New Clause 1 — Excluded decisions

Orders of the Day — Mental Capacity Bill – in the House of Commons at 12:38 pm on 14th December 2004.

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'(1) Nothing in this Act permits, authorises or gives validity to any decision made with a purpose of bringing about the death of the person about whose welfare the decision is made.

(2) The provisions of subsection (1) do not apply to—

(a) a decision that a life-sustaining treatment is not to be carried out or continued because it would be unreasonably burdensome to the person; or

(b) the power of the court to make such order concerning the continuance of life-sustaining treatment as it considers to be in the best interests of a person whom it has determined to be irreversibly unconscious.'.—[Mr. Dobbin.]

Brought up, and read the First time.

Photo of Gerald Kaufman Gerald Kaufman Chair, Culture, Media and Sport Committee

On a point of order, Mr. Speaker. The Minister just said in response to my hon. Friend Mr. McNamara that there are new Government amendments. I have the selection list in front of me, and there is not a single starred Government amendment. Are there amendments that we do not know about?

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons, Chair, Speaker's Committee on the Electoral Commission

I say to the right hon. Gentleman that all the amendments are there. My selection of amendments is published, and the House will know about them.

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons, Chair, Speaker's Committee on the Electoral Commission

With this we may consider the following:

New clause 2—Excluded decisions (No. 2)—

'(1) Nothing in this Act authorises the withdrawal of palliative care.

(2) "palliative care" includes the provision of—

(a) relief of pain, suffering and discomfort;

(b) nutrition and hydration, however provided.

(3) The provisions of subsection (1) do not apply to—

(a) a decision that nutrition and hydration is to be discontinued because it would be unreasonably burdensome to the person; or

(b) the power of the court to make such order concerning the continuance of life sustaining treatment as it considers to be in the best interests of a person whom it has determined to be irreversibly unconscious.'.

New clause 4—Palliative care—

'Nothing in this Act authorises the withdrawal of palliative care.'.

Amendment No. 46, in clause 1, page 1, line 16, at end insert—

'(7) An act done, or decision made under this Act by any person acting in a professional capacity, or for remuneration, for or on behalf of a person who lacks capacity must:

(a) not be done in a way that is less favourable than the way in which it would be done or made for, or on behalf of any other person who lacks capacity, or for a person who had capacity, in a comparable situation,

(b) be done without prejudice to the person's age, sex, sexual orientation, disability, religious persuasion, racial origin, cultural and linguistic background and membership of any ethnic group.'.

Government amendments Nos. 3 and 4.

Amendment No. 1, in clause 4, page 2, line 4, at end insert—

'(3A) Where the determination concerns or affects the person's personal welfare, he must consider the person's life and health as basic to that welfare.'.

Amendment No. 45, in page 3, line 3, at end insert—

'(4A) This must include the provision of communication support appropriate to the person, in particular in relation to the matters mentioned in section 4(5).'.

Amendment No. 2, in page 3, line 3, at end insert—

'(4A) He must, where the determination relates to life-sustaining treatment, begin by assuming that it will be in the person's best interests for his life to continue.'.

Government amendment (a) to amendment No. 2, in line 2, leave out 'best'.

Government amendment No. 5, in page 3, line 27, at end insert—

'( ) "Relevant circumstances" are those—

(a) of which the person making the determination is aware, and

(b) which it would be reasonable to regard as relevant.'.

Amendment (a) to Government amendment No. 5, in line 2, after 'determination', insert 'acting with due diligence'.

Government amendments Nos. 37, 38 and 6.

Amendment No. 32, in page 14, line 10, leave out clause 24.

Amendment No. 42, in clause 25, page 15, line 5 at end insert—

'and it was explained to P before reaching his decision that the withdrawal of the treatment in question might include the withdrawal of artificial nutrition and hydration.'.

Government amendment No. 39.

I call Iain Duncan Smith to move new clause 1. [Hon. Members: "Jim Dobbin."] I call Jim Dobbin.

Photo of Jim Dobbin Jim Dobbin Labour/Co-operative, Heywood and Middleton

Thank you, Mr. Speaker.

It is important to say at the beginning that there are several very important amendments that colleagues want to discuss, and time is short. It is therefore important that we get on with the debate and reach as many of those amendments as possible.

Like many hon. Members, I welcome the Bill, which is long overdue and contains many good things that will benefit and protect those in a vulnerable position. As the Minister said, there has been genuine dialogue, which I have been part of, and some welcome changes have been made to the Bill, especially on clause 58, which makes it clear that the Bill does not change the law on murder, manslaughter or assisted suicide. I made that point on Second Reading, and it has been taken up.

Nevertheless, I still have concerns. One danger that needs to be addressed is that clause 58 would inadvertently allow euthanasia by omission. I know that that is not, and never has been, the intention, and that euthanasia forms no part of the Government's policy. That has been made clear in many statements over the last few years. However, if the wording in this area were strengthened, the danger of euthanasia by omission would be averted.

Unamended, the Bill would mean that those making proxy decisions to withdraw or to omit medical treatment could commit euthanasia without infringing clause 58. As it stands, if a proxy instructed a doctor to stop life-sustaining treatment, the doctor could do so with impunity because the purpose of his doing so would be to uphold the law which gives enforcement to the proxy's instructions. Even if the proxy had an unlawful purpose in making a decision to stop life-sustaining treatment, it would not be the proxy's decision that would cause death, but the doctor's action in withdrawing the life-sustaining treatment. Many proxies and decision makers would have been persuaded that because of the patient's feelings and values, death would be in the patient's best interests. They would argue that the lawful purpose of bringing about death by omission should be pursued. At present, under this jurisdiction only a court makes that decision and it is made only in rare and exceptional circumstances.

Unfortunately, if unamended, the Bill would allow proxies and decision makers to withhold life-sustaining treatment, including food and fluid, and in numerous circumstances. That would not be a problem if all decision makers and proxies were influenced by the purest motives and sought only the patient's best interests, but we know that in some cases the motive of proxies may be their own self-interest. What is best for the patient could be replaced by what is best for the proxy. A doctor does not have to challenge the proxy's decision in court if he or she feels that the withdrawal of life-sustaining treatment is not in the patient's best interests: who then is going to protect the patient? If we adopt new clause 1, doctors will be able to resist a proxy if they think, in their clinical judgment, that continuing treatment would be in the patient's best interests.

Photo of Mr Kevin McNamara Mr Kevin McNamara Labour, Kingston upon Hull North

My hon. Friend will be aware of the statement made by the noble Baroness Warnock over the weekend in which she urged people going into homes to consider the financial implications for their relatives. Would not this be the start of a slippery slope towards the impure motives that attorneys or personal representatives might have, and to which my hon. Friend alluded? Did not the Baroness inadvertently do us all a favour by saying what the true interests of many people may be?

Photo of Jim Dobbin Jim Dobbin Labour/Co-operative, Heywood and Middleton

Yes, I heard Baroness Warnock commenting on the matter on television. Those implications are the reason for tabling new clause 1, which would enable doctors to resist a proxy if, in their clinical judgment, they believed that continuing treatment would be in the patient's best interests. It would also allow doctors to withdraw treatment that is "unreasonably burdensome" to the patient. I hope that that shows that new clause 1 would not change existing law.

Photo of Chris Bryant Chris Bryant Labour, Rhondda 12:45 pm, 14th December 2004

I believe that I am as opposed as my hon. Friend to euthanasia. However, what precisely does he mean by the phrase "unreasonably burdensome", which appears in new clauses 1 and 2?

Photo of Jim Dobbin Jim Dobbin Labour/Co-operative, Heywood and Middleton

We do not want to subject the patient to undue hardship or pain—that is what "unreasonably burdensome" means.

New clause 1 would not change existing law.

Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green

There is another aspect to "unreasonably burdensome". Let us take the case of someone in their last days who is likely to die and finds it uncomfortable to be fed or receive fluids. The new clause would allow withholding in those specific circumstances so that there would not be court cases or judgments against anyone. That covers one cause for concern.

Photo of Jim Dobbin Jim Dobbin Labour/Co-operative, Heywood and Middleton

The right hon. Gentleman clarifies my comments.

The purpose of the new clause is to prevent the extension of the law to proxies and its widening to other circumstances that were not established in the original judgment. I am convinced that that is not the Government's intention, but that will be the effect if the Bill goes through without amendment. We need to close the loophole.

Photo of Frank Field Frank Field Labour, Birkenhead

My hon. Friend says that widening the law is not the Government's intention. Would it not help all hon. Members if the Government clearly stated that, by medical support, they do not mean food and liquids?

Photo of Jim Dobbin Jim Dobbin Labour/Co-operative, Heywood and Middleton

I agree with my right hon. Friend. That has been part of the discussion in the past year or so. We are anxious for those words to appear in the Bill.

Photo of Angela Browning Angela Browning Vice-Chair, Conservative Party

The hon. Gentleman knows that, on Second Reading and in our deliberations in Committee, the Under-Secretary was repeatedly asked to confirm or deny that the word "treatment" in the Bill included nutrition and fluid. He failed to do that. If he did that today, there would be much greater clarity in the debate.

Photo of Jim Dobbin Jim Dobbin Labour/Co-operative, Heywood and Middleton

I hope that my hon. Friend the Under-Secretary has listened to the hon. Lady's comments.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

In the past few weeks, we have examined the specific difficulty that, although food, fluid and palliative care for someone in their dying stages is vital and doctors and nurses would fail in their duty if they did not offer comfort, especially through moistening the mouth, we all know old people who do not want tubes and feeding in those last days. Those people can make an advance decision that they do not want to be fed by tube. That is the central issue.

Photo of Jim Dobbin Jim Dobbin Labour/Co-operative, Heywood and Middleton

That is a totally different matter.

We need to establish clearly and unambiguously that proxies and decision makers are not authorised to make decisions with the purpose of bringing about the death of the patient.

Photo of Claire Curtis-Thomas Claire Curtis-Thomas Labour, Crosby

My hon. Friend has heard the views of my hon. Friend the Under-Secretary, who implied that the new clause is about imposing burdensome treatments on individuals at the end of their lives. Will my hon. Friend take the opportunity to restate that the new clause would not impose burdensome treatment but ensure that people who are comfortable in their condition receive hydration and nutrition rather than being starved to death or left to die of hunger?

Photo of Jim Dobbin Jim Dobbin Labour/Co-operative, Heywood and Middleton

My hon. Friend is right that the new clause deals with that.

Although the Shipman case was exceptional, it shows how the unscrupulous can misuse a position of trust. The aim of the Bill is to provide security and sound legislation to protect the vulnerable. The intention is to benefit those who are not in a position to look after themselves. It is up to us to ensure that the wording is not detrimental to those whom we are trying to protect.

I stress that new clause 1 is not designed to overturn the Bland judgment, but I accept that there has been concern that it might. It is a declaratory provision and does not create any new criminal offence or civil wrong. If it did, it could be argued that it seeks to overturn the Bland judgment. However, that is not so. It is a declaratory provision that makes it clear that provisions with the purpose of causing death have no place in the Bill. New clause 2 (2) expressly reserves the power of the court to make decisions on withholding or withdrawing life-sustaining treatment, which is an important safeguard against the exercise of unscrupulous motives. We have not tabled new clauses 1 and 2 because we are vitalists and seek to preserve life at all costs. It is right that we should limit medical care where it will not work, where it is futile or when it is burdensome. Having worked in the health service for more than 33 years, I accept that that is done regularly in clinical practice.

It is, however, an entirely different matter to require that treatment and/or assisted food and fluid be withdrawn or withheld from patients who are not dying. If unamended, the Bill would allow that in certain circumstances. We are trying to protect the most vulnerable people. The question should always be, "Is the treatment worth while?"

Photo of Frank Field Frank Field Labour, Birkenhead

I am grateful to my hon. Friend for allowing me to emphasise that those of us who are worried about this will support his amendments if necessary in the Lobby. His aim is not to keep people alive at all costs. We want people to die well, and we should not strive officiously to keep them alive when they are dying. However, we do not want to bop people off when they have quite a lot of life ahead of them. That is the emphasis of new clauses 1 and 2. If we do not receive a satisfactory response from the Minister, we should support my hon. Friend in the Lobby this afternoon.

Photo of Jim Dobbin Jim Dobbin Labour/Co-operative, Heywood and Middleton

I agree.

I shall conclude, because many Members wish to take part in the debate. For the record, I would like to make the purpose of new clause 1 crystal clear. In The Times today, my hon. Friend Mr. Howarth said that new clause 1 would leave doctors with no alternative but to keep people alive as long as possible. That is categorically not true. New clause 1 allows life-sustaining treatment, including assisted food and fluid, to be withdrawn in cases where it is futile or burdensome and where doing so would not interfere with good palliative care.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

Does my hon. Friend accept the advice of many oncologists or cancer specialists that some cancerous tumours are fed by artificial nutrition and hydration, and thus hasten death?

Photo of Jim Dobbin Jim Dobbin Labour/Co-operative, Heywood and Middleton

The Minister has raised that issue with me in the past, but I do not agree with him.

Photo of Angela Browning Angela Browning Vice-Chair, Conservative Party

In the cases that the Minister mentioned, where a tumour is at an advanced stage and hydration and nutrition are withdrawn, inevitably, painkilling drugs have to be increased. As a result, the patient is unable to take sustenance through the mouth, but carers must still make sure that in their dying hours that they have moisture around the mouth. It is incredibly uncomfortable not to have hydration, even if it is not swallowed down.

Photo of Jim Dobbin Jim Dobbin Labour/Co-operative, Heywood and Middleton

The hon. Lady makes the point very clearly.

I have spoken long enough on this issue because, as I have said, there are other important amendments to be discussed.

Photo of Claire Curtis-Thomas Claire Curtis-Thomas Labour, Crosby

My hon. Friend will have heard the Minister, who again implied that people would be forced to take hydration and food when it was blatantly obvious that that would be burdensome for them. Will my hon. Friend take the opportunity once again to assert that we would like people to receive hydration and nutrition, but not when it is burdensome for them?

Photo of Jim Dobbin Jim Dobbin Labour/Co-operative, Heywood and Middleton

I have made that point a number of times, and I am grateful to my hon. Friend for reiterating it.

Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green

I support new clauses 1 and 2. Jim Dobbin has set out a strong, factual case as to why the Government should support our proposal. I shall concentrate on only one thing, because there is a tendency to overcomplicate the issue. This group of amendments is at the heart of our debate today and we should consider whether or not, at the end of it all, we should withdraw food or fluids from people who would otherwise live. That is the critical point. The problem with the Bill is that it would give powerful legal backing to a certain interpretation of living wills. By the way, many Members may not know that a living will does not have to be a written document, and could result from a general conversation while watching a television programme which, like one shown in the United States, graphically depicts what happens to people who are in pain later in life. Someone might say to someone else, "Look, you are going to be my advocate. I do not want to be kept alive unnecessarily, and I do not want medical intervention to keep me alive." When the individual is incapacitated, their advocate can say that they made it clear that they did not want any medical intervention. However, the individual concerned would not have said that they wanted food and water, the most natural form of treatment, to be withheld. That is at the heart of our proposals which, as the hon. Member for Heywood and Middleton said, do not aim to overturn the Bland judgment.

To make my position clear, I think that the Bland judgment was wrong. I have tabled amendments proposing that Parliament should make such decisions and not leave them to the courts. Why, after all, are we elected to the House if not to represent the interests of our constituents and make these decisions on their behalf, having discussed the matter with them? However, I am prepared to compromise, and I support new clauses 1 and 2, which will not reverse the Bland judgment, much as I would have liked them to do so. They make it clear that we should find in favour of life—that is the critical issue. Some people have asked for a definition of "burdensome". At the moment, however, the priorities are the other way round, and under the Bill it would be easy to withdraw food and fluids from an individual.

Doctors and nurses in other parts of the world often disagree with the advocate's judgment. Some of them say that they can communicate with the individual, but their arguments have failed in court. That is the problem with the Bill, which removes the opportunity to reconsider what happens to a loved one. If the person concerned is conscious, even briefly, it prevents them from making a final judgment. That is the key issue. Many hon. Members on both sides of the House will agree that Mrs. Curtis-Thomas spoke movingly about her experience when her mother died. If they have not already done so, I recommend that they read her speech, which makes it clear that we should make a judgment in favour of life. If we persistently confuse medical treatment with administering food and water, we will find against life.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

Does the right hon. Gentleman accept that people can make a living will under common law, and that the Bill provides the safeguards that doctors have been calling for when making those advanced decisions? Does he accept that that is why Age Concern, Help the Aged and the Alzheimer's Society have asked for such legislation?

Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green

With respect, we have been through that many times. People are not against the principle of clarifying the position on living wills. However, new clause 1 deals with the problem that food and fluids are deemed to be medical treatment by the courts. Someone who specifies the withdrawal of medical treatment or tells someone else that that is what they want is unlikely to mean that they wish to be starved or dehydrated to death. That is the problem at the heart of the bill.

Photo of Claire Ward Claire Ward PPS (Rt Hon John Hutton, Minister of State), Department of Health 1:00 pm, 14th December 2004

I am listening carefully to what the right hon. Gentleman is saying. He makes the point that he does not agree with the Bland judgment. I agree with it, although, at the other end of the scale, I do not agree, under any circumstances, with euthanasia. He is essentially arguing against Bland, which makes things difficult as it is confusing the issue surrounding new clause 1. I find that extremely difficult, since he does not agree with the Bland judgment, yet he is arguing the case for new clause 1.

Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green

The hon. Lady says that she does not agree with euthanasia, but what is being done to someone in terms of bringing about their death when food and fluids are withdrawn? I do not understand this ludicrous debate—dancing on the head of a pin—about what happens to somebody: if I stop someone eating and drinking, they will die and I would be assisting them to die. That, in essence, is euthanasia.

I have said all along that I do not necessarily agree with how the Bland judgment has classified food and water as medical treatment, but I am prepared to accept that we should not overturn it through the Bill. I am saying that the declaratory position would change the emphasis and move the question to whether a treatment is worth while, which is what we should be asking, rather than whether a patient's life is worth while, as will be the case under the Bill. That is a fundamental difference, that is what the new clauses would do and that is what I am prepared to accept.

Photo of Frank Field Frank Field Labour, Birkenhead

Does the right hon. Gentleman accept that we are not discussing the Bland judgment? That comes later, but it is important to make that clear. My hon. Friend the Minister has trotted out Age Concern and all those other great organisations, but how many of their representatives have living wills? The vast majority of our constituents do not have living wills in any form, written or unwritten.

In considering the Bill, we are dealing with those who are incapable of making a judgment. What should the legal framework be to protect their interest? That is the judgment we have to make, but not for those of us who have decided that we want to go out of this world in a certain way. There is a case for debating that issue in respect of living wills and for honestly debating euthanasia, but there is no case for having euthanasia by the back door—withdrawing food and liquids from people when we are professing to do something else.

Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green

I agree: that is where we are and what I began with in speaking in support of the new clause. I genuinely cannot understand why any Member of the House would not support the new clause, because as has just been made clear and as I made clear earlier, this does not deal with the Bland judgment. It would make it clear, should these issues go to court, that the favour rests on whether a treatment is worth while. That is what the two new clauses address and I do not consider this such a radical move. It would be a fair decision that took into consideration concerns that the Minister raised in Committee, I gather, and on Second Reading. It would do no Member any harm to vote for the new clause, because it would help to reshape the Bill with regard to the issues that all those charities referred to.

I accept it from the Minister that there are many who want the Bill. I have said that a large chunk of it is welcome, but this area leaves it very open to challenge.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre

Can the right hon. Gentleman assure me that his new clauses are so well drafted that they would not allow circumstances in which someone moving inevitably towards a dignified and peaceful death was disturbed by unnecessary and uncomfortable medical treatment?

Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green

I can give the hon. Gentleman the assurance of a non-lawyer and of someone who, I hope, comes to the House with a certain amount of common sense. These new clauses were drafted so that that could not happen. If the Government think that areas of the new clauses would cause a problem, please come forward and help us to redraft them. Let us do that right now and vote on them, but they will not do that, as they seem almost scared stiff of any amendment to the Bill. We heard from Sir Gerald Kaufman, who said that Members of the House were all promised that amendments would be tabled. No such serious amendments have been tabled. The reason is that the Government do not want this area to be dealt with at all.

I simply say to hon. and right hon. Members in all parts of the House that we have in front of us today a very serious question: do we make a presumption for life or a presumption that, in some circumstances an individual may have their life ended, and assisted to be ended, by doctors and others who might be against such a presumption for life?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

The right hon. Gentleman frames his contribution around the advance decision as it pertains to new clause 1. Does he accept that the advance decision is exceptional in the Bill, as most of it concerns best interests? In dealing with the individual's right when he has capacity to say, "One day, when I no longer have capacity, I do not want this kind of treatment," we are not dealing with best interests in that regard. Also, quite rightly, we say at clause 25(5) that the person should be specific when life-sustaining treatment is involved. That is an important hurdle and something that we should all take seriously.

Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green

So presumably, the Minister is going to move an amendment that will result in all these living wills being written down and legally checked. Is he going to move such an amendment right now? No, although I will give way to him if he wants to tell me that that is the case. He knows very well that he will not, so let us not have this stupid and silly game in the House. The fact is that he knows that had he said to many of his colleagues that this would be written down and regularly checked, there might have been a reasonable debate on this matter.

I do not know why the Government are playing this game. Someone might have said such a thing to another person five or six years previously, but are we presuming that they never thought about it again and that their mind did not change over that period? Of course not. The Minister knows very well that, as the hon. Member for Crosby said, people change their minds. We know that most people who attempt suicide do not want to die. That is the reality. Many such people have said it subsequently—they changed their mind. The Bill does not allow for that, which is the key issue.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

We had that debate on Second Reading. Suicide notes are ruled out. A suicide note could never, ever be an advance decision. The right hon. Gentleman makes an important point about the written statement. If the Government were to give such an undertaking, would he vote with us today?

Photo of Gerald Kaufman Gerald Kaufman Chair, Culture, Media and Sport Committee

May I suggest that if that is the calibre of the Minister's interventions today, he would do better to remain seated? May I make this point to Mr. Duncan Smith, which has been illustrated by my hon. Friend Mrs. Curtis-Thomas? It is one thing for a person to signify an advance wish when they are articulate, but a time may come when they are no longer articulate although their mental activity is as strong as it was and they want to change their mind. The Bill before the House slams the door on that change of mind.

Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green

That is exactly right and it is my main reason for supporting the new clauses. I say to the Minister, with respect to him, that it is a bit late in the day to come here and play this game, "If I say that I might say this, would you say something else?" I thought that, in government, the object is to lay one's position on the table so that we can all decide whether we agree.

The Minister has had plenty of time to come to the House with specific amendments to allow us to vote on what is in his mind, not on what he might do. He has time—if he wants to do that, let him do it—but I am not going to play this game, "If you do one thing, I might do the other."

I feel passionately about this issue, which is not party political, and I have been inspired by speeches made from the Labour Benches and by actions of many of the Minister's colleagues who are opposed to this proposal. I simply say to them all that this is a chance for Members of the House, once and for all, to represent our constituents and to do something that perhaps the courts do not do—take genuine consideration of real people who suffer and worry about such events. People who are not necessarily members of the judiciary or legally qualified—that is us—can do something with a bit of passion and heart. We can put some heart and soul into a soulless Bill. We should vote for these new clauses.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

I wish to speak to amendment No. 2, which is in my name and that of Mrs. Browning, and new clause 4, which is in my name and that of several of my hon. Friends.

Amendment No. 2 represents a genuine effort to build a consensus, which we hope addresses the key objectives that must be addressed if we are to resolve the issue. From the debate so far, I have a clear sense of what the House does not wish to condone in respect of patients who are in a coma or are otherwise incapacitated and unable to make a realistic or meaningful decision, who may be inappropriately subjected to invasive procedures to sustain or hydrate them in the last hours of their lives. Furthermore, I do not believe that we should in any way undermine the principle of advance directives, on which there is also some consensus, in terms of the circumstances in which those directives might be taken seriously. In that regard, Mr. Duncan Smith made an interesting point about a conversation held while sitting watching the television, but advance directives and the intent behind them should be judged more seriously than that.

Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green

With respect to the hon. Gentleman, I notice that new clause 4 says:

"Nothing in this Act authorises the withdrawal of palliative care".

In our new clauses, we define palliative care as including food and fluids. Is that included in his definition?

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

I will talk about new clause 4 in a moment, and try to explain the point about which the right hon. Gentleman has asked me. I want to develop the argument in a logical way.

Photo of Claire Curtis-Thomas Claire Curtis-Thomas Labour, Crosby

My hon. Friend has expressed some reservation about the way in which advance directives are articulated. This morning, I spoke to a consultant from the Netherlands, who talked about the Dutch rules and regulations on euthanasia. He said categorically that there would be no moves to euthanise a body without express written consent that indicates that the individual has been made fully aware of the consequences of the decisions that they are about to make. Would he be keen to see a move made that would formally require advance directives to be written rather than verbally communicated?

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

My hon. Friend will forgive me if I do not address that point at this stage. I have tabled new clause 4, I will speak to it, and I will listen with interest to what my hon. Friend the Minister says in response. My approach to this matter will become apparent, I hope, during the course of my speech. My hon. Friend almost certainly will not agree with me by the end of it, but she will at least see where I am coming from.

I do not want people without capacity to be unnecessarily deprived of sustenance or liquids. Most of us do not want people to be unreasonably subjected to invasive procedures in the last hours of their lives. Moreover, there is the issue of advance directives.

Photo of Angela Browning Angela Browning Vice-Chair, Conservative Party

In the context of people in the last hours of their lives, it is not just what the Bill does in terms of their wishes that is the issue, but how the medical profession will interpret the Bill in terms of possible litigation against them, if it is not interpreted in the way that they see it as drafted. The worry is about getting the balance right between sustaining fluid and nutrition until the point at which someone does not naturally take it, and then having invasive procedures. Under those circumstances, nobody would ever die peacefully at home.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East 1:15 pm, 14th December 2004

I thank the hon. Lady for that intervention. Just as the right hon. Member for Chingford and Woodford Green was inspired by my hon. Friend Mrs. Curtis-Thomas, it was a speech made by Mrs. Browning in Standing Committee that set me off along this track. I will address exactly her point in a few moments.

Many of the views expressed already in the debate reflect people's decency and straightforwardness in terms of how they wish to interpret the Bill. To be fair and honest, it is not reasonable to say that those qualities exist on one side of the argument but not on the other. Everybody is struggling to find a way through these difficult issues. In the course of trying to arrive at a form of words that makes some kind of sense, I sat through almost all of the Standing Committee, and consulted the British Medical Association and as many of the faiths groups as I could—some chose not to respond, for whatever reason—and I feel that there is a genuine wish in the House and elsewhere to arrive at a decent, straightforward conclusion that reflects in the best way possible the many circumstances in which the provisions will have to be applied.

Photo of Frank Field Frank Field Labour, Birkenhead

Does my hon. Friend accept that many of us could vote for his new clause but also for the others? He is dealing with an immensely important area that strengthens the role of the doctor. He will know that one of our most distinguished doctors, Professor Tallis, has written that he has undertaken treatment when he believed that he should not do so, because, like all other doctors, he was scared of what the relatives would do to him in the courts. The new clause strengthens the hand of doctors in saying that treatment is not right at such a stage, and it is therefore fair for some of us to support him in the Lobby on his new clause while also voting for the other new clauses that are down for discussion.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

I have known my right hon. Friend for many years and have found that the best course of action with him is not to provide him with any advice, as he has his own opinions and arrives at them in his own way. I am confident that he has the intellectual capacity to work out his own position. What I would say, however, is that there is some merit in his argument. Earlier, we both took part in a Merseyside radio programme—we were not on the same programme simultaneously, but I had the benefit of hearing his contribution—and he made that point then. The climate is difficult, and we live in what people have referred to as a compensation culture. His concern is genuine and I am sure that, if a distinguished medical practitioner says that it is a problem, we must take it seriously. I hope that my hon. Friend the Minister will address that point when he speaks later in the debate.

Photo of Andy Reed Andy Reed Labour/Co-operative, Loughborough

On consensus, it is clear that most people in the House would not want any form of euthanasia. For people such as me, who feel strongly about that, there is a certain amount of confusion at this stage about exactly what is being proposed. Having listened to my hon. Friend's contribution so far, I am looking forward to hearing more of it. I also have a great deal of sympathy with what Mr. Duncan Smith said, following our discussion earlier this morning. As my hon. Friend makes progress in his speech, will he enlighten us as to what he believes are the deficiencies of new clauses 1 and 2, and how his new clause would make the position much clearer, as many of us are genuinely struggling with this issue even at this late stage, despite the thousands of briefings that we have received from all parts of the country?

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

What my hon. Friend says reflects the anxieties of many Members on both sides of the House. I do not suggest that this should be the final word, but I think it relevant to remind Members of the wording of clause 58, entitled "Scope of the Act". It says

"For the avoidance of doubt, it is hereby declared that nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (c. 60) (assisting suicide)."

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

I will, if my hon. Friend will allow me to go on replying to my hon. Friend Mr. Reed first.

Both the right hon. Member for Chingford and Woodford Green and my hon. Friend Jim Dobbin pointed out that the debate on euthanasia was a separate debate, although some Members might prefer it not to be. A Bill on the subject is currently before the House of Lords. To avoid any doubt, however, my hon. Friend the Minister chose to include clause 58, and I consider that helpful.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

I did say that I would give way to my hon. Friend Mr. Drew. I will give way to my right hon. Friend after that.

Photo of David Drew David Drew Labour/Co-operative, Stroud

Some of us would find the whole debate much easier if Lord Joffe's Bill had reached this place and we had made a clear decision—which, in my case, would have been totally against euthanasia. The debate has a backcloth of uncertainty, which is why some of us are finding it difficult. Once we have put that issue to rest, we can return to what this Bill is trying to do. Would my hon. Friend care to comment?

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

To be honest, no. It is not that I am afraid of the argument; my hon. Friend is trying to get me to debate something that is not part of new clause 4 or amendment No. 2. As those who support new clause 1 have conceded, and as clause 58 makes clear, it forms no part of the Bill. I agree with my hon. Friend on one point, however. Had I had any responsibility for the programming, I would have concluded that it would be easier to have this debate if we had had the other debate first. But unfortunately we do not have that luxury, and must deal with what is before us.

I promised to give way to my right hon. Friend Sir Gerald Kaufman, but I feel that I should make progress after that.

Photo of Gerald Kaufman Gerald Kaufman Chair, Culture, Media and Sport Committee

My hon. Friend thought it appropriate, and necessary, to read out clause 58. Does he nevertheless agree that if the fear that the Bill would bring in euthanasia by the back door did not exist, the Government would not have found it necessary to table that clause? In seeking to say that the Bill is not about euthanasia, it demonstrates that however much the Government may try to dodge the issue, euthanasia is a factor in consideration of the Bill.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

My right hon. Friend and I crossed swords in a slightly different context last night. I said then that I was always loth to enter into a disagreement with him, on two grounds: the ground that I have enormous respect for him, and the ground of self-protection.

My right hon. Friend makes his own serious point in his own serious way, and I think it would be more appropriate for my hon. Friend the Minister to respond to it. I cannot take responsibility for my hon. Friend. I should be delighted to do so were he to ask me, but as he has never asked me I shall not.

I have been trying for some time to make one or two general points about the amendment and the new clause before moving on to the more detailed argument. When I tabled the amendment, I was deeply conscious that I risked offending Members who have the same broad objectives as me, but wish to arrive at the same conclusion by a different route. To an extent, that risk has already been evident. I can only say that I recognise the absolute sincerity that those Members have brought to the debate, and hope they recognise that I am equally sincere. My disagreement with them relates not to their sincerity or objectives, but to how we can get to the best possible place. I believe that most Members, and most of the general public, want to get to the same place. The choice between the new clauses and amendments we are discussing is about how we get there. It is not that we want to be in different places; it is a question of which route we take.

I hope that I shall not offend too many Members, because the hon. Member for Tiverton and Honiton and I are genuinely trying to build a realistic consensus. Like the right hon. Member for Chingford and Woodford Green, I am not a lawyer, but I have some years' experience as a Member of Parliament. That has given me insight into the need for the language of legislation to be kept simple, and the need always to be alert to the fact that the more words we apply to complex moral issues such as this, the more the meaning of those words and the intention behind them can cause confusion and lead to misinterpretation. For those reasons, as I said earlier, I have gone to a great deal of trouble to consult those who take a strong interest in this matter, in the House and elsewhere. That includes my hon. Friend the Minister.

I do not claim that the wording of amendment No. 2 and new clause 4 is perfect as it stands, but I believe it serves the objectives that I mentioned a moment ago. In what I considered a thoughtful speech, the right hon. Member for Chingford and Woodford Green said that he wanted to apply a simple test—to find in favour of life. I do not think that I have misquoted him. That is why, in amendment No. 2, I refer in terms to that very issue. The presumption in the amendment is that it is in a person's interests to stay alive—to be alive—rather than the alternative.

I made the wording simple because I think it carries the spirit of the Bill with it. It adds a qualification to the "best interests" referred to in clause 1(5). In other words, it is in the patient's best interests, in most circumstances, to stay alive. In my view, that gives a strong and clear signal to medical practitioners, and anyone appointed to act as a proxy or advocate, without giving them a set of instructions that in many cases they might be obliged to follow, even though they would not add to the comfort or dignity of the patient. Indeed, there will be cases in which the opposite will be the case.

Photo of Gordon Marsden Gordon Marsden PPS (Rt Hon Tessa Jowell, Secretary of State), Department for Culture, Media & Sport

As was made clear at the start of the debate, a key issue is the ability of some advance decisions to be flexible. Does it worry my hon. Friend that, in taking account of what the best interests of a patient might be, doctors and medical authorities might place too much emphasis on what might or might not have been said by that patient five or 10 years earlier? We have all heard the eloquent description given by my hon. Friend Mrs. Curtis-Thomas of the case of her mother, which is a classic illustration of why it is important to preserve flexibility. Does my hon. Friend feel that the wording of his amendment would allow doctors to make their decisions largely on the basis of the physical state of the person before them, rather than on what they might have said five or 10 years earlier?

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East 1:30 pm, 14th December 2004

This is a hugely complicated area, and I hope that so far I have avoided trying to score points or to make party political or other arguments. The reality is that the circumstances that my hon. Friend describes—and which were indeed described eloquently on a previous occasion by my hon. Friend Mrs. Curtis-Thomas—will not always be as simple as he suggests. There might be an advance directive or a living will that makes clear the person's wishes in terms that are appropriate in those circumstances. Most such cases could be dealt with, but it may well be that somebody has made an advance directive that does not take account of their current circumstances. Such cases will prove a struggle, and there is no way of avoiding that. There is the question of what is in the person's best interest medically, and the proxy's view as to what is in their best interest. Both will have to be taken into account.

Let me deal briefly with an issue to which I shall perhaps return at the end of my speech—if I ever get there. [Interruption.] I am going as quickly as I can; I have accepted a lot of interventions. I accept that whatever we decide today, a great many cases will still have to be decided in the courts. That is an inescapable fact of life.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

If my hon. Friend will forgive me, I will not. There is a time limit and several Members seem to be indicating that I am taking up time that in their opinion, they should be able to use to express their views. For that reason, I shall not take any further interventions but move towards my conclusion.

One of the strengths of the debate surrounding this issue has been the personal examples on which many people have been able to draw, not the least of which are the experiences that my hon. Friend the Member for Crosby described on Second Reading. Such experiences are difficult and emotionally wrought, and they have added to our understanding of what can go wrong, as well as what can go right. But we need to be conscious of the fact that it is very difficult to arrive at a general legislative proposition from particular examples. In fact, because each case is unique, it would be wrong to create a single template to govern an infinite variety of individual circumstances, and my fear is—I say this in as friendly a way as possible—that new clauses 1 and 2 do exactly that. They establish a set of instructions for people to follow in these very difficult circumstances. As the adage has it, hard cases make bad law.

It was the hon. Member for Tiverton and Honiton who caused me to think further about this issue. Initially, I held the view that the "best interest" test, which first appears in clause 1(5) and subsequently in clause 4, was the right approach, in that it was sufficiently straightforward but also allowed adequate discretion as to what was appropriate in each individual case. However, the hon. Lady pointed out that in cases where hydration might not be appropriate, it could still be extremely uncomfortable for a patient to be left with a dry mouth, for example. Moreover, since such patients would probably be unable to communicate their discomfort, in many cases their need could be left unmet, either through lack of awareness—that is always a possibility in a busy hospital ward—or neglect, which is also possible. It was that concern that set me on this course.

The British Medical Association tells me that this is a matter of basic care, which is normally down to good nursing practice. Thirst can be detected by a simple oral sponge test and remedied by proper oral care. I should make it clear that amendment No. 2 expects such basic care to be carried out in those circumstances.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

Yes, but this really must be the last time.

Photo of Ann Winterton Ann Winterton Conservative, Congleton

I am very grateful to the hon. Gentleman, who has made great efforts to simplify this issue. My only criticism of his amendment is that it asks the House to judge whether a person's life is worth while or otherwise; in my view, the issue should be not that, but treatment. He cites the BMA in respect of basic care, but he has not dealt with the issue, raised by my right hon. Friend Mr. Duncan Smith, of withdrawal of hydration and nutrition in palliative care. We call such care basic care. Does the hon. Gentleman agree, and does he believe that it should not be withdrawn from a person who is not dying?

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

In the overwhelming majority of cases, the point made by the hon. Lady and the right hon. Member for Chingford and Woodford Green will apply, but as I have said, every case is unique. As the Minister made clear in an intervention, in some circumstances and in respect of some conditions, hydration and sustenance, far from helping, would actually make matters worse. I do not want to leave scope for any misinterpretation in that regard. Basic care is one thing; hydration and sustenance is another. In the overwhelming majority of cases, they will be the same thing, but in some circumstances they might not be. I want to make it clear that even in cases where hydration is inappropriate, it is not appropriate to leave somebody with a dry mouth, for example. That would be very uncomfortable for them, and it would make the dignity and comfort of their last hours worse, rather than better. Let the House be in no doubt about that.

I and my hon. Friends the Members for Ealing, North (Mr. Pound) and for Dartford (Dr. Stoate) have tabled new clause 4, which deals with new clause 2 in simple terms; in fact, it consists solely of the first line of new clause 2 and eliminates the subsequent elaboration. I do not know what the Minister's response to it will be, but it is a genuine effort to retain the sentiment behind clause 4 without allowing it to be read as a set of instructions in every circumstance, which would be a mistake. That is the intention behind our provision, and if the Minister can satisfy me on this point I will be very happy indeed.

If there is a flaw in amendment No. 2, as the Government amendment to it implies, I stand ready to correct it and I will listen very carefully to the Minister's explanation as to why his amendment is necessary.That apart, I believe that my amendment strikes the right balance. It accepts that sustenance and liquid will normally be made available, but by stating the principle in simple terms, it allows for cases where doing so is undesirable and not in the patient's best interests. To put it starkly, I believe that it avoids setting up a practice that too often leads, albeit unintentionally, to people being attached to tubes or subjected to other invasive procedures to no useful purpose, with all the attendant discomfort and indignity caused to people in their final hours.

I commend the amendment to the House. Subject to what the Minister says, I hope that we can form a consensus around its principles and make the legislation better.

Photo of Paul Burstow Paul Burstow Shadow Secretary of State for Health

I rise to speak primarily in support of my amendment No. 46, but also in support of the amendments and new clauses proposed by Mr. Howarth. I shall also speak to support the proposals tabled by Mr. Duncan Smith that I have also signed.

I want to make it clear from the outset that I do not believe that the Bill gives the green light to euthanasia. That is not just my view, but that of the Catholic bishops conference, which said in its briefing to the Bill on Second Reading:

"We had argued that the inclusion of a clause such as Clause 58 was the minimum required to provide the necessary assurance that nothing in the Bill permits euthanasia. With such a clause now in the Mental Capacity Bill, together with other important changes made to meet our concerns, we do not believe that the Bill can be described correctly as a Bill introducing a permission for euthanasia".

That is an important and clear statement. Some of the press comments on the Bill seem light years away from the measured tone of the Catholic bishops. Some of the reporting over the last few days has been ill informed, misleading and, in going out of its way to frighten people, arguably mischievous. That is a real cause of concern.

The Bill is about giving people who lack capacity greater control over their day-to-day lives.

Photo of Paul Burstow Paul Burstow Shadow Secretary of State for Health

If the hon. Gentleman has a question about the Catholic bishops, I am more than happy to take his intervention now.

Photo of Mr Kevin McNamara Mr Kevin McNamara Labour, Kingston upon Hull North

I am most grateful. The hon. Gentleman cited what the Catholic bishops said. However, they also said that although clause 58 could not be correctly described as introducing a permission for euthanasia, which would have meant opposition for that reason, it still had two serious and remediable weaknesses. They said that, unless the weaknesses were addressed, the Bill could still unintentionally become a vehicle for euthanasia by omission or withdrawal of medical treatment.

Photo of Paul Burstow Paul Burstow Shadow Secretary of State for Health

The hon. Gentleman is right. That is why, in Committee, I tabled an amendment that was not dissimilar to the new clauses before the House today. It posed the question of the central purpose behind the action. Is it to hasten a person's death or is it to palliate and provide care, comfort and support? That is central to today's debate and I am clear in my personal view that the new clauses provide the additional reassurance that both the Church of England and the Catholic bishops conference are seeking from the House today. That is why I started my remarks by observing that they have been assured on certain points, but the hon. Gentleman is quite right to draw attention to the fact that some further matters remain before the House today.

As I was saying, the Bill is about giving people who lack capacity more control over the way they live their day-to-day lives. Understandably, our debate is focusing on end-of-life decision making, but the bulk of the Bill is about the millions of people in this country who lack capacity to take decisions and it provides a proper framework in which they can take more decisions and exert more control over their own lives. It is about decisions as simple as what people eat, what they wear, when they go out and when they go to bed; everyday decisions that we in the House and many of our fellow citizens take for granted.

The central purpose of the Bill is to maximise the opportunities for people to take such decisions for themselves. It enshrines in law a new starting point—a presumption of capacity—and only when it is proven that capacity is lacking can someone else start to take proxy decisions. Those outside the House who want to portray the Bill as somehow having an evil intention are doing a disservice to millions of our fellow citizens who will benefit from it. That, as well as the concerns of the Catholic bishops and others, needs to be put on the record.

That does not mean that certain issues do not remain to be debated at this stage of the Bill or that the new clauses and amendments in the group would not help to further strengthen the safeguards. Indeed, the Bill will be strengthened considerably if they are passed today. I do not mean to imply that no further safeguards are needed in respect of such matters as advance decision making. I believe that, as a general rule, they should be put in writing, but that is sadly not the case in the Bill as it stands at the moment.

I want to make it clear that Liberal Democrat Members have a free vote on new clauses 1, 2 and 4 and on amendments Nos. 1 and 2. I will personally support new clauses 1 and 2 and will deal in a moment with my reasons for doing so. The hon. Member for Knowsley, North and Sefton, East is right that people on all sides of the debate are trying to strike a balance and to find a way through and make it absolutely clear that the Bill is not about euthanasia. The best way of striking that balance is by testing opinion through free votes in the House. I regret the unwillingness in certain quarters to allow free votes on this matter. It reflects a weakness in the argument, but I appreciate that it is not the hon. Gentleman's fault.

I want to speak to amendment No. 46. I believe that people have the right to expect that they will be cared for to the highest standards. The purpose of my amendment is to introduce an equal consideration clause into the statement of principles in the Bill. Such a clause would ensure that a person who lacks capacity is treated no less favourably than a person—any other person—who either lacks capacity or has capacity in similar circumstances. The purpose is to make it clear that proxy decision makers must banish their personal prejudices and attitudes when they come to act on behalf of a person who lacks capacity.

Photo of Brian Iddon Brian Iddon Labour, Bolton South East 1:45 pm, 14th December 2004

Is the hon. Gentleman aware of research showing that when a person is appointed a proxy or attorney—whatever one calls it—in many cases they do not always carry out the wishes of the person who gave them that power?

Photo of Paul Burstow Paul Burstow Shadow Secretary of State for Health

That is the sort of evidence that led me to draft my amendment before the House today. It is all about ensuring that a person who lacks capacity is treated no less favourably than a person who has capacity.

Photo of Tim Boswell Tim Boswell Shadow Minister, Economic Affairs, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Work and Pensions)

I have considerable sympathy with the hon. Gentleman's amendment. In cases of persons with learning disabilities, does he agree that there is a sad history of second-rate medical treatment—physical as well as in relation to their specific mental disability—because some members of the medical profession still somehow feel that they are less important priorities for treatment?

Photo of Paul Burstow Paul Burstow Shadow Secretary of State for Health

I am coming on to an example that addresses precisely that point. Sadly, that is what anecdotal, and some research, evidence suggests, so if we are putting in place statutory safeguards and arrangements for proxy decision-making, we must try to ensure that we avoid those pitfalls in future. That is what my amendment is designed to do. We should never make the assumption that life has less value for people who have difficulty in making decisions or need support to do so or who may not be able to make them at all. The adoption of the new principle would further increase confidence in the operation of the Bill.

The amendment stems from evidence that has already been referred to and from anecdotal and other evidence that prejudices and attitudes about the quality of life of people with serious learning disabilities, serious mental health problems, head injuries or other conditions that affect capacity can get in the way of supporting those people as they are in respect of what they want and need. For example, decisions about treatment for elderly people or those with severe learning disabilities who lack capacity can sometimes be made by professionals on the basis that their lives are of less value than that of a much younger person.

In other words, the date of a person's birth can determine access to treatment in a most unsatisfactory and inappropriate way. Such decisions can also be taken in a perfunctory way when it comes to consultation with families. There have been examples of families coming to visit an elderly relative in hospital to find a "do not resuscitate" notice hanging on the end of the person's bed without any proper dialogue with relatives or the individual in the bed about whether that was wanted. Amendment No. 46, therefore, will also complement families' new legal right to be consulted about the care and treatment provided to a relative who lacks capacity.

In Committee, I raised a similar problem with the Minister, who argued that the Disability Discrimination Act 1995 and the Disability Discrimination Bill currently going through the House would provide protection for decisions and actions taken under this Bill. That may be so in many situations, but there are concerns that the Disability Discrimination Bill excludes a significant number of people who lack capacity. In particular, the requirement that a disability must have a long-term effect—and "long-term" is defined as a period of at least 12 months—will mean the people who lack capacity because of an illness or injury for less than 12 months will not be covered by the discrimination legislation currently going through the House.

The Minister may say that such matters should be dealt with in the discrimination legislation, but I want to give the House an example. An older person who has an accident and loses capacity temporarily, but who is likely to recover, will still need professionals to make decisions on his or her behalf. Without the new clause as amended, there would be no protection for that person against prejudicial decisions based on age alone, especially if the person involved had no relatives to make representations. If the Bill makes no reference to discrimination legislation, it will create a lack of clarity for medical professionals and others about whether they are behaving in a lawful way.

In the end, the courts will have to make decisions about the interface between this Bill and the Disability Discrimination Act 1995. Amendment No. 46 would close that gap and ensure that people are treated with equal consideration, regardless of capacity.

I turn now to new clauses 1 and 2. The latest briefing from the Catholic bishops conference makes some important points. It states:

"It is both moral and legal to withhold treatment when it is judged that the treatment, even if necessary to sustain a patient's life, is not in the patient's best interests because, given the patient's condition, the burdens it imposes are excessive compared with the benefits it offers . . . It is not true that life must be sustained at all costs . . . One can legitimately choose to forgo or withhold treatment because its burdensomeness is disproportionate to any likely benefit from it. One can do so even though one is sure that without it death will come soon, or come sooner."

The new clauses recognise that reality. They accept that the courts still have jurisdiction in terms of making decisions. As the right hon. Member for Chingford and Woodford Green said, they do not change the Bland judgment, but they do prevent that judgment from being extended by means of a statutory provision. The focus should be on whether the treatment is beneficial or burdensome, and the aim is not to keep a person alive at all costs. Hon. Members noted earlier that we should not strive officiously to keep people alive and, ultimately, such matters must be settled in the courts.

Photo of John Pugh John Pugh Shadow Spokesperson (Education)

Does my hon. Friend agree that one virtue of new clauses 1 and 2 is that they are highly specific? I have some sympathy for amendment No. 2, tabled by Mr. Howarth. Some people have criticised it and said that it may have the effect of reversing the Bland judgment. Will my hon. Friend comment on that?

Photo of Paul Burstow Paul Burstow Shadow Secretary of State for Health

One concern mentioned in the briefings is that focusing on quality of life, and on whether a person's life is worthwhile, causes us to miss the point. We should ask, "Is this treatment worthwhile?" That is why I shall not support the amendment tabled by the hon. Member for Knowsley, North and Sefton, East even though I know that it is well intentioned and attempts to bridge gaps.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

I am greatly honoured to be patronised by the hon. Gentleman, and I am aware that there may be difficulties with the wording, along the lines described by Dr. Pugh. I shall wait to hear what my hon. Friend the Minister has to say before I form my judgment.

Photo of Paul Burstow Paul Burstow Shadow Secretary of State for Health

I am grateful for that intervention, and I am sorry for the hon. Gentleman's misunderstanding of my comments on the amendment.

Photo of John Pugh John Pugh Shadow Spokesperson (Education)

My hon. Friend and I seem to be conducting a dialogue through the hon. Member for Knowsley, North and Sefton, East), but I wanted to point out that, if the hon. Gentleman's amendment were amended by the Minister in the way proposed, it would lose the support of one of those who supported it originally.

Photo of Paul Burstow Paul Burstow Shadow Secretary of State for Health

I believe that that is so. I shall move on, as I do not want to patronise the hon. Member for Knowsley, North and Sefton, East any further.

Photo of Paul Burstow Paul Burstow Shadow Secretary of State for Health

I want to make one more point—I hope in a non-patronising manner—and then I will give way.

Earlier, the Minister referred to certain forms of tumour that can grow larger as a result of continued hydration and nutrition. However, surely a court would decide that to withdraw treatment in those circumstances was to confer a benefit, as that would slow the progress of the condition and thus reduce the likelihood that the person involved would die sooner. That seems to be the debate that we are trying to have.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

How is the benefit conferred by the amendment? We have all been working to ensure that no one can cause death, but the amendment as drafted deals with what is burdensome, and with a situation in which a person is unconscious. The Government have spoken to the medical professionals about the circumstances of people with cancer, because we are in sympathy with the aims of the amendment. They have told us that ANH might hasten death, but that that is not covered by the amendment as drafted.

Photo of Paul Burstow Paul Burstow Shadow Secretary of State for Health

The Government have considerable resources when it comes to drafting. The Catholic bishops have been very engaged with the Government, and very positive about their desire for dialogue. Today's debate is an opportunity to move that dialogue forward. If the Minister is able to reply to the debate by saying that he is seriously willing to enter into further dialogue with the aim of devising an amendment that would achieve a closing of the gap that has been described, that would be fine and wonderful.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

Conversations continue, and of course I will be saying that.

Photo of Paul Burstow Paul Burstow Shadow Secretary of State for Health

I hope that the Minister will make it clear that the intention is to find a further amendment that will address this concern.

Photo of Angela Browning Angela Browning Vice-Chair, Conservative Party

I want to have a go at trying to persuade the hon. Gentleman to vote for amendment No. 2, which deals with the principle of the matter. The Bill talks about many ways in which life can end, and it is always difficult to address such matters adequately, but the principle behind amendment No. 2 is that it is in a person's best interest for life to continue. That may be for only a short while, or in circumstances in which invasive treatment cannot be considered, but surely the principle that life must continue must be placed on the face of the Bill. If not, the Bill will be specifically about ending life, and it should not be about that.

Photo of Paul Burstow Paul Burstow Shadow Secretary of State for Health

No, it should not. I am still uneasy about the interaction between the drafting of amendment No. 2 and the new clause. The danger is that the Bill may be tilted towards asking whether a person's life has worth and so is worth saving. A better question is, "Is this treatment worthwhile and beneficial?" My amendment would try to change the presumption.

Photo of Paul Burstow Paul Burstow Shadow Secretary of State for Health

The hon. Gentleman said earlier that many hon. Members wish to speak, and I do want to make some progress, but I will let him intervene.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

I am grateful to the hon. Gentleman for giving way, but I think that he is misrepresenting amendment No. 2. The presumption in the amendment is not that it is the quality of a person's life that should be judged. It is simply that it is better for a life to continue than not to continue. Questions of quality have to do with what is appropriate in the period between a decision being made and the end of that person's life. As Mrs. Browning said, that will vary in every case.

Photo of Paul Burstow Paul Burstow Shadow Secretary of State for Health

My anxiety is made worse by the fact that an amendment proposed to amendment No. 2 would delete the word "best", and water down the original in other ways. I accept that that is not the hon. Gentleman's doing, but that is the proposition before us today, and it gives rise to further concern.

The amendments that I support are about clarity and reassurance. They are about ensuring that we are focused on treatment that is beneficial, not burdensome. We must make it clear that the courts still have jurisdiction in such decisions. Those amendments will be the subject of a free vote, but amendment No. 46 is about ensuring that regardless of whether someone retains capacity, he or she is treated in an equal fashion and is not the subject of prejudice, or bogus assumptions that lead to inappropriate treatment. That is the key to amendment No. 46 and I look forward to the Minister's response to it.

Photo of Brian Iddon Brian Iddon Labour, Bolton South East 2:00 pm, 14th December 2004

I speak in support of amendment No. 32, in my name and that of other right hon. and hon. Members. The amendment has the clear aim of removing advance directives, or living wills, from the Bill. I should say at the start that I do not belong to any pro-life organisations and I do not practise any religion actively, so I am not under any pressure from that direction. I am disappointed that we can have a free vote on beginning-of-life issues, but not on end-of-life issues. I would have preferred it if Labour Members had a free vote on this issue.

I remind the Government that 102 Members of Parliament have signed early-day motion 336, which recognises that there is a problem with this Bill. I cannot vote for advance directives—sometimes ironically called living wills—to become part of our statute law, because they have always been abhorrent to me. However, to those who believe in them, I say that I have no objection to people making living wills provided that they remain in common law and are not enshrined in this Bill.

I shall explain why I cannot vote to include advance directives in the Bill. First, we had a considerable debate on living wills when similar legislation passed through the Scottish Parliament. That resulted in the Adults with Incapacity (Scotland) Act 2000. The debate there resulted in similar clauses to those we are discussing being removed from the Scottish legislation. That is a significant point that we should remember. Secondly, the House of Lords Select Committee on Medical Ethics recommended in 1994 that advance directives should never be legally binding, as is proposed this afternoon. In paragraph 264 of its report, the Committee stated:

"We suggest that it could well be impossible to give Advanced Directives in general greater legal force without depriving patients of the benefit of the doctor's professional expertise and of new treatments and procedures which may become available since the Advanced Directive was signed."

The rest of the report contained similar comments.

Thirdly, there is the uncertainty cast on advance directives by the recent challenge to them by Leslie Burke of Lancaster. The General Medical Council has appealed that decision and Parliament is awaiting the result, but it is pertinent to the decision that we will take this afternoon. Leslie Burke made the point that advance directives are very negative. One can ask the doctor not to do things, but one cannot ask the doctor to do things. That is the challenge by Leslie Burke and it is pertinent to our vote today. I cannot vote for advance directives when I do not know the result of that appeal.

Fourthly and significantly, the 23rd report of Session 2003–04 from the Joint House of Commons and House of Lords Committee on Human Rights, published as recently as 29 November, casts serious doubts on the Government's assertion that the Bill is compatible with human rights legislation. The Joint Committee believes that the Bill raises serious human rights concerns, which include putting advance directives in the Bill. It was not that long ago that the Government were against including advance directives in statute law. Why have the Government done a U-turn on that?

I accept the good intentions of the Government in introducing the Bill that has had a long gestation—about 15 years, in fact—and I am only sorry that the Bill has been spoiled by the failure to listen to its opponents. I am very disappointed that it came out of Committee unamended. Not a single principal amendment was accepted in the course of a fairly long Committee stage, and that concerns me.

My fifth point is my real message: it is not what is in the Bill that counts, nor even what is left out of the Bill, but the signal that the Bill sends. I shall explain that by reminding the House of the origins of advance directives. They were launched in the United States of America in 1969 in a law journal article entitled,"Due Process of Euthanasia: The Living Will, a Proposal". That is the paper from which the subject of our debate arose. In 1977, a US health department official, Robert Derzon, advised President Carter to

"change social values regarding cost-inducing activities".

He continued:

"The cost-saving from a nation-wide push toward Living Wills is likely to be enormous. Over one fifth of Medicare expenditures are for persons in the last year of their life".

In 1991, the US Government made it compulsory for all patients admitted to a hospital, for whatever reason, to be presented with living will forms to complete. We might argue that that could never happen here. Well, it just has. In 2003, the Hammersmith Hospitals NHS Trust decided that it would offer living wills to all those admitted. It was followed by Imperial college hospital. Will that bandwagon roll further? Will the Government allow the NHS to give everyone admitted to hospital a living will? If someone is given a living will on entry to hospital, it puts them under pressure at a time when they are already sick and possibly depressed. What a time to give people a living will—as they are admitted to hospital. I condemn Hammersmith Hospitals NHS Trust and Imperial college hospital for that.

Photo of Angela Browning Angela Browning Vice-Chair, Conservative Party

Given that the Bill is about people who lack capacity and would be unable, therefore, to fill in such a living will, should a relative be able to fill in the form for them?

Photo of Brian Iddon Brian Iddon Labour, Bolton South East

I do not know what Hammersmith Hospitals NHS Trust has in mind. I do not know the details of its agreement. However, I would be worried about it whether or not a relative filled it in. I am against the principle, which comes from the US.

Is it any wonder that some of us link the Bill to euthanasia? In fact, the Voluntary Euthanasia Society and other organisations appear to be behind the move to enshrine advance directives in the Bill. If they are successful this afternoon, they will get a signal that the bandwagon is beginning to roll. There have been three attempts, including this one, by people such as Lord Joffe, to bring assisted suicide or voluntary euthanasia before Parliament. This Bill sends out the signal that the Government might—I emphasise the word "might"—be willing to listen to those people at some time in the future.

Let us be fair to the Voluntary Euthanasia Society—it is, after all, one of the main propagators of living wills: its path is clear and if we do not know that, or cannot understand it, we should. Its path is to bring assisted suicide, or voluntary euthanasia, to this country, as has happened in the Netherlands, Belgium, Oregon and elsewhere. I am against that.

The bioethicists march on. In a leading article, published in 1997 in the "Hastings Center Report", one of the pre-eminent journals on bioethics, Professor John Hardwig argued that there was a duty to die and published criteria to help people make that decision. I am horrified that in the Daily Mail this week, Baroness Warnock told the elderly something similar, under the headline, "Kill yourself, so you won't be a burden". That is reprehensible stuff. Where is the country going?

People can change their mind. My hon. Friend Mrs. Curtis-Thomas gave us an example when she talked of her mother. The respected journalist Claire Rayner signed a living will. Unfortunately, she had to go into intensive care where doctors could twice have switched off her life, but her relatives were not happy about it. I do not think that the doctors were happy either, but at the time living wills came under common law—not statute law. She survived and the first thing she did when she came out of hospital was to tear up her living will.

At a conference in Holland in 1990, right to die groups pushed a pamphlet on living wills; on the back was the heading, "The Living Will: Passport to Euthanasia". If Members do not believe that people who push living wills will not be pushing assisted suicide or voluntary euthanasia next, they are living in cloud cuckoo land. That is why I am so against enshrining living wills in the Bill, and that is why I shall vote against it today, good as other parts of it are.

At a meeting of the education council of the Euthanasia Society of America, a new document was proposed, whose stated purpose was to provoke a gradual change—a gradual change—in public attitudes to euthanasia. The author of the document also made a link between living wills and euthanasia. That is why some of us—perhaps only a minority—link the application of living wills under the Bill to euthanasia by omission, if not by commission. People who sign advance directives are usually convinced that they are taking greater control of their life, whereas in fact they may be giving up control of their life. That is one of the dangers.

The concept behind an advance directive must surely be that the patient be allowed to die with dignity and in the absence of pain, yet by refusing some medical treatments the patient could suffer a lengthy, painful and bedridden existence, simply because they wanted doctors to carry out an advance directive.

I am also concerned about the pressure that such provisions would put on the health service. The Minister wants people to obtain advice from their doctors, but are not general practitioners already hard pressed? How would such provisions operate in a hospital, especially in an accident and emergency department? How much bureaucracy will they pile on the NHS? If living wills are accepted in the Bill, more people will think, "They're a good thing, I'll make one, too." Relatives will start to talk. The whole process will gain momentum—the very thing the Voluntary Euthanasia Society wants. The more of them that are written, the more bureaucracy will be piled on the NHS. That is another reason why I am against enshrining advance directives in the Bill.

Photo of Patrick Hall Patrick Hall Labour, Bedford

Does my hon. Friend agree that there is no euthanasia under English law, only murder, and there is no way under English law that a person can ask someone else to murder them?

Photo of Brian Iddon Brian Iddon Labour, Bolton South East

That is true, but I am talking about euthanasia by omission, which would be the danger under the Bill, and about which many of us are worried.

Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green

May I, through the hon. Gentleman, answer the question put by Mr. Hall? If one withdraws food and water from someone, one brings about their death. That may not be termed murder, but it is exactly the same thing.

Photo of Brian Iddon Brian Iddon Labour, Bolton South East 2:15 pm, 14th December 2004

I do not want to comment on that point of view. I respect the right hon. Gentleman's opinion.

I am concerned that we are developing negative attitudes in our health care and social care systems. We hear about the burden of care and we talk about the quality of life as though people who have a poor quality of life should no longer live. Those are negative attitudes. We should rejoice that people have had a good life and help them to die in dignity. We should promote palliative care and hospices. We should fund children's hospices properly. That is the direction that Parliament should take, rather than the negativity of some parts of the Bill.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

Does my hon. Friend agree that there are currently three positions on this matter? He makes a strong and impassioned case for altogether abandoning living wills and advance decisions. Under common law, people can seek to make living wills. People with Alzheimer's want to be able to say, "This is what I want to happen to me when my mental faculties go completely"—which is why the society supports the provision—and that is what they tell their loved ones. We either abandon living wills altogether, as my hon. Friend says, or we seek to make them safer and stronger so that the clinicians who have to apply them can do so in the right circumstances. In essence, that is the situation that we are debating.

Photo of Brian Iddon Brian Iddon Labour, Bolton South East

I never said that we should abandon living wills altogether. People have a right to make them, if only to flag up their wishes to their relatives—if not to their doctors—but I do not want to enshrine them in the Bill and send a signal to the Voluntary Euthanasia Society that it is winning the argument. That is the point I was trying to make.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

If we leave living wills as they are, they remain unregulated, unsupervised and unchecked. Doctors tell us that they do not know where they are.

Photo of Brian Iddon Brian Iddon Labour, Bolton South East

As I have tried to explain, if we accept the provisions in the Bill, more people will think that living wills are a good thing. I have already explained the consequences of that so I shall not go over that ground.

Other Members want to speak, so I shall finish by reading out a statement that was referred to on Second Reading, but it is worth repeating. The pro-euthanasia bioethicist Dr. Helga Kuhse said:

"If we can get people to accept the removal of all treatment and care—especially removal of food and fluids—they will see what a painful way this is to die and then, in the patient's best interests, they will accept the lethal injection."

I do not want to take even the first step on the path that the Voluntary Euthanasia Society wants us to tread, and that is why I shall vote against the inclusion of living wills in the Bill. I hope, Mr. Deputy Speaker, that you will put amendment No. 32 to the vote.

Photo of Ann Winterton Ann Winterton Conservative, Congleton

I support new clauses 1 and 2. Neither has been proposed because we, on our side of the argument, are vitalists who seek to preserve life at all costs. It is right that we must limit medical care where it will not work, where it is futile or burdensome, and that is done regularly in clinical practice. However, that is a different matter entirely from requiring, as the Bill would in certain circumstances, that treatment and/or assisted food and fluids be withheld or withdrawn from non-dying patients. The question should always be: is this treatment worth while? It should not be: is this patient's life worth while? That is why I cannot support amendment No. 2, tabled by Mr. Howarth.

I want to speak, as briefly as I can, on best interests in relation to amendment No. 1, because the Bill pivots around the definition of best interests. All acts done or decisions made under the Bill for or on behalf of a person who lacks capacity will be required to be done or made in his best interests, but the Bill's explanation of best interests makes no reference to the fact that persons, even when unconscious of or mistaken about their interests, have an objective interest in their own life, health and well-being. Instead, it says:

"In determining . . . what is in a person's best interests, the person making the determination must consider all the circumstances appearing to him to be relevant."

The Government have tabled an amendment to clause 4 that would introduce a slightly greater element of objectivity, but I do not believe that that amendment is sufficient.

The Bill goes on to say that, "in particular", there must be consideration of a range of factors, all of which relate to predicted capacity or incapacity, participation in decision making,

"past and present wishes and feelings . . . beliefs and values that would be likely to influence his decision if he had capacity, the other factors that he would be likely to consider if he were able to do so", and the views of interested persons on

"what would be in the person's best interests and, in particular, as to the matters" just mentioned. Those matters to be considered "in particular" all relate, as can be seen, to subjective interests—desires, wishes, beliefs and values—not to the real dignity and value of the person's existence: life, health, and well-being as such. What is to prevent or even discourage those making such determinations from determining that it is in a patient's best interests not to receive treatment, that it is in the patient's interest to die because "That is what they would have wanted"? How many times have we heard that—even when a reasonable medical judgment would show that treatment would be neither futile nor unduly burdensome, but beneficial?

The Government say that medical professionals will continue to use the traditional concept of best interests, which includes the patient's interest in life and health as central elements of his or her real welfare, but is it reasonable to suppose that professional attitudes will not be affected by the subjective character of the Bill's approach to best interests? I remind the House that the ethics of the medical profession, as has been rigorously documented and demonstrated, were rapidly and profoundly affected for the worse by the Abortion Act 1967. I do not think that anyone could disagree with that statement.

Does the word "circumstances" securely imply a reference to the person's intrinsic interest in health and life? Will the medical insurers whose advice affects professional thinking regard it as safe for medical professionals to think in terms of medical best interests when proxies appointed under clauses 9 or 16 have made determinations relying on non-medical, subjective criteria? Is it not highly significant that those proxy decision makers will not be subject to the professional responsibilities and ethics that the Government presume will continue to apply to medical professionals? Is it even clear whether the new offence of ill treatment or neglect by a proxy will include improper determination of a patient's best interests, or refusing treatment on the basis of such an improper determination? How many doctors will have the time, energy and motivation to ask a court to override a proxy whose determination of best interests appears to them defective or questionable?

Photo of Julian Brazier Julian Brazier Shadow Minister (Foreign and Commonwealth Affairs)

I am most grateful to my hon. Friend for giving way in her powerful speech. Did she see the testimony in The Times only a week or two ago that related to a case where the doctors were continually pressed by the relatives who constantly visited a lady of 59, to give her more and more pain killers to a clinically dangerous degree? Only when she turned 60 and the relatives ceased to turn up, did the doctors discover that they had a life assurance policy to be paid if she died before she was 60.

Photo of Ann Winterton Ann Winterton Conservative, Congleton

I did not see that story, but it is horrific, and I am grateful to my hon. Friend for drawing it to the attention of the House. I had a letter from one of my local hospices to say that the only time that its staff have been pressed to end a patient's life more quickly than it would have ended naturally, or ended through the double effect, was when the relatives would have benefited from the patient's will.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

Does the hon. Lady accept that, in the example given by Mr. Brazier, it would be wholly wrong for a member of the medical profession to go along with such a request?

Photo of Ann Winterton Ann Winterton Conservative, Congleton

I believe that it would be wholly wrong for a member of the medical profession to go along with such a request, but the case is well documented, so it has happened. I did not see the story; I merely believe what my hon. Friend has said.

Photo of Ann Winterton Ann Winterton Conservative, Congleton

I intend to make a little more progress.

The Government say:

"It is not possible to introduce the concept of 'medical' best interests into clause 4 because the Bill does not only apply to medical situations."

Can that sensibly be thought an adequate reason? In the absence of amendment No. 1, there is a severe risk that the objective interest of vulnerable patients may be submerged by the wishes—now given statutory force—of persons who may have a conflict of interest with the patient, or by wishes, feelings and concerns of the patient that may now acquire statutory force, despite having been unduly narrowed or deflected by inclinations or external pressures towards self-destruction, or simply by lack of self-respect. How can it be right to leave such important elements of the Bill's central concept to be dealt with in a code of practice? Surely, all decisions taken in respect of the personal welfare of a mentally incapacitated patient must be in his or her best interests. Best interests is the pivotal principle in the Bill, so we must get the definition of best interests right.

Photo of Angela Browning Angela Browning Vice-Chair, Conservative Party

I think that I heard my hon. Friend say that she did not support amendment No. 2, but that defines very clearly that the fundamental assumption should be that the person's best interests are for his life to continue.

Photo of Ann Winterton Ann Winterton Conservative, Congleton

I gave the reasons earlier why I do not believe that amendment No. 2 is the right one to support because it poses the rhetorical question of whether we consider that person's life is worth while or beneficial. In my view, it should have referred to the treatment, so we have a slight difference of opinion.

Photo of Angela Browning Angela Browning Vice-Chair, Conservative Party

That is not what is written in amendment No. 2, on page 46 of the amendment paper. I wonder whether my hon. Friend will take a look at it again.

Photo of Ann Winterton Ann Winterton Conservative, Congleton

Yes, I shall, and I have amendment No. 2 in front of me. Let me read it out:

"He must, where the determination relates to life-sustaining treatment, begin by assuming", which is weak in itself,

"that it will be in the person's best interests for his life to continue."

The amendment would have been better if it said, "that it will be in the person's best interests for the treatment to continue"—a slight difference of opinion.

It is vital that an element of objectivity is introduced into the definition of best interests by making it clear in the Bill that the consideration of best interests must take into account the patient's medical or clinical best interests. In common law, the term "best interests" includes treatment given to save the patient's life, or to improve or prevent deterioration in the patient's physical or mental health. Surely, it is relatively simple to establish whether a given treatment is appropriate to saving life and preventing deterioration, for example. That can be proved reasonably objectively on the basis of evidence of a physical examination of the patient and expert testimony on the treatment proposed.

The disability rights groups are very concerned about the Bill's definition of best interests. Disability Awareness in Action says:

"The Mental Capacity Bill will permit appointed deputies, independent consultees and those given lasting powers of attorney to make serious medical treatment decisions based on the 'best interests' of the 'incapacitated' person. But how is 'best interests' defined? It can essentially be anything those making the decision want it to be. Past and present wishes and feelings of both the individual and their family can be taken into account. Guesses as to what the individual may have wanted! This is totally unacceptable when such decisions could involve the withdrawal of treatment."

For those and the other reasons that I have given, I believe that in the definition of "best interests" we must include the most essential element, which is the life and health of the person involved.

Photo of Mr Kevin McNamara Mr Kevin McNamara Labour, Kingston upon Hull North 2:30 pm, 14th December 2004

On a point of order, Mr. Deputy Speaker. A letter sent to the Lord Chancellor by Archbishop Peter Smith of Cardiff has just come into my hands. It seems to say that the Government have given an undertaking to him about the content of the debate today, which to some extent could terminate the Bill. He says:

"My understanding now is that you are giving an undertaking to make explicit in the Mental Capacity Bill that the Bill does not authorise any 'decision' where the motive is to kill, as distinct from relieving or preventing suffering or ending treatment where the patient is in an irreversible coma.

In the context 'decision' includes of course an act or omission, and extends to decisions made by proxies or others given powers by the Bill to decide whether or not a person is given life sustaining medical treatment. Any decision must be in the person's best interests.

I greatly welcome this undertaking—"

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. I think that I have got the general drift of what the hon. Gentleman is trying to say, but it is more of a contribution to today's debate than a matter for the Chair.

Photo of Tim Boswell Tim Boswell Shadow Minister, Economic Affairs, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Work and Pensions)

Further to that point of order, Mr. Deputy Speaker, I should be grateful if you could make inquiries about whether such a letter has issued from a Government Department without the Minister giving any intimation to the House that it was in his mind to do so.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. I think that we should continue the debate. The Minister will have the opportunity to wind up in a little while. No doubt he can deal with both points then. We are now taking time out of the debate. I think that Mr. McNamara wishes to catch my eye later, as do other hon. Members. He will not be lucky if we take up any more time now on the matter that he has raised.

Photo of Tom Clarke Tom Clarke Labour, Coatbridge and Chryston

The points that have just been made are crucial to the decision that the House might take later. It would be helpful if the Minister dealt with the second to last sentence in the letter from Archbishop Peter Smith, which says:

"I greatly welcome this undertaking which suitably worded on the face of the Bill will remove the substantial objection which I and many others have had."

It is vital that my hon. Friend the Minister should clarify whether that reflects the Government's position. The House is entitled to know.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

Does the right hon. Gentleman agree that it would be a contempt of the House if such an undertaking had been given and the House had not had the opportunity to express an opinion on wording of that sort during the Report stage of an important Bill?

Photo of Tom Clarke Tom Clarke Labour, Coatbridge and Chryston

We must not fuel the atmosphere. It is important that we take the right decisions. I have confidence that my hon. Friend the Minister will deal with the serious points in the way that the House would expect.

Photo of Tom Clarke Tom Clarke Labour, Coatbridge and Chryston

I will not give way too often because some of us are frustrated that, having served on the Standing Committee which considered the Bill, we may well be talking out others who gave equal time to the Bill at other stages. However, I will give way to the hon. Lady.

Photo of Angela Browning Angela Browning Vice-Chair, Conservative Party

In the context of the Archbishop's letter—he talks about best interests—has the right hon. Gentleman noticed that, in an amendment to amendment No. 2, the Government seek to delete the word "best"?

Photo of Tom Clarke Tom Clarke Labour, Coatbridge and Chryston

That is all the more reason why what the Minister has to say becomes profoundly important. I look forward to it.

I will now make the brief speech that I wanted to make at this point. In most of the debates, including Second Reading, I concentrated my remarks on the parts of the Bill that dealt with advocacy. I hope to have the chance to speak on that aspect later. That did not mean that I was not interested in the end-of-life issues. I am profoundly involved in all the discussions that are taking place, especially in my constituency, where I have received many representations and people are anxious to hear what we decide today.

The fact that I did not take part in most of those discussions in Committee did not mean that that was the position in Coatbridge and Chryston. I want to summarise what my constituents feel and what they expect from today's debate. It could become extremely complex. Indeed, very often in Committee, it did. We had opinion and counter-opinion, but I supported Second Reading in order to give the Government the opportunity to clarify where they stood.

I regret to say that I left Committee thinking that this was unfinished business on two crucial issues. That is why I am attracted to new clauses 1 and 2. I found very acceptable the views of my hon. Friend Jim Dobbin and of Mr. Duncan Smith. Although we could make the matter complex, it seems to me, having listened to hours and hours of debate, that there are two issues that need to be resolved, two issues that call for clarity and two issues that do not seem to me to be intellectually demanding.

On the issue of food and liquid—hydration and nutrition—have we made it clear that our priority is in respect of treatment and not of life? Have we made it clear that we are on the side of the patient until the end of his or her natural life? As this is all about perception, I want the medical profession to know where it stands. I do not want to see court case after court case. The obligation is on us to offer that clarity. That is one of two important issues on which simplicity invites itself. It is whether hydration and nutrition can be withdrawn legally—something that all of us, because we have said that we are opposed to euthanasia, do not want to see. We are entitled to an answer to that question. I am afraid that we did not get it during the whole process of consideration in Committee.

The second point was raised at great length in Committee and in the Second Reading speech of my hon. Friend Mrs. Curtis-Thomas. What is the mechanism for taking on board the view of someone who, at an early stage in their life makes a written will, gives their instructions, signs an advance directive or gives some indication that they want to do so and later changes their mind? Those were the two crucial end-of-life issues, and they have not been resolved.

Photo of Edward Leigh Edward Leigh Chair, Public Accounts Committee, Chair, Public Accounts Committee

The right hon. Gentleman is making a clear and cogent speech. The debate has been over-complicated, and he is trying to set matters right. Is there not a third point that has to be articulated strongly? It is surely the point of new clauses 1 and 2. The decision of proxies or the existence of the advance should not override the clinical judgment of a doctor, which at that stage may well be to preserve life and provide treatment.

Photo of Tom Clarke Tom Clarke Labour, Coatbridge and Chryston

If I were to follow what the hon. Gentleman says, I think that I would make things even more complicated. I have no desire to do that because I am trying to stick to the simple issues that have emerged after long discussions and on which I have received many representations from my constituents.

I plead with my hon. Friend the Minister to offer much more clarity on the two issues that I have raised than has been the case so far. Incidentally, I do not agree with my right hon. Friend Sir Gerald Kaufman because I think that Ministers acted before the Committee with great courtesy. Clearly, however, they are carrying out whatever Government directive has been given to them, although I know that they will take on board the strong views expressed by hon. Members on both sides of the House.

The scrutiny of the Joint Committee has helped our considerations. The Committee was headed by Lord Carter, who is a fine person, and was made up of Members of the Lords and Commons. On the Committee's advice, a clause to exclude euthanasia was included in the Bill. I accept that, but why then are people including representatives of the Church of England and the Catholic Church—until we receive an explanation about the archbishop's letter—still pressing for the clarification that I am seeking? I suggest that it is because they think that they have not received answers to the two simple questions that I posed. I also suggest that they rightly have it in mind that the Bill deals with a special group of people. All individuals in the group have a right to life, but nevertheless experience limited capacity. For that reason, they are entitled to even more protection from the House in our legislation than might otherwise be the case, and I hope that we will decide to give them that following today's deliberations.

Photo of Robert Key Robert Key Shadow Minister, Economic Affairs, Shadow Minister, Environment and Transport

At the beginning and the end of human life, science, medicine and technology are rapidly pushing out the boundaries of the possible. Humanity moves on, as must we, but we must decide where to draw the line on behalf of the people of this country. Only last week I met a constituent in the House of Commons who had been in a coma for a year following a vehicle accident. His parents had been asked whether they agreed to the withdrawal of his hydration and nutrition. They said no, and five years later that young man is running his own business in Salisbury.

Fortunately death is no longer a taboo in this country, and we have heard moving personal testimonies to that today. Our personal experiences always colour the way in which we think about such matters and no doubt the way we vote. I am no exception to that. I recall having to make a life-and-death decision about my baby son while my wife was under sedation—that was one of the loneliest decisions I ever had to make, although I am confident that I made the right one. Many of us have seen our parents dying, and I saw my dear sister-in-law dying from motor neurone disease, so I have my own opinions, just as I have my own faith to cope with that. However, what about the views of others? We must all have been influenced by the views of charities, the Making Decisions Alliance and other people and organisations who have been in touch with us.

I shall vote to give the Bill its Third Reading, but first, on behalf of my constituents, I want to try even at this late stage to improve it. We in Salisbury are fortunate to have the Salisbury hospice care trust, which is made up of a group of dedicated professionals and clinicians who are held in the warmest esteem throughout our community. Indeed, I think that they are part of our extended family in Salisbury. I held conversations only this morning with several retired professionals who had worked in palliative care. I also asked a practising sister on the ward and a consultant in palliative care for their views this morning. Perhaps the views of such people have not been heard to a great extent—they have certainly not been heard so far in this debate. The doctor said that advance directives were helpful because, as he put it, they help professionals to know what makes a patient tick. Forward care planning is seen as a good thing from a clinical point of view because it opens up lines of communication that would otherwise not exist. However, there is great concern about the validity of advance directives that were made 20 or 30—or even five—years previously. We need solutions to the problems that patients will face as they come closer to death.

Photo of Andy Burnham Andy Burnham PPS (Rt Hon David Blunkett, Secretary of State), Home Office 2:45 pm, 14th December 2004

The hon. Gentleman mentions patients making choices as they get closer to death. Does he accept that in some cases, albeit not all, a powerful survival instinct takes over meaning that patients can display amazing powers of recovery of which they might not have been able to conceive? Does that not emphasise the purpose behind the amendment tabled by my hon. Friend Mr. Howarth: when possible, the presumption should be in favour of saving life?

Photo of Robert Key Robert Key Shadow Minister, Economic Affairs, Shadow Minister, Environment and Transport

I entirely agree that the presumption must be in favour of life.

As the clinical staff put it to me, they face the problem of "demedicalising" end-of-life care when they know that they can do nothing further. Once again, they are taking a new view as medical technology moves on—it is doing so rapidly. I have never spoken to anyone in the hospice movement who is in favour of euthanasia, but it is a sign of the times that end-of-life care is changing in the way in which the Bill represents.

I have been greatly moved by what my constituents have said. I was pleased that Church of England bishops, in addition to the Roman Catholic Church, expressed concerns in the past year or so. Church of England bishops tell us that difficulties remain with withholding and withdrawing assisted feeding and hydration. They have been in touch with many hon. Members about amending the Bill by including a presumption in favour of continuing life-sustaining treatment, yet not requiring such treatment in inappropriate circumstances. As the Bishop of St. Albans said in a letter to The Times this morning:

"If such clarifications can be put in place we would conclude that the Bill's safeguards in this area are probably satisfactory."

It is important for us to realise, as the bishop says, that the

"Bill deals with complex and difficult issues on which morally sensitive people can disagree."

There has not been a great deal of disagreement in the debate thus far. I believe passionately that the House of Commons is the place in which such debates should be held. On beginning-of-life issues, we know about the tangle into which the Human Fertilisation and Embryology Authority has got because it is has been asked to do too much within the framework of existing legislation, which has meant that the Government have had to review it. We do not need bioethics committees, but debates of this calibre in the House, with the one difference that all hon. Members should have a free vote.

I shall support new clauses 1 and 2 because it is important to probe the Government to find out whether they are prepared to go the extra mile. If they win the vote, I have no doubt that the matter will be reopened in another place. The Bill is important and I am quite sure that it should receive its Third Reading after 15 years of debate in the country. However, we do not yet have the assurances that we require to be completely confident about it, so we look to the Minister to give us such confidence this afternoon.

Photo of Mr Kevin McNamara Mr Kevin McNamara Labour, Kingston upon Hull North

Thank you for calling me to speak, Mr. Deputy Speaker. I am glad that I did not go on for too long before.

The letter that the Archbishop of Cardiff has sent to the Lord Chancellor in reply to his earlier letter will greatly affect the decision of many hon. Members. The situation would have been helped considerably if my hon. Friend the Minister had been able to give us some indication of the position at the start of the debate. If we had known that, it would have saved a lot of problems. Indeed, as my right hon. Friend Sir Gerald Kaufman said to me earlier, it seems rather like the Government have lost a lot of the credit that they could have had on the matter by apparently holding on to the end. We have had to see an acrimonious row among their supporters before reaching a sensible conclusion.

Photo of Mr Kevin McNamara Mr Kevin McNamara Labour, Kingston upon Hull North

My hon. Friend spoke for more than half an hour, but I hope to speak for less than 10 minutes.

The Government's attitude makes nonsense of some Government amendments—for example, the amendment that would remove the word "best" from an amendment dealing with a person's best interests. We have an undertaking that these matters will be dealt with in the Bill, but regrettably that will occur in the other place again, not in this place, before the elected representatives.

The Archbishop states:

"I accept that the Bill as thus made more explicit will leave unaffected the jurisdiction of the Courts affirmed in the Bland case", so there is no change from that case. Mr. Duncan Smith said that he would have liked to see that change and so would I, but that was part of the arrangements that were made. The undertaking that we have received is an important one.

I therefore welcome the decision. It makes a good Bill a very good Bill. A Bill that would help us to look after and care for people less fortunate than ourselves was asked for by all the non-governmental organisations that care for people with mental illness or mental incapacity. Those requests have now been met. Removing the fear of euthanasia by omission, as the Government have now specifically and directly undertaken to do, and writing that into the Bill is an important step forward and to a large extent overcomes the major prinicipled objection that I and others had to the Bill.

There are other matters to which the Joint Committee on Human Rights, of which I am a member, drew attention in its last report. The Committee wanted advance directives to be in writing. I hope we will get that. The Committee stated that

"the classification of artificial nutrition and hydration ("ANH") as treatment may not be well known to lay people. The requirement that an advance directive specify the particular treatment for which consent is refused in advance should mean in practice that a specific advance refusal of ANH would be required in order to be effective."

The Committee wrote to the Minister about that, and I hope the reply that we receive will address both matters.

The undertaking given by the Minister seems to back the decision of the High Court in the Burke case. One wonders whether the Government are helping the General Medical Council in its appeal against that case. In respect of withdrawal of treatment where there is no advance directive, the court pointed out that the guidance fell short because it seemed to accept that ANH can be withdrawn from patients who are not dying, if they are in a "very serious condition", and that it can be enough to justify withdrawing ANH from a patient who is not dying if it "may cause suffering" or be

"too burdensome in relationship to the possible benefits".

Important articles of the European convention on human rights are involved—article 2, on the right to life; article 3, on cruel and undignified treatment; and article 8, on dignity and privacy. The criticisms advanced by the Committee seem to have been met by the Government.

Photo of Bill Cash Bill Cash Conservative, Stone

The letter to which the hon. Gentleman refers mentions that the Bill does not authorise any decision where the motive is to kill. Will he compare the word "motive" with an alternative, such as "deliberate consequence"? Motive is a difficult matter to deal with. Does he agree that the words "deliberate consequence" might be better?

Photo of Mr Kevin McNamara Mr Kevin McNamara Labour, Kingston upon Hull North

That is a matter for the parliamentary draftsman. The archbishop may be a distinguished social theologian, but he is not a parliamentary draftsman. I think the archbishop and the Lord Chancellor know what they mean in this matter. The motive must be to end the life. The question has always been whether the withdrawal of treatment is to end the life, and not what is in the best interests of the patient and is not burdensome.

On new clause 4, the failure of my hon. Friend Mr. Howarth to define "palliative care" will give lawyers a field day, whereas new clause 2 makes clear what is meant by "palliative care". Having seen the agreement that has been reached between the Government and Archbishop Smith, I will not vote against new clauses 1 and 2, but I will not vote for them because of the good will that I expressed to the Government for the undertakings that they have given.

Photo of Tim Boswell Tim Boswell Shadow Minister, Economic Affairs, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Work and Pensions)

I shall speak briefly, as I am conscious that the Minister has a good deal of explanation to give to the House. I begin by reminding the House that there will be a free vote on all occasions today for my party, as there is for the Liberal Democrats and others on the Opposition Benches. The nature of the exchanges today has perhaps taught the Government that on issues of conscience it is well worth offering hon. Members a free vote. The Government may find their response and the debate more constructive, and the Government may have had an easier ride if they had done that.

Photo of John Redwood John Redwood Shadow Secretary of State for Deregulation

Has my hon. Friend been given a copy of the text agreed between the Lord Chancellor and the archbishop? Is this not a farce of a debate if we cannot have the words that the Government might want us to look at when we are arguing about other words, not knowing whether their amendment will be good enough?

Photo of Tim Boswell Tim Boswell Shadow Minister, Economic Affairs, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Work and Pensions)

I want to compress my remarks, but I shall come to the point that my right hon. Friend has raised.

My second concern is the unwisdom of trying to force through a measure with inadequate time for debate. We could either oppose the programme motion, thereby wasting further time, or get on with it. With a little more consideration, we might have got on a lot better. If we had had the letter that enshrined an agreement reached by the Lord Chancellor with the archbishop yesterday, which is now expressed in a letter from the archbishop to the Lord Chancellor today, and if the Minister had at least been able to tell the House at the beginning of the debate three hours ago that he intended to speak to amendments along those lines, that would have been extremely useful.

In response to my right hon. Friend Mr. Redwood, I must point out that there is no specific text yet. Anyone who has spoken, including Mr. Howarth, who has gone to great trouble to try and hammer out consensus in the matter, has been hung out to dry by the very recent decisions that have been taken.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

The hon. Gentleman may feel, uncharacteristically, that he has to make the point that he has just made, but if the agreement takes matters forward, I will not feel that I have been hung out to dry. I will feel that we have achieved something.

Photo of Tim Boswell Tim Boswell Shadow Minister, Economic Affairs, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Work and Pensions)

I entirely share the hon. Gentleman's sentiments. If only we had had the information three hours ago, we could have gone on to other concerning issues such as research and had more time to debate the Bill. However, let us not waste time on that now.

The genesis of the debate lies in what might be termed the legal defence—the argument that the concept of "best interests" already exists in common law, that advance decisions are permitted under common law, that euthanasia is explicitly prohibited by law, which is enshrined again in clause 58, and that euthanasia should not be divided as between acts of commission or omission, both of which are unacceptable under law. That is agreed, but there is, nevertheless, concern about how the law works in practice.

For a modern statement of the position, I refer the House to the judgment reported in The Times law report on 9 December, in which the Court of Appeal considered and upheld a judgment by Mr. Justice Coleridge in relation to a person who lacked capacity. Rather than reading out the text, I shall summarise: it is clear from that judgment, which was upheld, that the withdrawal of non-intrusive hydration or nutrition in the absence of either an unequivocal advance decision, which did not apply in that case, or any conclusion by the court either that the person was in a permanent vegetative state or that the continuation of life would be intolerable would neither be permitted under the present law nor sanctioned by the Bill.

That comforts lawyers, but real world concerns exist. First, past practice has often been uneasy and, frankly, disturbing. Secondly—Dr. Iddon spoke eloquently about this—there is a euthanasiast agenda, which must be watched all the time and is not acceptable to this House.

New clause 1 would introduce a separate test from the treatment provisions in relation to purpose. Personally, I would have preferred it to specify "the purpose" rather than "a purpose". From what I have seen of the text that the Government are considering, the word "motive" may appear rather than "purpose". However, the plain fact is that if one is considering matters of deliberate killing, motive is important as well as delivery, which might occur through the withdrawal of treatment.

New clause 2, which I have signed and find acceptable, would stiffen the requirement on treatment. The hon. Member for Knowsley, North and Sefton, East worked long and hard to produce compromise amendments, which would have been helpful if we did not have the full text. Liberal Democrat amendment No. 46 is also acceptable in principle.

The interesting amendments have already been referred to. I give the Government some credit for the objective test of relevant circumstances. I hope that the Minister understands that my amendment to his amendment is designed to put the burden on the decision maker of taking reasonable care to ascertain the circumstances rather than simply saying that they did not know anything about the case and could not therefore have taken the circumstances into account. I hope that the Minister will reflect on that specific point.

We have all piled in with additional safeguards. My safeguard would ensure that any person who signs an advance directive is, as the Joint Committee on Human Rights suggested, clearly apprised of its implications for artificial nutrition and hydration. We await the Minister's response to the letter, which is due by tomorrow and has not yet reached the public. I also hope that he will consider the issue of instructions in writing—I cannot see why advanced decisions should not be in writing.

I have compressed my remarks because the House has spoken for itself in its concern about those matters. We would all vote for greater and better safeguards than those so far offered by the Minister. This is not a good way to proceed and we could have saved ourselves a lot of time. However, the hon. Member for Knowsley, North and Sefton, East is right to say that it is better to get on with it now. If we get the matter right at the end of the day, the process will not concern us.

We want further safeguards, which should not operate at the expense of the person without capacity. At the same time, they should not operate at the expense of either doctors or carers, because we do not want to create an unworkably intrusive system. We want to strengthen the Government's resolve and are irritated by the way in which the matter has been handled. The most important thing is to get the matter right for everyone concerned. We look forward to the Minister's response.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs) 3:00 pm, 14th December 2004

I am grateful to Mr. Boswell for indicating that the important point is that we get the spirit right. We are debating the Mental Capacity Bill because we are concerned about protecting vulnerable people. Although today's debate has centred, rightly, around the difficult issue of what happens to vulnerable people as they approach the end of their lives, we should not forget that the entirety of the Bill concerns carers, parents and doctors who deal on a day-to-day basis with people who have Down's syndrome or autism and those who have had a stroke or been injured in car accidents.

My right hon. Friend Mr. Clarke, Mr. Duncan Smith, my hon. Friends the Members for Knowsley, North and Sefton, East (Mr. Howarth), for Heywood and Middleton (Jim Dobbin), for Bolton, South-East (Dr. Iddon) and for Crosby (Mrs. Curtis-Thomas) and the hon. Members for Sutton and Cheam (Mr. Burstow), for Congleton (Ann Winterton) and for Southport (Dr. Pugh), along with many others, have been engaged in the discussion on a Bill that will help up to 2 million people.

The crucial issue at the heart of this afternoon's discussion is the interface between euthanasia and assisted suicide and the Bill. The Government have proposed clause 58 because of the work of the Joint Committee on Human Rights. The Bill categorically states that nothing in the Bill is outside the law on suicide, manslaughter and murder.

Several hon. Members:

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Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

We have also sought to work with the Catholic Church. We have introduced amendments on advanced decisions and objective measures.

Photo of Helen Jones Helen Jones Labour, Warrington North

The letter that the Minister has circulated from Archbishop Peter Smith welcomes the undertaking given by the Lord Chancellor, but states:

"which suitably worded on the face of the Bill will remove the substantial objection which I and many others have had."

That would satisfy me and many hon. Members. Will the Minister give an undertaking that he will discuss the wording with both the Churches and hon. Members? The amendments will be tabled in the other place, so will he also undertake to make sure that there is sufficient time to discuss them when the Bill returns to this House?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

Yes, absolutely. Let us not forget that the Bill began 15 years ago under another Administration. We have continued the dialogue and have engaged in discussions with both my right hon. Friend Jean Corston, the Chairman of the Joint Committee on Human Rights, and Peter Smith. Notwithstanding the detail on the purpose amendment, which we will get into shortly and which centres on new clauses 1 and 2 in particular, the Government are with the sentiment behind those new clauses, but the wording and unintended consequences would cause some problems.

Photo of Ms Jean Corston Ms Jean Corston Chair, Human Rights (Joint Committee), Chair, Parliamentary Labour Party, Chair, Human Rights (Joint Committee)

The Minister knows the concerns of the Joint Committee on Human Rights, which I chair. We were particularly concerned about advance directives. People who are required to sign advance directives would have to say that they agreed to the withdrawal of treatment. We are concerned that they will not know that treatment includes artificial nutrition and hydration, which would put people, and sometimes their medical carers and families, in an impossible situation. Will he undertake to introduce measures to make sure that people give consent, that consent is independently witnessed and that the procedure is agreed throughout the medical profession? The consent should be in writing or, for people who are unable to write, some form that gauges intention.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I am grateful to my right hon. Friend, as is the Lord Chancellor, for our continuing discussions on this issue over the past few weeks. I can give her that undertaking. She will know that we put it in the code of practice, which has statutory power under the Bill. However, she has tried to see to it that advance decisions in relation to life-sustaining treatment are covered by the Bill, and I can give her that undertaking on the basis of what her Committee has said.

Photo of John McFall John McFall Chair, Treasury Committee, Chair, Treasury Committee

It was my intention to vote for new clauses 1 and 2, but given the appearance of the letter from Archbishop Peter Smith of Cardiff and the commitments that seem to have been given, I ask the Minister to assure me that the spirit of new clauses 1 and 2 will be embraced as the Bill goes to the House of Lords and that constructive engagement will take place so that those who have objections can feel assured that they are being taken seriously.

Several hon. Members:

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Several hon. Members:

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Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. I do not think that the Minister intends to give way at the moment. It would be helpful if he indicated whether he intended to give way to hon. Members when they stand.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I intend to make some progress so that I can explain the situation that we have reached today.

I am of course sympathetic—

Photo of Crispin Blunt Crispin Blunt Opposition Whip (Commons)

On a point of order, Mr. Deputy Speaker. I think that it is important that this letter be clarified. Helen Jones said that it had been circulated by the Minister, in which case he should simply say whether it reflects the position of the Government; that would assist everybody.

Several hon. Members:

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Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. It would be helpful if the Minister were allowed to continue to clarify these matters.

Photo of John Redwood John Redwood Shadow Secretary of State for Deregulation

On a point of order, Mr. Deputy Speaker. Would it be possible for us to have the Lord Chancellor's letter, as it is the most relevant document and it is missing from this debate?

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

As I understand it, arrangements are now being made for it to be available in the Vote Office.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

It is precisely because I want to explain the position that we have reached today that I am going to make some progress.

Photo of Bill Cash Bill Cash Conservative, Stone

On a point of order, Mr. Deputy Speaker. It seems to me that these proceedings are degenerating into something of a shambles. I am personally very much in favour of new clauses 1 and 2, but in the light of this letter, could we look to you to give us some guidance on the manner in which any amendments that are received in this House from the House of Lords properly reflect the matters that are being discussed? We do not want to find, I am sure, that inadequate time is given in this House to consider these vital matters, whatever the House of Lords may have to say.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

The hon. Gentleman is an experienced Member of this House, and he will understand that we will consider whatever amendments come back from the House of Lords in the normal way.

Several hon. Members:

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Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. I do not want to stifle points of order, but time is running out, and I think that the Minister should be given the opportunity to respond. It would be helpful if he directed his remarks to the letter that seems crucial to the debate.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

I am sorry to intervene on my hon. Friend, but in view of the assurances that he gave to my right hon. Friend Mr. McFall, unless he can give a further explanation I will feel obliged to press amendment No. 2 to a vote.

Photo of Mike Hancock Mike Hancock Liberal Democrat, Portsmouth South

On a point of order, Mr. Deputy Speaker. Further to what you said about the letter to the Lord Chancellor being made available to Members in the Vote Office, may we have an assurance that if it is not available before the vote at 3.30, the Minister will read the letter to the House before he concludes his speech?

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

I am not in a position to direct the Minister in this debate, but I think that he should now be allowed to make his response.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

Thank you, Mr. Deputy Speaker.

I am of course sympathetic to hon. Members' concerns when they say that they do not want decisions surrounding the end of life to be motivated by a desire to bring about a person's death.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I recognise that real reassurance is needed here. It is for that reason that we have continued to work with the Catholic Church to achieve that.

Several hon. Members:

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Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

That is why, as a result of the discussions in Committee—

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. The Minister really must obey the Chair. When Members stand in the House and ask the Minister to give way, it is helpful to the Chair if he indicates whether he intends to do so. Hon. Members are asking him whether he will give way, and he must indicate yes or no as he is speaking; otherwise, we will have Members standing up all over the House and we will not make the progress that the House wants to make.

Several hon. Members:

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Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I am not going to give way, because I must make some progress and cover these important issues.

As a result of the discussions in Committee and outside the House, the Government tabled amendments Nos. 4 and 5, which enhance the best interests clause and deal with the points that were made by my hon. Friend Mrs. Curtis-Thomas to ensure that someone does not substitute—

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I will not give way.

They will ensure that someone does not substitute their own decision for that of the patient. I hope that hon. Members will read amendments Nos. 4 and 5, which will ensure that the provision is more objective.

On the purpose clause and on palliative care, it is important—I say this particularly to the right hon. Member for Chingford and Woodford Green—that others proposed an amendment that would rule out any decision made with the purpose of causing death. I assure the right hon. Gentleman that we have looked hard at that amendment, and we have continued to work on it, particularly with the Catholic Church, but the problem with it centres on the issues of palliative care and of purpose, in that the definition, as framed, includes artificial hydration and nutrition. That would contradict Bland. The right hon. Gentleman has been clear that he is against the Bland decision, but the vast majority of people, including the archbishop himself, have sought not to overturn it.

Several hon. Members:

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Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I will not give way, as I want to make some progress and I am running out of time.

The other key aspect of the amendment addresses the issue of offering pain relief to someone at the last stages of life, such as an elderly person with cancer who is given morphine where that may well hasten death but that is not the intention.

Photo of Tim Boswell Tim Boswell Shadow Minister, Economic Affairs, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Work and Pensions)

On a point of order, Mr. Deputy Speaker. I have just sent messengers out to the Vote Office, which has indeed circulated further texts of the letter to the Lord Chancellor from the archbishop. Apparently, however, it does not anticipate the receipt of any text of a letter from the Lord Chancellor to the archbishop.

In these circumstances, and given that there are 12 minutes left for debate, the Minister—if I can concede a point to him—will have some difficulty, however hard he tries, in explaining this without a text. All this has arisen because we are under a tight programme motion. I believe that it would be open to Government Front Benchers now to move an emergency modification to it. Will they reflect on that, because at least it would give us a little thinking time to try to get the matter resolved?

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

That is a matter mainly for debate, although I have to say that it would be much simpler had the letter been before the House before the debate started. I am loth to get involved in the proceedings from the Chair, but I do think that the Minister should direct his remarks to the questions that are being asked about the letter that seems to have played such a great part in our affairs this afternoon.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I am attempting to do that and, in so doing, explain the discussion that has been going on between us and others, including the Catholic Church, on the amendments. Offering pain relief to someone with cancer would not be covered by "burdensome" and other issues.

Photo of Mrs Helen Liddell Mrs Helen Liddell Labour, Airdrie and Shotts

I am grateful to my hon. Friend for giving way and I hope to give him an opportunity to cut to the chase. The letter that we have received this afternoon from His Grace Archbishop Smith clearly responds to several commitments that the Lord Chancellor has made. It would greatly assist those of us who are in some doubt about whether to support new clauses 1 and 2 if my hon. Friend gave us the gist of the Lord Chancellor's commitments and read the comments of Archbishop Smith into the record. We could then end the debate harmoniously.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

That is exactly what I intend to do. I want to explain that we have been seeking agreement and that discussion has, quite properly, taken place about such important subjects. Provisions arose out of the Bland decision and the 36 cases that followed.

Photo of Patrick McLoughlin Patrick McLoughlin Opposition Deputy Chief Whip (Commons)

On a point of order, Mr. Deputy Speaker. The letter to the Lord Chancellor from the Archbishop of Cardiff states:

"I am grateful to you for our conversations yesterday, for your letter this morning and our subsequent conversation."

That letter should be in the public domain. We are asking for that and the Under-Secretary should make it available. He has made available a copy of the letter to the Lord Chancellor but what about the letter from the Lord Chancellor?

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

It is clearly the Government's duty and that of Ministers to make available to the House all official Government papers that are necessary for the House to debate such serious matters properly and reach the right decisions.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

We have continued discussions and tried to meet hon. Members' concerns and the archbishop has made his point and said—

Photo of Frank Field Frank Field Labour, Birkenhead

On a point of order, Mr. Deputy Speaker. Do not you feel that there is an element of farce in the proceedings, given that we are insisting that advance directives should be clearly stated, understood and witnessed, yet we are about to vote on a crucial aspect of the Bill without seeing the documents?

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

From the Chair, I am doing my best to make sense of the proceedings this afternoon. I have said more than once to the Under-Secretary that it is clear that all hon. Members believe that the precise—[Interruption.] Order. We are considering serious matters and people outside will not take kindly to our not being more orderly. The letter that hon. Members mention is clearly crucial; its precise terms are crucial. Hon. Members are entitled to expect—[Interruption.] Order. I hope that the Under-Secretary will deal precisely with the contents, which have now become central to the debate.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

His Grace wrote:

"I am grateful to you for our conversations yesterday, for your letter this morning and our subsequent conversation.

My understanding now is that you are giving an undertaking to make explicit in the Mental Capacity Bill that the Bill does not authorise any 'decisions'"—

Several hon. Members:

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Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. [Interruption.] Order. The House and the Minister must appreciate that when the occupant of the Chair stands, everyone else must resume their seats.

Photo of Iain Duncan Smith Iain Duncan Smith Conservative, Chingford and Woodford Green

On a point of order, Mr. Deputy Speaker. We are about to vote on the new clause. I suspect that the Government have circulated the archbishop's letter in the hope that many Labour Members will not vote. It is therefore critical that the Under-Secretary now reads into the record the undertakings that the Lord Chancellor has given to the archbishop. Surely the Under-Secretary must give a guarantee that the undertakings will form a substantive element of the Bill when it goes to the other place.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

That is not precisely a point of order for the Chair. [Interruption.] Order. Hon. Members who have participated in the debate will have now seen the letter's contents and the part that they have played in our discussions. It is up to all hon. Members to make up their minds about the whole position when they cast their votes.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. Time is running out. I shall not take any more points of order for the time being. I want the Under-Secretary to have the opportunity, in the few minutes that are left, to respond to the debate.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

If I may finish reading the Archbishop's letter, I shall then read the Lord Chancellor's letter. The Archbishop's letter continues:

"In the context 'decision' includes of course an act or omission, and extends to decisions made by proxies or others given powers by the Bill to decide whether or not a person is given life sustaining medical treatment. Any decision must be in a person's best interests.

I greatly welcome this undertaking which suitably worded on the face of the Bill will remove the substantial objection which I and many others have had."

The Lord Chancellor's letter to the Archbishop states:

"Further to our conversations we agreed that neither of us want the Mental Capacity Bill to authorise any decision where the motive is to kill, as opposed to relieving or preventing suffering, or ending treatment where the patient is in an irreversible coma. Any decisions must be in the patient's best interests.

I believe that this is clearly its effect, but we will seek to make it explicit in the Bill.

As you made clear to me on the telephone, and in your briefing note, the Bland decision is unaffected by the Bill."

We have sought not to affect the Bland decision and the 36 cases thereafter and we have had to continue dialogue for that reason. I am pleased that we have reached a form of words that enables us to table an amendment that will provide that, when a determination relates to life-sustaining treatment, the decision maker must not be motivated by the desire to bring about a person's death regardless of what is in that person's best interests. I am convinced that that fully covers the concerns that surround new clauses 1, 2 and 4.

Photo of Stephen Byers Stephen Byers Labour, North Tyneside

I understand that the Lord Chancellor's letter does not state that "decision" includes acts or omissions. Will my hon. Friend confirm that it is the Government's intention, in line with Archbishop Smith's letter, that "decision" will include acts and omissions?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I can absolutely confirm that to my right hon. Friend. As I said, the dividing line between assisted suicide and acts of omission is the reason for the dialogue. We have ensured that our lawyers have worked together to achieve the outcome.

Photo of Ann Winterton Ann Winterton Conservative, Congleton

Will the Government include food and fluids, however delivered, in the definition of act of omission?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I have said that we engaged in that dialogue with Archbishop Peter Smith. The Bland decision defines artificial nutrition and hydration as medical treatment, as the hon. Lady knows. Nevertheless, we want to make it clear in the Bill that doctors cannot withdraw treatments against the best interests of an individual and that acts of omission would be contrary to the intention behind the measure. We have tried to do that.

Photo of Mike Hancock Mike Hancock Liberal Democrat, Portsmouth South

Will the Minister explain why it was not possible to table a suitably worded amendment this afternoon, on which the Commons could have voted before the Bill goes to the House of Lords?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

There have been ongoing discussions, and we are dealing with a decision by the House of Lords. Government lawyers have disagreed with the Catholic Church in particular about the effect of new clauses 1 and 2. We have now concluded that the decision must take as its starting point the assumption that it is in the person's best interests for life to continue. Those making the decision must not be motivated—as opposed to having the purpose—by the desire to bring about someone's death, regardless of what is in their best interests.

Photo of Jim Dobbin Jim Dobbin Labour/Co-operative, Heywood and Middleton

This is very confusing for everybody. Despite the clarifications that the Minister has offered us, we are still confused. I accept what he said about omission, but will he make the position clear on the withdrawal of food and fluid, which is the essential point?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I must say from the Dispatch Box that we are not seeking to undermine Bland. That is precisely what Archbishop Peter Smith and Cardinal Cormac Murphy-O'Connor said—the Bill does not seek to undermine Bland. We want to ensure, however, that under the Bill it is not possible for someone by omission to act to assist suicide or euthanasia. That is the position that we have reached and that is the nature of the discussion that we have had today.

It being half-past Three o'clock, Mr. Deputy Speaker, put the Question already proposed from the Chair, pursuant to Order [this day].

Question put, That the clause be read a Second time:—

The House divided: Ayes 203, Noes 297.

Division number 11 Orders of the Day — Mental Capacity Bill — New Clause 1 — Excluded decisions

Aye: 203 MPs

No: 297 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly negatived.

Photo of Patrick McLoughlin Patrick McLoughlin Opposition Deputy Chief Whip (Commons) 3:45 pm, 14th December 2004

On a point of order, Mr. Deputy Speaker. You were in the Chair during the closing stages of the debate when a letter from the Lord Chancellor became crucial to the House's deliberations. We were informed that the letter would be available in the Vote Office. It is still not available in the Vote Office; I have just been there to check. However, I did see people hand a copy of a letter, from a Box in the Chamber, to Government supporters and Government Whips. It was then passed along the lines. That letter is from the Lord Chancellor to Archbishop Peter Smith. It is dated 14 December. The letter back to him from Peter Smith is also dated 14 December.

The point of order for you, Mr Deputy Speaker, is whether it is right that a document that became so crucial to the debate was made available only on the Labour Benches and was not made available in the Vote Office, as we were told it would be? Is that not a gross discourtesy to the whole House?

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Let me say to the hon. Gentleman and the whole House that it is crucial for us to conduct our affairs in the House in an orderly manner, not just for our own sakes in terms of debate and reaching the right decisions, but because people outside the House are watching our proceedings and are very concerned about the decisions that we reach.

It is vital, too, that any document relating to and important to the debate that we are having should be before Members in all parts of the House before the debate starts. Officials are in the House to advise Ministers; they are not here in any way to distribute material that is not available to every Member of the House before the debate starts. I hope that Members in all parts of the House, particularly on the Government side, will have learned lessons from today's debate—which has not been organised as things ought to be organised here—and that this kind of thing will not happen again.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. I will take no more points of order. I think we have dealt with the matter sufficiently for now.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

On a point of order, Mr. Deputy Speaker. This may not strictly be a point of order, but it might be helpful to the House to know that my hon. Friend the Minister is content to accept my amendment

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. The hon. Gentleman is clearly starting to develop his argument all over again. This is not a point of order for the Chair. I call Mr. Andrew Turner—but apparently he has decided not to pursue his point of order. What a blessing.

Mr. Deputy Speaker then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.