Mental Capacity Bill

– in the House of Lords at 2:23 pm on 24 March 2005.

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Photo of Baroness Knight of Collingtree Baroness Knight of Collingtree Conservative 2:41, 24 March 2005

moved Amendment No. 1:

Page 2, line 3, 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 withholding or withdrawing."

Photo of Baroness Knight of Collingtree Baroness Knight of Collingtree Conservative

My Lords, at the conclusion of the earlier debate on this matter on 15 March, I had no intention of returning to this subject today. I accepted what was said, which was that the law already protects doctors and nurses who are forced to act against their conscience. I withdrew the amendment. But since then I have been deluged with information and comments from people outside this place who read the report of the debate on 15 March and contacted me.

Those people claim that much of what was said against my amendment was inaccurate. The Minister may have heard from one of those people, a consultant in the NHS, who told me that he is so upset by the denial of conscience in the Bill that he will resign if it goes through. The Minister is shaking her head. The doctor concerned, who takes a valuable part in the NHS as a consultant, is quite sincere and I have no doubt that he means every word he said.

As an experienced member of the medical profession, he would be aware that there is printed GMC and BMA guidance to the effect that doctors are entitled to have their personal beliefs respected and that conscientious objection is recognised. That was quoted by the noble Baroness, Lady Barker. But I am assured that the Bill introduces a new situation with new responsibilities and new aims. As it stands, there will be no protection for conscience in the Bill and no statutory protection for doctors or nurses who cannot, in conscience, comply with the decision of a patient or an attorney to refuse life-sustaining treatment or to withhold food.

Another correspondent wrote that the right to conscientious objection is essential for the practice of medicine. It is essential for the protection of patients and as a safeguard for the continuing employment of doctors and nurses to avoid discrimination.

This is an important point for the medical profession, patients and the NHS. Several noble Lords followed the right reverend Prelate the Bishop of Chelmsford in his view that a person who has a conscientious objection to taking a course must locate someone who has no such objection and who will take the course. The more I thought about that, the stranger I thought it was. The right reverend Prelate apparently ordered a clergyman who had a conscientious objection to conducting a marriage to find someone else who would conduct the marriage. In my book, that is telling the clergyman that he must equivocate and ensure that the people who have asked him to act against what he believes, rightly or wrongly, to be immoral get what they want.

I am aware that parishioners have the right to marry in the parish in which they live. I do not argue with that at all. But what is wrong with a clergyman politely telling people that he has a moral objection to carrying out their request and asking them to seek out another priest? There are plenty about. The couple will easily find someone who will marry them, so they will get their wish. I have attended many marriages that were not conducted by the priest in charge of the parish but by a relative of the bride or bridegroom or by their old friend. It is not uncommon. My parents divorced when I was five and, when I was about nine, my mother decided to marry again. At that time, it was very difficult to find a clergyman who would marry divorced people in church. The clergyman who she asked would not do it, so she and her husband-to-be went out and found another clergyman who would marry them. I never heard her complain.

Photo of The Bishop of Southwark The Bishop of Southwark Bishop

My Lords, I did not hear the contribution of my noble friend the Bishop of Chelmsford, but he was probably referring to the fact that any parishioner has a right to be married in the parish church, even if he is not a member of the Church of England, indeed, even if he is not a member of the Christian faith. If a vicar is not prepared to conduct that marriage, the bishop has the responsibility to make sure that that marriage can take place because it is the law of the land. That is not the same as somebody who has been divorced wishing to be remarried in church. The law of the land does not require such a person to be married in the parish church. That is at the discretion of the vicar, having consulted the bishop.

I do not know whether that helps, but the Church of England has to obey the law of the land. If an individual's conscience does not allow him to do so, the bishop must make sure that some other minister will obey the law so that every citizen has his rights.

Photo of Baroness Knight of Collingtree Baroness Knight of Collingtree Conservative

My Lords, I am most grateful to the right reverend Prelate. He made two points that are extremely helpful to me. I was not saying that my mother's situation applies here. I was trying to make the point that there were other priests. She could go and find someone else to marry her. I would not argue with the right reverend Prelate about the rights of people to be married in a certain church.

The right reverend Prelate then said something that I found enormously helpful and that I wish the right reverend Prelate the Bishop of Chelmsford had said. The right reverend Prelate the Bishop of Chelmsford said that he told the priest that he must find somebody else to carry out something that he did not find himself able to do. The right reverend Prelate the Bishop of Southwark has just told the House that the bishop can do that and that is what I was going on to say; that surely it would be possible to ask the bishop to find someone and surely there would be a man or woman who took a different stance on the moral issue and who would undertake the task. So, I hope that that point is clear.

Similarly, in response to the noble Baroness, Lady Murphy, it seems to me wrong to pretend that doctors will be permitted a conscience, when they can have one only if they transfer the patient to the care of others who do precisely what they are unprepared to do themselves. Like priests, doctors are not few and far between, even in hospitals.

The consultant caring for the patient surely might be able to ensure that another doctor or nurse took over from the doctor or nurse who could not in conscience act. I would find it terribly difficult to claim a conscientious objection about any course. However, surely all of us in this House can acknowledge that every one in this land, every citizen, has a perfect right to a conscience and not to be asked to act against his or her conscience.

I am told quite unequivocally that the right to a conscientious objection does not exist in statute law. I received that information after the debate on 15 March. Therefore, it is essential that a conscience clause is included in the Bill to safeguard vulnerable patients and the employment rights of doctors and nurses within the NHS. That is all I ask for.

The noble Lord, Lord Lester, spoke against my conscience amendment. He said that healthcare professionals have the right to a conscientious objection under the Bill. I am assured that they will have no such right if it is taken away from them by statute, as this Bill will do. That is the point that is worrying me so much. If statute does not allow a right of conscientious objection and the courts think that that is contrary to the convention, then all they can do is to give a certificate of incompatibility. They cannot strike down an Act of Parliament. That is not my opinion but the opinion of a legal expert who wrote to me to express his concern about the Bill being passed with nothing to protect doctors and nurses as far as their consciences are concerned.

This person also assured me that my amendment would most certainly not overturn the Bland decision or decisions of that kind, nor the legal and ethical principles in it—as the noble Lord, Lord Lester, said—since my amendment refers only to this Bill, not to the general power of the courts to make Bland-type orders.

If I had not had so many involved and experienced people contact me, I would have been happy to let the matter lie. But why are these people so worried? Why does that consultant say that he will resign if the Bill goes through with no protection for conscience? What is so wrong about giving a specific protection for what is surely a basic human right? That is all I ask for. I have no wish to speak longer. I hope I have made my case. I have pleasure in begging to move the amendment.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

My Lords, I put my name to this amendment and have spoken in favour of there being a conscience clause provision in the Bill. I argued for that at Second Reading, in Committee and on Report. I think that your Lordships would be surprised if I did not briefly intervene to say again that I think that we should make belt-and-braces provision.

At the heart of the argument is the comment made on Report by the noble Lord, Lord Lester of Herne Hill. I refer your Lordships to cols. 1301 to 1304 of the Official Report of our debates on 15 March. I had set out a number of examples of people whose conscience had not been taken into account in the workings of the present abortion law. It is worth noting that the 1967 Act contains a conscience clause. However, I was able to cite a series of cases from that of a secretary to that of a social worker who found it very difficult to work inside an abortion ward and who has now been committed for psychiatric treatment, having been suspended for a full year.

In answer to that, the noble Lord, Lord Lester said:

"Some of the examples that he gave"— that I had given—

"in my view, cried out for an effective remedy".—[Official Report, 15/3/05; col. 1304.]

I was grateful to him for that comment.

I went back to look at the Social Services Select Committee's Tenth Report, published in 1990 in another place, which dealt with the "conscience clause" in the Abortion Act 1967. In its recommendations, it clearly stated:

"The first point that needs to be made arising from our inquiry is that in evidence to the Committee everyone was agreed that some form of conscience clause is necessary".

That was the view of a Select Committee that looked at the issue. It is not good enough, therefore, to rely merely on Article 9 of the ECHR, as the noble Baroness, Lady Knight, has rightly told us today.

The Select Committee also said:

"Conscientious objection is not just a matter for doctors".

I know that we will be told today that doctors have this or that amount of protection. However, the Select Committee said:

"difficulties do arise for other medical and non-medical staff. Indeed, it may be more difficult for non-doctors to claim a conscientious objection as they are able to exercise less control over the work that they do".

Indeed, the examples that I gave to your Lordships last week bear that out.

The Select Committee also said:

"We recommended that the Department of Health considers extending the provision of section 4 of the 1967 Act to cover some ancillary staff".

It went on to say:

"the Department of Health should bring forward proposals to delete the provision that the burden of proof of conscientious objection"— which is exactly the point that the noble Baroness has just made—

"shall rest upon the person claiming it".

In other words, it should not be a matter of the person affected having to find someone else to do something that they find unpalatable, whatever that may be.

The Select Committee also said:

"Candidates should not be asked such questions and we recommend that guidance to this effect is issued to medical schools".

It said that because it saw that gynaecology and obstetrics had been so deeply affected that many orthodox Jews, Muslims and Christians were no longer able to go into those professions because of the way that the 1967 Act operates. The same will happen with geriatric care and palliative medicine unless we make such provision.

Finally, the Select Committee said:

"We therefore recommend that the Department of Health should continue to monitor the working of the abortion service from region to region".

When the Minister replies, I should be interested to know whether that particular recommendation—made 15 years ago—has been acted on, whether we are monitoring how the conscience clause in the 1967 Act works and what lessons we are drawing from it in terms of what we do in this legislation.

The noble Baroness rightly cited the case which I drew to the attention of a Minister yesterday of a consultant who says that he will leave the service if the legislation goes through and does not provide a conscience clause. I also sent her a copy of the legal advice that the noble Baroness relied on in moving her amendment today. This is a compelling case and I am surprised that we still have to argue it.

Photo of Lord Patten Lord Patten Conservative

My Lords, I have four points to make. First, I cannot predict how many, if any, amendments will be accepted during the course of your Lordships' considerations this afternoon. However, someone more statistically adept than me has calculated that 94 amendments will make their way down the Corridor to another place. An informal message has come from another place that they will devote precisely one hour to the consideration of these amendments.

I cannot under any circumstances advise another place how to proceed, but I know that there are those listening on the Government Front Bench who are members of the Whips' Office and the usual channels. I was never considered brutal enough to be employed in the Whips' Office in another place, not having that underlying streak of toughness which I am sure is inherent and present in many of those who serve your Lordships on both sides of the Chamber, but I think that an informal message might go through the usual channels to another place that an hour simply is not good enough.

Photo of Baroness Knight of Collingtree Baroness Knight of Collingtree Conservative

My Lords, I am most grateful to the noble Lord for giving way. I wonder whether he can tell us how many of those 94 amendments were government amendments and how many were moved by those of us with concerns about the Bill?

Photo of Lord Patten Lord Patten Conservative

My Lords, I cannot give an exact figure, but I shall give way to a statistically adept noble Lord.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

My Lords, I am happy to help the noble Lord on that point. I, too, was looking at these amendments. Every one of the 94 amendments to which the noble Baroness referred is a government amendment. Of course, some of them reverse amendments that were passed in another place. The Member of Parliament for Knowsley North, for example, has moved amendments which have been replaced by Lords amendments. I am sure that those in another place will have a view on these matters.

Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch Conservative Independent 3:00, 24 March 2005

My Lords, surely many of the government amendments were tabled in agreement with what had been said in your Lordships' House.

Photo of Lord Patten Lord Patten Conservative

My Lords, I wish only that the amendments, whoever has tabled and considered them, should be properly considered in another place and in this House when they come back.

My second point is that the conscience issue, like the pro-life, euthanasia and Eugenics Society issues will be highlighted increasingly in future years. Whoever forms the government after the next general election will find conscience issues coming increasingly to the fore. Only this morning, the Select Committee on Science and Technology in the other place made an announcement on what the media would call "designer babies". I can see those issues roaring up the political agenda. The Front Benches on both sides of the House will need to be prepared for that issue, which, I know, everyone in this House agrees is not party-political.

Thirdly, there are other issues that bite on conscience matters. Doctors must consider conscience issues all the time and sometimes they have to weigh them up against cost. I wish to return to the Burke judgment, currently before the courts, as it bites wholly on the conscience issue, and the remarks of the noble Baroness, Lady Ashton of Upholland, in Committee about the reasons why the Government wish to appeal that judgment. I quote exactly, not out of context:

"However, the judgment could be read as allowing patients to request any life-sustaining treatment, even if it was harmful to the patient or if the treatment was not available, such as a transplant or a very expensive, experimental treatment that in the clinical judgment of doctors was not appropriate or in the patient's best interests".—[Hansard, 8/2/05; col. 739.]

Those are the only grounds on which the Department of Health has joined appeal; that is what the noble Baroness said.

However, there is now in circulation a letter from the Department of Health's office of the solicitor to the registrar of the Civil Appeals Office, dated 7 December 2004, seeking access by the Secretary of State for Health to request the court's permission to intervene in the appeal. In paragraph 16 the solicitor writes in this context,

"the Secretary of State would wish to put before the Court evidence of the actual cost of ANH in individual cases and the incidence of the provision of ANH (or artificial nutrition or artificial hydration on their own) in NHS hospitals. Again, it is the Secretary of State who is best placed to make these points, as they affect the NHS as a whole; and the Secretary of State who has perhaps the most direct interest (as, ultimately, the providing and paying party) in being able to address the Court on these matters".

It is very important that the Minister clarifies whether the simple cost of the provision of ANH is a material matter to the Government. I could well imagine that if the noble Baroness says "Yes" and that she agrees with the grounds for entering the appeal put forward by her right honourable friend the Secretary of State for Health, many people would find their conscientious objections strengthened not weakened.

Fourthly, and lastly, some feel that the statute book should not be cluttered up with declaratory statements—otiose verbiage on the face of statutes. I say a brisk "Hear, hear!" to that. However, where there are important issues of conscience and where there is disturbance in those whom we seek to serve in the wider world, as democrats in this place as in another place, it is of enormous value to have a declaratory provision in the Bill in a case such as this. After all, the Government have included a declaratory provision at the beginning of Part 3:

"For the avoidance of doubt, it is hereby declared that nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (C.60)(assisting suicide)".

Given that precedent, and the fact that the statute book is full of such declaratory statements, I do not see, in the face of the powerful arguments put forward by my noble friend Lady Knight of Collingtree, that there could be any objection to assuaging the fears of those who do not think that they will be protected by the European Convention on Human Rights if this declaratory provision is not included. There is no reason why the provision should not be included.

Photo of Lord Turnberg Lord Turnberg Labour

My Lords, as I understand the amendments tabled by the noble Baroness, Lady Knight, they are designed to ensure that doctors and others can object, because of their conscience, to proceeding with this process. We all want provision to be made for conscience objection; the question is whether it needs to be included in the Bill in this form or whether it exists elsewhere.

That leads us to the very legal discussion of whether or not sufficient protection already exists for those with a conscientious objection—unfortunately, I am not a lawyer. Until today, I believed that there was. As I understand this Bill and other legislation, there is protection. If that is the case, we certainly do not need this provision.

To reassure a consultant who may resign is not a good reason for including a provision in the Bill, if he could be reassured by another means. I look forward very much to the Minister's explanation of exactly what protection already exists. I believe that it does exist.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

My Lords, I apologise to the House that I was abroad during the previous stages, but I am glad to be here. I have been reading Hansard while I have been away.

The sentiment behind the amendment is very clear. I feel strongly that people must be able to exercise their conscience. However, I am concerned about the wording of the amendment, partly because I am not sure what would happen to other patients if somebody simply exercised their conscience under the amendment and walked away.

To clarify the position I telephoned the head of the human resources department in my own trust, Velindre NHS Trust. He was most helpful and took advice more widely in a short time. In a way, it was useful, as it mirrors the clinical situation where he is put on the spot and must come up with an answer quickly. He was quite clear that if a member of the clinical team, at whatever level, had a justified conscientious objection—not a frivolous one—and did not feel that they could go along with a decision, they certainly were protected and could not be forced to act. It would be against the human rights of that employee if they felt forced to act.

However, the head of human resources also pointed out that it is appropriate that the employee should be required to help locate somebody else; otherwise, they could walk out of the hospital and leave other patients' lives in jeopardy. It would be appropriate for them to try to find somebody with whom to swap in order to help whoever was leading the team. I tried to work through a clinical example. I could envisage a situation where one might even defer a decision by a few hours until a different team of nurses, secretarial or porter staff came on duty. That would enable the individual employee to exercise their conscience while the specified decision of the patient and/or of their next of kin—or their attorney, if they have made such provision—can be gone through with, and those in the clinical team who agree with the decision can proceed without harming the individual employee. I found that a most helpful conversation.

It is also worth remembering a point that was made in helpful correspondence I received from the Minister on advance decisions; that is, the phrase that if you are not satisfied it is valid, you do not have to exercise it. That leaves a lot more to the conscience of the individual clinician in the interpretation of that decision. In other words, if you are going to go along with a decision, you must be satisfied that it is valid. If you have doubt—the Minister's speeches that I have read in Hansard have been clear—you must default to life-preserving, life-prolonging treatments.

I believe that it is for those reasons that the noble Baroness, Lady Knight, has brought forward an amendment with the best of intentions. However, I am slightly concerned that not only is it unnecessary, but that it might also inadvertently harm the care of other patients by allowing someone to walk away from the clinical scenario.

Photo of Lord Christopher Lord Christopher Labour

My Lords, I apologise for being late—in particular to the noble Baroness, Lady Knight, who has been very kind to me recently. I realised that I had not paid my lunch bill and I did not want to leave the House for a week in debt.

It is very difficult to argue with what the noble Lord, Lord Patten, said, but I am extremely grateful to the noble Baroness, Lady Finlay, for confirming what was in my mind. I do not quarrel with the thought that conscience may become more of an issue as years go by. There are all sorts of reasons why that is so and it begs the very important question of how it should be dealt with in Parliament. Should it be dealt with in legislation or in some other way?

My common sense told me, which the noble Baroness, Lady Finlay, confirmed, that if a doctor or a nurse has a serious conscientious problem over what he or she is asked to do, it would be an extraordinary organisation that did not somehow meet that problem, which I think has been confirmed. In a sensible organisation one does not want to have an argument. Indeed, that happens on occasion with our Whips when we say, "I am terribly sorry. In conscience, I cannot oppose a Liberal Democrat amendment". It is not a difficulty that arises frequently but it can arise. Therefore, it is far better to consider alternative ways to deal with the problem.

I shall conclude with an anecdote, because something that the noble Lord, Lord Patten, said rang a bell with me. Here we are in the very last knockings, perhaps, of legislation in this Parliament. My anecdote goes back to 1976 when I was on the Civil Service council that dealt with pay and we had what I thought was a good offer. We were arguing. Some of my colleagues were saying that it was not enough, "No" and so forth.

Off the top of my head, I said, "Do you realise that here we are havering around and that any minute we may hear that the Prime Minister has resigned"? There was a knock at the door and a secretary walked in with a note to give to the chair. It said, "The Prime Minister has just resigned". We never got that pay award.

There is a serious risk, if we are not careful throughout the rest of this day, that we may lose all the good that is in this Bill. I hope that no noble Lord, except in the most extreme circumstances, which I do not see on the Marshalled List, is prepared to push this to the brink, because we may throw the baby out with the bath water.

Photo of Baroness Masham of Ilton Baroness Masham of Ilton Crossbench

My Lords, I have added my name to these amendments. We are discussing a very serious matter. What is more important than life and death? With our multinational and multiracial society we need clarity on the freedom of people's consciences. The debate on these amendments shows how different people interpret so many things in different ways. We need clarity. I support the amendments.

Photo of Baroness Greengross Baroness Greengross Crossbench 3:15, 24 March 2005

My Lords, on thinking very carefully about the amendment put forward by the noble Baroness, Lady Knight, and her colleagues, in total sincerity, we are in danger of forgetting that the Bill is to protect primarily the patient. We are getting into a situation where the patient's needs would become secondary to the needs of the people caring for them.

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 begin by saying to the noble Baroness, Lady Knight, that I absolutely agree that no one should be pressurised into doing anything against his or her personal values and beliefs. But I still stand by what I said at previous stages of the Bill. The noble Baroness, I trust, will accept that at each stage of the Bill I go back and look at what we have said and make sure that the advice and evidence that I receive is accurate. I have, indeed, ensured that in this case it is right.

As I explained to the noble Baroness and to the House at Report stage, health professionals already have the right to conscientious objection. But, of course, they have to arrange for the patient's care to be transferred to a suitable practitioner and, of course, make sure that the patient does not suffer. That would be inappropriate, and I am sure that they would not wish to do that.

On Report, the noble Lord, Lord Alton, and the noble Baroness were right to give examples of individuals. At that point, I made the offer that if they gave me the information, I would ensure that those individual cases were examined. I hope that they will do that, for nothing has been forthcoming since we had those discussions. If they are of such an important nature, as the noble Lord particularly felt, I am willing to make sure that they are followed up. I hope that he will bring them to my attention.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

My Lords, perhaps the noble Baroness will recall—it is in Hansard—that a record of each of the cases was in the debate last week. But I am very happy to meet her officials to give the identities of the people that I mentioned.

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, that would be extremely helpful, for we need the identities in order to follow up the cases with the individual trusts. If the examples are as they seemed, the issue is not one of this Bill, but is one of ensuring that the way in which the NHS is operating is appropriate. We would want to do that. I am grateful to the noble Lord for clarifying that he will do that, and I look forward to receiving the information.

Case law is very clear on these issues. It may be helpful if I briefly set out the current position, both in case law and in medical guidance. All health professionals have the right, whether for reasons of conscience or on other grounds, to transfer the care of a patient to a colleague. In Re B, the President of the Family Division said:

"If . . . the doctors are for any reason unable to carry out the wishes of the patient, their duty is to find other doctors who will do so".

Medical guidance is similarly clear. GMC guidance concerning conscientious objections to the withdrawal or withholding of treatment from a patient refers to the doctor's duty to,

"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 BMA guidance about a doctor's conscientious objection following an advance decision to refuse treatment states:

"In an emergency, if delegation is impossible, the doctor or nurse must comply", with that decision, while of course ensuring that he or she finds someone to take over the care.

The position is different from that of the Abortion Act 1967. I am trying to check for the noble Lord, Lord Alton, precisely what monitoring has been done since the Select Committee reported 15 years ago. I am sure he will understand that, because we are dealing with this Bill, I do not have to hand what happened as a consequence of looking at the Abortion Act.

The explicit conscience clause in the Abortion Act modifies the duties which would otherwise be imposed on the clinician by the law of negligence. It provides a defence against liability in a case where the clinician does not provide the treatment. As noble Lords propose, the equivalent in this Bill would be to provide a defence against liability in assault, when a doctor treated a patient when that treatment was contrary to either the patient's valid and applicable advance refusal or contrary to the patient's best interests.

These amendments, if carried, would change the current position on conscientious objection for patients who lack capacity. They would allow for a doctor to withdraw from the care of a patient without making arrangements for that care to be transferred. They would protect a doctor from liability if, for reasons of conscience, he continued to treat the patient when that treatment was contrary to the valid and applicable advance decision, bearing in mind the safeguards that the noble Baroness, Lady Finlay, has already described about the test of being satisfied and how that test is, if you like, at the bottom end of the scale to ensure that if doctors have any concerns at all they can treat without fear of any liability.

Under this amendment, doctors could also give treatment even when it was contrary to the patient's best interests. That flies in the face of everything we are trying to establish in the Bill. The amendment would also create a confusing situation whereby a doctor with a conscientious objection would have to arrange for substitute care for a patient who has capacity, but could simply walk away from a patient who lacks capacity. That cannot be right.

It is important to balance the right of a doctor to conscientious objection with the rights of patients to decide what treatment they would want to refuse. That is what happens now. I believe that we should continue in that vein.

I want to tackle briefly the points raised by the noble Lord, Lord Patten, which I am sure he would accept are slightly wide of the amendment before us. None the less, I am prepared to deal with them. I should say, first, that the Government will give evidence in the Burke case on life-sustaining treatment in general, which of course includes ANH. It is relevant to the appeal. I shall quote precisely what the Department of Health has said:

"We agree that people should be able to request artificial nutrition and hydration. That is what happens now and this is not the aspect of judgment which has motivated us to appeal".

I do not think that the department could be clearer than that. As I have said at previous stages, we must look at the breadth of the judgment which suggests within it that patients can demand treatments. That is an issue both in terms of doctors' clinical judgment and, ultimately, in terms of resources. In those circumstances and drawing on his own experience, the noble Lord will not be surprised to hear that clarity is being sought by the department.

Photo of Lord Patten Lord Patten Conservative

My Lords, I am grateful to the noble Baroness for giving way. I appreciate entirely what the Department of Health has said in what I guess is a statement—I am not sure whose words the noble Baroness has been good enough to bring to our attention. But I referred to the letter from the office of the solicitor in the Department of Health to the registrar in the Civil Appeals Office stating the grounds on which the Department of Health wishes to enter into this appeal. While I shall not weary the House by repeating what it says—it is on the record already—it is quite specific. It does not refer to the exceptional costs that follow from pursuing new and experimental procedures that a patient might unreasonably be judged to demand, but refers simply to the cost of ANH in individual cases. There seems to be a difference between what is being said by the spokesperson for the Department of Health and what is being said by the department's own legal representatives.

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, there is no difference whatever. If the noble Lord heard what I said at the beginning of my remarks, he will know that the costs of life-sustaining treatment were being submitted as part of the evidence, which includes ANH. However, I read out what was said by the Secretary of State in terms of the purpose behind the joining of the appeal. It does not seek to challenge the desire of people to request ANH provided that it is in their clinical best interests, which I am sure the noble Lord accepts, but simply to look at the broader aspects of the judgment. That was also most certainly the basis of my discussions with Ministers.

Finally, I make no apology for the fact that we have almost 100 amendments to the Bill. None reverses a decision of another place. On the contrary, all the government amendments either take forward commitments we made in another place or respond to issues that were raised and have been listened to by the Government in your Lordships' House. The House and the noble Lord should welcome that because it demonstrates how hard we have tried to make sure that the Bill leaves this House in good order and provides the other place with an opportunity to debate it effectively.

I have said all that I can say. I am absolutely clear in my mind that health professionals will be able to cite conscientious objection in circumstances where it is appropriate. I have already offered to look at individual cases. On the consultant who is saying that he wishes to resign, I would be happy to put him in touch with people who, it is hoped, will be able to persuade him otherwise by assuring him that, in case law and in guidance, we already have sufficient safeguards to ensure that doctors are covered.

More important is that the effect of these amendments would be to the detriment to the Bill. I hope that the noble Baroness will feel able to withdraw them.

Photo of Baroness Knight of Collingtree Baroness Knight of Collingtree Conservative

My Lords, I am grateful for the comments just made by the noble Baroness, Lady Ashton. However, I still cannot understand why it is that so many people outside this place are very worried on this score. If it is correct that doctors and nurses will still be permitted to act according to their conscience, why have so many of them been in touch with me? That, I do not understand.

I am bound to say, with the greatest respect to the noble Baroness, Lady Finlay, that I am just a little tired of having an argument which is used against me in one respect suddenly being turned around the other way when it suits those who do argue against me. I refer in particular to the fact that I have repeatedly tried to ensure that patients in hospital are given food and liquids. I am told that everything is perfectly all right for all patients in hospital because there is such a thing as good practice. It is always done and patients are always looked after. But, suddenly, the passing of my little amendment would mean that patients will not be looked after. I do not accept that. Surely the consultants in charge of patients and those who ensure that everyone is treated properly would be absolutely appalled at the idea that clinicians and other staff will walk away from wards because we have pressed for the right of some of them to have a conscience.

I do not think that this series of amendments goes against patients' interests for one major reason, which is this: nothing that helps doctors and nurses to do their jobs effectively and within their consciences could possibly harm patients. Therefore I do not accept that argument.

I intend to withdraw my amendment for the simple reason that I know very well that while a number of noble Lords would vote in support of it, it would not be carried. I have no wish to waste the time of the House. But at least it is on the record that I have a conscience and have been determined to fight for others to have one too. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 [Acts in connection with care or treatment]:

[Amendment No. 2 not moved.]

Clause 11 [Lasting powers of attorney: restrictions]:

Photo of Earl Howe Earl Howe Spokespersons In the Lords, Health, Spokesperson In the Lords (Also In the Health Team), Family

moved Amendment No. 3:

Page 7, line 24, leave out from "treatment," to "and" in line 25.

Photo of Earl Howe Earl Howe Spokespersons In the Lords, Health, Spokesperson In the Lords (Also In the Health Team), Family

My Lords, I make no apology for returning to an issue which I have raised both in Committee and on Report: the question of whether a person acting under a lasting power of attorney should have the power to consent to or refuse life-sustaining treatment.

I am afraid that my deep concern on this has not been dispelled by the Minister's answers. She has pointed to the apparent benefits to be derived from an incapacitated person having a close relative or a friend whom they themselves have nominated to stand up for their best interests when a decision of a life or death nature has to be taken. She has argued that an individual granting a power of attorney should, if he wishes, be able to nominate to act under such a power. The problem with this situation is that it is fraught with risk for the patient.

Where the doctor and the attorney are in agreement about what should be done, there is no issue. The difficulty arises when they do not agree. The degree of transparency surrounding an attorney's decision does not have to be very great. An attorney purporting to act in a patient's best interest does not have to be seen to do very much beyond consulting himself. We have already debated how difficult it is to detect, let alone eliminate, conflicts of interest on the part of attorneys. Precisely because an attorney will typically be someone close to the patient, the risks of such conflicts will be greater, not less. The fact that the patient trusted the attorney enough to give them the power in the first place skirts around the point at issue.

The situation that worries me is the one where that trust is misplaced. Are we really to imagine that a doctor confronted by an assertive and forceful attorney will have the strength of mind to stand his ground or to seek a ruling from the court? Sometimes he may, but I suggest that it will not be by any means routine or automatic. We are talking here about allowing an individual, who almost certainly will not have had any clinical training, to gainsay a doctor whose professional advice it is that a patient should be given life-sustaining treatment, including artificial nutrition and hydration.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross-Departmental Responsibilities

My Lords, I am grateful to the noble Earl. Could the power in the Bill not be of help to the doctor, who might find that he or she would prefer the decision to be taken by the attorney? After all, he is the person who knows the patient best. In many such cases would it not be something that a doctor might well find to be a positive assistance?

Photo of Earl Howe Earl Howe Spokespersons In the Lords, Health, Spokesperson In the Lords (Also In the Health Team), Family 3:30, 24 March 2005

My Lords, I agree that in many instances doctors will welcome the opportunity to consult with someone close to the patient. I take issue with the proposal that the decision on the refusal of treatment should rest exclusively with the attorney.

Up until now the withdrawal of nutrition and hydration has been either a clinical decision, or in the case of PVS patients a decision for the courts. The Bill permits an attorney to decide upon the withdrawal or withholding of nutrition and hydration. I seriously question whether that is right in principle and I seriously question whether in practice the degree of risk to which it will give rise has been appropriately acknowledged by the Government.

The Minister would have a stronger argument if an attorney were able to insist upon a patient being treated in a situation where a doctor wished to withhold or withdraw treatment, but an attorney will not be able to insist on treatment any more than the patient himself could if he had capacity. The power granted to the attorney under these provisions is either to consent to or to refuse the treatment which the doctor has proposed.

It has been put to me that an attorney, by virtue of the power vested in him over life-sustaining treatment, would be able to exercise greater leverage over a doctor who wanted to withdraw treatment when the attorney did not. As the Bill stands and as the law stands, I simply do not think this is correct. It would be virtually automatic that an attorney would be consulted over the decision—and, as I say, I have no problem with that at all, especially where there is a choice of treatments or, indeed, non-treatment, any of which could be justified under the doctor's duty of care. In the last resort, if there is disagreement, it will surely be possible for an attorney to refer the best interests decision to the court. But I see nothing to be gained, other than a great deal of risk, from giving an attorney a legal veto over life-sustaining treatment for the reasons I have set out.

This would be the first time in English law that an adult would be granted the power to give or refuse consent to treatment on behalf of another adult. For every day treatment decisions, that is one thing; but where the patient's life is at stake, I suggest it is a step too far. I beg to move.

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

My Lords, sadly, I take issue with the noble Earl, Lord Howe. I say "sadly" because, throughout the Bill, I have found his inputs into our discussions perhaps more valuable than those of anyone else for the reason that he was not a member of the Joint Committee which scrutinised the Bill. I have found the way in which he has analysed many of the arguments put forward in the Joint Committee to be a great test of the assumptions of many of the people who have been involved in this legislation for a long time. So it is with great regret that I take issue with him on this point.

I do so for one principal reason. One of the many amendments brought forward by the Government related to equal treatment. It was a response to amendments brought forward at an earlier stage from these Benches. During the discussion on that amendment, I stated that I believed that the provisions surrounding equal treatment for people who have disabilities, who are old or who have specific conditions were perhaps some of the most fundamentally important provisions in the Bill.

As someone who has supported the Bill as wholeheartedly as possible all the way through, I have throughout all our discussions and deliberations never ever discounted the fears that people with disabilities have about the legislation. The arguments were put forcefully to the House by the noble Baroness, Lady Chapman.

Those of us who were involved in the Joint Committee discussions will remember the extremely powerful arguments put forward by Jane Campbell, a severely disabled lady, who wrote about going to hospital and willing herself not to sleep for the duration of being in hospital in order that she would not receive adverse treatment. Jane Campbell made one particular point very forcefully: that the one person she trusted above anyone else was her husband. Not doctors, not friends, not advocates; her husband.

She had clearly done what has to be done under Clause 11(8)(a) as it stands at the moment. She had discussed in great detail with her husband, at a time when she had capacity, exactly what she wanted to happen. The clause states that subsection (7)(b), which relates to lasting powers of attorney,

"does not authorise the giving or refusing of consent to the carrying out or continuation of life-sustaining treatment, unless the instrument contains express provision to that effect".

I believe that means that it has to be in writing. So an attorney will have to have debated and discussed this matter with the person, and it will have to have been recorded in writing.

As the noble Baroness, Lady Knight, said, we are talking about one of the most difficult and serious decisions that any person can make. It cannot be taken lightly. I therefore believe very strongly—and the noble Lord, Lord Pearson of Rannoch, may perhaps be surprised to hear me say this because we have not always agreed throughout the Bill about the balance that carers and relatives should have in these matters—that an attorney, a person chosen by someone, should be the person who makes this most serious of all decisions.

I do not for one moment in any way question the motivation of the noble Earl, Lord Howe, but, just this once, I believe that the balance of the argument is perhaps against him. I am sorry, but I cannot support him on this occasion.

Photo of Lord Carter Lord Carter Labour

My Lords, I understand entirely and recognise the sincerity with which the noble Earl, Lord Howe, has brought forward the amendment. He has drawn our attention to what could be a serious problem. However, I want to try to interpret the amendment by reference to the family situation I described on Report, where life-sustaining treatment was deliberately withheld so that a dearly-loved son could die peacefully at home, where his last hours were assisted by morphine.

As I understand the amendment, if an LPA had been in existence and Amendment No. 3 was in the Bill, that decision would have been removed from the parents—although obviously they would have been consulted—and left to the doctors. It may well have been the same decision, but it would have been the doctor's decision and not that of the parents.

In the same family, there was a possibility that an agonising decision might have been taken if their daughter was in a persistent vegetative state. Again, if an LPA had been in existence and Amendment No. 3 was in the Bill, that decision would have been removed from the parents and left to the doctors; and then, of course, eventually to the court.

When we refer such cases to the court, which we do often, we have to remember that these are intensely agonising times for people and that it is a big step to take in such circumstances. In that family, I have no doubt that if the son and daughter had decided to have lasting powers of attorney they would certainly have wished their parents to be named and would have wanted them to take those decisions, in consultation with the doctors, and not just leave them to the doctors.

This is the other side of the argument to the one presented by the noble Earl, Lord Howe, and should be taken into account in an attempt to find where the balance lies.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

My Lords, I have tried, as amendments have appeared, and when the Bill first came before your Lordships' House, to look at this in the context of a clinical scenario. I completely concur with the noble Baroness, Lady Barker, that the vast majority of patients feel very much more comfortable with their own family member, with whom they have often had endless discussions, going round this way and that and looking at "what if". I have spoken to Jane Campbell and I know that that is the way in which she considered all the scenarios with her husband and also with her sister, for whom she also felt a great deal of trust. I am also sadly aware, as a doctor, that a lot of patients do not feel a great deal of confidence in us as a profession at difficult times, nor in the NHS.

However, there is another side to this: there are times when a clinician can feel that a family member may be taking a decision which is not in the best interests of the patient or pushing towards it. In those situations, the doctor will take advice from the Medical Defence Union. We speak about the GMC, but it is the Medical Defence Union that I phone up when I am uncertain and feel that I am in a corner. The Medical Defence Union will support you and will also be the legal adviser to your trust.

There is no doubt that in the trusts where I work, where relatives wanted to shorten a life by refusing a treatment which I, as a clinician, felt should be prolonged because there was a chance of recovery, even though the relatives did not see it, I would be supported in eventually, if necessary, going to a court to be able to continue to treat that patient. There are very few times when clinicians feel that treatment should be continued and the family want to withdraw it. It is much more common that a family desperately want to continue treatment which the clinician knows is futile.

I accept that the purpose of an amendment is to allow for those difficult and complex situations. But I have a concern that if we put the power back in the hands of the doctors rather than respecting the position of the attorney, we will fundamentally undermine the principle of patients being able to decide, in advance, in the event of their incapacity, what they would want when they have had time to discuss it in detail with a person they trust.

I urge the House to think very carefully about the wording of the amendment. We speak a lot about doctors making decisions, but it is the family who have to live with their grief after somebody has died. It is the family who wake in the night and think about whether they made the right decision. I see many bereaved families in turmoil because of decisions which they were the tiniest bit worried might have been the wrong decisions. However, I am afraid that I do not see as many clinicians—although I see some—who wake in the night worrying over decisions. That is the nature of the profession; you move on to the next patient. You do your best for the patient in front of you, but it is the family who have to live afterwards in their grief.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

My Lords, I support the noble Earl, Lord Howe, who introduced the amendment at an earlier stage and has rightly returned us to it today. These are, as the noble Baroness, Lady Barker, implied, Solomon's judgments; they are difficult and complex questions. I am sure that my noble friend Lady Finlay is quite right that whatever decision we take, there will be agonising cases in the future where people will continue to grieve at length after the loss of a loved one and wonder whether they have taken the right decision. Whether an attorney or a doctor takes that decision, that will be the reality, whatever happens.

The noble Lord, Lord Carter, was right to recall again the scenario that he placed before your Lordships at an earlier stage. The point about that is that under the current law, the decision in that case was able to be reached in consultation with the doctors, and the family's wishes were observed. So the noble Earl, Lord Howe, is asking for no more than upholding the status quo.

The Bill allows the transfer of decision-making power to a third party proxy, the lasting attorney. The active decisions will then be made when the patient is mentally incapacitated and that may mean no more than unable to communicate a decision. That is set out in Clause 3(1)(d). The lasting attorney could thus make a decision in all sincerity and good faith to require the doctor to withdraw or withhold treatment from the patient, genuinely believing that the patient would have wanted that. The patient, however, may have changed his or her mind. Very well then, you will say—that is fine. But if the patient cannot communicate that change of mind, then he will be taken to "lack capacity", which may be only temporary. That is set out clearly in Clause 2(2).

In that case, it will be the attorney's will that prevails, not the patient's will. That will, of course, undermine rather than enhance the patient's autonomy, the point made by the noble Baroness, Lady Barker. If the treatment is life-sustaining, however, the consequences will be irreversible. When the attorney requires the doctor to withdraw the life-sustaining treatment and the patient dies—even if the patient's incapacity is only temporary—it may be too late to see what the patient decides when he returns to capacity, for he may by then be dead.

It is difficult to think of a more complete example of the undermining of a patient's autonomy. That is why I am troubled by the constant refrain that the Bill will somehow enhance the patient's autonomy. Here is an example of where it might do the very opposite.

As we have been reminded, we must also consider the position of carers, doctors and nurses. The lasting attorney will be able to require—that is to say, compel—them to withdraw or withhold treatment. Now if that treatment is life-sustaining, the Bill will allow the lasting attorney to compel a doctor to preside over the ending of his patient's life by the withdrawal or withholding of that life-sustaining treatment. Let us not forget that what is ordinary treatment today can easily become life-sustaining.

The Government withdrew the power to make refusal of life-sustaining treatments from the deputies and they were right to do so. The same must be done in respect of lasting attorneys, because the attorney's view may no longer be that of the patient, but the attorney will prevail if the patient cannot communicate, even temporarily. If the treatment is life-sustaining, the patient may die—in the case of withholding food and fluids, the patient will die—and patient autonomy will be fatally exploded. I do not believe that that should be permitted where the patient's life is at stake. Hence, such power should be withdrawn from the lasting attorney, which is why I support the amendment.

Photo of Lord Patten Lord Patten Conservative 3:45, 24 March 2005

My Lords, I strongly support the amendment in the name of my noble friend Lord Howe. He explained the reasons for it in his excellent speech a few moments ago. I think that my noble friend is hoping to guard against some extreme cases and make sure that there are no loopholes. This concerns a lot of people in the outside world to whom we must listen, as well as experts, to whom we must obviously also listen with due deference.

Since the Bill has been produced, there has been a lot of concern. The Pro-Life All-Party Group—of which, for the avoidance of doubt, I am not a member—has expressed this concern. I suspect that, as the times alter, as the noble Lord, Lord Christopher, referred to in the last debate, and some of these issues such as euthanasia reach greater and greater salience, it may well seek to rename itself the all-party anti-death group. It has expressed concern that a decision by the donee of a lasting power of attorney will override the medical decision of the healthcare team. I would always wish the healthcare team to be important, not HR directors or social workers. I say that with respect to both professions, of course.

I regret that there is no provision for a second independent medical opinion procedure in the case of disputes between the attorney and the doctor. There was tabled an amendment in Committee, as the Minister will remember, to introduce a requirement to seek a second medical opinion in the event of disputes. That was rejected by the Government, and I regret that. If they had not rejected it, we would not be having this debate this afternoon.

As a result, disputes will need to be referred directly to the court. As my noble friend Lord Howe observed last week, how many medical professionals, when faced with a determined attorney with whom they disagree will have the time or inclination to petition the court? How many NHS trusts, as we heard in earlier debates, will be willing to fund expensive litigation? The excellent speech of my noble friend Lord Howe last week bears re-reading in Hansard.

The evidence is worrying. I pick as my witness Professor Sheila McLean, a member of the Voluntary Euthanasia Society and a distinguished academic at Glasgow University. The professor said the following about proxy decision makers when giving evidence to the Justice Committee of the Scottish Parliament in May 1999:

"All the evidence is that proxy decision makers get it wrong more often than they get it right, but that they do so in good faith . . . We know that proxy decision makers are pretty inaccurate. Most of the research on this subject has been done in the United States. If the person who has appointed the proxy is asked what he wants the proxy to say, and then the proxy is asked what they think that the person would want them to do, the evidence is that there is very little congruence between the two views".

That is research-based evidence. I am a strong exponent of research-based evidence in making up our mind on the issues. So I find the points that my noble friend has made very powerful.

I end on this note. The attorney or proxy decision-maker will have the power to refuse medically advised treatment, yet the research indicates that that may not be making the correct decision. They are life and death decisions. The attorney may have power also over a patient's financial affairs. Those are extreme examples, but the House has to guard against extreme examples. There may well be circumstances in which the family will benefit from a patient's death. Under the Bill, the attorney would have the power to refuse treatment and so, perhaps, hasten that patient's death. It may not happen very often and it may only happen several years down the track, but you can bet that it will happen under the provisions of this Bill. This is a pressing conflict of interest that is not addressed by the Bill. My noble friend Lord Howe was absolutely right when he said in his excellent speech that the issue was "fraught with risk". That is why I support so strongly his amendment.

Photo of Lord Christopher Lord Christopher Labour

My Lords, does the American research to which the noble Lord referred look also into the extent of the knowledge of the patient of the situation and the knowledge of the proxies of the situation?

Photo of Lord Patten Lord Patten Conservative

My Lords, I am afraid that I cannot answer the noble Lord, Lord Christopher, on that point, but I will look into it. As I used to say when I clutched the edge of a Dispatch Box, I will write to the noble Lord.

Photo of Baroness Chapman Baroness Chapman Crossbench

My Lords, the amendment gives me great cause for concern. Throughout our debates, I have argued for a person's whole life to be considered. If the amendment is accepted, end-of-life decisions would become medical decisions, based on the person's condition and nothing else. That would jeopardise the lives of many disabled people.

I have been very vocal about my worries about the Bill. Having listened to the debates in this place and following a meeting with the noble Baroness, Lady Ashton, I believe that my remaining concerns can be addressed in the codes of practice and other guidelines.

I therefore hope that I can be involved in drawing up the codes of practice to ensure that the concerns that have been voiced by me and others in the House are incorporated. It is essential that all that we have been promised is included to protect the people who fall within the scope of the Bill and any one of us who at a later date could lose capacity.

Provided that the protection is there, the Bill will protect many people who are at present unprotected. In many cases, this is the patient; in some cases, the doctor. The Bill includes many amendments made in this House. I thank the Minister for her time and patience.

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 begin by echoing the sentiments of the noble Baroness, Lady Barker, without embarrassing the noble Earl, Lord Howe. Sometimes, Members of the Opposition or those who sit on other Benches get credit only when they win votes, but we should not be in any doubt that the noble Earl has played a significant part in ensuring that the Bill has been amended appropriately, and I am very grateful to him.

I am grateful also to the noble Baroness, Lady Chapman, for her time, energy and patience in helping me think through some of the issues in the Bill. It would give me enormous pleasure if she were to participate in our work on the code of practice. I look forward to that very much. Her participation would be invaluable.

I begin by saying how we got here. We have debated this important amendment. I accept that it is important, and I am grateful to the noble Earl for tabling it again. He and I agreed on Report that we would reflect on the issue further. I have done that too.

The amendment is important for two reasons. First, the noble Earl has rightly focused on the important change to the law in the Bill. Under the current law, a parent can give or refuse consent to treatment on behalf of their child, but no one can do that for an adult who lacks capacity. Only the doctor can decide whether to give treatment to such an adult, or, in exceptional cases which we have discussed in your Lordships' House, the court. When the Bill becomes law, people can, if they choose, give someone they love and trust the power to give or refuse consent to treatment when they lack capacity to do so themselves.

The second reason why the amendment is important is that it is at the heart of the reason why the Law Commission and others have wanted this Bill for 15 years. It is a very welcome change. Most people are shocked to discover that their so-called next of kin—husband, adult son or daughter, for example—would have absolutely no rights to make decisions for them if they were incapacitated. That is why, some 15 years ago, the Law Commission proposed the idea of a lasting power of attorney for health. In all the years of consultation since then, the ability of people to appoint a loved one to give or refuse consent to life-sustaining treatment, with all the safeguards that I outlined on Report, has been fully supported.

Organisations such as Age Concern and the Alzheimer's Society strongly believe that the vulnerable, ill people whom they represent will be strongly reassured that this choice exists, as they contemplate future incapacity. Some people will decide to take the option and some will not, but they very much want that choice to be available. Both organisations oppose the noble Earl's amendment. The Alzheimer's Society has said that it,

"opposes any moves to deny attorneys the right to make decisions about withholding and withdrawing life sustaining treatment. It is right that a person nominated . . . through an LPA . . . should not be restricted in their ability to act in the best interests of P. Someone making an LPA will have to give clear instructions that the LPA applies to decision-making about life sustaining treatment, for the person using the LPA to have that . . . power. This requirement is a strong safeguard against abuse".

I agree with the noble Earl that the clause and his amendment to it are important areas for debate. I respect his views. I have learnt from the discussions that we have had. I can assure him that I have thought carefully about the points that he has made in your Lordships' House and in meetings with me. However, I simply cannot agree to the amendment—partly because it is undesirable; partly because I think that it is unnecessary. I shall briefly walk your Lordships through the six reasons for my opinion.

First, it would weaken the abilities of families to speak up for their loved one. We have heard many moving stories in our debates on the Bill. That is why the Bill is so important and why I am proud to be taking it through the House on behalf of the Government. A frequent theme in those stories is the difficulty that people who lack capacity or have disabilities can experience in making their voice heard. I remember well the noble Baroness, Lady Chapman, speaking about that. She spoke of her family's love and determination to ensure that her voice was heard when doctors were unwilling to listen, preferring instead to focus on her disabilities.

If they had experienced such a situation, someone could well decide that they wanted an attorney—someone whom they love and trust—to take best-interests decisions about treatment, including life-sustaining treatment, if they lost capacity. They might decide not to rely on a doctor who might be unable, or unwilling, to take the time to hear that unique voice of the patient. I do not know what the noble Baroness would choose for herself, but I want her, and all of us, to have the option.

Another theme of the stories that we have heard is the devotion of families to their loved ones—a love that pushes through the most distressing and relentlessly difficult circumstances. I was struck by this in listening to the noble Lord, Lord Pearson, for example, and I was profoundly moved by the account of my noble friend Lord Carter of the heartbreaking choices to be made by families who lose children in adulthood. As my noble friend said, the decision was ultimately made in his case between the doctor and the family at the same time—but a doctor could, under current law, have overruled such a request from the family. An attorney with the authority to make life-sustaining treatment decisions—assuming of course that the choice is clinically appropriate, and in the person's best interests, which is a matter included in the Bill—could decide that the person should spend those last, vital few days at home in familiar surroundings with the people whom they love. Again, we cannot say whether an attorney would have been chosen in these situations. But that highlights the circumstances faced by many thousands of families every day. If someone feels that it is right for them and their loved ones to appoint an attorney while they have capacity, who will, they have agreed, be able to take decisions on life-sustaining treatment, who are we to put ourselves in their shoes and decide that we should remove that option from them?

The second reason is that it would put someone chosen as an attorney in a weaker position than a deputy appointed by the court. As noble Lords said, we listened to concerns about deputies' involvement and we concluded that we should remove the power of court-appointed deputies to refuse life-sustaining treatment. That amendment was welcomed by the noble Earl, Lord Howe, and other noble Lords at last week's Report stage. Deputies are not chosen by the person who lacks capacity, so we decided to listen to your Lordships' House and to be cautious. But this amendment is different. Not only does it remove the power of someone chosen by the person when he or she has capacity, to refuse consent to life-sustaining treatment, as we have done with deputies, but it removes the power of that loved one to give consent to life-sustaining treatment. This amendment diminishes the rights of the person who lacks capacity, in a Bill where everywhere else we have sought to enhance those rights. It cannot be correct that someone appointed by the court can have more say in life and death decisions than someone chosen by the individual.

The third reason is that healthcare attorneys will be welcomed by the medical profession. We know from our many discussions with the GMC, BMA and other stakeholders, that doctors fully support giving power to the attorney, if that was what the patient decided when they had capacity, to make the full range of treatment decisions. As the noble Baroness, Lady Finlay, said, doctors can find it very difficult to decide what treatment is in a patient's best interests when they do not know much about the patient, or when a number of relatives give conflicting views. If someone has planned ahead and thought carefully about who they would like to give consent on their behalf, that gives confidence to doctors that they are treating the individual according to his or her best interests. They believe that lasting power of attorney provide a way to make better treatment decisions for people at fundamental points in their lives.

The fourth point is that the attorney has this power only if it is explicit and written in the lasting power of attorney. There can be no mistake about whether the donor of the lasting power of attorney really intended the attorney to make decisions about life-sustaining treatment; and the donor will have to discuss that aspect of the lasting power of attorney with the prospective attorney. I know that some people are concerned that people will not want to give their loved ones such an onerous duty as to make life or death decisions in what will undoubtedly be very distressing circumstances for them personally. That is a valid point, but we have to remember that they do not have to give them this power. It is not automatic. The fact that it needs to be an explicit provision in the lasting power of attorney must cause people to discuss it, and sign up only if both parties are content with what it includes and what it will involve. We shall ensure that there is guidance and information to help people be absolutely clear about that process.

Fifthly, attorneys do not make clinical decisions or decisions about medical best interests. I know that there have been concerns that it is not safe for attorneys to take over the medical decision-making role of the doctor. I can completely reassure your Lordships' House on that point. An attorney has only the same power as a patient who has capacity, so he can only give or refuse consent to treatment; he cannot take the medical decision. The doctor continues to have the professional duty of care to his patient and can be sued in negligence for breaching that duty.

In any given treatment decision, the doctor must make clinical judgments about which treatments of those available for a given condition would be accepted as proper by a responsible body of professional medical opinion. That is the so-called Bolam test. In many situations, there will be a range of medically appropriate options that are what might be called Bolam compliant. It is clear from case law that doctors have a duty to advise patients of those alternative treatments when seeking consent. If the patient lacks capacity to make a decision on the basis of the advice, the doctor must then himself decide which of the possible treatment options would be in their best interests.

Under this Bill, patients have an attorney, if they want one. Then it will be the attorney's role to decide which of the treatment options is in the patient's best interests; but it will not be the attorney's role to take the medical decision of which treatment options to offer in the first place. I shall give a very short example. A doctor may believe that providing and withholding artificial nutrition and hydration in the last few days of a person's life are both Bolam-compliant treatment decisions. He may have doubts about whether the burdens outweigh the benefits of the treatment but the attorney knows that the patient, perhaps because of a very strong religious commitment, would definitely wish to receive artificial nutrition and hydration and believes that the option to give ANH is in the patient's best interests. The attorney ensures that treatment is continued for as long as it is Bolam compliant—in other words, that clinically it is not detrimental to the individual and is in the person's best interests. That would be removed by this amendment.

Sixthly, and finally, doctors must go to court if they disagree with attorney's assessment of best interests. We know that there are concerns about what happens when a doctor does not feel that the attorney is genuinely acting in the patient's best interests. The answer is very straightforward: if the issue cannot be resolved, the doctors must seek the guidance from the Court of Protection to ensure that a decision in the best interests of the patient is reached. We know that that works, because it is exactly the same as the sharing of responsibility between clinicians and parents when parents are giving or refusing consent on behalf of their children. One example, which I gave at Report and shall not repeat, is the case of baby Charlotte Wyatt. Noble Lords have watched and listened to that story, which has very difficult and heartbreaking circumstances, in which the court made a decision.

In fact, if a doctor believes that an attorney is making a decision that is not in the person's best interests, they may be liable in negligence if they fail to go to court. Clause 6(7) enables doctors to treat the patient, without fear of liability, while they seek guidance from the court. In the case of Glass before the European Court of Human Rights in 2004, the court held that doctors were acting contrary to the ECHR in failing to going to court when they disagreed with a mother's refusal of consent to treatment on behalf of her son.

I always try to listen very carefully in the course of our debates, and I am happy to say two things that are particularly relevant to the noble Lord, Lord Patten. First, I am very happy to make a clear commitment in the code of practice that when a doctor believes that an attorney is making a decision contrary to a person's best interests, the doctor should seek a second medical opinion and discuss further with the attorney. The noble Lord, Lord Patten, said that we would not be having this debate if I had accepted the amendment in Committee. I cannot go so far as to accept the amendment but I commit the code of practice to having the measure within it. I believe that is the right and proper place for it to be. I hope that the noble Lord will welcome that.

Secondly, as regards the code of practice, if agreement cannot be reached, the doctor may apply to the Court of Protection, and life-sustaining treatment, or treatment necessary to prevent a serious deterioration in the person's condition, should be provided pending an outcome from the court. I commit that that will also be in the code of practice, which is where it should be.

As I said at the beginning, I understand why the noble Earl has brought this amendment. However, some of the concerns that underlie the amendment are unfounded. Lasting powers of attorney will make decisions better and safer than now. The amendment would strike out an important choice that some people will want to make in the context of loving and supportive family relationships. Indeed, it would diminish the role of loved ones in comparison with a deputy appointed by the court, which cannot be right. Each person's choice will be different. However, each person's choice should be their own, taken to prepare for the infinite variety of challenges and sorrows that each family faces, and to fit the way in which each family chooses to meet them. We will help and guide people through these choices, but we should not take these choices away. I hope that the noble Earl will withdraw the amendment.

Photo of Earl Howe Earl Howe Spokespersons In the Lords, Health, Spokesperson In the Lords (Also In the Health Team), Family

My Lords, I am very grateful to all noble Lords who have taken part in this debate. We have heard arguments on both sides expressed with equal force and equal conviction. I very much respect the views of those who have argued against the amendment. I would only say that my amendment would not remove the ability of a close relative or friend to be consulted on what constitutes the best interests of an incapacitated patient. Indeed, it would be the duty of a doctor who did not know the patient to consult an attorney or close relative in making his decision. But the decision on treatment would rest with the doctor.

I have listened very carefully to the noble Baroness and I very much welcome the undertakings she gave with regard to the code of practice. Those are helpful undertakings. On the other hand, I hope she will understand that this is an issue of very considerable importance regarding what appears or does not appear on the face of the Bill. I feel on balance—I hope that she will forgive me as she has been a model of courtesy and helpfulness throughout the passage of this Bill—that this is too important an issue not to be resolved by testing the opinion of the House.

On Question, Whether the said amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 18; Not-Contents, 118.

Division number 2 Private Parking: Ports and Trading Estates — Mental Capacity Bill

Aye: 16 Members of the House of Lords

No: 116 Members of the House of Lords

Aye: A-Z by last name


No: A-Z by last name


Resolved in the negative, and amendment disagreed to accordingly.

Clause 32 [Consulting carers etc.]:

Photo of Baroness Knight of Collingtree Baroness Knight of Collingtree Conservative 4:21, 24 March 2005

moved Amendment No. 4:

Page 19, line 10, at end insert—

"(c) has no connection with R"

Photo of Baroness Knight of Collingtree Baroness Knight of Collingtree Conservative

My Lords, I have tried hard to assess the responses that I had to an earlier amendment on the subject. There was confusion at that time, because two amendments were debated at the same time. The only real link between them was that they both referred to the conditions on which research could be carried out. However, they made two completely different points and were related to two different clauses.

Since that debate, I have tried to unravel the responses that I received, and I do not seek to raise again my original attempt to give extra protection for patients by changing "and" to "or" in Clause 31. I accept the points made against that; I listen most carefully and try to accept things when I can. However, after long consideration of the responses to my original amendment—then Amendment No. 62—I cannot accept that they covered my arguments at all. With a slight alteration, I have tabled Amendment No. 4.

I suggest that a paragraph (c) be inserted into Clause 32. The clause covers the rules for a researcher seeking to research or experiment on a subject and must be made watertight. The Bill must make it clear that the researcher cannot use a friend or relative to okay the research, which might be of great potential pecuniary or other advantage to the researcher. We are talking about big bucks. The research could be a winner, particularly if the researcher was a member of the staff of a pharmaceutical company or something of that kind. We are talking about the possibility of holidays in the Bahamas, Rolls Royce cars and diamonds for the wife. I am determined that we must be certain that those who consult and give the researcher the go-ahead must not have any link with him or her.

As I read and reread what the noble Baroness, Lady Andrews, said in response to my earlier effort, I am far from convinced, although I withdrew the amendments at the time. I really cannot see how ensuring that a person to be consulted for a go-ahead should not be friend or relative of the researcher would make research impossible. I was told that at the time. They could not ensure that the link would not be possible, because that would make research impossible. I find it difficult to see how that objection could be upheld. I cannot see, with nothing in the Bill to ensure that a researcher does not choose a consultee who is, as it were, on his side, that the existence of an ethics committee—as was suggested—would overcome the danger. I cannot see how my suggested insertion could wreck the Bill.

On 17 March, the noble Baroness, Lady Andrews, speaking against my amendment said that there would be guidance coming down like a beam of sunshine from a benevolent power far above us—at least coming via the Secretary of State—that would include a connection between the researcher and the research, on which there would safely be consultations. I am sorry, but I find that too vague. We have no idea what the guidance would be, what consultations would take place or with whom, nor do we know anything about the timescale before any of this could take place. I suggest to noble Lords that we are being asked to take an awful lot on trust.

The noble Baroness continued:

"we intend to ensure that healthcare providers . . . make arrangements . . . to identify a panel of people who could be available to act."—[Hansard, 17/3/05; col. 1515.]

She meant that they would act as consultees. None of that is clear. Where will such people be found? Will they be paid? How much will they be paid? From where will the funds to pay them come? I do not know of a hospital which has spare cash to fritter around on people of that kind. Will there be a limit on the number of cases that such people could take on at any given time? What is the training that we are told they will have to undergo? Who will pay for that, how long will it last and what will it consist of?

Where are all the social workers, NHS employees or clinical staff or members of the board of the trust of the hospital? All were mentioned by the noble Baroness. Where are all the social workers who have so much spare time on their hands that they would be consulted or could give the time to be consulted? Every social worker that I know is rushed off his or her feet. All of them complain to me that they have far too many cases already. Pushing more work on them would not be acceptable. Time and again there have been cases in the newspapers where disaster has occurred because, it is said, the social worker was so busy and had so many other cases on his or her desk that they had no time to deal with that one properly. Yet, apparently, somewhere there is a list of people who will be able to spare time for this. I have never met any NHS employees or clinical staff who speak about having time hanging on their hands.

Several of your Lordships who spoke in the previous debate expressed agreement with my principle that those consulted by the researcher should not be friends or relations of the researcher. I am grateful to my noble friends Lord Patten and Lord Alton. I was also interested that the noble Lord, Lord Turnberg, clearly understood what I was trying to do and was not out of sympathy with it.

There is no doubt in my mind that it would be wrong to permit a researcher to nominate his wife, girlfriend, cousin or uncle or a close friend to help him to carry out his desired research. Yet, so far, the Government have refused to allow an amendment which would enable my proposed new subsection to be inserted into the Bill.

I say with the greatest respect that no valid argument has been made against my suggestion, although the rule should certainly be made clear in the Bill. In the light of that, in all conscience, I am bound to raise the matter again. I beg to move.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench 4:30, 24 March 2005

My Lords, I rise briefly to support the amendment standing in the name of the noble Baroness, Lady Knight, as I did at an earlier stage. Members of your Lordships' House will recall that, when the amendment was tabled on the previous occasion, it was more widely drawn. There was some concern that it included the phrase "in any circumstances whatsoever". I think that the noble Baroness, Lady Andrews, was right to say that that would cause a number of problems in interpreting the amendment.

The noble Baroness, Lady Knight, has done us a service in taking away the amendment and drawing it more tightly. She has also provided us with an amendment that is entirely compatible with the preceding paragraphs in Clause 32(3) on page 19 of the Bill. Paragraph (a) states that the person is,

"prepared to be consulted by R under this section, but", under paragraph (b), that he,

"has no connection with the project".

If the noble Baroness's amendment were accepted, the subsection would go on to say that the person,

"has no connection with R".

I think that that is entirely consistent with the way in which the Bill is phrased, and it would add one more safety clause to the Bill—one that I would personally welcome.

As this is the only opportunity to say anything further on the research provisions in the Bill, and as this is germane to the amendment, I thank the noble Baroness, Lady Andrews, for her letter of 24 March. It responds to a point raised during our Report stage, when I asked about significant discrepancies that might arise between the research provisions in the Bill and the Council of Europe's convention on human rights and biomedicine. I was extremely grateful to the Minister for setting out those points and for copying them to other noble Lords who had taken part in the debate. Perhaps she could arrange for a copy of the letter to be placed in the Library so that others who might be interested in this issue are able to read it.

Photo of Lord Turnberg Lord Turnberg Labour

My Lords, I have to apologise to the noble Baroness, Lady Knight, for always seeming to speak against her amendments. However, I do so with some humility because, on the previous occasion that we debated this amendment, I agreed with the principle behind it and I still do.

I think it is right that someone who has some direct close connection with R should not be the person finally to give permission for the research to be undertaken. I accept that entirely. However, as I see it, the problem with the amendment is that a person "having no connection with R" could apply to anyone on the staff of the hospital, anyone on the staff of the medical school and anyone in a relationship of any kind with R or even anyone who knows R. It would be extremely difficult to find someone who did not know R in the environment in which permission was being sought. So I do not think that the amendment is workable. In fact, it would prevent anyone doing research in the situation that we are talking about—that is, the emergency situation.

Subsection (3)(b) states:

"has no connection with the project".

That would include anyone who had a pecuniary interest in ensuring that the research was carried out—that is, someone who would make some money or profit from it. I think that that is covered by the words "no connection with the project". That, at least, would get round the problem of the person giving the permission not even having to know the person doing the research.

Photo of Baroness Knight of Collingtree Baroness Knight of Collingtree Conservative

My Lords, before the noble Lord sits down, I am very grateful because he always listens most courteously to what I have to say. I cannot quite link up the notion that if the researcher must have no connection with the consultee, he might be someone who works in the same hospital. Could it not cause a difficulty under Clause 32(3)(b) if the patient is in the same hospital as the project, as the noble Lord specifically mentioned? I cannot see that I am so wrong in tabling this amendment inserting paragraph (c). If there is a difficulty, and I do not accept that there necessarily is, why does it not apply to paragraph (b)?

Photo of Lord Turnberg Lord Turnberg Labour

My Lords, the difficulty does not apply to Clause 32(3)(b) because a person can quite easily be in a hospital, not know anything about a research project in the same hospital, and still know the researcher. That would be entirely reasonable.

Photo of Lord Patten Lord Patten Conservative

My Lords, I rise to agree with the noble Lord, Lord Turnberg, in his support of my noble friend's underlying principles. However, I respectfully disagree with his dissent from my noble friend's excellent redrafted amendment. I think it is crystal-clear and in tip-top shape. I do not think that it gets in the way of pukka research in any way. I support my noble friend.

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

My Lords, I am grateful to the noble Baroness for giving us another opportunity to explore this issue and for the beam of light that she has shed on it. In earlier stages of the Bill, we had a good debate on research and I am very glad that we were reconciled on Amendment No. 60. But the noble Baroness has done the House a service by raising issues about the connections between people involved in research projects and the safeguards about who speaks for them and represents them.

I was impressed that she recast her amendment in a more specific manner, as the noble Lord, Lord Alton, noted. I wish that I could say that it satisfies our concerns, but it does not. I hope that I can convince her of why. I shall also take the opportunity to explain in more detail why we believe that the statutory guidance will do the job that she wants.

I shall start by saying that the issue she has raised is extremely important and it is right that we should consider it in detail. We must be as secure as possible that the interests of the people involved are being served. I promised that we would reflect. I take on board the worry that there might be a mendacious researcher who would be able to nominate a compliant friend or family member in order to enrol an unbefriended person in research. We looked very hard at what she was saying. We looked at different ways in which we could express this and flesh it out so that it would be clear to noble Lords and to researchers in the field.

Having considered that, I have concluded in all sincerity, and with the best consultation and advice, that we are best advised to strengthen the statutory guidance rather than to attempt to resolve the matter on the face of the Bill.

I shall explain why. I shall briefly offer three valid reasons that have led us to this conclusion. The primary reason is that the term "no connection with R" is extremely broad and difficult to interpret. I take the point made by my noble friend Lord Turnberg and shall return to it with an example in a minute. It is not only difficult to interpret the term consistently and satisfactorily in legislation, which would cause problems, but it might also have the perverse effect of excluding a range of individuals who would be appropriate consultees for the people involved.

The second reason is that it is important that researchers are clear about what they have to do to comply with the Bill and about all the safeguards that we have built into it. Not only that, but the Bill runs alongside the clinical trials regulations which govern research into new medicines and have been in force for some time. The wide scope of the Bill and the narrower scope of the regulations and the complex relationships between different health organisations and care organisations, which are involved in research provisions for the first time, must be aligned. It is far better to use statutory guidelines.

The third point is again about the safeguards. The safeguards are not only those contained in the Bill and bound by it. In Clause 32 we have the requirement that the researcher must take steps to identify someone who cares for the person, except in a professional capacity, and who is willing to be consulted about the person's participation in an approved research project.

If that is not possible because carers are genuinely unwilling or unable to do this—there may be such cases—or the person has no eligible carers, the researcher must nominate a third party unconnected with the research who is willing to act as a consultee. That person must be identified in accordance with statutory guidance to be issued by the Secretary of State and the National Assembly for Wales.

One thing I should say to the noble Baroness, which I may not have said on Report, is that if it is not possible to identify a suitable consultee, the assumption must always be that the person is not enrolled on the project. In any event, Clause 31(7) requires that the arrangements regarding consultation with a carer or a third party have to be acceptable to the research ethics committee. We had a long discussion at both stages of the Bill about how scrupulous the RECs are in carrying out their range of duties.

The term "connected" is very wide. Putting it in the Bill would make it extremely difficult to interpret. In the broad sense, what precisely is meant by having "no connection"? As the noble Lord, Lord Turnberg, said, it could be interpreted as someone with no professional or financial connection by virtue of working in the same organisation or same professional groups or belonging to the same professional society. But it could also extend to living in the same street, having a passing acquaintance or worshiping in the same church.

I appreciate that the noble Baroness said that she wanted to make the provision watertight, but the phrase does not do that. It is simply too broad. If researchers do not know how to interpret it, they will be confused and err on the side of caution. They may not feel able to approach someone they know and respect, perhaps a professional or social contact, who would be a suitable person. That may have the opposite effect to the one that is intended.

Let us say that a researcher with strong religious beliefs is involved in research with elderly patients with dementia, looking at the development of dementia in relation to brain development, using CAT scans. The researcher may know that the hospital's visiting chaplain has been appointed to the panel of third-party consultees and that he occasionally leads services. However, some of the potential research participants may have been the chaplain's parishioners. He may know of their previous wishes and feelings. Let us say that the researcher decides to ask the chaplain whether he would be willing to be nominated to the REC as the third-party consultee for any relative or unpaid carer who is willing to be consulted. Under the amendment, he would not be able to do so. The chaplain could not be said to have "no connection" to the researcher. The Bill, as it stands, would allow him to do it. We have to be careful of that type of case. Interpretation is the first problem.

The second problem is that we have to ensure that researchers are clear about what they have to do in relation to the Bill and to the related clinical trial regulations. We have to be pragmatic and sensible. The statutory guidance procedures allow us to align and to create a simple and effective mechanism that is well understood by researchers as we cannot actually go into the detail.

We have looked at the clinical trials model as a basis for the Bill. It is constructed in a narrower way which reflects the more limited scope of medicines trials. The regulations broadly say that if a "legal representative" cannot be found among P's next of kin, then the researcher must identify,

"a person, other than a person connected with the conduct of the clinical trial, who is . . . a person nominated by the relevant health care provider".

That definition has been drawn much more narrowly. The person should not work for the researcher or sponsor, or be supervised by the researcher. It does not say that the person cannot know or otherwise be connected with them. So, we cannot use that model because it is too narrow.

I shall explain why we need flexible regulations. We will prepare and consult. The noble Baroness asked about consultation, which is extremely important. We will consult on guidance on the interpretation of third-party consultees under Clause 32(3) and on the legal representation under Schedule 1 to the clinical trials regulations. That is the only way to align the different legal requirements into a single system of appropriately trained independent persons who can advise on enrolling people under the statutory frameworks. Its inclusion in regulations enables us to bring those two sets of requirements together in a fit and proper way that helps everybody involved.

The Bill also covers a wider range of health and social care research. We cannot simply require that the consultee be appointed by the healthcare provider; we must take into account the fact that some people involved in research projects may be in a care home funded by a local authority or cared for at home. We want the researcher to have the flexibility to use the appropriate third-party consultee, nominated by either his employer—for example, a trust or university—or another organisation, acting on behalf of the relevant local authority. Again, we are looking at the flexibility offered by statutory guidance and regulations.

We will have to look at those complex issues in more detail in the statutory guidance. The noble Baroness, Lady Knight, asked about that guidance. I am very happy to give her as much detail as we have available and certainly to keep in touch as the implementation programme progresses. I assure the House that the statutory guidance will say that the care organisations involved, whether trusts or local authorities, should work with the relevant research ethics committee to establish a suitable panel of people who can act as third-party consultees. That panel will be the responsibility of each trust or social care organisation and will be governed by the research governance framework. It will be set within a proper framework.

We have yet to decide on remuneration; it depends on who will be the employing party. Payment or other expenses will be part of the overheads charged to researchers or sponsors, so it will be built into the research programme.

The noble Baroness asked what sort of people would be involved. They could be existing employees, such as other clinical staff not connected with the trial, or social workers. I take the point about social workers' time pressures, but in this context we might be looking at hospital-based social workers, who may have other sorts of responsibilities and would take an interest in these issues. So the picture may not be so gloomy. There might also be non-executive members of the trust board and hospital chaplains. There will be a role for the independent mental capacity advocate. The REC will also have a role in ensuring that training is available.

I imagine that the training will include the sort of information and advice that is available to research ethics committee staff—the context of research, how it is managed and the social factors regarding the people coming forward.

The noble Baroness asked about the timescale for guidance. It will be issued after we have amended the clinical trials regulations. We aim to consult towards the end of the year. There is usually a three-month consultation period, in which we will ensure the noble Baroness is involved.

The third point is that all that will be backed up by the code of practice. It is extremely important that the safety and security guidance for researchers be made clear. There will be more information in the code of practice. Taking the advice of the noble Earl, Lord Howe, we amended the Bill on Report to require researchers also to have regard to the code of practice. It emphasises the statutory guidance from the appropriate authority under Clause 32(3) and will highlight the role of the research ethics committee.

I hope that noble Lords will understand that clinical researchers are also bound by a very strict research governance framework for health and social care; for example, the professional codes of the General Medical Council. They contain general safeguards against conflicts of interest and other forms of professional misconduct.

Those three points—interpretation, what we need to achieve to bring our provisions into line with each other for safety and security in the way that research is conducted across a very complex set of relationships and agencies, and the wider safety framework—will, I hope, reassure the noble Baroness, particularly in the light of what I have said about the detail that will be in the statutory guidance and the code of practice.

In response to the question asked by the noble Lord, Lord Alton, we will be pleased to put the letter of 24 March in the Library. I was very pleased that he was pleased that we had met some of his concerns. With those assurances, I hope that the noble Baroness will not be too disappointed and will feel that she can withdraw her amendment.

Photo of Baroness Knight of Collingtree Baroness Knight of Collingtree Conservative 4:45, 24 March 2005

My Lords, the noble Baroness is such a kind lady. She is painstaking and takes great care to listen to all that is said and to answer all of the points raised. In spite of all that she has said, I must put on record that what rather worries me still is that we are talking here about a person that the researcher nominates, not someone that a panel has nominated. Nothing that I have heard seems to prevent the researcher, who has to find his own consultee, asking someone with a close connection—his wife, girlfriend or one of the people I mentioned. I am not completely happy with that.

However, this is a day when, if my friends are not exactly receiving Maundy money from Her Majesty, they certainly have all gone off for the Easter holidays. Therefore, I do not intend to ask for a Division. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 42 [Codes of practice]:

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

moved Amendment No. 5:

Page 25, line 14, leave out from first "research" to end of line 16 and insert "in reliance on any provision made by or under this Act (and otherwise with respect to sections 30 to 34),"

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

My Lords, I can be very brief on these amendments, which are technical and make a correction from Report stage. Noble Lords will be aware that at Report stage the Government tabled Amendments Nos. 97 and 99, which have the effect of adding researchers to the people for whom the code will provide guidance and who will have a duty to have regard to it.

Those amendments at Report stage referred to research,

"approved for the purposes of this Act (and otherwise with respect to the provisions of sections 30 to 33)".

However, we introduced a new clause—Clause 34, as amended following Report stage—which provides a transitional regulation-making power to cover ongoing research.

The amendments before the House today are technical amendments which are needed to ensure that researchers who are involved in projects carried out in accordance with regulations permitted by Clause 34 also have regard to the code. Clause 34 provides for transitional flexibility for research projects that enrolled people with capacity before the commencement of Section 30, but where a person loses capacity to consent to take part in the research. As I have said, we believe that it is very important that researchers in that situation also have a duty to have regard to the code and that the Lord Chancellor must cover such research in the code of practice.

It is not a matter simply of changing the cross reference from "Clauses 30 to 33" to "Clauses 30 to 34". Clause 42 refers to a project approved for the purposes of this Act, which links back to Clause 31. Projects under Clause 34 will not have been approved in accordance with Clause 31, as the research will have started prior to the commencement of the Mental Capacity Act—as we hope the Bill will become. The research will have to meet the requirements of the regulations made under Clause 34. The amendments therefore refer to,

"any provision made by or under this Act (and otherwise with respect to Sections 30 to 34)".

I beg to move.

On Question, amendment agreed to.

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

moved Amendment No. 6:

Page 25, line 30, leave out from first "research" to end of line 31 and insert "in reliance on any provision made by or under this Act (see sections 30 to 34),"

On Question, amendment agreed to.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords

moved Amendment No. 7:

After Clause 58, insert the following new clause—


(1) There is to be a body, to be known as the Public Guardian Board.

(2) The Board's duty is to scrutinise and review the way in which the Public Guardian discharges his functions and to make such recommendations to the Lord Chancellor about that matter as it thinks appropriate.

(3) The Lord Chancellor must, in discharging his functions under sections 57 and 58, give due consideration to recommendations made by the Board.

(4) The members of the Board are to be appointed by the Lord Chancellor.

(5) The Board must have—

(a) at least one member who is a judge of the court, and

(b) at least four members who are persons appearing to the Lord Chancellor to have appropriate knowledge or experience of the work of the Public Guardian.

(6) The Lord Chancellor may by regulations make provision as to—

(a) the appointment of members of the Board (and, in particular, the procedures to be followed in connection with appointments);

(b) the selection of one of the members to be the chairman;

(c) the term of office of the chairman and members;

(d) their resignation, suspension or removal;

(e) the procedure of the Board (including quorum);

(f) the validation of proceedings in the event of a vacancy among the members or a defect in the appointment of a member.

(7) Subject to any provision made in reliance on subsection (6)(c) or (d), a person is to hold and vacate office as a member of the Board in accordance with the terms of the instrument appointing him.

(8) The Lord Chancellor may make such payments to or in respect of members of the Board by way of reimbursement of expenses, allowances and remuneration as he may determine.

(9) The Board must make an annual report to the Lord Chancellor about the discharge of its functions."

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords

My Lords, a version of this amendment was first tabled in Committee under the title,

"The Board of Public Guardianship Supervision".

Its origin was a view taken by the Opposition that the Lord Chancellor's Department had neither the resources nor, frankly, the sense of political priorities to scrutinise the work of the old Public Guardian Office in the way that it ought to have been scrutinised. We, therefore, sought to place between the Lord Chancellor and the new Public Guardian a board of control which, on the one hand, would be close to what the Public Guardian was doing, yet, on the other, sufficiently close to the Lord Chancellor for him to take notice of its views.

I was extremely fortunate to find opposite me at the Government Dispatch Box the noble Baroness, Lady Ashton of Upholland, who was most sympathetic to the concept we were advancing—although she was concerned about some of the details of the original amendment. So between the Committee stage and Third Reading I have had two meetings with the noble Baroness and her officials during which we have managed to recast some of those details and to massage the vocabulary. I hope, therefore, that it is fair to say that the amendment now before your Lordships is to all intents and purposes an agreed amendment.

I want to put on the record how much I appreciate the spirit in which the Government have approached this problem. I like to think that the operation of the new Public Guardian will be greatly improved by what we will be putting in the Bill. I beg to move.

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

My Lords, I rise briefly to thank the noble Lord, Lord Kingsland, for redrafting his amendment. Can he confirm that subsection (5)(b),

"at least four members who are persons appearing to the Lord Chancellor to have appropriate knowledge or experience of the work of the Public Guardian", is the provision that will enable carers and users to be part of the board? That was my concern when we debated the amendment at an earlier stage.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords

My Lords, I am most grateful to the noble Baroness for her intervention. She will recall that, in our original amendment, we placed the emphasis on medical practitioners and chartered accountants. The noble Baroness, Lady Ashton of Upholland, quite rightly pointed out that the role of the Public Guardian was changing and that, as far as the number of chartered accountants was concerned, it was an unnecessary ingredient to specify in the Bill.

Equally, while recognising that medical practitioners could play an important role, it was delinquent of me not to have also included carers. In the end we decided that the right approach would be to leave it open; but I know that this factor will be borne in mind when the regulations are made. I am enthusiastic that a certain proportion of those who sit on the board should have that kind of experience.

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 endorse everything the noble Lord, Lord Kingsland, has just said. This is an agreed amendment and I am extremely grateful to the noble Lord for raising the whole question from the beginning. On behalf of the Government, I am very happy to accept the amendment.

On Question, amendment agreed to.

Clause 61 [Scope of the Act]:

[Amendment No. 8 not moved.]

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench 5:00, 24 March 2005

moved Amendment No. 9:

Page 34, line 39, at end insert—

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

(3) Where a decision is made for a purpose or purposes not including the purpose mentioned in subsection (2), it is not within that subsection even if made with the belief that it will bring about P's death."

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

My Lords, the House will be relieved to know that this is the last amendment for our consideration today. Members of your Lordships' House have been very patient in listening carefully to all the arguments advanced at Second Reading, in Committee, on Report and again today.

These are issues of great moment. After all, in the United States at the moment the case of Terri Schiavo is occupying many people's minds; they are agonising over the decisions being taken there. The case has required the recall of the whole of Congress to meet on Palm Sunday last and the President to break off his holiday to come back and pass a new law concerning one patient.

We do not want to get into that kind of situation. Anyone who has followed that agonising case will know that it is precisely because we want to avoid that kind of scenario that we have spent so much time going into the detail of the amendments brought forward throughout the various stages of the Bill.

I return now to the question of advance directives and whether or not they are covered by the scope of the Bill; and whether a suicidally-motivated advance directive should be given force in the Bill to bring about a person's death.

Amendment No. 9 relates to the declaratory provision, which was Clause 58 but is now Clause 61. It provides that at page 34, line 39, there should be inserted:

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

(3) Where a decision is made for a purpose or purposes not including the purpose mentioned in subsection (2), it is not within that subsection even if made with the belief that it will bring about P's death".

The Archbishop of Cardiff, Peter Smith, engaged with the Government very early on about these questions and, indeed, the Joint Committee chaired by the noble Lord, Lord Carter, also considered them. The declaratory provision was drawn up in consultation with Professor John Finnis, the Professor of Law at Oxford University, who is an internationally renowned authority on these matters. Obviously the Government believed that he was a competent witness, as it were, because they engaged with him, and were very happy to do so.

I shared with him the debate that we had last week. I particularly drew to his attention some of the concerns raised by the noble Earl, Lord Howe, and I asked him whether it was possible to recast an amendment to deal with the issues properly drawn to our attention by the noble Earl in the correspondence that he circulated. It is on that basis that the amendment has been drawn up.

I asked Professor Finnis what conclusion he would reach if the Bill were to pass without such a loophole being closed. He said that the Bill,

"carelessly introduces a new culture of prescribing death by the artifice of arranged and managed omissions, or at least considerably reinforces that new culture. The government answers to our point about the circumventibility of cl.4(5), and our point about blatantly suicidal ADs, were utterly without merit or credibility".

That is the view of the person who helped to draft the declaratory provision in the first place.

The Archbishop of Cardiff said:

"Professor Finnis and I believe that a further amendment is still needed to ensure that the Bill confers no authority on expressly suicidal advance decisions. We therefore strongly support efforts of Members of both Houses who are seeking to introduce an amendment to exclude decisions from being given validity or authority by a Bill where they have a purpose of bringing about death or are motivated by a desire of doing so".

He added:

"I very much hope the government will reconsider its opposition to inserting such an amendment, which we firmly believe can be made without affecting the jurisdiction of the courts affirmed in the Bland case".

So, again, that is a clear statement that there is no desire to overturn Bland in the amendment. Professor Finnis was asked to draw up the amendment on the basis of that being the case, and that he has endeavoured to do.

I should add also that the right reverend Prelate the Bishop of Winchester has e-mailed me to say that, having carefully studied this issue, he strongly supports what is being attempted today to close this loophole. Although I know that there will be divisions on the Bishops' Bench, I wish to record that because the right reverend Prelate has been a strong supporter of the positions that people such as myself have been taking throughout the course of this legislation. I pay tribute to him and thank him.

The earlier version of the amendment was said to have faults, which I believe have been addressed. One objection was that by departing from the Bill's central principle of best interests, the amendment unhelpfully fetters both doctors and the courts. The amendment concerns, inter alia, advance decisions. The Government and the Bill have always made it clear that they are not, and cannot be, subject to the principles of best interests. We have to be abundantly clear about that. Advance decisions will thus be outside the best interests criteria and can be explicitly suicidal.

The other criticisms depend on the assumption that the amendment's second provision, subsection (3), cuts down the ordinary meaning of its first provision, subsection (2). It does not. Subsection (3) makes it clear that one may foresee death without it being one's purpose. Subsection (3) thus expressly permits the principle of double effect to operate and to allow medical staff to make use of it.

The amendment would not force doctors to keep treating a dying, unconscious patient, even where the treatment was futile and even where the family expressed the wish for the patient to die peacefully at home. That is important in the context of what the noble Lord, Lord Carter, said. That would not be a purpose to bring about death and would not be in this legislation. A court would no more construe the removal of futile treatment as such a purpose than it would construe it as an intention to kill.

By contrast, the amendment would not prevent doctors giving palliative treatment to a dying patient if, foreseeably, that might shorten the patient's life. On the contrary, subsection (3) specifically invokes the principle of double effect and retains it as a valid principle. It avoids the use of words such as "intention" and "foresight" because of the meaning given those words in the case of R v Woollin. It uses the words "purpose" and "belief" in order precisely to retain the rights of doctors to give palliative treatment even if foreseeably that might shorten the patient's life. The amendment achieves that aim perfectly clearly.

The amendment would not prevent those with certain religious convictions such as Jehovah's Witnesses and Christian Scientists making binding advance decisions refusing medical treatment—a right they have and would still have. The noble Earl raised that point. A refusal of medical treatment is not a purpose to bring about death, unless it is suicidally motivated. All now accept that Jehovah's Witnesses and others do not have such a motivation but have, instead, a religious and conscientious objection to certain types of treatment such as blood transfusions. That is not a purpose to bring about death. This is now clearer than ever in my amendment. In this form, it would be beyond doubt that in none of these three scenarios would any problem be given to doctors and patients by the exclusion in subsection (2) of the purpose of bringing about death.

Without the amendment, we have only Clause 4(5), the best interests provision, which prevents anyone in considering a person's best interests to be motivated by a desire to bring about death. But the clause does not apply to advance decisions, as the Government have made clear. Thus, without the amendment, it will be possible under the Bill for an expressly suicidal advance decision to be legal and to be binding upon the doctor with care of the patient.

The preservation in Clause 61 of the Suicide Act's prohibition of assisting suicide will not stop doctors being forced by the unamended Bill to engage in what many doctors and common sense regard as complicity in expressly suicidal refusals of treatment. The Government insist that Clause 61 and the Suicide Act have no relevance or application to advance decisions. Very well—then it will be possible to draft expressly suicidal advance decisions and, if the Bill is unamended, doctors will be forced to comply with them, regardless of whether they have a conscientious, Hippocratic objection.

Suicidal motive is not a strong indicator of lack of capacity to make an advance decision when it has been made well in advance with due specificity, in writing, witnessed, with the Bill's required statement of awareness of risk, and so on, by someone known to want or support assisted suicide or euthanasia. It would often be impossible for doctors to have any honest doubt about the validity of such an advance decision. Thus they would be forced to comply with them, even against their consciences.

It must be remembered that doctors are currently forbidden to cause harm, still less death. That is why they are forbidden to take part in executions, save to certify death. To depart from this principle is very serious and significant, but the unamended Bill does precisely that.

Application to the court by a doctor confronted with such an advance decision, even if permitted by hospital managers, would be of no help since the court, like the doctors, will be compelled by the unamended Bill to recognise the validity of such an advance decision and therefore to require the doctor to comply with it.

I shall say just a few words on what the amendment would not do. It begins with the words "Nothing in this Act". It would thus be restrictive only of decisions taken under the Act, and not decisions taken outside it by doctors, the courts or whomever.

I have been careful to take legal advice about this. In particular, the amendment would not reverse the Bland decision, although I for one would be glad if it did. That decision is outwith the Bill and would be unaffected by the amendment.

The Bill tends to fetter and restrict doctors and even the courts in ways that could be harmful to sick and vulnerable patients. Let us consider, for example, that a very old advance decision may not represent the patient's contemporary wishes, but the patient may be unable to communicate that change of mind. In that case, under Clause 3(1)(d), the patient will be taken to be lacking capacity, and so his or her advance decision will prevail, even if, unknown to the doctors and relatives, it no longer represents the patient's contemporary wishes. As the Bill stands, the advance decision will be decisive and binding. In such a case, the advance decision will have the unwanted effect of overriding the patient's change of mind because he cannot communicate it.

Photo of Baroness Hayman Baroness Hayman Labour

My Lords, I apologise for interrupting the noble Lord, but I heard him make the same point on an earlier amendment.

I fully accept what he said: we cannot look into the mind of someone who has lost capacity to see whether they have changed their mind, but surely that argument works the other way as well. People who had made advance decisions stating that they wished to have artificial feeding and hydration could equally have changed their mind, and, equally, doctors would be bound by the advance directive. The argument cuts both ways. It does not work only for an advance decision to refuse treatment.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

My Lords, I take the point that the noble Baroness, Lady Hayman, is making. She is right to say that such things cut both ways, but it is precisely because of that that I want to see such a provision in the Bill. It would safeguard against the abuses that can occur, particularly where the advance decision is suicidally motivated. The amendment is about that specific set of circumstances.

If the advance decision is suicidally motivated, it will have a purpose to bring about death, and the patient may no longer wish that. It is important that the House is clear about what the Bill will do in those circumstances. Since the patient will die, contrary to his contemporaneous but incommunicable will, it will be the final act.

It is hard, therefore, to imagine a situation where the patient's autonomy is more radically undermined and defeated. It is hard also if the advance decision is permitted to forbid life-sustaining treatment, hydration or nutrition. The patient may then needlessly die, and, in the case of foods and fluids, inevitably die, contrary to his current but incommunicable will.

The amendment would therefore resolve that issue. It makes a clear, straightforward and relatively short point, but without it, the Bill would continue to permit that situation and, to use the language of the Bill, the patient's autonomy will be radically undermined fatally and permanently. Nobody would wish for such a tragic outcome. I beg to move.

Photo of Baroness Thomas of Walliswood Baroness Thomas of Walliswood Women and Older People, Non-Departmental & Cross-Departmental Responsibilities

Amendment proposed, page 34, line 39, at end insert the words printed in the Marshalled List.

Photo of The Bishop of St Albans The Bishop of St Albans Bishop

My Lords, I apologise for rising prematurely. It reminded me of a rather odd thing that happened to me once in a crematorium. I was about to press the button and heard over the tannoy system, "Charlie Bravo 50, come in, please". It was the local police car going past. I apologise for my inability to understand all the rules.

I have the greatest respect for the noble Lord, Lord Alton, and his desire, which I share totally, that there should be no loopholes in the Bill that could be used to introduce euthanasia. But, unless I am mistaken—I really do not think that I am—there have been a number of amendments to the Bill that have closed all the loopholes possible. We have also had assurances on a number of occasions from the Minister that it is not the Government's intention to allow any such loopholes to exist that could be used for euthanasia or assisted suicide. I believe that there is also, therefore, in such statements, a matter of trust and honour. When such statements are made, I believe them, because this House is a place where honour matters greatly.

Examples have been given about someone who makes an advance directive which says, in certain envisaged circumstances: "I wish to commit suicide and to be assisted in my suicide by the only legal means available to me—that is, by withholding life-sustaining treatment".

At an intellectual level, that is a fascinating and rather macabre philosophical point to debate—the kind of thing that I would have debated 100 years ago, when I was at theological college. But actually, the distance in time between such an advance directive and the circumstances that then follow could be very long. I therefore find the gap between intention and outcome very difficult to comprehend.

I believe that the example is flawed, because the person making it—or so it seems to me—is playing a semantic game, in which withholding treatment and allowing nature to take its course is then redefined as suicide. I cannot get my head around what is going on in that person's mind to redefine things in such a way, unless it is for a strangely perverse and political purpose. I suppose that it would raise a question about whether such a chain of argument could be described as being entirely reasonable. So I do not believe that those semantic games could or should be taken seriously.

Clause 58 is fairly key, as far as I can see. The example is also flawed because there is no guarantee that the circumstances that that person imagined when drawing up that extraordinary advance directive will necessarily be the ones that apply exactly at the time. Thirdly, I confess myself baffled, as I suspect that the noble Baroness, Lady Hayman, is, about how one can actually know of a comatose person whether or not they have changed their mind. I simply cannot know. All that I have to go on therefore is what they have already said, and I have to trust that when they made that initial decision, they made it reasonably and in good faith. If I cannot know then, well, full stop—I cannot know. I suppose that the question is whether the advance directive provisions in the Bill can trump other clauses.

I want to place on record my personal belief that this is a very remarkable Bill. It is noble and humane in its purpose and will ensure that the most vulnerable in our society, which can be and may be each one of us here today, are accorded the dignity and respect that is coterminous with being human. So I wish the Bill every success on its journey.

Photo of Lord Elton Lord Elton Conservative 5:15, 24 March 2005

My Lords, could the right reverend Prelate inform somebody who has come late to the proceedings but has watched from afar what the position is regarding the first leg of his argument, which related to the withholding of treatment? Does the supply of food and drink, solids and fluid, constitute treatment or not—because on that his argument depends?

Photo of The Bishop of St Albans The Bishop of St Albans Bishop

My Lords, I am not competent in any legal sense to answer that question. If I may say so with the greatest respect, it should be directed elsewhere.

Photo of Earl Howe Earl Howe Spokespersons In the Lords, Health, Spokesperson In the Lords (Also In the Health Team), Family

My Lords, this has the appearance of a very ingenious amendment, but I want to be sure that I fully understand it. I have always understood that the legal meaning of "purpose" encompasses both intention and foreseeable consequences. Therefore, if I am correct in paraphrasing it, the first part of the amendment says that you can take a decision to do anything as long as the person's death is not the foreseeable consequence of what you are doing. If that is right, it would seem at first sight to cut across the decision in Bland which expressly foresaw that death would result from the withdrawal of treatment. I should be glad if the noble Lord could clarify that point, because, although I listened very carefully to him, I have had difficulty with it.

My second difficulty is with the second half of the amendment. I am sure it is my fault but I just cannot get my head round it. It appears to be saying that where the decision-maker has a belief that what he is doing will bring about P's death, that is all right so long as—referring back to the first half of the amendment—the foreseeable consequence of what he is doing is not P's death. It is important that the noble Lord clarifies the distinction between foreseeable consequences and belief because I have not grasped it.

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, the noble Lord, Lord Alton, may find it easier if we all make our points and then he can address them.

I say to the noble Lord, Lord Elton, that we have had many discussions on the issue of giving food and drink and artificial nutrition and hydration. I can give him a pamphlet on that by an expert in palliative care. However, there is a distinction between basic care involving the giving of food and drink if someone is capable of a swallowing mechanism, and artificial nutrition and hydration which constitutes treatment as it bypasses the body's natural functions. The latter constitutes a medical intervention requiring blood tests and the observation of kidney functions. It can occasionally cause discomfort to the patient and is regarded as serious. Therefore, there is a real distinction there.

I know why the noble Lord, Lord Alton, tabled this amendment. He has sought to correct the difficulties of the previous "purpose" amendment that was tabled. But, in fact, this amendment is even more fundamentally flawed than the previous amendment. It is completely unworkable both in law and in clinical practice.

The noble Earl, Lord Howe, indicated that there are real difficulties with using the word "purpose" in this context. The noble Lord, Lord Lester, who is not present today, discussed this at a previous stage. I wish to be absolutely clear with noble Lords. English law is clear. We have taken advice from the widest range of lawyers on this point, including the Lord Chancellor and the senior judiciary, and they are all unanimous. The Law Lords have been explicit—"purpose" includes acting with the clear foresight that death will result. That is why the Government created new Clause 4(5) which focuses on—and bans—decision-makers being motivated by a desire to bring about the person's death.

But the legal adviser Professor Finnis, who is advising the Catholic Archbishop of Cardiff, Peter Smith, and the noble Lord, Lord Alton, continues his use of the word "purpose" in his amendments. This means that the amendment must be read as prohibiting any decision made where there is a foresight that death will result. As we know, in a palliative care setting when patients are dying, this would mean that every decision taken by a doctor is prohibited.

I know noble Lords will say that proposed subsection (3) is intended to remedy this, but I am afraid that it simply does not work. Proposed subsection (3) is trying to say that where a decision-maker does not want to bring about the person's death then this decision is permitted even if there is a belief that it will bring about the person's death. It is trying to get around the legal meaning of the word "purpose". But proposed subsection (3) does not achieve that. The only way to do that is to abandon the word "purpose" altogether, which is precisely what we have done in Clause 4(5).

It is absolutely senseless to ban a "purpose", and then try to create an exception by saying that the ban does not apply if you do not have that purpose. Of course it does not. But that is what proposed subsection (3) tries to do. It states:

"Where a decision is made for a purpose or purposes not including the purpose mentioned in subsection (2), it is not within that subsection".

Even if this subsection made sense and was clear, it cannot possibly undo the fact that under English law "purpose" includes the foresight that death will result. It follows that subsection (3) is completely ineffective and does not act as an exception to subsection (2) at all. As such, the amendment is flawed in all the ways that we discussed on Report. That is, it would force doctors to provide treatment to dying patients even where that was not in the patient's best interests. People would have to die in hospital, not at home in comfort with their loved ones.

It would overturn the Bland judgment, even though the Archbishop of Cardiff has said that he is content to leave the Bland decision unaffected by the Bill. Because the Bill will supersede the common law, it will occupy the field of the common law and all those decisions will be dealt with under the Bill. The noble Lord cannot argue that the Bland decision is somehow outside the Bill. It would overturn the principle of double effect and leave patients without the pain relief that they need at the end of their life. It would disallow people from refusing treatment in advance where they could foresee that death might result. No Jehovah's Witness or any other person of religious conviction would be able to exercise their right—in the case of Jehovah's Witnesses to refuse blood and in the case of other religious groups to refuse other forms of treatment—according to their religion.

I have a couple of other points to make to the noble Lord, because we keep coming back to the question of suicidally-motivated advance decisions. I say again for the record that in the Bill we have made the position better and stronger. First, for an advance decision to be valid, it must pass the formality test. We have made it absolutely clear that it must be in writing. Doctors will no longer have to worry about whether a suicide note containing a refusal of a particular treatment is a legally binding advance decision. It will not count unless the formality tests of being witnessed, in writing, and signed, have been met. Secondly, we have made it clear that the doctor can say, "Even though I have got that, I am not satisfied". It is a subjective test, and it is much easier than the objective tests that we talked about earlier in our proceedings. "I am not satisfied that this document is a proper, valid and applicable decision, and I want to proceed with treatment". The doctor can do that.

Thirdly, even if the formality tests are met and even if the doctor is nervous about saying that they are not satisfied, we have said in the Bill that they can treat while referring the matter to the Court of Protection. The Bill creates a new let-out. It says that nothing in an apparent advance decision stops a person providing life-sustaining treatment or preventing serious deterioration while a decision is sought from the court. The Bill does the reverse of what the noble Lord, Lord Alton, claims. It will make it much harder for any suicidally-motivated advance decision to bind a doctor. Any attempt made to request assisted suicide through an advance decision must be regarded because assisting suicide is illegal and remains illegal under the Bill.

I have said that at every stage of the Bill. I have said it to any noble Lord who has come past my office. I have said it to the noble Lord, Lord Alton, and to Archbishop Peter Smith, and to Professor Finnis. That is the position of the Bill. I hope that the noble Lord will withdraw his amendment and see the Bill on its way.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

My Lords, I am grateful to the Minister for returning to this question and answering the points that have been made. I particularly respect the positions that she has taken personally in the course of the Bill. Many of us were struck by the passion that she showed on Report, where she said that she would rather resign her ministerial office than introduce a Bill that allowed patient-assisted dying or euthanasia. I respect her enormously for that. I agree with the right reverend Prelate about the importance of honour in these proceedings. I know that she knows that I would not have persisted with this unless I truly believed that there is a defect in the Bill that needs to be remedied.

We disagree about the substance of the issue, and I do not think that we will resolve that question here today. I remind the noble Baroness that when in 1990 I relied on the advice of Professor Finnis against the advice of government lawyers, he proved to be right in the case of the abortion of babies with disabilities up to, and even during, birth on grounds such as cleft palate. I referred to that in a letter that I sent to the Daily Telegraph and which was published on Friday last. Therefore, just to dismiss the views of Professor Finnis and the advice that he has given on issues such as whether the Bland judgment is affected by the amendment would be foolhardy. Professor Finnis is clear that it does fall outside the scope of the amendment, as am I. Indeed, in PVS cases of this kind it would still be the right of hospital trusts to go to the courts in order to determine those matters.

I made it clear to the noble Baroness right at the outset—and to her predecessor, the noble Lord, Lord Filkin, who is on the Government Front Bench today and who also showed great courtesy in the way in which such sensitive questions were dealt with—that, although I personally disagreed with the Bland decision, we would do nothing in the context of the Bill to try to overturn it, as that was not appropriate. We have honoured that agreement, and I do not believe that the amendment falls foul of that.

The noble Earl, Lord Howe, asked me specifically about purpose and foresight. I mentioned R v Woollin, to which I draw his attention. In that case, a baby was dropped on its head by the defendant, and then it died. The court held that a near-certain foresight that death might result was sufficient to allow a jury to convict of murder. But a doctor might have near-certain foresight that death might be hastened by a pain-relieving drug. That also touches on the point of double effect to which the noble Baroness referred. It has always been legal and is an application of the principle of double effect. Plainly, Woollin undermines that. The amendment prevents the purpose to bring about death, but allows double effect to operate where death is foreseen but not intended or purposed.

I think, as the noble Earl said, the amendment is an ingenious attempt to try to address the issue. Fortunately, as we are in the long grass of Maundy Thursday and as so many noble Lords have had to leave our proceedings, it would not be prudent to try to divide the House on the matter today. However, as the noble Baroness knows—it was referred to earlier—we have now incorporated 94 or so amendments in the course of our deliberations. When they go to another place, I hope that even at this late stage it might be possible to attach to one of those amendments something to remedy the issue of suicidally motivated advance directives.

Why? Because, as the right reverend Prelate the Bishop of St Albans said, there is an enormous amount that is humane, compassionate and good in the Bill. I for one would be sorry were it jeopardised by our continuing inability to get the loophole put right. The right reverend Prelate is correct to talk about the importance of good intentions, but good law is probably more important. With those words, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs) 5:30, 24 March 2005

My Lords, I beg to move that this Bill do now pass.

Moved, That the Bill do now pass.—(Baroness Ashton of Upholland.)

On Question, Bill passed, and returned to the Commons with amendments.