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The Earl of Onslow: I rise to ask a question based on curiosity—and probably a certain amount of ignorance. I believe that the Roman Catholic doctrine on death is rather different from that of the Anglican and other Churches. They tend on the whole to strive much more officiously to keep alive, in a way that possibly—I look heavily at the right reverend Prelate the Bishop of Oxford to see if he can help me here—other Churches and religions would not. Would that
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influence be affected by the amendment? Should it be, or am I barking up a tree that is not even in the same forest?
The Lord Bishop of Oxford: As I have been called on, that phrase comes, paradoxically, from an agnostic 19th-century poet called Clough. He was quoted by a pope:
That has been accepted by the Roman Catholic and the Anglican Churches—and a good range of other people—as enshrining a great deal of common sense. It is now widely accepted. There is no fundamental difference.
Lord Walton of Detchant: I add to that point that the evidence received by the Select Committee on Medical Ethics, which I chaired and which reported in 1994, made it clear that the Anglican, Roman Catholic and Protestant Churches, the Muslims and many others agreed that there were circumstances when it was totally inappropriate to continue with futile treatment, even if that resulted in death. The one group that did not agree with the principle that anyone had the right to refuse treatment, even if it resulted in death, was the Jewish faith. They said that it was contrary to rabbinical law. They were the only group which dissented in that situation.
The Earl of Onslow: I am grateful for that enlightenment. How, therefore, does even that Jewish element of faith affect the anti-discrimination views of the noble Baroness, which I think we all agree with? How should it affect them?
Baroness Greengross: I support the amendment for some of the reasons we have just heard. The amendment would provide a balance to the prevalent discrimination that people are actually unaware they are involved in.
It is extremely difficult not to make value judgments about a person's life when they are in the serious situation of lacking capacity. People believe wholeheartedly that they are acting in the person's best interests when they make such a judgment. Making the amendment to the Bill, even if it does no more than act as a sensible reminder that certain questions must be asked, would do a lot to counter what goes on all the time in our society. Sometimes people think they are kind, but often kindness can be misplaced. The people we are now discussing are at the bottom of the pile in terms of the value that society places on them, and it would be a help to them to make the amendment.
Baroness Finlay of Llandaff: I added my name to the amendment because it so important to pull clinicians up short and make sure that they offer a treatment to somebody that they would have offered to another person who had full capacity, without being prejudiced by their perception that the person does not have capacity. Clinicians must have the right attitude
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to making sure that there is equipoise in the way that they approach the treatment offered. The person who looks good and has full capacity with a 20 per cent chance of responding to a treatment will be offered it, as will a person who lacks capacity to consent to the treatment. That is equipoise in terms of the value of life, and unless we do that, there is a subliminal message that, somehow, some lives may have less value or worth. It is to get rid of the inherent prejudice that can come in. I am not convinced that disability legislation will pull people up short in the way that this amendment would, if it were made.
Baroness Wilkins: I support the amendment. I will not repeat all the arguments that have been so ably put, but the amendment is very necessary in a society where, sadly, people with severe disabilities are not seen as having the same value as others. The amendment would rectify the balance, as the noble Baroness, Lady Greengross, said.
Earl Howe: Any comments from me are otiose, but I emphasise my agreement with the points that have been made so very well, particularly that made by the noble Baroness, Lady Greengross. Given that we start off the Bill with this excellent set of principles, it is entirely right and appropriate to include an unambiguous declaratory statement of an ethical nature.
The statement says what we all believe, but more significantly it serves to buttress the general theme we debated in the first group of amendments. One cannot legislate against prejudicial attitudes, but one can make it clear, as the noble Baroness said, that such attitudes have no place when it comes to the operation of the Bill. This is not a Bill, then, where a priori presumptions about the relative values of different sorts of human life should play a part.
Baroness Ashton of Upholland: I have the papal doctrine available, and can send the noble Earl, Lord Onslow, a copy. However, I have no knowledge of rabbinical law. I wish the noble Baroness, Lady Barker, good luck in responding to that point. I am grateful to the noble Lord, Lord Walton, and we will endeavour to establish the specifics around the issue, in order to assist the noble Earl in the passage of the Bill.
In response to all noble Lords who have spoken in this debate, I completely understand and agree that no one should be discriminated against, nor receive substandard treatment as a result of disability, age, race, sex or indeed on any other grounds. I know this was an area of great discussion in another place and that the inclusion of such an equal consideration clause would mean a great deal not only to the noble Lords who have spoken but also to the Making Decisions Alliance, the I Decide coalition, and the Disability Rights Commission. In the spirit of the Bill, noble Lords will see that we are also trying to set out a way of changing attitudes and behaviour towards people who may lack capacity, which is a critical part of ensuring that people are not discriminated against. Declarations are one thing, changes of behaviour are the critical part.
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My next paragraph begins, "unfortunately". It is extremely difficult to do this from a practical and legal standpoint. Noble Lords will know that discrimination is not a simple concept. We may know what we mean by discrimination, prejudice and less favourable treatment, but in law and in legislation it requires greater definition than has been given in this amendment. I know the toes of the noble Baroness, Lady Barker, will curl as I have said this before, but the only place where we can seriously put anti-discrimination provisions is in specific anti-discrimination legislation—which of course encompasses all of the different areas of life that we seek to address.
The reason, primarily, is that if we are to have such legislation, we need to have a way of determining whether someone has received less favourable treatment. That means that we need a proper framework to support the determination of that treatment and also an enforcement mechanism.
Lord Carter: If we are not careful, we shall find ourselves being told, as we were last Thursday, that under the Disability Discrimination Bill depression is not regarded as disabling because it does not last for 12 months but that it can be dealt with under the Mental Capacity Bill. We now hear from the Minister that the Mental Capacity Bill cannot handle it and the issue is left to the Disability Discrimination Bill.
Baroness Ashton of Upholland: I was not present at the deliberations on the Disability Discrimination Bill, but I will read Hansard on the point. I suspect that there was an understanding, I am pleased to say, that people suffering from depression will lack capacity and should be regarded within the context of this Bill. However, I would hesitate to say that that would reflect issues of discrimination.
I say such things with regret because I would very much like to do everything I could to ensure that we had in place the right procedures. I simply make the point that one cannot make a declaratory statement of this nature without the framework, the way in which it would be determined and the enforcement procedures that would go with it, otherwise it would be ineffective at best.
I have already undertaken to reflect on whether there is anything we can do, but I want to make clear why I am resisting the amendment. It is specifically because the advice I have had—and I have pushed the issue, I hasten to add—indicates that we would have to proceed in that way.
My noble friend Lord Carter referred to issues of best interest. It would be inconceivable that giving someone less favourable treatment because of his disability, sex, age, race or sexual orientation could ever be considered to be in his best interests. Less favourable treatment could not be in someone's best interests, which is the point my noble friend is seeking. Within the ethos of this Bill, discrimination on any grounds would be entirely contrary to what we seek to do in protecting and empowering people.
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I could go on and talk about the provisions within existing Acts, but I know that I am speaking to an audience who know the Acts far better than I, so I shall resist. I want to make three points in conclusion. First, the most critical part of what I want to see as a result of the Bill—we have an implementation in place not to pre-empt your Lordships' decisions or those of others but to recognise there is a lot to do—is to look at the cultural shifts that we need for people to understand incapacity and recognise and value all members of our society in the right and proper way. I might describe it as a more inclusive and accepting society.
I want also to look again at the code of practice, building on what was said by the noble Baroness, Lady Finlay, about "pulling clinicians up short". She can use that phrase, but I would not dream of using it, for obvious reasons. Perhaps few clinicians read legislation cover to cover, but we would look at the code of practice to see whether we can do more. The noble Baroness indicates that I am wrong and that clinicians do read it, but we can debate that.
I want to ensure that we can give greater emphasis around best interests to say that of course it can never, never be in someone's best interests to be discriminated against. I hope that that assurance will do something. However, as I have indicated, I will look again, but I cannot include the specific amendment before us because I would need to put that framework around it. Perhaps we can discuss the matter further and on that basis I hope that the noble Baroness is able to withdraw her amendment.
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