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Lord Lester of Herne Hill: My Lords, I should like to begin by congratulating the noble and learned Lord the Lord Chancellor and the Government on this full, sensitive and wise statement on mental incapacity. I eagerly look forward to studying the Green Paper. I should like to echo the noble and learned Lord's tribute to the excellent work done by the Law Commission and by the Select Committee on Medical Ethics. I am sure that the noble and learned Lord would join me in paying tribute to the work done by the courts in seeking to grapple with very difficult problems, using the sometimes incomplete instruments of common law.

I entirely agree that the law as it stands affords too little certainty and protection to mentally incapacitated adults and those who care for them. I also agree that carers are expected to make decisions on behalf of incapacitated adults without a clear idea as to what legal authority exists for those decisions. I agree too that insufficient guidance and safeguards exist in some areas.

My experience in this area comes largely from acting as amicus curiae in Bland, the case of the PVS patient who would never recover consciousness. That case illustrated to me, and undoubtedly to the courts, the terrible dilemmas faced by those who care for individuals lacking mental capacity. Several Law Lords in that case--notably the noble and learned Lord, Lord Browne-Wilkinson--indicated the unsatisfactory state of the law and the desirability of law reform in which Parliament played a role.

For reasons which I entirely recognise and respect, as the noble and learned Lord the Lord Chancellor has made clear, the Green Paper will not seek views about euthanasia. However, as I believe the remarks of the noble Lord, Lord Kingsland, indicate, the underlying issues raised are bound to be controversial and difficult and will border upon what some would regard as euthanasia. For example, there are some in this House who regard the Bland decision as amounting to euthanasia.

The reason why these issues are so sensitive and complex is that one is seeking to reconcile several different and sometimes conflicting basic human rights and interests: the right to life; the right to be treated with humanity and dignity; the right to live in dignity and to die with dignity; the right to personal privacy, including the patient's right to personal autonomy; the right to refuse medical treatment; and the right of doctors and nurses to refuse to give inappropriate treatment. Those are some of the basic rights and freedoms involved in the subject matter of the Green Paper.

As the noble Lord, Lord Williams of Mostyn, and others know well, I do not believe that the current state of the criminal law or, for that matter, professional guidelines are adequate in this area. There is confusion surrounding the, in some respects, casuistical

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theological doctrine of double effect in terms of the relevance of primary intent, secondary intent, motive, causation and what is known to criminal lawyers as the Nedrick doctrine which teaches that if the consequence of one's actions is to cause death or serious bodily injury and that is a virtual certainty, one is deemed to have a specific criminal intent.

All the legal scholars I have read in the standard textbooks say that in that difficult area the law is not clear and satisfactory. One recalls particularly the helpful example of the noble Baroness, Lady Warnock, in relation to her cat and the dandelions. She pointed out that if she used weedkiller to kill her dandelions knowing that it would also kill her cat, most ordinary people would think that she had responsibility for killing the cat as well as the dandelions, but not apparently according to the use of the double effect doctrine to circumvent a difficulty in the criminal law. I do not know to what extent it will be necessary to address any of that legal minefield. I know that the Government consider the criminal law to be clear, but I am not convinced.

I particularly welcome the passage in the Lord Chancellor's Statement in regard to advance directives or advance statements with which again I wholly agree. I also agree about the need for adequate safeguards. Advance statements provide a vital means of giving security to patients, to doctors, to nurses and to the relatives of people who lose mental capacity, without in any way sanctioning illegal conduct, including culpable homicide.

To speak on a personal note for a moment, I am sad that my former client--Annie Lindsell--whose funeral took place yesterday, did not live long enough to hear the Lord Chancellor's Statement. She was a brave and doughty champion of the rights of patients, doctors and nurses in the context of humane palliative care of the terminally ill who may lose their capacity, mental or physical, and the right to take decisions in accordance with their wishes and their best interests.

I welcome the proposal to create a new unified court jurisdiction, as the Law Commission recommended. I admire greatly the work done by the Family Division under the leadership of Sir Stephen Brown as President. But it is a curiosity that for reasons only legal historians could explain the Family Division has come to be regarded as the appropriate division in which sensitive decisions about medical care of those who lack capacity are taken. Speaking for myself, I welcome the chance to have a unified jurisdiction all under one roof with qualified judicial experts.

I recognise the complex, personal, religious and ethical issues raised by the Green Paper. I therefore sadly accept that further consultation is needed. I say "sadly" because the Law Commission, as the noble Lord, Lord Kingsland, indicated, consulted for three or four years before drawing up its wise proposals. However, I see that the way ahead is to obtain what the Statement describes as the widest possible public support for any reform. I hope that in the consultation process the subject will not be captured by dogmatists or absolutists of an extreme kind on either side. It seems

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to me that this is not an area in which one can dogmatise or pronounce with any kind of absolutism. We are weighing and striking a balance between competing public interests. For those reasons I welcome what has been said from the Woolsack.

The Lord Chancellor: My Lords, I agree with the noble Lord, Lord Kingsland, that these are issues of huge ethical, scientific and social importance. I welcome his saying that they are not party political issues; certainly they are not. On all these issues I was at pains to make clear that the Government retain an open mind. Par excellence this is an area for consultation. I do not believe that the consultation which the Law Commission undertook can now be regarded as sufficient. This is a highly sensitive area on which the Law Commission's formulated recommendations should now be the subject of further discussion.

As the noble Lord, Lord Kingsland, said, the critical issue is whether there should be legislation. That is undoubtedly the basic issue. Your Lordships may be interested to know that when this matter concerned your Lordships' House in its judicial capacity in the case to which the noble Lord, Lord Lester, referred, the noble and learned Lord, Lord Browne-Wilkinson said this:

    "It seems to me imperative that the moral, social and legal issues raised by this case should be considered by Parliament. The judge's function in this area of the law should be to apply the principles which society, through the democratic process, adopts; not to impose their standards on society. If Parliament fails to act then judge-made law will, of necessity, through a gradual and uncertain process, provide a legal answer to each new question as it arises. But in my judgment that is not the best way to proceed".

That was a strong plea from the higher judiciary that Parliament should be the appropriate forum to address this point.

The Green Paper merits the fullest study. There are many points of difficulty on which we will consult. The noble Lord, Lord Kingsland, raised one--the point that an advance statement may be fine at the time it is made but becomes outmoded by change of circumstances. That is an important point and one on which I do not doubt views will be expressed in consultation.

3.47 p.m.

Lord Campbell of Croy: My Lords, I welcome the fact that this difficult subject is now being tackled and that the first wide consultation period is starting. Can the noble and learned Lord say whether mental illness is included in the Green Paper as distinct from mental handicap, also known nowadays as having learning difficulties? Both mental illness and mental handicap are disabilities that can induce mental incapacity. The noble and learned Lord spoke of elderly people suffering from dementia. But mental illness can afflict people of all ages; for example, schizophrenia and manic depression. I hope that the noble and learned Lord can confirm that mental illness is included in "incapacity": he did not refer to it in his Statement.

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My second question is extremely simple and probably expected by most noble Lords. The Statement applies to England and Wales. Will a similar Green Paper be issued for Scotland where law and health are, and have been for many years, completely devolved?

Lord Cledwyn of Penrhos: My Lords, why was not the House given proper notice of this discussion on the Green Paper? It is delaying an important debate on Wales.

The Lord Chancellor: My Lords, I welcome the noble Lord's acknowledgement that the Government are tackling a difficult subject. The Green Paper addresses mental incapacity regardless of cause. Therefore, if it is something which qualifies as a mental illness that results in mental incapacity, the Green Paper addresses all forms of incapacity regardless of other causes. I entirely agree that the reference to the elderly suffering from dementia was illustrative. People of all ages can suffer from mental incapacity. Yes, there is consultation in Scotland.

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