Speech in the House of Lords on the 2nd Reading of the Patients' Protection Bill
Before I do anything else, I congratulate my noble friend Lady Knight on bringing forward the Bill and on her persuasive and powerful speech in moving its Second Reading. There is no doubt in my mind that she has raised a vitally important issue. I say that as someone who initially doubted, when the Bill first came to my notice, whether there really was an issue to be addressed in a debate of this kind. I do not feel any such doubts now; and I should add that the volume of letters and e-mails that I have received on the subject testifies to the widespread concern that exists among the public about the treatment of terminally ill and frail elderly people in our hospitals.
I begin with a statement that perhaps cannot be made often enough. The Conservative Party is against legalising euthanasia. By "euthanasia" I mean any deliberate intervention which has the purpose of ending life. That view rests on both ethical principle and pragmatism. As a matter of general principle, human life is intrinsically valuable and sacrosanct, and should be safeguarded in law and in practice. The law already recognises the special status of human life in the framing of the homicide laws and in the judicial penalties for murder and manslaughter. As a matter of pragmatism, our job as legislators is to protect the most vulnerable in society. If euthanasia were legalised, many frail and elderly people would feel pressurised into having their lives ended—they would imagine themselves to be a burden to others, or they might think or know that their relatives wished them to go. It would be a terrible slippery slope. We must never espouse the principle that some lives, such as those who are sick, disabled or depressed, are worth less than others. We are not even entitled to take such a view of our own lives. There are many cases of people who have expressed a fervent wish for euthanasia, only later to change their minds completely when the quality of their lives improved. It should not legally be within my gift to ask another person to kill me.
Unlawful killing, under English law, includes killing both by act and by omission. Indeed, in my opinion there is no ethical difference between the two. It should follow from that that, unless sanctioned by a court, the deliberate withdrawal or withholding of nutrition and hydration from a person constitutes unlawful killing. That was the position at which I started out when my noble friend's Bill first came to my attention; and it was why I said just now that initially I did not think there was a legal issue to be addressed. The significance of the Bland case, however, was that for the first time nutrition and hydration were classified by the court as constituting "medical treatment". It has never been unlawful to withdraw medical treatment from a patient when such treatment is regarded as oppressive and futile. Doctors are not under a duty to prolong life officiously by means of medical interventions when to do so is not in the best interests of the patient.
Tony Bland was in a persistent vegetative state; the Law Lords, on a majority decision, allowed medical staff to withdraw sustenance from him and he died of dehydration. That case was considered by the House of Lords on its own merits, and was not meant to act as a legal precedent. However, whether or not that was the intention, the consequence of the judgment was to act as a beacon for future medical practice. There has, I believe, been a subtle shift in medical ethics.
In its judgment on Bland, the House of Lords recommended that in all cases where the withdrawal of nutrition and hydration was being considered for a patient in a persistent vegetative state, a court declaration should be sought. That was reassuring. However, the BMA has made it clear that it regards that as an interim recommendation. Its recent guidance expresses the hope that, "in future the Courts will decide that PVS cases no longer inevitably require court review, where consensus exists".
The guidelines then go further to cover non-PVS cases. They state: "The BMA can see no reason to differentiate between decisions for patients in PVS and those for patients in other serious conditions where artificial nutrition and hydration is not considered to be a benefit, which are currently governed by established practice without the need for a legal review".
In other words, the BMA is asserting the right of doctors to decide that administering food and water may be futile for a patient who is not in a persistent vegetative state, as well as for one who is.
The type of patient referred to in this context is the adult who does not have the capacity to make or communicate decisions and who does not have a valid advance directive, as well as children and young people. Decisions to withdraw nutrition and hydration from such patients must, says the BMA, be subject to a formal clinical review by a senior clinician. The BMA admits that any decision to withdraw food and water from a patient leaves doctors open to a legal challenge. However, the guidance expressly sanctions the possibility of doctors taking such decisions under their own discretion.
The mother of a friend of mine had a massive stroke and could not move or communicate in any way. The doctors declared that she was in a persistent vegetative state and recommended the withdrawal of all fluids and nutrition. My friend did not believe them. She spent many hours talking to her mother and realised, from the blinks and slight movement of her eyes, that her mother could not only understand every word that was said but was perfectly rational. Still the doctors did not believe it. One day, however, by means of blinks, the mother was able to say to my friend that if the doctor and a certain nurse wished to conduct a sexual liaison, they should please do it outside her room. That was duly relayed to the doctor. Only then did he realise that the lady in the bed had all her mental faculties, and she was treated quite differently from then on. The standard test for PVS had never, of course, been done—the doctors had relied, wrongly, on outward symptoms.
The other category of patients directly affected by the Bland judgment is the patient who has left advance instructions about what he wants to happen to him if he falls ill and cannot communicate. Such instructions, according to the GMC, should be treated as binding. Those who sign so-called living wills, asking that they are not to be resuscitated in the event of serious and potentially terminal illness, may not realise that they may also be forgoing their right to receive basic nutrition and hydration. They are delegating to doctors, irrevocably, a decision about whether or not their life is worth saving. If the doctor decides that it is not, not only medicines and other care, but also food and fluid, will be withdrawn. A person incapacitated by a stroke, or in a coma, might not be cared for long enough to see whether he recovers.
Whether the Law Lords were right or wrong to decide that nutrition and hydration constitute medical treatment is in a sense neither here nor there; debating that question is rather like dancing on the head of a pin. The issue for us is whether food and water should be regarded as separate and distinct from conventional medical treatment and whether the right for every patient, however ill, to receive food and water should be safeguarded in law.
I spoke just now of a subtle shift in medical ethics, and I believe that that is what has happened since Bland. My noble friend has referred to some very disturbing cases involving deliberate acts of omission by clinicians—acts intended either explicitly or implicitly to hasten the deaths of patients. I myself have been made aware of others. Your Lordships may have seen the letter in Monday's edition of The Times from the Marchioness of Salisbury which draws attention to the practice of withdrawing feeding from stroke patients. But Lady Salisbury also refers to reports about patients who have been admitted to hospital with conditions that are not life threatening and who are then sedated and allowed to die from dehydration. There is, I believe, a point at which anecdotal reports become a body of evidence. In my view, that point has been reached. The question is what to do about it.
My noble friend's Bill proposes that we should place an absolute ban on the withdrawal or withholding of artificial nutrition and hydration if the purpose of so doing is to hasten or cause the death of the patient. Her succinct explanation of that choice of words amply illuminated her very principled position. I wonder, however, whether she would allow me to pose one or two questions on the phraseology she has used.
My noble friend referred in her speech to food and fluid being a human right. Listening to the impressive opinion of the QC whom she quoted, I would ask whether that is actually correct. The QC's opinion referred only to hydration. The noble Baroness, Lady Finlay, with her immense direct experience of hospice care, made it clear, as I understood her, that there are circumstances in which to administer nutrition by tube, perhaps to a terminally ill patient, was the cruellest possible thing one could do to that person; for example, if the patient's bodily system could no longer cope with digestion. The GMC guidance says that, for some patients, not taking food and fluid may be part of the natural dying process. We need to take note of that.
My noble friend said that nothing in her Bill would force a patient to have a tube in his nose or a peg in his stomach if he does not want that. But what if he is unable to communicate his wishes and has left no advance instructions? It seems to me in those circumstances that the Bill might leave doctors with no choice but to continue peg-feeding the patient literally ad nauseam even when that might be physically oppressive to him. I hope that I am wrong in that. My noble friend can doubtless correct it.
My noble friend did state that nothing in the Bill would prevent the withdrawal or withholding of food and fluid from a patient who is dying and where the tubes would be intrusive and the risks excessive. Again, however, I would simply ask her to explain how the wording of the Bill allows for that qualification. If the Bill became law, a doctor who believed that the kindest thing he could do for a suffering and terminally ill patient would be to withdraw a feeding tube from a patient's stomach would surely be prohibited from doing so if by that act he caused or hastened the patient's death. Furthermore, I wonder whether a court could sanction it either.
My noble friend should not misunderstand me. I believe that she has brought a very important issue to the notice of the House. Nevertheless, I know that she will agree with me that the implications of the Bill as worded need to be thought through carefully. Life is sacred, but at the same time we should never forget that life has a natural end. I ask my noble friend, if I may, whether she does not agree that in desperate cases such as that of Bland where all quality of life and all hope have gone, the kindest and most humane course is indeed to recognise that life in all meaningful senses has ended and to cease striving officiously to keep the patient alive. I hope that when she replies to the debate my noble friend will be able to explain how her Bill would allow a court to take that humane decision. As I read it, I cannot see that it would be able to.
It is for that reason that, although I support and deeply respect the intentions behind the Bill, I believe that it is appropriate to take a step back. My noble friend may be able to provide me with reassurance on the questions I have asked but I am concerned that the Bill as it stands will not do. Whether it is capable of amendment is not for me to say or judge but, in giving it a Second Reading tonight and reflecting on the powerful contributions we have heard during the debate, we perhaps need to consider whether it might not be the law that is at fault but rather the practice. If that is so, the focus of our concern should rest on how the medical profession should guide itself in future and how the approach of individual doctors to these very difficult life and death decisions can be made consistent with the letter and spirit of such guidance. The voice of Parliament in that context is, I believe, indispensable for there is no doubt that the grave worries that my noble friend has articulated today are worries held by many of our fellow citizens. Those worries, one way or another, must be dispelled.