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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 Earl Howe Earl Howe Shadow Minister, Family, Shadow Minister, Health 8:30 pm, 1st February 2005

Amendment No. 128 is prompted by concerns raised by the BMA. The Bill does not tackle interventions that are not in the best interests of the incapacitated person but are minimally invasive and provide a significant benefit for third parties. Perhaps the most obvious example of this type of intervention is where a nurse or other health professional has suffered a needle-stick injury and there is good cause to think that the patient may have a serious blood-borne condition such as HIV, for which treatment is available. In those circumstances, the Bill appears to rule out taking a blood sample from the patient for testing.

There is no way of making an informed decision about whether to give treatment to the injured nurse, and no way of communicating with the patient. GMC guidance makes it clear that anyone taking a blood sample in these circumstances could render themselves liable to criminal charges. Even the testing of an existing sample could be challenged in the courts. That is surely not a desirable state of affairs.

The second situation I want to mention under this heading is genetic testing. The Human Tissue Act 2004, I am very glad to say, contains a provision for regulations to allow genetic testing of a tissue sample from an incapacitated adult for limited purposes other than their own medical benefit. However, it is the Mental Capacity Bill which would cover the taking of samples for such purposes—that is, if only there were an appropriate provision allowing it.

I need to ask the Minister whether taking blood for genetic testing for the benefit of a relative would satisfy the best interests test as a matter of law. This was one of the issues that troubled the Human Genetics Commission in its report of 2004 called Inside Information, and we need clarity on it.

I hope that I have said enough to persuade the Minister on what is quite an important issue. I beg to move.