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Mental Capacity Bill

Part of the debate – in the House of Lords at 3:15 pm on 1st February 2005.

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Photo of Earl Howe Earl Howe Shadow Minister, Family, Shadow Minister, Health 3:15 pm, 1st February 2005

I am very grateful to all noble Lords who have contributed to this short debate and to the Minister for her reply. I found it encouraging as the inclusion of a suitable provision in the code of practice is a very important building block in the wall. I say to the noble Lord, Lord Christopher, that the word "person" appears in the amendment because I had in mind a case not unlike that mentioned by the noble Baroness, Lady Warnock, where it was a nurse who had a specific conscientious objection. It is not always a doctor in these situations.

As I mentioned, I also had in mind the Abortion Act, which has a provision more or less along these lines within the statute. Therefore, I felt that it was not inappropriate to have a similar provision in this context. The Minister may be able to contradict me, but it seems to me that there is a difference between what we are looking at here and the Abortion Act.

What we are looking at here is potentially a legally binding advance decision on the part of the patient. One might find that a doctor did not feel able to conform to that decision on conscience grounds. If he then elected to opt out using the conscience clause, he should have the certainty that he is not legally liable. That is a different situation from the Abortion Act where there is no question of a legally binding decision, merely a clinical decision that the doctor does not feel able to go along with. But there is a question of legal liability here. I would be very grateful if the Minister could look into that point.

I shall reflect on all the points made, particularly the points made by the noble Lord, Lord Alton, and the noble Lord, Lord Winston, because I understand their concerns. No doubt this is a matter that we shall revisit at a later stage of the Bill.