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Mental Capacity Bill

Part of the debate – in the House of Lords at 2:30 pm on 25th January 2005.

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Photo of Lord Brennan Lord Brennan Labour 2:30 pm, 25th January 2005

Some Members of the Committee will find this group of amendments of considerable importance. I commend the Government on the consultation and care that they have exercised in listening to all the different views expressed about this important and serious piece of legislation. In particular, my noble friend Lady Ashton has been assiduous in ensuring that she not only listened to what Members of the House had to say, but wrote to us individually, that we should know her thinking on the part of the Government. At Second Reading, I invited your Lordships to conclude that this was the kind of Bill that would most benefit from reasoned debate in Committee and on Report, because its substance is so important to the fabric of a civilised and moral society.

I propose to speak to Amendments Nos. 1, 16 and 19. They are generally related, in that they go to the question of the philosophical foundation of this legislation. I start with Amendment No. 1. Unusually for a piece of legislation, the Bill sets out principles in Clause 1. Those principles reflect not legalistic conclusions but sentiments thought best to express the way in which our society views mental capacity, mental incapacity and the very grave decisions that fall to be made when someone becomes incapable of dealing with their own affairs or health.

Amendment No. 1 adds words to Clause 1(4), which presently reads:

"A person is not to be treated as unable to make a decision merely because he makes an unwise decision".

The reasoning behind that is straightforward. Amendment No. 1 seeks to introduce for the Committee's consideration matters which any expression of common sense—any sentiment of the best interests and common good of a society—would want in the Bill. It therefore adds,

"but any decision, whether unwise or not, is inapplicable and invalid if it is . . . wholly irrational in the opinion of the", treating doctor or the person or court, who has to make a decision based on a sentiment expressed by the person years before or in an advance decision. Such a decision should not apply if it is "wholly irrational".

It seems difficult to conceive of how society can responsibly accept the implementation by a doctor or a court of a decision that was properly so described. In administrative law by way of analogy, the courts refused to apply government subsidiary legislation that was wholly irrational, defined as involving legislation or a decision which no reasonable person could ever have reached. My amendment is not from some rarefied source, but from the thinking that exists at present about the proper way in which society should work; namely, that it should not be saddled with the consequences of wholly irrational decisions.

The question that arises in that context is whether personal autonomy should apply, even if that autonomy has been expressed wholly irrationally.