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Mr. George Howarth: Does the hon. Lady accept that, in the example given by the hon. Member for Canterbury (Mr. Brazier), it would be wholly wrong for a member of the medical profession to go along with such a request?
Ann Winterton: I believe that it would be wholly wrong for a member of the medical profession to go along with such a request, but the case is well documented, so it has happened. I did not see the story; I merely believe what my hon. Friend has said.
Mr. Michael Jabez Foster (Hastings and Rye) (Lab): Will the hon. Lady give way?
Ann Winterton: I intend to make a little more progress.
"It is not possible to introduce the concept of 'medical' best interests into clause 4 because the Bill does not only apply to medical situations."
Can that sensibly be thought an adequate reason? In the absence of amendment No. 1, there is a severe risk that the objective interest of vulnerable patients may be submerged by the wishes—now given statutory force—of persons who may have a conflict of interest with the patient, or by wishes, feelings and concerns of the
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patient that may now acquire statutory force, despite having been unduly narrowed or deflected by inclinations or external pressures towards self-destruction, or simply by lack of self-respect. How can it be right to leave such important elements of the Bill's central concept to be dealt with in a code of practice? Surely, all decisions taken in respect of the personal welfare of a mentally incapacitated patient must be in his or her best interests. Best interests is the pivotal principle in the Bill, so we must get the definition of best interests right.
Mrs. Browning: I think that I heard my hon. Friend say that she did not support amendment No. 2, but that defines very clearly that the fundamental assumption should be that the person's best interests are for his life to continue.
Ann Winterton: I gave the reasons earlier why I do not believe that amendment No. 2 is the right one to support because it poses the rhetorical question of whether we consider that person's life is worth while or beneficial. In my view, it should have referred to the treatment, so we have a slight difference of opinion.
Mrs. Browning: That is not what is written in amendment No. 2, on page 46 of the amendment paper. I wonder whether my hon. Friend will take a look at it again.
Ann Winterton: Yes, I shall, and I have amendment No. 2 in front of me. Let me read it out:
The amendment would have been better if it said, "that it will be in the person's best interests for the treatment to continue"—a slight difference of opinion.
It is vital that an element of objectivity is introduced into the definition of best interests by making it clear in the Bill that the consideration of best interests must take into account the patient's medical or clinical best interests. In common law, the term "best interests" includes treatment given to save the patient's life, or to improve or prevent deterioration in the patient's physical or mental health. Surely, it is relatively simple to establish whether a given treatment is appropriate to saving life and preventing deterioration, for example. That can be proved reasonably objectively on the basis of evidence of a physical examination of the patient and expert testimony on the treatment proposed.
The disability rights groups are very concerned about the Bill's definition of best interests. Disability Awareness in Action says:
"The Mental Capacity Bill will permit appointed deputies, independent consultees and those given lasting powers of attorney to make serious medical treatment decisions based on the 'best interests' of the 'incapacitated' person. But how is 'best interests' defined? It can essentially be anything those making the decision want it to be. Past and present wishes and feelings of both the individual and their family can be taken into account. Guesses as to what the individual may have wanted! This is totally unacceptable when such decisions could involve the withdrawal of treatment."
For those and the other reasons that I have given, I believe that in the definition of "best interests" we must include the most essential element, which is the life and health of the person involved.
2.30 pm
Mr. McNamara: On a point of order, Mr. Deputy Speaker. A letter sent to the Lord Chancellor by Archbishop Peter Smith of Cardiff has just come into my hands. It seems to say that the Government have given an undertaking to him about the content of the debate today, which to some extent could terminate the Bill. He says:
"My understanding now is that you are giving an undertaking to make explicit in the Mental Capacity Bill that the Bill does not authorise any 'decision' where the motive is to kill, as distinct from relieving or preventing suffering or ending treatment where the patient is in an irreversible coma.
In the context 'decision' includes of course an act or omission, and extends to decisions made by proxies or others given powers by the Bill to decide whether or not a person is given life sustaining medical treatment. Any decision must be in the person's best interests.
Mr. Deputy Speaker (Sir Michael Lord): Order. I think that I have got the general drift of what the hon. Gentleman is trying to say, but it is more of a contribution to today's debate than a matter for the Chair.
Mr. Boswell: Further to that point of order, Mr. Deputy Speaker, I should be grateful if you could make inquiries about whether such a letter has issued from a Government Department without the Minister giving any intimation to the House that it was in his mind to do so.
Mr. Deputy Speaker: Order. I think that we should continue the debate. The Minister will have the opportunity to wind up in a little while. No doubt he can deal with both points then. We are now taking time out of the debate. I think that the hon. Member for Hull, North (Mr. McNamara) wishes to catch my eye later, as do other hon. Members. He will not be lucky if we take up any more time now on the matter that he has raised.
Mr. Tom Clarke (Coatbridge and Chryston) (Lab): The points that have just been made are crucial to the decision that the House might take later. It would be helpful if the Minister dealt with the second to last sentence in the letter from Archbishop Peter Smith, which says:
"I greatly welcome this undertaking which suitably worded on the face of the Bill will remove the substantial objection which I and many others have had."
It is vital that my hon. Friend the Minister should clarify whether that reflects the Government's position. The House is entitled to know.
Mr. David Heath (Somerton and Frome) (LD):
Does the right hon. Gentleman agree that it would be a contempt of the House if such an undertaking had been given and the House had not had the opportunity to express an opinion on wording of that sort during the Report stage of an important Bill?
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Mr. Clarke: We must not fuel the atmosphere. It is important that we take the right decisions. I have confidence that my hon. Friend the Minister will deal with the serious points in the way that the House would expect.
Mrs. Browning: Will the right hon. Gentleman give way?
Mr. Clarke: I will not give way too often because some of us are frustrated that, having served on the Standing Committee which considered the Bill, we may well be talking out others who gave equal time to the Bill at other stages. However, I will give way to the hon. Lady.
Mrs. Browning: In the context of the Archbishop's letter—he talks about best interests—has the right hon. Gentleman noticed that, in an amendment to amendment No. 2, the Government seek to delete the word "best"?
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