Examination of Witnesses (Questions 2020
- 2039)
TUESDAY 18 JANUARY 2005
MS MICHELE
WATES, DR
JIM GILBERT,
PROFESSOR JOHN
FINNIS and DR
FIONA RANDALL
Q2020 Lord Joffe: But there are doctors
here who support this Bill and who would be prepared to implement
it.
Dr Randall: I would assume that there are. What
I am saying to you is that it becomes complicated if the doctor
that is the patient's attending physician wants to conscientiously
object and then the patient has to be passed to another doctor
who then becomes the attending physician, so the patient's care
by the definition of the Bill then has to be passed to another
doctor and then you have to find a consultant physician in the
right speciality who is happy to do it. It could become rather
an onerous process. My main concern about the Bill is the effect
of the doctor/patient relationship and the position it puts doctors
in, which I think is unnecessary if society in the end decides
that it is in the interests of the majority of its members to
legalise these processes.
Dr Gilbert: Could I add one further reason why
it seems to me that many doctors at and arguably those doctors
most closely up against these clinical scenarios particularly
do not want to be involved in this process and it is this. Agreeing
with a patient that it would be best for them to end their lives
has been referred to as a psychological push from the bridge.
I recognise not all doctors see it that way, but I think that
is a useful concept. The mixture of roles and the moral judgment
that is expected of doctors perhaps gives that push from the bridge
psychologically greater force than were it to be a technician
in such a role, clearly defined as purely doing that and making
no moral judgment about whether it was the right thing for the
patient.
Q2021 Lord Joffe: There were doctors
who appeared before us this morning who actually said that in
their view many doctors would see it as important to remain involved
with their patient's right to the end and not to abandon them.
Dr Gilbert: I was impressed by the question
asked by Lord McColl about on what grounds a doctor might object
to being excluded from the actual process of administering medication
and I did not hear an answer to that.
Q2022 Lord Joffe: Are you taking
a different view from Dr Randall who does not want doctors involved
at all?
Dr Gilbert: No.
Q2023 Chairman: Not involved in the
actual process of assisting the suicide or the dying.
Dr Gilbert: Indeed. I am taking precisely the
same view. I do not know where the misunderstanding has arisen.
Q2024 Lord Joffe: Let us get it clear.
Do you accept that the doctor could give the prescription for
the drugs?
Dr Gilbert: Certainly the doctor could, although
I think that would be wrong as well. I think in doing so it entails
a moral judgment that agrees with the patient that their life
is no longer worth living. I think that may be one of the reasons
why we see this disparity between those people who profess that
they wish their lives to be ended and the very few people who
actively take steps to commit suicide despite the availability
of medication. I think they need that psychological "push
from the bridge" and that moral judgment, which is often
expected of doctors, to agree with them that the best thing overall
would be for them to end their lives. We could achieve clarity
about that by excluding doctors from the process.
Q2025 Lord Joffe: I think there is
a misunderstanding as to the role of the doctor. The role of the
doctor is to ensure that the various safeguards in the Bill have
been complied with. It is not to form a judgment on whether it
is a wise decision or an unwise decision of the patient.
Dr Gilbert: If you will forgive me, that seems
to run counter to me to much of the evidence this morning which
seemed to include doctors looking after patients towards the end
of life as the final thing that they could do for the patient.
I think that was positively described. What are they doing there?
Simply a legalistic assessment of whether the safeguards have
been met.
Q2026 Chairman: It is perfectly plain
that what the Bill envisages is not only that the doctor will
see that the safeguards are in place but also, assuming the safeguards
are in place, he or she will either, as in the case figured in
the preamble, actually do the necessary procedure to end a patient's
life or will provide the necessary medication for the patient
to end his or her life.
Dr Gilbert: Yes. It seems to me there could
not be a clearer enactment of agreement that that would be the
best thing for that patient than co-operating in that process.
Q2027 Chairman: That might not be
so because if a doctor says to me that I should have a life prolonging
treatment and I do not want to have it and I say no, the doctor
is then precluded from giving me the treatment, although he or
she does not believe that my decision is the right one and thinks
I should have accepted their advice. The mere fact is that the
doctor who does carry out the patient's wishes in this particular
case would not necessarily imply that the doctor agrees with the
patient's view of the matter. He or she would be simply complying
with the patient's request made in accordance with the rules and
so on.
Dr Gilbert: But actively doing so.
Q2028 Chairman: Yes, actively agreeing
or actively accepting the patient's request. You may say that
no doctor would want to do that unless he or she agreed and the
doctor cannot be obliged to do it, the doctor may have objections
to doing it. I think you are saying that for the doctor to do
it would imply in your judgment that the doctor had agreed that
it was the best course open to the patient in the circumstances.
All I am saying to you is that it does not necessarily follow,
although it might be a difficult position for the doctor to be
in if he was injecting somebody to end their lives at a time when
he thought it was not a good thing to do.
Dr Gilbert: Indeed.
Dr Randall: There is a parallel distinction
here in other parts of health care. A patient can always refuse
treatment if the patient does not want it. I know there is legal
argument about it at the moment, but currently patients cannot
require a doctor to perform a treatment that the doctor really
feels is going to result in overwhelming harm and not benefit.
So the parallel is with, say, a patient requesting a surgeon to
do an operation where the surgeon says the risks of it far outweigh
any possible benefits. The surgeon has the power to refuse and
the responsibility to refuse.
Q2029 Chairman: He would not incur
the responsibility of carrying out the operation unless he thought
in the circumstances it was the right thing for him to do.
Dr Randall: Yes. What this Bill is about is
doctors being asked to do something at the request of the patient.
It is not being asked for doctors to stand away and refrain from
treating the patient, it is asking the doctors to do something.
So it is about the patient having a positive right to require
that from the health care profession who then have a duty. If
the patient has a right to physician assisted suicide or euthanasia
some part of society has a duty to provide it and this Bill gives
the duty to doctors.
Q2030 Chairman: I think I am right
in understanding Dr Gilbert to say that he would assume that a
doctor would not carry out one of these procedures unless the
doctor agreed that it was appropriate in the circumstance.
Dr Gilbert: That is exactly my position. Otherwise,
while providing a patient with a lethal prescription or indeed
administering that lethal prescription, he would be at one and
the same time saying, "This is something that I think is
wrong. I still value your life; I think you should still value
your life."
Q2031 Chairman: If the doctor has
made a conscientious objection it would not be happening in any
case with that doctor. But the case that you are figuring is the
case of a doctor who has not got a conscientious objection against
doing it at all but who in the particular circumstances of the
case thought it was not an appropriate request from the patient
for various reasons. Although the legal background and the legal
safeguards had been fulfilled, the doctor still thought that it
was not an appropriate course to take in that situation. You say
that if he then carries it out it is to be assumed that he agrees
that it is the appropriate course in the circumstance. Is that
right?
Dr Gilbert: That is right.
Professor Finnis: It might help to inject the
concept which is right through the Mental Capacity Bill and through
the medical law which underlies that. When a doctor does anything
it has to be in the patient's best interest. Rather than the word
"appropriate", wrong or right, I think what Jim Gilbert
is saying is that by doing something the doctor is ratifying that
as "in my judgment it is in the patient's best interest".
Q2032 Chairman: There is nothing
in this Bill about the patient's best interest.
Dr Gilbert: I accept that. I think that is what
he is saying.
Q2033 Chairman: I think it is possible
to put it more generally, as Dr Gilbert has done, and say that
if a doctor is doing something on account of the patient asking
the doctor, he thinks it is at least a reasonable thing to do
in the circumstances and if he disagrees with a patient's assessment
of the situation he ought not to do it. I think that is what you
were saying.
Dr Gilbert: That is right. Can I just come back
once more from the perspective of the patient in this because
it may well be that the patient is still uncertain and is still
in some sense testing out whether this is right, this jumble of
views, one of which is that I am being a burden, one of which
is that I am suffering and so on. If a doctor is prepared to enforce
or ratify that view then that is what is perhaps clumsily referred
to as the psychological push from the bridge. If it comes from
a doctor it carries a different weight in my estimation, particularly
a doctor with long association, than it would if it came from
a technician.
Q2034 Chairman: Ms Wates, I think
you wanted to add something. You have been extremely patient in
listening to others. You must have a chance to give your point
of view on these matters.
Ms Wates: It seems to me there are several places
in the Bill where it really is very subjective from the way that
the Bill is worded what is meant, and there is the whole question
of whether the patient's judgment is impaired. The doctor must
make a decision about that because if he considers it is wrong
then he should bring in a psychiatric opinion.
Q2035 Chairman: The assumption of
the Bill is that it only applies in the case of a fully competent
patient and if there is any doubt about that it has to be investigated.
I think that is the basis on which the Bill proceeds.
Ms Wates: Yes, but a sound judgment is a well-informed
judgment. I suppose he might judge that the patient was competent
but not well informed.
Q2036 Chairman: As I understand the
rules, the doctor is not supposed to indulge in any procedures
or accept a decision not to proceed with procedures without giving
full information to the patient of the various options available
and the consequences in the doctor's view of the various options
that are open. It is part of the doctor's informed concept which
is fundamental to the doctor/patient relationship in this country
now. The doctor would be obliged to explain in some detail exactly
what the situation was if the patient did ask for this particular
treatment.
Ms Wates: Surely the doctor's point of view
on the patient's situation would make a huge difference to the
information that he presented and the weight that he put on the
information. You cannot get away from that.
Q2037 Lord McColl of Dulwich: Professor
Finnis, vis-a"-vis the question in Oregon of this leading
to euthanasia, is it your understanding that the Euthanasia Society
does see this Bill as a precursor to euthanasia?
Professor Finnis: You mean in this country?
Q2038 Lord McColl of Dulwich: Yes.
The other question is dealing with the question of excluding doctors
and nurses from taking part in this oral euthanasia. Some of us
found it quite a chilling experience when we visited Holland during
the last Select Committee on euthanasia because we were particularly
anxious to know how the doctors felt about doing euthanasia and
we asked one particular doctor and he said, "It was terrible.
We agonised all day." But he said the second case was much
easier and the third was "a piece of cake". We found
that rather chilling.
Professor Finnis: I have not investigated the
present attitudes of the Voluntary Euthanasia Society in this
country. I have made no attempt whatsoever to keep track of its
policies. I do know that in the past prominent members of it have
said more or less openly that they regarded assisted suicide as
a step on the way to euthanasia, and that is certainly the case
in the United States as well, though again I have not made a study
of particular policies of particular groups. I have discussed
these matters extensively with leading supporters of the general
movement such as Professor Ronald Dworkin with whom I have given
seminars for 20 years and debated the matter in public as I have
described. There is no ambiguity about the reluctance to take
it all in one bite and so Professor Dworkin's books only speak
about assisted suicide and leave in shadow what all the principles
and arguments in the book move towards, which is also euthanasia
for the competent and to some extent for the incompetent. I think
it would be very surprising to me if it could be established that
the policies of the Voluntary Euthanasia Society did not extend
to euthanasia as a next step in a process which they regard as
one of liberation—and I understand their arguments.
Q2039 Baroness Finlay of Llandaff:
This morning we heard from a doctor, who is not a consultant in
palliative medicine and therefore not on the specialist register,
her view of her role in providing the palliative care. She also
spoke about the questionnaire that you referred to, Dr Gilbert,
and in it she outlined that indeed in palliative medicine many
doctors have discussions with patients about a desire to die and
sometimes those discussions go on and they may be discussions
that persist, and yet we heard from Baroness Greengross that she
felt that there was a need to campaign very strongly for open
communication with patients. I wonder how you marry up the openness
of the questions that are on the questionnaire with the fairly
solid block of resistance from those dealing with these patients
all the time that put a doctor, such as Dr Dacombe, in a very
small minority in welcoming any moves in this direction.
Dr Gilbert: I think that is very interesting.
There is a clear basis from the survey for recognising that these
sorts of issues about wishing for an earlier death are not terribly
uncommon in palliative care practice. Certainly my own experience
and that of my colleagues in the south-west that I know well would
be that such matters do have an opportunity to be openly discussed
and that one tries to concentrate on what are the distressing
issues for that patient and those close to them at that time.
One of the things that might puzzle outsiders as a result of the
data is how could one understand a position where there is such
overwhelming opposition to such permissive legislation as we are
discussing today and yet this openness in discussing issues around
death and dying. All I can do is extrapolate from my own experience
that although many people want to talk about the timing and the
nature of their death, my experience is that it does not put me
as a clinical practitioner in a difficult position at all to have
people discuss these issues and I do not feel disempowered in
a way that you might expect me to fell, or restricted by the current
laws of this country.
Dr Randall: My experience is of patients expressing
the fact that they are fed up with this existence, they feel a
burden and wish it was all over and that does give you the opportunity
to ask if there is anything in particular that is the source of
this distress and, where possible, to address that. I think a
lot of the satisfaction one gets from one's job is what can we
alleviate from this knowing that it is part of the human condition
and there is no way one is going to be able to alleviate all ills.
It is very interesting that so many of the people caring for dying
patients are opposed to legalising assisted suicide and euthanasia
given that we are the people who will be having most of these
discussions with patients.
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