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

Examination of Witnesses (Questions 300 - 319)



  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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