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I am grateful for that question and I can give the hon. Gentleman the assurance that he seeks. For the first time, we are providing in statute for a duty to consult, and saying that beliefs and values are relevant to the determination. We are also making it clear that the best interests test is objective. I believe that the hon. Gentleman's constituents will be in a much stronger position once the Bill is enacted than they might have been without it.
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Clause 4 sets out some of the relevant factors, including: considering whether the person is likely to regain mental capacity; permitting and encouraging the person to participate; considering the person's wishes, feelings, beliefs and values; and taking account of the views of others who know the person well. Indeed, the last factor reflects the hon. Gentleman's example.
The checklist is not exhaustive but designed to make it clear that decision makers should take everything that is relevant into account. In that way, the person who lacks mental capacity stays at the centre of all decision making. The list also gives people a clear basis for discussion if there is any doubt or dispute.
Mrs. Angela Browning (Tiverton and Honiton) (Con): The Minister knows that the scrutiny Committee recommended that the Bill should pass the Bournewood test. He referred to the people who know the person best. Let us consider the paid carers in the Bournewood case. As the Minister knows, the European Court found in favour of Mr. L last week. In that case, the paid carers knew the person best, but I do not believe that they would be at the top of the list of consultees under the Bill. In the light of last week's judgment, does the measure pass the Bournewood test, or will the Minister amend it?
Mr. Lammy: I am grateful to the hon. Lady, who brings much expertise to these matters. She served on the Joint Committee and has continued to press the Government and others about these important issues. The Bournewood decision is less than a week old. Clearly, it is important. We are considering it and what amendments we may or may not have to make in that regard, but she will know that it pertains to circumstances five or six years ago. It is important that we look at it in the context of matters as they are today. However, I accept her point. We are looking at the matter very carefully.
Mr. Duncan Smith: I apologise for the many interventions, but the Minister will understand that this is a highly charged and emotional issue. The point that my hon. Friend the Member for Tiverton and Honiton (Mrs. Browning) made is important. He talks about consultations and taking other views into account, but is not the nub of the matter that the person who is responsible is the person who is placed with the power of attorney? That person will decide what happens. Under the Bill, that could be an appointed deputy, who may have no personal understanding of the individual concerned and thus may not necessarily take advice from others whom they should consult. Is not that the reality? The issue of euthanasia by omission lies at the heart of the Bill. While that provision is there, the attorney, all powerful, makes the final decision. That punches a hole in the Minister's argument.
The right hon. Gentleman has some experience of these matters. He has a hospice in his constituency that many of us in north-east London have campaigned for. No doubt he has received representations in this regard. He will know that the attorney is most often the wife or partner of the person who may have dementia. They will have taken on that role and been with that person for many years. It is
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important not to conflate the lasting power of attorney under the Bill with the role of a deputy where someone has no one. The court brings in the deputy. Under the Bill, that will be done in the least restrictive manner. It is a de minimis power, subject to court scrutiny, and it can be revoked if there is a challenge or problem. It is important to that bear that in mind.
Clause 5, entitled "Acts in connection with care and treatment", is an important clarification of the law surrounding what someone can do to or for a person lacking mental capacity who is unable to give consent. The current law is based on the poorly understood and obscure "doctrine of necessity". Hon. Members will know of constituents who are worried and uncertain about what they are allowed to do, because they do not understand the law. For example, a nurse may want to restrain someone who is having an epileptic fit. Someone caring for an elderly patient at home may need to help them to use the toilet. Someone whose daughter suffers from bipolar disease may want to go to her house to cook for her and to help her to eat because she is in too much distress.
It is not right that people in such situations should have to rely on what seems to them to be an outdated and obscure legal concept. Clause 5 explains what they can do. It provides that one is protected from liability when the person cannot consent, provided that one takes reasonable steps to establish whether that person lacks mental capacity in relation to the matter in question, that one reasonably believes that the person lacks capacity in relation to the matter, and that what one does is in the person's best interests.
The Bill will introduce a new specialist court. The new court of protection will have the statutory power to make declarations about a person's capacity in relation to a particular matter or matters, and whether any act in relation to that person is lawful.
Mr. Graham Brady (Altrincham and Sale, West) (Con): Before the Minister moves on, will he confirm that the same removal of liability applies to allowing medical research to be undertaken on someone where they have not given consent and where their family have not given consent?
Mr. Lammy: There are strict criteria and codes concerning medical research, which I hope to discuss. I would not want the hon. Gentleman to conflate that issue with that of acts in connection with care, which is dealt with separately in the Bill.
Supported by a public guardian, the new court of protection will be an important new specialist resource and final arbiter. For instance, it will be able to act in cases where urgent medical treatment is needed, and in serious cases involving ethical dilemmas in untested areas.
It is also important that I talk about how the Bill gives people the opportunity to plan ahead if they wish. Although we do not like to think about it, any one of us could lose our mental capacity through illness or accident; indeed, much recent case law has arisen because of car accidents and other such incidents on the road. Members will already know that they can plan ahead for financial matters by making an enduring power of attorney. We think it right that people should
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be able to do this, but I do realise that for many years, Members have raised concerns about the potential for financial abuse under the old EPA system. We have addressed these concerns by strengthening the safeguards. Lasting powers of attorney must now be registered before use, so that a person's claim and entitlement to hold an LPA can be checked on a register. Others must be notified when someone applies for an LPA, and given the chance to object. If concerns are raised about a person's use of an LPA, the public guardian can investigate the matter and, if necessary, the powers can be amended or revoked.
Mr. John Bercow (Buckingham) (Con): I am grateful to the hon. Gentleman for giving way and I have been attending closely to his argument. It struck me that his reply to my hon. Friend the Member for Altrincham and Sale, West (Mr. Brady) on the issue of whether research could be conducted on a person without that person's consent was, to put it mildly, studiously opaque. Given that it appears from Lord Filkin's reply in a letter to my hon. Friend that there are circumstances in which such research can be carried out when the individual affected lacks capacity to consent or otherwise, will the Minister confirm that no such research can be carried out if the person now lacking capacity to consent previously expressed opposition to the idea, or can he not assure us even on that front?
Mr. Lammy: Of course, if the person concerned made an advance request, we would rightly look to consider that. The hon. Gentleman will know that ethics committees make such determinations every day of the weekI shall deal with research in due courseand that they are central to that discussion. So in that regard, this is nothing new.
Mr. Dominic Grieve (Beaconsfield) (Con): Surely the problem with the issue of medical research is that the Bill as drafted allows such research to take place on a patient who does not have mental capacity, even though its being carried out might be of absolutely no benefit to them personally. That raises serious ethical issues that we will have to consider carefully in Committee; otherwise, I fear that the House will go in a very wrong direction.
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