Mr James Cran (Beverley & Holderness, Conservative)

I remind the Committee that with this we are discussing the following amendments: No. 138, in

clause 4, page 2, line 36, at end insert—

'(1A) Where the determination concerns or affects the person's personal welfare, he must consider the person's life and health as basic to that welfare.'.

No. 110, in

clause 4, page 3, line 5, at end insert—

'(aa) the person's life and health in so far as they could properly be the object of health care.'.

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

I welcome you to the Chair, Mr. Cran. We had an interesting debate on this important Bill on Tuesday. That debate will continue today and, under your chairmanship, so too, I hope, will the constructive manner in which we have all engaged to make the Bill better.

We are considering clause 4. On Tuesday, hon. Members raised concerns that I listened to with great interest, and I hope that my job this morning is to reassure them that the Bill will not expose people to dangers that hon. Members fear. ''Best interests'' is the Bill's fundamental principle, and it governs everything that is done for a person who lacks capacity. I am grateful my hon. Friend the Member for Blackpool, North and Fleetwood (Mrs. Humble) for reminding us that we need to consider the clause against the spirit of the Bill's supportive and protective ethos.

The best interests clause is based on the common law position. I want to reassure my hon. Friend the Member for Crosby (Mrs. Curtis-Thomas) and others that best interests is an objective test, although we had much debate about whether it is. It is not a test of substitutive judgment or in any way a subjective test. Losing objectivity could not be in a person's best interests, and my hon. Friend was right to say that. The person's best interests have to be at the heart of the Bill.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

I want to intervene on an issue that I raised during our debate on clause 4 in our last sitting. That issue was also raised on Second Reading, but we have not yet had a definitive answer on it, so I would be grateful if the Minister provided one. Is it his

understanding that the term ''treatment'' in the Bill refers to, and includes, hydration and nutrition, howsoever delivered?

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

The hon. Lady will know that that matter has been established in common law. If she speaks to doctors and medics, she will learn that there is a fine line between care and treatment. Last night, I spoke to Dr. Andrews, the country's pre-eminent expert on permanent vegetative state, who is based at the institute in Putney. He said, ''Look, please let's not be simplistic about this; when we talk about nasogastric tubes—tubes into the stomach—the tubing itself is clearly treatment, but the food falls into the category of care.'' It is clear that there is a difficult dividing line there, which we can talk about in further detail.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

I am pressing the issue because when a Bill becomes an Act of Parliament, there are inevitably court cases in which people ask what Parliament's intention was when legislating. That is why I am asking the Minister, as the legislator, to put on record his understanding of the meaning of a word in his Bill. What is the meaning of the word ''treatment'', for the purposes of the Bill? I am referring not just to people in a permanent vegetative state, as I think I explained in our last sitting; in some ways, those are more complex cases. I am talking about the many thousands of people who may not be able to access nutrition and hydration by their own means, purely because of frailty and other such circumstances.

When we legislate, it is important that we and the people outside the House are clear about Parliament's intention. Again, I ask the Minister in charge of this Bill whether it is his understanding that, for the purposes of the Bill, the word ''treatment'' means hydration and nourishment, howsoever delivered?

Mr James Cran (Beverley & Holderness, Conservative)

Order. I did not interrupt because an important point was being made, but interventions should be a great deal shorter than that.

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

May I say to the hon. Lady, looking her in the eye and answering her question directly, that she is attempting to push me down a medical road? It is for Parliament not to substitute the judgment of the medics, nurses, carers and parents in our hospitals, but to give them the framework in which to make difficult decisions. That is why the Bill talks about best interests and why we are preoccupied with them at this point in Committee. That is the judgment that we require of our medics. It is not for me to tell our doctors—many of whom have 15, 16 or 17 years of neurological expertise, which I do not have—how they should make those fine judgments on care and treatment.

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

Very simply and, I fear, possibly simplistically, I seek to summarise the Minister's argument. As I understand it, his contention is that treatment, when considered by a professional person—a clinician—is to be interpreted as action being taken, whatever is appropriate, in the person's best interests. Our concern is that they are secured as an objective principle. The clinician's duty is to see how we get there.

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

I am grateful to the hon. Gentleman for supporting me and my attempts to ensure that we have that clear clarification about our purpose on these important subjects.

Ann Winterton (Congleton, Conservative)

I am most grateful to the Minister for being extremely generous in giving way. He is quite right in that we are creating a framework, which can be interpreted in different ways by different people at different times when using their professional judgment. There is, however, one inescapable question on whether there is omission of what he calls treatment and what I call basic care—hydration and nutrition—for a patient who is not dying: is that his objective or not? If not, we should make that clear here and now.

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

In the circumstances that the hon. Lady outlines, that is not a matter that should concern the Committee, but one that is dealt with under criminal law; it is called manslaughter. It is also dealt with under our common law; it is called gross negligence. It is dealt with under the oath that our doctors take—it is called the Hippocratic oath—and the duty of care that they have. I will explain that in a little more detail.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

May I prevail on the Minister once more?

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

I will not give way again. I have not even got into my stride and I have given way four times, so now I am going to make some progress.

Best interest does not equal what the person would have wanted or what I would want if I were that person. That means that things can be done in the best interests of an incapacitated person that he might not have wanted. I will give hon. Members an example. Even if someone had a lifelong aversion to needles, a decision could still be taken to give them the necessary injection when they were unconscious after a car crash.

I assure my hon. Friend the Member for Crosby that she need not worry that a proxy could say that someone should not be treated simply because they had expressed a wish to die, even if the person—say, the person in the car crash whom I mentioned—had such a wish before the crash. The objective conclusion would have to be that it was in their best interest to be treated for their injuries.

Ms Claire Curtis-Thomas (Crosby, Labour)

I am relieved to hear that we want to define best interest objectively, except, of course, in clause 4(5), which we have chosen to talk about subjectively. I would be grateful if the Minister repeated what he said. He said that things would not be done, even in a person's best interest. I think he said that even the wishes of the person would not be taken into account.

As I read the Bill, the person's wishes would be taken into account, and they would be subjective. I am asking not to remove the subjective elements of best interest, but to add a true objectivity to that, which would be a measure of the impact of medication and treatment on the person's life and health. That is what I want. If I got it, I would be a much happier person.

Mr James Cran (Beverley & Holderness, Conservative)

Order. I, too, would be a much happier person if the interventions were shorter.

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

I am trying to deal centrally with the point that my hon. Friend makes. I refer her to the draft code, which says

''it is important to recognise that the person's wishes and feelings will not automatically control the outcome. The 'best interests' principle is a fundamental principle, requiring what is best for the person.''

My hon. Friend also expressed concern that a person had to show only reasonable belief that they had acted in someone's best interest. She referred us to clause 4(8), in which is seen the climax of the best interest clause—reasonable belief, which that person has to have.

I assure my hon. Friend that, in law, reasonable belief is a high test to meet. In the British common law system, it is widely understood as the most objective test. She may remember the Clapham omnibus test of reasonableness: what would a reasonable man think in the circumstances? She may recall the concept of diminished responsibility in criminal cases. If a woman—usually, it will be a woman—finds herself in the dock charged with murder in a domestic violence case, the jury make a reasonable assessment. They have to have a reasonable belief that she acted in self-defence. That is our most objective test, which is why it comes at the end of clause 4. The doctor—the person put in this circumstance—weighs up all that has gone before, having consulted and taken into account a person's past and present wishes and feelings—all the context. He makes an objective assessment of that information.

Ms Claire Curtis-Thomas (Crosby, Labour)

I am grateful to my hon. Friend for giving way. I think that what he describes is a commendable thing to do and I am not arguing with him, but he has repeatedly said that what would be done to that individual would be in their best interest. Presumably, that means in the best interest of their health and life. If we take that as a given, why cannot we put objective measures of health and life in clause 4, along with the subjective elements about the person's wishes and beliefs? Then we would have a complete package with no, or at least reduced, ambiguity in the interpretation of clause 4 when such matters were decided in court.

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

Two things have been conflated. Is the clause about objectivity? I have said to my hon. Friend that it is. The clause is about reasonable belief and weighing up all the information, and some of that information is subjective. I hope that satisfies her.

Ms Claire Curtis-Thomas (Crosby, Labour)

It does not.

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

I am trying to do my best. Speaking as a lawyer, I would say that the definition of ''best interests'' in clause 4(8) is clearly objective, but I will continue to consult widely with stakeholders on the nature of that objectivity, because I want to put it beyond doubt. I am keen to continue that dialogue with doctors and medics. That is as much as I can say.

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

I am grateful to my hon. Friend for outlining the approach that he intends to take. I too have spoken to doctors since we last met, to try and get a clearer picture. The case that has been put to me is that, although in such cases they will look at every

objective measure available to them, at the end of that process they have to form a judgment. I think that my hon. Friend would consider that judgment to be subjective. That is possibly the difficulty in which we find ourselves.

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

I am grateful to my hon. Friend. Sometimes such decisions are difficult. Every day in our hospitals we require decisions to be made by multi-disciplinary teams—not just by the medics, but also by the families involved. They have to weigh up many things in making their determinations, and on the balance of what they have heard, they make an objective assessment. In a sense, that is best practice. We as parliamentarians do the same thing. How many times have we sat in our surgeries and heard about neighbourhood disputes, one week from one party, the next week from the other? At the end of the day we make a reasonable objective assessment about what is going on. The judgments that we are discussing are obviously far more serious, and they are required of professionals every day of the week.

The hon. Member for Congleton (Ann Winterton) expressed concerns about doctors and proxies, and the possibility of abuse. As I have said, if a doctor fails to provide treatment in a person's best interests, or goes along with an attorney's views when it is clear that the attorney is not acting in a person's best interests, that doctor may be liable in negligence. An attorney may be liable in negligence if he refuses, contrary to the person's best interests, to consent to treatment, because the attorney has a fiduciary duty. If a doctor has any doubt about whether the attorney is acting in the person's best interests, he may safely treat the patient, and attempt to resolve the conflict, if necessary, by seeking a ruling from the Court of Protection. We shall discuss that newly empowered court in more detail later.

I have explained why the ''best interests'' assessment is not subjective, and I shall explain why we explicitly mention wishes and feelings in detail. The current common-law test already covers them. In response to the Joint Committee's recommendation, we added explicit mention of someone's beliefs and values. Decision makers should not be allowed to ignore such personal factors. As the hon. Member for Daventry (Mr. Boswell) reminded us on Tuesday, just because someone is incapable of making a decision, it does not mean that they have no feelings. My hon. Friend the Member for Knowsley, North and Sefton, East (Mr. Howarth) was right to say that objective and subjective factors come together in decision making; all relevant factors must be considered for an objective decision to be reached.

Amendment No. 13 would remove the reference to a decision maker considering all circumstances ''appearing to him to be relevant.'' I agree that we want a full range of circumstances to be considered as part of the assessment for best interests, and that we do not want someone to decide arbitrarily or maliciously that something is or is not relevant, but it is important that the circumstances considered are relevant to the decision. I am sure that the hon. Member for Daventry agrees. Otherwise, the decision maker would be expected somehow to be aware of

factors of which he could not reasonably be aware—such as someone's health records for a period when they lived abroad, or their financial situation—when taking a health care decision such as what medical treatment to give that person for a heart problem.

Ms Claire Curtis-Thomas (Crosby, Labour)

I wish that I could respond instantly to some of the Minister's points, but I cannot, as I must reflect on them. I am sure he will forgive me. I must return to the issue of best interests and my desire to see health and life to be included as objective considerations. The Minister said that if an individual made a best wish that they did not want to be treated using needles because they were afraid of them, and they came in to hospital unconscious, the doctor would say, ''Well, despite that, I am still going to give him an injection.'' Presumably, the doctor would have reflected on the impact on the patient's health and well-being of not giving the injection, and would have made an objective judgment to override the patient's decision.

At that point, the advocate, or whoever, could say, ''I'm sorry but he has expressly said that he does not want that,'' and that would produce a conflict. Why do we not introduce measures of objectivity so that we have a level playing field, and a consideration that is disadvantageous to the health and life of an individual can be countered by an objective consideration, which the doctor will undertake. I do not want to put that doctor in the position of having to go to court to prove that what he has done is not an assault on the individual, but is good for their health and has made them comfortable.

Mr James Cran (Beverley & Holderness, Conservative)

Order. That too was repetitious. I know that important points are being made, but for the sake of order, interventions must be proper. All hon. Members will have the opportunity to speak again if they so choose.

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

My hon. Friend the Member for Crosby has gone on to discuss an advance decision, but we are not necessarily dealing with advance decisions when we consider best interests. We will talk about the effect of advance decisions later in the Bill. As I said on Tuesday, we can all make decisions—some irrational—about our health care. We can go into hospital and say, ''Under no circumstances will I have a needle,'' because, as people with capacity we can look ahead and say what we want. We need to ensure that we have the right safeguards and that doctors make the right assessments and weigh factors when considering that. That discussion will come later, but we should not confuse that ability with what we are talking about, which is best interests.

I stress that if a decision maker were wrongly to assess a person's best interests, protection from liability under clause 5 would not apply. We should remember that the clause is about protection, and that provision would not apply if the assessment were wrong. Under existing provisions, if a doctor fails to give life-sustaining treatment, he can be found guilty of gross negligence or manslaughter. I referred earlier to the high standard of reasonable belief that the courts would apply to anyone claiming that they had acted in someone else's best interests.

I turn to amendments Nos. 110 and 138. In the Bill, we have set out an objective best-interests test, and we feel that it would not be helpful to modify that principle for certain cases as proposed in the amendments. It is also possible that the amendments could be interpreted as having the opposite effect to that intended. A provision that allowed the decision maker to consider someone's ''life and health'' could be interpreted as permitting the decision maker to take account of the value of that person's life, perhaps making a negative value judgment about the quality of that life—[Interruption.] I reiterate that a negative assumption could be made about the quality of life. We have worked carefully with the Law Commission and the Joint Committee to get the wording right, so that it does not have unintended outcomes.

We must be careful not to open the door to arguments about the need for other modifications of best interest. What matters is what is right for those who lack capacity. Legislation can never specify solutions for individual cases, and trying to do so can be harmful. The Bill will ensure for the first time that no decision maker can act alone. Under the best-interests provision, there must be consultation. That is what parents, families and others have asked for, and it is now provided in legislation.

All who are consulted will have a role in saying what is in a person's best interests, and what is relevant. For example, when making a health care decision, a doctor will have to consult the family about what they think will be in the person's best interests. If there are no family or friends to consult on serious decisions about medical treatment and changes of residence, a doctor or other decision maker will have to consult an independent consultee. I shall say more about that later.

If an attorney is deciding whether to consent to medical treatment, he will have to act in close consultation with the medical team. If others are concerned that a person's best interests are not being followed, the Bill will give them a clear basis on which to make a challenge. That challenge can ultimately be taken to the Court of Protection. For the first time, no one can make such decisions on their own. They will have to consult. We should be pleased about that.

I am totally in accord with the wish of hon. Members to ensure that the lives of patients who lack capacity are valued as much as those of anyone else. That is why I am introducing legislation. As we continue our discussions, in the House of Commons and in another place, I am sure that we will touch again on these important issues.

Ms Claire Curtis-Thomas (Crosby, Labour)

Obviously, time will elapse before cases referred to the Court of Protection are heard. Will measures be taken in that intervening time to protect the health and life of the individuals concerned, pending the court's judgment?

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

The Bill specifically says that treatment should continue in those circumstances.

I have listened carefully this morning and on Tuesday afternoon to the deeply held views expressed by hon. Members. All of us are in sympathy with the aim to protect vulnerable people, and I have considered the points that have been raised. As I have outlined, the Bill works together with doctors' existing fundamental duty to preserve the life and health of their patients, and I remain of the view that the best interests assessment is an objective one—although I will continue to consult to ensure that it is as clear as it can be that that is the case.

I remind hon. Members that this is not a Bill in isolation. It works alongside our existing criminal law and the existing common law of negligence. However, I am prepared to consider the amendment tabled by the hon. Member for Daventry, as it seems that people reading the best interests clause do not automatically see it in the context of subsection (8). That is why I will continue to ensure that we have made this as objective as possible.

Ann Winterton (Congleton, Conservative)

I welcome you to the Chair, Mr. Cran. I have never served under your chairmanship before, and I hope you will be gentle with us all, although you have been a bit of a Rottweiler to date.

I do not intend to hold up the Committee for more than a few brief minutes; we have had a full debate on these issues, some of which are very contentious. I am sure that the Minister is trying to act in the best interests of the legislation, and I do not doubt his commitment and sincerity, but there are real problems in the Bill and in these amendments to clause 4, which we have not overcome.

The Minister began his winding-up speech by saying that the Bill has a protective and supportive ethos. If that is the case, it should address the issue that is central to the best interests of the patient, which is their life and health. That problem cannot be overcome even by accepting the amendment tabled by my hon. Friend the Member for Daventry, which refers to all the circumstances. That would be a step forward, although only a tiny one.

The Minister said that reasonable belief is the highest and most objective test according to the advice that he has been given. That may well be so, but when I read the subsection of clause 4 that refers to that, I thought it was rather woolly. Not being a lawyer, I am, perhaps, not the best judge of that; I am just an ordinary member of the public who happens to represent other members of the public in Parliament. However, my experience of life has led me to believe that there are great gaps between the theory of what MPs talk about in Parliament and the reality of what happens in our local communities and hospitals.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

My hon. Friend will recall that in the Tuesday afternoon sitting I expanded on what we heard on Second Reading about cases of people not receiving nutrition, food and liquids in hospital. She may be interested to learn that I subsequently received a telephone call from the Royal College of Nursing in which I was told that this is now being addressed nationally as it has been recognised as a national problem.

Ann Winterton (Congleton, Conservative)

I am sure that everyone would recognise the national problem, but, coming from a family of nurses—six in all, and admittedly trained in the old-fashioned way—I find it extraordinary: they thought it was basic care to give food and hydration to patients, including elderly people who cannot feed themselves.

That brings me to my penultimate point. The Minister talked about the doctor's fundamental duty—or I think he spoke of an objective duty. The doctor's fundamental duty is to his patient. Part of that duty is not to judge quality of life. It is to treat the patient in his genuine best interest. That includes life and health and, yes, not striving officiously to keep alive when someone is dying, but we come back to the definition of treatment. I shall repeat as often as I can that food and fluids—nutrition and hydration—howsoever delivered, are not treatment. They are basic care and a human right. Unless we grasp that nettle in this Bill, the outcome will be unsatisfactory.

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

I, too, welcome you to the Chair, Mr. Cran. We may have had both agreements and disagreements in the past, but I am sure that you will treat those with appropriate sympathy and objectivity as we proceed with these difficult matters.

I hope that it is my normal style—I think it is the style of the Committee—to begin by saying that, as has been the case since attending my first Standing Committee in 1966 as a very junior researcher, I have enjoyed the process, although I have never encountered a more serious set of issues or ones on which people have been more genuinely engaged.

It is a great privilege to have the opportunity, on behalf of the many people who lack mental capacity now or may do so in future, to tease this issue out. I am grateful to colleagues who have spoken on the matter with great passion, but also to the Minister for taking on the job of responding. It is not easy, and I hope that hon. Members will not be distressed to learn that I find I am in the middle way position between some concerns that have been expressed and the Minister's views. That is the process of parliamentary debate and there is nothing wrong with it.

I want as briefly as I may to respond to the points that have been made. To begin with the areas of common interest, we all, of course, have an interest in the life, welfare and health of the patient or the person who lacks mental capacity. That is self-evident. The question is how to bring about those things safely. Secondly, as the Minister said, many decisions are taken on such matters every day. Many of us may, either through personal or family experience, or through constituents, have become in some sense involved with such decisions.

Thirdly, things sometimes go wrong. My hon. Friends the Members for Congleton and for Tiverton and Honiton (Mrs. Browning) are right to say that there are nursing deficiencies in some cases that are inexcusable, and that those should be tackled by the professional bodies. That is not an issue between us; the issue is how we offer protection.

My final point, which is one that needs to be made, is that no one wants to contrive a situation in which

doctors, nurses or other caring persons must constantly refer to the court, or, as I think I put it on Second Reading, go up before the beak because they have acted in good faith on the basis of their interpretation of what is right and someone has differed with them about it.

Of course, it is something completely separate—for the avoidance of doubt—if someone neglects their patient or takes a casual or even an agenda-ridden decision about what to do in a particular situation and does not think about it objectively in their own lights. I begin to stray into using that word, ''objective'', and will say more about it in a moment. Also, we do not want the Court of Protection constantly to have to decide every issue. I fear that that may be implicit in the Bill. We need to tease out those elements.

I think that the overall intention, from my reading of clause 4 in conjunction with clause 5, is, loosely, that clause 4 concerns the best interests of the person who lacks mental capacity and clause 5 is, in a sense, protective of persons who have to carry out acts in respect of care or treatment of the person without mental capacity. They are both sides of the same decision-making coin, but, broadly speaking, one refers to the person without mental capacity and the other to the person providing care. We have to find that important balance. We can neither write people off into the care system on the assumption that persons are not going to care for them properly, nor can we persecute the caring or treating system for not doing exactly as we would like. We seek to bring the framework into the right alignment and get the best result we can.

I am not sure whether it helps the Committee to say that I am a little bit sceptical about subjectivity and objectivity. I think I know what I want, but I am not sure that I can produce an absolutely satisfactory position on either case. We do not want persons acting blindly with their own prejudices and, as I have suggested delicately, in certain cases on their own agenda, and taking decisions alone—without reference to other people—for a person without capacity. In such cases, the deed is done, the person is dead, the life has come to an end and nothing can be done about it. That is unacceptable. Indeed, it is the last thing any Committee member wants, and many representations to us have been about that.

In looking for objectivity there is a point at which, logically, it is not always easy to see. The Minister has already suggested, in responding to my amendment that heads this group, that nobody is omniscient and nobody can, for example, take account of something that took place in Australia 20 years ago, which might be relevant to a decision that a person could take. I understand the difficulty with my amendment, but it is no good somebody saying, ''Well, this person does not have long to go and we'll do the necessary now. That's how I feel about it and I take no notice of anybody.'' I am sure that that has happened in the past under the common law, and it will probably happen whatever we do in legislation now, although it is not desirable under any circumstances.

We need, as the Minister mentioned, to produce the highest possible level of objectivity that we can at any

one time, whereby people have to run their decisions or thoughts about a situation—which will typically, although not always, be developed over time—by someone else. That is, perhaps, less easy after trauma than where there is progressive decline. The person will not be able to make the decision on their own.

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

The hon. Gentleman talks about the highest possible standard of objectivity. Does he agree that to make such an objective assessment people must have information? The requirement under the Bill provides, for the first time, for people to consult and take into account past wishes, feelings and beliefs, thereby giving the clinician the information on which to base that objective assessment.

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

I nearly entirely agree with the Minister. If I were picking differences with what he said, I would say that that information might not be comprehensive. However, until the legislation appeared we did not even have a framework for requiring that input. The best information that mankind can find that is relevant to the circumstances—to borrow a phrase from the Bill—is helpful. I think we are beginning to say that nobody should be taking these decisions arbitrarily, but I do not want to go down that road and introduce another concept.

I am sure that my hon. Friends the Members for Tiverton and Honiton and for Congleton, and the hon. Member for Crosby, are right to express concerns about something that is felt throughout the Committee: this Bill is to raise the hurdles to ensure that nothing is done casually or arbitrarily.

I want briefly to go through my understanding almost as a checklist, so that the Minister or other hon. Members may intervene if I have got it wrong. The process of causation is as follows. First, if a person has mental capacity, the Bill does not apply and they make their own decisions: if they do not want medical treatment, they indicate that. Further, they can indicate their wishes by an advance decision, if a circumstance arises where they lack capacity. That falls under another part of the Bill and we will return to it.

Secondly, if a person lacks capacity, which is defined in clause 2 and which we debated, best interest takes over as an overriding principle. The Minister spoke to that. I suppose that it comes out of common law and is probably quite a good test—it is difficult to see how we can have a better one. There is an issue, which my hon. Friends have arguedargued with great passion, about whether it is necessary to have a separate requirement for a person's life and health. I do not believe that anyone in Committee would dissent for a moment and say that life and health are not important; the issue is whether one includes a separate tiret that requires the court ultimately to consider the matter, and all the persons taking decisions up to that stage to have considered it too.

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

The hon. Gentleman is right to talk about court protection, but he knows that there are many preceding mechanisms, including the patient advice and liaison service in our hospitals; the independent complaints and advocacy service for people who want to make a complaint in the case of a dispute between doctor, family and hospital; the health care inspectorate, which deals with complaints; and the court as the final arbiter.

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

That is correct. The debate is about having the right number of safeguards, not to make decision-making impossible—because we all agree implicitly that decisions eventually have to be taken—but to ensure that decisions are not taken without due process and proper consideration of all the relevant information. The Minister is right to remind the Committee that information is central.

As one goes through the process, the principle of best interest takes over. There is a continuing discussion in Committee about whether it is necessary to specify life and health as basic to welfare. My only reservation about the impassioned comments that have been made by hon. Members on both sides of the Committee is that applying more tests might not enhance protection. The issue is what the best level of protection will be.

We also have to consider reasonableness—formally the subject of my amendment—and whether it is important. I repeat that we want to avoid a casual or arbitrary view being taken or, indeed, a view with a particularly loaded agenda. If someone believes that older people should be bumped off when they are no longer of use to society and he or she happens to be in the medical profession—I do not regard that as a typical view by any means—he or she should clearly not be able to prosecute that opinion in his or her medical practice.

We consider reasonableness balanced against the fact that one cannot possibly take all circumstances into account. Otherwise we get into chaos theory and how butterflies waving their wings in Brazil might affect the whole world. One cannot do that, but one has to make a good effort. The inference rightly drawn by my hon. Friends the Members for Tiverton and Honiton and for Congleton and the hon. Member for Crosby is that, sometimes in the past, procedures have not gone as well as they should have and decisions have been taken in a hurry. As my hon. Friend the Member for Congleton rightly reminded the Committee, the decisions are about life and death and are irreversible. That, incidentally, is one of my arguments against the death penalty: one cannot reverse it. I will not, however, stray into that area.

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

I hesitated to intervene in a balanced and thoughtful speech, but does the hon. Gentleman agree that a difficulty in placing life and health in such a central position is that when a physician has to make a judgment, for example, to feed someone via an intrusive process that might be distressing, they might feel obliged to do it even though it might not be in the best interests of the patient?

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

Clearly, everyone is considering the best interests of the patient. The hon. Gentleman is

right to remind the Committee that, without taking a careless approach or pushing a particular agenda, a clinician might well have a genuine concern about the patient's degree of suffering and whether there is any point in the treatment. None of us, wherever we stand on the issue, should expect that person to have to go through the rigour of court process if he or she has acted in good faith and has gone through the necessary procedures. I shall come to that in a moment.

Ann Winterton (Congleton, Conservative)

Before my hon. Friend moves away from that point, may I add a rider? In the case that the hon. Member for Knowsley, North and Sefton, East has quoted, it is the doctor's responsibility to act in the best interests of his patient. If feeding through a tube or by other means is burdensome to the patient, the doctor is right to take a judgment not to do it. That is within his responsibility. Nobody would argue with that, including relatives. If the patient will be distressed or find the treatment burdensome, the doctor should not proceed.

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

That is helpful. However, my hon. Friend's gloss shifts the argument. We can debate what constitutes life and welfare, or whether welfare is distinct from life because it can be distressing to prolong life, but the argument has to be resolved and somebody has to resolve it. In a sense the Minister is right, at least in intention. We are trying to establish a test that is pretty objective. Our aim is to ensure that clinicians make that test on objective grounds, not on the basis of their own predilections or views at the time.

That brings us to what we might term issues of conflict, which we are to debate later under clause 5. However, under the present group of amendments, we have not discussed as explicitly as we might have the situation in which two persons have care of the patient, be they family members, attorneys or clinicians, and they have differing views. They may even have different specific functions to discharge, which could cause them to be antagonistic. Somebody at home might want to do something, but the clinician might argue differently from the hospital. I have not synthesised a particular case, but the Minister can understand what I am driving at. Clearly, there is a duty on both persons.

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

The hon. Gentleman is right to say that one can never account for the differing views that people take in a given situation. However, does he agree that we should take comfort in the fact that, because of the requirement to consult, because of the framework that the legislation creates, and because the draft code gives us the ability to lay out how we should make that assessment, there is likely to be less disagreement now, because people will not be making decisions in isolated silos?

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

I agree, and that is the essential point. If we could add to the Minister's rubric about information the other and equal rubric about consultation, I would be very happy. The consultation is set out clearly in the clause, to which I have no further amendments. It is essential that there be conferences; that is good practice and already happens in many cases. However, I must make the point that, especially if they have to make an objective

test, persons may have genuine differences of opinion about what should be done.

I come to the ultimate arbiter, the Court of Protection. If it is impossible for persons to agree on a course of action, it will have to be decided by the court. The Minister will be aware of a recent case involving a minor that had to be determined by a court, albeit not the Court of Protection. Of course the court will apply objective tests using their legal expertise; they are used to addressing such matters and they will understand the Bill better than any of us might. However, in the end they too have to arrive at their own judgment. They will act objectively, but the judgment will be one of individuals. One cannot escape the fact that if the person lacks mental capacity, someone has to be a decision maker in their case. The Minister nods. In that sense, the argument about subjectivity and objectivity falls. We are trying to get everybody to act, based on all the information that they can get and with all the appropriate consultation within the framework established by the clause, to make the proper decision in the best interests of a person who lacks capacity. That is our shared objective.

The Minister is nearly there, but it is entirely right of us to tease out the issue—that is an important parliamentary function. The Minister has indicated that his door continues to be open to the representations from the various agencies, and I welcome that. I hope—although he has not said it—that that offer embraces members of the Committee, who may want to come and see him severally or collectively. He is nodding; that seems to be self-evident. I think that the whole Committee agrees that we need to get this provision absolutely right.

I have to admit that I did not understand the Minister's position on my amendment. He indicated sympathy with it, but I am not sure whether he accepts it now, or whether he would like me to withdraw it so that he can reflect further.

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

I would like the hon. Gentleman to withdraw it.

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

The Minister would like me to withdraw it. That was the impression that I received. [Interruption.]

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

I am considering it.

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

The hon. Gentleman will consider it. I am grateful.

Mr James Cran (Beverley & Holderness, Conservative)

Order. I do not want sedentary interventions, please.

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

Perhaps it will be helpful if I ask the Minister to intervene to advise me on what he would like me to do with the amendment. I am anxious solely to assist him and the Committee.

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

I would like the hon. Gentleman to withdraw the amendment. I was indicating that I continue to consider the provision.

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

I am grateful to the Minister. That is how I had construed his comments; I think that one of my colleagues understood him to be accepting the amendment. I am not proud; I do not really mind. I

think that we are trying to facilitate the discussion, which is ongoing and has not been closed. The Minister, and every member of the Committee, knows that it is important to get the measure right. In that spirit, I shall seek the leave of the Committee to withdraw my amendment, and we can think about it all again long and hard before coming to a final conclusion.

Ms Claire Curtis-Thomas (Crosby, Labour)

May I take this opportunity to welcome you—perhaps less fulsomely than others—to the Chair this morning, Mr. Cran? Taking your advice, I am now on my feet and looking forward to speaking.

I have heard what the Minister has said in response to the amendments, and my interventions have shown that I am not satisfied with the response. I have tried to consider what he has to say in detail, but that is difficult when my overriding view is that we should put objective measures on health and life into the Bill. That is essential. The arguments about best interest are the most important elements of the Bill as far as I am concerned. All the discussions that follow will reflect the decisions that we make in the case of best interests. All our opportunity for manoeuvre will be severely curtailed unless we get it right.

My primary concern about the position in clause 4 is that it is thought to give priority to those who represent an incapacitated person. It is important that we acknowledge such people and give them an opportunity to contribute, but they must be equal partners, not first among partners. Historically, doctors have been able to decide what is in the best interests of the patient, and in some cases, to which we will refer later, those decisions have been taken to court. However, that has not happened in many cases, showing that, by and large, people defer to a doctor when he makes a judgment about a person who is incapacitated. That has now changed, and rightly so, to bring the person who is incapacitated into play even though they cannot verbally articulate what they need at the time. However, to take a doctor's judgment totally out of that environment is absolutely wrong.

Let me give an example that illustrates my point. So far, we have been concerned about a person's wishes on the assumption that they are wishes that would result in the person's life being terminated, because he or she is a most invidious position—one that they had previously said they would find intolerable and so did not wish to be supported in. But there will also be cases in which an individual who is incapacitated has expressed a wish that, in that situation, they be treated. That person may have a document that says, ''I wish to be treated in these circumstances.'' At that point, a doctor really has no role as far as clause 4 is concerned; he does not have equal input.

I have a good example. When my mother came to the end of her life, she had a blocked bowel. She had previously told me that she would want to be kept alive, because she was a grandmother and mother and enjoyed her life, irrespective of how incapacitated she

was. However, she was now unconscious. I went to the doctor and said, ''I want you to operate on my mother,'' and he said, ''I won't do that, because I don't think it's in the best interests of her well-being, her health and her life.'' I said, ''Okay, fine,'' because at that point I wanted to know what was in her best interests—not what she wanted, because what she wanted then became subservient to what was in the best interests of her health and life. I could not make that judgment; I did not know.

We talk of decisions going to the Court of Protection, but there is no time to do that if someone has a blocked bowel; the decision has to be made right then. There is no opportunity to go to the court—one has to act immediately. The Minister said that all measures will be taken to make sure that a person has enduring health, but in my mother's case, because she would have died of that condition had she not been operated on, the operation would have had to go ahead. Such circumstances do arise. The clause does not relate only to people who want to die because they have an onerous burden; it also relates to people who say that, in certain circumstances, they want whatever assistance is possible—they want what others get.

I am deeply concerned about the omission from the Bill of objective measures of life and health. It is vital that we put them in because, in the round, and in the objectivity that will finally come to bear in some court, health and life are important. They need to be mentioned in the Bill.

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

Does the hon. Lady agree that although the two are not the same, the concepts of life and health ought to be embraced in any sensible approach to best interests? In other words, no doctor or other person could exclude them from the consideration, even if there might genuinely be a difference of view on what they constituted.

Ms Claire Curtis-Thomas (Crosby, Labour)

I could not agree more with the hon. Gentleman. If we are talking about so much transparent, common sense, why do we not include those objective measures of life and health in the clause? We are talking about best interests, to which and life and health seem fundamental, so why is that not stated explicitly? Why does it become an ambiguity? Let us put the terms in the Bill.

I was delighted to hear the Minister say this morning that he would consider the matter further. I hope that he will think about what I have said, and come to a decision that meets hon. Members' concerns.

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

I too welcome you to the Chair, Mr. Cran. You have been indulgent, particularly with our lengthy interventions.

My hon. Friend and the hon. Member for Congleton believe that including the words ''life and health'' in the clause would provide additional protection. I believe that by putting those tests in the clause explicitly, we would be second-guessing all the circumstances in every case to an extent that would impose limits on what was in the best interests of the patient.

In Tuesday's debate, I was very taken with the distinction that the hon. Member for Tiverton and Honiton drew between a process of hydration, which might require some medical procedures, and the kind act of wetting somebody's lips when that is clearly helpful. In the end, there needs to be some sense of what my hon. Friend the Minister referred to as a process in which people are expected to behave in a reasonable manner towards others, and at the same time a sense of the compulsion that certain things will happen at certain times. The hon. Lady drew a distinction between certain procedures, and acts of kindness.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

I did so in the context of someone who is dying—where the body is shutting down and the swallowing mechanism has gone. That often happens within 24 or 48 hours of death.

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

The hon. Lady is right to draw my attention to the context. However, I still think that we are talking about an act of common decency that people would expect not only from a close relative, but from a nurse or anybody else who happened to be in attendance at the time. If somebody who was professionally charged with the care of such people were not to do that, that ought to be an act of negligence; my hon. Friend the Minister referred to that as a potential legal matter.

It is right that we raise and debate such cases, particularly in the context of clause 4, because it is illuminating and enormously helpful when we start to bring such examples into play. My fear is that if we are too explicit, that closes off all sorts of courses of action because people then say, ''Well, hang on, if I do this, which may be considered in other contexts as an act of kindness, where do I stand in specific relation to the legal requirement in the Act?''

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

I am in sympathy with much of what the hon. Gentleman says. Does he agree that the one thing that we all want to avoid is any kind of box-ticking approach, whereby people simply say, ''We've done this, we've done that, so we've met life and we've met health,'' as if that discharged the whole obligation to the best interests of the person concerned?

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

I am grateful to the hon. Gentleman for that helpful description, and I agree with him. If people such as doctors—and sometimes nurses—who have to take those decisions professionally feel that there is a kind of tick-box process to go through before they can prove that they have been objective, that limits their scope to be kind and to do the right thing in the right circumstances, as the hon. Member for Tiverton and Honiton movingly described, and in the context that she was anxious to draw me back to.

Something else slightly disturbs me; these are intense human dilemmas. I will give an example of a case I know about very well, not because it will help us but because it shows what a muddy area this is. Some years ago a woman was in the fourth month of her pregnancy, and there were astonishing complications, which meant that she was not competent to make a decision. As happens all the time, a choice arose and it was left to the father to decide: should the pregnancy

be terminated, in which case the mother would be healthy, or should nature be allowed to take its course, in which case both mother and child would probably die?

I do not use that example because it illustrates any particular point that we are trying to make now, but it does tell us about the complex choices that people often have to make. Hon. Members might rightly say, ''Well, obviously in those circumstances there was only one choice.'' Maybe that was the case, but that decision will haunt those people for the rest of their lives. This is an incredibly complex area. I know that that decision was made, and I sure that all the right considerations had been made and it was a proper decision—but what would have happened if the law had tried to specify what objective measures were supposed to have been brought into play when the decision was made? It might just have made that difficult situation even harder for those involved.

Ann Winterton (Congleton, Conservative)

May I reassure the hon. Gentleman that in the circumstances that he described there is always a presumption in nursing and medical circles that the life of the mother is paramount?

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

I do understand that, and I am grateful to the hon. Lady for reminding me. I was not trying to say that there was a presumption either way. I merely say that for those involved, it is an incredibly tricky set of circumstances to negotiate.

Ms Claire Curtis-Thomas (Crosby, Labour)

In my contributions today and in my arguments to support the amendments to clause 4 that I have proposed, I have not sought to tick a box. I have not sought to specify a piece of paper saying ''best wishes'', with a box next to that that needs to be ticked once those have been taken into account, and to add ''life and health'' to that. I do not think that an assessment of life and health can be merely allocated to a small tick in a box. I do not think that one can do that.

However, a court needs to give equal credence to the impact of any measures that are to be taken in relation to the person's incapacity, which includes comments about their impact on the person's life and health. It is important to the overall assessment that those measures are given equal validity and status. That is all. This is not about a ticked box; it is not a simple thing.

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

Obviously, my hon. Friend and I are on different sides of this argument. I regret that, because in many other contexts she and I are good friends; we often share the same point of view and concerns. I recognise the absolute sincerity with which she approaches this subject and the fact that she brings a lot of personal experience to the argument. Clearly, that informs the way in which she approaches it.

I would not for one minute suggest that my hon. Friend is talking about a tick-box procedure. That is not what I meant, or what the hon. Member for Daventry was talking about. I think that he was saying that potentially, that is the end of this process, and I agree with him.

Mr. Boswell indicated assent.

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

I know that that is not what my hon. Friend is arguing for. However, if the Bill specifies certain things, those who have to respond to those legal requirements will then go through a process of saying, ''Right, what are the objective measures that I am supposed to have taken. Are they this? Yes. If it's this, I've done it. Are they that? Yes. If it's that, I've done it.'' The hon. Gentleman and I may have simplified that process by so describing it, but that is the character of what will take place.

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

Does my hon. Friend agree that we want to ensure that any wording does not have a perverse effect, such as to allow those who are concerned about the preservation of life to take one view but to allow others to take a different view about the value of that particular life?

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

I am glad that my hon. Friend made that intervention. His words stand, and I agree with him.

I conclude by saying that the tone of this debate has been proper, in the sense that enormous sensitivities are involved. People have to make terrible decisions about close family members who are incapacitated, and some people have to make such decisions as professionals. We all know that that is what we are talking about, and the sensitivity of this debate has been very high.

We all want to get to the same place; the question is about how we get there. In that context, my hon. Friend the Minister's commitment to remaining open-minded about how that can be achieved is to be welcomed.

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

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment No. 15, in

clause 4, page 3, line 1, leave out subsection (4).

Mr James Cran (Beverley & Holderness, Conservative)

With this it will be convenient to discuss amendment No. 92, in

clause 4, page 3, line 1, leave out from 'must' to 'the' and insert

'take steps to ensure that he permits and encourage'.

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

I assure the Committee that on this amendment I do not intend to open a debate as long as the previous one. This is a classic probing amendment, because it would delete subsection (4), whereas, as the Minister will remember from earlier debates, that is the last thing I want to do. Self-evidently, it is good practice that people who care should, as far as is reasonably practical, permit and encourage the participation of the person involved. I interpret the word ''participation'' in a lay sense, and I need the Minister's assistance in probing what it means in a legal sense. There is a difficult interface with the judgment to be made about whether a person lacks capacity.

We have already discussed the idea that assessing capacity is a functional test, and that a person lacking capacity in one respect may have it in another. We are now in a grey area, in which a person might almost have capacity, and subsection (4) would invite them to

participate in decisions. However, the status of that participation is not clear. The Minister is nodding; I am glad that I tabled the amendment so that we could probe the issue. The Minister is inviting the person to participate, but not to be the decision maker, because by definition, they lack capacity. However, if they are able to participate, it is worth asking whether they have the capacity to make the decision and whether they should make it, with whatever assistance is appropriate.

We have discussed that already. For example, we had a discussion about problems in clause 3(1)(d), which is about the inability to communicate decisions. Under clause 4, people who care are asked to get the person cared for to join in making a decision. They may have just a communication problem. However, at some point a decision has to be made about whether the person who cares should be the decider, or whether the person being cared for should make the decision, with assistance. Who would take the lead? We need an explanation.

I may be paving the way for the hon. Member for Chesterfield (Paul Holmes), who will want to speak to his amendment. In no sense am I signalling to the Committee. The Minister has been kind enough to acknowledge that I tabled an amendment about the person's feelings even when they lack capacity. We are not trying to shut people out or make an advance decision that they will never have capacity again. We are saying that we need to consider what constitutes participation in a decision. Under the clause, the person would not, by definition, take that decision. We need to consider what would be a reasonable effort by the decision maker to involve the person. We need to see what was in the Minister's and the draftsmen's minds in making the provision. We do not want to subvert it, but to ask for an explanation of it.

Mr Paul Holmes (Shadow Minister (Work and Pensions), Work & Pensions; Chesterfield, Liberal Democrat)

I, too, welcome you to the Chair, Mr. Cran. I have served in other Committees under your chairmanship, and I welcome your judicious application of the Rottweiler tendency, which keeps Committees on the straight and narrow, and making progress.

I am am speaking to amendment No. 92, tabled in the name of my hon. Friend the Member for Sutton and Cheam (Mr. Burstow) and myself. I appreciate what the hon. Member for Daventry said about trying to tease out the Minister's thinking, but our amendment is quite a reversal of his amendment, because he would remove subsection (4), while I seek to strengthen it considerably. It says that the person about whom decisions are being taken should be encouraged to participate

''so far as reasonably practicable.

and that others should

''permit and encourage the person''

to get involved.

That seems reasonable at face value, but I fear that it could offer a get-out clause, because the person making the determination of what is in a person's best interests might set too low a threshold for what is reasonable and practicable. That might happen for various reasons. It could be based on professional and

personal convenience when taking decisions in a busy pressurised setting, or on a preconceived and outdated view of what capacity constitutes, and what people are capable of.

Amendment No. 92 would strengthen the obligation on the person acting in the best interests of another to take all steps, and do everything possible, to ensure that they are supported in the decision-making process, rather than limiting that expectation. It would establish the importance of the individual's views, secure their maximum participation and recognise that people have an important contribution to make in the process of making decisions about their own life.

The code of practice will give examples of what steps could be taken to ensure the participation of the person involved, but the obligation to do so should not be restricted in the Bill. The starting point should be to maximise the participation of the individual concerned, but the current wording—''reasonably practicable''—runs the risk of allowing someone to circumvent the overriding requirement to support the person and endeavour to encourage them to participate in decisions about their own life. That is particularly important for people with learning difficulties, because lack of capacity should be regarded as a situation that often could, or should, be improved with appropriate support, rather than as something that simply exists, which people have to get round by appointing somebody else to take decisions.

Lack of capacity should not just be accepted with a metaphorical shrug of the shoulders as something that cannot be altered. As we now know, society's attitude has progressed so far that what was often perceived as a lack of capacity can often be overcome and people can, with the appropriate support from independent advocacy, take part in many decisions from which, until quite recent times, they would have been excluded.

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

It is important—as the hon. Member for Daventry indicated—that people who lack capacity to make a decision are enabled

''to participate, as fully as possible in any act done''

or decision made for them. Although I accept that the principle set out in clause 1(3), which concerns taking all practicable steps to support the person in making his or her own decision, embraces similar ideas, subsection (4) is about involving the person as part of the ''best interests'' assessment.

We do not want to cut the person with lack of capacity out of the decision-making process, and amendment No. 15 could have that effect, although I hear what the hon. Member for Daventry says about it being a probing amendment to ascertain what ''reasonably practicable'' means. The code of practice will set out further guidance for professionals on supporting people who make their own decisions in such judgments—for example, in overcoming communications difficulties, explaining things in simple language and overcoming initial resistance. We discussed that on Tuesday. I refer the hon. Gentleman to the draft code.

The Bill is also clear that capacity is situation-specific. Just because a person lacks the capacity to make one decision does not mean he lacks the capacity to make another. That means people can continue making decisions in the areas where they have capacity, rather than being given a blanket label of ''incapable''.

However, regarding Amendment No. 92, there will always be cases where, for urgent or non-emergency reasons, it would be inappropriate and not in a person's best interests to delay acting, which is why the words ''reasonably practicable'' are in clause 4(4). It is also unrealistic to expect all people affected by the Bill to be able to participate in decisions. The Bill applies to people in a coma, as well as to those who are seriously distressed or who need urgent care. While in some cases it would be possible to wait until the person is capable of making the decision themselves, in other cases it clearly would not.

The use of the phrase ''reasonably practicable'' is a pragmatic way to take account of such emergency circumstances, while maintaining the general requirement to follow the best-interest checklist wherever possible. Note also that ''reasonably'' imports the notion of objectivity, which, as we said this morning, the English common law system knows all too well. That means that any personal or professional convenience—which the hon. Gentleman suggested might arise—could not meet that requirement. Therefore I hope that he will be able to withdraw his amendment.

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

I am grateful to the Minister for his explanation. I am not sure it has taken us a great deal further in relation to my amendment, but as it has identified this subject as of great importance in the territory of the code, we can take it as paving the way for that.

When we are defining whether a person has capacity, we need to be clear that there is a distinction at any one time in relation to any one act. We must not muddy that decision. People, through their loss of capacity, do not become un-persons, and it is right that, wherever possible, we should take into account their decision. What we cannot do, as the Minister needs to remind himself, is to put them in the position of being substitute decision makers in their own case when they do lack capacity, because somebody else has to make that decision. As we have already exhaustively explained, that decision would be taken according to a different criterion—the best interests—and would be different from a subjective decision made by the patient themselves as to whether they had capacity. I do not think that it is necessary to detain the Committee on this subject, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

I beg to move amendment No. 136, in

clause 4, page 3, line 16, at end insert—

'(e) an independent advocate if (a) to (d) do not apply.'.

Mr James Cran (Beverley & Holderness, Conservative)

With this it will be convenient to discuss the following amendments: No. 95, in

clause 5, page 3, line 35, at end insert

'and P has sought the involvement of an independent advocate where the matter to be determined is one falling within section 34.'.

No. 96, in

clause 5, page 3, line 43, at end add—

'(5) Section 5 does not authorise an act in connection with serious medical treatment or a change in P's accommodation to a hospital or care home unless P receives advice from an independent advocate in accordance with section 34.'.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

I, too, welcome the fact that you are chairing the Committee, Mr. Cran. I do not see you as a Rottweiler—I see you more as a Golden Labrador, always pleased to see us stand up and make a contribution to the debate.

I feel that there is an omission in clause 5, and my amendment would add a paragraph (e) to ensure that there would be

''an independent advocate if (a) to (d) do not apply.''

I have a large group of people in particular in mind. Many adults with learning disabilities or autistic spectrum disorders still live at home with their parents. Some of those people are now reaching middle age, or even old age, and many of them remain at home, often without a proper care package or care plan.

We think that in an ideal world, everyone with a disability who is not engaged in work will have their own named social worker or community psychiatric nurse, and a care plan. In practice, however, that does not happen. We, as Members of Parliament, come across many such cases. We know that such people often remain living with increasingly elderly parents, and that when those parents are no longer able to care for them—they may have died, or need to go into care themselves—the person with a disability suddenly comes to the attention of the social services.

The social services department may or may not already know about that person and have an ongoing understanding of their cases, but at such points of crisis, someone from social services suddenly has to start taking an interest in what is to happen to them. The choice is usually about care, and particularly about housing.

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

Does my hon. Friend not agree that even before they have left the parental home, there may be a conflict of interest between the parents and the person for whom they care? The last thing that I want to suggest is that parents do not care for their children—they do. But we should remember that they have different interests and that another person may sometimes be needed to act as broker.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

Yes, that is true. However, that is not necessarily the scenario that I envisaged when tabling the amendment. We understand the need to improve and encourage independent living, which is not necessarily with parents, however it is supported. However, the reality is that a generation of older adults with learning disabilities still live with their parents and when a crisis comes—the parent has to go

to hospital or even dies—social services becomes involved.

Subsection (6)(b) refers to

''anyone engaged in caring for the person or interested in his welfare''.

At the point of crisis, therefore, it could be deemed that a social worker, previously or newly involved in P's care, is the person mentioned in paragraph (b). We touched on that point briefly in relation to a previous clause. It is not always appropriate for those in the pay of a local authority or other statutory agency to take such decisions. Such persons have a responsibility to their employer and have to work within the framework of resources that the employer says may or may not be available. That is why I ask for an independent advocate. At that point, it would be in P's interests. We have all seen the most inappropriate placements, made solely because the decision is made by social services working to a framework of its own, and not by those who would argue the case for P.

Mr Tom Clarke (Coatbridge & Chryston, Labour)

I do not wish to break the main thread of the hon. Lady's argument, but does she agree that a conflict of interests is possible not only between P, whom she clearly supports, and the social worker? If the parents and the social worker agree, but their view is not consistent with what P wants, that would be an even more major conflict of interests.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

That is right. We are talking about P's best interests, which is why we must bring someone independent into the decision-making equation. For example, a social services department that identifies a person with an autistic spectrum disorder might think it appropriate—I would not disagree—to encourage P to move into independent living, away from the parents. However, social services may be unable to put in place a support package and instead just move P from the parents' home into a block of flats to live with others with similar disabilities Particularly for people with autistic spectrum disorders, one of the biggest problems is social isolation and an inability to communicate with the people around them. However, they can cope if they have a package of care attached to independent living arrangements. The case that I am using as an example shows that if the parents or the social worker decided with the person who lacked capacity that that was the best option, but then failed, because of resource constraints, to put in place an appropriate package to support that person living independently in that flat, it would cause huge long-term problems. That is why I am worried about what I see as an omission in this section.

I am very concerned about the involvement of the social worker. I have a high regard for social workers—they do sterling work—but they have to act within a framework set by their employers and what they offer their clients is often based on what the employers tell them they can offer, rather than on an objective analysis of what is in the best interests of a given client at a given moment. The Joint Committee touched on that problem when it considered the matter. We must not give social workers a charter to deliver what they have available, rather than what is needed.

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

Does my hon. Friend agree that, because there are specific duties in the Bill, including the negligence clause, social workers could be put in a difficult position, having at the same time a legal obligation to follow the instructions of their employer and a legal duty to the person for whom they are caring? The two might conflict and, they unable to resolve the dilemma, they might find themselves in court being prosecuted for something that they tried to do to balance those interests.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

Indeed, and we see more and more cases coming to court, certainly in relation to autistic spectrum disorders, due either to a refusal to provide an appropriate package or to the provision of a inappropriate package to the detriment of P. Will the Minister consider the matter carefully? I am sure that the problem is due to an omission, but that will not satisfy the concerns that were expressed in the scrutiny Committee when we discussed the matter and took evidence.

Mr Paul Holmes (Shadow Minister (Work and Pensions), Work & Pensions; Chesterfield, Liberal Democrat)

I shall speak specifically to amendments Nos. 95 and 96, but I offer full support to all that has just been said by the hon. Member for Tiverton and Honiton about amendment No. 136, to which I have put my name.

Amendments Nos. 95 and 96 reflect the concerns of the Making Decisions Alliance, which believes that there are benefits in setting in statute a clear definition of a protective act. One of those benefits is that statute can specify which matters fall outside the scope of the protective act and what conditions should be attached to it. The alliance fears that the Bill does not contain enough procedural safeguards for the use of the protective act and that clause 5 does not adequately define the scope of a protective act or seek to impose any limitations on it. The aim of the amendments, which relate to clause 5 but tie in with our discussion in relation to amendment No. 136 to clause 4, is to ensure that the concept and the scope of the protective act is better defined, and for the protective act to be more circumscribed.

The purpose of the amendments is to provide an explicit link to the safeguards that are already provided in clause 34. As clause 34 sets out the circumstances in which decisions under a protective act should be subject to the input of an independent consultee, those circumstances should be explicitly referred to in clause 5, as proposed in amendments Nos. 95 and 96 and, in part, in amendment No. 136 to clause 4. In order to strengthen and circumscribe the role of the protective act, we wish to tie in the reference to independent advocacy to the independent consultees, who are mentioned in clause 34 but not specifically referred to in clauses 4 and 5.

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

I am grateful to my hon. Friend the Member for Tiverton and Honiton for raising the issue, and to the hon. Member for Chesterfield. To respond to him first, there seems to me to be an argument for paving our way into the later clauses, which make provision for an independent consultee in relation to really serious decisions. I am sure that the Minister will explain that.

My hon. Friend has made a plea for widening the remit of the independent consultee or independent advocate, which clearly implies potential commitment of greater resources. We need to be aware of that and must discuss at the appropriate point. I do not have an open cheque book for the Opposition, and I do not expect the Minister to have one either.

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

I am grateful.

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

Perhaps the hon. Gentleman is a shadow Chief Secretary to the Treasury in the making. Of course we must have regard to resources. Perhaps I may caricature Ministers' stance on this—not unkindly, I hope—as an abiding fear that if we begin to expect advocacy for everything, we shall need a very large cheque book. It will be possible for every decision—such as whether breakfast should be Shredded Wheat or Weetabix, to take it to an absurd level—to be taken up by right with an independent advocate. None the less, although I do not want to put words in the Minister's mouth, I think we all agree that my hon. Friend has drawn attention to some real issues.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

I want to clarify that paragraph (e), which would be inserted under my amendment, would apply only if paragraphs (a) to (d) did not apply. I am not looking for independent advocacy in every case; I simply want it if the other elements are not present.

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

My hon. Friend is right to state that reservation. We are feeling our way through a difficult field. We want the persons concerned to have access to independent advocacy when that is appropriate and no one else is available. We do not want decisions to be taken by persons who have a conflict of interests, even if that is caused by a perfectly proper factor such as a social services resources agenda, as though those decisions were definitive, objective and solely in the best interest of the person concerned.

Mr Paul Holmes (Shadow Minister (Work and Pensions), Work & Pensions; Chesterfield, Liberal Democrat)

I remember a debate two or three years ago about independent advocacy and resources when ''Valuing People'' was first being discussed. In the context of ''Valuing People'' and the Bill, does the hon. Gentleman agree that it is all very well making the right noises about independent advocacy, but if the resources to ensure provision where it is needed are not provided, those are just hollow words? We must deliver on what we say.

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

I have much sympathy with what the hon. Gentleman has said. We have a delicate balance to achieve. On one hand we must provide viable and effective independent advocacy where there is a clear need for it. On the other hand, we cannot permit unlimited advocacy for everyone, which would have resource implications and dilute the Bill's impact.

Mr Tom Clarke (Coatbridge & Chryston, Labour)

Both the hon. Member for Tiverton and Honiton and the hon. Member for Chesterfield touched on a current topic. They may recall that following the passing of my Disabled Persons (Services, Consultation and Representation) Act 1986, which had advocacy at its heart, Mrs. Thatcher devised a means of dealing with questions of resources by responding—until she ceased to be Prime Minister—with the words ''when resources allow.'' Perhaps at the least we can make

commitments. The Minister will no doubt take on board the expression ''when resources allow'', but the issue of advocacy will not go away.

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

The right hon. Gentleman is most feline putting an elegant case to the Minister and trying to help him. We all understand the ground rules. If we are honest, we—certainly those of us who worked on ''Valuing People''—understand that it is one thing to say what we should have, but another to deliver. It is incumbent on Ministers to provide the best possible framework, so that the measure works in those cases in which it needs to.

To return to the point that I was making when the right hon. Gentleman interrupted me, we should not use any advocacy provision to dilute the importance of the decisions that persons with care should be taking for a person. It does not absolve them of their interest; there is no point in their shuffling it off on to somebody else. That is an important consideration. We should not make the provision a devalued currency that is open to be used for the kind of trivial decisions that I caricatured a moment ago; on the other hand, we should not rule out the possibility of making provision for advocacy where it is really needed. The Minister has already conceded, in later clauses, the principle about independent consultees, and I think that we will return to these matters, but it would help if he could give us a working document or text as to where he has got to with this sensitive and important area.

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

I thank the hon. Members for Sutton and Cheam and for Tiverton and Honiton for raising the issue of independent consultees and advocacy. I will first willconsider the amendments tabled by the hon. Member for Sutton and Cheam, which would more closely link the involvement of independent consultees—or advocates, as he would call them—with clause 5. I know that his intention is to make absolutely sure that independent consultees are involved in decisions, and that that is flagged up at an early stage in relation to the important defence in clause 5, which deals with acts in connection with care.

We agree that the involvement of independent consultees is important, which is why we have created the new safeguard in response to concerns that were raised during pre-legislative scrutiny. We are fully committed to ensuring that independent consultees are provided, and involved, in order to protect especially vulnerable people who lack capacity and who are what has been described as unbefriended.

We have provided for independent consultees in clauses 34 to 39, which we will come to. Those clauses impose a duty on the relevant NHS body or local authority to provide for independent consultees when serious treatment or changes in residence are proposed. If an NHS body or local authority fails in its duty either to provide an independent consultee or to consult them when the Bill requires, it will be open to challenge via the appropriate local complaints mechanism, and ultimately through judicial review.

The Bill clearly imposes a duty on local authorities and the NHS to provide independent consultees.

In contrast, clause 5, which has been completely recast, has an entirely different focus and purpose: it is there to protect individual carers. On Tuesday, the hon. Member for Daventry spoke about day-to-day care and issues—the acts in connection with care that people have to do on behalf of someone who lacks capacity. We recast the clause because of the Joint Committee's concerns. We took on board the Committee's recommendation and reconsidered the ''general authority'' that had caused concern, and we have now made it plain that clause 5 provides a defence from liability for individuals who must undertake particular acts of care or treatment for people who lack capacity. Let us be clear that clause 5 does not provide an authority to act. It authorises neither the NHS to provide treatment nor a local authority to arrange accommodation. Clause 5 simply provides protection for the individual nurse, social worker, informal carer or parent when they carry out their caring role for people who lack capacity. As such, it would not be helpful to link a public duty with an individual defence.

The amendment to which the hon. Member for Tiverton and Honiton spoke is designed to ensure that a decision maker takes into account the views of an independent advocate when determining the best interests of a person who lacks capacity, if there is no one else to be consulted. The clause specifies those whom the decision maker should consult in determining best interests: they include family and friends, informal carers, any attorney or deputy and people who care for the person in a professional or voluntary capacity, as well as anyone whom the person has named to be consulted or anyone with an interest in the welfare of that person. That is because such people will often have important information and views on what would be in a person's best interest and insight into that person's past and present wishes, feelings, beliefs, values and other factors.

Advocacy is good, but not for every decision under the Bill. Independent advocates can play a useful role, but the clause already requires that the decision maker take into account the views of an existing independent advocate. It would be inappropriate for the Bill to set out a requirement for the decision maker to consult an independent advocate for all considerations of best interest where there is no one else to consult. Consideration of best interest applies to all decisions and the amendment appears to seek to involve an advocate but without giving weight to the seriousness of the decision that requires that advocate—I think that the hon. Member for Daventry was getting to that point. The proposal would be over-bureaucratic, costly and unhelpful, and I say that notwithstanding any promotion to a position in the Treasury that the hon. Gentleman mentioned.

The issue is important. We have put in place a role for advocates for those who are unbefriended, but we cannot begin to thrust advocacy into all sorts of situations surrounding the decisions that the Bill encompasses.

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

In a mutual exchange of compliments, perhaps I can take the Minister a stage further. Subsection (6)(b) refers to

''anyone engaged in caring for the person or interested in his welfare''.

I realise that there is a degree of ambiguity in the word ''interested''—indeed, I have expressed concerns about the possibility of conflicts of interest. Will the Minister reflect on whether the phrase ''interested in his welfare'' might include somebody who in relation to a specific matter stood as an advocate for a person in question, was known to the decision maker, and could be consulted on it?

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

We have talked about subsection (6)(b)—indeed, all of subsection (6)—in the context of serious decisions made at the end of life. The requirement to consult in such circumstances is important. It includes any interested person so, yes,

an advocate is included in that respect. However, the Bill also covers many day-to-day actions and decisions, such as helping someone to button his coat or doing their laundry for them. Following consultation with stakeholders about where they considered people who lacked capacity were most vulnerable, we are providing under clauses 34 to 39 an independent consultee service for the most serious decisions that must be made about medical treatment and moves into long-term care when a person who lacks mental capacity has no friends or family, or unpaid carers who provide care or treatment. It is important that the Government target resources.