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

Examination of Witnesses (Questions 2043 - 2059)



  Q2043  Chairman: Good morning, Lord Walton. We have invited you to come. You were the chairman of a committee some 10 years ago that dealt with some at least of the issues with which we are concerned.. It was not a committee dealing with a particular bill, in the way that we are, and so there are distinctions, but with your background and experience the Committee felt it would be useful for you to have an opportunity to come along and give us such help as you feel able to do. As you know, the help will be transcribed and you will get an opportunity of correcting the transcript. The duly corrected transcript will be appended to our report and become public property, in the full sense, at that stage. Would you like to say something yourself to start with Lord Walton and then members of the Committee may have questions on which they would like your help.

  Lord Walton of Detchant: Yes. Thank you, my Lord Chairman. First of all, may I say at once that I wholly appreciate and understand the sincere and compassionate reasons why Lord Joffe has introduced this Bill. Of course I appreciate that it is likely to receive, in certain quarters, a great deal of support. I think the Bill itself has been very thoughtfully and very carefully drafted, incorporating a large number of safeguards which I believe are very important. Having said that, at the end of the day I feel I cannot support the Bill, if only because of a number of issues which we did handle in detail in the select committee I chaired (1993-1994). In particular, I would turn to clause 1, paragraph (2) of the Bill, in which it says, "`assisted dying' means the attending physician, at the patient's request, either providing the patient with the means to end the patient's life or if the patient is physically unable to do so ending the patient's life"—and I stress those last few words because, in my view, that can only be construed as deliberate, intentional killing. In other words, it does mean that in those circumstances it is, in my opinion, voluntary euthanasia. Having said that, of course I warmly endorse what is said in clause 15 of the Bill, that: "A patient suffering from a terminal illness shall be entitled to request and receive such medication as may be necessary to keep him free as far as possible from pain and distress." That, after all, is the motivation of the hospice movement in the UK, which is increasingly influential in the treatment of individuals with terminal illness of all kinds. Hospice care is not just delivered in the buildings called hospices, but it is a kind of philosophy of care which extends out into the community and which is practised by many general practitioners—perhaps not as widespread or effectively as it might be, but I believe that is increasing. Of course organisations such as Marie Curie Cancer Care and Macmillan Cancer Care make a major contribution in that field. Having made those points about the Bill, I would like briefly to quote one or two things which were said in the report of the committee which I chaired in 1994. First, we totally accepted the concept of informed consent to medical treatment but, equally, we endorsed the right of a competent patient to refuse consent to any medical treatment, even if that ultimately resulted in death. We went on to say, however, that the right to refuse medical treatment is far removed from the right to request assistance in dying. We spent a long time considering the very strongly held and sincerely expressed views of those witnesses who have advocated voluntary euthanasia. Many of us, including myself, had experience of relatives or friends whose dying days or weeks were less than peaceful or uplifting or whose final stages of life were so disfigured that the loved ones seemed already lost to us and were simply weary of life. We made a number of other points of that type but went on to say that, ultimately, we did not believe that these arguments were sufficient reason to weaken society's prohibition of intentional killing, a prohibition which is the cornerstone of law and of social relationships. It protects each one of us impartially, embodying the belief that all are equal. We did not wish that protection to be diminished and therefore recommended that there should be no change in the law to permit euthanasia or physician-assisted suicide. One of our reasons was because we did not think it was possible to set secure limits on voluntary euthanasia, because to legalise it was a discreet step which need have, in the view of certain witnesses, no other consequences, but in fact it would be next to impossible to ensure that all acts of euthanasia were truly voluntarily and that any liberalisation of the law would not be abused. We were concerned over the possible erosion of any such legislation, whether by design or inadvertence, or by the human tendency to test the limits of any regulation—as has clearly happened for example, in relation to the Abortion Act. There are some of the things we dealt with. We went on to discuss the concept of double effect, upon which I would be very happy to expand at a little later stage should your lordships so wish. I would like to add at this stage a number of other important points. First, when, I understand, the former Chairman of the Ethical Committee of the Royal College of Physicians gave evidence, I believe he, in a personal capacity, is supportive of the Bill, but I feel I ought to make the point that the President of the Royal College spoke to me only a couple of days ago and made it clear that the college is totally neutral on this issue: it is not expressing a view but leaves it to Parliament to decide. I would also add that I and the members of my committee were gravely concerned, in the great majority, by what we found in Holland. In Holland, when we visited there, we found that more than 1,200 individuals were subjected to voluntary euthanasia each year at their consent, under certain conditions, but over 1,000 were subjected to non-voluntary euthanasia because they were neither competent to withhold or to give consent. There were a number of cases which seemed to me to stretch credence far beyond what was reasonable: the Chabot case, in particular, where a lady in her fifties who was physically fit, whose son had died from leukaemia and whose daughter had committed suicide, claimed to be intolerably depressed and not to have responded to medication. She requested euthanasia and it was granted. In the British Medical Journal of just a few days ago, 8 January, there is quite an important article. Of course the Dutch did strengthen their law and, indeed, convicted a general practitioner in 2002 of helping his 86-year old patient to die, even though the patient was not technically ill but was obsessed with his physical decline and hopeless existence; however, the Royal Dutch Medical Association say that doctors can help patients who ask for help to die, even though they may not be ill but suffering through living. This is following a three-year inquiry that they have conducted. I think they are in a situation which is going far beyond what I would regard as being acceptable. Of course, you are aware, my lords, of the case in the Northern Territories of Australia, where an individual patient suffering from cancer, believing that she had terminal cancer, was subjected to euthanasia, though the post-mortem showed that her cancer had been effectively treated. I am wholly aware that public opinion and the view of certain members of the committee which I chaired has changed over the years. I know full well that Lady Warnock, for instance, has expressed, a totally different view, as have Lady Jay and Lady Flather. Having said that, I was frankly surprised by Lady Warnock's comments to the effect that if she became "a major burden upon her family"—and I am quoting what she has said publicly—she might well consider requesting assisted suicide because of feeling that she was a burden. That is, in my view, not a very valid argument—and I have told her this, so I am not quoting anything which is contrary to what I have said to her personally—because we in my select committee in 1994 were concerned that vulnerable people, the elderly, lonely, sick or distressed, would feel pressure, whether real or imagined, to request early death. That was one of the things that did give us considerable concern. I know there are many people who criticise the concept of a slippery slope, but I, as I said before, believe that, if this Bill were to be passed, it would in the first instance set down very strict criteria but I think those criteria might well be progressively eroded with the passage of time, leading the widespread practice of voluntary euthanasia. I would only add that there is of course quite an important article in this morning's Times by the Archbishop of Canterbury on this issue. He does in fact express the view on behalf of the Church that the Church would not wish to see deliberate killing, whether by euthanasia or whether by assisted suicide, and he goes on not only to promote the concept of double effect but to endorse it by saying, as we did in our report, that in those who are in terminal illness and who are being offered the principles of palliative care, it is perfectly reasonable for a doctor, in order to relieve pain, distress and suffering, to give such doses of medication to relieve those symptoms which may have—not invariably but may have—the secondary consequence of shortening life. This is totally acceptable, in my opinion, and has been accepted for years in medical practice and within the law. I admit certain philosophers regard this as being a hypocritical concept but I believe it has been practised for years sensibly and effectively. Those, my lords, are the preliminary comments I would like you to make.

  Q2044  Chairman: Before I invite my colleagues to ask you questions, you mentioned the two branches of the central section of this Bill, one making it legal for a doctor to provide the means for a person to end their own life, and the second—although it happens, I think, to be first—the possibility of a doctor, in the case where the patient could not self- administer, doing the necessary procedure himself or herself to bring the patient's life to an end. Do you distinguish in any way between these?

  Lord Walton of Detchant: Yes, I do. I would not be as bitterly opposed to the first concept as I am to the second. I am totally opposed to the concept of deliberate and intentional killing.

  Q2045  Baroness Jay of Paddington: Thank you, Chairman. I am grateful to you, Lord Walton, for my membership of your committee 10 years ago. As you rightly say, I have slightly moved my opinions, as a result, I think, of what has happened in the last 10 years. I wonder if I could ask you about some of the things which have happened, which are not to do with personal experience, in the way you have described Lady Warnock's shift in her views, but are about the evidence that we now see of the way in which some laws which are related to the proposals which Lord Joffe has made have worked effectively and within the context, as you say, of secure limits, in, for example, Oregon, which we have very recently visited. And also what you feel about the fact that, although I was one of those who were a little concerned about the adamant position we took on this even 10 years ago about advanced directives or advanced directions (as we now call them)—and I spoke about that in the debate we had on our report—it has now become government policy during this last period to adopt a position in which an advanced direction is part of a bill, which we hope will become a statute, which is now before us. Thirdly, I think one of the things we spoke about and which we were very concerned about was the nature of any proposal in this area on the doctor/patient relationship—and this was something which I remember you feeling very concerned about from your own clinical practice. Again, I think one of the things which has been, shall I say, "reassuring" about the evidence which people have given to us, both of their own experience and of their study of what has happened in other countries, has been that, contrary to what one might expect, the doctor/patient relationship is often said to have improved as a result of these changes in the law, because of the openness of discussion which can take place, etcetera. I wonder what your reflections are on those things which have changed in those particular ways.

  Lord Walton of Detchant: I think that last point is extraordinarily valid because the days of "Doctor's orders" are long past and the practice of medicine is a partnership between the doctor and the patient, in which it is the doctor's responsibility and duty to indicate to the patient what he or she regards as being the best course of action to follow in the management of their condition, but it is up to the patient to decide whether or not to accept that advice. Now, of course, that only can apply to the competent patient. In relation to the incompetent patient, of course, this issue is being considered now by this House in relation to the Mental Capacity Bill, so I do not think I need expand on that, except to say that, as you remember, we in our committee strongly supported the concept of advanced directives but did not at that time wish to make them legally binding.

  Q2046  Baroness Jay of Paddington: Exactly.

  Lord Walton of Detchant: The reason why we did not wish to do so was because we recognised that someone might sign an advanced directive—and I have done so personally and it is lodged with my GP—but then might forget or not take steps to update its terms and that might not take account of developments in medical science, in medical practice, which had taken place since the advanced directive was originally signed and that therefore the position might have changed. That was one of the reasons why we did not wish to make them legally binding but, of course, since that time they have become virtually binding in common law and there have been a number of notable cases reported where in common law the advanced directive has been regarded as being binding. So I think that position has changed. Does that answer your questions?

  Q2047  Baroness Jay of Paddington: I was only going to ask, slightly more generally—and it may not be a specific enough question for you to want to respond—whether you do feel that some of the broader experience we have seen empirically in the last 10 years from other countries has in any way altered your view, as it certainly, I have to say, has altered mine?

  Lord Walton of Detchant: I understand that. I appreciate that entirely. No, I am not reassured by what I have seen happening in Holland. I have no personal experience of what has happened in Oregon but I am concerned, as I have said, about some of the cases that have been dealt with in the Northern Territories in Australia. Whether it happened or not, I do not know, but I am told that the federal authorities in Australia were thinking of overturning that Bill. But it has not, so far as I know, been overturned.

  Q2048  Baroness Finlay of Llandaff: May I say for the record, from those involved in palliative care, that we owe a great deal to your report, where you commended the development of services, although we recognise in the evidence that we have had on this Committee that services are still dramatically under-developed in many parts of the country. I wonder if I could ask you a little bit about the doctor/patient relationship?

  Lord Walton of Detchant: Yes.

  Q2049  Baroness Finlay of Llandaff: I wonder if you feel it is true that we have seen an improvement in communication between doctors and patients in this country in the last 10 years, in terms of information about their diagnosis, prognosis, what to expect, possible side-effects and so on, where of course we have not had any change in the law, and, therefore, perhaps globally, or in the western European world, certainly in the northern countries, there has been an improvement in communication skills which is not related to a change in the law but has been for other pressures from within medicine.

  Lord Walton of Detchant: There is no doubt at all, in my view, that that has happened. I now speak as a former chairman of the Education Committee of the General Medical Council and subsequently its president. Twenty-five years ago we made it clear that one of the most important things that had to be raised in the education of medical students was the development of communication skills and an increased understanding of the wishes and needs of their patients, including skills in counselling. I believe that the doctor/patient relationship has, in consequence of that, improved very greatly in the UK. Vocational training for general practitioners has helped and post-graduate training for people working in other specialities has also helped. A great deal of effort has been put into that over the years. So I agree. And I think it is salutary that whenever questionnaires have been put to the public about the individuals in society whom they trust, doctors and nurses have always come at the head of the list—certainly much higher in the list than lawyers and certainly a great deal higher than politicians.

  Q2050  Baroness Finlay of Llandaff: We have heard from the Association of Palliative Medicine that the consultants in palliative medicine are very strongly opposed to any change in the law, with 93 per cent opposing a change in the law towards euthanasia—92.6 per cent in fact—but three-quarters of them have had discussions with patients who have asked for euthanasia. I wonder whether you feel it is fair to conclude that this openness in communication means that patients are now able to discuss the future and how it may lie, and can use that question as an opener—indeed, we have heard as well that in Oregon people would use questions about whether they should consider euthanasia or whatever as a way of flagging up their distress—and that one of the things that specialist palliative care has been able to do is to help patients unravel the different components of their distress to try to improve their quality of life for however long they have it.

  Lord Walton of Detchant: I think that is, again, an important development. I have had personal experience, though not recently, of being in a position to discuss the whole question of euthanasia with patients suffering from terminal illnesses, particularly in the field of neuro-muscular disease; for example, motor-neurone disease. I know full well that the Bill includes a provision for someone who may have requested assisted suicide to retract that request. Interestingly, in the correspondence that I have received on the Mental Capacity Bill, I have had three or four quite moving letters, one from a lady, whom I shall not name but who gave evidence to our select committee and whom I have met on many other occasions, who some years ago requested assisted suicide (she was not capable of killing herself) because she felt her life was so infinitely distressing that she did not wish to continue, and now she is absolutely delighted that that did not happen. Hard cases make bad law, so I do not think that is an invariable experiance, but I believe it is right that some people do think about it very seriously but are then persuaded that there are satisfactory alternatives.

  Q2051  Baroness Finlay of Llandaff: I should say, as a clinician, that I completely concur. I myself have had patients who have lived not only unexpectedly long in terms of months but even in terms of years after having initially been asking quite clearly for euthanasia, who then have been subsequently extremely glad. Particularly younger people who were young parents. The last matter I would like to address with you is the issue of double effect, which in your report you helpfully mapped out and that established a definition for people. I wonder if you would agree that it has perhaps been misinterpreted at times because, whatever you give to a patient, if the patient is dying there will always be a last dose of drugs, just as there may have been a last cup of tea or a last breakfast, but it is difficult to prove that that last dose of drugs did not kill the patient, just as it would seem absurd to try to prove that a cup of tea, unless the patient choked on it, killed the patient. But it is distressing for professionals, if they go to give a patient an additional dose of analgesia, turn the patient, and the patient has died half an hour later, and it is easy for a family and others to misinterpret that as having been "assistance" to die.

  Lord Walton of Detchant: I appreciate that this concept is a very controversial one. As I say, some philosophers regard it as being hypocritical, but we said in our report that the adequate relief of pain and suffering in terminally ill patients depends on doctors being able to do all that is necessary and possible. In many cases this would mean the use of opiates or sedative drugs in increasing doses. In some cases patients may in consequence die sooner than they otherwise would have done, but this is not, in our view—and that is in our report—a reason for withholding treatment that would give relief, as long as the doctor acts in accordance with responsible medical practice with the objective of relieving pain or distress and with no intention to kill. One other thing which I think I ought to say is that there have been a number of cases or examples in the press of doctors saying that they have practised euthanasia. In my opinion, the very great majority of them have been practising double effect and not euthanasia. I think this is something which has been widely misconstrued. As we, again, say in our report, if this intention is the relief of pain and distress and the treatment given is appropriate, then the possible double effect should be no obstacle to such treatment being given. Some may suggest that intention is not readily ascertainable, but juries are asked every day to assess intention in all kinds of cases and could do so in respect of double effect if, in a particular instance, there was any reason to suspect that the doctor's primary intention was to kill the patient rather than to relieve pain and suffering. In our report we quoted the notable case of Dr Bodkin Adams, who was accused of murder. A distinguished physician called to testify in that case asserted that a particular dose of morphine must certainly kill, only to be told that the patient had on several occasions had the same dose before and had survived. That was the reason why that case collapsed. It was clear evidence that Dr Bodkin Adams was practising double effect.

  Baroness Finlay of Llandaff: Today's experience lays that out. I would like to follow it up, for the record. We now, in the light of recent research, do not have any evidence that giving opioids at doses to relieve pain does kill patients but the myths perpetuate. Thank you.

  Q2052  Baroness Hayman: Perhaps I could follow that up, my Lord Chairman, because I know that this issue of double effect is very controversial, and take one example and ask Lord Walton about where he sees distinctions arising. He was talking, in relation to double effect, about intent and the intent in the doctor's mind and the significance of that. I think you said earlier that the provision of assistance in suicide was "far removed" from accepting a patient's refusal to take life-saving treatment. I can absolutely understand that is true from a doctor's point of view; I have difficulty with the patient's perspective. If you have a patient who is terminally ill and perhaps—and we know the difficulties of predicting length of life—assumed to be within the last couple of months on a doctor's prognosis, I wrestle with the difficulty of whether there is a clear distinction between the patient who happens to be on a life support machine and able to make their views known, who happens to need medication which maintains their life, who, it is clear, both in case law and in medical ethics has the right to take a decision which speeds the end of their life, and the patient who, because their individual medical circumstances are different (they cannot swallow, they are not on a life support machine, they are not in receipt of medicine which they can refuse), is left with, as I understand it, the only alternative being to starve themselves to death. Which is not a happy scenario for many people. I just ask whether, from the patient's perspective, in these areas there is such a clear distinction? Now, that is quite separate from the wider effects that there be in other areas.

  Lord Walton of Detchant: So far as that last issue is concerned, we in the select committee were set up because of two notable cases. The first was the case of a Dr Cox. He was a Guildford rheumatologist who had a patient who was in the terminal stages of rheumatoid arthritis who was crying out in intolerable pain and was asking the doctor continually to help her to end her life. He claimed that massive doses of morphine and other opiates had failed to relieve her pain and, in the end, I think almost in panic, he gave an injection of potassium chloride into her intravenous drip, which stopped her heart instantly. Of course, he was accused of murder, but the charge was ultimately amended to one of attempted murder. Dr Cox had not fully understood nor used the principle of double effect because the patient had not been adequately sedated. If adequate sedation had been given in addition to the opiates, then I believe the situation might well not have arisen. The second case, of course, was that of Tony Bland, the boy who was crushed in the Hillsborough Stadium disaster, who entered for four years a persistent or permanent vegetative state: his heart was working, he was breathing spontaneously, but all the evidence showed that he had no brain cortical activity. He was unable to swallow and was being fed by a gastric tube. He was not sentient. I would totally oppose any suggestion that any patient who, however demented, still had some sentient capacity could ever be starved to death. I think that is intolerable and quite contrary to medical practice. But for a patient in the permanent vegetative state the issue is different. We had a conflict of opinion between the doctors and nurses on the issue of whether tube feeding was medical treatment. The doctors believed that any treatment which required invasion of the human body by, for instance, inserting a gastric tube, was medical treatment, but the nurses said that food and fluid, however given, was an absolute human right. In the end, we concluded that the same outcome in Tony Bland's case would have occurred if the antibiotics had been stopped because we said there was no obligation upon the medical team to continue with any form of treatment which added nothing to the wellbeing of the individual as a person. In the end, of course, the case went to the High Court, as you are aware, and eventually up to the House of Lords, and his feeding tube was removed and he died peacefully about three weeks later. I hope that answers your questions.

  Q2053  Baroness Hayman: It does and it does not. It is tremendously helpful in some areas. But I am trying to get to the quintessential case, where we are not talking about someone who is in a persistent vegetative state, we are not talking about someone who could have been helped by better palliative care, and trying to deal with the case where the palliative care has been of the highest standard. Indeed, in Oregon, a lot of the evidence was that pain in itself was not the major issue for a lot of people. It is the individual who assesses their own situation as being intolerably painful, distressing for them. It is the individual who has had the optimum palliative care, who is completely sentient, who knows exactly what they want, who by one throw of the dice (in terms of their medical condition) is able to influence the time they are there, so that they speed it up because they refuse treatment, and the other one who, by circumstances of their medical situation, would need assistance from a physician and does not get it.

  Lord Walton of Detchant: I totally sympathise with your view on the second case. In relation to the first case, as I said before, any patient who is competent is wholly entitled to refuse treatment of any kind, even if that results in death. That is perfectly acceptable and something with which I would totally agree. In the second case, I sympathise with the view that that patient should be given assistance to kill themselves, but, on the other hand, I cannot accept the view that in that situation a doctor would be required, if necessary, to give a lethal injection. That, in my view, stretches the principles of medical care and medical treatment beyond what is, in my opinion, reasonable, and I am concerned that, if that were to be accepted under law, if this Bill became law, inevitably we would see the same continual erosion as has happened, for instance, in the Abortion Act and certain other pieces of legislation. That is my personal concern. I appreciate that others may take a different view.

  Q2054  Lord Patel: Your comment about the shift in the medical profession I too find rather interesting. On a personal basis, a member of the Ethics Committee of the Royal College of Physicians of London expressed a view in support, but the college has come out as a neutral stand.

  Lord Walton of Detchant: Yes.

  Q2055  Lord Patel: A stand that is backed also by the Academy of Medical Oncologists.

  Lord Walton of Detchant: Yes.

  Q2056  Lord Patel: And the Royal College of General Practitioners.

  Lord Walton of Detchant: Yes.

  Q2057  Lord Patel: And in fact the GMC also has a neutral stand.

  Lord Walton of Detchant: Yes.

  Q2058  Lord Patel: Does that surprise you?

  Lord Walton of Detchant: No, it does not. Let's take the Royal College of Physicians first, because I had quite a discussion with the President on this issue. She said, if they were going to have to produce a formal opinion on the Bill, they would be required by their statutes to undertake an extensive inquiry to involve fellows of the college, members of the college, and this was a process that would take some considerable period of time. After careful consideration, the council of the college decided to express a neutral opinion, leaving it to the good sense of Parliament to come to a decision.

  Q2059  Lord Patel: You do not think this demonstrated the recognition that there might be a shift in the profession?

  Lord Walton of Detchant: I think it does demonstrate the view that there has been in parts of the profession a shift in opinion. But I still believe myself that, if there were to be a properly designed questionnaire which set out the various options to the profession as a whole, the majority would not wish to see this Bill implemented. Many of the questionnaire exercises that have been undertaken in the past have really been, in my view, extremely flawed. One questionnaire some years ago asked: "Would you wish to request help to have a gentle easy death?" Well, who wouldn't? That was taken by certain people to imply that people were supporting euthanasia. Well, that was not the intention of the great majority who answered that questionnaire.

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