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Lord Bach: My Lords, the in-service date for any project is not decided upon until the main investment decision—main gate—is reached, for very good reason. It is then that you look at the whole project, see where you are with it and what the trade-offs have been and then decide on a date. The year 2012 is still the date that we have in mind for the first aircraft carrier.

Mental Capacity Bill

3.7 p.m.

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
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Moved, That the House do now again resolve itself into Committee.—(Baroness Ashton of Upholland.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES (Lord Brabazon of Tara) in the Chair.]

Clause 26 [Effect of advance decisions]:

Earl Howe moved Amendment No. 90:

"( ) Where a person reasonably believes that an advance decision exists which is valid and applicable to the treatment, he does not incur liability for failing to implement the decision if and only if—
(a) to implement the decision would contravene a conscientious, ethical or religious belief which he holds, and
(b) he directs another person to take over responsibility for P's treatment."

The noble Earl said: We now come to an issue which has been mentioned to me by more than one member of the medical profession. This amendment, which is, I hope, very simple and self-explanatory, sets out that concern. I hope that the Minister will be sympathetic to it.

Advance decisions will sometimes present doctors with a very difficult situation because implementing the decision would involve going completely against what they see as clinically necessary for the patient's welfare and best interests. Yet, if the decision is legally binding by being both valid and applicable in accordance with the Bill, there will be nothing that they can do about it.

We need to give the medical profession the legal certainty in the Bill that, where a doctor in charge of a mentally incapacitated patient has a real ethical or conscientious objection to implementing that person's advance decision, he does not have to do so. A subsection of this kind would parallel other conscience clauses in legislation, such as the Abortion Act. However, of course, there has to be a proviso. A doctor cannot simply walk away from his patient. If he decides that he needs to trigger the conscience clause, he must ensure that he passes responsibility for the patient, in a formal way, to another suitable medical practitioner. I beg to move.

Lord Alton of Liverpool: I support the spirit which lies behind the amendment moved by the noble Earl. My only concern is the way in which it is phrased and whether it takes into account sufficiently the criticisms that have been made by the Joint Committee on Human Rights, which has looked at how conscience clauses work generally. It says in regard to this approach that it does not allow the doctor who does not want to be involved to walk away completely from the situation; he has to refer it on to someone who would be willing to do the things to which he takes ethical objection.

We have to examine that question again in the context of the Abortion Act 1967, to which the noble Earl referred. The experience of that legislation is that
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it has placed an unhappy responsibility on practitioners who feel uneasy about what they are being asked to do and who do not therefore like to be asked to commission someone else to do what they would rather not do themselves. So I support the spirit of the amendment. I hope that we will incorporate a conscience clause into the Bill. It is an issue that I have raised with the Minister during our meetings; it is an issue that I raised at Second Reading. But we perhaps need to think a little further about the detail.

The Lord Bishop of Oxford: I too support the spirit of the amendment. The rights to safeguard conscience are very much part of the culture of our country and are enshrined in law in a number of ways. Therefore, this provision would be nothing that is unusual or untoward. As has already been made clear, patients are not going to suffer as result of it because alternative provision has to be made. So it is eminently sensible and right to support at least the spirit of the amendment, even if the wording needs to be altered in some way.

Lord Christopher: A small point. Members of the Committee have spoken largely about doctors, but the amendment does not mention them. The word "person" is so potentially broad that it needs to be adjusted to the kinds of things that I think were intended.

3.15 p.m.

Baroness Ashton of Upholland: I fully support the principle that I know lies behind the amendment. As I discussed with the noble Lord, Lord Alton, doctors are entitled to have their personal beliefs respected and should not be pressurised to act in a way that is contrary to those beliefs. We recognise that doctors and other health professionals may disagree in principle with a patient's right to refuse life-sustaining treatment or may have moral objections to withholding or withdrawing life-prolonging treatment in some circumstances.

It is for that reason that the Bill does not change the current position on the issue of conscience. Doctors and other healthcare professionals can choose to relinquish the management of a patient's care if they have a conscientious objection to their refusal of consent to treatment. However, they have a duty—I make no apology for it—to ensure that arrangements are made for another doctor to take over their role, so that the care of the patient does not suffer. I refer noble Lords to the President of the Family Division in the case of Re B (Consent to Treatment: Capacity) [2002]. The case involved a patient with capacity who refused the continuation of artificial ventilation. The president said at paragraph 100:

That is the position now, and it will remain the position under the Bill.
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Although the noble Lord, Lord Alton, may wish for something else, I am not sure that, if a patient has made a decision about himself—let us assume that he is with capacity—and a doctor feels unable for reasons of conscience or religious belief to participate, if I may put it like that, with the patient, it is for the doctor then to impose his view on the patient. The patient, after all, is an autonomous person.

Although I understand the dilemmas in that situation, we have been very clear. Indeed, the British Medical Association and the General Medical Council have issued guidance to health professionals on the issue. Both bodies clearly state that if a doctor or health professional cannot, for reasons of conscience, accede to a clear, valid and applicable advance decision, he should make his views known to the patient at the outset, allowing him the opportunity of having his care and treatment transferred. If the person lacks capacity, the management of the case should be transferred to another suitably qualified health professional without delay, so that the patient's care does not suffer.

We have reaffirmed the guidance of the BMA and the GMC in the draft code at paragraph 8.43. I say to the noble Lord, Lord Alton, that I understand the issues that lie at the heart of what the noble Earl seeks to achieve, but it is important to remember the raft of safeguards around advance decisions to make sure that a doctor is absolutely clear about when a decision is valid and applicable. Those now include the additional safeguards in the amendments tabled for Committee, so that an advance decision will have no application to any treatment which the doctor considers necessary to sustain life unless strict formalities have been complied with. I know that the noble Lord, Lord Alton, welcomes those safeguards. As I have said, there must in addition be an express statement that the decision stands, even if life is at risk.

We have made sure also, in Clause 26, that, in any cases of doubt, the balance is tipped very firmly towards the preservation of life. That is one of many reasons why the Bill is so important. If a doctor or other healthcare professional is not satisfied that a valid and applicable advance decision exists—if he has any doubt at all—he can treat the patient without fear of liability.

So the conscience clause already exists in what the BMA and GMC do. We have reaffirmed it in the code of practice. It has stood the test of time to enable doctors, understandably and rightly, to exercise their conscience and their religious beliefs appropriately while making sure that the patient is cared for. I am grateful to the noble Earl for raising the issue, but it is already covered in the existing rules. On that basis, I hope that the noble Earl will withdraw his amendment.

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