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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 Patten Lord Patten Conservative 2:30 pm, 25th January 2005

I support Amendments Nos. 11, 97 and 99 standing in the name of the noble Lord, Lord Alton. However, I want, first, to congratulate the Minister on what I understand to be exemplary consultation and discussion on these issues. The circulation of papers at the earliest stage consistent with the speedy timetable of this House is very different from the unfortunate scenes in the other place, about which I read, during the dying days of discussion on the Bill there. Archbishops' letters were fluttering like confetti down the green Benches and Members were holding them up saying, "I have a letter here and it is all going to be all right. It will be sorted out in the Lords". We are beginning to see that today.

That scene led to the most withering put-down of any government Minister in another place by Sir Gerald Kaufman on his own side, but my natural delicacy prevents me from repeating those words. Therefore, may this careful consideration continue in a timely way in order to engage everyone and give them enough time to consider these points.

In relation to government Amendment No. 13, we have another archbishop's letter, which is extremely important. I am sure that the Minister, who can only just have seen it, will consider carefully what Archbishop Peter Smith says when he writes:

"The concern on which we have focussed in our most recent discussions with the Lord Chancellor relates to valid written advance decisions by persons who are not dying but who want to kill themselves. Faced with an unconscious suicidal patent whose life they could save, doctors might be forced to do nothing because of the legally binding advance decision forbidding them to treat. They are then having to stand by and effectively assist a suicide when they could stop it succeeding. We believe that an amendment is needed to send a clear signal that the Bill does not give validity to expressly suicidal advance decisions".

The archbishop appears to have parked his tanks on the noble Baroness's lawn. In the need for amendment to the Bill, and after due consideration and toing and froing, I hope that that will be brought about. However, the Minister may want to remember that, ultimately, it is not archbishops and external pressure groups who decide the fate of Bills—it is your Lordships in this Chamber. I remember clearly when a deal was made between Church and state, in this case the Roman Catholic Church and the state, on the "quickie divorce" legislation. A deal had been made between my noble and learned friend the then Lord Chancellor, the Roman Catholic Church in the shape of a bishop and the late Duke of Norfolk that the legislation was fine, entirely consistent and should continue. It was thought that it would be plain sailing but it turned out not to be the case at all.

The noble Lords, Lord Alton and Lord Carter, and others will remember how the Bill was changed radically in this place and in another place. Indeed, soon after this Government came to power, in their wisdom they saw fit to consign the Act to the legislative dustbin. Therefore, what matter most are the discussions in your Lordships' Committee and at later stages.

Those friendly warnings having been made, I want to turn to Amendment No. 11 to Clause 4 in the name of the noble Lord, Lord Alton. I strongly support what he says because the Government have held that medical professions will continue to use the traditional concept of best interest, which includes the patient's interests in life and health, as central to his or her welfare.

However, I wonder whether it is really reasonable to suppose that professional attitudes will not be affected by the deliberately subjective interpretation of "best interests" which characterises the Bill. For example, does the use in Clause 4(1) of the word "circumstance" securely imply a reference to the person's intrinsic interest in health and life? How many doctors will have the time, the energy and the motivation, let alone the resources allowed them by their local health authority or whatever, to ask a court to override a proxy whose determination of best interests appears to that doctor to be questionable or defective? And of course, there is the issue of time passing while legal process unwinds.

Therefore, in the absence of Amendment No. 11, there is a real risk that the objective interest of vulnerable patients may be submerged by the wishes now given statutory force by the Bill of persons who could well have a conflict of interest with the patient; or by the wishes, concerns and feelings of a patient that may now acquire statutory force, despite having been unduly narrowed or deflected by inclinations; or by external pressures towards self-destruction, lack of self-respect; or any of the other dozens of reasons that can be adduced.

I shall pose the first of two questions which I hope the Minister will seek to answer today. 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? I do not believe that it is right to leave these matters to be dealt with in codes of practice. Such matters should be specified on the face of the Bill, so that when it becomes an Act it is of absolute clarity. Will the Minister respond on that point?

Lastly, I turn to Amendments Nos. 97 and 99. The Bill would remove responsibility and, therefore, liability from doctors to act in the best interests of incapable patients, without placing any duties of care on the replacement decision-makers. Thus, when an attorney is appointed, no one bears ultimate responsibility for a decision that may be clinically negligent or perverse. The incapacitated adult would have no legal remedy for such certain abuses of power, as they seem to me, even if he indicated that he wished for nutrition or water.

Although I greatly respect the work that has been done prior to the Bill reaching this stage, that is why I am not sure that I am convinced by the argument of the right reverend Prelate the Bishop of St Albans that because learned men and women have discussed this over many years and have come to this or that judgment, that judgment does not need the further refinement of your Lordships' House in Committee. After all, that is what we are here for.

Clause 58 does not, by itself, solve the problem. The noble Lord, Lord Alton, has already told the House that the noble Lord, Lord Filkin—I pay tribute to the Minister for what he did in your Lordships' House in this regard—confirmed in correspondence:

"If a proxy wanted to refuse consent to a treatment and the doctor thought that this was with the intention of murder or manslaughter then the doctor could continue to treat".

If that is what the Minister, in his previous ministerial incarnation, said—and I guess from the way that the noble Baroness is nodding her head that she is indicating assent with what her noble friend said—then why not make it crystal clear in the Bill by including an amendment along the lines that are suggested in these amendments?

I am never quite sure that the full weight of Hansard is taken into account in courts of law in this country and whether the fact that a Minister has said something outside the Chamber that has been read into the record of Hansard can be taken into account by the courts. We rely on the good will of the noble Lord, Lord Filkin, and the good will and the integrity of the Minister. But that may not be enough in future years. I believe that there should be an amendment turning the already elegant, crisp and clear words of the noble Lord, Lord Filkin, into law. They should be on the face of the Bill. The amendment proposed would also send a most desirable message to all concerned that certain intentions have no place in healthcare or in the Bill, just as they have no place in any other part of life.

In conclusion, the Government's good intentions are not what matters about the Bill. I do not doubt the Government's good intentions or the good intentions of those bodies that are interested, the Making Decisions Alliance or whoever. What matters is how health professionals interpret what the law says while they are taking their sometimes agonisingly difficult decisions and, later on, how the courts will interpret the end result. As currently drafted, the Bill will allow the withholding and withdrawing of assisted feeding and hydration from incapacitated patients where health professionals and proxy decision-makers consider their lives to be futile. Rather than the question being, "Is this treatment worth while?" it becomes, "Is the patient's life worth while?". That, to me, is the critical point.