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Mr. Boswell: Does my hon. Friend agree, for example, that there is real concern, and some evidence of significant problems, in relation to nutrition and feeding? I am not talking about feeding by artificial means, but about ensuring that the food made available is palatable to and consumed by elderly patients, and not merely taken away when they have not consumed it?

Mrs. Browning: Yes. My precise concern is that this Bill does not lead to further such cases.

It is not always a question of the nursing staff. I have had experience of five elderly patients in the past 10 years who reached the end of their lives but spent considerable time in hospital before the end came. I will not regale the House with the individual cases, but they are a matter of concern. I remember visiting a 91-year-old aunt, who was a spinster so she had no children, and asking the nurse whether she had had anything to eat. The nurse said to me, "Oh, no, she's given up eating. She waved me away when I tried to feed her." I asked her what she was trying to feed her, and the food was obviously inappropriate. In the case of my mother, however, although I was critical of the way in which she was treated in the general hospital, she spent the last two months of her life in the Wokingham hospital—I name it because the nursing standards there were superb—where her food went from mashed, to pureed, to liquid.

I add as a caveat—the trouble with legislation is that it catches all—that when people reach the end of their lives, we must recognise that. I would not wish legislation to be changed in such a way that doctors suddenly felt that they had to intervene artificially, merely to preserve life that was clearly coming to a natural and, one would hope, peaceful end. People who die at home usually die without having taken either nutrition or fluids in the last 24 hours of their life, because the swallowing mechanism disappears. We need to make sure that whatever changes the Minister might make in Committee to deal with some real concerns, she does not go too far the other way so that people do not die peacefully and quietly at home.

I had an opportunity to spend a lot of time on the draft Bill in the Scrutiny Committee, and I have put in a bid to the whips to be amenable to me serving on the Standing Committee, as I want to pursue some of those matters in more detail. In the brief time allowed to me, however, I want to raise the question of the Bournewood judgment in the European Court of Human Rights on 5 October, which applied to an autism case. I bored the Scrutiny Committee rigid on autism cases, but it is an important judgment.

To summarise, the case was of an adult man living with paid carers. He was taken to a psychiatric hospital, which he was not allowed to leave, and remained there for five months. He was autistic and deemed to be mentally incapable of consenting to treatment. The medical profession, in treating or dealing with him, did not regard the paid carers as necessarily the people who could be helpful in deciding how his case should proceed, when of course they were the very people who knew more about him than anyone else. They could
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have advised the doctors, and the doctors should have listened to them. That was not the case, however, and having exhausted the courts in this country, they eventually took the case to the European Court of Human Rights.

One of the difficulties with the Bournewood case is that it should not be possible for a hospital to detain somebody who is compliant but incapacitated, and then ignore and ostracise the people in that person's life who could have not only given advice to the professionals dealing with him, but been of support to the gentleman while he was in hospital. There were long delays before he was allowed access to them. When the Committee took evidence, the Minister of State, who is in her place, while talking about the safeguards of nominated persons, said that she expected that carers would be the nominated persons. The carers in this case immediately wrote to me and quoted what she had said during that evidence-taking session, saying that they were not so safeguarded.

There is, therefore, genuine concern—especially now that we have heard the Bournewood judgment from the European Court of Human Rights—that, as the Bill stands, the Bournewood gap would not be closed but would be wider than ever. It is one of the Committee's recommendations to the Government that they should ensure that the Bill closes the Bournewood gap.

I realise that we are considering someone who was admitted to a mental health hospital and that a Mental Health Bill exists as well as the measure that we are discussing. I am a member of the Scrutiny Committee for the Mental Health Bill, and there is a genuine read-across between the measures. The hon. Member for Bolton, South-East (Dr. Iddon) mentioned the Law Society's suggestion that the two Bills should run in tandem. However, when we read the draft Mental Health Bill, the Institute of Psychiatry said that the Mental Capacity Bill should be on the statute book before we dealt with the Mental Health Bill.

I therefore hope that the Minister understands, especially in the context of the Bournewood judgment, that we have to get the matter right in the Mental Capacity Bill because there is another Bill that will increase the medical profession's powers to detain people for an unlimited period. Getting it right in the Bill that we are considering is important not only for the people that it will affect, but for getting the next measure right.

Mr. Boswell: Does my hon. Friend agree that one of the concerns is that the Mental Capacity Bill will not have the same safeguards as those that normally exist in mental health legislation, and that people in the Bournewood situation might therefore be at a disadvantage compared with those who are compulsorily detained?

Mrs. Browning: Yes, indeed. That is why we want to ensure that the Bill is right, and it is the reason for my asking the Under-Secretary of State for Constitutional Affairs whether he would examine the matter before the Bill reached Standing Committee, and whether the Committee would consider carefully the amendments that need to be made in the light of the Bournewood judgment. That is important to me. I would not dream
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of supporting a Bill that did not close the Bournewood gap because it would affect far too many people—not only those on the autistic spectrum, but others.

I want to make only one more point. I hope that I shall have more opportunity to contribute in Standing Committee if I am successful in getting on to it. I want to consider medical research. The Joint Committee's report to the Government supported, with some caveats, the opportunity for research to be conducted on people who lack capacity. As the Bill is currently worded, it would be for third parties to authorise such research. It was not the unanimous decision of the Committee; we were not all content with that. Many reservations were expressed, including by me. Lord Rix expressed reservations in another place. As hon. Members know, he wears his Mencap hat on such occasions. It is not for me to speak for him, but I would not like hon. Members to believe that every member of the Committee was content with the provision on medical research.

I am open to some persuasion about non-invasive measures. For example, if research is simply a matter of keeping a database of patient histories, I perceive some advantage in it. However, invasive research, including brain scans, perhaps goes too far. I should like the Minister to consider reverting to the subject in some detail in Committee. Despite what the Government have done in the Bill, provisions need to be tightened much more if they are not to give an open sesame to specific types of research.

People say that such research goes on all the time and that we do not know about it, but my goodness, let us consider what happens when we find out about it. One has only to remember the pathology cases that have been discovered in various hospitals in recent years, unbeknown to even the next of kin. Perhaps it is laudable for us to decide, while we have capacity, which we may lose later, that we are happy to be part of some form of experimentation, but that is as far as I would want to go without much tighter provision than that currently in the Bill.

I support the Bill's broad principles but, like other hon. Members, I believe that if we do not get some matters right, my view of it will be overturned. I want it to work and I am willing to work with the Government to make it work on those issues about which I am genuinely concerned. I shall abstain tonight on Second Reading. I hope that once the Bill has been through its other stages, I shall feel comfortable about supporting it on Third Reading.

7.25 pm

Mr. Tom Clarke (Coatbridge and Chryston) (Lab): As always, I was impressed by the hon. Member for Tiverton and Honiton (Mrs. Browning), but I was a little surprised by her final sentence. Given the questions that she raised in the light of her experience and commitment, which is beyond question, I was surprised that she feels that the House should not give the Bill a Second Reading thus allowing us to move on to deal with the issues that she and other hon. Members raised. For example, the right hon. Member for Chingford and Woodford Green (Mr. Duncan Smith) asked several
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pertinent questions—there is no reason why they should not be asked. However, given that we have waited 15 years to deal with such issues, is not now the time to tackle them?

Today's debate has impressed me on the whole, but I am disappointed that we have not focused all that much on disability, which this important measure addresses. I declare an interest. With Lord Rix, I am the joint chair of the all-party group on learning disability. I acknowledge that the hon. Member for Daventry (Mr. Boswell) mentioned learning disabilities, and that the hon. Member for Sutton and Cheam (Mr. Burstow) spoke about them especially effectively. His speech focused on learning disabilities, carers and issues that are profoundly relevant. Indeed, they are the very issues that led me to develop an interest in the Bill.

I hope that the hon. Member for Sutton and Cheam will forgive me for repeating his point, but he was right when he said that, were the Bill about assisted suicide and were some of the claims about its main intentions true, he could not support it. That is my view. I do not believe that the Under-Secretary of State for Constitutional Affairs, who made an eloquent and well-informed opening speech, is so Machiavellian as to think, "I shall introduce a measure called the Mental Capacity or Incapacity Bill to con people into supporting euthanasia." It is right to make that point at an early stage in my comments.

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