Clause 32 - Consulting carers etc
Mental Capacity Bill
9:45 am
Mrs Angela Browning (Tiverton and Honiton, Conservative)
I support the amendments to which the right hon. Gentleman has spoken. I have huge reservations about this section of the Bill. I am not totally opposed to people who lack capacity participating in research that benefits a third party, but the question of giving permission, and who gives it and in what circumstances, must be absolutely watertight. I share his concern.
My concern is that all too often the medical profession is terribly gung-ho about research and that sometimes it is difficult for people to feel that they are getting a genuinely independent second opinion. Particularly for the person giving permission, the medical detail and the science behind it might not be fully understood. As a rule, we still tend to take it on trust that what is being suggested is right. That is especially the case when somebody is an in-patient; I am thinking in particular of when P is an in-patient. There are feisty old things like me who always challenge and question, but probably not enough of us do so.
In the medical profession, second opinions have not always necessarily been independent. They have often been based on the old-boy network; people have relied on someone they know to give them an endorsement. Therefore, the Bill should contain checks and balances so that the person acting on P's behalf—whatever the relationship—has the opportunity to ensure that the advice is truly independent.
I support the two amendments tabled by the right hon. Member for Coatbridge and Chryston. They are intended to strengthen this part of the Bill, about which I have grave concerns. I have a horrible nagging feeling in the back of my mind that if we do not get this absolutely right, for all the reasons that have been given we will open the door to situations that we will find unacceptable. We are dealing with somebody who
has lost capacity and with regard to whom any treatment, therapy or invasion will be for somebody else's benefit. That is not a bad thing in principle if we can place our hands on our hearts and honestly say, ''If that person had capacity, they would say yes,'' or, in this case, the person acting on their behalf would say yes.
I want to raise an issue about the next of kin. Often, people lose capacity during their stay in hospital; they may be compos mentis when they go in and then lose capacity while they are an in-patient. When they are admitted, they are asked not about all the detail that we have before us now but, ''Who is your next of kin?'' That is what they write down on a hospital admission form. However, the next of kin may not be the person who will ultimately be consulted under the terms of this legislation. Therefore, it is quite possible that the next of kin may have a view—and, I assume, may still have a legal view—on P, but that they may not be very much involved in this type of decision-making.
The next of kin may be a frail spouse who is unable to visit regularly but still has capacity. They may be in a residential home. That is particularly the case with regard to elderly couples: when one goes into hospital, the other might be in residential care but cannot visit. Legally, they may be the person who should be consulted, but they will not be around.
10 am
I wonder how the hospital would get right the balance between the next of kin whose name had been written on the admission form and some other person who would then appear. If the other person had to appear on P's behalf, it seems only right and proper that they should get the right authority to make decisions, give P's view or sanction things to happen on P's behalf. The issue worries me considerably.