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Mr. Paul Goodman (Wycombe) (Con): The right hon. Gentleman is correct, but it is worth noting for the record that the I Decide coalition, another group representing disabled people, is opposed to the Bill.
Mr. Barron: I do not doubt that many people oppose the Bill for various reasons. I intend to quote what some groups have told Members of Parliament. I hope that, if the hon. Gentleman wishes to put another case, he will have time to do so.
The Making Decisions Alliance wrote to MPs stating that it does not believe that euthanasia is
"either the intention or a consequence of the proposed legislation. The Government has made clear that euthanasia and physician assisted suicide are both illegal in the UK and will remain so."
I am satisfied with that. The alliance continues:
"This was confirmed by the Joint Parliamentary Committee which examined the Bill".
No doubt, hon. Members on both sides of the House who were members of that Committee will speak in the debate. I wish that I had been able to hear their speeches
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before making my own, although it is nice to get a speech out of the way early. The alliance says that that view was also
"confirmed . . . by Lord Filkin, the Minister responsible for the Bill. The Government has also introduced a clause in the Bill that states 'nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (which prohibits assisting suicide).'"
Miss Widdecombe: May I put to the right hon. Gentleman a very simple case? If food is refused to a person, that person starves; if fluid is refused, that person dies of thirst; but if treatment is refused, that person may or may not die. If the Bill permits under the term "treatment" the withdrawal of food and fluid, death will result. That is why some of us claim that a consequence of the Bill, intended or not, is the introduction of euthanasia.
Mr. Barron: I do not agree with the right hon. Lady's analysis. The matter is better decided far closer to the individual in question than through the rhetoric of debate in this place.
Mr. Barron: I see the hon. Member for Congleton (Ann Winterton) rising to intervene. She intervened with a not entirely dissimilar question during a debate in Westminster Hall in 2002. I replied:
"In some rare cancers, nutrition and hydration speed up the patient's metabolism, hastening death and increasing suffering. It is best that clinicians make the decision in those cases, not us sitting here"—[Official Report, Westminster Hall, 22 May 2002; Vol. 386, c. 81WH.]
in Parliament. I still believe that firmly. It is important to talk to clinicians who work in this area. There are occasions when doing what has been suggested is not in the patient's interest and there are other occasions when it is very much in the patient's interest. It is not a decision that I should take, and I do not think that Parliament can do so. We should recognise that.
Mrs. Humble: Does my right hon. Friend agree with the Joint Committee's report, which differentiated carefully and explicitly between food and drink as part of basic care, to which every patient has an entitlement when in hospital? Artificial nutrition and hydration, through case law, has been determined as being treatment. We must be extremely careful not to confuse the two.
Mr. Barron: My hon. Friend is right. I read the Joint Committee's report quite a few months ago. The distinction must be made. Perhaps the Chamber is not the best place in which to draw the distinction.
As I have said, I am a member of the General Medical Council. It welcomes the Bill. It believes that it can enhance the right of patients who lack the capacity to decide issues for themselves. It believes also that it will clarify the role and responsibility of doctors and others who care for those people. Of course, the council recognises that this is a complex and sensitive area that overlaps with other legislation and common law.
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Further issues are being raised by the judgment concerning the GMC's guidance called "Withholding and Withdrawing Life-Prolonging Treatments: Good Practice in Decision-Making" as a result of the case that was brought against it by the state on the application of Oliver Leslie Burke versus the GMC. I shall speak about that judicial review and the potential implications that it may have for this legislation.
We should examine how the Bill will interface with other pieces of legislation. The GMC has some questions, as will hon. Members, about some of the issues that will arise. There is a need to clarify the protection for patients who lack capacity and are compliant with the treatment that is offered. The draft Mental Health Bill provides for formal reviews and inspection of services that are provided without consent. There is no parallel in the Bill that is before us. There is a concern that patients who are treated under the Bill will have fewer safeguards and protections. We must ensure that proper mechanisms are in place for taking and reviewing decisions and auditing services, which have been highlighted in the ruling of the European Court of Human Rights involving the patient detained by the Bournemouth community and mental health NHS trust. I know that the Minister said in an intervention that that took place last week. I have not seen a report of the full judgment but that is an issue that will have to be addressed by the Government while the Bill is considered in Committee.
There needs to be clearer provision for people aged 16 and under 18 years of age. Those in that group will have rights under the Bill, which I hope will be enacted, and under the Children Act 1989. There needs to be greater clarity when it comes to which legislative framework will take precedence in a certain range of circumstances. Clarity is also needed in relation to some powers and rights—for example, the power to appoint a person with lasting power of attorney, or to make an advance decision statement, being accorded only to people aged 18. There are issues involving interaction with other legislation and they will have to be clarified.
I move on to the impact of the judicial review in terms of the legislation that was brought forward in 2000, or the potential impact of the judicial review on the GMC guidance, to which I have referred. The GMC has welcomed much of Justice Munby's judgment, but has decided to appeal as it is concerned that certain key issues remain unclear. It has a duty to provide doctors with clear guidance to assist them in their decision making, but with the outcome of the judicial review uncertain, it is particularly difficult to judge the effect of the case on the Bill. However, the following matters raised in the judgment are also covered in the Bill. The first is the issue of best interest, which has been raised on numerous occasions, and the second is that of intolerability.
Mr. Justice Munby states that intolerability should be the touchstone for best interests, in deciding whether to provide an incapacitated patient with life-prolonging treatment. One of the principles on which the Bill is based is that decisions should be taken in the best interests of the incapacitated person, as set out in clause 1(5):
"An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests."
The Bill also defines the issue that is to be considered and the people who must be consulted in determining what would be in that person's best interests. These are set out in clause 4(5) and—importantly, in the context of medical decisions—they include:
"the person's past and present wishes and feelings,
the beliefs and values that would be likely to influence his decision if he had capacity, and
the other factors that he would be likely to consider if he were able to do so."
These provisions do not include the test of whether an option would be intolerable. I assume that the Bill would need to be amended to accommodate a test of intolerability as a measure of best interest in the context of life-prolonging treatment. This issue is quite fresh; the judicial review was granted only a few months ago, and it will now be appealed in the courts. This will have an impact on the interpretation of best interests in this particular case.
Mr. Hammond: Will the right hon. Gentleman explain his understanding of what the Minister said earlier in relation to decisions expressed by an individual lacking capacity before the event? In response to an intervention about suicidal intent, I think that the Minister said that it was inconceivable that an intent expressed earlier would be binding on a clinician in such circumstances. Is it the right hon. Gentleman's understanding that the Bill proposes that, in every case following a suicide attempt, any earlier decision that purported to refuse treatment would automatically be invalid as a result of that suicide attempt?
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