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Mr. Duncan Smith: Does the hon. Gentleman accept that one of the problems that people have with the Bill is the interplay between an individual and someone who has power of attorney on their behalf and who interprets what are considered to be a person's wishes prior to their present condition? That exposes a problem at the heart of the Bill. Legally it is possible that someone may say that they wish not to have treatment, but it has never been possible legally for them to prescribe treatment for themselves. That is the issue. It is the withdrawal of treatment, as decided by the attorney, that causes the problem.
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Mr. Burstow: That is undoubtedly an issue that we need to give careful attention to, and to explore in some detail in Committee. Indeed, I was very struck by an earlier intervention by the right hon. Gentleman concerning the courts' role in appointing someone to act in that regard. We must consider carefully whether courts should be able to nominate someone to make such decisions away from the courts. So he has made some important points that need to be considered in Committee, and which should lead to further amendments to the Bill.

On advance refusals and advance directions concerning the form of treatment that a person would like to receive, the Disability Rights Commission points out in its briefing to Members that there is a challenge in providing individuals with impartial advice when making decisions about conditions of which they have no experience when they choose to refuse treatment, or, indeed, when they decide what sort of treatment they might want. Advocacy to explain the reality of living with impairments and health conditions, and of life opportunities, is essential. There is substantial evidence showing that medical professionals are not best placed to provide this advice, due to biased assumptions and discriminatory attitudes towards disabled people and their quality of life, expectancies and chances. I share the DRC's concern, and it is important that we ensure that the Bill addresses the question of sensitive advocacy, independent of those who are closely involved in the decision-making process, not least the commission.

It is said by some who have contacted me that the Bill fails to provide an adequate definition of "best interest" and that it is too vague, particularly in respect of end-of-life decisions. There is of course the perfectly honourable view that there are no circumstances in which death can be in a person's best interest; however, translating that view into practical legislation is another matter. For example, how would such a view affect the delivery of palliative care? When is the line crossed between relieving pain and shortening a person's life? I do not believe it possible or desirable to set such matters out in statute—to second-guess every possible scenario that should be considered when determining what is in a person's best interest. Ultimately, that is a role for the courts in looking at the individual's circumstances at the time and their wishes, feelings and preferences.

The Bill does offer the courts and others important signposts in the statement of principles in clause 1, and in the checklist in clause 4. It is simply not true to say that it does not advance and clarify the nature of best interest; in fact, it provides a framework that hitherto existed only in piecemeal common law. The principles promote a real shift in the attitude toward empowering vulnerable people to make as many of their own decisions as possible. They make explicit the legal presumption of capacity and the need to take all practical steps to support a person in making a decision. They also make it explicit that the decisions taken must be the least restrictive of basic rights and freedoms.

However, there is one further principle that would guard against others making assumptions about the quality of life of a person who lacks capacity. As drafted, the Bill does not address the way in which decisions on behalf of, or actions for, a person who lacks capacity can be affected by the proxy decision maker's biased assumptions about, and discriminatory attitudes
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towards, disabled and older people. For example, research has pointed to ageist assumptions in the care and treatment of older people, and to the reliance on chronological age as a proxy for a person's recuperative capacity. We should also note the poor practice that has been allowed to develop in respect of "do not resuscitate" orders, which are being used without prior consultation, for example. There is a need for age discrimination legislation that goes beyond dealing simply with employment issues, and which deals with goods and services, not least in respect of health and social care.

Mr. Boswell: I am following the hon. Gentleman's argument with interest and a good deal of sympathy. There is a clear corpus of legislation against discrimination on the ground of disability. In the hon. Gentleman's view, would someone making decisions with an inbuilt bias—conscious or unconscious—on behalf of a person without capacity already be at risk under the Disability Discrimination Act 1995? Is it necessary to legislate further on this matter?

Mr. Burstow: That, in a way, will be the purpose of the amendments: to get Ministers to clarify whether the law currently provides such protection for people with disabilities. If it does not, I propose an amendment that would ensure that people are not treated less favourably as a result of such discriminatory attitudes and beliefs.

Throughout the scrutiny of the draft Bill it was put to the Joint Committee that a "general authority to act", as it was called in that draft legislation, should be separated from the more formal arrangements needed for authorising major decision making about a person's health, welfare or financial affairs. The Committee recommended

The Government have redrafted the provisions and renamed the clause, but considerable concern remains that its terms are still unclear and too widely drawn. For example, would a paid or family carer be taking an action under section 5—if the Bill becomes an Act—when a person without capacity is being moved from a family home to a residential care home? The Joint Committee recommended that there was a need for a sustained and comprehensive training programme for professionals and a public information campaign for informal carers to be implemented in order to provide the relevant groups with an accurate understanding of what the general authority was all about.

I believe that such a programme of publicity will be essential if the rights enshrined in the Bill are to be realised in practice, but such a programme is not of itself sufficient. There is also a need for independent advocacy and if there are concerns that a person may not have capacity in relation to a particular decision taken at a particular time, the presumption of capacity must mean an assessment of mental capacity. Let me provide an example of what I mean.

A whole host of assessments are made under statutory provision—for example, community care legislation, delayed discharge legislation and mental health
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legislation—that should be prefaced by an assessment of a person's capacity. We should not treat people who lack capacity as passive recipients of care. It is essential that the Bill plays a part in ensuring that they are not treated in that way in future. I hope that the Standing Committee will have the opportunity to examine how the Bill fits in with existing and future mental health statutes and case law.

Reference has already been made to last week's judgment in the European Court of Human Rights and the Under-Secretary's response was a matter of some concern to me. He suggested that the Department was in a process of consideration, but he did not convey any sense that that consideration would be speedy. It would be useful if, when she replies to the debate, the Health Minister, the hon. Member for Doncaster, Central (Ms Winterton), could tell us whether it is the Government's intention to report back to the Standing Committee on the Government's intentions in respect of the Bournewood judgment.

Mrs. Browning: I agree with the hon. Gentleman. The Scrutiny Committee made it clear in its report that the Bill should meet the Bournewood gap. Having heard the European Court's judgment in the last week, it is now incumbent on the Government to table amendments to deal with that before the Standing Committee sits.

Mr. Burstow: I could not agree more with the hon. Lady. It is essential that such amendments be tabled. My understanding, on the basis of what others have said, is that the judgment has further widened the gap, not narrowed it. The challenge that the Government face is now even greater and I hope that the Minister will give us some comfort on that matter when she winds up the debate.

The aim of the Bill is clear in seeking to maximise a person's opportunity to make their own decisions. That should also apply to the whole system of lasting powers of attorney, which I want to touch on briefly. The Bill states in clause 4 that donees are required to sign only that they understand the duty imposed on them to act in a person's best interest, but the Bill does not extend the duty to include the principles that are set out in clause 1. Surely it should be an overriding duty to help the person to make their own decisions if they can. The LPAs should apply only when the person cannot make their own decisions. I hope that the Government will entertain amendments in that respect.

The principles should apply not only to LPAs but to enduring powers of attorney—the EPAs that currently operate. There are up to 80,000 of them in place at the moment and many more are drafted and waiting to be registered at some later date. Managing the transition from the EPA to the LPA system will take time, but it must be right for vulnerable people to enjoy the increased protection that the Bill will afford them at the earliest possible moment. That is why it is hard to understand why the Government intend to exclude the workings of EPAs from clause 1 and schedule 4 provisions. Surely, the new higher standards set in the Bill should apply. Particularly where an EPA has not yet been registered, there should be scope for upgrading it quickly to the status of an LPA. The new system must, and does, have more safeguards than the old one. In the evidence given to the Joint Committee, we were told that
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20 per cent. of financial transactions under the present system of enduring powers of attorney reveal some abuse. We need a robust and publicised system for monitoring and spot-checking both EPAs and LPAs. Many people would find it hard to understand why the Bill would not allow an individual who is bankrupt to be appointed as a financial attorney but would not provide for a check on whether he or she is on the protection of vulnerable adults list. People on the POVA list have abused, neglected or otherwise harmed vulnerable adults or put them at risk of harm. It must make sense that before signing off an LPA the donor has the right to check the POVA list. Furthermore, it should be a requirement that the Public Guardianship Office check the POVA list. In all cases where the donee is on the POVA list that should alert the office to place the LPA in a high-risk category for monitoring purposes.

I hope that the Minister will be able to respond to my final concern when she winds up. Why is it that the system of appointeeship for looking after benefits will remain outside the principles, protections and safeguards of the Bill? Is that the product of silo thinking, with the Department for Work and Pensions unwilling to engage with this person-centred law reform? It must make sense to have one set of rules and safeguards. How can it be right that benefit appointees will have more powers than court-appointed deputies and attorneys, without any of the safeguards? As well as not having to adhere to the general principles, appointees are not monitored and an appointeeship is revoked only if and when concerns are raised by third parties. If there is no budging the DWP, the lack of clarity about how the two systems will work alongside each other should at least be sorted out. I hope that that can be done.

The Bill has been 15 years in the making. Legislation is needed now to clarify who can and cannot make decisions regarding the personal welfare, health and financial interests of someone who lacks capacity, and to enable people to plan ahead in such situations. The Bill is not perfect, but it provides long-overdue legal rights and protections for some of the most vulnerable people in our society. The Bill has the potential to strengthen the decision-making rights of disabled people. To realise that potential, the Bill should receive a Second Reading so that it can be subject to detailed debate and amendment in Committee. The Bill is about real people, their right to life and their right to a good quality of life. I hope that the House will support it so that we can make it an even better Bill.

5.37 pm

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