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Mental Capacity Bill

Part of the debate – in the House of Lords at 7:30 pm on 1st February 2005.

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Photo of Lord Turnberg Lord Turnberg Labour 7:30 pm, 1st February 2005

I shall speak to my Amendment No. 120. Subsection (9)(a) of the clause applies in an emergency situation where it is not possible to get immediate agreement from the categories of individuals laid out in earlier provisions of Clause 32. In this case, it allows researchers to seek the agreement of a registered medical practitioner. However, the wording specifically excludes the patient's own doctor—the one who is caring for the patient is excluded. This seems a little odd, as the noble Earl has suggested, because I suspect that many, if not most, patients would be glad if it was their own doctor who was asked for agreement. He is likely to know more about them than another doctor who happened to be passing by.

Furthermore, it is conceivable, according to the wording here, that one of the researchers who was medically qualified could provide the agreement. That is not excluded, but clearly it would be wrong. The researcher should not be in a position to give himself or herself permission to do the research. My amendment removes the idea that the patient's own doctor cannot provide the agreement, and it inserts the safeguard that it cannot be the researcher who gives agreement for the research to be done. There is a potential problem if the researcher also happens to be the clinician in charge of the patient. We need something else to cover that situation which is not covered in any of the amendments. We may have to think about that.

The amendment proposed by the noble Earl, Lord Howe, Amendment No. 121, would achieve more or less the same objective as my amendment and spells out more clearly that the researcher should not be involved in giving permission. I am certainly not wedded to my own form of words. With regard to Amendment No. 119, I wonder whether it would be necessary to insert this amendment specifying the type of research if Amendment No. 120 or Amendment No. 121 were accepted, since we would then have the safeguard that the researcher himself or herself could not give approval.

I am concerned that some research in the emergency situation would be prevented by Amendment No. 119. I give the example of patients in cardiac arrest who have been shown to have an improved survival rate if artificial cooling is given during the arrest. That is now part of standard care. We would not know that if that research, which is relatively invasive, had not been done. I hope that Amendment No. 119 is obviated by either Amendment No. 120 or Amendment No. 121.