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.

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