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Lord Alton of Liverpool: When the noble Baroness, Lady Knight, introduced her Patients' Protection Bill to your Lordships' House, I strongly supported what she sought to do. She has rendered the Committee a
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service today by tabling Amendment No. 92 for our consideration. I certainly support the spirit of her remarks. My amendments, Amendments Nos. 98 and 199, are grouped. Although they do not depart from the spirit of what the noble Baroness said, they do depart from the detail, specifically on the issue of burdensome treatment. I was reassured, as I am sure the Committee was, to hear the noble Baroness state categorically at the end of her remarks that she does not believe that burdensome treatment should be a proper part of medical practice. I entirely agree.
I draw the Committee's attention first, to Amendment No. 98, which is supported by my noble friends Lady Finlay of Llandaff, who sends her apologies to the CommitteeI think that many Members know that she is overseas with the Select Committee considering the Patient (Assisted Dying) Bill in Switzerland at present, but she still wants to be associated with the spirit behind the amendmentand Lady Masham.
Last week, we heard from Rob George when he came to give evidence to the pre-Committee hearing kindly organised by the noble Baroness, that there could be times when the artificial administration of food and fluid could hurt a patientobviously, one would want to exclude thator otherwise be unduly burdensome, the point made by the noble Baroness.
In Amendment No. 199which is in my name and those of the noble Lord, Lord Brennan, who, like my noble friend Lady Finlay, is overseas, but in his case on a humanitarian mission to Sri Lanka, and my noble friend Lady Mashamwe have tried to exclude basic care,
as a medical treatment. In other words, we would revert to the standard practice that that is not medical treatment but basic care. It is an interesting question for those with a love of language to ask: since when was the giving of food and fluid regarded as a medical treatment rather than basic care? I do not know who changed the nomenclature, but it was obviously changed at some point along the line.
My amendments would define basic care as delivering nutrition and hydration, however delivered, and remove from the Bill's definition of life-sustaining treatment the giving of food and fluid. The difference between my amendment and that of the noble Baroness is that it makes clear, although it was implicit in what she said, that delivering all food and fluid should not commence or be continued where it would harm the patient or become burdensome.
As we have heard, widespread concern has been expressed that incapacitated individuals might inappropriately be denied basic carein particular,
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nutrition and hydrationas a result of advance decisions or the decisions of attorneys. Amendment No. 98 addresses that concern. It would ensure that basic care, which includes pain relief and nutrition and hydration, however provided, is not withdrawn inappropriately. The provision of food and fluid by artificial means is not medical treatment; it is basic care. Many people with cystic fibrosis, for instance, are fed by gastric tube but live an otherwise normal life. Others with paralysis of the throat and swallowing mechanism feed via nasal tubes.
My amendment would not make unlawful the withholding or withdrawal of food and fluids delivered by artificial means from a patient who is in the process of dying and where the placement of feeding tubes would be regarded as unduly intrusive and inappropriate, or where the risk of placement of feeding tubes would be excessive.
In the Leslie Burke case, the High Court declared that it was hard to envisage any circumstances in which withdrawal of assisted nutrition and hydration (ANH) from a sentient patient, whether competent or incompetent, would be compatible with the European Convention on Human Rights. Richard Gordon QC has produced an opinion on the Bill. In paragraph 40 of his opinion, he refers to the Burke judgment and then argues in paragraph 41:
"where it is proposed to withhold or withdraw life prolonging artificial nutrition and hydration prior judicial authorization must be obtained in most circumstances. The requirement that the Court be involved in such issues stems from the common law but it is enhanced by the Human Rights Act 1998 and the right to respect for private and family life under Article 8(1)".
The judge in the Burke case also referred to the suffering of patients caused by dehydration and starvation. The Bill reflects current professional guidance on the withdrawal or withholding of treatment. As that has now been declared unlawful, the Bill clearly now requires amendment. This is what my amendments and those of the noble Baroness are intended to provide.
"ANH (artificial nutrition and hydration) should remain an area for active therapeutic decision making, based upon the best medical information available to the attending clinicians. I would emphasise that the instigation or maintenance of ANH is not a neutral decision but one that requires detailed assessment of the potential benefits and risks associated".
Dr Westaby's cautious approach appears to conflict with that of the Bill. With ANH defined as 'treatment' for the purposes of the Bill, it can be withheld or withdrawn following an advance decision or a decision by an attorney. If doctors have a legal duty to comply with valid and applicable advance decisions and LPAs, what scope do they have to conduct,
The Bill does not provide for judicial scrutiny of decisions to withdraw ANH, and can therefore be said to be in breach of Article 8. In paragraph 21 of his opinion, Richard Gordon argues that the profound implications of Burke necessitate amendment of the Bill and cannot be left to the code of practice.
"in relation to the withdrawal of ANH, the presumption in favour of life-sustaining treatment is not sufficiently strong in the Bill to satisfy the requirements of Articles 2, 3 and 8 as explained by the High Court in Burke".
In its most recent report, the 4th report of Session 2004-05, the Joint Committee urged the Government to amend the Bill to make it clear that if ANH is to be withdrawn or withheld, the document making that refusal or conferring the authority to make that refusal, whether an advance decision or lasting power of attorney, must make it clear that it applies to the refusal of ANH. Otherwise, ANH should continue to be provided, the committee states. The Joint Committee considers that reference to "life-sustaining treatment" is too vague and that people may not appreciate that a decision to refuse life-sustaining treatment would mean that they would be deprived of nutrition and hydration.
The denial of nutrition and hydration to non-dying patients gets to the nub of the argument about whether the Bill may become a vehicle for some form of euthanasia by omission. It is worth citing a letter that Keith Andrews, then director of medical services at the Royal Hospital for Neurodisability in London, wrote to the BMJ. He wrote:
"It is ironic that the only reason that tube feeding has been identified as 'treatment' has been so that it can be withdrawn. Much of the debate has concentrated on the argument that tube feeding is futile treatment. I would argue that tube feeding is extremely effective since it achieves all the things we intend it to do. What is really being argued is whether the patient's life is futilehence the need to find some way of ending that life. Once this decision is made then whatever means we use to end that life must have the definite intention of doing sothat is, euthanasia".
We do not seek in these amendments to overturn the Bland judgment, however concerned many of us were about that judgment and however many misgivings we have about it. I think that the Minister accepts and understands that. However, we say clearly in subsection (1) that it relates only to the working of this Actin terms of the scope of this Act, it would be effective. It is a reasoned and reasonable attempt to address an issue that perturbs and frightens many people. I commend it to the Committee.
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