Examination of Witnesses (Questions 2000
- 2019)
TUESDAY 18 JANUARY 2005
MS MICHELE
WATES, DR
JIM GILBERT,
PROFESSOR JOHN
FINNIS and DR
FIONA RANDALL
Q2000 Chairman: Obviously when you
are predicting it is a matter of probability and I suppose it
may be possible to draw curves showing one's experience over a
time. We have heard it said that if you do that the standard deviation
in these is very large. Are you able to comment on that one way
or the other?
Dr Gilbert: Yes, I agree with that. I think
the standard deviations are very large. Those figures are for
populations of people, 100 or perhaps even 1,000 patients with
similar stage disease and similar clinical features. We are talking
about extrapolating from that with the wide standard deviations
that you mentioned to one individual together with the incentive
that I mentioned, which hangs on the response.
Q2001 Lord Joffe: The doctors in
expressing their view have said that they had taken into account
the circumstances of that particular patient. We are talking about
the end stage of life lost, the last one, two or three months.
So they are not blindly applying the statistics table.
Dr Gilbert: And yet if we were to get down to
the last one or two months it seems to me we would be coming a
good deal away from the major burden that it seems to me this
Bill is attempting to alleviate, ie the recognition that the greater
problem is with existential suffering and dependence rather than
the last few weeks of people's lives often in hospices which,
based on the evidence I have, can be satisfactorily dealt with
within existing law.
Q2002 Lord Joffe: I am not sure.
The purpose of the Bill is to cover the end of life and the most
pertinent part of the end of life must be the closer you get to
it, the end. Let us perhaps move on to Professor Finnis. Professor,
putting aside for the moment your extrapolations from what you
say was the report of Professor Van der Wal—we will come
back to that because I think there would be grave disagreement
about your interpretation of those figures—the evidence
that we received in the Netherlands was that the society as a
whole was very supportive of what was happening in the Netherlands
and the doctors, by a considerable majority, were also very supportive
of it and everyone was very satisfied with the way things were
proceeding apart from a small group of people mainly motivated
by religious beliefs. Would that surprise you bearing in mind
the view you have expressed of the terrible dangers if this law
were enacted in this country?
Professor Finnis: It does not surprise me in
one major respect and that is this: I have known the general attitude
that is expressed by people in the Netherlands has been from the
outset, from the late 1980s, accepting or complacent or however
you want to put it. My former student, John Keown, started to
go over to the Netherlands in the late 1980s and got a wonderful
frank reception from doctors, lawyers, public prosecutors, everyone
involved in the whole business, and they laid out the kinds of
facts which he subsequently wrote up and which were then amply
confirmed in these government sponsored studies which I have referred
to this afternoon. So in that sense I have known well, since 1989,
that this kind of practice was widely accepted. On the other hand,
he says it goes along with a great deal of ignorance on the part
of the general population of the parameters and extent to which
the law is not being complied with, and of the things that are
happening which are simply outside the law and are not disclosed
to the prosecutors. His explanation of the extent to which the
Dutch continue to trust their doctors and so on would be, to a
considerable degree, that they are still not aware of the facts,
these facts have to be dug out of the tables, they are not really
discussed in the commentary, they are there objectively in the
figures. Beyond that, I am not really in a position to comment,
although I hinted at a comment earlier on when I gave a sort of
amateur's explanation of the different psychology, the cultural
formation etcetera that you have in the United States, which I
visit a lot, and the Netherlands, which I have hardly ever been
to. I am sure there is a difference in attitudes there.
Q2003 Lord Joffe: Are you suggesting
there is some sort of cover up which has misled the Dutch population
as a whole? My interpretation of all the evidence that we received
in the Netherlands was that nowhere is there more discussion about
the issues in depth at all levels of society.
Professor Finnis: Cover up is not the right
word. An absence of commentary certainly exists in relation to
the report that I mentioned. One only has to read the commentary
and compare it with the facts in the tables that they are commenting
on to see that there is an inattention to certain of the facts
that are there in the figures. I do not doubt that there is a
widespread discussion of the fact that you can have these facilities
or experience these forms of release or extinction. I have looked
at books by Dutch doctors in which is graphically laid out the
extent to which they discuss amongst themselves and with the patients
the prospect. All I can say is that the state of mind that comes
across in anecdotal accounts of that sort is one that I would
deeply regret seeing amongst my own friends and the population
in this country.
Q2004 Lord Joffe: But you have hardly
ever been there, did you say?
Professor Finnis: I make no secret of the fact.
I have spent a day or two in Holland. I am speaking of vivid accounts
by Dutch practitioners who are masters of English and who have
translated their own works. Bert Keizer's book, published in the
mid-1990s,[2]
is extremely graphic. It gives a kind of diary of his conversations
with his colleagues and with his patients whom he had killed,
the patients whose death he has overseen in other ways. It is
gripping. It is extremely disturbing if the kind of attitude displayed
and reported by him were to become widespread in this country.
I think it would be a huge change for the worse.
Q2005 Chairman: I think it would
be useful certainly for me to have specific references to the
Government report to which you referred because we have had some
but my recollections are not sufficiently clear to be sure that
they have the same figures as yours and I would like to be sure
that we get a chance to look at the documents that you are referring
to. We may well have them already, but I am not absolutely certain
of that as I sit here at the moment. Therefore, it would be very
useful for me and my colleagues to have specific references so
that we can look at these for ourselves and see whether they are
included in the documents we got from the Dutch government when
we were there.
Professor Finnis: I will supply the Committee
with the article of Richard Fenigsen that I referred to, which
annotates in depth the precise reports that he is referring to.
Those are in Dutch, but the earlier two, the 1991 and 1995/96
studies, have been extensively discussed in the English literature.
Q2006 Lord Joffe: I suppose the figures
will be intelligible.
Professor Finnis: And the figures should be
intelligible.
Q2007 Lord Joffe: The 2001 one has
not yet been translated, although we have summaries of that, but
that is the most recent experience of the last five years and
obviously experience changes. Many of the statistics that you
refer to are contained in a submission prepared by the Linacre
Centre of which you are a vice president or member, which is a
Catholic think-tank, is it not?
Professor Finnis: That is correct, although
I had no part in the preparation of this last submission. I have
not seen it.
Q2008 Lord Joffe: Perhaps you could
take back, when you are producing this, a statement which you
have made and repeated over here, which is that most striking
of all in both the 1995 study and the 2001 study the authors suggest
that it is the patient who is responsible for avoiding termination
of his life. "If he does not wish euthanasia he should say
so clearly orally and in writing well in advance." That was
your statement, was it not?
Professor Finnis: Yes. I was reading from Fenigsen's
article.
Q2009 Lord Joffe: We took this back
and referred it back to the people who prepared the report and
they said they had never stated this and on page 201 I cannot
find anything like this. So perhaps you could explore that as
well when you produce the tie-up which the Lord Chairman has asked
for.
Professor Finnis: I will certainly investigate
that.
Q2010 Lord Joffe: Let us just come
back to the statistics. You say all these statistics are based
exactly on the statistics provided in the 2001 report. You have
extrapolated from those figures to get the figures for the UK,
have you?
Professor Finnis: I have extrapolated from Fenigsen's
account and summary of what is in the report.
Q2011 Lord Joffe: So if Fenigsen
got things wrong you will have got them wrong as well, will you
not?
Professor Finnis: Yes.
Q2012 Lord Joffe: We could go on
for a long time talking about individual statistics which you
have quoted and the interpretation of those statistics. I think
we should leave that and move on to Oregon. You said Oregon was
"a remarkable exception" and that you are absolutely
certain that if this assisted dying were extended to the USA there
would be dire results for the USA. Is that not what you said or
what you conveyed?
Professor Finnis: Yes. I took it in several
stages. What I said is that if this were to be applied in other
states, the first thing that would happen is that the restriction
to assisted suicide and the exclusion of euthanasia would crumble
and fall away. I predict this with high confidence having read,
for example, the judgments of the courts that have commented on
these issues running up to the decision of the United States Supreme
Court which reversed several courts and upheld the line that there
is not a right to suicide or euthanasia in the United States.
But the attitudes of the judges (which I have in fact debated
with Professor Ronald Dworkin, who came before this Committee
in 1994 to support this Bill,[3]
in front of one or more of the authors of those judgments) show
that although the terms of the discussion were officially limited
to assisted suicide, the principles on which they were reasoning
were ones which immediately extend beyond assisted suicide to
euthanasia. So that would be the first thing. Beyond that, I simply
rely on a common sense judgment, which everyone is entitled to
contest or support, that the kind of developments which I showed
the reason for in Holland, not just the fact of, would extend
in the United States as they have extended in The Netherlands,
though I think more slowly in the United States than in The Netherlands.
Q2013 Lord Joffe: What you are saying
is two things. One is that there would be a change from a patient
assisted dying to active euthanasia and this would pervade the
whole of the USA. What possible evidence or justification have
you for saying that because the position in six or seven years
of Oregon is that no one has actually sought to change the law
there to move it from assisted dying to active euthanasia? The
people who you referred to who have run these campaigns were emphatic
in their evidence to us that there was no chance that the law
would be extended in that way. Why are you so certain?
Professor Finnis: Their principles and the content
of their general propaganda go far beyond suicide and certainly
extend to euthanasia. They have made a perfectly realistic and
absolutely correct judgment that at the moment it is politically
impossible to go beyond assisted suicide in the United States.
Even amongst what you might call the "sophisticated elites"
in the United States there is a kind of assumption (entirely naïve)
that there is some big difference between assisted suicide and
doctor-administered euthanasia. I think this is a way station,
which would be rapidly gone through once they had moved into assisted
suicide. Politically euthanasia is certainly off the map at the
moment, only assisted suicide is on the map and so the campaigners
who succeeded in Oregon have got a huge incentive to say to you
what they evidently did say to you, namely we have no further
territorial ambitions.
Q2014 Lord Joffe: So you can predict
the future with great confidence?
Professor Finnis: It is for everyone to judge.
These facts are available to all.
Q2015 Lord Joffe: May I just ask
a question or two of Dr Randall. I am just looking for an article
which you wrote which I thought was an admirable article. What
you did point out in this article, which is published, it is a
Danish publication, I cannot pronounce the name but I can show
it to you—
Dr Randall: Is it "Acta Anaesthesia Scandinavia"
Q2016 Lord Joffe: That is the one.
Dr Randall: That helps me to work out which
article it is.
Q2017 Lord Joffe: Effectively what
I understood the article to say is that it covers "double
effect". You point out that when determining intention in
relation to "double effect" there is great reliance
on the doctors and the integrity of the doctors. I think the wording
was "the public acceptance of the moral and legal distinction
between intending and foreseeing effects of treatment is based
on the trust and integrity of doctors. In return doctors have
to be worthy of that trust." I am wondering why much of the
opposition to this Bill has come from palliative care doctors
and others who say they do not trust other doctors and wonder
whether that would perhaps undermine to some extent your views
on the importance of integrity in differentiating between intention
and not.
Dr Randall: I have not said I do not trust other
doctors.
Q2018 Lord Joffe: I am not saying
that you have. I said other doctors who have come here to give
evidence have referred to their concern that other doctors will
simply wave patients through. They would take a very liberal view
and would not actually effectively enforce the safeguards that
are proposed in this Bill.
Dr Randall: I would not say that I do not trust
other doctors. What I would say is that doctors under this Bill,
as I described earlier, are being put in an exceedingly difficult
position by this Bill in the judgments that they are being asked
to make. I think it would be better, if society wants assisted
suicide and euthanasia to be legalised, to take doctors out of
it apart from establishing the diagnosis, the prognosis and the
treatment options for the prolongation of life and the relief
of suffering. I do not think it would be a good thing if society
legalised this. However, if society does want to legalise this,
I think it would be better to take doctors out of this altogether,
as in other countries they have taken nurses out of it. I would
take the doctors out of it apart from our medical role in the
diagnosis and treatment of the condition. That way you would not
have collateral effects on your doctor/patient relationship. You
would not have this problem of the elderly vulnerable people worrying
about what would happen to them when they were in care. Also,
I think this Bill, based on the figures Jim has given us, would
be difficult to enact because of the number of doctors who might
conscientiously object to taking part in it. It then becomes very
complicated because you have to find another consultant physician
and the other consultant physician has to be in the same speciality.
One wonders how this would work in practice. It would not be up
to the doctors who conscientiously object to make it work. I think
that the adverse effects of involving doctors outweigh any benefits.
It is not that I do not trust doctors. I think that it has an
adverse impact on the doctor/patient relationship. You do not
need us to do this.
Q2019 Lord Joffe: We went into this
quite carefully in Oregon where there was also considerable opposition
from many doctors, but it works over there because the law was
passed and doctors normally obey the law subject to their conscience.
Does it surprise you that it works in Oregon?
Dr Randall: I have not been to Oregon. I do
not know the people of Oregon. I have not lived in the culture
of Oregon and so I would not be able to say anything about what
I would expect or not expect of the people living in that culture
because unless I knew that culture I could not possibly comment
as to whether I was surprised or not.
2 [Bert Keizer, Dancing with Mister D (1996)] Back
3
[It was in fact 1993: see H.L. Paper 91-vii of 1992-93 (29 June
1993) e.g. p. 162, Q. 452.] Back
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