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

I beg to move amendment No. 35, in

clause 20, page 11, line 37, at end insert

'except in case of urgent necessity'.

We now move on to restrictions on deputies. As the Minister will appreciate, we are shifting to the personal care and welfare side of things. Nevertheless, this is all part of the complex matter of ensuring that the safeguards are watertight.

Clause 20(2) refers back to clause 16(5) and clause 17:

''Nothing in section 16(5) or 17 permits a deputy to be given power—

(a) to prohibit a named person from having contact with P''.

That is my primary concern, although I suspect from the way that the amendment is drafted that it would also embrace subsection (2)(b).

I am worried about whether there is a real-world problem in relation to an urgent situation. We are moving from what has been essentially a doctrine of necessity, where people have been able to do whatever was necessary, to a codification of the law. That, rightly, has to set limits as well as give powers.

I understand that it is not appropriate in normal circumstances for a deputy to have the power to prohibit a named person from having contact. That could be a serious and distressing issue if, for example, the person was a loved sibling or spouse who might have given rise to difficulties, or whom the deputy might have judged had done so. I agree that, ultimately, it would be improper for the Court of Protection to take that decision. However, circumstances could arise in which it would be

necessary for a deputy—although not necessarily a deputy; it could be somebody who is a carer under clause 5—to exclude access to a particular person. Someone could have had a seizure of some kind, or in the extreme case have gone mad, or have become violent or distressed. Therefore, it might be necessary—to protect the person without mental capacity—for someone to be excluded, even if in normal circumstances it would be perfectly reasonable for them to have access.

I do not know whether there is still some overriding safeguard in clause 5 or in some residual doctrine of necessity that will enable the deputy to protect the person without capacity in those circumstances. The Minister must say whether there is such a safeguard. I envisage that that would be in exceptional cases, but that is exactly what we are trying to do: ensure that there are no exceptional circumstances in which the deputy has to sit back with folded hands and allow something to happen that would probably be very distressing, and possibly even dangerous, for the person without capacity. That is a small point, but equally it is an important safeguard to achieve.

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

A key principle governing deputies is that they cannot do more than the person could do if he or she had capacity. That is why it would be odd to give a deputy the power to direct someone responsible for a person's health care to allow a different person to take over that responsibility. That is something that the hon. Gentleman and I cannot do, so it would be odd to give that power to a deputy. In a sense, only the court has that power, so it is right that only the court can do this for people who lack capacity.

On the question of prohibiting a named person from having contact with the person lacking capacity, again only the court has the power to stop people having contact with others. Of course, if a deputy has doubts about someone's conduct, he is entitled to ask the Court of Protection to make a judgment, or to apply for a non-molestation order as a litigation friend. Clause 28 is there to provide protection for people who lack capacity and to protect the underlying ethos of the Bill, which is one of empowerment, personal autonomy and minimal supervision. Extending the powers in the Bill in the way suggested by the amendment would therefore be unhelpful.

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

Allowing me to intervene might allow the Minister to blow his nose, which might also be helpful.

I want to be clear about the Minister's argument against the amendment tabled by the hon. Member for Daventry with respect to how it would affect the power to prohibit a named person. Clearly, with regard to matters covered by clause 17, someone who has lasting power of attorney can take such decisions, so will the Minister explain a little further why it was not believed to be appropriate for a court to be able to give someone within its power as a deputy the right to be able to say that certain persons cannot have access?

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

The court can prohibit or direct people, but an individual cannot. It is right that that scrutiny is very definitely within the ambit of the court. That is part of the court's broad powers to put its orders into effect, so in appointing a deputy, it is the court order that, in a sense, falls within its ambit. The deputy can take away the person who lacks capacity, but they cannot control the third party. That would run into other areas of both common and criminal law.

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

Presumably, however, the Bill envisages that a donee can in some way act to affect a third party in some way. How can a deputy be deemed not to be able to act in that way, but a donee can?

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

We debated this earlier. The hon. Gentleman might recall that I reminded him that the deputy acting on health and welfare most often provides consent. I wanted to ensure that he did not believe that such a deputy was providing care in the way he was suggesting.

I entirely understand the hon. Gentleman's point, but he is not making that subtle distinction. Therefore, the deputy is not instructing the third party. He is working in tandem with the third party, authorised by the court and subject to the restrictions, or at least the directions, that the court has given him.

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

It is important that we tease out such matters. My reading of the Bill is that clauses 17 and 20 taken together relate only to deputies, not to attorneys. Clause 17, which glosses clause 16 powers, enables the deputy to decide what contact, if any, he is to have with the specified person. In other words, such matters centre on the person and whether he is to be introduced to someone. However, under clause 20 the restriction—the subject of the amendment—would be to prohibit a named person from having contact with P, which ties in the named person, not P himself. In one case, P is looking outwards to other persons whom he might encounter. In the other case, it will prohibit anyone other than the court from forbidding an individual from contacting P on his own initiative. Is that correct?

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

The hon. Gentleman's explanation is helpful, but clause 17 definitely relates to the powers of the court, not the LPAs. That is not inconsistent with what I have previously outlined. The point is that the donee or deputy does what the person who lacks capacity could otherwise do, but we cannot prohibit people from doing things to us—or, directly, doctors. I am sure that we will come on to such matters when we discuss the next amendment and the relationship between someone who has that power but who in practice has to work in conjunction with other professionals, who will usually be doctors or social services personnel.

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

I am grateful to the Minister for giving way again. I want him to understand that my motive in tabling the amendment was to make sure that we had not by accident lost the deputy any common law rights of intervention in an urgent situation. For

example, if someone were loose with a knife in the Committee Room, we would not want a deputy to be inhibited from intervening, because we would all have a common law right to try to prevent someone else from being injured. Perhaps the Minister can deal with that issue, too.

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

In such circumstances, other areas of law would kick in, without prejudice to the Bill. I assure the hon. Gentleman that whether I was a deputy or not, I would intervene if someone took out a knife. I ask him to withdraw the amendment.

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

The Minister has sought to answer my question. We have exposed our potential concern. We have received some useful clarification, bearing in mind the fact that such matters are driven by the courts, and that if someone is acting of behalf of another person, they should not have a power beyond that of the person concerned. The principle is sound. It has been worth rehearsing it, and we might need to reflect further on what has been said to see whether we can pick up on anything later. For the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment No. 103, in

clause 20, page 12, line 9, leave out from 'P' to end of line 10.

Mr Alan Hurst (Braintree, Labour)

With this it will be convenient to discuss the amendment No. 104, in

clause 20, page 12, line 11, leave out subsection (6).

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

This group of amendments, and the discussion that I hope that we will have about it, follows on from the exchange that we have just had about whether it is right for a court to be able to subcontract to a deputy a matter of such importance as the decisions concerning consent to the withdrawal or withholding of treatment. The amendments indicate clearly that those are not matters that a court should delegate to an individual; it should be impossible to envisage any circumstances in which it would be appropriate for the court to abrogate its responsibility to see those matters determined in court. I would be interested to know whether the Minister thinks that there are any such circumstances. The intention of the amendments is to remove the last part of clause 20(5) and to delete subsection (6), which follows it.

The Minister said just now that it was right for the court to retain within its ambit the ability to scrutinise decisions with regard to access by P. If that is so, I find it hard to understand and square the idea that it might be right for the court not to be in a position in which it, and it alone, can scrutinise the fundamental issues of life and the withdrawal of treatment—so I look forward to the Minister's doing that for us. The purpose of the amendment is to ensure that we are clear about where we are, and where the Bill will take us. I hope that the Minister can give us some clarification and reassurance.

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

I endorse the comments that have been made about the need for clarification. The important point about life-sustaining treatment, or its withdrawal, is the one expressed in the definition. It is not an issue to which one can return if somebody's life has come to an end, or been terminated, because the treatment has been withdrawn. It is difficult to see that that would be an inappropriate matter for the court, particularly where there might be an argument, or a perceived argument, about any potential difficulty in the position of the deputy, who might have other interests as well, and might be seeking to reconcile them. I do not want to open the issue of euthanasia—we will want to give further consideration later to advance decisions and the way in which they will operate—but the issue is very serious.

Perhaps the Minister has concerns about overload, and whether many decisions would be referred to the court on a precautionary basis. I am, at least partially, sensitive to that. However, there should be no doubt about the seriousness of these issues. Talking of well-considered judgments, it is worth recording for the Committee the fact that there have been a number of recent cases in which courts have decided life and death issues—the Wyatt judgment comes to mind, but it is not the only one. In a way, because of the sensitivity of the judgments, they have succeeded broadly, if not in satisfying, at least in reconciling, the parties to the very difficult situation that has to be met. Any suggestion that that could be subcontracted, even to a sensitive individual, would be unfortunate. That is the nature of our concerns at this stage.

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

Of course I fully understand the concerns of the Committee. Hon. Members are entitled to ask why a deputy should be given such a power, and under what circumstances the situation would arise. I must emphasise that we concluded that it was right to give him the power partly for the reason that the hon. Gentleman indicated—examining the cases that come before the High Court and the difficult determinations that it has to make, and seeing how many times people are required to go to court for that purpose. Let me explain why.

On pages 73 and 74 of the code of practice, hon. Members will see that

''It is expected that the appointment of a deputy to make personal welfare or healthcare decisions is likely to be needed only in the most extreme cases'',

so the provision definitely relates to exceptional circumstances. None the less, the court should be able to provide a deputy with the power to give or refuse consent for life-sustaining treatment. It is important that I explain the reasoning.

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

I am not seeking to make the Minister's life more difficult, but confining that to the most exceptional cases raises the question of why it is necessary at all. If he had a resource issue concern about large numbers of cases flooding the Court of Protection—which I trailed to him as a possible problem—I would understand his position. However, if he is saying that the provision would be used only exceptionally, one has to ask why it is necessary.

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

If the hon. Gentleman will forgive me, I should like to make some progress.

As hon. Members know, and as I have indicated previously, we expect the vast majority of deputies to be financial deputies appointed by the court. Health and welfare deputies will be appointed very rarely, because in most cases the framework for decision making in health and welfare is clearly set out and formal powers will not be necessary. However, in some cases—for example, where there are disputes among family members about the appropriate course of treatment for a person lacking capacity—a deputy's appointment would be in the person's best interests.

Let me make it clear that in such circumstances the court is unlikely to appoint as a deputy someone who is unknown to the person. There is a general feeling, in scrutinising this area, that people would say, ''Who is this impostor—this person no one knows—who is to be appointed by the court to come in and play such an important role in these important decisions?'' Appointing someone who has no particular insight into the person's wishes, feelings, values or healthcare needs would not be in the person's best interests. The court must appoint a deputy only if that appointment would be in the best interests of the person lacking capacity under clause 16(3).

Why is it appropriate for deputies to have the power to refuse treatment? In some situations it will be appropriate that a deputy has the power to refuse consent to life-sustaining treatment. That will probably happen where there is some dispute. Imagine an adult suffering from a terminal medical condition whose parents disagree with the person's spouse about which treatment options should be accepted or rejected at a particular stage. That happens, albeit rarely. There are a handful of such cases that end up in court when parents disagree with the wife or husband.

When a condition is terminal, all sorts of treatments can be considered to be life-sustaining, from prescribing antibiotics to performing operations. It is sometimes even hard to decide whether a treatment might be life-sustaining. In such cases, where relatives bitterly disagree about the treatment options for a person lacking capacity—

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

Will the hon. Gentleman give way?

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

I am not giving way at this point.

In disputes about whether treatment should be accepted or rejected at a particular stage, it would be extremely burdensome for all concerned—but most importantly for the person lacking capacity—if each treatment decision had to be taken to the court for resolution. That could cause delays and unnecessary suffering for the people involved. In such cases, where disputes are ongoing and predictable, the court may see no benefit to anyone in a later return to court, and decide to appoint a suitable relative, carer or friend with express powers. That person would then work together with medical staff.

Let me make this clear: I have given the example of a dispute between a wife and a mum and dad. A court will need to determine who to appoint as the deputy, difficult though that may be. About three to five cases a year fall into that category. In those circumstances, the alternative is to require a person to come back to court for every treatment decision along the line.

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

I am genuinely grateful to the Minister for giving way; my question is solely on this point. I had already anticipated that he might say something about conditions. As I understand it, if one might refer back to recent judgments such as the Wyatt case, which I mentioned, the court does not give the absolute view that no further treatment should take place, but says that certain treatments should not be initiated if a prior condition arises. I seek to assist the Minister by suggesting that presumably, the role of the deputy would be to say, ''This prior condition has now arisen, and within the general framework set out by the court, I decide that no further treatment is required because of the condition,'' so the overall direction will be from the court. The deputy's role may be to show that the condition has been satisfied on behalf of the court. Is that the sort of thing that the Minister has in mind?

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

It is. That is why clause 20(5) and (6) provide that the deputy may refuse consent to life-sustaining treatment on behalf of the person concerned in cases where the court is satisfied that exceptional circumstances exist and where the court has expressly conferred that authority. That will occur in very rare circumstances.

There are examples from case law of the High Court hearing disputes between families—for example, between a wife and a mother, or between the children by a former marriage and a new husband—in which the courts have had to take a view on how best to determine a person's best interests, particularly at the latter stages of life. Again at this point in the Committee, we come to consider those difficult decisions; judgment calls do have to be made.

The hon. Gentleman will know that there are some forms of cancer with which, at the end of life, there are difficult judgments about whether one continues with a course of chemotherapy. There may be two relatives in entire disagreement, and the court will have to adjudicate on that. It will have to give the role of deputy to one of the relatives so that the decisions can be made.

In any case, under clause 16(4)(b), the court is always obligated to give the deputy powers that are

''as limited in scope and duration as is reasonably practicable in the circumstances.''

That is obviously important. The power to make decisions about life-sustaining treatment is needed only in exceptional circumstances, and very rarely. We are not expecting more than two or three such cases a year. The draft code of practice explains when we expect health care deputies to be used.

I hope that I have been able to reassure hon. Members. I absolutely understand the reasons for tabling the amendments, but for those two or three cases a year, are we to tell the families involved that they must always return to court, given that there can be numerous treatment decisions along a particular clinical pathway?

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

The Minister has been helpful in putting on record the framework in which the exceptional circumstances arise. If the amendments have done no more than prompt that, it was useful to have tabled them. I am sure that some people will still consider this part of the Bill, unamended, as an area for concern because of what it says and the signals that it gives out, but the Minister has said sufficient to

satisfy me and enable me to withdraw the amendment. I might take advice from outside, but he has given a clear exposition of the circumstances in which the limited power would be used. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 ordered to stand part of the Bill.

Clauses 21 to 23 ordered to stand part of the Bill.

Further consideration adjourned.—[Ms Bridget Prentice.]

Adjourned accordingly at twenty-four minutes to Five o'clock till Thursday 28 October at half-past Nine o'clock.