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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

"Irrational" may be unwise; "wholly irrational" is inconceivable in terms of giving it effect. You would not accept it in your own family or community. Why should the state accept it as a right of citizens? There is a plain difference. The word "wholly" is used clearly and has force.

I turn to Amendment No. 16. As I said, the word "not" should be deleted otherwise there is a double negative. The purpose of the amendment is to produce the following considerations. We are concerned with the implementation of advance decisions or comments made in the past to which effect may be given by a court. What attention is to be paid to the circumstances from which such comments or decisions are made? I give two examples.

I am told by a medical friend that each year over 80,000, and possibly as many as 100,000, cases of self-harm, drug overdose or attempted suicide occur in this country. The vast majority involve no intention that death should occur; they are attention-seeking calls for help. But those people are often living in a state of distress, sometimes permanently. They are just the kind of people who would make advance decisions that might be thought to reflect their desire for self-help: "Look at my advance decision". Should we look at such an advance decision from a suicidal background? Is that a proper implementation of personal autonomy or is the doctor not to be allowed to look at it?

Next, let us suppose that the background to the decision is influenced by a carer, the family, or whoever, for financial motives, and that what was said was unknown on the face of the advance decision or on the evidence before the court but by reasonable inquiry eventually emerges. Are those factors which may involve financial motives to be ignored and the will of the patient to be given free implementation by the court regardless? I ask the question rhetorically. Are these not very serious matters for us to consider?

The last amendment, Amendment No. 19, is simple. If I am wrong about the law I am ready to be corrected. If I am right—it may be that I am not—the following situation appears to prevail under the Bill. If you are under 18 years of age the Court of Protection will determine your best interests in terms of treatment; that is, what is too burdensome, whether it is futile or whether, in the case of children, it produces a life that is completely intolerable. However, when one reaches 18, Clause 4 of the Bill has a wide-ranging basis for determining best interests that do not include considerations of what is too burdensome, futile or intolerable. If I am right, I wonder how that is to work. A person of 17 years 11 months has the benefit of a stricter regime but at 18 years one month he moves into the context of the Bill. I hope that I am wrong and that the Minister will correct me. If she is unable to do so today or at some later stage, this is a very unusual state of affairs. Rights and choice should be applicable across the board without distinction.

Members of the Committee have been very patient. I shall now finish. I am happy to conclude by welcoming government Amendment No. 13. It reflects a considered response by the Government to the great concerns expressed that proxy decision-makers and medical staff should not be involved in circumstances which give effect to a suicide. That is a welcome step forward, for which the Government are to be commended. I hope that they will pay similar, kind attention to my Amendment No. 88, which requires the same consideration to be applied to the person himself not just to a proxy decision-maker or a doctor.

I thank noble Lords for their attention. These are serious matters. The amendments should not occupy our time by being dissected legally. I have raised issues for Members of the Committee to be conscious of when we consider the many complex and important provisions of the Bill. I beg to move.