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Mr. Duncan Smith: Does my hon. Friend agree that a simple test would be to ask everybody in the House whether they were prepared to have themselves experimented on, not for their own benefit but for the good of mankind? I suspect that the answer would be no.

Mr. Grieve: That may be the case, although it is worth pointing out that the forms of experiment proposed are limited to those that are not supposed to interfere with our general well-being. None the less, I agree with my right hon. Friend; it is a startling proposition.

I want to give the Minister the opportunity to wind up properly so I shall bring my remarks to a close. Heaven knows that these matters are not easy. The Minister will have every support from the Opposition in trying to achieve a piece of legislation that stands the test of time and commands widespread respect, but the Government really must take on board the fact that such matters cannot be written on tablets of stone. They must listen and they must be willing, during the passage of the Bill, to allow it to evolve naturally on the back of the participation of all Members who want to take part.

9.43 pm

The Minister of State, Department of Health (Ms Rosie Winterton): The debate has been informed, interesting, passionate and, on occasion, very moving. Obviously, Members have strong views about the Bill and they have expressed them today. I apologise in advance as I know that I shall be unable to answer all the points that Members have raised, but I shall try to address some of the main issues.

As the Under-Secretary of State for Constitutional Affairs, my hon. Friend the Member for Tottenham (Mr. Lammy), set out so clearly in his opening speech, the Bill has the potential to improve the lives of millions
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of people. During the course of the debate, we have perhaps moved away from addressing some of its real benefits.

As the hon. Member for Daventry (Mr. Boswell) said, at some point in our lives many of us are likely to be affected by mental incapacity, whether personally or because of caring responsibilities. Up to 2 million people currently lack capacity, including more than 700,000 who suffer from dementia in the United Kingdom and 145,000 adults in England who have severe and profound learning difficulties, but the current law that affects people who lack capacity has undoubtedly developed in a piecemeal way. Many people therefore find it confusing and unclear, as was so eloquently expressed by my hon. Friends the Members for Blackpool, North and Fleetwood (Mrs. Humble) and for Sheffield, Heeley (Ms Munn).

It can be difficult to make arrangements for the future, when a person might lose capacity, and the legal framework supporting carers in their decision making is also unclear. It is not always obvious who can do what. Some people think that they can do what they like because they have a family relationship. Others may feel that they are restricted by the law, so they will do too little. The Bill will change that; it will empower and protect not only vulnerable people, but those who have to make decisions on their behalf. That is where, in a sense, we could perhaps have concentrated a little more of the debate today.

I am glad that the hon. Members for Sutton and Cheam (Mr. Burstow) and for Daventry and my hon. Friend the Member for Cannock Chase (Tony Wright) agree that the Bill will not permit euthanasia and that there was confirmation that the Bill will not change the current situation with regard to the Bland judgment—something forcefully endorsed by my right hon. Friend the Member for Coatbridge and Chryston (Mr. Clarke).

My hon. Friends the Members for Heywood and Middleton (Jim Dobbin), for Crosby (Mrs. Curtis-Thomas), who made a very moving speech, and for Bolton, South-East (Dr. Iddon), and the right hon. Member for Chingford and Woodford Green (Mr. Duncan Smith), and the hon. Members for Congleton (Ann Winterton), for Gainsborough (Mr. Leigh), for Southport (Dr. Pugh), for Southend, West (Mr. Amess), for Wyre Forest (Dr. Taylor), for Wycombe (Mr. Goodman) and for South-West Bedfordshire (Andrew Selous) all contributed to the debate and raised the issues of euthanasia, the Bland judgment, advance directives and best interests.

Many hon. Members suggested that perhaps the Bill in some way was the thin end of the wedge in respect of euthanasia. I can assure the House that that is not the case. The Bill will not allow anyone to ask someone to kill them; rather, everything in the Bill is about ensuring that vulnerable people are respected and valued. The Bill will strengthen the protection available to vulnerable people. It will establish in statute that the person's best interests should be at the centre of every decision, and that will work together with the doctor's existing duty to preserve the patient's health and life. Clause 58 makes it clear that nothing in the Bill will affect the law relating to murder, manslaughter or the operation of section 2 of the Suicide Act 1961.
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Mr. Gordon Marsden (Blackpool, South) (Lab): Many hon. Members have touched on the Bland judgment today. Having heard the breadth of concern expressed in the House that the Bill's good intentions may be skewed, will my hon. Friend at least offer to go away and reflect on what more might be done to ensure that the Bill explicitly states that nothing in it will make the removal of intravenous food and fluids easier?

Ms Winterton: We could not get much clearer than what is stated in clause 58, and I will come to the Bland judgment in a minute.

The Bill will create a new court of protection as an arbiter when disputes cannot be resolved. The code of practice makes it clear that persistent vegetative state cases, like now, will still go to court. The Bill clarifies the current common law on when someone can refuse treatment in advance and provides for people to plan ahead to refuse specified treatments, but tough hurdles must be passed to ensure that the advance decision was made with capacity, and is still valid and applicable in the circumstances.

It is not convincing to argue that a statutory definition of basic care and treatment is necessary. I repeat that the Bill is silent on artificial nutrition and hydration, focusing on a person's best interests. Statutory definitions can be inflexible and certainly need to stand the test of time over many years. We all know that technology and practice in patient care develop quickly, as does our understanding of the difference between basic care and treatment. As the House of Lords made clear in the Bland judgment, ANH is provided as part of a package of medical care. As my right hon. Friend the Member for Rother Valley (Mr. Barron) said, the provision of ANH is not always beneficial, and certain conditions, including certain forms of cancer, can be made worse by it. Defining ANH as basic care could force doctors to provide it when it is not in the patient's best interests.

We must never lose sight of the fact that the Bill requires all those providing care for a patient to act in that patient's best interests, and if necessary that can be challenged in the courts. Non-provision of ANH, if providing it was in the patient's best interests, would be negligence.

Mr. Grieve: The Minister makes an important point, but I find it a strange proposition that reclassifying artificial nutrition and hydration as basic care would make it impossible to withdraw it in the last hours of a patient's life. I would be grateful to hear much more detail on that in Committee, because surely the point being made by the hon. Member for Wyre Forest (Dr. Taylor) was that to withdraw it in such circumstances would in fact be perfectly all right.

Ms Winterton: As I said, the position in the Bill is exactly the same as the current position in common law. Judges, doctors and others make these difficult decisions all the time. We cannot necessarily define in statute all the issues that are being developed.

My right hon. Friend the Member for Rother Valley, the hon. Member for Tiverton and Honiton (Mrs. Browning) and others raised the Bournewood and Burke judgments. I assure the House that we are considering the implications and will make decisions as quickly as possible.
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The hon. Members for Sutton and Cheam and for Caernarfon (Hywel Williams), my hon. Friends the Members for Blackpool, North and Fleetwood and for Sheffield, Heeley, and my right hon. Friend the Member for Coatbridge and Chryston all raised concerns about advocacy. We all agree that advocacy can provide helpful support for vulnerable people, but we believe that a statutory right of advocacy for all would be inappropriate. More than a million assessments are made every year, many of them for straightforward issues such as mobility and whether someone needs a new zimmer frame, and it seems disproportionate to introduce a statutory duty to bring in an advocate in such a case.

Advocacy goes far wider than mental incapacity, covering older people, children and those whose first language is not English. This Bill is not the vehicle for promoting advocacy for all. It has to focus on the most vulnerable people who lack capacity. However, we listened to the concerns of the Joint Committee and other stakeholders who said that we should offer support to those who are especially vulnerable, and that is why we have introduced the independent consultee, a form of advocate for the most vulnerable when there are especially serious decisions to be made. Of course, I assure hon. Members that we will continue to consult on developing the important new system, so I hope that that reassures them.

Several hon. Members, including the hon. Member for Beaconsfield (Mr. Grieve), raised the question of research, and we included relevant provisions in the Bill in response to the Joint Committee. The Bill now says that research involving an incapacitated person may be carried out if it has the potential to benefit the person without disproportionate burden, or if it is intended to provide knowledge about the treatment, conditions or care of people with a similar condition. In such cases, there must be negligible risk to the incapacitated person and the research must not be unduly invasive.

A further safeguard in the Bill is that a researcher must find someone who is interested in the incapacitated person's welfare to consider his or her interests and advise whether the incapacitated person should participate while taking account of his or her wishes and feelings. The code of practice sets out how the independent person should operate. If that does not happen genuinely and if the research ethics committee is not satisfied on any of those points, it must not approve the research proposals. Clause 33 sets out additional safeguards that mean that research cannot take place if the incapacitated person objects or has indicated in advance that he or she does not wish to take part in such research.

Charities and many professional organisations have lobbied for the Bill for more than a decade, and it is the product of many years of consultation with a wide range of stakeholders, as my hon. Friend the Member for Cannock Chase pointed out. People with personal experience and professional expertise have worked with us to draw it up and we are deeply grateful to all who contributed. The Bill has been scrutinised by the Joint Committee of both Houses and improved immensely through its work. We have taken the vast majority of the Committee's recommendations on board and I reiterate the thanks expressed by the Under-Secretary of State for Constitutional Affairs to Committee members, many of whom have spoken today.
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The Bill is empowering and ethical. It will empower people to make decisions whenever they can. It will clarify the position of those who care for people who lack capacity. It will empower them to act with the confidence that they are doing that within the law, provided that they do so in those people's best interests. It will also enable people to challenge decisions by using the best interests principle and checklist as a guide and a new and specialist court as an arbiter when necessary.

The Bill has a long history of consultation and open discussion, and it is long overdue. People who lack mental capacity have waited long enough for it. Of course it has engendered widespread discussion on difficult issues, as we have heard today. However, I hope that following today's debate and in Committee—I confirm that we will extend the time for that—we will be able to reassure hon. Members about the many issues that were raised today. It is for that reason that I commend the Bill to the House and urge hon. Members to give it their full support.

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