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Lord Alton of Liverpool: Before the noble Lord sits down, the whole Chamber will have been very moved by what the noble Lord has just said. I think that he will understand and agree that no Members of the Committee have been arguing for any kind of burdensome treatment. Indeed, I think that we all would have acted in the humane way in which the noble Lord has acted.
Has the noble Lord, Lord Winston, had a chance to reflect on what the Joint Committee on Human Rights has said about the inadequacy of the Bill, post-Burke, and whether we should therefore be incorporating something along the lines of these amendments in the Bill to do precisely what he has just been arguing?
Lord Winston: I am sure that the Minister will take a look at the human rights legislation, if she has not already done that. I have no doubt that she will draw attention to that issue in her summing up.
Lord Carter: This group of amendments covers a very sensitive area. One might say that Amendment No. 92, tabled by the noble Baroness, Lady Knight of Collingtree, represents the "absolutist" position. It contains the phrase,
It may help Members of the Committee if I remind them of the conclusions of the Joint Select Committee, on which, of course, the noble Baroness was a member. We considered this point extremely carefully. Our recommendations were that,
"the Bill should seek to draw a distinction between basic care (which would include the giving of nutrition and hydration by normal means as well as actions to assist the general hygiene and comfort), and the use of artificial means of nutrition and hydration, such as drips or naso-gastric tubes. We support the view that the former"
"falls outside what is normally considered to be treatment and should always be available to people whereas the latter should be regarded as treatment in that the decision to use such artificial means is a clinical one to be made in accordance with best professional practice, and in the best interests of the patient concerned, and having consulted those specified"
"We further recommend that the use of such artificial means should be determined by the doctors concerned in consultation where possible with the patient's family, friends or recognised representatives, on the basis of that patient's best interests and having due regard to previously expressed wishes given in any advance decision. If a valid and a clearly expressed wish not to have artificial means of nutrition and hydration is expressed, and the advance decision is otherwise valid, then that wish should be respected".
We have heard a lot about the Bland judgment. Incidentally, I think that, unintentionally, the noble Baroness was wrong and that the five Law Lords were unanimous in their decision. I have looked through the Bland judgment and the noble and learned Lords, Lord Goff of Chieveley, Lord Browne-Wilkinson and Lord Mustill, and Lord Keith of Kinkel and Lord Lowry, were unanimous in their decision.
There is an important point in the Bland judgement. The noble Lord, Lord Alton, and other Members of the Committee have their names attached to amendments concerning "harm to the person" and "unduly burdensome". This is the problem that I have with it. At the end of the first page of his judgment, Lord Keith of Kinkel states:
"The undisputed consensus of eminent medical opinion is that there is no prospect whatever that Anthony Bland will ever make any recovery from his present condition, but that there is every likelihood that he will maintain his present state of existence for many years to come, provided that the medical care which he is now receiving is continued".
Obviously that form of treatment does not cause harm and is clearly not unduly burdensome if it will keep someone alive for years to come. Under that reading,
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the wish of the noble Lord not to overturn the Bland judgment is not met by the amendments, if one accepts what the Law Lords had to say.
Lord Alton of Liverpool: I am grateful to the noble Lord for raising that point. We have been advised that it does not disturb the Bland judgment. I have also discussed that assurance with the Minister, as I think the noble Lord is aware.
Perhaps I may briefly reflect on an incident in Liverpool, where I was serving as a Member of Parliament at the time, resulting from the Hillsborough tragedy. On the same day that Tony Bland fell into his coma at the football game, although several of my constituents died, one went into exactly the same kind of coma. Several years later the Guardian printed a story on its front page about my constituent, Andrew Devine, who by then had regained a great deal of his own personal capacity and is still alive to this day.
Lord Carter: That proves the point that this must be dealt with on a case-by-case basis. However, I return to the argument that if Tony Bland could have remained alive for many years in his condition because his treatment was neither harming him nor was it unduly burdensome, I am not sure how that would be dealt with by the amendments before us.
I have made clear the conclusions of the Joint Select Committee, and I stress again that these are intensely personal decisions. My noble friend Lord Winston has related his experience. Over the past few months I have had a similar one. A close member of my family who received artificial nutrition and hydration for 24 days unfortunately did not live. However, one had to take decisions because she was unconscious. We were in North America and Canada. There fresh forms have to be signed continuously. One had to take decisions on the provision of ANH as well as on other treatments such as dialysis. Such decisions are very difficult and are best dealt with on a case-by-case basis. For that reason I seek a reassurance from my noble friend on the Front Bench that she is quite satisfied that the safeguards in the Bill meet the concerns that have been expressed in this debate.
Baroness Greengross: I rise to contribute briefly to the debate. I want to return to what was said by my noble friend Lady Masham, for which I have immense sympathy. She is always on the side of the sick patient and the needs of the frail person. Unfortunately, we know that quite a number of elderly people in our hospitals suffer from malnutrition because they are not adequately fed or provided with sufficient hydration. That is bad practice, some of which comes about because such people need a lot of care and attention, which takes up a tremendous amount of time. Professor Ian Philp, who is the leader of the national service framework, is doing a great deal to try to change the position so that good practice becomes the norm. That is an excellent initiative and I wish that it were given the legal force that I think it needs. Best
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practice must be observed everywhere in this country and it should not be diminished, as is often the case at the moment.
However, we must recognise that nothing in the Bill would diminish good practice because it is at the forefront of what is being talked about. The "basic care" of a patient includes keeping that patient comfortable with sufficient hydration and nutrition where they can take food. Here we are considering intrusive treatments as opposed to "basic care"which comprises keeping someone's mouth moist and ensuring that they remain comfortable and reasonably happy.
I sympathise deeply with what has been said by both the noble Baroness, Lady Knight, and my noble friend Lady Masham. Whenever a patient receives bad treatment we must fight that, but in my view that should not be done through this Bill, which has at its heart the best interests of the patient. This issue is covered by the principles of best practice and would not be addressed by seeking to change the Bill.
Lord Patel: At the risk of making it appear that doctors speak with one voice, which in itself would be an unusual event, I agree with what was said by the noble Lord, Lord Turnberg. The Bill already ensures all that is sought by the amendment. While the Minister needs to clarify that in her response, I believe that that is the case.
I want to make a point about what the Minister noted in the GMC guidance. Doctors recognise that nutrition and hydration are as much a part of treatment as any other medical procedure. That guidance makes doctors take an interest in the importance of adequate nutrition and hydration in the care of patients. It was not, as has been suggested, produced to enable ANH to be withdrawn by defining it as a treatment; that is to misinterpret it.
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