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An action carried out on or in relation to a person who lacks capacity to consent to it ("P"), notwithstanding that the action may not be in his best interests, is lawful if and only if in the opinion of two registered medical practitioners
(a) the action has the potential to avert the death of, or serious illness in, another person;
(b) there are reasonable grounds for believing that the risk to P in performing the action will be negligible;
(c) anything done to P will not interfere with P's freedom of action or privacy in a significant way or be unduly invasive or restrictive."
The noble Earl said: Amendment No. 128 is prompted by concerns raised by the BMA. The Bill does not tackle interventions that are not in the best interests of the incapacitated person but are minimally invasive and provide a significant benefit for third parties. Perhaps the most obvious example of this type of intervention is where a nurse or other health professional has suffered a needle-stick injury and there is good cause to think that the patient may have a serious blood-borne condition such as HIV, for which
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treatment is available. In those circumstances, the Bill appears to rule out taking a blood sample from the patient for testing.
There is no way of making an informed decision about whether to give treatment to the injured nurse, and no way of communicating with the patient. GMC guidance makes it clear that anyone taking a blood sample in these circumstances could render themselves liable to criminal charges. Even the testing of an existing sample could be challenged in the courts. That is surely not a desirable state of affairs.
The second situation I want to mention under this heading is genetic testing. The Human Tissue Act 2004, I am very glad to say, contains a provision for regulations to allow genetic testing of a tissue sample from an incapacitated adult for limited purposes other than their own medical benefit. However, it is the Mental Capacity Bill which would cover the taking of samples for such purposesthat is, if only there were an appropriate provision allowing it.
I need to ask the Minister whether taking blood for genetic testing for the benefit of a relative would satisfy the best interests test as a matter of law. This was one of the issues that troubled the Human Genetics Commission in its report of 2004 called Inside Information, and we need clarity on it.
Baroness Barker: I should like to speak to Amendment No. 128A, which drives at the same point that the noble Earl, Lord Howe, has raised. On balance, I probably prefer the wording of his amendment to mine, so in the highly unlikely event that we succeed with this one, I shall give way to the noble Earl.
"I can confirm that the Bill will not prevent a genetic test for a familiar cancer, for example, that might not be essential to P's medical care but would provide considerable benefit to some other family member.
"Similarly, HIV testing would be lawful if there were a needlestick injury to a nurse involved in P's care and if a timely diagnosis of HIV status would be in P's best interests, so that treatment could be started".[Official Report, Commons, 14/12/04; col. 1601.]
The point about which the BMA is concernedin my view it is right to be concernedis that it is not yet clear whether these kinds of tests could be made only where there was a clear direct benefit to P rather than to a third party. My fear is that where third parties have a legitimate concern they might end up manufacturing reasons to get the result that they need. I hope that the Minister will respond to that.
Lord Warner: We are in deep legal territory with this set of amendments. I have taken careful note of points made by noble Lords and of points previously raised by the British Medical Association about acts relating
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to care or treatment of third parties. We are very sympathetic to the difficult position in which doctors can find themselves placed when faced with the need for testing of the kind that was mentioned by noble Lords and by the BMA. However, the Government have rightly made the principle of best interests the cornerstone of the Bill, and it would therefore seem unacceptable to make a provision for testing a person who lacks capacity for a purpose that is not in his best interests.
In earlier correspondence with Ministers the BMA understandably sought assurances that it would sometimes be possible to conduct a diagnostic test that might primarily be of benefit to a family member, in the case of genetic diseases, or perhaps to a nurse or doctor if a needlestick accident had occurred during treatment given to the person without capacity.
Our view is that an amendment to the Bill of the kind proposed is unnecessary. We consider that as it currently stands, the Bill would allow for acts the primary purpose of which would be to benefit a third party, provided that those acts are in the person's best interests. I would like to assure the Committee that the interpretation of best interests could be broader than the person's medical best interests. That is the critical point which is at stake.
As was said in another place, I can confirm that the Bill will not prevent a genetic test for a familial cancer, for example, that might not be essential to the person's medical care, but would provide considerable benefit to some other family member. Similarly, HIV testing would be lawful if there were a needlestick injury to a nurse involved in the person's care, and if a timely diagnosis of HIV status would be in the person's best interests so that treatment could be started.
I am pleased to be able to say that we will make it clearer in the code that in such cases the possible wider benefit that accrues from testing that has been endorsed in legal judgmentsthose legal judgments are criticalwill continue to be an important factor in determining best interests. If a diagnostic test is in the best interests of a person who lacks capacity, it should be lawful and doctors performing such tests have the protection from liability afforded by Clause 5. It is a matter of legal interpretations using the basis of previous legal judgments. Certainly our legal advice is that the kind of circumstances mentioned by the noble Earl, Lord Howe, and the noble Baroness, Lady Barker, would be covered under the Bill as it is currently drafted. However, we accept that clarifying these legal interpretations in the code is a desirable and essential way forward.
We will also consult on a role for the independent consultee in such decisions so that there are mechanismsother than the Court of Protectionto ensure that the person's best interests are being met in light of the specific circumstances of each case.
Baroness Knight of Collingtree: I was very impressed with the intention in paragraph (c) of the new clause to
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ensure that anything done to the patient "will not interfere" and so onthe words are there for everyone to read. Does the Minister feel that the Bill's current wording looks after that point raised in my noble friend's amendment?
Lord Warner: The nub of what I was saying is that the concerns expressed by the BMA and by the noble Earl and the noble Baroness, Lady Barker, are already met in the Bill because of the legal judgments relating to the wider interpretations of best interests. I was saying that, no matter how beautifully crafted, the wording in the amendments tabled by the noble Earl, Lord Howe, is not necessary because the protections he is seeking are in the Bill as presently drafted.
Earl Howe: I am very largely reassured by that reply. I am grateful to the Minister for confirming that the Government will look at ways of clarifying the code of practice. I am, however, left with just a residual niggling worry. The problem with what the Minister has said is that his reassurance is predicated on the assumption that there will always be some benefit to the incapacitated adult in taking a blood or tissue sample, even though that may not be the prime purpose of the intervention. In the case of a needle-stick injury, what happens if the patient is not expected to recover? If there is no clinical benefit to the patient, and no other intangible benefit at all to the patient in the blood sample being taken from him, it is difficult to see how the best-interest test would be met in those circumstances.
Nevertheless, I am comforted by the Government's reading of the Bill as it stands. I think that that is an important statement by the Minister. I shall reflect on what he has said. I beg leave to withdraw the amendment.
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