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Lord Carter: I had the privilege of chairing the Joint Select Committee on the draft Mental Incapacity Bill, and I was pleased that the Government accepted the great majority of our recommendations and the recommendation to change the title to the Mental Capacity Bill.

Perhaps I may remind your Lordships of the recommendation that we made regarding euthanasia. We stated:

I was delighted that the Government did that, and I remind the Committee that Clause 58 states:

This is the matter that I find hardest to grasp in this argument, and I would be delighted to hear from my noble friend Lord Brennan when he winds up, and from my noble friend the Minister. Section 1 of the Suicide Act 1961 clearly states:

That is the first time in a long time that I have seen the word "abrogated" in a statute. It is clear that to attempt or to commit suicide is not an offence under law. But the crucial section is Section 2. It states:

It refers to a person who "aids" any attempt to commit suicide. Does "aid" include both the commission and the omission? That is the question on which this matter will turn—whether that section of the Suicide Act 1961 will cover the concerns expressed by my noble friend Lord Brennan.
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He referred to the "wholly irrational" decision. Does he regard an expression of advance decision expressly to assist suicide as "wholly irrational"?

Lord Brennan: It does not need to be considered, because it is completely illegal under Section 2 of the Suicide Act—but if it were attempted, it would also be wholly irrational.

Lord Carter: I just wonder whether the noble Lord, as a Roman Catholic—as am I—means that it is "wholly immoral" or "wholly irrational", because we have a view about suicide. There is no need for him to intervene again, but this is our difficulty. When I read the Suicide Act, I thought that, in the case of an advance decision to commit suicide, such as that in the example given by the noble Lord, Lord Alton—I am sure that it was hypothetical—no doctor could ever execute that, because he could pray in aid Section 2 of the Suicide Act. That is the crucial point. Does that Act cover that argument?

Regarding the other argument mentioned by my noble friend Lord Brennan, about personal autonomy, there was a judgment given in, I think, the Bland case, by one of the Law Lords that sanctity of life must take second place to personal autonomy. I suspect that that is what this debate is about.

The Lord Bishop of St Albans: The noble Lord, Lord Brennan, rightly concluded his powerful speech by referring to this subject as being "serious". I concur with that. I fully understand the philosophical concerns that underlie the first amendment in particular. It is trying to bring to our attention the necessity to keep a righteous and appropriate balance between the exercise of personal autonomy and the public good. From a philosophical perspective, we are now dealing with what the late Isaiah Berlin used to term "incommensurables"—by which he meant a clash not between right and wrong or good and evil but between two competing goods. I find the concept of incommensurables enormously helpful. In a situation where we have a clash between two apparent goods, how do we decide what to do? I entirely agree with the noble Lord, Lord Brennan, that we try to deal with it by careful and reasoned debate. In this particular case, we must also look at the general thrust of what the Bill is trying to achieve.

My anxieties over Amendment No. 1 are threefold. First, it could undermine some of the significant moral principles on which the Bill is founded—principles which recognise that those suffering lack or loss of mental capacity have an especial moral right to be treated by society as having fundamental and inalienable human rights. Secondly, I suspect it would impose a considerable burden—perhaps even an intolerable one—on the medical profession, which would also defeat the entire purpose of the Bill, and might lead to a large number of contested decisions. Thirdly, we are all aware that tests in our courts of what is or is not in the public interest have generally been found by those courts not to override a patient's right to refuse treatment. I believe this amendment would shift the law markedly away from the important
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principle of patient autonomy. I underline and repeat that I fully recognise the underlying concerns, yet I also suspect that the amendment as it stands could so skew the thrust of this Bill that it would be unworkable. Given that this Bill has received such careful and thoughtful scrutiny over so many years, I do not think that this Chamber wants such a change at this stage.

Baroness Barker: I rise to speak to Amendment No. 17, which is in the group. I have listened with great care and attention to all four preceding speeches, which precisely encapsulated the detailed arguments considered by the Joint Committee. Having listened to a wide range of advice—including that from faith groups—the Joint Committee concluded, for the reasons so eloquently set out by the noble Lord, Lord Carter, that the Bill did not encourage euthanasia by the back door, and that it should be based on the practical implementation of some very deeply held principles.

I was interested when the noble Lord, Lord Alton of Liverpool, talked about Scotland because this section of the Bill in particular was shaped and influenced by the experience of people in Scotland responsible for the drawing up and enactment of the Adults with Incapacity (Scotland) Act 2000. I do not believe that that Bill, any more than this, was motivated by a desire to bring about the sorts of scenario that have been alluded to. As a member of the Joint Committee I take grave offence at some of the implications made in the press—not only for my own sake, but also for people such as the noble Lord, Lord Carter, who we know is a man of great faith. Conducting the debate in that manner does not help us.

I share many of the concerns raised by the noble Lords, Lord Brennan and Lord Alton. I am deeply concerned about issues such as undue influence, and they will see, having studied the list of amendments before us, that we have sought to address the very real concerns about the matter. However, our starting point is different. The noble Lord, Lord Brennan, talked at one point about there being no absolutes. For me, and for those I have followed in my thinking about the Bill, perhaps the paramount principle is that people must be treated as individuals. That is key to everything that flows out of this. We need to set a legislative framework in which people are never treated as a class in terms of their human rights or in their care and treatment. For me, the importance of the Bill is that it treats adults who lack capacity as individuals, and from that flows everything else. Every decision taken under the Act has to be an individual decision in relation to one person, and it has to be based on those principles.

I therefore find myself in disagreement with the noble Lord, Lord Brennan. I listened with great care to what he said about acts being wholly irrational. Would that those people who have capacity were subject to a law that demanded of them, and those round them,
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that their decisions always be rational. They are not. I take to heart what the right reverend Prelate the Bishop of St Albans said because this is not just a Bill about life, it is about living. It is a Bill about the way in which people who lack capacity live their lives as members of society, and about how society treats them with dignity. Therefore, although one would not have assumed so from the opening of our debate, it covers all of life in its glory and, sometimes, in its basic, day-to-day operation.

That is why we are right to follow the example of those people in Scotland who first looked at having a Bill that was based not just on principle, but on those principles. The right to make unwise decisions should be afforded to people who lack capacity, because it is a right that those of us who do have capacity exercise every day—although not to the degree of severity that has been talked about already.

I turn briefly to my Amendment No. 17, which is about the need for somebody who makes a decision on behalf of someone who lacks capacity to demonstrate that it is in his best interests. The Joint Committee spent a great deal of time talking about best interests. We were blessed with several members who were lawyers and we talked a great deal about evidence. How does someone who makes a decision on behalf of another person show that that decision is in that other person's best interests? Decisions may not be straightforward. Decisions which are in someone else's best interests may be extremely complex.

I thought about requiring people who make decisions to produce evidence, but immediately it was argued, "We don't want people making day-to-day decisions for someone to be liable to have to demonstrate that in front of a court". I came up with a phraseology to highlight one point. When describing their lives and the lives of those they look after, carers—particularly those caring for people who lack capacity—demonstrate throughout why they do what they do. Carers are always explaining to other people what they do, especially in terms of treatment but also on mundane questions of why they chose to buy particular clothes for someone who lacks capacity. It reflects best practice.

I suspect that when we discuss the matter the Minister might be tempted to argue that there may be a burden on carers to have to demonstrate that their decisions were in someone's best interests. But I do not believe that it would be a burden. I believe that many carers would find the requirement useful. A requirement on the face of the Bill to demonstrate an activity enables them, when they come into contact with care providers, to have ready at hand the reasons why they take decisions and to have them taken into account. Many carers would find that extremely valuable.

I suspect that the amendment is not elegant and it may be rejected for technical reasons. But even for serious decisions, such as in cases of terminal treatment, I remain of the view that in this framework Bill it is good to require of decision-makers that they
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demonstrate in whatever way and at whatever level required why they believe something is in the person's best interests. Therefore, I hope that the Minister will consider the amendment.

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