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Lord Brennan: I am grateful to all noble Lords who have taken part in the debate. It has been extremely interesting to note the range of opinion on so many fundamental issues in the Bill.
I shall close my remarks on three issues. I refer, first, to personal autonomy. No one suggests that the right expressed by the noble and learned Lord, Lord Donaldson, does not exist. The question is whether it is an absolute right. When I tabled Amendment No. 1, I did not intend that it should be subjected to such vigorous dissection: legal, clerical, clinical and political. My motive was to stimulate debate about the question of the limits, if any, of personal autonomy. I am taken by the phrase "principled autonomy". The reason I included paragraph (b) is that American legislators and courts, which have had this kind of legislation, ultimately found it necessary to consider the balance in a certain number of cases.
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My second point concerns the circumstances prevailing at the time a decision is made. Those members of the 1994 committee who have spoken illustrated concern by their then view that such advance decisions should not be in writing. So, as soon as we invest them with the legalities of the Bill, complexities abound. If they are not in writing, matters are much less complex. But I expect the Government to stand by the position that such matters should be in writing. The question then is: do we simply give effect to the bald words of the decision regardless of circumstances that applied at the time or later? Of course, we do not if we consider Clauses 4 and 25. I am particularly reassured that Clause 25(4)(c) gives doctors, proxies and courts, as the noble and right reverend Lord, Lord Habgood said, opportunities to avoid the consequences of a decision which, considered retrospectively, could not presently be supported.
Lord Habgood: I thank the noble Lord for giving way. My intention was not to say that they should not be in writing—obviously matters of this kind have to be—but that they should not be legally binding. They should be not legal documents but advisory documents to help the doctors to make their decision.
Lord Brennan: I am grateful for that correction to what I intended to say, which is that they should not be legally binding.
I turn to the last of my three points. When we consider the question of how an advance decision may fall to be put into effect, it is extremely important as we go through the Bill clause by clause to ensure that anyone whose job it is to give effect to this—whether medically, as a proxy or as a court—is entitled to take into account all the circumstances. It would be most unfortunate if we ended up with a legal framework in which there was not the "all the circumstances" provision that would enable the right decision to be made.
Finally, I shall comment on Amendment No. 13. In criminal law there are rules of mens rea in respect of murder, manslaughter and assisted suicide. There are requirements of specific intentions before the crime can be proven. The specific intention of each of them is to kill, cause serious injury or to cause a suicide by way of assistance. The phrase "motivated by desire" does not readily fit in with those concepts of specific intent. The clarity which some of us seek reflects that concern. Does this form of wording meet the concern?
Lord Goodhart: I apologise for intervening again and am grateful to the noble Lord for giving way. Does he not agree that there is a crucial distinction between motive and intention? If I have a loaded pistol and I point it at someone's head and pull the trigger, it is quite clear that I intend to kill that person. The motive is the reason why I want to do that. It might be, for instance, that it is in self-defence. Therefore, if one
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takes the wording of a government amendment and alters it from "purpose" to "intention", does that not mean that it will become impossible to satisfy that test?
Lord Brennan: I did not suggest that we should use the word "intention". I was inviting careful consideration of the appropriate form of words on what is a very difficult question.
Lord Alton of Liverpool: The government amendment does not use the word "purpose", but "motive".
Lord Goodhart: I meant to say from "motive" to "intention".
Lord Brennan: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Howe moved Amendment No. 2:
The noble Earl said: I begin my remarks by saying how much I welcome Clause 1 with its clear statement of the principles that are to be taken to apply to everything else contained within the Bill. The model adopted by the Mental Capacity Bill in this sense is one which many other Bills would do well to follow. It so happens that the amendment relates to a principle which many would regard as the most important and far reaching of all; that is, the principle which we have been debating, that of best interests, the practical meaning of which is covered in some detail in Clause 4.
In Clause 1 the overarching provision is quite simple and clear:
"An Act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests".
Again, I welcome that idea because it means that for the first time it is the mentally incapacitated person himself who in law occupies centre stage. It will not be enough to consider without a great deal of forethought what the person might have wanted to happen to them and leave it at that.
Still less would it be acceptable to treat someone who might or might not be lacking capacity as though they were not there and to take the decisions regardless of what their wishes, feelings and beliefs might be. "Best interests" runs much wider than wishes, feelings and beliefs, as the noble Baroness indicated. The duty of a carer looking after a person who has lost capacity, the duty of a doctor, attorney, court deputy or independent consultee will be governed by the obligation to act in the person's best interests at all times. That in itself is a tremendous safeguard for the vulnerable individual.
Against that background, the amendment may be somewhat nit-picking. There is one signal area of the Bill in which the principle of "best interests" is trumped: that is the part in Clauses 24 to 26 which deals with advance decisions. I do not want to anticipate our debates on
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whether or not advance decisions should be legally binding, and so forth. I ask the Committee to set aside that issue for now. What concerns me is the narrow point of what the Government seek to achieve.
The Bill makes clear that where a doctor is considering giving treatment to a person who is mentally incapacitated and that person had previously made an advance decision which is accepted as being both valid and applicable to the treatment in question, it does not matter whether or not the doctor believes that the withholding or withdrawing of the treatment is in the patient's best interests: the advance decision must be respected and put into effect. The doctor may well think the opposite: that withholding treatment may be dangerous or the wrong thing to do; but, as the Bill stands, the patient's decision must override that.
The pedantic point is this. Can we leave Clause 1 as making a blanket statement about the best interests principle in relation to the Bill as a whole? It is messy to have to qualify the principle in the way my amendment seeks to do. Yet it may be necessary if we are to have a Bill which is completely honest with itself. I hope that the Minister will see the point of the amendment. I beg to move.
Baroness Ashton of Upholland: I do indeed see the point. I was grateful for the recognition by the noble Earl that the incapacitated person is put centre stage of the Bill and that "best interests" be an objective test—the critical point made by the noble Earl.
I shall try to deal with the issue in a straightforward manner by taking us through the way in which the Bill works in this regard. Members of the Committee will know that anyone taking a decision on behalf of a person must do so in his or her best interests if the person lacks capacity. That is the principle of Clause 1(5) which states:
"An act done, or decision made . . . for or on behalf of a person who lacks capacity must be done, or made, in his best interests".
However, the Bill's provisions on advance decisions do not fall into that category. An advance decision is your personal choice. It is a decision you make yourself when you have capacity in anticipation of a time when you may lack capacity. So I do not believe that there is a collision between the advance decision clauses of the Bill and the principle of best interests. The advance decision clauses do not conflict with the principle in Clause 1(5) because nothing in the advance decision amounts to,
All decisions made in advance are made by people who have capacity. When a clinician follows a valid and applicable advance decision, he is not doing an act or making a decision on behalf of a person who lacks capacity to make his decision. The decision represents the person's decision to refuse treatment made at an earlier date. In other words, it is as though the person has capacity. That is how I describe it to the noble Earl. I make the decision in advance. I make it as I am now.
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It is on that basis that the clinician has that relationship with me. It is my decision. It is quite different from acting in the best interests of someone who lacks capacity and a decision is made on his or her behalf.
I believe that that explanation is clear but I am not certain that I have convinced the noble Earl. I do not know how to make it clearer. I am happy to discuss the issue with the noble Earl and to write to him if that helps. It is the difference between acting as though I still have capacity, therefore it is my decision; and not having capacity and someone acts on my behalf in my best interests. On that basis, I hope that the noble Earl will feel able to withdraw the amendment.
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