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The Lord Bishop of Oxford: I would like some clarification on the Government's Amendment No. 13; in particular, what is meant by the person making the determination not being motivated,
Can we have an example of the evidence that might count as substantiating that charge, if it was brought, or that might show it to be unfounded? I am not a lawyer and therefore I do not know how "motivated" might be interpreted in legal terms, but from the standpoint of Christian moral theology—the great body of moral theology shared by the Roman Catholic Church and the Anglican Church—I would want to make a distinction between "motive", "intention", and, "unintended but foreseen consequences".
If we take the withdrawal of artificial hydration and nutrition in the case of a patient experiencing burdensome treatment, we can foresee that such a withdrawal will lead to their death. But the intention, understood as the main thrust of the action, is simply to withdraw burdensome treatment that has proved futile. That is a difficult enough distinction to make, between what is directly intended and what is unintended but foreseen: but when we bring in motive, which is a concept that goes on entirely in the mind, it will be very difficult for the courts to adjudicate on situations where a case might be brought.
I am particularly concerned about doctors who make a proper professional judgment about the withdrawal of artificial hydration and nutrition in the
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case of a patient who is experiencing burdensome treatment that is futile. I want to be sure that, if such doctors were brought to court, they would have a sure defence and that they could not be captured by the clause.
Lord Mayhew of Twysden: I would like to deal with the amendments in the name of the noble Lord, Lord Brennan. The concept of irrationality is an unsafe criterion for the jurisdiction with which the clause deals. With respect, the noble Lord, Lord Goodhart, was right when he put to the noble Lord, Lord Brennan, the illustration of the Jehovah's Witness whose decision not to take a blood transfusion would be caught by his amendment.
The principle embraced in Clause 1(2) is admirable:
In the Explanatory Notes, we read that it is the Government's intention and the Bill's effect that someone should be able to make an irrational decision if he wants to. I stand by that, but it is unsafe to give that discretion to anyone, whether it is the doctor in charge of the treatment or, as Amendment No. 1 states, "any other decision maker"—whoever that might be.
It is a heavy, highly invasive and unsafe responsibility because we are not able to pry into the mind of the decision-maker at the time when he took the decision or indeed at any other time. We cannot determine whether there was a reason that seemed to him to be a good or sufficient reason, or whether it was simply a capricious twitch of his mind. We are not able to do that. I believe, therefore, that to import into the Bill—by way of pulling back from the principle that I have already read—the concept of irrationality is very dangerous. The danger is that an objective principle will be applied to what is essentially a subjective, individual and personal decision.
As to the point made by the noble Lord, Lord Goodhart, if a decision derives partly from something that is perhaps irrational and partly from something of which that cannot be said, it cannot be said to be an irrational decision. The noble Lord, Lord Brennan, said "That is why I have used the word 'wholly'"—"wholly irrational"—but something cannot be described as irrational if it is comprised in part of a sound, proper or valid reason. You do not add anything by importing the word "wholly". Something is either irrational or it is not irrational; calling it "wholly" irrational adds nothing. Therefore, I am afraid, the Jehovah's Witness would be caught.
Lord Turnberg: I should like to comment briefly on Amendment No. 1, which stands in the name of my noble friend Lord Brennan and which deals with the principles of the Bill. It is here described what is meant by a person lacking capacity and points out that a person who makes a wholly irrational decision would not be considered by the Act.
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People who have capacity, I am afraid, often make wholly irrational decisions. When they conflict with society, we have a variety of laws to deal with them—to a variable extent, I have to say, but they are there. A circumstance in which the amendment might become relevant is if a wholly irrational advance directive is made. As and when the person who made the irrational decision—a person who was originally not lacking in capacity—comes to lack capacity, there is an issue whether the decision was wholly irrational at the time.
I am all in favour of the idea of principled autonomy as against absolute personal autonomy, but I foresee problems with the amendment. I agree entirely with the noble and learned Lord, Lord Mayhew, about the judgment that has to be made about "wholly irrational". It is to be decided by the medical practitioner responsible for the treatment or any other decision-maker, including the court. That of course puts an enormous burden on those people and becomes problematic immediately because at least some of them will judge something as "wholly irrational" where others would not.
There are then problems about whether one should go against an advance directive which suggests that the person making it wishes to not have his life continued by burdensome treatments at the end of his life. Would that be considered wholly irrational by some and not by others?
The whole area is far too difficult to put in the words of the amendment. I am much more in favour of government Amendment No. 13.
Baroness Carnegy of Lour: I did not take part in the Second Reading debate but I have listened to the discussion today with enormous interest. I have been very impressed by the quality of thinking behind what all noble Lords have said.
I should like to say something very simple. I am not a professional in any of the fields that have been mentioned—indeed, I am not a professional at all—but, like so many noble Lords, I have had experience of being in the situation we are talking about with a member of my own family and I cannot help being somewhat influenced by that.
I very much agreed with the noble and right reverend Lord, Lord Habgood, when he said, after a period of debate, that we seem to be becoming mired in complexity; that the whole discussion was becoming very complex and was apparently insoluble. We have to be careful about that. I rather longed for the day when we might have gone back to an advance directive not being legally enforceable because that would solve many problems, but I suspect that we are past that stage.
The right reverend Prelate the Bishop of St Albans said what I would like to say, which is that Amendment No. 1 seems to, I think he said, "skew" the effect of the Bill too much from where it is after many years of public discussion and contemplation
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and of trying to find a way of getting close to the centre of the argument where consensus on a legal framework might be found.
I feel that Amendment No. 1 cannot be accepted. I look forward particularly to hearing what the Minister has to say about Amendment No. 13 in the light of the important questions asked by the right reverend Prelate the Bishop of Oxford.
Lord St John of Fawsley: I intervene briefly to support what the right reverend Prelate the Bishop of Oxford said. What he said in a few well chosen words goes right to the heart of the problem raised by the Bill. The government amendment introducing into the Bill the question of someone's motive is not a protection to anyone. You cannot establish at law a motive—it cannot be done—and there is a basic confusion behind the government amendment, and those who have argued for it, between motive and intention.
The intention of an act can be concluded objectively by looking at the act; a motive cannot. You may have any number of motives, but you can never prove what a motive is. I shall not use the stronger word, but it is a delusion to think that this is an effective protection of any of the purposes of the Bill. With all respect to the right reverend Prelate the Bishop of Oxford, the distinction between motive and intention was not first made by him; it was first made by Bentham some years ago.
I ask the Minister to address this problem fully and carefully when she comes to speak. If she cannot satisfy the Committee on this point, one can only conclude that the government amendment is wholly ineffective, is nugatory and will not bring about any of its promised consequences.
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