Mental Capacity Bill

Public Bill Committee, 19 October 2004.

Standing Committee A

Mental Capacity Bill

Alan Hurst (Labour, Braintree)

I remind the Committee that there is a money resolution in connection with the Bill, copies of which are available in the Room. I also remind hon. Members that adequate notice should be given of amendments. As a general rule, my co-Chairman and I do not intend to call starred amendments, including any that may be reached during an afternoon sitting of the Committee.Clause 1 The Principles

Clause 1 - The Principles

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to move amendment No. 86, in

clause 1, page 1, line 6, leave out from 'capacity' to the end of line 7 and insert

'in relation to any matter, except where it is established in relation to a particular matter on a particular occasion that he lacks capacity'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss the following amendments:

No. 1, in

clause 1, page 1, line 6, after 'unless', insert 'and until'.

No. 2, in

clause 1, page 1, line 7, after 'capacity', insert

'relevant to the particular situation'.

No. 3, in

clause 1, page 1, line 7, at end insert—

'(2A) Even where a person may lack capacity, he is entitled to respect for any feelings he may have'.

No. 4, in

clause 1, page 1, line 11, at end insert

' or has made unwise decisions in similar past situations'.

No. 91, in

clause 1, page 1, line 13, after 'made', insert 'for his benefit and'.

No. 5, in

clause 1, page 1, line 13, after 'interests', insert

'or in accordance with his advance decision under section 24 of the Act'.

No. 6, in

clause 1, page 1, line 13, at end insert—

'(5A) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity, shall if valid be treated as of equal validity as if it had been made by the person himself'.

No. 7, in

clause 1, page 1, line 15, after 'effectively', insert 'or adequately'.

No. 8, in

clause 1, page 1, line 16, leave out 'rights and'.

No. 90, in

clause 1, page 1, line 16, at end add—

'(7) An act done, or decision made under this Act for, or on behalf of, a person who lacks capacity must not be done in a way that is less favourable than the way in which it would be done or made by a person if they had capacity in a comparable situation.'.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Thank you, Mr. Hurst. I welcome you to the Chair and look forward to serving under your chairmanship during the consideration of this most important Bill. As other hon. Members have noted, and as I said on Second Reading, the Bill has been 15 years in the making. It is the product of considerable consultation, Green Papers, White Papers and numerous other processes of consultation and dialogue. It arrives here in Committee with several issues that are still giving people outside the Room cause for concern, so the Committee provides an important opportunity to explore with the Government their willingness to take on board further worries by way of amendments, to consider our amendments and to table their own, and to discuss the approach that they intend to take to deal with some of the concerns that have been expressed.

One of the central concerns that the group of amendments addresses was raised in a joint statement about the Mental Capacity Bill by the I Decide coalition, copies of which have been provided to members of the Committee. The second paragraph of the statement sums up the worry that some people have about the Bill and states:

''We are worried that if the Mental Capacity Bill becomes law disabled people will be stopped from making the 'small' day to day choices like eating the food we like and dressing in clothes we feel good in, right to what happens to our bodies together with the enjoyment of going out to work and having fun, moving home and having friends and relationships and in short having a life!''

The coalition referred to having a life—a quality of life, an ability to make one's own decisions. The principles set out under clause 1 are all about saying that such people should have the same rights as everyone else, which is the purpose of amendments Nos. 86, 91 and 90. Amendment No. 86 attempts, by judicious rewording of the clause, to ensure that the principles of the clause benefit from the functional

approach. Capacity is the underlying basis on which the Bill is intended to operate and is both specific to the decision that is being made and specific to the time at which a decision is taken.

A person's capacity may vary; it may well vary as a result of the way in which capacity was lost—due to a head injury, for example. It may vary due to the nature of the medical condition. So it is important that we state specifically in the Bill that that is how the principles should be read and understood. That will guard against the people who take decisions assuming that a person is incapacitated because he cannot make decisions about a specific matter. In other words, the person may be unable to make a decision about complex medical treatment, but can certainly make decisions about the clothes and shoes he wants to wear, the type of recreation that he wants to take and the type of food that he wants to eat, which goes very much to the argument advanced by the I Decide coalition.

The second amendment tabled in my name and that of my hon. Friend the Member for Chesterfield (Paul Holmes) relates to what is contained in the equivalent Scottish legislation. When the Joint Committee considered the draft Bill just over a year ago, many of us on the Committee were struck by the representations that we received from organisations across the spectrum in support of including a clearly articulated set of principles at the beginning of the Bill. It is to the Government's credit that they took on board that concern and accepted the recommendation of the Joint Committee. Now there is such a set of principles in the Bill.

However, one of the words omitted from the English set of principles but included in the Scottish set is ''benefit'' in respect of acts done to or treatments received by a person. That word is not just a luxury add-on; it has an important meaning in terms of how one assesses best interest and decides the right way to proceed when considering whether a treatment will be beneficial to an individual. Will the Minister rehearse why it was felt inappropriate to include the word ''benefit'' in the English legislation but not in the Scottish legislation?

Angela Browning (Conservative, Tiverton and Honiton)

I concur with the hon. Gentleman about the word ''benefit''. Clearly, parts of the Bill will seek to prevent detriment. The assumption should not be made that anything in the middle is simply benign.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The hon. Lady makes an important point. That is why I hope that, through the amendment, we can explore with the Government how they came to the conclusion that the word should be left out of the English legislation. I hope that the Minister will respond to that point.

Amendment No. 90, the final amendment in the group, relates to a subject that I raised on Second Reading, and to a matter that was at the heart of quite a few of the concerns expressed on both sides of the Chamber on that occasion, namely, the idea that a principle of non-discrimination should be fundamental to the Bill. It may well be argued that

such a principle is implicit in the Bill so the amendment is unnecessary, but it should be made explicit that non-discrimination is a founding principle of the legislation.

I make no apologies for the fact that the drafting of this amendment—and my other amendments today—comes from the Making Decisions Alliance, which represents a wide range of organisations of and for disabled people, older people and others. It wanted to make sure that the wording on non-discrimination was an addition to the statement of principles in the Bill. The idea is about governing all the actions and decisions taken under the new legislation, and ensuring that the Bill is more value-based. The amendment attempts to reinforce the message that the aim of the Bill is to maximise capacity, to protect adults from abuse and to provide clarity to carers. The perception, as I said in my comments in respect of the I Decide coalition, is that it is not always that way.

We want a Bill that is seen as an important way of promoting people's basic rights and freedoms and a challenge to existing attitudes where necessary. I hope that the Government can respond positively to the amendment, as there is certain evidence, anecdotal and otherwise, that prejudices and attitudes about the quality of life of a person with serious learning disabilities, a head injury or another disease that leads to a loss of capacity can get in the way of dealing with that person and how they are, what they want, and what they need. I need only think of the evidence on the inappropriate use of ''do not resuscitate'' orders. The Government have addressed that issue in part by making sure that the guidance is renewed, updated and more closely adhered to in the NHS. I hope that we can include something in the Bill that says that those people should not be treated any less favourably than other members of society, not just in respect of ''do not resuscitate'' orders but right across the piece, in respect of medical treatment, social care provision and all aspects of a person's life. That, in a sense, is the purpose of this group of amendments.

I end with a couple of questions, which I hope will be in order. The draft code of practice is useful; it is a rarity for a code of practice to be published at this stage. Many who have seen it have commented that it is a work in progress and that there is a lot more to be done. Let us hope that our deliberations and those in the other place will help with that. However, I hope that the Minister will say a little bit today about the codes of practice and how the five—if my amendments are accepted, the six—guiding principles are to be disseminated, because communication of the principles and ensuring that they are understood and practised by individuals in their everyday lives and, more important, by professionals, is central to making this Bill one that changes lives for the better.

I hope that the Minister will respond to those concerns, give us some assurances and perhaps even accept some of the amendments.

Joan Humble (Labour, Blackpool North and Fleetwood)

It is a pleasure to follow the hon. Gentleman, because he is making some important points and is, above all, emphasising that the Bill will

empower many people in various different settings. The Bill is not just about patients in hospitals but about people in the community, which is a point that I wish to emphasise throughout our deliberations. He has rightly emphasised in his first amendment the functional nature of the Bill in determining whether an individual has the capacity for a particular decision, but I am not sure whether it is appropriate to amend the Bill and I look forward to hearing the comments of my hon. Friend the Minister.

There will be an issue around the codes of practice, because if we are to change attitudes, we have to be clear about the instructions and guidance that we are giving, especially to professionals in a social care setting. It is easy for people to assume that individuals with learning disabilities and variable mental health problems lack overall capacity, instead of finding out what their wishes are in a particular circumstance and talking to them. If one is a busy social care professional—a care worker in a home, or a domiciliary worker in somebody's own home—it is a lot easier just to get on with the job and not bother asking. They have limited time and go in and do things, instead of saying, ''Now, today should we talk about this, that and the other? What do you want to do today? What do you want me to do? What is your opinion on this? Should we go shopping? What sort of food do you want? We are going to make a decision about decorating your home.'' There might be a decision to be made about moving home. They should be saying to that individual, ''What is your opinion?'' They should determine whether he or she has the capacity to make such decisions.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am grateful to the hon. Lady for giving way. I want to pick up on that point, because although I agree that domiciliary care workers should be proactive and engaging, I am sure that she agrees that it is also essential that they have their ears wide open, react and are flexible and prepared to do things differently as a result of what is said to them.

Joan Humble (Labour, Blackpool North and Fleetwood)

That is exactly my point. In a way, this Bill will make life a little more difficult for those caring for people who have variable capacity or lack capacity, because it will challenge them by saying, ''You must make every effort to find out if the individual has the capacity to make this decision.'' That will also empower those being cared for; they will, for the first time, have safeguards in legislation so that they will be asked for their opinion, and then their capacity to make decisions will be assessed.

This is an important area, and I am sure that we will return to explore further what will be included in the code of practice and what training will be available to care workers looking after individuals. However, part of the process is getting the message across to families and informal carers. Right at the beginning of the Bill we have these key principles that will underpin everything that we do later.

Tim Boswell (Conservative, Daventry)

I begin by welcoming you to the Chair, Mr. Hurst. We have a certain interest in your part of the world, where I used to live, and I claim no credit for that, although it may be necessary to refer to it from time to time. That was by way of a preliminary, but we are delighted to see you in the Chair for what will be, I think, a demanding Bill for everyone.

The Committee has made a terrific start: I would not dissent materially in the least from the contributions of the two other parties, and I hope we will continue in such a way. We will have controversy about the detail and about how things are going to operate, as we should do, but we should not have a covert ideological argument about what the Bill seeks to do. All that is welcome.

The hon. Member for Sutton and Cheam (Mr. Burstow) had the honour of moving the lead amendment, and he put everything in the right context. He spoke of the need to reach the right balance, to respect the individual and to deliver effective care for them, respecting their feelings. I would not like to exclude the Minister, whom I welcome. Our previous dealings have been constructive, rather along the same lines. There may be occasions on which battle has to be joined, but not in this context.

The more that we discuss this issue and try to get the exactly right wording, the more the people whom we are concerned with and others in the caring professions will appreciate it, as will the professionals and legislators at the other end of the Corridor, who will eventually have the task of implementing the Bill. There is a real-world situation out there, about which both speakers have already spoken eloquently. The Committee needs to provide a sensible and sensitive regime for individuals and at the same time to recognise that that needs to be delivered through a framework of law supplemented by good practice and codes. That is not an easy objective, but it is one that we have to tease out.

The Minister knows that I have previous form as a serial amender. I cannot see draft legislation without seeking to tinker and mess about with it and ask impertinent and occasionally appropriate—possibly, occasionally inappropriate—questions about it. I apologise to him and the Committee in advance. I am no lawyer, and, as he knows, there is no greater fool than one who has himself for a lawyer.

I will be assisted by my hon. Friend the Member for Beaconsfield (Mr. Grieve), who is a distinguished lawyer and who, on his return, will no doubt bring the Committee back to the straight and narrow. Meanwhile, I have to suffice. I have tabled a large number of amendments. I am sure the Minister accepts that they are tendered in a spirit of inquiry rather than as an attempt to subvert the Bill.

It will be simplest if I use the order that I established and deal with amendment No. 1 first. In a real-world Bill that is important to people, it is appropriate to start with what seems a very lawyerly issue. This small amendment is wider than it might appear. Reference has already been made to the functionality test, which

is about whether a person has capacity. I jump ahead in saying that my amendment No. 2 is close to the thinking of the amendment tabled by the hon. Member for Sutton and Cheam. It is about where we start and the situation that we are in.

Amendment No. 1 is addressed to the situation of establishing that capacity has been lost. I seek to insert ''and until'' partly because it has a lawyerly ring about it; ''unless and until'' is not a phrase that often trips off the lips of the laity. However, I also seek to hammer home the point that somebody has capacity, or is assumed to have capacity, until an assessment has been made that they have not got capacity. I seek to add those two words to make the point that we start with the assumption that somebody is capable, although we may have to modify that in light of the circumstances or in relation to the particular decision being taken and take things from there.

Those are only two words, but they open a very wide perspective. I introduce that to the Committee early on because it needs to come in somewhere. Contributors to the debate have already made the point that this imposes duties as well as providing safeguards for carers and others who need to look after persons without capacity. One of the important activities implied in the principles stated here and the functionality test is that at any given time in any circumstance some kind of implied assessment of capacity has to take place. The Minister is a lawyer and he can probably help the Committee on this.

What I am feeling after is the concept that the decision maker—or the potential decision maker, in this situation—on behalf of somebody lacking capacity cannot close their mind to the fact that the person may have capacity or may have established capacity in relation to the particular act so that, for example, just because somebody did something silly in the past, or forgot something, or took a perverse decision, or appears to have a particular condition that is stable or may, sadly, be deteriorating, that does not by itself rule out the obligation on the carer or the person who is to take a decision on someone's behalf to establish the capacity as being lost.

Let us take that ad absurdum. I hasten to say that, even if the Minister thinks he will have 200 cases a year in the Court of Protection, I doubt, and very much hope not, that he will end up with 200,000. This means that if there is a population of between 1 million and 2 million persons who may lack capacity at any one time, and if decisions have to be taken for them that are multiples of that figure day by day—the ''Shall we go shopping?'' or ''Would you rather have Shredded Wheat or Weetabix for breakfast?'' questions as well as the more serious ones—there are, in theory, myriad decisions, all of which are about the existence or absence of capacity. There could be millions of decisions.

Quite apart from anything else, this is a serious legal issue in that one cannot run away from the obligation to establish a lack of capacity to the best of one's lights—I anticipate debates on the immediately

following clauses—by just assuming as a result of a one-off diagnosis that a person lacks capacity and is therefore ruled out of making the decision.

I am not seeking to create a lawyers' paradise in this matter, or to suggest that people will have recourse to litigation all the time, but I am making the point that at any one moment there is the possibility of a challenge about capacity. We will come back to that. The principle that somebody has capacity unless and until it is established that they lack it is very demanding, because it means that anybody who is associated with that person cannot close their mind to the possibility that they may at any stage recover, have an insight or be entirely the appropriate person to make that decision for themselves. Therefore, it is a very important principle.

Angela Browning (Conservative, Tiverton and Honiton)

I agree with my hon. Friend. I am thinking in particular of people who fall within the spectrum of communication disorders and who, when faced with a choice that is beyond their imaginative scope, may not immediately be able to express a preference, but who after a certain time—during which they are, perhaps, introduced to the practicalities of what those choices are, which could be very time consuming—may be able to make a preference. The word ''until'' would be very important for that group of people.

Tim Boswell (Conservative, Daventry)

I am delighted that my hon. Friend—with her expertise particularly but not exclusively in the autistic spectrum—is serving in Committee. She makes a valuable point. What this means in the real world is that somebody, be it a carer, as the hon. Member for Blackpool, North and Fleetwood (Mrs. Humble) suggested, or somebody else dealing with the person, who may or may not lack capacity, has to consider at any one time whether they have done enough to determine whether the decision we are referring to is one that such a person could take.

I am more or less following the argument that the hon. Lady deployed, but one cannot just assume that one turns up, does the chores and says, ''Now get on with it.'' At any one time, one may be out of order in doing that if the person has re-established capacity or could have done so. I flag that up to the Minister because it is an important understanding, which we must have.

I mentioned amendment No. 2 and do not need to return to that. Amendment No. 3 again relates to a wider issue, but it would embody a new principle in the statement of principles. I concur with the hon. Member for Sutton and Cheam that it is an excellent idea to have a statement of principles. What I am discussing appears as a wider statement already; it is not just a couple of little lawyerly words.

I was trying to establish the fact that people who lack capacity are people. I think that that is another way of approaching the issues that have already been addressed and it is very important. Some people who have taken an interest in learning disabilities may have heard me say in relation to the Government's valuing people strategy that, even if one may disagree about details of implementation, the title and the concept are

hugely important. This is about establishing respect for people and is one of the reasons why I included the word ''respect'' in the amendment, which I drafted.

We all understand that we are seeking to provide that dignity and to recognise that human worth, which has not always been acknowledged in practice. Therefore, this is about establishing whether there is a lack of capacity at any one time. That is about taking a responsible approach to decision making, including the preliminaries to decision making, which are about whether capacity is present on the part of third parties.

The issue also involves respecting people who do not have mental capacity but still have feelings. Those may be physical feelings such as pain or emotions such as anxiety. I suspect—the hon. Member for Crosby (Mrs. Curtis-Thomas) was most eloquent on Second Reading about this—that they may reflect the fact that even if things are not easy for a person who is in a very distressing situation and has a serious stroke or trauma to respond to, such a person may have underlying concerns that are difficult to articulate but are not in any sense absent from their human condition. It is terribly important that we respond to those sensitively; I see no one in Committee who would not want to do that.

I had spells of insomnia last night, which shows that one should not get too close to the Bill. In the middle of one such spell I thought of ''The Merchant of Venice'', when Shylock says:

''If you prick us, do we not bleed?''

That is, perhaps, the most important general theme that we can achieve in our Committee. We must respect people, which is what amendment No. 3 seeks to do.

Amendment No. 4, which returns us to the day to day, is simply designed to record the fact that there is no read-across from past failures—whether there was capacity at the time or not—to the current decision. In a sense, it would put a gloss on what we already have. However, much of what I said about respect in relation to amendment No. 3 is taken up and would be better discussed again in relation to clause 4 (4), which members of the Committee who have read on in the Bill and are acute will notice that I seek to delete. The reason for that is to have a debate on what would happen and what it is to encourage a person to participate in a decision, whether they have capacity or not. Those are real issues.

Amendment No. 5 is my first shot at exposing the tension that I think many of us on the Committee feel, or need to acknowledge, between an advance decision, which may have been taken by an individual—not necessarily on a matter of life and death—and the best interests of that individual. We are dealing with principles, so perhaps it is more sensible to discuss that when we get to clause 25. Arguably, from my reading of clause 25(4), no advance decision could reliably stand up anyway if anyone could mount a plausible discussion about circumstances having changed. It is not an absolute in the way that a decision in best

interests may or may not be. We need to record in relation to subsection (5) the fact that there may be a tension between best interests at the time and an advance decision that has been announced or indicated.

Amendment No. 6 looks like a principle, and in a sense it is. In a strange way, it is a mirror image of amendment No. 90 on not discriminating against people, which was tabled by the hon. Member for Sutton and Cheam and with which I have no difficulty. However, my amendment says that the acts themselves are equally valid. That must be implicit, but I do not know whether it needs stating as a matter of law. If I take a valid decision on behalf of a person when I have established that they lack capacity, my decision, if it is valid and applicable—to use the phrase that occurs later on—is just as good as if they had made it themselves. I do not know whether there are any cases where that might cause difficulty in law, but it seems important to establish it as a principle.

Amendment No. 7 relates to the restriction on people's rights and freedom of action. The phrase used in the sixth principle in clause 1 is

''whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive''.

I have suggested adding the words ''or adequately'', because it would then mean that it was adequate to the purpose of the particular decision. Given how the principle is drafted, it seems as though efficacy is the main objective of the decision, which therefore trumps any suggestion that the person is taking their own decision on their own behalf.

I feel very strongly about this kind of thing. If a decision is adequate, rather than particularly efficient, we should even be allowed some discount on the result so as to represent the decision of the person involved. If we believe in non-restriction, unless it is clearly out of court because it would damage that person, we should be allowing a degree of flexibility in decision making without seeking to limit it by some test of efficiency.

Amendment No. 8 is probing on the second part of principle six, which talks about

''a way that is less restrictive of the person's rights and freedom of action.''

I am not clear on how a right is restricted, or what a right is. Is that a human right or not? Would it not be simpler to have one test? I have reservations about some things that the hon. Member for Sutton and Cheam wants to do about benefits, but we will return to that in a moment. If, heaven forefend, this proposal were ever to get into law, there will be cases where we need legal tests that are as simple as possible. There is a case for the legal test being, ''Does it restrict freedom of action, not rights and freedom of action?'' It might help the Committee if the Minister said what rights, other than freedom of action, might be curtailed.

I have spoken to my amendments, alluding to the contributions of the hon. Gentleman and the hon. Member for Blackpool, North and Fleetwood. We are feeling for something very important. We want the

individual to be enabled; we want them to have as much scope as possible to make their own decisions, where that is possible. We do not want their ''freedom of action'' to be inhibited—to use a phrase that is already in the Bill.

We are also trying to ensure that even if capacity is lost—that needs the careful assessment to which I have already referred—the person without capacity still has rights as a human being. They must still have the right to be treated with dignity and respect and the right to have their feelings considered at all times.

I cannot believe, and I am not seeking to suggest, that those principles are in any way contentious in this Committee. We want to get the most watertight and sensitive statement that we can, up-front in the Bill, so that that can inform everything else we do in the Bill and the codes. Those are not unreasonable requests to put to the Minister. I hope he responds adequately; in this case, I have fairly strong confidence that he will.

Tom Clarke (Labour, Coatbridge and Chryston)

I welcome you to the Chair, Mr. Hurst, and I will try to be brief. We have had an interesting and well-meaning debate, which I trust augurs well for the rest of our deliberations.

I was tempted to intervene by the introductory speech of the hon. Member for Sutton and Cheam. I welcome him saying—if I understood him correctly—that he was making his remarks largely based on the advice of the Making Decisions Alliance. I have a very high regard for it, and its contribution to our work on the Bill has largely been positive and commendable.

My reason for speaking is the reference to the Scottish Act; I thought that this was as good a time as any to talk about it. In the Scottish Parliament, consultations were undertaken and those responsible for the Act listened to what people had to say, including those representing Enable. I see it as the sister body of Mencap, which is part of the Making Decisions Alliance and has a big input to the all-party group on learning disabilities. I have previously declared an interest because I am co-chair of that group.

I want the Committee to take the following view on board. It is perfectly reasonable that we should compare our legislation with what has happened in a devolved Assembly or Parliament even though, by its very nature, devolution means that our legislation need not be exactly the same. If that principle is accepted—I have a feeling it is—I think we may end up with a very good Act that is all the better for our considerations, but which may not be precisely the same as the Scottish Act, although it will reflect some things that are in it.

Curiously enough, I thought that the hon. Gentleman made a valid point when he asked a pertinent question about the word ''benefit''. I hesitate at this early stage to use the word ''omission''. There may not have been a deliberate policy of omission on the Government's part and they may have decided that

the wording is what they want, but it interests me to pursue the hon. Gentleman's question. I wonder why my colleagues have not included the word ''benefit''. I am very willing to be persuaded for the reasons I have given, but it is relevant and right that the question should have been posed.

Claire Curtis-Thomas (Labour, Crosby)

I rise to express opinions on the definition of capacity and how we ensure that people have an opportunity to express their wishes.

The Bill deals with different groups of people, and it is easier to assess the capacity of some groups than others. Today, I have had a number of interviews with people who have made advance directives, all with motor neurone disease. They have capacity now, have made decisions on how they wish to be treated and are able to specify in significant detail under what circumstances they would wish treatment to be withdrawn or withheld. That is fine; they are a straightforward group to deal with. It is reassuring for their loved ones and carers to have an explicit understanding about what is going to happen. Similar groups of individuals—people with terminal cancer, for example—have considerable advance notice and a description of the physical conditions that they will go through.

Such people are relatively easy to accommodate and feel comfortable about our treatment of them. However, there is a group of people who become incapacitated suddenly. Any of us could walk out of here this morning, be run over by a car this afternoon and find ourselves incapacitated this evening. Such an individual would present us with a significant problem: they would not have put together a written advance directive, so we would not know whether they had spent time considering their position to the point of expressing it. They might have articulated what they wanted to do some time previously; therefore, there would be doubt about what that person wanted. Contesting individuals would come to the fore and lay claims in respect of what the individual might have wanted. This is a very difficult area.

What provision accommodates that type of person and situation such that the individual players—for example, the doctors, who have a Hippocratic duty—will be left feeling comfortable that their primary role in life has not been subverted by subjective arguments brought by others for the best of reasons? Also, how will individuals who feel passionately about a person feel that their will has not been subverted by a doctor with a different view about the worthiness or viability of the life concerned?

The next category of people who are incredibly difficult to look after are those with learning difficulties—people have variable capacities. I know something about people with learning difficulties, and, in many instances, their difficulty is specific. An impaired judgment and ability in one area may not necessarily mean an impaired ability in another.

Tim Boswell (Conservative, Daventry)

As ever, the hon. Lady is making a constructive speech. Does she agree that not only particular difficulties, but access to equipment or techniques that enable people to overcome such social or other decision-making difficulties, are important?

Claire Curtis-Thomas (Labour, Crosby)

Yes, I agree. We must consider the issue of various abilities across different areas and activities of a person's life as well as the mechanisms that we employ to allow people to overcome those difficulties.

People with learning and communication difficulties present us with a real problem. I find it difficult to imagine how we, collectively as a society, should talk to 2 million people in this country about end-of-life decisions so as to ensure that they are left with some view of their desires. Carers will be drawn into that incredibly difficult discussion. I want to hear how our deliberations proceed and whether we are capable of coming up with a set of processes that allow us to deal with that adequately, so that we feel that the aspirations of the individual concerned have been heard and not subverted by the carers or by other individuals incidental to their life.

Finally, I want to talk about people who have intellectual capacity, but no real way of expressing it—people with locked-in syndrome and those who are presumed to be in a permanently vegetative state. I do not know about the experiences involving young children, but when the elderly are brought into hospital and have obviously had a stroke—such cases normally involve a stroke—or another condition that has induced a comatose or a semi-comatose state, presumptions are made at that time about the individual's capacity. I was certainly told that my mother was in a permanently vegetative state, because her physical manifestation and her semi-comatose state indicated that she had lost all capacity and there was no response whatever. In fact, it transpired that she was not in a permanently vegetative state, and I am deeply concerned that assumptions are made about individuals without any tests being carried out on them.

Ann Winterton (Conservative, Congleton)

I have listened most carefully to the hon. Lady's comments. Bearing in mind the assumption that is frequently made about people who are in a persistent vegetative state, does she agree that many doctors have admitted that it is an extremely difficult condition to diagnose? That makes it more likely that those assumptions will be widely made.

Claire Curtis-Thomas (Labour, Crosby)

Yes, I agree, but I would like some objectivity to be brought to the discussion in which it is said, ''This person is in a permanently vegetative state.'' Relatives and carers want to know that that is indeed the case. Unless tests have been carried out, the opinion that is given to them is not credible. That said, if individuals are in a permanently vegetative state, the decisions that one might make about them are entirely different. I make this plea because I believe that the practice of diagnosis based

on the physical manifestations of an individual is frequently made on the basis of the experience of doctors who have treated such people, but as the hon. Member for Tiverton and Honiton (Mrs. Browning) said, delay in the decision making is essential.

Angela Browning (Conservative, Tiverton and Honiton)

Might I add to the equation in the matter that the hon. Lady is discussing, which is complex and at the heart of the Bill, the fact that many decisions are made under terms that one can only describe as crisis management? Crisis management brings in all sorts of issues, whether they are life or death decisions or situations in which something that has suddenly happened to somebody, whether or not they previously had capacity, has an effect on the immediate decisions that need to be made about them. It raises the question of whether the resources are there to identify a real spread of options.

Usually it is resources that mean that one does not really do what is in the person's best interest, because what might be in their best interest simply is not available or offered at the time. Therefore, the time scale on which decisions have to be made—the hon. Lady has just touched on it—is absolutely key. That can be seen right across the spectrum, from a life and death situation to those important day-to-day decisions that have to be made about people when, none the less, time is needed if one is to do the right thing by them.

Claire Curtis-Thomas (Labour, Crosby)

I could not have put it much better myself; I am in full agreement.

Tim Boswell (Conservative, Daventry)

To add to the extremely eloquent point that has just been made, are we not also creating a real crux for medical professionals and other decision makers? There is already a growth in litigation in our culture. Codifying the law and the procedures, and indeed codifying the issue of whether there is capacity, may trigger further litigation, particularly where there is a difference of implied interest in relation to the person concerned.

Claire Curtis-Thomas (Labour, Crosby)

The Bill is a doubled-edged sword; it will produce a significant amount of litigation in cases where there are very different responses to a catastrophic incident involving a patient. For the doctor, a catastrophic case may be one in which the patient is presenting in a coma. The doctor may wish to wait to see how the patient responds to non-intrusive, non-burdensome medication. A person who is absolutely appalled by the presentation of their loved one and the situation in which that loved one finds themselves may desperately want them to be relieved of that condition as quickly as possible, because they have both discussed the situation and it is an absolute nightmare for them.

The doctor may say, ''I think that we ought to wait,'' and the individual may say, ''Here is the directive; we mustn't wait, we must act now.'' That is a real conflict of interest because—this could not happen under the situation today—that individual could go straight to court and say, ''I want the directive enforced.'' Doctors will be involved in conversations that they never had before. Some would say that that was a very good

thing, and it is not a bad thing, but there will be a significant amount of dispute. I want a time lapse to enable individuals to assess things realistically, away from the heat of that awful experience. There should be a period of reflection before decisions are enforced, so that the partners concerned—the doctor, the clinicians, the family, the carers and the nominated deputy—can see the viability of the individual concerned over a period during which certain procedures can be carried out that are not burdensome to the individual but allow everyone a short state of grace. Such procedures are possible in some cases, and we should strive to ensure that those cases receive that consideration.

George Howarth (Labour, Knowsley North and Sefton East)

I, too, welcome you to the Chair, Mr. Hurst. This has been a constructive debate. People have taken different points of view, but they are approaching the matter in a constructive, helpful and thoughtful way.

I want to make a few comments about people with learning disabilities and, in particular, about two of my constituents, my experience with them and how that relates to the issue of capacity. The first constituent is a man in his early 50s whom I have happened to know as a family friend for more than 30 years. He has the capacity to make a lot of decisions for himself, and he does so successfully. He can choose what he wants to eat, what music he wants to listen to and what he wears, but when it comes to decisions about where he should live or whom he should associate with, there are difficulties. He has a loving and concerned family, and I have been involved intermittently in making some of those decisions with them.

My constituent is not going to change; he will never have the capacity to make a proper judgment about where he should be living and whom he should associate with, but he will—I hope for a long time to come—have the capacity to make a lot of decisions that are perhaps less important, but that affect his daily life.

In the second case, I have known the constituent for about 18 years—in other words, for as long as I have been a Member of this House. I am sure that we are all in the same position in that, largely because we make ourselves more available than other agencies, people find their way to us more easily than to other sources of advice. Over the years, I have become the one person whom he can walk in on. Sometimes, he shouts at me. He has access to me without qualification, so much so that occasionally I have been asked to go to case conferences where issues have had to be decided. I seem to have had a longer relationship with him than any social worker. I am not saying that to my credit; we have probably all had the same experience. He can make almost any decision for himself, if he is helped to do so. However, occasionally he will get it wrong. I shall not go into details.

Joan Humble (Labour, Blackpool North and Fleetwood)

My hon. Friend raises an interesting point that is covered by the Bill. There is a difference between having the capacity to make decisions and

making a wise decision. The individuals in both cases that he mentioned may have the capacity to make a decision, but the professionals may not agree with it and deem it to be an unwise decision. However, the Bill will still protect them. He and I may make unwise decisions, but we get on with it. It is to what extent we lead someone who may be deemed to be lacking capacity to also make an unwise decision that must be considered. It is a complex issue.

George Howarth (Labour, Knowsley North and Sefton East)

My hon. Friend sums me up well; I do indeed make unwise decisions from time to time. Certain members of my family would agree strongly with her. I shall take account of what she said.

To continue with my second example, I want to point out that the person will occasionally get things wrong and, using the fourth principle, we could say that such choices are an unwise decision. For a long part of the time for which I have known him, however, he was in a relationship with a woman who also had learning difficulties, and his unwise decisions affected someone else. For example, in addition to having a learning disability, he has had problems with alcohol. The effect that the alcohol had on him affected his then partner. Social services managed to engineer their separation, although they are still close and there is a needy relationship.

I was interested in what my hon. Friend the Member for Crosby said, and the reason why I cited the two examples is that every case is different. It is difficult to prejudge what is right in every circumstance with every person. I am talking particularly about people with learning difficulties, but the same principles could apply anywhere. I am not ruling out the possibility that any of the principles could be improved by one or more of the amendments that have been tabled, but I am most reassured by principles five and six because they seem to provide a safety net, which is, in other words, that action must be in the person's ''best interests''. There are often arguments between professionals and families about what is in someone's best interests, as my hon. Friend pointed out, but the phrase in the Bill provides a safety net.

The other important matter is that the provision is not restrictive of the

''person's rights and freedom of action'',

assuming that the person has the capacity to make such a decision. The idea of setting down principles is good. It helps with the further principle that each case must be judged on its own merits. It is difficult and probably unwise to try to generalise too much.

Tim Boswell (Conservative, Daventry)

Before the Minister responds, I would like him to explain the relationship between the Bill as a whole and the principles in clause 1. We all want there to be principles and we are pleased that they are stated, but it might be useful if he were to tease out where the decision making of persons up to and including the Court of Protection sits in relation to the principles and whether non-compliance or alleged non-compliance with the principles would be one of the tests that they could apply in taking their work forward.

The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. David Lammy): I welcome you to the Chair, Mr. Hurst. This is important legislation and I am sure that our deliberations on it will be assisted by your legal background. However, as you know, the Bill also includes important issues involving ethics that are relevant to us all.

As I said on Second Reading, it is important to emphasise that the Bill affects the lives of over 2 million people. Potentially, it affects all of us in this country, because many of us find ourselves acting as carers at some point, because in an ageing society such as ours issues around dementia and Alzheimer's take appropriate prominence and because of, in particular, the use of the car and the nature of some accidents that occur in all our communities, which result in many people suffering from brain injury to differing degrees.

I spent part of last Friday afternoon with the Royal London hospital's senior consultants and nurses. There was a range of patients suffering from different forms of brain injury—stroke in some elderly patients as well as young people who had been in car accidents. I applaud the work done in that hospital, which is particularly important in the context of London because the air ambulance that serves it picks up people and takes them to its neurological and intensive care units from right across the city.

I also want to emphasise from the outset the fact that this Bill is about the whole of life. We will have the appropriate discussion about advance decisions and the end of life, and it is right that we do that. In doing so, however, it is also right that we acknowledge and remember that if someone lives for 70 years and acquires dementia or Alzheimer's, in the previous 10 or 15 years of their life they may well have had moments when they came in and out of capacity. I think that is what the hon. Members for Daventry (Mr. Boswell) and for Sutton and Cheam were referring to in their opening remarks.

This is an important Bill. As the hon. Member for Daventry also pointed out, it deals with a range of vulnerable people. That is a very broad range, including people with Alzheimer's and dementia, people with brain injury and those with schizophrenia or severe depression or bipolar disease. The Bill sets new standards for those who care for such people and have to do things in their best interests and act in connection with their care. Furthermore, it accords them rights and responsibilities for which they themselves have called for many years and empowers the vulnerable—fundamentally and up-front—in the principles section by saying in subsection (2) that a person must be assumed to have capacity unless they do not.

It is important that we put this in historical context; people have campaigned for such a Bill for a long time. We have come a long way since the 1940s, when a mother who tried to form a playgroup for handicapped children had her advert refused by the local paper because of the shame and disgrace, and a long way since the Mental Deficiency Act 1913—

passed less than 100 years ago—which put people in these categories: idiots, imbeciles, feeble-minded persons and moral imbeciles.

We have come an incredibly long way, which is why the Bill is so important and why it has been helpful that the Joint Committee of both Houses was able to do detailed work—many witnesses gave evidence—and assist us in creating the Bill and allowing the Government to accept and adopt the vast majority of that Committee's recommendations. We come to this Committee after much work indeed—not just the work of the Joint Committee, but that of the Law Commission and a previous Administration, which brings us to this important point.

We will also deal with issues involving research, which is an important part of the Bill, and the establishment of a new Court of Protection in relation to serious disputes. We are trying to make the situation better. I welcome the spirit in which all hon. Members have spoken; they have all had something to contribute to making this legislation as good as possible. However, we also have to acknowledge that in this difficult area—where difficult judgments are being made by doctors, nurses, parents, and husbands and wives—there will still be court cases and practices with which we Members of Parliament are uncomfortable, on which we want to make representations and on which we would want to advise our constituents to seek legal advice. That will still happen, but I have no doubt that after the Bill has been considered here and in another place, there will be a much better situation for people who lack capacity at any point.

There are 11 amendments in this group, Mr. Hurst, so I must drill through them in order, which may take some time. In amendments Nos. 2 and 86, the hon. Members for Daventry and for Sutton and Cheam propose that clause 1(2) be amended to emphasise the Bill's time and decision-specific approach to capacity. This functional approach to capacity is central to the Bill and underpins its ethos of empowerment, personal autonomy and minimum intervention. My hon. Friend the Member for Knowsley, North and Sefton, East (Mr. Howarth) made it clear that capacity can come and go with different issues and we must, at the heart of the Bill, have a functional approach to particular cases that guides us in making an assessment of whether a person has capacity or not. There should be no blanket labelling of incapacity: a person must be assumed to have capacity unless it is established that he lacks it, and capacity must be assessed in relation to each decision to be taken. In that sense, I agree with the hon. Member for Daventry.

Let us examine the first principles. Clause 1 (2) provides:

''A person must be assumed to have capacity unless it is established that he lacks capacity.''

Clause 1(3) further stresses:

''A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.''

Those two principles together emphasise the Bill's decision-specific approach to capacity and the importance of the presumption of capacity as the starting point.

Claire Curtis-Thomas (Labour, Crosby)

Before my hon. Friend develops his argument further, will he tell me how he proposes to make certain that people who present in a permanently vegetative state, or who are described as being in that state, lack capacity? How will he ensure that sufficient tests have been done to confirm that such a person has no capacity? I am not at all convinced that those tests exist. I think that in some cases the matter is dealt with entirely on a subjective basis. Have we really done enough to confirm whether such people have capacity or not?

David Lammy (Labour, Tottenham)

I say to my hon. Friend that the situation relating to people in a permanent vegetative state has been the subject of much debate in the medical and legal professions for some time. Fifteen years or so ago, when that diagnosis was first being made, there may well have been real issues relating to that assessment. I have spoken to consultants and nurses who deal with those situations day to day and I must say that such judgments are being made now.

I also refer my hon. Friend to the British Medical Association's guidelines on treatment decisions for patients with persistent vegetative state, which make it clear that the diagnosis of persistent vegetative state takes time. They talk about a time frame of no less than one year. I have spoken to consultants who deal with these difficult situations and I know that they take a great deal of time.

Dr. Liu at the Royal London hospital told me on Friday that he would make no decisions, and would not feel comfortable making a decision, unless it was done in consultation with his entire care team, the parents and the family involved. It was interesting to be reminded about what is involved in such a care team. A whole team of nurses and dieticians, the medical surgical team, and friends and family who have sat by a bedside during the past year are all involved in such an assessment. They come to a judgment long after a year has passed.

We have the guidelines—the practice. In terms of this particular condition, we should generally applaud the guidelines that are put into practice day to day by the nurses and doctors who have to deal with people in those situations.

Angela Browning (Conservative, Tiverton and Honiton)

The scenario that the Minister painted has caused quite a lot of discussion, both on Second Reading and in Committee. In some ways, two distinct areas are involved. Cases could involve someone who is in a vegetative state as a result of a head injury or an accident and is in a younger age group. I hear what he says, but does he genuinely have confidence that if the person were much older, the same procedure would apply? The thing that came up on Second Reading was the fact that there is grave concern throughout the country that for an older person—I will not put an age to that term, but we all know what we mean—a different set of procedures apply. That is what most worries people.

David Lammy (Labour, Tottenham)

That came across to me in vivid detail when I was a Minister at the Department of Health. I was reminded of it when I first qualified as a lawyer and was lucky enough to practise in medical ethics and medical negligence. One thing will hit anyone who spends any time walking through the wards of our hospitals—that the vast majority of patients are elderly. The air ambulance picks people up all over London and, unfortunately, will pick people up today. The assumption is that young people who have had motor bike and car accidents will be in a neurological ward. However, I went into the neurological ward in the Royal London hospital and the vast majority of people there were elderly and had had strokes.

I saw the doctors and nurses caring for those people. I met a patient who had had an accident six months ago. On seeing the scans and listening to the consultant explaining the context, I could understand why the doctor's judgment had been that the individual had a very poor prognosis and that he might well be a PVS-type case. Six weeks later that young man, Jim, was chewing and sitting up in bed. That is why the issue about time raised by my hon. Friend the Member for Crosby is so important. The doctor said that he had not thought that that would happen, but that it had. He then explained the time issues to me. In the same way, there are serious issues around strokes and clots on the brain—how big they are, where they are positioned—for the many elderly patients there, as people are assisted to some degree of recovery, along with medication.

However, ultimately, as my hon. Friend the Member for Knowsley, North and Sefton, East said, judgments have to be made case by case. Doctors and nurses have to make those judgments. We ought to remember that in this Bill such judgments are subject to a duty of care and to charges of gross negligence and manslaughter, and that this Bill rules out euthanasia, as does English common law. All doctors and nurses make those judgments, notwithstanding the guidance of the British Medical Association and the Royal College of Nursing. I see that my hon. Friend the Member for Crosby, who has nursing experience, is nodding. They all make those judgments every day.

Ann Winterton (Conservative, Congleton)

I welcome the progress made by Jim. The reaction of the doctors and the team looking after him is not unusual. All the consultants to whom I have spoken who look after and treat such people say that they are constantly surprised by the capacity of the human being to recover.

I welcome what the Minister said about taking time to make judgments, but I put in a word of warning. In the past 15 years, there have been well catalogued cases in which people have been diagnosed with PVS and come out of that condition just before further rather drastic action was taken. We can never take such things for granted; it is a very difficult field. I just add that word of warning to what the Minister is saying.

David Lammy (Labour, Tottenham)

I accept what the hon. Lady says. Such judgments are very difficult. Anyone who has been to medical school or has some medical training will know

that our neurological consultants, who are making these difficult judgments, are some of our most intellectually able doctors. Also, nurses and others who commit themselves to work on intensive care units are extremely committed to caring in that context. It is right that such people make those judgments, guided by the underlying concept of the best interests of the patient, and that those best interests should relate to a person's values, beliefs and wishes, which should be taken into consideration. Also, it is right that, for the first time in statute, there is a duty to consult those who surround that individual.

Tim Boswell (Conservative, Daventry)

As a member of the all-party brain injury group, and someone actively interested in the subject, I think that the Minister has made an honest and sensitive attempt to describe the situation in all its complexity.

To steer the Minister back towards the general issues, the subject that we are talking about arose from the discussion on whether there was capacity and whether it was definitely established that steps had been taken to decide whether someone could make a decision. Does the Minister agree that, as we discuss the Bill, it will become essential that the adequate regimes for non-experts as well as professionals, whom the Minister has described, should involve establishing capacity relevant to the particular decision? Does he agree that non-experts and professionals should be trained in the communications skills that are necessary for deciding which decisions can be taken? Otherwise, we will be considering a specific area and not applying ourselves to the general need, which is the need to respond to the need of people without capacity.

David Lammy (Labour, Tottenham)

I am grateful to the hon. Gentleman for taking me back to the central premise, which is that non-medics make judgments daily about capacity. We have made an attempt with the draft code of practice, and I am grateful for the support that the hon. Member for Sutton and Cheam gave to it. It is a draft—a work in progress. We need to consult further and continue that work in order to set out clearly our expectations for assessing that capacity.

Paragraph 3.19 of the code says that in making the assessment, or before deciding whether someone lacks capacity, one should choose a location where a person is at ease, choose a time and day when a person is most alert, not rush and be prepared to abandon an attempt and try again. Those are basic details and those things are actually being done today.

Alan Hurst (Labour, Braintree)

Order. I remind hon. Members that we are discussing a particular set of amendments. Although the clause lends itself to a duplicate Second Reading debate, we should beware of doing that and keep to the part of the Bill that we are considering.

David Lammy (Labour, Tottenham)

That is going on today, as we speak. That is why the key principles have to be read in the context of clause 2(1), which states that

''a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter''.

That leaves no doubt as to the Bill's principle of a time-specific and decision-specific approach to determining capacity.

I move on to amendment No. 7—

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Before moving off amendments Nos. 86 and 2, will the Minister say whether he is of the view that those amendments, which are basically about the same issue—one or other of them is inconsistent with the drafting of the Bill—would in some way add confusion to the Bill, and whether the Government are minded to accept them? It would be useful to know where the Government are coming from.

David Lammy (Labour, Tottenham)

The Government feel that those amendments would not add greatly to the decision-specific context in which the Bill is empowering the most vulnerable, as stated in clause 1(2) and (3) and the entirety of clause 2. It is for that reason that I am unable to accept those amendments.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I can understand how the Government have reached that conclusion, but after our deliberations on the clause today, will the Minister reflect further on the fact that there is clearly great concern about specificity and the timely nature of decision making and that people outside the Committee do not consider that the Bill has adequately addressed that concern? It will be useful to know whether the Government consider that such amendments would confuse the matter, simply because they would add further clarity, detail or weight to the provision. If so, that is not a good enough reason for them not to accept the amendments.

Mr. Boswell rose—

David Lammy (Labour, Tottenham)

I give way to the hon. Member for Daventry.

Alan Hurst (Labour, Braintree)

Order. The Minister ought to reply first to the hon. Member for Sutton and Cheam.

David Lammy (Labour, Tottenham)

I referred to the code to show that there is clearly best practice, which it is right to enshrine in a Bill that we want take to the country when it can be implemented in a right and appropriate way. The code of practice sets that out in detail. As for the legislation, the specific basis on which an assessment is made about whether someone has the capacity has been well gone over by both the Joint Committee and the Law Commission, which is how we reached the principles and clause 2.

Tim Boswell (Conservative, Daventry)

There was an act of osmosis going on in which I was seeking to add a rider to the comments of the hon. Member for Sutton and Cheam. I think that the Minister is saying that he does not want to amend the Bill, but that he is happy to have clear guidance in the code. I would settle for that, but it should be made clear that we are talking about the specific case and particular circumstances that have already been mentioned extensively. Will he use the

opportunity, if appropriate, to say a little about how the principles under clause 1 kick into the Bill as a whole and into the code, too?

David Lammy (Labour, Tottenham)

If I may, I will return to that point.

Turning to amendment No. 7, the hon. Member for Daventry proposes that we include ''adequate'' as well as ''effective'' in clause 1(6), which requires that the least restricted option be considered. It means that the person making the decision or acting must always think whether it will be possible to decide or act in a way that would interfere less with the

''person's rights and freedom of action.''

When people consider the options, they must select one that will achieve the desired outcome. The chosen option must be effective.

I shall give an example to illustrate my argument. A care assistant might be worried about residents with dementia wandering into the kitchen of the establishment unsupervised in case they come into contact with cleaning fluids or bleach. However, to steer them away from the kitchen would be unnecessary if staff ensured that all dangerous liquids were locked in a cupboard. That would not interfere with the freedom of action of the person suffering from dementia. Thus, any measure taken to avoid interfering with a person's freedom of action or independence in a less restrictive way must be adequate to be effective. Again, the code of practice will assist in establishing the idea of the less restrictive manner.

The use of the words ''or adequately'' would set a lower threshold and suggest that the desired outcome to be achieved would have only to be adequate, but not necessarily effective, and that it would be based on practicability or by achieving a compromise.

Clause 1(6) requires that the least restrictive option must be arrived at by having regard to what can be effectively achieved. We are concerned that the amendment may detract from this subsection.

Tim Boswell (Conservative, Daventry)

As I expected, I am broadly sympathetic to the Minister's response. Just for his consideration—I do not ask him to make a decision now—it occurs to me that the omission of the word ''as'' would meet the purpose, because it would still keep the efficiency test, but would not imply a slightly unrealistic equivalence. We want something that works and we want to limit any restrictions on people's freedom of action. Perhaps he will consider whether to include it.

David Lammy (Labour, Tottenham)

I can study the matter further, but as I have indicated, I think that the concept of least restriction, which received much consideration in the Joint Committee, achieves what the hon. Gentleman suggests.

In amendment No. 90, the hon. Member for Sutton and Cheam proposes that an anti-discrimination statement be included in the key principles of the Bill. I appreciate and share his concern that everyone should be treated with equal respect and have equal access to health care and other services. This is in

keeping with the spirit of the Bill, which sets out to change public attitudes and behaviour in relation to people who lack capacity. The principles—in particular the principle of best interests—are key to this. The proposed amendment is, however, unnecessary, as the Bill, along with the Disability Discrimination Act 1995, already contains adequate provision to prevent discrimination against people with disabilities.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The Minister may be about to deal with this subject, and I hope that he will forgive me for intervening if that is so. He talked about the 1995 Act providing sufficient cover in respect of disabled people—a point that the hon. Member for Daventry raised when I spoke about this matter on Second Reading. However, the Government's intention, as I understand it, is that discrimination on grounds of age will apply only to employment and does not extend to goods and services. What cover and protection will older people enjoy under this legislation? Surely they will be treated less favourably if the Minister is relying on the DDA as the basis for giving protection to disabled people, as there is no similar measure for those who are discriminated against on the basis of age.

David Lammy (Labour, Tottenham)

The concept of best interests, which underlies the Bill—we have had much discussion about it already—cuts to the heart of that discussion and has a direct bearing on the effect of that discrimination.

Tim Boswell (Conservative, Daventry)

May I ask the Minister bluntly whether all persons who are deemed or found to lack mental capacity in relation to a particular decision are, by the same token, to be treated as disabled, because they clearly have some lack of functionality? If that is the case, will such people automatically be swept in under the DDA? I am attempting to assist him, and he may want to see what statement he can give us. I am not sure that that would be entirely plausible.

David Lammy (Labour, Tottenham)

''Disability'' in this context must be read with regard to the central concept at the heart of the Bill, which is not disability per se, but capacity. The hon. Gentleman will see in clause 2 and throughout the Bill how we choose to define capacity; it is defined not so as to start down a road to creating a Bill that deals only with a certain group of people who lack capacity, but to deal with all contexts that can emerge.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

It is helpful for this matter to be fully aired at this stage. Amendment No. 90 is carefully drafted to avoid the trap that the Minister is describing. It does not talk specifically about groups of people, such as disabled or older people. It talks about ensuring that a person who lacks capacity is not treated any less favourably than a person who has capacity. Why is it not possible for the Government to include in the Bill a principle on which the Minister agrees with me, given that they have accepted the idea that the Bill should contain a set of principles at its beginning?

David Lammy (Labour, Tottenham)

We consider that the Bill itself offers considerable protection against discrimination. It requires all acts done and decisions made on behalf of a person lacking capacity to be done or made in that person's best interests. It would clearly not be in a person's best interests to be unfairly discriminated against.

Angela Browning (Conservative, Tiverton and Honiton)

May I row in behind this? I tabled amendment No. 135 on clause 4, which would add the following:

''He must exercise non-discrimination in respect of disability or age.''

I seek to include that provision because people who have full capacity find themselves in vulnerable situations in terms of health care and other types of support at home. They are discriminated against on grounds of age and disability, and particularly in terms of age; people who have problems to do with age, and have full capacity to articulate their concerns, have difficulties.

Alan Hurst (Labour, Braintree)

Order. That may not relate to what we are discussing.

David Lammy (Labour, Tottenham)

The DDA provides further reassurance in this area. Part 3 of the Bill deals with discrimination in the provision of goods, facilities and services. It is unlawful for a service provider unjustifiably to refuse to provide a service to a disabled person on the same terms as they provide it to other people, and service providers are now required to make reasonable adjustments to enable disabled people to make use of their services. These provisions mean that hospitals, care homes and the social services must offer people who lack capacity the same standard of service, on the same terms, as they do to all members of the public.

The DDA does not, however, cover discrimination in private situations. That is the case because discrimination is a matter of civil law and is very difficult to enforce in the private sphere. Private individuals discriminate in their personal relationships, and that is not unlawful. As the Bill covers both public and private situations, an all-encompassing anti-discrimination clause would be unenforceable.

Let me add that the place for anti-discrimination provisions is in specific anti-discrimination legislation where there is a proper framework supporting the measures and a proper enforcement mechanism. Therefore, although I share the concern of the hon. Member for Sutton and Cheam to prevent discrimination, we do not think that it is necessary to amend clause 1 as proposed.

Tim Boswell (Conservative, Daventry)

I rise to assist the Minister. I have re-read clause 2; it refers specifically to ''impairment'' and, after that, to ''disturbance''. From my recollection of the DDA, that must have some material effect on the ability of people to carry out their normal functions. The fact that the word ''impairment'' is flagged up could well read across to disability discrimination, particularly if the person is lacking mental capacity.

David Lammy (Labour, Tottenham)

That must be right. Best interests and the idea of capacity are central to this discussion, and it is important that this Bill, as well as other legislation, is read in the context of disability rights legislation.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The Minister is saying two things. On the one hand, he is saying that we can rely on the best interests test extending to incorporate the idea that it would never be in someone's best interests to be discriminated against; therefore, he is saying that this is implicit. On the other hand, he is saying that, if a person happens to be disabled under the terms of the DDA, they can rely also on the goods and services provisions of that Act. There is no similar set of provisions in respect of age discrimination. I am concerned about a person who is being discriminated against because he lacks capacity and about whom, on the basis of age, proxy decisions are being made because of assumptions about his age and what that means. Such a person can rely only on the best interest test, whereas a disabled person can rely both on the best interest test and on the DDA. That is my worry, and it is why the amendment was tabled. Does the Minister accept that that state of play will arise if no further amendment is made to the Bill?

David Lammy (Labour, Tottenham)

I have said that the Bill is not the place for what has been an issue of continuing discussion inside and outside this place for some time. I understand that the form of discrimination to which the hon. Gentleman refers preoccupies him, and it is important that it is encompassed in the best interests concept that is central to the Bill. As the hon. Member for Daventry said, that cuts to the heart of the disability that people worry about, as is set out in clause 2(2).

I am grateful for the explanation that the hon. Member for Daventry gave for amendment No. 6, although I am not sure that it is necessary. In a sense, the Bill has the same effect. For the first time, in health and welfare matters, it will enable people to appoint an attorney or the court to appoint a deputy to make decisions on their behalf if the person in question does not have the capacity to make those decisions for themselves. Thus, the decision is already equally valid. We know from stakeholders that they are pleased that we have given them the power, because most often the attorney will be the wife of long standing or husband of a partner who lacks capacity.

The amendment could be interpreted as giving someone making a decision on behalf of the person who lacks capacity the same freedom as that person would have to make unwise decisions. That would reduce protection available to the person who lacks capacity. In effect, it would remove the best interests protection from the act or decisions, and it could make them unchallengeable except when they breach existing civil or criminal law. I have said much about the nature of best interests. I do not want to go over it again, but I hope that the hon. Member for Daventry will feel able not to press his amendment.

The hon. Member for Daventry also tabled amendment No. 4, which deals with a person's lapsed capacity to make unwise decisions. The Bill provides

that a person is not to be treated as unable to make a decision merely because he makes an unwise decision. That is in line with the Bill's ethos of empowerment, personal autonomy and minimum intervention. My hon. Friend the Member for Knowsley, North and Sefton, East referred to one of his constituents who finds himself very much in that situation. The hon. Member for Daventry proposes that the provision be amended to read:

''A person is not to be treated as unable to make a decision merely because he makes an unwise decision or has made unwise decisions in similar past situations.''

The amendment is at odds with the Bill's time and decision-specific approach to capacity, which I spent some time discussing at the start of my contribution. A person's capacity to make a certain decision will be assessed according to the circumstances and factors relevant at the time, and not on the basis of his previous decisions. My hon. Friend the Member for Knowsley, North and Sefton, East gave the Committee an example and, without going into too much detail—the particular constituent sometimes had a problem with alcohol—it showed that it is right that a decision is made at the time. For that reason, I hope that the hon. Member for Daventry will not seek to press the amendment.

The hon. Gentleman seeks in amendment No. 1 to amend one of the most important principles of the Bill: the assumption that a person has capacity unless it is established that they lack capacity. He proposes that clause 1 be amended to the effect that a person must be assumed to have capacity unless ''and until'' it is established that they lack capacity. We had some discussion about that legal concept. The amendment would destroy the Bill's fundamental, decision-specific approach to capacity, because it appears to introduce a concept of time beyond which a person lacks capacity. As soon as a lack of capacity was established, incapacity would also be assumed and all decisions would be made on the person's behalf. We have had much discussion about that. We must allow those decisions to be taken at the time.

Amendment No. 5 would provide that any act done or decision made on behalf of a person who lacks capacity must be done or made in the person's best interests

''or in accordance with his advance decision''.

The amendment's underlying aim is to ensure that individuals who lack capacity are at the heart of any decisions made or actions taken on their behalf, and to acknowledge specifically advance decisions in the principles of the Bill.

Clauses 24 to 26 would provide for advance decisions to refuse treatment, although specific mention of the issue is not made in the principles of the Bill. Advance decisions are set out in clause 24, and they concern the advance refusal of treatment. They do not cover positive acts done to a person or decisions made on behalf of someone else. Instead, they provide a way for people to maintain personal autonomy over the treatment that they do not wish to receive and to make their own choices if they know that they are

likely to lack capacity in the future. It is important to remember that such a decision would be made when the person had capacity.

If we found ourselves in hospital, all of us in the Room could make a decision about whether we wanted to consent to certain sorts of treatment. We would not have to make that decision in our best interests. As autonomous human beings, we are allowed to make irrational decisions, and the decision to make an advance decision is made when someone has capacity, and the same rules apply. It is important that we do not confuse those two ideas. Of course, in interpreting that advance decision, the doctor or people around would have to make a judgment in the best interests of the patient, but that decision would have been made by the patient when they had capacity.

Tim Boswell (Conservative, Daventry)

Characteristically, the Minister is explaining the issue helpfully. If I hear him right, he has just explained what I thought was the case and may have to be the case; when capacity is lacking, the best interests principle kicks in as the superior principle. Obviously, if a doctor or any other person felt that something was contrary to the best interests of the patient, they would make a decision on that basis, notwithstanding whatever had been said in the advance decision. Of course they would pay regard to that, particularly if the decision was finely balanced, but they would not allow it to prevail if they judged otherwise.

David Lammy (Labour, Tottenham)

We will get on to a detailed discussion about advance decisions later. We have put many safeguards in place to ensure that the decision is made. The simple point is that advance decisions work differently from the principle of best interests. The best interests principle, set out in clause 4, which underpins the Bill and expands on the principle set out in Clause 1(5), does not govern advance decisions. However, in any context, the doctor will, in considering his duty of care, draw on his idea of best interests. It is for those reasons that the amendment is not necessary.

On amendment No. 91, as the Committee knows, the idea of best interests is the key to the Bill. It is the fundamental principle that governs everything that is done for a person who lacks capacity. The hon. Member for Sutton and Cheam proposes that clause 1 be amended to include a consideration of benefit. It is important to stress that when the Joint Committee considered benefit, it said:

''In the context of the comprehensive decision-making framework created under the draft Bill, we concluded that the concept of benefit may be too prescriptive if added to the checklist.''

After much consideration, it ruled out the concept of benefit.

There are a number of reasons for that. First, professionals and courts within our common-law jurisdiction are used to dealing with the concept of best interests. In a sense, introducing the concept of benefit may be seen as suggesting that there is meant to be a change in the basic test, and that is not our intention. Also, an assessment of best interests already involves a consideration of benefit. Establishing a person's best

interests requires consideration of whether a certain course of action, such as a move to a care home, would be to the benefit or detriment of the person who lacked capacity. However, that is different from providing that a decision made or act done must be in a person's best interests and for his benefit.

We are concerned that, although the concept of benefit would place the focus firmly on the person concerned, it might not allow for a consideration of other relevant factors, such as those affecting carers. Let me give an example. Someone caring for their mother or young child might want to arrange for them to go into a care home for a few weeks in order to give the carer a rest, and they might want the care home to provide the respite care that all of us have heard carers in our community talking about. There is a hospice not far from my constituency where people experience that. That situation would be to the benefit of the carer and the mother or partner. It might not be to the direct benefit of the person who lacks capacity, but it would certainly be in their best interests, as it would be better for the carer to have had that respite care. That encapsulates why ''best interests'' is an all-embracing concept. ''Benefit'' is narrower and more prescriptive. That is why the Joint Committee ruled out that test.

Amendment No. 3, which was tabled by the hon. Member for Daventry, would include in the Bill, as part of the key principles, this statement:

''Even where a person may lack capacity, he is entitled to respect for any feelings he may have''.

The hon. Gentleman will see that clause 4(5) states that

''the person's past and present wishes and feelings . . . beliefs and values''

are accorded that subjective consideration. I agree with the sentiment of the amendment, but its aims are encompassed under subsection (5) of clause 4, which deals with best interests.

I conclude with amendment No. 8. The Bill sets out that before acting or taking a decision on behalf of someone who may lack capacity, a person must think about whether their purpose can be achieved in a less restrictive way.

Alan Hurst (Labour, Braintree)

Order. Before I adjourn the Committee in accordance with the Standing Order, I draw hon. Members' attention to a printing error in the programme motion. Hon. Members will be relieved to know that morning sittings are to start not at 8.55 am, but at 9.30 am.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.

Standing Committee A

Clause 1 - The Principles

Alan Hurst (Labour, Braintree)

I remind hon. Members that with this it will be convenient to discuss the following amendments: No. 1, in

clause 1, page 1, line 6, after 'unless', insert 'and until'.

No. 2, in

clause 1, page 1, line 7, after 'capacity', insert

'relevant to the particular situation'.

No. 3, in

clause 1, page 1, line 7, at end insert—

'(2A) Even where a person may lack capacity, he is entitled to respect for any feelings he may have'.

No. 4, in

clause 1, page 1, line 11, at end insert

'or has made unwise decisions in similar past situations'.

No. 91, in

clause 1, page 1, line 13, after 'made', insert 'for his benefit and'.

No. 5, in

clause 1, page 1, line 13, after 'interests', insert

'or in accordance with his advance decision under section 24 of the Act'.

No. 6, in

clause 1, page 1, line 13, at end insert—

'(5A) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity, shall if valid be treated as of equal validity as if it had been made by the person himself'.

No. 7, in

clause 1, page 1, line 15, after 'effectively', insert 'or adequately'.

No. 8, in

clause 1, page 1, line 16, leave out 'rights and'.

No. 90, in

clause 1, page 1, line 16, at end add—

'(7) An act done, or decision made under this Act for, or on behalf of, a person who lacks capacity must not be done in a way that is less favourable than the way in which it would be done or made by a person if they had capacity in a comparable situation.'.

David Lammy (Labour, Tottenham)

I think that I was coming to the end of my remarks and that I had begun to talk about amendment No. 8.

Basically, one must consider the alternatives. First, it may not be necessary to intervene at all in a less restrictive way. If one needs to intervene, there may be an option that is less restrictive of the person's freedom of action and his rights. The amendment says that we should not consider the person's rights when deciding what is the least restrictive action, but only his freedom of action.

As I said this morning, one of the key aims of the Bill is to empower those who lack capacity and protect their rights. Just because someone lacks the capacity to carry out certain actions or to make certain decisions, it does not mean that he forfeits his rights. The rights of the person lacking capacity must be considered when deciding how to help him in the least restrictive way; indeed, we have had some discussion about that.

I will give an example. A young man with learning disabilities or learning difficulties has problems controlling the temperature of the water in his shower. He is unable to understand that moving the dial changes the water temperature. His mother does not want to interfere with his privacy by helping him in the shower, so she installs a new one with buttons that give out water at a set temperature. In a sense, that shows the interplay of rights, the less restrictive manner and the freedom of action, as I think is indicated in the amendment.

Tim Boswell (Conservative, Daventry)

What is troubling me is the view, which might be rather Olympian, that rights are inalienable anyway—if they are given under law, there is no need to talk about them—whereas freedoms and their restraint are a real issue. We will return to that again in relation to the Bournewood case. There was a certain uneasiness about the joining together of rights and freedoms, which is perhaps the motive for tabling the amendment.

David Lammy (Labour, Tottenham)

The hon. Gentleman is right that we will return to that issue. There is a fine balance in the Bill between the rights. He knows that people who care for those who lack capacity often have to do acts in connection with care that can involve restraint and invading freedom of action. I understand that his amendment cuts to the heart of the issue.

Hon. Members will see that I am not talking about a certain prescribed set of rights, such as those set out in the European convention on human rights, but about rights in the most general sense—the entitlement that every human being has and without which they cannot live a fully autonomous life. It is right that those who lack capacity should have those rights as well. That is why I gave the example of the mother who wants to ensure that a son who does not understand the dial in the shower does not burn himself, but who equally wants to ensure a balance between his privacy rights and other things. That is why we come back to the least restrictive manner and the terms in which the clause is couched. I want the rights of those who lack capacity to be respected as much of those of anyone else. I hope that I have covered all the issues that have been raised.

There is one final point to make. The hon. Member for Daventry (Mr. Boswell) asked whether I could speak a little about the principles set out in clause 1 and how they relate to the rest of the Bill. I think that it is worth examining the reason why the principles are set out in the clause. Hon. Members may recall that the draft of the Bill, which was considered by the Joint Committee, did not have principles set out up front. The Joint Committee thought that a statement of the Bill's principles would be particularly useful, and it said in its report:

''We believe that such a statement inserted as an initial point of reference could give valuable guidance to the Courts, as well as helping non-lawyers to weigh up difficult decisions. Evidence given to us indicates this would be welcome to a wide range of those who have to deal with the problems of substitute decision-making in practice. We also believe that such a statement would be valuable in helping to frame the Codes of Practice based on the Bill.''

For that reason, we agreed with the recommendation and set out the principle.

The hon. Gentleman asked me to explain how the principles, particularly the one dealing with the Court of Protection, interact with the rest of the Bill. The principles sit at the heart of the new provisions in the Bill. For example, they make it clear that the starting point is that the person has capacity, and underlining that up front in clause 1(2) means that people will return to it.

Sitting suspended for a Division in the House.

On resuming—

David Lammy (Labour, Tottenham)

I have been on my feet for an hour and a half discussing clause 1, and I hope that I have dealt with all the issues raised. For all the reasons that I have outlined this morning and this afternoon, I ask the hon. Member for Sutton and Cheam (Mr. Burstow) to withdraw his amendment.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I should like to respond briefly to a debate that has seen the useful airing of quite a wide range of issues around principles and the details of amendments. I have learned a few new things, including about the insomnia of the hon. Member for Daventry and his being a serial amender, which I understand is not something that is cured when people enter Government these days. Sometimes amendments are still tabled at that stage. That is the end of the jokes, which were not very good. I shall now deal with the specific details of the amendments.

What struck me most about what the Minister said was the importance of decision making being centred on the person about whom decisions are made, and of that person being at the heart of the decision-making process. Proxy decision makers should not substitute their views, feelings, interests and desires for those of the person on behalf of whom they are making the decision. In so far as the principles in the Bill already

ensure that that happens, they are a good start, and I hope that we can persuade the Government to reflect further on the matter at later stages. The hon. Member for Knowsley, North and Sefton, East (Mr. Howarth) made some excellent points from his own experience about how the principles contained in the Bill could make a significant difference.

I want to deal with my three amendments. The Minister says that amendment No. 86 is not needed because clause 1(2) and (3) and clause 2(1) cover it, and because the code of practice will give clear guidance. If that is to be the Government's position throughout the passage of the Bill in both Houses, the code of practice, from which he read an extract, has to be top notch in terms of delivering clear guidance. There are still issues about chapter 2 of the guidance, and the General Medical Council has made comments in respect of setting out how the principles work through. I am still not confident that the code is enough. There might still be an argument to say that the amendment or something like it should be included in the Bill.

The Minister said that amendment No. 90 is unnecessary. The most significant thing that he said in this debate—I hope that it will be taken into account when it comes to constructing what we as a Parliament mean in enacting this proposed legislation—was that ''best interest'' includes discrimination. He said that it was not in a person's best interests to be discriminated against. I hope that that important point will be taken clearly into account when courts make judgments about these things, as they inevitably will.

After our first sitting, members of the I Decide coalition rightly pointed out that the Disability Discrimination Act 1995 does not cover private acts, such as those of parents, informal carers and others. The DDA also excludes the decision-making processes of public bodies. A lot of things have an impact on the rights and life of a person who lacks capacity where the DDA's writ does not run. For that reason, I press the Government to consider further after the Committee stage whether there are ways to address my concern, which is shared by others, that we should ensure that a person who lacks capacity is treated no less favourably than one who has it, and that that principle should appear at the beginning of the Bill.

The Joint Committee argued cogently for a drawing together of the principles so that they were clearly stated at the beginning of the Bill for the benefit not only of professionals, but of lay people. It seemed to me that it would help to benefit lay people if we were to include right up front the statement that equal treatment is a principle that people must apply when they exercise proxy decision making on behalf of others. However, having listened to our very useful and fruitful exchanges today, and in keeping with the spirit in which the Committee is proceeding, I will not press the amendment. Instead, I will reflect upon what has been said with a view perhaps to returning to these matters at a later stage.

Tim Boswell (Conservative, Daventry)

I do not need to add a great deal to that or to the Minister's comprehensive reply. The ministerial reply was a serious effort. That has not always been the case in the past, but I do not seek to

reopen that debate. He responded to the various points that have been raised on both sides of the Committee and to those raised by the people who have written to us about a range of issues.

It is right to say two things. First, the interests of the person are central to this process. Secondly, proxy decision making is never as good as personal decision making, but it needs to be made as good as it can be, and it should reflect the wishes of the people themselves instead of involving somebody arriving from Mount Olympus to tell them what is good for them. Generally, we are moving in that direction. The principles have been set out, and the Minister helpfully explained not only the reasons for their genesis, but their relation to the Bill. All of that should help our discussions.

At this stage, I do not wish to be insistent about any specific part of the eight points I raised. The Minister gave a full answer to all of them. The deliberations of this kind of Committee should be conducted in a spirit whereby when we raise issues, Ministers fully respond to them, after which we all reflect on whether measures exactly meet what we want or whether we could look at things another way or revisit them later or in another place.

We have made a good start in teasing out the Bill's import and the ways in which the principles and the interests of the individual are central. I hope that we can go on from that to examine, in days to come, the detailed issues as they arise.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to move amendment No. 87, in

clause 1, page 1, line 9, at end insert

'including provision of appropriate communication support'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss the following amendments: No. 89, in

clause 3, page 2, line 20, at end insert

'when it has been presented to him in appropriate format'.

No. 134, in

clause 3, page 2, line 20, at end insert

'presented in an appropriate method to his impairment'.

No. 12, in

clause 3, page 2, line 24, leave out paragraph (d).

No. 88, in

clause 3, page 2, line 32, at end add—

'(4) A person is not to be treated as unable to make a decision by reason only of a lack or deficiency in a faculty of communication if that lack of deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise)'.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I shall speak briefly to this group of amendments. They are all about how we ensure that a person who lacks capacity is provided with every opportunity to communicate their views, wishes, needs and feelings. That might be done through skilled professionals providing assistance or through artificial means.

One of the times when I thought that these amendments were appropriate was when I reflected on the Second Reading speech of the hon. Member for Crosby (Mrs. Curtis-Thomas). She talked very persuasively, powerfully and compellingly about her experience of the communication difficulties that arose from her mother's stroke, and about how she personally had to deal with the situation and found a way to communicate. She expressed her concern that someone with a formal professional responsibility for a person's care might not go to such lengths.

Whether it is right to set the standard at the level at which the hon. Member for Crosby set it in her personal circumstances is what these amendments are about. They are about saying that, even where someone has expressed a view through an advance decision, if they can still communicate, every endeavour should be made to enable them to express their view at the point when the decision is being made.

We are back to the issue that we discussed in considering the first group of amendments—decisions being about the level of capacity at the moment when they are taken. As we heard earlier, someone who has had a stroke may well have full capacity but not the ability to communicate. By tabling the amendments, we are trying to put some specific requirements into the Bill. For example, amendment No. 88 states:

''A person is not to be treated as unable to make a decision by reason only of a lack or deficiency in a faculty of communication if that lack of deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise)''.

I am thinking also of the case of a person with dementia from an ethnic minority community. Such a person may well have come to this country with another first language and learned English later during their life. As a result of the dementia progressing, they may revert back to their first language. It often happens, and it now presents difficulties in care homes across the country. Increasingly, it will become a challenge for care providers to meet that need. Amendment No. 8 is a way in which we can ensure that the needs of people with dementia are met as of right.

I want to use this group of amendments to draw attention to the section in the explanatory notes that deals with the effects of the Bill on public expenditure, particularly in respect of how the Government have come to their judgment in the case of the Department of Health. Clearly, as the hon. Member for Daventry said in discussion on the earlier group of amendments, huge implications for training are already flowing from the Bill. Such implications would certainly flow from the amendments under discussion, if they were successful. There are also huge implications for developing specialist staff to provide assistance in specific circumstances.

Page 38 of the explanatory notes, in the table under paragraph 188, sets out a series of numbers for additional staff—specialists in health, social care and other area—who are expected to be necessary to make the Bill a practical working reality on a day-to-day basis. Is it envisaged that any of those staff will address specifically the issues of communication, over and above receiving the general training that all staff

should receive on that subject? Also, could the Minister say a bit more about the training aspects of the Bill that refer to communication?

We heard earlier—it is right to state it again now—that communication needs time, training and tolerance or patience. Those things are absolutely key to providing the space in which a person's true wishes can be determined and then realised. The amendments are part of that effort. I hope that the Government can respond positively to them.

Angela Browning (Conservative, Tiverton and Honiton)

I welcome you to the Chair, Mr. Hurst, although I do so rather late in the day.

I support the amendments, and as the Committee will see, I have myself tabled one that is not dissimilar to one tabled by the hon. Member for Sutton and Cheam about a person's ability to understand information, based on their own communication difficulty at any given time. I want to bring to the Committee's attention a notice received from the Disability Rights Commission on the subject, saying

''we are very concerned that the resources to meet needs are not currently available to service providers (eg the NHS and local authorities). Ability to communicate capacity may not always be possible due to a lack of resources to meet communication needs. The DRC believes that the commitment to meet all communication needs must be properly resourced and monitored if it is to have any real impact on disabled people's lives.''

There has been amicable progress in Committee, and I do not want to upset the Committee's temperament, but I must be honest with the Minister. First, it concerns me that the Government have assessed that there is already sufficient advocacy in the system and think that they do not have to introduce additional resources to cover new advocacy for the purposes of the Bill. Furthermore, cases will have to be expensive for the individual communication facilities to be made available.

In some cases, such as that mentioned by the hon. Member for Crosby, there will be a close family member with whom the person feels comfortable and is able to communicate so as to express a view that can be clearly interpreted. However, what worries me about the Bill is that there seems to be an emphasis on the individual being able to communicate their decision and being assisted to do so, but there is not the same emphasis on how information and choices are presented to them in the first place.

People in the autistic spectrum, who have a communication disorder, would need somebody who worked regularly with them to interpret for them what was explained and what choices were offered. If the autistic person had nobody, and somebody was appointed under the legislation, they would certainly need to know that person for quite a while. There would need to be a ''getting to know you'' period before any external person could feel that they were interpreting the autistic person's needs accurately.

The tendency, particularly among people at the more able end of the autistic spectrum, is to answer a direct question with an answer, to be seen to be integrating with everybody else. However, until one

starts to unpeel the onion skin, one does not realise that such people are just trying to be helpful and give an answer to a question. We come across that in court cases, where autistic people make the most appalling witnesses because they try to be helpful, regardless of the consequences of giving a helpful answer.

I worry about groups of people within the communication disorder spectrum, the amount of time that would be taken and the appropriateness of a third party to assisting such people if no one was available in the normal course of their care package. That would have resource implications, and I ask the Minister to consider carefully what it means. Under the Bill, some people who lack capacity would receive what we all intend them to receive, but others would be disadvantaged unless the need for resources is recognised.

Claire Curtis-Thomas (Labour, Crosby)

I support the amendments. I, too, am concerned about the lack of appropriate communication facilities for people who present with different difficulties. People who work with people with learning difficulties or specific disorders that affect communication know that insufficient resources are available for them adequately to communicate their needs on a day-to-day basis. My experience in my constituency is that we have had to fight hard to address the needs of people with cerebral palsy, who sometimes have intellectual as well as physical difficulties and need specialist equipment that is horrendously expensive.

My experience of visiting people in hospital who lack communication is that there is no specific facility for them. In the assessment of an individual's capacity, I would like to see an adequate description of their ability to communicate what they desire and of how we can know that they are satisfied that they have the means to express themselves. That should be a deliberate exercise, within which we should establish whether a person can communicate; if so, how; whether we have carried out the analysis; and whether the person has the means to speak.

I do not think that I have ever met an expert in locked-in syndrome, but I am convinced that a number of people in care homes with the syndrome would benefit immensely from an expert who has at their disposal information that normal carers could never aspire to have because the syndrome is so rare. However, the syndrome happens, and there is expertise available that we could draw on.

I have concerns about the amount of funding and posts identified to cope with people with a range of communication difficulties. If we consider the spectrum of people with such difficulties, we see that it is a much bigger problem than is currently acknowledged in the explanatory notes.

Tim Boswell (Conservative, Daventry)

This is a fascinating set of amendments for two reasons. First, I wish to return to an argument that has been well deployed and on which there a dualism of interests in the Committee. I refer to the provision in the real world for people with decision-making and communication difficulties—the subject of the amendments—to facilitate their ability to

communicate their decisions. Secondly, there is the whole legal superstructure or underpinning to the judgment whether people have the capacity to make decisions. That is slightly paralleled by the amendments and, in a sense, it has been useful that different minds have approached the matter from different angles.

The hon. Member for Sutton and Cheam and my hon. Friend the Member for Tiverton and Honiton (Mrs. Browning) have both tabled amendments that want the provision of better communication, and I have no objection to that. My approach was different; it was to challenge the logic of the Bill as drafted, but to say, ''Do not discount somebody because you cannot communicate with them and take that out as a ground.''

Tom Clarke (Labour, Coatbridge and Chryston)

Will the hon. Gentleman go a step further than saying that he had no difficulty with the provision, and be a little more encouraging, for example, in respect of the brilliant point made by the hon. Member for Tiverton and Honiton? In other words, there is much in the Bill that is very good, but it cannot and will not be effective unless we advance the case for advocacy. You will probably rule me out of order, Mr. Hurst, but I must say that we cannot therefore avoid the issue of resources, and we must not ignore the importance of advocacy.

Tim Boswell (Conservative, Daventry)

The hon. Gentleman is developing an extremely seductive position. I shall preserve the delicacy of the Front Bench by not jumping in feet first, except perhaps to give him the broad mood music. I know exactly what he is talking about. He will know—he may even have heard me use the phrase with regard to our joint interests on disability interests, which we share with others in the Committee on disability issues—that I have frequently said that we must use our elbows in this game. We have to find ways, be it with legal levers or arguments about advocacy. Above all, we are articulate people in Committee; we are hired to be so. However, people who lack mental capacity or have an issue about their mental capacity are by definition those who need help. He is making a case, but it may be one that we had better save to a later stage in our proceedings.

Essentially, the Committee is united in saying that people have a difficulty. A lot of it centres on people who have problems in communicating, as the hon. Member for Crosby movingly described in her speech on Second Reading. It is no good just turning one's back on them and saying that there is not time to discuss such matters. The Bill gives an explicit commitment to proxy decision makers and says that they must spend time with the person and, as it were, get inside that person's mind if that is possible.

Joan Humble (Labour, Blackpool North and Fleetwood)

I do not think that anyone disagrees with the tenor of the debate, but clearly we must do everything we can to identify the wishes and capacity of the individual. There will be resource implications, but when I visit special schools, for example, I now see enormous efforts that have been made to communicate

with children who are now surviving because of modern medical advances. Those children, who often have profound communication problems, would not have survived in the past, yet techniques have been developed over the years. Many of those young people are now growing into adults and still have their communication problems, but solutions have been found. As my hon. Friend the Member for Crosby said, we should be building on those examples of good practice and ensuring that resources are available to fulfil this basic principle in the Bill.

Tim Boswell (Conservative, Daventry)

Once again, I find myself much in sympathy with the comments made by the hon. Member for Crosby. There are examples of good practice and they point even more poignantly to the cases where good practice does not apply, where the resources are not available and where people are left without the means to communicate and, perhaps, without the support of advocates, parents, carers or others who will stand up for them and say, ''You need this'' or, ''We will get this for you.''

I am sure that I am not alone in this—indeed, I know that I am not—but today I happen to have been in correspondence with a constituent who has a son with Asperger's syndrome complex. The son is very bright. He, his mother and others, including myself, although to a more modest extent, have had to work very hard to get him the right package of support at school. However, we are beginning to get there.

The hon. Lady is right to say that more people are surviving. They have more complex problems and we are getting to know more about them. Many of those problems centre on communication. I do not think that there is a hair's breadth of difference between the people I have heard speaking in this Committee on the required approach, which is that they need support. As the right hon. Member for Coatbridge and Chryston (Mr. Clarke) said, they need advocacy if it is appropriate. We will discuss how much and when later on, but that is what needs to be done. I will concede that to him before he thinks that I am being evasive.

I owe it to the Committee to spend a little time pursuing the logic of the way in which the Bill is drafted, if only to make the Minister wriggle. I have examined it again; I find that my tinkering instincts usually come in useful. When someone looks at it for the first time and thinks that they might change something or that they will re-examine it, they find that there is an underlying logical shift in the proceedings which is quite interesting.

If one reads clauses 2 and 3 together, one finds that they are about people who lack capacity and about the inability to make decisions. The prior condition set out in clause 2 (1) is that there should be

''an impairment of, or a disturbance in the functioning of, the mind or brain.''

That will arise when we debate another group of amendments, relating to clause 2, so I will not discuss it now, except to say that we understand, by and large,

what it is. What this means, if I may put it in lay language, is that at the material time the person is, to quote from the provision,

''unable to make a decision for himself in relation to the matter''.

That is defined as lacking capacity.

In clause 3, the inability to make decisions is further defined for the purposes of clause 2. There are three tests, and if Committee members look through the explanatory notes they will see the way in which the Government are having to finesse this issue.

The first three tests, as the explanatory notes cheerfully say, will

''cover the vast majority of cases.''

This is exactly about making decisions or the inability to do so.

The first test is that a person must comprehend the information relevant to the decision. The second test is about retaining the information for long enough to make the decision. On clause 3 (2), the explanatory notes make the point that it is necessary only to understand the information

''for long enough to make the decision''.

The person does not have to hold it indefinitely in their mind.

The third test is that the person should be able to use and weigh the information as part of the process of making the decision. That is exactly what we, and what Ministers, do when making decisions as fully capable adults.

A fourth category then applies, which is specifically but not exclusively tied in to locked-in syndrome. It is described in the explanatory notes as

''intended to be a residual category'',

but it is nothing at all to do with making the decision. It is not that one is incapable of making the decision—one may or may not be so—but that one cannot communicate it.

I can imagine a situation, at least logically—this is where I think the Government are in logical discomfort—in which a person could be well able to make a decision and the only problem would be how one knows what decision they are taking. I can then imagine a situation in which an issue could be reopened by somebody emerging from a locked-in state—which might have arisen through some psychological trauma—and saying, ''I knew perfectly what I had to do. This is what I would have done, but now you have done something completely contrary to my wishes.'' I am not even sure that they would not have a case against the apparently innocent person who was the proxy decision maker because their wishes had not been complied with. It is difficult to create a separate category, particularly if the issue is not whether, theoretically, there could be the equipment, but whether in practice the equipment is available at the time when the decision is being taken and the person is therefore able to communicate that decision. There is a logical difference.

If I could wish myself into the Minister's shoes for a moment and imagine myself trying to sort this out, I would fall back on clause 2(3), which states that

''whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.''

I do not think there is an amendment that allows us to discuss that. However, I would say, ''Well, I'm sorry, I can't get any response from person A''—or person X, or whoever—''and therefore I don't know whether they can make a decision, so I will have to work on the assumption that they cannot.'' That would be a more honest approach than dragging in this bit about not being able to communicate.

In the real world, we might be making fine distinctions without a difference. We all agree that we want people to be able to communicate where they can do so and where they have underlying capacity. The issue is simply whether we ought to rule that they do not have capacity because the one thing they lack is not the capacity to make a decision but the capacity to communicate that decision. In the end, we all want people to be able to make the decisions if they can do so, and the people who have to interpret those decisions to be able to understand them, but there is a logical difficulty here and the Minister ought to respond to it, as well as to the substantive issues of care and communication that have been raised.

David Lammy (Labour, Tottenham)

The hon. Members for Sutton and Cheam, for Daventry and for Tiverton and Honiton have all tabled amendments that are, effectively, about the importance of communication and communication support. The first concern seems to be to make sure that people are not wrongly regarded as lacking capacity because they cannot communicate. On Second Reading, my hon. Friend the Member for Crosby movingly explained the wrong assessment that was made of her mother following a stroke.

The second concern reflects the widespread problem of people being wrongly regarded as lacking capacity because the effort is not made to explain the decision to them in a simple or appropriate way. I agree with hon. Members' intentions with regard to those concerns. No one should be regarded as lacking capacity because they have not received adequate communication support, nor should we say that someone is incapable of making a decision because no one took the time to explain the decision to them in a way that they could understand.

The hon. Member for Daventry proposes the most radical solution to this problem. He would delete clause 3(1)(d) and, in so doing, remove the possibility for someone who cannot communicate to lack capacity unless they otherwise cannot ''understand'', ''retain'' or ''use or weigh'' the information relevant to the decision. Although that initially sounds like a neat solution, it would remove the protection of the Bill from a category of people with the rare condition of locked-in syndrome. Clause 3(1)(d) was specifically drafted to include this group of people who cannot communicate in any way. Everyone else who can pass

the tests in clause 3(1)(a) to (d) should, with support, be able to communicate their decision. That is why clause 3(1)(d) says that a person can communicate

''by talking, using sign language or any other means''.

The hon. Member for Sutton and Cheam has tabled an amendment to add mention of more specific communication aids to the list in clause 3(1)(d). The more specific the forms of communication support listed in the Bill, the greater the risk that other forms of support are given less status. For example, amendment No. 88 mentions mechanical aid, but not electronic aids. In the modern age, one might say that electronic aids were equally or more important; there would at least be debate about their importance. There is a risk, demonstrated in the amendment, that in seeking to be prescriptive in legislation, one ends up causing problems or leaving out technological advances in the future.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I understand that point; it is well argued by Ministers dealing with amendments to a whole range of Bills. However, I turn the Minister's attention to amendment No. 87 to clause 1, which talks more generally of

''including provision of appropriate communication support''.

That does not get us into the problem of lists to which the Minister alluded.

David Lammy (Labour, Tottenham)

Right at the beginning of the Bill, in the principles, we made it clear that ''all practicable steps'' must be taken to help people to make their own decisions.

The hon. Gentleman also proposed strengthening the importance of communication support in the clause, but again there are difficulties. He will see that the code mentions the context in which such support is provided. It says that it is important not to overburden a person with information, to give information in a balanced way, to speak at the right volume and with appropriate vocabulary for that person, to enlist the help of others who know or are trusted by the person, and to consider using an advocate.

We must avoid the risk that, by specifically referring to communication support in the principles, we imply that other forms of support are not so important. Communication support in the round is very broad. We could end up downplaying the importance of steps such as explaining a decision to someone at the best time of day, in the best environment, and with the people with whom they are most comfortable.

We believe that it is better to keep references in the Bill to communications sufficiently broad to capture the necessary diversity of provision, and prefer to provide the detail in the code of practice. The code emphasises the importance of helping people to communicate. In particular, I refer hon. Members to pages 18 and 19 of the draft code. The list there may well grow.

In addition to the provisions of the Bill and the code, the hon. Members for Sutton and Cheam and for Tiverton and Honiton have proposed amendments to clause 3 to stress that information must be presented in an appropriate way to people who may lack capacity. As I have explained, the Bill and code together already

emphasise the importance of communicating to people clearly, simply and in a way that meets the needs of the individual, but no specific mention of that is made in clause 3(1)(a).

We have tried to set an example on the subject, producing a number of publications about our own policies in easy-to-read documents, tapes and CD-ROMs. Hon. Members will have seen the accessible summary of the Bill that we have produced, and may be aware that we have already run several workshops about the Bill for people with learning disabilities. We recognise the benefits of that approach and encourage local providers to follow suit.

We must make sure that people are not unable to consent to a blood test just because they do not understand the words ''blood test'', even though they understand what it means if someone demonstrates the procedure. We should not say that someone is not capable of going shopping by themselves simply because they cannot find the shop on the map, if they can find their way when someone clearly explains the route.

I come now to amendments Nos. 89 and 134. We will explore our options further with parliamentary counsel. We want to make the Bill as broad as possible, and I have said why I think that is important. However, I understand the issues raised by Members, and I will take them away for consideration.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The Minister referred to clause 1(3), which mentions taking

''all practicable steps to help''

the person to make a decision. I would like to clarify that. Does that mean that a social services department or an NHS body undertaking an assessment that entails a decision-making process and the obtaining of consent would have to put in place all reasonable measures to ensure that the person can communicate their wishes and their decision? Would the local authority or the NHS have the right to have regard to the resources available to them to provide the necessary wherewithal to facilitate communication? Are resources an issue in providing the wherewithal to facilitate communication?

David Lammy (Labour, Tottenham)

The Bill seeks to enshrine best practice—things that are already going on in our communities—in legislation. The hon. Gentleman knows from taking part in health debates, and I know from my previous job in the Department of Health, that we were open to the fact that there was a lack of linguists and speech therapists in the Department of Health in 1997. That is why between September 1999 and March 2004 there has been an increase in the number of therapists, which has gone up by 9,000. We have met the commitment that we made in the NHS plan and we want to continue to go further and to grow that important area. In that context, decisions have to be made in local primary care trusts and local social service teams across the country. It is also important that, when talking about people who lack capacity, we stress that communication is about meeting their needs

where they are at, and that that is about the manner of presenting the information and the environment in which capacity is established. That is a fine balance.

Tim Boswell (Conservative, Daventry)

The Minister is picking delicately through this issue. I read the runes as saying that there is no absolute commitment to put unlimited resources into communication, although there is a wish to put in more than there are now. I think that that is right. I leave the Committee to draw its own conclusion.

Neither the Minister, nor I—indeed, no Committee member—would want a silly box-ticking approach. However, as a matter of best practice for health care professionals, it would be sensible to develop some kind of audit trail so that, in seeking a solution to such problems, they could establish after the event, or on a continuous basis, that the needs of persons with communication difficulties had been adequately addressed.

David Lammy (Labour, Tottenham)

We have begun workshops and training and they are ramping up and increasing, as my hon. Friend the Member for Blackpool, North and Fleetwood (Mrs. Humble) said. Yes, we should increase capacity and raise standards in training and awareness, but it is also important to put on record the fact that in implementing the Bill, which is shared between the Department for Constitutional Affairs and the Department of Health, we have a commitment between Departments to total additional costs of £34 million in the first year, and £27 million per annum after that. We are committed to the implementation, training and levelling up of good practice, including in social services and the Department of Health. On that basis, I am willing to consider amendments No. 89 and 134 in further detail with parliamentary counsel and I will table an amendment on Report.

Claire Curtis-Thomas (Labour, Crosby)

When my hon. Friend takes this matter further with his colleagues in the Department for Constitutional Affairs, perhaps he might consider a communications audit. Assessing communication can be a subjective activity, but it does not need to be that way.

There are some people for whom this will not be an issue, but other categories of individual present with difficulty communicating or with the total absence of an ability to communicate, or perhaps they use complex methods of communicating. It would be helpful to have a recorded description of the ability of the individual to communicate and, moreover, the means to facilitate communication expressed either by an individual, or their carer on their behalf describing how they are best able to communicate.

I can give a practical example of that. Recently I went to a hospital to visit a constituent in his 90s.

Alan Hurst (Labour, Braintree)

Order. I am afraid that the intervention is too long.

David Lammy (Labour, Tottenham)

In considering this in greater detail, we would have to give the right balance to the code of practice and the legislation and see where those duties lie in relation to the professionals who have to provide them.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

This has been a useful, short debate about issues around communication. I am grateful to the Minister for his response and his willingness to consider further two of the amendments, which is helpful.

I asked the Minister about taking into account an organisation's resources because I had in mind something that he might think about. The Gloucestershire judgment, made some years ago, affected a social services department. It said that the department could take into account its resources when deciding about the care packages that it was able to provide. That has two bearings on the present issue. First, a care package may include a package of support to facilitate a person's being able to communicate their views, wishes, needs and decisions. Secondly, even before such a support package is put in place, there are issues about the authority having to use resources to facilitate the assessment and about its fully involving the individual.

I wanted to be as clear as possible about whether a local authority can say ''Ah, no, we have a budget shortfall this year and we are going to cut it out of the communications budget.''

Angela Browning (Conservative, Tiverton and Honiton)

The hon. Gentleman will recall that that issue arose in the Joint Committee, particularly in respect of social services, because it is not always in Mr. P's best interest if the person setting out the options knows that they are the employee of an authority for which specific limitations have already been identified because of budgetary or policy constraints. That is why it is important for independent advocacy to consider, at that point, what Mr. P really needs, which may be outside their scope, but may be the right thing to do.

I share the hon. Gentleman's concern and he is right to flag it up at this early stage, because I think that we will return to it later. The issue of what is available may be the reality of life, but it may not always be in the best interest of Mr. P.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The hon. Lady is right. We will probably return to that matter, which is why I am flagging it up now. The greater the clarity, the better.

The courts have made a decision about issues around resources for care packages and it is important at this stage, if we are defining fundamental rights, to see whether a fundamental right can also be suborned by a lack of resources to deliver it. I want the Minister to reflect on that and return to it at a later stage, perhaps by means of a further amendment. I look forward to the Minister returning to the issue of communications and hope that the parliamentary counsel can get the format right in respect of the amendments.

Angela Browning (Conservative, Tiverton and Honiton)

I add my thanks to the Minister for saying that he will look again at the matter. I refer him to clause 3(1)(a) where there is no qualification in respect of understanding information, whereas under subsection (1)(d), in respect of Mr. P communicating his decision, it is qualified. It seems unwieldy to have at one end of the list the necessity to have such words in the Bill, while at the beginning of the list when the communication is initially made with Mr. P, the same qualification is not contained in the clause.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.

Question agreed to.

Clause 1 ordered to stand part of the Bill.

Clause 2 - People who lack capacity

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 10, in

clause 2, page 2, line 5, leave out 'an'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss amendment No. 11, in

clause 2, page 2, line 5, leave out 'a'.

Tim Boswell (Conservative, Daventry)

I hope that I qualify for a modest prize for economy of drafting. Two amendments that suggest the removal of three letters must be some kind of record, even for me. They have a point and I shall explain it briefly to the Committee. We have implicitly discussed the clause in substance. We know broadly—we do not differ very much—what a person is who lacks capacity. There may be a theoretical argument to test whether such people can communicate the capacity that they have, but that is subordinate.

One of the issues under the principles in clause 1 and which is meant to be implicit in the Bill is the definition of capacity by function. That is moving away from the examples to which the Minister eloquently referred this morning, which I do not feel comfortable reproducing because the language is so offensive to many people. People are rammed into particular categories, deemed to be idiots or another extremely offensive term and then ruled out.

My purpose in tabling the amendments was to ask the Minister to justify any straying he may have done towards what might be called ''old think''. The explanatory notes to the clause refer to diagnostic tests, which are about

''an impairment of or disturbance in the functioning of the . . . brain.''

When I read them, I thought that the hon. Gentleman might be straying back towards what might loosely be called the medical model. He will understand the

distinction in the disability approach from the social model, for example, when a doctor said that a person was suffering from X syndrome, therefore by definition that person lacked capacity, or there was disturbance in the function of the person's mind or brain. More typically, such remarks would not be addressed to the patient or the individual, but to another person such as a member of the family, along the lines of, ''He can't make a decision, you know; he has X or Y''. That may be the case, especially when there is a clear diagnosis.

However, it is more congruent with the basic approach of the Bill to functionality to say that it should be about the impairment or disturbance in the functioning of the mind or brain—in other words, the condition should not have to be particularly definable, but merely that functionally there was an impairment or a disturbance without giving a precise description. The Minister will have noted that, even as I described the purpose of the amendments, I strayed back into using the indefinite article. Does the mind or brain work, or does it not? If it were impaired or there was a disturbance, that should be sufficient without having to put a label on it.

The logic of those who drafted the Bill is that there should be a label or condition behind the impairment or disturbance. My amendment would make no more than a nice, delicate distinction. Now that I have challenged the Minister's wording, I invite him to defend it.

David Lammy (Labour, Tottenham)

The hon. Member for Daventry has tabled two amendments to clause 2. Their effect would be to imply that any temporary impairment or disturbance in the functioning of the mind or brain would not mean that a person lacked capacity. By removing the references to ''an'' and ''a'', the amendments imply that impairment or disturbance of the mind is absolute and fixed, whereas the current references to ''an impairment'' or ''a disturbance'' allow better for temporary lack of and fluctuating capacity; we had a lengthy discussion about fluctuating capacity and specific decision making this morning. For those reasons, these amendments are undesirable.

Over the past four or five years that I have been an MP—is it that long?—I have been engaged with a young autistic boy in my constituency. I first met him when he was about 12 or 13 and he is now in his late teens. I know from my engagement with him that he has been on a learning curve. There are decisions that he would have struggled with at the beginning that he can now make. The wording seeks to capture both that context and the fluctuating decision making I spoke about earlier. For those reasons, I hope the hon. Gentleman feels able to withdraw his amendment.

Tim Boswell (Conservative, Daventry)

The Minister is persuasive. We are close on this matter, and there has been no harm in discussing it. I understand where he is coming from, and I think he knows what I am worried about. We will

give him the benefit of the doubt on this occasion. Therefore, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 9, in

clause 2, page 2, line 15, at end insert

'or by D if he shall not have attained the age of 16 years, unless he is under the supervision of a suitable adult'.

This is a completely different kettle of fish, and it could be argued that it does not have too much direct relevance to many things we are considering today. For those who have studied this clause, the Minister is entirely reasonably providing that there should not be a clash with the Children Act 1989 in relation to persons under 16, save only for where there may be assets or otherwise that may continue on to their adulthood. I am thinking of sad Court of Protection cases, for example.

I have no problem with those provisions. I have tabled this amendment to raise a different issue in relation to what might be called young carers. A young person could be the subject of decisions about mental capacity in one place or another and equally a person who might be called on to care for someone who lacks mental capacity. I do not wish to create a scenario in which the normal recourse would be for young people to be burdened with making life or death decisions in the extreme case, or major decisions relating to assets, which by our law they would not be able to make, possibly even in relation to assets they themselves held on behalf of a person who lacked capacity and was a family member.

What I am saying to the Minister—I think we will all be familiar with this from the real situations in our constituencies—is that there will be cases in which persons do not have full mental capacity, or at least do not have it at a particular time, and a young person may be called on to intervene or help out in their situation. That may even be a very sensible regime, as opposed to an irresponsible one, if it is provided. Nobody is saying there should be no support or supervision. However, there could be cases where this would be either the right or the inevitable thing to do.

The Minister may be aware that the doctrine in clause 5 lay in the common law doctrine of necessity—somebody has to do something because there is a need and the individual has no capacity. It is not fanciful to assume that there may be cases where a young carer has something to do with the situation. I am not clear whether any provision is made in the Bill for such a young carer, although I may have overlooked something.

The amendment is designed to raise the issue and to state that where a young person must make even day-to-day decisions on behalf of a person without capacity, rather than say absolutely that they cannot do so, it might be more sensible to say that they can, but that they must do so under the supervision of a suitable adult—no doubt with any advice that might arise from the public guardian or social services.

This is a real-world issue and it is quite an important one. I would be grateful if the Minister and other members of the Committee shared their wisdom on it.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I want to use the amendment to pick up a related theme that also runs through other parts of the Bill: the period between 16 and 18 when substantial aspects do not apply to someone who lacks capacity. Clause 9 and clause 24, which is about advance decisions to refuse treatment, make it clear that both in the case of lasting powers of attorney and of advance decisions, P must have reached the age of 18.

That means that those individuals are within the ambit of the Bill from the age of 16, but do not have the full benefit of the protections and opportunities in terms of the proxy decision making it envisages. On the point made by the hon. Member for Daventry, people cannot be designated as donees between the ages of 16 and 18 if they have incapacity. They cannot be given that role either.

Tim Boswell (Conservative, Daventry)

The hon. Gentleman is on to a material point, but I am sure that he will be aware that if a young person with their own capacity were between those ages, they would not be allowed to make a valid will anyway now. There is quite a wide issue of application.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I take that point; it is an entirely fair one. I am seeking to get from the Government details about the issue of the interface with the existing children's legislation. Clearly, there is an issue that the ambit of the Bill is extended to those people post-16, but does the ambit of the Children Act 1989 still also apply to them? How do the two interface? How is that to be managed? Which courts will deal with them in that respect? Will it be the Court of Protection or other courts that would be more responsible for dealing with family, child protection and other matters? Where do they fit? As a result of this gap, it would be useful if the Minister spelled out the Government's thinking and how the interface will be dealt with.

David Lammy (Labour, Tottenham)

Clause 2 makes it clear that when the Bill refers to a person who lacks capacity, that person will be 16 or over. Children, for these purposes, come under the jurisdiction of the Children Act.

The amendment refers not to P—the person lacking capacity—but to D, a carer, and says that carers must be over 16 if they are to exercise any powers under the Bill, or, if they are under 16, they must be supervised by an adult.

The Bill already says that donees of lasting powers of attorney and deputies must be 18 years or over. We have had some discussion on that and I want to associate myself with the remarks as to the distinction between what someone can and cannot do at 16 or 18. I say to the hon. Member for Sutton and Cheam that there is no contradiction in terms, and I want to explain why.

Of course, the Government do not encourage children to take on onerous caring responsibilities but, as the hon. Member for Daventry said when he talked about real-world examples and issues, we must accept

that a child may well carry out acts in connection with care—for example, for a brother or sister—that are not work as such but friendly actions. I fear that the amendment would create problems in families and make young people unsure about what they could and could not do.

Let us take the example of a 15-year-old boy whose elder brother has learning disabilities. Every morning, he helps his brother to get dressed. Should he continue to do that? Should we interfere with that everyday occurrence in families in all our constituencies? Of course we are not attempting to interfere with that. It is right to remind the Committee that, to emphasise that day-to-day power, we renamed clause 5, so that its title refers to ''Acts in connection with care'', and changed the reference to ''general authority'', about which the Joint Committee had deep concerns. That has got us to where we are.

Children under 16 may be perfectly capable of carrying out some actions, and I would not want to make them feel inhibited from doing so, nor would I wish to remove the protection afforded to them by clause 5. The Bill does not give people a general authority to act. Clause 5 provides statutory protections against liability in certain situations. If the clause did provide a general authority, I would be inclined to agree that children should not be given such an authority. However, many young people help to care for an older friend or family member, and I would not want to discourage that. The key thing to emphasise is that the Bill gives them a defence, not a general authority.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I have the impression that the Minister is concluding. I want to ensure that, before he does so, he addresses my concern about whether people without capacity, or with fluctuating capacity or whatever, who turn 16 will begin to enjoy the benefits of the Bill. They will not have the full benefits of the Bill until they turn 18. The question, therefore, is whether they retain any protections or benefits under the Children Act, or whether they move out of the protection of that Act and into a period when they do not have the full benefits and protections of the Bill.

David Lammy (Labour, Tottenham)

I am grateful for the way in which the hon. Gentleman put his concerns. In relation to those who are 18, the clauses that he emphasised relate specifically to the acts of the proxy. The rest of the Bill—including acts in connection with care and best interests being central to some decision-making—relates to a 16-year-old. That is the balance, and that is why I said in my opening remarks that there is no contradiction. The Children Act relates specifically to minors, and the determination that we have mentioned is for minors up to the age of 16.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I think that I need support with communication today, because I am not getting my point across clearly enough. The issue is not about those acting as carers; it is about those lacking capacity who turn 16. Under the Bill, for two years they would not have rights to appoint a power of attorney or in respect of advance refusals. I am not necessarily saying that they should have those rights, but I want to clarify

how that two-year period works in relation to the Children Act. Does anything in that Act continue to apply to them, as they do not benefit fully from the Bill?

David Lammy (Labour, Tottenham)

The hon. Gentleman referred to the Children Act 1989. May I undertake to write to him in more detail on that issue?

Tim Boswell (Conservative, Daventry)

Those exchanges were useful. I am sure that the Minister will want to copy the letter to the other Committee members; a real issue is involved. I would have some diffidence in extending the full monty to persons of that age, let alone having them as appointees for other people, without a broad reconsideration of the age of majority. I do not think that that is the issue. One would feel uncomfortable if such young people got into some lacuna between the protections that they enjoy as children and those that they would enjoy as adults with mental capacity, who may make their own disposition by will or advance decision, for example. We have not discussed the issue, and I will not go on about it now, but there is an argument for people to build their advance decisions into their will making. That would be an example of good practice for the future.

To come back to the specific point, I understand what the Minister says. In practice, there is, rightly, a reluctance to put young people into the invidious position of having to take major strategic decisions on behalf of another person, be they their sibling, parent or whoever else. Equally, there is no bar on their being consulted about something when they know and love the person and may well have an informed view. However, children should not finally be put in the position of having to take the decision for the person who lacks capacity. That is not a problem.

My concern is about what used to be called the general authority, which has now become:

''Acts in connection with care or treatment''.

I do not differ from the Minister on the issue. It is not only often the case, but entirely desirable, that somebody should prepare a simple meal for their sibling, for example, if they happen to be around. That is a kind and loving thing to do and may well bring the family closer together. We live in a litigious world and are anxious to provide protection for such reasonable acts.

The only point on which I would pause is that in civil law a young child is, at some point, below the age of suability, because they are not regarded as having capacity. The Minister will know more than I do about the matter; I need to check the exact age. In light of his remarks, I wonder whether the authority for care or treatment should extend to such a young person, on the grounds that there is no issue about their suability anyway. That may be a consideration. Having said that, there may be circumstances—one reads and generally rejoices about them—in which a very young child does some caring act. Perhaps their mother has been taken ill and lost consciousness; they may ring up the emergency services to say, ''Come and help'', or perhaps they loosen the person's collar and get them

breathing again by whatever improvised means that they can use. Nobody would want to stop that, but he might like to pause on some of the issues.

The matter should certainly not be pressed to a Division, but it has been important to clarify such apparently loose ends. I am grateful for the Minister's explanation, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 ordered to stand part of the Bill.

Clause 3 - Inability to make decisions

Angela Browning (Conservative, Tiverton and Honiton)

May I ask the Minister for clarification on the inability to retain information, as outlined in subsection (1)(b)? Subsection (2) states:

''The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.''

Can he clarify the provision? When I read it, I envisaged a scenario in which someone would be regarded as incapable of making a decision about residential care, for example, because he was unable to retain the information. However, it would be common for someone who has talked to carers and others about moving into residential care and who has been taken to look around a particular home to have forgotten all about the initial experience on being admitted a few weeks later. I wonder whether there is a contradiction in the clause and the meaning of ''a short period'' under subsection (2).

David Lammy (Labour, Tottenham)

I am grateful to the hon. Lady for her contribution. I come back to Jim, whom I met in the Royal London hospital on Friday last week. Two factors are involved. Six weeks after his major car accident, Jim cannot retain lengthy information about the context of his environment. Indeed, doctors and nurses told me that there are occasions when he wakes up and presents himself as aggressive and confused because he did not realise that he was in hospital.

Jim can, however, make quite clear decisions. He is beginning to get his speech back, and I saw him working with his speech therapist about his food and diet. In that sense, he can retain information and draw on it. When one talks to neurologists about the lack of understanding that they still have about the brain, it is fascinating to know that people can draw on basic information about food and diet, which relates to parts of the brain that grow first, as it were, but cannot talk about the accident or make detailed decisions.

The interplay between subsections (1)(b) and (2) goes back to the functional test between the ability to make a judgment about fluctuating capacity and the ability to make a distinction in what may be day-to-day or small decisions, or more serious ones. The hon. Lady will know that it would have most certainly been

the case not so long ago that Jim would just have been assumed to lack capacity. He would have been fed what doctors, nurses and anyone else thought he needed. There would have been no attempts to communicate with him about his diet. From what I saw, Jim has the ability to communicate, for example, whether he has a peanut allergy, but not to retain more complex information. The clause allows carers to make those difficult judgments that must be made on a case-by-case analysis.

Question put and agreed to.

Clause 3 ordered to stand part of the Bill.

Clause 4 - Best interests

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 13, in

clause 4, page 2, leave out line 36.

Alan Hurst (Labour, Braintree)

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.'.

Tim Boswell (Conservative, Daventry)

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.

Ann Winterton (Conservative, Congleton)

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.

Claire Curtis-Thomas (Labour, Crosby)

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.

Alan Hurst (Labour, Braintree)

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

Claire Curtis-Thomas (Labour, Crosby)

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.

Angela Browning (Conservative, Tiverton and Honiton)

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.

Claire Curtis-Thomas (Labour, Crosby)

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.

Angela Browning (Conservative, Tiverton and Honiton)

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.

Claire Curtis-Thomas (Labour, Crosby)

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.

Kevin Barron (Labour, Rother Valley)

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.

Claire Curtis-Thomas (Labour, Crosby)

I understand that.

Ann Winterton (Conservative, Congleton)

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.

Claire Curtis-Thomas (Labour, Crosby)

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.

George Howarth (Labour, Knowsley North and Sefton East)

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—

Alan Hurst (Labour, Braintree)

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.

George Howarth (Labour, Knowsley North and Sefton East)

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.

Claire Curtis-Thomas (Labour, Crosby)

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''?

George Howarth (Labour, Knowsley North and Sefton East)

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.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

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.

Joan Humble (Labour, Blackpool North and Fleetwood)

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.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

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.

Angela Browning (Conservative, Tiverton and Honiton)

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.

Tim Boswell (Conservative, Daventry)

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?

Angela Browning (Conservative, Tiverton and Honiton)

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''.

Claire Curtis-Thomas (Labour, Crosby)

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.

Angela Browning (Conservative, Tiverton and Honiton)

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.