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Mr. John Redwood (Wokingham) (Con): I am grateful to the Minister for giving way. I am also grateful for clause 58, and for the assurance that he has given to the House that this is not an attempt to introduce euthanasia by the back door. However, many Christian groups, including those in my constituency, are still very worried about this issue. Would it not be possible for the Minister to build in those assurances on the grounds of omission and treatment, as well as on the grounds set out specifically in clause 58? He would find an awful lot of good will around the House if he did so.

Mr. Lammy: We have worked very closely with all the Christian communities, particularly the Catholic Church, and many of the provisions in the Bill, including clause 58 and parts of clause 25, are a direct result of recommendations made by the Catholic Church. Also, central to the issue of omission is the best interest principle. The principles underlying the Bill are up front in clause 1, which says that people who lack capacity can come in and out of capacity. We have sought to put safeguards in place in that regard. These are difficult decisions, however. Doctors, carers, parents and loved ones make difficult decisions every day of the week, up and down the country. The Bill puts a framework around that process.

Mr. Desmond Swayne (New Forest, West) (Con): Will the Minister set out for the House the standards by which the best interests of the patient are to be determined? It is certainly not clear from the Bill.

Mr. Lammy: I am surprised that the hon. Gentleman says that. If he looks at clause 4, he will see that all circumstances are relevant. This is the first time that we have laid that out in statute. He will see the assumptions that should be made about someone who has or has not lacked capacity. He will also see that, for the first time, we are saying that loved ones should be consulted, and that a person's values, beliefs and concerns should be taken into account. It does not get much clearer than that. We have attempted, in the Bill, to ensure that the person who lacks capacity is central to the discussions about their best interests, and that those who know that person can make recommendations on their behalf. The best interest principle involves an objective assessment, however, that will be made primarily by a doctor.

Chris Grayling (Epsom and Ewell) (Con) rose—

Mr. Lammy: I want to make some progress.

The Bill is about empowering and protecting people who lack mental capacity. That is its starting point. People have told us that they feel as though they have been "written off" as unable to do anything for themselves. That is why the principle of an assumption of mental capacity is set out in the very first clause of the Bill. The Bill also says that mental capacity must be considered in relation to the decision that needs to be taken at the time. People may be perfectly able to take decisions about some parts of their lives, such as what to wear, while needing a parent, a carer or the medics to come alongside them to help with other, more complex decisions, such as how to manage their investments.

The Bill also says that such people should not be treated as unable to make a decision merely because they make an unwise decision. We have all done things that
 
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our family or friends think are unwise. In a sense, the intention is to give people with impaired mental capacity the chance to express their individuality, as everyone else does.

The Bill also protects and supports people who lack mental capacity. Sadly, as we know, there are occasions when people without mental capacity are abused by those whom they trust. Cases such as Longcare have increased our awareness of the risks of abuse. Accordingly, we have introduced in the Bill a new criminal offence of ill treatment or neglect, with a maximum sentence of five years. We cannot tolerate abuse of vulnerable people.

Mr. Tim Boswell (Daventry) (Con): I am grateful for the Minister's careful explanation of the Bill. Can he explain the circumstances under which that new offence might kick in, which would not be covered, for example, by the existing law of negligence?

Mr. Lammy: One of the questions that people have asked is: to whom do they go when they are worried about what is happening with a particular person who lacks capacity? We have been keen to ensure that in implementing what I hope will become the Mental Capacity Act, the Public Guardianship Office, social services, carers and parents are clear about the safeguards, the increased criminal offence and the increase from two years to five years. We must ensure that they understand to whom they can report people about whom they have fears, particularly in relation to abuse. The hon. Gentleman will also understand that the independent consultee may play an important role, particularly because people who are not befriended have no one to act on their behalf. If necessary, they can report things about which they are concerned.

Liz Blackman (Erewash) (Lab): I welcome the Bill, which has potential to give people who have great difficulty in making and communicating decisions, such as those with autism, much more control over their lives. My hon. Friend will be aware, however, that there is some disappointment in relation to the lack of an independent advocacy service, particularly for those with the most severe disability. Will he keep an open mind and look again at that aspect? As I said, he will be aware of such concern.

Mr. Lammy: I am grateful to my hon. Friend for her point and for all that she does to campaign in this area. The independent consultee proposal is new, it is supported by money, and we have indicated in the draft code that we are keen to look at ways of extending and framing it. At the same time, she will know that we must strike a balance between existing advocacy services, which independent organisations and charities run in all communities, and parents and carers. Two weeks ago in Brighton, I met some of those who provide that role, and those who lack capacity are keen for them to do so. They ensure that the most vulnerable are provided for, which is why we have introduced the independent consultee. I understand my hon. Friend's concerns and the reasons why people are keen to ensure that vulnerable individuals, with various disabilities, have someone to act on their behalf.
 
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Mr. Paul Burstow (Sutton and Cheam) (LD): In relation to what the hon. Member for Erewash (Liz Blackman) has said, can the Minister confirm that he is willing to entertain amendments in Committee that will enable us to extend the right of advocacy in the Bill?

Mr. Lammy: I have said that we are consulting. The hon. Gentleman will have seen the draft code on the framing of the independent consultees. It is not helpful to devise a system that requires statutory advocacy services in cases where, first, we know that the services are independent, secondly, it is right that local social services and primary care trusts make the determinations and, thirdly, people have parents, siblings and carers who already provide such services. However, we shall hold that debate in Committee.

The package has two elements. If a person has no relatives or friends to consult about serious medical treatment decisions or long-term changes of residence, an independent consultee will help to ensure that the decision is genuinely in the person's best interests, and especially that the person's views and wishes are fully considered.

We acknowledge that there may be other circumstances in which it would be helpful to have extra safeguards. We have therefore included a regulation-making power to extend the independent consultee provisions and we hope to consult about and discuss that more fully in the coming weeks.

I want to explain how the Bill sets out what people in a caring role can and cannot do when the person for whom they care lacks the capacity to consent. The principle of best interests is critical to that and I have already had much to say about it. When someone cannot make a decision, the best interests principle requires that any act done or decision made under the Bill must be in that person's best interests. That principle must be at the heart of all decision making. That means not only what the person would have wanted but an objective test, considering all relevant factors. Clause 4 sets out some of them in detail.

Chris Grayling : Apart from the concerns that my hon. Friends have articulated about euthanasia, I have a specific anxiety that is based on experience in my constituency, which has five large old mental hospitals. They have been run down in the past few years. There have been tensions between the residents' families, who want their relatives to move to a village environment, and the care agencies, which want to push the residents out into much smaller community homes. The families feel that that is the wrong decision for their relatives. Will the Minister reassure me that the provisions that define best interests give a fair balance between the families' views and those of the agencies? My experience shows that the agencies often have the upper hand.

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