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Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 594 to 624. I have spoken to these amendments with Amendments Nos. 30, 264 and 266.
Moved, That the House do agree with the Commons in their Amendments Nos. 594 to 624.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
Mental Capacity Bill
Lord Walton of Detchant moved Amendment No. 1:
(1) Nothing in this Act permits or authorises any decision made with a purpose of bringing about the death of a person ("P").
(2) A decision to withhold or discontinue a treatment, made for the purpose of avoiding harm or burden to P from that treatment, is not within subsection (1) even if made with the belief that it will bring about P's death."
The noble Lord said: My Lords, in moving the amendment, to which the noble Lords, Lord Carlile of Berriew and Lord Brennan, have added their names, I make it clear at the outset that there is no intention on our part to wreck the Bill. It is an extremely important Bill, and I am sure that all noble Lords wish to see it on the statute book at the earliest possible moment. I believe, too, that the objectives underlying the Bill, which the department and the noble Baronesses, Lady Ashton and Lady Andrews, have proposed, are ones that I and my colleagues share. However, the question that I have to put to your Lordships' House is whether the Bill as drafted fulfils those objectives, or whether there are any flaws or loopholes that need to be corrected.
I turn to the report of the Select Committee on Medical Ethics, which I had the privilege of chairing in 1993. We reported to this House in 1994, and the report was accepted by the House. I believe that it is relevant to mention some of the recommendations of that Select Committee, which were accepted by the House in a full and comprehensive debate.
First, the report accepted that informed consent is at the core of medical practice and that it is the patients' responsibility, having had all the implications of a form of treatment explained to them, to determine whether to accept that treatment. But we made it clear at that time, in accordance with the views expressed by a very large number of religious organisations, that any competent patient was fully entitled to refuse medical treatment
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after a full and detailed explanation, even if that refusal ultimately resulted in death, and we did not regard that as tantamount to suicide or assisted suicide.
Let me explain how we defined euthanasia. Of course, the original meaning of the term was simply a "gentle, easy death", but as years have gone by the term has come to be regarded as indicating a positive act intended to end the life of the individual, and an act that could have no other result than to cause death. "Voluntary euthanasia" was defined as when that act was carried out at the specific and carefully considered request of the individual who had asked for that to be undertaken. "Non-voluntary euthanasia" we defined as a situation in which an incompetent patient, unable to give or withhold consent, was subject to euthanasia on the advice and understanding, and with the agreement perhaps, of other parties; whereas "involuntary euthanasia" meant the putting to death of an individual who was fully capable of giving or withholding consent, which is totally abhorrent in civilised societies.
We rejected the term "passive euthanasia" because we preferred to use the term "a treatment-limiting decision". That refers to the ability and recognition that there were circumstances when it was entirely appropriate to withhold or withdraw treatment if it was having no benefit whatever to the well-being of the individual as a person. Of course, one of the most notable cases in which that situation arose was that of Tony Bland, the young man who was crushed in the Hillsborough stadium disaster and who subsequently entered into a permanent vegetative state, meaning that the whole of his cerebral cortex was dead, he had no awareness whatever of his surroundings, he could breathe and his heart continued to beat but he could not swallow and he had been fed for several years with a tube, which gave him food and fluid. That is one of the cases to which I shall return in a moment.
The Select Committee also promoted and approved the principle of double effect. That means that if it is necessary for a doctor and other members of a healthcare team, in order to relieve pain, distress and suffering, to give such doses of medication, whether pain relief, sedatives or both, which have the secondary consequence of shortening life, that was totally acceptable in law and in medical practice.
I am grateful to the noble Baronesses, Lady Ashton and Lady Andrews, for the discussions that I have had with them and the correspondence that we have shared. Although there are still differences of opinion between us, I believe that our objectives and hopes in relation to the Bill are the same.
In Committee, there was some discussion about Clause 4(5) of the Bill that states that an action must not be motivated by a desire to end the life of the individual. At that time, we discussed the crucial difference between on the one hand, intention and purpose, which indicate the objectives and the intended outcome of a particular action, and, on the other hand, motivation and desire, which relate to the reasons why the outcome might be desired. At that time, we did not feel that the clause was sufficiently strong to fulfil the objectives that we wished to see included in the Bill.
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There has been a very striking degree of disagreement between distinguished lawyers on aspects of the Bill. Some of them are strongly in support of our amendment; some of them are very strongly opposed to it. In the past, it has been said that when a lawyer says, "With respect", he means, "I disagree"; when he says, "With great respect", he means, "You're talking through your hat"; and when he says, "With the greatest possible respect", he means, "You've gone off your head". Well, one lawyer said to me, "With the greatest possible respect, I do not think your amendment will fulfil the objectives that you seek". I leave it to the good sense of the House to determine whether that was justified.
The point that I particularly wish to make is that we are at one with the Government in wishing nothing in the Bill to be taken as legalising euthanasia. I am sure that that is what Clause 58 says. Equally, we do not wish to see anything in the Bill that would justify assisted suicide.
In the case of Tony Bland, the Select Committee that I had the privilege of chairing considered carefully whether it was right to continue giving him food and fluid by a tube inserted through his nose into his stomach. The universal medical opinion was that it was medical treatment and it was felt at the time that it could be withdrawn like any other medical treatment. But the nurses objected greatly and said that food and fluid were basic human rights that should not be withdrawn under any circumstances. In the end, we came to the conclusion that the outcome desired in the case of Tony Bland would have been equally well achieved by the removal of antibiotics, which were clearly medical treatment. In other words, there was no obligation on the healthcare team to continue with futile medical treatment that added nothing to the well-being of the individual.
As your Lordships are aware, the case of Tony Bland went to the High Court and the judge recommended that the feeding tube should be removed. It then went to the Appeal Court where three judges agreed, for different reasons. Finally, it came to the Appellate Committee of this House where nine Law Lords expressed their views on the case. As noble Lords are aware, the majority view was that the feeding tube should be removed because in every way it was not in Tony Bland's best interests for feeding to be continued. I believe that certain Law Lords, using the principle of mens rea, concluded that withdrawing the feeding tube intended death; in other words, that in a sense it could be construed as murder. But six of the nine noble and learned Lords did not suggest that that decision intended death, even though death was foreseen as a consequence of the action. They said that continuing treatment was not in Bland's best interests and could be construed as being harmful or burdensome to him.
Since that time, any request for the removal of the feeding tube of a patient in a permanent vegetative state, which has been considered by the healthcare team in consultation with the family and those close to the individual, has had to be referred to the High Court.
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The purpose of our amendment is to make absolutely clear that an advance directive, however framed, could not be used to justify assisted suicide because, under Clause 26, advance directive decisions must be complied with even if they are against the patient's best interests. This is a fundamental feature of the Bill. New safeguards in relation to advance decisions have been added by the Government. They provide significantly more safeguards than are now available under the common law, but they may make it impossible for doctors to argue that an openly and explicitly suicidal advance decision is invalid because it was made with a disturbed mind. This is something upon which I seek the comments and consideration of the Government.
I confess that I have been very puzzled by a letter that I know many noble Lords have received from the noble Baroness, Lady Ashton, about the adverse effects of the amendment that other noble Lords and I have tabled. In response to the view of the noble Baroness, Lady Ashton, that the amendment,
the distinguished lawyer, Professor Finnis, has stated:
Similarly, it has been suggested to us by the BMA and lawyers advising it, that our amendment, as currently drafted, could be used to overturn the Bland judgment. Lawyers whom I have consulted say that there is nothing in subsection (2) of the amendment to prevent an assessment based upon best interests, as was concluded by six of the nine Law Lords in Bland who reached their decision without conflicting with subsection (1).
Finally, there is a suggestion in the letter from the noble Baroness, Lady Ashton, that accepting this amendment would overturn the principle of double effect. The point of subsection (2) in the amendment is to enshrine the long-established and well-accepted doctrine of double effect. The revised wording makes it even plainer. The doctrine of double effect has two aspects. It excludes the purpose of causing death and it allows death to be knowingly caused as a side-effect; in other words, a distinction must be drawn between the intention underlying an action on one hand and the consequences that may be foreseen but are not intended on the other. I believe that our amendment deals with that issue satisfactorily.
I look forward to hearing the Government's response. There has been a sincere and serious difference of opinion between lawyers on this. Some of them support the amendment and some of them feel that it is flawed and that it is unlikely to improve the Bill or to fulfil the objectives of preventing euthanasia and assisted suicide, of maintaining support for the principle of double effect and of dealing with the question of withholding or withdrawing treatment in appropriate circumstances in the light of the medical situation. I beg to move.
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