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Lord Walton of Detchant: The motivation underlying the amendment is unexceptionable. There are many issues arising out of the speech of my noble friend Lord Alton which make the amendment worth serious consideration. I agree wholly with his point about withdrawing food, fluid and nutrition from a sentient patient; under no circumstance would I contemplate it. As your Lordships' House has considered previously, and as the High Court and the Court of Appeal have considered, the issue that arises in relation to patients in a permanent vegetative state is totally different.

However, my concern is that, until the Government achieve their objective of computerising all medical records so that all information about decisions made on behalf of and for patients can be retrieved, the amendment could impose upon the staff of health authorities and others an intolerable burden which might be unacceptable. Already, doctors, nurses and other healthcare professionals in the NHS are under an increasing burden in reporting on issues relating to waiting lists and a huge number of other government initiatives. That takes them away from their primary concern of patient care.

My only concern, which I express in all conscience to my noble friend, is that if the amendment were agreed, until the full computerisation of medical records in the NHS has been achieved, it could impose on NHS staff an intolerable burden that might be impossible to fulfil.

Baroness Masham of Ilton: My Lords, I support my noble friend Lord Alton on this matter. We must think carefully about the problem of Shipman and the danger that patients can be in. There must be some provision. I look forward to the Minister's reply; I hope that it is a successful one.
 
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7.45 p.m.

Baroness Ashton of Upholland: My Lords, I am very grateful to the noble Lord, Lord Alton, for giving me the opportunity to address briefly the Daily Mail article. I know that that is why the noble Lord raised the matter.

It is true that the Department of Health has applied to join the GMC in the Burke appeal but it did so because it seeks clarity. It believes that ANH should always be provided where it is in the patient's best interests. Where patients request ANH they should receive it. However, the judgment could be read as allowing patients to request any life-sustaining treatment, even if it was harmful to the patient or if the treatment was not available, such as a transplant or a very expensive, experimental treatment that in the clinical judgment of doctors was not appropriate or in the patient's best interests. Those are the only grounds on which the Department of Health has joined the appeal.

I take issue slightly with the noble Lord's remark about what he called the "dogmatic" view about ANH. I know that he benefited, as I did, from the meeting with Mr Rob George, who as a palliative care expert talked about why ANH was a treatment and about the importance medically of thinking of it as such and not as the equivalent of food and water. The reason is that it is invasive; it requires blood to be taken; it runs the serious risk of infection, and so on. I am in the company of medical staff, so I shall be quiet about that from now on otherwise I will be in danger of pretending that I know things when I do not. However, I do not think that I have said anything contrary to the views of those noble Lords.

I understand why the noble Lords, Lord Alton and Lord Brennan, and the noble Baroness, Lady Masham, have tabled the amendments. I sympathise with their aim to ensure that appropriate mechanisms are in place to assess how donees of lasting powers of attorney or deputies perform their functions and ultimately to protect vulnerable people. However, I am concerned about prescribing that in legislation; I do not think that the noble Lord will be surprised to hear me say that. Nor am I sure that creating a database of the numbers and types of decisions about medical treatments made by lasting power of attorneys and deputies is necessarily the best way to address the noble Lord's concerns.

Naturally and rightly, we are very concerned to ensure that inappropriate decisions are not made about medical treatments—and not just by donees of lasting powers of attorney and deputies. That is why, for example, the National Patient Safety Agency has introduced a national system for reporting and learning from patient safety incidents, which is gaining international recognition and praise.

By the end of December, all 607 trusts in England and Wales were linked to the National Reporting and Learning System. In parallel, the National Patient Safety Agency will run a comprehensive training programme to enable NHS staff to use the new reporting system effectively. The agency is already training staff to use the techniques of root-cause
 
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analysis, giving them an investigative tool to analyse and understand the real, root causes of the adverse incidents that they experience and to take action at a local level to prevent them happening again. That is supported by the 31 patient safety managers based in each strategic health authority region across the country.

Where decisions about medical treatment are made by donees of lasting powers of attorney and deputies, we expect that to be recorded in the patients' medical records. That will be an important part of training and guidance for healthcare professionals in implementing the Bill. They will not make such decisions in a vacuum because healthcare professionals will be closely involved in the decision process. Where healthcare professionals or friends and relatives have concerns about the decisions made by attorneys or deputies, they will have access to the Office of the Public Guardian to voice their concerns, and ultimately to the Court of Protection to challenge those decisions.

As part of the plans for implementing the Bill, we are taking steps to ensure that the Office of the Public Guardian will be in a position to monitor the role of deputies. There will also be a record of disputed decisions that have come before the Court of Protection. The confidentiality of those concerned will be protected.

The Court of Protection will keep records of cases, including those involving medical treatments. The Public Guardian Office is reviewing what IT and record-keeping systems will be necessary to support the new court. We envisage that it is likely to include a breakdown of cases involving deputies and donees of lasting powers of attorney.

As for recording the medical treatment decisions taken by attorneys and deputies, the amendment would, as the noble Lord, Lord Walton of Detchant, implied, result in the need to create a new system to record the number and types of decisions about medical treatment made by attorneys and deputies. As we have discussed in Committee, decisions about life-sustaining treatment are complex. I am not sure that simply measuring the number and types would give a clear enough picture of whether such decisions were appropriate. Simply adding up each decision would not demonstrate whether the right decision was made. In our earlier discussions, the noble Baroness, Lady Finlay of Llandaff, described how decisions were made day by day and hour by hour in many cases.

The emphasis of the Bill is on focusing on a person's best interests and making decisions in that context. I am not convinced about separating out information about the number and type of decisions that are, in a sense, made without reference to the best interests test. It might give only a partial view.

Inevitably, there would be difficulties in capturing some of the information suggested, as the NHS does not collectively capture information about whether a treatment has been withdrawn or withheld. As I have said, it is difficult to determine what "life-sustaining" means; there is no neat category. In Committee, we have discussed the fact that, in certain circumstances,
 
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treatments such as antibiotics could be life-sustaining, and, in other cases, they would not be. ANH is not always used for life-sustaining reasons; it may be used to help a patient in intensive care to recover more quickly, although their life would not be in danger if they did not receive that treatment.

That is a long way of saying that I have great sympathy with the noble Lord, but I am not convinced that collecting the information purely for the purposes of preparing an annual report to Parliament is the best use of inevitably limited resources. I have tried to indicate some of the other ways, through the Office of the Public Guardian and the National Patient Safety Agency, in which we have tried to deal with some of the questions that the noble Lord and the noble Baroness, in particular, raised.

I hope that, on the basis of what I have said, the noble Lord will be able to reflect on whether I have captured within the work of those two organisations in particular some of his concerns. Perhaps the noble Lord will reflect with me before Report on whether there is any more that I could do.

Lord Alton of Liverpool: I am grateful to the Minister. Could she identify the areas that, she feels, would be in addition to those that she has already identified about which information will already be in the public domain through the Office of the Public Guardian and others?

My noble friend Lord Walton of Detchant raised a proper concern about not creating a bureaucratic nightmare for people in the NHS, and I agree with what he said. However, if the information is already in the public domain, even if it is only a partial view—we heard all the caveats that the Minister just entered—it would be better than no view. We could be left with no way of monitoring the way in which the legislation works. That is what inspired me to table the amendment in the first place, and it is why I would like to explore the issue a little further with the Minister.


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