Mental Capacity Bill

Public Bill Committee, 21 October 2004.

Standing Committee A

Clause 4 - Best interests

James Cran (Conservative, Beverley and Holderness)

I remind the Committee that with this we are discussing 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.'.

David Lammy (Labour, Tottenham)

I welcome you to the Chair, Mr. Cran. We had an interesting debate on this important Bill on Tuesday. That debate will continue today and, under your chairmanship, so too, I hope, will the constructive manner in which we have all engaged to make the Bill better.

We are considering clause 4. On Tuesday, hon. Members raised concerns that I listened to with great interest, and I hope that my job this morning is to reassure them that the Bill will not expose people to dangers that hon. Members fear. ''Best interests'' is the Bill's fundamental principle, and it governs everything that is done for a person who lacks capacity. I am grateful my hon. Friend the Member for Blackpool, North and Fleetwood (Mrs. Humble) for reminding us that we need to consider the clause against the spirit of the Bill's supportive and protective ethos.

The best interests clause is based on the common law position. I want to reassure my hon. Friend the Member for Crosby (Mrs. Curtis-Thomas) and others that best interests is an objective test, although we had much debate about whether it is. It is not a test of substitutive judgment or in any way a subjective test. Losing objectivity could not be in a person's best interests, and my hon. Friend was right to say that. The person's best interests have to be at the heart of the Bill.

Angela Browning (Conservative, Tiverton and Honiton)

I want to intervene on an issue that I raised during our debate on clause 4 in our last sitting. That issue was also raised on Second Reading, but we have not yet had a definitive answer on it, so I would be grateful if the Minister provided one. Is it his

understanding that the term ''treatment'' in the Bill refers to, and includes, hydration and nutrition, howsoever delivered?

David Lammy (Labour, Tottenham)

The hon. Lady will know that that matter has been established in common law. If she speaks to doctors and medics, she will learn that there is a fine line between care and treatment. Last night, I spoke to Dr. Andrews, the country's pre-eminent expert on permanent vegetative state, who is based at the institute in Putney. He said, ''Look, please let's not be simplistic about this; when we talk about nasogastric tubes—tubes into the stomach—the tubing itself is clearly treatment, but the food falls into the category of care.'' It is clear that there is a difficult dividing line there, which we can talk about in further detail.

Angela Browning (Conservative, Tiverton and Honiton)

I am pressing the issue because when a Bill becomes an Act of Parliament, there are inevitably court cases in which people ask what Parliament's intention was when legislating. That is why I am asking the Minister, as the legislator, to put on record his understanding of the meaning of a word in his Bill. What is the meaning of the word ''treatment'', for the purposes of the Bill? I am referring not just to people in a permanent vegetative state, as I think I explained in our last sitting; in some ways, those are more complex cases. I am talking about the many thousands of people who may not be able to access nutrition and hydration by their own means, purely because of frailty and other such circumstances.

When we legislate, it is important that we and the people outside the House are clear about Parliament's intention. Again, I ask the Minister in charge of this Bill whether it is his understanding that, for the purposes of the Bill, the word ''treatment'' means hydration and nourishment, howsoever delivered?

James Cran (Conservative, Beverley and Holderness)

Order. I did not interrupt because an important point was being made, but interventions should be a great deal shorter than that.

David Lammy (Labour, Tottenham)

May I say to the hon. Lady, looking her in the eye and answering her question directly, that she is attempting to push me down a medical road? It is for Parliament not to substitute the judgment of the medics, nurses, carers and parents in our hospitals, but to give them the framework in which to make difficult decisions. That is why the Bill talks about best interests and why we are preoccupied with them at this point in Committee. That is the judgment that we require of our medics. It is not for me to tell our doctors—many of whom have 15, 16 or 17 years of neurological expertise, which I do not have—how they should make those fine judgments on care and treatment.

Tim Boswell (Conservative, Daventry)

Very simply and, I fear, possibly simplistically, I seek to summarise the Minister's argument. As I understand it, his contention is that treatment, when considered by a professional person—a clinician—is to be interpreted as action being taken, whatever is appropriate, in the person's best interests. Our concern is that they are secured as an objective principle. The clinician's duty is to see how we get there.

David Lammy (Labour, Tottenham)

I am grateful to the hon. Gentleman for supporting me and my attempts to ensure that we have that clear clarification about our purpose on these important subjects.

Ann Winterton (Conservative, Congleton)

I am most grateful to the Minister for being extremely generous in giving way. He is quite right in that we are creating a framework, which can be interpreted in different ways by different people at different times when using their professional judgment. There is, however, one inescapable question on whether there is omission of what he calls treatment and what I call basic care—hydration and nutrition—for a patient who is not dying: is that his objective or not? If not, we should make that clear here and now.

David Lammy (Labour, Tottenham)

In the circumstances that the hon. Lady outlines, that is not a matter that should concern the Committee, but one that is dealt with under criminal law; it is called manslaughter. It is also dealt with under our common law; it is called gross negligence. It is dealt with under the oath that our doctors take—it is called the Hippocratic oath—and the duty of care that they have. I will explain that in a little more detail.

Angela Browning (Conservative, Tiverton and Honiton)

May I prevail on the Minister once more?

David Lammy (Labour, Tottenham)

I will not give way again. I have not even got into my stride and I have given way four times, so now I am going to make some progress.

Best interest does not equal what the person would have wanted or what I would want if I were that person. That means that things can be done in the best interests of an incapacitated person that he might not have wanted. I will give hon. Members an example. Even if someone had a lifelong aversion to needles, a decision could still be taken to give them the necessary injection when they were unconscious after a car crash.

I assure my hon. Friend the Member for Crosby that she need not worry that a proxy could say that someone should not be treated simply because they had expressed a wish to die, even if the person—say, the person in the car crash whom I mentioned—had such a wish before the crash. The objective conclusion would have to be that it was in their best interest to be treated for their injuries.

Claire Curtis-Thomas (Labour, Crosby)

I am relieved to hear that we want to define best interest objectively, except, of course, in clause 4(5), which we have chosen to talk about subjectively. I would be grateful if the Minister repeated what he said. He said that things would not be done, even in a person's best interest. I think he said that even the wishes of the person would not be taken into account.

As I read the Bill, the person's wishes would be taken into account, and they would be subjective. I am asking not to remove the subjective elements of best interest, but to add a true objectivity to that, which would be a measure of the impact of medication and treatment on the person's life and health. That is what I want. If I got it, I would be a much happier person.

James Cran (Conservative, Beverley and Holderness)

Order. I, too, would be a much happier person if the interventions were shorter.

David Lammy (Labour, Tottenham)

I am trying to deal centrally with the point that my hon. Friend makes. I refer her to the draft code, which says

''it is important to recognise that the person's wishes and feelings will not automatically control the outcome. The 'best interests' principle is a fundamental principle, requiring what is best for the person.''

My hon. Friend also expressed concern that a person had to show only reasonable belief that they had acted in someone's best interest. She referred us to clause 4(8), in which is seen the climax of the best interest clause—reasonable belief, which that person has to have.

I assure my hon. Friend that, in law, reasonable belief is a high test to meet. In the British common law system, it is widely understood as the most objective test. She may remember the Clapham omnibus test of reasonableness: what would a reasonable man think in the circumstances? She may recall the concept of diminished responsibility in criminal cases. If a woman—usually, it will be a woman—finds herself in the dock charged with murder in a domestic violence case, the jury make a reasonable assessment. They have to have a reasonable belief that she acted in self-defence. That is our most objective test, which is why it comes at the end of clause 4. The doctor—the person put in this circumstance—weighs up all that has gone before, having consulted and taken into account a person's past and present wishes and feelings—all the context. He makes an objective assessment of that information.

Claire Curtis-Thomas (Labour, Crosby)

I am grateful to my hon. Friend for giving way. I think that what he describes is a commendable thing to do and I am not arguing with him, but he has repeatedly said that what would be done to that individual would be in their best interest. Presumably, that means in the best interest of their health and life. If we take that as a given, why cannot we put objective measures of health and life in clause 4, along with the subjective elements about the person's wishes and beliefs? Then we would have a complete package with no, or at least reduced, ambiguity in the interpretation of clause 4 when such matters were decided in court.

David Lammy (Labour, Tottenham)

Two things have been conflated. Is the clause about objectivity? I have said to my hon. Friend that it is. The clause is about reasonable belief and weighing up all the information, and some of that information is subjective. I hope that satisfies her.

Claire Curtis-Thomas (Labour, Crosby)

It does not.

David Lammy (Labour, Tottenham)

I am trying to do my best. Speaking as a lawyer, I would say that the definition of ''best interests'' in clause 4(8) is clearly objective, but I will continue to consult widely with stakeholders on the nature of that objectivity, because I want to put it beyond doubt. I am keen to continue that dialogue with doctors and medics. That is as much as I can say.

George Howarth (Labour, Knowsley North and Sefton East)

I am grateful to my hon. Friend for outlining the approach that he intends to take. I too have spoken to doctors since we last met, to try and get a clearer picture. The case that has been put to me is that, although in such cases they will look at every

objective measure available to them, at the end of that process they have to form a judgment. I think that my hon. Friend would consider that judgment to be subjective. That is possibly the difficulty in which we find ourselves.

David Lammy (Labour, Tottenham)

I am grateful to my hon. Friend. Sometimes such decisions are difficult. Every day in our hospitals we require decisions to be made by multi-disciplinary teams—not just by the medics, but also by the families involved. They have to weigh up many things in making their determinations, and on the balance of what they have heard, they make an objective assessment. In a sense, that is best practice. We as parliamentarians do the same thing. How many times have we sat in our surgeries and heard about neighbourhood disputes, one week from one party, the next week from the other? At the end of the day we make a reasonable objective assessment about what is going on. The judgments that we are discussing are obviously far more serious, and they are required of professionals every day of the week.

The hon. Member for Congleton (Ann Winterton) expressed concerns about doctors and proxies, and the possibility of abuse. As I have said, if a doctor fails to provide treatment in a person's best interests, or goes along with an attorney's views when it is clear that the attorney is not acting in a person's best interests, that doctor may be liable in negligence. An attorney may be liable in negligence if he refuses, contrary to the person's best interests, to consent to treatment, because the attorney has a fiduciary duty. If a doctor has any doubt about whether the attorney is acting in the person's best interests, he may safely treat the patient, and attempt to resolve the conflict, if necessary, by seeking a ruling from the Court of Protection. We shall discuss that newly empowered court in more detail later.

I have explained why the ''best interests'' assessment is not subjective, and I shall explain why we explicitly mention wishes and feelings in detail. The current common-law test already covers them. In response to the Joint Committee's recommendation, we added explicit mention of someone's beliefs and values. Decision makers should not be allowed to ignore such personal factors. As the hon. Member for Daventry (Mr. Boswell) reminded us on Tuesday, just because someone is incapable of making a decision, it does not mean that they have no feelings. My hon. Friend the Member for Knowsley, North and Sefton, East (Mr. Howarth) was right to say that objective and subjective factors come together in decision making; all relevant factors must be considered for an objective decision to be reached.

Amendment No. 13 would remove the reference to a decision maker considering all circumstances ''appearing to him to be relevant.'' I agree that we want a full range of circumstances to be considered as part of the assessment for best interests, and that we do not want someone to decide arbitrarily or maliciously that something is or is not relevant, but it is important that the circumstances considered are relevant to the decision. I am sure that the hon. Member for Daventry agrees. Otherwise, the decision maker would be expected somehow to be aware of

factors of which he could not reasonably be aware—such as someone's health records for a period when they lived abroad, or their financial situation—when taking a health care decision such as what medical treatment to give that person for a heart problem.

Claire Curtis-Thomas (Labour, Crosby)

I wish that I could respond instantly to some of the Minister's points, but I cannot, as I must reflect on them. I am sure he will forgive me. I must return to the issue of best interests and my desire to see health and life to be included as objective considerations. The Minister said that if an individual made a best wish that they did not want to be treated using needles because they were afraid of them, and they came in to hospital unconscious, the doctor would say, ''Well, despite that, I am still going to give him an injection.'' Presumably, the doctor would have reflected on the impact on the patient's health and well-being of not giving the injection, and would have made an objective judgment to override the patient's decision.

At that point, the advocate, or whoever, could say, ''I'm sorry but he has expressly said that he does not want that,'' and that would produce a conflict. Why do we not introduce measures of objectivity so that we have a level playing field, and a consideration that is disadvantageous to the health and life of an individual can be countered by an objective consideration, which the doctor will undertake. I do not want to put that doctor in the position of having to go to court to prove that what he has done is not an assault on the individual, but is good for their health and has made them comfortable.

James Cran (Conservative, Beverley and Holderness)

Order. That too was repetitious. I know that important points are being made, but for the sake of order, interventions must be proper. All hon. Members will have the opportunity to speak again if they so choose.

David Lammy (Labour, Tottenham)

My hon. Friend the Member for Crosby has gone on to discuss an advance decision, but we are not necessarily dealing with advance decisions when we consider best interests. We will talk about the effect of advance decisions later in the Bill. As I said on Tuesday, we can all make decisions—some irrational—about our health care. We can go into hospital and say, ''Under no circumstances will I have a needle,'' because, as people with capacity we can look ahead and say what we want. We need to ensure that we have the right safeguards and that doctors make the right assessments and weigh factors when considering that. That discussion will come later, but we should not confuse that ability with what we are talking about, which is best interests.

I stress that if a decision maker were wrongly to assess a person's best interests, protection from liability under clause 5 would not apply. We should remember that the clause is about protection, and that provision would not apply if the assessment were wrong. Under existing provisions, if a doctor fails to give life-sustaining treatment, he can be found guilty of gross negligence or manslaughter. I referred earlier to the high standard of reasonable belief that the courts would apply to anyone claiming that they had acted in someone else's best interests.

I turn to amendments Nos. 110 and 138. In the Bill, we have set out an objective best-interests test, and we feel that it would not be helpful to modify that principle for certain cases as proposed in the amendments. It is also possible that the amendments could be interpreted as having the opposite effect to that intended. A provision that allowed the decision maker to consider someone's ''life and health'' could be interpreted as permitting the decision maker to take account of the value of that person's life, perhaps making a negative value judgment about the quality of that life—[Interruption.] I reiterate that a negative assumption could be made about the quality of life. We have worked carefully with the Law Commission and the Joint Committee to get the wording right, so that it does not have unintended outcomes.

We must be careful not to open the door to arguments about the need for other modifications of best interest. What matters is what is right for those who lack capacity. Legislation can never specify solutions for individual cases, and trying to do so can be harmful. The Bill will ensure for the first time that no decision maker can act alone. Under the best-interests provision, there must be consultation. That is what parents, families and others have asked for, and it is now provided in legislation.

All who are consulted will have a role in saying what is in a person's best interests, and what is relevant. For example, when making a health care decision, a doctor will have to consult the family about what they think will be in the person's best interests. If there are no family or friends to consult on serious decisions about medical treatment and changes of residence, a doctor or other decision maker will have to consult an independent consultee. I shall say more about that later.

If an attorney is deciding whether to consent to medical treatment, he will have to act in close consultation with the medical team. If others are concerned that a person's best interests are not being followed, the Bill will give them a clear basis on which to make a challenge. That challenge can ultimately be taken to the Court of Protection. For the first time, no one can make such decisions on their own. They will have to consult. We should be pleased about that.

I am totally in accord with the wish of hon. Members to ensure that the lives of patients who lack capacity are valued as much as those of anyone else. That is why I am introducing legislation. As we continue our discussions, in the House of Commons and in another place, I am sure that we will touch again on these important issues.

Claire Curtis-Thomas (Labour, Crosby)

Obviously, time will elapse before cases referred to the Court of Protection are heard. Will measures be taken in that intervening time to protect the health and life of the individuals concerned, pending the court's judgment?

David Lammy (Labour, Tottenham)

The Bill specifically says that treatment should continue in those circumstances.

I have listened carefully this morning and on Tuesday afternoon to the deeply held views expressed by hon. Members. All of us are in sympathy with the aim to protect vulnerable people, and I have considered the points that have been raised. As I have outlined, the Bill works together with doctors' existing fundamental duty to preserve the life and health of their patients, and I remain of the view that the best interests assessment is an objective one—although I will continue to consult to ensure that it is as clear as it can be that that is the case.

I remind hon. Members that this is not a Bill in isolation. It works alongside our existing criminal law and the existing common law of negligence. However, I am prepared to consider the amendment tabled by the hon. Member for Daventry, as it seems that people reading the best interests clause do not automatically see it in the context of subsection (8). That is why I will continue to ensure that we have made this as objective as possible.

Ann Winterton (Conservative, Congleton)

I welcome you to the Chair, Mr. Cran. I have never served under your chairmanship before, and I hope you will be gentle with us all, although you have been a bit of a Rottweiler to date.

I do not intend to hold up the Committee for more than a few brief minutes; we have had a full debate on these issues, some of which are very contentious. I am sure that the Minister is trying to act in the best interests of the legislation, and I do not doubt his commitment and sincerity, but there are real problems in the Bill and in these amendments to clause 4, which we have not overcome.

The Minister began his winding-up speech by saying that the Bill has a protective and supportive ethos. If that is the case, it should address the issue that is central to the best interests of the patient, which is their life and health. That problem cannot be overcome even by accepting the amendment tabled by my hon. Friend the Member for Daventry, which refers to all the circumstances. That would be a step forward, although only a tiny one.

The Minister said that reasonable belief is the highest and most objective test according to the advice that he has been given. That may well be so, but when I read the subsection of clause 4 that refers to that, I thought it was rather woolly. Not being a lawyer, I am, perhaps, not the best judge of that; I am just an ordinary member of the public who happens to represent other members of the public in Parliament. However, my experience of life has led me to believe that there are great gaps between the theory of what MPs talk about in Parliament and the reality of what happens in our local communities and hospitals.

Angela Browning (Conservative, Tiverton and Honiton)

My hon. Friend will recall that in the Tuesday afternoon sitting I expanded on what we heard on Second Reading about cases of people not receiving nutrition, food and liquids in hospital. She may be interested to learn that I subsequently received a telephone call from the Royal College of Nursing in which I was told that this is now being addressed nationally as it has been recognised as a national problem.

Ann Winterton (Conservative, Congleton)

I am sure that everyone would recognise the national problem, but, coming from a family of nurses—six in all, and admittedly trained in the old-fashioned way—I find it extraordinary: they thought it was basic care to give food and hydration to patients, including elderly people who cannot feed themselves.

That brings me to my penultimate point. The Minister talked about the doctor's fundamental duty—or I think he spoke of an objective duty. The doctor's fundamental duty is to his patient. Part of that duty is not to judge quality of life. It is to treat the patient in his genuine best interest. That includes life and health and, yes, not striving officiously to keep alive when someone is dying, but we come back to the definition of treatment. I shall repeat as often as I can that food and fluids—nutrition and hydration—howsoever delivered, are not treatment. They are basic care and a human right. Unless we grasp that nettle in this Bill, the outcome will be unsatisfactory.

Tim Boswell (Conservative, Daventry)

I, too, welcome you to the Chair, Mr. Cran. We may have had both agreements and disagreements in the past, but I am sure that you will treat those with appropriate sympathy and objectivity as we proceed with these difficult matters.

I hope that it is my normal style—I think it is the style of the Committee—to begin by saying that, as has been the case since attending my first Standing Committee in 1966 as a very junior researcher, I have enjoyed the process, although I have never encountered a more serious set of issues or ones on which people have been more genuinely engaged.

It is a great privilege to have the opportunity, on behalf of the many people who lack mental capacity now or may do so in future, to tease this issue out. I am grateful to colleagues who have spoken on the matter with great passion, but also to the Minister for taking on the job of responding. It is not easy, and I hope that hon. Members will not be distressed to learn that I find I am in the middle way position between some concerns that have been expressed and the Minister's views. That is the process of parliamentary debate and there is nothing wrong with it.

I want as briefly as I may to respond to the points that have been made. To begin with the areas of common interest, we all, of course, have an interest in the life, welfare and health of the patient or the person who lacks mental capacity. That is self-evident. The question is how to bring about those things safely. Secondly, as the Minister said, many decisions are taken on such matters every day. Many of us may, either through personal or family experience, or through constituents, have become in some sense involved with such decisions.

Thirdly, things sometimes go wrong. My hon. Friends the Members for Congleton and for Tiverton and Honiton (Mrs. Browning) are right to say that there are nursing deficiencies in some cases that are inexcusable, and that those should be tackled by the professional bodies. That is not an issue between us; the issue is how we offer protection.

My final point, which is one that needs to be made, is that no one wants to contrive a situation in which

doctors, nurses or other caring persons must constantly refer to the court, or, as I think I put it on Second Reading, go up before the beak because they have acted in good faith on the basis of their interpretation of what is right and someone has differed with them about it.

Of course, it is something completely separate—for the avoidance of doubt—if someone neglects their patient or takes a casual or even an agenda-ridden decision about what to do in a particular situation and does not think about it objectively in their own lights. I begin to stray into using that word, ''objective'', and will say more about it in a moment. Also, we do not want the Court of Protection constantly to have to decide every issue. I fear that that may be implicit in the Bill. We need to tease out those elements.

I think that the overall intention, from my reading of clause 4 in conjunction with clause 5, is, loosely, that clause 4 concerns the best interests of the person who lacks mental capacity and clause 5 is, in a sense, protective of persons who have to carry out acts in respect of care or treatment of the person without mental capacity. They are both sides of the same decision-making coin, but, broadly speaking, one refers to the person without mental capacity and the other to the person providing care. We have to find that important balance. We can neither write people off into the care system on the assumption that persons are not going to care for them properly, nor can we persecute the caring or treating system for not doing exactly as we would like. We seek to bring the framework into the right alignment and get the best result we can.

I am not sure whether it helps the Committee to say that I am a little bit sceptical about subjectivity and objectivity. I think I know what I want, but I am not sure that I can produce an absolutely satisfactory position on either case. We do not want persons acting blindly with their own prejudices and, as I have suggested delicately, in certain cases on their own agenda, and taking decisions alone—without reference to other people—for a person without capacity. In such cases, the deed is done, the person is dead, the life has come to an end and nothing can be done about it. That is unacceptable. Indeed, it is the last thing any Committee member wants, and many representations to us have been about that.

In looking for objectivity there is a point at which, logically, it is not always easy to see. The Minister has already suggested, in responding to my amendment that heads this group, that nobody is omniscient and nobody can, for example, take account of something that took place in Australia 20 years ago, which might be relevant to a decision that a person could take. I understand the difficulty with my amendment, but it is no good somebody saying, ''Well, this person does not have long to go and we'll do the necessary now. That's how I feel about it and I take no notice of anybody.'' I am sure that that has happened in the past under the common law, and it will probably happen whatever we do in legislation now, although it is not desirable under any circumstances.

We need, as the Minister mentioned, to produce the highest possible level of objectivity that we can at any

one time, whereby people have to run their decisions or thoughts about a situation—which will typically, although not always, be developed over time—by someone else. That is, perhaps, less easy after trauma than where there is progressive decline. The person will not be able to make the decision on their own.

David Lammy (Labour, Tottenham)

The hon. Gentleman talks about the highest possible standard of objectivity. Does he agree that to make such an objective assessment people must have information? The requirement under the Bill provides, for the first time, for people to consult and take into account past wishes, feelings and beliefs, thereby giving the clinician the information on which to base that objective assessment.

Tim Boswell (Conservative, Daventry)

I nearly entirely agree with the Minister. If I were picking differences with what he said, I would say that that information might not be comprehensive. However, until the legislation appeared we did not even have a framework for requiring that input. The best information that mankind can find that is relevant to the circumstances—to borrow a phrase from the Bill—is helpful. I think we are beginning to say that nobody should be taking these decisions arbitrarily, but I do not want to go down that road and introduce another concept.

I am sure that my hon. Friends the Members for Tiverton and Honiton and for Congleton, and the hon. Member for Crosby, are right to express concerns about something that is felt throughout the Committee: this Bill is to raise the hurdles to ensure that nothing is done casually or arbitrarily.

I want briefly to go through my understanding almost as a checklist, so that the Minister or other hon. Members may intervene if I have got it wrong. The process of causation is as follows. First, if a person has mental capacity, the Bill does not apply and they make their own decisions: if they do not want medical treatment, they indicate that. Further, they can indicate their wishes by an advance decision, if a circumstance arises where they lack capacity. That falls under another part of the Bill and we will return to it.

Secondly, if a person lacks capacity, which is defined in clause 2 and which we debated, best interest takes over as an overriding principle. The Minister spoke to that. I suppose that it comes out of common law and is probably quite a good test—it is difficult to see how we can have a better one. There is an issue, which my hon. Friends have arguedargued with great passion, about whether it is necessary to have a separate requirement for a person's life and health. I do not believe that anyone in Committee would dissent for a moment and say that life and health are not important; the issue is whether one includes a separate tiret that requires the court ultimately to consider the matter, and all the persons taking decisions up to that stage to have considered it too.

David Lammy (Labour, Tottenham)

The hon. Gentleman is right to talk about court protection, but he knows that there are many preceding mechanisms, including the patient advice and liaison service in our hospitals; the independent complaints and advocacy service for people who want to make a complaint in the case of a dispute between doctor, family and hospital; the health care inspectorate, which deals with complaints; and the court as the final arbiter.

Tim Boswell (Conservative, Daventry)

That is correct. The debate is about having the right number of safeguards, not to make decision-making impossible—because we all agree implicitly that decisions eventually have to be taken—but to ensure that decisions are not taken without due process and proper consideration of all the relevant information. The Minister is right to remind the Committee that information is central.

As one goes through the process, the principle of best interest takes over. There is a continuing discussion in Committee about whether it is necessary to specify life and health as basic to welfare. My only reservation about the impassioned comments that have been made by hon. Members on both sides of the Committee is that applying more tests might not enhance protection. The issue is what the best level of protection will be.

We also have to consider reasonableness—formally the subject of my amendment—and whether it is important. I repeat that we want to avoid a casual or arbitrary view being taken or, indeed, a view with a particularly loaded agenda. If someone believes that older people should be bumped off when they are no longer of use to society and he or she happens to be in the medical profession—I do not regard that as a typical view by any means—he or she should clearly not be able to prosecute that opinion in his or her medical practice.

We consider reasonableness balanced against the fact that one cannot possibly take all circumstances into account. Otherwise we get into chaos theory and how butterflies waving their wings in Brazil might affect the whole world. One cannot do that, but one has to make a good effort. The inference rightly drawn by my hon. Friends the Members for Tiverton and Honiton and for Congleton and the hon. Member for Crosby is that, sometimes in the past, procedures have not gone as well as they should have and decisions have been taken in a hurry. As my hon. Friend the Member for Congleton rightly reminded the Committee, the decisions are about life and death and are irreversible. That, incidentally, is one of my arguments against the death penalty: one cannot reverse it. I will not, however, stray into that area.

George Howarth (Labour, Knowsley North and Sefton East)

I hesitated to intervene in a balanced and thoughtful speech, but does the hon. Gentleman agree that a difficulty in placing life and health in such a central position is that when a physician has to make a judgment, for example, to feed someone via an intrusive process that might be distressing, they might feel obliged to do it even though it might not be in the best interests of the patient?

Tim Boswell (Conservative, Daventry)

Clearly, everyone is considering the best interests of the patient. The hon. Gentleman is

right to remind the Committee that, without taking a careless approach or pushing a particular agenda, a clinician might well have a genuine concern about the patient's degree of suffering and whether there is any point in the treatment. None of us, wherever we stand on the issue, should expect that person to have to go through the rigour of court process if he or she has acted in good faith and has gone through the necessary procedures. I shall come to that in a moment.

Ann Winterton (Conservative, Congleton)

Before my hon. Friend moves away from that point, may I add a rider? In the case that the hon. Member for Knowsley, North and Sefton, East has quoted, it is the doctor's responsibility to act in the best interests of his patient. If feeding through a tube or by other means is burdensome to the patient, the doctor is right to take a judgment not to do it. That is within his responsibility. Nobody would argue with that, including relatives. If the patient will be distressed or find the treatment burdensome, the doctor should not proceed.

Tim Boswell (Conservative, Daventry)

That is helpful. However, my hon. Friend's gloss shifts the argument. We can debate what constitutes life and welfare, or whether welfare is distinct from life because it can be distressing to prolong life, but the argument has to be resolved and somebody has to resolve it. In a sense the Minister is right, at least in intention. We are trying to establish a test that is pretty objective. Our aim is to ensure that clinicians make that test on objective grounds, not on the basis of their own predilections or views at the time.

That brings us to what we might term issues of conflict, which we are to debate later under clause 5. However, under the present group of amendments, we have not discussed as explicitly as we might have the situation in which two persons have care of the patient, be they family members, attorneys or clinicians, and they have differing views. They may even have different specific functions to discharge, which could cause them to be antagonistic. Somebody at home might want to do something, but the clinician might argue differently from the hospital. I have not synthesised a particular case, but the Minister can understand what I am driving at. Clearly, there is a duty on both persons.

David Lammy (Labour, Tottenham)

The hon. Gentleman is right to say that one can never account for the differing views that people take in a given situation. However, does he agree that we should take comfort in the fact that, because of the requirement to consult, because of the framework that the legislation creates, and because the draft code gives us the ability to lay out how we should make that assessment, there is likely to be less disagreement now, because people will not be making decisions in isolated silos?

Tim Boswell (Conservative, Daventry)

I agree, and that is the essential point. If we could add to the Minister's rubric about information the other and equal rubric about consultation, I would be very happy. The consultation is set out clearly in the clause, to which I have no further amendments. It is essential that there be conferences; that is good practice and already happens in many cases. However, I must make the point that, especially if they have to make an objective

test, persons may have genuine differences of opinion about what should be done.

I come to the ultimate arbiter, the Court of Protection. If it is impossible for persons to agree on a course of action, it will have to be decided by the court. The Minister will be aware of a recent case involving a minor that had to be determined by a court, albeit not the Court of Protection. Of course the court will apply objective tests using their legal expertise; they are used to addressing such matters and they will understand the Bill better than any of us might. However, in the end they too have to arrive at their own judgment. They will act objectively, but the judgment will be one of individuals. One cannot escape the fact that if the person lacks mental capacity, someone has to be a decision maker in their case. The Minister nods. In that sense, the argument about subjectivity and objectivity falls. We are trying to get everybody to act, based on all the information that they can get and with all the appropriate consultation within the framework established by the clause, to make the proper decision in the best interests of a person who lacks capacity. That is our shared objective.

The Minister is nearly there, but it is entirely right of us to tease out the issue—that is an important parliamentary function. The Minister has indicated that his door continues to be open to the representations from the various agencies, and I welcome that. I hope—although he has not said it—that that offer embraces members of the Committee, who may want to come and see him severally or collectively. He is nodding; that seems to be self-evident. I think that the whole Committee agrees that we need to get this provision absolutely right.

I have to admit that I did not understand the Minister's position on my amendment. He indicated sympathy with it, but I am not sure whether he accepts it now, or whether he would like me to withdraw it so that he can reflect further.

David Lammy (Labour, Tottenham)

I would like the hon. Gentleman to withdraw it.

Tim Boswell (Conservative, Daventry)

The Minister would like me to withdraw it. That was the impression that I received. [Interruption.]

David Lammy (Labour, Tottenham)

I am considering it.

Tim Boswell (Conservative, Daventry)

The hon. Gentleman will consider it. I am grateful.

James Cran (Conservative, Beverley and Holderness)

Order. I do not want sedentary interventions, please.

Tim Boswell (Conservative, Daventry)

Perhaps it will be helpful if I ask the Minister to intervene to advise me on what he would like me to do with the amendment. I am anxious solely to assist him and the Committee.

David Lammy (Labour, Tottenham)

I would like the hon. Gentleman to withdraw the amendment. I was indicating that I continue to consider the provision.

Tim Boswell (Conservative, Daventry)

I am grateful to the Minister. That is how I had construed his comments; I think that one of my colleagues understood him to be accepting the amendment. I am not proud; I do not really mind. I

think that we are trying to facilitate the discussion, which is ongoing and has not been closed. The Minister, and every member of the Committee, knows that it is important to get the measure right. In that spirit, I shall seek the leave of the Committee to withdraw my amendment, and we can think about it all again long and hard before coming to a final conclusion.

Claire Curtis-Thomas (Labour, Crosby)

May I take this opportunity to welcome you—perhaps less fulsomely than others—to the Chair this morning, Mr. Cran? Taking your advice, I am now on my feet and looking forward to speaking.

I have heard what the Minister has said in response to the amendments, and my interventions have shown that I am not satisfied with the response. I have tried to consider what he has to say in detail, but that is difficult when my overriding view is that we should put objective measures on health and life into the Bill. That is essential. The arguments about best interest are the most important elements of the Bill as far as I am concerned. All the discussions that follow will reflect the decisions that we make in the case of best interests. All our opportunity for manoeuvre will be severely curtailed unless we get it right.

My primary concern about the position in clause 4 is that it is thought to give priority to those who represent an incapacitated person. It is important that we acknowledge such people and give them an opportunity to contribute, but they must be equal partners, not first among partners. Historically, doctors have been able to decide what is in the best interests of the patient, and in some cases, to which we will refer later, those decisions have been taken to court. However, that has not happened in many cases, showing that, by and large, people defer to a doctor when he makes a judgment about a person who is incapacitated. That has now changed, and rightly so, to bring the person who is incapacitated into play even though they cannot verbally articulate what they need at the time. However, to take a doctor's judgment totally out of that environment is absolutely wrong.

Let me give an example that illustrates my point. So far, we have been concerned about a person's wishes on the assumption that they are wishes that would result in the person's life being terminated, because he or she is a most invidious position—one that they had previously said they would find intolerable and so did not wish to be supported in. But there will also be cases in which an individual who is incapacitated has expressed a wish that, in that situation, they be treated. That person may have a document that says, ''I wish to be treated in these circumstances.'' At that point, a doctor really has no role as far as clause 4 is concerned; he does not have equal input.

I have a good example. When my mother came to the end of her life, she had a blocked bowel. She had previously told me that she would want to be kept alive, because she was a grandmother and mother and enjoyed her life, irrespective of how incapacitated she

was. However, she was now unconscious. I went to the doctor and said, ''I want you to operate on my mother,'' and he said, ''I won't do that, because I don't think it's in the best interests of her well-being, her health and her life.'' I said, ''Okay, fine,'' because at that point I wanted to know what was in her best interests—not what she wanted, because what she wanted then became subservient to what was in the best interests of her health and life. I could not make that judgment; I did not know.

We talk of decisions going to the Court of Protection, but there is no time to do that if someone has a blocked bowel; the decision has to be made right then. There is no opportunity to go to the court—one has to act immediately. The Minister said that all measures will be taken to make sure that a person has enduring health, but in my mother's case, because she would have died of that condition had she not been operated on, the operation would have had to go ahead. Such circumstances do arise. The clause does not relate only to people who want to die because they have an onerous burden; it also relates to people who say that, in certain circumstances, they want whatever assistance is possible—they want what others get.

I am deeply concerned about the omission from the Bill of objective measures of life and health. It is vital that we put them in because, in the round, and in the objectivity that will finally come to bear in some court, health and life are important. They need to be mentioned in the Bill.

Tim Boswell (Conservative, Daventry)

Does the hon. Lady agree that although the two are not the same, the concepts of life and health ought to be embraced in any sensible approach to best interests? In other words, no doctor or other person could exclude them from the consideration, even if there might genuinely be a difference of view on what they constituted.

Claire Curtis-Thomas (Labour, Crosby)

I could not agree more with the hon. Gentleman. If we are talking about so much transparent, common sense, why do we not include those objective measures of life and health in the clause? We are talking about best interests, to which and life and health seem fundamental, so why is that not stated explicitly? Why does it become an ambiguity? Let us put the terms in the Bill.

I was delighted to hear the Minister say this morning that he would consider the matter further. I hope that he will think about what I have said, and come to a decision that meets hon. Members' concerns.

George Howarth (Labour, Knowsley North and Sefton East)

I too welcome you to the Chair, Mr. Cran. You have been indulgent, particularly with our lengthy interventions.

My hon. Friend and the hon. Member for Congleton believe that including the words ''life and health'' in the clause would provide additional protection. I believe that by putting those tests in the clause explicitly, we would be second-guessing all the circumstances in every case to an extent that would impose limits on what was in the best interests of the patient.

In Tuesday's debate, I was very taken with the distinction that the hon. Member for Tiverton and Honiton drew between a process of hydration, which might require some medical procedures, and the kind act of wetting somebody's lips when that is clearly helpful. In the end, there needs to be some sense of what my hon. Friend the Minister referred to as a process in which people are expected to behave in a reasonable manner towards others, and at the same time a sense of the compulsion that certain things will happen at certain times. The hon. Lady drew a distinction between certain procedures, and acts of kindness.

Angela Browning (Conservative, Tiverton and Honiton)

I did so in the context of someone who is dying—where the body is shutting down and the swallowing mechanism has gone. That often happens within 24 or 48 hours of death.

George Howarth (Labour, Knowsley North and Sefton East)

The hon. Lady is right to draw my attention to the context. However, I still think that we are talking about an act of common decency that people would expect not only from a close relative, but from a nurse or anybody else who happened to be in attendance at the time. If somebody who was professionally charged with the care of such people were not to do that, that ought to be an act of negligence; my hon. Friend the Minister referred to that as a potential legal matter.

It is right that we raise and debate such cases, particularly in the context of clause 4, because it is illuminating and enormously helpful when we start to bring such examples into play. My fear is that if we are too explicit, that closes off all sorts of courses of action because people then say, ''Well, hang on, if I do this, which may be considered in other contexts as an act of kindness, where do I stand in specific relation to the legal requirement in the Act?''

Tim Boswell (Conservative, Daventry)

I am in sympathy with much of what the hon. Gentleman says. Does he agree that the one thing that we all want to avoid is any kind of box-ticking approach, whereby people simply say, ''We've done this, we've done that, so we've met life and we've met health,'' as if that discharged the whole obligation to the best interests of the person concerned?

George Howarth (Labour, Knowsley North and Sefton East)

I am grateful to the hon. Gentleman for that helpful description, and I agree with him. If people such as doctors—and sometimes nurses—who have to take those decisions professionally feel that there is a kind of tick-box process to go through before they can prove that they have been objective, that limits their scope to be kind and to do the right thing in the right circumstances, as the hon. Member for Tiverton and Honiton movingly described, and in the context that she was anxious to draw me back to.

Something else slightly disturbs me; these are intense human dilemmas. I will give an example of a case I know about very well, not because it will help us but because it shows what a muddy area this is. Some years ago a woman was in the fourth month of her pregnancy, and there were astonishing complications, which meant that she was not competent to make a decision. As happens all the time, a choice arose and it was left to the father to decide: should the pregnancy

be terminated, in which case the mother would be healthy, or should nature be allowed to take its course, in which case both mother and child would probably die?

I do not use that example because it illustrates any particular point that we are trying to make now, but it does tell us about the complex choices that people often have to make. Hon. Members might rightly say, ''Well, obviously in those circumstances there was only one choice.'' Maybe that was the case, but that decision will haunt those people for the rest of their lives. This is an incredibly complex area. I know that that decision was made, and I sure that all the right considerations had been made and it was a proper decision—but what would have happened if the law had tried to specify what objective measures were supposed to have been brought into play when the decision was made? It might just have made that difficult situation even harder for those involved.

Ann Winterton (Conservative, Congleton)

May I reassure the hon. Gentleman that in the circumstances that he described there is always a presumption in nursing and medical circles that the life of the mother is paramount?

George Howarth (Labour, Knowsley North and Sefton East)

I do understand that, and I am grateful to the hon. Lady for reminding me. I was not trying to say that there was a presumption either way. I merely say that for those involved, it is an incredibly tricky set of circumstances to negotiate.

Claire Curtis-Thomas (Labour, Crosby)

In my contributions today and in my arguments to support the amendments to clause 4 that I have proposed, I have not sought to tick a box. I have not sought to specify a piece of paper saying ''best wishes'', with a box next to that that needs to be ticked once those have been taken into account, and to add ''life and health'' to that. I do not think that an assessment of life and health can be merely allocated to a small tick in a box. I do not think that one can do that.

However, a court needs to give equal credence to the impact of any measures that are to be taken in relation to the person's incapacity, which includes comments about their impact on the person's life and health. It is important to the overall assessment that those measures are given equal validity and status. That is all. This is not about a ticked box; it is not a simple thing.

George Howarth (Labour, Knowsley North and Sefton East)

Obviously, my hon. Friend and I are on different sides of this argument. I regret that, because in many other contexts she and I are good friends; we often share the same point of view and concerns. I recognise the absolute sincerity with which she approaches this subject and the fact that she brings a lot of personal experience to the argument. Clearly, that informs the way in which she approaches it.

I would not for one minute suggest that my hon. Friend is talking about a tick-box procedure. That is not what I meant, or what the hon. Member for Daventry was talking about. I think that he was saying that potentially, that is the end of this process, and I agree with him.

Mr. Boswell indicated assent.

George Howarth (Labour, Knowsley North and Sefton East)

I know that that is not what my hon. Friend is arguing for. However, if the Bill specifies certain things, those who have to respond to those legal requirements will then go through a process of saying, ''Right, what are the objective measures that I am supposed to have taken. Are they this? Yes. If it's this, I've done it. Are they that? Yes. If it's that, I've done it.'' The hon. Gentleman and I may have simplified that process by so describing it, but that is the character of what will take place.

David Lammy (Labour, Tottenham)

Does my hon. Friend agree that we want to ensure that any wording does not have a perverse effect, such as to allow those who are concerned about the preservation of life to take one view but to allow others to take a different view about the value of that particular life?

George Howarth (Labour, Knowsley North and Sefton East)

I am glad that my hon. Friend made that intervention. His words stand, and I agree with him.

I conclude by saying that the tone of this debate has been proper, in the sense that enormous sensitivities are involved. People have to make terrible decisions about close family members who are incapacitated, and some people have to make such decisions as professionals. We all know that that is what we are talking about, and the sensitivity of this debate has been very high.

We all want to get to the same place; the question is about how we get there. In that context, my hon. Friend the Minister's commitment to remaining open-minded about how that can be achieved is to be welcomed.

Tim Boswell (Conservative, Daventry)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 15, in

clause 4, page 3, line 1, leave out subsection (4).

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss amendment No. 92, in

clause 4, page 3, line 1, leave out from 'must' to 'the' and insert

'take steps to ensure that he permits and encourage'.

Tim Boswell (Conservative, Daventry)

I assure the Committee that on this amendment I do not intend to open a debate as long as the previous one. This is a classic probing amendment, because it would delete subsection (4), whereas, as the Minister will remember from earlier debates, that is the last thing I want to do. Self-evidently, it is good practice that people who care should, as far as is reasonably practical, permit and encourage the participation of the person involved. I interpret the word ''participation'' in a lay sense, and I need the Minister's assistance in probing what it means in a legal sense. There is a difficult interface with the judgment to be made about whether a person lacks capacity.

We have already discussed the idea that assessing capacity is a functional test, and that a person lacking capacity in one respect may have it in another. We are now in a grey area, in which a person might almost have capacity, and subsection (4) would invite them to

participate in decisions. However, the status of that participation is not clear. The Minister is nodding; I am glad that I tabled the amendment so that we could probe the issue. The Minister is inviting the person to participate, but not to be the decision maker, because by definition, they lack capacity. However, if they are able to participate, it is worth asking whether they have the capacity to make the decision and whether they should make it, with whatever assistance is appropriate.

We have discussed that already. For example, we had a discussion about problems in clause 3(1)(d), which is about the inability to communicate decisions. Under clause 4, people who care are asked to get the person cared for to join in making a decision. They may have just a communication problem. However, at some point a decision has to be made about whether the person who cares should be the decider, or whether the person being cared for should make the decision, with assistance. Who would take the lead? We need an explanation.

I may be paving the way for the hon. Member for Chesterfield (Paul Holmes), who will want to speak to his amendment. In no sense am I signalling to the Committee. The Minister has been kind enough to acknowledge that I tabled an amendment about the person's feelings even when they lack capacity. We are not trying to shut people out or make an advance decision that they will never have capacity again. We are saying that we need to consider what constitutes participation in a decision. Under the clause, the person would not, by definition, take that decision. We need to consider what would be a reasonable effort by the decision maker to involve the person. We need to see what was in the Minister's and the draftsmen's minds in making the provision. We do not want to subvert it, but to ask for an explanation of it.

Paul Holmes (Liberal Democrat, Chesterfield)

I, too, welcome you to the Chair, Mr. Cran. I have served in other Committees under your chairmanship, and I welcome your judicious application of the Rottweiler tendency, which keeps Committees on the straight and narrow, and making progress.

I am am speaking to amendment No. 92, tabled in the name of my hon. Friend the Member for Sutton and Cheam (Mr. Burstow) and myself. I appreciate what the hon. Member for Daventry said about trying to tease out the Minister's thinking, but our amendment is quite a reversal of his amendment, because he would remove subsection (4), while I seek to strengthen it considerably. It says that the person about whom decisions are being taken should be encouraged to participate

''so far as reasonably practicable.

and that others should

''permit and encourage the person''

to get involved.

That seems reasonable at face value, but I fear that it could offer a get-out clause, because the person making the determination of what is in a person's best interests might set too low a threshold for what is reasonable and practicable. That might happen for various reasons. It could be based on professional and

personal convenience when taking decisions in a busy pressurised setting, or on a preconceived and outdated view of what capacity constitutes, and what people are capable of.

Amendment No. 92 would strengthen the obligation on the person acting in the best interests of another to take all steps, and do everything possible, to ensure that they are supported in the decision-making process, rather than limiting that expectation. It would establish the importance of the individual's views, secure their maximum participation and recognise that people have an important contribution to make in the process of making decisions about their own life.

The code of practice will give examples of what steps could be taken to ensure the participation of the person involved, but the obligation to do so should not be restricted in the Bill. The starting point should be to maximise the participation of the individual concerned, but the current wording—''reasonably practicable''—runs the risk of allowing someone to circumvent the overriding requirement to support the person and endeavour to encourage them to participate in decisions about their own life. That is particularly important for people with learning difficulties, because lack of capacity should be regarded as a situation that often could, or should, be improved with appropriate support, rather than as something that simply exists, which people have to get round by appointing somebody else to take decisions.

Lack of capacity should not just be accepted with a metaphorical shrug of the shoulders as something that cannot be altered. As we now know, society's attitude has progressed so far that what was often perceived as a lack of capacity can often be overcome and people can, with the appropriate support from independent advocacy, take part in many decisions from which, until quite recent times, they would have been excluded.

David Lammy (Labour, Tottenham)

It is important—as the hon. Member for Daventry indicated—that people who lack capacity to make a decision are enabled

''to participate, as fully as possible in any act done''

or decision made for them. Although I accept that the principle set out in clause 1(3), which concerns taking all practicable steps to support the person in making his or her own decision, embraces similar ideas, subsection (4) is about involving the person as part of the ''best interests'' assessment.

We do not want to cut the person with lack of capacity out of the decision-making process, and amendment No. 15 could have that effect, although I hear what the hon. Member for Daventry says about it being a probing amendment to ascertain what ''reasonably practicable'' means. The code of practice will set out further guidance for professionals on supporting people who make their own decisions in such judgments—for example, in overcoming communications difficulties, explaining things in simple language and overcoming initial resistance. We discussed that on Tuesday. I refer the hon. Gentleman to the draft code.

The Bill is also clear that capacity is situation-specific. Just because a person lacks the capacity to make one decision does not mean he lacks the capacity to make another. That means people can continue making decisions in the areas where they have capacity, rather than being given a blanket label of ''incapable''.

However, regarding Amendment No. 92, there will always be cases where, for urgent or non-emergency reasons, it would be inappropriate and not in a person's best interests to delay acting, which is why the words ''reasonably practicable'' are in clause 4(4). It is also unrealistic to expect all people affected by the Bill to be able to participate in decisions. The Bill applies to people in a coma, as well as to those who are seriously distressed or who need urgent care. While in some cases it would be possible to wait until the person is capable of making the decision themselves, in other cases it clearly would not.

The use of the phrase ''reasonably practicable'' is a pragmatic way to take account of such emergency circumstances, while maintaining the general requirement to follow the best-interest checklist wherever possible. Note also that ''reasonably'' imports the notion of objectivity, which, as we said this morning, the English common law system knows all too well. That means that any personal or professional convenience—which the hon. Gentleman suggested might arise—could not meet that requirement. Therefore I hope that he will be able to withdraw his amendment.

Tim Boswell (Conservative, Daventry)

I am grateful to the Minister for his explanation. I am not sure it has taken us a great deal further in relation to my amendment, but as it has identified this subject as of great importance in the territory of the code, we can take it as paving the way for that.

When we are defining whether a person has capacity, we need to be clear that there is a distinction at any one time in relation to any one act. We must not muddy that decision. People, through their loss of capacity, do not become un-persons, and it is right that, wherever possible, we should take into account their decision. What we cannot do, as the Minister needs to remind himself, is to put them in the position of being substitute decision makers in their own case when they do lack capacity, because somebody else has to make that decision. As we have already exhaustively explained, that decision would be taken according to a different criterion—the best interests—and would be different from a subjective decision made by the patient themselves as to whether they had capacity. I do not think that it is necessary to detain the Committee on this subject, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Angela Browning (Conservative, Tiverton and Honiton)

I beg to move amendment No. 136, in

clause 4, page 3, line 16, at end insert—

'(e) an independent advocate if (a) to (d) do not apply.'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss the following amendments: No. 95, in

clause 5, page 3, line 35, at end insert

'and P has sought the involvement of an independent advocate where the matter to be determined is one falling within section 34.'.

No. 96, in

clause 5, page 3, line 43, at end add—

'(5) Section 5 does not authorise an act in connection with serious medical treatment or a change in P's accommodation to a hospital or care home unless P receives advice from an independent advocate in accordance with section 34.'.

Angela Browning (Conservative, Tiverton and Honiton)

I, too, welcome the fact that you are chairing the Committee, Mr. Cran. I do not see you as a Rottweiler—I see you more as a Golden Labrador, always pleased to see us stand up and make a contribution to the debate.

I feel that there is an omission in clause 5, and my amendment would add a paragraph (e) to ensure that there would be

''an independent advocate if (a) to (d) do not apply.''

I have a large group of people in particular in mind. Many adults with learning disabilities or autistic spectrum disorders still live at home with their parents. Some of those people are now reaching middle age, or even old age, and many of them remain at home, often without a proper care package or care plan.

We think that in an ideal world, everyone with a disability who is not engaged in work will have their own named social worker or community psychiatric nurse, and a care plan. In practice, however, that does not happen. We, as Members of Parliament, come across many such cases. We know that such people often remain living with increasingly elderly parents, and that when those parents are no longer able to care for them—they may have died, or need to go into care themselves—the person with a disability suddenly comes to the attention of the social services.

The social services department may or may not already know about that person and have an ongoing understanding of their cases, but at such points of crisis, someone from social services suddenly has to start taking an interest in what is to happen to them. The choice is usually about care, and particularly about housing.

Tim Boswell (Conservative, Daventry)

Does my hon. Friend not agree that even before they have left the parental home, there may be a conflict of interest between the parents and the person for whom they care? The last thing that I want to suggest is that parents do not care for their children—they do. But we should remember that they have different interests and that another person may sometimes be needed to act as broker.

Angela Browning (Conservative, Tiverton and Honiton)

Yes, that is true. However, that is not necessarily the scenario that I envisaged when tabling the amendment. We understand the need to improve and encourage independent living, which is not necessarily with parents, however it is supported. However, the reality is that a generation of older adults with learning disabilities still live with their parents and when a crisis comes—the parent has to go

to hospital or even dies—social services becomes involved.

Subsection (6)(b) refers to

''anyone engaged in caring for the person or interested in his welfare''.

At the point of crisis, therefore, it could be deemed that a social worker, previously or newly involved in P's care, is the person mentioned in paragraph (b). We touched on that point briefly in relation to a previous clause. It is not always appropriate for those in the pay of a local authority or other statutory agency to take such decisions. Such persons have a responsibility to their employer and have to work within the framework of resources that the employer says may or may not be available. That is why I ask for an independent advocate. At that point, it would be in P's interests. We have all seen the most inappropriate placements, made solely because the decision is made by social services working to a framework of its own, and not by those who would argue the case for P.

Tom Clarke (Labour, Coatbridge and Chryston)

I do not wish to break the main thread of the hon. Lady's argument, but does she agree that a conflict of interests is possible not only between P, whom she clearly supports, and the social worker? If the parents and the social worker agree, but their view is not consistent with what P wants, that would be an even more major conflict of interests.

Angela Browning (Conservative, Tiverton and Honiton)

That is right. We are talking about P's best interests, which is why we must bring someone independent into the decision-making equation. For example, a social services department that identifies a person with an autistic spectrum disorder might think it appropriate—I would not disagree—to encourage P to move into independent living, away from the parents. However, social services may be unable to put in place a support package and instead just move P from the parents' home into a block of flats to live with others with similar disabilities Particularly for people with autistic spectrum disorders, one of the biggest problems is social isolation and an inability to communicate with the people around them. However, they can cope if they have a package of care attached to independent living arrangements. The case that I am using as an example shows that if the parents or the social worker decided with the person who lacked capacity that that was the best option, but then failed, because of resource constraints, to put in place an appropriate package to support that person living independently in that flat, it would cause huge long-term problems. That is why I am worried about what I see as an omission in this section.

I am very concerned about the involvement of the social worker. I have a high regard for social workers—they do sterling work—but they have to act within a framework set by their employers and what they offer their clients is often based on what the employers tell them they can offer, rather than on an objective analysis of what is in the best interests of a given client at a given moment. The Joint Committee touched on that problem when it considered the matter. We must not give social workers a charter to deliver what they have available, rather than what is needed.

Tim Boswell (Conservative, Daventry)

Does my hon. Friend agree that, because there are specific duties in the Bill, including the negligence clause, social workers could be put in a difficult position, having at the same time a legal obligation to follow the instructions of their employer and a legal duty to the person for whom they are caring? The two might conflict and, they unable to resolve the dilemma, they might find themselves in court being prosecuted for something that they tried to do to balance those interests.

Angela Browning (Conservative, Tiverton and Honiton)

Indeed, and we see more and more cases coming to court, certainly in relation to autistic spectrum disorders, due either to a refusal to provide an appropriate package or to the provision of a inappropriate package to the detriment of P. Will the Minister consider the matter carefully? I am sure that the problem is due to an omission, but that will not satisfy the concerns that were expressed in the scrutiny Committee when we discussed the matter and took evidence.

Paul Holmes (Liberal Democrat, Chesterfield)

I shall speak specifically to amendments Nos. 95 and 96, but I offer full support to all that has just been said by the hon. Member for Tiverton and Honiton about amendment No. 136, to which I have put my name.

Amendments Nos. 95 and 96 reflect the concerns of the Making Decisions Alliance, which believes that there are benefits in setting in statute a clear definition of a protective act. One of those benefits is that statute can specify which matters fall outside the scope of the protective act and what conditions should be attached to it. The alliance fears that the Bill does not contain enough procedural safeguards for the use of the protective act and that clause 5 does not adequately define the scope of a protective act or seek to impose any limitations on it. The aim of the amendments, which relate to clause 5 but tie in with our discussion in relation to amendment No. 136 to clause 4, is to ensure that the concept and the scope of the protective act is better defined, and for the protective act to be more circumscribed.

The purpose of the amendments is to provide an explicit link to the safeguards that are already provided in clause 34. As clause 34 sets out the circumstances in which decisions under a protective act should be subject to the input of an independent consultee, those circumstances should be explicitly referred to in clause 5, as proposed in amendments Nos. 95 and 96 and, in part, in amendment No. 136 to clause 4. In order to strengthen and circumscribe the role of the protective act, we wish to tie in the reference to independent advocacy to the independent consultees, who are mentioned in clause 34 but not specifically referred to in clauses 4 and 5.

Tim Boswell (Conservative, Daventry)

I am grateful to my hon. Friend the Member for Tiverton and Honiton for raising the issue, and to the hon. Member for Chesterfield. To respond to him first, there seems to me to be an argument for paving our way into the later clauses, which make provision for an independent consultee in relation to really serious decisions. I am sure that the Minister will explain that.

My hon. Friend has made a plea for widening the remit of the independent consultee or independent advocate, which clearly implies potential commitment of greater resources. We need to be aware of that and must discuss at the appropriate point. I do not have an open cheque book for the Opposition, and I do not expect the Minister to have one either.

David Lammy (Labour, Tottenham)

I am grateful.

Tim Boswell (Conservative, Daventry)

Perhaps the hon. Gentleman is a shadow Chief Secretary to the Treasury in the making. Of course we must have regard to resources. Perhaps I may caricature Ministers' stance on this—not unkindly, I hope—as an abiding fear that if we begin to expect advocacy for everything, we shall need a very large cheque book. It will be possible for every decision—such as whether breakfast should be Shredded Wheat or Weetabix, to take it to an absurd level—to be taken up by right with an independent advocate. None the less, although I do not want to put words in the Minister's mouth, I think we all agree that my hon. Friend has drawn attention to some real issues.

Angela Browning (Conservative, Tiverton and Honiton)

I want to clarify that paragraph (e), which would be inserted under my amendment, would apply only if paragraphs (a) to (d) did not apply. I am not looking for independent advocacy in every case; I simply want it if the other elements are not present.

Tim Boswell (Conservative, Daventry)

My hon. Friend is right to state that reservation. We are feeling our way through a difficult field. We want the persons concerned to have access to independent advocacy when that is appropriate and no one else is available. We do not want decisions to be taken by persons who have a conflict of interests, even if that is caused by a perfectly proper factor such as a social services resources agenda, as though those decisions were definitive, objective and solely in the best interest of the person concerned.

Paul Holmes (Liberal Democrat, Chesterfield)

I remember a debate two or three years ago about independent advocacy and resources when ''Valuing People'' was first being discussed. In the context of ''Valuing People'' and the Bill, does the hon. Gentleman agree that it is all very well making the right noises about independent advocacy, but if the resources to ensure provision where it is needed are not provided, those are just hollow words? We must deliver on what we say.

Tim Boswell (Conservative, Daventry)

I have much sympathy with what the hon. Gentleman has said. We have a delicate balance to achieve. On one hand we must provide viable and effective independent advocacy where there is a clear need for it. On the other hand, we cannot permit unlimited advocacy for everyone, which would have resource implications and dilute the Bill's impact.

Tom Clarke (Labour, Coatbridge and Chryston)

Both the hon. Member for Tiverton and Honiton and the hon. Member for Chesterfield touched on a current topic. They may recall that following the passing of my Disabled Persons (Services, Consultation and Representation) Act 1986, which had advocacy at its heart, Mrs. Thatcher devised a means of dealing with questions of resources by responding—until she ceased to be Prime Minister—with the words ''when resources allow.'' Perhaps at the least we can make

commitments. The Minister will no doubt take on board the expression ''when resources allow'', but the issue of advocacy will not go away.

Tim Boswell (Conservative, Daventry)

The right hon. Gentleman is most feline putting an elegant case to the Minister and trying to help him. We all understand the ground rules. If we are honest, we—certainly those of us who worked on ''Valuing People''—understand that it is one thing to say what we should have, but another to deliver. It is incumbent on Ministers to provide the best possible framework, so that the measure works in those cases in which it needs to.

To return to the point that I was making when the right hon. Gentleman interrupted me, we should not use any advocacy provision to dilute the importance of the decisions that persons with care should be taking for a person. It does not absolve them of their interest; there is no point in their shuffling it off on to somebody else. That is an important consideration. We should not make the provision a devalued currency that is open to be used for the kind of trivial decisions that I caricatured a moment ago; on the other hand, we should not rule out the possibility of making provision for advocacy where it is really needed. The Minister has already conceded, in later clauses, the principle about independent consultees, and I think that we will return to these matters, but it would help if he could give us a working document or text as to where he has got to with this sensitive and important area.

David Lammy (Labour, Tottenham)

I thank the hon. Members for Sutton and Cheam and for Tiverton and Honiton for raising the issue of independent consultees and advocacy. I will first willconsider the amendments tabled by the hon. Member for Sutton and Cheam, which would more closely link the involvement of independent consultees—or advocates, as he would call them—with clause 5. I know that his intention is to make absolutely sure that independent consultees are involved in decisions, and that that is flagged up at an early stage in relation to the important defence in clause 5, which deals with acts in connection with care.

We agree that the involvement of independent consultees is important, which is why we have created the new safeguard in response to concerns that were raised during pre-legislative scrutiny. We are fully committed to ensuring that independent consultees are provided, and involved, in order to protect especially vulnerable people who lack capacity and who are what has been described as unbefriended.

We have provided for independent consultees in clauses 34 to 39, which we will come to. Those clauses impose a duty on the relevant NHS body or local authority to provide for independent consultees when serious treatment or changes in residence are proposed. If an NHS body or local authority fails in its duty either to provide an independent consultee or to consult them when the Bill requires, it will be open to challenge via the appropriate local complaints mechanism, and ultimately through judicial review.

The Bill clearly imposes a duty on local authorities and the NHS to provide independent consultees.

In contrast, clause 5, which has been completely recast, has an entirely different focus and purpose: it is there to protect individual carers. On Tuesday, the hon. Member for Daventry spoke about day-to-day care and issues—the acts in connection with care that people have to do on behalf of someone who lacks capacity. We recast the clause because of the Joint Committee's concerns. We took on board the Committee's recommendation and reconsidered the ''general authority'' that had caused concern, and we have now made it plain that clause 5 provides a defence from liability for individuals who must undertake particular acts of care or treatment for people who lack capacity. Let us be clear that clause 5 does not provide an authority to act. It authorises neither the NHS to provide treatment nor a local authority to arrange accommodation. Clause 5 simply provides protection for the individual nurse, social worker, informal carer or parent when they carry out their caring role for people who lack capacity. As such, it would not be helpful to link a public duty with an individual defence.

The amendment to which the hon. Member for Tiverton and Honiton spoke is designed to ensure that a decision maker takes into account the views of an independent advocate when determining the best interests of a person who lacks capacity, if there is no one else to be consulted. The clause specifies those whom the decision maker should consult in determining best interests: they include family and friends, informal carers, any attorney or deputy and people who care for the person in a professional or voluntary capacity, as well as anyone whom the person has named to be consulted or anyone with an interest in the welfare of that person. That is because such people will often have important information and views on what would be in a person's best interest and insight into that person's past and present wishes, feelings, beliefs, values and other factors.

Advocacy is good, but not for every decision under the Bill. Independent advocates can play a useful role, but the clause already requires that the decision maker take into account the views of an existing independent advocate. It would be inappropriate for the Bill to set out a requirement for the decision maker to consult an independent advocate for all considerations of best interest where there is no one else to consult. Consideration of best interest applies to all decisions and the amendment appears to seek to involve an advocate but without giving weight to the seriousness of the decision that requires that advocate—I think that the hon. Member for Daventry was getting to that point. The proposal would be over-bureaucratic, costly and unhelpful, and I say that notwithstanding any promotion to a position in the Treasury that the hon. Gentleman mentioned.

The issue is important. We have put in place a role for advocates for those who are unbefriended, but we cannot begin to thrust advocacy into all sorts of situations surrounding the decisions that the Bill encompasses.

Tim Boswell (Conservative, Daventry)

In a mutual exchange of compliments, perhaps I can take the Minister a stage further. Subsection (6)(b) refers to

''anyone engaged in caring for the person or interested in his welfare''.

I realise that there is a degree of ambiguity in the word ''interested''—indeed, I have expressed concerns about the possibility of conflicts of interest. Will the Minister reflect on whether the phrase ''interested in his welfare'' might include somebody who in relation to a specific matter stood as an advocate for a person in question, was known to the decision maker, and could be consulted on it?

David Lammy (Labour, Tottenham)

We have talked about subsection (6)(b)—indeed, all of subsection (6)—in the context of serious decisions made at the end of life. The requirement to consult in such circumstances is important. It includes any interested person so, yes,

an advocate is included in that respect. However, the Bill also covers many day-to-day actions and decisions, such as helping someone to button his coat or doing their laundry for them. Following consultation with stakeholders about where they considered people who lacked capacity were most vulnerable, we are providing under clauses 34 to 39 an independent consultee service for the most serious decisions that must be made about medical treatment and moves into long-term care when a person who lacks mental capacity has no friends or family, or unpaid carers who provide care or treatment. It is important that the Government target resources.

Standing Committee A

Clause 4 - Best interests

James Cran (Conservative, Beverley and Holderness)

I remind the Committee that with this we are discussing the following amendments: No. 95, in clause 5, page 3, line 35, at end insert

'and P has sought the involvement of an independent advocate where the matter to be determined is one falling within section 34.'.

No. 96, in clause 5, page 3, line 43, at end add—

'(5) Section 5 does not authorise an act in connection with serious medical treatment or a change in P's accommodation to a hospital or care home unless P receives advice from an independent advocate in accordance with section 34.'.

David Lammy (Labour, Tottenham)

Before we adjourned, I was concluding my remarks on these amendments. It is important that the Government target resources at the most vulnerable people in the most serious situations, which is what we aim to do through the establishment of an independent consultee. I hope that my assurances persuade the hon. Members for Sutton and Cheam (Mr. Burstow) and for Tiverton and Honiton (Mrs. Browning) not to press their amendments.

Angela Browning (Conservative, Tiverton and Honiton)

I am a little disappointed because I do not know how the scenario that I portrayed of adults moving out when the parental home was in crisis would be represented if they had never previously had a social worker, for example. I should like to think that someone independent would be there to consider what was being proposed for them. However, I shall return to the matter at a later stage in the hope that the Minister will consider it again. I beg to ask leave to withdraw the amendment.

Angela Browning (Conservative, Tiverton and Honiton)

I beg to move amendment No. 135, in clause 4, page 3, line 27, at end add—

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

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss amendment No. 108, in clause 4, page 3, line 27, at end add—

'(9) Where it appears to a relevant authority that—

(a) a person, ''C'', is engaged in caring for another person, ''P'', and

(b) section 5 may apply to acts in connection with the care or treatment provided by C to P, and

(c) C is not a person to whom section 40(4) applies (those individuals who are under a duty to comply with the Code)

that authority shall provide C with the codes of practice referred to in section 40(1)(b) (guidance for persons acting in connection with the care or treatment of another person) and take any other steps as it considers reasonably necessary to assist C in complying with section 5(1) (ensuring that P lacks capacity and reasonably believing that the act is in P's best interests).

(10) For the purpose of subsection (9) ''relevant authority'' means either—

(a) a local authority exercising functions under section 47 of the National Health Service and Community Care Act 1990, or

(b) a Health Authority, Local Health Board, Special Health Authority, Primary Care Trust or National Health Service trust which is responsible for providing or arranging services under the National Health Act 1997.'.

Angela Browning (Conservative, Tiverton and Honiton)

We touched briefly on these matters on Tuesday, but I felt it was important to add to subsection (8) the requirement that the decision is made as a result of exercising

''non-discrimination in respect of disability or age.''

We have disability legislation, but not legislation that relates to discrimination on the ground of age.

Claire Curtis-Thomas (Labour, Crosby)

On a point of order, Mr. Cran. I was wondering whether members of the public are to be invited to join us.

James Cran (Conservative, Beverley and Holderness)

I was not aware that members of the public had been prevented from so doing.

Claire Curtis-Thomas (Labour, Crosby)

There was a policeman outside.

James Cran (Conservative, Beverley and Holderness)

Perhaps the matter could be investigated.

Angela Browning (Conservative, Tiverton and Honiton)

There is legislation in respect of disability, but in many of the day-to-day cases that we have considered within the scope of the Bill, it is unlikely that the Disability Discrimination Act 1995 would kick in unless a formal complaint was made or the matter was something that the Disability Rights Commission felt was worth taking forward. I know from my discussions with the commission that it often looks for ''critical mass'' before it initiates action on a problem.

People who make decisions bring with them certain prejudices. I have now reached what is known as later life—that is, over 50 years old—[Hon. Members: ''Never.''] I am afraid so. The same is probably true of quite a few members of Committee, and we all know how we start to see discrimination on the grounds of age. We often debate the matter on the Floor of the House. We know that it exists. Within our lifetimes, we can remember when people with disabilities were not regarded by the state or society as worth educating. Fortunately, that has changed, but the time scale in which that change has taken place has been brief and many people still carry with them a lot of prejudices in their perception of disability and age. The amendment would add to the clause the requirement on people to think twice about any personal prejudices that they had in respect of age or disability.

David Lammy (Labour, Tottenham)

The hon. Lady has again raised the issue of discrimination that we discussed on Tuesday in relation to amendment No. 90. The Government share the hon. Lady's concern that everyone should be treated with equal respect and have equal access to health care and other services. That is very much in keeping with the spirit of the Bill, which sets out to change public attitudes and behaviour towards people who may lack capacity.

Although I understand the hon. Lady's concern, I assure her that the Bill, together with the Disability Discrimination Act 1995, already contains adequate provision to prevent discrimination on the basis of disability. We consider that the Bill offers considerable protection against discrimination. It requires all actions taken and decisions made on behalf of the person lacking capacity to be in the person's best interests and, as I said on Tuesday, it would clearly not be in a person's best interest to be unfairly discriminated against.

The Disability Discrimination Act provides further reassurance. Part III deals with discrimination in the provision of goods, facilities and services. In our discussions on Tuesday, the hon. Member for Daventry (Mr. Boswell) helpfully raised the relevance of the Act in relation to the Bill's provisions, because of the read-across of the Mental Capacity Bill's reference to impairment in clause 2. The very first clause of the Disability Discrimination Act says that

''a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities''.

Tim Boswell (Conservative, Daventry)

The Minister will recall a degree of diffidence in my putting the point on Tuesday. The fact of an impairment, albeit one that affects mental capacity, would not necessarily by itself prevent someone from carrying out their normal duty. There is no precise correlation between the fact of impairment and the lack of mental capacity, even if that impairment is a mental one.

David Lammy (Labour, Tottenham)

The hon. Member is right to establish that nuance, but as I said it is unlawful for a service provider unjustifiably to refuse to provide a service to a disabled person on the same terms as to other people. Service providers are required to make reasonable adjustments to enable disabled people to make use of their services. Those provisions mean that hospitals, care homes and social services must offer people who lack capacity the same standard of service, on the same terms, as all members of the public. As I said on Tuesday, however, the Disability Discrimination Act does not cover discrimination in private situations. That is because discrimination is a matter of civil law, and is difficult to enforce in a private sphere. Private individuals discriminate in their personal relationships, which is not unlawful. As the Bill covers both public and private situations, an all-encompassing anti-discrimination clause would be unenforceable.

I appreciate what the hon. Member for Tiverton and Honiton and other hon. Members have had to say about age discrimination—an issue that has rightly been discussed inside and outside this place for some

time. There may well be a case for legislation in that area, but the proper place for anti-discrimination provisions is in specific anti-discrimination legislation, with a proper framework and mechanisms supporting the measures. I am aware of work being done by my colleagues in the Department of Trade and Industry to tackle age discrimination in the workplace. Their consultation document ''Equality and Diversity: Age Matters'' was the first to focus exclusively on proposals for age legislation. The issue is live in and around the political world. Therefore, while sharing the hon. Lady's concern to prevent discrimination, we do not think it is necessary or helpful to amend clause 4 in order to do so. I hope she feels reassured and is able to withdraw her amendment.

Angela Browning (Conservative, Tiverton and Honiton)

I am grateful to the Minister. In my heart, I am not that reassured, but in view of the fact that I want the Committee to make progress and I do not want a lot of amendments to be dealt with under the guillotine at the end of this sitting, I beg to ask leave to withdraw the amendment.

Clause 5 - Acts in connection with care or treatment

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 16, in clause 5, page 3, line 31, leave out paragraph (a).

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss the following amendments: No. 93, in clause 5, page 3, line 32, leave out from beginning of line to 'and', and insert

'has capacity to consent to the act and must ascertain P's best interests if P is unable to consent for himself in accordance with section 4'.

No. 94, in clause 5, page 3, line 34, leave out from 'capacity' to 'and', and insert

'to consent to the act'.

No. 17, in clause 5, page 3, line 39, at end insert

'but he may be civilly liable to P both for acts done without P's consent, and also for any failure to take reasonable steps to establish whether P lacks capacity in relation to the matter in question or in failing to consult P about his view on the matter'.

Tim Boswell (Conservative, Daventry)

Surprisingly, although it would seem more radical to excise a paragraph, as we propose under amendment No. 16, amendment No. 17 is the more radical and substantive.

It has been brought to my attention that the Liberal Democrat benches are unmanned this afternoon. Committee members will be aware that that happens from time to time due to constituency obligations, particularly on Thursdays. I intend to say nothing derogatory about that, because it is perfectly reasonable and happens occasionally, although it is regrettable. I assure the Committee that I have no wish to assume the mantle of the Liberal Democrat spokesman. I have enough difficulties as it is with my side of the argument. However, there may be occasions when, in order to facilitate the argument, it is sensible for one of us to step in and move a Liberal Democrat amendment so that we do not lose the point. I say that because the word ''interest'' has been

mentioned a number of times, and the research that I have done does not indicate that my amendments, which come later in the group, are contingent or dependent on a Liberal Democrat lead. We shall see how it goes. I say that not by way of advance decision, but advance health warning.

I do not propose to say anything in particular about the Liberal Democrat amendments—because I have not thought about them much—but I shall say something about mine. Amendment No. 16 would exclude clause 5(1)(a). There are two duties on D in relation to P. We should remember that the situation in question involves what might be termed a common carer, not a person who is taking a decision in a medical or professional capacity. It is the kind of position that we might hold in relation to our loved ones or others we may be required to help—for example, in an emergency—in which we may need a degree of legal protection. One benefit of the Bill is that it offers for the first time a coherent legal protection for innocent people who are acting on behalf of others.

The Bill is structured with two obligations. First, there is the advance one, which I am nominally, for probing purposes, seeking to remove, whereby a person should be taking reasonable steps to establish whether P lacks capacity in relation to the matter in question when the act is taking place—remembering that the decision is not quite the same as an act. The Minister may like to comment on that . In such a case, I think that a decision is instantaneous, but that may not be so. It may be conditional, but when it actually takes place it is instantaneous. In the second obligation, D must reasonably believe that P lacks capacity and that it will be in P's best interests to carry out the act. I reassure the Committee that I have no intention of returning to the ''best interests'' issue now.

For the purpose of amendment No. 16, the question is: what are the reasonable steps that D would have to take beforehand? The Minister will no doubt want to tell us that that is ultimately for the courts to determine and one could have regard to the code. Well founded suggestions from another quarter say that it is important that people who are not experts are given adequate information about the code and what it is reasonable for them to know. The Minister will remind us that reasonableness is fairly well and objectively founded in law, and it should be clear enough to somebody doing something that they have legal cover for doing it.

That brings me to the purpose of amendment No. 17, which was specifically about what happens if that is not done—if the carer, or person responsible for the care of the person who is arguably without capacity acts carelessly or is acting in a way that might eventually lead to some civil, or even criminal, proceeding.

The Minister will know—I make this point to begin with, and I hope it reassures him, too—that the new negligence offence in clause 42 will not fall in relation to clause 5. Someone criminally negligent will continue to be so. However, I was concerned about the nature

of what I think the lawyers would call the tort—the Minister will correct me if I am wrong—in respect of the offence between the carer and the person without capacity. Is acting without consent in itself something that could be the subject of civil litigation?

Failure to take reasonable steps to ascertain whether the person had mental capacity is contingent upon any harm done by the failure to do that. That is precisely the sort of thing that judges get excited about when they suggest punitive damages because somebody's procedure has been at fault. Even assuming that mental capacity or the lack of it has been established, I am concerned about the position in respect of failure to consult the person involved and to have regard to their feelings and the other duties set out in clause 4. As a subset of that question, I am concerned about whether an advance decision made when the person had capacity is complied with.

The last thing I want to do is signal to the Committee a wish to create a spider's web of litigation that enfolds genuine carers. I am just anxious to tease out of the Minister what the duties are on a carer—they are set out to some extent—and what sort of litigation could arise or would not be excluded by the way the duties are set out. Clearly, there is no justification for a person to neglect somebody in their care, and as I understand it that would now be subject to a criminal proceeding under clause 42—I see that the right hon. Member for Rother Valley (Mr. Barron), who is a member of the General Medical Council, is nodding. That is not the issue with regard to this clause; I think that that is taken as read and that we would not want to argue about it. Nor do we want to encourage litigation involving persons who lacked capacity at one time so that the first thing they do when they have recovered—from a period of unconsciousness, for example—is sue their carers.

However, the Committee needs to spend a moment or two making clear the questions at issue. Were wrong acts done that damaged the person, perhaps they did have capacity but the carer assumed that they did not? Are acting without consent, or failing to take reasonable steps to ascertain the wishes of the person, or failing to establish whether they have capacity separate heads of damages? Even if those things are established, do they separately constitute a failure to consider the person's feelings in the matter?

We are trying to establish an understanding of best practice. Sadly, there will be cases in which this kind of question will be taken to court—by a vengeful relative, perhaps, or for perfectly reasonable reasons, or even for test reasons when somebody feels it is right to have a point explained or brought up in court without regard to the amount of damages. I am unclear about what is at stake, what is the nature of the relationship between the two obligations, and what in principle is sueable in the event of non-compliance. I am anxious to get clarification from the Minister on that. This is not a signal to create difficulties; it is just a signal to try to get the Minister to anticipate them.

Claire Curtis-Thomas (Labour, Crosby)

I have a simple question, and I hope that the Minister can answer it. Will D be

provided with adequate information from the relevant authority to make an informed decision for P?

David Lammy (Labour, Tottenham)

Amendment No. 16, tabled by the hon. Member for Daventry, proposes that subsection (1)(a) be removed. The effect would be to remove the requirement for the person who does an act in connection with care and treatment to take reasonable steps to establish whether the person lacks capacity in relation to the matter in question before doing it.

The hon. Gentleman explained the amendment, but I must resist it. It is undesirable, and I shall explain why. He may be aware that paragraph (a) was inserted into the Bill in response to concerns expressed by the Joint Committee, which thought that the clause as originally drafted gave the impression that people had a general authority to intervene and make decisions on behalf of those who lacked capacity. The paragraph therefore emphasised the Bill's ethos of empowerment and personal autonomy, and the key obligation of all carers to support and maximise the decision-making capacity of the person who lacks capacity.

The purpose of the paragraph is to underline the fact that people who make decisions on behalf of those who lack capacity must take reasonable steps to determine the latter's lack of capacity in relation to the matter in question. We have discussed those reasonable steps under the best interests clause. The amendment is undesirable in policy terms, for those reasons.

The hon. Gentleman linked his argument to amendment No. 17, which is the mainstay of his amendments. It is important to stress that the first part of the amendment is unnecessary and would have no legal effect because of provisions in the Bill. The clause provides a defence against liability, not an authority to act. If the person acting does not follow the steps set out in the clause, he may already be civilly or criminally liable to the incapacitated person for the act done, if the act would be unlawful without his consent.

The hon. Gentleman asked for what the provision provided a defence. There is a whole range of defences. He talked about intentional torts, and he was right about that. Assault, battery, false imprisonment, confidentiality and trespass are all matters in respect of which people who cared for those lacking capacity were at the mercy of the common law without knowing any detail. A person may need to invade someone's privacy; they may need to go into the shower to turn a person's water off, or undress an adult son. All those day-to-day circumstances involving people who care for those who lack capacity are for the first time encompassed in a defence under the clause. I hope that that gets to the nub of the hon. Gentleman's point.

The clause applies to actions, not decisions. It is because it applies to actions that certain acts could, in other circumstances, be unlawful. The clause is designed to provide a defence for the people who

make those caring decisions about acts that happen every day.

Tim Boswell (Conservative, Daventry)

The Minister is being extremely helpful, as I expected, on what are primarily probing amendments. However, if the Bill does not cover decisions—and the Minister just slipped back into using the word ''decisions'', which almost prompted me to intervene—will he please explain where there is any cover for someone who takes a decision? Presumably that centres on whether the person had mental capacity, and whether steps had been taken. If somebody says, ''That was a very bad decision you took for me while I was unconscious,'' how could redress be sought?

David Lammy (Labour, Tottenham)

The question is, if someone has taken a bad decision, whether clause 5 provides a defence for that decision. Decisions are not necessarily unlawful per se. It is only if they are not encompassed within the defence provided by clause 5 that there would be a problem. I hope that answers the hon. Gentleman's question.

Tim Boswell (Conservative, Daventry)

I am anxious not to try to trip the Minister up. I realise that these are important areas, and it may be better to return to them in correspondence, but my understanding from what the Minister said initially was that the clause concerned acts, not decisions. I am happy with that interpretation and explanation in answer to my earlier query. However, if that is the case, we should not be talking about decisions here at all, except that I genuinely and innocently asked whether decisions were a problem for people in the circumstances that we are discussing, in so far as they could be differentiated from acts.

David Lammy (Labour, Tottenham)

I think the answer is no. Not all decisions are unlawful. They do not all amount to negligence, or to anything that would require such defences.

Tim Boswell (Conservative, Daventry)

May I have one more try? I am probably picking the Minister's legal brains here, but it will be useful to spend a moment doing so. He has used the word ''unlawful'' a number of times. There is a potential problem if one intrudes on privacy, or otherwise on the person. Clearly, if one intervenes and mental capacity is there, there is a separate issue of any damages done to the person because of that—not in relation to their feelings, if it is possible to separate them, but materially, or some other way. How could somebody either be sued or avoid being sued for the consequences of what they did, other than for intruding on privacy or having acted outside the remit of the clause?

David Lammy (Labour, Tottenham)

If the hon. Gentleman is asking under what mechanisms people could be sued, he is asking me about process, and it is probably right for me to write to him on the detail; otherwise we might run into choppy water. I hope that the hon. Gentleman is at least partially satisfied, and feels able to withdraw his amendment.

Tim Boswell (Conservative, Daventry)

The Minister is, as ever, gracious and agreeable. He knows that the issue is serious. The last thing I want to do is trip him up, even accidentally, which would be unforgivable, on any matter of law.

There remain concerns, some of which he has satisfied specifically in response to these amendments, while others may interest interested parties, and merit a little further reflection. I think it better to leave the amendment for the Minister to reflect on, and for any correspondence that he wants to share with the Committee. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Angela Browning (Conservative, Tiverton and Honiton)

I beg to move amendment No. 137, in

clause 5, page 3, line 35, at end insert—

'(iii) that it will sustain P's life.'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss the following amendments: No. 109, in

clause 5, page 3, line 39, at end insert—

'(2A) Nothing in this section permits a person responsible for the care of another person (''P'') to withdraw or withhold treatment or sustenance from P if in doing so he has a purpose of hastening or otherwise causing P's death.'.

No. 97, in

clause 5, page 3, line 43, at end add

'or authorise an act which is inconsistent with a decision made by a lasting power of attorney or a deputy appointed by a court of protection.'.

Angela Browning (Conservative, Tiverton and Honiton)

I want to set a test concerning a particular group of people within clause 5. In this debate, and when the Joint Committee took evidence, we talked about people who had lost capacity, but not permanently. In relating the legislation to that group we cited the example of people with progressive dementia, who on some days would be quite lucid and on other days not, or people with schizophrenia, who would sometimes be good but at other times would have problems, and would lose capacity. My amendment focuses on people who in any other circumstances we might feel came within the remit of mental health legislation, where there is a clear framework in terms of what carers should and should not do.

On the other hand, there are groups of people who would not normally be deemed to have a loss of capacity but who might go into diabetic comas or have epileptic fits. Some people with one of a range of learning disabilities might, from time to time, demonstrate challenging behaviour when an incident has been triggered. Committee members will know that the physical strength of somebody, particularly an adult, who suddenly demonstrates challenging behaviour because they have become very upset by something, seems to grow enormously. They are very difficult to handle and could be putting themselves at risk as a result of that challenging behaviour.

That brings in the whole issue of the restraint of the person that might be necessary in certain circumstances. However, the issue in that situation would not be as predictable as it would be for somebody with schizophrenia or degenerative Alzheimer's. In such circumstances, the carer would need to intervene, perhaps by using some form of physical restraint. If someone is in the street with a person who suddenly starts to show challenging behaviour, they have to make a split-second decision

about what they will do, and one cannot consult on that.

Would the amendment not be an additional safeguard? The person who took the action might have done what they did on the understanding that it would sustain someone else's life, and because to leave them would put their life in danger. Alternatively, self-harm could be involved. Will the Minister consider that scenario? Such people are difficult to include, but they would almost certainly come within the scope of this Bill rather than mental health legislation—either the Mental Health Act 1983 or the Mental Health Bill that is currently under consideration.

Ann Winterton (Conservative, Congleton)

I shall probably be teased by colleagues, because I, too, am in the same position. Yesterday, the hon. Member for Sutton and Cheam told me that he could not be here today and asked me whether I would be inclined to support amendment No. 109. I am only too delighted to do so, but I did not think that I would be doing so on my own, although I hope that I am capable of it. The amendment covers the subject of my 2000 private Member's Bill, which arose because of the guidelines issued in 1999 by the British Medical Association, the doctors' trade union, entitled ''Withholding and Withdrawing Life-Prolonging Medical Treatment''.

When mankind abandons the maxim that human life is inherently valuable, there is nothing left to limit our capacity to regard another human being as worthless. History has shown that that capacity is almost unlimited. If one considers history, certainly that of recent times, one sees that that is true.

We can all agree with much in the BMA guidelines, for example:

''It is not an appropriate goal of medicine to prolong life at all costs, with no regard to its quality or the burdens of treatment.''

No one would disagree with that; it is certainly true. It is universally recognised that there are cases in which the burdens involved in treatment do not justify the probable increase in life expectancy or quality. In such cases, not to provide or to withdraw that treatment is a proper decision. However, several passages go further and appear to say that in some cases prolonging life ceases to be a worthwhile objective, because the life has no further value. I quote again:

''Whilst the BMA reiterates its opposition to active, intentional measures taken with the purpose of ending a patient's life, it does not hold to the view that there is an absolute value in being alive regardless of the patient's wishes or medical condition.''

At first, the difference between those two passages may not appear significant, but there is a profound difference. If there are medical conditions that render a life devoid of value and not worth saving at any cost, we will have to determine which they are. The BMA attempts to do that. It says that the things that give value to life are, first, being able to interact with other people; secondly, being aware of his or her own existence and having an ability to take pleasure in the fact of that existence; and, thirdly, having the ability to achieve some purposeful or self-directed action or to achieve some goal of importance to himself or herself.

I do not think that anyone would wish to deny that those are things that give value to life and which give us pleasure as people. The trouble is that they are matters of degree. If doctors are to be asked not whether the burdens of a particular treatment outweigh the benefits, which refers to an earlier debate, but whether the patient has this or that particular ability in sufficient measure to be worth saving, we are in a different situation altogether. The question would cease to be whether the treatment is useless and become whether the patient is useless. It is all too clear where that can lead.

We would not want people aggressively to be kept alive when death is inevitable—we touched on some of those issues earlier—but that does not mean we expect helpless patients to die of starvation and dehydration. Most reasonable people would agree that there is a difference, which is the difference between accepting and abandoning the traditional understanding of the sanctity of life.

Perhaps I should lighten what I have just said. I well remember driving somewhere in the north-west and I happened to switch on my car radio, which, as chance would have it, was tuned in to Merseyside radio. Merseyside has been very much in the news recently—more than I have, but never mind. I heard the hon. Member for Crosby (Mrs. Curtis-Thomas) taking part in a programme with Dr. Michael Wilkes, who was chairman of the BMA ethics committee. It was around the time when the guidelines were produced; I think they will have to be amended somewhat, considering recent court judgments. She asked him under what conditions he would withdraw assisted food and fluid from a patient. He gave a detailed description, at the end of which Claire told him, ''You would have killed my mother.'' That was the end of the discussion. That makes the point very clearly.

The amendment is worth supporting. I will not go on, although I could do so for hours on this subject, because it is close to my heart. It must be addressed by the Committee and by the House of Commons. However, in the interests of brevity this afternoon, because we have so much to get through in this important Bill, I rest my case.

Claire Curtis-Thomas (Labour, Crosby)

I rise to support my colleague, my hon. Friend the Member for Congleton (Ann Winterton), with respect to amendment No. 109 and clause 5. I have little to add to the arguments that she advanced.

I do not think that there is any desire to see food and hydration delivered to people where it is obviously—and where there has been advice that it is—burdensome to do so. There is a desperate concern that value judgments are made about people based on their physical state when there is little opportunity to assess their spiritual state. The two are not the same. People who are bereft of the physical capacity to express themselves are not necessarily bereft of any other capacity. Those people are my pivotal concern, as well as that of many members of the Committee, in particular because of my involvement with my mother who exhibited the type of condition to which I have

referred. I hope that the Minister deals with the point made by my hon. Friend and goes some way towards alleviating our concern, although I still believe that further work needs to be done in respect of future amendments on such matters.

Tim Boswell (Conservative, Daventry)

I shall be brief. The Committee will have noticed that the amendments were not tabled in my name and I remain somewhat sceptical about them. In no sense, however, am I sceptical about their importance and, indeed, the eloquence with which they have been addressed by members of the Committee. The matter is serious and no member of the Committee would feel happy with a situation in which doctors or carers were making decisions, in effect, to deprive people of life support because they had taken a view simply on the general health of the patient without having regard to the person's mental state and ability to function as an independent moral being, to take pleasure and so forth. That is an important distinction.

Will the Minister explain a little more about the meaning of the provision? Amendment No. 109 refers to

''a purpose of hastening or otherwise causing P's death''.

I presume it does so to exclude from any consideration in the mind of a doctor or carer a situation in which the motivation that this will bring the life to an end engages at all. The amendment would have been starker if it had referred to ''the purpose''. The Minister may be able to help in respect of legal definitions but, if the sole purpose of withdrawing the regime was to kill someone, that would be unlawful killing and be prohibited under existing law and, assuming that we agree that clause 52 formally enshrines the existing law on killing, there would be no difference.

The concern that my hon. Friends the Members for Congleton and for Tiverton and Honiton and others have expressed is that, in some way, taken with other considerations including advance decisions, such action might be construed as changing—advancing, metaphorically speaking—the law to make it easier for acts that would lead to an end of a person's life to be acceptable or covered in law.

Ann Winterton (Conservative, Congleton)

I think my hon. Friend has said before that he believes it right and proper to withdraw food and fluids from a patient in certain circumstances. However, if the purpose of removing food or fluid or omitting treatment of any kind is to hasten death, surely that is the same as euthanasia by commission.

Tim Boswell (Conservative, Daventry)

That is why I asked the Minister the question about ''a purpose'' and ''the purpose''. Is this something at the back of the mind of the doctor or carer that might be the natural consequence of a course of action? It was not entirely clear to me from my hon. Friend's question, but is the reference in respect of part of a course of treatment or part of the normal sustenance of a person's life otherwise? Although different, they are fine distinctions. Will the Minister pause a little on the issue of purpose? Are we considering a single purpose, one of a clutch of

purposes or the dominant purpose? We must be clear about such important issues.

I want to float the next matter, although with no great intensity of feeling other than just to observe it. Somewhere along the line may be a rough working distinction between withholding treatment—in the sense of not initiating a course of treatment, which, by definition, would be freshly intrusive on someone, starting the person off on a course of artificial feeding, nutrition and hydration, for example—and withdrawing a treatment that is already in place, unless there were a medical indication that the treatment had come to its end.

If a situation were medically stable, doctors may conclude that there is no forward progress to make. The Minister will want to speak to that. Although that may be a proper decision to take, it should not be taken in a hurry. Indeed, he referred to periods of up to 12 months, where that has been considered in the past. Withdrawing a treatment that is already in place, unless those conditions are established, is logically distinct from withholding a treatment that has not been initiated.

I fear that what I have said may further complicate a series of difficult operational decisions, but those are the thoughts that are going through people's minds, so perhaps I may summarise them briefly. I am less expert in this area than my hon. Friends the Members for Congleton and for Tiverton and Honiton, and I defer to their experience.

The primary concern is that somebody, whether a carer or doctor, will take the view that there is no purpose in a person's life. I understand that the clause is primarily concerned with carers, not necessarily with life-or-death decisions under different remits. I would not want to say such a thing about anybody's life. However, it would be of much concern if someone were to come to the conclusion that a life might as well be brought to an end. They might be thinking and saying, ''How shall we effect this? We'll withdraw something, or stop doing something, whether it is feeding the patient, or whatever.'' I would also be concerned if someone were to take that view because it was in an advance decision but not manifestly in the patient's best interests at the time.

I am also concerned with the question of purpose and intention. Being a lawyer, the Minister will be able to explain a little more about this. Perhaps he will tell us whether the intention is to bring the person's life to an end, whether this is about a distinct partial intention or purpose and whether there is any distinction in respect of turning off the lights of the life-support machine and terminating the artificial hydration and nutrition.

Ann Winterton (Conservative, Congleton)

May I make a point? That is repeated time and again. The hydration and nutrition are not artificial, although there may be artificial means of delivering them. We use shorthand for things, which can be confusing.

Tim Boswell (Conservative, Daventry)

I stand corrected and I am grateful to my hon. Friend. I was referring to nutrition or hydration delivered by artificial devices. Perhaps the

Minister will say whether there is some practical distinction, or legal distinction in current law or in the Bill, between something that is in place and is being taken away and something that could be in place because it could be considered a treatment but is not offered. Those are difficult issues and the Minister needs to respond to them.

Although I do not claim to be an expert in this area, it is sometimes valuable to bring a lay eye to bear. I am struck by the fact that the extremes of the argument do not now hold the field. My hon. Friend the Member for Congleton is saying reasonably that there are circumstances in which life should not be prolonged against the odds. I do not wish to caricature anything that she or others have said—that has never been her position—but she has said it clearly. On the other hand, nobody in the Committee, let alone the Minister, wishes to write people off as a matter of convenience, cost or any other simple consideration.

We are trying to bring things together in the middle, whereby these matters are not considered or resolved lightly and there is a proper format in which they are understood. In fairness to what has been said about the BMA's guidelines and the advice given by the GMC and so on, we are all working towards that end, even if we have not quite achieved it. Perhaps the Minister can enlighten us further.

Kevin Barron (Labour, Rother Valley)

I shall be brief. The hon. Member for Congleton said that she was quoting the BMA's guidelines. I think she means the GMC's guidelines, because that is the regulatory body for all doctors in this country. Although the BMA does have policy issues in and around this area, doctors are more likely to use the guidelines issued by the GMC, which is the statutory authority.

Without going into too much detail, the decisions we are debating are never taken lightly. I alluded to that on Second Reading and in previous debates in the House. The guidelines that were subject to the judicial review earlier this year—there might be an appeal at some stage—might influence the current guidelines and this Bill. On Second Reading, I asked about intolerability, which Mr. Justice Munby used—and I believe that that was also asked about during Tuesday's sitting. We will have to look at that issue at some stage, and I have no doubt that the lawyers in the Department are examining it now.

The current best practice guidelines for doctors in this country state:

''Where a patient lacks capacity to decide, the doctor, health care team or those close to the patient involved in making the decision, may reach different conclusions about the patient's preferences and what course of action might be in the patient's best interests. In these cases it is important to take time to try to reach a consensus about treatment and it may be appropriate to seek a second opinion, or other independent or informal review . . . In the rare circumstances where any significant disagreement about best interests cannot be resolved, legal advice should be sought on whether it is necessary to apply to the court for a ruling.''

As I have often said, none of those decisions are ever taken lightly, as some hon. Member have described. Doctors themselves will put cases into court if they are unhappy with the circumstances that unfold in front of them.

It is important that we recognise that this issue is alive in society and in clinical work, and that it has been for many years. We are trying to redress the law, as Justice Munby did, and as many others have and will do in the future. We should realise that there are strict codes and guidelines that clinicians work with in what are often—probably in all cases—very distressing circumstances.

Angela Browning (Conservative, Tiverton and Honiton)

I want to respond to what the right hon. Gentleman has said. We cannot lightly dismiss the number of elderly people who come into the sphere of the health services and who just slip away, for many of the reasons that have been described in Committee and on Second Reading. I raised this matter in last Tuesday's Committee sitting, after which I was grateful to receive a telephone call from the Royal College of Nursing assuring me that new schemes are being put in place to address that very problem. There is recognition of what has been happening.

Let us take as an example a busy orthopaedic trauma ward with elderly people who have the common fractures that the elderly get—for example, fractured necks of femur. Those people are often very frail before they undergo the operation. In such cases, we have considerable evidence—not just anecdotal—of nursing care at that point needing to be much more focused on what that person can or cannot do for themselves.

Kevin Barron (Labour, Rother Valley)

I hope that the hon. Lady is not saying that I am being dismissive. I was just trying to describe the current guidelines for clinicians. I do not disagree with her at all. My mother-in-law died from Alzheimer's disease in the 1980s. She fractured her hip on the ward—it was not a particularly good ward; I think they were called Nightingale wards at that time in Rotherham district general hospital. My wife and I and the rest of the family lived with Nancy's conditions for many, many years before she died.

I accept that there are things that are getting better all the time; I would be amazed if there were not. The whole Bill is about trying to get best practice into all areas of care and treatment. That is what we are trying to do, as I understand it. Some things will be better than in the past; I accept that entirely. I do not for one minute dismiss my experiences, those of my family and those of the thousands of people who have been, and will be for many years to come, involved in the care and treatment of people without the capacity to make their own decisions. That is the last thing that any of us in Committee would want to do. We need to make sure that we go forward in a proper and caring way to look after the interests of people in the future—

James Cran (Conservative, Beverley and Holderness)

Order. Mr. Barron, that is too long an intervention. Of course, you will have the opportunity to make another speech later, if you so choose. Mrs. Browning, I think that you had the Floor.

Angela Browning (Conservative, Tiverton and Honiton)

Thank you, Mr. Cran, but that was actually all that I wanted to say.

Mr. Boswell rose—

Angela Browning (Conservative, Tiverton and Honiton)

I give way to my hon. Friend.

James Cran (Conservative, Beverley and Holderness)

I am not sure that I should allow that, but okay.

Tim Boswell (Conservative, Daventry)

I can make what I say a separate speech if you wish, Mr. Cran.

I rise to say briefly, and not by way of reproof to my hon. Friend, who made a valuable point, that crucial to the issue is the question of not omission, but inadvertence. Clearly, there may be cases in which such a medical situation occurs through inadvertence, and that must be indefensible. In other cases, it happens by, shall I say, contrivance because it is felt that the person may be coming towards the end of their natural life or—this is not a phrase that I would tolerate or find comfortable—their life has no further purpose to it. That would involve a different set of considerations, although both cases are equally important. The only point that I would integrate into both is that they would have the same effect on the person involved.

James Cran (Conservative, Beverley and Holderness)

It is your turn to speak, Mrs. Browning.

Angela Browning (Conservative, Tiverton and Honiton)

I will now sit down.

Tom Clarke (Labour, Coatbridge and Chryston)

But not before giving way again, I hope?

James Cran (Conservative, Beverley and Holderness)

One last time.

Angela Browning (Conservative, Tiverton and Honiton)

I was right about the Golden Labrador, Mr. Cran. I give way to the right hon. Gentleman.

Tom Clarke (Labour, Coatbridge and Chryston)

I am grateful to the hon. Lady. I apologise to you, Mr. Cran, because I was not sure who was giving way to whom earlier.

When the hon. Lady referred to the Royal College of Nursing, I thought—and this is my fault—that she would move on to tell us its view of the Bill. Can she do so? What she said was extremely interesting. Did the college express a view on the amendments?

Angela Browning (Conservative, Tiverton and Honiton)

No. Representatives of the college heard my comments in Committee on Tuesday and sought to reassure me about the action being taken to deal with overall responsibility for nutrition and hydration for in-patients.

James Cran (Conservative, Beverley and Holderness)

I think that it is your turn now, Minister.

David Lammy (Labour, Tottenham)

I begin by telling hon. Members that the Royal College of Nursing said that it warmly welcomed the introduction of this Bill, which would enable many people to make decisions for themselves and provide protection for vulnerable adults.

I must deal squarely with much that has been said. We put best interests at the heart of the Bill and we have had much discussion about them. In talking about the clause and the amendments, it is important to say that the clause does not change the law on negligence. It does not affect liability for a failure to provide treatment. Instead, the clause provides a defence, as I thought I made clear earlier. The provision is not a blanket authority to act, and certainly not an authority to act in a way that none of us would consider desirable. Before a person acts, it is important that they establish whether the other person has capacity and, when acting, take reasonable

steps in that person's best interests. A doctor who withheld artificial hydration and nutrition, for example, causing death when he had a duty of care that required him to provide those things, would be liable for gross negligence manslaughter. The proposed additions to the clause would not strengthen or change that fact in any way.

On Tuesday, the hon. Member for Tiverton and Honiton on Tuesday said a great deal about the treatment of the elderly in our NHS. I said nothing about that this morning, but we have heard much said again this afternoon. The NHS employs 1.3 million people, most of them providing wonderful care every day throughout the country. Anyone going to the Greenfields ward in St. Anne's hospital in my constituency will see elderly people being cared for in remarkable ways. It is unacceptable to suggest that the elderly people of this country should be worried. Survey results show that 91 per cent. of people who experience care and treatment in the NHS are satisfied with it.

The Bill is not partisan, but it is important to make the point that the Labour Government introduced the national service framework for older people, for the first time setting high common standards in this country. In fact, elderly people are now getting better care in the NHS. It is important that we have this debate in that context.

Angela Browning (Conservative, Tiverton and Honiton)

When we have discussed care of the elderly in debates on the Floor of the House, not in the context of this Bill, I have made it clear from my own experience what excellent care was provided for my mother when she was in Wokingham hospital. The standard of nursing was second to none. We are not trying to say that all nursing care is bad, but that there is a problem with the care of the elderly in hospitals. The fact that the RCN is now embarking on a national programme to sort out the problem is proof in itself that something needed to be done nationally.

I have described my own family's experiences on three separate occasions with three different elderly relatives. My hon. Friend the Member for Congleton has given the Committee the benefit of her opinion, and the hon. Member for Crosby has given a moving account of the treatment of her mother. We have to grasp the fact that, whatever the aspirations of any party in Government may be, the issue that we are discussing is not partisan. We are dealing with what is actually happening—

James Cran (Conservative, Beverley and Holderness)

Order. This is now a speech, I fear.

Angela Browning (Conservative, Tiverton and Honiton)

You are right, Mr. Cran; it was.

David Lammy (Labour, Tottenham)

I said what I said about the treatment of the elderly in our hospitals. I am not suggesting there will not be occasions on which a small number of the 1.3 million people involved let the system down. However, the overwhelming thrust of policy is towards improving standards. We have all had experience of the elderly in our hospitals. I say that gently, but although I am proud of the poor socio-economic background from which I come, I had many older relatives who are no longer with us because of that

background. I, too, have some experience of that situation.

Kevin Barron (Labour, Rother Valley)

My hon. Friend is right to say that. The circumstances that I described of a member of my family in Rotherham hospital are completely different from the service that my constituents have now. Shortly after the 1997 general election, a private finance initiative hospital was built in my constituency and took over the old geriatric wards. Now it is like going into a hotel. It is wonderful to see people being treated in such a way, as opposed to the old Nightingale wards that we had before that hospital was built.

James Cran (Conservative, Beverley and Holderness)

Before the Minister speaks, let me say that I do not want this to descend into a back-and-forth between the two sides of the Committee about standards in the national health service. We must get back to the amendment, and I look to the Minister to do that.

David Lammy (Labour, Tottenham)

You are right, Mr. Cran. It is important to stress that clause 5 applies more widely than the provision of treatment at the end of life. It covers all care and treatment. Taking someone for a car trip to the seaside, cutting someone's hair, dealing with an in-growing toenail, or taking them shopping, are all acts connected with care and treatment, but they are not about sustaining the end of life. It is important, in the context of the amendments, that we understand that. In ensuring that we have proper safeguards in place for end-of-life decisions, we must take care not to take away important protection for millions of everyday caring actions that need to be done for people who lack capacity.

Tim Boswell (Conservative, Daventry)

I do not intend to return to the arms race and the claims and counterclaims that were made earlier, but perhaps I may take this opportunity to invite the Minister to correct a misconception—or rather, a misrepresentation—that I may have given earlier, as he talks about the purpose of the clause. It covers, of course, the whole spectrum of care and does not exclude professionals—they are included, as is everybody else. It is only in relation to life-threatening or life-relevant decisions that later clauses might kick in. We are talking now about the whole spectrum of personal care—and I see the Minister nodding.

David Lammy (Labour, Tottenham)

That is very much the case.

Of course, we recognise that we need to be especially sure that a person's best interest is being respected in relation to decisions about life-sustaining treatment. We all know that clinicians, parents and families have to make difficult decisions every day, some of which may affect the difficult situations at the end of someone's life. Such decisions might include whether to provide invasive cancer treatment for an elderly frail person who is close to death. Those are difficult decisions.

For example, when someone is in their mid-90s, a judgment call might have to be made about whether a last round of chemotherapy will be relevant. That is what the Bill is about. That decision should be made in their best interests—or, as some of the amendments are indicating, is the Bill about chemotherapy being given at all costs? It might be a burdensome operation,

with doubtful benefit and side effects that the person expressly does not want. Whatever the decision, the key interest remains the same: what should be provided and for how long?

Clearly, we want to do the best for each person. My hon. Friend the Member for Knowsley, North and Sefton, East (Mr. Howarth), who is not in his place at the moment, was clearest about emphasising those individual decisions, and emphasising that the assessments must be made case by case. We must ensure that we do not force aggressive treatments on people in their last days or hours. People at the end of life have a right to die with dignity and to be protected from distress. I am sure that hon. Members agree that prolonging life at all costs, regardless of intense pain and suffering, should not be our desired aim.

For instance, it is well known that powerful pain-killing drugs may have the so-called double effect of shortening someone's life. They could also give the palliative care that the doctor wants to provide. That cuts to the issue that was raised by the hon. Member for Daventry about purpose. A dual purpose is involved. The intention is not to bring about death, but to alleviate pain in what might be someone's last few hours.

We must ensure that the Bill is drafted so as to enable medical personnel and others to act in a person's best interests, giving treatment and care that is appropriate to the individual case. I have great sympathy with hon. Members who are concerned about protecting vulnerable people and I appreciate their commitment to ensuring that the Bill delivers that in practice. I also appreciate their concern to ensure that doctors and other professionals are unable to override a legitimate decision made by an attorney or a deputy.

However, I recognise the finely balanced decisions on best interest that doctors already have to take; they take them every day of the week. That is why talking about this issue is sometimes frustrating. The Bill will improve the situation. The hon. Member for Congleton—I almost said ''Doncaster, Central'' because there are two Wintertons on the Committee—referred to the example given by my hon. Friend the Member for Crosby when she spoke about her mother. The Bill says that when someone is blinking, they are able to give consent. It would enable the sibling or partner to be made an attorney for health and welfare decisions, and have the standing to make those difficult determinations with doctors. The Bill requires consultation; it says that doctors must consult and decisions cannot be made in isolation. In that sense, it improves on the current situation.

Claire Curtis-Thomas (Labour, Crosby)

One of my concerns is that there is a discreet difference between the treatment of different people. I do not think that there would be many questions about whether babies born today who are clearly incapacitated should be hydrated or fed. The presumption would be in favour of waiting and seeing, and establishing how they get on. Many relatives of elderly people who suddenly find themselves incapacitated would hope that the same

view would prevail: ''Let's hydrate and feed, and wait to see how they get on.''

However, there is a genuine worry that that does not happen; judgments are made for the elderly that are not so quickly made for babies, who may be in exactly the same condition. There is a ''Let's wait and see'' policy for the newly born, but the policy for the elderly is, ''You are 77, and we know what the outcome is going to be, so why wait?''

David Lammy (Labour, Tottenham)

My hon. Friend says that that happens, but it is our job to ensure that such things are limited. I mentioned the national service framework for older people, and we are making advances in improving care. My right hon. Friend the Member for Rother Valley is clear that there are guidelines for such issues, and that the determinations made every day are by and large in accordance with best interests. We are making an improvement.

I cannot put my hand on my heart and say that bad decisions are not made, but I can say that this Bill would considerably improve the situation. As I said, I appreciate the concerns that doctors and other professionals should not be able to override legitimate decisions made by an attorney or a deputy, but I recognise that doctors already have to make finely balanced decisions on best interests, and that they must continue to make them. However, the Bill would improve the safeguards surrounding such decisions.

It is important to remember that 1 million people are treated in the NHS every 36 hours. Some of them will be elderly, and a few will be reaching the end of their lives. It is our commitment to ensure that the right decisions are made about the care of those who lack capacity. The principle of best interests is central to that, and the acts in connection with care that we are discussing are about providing a defence, but only when appropriate, when difficult decisions have to be made for the benefit of such individuals. On that basis, I hope that the hon. Member for Tiverton and Honiton will withdraw the amendment.

Angela Browning (Conservative, Tiverton and Honiton)

The Minister did not focus on the point addressed by my amendment, which was about people who lose capacity unexpectedly and for a very short time. Perhaps he could address that point.

David Lammy (Labour, Tottenham)

I thought I did. We have talked about fluctuating capacity. Both the ''best interests'' clause and acts in connection with care allow decisions to be made on that person's behalf in any regard.

Angela Browning (Conservative, Tiverton and Honiton)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 139, in

clause 5, page 3, line 43, at end add—

'(5) Nothing in this section authorises P being deprived of his liberty within the meaning of Article 5(1) of the ECHR.'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss amendment No. 177, in

clause 5, page 3, line 43, at end add—

'(4A) Nothing in this section authorises the admission of P to, or detention in, NHS accommodation under section 36 where the purpose of such admission or detention is for the assessment of, or to provide treatment for, P's mental disorder unless:

(a) the NHS body has requested the local social services authority to consider whether an application for P's admission to, or detention in, NHS accommodation under the Mental Health Act 1983 ought to be made and

(b) the local social services authority considers that admission or detention under the Mental Health Act 1983 is not appropriate.'.

Tim Boswell (Conservative, Daventry)

I have moved the amendment on behalf, as it were, of the Liberal Democrats, as they are not here. Although I have not discussed it with the hon. Members for Sutton and Cheam and for Chesterfield (Paul Holmes), whose absence I have already said I regretted, I think I see what is going on. It would be helpful to have the Minister's speaking notes on the record, and some brief consideration of this matter.

Amendment No. 139 begins to pave the way on an issue that has recently come to attention in relation to the Bournewood gap. My hon. Friend the Member for Tiverton and Honiton is a greater expert on that than I claim to be, and I suspect that that also applies to the hon. Member for Sutton and Cheam, who originally tabled the amendment. The amendment would mean that nothing should authorise the deprivation of ''liberty'' in the meaning of article 5.1 of the European convention on human rights.

In anticipation of the Minister's defence of his position, I should record that he has given a certificate of compliance with the convention at the beginning of the Bill. However, I should also record, without prejudice, the work done by the Joint Committee. The Joint Committee on Human Rights has also considered the Bill, and I am slightly surprised that it had no observations at all to enter, which is unusual and did not apply to the Gender Recognition Act 2004, which the Minister and I debated some time ago. In a sense, the Minister had a clean bill of health—and anyway he would not wish an incompatibility to arise.

Amendment No. 177 deals with circumstances in which incompatibilities might arise. First, the force of the amendment would preclude the admission of P to, or detention in, NHS accommodation under section 36, unless the NHS body had requested social services to consider whether it was appropriate. Secondly, where a request was been made, there would be no admission if the local social services authority considered it inappropriate.

I have one technical reservation about the drafting of the amendment—as I do about some of mine—because certain circumstances could arise—

Angela Browning (Conservative, Tiverton and Honiton)

My hon. Friend mentioned the Bournewood gap, which the Joint Committee recommended that the Government seek to close. At that point, however, as the Committee will be aware, we had not heard the European Court judgment on Bournewood, which emerged on 5 October. It may be helpful for him to know that I intend to table a series of amendments to clause 28 to address the Bournewood situation.

Tim Boswell (Conservative, Daventry)

I am grateful to my hon. Friend for relieving me of that burden to some extent. I hope that she will table those amendments, because it is right that the Committee should discuss them. I hastily add that they should be discussed at that point, subject to the ruling of the Chair, because that would be a better time to do so.

As sometimes happens with my amendments, I have a reservation about the drafting of amendment No. 177. It does not take into account circumstances in which admission to a mental hospital, or a mental treatment regime, would be required urgently and could not have gone through social services, so they could not have ruled on it, one way or another. I am not sure whether the amendment is drafted to be comprehensive, but there is an issue there: the action would be ruled out if consent were withheld, but if consent had not been determined would it or would it not be ruled out until it had been withheld? There is, perhaps, a technical issue there.

A number of us, whether or not we are expert in this area, are conscious that there is a difficulty at different ends of the spectrum. If a person has capacity and may seek treatment, it is open to them to make decisions. On the other hand, if a person is—to use my shorthand term, which is probably wrong—''sectioned'' or detained for the safety of others as much as for their own that is a comparatively definite situation under the Mental Health Act 1983, although not an easy one. There are safeguards for that process under existing mental health legislation, as well as under the draft Mental Health Bill. However, there are questions about the safeguards that exist when a person is on a course of treatment and is not able or permitted to leave it, but is not formally detained.

This is an important issue; it is about the deprivation of liberty. It would be useful if the Committee were to start addressing it now, and if the Minister were to give us an interim response to the amendments that have been tabled, in anticipation of having another go at it when we discuss later amendments.

David Lammy (Labour, Tottenham)

I have no doubt that the amendments were tabled in the context of the Bournewood judgment, as the hon. Gentleman said. That case addressed the question of whether Mr. L's detention in hospital contravened his human rights under the European convention on human rights; hence the reference to that convention in amendment No. 139.

I entirely understand the hon. Gentleman's concern to ensure that the Mental Health Act 1983 is always used when appropriate and that the Mental Capacity Bill takes on board the lessons from the recent European Court of Human Rights judgment in the Bournewood case. I understand the concerns of hon. Members, particularly those who have campaigned on this case for some time now. We are seriously examining the implications of that judgment, but they will understand that as the judgment was so recent—it was made on 5 October—and as this is a highly complex area, it is too early for us to reach firm conclusions as to whether it has any impact, particularly on the Bill.

Angela Browning (Conservative, Tiverton and Honiton)

I do not want to get into the Bournewood case now, as I intend to table further amendments and I hope that we can deal more extensively with it under clause 28. However, I will repeat for the benefit of the Minister and the Committee something that I said to him privately this morning. Several Committee members also sit on the Committee scrutinising the Mental Health Bill, which started to take evidence yesterday. There was a clearly expressed concern on the part not just of the Committee but of witnesses that the Bournewood case will have to be dealt with either in this Bill or in the Mental Health Bill when it comes out of draft. There seems to be a lot of concern that it might fall down the gap, because this Committee might not address it, and instead leave it for the later mental health legislation.

That concern creates all sorts of difficulties. I know the Minister's Department is working hard on the judgment, because it is recent, but we need guidance as to whether the matter will be accommodated in the Mental Capacity Bill, or whether the Department intends it to be addressed under the mental health legislation.

David Lammy (Labour, Tottenham)

There is no likelihood of its falling down a gap, because it is a Strasbourg decision, so we have an obligation to ensure that we are in compliance with it. The consideration is continuing. The hon. Lady is right to say that the Mental Health Bill is currently receiving scrutiny, and we shall ensure that if we need to take steps they will be taken as speedily as possible.

The amendment also raises points connected with the European convention on human rights. I think that the hon. Member for Daventry knows what I am going to say, and if he would like me to put it on the record, I will. Section 6 of the Human Rights Act 1998 provides that it is unlawful for a public authority to act in a way incompatible with a convention right. Section 3 of the Act provides that, so far as is possible, primary legislation—wherever enacted—must be read and given effect to in a way compatible with the convention rights, including, obviously, article 5.

As is required, I have made a statement under section 19(1)(a) of the Human Rights Act 1998 that the Bill is compatible with the convention rights. It follows that nothing in the Bill can authorise actions contrary to any part of the European convention on human rights. All members of the Committee will understand that the Bill is empowering, and very much in the spirit of more general human rights.

Amendment No. 177 would require the national health service body concerned to request a social services authority to give formal consideration to the use of the Mental Health Act 1983, and for it to confirm that it was not necessary, before the provisions of the Mental Capacity Bill could be used. I am, of course, sympathetic to the aims of the amendment, but the introduction of an independent consultee already provides for the concern about patients who have no relatives or friends, and the need for consultation.

Tom Clarke (Labour, Coatbridge and Chryston)

Given the views of the hon. Member for Daventry on drafting, I am prompted to ask about suggested new subsection (4A), which specifies that

''Nothing in this section authorises . . . admission . . . unless . . . the local social services authority considers that admission or detention under the Mental Health Act 1983 is not appropriate.''

Does that reflect the role of social services in such matters?

David Lammy (Labour, Tottenham)

It definitely affects social services, because such matters would be covered under the Mental Health Act 1983—I hope that that is helpful to my right hon. Friend. Social services operate very much in proximity to that Act.

As I was saying, in creating the role of an independent consultee and in laying the duty for social services or the NHS to have that independent consultee, we have provided support for vulnerable people who would fall within that category, although clearly some vulnerable people will be outside that category, too. I ask the hon. Member for Daventry, bearing those points in mind, to withdraw the amendment for now and consider later whether the Government's response meets his aims.

Tim Boswell (Conservative, Daventry)

I am grateful to the Minister. He has more or less conceded that we have not received a full response. It is probably not reasonable to expect one at this stage, and it will probably be better to wait. Subject to the sort of discussions that we had about best interests that involved representations from interested parties, and having heard about the subsequent tranche of amendments promised by my hon. Friend the Member for Tiverton and Honiton, and being ready to listen to representations from all parts of the Committee, we will be content with such a process.

I must emphasise that we cannot allow the issue to go unaddressed between the two Bills—a point that the Minister has already conceded. An early strategic decision will have to be taken about which Bill will deal with the matter, and obviously, discussions will continue between hon. Members and interested parties. Many people are already beginning to work on such matters. I have supplied material to the Minister privately, because it will help to inform the debate. Rather than commit ourselves at this stage, it is better to stand back and say, as the Minister has, that we recognise that there is a problem. We do not want to rush to a conclusion, but we cannot put it off indefinitely because there is an obligation to respond both to the Strasbourg judgment and to the real problem in the real world, which will have to be tackled. With those comments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Claire Curtis-Thomas (Labour, Crosby)

The Minister has not really addressed my earlier question relating to the clause, so I will repeat it, and hope for an answer this time. Will D be provided with adequate information from the

relevant authorities to make an informed decision for P?

David Lammy (Labour, Tottenham)

Yes.

Question put and agreed to.

Clause 5 ordered to stand part of the Bill.

Clause 6 - Section 5 acts: limitations

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 98, in

clause 6, page 4, line 6, after second 'is', insert

'at that time and in relation to the circumstances of that time'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss the following amendments: No. 166, in

clause 11, page 6, line 22, after second 'is', insert

'at that time and in relation to the circumstances of that time'.

No. 106, in

clause 20, page 12, line 23, after 'act', insert

'at that time and in relation to the circumstances of that time'.

Tim Boswell (Conservative, Daventry)

Perhaps I may again stand in for the absent Liberal Democrats and move the amendment. In this case, it is easier to divine the motives of those who tabled the proposal, which seem to me entirely admirable. We are moving to the limitations on section 5 acts. They seem inherently reasonable, which is why we do not propose to amend them heavily, although I have some small queries of my own.

The amendment tabled by Liberal Democrat Members is entirely congruent with the Bill's approach. It involves whether there is functionality for the individual person, so that acts done on their behalf because they do not have mental capacity should be relevant to the time and the circumstances, rather than being covered by a general dispensation that says, for example, ''You, the carer, may do what you like for the person because they lack mental capacity,'' or, ''You need never consider whether they might have mental capacity.'' That is important where restraint or any degree of coercion are concerned, which is, as I construe it, more or less the substance of clause 6. That is something none of us likes. We would not choose to be in a position where it was necessary to cut across somebody, because it might indeed intrude on their feelings. It has to be done appropriately and only in those conditions.

As I understand these amendments, they simply put down markers to say that any act should be proportionate and circumstance specific, and there should not be a general understanding that the carer may intervene to restrain somebody or restrict their liberty. That is an admirable objective. Perhaps the Minister will respond.

David Lammy (Labour, Tottenham)

I understand, of course, that hon. Members are concerned to ensure that restraint of people who lack mental capacity is considered carefully. By ''restraint'' we mean both the use of force and the restriction of liberty or movement; it should not be employed lightly. The Government take the matter seriously.

Under the Bill, restraint is permitted only if it is necessary to prevent harm to the person, the act itself is in the person's best interests, and, I emphasise, the restraint used is proportionate to the likelihood and seriousness of the harm. That is a restatement of the common law rules, but putting them in clear and comprehensible statutory form will help everyone to understand them and be clear about what they have to do. The hon. Member for Daventry wants to ensure that restraint may be justified only in relation to a very tight set of circumstances. I understand his concern, and I hope I can reassure him that the Bill's provisions are already situation specific. I shall explain how.

Capacity is defined by whether, at the material time, the person is unable to make a decision. Clauses 11 and 20, together with clause 5, provide a defence in relation to a particular act only when all the relevant conditions have been satisfied. They do not provide an ongoing defence for a person using restraint. However, it makes sense for people to have that power in certain circumstances. If a person with dementia is likely to wander out of a house, it makes sense for her carer, attorney or deputy to be able to shut the door to protect her from harm each evening without having recourse to formal procedures.

If there is any doubt about the use of restraint, the act may be challenged as not being in the person's best interests, either through existing dispute resolution mechanisms or by making a complaint to the public guardian. In the case of deputies, the court may decide to amend or indeed revoke the deputy's authority. Clause 22(3) provides that a court may revoke a lasting power of attorney if the attorney is not acting in the person's best interests.

I hope I have reassured hon. Members that the Bill's provisions for restraint are already adequately situation specific. Neither the clauses on attorneys nor those on deputies provide an ongoing authority to use restraint. I hope the hon. Member for Daventry withdraws the amendment.

Tim Boswell (Conservative, Daventry)

I am entirely satisfied with that explanation. No doubt those who tabled the amendment will wish to study the record on the matter but, ad interim, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 18, in

clause 6, page 4, line 12, after 'restricts', insert 'or threatens to restrict'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss the following amendments: No. 19, in

clause 11, page 6, line 28, after 'restricts', insert 'or threatens to restrict'.

No. 20, in

clause 20, page 12, line 29, after 'restrict', insert 'or threatens to restrict'.

Tim Boswell (Conservative, Daventry)

I tabled these amendments myself, and they are in the same spirit as those that have just been discussed. We seek the Minister's clarification, and want to assure ourselves and satisfy the Committee that the safeguards are adequate, because we are talking about restraints on a person. They need to be

proportionate, act specific and implemented reasonably.

The three identical amendments are about restricting liberty of movement. The issue came to my attention when I first read the Bill. I noticed that under subsection (4)(a), someone who uses restraint is described as one who

''uses, or threatens to use, force to secure the doing of an act which P resists''.

Paragraph (b) mentions restricting ''liberty of movement''. Threatening to restrict liberty of movement is not specified. That may be because common law has not got there or because I am making an inappropriate analogy, but I would like the Minister to explain why it is not specified and whether it might be.

In the real world, it would be quite possible for someone who has become exasperated—not necessarily someone malicious—to say, ''And if you insist on doing that, I'll take away your Zimmer frame and you won't be able to use it and get around the room; your liberty will be restricted.'' That is not by itself a restriction of liberty, because it is a threat. None the less, it is an aggressive act towards the person, even if it is perhaps understandable in difficult circumstances. However, such threats should not be condoned without an explanation. Will the Minister speak on that concern?

David Lammy (Labour, Tottenham)

I understand the hon. Gentleman's worries. Sometimes, threats can be very unpleasant and frightening to those who lack capacity—as frightening as the use of restraint. Unfortunately, the amendment would be unworkable for legal reasons. Even though it is a tort in law to threaten to use force, threatening to restrict the liberty of someone with or without capacity is not a civil wrong that our law recognises. The threat to restrict liberty of movement would not count as an unlawful act of restraint for which a person needed special authorisation under clauses 5, 6, 11 or 20.

For example, a carer might tell someone with learning disabilities that they will make him stay in his chair until he has finished his dinner. That might be unpleasant, but it is not an unlawful action, so the amendment would have no effect. That does not mean that in those circumstances we would not seek to ensure that the appropriate guidelines were issued in the code of practice, in addition to the appropriate information on support in circumstances of bullying. Such situations are not desirable.

Tim Boswell (Conservative, Daventry)

I am grateful to the Minister for his elucidation. I am sadder, wiser and slightly concerned that the situation that has been described might arise, although I daresay it would not be appropriate to establish in the Bill a new legal precedent of the kind we are discussing. He has helpfully given me a way out, however, which will enable me to seek the Committee's leave to withdraw the amendment.

It might not be a tort and it might not be possible to put it in the way that I did, but I firmly hope that my suggestion will be in the draft code. I have not had a

chance to go through the code today to check whether it is. Acts that, as the Minister perceptively said, constitute bullying, even if they do not amount to a formal tort in respect of a person, are absolutely unacceptable. Possibly, they could be addressed in other ways, although that may require a degree of legal ingenuity.

I presume that if bullying were to become endemic in a particular case, it might eventually amount to a criminal act of negligence, but I do not know. I note some interest among those on the Labour Benches and the Minister might care to reflect on the matter. We all understand that such a situation is not what anybody wants from this Bill. I am sure that he does not want it, nor would he condone it happening. If we found a way of making it clear that it is offside, other than the idea I floated, I would be happy. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 21, in

clause 6, page 4, line 20, after 'act', insert

'or causing any act to be carried out'.

We are rattling through, and so we should. I pause on this point, however, to ask who is doing the act that is referred to. Somebody might have an agent to do an act for them in relation to a person that they were not doing themselves. That might be entirely sensible. For example, a nurse might be in my household when it was necessary to restrain somebody. I am not qualified as a nurse and I might regard it as sensible for them to carry out the restraint; I might not trust myself to do it appropriately.

Equally, I am concerned that somebody might be malicious, or might have some temporarily malicious motive, and might seek to avoid committing a tort on a person by trying to get a third party to do it on their behalf. Alternatively, there might be a joint act, where two people are involved in a restraint operation. I wonder whether the Minister will take us through that little set of circumstances. I assume that the matter is about not just who physically lays hands on a person, but someone commanding or requiring that to happen. I wonder whether he will explain how that works.

David Lammy (Labour, Tottenham)

I take the hon. Gentleman to clause 6(6), which is included to ensure that despite the prohibition on clause 5 acts in clause 6(5), life-sustaining treatment, or acts necessary to prevent a serious deterioration in the condition of a person who lacks capacity, can safely be given without fear of liability if there is an issue that needs to be resolved by the Court of Protection. That is probably where the medical staff take a different view of best interests from an attorney or a deputy.

The protection offered by clause 5 is aimed at those who do acts in connection with care and treatment. We have already discussed that. Clause 5 provides a defence to the doing of an act that might be unlawful .

The protection offered by clause 6(6) is necessary because of the prohibition on doing a clause 5 act that conflicts with the decision of an attorney or deputy, as set out under clause 6(5). It is unlikely, for example, that an instruction to a member of staff to do an act

could itself amount to an act to which clause 5 would apply. Therefore, the prohibition on clause 5 acts in clause 6(5) would not apply. Even if such an instruction could amount to a clause 5 act, it would be covered by clause 6(5) in any event, because it would be an ''act'' in its own right. For that reason, we think it is caught by clause 6(5). I hope the hon. Gentleman will withdraw his amendment.

Tim Boswell (Conservative, Daventry)

That was a most eloquent explanation, which allayed one of my fears at the expense of creating another. I appreciate that we cannot proceed backwards through the Bill, but the logic of what the Minister has said is that there could be a problem with clause 5 acts. If such acts were commissioned by somebody, the commissioner would not be protected, even if, as I understand from what the Minister has said, the person who carried it out might be.

That would not be an extraordinary situation. Leaving aside the context of a threat to life, as set out in clause 6, about which the Minister has spoken, somebody might say, ''Will you do this for me?'' or, ''It's my day off. Could you do the care act?'' Someone might instruct a person to do something, and might not carry out the act themselves. It should be clear that, assuming that the act is decent and done in good faith, neither the person who commissioned the act nor the person who carried it out should be subject to an action in tort. Perhaps we cannot resolve the issue, and I am not sure that we should jog back and debate it extensively—but does the Minister understand what I am concerned about?

David Lammy (Labour, Tottenham)

I am not sure that the commissioner would necessarily be committing a tort. The issue relates partly to the debate that we had a little earlier, and may be illustrated in the letter that I undertook to send to the hon. Gentleman.

Tim Boswell (Conservative, Daventry)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Tim Boswell (Conservative, Daventry)

I slipped up and did not table an amendment about this issue, but will the Minister consider subsection (7)? It states:

'' 'Life-sustaining treatment' means treatment which in the view of a person providing health care for P is necessary to sustain life.''

My difficulty with that is in the reference to ''a person''. As the Minister has said, there will often be a large number of people in a team providing health care for a person, certainly when that person is suffering from a life-threatening condition. Is the Minister saying in effect that the view of a single person in such a team would constitute an absolution from the provisions of subsection (5), or is he saying that the team would have to come to a collective decision? That is a potential difficulty, which the Minister might like to consider.

David Lammy (Labour, Tottenham)

May I consider it?

Question put and agreed to.

Clause 6 ordered to stand part of the Bill.

Clause 7 - Payment for necessary goods and services

Angela Browning (Conservative, Tiverton and Honiton)

I beg to move amendment No. 107, in

clause 7, page 4, line 27, leave out 'must' and insert

'should, with consideration to his means'.

I am mentioning this amendment just so that the Minister can clarify something. It was tabled by the Liberal Democrats, and would mean that payment for necessary goods and services should be made

''with consideration to his means''

by the person who lacks capacity to whom they are supplied. Will the Minister comment on that? A wide scope of goods and services is covered by the clause, and normally many of them would be subject to some form of means test to establish whether they should be provided by social services, with or without a contribution from the person. Will the Minister clarify the intention and say whether he feels that advocacy services, which might be needed, come within the scope of ''payment'' under the clause?

Tim Boswell (Conservative, Daventry)

To save my having to make a point on clause stand part, I shall say now that there is a difficulty in the amendment, which is why I did not rush to move it. It creates an interesting principle whereby goods and services, whether or not they are necessities, would be charged for differentially according to the means of the person. We all know people who are relatively poorly off, and I am sure that they would like to get their milk at half price, but unless there is a specific provision—by way of tokens, vouchers or some other system—that is not how the market works. I am not sure whether the Liberal Democrats had that in mind when they tabled the amendment. Charges should be reasonable, but they should not be stepped by reference to means.

There is another separate problem with persons who may not be at arm's length from each other. If the milkman was providing the service and happened to know the family, they could—and sometimes would—charge more, rather than less, and seek to get some advantage from the situation. The common law principle probably avoids that difficulty, so that nobody would be able to rip others off in that way. Perhaps the Minister will reassure me and make me feel a bit happier about that.

David Lammy (Labour, Tottenham)

The amendment would mean that the person lacking capacity would not have to pay a reasonable price for necessary goods and services, but only a price that he could afford; the contractor would need to take his means into account when setting the price. I appreciate that the hon. Gentlemen who tabled the amendment wanted to ensure that when a person who lacked capacity entered into a contract for necessary goods and services, his ability for them should be taken into account. However, the clause also protects individuals and organisations supplying goods or providing services, including businesses and tradesman, who are entitled to receive a reasonable price when they provide the necessary goods or services to someone who lacks capacity.

I see no need for a contractor to expect to set prices differently for a person who lacks capacity. Just because someone lacks capacity, that does not mean that they should pay less for goods and services. That would be contrary in presumption and feel to the way in which we generally handle things in common law. That does not mean, however, that if someone enters into a contract that they did not understand, it would be voidable under English law. There is a distinction for necessaries, which is the category into which such a contract would fall.

Angela Browning (Conservative, Tiverton and Honiton)

We are talking about people who lack capacity, and one assumes that the contract and purchase are made by a third party on their behalf, because they would not be contracting directly with people. My interpretation of the clause is that the third party is making the contract or purchase for P. For example, if D were looking at a range of wheelchairs for P, and there were certain categories of wheelchair that they would get assistance to purchase, it would be inappropriate for D to contract on P's behalf for something that was outside their means. In addition, however, where, because of means-tested benefits, it was applicable for them to have support in purchasing such a thing, that would need to be taken into account. I am not making myself clear, Mr. Cran, and I am sorry about that—and I can see that you are trying to encourage me to wind up. It would not be acceptable for D to purchase a super-duper catalogue wheelchair well in excess of the needs, because P's means would not cover it, and something lesser might do.

David Lammy (Labour, Tottenham)

No, the Bill does not allow a third party to contract without formal authority—and we shall go on to discuss that, in terms of becoming an attorney or deputy. Clause 7 allows a contract to continue with the person who lacks capacity, but in fact, the third party can pay for that contract under clause 8. For the reasons that I have set out, and given our earlier discussion about fluctuating capacity and other matters, it is not right that someone who enters into a contract for necessary goods should have to pay less than the rest of us.

Angela Browning (Conservative, Tiverton and Honiton)

That has clarified things. Thank you.

James Cran (Conservative, Beverley and Holderness)

Is the hon. Lady withdrawing the amendment that she moved?

Angela Browning (Conservative, Tiverton and Honiton)

I did not mean to move the amendment; it was simply a probing, clarification exercise. However, if I need to do withdraw it I shall.

James Cran (Conservative, Beverley and Holderness)

You did indeed move the amendment.

The rest of the debate is in Hansard.