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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

The term is "countenance" this afternoon, which is a very good word.

The noble Baroness, Lady Finlay, talked about emergency situations in obstetrics and women refusing caesarean sections. There would be no change in the law. The courts would continue, as they do now, to make a ruling in the woman's best interests if she lacked capacity. If she has made an advance decision, it will be clearer and safer under the Bill, as the decision will not apply unless the strict formalities in the Bill have been used. That makes the position safer than it is now. We expect to continue to deal with emergency applications as necessary. The noble Baroness will know better than I do that hearings can be by phone and in the middle of the night if necessary; that practice will continue.

The noble Lord, Lord Patten, talked about the duty of care and there being no legal remedy if there is an attorney. An attorney has a duty of care to the patient—to P—in the well established law of agency, which will now be a statutory duty to act in P's best interests. If treatment is withheld in response to an attorney's decision, the attorney may be liable, even in gross negligence manslaughter. The doctor still retains the duty of care to P; that is not changed by the attorney in any sense. That is how we have sought to be clear about what an attorney may or may not do. That goes back to the clinician and the duty of care, and the "best interests" objective test.

The wishes of consultees also have no part to play in Clause 4. It is their views on P's best interests that are to be considered. As I said, "best interests" means what is best for P. It is not right to suggest that that excludes the promotion or improvement of health, because it must include that. I have already talked about whether the patient's life is worth while. The point is not the patient's life, but the treatment being in the best interests of the patient. That is another reason why we resist Amendment No. 11, because it would refocus us on the value of the person's life, rather than looking with greater clarity at the treatment.

The letter from my noble friend Lord Filkin about a doctor who thinks that an attorney is acting in a way that could be murder or manslaughter has been quoted. That takes us to the heart of the matter. I agree with what he said. It is also why doctors seek rulings from the court, which is important in ensuring that a doctor can continue to treat a patient while seeking the advice of the court if he has a concern. The ability to treat will be enshrined in this statute, which is important.

The noble Lord, Lord Walton, raised the changes in medicine in relation to advance decision. It is already clear in Clause 25(4)(c) that, where circumstances have changed—that includes where changes in medical practice or medicine have changed—there is no question but that the clinician can say, "The circumstances that prevailed when the advance decision was written no longer apply. We have a new drug. That treatment is not applicable". We shall come on to other examples when we deal with that provision, and I hope that they will make it clearer.

I have addressed as many of the issues as I can think of, and no one is leaping up to tell me that I have not. My final comment is on Amendment No. 18, which exists because an error has crept in. The word "his" should not be there. The reason I want to take it out is that in the case of a pregnant woman we want to ensure that the life of the baby, not only the life of the mother, must be considered. I have no doubt that that change will be welcomed by all Members of the Committee, but I wish to explain that it is purely a drafting error that has crept in. If left in, it means that the life of a baby would not be considered and I am sure that no noble Lord would want us to be in that position.

This Bill celebrates life and, as the noble Baroness, Lady Barker, said, is about living and how we live. That is what we seek with this Bill. It is about what is in people's objective, best interests, not about disregard for their lives. However, I respect the fears and concerns raised and always want to respond positively. I think that we are all geared to getting the Bill through in the best possible order. It is in that spirit that I shall take away and read through the points raised and promise to answer any questions that I have failed to answer at the Dispatch Box today, so that noble Lords can respond. I shall move the government amendments recognising that noble Lords may want to return to them at Report. In that spirit, I hope that the noble Lord will feel able to withdraw the amendment.