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Baroness Greengross: When some of us had an opportunity to discuss the matter at one of the meetings outside the Chamber, a fear was expressed, which I share to some extent, that people could demand any treatment— for example, a new treatment that is being tried out in Australia—and automatically say "I want to go there". Thinking about that afterwards and about our earlier debate today, I wondered whether the principle of equality of treatment would not cover that situation to some extent, if the Bill was carefully worded.

All we are saying is that, on the premise of equality of treatment, a person who is incapacitated should have access to the same level of treatment as someone who is not incapacitated. No one in this country has a right to absolutely anything under the NHS. You cannot demand to go to wherever you want to try out a treatment. It is only if it is "reasonable". The principle
 
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of reasonableness is difficult to define, and perhaps "equality of treatment" or "access to treatment" might be helpful.

Baroness Barker: The noble Baroness, Lady Greengross, has provided more ammunition in support of my argument about equal treatment.

As I said at Second Reading, for me, this is not about people demanding a treatment so much as people not having an assumption made that they would refuse a treatment. That is where we are all trying to get to in different ways. That is one element.

The second element is slightly different, and perhaps its most important application is in the field of mental health. I know that mental health is somewhat different because it is the one area of medicine where there is compulsory treatment but, having listened a great deal lately to mental health patients talking about treatment and about compulsion, I believe that there are far greater therapeutic benefits in having advance statements in mental health, where people decide for themselves what treatment they want in a period of incapacity.

For example, someone may say "I know that when I have an episode of ill health I am likely to tell you that I do not want such and such a treatment. But here I am at the moment, with capacity, and I am telling you that if that happens I want that treatment". It is a judgment call. I am not a clinician, but something tells me that it would be far better for people who have the ability to direct their treatment rather than being subject to compulsion.

It is a slightly different matter from where we are trying to get to with regard to a presumption that people would not want matters to be prolonged.

Lord Carter: Before the Minister replies, I wish to raise a point that I meant to make but forgot to do so. It is important.

When I was thinking about this issue, I wondered what would have happened if Tony Bland had made an advance statement before he was injured at Hillsborough that he wished artificial nutrition and hydration to be continued if he became incapacitated. That would have been before the Bland judgment, obviously, and also before the Burke judgment. I wonder what the situation would have been then.

Baroness Ashton of Upholland: Tempted though I am, I will not try to address the speculative question of my noble friend Lord Carter. I understand what he says, and I hope as I talk about the amendments we will reach some conclusions about what might have happened. I start by saying to my noble friend that it is the Scottish mental health legislation that recognises advance statements and not the Adults with Incapacity (Scotland) Act 2000. I have been sent a note about that, so I presume they wanted me to say that.
 
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I am grateful to everybody who spoke with enormous clarity, and I am very sympathetic to the amendment moved by my noble friend Lord Carter. I completely understand why the noble Lord is concerned to ensure that when people positively want to receive particular forms of treatment—the noble Baroness, Lady Finlay, gave examples—they are given due weight by the Bill.

We have said that everything in the Bill is about empowering and promoting the best interests of vulnerable people. So I want to provide reassurances when talking about the amendments, and to explain a bit more about the Burke judgment. But I begin by confirming that I plan to table a government amendment on Report on the issue, because that might save anybody leaping in to table a different amendment. I want to explain a bit more about that.

We start from the premise that, if someone has taken the trouble to write down an advance decision indicating their preferences, a decision maker has a duty to consider them as part of the best interests determination under Clause 4. In the draft code of practice at paragraph 8.12, we have already explained that advance statements are a means by which patients through advance planning can continue to influence their treatment. They do this by influencing the way that a doctor determines best interest. Therefore the more specific and well thought-out the statement, the more likely a decision maker will find it persuasive in that best interests assessment.

I want to talk explicitly about treatment decisions and about the Burke judgment, referred to by my noble friend Lord Carter, which I know has been influencing the thinking of late, and to explain where the Government are on this. I agree completely that people should be able to request artificial nutrition and hydration (ANH). It is indeed what happens now. However, the judgment in the case of Mr Leslie Burke was not limited purely to artificial nutrition and hydration, because it can be read as giving patients the right to demand any life-prolonging treatment they wish, no matter how untested, inappropriate or, dare I say, expensive and, perhaps most importantly, regardless of their doctor's views on whether it would benefit them.

Up to now, the courts have always accepted that whether or not a requested treatment is provided ultimately depends upon the clinical judgment of the medical practitioner treating the patient. The noble Baroness, Lady Chapman, and I discussed that a little this morning when we met.

For example, if a patient—as in the case of Mr Leslie Burke—has made an informed request for artificial nutrition and hydration in advance, that request would be disregarded only if the doctor, weighing up all the other circumstances and factors, found that providing ANH would be contrary to best interests—for example and most obviously if it were clinically detrimental to the patient, as it sometimes can be, or otherwise damaging or distressing to the patient. That goes some way to answering the question posed by my noble friend Lord Carter about what would have happened in the case of Mr Bland.

It is vital—I think that noble Lords accept this—that there are clear principles for medical professionals to follow to get the best healthcare available. Therefore the
 
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Department of Health has joined the General Medical Council's appeal in the Burke case, not because it thinks that advance requests should not be taken seriously—far from it—but to get clarification of how far patients can actually require treatments to be provided.

To conclude on my noble friend's amendment, the Mental Capacity Bill will offer people with capacity the opportunity to plan ahead for a time when they may lack capacity and to make others aware of what their wishes are, including any treatment they would wish or not wish to receive. As I have indicated, I will table a government amendment on Report to make that clearer.

I want to talk a bit about the amendments grouped with this amendment, although I have dealt with the main thrust of this group in what I have said.

Amendment No. 82 would ensure that advance decisions can request the continuation of treatment as well as refusing it. I sympathise with what the noble Baroness, Lady Chapman, is seeking to achieve but again, I refer to the Burke judgment and where we are with clinical practice. We cannot be in a position in which patients can demand any treatment, whatever the circumstances. That is why, when I bring forward proposals on Report, they will be within the wishes and feelings context of Clause 4 to ensure that these requests are followed with regard to all the relevant circumstances in the individual case.

I say to the noble Baroness, Lady Finlay, that my issue with her amendment is about the same status as advance decisions to refuse treatment. In order to make sure that we fit within best interests and clinical practice, these are important statements which should be recognised, but recognised within the context of what is in the best interests of the patient. At the time of making the decision, patients may not be aware that the treatment in the future may not be appropriate for their particular condition or that better treatments are available which would make life better for them. Given my commitment to bring forward an appropriate amendment on Report, I hope that my noble friend will feel able to withdraw his amendment.

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