though a decision is made and that is it. However, in a clinical scenario the patient is changing all the time: they unexpectedly get better or worse.
There are patients who decline all treatment, which may at first seem unwise. It might seem extremely unwise, but they could be proven right because they do remarkably well. Sadly, some patients whom we treat do remarkably badly, and I honestly believe that their lives have been foreshortened by our best efforts because they get infections and so on, although infections are not caught through bad care—it can still happen through the best of care.
We are trying to ensure that the best clinical practice is brought in through the legislation and that bad clinical practice cannot continue so that we strengthen the way in which decisions are made. However, it is worth remembering two situations. First, research was carried out on patients who had spinal injuries. Of 25 patients, 23 said that they were glad in retrospect that they were resuscitated and treated. However, I know as someone who treats medical students that if we took 25 medical students they would say, "If I got a massive spinal injury I think I might be better off dead".
We have to remember that the view of the person when they are in a situation is often different to the way they perceive it before they find themselves in that situation. Human beings have a phenomenal capacity to adapt, and I am amazed at what people adapt to. Day after day, I stand in awe of my patients, as they adapt to situations that they have said they thought would have been intolerable. That is why we need a default position towards life.
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Secondly, will the Minister clarify the emergency situation? I am particularly worried about obstetrics. What would be the position for a woman who has been adamant for a long time that she did not want a Caesarean section and has had that clearly documented, written down and discussed, in the rare event that she had a rupturing uterus and every other intervention to extract the foetus had been tried? What will be the position of the obstetrician who today would phone up the duty court at the time and obtain an instant ruling and would be able to operate and save that woman's life?
I do not know of a study that has carried out a retrospective look at all the cases. In all the anecdotal cases of which I know, once the woman has recovered after about 48 hours she is glad to be alive not dead. Her mind may have been so disturbed in the state of advanced labour, when things were going wrong, that she was unable to make a decision.
The other issue we need to remember is the way that relatives view matters. When they are sitting by the bed of someone they love, particularly in a sudden unexpected tragedy such as a road accident, their thinking can become distorted and difficult. That is another reason why, in the amendment to which I put my name, the default position towards life would seem the safest way to go.
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