I beg to move amendment No. 13, in

clause 4, page 2, leave out line 36.

With this it will be convenient to discuss the following amendments: No. 138, in

clause 4, page 2, line 36, at end insert—

'(1A) Where the determination concerns or affects the person's personal welfare, he must consider the person's life and health as basic to that welfare.'.

No. 110, in

clause 4, page 3, line 5, at end insert—

'(aa) the person's life and health in so far as they could properly be the object of health care.'.

I wish to preface my remarks by saying that a slight difficulty has arisen—I blame no one in the Room; such glitches happen from time to time—whereby I find myself bereft of the advice and counsel of my hon. Friend the Member for Beaconsfield (Mr. Grieve), who would be leading with me for the Opposition, but who has, unfortunately, found himself off the Committee. I am sure that, if time permitted, we could have a Bateman cartoon about the hon. Member who was left off the Standing Committee, especially when he wanted to serve on it. He is as concerned about the matter as I am, but at present I am especially worried about it not least because I have a brief duty to carry out elsewhere and will need to discharge that duty at some stage. Although I do not feel fully equipped with regard to certain matters, and bearing in mind your own profession, Mr. Hurst, I do not believe that one will ever find oneself in the position of a learned counsel who was given an instruction by a solicitor that just said that counsel should do the best that he can.

Briefly, this clause will exercise many minds, as there are some very real issues in it. My amendment is very minimalist, as it would simply delete line 36, creating a situation in which an individual determining best interests would have to consider all circumstances. That would remove the subjective filter—those circumstances that appear to him to be relevant. There is a point to that. Those who have put the amendments together in one group have a genuine concern that people do not edit out history as it suits them.

Remembering the earlier exchanges we had in which the hon. Member for Sutton and Cheam participated, we also do not want resources or other considerations, even if not stated, somehow to get in the way, nor an assessment or care package that does not take into account all circumstances. We do not want a partial situation. If we are talking about best interests, we want a proper assessment of what people's best interests are. We do not want people writing history and justifying it after the event by saying, ''Well, I just didn't think that was relevant, your honour. I left that out. It didn't enter my mind; it should've done.''

I shall make two points. I hope that they will be helpful to the Minister, as they are intended to be. First, the list that he gives, subject to the point about advocacy, which other members of the Committee will seek to develop, is pretty comprehensive. Our fertile minds could not make a huge addition of other persons or circumstances to that list. I have some sympathy with the specific issue about life and health, which has been drafted and signed up to by a large number of members of the Committee. It was right to discuss it in Committee and we will discuss it at a later stage, too. It is a real issue.

I draw a slightly gauche analogy with the discussion about fox hunting and whether something is related to the welfare of the fox. Some do not feel that the fox's being put to death serves its welfare. I do not wish to extend that issue, but there are real concerns—the Minister knows them and can speak to them at length—about whether this Bill would facilitate either euthanasia or some other course of action that we felt was distressing or improper. I do not believe that it does so, but he must consider the issue. The checklist that he has provided is pretty comprehensive, subject to a reservation that others will express about advocacy.

My second point, which is also designed to be helpful to the Minister, is that I am happy with the best interest test. It may need some interpretation, which he must provide when responding to this group of amendments, and I also see some difficulty in introducing benefit. Putting myself hypothetically in the position of a judge, instead of having to administer one test, I must administer two, including one that has not come down the common-law route, and I must consider in what circumstances something can be beneficial but not in somebody's best interests or the converse. That would introduce an unnecessary complication. We must include best interests, but behind these specific amendments—and, indeed, my rather more radical amendment to introduce a subjective test—is the need to make sure that people cannot load the course according to their circumstances, either because they have a particular agenda and are putting it and themselves forward on behalf of the person, instead of taking a proper decision as that person's proxy, or because there is some hidden agenda in relation to resources, for example.

Those are real concerns, and the Minister knows that; I hope that he will address them. To summarise, we want an objective test of best interests. If one looks at later clauses, one sees that there is some degree of filter, including, ultimately, the Court of Protection. People cannot substitute their own interests for the best interests of the individual. That is the fear that a number of people may have. There are real issues about how those best interests can be represented, in relation both to difficult issues about life and death, health and health care—that is one set of amendments—and to persons who may stand up for the individual when they may not be able to stand up for themselves and need help to ensure that their best interests are represented. I hope that the Minister can help us on that. I think that we need to refer back to the principles in clause 1 from time to time.

Such an approach, based on best interests, but with clean hands and without any fettering of judgment or distortions caused by other people's interests, is the right way to proceed. It is consistent with the principles of clause 1, and it is what we are all trying to achieve. We are not anxious to condone any derogation from that or any slipping from that good principle. I hope that the Minister will be able to reassure us in due course.

As I said, I give my apologies to the Minister for now, but I shall do my level best to return speedily for his response. I shall look forward to reading the record of the bits of the debate—on what everyone would agree is a central issue to the Bill—that I shall not hear.

I have not yet had the opportunity to welcome you to the Chair, Mr. Hurst. I look forward to serving under your chairmanship. It is a pleasure to follow my hon. Friend the Member for Daventry, who must be one of the most articulate men in the House of Commons. I am afraid that the Committee will find me most inarticulate in comparison, but I shall do my best.

I have tabled amendment No. 138 with the hon. Member for Crosby, and I am a co-signatory to amendment No. 110, which is in the name of the hon. Member for Sutton and Cheam, who sits on the Liberal Democrat Front Bench.

Best interests are at the heart of the Bill, and clause 4 describes them at length, but omits to refer to what must be considered the most important of all—the life and health of the person whose best interests are being considered and decided on by a proxy decision maker. All the considerations listed in clause 4 are subjective and indicate a patient's preferences of one kind of another—their past and present wishes, beliefs and values and so on. Those preferences are sometimes previously expressed, although not necessarily in relation to the circumstances in which a patient finds himself. Any judgments made on such peripheral issues are subjective, although very important. However, a proxy can make only a peripheral judgment, and such judgments do not have to relate to the life and health of the patient, which surely must be central to that person's welfare.

I see nothing in the Bill to prevent the proxy from concluding that the best interests of the patient would be not to receive treatment, perhaps even to die. How many times do we hear the phrase ''because that is what they would have wanted'' used about elderly people or those with severe disabilities?

We often express views about how we would wish to be treated in certain circumstances. However, when those circumstances arrive, we behave like many others: we change our minds. Doctors report that that happens often; when they have people in hospital and explain the alternatives, life suddenly becomes very precious. People change their minds and reverse decisions that they have expressed to close relatives. Nobody wants to be a burden, especially if they are old or severely disabled. That is why I support amendment No. 135, tabled by my hon. Friend the Member for Tiverton and Honiton and the hon. Members for Sutton and Cheam and for Chesterfield (Paul Holmes).

More dangerous still is the decision taken by a proxy not to proceed when treatment is available and would be beneficial. I return to my theme that patients' life and health is central and vital for their best interests. Many will argue that doctors will continue not to be affected in their professional attitudes to the approach in the Bill, which is subjective rather than objective. That argument brings no comfort because we know from experience that medical ethics changed dramatically following the Abortion Act 1967. What was intended at the time was that abortions would be able to take place for specific reasons. What has developed during the intervening years—this is incontrovertible—has been that, essentially, we now have abortion on demand, not just for adult women but also for under-age girls. That was not foreseen when the Act was passed, way back in the late 1960s.

In the same way, medical ethics and attitudes could easily change in future, with a growing number of elderly people living longer, costing the state so much more in provision of care, and with fewer people in the workplace contributing financially through taxation. I shall gloss over the problem of what will happen to pensions; that is a big and thorny issue at the moment. We know that we have a growing elderly population and ever fewer young people entering the work force to support them. That upside down pyramid causes great concern about the future.

The consideration of a patient's health and life is central to the legislation. Such a vital element should be written into the Bill and not just left to a code of practice. If a patient's medical or clinical best interests are not considered objectively, the patient might die unnecessarily or be harmed mentally or physically. Those who suffer dementia are especially vulnerable. A period spent observing patients in a geriatric ward while visiting my late mother in hospital some five years ago opened my eyes to the reality of the situation, rather than the theory about which we hear so much.

The medical profession is still bound by the Hippocratic tradition of at least doing no harm; I believe that the oath is no longer sworn.

Would doctors have the time or the inclination to challenge a proxy's decision to withdraw treatment if they believed that it had been arrived at by an improper determination of the patient's best interests? Does the new offence of ill-treatment or neglect by a proxy adequately cover that possible situation? Once again, theory will not win the day but will be overtaken by practical difficulties. That is why it is essential that the life and the health of the patient be placed in pole position. They should be the prime considerations, before all others, of the proxy genuinely acting in the patient's best interests.

I rise to discuss the amendment that is in my name. Hon. Members must forgive me, but I will read some of my contribution. I prefer not to do that, but I do not want to miss any vital points and I feel that I might if I speak on the hoof.

Order. The hon. Lady would be advised to summarise the material as soon as possible, because reading is not preferred in Committees.

I will try my best.

With respect to clause 4, as we know, all acts done and decisions made under the Bill

''for or on behalf of a person who lacks capacity must be done, or made, in his best interests.''

That is provided for in clause 1(5).

The Bill's explanation of best interests in clause 4 makes no reference to the fact that persons, even when unconscious of, or mistaken about, their interest have an objective interest in their own life, health and well-being. Instead, clause 4(1) states:

''In determining . . . what is in a person's best interests, the person making the determination must consider all the circumstances appearing to him to be relevant.''

That supports the comments made by my colleague who spoke just before me.

Under subsections (2) to (6), the clause says that particular consideration must be given to a range of factors, all of which must relate to predicted capacity or incapacity, participation in decision making,

''past and present wishes and feelings''

''the beliefs and values that would be likely to influence his decision if he had capacity''.

I think that generally there is support for that description of subjective considerations, as people know that it will help those who are making decisions on behalf of others to clarify their views in such a way that they advance positive arguments on behalf of the individual concerned.

However, other factors need to be considered, if we have the ability to do so, as do views of interested persons on what would be in the person's best interests. In particular, other subjective matters are mentioned. Matters that have been suggested for consideration by the parties on advance directives are

subjective, and I believe that we need to include objective measures as well, particularly those that relate to a person's life, health and well-being.

I refer hon. Members to clause 4(1), and in particular to the word ''circumstances'', which implies something without the body—something related to what goes around the body. I believe that the objective evaluation on the life and health of the individual is core to the body. It is an absolute core matter. It is not something that somebody else brings or has a view about; it is essential to the individual.

In the absence of these definitions, what is to prevent or discourage those making such determinations from determining that it is in the patient's best interests not to receive treatment because it is in their interests to die, because that is what they would have wanted, even when a reasonable medical judgment would be that treatment would not be futile or unduly burdensome, but beneficial? That is a point that was also raised by my colleague.

I know that the Government say that the medical profession should continue to use the traditional concept of best interests, which includes the patient's interests in life and health as central elements of his or her real welfare. I, for one, am very pleased about that. However, is it reasonable to suppose that professional attitudes will not be affected by the subjective character of the Bill's approach to best interests? That point, too, was adequately amplified and developed by my colleague.

The Government say that it is not possible to introduce the concept of medical best interests into clause 4, because the Bill does not only apply to medical situations. Can this sensibly be thought an adequate reason? In the absence of the amendment, there is a severe risk that the objective interest of a vulnerable patient may be submerged by the wishes, which are now given statutory force, of persons who may have a conflict of interest with the patient, or by wishes, feelings and concerns of the patient that may now require statutory force, despite having been unduly narrowed or deflected by inclinations of external pressure towards self-destruction, or simply a lack of self-respect.

How can it be right to leave such important elements of the Bill's central concept to be dealt with in a code of practice? We have accepted that it is right to include subjective considerations, and it is fundamental that we also include these two primary objective considerations.

All decisions made in respect of the personal welfare of a mentally incapacitated patient must be in his or her best interests. ''Best interests'' is a pivotal principle in the Bill, therefore it is fundamental that we get its definition right. At present, the Bill's definition is dangerously subjective—it simply refers to an

incapacitated patient's wishes, or what somebody else imagines will be his or her wishes. In clause 4 we are informed that

''the person making the determination'' about a person's best interests

''must consider all the circumstances appearing to him to be relevant.''

That is surely a subjective test, rather than an objective one. I seek earnestly to include objective measures in the Bill. My conclusion is reinforced by clause 4(8), which provides that in the case of a person other than the court, there is a sufficient compliance with the clause if

''he reasonably believes that what he does or decides is in the best interests of the person concerned.''

Consider the following scenario, which I hope will exemplify what I am trying to explain. An individual who has been in a serious accident, leaving him mentally incapacitated, has been admitted to accident and emergency and is being fed through a tube. The doctors are optimistic about his prospects for recovery, but he has appointed an attorney with the authority to make decisions on life-sustaining treatment who directs the medical professionals to withdraw the feeding tube on the basis that that is in the patient's best interests as described through the subjective tests offered in clause 4.

I agree with what the hon. Lady says, but I am a bit concerned that there would be an intervention at the A and E stage of somebody's admittance to hospital. I do not know whether she has examples of that, but having worked in a hospital I understand that such decisions come much later—usually when somebody has been in an intensive care unit for some time.

I accept that, because we have heard some reflections today from the Minister on the amount of time that would have to pass between an individual presenting with a lack of capacity to determine their own care and the decision being made by other parties about when that directive or command should be implemented. I am grateful for those reassurances, but perhaps the Minister can explain, once again, and say that decisions—and advance directives—are not instantaneous magic vehicles that will be implemented immediately, but will be given substantial consideration by a number of parties to avoid mistakes.

I asked the hon. Lady about that because anybody entrusted with the power to act in the best interests of Mr. P who sought to exercise such a power at A and E stage would be grossly misusing the power given in the Bill.

Yes, I would hope that that were so. To make it easier, let us imagine that an individual who had been brought into accident and emergency had been moved on. That frequently happens when the prognosis of the condition of the individual is self-evident after some obvious checks

and the person is moved into a ward. At that point, the person could be joined by members of his family and his advocate, who is in dialogue with the doctor.

The individual directs the medical profession to withdraw the feeding tube on the basis that it is in the patient's best interests. On a practical note, feeding tubes are not immediately administered but would have to wait to be inserted until the person's condition had stabilised. I must assume therefore that the individual had moved out of accident and emergency. What will prevent or discourage the attorney from determining that it is in the patient's best interest not to receive treatment as it is in that person's interest to die, because that is what he would have wanted, even when a reasonable medical judgment would be that the treatment would be neither futile nor unduly burdensome, but beneficial?

Individuals, carers, members of the family and the advocates would benefit enormously from having an objective valuation from the doctor of the impact on the health and life of the individual of any proposed treatment. That would be an important contribution to the overall debate. Those judgments should be lined up with subjective judgments for an holistic decision to be made. Let us suppose that a doctor can make a significant contribution that is based on the Hippocratic oath and his requirements to do what is best for the individual, coupled with the desires expressed by the individual or a third party on his behalf.

My hon. Friend knows that I had an interest to declare on Second Reading. She paints the scenario as though the doctor would not have a say in the situation when someone was in A and E or had been moved on to a ward and that they would have to do what they were told. Of course, doctors would not do what they were told under the circumstances she has outlined; they would make a decision in the interests of the patient even if it had to be decided in a court of law. On occasions, such decisions have had to be taken.

I understand that.

The hon. Lady's argument has validity, but will she translate what she is saying into slightly different circumstances in which someone is old and confused? I have seen things on geriatric wards that I would not wish to see repeated elsewhere. I have had experience of my own mother's dementia. Let us consider circumstances in which the patient is old and has no relatives to care about him. My mother was fed because her daughters went to the hospital and physically fed her. That reinforces the case that the life and health of the patient must be the central pillar from which all other judgments are made, including those made by the medical profession.

I thank the hon. Lady for her contribution, which adequately clarifies my argument. I wish also to take the opportunity to reply to my right hon. Friend the Member for Rother Valley

(Mr. Barron). No one is saying that the doctor will not consider the patient's health and life, but the Bill does not refer to that as being an essential element to be considered when an advance directive is presented. The Bill contains a list of subjective evaluations made by a third party. If doctors are to make those considerations, let us give them credence and ensure that their input is also given equal merit. First among equal merits are the matters that must be considered by all the parties concerned. That objectivity is missing from clause 4. It is essential because it will inform and produce better judgments. Ultimately, it will reduce the amount of litigation associated with contentious decisions. It is therefore vital that an element of objectivity be introduced into the definition of best interests by making it clear in the Bill that the consideration of best interests must take into account the patient's medical or clinical best interests.

The Government may object to my proposal. Indeed, my hon. Friend the Minister has already expressed concerns about referring to medical or clinical best interests in respect of personal welfare issues, on the basis that we would need also to incorporate references to financial best interests where financial decisions are made on behalf of mentally incapacitated individuals. However, I argue that that objection overlooks the reason why consideration of a patient's medical or clinical best interests is so important. If those interests are not properly considered, a patient might die or, at the very least, be mentally or physically harmed. If an individual's financial best interests are not properly considered, financial loss may result, but the individual is unlikely to suffer mental or physical harm as a result. Anyway, the need to consider financial best interests is implicit in clause 4. The risk of harm is far greater when proper consideration is not given to a patient's objective interests in life and health, hence the need for the amendment.

I have listened carefully to my hon. Friend and to the hon. Member for Congleton (Ann Winterton), and I think that they have missed the point—no doubt the Minister will respond more fully on this—that what they argue for is implicit in clause 4. I cannot see how we disentangle the health and life—

Order. There seems to be a difficulty with the amplication of the sound from the hon. Gentleman's corner of the Room. I ask hon. Members in that section of the Room to speak more loudly so that we can hear them clearly.

Thank you, Mr. Hurst. I have never been accused of being quiet before, but I will try to comply with your request. I shall start again in case I was not heard or understood.

My hon. Friend the Member for Crosby and the hon. Member for Congleton have been making their case as though the health and life of a patient were in some way distinguishable from their best interests. However, my understanding of clause 4 is that it is not possible to disentangle those concepts. What is in

someone's best interests in relation to their health and life will vary from case to case, but in the end I do not see how anyone could sensibly disentangle them.

I reread the clause while I was listening to those speeches—I have the facility to listen and read at the same time—and it seems to be intelligently drafted without being too explicit. The clause must leave things open to interpretation but at the same time set out a series of steps that anyone making a judgment has to go through before they can satisfy themselves that they are taking the right course of action.

Like me, my hon. Friend the Member for Crosby has an engineering background, and I think that she is relying on the use of objectivity in a scientific sense that probably does not apply in the circumstance that we are discussing. Truth be told, there will be a mixture of objectivity and subjectivity in any judgment, and it is almost impossible, without being able to read the patient's mind, to know what is objective and what is subjective. That is why the concept of best interests is a safer way to deal with the issue than my hon. Friend's proposal. What she and the hon. Member for Congleton are trying to do is very worthy, but I am not sure that it would achieve their objective.

If I understand my hon. Friend correctly, he is arguing that we should not include objective measures in the clause, yet a number of subjective elements are detailed here. If he is arguing that objective elements are included in the principle of best interest and do not need to be specified, why do we need to specify subjective elements—could they also be subsumed into ''best interests''?

My hon. Friend either misheard what I said or is approaching things from a different direction, which means it becomes impossible for us to reach consensus. I am not sure which is the case. I said that unless people can be certain about exactly what is happening it is inevitable that any decision, including one made on a medical basis, will be a mixture of objective and subjective considerations. I am not capable, as I sit in Committee, of being certain in every circumstance about what is subjective or objective. My hon. Friend takes the view that these things ought to be clear, but in most circumstances they are not.

I rise to speak to amendment No. 110 and to contribute to the debate, although not at great length as other hon. Members have already outlined many issues to which I hope the Minister will respond.

I want briefly to quote from the Joint Committee report, which speaks to some of what we have been discussing:

''The Making Decisions Alliance, while supporting a best interests approach, was concerned that the principle of best interests had been developed primarily in case law concerned with the provision of medical treatment and the term was therefore too often linked to clinical and healthcare considerations which may not be relevant in relation to other types of decisions.''

Time and again, that was one of the areas to which the Joint Committee returned and asked questions to explore whether ''best interests'' was the right doctrine or basis on which we should found the Bill. Time and

again we received conflicting views about whether a long checklist could be dealt with. The Law Commission report acknowledged that

''no statutory guidance could offer an exhaustive account of what is in a person's best interests.''

I said on Second Reading that in framing this legislation we could not attempt to second-guess every possible scenario in describing what is meant by ''best interests''. Having said that, on listening to the exchanges on Second Reading, it struck me quite forcefully that the issue of life and health is central. The hon. Member for Crosby has outlined a point dealing with a proposition that the Catholic bishops advanced in their briefing, and I want to ask the Minister about that.

The drafting of clause 4 marks a shift in what case law says is a best interest; it moves away from an objective test towards a more subjective basis. That is what case law suggests and that is how the Bill has been interpreted by those who have given legal counsel to the Catholic Bishops' Conference. I would like to hear the Minister say whether parliamentary counsel is giving him that advice and whether that change is effectively occurring with the inclusion of a checklist of considerations in respect of best interests.

This is a fascinating debate, but is there a danger that the hon. Gentleman and other hon. Members are looking at clause 4 in isolation. The ''best interests'' clause has to be read alongside clause 1—with its statement of principles and its consequences—and the other safeguards that are included later in the Bill, when considering the implementation of advance directives and what issues need to be examined. In other words, the Bill needs to be considered in totality. I know that is difficult when discussing a small amendment, but we must take into account the different clauses.

That is a fair point. It is a commentary on the nature of the process that necessitates our examining the Bill line by line, clause by clause. The hon. Lady is absolutely right. When considering the issues in the round, the clear statement in black and white in the brief of the Catholic bishops heartened me. It says that, because of clause 58, the Bill cannot be correctly described as a measure that gives permission for euthanasia.

The bishops went on to register the concern that they still have and which my amendment is attempting, at least in part, to allow the Government to answer. It goes to the point made by the hon. Member for Knowsley, North and Sefton, East, which is that we cannot disentangle such issues and, if we try to do so, we will create an unsatisfactory list of considerations to which we will always want to add something more. That understandable criticism is often deployed when debating, but on this occasion it is understandable and fair. It leads to the question on which the Minister must give us a clear steer today: as part of best interest, should life and health be one of the considerations? Is it a best-interest factor?

Earlier, the Minister said that it would never be in a person's best interest to be discriminated against. Would it not be in a person's best interest to have an objective measure of his health and life? I am trying inarticulately to ask him that question and I hope that he can give us guidance on it today. That might go some way towards allaying my worries and possibly those of the supporters of the other amendments in the group.

I also want to speak to the amendment tabled by the hon. Member for Daventry because it might deal with, and provide a solution to, the argument advanced by the hon. Member for Knowsley, North and Sefton, East. If we were to delete from clause 4(1) the reference to

''appearing to him to be relevant'', that would tilt the balance and change the nature of the decision making by the person who is determining a person's best interest. That may well deal with my concern about health and life. I hope the Minister will comment on that in responding to the amendment tabled by the hon. Member for Daventry.

My final issue here is another matter that we considered in detail in the Joint Committee: whether the common law duty of care applies in respect of discharging a responsibility to determine a person's best interest. In the recommendations, we asked the Government for clarification on that and they have set out some matters in their response to the Joint Committee. It would be ever so helpful today if the Minister put on the record the precise position of the common law duty of care in respect of an individual discharging his responsibility to determine what is in a person's best interest. Subjectivity and whether the parameters of our law will be changed by the clause are important. That is at the heart of some worries that are still held by the Catholic bishops, and I hope the Minister will go some way towards dealing with those concerns today.

I have a lot of sympathy with the suggestion that the words in amendment No. 110 be added to the Bill, the reason for which is that we heard on Second Reading so many accounts from hon. Members of their concern about the treatment of people who are in hospital or nursing homes and who are reaching the end of their lives, but are not technically dying.

This week, I received, as I am sure other hon. Members did, the briefing for the Committee from the General Medical Council. I am concerned at what I can only describe as a somewhat dismissive approach to what is going on due to the fact that these various stories are anecdotal. There is sufficient evidence from in the House and around the country to show that we are not just talking about individual bad cases; we need to look into the subject of the care of the frail elderly in our hospitals.

The issue is not just about doctors. It is about the patient whose food is put on the trolley at the end of the bed, by a care assistant or somebody on the staff of the hospital, without there being anybody to check

whether they can reach the food or feed themselves. It is about the account that my hon. Friend the Member for Congleton gave of her sisters feeding her mother—an experience that we in my family have repeated five times with five separate elderly relatives. We had to have a rota for going into hospitals to ensure that, when the relatives reached the final weeks or days of their lives but were still able to take sustenance, there was someone there to ensure that they received it.

Due to such cases, there is deep disquiet about the care of the elderly—particularly those elderly people who appear to have no relatives whatever, whom we all see in hospital wards when we visit our elderly relatives. We go away in the evening, having fed our own relatives, and wonder what on earth happens to those people. Only last year, I learned of an elderly lady who slipped into a diabetic coma in a ward without any of the nursing staff noticing. She was rescued by a niece who visited twice a week, but who fortunately happened to come in on the day that her aunt slipped into a diabetic coma.

Those are not just individual stories of one or two bad accidents; this is now a fundamental issue of concern that needs to be addressed in our society. I notice that the GMC brief to the Committee on this clause on best interests says:

''It is well recognised by clinicians (though not so well understood by the public) that a natural part of the process of dying is where the body systems begin to shut down and an individual becomes disinterested in food and drink.''

Anybody who has nursed a dying person will become familiar with that scenario in the last day or two of someone's life, when they are frail and are moving on, but I believe that someone is still required to be there to moisten the outer part of the mouth and the lips, because it is incredibly uncomfortable to be without hydration, even if that hydration is no longer taken through the mouth because the swallowing mechanism has shut down. That is one of the very obvious signs that a dying person is getting very close to the end; of course, no one would wish to attempt to force either fluid or nutrition on someone who had reached that stage.

My concern is that I would not want us to put anything in the Bill that in any way made medical professionals at whatever level—whether nurses or doctors—feel that they had to intervene to prolong life when one could see quite clearly that it was beginning to slip away. It needs to slip away with as much comfort and dignity as possible. However, counter-balancing that is my chilling fear that that is not how a lot of elderly people in this country die.

My hon. Friend is making an eloquent speech. Does she agree that it would be the supreme irony of our deliberations if we gave attention to the communications needs of persons without mental capacity, about which we have talked at length, but neglected the basics—nursing, food and water—which they require whether they have a communication problem or not?

Indeed; my hon. Friend is right. That is why I have a lot of sympathy with the wording of the amendments, which try to ensure that the issue is established in the Bill. The Minister will be aware of Mr. Justice Munby's judgment in the Burke case, because that was discussed on Second Reading. On this clause, the GMC advises us:

''Mr. Justice Munby states that 'intolerability' should be the touchstone for 'best interests' in deciding whether to provide an incapacitated person with life-prolonging treatment. One of the principles on which the Bill is based is that decisions should be taken in the incapacitated person's best interests.''

The GMC goes on to say that clause 4(5) does

''not include the test of whether an option would be 'intolerable'.''

It assumes that

''the Bill would need to be amended to accommodate intolerability as the measure of best interests in the context of life-prolonging treatment.''

The GMC goes on to say that the

''grounds for appeal of the Munby judgment include the view that best interests should be determined on wider grounds than intolerability.''

I hope the Minister gives us some idea of how he sees that representation by the GMC.

On Second Reading, the Minister was asked more than once about the question of treatment and whether in law the term ''treatment'' would include nutrition and hydration. I want him to confirm specifically whether it is his understanding that those are included in the definition as it applies to this legislation. It was not clear on Second Reading whether that is his understanding of ''treatment''.

Does the hon. Lady agree that an objective measure would be valuable in two cases? First, it would be valuable when an individual is recommending the complete cessation of treatment on behalf of another and there is therefore an opportunity to produce an evaluation of what that means for the incapacitated person. Secondly, it would enable people who come with an advance directive that specifies a range of treatment that may not be in the best interests of the health or life of the individual. Hence, this objective measure would help individuals who were advocating either a cessation or the development of a treatment, both of which might have a significant impact on the life and health of the individual.

Yes. The hon. Lady is articulating what is at the heart of the amendments. We cannot afford to get this part of the Bill wrong; the consequences will be very serious if we do.

We are a small Committee, but I was impressed by how many people attended the debate on Second Reading and by how many Members sat through and listened to the whole debate, even if they did not speak themselves. Many made interventions, particularly on issues relating to this part of the Bill. I say to the Minister that we need to ensure that this issue is resolved. We cannot put it out there and make it subject to the courts' interpretation of what we meant. We have to get this right.

Debate adjourned.——[Ms Bridget Prentice.]

Adjourned accordingly at four minutes past Five o'clock till Thursday 21 October at half-past Nine o'clock.