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Mr. Barron: The hon. Gentleman asks me a specific question, and the simple answer is that I do not know. Perhaps the Minister will be able to clarify the matter, or perhaps the Standing Committee might be a better place in which to explore it. I am more concerned about the guidelines for clinicians operating out in the field. As I understand it, the situation that the hon. Gentleman has described would be a matter for them.
Mr. Lammy: I should like to clarify this point for my right hon. Friend. The advance decision in such a case would have to be specific and clear to make it valid and applicable. The effect of clause 26 would be that the doctor concerned would have to be satisfied in that regard, and this highly subjective test would mean that there would be a presumption of the preservation of life. On that basis, a suicide note could simply not be valid or applicable.
Mr. Barron: I thank the Minister for that. I understand that the guidance that has been issued to doctors by the GMC is not too descriptive about what the doctor would have to do. The doctor would have to take a decision on each individual case, along with the other people who were involved in it.
Mr. Duncan Smith:
We seem to be having this debate by proxy, but as we are into it, perhaps I can use the right hon. Gentleman's time. Other issues are not answered in the Bill. In particular, the doctor concerned will have to make such a decision in a very compressed time scale. If there is a doubt, do we honestly think that the doctor will have time to consider the document, to consider the
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person who has power of attorney, and to have discussions and consultations? Of course he will not. He will be worried about acting and getting it wrong: about what will happen if he resuscitates and is promptly proceeded against in a court of law. Some serious issues are not answered at all in the Bill.
Mr. Barron: It may be that the progress of the Bill will decide that. The right hon. Gentleman should know better than most in the Chamber that we are here to pass laws, and that the laws we pass are not always accepted out there. Any legislation that we pass will be tested at some stage, and in such areas, it is more likely to be tested than not. Most people would accept that. When we consider the amount of time spent on examining such areas, and on bringing forward the General Medical Council's guidance in 2002, it was inevitable that it would be challenged. It has been challenged, and it is now up for appeal. The General Medical Council is appealing against the Munby judgment, including the view that best interests should be determined on wider grounds than intolerability. It believes that that is quite narrow. I have not consulted the Oxford dictionary for its definition of intolerability, to see how wide it goes, but the GMC believes that it is narrow. Wider issues will come into play.
The judicial review judgment indicates that, within certain constraints, patients have a right to require treatment to be provided for them, either at the time that the treatment is needed or wanted, or in an advance directive. Clearly, that will have a wide impact on the provision of care, including for patients whose capacity fluctuates or who need help to make decisions. Its chief impact on the Bill relates to the use of advance statements. The Bill envisages only circumstances in which a person may make advance refusals of treatment, although a statement of their preferences would be used in determining their best interests. The right to require treatment goes further than that, and the result has been challenged in appeal. The GMC's view is that a judgment as to what medical treatments are appropriate to offer is for a doctor to make. That must take into account not only what the doctor considers clinically to be in the best interests of the patient, which will of course involve taking into account the patient's concerns, values and preferences, but, inter alia, the over-arching duty of care to offer only treatments which are Bolam-compliant, and most importantly, the patient's assessment of his or her own best interests.
Mr. Hammond: The right hon. Gentleman said that a doctor would be required to consider what was in the patient's best clinical interests. My understanding of one of the objections to the Bill is that it is not narrowly defined in relation to what is in the patient's clinical best interests, and that it asks doctors to make a much wider judgment about what is in the patient's general best interests.
The hon. Gentleman has latched on to two words from a sentence. Given that we have no time constraints this afternoon, let me repeat what I said: the judgment must take into account not only what the doctor considers clinically to be in the best interests of the patient, but the patient's concerns, values and preferences. That is a lot wider than clinical interests. Perhaps he should listen a little.
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Another part of the appeal will be the issue of seeking decisions from the courts. The implications of Mr. Justice Munby's judgment are not wholly clear. It is probable that, as the judgment stands, all decisions to withdraw life-prolonging treatment would be referred to court, unless the decision was taken in accordance with a patient's valid advance directive about the circumstances in which they would refuse treatment. That would be the case at least until the uncertainties about court referral were clarified in the case law. That matter is also included in the GMC's grounds of appeal. It is relevant to the Bill and the code of practice, which suggest that the Court of Protection would provide
"a judicial forum of last resort to deal with particularly complex decisions or difficult disputes which cannot be resolved in any other way."
I hope that the Bill will be passed, and stress that nobody can legislate to cover every eventuality in the circumstances that we are considering and in future months and years. People who need the Bill, and to have their capacity judged as best as it can be in all circumstances, whose voices have not been heard not only for decades but for centuries, who were once locked away and felt that they had little or nothing to give society, need as much support as the House can give them today.
We should support the measure, with all the question marks. I do not believe that it represents euthanasia by stealth. The organisations in the Making Decisions Alliance would not support such a Bill for one minute. Given that we have waited 15 years and that the Joint Committee has scrutinised the measure, it is time to get on with giving it a Second Reading, considering it further in Committee, sending it out there and leaving it to others. I have no doubt that lawyers will queue up to examine it in future, but we have travelled a long road to get such a measure, which empowers people who have little or no power in our society. Although we may not believe that it is perfect in every way, we have a duty to pass the Bill.
Mr. Paul Burstow (Sutton and Cheam) (LD): I speak in favour of Second Reading and I want to give some of the reasons for that. Although there are undoubtedly legitimate and honourable concerns, which have been expressed in interventions, many should properly be explored and tackled in Standing Committee and later on Report.
If I were to base my contribution on my mailbag or my e-mails in the past month, my speech would be about euthanasia and the right to life. I do not take those issues lightly; they are crucial moral questions, which undoubtedly and rightly stir strong emotions and feelings in the House and among our constituents. However, like the hon. Member for Daventry (Mr. Boswell), I do not believe that the Bill promotes euthanasia. I would not support it if it did. I also agree with him that it is legitimate and right for this place to debate the common law position that was reached in respect of the Bland judgment. We should explore it, its
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meaning and whether it is the right position for the law to reach. However, I do not believe that that is a ground for rejecting the Bill out of hand today.
It would be a grave mistake to view the Bill as being about only end-of-life decisions. It is about much more: the quality of a person's whole life. Medical advances may add years to life but only when we put the individual's needs and wishes at the heart of decision making can we be sure that we add life to those extra years.
To view the Bill as dealing with only the end of life would also do a grave disservice to the millions of people in this country who, from birth, after an accident or through an illness, find their capacity to make or communicate decisions impaired, fluctuating or lost.
It would be a grave injustice to those people if the Bill were lost and the inadequate status quo retained. Why do I say that? Earlier, the Minister paraphrased the 1995 Law Commission report, which concluded:
"The law as it now stands is unsystematic and full of glaring gaps. It does not rest on clear or modern foundations of principle. It has failed to keep up with social and demographic changes. It has also failed to keep up with developments in our understanding of rights and needs of those with mental disability."
As matters stand, the people whom we are considering do not count even as second-class citizens. People who lack capacity are deemed by others to have no legal rights. They become non-people. That leaves the most vulnerable, often elderly people, open to abuse.
The need for reform of the system of proxy decision making for people who lack capacity has been well argued and, as we have heard, explored in detail over the past 15 years. It is one of the most sensitive and contentious areas of social policy, involving fundamental personal rights, issues of personal welfare and life or death decisions. It concerns what many regard as the first duty of any Governmentto protect and to enshrine in law the rights of the most vulnerable in our society.
At present, the law is clear about the rights and protections afforded to a person who has the capacity to make decisions for themselves. However, the law is far less clear about the status and rights of people who lack capacity to make decisions for themselves. The Bill would give all those who lack capacity new rights to maximise their preferences on how to lead their day-to-day lives. It has the potential to redefine radically the way in which incapacity is treated in law and in wider society. When the Bill goes into Committee, and I hope that it does, I hope that we will explore how it may be further improved to reinforce the paramount importance of placing the individual at the heart of decision making.
Until now, there has been no legal framework for the type of sensitive advocacy necessary to ensure the delicate balance between individual autonomy and protecting vulnerable adults. While the Bill represents a significant improvement on the present position, it still falls well short when it comes to rights of advocacy support. Instead, it offers a new rolethe independent consulteewhich at best is a halfway measure. It is not adequate and we could not support it as it stands. I hope that the Minister's willingness to continue consulting and listening will produce changes to the Bill that will extend a right of advocacy to those who are protected by the Bill.
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Because of the scope for misunderstanding within this area of public policy and the opportunities that can therefore arise to misrepresent the purpose behind such legislation, the Government were right to publish a draft Bill, which was scrutinised by a Committee of peers and MPs last year. I had the privilege of serving on that Joint Committee with a number of hon. Members who are in the Chamber for the debate and I look forward to serving on the Standing Committee that will examine the Bill.
The Joint Committee expressed strong support for the legislation in its report that was published last November but it made a number of important recommendations to strengthen the safeguards in the Bill. Some of those recommendations have been accepted and I hope that, as the Bill progresses through the House, yet more of the Committee's ideas and recommendations will be accepted.
Some have written to me to urge that I vote against the Bill on the ground that it promotes euthanasia. That is a travesty of the truth. The Bill is not without its flaws but it can and should be improved, not rejected out of hand. I do not believe that organisations such as Age Concern, the Alzheimer's Society, the Down's Syndrome Association, Headway, Help the Aged, Mencap, Mind, the National Autistic Society, Rethink and the many others that support the Making Decisions Alliance would support the Bill unless they saw it as a means of extending the rights and protections of vulnerable people.
There are legitimate concernswe have heard them alreadyabout the precise effect of the clauses on the powers of deputies and appointees and on advance decisions to refuse treatment. The courts have already recognised a person's right to specify in advance both what treatments they would want and those that they would not want. As we have heard, the recent decision by Mr. Justice Munby in the case of Mr. Oliver Burke has emphasised the importance of doctors following the individual's known wishes. Paragraph 77 of the explanatory notes to the Bill states:
"Many general forms of advance statement or 'living will' will be important and relevant as 'past wishes' of the person for the purposes of the best interests checklist in clause 4."
Given that the explanatory notes say that such general, non-binding statements should be taken into account, why is it not possible for the Government to accept amendments to the Bill that would give express recognition of such statements? They would be an important further safeguard and reinforce the well established legal right of the individual to give and to withhold their consent to treatment.
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