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Earl Howe: I endorse everything that was said by the noble Baroness, Lady Barker, in relation to Amendment No. 17, to which my name has been added. I do not propose to comment to any great extent on the amendment of the noble Lord, Lord Brennan, except to say that I believe it is flawed in at least one sense in that it seems to countenance the idea of a wholly irrational yet wise decision. I find that a rather difficult concept to grasp, quite apart from the difficulties highlighted by my noble and learned friend Lord Mayhew, the noble Lord, Lord Turnberg, and others.
I should like to devote a moment or two to government Amendment No. 13, anticipating with other noble Lords what the Minister is going to tell us. I start by saying that the Committee will be extremely grateful to the Minister for bringing forward the amendment.
I think we all feel that we are now debating the single largest source of concern in the Bill. Because of that it is vitally important that Amendment No. 13 is 100 per cent fit for the purpose. I have been encouraged by what I have heard about the attitude of the Archbishop of Cardiff, but I would like to press the Minister on one or two points.
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Amendment No. 13 would result in the deletion of the current Clause 4(5). I am not sure that I am completely comfortable with that. Clause 4(5) is quite strong: it is a duty for a doctor to "begin by assuming" when deciding whether to continue life-sustaining treatment,
That is surely a very important idea because it is like saying that before anyone even starts to embark on the decision-making process, the scales are weighted in favour of keeping a person alive. That built-in handicap against withdrawing or withholding treatment is not something that I see in Amendment No. 13 and I find that at least superficially troubling. We need to ask the Minister why that is.
Amendment No. 13 states that the person making the determination must not be motivated by a desire to bring about the person's death. I would like to follow the right reverend Prelate the Bishop of Oxford and my noble friend Lord St John of Fawsley by asking the Minister to be crystal clear about the legal meaning of the term "motivated". I am not a lawyer but I have always thought that guilt or innocence before the law in relation to any criminal offence, including murder, rested on the concept of mens rea, or, in English, the notion of intent. The motive that someone has when carrying out an act is strictly speaking neither here nor there in terms of the guilt or innocence of the person, other than as providing possible evidence of intent. My intention may be to kill someone by withholding treatment; my motive may be that I want to inherit the person's money.
A court might decide that what motivated someone to make a particular determination—let us say, to switch off a life-support machine from a patient—was that he wanted to relieve the patient's spouse of any further mental anguish, or that he wanted to free up the bed. The foreseeable consequence of turning off the machine was that the patient would die. The person did what he did intentionally, but he might not have particularly desired to see the patient die in order to achieve the end result that motivated him.
So we need to hear from the Minister whether a person who takes a particular course of action as a result of being motivated by a desire other than to kill, will in all circumstances be regarded by a court as having killed intentionally.
I ask one final question. Clause 4 sets out the makings of a process through which a carer or clinician, or whoever, will have to go in order to arrive at a judgment as to where a person's best interests lie. If necessary he will have to be able to show that he considered all the relevant parts of the best-interests test before taking a given course of action. That much is clear. What is not clear is whether he or she will also have to go through a separate process alongside that—if the Government's Amendment No. 13 is accepted—namely, assembling suitable evidence to demonstrate motive. One wonders what such evidence might consist of.
I hope that the Minister will say that there is no question of any separate process; rather that the process of determining best interests, and perhaps
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sharing the results of that process, will in itself provide all the evidence that a court will ever need about motive. In other words, if you can prove conclusively that the best-interests test has been met, you need not fear that a court will also ask you to prove to it what your motives were in taking the action that you did.
That may be an over-optimistic thought, but the point is quite important. The language of the amendment is one thing; what it means for people's understanding and practice day to day is another. Clearly the last thing that we should want to see emerging from the amendment is an obligation to obtain legal advice before any decision on behalf of a mentally incapacitated person is ever taken.
I hope that the Minister will be able to shed some unambiguous light on those issues.
Lord St John of Fawsley: I apologise to the House for intervening again, which I think I am entitled to do, but the point is of such crucial importance that it needs to be examined most carefully. I am extremely grateful to my noble friend who has just spoken for giving such importance to this point and lending the weight of his very considerable authority to it.
Perhaps I may quote another authority, perhaps even greater, namely the point made by Stephen in his History of the Criminal Law, which is one of the classic works of our law. He states that,
"the common maxim which is sometimes stated as if it were a positive rule of law, that a man must be held to intend the natural consequences of his act, I do not think that the rule in question is really a rule of law further or otherwise than it is a rule of common sense".
"The only possible way of discovering a man's intention is by looking at what he actually did and by considering what must have appeared to him at the time the natural consequences of his conduct".
Motive does not come into that at all. If I may be allowed to make a second quote:
"'Motive' was distinguished . . . from 'intention', as the desire prompting an act, a state of mind which the law cannot take into account. The point will be made clearer by an example. X fires a gun and kills Y. His intention in firing the gun is to bring about the death of Y. His motive may be to inherit Y's fortune, marry Y's wife, or merely hatred of Y. Motive is thus the reason which leads X to form his intention of killing Y. Whether this motive is good or bad is irrelevant as far"—
I wish the Minister would give me the courtesy of listening to this point because it is crucial.
Baroness Ashton of Upholland: I am indeed listening to the noble Lord with great intent. The fact that I was not looking at the noble Lord does not mean that I was not listening.
Lord St John of Fawsley: I feel that I was justified in feeling that I was being deprived of the approving glances of the Minister, which up to that point I had been basking in. If I may continue:
"Whether this motive is good or bad is irrelevant as far as the law is concerned, although it may well be relevant for the moralist".
Modesty forbids me to say where this quotation comes from, but to be totally honest with the House I confess that it comes from a book I wrote 50 years ago.
Baroness Ashton of Upholland: I apologise to the noble Lord if I failed to look at him with the appropriate glance, but I was indeed listening with great interest. I am sorry that he was modest in not telling us immediately about those words. I would be very grateful to borrow the book from the noble Lord at some point.
In speaking to the government amendments and in winding this debate I feel I must become a philosopher, a lawyer and a doctor in seeking to try to address all the points raised. It is important to begin by saying what my purpose is. It is as always for me important in Committee to have the opportunity to listen with great care, to respond where I can and to fulfil my commitment to consider what has been said. I will do that consistently throughout the Committee stage.
I was grateful for the comments that have been made about the way in which we have sought to deal with the Bill in the House. I can promise that I will continue as I have begun. I completely accept what the noble Lord, Lord Patten, alluded to: Parliament is sovereign in the determination of the Bill. It is noble Lords who will make the decisions about what may or may not be sent back to another place.
I am none the less grateful for all the interventions I have been fortunate to receive from different individuals and organisations. They range from the Archbishop of Cardiff, who has been extremely helpful, to the 39 organisations that form the Making Decisions Alliance, through to many noble Lords, Members of another place, individuals and organisations, particularly the BMA, the GMC, the Royal College of Psychiatrists, hospital doctors I have had the good fortune to meet and many others. It is in that spirit that I stand before the Committee today.
We will consider carefully the report of the Joint Committee on Human Rights that we received yesterday. We are clear that doctors must assess the objective question of "best interests" when considering the options available, particularly life-sustaining treatment. We will consider whether there is yet more we can add to Clause 4, in addition to government Amendment No. 13, to address the points that have been raised by the committee. However, we have not yet had a chance to consider the report in detail. I also wished to make sure that we had the benefit of this debate today.
Before I begin to weave my way through this rather large group of amendments—with a wry hint, as I was hoping that someone would degroup it, but, sadly, members of the Committee liked it—I shall deal with the questions that have been raised as best I can. I am sure that the Committee will not let me forget anything.
For the benefit of noble Lords who were not present at Second Reading, I shall make two or three key points about the Bill. It is about empowerment and
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protection. It is about the individual. It is also about the loved ones—those who care for individuals who may and do lack capacity—and the professionals who operate with them. It is not about euthanasia or assisted suicide. That is clear in what is in the Bill; it is also clear if one reads and understands the spirit of the Bill and the way in which it has been framed. I am really sorry about some of the press reports that have maligned an incredibly important piece of legislation. I know that the Committee will see those reports in that light.
The Bill recognises the autonomous nature of human beings. It recognises that they can be unwise. It recognises that an advance decision, properly made, with all the safeguards that we have put in place—we will discuss those as the Bill proceeds through Committee—is a way of expressing that autonomy for people. If one knows that one is going to lose capacity directly, or if one recognises that one might lose capacity, an advance decision is, in a sense, a way of expressing personal autonomy. The critical factor for our professionals, especially our medical staff, is that, if there is any doubt whatever about the advance decision, they must err on the side of treatment and operate as good clinicians and physicians do. We have built in much better safeguards than currently exist in common law.
The entire Bill is framed around the question of "best interests", which is an objective, not a subjective, test. It is not about what you or I or we may think about somebody's life. It is objective particularly in the context of the treatment given to the individual. That goes some way to addressing the point raised by the noble Earl, Lord Howe.
In opening the debate today, my noble friend Lord Brennan, spoke to a range of amendments, which I shall summarise briefly. I understand the intention behind the amendments—to add more protection for vulnerable people, especially where end-of-life decisions are concerned. My noble friend was concerned in particular that the Bill would make suicidal decisions more likely to succeed, putting the medical profession and other third parties in an extremely difficult position.
The amendments seek clarity on whether the principle of "best interests" applies to advance decisions to refuse treatment. They look at how "best interests" might be applied to young adults, as opposed to children, in the transitional phase between 17 years 11 months and 18 years, to which the noble Lord, Lord Alton, referred.
Amendment No. 97 would make it clear that no decision could be made with the primary purpose of bringing about the death of the person concerned, unless it would cause the person harm or be unreasonably burdensome.
Together with the noble Baroness, Lady Finlay, the noble Lord, Lord Alton, wants to see an explicit reference to the consideration of a person's life and well-being when a determination about best interests is
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made. They would like a statement in the Bill that no decision is permitted where the sole purpose is to bring someone's life to an end.
The noble Baroness, Lady Barker, supported by the noble Earl, Lord Howe, put down an amendment which, although it would apply to every "best interests" decision under the Bill, is particularly relevant to the important debate on end-of-life decision-making. Specifically, they want to make it clear that not only must those determining best interests reasonably believe that they have acted in someone's best interests, they must be able to demonstrate it.
In response to those concerns and other requests for reassurance sought at Second Reading by the noble Baroness, Lady Chapman, my noble friend Lord Clarke of Hampstead, the noble Baronesses Lady Masham and Lady Hanham, the noble Lord, Lord Maginnis, and Members of another place, I tabled the amendments standing in my name. They specifically address the concerns of those who want the Bill more explicitly to protect the most vulnerable people of all. They will make it clear in the Bill that when someone is making a "best interests" determination about life-sustaining treatment, they must not be motivated by a desire to bring about the person's death.
The noble Earl, Lord Howe, referred to the amendment tabled in another place by my honourable friend George Howarth. I give credit to my honourable friend for his work on the amendment. In the discussions and deliberations on that amendment, it was clear that there were real concerns about what was meant by the amendment and whether we could build on it, reflecting the spirit of what my honourable friend had done but taking it a step further.
On Report in another place, my honourable friend the Minister, Mr Lammy, said that we would table amendments to provide the clarification that stakeholders—particularly, but not exclusively, the Catholic Church—were seeking. As members of the Committee who were present at Second Reading will know, my noble and learned friend the Lord Chancellor confirmed that we would table those amendments. As the Archbishop of Cardiff indicated in letters and as I know from conversations with noble Lords, that fulfils the specific commitment made by my noble and learned friend in the letters of 14 December to which the noble Lord, Lord Patten, referred, and which I have ensured are copied to noble Lords.
In seeking to give the reassurance that has been sought, I must explain what the amendments will do. I completely understand what the noble Lord, Lord St John of Fawsley, was saying when he read from the book, and the issues that he and the noble Earl, Lord Howe, raised about mens rea and actus reus—concepts that I have had to get to grips with. The amendments are not designed to change the current law, but to make it transparently clear what is not part of any "best interests" determination.
The way in which noble Lords, including the right reverend Prelate the Bishop of Oxford, have dealt with this issue today reflects exactly the conversations and
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debates that took place in determining how we should address the concern and what we sought to do. We were asked to put something in the Bill that would be clearer about the best interests issues, not about changing the law.
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