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Mental Capacity Bill

Part of the debate – in the House of Lords at 4:15 pm on 1st February 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) 4:15 pm, 1st February 2005

We have had one of the most important debates on this Bill and I am extremely grateful to all those who have contributed to it. Many noble Lords have testified to the importance of the legislation in its aim to ensure that it protects and empowers individuals who lack capacity, thus enabling the right decisions to be made on their behalf. I shall begin by agreeing with the noble Lord, Lord Alton, in expressing on behalf of the whole House our concern for my noble friend Lord Winston's mum. Under the circumstances, it was amazing that my noble friend remained in his place to raise these issues. It is important for us to hear from him both as an individual and in his professional capacity.

I also want to make a point which may have already arisen. I am very conscious that we have referred repeatedly to the Bland judgment. It is time to send our wishes to the family of Tony Bland. They have seen his name used as a judgment over the years, but I am sure that no Member of the Committee needs to be reminded of the essential person that was Tony Bland. We should send our good wishes to his family. In no way should we suggest that we have forgotten that Tony Bland was a young man with his whole life ahead of him.

I want to clarify the context of that judgment. There was a difference of view among the judges. Although nine judges were unanimous on the outcome of Mr Tony Bland's position, they disagreed on the legal analysis. Some Law Lords said that the definition of ANH as medical treatment did not matter. So neither the noble Baroness, Lady Knight of Collingtree, nor my noble friend Lord Carter were wrong in what they said; they merely referred to slightly different elements of the Bland judgment.

I shall go through the amendments and endeavour to address some of the concerns raised. I shall do so with a complete recognition that there is much on which we agree; the question is how we get there. The points of disagreement—some of which have already been raised—will become very clear. In essence, noble Lords have raised a clear underlying issue, either from their personal experience or from the experiences of those they know and love, about the quality of care that is offered to people.

There is absolutely no doubt in my mind that we need to make sure that the care offered to patients is of the highest possible quality. I have felt very strongly about that during the course of listening to your Lordships in this debate, from reading the debates in another place and from discussing the issue with many organisations and individuals. We need to think further about ensuring that high quality care is always provided.

Let us be absolutely clear that where it is in the best interests of a patient, food and water—however delivered—should never be withheld. I have made it very clear that the best interests test at the core of the Bill is critical. As has already been said, in the vast majority of cases of course it is in the interests of patients to provide them with food and water. We must accept, too, in the analysis of the care that is given and the ways in which we provide succour, that patients who may not be able to eat and drink, but who should have their mouths moistened, should not suffer deprivation of the kind to which the noble Baroness, Lady Knight of Collingtree, referred. We are in absolute agreement: it is absolutely essential that such care is provided. I think that all noble Lords who have spoken in their professional capacities as doctors or experts in other fields would agree with that.

As with any other medical intervention, if artificial nutrition and hydration is withheld when it is clearly in the best interests of the patient, the clinician could be prosecuted for gross negligence, manslaughter or even murder. The Bill does not change that basic position. Where it is right and proper and in the best interests of the patient that it should be provided, it must be provided.

The Bill requires all decisions to be made in the best interests of the patient. This means that the Bill will help to ensure that people are given food, water and pain relief according to their best interests. For the first time—and this struck me when my noble friend Lord Winston was speaking—it gives a statutory right for families, carers and friends to be consulted. I do not know about other noble Lords, but I thought that that provision was there anyway. It is not—but it will be. Such people will be consulted.

As noble Lords have indicated—particularly in the examples given by the noble Baroness, Lady Knight of Collingtree—it has often been the patient's spouse, friends or loved ones who have said "Hang on a minute, what is happening here?". Now they will have to be consulted. We need to be clear about that important point.

I know that noble Lords feel passionately about the question of whether or not artificial nutrition and hydration is a treatment. I was grateful for the opportunity—the noble Lord, Lord Alton, referred to this point—to invite the chair of the BMA Medical Ethics Committee and Mr Rob George from the Centre of Bioethics and Philosophy of Medicine, an expert in palliative care, to talk to noble Lords who were available to attend. I have sent out copies of the presentation to some noble Lords. If any noble Lords have not received copies, I shall be happy to send them and, indeed, to set up another conversation. I found it extremely helpful and useful.

What came out of that for me is that ANH is a treatment because of what goes alongside it. I am putting this in laywoman's terms and I hope that those who are expert in this field will forgive me for doing so. I say that is what I took away from it because ANH runs the risk of high infection, you have to monitor for fluid balance, you have to take blood to monitor the kidneys and you have to look at concerns such as diarrhoea, regurgitation, nausea and vomiting. In other words, without being too specific, there are real issues concerning the provision of artificial nutrition and hydration which make it a treatment in the eyes of the medical profession. It is what goes with it that creates that opinion.

So that, in a sense, is why we have to consider ANH and why we are concerned to ensure that people are very clear about the treatments and circumstances they are discussing when making advance decisions. We have already said that people need to be clear and specific when they are considering making an advance decision on a treatment that could be life-sustaining.

I say that because I have also learnt on the way to the Bill something that I probably should have known: that is, that many treatments can be life-sustaining depending on the circumstances. We have mentioned antibiotics but there are many other treatments. Even artificial nutrition and hydration can be used in hospital care but not necessarily in life-threatening situations. For example, it could be used where someone needs to be sedated for a period of time in intensive care. It need not be in a life-threatening situation—if the patient did not have it he would not die—but perhaps it is beneficial and helps the patient to recover more quickly and so on. So ANH by itself is not always a life-sustaining treatment.

We have sought in the Bill to be very clear that if a person is going to make an advance decision about a treatment that could be life-sustaining he has to be prepared to say "I do not want that treatment even if my life is at risk". So the person not only has to name the treatment and the circumstances but he also has to indicate that it applies even if his life is at risk. That is a very important safeguard. As my noble friend Lord Carter said, we need to be clear that that has been dealt with.

I turn now to the amendments of the noble Lord, Lord Alton, and the noble Baroness, Lady Finlay, who I know is not in her place. We would have welcomed her interventions but I am sure that we shall hear further from her as the Bill continues its progress. I know from what the noble Baroness, Lady Masham, said that noble Lords are concerned about trying to define, in a sense, this basic care and the issue about what is available to people. Amendment No. 98 seeks to define that.

Noble Lords who have known me from the other parts I have played in the life of your Lordships' House will know that I have a real aversion to lists. That is because, without exception, there is always the difficulty that you leave something off a list. Basic care is a classic case because it will differ from one individual to another. So I shall resist lists because it is not in my nature to accept them, particularly on the face of the Bill.

That does not mean that I do not accept what Members of the Committee seek—that is, to be as clear as we possibly can that we should not deny proper care and treatment to some of the most vulnerable people in our society. I share that aim. It is why I am a strong and passionate supporter of the Bill. For a number of the reasons that I have already given about involving families, about being clear about a doctor being able to treat and about being clear about what an advance decision is, I resist the amendments. I do not want to narrow the definition of care. I know the Committee will recognise that it is in that spirit that I resist the amendments.

What we are seeking to do is not very different from what noble Lords are seeking to do. I accept that the noble Baroness, Lady Knight of Collingtree, does not agree with the verdict in the case of Mr Bland, and that is an acceptable position to hold. But it is not the position of the Government; we believe that the process involved in those very difficult individual cases is right. Some noble Lords may not agree with the outcome but accept that the process is right, and that is important too. That is probably the biggest area of difference between us.

We are at one in wanting to ensure that people receive basic high-quality care and that treatment is not denied unless it is absolutely clear that it is not in the best interests of a person to receive it, such as the kind of circumstances about which my noble friend Lord Winston talked. Most importantly, within this, there is something about each individual case. Doctors involved in the care of people at the end of their life say that a day-by-day, hour-by-hour, sometimes minute-by-minute, series of decisions is made, working with the patient and the family to give the best high-quality care.

Inevitably, the unintended consequence of the amendments would be that people would have to have treatment when it was inappropriate and would not be able to make the kind of clear decisions—whether noble Lords like them or not—that we can all make now, as autonomous people. They would define basic care in a way that would not help us. However, I accept that we need to do more within the code of practice and with what comes out of the Bill, because I do not think that every clinician or every nurse in every facility will read these provisions to make sure that they get it right.