Examination of Witnesses (Questions 300
- 319)
THURSDAY 21 OCTOBER 2004
DR MICHAEL
WILKS, DR
VIVIENNE NATHANSON,
PROFESSOR SIR
GRAEME CATTO
and MS JANE
O'BRIEN
Q300 Baroness Jay of Paddington:
Thank you very much for everything you have said, obviously representing
a very substantial part of the medical opinion and medical regulation
in this country. But I do find myself very confused about the
position of the profession. We heard last week from the Royal
College of Physicians and the Royal College of General Practitioners
and we ended up by saying—in fact they used the words themselves—that
their positions were one of "studied neutrality". Having
heard your comments this morning, particularly, for example, your
response to Lord Taverne's inquiry about the hypothetical nature
of some of the remarks you were making, and your answer just now
to my colleague who spoke about whether or not you would feel
it important to refer a patient to another doctor, do you think
it would be more . . . I do not know what the word is . . . more
sensible, more professionally legitimate, if both your organisations
took a studiedly neutral position on all of this, given that you
believe that society as a whole should be dealing with it?
Dr Nathanson: If I may start with the answer
to that one. I think the Colleges and the BMA are in a different
position here. My understanding is that the Medical Royal Colleges
have, generally speaking, not had major debates or ways of ascertaining
the views of the majority of their membership: they may have had
debates in their councils but they do not have our democratic
process. We have had numerous debates, from certainly the 1960s—although
I am pleased to say that was before my time. Certainly over the
last 20 years I have witnessed very many debates. We have had
conferences, where we spent many months, with debate papers on
the internet available to all members, seeking people's views—specifically
on physician-assisted suicide, in that case. So the difference,
in terms of legitimacy for us, is that we are here to represent
the views of our members as expressed repeatedly in an open democratic
process which encourages dissent rather than consent.
Q301 Baroness Jay of Paddington:
If somebody was a member of the BMA and a Fellow of the Royal
College, what would their position be?
Dr Nathanson: Individuals have different views.
Q302 Baroness Jay of Paddington:
I am sorry, it may sound rather trivial, but I think it is important
that we get, as far as possible, a general view of what the position
of the medical profession would be.
Dr Nathanson: I think the views that come through
at our meetings are as representative as you can get, simply because
there is 80 per cent of membership, all of whom are free to put
up policy motions to inform and direct the person who will represent
them at the meeting on how to vote, and because any four members—literally,
it is as few as that—can get together and put a motion up
to the annual meeting, which will be debated; and those debates
are robust and vigorous.
Q303 Baroness Jay of Paddington:
May I make one, I hope, quick point about the hypothetical nature
of the assumption that any change in the law would lead to a decline
in the trust between patient and doctor. Obviously, as you have
said in your response to Lord Taverne, this is something which
is bound to be based on different polls, different surveys of
opinion. But presumably you would accept that in relation to this
country it must be entirely, at the moment, hypothetical. I think
it is interesting—I do not know whether anyone has drawn
it to your attention; I have only recently had my attention drawn
to it too—that in a UGOV survey which has apparently been
taken just in the last month or so of over 1,500 members of the
UK public—and again we come back to my point that this is
an issue for society, I think we agree—the figure which
was quoted was that 79 per cent would trust their doctors the
same or more than currently if the law was changed and 11 per
cent did not know.
Dr Wilks: I accept that here is another piece
of evidence which sits with other pieces of evidence that do not
necessarily help us to know what the general public feel and what
doctors feel about very specific scenarios. My concern, I think,
goes back to the point I have tried to make before, that when
we talk about end-of-life decision-making we can talk about a
whole variety of decisions that doctors might or might not make
with their patients which may result in their death. One of the
things which concerns me about some of these surveys is that they
are not balanced by questions around good palliative care. The
assumption seems to be behind these questions that you are in
a position where doctors can do no more for you: "Would you
support euthanasia?" Given the option of a question which
said, "If you were in intolerable pain and the doctor could
not help you, would you like to carry on like that or would you
rather have a painless injection to end your life?" I think
most of us, faced with that scenario, would know what our answer
would be. But that is not real life. Real life, which comes through
in our members' response, is that patients very, very rarely request
euthanasia but they very, very frequently require reassurance
that they will receive good palliative care, that their pain will
be dealt with, that their other symptoms will be addressed. Also,
I think, another very important point is that the treatment would
be proportionate; in other words, they will not be, as they would
put it, "interfered with". Those are the two overwhelming
concerns that patients at the end of their lives express to doctors.
The fact is that, if you look at the Oregon experience—the
latest report came out earlier this year and it was the sixth
report into the Oregon assisted suicide legislation—you
will see that a very tiny number of people availed themselves
of that legislation. A very tiny number.
Q304 Baroness Jay of Paddington:
But you would accept that palliative care need not necessarily
be universally available or universally successful?
Dr Wilks: Yes, I would accept three things about
palliative care. One is that it is not universally available—as
we would want—and that is a matter of resources and political
will. The other is that there are patients for whom even the best
palliative care is not dealing with their pain. A third group
of which we must be aware is that, in spite of excellent palliative
care, the position is not necessarily one which those patients
regard as beneficial to them—you know, the loss of autonomy.
We have to address those three issues. Whether you then say that,
as a consequence of being unhappy about those three, you then
provide an alternative strategy for those patients, which is to
have their lives ended, and put at some risk the difficulty in
the law that protects the vulnerable, I think for our members
is a step too far.
Q305 Lord Patel: Following on from
there is the comment that Sir Graeme Catto made in his presentation
about the effect this legislation may have on the development
of palliative care. Would you like to expand on that?
Professor Sir Graeme Catto: I fear I should
not have walked in that direction because, as I indicated at the
time, by raising these topics, which I think are important topics,
it does not imply that the General Medical Council has a view
on them. We have no view on that. I raise them simply as issues
that will be raised by our members if and when this comes to be
discussed by the Council, so there are others here who have more
experience.
Q306 Chairman: We are happy to hear,
I am sure, your own personal view. You have explained, quite plainly,
the situation of the General Medical Council. But we have to consider
these issues, and if you are able to help us about them, then
we are very happy to have that help, because we are probably—at
least, I speak now for myself entirely—very much in need
of it.
Professor Sir Graeme Catto: On the ground that
it is a personal opinion and there are others here with much greater
experience in these lines than I personally have, I tread with
some trepidation. But I think the two things need not be in conflict.
It would seem to me it would be perfectly possible to proceed
along the lines being considered on the Assisted Dying Bill without
in any way impeding the progress and desirable developments in
palliative care. I do not see that there is a necessary conflict
between these two.
Dr Nathanson: Among the points that many of
our members make to us is their concern, however, that with palliative
care it is often difficult to get the resources that are necessary,
and the quality of palliative care delivery and the prompt availability
of it. By the nature of palliative care, it is not something that
people should be waiting for: it needs to have sufficient resources
to be available promptly to people in need at the time that they
are in need. Palliative care does a great deal more than pain
control or symptom control; it also gives a great deal of psychological
support, helping people to come to terms with what has quite clearly
been a devastating diagnosis or with devastating news at the end
of a process of treatment. It is in fact a great British success
story, because much of the palliative care movement has been British
led, but the sad fact is that we have not had a sufficient investment
to guarantee that every patient who could benefit from this gets
that treatment, those assessments and advice at the time at which
they need it. There is a great concern that if there were another
option, then, instead of really getting the best palliative care,
some patients would instead be more persuaded towards not what
was their first preference, simply because palliative care is
not available, and that, whatever else we do, we must concentrate
on making sure that palliative care is available. Because, as
Michael has said, the fact is that for most patients it is far
and away the best option and the option they would most want.
Q307 Baroness Hayman: I would like
to take Dr Wilks back to the distinction that he drew between
competent patients who requested that treatment should be ended,
even though that would end their lives; competent patients who
accepted dual-effect treatment, if you like, who were informed
that pain relief might have the effect required and accepted that;
and competent patients who committed suicide themselves because
they had the means and the physical ability so to do each of which,
as I understood it, as doctors you could accept, but you felt
that it was a step, a bridge too far, actually to be involved
in the administration of prescription or actually to help the
patient. If I said to you, "I can see that distinction from
the doctor's point of view; I find it more difficult to see the
distinction from the patient's point of view," I wonder if
you could reflect on that for me.
Dr Wilks: I entirely accept that perspective.
Certainly it is a great deal easier within the discourse that
we have within our profession to know the difference, to feel
the difference, between not intervening excessively, withdrawing
treatment, ensuring adequate pain relief—all of which may
contribute to the patient's earlier death—and actually taking
an action to end life. Doctors feel that very strongly, and the
majority of our members feel that so strongly that they would
not wish to move into that arena: what they would not regard as
treatment. I want to pick up, if I may, the point you made about
what I think you called dual effect, double effect. This is a
slight side journey here, but I think it is very important actually
because much of the debate about euthanasia and assisted suicide
has centred on what, I think, is a very fundamental misunderstanding
that adequate pain relief necessarily ends life. I hesitate to
say this, with a distinguished palliative care physician on your
right, but it is absolutely not the case. In fact, good palliative
care extends life, because you are using levels of drugs that
will not kill. I just wanted to make that point because there
is often this double-effect argument that I think is actually
very bogus.
Q308 Baroness Hayman: I was putting
it very much in terms of patient autonomy.
Dr Wilks: Yes, I am sorry.
Q309 Baroness Hayman: Not in those
particular terms.
Dr Wilks: If I could return to the main road,
as it were. When I discuss these issues with other doctors, the
language appears to be fit for purpose. But one of the things
I enjoy doing a lot as Chairman of this committee is talking to
patient groups, and I entirely agree with you, when you present
the issue of autonomy, the absolute autonomous right, ethically,
morally and legally, to refuse treatment, even if it results in
death, as a competent patient, and under certain circumstances
to direct that ahead with advanced directives and living wills,
and then they say, "What is the difference between that and
me coming to you and saying, `The consequence of me refusing treatment
is that I will die in a few days time, why can I not die now?",
that is a very powerful argument. The main argument is, of course,
a rather static one, which is: "One is perfectly legal and
with the other I could be sent to prison for 14 years if I did
this, or even for life if I kill you." But I think doctors
feel that they have crossed a line. And remember that this opposition
to euthanasia and assisted suicide comes from working doctors
who practise in this field all the time and do feel that there
is a powerful moral difference between actively killing people
and not intervening too powerfully to prevent their death. In
other words, there comes a point with all our patients where we
no longer are struggling, if you like, to help them to stay alive
but accepting the inevitability of their deaths and then supporting
them through their deaths. Accelerating the death is another step.
Q310 Baroness Hayman: That is very
interesting that your first response was: the difference is the
law. We are talking about a position in which we could change
that. Ethics is not a fixed point in time?
Dr Wilks: No, absolutely.
Q311 Baroness Hayman: The interaction
between the legal framework and the ethical framework and the
acceptability is one that is iterative?
Dr Wilks: Yes.
Q312 Baroness Hayman: So that I can
clarify it in my own mind and without being contentious, you said
that it was very rare for someone baldly to request assisted suicide.
Presumably it is also pretty rare for someone to say, "I
want my ventilator turned off."?
Dr Wilks: It is a rare situation for a competent
person to be in that position clinically. It is very rare.
Q313 Baroness Hayman: That rare case
can be encompassed; in the other rare case we draw a distinction.
To put it baldly, you are saying that there is a small subgroup
of competent patients whose autonomy cannot be respected because
of the potential effect on others?
Dr Wilks: Yes, that I think is the balance that
the BMA has drawn in terms of the benefits. It is almost like
a clinical decision: What are the benefits and harms of this treatment?
What are the benefits and harms of the change in the law? I would
accept that.
Q314 Baroness Hayman: On the issue
of whether regulation is an improvement or a detriment to the
current situation . . .
Dr Wilks: Do you mean the professional regulation
process?
Q315 Baroness Hayman: No. Could I
ask you whether you feel that it is preferable for there to be
a complete ban on this practice and an acknowledgment—and
I would be interested in your view, and I know you will not have
precise figures here—that on occasion that ban will be breached—and
we do see rare prosecutions brought—and we will have to
deal ex post facto with that situation rather than have
a tightly drawn piece of legislation?
Dr Wilks: As far as the BMA is concerned, we
are opposed to a change in the law, so we are in favour of a ban.
In terms of a regulatory process, another aspect of the Netherlands
legislation that I think has caused some concern is the variability
of their process of checking, of validating whether euthanasia
has been operated within the law or not. That has improved, but
there was considerable concern about regional variations within
the Netherlands, about whether that was a robust process; and
there was some feeling that it was not being properly regulated
even under the law. So that would give us some concern. The second
answer to your question is that, as a consequence of a ban, obviously
the place that inappropriate end-of-life decisions would end up
would be the courts. It is interesting to observe that, where
doctors and also relatives of terminally ill patients have assisted
their death, the courts have dealt with that extremely leniently
where it has been clear, as clear as possible, that that ending
of life was consistent with the patient's wishes. In other words,
the courts deal very leniently with doctors who end life in circumstances
that this Bill is actually promoting. I think that is an interesting
disjunction between what the law now says about assisted suicide
being a major crime and how the courts deal with doctors who on
rare occasions do assist suicide in the circumstances that this
bill is trying to promote.
Baroness Hayman: Maybe my concerns are about
doctors who assist in circumstances that the Bill is not willing
to promote—and I am not sure that recent experiences make
us feel that our processes are absolutely robust or that much
better than The Netherlands in picking those situations up. Thank
you.
Q316 Lord McColl of Dulwich: Could
I come back to the Royal College of Physicians. Nine months ago
they decided unanimously that they were against the Joffe Bill.
Nine months later, they suddenly changed and said, "We are
neutral", and we were told that was because of the radical
changes in the Joffe Bill. Actually, if you look at the changes,
they are pretty minimal. The question is why this radical change
has come. Those of us who have worked in medical committees for
many years can have a pretty shrewd guess as to why that was,
but my question is what does the GMC and the BMA think of the
view—and the Royal College of Physicians have managed to
persuade all the other colleges to adopt this view to be neutral—that
we are happy for the community to decide and, whatever they decide,
we will do? Is the GMC and is the BMA happy to go along with that?
and, if the people say "Yes, we want euthanasia", then
you will go ahead and agree to dispatching patients? That is the
first question. The second: the conscientious clause in the Joffe
Bill as originally drafted is exactly the same as the clause in
the Abortion Act. word for word. We know what happened in the
Abortion Act. We know of the widespread discrimination against
obstetricians and midwives who were not allowed to take consultant
jobs and obstetric jobs because they were asked in the committee
"Will you take your share of abortion?" and, if they
replied "Yes, I will do abortion within the law", they
were never appointed and hundreds had to emigrate. The lives of
two professors of obstetrics, one in Birmingham and the other
in Aberdeen, were made living hell. Why? Because they insisted
on living within the law.
Professor Sir Graeme Catto: I will try to answer
some of these first. Why the change in position? I have no idea,
of course, is the honest answer to that. But let me try to speculate,
if I may. The guidance that the General Medical Council puts forward
for all doctors is called Good Medical Practice. It needs
to change and be modified from time to time but it is important
because it is not aspirational. If doctors do not abide by the
guidance, then action may be taken against their registration:
they may have restrictions put on their ability to work or there
may be more severe measures. Over the course of some years, that
guidance has changed. I was interested when we were talking earlier
about medical education and the "c"s—the caring
and that. I think the General Medical Council has moved in the
direction of partnership with patients, so you come immediately
into a conflict here where some patients may be requesting something
that at the present time is unlawful and that precludes further
conversation. I think there is a trend within society. Certainly,
within the General Medical Council we are coming to revise our
guidance next year, and I do not want to anticipate what is happening.
But I am sure we are going to be emphasising more and more that
need for doctors to work in partnership with patients and to respond
to their needs and not just provide high quality care. That is
essential, of course, but perhaps not in itself sufficient. I
think the movement in society generally may be in that direction,
but that is speculation. If I could just pick up one of the other
points, this difficulty in raising issues of end-of-life events.
My background as a physician was on dialysis and transplantation,
so patients were not on ventilators but they were competent, and
conversations about withdrawing treatment were very frequent.
That did not frequently result in treatment being withdrawn but
the topic was raised—and generally raised by patients. And,
of course, patients themselves speak amongst themselves: they
have groups, patients' associations, and these topics do arise
from time to time. I do understand the difficulty between withdrawing
treatment and what we are talking about here, but, nevertheless,
I think society is discussing these topics in a much more open
way than perhaps they were.
Dr Nathanson: In terms of "happy for the
community to decide," quite clearly, with all ethical issues,
it is a mixture: it is a partnership between the professions and
the public that we serve. Whether that actually means that you
then derogate any interest or any responsibility to try to influence
that decision . . . Of course it cannot mean that, and the role
of doctors, when looking at a law that would have an impact on
the way that they practise, the relationship they have with their
patients, or any other element of medical practice, is clearly
to comment on that law and, indeed, to lobby for changes in that
law if we believe it to be completely wrong. Generally speaking,
we have never been in the business of saying to doctors "You
should disobey the law", but there are occasions, perhaps
rather more frequently, that we will work very hard to get potential
legislation changed when we think it might have a devastating
impact on the delivery of care to patients. For example, 20 years
ago, with the first Police Bill, the Association was extremely
active in getting major changes. It was eventually withdrawn and
we have a Police and Criminal Act which is considerably different.
Because of the ability in the first draft legislation for the
police to trawl medical records and the impact that would have
had on doctors entering sensitive information in patients' notes,
or, indeed, patients being prepared to say to doctors things that
they did not want potentially to be seen by the police, it was
clearly important to change that. In a sense, that is why we are
here today, because we feel that there is a risk—and you
cannot prove it until something has happened—that this legislation
could undermine that trust, which is particularly important for
the most vulnerable members of society, that they are able to
have in their doctors that the doctor will act in their interests,
and in an informed way in their interests, helping them to make
decisions based upon the balance of what they believe to be beneficial
and what they believe to be burdensome.
Dr Wilks: May I make two very quick points.
I speak as a member of the Ethics Committee of the Royal College
of Physicians. I was not particularly surprised about their studied
neutrality; I was a bit more surprised about the College of General
Practitioners, because my impression was that they had more of
a robust view against assisted death legislation. But I think
the Royal College of Physicians, being unencumbered, as it were,
with a political process that requires them to consult their members
about policy—which is a burden I have to carry—did
have a very balanced debate. I think their perception, rightly
or wrongly, Lord McColl, was that changes to Lord Joffe's Bill
did allow them to adopt a position of neutrality because they
felt that some of the kind of autonomy issues—you know,
the power being given to the patient to make decisions—was
improved, and I think that produced the kind of balanced response.
I do think what you say about the consequence of being a conscientious
objector historically is really important. Appalling discriminatory
actions were taken against doctors who held certain beliefs. I
may not agree with their beliefs, but they have a right to have
them, and they certainly should not lose their positions in the
NHS as a result of that. I would only say that, with the kind
of equality legislation that we have and the anti-discrimination
legislation we have and the increasing frequency of tribunals
that are dealing satisfactorily with cases of doctors who have
been discriminated against, I would hope that is a thing of the
past.
Q317 Lord Patel: My Lord Chairman,
as we are on record, I think, if you do not mind, I would make
a comment about that. Whilst that may have been the case in the
early days of the implementation of the abortion law, also there
were accusations made about discrimination the other way: doctors
who did not have conscientious objection were not appointed to
consultant points because in the region it was found that they
did not wish to provide a service. There were both sides represented.
I think we should put on record that the status now is that included
in the college guidance produced by the Royal College of Obstetricians
and Gynaecologists, which I believe has not changed which is that,
at the appointing committee, conscientious objection to abortion
is not a reason not to appoint the person.
Dr Wilks: Yes. Absolutely.
Q318 Baroness Thomas of Walliswood:
Dr Wilks, when you were speaking, you made a difference between
the phrase "physician-assisted suicide" and "euthanasia".
As you continued, you seemed to use the word "euthanasia"
as though it covered both. In your mind, what is the difference?
Is there a difference between the two? If so, what is it?
Dr Wilks: There are three differences. The first
is a definition that physician-assisted suicide is the provision
by a physician of the means for a patient to end their own life.
Euthanasia—and we have to sub-define that as voluntary euthanasia,
which is the only type of euthanasia that we are prepared to engage
in a debate about—voluntary euthanasia is the ending of
a patient's life by a doctor at the competent request of that
patient; so there is a difference there. I have already said that
morally we perceive no difference: the doctor is engaged in the
process in which the patient's life is actively ended, rather
than passively—if you like to use that rather bad term.
The third difference is that assisting a suicide is punishable
by up to 14 years' imprisonment and euthanasia by rather longer
because it is actually murder.
Q319 Baroness Thomas of Walliswood:
I wanted to ask another question, in view of comments made by
several people. One of the other people who came to talk to us
referred to a factor whereby, once a patient knows that he or
she can talk to a doctor about the possibility of physician-assisted
suicide—and let us keep it at that because that is what
this Bill is about—that is reassuring to the patient, and
they do not necessarily go on ever to request the suicide which
they have discussed with their doctor. However, the current law
in a sense forbids the discussion; since you are trying to invite
your doctor to do something that he will probably tell you straight
away is illegal. Do you think that might have had an effect, where
the take-up of physician-assisted suicide has not been very great;
but because people are reassured it also leads them to discuss
in greater detail the situation around their anticipated death
too; and then maybe they do not ever have to claim what they have
talked about? Do you have any thoughts about that?
Dr Wilks: In the State of Oregon, where assisted
suicide has been the law for about seven years, a very small number
of people knowing that it is available actually take it up. That
said, quite a high proportion of the prescriptions issued in Oregon
for assisted death are not used, so you are quite right there
appears to be some reassurance in having that discussion. I would
argue with your point that it is not possible to have that discussion.
Obviously, you cannot have a discussion which goes to the end
point of saying, "yes, of course, I will help you to die",
but it is absolutely crucial that we have discussions about all
the options with patients, even if those options are not available,
because the questions that come from patients—and Baroness
Finlay will be far more expert on this than I—and the discussions
that patients want to have must be very wide-ranging and designed
to offer them reassurance that there are a whole variety of things
that can be done that do not necessarily include taking that patient's
life, but which is part of the reassurance that they will get
good care. I would not regard it as acceptable that patients are
sitting in hospital wards afraid to have these conversations,
simply because doctors do not have the confidence or the will
to initiate them. That is one of the failures in our hard-pressed
National Health Service—that failure of proper communication
about what patients sitting in a hospital are thinking, as opposed
to what we think they are thinking. Sometimes you have to be quite
sensitive about asking them and exploring what they are thinking.
There are so many fears about end-of-life treatment that are false
and based on a basic misunderstanding about what medicine can
do. I think what you are really pointing at is poor communication,
and I would hold my hands up and say that that is something that
we sometimes do not do very well.
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