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Mental Capacity Bill

– in the House of Lords at 2:30 pm on 15th March 2005.

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Report received.

Photo of Lord Walton of Detchant Lord Walton of Detchant Crossbench

moved Amendment No. 1:

Before Clause 58, insert the following new clause—

(1) Nothing in this Act permits or authorises any decision made with a purpose of bringing about the death of a person ("P").

(2) A decision to withhold or discontinue a treatment, made for the purpose of avoiding harm or burden to P from that treatment, is not within subsection (1) even if made with the belief that it will bring about P's death."

Photo of Lord Walton of Detchant Lord Walton of Detchant Crossbench

My Lords, in moving the amendment, to which the noble Lords, Lord Carlile of Berriew and Lord Brennan, have added their names, I make it clear at the outset that there is no intention on our part to wreck the Bill. It is an extremely important Bill, and I am sure that all noble Lords wish to see it on the statute book at the earliest possible moment. I believe, too, that the objectives underlying the Bill, which the department and the noble Baronesses, Lady Ashton and Lady Andrews, have proposed, are ones that I and my colleagues share. However, the question that I have to put to your Lordships' House is whether the Bill as drafted fulfils those objectives, or whether there are any flaws or loopholes that need to be corrected.

I turn to the report of the Select Committee on Medical Ethics, which I had the privilege of chairing in 1993. We reported to this House in 1994, and the report was accepted by the House. I believe that it is relevant to mention some of the recommendations of that Select Committee, which were accepted by the House in a full and comprehensive debate.

First, the report accepted that informed consent is at the core of medical practice and that it is the patients' responsibility, having had all the implications of a form of treatment explained to them, to determine whether to accept that treatment. But we made it clear at that time, in accordance with the views expressed by a very large number of religious organisations, that any competent patient was fully entitled to refuse medical treatment after a full and detailed explanation, even if that refusal ultimately resulted in death, and we did not regard that as tantamount to suicide or assisted suicide.

Let me explain how we defined euthanasia. Of course, the original meaning of the term was simply a "gentle, easy death", but as years have gone by the term has come to be regarded as indicating a positive act intended to end the life of the individual, and an act that could have no other result than to cause death. "Voluntary euthanasia" was defined as when that act was carried out at the specific and carefully considered request of the individual who had asked for that to be undertaken. "Non-voluntary euthanasia" we defined as a situation in which an incompetent patient, unable to give or withhold consent, was subject to euthanasia on the advice and understanding, and with the agreement perhaps, of other parties; whereas "involuntary euthanasia" meant the putting to death of an individual who was fully capable of giving or withholding consent, which is totally abhorrent in civilised societies.

We rejected the term "passive euthanasia" because we preferred to use the term "a treatment-limiting decision". That refers to the recognition that there were circumstances when it was entirely appropriate to withhold or withdraw treatment if it was of no benefit whatever to the well-being of the individual as a person. Of course, one of the most notable cases in which that situation arose was that of Tony Bland, the young man who was crushed in the Hillsborough stadium disaster and who subsequently entered into a permanent vegetative state, meaning that the whole of his cerebral cortex was dead; he had no awareness whatever of his surroundings; he could breathe and his heart continued to beat; but he could not swallow and he had been fed for several years with a tube, which gave him food and fluid. That is one of the cases to which I shall return in a moment.

The Select Committee also promoted and approved the principle of double effect. That means that if it is necessary for a doctor and other members of a healthcare team, in order to relieve pain, distress and suffering, to give such doses of medication, whether pain relief, sedatives or both, as have the secondary consequence of shortening life, that would be totally acceptable in law and in medical practice.

I am grateful to the noble Baronesses, Lady Ashton and Lady Andrews, for the discussions that I have had with them and the correspondence that we have shared. Although there are still differences of opinion between us, I believe that our objectives and hopes in relation to the Bill are the same.

In Committee, there was some discussion about Clause 4(5) of the Bill that states that an action must not be motivated by a desire to end the life of the individual. At that time, we discussed the crucial difference between on the one hand, intention and purpose, which indicate the objectives and the intended outcome of a particular action, and, on the other hand, motivation and desire, which relate to the reasons why the outcome might be desired. At that time, we did not feel that the clause was sufficiently strong to fulfil the objectives that we wished to see included in the Bill.

There has been a very striking degree of disagreement between distinguished lawyers on aspects of the Bill. Some of them are strongly in support of our amendment; some of them are very strongly opposed to it. In the past, it has been said that when a lawyer says, "With respect", he means, "I disagree"; when he says, "With great respect", he means, "You're talking through your hat"; and when he says, "With the greatest possible respect", he means, "You've gone off your head". Well, one lawyer said to me, "With the greatest possible respect, I do not think your amendment will fulfil the objectives that you seek". I leave it to the good sense of the House to determine whether that was justified.

The point that I particularly wish to make is that we are at one with the Government in wishing nothing in the Bill to be taken as legalising euthanasia. I am sure that that is what Clause 58 says. Equally, we do not wish to see anything in the Bill that would justify assisted suicide.

In the case of Tony Bland, the Select Committee that I had the privilege of chairing considered carefully whether it was right to continue giving him food and fluid by a tube inserted through his nose into his stomach. The universal medical opinion was that it was medical treatment and it was felt at the time that it could be withdrawn like any other medical treatment. But the nurses objected greatly and said that food and fluid were basic human rights that should not be withdrawn under any circumstances. In the end, we came to the conclusion that the outcome desired in the case of Tony Bland would have been equally well achieved by the removal of antibiotics, which were clearly medical treatment. In other words, there was no obligation on the healthcare team to continue with futile medical treatment that added nothing to the well-being of the individual.

As your Lordships are aware, the case of Tony Bland went to the High Court and the judge recommended that the feeding tube should be removed. It then went to the Appeal Court where three judges agreed, for different reasons. Finally, it came to the Appellate Committee of this House where nine Law Lords expressed their views on the case. As noble Lords are aware, the majority view was that the feeding tube should be removed because in every way it was not in Tony Bland's best interests for feeding to be continued. I believe that certain Law Lords, using the principle of mens rea, concluded that withdrawing the feeding tube intended death; in other words, that in a sense it could be construed as murder. But six of the nine noble and learned Lords did not suggest that that decision intended death, even though death was foreseen as a consequence of the action. They said that continuing treatment was not in Bland's best interests and could be construed as being harmful or burdensome to him.

Since that time, any request for the removal of the feeding tube of a patient in a permanent vegetative state, which has been considered by the healthcare team in consultation with the family and those close to the individual, has had to be referred to the High Court.

The purpose of our amendment is to make absolutely clear that an advance directive, however framed, could not be used to justify assisted suicide because, under Clause 26, advance directive decisions must be complied with even if they are against the patient's best interests. This is a fundamental feature of the Bill. New safeguards in relation to advance decisions have been added by the Government. They provide significantly more safeguards than are now available under the common law, but they may make it impossible for doctors to argue that an openly and explicitly suicidal advance decision is invalid because it was made with a disturbed mind. This is something upon which I seek the comments and consideration of the Government.

I confess that I have been very puzzled by a letter that I know many noble Lords have received from the noble Baroness, Lady Ashton, about the adverse effects of the amendment that other noble Lords and I have tabled. In response to the view of the noble Baroness, Lady Ashton, that the amendment,

"would allow doctors to force non-beneficial treatment on patients in their last dying days", the distinguished lawyer, Professor Finnis, has stated:

"It would not in any way permit this".

Similarly, it has been suggested to us by the BMA and lawyers advising it, that our amendment, as currently drafted, could be used to overturn the Bland judgment. Lawyers whom I have consulted say that there is nothing in subsection (2) of the amendment to prevent an assessment based upon best interests, as was concluded by six of the nine Law Lords in Bland who reached their decision without conflicting with subsection (1).

Finally, there is a suggestion in the letter from the noble Baroness, Lady Ashton, that accepting this amendment would overturn the principle of double effect. The point of subsection (2) in the amendment is to enshrine the long-established and well-accepted doctrine of double effect. The revised wording makes it even plainer. The doctrine of double effect has two aspects. It excludes the purpose of causing death and it allows death to be knowingly caused as a side-effect; in other words, a distinction must be drawn between the intention underlying an action on one hand and the consequences that may be foreseen but are not intended on the other. I believe that our amendment deals with that issue satisfactorily.

I look forward to hearing the Government's response. There has been a sincere and serious difference of opinion between lawyers on this. Some of them support the amendment and some of them feel that it is flawed and that it is unlikely to improve the Bill or to fulfil the objectives of preventing euthanasia and assisted suicide, maintaining support for the principle of double effect, and dealing with the question of withholding or withdrawing treatment in appropriate circumstances in the light of the medical situation. I beg to move.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Chair, Draft Mental Health Bill (Joint Committee)

My Lords, it is always a pleasure to follow the noble Lord, Lord Walton of Detchant. He deploys his understanding of medical ethics alongside his medical knowledge with great skill, which guides us all for much of our time here. I apologise at the outset, as I have already to the Minister, if I am absent at some inappropriate moments later in the debate. I must deal with another public duty.

I confirm that it is not the intention of those of us who put our names to the new clause to wreck this extremely important Bill; very far from it. I have had the privilege recently of chairing the Joint Committee on the draft Mental Health Bill, which has still to report. I can properly say to the House that in that committee we will, as we have done throughout, recognise the great importance of this Bill as part of the reform of law affecting an important group of people in this country. The noble Lords, Lord Carter and Lord Rix, who are members of the Joint Committee on the Mental Health Bill, have certainly brought home to me how important this Bill is. I have been deeply grateful to both of them and to others.

I have also had the privilege of serving on the also still-to-report committee on the Assisted Dying for the Terminally Ill Bill, chaired by the noble and learned Lord, Lord Mackay of Clashfern, who I am pleased to see in his place. He would confirm, without giving anything away, that we have wrestled there—and I mean wrestled—with some extremely difficult issues. They are the same issues that give rise to the new clause, on which I and the noble Lord, Lord Brennan, have added our names to that of the noble Lord, Lord Walton.

I make it clear too at the outset that it certainly is not part of my intention, as the noble Lord, Lord Walton, said is also true of him, to overturn the Bland judgment in any way. We are lucky to have in the House sitting in front of me my noble friend Lord Lester, who was the amicus curiae, the friend of the court, in that hearing before the judicial committee of this House, and he can speak with great authority about it. I will make seven short points, which I hope will be capable of confirmation by the Minister. What she says as a Minister in this debate in this House may prove to be of considerable importance in the courts, lest there be any sense of ambiguity. Frankly, along with others, I seek a Pepper v Hart-type statement from the Minister, which would assist the courts in the future.

First, it is self-evident, but it needs to be stated in the debate to satisfy me, that this is not a Bill that in any way introduces or permits assisted suicide. Secondly, this is not a Bill that in any way introduces or permits voluntary euthanasia. Thirdly, it is a broader principle that major changes that have deep-running ethical consequences should have separate legislation, particularly in the area of medical ethics. Fourthly, I hope that the Government will recognise that the withholding of treatment for the purposes of avoiding harm or burden to a patient from that treatment is conceptually entirely different from voluntary euthanasia and assisted suicide. It is the sort of work that palliative specialists do all the time. It is entirely appropriate, and it is an intellectual quantum leap away from voluntary euthanasia and assisted suicide.

The fifth point is that I hope that the Minister will be able to give an assurance, so it is absolutely clear, that the law has not changed in that sense. Those who practise or encourage assisted suicide or voluntary euthanasia within the jurisdiction of the courts of this country remain at risk of prosecution after this Bill, just as they did before this Bill, together with an assurance that such prosecutions are fully considered by the Director of Public Prosecutions and the Crown Prosecution Service. I say that because it is important to avoid what could become a slippery slope given the emotion that the issues can raise and the misleading descriptions of events that often appear in newspapers. My sixth point is that I hope that the Government will confirm their determination that all powers exercised by third parties over the affairs of others will remain subject to the highest standards of scrutiny.

Finally, I hope that the Government recognise that what, when well, we anticipate of a fatal condition may be significantly different from what, when ill, we face in a fatal condition. I believe that to be a truism, and if so, then prior statements should of course be respected, but it should be clear that they are not always accepted. Circumstances may well change between the anticipation of a fatal illness and the experience of a fatal illness, and the affected person's state of mind may have changed with the circumstances. I shall be satisfied if assurances to that effect are forthcoming from the Minister. Many people who hold the same viewpoint as me about voluntary euthanasia and assisted suicide will likewise be reassured.

Photo of Lord Brennan Lord Brennan Labour

My Lords, I apologise to the House in general and to the noble Lord, Lord Walton, in particular, for being a few minutes late for the debate. The reason is simple; while we debate the Bill in the Chamber, we also legislate by correspondence, and I had to look at the latest missive from my noble friend the Minister on my Amendment No. 55.

The chief merit of legislation on matters of this gravity should be clarity. The people who are concerned with the question of assisted suicide are interested in this debate to ensure that there is clarity about that topic. Clause 58, the new amendment that came in committee, Clause 4(5) and Clause 25(5) were all designed to protect the interests of everyone, and in particular the vulnerable, with regard to life-sustaining treatment. One further step remains to be clarified, and that is illustrated by the following. An advance decision may read as follows:

"I wish to commit suicide and to be assisted in that by the withholding of life-sustaining treatment and the managing of my resulting death shall then be in accordance with this advance decision".

To an inquiring mind looking at this Bill, such an advance decision, which deals with assisted suicide occurring by medical omission, could be a possibility. I am not saying it is; it could be. That is why the reassurances sought by both speakers so far are so important. If there is such a possibility that that form of advance decision might be binding, even though its intent is suicidal, and even though it would mean that a doctor would be required to stop treatment to enable the person to achieve that intent, such a state of affairs falls to be dealt with. That is why the amendment is before the House. As the noble Lord, Lord Carlile, pointed out, it is an ideal opportunity for the Minister to explain with clarity, if it is the Government's position, why that possibility of assisted suicide by omission does not arise.

The amendment is worthy of debate for the following reasons. First, the present law on assisted suicide would not embrace the state of affairs in which someone came to their death because a doctor stopped treatment on a request based on a suicidal intent. The omission, the stopping of the treatment, is neither wilful neglect nor an active step taken to further death.

So the first point is that the Suicide Act does not, on the face of it, apply to the circumstance I described. The second—the necessity of debate on this issue—is that in his letter of 18 January to Archbishop Peter Smith, my noble and learned friend the Lord Chancellor said that Clause 58 referred to the Suicide Act, which, he said, has no relevance to advance decisions. To make sense of that we must add, "Or anything done, or omitted to be done, pursuant to a valid and applicable advance decision". The Minister echoed those sentiments in Committee on 27 January, Hansard col. 1505.

We are therefore in a different legal circumstance, according to the framework of this Bill, whereby the process of an advance decision leading to the stopping of treatment may have to be considered as possible assisted suicide—or not, as the Minister may reassure us in due course.

If there is this possibility, however, the next concern meriting debate is the position of the treating doctors. On the face of it, the advance decision that I described would have to be carried out by a doctor, in the sense that they stopped treatment. There is no reassurance to be sought by saying "Let the courts decide if there is doubt", because the courts would look to this Bill to tell them what the law was.

These are genuine concerns. Like the noble Lord, Lord Carlile of Berriew, I want to emphasise that there is a plain legal and moral distinction between saying "in certain circumstances I do not want any more treatment, including ANH" and "I want to be helped to die". They are not the same. We do not want any elision of the two. We want clarity about the one and the other. That is the purpose of the amendment. It is not designed to provoke the idea that people will be subjected to their lives being continued by wholly unnecessary and uncalled-for treatment—not at all. It is not intended that either of the subsections should embrace theoretical, even bizarre, circumstances. The question is simple: does this Bill mean that you cannot expect to use an advance decision to assist your own suicide by having a doctor stop treatment?

The response to such a question, I hope, is not necessarily a lawyer's response. To use the phrase of my noble friend Lord Morgan in the last debate, even though we are lawyers, look at what we say for intelligence and not background. I am asking, I hope, an intelligent question. I hope the Minister's answer—or, if necessary, my amendment—is going to be clear.

We need to bear in mind that this state of affairs of advance decisions is the one part of the Bill concerning life-sustaining treatment that does not involve the concept of "best interests". The Bill expressly excludes whether it is in the person's best interests from the consideration of an advance decision. So Clause 4(5), helpfully and positively introduced by the Government, refers to cases other than advance decisions and says that, in determining best interests, account should be taken of the fact that there should be no motivation to desire death in relation to life-sustaining treatment. So Clause 4(5) does not help. Advance decisions stand on their own—hence the need for clarity.

It would be most unfortunate if this amendment were thought to affect the decision in Bland—whatever one's views as a lawyer or citizen might be about that decision. This amendment does not change the law. It does not introduce any new principle of criminal or civil justice. It seeks to clarify the existing law as best it can. It is simply not correct to say that it would undermine the decision in Bland. That is an unjustified fear. If it were justified, it could easily be remedied by a two-line amendment to permit the effect of the Bland decision-making process to continue as before.

When one looks at the critique, which was understandably advanced by the Government very late in the day, it is important to remember where we are, as we heard in the last debate. We are possibly at the end of this Parliament. There is a tight timetable for this Bill in another place. I understand only one hour will be allowed for Lords amendments. That means that we must give this amendment the very greatest consideration now.

In doing so, let me make the following points. It is not a consequence of this amendment that doctors could force non-beneficial treatment upon patients. It is in no way intended to cause that to happen. The fact that it is suggested that this amendment would deny people the right to refuse medical interventions to their bodies is, I fear, moving from the theoretical to the bizarre. It is not so intended.

It is intended, however, to deal with the principle of double effect. I have great admiration for the lawyers in the Department for Constitutional Affairs who have conducted work on this Bill. However, when the Professor of Law at Oxford University, an acknowledged international expert on law and ethics, says that this amendment settles the concerns about double effect, and one is met with the suggestion that he has got it upside down—that the amendment destroys double effect—I stand back a little. It may just be that the pressure of events in the passage of the Bill has lessened the edge of the intellectual acuity of some of the Government's lawyers. I prefer Professor Finnis's view.

These are genuine amendments to the Bill, seeking clarity on an important question. Some 40 or so of your Lordships thought it appropriate to put their names to it. As your Lordships will remember, in the 14 December debate in another place, many were concerned, including on our Labour Benches, that we should have clarity about this matter. That concern remains.

If it is thought that Amendment No. 1 is too complicated or unnecessary, I invite your Lordships to consider, very briefly, my Amendment No. 55 as an alternative, to which I make four short points. The amendment refers to advance decisions. If it is included in the Bill, it will send exactly the same signal about advance decisions not being motivated by a desire to cause somebody's death as Clause 4(5). They mirror each other in seeking to serve the same social effect.

The Government have thought, very sensibly, that many people might turn up in circumstances where it is going to be plain to the doctors that the original decision was affected by depression, mental disorder or illness, and that is where the suicidal intent came from. In some cases, however, there may be no such evidence from the doctor, and no reason for doubt. Surely it is important to make clear, through either the Bill or ministerial statement, that the Bill offers no legal support to those who manifestly and expressly seek to use it to be assisted to commit suicide by omission.

I close by pointing out that, at Second Reading, many of us welcomed the Bill, myself included because of my experience over 30-odd years in the law dealing with people who have suffered serious incapacity and their need for justice. That does not mean that I close my eyes to the reality of what might follow after the Bill if there is not clarity on the topic.

An advance decision used to be called a living will. A conference in Holland 10 or 15 years ago was entitled, "Living wills—the passport to euthanasia". The Euthanasia Society of America makes exactly the same connection between living wills and the onset of a debate on euthanasia. It is a reality. Although people listening to and participating in this debate may be extremely concerned that we are concentrating on too close an area, the aftermath that I have just anticipated could make the debate as important as those of us who tabled the amendment think it to be.

Photo of Baroness Knight of Collingtree Baroness Knight of Collingtree Conservative

My Lords, the proposed new clause is extremely complicated. The matter is difficult to sort out for one good reason, which is that there is good intention from each side of the argument. There is no doubt of that. I echo what was said by the noble Lords, Lord Walton and Lord Carlile, in that none of us has any desire to prevent the Bill passing through. All of us can see the good in it but, because it deals with life and death, it can hardly be regarded with less than the maximum amount of care and consideration. We should get it right from the beginning.

I read with great interest the letter that has already been referred to from the noble Baroness, Lady Ashton, in which she said that the amendment was not necessary because Clause 58 states that nothing in the Bill changes the existing law on murder, manslaughter or assisted suicide. However, as the noble Lord, Lord Brennan, rightly reminded us, both the noble and learned Lord the Lord Chancellor and the noble Baroness have stated unequivocally that Clause 58 has no application to advance decisions. That may be the root of the concern that many of us feel, and why the amendment was tabled.

The letter that we all received deserves the greatest consideration. I strongly refute the suggestion that the amendment is not necessary. There is no doubt in my mind that, without it, the pro-euthanasia groups—my goodness, they are not only in existence, but extremely active—could easily within the law promote advance decisions in which the patient made a decision to die and have the essentials of life withheld from him. The Bill would then force doctors to help the patient to carry out that decision. That seems inescapable, hence the amendment. Doctors, nurses and other carers would be forced by the Bill to assist the patient to die.

The Bill makes advance decisions official. Clause 25 is specific about that. To have that clause in black and white in the Bill and then claim in Clause 58 that some advance decisions could not be carried out seems to be trying to face both ways. Whether that is the intention or not, we cannot have any doubt at all about such a serious matter. Either you can make advance decisions to refuse treatment or you cannot. What other construction can we put on that? If the Government do not intend to make hospital staff parties to suicide, why not accept the amendment? It does no harm whatever to the Bill, but clarifies the position.

The noble Baroness also pointed out that the amendment would allow doctors to force non-beneficial treatments on patients in their dying days, causing them to stay in hospital and prevent them dying peacefully at home. Some of us have had the benefit of the advice of one of the top legal experts in the land, who is from Oxford University. He says that the amendment would not in any way permit that. The same letter says that a court could not reach the same decision as in the Tony Bland case, because there too the decision was based on what was in Tony Bland's objective best interests, not on an assessment of harm or burden.

I agree with what has been said about the Bland decision. As a matter of fact, I agreed with that decision, but the legal expert to whom I referred says that the court would be free to reach the same decision as in the Bland case. Nothing in the second new subsection proposed in the amendment prevents an assessment based on best interests. Six of the nine judges in Bland reached their decision without conflicting with the first proposed new subsection.

The claims made by the noble Baroness in refuting the need for the amendment do not honestly stand up. I have the greatest respect and affection for her, but I ask her to consider that we are not in any way trying to wreck or spoil the Bill. In the speeches that I make, I shall take care to be very brief. However, we feel that it is essential that the Bill is absolutely clear and does away with the considerable confusion that will be there if we allow it to go through as it is.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

My Lords, my only qualification for taking part in the debate is that I was amicus curiae in the Bland case, as has been said. I hope to address the House more in that capacity than in taking sides of any political nature. To prepare for the debate, I reread Bland and the cases used. I shall try, in a brief and non-technical way, to explain what I consider to be the existing English law and why I believe that the amendment will not be capable of achieving its intended effects, in the end. I say that with the greatest possible respect.

The Bill as it stands gives proper effect to the principles of English law that were recognised and developed by the courts and upheld by the five Law Lords—not nine; I do not know where another four have been found by anyone. There were only five of them, but they were unanimous. They upheld clear principles in Bland in 1993. The Bill also gives proper effect to the recommendations made by the Select Committee on Medical Ethics that were summarised clearly by the noble Lord, Lord Walton of Detchant, in his opening speech.

Bland would effectively be overruled by the amendment. The amendment is not in accordance with the principles that have been stated by the courts, as I shall try briefly to explain, and would upset the necessary and sensitive balance between the sanctity of human life, the individual patient's right to self determination—to decide whether to accept or reject medical treatment—and to dignity, all of which have been referred to by the courts and, in the case of a patient who lacks mental capacity to express his or her own wishes or to express those wishes when the patient had capacity, the duty of the doctor to give or withhold treatment according to what appears to be in the best interests of the patient.

Perhaps I may briefly explain. In Bland, the central question was whether artificial feeding and antibiotic drugs might lawfully be withheld from an insensate patient with no hope of recovery when it was known that if that were done the patient would shortly thereafter die. The five Law Lords made it clear that euthanasia by means of positive steps to end a patient's life, such as administering drugs by lethal injection to bring about the death of the old and infirm, the mentally defective or the physically imperfect, is unlawful. That was made perfectly clear in Bland and that is reflected in Clause 4 (5) and in Clause 58. It is one reason why the amendment tabled by the noble Lord, Lord Brennan, is, in my view, unnecessary.

The main amendment would mean that any decision, whether by a third party, such as a doctor, or deputy, or attorney, or by the patient in advance, to provide, withhold or withdraw treatment made with the purpose of causing the patient's death would be prohibited. Where the patient's death was foreseeable, the only exception, in subsection (3), would be where the decision-maker's purpose was to avoid harm or burden to the patient.

In the particular circumstances of Bland itself, the patient was permanently unconscious and was not being harmed or burdened by the treatment he was receiving. If the amendment were enacted, the exception would not apply and doctors would be obliged in law—I know that it is not the intention but it would be the effect—to continue to provide the treatment, perhaps for decades, as was true in the case of Tony Bland, even though it was futile, because the patient would never regain consciousness.

Although it is not its intention, the amendment would run counter to well-established English and human rights convention legal principles, and the ethical principles they reflect, summarised in Bland by the Court of Appeal and the House of Lords, and contained in the Bill.

Perhaps I may briefly explain and I am sorry to weary the House. It is well established that the principle of self-determination requires that respect must be given to the clear wishes of the patient so that, if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life might be or would be prolonged, the doctors responsible for the patient's care must give effect to his wishes, even though they do not consider it to be in his best interests to do so. A doctor must comply with clear instructions given by an adult of sound mind as to the treatment to be given or not, whether those instructions are rational or irrational.

The case that says that is Sidaway, which was decided by the House of Lords as long ago as 1985. That principle applies, even if, by the time the specified circumstances obtain, the patient is unconscious or no longer of sound mind. To that extent, the principle of the sanctity of human life must, the courts have made clear, yield to the principle of self-determination.

The proposed amendment would not permit effect to be given to the patient's right to decide to refuse consent to treatment, strongly endorsed by the Walton committee in paragraph 234 of its report—for example, Jehovah's Witnesses refusing blood by an advance decision, or patients with terminal conditions who did not wish to undergo a particular procedure, such as chemotherapy to treat cancer—where death was foreseeable and where the decision-taker considered the decision to be unwise or irrational, contrary to the common law and the human rights convention, as reflected in Clause 1(4) of the Bill. Competent adults are entitled in law to refuse treatment for any reason and to decide not to undergo it.

It is also well-established that, where an adult patient is mentally incapable of giving his or her consent to treatment, no one, including the court, can give consent on the patient's behalf. Treatment in such a case may lawfully be provided by a doctor where the treatment is in the patient's best interests. That was decided in 1990 by the House of Lords in the case of F v West Berkshire Health Authority. It is also well established in Bland and its progeny that a doctor may refuse to continue treatment where death is foreseeable but the treatment is not in the patient's best interests because of its futility.

In my view—I am sure that the Minister will make the clarifying statements being sought—the amendment would over-rule or cause confusion, not only in relation to Bland, but, ironically, in view of what has been said by the noble Lord, Lord Brennan, in relation to the application of the double effect doctrine. That, as the noble Lord, Lord Brennan, knows better than I, was introduced by Thomas Aquinas in the Summa Theologica, when discussing the permissibility of self-defence. Killing one's assailant, Aquinas argued, is justified, provided that there is no intention to kill him. That humanitarian doctrine was brought into English law by the well-known Catholic jurist, Patrick Devlin—Mr Justice Devlin, later Lord Devlin—in his famous summing up to the jury in the trial of Dr Bodkin Adams, to explain the permissibility of action that causes serious harm, such as death, as a side effect of promoting some good end.

Double effect concerns situations where treatment is provided—for example, treating a cancer patient with life-shortening chemotherapy or administering morphine as part of palliative care for a patient with MND—and where doctors can foresee life-shortening as a secondary effect of the treatment.

The doctrine has its critics, none more than the noble Baroness, Lady Warnock, and including little me. But the over-ruling of the doctrine, which would be the unintended double effect of the amendment, without creating a new statutory defence to homicide, which is not contemplated by the movers of the amendment, would place doctors and nurses at risk of prosecution and patients at risk of unnecessary pain and suffering. That would be contrary to the approach of the Walton committee, which, as the noble Lord, Lord Walton, has pointed out, recognised, in paragraph 242, that the fact that treatment to relieve pain and suffering might mean that a patient's life might be shortened was no reason to withhold the treatment, as long as the doctor acted in accordance with responsible medical practice with the objective of relieving pain or distress and with no intention to kill. That represents present English law but I believe that it would be jeopardised by the amendment.

Finally, I apologise to the House for giving my best effort as a legal opinion in order to clarify such matters for those who do not have my kind of sad life.

Photo of Lord Carter Lord Carter Labour

My Lords, these amendments attempt to deal with the situation of expressing suicide as an advance decision. Perhaps I should say at the outset that I am somewhat surprised that they were not drafted in those explicit terms if that was the intended objective.

In fact, as we have heard from the noble Lord, Lord Lester, they go much wider and, if accepted, would have effects on the whole operation of those parts of the Bill which deal with people who lack capacity and are terminally ill. Like other noble Lords, I have seen the briefing, the rebuttals and the rebuttals of rebuttals that have been circulated. I find the arguments of Professor Finnis unconvincing.

If these amendments are intended only to deal with express suicidal advance decisions—and I am convinced that they go much wider, whether intentionally or not—we should consider how many people would be affected. The vast majority of people who lack capacity will not have made an advance decision. As drafted, the Bill gives a proper, legal basis of protection for such people, but not if these amendments are accepted. Those who have made advance decisions—the much smaller number—are given a proper legal framework by the Bill as drafted but not as amended, if the amendments are accepted.

If the proposers of the amendment are correct in their view that this is its only purpose—and I very much doubt that—we are left with a tiny number of people who will have made express suicidal advance decisions, although the proposers argue that the numbers will grow as a result of campaigning by the Voluntary Euthanasia Society.

On Sunday, I discussed the matter with two retired hospital consultants with more than 70 years' medical experience between them. They had never seen an express suicidal advance decision. Other doctors I have talked to have said the same. We therefore have to contemplate an advance decision, perhaps made years in advance in writing and witnessed, expressly requesting assistance with suicide. I accept the Government's argument that no doctor would be compelled to act in such circumstances.

The amendments do not build on the welcome government amendments to Clause 4(5)—they disregard it, substituting "purpose" for "motivation". The amendments prohibit any decision—including advance decisions made by persons with capacity—where death is foreseeable. The amendments do overturn the Bland judgment. Anthony Bland could have lived "for many more years", to quote the judgment of Lord Keith of Kinkel. Clearly, his treatment was not harmful or burdensome.

In my view, it is absurd to argue that the jurisdiction of the courts in cases such as Bland is undisturbed by these amendments. I will repeat the words I quoted on Second Reading from the noble and learned Lord, Lord Browne-Wilkinson:

"I have no doubt that it is for Parliament, not the courts, to decide the broader issues which this case raises . . . it seems to me imperative that the moral, social and legal issues raised by this case should be considered by Parliament".—[Hansard, 10/1/05; col. 45.]

If these amendments were accepted, Parliament would have decided and the courts should be bound by that decision.

Let me deal with the point about the nine Law Lords, produced by Professor Finnis. His nine judges include the one first-instance High Court judge and the three Court of Appeal judges who simply did not focus on the criminal law aspects of the case. The final judgment in Bland, which was unanimous, was given by the five-judge court in the House of Lords. A majority of the House of Lords—three of the five judges—addressed the issue of purpose or intention in the law of murder and were clear in their judgments that doctors treating Anthony Bland had a purpose of causing death. The amendments, based as they are on purpose, would do away with the long-established and well-accepted doctrine of double effect, which allows doctors to give treatment whose foreseeable side-effect is likely to shorten life.

We have all received much briefing on this issue and many letters. It seemed to me—I thought about the matter very hard indeed—that the best way was to examine the effect of the amendments on a real situation if they became law. I took some careful advice to ensure that I was not misunderstanding or misinterpreting the amendments.

A family had two children who were both born with non-life-threatening disabilities. The son also had a heart condition and died when he was 19. When it was clear that he had little time left, the parents asked that he should not be kept in hospital supported by tubes and machinery to extend his life by only a short time. They asked for him to be allowed to die peacefully at home. This was a deliberate decision to withhold life-sustaining treatment which was not harmful or burdensome, which would not be allowed by subsection (2). In his last hours, he was given morphine to assist him. The doctor undoubtedly relied on the doctrine of double effect—which, as we heard from the noble Lord, Lord Lester, is done away with by subsection (1) dealing with purpose rather than motivation.

The daughter succumbed to a respiratory condition. She was on life support for 24 days, including artificial nutrition and hydration, but her heart eventually failed. Two attempts at resuscitation were successful. The parents were told that if the third attempt had been successful, there would have been substantial and irreparable brain damage. If she had lived with severe brain damage, these amendments would deny the parents the opportunity to take a decision to discontinue treatment. The treatment was not harmful or burdensome because their daughter was completely sedated throughout. They do not know what their decision would have been, but they should not be denied the right to make that decision.

Your Lordships will appreciate that I have thought long and hard before giving this true example, but I do think it is essential that the effect of these amendments is fully understood.

As a Roman Catholic, I am aware that there are others of my faith who do not share my views. I respect their sincerity, as I am sure they respect mine. We are all entitled to follow the dictates of our conscience, but not perhaps by attempting to impose them on others through legislation.

I will finish with a quotation:

"Normally one is held to use only ordinary means [to prolong life]—according to the circumstances of persons, places, times, and culture—that is to say, means that do not involve any grave burdens for oneself or another. A stricter obligation would be too burdensome for most men and would render the attainment of the higher, more important good too difficult".

Those were the words of Pope Pius XII to a conference of anaesthetists in 1958.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I am sure that noble Lords are aware of the bravery of my noble friend Lord Carter's speech today. I accept what the noble Lords, Lord Walton and Lord Carlile, and the noble Baroness, Lady Knight, said about not wanting to wreck the Bill but to seek to get it right. I shall try to build on what has been said by noble Lords today to demonstrate that we believe that we have got the Bill right.

I shall focus, first, on what was said by the noble Lord, Lord Carlile, who cannot be here. I know where he is, and it is completely permissible for him to do what he is doing. I hope that he will be able to read the reassurances I give him.

I was concerned that my noble friend Lord Brennan thought that we were a little late in the day with our briefing. As he will know, we have had many meetings on the amendment during the months preceding this debate. It is not a new amendment. We have debated and discussed the issue with Professor Finnis and the Archbishop of Cardiff for a long time.

Furthermore, I say to my noble friend that I have the greatest respect for the legal profession, in particular for the lawyers in the Department for Constitutional Affairs. We went not only to those lawyers but also to the senior judiciary and to parliamentary counsel before fixing on our views. As any noble Lord who has tried will know, it is difficult to write the law which needs to stand in your Lordships' House. I am sure that my noble friend will accept that perhaps we have the expertise within government to know what works and what does not.

I begin with the points made by the noble Lord, Lord Carlile. The first point he made was that he wanted to be sure that this Bill did not introduce assisted suicide. It absolutely does not. Clause 58 is clear—the Bill does not change the law on assisting suicide.

The noble Lord, Lord Carlile, wanted to know that we were not introducing or permitting voluntary euthanasia. No. Voluntary euthanasia is murder or manslaughter and this Bill preserves the law on those matters. Again, that is in Clause 58.

The noble Lord said that if we were going to change the position, particularly around medical ethics, separate legislation would be required. That is absolutely right. This Bill has been very carefully drafted to preserve the legal rules on murder, manslaughter and assisted suicide. Clause 58 says so. It is impossible to stretch this Bill to allow euthanasia or assisted suicide. I would not be standing here if that were so.

Fourthly, the noble Lord said we should recognise that withholding treatment to avoid harm is different from voluntary euthanasia and assisted suicide. I agree. Withholding or withdrawing treatment where that treatment is not in the patient's best interests is not assisting suicide and it is not a breach of a doctor's duty; it is in accordance with the doctor's duty.

On the fifth point raised by the noble Lord, Lord Carlile, it is clear that the law has not changed. Those who practise euthanasia or assist suicide in England and Wales will be prosecuted as now. That will be the case. Again, Clause 58 is clear: murder, manslaughter and assisted suicide are unchanged. The clear, understood legal framework with the obligation to consult under best interests will mean that it is easier to identify problems and to bring prosecutions.

Sixthly, the noble Lord said that he wanted to confirm that all the powers by third parties remain subject to the highest scrutiny. Yes, my Lords: all the decisions taken must be in the person's best interests objectively. The breach of the best interests obligation means that the attorney, or deputy, is acting without authority and is liable to be sued and removed from his position by the Court of Protection. The Public Guardian will investigate complaints about attorneys, for all attorneys will be on a public register.

All decisions must be taken in the person's best interests. Consultations are required; attorneys do not act alone. If a doctor thinks that an attorney is acting contrary to P's best interests, the doctor can ignore the attorney while seeking the guidance of the court. If the attorney acts contrary to best interests, he may be sued or even prosecuted. If a doctor fails to take action where the attorney is clearly acting contrary to best interests, he may be liable through negligence.

Finally, in response to the noble Lord, Lord Carlile, the Government recognise that there may well be a change in circumstances from the time that a person makes a decision prior to having a condition to the moment when he has a condition. The Bill recognises that a person's mind may change and that the circumstances may change. The tests of validity and applicability in Clause 25 deal precisely with that point. If a person acts contrary to the advance decision or if he does anything to demonstrate that the circumstances have changed—he may have changed his mind if the treatment has changed—in any situation where there is any doubt whatever, the doctor treats. Under the Bill, the doctor is not liable; he is protected if he treats in those circumstances. It is very clear that the Bill is skewed on the side of treating when there is any doubt whatever. That is a critical part of the Bill.

Perhaps I may go through the areas where I think the issues lie in relation to the amendments that have been put forward. I shall not repeat everything that has been said about "purpose". It has been covered by those who know far better than I do—not least the noble Lord, Lord Lester—how "purpose" is interpreted within the criminal law. But the reality is that the way in which the amendment has been framed would undermine Clause 58 completely. We inserted the clause to clarify the very point about which noble Lords—and, indeed, the Archbishop of Cardiff—were concerned. Ironically, we would have to remove Clause 58 if we were to accept the amendment.

It may seem completely unobjectionable to say that the Bill does not allow people to have a purpose of killing themselves or others. But, as I have said and as noble Lords who are involved with the criminal law know, "purpose" and "intent" have a key role in criminal law. This is the mental element of a huge range of crimes, including murder and manslaughter. Most crimes require, first, the doing of an unlawful act and, secondly, a mental element—usually intention or recklessness.

Perhaps I may quote from the leading case on "intent" for murder:

"Where a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be inevitable that he intended that result, however little he may have desired or wished it".

Those words were spoken by the noble and learned Lord, Lord Lane, the then Lord Chief Justice, in the case of Nedrick. The President of the Family Division, Dame Elizabeth Butler-Sloss, has said that there is no difference in principle in this context between "intention" and "purpose".

I stress that noble Lords need to be absolutely clear about five practical effects that would occur if the amendment were passed. First, it would prevent doctors balancing the benefits and burdens of treatment in their patients' best interests. Under the current law, doctors do that balancing act. They determine whether a treatment would be in the best interests of a patient. The Bill codifies and clarifies the best interests test. They do not just consider "harm" or "burden", which are not even defined in the amendment, and so it is not clear when treatment should be withheld.

Under the amendment, some doctors might feel obliged to force non-beneficial treatments on patients in their last dying days, or some might choose to interpret "harm" and "burden" very widely and be more likely than at present to withhold or withdraw treatment. All treatment has some level of burden to a person unless he has absolutely no awareness.

Let us not forget, too, that sometimes a treatment is simply of no benefit to a patient rather than being positively harmful or burdensome. None of us expects to be given treatments unless they would be of some benefit to us.

The second key difficulty with the amendment is that it would force people to stay in hospital rather than have the option of dying at home. Sometimes the key point is not the prevention of harm or burden but the provision of love and comfort. My noble friend Lord Carter put that very well. In the last few days of a person's life, a doctor may decide that it is not in the patient's best interests to provide a particular treatment, even though it would not be harmful or burdensome to him. It may be all too obvious that the person would rather die happily and peacefully at home, surrounded by the people he loves. The amendment would stop that happening—treatment would have to be given.

The third issue raised by the amendment is that it would stop people living their beliefs and making their own choices. Whether or not we agree with them—noble Lords have a variety of religious persuasions and none—Jehovah's Witnesses refuse blood through advance decisions. Christian Scientists are very concerned that they should not be forced to have medical intervention, as it is against their beliefs. Both groups refuse such treatment, even though they know that doing so might lead to death in certain situations.

The amendment would prohibit such decisions because it would apply to all decisions under the Bill, including advance decisions to refuse treatment made by a person with capacity. Advance decisions to refuse treatment would not be permissible if death were foreseeable unless the person wanted to avoid treatment that was harmful or burdensome. That is clearly not the case with the religious groups that I have identified. It is also often the case with people who refuse treatment simply because they understand what a particular procedure involves and decide they do not wish to undergo that treatment. So the amendment would lead to the quite bizarre situation where a Jehovah's Witness could refuse a blood transfusion while he had capacity but, when he lost consciousness, and thus capacity, he would have to be given blood.

The fourth issue, which has been raised by a number of noble Lords, is that the amendment would effectively overturn the Bland judgment. The amendment would not allow the courts to reach the same decision in a future case as they did in the case of Tony Bland and in 36 similar cases since. In Tony Bland's case, as the noble Lord, Lord Lester, and my noble friend Lord Carter and others have said, the doctors did, in strict legal terms, have the "purpose" of causing his death, since they foresaw his death as inevitable.

In that case, the treatment conferred no benefit, and was thus not considered to be in his best interests. So the doctors were not acting unlawfully as they had no duty to provide the treatment. Yet the treatment would not be caught by subsection (2) in this amendment, as it was not demonstrably causing harm or burden.

The amendment would do away with the established doctrine of double effect. As noble Lords know, that provides a legal defence against murder that enables a doctor to give pain relief if he judges it to be in the best interests of the patient, even though he is virtually certain that it will accelerate the patient's death.

Given the particular meaning of "purpose" in law, this legal doctrine could no longer apply under the amendment. The only thing that would matter was that death was foreseeable. The proviso in subsection (3) is of no comfort here, because double effect concerns the provision of treatment, not where it is withheld or discontinued. So the doctor would lose this legal defence and could no longer make such decisions in his patient's best interests.

Clause 4(5) resolves those points. We have included Clauses 58 and 4(5) to make explicit that the Bill does not permit euthanasia or assisted suicide, while avoiding the undesirable and distressing situations I have described. Clause 4(5) means that whatever a decision maker personally feels about, or wants for, the person he is treating, it must not affect his assessment of whether a particular treatment is in the patient's best interests. Professor Finnis suggests in his briefing that the clause would allow a decision maker to say:

"Death is in the person's best interests".

It absolutely does not. Clause 4(5) expressly disallows that.

Clause 4(5) does not change the law as it stands at the moment. But it does put it beyond doubt. All that matters is that the decision maker considers the range of treatment options available and the patient's objective best interests in respect of those treatments. Clause 4(5) cannot be interpreted to mean that doctors are under an obligation to provide, or to continue to provide, life-sustaining treatment where that treatment is not in the best interests of the patients. That is the case even where the patient's death is foreseen.

Sometimes it will be in a patient's best interests to receive life-sustaining treatment. Sometimes it will not. But in no case should a decision maker's desire to bring about someone's death—for whatever reason—be a factor in the best interests determination.

I turn to Amendment No. 55, tabled by my noble friend Lord Brennan. There are two reasons why I shall not be accepting the amendment. First, it is legally flawed; and, secondly, the Bill already deals with the concerns raised by noble Lords. It is easier to treat where capacity is in doubt under this Bill and it is extremely hard for a suicide note to qualify as a valid and applicable advance decision.

The amendment seeks to add a further condition to the applicability of an advance decision; namely, that it is not applicable to life-sustaining treatment if it is "expressly motivated" by a desire to be assisted to die.

The amendment is flawed because it is based on a legal impossibility. English law is clear that no person can ask for assistance in committing suicide by refusing treatment. There are three reasons. First, as my noble friend Lord Brennan himself pointed out on the second day in Committee, the Suicide Act 1961 makes it clear that anyone who assists in a suicide—who,

"aids, abets, procures or encourages"— will commit an offence punishable by up to 14 years' imprisonment. Clause 58, which was widely welcomed, makes clear that the Bill does not change that position.

Secondly, the courts have made it clear that an autonomous adult who refuses treatment, whether contemporaneously or via an advance decision, is not committing suicide. That position was set out by the noble and learned Lord, Lord Goff, in the case of Anthony Bland and has since been confirmed by a number of subsequent cases.

Finally, in the case of Diane Pretty—a case well known to your Lordships—it was confirmed that it cannot be argued by someone that having a right to refuse treatment means that there should also be a right to assisted suicide. The courts threw that out. They are completely different things.

The Bill deals with concerns in other ways. We know that there is a significant link between mental illness and suicide. The BMA already advises that health professionals will conclude that a suicide attempt or an express statement indicating a wish to be helped to commit suicide, is not a sustained and competent expression of intention.

The common-sense view is that if someone with nothing seriously wrong with them refuses treatment in advance because they do not want to go on living—for example, an otherwise fit and healthy young person, a diabetic perhaps refusing insulin—there must be doubt about whether they have capacity to make that decision. Depression can affect the ability to weigh information relevant to a decision.

So a doctor faced with an apparently suicidally motivated advance decision will have strong grounds for doubting the capacity of the person who made it. That doubt is enough under the Bill for the doctor to go ahead and treat the patient. Clause 26(2) protects a doctor from liability in battery if he provides treatment when he has any doubt at all that the advance decision exists, is valid or applicable. The Bill makes it easier for a doctor to treat in such circumstances than it is under current common law. So the people about whom my noble friend is concerned will be much better off under the Bill than now.

We included advance decisions in the Bill because we wanted to set out a clear framework for decision-making to replace what are unclear and poorly understood common law rules. The stringent conditions in the Bill make it more likely that doctors will err on the side of preserving life when faced with an apparently suicidal advance decision. For example, Clause 24(1)(a) requires an advance decision to refuse specified treatment. So a suicide note reading, "I want to die", will not qualify.

Clauses 25(5) and 26 require any advance decision regarding the refusal of life-sustaining treatment to be in writing, signed and witnessed. There must be a statement that the decision stands even if your life is at risk, and that statement must also be in writing, signed and witnessed. That is a lot of formalities for a rushed suicide note. Clause 25(2)(c) states that an advance decision is invalid if the person had acted inconsistently with it—for example, calling for an ambulance when they have attempted suicide. It is also not applicable where there are new circumstances of which the person was unaware when he made the decision, such as new medication, therapy or support, and there are reasonable grounds for believing that these circumstances would have affected his decision.

In practice, we do not think that that is what people do. As I have made clear, the law on suicide, manslaughter and murder remains completely unchanged by the Bill, but the amendments could make it less safe—but this amendment in particular. Someone who went to the lengths of choosing an advance decision as a route to kill himself could apparently just keep quiet about what he was up to and then it would not be expressly suicidal.

The Bill provides a clear route for people to make decisions about themselves in an appropriate manner. I recognise the issues that noble Lords have raised. I understand the strength of feeling in your Lordships' House and I take it very seriously. For that reason, we have spent many days, weeks and months in discussion not only with the Archbishop of Cardiff but with many other groups, many noble Lords, the BMA, the GMC, the senior judiciary, and so on. I know that noble Lords are right in pushing me to be as clear as possible. We will ensure that in the code of practice, we work closely with the medical profession to ensure that the guidance is as clear as it possibly can be, to back up everything that I have said in your Lordships' House.

These are important and emotive issues and I know that we all speak from a degree of personal experience and deep feeling. I appreciate the commitment that so many noble Lords have put into their speeches today. We come near to the end of the parliamentary passage of the Bill. As I said, I have spoken with many noble Lords. The Lord Chancellor is categorically certain that the Bill is now legally correct. The BMA and the GMC want the Bill passed without the amendments. The many organisations—such as Mencap, the Alzheimer's Society and Age Concern—in the Making Decisions Alliance all want the same thing. We have one historic opportunity in 15 years to change for good the way that society thinks of and relates to millions of vulnerable people.

We have met the concerns that have been raised head-on, openly and with real commitment. The Government are absolutely certain—I am absolutely certain—that the Bill does what noble Lords want it to. If the amendments are carried, the impact would be extremely detrimental on people who lack capacity, on clinical practice and on the courts. I beg your Lordships not to accept the amendments.

Photo of The Bishop of Oxford The Bishop of Oxford Bishop

My Lords, before the noble Baroness sits down, to a non-lawyer like me, Clause 58 seems crystal clear, but doubts have been raised by at least two noble Lords, the noble Baroness, Lady Knight, and the noble Lord, Lord Brennan, about statements made by the Minister and the noble and learned Lord the Attorney-General that Clause 58 in some way did not apply to advance directives. Has an ambiguity arisen in people's minds about that?

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I confess that I am not absolutely certain. I was hoping that the right reverend Prelate would speak before me so that I could have addressed all the points raised. There is no question about what Clause 58 does. Clause 58 states that the law is unchanged on the matters of murder and manslaughter and the law relating to suicide is also unchanged. That is as clear as we can possibly make it. There can be no ambiguity in that context.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

My Lords, before the Minister sits down and further to that point, does she recall stating in your Lordships' House on 27 January at col. 1505 of the Official Report that Clause 58 has no relevance to advance decisions, and that the Lord Chancellor himself said that in a letter to Archbishop Peter Smith on 18 January?

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I have just gone through in some detail the issues around advance decisions, making it clear when an advance decision is valid and applicable and when circumstances have changed. What is relevant is that you cannot, in an advance decision, ask someone to help you die. You cannot move into the world of assisted suicide, nor can you ask someone to murder you. That is absolutely clear.

With advance decisions, we have been clear that people have a right, as autonomous human beings, to refuse treatment in certain circumstances. The difference in this Bill is that the clarity of those circumstances is there, as is the way in which doctors are protected if they have any doubt that they can treat people.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, the point that the right reverend Prelate raised is the only point that troubles me. Is there any sense in which the Minister has said that Clause 58 does not apply to advance directives?

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, as the noble and learned Lord knows, Clause 58 does not change the position in terms of murder and manslaughter. Advance decisions, which are covered in other parts of the Bill, enable people to make decisions in advance of a time when they might lose capacity about certain kinds of treatment in respect of their health, welfare and other issues.

In particular, we have a provision to enable people to make a decision that they can, if they wish, refuse treatment that could be of a life-sustaining nature. But they have to have that signed and witnessed; they have to determine the treatment; they have to be specific; and they have to say what they are doing. That is not, in law, the same as enabling people to commit suicide or to murder someone. That is the point, in English law, as the noble and learned Lord will know.

Photo of Lord Walton of Detchant Lord Walton of Detchant Crossbench

My Lords, this has been a singularly interesting and well informed debate. It has demonstrated your Lordships' House at its best. Going back to the Select Committee on Medical Ethics, to which I have referred, the report in 1994 commended what were then called advance directives, and which are now called advance decisions.

The Select Committee did not wish them to be made legally binding, if only because of the view expressed at that time that the failure to update advance directives or advance decisions over a period of time might not take full account of advances in medical treatment which might render them inappropriate. However, since that time, these advance decisions, or advance directives, have become hallowed in common law. For that reason, I wholly accept the crucial importance of including them in the statutes as laid down in this Bill.

After hearing the arguments today, I am persuaded that there can be no way in which the acceptance of an advance decision could be construed as leading to assisted suicide. I have signed an advance directive that is lodged with my general practitioner. I have indicated that if I should become incompetent—perhaps there are signs already apparent; I am not at all certain of that—I would not wish to be subjected to certain forms of life-sustaining treatment that would be regarded as inappropriate or adding nothing to my well-being as an individual or doing any good in the long term.

For that reason, I confirm my view, long held, since that committee reported, that there are circumstances when, in the best interests of an individual, it is appropriate that medical treatment should be withdrawn or withheld. I also confirm the view that I expressed at the outset of this debate: it is entirely appropriate for any individual, given full information about the potential consequences, to refuse medical treatment even if that refusal ultimately results in death.

I do not believe, therefore, that it is appropriate to pursue this matter further. I have been much persuaded and swayed, I confess, by the outstanding contributions made to this debate by the noble Lords, Lord Lester and Lord Carter, and others. I have to say that my only wish in tabling these amendments was to make it absolutely clear that nothing in this Bill could justify voluntary euthanasia or assisted suicide. For those reasons alone, I wished this matter to be debated in the House.

In the light of what I have heard today, including the very clear, explicit and lengthy statement made by the Minister, I am now persuaded that these amendments, which were tabled with the best of possible intentions, could be open to serious misinterpretation and might have the effect of overturning the Bland judgment and of making the whole principle of double effect illegal.

The noble Lord, Lord Lester, referred to the very important case of Dr Bodkin Adams. I have never forgotten that case because, in court, a most distinguished physician of great seniority was asked whether, in his view, a certain dose of morphia given to one of Dr Bodkin Adams's patients must certainly have caused death. He said that, without any question, that was his interpretation. "Doctor, will you kindly look at this particular document? Here are her records to show that this lady had been given the same dose of morphia on four previous occasions and had survived without any ill effects". This kind of thing was the use of double effect.

Of course, double effect does not only imply giving pain relieving treatment; it also implies giving sedatives to relieve distress and suffering. I would not wish to see any mechanism in the Bill which would overturn that principle. Even though I know that certain philosophers regard the principle of double effect as hypocritical, it is not a view that I support.

For all of these reasons, after listening to this very interesting debate, I beg leave to withdraw the amendment.

Photo of Baroness Barker Baroness Barker Social Services, Non-Departmental & Cross-Departmental Responsibilities, Spokesperson in the Lords, Health

My Lords, before the noble Lord sits down, does he agree that the Minister's full and commendably clear explanation contained within it answers to all seven points put by my noble friend Lord Carlile of Berriew, which will be extremely helpful not only to your Lordships but to those who, in future, are to implement the Bill?

When the noble Lord, Lord Walton, says that he does not intend to pursue his amendment further, can those of us who have considerable fears that the Bill may not reach the statute book take it from that that he will not pursue the issue at any further stage of the passage of the Bill?

Photo of Lord Walton of Detchant Lord Walton of Detchant Crossbench

My Lords, I said at the outset that this is not intended to be a wrecking amendment. Like all other noble Lords, I am sure, I wish to see the Bill succeed and reach the statute book.

Amendment, by leave, withdrawn.

Clause 58 [Scope of the Act]:

Photo of Baroness Knight of Collingtree Baroness Knight of Collingtree Conservative

moved Amendment No. 2:

Page 33, line 7, at end insert—

"( ) No person, whether a healthcare professional or not, shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any way in the withholding or withdrawing from P of—

(a) any life-sustaining treatment; or

(b) nutrition or hydration, however provided, where that person has a conscientious objection to such withholding or withdrawing."

Photo of Baroness Knight of Collingtree Baroness Knight of Collingtree Conservative

My Lords, we all know from earlier experience that in Bills of this kind, where a totally new official permission is being given to act in such a way as has been previously unacceptable, there will be some people who will find it morally wrong to take part in the activities newly permitted.

I hope there is agreement in all parts of the House that every citizen has a right to his opinion and no law must force people to act against their conscience. Even the noble Lord, Lord Carter, a few moments ago—I am very sorry that he is not still in his place—acknowledged that we are all allowed to have our own conscience and to abide by it. And yet, when we passed a previous Bill, this was not adhered to.

The point I have made frequently in the House about my concern over withdrawing food and liquid has been covered again and again in my mail—notably by nurses, who have said how upset they were to see "nil by mouth" and know that they had to watch a patient die because they were not permitted to give the very essentials for life itself.

I believe very sincerely that we have a duty to ensure protection for doctors and nurses who will find it morally wrong to withhold life-sustaining treatment or food and liquid. To my mind—I hope that I can carry the House with me on this—they must never be forced to do what is so clearly against their conscience.

There are two other amendments that read exactly the same; it is a question of tidying up the Bill and the amendments. I shall not repeat the argument; this is really one speech for three because the same argument goes for all three of them.

We do not force those who have a conscientious objection to fight or to go to war even when our country faces mortal danger. We have religious freedom: people are allowed to carry through their conscience with regard to their religion, or lack of religion. None of us has a right to interfere with that. We have a democratic right to speak to and vote against any government with which we disagree.

But if the Bill goes through without the amendment, any doctor or nurse could be forced to withhold food and liquid from a patient in spite of his or her deep-seated—possibly religious or otherwise—beliefs against such a course. That cannot be right. Let us not be in any doubt that when a nurse has care of a patient in hospital she must abide by the notice on the bed written by the doctor who is chiefly in charge of that patient. If the order is "nil by mouth", the nurse must abide by that.

I cannot agree that that is correct, which is why I have tabled the amendments. It is difficult for me to see how anyone could vote against the amendment, because it would mean that they were standing up and saying, "No, in this instance, someone who does not want to do something which is basic—dealing with life and death—will be forced to do it". I cannot see on what grounds the Government of what is at least a partially free country could support that view.

I hope that we will not hear the argument that no doctor or nurse would ever be forced to hasten a patient's death in that way because sadly there have been many examples of precisely that. Tell that to nurses who have been threatened if they do not assist in abortions or those who have been given orders not to allow certain patients to be fed or to receive liquid.

I have stated that I have no intention of prolonging the debates on the Bill in what I recognise is a difficult situation with the end of the Session coming up shortly. Although I could say a good deal more I hope at least that my sincerity is clear and that my intention is just as clear that we must protect people who are in charge of such patients from ever being forced to do something against their belief. I beg to move.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

My Lords, I am happy to support Amendments Nos. 2, 4 and 10 tabled by the noble Baroness, Lady Knight of Collingtree, to which I have added my name. In doing so we return to an issue that we debated in Committee, where the noble Earl, Lord Howe, had tabled an amendment. I had tabled a similar amendment on the issue of conscience.

This is a logical debate to follow the one that we have just had. Conscience cuts both ways. A great deal was said in the earlier debate about personal autonomy and the rights of people to take decisions. Surely the question of autonomy for members of hospital staff, doctors, nurses and other personnel should also occupy some of our time.

This is a worthwhile Bill: I have said so throughout the debates. If the loophole to which the Archbishop of Cardiff and Professor John Finnis—who was referred to in the earlier debate—among others have pointed is not plugged, I would have great difficulty as a matter of conscience in supporting the Bill at Third Reading. Indeed, we may have sown the seeds of the Bill's destruction, I fear, because I know that there will be considerable opposition in another place unless we can deal effectively with that question between now and Third Reading.

If we do not plug that loophole, members of staff in hospitals will have to deal with suicidally motivated advance directives and will be placed in a very invidious position. The noble Baroness, Lady Knight, points us to the question of what staff will do in those circumstances. Will they be required to go along with someone else's exercise of their autonomy or will they have the right to opt out?

This is not a theoretical debate but a very real one. I received a letter between our Committee proceedings and this evening from a hospital worker in Derbyshire. He wrote:

"I hope you do not mind me writing to you about the situation in which I find myself. I have an opportunity to clarify the law in relation to abortion, euthanasia and religious rights in the workplace through a legal test case.

I am a hospital social worker at Derby City General Hospital working with older persons and adults with disabilities assessing risks for return home, providing support services and long-term residential and nursing care".

He goes on to say that he has a deeply held religious belief. He is the foundation governor of a local parochial school and chairman of the local parish pastoral council. The letter continues:

"Unfortunately, I have not been allowed to work at Derby City General Hospital for over a year due to my religious distress at abortion. My employer, Derby City Council Social Services are not willing to change my rarest of duties so that I do not have to go into a ward where abortions are involved or being performed, something I find very distressing. I have even been made to see a psychiatrist over my . . . Catholic views and told I have no grounds for grievance".

A barrister expert in religious liberties, Mr Paul Diamond, is now giving this gentleman advice, and he hopes to be able to take the matter to the courts. I think it is worth bringing this case to the attention of your Lordships this evening because it illustrates how people can be placed in a very invidious position because of their conscience.

I should like to draw your Lordships' attention to some other cases of which I am aware. A journalist whom I know who worked in Lancashire lost his job after he used the word "perish" in describing the statistics concerning abortion in that county. He was told that the term was too emotive and when he refused to withdraw it, he was told that unless he gave an assurance that there would not be a recurrence, he would lose his job. He declined to give such an undertaking and resigned.

Another case is that of Barbara Janaway, a medical secretary from Manchester. She was sacked from Salford Health Authority for refusing to deal with an abortion. An appointment had been made for a patient to attend the surgery. The woman asked for an abortion. The doctor declined and referred her to her own doctor, telling Janaway to take dictation, type the letter and contact the woman so that she could collect the letter. She refused on religious grounds, saying:

"I refused; my conscientious objection was that I was setting the ball in motion. I would have been responsible".

She was reported to the practice manager who told her to get into the real world. She responded:

"This is the real world".

The health authority dismissed her for gross misconduct.

There is also the case of Mr Patrick McCrystal, whom I have met. He is a pharmacist who lost his job after he was told to dispense the abortifacient morning-after pill. When I met him in Northern Ireland, he explained to me the dilemma he faced over his deeply held religious beliefs. He said:

"It threw me into a professional and moral dilemma. I was a pharmacist and a man of faith in a profession trying to promote health and prolong life, and being asked to dispense a pill that terminates a new life. After wide consultation, prayer and heart-searching, I handed in my notice and left the post".

Despite being able to dispense 98 per cent of daily prescriptions, he has been unable to obtain anything other than a few days' locum work at the time he told me his story.

There is the case of the scientist I met in Manchester. Stephen Clark, aged 31, was sacked after he refused, on religious grounds, to monitor emissions from hospital incinerators used to burn aborted unborn babies. An environmental chemist with Greater Manchester Scientific Services Ltd, a subsidiary of Southern Water plc, his company obtained a contract with another company operating clinical waste incinerators. One of their plants, at Hope Hospital in Salford, took waste from 16 medical centres in the north-west. He discovered that among the waste were the remains of aborted babies, and said,

"I would no more monitor the stack at a hospital incinerator than I would the crematoria at Auschwitz".

He said the plant was being used for the incineration of human beings, and continued,

"I would have been taking part in a process which diminished humanity".

He was dismissed, and lost his case at an industrial tribunal.

These cases are illustrative of a new intolerance. We heard in the previous debate about the position of a Jehovah's Witness or a Christian Scientist, although Professor Finnis, who is much cited in our proceedings, would dispute entirely what has been said in the House this evening. If we are going to cite those kinds of cases to suit our argument that we should not close the loophole referred to in the previous amendments, when we come to consider the question of the right of a hospital worker not to be involved in following up decisions, made through advance directives, not to be involved in the withholding of food or fluid if they believe that is appropriate in that case, surely they should be given the opportunity to opt out of such treatments on conscience grounds.

The fact that I have had to refer to those cases, given that there is a conscience clause in the Abortion Act 1967, demonstrates that even that limited protection has not been adequate in protecting the kind of people I have referred to this evening. One also only has to look at the number of Orthodox Jews, Muslims, evangelical Christians or Roman Catholics who are now in gynaecology and obstetrics—and there are virtually none—to realise what the change in the law in 1967 did to people in those professions. My fear is that people involved in palliative or geriatric care would be placed in precisely the same situation if these amendments that the noble Baroness has placed before your Lordships this evening are not passed.

Photo of The Bishop of Chelmsford The Bishop of Chelmsford Bishop

My Lords, the moral issues surrounding conscience are extremely complex. If I may illustrate from a personal experience as a bishop, some years ago a couple wrote to me to say that their vicar would not conduct their marriage because they were living together before marriage. I had to write to the priest and say that if he was not willing to conduct the marriage, he had a responsibility to find someone who would.

There is a moral duty upon us as professional people to ensure that people are able to have that which is their right in law. That does not require us to agree with their style of life or the decisions they have taken. It is our professional moral responsibility. I have heard what the noble Lord, Lord Alton, has said, and it is important that professionals are carefully protected. I am sure there are cases in the abortion field that need to be looked at carefully.

Nevertheless, if we enter into a professional duty, there are moral things that go with that. We must be careful, in shaping a law, not to undermine those professional responsibilities. How those things are balanced in the law is a delicate matter in terms of the moral principles at stake.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

My Lords, the right reverend Prelate has anticipated something important that I would like to draw upon. First, however, I must declare an interest, in view of the noble Lord, Lord Alton of Liverpool, linking this with termination of pregnancies. I was counsel in a case brought by the Family Planning Association of Northern Ireland against the Minister regarding the lack of guidance given to healthcare professionals in Northern Ireland about what is and is not lawful. It is relevant to mention that in the context of the examples that have been given by the noble Lord.

As the right reverend Prelate has said, healthcare professionals, like other professionals, have the right to conscientious objection. That is a fundamental right, anchored in Article 9 of the ECHR and in common law. But equally, they have a duty, when their conscience prevents them from acting in a particular way—I speak particularly of healthcare professionals—to ensure that the patients' rights are also respected and to pass the patient to someone else who does not have that conscientious objection. I do not know about Scotland, but in England and Wales my memory is that the terms of service of healthcare professionals expressly preserves the right of conscientious objection, but equally has a procedure for ensuring that if a healthcare professional has such an objection, the patient can be treated by one who does not.

In Northern Ireland, the problem was that there was no similar guidance provided and, of course, no statute. In the absence of statute, the Court of Appeal of Northern Ireland—that is, if I may say so, three judges of deep Christian religious faith—made it clear that there was an obligation on the department of state to provide that guidance and to ensure that the right to conscientious objection was preserved, and that the patients could have the advantage, or disadvantage, of being treated by others if they wished. All that was made clear in the landmark judgment last winter.

I listened carefully to the noble Lord, Lord Alton. Some of the examples that he gave, in my view, cried out for an effective remedy. I do not wish to waste the House's time by going into detail, but I shall briefly explain. Contracts of all kinds, especially when the state is involved, have implied in them human rights obligations and duties. Even if the contract did not make plain the right to conscientious objection, there would be an implied term to that effect. Furthermore, any court or tribunal would have to declare the common law compatibly with Article 9 of the convention, guaranteeing freedom of conscience; and, furthermore, any statute would have to be read and given effect, compatibly also. As the right reverend Prelate said, there would have to be a fair balance struck between the competing rights and interests.

Although it is helpful to have bad cases cited as the noble Lord, Lord Alton, did, I suggest that the victims of what seemed like abuses of power should seek competent legal advice. However, the amendment is completely unnecessary because the right to conscientious objection is anchored already in our legal system in a balanced way.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

My Lords, I am very glad that my noble friend has moved the amendment because it highlights an aspect of these problems which is extremely sensitive and important. It may be that some nurses are confident expounders of the philosophic doctrine of double effect and so forth, and are quite able to navigate those difficult waters; but I should not think that there are many of them. There are likely to be many more who would feel extremely upset in their conscience at having,

"to participate in any way in the withholding or withdrawing . . . of . . . any life-sustaining treatment; or . . . nutrition or hydration, however provided", as the amendment puts it.

It is clear that we have a duty of care towards those who work in hospitals, and that extends to providing satisfactorily for those who hold such views. I make it clear that I do not share them myself, but I recognise the sincerity of those who do and acknowledge an obligation to attend satisfactorily to them.

One advantage of our short debate is that we have been told by the noble Lord, Lord Lester, that the amendment is unnecessary. From somewhere I have it in my mind that the noble Baroness, Lady Ashton, indicated in correspondence that the amendment would be unworkable. If it is unnecessary because the law provides its measures through the Human Rights Act, it cannot be unworkable—or, at least, I trust that it is not. I cannot see why it should be unworkable, either.

I do not wish to delay the Minister's reply any longer, but I want to indicate my strong support for my noble friend's amendment and my gratitude to her for moving it.

Photo of Baroness Masham of Ilton Baroness Masham of Ilton Crossbench

My Lords, I have added my name to this amendment as this is a serious matter. We are discussing life and death tonight. One of the biggest problems is that lawyers and doctors so often interpret the law in different ways; that has been illustrated to us tonight. That is why the law must be clear. Vulnerable people must be seen to be safeguarded. That is why I support this amendment. People who feel that they must do the best for their patients must be free to follow their conscience and to opt out if they feel that they are doing the wrong thing.

Photo of Baroness Murphy Baroness Murphy Crossbench

My Lords, I recognise the wording of this amendment, which is lifted from the Abortion Act 1967. I submit that that case is quite different from the provision of care and treatment in accordance with the patient's wishes. The General Medical Council's Duties of a Doctor states that doctors must make sure that their personal beliefs do not prejudice patient care. The Nursing and Midwifery Council's Code of Professional Conduct provides similar guidance to nurses. As we have heard, there is provision in the Abortion Act for patients to be transferred to the care of another person who has no problem respecting their wishes.

We cannot have a situation where there is no provision to respect the wishes of someone who has made an advance decision. This amendment would negate such a duty of care and would introduce a fundamental shift away from individual autonomy in the practice of medicine. The Bill would be much better off without it. As we have heard, there is provision for people to act in respect of their conscience, but that does not mean that they can move away from the responsibility to provide care by transferring the patient to another person. If we were to accept the amendment, it would be extremely confusing and very unhelpful. It would mean that many patients would not have their wishes respected.

Photo of Earl Howe Earl Howe Shadow Minister, Family, Spokespersons In the Lords, Health

My Lords, my noble friend will know that I have great sympathy with the intention behind the amendment. I do not know her intentions about pressing the amendment. If she decides not to press it, I hope that the reason will be that the Minister has confirmed what the noble Lord, Lord Lester, said; that is, that this is an unnecessary amendment. In the light of correspondence that the Minister has been kind enough to send me, I believe that to be so, but I await her response.

I hope that, when she concludes this debate, my noble friend will answer this question. Would her amendment, as worded, not also apply to a situation where a patient with capacity refuses treatment? In other words, would it prevent doctors agreeing to a mentally competent patient refusing treatment?

Photo of Baroness Knight of Collingtree Baroness Knight of Collingtree Conservative

My Lords, I shall answer my noble friend's question straight away. I have not tabled an amendment in order to diminish the rights of patients but to defend and protect those who carry out their duty as a nurse or a doctor. That is what the amendment is for.

There is not the slightest belief in my mind that anything in the amendment would in any way hamper the good care of the patient. Surely, it is obvious that anyone who is in hospital needs care. We are really not talking about advance decisions here; we are talking about food and liquid. Surely if the nurse in charge of a patient, or who has on her ward a patient, about whom it has been said, "nil by mouth", and she wants at least to moisten the mouth of the patient to make him or her comfortable, that nurse should be allowed to do that instead of abiding by the rule. If she cannot by conscience abide by the rule at the bottom of the bed, surely there would be other nurses who would do so, and she would see that the patient is cared for. We are not talking about a hard attitude towards patients; we are talking about a perfectly normal, British freedom for those whom we ask to serve us.

Photo of Baroness Barker Baroness Barker Social Services, Non-Departmental & Cross-Departmental Responsibilities, Spokesperson in the Lords, Health

My Lords, might I briefly intervene? The noble Baroness makes the case that she has made all the way through the passage of this Bill, even in its consideration during the Joint Committee. I commend her persistence in pursuing what she believes to be an important matter. I simply point out that the noble Baroness made the same case to the Joint Committee—which included among its number former nurses—and it was of one mind that there is a world of difference between bad nursing practice, which is what she has just described, and which is in no way permitted by the Bill, and the deliberate withdrawal of treatment.

I was particularly struck when she again used the same example that she has used throughout about "nil by mouth" instructions. There are frequently good medical reasons why that instruction might be required. That is wholly different to the bad practice that she has been talking about. I hope that she has seen the correspondence to which the noble Earl, Lord Howe, referred, in which the Minister says:

"I promised to check GMC and BMA guidance on provisions for when a doctor does not want to carry out a treatment. Doctors are entitled to have their personal beliefs respected and will not be pressurised to act contrary to those beliefs. As I stated during Committee, where a doctor has a conscientious objection they may withdraw from the care of the patient. In doing so however they must ensure, without delay, that arrangements have been made for another suitably qualified colleague to take over their role, so that the patient's care does not suffer. The individual doctor does not necessarily have to arrange personally for a transfer of care, provided there are alternative means of doing so. However, the doctor must not abandon the patient or otherwise cause their care to suffer".

That has been the position since before this Bill, and it will remain the position after the legislation has been passed.

The noble Baroness, Lady Knight of Collingtree, is right to draw attention to bad nursing practice, which is inexcusable, and is not in any way condoned by the Bill. For the reasons given by my noble friend Lord Lester and by the noble Baroness, Lady Murphy, this amendment is not necessary to address the bad nursing practice to which the noble Baroness, Lady Knight, is right to draw the attention of the House again.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I join the noble Baroness, Lady Barker, in recognising the incredible amount of work that the noble Baroness, Lady Knight of Collingtree, has done in keeping the issue of basic care on the agenda. The Department of Health is very alive to the issues and questions which the noble Baroness has raised about the quality of care that patients receive.

It is also true, as the noble Baroness, Lady Barker, says, that much of the argument of the noble Baroness, Lady Knight of Collingtree, refers to questions of basic care that should be provided to patients in all circumstances. That is an important aspect of the way we need to think through both how this Bill is amended and patient care for the future. I pay tribute to the noble Baroness, Lady Knight of Collingtree, for that.

The noble Earl, Lord Howe, is absolutely right that my argument is primarily that this amendment is not necessary. I take what the noble and learned Lord, Lord Mayhew of Twysden, said. He was talking about two issues: the duty of care, and the best interests of the patient. We have discussed many times, and no doubt will again, the critical importance of acting in the best interests of the patient at all times. The best interests will largely determine what happens, bearing in mind the role of advance decision within that.

The right to conscientious objection already exists. If a doctor, for example, has some form of conscientious objection to the withdrawing or withholding of life-prolonging treatment, he may withdraw from the care of that patient and make arrangements for another suitably qualified colleague to take over the role. The noble Baroness, Lady Barker, quoted from the GMC guidance on that. Every doctor has that right, both when a patient has capacity and when he lacks it. They have it, provided—and I am sure that noble Lords will accept this—that the care of the patient is not compromised in its exercise. We are looking to balance the important rights of the doctor to conscientious objection with the rights of the patient to decide what treatments he wants to receive or refuse.

The noble and learned Lord, Lord Mayhew of Twysden, is absolutely right to say that this applies to not only doctors but nurses. If I say "health worker", that would cover all of those professionals. The reason I focused particularly on doctors was that doctors are quite often cited as examples of those who are in the front line of that decision-making.

The noble Lord, Lord Alton of Liverpool, has raised a number of examples. It will not surprise him that I obviously cannot comment on those particular cases at this time, except to say that the rules of the law in both the Abortion Act and the GMC guidance about what health professionals should and can do on that basis are very clear. If the noble Lord wants to send me details of those examples, I shall be very happy to pass them on to my noble friend Lord Warner.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

My Lords, I am grateful to the Minister for saying that. I will certainly let her have those details, and they will, of course, be in Hansard as well. Does she not accept, however—given everything the noble Lord, Lord Lester of Herne Hill, has said to the House about how provision already exists to protect people, and all these conscience opportunities—that if people are being discriminated against in the manner I have described, then that protection is obviously not adequate? That is why we need the kind of measure being proposed by the noble Baroness.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I do not accept that at all. Whether the protection is adequate should be judged on the basis of how it is carried out. If the noble Lord will give me the examples, we will investigate with certainty and determine what is happening in practice. Many times in my experience, both in the health service and in your Lordships' House, we discuss the issue of implementation of a law, rather than the law itself. The answer when an implementation issue comes up—if a law has not been implemented properly—is not to change the law, but to implement it effectively.

We are at Report stage, so I shall not attempt the ping-pong in which we would engage in Committee. The noble Lord will understand that.

The Bill does not change the current position. If the noble Lord has examples where the current position is not being enacted properly, I am happy to pursue those with the Department of Health. The noble Lord cannot say, however, that because he has three or four examples of it not being carried through, the law is somehow ineffective. We will investigate those issues he has specifically raised, and I will take those forward for him.

Photo of Baroness Knight of Collingtree Baroness Knight of Collingtree Conservative

My Lords, I am most grateful. Has the Minister received any of the clear examples, of which there have been many, that led to this amendment—which seeks to defend people who are put in an impossible position? It does happen, and the worrying point is that unless there is a clear statement in the Bill that those looking after patients are also permitted to have a conscience, the same old troubles will go on. That is what worries me so much.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I cannot make it any clearer than I already have. The position is as has been stated; the noble Baroness, Lady Barker, read it out. There is an absolute right of people to act within their conscience, providing that patient care does not suffer. I am sure that the noble Baroness, Lady Knight, will accept that. It is the position now and will be when the Bill is on the statute book.

The noble Baroness cited some examples, but I do not have any such examples as I have had no letters to that effect. However, I do not take them lightly; I see them as serious. Rather like the discussions and debates that I have had with her about basic care—the question of moistening of the mouth and other issues that have deeply concerned her—the issues are not ones of legislation, but of ensuring that quality of care on the wards by the nurses, staff and others is always of the highest possible standard.

We are not in disagreement that doctors, nurses and others should be able to act in accordance with conscience about a particular issue; that basic care should be fundamental to the way in which patients are treated at all times; that best interests are a critically important aspect of a doctor or nurse's work; or about the duty of care. We are in disagreement about whether those are appropriate matters to be put in the Bill and the implications of that. I want to take the noble Baroness through a couple of the examples.

I want to address some situations in which a person might have a conscientious objection to withdrawing or withholding life-prolonging treatment. The first example is the obvious one, I suppose. If a person has made a valid and applicable advance decision to withhold treatment necessary to sustain life, but the doctor—it would be a doctor in this context—feels unable to follow it for reasons of conscience, he can arrange for that patient's care to be transferred to another health professional. It is vital that the care of the patient does not suffer. We have already had quoted to us the guidance from the British Medical Association and the General Medical Council on the issue.

As I indicated, the Bill makes the law clearer and safer. If delegation is not possible to another doctor—if a suitable practitioner cannot be found—the doctor has to respect the advance decision unless he is not satisfied that it exists and is valid and applicable. If he has any doubts about the existence, validity and applicability of the advance decision under the Bill, he may treat safely in the knowledge that he will not be prosecuted for liability. Of course, a person might also have a conscientious objection to the withdrawal or withholding of treatment necessary to sustain life where there is no advance decision to refuse treatment, but where that is in the best interests of the patient concerned. That would happen only very rarely, but in such a case the person can arrange for the care of the patient to be transferred.

The person will not be protected from liability if, for reasons of conscience, he provides treatment when that is contrary to the best interests of the patient concerned. For obvious reasons, that would not be appropriate. It must be right that we do not permit doctors to provide treatment contrary to what is in a person's best interests in those circumstances. However, I can hardly think of a case in which that might happen. The noble Baroness accepts that there will be circumstances in which, because of the nature of the patient's condition, it is better to withdraw the treatment—but not to withdraw the basic care that she has rightly highlighted so many times.

The same rule applies where an attorney has refused consent. If the doctor objects to the attorney's decision, he must arrange for the patient's care to be transferred. Noble Lords recognise that, where the doctor has any doubts about the way in which the attorney is acting and thinks that he is not acting in the best interests of the patient, he can treat under the Bill and go to court to determine what should happen next.

All the way through the Bill, we encapsulate what already happens. Doctors are put in a position in which they have, under the GMC and BMA guidance, the right to exercise their conscience, and do so in a way that makes sure that the patient is cared for as we would wish. We have already indicated on several occasions the critical difference between what we are talking about and basic care, which is actually the nub of what the noble Baroness is most concerned about. We recognise that, in some circumstances, withdrawing life-sustaining treatment because a patient is about to die and the treatment is of no benefit to them—or, worse, is burdensome—may be right. We have made sure that decisions are made within the clinical practice that we have outlined, as the noble Baroness, Lady Murphy, said.

It is the doctor's right to have his personal beliefs respected and his right not to be pressured into acting against those beliefs. In the Bill, we have the right balance between the doctor's rights to act in that way and the patient's right to decide what he would want. That is something that we would all wish to exercise in consultation with medical advice, but, none the less, to feel that we had the ability to make some decisions ourselves.

So the amendment is unnecessary and the reason I ask the noble Baroness not to press it is that it is already there. I wrote to the noble Baroness to say that I have checked and confirmed that that is the case. I recognise that noble Lords are concerned about individual examples where things may not be going right. As I have already indicated, we will happily pursue those cases to ensure that those circumstances are looked into. However, that is not about making additions to the Bill, but about dealing with how things are working at present.

On that basis, I hope that the noble Baroness will feel able to withdraw the amendment.

Photo of Baroness Knight of Collingtree Baroness Knight of Collingtree Conservative

My Lords, I wish that I could conclude this matter with the happy feeling, similar to that expressed by the noble Lord, Lord Walton, at the end of his speech, that all was for the best in the best of all possible worlds, that the Bill would manage to deal with all of our difficulties and worries, and that everything would be all right on the night.

I am not happy. On the other hand, I am perfectly convinced that the noble Baroness was sincere in what she said. I believe that she is as concerned about this matter as I am. I am concerned that there are others who obviously felt that conscience was not as important as I feel it is. But that is not the case with the noble Baroness. She has been very clear. When a Bill is implemented, those who have to work to it look very carefully at what was said in Parliament. The noble Baroness has left no doubt that she also feels that there are rights here that should be protected and, I hope, will be protected. In the light of what she has said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 [The principles]:

Photo of Lord Christopher Lord Christopher Labour

moved Amendment No. 3:

Page 1, line 13, at end insert "and with a view to protecting him from abuse (whether physical, financial or of any other nature)"

Photo of Lord Christopher Lord Christopher Labour

My Lords, it is my happy task to speak to a long string of amendments. In different circumstances, I might have had a strong view about the grouping, because the amendments do not all fall into one piece. However, I am as conscious as any other Member of this House that we want to see this Bill passed and, therefore, I must substantially rely upon my noble friend the Minister, who has been so helpful to all of us throughout the passage of the Bill, to agree that if the House convinces her that there is some merit in some of these amendments, she will see what might be done about them even at the eleventh hour.

I suppose that the amendments with which we have been dealing thus far relate substantially, if not wholly, to legal arguments and, indeed, matters of conscience. But all the amendments in this group are practical amendments, based upon practical experience. It would be splendid if I could claim that they were all my unaided work, but they are not. Certainly, my practical experience over the past three years, with which I shall not weary the House again, led me to be interested in this matter. I have had considerable support from daily practitioners in the field—certainly from the master of the court, from two barristers working regularly in the field and from a solicitor, who, I heard only this morning, has been given an award for her significant contribution to elderly client work, particularly in elderly client law. So, there is no question that the provenance of these amendments is reliable.

There is a string of amendments—19 in all—and I worked out that at five minutes per amendment we could go past ten o'clock. I shall seek to avoid that. They cover three main areas: the principles; where the burden of proof lies; and notification.

I want to speak first about the principles. As I said on Second Reading, I support the change in the Title of the Bill from "incapacity" to "capacity", but I still believe that something was lost along the way. That is inevitable, because a different philosophy is brought to bear. I will not swear to it, but I do not believe that the word "protection" appears a great deal in the Bill. I have been told that it is "in best interests".

The people missing are those upon whom the light is shining—the people who are not visible. Often they are not visible to their families, where things happen to them which should not. I can see no convincing argument against my Amendment No. 3. It sends a message to a number of areas: to those who are in fear of abuse that there is a court of protection and that they can be protected; to those who may put folk in fear of abuse, and abuse includes undue influence which is a most common manifestation; to those who provide carers who can be tempted into a variety of forms of abuse; and to family, friends and advisers who see abuse happening.

The amendment should be linked with Amendments Nos. 103 and 105, which provide for visits to patients where the court has anxieties and give the court a responsibility for receiving reports from those who in good faith see something happening which they believe should not be happening.

Amendments Nos. 30, 31, 51, 52 and 53 deal with burden of proof. The Government have put forward Amendment No. 29, but it is limited in scope and I would argue that Amendment No. 31 is needed to supplement it. Amendments Nos. 51 to 53 seek to strengthen the protection of the patient. I have a note about the wording of Clause 22(3)(b), which is much narrower than the current wording in Section 6(5)(e) of the Enduring Powers of Attorney Act 1985. The wording of the Bill on this point is derived from the Law Commission report. At paragraph 7.58, the commission states:

"We have already recommended that an attorney under a CPA should be under a duty to act in the donor's best interests. It is therefore logical to use this terminology rather than that of unsuitability in relation to the court's power to displace an attorney".

It thus seems that the change was more one of adapting the test to fit the language of the draft—that is Clause 17 of the Law Commission's draft Bill—rather than a wish to make a substantive alteration to the law. This aspect of the Bill was not dealt with in making decisions, nor in the report of the Joint Committee, nor, I think, in another place.

There is existing case law on the meaning of the wording of Section 6(5)(e) of the EPA Act and in my opinion there is much to be said for incorporating an identical round of objection into the new regime. I entirely accept that as a matter of practice it makes little difference whether this ground of objection is contained in primary legislation or in regulations. However, the Law Commission intended its grounds of objection to be on the face of the Bill. Furthermore, to the best of my knowledge, there is currently no public commitment by the Government to bring forward regulations to include any wider grounds of objection.

Perhaps I may give some examples of the practical difficulties which people face. D is an elderly lady. She has two sons—A and B. B is resident abroad. She moves out of her own house and moves in with A, and she relies on him to help her with all aspects of her affairs. After some years, she sells her house and gives all the proceeds of the sale to her son A, not realising—this rings a bell with me, I might say—that she has a substantial capital gains tax bill on her former home.

At around the same time, she appoints A as her attorney under an EPA. Shortly afterwards, it is clear that her capacity is failing and A applies to register the power. B objects. The gift from D to A clearly requires investigation by an independent person. It is possible that it is wholly unexceptional. However, it may well be capable of being set aside for presumed undue influence as D clearly reposed trust and confidence in A, and the transaction calls for an explanation. There may also be a possibility of a gift being set aside for lack of capacity.

As matters currently stand, the objector merely has to show to the court that the possibility of undue influence or lack of capacity exists. He does not have to prove that there was, indeed, undue influence or a lack of capacity. It is enough that he can show that there is a conflict of interest between the donor and the attorney and that someone other than the attorney should be appointed by the court to investigate the transaction.

The possibility that the transaction may need to be set aside is enough to render the attorney unsuitable for the purposes of Section 6(5)(e). If, after appropriate investigations have been carried out by an independent person—usually an interim receiver—nothing untoward is discovered, the court may appoint the original attorney to act as receiver.

However, if D had created an LPA, which is what the Bill provides for, instead, the court would be obliged to register the power unless the objector, B, could demonstrate that A had behaved, or was behaving, in a way that was not in D's best interests or that he proposed to act in such a way. If A denied that the gift was procured by undue influence, it would seem necessary for the objector, B, to show that there had been undue influence or that D lacked capacity to make the gift. At present, the objector would merely have to show that there was a risk but, under the Bill, he would have to take his case ultimately either to the Chancery Division or to the county court.

I shall not go through a number of other examples that have been given to me but shall mention just one. Two brothers, one a senior civil servant and the other a university lecturer—so clearly not men of straw—were found to be unsuitable to be their mother's attorneys. Although she had appointed them to act jointly and severally, they refused to act together and neither was willing to let the other act separately. Neither trusted the other. Each was suspicious and critical of the other's actions and motives, and the impasse defeated the whole purpose of the power.

I have two principal amendments on notification—Amendments Nos. 23 and 27. At this point, again I thank my noble friend the Minister for the two occasions on which she met the small group of us who have been considering the Bill. I remember that on one occasion she was quite animated because she said that there had been changes in society and families were not now essentially relevant in this context. I accept that that is not what she said but that it is a very poor paraphrase of it.

I question whether it is wrong to leave out families. I suppose that in practice families would largely be written in anyway by the person making the act. But it is not always like that. The practitioners tell me that it is the ones that do not fit the norm that cause the real problems unless one ensures that something is done about it. That is especially important where the family is driven away. I am told that that is far more common than is imagined. Manipulative people seeking undue influence will, one way or another, drive families and friends away. I have personal experience of that.

I have produced a list. The noble Baroness is not keen on lists—neither am I when it comes to European elections. But the list follows that for intestacy. It seems to me that if that is what the law would say on intestacy, perhaps the law should say it when there may not be—or someone is seeking to do something to replace a person's capacity.

If I can believe what I read in the press, we also face the prospect, following the general election, of a new approach to civil partnerships being in line for change. There could be major complications unless we think carefully about this now. There are difficulties now in partnerships—not least in the area of pensions, as many of us who have had anything to do with that field will know. Will civil partners be left out like families are under the Bill? If so, I suggest it is wrong.

In Amendment No. 27 I have sought to meet the Minister's very genuine anxieties. In other words, the court may dismiss the reference to the family if the court is satisfied that no useful purpose is served by giving notice.

I do not wish to pursue the matter further; I simply want to say that this is a very important Bill; I support it and want to see it receive Royal Assent. I hold the view that the code, when we see the draft, may well be as important as the Bill itself. I hope that the many issues that cause us anxieties are in the code. The issues that I have raised, aside from the consequentials—of which there are several—are the genuine concerns of practitioners in the field. They are not dreamed up as theories. They are not things that arose specifically from my own experiences, although they were all reflected in that. As I said at the beginning, when the court master expresses anxieties and gives his full support to all these amendments, and two barristers and a practising solicitor in the field do the same, it seems to me that there is something here which we should address and try to do something about before it is too late. I beg to move.

Photo of Baroness Barker Baroness Barker Social Services, Non-Departmental & Cross-Departmental Responsibilities, Spokesperson in the Lords, Health

I wish to make one or two small points. I feel compelled to do so because we are back in anorak territory on the Bill. I commend the noble Lord, Lord Christopher, on bringing forward these amendments. Throughout the proceedings, he and I have bored the House rigid with our endless concerns about financial abuse. I commend him for seeking to address the issue in a practical way.

The noble Lord prayed in aid the eminence of the counsel who advised him. My test for these things is the lady who lives next door to my mum who looks after a number of adults who lack mental capacity. If she is happy with them then I am too.

Amendment No. 23 falls into the category of amendments that everybody dreads—a list. I want to check with the noble Lord, Lord Christopher, that his Amendments Nos. 14 and 15 would enable a donor to nominate someone who is not on that fairly lengthy list of people—for example, a cousin.

In Amendment No. 23, tabled by the noble Lord, Lord Christopher, new paragraph 6A(3) states:

"A person is not entitled to receive notice . . . if

(a) his name or address is not known to the donee and cannot be reasonably ascertained by him".

The noble Lord will know that one case that inspired my interest in this issue hung precisely on whether a donee should have known about other existing relatives, which I assume would be capable of being tested in a court and, in particular, where it was found that the donee should have known, that it would be open to being tested.

The noble Lord, Lord Christopher, may inadvertently have caused some confusion in referring to civil partners: I think that he was talking about proposed reform of common-law partnerships of heterosexual people. But I take his point. With those two provisos, I welcome these amendments.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, perhaps I may first say to my noble friend that I am sorry if the grouping took him by surprise. We thought that it hung together. Something that I will not forget about this Bill is the happy sessions that I have had with my noble friend and his band of advisers who have been fantastic in allowing me to say what I think and test out various ideas, and who have then come back to me on them. I thank my noble friend for that because it has been extremely valuable.

I shall go through the core of these amendments, but I believe that I shall have the opportunity to talk to Master Lush—who has not been to see me yet—in the next 24 hours. I shall continue to look at this matter until Third Reading to determine whether there is anything further that we should do. Behind what my noble friend and the noble Baroness, Lady Barker, has said is the desire to ensure that we provide as much protection as possible, which I think that we have covered in the Bill. I shall therefore go through the points briefly, with the proviso that I have already given. When I talk to my noble friend outside your Lordships' House, perhaps he will be more reassured.

The Bill already achieves that kind of protection from abuse. Under Clause 1, there is the requirement that all acts and decisions made must be done or made in P's best interests. I do not think that any act or decision could ever be in P's best interests if it resulted in P suffering any kind of abuse.

We know that there have to be safeguards for the vulnerable. I know that my noble friend's fears for the elderly vulnerable are the motivation behind the amendments to Schedule 1 and the desire to preserve the entitlement of relatives to receive notice of the application to register the LPA. I was grateful that my noble friend corrected himself.

I said that families are different. I did not say that they were not very important. I simply said that families are not what they used to be. We have lots of different kinds of families. People have many strong relationships—for example, half-siblings, step-children, and different situations within families. I would like my noble friend to accept that his amendment would make this quite difficult. As noble Lords who have heard me speak on any previous Bill will know, I have a difficulty with lists, as they inevitably mean that people are left out and things are not dealt with appropriately.

I am also very clear that this provision is about the donor making a choice. Ultimately, the donor should say who they would like to have notified. It could be a relative, but there may not be any relatives around or the donor may be estranged from his or her family—so there would be little point in notifying a relative. Just because someone is related does not necessarily mean that he will care anything for the donor. He may even have his own selfish motives for showing an interest in trying to object to the donor's chosen attorney.

So the Bill provides freedom of choice, but it does not lose sight of protection. My noble friend has made it clear that he is worried about the coercion or pressure that could be put on someone to give a decision-making power to a person through a lasting power of attorney.

That is why the Bill provides that all applications to register a lasting power of attorney must be accompanied by a certificate from a person of prescribed description that, in his opinion, the donor understands what he is doing and that no fraud or undue pressure is being used to induce the donor to create that lasting power of attorney. It goes one step further than that. Where there is no named person, regulations may require two certificates of that kind to be provided. This is the balance that I feel we have struck within the Bill: freedom and protection working in tandem.

My noble friend's amendment to Clause 22 seeks to add to the grounds of objection an attorney's unsuitability. One person's suitability is another person's unsuitability. My noble friend's idea of unsuitability may not be mine. I suspect that a cross-section of society would turn out a very interesting set of ideas. However, I want to reassure my noble friend that the Bill already addresses these concerns. It adds clarity and creates a straightforward test: that if the donee or attorney has behaved, is behaving or even proposes to behave in a way that contravenes their authority or would not be in the donor's best interests, the court can direct the lasting power of attorney not to be registered or, if it has already been registered, it can terminate the appointment of the attorney. It is a good test that deals with the issue raised by my noble friend.

In addition, paragraph 12 of Schedule 1 provides for certain grounds of objection to registration to be prescribed. We shall of course be consulting on what those grounds should be. Although I do not want to pre-judge the outcome, it may well be that unsuitability, properly defined, will be one of those grounds. That might help to provide the kinds of checks and balances for which my noble friend is looking.

I turn now to my noble friend's amendments to Clause 56 which relates to the functions of the Public Guardian. My noble friend is seeking to add to the Public Guardian's functions by requiring him to bring under his umbrella not only his clients under the Bill—lasting powers of attorney donors, attorneys and deputies—but any person who, because they may lack capacity, will be vulnerable or subject to physical or financial abuse.

Of course we want people, as part of a caring society, to be able to report their concerns about someone they feel may be at risk from abuse. People can do this now through other bodies and I can reassure my noble friend that if the Public Guardian receives any such concerns—we have discussed this in the past 24 hours—they will be referred to the most appropriate agency, whether that be the police, local authority social services or other bodies.

As drafted, the difficulty would be that the amendment would have very wide implications for the Office of the Public Guardian because it could mean the Public Guardian would be given the inappropriate responsibility of directing a Court of Protection visitor to visit anyone about whom he may have received a report, whether a client or not.

The Public Guardian will have a client base and, what is more, a register of some of the most vulnerable people. He has already been given the function of receiving representations, including complaints, about the way in which a deputy or attorney is exercising his powers. Widening the scope of the Public Guardian's function in this way would, I fear, create duplication of effort and could cause unnecessary confusion and dispute between those with a remit for social care, which rests firmly with the Department of Health, and local authorities with social services functions.

I want to reassure my noble friend again that the Public Guardian will work together with other agencies to respond swiftly and in a co-ordinated way to any allegations of abuse that come his way.

We believe that this co-operation, together with the new improved safeguards for lasting powers of attorney, will ensure that people are further protected from risk of abuse. It seems to me that the Bill therefore provides new and improved protection for vulnerable people whilst safeguarding the right of someone with capacity to choose the person they want as their attorney. That seems to me to be the right balance of empowerment and protection. On the basis of what I have said, I hope my noble friend will feel able to withdraw his amendment.

Photo of Lord Christopher Lord Christopher Labour

My Lords, at this time of night, I certainly have no intention of seeking to divide the House on any amendment. However, I should like to say a few words on what my noble friend the Minister has said.

There is a gap in credibility between the theory and the practice. I can only say that in a case which was very personal to me, the view of the marshal of the court was that if things had proceeded as they were proceeding, the lady concerned would almost certainly have had to leave her house and would have had absolutely nothing.

People who undertake these activities are very clever. They may not be very bright, but they are very clever. On the assurances about the fact that the court or the guardian will take action, people have to know that they can go there. I can only say that it appears that the world does not know that. The world needs to know and understand that and feel that there is something that it can do.

I hope that the Minister will find the time to have a talk with the court master, because it will be important to have her say that in his opinion this, that or the other is highly desirable in the Bill. There cannot be anyone in the land who knows more about what really goes on in this world than the court master. If he says that he needs something, we should contrive to give it. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved.]

Clause 2 [People who lack capacity]:

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

moved Amendment No. 5:

Page 2, line 9, at end insert—

"( ) A lack of capacity cannot be established merely by reference to—

(a) a person's age or appearance, or

(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity."

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, I am extremely happy to have the privilege of introducing the amendment. My noble friend and I fought over introducing it: it brings good news to the House and I am delighted that it fell to me. It is a matter of great importance to a great many people outside the House. The question of including some form of anti-discrimination or equal consideration provision in the Bill has been a recurrent theme of our debates. Noble Lords will recall that we had a long and constructive debate in Committee.

We have also discussed the matter at length with stakeholders such as the Making Decisions Alliance and the Disability Rights Commission. My noble friend said in Committee that we fully understand the concerns in this area. I want to reinforce the belief shared across the House that no one should be assumed to lack capacity, excluded from decision-making, discriminated against or given substandard care and treatment simply, for example, as a result of disability.

As we have worked through the Bill's provisions we have come to understand that there are two related concerns where people want the Bill to make an extra effort to provide reassurance and to set a higher standard of expectation.

The first concern is that people might be wrongly assumed to lack capacity simply on the basis of assumptions made about their appearance, age, disability or behaviour. The second is that best interest determinations may again be made solely on the basis of unjustified assumptions about disability, age or any other aspect of a person and that that person might be treated less favourably as a consequence of those untested presumptions or prejudices.

So we firmly believe—and my noble friend said in Committee—that the Bill's founding principles of assuming that someone has capacity and its central test of acting only in a person's objective best interests provides strong safeguards against prejudicial assumptions and decision-making.

I am happy to put it beyond doubt that prejudicial assumptions and prejudicial decision-making are entirely contrary to the Bill's ethos. We have worked long and hard on how to achieve that. I want to make that clear, because I want to pay tribute to the effort that my noble friend has put in to make that possible; and to the work of officials in getting something on to the statute book that is workable, makes sense and will address the problem.

It has not been easy, for particular reasons, but we have been able to make the concept of discrimination work in the context of the Bill to take it beyond the traditional definitions of discrimination that we had previously in legislation. I hope that it shows that we are very committed to the issue.

I turn to the first concern over the non-prejudicial assessment of capacity. Noble Lords will agree that it would be completely wrong and contrary to the Bill's spirit if preconceptions or prejudicial assumptions were to influence an assessment of capacity in the first instance; for example, "He's got a learning disability, so why should we assume that he can make any decisions?" The Bill's assumptions of capacity and its decision-making approach mean that that should never happen. People should be assumed to have capacity until it is established that they lack it, and all practical steps have been taken to enable them to make their decision.

We want to be 100 per cent clear and to know that people understand that. That is why we have tabled Amendment No. 5 to Clause 2, which provides that a lack of capacity cannot be established merely by reference to a person's age or appearance, or a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity. That makes it abundantly clear. It also gives further emphasis to the Bill's principle that everyone should be assumed to have capacity until it is shown that they do not. For example, it is not acceptable to say, on the assumption that someone has a learning disability, that he cannot or will not want to make decisions about where to live.

The second concern is that acts done or decisions taken on behalf of people who lack capacity may be influenced by prejudice, and that people who lack capacity may be discriminated against and given less favourable treatment. We wanted to make sure that no one began a best interests determination with unjustified assumptions or prejudices. That proved remarkably difficult to do. Legal provisions to promote equal treatment all require an objective comparison with how others are treated, to show whether someone is being treated less favourably because of his race, disability, gender, and so on.

The statutory provisions work by setting up and comparing one set of people and conditions against another and requiring both to be treated without discrimination or no less favourably. However, that cannot work in the Bill, which deals with people who lack capacity in very particular and special ways, according to their needs and in their best interests. All our attempts to work in an "equal consideration" principle as broad as that foundered on this fundamental problem.

However, we persevered and have produced an amendment which is broadly similar to that tabled to Clause 2. It provides that a best interests determination must not be made merely on the basis of the person's age or appearance or,

"a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests".

That makes it clear that decision-making must start from a blank slate. People cannot say, "She is very old so it is not necessary to give her this treatment" or, "He has very severe physical disabilities, so it is obviously not in his best interests to have an operation".

Instead, there must be a full and objective best interests assessment in every situation. The Bill already requires that "all relevant circumstances" be considered, including the person's past and present wishes, feelings, values and beliefs. And anyone engaged in caring for the person, or interested in his welfare, must be consulted. There are no short cuts in the best interests test. It might well be decided, once all relevant circumstances have been considered, that it is not in the best interests of a very elderly person to have chemotherapy, but that cannot be assumed on the basis of age.

The wording of the amendments is very broad. "Condition", for example, captures a range of factors, including a person's learning disability or physical disability. It also covers temporary conditions such as drunkenness. That makes it clear that it is not acceptable to jump to the conclusion that a person with physical disabilities will have a terrible quality of life and therefore should not have treatment. "Appearance" is also deliberately broad, covering visible medical problems, disabilities, the colour of someone's skin, religious dress, and so on.

The amendments are legally sound; they are workable. They will have a practical effect on the two key points of the Bill—assessing capacity and determining best interests. They ensure that there is no place for unjustified and prejudicial assumptions at these two key junctures. We believe that they are an important addition to the Bill. We shall be able to expand on their effect and go into more detail on the presumptions that are to be avoided in the code of practice.

Finally, Amendment No. 6 deletes the word "general" from "general explanation" in Clause 3(2). When we introduced Clause 3(2) on Report in the Commons, it was designed to complement the existing provision helping a person to communicate his decision by providing that every effort should also be made to help him understand the information relevant to a decision. That amendment was welcome, both in Parliament and beyond. It was seen, rightly, as a significant strengthening of the Bill's provision for communication support.

There were, however, concerns about the term "general" in "general explanation". From the meetings we had with the MDA, I know that they were concerned that the term could allow health professionals to give superficial and inadequate explanations. In Committee in this House, the noble Baroness, Lady Greengross, said that it could make the provision open to bad practice.

We all agree that people with diminished capacity must be enabled in every way to make their own decisions. The intention behind the word "general" was to ensure that people are not thought to be unable to understand information relevant to a decision merely because they cannot understand a complex explanation, or one that is full of jargon. It was desired to require the relevant explanation is given in a way that is as easy as possible to understand.

We listened, however, to the representations of the MDA, and to what noble Lords were saying in this House. We understood the concern that the reference to "general" might encourage some cutting of corners, which is the last thing we want. We want the Bill to work in the real world and to make a real difference.

This provision already requires that an explanation be given to a person in a way that is appropriate in his circumstances, and we have decided to delete the word "general" and replace it with "an". That should leave no doubt that every effort should be made to explain information to a person in a way that is appropriate to his needs. Every effort should be made to help him understand, and therefore, importantly, to make his own decision.

I commend the amendments to the House. I hope they meet the concerns that were raised, and that noble Lords feel they improve the Bill in the way they wanted to see.

Photo of The Countess of Mar The Countess of Mar Crossbench

My Lords, when I called this amendment, I regret that I forgot to say that there is a misprint on the Marshalled List. It should refer to page 2, line 11.

Photo of Lord Rix Lord Rix Crossbench

My Lords, I realise we are getting near closing time, but I would just like to say a few words to add my wholehearted support particularly to Amendments Nos. 5 and 7, and to stress to your Lordships how important it is that we get this vital Bill onto the statute book before the prophecy of a forthcoming election comes to pass. In this, as the Minister has already said, I am fully supported by Mencap, the Disability Rights Commission and the Making Decisions Alliance.

Fifteen years is too long for consultation to have taken place. I believe these anti-discrimination amendments will send a clear message to decision-makers, particularly to healthcare professionals, that they must not make "best interest" decisions about people with impaired capacity based on their own ignorance and prejudices.

The Minister will no doubt be aware that, during scrutiny of the Disability Discrimination Bill in this House, I successfully pressed to ensure that one of the new public sector's most important duties will be to tackle what many would describe as institutionalised discrimination against people with a learning disability throughout the healthcare service. These anti-discrimination amendments, alongside the requirement to consult with carers in best-interest decisions, will provide a further shield.

I should like to thank both Ministers for not giving up on these amendments, because I know that it has not been too easy for either of them. I also know that the results of their efforts will be supported by the whole of the disability sector. On their behalf, and on mine, my grateful thanks.

Photo of Baroness Wilkins Baroness Wilkins Labour

My Lords, I am grateful for these amendments, and the clarity with which the Minister stated them. They will make clear the assessments of someone's capacity to make decisions. Decisions being made for someone lacking capacity should not be based on prejudice or discriminatory assumptions.

The amendments meet the concerns that have been expressed by a great number of disability groups. I thank both Ministers for having listened so carefully, and for having brought them forward.

Photo of Baroness Barker Baroness Barker Social Services, Non-Departmental & Cross-Departmental Responsibilities, Spokesperson in the Lords, Health

My Lords, I, too, add my thanks. On behalf of the noble Baroness, Lady Greengross, who is not here, I welcome Amendment No. 6, because that deals with the point that she made. I am sure that the result of that small change will be to ensure that there are stronger provisions on support and communication needs for those who need such explanations.

While congratulating the noble Baronesses, Lady Ashton and Lady Andrews, I must say how delightful it is to be in what is genuinely a Report stage. The Government have listened, in a great many cases, to what noble Lords said in Committee, and have gone away and reported back with changes. That is a wonderful and refreshing experience.

I very much welcome the amendments, particularly Amendment No. 7, because it is not in the determination of capacity that discrimination tends to happen quite so much as in the determination of what is in somebody's best interests. It is very important that the Government have conceded that amendment to Clause 4. I believe that it is fair to say that this is the most important set of amendments in the whole Bill. Noble Lords are fully aware of the fears that have been expressed by the disability lobby, which have been expressed in this House in very clear terms by, among others, the noble Baroness, Lady Chapman.

The amendments appear in response to some that I moved in Committee. Mine used what I would say was the common working definition of "equal treatment", which one comes across in health and social care. To be honest, these amendments on first sight look a bit weird, and it was only when the Bill team was kind enough to take myself and the noble Earl, Lord Howe, through them in some considerable detail, as the noble Baroness, Lady Andrews, did this evening, that it was possible to see how they would work in practice, and that they would encapsulate a number of the forms of discrimination that people have concerns about. I am extremely grateful to the Minister for putting on record what is meant. I hope that the code of practice will go on to give further examples of how the provisions might work.

There is just one cause of discrimination which the Minister did not mention, and I listened carefully to what she said. I refer to the matter of language. It is frequently the case that people who have difficulties with language find themselves discriminated against in healthcare. I am sure that the Minister intended that to be included in the list, but it would be helpful to have that put on the record.

It is right that there are no short cuts to rooting out discrimination in practice. These are important amendments, which make the Bill safer for older people and those with disabilities, and thereby for everybody. I warmly welcome what the Government have done.

Photo of Earl Howe Earl Howe Shadow Minister, Family, Spokespersons In the Lords, Health

My Lords, I briefly add my thanks to the Minister for having listened and responded so positively to the concerns raised in Committee on these important issues. I share the observations of the noble Baroness, Lady Barker, about how helpful it was to talk to officials on the wording of these amendments.

I would like to hope that the concern that she expressed just now is met by the wording of the amendment when it refers to,

"a condition of his, or an aspect of his behaviour".

That seems to cover the kind of case to which the noble Baroness referred.

The amendments will bring enormous reassurance to disabled groups around the country and I congratulate the Government on having proposed these amendments.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, my noble friend should take the credit for that. It is a great pleasure to have arrived at this conclusion. Language is covered by aspects of behaviour. It is a tribute to the work of this House that we have arrived at an understanding of the significance of the changes proposed, and have found a way to make them. It is a reflection of the good will and partnership around the House.

On Question, amendment agreed to.

Clause 3 [Inability to make decisions]:

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

moved Amendment No. 7:

Page 3, line 3, leave out from "must" to "take" in line 5 and insert "not make it merely on the basis of—

(a) the person's age or appearance, or

(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

(2) The person making the determination must consider all the relevant circumstances and, in particular,"

On Question, amendment agreed to.

Moved accordingly, and, on Question, Motion agreed to.

House adjourned at two minutes past ten o'clock.