Examination of Witnesses (Questions 140
- 159)
THURSDAY 16 SEPTEMBER 2004
The Lord Joffe
Q140 Chairman: We come on to the
qualifying conditions. "The attending physician shall have
(a) been informed by the patient that the patient wishes to be
assisted to die." One would expect that that kind of request
would not come out of the blue completely. I do not think there
is any particular discussion in the Bill of any parameters under
which the attending physician might discuss these matters with
the patient prior to the patient's request?
Lord Joffe: I think that point is one which
has been exercising my mind as well. It seemed to me that what
we are talking about here is a formal request. I imagine the process—and
Lady Finlay would be much more conversant with what happens with
palliative care—that the patient at some stage might express
an intention/ask for assistance to die, but it might not be a
serious ask—it might be a cry for help: that could be how
they feel at that particular time—and this would be discussed
with the attending physician and with the nurses, I am sure—because
the first request might be to the nurse and at some stage there
would be a formal request. I think perhaps we should be amending
the bill to say that it is the formal request which should start
the process. I think that is right.
Q141 Chairman: It is worth considering
anyway. I do not know what the right phrase might be, but you
would want to consider it maybe. (d) is related to the definition
of unbearable suffering.
Lord Joffe: Yes.
Q142 Chairman: My understanding is
that the attending physician has to conclude that the patient
is suffering unbearably. But it is the patient that really has
to conclude that he or she is suffering unbearably. What is the
decision that the attending physician is required to have? Is
it that in his or her view it is reasonable to believe that the
patient has concluded that the suffering is unbearable?
Lord Joffe: I think that is right, with one
proviso:—whether it is reasonable for that patient to have
come to that conclusion. I would imagine that if a patient, for
example, said they want to die because they have got a cold and
it is causing them inconvenience, and they told the doctor that,
that would not be a ground. On the other hand, if they were Dianne
Pretty and they told the doctor that they wanted to die, suffering
from Motor Neurone, as she was, and in this terrible state, there
would be no problem. There is a range of areas in between. I think
the doctor must put himself in the position of that particular
patient and, looking at it from that perspective, say . . .
Q143 Chairman: It is the patient's
feeling that it is unbearable that is important?
Lord Joffe: It is, yes.
Q144 Chairman: Therefore, it is the
question of whether the general practitioner, the attending physician
is satisfied that the patient has really reached that conclusion.
That is the idea?
Lord Joffe: Yes, that is very much the idea.
It must be reasonable, as you point out.
Q145 Chairman: Then the consulting
physician is in the same position in (3)(b)?
Lord Joffe: It is the same test.
Q146 Chairman: It is the same kind
of question. Clause 3 deals with the offer of palliative care.
I feel certain concerns about this "to discuss the option
of palliative care". One would expect, and perhaps you will
help me as to whether that is your expectation, that before a
patient got into the situation of considering anything along the
lines of this Bill, he or she would have experienced such palliative
care as it was possible to provide?
Lord Joffe: I am not sure that is actually the
position. I have read an article by Lady Finlay which refers to
areas where palliative care is virtually non-existent or so poor
that she does not blame them in the first place for asking for
assistance to die, even though she does not believe that is the
solution. I think palliative care is not an offer in the sense—and
perhaps that word needs to be changed—of "We can give
you palliative care and that will give you precedence over all
the other people waiting for palliative care." It is to say
"Palliative care does exist, this is what it could do for
you, perhaps you would like to explore whether it is available."
Q147 Chairman: I personally would
find it difficult to get into the situation where there were areas
of the country which were suggested in which palliative care was
very poor or non-existent and there were a certain number of requests
for assisted dying in these. That would not be a situation, I
think, that you would wish to contemplate under your Bill.
Lord Joffe: No, I do not think that is what
I am suggesting. I am saying that everybody who wants to qualify
under this Bill has to have considered palliative care and decided
whether they want to take advantage of that particular care rather
than proceed with assistance to die.
Q148 Chairman: It is on the assumption,
is it, that if they wish palliative care that is what they will
get?
Lord Joffe: In a country where palliative care
is totally inadequate in many parts, we cannot, through this Bill,
attempt to give a right to palliative care to everyone because
it would be a right which could not be met. All we can say is
that if the patient wants to have palliative care he should ask
for it and they should try to arrange it, but if they do not,
if it is not possible, then the patient must make up his mind.
That is what autonomy is about. It is about choosing between the
options available to you rather than the ones you would like to
have.
Q149 Chairman: Clause 5(c) says,
" . . . asked the patient immediately before assisting him
to die whether he wishes to revoke the declaration." There
is quite a lot of provision about the declaration but there is
not much provision about protecting the physician in relation
to whether or not the physician has informed him about revoking
the declaration immediately before he proceeds to administer the
dose or make available the prescription. Would you like to consider
what the situation is if there should be a dispute about that?
Lord Joffe: I think it does need consideration.
It seems to me we do provide that the doctor must verify—that
is 5(b) "verified immediately"—so we would assume,
again dependent on the guidelines, that he would ask the medical
team whether there has been any request for revocation of the
request. He would look at the file as well. But I think your point
is a valid point which needs to be considered, because it could
place a considerable responsibility on the doctor without necessarily
giving him the means to check the position out. I think we will
be assisted in this regard by our visits to Oregon and to The
Netherlands, where we can explore that particular point.
Q150 Chairman: In clause 8 the position
is that if either the attending physician or the consulting physician
has doubt about the competence of the patient, then a psychiatrist
has to be called in. In relation to sub-clause (2) of clause 8,
when the psychiatrist has arrived he is also to consider whether
the patient is suffering from a psychiatric or psychological disorder,
causing impaired judgment, and that the patient is competent.
These seem to be somewhat distinct; in other words, you can distinguish
between competence and impairment of judgment that might arise,
say, from depression. I am not clear why that concern is only
to be considered in a situation where the physicians attending
and consulting have a doubt about the competence of the patient.
Should they not also seek psychiatric advice if there is any possibility
in their minds that the patient is suffering from some psychiatric
or psychological disorder that could impair their judgment?
Lord Joffe: Wherever there are indications which
suggest that the patient may be suffering from one sort of illness
or another which could affect their competence, I think they should
be referred to the psychiatrist.
Q151 Chairman: It seems to be to
be assumed in (2) that you could be competent and still suffer
from depression or something of the kind.
Lord Joffe: Yes, I think we have to look further
into that point and take medical advice on it, because I think
the key to it is really competence to make the particular very
serious decision which has to be made, and we might not need anything
about psychiatric illnesses, which I think muddies the position.
Q152 Chairman: If you would go down
to clause 11(3): "A person commits an offence if he wilfully
conceals or destroys a declaration made under section 4."
It is obvious that if the declaration has been revoked it should
be destroyed, so that clause is a bit too embracing in the way
it is phrased at the moment?
Lord Joffe: Does "wilfully" not suggest
"with bad intent"?
Q153 Chairman: I am not sure that
it does. It just means to have intent. Intent need not be bad,
need it?
Lord Joffe: I see the point. Thank you.
Q154 Chairman: It is worth looking
at that. Clause 11(5): "No provision of this Act shall be
taken to affect a person's liability on conviction to criminal
penalties for conduct which is inconsistent with the provisions
of this Act." That means conduct which is not protected by
the provisions of this Act?
Lord Joffe: Yes, that is correct, my Lord Chairman.
Basically, the approach is that this Bill is not intended to give
anyone any rights other than these very limited rights which are
set out in the Bill.
Q155 Chairman: If a person was accused,
he or she would have to bring themselves within the conditions
specified in the Act?
Lord Joffe: They would have to do that and that
is one of the purposes of requiring all the documentation to be
maintained and to be sent to the monitoring commission.
Q156 Chairman: I expect you have
proposed an amendment to clause 14(3). It has a bit about Scotland
in it and you were going to take out the application to Scotland,
so I assume that bit has gone as well?
Lord Joffe: Yes. I think it is in the Notice
of Amendment but not in here. It should be correct in the one
I have circulated. Thank you.
Q157 Chairman: The last thing I want
to ask you about is in relation to clause 15: "A patient
suffering from a terminal illness shall be entitled to request
and receive such medication as may be necessary . . ." Who
has this duty?
Lord Joffe: It would be, in my view, the attending
physician and the medical team. It is only where a patient is
suffering and either the GP or the hospital are not providing
sufficient and adequate medication to control the pain that they
would seek to invoke this right.
Chairman: There is a problem about transition
from one physician to another. If the attending physician has
a conscientious objection, for example, there may be a certain
time-lag between another physician coming in. I would have thought
that this kind of clause is directed against public rights.
Lord Carlile of Berriew: Chairman, if I may,
exactly the same point arises in relation to clause 7, as amended
in manuscript. Forgive me for interrupting, but I am interested
in the answer in relation to clause 7, which is crucial.
Q158 Chairman: Yes. That is a question
of who is obliged to provide an alternative attending physician
if the attending physician you have has a conscientious objection
to becoming involved in this process at all? It is basically the
same point. I am grateful to Lord Carlile for pointing it out.
Lord Joffe: Yes. First, it would be my assumption
that most attending physicians even with a conscientious objection
would not like to leave their patient totally unattended. I feel
that in carrying on attending to them, they are not actually participating
in the decision to assist them to die but they are carrying on
with the care which they would be giving in any event.
Q159 Chairman: The transition might
be of some importance. This does look like an obligation which
would transcend the particular physicians that were involved.
Certainly the one in clause 7 would do that. It looks as though
the obligation should be put upon some authority or other, the
Secretary of State as the National Health Service, is perhaps
the most obvious one?
Lord Joffe: If I might, I think what this particular
clause says is that "No person shall be under a duty to participate
in any diagnosis, treatment or other action authorised by this
Act". But it does not say that this in any way absolves them
from their duty to care for the patient.
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