Lord Joffe - Assisted Dying Bill
This is a good time to express support to Muslim colleagues at a time of great difficulty after the London bomb outrages. There is little doubt that they are suffering from prejudice and possibly criticism, though the vast majority of members of their community are law abiding and good citizens. The tradition of tolerance, and respect, is maintained by the majority in this country. Through organisations like the Medical Ethics Alliance, the hand of friendship is being extended, as we recognise the contribution that our Muslim colleagues make to the profession.
Mr Leslie Burke is suffering from a progressive degenerative neurological disease. He knows that he will ultimately be unable to swallow and have difficulty in communicating. He wants his wishes respected and to receive food and fluids with medical assistance when the time comes. He applied to the High Court to have this positive advance directive upheld and Mr Justice Munby QC ruled that his wishes should be determinative save where it would lead to an “intolerable life” and that the current GMC guidelines on withdrawal of withholding ANH are unlawful and also ruled that questions over ANH should be determined by the courts in many instances.
The GMC, and the Department of Health appealed, and the MEA joined Alert and others in intervening on his behalf. The main points of our intervention, which was put by Mr James Dingemans QC in Court in May, were that we supported the concept of a high legal threshold, namely, an “intolerable life” for non treatment decisions, but that his request should otherwise be determinative. It was pointed out that there is a huge difference in powers between the patient and Health Trusts. We also gave details of a number of cases where health Trust doctors had made inappropriate and unaccountable decisions to withhold ANH. Attention was also drawn to the case of David Glass where the European Court of Human Rights had been critical of a Health Trust for not referring a dispute to Court.
The Court of Appeal of Lord Justice Phillips and Lord Justice Wall and Waller on 28 July overturned much of the judgement of Mr Justice Munby. It rejected his wide ranging arguments, instead confining judgement to the issues facing Mr Burke. They ruled that his fears were unfounded and that he should be fed as long as he was competent and could communicate.
at 53 in Burke v GMC (C1/2004/2086) they say;
"We have indicated that, where a competent patient indicates his or her wish to be kept alive by provision of ANH any doctor who deliberately brings the patient's life to an end by discontinuing the supply of ANH will not merely be in breach of duty but guilty of murder. Where life depends upon the continued provision of ANH there can be no question of the supply of ANH not being clinically indicated unless a clinical decision has been taken that the life in question should come to an end. That is not a decision that can lawfully be made in the case of a competent patient who expresses the wish to remain alive".
They also said that in determining the patients best interests of incompetent patients;
at 29;
"It seems to us that it is best to confine the use of the phrase "best interests" to an objective test, which is of most use when considering the duty owed to a patient who is not competent and is easiest to apply when confined to a situation where the relevant interests are medical".
a point we have long made in the face of wider and more dangerous interpretations.
at 32;
"A fundamental aspect of this positive duty of care is a duty to take such steps as are reasonable to keep the patient alive. Where ANH is necessary to keep the patient alive, the duty of care will normally require the doctors to supply ANH. This duty will not , however, override the competent patient's wish not to receive ANH.".
The evidence of the MEA was mentioned specifically, and the cause for concern arising from the cases we had put before the Court, but that they were “not evidence” as such "but underline the importance of clear law in this area". The Judges said that though not unlawful, the GMC guidelines could be better drafted and there was a need for training in them throughout NHS hospitals.
Leave for appeal was not given but it is likely that Mr Burke will petition the House of Lords, and that if the Human Rights issue is not resolved it may progress to Strasbourg. The principle of whether death from thirst was a breach of Article 3 (inhuman treatment ), was not addressed by the Court of Appeal.
Lord Joffe`s “Assisted Dying for the Terminally Ill Bill [HL]”
This was put to a Select Committee of the House of Lords who, in term invited submissions, and the MEA and Guild of Catholic Doctors made contributions which are reproduced in full in the official report ( Vol. II, HL Paper 86-2, 2005 ) .The report of the Select Committee now comes into the House of Lords on 10 October. Lord MacKay, its chairman, said that the report was neutral but the main thrust is that it lends support to Parliament reconsidering the issues. Lord MacKay is suggested that if a future bill is introduced it should distinguish between euthanasia and assisted suicide so that a decision may be made on either or both. Lord Joffe has indicated that he will bring in a new bill and it is widely expected that it will be based on the Death with Dignity Act which came into force in Oregon in 1998 and which provides for doctor assisted suicide . The Select Committee was more or less evenly divided on the main issues and the House is though to be similarly divided. What is certain is that any complacency or view that “it couldn't happen”, is the surest way to let it through. The position of the government on Lord Joffe`s bill is one of “neutrality” and they declare themselves “listening”. The Times, in July said they may even give the bill parliamentary time. This was how abortion was passed, by a private members bill, free vote and extra time. If you are minded to lobby, then contact your MP, or write to any peer at Westminster.