§ 3.8 p.m.
§ Lord Walton of Detchant rose to move, That this House takes note of the report of the Select Committee on Medical Ethics (HL Paper 21).1345
§ The noble Lord said: My Lords, when the noble Lord the Leader of the House approached me a year ago asking whether I would be willing to chair a Select Committee on Medical Ethics, established in order to consider difficult issues set out in the preamble to our report, I recognised that the task would be sensitive and challenging. But, at the outset, I wish to pay a very warm tribute to the remarkable expertise and judgment of those whom your Lordships in your wisdom nominated as members of the committee, embracing as they did a wide range of legal, theological, medical, nursing and political opinions. Never have I been privileged to chair a body at once so thoughtful, so dispassionate, so dedicated and so judicious. I was also much impressed, as were my colleagues, by the vast range and volume of evidence we received from innumerable sources, corporate, professional and individual; indeed some of the most moving came to us from individuals, based upon their personal and often harrowing experiences. I must also pay a very special tribute to Mary Ollard, our Clerk, whose drafting skills and total dedication to the task in hand, let alone her command of the English language, were simply beyond praise.
§ Little did I think, as our task began, that it would be possible to achieve unanimity. I was only too well aware of the wide range of religious and ethical opinion represented on the Committee and of the many entrenched differences of opinion on the topics that we were required to consider which had been exposed in the media in the past few months and years. But, in the end, although there was a single important issue on which we disagreed, we did not find it necessary to divide as we concluded that that particular point, to which I shall refer later, need not be decided. Hence it is with very great pleasure that I am able to present a unanimous report to the House and I am grateful, as I am sure are my colleagues, for the Government's carefully considered and generally supportive response.
§ May I summarise our principal conclusions. First, we wholly accept the concept of informed consent as being at the heart of the relationship between doctor and patient, invariably governing decisions about medical treatment. Hence we strongly endorse the right of a competent patient to refuse consent to any medical intervention for whatever reason. The doctor must nevertheless ensure that the patient understands the likely consequences of such refusal and the reasons for proposing a particular treatment, but no member of the healthcare team may overrule such decisions except, as the Government point out, in certain defined and limited categories of mental illness where it is of course not an issue relating to a competent patient. If there is, however, a public interest in the outcome of a treatment decision relating to a competent patient which is thought to surpass the interests of the individual, a decision to overturn it may be taken by the High Court. If that occurs full reasons must be given.
§ With respect to euthanasia, may I first indicate that in our deliberations we defined voluntary euthanasia, at the request of the individual concerned, as being a deliberate intervention undertaken with the intention of 1346 ending a life so as to relieve intractable suffering; an act which must inevitably terminate life. We were unanimous in concluding that the right to refuse medical treatment is far removed from the right to request assistance in dying. We considered carefully the strongly held and sincerely expressed views of those witnesses who advocated voluntary euthanasia. Many of us have had 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 one seemed already lost to us or simply weary of life. Many moving letters also came to us from individual members of the public describing such experiences. And we were fully aware of the view expressed, for example by Professor Dworkin, that for those without religious belief the individual is best able to decide what manner of death is fitting. Ultimately, however, we concluded that such arguments are not sufficient reason to weaken society's prohibition of intentional killing which is the cornerstone of law and of social relationships. Individual cases cannot reasonably establish the foundation of a policy which would have such serious and widespread repercussions. The issue of euthanasia is one in which the interests of the individual cannot be separated from those of society as a whole.
§ One compelling reason underlying this conclusion was that we do not think it is possible to set secure limits on voluntary euthanasia. As our report shows, we took account of the present situation in the Netherlands; indeed some of us visited that country and talked to doctors, lawyers and others. While we accept the sincerity of those who fervently advocated the present procedures that exist there, and while it would not be proper for me to criticise the decisions of the medical and legal authorities in another sovereign state, we nevertheless returned from our visit feeling uncomfortable, especially in the light of evidence indicating that non-voluntary euthanasia—that is to say, without the specific consent of the individual—was commonly performed in Holland, admittedly for incompetent, terminally ill patients. We also learned of one specific case in which voluntary euthanasia was accepted by both doctors and lawyers for a physically fit 50 year-old woman alleged to be suffering from intolerable mental stress. We felt particularly uncomfortable about that and about other examples. We concluded that it would be virtually impossible to ensure that all acts of euthanasia were truly voluntary and that any liberalisation of the law in the United Kingdom could not be abused. We were also concerned that vulnerable people—the elderly, lonely, sick or distressed—would feel pressure, whether real or imagined, to request early death.
§ Our decision was significantly influenced by the outstanding achievements of the palliative care movement in the United Kingdom; a movement which does not exist in comparable degree in the Netherlands. We are satisfied that the pain and distress of terminal illness can be adequately relieved in the great majority of cases, not only within hospices but also in general hospitals, and in the community through the training of homecare teams and the expertise of general practitioners who are making such care more widely 1347 available. We would have welcomed an even more positive response from the Government on that point, especially in relation to resources.
§ While we rejected the legalisation of euthanasia, we were nevertheless wholly supportive of so-called "double effect". What we mean is that, in the small and diminishing number of cases in which pain and/or distress cannot be satisfactorily controlled, the professional judgment of the healthcare team can be exercised to enable increasing doses of medication (whether of analgesics or of sedatives or of both) to be given in order to provide relief, even if this shortens life. The essential question here is one of motive. If the motive is to relieve pain and distress with no intention to kill, we regard this as being wholly acceptable, both in terms of medical practice and under the current law.
§ We spent much time in considering decision-making for incompetent patients, bearing in mind the need for society to offer special protection to the vulnerable. We therefore support the proposal of the English Law Commission that a new judicial forum should be established with power to authorise the commencement, withholding or withdrawal of treatment where this is in the patient's best interests. However, we do not believe that application to such a forum should be a routine event; in most cases, consultation among the healthcare team and the family or other people close to the patient should result in agreement on an appropriate course of action. But, in the event of dispute as to what action is appropriate, or doubt as to the legality of what is proposed, recourse to an authoritative forum would be an advantage. We understand that the English Law Commission will probably recommend that the new jurisdiction should be exercised by a reconstructed and enlarged court of protection with nominated judges of the High Court and nominated circuit and district judges. The Scottish Law Commission is also considering this issue.
§ My committee was strongly attracted by the idea of local tribunals comprising legal, medical and lay members to fulfil the functions of such a forum for medical decision-making. But we recognise that the Law Commission's intention is that the new court should also discharge other functions for incompetent people. We are, however, concerned that an entirely judicial forum will not have the same medical or lay input as would a tribunal system, and therefore recommend that a mechanism should be adopted whereby the new court will make full use of appropriate independent medical and ethical advice. Such a court should be locally based, with procedures being as informal and accessible as possible, and life or death decisions should be considered only by judges of appropriate status and experience.
§ With respect to treatment-limiting decisions, all our witnesses agreed that there is a point at which the duty to try to save the patient's life is exhausted and at which continued treatment may be inappropriate. But this point cannot be readily defined. Decisions to limit treatment may depend on a balance between the burdens which the treatment would impose and the benefits 1348 which it may produce. Controversy inevitably arises when such treatment-limiting decisions must be made in respect of incompetent patients.
§ We were particularly concerned, of course, with the case of Tony Bland and subsequent decisions made by the High Court, the Court of Appeal and the Appellate Committee of this House. We have recommended that the medical and other caring professions should be invited to draw up an agreed definition of the persistent vegetative state, along with a proposed code of practice.
§ The one issue upon which we could not agree was as to whether, in such a case, it was ever proper to withdraw food and fluid, however administered. Some of us agreed with the conclusion of the Appellate Committee and of the other courts that, when given by an invasive method such as, for example, a nasal tube in an individual unable to swallow, this constituted medical treatment; others took the view that food and hydration, however given, are a basic human right which should not be withdrawn under any circumstances. In the event, we concluded that the question as to whether it was ever proper to withdraw these was one which need not, and indeed should not, usually be asked. Alternatively, it would be better to ask whether certain treatments could be judged inappropriate, in that they added nothing to the well-being of the individual as a person. In the Bland case, for example, our view was that, if antibiotics had been withdrawn earlier, the outcome would have been that which eventually occurred after his feeding tube was withdrawn. We concluded that recovery from the complicating infections which would be inevitable in such a case could have added nothing to his well-being.
§ We considered carefully the question as to whether a new offence of mercy killing should be introduced into the criminal law. The Home Office reported to us some 22 cases in which it was suggested that a family member had either abetted suicide or had taken a positive act to end the life of a loved one suffering severe pain and distress due to an incurable affliction. In each, an initial charge of murder had been considered, but this was ultimately changed either to one of attempted murder or manslaughter or else a plea of diminished responsibility was accepted; it was generally agreed that the motive in virtually all such cases had been compassionate and merciful. However, we concluded that to distinguish between murder and mercy killing would he to cross the line which prohibits any intentional killing, a line which we think it essential to preserve.
§ But we endorse the recommendations of a previous Select Committee of your Lordships' House that the mandatory life sentence for murder should be abolished. This would allow the courts in the case of particularly heinous crimes to impose a sentence even longer than is now implied by a life sentence, but to take a much more lenient view when it was clear that the motive of the individual charged was one of mercy. It seemed to us that in some such cases the, prosecuting authorities may have amended a murder charge on the grounds that no jury would be likely to convict, possibly because of the consequential imposition of a life sentence if the individual were found guilty. It seemed to us that in some such cases the present law was, in a sense, being 1349 manipulated. I am sorry that, in their response to our report, the Government have not accepted that argument, which I find compelling. However, we did not recommend that there should be any change in the law relating to assisted suicide, and we note that the Government agree.
§ We also considered the question of advance directives and proxy decision-making. While the idea of a patient appointing proxies was superficially attractive, we felt that, either when surrogates were appointed by the patient himself or herself or when appointed on an ad hoc basis by an external agency once a question of withholding or withdrawing treatment had arisen, there might be serious practical difficulties in ascertaining what choice the patient would have made if competent. We also felt that even a decision made by a surrogate in good faith could lack objectivity; for this and for other reasons we did not favour proxy decision-making.
§ However, we did commend the development of advance directives which enable patients to express in advance their individual preferences and priorities in respect of treatment, should they subsequently become incompetent. We considered carefully the Private Member's Bill of the noble Lord, Lord Allen of Abbeydale, and the points he set out in his supportive memoranda, but eventually concluded that such directives are becoming so widely accepted in case law and by the medical profession that legalisation is not now necessary. Hence we did not feel that the Bill set down by the noble Lord, Lord Alport, was needed either, but we did accept that there may be circumstances in which it is possible to specify precisely particular categories of treatment which a patient would not find acceptable in any circumstances, such as, for example, a blood transfusion in a Jehovah's Witness.
§ Nevertheless, we were concerned that advances in medical treatment occurring in the years after signing an advance directive might render its recommendations inappropriate. Hence our conclusion was that, while such directives should give general guidance, they should not be made legally binding. However, we recommend that the colleges and faculties of all the healthcare professions should jointly develop a code of practice to guide their members on this matter, and that they should encourage professionals to disseminate information about these documents. They should most appropriately be lodged by a patient with his or her general practitioner, who should be required to produce them to any other healthcare professional taking over care of the patient—for example, on admission to hospital. We recognise, of course, that the Law Commission and the Scottish Law Commission are now considering this matter carefully.
§ Finally, we did conclude that, while, as the Government point out, resources for health care are not and can never be infinite, healthcare teams should not be required to make decisions relating to resources in the course of day-to-day clinical care of individual patients. Their concern should be for that individual's welfare. Decisions about treatments which society can or cannot afford should be made elsewhere than in the hospital ward or the doctor's consulting room, on the basis that 1350 such treatments as society does wish to fund must be made available equally to all who can benefit from them. We emphasise in particular that treatment-limiting decisions should never be influenced by resource availability.
§ We recommend finally that high-quality palliative care should be made more widely available, that research into new and improved methods of pain relief and symptom control should be adequately supported and its results effectively disseminated and that the training of healthcare professionals should do more to prepare them for the weighty ethical responsibilities which they carry, by giving more priority to ethics and to counselling and communication skills; points now well accepted by the relevant professions and, I am glad to see, by government. And we stress that long-term care of those whose disability and/or dementia makes them dependent should have special regard to the need to maintain the dignity of the individual.
§ In welcoming the Government's positive response to most of the recommendations in our report, I commend it and have pleasure in presenting it to the House.
§ The Earl of Cork and Orrery
My Lords, may I ask the noble Lord a question before he sits down? In the course of evidence and in reply to a question by the Lord Chairman, Mr. Hurwitt, the chairman of the Voluntary Euthanasia Society, stated that the society had in preparation and in draft two new Bills, one on advance directives and the other on voluntary euthanasia. Were either of those Bills produced before the committee?
§ Lord Walton of Detchant
My Lords, we received extensive evidence from the Voluntary Euthanasia Society, but my recollection is that we did not see a draft Bill on euthanasia.
Moved, That this House takes note of the report of the Select Committee on Medical Ethics (HL Paper 21). —(Lord Walton of Detchant.)
§ 3.29 p.m.
§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, I welcome the opportunity to participate in the debate. I congratulate the noble Lord, Lord Walton, on getting it on to the Order Paper.
The focus of this debate is the recent report of the House of Lords Select Committee on Medical Ethics and the Government's response to it which was published last Wednesday. I should like to begin by paying tribute to the noble Lord, Lord Walton, chairman of the Select Committee and to all the other Members of your Lordships' House for preparing such a well-considered and helpful report in this extremely important area. It is a testament to the wisdom of your Lordships in the choice of the chairman of this committee that it was able to produce a unanimous report in an area in which diverse views are held.
The House established the Select Committee on Medical Ethics at the end of 1992. Its terms of reference were to examine the issues relating to euthanasia and look at the wider area of what might be called "end-of-life decisions". The difficulties in that area were thrown into relief by two cases which were widely reported last year.
1351 The first was that of Dr. Nigel Cox, a rheumatology consultant at the Royal County Hospital, Winchester. Dr. Cox gave a lethal injection of potassium chloride to an arthritic patient in extreme pain who had let it be known she wanted to die. He was tried and convicted of attempted murder.
Then there was the sad case, to which the noble Lord has referred, of Tony Bland, a young man in the prime of life who was injured in the Hillsborough football disaster in April 1989. He was left severely brain damaged and in what is known as a persistent vegetative state. His condition was irreversible, yet he could have continued to exist for many more years—possibly 20 years or more—provided that he received nutrition through a tube. The health authority, with the support of the family, applied to the High Court to be allowed to discontinue feeding him so that he might be allowed to die. The court supported the application, which was then upheld by the Appeal Court and subsequently by my noble and learned friends in your Lordships' House. Tony Bland's feeding tube was disconnected and he died.
The advance of medical science has had some dramatically beneficial effects on the health of individuals and the population as a whole. Conditions which once led to an early death can now be cured, or if not cured, kept at bay. But it has led some people to question whether mere survival in the absence of any quality of life is a desirable outcome. Should doctors perform heroic interventions to prolong life on each and every occasion? What say does the patient have in all this?
In recent years there has been a welcome move towards a greater degree of participation by patients in the decisions about their treatment. The Patient's Charter emphasises the individual's right to be given a clear explanation of any treatment proposed, including any risks and options, before deciding whether to agree to the treatment. It is no longer a case of "doctor knows best". Patients' rights extend to participating in decisions—to the extent that they are able—on how they should be treated in the terminal stages of an illness.
The Law Commission for England and Wales and its counterpart for Scotland are both carrying out some work in the area examined by the Select Committee. As is widely known, the Law Commissions were set up in 1965 to promote the reform of the law.
In England, the commission published a preliminary consultation paper, Mentally Incapacitated Adults and Decision-making—an Overview, in April 1991. The responses to that paper convinced the commission that there is a need for reform. It published further consultation papers on various aspects of mental incapacity and decision-making. One of the papers issued in April 1993 is entitled Mentally Incapacitated Adults and Decision-making —Medical Treatmen and Research. That explores a number of the areas looked at by the Select Committee, principally from the angle of how decisions regarding medical treatment should be made on behalf of mentally incapacitated people, whether any changes in the law are needed, and if so, what they might be. The scope of the commission's 1352 work does not extend to euthanasia, mercy killing, assisted suicide or consideration of the mandatory life sentence for murder. The commission is hoping to publish a report on the whole topic of decision-making for people without mental capacity before the end of the year.
As is often the case, Scots law in this area differs from that in England and Wales. The Scottish Law Commission has been carrying out similar work to its English counterpart. In September 1991 it published a discussion paper on Mentally Disabled Adults: Legal Arrangements for Managing their Welfare and Finances. That explores many of the issues addressed by its equivalent south of the Border. It too hopes to publish its findings this year.
Naturally, the Government want to wait to see what the Law Commissions recommend before we take any final decisions on some of the Select Committee's recommendations. We will look at the recommendations together and take decisions on the basis of their combined wisdom. That then formed the background to the committee's deliberations.
I should like to focus on some of the legal issues raised by the report. I shall leave it to the noble Baroness the Parliamentary Under-Secretary of State for Health to deal with some of the wider health issues when she speaks later in the debate.
When a patient no longer has capacity to make decisions for himself, who should make the decisions regarding medical treatment on his behalf? The committee considers three ways in which those decisions can be made. The first is advance directives, First, the person himself can make the decisions before the onset of mental incapacity by means of an advance directive. By such a directive, I can give instructions as to which medical treatment I would not accept if I should subsequently lose capacity to decide for myself. When the instructions relate to the refusal of life-sustaining treatment in the event of terminal illness, they are typically referred to as "living wills".
In England and Wales it now appears that an advance directive can have legal effect. Those directives were supported by the Law Commission in England and Wales in its consultation paper and commended by the committee. I understand that the Scottish Law Commission also supports them. They are invaluable as they ensure that the patient's own wishes are known and are an extension of the individual's right to say no to medical treatment. In addition, the preparation of such directives encourages useful dialogue between patients and doctors regarding treatment at a stage at which the patients may be able properly to engage in such a dialogue. It is important to emphasise that advance directives are not a form of euthanasia or suicide. They cannot require doctors to do anything which is illegal.
However, directives are not without problems. For example, can I so accurately predict into the future that I can give instructions regarding all eventualities? What if new treatments become available of which I was unaware at the time of giving my instructions? For reasons like this, the committee does not suggest that legislation is appropriate but recommends the formulation of a code of practice.
1353 The Government are not making any decisions regarding those directives until we have looked carefully at what the Law Commissions in England and Wales and Scotland have to say on the subject when they produce their reports. Nevertheless, we agree that a statement of good practice would be beneficial. My noble friend the Minister will bring us up to date on progress on this matter later. Such a code of practice will need to take account of any decisions taken by the Government as a result of the Law Commission's recommendations in this area.
Secondly, it has been proposed that a person could be appointed as the patient's proxy and make decisions whether or not to consent to medical treatment on his behalf. The proxy could be appointed by the patient himself before the onset of mental incapacity or by the court. Scotland already has proxy decision-makers. They are called tutors-dative.
The committee does not favour proxy decision-making. It considers that decisions by proxy have many disadvantages, including the possibility that the proxy's decisions could be influenced by the cost of treatment where the proxy is paying the bills. It considers it to be a fiction to suppose that a proxy choosing between life and death is making a choice as the representative of the patient when it is a choice which the patient never had the occasion to contemplate. It did not specifically consider the extension of the scope of enduring powers of attorney to cover health care matters.
I have considerable sympathy with the committee's views. However, some people might prefer to appoint a trusted family member rather than try to draw up a complicated living will or leave it all up to the doctors. We must wait to see what the Law Commission's findings are in the matter. It will be interesting to see what the Scottish Law Commission has to say about the Scottish experience of proxy decision-making.
Thirdly, it is suggested that the court should make decisions regarding medical treatment for incapacitated persons. The committee supports the English Law Commission's provisional thinking on this. It is suggested that the court should not only have power simply to declare what is lawful or unlawful but also power to choose between alternatives or options.
The committee considers that recourse to the courts should be restricted to cases of dispute or difficulty. In most cases, consultation among the health care team and the family or other people closest to the patient will result in agreement on an appropriate course. Certain "special category" procedures, such as the withdrawal of artificial feeding, should always require approval of the court.
The Law Commission has not yet made any firm recommendations as to what the judicial forum should be and until those recommendations are made and considered carefully the Government would not be wise to make any final decisions. However, I note the committee's original attraction to a system of tribunals for medical treatment decisions and its recommendations relating to a new court. These will certainly be taken into account when the recommendations are being considered, in particular that the court should obtain 1354 appropriate independent medical and ethical advice and for procedures to be as informal and accessible as possible.
There are thus various proposals on the agenda as to how decisions might be made on the treatment options for incompetent patients. In the meantime, as the President of the Family Division has said, any future cases in England similar to that of Tony Bland, where it is proposed to withdraw nutrition from a patient in a persistent vegetative state, must continue to go to the courts. My noble and learned friends, in reaching their judgment in the Tony Bland case, made clear that their decision was in respect of the one case only: any other cases would have to go before the courts individually.
The Tony Bland case was of course a case arising under the law of England. The specific questions which it has raised have not come before the courts in Scotland. The practice which has evolved north of the Border is that treatment-limiting decisions in relation to persistent vegetative state patients have been taken only with the full involvement of the patient's family, the doctors and nurses concerned and in the light of expert clinical advice. Advice has also been taken from ethical and religious sources. This seems to be very much the approach now advocated by the Select Committee in paragraph 273 of its report.
I turn to refer briefly to the Committee's recommendations on the criminal law. The key element of the committee's report is its first clear rejection of the case for legalising euthanasia. The Government welcome this conclusion and find the committee's arguments wholly persuasive. We do not deny that this is a difficult and controversial subject, nor that individual cases will sometimes pose the most distressing and profound of dilemmas. But we believe that the committee rightly identifies the forceful arguments for maintaining the law's long-standing prohibition of intentional killing. This is a matter of principle in which society as a whole has a deep and inalienable interest. But it is also a practical matter; legalising euthanasia would put the weak and vulnerable in our society at risk and in fear. Our firm view, therefore, is that the intentional taking of life to relieve suffering should remain illegal.
For similar reasons, the Government also strongly endorse the committee's recommendations that there should be no new offence of "mercy killing" and no change in the law on assisted suicide. We do not believe that active intervention to end life should be excused on the basis of motive or the victim's consent. To do so would undermine the law's uncompromising stance on intentional killing and might bring with it many of the dangers associated with euthanasia.
The Government do not, however, agree with the committee's recommendations on the mandatory life sentence for murder. The committee's argument is that it would be wrong to exclude any intentional killing from the offence of murder by creating a new offence of "mercy killing". Its preferred response to pressure to create a new offence would be to abolish the mandatory life sentence for murder. In its view, it is the mandatory sentence for murder which gives rise to the pressure to distinguish mercy killings from other murders.
1355 I am not sure, however, that this line of argument bears close scrutiny. The pressure to create a new offence surely arises as much from a feeling that mercy killings are not and should not be regarded as murder as from any concern about sentencing. That feeling is understandable. But the committee has recognised the importance of maintaining the stance of the criminal law on all intentional killings.
The Government agree with the committee that it is "essential to preserve" the line which prohibits any intentional killing. It is exactly that need which, in the Government's view, justifies intentional killings continuing, uniquely, to carry a mandatory life sentence for murder. The mandatory life sentence reflects the unique nature of an offence which deliberately deprives another person of life.
There have, as the committee notes, been previous recommendations for the abolition of the mandatory life sentence for murder, most recently by the Committee on the Penalty for Homicide, and prior to that the Select Committee on Murder and Life Imprisonment. The Government take the view that these recommendations merit very careful consideration and take very seriously the arguments and concerns on which they are based.
But I have to say that, while there are undoubtedly some strong arguments for change, which previous committees have drawn together, the basis on which this recommendation is made is not a strong one. It is simply not consistent to argue that, regardless of motive, it is essential to preserve the line between intentional killings and other killings in relation to the offence of murder but to object to such a distinction being reflected in the sentence for murder.
The real question in relation to the issues that we are here to debate today is surely this. Given that we all accept that the law must clearly distinguish intentional killings, are the present arrangements able properly to deal with cases which might be covered by an offence of mercy killing? The answer, as your Lordships know, is that the mandatory life sentence is highly flexible in its practical effect. In fixing the minimum period to be served to satisfy the requirements of retribution and deterrence the Home Secretary considers the circumstances of each individual case. He also takes the advice of the Lord Chief Justice and the trial judge, who will already have had an opportunity to make his recommendation in open court. If the particular circumstances of the case merit it, an early review date can be fixed.
There is no question, in other words, of the particular circumstances in which an offence of murder was committed being ignored when decisions are taken about the period of the life sentence which should properly be spent in custody. But that mandatory sentence also ensures that we do not lose sight of the intentional killing which led to conviction in the first place.
I look forward to hearing the views of your Lordships on these important issues. I conclude by renewing the Government's thanks to the noble Lord, Lord Walton, and members of the Select Committee for their excellent work in producing for us a unanimous report on issues of such complexity.
§ 3.48 p.m.
The Archbishop of York
My Lords, I speak as a member of the committee. I wish to begin by saying what a good experience it was to serve on the committee and how much its members owe to the excellent: leadership of its chairman, the noble Lord, Lord Walton of Detchant. I wish to underline his comments about the superb work of the clerk.
It is pleasing to see how widely the committee's recommendations have been welcomed not only by the, Government but by many other bodies. Despite what was said by the noble and learned Lord the Lord Chancellor about the mandatory life sentence for murder, I hope that the Government will reconsider carefully the arguments for that. I bear in mind the case which made us think most carefully about the issue. It was that of Dr. Cox, who was convicted of attempted murder and that was possible only on the ground that the woman concerned had been cremated before the charge was brought against him. A murder charge was therefore impossible. We fear that unless there is some way in which the courts can indicate the seriousness of an offence juries will not convict. Therefore, I believe that there are matters here which need much more careful attention.
My main concern in speaking this afternoon is to draw attention to the very interesting moral and practical convergence experienced by the committee as we pursued the main arguments about euthanasia. We began, as our chairman reminded us, from very different positions. It was not at all clear at the start that we should be able to produce a unanimous report. Nobody was forcibly converted; and yet we found that the deeper we went into the issues, the more clearly we could identify the legal and moral lines which must not be crossed.
I draw attention to that because that is an important issue in a society like ours which quite rightly celebrates the fact that it is a tolerant and pluralist society, proud of its diversity, anxious not to restrict freedoms unnecessarily and willing to listen sympathetically to everybody's point of view. In the evidence that we took, we heard much that deeply aroused our sympathy on both sides.
However, it is becoming increasingly evident in our society that a tolerant and caring society can exist only if there are, at its root, some basic common understandings and shared values which must be nurtured and maintained arid which cannot be simply taken for granted. For example, tolerance can quickly relapse into indifference unless it is constantly reinforced by positive affirmations and policies which reinforce and safeguard respect for people and care for their lives.
We have to look, as indeed we did, at the legal assumptions which have made possible such tolerance, not least through their protection of human life. In the field of medicine too, we have to be aware of the aims and values which have formed the ethos of the medical profession and the absolute obligation to do no harm. It was that kind of thinking which lay behind our firm recommendation that we should have nothing to do with 1357 intentional killing; that there was a line which we must not cross, no matter how sympathetic we might be towards the fears and wishes of some individuals; and that if we crossed it, we could begin to erode the very foundations on which tolerance and care are based. We should be in danger also of changing the whole ethos of medicine and law if the absolute prohibition against intentional killing were removed. In other words, there are deep moral structures in our society with which we tamper at our peril.
The report affirmed strongly patient consent, frequently discussed today under the heading of autonomy. But we recognise that there too, there are moral lines which must not be crossed. Autonomy cannot be absolute and, indeed, it would be morally self-destructive if it were. Freedom is always freedom within limits. To take moral responsibility for one's own life does not absolve one from a whole range of responsibilities towards other people. Even death is not a purely individual matter because others are affected by it, whether relatives, friends, medical staff or, that abstraction, society as a whole which, in subtle ways, can be shaped by the manner of death of its members.
In other words, we belong to a moral community within which we learn and to which we contribute. Our autonomy as individuals always has to be understood in that context. The implications of belonging are particularly sharp when the point at issue is self-chosen death. That is why suicide is such a traumatic experience for those who are left behind. To will one's own death is the ultimate rejection.
Those are some of the thoughts which lie behind our central and firm recommendations. I highlight them because, of course, they have also a much wider significance in the on-going moral and political debate about the limits on individual freedom. One of those limits must surely be against actions which, in the long run, could undermine the sense of moral community on which individual morality must ultimately be based and within which it is nurtured.
I turn for a few moments, and finally, to the Bland case. As the noble Lord, Lord Walton, reminded us, that was the most difficult issue with which we had to deal. The problem presented itself in the form: is or is not artificial feeding a form of treatment? As the noble Lord reminded us, on that particular point, we disagreed. But it seems that behind the disagreement was a much more difficult issue about the kind of meaning which life could have for a patient in the persistent vegetative state. Had it not been for that more difficult question, the particular question about feeding would probably not have been relevant. Assuming the strict definition of PVS, which we should like to see established, the question is: in what sense is such a patient in the persistent vegetative state still morally a human person, needing all the care and attention normally given to conscious patients and those who may eventually recover consciousness?
The answer seems to be both yes, this is, in some sense, still a person; but no, in another sense, he is not. Yes, such a person still possesses human life; still commands the love of those who knew him; is still in 1358 some sense the same person who was once conscious; and therefore, he must be treated with the respect and care due to a human being both before and after death. But no, a patient in PVS has lost permanently some of the most vital attributes of personality—consciousness, the ability to think and the ability to communicate. If personhood is understood in terms of continuity of life, then a PVS patient is still undoubtedly a living person. But if personhood is understood in terms of the possession of certain vital attributes, then in PVS, the person in that sense has gone.
I do not believe that we can resolve that dilemma. I believe that both meanings of the word "person" are important, but I believe that it is possible to act in ways which acknowledge both meanings of the word "person". The phrase in paragraph 257 of our report about treatment adding nothing to Tony Bland's wellbeing as a person is an attempt to walk that very difficult tightrope. The phrase "wellbeing as a person" is, one might say, attribute language. It is about the way in which a person can be helped to flourish, to be more of a person. In the Bland case we recognise that no amount of treatment by antibiotics against infection could have done anything for Tony Bland's attributes as a person. Therefore, there was no overriding necessity to give such treatment.
On the other hand, the maintenance of life by feeding belongs to the other definition of personhood; namely, bodily continuity. Some of us felt that it was wrong to deny that aspect of care as long as bodily life continued. I hope that that is a clear and sensible distinction. It is a distinction within which I am elaborating on what the Select Committee says and the latter bears no responsibility for my particular interpretation. Nevertheless, I hope that it gives a clue as to what lawyers might work on to put the matter into an appropriate form. It seems to me to go some way towards resolving the intolerable dilemmas which surround such tragic cases and it may help us in the future as we try to face even more difficult problems.
§ 4.1 p.m.
Baroness Llewellyn-Davies of Hastoe
My Lords, the Select Committee on Medical Ethics was an unusually large committee. It had 14 members which is larger than usual; indeed, some of your Lordships, including myself, had the idea that it might be too large. However, as our discussions developed, my view changed. It is a subject which requires a multidisciplinary approach from both professional and lay points of view. As the noble Lord, Lord Walton, said in his powerful speech, we had distinguished lawyers, leaders of religious thought, moral philosophers, academics and active politicians who knew about the conditions that we were discussing. Most importantly, it was a unique opportunity to hear clear and explicit accounts from doctors and nurses about how they tackle the complex problems of desperately ill and dying patients, both those who were able to discuss their case with the health team—the competent patients—and those who were suffering from severe mental problems or persistent vegetative state.
1359 That the committee was unique was largely due to our chairman with his encyclopaedic knowledge, subtle wit and his fair and patient dealings with colleagues who looked as if they might be troublesome. We thought that he was magnificent. We were, indeed, especially fortunate to have the intellectual skills and complete dedication to her work of our Clerk, Mrs. Ollard. I think that the women on the committee were, perhaps, especially proud of her.
I shall try to be brief because I believe that the House will wish to hear more fully from colleagues who are more professionally qualified than myself. In any case, the two previous fellow members of the committee have already covered most of my speech. I have been intensely interested in the problems of patients in hospitals and in euthanasia itself for more than 30 years. Being on the committee has been one of the most interesting work experiences that I have ever had, although it was tremendously hard work—for all of us —and rather gruelling working both here and at home for a year which kept one thinking constantly of death and suffering.
The report is both massive and complex. Although your Lordships have had a very full description of the summary of the committee's conclusions from all speakers, I believe that it is as well to read it first in order to get the perspective of the whole. As the Government have recommended that there should be no change in the law to permit euthanasia, I should like especially to mention conclusions 287 and 291 which emphasise that,rejection of euthanasia as an option for the individual entails a compelling social responsibility to care adequately for those who are elderly, dying or disabled… [and that] long-term care for dependent people should have special regard to the maintenance of human dignity".We believe that to be of fundamental importance in the handling of all those cases. The committee goes on to emphasise that palliative care, which is now coming into greater prominence, should be more widely available. I worry a lot about this because although the hospice movement is doing magnificent work and is being extended, there are not enough of them, despite recent valiant efforts. We need to extend them and services such as those offered by the Macmillan Nurses. However, such services should be more available outside the hospices, because so many people die at home and many more wish to do so. Of course, that would be expensive, but special efforts should be made by local authorities and health authorities, and not least by the Government.
As previous speakers said, another of our conclusions endorses the right of competent patients to refuse any treatment for whatever reason. We also believe that the health team should always be aware of the patient's right to informed consent which should be the basis of the partnership between doctors, nurses and patients. Moreover, we believe that further training of health teams is vitally important so that student nurses and doctors can fully understand and appreciate the ethical questions that surround their practical skills.
After listening to the whole of the debate, your Lordships may feel that that is enough about euthanasia. I know that the volumes of evidence look very formidable, but there is a very human and moving 1360 account of the health teams' difficulties, especially when the situation of withdrawing treatment sometimes arises. A highly experienced senior consultant in geriatrics describes this in Vol. II of the evidence where he says:We must have some means of being able to sensibly and humanely withdraw treatment with the full support of the relatives, of other doctors, of the nursing staff and, hopefully, with the support of the law. It is this last bit which worries me and worries my colleagues".The consultant went on to say:There are difficulties with the present system—the first is, quite rightly, that the nurses are not handmaidens of the doctors that they were; they are very independent, very competent and very skilled and they have their own ethics. Quite rightly so. They believe, also, they have their own responsibilities; to see that the people they are caring for get the best treatment".There is also a conflict between some relatives who feel that the patient has suffered enough, they have reached a point of no return, and other relatives who feel that you have not given them long enough and there must be further hope. This is; also very distressing; you feel enough is enough".The consultant also told the committee:We need a simple method of obtaining reliable guidance so that we can take our nursing and medical colleagues with us and we can seek the advice independently of our legal colleagues to help us in framing a simple solution to a difficult problem, not overwhelming, but a common problem which the doctors at the moment largely carry … they carry it relatively unsung and we do not try to make a fuss about it, but every now and then we are in danger of running into conflict and it is very complex for us".From that description, your Lordships will recognise the complexities that face the health teams administering the wards which deal all the time with death, suffering, distress and the decision-making involved.
The committee was deeply impressed by the delegations that we met from the nursing profession. Their dedication to the patients is, of course, universally acknowledged and their practical skills are enhanced by their intellectual qualities, and also by their qualities of character. We can understand their worries about withdrawing treatment because it is the doctors who usually give the order or permission to act. It is the nurses who have cared for the physical needs and comforting routines of the patients, but they often carry out the withdrawal after they have given hour-by-hour care, sometimes for months even years. 'Their concern is completely natural.
The consultant also felt—I found this interesting—. that the nurses and doctors might take the special. education together, as they frequently did in the past. I would like to finish by saying that it would perhaps have been naive to expect changes in the law at present: without further pressure from medical and public opinion. I believe that opinions have moved in the past few years to a more sensitive attitude in general, for instance, to the life imprisonment question, advance directives and the giving of increasing doses. of painkilling drugs, even if they lead to death. These are. significant changes.
At the very first meeting of the Select Committee our witnesses were the Department of Health, the British Medical Association and the Home Office. They were rather overwhelming, and appeared to be dubious about. any kind of change. Now a year later the Government's response to the report has been more realistic than we 1361 could have hoped. I hope that we can build on the work of the report which has been in many ways a fruitful dialogue.
§ 4.12 p.m.
§ Lord Allen of Abbeydale
My Lords, it is perhaps worth recalling that when the noble Lord the Leader of the House introduced the first report from the Liaison Committee on 7th December 1992 at col. 11 of the Official Report he said that it had been agreed to recommend the setting up of a Select Committee on euthanasia. I ventured to say that I had it in mind to introduce a Bill about advance directives and that, although this was not euthanasia, it was likely to arouse not dissimilar reactions, and that it might be desirable that the committee's terms of reference should be drawn in sufficiently wide terms—and so in the event they were. I realise that I may unwittingly have played a small part in lengthening the time of the debate today but I think that the width of the terms of reference has proved to be of general benefit and that the committee has produced a most valuable and wide-ranging report —and unanimous into the bargain—on which the chairman and the members are to be warmly congratulated.
In view of the number of speakers, I shall limit my remarks today to the one topic of advance directives and I shall even resist the temptation of speaking about the life sentence for murder, on which, as it happens, I have a good deal of sympathy with the Government's view. I duly introduced my Bill—the Medical Treatment (Advance Directives) Bill—in March 1993. I did not seek a Second Reading but brought the Bill formally to the notice of the Select Committee. The Bill had a strictly limited purpose, which is very proper for a Back Bencher's Bill. Under its provisions, if an individual when of sound mind made an advance directive about the withholding of life-sustaining treatment in the event of that individual suffering from one or more of certain specified conditions without hope of recovery and being no longer able to take decisions, then a doctor, although not obliged to comply with such a directive, would not be committing a criminal or disciplinary offence if when the time came he did comply. There was a schedule attached to the Bill with a possible form of advance directive.
The Bill included a number of safeguards. A directive could become operative only when two physicians, one of them a consultant, were agreed that the patient was in a terminal condition and unable to make decisions about the use of life-sustaining treatment. The Bill also made provision for a number of criminal sanctions, for example against the forgery of a directive, or concealing the revocation of a directive. It suggested, although this was not mandatory, that a directive should be signed by two witnesses who, unlike witnesses to the signing of a will, should certify that they were satisfied that the person signing the directive understood what it meant and what was involved. All of this rested on the belief that the doctor will have regard to the wishes of his patient, even when these are given in advance.
1362 I had decided to go ahead with a Bill because of the number of people who told me that they did not want to be kept alive when helpless and in a vegetable-like state, and also because doctors I talked to were in genuine doubt as to their position under the law and the risks they might be taking if they acted on a directive. I received a good deal of support and I received a good deal of criticism, some of it from people who had read the Bill, some of it from those who had not. The Bill even achieved the distinction of having a petition presented against it praying that it should not be passed into law. As the petition was presented a day or two before the end of the Session, the risk was perhaps not all that great.
I naturally welcome the Select Committee's decision to commend the development of advance directives, endorsed as it now is, in suitably restrained language, by the Government in their written response and elaborated today in the helpful comments made by the noble and learned Lord on the Woolsack. I note with interest that the Select Committee thinks that doctors are increasingly recognising their ethical obligation to comply with advance directives and that the development of case law is moving in the same direction; and it is certainly helpful to have on record the views of the Crown Prosecution Service about the unlikelihood of prosecution. But, as my noble friend Lord Walton has explained, the Select Committee also concluded that legislation is unnecessary. I have to confess that I am not altogether persuaded by the arguments.
The committee rests a good deal on the argument that the patient might be deprived of new treatments which had become available since the directive was signed. But one would hope that there would be continuing dialogue between the doctor and the patient to ensure that a directive is kept up to date; and anyway, as I envisage it, it will become operative only if the doctors are satisfied that the patient is in a terminal condition and quite unable to take decisions about the use of life-sustaining treatment. This applies whether there is legislation or not. But the absence of legislation means the absence of the safeguards of the kind that my Bill was intended to provide. There would be no statutory bar to the directive being acted on by one doctor in isolation. It leaves a blank about ensuring that a person signing a directive understands what it means. The absence of legislation leaves in the air the potential role of an appointed proxy or of an enduring power of attorney. I fear that my own experience is that there are doctors, perhaps rather remote from the headquarters of the BMA, who are still not certain of their position.
Like the Government, I think that it will be necessary to wait for the findings of the Law Commissions before we can finally decide about the need for legislation going perhaps wider than my own modest Back-Bench Bill, assuming that the English Law Commission does not become too discouraged by the log-jam which is holding up some of its earlier proposals.
In any event, we shall clearly not have legislation for some time to come, if at all. In the meantime, I very much share the hope expressed by the noble and learned Lord that the colleges and faculties will take action on 1363 the Select Committee's urging to develop a code of practice, including the suggestions that the code should encourage the professionals to disseminate information about directives and encourage the regular review of directives by patients. A number of us will be watching for early action.
I have one last point. It will not have escaped your Lordships' attention that the individual states in the USA recognise as legally binding what the Americans, with their gift for phrases which defy intellectual analysis, call "living wills". It is reported that the late President Nixon had signed such a document stating in effect that he did not want to be sustained by artificial means if a serious illness or accident left him permanently debilitated. His stroke had done just that, and he was allowed to die with dignity. It is not surprising that many Americans are now following his lead and are signing "living wills". I hope that with increasing knowledge and with the increasing clarity which a code of practice should bring, more of our own fellow citizens will have the comfort of taking a step which will avoid a fate which so many people dread.
§ 4.22 p.m.
§ The Duke of Norfolk
My Lords, as President of the Catholic Union, with the Guild of Catholic Doctors I submitted written evidence to the Select Committee. I should particularly like to thank my noble and learned friend Lord Rawlinson for his indefatigable efforts to represent our views as a Catholic member of the Select Committee.
I must congratulate the noble Lord, Lord Walton, and the committee on their most welcome primary recommendation at paragraph 237 that there should be no change in the law to permit euthanasia. I am horrified to read that the Dutch Government revealed in their Remmelink Report that in 1990 there were a thousand deaths from euthanasia in Holland which were not at the patients' request.
Heading the recommendations of the Select Committee, at paragraph 276 the report reads:high-quality palliative care should be made more widely available by improving public support for the existing hospice movement, ensuring that all general practitioners and hospital doctors have access to specialist advice, and providing more support for relevant training at all levels".We should all like to know what steps the Government are going to take to implement those important recommendations.
My wife founded a national charity, Help the Hospices, 10 years ago when there were only 80 in-patient units, including 20 financed by the National Health Service. Today there are 200, of which 150 are independent hospices giving free charitable service and largely dependent on their own fund-raising. Government funding for the running costs of voluntary hospices has reached 38 per cent., but there is a likelihood that in 1994–95 that will cease to be ring fenced, by which I mean specifically allocated in the Vote given to the health regions for hospices. I earnestly hope that the Government will keep the funding ring fenced and will raise it to 50 per cent.
§ 4.25 p.m.
§ Baroness McFarlane of Llandaff
: My Lords, I count it a great privilege to have served on the Select Committee. The topic before us held a great many complex issues of medical, ethical, legal and theological concerns on which there were profound differences of view, both in our committee and among those who gave evidence to us. Those views were often held with great depth of emotion since they touch on matters of human worth, the value of life, personal autonomy and the suffering and death which are inherent in the human condition.
I should like to add my tribute to our chairman, the noble Lord, Lord Walton of Detchant, in achieving a unanimous report from a group which held widely different views without any suggestion of compulsion.
I came to the work from a background of traditional Christian belief which holds the view that human beings are created in the image of God, and as a consequence there is a sanctity or holiness in human life. Yet, as we discussed with those who gave evidence to us and read the evidence submitted it was clear that not everyone holds that view. I accept that for many in a secular society the phrase "the sanctity of human life" has ceased to have meaning. Yet we have to come together as a society and find a way of making decisions.
The noble Lord, Lord Walton, has already paid tribute to developments in palliative care and in the hospice movement. I believe that during my lifetime we have passed through an era in which we strove officiously to keep people alive rather than recognising that there is a time to be born and a time to die. I am heartened that there have been changes in recent years as the hospice movement and palliative care have developed as specialties. I like to think that the great innovator of hospice care, Dame Cicely Saunders, came to it from a background first of nursing, then through social work, medicine and pharmacology, with her own unique spiritual dignity. In hospice care she has created a very real asset to our society.
One can also read the works of people such as Dr. Sheila Cassidy, who maintains that hospice care should be a model for other areas of medical and health care because in that setting we look at the whole person arid care for the whole person.
Our terminology is important. It is important to look at the definition of euthanasia as a deliberate intervention undertaken with the express intention of ending a life to relieve intractable suffering. I believe, too, that the term "passive euthanasia", which has been so commonly used, is misleading. It is important to make those distinctions.
As a nurse I wish to go through some of the responses of the Royal College of Nursing to the report of the Select Committee. I am heartened that similar responses come from the British Medical Association and from the Government through the Department of Health. The Royal College of Nursing agrees that there should be no change in the law to permit euthanasia. It agrees that the practice of euthanasia is contrary to the public interest and to the ethical principles of the profession. It suggests that the fear of pain and hospitalisation is better 1365 met by improved palliative care rather than a change in the law. It shares our anxiety that should the law be changed, vulnerable people might well be placed under pressure to accept euthanasia.
The Royal College of Nursing strongly endorses the right of the competent patient to refuse consent to any medical treatment; and indeed that is now enshrined in the Patient's Charter and I believe is far more commonly recognised and implemented by the medical profession.
The college endorses the view that treatment-limiting decisions should be made jointly by all involved in the care of the patient on the basis that treatment may be judged inappropriate if it will add nothing to the patient's wellbeing; and the college welcomes the committee's clear distinction between treatment and treatment limitation.
The college endorses the committee's recommendations about the desirability of advance directives—that legislation is unnecessary. But it says that directives need to be fully understood and that there may be difficulties in interpretation. There is need for open discussion about the ethical problems involved in the care of people at the end of their lives. It is significant that already the Royal College of Nursing and the British Medical Association have agreed to work together in developing a code of practice on advance directives; and indeed in its response the Department of Health has offered to help them in the best way forward in this matter.
The Royal College of Nursing particularly welcomes the recognition of the Select Committee that,in certain circumstances, some treatments may be inappropriate and need not be given",and that this,should make it unnecessary in future to consider the withdrawal of nutrition and hydration, except where [this is] burdensome to the patient".Many of us on the Select Committee were impressed by the verbal evidence given by the Royal College of Nursing that feeding and hydration have a very special significance for nurses. After all the root meaning of the word "nurse" is to nourish; and it is through that activity, which is at the core of the nursing role, that many nurses are engaged in palliative and terminal care. Therefore that part of the discussion has a special significance in nursing.
It is probably unhelpful to have territorial disputes as to what constitutes medical treatment and what is nursing treatment. An interesting article in the Journal of the Christian Medical Fellowship seeks to summarise arguments for tube feeding as a medical treatment and arguments to classify tube feeding as nursing care. To classify as medical treatment, the first argument is that it is a medical response to pathology—the patient's inability to swallow, or to swallow safely. The second argument is that tube feeding is a medical treatment because it uses artificial means—an artificial tube and artificial substances. However, the contrary arguments are that food and fluid are part of basic nursing care which is the right of all patients. The arguments are, first, that tubes can be passed and operated by people other than doctors; namely, nurses, other help care professionals, family carers and even, in different 1366 circumstances, the patient himself. Secondly—it is an argument that I had not heard previously—it is argued that the concept of artifice is potentially misleading. We bottle feed babies and use cutlery ourselves. Although that analogy can be pushed too far, Dr. Keith Andrews of the Persistent Vegetative State Rehabilitation Unit at the Royal Hospital and Home, Putney says,To my mind the tube is simply a tool for daily living, similar to the specially adapted spoons that enable arthritic patients to feed themselves".Therefore, I come back to the words of the report that,in certain circumstances, some treatments may be inappropriate and need not be given",and that this,should make it unnecessary in future to consider the withdrawal of nutrition and hydration, except where [this is] burdensome to the patient".The last two points supported by the Royal College of Nursing concern the training of health professionals in ethical decision making. In its Project 2000 courses, the United Kingdom council for the training of nurses and health visitors has already laid down that ethical content in training. Similarly the Royal College of Nursing endorses the recommendation that more resources be made available for palliative care. I was heartened to see in the Government's response that the Standing Medical and Standing Nursing and Midwifery Advisory Committee issued a report in 1992 stating that all patients needing palliative care nursing services should have access to them and that good practice initiated by the voluntary sector should be incorporated at all levels in the National Health Service. We may have some way to go to achieve that objective, but I am sure that we are on the way.
§ 4.39 p.m.
§ Baroness Platt of Writtle
My Lords, the committee's report that we debate today is most impressive, showing great sensitivity and understanding in dealing with the difficult subject of life and death. This House must be thankful that, despite all the complexity and controversy of argument presented to the Select Committee which rendered its task of formulating an opinion so difficult and demanding, it was able to achieve a consensus and to make its report unanimously. We all pay a particular tribute to its chairman, the noble Lord, Lord Walton.
I share the committee's belief that the special worth of human life is at the heart of civilised society. Once that belief is eroded in however small a way, subtle changes in associated values will become more acceptable insidiously, and our community will find itself coping with quite unintended results. As the committee notes, death results in possessions and privileges passing to other people, who, however hard they try, cannot be entirely disinterested or objective.
I remember when serving on a rural district council young couples putting to us the fact that after looking after their elderly parents for years they would have no right to the tenancy of their council houses when those parents died. Initially we agreed to transferring the tenancies into the young couples' names. After some years' experience it became clear that some elderly couples felt, in varying degrees, a sense of pressure.
1367 Their homes were no longer their own. We changed the policy back to leaving the tenancies in their hands, coupling it with sympathetic consideration for the young couple's likelihood of getting the tenancies when their parents died. That experience leads me to support the committee's emphasis on consideration of different cases being taken jointly by families and health care teams, and not by individuals, giving due weight and balance to all the attendant circumstances. I also support the right of competent patients to contribute to decisions about their own treatment once they have understood the advantages and disadvantages of those decisions.
Similar kinds of decisions have sometimes to be made for patients who are no longer competent to make them for themselves. They may have made advance directives before they became incompetent. Those directives, which I do not believe should be legally binding, will nevertheless be of assistance to the health care team in coming to difficult decisions about withdrawing treatment or about not intervening over-aggressively to prolong life.
I like the idea, too, which appealed to the committee of developing codes of practice in these difficult situations to which health care teams and families could refer to assist them in coming to responsible decisions on behalf of incompetent patients. I also agree with the committee that the right to refuse treatment is far removed from the right to request assistance in dying, and that arguments on behalf of voluntary euthanasia should not weaken society's prohibition on intentional killing. That would start us down a very slippery slope which, I am sure, we should all later regret, since its ultimate results in the future could not clearly be seen now. I am sure that it would mean that some vulnerable elderly people would feel pressurised to seek early death so as to relieve their relatives of their care instead of seeking the palliative care that they really needed.
I am deeply privileged to be the patron of our local hospice, which has now been in action for over 10 years. Its aim is to provide what is now called palliative care. It helps only people who cannot be cured. In that respect its inspiration is entirely different from that of a hospital, where the aim of the staff must be to do all that they can to cure patients. Hospices are there to relieve pain and distressing symptoms and to give patients as much quality of life as possible, and to help them to die with peace of mind in an atmosphere of loving care.
The relief of pain and distressing symptoms, as the committee states, may entail the need for increasing doses of medication if relief is truly to be provided. That may in itself shorten life. But if such treatment is carried out responsibly by the doctor and the health care team with the objective of relieving pain and distress—not with intention to kill—then that is not a reason for withholding it. In those kinds of circumstances team decisions are of great assistance in taking proper medical responsibility.
Palliative care may be provided residentially in the hospice, or through day care there or at home through the associated Macmillan nurse scheme. Much needed respite care is also provided so as to relieve pressure on the carers themselves.
1368 We must all die one day and experience fear of death. The existence of the hospice movement, which was only started so recently, in the 1950s, by Dame Cicely Saunders, is bringing into being an entirely new attitude to dying which is of immeasurable comfort to patients and their relatives.
If we allow euthanasia (or mercy killing) we shall negate all the careful development of the hospice movement over the years. We shall undermine all its patient and difficult work in exercising, mercy in the treatment of the dying. That work has spread into general practice through conferences and lectures, and is now partially financed by the National Health Service. That shows how deeply its success is appreciated.
At this point I should like to divert for a moment to say how important National Health Service financial support to the hospice movement is in providing a secure base upon which to plan financially for the future. Professional staff contracts must be secure if the staff are to give their whole minds and all their skills to improving the treatment of vulnerable people who are in pain. Hospital beds are not used; and people are better treated in hospices. So there is every good reason for financial support to follow them. It can also finance the education of hospital staff and general practitioners in the new developments in palliative care so that they too can exercise these new skills in their day to day work. The Government must make sure that that financial back-up continues on a firm basis, as laid out in paragraph 276 of the report.
The greatest miracle, however, is the degree of voluntary help that the hospice movement attracts in a myriad of different ways: volunteers sitting with patients both in the hospice and at home; teaching them interesting crafts to fill their days in pleasant ways; carrying out ironing, cooking or gardening duties; sorting clothes for their shops; and raising money in an incredible variety of ways; never giving up, and continuing sometimes over many years. Often the volunteers have been helped themselves by the devoted nursing of their own loved ones through their last days. The support of those bereaved people is the clearest indication of the value of the work of the hospice movement. They know that palliative care really contributed to the comfort of their former relatives and friends. Nothing should be done to undermine that work. That is why I support the committee's report wholeheartedly.
I shall not enter into further detail, although, as the chairman knows, I do not agree with having the mandatory life sentence for murder removed for the reasons laid out so well by my noble and learned friend the Lord Chancellor this afternoon. Otherwise, I feel that this report has been most thoughtfully worked out. I hope that this House will endorse the committee' s report in general this afternoon.
§ 4.48 p.m.
§ The Lord Bishop of Oxford
My Lords, I add my own very warm welcome to the report of the Select Committee. I have to say that it came as a blessed relief. With so many bizarre and dangerous delusions floating around in our culture today, it is wonderful to have a 1369 report that is not only fundamentally sound in its recommendations but is a model of moral questioning and reasoning in reaching them.
The most reverend Primate the Archbishop of York and other noble Lords have already drawn attention to the proper emphasis in the report on the value of the human person, even when sick or old. I shall not repeat what they have said. I should, however, particularly like to commend the distinction in the report between killing and letting die, with its associated principle of double effect. As every doctor knows, and as the Government rightly recognised in their response, there comes a point in a terminal illness when it is absolutely right simply to let the patient die. As the 1980 Papal Encyclical On Euthanasia put it:One cannot impose on anyone the obligation to have recourse to a technique which is already in use but which carries a risk or is burdensome … When inevitable death is imminent, in spite of the means used, it is permitted in conscience to take the decision to refuse forms of treatment that would only secure a precarious and burdensome prolongation of life. There is no obligation to go on trying to keep a person alive when the expectation of life is short, the quality of life poor and the treatment burdensome".Furthermore, what we all require when we come to that point is to be kept out of pain and cared for. We may need large dosages of pain relieving drugs, even though they may have the further consequence of shortening our life. Administering such drugs in those circumstances is morally right; for, as the joint submission from the Church of England House of Bishops and the Roman Catholic Bishops' Conference of England and Wales put it, in words quoted by the Select Committee:There is a proper and fundamental ethical distinction … between that which is intended and that which is foreseen but unintended".That distinction is not always recognised and those who make it are sometimes accused of hypocrisy; nor is it passive euthanasia or euthanasia by another name.
The distinction is fundamental to Christian moral reasoning and many other kinds of moral reasoning as well. We can see the force of it, if we imagine potassium chloride being administered with the intention of killing a patient. If the dosage failed to bring about the result —killing—then a further large dosage would be administered in order to achieve it. However, when a person is given morphine with the intention of relieving pain, if the person's life is not thereby shortened, we do not administer more morphine in order to bring about that result. What was intended was pain relief and the drug has succeeded in achieving that result. We can and must make a distinction between what is intended and what is unintended, even though it is foreseen and has to be taken into account.
As we approach our end, we need to be kept out of pain and cared for. Like others, therefore, I particularly welcome the recommendations of the report about the need for further research into pain relief and symptom control and the emphasis upon palliative care being made more widely available. The hospice movement has been one of the great movements of our time, as the figures quoted by the noble Duke, the Duke of Norfolk, indicated and as the noble Baroness, Lady Platt, reinforced. As a result, the importance of palliative care 1370 for everyone is now widely recognised. Nevertheless, there is still progress to be made in ensuring that the highest standards of palliative care, which are present in hospices, are available in every hospital and every home throughout the country where someone is dying. At its best palliative care is concerned with the whole person —his physical, emotional and spiritual needs.
Our duty toward the dying is to accompany them on their way. There can be no reason deliberately:To hasten them from the here-and-now in which they still claim a faithful presence from us".As we accompany them, they deserve and need the best medical and nursing skills and the fruits of continuing research. For that, appropriate resources need to be made available.
I believe that this report deserves to be widely discussed and its recommendations carried forward. By refusing to sanction euthanasia, it underlines the value of the human being, even when old and sick. It is a value that constantly needs restating in our society. At the same time, it reflects best medical practice as well as the intuition of the majority of people that there is a time to die as well as a time to live and when that times comes the prime obligation must be to keep the person free from pain and fully supported emotionally and spiritually, not to prolong life at all costs. The practical imperative must, therefore, be to ensure that the terminally ill, wherever they are, receive the benefits of the best practice available.
§ 4.55 p.m.
§ Lord McColl of Dulwich
My Lords, I too want to pay tribute to the brilliant work of the noble Lord, Lord Walton, and the Clerk to the committee, Mrs. Mary Ollard. I should like to draw attention again to the difficult subject of advance directives, over which there are considerable differences of opinion throughout the country. Those involved in the development and interpretation of the law gave evidence to suggest that advance directives are legally binding as a result of case law. In the recent case Re T, the Court of Appeal held that there were three elements to a valid anticipatory refusal of treatment which must be proved. First, the patient must have the capacity to consent or refuse treatment; secondly, the patient must have anticipated and intended his decision to apply to the circumstances that ultimately prevail; and, thirdly, the patient's decision must have been reached without undue influence. Furthermore, in that case it was noted that an anticipatory decision need not be in writing but could be given orally to relatives and friends.
The debate has taken a further step in the Bland decision, where the majority of the Law Lords acknowledged that a doctor would act unlawfully—commit a battery—if he ignored a valid anticipatory refusal of treatment. As the Law Society stated categorically in its evidence, the legal validity and binding force of advance directives is now beyond question.
Furthermore, in the light of that present position, a number of legal bodies suggested that the time was right for legislation on this matter. They felt that there was a need to iron out the residual uncertainty that remains 1371 concerning the common law and that legislation might provide an opportunity for procedural matters to be claritied—matters such as the form of living wills, witnessing, registration and so on.
Other evidence that the committee received had a rather different perspective on advance directives. In its evidence, the Department of Health stated that:the doctor concerned should remain free to interpret an advance directive in the light of the precise circumstances applying at the time. Where a doctor Is satisfied that the circumstances envisaged when the patient drew up the advance directive match the patient's condition, he should follow the patient's predetermined wishes as set out in the directive. But where the patient's condition does not match the directive, or there are other factors, the doctor ought not to be obliged to withhold treatment".So far as concerns the Department of Health, it appears that the ultimate responsibility lies with the doctor and he is given considerable leeway in his interpretation of the directive. Furthermore, the BMA, while supporting the principle of an advance directive which represents the patient's wishes, fell short of supporting calls for legislation on the matter. While the BMA recognise that an advance directive should be complied with, it stated quite clearly that the individual patient's rights do not supersede the rights of other parties, and so doctors cannot be obliged to act contrary to conscience or the law.
There is need for clarification of advance directives before misunderstandings lead to court cases and doctors spending more of their time defending their actions in court than curing and looking after the sick. In the long term, legislation may be necessary to clarify the role and validity of the directives; but I hope that the legislation will fall short of making them legally binding upon a doctor in all circumstances. For instance, advance directives should not be legally binding upon a doctor in the following circumstances.
First, where a doctor is convinced that at the time of making the decision and drafting the directive the patients could not have been adequately informed about the nature of the condition from which they were suffering and the treatment options. For example, a young lady of 20 comes into hospital with an acute obstruction in the abdomen and has previously stated that on no account will she accept a colostomy. If the surgeon finds that the only way to save her life is to carry out a colostomy, what should he do? That situation has arisen on many occasions. I can recall a man of 36 who had a heart attack. His heart stopped and he took great exception to the treatment given in order to start the heart, and so forth. That happened several times and he decided to have no more of it. It was therefore clearly laid down in the notes that he was not to be resuscitated if the heart should stop in the future. Three days later it stopped again and a doctor from another ward happened to be passing by and resuscitated him, which caused no little rumpus. However, seven years later the patient is alive and well.
Secondly, when a person makes a directive which becomes inappropriate because of medical advances, it should not be legally binding. For instance, a directive to forbid treatment if an AIDS-related illness occurs would be inappropriate if a cure for AIDS were discovered in the future. Thirdly, the directive should 1372 not be legally binding where the doctor considers that the patient's wish may have been suicidal. Fourthly, the directive should cease to be legally binding where a doctor perceives that there may have been some pressure applied to the patient in drafting and signing the directive. Fifthly, it should not be legally binding when it contains requests for any unlawful intervention or omission, nor can the patient require treatment Ito be given which the health team judges is not clinically appropriate.
I have some anxiety over directives produced by the Voluntary Euthanasia Society which contain in them a refusal to take food and water by so-called artificial means. If such directives are legally binding upon a doctor, then we may see cases in hospital of patients dying through lack of food and water—perhaps patients with PVS, motor neurone disease or Alzheimer's, If such requests are legally binding then advance directives could become the back door for euthanasia, for some would consider it more humane to kill than to allow patients to die through lack of food and water.
Finally, if law is to be drafted on advance directives then perhaps the term "declaration" would be snore suitable. A declaration is a statement of wishes which can be discussed and taken into consideration by the healthcare team; a directive is an order, an issue of command, and technically incorrect as there are circumstances when advance directives should not be acted upon.
I hope that the House commends the report and reaffirms society's rejection of the practice of euthanasia.
§ 5.4 p.m.
§ The Earl of Listowel
My Lords. I speak as a layman; I am not a doctor; I was not a member of the committee of the noble Lord, Lord Walton of Detchant but this is a subject in which I have taken an interest since 1935—over 50 years. First, I express my thanks and associate myself with those who have already expressed their thanks to the noble Lord, Lord Walton of Detchant, for his invaluable report, the time and trouble that were involved, including a journey to, Holland, and the opportunity that it gives us to discuss, a subject of immense importance both to us and to the: general public.
I was pleased to hear that the right reverend Prelate: the Bishop of Oxford agreed with a recommendation in the summary of the report on the subject of double: effect. That could lead, in the drug treatment that the doctor had to give, to the death of the patient. However" the right reverend Prelate made it clear that the essential. point was that the treatment was given without the: intention to kill.
I should like to draw the attention of the House to the recommendation under 296:We commend the development of advance directives".The advance directive would obviously be of great use: to a doctor who wished to study the wishes of the patient he was treating. But I share the doubt expressed by the noble Lord, Lord Allen of Abbeydale, with the rest of the sentence, which says, 1373but conclude that legislation for advance directives generally is unnecessary".I cannot help feeling that that is a doubtful point which deserves further consideration.
I shall at this point inject a somewhat controversial note into the debate. I cannot agree with the first of the summary of conclusions at the end of the report:We recommend that there should be no change in the law to permit euthanasia".I assume that what is meant is "voluntary" euthanasia, as involuntary euthanasia would be homicide.
Since 1935, when the Voluntary Euthanasia Society was first formed by two doctors who asked me to join them, I have been advocating a change in the law which would allow a doctor to terminate, with the patient's consent, the life of a terminally ill or incurable patient, but that that could take place only after the patient had submitted a document called an "advance directive" informing his doctor what sort of treatment, if any, he wished to be given in the event of contracting an incurable or terminal illness.
The part played by modern developments in medical technology is enormously important. Having created a situation in which lives are routinely saved, transformed or prolonged by medical intervention, we can hardly accept that the process of dying must largely be left to nature. Medical expertise can now "keep alive" irreparably sick or damaged patients who in the recent past would not have survived. In a significant change of opinion I am glad to hear that the withdrawal of life support in appropriate circumstances is now supported by the British Medical Association.
The phrase "respect for life" may more accurately describe our present attitude to life and death situations than the more old-fashioned "sanctity of life". It was used by a distinguished judge in a recent case in the Court of Appeal. I shall quote his words:In my view, the choice which the law makes must reassure people that the courts have full respect for life, but that they do not pursue the principle to the point at which it becomes empty of any real content, and where it involves the sacrifice of other important values, such as human dignity and freedom of choice".That there is an informal "humane consensus" on this matter is now beyond doubt. Since the early 1960s, national opinion polls have been conducted on the following question: some people say that the law should allow adults to receive medical help to a peaceful death if they suffer from an incurable physical illness that is intolerable to them, provided they have previously requested such help in writing. In 1993, the positive response to that question was 79 per cent. At no time has there been a significant difference between those professing a religious belief and those without. It seems to show that at the present time public opinion is on our side.
The fact that doctors often act to help suffering patients to end their lives, and always have, has long been an open secret in medical circles. But until recently the profession's policy was not to make open acknowledgement of this. The British Medical Association reviewed the matter in 1988. So unsatisfactory did the Institute of Medical Ethics find the report that it formed a working party to issue 1374 another. The majority view of the working party was that for a doctor to assist death, if the patient has sought such help and all else has failed, was ethical.
An international consensus based in the United States reached the same conclusion in 1982. In several American states, the legality or illegality of assisted suicide has been the subject of a lively debate in the past two years. In Europe, it is unequivocally legal only in Germany and German Switzerland. But there are now voluntary euthanasia societies all over the world. The organisation representing them is called the World Federation of Right to Die Societies. These societies exist literally all over the world, in every continent.
A warm tribute should be paid to Dame Cicely Saunders, to the noble Baroness, Lady Platt, and to others who have done great service through the provision of hospices and the treatment that can be given in hospices. However, their aim is the control and mitigation of pain, and they do not claim to have found a completely painless, path to death. When I look back on the progress that has been made since 1935 in support for voluntary euthanasia in the democracies throughout the world, I feel sure that legislation will ultimately follow.
§ 5.14 p.m.
§ Lord Alport
My Lords, I think it is difficult for anyone over three score years and ten, when considering the subject of euthanasia—of life and death—to be objective. At the back of one's mind is the fear that somewhere ahead, after years of health and activity, there may lie a period of physical and mental corruption and pain, when life is no longer worth living.
Your Lordships will remember how many of the saintly characters recorded in the Anglo-Saxon Chronicles looked forward to death—partly, no doubt, in order to claim their inheritance in the next world, but partly because life in this was nasty, brutish and short. Owing to the advances in medical technology, life for an increasing number of people is nasty, brutish and long.
It was against the background of these sort of thoughts and when I studied the cases of Anthony Bland and Dr. Cox that I introduced during the last Session a Bill dealing with the termination of medical treatment. Your Lordships gave it a First Reading. I did not intend to take it further. It was simply that I was advised that it might help to persuade the authorities to set up a Select Committee on the subject if I brought a Bill before the House. In drafting it I had the advice of an extremely experienced consultant for the elderly and chronic sick at the Essex County and Colchester General Hospitals, who is a neighbour in my village, Dr. Peter Wilson. I recognise now that the Bill had a number of deficiencies. But if it had any part in influencing the authorities to set up the Select Committee, the report of which we are now considering, my amateur efforts were perhaps worth while.
The Select Committee's report provides what I suppose is the most thorough and important analysis of this difficult and emotive subject that exists anywhere in the world. It has provided a platform of fact and diversity of opinion on which those who seek to pursue the subject can now build. In view of the Select 1375 Committee's composition, it would be wrong to have expected it to make recommendations which would have satisfied the varied legal, moral, theological and medical views which are strongly held. I gave evidence to it both in writing and in person and I am grateful to the noble Lord, Lord Walton, and his colleagues for the opportunity they gave me and the courtesy with which they listened to Dr. Wilson's and my evidence.
As I have said, I believe that one's attitude to this subject is inevitably subjective. I am not a moral philosopher or a theologian. I believe that each of us has the right of choice and that we all have the right to claim, in the words of the poet Henley:I am the master of my fate:I am the captain of my soul".The courts have already decided that anyone capable of making a rational decision is entitled to refuse treatment. Differing from the Select Committee's views, I believe that treatment includes the provision by artificial means, as a result of developments in medical technology, of nutrition, hydration and air. This principle was applied in the case of Anthony Bland, who was of course a PVS patient, but I think it should be available in cases where the person is able to make a rational decision. It should be regarded as treatment in the full sense of the term and, where appropriate, withdrawn.
I should say here that I agree with the committee that the advance directive or living will should be regarded —this is what the noble Lord, Lord McColl, said—as an indication of the patient's attitude of mind but should not impose on the doctors or nurses an inescapable obligation which is at variance with a clinical judgment.
The real problem arises when the patient is mentally unable to make a rational decision or is in a persistent vegetative state. The reasons why I introduced my Bill were partly that I was appalled by the long-drawn-out legal process by which the Bland case was settled and partly that the immense responsibilities of the doctors and the liabilities which Dr. Howe faced in the Bland case and Dr. Cox in the other one were brought home to me. It seemed to me that Parliament had a responsibility to act as Lord Browne-Wilkinson in his judgment in the Bland case said he very much hoped it would.
I believe that when a person's body has become a cadaver, without any hope of improvement or recovery, sustained only by technically induced fluid, nutrition, air and medication, the decision to withdraw treatment should be a medical and not a legal one. That decision should be made in consultation with the nearest of the patient's kinship, or in the modern context with his or her partner. But the medical opinion should not be that of the consultant or doctor alone but also of the nurses whose devotion and skill have kept the patient technically alive.
Making such a serious decision of life and death imposes an immense responsibility on the doctors and on the caring team. In a litigious and media-dominated age there is always a possibility of litigation or vilification. Doctors have of course the BMA and the Department of Health guidelines on various aspects of the problems they have to face. But I think that as regards a small number of particularly difficult cases, 1376 some form of authoritative: support is needed. I do not think that this should be the long-drawn-out procedure of resort to the courts as in the case of Anthony Bland.
I suggest that the Royal College of Physicians, of which my father was a Fellow, the Royal College of Nursing and the BMA should set up an advisory panel consisting of three members experienced in the field of geriatric and chronic illness to which consultants and doctors can refer cases of particular difficulty.
I hope that something like that will help doctors who have to make these difficult decisions. I hope that it will help patients for whom continual suffering and the sense of mental degradation is no longer tolerable; and I hope that if I find myself faced with such an end, it will hell) me.
§ 5.21 p.m.
§ Baroness Warnock
My Lords, I would like to join others in recording my gratitude to the noble Lord, Lord Walton of Detchant, for his chairmanship of the committee. It was a difficult task which he carried out impeccably. Those who hoped, and those who feared, that the committee would recommend great changes in the law have, of course, been disappointed. There are some people (of whom I have met many recently) who think that the report is a timid and, in the worst sense, conservative or even complacent document. Having had the honour to serve on this Select Committee, it is worth saying that we were not complacent and that the report actually shows this because we have argued that there is still much that needs to be done.
There are just two aspects of the report on which would like to comment. The first is the so-called doctrine of double effect. It requires no change in the law for doctors, probably after consultation with the: nursing team and the patient's family, to give a dosage: of pain-killing drugs or sedatives in the case of terminal illness, which will probably have the effect of marginally shortening the life of the patient. In such a. case the double effect doctrine is used by way of justification; the argument being that the intention of the doctor was to relieve pain; the subsequent death being an unwanted side-effect which was not intended.
I believe that to many people this does sound like prevarication. If you know, or are reasonably certain, that an undesirable consequence will follow from what you intend to do, then in normal circumstances you are held responsible both for what you do and for the undesirable consequences. So, for example, if you know that your cat will almost certainly die if you spread weed killer on his favourite haunts, then you can hardly be absolved from responsibility for his death by claiming that all you intended was to kill the dandelions. I believe that most of us would regard it as a case of moral responsibility to take responsibility not only for the intention of killing the dandelions, but also for the consequence that the cat died.
There is a tendency among the medical profession to rebut this response that one must take responsibility for consequences whether wanted or unwanted. They tend to rebut that response by saying that, after all, they do not know for certain that the patient will die in the circumstances in which he has been given an extra dose 1377 of pain killer. They do not know for certain that the result of the pain killer or sedative will be death. All they know is that there is a risk that he will die and that is a risk that they, in the circumstances, are prepared to take in order to relieve his pain.
I personally very much prefer this way of putting the matter; namely, that they are prepared to take the risk of earlier death because in this way one can avoid what may turn into a number of philosophical quibbles, but quibbles nonetheless, about the meaning of the word "intention" or how far one's intentions are taken to extend in the case of any deliberate action. Because in saying that the doctor is prepared to take the risk we are quite overtly admitting that the doctor, with whatever advisers he has, is making a value judgment—that is to say, he is judging that the relief of pain in the particular case is of more important value than the preservation of life. In other words, he is judging that the quality of the patient's life of pain is so low as to justify the probability of its coming swiftly to an end.
I believe that there are some members of the medical profession who do not altogether like this way of putting it; holding that it places on the shoulders of the doctor too great a moral responsibility. It does impose this moral responsibility on him and it is right that it should be so placed. The medical and nursing team in charge of a terminally ill patient, whether they like it or not, are in a responsible—indeed a paternalistic—position. For my own part I would prefer this to be acknowledged. Their position is not enviable, but I do not believe that it can or should be concealed under a cloud of unknowing constructed about the concept of intention.
My second point I shall make more briefly. The Select Committee strongly recommended that the mandatory life sentence should be removed for the crime of murder. It is of course with extreme hesitation that I venture to dissent from the Government's view as expressed by the noble and learned Lord the Lord Chancellor. But I am personally no more persuaded by his arguments than the Government are by ours. I can see no inconsistency between maintaining—as I am certain we should—the absolute prohibition against intentional killing and the suggestion that not all cases of intentional killing should carry a life sentence. I do not see that it is inconsistent to say that intentional killing is murder, and is prohibited and to say that not all cases of murder should carry a life sentence.
We did not argue that killing from a supposed merciful motive should automatically receive a lesser sentence. Some intended killings of the terminally ill might turn out at trial to have been frivolously or even maliciously carried out. We argued only that some of those so accused should receive a lighter sentence. I do not believe that it is enough to say that in exceptional cases prisoners can be released after a comparatively short period in prison. It may be true that they may be so released, but in fact a glance at the figures of those imprisoned for murder, of which the motive was apparently the relief of suffering, shows that they are mostly serving at least six years imprisonment.
In my view it is at the stage of sentencing that the motive of pity or perhaps a desire to do what the sufferer 1378 deeply wants, should be taken into account if such a motive is ascertained. In my own view paragraph 261 in our report, in which we argued that the mandatory life sentence be abolished, is one of the most important in our report. Surely the Government's expressed view that "prison works" cannot be called in aid in such cases as those that we were considering.
§ 5.29 p.m.
§ Lord Butterfield
My Lords, I should like to join all those who have offered their congratulations to my long-standing friend and colleague, the noble Lord, Lord Walton of Detchant, and to his committee which he has led so brilliantly to produce this unanimous report. I was very touched by the remarks of the most reverend Primate the Archbishop of York when he spoke of the spirit of that committee and how its members converged—that is a very European word to use in these circumstances—on a general view about its attitude towards intentional killing. In fact, the most reverend Primate revealed the committee's abhorrence of that problem.
I wonder whether your Lordships will allow me a short time in which to test three euthanasia problems with which I have to deal in my professional life against the Select Committee's recommendations. I shall not reveal any names, but I think that from the circumstances of the cases your Lordships will get a feel of the situations with which I had to deal. The first occurred when I was very recently qualified. I hope that your Lordships will agree that the case shows how important it is that the Select Committee does not recommend the creation of a new offence of mercy killing and how important it is that the training of healthcare professionals—I was a young fledgling at the time—should prepare them for their ethical responsibilities.
As part of the healthcare team on a ward, I was taking care of a man who was, to use the modern jargon, "riddled with secondaries" in his spine from a carcinoma in his lung. He had such excruciating pain that he had to lie quite still in his bed. Turning in any way produced stabbing pains as a result of the secondaries rubbing against his nerves. I was a very recently qualified young doctor when the patient took me on one side and said, "I see that you are a keen sportsman. That means that you are a leader. That means that you understand that sometimes you have to take responsibilities above and beyond the expected call of duty". Much flattered, I nodded. He then went on to say that he knew, as I knew, that the morphine and heroin injections that we had been giving him were losing their effect, which was why he was still racked with pain. He asked why, given my courage as a young doctor, I could not release him from life. He went on to say that one of the other doctors had told him that if I were to inject a large dose of insulin between his toes—in those days insulin could not be detected—I could transport him over the Lethe.
I wrestled with the problem. I talked to my senior colleagues, who were rather of the opinion that the poor patient had much to be said on his side. I shall never be able to thank the Almighty enough for what happened.
1379 I had arranged that I might be woken in the middle of the night with the idea that. I would go about the task, terrified that the needle injection would leave a haemorrhage and be spotted and that the headlines would read, "Young doctor in court for mercy killing". A nurse came—to wake me, I thought, to take me to the ward—and said that Mr. X had died peacefully about 10 minutes before. So I realised that the Almighty was going to be on my side throughout my career. That is perhaps why I am standing here now.
The second case was a very difficult case of a much loved and very senior nurse who came into my care for her second coronary attack. She had had one before and was thoroughly aware of the prospects facing her when the second attack came on. But she was not expecting the complication which occurred. On the inside of her heart a clot formed where the coronary occlusion had interfered with the circulation of the muscle. The clot broke off and lodged in the left femoral artery, and she had excruciating pain. In the very moment that that happened, she completely lost all hope that we could do anything to help her. A very important point that we must bear in mind when talking about euthanasia is that doctors have to be sure, whatever they are doing, that the patient has lost hope otherwise patients will always be hoping that something will turn up to help them. That poor, much loved lady sought my eyes—I was always teaching medical students about the importance of eye contact—and made it clear to me that the condition in which she found herself must not go on. It was up to me to arrange that it would not go on. And we built up her dose of morphine and heroin, and other compounds.
That case highlights the report's important recommendations that palliative care should be available and that research into pain relief and symptom control should be adequately supported. I believe that even youngish professors should be well acquainted with what is feasible in the revolution that has followed that begun by Dame Cicely Saunders.
The third case is much more complicated and I do not know what your Lordships will think about it. It involved a very senior medical man who thought that he had pneumonia but found to his distress that he had a growth in his liver. He was conscious that that growth was growing and interfering more and more with his breathing. He was also very conscious that there was a high probability that one day the growth would burst out of the capsule of his liver and there would be a flood of haemorrhage into his abdomen.
I knew that man very well and went to see him just before catching an aeroplane to give a lecture in America. He told me--in circumstances when I could not do anything about it because the car was waiting at his gate to take me to the airport and away—that he had provided himself with three large injections of heroin and that if he got the pain in his liver he was going to give them to himself, by himself, at home—one, two, three. His reasons were, first, that he knew that it would stop the pain and give him a chance to call his children to his bedside before the haemorrhage carried him away. Secondly, he knew that if he was admitted to the hospital where he was a consultant, there would be a terrific disturbance and he would be given many pints of 1380 blood and he felt that as he knew he was a hopeless case, that should be denied. However, I also recognise—I hope that other members of the medical profession will forgive me for saying this—that that great man did not want to be put in a small room, out of control of his own destiny. He had made a sort of advance proclamation, declaration or directive of his own to himself, as a doctor taking care of himself. It was an obvious form of euthanasia suicide.
That case makes me conclude my remarks by saying that I fear that there are still complicated cases which cannot be solved by the deliberations of a committee. I am sure that in the future we shall be returning to tribunals of associations, involving the British Medical Association and associations of physicians, surgeons, midwives and nurses and so on, to try to find ad hoc answers to complex individual cases.
I hope that your Lordships will allow me to withdraw, because I have just heard that my daughter-in-law is to have minor elective surgery, and my grandchildren are asking that the grandfather go back and make them supper. So I hope that your Lordships will excuse me from attending the closing part of the debate. I shall read it with fascination.
§ 5.40 p.m.
§ Lord Colwyn
My Lords, I am sure that we all wish the noble Lord, Lord Butterfield, well in the next couple of hours. I regret that I cannot follow the noble Lord with personal examples of near exposure to possible euthanasia because as yet such situations do not arise in the dental surgery.
As advances in medical science lead to an increased ability for new technology to look after patients, treatment decisions become more complex for doctors, for patients and for their families. That has brought about a change in attitude to the role of those making the decisions about healthcare and in some cases a compelling argument for the voluntary ending of life. The ability to prolong life in extreme circumstances can now subject the terminally ill to months of dependency upon the technology—causing suffering to both the patients and those close to them.
No carer has the right or the responsibility to use complex medical technology on every patient in every situation, and it is the concern that some patients are being over-treated which has perhaps been in some way responsible, along with the Tony Bland case and that of Dr. Cox, for the setting up of the Select Committee and the report which we are considering.
The committee agreed that competent patients should be involved as much as possible with the decision-making process to the extent that advance directives to assist healthcare teams should be encouraged, not by making them compulsory, but by the development of a code of practice within the faculties and colleges so that doctors are informed and reminded of their responsibility to their patients: to treat them in a way which accords with ethical standards.
The practice of euthanasia was rejected by the majority of those who gave evidence to the committee. The Department of Health and the Home Office, various medical and nursing bodies, the BMA and the RCN 1381 have all expressed their opposition to the necessity of killing the patient in order to kill the symptoms. Although effective pain management measures have been available, misconceptions among health professionals in the past have also led to the under-treatment of some patients. There was some hesitancy among doctors and nurses about providing the necessary degree of pain relief because of the concern about drug tolerance and addiction or fear of shortening the patient's life. Numerous studies have shown that psychological dependence occurs only rarely in cancer patients receiving narcotics for pain. It is now emphasised that the relief of physical and mental distress must be the first aim of treatment at the end of life.
I listened with interest to the noble Earl, Lord Listowel. I am aware of the fact that the Voluntary Euthanasia Society believes that the situation in the country at present is very different, claiming that 79 per cent. of people were in favour of euthanasia. I think that the committee felt that its question,Would you like medical help to a peaceful death?",might well have favoured the response which was obtained. I agree with the BMA that the,willingness by society to supply or condone euthanasia will merely confirm the patient's sense of worthlessness, resulting in a society where individuals are not deemed valuable unless demonstrably useful. The healing role of doctors would be compromised and pressures put on patients to choose death for the sake of others".It is impossible to set secure limits on voluntary euthanasia without putting undue pressure on vulnerable people to seek this way out of their increased disabilities, distress and loneliness. The committee believed that the message which society sends to vulnerable and disadvantaged people should not, however obliquely, encourage them to seek death but should assure them of our care and support in life.
Many potential patients are worried that any suffering will be prolonged by over-zealous treatment. In his Cassell lecture in 1993 to the faculty of law at Stockholm University, the noble and learned Lord, Lord Goff of Chieveley, thought that one solution to euthanasia was a development and widening of the hospice service. With the kind help of Robert Twycross, the Macmillan Clinical Reader in Palliative Medicine, I visited the Sir Michael Sobell House in Oxford and was tremendously impressed with the treatment and facilities for patients. I met several patients, some of whom had only a short time to live. Their cheerfulness and attitude to what was left of life is an impression which will remain with me for many years. Although there are nearly 200 centres working with many more community and home care teams, it has been suggested that hospice-type care is not available to the vast majority of dying patients.
In his Upjohn lecture at the Royal Society on 25th April, Ian Kennedy, Professor of Medical Law and Ethics, Head and Dean of the School of Law at King's College, claimed that the law was not at all satisfactory when life and death are in the balance, with a charge of murder being the consequence of breaking the law. He 1382 made a comprehensive case for doctor-assisted suicide, and stated that hospice care does not always succeed in easing the pain and burden of dying.
We have heard from my noble and learned friend the Lord Chancellor on mandatory life sentences. At present, the deliberate taking of life is categorised as murder, and the courts have ruled that doctors are not entitled to any special consideration. A doctor acting with the intention of taking a patient's life can claim no special privilege, and must be prepared to face the closest scrutiny of the law. However, I would ask the Government to look carefully at the committee's recommendations on mandatory life sentences.
I endorse the recommendation that there should be further research into pain relief and symptom control so that the standard of palliative medicine that many of the committee saw in the hospices can become more available in hospitals and the community.
There is a need to disseminate the principles of palliative medicine which have developed within the hospice movement. The principles of good palliative medicine are an essential part of every doctor's practice and should be taught at undergraduate and postgraduate levels. Death has been traditionally represented as a failure of medical effort, to the extent that attempts to extend life were often made regardless of the circumstances. Such views are undergoing reappraisal as health professionals respond to patients' claims to make some choice among the treatments on offer. Nevertheless, many patients still fear that modern medical technology will be used to prolong their dying. Training must include the importance of listening to patients.
Doctors have a duty to try to provide patients with a peaceful and dignified death with minimal suffering. To put an end to a life, with a deliberate intention to kill, is too fundamental to the law and to society to be negotiable in any terms.
I am delighted that the Government agree with the committee on the importance of palliative care. Their response confirms the growth in the provision of those services within NHS palliative care units, hospitals, nursing homes and at home, often with the help of the excellent Macmillan nurses who are, I believe, funded entirely independently.
The Standing Medical Advisory Committee and Standing Nursing and Midwifery Advisory Committee report recommended that all patients needing palliative care services should have access to them, and that the principles of the good practice of palliative care—stimulated by the voluntary sector—should be incorporated at all levels in the NHS. They also recommended an expansion of education programmes in palliative care to assure continued support for higher medical training programmes and advanced nursing studies.
I am aware of an increase in funding to £35.7 million in 1994–95 and of help towards the cost of drugs in hospices. But can my noble friend say whether there is likely to be any new initiative on funding for palliative care as a result of this report?
In conclusion, perhaps I may also congratulate our chairman the noble Lord, Lord Walton, on his excellent 1383 stewardship of the committee and Mary Ollard and her assistant Jennie Morgan on their organisation and, among other things, complete control of the paperwork which when I measured it last week was over 24 inches high, or 32 inches if one includes the books. I commend the report.
§ 5.50 p.m.
§ Lord Robertson of Oakridge
My Lords, I should like to say, first, why I welcome the report and, secondly, to mention one main area of anxiety. I believe that paragraphs 237 to 239 are the most crucial. In paragraph 237 the committee recommends that there should be no change in the law to permit euthanasia. It also states its belief that the issue of euthanasia is one in which the interest of an individual cannot be separated from the interest of society as a whole. In paragraph 238 the committee states that it did not think it possible to set secure limits on voluntary euthanasia. As the committee saw during its visit to the Netherlands, voluntary euthanasia all too easily leads to involuntary euthanasia. In paragraph 239 the report points out that the legalisation of euthanasia will cause vulnerable people —that is the elderly, the lonely, the sick or the depressed — to feel pressure, whether real or imagined, to request early death.
These are just the kind of considerations that last year led me to suggest that the terms of reference should be altered to include the effects on society as a whole of any recommended changes. I am grateful to your Lordships' House for agreeing to that amendment, and to the committee for putting it into effect. Of course, it might well have put that into effect without my amendment.
I welcome the committee's clear recommendation that legislation to permit euthanasia should not be introduced. Its most deadly result would have been a downgrading of our attitude to the elderly or the chronically sick, as has been seen in Holland. The reason why I say that is because we all shrink from killing another human being. We tend to convince ourselves that the victim is, to coin a phrase, "not quite a person" and is disposable if he becomes a nuisance or a burden to others. This is what we have done with abortion, and I fear that we might do it again with euthanasia. The committee did well not to lead us down that path. The test should never be whether the patient is worth the treatment but rather whether the treatment is right for the patient.
My main area of anxiety is the position of advance directives. Several noble Lords have spoken about that today, in particular the noble Lord, Lord McColl of Dulwich. The committee commends the development of them and goes on to suggest what they should and should not contain. As far as that goes, I have no serious quarrel. What the committee did not resolve was the difficult question of the legal status of advance directives and the legal framework in which they are to be operated.
Most of the evidence submitted to the committee appears to have been against legalisation for advance directives. The case against legislation is strong but legislation may be unavoidable if the situation is not to 1384 get out of hand. Two questions need to be faced. 'The first is: what would be the position of a doctor who in good faith feels obliged to apply medical treatment in contradiction to a view expressed in an advance directive? The second is: what would be his position if he withheld life-saving medical treatment because it had been ruled out in an advance directive and the patient died as a result?
I believe that doctors are entitled to have Parliament's guidance on those two questions. My own views are similar to the evidence given by the Department of Health on 20th April 1993, in particular that an advance directive may be of help to the medical team attending the patient. Furthermore, an advance directive should not be legally binding and should not exclude a judgment by a doctor caring for an incompetent patient that the advance directive should not be followed.
It is of fundamental importance that within the framework of the law. doctors must be allowed to act in good faith in accordance with what they feel is medically in the best interest of their patients. It is therefore extremely worrying that- in the context of "living wills", the Department of Health has apparently ruled (I quote from a letter from the Parliamentary Under-Secretary of State for Health to Dr. Michael Dulake dated 22nd December 1993):When a health professional retains a conscientious objection to the course of action for which authority is given, he or she must relinquish responsibility for caring for the patient, allowing another to take over responsibility".I should be grateful if, in summing 'up, the Minister would indicate whether the view expressed in that letter is consistent with that of Her Majesty's Government.
We shall have to look very closely at the proposed code of practice as regards what it contains and how it works out in operation. Otherwise advance directives could become a Trojan horse. Without Parliament being consulted, we could find ourselves faced with a fait accompli, with euthanasia virtually legalised; a situation which would be hard to reverse. With that reservation, I generally welcome the report.
§ 5.55 p.m.
§ Baroness Flather
My Lords, I was enormously privileged to be a member of the Select Committee. It was a personally enriching experience. It was a journey through many vague, confused and conflicting thoughts and a considerable amount of clarity was achieved. There are doubts on the edges of all our minds because we have not resolved everything. With subjects as difficult and emotive as this we shall never resolve all our doubts. I shall share one of those doubts with your Lordships.
I wish first to pay tribute to our chairman. I know that it is customary to do so but the noble Lord, Lord Walton, was a model chairman. He was considerate., thoughtful and extremely diplomatic. He brought all of us together and without his skill we should not have managed to do that in the way that we did. I thank the noble Lord for that.
I was pleased when I was appointed to the committee, More than one Member of your Lordships' House said 1385 to me, "Of course, you are totally pro-euthanasia, aren't you?". But as I walked down the corridor some other Member said to me, "I know that you are totally against euthanasia". I was delighted because they were as confused as I was. I had not cleared my thoughts on the subject and I was pleased about that. Had I had fixed views I should not have liked to be a member of the committee. It was of great value to work through the stages with wonderful people such as the most reverend Primate and others and come to our various conclusions.
I believe that the desire for euthanasia results from a fear of medical intervention beyond what we would like to see. It also results from a fear of pain. Today I read an article in The Times written by Dr. Sherwin Nuland. He writes that he would like to die at home and that no specialist will tamper with his dying process or use their technological toys. Many of us have sympathy with that thought. However, when we are talking of the technological toys, the medical advances and the way in which they are causing fear we must not forget what dying was like prior to that. It is easy to forget that dying was difficult and painful. There are still countries in which all the technological toys are not available and there people must die without medical help and assistance. They do not die beautifully and they do not die in great glory. They die in pain and suffering. I hope that in our desire to stop ourselves going in one direction we shall not go overboard in the other direction and say that we do not require such medical intervention.
I believe that perhaps we do not sufficiently train our care teams to look at the whole person. That has been mentioned already today. Clearly, it is essential that after a patient has been admitted to hospital and has received emergency treatment the needs of the whole person must be assessed in order to see what is required and they should not carry on trying to deal with one aspect of the illness which is most apparent at that moment. It is much easier to pick on the main illness and say, "Right, we will deal with this. We will do everything possible to relieve the person of that illness". But what about the whole person? Will that person survive and if he does, will he have any quality of life? To me, that is one of the most important factors.
I am very much in favour of advance directives because I believe that they enable the patient to take a part in the decision-making process. If I am competent, an advance directive cannot take precedence over what I feel at that time. The advance directive becomes valuable at that point in time when I am not competent to give my view personally. I wish to take issue with my noble friend Lord McColl. He mentioned a patient who needed a colostomy. Surely at that point the patient, especially as she was young, was competent to say whether or not she wanted the treatment. Surely an advance directive cannot supersede a competent patient's view. One cannot say, "I will write a paper and that will take over from my competence". That paper, form or whatever it is must be used to express my views to the doctor at a time when I am not competent to do so. That then puts forward the view that I had when I was in a position to give it. That is extremely valuable.
1386 For the same reason, I should not like advance directives to be legally binding. If I were competent and expressed a view and the doctor then told me that I was wrong for a number of very good reasons, it may be that I would decide to change that view. I would not then stick to the view that I had held. If advance directives are legally binding, even if the doctors or the care team felt that my view did not represent the perfect solution and was not in my best interests, it would not be possible to deviate from the view expressed in the advance directive except under very restricted conditions, I assume, or possibly not at all.
Therefore, I believe that we should bring forward a code of practice to deal with advance directives. I commend paragraph 267 which recommends that those directives should be renewed or reaffirmed, perhaps at five-yearly intervals, so that they are seen to represent the current wishes of the patient, rather than a view that was held many years ago.
The second point with which I have some difficulty —and it has been spoken of extremely well by the right reverend Prelate the Bishop of Oxford and the noble Baroness, Lady Warnock—is the double effect. I understand absolutely and agree with all that they are saying about that, However, there is one aspect of double effect on which they did not touch and with which I have difficulty; that is, the "patient's best interests". If the patient is incompetent and is given a cocktail of drugs which might have the double effect of shortening that patient's life, how can it be said that it might not be better to terminate that life since the patient is suffering? Would that not be considered to be ultimately in the "best interests" of the patient?
I do not support euthanasia. I do not support that form of action. However, I have difficulty in reconciling the fact that that may well be in the best interests of the patient at the time. The noble Lord, Lord Butterfield, has given us very good examples of situations that may arise where there may be a conflict between the best interests of the patient and the wish to follow a course of action which does not go down the route of euthanasia. Those are the only two points which I wish to place before your Lordships.
§ 6.5 p.m.
§ The Earl of Cork and Orrery
My Lords, the House owes a considerable debt of gratitude to the noble Lord, Lord Walton, and his admirable committee for this no less admirable report. I hope that I may attract a small fraction of gratitude on the grounds of brevity for I have very little to say. There is only one point that I wish to make, which may amount to a small footnote to the report, which is drawn not from the past or the present but from the future.
There is before the House, in theory at any rate, the Medical Treatment (Advance Directives) Bill. It has received a First Reading, although it may go no further. The noble Lord, Lord Allen of Abbeydale, who sponsored that Bill spoke about it at some length.
§ Lord Allen of Abbeydale
My Lords, the Bill is not before the House at the moment. It fell at the end of the Session, and I have not reintroduced it.
§ The Earl of Cork and Orrery
My Lords, I am grateful to the noble Lord for that intervention. I was not entirely clear about the stage that that Bill has reached.
That was an effort to construct a Bill permitting voluntary euthanasia. I believe that the Voluntary Euthanasia Society was responsible for that Bill. In evidence it said that it has prepared another Bill, if not two Bills, and earlier in the debate the noble Lord, Lord Walton, said that the committee had not seen either of those two Bills. Therefore, one must suppose that the Bill sponsored by the noble Lord, Lord Allen of Abbeydale, represents the state of the art, if that is the right term.
It is worth considering what is the state of the art, because I do not believe that that subject will fall out of sight after this afternoon. The noble Lord, Lord Allen of Abbeydale, appeared to suggest that another Bill may be brought forward. I should like to sound a small note of warning. One of the noble Lord's great contentions was to the effect that that Bill contains safeguards for the patient. I invite your Lordships to consider what those safeguards are. They are contained not in the Bill itself but in the advance directive which is attached as an integral part of the. Bill.
That advance directive was drawn up years ago and it has been brought up to date, I think, by the Voluntary Euthanasia Society. I have a copy in my hand. A person who becomes a candidate for voluntary euthanasia must go through two stages. In the first stage he must become a qualified patient. The various conditions which must be fulfilled are set out. There is a paper which he must sign to the effect that if he is suffering in various ways he will become a qualified patient. From that moment on. if he fulfils two or more of those conditions, he is qualified. One would suppose that he will be under medical care. The next stage which lies ahead is progress forward to what may or may not be his ultimate demise and disappearance from the scene.
Let us suppose that he is an incompetent patient. Such a patient must be most vulnerable and in most need of protection against any mishap befalling him as a result of the provisions contained in this Bill. He may be admitted into hospital, possibly after a severe motor accident and be in a state of coma. Then under an anaesthetic he may suffer an anaesthetic shock and in such circumstances be "qualified" under the terms of the advance directive. He cannot speak and, therefore, he is an incompetent patient.
'What now stands between that patient and the decision as to whether he should be admitted to the ranks of the euthanasia victims or beneficiaries? The answer is to be found at the beginning of the directive in the following terms: the physician must apply to "two independent physicians —I take it that they will be independent of the first, and that would make three of them altogether—one of whom must be a consultant, who shall be of the opinion, in the words of the patient (as he signed the document years ago when he was in good health) that he is:unlikely to recover from illness or impairment involving severe distress or incapacity For rational existence".1388 That is the safeguard, and the only safeguard at such a late point, which stands between the patient and a mistaken demise, which could happen.
What does it amount to? First, the doctor has to find two other doctors. They do not have to have any particular qualifications, except that one of them must be a consultant. But a consultant in what? In anything? It has nothing to do with the condition of the patient. Moreover, such doctors do not have to know the patient —they may never have heard of him before—and they do not even have to know the physician who has called them in for consultation. Admittedly, some of those points could be dealt with at a Committee stage of such a Bill, but all of them collectively could not be.
What are those doctors asked to do? The physician who calls the other two doctors in for advice may say to one of them, "I have a patient here. He is a man in his early eighties. He has had a nasty accident and is in a comatose state. I do not think that he has much chance". He then gives the doctor a few more particulars, and asks, "Do you think this chap has a good chance of survival?" The other doctor says, "No, I don't think so". That opinion, if it is repeated by the third doctor, is a death sentence. But it is only an opinion. Are the opinions of doctors, or indeed of any doctor, infallible? Doctors are people and they can make mistakes. I am sure that it is quite within the bounds of possibility that every Member of your Lordships' House has heard of a mistake made by a doctor.
What is required at that point is a statement from an expert saying, "This man will not recover"; in other words, a statement of clinical fact. But that cannot be given. It is quite impossible for anyone ever to make such a statement in those circumstances. Life is not like that. Similarly, death, as most of us probably know, is not like that. Therefore, on those two opinions—which. after all, are only statements of opinion of what is likely to happen and no more than that—such a patient can be allowed to die.
No one has thought about confronting such a danger. It is all very well—and I say this with all due respect to the noble Lord, Lord Allen., who says that the directive is full of safeguards—but there is no safeguard there at all. Indeed, in many cases it is a prescription for an actual putting to death of a patient. That is the product of the Voluntary Euthanasia Society made in honour, sincerity and compassion. I am perfectly certain about that fact. However, the society has been in existence for 60 years and the directive is the nearest thing that it has managed to get towards a safeguard in any of its legislation.
Moreover, not only is the directive as near as the society has managed to get, but also it is as near as it is ever likely to get. It is not possible to get any nearer. There are various reasons for saying that, but there is. one reason that is valid in every case. If a mistake is made—by which I mean that the patient is allowed to die when in fact, if he had only been able to speak, he would not have agreed that he wanted to die—that patient is the only witness to his own state of mind and he is dead.
§ 6.15 p.m.
§ Lord Jenkins of Putney
My Lords, it was my intention to make a long and argumentative speech to the House this evening as a longstanding member of the Voluntary Euthanasia Society. However, I have decided not to do so. I am still in favour of voluntary euthanasia, but I shall not make the same speech about it that I had intended to make for the following reason. I happened to come across the Written Evidence to the committee and therein found evidence from the Royal Marsden Hospital. I was happy to see that the leader of that delegation supported what he called the "legalisation of euthanasia". I was especially happy about that because it so happens that my wife died of cancer in that hospital on 30th January this year. Therefore, I have some close, personal experience of what it is like to be in that situation, not as a patient but as someone sitting by the bedside.
When the doctor asked me to go and see him after my wife had been in hospital some little time, he told me that she was seriously ill. I knew what that meant. I returned to the ward and wondered how I should break the news to my wife. However, I was surprised to find that my wife was already aware of the situation and that she had been aware of it for at least a fortnight before I was informed. She had refrained from telling me that she knew. She was a strong minded and courageous woman and she knew that I would find out in due course.
My wife also knew something about the treatment that she was receiving. She said to me, "They are getting it about right". I asked, "What do you mean?" She replied, "They are keeping me out of pain but they are not overdoing it". She knew that she was getting a mixture of drugs. I suppose that is what they mean by the "double effect"; in other words, what the doctor does is to give the patient a sufficient amount of medication, though there is no certainty of the date or even of death itself. However, one knows very well that when doctors who are used to dealing with cancer come to the conclusion that it will not be very long, then it will not be very long.
As I said, my wife thought that the doctors were getting the treatment about right. In fact, I did not ask the doctors about it. I felt that it was wiser not to do so. It was fairly clear to my wife—and certainly to me—that what was happening was what is known as the "double effect": you say that you are giving the medicine to the patient to relieve him or her of pain, but you know that in the course of doing so you are terminating the length of his or her life. My wife said to me, "I would rather have a painless week before I die than a painful fortnight". That is what it comes down to. How can you ask a doctor to judge whether or not he is doing that by intent? It seems to me that the burden on the doctor is quite intolerable. He has to decide how the treatment is to be varied in order to keep the patient out of pain but, at the same time, he has to ensure that he does not overstep the mark and find himself being regarded as someone who has committed murder. That can happen to a doctor.
1390 All I want to say about that experience is that, happily, my wife died peacefully, without suffering and serious pain, a fortnight after the doctor told me that she was seriously ill. What follows from this? I think that we need voluntary euthanasia. I hope that we shall not be put off by words. The word "euthanasia", as has been said, has been used for a long time and sometimes it has some rather unpleasant overtones. When one comes to think of it, the staff in hospices and any one practising euthanasia have the same object in view: it is to make death easier than it otherwise would be. They are both working in that direction. They are closer than is sometimes made out. They are not in total opposition to each other. The object is identical but the methodology and the verbiage is different.
We ought to try to approach this matter reasonably surely. If it is possible to say rationally in a society that in war killing each other is not murder, and no one will be had up for it except of course in the case of war crimes, and we can devise a system whereby we say, "No one has committed any murder", are we saying that it is impossible and beyond human intelligence to devise a means whereby one can say that a doctor whose sole object is to assist somebody to die peacefully is not in the same category as someone who bludgeons someone else to death? Of course it could be done. One can be pretty sure that taking this rational step will not undermine the morals of society and will not result in everyone killing everyone else. Quite frankly, the situation is a nonsense.
The committee arrived somehow at unanimity. I believe it was my noble friend Lady Jay who told me it was probably nearer a consensus. The committee arrived at a consensus and it ought to be possible to approach this problem afresh and to recognise the type of society in which we are living in which people are living longer but are needing to be assisted out of life when there is no alternative. If we approach the matter from that point of view—even taking account of the hostility which the committee has experienced as regards some aspects of voluntary euthanasia—and make sure there are plenty of safeguards, and that voluntary euthanasia is only used when it is proper for it to be used, I think it is not beyond human ingenuity ultimately to change the law to make an exception for the occasion when it is proper that people shall be assisted to leave this life in dignity and in peace.
§ Lord McColl of Dulwich
My Lords, before the noble Lord sits down, would he accept that as doctors we do not have a problem in relieving pain of people dying of cancer? It is quite easy to set up a drip and regulate the dose so that it is precisely the right dose to relieve pain but not to kill. If we do that, we find that patients often live longer and in a much more comfortable state.
§ Lord Jenkins of Putney
Indeed, yes, my Lords, but the patient eventually becomes terminally ill. All I am asking for is that that shall be recognised. If that were recognised, it would relieve the doctor of a responsibility which he ought not to have because he knows that the patient is going to die. He is making the judgment as regards the mixture which is being 1391 administered. We cannot continue to have the situation in which he has to deny that that is what he is doing because at the moment it is against the law. It ought not to be against the law and it is up to us to make sure that it is not against the law.
§ 6.25 p.m.
§ Lord Hayhoe
My Lords, like so many others who have spoken this afternoon I welcome this debate and the Select Committee's report. At a time when politicians and the art and practice of politics are subject to such vicious and often unfair abuse and criticism, it is good to acknowledge, is it not?, the great achievement of this Select Committee of Parliament in presenting a unanimous report. The ability of the chairman and the Members of his Committee to reach those conclusions is in some ways a vindication of the political process. I certainly see it as such.
I recall well the alarmist stories that were around last year, and in particular the headline in the Observer of last November, "Euthanasia by the back door". That article appeared to be very authoritative but I should think it was intensely irritating to the Members of the Committee who knew what was happening in that committee. I am glad that the report has rejected the legalisation of euthanasia and that the Government strongly support that rejection.
I should at the outset declare an interest as president of Help the Hospices which has been referred to by my noble friend the Duke of Norfolk and others. I believe the hospice movement would have been seriously undermined and compromised by a proposal for or actual legalisation of euthanasia. Thank God it is not going to happen.
I noted the comments of the noble Lord, Lord Walton, when he was speaking of Holland where euthanasia is closer to being legalised than perhaps anywhere else in Western Europe, and where the hospice movement is underdeveloped. It is no coincidence that those two things go together. Of course I cannot mention the hospice movement without paying my tribute—as so many have already in this debate—to Dame Cicely Saunders. What a remarkable lady and what an honoured place she will have when the 20th century history of medicine and patient care is written.
My noble friend the Duke of Norfolk very properly referred to the sterling efforts of his gracious wife. The money raising that she accomplishes, the encouragement and the wise advice that she gives to so many in the hospice movement is invaluable. But these voluntary efforts must be backed by the National Health Service. I am glad that the report of the committee is so clear and specific in the recommendation which I think has been referred to more than any other recommendation in the course of this debate; namely, paragraph 276. I shall quote selectively from it:Despite the inevitable continuing constraints on health-care resources, the rejection of euthanasia as an option for the individual, in the interest of our wider social good, entails a compelling social responsibility to care adequately for those who are elderly, dying or disabled".I hope we can all say "hear, hear" to that. Paragraph 276 continues, 1392high-quality palliative care should be made more widely available by improving public support for the existing hospice movement, ensuring that all general practitioners and hospital doctors have access to specialist advice, and providing more support for relevant training at all levels".The welcome that one can give to the increase in government support to the hospice movement in recent years must be coloured a little by a hope that the rising trend of spending will continue. But the "top slicing" system—the ring fencing of the financial support for hospices—is, I understand, being replaced by the contracting system. The Department of Health has recommended that three-year contracts be negotiated between the purchasing authorities and the individual hospices.
But I am advised that many hospices in England, Wales and Northern Ireland are finding that the health authorities are unwilling to go beyond one year. This is the point made so clearly by my noble friend Lady Platt of Writtle—that to plan reasonably ahead one needs longer certainty about the finances which are to come. I therefore urge my noble friend the Minister—whose personal sympathy, concern and support for the hospice movement is greatly appreciated. by all who are involved with it—to take a close look at what is happening and to. see what remedial action could be taken to give greater certainty to those involved, particularly within the voluntary hospice movement.
The sectors involved are individual hospices, the Help the Hospices movement, the Marie Curie Cancer Care, and the Cancer Relief Macmillan Fund. A wealth of voluntary effort is devoted to these causes which is raising substantial sums of money and providing high quality compassionate care both for patients in the hospices and also for the larger number —perh.aps double the number—who are given palliative care in their own homes. One must consider the hospice movement not merely in terms of the real estate element but also in terms of its outreach within the community which is so valuable.
The report of the Select Committee also stresses the need for more research into pain relief and symptom control. I am glad that the Government have at least given a nod of support to that. However, as ever in these matters, it is not so much the voice which is important but whether money and resources will follow that voice.
The need for enhanced training of the healthcare professionals involved is also underlined by the report. Again, I welcome the Government's positive response. An enormous amount has happened since I first came into contact with the hospice movement, largely through the introduction of my noble friend the Minister who is to reply to the debate. She will remember the visit that we made together when she was chairman of the Brighton Health Authority. That was in the mid-1980s, but at that time the training of doctors had very little content concerned with palliative care, pain relief and symptom control. Much has improved since then, and more improvements are no doubt required.
I turn to the question 'which has been raised by a number of noble Lords contributing to the debate—mandatory life sentences. My own inclination is to move towards the committee's view rather than the Government's view as expressed by my noble and 1393 learned friend the Lord Chancellor. But in politics timing is crucial, if not of the essence. I am persuaded that now is not the time to be bringing forward to Parliament a measure to amend the present law in the light of the recommendations of the Select Committee and indeed of other committees of this House.
The Select Committee's report and the Government's response have provided a great boost for the hospice movement and for high quality palliative care. There is a recognition in paragraph 136 of the report that,hospice is a philosophy not a building".I end by quoting from the evidence submitted by the National Council for Hospice and Specialist Palliative Care Services. It said:Palliative care:Such civilised and compassionate care should be widely and generally available, and that will best be achieved by fruitful co-operation and partnership between the National Health Service and the voluntary sector. May it continue to expand and improve.
- —affirms life and regards dying as a normal process;
- —neither hastens nor postpones death;
- —provides relief from pain and other distressing symptoms;
- —integrates the psychological and spiritual aspects of patient care;
- —offers a support system to help patients live as actively as possible until death;
- —offers a support system to help the family cope during the patient's illness and in their own bereavement".
§ 6.34 p.m.
§ Baroness Masham of Ilton
My Lords, I must begin by congratulating the chairman and members of the Select Committee on producing what I am sure many of your Lordships will agree is a very satisfactory report. There is no shortage of interest in the work of the committee, and from the volumes of evidence printed it appears that it was able to take a wide cross-section of views and representations during the course of its deliberations. The Committee must have worked very hard indeed.
The committee's recommendations are particularly apt and address some of the problems that have arisen as a result of the advances made in medical technology and the difficult decisions regarding the provision of treatment. I should like to draw attention to the first and perhaps strongest recommendation that there should be no change in the law to permit the practice of euthanasia. I welcome that recommendation of the committee and hope that the Government will listen to the wisdom therein.
Contrary to what the Voluntary Euthanasia Society states, there is no overwhelming desire, either in the country or indeed in Parliament, to see the legalisation of euthanasia. The Voluntary Euthanasia Society repeatedly quotes an NOP poll which claims that 79 per cent. of people in this country support voluntary euthanasia. However, as the editorial of the Lancet recently stated, such a poll is thoroughly misleading, for the question asked was:Would you like medical assistance to a peaceful death?In comparison, parliamentary support for euthanasia continues to reduce. A recent independent survey by Access Opinions in another place showed that support 1394 for euthanasia has reduced from one in three to one in five. The medical, legal, ethical and social arguments against the practice of euthanasia are particularly strong, and I am encouraged that noble Lords and Members of another place are resisting the view of a minority to change the law.
I hope that this report shows that there is no doubt that as a civilised society we cannot tolerate the practice of euthanasia. For the weak, the infirm, the elderly and the chronically sick, the provision of euthanasia would not relieve suffering but rather increase it. Their last years would be lived worrying about whether they were a burden to other members of the family: should they request euthanasia and so relieve the family, friends and even society of the burden that they have become?
Furthermore, some would be fearful that their lives would be ended without their request, for as they found it more difficult to communicate and ultimately became incompetent, a decision to shorten their life could be made without their request. As the committee was made aware, there is evidence to show that this is taking place in the Netherlands, according to the Dutch official Remmelink Report. As stated by His Grace the Duke of Norfolk, in 1990 there were more than 1,000 deaths in the Netherlands from euthanasia without the patient's request. Such startling figures should provide a warning that even voluntary euthanasia cannot be tolerated.
I should also like to draw the attention of the House to the recommendation in paragraph 287, namely that the rejection of euthanasia as an option for the individual entails a compelling social responsibility to care adequately for those who are elderly, disabled or dying. A large number of the elderly are healthy, active and capable of living independent lives. However, there is no doubt that health problems increase with age, along with the demand for and dependence on external care. The challenge we face today is to develop a range of services and facilities that meet the growing and changing demand for care against a socio-economic background that is forcing the Government to reduce expenditure. Our aim must be to create a range of care provision so that anyone in need of care can call on services appropriate to his or her specific requirements.
Particular attention should be paid to the specific needs of women. They are clearly in the majority among the elderly. Furthermore, they are especially vulnerable. More women live alone than men of the same age and their income is usually far lower. However, for all the elderly, whether living alone, with relatives, or in institutions, the care that is provided must enhance the dignity of the individual, and I welcome the report's categoric support for that.
For those who are dying or coping with the difficulty of a terminal disease, I am glad that the committee commended the work of the hospice and palliative care services in this country. Many noble Lords have been involved in the movement for a long time and have witnessed the excellent provision of care which the movement gives. I myself was one of a number of your Lordships who went to see Trinity Hospice in Clapham in action earlier last year. I have also visited other hospices in Sunderland, Leeds and Hackney. The 1395 standard of care and the dedication of all those involved was most impressive and the commendations received are richly deserved.
The multi-disciplinary approach which the hospice movement is pioneering is to be applauded and sets the standards for the future. Instead of a purely clinical approach to all problems, attention is also paid to the social, psychological and spiritual needs of the patient.
Perhaps the most outstanding achievement of the hospice movement is the advances made in the relief of pain. In a letter to the Guardian last week, Jean Gaffin, the Executive Director of the National Council for Hospice Care, stated,Those working in hospice and palliative care services … know that almost all pain can be relieved and that it can always be reduced".In a lecture last year to Peers and Members of another place, at which many of us were present, Dr. Anthony Smith, the Director of Education at St. Christopher's, stated that 96 per cent. of pain can be relieved and pain could be reduced in the remainder. Such advances and understanding of the workings of pain have given an increased quality of life to many as they live with a terminal disease.
However, there is still much to be done on the development of new techniques and relieving pain. Some conditions are more difficult to relieve than others, and many noble Lords will be aware that rheumatoid arthritis is one such condition.
I should like to draw the Minister's attention to one project in particular which will be critical to the development of palliative care in this country and further afield. This is the development of an International Centre for Palliative Care at Oxford. The centre will be based on the site of the Churchill Hospital where there is land available and waiting. The architectural plans have been drawn up and planning permission has been given. The centre is now seeking to raise the funds. If we are to maintain the standards of hospice care that we have set, there is an urgent need for funds to further research in this field and indeed to disseminate the information as widely as possible. I believe that the establishment of a centre at Oxford could be instrumental in enabling many to have a dignified and peaceful death even in the face of terminal illness and all the hardships which that involves.
The Association for Palliative Medicine presented a case before the committee. It was told of a 19 year-old boy, the son of a surgeon, who had advanced intra-abdominal sarcoma. Believing that nothing more could be done for his son, the father was so distressed that he requested information on how best to help his son die. Palliative care was offered and the father agreed after some negotiation. After a short time, relief was achieved and the boy was able to participate in family life for several weeks until his death. The father, a surgeon, and the mother, a nurse, could not believe that such relief and quality of life could be obtained. Since then the father frequently refers his patients to palliative care. I hope that the report will result in the further dissemination of information regarding palliative care and become a building block to further developments in hospice care in this country.
1396 Many severely disabled people who suffer pain become depressed and worried with the immense pressure on hospitals, and even doctors' surgeries, some of which have only five-minute appointments. I believe in value for money, but I also believe in a caring society. When money rules everything, excuses are found for not providing for needs and the fear of euthanasia could become as real to vulnerable people as the death camps of Hitler's regime. With the continued failure of anti-discrimination legislation for disabled people, some people can find just living difficult..
I end by saying that I hope the Select Committee's recommendations on page 57 under "Health-care Resources" will be taken very seriously by the Government and by healthcare providers and purchasers, and that young people will be encouraged to care for the less fortunate people in society. That can be stimulated by leadership in places of education and youth organisations and by religious leaders as well as by parents.
§ 6.46 p.m.
§ The Marquess of Hertford
My Lords, perhaps I may express my unbounded admiration for the committee in the enormous amount of work that it has done. I perhaps greet the report itself with modified rapture and the Government's reply to it with less enthusiasm.
I suppose that many of us have some particular fear or phobia. Some of your Lordships may remember that horrifying moment in George Orwell's book, 1984, when the hero is about to have his face pushed into a cage of rats and is reduced to begging his gaolers to do it to his girlfriend instead of to him. Another dreadful fear which I believe is quite common, although it cannot occur very often, is of falling into a coma and waking Lip to find that you have already been buried. My own particular fear is referred to briefly on page 69 of the report. In plain language, it is to be conscious and alert while completely paralysed. The report states:Recovery from the locked- in syndrome is rare and it must be stressed again that such individuals, though incapable of moving their limbs and of speaking, are sentient human beings with full awareness of their surroundings, even if dependent upon artificial ventilation, tube feeding and other life support systems for their survival".Perhaps I may ask noble Lords to think for a moment about the word "sentient". Can you imagine what people in that condition may be feeling? They do not suffer physical pain. But must they not—how can they not?—be in the very depths of despair? Do they not long for death? Even a few days in such a state would be a nightmare; a month must seem like hell.
No doubt all doctors and nurses will be sympathetic to such a patient. But even if the patient has already signed an advance directive, it is doubtful whether that alone would ensure that whoever has the kindness and the courage to turn off the life support machines will be completely safe from the present law. The safe course would be to do nothing and to let the patient continue to suffer the torments of the damned.
I do realise that there are great difficulties, moral, legal and practical, in legalising voluntary euthanasia. I certainly hope that involuntary euthanasia will never be 1397 legal. I have no legal or medical skills whatever, but there are in this House quite a lot of very clever people who could surely devise changes in the law to allow the medical profession to do what most of us hope it will do anyway; that is, simply to assist us to an easy death. One step in that direction might surely be the abolition of the mandatory life sentence for murder.
Finally, at the risk of sounding frivolous, I cannot resist commenting that I find it odd that in a largely Christian assembly very few people seem to think that moving on into the next life might be rather a good idea.
§ 6.50 p.m.
§ Lord Meston
My Lords, I join in paying a sincere tribute to the outstanding chairmanship of the committee by the noble Lord, Lord Walton. His skill and profound knowledge enabled the committee to cover a great deal of material and to produce the wide-ranging and unanimous report that is being discussed today. He helped the committee through areas in which what one person might respect as a deeply held view another might regard as unreasonable prejudice. I hope and believe that the report will provide a lasting framework for the future.
I freely confess that before joining the committee my mind was uncluttered by much serious thought on the topics that it was to consider. Personally, like most of us I suspect, I try not to think too much about the unpleasant aspects of mortality. Professionally I have spent much time arguing about what is in the best interests of vulnerable children who have a full life ahead of them. But I have spent almost no time at all in considering what might be in the best interests of vulnerable people with little of life left to them in terms of either quantity or quality.
Throughout the committee's inquiry it was necessary to distinguish between the situation of those who were terminally ill but who remained alert and sometimes in pain and those such as the PVS patients. Before the case of Bland, fortunately very few of us had had to grapple with what might be in the best interests of the permanently insensate or with whether, and to what extent, an assessment of those best interests means something more than trying to resolve what the patient would wish for himself by way of treatment and care. The committee has had to grapple with all those problems and with such question-begging phrases as "futile treatment" and "inappropriate treatment".
My own starting point was to recognise that whatever emerged had, if at all possible, to be acceptable to the doctors in the front line who have to take the decisions in most of these cases. Such decisions are taken in the light of the circumstances then prevailing and with knowledge of what is and is not possible for the patient but sometimes with little opportunity for much consultation. The outcome also had to be acceptable to the other members of the healthcare teams. It is therefore pleasing to see that the conclusions of the report seem to be acceptable to bodies such as the BMA and the RCN.
In considering the question of euthanasia, perhaps three matters seemed most important. The first was the 1398 revelation (to me at least) that those who do not have a sudden death but are terminally ill can almost certainly have a pain-free progress to death. The growth of the hospice movement and the development of palliative medicine are very reassuring for most of us in this country. But even so, good palliative care and psychiatric support are not universal, and the report contains a clear message for the Government that the funding must be found to ensure that growth and development continue.
Secondly, there was the reassurance that responsible medical care can properly involve a considered decision not unduly to prolong futile and burdensome treatment. In some extreme situations the prolonging of death is not the same as extending a meaningful life; indeed it can be the opposite.
Thirdly, in respect of euthanasia, it did not seem possible to find any other place beyond the existing law for a firm foothold on an otherwise slippery slope. The evidence of the Dutch experience was not encouraging: in the Netherlands, which apparently lacks much in the way of a hospice movement, there seems to be a gap between the theory and practice of voluntary euthanasia. One cannot escape the fear that the same could happen here, with pressures on the vulnerable sick and elderly, who may perceive themselves to have become a burden on others, and pressures on the doctors and nurses from relatives and from those who are concerned with resources.
Surely the BMA was right to fear that the practice of euthanasia would detrimentally change the way in which doctors are regarded and in which they regard themselves and would detrimentally change the relationship between doctor and patient. I do not believe that it would be possible to foresee all the repercussions of legislation on this topic, and I suspect that legislation would throw up more problems than it could solve. I therefore suggest that the committee was right not to recommend it.
In respect of advance directives, again I suggest that it is best to allow matters to continue to evolve as the committee recommended. I do not believe that to make directives binding would necessarily serve the interests of patients or their families. In the United States some statutes provide for directives to operate when there is "terminal illness", but there are problems of defining "terminal illness". The points made by Mr. Montgomery, which are set out in paragraph 211 of the report, seem to me to be compelling. It is in the nature of such documents (as with ante-nuptial agreements, which family lawyers are increasingly being asked to devise) that they require immense care in drafting in the attempt to deal with unlikely and unforeseeable events in the future.
Moreover, all sorts of people sign all sorts of documents confirming, as they do so, that they understand what they have signed. Lawyers are all too well aware that in reality such people do not always understand what they have signed. The noble Lord, Lord McColl, referred to exceptions to the enforceability of such directives—or declarations, as he preferred to call them—where pressure was improperly applied. But of course it is all too well known to lawyers that 1399 improperly applied pressure is not usually seen or detectable by those who are intended to act on the document concerned—whether that person be a doctor, a bank manager, a lawyer or anyone else.
Advance directives are, I suggest, best left as no more than guidance to doctors, the weight to be given to such documents to be assessed when the time comes to do so in the light of all the other circumstances that then prevail. That seems to be consistent with the list of factors that are set out in the Law Commission's proposals, summarised at paragraph 177 of this report.
The report deals with "mercy killing" in two succinct paragraphs, 259 and 260. That topic is best dealt with in a wider debate on the law of murder and manslaughter and on the vexed question of penalties for murder. Whatever the rights and wrongs of the case involving Dr. Cox, as the most reverend Primate reminded us, Dr. Cox could in the event be charged only with attempted murder as distinct from murder itself, because there was no post-mortem which might have established the actual cause of death before the patient concerned was cremated.
It seems to me that there are great problems in defining a separate category of mercy killer, and that a great number of safeguards would probably have to be built in to any such defence to murder before it could be effective. Moreover, if such killing is defined by reference to mercy towards the victim, it would probably not extend to ending the life of those such as Anthony Bland who are not suffering or of those whose otherwise intolerable suffering can be adequately relieved by drugs. In such cases the ending of life may be a relief to the family, the concerned carers and other people requiring the resource being used by the person concerned. But it could not be categorised as "mercy killing". Likewise, the termination of a life which it might seem quite futile to continue would probably not he covered by such a category.
A number of essentially legal issues concerned with the taking of life have precipitated the need for this report. The law has to provide clarity for the medical and other practitioners, identifying what people may and may not do and what they must and must not do. In the extreme case of Bland, the law had to have recourse to distinctions between care and treatment, although, frankly, to many people treatment can be care and care includes treatment. Both are aspects of life support and both served to support the vestiges of life in Anthony Bland. However, the lawyers on the committee have been all too aware that, although the law can provide a useful framework for grappling with these and with less extreme cases, there is no room for any professional insularity or monopoly.
The law has also to provide a mechanism for dealing with difficult or unusual cases, to resolve disputes, protect the vulnerable patient and protect the doctors and nurses. The Family Division of the High Court and the Official Solicitor have shown an ability to respond to individual cases and to reach fully informed decisions. They will continue to do so. The suggested new forum provisionally proposed by the Law 1400 Commission must not lose the expertise that already exists. We shall need to look with care at the proposals of the Law Commission when the time comes.
Unless Parliament is confident that changes are required and their consequences can be foreseen, Parliament should leave things simply to evolve, as is recommended by the report.
§ 7.1 p.m.
§ Baroness Jay of Paddington
My Lords, first I must make it clear that, although I speak from the Opposition Front Bench, this evening I do not represent the Labour Party position. I express solely my personal views as a member of the Select Committee. It was a very great privilege for me to serve on that distinguished committee and to do so in my second year as a Member of your Lordships' House. It was an experience that I valued enormously. I should like to join all the other noble Lords who have spoken in paying warm tribute to our chairman, the noble Lord, Lord Walton of Detchant, for his stimulating intellectual leadership, his patience and I might almost say dogged chairmanship, 'which enabled the committee to reach—as my noble friend Lord Jenkins of Putney described it—the consensus position that we are discussing today. Like my noble friend, I deliberately emphasise the word "consensus" rather than "unanimous" because I feel that the report has most skilfully blended the disparate views of individual members, but in doing so, it has appropriately smoothed the edges of our differences.
At this stage of what has been a very wise and thought-provoking debate it seems most helpful to be less subtle—perhaps to be blunt—and briefly to state my personal views and comment on the Government's response to the report, which I found disappointing in several ways. From my personal viewpoint, I should like to see us move towards a society in which voluntary euthanasia is accepted as an ultimate choice for anyone reaching the end of life. However, I do not believe—I emphasise this point—that we should now change the law to try to bring that about. I entirely support the first and primary conclusion of the report. But I also agree with Professor Ronald Dworkin, who has. already been quoted by the noble Lord, Lord Walton of Detchant. I found him one of the most compelling witnesses that we heard. He emphasised to us the role of autonomy and individual decision-making in matters of life and death. He put it in the context of the unique value of human life. He said (paragraph 39 of the report) that everybody accepted the idea of the:intrinsic value, the objective importance, the sanctity, if you will, of human life".But, he said, that idea led people to different choices. He went on to say (paragraph 93 of the report):I am in favour of choice because people disagree about what kind of death is meaningful for them. I, myself, believe what sort of a death is right for a particular person and gives the best meaning to that person's life, largely depends on how that life has been lived, and that the person who has lived it is in the best position to make that decision".Professor Dworkin's conclusion was that he advocated voluntary euthanasia as one choice for those people who 1401 felt that to be kept alive in a situation which they found unacceptable would be harmful to their lives as a whole, cheapening what they had valued.
If, as I do, one accepts the validity of that kind of autonomous choice, how can it best be facilitated in a compassionate and mature society? I hope that several of our recommendations, if acted upon, will make it easier for both competent and incompetent patients and for healthcare teams. Medical and nursing professionals, as we heard this afternoon, at present often face extraordinarily difficult decisions without adequate ethical guidance or codes of practice. In my view, the committee's conclusions on double effect, on limiting treatment, and on a new judicial forum to make decisions for incompetent patients, as well as its strong endorsement of the abolition of the mandatory life sentence for murder, could all ease practical, clinical difficulties and at the same time encourage a climate of open choice for patients and their relatives.
I should like in particular to draw your Lordships' attention to the recommendations about persistent vegetative state and Appendix 5 on brain stem death, which has not been mentioned this afternoon. The noble Lord, Lord Walton, and other speakers have described the importance of the Tony Bland case and the considerations of persistent vegetative state in our discussions. Paragraph 258 of the report states:We suggest that the development of a generally accepted definition of the [PVS] condition would assist both the health-care professions and the wider community, and … lead to a code of practice for the management of [these cases]".Appendix 4 is an authoritative memorandum on the differential diagnosis of PVS. I hope that the colleges and faculties of all the healthcare professionals will rapidly take forward that important area of work. I am glad that the Government's response indicates that discussions are already beginning about how to do that.
Appendix 5 of the report, which I consider most important, describes the significant history of the concept of brain death. It shows that diagnosis of a non-functioning brain stem has changed, over a relatively short period, from a hotly controversial issue to a commonly accepted definition of death. That now enables doctors to withdraw heart/lung support systems without ethical or legal concerns. Just recently we have seen how readily the general public accepts that practice, following the tragic brain damage suffered by the boxer Bradley Stone. The popular newspapers reported the damage to that boxer on their front pages and without comment noted that doctors had rapidly decided that he could not recover from coma and had switched off his life support machine.
Over the past 15 years or so, the codes of practice about brain stem deaths have grown up, ethical boundaries have shifted and, without a change in the law, society has in that context accepted a different attitude to death. Appendix 5 of the report states clearly that:death has come to be seen more as a process than an event".It is my hope that a similar approach to PVS, and perhaps to other long-term conditions, will extend codes of practice about limiting treatment, thereby extending 1402 public understanding of a shifting definition of death and extending the culture of choice about when and how death is reached.
Individual choice is most explicitly addressed in the report in our discussion of advance directives or advance declarations, whatever we now choose to call them. Again, we recommend the development of new codes of practice rather than legislation. As I have already said, I believe that, as a society, we are more able to accept the idea of change and choice in those very difficult areas if change occurs gradually through medical practice and case law and not through statutory action.
In retrospect—I alerted the chairman, the noble Lord, Lord Walton of Detchant, to what I am about to say —I wonder whether we may have been a little too restrained about advance directives. Since the report was finished I have had various opportunities to find out more about the situation in the United States, which was also referred to in the course of the debate. As your Lordships know, in several states advance directives (or "living wills" as they are often described in American) have binding legal status. I was impressed by what I learnt of how the system operates there. Of course I recognise the enormous gulf between the practice of law and medicine in the United States and in this country, and I remain convinced by many of the arguments of noble and learned Lords on our committee in regard to the difficulties of introducing any new law here. Nevertheless, for my part I believe that it may be helpful to encourage advance directives, perhaps by suggesting that we give them some immediate legal force. Perhaps that could be limited to giving people who indicate specific directives on certain categories of treatment the comfort that their instructions will be legally enforceable.
I apologise to other members of the committee for appearing to break the consensus of the report, and I must emphasise that my "afterthought" on the subject is only intended to strengthen the main thrust of our recommendation to,commend the development of advance directives".I shall be interested to learn the views of the noble and learned Lord the Lord Chancellor and other people with great legal expertise who spoke on the matter, and to see what the Law Commission proposes when it reports later this year.
I turn briefly to one or two of our more practical recommendations, which have resource implications and affect the organisation of health services. It is in those areas that I found the Government's response disappointing. As a committee we argued—as was mentioned by my noble friend Lady Llewelyn-Davies and the noble Baroness, Lady Flather—that rejecting a change in the law to legalise euthanasia led to,a compelling social responsibility to care adequately for those who are elderly, dying or disabled".As noble Lords, said, the report makes strong recommendations about extending palliative care services and supporting further research into pain relief and symptom control. But though the Government say that they agree with those conclusions, there are no definite proposals for additional resources either for care 1403 or for research. I echo the question of the noble Lord, Lord Colwyn, to the Minister and ask whether or not the Government will make a specific commitment in that area.
It is still the case that the vast majority of the 700,000 people who die each year in the United Kingdom do not have the benefit of palliative care or hospice support. The National Council for Hospice and Specialist Palliative Care Services recently noted that the voluntary sector is funding a large proportion of those services. That was a point emphasised by the noble Lord, Lord Hayhoe. He also made the point that the local contracting system makes future public funding uncertain. That situation must be addressed by the Department of Health in order that our confidence in palliative care can be sustained.
At the moment the average NHS contribution to the revenue costs of voluntary hospices is 38 per cent., but in some instances it can be as low as 10 per cent. I understand that initially the Department of Health intended to match revenue funding on a 50–50 basis, and that was achieved in Scotland. But the Government response to the Select Committee contains no definite commitment to improving the position in England and Wales.
Overall, although the tone of the official response is generally supportive, there is little to suggest an active government role in ensuring that the recommendations will become realities. In the light of the current controversy about age discrimination in healthcare it is particularly unfortunate that the response relies, rather lamely, on the Patient's Charter as a guarantee of patients' rights to equitable healthcare at every stage of life. If, in practice, elderly people are badly treated by the NHS market, if contracting does not allow more resources for pain research or hospice care, then public demand for voluntary euthanasia is bound to grow for completely the wrong reasons.
As the noble Baroness, Lady Warnock, observed, some critics described the Government's document as a "bland reply" to a "bland report". I believe that the noble Baroness said that it was a "timid" reply to a "timid" report. I do not believe that the report is either timid or bland. It is appropriately cautious and careful. My hope is that at least some of our important recommendations will be put into practice. Among those I would emphasise codes of practice about treatment limitations, expanded advance directives becoming commonplace and ethical issues being openly discussed between patients and healthcare teams. In that case I would hope that a social culture would develop in which different difficult choices about the ending of life can be clearly and legitimately expressed. It may then be time for another Select Committee to look again at changing the law on voluntary euthanasia. Until then, for my part, I am content to allow a Fabian approach of gradualism to take this most fundamental debate forward.
§ 7.15 p.m.
§ Baroness Cumberlege
My Lords, the Government are most grateful to the noble Lord, Lord Walton, a distinguished and eminent neurologist, past president of 1404 the General Medical Services Committee and the BMA, and all members of the Select Committee for the work that they have done. As your Lordships are aware, this House is able to assemble from its Members people who, as Kipling said, are,of infinite resource and sagacity",to deliberate upon the fundamental values of society. The committee achieved what this House is so well equipped to do: to produce a report that shows no deviation from what is right for the sake of some passing whim or political distraction. It is an example of Parliament working at its best.
There is a need, as my noble and learned friend the Lord Chancellor said, to take account of the views of the Law Commission and organisations representing doctors and nurses so that the findings of your Lordships' Select Committee can be embodied into codes of ethics. Subject to those consultations and caveats—the point raised by my noble and learned friend the Lord Chancellor concerning mandatory life sentences—the Government welcome the Select Committee's findings and recommendations.
There are two great changes occurring—the advance of medical science which will continue and which will heighten the ethical dilemmas and a decline in belief that there is life after death. If there is for the majority no belief in life after death then all that people have is life. The Select Committee is therefore right, by implication, to emphasise the sanctity of life. Perhaps I have to remind myself of this having spent time as a convent schoolgirl where the brides of Christ welcomed death as a glorious unification with their spiritual spouse. I appreciate that mine was a rarefied education —a fact I do not often forget. The memory was triggered tonight by my noble friend Lord Hertford in his closing comments.
The Government respect the views so lucidly and cogently expressed by the most reverend Primate the Archbishop of York that we need to work towards a shared value and respect and safeguard the limits which society believes to be right. We recognise that a small part of setting limits must reflect in the work carried out by health professionals.
It is a great concern to the Government and to every person that neither doctors nor nurses who are so trusted by the public should tarnish or destroy that trust by becoming "mercy killers". However old or however confused, everyone needs to have complete faith that the next visit from the doctor will be for their well-being and from the nurse for their care. Both doctors and nurses have the highest ethical standards. Those standards are the sure foundations of their professions. In the case of doctors the Hippocratic Oath says,I will give no deadly medicine to anyone if asked, nor suggest any such counsel".That is quite unequivocal. It has stood doctors in good stead for 2,500 years. As one who was a member of the UKCC I know full well the commitment of nurses to the highest ethical standards.
Euthanasia, as literally defined, means "an easy death". But the term is commonly used and understood to mean "mercy killing"—the deliberate killing of someone in a terminal condition and usually in severe 1405 pain, at his own request, "to put him out of his misery". The Government entirely agree that positive action should not be taken to cause death. That is murder, and must remain so to protect vulnerable individuals.
The Government agree with my noble friend Lord Colwyn that if euthanasia were to be permitted, it would effectively change the social context, making voluntary death a viable option. Like my noble friend, we believe that this could place an additional, perhaps intolerable psychological burden on elderly or mentally ill people, who might feel that they had a duty to end their lives when they became difficult to care for, a view expressed by many of your Lordships. We must also recognise in a more materialistic age that there is pressure from relatives who see the cost of care whittling away their inheritance. The Government believe that we should avoid creating these additional burdens on vulnerable people and ensure that mercy killing is not legalised. The Government agree with the Select Committee's report and reject calls to legalise euthanasia or assisted suicide.
I am grateful to the right reverend Prelate the Bishop of Oxford for his clear and compassionate contribution to the debate. If I may be permitted an aside, how lucky we are to hear a little more of him than we are limited to in "Thought for the Day". We are grateful to the right reverend Prelate for the support he gave the Government when in their response the Government recognised that there are occasions when doctors will be faced with a terminally ill patient in severe pain and they will need to administer sufficient doses of drugs to control the pain, even though an inevitable consequence may be the shortening of the patient's life. The Select Committee called this the "double effect".
I was interested to hear the so well argued and profoundly reasoned case as expressed by the noble Baroness, Lady Warnock. For those of us who were not privileged to serve on the committee, it gave us a little flavour of the depth of some of the discussions which I am sure took place. The Government conclude that it is acceptable for a doctor to administer drugs even if it shortens life 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. I appreciate, though, that my noble friend Lady Flather seeks to take this debate a little further. But at the moment that is the Government's position.
The Government also accept the powerful views expressed by the noble Baroness, Lady McFarlane of Llandaff, that the issues we are seeking to debate tonight are not solely issues for the medical profession. It is essential that all health professionals or members of the care team work together, and in many cases it is nurses who are closer to the patients, their families and friends. As the noble Baroness so rightly said, the evidence submitted by the Royal College of Nursing was extremely powerful, and we are grateful to it. I believe your Lordships will join me in expressing the gratitude of the House to the noble Lord, Lord Jenkins of Putney, for deepening our understanding of some of these 1406 difficult, profound and very painful issues by revealing his recent experiences to us. But we cannot go along with his conclusions.
The Government's response to caring for dying people is not negative. On the contrary, it has been very positive. When I attend international conferences on palliative care I am left in no doubt that this country is by all standards the world leader. There is no reason for complacency or self-congratulation, but that is a fact.
As my noble friend the Duke of Norfolk said, the Government have increased their contribution for palliative care services from £8 million in 1990–91 to £35.7 million in this financial year. With recessions and deficits raging around us, to increase funding more than fourfold shows commitment beyond the call of Treasuries. This year an additional £6.3 million has been made available to enable hospices to obtain drugs for their patients free of charge. But we recognise that the Government are but a partner—some would say a junior partner—in this field. I too would like to pay tribute to the thousands—perhaps millions of people if one includes fund-raisers—involved with the hospice movement. Outstanding among their number is my noble friend's wife, the Duchess of Norfolk, whose energy, determination and, when it comes to fund-raising—I was going to say "guile"; I think I had better use "ingenuity" —has generated many admirers.
My noble friend Lady Platt succinctly drew out the important distinction between hospitals and hospices and the contribution that they make to training health professionals. The noble Lord, Lord Butterfield, in his moving and clear exposition of three challenging case studies, left us in no doubt about the dilemmas facing the medical and other health professions. He reinforced the point made by my noble friend Lady Platt that education is paramount. It was a point so well elucidated by my noble friend Lady Flather.
I hope I can reassure my noble friend Lady Flather and other noble Lords that, with regard to doctors, the General Medical Council has recently issued new recommendations. They include as one of the suggested curriculum themes Man in Society, which covers issues relating to palliation and the care of the dying. It suggests that this theme should be present throughout the full five years of the course. The GMC's recommendations also set objectives which include attaining knowledge and understanding of the importance of communication and the ethical issues relevant to medical practice. Another objective is the awareness at an early stage in the course of the moral and ethical responsibilities involved in patient care.
The noble Baroness, Lady Masham, told us of a new centre in Oxford and pointed out the need for more research. I am sure she will be heartened to learn of a programme of research by the University of York into the availability and effectiveness of palliative care. This study is being carried out with the help of a grant of £370,000 from the Department of Health.
As president of her local hospice, my noble friend Lady Platt expressed concern about the future funding of voluntary hospices, as did my noble friend Lord Colwyn, the noble Lord, Lord Meston, and many other noble Lords. Hospices vary in the amount of funds they 1407 receive from voluntary giving. From 1994–95 individual hospices will be able to negotiate, through contracts, the level of funding they need to provide care for NHS patients. For some, this may be more than half their running costs; for others it may be less. The Government's contribution in England ranges from 10 per cent. to 70 per cent. This reflects variation in need for support across the country. But I regret that I cannot give my noble friend Lord Colwyn or the noble Baroness, Lady Jay, the assurance they seek that as a result of this report and our debate more funding will be forthcoming for this area of work.
It is essential with any programme that has expanded so quickly that quality of service is carefully monitored. This is being done by district health authorities purchasing the services of the best. Inevitably this causes difficulties, especially where voluntary sector hospices cannot get contracts. The system of course will be blamed. But the department is determined to see good quality care provided and accepts that delivering this will sometimes be challenging to people working in the field.
I recognise the cogent arguments put by my noble friend Lord Hayhoe regarding uncertainty in contract funding. However, our advice is unequivocal. Where health authorities value individual hospices we wish to see stability in funding. The new contracts were introduced only in April of this year. We are monitoring them very closely. While I am mentioning my noble friend, I should like to congratulate him not only on his speech tonight but also on being appointed to the presidency of the Help the Hospices charity.
Many of the Select Committee's findings deal with people's dignity, starting from the premise that people have the right to refuse consent for any medical treatment through to consideration of the individual's requests, advance directives and staff training. The Government are resolute in their aim that people's own views should be taken into account. It is yet another change in culture that causes garments to be rent, but in the past some health services have been paternalistic. A few stalwarts continue to call people "cases" or even "clinical material". and for them there is a long haul to the point where they accept the notion that the patient's own opinion is not just relevant but of overriding importance. The Government will continue to uphold people's right to refuse treatment. We have codified in the Patient's Charter the right of every citizen of whatever age to receive health care on the basis of clinical need. Respect for privacy and dignity is one of the charter's standards. Those are fine words but it requires constant inspections and investigations into complaints to achieve and then to maintain high standards.
The noble Lord, Lord Meston, with his close association with the UKCC, Fill recognise that nurses entering training under Project 2000 are receiving more ethical training than ever before. This is vital for both nurses, who are becoming themselves more autonomous, and their changed role as they deal with people whose rights and views will become more important as the charter is absorbed into our national culture.
1408 Regarding advance directives, the Government will await the Law Commission's deliberations before finally taking decisions. But the Government are sympathetic to the Select Committee's conclusions. 'The noble Lord, Lord Robertson of Oakridge, quoted the views of the BMA contained in a letter from my honourable friend Mr. Sackville. In the same way as doctors who have a conscientious objection to abortions are not compelled to take part in such an operation, a doctor who believes that it is important to preserve life at all costs, faced with a patient with a terminal illness who has made a valid advance directive requesting no medical intervention, is able also to pass the care of the patient to a colleague for whom carrying out the patient's wishes would not cause a crisis of conscience.
The noble Lord, Lord Meston, was quite right to call our attention to some of the anxieties concerning advance directives. Although I understand the apprehensions expressed by my noble friend Lord Cork and Orrery, it is the Government's view that advance directives are not a part of euthanasia. The Voluntary Euthanasia Society of course has been associated with them over the years, certainly, but many people who utterly reject euthanasia favour advance directives; for example, the Terrence Higgins Trust, the Select Committee and others.
I have listened very carefully to the views of the noble Baroness, Lady Jay. The Government support the Committee's absolute rejection of legalising intentional killing. Advance directives authorising such an act are not and cannot be legally binding; a statement which I hope will also reassure my noble friend Lord McColl. Much of the Select Committee's work has concentrated on the concerns for what is often the last weeks, days or even hours, of life. But in cases of persistent vegetative state, existence may continue for years.
The question of whether to withhold or withdraw life-prolonging treatment (including artificial nutrition and fluids) from someone who is not benefiting from it is quite different from euthanasia although it raises similar moral and ethical questions. I am very grateful to my noble friend Lord. McColl for drawing your Lordships' attention to some of the recent judgments in the courts. As he indicated, the courts in England have been anxious to assert the law's commitment to the sanctity of life. But as the noble and learned Lord, Lord Keith, said in the Bland case:The principle [of the sanctity of life] is not an absolute one. It does not compel a medical practitioner on pain of criminal sanctions to treat a patient, who will die if he does not, [contrary to the express wish of the patient].The noble and learned Lord, Lord Mustill, concurred:The interest of the State in preserving the lives of its citizens is very strong, but it is not absolute. There are contrary interests, and sometimes these prevail; as witness the over-mastering effect of the patient's refusal of treatment, even where this makes death inevitable".This is a difficult area and I am sure your Lordships —not least my noble friend Lord McColl—will be pleased to learn that the Royal College of Physicians has taken up the invitation in the Committee's report to draw up codes of practice on PVS and also for advance directives. I am glad that the noble Lord, Lord Allen of Abbeydale, feels that that may go some way to meet his anxieties. Perhaps I may pay tribute to the noble Lord 1409 that albeit the Government cannot travel all the way with him, he can be assured that we are grateful to him for drawing the nation's attention to these difficult issues. Likewise, I pay tribute to my noble friend Lord Alport who suggested that a panel of three wise people drawn from different professions should be set up. I hope that he will feel that the college, in setting up a working group with not only physicians but other health professionals, will meet some of his needs.
The Department of Health will have an observer on this group so we will keep in touch with proceedings. We shall be very conscious of your Lordships' eagle eye as to our progress. The group will of course need to reflect any decisions which might come out of the Law Commission's recommendations in these areas. As the committee recognises,resources for health care are not infinite. There are limits to what society is able and willing to afford and rationing of resources has become a fact of life in all developed societies".The health service has always operated within a finite level of resources. Today's service is no different. The allocation of resources within a hospital is determined locally. It needs to be done within the framework of a clearly expressed policy as this will ensure difficult decisions are made away from the treatment room, as mentioned by the noble Lord, Lord Walton. The decision on how to treat an individual patient. must always remain a clinical one.
I was very grateful to the noble Baroness, Lady Jay, for the spirit in which she entered the debate today, drawing very much on consensus, although I was rather anxious that that seemed to be a little rocky as her speech continued. But no debate we have in your Lordships' House seems to be complete without my having to reiterate—and the noble Baroness, Lady Jay, is well aware of this—that NHS spending is at an all-time high. In the UK as a whole, we now spend over £100 million every day on the service. I do not wish to go further into that because the statistics are well known to your Lordships' House.
In conclusion, the Government want people to feel comfortable with their health service. This report must not just be the concern of professionals, but accepted by the majority of the people, for there are no simple solutions that can be codified in neat pieces of legislation. I very much appreciate the points made by the noble Earl, Lord Listowel. Although we can all sympathise with those who demand clear laws for every eventuality, it is not possible. The Government wish to support the vast majority of the Select Committee's recommendations. But we also recognise the complexity of the task which they have to undertake.
As my noble friend Lord Alport has said, the Committee's work is of international importance. I would like to thank him not only for his subjective and thought-provoking contribution tonight, but also for the Bill. I also thank the noble Lord, Lord Allen of Abbeydale, who provoked your Lordships' House into setting up this Select Committee.
The Committee rightly starts from the very old fashioned premise that "thou shalt not kill". It continues by asking us how best we can be concerned for love of 1410 our fellow human beings. I am sure that those two foundations upon which this report is based will commend it to the people of this country.
§ 7.37 p.m.
§ Lord Walton of Detchant
My Lords, it would neither be proper nor appropriate for me to detain your Lordships long in responding to this superb debate. I am deeply grateful for the generous comments which have been made by Members of the Committee, which I had the privilege to chair, and by other noble Lords on the contribution which I made to the work of the Committee leading to the publication of this report. As I said at the outset, I owe to the Members of the Committee a very great debt of gratitude for their support and expertise in helping me with what proved to be a demanding, but nevertheless enjoyable task—a commitment for which I shall always be grateful.
I have listened to this debate with very great care. It would be quite impossible for me to comment—indeed it would not be proper for me to comment—on all the contributions which have been made. I can only say that in my view it has demonstrated, in the sensitivity, depth and understanding of the contributions, the work of this House at its very best. I wholly appreciate the sincerity of the views put forward by the noble Earl, Lord Listowel, and by the noble Lord, Lord Jenkins of Putney, who wished that we had come to the conclusion that it would be proper to legalise voluntary euthanasia. I do not intend to rehearse again the arguments which I put at the opening of this debate giving the reasons why in the end we rejected that option, even though we recognised the force of some of the arguments put forward by those who proposed that it should be so legalised.
I hope that your Lordships will forgive me for interjecting into this serious and sensitive debate what might be regarded by some as a light-hearted contribution. Only recently I was privileged to attend a meeting that was attended by many disabled people suffering from neuro-muscular diseases, a group of conditions in which I have had a lifelong medical interest. The chairman of the meeting was faced with a very aggressive and unfortunately brutal questioner in the front row who asked some very inappropriate questions. In the end, in the presence of a very large number of chronically disabled people, he asked, "What is your view, chairman, of euthanasia?", the implication being that it was to be regarded as an option for severely and chronically disabled people. The chairman had a flash of inspiration and said, "When we have enough problems with youth in the United Kingdom, I do not think that we should be concerned with youth in Asia". That was his response. It certainly dealt with the questioner very effectively.
I should like to put on record how sensitive I found the contributions of the most reverend Primate in dealing with the moral issues and in being so precise when dealing with the question of personhood. He and his colleague the right reverend Prelate the Bishop of Oxford endorsed the double effect, as described in our report, a concept so helpfully clarified by the noble Baroness, Lady Warnock. I was delighted by what was 1411 said about the hospice movement and the crucial importance of supporting its development and the work that it spreads out into the community. I was delighted to hear the support for that also from the noble Duke, the Duke of Norfolk, the noble Baroness, Lady Platt, and the noble Lord, Lord Hayhoe. Naturally, however, as the Minister will recognise, we were all a little disappointed that she was not able to be more encouraging about resources for the hospice movement. While appreciating the amount of money that the Government have put into that and their work on research and education, we invite the Minister and her colleagues in the Department of Health to try just a little harder in that regard in the future.
I was also pleased to hear the contributions of the noble Baronesses, Lady Liewelyn-Davies and Lady McFarlane, about the important and vital contribution of the other members of the healthcare team. This is not a matter affecting the medical profession only.
Perhaps I may say a few words about advance directives. The noble Earl, Lord Cork and Orrery, can be reassured that the Bill of the noble Lord, Lord Allen of Abbeydale, which we considered carefully, was not promoted by the Voluntary Euthanasia Society. It contained several important safeguards for patients and doctors and was certainly no attempt to introduce the legalisation of euthanasia. It was a Bill which had principles which we commend, of allowing an individual who may at an earlier stage have been perfectly competent to specify the circumstances in which, if he subsequently became incompetent, he would not wish to have certain very invasive interventions.
We have commended such forms of advance directives, and like the noble Baronesses, Lady Flather and Lady Jay, and the noble Lords, Lord Meston and Lord Robertson of Oakridge, we would much prefer the present situation to continue, whereby advance directives are used as a guide to the medical profession. If they comply with directives that have been properly established and properly drawn up, members of the medical profession need have no fear that they are no more than a guide. Our belief is that their use should be hallowed increasingly by common law and not defined by statute because of all of the difficulties that have been exposed in the debate.
Perhaps I may respond to the helpful and supportive response of the Government, as so lucidly expressed first by the noble and learned Lord, the Lord Chancellor, and then by the noble Baroness, Lady Cumberlege. We are grateful for the Government's general endorsement of the major principles of our report. I am delighted to know that the colleges of the healthcare professions have responded to our wish to see codes of practice relating to the definition of the persistent vegetative state and its management, and to advance directives, accepting of course that the Law Commissions in this country (in England and Wales and in Scotland) may come up with further proposals which we shall be required [...]o discuss and examine in detail in due course. As the noble Baroness, Lady Jay, said, "brain death" situations were originally controversial, but the code of practice in relation to that has now been accepted 1412 generally by the public and by the healthcare professions at large. We hope that the same may ultimately arise in relation to the persistent vegetative state and its management.
I know that the noble and learned Lord the Lord Chancellor will recognise that we were not persuaded by his comments about the mandatory life sentence for murder. As the most reverend Primate said, if Dr. Cox's patient had had a post mortem, the probability is that he would have been convicted not of attempted murder, but of murder. We appreciate, as the General Medical Council decided, that his action was seriously misguided. Nevertheless, it had a compassionate motive. No member of the committee 'would wish to see any reduction in society's condemnation of the deliberate heinous crime of murder; but we are concerned that there have been situations, we believe, where a family member, through compassion, may have ended the life of a loved one suffering from terminal and serious distress where the intention must surely have been to terminate that life, yet where the lawyers and the Crown Prosecution Service amended the charge from one of murder to either attempted murder or manslaughter or accepted a plea of diminished responsibility. We believe that that As a compelling argument to invite the Government to look yet again in due course at the recommendation. We hope that the noble and learned Lord and his colleagues will consider that.
It has been a privilege to have chaired the Select Committee and to have listened to the debate this evening. I commend the report to the House.
§ On Question, Motion agreed to.