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Baroness Hayman: My Lords, I apologise for interrupting the noble Lord, but I heard him make the same point on an earlier amendment.

I fully accept what he said: we cannot look into the mind of someone who has lost capacity to see whether they have changed their mind, but surely that argument works the other way as well. People who had made advance decisions stating that they wished to have artificial feeding and hydration could equally have changed their mind, and, equally, doctors would be bound by the advance directive. The argument cuts both ways. It does not work only for an advance decision to refuse treatment.

Lord Alton of Liverpool: My Lords, I take the point that the noble Baroness, Lady Hayman, is making. She is right to say that such things cut both ways, but it is precisely because of that that I want to see such a provision in the Bill. It would safeguard against the abuses that can occur, particularly where the advance decision is suicidally motivated. The amendment is about that specific set of circumstances.

If the advance decision is suicidally motivated, it will have a purpose to bring about death, and the patient may no longer wish that. It is important that the House is clear about what the Bill will do in those circumstances. Since the patient will die, contrary to his contemporaneous but incommunicable will, it will be the final act.
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It is hard, therefore, to imagine a situation where the patient's autonomy is more radically undermined and defeated. It is hard also if the advance decision is permitted to forbid life-sustaining treatment, hydration or nutrition. The patient may then needlessly die, and, in the case of foods and fluids, inevitably die, contrary to his current but incommunicable will.

The amendment would therefore resolve that issue. It makes a clear, straightforward and relatively short point, but without it, the Bill would continue to permit that situation and, to use the language of the Bill, the patient's autonomy will be radically undermined fatally and permanently. Nobody would wish for such a tragic outcome. I beg to move.

The Lord Bishop of St Albans: My Lords—

The Deputy Speaker (Baroness Thomas of Walliswood): Amendment proposed, page 34, line 39, at end insert the words printed in the Marshalled List.

The Lord Bishop of St Albans: My Lords, I apologise for rising prematurely. It reminded me of a rather odd thing that happened to me once in a crematorium. I was about to press the button and heard over the tannoy system, "Charlie Bravo 50, come in, please". It was the local police car going past. I apologise for my inability to understand all the rules.

I have the greatest respect for the noble Lord, Lord Alton, and his desire, which I share totally, that there should be no loopholes in the Bill that could be used to introduce euthanasia. But, unless I am mistaken—I really do not think that I am—there have been a number of amendments to the Bill that have closed all the loopholes possible. We have also had assurances on a number of occasions from the Minister that it is not the Government's intention to allow any such loopholes to exist that could be used for euthanasia or assisted suicide. I believe that there is also, therefore, in such statements, a matter of trust and honour. When such statements are made, I believe them, because this House is a place where honour matters greatly.

5.15 p.m.

Examples have been given about someone who makes an advance directive which says, in certain envisaged circumstances: "I wish to commit suicide and to be assisted in my suicide by the only legal means available to me—that is, by withholding life-sustaining treatment".

At an intellectual level, that is a fascinating and rather macabre philosophical point to debate—the kind of thing that I would have debated 100 years ago, when I was at theological college. But actually, the distance in time between such an advance directive and the circumstances that then follow could be very long. I therefore find the gap between intention and outcome very difficult to comprehend.

I believe that the example is flawed, because the person making it—or so it seems to me—is playing a semantic game, in which withholding treatment and
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allowing nature to take its course is then redefined as suicide. I cannot get my head around what is going on in that person's mind to redefine things in such a way, unless it is for a strangely perverse and political purpose. I suppose that it would raise a question about whether such a chain of argument could be described as being entirely reasonable. So I do not believe that those semantic games could or should be taken seriously.

Clause 58 is fairly key, as far as I can see. The example is also flawed because there is no guarantee that the circumstances that that person imagined when drawing up that extraordinary advance directive will necessarily be the ones that apply exactly at the time. Thirdly, I confess myself baffled, as I suspect that the noble Baroness, Lady Hayman, is, about how one can actually know of a comatose person whether or not they have changed their mind. I simply cannot know. All that I have to go on therefore is what they have already said, and I have to trust that when they made that initial decision, they made it reasonably and in good faith. If I cannot know then, well, full stop—I cannot know. I suppose that the question is whether the advance directive provisions in the Bill can trump other clauses.

I want to place on record my personal belief that this is a very remarkable Bill. It is noble and humane in its purpose and will ensure that the most vulnerable in our society, which can be and may be each one of us here today, are accorded the dignity and respect that is coterminous with being human. So I wish the Bill every success on its journey.

Lord Elton: My Lords, could the right reverend Prelate inform somebody who has come late to the proceedings but has watched from afar what the position is regarding the first leg of his argument, which related to the withholding of treatment? Does the supply of food and drink, solids and fluid, constitute treatment or not—because on that his argument depends?

The Lord Bishop of St Albans: My Lords, I am not competent in any legal sense to answer that question. If I may say so with the greatest respect, it should be directed elsewhere.

Earl Howe: My Lords, this has the appearance of a very ingenious amendment, but I want to be sure that I fully understand it. I have always understood that the legal meaning of "purpose" encompasses both intention and foreseeable consequences. Therefore, if I am correct in paraphrasing it, the first part of the amendment says that you can take a decision to do anything as long as the person's death is not the foreseeable consequence of what you are doing. If that is right, it would seem at first sight to cut across the decision in Bland which expressly foresaw that death would result from the withdrawal of treatment. I should be glad if the noble Lord could clarify that point, because, although I listened very carefully to him, I have had difficulty with it.
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My second difficulty is with the second half of the amendment. I am sure it is my fault but I just cannot get my head round it. It appears to be saying that where the decision-maker has a belief that what he is doing will bring about P's death, that is all right so long as—referring back to the first half of the amendment—the foreseeable consequence of what he is doing is not P's death. It is important that the noble Lord clarifies the distinction between foreseeable consequences and belief because I have not grasped it.

Baroness Ashton of Upholland: My Lords, the noble Lord, Lord Alton, may find it easier if we all make our points and then he can address them.

I say to the noble Lord, Lord Elton, that we have had many discussions on the issue of giving food and drink and artificial nutrition and hydration. I can give him a pamphlet on that by an expert in palliative care. However, there is a distinction between basic care involving the giving of food and drink if someone is capable of a swallowing mechanism, and artificial nutrition and hydration which constitutes treatment as it bypasses the body's natural functions. The latter constitutes a medical intervention requiring blood tests and the observation of kidney functions. It can occasionally cause discomfort to the patient and is regarded as serious. Therefore, there is a real distinction there.

I know why the noble Lord, Lord Alton, tabled this amendment. He has sought to correct the difficulties of the previous "purpose" amendment that was tabled. But, in fact, this amendment is even more fundamentally flawed than the previous amendment. It is completely unworkable both in law and in clinical practice.

The noble Earl, Lord Howe, indicated that there are real difficulties with using the word "purpose" in this context. The noble Lord, Lord Lester, who is not present today, discussed this at a previous stage. I wish to be absolutely clear with noble Lords. English law is clear. We have taken advice from the widest range of lawyers on this point, including the Lord Chancellor and the senior judiciary, and they are all unanimous. The Law Lords have been explicit—"purpose" includes acting with the clear foresight that death will result. That is why the Government created new Clause 4(5) which focuses on—and bans—decision-makers being motivated by a desire to bring about the person's death.

But the legal adviser Professor Finnis, who is advising the Catholic Archbishop of Cardiff, Peter Smith, and the noble Lord, Lord Alton, continues his use of the word "purpose" in his amendments. This means that the amendment must be read as prohibiting any decision made where there is a foresight that death will result. As we know, in a palliative care setting when patients are dying, this would mean that every decision taken by a doctor is prohibited.

I know noble Lords will say that proposed subsection (3) is intended to remedy this, but I am afraid that it simply does not work. Proposed subsection (3) is trying to say that where a decision-maker does not want to bring about the person's death then this decision is
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permitted even if there is a belief that it will bring about the person's death. It is trying to get around the legal meaning of the word "purpose". But proposed subsection (3) does not achieve that. The only way to do that is to abandon the word "purpose" altogether, which is precisely what we have done in Clause 4(5).

It is absolutely senseless to ban a "purpose", and then try to create an exception by saying that the ban does not apply if you do not have that purpose. Of course it does not. But that is what proposed subsection (3) tries to do. It states:

Even if this subsection made sense and was clear, it cannot possibly undo the fact that under English law "purpose" includes the foresight that death will result. It follows that subsection (3) is completely ineffective and does not act as an exception to subsection (2) at all. As such, the amendment is flawed in all the ways that we discussed on Report. That is, it would force doctors to provide treatment to dying patients even where that was not in the patient's best interests. People would have to die in hospital, not at home in comfort with their loved ones.

It would overturn the Bland judgment, even though the Archbishop of Cardiff has said that he is content to leave the Bland decision unaffected by the Bill. Because the Bill will supersede the common law, it will occupy the field of the common law and all those decisions will be dealt with under the Bill. The noble Lord cannot argue that the Bland decision is somehow outside the Bill. It would overturn the principle of double effect and leave patients without the pain relief that they need at the end of their life. It would disallow people from refusing treatment in advance where they could foresee that death might result. No Jehovah's Witness or any other person of religious conviction would be able to exercise their right—in the case of Jehovah's Witnesses to refuse blood and in the case of other religious groups to refuse other forms of treatment—according to their religion.

I have a couple of other points to make to the noble Lord, because we keep coming back to the question of suicidally-motivated advance decisions. I say again for the record that in the Bill we have made the position better and stronger. First, for an advance decision to be valid, it must pass the formality test. We have made it absolutely clear that it must be in writing. Doctors will no longer have to worry about whether a suicide note containing a refusal of a particular treatment is a legally binding advance decision. It will not count unless the formality tests of being witnessed, in writing, and signed, have been met. Secondly, we have made it clear that the doctor can say, "Even though I have got that, I am not satisfied". It is a subjective test, and it is much easier than the objective tests that we talked about earlier in our proceedings. "I am not satisfied that this document is a proper, valid and applicable decision, and I want to proceed with treatment". The doctor can do that.

Thirdly, even if the formality tests are met and even if the doctor is nervous about saying that they are not satisfied, we have said in the Bill that they can treat while
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referring the matter to the Court of Protection. The Bill creates a new let-out. It says that nothing in an apparent advance decision stops a person providing life-sustaining treatment or preventing serious deterioration while a decision is sought from the court. The Bill does the reverse of what the noble Lord, Lord Alton, claims. It will make it much harder for any suicidally-motivated advance decision to bind a doctor. Any attempt made to request assisted suicide through an advance decision must be regarded because assisting suicide is illegal and remains illegal under the Bill.

I have said that at every stage of the Bill. I have said it to any noble Lord who has come past my office. I have said it to the noble Lord, Lord Alton, and to Archbishop Peter Smith, and to Professor Finnis. That is the position of the Bill. I hope that the noble Lord will withdraw his amendment and see the Bill on its way.

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