Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

I beg to move amendment No. 86, in

clause 1, page 1, line 6, leave out from 'capacity' to the end of line 7 and insert

'in relation to any matter, except where it is established in relation to a particular matter on a particular occasion that he lacks capacity'.

Mr Alan Hurst (Braintree, Labour)

With this it will be convenient to discuss the following amendments:

No. 1, in

clause 1, page 1, line 6, after 'unless', insert 'and until'.

No. 2, in

clause 1, page 1, line 7, after 'capacity', insert

'relevant to the particular situation'.

No. 3, in

clause 1, page 1, line 7, at end insert—

'(2A) Even where a person may lack capacity, he is entitled to respect for any feelings he may have'.

No. 4, in

clause 1, page 1, line 11, at end insert

' or has made unwise decisions in similar past situations'.

No. 91, in

clause 1, page 1, line 13, after 'made', insert 'for his benefit and'.

No. 5, in

clause 1, page 1, line 13, after 'interests', insert

'or in accordance with his advance decision under section 24 of the Act'.

No. 6, in

clause 1, page 1, line 13, at end insert—

'(5A) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity, shall if valid be treated as of equal validity as if it had been made by the person himself'.

No. 7, in

clause 1, page 1, line 15, after 'effectively', insert 'or adequately'.

No. 8, in

clause 1, page 1, line 16, leave out 'rights and'.

No. 90, in

clause 1, page 1, line 16, at end add—

'(7) An act done, or decision made under this Act for, or on behalf of, a person who lacks capacity must not be done in a way that is less favourable than the way in which it would be done or made by a person if they had capacity in a comparable situation.'.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

Thank you, Mr. Hurst. I welcome you to the Chair and look forward to serving under your chairmanship during the consideration of this most important Bill. As other hon. Members have noted, and as I said on Second Reading, the Bill has been 15 years in the making. It is the product of considerable consultation, Green Papers, White Papers and numerous other processes of consultation and dialogue. It arrives here in Committee with several issues that are still giving people outside the Room cause for concern, so the Committee provides an important opportunity to explore with the Government their willingness to take on board further worries by way of amendments, to consider our amendments and to table their own, and to discuss the approach that they intend to take to deal with some of the concerns that have been expressed.

One of the central concerns that the group of amendments addresses was raised in a joint statement about the Mental Capacity Bill by the I Decide coalition, copies of which have been provided to members of the Committee. The second paragraph of the statement sums up the worry that some people have about the Bill and states:

''We are worried that if the Mental Capacity Bill becomes law disabled people will be stopped from making the 'small' day to day choices like eating the food we like and dressing in clothes we feel good in, right to what happens to our bodies together with the enjoyment of going out to work and having fun, moving home and having friends and relationships and in short having a life!''

The coalition referred to having a life—a quality of life, an ability to make one's own decisions. The principles set out under clause 1 are all about saying that such people should have the same rights as everyone else, which is the purpose of amendments Nos. 86, 91 and 90. Amendment No. 86 attempts, by judicious rewording of the clause, to ensure that the principles of the clause benefit from the functional

approach. Capacity is the underlying basis on which the Bill is intended to operate and is both specific to the decision that is being made and specific to the time at which a decision is taken.

A person's capacity may vary; it may well vary as a result of the way in which capacity was lost—due to a head injury, for example. It may vary due to the nature of the medical condition. So it is important that we state specifically in the Bill that that is how the principles should be read and understood. That will guard against the people who take decisions assuming that a person is incapacitated because he cannot make decisions about a specific matter. In other words, the person may be unable to make a decision about complex medical treatment, but can certainly make decisions about the clothes and shoes he wants to wear, the type of recreation that he wants to take and the type of food that he wants to eat, which goes very much to the argument advanced by the I Decide coalition.

The second amendment tabled in my name and that of my hon. Friend the Member for Chesterfield (Paul Holmes) relates to what is contained in the equivalent Scottish legislation. When the Joint Committee considered the draft Bill just over a year ago, many of us on the Committee were struck by the representations that we received from organisations across the spectrum in support of including a clearly articulated set of principles at the beginning of the Bill. It is to the Government's credit that they took on board that concern and accepted the recommendation of the Joint Committee. Now there is such a set of principles in the Bill.

However, one of the words omitted from the English set of principles but included in the Scottish set is ''benefit'' in respect of acts done to or treatments received by a person. That word is not just a luxury add-on; it has an important meaning in terms of how one assesses best interest and decides the right way to proceed when considering whether a treatment will be beneficial to an individual. Will the Minister rehearse why it was felt inappropriate to include the word ''benefit'' in the English legislation but not in the Scottish legislation?

Mrs Angela Browning (Tiverton & Honiton, Conservative)

I concur with the hon. Gentleman about the word ''benefit''. Clearly, parts of the Bill will seek to prevent detriment. The assumption should not be made that anything in the middle is simply benign.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

The hon. Lady makes an important point. That is why I hope that, through the amendment, we can explore with the Government how they came to the conclusion that the word should be left out of the English legislation. I hope that the Minister will respond to that point.

Amendment No. 90, the final amendment in the group, relates to a subject that I raised on Second Reading, and to a matter that was at the heart of quite a few of the concerns expressed on both sides of the Chamber on that occasion, namely, the idea that a principle of non-discrimination should be fundamental to the Bill. It may well be argued that

such a principle is implicit in the Bill so the amendment is unnecessary, but it should be made explicit that non-discrimination is a founding principle of the legislation.

I make no apologies for the fact that the drafting of this amendment—and my other amendments today—comes from the Making Decisions Alliance, which represents a wide range of organisations of and for disabled people, older people and others. It wanted to make sure that the wording on non-discrimination was an addition to the statement of principles in the Bill. The idea is about governing all the actions and decisions taken under the new legislation, and ensuring that the Bill is more value-based. The amendment attempts to reinforce the message that the aim of the Bill is to maximise capacity, to protect adults from abuse and to provide clarity to carers. The perception, as I said in my comments in respect of the I Decide coalition, is that it is not always that way.

We want a Bill that is seen as an important way of promoting people's basic rights and freedoms and a challenge to existing attitudes where necessary. I hope that the Government can respond positively to the amendment, as there is certain evidence, anecdotal and otherwise, that prejudices and attitudes about the quality of life of a person with serious learning disabilities, a head injury or another disease that leads to a loss of capacity can get in the way of dealing with that person and how they are, what they want, and what they need. I need only think of the evidence on the inappropriate use of ''do not resuscitate'' orders. The Government have addressed that issue in part by making sure that the guidance is renewed, updated and more closely adhered to in the NHS. I hope that we can include something in the Bill that says that those people should not be treated any less favourably than other members of society, not just in respect of ''do not resuscitate'' orders but right across the piece, in respect of medical treatment, social care provision and all aspects of a person's life. That, in a sense, is the purpose of this group of amendments.

I end with a couple of questions, which I hope will be in order. The draft code of practice is useful; it is a rarity for a code of practice to be published at this stage. Many who have seen it have commented that it is a work in progress and that there is a lot more to be done. Let us hope that our deliberations and those in the other place will help with that. However, I hope that the Minister will say a little bit today about the codes of practice and how the five—if my amendments are accepted, the six—guiding principles are to be disseminated, because communication of the principles and ensuring that they are understood and practised by individuals in their everyday lives and, more important, by professionals, is central to making this Bill one that changes lives for the better.

I hope that the Minister will respond to those concerns, give us some assurances and perhaps even accept some of the amendments.

Mrs Joan Humble (Blackpool North & Fleetwood, Labour)

It is a pleasure to follow the hon. Gentleman, because he is making some important points and is, above all, emphasising that the Bill will

empower many people in various different settings. The Bill is not just about patients in hospitals but about people in the community, which is a point that I wish to emphasise throughout our deliberations. He has rightly emphasised in his first amendment the functional nature of the Bill in determining whether an individual has the capacity for a particular decision, but I am not sure whether it is appropriate to amend the Bill and I look forward to hearing the comments of my hon. Friend the Minister.

There will be an issue around the codes of practice, because if we are to change attitudes, we have to be clear about the instructions and guidance that we are giving, especially to professionals in a social care setting. It is easy for people to assume that individuals with learning disabilities and variable mental health problems lack overall capacity, instead of finding out what their wishes are in a particular circumstance and talking to them. If one is a busy social care professional—a care worker in a home, or a domiciliary worker in somebody's own home—it is a lot easier just to get on with the job and not bother asking. They have limited time and go in and do things, instead of saying, ''Now, today should we talk about this, that and the other? What do you want to do today? What do you want me to do? What is your opinion on this? Should we go shopping? What sort of food do you want? We are going to make a decision about decorating your home.'' There might be a decision to be made about moving home. They should be saying to that individual, ''What is your opinion?'' They should determine whether he or she has the capacity to make such decisions.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

I am grateful to the hon. Lady for giving way. I want to pick up on that point, because although I agree that domiciliary care workers should be proactive and engaging, I am sure that she agrees that it is also essential that they have their ears wide open, react and are flexible and prepared to do things differently as a result of what is said to them.

Mrs Joan Humble (Blackpool North & Fleetwood, Labour)

That is exactly my point. In a way, this Bill will make life a little more difficult for those caring for people who have variable capacity or lack capacity, because it will challenge them by saying, ''You must make every effort to find out if the individual has the capacity to make this decision.'' That will also empower those being cared for; they will, for the first time, have safeguards in legislation so that they will be asked for their opinion, and then their capacity to make decisions will be assessed.

This is an important area, and I am sure that we will return to explore further what will be included in the code of practice and what training will be available to care workers looking after individuals. However, part of the process is getting the message across to families and informal carers. Right at the beginning of the Bill we have these key principles that will underpin everything that we do later.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

I begin by welcoming you to the Chair, Mr. Hurst. We have a certain interest in your part of the world, where I used to live, and I claim no credit for that, although it may be necessary to refer to it from time to time. That was by way of a preliminary, but we are delighted to see you in the Chair for what will be, I think, a demanding Bill for everyone.

The Committee has made a terrific start: I would not dissent materially in the least from the contributions of the two other parties, and I hope we will continue in such a way. We will have controversy about the detail and about how things are going to operate, as we should do, but we should not have a covert ideological argument about what the Bill seeks to do. All that is welcome.

The hon. Member for Sutton and Cheam (Mr. Burstow) had the honour of moving the lead amendment, and he put everything in the right context. He spoke of the need to reach the right balance, to respect the individual and to deliver effective care for them, respecting their feelings. I would not like to exclude the Minister, whom I welcome. Our previous dealings have been constructive, rather along the same lines. There may be occasions on which battle has to be joined, but not in this context.

The more that we discuss this issue and try to get the exactly right wording, the more the people whom we are concerned with and others in the caring professions will appreciate it, as will the professionals and legislators at the other end of the Corridor, who will eventually have the task of implementing the Bill. There is a real-world situation out there, about which both speakers have already spoken eloquently. The Committee needs to provide a sensible and sensitive regime for individuals and at the same time to recognise that that needs to be delivered through a framework of law supplemented by good practice and codes. That is not an easy objective, but it is one that we have to tease out.

The Minister knows that I have previous form as a serial amender. I cannot see draft legislation without seeking to tinker and mess about with it and ask impertinent and occasionally appropriate—possibly, occasionally inappropriate—questions about it. I apologise to him and the Committee in advance. I am no lawyer, and, as he knows, there is no greater fool than one who has himself for a lawyer.

I will be assisted by my hon. Friend the Member for Beaconsfield (Mr. Grieve), who is a distinguished lawyer and who, on his return, will no doubt bring the Committee back to the straight and narrow. Meanwhile, I have to suffice. I have tabled a large number of amendments. I am sure the Minister accepts that they are tendered in a spirit of inquiry rather than as an attempt to subvert the Bill.

It will be simplest if I use the order that I established and deal with amendment No. 1 first. In a real-world Bill that is important to people, it is appropriate to start with what seems a very lawyerly issue. This small amendment is wider than it might appear. Reference has already been made to the functionality test, which

is about whether a person has capacity. I jump ahead in saying that my amendment No. 2 is close to the thinking of the amendment tabled by the hon. Member for Sutton and Cheam. It is about where we start and the situation that we are in.

Amendment No. 1 is addressed to the situation of establishing that capacity has been lost. I seek to insert ''and until'' partly because it has a lawyerly ring about it; ''unless and until'' is not a phrase that often trips off the lips of the laity. However, I also seek to hammer home the point that somebody has capacity, or is assumed to have capacity, until an assessment has been made that they have not got capacity. I seek to add those two words to make the point that we start with the assumption that somebody is capable, although we may have to modify that in light of the circumstances or in relation to the particular decision being taken and take things from there.

Those are only two words, but they open a very wide perspective. I introduce that to the Committee early on because it needs to come in somewhere. Contributors to the debate have already made the point that this imposes duties as well as providing safeguards for carers and others who need to look after persons without capacity. One of the important activities implied in the principles stated here and the functionality test is that at any given time in any circumstance some kind of implied assessment of capacity has to take place. The Minister is a lawyer and he can probably help the Committee on this.

What I am feeling after is the concept that the decision maker—or the potential decision maker, in this situation—on behalf of somebody lacking capacity cannot close their mind to the fact that the person may have capacity or may have established capacity in relation to the particular act so that, for example, just because somebody did something silly in the past, or forgot something, or took a perverse decision, or appears to have a particular condition that is stable or may, sadly, be deteriorating, that does not by itself rule out the obligation on the carer or the person who is to take a decision on someone's behalf to establish the capacity as being lost.

Let us take that ad absurdum. I hasten to say that, even if the Minister thinks he will have 200 cases a year in the Court of Protection, I doubt, and very much hope not, that he will end up with 200,000. This means that if there is a population of between 1 million and 2 million persons who may lack capacity at any one time, and if decisions have to be taken for them that are multiples of that figure day by day—the ''Shall we go shopping?'' or ''Would you rather have Shredded Wheat or Weetabix for breakfast?'' questions as well as the more serious ones—there are, in theory, myriad decisions, all of which are about the existence or absence of capacity. There could be millions of decisions.

Quite apart from anything else, this is a serious legal issue in that one cannot run away from the obligation to establish a lack of capacity to the best of one's lights—I anticipate debates on the immediately

following clauses—by just assuming as a result of a one-off diagnosis that a person lacks capacity and is therefore ruled out of making the decision.

I am not seeking to create a lawyers' paradise in this matter, or to suggest that people will have recourse to litigation all the time, but I am making the point that at any one moment there is the possibility of a challenge about capacity. We will come back to that. The principle that somebody has capacity unless and until it is established that they lack it is very demanding, because it means that anybody who is associated with that person cannot close their mind to the possibility that they may at any stage recover, have an insight or be entirely the appropriate person to make that decision for themselves. Therefore, it is a very important principle.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

I agree with my hon. Friend. I am thinking in particular of people who fall within the spectrum of communication disorders and who, when faced with a choice that is beyond their imaginative scope, may not immediately be able to express a preference, but who after a certain time—during which they are, perhaps, introduced to the practicalities of what those choices are, which could be very time consuming—may be able to make a preference. The word ''until'' would be very important for that group of people.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

I am delighted that my hon. Friend—with her expertise particularly but not exclusively in the autistic spectrum—is serving in Committee. She makes a valuable point. What this means in the real world is that somebody, be it a carer, as the hon. Member for Blackpool, North and Fleetwood (Mrs. Humble) suggested, or somebody else dealing with the person, who may or may not lack capacity, has to consider at any one time whether they have done enough to determine whether the decision we are referring to is one that such a person could take.

I am more or less following the argument that the hon. Lady deployed, but one cannot just assume that one turns up, does the chores and says, ''Now get on with it.'' At any one time, one may be out of order in doing that if the person has re-established capacity or could have done so. I flag that up to the Minister because it is an important understanding, which we must have.

I mentioned amendment No. 2 and do not need to return to that. Amendment No. 3 again relates to a wider issue, but it would embody a new principle in the statement of principles. I concur with the hon. Member for Sutton and Cheam that it is an excellent idea to have a statement of principles. What I am discussing appears as a wider statement already; it is not just a couple of little lawyerly words.

I was trying to establish the fact that people who lack capacity are people. I think that that is another way of approaching the issues that have already been addressed and it is very important. Some people who have taken an interest in learning disabilities may have heard me say in relation to the Government's valuing people strategy that, even if one may disagree about details of implementation, the title and the concept are

hugely important. This is about establishing respect for people and is one of the reasons why I included the word ''respect'' in the amendment, which I drafted.

We all understand that we are seeking to provide that dignity and to recognise that human worth, which has not always been acknowledged in practice. Therefore, this is about establishing whether there is a lack of capacity at any one time. That is about taking a responsible approach to decision making, including the preliminaries to decision making, which are about whether capacity is present on the part of third parties.

The issue also involves respecting people who do not have mental capacity but still have feelings. Those may be physical feelings such as pain or emotions such as anxiety. I suspect—the hon. Member for Crosby (Mrs. Curtis-Thomas) was most eloquent on Second Reading about this—that they may reflect the fact that even if things are not easy for a person who is in a very distressing situation and has a serious stroke or trauma to respond to, such a person may have underlying concerns that are difficult to articulate but are not in any sense absent from their human condition. It is terribly important that we respond to those sensitively; I see no one in Committee who would not want to do that.

I had spells of insomnia last night, which shows that one should not get too close to the Bill. In the middle of one such spell I thought of ''The Merchant of Venice'', when Shylock says:

''If you prick us, do we not bleed?''

That is, perhaps, the most important general theme that we can achieve in our Committee. We must respect people, which is what amendment No. 3 seeks to do.

Amendment No. 4, which returns us to the day to day, is simply designed to record the fact that there is no read-across from past failures—whether there was capacity at the time or not—to the current decision. In a sense, it would put a gloss on what we already have. However, much of what I said about respect in relation to amendment No. 3 is taken up and would be better discussed again in relation to clause 4 (4), which members of the Committee who have read on in the Bill and are acute will notice that I seek to delete. The reason for that is to have a debate on what would happen and what it is to encourage a person to participate in a decision, whether they have capacity or not. Those are real issues.

Amendment No. 5 is my first shot at exposing the tension that I think many of us on the Committee feel, or need to acknowledge, between an advance decision, which may have been taken by an individual—not necessarily on a matter of life and death—and the best interests of that individual. We are dealing with principles, so perhaps it is more sensible to discuss that when we get to clause 25. Arguably, from my reading of clause 25(4), no advance decision could reliably stand up anyway if anyone could mount a plausible discussion about circumstances having changed. It is not an absolute in the way that a decision in best

interests may or may not be. We need to record in relation to subsection (5) the fact that there may be a tension between best interests at the time and an advance decision that has been announced or indicated.

Amendment No. 6 looks like a principle, and in a sense it is. In a strange way, it is a mirror image of amendment No. 90 on not discriminating against people, which was tabled by the hon. Member for Sutton and Cheam and with which I have no difficulty. However, my amendment says that the acts themselves are equally valid. That must be implicit, but I do not know whether it needs stating as a matter of law. If I take a valid decision on behalf of a person when I have established that they lack capacity, my decision, if it is valid and applicable—to use the phrase that occurs later on—is just as good as if they had made it themselves. I do not know whether there are any cases where that might cause difficulty in law, but it seems important to establish it as a principle.

Amendment No. 7 relates to the restriction on people's rights and freedom of action. The phrase used in the sixth principle in clause 1 is

''whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive''.

I have suggested adding the words ''or adequately'', because it would then mean that it was adequate to the purpose of the particular decision. Given how the principle is drafted, it seems as though efficacy is the main objective of the decision, which therefore trumps any suggestion that the person is taking their own decision on their own behalf.

I feel very strongly about this kind of thing. If a decision is adequate, rather than particularly efficient, we should even be allowed some discount on the result so as to represent the decision of the person involved. If we believe in non-restriction, unless it is clearly out of court because it would damage that person, we should be allowing a degree of flexibility in decision making without seeking to limit it by some test of efficiency.

Amendment No. 8 is probing on the second part of principle six, which talks about

''a way that is less restrictive of the person's rights and freedom of action.''

I am not clear on how a right is restricted, or what a right is. Is that a human right or not? Would it not be simpler to have one test? I have reservations about some things that the hon. Member for Sutton and Cheam wants to do about benefits, but we will return to that in a moment. If, heaven forefend, this proposal were ever to get into law, there will be cases where we need legal tests that are as simple as possible. There is a case for the legal test being, ''Does it restrict freedom of action, not rights and freedom of action?'' It might help the Committee if the Minister said what rights, other than freedom of action, might be curtailed.

I have spoken to my amendments, alluding to the contributions of the hon. Gentleman and the hon. Member for Blackpool, North and Fleetwood. We are feeling for something very important. We want the

individual to be enabled; we want them to have as much scope as possible to make their own decisions, where that is possible. We do not want their ''freedom of action'' to be inhibited—to use a phrase that is already in the Bill.

We are also trying to ensure that even if capacity is lost—that needs the careful assessment to which I have already referred—the person without capacity still has rights as a human being. They must still have the right to be treated with dignity and respect and the right to have their feelings considered at all times.

I cannot believe, and I am not seeking to suggest, that those principles are in any way contentious in this Committee. We want to get the most watertight and sensitive statement that we can, up-front in the Bill, so that that can inform everything else we do in the Bill and the codes. Those are not unreasonable requests to put to the Minister. I hope he responds adequately; in this case, I have fairly strong confidence that he will.

Mr Tom Clarke (Coatbridge & Chryston, Labour)

I welcome you to the Chair, Mr. Hurst, and I will try to be brief. We have had an interesting and well-meaning debate, which I trust augurs well for the rest of our deliberations.

I was tempted to intervene by the introductory speech of the hon. Member for Sutton and Cheam. I welcome him saying—if I understood him correctly—that he was making his remarks largely based on the advice of the Making Decisions Alliance. I have a very high regard for it, and its contribution to our work on the Bill has largely been positive and commendable.

My reason for speaking is the reference to the Scottish Act; I thought that this was as good a time as any to talk about it. In the Scottish Parliament, consultations were undertaken and those responsible for the Act listened to what people had to say, including those representing Enable. I see it as the sister body of Mencap, which is part of the Making Decisions Alliance and has a big input to the all-party group on learning disabilities. I have previously declared an interest because I am co-chair of that group.

I want the Committee to take the following view on board. It is perfectly reasonable that we should compare our legislation with what has happened in a devolved Assembly or Parliament even though, by its very nature, devolution means that our legislation need not be exactly the same. If that principle is accepted—I have a feeling it is—I think we may end up with a very good Act that is all the better for our considerations, but which may not be precisely the same as the Scottish Act, although it will reflect some things that are in it.

Curiously enough, I thought that the hon. Gentleman made a valid point when he asked a pertinent question about the word ''benefit''. I hesitate at this early stage to use the word ''omission''. There may not have been a deliberate policy of omission on the Government's part and they may have decided that

the wording is what they want, but it interests me to pursue the hon. Gentleman's question. I wonder why my colleagues have not included the word ''benefit''. I am very willing to be persuaded for the reasons I have given, but it is relevant and right that the question should have been posed.

Ms Claire Curtis-Thomas (Crosby, Labour)

I rise to express opinions on the definition of capacity and how we ensure that people have an opportunity to express their wishes.

The Bill deals with different groups of people, and it is easier to assess the capacity of some groups than others. Today, I have had a number of interviews with people who have made advance directives, all with motor neurone disease. They have capacity now, have made decisions on how they wish to be treated and are able to specify in significant detail under what circumstances they would wish treatment to be withdrawn or withheld. That is fine; they are a straightforward group to deal with. It is reassuring for their loved ones and carers to have an explicit understanding about what is going to happen. Similar groups of individuals—people with terminal cancer, for example—have considerable advance notice and a description of the physical conditions that they will go through.

Such people are relatively easy to accommodate and feel comfortable about our treatment of them. However, there is a group of people who become incapacitated suddenly. Any of us could walk out of here this morning, be run over by a car this afternoon and find ourselves incapacitated this evening. Such an individual would present us with a significant problem: they would not have put together a written advance directive, so we would not know whether they had spent time considering their position to the point of expressing it. They might have articulated what they wanted to do some time previously; therefore, there would be doubt about what that person wanted. Contesting individuals would come to the fore and lay claims in respect of what the individual might have wanted. This is a very difficult area.

What provision accommodates that type of person and situation such that the individual players—for example, the doctors, who have a Hippocratic duty—will be left feeling comfortable that their primary role in life has not been subverted by subjective arguments brought by others for the best of reasons? Also, how will individuals who feel passionately about a person feel that their will has not been subverted by a doctor with a different view about the worthiness or viability of the life concerned?

The next category of people who are incredibly difficult to look after are those with learning difficulties—people have variable capacities. I know something about people with learning difficulties, and, in many instances, their difficulty is specific. An impaired judgment and ability in one area may not necessarily mean an impaired ability in another.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

As ever, the hon. Lady is making a constructive speech. Does she agree that not only particular difficulties, but access to equipment or techniques that enable people to overcome such social or other decision-making difficulties, are important?

Ms Claire Curtis-Thomas (Crosby, Labour)

Yes, I agree. We must consider the issue of various abilities across different areas and activities of a person's life as well as the mechanisms that we employ to allow people to overcome those difficulties.

People with learning and communication difficulties present us with a real problem. I find it difficult to imagine how we, collectively as a society, should talk to 2 million people in this country about end-of-life decisions so as to ensure that they are left with some view of their desires. Carers will be drawn into that incredibly difficult discussion. I want to hear how our deliberations proceed and whether we are capable of coming up with a set of processes that allow us to deal with that adequately, so that we feel that the aspirations of the individual concerned have been heard and not subverted by the carers or by other individuals incidental to their life.

Finally, I want to talk about people who have intellectual capacity, but no real way of expressing it—people with locked-in syndrome and those who are presumed to be in a permanently vegetative state. I do not know about the experiences involving young children, but when the elderly are brought into hospital and have obviously had a stroke—such cases normally involve a stroke—or another condition that has induced a comatose or a semi-comatose state, presumptions are made at that time about the individual's capacity. I was certainly told that my mother was in a permanently vegetative state, because her physical manifestation and her semi-comatose state indicated that she had lost all capacity and there was no response whatever. In fact, it transpired that she was not in a permanently vegetative state, and I am deeply concerned that assumptions are made about individuals without any tests being carried out on them.

Ann Winterton (Congleton, Conservative)

I have listened most carefully to the hon. Lady's comments. Bearing in mind the assumption that is frequently made about people who are in a persistent vegetative state, does she agree that many doctors have admitted that it is an extremely difficult condition to diagnose? That makes it more likely that those assumptions will be widely made.

Ms Claire Curtis-Thomas (Crosby, Labour)

Yes, I agree, but I would like some objectivity to be brought to the discussion in which it is said, ''This person is in a permanently vegetative state.'' Relatives and carers want to know that that is indeed the case. Unless tests have been carried out, the opinion that is given to them is not credible. That said, if individuals are in a permanently vegetative state, the decisions that one might make about them are entirely different. I make this plea because I believe that the practice of diagnosis based

on the physical manifestations of an individual is frequently made on the basis of the experience of doctors who have treated such people, but as the hon. Member for Tiverton and Honiton (Mrs. Browning) said, delay in the decision making is essential.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

Might I add to the equation in the matter that the hon. Lady is discussing, which is complex and at the heart of the Bill, the fact that many decisions are made under terms that one can only describe as crisis management? Crisis management brings in all sorts of issues, whether they are life or death decisions or situations in which something that has suddenly happened to somebody, whether or not they previously had capacity, has an effect on the immediate decisions that need to be made about them. It raises the question of whether the resources are there to identify a real spread of options.

Usually it is resources that mean that one does not really do what is in the person's best interest, because what might be in their best interest simply is not available or offered at the time. Therefore, the time scale on which decisions have to be made—the hon. Lady has just touched on it—is absolutely key. That can be seen right across the spectrum, from a life and death situation to those important day-to-day decisions that have to be made about people when, none the less, time is needed if one is to do the right thing by them.

Ms Claire Curtis-Thomas (Crosby, Labour)

I could not have put it much better myself; I am in full agreement.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

To add to the extremely eloquent point that has just been made, are we not also creating a real crux for medical professionals and other decision makers? There is already a growth in litigation in our culture. Codifying the law and the procedures, and indeed codifying the issue of whether there is capacity, may trigger further litigation, particularly where there is a difference of implied interest in relation to the person concerned.

Ms Claire Curtis-Thomas (Crosby, Labour)

The Bill is a doubled-edged sword; it will produce a significant amount of litigation in cases where there are very different responses to a catastrophic incident involving a patient. For the doctor, a catastrophic case may be one in which the patient is presenting in a coma. The doctor may wish to wait to see how the patient responds to non-intrusive, non-burdensome medication. A person who is absolutely appalled by the presentation of their loved one and the situation in which that loved one finds themselves may desperately want them to be relieved of that condition as quickly as possible, because they have both discussed the situation and it is an absolute nightmare for them.

The doctor may say, ''I think that we ought to wait,'' and the individual may say, ''Here is the directive; we mustn't wait, we must act now.'' That is a real conflict of interest because—this could not happen under the situation today—that individual could go straight to court and say, ''I want the directive enforced.'' Doctors will be involved in conversations that they never had before. Some would say that that was a very good

thing, and it is not a bad thing, but there will be a significant amount of dispute. I want a time lapse to enable individuals to assess things realistically, away from the heat of that awful experience. There should be a period of reflection before decisions are enforced, so that the partners concerned—the doctor, the clinicians, the family, the carers and the nominated deputy—can see the viability of the individual concerned over a period during which certain procedures can be carried out that are not burdensome to the individual but allow everyone a short state of grace. Such procedures are possible in some cases, and we should strive to ensure that those cases receive that consideration.

Mr George Howarth (Knowsley North & Sefton East, Labour)

I, too, welcome you to the Chair, Mr. Hurst. This has been a constructive debate. People have taken different points of view, but they are approaching the matter in a constructive, helpful and thoughtful way.

I want to make a few comments about people with learning disabilities and, in particular, about two of my constituents, my experience with them and how that relates to the issue of capacity. The first constituent is a man in his early 50s whom I have happened to know as a family friend for more than 30 years. He has the capacity to make a lot of decisions for himself, and he does so successfully. He can choose what he wants to eat, what music he wants to listen to and what he wears, but when it comes to decisions about where he should live or whom he should associate with, there are difficulties. He has a loving and concerned family, and I have been involved intermittently in making some of those decisions with them.

My constituent is not going to change; he will never have the capacity to make a proper judgment about where he should be living and whom he should associate with, but he will—I hope for a long time to come—have the capacity to make a lot of decisions that are perhaps less important, but that affect his daily life.

In the second case, I have known the constituent for about 18 years—in other words, for as long as I have been a Member of this House. I am sure that we are all in the same position in that, largely because we make ourselves more available than other agencies, people find their way to us more easily than to other sources of advice. Over the years, I have become the one person whom he can walk in on. Sometimes, he shouts at me. He has access to me without qualification, so much so that occasionally I have been asked to go to case conferences where issues have had to be decided. I seem to have had a longer relationship with him than any social worker. I am not saying that to my credit; we have probably all had the same experience. He can make almost any decision for himself, if he is helped to do so. However, occasionally he will get it wrong. I shall not go into details.

Mrs Joan Humble (Blackpool North & Fleetwood, Labour)

My hon. Friend raises an interesting point that is covered by the Bill. There is a difference between having the capacity to make decisions and

making a wise decision. The individuals in both cases that he mentioned may have the capacity to make a decision, but the professionals may not agree with it and deem it to be an unwise decision. However, the Bill will still protect them. He and I may make unwise decisions, but we get on with it. It is to what extent we lead someone who may be deemed to be lacking capacity to also make an unwise decision that must be considered. It is a complex issue.

Mr George Howarth (Knowsley North & Sefton East, Labour)

My hon. Friend sums me up well; I do indeed make unwise decisions from time to time. Certain members of my family would agree strongly with her. I shall take account of what she said.

To continue with my second example, I want to point out that the person will occasionally get things wrong and, using the fourth principle, we could say that such choices are an unwise decision. For a long part of the time for which I have known him, however, he was in a relationship with a woman who also had learning difficulties, and his unwise decisions affected someone else. For example, in addition to having a learning disability, he has had problems with alcohol. The effect that the alcohol had on him affected his then partner. Social services managed to engineer their separation, although they are still close and there is a needy relationship.

I was interested in what my hon. Friend the Member for Crosby said, and the reason why I cited the two examples is that every case is different. It is difficult to prejudge what is right in every circumstance with every person. I am talking particularly about people with learning difficulties, but the same principles could apply anywhere. I am not ruling out the possibility that any of the principles could be improved by one or more of the amendments that have been tabled, but I am most reassured by principles five and six because they seem to provide a safety net, which is, in other words, that action must be in the person's ''best interests''. There are often arguments between professionals and families about what is in someone's best interests, as my hon. Friend pointed out, but the phrase in the Bill provides a safety net.

The other important matter is that the provision is not restrictive of the

''person's rights and freedom of action'',

assuming that the person has the capacity to make such a decision. The idea of setting down principles is good. It helps with the further principle that each case must be judged on its own merits. It is difficult and probably unwise to try to generalise too much.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

Before the Minister responds, I would like him to explain the relationship between the Bill as a whole and the principles in clause 1. We all want there to be principles and we are pleased that they are stated, but it might be useful if he were to tease out where the decision making of persons up to and including the Court of Protection sits in relation to the principles and whether non-compliance or alleged non-compliance with the principles would be one of the tests that they could apply in taking their work forward.

The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. David Lammy): I welcome you to the Chair, Mr. Hurst. This is important legislation and I am sure that our deliberations on it will be assisted by your legal background. However, as you know, the Bill also includes important issues involving ethics that are relevant to us all.

As I said on Second Reading, it is important to emphasise that the Bill affects the lives of over 2 million people. Potentially, it affects all of us in this country, because many of us find ourselves acting as carers at some point, because in an ageing society such as ours issues around dementia and Alzheimer's take appropriate prominence and because of, in particular, the use of the car and the nature of some accidents that occur in all our communities, which result in many people suffering from brain injury to differing degrees.

I spent part of last Friday afternoon with the Royal London hospital's senior consultants and nurses. There was a range of patients suffering from different forms of brain injury—stroke in some elderly patients as well as young people who had been in car accidents. I applaud the work done in that hospital, which is particularly important in the context of London because the air ambulance that serves it picks up people and takes them to its neurological and intensive care units from right across the city.

I also want to emphasise from the outset the fact that this Bill is about the whole of life. We will have the appropriate discussion about advance decisions and the end of life, and it is right that we do that. In doing so, however, it is also right that we acknowledge and remember that if someone lives for 70 years and acquires dementia or Alzheimer's, in the previous 10 or 15 years of their life they may well have had moments when they came in and out of capacity. I think that is what the hon. Members for Daventry (Mr. Boswell) and for Sutton and Cheam were referring to in their opening remarks.

This is an important Bill. As the hon. Member for Daventry also pointed out, it deals with a range of vulnerable people. That is a very broad range, including people with Alzheimer's and dementia, people with brain injury and those with schizophrenia or severe depression or bipolar disease. The Bill sets new standards for those who care for such people and have to do things in their best interests and act in connection with their care. Furthermore, it accords them rights and responsibilities for which they themselves have called for many years and empowers the vulnerable—fundamentally and up-front—in the principles section by saying in subsection (2) that a person must be assumed to have capacity unless they do not.

It is important that we put this in historical context; people have campaigned for such a Bill for a long time. We have come a long way since the 1940s, when a mother who tried to form a playgroup for handicapped children had her advert refused by the local paper because of the shame and disgrace, and a long way since the Mental Deficiency Act 1913—

passed less than 100 years ago—which put people in these categories: idiots, imbeciles, feeble-minded persons and moral imbeciles.

We have come an incredibly long way, which is why the Bill is so important and why it has been helpful that the Joint Committee of both Houses was able to do detailed work—many witnesses gave evidence—and assist us in creating the Bill and allowing the Government to accept and adopt the vast majority of that Committee's recommendations. We come to this Committee after much work indeed—not just the work of the Joint Committee, but that of the Law Commission and a previous Administration, which brings us to this important point.

We will also deal with issues involving research, which is an important part of the Bill, and the establishment of a new Court of Protection in relation to serious disputes. We are trying to make the situation better. I welcome the spirit in which all hon. Members have spoken; they have all had something to contribute to making this legislation as good as possible. However, we also have to acknowledge that in this difficult area—where difficult judgments are being made by doctors, nurses, parents, and husbands and wives—there will still be court cases and practices with which we Members of Parliament are uncomfortable, on which we want to make representations and on which we would want to advise our constituents to seek legal advice. That will still happen, but I have no doubt that after the Bill has been considered here and in another place, there will be a much better situation for people who lack capacity at any point.

There are 11 amendments in this group, Mr. Hurst, so I must drill through them in order, which may take some time. In amendments Nos. 2 and 86, the hon. Members for Daventry and for Sutton and Cheam propose that clause 1(2) be amended to emphasise the Bill's time and decision-specific approach to capacity. This functional approach to capacity is central to the Bill and underpins its ethos of empowerment, personal autonomy and minimum intervention. My hon. Friend the Member for Knowsley, North and Sefton, East (Mr. Howarth) made it clear that capacity can come and go with different issues and we must, at the heart of the Bill, have a functional approach to particular cases that guides us in making an assessment of whether a person has capacity or not. There should be no blanket labelling of incapacity: a person must be assumed to have capacity unless it is established that he lacks it, and capacity must be assessed in relation to each decision to be taken. In that sense, I agree with the hon. Member for Daventry.

Let us examine the first principles. Clause 1 (2) provides:

''A person must be assumed to have capacity unless it is established that he lacks capacity.''

Clause 1(3) further stresses:

''A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.''

Those two principles together emphasise the Bill's decision-specific approach to capacity and the importance of the presumption of capacity as the starting point.

Ms Claire Curtis-Thomas (Crosby, Labour)

Before my hon. Friend develops his argument further, will he tell me how he proposes to make certain that people who present in a permanently vegetative state, or who are described as being in that state, lack capacity? How will he ensure that sufficient tests have been done to confirm that such a person has no capacity? I am not at all convinced that those tests exist. I think that in some cases the matter is dealt with entirely on a subjective basis. Have we really done enough to confirm whether such people have capacity or not?

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

I say to my hon. Friend that the situation relating to people in a permanent vegetative state has been the subject of much debate in the medical and legal professions for some time. Fifteen years or so ago, when that diagnosis was first being made, there may well have been real issues relating to that assessment. I have spoken to consultants and nurses who deal with those situations day to day and I must say that such judgments are being made now.

I also refer my hon. Friend to the British Medical Association's guidelines on treatment decisions for patients with persistent vegetative state, which make it clear that the diagnosis of persistent vegetative state takes time. They talk about a time frame of no less than one year. I have spoken to consultants who deal with these difficult situations and I know that they take a great deal of time.

Dr. Liu at the Royal London hospital told me on Friday that he would make no decisions, and would not feel comfortable making a decision, unless it was done in consultation with his entire care team, the parents and the family involved. It was interesting to be reminded about what is involved in such a care team. A whole team of nurses and dieticians, the medical surgical team, and friends and family who have sat by a bedside during the past year are all involved in such an assessment. They come to a judgment long after a year has passed.

We have the guidelines—the practice. In terms of this particular condition, we should generally applaud the guidelines that are put into practice day to day by the nurses and doctors who have to deal with people in those situations.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

The scenario that the Minister painted has caused quite a lot of discussion, both on Second Reading and in Committee. In some ways, two distinct areas are involved. Cases could involve someone who is in a vegetative state as a result of a head injury or an accident and is in a younger age group. I hear what he says, but does he genuinely have confidence that if the person were much older, the same procedure would apply? The thing that came up on Second Reading was the fact that there is grave concern throughout the country that for an older person—I will not put an age to that term, but we all know what we mean—a different set of procedures apply. That is what most worries people.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

That came across to me in vivid detail when I was a Minister at the Department of Health. I was reminded of it when I first qualified as a lawyer and was lucky enough to practise in medical ethics and medical negligence. One thing will hit anyone who spends any time walking through the wards of our hospitals—that the vast majority of patients are elderly. The air ambulance picks people up all over London and, unfortunately, will pick people up today. The assumption is that young people who have had motor bike and car accidents will be in a neurological ward. However, I went into the neurological ward in the Royal London hospital and the vast majority of people there were elderly and had had strokes.

I saw the doctors and nurses caring for those people. I met a patient who had had an accident six months ago. On seeing the scans and listening to the consultant explaining the context, I could understand why the doctor's judgment had been that the individual had a very poor prognosis and that he might well be a PVS-type case. Six weeks later that young man, Jim, was chewing and sitting up in bed. That is why the issue about time raised by my hon. Friend the Member for Crosby is so important. The doctor said that he had not thought that that would happen, but that it had. He then explained the time issues to me. In the same way, there are serious issues around strokes and clots on the brain—how big they are, where they are positioned—for the many elderly patients there, as people are assisted to some degree of recovery, along with medication.

However, ultimately, as my hon. Friend the Member for Knowsley, North and Sefton, East said, judgments have to be made case by case. Doctors and nurses have to make those judgments. We ought to remember that in this Bill such judgments are subject to a duty of care and to charges of gross negligence and manslaughter, and that this Bill rules out euthanasia, as does English common law. All doctors and nurses make those judgments, notwithstanding the guidance of the British Medical Association and the Royal College of Nursing. I see that my hon. Friend the Member for Crosby, who has nursing experience, is nodding. They all make those judgments every day.

Ann Winterton (Congleton, Conservative)

I welcome the progress made by Jim. The reaction of the doctors and the team looking after him is not unusual. All the consultants to whom I have spoken who look after and treat such people say that they are constantly surprised by the capacity of the human being to recover.

I welcome what the Minister said about taking time to make judgments, but I put in a word of warning. In the past 15 years, there have been well catalogued cases in which people have been diagnosed with PVS and come out of that condition just before further rather drastic action was taken. We can never take such things for granted; it is a very difficult field. I just add that word of warning to what the Minister is saying.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

I accept what the hon. Lady says. Such judgments are very difficult. Anyone who has been to medical school or has some medical training will know

that our neurological consultants, who are making these difficult judgments, are some of our most intellectually able doctors. Also, nurses and others who commit themselves to work on intensive care units are extremely committed to caring in that context. It is right that such people make those judgments, guided by the underlying concept of the best interests of the patient, and that those best interests should relate to a person's values, beliefs and wishes, which should be taken into consideration. Also, it is right that, for the first time in statute, there is a duty to consult those who surround that individual.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

As a member of the all-party brain injury group, and someone actively interested in the subject, I think that the Minister has made an honest and sensitive attempt to describe the situation in all its complexity.

To steer the Minister back towards the general issues, the subject that we are talking about arose from the discussion on whether there was capacity and whether it was definitely established that steps had been taken to decide whether someone could make a decision. Does the Minister agree that, as we discuss the Bill, it will become essential that the adequate regimes for non-experts as well as professionals, whom the Minister has described, should involve establishing capacity relevant to the particular decision? Does he agree that non-experts and professionals should be trained in the communications skills that are necessary for deciding which decisions can be taken? Otherwise, we will be considering a specific area and not applying ourselves to the general need, which is the need to respond to the need of people without capacity.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

I am grateful to the hon. Gentleman for taking me back to the central premise, which is that non-medics make judgments daily about capacity. We have made an attempt with the draft code of practice, and I am grateful for the support that the hon. Member for Sutton and Cheam gave to it. It is a draft—a work in progress. We need to consult further and continue that work in order to set out clearly our expectations for assessing that capacity.

Paragraph 3.19 of the code says that in making the assessment, or before deciding whether someone lacks capacity, one should choose a location where a person is at ease, choose a time and day when a person is most alert, not rush and be prepared to abandon an attempt and try again. Those are basic details and those things are actually being done today.

Mr Alan Hurst (Braintree, Labour)

Order. I remind hon. Members that we are discussing a particular set of amendments. Although the clause lends itself to a duplicate Second Reading debate, we should beware of doing that and keep to the part of the Bill that we are considering.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

That is going on today, as we speak. That is why the key principles have to be read in the context of clause 2(1), which states that

''a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter''.

That leaves no doubt as to the Bill's principle of a time-specific and decision-specific approach to determining capacity.

I move on to amendment No. 7—

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

Before moving off amendments Nos. 86 and 2, will the Minister say whether he is of the view that those amendments, which are basically about the same issue—one or other of them is inconsistent with the drafting of the Bill—would in some way add confusion to the Bill, and whether the Government are minded to accept them? It would be useful to know where the Government are coming from.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

The Government feel that those amendments would not add greatly to the decision-specific context in which the Bill is empowering the most vulnerable, as stated in clause 1(2) and (3) and the entirety of clause 2. It is for that reason that I am unable to accept those amendments.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

I can understand how the Government have reached that conclusion, but after our deliberations on the clause today, will the Minister reflect further on the fact that there is clearly great concern about specificity and the timely nature of decision making and that people outside the Committee do not consider that the Bill has adequately addressed that concern? It will be useful to know whether the Government consider that such amendments would confuse the matter, simply because they would add further clarity, detail or weight to the provision. If so, that is not a good enough reason for them not to accept the amendments.

Mr. Boswell rose—

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

I give way to the hon. Member for Daventry.

Mr Alan Hurst (Braintree, Labour)

Order. The Minister ought to reply first to the hon. Member for Sutton and Cheam.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

I referred to the code to show that there is clearly best practice, which it is right to enshrine in a Bill that we want take to the country when it can be implemented in a right and appropriate way. The code of practice sets that out in detail. As for the legislation, the specific basis on which an assessment is made about whether someone has the capacity has been well gone over by both the Joint Committee and the Law Commission, which is how we reached the principles and clause 2.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

There was an act of osmosis going on in which I was seeking to add a rider to the comments of the hon. Member for Sutton and Cheam. I think that the Minister is saying that he does not want to amend the Bill, but that he is happy to have clear guidance in the code. I would settle for that, but it should be made clear that we are talking about the specific case and particular circumstances that have already been mentioned extensively. Will he use the

opportunity, if appropriate, to say a little about how the principles under clause 1 kick into the Bill as a whole and into the code, too?

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

If I may, I will return to that point.

Turning to amendment No. 7, the hon. Member for Daventry proposes that we include ''adequate'' as well as ''effective'' in clause 1(6), which requires that the least restricted option be considered. It means that the person making the decision or acting must always think whether it will be possible to decide or act in a way that would interfere less with the

''person's rights and freedom of action.''

When people consider the options, they must select one that will achieve the desired outcome. The chosen option must be effective.

I shall give an example to illustrate my argument. A care assistant might be worried about residents with dementia wandering into the kitchen of the establishment unsupervised in case they come into contact with cleaning fluids or bleach. However, to steer them away from the kitchen would be unnecessary if staff ensured that all dangerous liquids were locked in a cupboard. That would not interfere with the freedom of action of the person suffering from dementia. Thus, any measure taken to avoid interfering with a person's freedom of action or independence in a less restrictive way must be adequate to be effective. Again, the code of practice will assist in establishing the idea of the less restrictive manner.

The use of the words ''or adequately'' would set a lower threshold and suggest that the desired outcome to be achieved would have only to be adequate, but not necessarily effective, and that it would be based on practicability or by achieving a compromise.

Clause 1(6) requires that the least restrictive option must be arrived at by having regard to what can be effectively achieved. We are concerned that the amendment may detract from this subsection.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

As I expected, I am broadly sympathetic to the Minister's response. Just for his consideration—I do not ask him to make a decision now—it occurs to me that the omission of the word ''as'' would meet the purpose, because it would still keep the efficiency test, but would not imply a slightly unrealistic equivalence. We want something that works and we want to limit any restrictions on people's freedom of action. Perhaps he will consider whether to include it.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

I can study the matter further, but as I have indicated, I think that the concept of least restriction, which received much consideration in the Joint Committee, achieves what the hon. Gentleman suggests.

In amendment No. 90, the hon. Member for Sutton and Cheam proposes that an anti-discrimination statement be included in the key principles of the Bill. I appreciate and share his concern that everyone should be treated with equal respect and have equal access to health care and other services. This is in

keeping with the spirit of the Bill, which sets out to change public attitudes and behaviour in relation to people who lack capacity. The principles—in particular the principle of best interests—are key to this. The proposed amendment is, however, unnecessary, as the Bill, along with the Disability Discrimination Act 1995, already contains adequate provision to prevent discrimination against people with disabilities.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

The Minister may be about to deal with this subject, and I hope that he will forgive me for intervening if that is so. He talked about the 1995 Act providing sufficient cover in respect of disabled people—a point that the hon. Member for Daventry raised when I spoke about this matter on Second Reading. However, the Government's intention, as I understand it, is that discrimination on grounds of age will apply only to employment and does not extend to goods and services. What cover and protection will older people enjoy under this legislation? Surely they will be treated less favourably if the Minister is relying on the DDA as the basis for giving protection to disabled people, as there is no similar measure for those who are discriminated against on the basis of age.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

The concept of best interests, which underlies the Bill—we have had much discussion about it already—cuts to the heart of that discussion and has a direct bearing on the effect of that discrimination.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

May I ask the Minister bluntly whether all persons who are deemed or found to lack mental capacity in relation to a particular decision are, by the same token, to be treated as disabled, because they clearly have some lack of functionality? If that is the case, will such people automatically be swept in under the DDA? I am attempting to assist him, and he may want to see what statement he can give us. I am not sure that that would be entirely plausible.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

''Disability'' in this context must be read with regard to the central concept at the heart of the Bill, which is not disability per se, but capacity. The hon. Gentleman will see in clause 2 and throughout the Bill how we choose to define capacity; it is defined not so as to start down a road to creating a Bill that deals only with a certain group of people who lack capacity, but to deal with all contexts that can emerge.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

It is helpful for this matter to be fully aired at this stage. Amendment No. 90 is carefully drafted to avoid the trap that the Minister is describing. It does not talk specifically about groups of people, such as disabled or older people. It talks about ensuring that a person who lacks capacity is not treated any less favourably than a person who has capacity. Why is it not possible for the Government to include in the Bill a principle on which the Minister agrees with me, given that they have accepted the idea that the Bill should contain a set of principles at its beginning?

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

We consider that the Bill itself offers considerable protection against discrimination. It requires all acts done and decisions made on behalf of a person lacking capacity to be done or made in that person's best interests. It would clearly not be in a person's best interests to be unfairly discriminated against.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

May I row in behind this? I tabled amendment No. 135 on clause 4, which would add the following:

''He must exercise non-discrimination in respect of disability or age.''

I seek to include that provision because people who have full capacity find themselves in vulnerable situations in terms of health care and other types of support at home. They are discriminated against on grounds of age and disability, and particularly in terms of age; people who have problems to do with age, and have full capacity to articulate their concerns, have difficulties.

Mr Alan Hurst (Braintree, Labour)

Order. That may not relate to what we are discussing.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

The DDA provides further reassurance in this area. Part 3 of the Bill deals with discrimination in the provision of goods, facilities and services. It is unlawful for a service provider unjustifiably to refuse to provide a service to a disabled person on the same terms as they provide it to other people, and service providers are now required to make reasonable adjustments to enable disabled people to make use of their services. These provisions mean that hospitals, care homes and the social services must offer people who lack capacity the same standard of service, on the same terms, as they do to all members of the public.

The DDA does not, however, cover discrimination in private situations. That is the case because discrimination is a matter of civil law and is very difficult to enforce in the private sphere. Private individuals discriminate in their personal relationships, and that is not unlawful. As the Bill covers both public and private situations, an all-encompassing anti-discrimination clause would be unenforceable.

Let me add that the place for anti-discrimination provisions is in specific anti-discrimination legislation where there is a proper framework supporting the measures and a proper enforcement mechanism. Therefore, although I share the concern of the hon. Member for Sutton and Cheam to prevent discrimination, we do not think that it is necessary to amend clause 1 as proposed.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

I rise to assist the Minister. I have re-read clause 2; it refers specifically to ''impairment'' and, after that, to ''disturbance''. From my recollection of the DDA, that must have some material effect on the ability of people to carry out their normal functions. The fact that the word ''impairment'' is flagged up could well read across to disability discrimination, particularly if the person is lacking mental capacity.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

That must be right. Best interests and the idea of capacity are central to this discussion, and it is important that this Bill, as well as other legislation, is read in the context of disability rights legislation.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

The Minister is saying two things. On the one hand, he is saying that we can rely on the best interests test extending to incorporate the idea that it would never be in someone's best interests to be discriminated against; therefore, he is saying that this is implicit. On the other hand, he is saying that, if a person happens to be disabled under the terms of the DDA, they can rely also on the goods and services provisions of that Act. There is no similar set of provisions in respect of age discrimination. I am concerned about a person who is being discriminated against because he lacks capacity and about whom, on the basis of age, proxy decisions are being made because of assumptions about his age and what that means. Such a person can rely only on the best interest test, whereas a disabled person can rely both on the best interest test and on the DDA. That is my worry, and it is why the amendment was tabled. Does the Minister accept that that state of play will arise if no further amendment is made to the Bill?

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

I have said that the Bill is not the place for what has been an issue of continuing discussion inside and outside this place for some time. I understand that the form of discrimination to which the hon. Gentleman refers preoccupies him, and it is important that it is encompassed in the best interests concept that is central to the Bill. As the hon. Member for Daventry said, that cuts to the heart of the disability that people worry about, as is set out in clause 2(2).

I am grateful for the explanation that the hon. Member for Daventry gave for amendment No. 6, although I am not sure that it is necessary. In a sense, the Bill has the same effect. For the first time, in health and welfare matters, it will enable people to appoint an attorney or the court to appoint a deputy to make decisions on their behalf if the person in question does not have the capacity to make those decisions for themselves. Thus, the decision is already equally valid. We know from stakeholders that they are pleased that we have given them the power, because most often the attorney will be the wife of long standing or husband of a partner who lacks capacity.

The amendment could be interpreted as giving someone making a decision on behalf of the person who lacks capacity the same freedom as that person would have to make unwise decisions. That would reduce protection available to the person who lacks capacity. In effect, it would remove the best interests protection from the act or decisions, and it could make them unchallengeable except when they breach existing civil or criminal law. I have said much about the nature of best interests. I do not want to go over it again, but I hope that the hon. Member for Daventry will feel able not to press his amendment.

The hon. Member for Daventry also tabled amendment No. 4, which deals with a person's lapsed capacity to make unwise decisions. The Bill provides

that a person is not to be treated as unable to make a decision merely because he makes an unwise decision. That is in line with the Bill's ethos of empowerment, personal autonomy and minimum intervention. My hon. Friend the Member for Knowsley, North and Sefton, East referred to one of his constituents who finds himself very much in that situation. The hon. Member for Daventry proposes that the provision be amended to read:

''A person is not to be treated as unable to make a decision merely because he makes an unwise decision or has made unwise decisions in similar past situations.''

The amendment is at odds with the Bill's time and decision-specific approach to capacity, which I spent some time discussing at the start of my contribution. A person's capacity to make a certain decision will be assessed according to the circumstances and factors relevant at the time, and not on the basis of his previous decisions. My hon. Friend the Member for Knowsley, North and Sefton, East gave the Committee an example and, without going into too much detail—the particular constituent sometimes had a problem with alcohol—it showed that it is right that a decision is made at the time. For that reason, I hope that the hon. Member for Daventry will not seek to press the amendment.

The hon. Gentleman seeks in amendment No. 1 to amend one of the most important principles of the Bill: the assumption that a person has capacity unless it is established that they lack capacity. He proposes that clause 1 be amended to the effect that a person must be assumed to have capacity unless ''and until'' it is established that they lack capacity. We had some discussion about that legal concept. The amendment would destroy the Bill's fundamental, decision-specific approach to capacity, because it appears to introduce a concept of time beyond which a person lacks capacity. As soon as a lack of capacity was established, incapacity would also be assumed and all decisions would be made on the person's behalf. We have had much discussion about that. We must allow those decisions to be taken at the time.

Amendment No. 5 would provide that any act done or decision made on behalf of a person who lacks capacity must be done or made in the person's best interests

''or in accordance with his advance decision''.

The amendment's underlying aim is to ensure that individuals who lack capacity are at the heart of any decisions made or actions taken on their behalf, and to acknowledge specifically advance decisions in the principles of the Bill.

Clauses 24 to 26 would provide for advance decisions to refuse treatment, although specific mention of the issue is not made in the principles of the Bill. Advance decisions are set out in clause 24, and they concern the advance refusal of treatment. They do not cover positive acts done to a person or decisions made on behalf of someone else. Instead, they provide a way for people to maintain personal autonomy over the treatment that they do not wish to receive and to make their own choices if they know that they are

likely to lack capacity in the future. It is important to remember that such a decision would be made when the person had capacity.

If we found ourselves in hospital, all of us in the Room could make a decision about whether we wanted to consent to certain sorts of treatment. We would not have to make that decision in our best interests. As autonomous human beings, we are allowed to make irrational decisions, and the decision to make an advance decision is made when someone has capacity, and the same rules apply. It is important that we do not confuse those two ideas. Of course, in interpreting that advance decision, the doctor or people around would have to make a judgment in the best interests of the patient, but that decision would have been made by the patient when they had capacity.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

Characteristically, the Minister is explaining the issue helpfully. If I hear him right, he has just explained what I thought was the case and may have to be the case; when capacity is lacking, the best interests principle kicks in as the superior principle. Obviously, if a doctor or any other person felt that something was contrary to the best interests of the patient, they would make a decision on that basis, notwithstanding whatever had been said in the advance decision. Of course they would pay regard to that, particularly if the decision was finely balanced, but they would not allow it to prevail if they judged otherwise.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

We will get on to a detailed discussion about advance decisions later. We have put many safeguards in place to ensure that the decision is made. The simple point is that advance decisions work differently from the principle of best interests. The best interests principle, set out in clause 4, which underpins the Bill and expands on the principle set out in Clause 1(5), does not govern advance decisions. However, in any context, the doctor will, in considering his duty of care, draw on his idea of best interests. It is for those reasons that the amendment is not necessary.

On amendment No. 91, as the Committee knows, the idea of best interests is the key to the Bill. It is the fundamental principle that governs everything that is done for a person who lacks capacity. The hon. Member for Sutton and Cheam proposes that clause 1 be amended to include a consideration of benefit. It is important to stress that when the Joint Committee considered benefit, it said:

''In the context of the comprehensive decision-making framework created under the draft Bill, we concluded that the concept of benefit may be too prescriptive if added to the checklist.''

After much consideration, it ruled out the concept of benefit.

There are a number of reasons for that. First, professionals and courts within our common-law jurisdiction are used to dealing with the concept of best interests. In a sense, introducing the concept of benefit may be seen as suggesting that there is meant to be a change in the basic test, and that is not our intention. Also, an assessment of best interests already involves a consideration of benefit. Establishing a person's best

interests requires consideration of whether a certain course of action, such as a move to a care home, would be to the benefit or detriment of the person who lacked capacity. However, that is different from providing that a decision made or act done must be in a person's best interests and for his benefit.

We are concerned that, although the concept of benefit would place the focus firmly on the person concerned, it might not allow for a consideration of other relevant factors, such as those affecting carers. Let me give an example. Someone caring for their mother or young child might want to arrange for them to go into a care home for a few weeks in order to give the carer a rest, and they might want the care home to provide the respite care that all of us have heard carers in our community talking about. There is a hospice not far from my constituency where people experience that. That situation would be to the benefit of the carer and the mother or partner. It might not be to the direct benefit of the person who lacks capacity, but it would certainly be in their best interests, as it would be better for the carer to have had that respite care. That encapsulates why ''best interests'' is an all-embracing concept. ''Benefit'' is narrower and more prescriptive. That is why the Joint Committee ruled out that test.

Amendment No. 3, which was tabled by the hon. Member for Daventry, would include in the Bill, as part of the key principles, this statement:

''Even where a person may lack capacity, he is entitled to respect for any feelings he may have''.

The hon. Gentleman will see that clause 4(5) states that

''the person's past and present wishes and feelings . . . beliefs and values''

are accorded that subjective consideration. I agree with the sentiment of the amendment, but its aims are encompassed under subsection (5) of clause 4, which deals with best interests.

I conclude with amendment No. 8. The Bill sets out that before acting or taking a decision on behalf of someone who may lack capacity, a person must think about whether their purpose can be achieved in a less restrictive way.

Mr Alan Hurst (Braintree, Labour)

Order. Before I adjourn the Committee in accordance with the Standing Order, I draw hon. Members' attention to a printing error in the programme motion. Hon. Members will be relieved to know that morning sittings are to start not at 8.55 am, but at 9.30 am.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.