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Baroness Knight of Collingtree: The difficulty is that we need to be very clear. If a doctor, in conscience, feels that he cannot carry out a certain operation or technique on a patient, of course the patient must be allowed to get his treatment elsewhere. I think there would be no disagreement about that in the mind of any of us.
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The difficulty I had when I first read the amendment was that I thought that the doctor who had a conscience about carrying out that procedure was therefore duty bound to refer the patient to another doctor who, he knew, would carry out the procedure. My mind goes back to the examples that arose when we discussed the Abortion Bill. The conscience issue was huge there, and it has grown bigger, in a way, over the years, because so many doctors have been sacked and so many nurses have lost their job because they could not, according to their conscience, have a part in it. Everyone understands that, but for them then to be told that they must find a doctor or a nurse who would carry out that procedure is where the difficulty arises. If someone else is making that decision, fine; if the doctor is forced to make it, it puts him in a very difficult position.

Baroness Ashton of Upholland: The noble Baroness would not expect me to comment on the assertion that people have been sacked. That is a matter that I will pass on to my noble friend Lord Warner. The noble Baroness makes an important point, which goes back to what the noble Lord, Lord Alton, also said.

In reality, the position in the medical profession is that a doctor who has strong views and beliefs would make those known in any event to the management of the NHS trust, and procedures would follow that would enable somebody to be found for the patient without, as the noble Baroness, Lady Knight, said, the onus being on somebody to go against his conscience, which is, I think, the point that both noble Lords were making.

I will talk to my officials and check how the GMC/BMA guidance works. I do not think that either noble Lord is saying to me—I would not agree with them—that the patient has to accept what that particular doctor says, because he has made a decision none the less, rightly or wrongly in the view of doctors. Noble Lords are asking that we are clear that doctors who believe strongly should not be asked to seek out a colleague who would do something contrary, but rather that the process of management in the NHS trust should come into play. If that is what noble Lords are searching for, I am happy to make sure that it is the case.

Baroness Warnock: It seems to me that there is a great deal of point in this amendment, which places this proviso on the face of the Bill. Although I fully understand what the Minister said about the present situation, it is sometimes difficult to implement a change of care of the patient at the last minute unless it is absolutely clear to everybody, and is known to everybody, that this is what is required.

I have had many letters about this. One of them told the story of a woman who had made a very specific advance directive, which was that if she should contract pneumonia she should not be given antibiotics. She went into a nursing home and became mentally incapable, but she had made the advance decision. The person who ran the nursing home rang her daughter to say that antibiotics were to be started
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that evening. The nurse in charge had no conscientious objection, although the doctor did. It was very difficult to persuade the nurse, who felt that she had to carry out her instructions. In the end, the woman was not given antibiotics but it was very difficult. Having this proviso on the face of the Bill would make the situation clearer. I therefore support the amendment, or something like it.

Lord Alton of Liverpool: I am grateful for the forbearance of the Committee and will be brief. The Minister has been extremely helpful in what she has said this afternoon. If we can find some way of putting that sentiment in words, as my noble friend suggested, it would go a long way to assist the patient and the doctor. Everyone would benefit.

As the Minister deliberates further on the spirit of the noble Earl's amendment, I refer her to the decision of the Joint Committee on Human Rights on the conscience clause in the Assisted Dying for the Terminally Ill Bill promoted by the noble Lord, Lord Joffe. The Joint Committee found it to be contrary to the European Convention on Human Rights under Article 9(1). It said:

If that point could be incorporated with what the noble Earl is seeking, I think we could probably find consensus on this.

Lord Winston: I shall chip in briefly. Beauchamp and, more recently, Raanan Gillon—who I think published in the British Medical Journal in 1997—have written on the four principles of medical ethics. The first principle is respect for the autonomy of the patient. That is not the only issue here, by any means, but it seems to me that it is already covered in medical practice.

While the autonomy of the patient in front of me as a doctor is crucial, there is also occasionally the question of my autonomy when there is an issue of conscience. For example, if a patient comes to me and requests a termination of pregnancy and I feel that, in conscience, I should not do it, I still have a duty of care to that patient. I already fulfil that duty by saying that there may be other medical practitioners who will be able to help her. My duty does not end with my refusal. That is already accepted in medical practice and I doubt whether an extra amendment is needed to enforce that principle.

Earl Howe: I am very grateful to all noble Lords who have contributed to this short debate and to the Minister for her reply. I found it encouraging as the inclusion of a suitable provision in the code of practice is a very important building block in the wall. I say to the noble Lord, Lord Christopher, that the word "person" appears in the amendment because I had in mind a case not unlike that mentioned by the noble
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Baroness, Lady Warnock, where it was a nurse who had a specific conscientious objection. It is not always a doctor in these situations.

As I mentioned, I also had in mind the Abortion Act, which has a provision more or less along these lines within the statute. Therefore, I felt that it was not inappropriate to have a similar provision in this context. The Minister may be able to contradict me, but it seems to me that there is a difference between what we are looking at here and the Abortion Act.

What we are looking at here is potentially a legally binding advance decision on the part of the patient. One might find that a doctor did not feel able to conform to that decision on conscience grounds. If he then elected to opt out using the conscience clause, he should have the certainty that he is not legally liable. That is a different situation from the Abortion Act where there is no question of a legally binding decision, merely a clinical decision that the doctor does not feel able to go along with. But there is a question of legal liability here. I would be very grateful if the Minister could look into that point.

I shall reflect on all the points made, particularly the points made by the noble Lord, Lord Alton, and the noble Lord, Lord Winston, because I understand their concerns. No doubt this is a matter that we shall revisit at a later stage of the Bill.

Lord Campbell of Alloway: Before the noble Earl sits down, I shall ask a very simple question. I agree with him and I have listened to this debate and have had masses of correspondence. Although I agree that one must not confuse this situation with the abortion situation, does my noble friend agree that it is extremely difficult to draft an appropriate control of a conscience clause?

Earl Howe: I have no difficulty in agreeing with my noble friend. If he is saying to me that my amendment is far from perfect, I would be the first to agree with him. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 91 not moved.]

Clause 26 agreed to.

Baroness Knight of Collingtree moved Amendment No. 92:

Notwithstanding sections 24 to 26, it is unlawful for a person responsible for the care or treatment of P at any time to withhold water or food or other sustenance, however administered, from P."

The noble Baroness said: Those noble Lords who recall my attempts to bring in a Patients Protection Bill will not be surprised to see this amendment in the Marshalled List. The practice of failing to feed sick people in hospitals or deliberately placing food out of their reach has been well documented. There have been reports and articles in the press and there have been two television programmes showing it going on. Grieving relatives have very frequently spoken to me
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and to others about it. There is widespread condemnation of such acts and when I introduced my Bill I received support for it from every part of the House.

At that time, the Government prevented my Bill becoming law, but they gave me assurances that the matter would be put right in the Bill that is now before us. I think that that was the firm intention of the noble Lord, Lord Filkin, when he spoke to me about it and I think it is the intention of the noble Baroness, Lady Ashton, whose kind and thoughtful words to me at the end of Thursday's debate I much appreciated.

Indeed, the Government have stressed that the general purpose of the Bill is to give protection to sick and helpless people, not just to their carers. But having read the Bill over and over, I cannot rid myself of the unhappy conclusion that patients in hospital will still die from deliberate starvation and/or from lack of liquids. The amendments we have had do not forbid the withholding of food and fluids, only that when they are withheld doctors must not intend to kill the patient. But what else are they going to do? There is not a human being in all the world who can continue to live without food and fluid. It is a bit like saying that you can hold a pillow over someone's mouth and nose, or hold someone's head under water or push a person off a tall building, provided you do not mean to kill him or her. But what else are you going to do?

In those three examples, I suppose you could say in the first that you merely meant to show him the difference between duck and goose feather filling; in the second that you were trying to disentangle his feet from the weeds and that is why you were holding his head under water; or, if you pushed a person off a building, you might say, "Well, they told me they could fly, so I was only trying to help". Surely, no one on the hospital staff would ever admit—would they?—that he or she was deliberately trying to kill somebody by withholding food and fluids? I do not understand how that could be.

I would feel much happier if the provision was not just left to the words in the Bill, but that the amendment at least added something to the effect of, "if the alternative to withholding sustenance were also to be life-threatening and a choice had to be made between these two alternatives as to which would give the patient a better chance of life". Such words would certainly ease my mind; but they are not there.

Anyone deprived of liquid will die within one to two weeks. There is no doubt about that and I do not think that there will be any argument from any side of the Committee. It is true that over-hydration would be dangerous to people with, say, lung congestion due to heart problems, and I know that there can be technical difficulties with an intravenous or a subcutaneous drip. But I have been told on very high authority indeed that hydration can always be supplied by one means or another, and that only in extremely rare cases is the placing of a peg not feasible.
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Surely the clinical and ethical rule must be to supply hydration to patients and surely patients should always be made as comfortable as possible. The Bill does not even say that, nor do the amendments enforce it. There have been cases of patients suffering agonies. One lady told me of her mother begging for some moistening of her mouth. When she saw her mother's mouth her teeth were stuck to the inside of the gum because her mouth was so dry. That poor woman had suffered grievously.

In another case a man was denied liquid. After he died his tongue was found rolled right back down his throat through lack of simple moisturising. Things like that surely should never be allowed.

Death by starvation, as distinct from death from lack of fluid, I understand takes weeks or months and involves acute discomfort. We all know that medical staff have, quite intentionally, caused that suffering to patients. They must answer why they have done so. My problem is that I cannot see that either the Bill or the amendments to it will end the practice.

It is important to recall that the practice came into being through a relatively recent decision of the medical profession that giving the patient food and liquid should henceforward be classed as "medical treatment". Though no law has ever been passed permitting them to stop feeding patients, doctors are of course allowed to stop giving medical treatment.

When Members of the Committee go out to dinner, do they class that as receiving medical attention? Does a mother give her baby medical attention when she feeds it? Does our excellent Refreshment Department in your Lordships' House dispense medical treatment at the Long Table, in the Barry Room or in the Bishops' Bar?

This cruel recategorisation came about when a majority decision of the Law Lords—it was only three out of five; not many Law Lords decided the matter—in the Bland case decided that this young man, who had been in a coma for four years and kept alive only because he was being fed artificially through a tube, should have his tube withdrawn. I am not in anyway speaking against that decision. I merely say to your Lordships that the situation we now have came about because of the decision in that case that it would be lawful to withdraw the tube. But it was made perfectly clear by one of those Law Lords that the judgment in that case should not be taken as a go ahead for all patients in a coma to have their feeding tubes turned off or pulled out. It was an individual decision for an individual case—nothing more.

Those Law Lords never meant to hand down a judgment that henceforward sick people in hospital should be denied food and liquid; yet that is what has happened. Giving food and liquid is classed as "medical treatment", and—I repeat—it is quite legal for doctors to stop medical treatment. The government amendments do not alter that; my amendment does. If we want to stop what has been going on and to end one way in which patients have suffered grievously, we must surely accept this amendment.
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What if, as in the Bland case, sustenance can be given only through tube or peg—and one can certainly understand why that might be classed as a medical treatment—and the patient does not want that? He would of course have the right to say that he does not want it. Then the doctors could stop or, I hope, would have to explain to the patient what such a withdrawal would mean. If the patient could not speak but, with body language, flinching, crying or pulling out the tube or peg, indicated that he did not want that to go on, surely a decision would have to be made with staff, family, carers or others involved. But that is not what has been happening.

I listed one case involving a Member of the other place. He found out what had been happening by accident. After visiting his wife for about three days he asked when she was being fed. They said: "Oh, we are not feeding her". He had no idea. He was not consulted at all. These are the things that led to my Bill and to my considerable concern about the matter.

I agree completely with that rhyme about euthanasia:

But nothing in my amendment would force a patient to undergo distressing or painful procedures against his will. I seek only to stop the present post-Bland situation where untold numbers have died in acute pain and discomfort because, quite wrongly, administering the essential for life has been classed as medical treatment instead of what it really is: the means for life itself.

I must remind the Committee that the present situation is warmly supported by those who lobby for euthanasia to become legal. In 1984 a leader of that particular lobby said:

What a cruel statement that is. There are thousands of people outside this House who pray for this new clause to become law. In seeking to insert it in the Bill, I seek to end this wicked and inhumane practice which has gone on for far too long.

While I am on my feet, I should mention Amendment No. 198, which is also mine. I was concerned about that amendment, because it seems to provide exactly what I do not want and was the subject of considerable discussion between me and our helpful experts upstairs. I shall not move it, but it does flag up how the Bill has become extremely complicated and difficult to understand. In no way would I want a patient to be denied food and liquid just because it was coming to him through a tube or a peg. With those few words, I beg to move Amendment No. 92.

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