1 The legal background: the need for the Bill
A doctor who intentionally (purposefully) hastens a patient's death by an act commits murder. Until 1993, it was equally unlawful for a doctor intentionally to hasten a patient's death by omitting medical treatment (or basic care). Unfortunately, in that year the Law Lords ruled (in the Tony Bland case) that it can be lawful for doctors intentionally to kill patients in a persistent vegetative state by withdrawing tube-delivered food and fluids. This ruling gravely undermined the law's historic prohibition on the intentional killing of patients. As Lord Mustill observed in that case, the ruling left the law in a "morally and intellectually misshapen" state: prohibiting medical killing by an act, but allowing it by omission; prohibiting active euthanasia but permitting passive euthanasia.

2 What the Bill will do
The one and only aim of the Bill is to restore the law's moral and intellectual shape by restoring its prohibition on purposeful killing by the withholding or withdrawing of medical treatment or tube-feeding.

Clause 1 of the Bill provides:
"It shall be unlawful for any person responsible for the care of a patient to withdraw or withhold from the patient medical treatment or sustenance if his purpose or one of his purposes in doing so is to hasten or otherwise cause the death of the patient".
"Sustenance" is defined in Clause 2 as "nutrition or hydration, howsoever delivered". It therefore includes food and water provided orally or by tube. The Bill will clearly make it (as it was until 1993) unlawful for any person responsible for the care of a patient to withdraw/ withhold medical treatment or food and water (whether delivered normally or by tube) with a purpose of hastening the patient's death. Nothing more, nothing less.

3 What the Bill will not do
Criticisms of the Bill have been based on gross misunderstanding of what it will do, and what it will not do.

10 questions and answers will clarify the misunderstanding of the Bill by its opponents:

Q1: Will the Bill weaken the patient's right to refuse treatment, whether while presently competent or in advance of incompetence (by way of "advance directive")?
A1: No. The Bill does not change the existing law relating to consent or weaken the patient's right to refuse treatment or tube-feeding. It in no way prevents a doctor from withholding/ withdrawing treatment or tube-feeding with a purpose of respecting a patient's valid refusal, whether the refusal is contemporary or made in advance of incompetence (by "advance directive"), and whether or not it will hasten death.

Q2: Will the Bill prevent doctors from taking into account an incompetent patient's values, beliefs and views of the degree and type of treatment they would want or not want?
A2: No. Doctors will remain free to take account of all such matters in deciding whether treatment would be in their patients' best interests, or whether it would not be. The Bill will simply prohibit doctors from trying to kill their patients by omitting treatment.

Q3: Will the Bill require treatment to be given and maintained in all circumstances?
A3: No. Doctors will remain completely free to withhold/withdraw treatment because it is futile or too burdensome, or refused by the patient.

Q4: Will the Bill prohibit omissions which will foreseeably hasten death?
A4: No. It prohibits only omissions with a purpose of hastening death.

Q5: Will the Bill prohibit the withholding/withdrawal of tube-feeding in all circumstances?
A5: No. Only withholding/withdrawal with a purpose of hastening the death of the patient.

Q6: Will the Bill weaken the rights and best interests of the patient by its reference to the purposes of the doctor?
A6: No. Precisely by disallowing omissions with a purpose of killing, it restores the patient's right, recognised in Article 2 of the ECHR, not to be purposefully killed.

Q7: Will the Bill create ambiguity by its use of the word "purpose" instead of "intention"?
A7: No. The ordinary meaning of "intention" and "purpose" is the same: "aim". But a common legal meaning of the word "intention" is "aim or foresight (of a virtually certain consequence)". The Bill seeks to prohibit doctors only from aiming to hasten death, not from merely foreseeing the hastening of death as a side-effect. The width and ambiguity of the word "intention" is precisely why the Bill uses the word "purpose" whose ordinary and legal meaning is the same: aim, not foresight.

Q8: If the Bill is passed, will doctors be afraid to administer palliative drugs or to withhold/withdraw treatment lest their purposes be misconstrued?
A8: No. First, in relating to giving palliative treatment: the Bill deals only with omitting not giving treatment. How could a doctor possibly fear prosecution for giving treatment under a law prohibiting omitting treatment?
Secondly, in relation to omitting treatment: after the enactment of the Bill, a doctor whose purpose was, say, to omit a futile treatment need no more fear prosecution for purposefully hastening death by omission than, under the present law, a doctor who administers palliative drugs to ease pain need fear prosecution for purposefully hastening death by an act. (Indeed, given the Bill's use of the narrow word "purpose", the law on killing by omission will be even more reassuring to doctors than the present law on killing by an act, which uses the word "intention" with its wider legal meaning including foresight.)

Q9: How can we know whether a doctor's purpose in withholding/withdrawing treatment or tube-feeding is to hasten death? Will the Bill require every one of the doctor's purposes to be considered?
A9: First, one would ascertain the doctor's purpose on the basis of all the available evidence, just as one would under the existing law if the doctor were suspected of purposefully hastening death by an act. And, as the House of Lords Select Committee on Medical Ethics observed, juries are asked every day to ascertain purpose in all sorts of cases and could do so if there was any reason to suspect that the doctor's purpose was to kill.
Secondly, the Bill prohibits a purpose to kill by omission, just as the present law prohibits a purpose to kill by an act. Only a purpose to kill falls foul of the Bill: other purposes (to respect refusals of treatment, to withhold/withdraw treatment because it is futile or too burdensome) do not.

Q10: Why does the Bill not seek to define a patient's "best interests" or "welfare" or what is "futile" treatment?
A10: Such a complex undertaking, bristling with problems, is well beyond the scope of this Bill. If the Government think such a difficult enterprise should be undertaken, this Bill does not prevent it from trying.

Conclusion
Opposition to the Bill has been based on serious misunderstanding. The Bill would only affect doctors (and others responsible for patient care) who try to kill their patients by omission. The practice of doctors who do not try to kill their patients by omission will be completely unaffected by the Bill.

During the Second Reading debate, the Parliamentary Under-Secretary of State for Health stated:
"When a patient is in hospital there is no doubt that the doctor owes the patient a duty of care. That certainly includes a requirement not to kill the patient intentionally by any means, action or omission".

She added that the Bill "deals only with the doctor's intentions or purpose". Even if she had not added this, it is obvious that anyone who kills with a purpose of killing kills "intentionally", (even if some lawyers use the word "intentionally" to go beyond purpose and include foresight).

In short, the Government claim that it is already unlawful to do what Clause 1 declares to be unlawful. Why, then, is the Government opposed to the Bill?

It is difficult to know how anyone can oppose the Bill unless either they have seriously misunderstood what it is trying to do, or they condone the purposeful termination of patients' lives by omission, that is, passive euthanasia.

Do the Government and the BMA condone purposeful killing by omission? If so, their position is as morally and intellectually incoherent as the current law, for it obviously makes no moral difference whether a doctor tries to kill patients by an act or by an omission. And if they do condone passive euthanasia, then their opposition to active euthanasia is gravely compromised.

Dr John Keown MA DPhil
University Lecturer in the Law & Ethics of Medicine
Faculty of Law, University of Cambridge;
Fellow & Tutor, Queens' College, Cambridge.