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Lord Alton of Liverpool: It is an important point. The Minister was good enough to organise a meeting last week that a number of noble Lords were able to attend, addressed by Dr Michael Wilks, the chairman of the BMA's ethical committee. During that discussion upstairs, he said that doctors must act free from pressure where advance refusals are involved. Given the concern of many people in the profession that they might be expected to do things against their will, will she give further thought to writing a conscience clause into the Bill, rather than leaving the status quo?
Will the Minister return to the point raised by the noble Lord, Lord Carter, about the Suicide Act 1961? Parts I and II of that Act deal with anyone who aids and abets a suicide, and Part II is on the giving of counsel for the procuring of a suicide. She said that we must be careful not to disturb other parts of the criminal law. Given that that Act places a criminal liability for complicity in another's suicide on those who may have been involved, how will such provisions apply in the
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context of the Bill? Will she consideragain, as a declaratory provisionwriting it into the Bill that nothing in it disturbs the 1961 Act?
Baroness Ashton of Upholland: I was going to address that point. I will consider what the noble Lord, Lord Alton, said, but he will appreciate that we have consulted the organisations that represent doctors in our discussions about whether there is a need to do further work around the conscientious objection clause. We will continue to consult them; they take responsibility on the issue. Thus far, they are very clear that the conscientious objection clauses work extremely well for clinicians and physicians. If he thinks that that is not right, we can discuss it separately, but that is their view, and they think that it will be covered in the Bill. I do not have any resistance to the issue, but the best way forward appears to be to leave matters as they are, because they work well. I am always reluctant to add to a Bill something that then needs to be interpreted if we have good practice that works extremely well.
The noble Lord reminded me of what my noble friend Lord Carter said about the 1961 Act. I shall cite the noble and learned Lord, Lord Goff, in the case of Mr Tony Bland, which I hope will add some light to the situation and at least give the Committee something to think about. I shall not quote precisely, I hasten to add, but am speaking from the officials' notes given to me. When a person with capacity refuses treatment, the law does not consider him to be committing suicide. His motive is irrelevant. He is merely exercising his right to refuse medical intervention. Therefore, it follows that a doctor does not aid or abet his suicide by respecting his wishes and withholding treatment. Aiding or abetting involves some encouragement or assistance, with the intention of furthering the crime or, in this case, the suicide. I hope that that helps my noble friend.
Baroness Ashton of Upholland: If an advance decision read, "I wish to kill myself", that is not an advance decision. An advance decision is a refusal of certain treatment. It has to be treatment-specific and circumstance-specific, so it would have to say, "I do not wish to have antibiotics if I am in the final stages of terminal cancer", and so on. The example that we have been using that gives greater clarity is blood transfusions; you might state that you did not wish to have them. You cannot say "I wish to die" or "I wish to kill myself"; that is not an advance decision, and a clinician would not act on it in that way. I hope that the combination of those two pieces of information goes some way to clarifying the issue.
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I hope that I have dealt with quite a few of the points raised, but let me try to clear up two or three further ones before Members of the Committee leap up and say, "You haven't done mine". The noble Lord, Lord Patten, has a look on his face that suggests that he might do that.
The noble Baroness, Lady Finlay, talked about emergency situations in obstetrics and women refusing caesarean sections. There would be no change in the law. The courts would continue, as they do now, to make a ruling in the woman's best interests if she lacked capacity. If she has made an advance decision, it will be clearer and safer under the Bill, as the decision will not apply unless the strict formalities in the Bill have been used. That makes the position safer than it is now. We expect to continue to deal with emergency applications as necessary. The noble Baroness will know better than I do that hearings can be by phone and in the middle of the night if necessary; that practice will continue.
The noble Lord, Lord Patten, talked about the duty of care and there being no legal remedy if there is an attorney. An attorney has a duty of care to the patientto Pin the well established law of agency, which will now be a statutory duty to act in P's best interests. If treatment is withheld in response to an attorney's decision, the attorney may be liable, even in gross negligence manslaughter. The doctor still retains the duty of care to P; that is not changed by the attorney in any sense. That is how we have sought to be clear about what an attorney may or may not do. That goes back to the clinician and the duty of care, and the "best interests" objective test.
The wishes of consultees also have no part to play in Clause 4. It is their views on P's best interests that are to be considered. As I said, "best interests" means what is best for P. It is not right to suggest that that excludes the promotion or improvement of health, because it must include that. I have already talked about whether the patient's life is worth while. The point is not the patient's life, but the treatment being in the best interests of the patient. That is another reason why we resist Amendment No. 11, because it would refocus us on the value of the person's life, rather than looking with greater clarity at the treatment.
The letter from my noble friend Lord Filkin about a doctor who thinks that an attorney is acting in a way that could be murder or manslaughter has been quoted. That takes us to the heart of the matter. I agree with what he said. It is also why doctors seek rulings from the court, which is important in ensuring that a doctor can continue
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to treat a patient while seeking the advice of the court if he has a concern. The ability to treat will be enshrined in this statute, which is important.
The noble Lord, Lord Walton, raised the changes in medicine in relation to advance decision. It is already clear in Clause 25(4)(c) that, where circumstances have changedthat includes where changes in medical practice or medicine have changedthere is no question but that the clinician can say, "The circumstances that prevailed when the advance decision was written no longer apply. We have a new drug. That treatment is not applicable". We shall come on to other examples when we deal with that provision, and I hope that they will make it clearer.
I have addressed as many of the issues as I can think of, and no one is leaping up to tell me that I have not. My final comment is on Amendment No. 18, which exists because an error has crept in. The word "his" should not be there. The reason I want to take it out is that in the case of a pregnant woman we want to ensure that the life of the baby, not only the life of the mother, must be considered. I have no doubt that that change will be welcomed by all Members of the Committee, but I wish to explain that it is purely a drafting error that has crept in. If left in, it means that the life of a baby would not be considered and I am sure that no noble Lord would want us to be in that position.
This Bill celebrates life and, as the noble Baroness, Lady Barker, said, is about living and how we live. That is what we seek with this Bill. It is about what is in people's objective, best interests, not about disregard for their lives. However, I respect the fears and concerns raised and always want to respond positively. I think that we are all geared to getting the Bill through in the best possible order. It is in that spirit that I shall take away and read through the points raised and promise to answer any questions that I have failed to answer at the Dispatch Box today, so that noble Lords can respond. I shall move the government amendments recognising that noble Lords may want to return to them at Report. In that spirit, I hope that the noble Lord will feel able to withdraw the amendment.
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