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Mental Capacity Bill

Part of the debate – in the House of Lords at 9:00 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) 9:00 pm, 1st February 2005

We are in deep legal territory with this set of amendments. I have taken careful note of points made by noble Lords and of points previously raised by the British Medical Association about acts relating to care or treatment of third parties. We are very sympathetic to the difficult position in which doctors can find themselves placed when faced with the need for testing of the kind that was mentioned by noble Lords and by the BMA. However, the Government have rightly made the principle of best interests the cornerstone of the Bill, and it would therefore seem unacceptable to make a provision for testing a person who lacks capacity for a purpose that is not in his best interests.

In earlier correspondence with Ministers the BMA understandably sought assurances that it would sometimes be possible to conduct a diagnostic test that might primarily be of benefit to a family member, in the case of genetic diseases, or perhaps to a nurse or doctor if a needlestick accident had occurred during treatment given to the person without capacity.

Our view is that an amendment to the Bill of the kind proposed is unnecessary. We consider that as it currently stands, the Bill would allow for acts the primary purpose of which would be to benefit a third party, provided that those acts are in the person's best interests. I would like to assure the Committee that the interpretation of best interests could be broader than the person's medical best interests. That is the critical point which is at stake.

As was said in another place, I can confirm that the Bill will not prevent a genetic test for a familial cancer, for example, that might not be essential to the person's medical care, but would provide considerable benefit to some other family member. Similarly, HIV testing would be lawful if there were a needlestick injury to a nurse involved in the person's care, and if a timely diagnosis of HIV status would be in the person's best interests so that treatment could be started.

I am pleased to be able to say that we will make it clearer in the code that in such cases the possible wider benefit that accrues from testing that has been endorsed in legal judgments—those legal judgments are critical—will continue to be an important factor in determining best interests. If a diagnostic test is in the best interests of a person who lacks capacity, it should be lawful and doctors performing such tests have the protection from liability afforded by Clause 5. It is a matter of legal interpretations using the basis of previous legal judgments. Certainly our legal advice is that the kind of circumstances mentioned by the noble Earl, Lord Howe, and the noble Baroness, Lady Barker, would be covered under the Bill as it is currently drafted. However, we accept that clarifying these legal interpretations in the code is a desirable and essential way forward.

We will also consult on a role for the independent consultee in such decisions so that there are mechanisms—other than the Court of Protection—to ensure that the person's best interests are being met in light of the specific circumstances of each case.

I hope with that reassurance the noble Earl will be willing to withdraw the amendment.