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Mr. Lammy: First, I should point out that this is something that the Joint Committee wanted. The hon. Gentleman is right in part, but the provision is for the benefit of the patient and of those with a similar condition. However, we will have that discussion in due course.
We know that many people would like to have the LPA option for health and welfare decisions, and for the first time the Bill provides such a choice. If they wish, people will be able to appoint a relative or friend whom they trust to take decisions on health and welfare, should they lose mental capacity. No one will be forced to make an LPAit will be a matter of personal choicebut for some, knowing that someone close to them will be acting for them will be a great comfort.
It is important to stress that attorneys will not be able to act simply in the way that they think the person concerned might have wanted. They, like everyone else,
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must act in the objective best interests of the person. If they fail to do so, they will be liable for a breach of their duty of care.
Mr. Philip Hammond (Runnymede and Weybridge) (Con): May I take the Minister back to his answer to my hon. Friend the Member for Buckingham (Mr. Bercow), to make sure that I have understood what is being proposed? The Minister said that, if someone made an advance decision that they did not want to be a subject of research, it would be something that he would "look to consider" in reaching a decision. At the same time, the Bill says, as I understand it, that if someone made an advance decision that they did not wish to be resuscitated, a doctor would have to follow that decision on pain of criminal prosecution. Is that not correct? Is there not an imbalance there?
Mr. Lammy: Someone can make an advance decision concerning research. However, I am coming on to the point that, while it must be right for people to be able to take a decision now about what should happen, what we are doing for the first time is strengthening the powers and laying out the context in which such advance decisions can be made. That has to be a good thing, but let me explain in more detail what that means.
Mr. Lammy: People who have mental capacity have the right to say that they do not want a specific treatment. Some people may choose to plan for a time when they might lose that mental capacity by setting out such refusals in advance. I know that there has been much discussion about that issue, but let me be clear that, under the common law, any one of us could take an advance decision to refuse treatment now. All of us can do that and we believe that it is right to establish a framework and to set out the criteria for people who want to take such a decision.
That is also important because doctors and others who have to deal with such patients must be clear about their status and the safeguards that apply. Medical professionalsnurses and doctorsneed to be confident that an advance decision genuinely represents the person's fixed decision. That is an important factor and we have set that out at the heart of the Bill in clause 25. We have made the criteria surrounding advance decisions tighter. Under the Bill, it is tougher for a doctor to argue in law that an advance refusal of treatment is valid and that treatment should therefore be withheld than it is for him to defend a decision to go ahead and treat. If in doubt, there is a clear presumption in favour of the preservation of life. That is the strong implication of clause 26. A suicide note saying "I want to die" would not be a valid advance decision because someone suffering from suicidal despair or depression would not have the required mental capacity.
The Minister is coming on to a key issue on which he may be able to provide further reassurance to the House. It is certainly my understanding from reading the BillI would be grateful if the Minister would confirm itthat any expression of an earlier wish
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when a person has capacity that is either tantamount to a request to commit suicide or falls into the grey area where the person is asking to be assisted into death when that course is unnecessary and contrary to common sense would not be made legitimate by the Bill.
Mr. Lammy: That is absolutely 100 per cent. correct because the person, obviously in distress, would not have capacity. Any doctor or medical professional treating that person would not accept the suicide note or similar expression of the patient's will. The person's wishes would not be deemed valid or applicable in that context.
Dr. Ian Gibson (Norwich, North) (Lab): The Law Society was keen that the Mental Health Bill and the Mental Capacity Bill should, because of the close connections between them, proceed in parallel. Will the Minister make it clear that, although there is a gap between the two Bills, the Mental Health Bill is now before the House in draft form?
Mr. Lammy: Many people, as my hon. Friend will know, have campaigned for this Bill for many years. It deals with a broad group of peoplenot only those who lack capacity, but their carers and others. The Mental Health Bill will deal with much more specific circumstances to do with mental health. For that reason, it is important for this Bill to make progress and for the Mental Health Bill to receive the required scrutiny. We must ensure that we achieve good legislation in that area as well.
Right hon. and hon. Members will be aware that fears about euthanasia have been raised in relation to this clause and this Bill, but they have nothing to do with euthanasia. The Joint Committee was clear that such fears were misplaced. The Bill in fact clarifies the law, and strengthens the safeguards, but in response to people's concerns we have amended the original Bill to remove all doubt. In particular, we have added clause 58 to say, in so many words, that
"nothing in this Act is to be taken to affect the law relating to murder or manslaughter or . . . assisting suicide".
Mr. Damian Green (Ashford) (Con): The Minister mentioned clarification. As I understand it, he has told the House that a patient with mental capacity would be able to refuse to have research carried out on them, but that it is not possible for that person to refuse it for any future point at which they might lose mental capacity. That is what the Minister appeared to tell the House.
Mr. Lammy: I dealt with that point. I made it clear that a person can make an advance decision not to participate in research. That is clear from the Bill and I thought that I had made it clear. Perhaps the hon. Gentleman did not hear me. I hope that these changes will finally lay to rest the fears about euthanasia.
Lynne Jones (Birmingham, Selly Oak) (Lab):
When my hon. Friend the Minister addressed the concerns of Opposition Members, I understood him to say that if a person has an advance directive to the effect that they refuse to become the subject of research should they lose
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capacity, or that they did not want treatment or to be resuscitated, those directives would be treated in exactly the same way when it came to a decision being made.
Mr. Lammy: I am grateful to my hon. Friend. That is why I laid out the terms under which the advance decision would be considered. It would have to be valid and applicable. There is also a presumption that the doctor has to be satisfied, as stated in clause 26.
The last issue that I wish to discuss is involvement in research. The Joint Committee explicitly recommended that we cover research in the Bill, otherwise people without mental capacity would be denied its benefits and the legal criteria for research would remain unclear. I assure the House that the Bill's provisions are designed to ensure that research does not leave people who lack mental capacity open to exploitation or abuse.
We therefore propose that research should be allowed subject to strict controls. Any research must have the potential to benefit the person without mental capacity, without imposing a disproportionate burden, or must be intended to provide knowledge of the causes of a condition or of the treatment and care of people affected by the same or a similar condition, but with negligible risk or intrusion. In either case, the researcher must consult someone who cares for the participant about his participation in the project.
Mr. Duncan Smith: I am grateful to the Minister for giving way. Let me take him back through that decision. Let us assume that the individual who is incapacitated has no family and has an appointed deputy as their attorney. If that appointed deputy did not express the opinion that such research should not take place, the decision would be left to those who wanted to undertake the research. That is the change in the Bill, because the research would not necessarily have to be to the benefit of the individual concerned. Surely that is the critical issue.
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