Conscientious Objection (Medical Activities) Bill [HL]

Debate between Baroness Finlay of Llandaff and Lord Winston

Committee: 1st sitting (Hansard): House of Lords
Friday 23rd March 2018 Lords Chamber

[Baroness Finlay of Llandaff]

I am sorry, but I have to intervene again. I should have declared my interest as palliative care lead for Wales, as vice-president of Hospice UK and of Marie Curie, and as having set up a lot of hospices. Symptom control is not life-prolonging treatment; it is about keeping people comfortable during the time they are dying of their disease. It may run in parallel with other treatments and it may be provided when other treatments are withdrawn, but it certainly does not prolong life per se. There is evidence that if you leave people in pain, it is a powerful drive to respiration. When you make people comfortable and relieve their pain, they can let go of life and die, but it is not the morphine that has killed them, it is the disease. Symptom control does not force people to stay alive.

[Lord Winston]

My Lords, sometimes groupings in our debates make things difficult for people who are trying to table amendments, and I have been trying hard to be relevant to the amendments but at several points in the debate over the past hour and three-quarters, reference has been made to things in the amendments which I tried to table.

I want to say one thing at the start. There are two things that I find very difficult in this House. First, there is the issue of sometimes filibusters occurring during debate—and I am very pleased that there has not been a filibuster this afternoon although, sadly, there was this morning. It is very unfortunate. I am well aware that we have just seen Old Father Time come into the Chamber; he has not actually got a scythe yet, but I suspect that he is about to cut us short at the appointed time.

That is one thing. The other issue is the question of declaration of interest. It is very difficult, but I make it clear that in these ethical and moral debates, of which this House is justifiably very proud, we do not always declare where we might actually have a conflict of interest. For example, I make it very clear that I am declaring a conflict of interest as an orthodox Jew who will have certain limitations on how I would do termination of pregnancy. But I respect absolutely the autonomy of the patient in front of me, and one amendment that I have put down later on would argue that in fact you have a duty to ensure the autonomy of that patient, as your autonomy, is equally respected, and to find some solution. In practice, that means consulting colleagues and trying to work that out.

I have a regard for the noble Baroness, Lady O’Loan, and her Bill, but I think that we should be prepared to explain where we are coming from during these debates, and so often we do not. I remember some time a few years ago on assisted dying that I spoke passionately against a particular amendment which would have allowed some assisted dying. At the end of that debate, after I had spoken, people on my Benches said, “Why aren’t you coming through and voting with us?”. I said that I had said what I had to say but that I felt, as an orthodox Jew who would not assist an assisted dying, that I did not think that I could go through the voting Lobby. That sounds to me the appropriate way.

Having said all that, I do not want to hold up this debate—but I fear that we are getting very close to the end. I want to make a few points on points that have been raised so far. My Amendment 2 would allow the recognition that, most of the time, in spite of what the noble Lord, Lord McColl of Dulwich, said, it is not the medical practitioners in my experience who have a conscientious objection but a whole range of other people—the operating department assistants and the porters, for example. Again and again, I have seen porters in hospitals where I have worked who have felt that they would not want to wheel a trolley into the room where a patient is going to have a termination of pregnancy. Sometimes one has been able to accommodate that. However, as we all know, the NHS is under massive strain with resources, and that becomes difficult.

I believe absolutely, and in all conscience, that the amendments that I have tabled would make this Bill workable; I think that that is possible. There is a way through this. The noble and learned Lord, Lord Mackay of Clashfern, kindly referred to one of the amendments that I tabled, Amendment 25. One point of that amendment is that it shows that the Bill covers not just obstetrics, gynaecology and termination of life but pretty well every medical area that we have specialities in, where we really have to reflect on these issues of conscience. That has been spelled out in that amendment—although it is an open question as to whether it is well written or not—to make it very clear that this affects the health service to a very great extent, and this is an issue for this Bill.

At the moment, I think that the only other fellow of the Royal College of Obstetricians in the Chamber is the noble and learned Lord, Lord Mackay. In the debate in 1989, his speech introducing the Human Fertilisation and Embryology Bill was the most amazing speech. In 20 minutes, he did what nobody has been able to do in the journal Nature, in my profession. It was a brilliant exposition of where we are, and I am hoping that I might persuade him, as one of the two fellows in this Chamber, to set up in private practice when this is over, doing in vitro fertilisation.

The difficulty has become the definition of what conscientious objection involves, as my noble friend Lord Brennan, said, and that is something that we should look at. We cannot simply have the narrow view of a few professionals who would be affected by this measure. It has to cover the whole service, as it does, for example, with in vitro fertilisation.

Assisted Dying Bill [HL]

Debate between Baroness Finlay of Llandaff and Lord Winston

Friday 16th January 2015 Lords Chamber

[Baroness Finlay of Llandaff]

I am grateful to the noble Lord for that intervention. If they have been misinformed—it is not the diagnosis of the disease that is wrong but the prognosis—and they then take the lethal drugs, they are not there to outlive the wrong prognosis.

[Lord Winston]

I might be able to assist the noble Baroness’s arguments slightly. Is not the whole House aware of one of the most famous cases, the person accused of the Lockerbie bombing? He was examined by numerous doctors, in particular Karol Sikora, who is probably the leading cancer expert in the country, who, after great consideration, considered that this man had only three months to live. He was therefore allowed to leave the United Kingdom. In fact, I think he survived for either three or four years.

[Baroness Finlay of Llandaff]

I am grateful to the noble Lord for that illustration, which is very clear and well known to all Members of the House. It is for that type of reason that I have proposed the removal of the word “reasonably” from Clause 2(1)(b) of the noble and learned Lord’s Bill.

A number of clinicians have tried to predict prognosis—for instance, whether to take the risk of a heart or lung transplant, and when to introduce palliative care in non-cancer services for the frail elderly. However, they have found that they just cannot determine time. Prognostication is reasonably accurate on the population level but, as the noble Lord, Lord Winston, has just illustrated, it is not accurate at an individual level at all. It is no better than tossing a coin. Indeed, different studies have shown that a prognostication expecting someone to live for more than a year is not too awfully wrong. Similarly, expecting somebody to die within a month is more likely to be accurate than inaccurate. However, in the interval in between you honestly could toss a coin on it. It is for that reason that I suggested that, if the prognosis in the Bill really is to deal with those people who are distressed during their dying phase, the prognosis section should be shortened to six weeks.

There are other aspects to prognostication that I will point out to the noble and learned Lord, Lord Falconer. The national clinical director for end-of-life care told the commission that he chaired that predicting the course of a terminal illness is “fraught with difficulty”. In 2004 the RCGP made the same point to the Select Committee chaired by the noble and learned Lord, Lord Mackay:

“It is possible to give reasonably accurate prognoses of death within minutes, hours or a few days. When this stretches to months then the scope for error can extend into years”.

The Royal College of Physicians, giving similar evidence, said that,

“prognosticating may be better when somebody is within the last two or three weeks of their life … when they are six or eight months away from it, it is actually pretty desperately hopeless as an accurate factor”.

More recently, we have seen in the report from the inquiry into the Liverpool care pathway, chaired by the noble Baroness, Lady Neuberger, how prognoses of death within 48 hours have sometimes turned out to be wrong. The report called for further research into improving the accuracy of prognosis within the last weeks to days of life.

Yet, in the face of all this evidence, we are being asked to consider legalising assisted suicide or assisted dying for people with a prognosis of six months. The only conceivable explanation is that that is what Oregon’s assisted suicide law says. However, Oregon’s law has been shown to be fallible in the matter of prognosis. Oregon’s own data show that the time from the first request to death by whatever cause, whether through physician-assisted suicide or natural causes, ranges from 15 to 1,009 days, which is two years and nine months. Washington’s data show that, among those being given a prescription for lethal drugs and therefore expected to die within six months, the range was three to 150 weeks. I note that, in every year of that legislation since it has been passed, patients have lived well beyond 24 weeks or six months. The percentage ranges from 5% to 20% of a request for death.

The plain fact is that prognosis of “terminally ill” is highly unreliable over a range of six months. The DS 1500 has been used as a way to allow patients to access benefits rapidly, without having to go through assessment hoops. However, as those who have filled them out know only too often, it is only a guesstimate. Very often, patients vastly outlive the prognosis. We have had to have difficult conversations about how they should now go through the complete assessments. I tabled a Question to ask whether the Department for Work and Pensions collected data on the DS 1500. Unfortunately, it does not. It would be interesting to know for how many months that benefit had been drawn.

The plain fact is that this is unreliable. As a practitioner in the field, I can count the number of terminally ill people whom I have treated. I have not tallied them up among the thousands that I have looked after, but I could bore this House for weeks with the number of clinical stories of people who were expected to die within six months and who stayed alive for much longer. Those are the reasons behind these amendments. I hope that those who are arguing sincerely that the Bill aims to try to improve the dying process in those last days and weeks of life will seriously consider that they are asking people to make a prediction on which there really is not a scientifically accurate basis.

Criminal Justice and Courts Bill

Debate between Baroness Finlay of Llandaff and Lord Winston

Monday 20th October 2014 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I apologise for coming in just after my noble friend Lady Meacher had started speaking, due to traffic congestion. I am most grateful to her for having put the amendment so clearly. I endorse the point that nobody, but nobody, thinks that wilful neglect is all right. It is not all right. It is not to be allowed to even happen let alone condoned. The problem is that the burden of proof on the individual and on the organisation that employs them has been set at different levels as the clauses are currently drafted. The requirement is to prove gross neglect for an organisation but that had not appeared in relation to the offence committed by the individual. The difficulty is proving intent.

I had a meeting with the Minister at which he spent a great deal of time—I am very grateful to him—and he replied fulsomely with a long letter following that conversation. I remain unconvinced that the Bill will not effectively result in healthcare professionals being hung out to dry—that was a phrase I used before and I use it again—by an organisation that does not support its clinical staff adequately when serious complaints come in. At the end of the day, it is not wilful neglect but it is interpreted and viewed by understandably distressed relatives as neglect of their relative who may have suffered serious harm within the system or become extremely ill because of the progress of the disease. Although the work conditions for the staff have made it extremely difficult for them to function well, they have not been guilty of wilful neglect.

I stress that I do not think this applies only to nurses and doctors. If a physiotherapist or an occupational therapist declines to comply with a request from a patient or their family, that could be interpreted by the family or patient as wilfully withholding something that they feel they need. There is then some unintended adverse incident further down the line that was not predicted and the complaint goes against that healthcare professional. No one should underestimate how damaging it is to a healthcare professional to have a complaint made against them, and how most extremely conscientious healthcare professionals can feel quite destroyed by a complaint. However, an accusation of wilful neglect that goes to the police would certainly destroy somebody’s professional reputation. Even if it proceeds no further, they will find it very difficult to shed the trauma of that experience of being referred to and investigated by the police.

I hope the Minister can clarify exactly how intent will be interpreted and implemented, and how it will be proven that an organisation has intent to neglect patients. I suggest that the organisation can prove that it did not directly intend to but, actually, if it is really badly managed and is not supporting its front-line workers, it is neglecting patients because it is not allowing its staff to do their duty properly. However, I can see that such an offence would be very difficult to stick anyway. Certainly, if the burden of proof is higher for the organisation than for the individual, as I said before, I foresee that people will be hung out to dry.

[Lord Winston (Lab)]

My Lords, I hope I will be forgiven a short interjection on the amendment, which I fully support, particularly the points raised by the noble Baronesses, Lady Meacher and Lady Finlay. Perhaps I can best illustrate the point I want to make by telling a true story to the Minister, who I know is a very compassionate man. I think, like me, he will feel extremely angry about this particular incident within our health service.

My next-door neighbour was ill for years with Parkinson’s disease and, eventually, was so incapacitated that he had to be taken into care because he could not be looked after at home. His wife reluctantly saw him go into care. When eventually he became comatose, he was admitted to the Royal Free Hospital in Hampstead. His wife went to visit him every day while he was comatose. She used to speak to him and a nurse came up and said, “Madam, I don’t know why you are speaking to him because, of course, he can’t hear a word you are saying”. The nurse did not recognise that an unconscious patient is often fully capable of hearing and at least mentally responding if they cannot physically respond. In a sense, that is a pretty neglectful issue.

After a while, my neighbour’s wife—I should say that her husband has since died—then went to the nursing station and said, “My husband has not been washed or shaved for five days. He is lying in bed in a very dishevelled state and I feel very unhappy about this”—she is a very polite woman. The nurse in charge said, “That is not my job. I have nothing to do with that”. She was then rather cursorily directed towards a ward orderly. She said to the ward orderly, “I wonder if there is any possibility that my husband could be washed and shaved”. The orderly simply said to her, “That is not my priority at the moment”.

Does the Minister feel that that is wilful neglect? It seems to me to be a question of definition. I am sure that he feels, as I do, that this is not a criminal offence and not suitable for punishment with imprisonment. It is certainly suitable for a reprimand and for proper management in a ward of a teaching hospital.

Sadly, this kind of incident is not rare. It goes on all the time and goes on particularly, as we all know, in wards with distressed, elderly people, some of whom are sometimes completely irrational and sometimes mentally disturbed and wandering. Often they are treated with grave disrespect at the least—and often they seem to be treated with a good deal worse. I do not believe that that is wilful neglect, but if this amendment is not passed or some form of it is not accepted, there is a real possibility that people who should not be in court and should not be charged by the police may find themselves charged with a criminal offence. That would be absolutely wrong and very bad for our National Health Service.

Health and Social Care Bill

Debate between Baroness Finlay of Llandaff and Lord Winston

Monday 27th February 2012 Lords Chamber

[Lord Winston]

My Lords, perhaps I may deal very briefly with one area of medicine with which the noble Lord, Lord Patel, and I are particularly familiar. One problem raised is that increasingly general practitioners are doing minor surgical procedures; increasingly in practice, often in groups. I know of one large practice in south-east England, for example, that is now carrying out a procedure called a hysteroscopy, which is an endoscopic or telescopic examination of the inside of the uterus. This is quite a specialised procedure designed to identify cancers of the uterus at an early stage. The problem is that general practitioners may well be able to carry out this procedure somewhat more cheaply than gynaecologists in a practising group. Of course, there is clearly a conflict of interest here, because they may well be in the very practice that is also commissioning this procedure, and a patient might perhaps be wrongly given a particular treatment when a slightly more expensive treatment, done elsewhere, may be more effective and reduce the risk of the cancer.

[Baroness Finlay of Llandaff]

My Lords, this group of amendments and this debate has focused on conflicts of interest. For clinical commissioning groups, conflict of interest will arise where the leaders of the groups have financial interests, but also where private companies which may have separate provider arms competing as a qualified provider are contracted to provide commissioning support. The other area of conflict which has not been addressed is where quality rewards for commissioning are linked to financial performance of clinical commissioning groups. Further, there are cases where local medical committee officers are key officials in a clinical commissioning group.

The clinical commissioning group is meant to represent the constituent practices. Indeed, there have been articles in the press about commissioning support and commissioning support organisations. Many of those have raised alarm among clinicians who have become increasingly concerned by the talk revealed in the press about the profit to be made by commissioning support organisations. There has also been a realisation that profit going to the commissioning support organisations will reduce the amount of money going into the provision of core NHS services at any level—whether in the community or in secondary care and the hospital sector.

Several amendments are tabled here. The amendment in the name of the noble Lord, Lord Hunt, is very comprehensive and deals with an area which the other amendments do not. There is also an amendment, on which my name is the first, regarding conflict of interest. I can see that Amendment 79A is more detailed than the amendment which I have tabled, and therefore goes further and would be better. However, I am concerned that it does not go quite as far as the amendment in the name of the noble Lord, Lord Hunt, and that some of the principles in there need to be incorporated into Amendment 79A if the Government are minded to accept that amendment. We may have to come back to amend the amendment should it be accepted and incorporated.