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Earl Howe: Of course, I shall withdraw the amendment although I find the Minister's reply a little baffling. If I have heard correctly, the noble Baroness said that advance decisions are not about acts done for or on behalf of someone else. I should have thought that the operation of Clauses 24 to 26 was very much about that. If one takes the withdrawal of treatment from an incapacitated person, that is a positive act done for someone else in accordance with an advance decision. As the Minister rightly said, the crucial difference is that it is the patient's own decision, rather than that of the doctor, which brings it about. The operation of those clauses means that by the very fact of the person being mentally incapacitated, someone else acts on his or her behalf. Someone else withdraws treatment—if that is what the decision says. That is a positive act done for or on behalf of that person. I am not sure that I am entirely with the noble Baroness. I do not know whether she wishes to add anything.

Baroness Ashton of Upholland: Perhaps I may try again. When the clinician follows that advance decision, he is not doing so on behalf of someone who lacks the capacity to make the decision. He is following the advance directive of the person who had capacity and made the decision. When is it done on behalf of a person? I have made the decision: it has not been made for me or on my behalf by the doctor. I am probably into semantics of the worst kind but I want to assure the noble Earl that it works in the context of the Bill and works, therefore, in law.

Earl Howe: I am happy to reflect on the Minister's words for which I am grateful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Barker moved Amendment No. 3:


"(7) An act done, or decision made under this Act by any person acting in a professional capacity, or for remuneration, for or on behalf of a person who lacks capacity must have regard for the matters mentioned in paragraphs (a) and (b) below in so far as they are relevant to the function being discharged—
(a) it must not be done in a way that is less favourable than the way in which it would be done or made for, or on behalf of any other person who lacks capacity, or for a person who had capacity, in a comparable situation, or
 
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(b) it must be done without prejudice to the person's age, sex, sexual orientation, disability, religious persuasion, racial origin, cultural and linguistic background and membership of any ethnic group."

The noble Baroness said: We return to principles. In deliberations on the Bill, enduring principles have been sought which can be applied in individual circumstances to achieve outcomes in the best interests of the individual who lacks capacity.

Throughout discussions, many have been conscious that not all human beings start from an equal base point. That is particularly so in relation to medical treatment. Throughout the long gestation of the Bill, I have talked frequently about it with people who have disabilities. Many fears—some of which have been articulated in previous amendments—stem not from any provision in the Bill but from a perception, sometimes from experience, of being treated in a way which is disadvantageous—having assumptions made about the value and quality of a person's life simply because of a disability.

For that reason many of us have sought a guarantee that the principles of the Bill will apply equally to people whatever their capacity and, crucially, their status, whether or not they lack capacity—age, disability and their distinctions as human beings.

The purpose underlying the amendment is to ensure that the principles of non-discrimination apply throughout the Bill. I mentioned this matter at Second Reading and I was grateful to the noble Baroness for the letter she wrote to me in reply. There is concern that there are some forms of disability which would not fall within the Bill; for example, people who have mental health conditions which are not permanent or not of a sufficiently long duration for them to be regarded as having a disability, and, therefore, come within the auspices of anti-disability discrimination legislation. That is a major concern. Throughout the Bill there are a number of places where, although they have sought to address temporary or episodic incapacity, it should be an important principle that we ensure there is a direct relationship between the two.

Secondly, I should explain why the amendment takes this form. Its purpose is to state at the front of the Bill a principle of equal consideration. In another and parallel universe, the Committee considering the Mental Health Bill had an interesting discussion with a Minister last week, on the same subject of principles at the front of that Bill, about the need for principles to be enduring. My contention is that the amendment's principles of non-discrimination on those grounds should continue.

The Minister set out at some length, in the letter she sent me after Second Reading, her reason for not being well disposed to such an amendment, saying that there was a read-across from the Disability Discrimination Act and the Disability Discrimination Bill, which is currently working its way through Parliament. I agree that there is a strong read-across. But I do not accept her argument that,


 
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because I believe that anti-discriminatory principles run through all sorts of applications and different areas of policy. There is a strong case for restating those principles within specific pieces of legislation.

The noble Baroness should accept from statements made in earlier debates that I believe passionately in the freedoms and the dignity that this Bill will give to individuals, but people who have disabilities do not currently believe themselves to be at an equal level with the rest of us. They should be, but they are not.

When the Joint Committee considered this matter, we read an article in the Guardian by Jane Campbell—one of those newspaper articles that make such a profound impact on you that you cannot forget it. She has severe disabilities and talked about her experience of going into hospital and willing herself not to sleep for the duration of her stay, lest any decision be made about her, her life and her treatment that would have been adverse to her. That was a particular and powerfully articulated experience of one person. I believe that she spoke for many disabled people and their experience and expectations of the Health Service.

So, it is not otiose or wrong to replicate anti-discriminatory principles in the Bill, which will apply them in relation to people who have mental incapacity. That would be a good way to proceed. As I said at Second Reading, this is, in some ways, landmark legislation. It is viewed by people who lack capacity now as something of a "Bill of rights" for them. I do not believe that it would in any way undermine any part of the Bill by having an explicit assumption of equal consideration right at the front of it. I warmly recommend that the Minister accepts my arguments. I beg to move.

Lord Carter: I was glad to add my name to the amendment, because throughout our discussions we have agreed that no assumptions should be made that life has less value for people who have difficulty in making decisions or need support to make those decisions.

The concerns stem from evidence, anecdotal and otherwise—in fact, it has been almost proved this week, and I shall return to that—that prejudices of attitudes about the quality of life of a person with serious learning disabilities, autism, mental health problems or a head injury, or another condition that leads to a loss of capacity can get in the way of supporting that person and how they are, what they want and what they need. This week I have heard—but not been able to obtain—reports about people with learning disabilities and other conditions having less life expectation than others.

I was given the example of a lady with a learning disability who had a stroke and was not treated properly as a result of that disability. My understanding is that if a stroke is dealt with quickly there is a chance of some recovery. The lack of treatment meant that she was permanently disabled—more so than she had been. The inference that one can draw is that the treatment given to
 
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people with learning disabilities is subconsciously affected. That seems to have been demonstrated by the report of reduced life expectation.

Perhaps the Minister may be brief in her answer, because in the answer given in the House of Commons it was pointed out that the Disability Discrimination Act 1995 and the Disability Discrimination Bill, which is currently proceeding through this House, will provide the protection for decisions and acts carried out under the Bill. In fact, they will not, because only last Thursday in Grand Committee I moved an amendment to the Disability Discrimination Bill to bring within its purview people with episodes of depression that totalled six months over a two-year period. That amendment was turned down, as I expected, by my noble friend on the grounds that the definition of disability in the 1995 Act, which the Government intend to keep to, is that it has to be last for at least 12 months. Depression usually involves episodes of a few months at a time, followed by a partial recovery.

If someone was profoundly depressed and, therefore, lacked capacity under the Bill, can we be sure that they will be protected by it, because they will not be protected by the Disability Discrimination Bill? The example of Jane Campbell, who we in the field of disability all know well, was extremely good. She is seriously disabled and contracted pneumonia. She was told by the doctor, "Well, I don't suppose that you'll want to be resuscitated". He took his own judgment on the value of her life. That was absolutely wrong and she made it clear that she did wish to be resuscitated—her husband also made that clear. One can imagine all the occasions when doctors may be making that sort of judgment for people who are severely disabled or have learning disabilities so they cannot communicate well and so on.

The Minister might wish to claim, however, that in Clause 4(6), under best interests, it refers to having to take into account,

Would that meet our concerns? I am not sure it does, but it might be helpful. Is that the way that the Government, if they wish to, can deal with this? If they do not, I must agree that this principle should be in the Bill.


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