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Miss Widdecombe: Is my right hon. Friend aware that the concept of futile treatment appears in the code of practice, which includes assisted food and fluids?
Mr. Duncan Smith: I agree with my right hon. Friend—I always make a point of doing so. That is the reality of the situation.
I return to the original point that I made: the elephant in the room is the position on the withdrawal of fluid and foods. Much of the Bill ignores that single fact, and until it is dealt with in the Bill, as it should be, many of its measures will be dangerous rather than helpful. I simply refer the hon. Member for Blackpool, North and Fleetwood (Mrs. Humble) to my earlier comments.
Let me take the question of attorneys slightly further and consider deputies. I am worried about the appointment of deputies who might have no specific knowledge or understanding of the circumstances of the individuals whom they are appointed to oversee if those people have no family or have not appointed attorneys at the time—I think that the hon. Member for Sutton and Cheam (Mr. Burstow) raised this point. It is likely that a deputy will be a social worker of a district. That person is not likely to be medically qualified, but will have the power to make decisions as an attorney, as it clearly says in the Bill.
It is worth referring to clause 4 because we must consider whether someone who does not know a patient's background will be able to reach decisions serving his or her best interests. I remind the Minister that clause 4 lists elements that such a person would need to know. How would a deputy be able to
"consider, so far as is reasonable ascertainable . . . the person's past and present wishes and feelings"?
The present wishes and feelings would not be known because the individual would be incapacitated, and if deputies did not know the individual in the past, they could not take a view on past wishes. However, deputies will nonetheless retain the power to do that. That situation illustrates an additional problem with the Bill—and once again the question of whether food and fluids represent medical treatment is key. The fact that a person who does not know an individual may interpret his or her wishes in the way in which the Bill anticipates is a strange concept.
Mr. Lammy:
I hesitate to interrupt the right hon. Gentleman, but he is confusing the roles of attorneys and deputies. It is important to emphasise that an attorney will be appointed by a person who has capacity yet worries about lacking it in the future. It will most often be the case that the attorney will have been married for many years to the person who comes to lack capacity. A deputy is a person appointed, and consistently scrutinised, by the court who will be given more restricted powers under the Bill to ensure that several of the problems that the right hon. Gentleman envisages will not arise. An attorney must be given powers by a person when he or she has capacity if
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decisions such as those that the right hon. Gentleman raises are to be made. It is important that we have clarity on these points.
Mr. Duncan Smith: There is no question of clarity about what the attorney will do, but I simply say to the Minister that that does not change anything. The individual will make legally binding decisions, which is the problem that lies at the heart of the Bill. It would not be a difficulty if we did not face the problem of omission, as the Minister knows, and until that is dealt with straight up in the Bill, he will face the challenge time and time again. All hon. Members will be worried and anxious until the issue is dealt with.
I told the hon. Member for Blackpool, North and Fleetwood that I would address advance directives. I have my reservations about such documents. We said that they should be up to date and deal with the concerns of those who worry about being incapacitated, but they are also incredibly inflexible. Many people worry about being a burden. They may have watched a television programme or heard a radio programme on the subject or know something about someone who has become a burden. They often think of medical treatment in terms of unnecessary intervention, such as resuscitation, which they rightly do not want to happen to them.
Where does it say in the documents that the individual concerned has a positive wish to die by starvation or dehydration? I doubt that that will ever be written into such a document, yet it will be subject to interpretation. Until it is clarified that that option is not available, the individuals concerned will have no understanding that the decision not to have what they consider to be intrusive medical treatment, such as being resuscitated unnecessarily many times or being subject to an intervention that they do not want because it would lead to them being a burden, will cause their demise—their death—as a result of withdrawing the very essentials of life. No one will write that in. Again, if the Government want to deal with that, they should ensure that their view is clear to all concerned.
I am grateful to the hon. Member for Heywood and Middleton for mentioning suicide. It is a huge grey area. The Minister said that it would be clear because doctors would not necessarily accept the decision made in the case of a suicide even if a living will had been made prior to the suicide attempt. I am in no way as confident. It is a matter of dispute whether a doctor in that pressured moment will make the sort of decision that may lead to them facing a court for whatever reason, perhaps because they have carried out medical treatment that the person later says was intrusive and wrong and that they had specifically said should not happen.
The second consideration is what happens in the case of an individual who knows of the living will, who is present at the time of the suicide and who does not call the ambulance because it is their understanding that that is the wish of the person committing suicide. We know from doctors that the vast majority of suicide cases are not about wanting to die, but are cries for help. Most want to live. That is the reality. Very few head off in a suicide attempt deliberately to die. They do it because they need help. If they made a living will earlier and someone interprets it incorrectly, does that not give that person a reason not to follow through because they think that that is the expressed belief? There are
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concerns about advance directions—the living wills—that may lead to the wrong decision being made in a number of cases.
The Government have also not dealt with the problem of research. The Bill changes accepted practice. In almost every case, intrusive research takes place if it is of benefit to the patient. We are going to allow an individual who is not able to express his views or opinions, and who is subject to other people's views and opinions, to have research carried out on him—albeit reasonable and likely to be negligible and not unduly invasive or restrictive—that is not necessarily undertaken as a benefit to that patient.
Mr. Grieve: My right hon. Friend raises a difficult issue. I hope that he will forgive me, but I do not entirely agree with him. The question of whether research should be carried out has been resolved between the doctors and the relatives, and research has taken place in circumstances in which it was of no direct benefit to the patient. The Government are trying to codify that while providing safeguards. In the process, they have highlighted the stark reality that we have tolerated an ethical system that may be highly questionable.
Mr. Duncan Smith: I accept my hon. Friend's view, but the Bill codifies something that is fundamentally wrong. Such action could have been challenged previously, but it will be impossible to do that in future. Whether the Government set out with good intent is not the issue. The problem is that they are locking into legislation bad practice that is not in the best interests of an individual who is incapacitated and unable to make the decision. Whether we are dealing with the withdrawal of fluids and food or research on an individual, the simple test is whether we, as people who are conscious and able to make such decisions, would allow those procedures to be carried out on us. I guess that the answer to that would be no in most cases. Why should it be any more the case that the wish of an incapacitated individual should be overridden in such a way? That is where the Bill falls down.
There is another point to consider, which the Government may not have picked up. It is clear that there is a contradiction between road traffic legislation and the Bill. There may be problems with where the truth lies. Listening to my hon. Friend the Member for Salisbury (Mr. Key) and other hon. Friends, it appears that there are serious contradictions, which I hope the Government pick up before the Bill makes it to law, if it ever does.
As I said, I did not come to the Bill with existing deep or profound views. I simply read it and discussed it with others over the past four or five days. I reason that there are so many fundamental flaws at its heart that we cannot allow it to go through as it stands. To do so would make the problems that we face worse, not better. I understand that the Government are trying to sort out the problems and that for 15 years, as others have said, we have needed to find a way to protect those who are incapacitated across a range of issues and problems, but until we deal with the single fact that euthanasia is not just by commission, but is also by omission—until the Government wrestle with that problem and put it down
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once and for all—we will have a deeply flawed Bill that could lead to serious hurt to those who need our help and not our condemnation.
6.17 pm
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