Clause 35 - Duty to seek advice in connection with serious medical treatment
Mental Capacity Bill
5:30 pm
Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)
There are several differences between new clause 23 and clause 35. I have already said why we do not want to change ''consultee'' to ''advocate''. The new clause also focuses on making representations. I understand why my right hon. Friend the Member for Coatbridge and Chryston proposes that; he wants to ensure that the incapacitated person's wishes and feelings, beliefs and values are the key factors when making decisions about serious treatment. Again, I refer my right hon. Friend to our amendments on that question, which clarify the role of the independent consultee.
Another difference between the new clause and the Bill is the review of ongoing treatment. The new clause would require review of ongoing treatment by an independent advocate if, because of its urgency, he had not been involved in the initial decision. We have not included such a provision because we want the Bill to set a clearly defined point at which the statutory duty of the decision maker to consult the independent consultee should apply. However, as part of our consultation on developing regulations linked to clause 39(1), we intend to consider the functions of the independent consultee, which will include considering whether his role should include reviewing ongoing
decisions taken in an emergency without involving the independent consultee. I can give my right hon. Friend that assurance.
The new clause would legislate for the regulations on medical treatment to be split into three categories. We do not want to specify that decisions on certain treatments should always go to the court. It would be needlessly bureaucratic to require decisions to go to court when everyone agrees, and it would not be helpful to create a separate category of treatments for which the independent consultee could request a second opinion. As we have just discussed, there is already the best practice of having access to a second medical opinion.
The new clause includes subsections that are identical to amendment No. 176, which we covered in our debate on clause 34. I hope that the reassurances I gave then indicated some safeguards that we believe are already built into the Bill.
I say again that we will widely consult partners outside government on the development of the independent consultee service. I hope that I have been able to reassure my right hon. Friend on the points that he raised through new clause 23 and that he will not press it to a vote.