Clause 31 - Requirements for approval
Mental Capacity Bill
9:30 am
Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)
I am grateful to the right hon. Member for Rother Valley (Mr. Barron) for raising these issues, which he does both of his own cognisance and on behalf of the GMC. The issues he raises go to the heart of concerns expressed in earlier debates, which I do not need to rehearse.
To make an obvious but important statement, the Bill sets out provisions for research and is designed to provide some boundaries beyond which that research should not take place. In fairness, and remembering earlier discussions about research ethics committees and so on, and the oaths taken and personal moral judgments made by members of the medical profession, I ought to say that there are, of course, limits on the process. We have discussed the inappropriateness of, among other things, carrying out research that has no connection with the person involved or their condition but has to do with something completely other, or research that is likely to cause them serious pain or distress. Both are ruled out, and so they should be—that is not the issue.
The right hon. Gentleman is right to raise the issues and say, with great respect to the Minister, that we probably will not resolve them today. Further reflections and discussions, and perhaps deliberations in another place, will be required before they are hammered out. He is right to raise them in relation to acts that are connected with the condition but not actually the condition itself—I have some sympathy with his points on that—and in relation to research that is not demonstrably for the benefit of the patient. I touched on that earlier.
Interestingly, the word ''benefit'', which is drawn from parallel Scottish legislation, as the right hon. Member for Coatbridge and Chryston (Mr. Clarke) reminds the Committee, is introduced at this point in the Bill but does not appear elsewhere. I said the other day—it remains my view—that there is concern about the overall application of the best interests principle in clause 1 to this clause. One has to stretch the principle, which has to be very elastic, to encompass all situations now. We have to think long and hard about whether we need to set boundaries.
Subsection (4)(a) talks about
''the potential to benefit P without imposing . . . a burden that is disproportionate''.
That is a reasonable test, which is why I did not seek to exclude it through my amendment. However, it is made clear in subsection (5) that that test in subsection (4)(b) would be different. Research that passed that test would not be a subset of something that might benefit P—in fact, it is implied that it would not benefit P. In effect, subsection (5) states that if such a test will not benefit P, we have to make sure that it will not damage P. That brings me on to what I have called neutral acts—acts that do not help the person who has lost mental capacity, but are somehow related to their condition and might benefit a class of people in the
future. That employs a wide interpretation of the best interests clause. We need to watch carefully and establish whether we need to tie the matter down further, either with language, or, as the right hon. Gentleman suggested, with an independent umpire who could rule on behalf of the court if necessary. That would be a reasonable test.
The right hon. Gentleman also raised the issue of blood tests. I am not clear about whether a blood sample or part of one taken for one purpose in connection with the treatment of the person, P, could be diverted to another purpose. Will the Minister clarify that?