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Mr. Lammy: In those circumstances, I doubt that the research ethics committee would let the process take place. I also doubt whether the deputy would not have made a contribution in that regard. Ultimately, what is important is that we have the criteria and that the process is not intrusive. It must be neither intrusive nor overly burdensome and it must go to the research ethics committee, within the existing framework, for final determination. There cannot be more guarantees than that.
Mr. Robert Key (Salisbury) (Con): That sounds like non-therapeutic intervention and it does not square with another part of the Bill that seems to say specifically that if, for example, there is a road accident or something happens where blood is spilt, and where there is currently no provision for the medical professions to take a blood sample from a person without capacity, it would be illegal to do so under the Bill, whereas the Minister has just said that there are circumstances in terms of research where it would be legal. Could he clarify that specific point relating to non-therapeutic intervention?
I confirm what the hon. Gentleman says; it would be wrong to deny it, but many groups,
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especially people with learning disabilities, campaigned to have such legislation drafted, specifically because they said they wanted to be involved in benefiting medical advance as regards their illness. Without that provision, we could not make those advances. It was a difficult balance. It is right to include the provision, but we must also have the right safeguards to ensure that the process is not intrusive or burdensome and that people are consulted, or if they cannot be consulted, that there is someone who can be. That will obviously involve the research ethics committee, and the court of protection might also have a view if there was a particular dispute or problem.
Is it not the case, and one of the nub issues with which the House may have to grapple, that the philosophical principle underlying the way in which the Government have framed the research clause introduces the clear possibilityto be sanctioned by the Housethat, in the public interest, research could be carried out on a person who does not have capacity to consent, but that there would be safeguards to ensure that it is not overly intrusive? That, as the Minister may agree, is a very difficult ethical issue and there is no point in trying to duck it. The House will have to grapple with that issue as the Bill goes through.
Mr. Lammy: I am grateful to the hon. Gentleman for the way in which he puts the argument. I am not trying to duck the issue. I said that we had included safeguards and that is the difference. I acknowledged the comments made by the hon. Member for Salisbury (Mr. Key) about non-therapeutic care, but it is important to emphasise the point made to the Joint Committee: people, especially those with learning disabilities, said that they wanted to be part of the process. Indeed, in a sense, it is appropriate that we are having this discussion on the day of Christopher Reeve's death. He was a huge campaigner on such issues. People like him say that they want to be involved in research governing their condition and in improving life for others.
The research provisions, like the rest of the Bill, aim to help us learn from the experiences of people who lack mental capacity, so that we can better empower, protect and support them. This is a Bill with potential to benefit all of us, whether as people planning for our future, caring for someone else, or acting in a professional capacity. It is an ethical, empowering Bill, which deserves the full support of the House. I ask that it be read a Second time.
Mr. Tim Boswell (Daventry) (Con):
I am grateful to the Minister for his attempts over an extended period to explain the legislation. If he came to the House with the assumption that he would have an easy ride, he will now have been disabused of it. Legislation should be our core business in the Housea somewhat old-fashioned view, but one that I strongly holdand every so often an issue arises, such as this Bill, that is relatively uncontroversial in party political terms but significantly or massively controversial in its implications, and which greatly and genuinely exercises a number of interest groups. It is perhaps unsurprising and even fitting that that should
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be so when the Bill deals with the loss of the essential capacity of human beings to act as autonomous moral agentssouls, if the Minister prefers, and I think that he and I would both be happy with that phraseology. Indeed, in certain cases the Bill can at least affect materially their life and well-being. Equally, the Bill deals with the necessity for another person to stand in and act for the person when that capacity is lost. There are moral challenges and hazards in that role, too.
I should like to emphasise at the outset the scale of the problem. The minimalist definition of capacity by function involves determining whether it is possible for the person in question to take a decision for himself, even if other actions are not open to him, rather than sweeping them all up and saying, "He can't manage, you know." Even on that reductionist view of capacity, there will be between 1 million and 2 million people in this country at any time to whom the Bill may apply directly. The number of decisions involving their daily carelet alone, of course, the material decisions that exercise so many peopleis almost infinite. The growth in the number of the extremely elderlythose over 85is likely over time to increase the figures, particularly in connection with dementia, while at the beginning of life the improved survival chances for babies lead, sadly, to a steady though not dramatic expansion in the number of people with learning difficulties, and in turn, those people are living to adulthood and maturity. Of course, I welcome those opportunities; they are a challenge, not a threat.
The House would do well to recognise the complexities of the situation, including, as well as the two life conditions that I have already mentionedlearning disability and dementiapermanent or temporary mental incapacity following trauma or as a result of long-lasting or intermittent mental illness. Of course, the emphasis of the functional definition adopted in the Bill is that capacity may be retained for some everyday matters, while it may not run to major decisions, for example, on the disposal of assets, or an individual's future residence or care conditions. Many of the conditions that I have described can co-exist. It is possible simultaneously to have learning disabilities and mental illnessalthough, of course, they should not be confused in any wayso an even larger number of people, other than the person involved, are swept into the issue as carers or health or social care professionals, as well as those required to administer a person's affairs in the business sense.
Perhaps I can give the Government a pointer by saying that, on reflection, I have decided that it is probably better to havefor example, in the provisions for lasting power of attorneythe opportunity to consider holistically the financial affairs of the person, together with their care, because it may be necessary for court decisions to be split, or even for those functions to be split among the individuals who are appointed for that purpose, either by the person before they lose capacity or by the court. We should at least consider that as a whole, rather than separately.
In view of the complexity of the situation that I have described, it is hardly surprising that the process that has culminated in this Second Reading began some 15 years agoeven the Minister will recall that there was a
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Conservative Government at that timewith the referral of the issue to the Law Commission in 1989 by the then Lord Chancellor, Lord Mackay of Clashfern. After six years, the Law Commission reported back, the Government consulted and published a White Paper, and then a subsequent White Paper, and there was a draft Bill, which was much assisted and expertly commented on by a Joint Committee. That led to many valuable amendments, including a name changenames matter, and to refer to capacity rather than incapacity, emphasising the positive, is a good signal. It also led to an up-front statement of principleswe may tinker with them in Committee, but at least they are along the right linesand to clause 58, a declaratory clause, about which we have already heard a great deal, in relation to murder, manslaughter, euthanasia and assisted suicide.
Mr. Damian Green: My hon. Friend will be aware that some of us, while accepting that there are many good things in the Bill and good principles behind it, are genuinely worried that, despite all the assurances that have been given, it could be a significant step on the road to legalising euthanasia, which would be wholly unacceptable to the House. I had hoped to be reassured by the Minister, but candidly, I was not. While he is on clause 58, will my hon. Friend refer in particular to the issue of the classification of food and fluids as medical treatment that could be withdrawn, because that goes to the heart of the worries that many of us have?
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