Examination of Witnesses (Questions 2100
THURSDAY 20 JANUARY 2005
QC and MR DAVID
Q2100 Baroness Thomas of Walliswood:
I also am aware of that.
Lord Goldsmith: I think the whole issue of how
far the courts can go is a very interesting and important jurisprudential
and political question as well. The courts plainly do take account
in different ways of changing conditions, social, medical, scientific
conditions in different ways, but the courts also operate within
the primacy of the law which is laid down by Parliament, and whilst
the courts have had to grapple with, so it seems to me, the issues
of refusal of treatment as medical technology and facilities become
more and more advanced, they have sought to do it always by reference
to clear existing principles, such as the right of self-determination
and the issues in relation to capacity of the individual. I think
to some extent I would probably leave it to others to say whether
you can discern a trend of movement by the courts generally one
way or another. For the purposes of the Bill, it seems to me important
just to recognise that the law which Parliament has laid down
in the Suicide Act will still remain the law, however medical
conditions change, and the law which the courts will need to apply.
Q2101 Lord McColl of Dulwich: Does
the last page, paragraph 34, of your very helpful written evidence
mean that the state has an obligation to prevent suicide of a
prisoner by some act of a process like hanging but no obligation
to prevent him committing suicide by refusing nutrition and hydration?
Lord Goldsmith: I will ask Mr Perry to answer
Mr Perry: That is correct. The position is that
the provision of treatment involves an invasion of the individual's
bodily integrity, and the law respects self-determination in that
respect. If it were not to respect it, then the provision of treatment
would amount to an assault or trespass. However, where there is
an individual in prison who would seek to commit suicide, the
state is under an obligation to ensure that they are not permitted
to take steps to do an act whereby they take their own life.
Q2102 Lord McColl of Dulwich: So
nutrition and hydration is regarded as treatment?
Mr Perry: Yes.
Lord McColl of Dulwich: So he can commit
suicide in a prolonged painful and uncomfortable way but not in
a quick way?
Q2103 Chairman: Is it right to say
that a prisoner is entitled to refuse food or drink?
Mr Perry: Yes.
Q2104 Chairman: But the authorities
are under a responsibility to take all reasonable care to ensure
that there are no means presented to a person in custody by which
he or she would be able to kill themselves. I have a feeling that,
in fact, I was a party to the case you referred to in paragraph
32. I am not absolutely certain of that, but I am very familiar
with that line of authority. I think it is the case that there
is a general rule of that kind in relation to people in the care
of the state, that, for example, a thing on which it would be
easy to hang a rope, or providing a rope, or something of that
sort, would be regarded as a breach of duty, whereas the state
is not obliged to force a person to eat or drink if they decide
that they do not want it?
Lord Goldsmith: May I add one point, because
I know Lord McColl used the expression "commit suicide".
It goes back to what I said before, that the law would not regard
somebody who refuses to do something as committing suicide and,
therefore, someone who does not take steps to force them to eat
or force them to take treatment is not regarded as aiding or abetting
suicide. If somebody takes a positive act by hanging himself or
whatever else it may be, then that would be a suicide and people
who assist with that by an act would be in a different category.
The law has a tight definition.
Q2105 Lord Taverne: How far has the
law changed in one respect? It used to be the practice for Home
Secretary's to force the prisoners who went on hunger strike,
and it was the Home Secretary at the time who decided that that
should no longer be done. The Bobby Sands case is an obvious one.
Would the Home secretary now be in breach of the law if they went
for force feeding?
Lord Goldsmith: Yes, unless the person who was
refusing food was not competent to take that decision. There is
certainly at least one court decision where the court has authorised
force feeding in circumstances where the view was taken by a judge
that the individual was not competent to take a decision because
of the medical condition from which he was suffering, to be fair,
evidenced, I think, to some extent by what he was doing in relation
to force feeding. This was Ian Brady.
Q2106 Baroness Hayman: It is in a
sense a circular argument, is it not?
Lord Goldsmith: Yes. The court reached a conclusion
on all the evidence that he was not competent.
Q2107 Baroness Hayman: But he was
not sectioned under the Mental Health Act?
Mr Perry: He was detained as a convicted murderer,
but he was being detained in a secure psychiatric hospital.
Q2108 Chairman: It is probably not
a very fair question for me to ask, but what is the underlying
principle that requires due care to be taken, as, for example,
in Reeves' case?
Lord Goldsmith: It is not a fair question.
Q2109 Chairman: I readily acknowledge
Lord Goldsmith: With diffidence, I would suggest
that the way we would put it is to say that, once the state has
taken responsibility for an individual by taking him under their
charge, then the state comes under an obligation to exercise reasonable
care in relation to the welfare and well-being of that individual.
Q2110 Baroness Finlay of Llandaff:
I am sorry; this is going to be a terribly badly worded question.
You referred earlier on to the principle of best interest. It
has been suggested to us that if this Bill became law then the
possibility of physician assisted suicide and euthanasia would
be a therapeutic option, because it would be part of the therapeutic
armamentaria of the doctor, and once something is a therapeutic
option, then it has the potential to fall into the patient's best
interests because it would not be a therapeutic option if it were
never in somebody best interests. At the moment we do not consider
killing as within the realm of best interest, so it is never a
therapeutic option as defined and in the law. I wonder whether
there would be a position in law whereby it could be deemed to
be an obligation on physicians to offer assisted suicide or euthanasia
to all patients to whom it might potentially pertain because it
could potentially be deemed to be in their best interests, linking
into them being informed of all of the therapeutic options available
Lord Goldsmith: I am just considering the circumstances
in which this question actually arises. The context in which I
referred to best interests, and which the cases refer to, are
circumstances where the individual is not competent to make a
decision. As the Bland case shows, there are circumstances
in which the individual, not being competent, is therefore not
in a position to say, "I do not want any further treatment".
Notwithstanding that, are the medical officers under a duty or
are they entitled to decline to provide further treatment because
they regard it as in that person's best interests because they
are in a vegetative state or whatever it may be? Where the person
is competent, that is not a question which arises; and my understanding
of the bill is that one of the key conditions under which it would
apply would be that the person was competent to make that decision
and was competent, as I have said, right down to the moment of
Q2111 Baroness Finlay of Llandaff:
So what would be the position in law if a doctor who had a patient
in front of him and decided to not offer something to that patient
which other doctors would consider was a therapeutic option for
that patient? For example, a person with a malignant disease where
the doctor took a decision to withhold the information that radiotherapy
and chemotherapy were available, whereas if that patient were
being treated by somebody else, he would have been offered that
therapeutic option. Is it an offence in law to withhold that information
Lord Goldsmith: I do not see why it would be
an offence in law. I am focusing upon the criminal offences in
law and not touching in any wayit would be right outside
my field of expertiseupon what the standards of professional
ethics required by the relevant professional bodies would be.
I put that out of my mind. I do not think that declining to invite
a patient to consider the possibility of suicide would be a criminal
Q2112 Chairman: Thank you very much
indeed for taking the time to come along, Attorney General, and
to Mr Perry also for coming along and helping to eliminate an
area which has certain difficulties in it for us to fully understand.
So far as the draft paper is concerned that you have given us,
we would perhaps invite you to let us know if you want any changes
to be made in it. Otherwise we would be likely to use it as part
of the evidence. I do not myself notice anything that has come
up in the course of the discussion which modifies it, but you
may want to let us know.
Lord Goldsmith: I will do that, and I will do
that very shortly.
Q2113 Chairman: It may be just a
little helpful to slightly extend the passage that we were dealing
with earlier about the form making the distinction as plainly
as possible to make it between the two possible cases, a case
where there is no arrangement made in this country, all the arrangements
are made abroad, and cases where the arrangements are started
being made in this country and continue abroad.
Lord Goldsmith: Yes.
Q2114 Chairman: As far as I am concerned,
I think what you have put is quite clear, but it may be possible
to make it even clearer. Thank you very much.
Lord Goldsmith: We will do that.