House of Lords Select Committee on Assisted Dying for the Terminally Ill Bill
Examination of Witnesses (Extracts)
Thursday, 9 September, 2004
Witnesses examined
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Professor John Harris, University of Manchester,
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Professor Sheila McLean, Glasgow university,
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Dr. Evan Harris, a Member of the House of Commons,
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Miss Deborah Annetts Chief Executive, Voluntary Euthanasia Society
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Mr. T.L. Barclay
Q5. . . .
Miss Annetts: Lord Joffe has noted concerns around Section 7 and may
well be putting in an amendment to Section 7 in relation to the obligation
to refer on to another medical practitioner. However, if you look at the
evidence from Oregon and from the general public in the UK, they see the
medical practitioners as the person they want to help them at this critical
time, and that marries up with the evidence from Timothy Quill, who is a
palliative care consultant in the States. He said it is very important for
the medical profession, for the doctor, not to abandon the patient at the
end of life. There is a concern that, if the doctor almost sub-contracts
this role, and if that were the provision in the bill, then the patient
might feel a sense of real abandonment. Notwithstanding that, of course, the
conscientious objection clause is absolutely vital.
Dr Harris: To add to that, the problem you cite is not a new dilemma
for doctors-for example, the abortion procedures they are faced with, having
to refer to someone else if they have a conscientious objection. There will
always be areas of practice where doctors need to refer because they are
opposed to participating in the process. If the process is lawful, then I
think we have a right to expect doctors to make the onward referral, even
if, as this bill does, it provides a conscientious objection, which is well
recognised as something that is reasonable to do. My understanding is that
this has not been a major problem in other jurisdictions where this has been
made possible. The other point I would make is that it is always useful to
make the comparison with the more passive situation where a patient refuses
treatment that is life-saving, and they do not need even to be suffering
from unbearable suffering, however that is defined, or even have a terminal
illness, because if they have the capacity they are entitled to make that
decision. Some doctors, I am sure, would find that even more distressing
because they know there is a life-saving or ameliorating treatment that a
patient, for whatever reason, is rejecting. Again, that is not a new
dilemma, and I suspect, based on my own career, that all doctors have seen
situations that they are not entirely happy with but they recognise that,
when it is a question of patient autonomy, that has to override their
unwillingness and unhappiness about referring this case, or participating if
they are not a conscientious objector.
Thursday, 9 September, 2004
Witnesses examined
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Professor John Harris, University of Manchester,
-
Professor Sheila McLean, Glasgow university,
-
Dr. Evan Harris, a Member of the House of Commons,
-
Miss Deborah Annetts Chief Executive, Voluntary Euthanasia Society
-
Mr. T.L. Barclay
Q20 Lord McColl of Dulwich: I was interested to hear that there
was a proposal to modify Lord Joffe's Bill as far as protecting doctors and
nurses who may not wish to be involved in this process. I was also
interested to read that that part of his Bill is exactly the same, word for
word, as in the Abortion Act 1967. Bearing in mind that at least two
Professors of Obstetrics in the UK had their lives made a living hell simply
because they insisted on doing abortions "within the law"-that was their
only crime-not to mention hundreds of midwives and budding obstetricians,
who had to emigrate for the same reason, how confident are you that the same
thing will not occur with this Bill?
Miss Annetts: If I may start by answering that and perhaps then
pass it on to my colleagues? That certainly has not been the case in The
Netherlands or in Oregon, where the doctors may decide, for conscientious
objection reasons, not to assist the patient. So, again, drawing on that
evidence, I would hope that that would not happen in the UK. The crux of
this is about finding that partnership between the patient and the doctor,
finding the balance in relation to autonomy between these two parties. I
think it is very important that, in the same way that we are asking for
respect for the wishes of somebody who is dying, who is suffering
unbearably, that respect goes the other way, from the patient to the doctor,
for example, if the doctor feels that they cannot assist for conscientious
objection reasons.
Professor Harris: The issue of how we protect our citizens who act
in good faith out of conscience is an important one-it arises in animal
experimentation, it arises on the other side of the abortion debate as
well-and of course we have a responsibility to protect people in the
appropriate exercise of their conscience, and we should see that that is
done.
Lord McColl of Dulwich: My point is that the wording in the two
Bills is identical. It did not work with the Abortion Bill, whatever one may
feel about abortion, and I am asking what is the basis of your confidence
that it is going to work for this Bill?
Lord Joffe: May I intercede there, my Lord Chairman, because it is my
intention to amend the Bill so that it is not obligatory for a doctor who,
on conscientious grounds, refuses to assist the patient to die. The Bill
will be changed. The reason for this is that the Human Rights sub-committee,
when they considered this particular provision, came to the conclusion that
it was probably contrary to the European Convention of Human Rights to place
that obligation on doctors. So I was intending formally to bring this to the
Committee's attention when I presented the Bill to the Committee next week.
Thursday, 16 September, 2004
Q70 The Lord Joffe. . .The second amendment removed the obligation upon
physicians who had a conscientious objection to the Bill to refer patients
who ask for assistance to die to a physician who is willing to provide this
assistance. This amendment is necessary because the Joint Select Committee
on Human Rights in its
Twelfth Report this year was of the opinion that while, and I quote,
"the safeguards in the current Bill would be adequate to protect the
interests and rights of vulnerable patients", the existing requirement on
conscientious objectors contravenes the provisions of the European
Convention on Human Rights.
Thursday, 21 October, 2004
Witnesses examined:
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Dr. Michael Wilks, Chairman, Medical Ethics Committee
-
Dr. Vivienne Nathanson, Director of Professional Activities, British
Medical Association
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Professor Sir Graeme Catto, President, General Medical Council
-
Ms. Jane O'Brien, Head of Standards, General Medical Council
Q297 Lord Carlile of Berriew: My third question is, again, a
practical question. As I see it, if this proposal becomes law, one will
face, for example, in brain injury teams or in spinal injury teams,
sub-specialists of great skill and with differing opinions on the issue,
some possibly favouring assisted suicide and being able to square it with
their consciences and others having considerable and deep conscientious
objection to it being carried out. Although there is a conscientious
objection clause in the Bill, do you think that is sufficient to meet the
practical problems which might arise, if you think they would arise, in such
circumstances?
Professor Sir Graeme Catto: Once, again, sir, it is my personal
opinion. When we are looking at patients with complex medical conditions in
that situation, then I think potentially there is a problem with that kind
of clause, at least in the short term. Nevertheless, I am quite sure that
from a professional point of view it is essential to have some kind of
conscientious exclusion clause along the lines which you indicate but I
think there may well be practical problems where you have a small group of
doctors looking after critically ill patients whose continuity of care
matters.
Dr Wilks: If I may add to that. We deal ethically and practically
with certain conscientious objection scenarios, such as abortion and
contraception. Both the BMA and, more particularly, the GMC (because the GMC
has the power to interfere with our ability to practice as doctors; all the
BMA does is just provide disapproval of its members, which is not perhaps
quite such a harsh penalty) would always argue that it is part of the
doctor's responsibility, where conscientious objection is present, that
another doctor should be found to take on that care. If there are practical
difficulties in providing a doctor of the same level of specialty and
competence, I can see there is a theoretical problem. I do not know how
often that would happen.
Q298 Lord Carlile of Berriew: Would you regard it as right for a
doctor who has conscientious objection to carrying out this procedure to be
required to refer the patient to another doctor who does not have
conscientious objection to the procedure?
Dr Wilks: Yes.
Q299 Lord Carlile of Berriew: You would?
Dr Wilks: Yes.
Thursday, 21 October, 2004
Witnesses examined:
-
Dr. Michael Wilks, Chairman, Medical Ethics Committee
-
Dr. Vivienne Nathanson, Director of Professional Activities, British
Medical Association
-
Professor Sir Graeme Catto, President, General Medical Council
-
Ms. Jane O'Brien, Head of Standards, General Medical Council
Q316 Lord McColl of Dulwich: Could I come back to the Royal
College of Physicians. Nine months ago they decided unanimously that they
were against the Joffe Bill. Nine months later, they suddenly changed and
said, "We are neutral", and we were told that was because of the radical
changes in the Joffe Bill. Actually, if you look at the changes, they are
pretty minimal. The question is why this radical change has come. Those of
us who have worked in medical committees for many years can have a pretty
shrewd guess as to why that was, but my question is what does the GMC and
the BMA think of the view-and the Royal College of Physicians have managed
to persuade all the other colleges to adopt this view to be neutral-that we
are happy for the community to decide and, whatever they decide, we will do?
Is the GMC and is the BMA happy to go along with that? and, if the people
say "Yes, we want euthanasia", then you will go ahead and agree to
dispatching patients? That is the first question. The second: the
conscientious clause in the Joffe Bill as originally drafted is exactly the
same as the clause in the Abortion Act. word for word. We know what happened
in the Abortion Act. We know of the widespread discrimination against
obstetricians and midwives who were not allowed to take consultant jobs and
obstetric jobs because they were asked in the committee "Will you take your
share of abortion?" and, if they replied "Yes, I will do abortion within the
law", they were never appointed and hundreds had to emigrate. The lives of
two professors of obstetrics, one in Birmingham and the other in Aberdeen,
were made living hell. Why? Because they insisted on living within the law.
Professor Sir Graeme Catto: I will try to answer some of these
first. Why the change in position? I have no idea, of course, is the honest
answer to that. But let me try to speculate, if I may. The guidance that the
General Medical Council puts forward for all doctors is called Good
Medical Practice. It needs to change and be modified from time to time
but it is important because it is not aspirational. If doctors do not abide
by the guidance, then action may be taken against their registration: they
may have restrictions put on their ability to work or there may be more
severe measures. Over the course of some years, that guidance has changed. I
was interested when we were talking earlier about medical education and the
"c"s-the caring and that. I think the General Medical Council has moved in
the direction of partnership with patients, so you come immediately into a
conflict here where some patients may be requesting something that at the
present time is unlawful and that precludes further conversation. I think
there is a trend within society. Certainly, within the General Medical
Council we are coming to revise our guidance next year, and I do not want to
anticipate what is happening. But I am sure we are going to be emphasising
more and more that need for doctors to work in partnership with patients and
to respond to their needs and not just provide high quality care. That is
essential, of course, but perhaps not in itself sufficient. I think the
movement in society generally may be in that direction, but that is
speculation. If I could just pick up one of the other points, this
difficulty in raising issues of end-of-life events. My background as a
physician was on dialysis and transplantation, so patients were not on
ventilators but they were competent, and conversations about withdrawing
treatment were very frequent. That did not frequently result in treatment
being withdrawn but the topic was raised-and generally raised by patients.
And, of course, patients themselves speak amongst themselves: they have
groups, patients' associations, and these topics do arise from time to time.
I do understand the difficulty between withdrawing treatment and what we are
talking about here, but, nevertheless, I think society is discussing these
topics in a much more open way than perhaps they were.
Dr Nathanson: In terms of "happy for the community to decide,"
quite clearly, with all ethical issues, it is a mixture: it is a partnership
between the professions and the public that we serve. Whether that actually
means that you then derogate any interest or any responsibility to try to
influence that decision . . . Of course it cannot mean that, and the role of
doctors, when looking at a law that would have an impact on the way that
they practise, the relationship they have with their patients, or any other
element of medical practice, is clearly to comment on that law and, indeed,
to lobby for changes in that law if we believe it to be completely wrong.
Generally speaking, we have never been in the business of saying to doctors
"You should disobey the law", but there are occasions, perhaps rather more
frequently, that we will work very hard to get potential legislation changed
when we think it might have a devastating impact on the delivery of care to
patients. For example, 20 years ago, with the first Police Bill, the
Association was extremely active in getting major changes. It was eventually
withdrawn and we have a Police and Criminal Act which is considerably
different. Because of the ability in the first draft legislation for the
police to trawl medical records and the impact that would have had on
doctors entering sensitive information in patients' notes, or, indeed,
patients being prepared to say to doctors things that they did not want
potentially to be seen by the police, it was clearly important to change
that. In a sense, that is why we are here today, because we feel that there
is a risk-and you cannot prove it until something has happened-that this
legislation could undermine that trust, which is particularly important for
the most vulnerable members of society, that they are able to have in their
doctors that the doctor will act in their interests, and in an informed way
in their interests, helping them to make decisions based upon the balance of
what they believe to be beneficial and what they believe to be burdensome.
Dr Wilks: May I make two very quick points. I speak as a member of
the Ethics Committee of the Royal College of Physicians. I was not
particularly surprised about their studied neutrality; I was a bit more
surprised about the College of General Practitioners, because my impression
was that they had more of a robust view against assisted death legislation.
But I think the Royal College of Physicians, being unencumbered, as it were,
with a political process that requires them to consult their members about
policy-which is a burden I have to carry-did have a very balanced debate. I
think their perception, rightly or wrongly, Lord McColl, was that changes to
Lord Joffe's Bill did allow them to adopt a position of neutrality because
they felt that some of the kind of autonomy issues-you know, the power being
given to the patient to make decisions-was improved, and I think that
produced the kind of balanced response. I do think what you say about the
consequence of being a conscientious objector historically is really
important. Appalling discriminatory actions were taken against doctors who
held certain beliefs. I may not agree with their beliefs, but they have a
right to have them, and they certainly should not lose their positions in
the NHS as a result of that. I would only say that, with the kind of
equality legislation that we have and the anti-discrimination legislation we
have and the increasing frequency of tribunals that are dealing
satisfactorily with cases of doctors who have been discriminated against, I
would hope that is a thing of the past.
Q317 Lord Patel: My Lord Chairman, as we are on record, I think,
if you do not mind, I would make a comment about that. Whilst that may have
been the case in the early days of the implementation of the abortion law,
also there were accusations made about discrimination the other way: doctors
who did not have conscientious objection were not appointed to consultant
points because in the region it was found that they did not wish to provide
a service. There were both sides represented. I think we should put on
record that the status now is that included in the college guidance produced
by the Royal College of Obstetricians and Gynaecologists, which I believe
has not changed which is that, at the appointing committee, conscientious
objection to abortion is not a reason not to appoint the person.
Dr Wilks: Yes. Absolutely.
Thursday, 21 October, 2004
Witnesses examined:
-
Dr. Michael Wilks, Chairman, Medical Ethics Committee
-
Dr. Vivienne Nathanson, Director of Professional Activities, British
Medical Association
-
Professor Sir Graeme Catto, President, General Medical Council
-
Ms. Jane O'Brien, Head of Standards, General Medical Council
Q340 Chairman: I must say that, when I came to look at this Bill
first, I had rather assumed that the attending physician would be in the
nature of a general practitioner who has the care of the patient year after
year, and would probably have quite a considerable relationship with the
patient and would know well the patient's attitudes and so on. I assume that
in the sort of cases we are discussing now of spinal injuries or a terrible
accident or something it might not be the attending physician, in the
definition in the Bill, applied to these circumstances, and it might not be
the patient's general practitioner at all.
Professor Sir Graeme Catto: Indeed, probably would not be. It
comes back to the point that Lord Carlisle made earlier about acquired
referral. It may be very much more complex in a practical sense how this
might be implemented, were this to become law; but in theory it does not
present any greater challenges to the General Medical Council than that.
There are significant practical implications in the delivery of this, when
it does become law, allowing for the conscientious objection clause. . .
Q344 Chairman: If that is the situation, what would be the
position of an attending physician who had a conscientious objection to the
law in relation to assisted suicide, and was therefore exempt under the law
from having any part whatever in that sort of situation?
Dr Wilks: Accepting the detailed concern that Lord Carlisle
produced about the kind of level of specialty and difficulty of finding
alternative doctors, I do not believe that would present a difficulty in
terms of the doctor's duty to explain and inform and discuss options. The
difficulty would present itself when it would be for the doctor to say, "I
have discussed these options with you"-and we believe it would be the rare
circumstances if this was an Act-and the patient would say, "I would like to
discuss further the practical issues around assisted suicide". The doctor
would then conscientiously have to withdraw from that discussion and refer
the patient to another doctor who was prepared to not just have that
discussion but to follow the discussion through to a decision.
Q345 Chairman: Is it your view that the conscientious objection
might not, or need not, or would not cover discussing at all with the
patient the option of assisted suicide?
Dr Wilks: To take an every-day example of abortion, the discussion
about abortion being either a sensible option for the patient or a bad
option for the patient is something that can occur in a discussion with a
doctor who might have objections to it. In practical terms, patients tend to
go to doctors who are supportive of abortion if they want an abortion; so I
guess you might well find in certain circumstances that that shift would
occur. The discussion of euthanasia would be a common discussion, an
everyday discussion, in the sort of clinical environment that Baroness
Finlay works in because we would be required to discuss it if it was an
available option. Not to discuss it would be unprofessional.
Q346 Chairman: That is what I had rather taken from what you said
earlier. This option would be an obligatory subject of discussion for any
doctor?
Dr Wilks: With many patients in certain scenarios, of course.
Tuesday, 18 January, 2005
Witnesses examined:
-
Dr. David Cole
-
Baroness Greengross, a Member of the House
- Professor Raymond Tallis
- Dr. Georg Bosshard
- Dr. Carole Dacombe
Q1935 Chairman: I am thinking from your own point of view.
Dr Dacombe: From my own point of view, I think the safeguards I would
want to see in any system, in terms of what would be expected of a doctor
involved in the care of the patient, do actually exist in this Bill,
inasmuch as I do believe it is very important, whether you are talking about
a general physician or a palliative care physician, that it should be
possible for you to have a conscientious objection to being involved in the
process. I think it should be possible for people to define for themselves
within the limits of their own conscience whether or not they feel a need to
do anything, whether they feel able only to provide a prescription which
gives the patient the means by which they can choose to end their own life,
or whether they would be prepared actually to carry out an act or assist the
patient in carrying out an act to end their life.
Tuesday, 18 January, 2005
Witnesses examined:
-
Dr. David Cole
-
Baroness Greengross, a Member of the House
- Professor Raymond Tallis
- Dr. Georg Bosshard
- Dr. Carole Dacombe
Q1954 Baroness Finlay of Llandaff: The Bill at which we are
looking at the moment asks for palliative care to be involved. Within your
own team, where I am sure you have discussed this, how does your team view
you being the person who is the person who will give physician-assisted
suicide or even a lethal injection to a patient?
Dr Dacombe: We have discussed these sorts of issues at some length.
Generally speaking, I have encountered much more of a positive response to
the concept of this Bill than a negative one across the disciplines, because
there has been a universal recognition within our team that the patients to
whom I have alluded do exist who make this request. I think that, generally
speaking, the team would certainly like to see this in existence as an
option for patients. Given the issue of conscientious objection which is
built into the system, they are supportive, in being able to have a positive
view of patients being able to access assisted dying and yet knowing that
they or any of their colleagues could opt out of the process. I think that
obviously is important, as has been encountered in other areas of medicine.
Tuesday, 18 January, 2005
Witnesses examined:
- Ms. Michelle Wates
-
Dr. Jim Gilbert
-
Professor John Finnis
-
Dr. Fiona Randall
Q2020 Lord Joffe:re doctors here who support this Bill
and who would be prepared to implement it.
Dr Randall: I would assume that there are. What I am saying to you
is that it becomes complicated if the doctor that is the patient's attending
physician wants to conscientiously object and then the patient has to be
passed to another doctor who then becomes the attending physician, so the
patient's care by the definition of the Bill then has to be passed to
another doctor and then you have to find a consultant physician in the right
speciality who is happy to do it. It could become rather an onerous process.
My main concern about the Bill is the effect of the doctor/patient
relationship and the position it puts doctors in, which I think is
unnecessary if society in the end decides that it is in the interests of the
majority of its members to legalise these processes. . .
Q2021 Lord Joffe: There were doctors who appeared before us this
morning who actually said that in their view many doctors would see it as
important to remain involved with their patient's right to the end and not
to abandon them.
Dr Gilbert: I was impressed by the question asked by Lord McColl
about on what grounds a doctor might object to being excluded from the
actual process of administering medication and I did not hear an answer to
that.
Q2022 Lord Joffe: Are you taking a different view from Dr Randall
who does not want doctors involved at all?
Dr Gilbert: No.
Q2023 Chairman: Not involved in the actual process of assisting
the suicide or the dying.
Dr Gilbert: Indeed. I am taking precisely the same view. I do not
know where the misunderstanding has arisen.
Q2024 Lord Joffe: Let us get it clear. Do you accept that the
doctor could give the prescription for the drugs?
Dr Gilbert: Certainly the doctor could, although I think that
would be wrong as well. I think in doing so it entails a moral judgment that
agrees with the patient that their life is no longer worth living. I think
that may be one of the reasons why we see this disparity between those
people who profess that they wish their lives to be ended and the very few
people who actively take steps to commit suicide despite the availability of
medication. I think they need that psychological "push from the bridge" and
that moral judgment, which is often expected of doctors, to agree with them
that the best thing overall would be for them to end their lives. We could
achieve clarity about that by excluding doctors from the process.
Q2025 Lord Joffe: I think there is a misunderstanding as to the
role of the doctor. The role of the doctor is to ensure that the various
safeguards in the Bill have been complied with. It is not to form a judgment
on whether it is a wise decision or an unwise decision of the patient.
Dr Gilbert: If you will forgive me, that seems to run counter to
me to much of the evidence this morning which seemed to include doctors
looking after patients towards the end of life as the final thing that they
could do for the patient. I think that was positively described. What are
they doing there? Simply a legalistic assessment of whether the safeguards
have been met.
Q2026 Chairman: It is perfectly plain that what the Bill envisages
is not only that the doctor will see that the safeguards are in place but
also, assuming the safeguards are in place, he or she will either, as in the
case figured in the preamble, actually do the necessary procedure to end a
patient's life or will provide the necessary medication for the patient to
end his or her life.
Dr Gilbert: Yes. It seems to me there could not be a clearer
enactment of agreement that that would be the best thing for that patient
than co-operating in that process.
Q2027 Chairman: That might not be so because if a doctor says to
me that I should have a life prolonging treatment and I do not want to have
it and I say no, the doctor is then precluded from giving me the treatment,
although he or she does not believe that my decision is the right one and
thinks I should have accepted their advice. The mere fact is that the doctor
who does carry out the patient's wishes in this particular case would not
necessarily imply that the doctor agrees with the patient's view of the
matter. He or she would be simply complying with the patient's request made
in accordance with the rules and so on.
Dr Gilbert: But actively doing so.
Q2028 Chairman: Yes, actively agreeing or actively accepting the
patient's request. You may say that no doctor would want to do that unless
he or she agreed and the doctor cannot be obliged to do it, the doctor may
have objections to doing it. I think you are saying that for the doctor to
do it would imply in your judgment that the doctor had agreed that it was
the best course open to the patient in the circumstances. All I am saying to
you is that it does not necessarily follow, although it might be a difficult
position for the doctor to be in if he was injecting somebody to end their
lives at a time when he thought it was not a good thing to do.
Dr Gilbert: Indeed.
Dr Randall: There is a parallel distinction here in other parts of
health care. A patient can always refuse treatment if the patient does not
want it. I know there is legal argument about it at the moment, but
currently patients cannot require a doctor to perform a treatment that the
doctor really feels is going to result in overwhelming harm and not benefit.
So the parallel is with, say, a patient requesting a surgeon to do an
operation where the surgeon says the risks of it far outweigh any possible
benefits. The surgeon has the power to refuse and the responsibility to
refuse.
Q2029 Chairman: He would not incur the responsibility of carrying
out the operation unless he thought in the circumstances it was the right
thing for him to do.
Dr Randall: Yes. What this Bill is about is doctors being asked to
do something at the request of the patient. It is not being asked for
doctors to stand away and refrain from treating the patient, it is asking
the doctors to do something. So it is about the patient having a positive
right to require that from the health care profession who then have a duty.
If the patient has a right to physician assisted suicide or euthanasia some
part of society has a duty to provide it and this Bill gives the duty to
doctors.
Q2030 Chairman: I think I am right in understanding Dr Gilbert to
say that he would assume that a doctor would not carry out one of these
procedures unless the doctor agreed that it was appropriate in the
circumstance.
Dr Gilbert: That is exactly my position. Otherwise, while
providing a patient with a lethal prescription or indeed administering that
lethal prescription, he would be at one and the same time saying, "This is
something that I think is wrong. I still value your life; I think you should
still value your life."
Q2031 Chairman: If the doctor has made a conscientious objection
it would not be happening in any case with that doctor. But the case that
you are figuring is the case of a doctor who has not got a conscientious
objection against doing it at all but who in the particular circumstances of
the case thought it was not an appropriate request from the patient for
various reasons. Although the legal background and the legal safeguards had
been fulfilled, the doctor still thought that it was not an appropriate
course to take in that situation. You say that if he then carries it out it
is to be assumed that he agrees that it is the appropriate course in the
circumstance. Is that right?
Dr Gilbert: That is right.