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Baroness Finlay of Llandaff: Will the Minister confirm whether I am right? We are considering best
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interest decisions—decisions that are taken because there is a point of difficulty. We are also talking about life-sustaining treatment. Without that treatment, the patient would be dead. I refer to a situation where a disease is causing a patient to progress inexorably towards death. You may have something with which you can intervene to delay that death. Your decision not to do that must be motivated by all the other aspects of best interest so that you do not inflict futile, harmful, burdensome treatments and do things which would deny other people treatment. If you have a limited number of ventilators, continuing to ventilate a person where it is futile may endanger the lives of others; that situation can occur in real life. However, you should not decide not to ventilate because you are motivated by a specific desire to bring about the death of the relevant patient. I wonder whether we have forgotten the line of the amendment that relates to life-sustaining treatment. Without the intervention that is being considered, the patient would die naturally anyway. Am I correct in what I have said?

Baroness Ashton of Upholland: Yes, the noble Baroness is correct. As I said, we seek to be clear regarding the concept of best interest and life-sustaining treatment. We have sought to capture what I term the "moral" notion of best interest. It is an objective test; it does not involve what I might consider is in the best interest but what actually is in the best interest. It is not a judgment about another person's life but concerns treatment and what is in that person's best interest. That is the critical issue. As I have indicated, we do not seek to overturn the law or to put clinicians in an impossible position. English law has a very particular understanding of, for example, the word "purpose".

That is all I have to say on the matter at this point. I have already said—and I mean it—that as we progress through Committee other issues will arise that come within the scope of some of the considerations that Members of the Committee have debated. We need to engage with the full debate about advance decisions and so on. I am thankful that the Committee stage enables us to explore issues and Report to confirm them. As I say, I shall consider all of the points that have been raised. However, I would not wish to see us move in a direction that overturns the law. That is in part why we have chosen the language that we have, and why it was sought. The language was sought by those who wished to ensure that we dealt with the best interest concern.

Lord St John of Fawsley: I am most grateful to the noble Baroness. I assure her I accept entirely that she has no intention—nor would she have the power—to overturn the basis of English law. Those of us who have expressed concern about this matter are concerned that this amendment does not make clear what the basis of English law is, and does not take it sufficiently into account.

I was most grateful for the intervention of the noble Baroness, Lady Warnock, because she brought us back to the fact that—I am glad that her voice had not
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entirely given out because what she said was so true and so germane—what we are considering here is not merely a legal quibble but questions of relieving suffering and extending compassion. However, in order to do that one has to find the right language. May I suggest to the Minister that she include in her discussions—this is an ecumenical remark—the right reverend Prelate the Bishop of Oxford, who has contributed so much not only to this issue but also to other issues in the difficult field of the relationship between moral theology and the law, and the noble and right reverend Lord, Lord Habgood, the former Primate, who has the astounding mind in this country on this issue? It would be very wise for the Government to make full use of that extraordinary instrument of clarity and intelligence.

Baroness Ashton of Upholland: As I think the noble Lord will know, I am open to discussions with any noble Lord who wishes to discuss matters with me. I hesitate to force the noble and right reverend Lord, Lord Habgood, or, indeed, the right reverend Prelate the Bishop of Oxford to do so, but I would be delighted to discuss the matter with them. However, that discussion would take place in the context of the way in which we have approached this matter. I wish to be clear about that.

I say to the noble Lord—I fear that I shall regret doing this—that one does not seek to define existing law within a new piece of legislation; one wants to ensure that existing law stands firm. In introducing a new piece of legislation—my experience of this to date is not great but I have come across it before—one does not want to disturb other well founded pieces of law. The law on criminal justice and murder is very clear and we have sought not to disturb it in any way. As I have indicated, I am always willing to undertake further discussions but I say to the noble Lord that those discussions must take place within the context of everything I have said hitherto.

I turn to the other amendments in the group. As I believe I have indicated already, we have sought to focus on the worthwhileness of the treatment for the person and not the worthwhileness of the person him or herself. I believe that in doing that we have met the underlying objective behind Amendment No. 11 in the names of the noble Lord, Lord Alton, and the noble Baroness, Lady Finlay. I believe that the noble Lord, Lord Patten, talked about life being futile. It is not a question of life being futile but rather of the treatment being futile. That is the critical difference, which I am sure the noble Lord accepts.

We believe that we have met the underlying objective of Amendment No. 97 in the names of the noble Lords, Lord Brennan and Lord Alton. However, I wish to say a little more about Amendments Nos. 97 and 99 and to explain some of the legal and technical problems relating to the drafting despite—I say this very clearly—the very positive intentions behind the amendments.

Amendment No. 97 seeks to prevent any measure in the Bill permitting a decision made with the primary purpose of,

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whose welfare is at stake. We have already talked a great deal about life-sustaining treatment. I also spoke about the meaning of "purpose". The noble Baroness, Lady Finlay, mentioned treatment that was unreasonably burdensome and the need to consider what benefits it can offer. We come back to the whole question of best interest.

Amendment No. 99 has similar wording to that of Amendment No. 97. Amendment No. 99 seeks to prevent a decision being valid if it has,

The same difficulty arises in connection with the word "purpose". It is important for noble Lords to reconsider these amendments in the context of the words that are used and the way in which they are determined in English law.

I turn to Amendment No. 17 in the name of the noble Baroness, Lady Barker. The amendment is supported by the noble Earl, Lord Howe. We have already made it clear—I have indicated this several times today—that best interest constitutes an objective test, which means that decision-makers have to give objective reasons for their decision. As the noble Baroness says, the Bill does not spell out a requirement to demonstrate an objective decision because that depends on when and to whom the demonstration would have to be made. Although the noble Baroness, Lady Barker, pre-empted what I am about to say by saying that one should not assume that the measure would leave the person unprotected or delay decisions, there is a concern that it could have that effect because one would have to work out how one was going to deal with it.

I draw the attention of the noble Baroness to point 4.28 on page 37 of the draft code of practice, which says that when the court is not involved, carers, relatives and others can only be expected to have reasonable grounds to believe that what they are doing or deciding is in the best interests of the person concerned. That does not mean that informal decision-makers can merely impose their views. Rather, they must be able to point to objective reasons to demonstrate why they believe that they are acting in the person's best interests. They must consider all the relevant circumstances and the four elements of the checklist.

We have covered the point made by the noble Baroness on the code of practice. I am sure that she will want to reflect whether that is sufficient, but it is better placed in the code of practice, which will be the living document used to support people when we implement the Bill. I am also advised that the legal effect of the requirement to have a reasoned belief is that you would have to demonstrate your grounds in a court of law. Between the combination of how it would work in practice in law and the code of practice, I hope that we have addressed in essence the points made by the noble Baroness.
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On Amendment No. 19, the noble Lord, Lord Alton, made a point about the continuity of care; for example, speech therapy for young people. In my former existence, I was deeply concerned to ensure a smooth transition for young people. I cannot say that it is perfect in every case, but there are some clear indications in practice that this is now better than it used to be. I reassure the noble Lord that the courts have said that the best interest test for adults who lack capacity is akin to the welfare test for those under 18, so there is not a sudden moment at age 18, as the noble Lord feared, when the principles change, or the wishes of a person suddenly carry more weight within best interest. Of course, the difference is that the role of parental responsibility changes, because they lose their decision-making power once a young person reaches 18. The Bill requires that the views of family members be given full consideration. It might not be a formal decision-making power—that is right because they are now adults—but it is a factor to be taken into account. We believe that there is that smooth transition, and I have looked at this carefully, because it is an important point. I am happy to discuss this with the noble Lord, and I am happy to write further if that would help to clarify the issue.

We have said on this Bill, and many of the contributions today have covered this to some extent, that there are two routes for action and decisions about medical treatment. The first route is for third parties to act or make decisions for or on behalf of the person who lacks capacity, which must be taken according to best interests. We have had a long discussion about that. The second route is for the person him or herself to make a capacitated decision in advance to refuse treatment, so a decision by a third party would not be needed. Decisions made by the person him or herself are different from best interest decisions.

The noble Lord, Lord Brennan, in introducing this debate, suggested that the principle of allowing people to make unwise decisions in Clause 1(3) should be circumscribed, so that it is overridden if it is wholly irrational. I will not say anything further about the important points made by the noble Lord, Lord Mayhew, and the noble Baroness, Lady Carnegy, except to agree with them about the difficulty of "wholly irrational". I take what the noble Lord said about administrative law, but I am not sure that I accept the analogy. Administrative law as I understand it—and I have no doubt that I will be corrected by Members of the Committee—is about the courts controlling public authorities who must act in accordance with public law duties. Capacity is about whether an individual can go about a proper process of personal decision-making. I would not accept the analogy.

The noble Lord also talked about a mother in distress who makes an advance decision but the circumstances change. It is worth looking again at what we have said in the Bill, because we are clear about the safeguards. Where circumstances have changed, or where the person making the decision at that time could be shown to lack capacity for whatever
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reason—and it is a broad term in that sense—then the clinician can say, "this is not appropriate, it is unsafe; I am going to treat". He can treat with impunity, without any fear of any kind of comeback or recourse to law. That is important.

This is about the principle of autonomy, and many people, particularly from organisations representing those with physical or learning disabilities in particular, have fought long and hard for autonomy. The right to make choices is part of being an autonomous adult. As noble Lords have said, and I will not go over it again, the question of whether something is unwise is debatable. I hesitate to say this, but could a noble Lord who has never made an unwise decision please stand up? It is part and parcel of being autonomous.

We will come to this shortly in an amendment proposed by the noble Earl, Lord Howe, but it is important to weigh up the information, either because of a pattern or because it is clear that the person making the decision has not been able to weigh up the information—that is when the Bill kicks in. Someone might do something that we might consider unwise, and there are many examples. I used the example at Second Reading of going out and lighting up a cigarette, which might be considered unwise, but I would hesitate to suggest that noble Lords might not be able to do that. It is particularly relevant for young adults when they are striving to become autonomous. While I accept and understand what the noble Lord seeks to do, I do not accept that we could incorporate that.

On advance decisions, it is right to respect people's wishes. They are decisions that people with capacity can choose to make if they so wish. The principle that people can decide whether to refuse treatment arises from the common law, where it is clear that a competent adult's personal autonomy is paramount.

My noble friend Lord Carter referred to where this had been set down. It was the noble and learned Lord, Lord Donaldson, in the case of T (Adult: Refusal of Treatment)[1992]. I think that this is the quote that my noble friend was looking for:

The noble Lord, Lord Goodhart, in his intervention on my noble friend Lord Brennan raised the issue of Jehovah's Witnesses, who make advance decisions that under no circumstances they would wish to have a blood transfusion. That is their right, however unwise or irrational any noble Lord might think it. That is where the noble and learned Lord, Lord Donaldson, takes us.

On Amendment No. 197, I have sympathy with the noble Lord, Lord Alton. I have no wish for professionals to be unclear about what to do if faced
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with, for example, a young person who has taken an overdose in a suicide attempt. The noble Lord and I discussed these examples last week, and I was grateful for his time. That is why we have ratcheted up in this Bill the raft of safeguards around advance decisions that are not in place now, because this is in common law and not in statute. Where treatment is necessary to sustain life, no advance decision will be binding unless it complies with the strict formality rules. It is hard to imagine that a young person who has been abandoned by a lover, or for whatever reason is depressed, unhappy, or miserable, would meet those rules. In any event, it must be clear that if someone makes an advance decision to refuse treatment, they would have the capacity to do so. That means being able to exercise free will in the absence of duress.

If the treating clinician has any doubt whatever—and I have tested this example on clinicians—about the validity and applicability of an advance decision, they can safely go ahead and provide the treatment. As I have indicated before because of something raised in another place, there could be no recourse in law. They cannot be sued for having done that. There are far more safeguards than under the current common law, and it is infinitely less rather than more likely that any putative advance decision could be considered binding by someone in that case. It is very important for the Committee to understand the matter; it makes a big difference in supporting clinicians taking action.

The noble Lord, Lord Alton, suggested a conscientious objection clause. Guidance to professionals on conscientious objections will continue as now but, legally, a doctor's position will be clearer than at present. Again, the GMC and BMA are comfortable and confident about the guidance that goes out to doctors about conscientious objection. I am happy to send notes of anything that we have to the noble Lord, but I repeat that, if a doctor has any doubt whatever about an advance decision, they can go ahead and treat.

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