Examination of Witnesses (Questions 540
THURSDAY 2 DECEMBER 2004
SHAKESPEARE and MS
Q540 Bishop of St Albans: But they
would have to be killed by somebody else, so they are exercising
their autonomy to impose an obligation on someone else without
asking. They want to impose their will upon the medic to kill
Dr Shakespeare: Actually I think the Bill says
that all doctors would be able to conscientiously object.
Q541 Bishop of St Albans: But there
would be one person who ultimately would say, "Yes, I will".
Dr Shakespeare: Yes, and there are doctors who
make life and death decisions all the time so I do not see that
this is any different.
Q542 Bishop of St Albans: There is
a difference, is there not?
Dr Shakespeare: I am probably being obtuse,
but I do not see it. If I can come back slightly, there is already
evidence in many countries in the world of what would be called
underground euthanasia, of illegal acts performed by doctors or
by others on behalf of people who wish to die. That is unregulated,
it is unknown and it may involve all sorts of abuse. I think there
is a strong argument that careful regulation would reduce the
abuse and, indeed, the defence of mercy killing because here is
a very clear legislative proposal to limit and regulate it and
so if it were outside those limits and regulations there would
be no defence in law that I can see.
Q543 Chairman: You could have mercy
killing that was outside this Bill though, could you not?
Dr Shakespeare: Yes, but if there is not an
Act which legitimates it and says that these are the channels
and these are the considerations and this is legitimate then presumably
illegal mercy killingit may happenwould be much
less defensible in a court of law.
Q544 Lord Carlile of Berriew: Just
pressing that a little further, what is the difference between
what is proposed in this Bill, Dr Shakespeare, and the following
situation: a patient who, after good quality and intensive medical
treatment, wishes to die from the extreme mental pain caused by
an incurable mental illness? What is the difference?
Dr Shakespeare: I do not know.
Q545 Lord Carlile of Berriew: That
is the slippery slope danger of your argument.
Dr Shakespeare: I think that you have to draw
a line somewhere and I think acute depression or schizophrenia
is a hugely problematic thing and I know there are people who
wish to die as a result of it and as impairments go it is a very
severe impairment. However, my worries about capacity and about
abuse and about people who are not competent lead me to feel that
that it would be to go too far. Of course, if somebody is in that
state then there is no obvious assumption why they could not commit
suicide anyway. This is to cover people who are not capable of
committing suicide themselves by virtue of their own capacity
or their physical situation. It is true; your point is very germane
to someone who had an acute psychiatric illness and an acute physiological
restriction but I am afraid that any law has to be restricted
and some people will have just claim but will be outside that
law and I think that may be one of them.
Q546 Lord Carlile of Berriew: I am
talking about the real world of mental illness in which somebody
may be detained under the Mental Health Act and may be physically
disabled from obtaining the means with which to commit suicide.
Why should they not be put in exactly the same position as someone
under this Bill? If, as you seem to accept, there is really no
difference between the two categories, is that not the starkest
illustration of what has been called the slippery slope?
Dr Shakespeare: I did not say that there was
no difference. I said that it was a situation that I did not have
a straightforward answer to. It seems to me that there is a question
about their capacity and it seems that if this Bill had included
such people I would certainly not have supported it; it would
seem to me to be too open. It may be that your Lordships and others
may wish to think carefully about that and extend this law. A
slippery slope is one where we have no control over where we go
next and where one thing leads to another without any consideration
or way of stopping it. This is not a slippery slope because, as
I understand it, it is a very tightly controlled Bill which will
not give everybody what they are asking for. I am sure that many
supporters of the Voluntary Euthanasia Society think this law
is too restrictive and draconian and I am glad about that because
if they were all happy I would be concerned.
Q547 Lord Carlile of Berriew: I want
to ask you an entirely different question. You raised the point
about training and you expressed some confidence that good quality
training could be made universal to clinicians. You cited as your
examples the General Medical Council (which is not in fact a training
organisation, it simply issues pamphlets for this purpose) and
I think you said either the BMA or the BMJ. I do not know if you
were here this morning when we heard the Government's leading
expert on palliative care telling us that something called a Gold
Standard had managed to reach out so far to 16 per cent of primary
care general practitioners in this country, leaving something
like 80 to 85 per cent to access over the years to come. What
is your paradigm upon which you base your confidence that training
could be given to clinicians in the matters raised by this Bill
within a reasonable time so as to provide for robust training
and medical supervision over those clinicians who wished to practice
it and protected totally those clinicians who refused to practise
Dr Shakespeare: I agree with you. I have tried
to train GPs; I have offered to train GPs a lot and they are all
too busy to take advantage of it. I think your point is germane
but presumably the Bill can be amended to say that nobody can
authorise a request to die if they have not been on an approved
training course. That seems to me a practical problem and not
a problem in principle. It may be that the law cannot come into
practice for several years until that training has been achieved.
So be it. I would be utterly supportive of resources and training
going to GPs and to other clinicians. As I understand it, doctors
are always going for periods of training. They are having to catch
up with genetics at the moment which many of them do not know
enough about. This will be another of the topics on which they
will have to be trained but that does not stop us introducing
new technologies or new possibilities in medicine because not
everybody knows how to exercise them. It shows that we need to
be careful about it, but it does not mean that we should not go
down that road.
Q548 Lord Joffe: Miss Davis, you
talked about best interests. Who do you think should decide on
your best interests?
Ms Davis: I am happy with my best interests
being regarded as traditionally regarded best interests. I am
very concerned about, for instance, the definition of best interests
which the Mental Capacity Bill proposes which would be the wishes
and feelings of the person concerned. Nineteen years ago I wished
to die and felt I would be better off dead but those wishes and
feelings did not correspond with what was actually in my best
Q549 Lord Joffe: You think that the
doctors or other people should decide on your best interests and
other patients' best interests.
Ms Davis: I think that a definition of best
interests has already been set down, for instance in case law,
and that is the definition that I think is correct, is safe and
gives vulnerable people the most protection. Talking about people's
wishes and feelings militates against people who are as desperate
as I once was.
Q550 Lord Joffe: Do you believe in
the right of patients to refuse treatment even if the refusal
leads to their death?
Ms Davis: If the treatment is, as I said before,
futile or if it disproportionately burdensome then yes. What I
think a person does not have a right to dobecause as I
explained the right to life is inalienableis to either
request a treatment or refuse it with the intention that that
refusal will bring about their death. It may be that their death
will be a side effect of their decision to refuse the treatment
but I do not think it should be the person's intention that refusal
will cause death.
Q551 Lord Joffe: The law is quite
different in that. The law is that patients can refuse treatment
and it is not a question of whether it is a wise decision, but
it is their decision. So you disagree with the law as it is.
Ms Davis: I do not think that advance decisions
have legally binding status.
Q552 Lord Joffe: I was talking about
a request to withdraw treatment not advance decisions.
Ms Davis: I understand that. I am thinking of
the case of the man who was schizophrenic and he had a gangrenous
leg and he refused treatment to have it amputated. Presumably
that is the sort of case you had in mind. That case has sometimes
been cited as evidence that people may refuse treatment for any
reason whatsoever, but in that case it had not been established
that he wanted to bring about his death; he simply did not want
to have the operation and did not want to have his leg amputated.
I think we have to be very careful about what the person's reason
is. That has been cited as a reason why, for instance, advance
decisions are legally binding; I do not accept that they are.
I think in that case the person's reason for not wanting the surgery
were not probably to bring about his death.
Chairman: I am inclined to think that
we have had a fairly long day and we should stop now. Thank you
both very much indeed for your help. You will have a chance to
correct the transcript of the evidence, not of course to alter
what you said but just to make sure it is properly recorded.