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Gambling Bill
Brought from the Commons; read a first time, and ordered to be printed.
Charities Bill [HL]
Lord Bassam of Brighton: My Lords, I beg to move the Motion standing in the name of my noble friend Lady Scotland of Asthal on the Order Paper.
Moved, That it be an instruction to the Grand Committee to which the Charities Bill [HL] has been committed that they consider the Bill in the following order:
Clauses 1 to 6, Schedules 1 and 2, Clauses 7 and 8, Schedules 3 and 4, Clauses 9 to 12, Schedule 5, Clauses 13 to 32, Schedule 6, Clauses 33 to 69, Schedules 7 to 9, Clauses 70 to 72.—(Lord Bassam of Brighton.)
On Question, Motion agreed to.
Mental Capacity Bill
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Lord Brennan moved Amendment No. 1:
"but any decision, whether unwise or not, is inapplicable and invalid if it is—
(a) wholly irrational in the opinion of the medical practitioner responsible for the treatment, or any other decision maker including a court;
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(b) in all the circumstances against the public interest, namely—
(i) to preserve life;
(ii) to prevent suicide;
(iii) to protect the integrity of the medical and nursing professions; and
(iv) to protect innocent third parties."
The noble Lord said: Some Members of the Committee will find this group of amendments of considerable importance. I commend the Government on the consultation and care that they have exercised in listening to all the different views expressed about this important and serious piece of legislation. In particular, my noble friend Lady Ashton has been assiduous in ensuring that she not only listened to what Members of the House had to say, but wrote to us individually, that we should know her thinking on the part of the Government. At Second Reading, I invited your Lordships to conclude that this was the kind of Bill that would most benefit from reasoned debate in Committee and on Report, because its substance is so important to the fabric of a civilised and moral society.
I propose to speak to Amendments Nos. 1, 16 and 19. They are generally related, in that they go to the question of the philosophical foundation of this legislation. I start with Amendment No. 1. Unusually for a piece of legislation, the Bill sets out principles in Clause 1. Those principles reflect not legalistic conclusions but sentiments thought best to express the way in which our society views mental capacity, mental incapacity and the very grave decisions that fall to be made when someone becomes incapable of dealing with their own affairs or health.
Amendment No. 1 adds words to Clause 1(4), which presently reads:
"A person is not to be treated as unable to make a decision merely because he makes an unwise decision".
The reasoning behind that is straightforward. Amendment No. 1 seeks to introduce for the Committee's consideration matters which any expression of common sense—any sentiment of the best interests and common good of a society—would want in the Bill. It therefore adds,
"but any decision, whether unwise or not, is inapplicable and invalid if it is . . . wholly irrational in the opinion of the",
treating doctor or the person or court, who has to make a decision based on a sentiment expressed by the person years before or in an advance decision. Such a decision should not apply if it is "wholly irrational".
It seems difficult to conceive of how society can responsibly accept the implementation by a doctor or a court of a decision that was properly so described. In administrative law by way of analogy, the courts refused to apply government subsidiary legislation that was wholly irrational, defined as involving legislation or a decision which no reasonable person could ever have reached. My amendment is not from some rarefied source, but from the thinking that exists
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at present about the proper way in which society should work; namely, that it should not be saddled with the consequences of wholly irrational decisions.
The question that arises in that context is whether personal autonomy should apply, even if that autonomy has been expressed wholly irrationally.
Lord Goodhart: Does the noble Lord recognise that his amendment would extend to preventing a Jehovah's Witness refusing a blood transfusion that would save his life? That would surely be an irrational decision, but the amendment would prevent it being a valid decision. Does the noble Lord accept that consequence?
Lord Brennan: No, I do not, which is why I suggest "wholly irrational"—inconceivable to everyone else in the community. Experience and time has led to the acceptance of the beliefs of Jehovah's Witnesses by courts. I am talking about the wholly irrational.
Where the autonomy that we speak of consists of little more than a bald assertion that a person's choice merits respect because it is his choice, whatever it may be, I question the logic, justice and sense of such a proposition. A choice wholly irrationally expressed cannot be in the interests of the person making it, nor of the society required to implement it.
I pass on from that admittedly philosophical concept to the practical consequences in proposed new paragraph (b) in the amendment. Any society concerned with the exercise of personal autonomy which may involve a decision that might result in the end of life is entitled to consider how that decision affects the community in which the person making it lives. I have isolated four considerations that figure in many American cases decided on the interpretation of legislation in that country involving advance decisions, the matters with which we are concerned.
The first is whether the decision should be valid—whether the historical statement should be regarded as binding—if it is inimical to the state's desire "to preserve life". Let us suppose that a proudly presented exposition states that if you contract condition X, you will suffer terrible pain in your closing time before death, but it is wholly unsubstantiated and untrue. Would we accept that a decision made on such a basis should be applied, to result in the termination of life? If so, on what sensible basis do we do so?
Next is the prevention of suicide. My example is about a cult; we remember that terrible case in Guyana a few years ago. Let us suppose that cult members were told that, by a given date, they would face Armageddon or had to commit suicide, and they chose to commit suicide by dint of advance decisions, astutely framed to avoid suspicion but with society knowing what they were up to. Are we supposed to allow that to happen? Is personal autonomy absolute?
The third consideration is very important. If a doctor exercising his or her interpretation of the Hippocratic oath, the Helsinki Declaration or another statement of
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medical ethics feels that what he is asked to do is totally contrary to his medical ethics, should he be required to do it? A conscience clause may except him, if we accept a conscience clause in the Bill. We heard the other day the comment, if accurately reported, of the noble Baroness, Lady Warnock, that we should not be saddled or restrained by the scruples of doctors. Scruples? I thought that they were exercising ethics in the public interest in pursuing the Hippocratic oath. If they want so to treat and the patient's instruction is completely contrary to that, is that in the interests of society? Does that not risk the destruction of trust between patient and doctor overall?
The last consideration is the protection of innocent third parties. I refer, for example, to a mother who in distress makes an advance decision and states that, "In certain conditions, I don't want treatment". She has young children. The doctors are convinced that despite the advance decision she could be saved and the children looked after. Where does personal autonomy dictate that the decision should be made? So, there cannot be an absolute of personal autonomy. In some way our thinking and this Bill must seek to reflect that, otherwise we are allowing personal choice to prevail over the interests of the common good.
I turn to Amendment No. 16, which I shall deal with briefly. The amendment has a typographical error in the penultimate line. The word "not" should be deleted.
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