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Lord Carter: I am very grateful to my noble friend, and I need not take up the Committee's time. If the Government intend to bring forward an amendment on Report, we must wait and see what it says and deal with the issue then. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 16 and 17 not moved.]
Baroness Ashton of Upholland moved Amendment No. 18:
On Question, amendment agreed to.
Clause 4, as amended, agreed to.
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Clause 5 [Acts in connection with care or treatment]:
Lord Carter moved Amendment No. 20:
Page 3, line 43, leave out from beginning to ", and" and insert "has capacity to consent to the act and must ascertain P's best interests if P is unable to consent for himself in accordance with section 4"
The noble Lord said: Amendment No. 20 deals with acts in connection with care or treatment, under Clause 5. This is the phrase the Government have devised instead of "General Authority", which was in the draft Bill. In fact, that was a very good and accurate term but it led to a fair amount of misunderstanding. The fact that it was referred to as a General Authority—with initial capitals—led one witness to think that it was an authority like the Port of London Authority or the Covent Garden Market Authority. We had to explain that it was a concept, not an authority. I am afraid that we could not think of another phrase and told the Government that they must, so they came up with:
The amendment deals with the protected act—the act which is protected under what we used to call the General Authority. This will be subject to the test of best interests, which assumes that a person lacks capacity and that a decision needs to be taken in their best interests.
The amendment strengthens the overriding obligation to maximise capacity and decision-making and supported decision-making before there is a substitute decision under a protected act. It would serve as a reminder to informal and paid carers that the first step is to ascertain that a person has capacity and that any action—once it is established that a person lacks capacity—must be based on his or her best interests. It is important to clarify the intent of the protected act in order to counter concerns about its concept and purpose. It is quite strongly felt that decisions will be taken that are best for the professional carers rather than for the individual concerned. The amendment seeks to improve the links between Clause 5 and the principles in the Bill, as well as the best interests criteria in Clause 4.
Amendment No. 27, which is in the same group, deals with the treatment safeguards and comes at the situation from a different angle. Clause 5 offers statutory protection against liability for certain acts in connection with care or treatment. If an act qualifies as a protected act, the carer or other decision-maker can be confident that they will not face a civil liability for criminal prosecution. But there is no guidance in the Bill as to the full scope of the protected act, and an argument has been put by the Making Decisions Alliance, which briefed me on this, that medical treatment should have additional safeguards before it can be provided to someone who does not have capacity.
The amendment seeks to probe the situation, setting out the medical treatment safeguards that we believe should apply. With the most serious treatments and procedures, such as sterilisation and organ donation, there is an argument that the Court of Protection should decide whether the treatment or procedure should go ahead. For other significant treatments such as ECT and the long-term provision of a treatment, we believe that
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the second opinion of a doctor should be involved. The amendment also makes it clear that a representative must be involved when decisions are made about the provision of these treatments. It also allows for regulations to specify further treatments to which safeguards should apply. The Royal College of Psychiatrists supports these amendments. I beg to move.
Earl Howe: I shall speak to two amendments in this group, Amendments Nos. 21 and 94. I need not spend too long on Amendment No. 21, which merely seeks the Minister's reassurance on a very simple point. When a carer or doctor who is looking after the incapacitated person is doing so as an employee or agent of someone else, it is important that the employer or principal of the carer or doctor will not be in any way liable for anything done to the patient, so long as the carer or doctor himself acts lawfully within the scope of Clause 5. Can the Minister provide that assurance and, if so, can she say why the provision does not have to appear explicitly in the Bill?
On Amendment No. 94, Clause 27 sets out a range of matters that fall outside the scope of the Bill, in the sense of decisions being taken about them on behalf of an incapacitated person. I propose that there should be an addition to that list, albeit a qualified one, and that is that nobody—neither a doctor, an attorney, nor a court deputy—should have the authority to give consent to the removal of an organ or other tissue for the purposes of transplantation. I suggest that that very sensitive decision should be reserved for the court and the court alone.
Removing an organ, bone marrow or any other sort of tissue from a patient, whether mentally incapacitated or not, is an invasive process which is not without some risk. One cannot say that it will provide direct therapeutic benefit to the patient, although it is certainly possible to argue that looked at in a wider context it is in the person's best interests for the tissue to be removed. Indirectly, it may be of huge value to the person that a close relative, for example, will be given the chance of therapeutic treatment by virtue of such a transplant—a relative who may also be a carer, say.
There are all kinds of scenarios that one can imagine in which the best interests of the person are best served by permitting the donation of tissue. But I am uncomfortable with the thought that a doctor, acting jointly with a relative or attorney, might take such a decision on his or her own. It would be very helpful to hear from the Minister about that. I hope that she will have some sympathy with the argument that I have advanced, because we need to reflect carefully on the issue.
Baroness Chapman: I have tabled Amendment No. 22, because I feel that many people with physical or mental impairments or with a condition causing diminishing mental capacity are made to feel that other people know best what their needs are. They may be medical professionals, social workers or members of their own family. Someone judged as having little or
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no mental capacity is much more vulnerable to agreeing to things under duress, not being included in a decision or being made to feel that they have to give a right answer. Many people feel disempowered while in a hospital environment. This amendment would help to protect them from abuses of power and is designed to ensure that independent advocacy is available and that the patient will have an automatic right to a complaints procedure.
Baroness Finlay of Llandaff: I support the principles behind the amendments in this group, particularly as regards Amendment No. 20, to which I have added my name and to which the noble Lord, Lord Carter, has already spoken. For the record, I was slightly surprised at even the possibility arising of an organ being removed from a live donor who lacks capacity. That is a very helpful example as it underlines why advance statements might be very helpful as regards the whole field of organ donation. Although someone may be already brain dead, they may have a donor card and be maintained on a ventilator in perfuse, so a perfused organ is being removed. However, as regards the process of decision-making for the family, it may be very helpful to have an advance statement. That is a spin-off. It is lateral to the wording of the amendments that we are discussing, but will the Government consider that in drafting the amendments about advance statements and think about whether the donor problem that we have in the UK might be solved at the same time?
Baroness Ashton of Upholland: I am grateful to Members of the Committee who spoke to this group of amendments. I could say a lot about the purpose of Clause 5, but having listened to those who have spoken, I consider that the Committee is fully aware of its purpose. Indeed, we might have a clause stand part discussion in any event. Therefore, I shall work on that assumption and trust that Members of the Committee will intervene if they have a concern that needs to be addressed by further exploring the parameters of the clause.
Amendment No. 20 was spoken to by my noble friend and the noble Baroness, Lady Finlay. Clause 5(1)(a) states that,
"before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question".
The amendment seeks to change the wording to,
"before doing the act, D takes reasonable steps to establish whether P has capacity to consent to the act and must ascertain P's best interests if P is unable to consent for himself in accordance with section 4".
I welcome the sentiment behind the amendment but I believe that it is already contained within the Bill. The purpose of Clause 5, above everything, is to provide protection against liability where a carer acts when someone lacks capacity and thus cannot consent. So the lack of capacity has already been established for the purposes of this clause. If a person has capacity, Clause 5 is simply not engaged and the Bill is "exited" at Clause 3, if I can describe it in those terms. We have
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worked through that clause and ascertained when a person has capacity. Therefore, we believe it is appropriate that the reference is to taking steps to establish a lack of capacity.
The proposed amendment would also stress that, if the person cannot consent, the decision-maker should ascertain P's best wishes in accordance with Section 4. However, the need to consider the person's best interests is already addressed in subsection (1)(b). This provides that, for the protection of Clause 5 to apply, the decision-maker must reasonably believe,
If the decision-maker acts on that basis, the protection that is available in Clause 5 comes into play. That would, of necessity, involve ascertaining the person's best interests.
I hope that my noble friend will reflect on that as he considers what to do with the amendment and that he will understand that if someone has capacity he or she exits the Bill at Clause 3.
The noble Earl, Lord Howe, asks a very specific question in Amendment No. 21. As the noble Earl indicated, the protection offered by Clause 5 is aimed at those who actually do the acts in connection with care and treatment that might otherwise incur criminal or civil liability. It is unnecessary to extend the protection to the person instructing the action for two reasons: first, it is unlikely that an instruction to a member of staff to act could of itself create criminal or civil liability. Secondly, even if it did, the amendment is still unnecessary as the instruction would itself be an act to which the Clause 5 protection would apply. So for those two reasons, which I hope completely address the point made by the noble Earl, it is not necessary to accept the amendment, because the fear that the noble Earl expressed would not be realised under the Bill.
The noble Baroness, Lady Chapman, spoke to Amendment No. 22, which has the effect of placing a series of new duties either on the person performing the act in connection with the care or treatment of the person lacking capacity, or on the Secretary of State. For the decision-maker to gain the protection against liability offered by Clause 5, if it is an attorney, a deputy, or an independent consultee acting in a professional capacity or for remuneration, he must have regard to the code of practice, as Clause 40(4) makes clear. It is important to be clear that any code of practice issue will be allowed to be used as evidence in court proceedings and could be taken into account by a court or a tribunal. It also provides that "P" should have a right of appeal to the Court of Protection.
I agree that a decision-maker should assist people who lack capacity to find advocacy services where this is appropriate. We agree that the availability of advocacy services is helpful in supporting vulnerable people to live independently and to take as much control over their lives as they can. We will highlight the contribution that advocates can make in the code of practice, and we will stress that under "best interests" decision-makers must consult an advocate if the person who lacks capacity wishes them to do so.
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That is different to setting out a procedural requirement to help the person to find advocacy support in every case, which would be bureaucratic and resource-intensive. Not everyone would want to feel obliged to have an advocate. There are real issues too about how families interact and the support that family members can provide for individuals. We should not presume that everyone wishes to have an advocate any more than we should insist that people have to use their relatives. I am not taken with the idea of making that a requirement. I am also unsure about having to invoke that service in every case, regardless of what the decision might be—it might be to provide a wheelchair, or prescribe painkillers. That would not always be the best use of resources and it would not always target those people who are most vulnerable. We live in a world of limited resources. I would prefer to examine the way in which we support the most vulnerable through independent consultee/advocacy services, and the decisions where that seems most appropriate. It is for those reasons that I resist this amendment.
I also resist the establishment of a new complaints procedure, because we want to ensure that existing complaints procedures are used effectively—that is often where the expertise lies. That would be the right way forward; a new bureaucracy would be cumbersome to set up. We recognise that the Court of Protection will be available for resolution of cases, including complex or sensitive cases, and that would include cases where urgent medical treatment is needed and serious cases involving ethical dilemmas in untested areas. Clause 22 asks that the person who lacks capacity should have a right of appeal to the court, and we fully agree with that. Under Clause 48, a person who lacks or may lack capacity can make an application to court without first getting permission to defend his rights. Clause 48(1) makes clear that anyone with parental responsibility for a person under 18, a donor or "donee" or lasting power of attorney, deputy, or person named in an order will not be required to obtain permission from the court to apply.
The amendment also addresses the question of the Secretary of State providing regulations on what constitutes care and treatment. I sympathise with the desire for clarity and for definitions. Inevitably, some of the statutory definitions are inflexible and do not necessarily stand the test for many years. What matters is not how something is defined, but whether it is provided in someone's best interests. Again, I go back to the best interests test. It is then the doctor's duty to provide it. If it is not provided, there may be an issue of negligence, or even gross negligence; for example, manslaughter. That is true now, and it will remain true when the Bill becomes law.
I move finally to Amendments Nos. 27 and 94. Amendment No. 27 is a rather lengthy amendment that covers several important issues and looks to put procedural safeguards in statute for certain specified treatments. As the noble Earl, Lord Howe, indicated, Amendment No. 94 focuses on organ donation. I agree that my noble friend Lord Carter has highlighted areas about which we need to be rightly concerned and where we want to see medical practitioners operating
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to the highest standards. I understand why he seeks to set those out in statute. However, I want to set out briefly why such issues are more appropriately handled through either the code of practice or guidance.
Amendment No. 27 requires that certain serious medical treatment decisions should always be taken to the court. Case law has set out two categories of case that should have prior sanction of the court—sterilisation, where that is not clearly for therapeutic purposes, and the discontinuance of artificial nutrition and hydration for a patient in a permanent vegetative state. The case of Mr Tony Bland has already been referred to this evening. The Government intend the situation in both those cases to continue under the Bill.
The current law has developed by guidance in case law responding to difficult cases. We want the courts to continue to decide which cases should have their prior sanction, not to create inflexible legal rules that may incur high costs and an often lengthy process of litigation. However, as I mentioned in relation to the previous amendment, it is important to maintain flexibility to provide for new treatments as they arise. For that reason, we consider that it would be most effective to use the codes of practice to specify the situations where decisions should be taken only by a court. Paragraphs 5.21 to 5.24 of the draft code set that out.
It is unnecessary and inappropriate to require all organ donation cases to be considered by a court. Under the Bill, the removal of tissue for such a purpose would be subject to the best interests test. Again, we are back to that as a core part of the Bill. The storage and use of tissue would also be subject to regulations to be made under the Human Tissue Act 2004. It has already been indicated that those will be consistent with the Bill.
What is more, donation by living donors—whether competent or not—will be allowed only in accordance with regulations to be made under Section 33 of the Human Tissue Act. Where necessary, cases will be subject to specific approval by the Human Tissue Authority, so a procedure will be available for the protection of persons without capacity. The regulations will be made by affirmative procedure, so will be subject to the scrutiny of this House.
Amendment No. 27 also requires certain categories of treatment to be subject to an independent second opinion. Again, I understand that the amendment aims to protect people from exploitation or from decisions being made as a result of inappropriate value judgments. However, where serious decisions are being considered, there are already adequate safeguards under the Bill. When a treatment has particularly serious consequences or where a doctor has some doubt about how to proceed, it is already standard practice to gain a second opinion. We want that practice to continue.
Under the best interests criteria, professionals would be expected to consult fully about serious decisions, and it would be open to family or friends to ask for a second opinion, if that had not already happened. Any disputes
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that could not be resolved locally could ultimately be taken to the Court of Protection. We have also provided for an independent person to be consulted when serious medical decisions are taken for people who are "unbefriended". That independent person can ask for a second opinion if they have any concerns.
I support the intention behind my noble friend's amendment—to make sure that right procedures are followed at all times, not left to individual good practice. I hope that Members of the Committee will recognise that, although we agree with the need to take certain cases to court and for a second opinion to be provided wherever it is asked for, it would be bureaucratic and inflexible to provide such safeguards in the Bill. It is the inflexibility about which I would be most concerned. We believe that the best place is the code of practice, which reflects existing best practice. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.
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