Lord Wolfson of Tredegar
Main Page: Lord Wolfson of Tredegar (Conservative - Life peer)
Lord Carlile of Berriew (CB)
My Lords, as a former, if somewhat historic, member of the General Medical Council, I can confirm that the GMC has no guidance relating to ending someone’s life because it is, at the present time, simply unlawful to end someone’s life.
I hope that I can try to simplify what is being discussed. I agree with the noble Lord, Lord Blencathra, that there is a need to add something, though possibly not very much, to this Bill to ensure that consent, as consent, is included. We are talking about four stages. The application is not consent; it is just an application. Capacity is measured and is not an application. The discussion described in Clause 12 is a discussion, and I say to the noble Lord opposite that it is most definitely not the obtaining of consent. Then there is the issue of obtaining consent, which includes the effect of any drugs to be used, and that is what I think the noble Lord, Lord Blencathra, is seeking to add to this Bill.
Let me briefly give an example from my own experience. I had an extraordinarily formidable and occasionally difficult mother, and on one occasion she had a heart attack, not long before her death. She was taken into a very good cardiology unit in Blackpool, so I rushed up to Blackpool at high speed and found myself on the ward with my mother—whose eyesight and hearing were not good, but her brain was as good as any in your Lordships’ House—and a consultant. The consultant explained that he could do an operation which he had done once on a male patient aged 91, but he was prepared to try it on my mother. She was very enthusiastic to have any medical treatment that might prolong her life, which, after all, had by then lasted for only 98 and a half years.
Once we had had the discussion, the cardiologist proffered a consent form to me. My reply, which I will abbreviate, went something like, “Not likely; she is perfectly capable of consenting herself. But it must be explained to her so that she can hear it clearly. So, why don’t you sit down while I explain what you have said to me, and you correct me if anything is wrong?”
In due course, she signed the consent form and had the operation. Happily, the operation was entirely successful. Sadly, the effect of the operation gave her such a pounding heart that the rest of her bodily functions could not cope with it. She died a few weeks later. When she said to me during the period before her death, “Darling, I never thought it would end like this”, I thought to myself, thank God she signed the consent form, not me.
Consent has a conspicuous and real meaning. It requires full understanding from the patient. It can go horribly wrong, as it unfortunately did for my mother. I wish we had been able to celebrate her 100th birthday. But that element of consent, consent, consent—a bit like “education, education, education”—is not clearly set out in the Bill. It is not a major change to be made, and I would invite the noble and learned Lord to incorporate it.
Lord Wolfson of Tredegar (Con)
My Lords, the amendments in this group seek to establish a higher bar for reaching eligibility by requiring that informed consent be demonstrably shown. There are also amendments in the group tabled by my noble friend Lady Lawlor that seek to ensure that the patient has been made to understand the physiological effects of the drugs used. I will deal with each of these points, but fairly briefly, given the time.
Demonstrable consent is primarily a question of workability. It is the view of everybody, so far as I have heard, that a person must consent to receive assistance. The Bill allows assistance only if the person themselves takes the final step, which is in itself an important safeguard. But these amendments pose important questions for the Minister. What work have the Government done to date on establishing a process to ensure that all those receiving assistance under the provisions of the Bill will in fact have consented? What checks will there be on the service providing this assistance? How will Ministers and others respond to complaints or allegations of malpractice in relation to a person’s consent? All those questions touch on the key point: the practical day-to-day implementation of the Bill and ensuring that its provisions are complied with.
Most of the speeches in this group have dealt with the second issue—the amendment from my noble friend Lady Lawlor. It stands to reason that a person in receipt of assistance should be given all the information they need to ensure that they are making an informed choice. Certainly, that would seem to include the physiological effects of the drug they will take. When patients receive any drug or have any medical treatment, a doctor will explain the proper dosage and how it will affect them, and they will also advise on potential side effects. One would assume that the same level of explanation would be provided by doctors in this case, but I am interested to hear whether the Minister and/or the noble and learned Lord the promoter of the Bill will confirm that in due course.
My noble friend Lady Berridge threw me something of a curveball when she asked what the duty on a doctor is. That is a detailed question and, given the time, I will not give a very detailed answer, but it is notable that—this is an important point because it shows how things have changed over the years—if you go back, quite a long way, to the Hippocratic Corpus in the fourth to fifth centuries BCE, it advises physicians to reveal nothing to the patient of their present or, indeed, future condition,
“for many patients through this cause have taken a turn for the worse”.
Lord Falconer of Thoroton (Lab)
I am not sure whether the noble Lord is asking that in the context of giving information or of doing it negligently. The effect of Clause 33(2) is that nothing prevents the obligation on the doctor to act with reasonable care towards the patient. If, carelessly, the doctor failed to set out all the risks or maladministered the assistance, either the patient or the estate of the patient would have a claim against that doctor for negligence. There might be a dependency claim as well.
Lord Wolfson of Tredegar (Con)
I am sorry, but I think the noble and learned Lord has not quite picked up the noble Lord’s point. Of course, if the doctor does not explain it properly, or if the doctor maladministers the drug, there is liability in tort. As I understood the point being put, the doctor has explained it properly and the patient has administered the drug properly under supervision, but the patient has not died and is writhing around, for example. What is the doctor then meant to do, consistent with their duty of care to the patient? As I understand it, that is the question. I do not know the answer, but that, I think, at least is the question.
Lord Falconer of Thoroton (Lab)
In response to the question from the noble Baroness, Lady Finlay, regarding the complications, that has to be agreed in advance. I did not think that that was the question from the noble Lord, Lord Stevens.