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Baroness Ashton of Upholland: My Lords, that would be extremely helpful, for we need the identities in order to follow up the cases with the individual trusts. If the examples are as they seemed, the issue is not one of this Bill, but is one of ensuring that the way in which the NHS is operating is appropriate. We would want to do that. I am grateful to the noble Lord for clarifying that he will do that, and I look forward to receiving the information.

Case law is very clear on these issues. It may be helpful if I briefly set out the current position, both in case law and in medical guidance. All health
 
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professionals have the right, whether for reasons of conscience or on other grounds, to transfer the care of a patient to a colleague. In Re B, the President of the Family Division said:

Medical guidance is similarly clear. GMC guidance concerning conscientious objections to the withdrawal or withholding of treatment from a patient refers to the doctor's duty to,

The BMA guidance about a doctor's conscientious objection following an advance decision to refuse treatment states:

with that decision, while of course ensuring that he or she finds someone to take over the care.

The position is different from that of the Abortion Act 1967. I am trying to check for the noble Lord, Lord Alton, precisely what monitoring has been done since the Select Committee reported 15 years ago. I am sure he will understand that, because we are dealing with this Bill, I do not have to hand what happened as a consequence of looking at the Abortion Act.

The explicit conscience clause in the Abortion Act modifies the duties which would otherwise be imposed on the clinician by the law of negligence. It provides a defence against liability in a case where the clinician does not provide the treatment. As noble Lords propose, the equivalent in this Bill would be to provide a defence against liability in assault, when a doctor treated a patient when that treatment was contrary to either the patient's valid and applicable advance refusal or contrary to the patient's best interests.

These amendments, if carried, would change the current position on conscientious objection for patients who lack capacity. They would allow for a doctor to withdraw from the care of a patient without making arrangements for that care to be transferred. They would protect a doctor from liability if, for reasons of conscience, he continued to treat the patient when that treatment was contrary to the valid and applicable advance decision, bearing in mind the safeguards that the noble Baroness, Lady Finlay, has already described about the test of being satisfied and how that test is, if you like, at the bottom end of the scale to ensure that if doctors have any concerns at all they can treat without fear of any liability.

Under this amendment, doctors could also give treatment even when it was contrary to the patient's best interests. That flies in the face of everything we are trying to establish in the Bill. The amendment would also create a confusing situation whereby a doctor with a conscientious objection would have to arrange for substitute care for a patient who has capacity, but could simply walk away from a patient who lacks capacity. That cannot be right.
 
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It is important to balance the right of a doctor to conscientious objection with the rights of patients to decide what treatment they would want to refuse. That is what happens now. I believe that we should continue in that vein.

I want to tackle briefly the points raised by the noble Lord, Lord Patten, which I am sure he would accept are slightly wide of the amendment before us. None the less, I am prepared to deal with them. I should say, first, that the Government will give evidence in the Burke case on life-sustaining treatment in general, which of course includes ANH. It is relevant to the appeal. I shall quote precisely what the Department of Health has said:

I do not think that the department could be clearer than that. As I have said at previous stages, we must look at the breadth of the judgment which suggests within it that patients can demand treatments. That is an issue both in terms of doctors' clinical judgment and, ultimately, in terms of resources. In those circumstances and drawing on his own experience, the noble Lord will not be surprised to hear that clarity is being sought by the department.

Lord Patten: My Lords, I am grateful to the noble Baroness for giving way. I appreciate entirely what the Department of Health has said in what I guess is a statement—I am not sure whose words the noble Baroness has been good enough to bring to our attention. But I referred to the letter from the office of the solicitor in the Department of Health to the registrar in the Civil Appeals Office stating the grounds on which the Department of Health wishes to enter into this appeal. While I shall not weary the House by repeating what it says—it is on the record already—it is quite specific. It does not refer to the exceptional costs that follow from pursuing new and experimental procedures that a patient might unreasonably be judged to demand, but refers simply to the cost of ANH in individual cases. There seems to be a difference between what is being said by the spokesperson for the Department of Health and what is being said by the department's own legal representatives.

Baroness Ashton of Upholland: My Lords, there is no difference whatever. If the noble Lord heard what I said at the beginning of my remarks, he will know that the costs of life-sustaining treatment were being submitted as part of the evidence, which includes ANH. However, I read out what was said by the Secretary of State in terms of the purpose behind the joining of the appeal. It does not seek to challenge the desire of people to request ANH provided that it is in their clinical best interests, which I am sure the noble Lord accepts, but simply to look at the broader aspects of the judgment. That was also most certainly the basis of my discussions with Ministers.

Finally, I make no apology for the fact that we have almost 100 amendments to the Bill. None reverses a decision of another place. On the contrary,
 
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all the government amendments either take forward commitments we made in another place or respond to issues that were raised and have been listened to by the Government in your Lordships' House. The House and the noble Lord should welcome that because it demonstrates how hard we have tried to make sure that the Bill leaves this House in good order and provides the other place with an opportunity to debate it effectively.

I have said all that I can say. I am absolutely clear in my mind that health professionals will be able to cite conscientious objection in circumstances where it is appropriate. I have already offered to look at individual cases. On the consultant who is saying that he wishes to resign, I would be happy to put him in touch with people who, it is hoped, will be able to persuade him otherwise by assuring him that, in case law and in guidance, we already have sufficient safeguards to ensure that doctors are covered.

More important is that the effect of these amendments would be to the detriment to the Bill. I hope that the noble Baroness will feel able to withdraw them.

Baroness Knight of Collingtree: My Lords, I am grateful for the comments just made by the noble Baroness, Lady Ashton. However, I still cannot understand why it is that so many people outside this place are very worried on this score. If it is correct that doctors and nurses will still be permitted to act according to their conscience, why have so many of them been in touch with me? That, I do not understand.

I am bound to say, with the greatest respect to the noble Baroness, Lady Finlay, that I am just a little tired of having an argument which is used against me in one respect suddenly being turned around the other way when it suits those who do argue against me. I refer in particular to the fact that I have repeatedly tried to ensure that patients in hospital are given food and liquids. I am told that everything is perfectly all right for all patients in hospital because there is such a thing as good practice. It is always done and patients are always looked after. But, suddenly, the passing of my little amendment would mean that patients will not be looked after. I do not accept that. Surely the consultants in charge of patients and those who ensure that everyone is treated properly would be absolutely appalled at the idea that clinicians and other staff will walk away from wards because we have pressed for the right of some of them to have a conscience.

I do not think that this series of amendments goes against patients' interests for one major reason, which is this: nothing that helps doctors and nurses to do their jobs effectively and within their consciences could possibly harm patients. Therefore I do not accept that argument.

I intend to withdraw my amendment for the simple reason that I know very well that while a number of noble Lords would vote in support of it, it would not be carried. I have no wish to waste the time of the House. But at least it is on the record that I have a conscience and have been determined to fight for others to have one too. I beg leave to withdraw the amendment.
 
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Amendment, by leave, withdrawn.

Clause 5 [Acts in connection with care or treatment]:

[Amendment No. 2 not moved.]

Clause 11 [Lasting powers of attorney: restrictions]:


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