Mr Tom Clarke (Coatbridge & Chryston, Labour)

I beg to move amendment No. 183, in

clause 33, page 19, line 3, at end insert

'or wishes expressed by P in a LPA.'.

The Minister might shorten our proceedings on the amendment by accepting it. However, if she does not, I am sure she will respond carefully to the points that I am about to make. The amendment would be an additional safeguard to the clause in that it recognises the role that an LPA could play alongside an advance decision by setting out P's wishes and feelings about taking part—or not taking part, which is just as important—in particular research. It would ensure that LPAs had parity with other forms of advance decision making about research. I look forward to hearing her response.

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

I support the amendment, which would achieve a helpful further development of the role of LPAs in research. LPAs could be used in such a way because it is up to individuals to decide what they want to stipulate in such procedure. Has the Minister been

persuaded by the representations that all members of the Committee have received from Fiona Randall, a consultant at the Royal Bournemouth and Christchurch hospital? Her helpful letter was referred to in previous sittings. She has made some telling points, particularly on the need for such matters to be clearly documented and for advance statements to be clearly documented and signed. Will the Minister comment on that, especially the fact that such decisions need to be in a written form? The Bill clearly states that LPAs must be in a written form, but, according to representations that we have received, advance statements also need to be in a written form.

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

Again, I sympathise with the concern of my right hon. Friend the Member for Coatbridge and Chryston to ensure that someone's wishes about participating in research that were set out when the person had capacity should be taken into account when that person lacks capacity and certainly before a researcher involved that person in some form of research project. However, I cannot be so accommodating with the amendment as I have been with other proposals. One of the problems with the amendment is that, in some senses, it is unnecessary because clauses 32(2) and (6) make it clear that a researcher must take reasonable steps to identify someone who, other than in a professional capacity or for remuneration, is engaged in caring for P and consult that person on P's participation.

Clause 32(6) makes it clear that that person could be an attorney, which means it is already clear that, if P wished his attorney to be consulted on participation in research, that should happen. The amendment has mistaken the reason for an LPA. In making an LPA, a person is not necessarily setting out his wishes or feelings, but giving another person the authority to make specified decisions on his behalf and to give substitute consent. If someone wished to set out his feelings and wishes about research, an advance statement would be the appropriate place to do that.

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

If someone had appointed a person as his attorney, but at a time when he had capacity and that appointment was included in a deed that specified conditions for research, it would be an advance statement of his intentions. It would be unethical or improper for the attorney to go against those wishes, so the attorney could not make a decision to involve the person in a research project anyway.

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

The Bill makes it clear that an advance decision to say that someone did not want to participate in research has to be respected. It allows for attorneys to be consulted as part of the process, but clearly to give an attorney powers in respect of research, without safeguards, might remove some safeguards from the incapacitated person's participation because the decision would be a substitute decision made as though by a person with capacity. We understand the concern to ensure that an attorney should be fully consulted when appropriate, which relates to our previous discussion. As I said, the

Bill already requires that the attorney should be consulted—a fact that we shall reiterate in further guidance.

As for the point made by the hon. Member for Sutton and Cheam about advance decisions under the Bill, a clause states that the wishes in advance decisions about research must be respected. We want to ensure that there is flexibility for an individual to be able to reflect on what P might have wanted in those circumstances. There is the ability to state wishes and feelings in advance decisions. We want to retain that flexibility, but also to be able to take full account of the wishes and feelings of the individual, although it will not necessarily always be through an LPA that those wishes and feelings are reflected.

I hope that my right hon. Friend the Member for Coatbridge and Chryston accepts our concern that we do not want to bypass some safeguards in the Bill by allowing substitute consent in respect of research. I ask him to withdraw the amendment.

Mr Tom Clarke (Coatbridge & Chryston, Labour)

I am particularly interested in my hon. Friend's definition of the role of attorneys with regard to this aspect of advance decisions and the Committee probably finds her explanation helpful. I realise that the mistake I made when speaking to the amendment was not to say that it was probing. Each time I probed, however, I got something, so I have received a helpful response. In that spirit, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 33 ordered to stand part of the Bill.