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Mental Capacity Bill

Part of the debate – in the House of Lords at 3:45 pm on 1st February 2005.

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Photo of Lord Turnberg Lord Turnberg Labour 3:45 pm, 1st February 2005

In Amendment No. 92 the noble Baroness, Lady Knight, expresses a not unreasonable anxiety that patients lacking capacity would be denied food and water regardless of whether they had made an advance directive and whether it would be of benefit to them. But the Bill seems riddled with safeguards to ensure that the idea of denial of sustenance to all and sundry could not be realised. The whole of Clause 4 describes best interests, and Clauses 5 and 6 set out how care should be provided.

The provision is applicable only in the case of patients lacking capacity who have made an advance directive that can stand up to proper scrutiny, in which they have expressly indicated that they do not want to have fluid and nutrients forced upon them through a gastric tube through their nose, a gastrostomy tube through their abdominal wall or even an intravenous fluid, none of which is absolutely free of complications. Even here the medical attendant who feels that some benefit could be derived from providing fluid and nutrients, can give it. But if patients gain no benefit, putting tubes into them against their express wishes could well be regarded as common assault in a person who had capacity, and we should not deny that right to people who lack capacity.

There is one area in which I agree wholeheartedly with the noble Baroness: relief of suffering is the absolute bedrock of good medical care. The denial of fluid and nutrients by mouth in the horrific stories that she described is bad practice; indeed, the Bill goes some way to trying to prevent some of that bad practice.

The other amendment in this group suggests that food and water should be given unless it is harmful or unduly burdensome to the patient. That goes some way to meeting my concerns, but I am not entirely convinced that it is necessary to state it in the Bill. There are two or three situations in which that consideration might be relevant. For patients for whom food and water are beneficial—the vast majority of patients—it is clearly wrong, and likely to be a criminal offence, not to give it. Then there are patients for whom, perhaps because of nausea, vomiting or difficulty in swallowing, giving nutrients by mouth could cause harm and be unduly burdensome. It is important to be able to give those patients nutrition by other routes such as a gastrostomy tube. Indeed, it may well be essential to do that, even though there are complications in some patients.

On the other hand, there are patients who have given a firm, advance directive that they do not want artificial nutrition should they be in a particular state and lack capacity to refuse it at the time. Why should we deny patients who lack capacity the facility to refuse artificial nutrition in an advance directive, when we cannot refuse a person who has capacity? For that reason, I do not find this particular amendment entirely attractive; it is covered elsewhere in the Bill.