Examination of Witnesses (Questions 281
- 299)
THURSDAY 21 OCTOBER 2004
DR MICHAEL
WILKS, DR
VIVIENNE NATHANSON,
PROFESSOR SIR
GRAEME CATTO
and MS JANE
O'BRIEN
Q281 Chairman: Good morning. This
morning we are expecting to hear from the British Medical Association
and the General Medical Council. I think you will know that the
system is that the evidence is transcribed and witnesses have
an opportunity of studying the transcript in order to correct
any errors in transcription, but not, of course, to revise or
improve or otherwise alter what they said at the time. Our meeting
is for about an hour and a half for the evidence session, although
that is not absolutely rigid. We would invite the witnesses to
give short presentations—we have, of course, the written
submissions already, but it is sometimes useful to start off with
short oral presentations—and then I would invite the members
of the Committee to address any questions to the witnesses, possibly
to one or more depending on the nature of the questions. I leave
it to you to say who is to start and perhaps you would please
proceed.
Dr Michael Wilks: Thank you. I am Dr Michael
Wilks and I am Chairman of the Medical Ethics Committee of the
British Medical Association. I am also Chairman of what is called
the Representative Body of the BMA. That is an important thing
to say because the Representative Body is the policy-making body,
about 500-strong, of the British Medical Association and it is
a body which has regularly reviewed our policy on both physician-assisted
suicide and on euthanasia. There are a number of areas I would
like to highlight in relation to the written evidence we have
provided. The first is to note that the BMA is a professional
association that represents about 80 per cent of practising UK
doctors, and we have a strong representative process and a political
process in which policy-making is carefully considered and reviewed.
I say that to make the point that this issue has been consistently
and regularly reviewed by the BMA. That said, we are aware both
within the BMA and within society as a whole that there are widely
varying beliefs about both physician-assisted suicide and euthanasia,
and different types of questionnaires and polls bring up different
results. But I think it is fair to say that there is a perception
in medicine and a perception in our patients and in society generally
that the ground on which we base a lot of our judgments about
euthanasia and assisted suicide is shifting. That is inevitable,
because of the changes in medical technology, the ability to preserve
life where we could not otherwise preserve life, and particularly
issues around palliative care. You will be aware—and this
is really my second main point—that both the BMA and the
General Medical Council have issued very detailed guidance on
the withdrawing and withholding of life-supporting medical treatment.
Decisions around whether to continue treatment or whether to withdraw
treatment, whether to withhold it, not give it at all, in a whole
variety of clinical situations, where to continue treatment would
provide a burden to the patient, are a matter of very careful
consideration by us; and the law, the Common Law The law that
has been consistently backed up by court cases, is that obviously
patients with competence can make decisions that they do not wish
to have treatment, even if that treatment will result in their
lives ending.
Q282 Chairman: Even if the absence
of the treatment—
Dr Wilks: Yes. Perhaps I could refer you to
the fairly well known case of Miss B, who was a fully competent
patient who wanted to have her ventilation ended, knowing that
would end her life. Her medical carers were unhappy about that.
The case went to court and it was, of course, quite properly found
that she had full rights under the law to have her treatment switched
off, terminated, and that would result in her dying, which indeed
it did. The interesting thing about that case is that there was
found to be a trespass by the doctors on Miss B in refusing her
request. So the Common Law is absolutely clear that a competent
refusal of treatment should be upheld, should be respected, even
if the patient will subsequently die. That is not the same as
a medical team intending that a patient should die. When we make
decisions about withdrawing or withholding treatment—and
this, I think, was very well rehearsed in the recent case of Charlotte
Wyatt—we are making, first of all, clinical decisions based
on the value of the treatment and the value of continuing the
treatment and whether continuing the treatment will actually be
beneficial or a burden. That is a clinical judgment, but we have
to do that through the view of the patient as far as we can ascertain
it. In other words, it is all very well for doctors to make clinical
judgments about what is good and bad for people but they have
to be tested against what the patient might feel. In the case
of people who lack competence, that obviously requires more consultation
with family and, in the case of children, with parents, but the
"best interest" judgment must always be made on the
basis of how we the doctors would feel the patient would view
the benefits or harms of the treatment decisions that we are proposing.
That, of course, is something that we can do quite confidently
when the patient is competent. That process is entirely legal,
entirely proper, and is covered by very careful guidelines. Some
people say—and this is where I think the ground is shifting—that
if patients can make competent refusal decisions to have their
treatment ended and the consequence is that they will die, why
does medicine not allow an extension of that principle to the
autonomous right to have one's life ended? This is where we come
up against some difficulties that the BMA has rehearsed in our
guidance, but, to be brief, there are two main areas of concern.
One is that it moves medicine and medical care into a different
field, in that an option that would always have to be presented
to all patients for whom care at the end of life was being considered
is the ending of that patient's life actively by the doctor; in
other words, withdrawing or withholding treatment might be an
option but also euthanasia would be an option. My second main
point is that that creates for our members, consistently voting
against euthanasia and physician-assisted suicide, a different
type of relationship between the doctor and the patient, and one
that, once established, has fairly unpredictable consequences.
My final point—and I could make other points but I am sure
they will come out in questioning—is to point to the difficulty
of adequately legislating for euthanasia from other jurisdictions,
particularly in The Netherlands, where this has happened. If you
examine the outcome of the changes to the law in The Netherlands,
you will see, from the point of view of those patients who feel
that the law has now provided them with an option they would wish
to have their lives ended in certain very tightly regulated circumstances,
such as terminal illness that obviously provides a benefit to
those patients from the perspective of those patients. The down
side is that we know a number of patients have their lives ended
outside the law. Estimates in 1992—which I appreciate is
a long time ago, but there is no evidence that the situation has
greatly changed—show that about 1,000 patients in The Netherlands
had their lives ended involuntarily. In other words, while we
may have a reasonably rational conversation about voluntary euthanasia
(euthanasia which is the ending of the life of a patient by a
doctor at the patient's competent request), involuntary euthanasia
appears to be a practice in The Netherlands that has not died
out simply because the law has been changed. My underlying point
in raising that data is that it therefore seems difficult from
previous experience to create a law that adequately delivers to
those people the right to die without trespassing on vulnerable
people for whom the assumption has been made that they would wish
to die but they were never actually consulted about the process.
I think that is a damaging result of well-intentioned legislation
of which we should be aware and which we should take into account
when we consider the consequences of a change in the law. I think
that is all I really want to say at this stage, my Lord Chairman.
Q283 Chairman: Thank you very much.
Dr Wilks: I will pass on to Sir Graeme Catto.
Q284 Chairman: We have the General
Medical Council and the British Medical Association together.
Is that quite convenient, Sir Graeme, from your point of view?
Professor Sir Graeme Catto: It is sometimes
uncommon.
Q285 Chairman: It may still be an
advance.
Professor Sir Graeme Catto: I am Graeme Catto.
I am the President of the General Medical Council and I am a physician
to trade. The GMC is responsible for maintaining a register of
doctors who are fit to practise in the United Kingdom. We take
action where there are concerns about the doctor's ability to
practise; we set the standards for education; and give advice
to the profession on standards of professional conduct and performance
and on medical ethics. The General Medical Council has never discussed
euthanasia and consequently has no policy which I can reflect.
I suspect there are two reasons for that. First, the General Medical
Council expects doctors to comply with the law: a conviction for
a criminal offence automatically raises a question about a doctor's
fitness to practise. The General Medical Council discusses matters
of professional conduct and ethics where this will affect guidance
issued by the council, but on matters such as euthanasia or assisted
suicide we would only ever advise doctors to follow the law. Secondly,
matters of such fundamental importance as euthanasia are really
not issues which should be determined by the professions or through
bodies such as the General Medical Council. Only Parliament, we
believe, should be able to determine these issues for our society.
The GMC has, as Dr Wilks has already indicated, issued guidance
to doctors on withholding and withdrawing life-prolonging treatment.
This provides a framework for doctors to help decision-making
in this very difficult area. That we have issued such guidance
does not imply that we have a view on wider issues of euthanasia
or assisted suicide. We understand the view that there is no moral
difference between withholding life-prolonging treatment and taking
active steps to end a patient's life or that there is a continuum
which spans both withholding treatment or providing drugs which
may have a double effect and taking active steps to end a patient's
life. We understand that view but we do not share it. We believe
that active steps to end a life raise questions for society on
the value it attaches to human life and the role and responsibilities
of those curing or restoring health indeed, those who are responsible
for caring for individuals who are nearing death bear special
responsibilities. Legislating to enable doctors to assist patients
to die, whether directly or indirectly, goes further than to acknowledge
that in some circumstances it would be generally regarded as humane
to end a person's life. A number of issues, apart from the wider
issues of society's attitude to the value of life, need to be
considered. These include possible effects on patients' trust
in the medical profession; the impact on the development of palliative
care and on the psychological effects for individuals. The General
Medical Council claims no particular expertise in these issues,
nor by raising them do we imply that we have answers to them:
I raise them simply as matters that may be of importance for the
Select Committee to address. Thank you, sir.
Q286 Chairman: Thank you very much.
Would either of the ladies wish to add anything at this stage?
Ms O'Brien: Not at this stage, thank you.
Dr Nathanson: Not at this stage, thank you.
Chairman: In that case, the stage has been reached
for members of the Committee who wish to address questions to
the witnesses to do so.
Q287 Lord Taverne: I would like to
put two questions, the first one to Dr Wilks. Clearly the BMA
attaches a lot of importance to the social consequences of a change
in the law. It is in your written evidence that, even though one
survey found that 48 per cent of doctors surveyed—this is
the Glasgow example—favoured a change in the law, that would
not change the view of the BMA because of the potentially harmful
effect to society. Dr Wilks, you have stressed in your evidence
that in fact the Dutch law had apparently resulted in undesirable
consequences of continued involuntary euthanasia. But if in fact
the evidence suggests that there is no worsening position of involuntary
euthanasia and, indeed, the position may be somewhat better if
the law were changed, does that not fundamentally undermine your
case? You must be aware of the studies which show, in so far as
one can tell these things, that the rate of involuntary euthanasia
in The Netherlands is much lower than it is generally, and that
there is no case in any other country in Europe where the rate
of involuntary euthanasia is lower than it is in The Netherlands
or significantly lower. The rate of involuntary euthanasia in
some cases appears to be about five times as high as it is in
The Netherlands. If in fact it shows that there is no harmful
effect on the rate of involuntary euthanasia—which of course
is a very important issue—is your case not undermined?
Dr Wilks: You used the words like "apparently"
and "as far as one can judge", and I think that is an
important point, because "as far as we can judge" is
not very far, in my view, as to the rate of what really we are
saying is the number of patients who are killed by their doctors
in ways that are kind of covert. We have no evidence on that whatsoever.
Evidence is offered that there are high or low levels of involuntary
euthanasia in a number of countries, and certainly the supporters
of the Dutch legislation would argue that they are simply legitimising
something that was happening before. But even then it is difficult
to see the evidence for that. I think also that we need to be
very careful about definitions. I went on at perhaps too long
a length about the issues of withdrawing and withholding treatment,
but there are a whole variety of decisions at the end of life
that may result in the death of the patient but not intending
the death of the patient. The number of times that doctors do
things intending the death of the patient is actually, I think,
very small, and I would think, given the highly controlled regulatory
structure around hospitals—particularly as we remember that
in this country most people do die in hospitals—highly unlikely.
I do think that in a lot of these surveys there is confusion about
the ways in which doctors might appear to be hastening the death
of the patient by removing treatment, by withdrawing treatment,
which are all perfectly legal, and I have a concern that some
of these accusations of involuntary euthanasia are actually perfectly
legal and very robust and sensible decisions about simply withdrawing
treatment.
Q288 Lord Taverne: But do you not
contradict yourself? In your statement you made a lot of the fact
that the rate of involuntary euthanasia in The Netherlands was
high, and then you say, "But we can't tell how high it is."
In so far as there are studies—and these are not worthless
studies—they show that actually the rate of involuntary
euthanasia in The Netherlands is quite low.
Dr Wilks: Yes. I think that has now been established
quite convincingly by kind of surveys, but I do not regard 1,000
patients a year as particularly low.
Q289 Lord Taverne: No.
Dr Wilks: The argument is made—and it
is quite correct—that because the vast majority of those
patients are very close to the end of their lives, probably within
two or three weeks, the assumption is made that it would be a
perfectly compassionate thing to do to end their lives prematurely
but only a little bit prematurely. That may be a perfectly justifiable
way of looking at it and very compassionate, but it does mean
that doctors are prepared to work outside established legislation,
and that bothers me, that doctors are given that opportunity by
legislation which may not be tight enough.
Q290 Lord Taverne: Even though this
happens in other countries which do not have involuntary euthanasia?
Dr Wilks: My second point on that would be that
this may or may not be true but I am not convinced that that necessarily
justifies the creation of a law that in itself might cause problems,
simply because we have an unsatisfactory situation. I think that
is perhaps a not entirely logical argument: that, if things are
happening that you do not like, you create a law in which other
things are going to happen that you do not like. I think that
is not necessarily a good way of looking at it.
Q291 Lord Taverne: My question to
Professor Catto is this: you rightly place a great deal of emphasis
on the importance of the effect of a change in the law and what
it would have on trust in the medical profession. Again, one has
to go on what evidence there is about the impact of a change in
the law. It does seem to be well established that The Netherlands,
where they have changed the law, is a country where there is the
highest rate of trust in doctors in any country in Europe: 92
per cent of the Dutch trust their doctors—which is much
higher than in other countries, even though generally speaking
trust in doctors is fortunately very high.
Professor Sir Graeme Catto: I raised it not
to dispute what you just said but because I think it is an issue
which needs to be addressed and which will be raised by my colleagues
if by nobody else.
Q292 Bishop of St Albans: I wonder
if I could address a question to Dr Wilks. I enjoyed your contribution
on the Today programme this morning. Thank you for that.
One of the philosophical foundations of our contemporary society,
to which you referred in that programme, is that personal autonomy
is a kind of "highest moral good" in our contemporary
society. I wonder whether a study has been made by the BMA to
determine whether the major motivating factor which leads people
to become doctors is that they wish to exercise personal autonomy
or whether they wish to exercise care of others.
Dr Wilks: Professor Nathanson is head of our
professional department, which also looks after medical education,
so I would like to refer to her, if I may.
Dr Nathanson: Thank you. It is a very interesting
question. We have done a great deal of work with both older doctors
and younger doctors, including medical students, and we find,
in fact, that, of the values which they bring into medicine, the
reasons they give for becoming doctors are consistent across generations—which
I find quite comforting—and it is about service, caring,
compassion. In fact, we went through a whole list of values, and
nearly all of them began with "c", but there were all
these very positive words of compassion. But they felt their job
was more than that: maybe they did not use the word "vocation",
if we were talking to younger groups, but that it was about caring.
They did not use the word "autonomy" about themselves;
they talked about understanding their patients' needs and providing
for those needs, but providing to all members of society not just
to individuals. I think one of the big things which is addressed
more today at medical school in debate—and I teach at several
medical schools as well—is: How do you balance the rights
of individuals against the rights of society? and a recognition
that autonomy is not always the trump card but sometimes the individual's
autonomous rights are lost because of the damage that could do
to the rights of others.
Bishop of St Albans: Thank you very much indeed.
Q293 Lord Carlile of Berriew: I have
three short questions. The first relates to terminology. Dr Wilks
and, to a lesser extent, Professor Sir Graeme Catto used the term
"euthanasia and assisted suicide". For the purposes
of this proposed legislation, do you see that as a tautology?
or do you see two different issues to be addressed?
Dr Wilks: My understanding of the proposed legislation
is that the majority of patients would have assisted death by
the provision of the means by a doctor, and that the only time
that a doctor would take the life of a patient at their request
would be if the patient was physically incapable of administering
the medication themselves. It is interesting that data that were
published this morning by the Voluntary Euthanasia Society back
up an impression that we have had, that still a minority of doctors,
but a larger number, would support a change in the law on physician-assisted
suicide than would support a law on euthanasia. We can see no
moral difference between the provision of the means and actually
being the agent of the means; I think it is probably just a feeling
of comfort that there is a partnership involved between the doctor
and the patient, as opposed to the doctor being the agent. Was
that the point you were trying to explore?
Q294 Lord Carlile of Berriew: Yes.
You have answered the question.
Professor Sir Graeme Catto: I think, sir, to
the extent that it has not been discussed by the Council, it would
simply be my opinion, and I think I too would not see any great
moral difference between the two. In a sense, the term used here
"assisted dying" is probably an all-encompassing term
that would apply to the way we see it.
Q295 Lord Carlile of Berriew: My
second question is to Sir Graeme. Applying possibly the test of
the cases that have been to the Preliminary Proceedings Committee—if
it is still called that—of the GMC—
Professor Sir Graeme Catto: Until the end of
this month, sir.
Q296 Lord Carlile of Berriew:—or
to the Conduct Committee or possibly the Health Committee, do
you see your GMC guidelines, to which you referred earlier, as
still being fit for purpose and meeting need? or is there evidence
of doctors being disciplined as a result of complaints made by
fellow professionals or members of the public, particularly relatives,
as a result of problems over the absence of lawful euthanasia
or assisted suicide?
Professor Sir Graeme Catto: I am just checking
with my colleague here. I think we have no evidence to that effect.
The number of cases coming forward in that area, I think, has
remained very small. We have no evidence to support that suggestion.
Q297 Lord Carlile of Berriew: My
third question is, again, a practical question. As I see it, if
this proposal becomes law, one will face, for example, in brain
injury teams or in spinal injury teams, sub-specialists of great
skill and with differing opinions on the issue, some possibly
favouring assisted suicide and being able to square it with their
consciences and others having considerable and deep conscientious
objection to it being carried out. Although there is a conscientious
objection clause in the Bill, do you think that is sufficient
to meet the practical problems which might arise, if you think
they would arise, in such circumstances?
Professor Sir Graeme Catto: Once, again, sir,
it is my personal opinion. When we are looking at patients with
complex medical conditions in that situation, then I think potentially
there is a problem with that kind of clause, at least in the short
term. Nevertheless, I am quite sure that from a professional point
of view it is essential to have some kind of conscientious exclusion
clause along the lines which you indicate but I think there may
well be practical problems where you have a small group of doctors
looking after critically ill patients whose continuity of care
matters.
Dr Wilks: If I may add to that. We deal ethically
and practically with certain conscientious objection scenarios,
such as abortion and contraception. Both the BMA and, more particularly,
the GMC (because the GMC has the power to interfere with our ability
to practice as doctors; all the BMA does is just provide disapproval
of its members, which is not perhaps quite such a harsh penalty)
would always argue that it is part of the doctor's responsibility,
where conscientious objection is present, that another doctor
should be found to take on that care. If there are practical difficulties
in providing a doctor of the same level of specialty and competence,
I can see there is a theoretical problem. I do not know how often
that would happen.
Q298 Lord Carlile of Berriew: Would
you regard it as right for a doctor who has conscientious objection
to carrying out this procedure to be required to refer the patient
to another doctor who does not have conscientious objection to
the procedure?
Dr Wilks: Yes.
Q299 Lord Carlile of Berriew: You
would?
Dr Wilks: Yes.
Professor Sir Graeme Catto: The analogy, which
is a poor analogy, is the abortion analogy. I think it is a poor
analogy because it is a relatively acute situation, whereas the
picture you paint is of relatively long-term continuing care and
we do not require doctors to refer forward. I think that would
well be an issue that we would wish to discuss and debate. I would
not like to say what the conclusion to that would be, but, of
course, it is at the heart of your first question.
Dr Nathanson: Could I add one other point. There
is also the problem that in many of the cases that you are suggesting
(for example, in spinal injury and so on) you are not talking
about one doctor, you are talking about teams of doctors, and
I think there would also be great difficulty in deciding who was,
if you like, the primary doctor and decision-maker because the
nature of these teams is that they do work as equals—they
bring different skills and expertise—and so it would often
be difficult to say who was the primary doctor. I think that would
be a particular problem in these circumstances.
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