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Baroness Ashton of Upholland: My Lords, I endorse everything the noble Lord, Lord Kingsland, has just said. This is an agreed amendment and I am extremely grateful to the noble Lord for raising the whole question from the beginning. On behalf of the Government, I am very happy to accept the amendment.

On Question, amendment agreed to.

Clause 61 [Scope of the Act]:

[Amendment No. 8 not moved.]

5 p.m.

Lord Alton of Liverpool moved Amendment No. 9:


"(2) Nothing in this Act permits or authorises any decision made with a purpose of bringing about the death of a person ("P").
(3) Where a decision is made for a purpose or purposes not including the purpose mentioned in subsection (2), it is not within that subsection even if made with the belief that it will bring about P's death."


 
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The noble Lord said: My Lords, the House will be relieved to know that this is the last amendment for our consideration today. Members of your Lordships' House have been very patient in listening carefully to all the arguments advanced at Second Reading, in Committee, on Report and again today.

These are issues of great moment. After all, in the United States at the moment the case of Terri Schiavo is occupying many people's minds; they are agonising over the decisions being taken there. The case has required the recall of the whole of Congress to meet on Palm Sunday last and the President to break off his holiday to come back and pass a new law concerning one patient.

We do not want to get into that kind of situation. Anyone who has followed that agonising case will know that it is precisely because we want to avoid that kind of scenario that we have spent so much time going into the detail of the amendments brought forward throughout the various stages of the Bill.

I return now to the question of advance directives and whether or not they are covered by the scope of the Bill; and whether a suicidally-motivated advance directive should be given force in the Bill to bring about a person's death.

Amendment No. 9 relates to the declaratory provision, which was Clause 58 but is now Clause 61. It provides that at page 34, line 39, there should be inserted:

The Archbishop of Cardiff, Peter Smith, engaged with the Government very early on about these questions and, indeed, the Joint Committee chaired by the noble Lord, Lord Carter, also considered them. The declaratory provision was drawn up in consultation with Professor John Finnis, the Professor of Law at Oxford University, who is an internationally renowned authority on these matters. Obviously the Government believed that he was a competent witness, as it were, because they engaged with him, and were very happy to do so.

I shared with him the debate that we had last week. I particularly drew to his attention some of the concerns raised by the noble Earl, Lord Howe, and I asked him whether it was possible to recast an amendment to deal with the issues properly drawn to our attention by the noble Earl in the correspondence that he circulated. It is on that basis that the amendment has been drawn up.

I asked Professor Finnis what conclusion he would reach if the Bill were to pass without such a loophole being closed. He said that the Bill,


 
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That is the view of the person who helped to draft the declaratory provision in the first place.

The Archbishop of Cardiff said:

He added:

So, again, that is a clear statement that there is no desire to overturn Bland in the amendment. Professor Finnis was asked to draw up the amendment on the basis of that being the case, and that he has endeavoured to do.

I should add also that the right reverend Prelate the Bishop of Winchester has e-mailed me to say that, having carefully studied this issue, he strongly supports what is being attempted today to close this loophole. Although I know that there will be divisions on the Bishops' Bench, I wish to record that because the right reverend Prelate has been a strong supporter of the positions that people such as myself have been taking throughout the course of this legislation. I pay tribute to him and thank him.

The earlier version of the amendment was said to have faults, which I believe have been addressed. One objection was that by departing from the Bill's central principle of best interests, the amendment unhelpfully fetters both doctors and the courts. The amendment concerns, inter alia, advance decisions. The Government and the Bill have always made it clear that they are not, and cannot be, subject to the principles of best interests. We have to be abundantly clear about that. Advance decisions will thus be outside the best interests criteria and can be explicitly suicidal.

The other criticisms depend on the assumption that the amendment's second provision, subsection (3), cuts down the ordinary meaning of its first provision, subsection (2). It does not. Subsection (3) makes it clear that one may foresee death without it being one's purpose. Subsection (3) thus expressly permits the principle of double effect to operate and to allow medical staff to make use of it.

The amendment would not force doctors to keep treating a dying, unconscious patient, even where the treatment was futile and even where the family expressed the wish for the patient to die peacefully at home. That is important in the context of what the noble Lord, Lord Carter, said. That would not be a purpose to bring about death and would not be in this legislation. A court would no more construe the removal of futile treatment as such a purpose than it would construe it as an intention to kill.

By contrast, the amendment would not prevent doctors giving palliative treatment to a dying patient if, foreseeably, that might shorten the patient's life. On the
 
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contrary, subsection (3) specifically invokes the principle of double effect and retains it as a valid principle. It avoids the use of words such as "intention" and "foresight" because of the meaning given those words in the case of R v Woollin. It uses the words "purpose" and "belief" in order precisely to retain the rights of doctors to give palliative treatment even if foreseeably that might shorten the patient's life. The amendment achieves that aim perfectly clearly.

The amendment would not prevent those with certain religious convictions such as Jehovah's Witnesses and Christian Scientists making binding advance decisions refusing medical treatment—a right they have and would still have. The noble Earl raised that point. A refusal of medical treatment is not a purpose to bring about death, unless it is suicidally motivated. All now accept that Jehovah's Witnesses and others do not have such a motivation but have, instead, a religious and conscientious objection to certain types of treatment such as blood transfusions. That is not a purpose to bring about death. This is now clearer than ever in my amendment. In this form, it would be beyond doubt that in none of these three scenarios would any problem be given to doctors and patients by the exclusion in subsection (2) of the purpose of bringing about death.

Without the amendment, we have only Clause 4(5), the best interests provision, which prevents anyone in considering a person's best interests to be motivated by a desire to bring about death. But the clause does not apply to advance decisions, as the Government have made clear. Thus, without the amendment, it will be possible under the Bill for an expressly suicidal advance decision to be legal and to be binding upon the doctor with care of the patient.

The preservation in Clause 61 of the Suicide Act's prohibition of assisting suicide will not stop doctors being forced by the unamended Bill to engage in what many doctors and common sense regard as complicity in expressly suicidal refusals of treatment. The Government insist that Clause 61 and the Suicide Act have no relevance or application to advance decisions. Very well—then it will be possible to draft expressly suicidal advance decisions and, if the Bill is unamended, doctors will be forced to comply with them, regardless of whether they have a conscientious, Hippocratic objection.

Suicidal motive is not a strong indicator of lack of capacity to make an advance decision when it has been made well in advance with due specificity, in writing, witnessed, with the Bill's required statement of awareness of risk, and so on, by someone known to want or support assisted suicide or euthanasia. It would often be impossible for doctors to have any honest doubt about the validity of such an advance decision. Thus they would be forced to comply with them, even against their consciences.

It must be remembered that doctors are currently forbidden to cause harm, still less death. That is why they are forbidden to take part in executions, save to certify death. To depart from this principle is very serious and significant, but the unamended Bill does precisely that.
 
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Application to the court by a doctor confronted with such an advance decision, even if permitted by hospital managers, would be of no help since the court, like the doctors, will be compelled by the unamended Bill to recognise the validity of such an advance decision and therefore to require the doctor to comply with it.

I shall say just a few words on what the amendment would not do. It begins with the words "Nothing in this Act". It would thus be restrictive only of decisions taken under the Act, and not decisions taken outside it by doctors, the courts or whomever.

I have been careful to take legal advice about this. In particular, the amendment would not reverse the Bland decision, although I for one would be glad if it did. That decision is outwith the Bill and would be unaffected by the amendment.

The Bill tends to fetter and restrict doctors and even the courts in ways that could be harmful to sick and vulnerable patients. Let us consider, for example, that a very old advance decision may not represent the patient's contemporary wishes, but the patient may be unable to communicate that change of mind. In that case, under Clause 3(1)(d), the patient will be taken to be lacking capacity, and so his or her advance decision will prevail, even if, unknown to the doctors and relatives, it no longer represents the patient's contemporary wishes. As the Bill stands, the advance decision will be decisive and binding. In such a case, the advance decision will have the unwanted effect of overriding the patient's change of mind because he cannot communicate it.


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