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

I beg to move amendment No. 241, in

clause 24, page 14, line 19, after 'not', insert 'or is'.

Mr James Cran (Beverley & Holderness, Conservative)

With this it will be convenient to discuss the following:

Amendment No. 36, in

clause 24, page 14, line 21, at end insert

'provided that the decision is not voided by uncertainty'.

Amendment No. 37, in

clause 25, page 14, line 37, at end insert—

'(2A) An advance decision is not valid unless it is made in writing and witnessed by one independent person of standing, except in case of urgent necessity'.

Amendment No. 102, in

clause 25, page 15, line 8, at end add—

'(7) An advance statement shall normally be recorded in writing and witnessed by a third party.'.

Amendment No. 215, in

clause 25, page 14, line 37, at end insert—

'( ) is unable to prove he was not suicidal at the time the advance decision was made.'.

Amendment No. 216, in

clause 25, page 14, line 37, at end insert—

'( ) was not made aware of the consequences of the advance decision when it was made.'.

New clause 1—Advance statements on treatment: general—

(1) In this section and sections 25 and 26 ''advance statement'' means either

(a) a decision made by a person (''P''), after he has reached 18 and when he has capacity to do so, that if—

(i) at a later time and in such circumstances as he may specify, a specified treatment is proposed to be carried out or continued by a person providing health care for him, and

(ii) at that time he lacks capacity to consent to the carrying out or continuation of the treatment, the specified treatment is not to be carried out or continued, or

(b) an advance request made by a person (''P''), after he has reached age 18 and when he has capacity to do so, specifying what treatment he would wish to receive should he become incapable of participating in decisions about his treatment.

(2) For the purposes of subsection (1)(a)(i) and (1)(a)(b), a decision may be regarded as specifying a treatment or circumstances even though expressed in layman's terms.

(3) An advance request may specify that P wishes all reasonably practical steps to be taken to maintain his life, including initiation or continuation of artificial nutrition and hydration.

(4) P may withdraw or alter an advance statement at any time when he has capacity to do so.'.

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

I want to speak to this important amendment, which takes us on to advance decisions. It is necessary to scope in advance, if I may use that phrase, the fact that this is already part of the common law; it already happens. This is not new law; this is not breaking new ground. To remove advance decisions would either leave us within the common law or, if we were to exclude them, change the situation and preclude some freedoms of choice of the individual, which is not the intention of members of the Committee, although I ought to put it on the record.

Let us discuss the issues that therefore arise in respect of establishing the ground rules under which advance decisions have been made and, first, whether they are freely made; secondly, whether they are relevant to the circumstances; and, thirdly, to what extent they may or may not override the best interests of the person concerned. We should pause at that point to make it clear that—this is the explicit wisdom of the common law and it will be continued under the Bill—advance decisions would override the best interests of that person.

Clinicians might say about a person who lost capacity, ''We would like to do this, but the advance decision made by this person when he had capacity precludes us from doing so.'' Therefore, it would be unethical to take action because the person's view—to use a lawyerly phrase—would trump the views of the clinician, even if it overrode best interests.

The Minister may have a little difficulty—I want to return to a matter in relation to research—because, as the principle of best interests is central to the Bill and set out in clause 1, we must consider whether the provision constitutes a derogation from it. I see him nodding about the legalistic concerns. In the real world, Parliament has never sought to overturn, nor should it, the basic principle that someone should be able to make and announce decisions ahead—even signal decisions—but not in a way that necessarily is coincident with his best interests when he made them.

I shall leave the hon. Member for Sutton and Cheam (Mr. Burstow) to speak to his amendments. Mine are designed primarily to develop some safeguards and concepts. There will be a debate when we consider a later group of amendments about the fears of those who have written to us suggesting that euthanasia would somehow be facilitated by the process or that doctors might in the extreme case be obliged to kill patients, which is not an argument that everyone makes. My amendments are about the nature of the decision and the safeguards that attach to it.

The purpose of amendment No. 241 is to achieve a point of neutrality in respect of advance decisions. There is a slight implied bias—I do not say it is intentional, but that is how it could be construed—in the clause that an advance decision is about saying, ''I don't want this to happen to me in certain circumstances.'' The Minister will be familiar with the Burke judgment and I realise that his officials are actively considering its implications. I do not necessarily want to open up that whole area, but obviously it is now a matter of record and it must influence our discussions. The judge in that case

essentially took an interest in the express preference for treatment of the person concerned.

My amendment would make it clear that an advance decision could go in one direction or the other. It would not be a choice between on the one hand saying, ''I don't want treatment,'' and, on the other, saying nothing at all; it would be a choice between saying, ''I don't want treatment,'' or, ''I do want treatment in certain circumstances.''

The Minister will rightly reply—we need to put this on the record—that, of course, nobody has to make an advance decision. So, if their view is neutral on the matter or if they are, as I suspect many of us might be, content to leave it to the discretion of the doctor at the time should circumstances arise that some of us might feel were difficult to specify in advance, one respects that.

All I am saying is that if one is going to take an advance decision seriously, one should not load the course with the presumption that an advance decision will necessarily be against treatment. I am not sure whether I put in the right number of negatives, but I will try to put that point again by turning it into the shorthand language that people sometimes use. A living will does not have to point towards death or no further treatment. It could equally say, ''If this happens, I would like to be treated.'' That was the substance of the eloquent intervention made by the hon. Member for Crosby (Mrs. Curtis-Thomas) on Second Reading. Her mother had reached a view. That was done at the latest possible moment, but the view was, nevertheless, valid.

Amendment No. 36 is somewhat procedural. I suspect that the Minister will tell me that it is not necessary and I shall almost be content if he does. Clearly, there is an understanding in the clause—sparked by subsection (2)—that we should not be too prescriptive about advance decisions. When people are ill, they may be conscious that they are likely to die before long, even if they are not in the terminal stages. They will not necessarily want to summon a lawyer and have everything put in the kind of elegant prose that I am sure the Minister could, as a professional person, offer them. They will want to say something like, ''Look, I don't want you messing about with that,'' if I may put it vulgarly. We need to respect that.

One of the difficulties of what is going on here, and indeed about moving to codification from the common law, is that every decision must be considered in relation to not only what is codified in the Bill, but the code of practice. Anything that is at all ambiguous may be litigated upon. Clearly, there is a point at which somebody might say something that they thought was definitive, but which turned out to be rather vague. The Minister will be aware of what, sadly, sometimes happens when lay persons draft wills and say that they want to leave all their money to P or Q. In such cases, it is not clear whether money means cash sums or other assets, so the matter goes to the law courts anyway.

There is some concern. The wish is to be helpful to persons who are intimidated, so to speak, by the whole process of the law and ensure that they do not have to tie everything down too formally. However, on the other hand, they must make it clear what they mean. As I recall, the example given about an advance decision involved someone saying, ''I do not want anything done to my tummy.'' However, it is not quite clear where a tummy begins and ends, if I may put it that way. A procedure involving abdominal surgery may or may not be in the stomach area, so we need to be a bit careful about that.

That brings me conveniently to my next point, which relates to amendment No. 37, in which I ask for an advance decision not to be valid

''unless it is made in writing and witnessed by one independent person of standing, except in case of urgent necessity''.

I have been not immensely influenced—the amendment has been tabled for a long time—but immensely reassured by the extensive opinion of Dr. Fiona Randall, which I hope members of the Committee have now read. Dr. Randall is a consultant at the Christchurch hospital in Bournemouth, and I gather from her letter that she has been assisting the Department on several issues and that she has written to all members of the Committee. I received her letter only this morning so I cannot claim fully to have assimilated it, although I do not think that that was intentional and it is much better to have the letter than not.

Dr. Randall has been closely involved with the Department; indeed, her letter begins by saying—this is the only point that slightly surprised me—that the Department had requested her to write to members of the Committee. She sets out several useful safeguards, although I should make it clear that they come within a context of general support, which I share in this instance, for the Minister's proposals. This is the first safeguard:

''The Bill should make it clear that an advance statement must be formulated with adequate information from a doctor familiar with the patient's clinical situation''

to ensure that the patient has adequate information. That relates to some later amendments and I will not read the rest of the statement. The letter continues:

''The advance statement must be signed by the patient . . . The doctor providing the information . . . must also sign . . . The statement must be dated and witnessed—consideration should be given as to whether the doctor could or should act as the witness''

or whether there should be an independent witness, such as a solicitor.

Finally, the letter states:

''A statement which meets the above criteria should then be assumed to be valid''.

I should, however, enter the caveat that Dr. Randall is concerned about clause 25(2), which she thinks would give

''the doctor the almost impossible task of deciding whether P 'has done anything else clearly inconsistent with the advance decision remaining his fixed decision.' ''

I would hate to be the judge who had to hear such a case.

Therefore, in the context of Dr. Randall's genuine and extremely welcome support, which she intensely argues in her long letter, she says that further safeguards are required, and I agree. The only reservation I anticipate is that there will obviously be life-and-death situations in which it is better to have a decision quickly, even if one cannot go through the full paraphernalia of safeguards. We should be able to respect such a view, which is why the amendment includes ''urgent necessity'' as a caveat.

The Committee needs to remember that we are talking about very serious cases; indeed some, which we will debate when we consider a later group of amendments, are matters of life and death. We must therefore take this issue seriously and apply due process. Bearing in mind the debates that we will have later about Bournewood, failing to apply due process and adequate safeguards would bring the European Court down on us like a ton of bricks—not that failing to take account of such things would be acceptable to us, I hasten to say.

We must therefore get things right for the person concerned and we should respect their advance wishes. I do not mind calling those an advance decision, because we are talking about a decision that is, one hopes, relevant to a specific and definable situation—we shall come to validity and applicability—but which has merely been transferred forward from when the person had capacity. It is also revocable, of course, if circumstances change; the Minister knows that it is not an absolute.

That principle is fine, but we need to make sure that when someone makes such a decision they have not been unduly influenced. The person who interprets their wishes should not be in a clinician team that might be thought—even when the motive is clear—not to be acting in the person's best interests, or thought to be seeking to steer the person into making a particular decision. Those are the safeguards that we should consider.

Others hon. Members will speak about their own concerns, but I advise the Minister that, if the provisions are to be acceptable and some of the concerns expressed by the pro-life lobby and others met, some movement in our direction would be extremely helpful.

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

I shall speak to an amendment and a new clause that stand in my name and that of my hon. Friend the Member for Sutton and Cheam. The purpose of amendment No. 102 is straightforward and self-explanatory. It would provide an extra safeguard and takes a belt-and-braces approach to the witnessing of advance directives. Many people expressed the concern that if only one person witnesses an advance directive, there is potential for pressure to be put on the person making the directive—that the witness may lead that person in a certain direction.

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

I do not disagree with the hon. Gentleman's argument, which is consistent with mine, but does he not agree that safeguards regarding a life-or-death decision should be at least

as rigorous as those applying to will procedure, which might only deal with the disposition of small amounts of property? Although they should be as rigorous, they will not be unless the safeguard is included in the Bill.

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

I thank the hon. Gentleman for his intervention and agree with him. As he says, a will can deal with either a considerable or a small sum, and making an advance directive suggesting what an individual would wish to happen to them in certain medical circumstances is a far bigger matter for everyone concerned than the disposal of material possessions. It is important that all possible safeguards be put in the Bill.

People have expressed the fear that if there is only one witness to an advance directive, the likelihood is greater of a decision being recorded that was not fully freely arrived at by the individual. The purpose of amendment No. 102 is to add belt to braces by calling for a second witness, so that altogether there are three signatures on the advance directive. Of course, having two witnesses can never be a complete safeguard, but we have to draw the line somewhere: we could provide for three, four or five witnesses to add more safeguards, because in theory two witnesses could collude to lead a person into an advance directive. One can never be absolutely certain, but the amendment straightforwardly tries to add extra reassurance and an extra safeguard in the making and witnessing of advance directives.

New clause 1 is more substantive than amendment No. 102. On discussion of the draft Bill, on Second Reading and in Committee, what force advance directives should have and what wishes they can express have clearly been major questions. In all those debates there has been strong support for two aspects of the advance directive argument. First, there is the argument that people should have the right to make advance directives so that, in certain medical circumstances, they can exercise some control over, give some expression to, or make some declaration about, the sort of judgment that they would like to be made in respect of receiving treatment that they fear might be withheld for various reasons, for example, medical convenience, or because others might judge their best interests as they themselves would not do themselves if they had that choice. In addition, there is the argument that advance directives should cover the expression of a positive wish that certain forms of treatment and nutrition continue when one is incapacitated, even though medical practitioners might say that that is not the best thing to do.

Secondly, but equally, there is strong support for the other side of the argument: that individuals should be able to make advance directives that have more legal force to allow them, well in advance of developing a debilitating condition, to express their personal judgment about the circumstances in which certain treatments should be withheld.

Committee members have given eloquent examples of members of their families and how they informed their positions in the debate. My father had Alzheimer's; over a period of several years, I watched him die. Committee members have been sent material from all sorts of bodies, but I was

particularly struck by the material sent by the Alzheimer's Society. It points out that advance statements—advance directives, living wills, or whatever term one wishes to use—

''allow people to state what forms of treatment they would or would not like carried out should they become unable''

to express a decision. The Alzheimer's Society supports

''the use of advance directives because they enable those with dementia to have a say in their future care'',

and points this out:

''Most people prefer not to think about illness and death.''

In his opening comments, the hon. Member for Daventry (Mr. Boswell) said that there was no compulsion on people to make advance directives. The vast majority of people never do—they do not have to. However, some people do think about it, especially those who have advance warning that they will reach a state of no longer being able to express their personal opinion about what should be happening to them, as people with Alzheimer's do. Most people prefer not to think about the issue, but some do. Some people are put in the position of having to recognise that one, two, three or more years down the line, they will not have capacity. The Alzheimer's Society argues that people with Alzheimer's disease

''are often anxious about what will happen should they reach that stage.''

They may be anxious that treatment that they would like may be withheld, or that

''life-sustaining or life-prolonging treatments will continue to be provided long after they are able to achieve a level of recovery or length or quality of life that they would at present consider to be acceptable or tolerable.''

There is strong support for all aspects of the argument over advance directives, and sometimes those aspects are in conflict. It seems eminently logical that individuals should have the right and the capacity in an advance directive to express their preference regarding what should happen to them in certain circumstances—either that treatment should continue beyond the point at which a medical practitioner might say that it is not sensible or worthwhile, or that in certain conditions they do not want to receive certain treatments or nutrition. However, there is some logical inconsistency in one of the arguments that we have heard: that an advance directive for treatment and nutrition to continue is good and we should respect that wish, but if somebody makes an advance directive saying that under certain conditions they do not want nutrition or medical treatment to continue, they cannot have known what they were saying and we should therefore override that decision at a later date. It cannot logically be said that an advance directive for treatment and nutrition should be respected, but an advance directive to withhold treatment or nutrition under certain conditions should not be.

New clause 1 is designed to offer reassurance to both sides of the debate. It offers the possibility of recognising both forms of advance directive and

creates an overarching category of advance statements while distinguishing the two separate types of advance request. One type is the request for treatment, which currently does not carry legal force, which would continue into the period of the individual's incapacity, when they could not make such a decision any more. The normal doctor-patient relationship would continue because the individual would have been able to make an advance directive expressing his wishes. As we have heard during previous sittings, the doctor and other people involved would take a prolonged look at the situation and exercise their judgment, but their deliberations would be informed by the clearly expressed view of the individual. The new clause would distinguish such a directive from advance refusals, which do carry legal force, regarding the sorts of treatment and nutrition that might be withheld under certain circumstances.

If we are to extend the autonomy of individual decision-making through the Bill, which is the Bill's purpose, we must respect the individual's right to make advance directives in both directions—for doctors to provide or to withhold treatment and nutrition in certain circumstances—and their right to inform future decisions taken by their relatives, doctors and others involved. Logically, if we support one form of advance directive, we also support the other. We cannot pick and choose and say that the person is capable of expressing an opinion in one direction but is not capable of expressing an opinion in the other. New clause 1 is designed to establish a stronger legal framework to give more equal weight to both forms of advance directive.

Ms Claire Curtis-Thomas (Crosby, Labour)

I rise to speak to the amendments that have been tabled today, and start by talking generally about advance directives as they are treated in the Bill. [Interruption.]

Mr James Cran (Beverley & Holderness, Conservative)

Order. Is the hon. Lady giving way?

Ms Claire Curtis-Thomas (Crosby, Labour)

Does my hon. Friend want to make a contribution?

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

Yes. My hon. Friend referred to amendments that have been tabled today, but she did not say which ones.

Ms Claire Curtis-Thomas (Crosby, Labour)

I intend to speak to all the amendments to clause 24 that have been tabled for consideration today.

The Bill has opened up discussion about advance directives. I have thought about the circumstances in which they will be produced. I suppose that people outside Parliament presume that something called a legally binding advance directive is be a legally binding document of some sort in which an individual's wishes are expressed. We know that that is not the case at the moment. A legally binding advance directive can be the result of a conversation between two individuals that was not witnessed by a soul—a conversation that took place years before that ''legally binding advance directive'' was ever brought to bear. I am immensely concerned about that.

Mrs Joan Humble (Blackpool North & Fleetwood, Labour)

As has been said, we already have

living wills and advance directives. Is my hon. Friend not reassured that the proposals in the Bill and the draft code of practice tighten up the very areas about which she is concerned? Under the provisions, advance directives must be up to date, must have been discussed with health care professionals, and must be relevant to the issue that the doctors are considering. The Bill and the draft code of practice contain a range of safeguards to ensure that the advance directives are not out of date or vague as that my hon. Friend outlined.

Ms Claire Curtis-Thomas (Crosby, Labour)

My hon. Friend and I will have to agree to differ. Those reassurances are not in the Bill as I read it.

Mrs Joan Humble (Blackpool North & Fleetwood, Labour)

They are in the code of practice.

Ms Claire Curtis-Thomas (Crosby, Labour)

But they are not on the face of the Bill, and the code of practice is discretionary. The difference between the Bill and currently prevailing circumstances is that advance directives are currently not legally binding. The Bill proposes to make them legally binding.

Mrs Joan Humble (Blackpool North & Fleetwood, Labour)

They are.

Mr James Cran (Beverley & Holderness, Conservative)

Order. Let me make it clear for the sake of making it clear: anyone can intervene, but we cannot have private conversations in the middle of speeches.

Ms Claire Curtis-Thomas (Crosby, Labour)

I repeat that, currently, a private conversation between two individuals that is not witnessed by a soul can be brought into play many years later in circumstances that may or may not have been specified at that time.

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

I am following the hon. Lady's argument with interest and, as ever, with some sympathy because of the intensity of feeling that she and others have about this matter. Does she agree that currently advance directives are legally binding? The issue is not whether they exist—she may beg to differ—but the conditions under which their existence is established, and the safeguards that prevent, for example, subsequent self-reference by a doctor who says, ''That's what the patient told me,'' without any other supporting evidence.

Ms Claire Curtis-Thomas (Crosby, Labour)

I have some sympathy with the hon. Gentleman's comments, but I support the amendments that introduce a degree of security that is not present, and through my amendments, I seek to provide further security for individuals who wish to make legally binding advance directives. If the amendments are not accepted, individuals' conversations might become legally binding in 20 years' time. Perhaps the Minister or anther hon. Member can tell me otherwise, but I am not aware of any rule that states that a legally binding advance decision must be reviewed annually to see whether it is still relevant and whether it takes into account any medical or other progress that might make invalid the decision and the discussion between the individuals in question. Those amendments tabled by members of the Committee need to be supported if my concerns are to be addressed.

For several reasons, I cannot support oral advance directives. I refer hon. Members to the excellent note that I believe we all received from the Lawyers Christian Fellowship and the Maranatha movement. That relatively short and concise document argues against legally binding advance directives as currently constituted, which could result from a conversation between two individuals. It states that it is

''impossible for doctors to know for certain that an AD was not written under duress''.

The note says ''written'', but as we know, it may be that nothing is written: the advance directive could have resulted from a conversation between two people.

The document also discusses revocation, and states that it is not possible for a doctor to know that the conversation between the two individuals was the only conversation that the relevant individual had on that subject. There could have been others in which that individual might have changed their mind about whether they would wish to receive certain treatment. The document also points out that people who make such decisions in such conversations rarely know what medical advice and assistance might be available to them in certain circumstances. Oh, that we knew what will happen to us this afternoon—but we do not. I presume that most of us have a view on how we would wish to be treated if we were in a certain condition, but unless we discuss the decision with a doctor who has some knowledge of that area, how do we know that our decision is in the best interests of our life and health? Two lay people discussing what might happen in certain circumstances occurring far off in the future are not equipped to make such a serious decision, given its implications.

A group of people about whom I am particularly concerned are those afflicted with serious forms of depression who have other medical conditions that they may wish to use as a vehicle to commit suicide through an advance directive. I refer particularly to people with obsessive-compulsive disorders such as bulimia or anorexia nervosa—the illness known as slimming sickness, in which sufferers seek to starve themselves to death. Anorexia normally afflicts young people going through puberty, but it can afflict much older people. I refer also to people with diabetes, which also affects many young people. As many of us know, that condition can be difficult to manage in young people, which can produce a depressive state. Obsessive-compulsive disorder is normally accompanied by a depressive state.

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

I do not know what knowledge my hon. Friend has of diabetes, but is she claiming that people with diabetes are more prone to depression?

Ms Claire Curtis-Thomas (Crosby, Labour)

No, I am not saying that. I am saying that people with obsessive-compulsive disorders and diabetes can be in a depressive state as a result of their condition. Such people can feel intimidated and rendered useless by their condition, which frequently seems to be outside their control.

Let us assume that the amendments tabled today are accepted—I wish I could be confident that they will be—and that advance directives must be made in writing, witnessed by independent individuals who

have no vested interest in that document, and signed by a doctor who has informed the person making the directive about the consequences for his life and health of the decision that he is making. In that situation, an individual who is substantially depressed might go to the doctor and say, ''I have severe diabetes,'' or, ''I am anorexic.'' Incidentally, neither condition causes a person to lack mental capacity, and people with obsessive-compulsive disorder can hold down good jobs and manage their lives well, even if they are in a poor physical state and racked by depression; they are not mentally incapacitated, but perfectly lucid. However, someone could say to their doctor, ''I am diabetic. In the event of my falling into some form of coma, I do not want to be treated.'' That would not make much sense to anybody who knows that diabetes is treatable, although it can be difficult to manage. The doctor would have to deal with the fact that the individual might be absolutely overcome with depression, and that his way of dealing with it is to use an advance directive to lose his life.

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

Will my hon. Friend give way?

Ms Claire Curtis-Thomas (Crosby, Labour)

May I make some progress?

I believe that the same could be true of someone who is suffering from anorexia. Many families in this country care for and love people—particularly young people—who are affected by it. If they are under 18, their parents have a degree of discretion concerning their health and welfare and their care. However, under these measures, over–18s would be able to decide for themselves what action should be taken in the event of their lapsing into a state of unconsciousness. Parents, friends and family of people with anorexia know that, regardless of their wishes, such individuals may well need a period of unconsciousness to enable them to receive certain forms of treatment that might result in their feeling better when they recover consciousness. People deal with such situations every day. What is to prevent such an individual from having a discussion—

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

I hesitate to interrupt my hon. Friend's train of thought, but I have to refer her to clause 3(1)(c), which states very clearly that somebody would lack capacity if he were unable to weigh information. That would certainly include those suffering anorexia, obsessive-compulsive disorder or depression.

Ms Claire Curtis-Thomas (Crosby, Labour)

Is the Minister saying that somebody with an obsessive-compulsive disorder or any other condition that could render him incapacitated at some point in the future is not capable of making a legally binding advance directive?

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

We discussed decision-specific capacity when we considered clause 3(1)(c), and the Committee has discussed the fact that capacity has to be decided case by case; it is decision specific and it fluctuates. That provision would give a doctor a lot of reason not to accept an advance decision in such circumstances.

Ms Claire Curtis-Thomas (Crosby, Labour)

I am grateful for the Minister's reassurance, but I would be far more

comfortable if he were to accept the amendments, which stipulate that in respect of an advance directive. If we put in the proposed safeguards, far more of us will feel comfortable. I want to move away from the possibility of an oral advance directive's being regarded as legally binding. I want us to introduce the concept of documentation that accurately reflects what a person would want in certain circumstances, and I want that expression of intention to be witnessed by an independent third party who has nothing to gain from the death or the continuing life of the individual in question. In addition, I want a doctor to be involved, so that the doctor can adequately brief the individual who is making decisions on the consequences of those decisions and what will happen to him in certain circumstances.

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

Does the hon. Lady recall that the Minister said earlier—in respect of the clause on principles, I think—that information is the cardinal point of the Bill? Therefore, a person in the position that she describes should be entitled to proper clinical information on the likely consequence of his actions, and to an appraisal of whether, to use the old phrase, the balance of his mind is disturbed in coming to any decision.

Ms Claire Curtis-Thomas (Crosby, Labour)

I accept that. However, the amendments that have been tabled in relation to this clause are designed to safeguard the individual and they are desperately needed. We have to move away from the situation in which an oral discussion between two parties becomes legally binding at a future date. Individuals have always had such conversations—mothers and daughters, fathers and sons, or good friends might have them—and it is absolutely right that those conversations be brought to the attention of doctors if and when that is proper.

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

My hon. Friend has prayed in aid the condition of diabetes, but I think that she has misrepresented it. Is she talking about type 1 or type 2 diabetes? The treatments are very different.

Ms Claire Curtis-Thomas (Crosby, Labour)

I used the example of diabetes because in my surgery I have had to deal with very young people with uncontrolled diabetes. I do not know which sort it is, but it requires—

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

May I help my hon. Friend? There is a vast difference. Type 2 diabetes can be treated through diet and with oral medication. People who are insulin dependent are likely suffer from type 1, so I suspect that people in such a difficult situation have type 1. My point is that if my hon. Friend is to pray in aid such conditions, she should understand them.

Mr James Cran (Beverley & Holderness, Conservative)

Order. We are extending the debate into a discussion about diabetes and I wish to stop it. The point has been properly made and we should return to the amendments.

Ms Claire Curtis-Thomas (Crosby, Labour)

The point that I am trying to make, Mr. Cran, is that diabetes can produce a depressive state of mind, as can other conditions.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

I apologise for not having been here when the hon. Lady began speaking. It is quite common for an underlying depression to manifest alongside a large

range of physiological problems; and sometimes it emerges as a side effect of drugs being taken. The difficulty arises if the depression is not identified at the time when a directive is being prepared. I wonder if the hon. Lady thinks—and I should like to deal with this question later, because we have not dealt with it enough—that we should include in the Bill many more checks and balances in the form of a statutory second opinion.

Ms Claire Curtis-Thomas (Crosby, Labour)

Yes. I wish that I could have argued as eloquently as the hon. Lady did on that point. I have talked about what I know: I have dealt with individuals—particularly young women—with diabetes that has produced appalling depression, and with people with obsessive-compulsive disorder, which also produces serious depressions. I have dealt with people who managed the depression quite well and went on with their lives, but who had an underlying desire to lose their life and had the means to do so through, in one case, a physical condition and, in the other, a mental condition.

I broadly support the amendments because they are a first attempt—only that—to improve the legality of a legally binding advance directive and increase society's confidence in such documents. That confidence is necessary. If we leave things as they stand, the legally binding advance directive could consist solely of a conversation between two people, one of whom might stand to gain from that conversation. I find that unacceptable. The amendments in the group, including those that I tabled, would involve third parties and independent witnesses, and would formally involve medical opinion, in the process. It is vital that individuals considering such a significant step in their lives have medical opinion to inform them that the decision that they are about to take is in the best interest of their life and health.

Ann Winterton (Congleton, Conservative)

The debate on this group of amendments has been very interesting, and certainly some very telling points have been made, including what the hon. Member for Chesterfield (Paul Holmes) said about his father having Alzheimer's disease. My mother died of dementia and I know what that means not just for the person with the disease, but for the family, because my mother was nursed at home by my two sisters. However, I want to pick the hon. Gentleman up on one point: never at any time would we have considered that basic care—hydration and nutrition—should be withdrawn. That would have been intentionally to kill my mother. I have to admit that I prayed that my mother would die, and sooner rather than later; but there is a world of difference between hoping that she would be released and taking any action—whether a positive act or an act of omission. We thus return, although the issue is not specified in the provisions under debate, to the question of basic care and treatment. That is critical in looking after people with limited mental capacity, including the elderly.

To pick up the point made by the hon. Member for Crosby, I wonder about the extent to which any doctor or care worker could be confident that a person with limited mental capacity had not been subjected to

pressure when making an advance directive. We all know that the elderly are vulnerable. I am getting older and do not want to be a burden on my children—I mean many years from now, of course, because I am still quite a spring chicken, despite what I have just said; but I can see the day coming when I might be vulnerable, and, even at this stage, I want my children to have the advantages of life that I may not have had. That follows through into end-of-life issues.

The National Hospice Council said in its evidence to the House of Lords Select Committee on Medical Ethics that

''the precise interpretation of an advance directive would always be open to doubt''.

We know that the Scottish Parliament has rejected the idea of binding advance directives as too dangerous; they were deleted from the Adults with Incapacity (Scotland) Act 2000. It would be ludicrous if advance directives were made legally binding on one side of the border and on the other side such a concept were rejected as too dangerous. I think that I will have to move to Scotland; I am half Scottish, so that will not be too bad.

The hon. Lady also spoke about oral advance directives. Under the Bill, they would indeed be legally binding, which could leave patients' lives in the hands of unscrupulous people. I have no doubt that the majority of people will be honourable and responsible, but the law should take into account the protection of the vulnerable from the unscrupulous.

Parliament has been through all these issues, although not this House. In 1994, the House of Lords Select Committee on Medical Ethics conducted an inquiry into advance directives. It is interesting that most of its members were initially in favour of legally binding advance directives, but after they took evidence they came up with some good conclusions. The Committee recommended that advance directives should not be made legally binding in statute law. Paragraph 264 of its report states:

''We suggest that it could well be impossible to give advance directives in general greater legal force without depriving patients of the benefit of the doctor's professional expertise and of new treatments and procedures which may have become available since the advance directive was signed. We recognise that it would be possible to specify precisely particular categories of treatment which a patient would find unacceptable in any circumstances, such as a blood transfusion in the case of a Jehovah's Witness'',

which is well recognised. In the preceding paragraph the Committee recommends that advance directives that are not legally binding should be encouraged. I agree with that. The Committee states;

''Advance directives may express refusal of any treatment or procedure which would require the consent of the patient if competent. We emphasise however that they should not contain requests for any unlawful intervention or omission''—

we have been over that issue—

''nor can they require treatment to be given which the health-care team judge is not clinically appropriate.''

That is fairly straightforward.

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

I am following the hon. Lady's argument with interest. There is a great deal of common ground between us in respect of these amendments—for example, we agree about the need

to put in safeguards such as written directives and independent witnesses. However, will she clarify some of the ongoing logic? I am in the process of making a living will; I have meant to do that for a long time, but taking part in this Committee has given me the focus to do so. The argument seems to be that at some point in the future, medical experts could say that in the light of events, my advance directive or living will should no longer be seen as valid, and they will override my decision. Does the hon. Lady also agree that if someone makes an advance directive stating that they want certain treatments or nutrition in certain circumstances, the medical experts could again say that that is not appropriate and they will override that?

Ann Winterton (Congleton, Conservative)

The hon. Gentleman raises two valid points. How often will legally binding advance directives have to be made? They will have to be updated to a reasonable extent, because medical science progresses. But yes, if he makes a living will that is legally binding now, it will have to be abided by if he falls ill in 10, 15 or 20 years. I will come on to the point about doctors later—I have some good points to make in that respect. In 10, 15 or 20 years the hon. Gentleman might have lost mental capacity, but the people who are making the decisions at that time might know full well that his condition could be, if not cured, at least ameliorated so that he could live for some reasonable further period of time—to see a new baby born into the family, perhaps, or to make another will if he had the capacity to do so.

There is danger inherent in the provision. Most people do not make ordinary wills, which is often a tragedy. One needs to update one's will as one's circumstances change. We often overlook that because it costs money, and sometimes we do not have the time and we do not want to think about it, but we ought to do it. How much more important will it be to have a legally binding advance directive updated every time medical science changes? I put it to the Committee that it would be almost impossible to do so.

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

To pursue that point, the Alzheimer's Society emphasises that the person making an advance directive or living will should revisit it every few years and update it, as they would an ordinary will. That makes obvious sense with either an ordinary legal will or with an advance directive. However, does the hon. Lady accept that if I were to make that living will now and in 20 years' time I was incapacitated and it became relevant, if it was the only written expression of my intention, although 20 years out of date, it would at least be a clear expression of what I would like to happen in certain circumstances. It may be out of date, but it is better than nothing.

Ann Winterton (Congleton, Conservative)

I believe that it may not be better than nothing, but it will be a legal document that is out of date. It will put doctors, who have a responsibility and duty to the patient to undertake treatment in the patient's best interests where appropriate, in a dilemma. Later, I will come to some information from doctors about how they view legally binding advance directives.

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

Does my hon. Friend agree that although we ought to have great sympathy with the concern that she is expressing, one of the logical difficulties of excluding legally binding advance directives is that they give a doctor no discretion in interpreting best interests? If there is no other information, the doctor must go by best interests and that might be contrary to the previously expressed wishes of the person concerned. That is a difficulty, which is why I come down in favour of enabling them to be specified.

Ann Winterton (Congleton, Conservative)

I hear what my hon. Friend says, and it would concern me if a doctor were to judge such matters on best interests when those best interests do not encompass the life and health of the patient. The doctor has a professional duty to his patient.

The House of Lords Select Committee on Medical Ethics recognised the dangers of treatment being delayed if doctors were required to take into account the possibility of an advance directive. In paragraph 201, it stated

''the BMA suggested that if advance directives were legally enforceable doctors will feel uneasy about their authority to act in an acute clinical situation if they were not certain they had a patient's express consent to treatment.''

The BMA has since changed its view on advance directives, but its original concern is still valid. Paragraph 265 goes on to state:

''There should be a presumption, in the absence of any explicit instruction to the contrary, in favour of all ordinary care and clinically indicated treatment being given. A doctor who treats a patient in genuine ignorance of the provisions of a directive should not be considered culpable if the treatment proves to have been contrary to the wishes therein expressed, and there should be no expectation that treatment in an emergency should be delayed while inquiry is made about a possible advance directive.''

The Mental Capacity Bill does not include any right of conscientious objection for doctors, which is a concern. However, the Committee recognised such a right. That is implicit in paragraph 265, which states:

''Doctors who anticipate having conscientious objections to complying with the directives of their patients should make this clear at an early stage in their preparation, so that patients may transfer to other doctors if they wish.''

Good advice can be taken from that.

My hon. Friend the Member for Daventry intervened to ask about the following point: in making decisions and subsequently in this Bill, the Government claim that advance directives are already legally binding according to common law. They have been challenged a number of times to cite a definitive case to support general acceptance of advance directives as legally binding. I hope that the Minister will be able to do so.

Instead of citing such a case previously, the Government have mentioned three cases that are of highly questionable authority. The most contentious, and the one that everyone will recognise, is the application of the Airedale NHS trust to end the life of Mr. Anthony Bland—a case that had nothing to do with advance directives. The court admitted at the time that he had not given any indications of his wishes. Why should he have done? He was a young man who

was absolutely football crazy. He went to a match and did not imagine for one minute that what later happened was a possibility. Most young people do not even think of the possibility of dying, because they think that they are immortal. We have all been through that stage and can identify with it. The conclusion was reached that Mr. Bland would not have wanted to continue living in a persistent vegetative state. However there was no way of confirming that. That is a clear indication of the dangers of citing such a case as the basis for a law making advance directives legally binding. The application to the court was that assisted food and fluid was a form of treatment that could be withdrawn, which returns us once more to that central point.

The second case, re. T, related to the refusal of a blood transfusion by a Jehovah's Witness on religious grounds. I will come to the detail of that case later, as it is very interesting. The aim had nothing to do with deliberately ending a patient's life, nor did it involve a general refusal of treatment made in advance of the time when the patient was subject to the relevant condition. I am sure that most people in the Committee and elsewhere accept the right of Jehovah's Witnesses to declare in advance that they do not want a blood transfusion. I disagree with them fundamentally, but I respect their view.

In the third case cited by the Government, re. C, the patient was in a mental hospital and the court decided that he was competent to make his own decision. He was fully aware of the specific condition for which he was refusing treatment—the amputation of a gangrenous leg. While the court ruling was binding on the doctors for the future, the patient could change his mind and he knew the possible consequences of refusing treatment. That case, like the previous one, was not about general refusals of treatment made in advance of the time when the patient was subject to the condition for which they refused treatment. It is therefore worth asking the Government why they persistently claim to support the House of Lords Select Committee on Medical Ethics, from whose report I have quoted, which opposed giving statute force to advance directives, and why they have stated throughout that the Mental Capacity Bill does not enshrine the Bland judgment in statute law. Yet the Government persistently justify the clause making advance directives legally binding, citing as their justification the Bland judgment—the very judgment they have promised throughout not to enshrine in statute law.

Furthermore, the Mental Capacity Bill would enable proxy decision makers to enforce advance directives, which may be written or oral. There is one exception only to that, which, in the interests of time, I will not go into now.

I mentioned the case involving a Jehovah's Witness. I have a little bit of the judgment with me and I hope, with your permission, Mr. Cran, to tell the Committee about it. The case related to a woman who, when she was a Jehovah's Witness, had left an advance directive declaring that in no circumstances would she have a blood transfusion. Subsequently, she married a Muslim, who made it a condition that she had

nothing more to do with the Jehovah's Witnesses. In fact, she never thereafter attended any further religious meetings. To all intents and purposes she had rejected her previous faith. When the woman became ill and in need of a transfusion, the matter of her advance directive was raised and the hospital was unwilling to give her the necessary treatment. Consequently, her father appealed to the court on the grounds that she was no longer a Jehovah's Witness and her advance directive no longer applied.

Mrs Joan Humble (Blackpool North & Fleetwood, Labour)

The hon. Lady is highlighting an interesting case, but she has not said whether or not that woman lacked capacity when she was in the hospital. If there was still a presumption of capacity, which is the basis of the Bill, she could still have told the doctors that she wanted a blood transfusion. The Bill would have protected her.

Ann Winterton (Congleton, Conservative)

The hon. Lady makes a reasonable point. In this case, the father had to go to court to make the judgment different, because the circumstances had changed between the time the woman made the legally binding advance directive and the time of her illness. She may well have been unconscious at the time and unable to have her decision rescinded.

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

Will the hon. Lady be comforted by clause 25(4)(c), which was added because of the concerns voiced by the Roman Catholic Church and the Anglican Communion? Under that provision, an advance decision will not be valid if the circumstances change.

Ann Winterton (Congleton, Conservative)

That is a good thing to have included in the Bill, but I am not 100 per cent. comforted by it, because the principle is still an extremely difficult one. We are dealing, as we have said several times, with the difference between theory and what happens on the ground. I hope that the Minister will not mind if I relate what happened in the case. .

Paragraph 50 of the judgment given at the end of that case states that

''putting the father's case at its very lowest, there must in the light of his evidence be very considerable doubt as to whether the advance directive is still valid and applicable. There is simply no clear and convincing proof that the advance directive is still valid and applicable. The father's evidence having raised doubts—real doubts, not fanciful doubts or mere speculations—those doubts must be resolved in favour of the preservation of life.''

Will the Minister give me some comfort about doubts being resolved in favour of the presumption of life? I would be comforted if he gave me that assurance—that legally binding assurance.

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

I was going to deal with this later, but as the hon. Lady has asked for a response now, I shall say that the effect of the changed circumstances and, most important, clause 26(2) and (3) is that there would be a presumption in favour of the preservation of life, because a doctor would have to be satisfied.

Ann Winterton (Congleton, Conservative)

That is certainly of some comfort, but I point out to the Minister the danger of legally binding advance directives. I am all in favour of voluntary ones. I know that the Bill is supposed to address this sort of issue, but if the father had not appealed to the court, the woman would not have

received any blood transfusion and could have died. The judge was very critical of the hospital. If the Bill could prevent that situation, which remains to be seen because the Bill has not yet been sufficiently amended, that is to be welcomed, but many more safeguards would have to be included to ensure that it did.

Finally, I would be very grateful if the Minister cited the legal case on which the Government's position is predicated, to which I referred earlier.

Mrs Joan Humble (Blackpool North & Fleetwood, Labour)

I have listened with interest to the debate. We have had two very detailed contributions from my hon. Friend the Member for Crosby and the hon. Member for Congleton (Ann Winterton), yet both talked about present difficulties and circumstances as well as the problems of people who want to make advance directives. When the Joint Committee considered the matter, I do not recall anyone questioning the fact that living wills are already legally binding, and we took a great deal of evidence about them. However, we also had evidence of the difficulties of monitoring them properly and of safeguarding the individual.

Ann Winterton (Congleton, Conservative)

It is my understanding that advance directives are legally binding in common law, but the Government have not yet been able to cite a specific case that backs up that assertion. I mentioned that earlier, and I know that the Minister will respond to that point in his winding-up remarks.

Mrs Joan Humble (Blackpool North & Fleetwood, Labour)

I am sure that my hon. Friend will respond to that specific point. The explanatory notes refer to a case and state that the High Court recently confirmed that

''a competent adult patient's anticipatory refusal of consent remains binding and effective notwithstanding that the patient has subsequently become incompetent''.

No doubt my hon. Friend can add to that.

The debate is important because it has highlighted the understandable concerns about individuals who make advance decisions, sometimes in distressing circumstances. Their illness might cause them depression and anxiety, and they have to try to make a balanced judgment about what treatment they want to receive. The Bill is based on a presumption of capacity to make decisions. Earlier clauses highlight circumstances in which an individual might not have the capacity to do so, and take into account the worries of those who may have an illness that is so overwhelming that they are depressed and incapable of making a reasonable decision. The Bill then moves on to people who are capable of making decisions and their safeguards when making a decision about a possible future event and anticipating what medical advances will have taken place.

The next clause highlights some of those protections. I am pleased that the Government have introduced them because the Joint Committee recommended that

''the Bill should aim to set standards for good practice and ensure a means of challenge under circumstances where there were disagreements that could not be resolved.''

The Government responded positively to that recommendation and highlighted the fact that the

''Court of Protection will have jurisdiction in respect of advance decisions.''

Notwithstanding those reassurances, I wrote to Lord Filkin asking for further clarification and the circumstances in which an individual could have additional protection. Sadly, I do not have a copy of his reply among my many papers, but it was reassuring. It referred to the proposals in both the Bill and the draft code of practice, as well as the need to ensure that individuals are properly advised when they make advance directives, that they receive appropriate support when making such decisions, that they receive medical advice, which is updated, and that the advance directive refers specifically to the particular course of treatment that they might require. Above all, when the time comes and the people are in hospital, the doctor still has a responsibility to ascertain whether they are capable of making decisions, and still has a duty of care to those individuals as patients.

Ms Claire Curtis-Thomas (Crosby, Labour)

Just for clarification, is my hon. Friend saying that she would be happy if individuals making an advance directive had the support and guidance of the doctor about particular medical treatments that they were either seeking to refuse or to receive? What confidence does she have that, when the time comes for the decision to be implemented, that conversation will actually have taken place between the individual concerned and the doctor?

Mrs Joan Humble (Blackpool North & Fleetwood, Labour)

My hon. Friend makes an important point. We had much debate in the Joint Committee about the registration of advance directives and the fact that the individual's intentions must have been made absolutely clear and not relate to a conversation that was held 20 years previously. The directive must be able to be discussed and verified.

I am reassured by clauses 25 and 26, which go into much more detail. I want to ask my hon. Friend the Minister about the role of the draft code of practice, because there are provisions in the Bill that I find reassuring and that are genuine safeguards, so what validity will the further advice in the code of practice have? What information will be available to individuals who want to make advance directives? What guidance will they receive on how to set about that? What information will they get and to whom should they speak? What reassurances can they be given about the fact that future advances in medical treatment will be taken into account? We are talking about a very important decision for them. I understand that those who tabled the amendments want to strengthen the support given to individuals, but will that support be offered through the code of practice, too? To whom will that code of practice be sent?

Ann Winterton (Congleton, Conservative)

I feel that the hon. Lady is coming to the end of her contribution, so will she describe what she thinks will happen in an emergency when a legally binding advance directive has been registered?

How often does she believe that such advance directives should be updated in line with changes in medical care?

Mrs Joan Humble (Blackpool North & Fleetwood, Labour)

That is covered under a later clause, and it was certainly covered in the response that I received from Lord Filkin, which said that in those circumstances a doctor could carry out emergency treatment and not be liable to any penalty. That is an important reassurance for doctors, because if someone comes in on an emergency trolley, doctors cannot know whether the individual has made an advance directive. The doctor must first assess the patient's competence to make decisions and should talk to the person who comes in with that individual to try to find out whether the patient has made any advance directives. The onus is on the medical professionals to make sure that they know all that they can about the patient.

Clause 24, which sets out the principle, is important. This is our opportunity to clarify what might be unclear in common law and to make sure that there are safeguards for doctors, patients and their carers.

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

I am keen to get to get on, Mr. Cran, because I know that the Committee is guillotined, but it is important that I discuss advance decisions in some detail and set out exactly what we are attempting to do, in order to give further clarification. The debate touches on emotive and difficult issues, and it is important that I take the Committee through the necessary clauses.

Simply put, an advance decision enables people to refuse specified medical treatment at a point in the future when they lack capacity. At present, if a doctor offers anyone a particular treatment, they have the right to refuse consent to that treatment. It is important to understand that those can only be decisions made when someone has capacity.

Ann Winterton (Congleton, Conservative)

Will the Minister give way?

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

I wish to make some progress.

There are situations in which people refuse treatment, not in life-threatening circumstances, but because they want to make their case clear. An example would be a woman undergoing reconstructive surgery, perhaps following breast cancer. Some women may believe that it is right to live with their body as it is after breast cancer and may not want any treatment to reconstruct their breast. That is an advance decision stating, ''This is what I require in those circumstances.'' It must be right, therefore, that we offer people the option to refuse consent to specific treatment in advance to ensure that their refusal is respected if and when they lack capacity.

Advance decisions already exist at common law, and the Joint Committee agreed that that was right. Recommendation 56 stated:

''We recommend that the Bill should permit . . . advance decisions to refuse treatment . . . that right is recognised in law for those who are capable . . . and we think it is right that the Bill should provide for those who wish to do so to have the legal means to have that decision respected should they become incapable.''

At this point, I have to clear up some confusion. It is important that we understand the effect of clause 3 and the principles that it states regarding the inability to make a decision and regarding capacity, because they go to the heart of the assurances that my hon. Friend the Member for Crosby sought. The provisions ensure that if someone who is anorexic wished to make a particular advance decision, the judgment about whether they could weigh information appropriately would mean that they were unable to make that decision. Similarly, the provisions ensure that someone with obsessive-compulsive disorder would be unable to make an advance decision because of their lack of capacity. The same would be true of people with certain depressions. Those with severe diabetes—I do not want to prejudice what my hon. Friend said about diabetes—could also be included. Therefore, the ability of someone who fell within a category covered by clause 3 to make an appropriate advance decision would be totally undermined, notwithstanding the safeguards in the advance decision clauses, and I shall come to those, because they are important.

On the first day that the Committee met, there was some discussion about the relationship between advance decisions and the best interests principle that underpins the majority of the Bill. The principle of best interests does not govern advance decisions to refuse treatment, because as autonomous human beings each of us has the right to make our own decisions, even if others perceive them as irrational. An individual does not have to act in his or her own best interests and can make decisions that others think are unwise, but those taking a decision for someone who lacks capacity cannot be unwise or irrational: they can act only in that person's best interests. There are therefore two important distinctions in the Bill. It must be right that all of us here can make an irrational advance decision, but if we are acting on someone else's behalf, their best interests should kick in because we are not substituting our judgment for theirs. I do not want that important concept to be lost.

At the same time, however, we must put safeguards in place, and I am keen and happy to have a discussion about them, because they are important. In that respect, we listened intently to the Joint Committee, and I am grateful to my hon. Friend the Member for Blackpool, North and Fleetwood (Mrs. Humble) for what she has had to say and for her continuing work on ensuring that the safeguards are appropriate. Indeed, she referred to the letter that she wrote to Lord Filkin in that respect.

We recognise that making a decision in advance is not the same as a making a contemporaneous decision. A decision in advance must stand the test of time, and if it is to be respected we must ensure that it passes the test of being valid and applicable to the treatment in question. The Bill codifies and clarifies current common law rules, but it also provides and bolsters the appropriate safeguards. For the first time, those safeguards can be clearly expressed in statute and no longer left to less clear, or poorly understood, common law on advance decisions and treatment. Doctors and patients alike can feel more confident that people's

autonomy will be respected, and that treatment should continue when there is doubt about validity and applicability of an advance decision.

The person must have capacity when making an advance decision. Clause 24(1) makes that perfectly clear, notwithstanding what I have said about the effect of clause 3. The advance decision comes into play only if the person lacks capacity to give or refuse consent to the treatment in question. When someone has capacity to give contemporaneous consent, it is that contemporaneous view that counts. What the person feels in the present, not what they may have felt previously, counts. That is an important safeguard. In addition, under subsection (1)(a) the decision must be specific to the treatment in question and will not apply to life-sustaining treatment unless, under clause 25(5), that has been specified. It can be withdrawn or altered at any time under clause 24(3)—again, notwithstanding what I have said—and under subsection (1). It must be clear that the advance decision represents the person's fixed decision: if the person is wavering or behaving in a way inconsistent with the advance decision—clause 25(2)(c) is relevant—it will be invalid.

As a result of lobbying by the Roman Catholic Church and the Anglican Communion, the decision must be applicable in the circumstances. If circumstances exist that the person did not anticipate when they made the decision and they would have led the person to a different decision, the decision becomes inapplicable under clause 25(4). I discussed with a doctor what would happen if someone with Alzheimer's or impending Alzheimer's who had made an advance decision subsequently become a grandparent, showed during a visit by grandchildren or others some recollection that suggested unhappiness with the previous decision. If—I am now moving on to clause 26—a doctor is not satisfied, the advance decision is not applicable.

As for whether the Bill is tipped in favour of preserving life—which is very important, because, of course, advance decisions may relate to the end of life—we have set very high standards. I am sure that hon. Members agree that the balance should be tipped in favour of preserving the gift of human life. Under clause 26(2) if a doctor is not satisfied that a valid and applicable advance decision has been made, he can lawfully provide treatment. Legally, not being satisfied is a test of a very high standard. That doctor can simply say, ''I am not satisfied. I have heard everything and I am sorry, but you will continue to live.''

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

I am anxious not to interrupt the Minister's argument, but, if a doctor were confronted with such a dilemma, and had doubts about the validity of an advance decision, would not it be better all round if the whole thing were tied down by a clear certificate, witnessed by an independent person, along the lines that some of us have suggested, so that there would be no doubt? I concede that the doctor would have to take into account intervening circumstances that might be relevant.

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

I shall deal with that. We do not want to tie doctors' hands in the event of an emergency. There will be circumstances in which things are scribbled on a doctor's notes because someone who is on a trolley going into the operating theatre says, ''Look, this is how I feel about X.'' In such cases, the steps in the Bill become very important, particularly where doctors, carers and family have been with that person for some time and the condition is known, but then the event of the operation occurs.

Mr Tom Clarke (Coatbridge & Chryston, Labour)

Without anticipating, because you would rightly not allow me to do so, Mr. Cran, may I draw my hon. Friend the Minister's attention to the debates that we will have on the vital importance to this issue of independent advocacy?

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

My right hon. Friend will know that there is a correlation there. For those who are unbefriended, having a person to assist with those decisions is very important. We will come on to that.

Clause 26(2) and (3) provide that if a doctor is not satisfied that a valid and applicable advance decision exists he can go ahead and treat without fear of liability. A doctor who is satisfied that a valid and applicable advance decision exists but treats anyway may face liability for damages for tort or battery from the person refusing the treatment, and criminal liability for assault.

The clause clearly weighs in favour of preserving life. To withhold treatment, a doctor must have a reasonable belief that the advance decision is ''valid and applicable''. The Committee has discussed what reasonable belief amounts to; it is an objective standard.

When hon. Members talk about this matter, they rightly refer to very difficult decisions that end up in court. Under this Bill, such decisions will still end up in court. There will be difficult and emotional circumstances, as well as disagreements that end up in the new Court of Protection, but clause 26(5) provides that action may be taken to prevent the death of the person concerned, or a serious deterioration in their condition, while any doubt or dispute about an advance decision is being resolved in court. Therefore, there is a further safeguard if things are getting complicated.

We will also stress the importance of people taking the opportunity to discuss their situation with their doctor to ensure that they are fully aware of their treatment options and all the other possible options. That is dealt with in paragraph 8.19 of the code of practice. Paragraph 8.18 stresses the benefits of recording an advance decision in writing and getting it independently witnessed. Paragraphs 8.18 and 8.19 also state that an advance decision should be reviewed and kept up to date.

This is a draft code of practice, and we welcome hon. Members' contributions to it and discussions about it. My hon. Friend the Member for Blackpool, North and Fleetwood asked a question and, in response, I refer the Committee to the effect of clause 40. The code is not discretionary.

Clause 40(1)(e) provides that the Lord Chancellor must prepare and issue a code of practice, specifically with respect to clauses 24 and 26. Clause 40(4) makes it a duty of a professional person

''acting in relation to a person who lacks capacity''

to have regard to that code. Therefore, in this area the code is very definitely an important obligation that professionals have to take into consideration.

The provisions on advance decisions have developed a good deal since the draft Bill.

Ms Claire Curtis-Thomas (Crosby, Labour)

I am listening to the Minister's remarks, and I would be grateful if he responded to an inquiry. He has talked about the contributions that doctors make when considering whether to take into account a legally binding advance directive. If his arguments are so strong for a doctor's involvement in such considerations then, why does he not accept the argument in favour of involving doctors in the preparation of legally binding advance directives to try to minimise the ambiguity and uncertainty that arise once such directives come to the attention of a doctor responsible for the health of the incapacitated individual?

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

I refer my hon. Friend to paragraph 8.19 of the draft code, which states that people should ''take the time'' to discuss their health care with their doctors and that that will show known treatment options and the consequences of advance decisions. That is clear in the code.

Ms Claire Curtis-Thomas (Crosby, Labour)

But the code is not a statutory obligation. It puts forward a desirable set of practices that will not necessarily be applicable to everyone, known by everyone or implemented by everyone who may wish to express an advance directive.

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

I have talked about the effect of the code and the obligations under clause 40. I thought I had made my remarks perfectly clear. The code is important, but, notwithstanding that, it is important that we allow for situations in which someone, who did not lack capacity, is on the trolley in the latter stages. Those around that person could hear and understand their advance decision. As I have explained, one could not make an advance decision if one lacked capacity. On that basis, the people around could ensure that the decision was valid and applicable, and they would be able to put into play that person's desire as an autonomous individual who was able to determine how they wished to be treated in those difficult circumstances.

The hon. Member for Daventry proposes in amendment No. 36 that if a person making an advance decision uses any layman's terms—for example, to describe a treatment or circumstance—that make the decision uncertain, that decision would automatically become void. I fully agree that a doctor should not follow an advance decision if it is uncertain whether it is valid and applicable.

Mr. Boswell indicated assent.

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

I see the hon. Gentleman nodding; he has heard much that I have said about the issue. He has already talked about the use of plain English in the code of practice. Surely the same must apply to

advance decisions. I am sure that the person on the street and all of us here are much more likely to talk about a heart bypass operation than about a coronary artery bypass graft. The key is that an advance decision should be sufficiently specific and should pass the test of validity and applicability. I have taken the hon. Gentleman through that and I hope he will be able to withdraw his amendment.

The hon. Members for Daventry, for Sutton and Cheam and for Chesterfield tabled two further amendments on advance decisions. Amendment No. 37 would have the effect of stating in clause 24 that, to be valid, an advance decision must be

''made in writing and witnessed by one independent person of standing, except in case of urgent necessity''.

Amendment No. 102 would require that advance statements should

''normally be recorded in writing and witnessed by a third party.''

I shall deal with the amendments together.

I appreciate the principles that underpin these proposals—of course it is important to provide protection and clarity for those who wish to make advance decisions and for those health care professionals who are going to be faced with them. Although I share those concerns, I do not feel that a requirement for advance decisions to be written and witnessed is necessary. We have carefully considered the issue in light of the Joint Committee's report. The Bill does not contain any formal requirements on the format of an advance decision, because both written and oral decisions are capable of being legally effected at common law now.

If the House chose not to make oral decisions possible under such circumstances, that would be a serious decision. As I have said, some oral decisions are made in hospital—for example, shortly before an operation. Such a decision might be recorded in the medical notes and it would be wrong to say that that could not count. Although many advance decisions may be in writing, the current common law position—that people can make advance decisions orally—will be retained. For example, a woman might decide immediately before an operation that she had a strong preference that her ovaries and womb should not removed, which would constitute an advance decision. The provisions are specific enough to prevent that.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

Would that be regardless of whatever the surgeon found once that woman was opened up?

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

It might be that the surgeon felt that circumstances had changed. Therefore, he might not be satisfied that the advance decision was valid and applicable.

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

On the question of oral statements and written statements, I listened to the Minister carefully. Does he not accept that amendment No. 102 would not exclude oral statements? It would simply shift the emphasis in favour of written statements. The proposal is that advance statements would ''normally'' be written, so oral statements would still be possible. The intention is to create an impetus—a legal framework—to encourage doctors, patients and

others making advance directives to look to making a written will. Also, will he address the point about the third, independent witness?

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

I hope to come on to that. I have said much about what is in the code, and in a sense what the hon. Gentleman talked about being in the Bill is in the code. I have talked about the effect of the code under the Bill.

I assure hon. Members that including oral decisions does not mean that any casual statement would count as an advance decision. There would be a world of difference between someone remarking casually to a friend that they would never like to be kept alive artificially and someone with Alzheimer's discussing with a doctor charged with their care how they might expect the condition to progress and making an oral decision to refuse certain interventions as their condition worsens. I assure the hon. Gentleman of that, particularly given his personal circumstance.

I remind the Committee that the Bill requires tough tests to be passed if an advance decision is to apply. The decision must be specific and made with capacity to be valid and applicable to the treatment in question. Where there is any doubt, a clinician can safely treat someone and receive protection from liability for a claim for damages, tort, criminal liability or assault. I appreciate the hon. Gentleman's concern and agree that advance decisions should be clear, considered and unambiguous. The intention is for the safeguards of validity and applicability to ensure that. We also intend the code of practice and future guidance to stress the importance of making the contents of the advance decision as clear as possible.

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

Will the Minister give way?

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

I want to deal with properly with the amendments, so I will not.

Amendment No. 37 refers to an ''independent person of standing'', who, the hon. Member for Daventry suggested, would act as a witness. The key is flexibility. The making of an advance decision is a personal choice; it is therefore only right that the format of the advance decision should also be a personal choice. The key is that an advance decision should be valid and applicable to the treatment in question.

Amendment No. 215, which my hon. Friend the Member for Crosby tabled, would ensure than an advance decision would not be valid if the maker could not prove that he was not suicidal when it was made. The aim of the amendment is to prevent suicidally motivated advance decisions from being effected. I completely understand those concerns.

We have worked closely with the Catholic Church and others in improving the draft Bill, which has also benefited from the Joint Committee's work. Clause 58 puts beyond doubt the fact that the Bill does not change the law relating to murder, manslaughter or assisted suicide. Of course the Government do not want to promote mechanisms that facilitate suicide. People who are suicidally motivated need support and

care. The Committee has already agreed that we all share the same aim of promoting life and protecting vulnerable adults.

Archbishop Peter Smith's briefing note on the Bill, which he prepared in July, says:

''It is not the Church's position that life must be sustained at all costs. On the contrary, one can quite reasonably, and consistently with one's responsibilities for oneself and others, decide to refuse treatment—even life-sustaining treatment—which one judges burdensome or futile, knowing that forgoing that treatment will shorten one's life. Such a decision is not suicidal, even in those cases where an outside observer, not being privy to the deliberations which (however rapidly and informally) preceded the decision, might be unable to distinguish it from a suicidal decision''.

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

Will the Minister tell me simply whether it is the case that if a person were making, or seeking to make, an advance decision when they were suicidal, even if it were not precisely about the circumstances in which they tried to kill themselves—I exclude the possibility that a third party might do that—clause 3 means that they would be unable validly to make such a decision, so it would fall?

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

I agree entirely with the hon. Gentleman. That is why I hope that the amendment will be withdrawn.

I turn to amendment No. 216, under which an advance decision would not be effective if the maker were not made aware of its consequences when it was made. I reiterate that I fully appreciate the principles that underpin this amendment: of course, it is important to ensure that the maker not only understands the decision's importance and consequences, but is aware that feelings and circumstances change over time.

Clearly, my hon. Friend the Member for Crosby tabled this amendment because she is worried that someone in good health will find it hard fully to understand the consequences of their advance decision. On Second Reading, she talked about her mother. However, we return to the fact that advance decisions are a matter of personal choice. It is important that people who make advance decisions understand the importance and consequences of such decisions. They must make informed choices about their options. Therefore, we want them first to gather as much information as possible about the treatment options available and the possible consequences of their decisions; we recommend that in the guidance. We are keen to engage on the guidance if there are areas in which it could be further strengthened.

Ann Winterton (Congleton, Conservative)

In giving that advice, will it be pointed out to the person who wishes to make an advance directive that treatment includes basic care such as hydration and nutrition, however delivered? That is important because when people talk about treatment, they often do not realise that, under the Government's definition, it includes basic care.

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

I do not want to confuse, as the hon. Lady did—

Ann Winterton (Congleton, Conservative)

I want to clarify it.

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

I do not want to confuse the clear guidance that the hon. Lady knows comes from case

law on the distinction between what is basic care and what is treatment. Of course basic care must continue. We have heard about wiping someone's mouth when they need hydration and other things, but it must be for doctors to make important determinations towards the end of people's lives.

I appreciate the personal concerns for vulnerable people that have led my hon. Friends to table these amendments. With amendment No. 241, the hon. Member for Daventry proposes that clause 24, which concerns advance decisions to refuse treatment, be amended to allow advance statements to incorporate requests for specified treatments. He knows that we are considering the important Burke judgment, but the General Medical Council seeks to appeal against it and it is right that we let that process take its course. That also applies to clause 4 and to new clause 1, which was tabled by the hon. Members for Sutton and Cheam and for Chesterfield.

It was important to take members of the Committee through clauses 24 to 26. We have put in the safeguards. Let us continue to discuss the code of practice, but clearly we must protect vulnerable people while allowing people their personal autonomy. On that basis, I hope hon. Members feel able not to press their amendments.

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

Within the limitations of the time scale, we have had a good discussion. The Minister is clearly in code territory, in response to the valid concerns expressed across the Committee about the effects of the clauses and the appropriate safeguards. We are beginning to reach an approximation of a view, but in relation to this and the subsequent group of amendments, which I am not minded to move, we should reflect on what he has said and come back at a later stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

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

I am conscious of the time, but I want to speak briefly about the clause. We have had a useful discussion so far, and I listened carefully to the Minister's assurances on the group of amendments that we have just discussed. My hon. Friend the Member for Chesterfield and I felt that in discussing how the clause operates—providing for an advance direction to refuse treatment—it had not been made entirely clear how the Government had come to the conclusion that it would not be possible to extend the scope to include matters that pertain to giving directions as to treatment people would like.

I hope that the Minister might find some time to give a clearer explanation of why the Government do

not feel that the clause could be extended in such a way. As it stands, the drafting does not adequately address my concerns. There is still concern, although the Joint Committee looked at the matter in some detail. I shall give way to the Minister, who is indicating that he wants to intervene.

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

One can already make that decision at common law. That is the important thing. Clause 4(5) ensures that doctors have to consider someone's wishes and feelings, as we have discussed. Writing them down clearly puts that beyond doubt. I have stated here and on Second Reading that we have an important judgment in the form of Burke. That judgment has been taken to the Court of Appeal by the GMC and it is right that we look at that judgment in its entirety when a conclusion is reached. However, one can make such decisions now.

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

I am grateful to the Minister for that, but the reality is that there are two ways of making law. This place is one of the ways in which we make law. If one accepts the argument that this is already a matter for common law, we do not need any of these clauses because common law already deals with advance decisions to refuse treatment. I cannot buy the argument that common law is advancing and evolving, so we do not need to encompass the issue of written direction in terms of treatment.

I also fear that the Minister has prayed in aid the Joint Committee's report on a number of occasions during our deliberations. That report is an important examination of the draft Bill and the Committee spent considerable time on its questioning of witnesses on the issue of advance directions, but it came to clear conclusions that have not been encompassed in the Bill or the clause. For that reason, I want to raise my concern that at the end of this we will have a clause and a Bill that have not been improved and do not address my concerns or those of my hon. Friend. As a result, this process will not have a satisfactory outcome.

It being twenty-five minutes past Eleven o'clock, The Chairman proceeded, pursuant to Sessional Order D [6 November 2003] and the Order of the Committee [19 October], as amended, [26 October], to put forthwith the Question already proposed from the Chair.

Question agreed to.

Clause 24 ordered to stand part of the Bill.

The Chairman then proceeded to put forthwith the Questions necessary to dispose of the business to be concluded at that time.

Clauses 25 to 27 ordered to stand part of the Bill.

Adjourned till this day at half-past Two o'clock.