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Earl Howe moved Amendment No. 3:

The noble Earl said: My Lords, I make no apology for returning to an issue which I have raised both in Committee and on Report: the question of whether a person acting under a lasting power of attorney should have the power to consent to or refuse life-sustaining treatment.

I am afraid that my deep concern on this has not been dispelled by the Minister's answers. She has pointed to the apparent benefits to be derived from an incapacitated person having a close relative or a friend whom they themselves have nominated to stand up for their best interests when a decision of a life or death nature has to be taken. She has argued that an individual granting a power of attorney should, if he wishes, be able to nominate to act under such a power. The problem with this situation is that it is fraught with risk for the patient.

Where the doctor and the attorney are in agreement about what should be done, there is no issue. The difficulty arises when they do not agree. The degree of transparency surrounding an attorney's decision does not have to be very great. An attorney purporting to act in a patient's best interest does not have to be seen to do very much beyond consulting himself. We have already debated how difficult it is to detect, let alone eliminate, conflicts of interest on the part of attorneys. Precisely because an attorney will typically be someone close to the patient, the risks of such conflicts will be greater, not less. The fact that the patient trusted the attorney enough to give them the power in the first place skirts around the point at issue.

The situation that worries me is the one where that trust is misplaced. Are we really to imagine that a doctor confronted by an assertive and forceful attorney will have the strength of mind to stand his ground or to seek a ruling from the court? Sometimes he may, but I suggest that it will not be by any means routine or automatic. We are talking here about allowing an individual, who almost certainly will not have had any clinical training, to gainsay a doctor whose professional advice it is that a patient should be given life-sustaining treatment, including artificial nutrition and hydration.

Lord Goodhart: My Lords, I am grateful to the noble Earl. Could the power in the Bill not be of help to the doctor, who might find that he or she would prefer the decision to be taken by the attorney? After all, he is the person who knows the patient best. In many such cases would it not be something that a doctor might well find to be a positive assistance?

3.30 p.m.

Earl Howe: My Lords, I agree that in many instances doctors will welcome the opportunity to
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consult with someone close to the patient. I take issue with the proposal that the decision on the refusal of treatment should rest exclusively with the attorney.

Up until now the withdrawal of nutrition and hydration has been either a clinical decision, or in the case of PVS patients a decision for the courts. The Bill permits an attorney to decide upon the withdrawal or withholding of nutrition and hydration. I seriously question whether that is right in principle and I seriously question whether in practice the degree of risk to which it will give rise has been appropriately acknowledged by the Government.

The Minister would have a stronger argument if an attorney were able to insist upon a patient being treated in a situation where a doctor wished to withhold or withdraw treatment, but an attorney will not be able to insist on treatment any more than the patient himself could if he had capacity. The power granted to the attorney under these provisions is either to consent to or to refuse the treatment which the doctor has proposed.

It has been put to me that an attorney, by virtue of the power vested in him over life-sustaining treatment, would be able to exercise greater leverage over a doctor who wanted to withdraw treatment when the attorney did not. As the Bill stands and as the law stands, I simply do not think this is correct. It would be virtually automatic that an attorney would be consulted over the decision—and, as I say, I have no problem with that at all, especially where there is a choice of treatments or, indeed, non-treatment, any of which could be justified under the doctor's duty of care. In the last resort, if there is disagreement, it will surely be possible for an attorney to refer the best interests decision to the court. But I see nothing to be gained, other than a great deal of risk, from giving an attorney a legal veto over life-sustaining treatment for the reasons I have set out.

This would be the first time in English law that an adult would be granted the power to give or refuse consent to treatment on behalf of another adult. For every day treatment decisions, that is one thing; but where the patient's life is at stake, I suggest it is a step too far. I beg to move.

Baroness Barker: My Lords, sadly, I take issue with the noble Earl, Lord Howe. I say "sadly" because, throughout the Bill, I have found his inputs into our discussions perhaps more valuable than those of anyone else for the reason that he was not a member of the Joint Committee which scrutinised the Bill. I have found the way in which he has analysed many of the arguments put forward in the Joint Committee to be a great test of the assumptions of many of the people who have been involved in this legislation for a long time. So it is with great regret that I take issue with him on this point.

I do so for one principal reason. One of the many amendments brought forward by the Government related to equal treatment. It was a response to amendments brought forward at an earlier stage from these Benches. During the discussion on that amendment, I stated that I believed that the provisions
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surrounding equal treatment for people who have disabilities, who are old or who have specific conditions were perhaps some of the most fundamentally important provisions in the Bill.

As someone who has supported the Bill as wholeheartedly as possible all the way through, I have throughout all our discussions and deliberations never ever discounted the fears that people with disabilities have about the legislation. The arguments were put forcefully to the House by the noble Baroness, Lady Chapman.

Those of us who were involved in the Joint Committee discussions will remember the extremely powerful arguments put forward by Jane Campbell, a severely disabled lady, who wrote about going to hospital and willing herself not to sleep for the duration of being in hospital in order that she would not receive adverse treatment. Jane Campbell made one particular point very forcefully: that the one person she trusted above anyone else was her husband. Not doctors, not friends, not advocates; her husband.

She had clearly done what has to be done under Clause 11(8)(a) as it stands at the moment. She had discussed in great detail with her husband, at a time when she had capacity, exactly what she wanted to happen. The clause states that subsection (7)(b), which relates to lasting powers of attorney,

I believe that means that it has to be in writing. So an attorney will have to have debated and discussed this matter with the person, and it will have to have been recorded in writing.

As the noble Baroness, Lady Knight, said, we are talking about one of the most difficult and serious decisions that any person can make. It cannot be taken lightly. I therefore believe very strongly—and the noble Lord, Lord Pearson of Rannoch, may perhaps be surprised to hear me say this because we have not always agreed throughout the Bill about the balance that carers and relatives should have in these matters—that an attorney, a person chosen by someone, should be the person who makes this most serious of all decisions.

I do not for one moment in any way question the motivation of the noble Earl, Lord Howe, but, just this once, I believe that the balance of the argument is perhaps against him. I am sorry, but I cannot support him on this occasion.

Lord Carter: My Lords, I understand entirely and recognise the sincerity with which the noble Earl, Lord Howe, has brought forward the amendment. He has drawn our attention to what could be a serious problem. However, I want to try to interpret the amendment by reference to the family situation I described on Report, where life-sustaining treatment was deliberately withheld so that a dearly-loved son could die peacefully at home, where his last hours were assisted by morphine.
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As I understand the amendment, if an LPA had been in existence and Amendment No. 3 was in the Bill, that decision would have been removed from the parents—although obviously they would have been consulted—and left to the doctors. It may well have been the same decision, but it would have been the doctor's decision and not that of the parents.

In the same family, there was a possibility that an agonising decision might have been taken if their daughter was in a persistent vegetative state. Again, if an LPA had been in existence and Amendment No. 3 was in the Bill, that decision would have been removed from the parents and left to the doctors; and then, of course, eventually to the court.

When we refer such cases to the court, which we do often, we have to remember that these are intensely agonising times for people and that it is a big step to take in such circumstances. In that family, I have no doubt that if the son and daughter had decided to have lasting powers of attorney they would certainly have wished their parents to be named and would have wanted them to take those decisions, in consultation with the doctors, and not just leave them to the doctors.

This is the other side of the argument to the one presented by the noble Earl, Lord Howe, and should be taken into account in an attempt to find where the balance lies.

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