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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 Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs) 2:30 pm, 25th January 2005

I apologise to the noble Lord if I failed to look at him with the appropriate glance, but I was indeed listening with great interest. I am sorry that he was modest in not telling us immediately about those words. I would be very grateful to borrow the book from the noble Lord at some point.

In speaking to the government amendments and in winding this debate I feel I must become a philosopher, a lawyer and a doctor in seeking to try to address all the points raised. It is important to begin by saying what my purpose is. It is as always for me important in Committee to have the opportunity to listen with great care, to respond where I can and to fulfil my commitment to consider what has been said. I will do that consistently throughout the Committee stage.

I was grateful for the comments that have been made about the way in which we have sought to deal with the Bill in the House. I can promise that I will continue as I have begun. I completely accept what the noble Lord, Lord Patten, alluded to: Parliament is sovereign in the determination of the Bill. It is noble Lords who will make the decisions about what may or may not be sent back to another place.

I am none the less grateful for all the interventions I have been fortunate to receive from different individuals and organisations. They range from the Archbishop of Cardiff, who has been extremely helpful, to the 39 organisations that form the Making Decisions Alliance, through to many noble Lords, Members of another place, individuals and organisations, particularly the BMA, the GMC, the Royal College of Psychiatrists, hospital doctors I have had the good fortune to meet and many others. It is in that spirit that I stand before the Committee today.

We will consider carefully the report of the Joint Committee on Human Rights that we received yesterday. We are clear that doctors must assess the objective question of "best interests" when considering the options available, particularly life-sustaining treatment. We will consider whether there is yet more we can add to Clause 4, in addition to government Amendment No. 13, to address the points that have been raised by the committee. However, we have not yet had a chance to consider the report in detail. I also wished to make sure that we had the benefit of this debate today.

Before I begin to weave my way through this rather large group of amendments—with a wry hint, as I was hoping that someone would degroup it, but, sadly, members of the Committee liked it—I shall deal with the questions that have been raised as best I can. I am sure that the Committee will not let me forget anything.

For the benefit of noble Lords who were not present at Second Reading, I shall make two or three key points about the Bill. It is about empowerment and protection. It is about the individual. It is also about the loved ones—those who care for individuals who may and do lack capacity—and the professionals who operate with them. It is not about euthanasia or assisted suicide. That is clear in what is in the Bill; it is also clear if one reads and understands the spirit of the Bill and the way in which it has been framed. I am really sorry about some of the press reports that have maligned an incredibly important piece of legislation. I know that the Committee will see those reports in that light.

The Bill recognises the autonomous nature of human beings. It recognises that they can be unwise. It recognises that an advance decision, properly made, with all the safeguards that we have put in place—we will discuss those as the Bill proceeds through Committee—is a way of expressing that autonomy for people. If one knows that one is going to lose capacity directly, or if one recognises that one might lose capacity, an advance decision is, in a sense, a way of expressing personal autonomy. The critical factor for our professionals, especially our medical staff, is that, if there is any doubt whatever about the advance decision, they must err on the side of treatment and operate as good clinicians and physicians do. We have built in much better safeguards than currently exist in common law.

The entire Bill is framed around the question of "best interests", which is an objective, not a subjective, test. It is not about what you or I or we may think about somebody's life. It is objective particularly in the context of the treatment given to the individual. That goes some way to addressing the point raised by the noble Earl, Lord Howe.

In opening the debate today, my noble friend Lord Brennan, spoke to a range of amendments, which I shall summarise briefly. I understand the intention behind the amendments—to add more protection for vulnerable people, especially where end-of-life decisions are concerned. My noble friend was concerned in particular that the Bill would make suicidal decisions more likely to succeed, putting the medical profession and other third parties in an extremely difficult position.

The amendments seek clarity on whether the principle of "best interests" applies to advance decisions to refuse treatment. They look at how "best interests" might be applied to young adults, as opposed to children, in the transitional phase between 17 years 11 months and 18 years, to which the noble Lord, Lord Alton, referred.

Amendment No. 97 would make it clear that no decision could be made with the primary purpose of bringing about the death of the person concerned, unless it would cause the person harm or be unreasonably burdensome.

Together with the noble Baroness, Lady Finlay, the noble Lord, Lord Alton, wants to see an explicit reference to the consideration of a person's life and well-being when a determination about best interests is made. They would like a statement in the Bill that no decision is permitted where the sole purpose is to bring someone's life to an end.

The noble Baroness, Lady Barker, supported by the noble Earl, Lord Howe, put down an amendment which, although it would apply to every "best interests" decision under the Bill, is particularly relevant to the important debate on end-of-life decision-making. Specifically, they want to make it clear that not only must those determining best interests reasonably believe that they have acted in someone's best interests, they must be able to demonstrate it.

In response to those concerns and other requests for reassurance sought at Second Reading by the noble Baroness, Lady Chapman, my noble friend Lord Clarke of Hampstead, the noble Baronesses Lady Masham and Lady Hanham, the noble Lord, Lord Maginnis, and Members of another place, I tabled the amendments standing in my name. They specifically address the concerns of those who want the Bill more explicitly to protect the most vulnerable people of all. They will make it clear in the Bill that when someone is making a "best interests" determination about life-sustaining treatment, they must not be motivated by a desire to bring about the person's death.

The noble Earl, Lord Howe, referred to the amendment tabled in another place by my honourable friend George Howarth. I give credit to my honourable friend for his work on the amendment. In the discussions and deliberations on that amendment, it was clear that there were real concerns about what was meant by the amendment and whether we could build on it, reflecting the spirit of what my honourable friend had done but taking it a step further.

On Report in another place, my honourable friend the Minister, Mr Lammy, said that we would table amendments to provide the clarification that stakeholders—particularly, but not exclusively, the Catholic Church—were seeking. As members of the Committee who were present at Second Reading will know, my noble and learned friend the Lord Chancellor confirmed that we would table those amendments. As the Archbishop of Cardiff indicated in letters and as I know from conversations with noble Lords, that fulfils the specific commitment made by my noble and learned friend in the letters of 14 December to which the noble Lord, Lord Patten, referred, and which I have ensured are copied to noble Lords.

In seeking to give the reassurance that has been sought, I must explain what the amendments will do. I completely understand what the noble Lord, Lord St John of Fawsley, was saying when he read from the book, and the issues that he and the noble Earl, Lord Howe, raised about mens rea and actus reus—concepts that I have had to get to grips with. The amendments are not designed to change the current law, but to make it transparently clear what is not part of any "best interests" determination.

The way in which noble Lords, including the right reverend Prelate the Bishop of Oxford, have dealt with this issue today reflects exactly the conversations and debates that took place in determining how we should address the concern and what we sought to do. We were asked to put something in the Bill that would be clearer about the best interests issues, not about changing the law.