Palliative Care Bill [HL]

My Lords, I declare an interest as a member and supporter of Birmingham St Mary’s Hospice. Like other noble Lords, I start by congratulating the noble Baroness, Lady Finlay, on introducing the Bill. She has made immense contributions to palliative care and to your Lordships’ House on many matters. I am delighted to respond to her Bill. All noble Lords are grateful to Trixie—the noble Baroness, Lady Gardner of Parkes—for her courageous speech, which we all found most moving. It is good that her daughter is sitting below Bar and listened to her wonderful speech. The noble Baroness spoke movingly about the wonderful contribution of palliative care and the need for all doctors and nurses to understand the role of and access to palliative care. I could not agree with her more. I echo the remarks of the noble Lord, Lord Carlile, who spoke about the celebration of death. That was well spoken, and all noble Lords agreed with his sentiments. There can be no question about the importance of palliative care or our need to widen its provision. The intent of the noble Baroness’s Bill is widely welcomed. As the noble Lord, Lord Cavendish, the noble Baroness, Lady Howe, and the noble Viscount, Lord Bridgeman, suggested, there can be no doubt about the contribution of the voluntary sector and the hospice movement to palliative care services. That contribution has been profound, and we should be ever grateful. I recognise the challenge that the hospice movement faces in raising funds in a competitive environment for many charities and voluntary organisations. We have had an interesting debate about the definition of good palliative care. The noble Lord, Lord Lester, and the noble Baroness, Lady Greengross, spoke about the need for a patient to have his wishes and choices respected fully rather than being subjected to a more paternalistic approach, and the noble Baroness, Lady Finlay, provides a definition in Clause 7. The noble Lords, Lord Brennan, Lord McColl and Lord Alton, and the right reverend Prelate the Bishop of St Albans stressed the need for spirituality and echoed a debate that we had on the Motion moved some two or three weeks ago by my noble friend Lady Jay. My view is that the question of spirituality is a matter of conscience and personal perspectives and beliefs. I was very taken with the well chosen example given by the noble Baroness, Lady Neuberger. When I responded at the end of the debate on the Motion moved by my noble friend Lady Jay, I said that I would ensure that these matters are deliberated on in the end-of-life care working groups and strategy, which I shall refer to in a moment, because they are clearly very important, if undeniably difficult. The exchange between the noble Lord, Lord Lester, and the noble Lord, Lord McColl, on the question of double effect was fascinating and, aside from judgments being made in the courts, there are clearly different clinical views on the matter. I understand that the Law Commission review is being considered by the Home Office. I am happy to write to the noble Lord, Lord Lester, if I can find further details about when the Home Office is likely to respond to that review. The noble Lord, Lord Patten, echoed remarks made by the noble Baroness, Lady Knight, in a debate in Committee on the Mental Health Bill about wholly inappropriate activities by care staff that induce death. I have met the noble Lord, the noble Baroness and the noble Lord, Lord Carlile, to discuss the matter. I have asked them kindly to supply me with evidence. Clearly, such unacceptable behaviour can never be tolerated. I am anxious to learn what further actions might need to be taken by the health service. I have also invited those noble Lords to a meeting with the national clinical director on older people’s issues to discuss the matters more fully. Understandably, the noble Baroness’s Bill has drawn widespread support from your Lordships’ House. While the Government understand and obviously appreciate the Bill’s intent, it is my duty to point out some of the problems with it. The noble Lords, Lord Patten and Lord Colwyn, anticipated my response. None the less, it is my duty to give that response. Essentially, we do not believe that it is necessary to impose a statutory duty for the provision of palliative care, as the general powers in Sections 1 to 3 of the National Health Service Act 1977 are sufficient to enable the Secretary of State to provide or secure the provision of palliative care as part of the health service. Those noble Lords who have been enjoying the debates on the Mental Health Bill will know that I have repeated this phrase on a number of occasions; indeed, I intend to do so vigorously on Monday. Section 2 of the Act provides the Secretary of State with powers to provide such services as she considers appropriate for the purpose of discharging her duties under the Act. Those functions are in turn delegated to primary care trusts in England. These obligations are general duties. They also give discretion to the Secretary of State concerning the circumstances in which she will provide those services. The Secretary of State is not obliged to meet all medical or nursing requirements or demands. She is entitled to take into account the resources available and the demands placed on those resources. In contrast, the Bill of the noble Baroness, Lady Finlay, appears to create a duty owed to every person with a terminal illness. As a result, the Secretary of State would be failing in her duty if an individual showed that she had failed to ensure the provision of palliative care to that individual so as to meet their individual needs. The Bill sets down that palliative care would be provided, "““to such extent as is necessary””," to meet each person’s reasonable requirements. By comparison, the NHS Act provides for the provision of services to such extent as the Secretary of State ““considers necessary”” to meet all reasonable requirements. The noble Baroness’s Bill does not take account of the possibility that there may well be a considerable gap between the minimum requirements that the Secretary of State or a primary care trust would consider necessary and the more extensive requirements that an individual might consider necessary. Under current legislation, a primary care trust can consider the provision of end-of-life care services alongside the demands on and requirements for other NHS services. The noble Baroness’s Bill does not allow for that. In practice, her Bill, if enacted, would elevate the provision of end-of-life care services above all other NHS services. That is the problem with it. The noble Lord, Lord Carlile, likes that approach. I understand why he likes it. He said that we should adopt the approach that the noble Baroness has very cleverly in her drafting adopted in the Bill to all other services. Of course he seeks intellectual justification for the similar approach that he takes to mental health. The problem is that, if we were to accede to the noble Baroness’s Bill and to the noble Lord’s amendments on Monday, what about the other services? It must follow that, one way or another, other noble Lords will seek to enact similar provision for all other NHS services. As night follows day, that will follow.