All-Party Parliamentary Pro-life Group Briefing

Patients’ Protection Bill [HL]

2^nd Reading Date: 12^th March 2003

Why is this Bill being introduced?

This Bill is about restoring integrity and coherence to the law of homicide. Until 1993 the common law was quite clear. It was always wrong to aim to bring about (that is, to have as the purpose of one’s conduct to bring about) another person’s death for any reason other than the requirements of justice. This common law principle is enshrined in Article 2 of The European Convention for the Protection of Human Rights and Fundamental Freedoms.

The Bland judgement.

Until the House of Lords judgment in the Bland case in 1993 it was a clearly understood part of the common law that murder can be committed not only by a positive act but also by omission in situations where there is a duty to provide what is omitted. This covered doctors, who owe their patients a duty of care.

Anthony Bland was a victim at the age of 17 of the Hillsborough football disaster in 1989. The part of his brain necessary for thinking and feeling was extensively and permanently damaged due to lack of oxygen. However, he was neither dead, nor dying. His brain stem was still functioning; he was breathing unassisted and digested food that was supplied through a tube.

His doctors and parents wanted to stop the feeding and medical care on the ground that it served no useful purpose. The courts were asked to adjudicate and on the 4^th February 1993, the House of Lords upheld a previous declaration that it would be lawful to withdraw feeding and medical care. Tube feeding was withdrawn from Tony Bland and he died of renal failure, consequent on dehydration, on 3^rd March 1993.

Their Lordships held that to stop feeding Tony Bland was an omission. Tube feeding was medical treatment which the doctors were under no duty to provide because it was not in the patient’s best interests, was futile, and was a course of conduct endorsed by a responsible body of medical opinion.

The purpose of stopping tube feeding was to put an end to the life of the Tony Bland. Prior to Bland, such conduct was incompatible with the duty of care owed to a patient. Following Bland conduct aimed at ending a patient’s life, providing it counts as an omission, may well be deemed as compatible with the exercise of the duty of care for a patient if doctors judge that patient’s life no longer worthwhile.

Implications of the Bland judgment.      

Patients in the permanently unconscious condition Tony Bland was in are not the only individuals to have been adversely affected by that judgement. Gradually it has been extended to cover other patients. In June 1999 the BMA published guidance on Withholding and Withdrawing Life-prolonging Medical Treatment in which they considered it appropriate to withdraw tube feeding from “patients who have suffered a stroke or have severe dementia”.

Tube feeding or sustenance is not medical treatment. It is basic care. Many people with cystic fibrosis are fed by gastric tube and live an otherwise normal life. Others with paralysis of the throat and swallowing mechanism feed via nasal tubes.

Tube feeding is being withdrawn from patients like Tony Bland or those who have suffered a stroke or have severe dementia because doctors and others judge that their lives are no longer worthwhile. This is wholly incompatible with the respect for the worth and dignity of every human being which forms the basis of our laws.

To allow doctors to withdraw sustenance from patients with the purpose of ending their lives subverts the law of murder. Hence the urgent need for this Bill.

What does the Bill aim to do?

The Bill aims to clarify the law in relation to the provision of nutrition and hydration (‘sustenance’), however so delivered, to patients. It would make it an offence for any person responsible for the care of a patient to withdraw or withhold sustenance if his purpose in doing so is to hasten or otherwise cause the death of the patient.

How does the Bill do this?

The Bill focuses on “the purpose” of the person responsible for the care of a patient. This draws upon the common sense understanding of the notion of ‘purpose’ which is integral to the law and to ethics. We always distinguish someone’s purpose in acting from other consequences, even those which may be foreseen.          

If a person responsible for the care of a patient withholds or withdraws sustenance with the purpose of causing death, their conduct will be unlawful.

Will the Bill obstruct good medical practice and leave doctors at risk of prosecution?

Nothing in the Bill obstructs good medical practice. The Bill does not make unlawful the withholding or withdrawal of sustenance from a patient who is in the process of dying and where the placement of feeding tubes would be regarded as unduly intrusive and inappropriate or where the risk of placing the feeding tube would be excessive. This is far removed from the deliberate withholding or withdrawing of sustenance with the purpose of causing the death of a patient who is not otherwise dying.

The Bill does not impose any requirement on doctors to strive to keep alive patients who are dying. We believe that the role of doctors in terminal illness is to provide as peaceful and pain free death as possible.

‘Purpose’ is the key. Those responsible for patient care should not fear this Bill. When sustenance is withdrawn for ethically and legally acceptable reasons the data about a patient’s clinical condition and the observations of other carers will support the person responsible for the care of the patient.

Will the Bill restrict patient autonomy?

No. A doctor’s respect for a competent patient’s refusal of sustenance would involve no intention on his part other than a concern not to commit the tort of battery, of which he would be guilty in imposing sustenance contrary to a competent patient’s wishes.

Will the Bill prevent proper consideration of an incompetent patient’s ‘best interests’?

The Bill does not restrict extensive consideration of a patient’s ‘best interests’. Those responsible for patient care cannot reach reasonable decisions about whether the placement of feeding tubes would be regarded as unduly intrusive and inappropriate or where the risk of placing the feeding tube would be excessive without careful consideration of the clinical best interests of the patient.

Why we would urge you to support this Bill.

In his judgement in the Bland case Lord Mustill acknowledged that the law in this area “is already both morally and intellectually misshapen”. The Patients’ Protection Bill seeks to correct this.

Food and water, or sustenance, is a basic human need that should never be withdrawn or withheld if the purpose in so doing is to hasten or otherwise cause the death of the patient.

Sustenance is being withdrawn and withheld from patients in our hospitals with the clear purpose of causing death. To purposefully starve or dehydrate patients to death is unethical and should be illegal.

We urge you to support the Patients’ Protection Bill. Please attend the 2^nd Reading debate on the 12^th March 2003. If you wish to speak in the debate we will be happy to provide you with further information.

For further details please contact: -

Martin Foley – Clerk to the All-Party Parliamentary Pro-life Group

c/o Jim Dobbin MP

House of Commons

London

SW1A 0PW

 

Tel: 020 7219 0968

Fax: 020 7219 2696

Email: foleym@parliament.uk