---

David Taylor (North-West Leicestershire) (Lab/Co-op): I agree with what my hon. Friend has said so far—that the Bill makes some important advances in the area of mental capacity—but does she agree that more work needs to be done to define exactly what "the best interests" are? Should there not be greater focus on the physical well-being of the patient defined in clinical terms rather than too much reliance on the wishes and beliefs of third parties who cannot possibly understand what physical well-being might be?

Ms Munn: My hon. Friend invites me to discuss the issue that has predominated in the debate, but I do not really want to do so. I want to talk more specifically about people with learning disabilities who face ongoing issues about capacity in their day-to-day lives. I am not talking specifically about patients in hospital or circumstances where someone faces a life or death decision, because I believe that the Bill goes wider than that and poses important issues for us all to address.

I chair the all-party group "Voice", which works closely with the all-party group on learning disabilities. It looks particularly into how people with learning disabilities can have a voice and be protected from abuse or other negative aspects in their lives. It seeks to help them to exercise decision-making powers wherever possible. Issues of capacity may well be lifelong issues. It is good to see that the Bill focuses on support and how to empower people to make decisions.

However, in common with other hon. Members, I want to express my concern that the Bill makes no provision for advocacy. Without advocacy, people with learning disabilities are likely to have their feelings and views ignored by those who take decisions about their lives. The Bill rightly accepts that people may have some capacity to make some decisions, but not others. It also rightly acknowledges that some people may be able to indicate a preference, even if they cannot make a decision. Without an advocate, though, there are no safeguards in circumstances where there is a difference of opinion between the person who is said to lack capacity and the decision maker.

I am concerned that the Government are in danger of creating confusion by using the term "independent consultee". The Bill says that the function of the independent consultee is to give advice to the body making the decision about the person's best interests. Their view could well be different from that of the person concerned. Advocacy means something different: it means putting forward the person's views and wishes, whatever they are. The person who is advocate stands aside from their own view and their own expression of what they deem to be someone's best
 
11 Oct 2004 : Column 87
 
interests. That is not their role. They help the person to express their views and wishes and, crucially, they are there to ensure that those views and wishes are heard.

That view may be "unwise": it may not be what a group of other individuals—whether they be professionals, family members or other supporters—might collectively sit around and agree to be in the best interests of the person. Nevertheless, it is that person's view. An adult is surely entitled to their view, whether or not they have or lack capacity. At the very least, that view should be heard.

Clause 4 sets out the criteria for determining what is in someone's best interests, which includes permitting and encouraging

"the person to participate . . . as fully as possible".

Without advocacy, however, a person may be wrongly assessed as not being capable of making a decision or communicating in the decision-making process. Moving straight to consultation without advocacy is, in my view, missing out something enormously important.

Finally, I want to raise issues about the concept of reasonableness in clause 5 because that notion also creates problems. As long as someone reasonably believes that a person lacks capacity and as long as they reasonably believe their decision is in the best interests of the person, they can make whatever decision they like. If a person is said not to have capacity, how can the decision be challenged? Who will challenge the decision on the person's behalf? We are not talking only about major issues—the specific treatment and life or death issues that we have debated in detail today—but about day-to-day happenings that determine lifestyle. For example, medication or other treatment may need to be ongoing for the person to live a full life.

For too long in our society, adults with learning difficulties have been judged by what they cannot do rather than what they can do. Empowering them to do more is important. In my view, advocates are essential to ensure that those people's voices are heard and properly considered along with the voices of others such as professionals and carers. I therefore ask the Government to give more serious consideration to the issue of independent consultees and independent advocates. Without advocacy, the voices of people with learning difficulties will not be properly heard.

7.59 pm

Dr. John Pugh (Southport) (LD): The Bill has three inextricably linked qualities: it is important and wanted, it is conceptually complex and it is capable of misrepresentation and possible misuse. In consequence, it is a Bill on which we must have a degree of surety. The mind of Parliament needs to be clear, or as clear as it can be in print. That may not, at the end of the day, be clear enough. I shall argue that we are not there yet. Critics of the Bill clearly still abound, despite much pre-legislative scrutiny. Supporters of the Bill have reservations about issues such as advocacy and the living will, and what actually goes into testaments that people make in advance. It is has also been mentioned that there are legislative opportunists who would subvert some of the purposes of the Bill.
 
11 Oct 2004 : Column 88
 

Mature criticism of the Bill must begin with an understanding of the task that the Government have set about. To be fair, it is a monumental and enormously difficult task. We can appreciate that intellectually and see how fraught any attempt would be to wrap the law around the myriad complex and highly emotional situations that involve the issue of mental capacity.

I speak with some limited experience. Many decades ago, I worked in an old-fashioned mental hospital. I must surely be the only parliamentarian to have guided—I use the word advisedly—somebody into a padded cell; to have seen a straitjacket being used; and to have helped to administer electroconvulsive therapy. I can therefore say that I have some feeling for the issues.

No one disagrees with the Government about the need for statute law on the issue of mental capacity. No one is happy with the common law as it stands and, worse still, no one is happy with the common practice. People are also unhappy to leave the issue to the vagaries of judges.

The mentally incapacitated are, according to the Government, those of impaired mind. They form a spectrum from the comatose to the uncomprehending. Puzzlingly, according to the Bill, they also appear to include those incapable of communicating a decision. Such cases can theoretically fall outside both categories and I am not sure why they are mentioned specifically. However, assuming—it is a big assumption—that we can fairly and uncontentiously define what mental capacity amounts to, the big question is how we must then treat the mentally incapacitated.

There are two decent-looking ethical answers to that question. Both are given in the Bill and, indeed, by most benevolent and reflective people. One answer is that we should consult people's best interests and the other is that we should do as they would wish. Unhappily, they are not the same. Our view of a person's best interests can conflict with our view of their personal wishes. That is not true only for people with mental incapacity: it is true for all of us at all times. What is certainly and absolutely true is that if we have no knowledge of someone's wishes, we should act in their best interests. However, the Bill appears to say that expressed wishes can trump views about best interests, in the interests of personal autonomy, provided that those wishes are well grounded and well established and require nothing that an unimpaired individual could not fairly expect.

My problem is that although it is a moral truism to say that we must act in somebody's best interests, it is not intuitively obvious that we must always act on past wishes, especially if they conflict with views of current best interests. In fact, the legislation itself allows living wills and advance testaments to be overridden in certain circumstances, such as when a person's best interests are established to be otherwise. I suggest that a remedy to that would be to make advance directives and living wills of persuasive force rather than authoritative force. In that way, they could include richer content and positive instructions about care, treatment and feeding.

The crux of the matter is that the best interests of the mentally incapacitated—be they the dying or the mentally impaired—is not universally a matter of common agreement. I have yet to be satisfied that there is an objective test. By that, I mean a test that if applied by every judge and every authority would produce the
 
11 Oct 2004 : Column 89
 
same conclusions. We do not have such a test. We have some rules that might help everyone arrive at the same conclusions, but we have no guarantee that they would do so. That is why the legislation includes a device known as a lasting power of attorney. Uncertainty that people might not judge one's best interests right leads to a desire to express a preference for someone who is most likely to safeguard one's interests. However, that provokes the further objection that the situation could change and the position of the person with an LPA could be subject to challenge.

The Bill's solution to those nightmare conundrums is to allow all major decisions to be subject to review and challenge or to be hedged around with guidance and guarded by various kinds of regulation. It is felt that the courts will therefore be able to arrive effortlessly at a truly objective decision. However, I do not know how a court can come to a clear, uncontentious decision in case after case without clear uncontentious principles to follow.

---