Clause 1 - The Principles
Mental Capacity Bill
9:30 am
Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton and 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?