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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 Baroness Barker Baroness Barker Social Services, Non-Departmental & Cross-Departmental Responsibilities 2:30 pm, 25th January 2005

I rise to speak to Amendment No. 17, which is in the group. I have listened with great care and attention to all four preceding speeches, which precisely encapsulated the detailed arguments considered by the Joint Committee. Having listened to a wide range of advice—including that from faith groups—the Joint Committee concluded, for the reasons so eloquently set out by the noble Lord, Lord Carter, that the Bill did not encourage euthanasia by the back door, and that it should be based on the practical implementation of some very deeply held principles.

I was interested when the noble Lord, Lord Alton of Liverpool, talked about Scotland because this section of the Bill in particular was shaped and influenced by the experience of people in Scotland responsible for the drawing up and enactment of the Adults with Incapacity (Scotland) Act 2000. I do not believe that that Bill, any more than this, was motivated by a desire to bring about the sorts of scenario that have been alluded to. As a member of the Joint Committee I take grave offence at some of the implications made in the press—not only for my own sake, but also for people such as the noble Lord, Lord Carter, who we know is a man of great faith. Conducting the debate in that manner does not help us.

I share many of the concerns raised by the noble Lords, Lord Brennan and Lord Alton. I am deeply concerned about issues such as undue influence, and they will see, having studied the list of amendments before us, that we have sought to address the very real concerns about the matter. However, our starting point is different. The noble Lord, Lord Brennan, talked at one point about there being no absolutes. For me, and for those I have followed in my thinking about the Bill, perhaps the paramount principle is that people must be treated as individuals. That is key to everything that flows out of this. We need to set a legislative framework in which people are never treated as a class in terms of their human rights or in their care and treatment. For me, the importance of the Bill is that it treats adults who lack capacity as individuals, and from that flows everything else. Every decision taken under the Act has to be an individual decision in relation to one person, and it has to be based on those principles.

I therefore find myself in disagreement with the noble Lord, Lord Brennan. I listened with great care to what he said about acts being wholly irrational. Would that those people who have capacity were subject to a law that demanded of them, and those round them, that their decisions always be rational. They are not. I take to heart what the right reverend Prelate the Bishop of St Albans said because this is not just a Bill about life, it is about living. It is a Bill about the way in which people who lack capacity live their lives as members of society, and about how society treats them with dignity. Therefore, although one would not have assumed so from the opening of our debate, it covers all of life in its glory and, sometimes, in its basic, day-to-day operation.

That is why we are right to follow the example of those people in Scotland who first looked at having a Bill that was based not just on principle, but on those principles. The right to make unwise decisions should be afforded to people who lack capacity, because it is a right that those of us who do have capacity exercise every day—although not to the degree of severity that has been talked about already.

I turn briefly to my Amendment No. 17, which is about the need for somebody who makes a decision on behalf of someone who lacks capacity to demonstrate that it is in his best interests. The Joint Committee spent a great deal of time talking about best interests. We were blessed with several members who were lawyers and we talked a great deal about evidence. How does someone who makes a decision on behalf of another person show that that decision is in that other person's best interests? Decisions may not be straightforward. Decisions which are in someone else's best interests may be extremely complex.

I thought about requiring people who make decisions to produce evidence, but immediately it was argued, "We don't want people making day-to-day decisions for someone to be liable to have to demonstrate that in front of a court". I came up with a phraseology to highlight one point. When describing their lives and the lives of those they look after, carers—particularly those caring for people who lack capacity—demonstrate throughout why they do what they do. Carers are always explaining to other people what they do, especially in terms of treatment but also on mundane questions of why they chose to buy particular clothes for someone who lacks capacity. It reflects best practice.

I suspect that when we discuss the matter the Minister might be tempted to argue that there may be a burden on carers to have to demonstrate that their decisions were in someone's best interests. But I do not believe that it would be a burden. I believe that many carers would find the requirement useful. A requirement on the face of the Bill to demonstrate an activity enables them, when they come into contact with care providers, to have ready at hand the reasons why they take decisions and to have them taken into account. Many carers would find that extremely valuable.

I suspect that the amendment is not elegant and it may be rejected for technical reasons. But even for serious decisions, such as in cases of terminal treatment, I remain of the view that in this framework Bill it is good to require of decision-makers that they demonstrate in whatever way and at whatever level required why they believe something is in the person's best interests. Therefore, I hope that the Minister will consider the amendment.