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Mr. Iain Duncan Smith (Chingford and Woodford Green) (Con): It is a privilege to follow the hon. Member for Heywood and Middleton (Jim Dobbin). I listened carefully to what he said and agreed with all of it, and in particular with his concluding comments. It was an excellent speech and I hope that he will seal it in an envelope and pass it down the Bench to the Minister for his immediate attention—I certainly would.

This time last week, I did not intend to speak in this debate. Like, I suspect, many right hon. and hon. Members, I had taken the Government's assurances at face value. I was busy drafting letters to constituents with bland assurances that the Bill did not in any way lead to an extension of euthanasia or any consideration of that for those who have to take the decisions. Only when I read my constituents' letters more carefully, before finalising my reply, did I decide to go back and have a long look at the Bill. I did that before, on Maastricht, and look where that got me. I promise my party that I will not make too much of a habit of this, or become more rebellious—well, we will see.

Having studied the Bill, I began to have serious concerns and doubts. I do not usually speak in such debates, so I come with a genuine concern about what I have read. Today, my concerns have grown rather than shrunk as a result of what I have heard both from the Minister and from others on both sides of the House. The key point is that the elephant in the room in this debate is the Bland followed by the Byrne judgment, which the Bill makes no attempt to deal with. I give the Government credit—as I know that the previous Conservative Government tried this and found it too complex—for trying to meet genuine concerns among people who care for those who are incapacitated either temporarily or, arguably, permanently. We need to establish how such people's rights are to be measured and dealt with, and I do not doubt for a moment the Government's good intent. I do not believe that they set out to make euthanasia more applicable or expand its remit, but that does not mean that it may not happen.

The problem is that the Government are creating legislation that will overlay a serious problem, in that the issue of euthanasia is already out of the bag. By omission, we already have the position whereby people can be denied food and liquids as part of their medical treatment, so defined. That issue underlies every single comment that I will make today and that Government Members with similar concerns have made.

The Government have set up a scheme under which a lasting attorney can be appointed to make medical and other wide decisions about the well-being of a patient when that patient becomes incapacitated, as defined in the Bill. I understand that the intention is to enhance the patient's autonomy, but the problem is that patients might have changed their minds, and in many aspects of the legislation it is impossible to take account of that. No matter what has been said, such attorneys have, legally, the power to make decisions on behalf of patients, and one such decision can be to withdraw
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treatment if they believe it to be the expressed and implicit wish of the patient before they became incapacitated, and that withdrawal of medical treatment can include the withdrawal of fluids and food. In essence, the attorney has the power to send the patient to his death. Nothing in the Bill prevents that.

It is not feasible to say that the doctor will be able to challenge that, because the doctor or other medical staff would have to make such a challenge legally, and in many cases time is of the essence. In an overstretched health service, with NHS staff busy with the next case even as they deal with the current one, no one will want to go down that road. Medical staff will not want to refuse to abide by such a decision, knowing that later they could be charged with assault simply because they applied treatment that the attorney had decided against.

Mr. Lammy: Clause 26 specifically says that the doctor does not incur liability unless he is satisfied that the advance decision is valid and applicable. That is a very high standard in law and, indeed, means that there is a presumption in favour of life. I understand what the right hon. Gentleman said about the Bland decision, and that he would like it overturned, but I wanted to put that on the record, and the fact that the Bill does not alter the current common law position.

Mr. Duncan Smith: I understand what the Minister says but, with respect, the Bill also legislates powerfully for the attorney. It says categorically:

including their well-being in terms of their medical treatment. The Minister is saying—I suspect that he genuinely believes it—that there is the possibility that medical staff will be prepared to stand by their decisions and take the challenge to the necessary court. Even if that might happen in exceptional circumstances, I suspect that the reality is that it will not because the decision may be marginal, and given the Bland judgment the doctor will not deem it necessary to make that challenge and will not do so. The greatest injustice involving the power of attorney lies in those cases. Although I am not saying that the Minister does not believe his assurances, they do not stack up given the legalities in the Bill.

I am worried about where the measure will lead because examples from the other side of the Atlantic seem to show where we are positioning ourselves. There was a case involving Marjorie Nighbert of Florida, who had given power of attorney to her brother. She later had an accident and was taken to hospital. She was clearly incapacitated and thus unable to make decisions that could change any of her previous views. There was a debate on whether treatment should be withdrawn. The court decided that she was not capacitated although the nursing staff at the time believed that she had given sufficient indication that she wanted to receive fluids and food. Her brother, however, believed that treatment should be withheld because he thought that she would never recover. He said that he believed that because he recalled that while she was watching a programme on the specific issue, she said that if she were ever in such a
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condition, she would not want medical treatment to continue to be administered. The court upheld that on the basis that it completed the process in which she had been originally engaged and indicated her true intent. Fluids and food were thus withdrawn, and she has subsequently died of either starvation or dehydration, or perhaps a combination of both.

No doubt all hon. Members will say that such a situation could not happen here. However, the Bill opens the door to that process. I was struck by a comment made by Lord Filkin, I suspect in response to Lord Alton and the hon. Member for Heywood and Middleton in June. It was conceded that under the Bill, if a person, for example, told his flatmate that he would not want to be resuscitated, that could be considered to be an advance decision to refuse treatment. The Government accepted that such a decision did not have to be written, but could be oral, and that a previous written statement could be elaborated on by an oral opinion, despite the fact that the only person who knew that might be the flatmate or the attorney at the time. There would be no way of checking whether the statement was true.

Andrew Selous (South-West Bedfordshire) (Con): I was pleased that my right hon. Friend brought the case of Marjorie Nighbert to the House's attention. I understood that she was restrained in her bed to prevent her from raiding other patients' food trays. Unless the Bill makes it absolutely impossible that such a situation could happen in this country, we must vote against it.

Mr. Duncan Smith: My hon. Friend makes his point powerfully. I did not want to take the case any further because I only wanted to illustrate the problem that such protections are not in the Bill. Although we say that such a situation could not happen here, the Bill does not make that clear, so the problem is that we may well find ourselves in that position.

There are also cases in which there are question marks over the motivation of those with power of attorney. The Bill does not deal with the possibility of people obtaining general benefit from an individual's demise after the withdrawal of fluid or foods due to their decision to withdraw medical treatment.

Mrs. Humble: The right hon. Gentleman will be aware that the Joint Committee examined advance directives in great detail and considered how they could be up to date and well informed, rather than being statements made years previously, perhaps before new medical advances were made. He says that he is dissatisfied with the detail in the Bill, but I am not sure whether he has had the opportunity to examine the draft code of practice, which addresses many such issues. I am sure that it would reassure him.

Mr. Duncan Smith: I have looked at the code of practice. I want to return to the question of these wills—as it were—in a moment because the situation has not been sufficiently dealt with or tightened up in the Bill. The code of practice is all very well and good, but I am
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considering the power that a doctor will have to challenge such decisions given the circumstances in which they operate at the time.

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