Select Committee on Assisted Dying for the Terminally Ill Bill Minutes of Evidence


Examination of Witnesses (Questions 100 - 119)

THURSDAY 16 SEPTEMBER 2004

The Lord Joffe

  Q100  Baroness Thomas of Walliswood: Could I ask you a more tightly drawn question relating to a particular subject. Some of the evidence we have received has shown that in the eyes of the people producing the evidence there is an absence, incorrect absence, of reference to the nursing profession in the Bill. The sort of point that is made is that, in effect, while doctors might prescribe the dose or prescribe the treatment, it is very often the nurse who delivers the treatment. The other element that struck my attention in this range of evidence was that it is very often the nurse who is maintaining the detail of the record which is kept of the patient and of the progress of the patient and of the treatment given to the patient. It therefore seems odd that you do not mention the word "nurse". In order not to disconcert nurses and to ensure that their professional expertise and the level of care which they deliver to extremely ill and terminally ill patients is not, as it were, put on one side and undervalued, would you agree that it might be sensible to try to alter some of the terminology, so that you have "consultant physicians, nurses and other members of the team" or something like that, so that they are actually drawn in? Of course it will affect their views as well. Some nurses might not wish to be involved, and I think therefore their position as conscientious objectors should also be protected in the same way as is the case with physicians. This is a very down-to-earth kind of point compared with the points that have been made before, but I think it is nevertheless one which may have an effect on the acceptability of the Bill, if that is what you want to achieve.

  Lord Joffe: I certainly agree with you. I think nurses have a key role to play. They are often closer to the patients than the doctors: they are with them all the time. They are only mentioned, as I can see, once specifically, in relation to the palliative care specialists; they are mentioned by implication under the medical care team. The last thing I would want to do is to suggest that nurses should be overlooked in this process, because they will actually be part of the process, and, as you correctly point out, they administer the drugs. They are often key to the treatment of the patient. I would like to think about how we can draw attention to this in the Bill, if there is a sense that nurses have been overlooked, because that is the last thing that we intended.

  Q101  Lord Patel: My questions relate to the practical aspects of the Bill. You started by saying that this Bill is about patients in whom palliative care has not been the answer to the distress: the pain continues despite the palliative care. Could you say to what percentage of patients who are terminally ill this Bill would apply?

  Lord Joffe: Yes, the evidence that I have studied suggests that it covers something between 3 to 7 per cent of patients who are terminally ill.

  Q102  Lord Patel: My second question concerns the rights of the patient to be referred if the physician caring for the patient has a conscientious objection. In that case, the physician who has looked after the patient is no longer to be involved in the process of assisted dying and there may well be a physician who is totally unknown to the patient. Will that be a satisfactory situation? As we understand from the evidence presented in The Netherlands, it is a physician who is known to the patient who is—

  Lord Joffe: As you correctly point out, in The Netherlands, where general practitioners tend to be in small practices, they really do know their patients. In Oregon, of course, the position is different, and the relationship, I think, is not dissimilar from the position in this country. I think it will always be preferable to have a physician involved who knows the patient, but that should not be a bar to a patient who is suffering terribly and measures up to all the requirements set out in this Act. But I think one can do other things. I think one must have access to the records of the general practitioner and the hospital records so that the doctor taking over can be conversant with what has happened in the past. I think it would be necessary in those cases—and I am sure the guidelines which will be prepared will cover it—that they talk to the families. It is not ideal. One needs to look for ways to close this advantage which applies to physicians who are assisting a patient whom they know well to die.

  Q103  Lord Patel: My last question is on the very point to which you have referred, where the majority of these procedures are carried out by general practitioners who are well known to the patient. Today and several times before we have heard in the chamber that many of the patients who are terminally ill wish to die at home, and yet the general practitioner involvement would appear to be much less because the Bill refers continuously to the consultant.

  Lord Joffe: I think if you counted the number of times reference is made to "attending physician", it is referred to several more times, but that is because they have additional responsibilities. To the best of my knowledge, there is only one case where the consulting physician is solely mentioned in an important way and that relates to the determination of the illness. We ask that the consultant should be a specialist in the particular area of illness from which the patient is suffering, and therefore we think that the opinion of the consultant is the most important one in relation to that diagnosis and prognosis.

  Q104  Earl of Arran: Following on from Lord Patel's point, I have a slight layman-like anxiety about the consulting physician, in that so often when one goes for a consultation on whatever is wrong with one and you go to two or three different consultants, you very frequently get two or three different opinions. Do you consider the there would be any merit in having two consultant physicians, thereby making three altogether: the attending physician and two consultants? It is a pivotal point of the whole process of the right to die.

  Lord Joffe: I think it is a pivotal process of the whole process of medicine. If in every case one wants several consultants to make the decision, I think it would actually tax the resources of the NHS considerably. I see your point, but I think there are limitations to the number of safeguards we can have—and I come back to the comparison which we have. Doctors, in the nature of their work, cannot ever be certain. They are making diagnoses on the basis of their experience and their assessment of the patient and they are not infrequently wrong. Indeed, I saw a report published recently in the BMJ that said that 40,000 patients die every year in the United Kingdom because of clinical or other errors. I am not an authority on this, but I just mention this in passing. My view is that one has to strike a balance. We have already introduced so many safeguards—and, remember, always, underlying it all, is the patient's autonomy: the patient making the decision. I think the average patient who is asking to die, after considering all the factors that have been brought to his attention, would probably not feel the need for a second consultant. That said, it is a question of judgment. Just by way of comparison, if I may come back to the position of all the other end-of-life decisions, there is no requirement for more than one consultant and sometimes, perhaps, not even a consultant to make a decision which leads inevitably to the death of a patient.

  Q105  Earl of Arran: So you do not see, therefore, a worrying dissent between the attending physician and the consultant physician if they disagree.

  Lord Joffe: If they both disagree, the process cannot proceed.

  Q106  Chairman: Lord Joffe, I would like to ask you a number of questions about the detailed drafting of the Bill. I think this is probably the best opportunity to do that. You may well have a wish to consider, in the light of what we have looked at, just if any further changes can be made. I think it is clear that this Bill deals only with competent adults.

  Lord Joffe: Yes. I think it is very clear.

  Q107  Chairman: Therefore, there is immediately a distinction between the plight of those who may be suffering unbearably but are affected in their mind in such a way as no longer to be competent.

  Lord Joffe: That is correct.

  Q108  Chairman: Your Bill does not attempt to deal with that.

  Lord Joffe: No. The reason why it does not attempt to deal with that is that it is based on the principle of autonomy and only a competent patient can make a decision in relation to his or her own life. For people who are mentally incompetent there needs to be, perhaps, a different system, but it cannot be based, in my view, on personal autonomy.

  Q109  Chairman: Your Bill is also based on the principle of humanity, you have explained to us, and that would apply to the incompetent as well as the competent. Anyway, it is clear that at the present moment this Bill deals only with those who are competent, in the sense that their minds are in such health that they can take a reasonable decision.

  Lord Joffe: That is the basis of the Bill.

  Q110  Chairman: The next point is on the preamble—the long title, I think we have called it: " . . . to receive medical assistance to die at his own"—taking the masculine—"considered and persistent request . . ."—and I think that is related to the time. That is why we have a 14-day period provided for in the Bill, is that right, so that one could regard the request as persisted in over a period?

  Lord Joffe: Yes, I think there has to be a serious request which persists after the 14-day period.

  Q111  Chairman: We then come down into the sections. First of all, clause 1, sub-clause (1): "Subject to the provisions of this Act, it shall be lawful for a physician to assist a patient . . . to die." The general law is that assisting someone to commit suicide is an offence.

  Lord Joffe: Yes, I am aware of that.

  Q112  Chairman: Do you envisage this Act as providing a defence to a medical practitioner who might otherwise be accused of committing an offence?

  Lord Joffe: That is the intention.

  Q113  Chairman: So that the burden of proving that all the qualifications have been met will be on the medical practitioner seeking to defend himself against a charge of complicity in suicides?

  Lord Joffe: If he were charged, that would be the position.

  Q114  Chairman: The next point I want to make sure I understand is in sub-clause (2) of clause 1, where it says "if the patient is physically unable to do so"—that is to take his or her own life—then, in effect, the attending physician can do so?

  Lord Joffe: That is correct.

  Q115  Chairman: In the case of a person who is unable because of physical weakness to end his or her own life, the doctor actually deliberately ends their life?

  Lord Joffe: That is correct.

  Q116  Chairman: You have dealt with this already, but I just want to be clear about it. The attending physician need not be, according to the Bill, a National Health Service practitioner?

  Lord Joffe: No, they do not have to be. That is correct.

  Q117  Chairman: I know that you made a distinction to do with a sort of specialisation in assisting people to die. That is what I took to be a reason for requiring it in respect of the consulting physician. What is the scope of that consideration in relation to the attending physician?

  Lord Joffe: The attending physician seemed to me to be a physician who is already in place. The patient has a GP, and therefore the GP, if it is a private GP or an NHS GP, is already the doctor of that particular patient.

  Q118  Chairman: I can see that would be the normal situation, but of course you might have a general practitioner who had a conscientious objection to becoming involved?

  Lord Joffe: That is correct, and they would have to look for another doctor.

  Q119  Chairman: I am wondering about the scope of the National Health Service situation in that connection?

  Lord Joffe: Yes, I see what you are leading to. I think we need to consider the implication of what you are saying because it suggests that there could be a specialist general practitioner.


 
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