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Mental Capacity Bill

Part of the debate – in the House of Lords at 8:30 pm on 1st February 2005.

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Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health) 8:30 pm, 1st February 2005

I am sympathetic to the matter raised. I understand that there may be times when a person in research might temporarily or instinctively resist the application of some essential procedure that is intended to protect them from risk of harm, distress or pain. It is certainly not our intention to require researchers to discard standard safety measures simply because a person without capacity objects to them.

The researchers have, and continue to have, a duty of care and perhaps also a statutory duty under health and safety legislation to protect their research participants. I agree that this clause should not interfere where it might be necessary gently to hold a person so that a sample or measurement can be safely obtained.

However, I hope that noble Lords, and the noble Baroness in her absence, will accept that the amendments tabled here may not achieve the necessary effect of providing for another kind of objection or resistance to be respected. The way in which they are drafted at the moment could cause problems in another area; they may go too far. I accept that the amendment would retain the principle in Clause 33(3) that if the person indicates in any way that he may want to be withdrawn, that must happen.

But I want to look again at other related amendments, together with these, and reflect further on what the appropriate balance must be within research. So I accept that there is something in the amendment that we need to address in order to protect participants under normal duties of care. I am not sure that this wording does the trick. We are getting into complex areas where one amendment may interfere with another amendment. There is a complex set of relationships and we want to come out of this with the balance right so that real objections expressed by someone participating are observed, listened to by the researcher and acted upon. But gentle guiding in order to protect someone who may react too precipitately to a procedure has to be respected.

I hope that the noble Baroness will accept that I wish to reflect on this issue and take further advice before returning with any necessary amendment at Report stage. With that assurance, I hope that the amendment can be withdrawn.