Clause 24 - Advance decisions to refuse treatment: general
Mental Capacity Bill
11:00 am
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.