Clause 4 - Best interests
Mental Capacity Bill
4:00 pm
Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)
I wish to preface my remarks by saying that a slight difficulty has arisen—I blame no one in the Room; such glitches happen from time to time—whereby I find myself bereft of the advice and counsel of my hon. Friend the Member for Beaconsfield (Mr. Grieve), who would be leading with me for the Opposition, but who has, unfortunately, found himself off the Committee. I am sure that, if time permitted, we could have a Bateman cartoon about the hon. Member who was left off the Standing Committee, especially when he wanted to serve on it. He is as concerned about the matter as I am, but at present I am especially worried about it not least because I have a brief duty to carry out elsewhere and will need to discharge that duty at some stage. Although I do not feel fully equipped with regard to certain matters, and bearing in mind your own profession, Mr. Hurst, I do not believe that one will ever find oneself in the position of a learned counsel who was given an instruction by a solicitor that just said that counsel should do the best that he can.
Briefly, this clause will exercise many minds, as there are some very real issues in it. My amendment is very minimalist, as it would simply delete line 36, creating a situation in which an individual determining best interests would have to consider all circumstances. That would remove the subjective filter—those circumstances that appear to him to be relevant. There is a point to that. Those who have put the amendments together in one group have a genuine concern that people do not edit out history as it suits them.
Remembering the earlier exchanges we had in which the hon. Member for Sutton and Cheam participated, we also do not want resources or other considerations, even if not stated, somehow to get in the way, nor an assessment or care package that does not take into account all circumstances. We do not want a partial situation. If we are talking about best interests, we want a proper assessment of what people's best interests are. We do not want people writing history and justifying it after the event by saying, ''Well, I just didn't think that was relevant, your honour. I left that out. It didn't enter my mind; it should've done.''
I shall make two points. I hope that they will be helpful to the Minister, as they are intended to be. First, the list that he gives, subject to the point about advocacy, which other members of the Committee will seek to develop, is pretty comprehensive. Our fertile minds could not make a huge addition of other persons or circumstances to that list. I have some sympathy with the specific issue about life and health, which has been drafted and signed up to by a large number of members of the Committee. It was right to discuss it in Committee and we will discuss it at a later stage, too. It is a real issue.
I draw a slightly gauche analogy with the discussion about fox hunting and whether something is related to the welfare of the fox. Some do not feel that the fox's being put to death serves its welfare. I do not wish to extend that issue, but there are real concerns—the Minister knows them and can speak to them at length—about whether this Bill would facilitate either euthanasia or some other course of action that we felt was distressing or improper. I do not believe that it does so, but he must consider the issue. The checklist that he has provided is pretty comprehensive, subject to a reservation that others will express about advocacy.
My second point, which is also designed to be helpful to the Minister, is that I am happy with the best interest test. It may need some interpretation, which he must provide when responding to this group of amendments, and I also see some difficulty in introducing benefit. Putting myself hypothetically in the position of a judge, instead of having to administer one test, I must administer two, including one that has not come down the common-law route, and I must consider in what circumstances something can be beneficial but not in somebody's best interests or the converse. That would introduce an unnecessary complication. We must include best interests, but behind these specific amendments—and, indeed, my rather more radical amendment to introduce a subjective test—is the need to make sure that people cannot load the course according to their circumstances, either because they have a particular agenda and are putting it and themselves forward on behalf of the person, instead of taking a proper decision as that person's proxy, or because there is some hidden agenda in relation to resources, for example.
Those are real concerns, and the Minister knows that; I hope that he will address them. To summarise, we want an objective test of best interests. If one looks at later clauses, one sees that there is some degree of filter, including, ultimately, the Court of Protection. People cannot substitute their own interests for the best interests of the individual. That is the fear that a number of people may have. There are real issues about how those best interests can be represented, in relation both to difficult issues about life and death, health and health care—that is one set of amendments—and to persons who may stand up for the individual when they may not be able to stand up for themselves and need help to ensure that their best interests are represented. I hope that the Minister can help us on that. I think that we need to refer back to the principles in clause 1 from time to time.
Such an approach, based on best interests, but with clean hands and without any fettering of judgment or distortions caused by other people's interests, is the right way to proceed. It is consistent with the principles of clause 1, and it is what we are all trying to achieve. We are not anxious to condone any derogation from that or any slipping from that good principle. I hope that the Minister will be able to reassure us in due course.
As I said, I give my apologies to the Minister for now, but I shall do my level best to return speedily for his response. I shall look forward to reading the record of the bits of the debate—on what everyone would agree is a central issue to the Bill—that I shall not hear.