Palliative Care Bill [HL]

My Lords, as the noble Baroness has clearly explained, the Bill has the important aim of securing the provision of good palliative care to everyone with a terminal illness. The debate is timely, coming in the wake of the debate introduced by the noble Baroness, Lady Jay of Paddington, on 31 January on this subject. This year is the 40th anniversary of the opening of St Christopher’s Hospice. Led by its founder, Dame Cecily Saunders, it marked the start of a highly influential movement to improve end-of-life care world-wide. Everyone in this House will surely support the aim underlying the Bill. As the Minister will explain, the Government clearly do so. They have increased funding for hospices significantly and support the NHS End of Life Care programme. That programme’s aim is to improve the quality of care for those patients and enable more patients to live and die in the place of their choice. The principles of good palliative care were well stated by Help the Hospices, taking as its starting point the affirmation of death as a natural part of life. Built on that bedrock are the values of respect, choice, empowerment, holistic care and compassion. If there is to be a statute, its definition of good palliative care should encompass the philosophy of Help the Hospices and address some of the difficulties in the provision of medical treatment to relieve pain and suffering. It would also need to give effect to the Government's commitment to increase choice for all patients regardless of their condition within available resources, and to meet the treatment needs of the patient. It is important to give effect in such a Bill to the rights of patients to personal autonomy and self-determination in their medical care and treatment. That right is enshrined in the principles on which the Mental Capacity Act 2005 is based. The draft code of practice, which was laid before Parliament yesterday, anchors that clearly. Palliative care is broadly defined in Clause 7 of the Bill as, "““care given with the intention of improving the quality of life of persons with a terminal illness by ... treatment which controls and relieves pain, distress, discomfort or other symptoms caused by, related to or coincidental with terminal illness, and ... psychological, social and spiritual help and support””." No reference is made in that definition to the wishes or choices of the patient. Palliative care must surely be grounded in the wishes and the consent of the patient. That goes to the heart of what good palliative care should be about. It is the patient rather than the medical team who experiences the pain, distress, discomfort or other suffering; and patients with mental capacity know whether the care they are receiving meets their needs. The statute would need to recognise patient autonomy to make clear that the provision of good palliative care must not be based on the outdated paternalistic model of the doctor deciding what is in the patient's best interests. The other issue that I wish to raise is the vexed question of medical care and treatment for patients, where the relief of pain or suffering may have the likely or inevitable consequence of foreshortening life. The doctrine of double effect permits doctors to administer potentially lethal drugs, provided their intention is not to kill, but simply to relieve pain and suffering. Professor Seale published two reports in 2006 to assess the frequency of different end-of-life decisions in the United Kingdom and the degree to which patients' lives are shortened by end-of-life decisions. Based on a study of 857 doctors, he found that in one-third of deaths, patients were medicated to alleviate symptoms with a possibly life-shortening effect. The Law Commission's 2006 consultation paper on a new homicide Act for England and Wales states: "““It is now an accepted part of common law that a doctor may lawfully prescribe such medication””—" pain relief that may shorten life as a consequence— "““in such circumstances and, thereby, have a defence to a charge of murder””." But the principle of double effect does not sit well with the current formulation of intention and the law of homicide, and the absence of a proper legal framework and the risk of prosecution undoubtedly deters some doctors from treating their patients in accordance with those patients' wishes The December 2005 trial of Dr Howard Martin, who was found not guilty of murdering his patients by administering high doses of morphine and diamorphine, demonstrated the practical problems in applying the principle of double effect. Reasonable legal certainty is especially important where a patient is suffering from a terminal illness and facing the prospect of experiencing severe suffering and indignity. Patients have the right to life. They also have the right to personal autonomy and to live and die with dignity. They, their doctors and other healthcare professionals need to know what exception there is to the law of homicide enabling a doctor, acting in accordance with the patient’s wishes, and the doctor’s judgment as to the appropriate medical treatment, to administer that treatment, even though it is virtually certain that it will hasten the patient’s death. Unless the criminal law and good medical practice are clear, conscientious doctors, seeking to act in the best interests of their patients, are left in a state of uncertainty—as are their patients. Some things are clear. There is no doubt that the intentional taking of life, albeit at the patient’s request or for a merciful motive, is unlawful. For a doctor to intervene actively to bring about a death is unlawful. Equally, a doctor who owes a duty of care to a patient and who withdraws or withholds treatment without lawful excuse commits an unlawful act. It is also clear that a competent adult has the right to consent to, or to decline medical treatment, even if the decision would result in the patient’s death. The problem with the existing state of the law is for the doctor or other healthcare professional to know what can lawfully be done to relieve pain or suffering towards the end of a patient’s life without fear of prosecution. One problem concerns the relationship between intention and foresight in deciding whether a doctor has a criminal intent. In deciding whether there is the mental element necessary for murder, foresight of the consequences is usually evidence of the existence of a criminal intent. The greater the probability of death as a consequence, the more likely that it was foreseen, and the greater the probability that it was also intended. As the noble Baroness, Lady Andrews, pointed out during the Second Reading debate on the Patients’ Protection Bill, "““In criminal law, when juries are asked to consider ‘intent’ factors they may be asked to take into account the probability of the outcome and the extent to which that was appreciated by the defendant even if it were not their main intention. Therefore, if a doctor knew, as a virtual certainty, that withholding or withdrawing treatment””—" or, I would add, giving treatment— "““even at the patient’s request, would result in””" or, I would add, would hasten, "““the patent’s death, the doctor could still be held to have positively intended the patient’s death””.—[Official Report, 12/3/03; col. 1433.]" When a doctor acts in accordance with what she or he considers to be responsible medical practice, with the aim of relieving pain or severe distress but with the probable consequence of hastening the patient’s death, the risk to the doctor is that the jury, as directed by the judge on currently declared legal principles, will impute the necessary specific intent to find the doctor guilty of culpable homicide, and the judge will have to impose a mandatory sentence of life imprisonment. The humane theological doctrine of double effect attempts to provide a justification for administering drugs necessary for the relief of a patient’s pain or severe distress in the knowledge that a probable consequence is the shortening of the patient’s life. But the absence of a clearly prescribed legal framework and the risk of prosecution undoubtedly deter some doctors from treating their patients in accordance with the patient’s wishes and the doctor’s conscientious beliefs. This uncertainty and confusion could be addressed if the definition of palliative care were widened to cover the giving of treatment, irrespective of whether it is likely to shorten life, while making clear, as does the Mental Capacity Act, that it is unlawful to give treatment with the motive of shortening life.