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Lord St John of Fawsley: I am most grateful to the noble Baroness for giving way. I regard that as heaping a coal of fire on my head, as I was a little brusque in my disappointment that I was no longer enjoying the favour of her countenance. Could she go a little further today and say that she will reconsider the question of motive and intention? It is of crucial importance that we get the right wording. "Intention", "motive" and "purpose" mean different things. I have the greatest respect for the most reverend Primate the Archbishop of Cardiff but, as far as I know, the Ordinary of Cardiff, though of great distinction, is not an infallible authority on theology, the law, or anything else for that matter.
It would be very helpful if the Minister would consider the question again. I am sure that she is sincere in trying to assist us all, and I would be grateful if I could have an encouraging reply to my modest suggestion.
Baroness Ashton of Upholland: As I have already indicated to the noble Lord, Lord St John of Fawsley, I intend to consider everything that has been said to me today. I fully appreciate that the noble Lord is looking at the issues of intent, purpose and motive. He will know far better than I that "intention" and "purpose" are used interchangeably in the courts; both cover the mental element of a crime, if I can describe it as such. They both cover the foresight of inevitable consequences. Motive, as the noble Earl, Lord Howe, said, is why people commit crimes—which is a different thing indeed. But we refer not to "motive" in Amendment No. 13 but to being "motivated". That is quite important, because we are considering best interests—
The Earl of Onslow: I do not understand the difference between having a motive and being "motivated by". Am I just very stupid?
Baroness Ashton of Upholland: I could never conceive of the noble Earl as being stupid at all. But if Members of the Committee look where we have positioned Amendment No. 13—in the best interests clause—they will see that what we are saying is that, when making such determinations, the person should not be motivated or driven. There are other words that we could probably look for on that basis. I am trying to distinguish between that and a motive in law for what one is doing.
I recognise that these are extremely difficult concepts. They are for me, and I know that they are for some other noble Lords, because I can see their faces—or countenances—and they look slightly confused. But we have spent a great deal of time considering the question. That is why some of the deliberations with the most reverend Primate the Archbishop of Cardiff and others have taken such a long time. As the
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Committee clearly appreciates, which is extremely helpful for me, words such as "purpose" have a very specific meaning in English law. Given the way in which clinicians operate, one could find oneself accidentally preventing them from doing their job effectively because of the way in which the words are interpreted in law and are used by them.
I feel that I am straying into the subject matter of about four different groups of amendments, but none the less I shall continue. On considering when someone is doing something with purpose, one almost strays into the work that was done around the Bland judgment about what clinicians were doing. When clinicians act in the best interests of a patient with the treatment they give, they may give treatments that also have the effect of shortening life. The obvious examples could be the risks associated with chemotherapy and other such treatments. We have been very careful in this Bill to ensure that we have not put our clinicians in danger of being unable to carry out good clinical practice.
The Committee has replicated exactly some of the discussions that we have had about what words one can use that express the desire to ensure that the provision is not about allowing people to kill people—because, as one Member of the Committee said, they want to free up the bed. We want it recognised that it is not in best interests that one should operate in that way, without seeking to change the law. That is why the amendment is framed as it is. What we have been discussing with the most reverend Primate the Archbishop of Cardiff—and it has been very helpful that noble Lords and Members of another place have participated in that discussion—is the form of words that enables us to be absolutely crystal clear about best interests and what we are seeking to do.
The other example is in Clause 58, which says that nothing about the Bill alters the law on euthanasia. Of course it does not; but saying that has helped to impress what the Bill seeks to do on those who take an active interest, and has given greater clarity to that. That is what we are about in the work that we are doing on the Bill at this stage: we are ensuring that we have clarified the matter as far as possible, to leave no one in any doubt about where we stand on these issues.
Lord Alton of Liverpool: On the point of government Amendment No. 13, I believe that the Committee is grateful to the Minister for the amount of intellectual energy that she has put into trying to help us to resolve the issue. But she will have heard the anxiety expressed from all sides of your Lordships' House during this Committee stage about the distinction between the word that the Government have chosen to use—"motive"—and the words used by the noble Lord, Lord St John of Fawsley, and the right reverend Prelate the Bishop of Oxford, such as "purpose" or "intent". Would she accept that the discussion should continue at Report stage and say that she would not rule out revising the choice of word for one of those preferred options that have been mentioned by so many Members of the Committee?
Lord Walton of Detchant: Forgive me for speaking again, but may I say how much I agree with what the
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noble Lord, Lord Alton, has just said? In my brief comments earlier about the report of the Select Committee on Medical Ethics which I chaired, I should have mentioned that we went into considerable detail about the distinction between "intention" and "motive", agreeing with what has been said on the other side of the House. If the amendment were to be changed to say something like,
I believe that it would have the same meaning and would be helpful.
Baroness Ashton of Upholland: I assure the Committee that if there were a simple way through this, I would have taken it a very long time ago. The difficulty which the noble Lord, Lord Walton, has in a sense walked into is precisely the difficulty of what English law means. The noble Lord will know very well—and I apologise if I seem to be teaching him to suck eggs—that when choosing a particular form of treatment the clinician knows the consequences involved, which may have what is known in clinical circles as "double effect". That means that a treatment may have the purpose of helping to support the individual, but may also have implications in shortening life by a few hours, and so on.
We have sought to be absolutely crystal clear that we do not want to interfere with the way the law is at the moment. I have sought the best legal advice on this and discussed the matter with clinicians. I will of course continue to consider the issues, but I would not want to mislead the Committee, because what I am not going to do is to overturn the legal position that serves us so well. I am clear about what we were asked to do, which was to consider a clarification around "best interests". That is what we have done, and that is why the most reverend Primate the Archbishop of Cardiff has supported the amendment and why I hope that it will find favour with the Committee.
Baroness Warnock: I am sorry not to have intervened before, but I am in the process of losing my voice. One further difficulty that I find about "motivation", apart from the obvious legal distinction between "motive" and "intent", is that overall the motivation of the clinician who seeks the best interests of the patient, with all the help that he can get, is the motivation of compassion. That point has been made frequently, and I entirely agree with it. That is the clinician's motive; and to say that he is not,
seems to me all right, as long as it is not taken in the ordinary legal sense of "motive". But the clinician has a motive to bring about a patient's death if that is what the patient has perhaps originally put in the will—that in these circumstances, this is when the patient would like to die. But also the motivation is a desire to relieve the patient of extra suffering that would be imposed by futile extra treatment. That is another reason why I feel dubious about "motivation" in this context.
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