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David Taylor: Does the hon. Gentleman agree that Lord Brandon's 1990 definition could be adopted or adapted? The Bill could state that an operation or other treatment is in the "best interests" of a patient only if it saves their life, ensures improvement, or prevents deterioration in their physical or mental health. Surely that would be a reasonable start. Could not such a definition be of use?

Andrew Selous: I certainly like the sound of that a lot more than the Bill's current definition, and it would make a welcome starting point. I hope that the Government Front Benchers have heard what the hon. Gentleman said, and that they will incorporate it into our deliberations in Committee. It is worrying that in certain circumstances, "best interests" could be deemed to be other than the currently expressed wishes of the patient or person concerned.

I want to finish by touching on the position of attorneys and deputies, to which reference has been made. Perhaps the Minister will comment in her reply on another case from the other side of the Atlantic—the
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worrying one of Mrs. Schiavo. Her attorney was her former husband, who seemed not to have her best interests at heart when she came to rely on his taking decisions on her behalf. Her case went to the Florida court, although I am not entirely clear as to what then happened. However, I would be very grateful if the Minister gave me some assurance concerning attorneys and deputies whose position appears to have been compromised.

9.28 pm

Mr. Dominic Grieve (Beaconsfield) (Con): This has indeed been a remarkable debate. Every contribution was measured and, in a sense, without side. In a way, Members were not arguing for or against the Bill; rather, they were simply saying what they felt was important in relation to it, and indicating at the end of their speeches their feelings about it. Indeed, there have been powerful speeches not only from many of my hon. Friends but from all parts of the House. I hope that I will be forgiven if, in the time available, I do not succeed in mentioning them all, but each one made a powerful contribution to the issues under consideration.

I should say to the Minister at the outset that I shall abstain when the time comes to vote at 10 o'clock. I shall do so not because I want to duck out, but because I have taken at face value the Minister's assurance that there will be ample opportunity in Committee—I hope and believe that I will be able to participate in those proceedings—to look in detail at the issues that we have touched on today, and hopefully to do so in a consensual environment, with a Minister and a Government who are willing genuinely to listen to the points being made, so that the Bill can be treated as non-party legislation. If the Minister will do that, I am sure that the Bill will go forward. I am quite convinced of the need for a Mental Capacity Bill and I am quite sure that there are matters in the Bill on which legislation is very badly needed.

Andrew Selous: My hon. Friend says that he hopes that the Government will take the Bill forward in a non-party-political way. Does he agree that one way to achieve that would be to withdraw any Government whipping in Committee?

Mr. Grieve: That is a pertinent point to raise. I appreciate that the Government must have a view about the business that they wish to take through, but they might well wish to consider taking that course of action. I cannot believe that, if they did adopt that approach, the Bill would be damaged in any irreparable fashion during the course of its passage. The Minister might well want to discuss that issue; it is a matter of sufficient importance that we might try for once to make such an extraordinary exception.

I was explaining why I thought that the Bill was desirable. Although I am a barrister, I am not particularly familiar with the inner workings of the Court of Protection. It has long been a matter of common knowledge that the systems in place for the legal supervision of those without mental capacity are woefully inadequate, very costly and very slow. The Government's intentions to set up a new structure are therefore greatly to be commended. They are doing something that it has been necessary to grapple with for years and years.
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I include in that the system of attorneys and deputies, without which the streamlining procedure, requiring constant referral back to court for quite mundane decisions, cannot be brought into being without the catastrophic consequences that I mentioned—in respect of time, lawyers' fees and costs to estates that are diminishing daily through administrative costs. Indeed, it has almost approached the point of scandal, as some Members will have been made aware by the correspondence that they receive from their constituents.

The Government are greatly to be commended, as I said, but the problem—we cannot get away from it—is that the Bill also seeks to engage with a series of definitions of areas of the utmost greyness, which pose huge issues of conscience, ethics and morality. It has been said that the Bill is not about euthanasia, but we have touched on it. The Minister is quite right that the Bill is about many more things than that, but we cannot get away from the fact that among the central issues in the legislation are the definition of the circumstances in which people should be allowed to die and in which we should take action to prolong life. It is inescapable that hon. Members should wish to pay great attention to those issues.

If I have one regret about the course of this evening's debate, it is that we did not hear enough from those who are broadly happy with the Bill as it stands. They will all turn up at 10 o'clock to support the Bill on Second Reading. That is their entitlement but, with the notable exceptions of the hon. Members for Sheffield, Heeley (Ms Munn) and for Cannock Chase (Tony Wright), we have not had from Back Benchers the sort of input that I would have liked to have had to provide some degree of reassurance about their views and why they believe that the Bill's present framework is satisfactory. We were rather left with those who have understandable objections, which, I have to say, I share in substantial measure.

These matters are not, of course, easy. The hon. Member for Cannock Chase made a particularly powerful speech. If I share nothing else with him—in fact, I probably share many things with him—it is that I had to take a decision about ending the life of a child, my child. That is very difficult, and I recall that I did not think at the time that I was practising euthanasia. However, I have to accept that, with the help of doctors, I was making a series of judgments that were not easy. In reality, these are daily decisions that have to be taken by many people. Sometimes they are very difficult; at other times they appear to be crystal clear. We must be very careful not to be too prescriptive.

What I found so interesting about Mr. Justice Mumby's decision in Burke was that for the first time it was acknowledged that the argument has gone only one way in the past few years. It has been about people describing the circumstances in which their lives might be terminated. But what about the people who say, quite aggressively, "I want my life to be prolonged, at all costs."? The judgment suggested that they had an equal right to say that and their wishes were determinative. Those are Mr. Justice Mumby's words. That is a challenge, because some people might argue that in some circumstances one could go over the top in attempts to prolong life. When General Franco died, there was a strange and macabre pantomime in which
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efforts were made to keep him alive over several days by bringing in various doctors, although it was clear that the end of his life had arrived. We must consider that such circumstances may arise.

What troubles me about the Bill is, first, that it seems to start with the supposition that the right to shorten one's life through directives and living wills is one that should be challenged only in certain discrete circumstances. Secondly, we cannot escape the problem with the judgment in Bland, which is that to many people it seems strange and offensive that food and drink should be reclassified as treatment so that depriving someone of them should be acceptable. It is all a matter of degree. If someone is likely to die within a few hours, it is pointless, intrusive and improper to take measures to prolong their life—many would think. However, as the hon. Member for Crosby (Mrs. Curtis-Thomas) pointed out in a powerful speech, it is easy for us to make value judgments about the quality of life of others that can be unjustified or, at any rate, unjustifiable. I am not sure that the Bill as presently drafted succeeds adequately in reconciling those conflicts.

I am left with the impression that over the past few years we have seen a curious coarsening in attitudes to the value of human life within the caring environment. I think of my aunt dying in a leading London teaching hospital in the mid-1990s. I was shocked by the cavalier approach to the elderly dying of nursing staff. That seems to be reflected in many letters that I have had on the subject from constituents about standards of care of palliative medicine in hospital. It seems to range from the outstanding, often in hospices, to events the description of which make one queasy. That may be due to a mistaken interpretation of the judgment in Bland, which was made on discrete issues.

We would do well to bear in mind the consequences of our own actions. If we are to codify the law and not allow it to progress of its own accord, we should remember that it would then be much more difficult to change it. Admittedly, it is not easy to change a House of Lords judgment, but it can be done. I ask the Minister to bear that in mind, because we will have to consider the whole issue with enormous care. What are best interests and how should they be defined? Can the circumstances in which it is acceptable to withdraw care or food and drink be narrowed down more than they are at present in the Bill? Most people see a big distinction between the decisions that have to be taken in caring for the dying and a decision that gratuitously hastens death when there is otherwise a reasonable prospect of life continuing for some time.

Those are very difficult matters, but I was particularly impressed by the comments of the hon. Member for Wyre Forest (Dr. Taylor) in that regard. Nor should the Under-Secretary avoid the fact that a number of Members came into the Chamber unpersuaded, but by the end of the evening they were, on the whole, disturbed by what is proposed. The force of the arguments presented shows that he must bear that in mind.

My second point is about research, on which less has been said during the debate but about which I have even more concrete anxieties than about the other clauses. Earlier, in answer to my right hon. Friend the Member for Chingford and Woodford Green (Mr. Duncan Smith), I said that I had some sympathy with the
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Government because they wanted to codify practices that, I fear, have been going on for a long time. Historically, testing, experiments and research on those who did not have mental capacity frequently took place simply with doctors explaining to relatives what was involved, assuring them no great harm would come to the patient and carrying out the procedures.

The Government have taken the perfectly understandable view that such a practice is unacceptable and that we must have a codification procedure. However, the result is that, in the starkest and clearest way, the House will be asked to legislate that somebody who will not themselves receive any direct benefit from an experiment should nevertheless be made subject to it for the public good. I should dearly love to skate away from that proposition, but if I were confronted with it head-on I should have to tell the Minister that I found it unacceptable. It may benefit thousands of people; it may benefit the sum of human knowledge and potentially benefit others. However, unless there was a clear-cut indication of willingness by that person, before they lost their mental capacity, that they wanted that procedure to happen in those circumstances, my conscience would come up against the buffers and nothing would induce me to support such a proposal.

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