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Baroness Finlay of Llandaff: My Lords, I have tried, as amendments have appeared, and when the Bill first came before your Lordships' House, to look at this in the context of a clinical scenario. I completely concur with the noble Baroness, Lady Barker, that the vast majority of patients feel very much more comfortable with their own family member, with whom they have often had endless discussions, going round this way and that and looking at "what if". I have spoken to Jane Campbell and I know that that is the way in which she considered all the scenarios with her husband and also with her sister, for whom she also felt a great deal of trust. I am also sadly aware, as a doctor, that a lot of patients do not feel a great deal of confidence in us as a profession at difficult times, nor in the NHS.

However, there is another side to this: there are times when a clinician can feel that a family member may be taking a decision which is not in the best interests of the patient or pushing towards it. In those situations, the doctor will take advice from the Medical Defence Union. We speak about the GMC, but it is the Medical Defence Union that I phone up when I am uncertain and feel that I am in a corner. The Medical Defence Union will support you and will also be the legal adviser to your trust.

There is no doubt that in the trusts where I work, where relatives wanted to shorten a life by refusing a treatment which I, as a clinician, felt should be prolonged because there was a chance of recovery, even though the relatives did not see it, I would be supported in eventually, if necessary, going to a court to be able to continue to treat that patient. There are
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very few times when clinicians feel that treatment should be continued and the family want to withdraw it. It is much more common that a family desperately want to continue treatment which the clinician knows is futile.

I accept that the purpose of an amendment is to allow for those difficult and complex situations. But I have a concern that if we put the power back in the hands of the doctors rather than respecting the position of the attorney, we will fundamentally undermine the principle of patients being able to decide, in advance, in the event of their incapacity, what they would want when they have had time to discuss it in detail with a person they trust.

I urge the House to think very carefully about the wording of the amendment. We speak a lot about doctors making decisions, but it is the family who have to live with their grief after somebody has died. It is the family who wake in the night and think about whether they made the right decision. I see many bereaved families in turmoil because of decisions which they were the tiniest bit worried might have been the wrong decisions. However, I am afraid that I do not see as many clinicians—although I see some—who wake in the night worrying over decisions. That is the nature of the profession; you move on to the next patient. You do your best for the patient in front of you, but it is the family who have to live afterwards in their grief.

Lord Alton of Liverpool: My Lords, I support the noble Earl, Lord Howe, who introduced the amendment at an earlier stage and has rightly returned us to it today. These are, as the noble Baroness, Lady Barker, implied, Solomon's judgments; they are difficult and complex questions. I am sure that my noble friend Lady Finlay is quite right that whatever decision we take, there will be agonising cases in the future where people will continue to grieve at length after the loss of a loved one and wonder whether they have taken the right decision. Whether an attorney or a doctor takes that decision, that will be the reality, whatever happens.

The noble Lord, Lord Carter, was right to recall again the scenario that he placed before your Lordships at an earlier stage. The point about that is that under the current law, the decision in that case was able to be reached in consultation with the doctors, and the family's wishes were observed. So the noble Earl, Lord Howe, is asking for no more than upholding the status quo.

The Bill allows the transfer of decision-making power to a third party proxy, the lasting attorney. The active decisions will then be made when the patient is mentally incapacitated and that may mean no more than unable to communicate a decision. That is set out in Clause 3(1)(d). The lasting attorney could thus make a decision in all sincerity and good faith to require the doctor to withdraw or withhold treatment from the patient, genuinely believing that the patient would have wanted that. The patient, however, may have changed his or her mind. Very well then, you will say—that is fine. But if
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the patient cannot communicate that change of mind, then he will be taken to "lack capacity", which may be only temporary. That is set out clearly in Clause 2(2).

3.45 p.m.

In that case, it will be the attorney's will that prevails, not the patient's will. That will, of course, undermine rather than enhance the patient's autonomy, the point made by the noble Baroness, Lady Barker. If the treatment is life-sustaining, however, the consequences will be irreversible. When the attorney requires the doctor to withdraw the life-sustaining treatment and the patient dies—even if the patient's incapacity is only temporary—it may be too late to see what the patient decides when he returns to capacity, for he may by then be dead.

It is difficult to think of a more complete example of the undermining of a patient's autonomy. That is why I am troubled by the constant refrain that the Bill will somehow enhance the patient's autonomy. Here is an example of where it might do the very opposite.

As we have been reminded, we must also consider the position of carers, doctors and nurses. The lasting attorney will be able to require—that is to say, compel—them to withdraw or withhold treatment. Now if that treatment is life-sustaining, the Bill will allow the lasting attorney to compel a doctor to preside over the ending of his patient's life by the withdrawal or withholding of that life-sustaining treatment. Let us not forget that what is ordinary treatment today can easily become life-sustaining.

The Government withdrew the power to make refusal of life-sustaining treatments from the deputies and they were right to do so. The same must be done in respect of lasting attorneys, because the attorney's view may no longer be that of the patient, but the attorney will prevail if the patient cannot communicate, even temporarily. If the treatment is life-sustaining, the patient may die—in the case of withholding food and fluids, the patient will die—and patient autonomy will be fatally exploded. I do not believe that that should be permitted where the patient's life is at stake. Hence, such power should be withdrawn from the lasting attorney, which is why I support the amendment.

Lord Patten: My Lords, I strongly support the amendment in the name of my noble friend Lord Howe. He explained the reasons for it in his excellent speech a few moments ago. I think that my noble friend is hoping to guard against some extreme cases and make sure that there are no loopholes. This concerns a lot of people in the outside world to whom we must listen, as well as experts, to whom we must obviously also listen with due deference.

Since the Bill has been produced, there has been a lot of concern. The Pro-Life All-Party Group—of which, for the avoidance of doubt, I am not a member—has expressed this concern. I suspect that, as the times alter, as the noble Lord, Lord Christopher, referred to in the last debate, and some of these issues such as euthanasia reach greater and greater salience, it may
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well seek to rename itself the all-party anti-death group. It has expressed concern that a decision by the donee of a lasting power of attorney will override the medical decision of the healthcare team. I would always wish the healthcare team to be important, not HR directors or social workers. I say that with respect to both professions, of course.

I regret that there is no provision for a second independent medical opinion procedure in the case of disputes between the attorney and the doctor. There was tabled an amendment in Committee, as the Minister will remember, to introduce a requirement to seek a second medical opinion in the event of disputes. That was rejected by the Government, and I regret that. If they had not rejected it, we would not be having this debate this afternoon.

As a result, disputes will need to be referred directly to the court. As my noble friend Lord Howe observed last week, how many medical professionals, when faced with a determined attorney with whom they disagree will have the time or inclination to petition the court? How many NHS trusts, as we heard in earlier debates, will be willing to fund expensive litigation? The excellent speech of my noble friend Lord Howe last week bears re-reading in Hansard.

The evidence is worrying. I pick as my witness Professor Sheila McLean, a member of the Voluntary Euthanasia Society and a distinguished academic at Glasgow University. The professor said the following about proxy decision makers when giving evidence to the Justice Committee of the Scottish Parliament in May 1999:

That is research-based evidence. I am a strong exponent of research-based evidence in making up our mind on the issues. So I find the points that my noble friend has made very powerful.

I end on this note. The attorney or proxy decision-maker will have the power to refuse medically advised treatment, yet the research indicates that that may not be making the correct decision. They are life and death decisions. The attorney may have power also over a patient's financial affairs. Those are extreme examples, but the House has to guard against extreme examples. There may well be circumstances in which the family will benefit from a patient's death. Under the Bill, the attorney would have the power to refuse treatment and so, perhaps, hasten that patient's death. It may not happen very often and it may only happen several years down the track, but you can bet that it will happen under the provisions of this Bill. This is a pressing conflict of interest that is not addressed by the Bill. My noble friend
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Lord Howe was absolutely right when he said in his excellent speech that the issue was "fraught with risk". That is why I support so strongly his amendment.

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