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

Examination of Witnesses (Questions 281 - 299)



  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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