Clause 4 - Best interests
Mental Capacity Bill
4:15 pm
Ann Winterton (Congleton, Conservative)
I have not yet had the opportunity to welcome you to the Chair, Mr. Hurst. I look forward to serving under your chairmanship. It is a pleasure to follow my hon. Friend the Member for Daventry, who must be one of the most articulate men in the House of Commons. I am afraid that the Committee will find me most inarticulate in comparison, but I shall do my best.
I have tabled amendment No. 138 with the hon. Member for Crosby, and I am a co-signatory to amendment No. 110, which is in the name of the hon. Member for Sutton and Cheam, who sits on the Liberal Democrat Front Bench.
Best interests are at the heart of the Bill, and clause 4 describes them at length, but omits to refer to what must be considered the most important of all—the life and health of the person whose best interests are being considered and decided on by a proxy decision maker. All the considerations listed in clause 4 are subjective and indicate a patient's preferences of one kind of another—their past and present wishes, beliefs and values and so on. Those preferences are sometimes previously expressed, although not necessarily in relation to the circumstances in which a patient finds himself. Any judgments made on such peripheral issues are subjective, although very important. However, a proxy can make only a peripheral judgment, and such judgments do not have to relate to the life and health of the patient, which surely must be central to that person's welfare.
I see nothing in the Bill to prevent the proxy from concluding that the best interests of the patient would be not to receive treatment, perhaps even to die. How many times do we hear the phrase ''because that is what they would have wanted'' used about elderly people or those with severe disabilities?
We often express views about how we would wish to be treated in certain circumstances. However, when those circumstances arrive, we behave like many others: we change our minds. Doctors report that that happens often; when they have people in hospital and explain the alternatives, life suddenly becomes very precious. People change their minds and reverse decisions that they have expressed to close relatives. Nobody wants to be a burden, especially if they are old or severely disabled. That is why I support amendment No. 135, tabled by my hon. Friend the Member for Tiverton and Honiton and the hon. Members for Sutton and Cheam and for Chesterfield (Paul Holmes).
More dangerous still is the decision taken by a proxy not to proceed when treatment is available and would be beneficial. I return to my theme that patients' life and health is central and vital for their best interests. Many will argue that doctors will continue not to be affected in their professional attitudes to the approach in the Bill, which is subjective rather than objective. That argument brings no comfort because we know from experience that medical ethics changed dramatically following the Abortion Act 1967. What was intended at the time was that abortions would be able to take place for specific reasons. What has developed during the intervening years—this is incontrovertible—has been that, essentially, we now have abortion on demand, not just for adult women but also for under-age girls. That was not foreseen when the Act was passed, way back in the late 1960s.
In the same way, medical ethics and attitudes could easily change in future, with a growing number of elderly people living longer, costing the state so much more in provision of care, and with fewer people in the workplace contributing financially through taxation. I shall gloss over the problem of what will happen to pensions; that is a big and thorny issue at the moment. We know that we have a growing elderly population and ever fewer young people entering the work force to support them. That upside down pyramid causes great concern about the future.
The consideration of a patient's health and life is central to the legislation. Such a vital element should be written into the Bill and not just left to a code of practice. If a patient's medical or clinical best interests are not considered objectively, the patient might die unnecessarily or be harmed mentally or physically. Those who suffer dementia are especially vulnerable. A period spent observing patients in a geriatric ward while visiting my late mother in hospital some five years ago opened my eyes to the reality of the situation, rather than the theory about which we hear so much.
The medical profession is still bound by the Hippocratic tradition of at least doing no harm; I believe that the oath is no longer sworn.
Would doctors have the time or the inclination to challenge a proxy's decision to withdraw treatment if they believed that it had been arrived at by an improper determination of the patient's best interests? Does the new offence of ill-treatment or neglect by a proxy adequately cover that possible situation? Once again, theory will not win the day but will be overtaken by practical difficulties. That is why it is essential that the life and the health of the patient be placed in pole position. They should be the prime considerations, before all others, of the proxy genuinely acting in the patient's best interests.