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Sir Teddy Taylor (Rochford and Southend, East) (Con): Is my hon. Friend aware that at a meeting in the House of Lords on 17 September, it was revealed that an attorney or a deputy, if given the power of attorney, will have the power under the Bill to order a doctor to refuse treatment in the form of food and fluids, which would effectively bring life to an end? If that is the case, and it has been set out clearly in the House of Lords by very qualified people, would it not simply be a form of euthanasia?

Mr. Boswell: It is difficult for any third party to order a doctor to take a particular course of action. My interpretation does not precisely coincide with my hon. Friend's, but there is a serious issue, which needs to be got right.

Frankly, I am more intensely in sympathy with the shorthand of the pro-life representations about the clause introduced to deal with research. It is one thing for a person with capacity to agree to be a guinea pig—to submit themselves to research—or even by advance decision taken with capacity to indicate one's readiness to be so, either after mental capacity is lost or after death by organ donation, but once capacity is lost and it falls to another person to decide, the principle of best interest cuts in and supervenes. I am worried that, however convenient it may be in relation to CJD, for example, or other terminal illnesses, to offer up a person without capacity for research, it cannot, as parts of clause 31 imply, be allowable to override the principle of best interest of the person involved and no one else.

Angela Watkinson (Upminster) (Con): I have looked at clause 31 very carefully and I can see nothing in it that ensures that the person on whom the research is conducted will benefit from it. It ensures that others might benefit, but not the individual concerned.
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Mr. Boswell: If I may say so, that is precisely the point that concerns us.

Mrs. Humble: Will the hon. Gentleman give way?

Mr. Boswell: I wonder whether the hon. Lady will forgive me and allow me to make a little progress. I am conscious of the time, and many Members want to speak.

In considering the Bill as a whole, I want to enter an important caveat for those seeking to oppose it root and branch. Some people have written to us in those terms and expressed themselves strongly, partly on euthanasia and also on the issue of representation. The Bill codifies practice that has arisen out of common law. I am genuinely grateful for the fact that, to complement my interests in this area, I shall have the assistance of the shadow Attorney-General, my hon. Friend Member for Beaconsfield (Mr. Grieve), in considering the Bill. It is from common law that we have the definition of best interest and also the occasionally contrary acceptance of advance decisions as overriding best interest.

It is also arguable—indeed, it is incontestably true—that things do go wrong under the present common law regime. To take a simple case, I think of the number of fraudulent cases of use or abuse of enduring powers of attorney, which is striking and alarming. It would be a brave Minister who argued that even when the law is codified, as the Bill provides, and with the best safeguards Parliament can find, nothing would ever go wrong again. Indeed, there is a genuine risk—we must watch this—that in seeking ever to tie things down more tightly for all the right motives, we might create instead of the flexibility characterised under common law a culture in which every move is litigated on, where it is impossible for anyone to do anything without going to the court of protection. That would be unhelpful for all concerned, both in human terms and in terms of the resources involved.

At this point I should expose more clearly what I feel is the inherent and unspoken tension in the Bill. There are, on the one hand, the interests of the person without capacity, and on the other, the interests of those looking after him or her. Before that is misconstrued, I say immediately that the whole House will want to recognise and celebrate the contribution of some 7 million carers towards those and similar problems. I mention in the same breath the work of doctors, nurses, social workers and other professionals who shoulder the burden of decision making in such cases. For the first time—this is one of the Bill's strengths—the Bill provides a comprehensive hierarchy and framework for their participation. There are real benefits in the clarification of that, such as for parents of an adult son with a learning disability who may for the first time have a formal locus in decisions taken about his care.

It is absolutely no disrespect to the Making Decisions Alliance, the Royal College of Psychiatrists and many others who have played such a part in bringing the Bill to its current state of readiness to recognise that their interests may not be identical to those of the person lacking capacity. Even if those bodies are acting by their own best lights, as I hope they are, their interests are still
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different. Indeed, they may conflict with one another—for example, when family members genuinely, and not necessarily for malicious or personal reasons, disagree about the regime or type of care, let alone about the disposition of family property. There may be differences between families and professionals, who have resources and budgets to consider. There may also be differences between professionals themselves. There is a systemic problem in that Ministers have confused the second opinion given by a professional about somebody with, for example, a psychiatric complaint with the work of an independent consultee, who may be a layperson, whose job is to represent that person's interests and who is not approaching the situation as a professional or someone with any axe to grind.

The Minister—understandably, given the pressure that he was under—was somewhat sketchy about the machinery in the Bill for resolving such issues. That machinery, most notably the relationship between the Official Solicitor, representing individuals, the public guardian and the court of protection, will require careful scrutiny. It is also clear that many interested parties are concerned about the rudimentary state of provision for truly independent advice given by someone with no axe to grind in the interests of the person without capacity. The issue of who will stand up and act only for the person in question, without any interest of their own, reads across into many of the most difficult issues in the Bill; for example, the concerns about euthanasia and research and those about the Bournewood gap.

The Bill does not take over those conflicts, but it needs to provide for them to be recognised and reasonably resolved. Above all, as I think the Minister will agree, those conflicts have ultimately to be resolved in the interests of the person without capacity. We do not see this as a Bill to whitewash the actions of carers or to protect them from the attention of the law, and I do not wish to caricature it as such. Most carers will not need that protection because they are acting in good faith and in the best interests of the person involved. We have to remember, however, that when push comes to shove it is the individual who is at the centre.

Although the Bill has already been 15 years in gestation, it is essential that it is scrutinised in detail and, put simply, got as right as human wisdom can make it in an imperfect and challenging world. That world is changing, too, so we have to achieve the right mix of safeguard and flexibility. If Ministers are disposed, and I think that this Minister will be, to approach this task in the right spirit, and not to cut corners or to rush, the scepticism that I have expressed today, which has been well represented and, indeed, enhanced by my colleagues, may in due course be converted into support. However, this is a case in which support is not something that Ministers can claim; it is something that they have to earn.

I close on a more personal note. The House would do well to remember that even though these are issues of law and we need to get them right—that is what Committee stage is for—there are real people out there, and even if they now lack mental capacity in the strict sense, they may not lack feelings and they are entitled to our respect. It is for everyone, their granny, their partner
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or their child. We should recognise too that for all our own confidence and self-assurance now, we may well go down the same road ourselves in the future.

In considering the Bill, with all the concerns that have been expressed, we should as a House collectively resolve to follow the good principles established in clause 1 and to add to them our deepest respect for those who may now lack capacity but were once autonomous human beings as we are, and with whom we, as individual moral agents, share the mystery of a common humanity. We owe them no less than that.

4.54 pm

Mr. Kevin Barron (Rother Valley) (Lab): I declare an interest in that I am a lay member of the General Medical Council, the regulatory body that polices doctors within the UK, advises them on how they should conduct their work, and gives advice on the education and training of doctors.

I support the Bill's aims of empowering adults with impaired mental capacity to make as many of their own decisions as possible and, where that is not possible, of ensuring that there are safeguards in place to protect adults when decisions are made on their behalf. The Bill is designed to cover all areas of decision making. Many organisations have waited a long time for it, and I am pleased that it is as comprehensive as it can be at this stage of the process.

In health-care terms, the Bill sets out how treatment decisions should be approached and, if necessary, taken on behalf of those who lack the capacity to take the decision themselves. Some people believe—wrongly, in my view—that the Bill is about euthanasia. A constituent, Mr. Michael Hill, has lobbied me on numerous occasions about the subject, but I do not accept his argument that the Bill introduces euthanasia and that I should vote against it. I shall be in the Lobby with the Government later this evening.

The Making Decisions Alliance, which comprises more than 30 charities that work daily with people with differing levels of incapacity, also disagrees with the view that the Bill is about euthanasia.

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