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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 Turnberg Lord Turnberg Labour 2:30 pm, 25th January 2005

I should like to comment briefly on Amendment No. 1, which stands in the name of my noble friend Lord Brennan and which deals with the principles of the Bill. It is here described what is meant by a person lacking capacity and points out that a person who makes a wholly irrational decision would not be considered by the Act.

People who have capacity, I am afraid, often make wholly irrational decisions. When they conflict with society, we have a variety of laws to deal with them—to a variable extent, I have to say, but they are there. A circumstance in which the amendment might become relevant is if a wholly irrational advance directive is made. As and when the person who made the irrational decision—a person who was originally not lacking in capacity—comes to lack capacity, there is an issue whether the decision was wholly irrational at the time.

I am all in favour of the idea of principled autonomy as against absolute personal autonomy, but I foresee problems with the amendment. I agree entirely with the noble and learned Lord, Lord Mayhew, about the judgment that has to be made about "wholly irrational". It is to be decided by the medical practitioner responsible for the treatment or any other decision-maker, including the court. That of course puts an enormous burden on those people and becomes problematic immediately because at least some of them will judge something as "wholly irrational" where others would not.

There are then problems about whether one should go against an advance directive which suggests that the person making it wishes to not have his life continued by burdensome treatments at the end of his life. Would that be considered wholly irrational by some and not by others?

The whole area is far too difficult to put in the words of the amendment. I am much more in favour of government Amendment No. 13.