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Lord Christopher: My Lords, does the American research to which the noble Lord referred look also into the extent of the knowledge of the patient of the situation and the knowledge of the proxies of the situation?

Lord Patten: My Lords, I am afraid that I cannot answer the noble Lord, Lord Christopher, on that point, but I will look into it. As I used to say when I clutched the edge of a Dispatch Box, I will write to the noble Lord.

Baroness Chapman: My Lords, the amendment gives me great cause for concern. Throughout our debates, I have argued for a person's whole life to be considered. If the amendment is accepted, end-of-life decisions would become medical decisions, based on the person's condition and nothing else. That would jeopardise the lives of many disabled people.

I have been very vocal about my worries about the Bill. Having listened to the debates in this place and following a meeting with the noble Baroness, Lady Ashton, I believe that my remaining concerns can be addressed in the codes of practice and other guidelines.

I therefore hope that I can be involved in drawing up the codes of practice to ensure that the concerns that have been voiced by me and others in the House are incorporated. It is essential that all that we have been promised is included to protect the people who fall within the scope of the Bill and any one of us who at a later date could lose capacity.

Provided that the protection is there, the Bill will protect many people who are at present unprotected. In many cases, this is the patient; in some cases, the doctor. The Bill includes many amendments made in this House. I thank the Minister for her time and patience.

Baroness Ashton of Upholland: My Lords, I begin by echoing the sentiments of the noble Baroness, Lady Barker, without embarrassing the noble Earl, Lord Howe. Sometimes, Members of the Opposition or those who sit on other Benches get credit only when they win votes, but we should not be in any doubt that the noble Earl has played a significant part in ensuring that the Bill has been amended appropriately, and I am very grateful to him.

I am grateful also to the noble Baroness, Lady Chapman, for her time, energy and patience in helping me think through some of the issues in the Bill. It would give me enormous pleasure if she were to participate in our work on the code of practice. I look forward to that very much. Her participation would be invaluable.

I begin by saying how we got here. We have debated this important amendment. I accept that it is important, and I am grateful to the noble Earl for tabling it again. He and I agreed on Report that we would reflect on the issue further. I have done that too.
 
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The amendment is important for two reasons. First, the noble Earl has rightly focused on the important change to the law in the Bill. Under the current law, a parent can give or refuse consent to treatment on behalf of their child, but no one can do that for an adult who lacks capacity. Only the doctor can decide whether to give treatment to such an adult, or, in exceptional cases which we have discussed in your Lordships' House, the court. When the Bill becomes law, people can, if they choose, give someone they love and trust the power to give or refuse consent to treatment when they lack capacity to do so themselves.

The second reason why the amendment is important is that it is at the heart of the reason why the Law Commission and others have wanted this Bill for 15 years. It is a very welcome change. Most people are shocked to discover that their so-called next of kin—husband, adult son or daughter, for example—would have absolutely no rights to make decisions for them if they were incapacitated. That is why, some 15 years ago, the Law Commission proposed the idea of a lasting power of attorney for health. In all the years of consultation since then, the ability of people to appoint a loved one to give or refuse consent to life-sustaining treatment, with all the safeguards that I outlined on Report, has been fully supported.

Organisations such as Age Concern and the Alzheimer's Society strongly believe that the vulnerable, ill people whom they represent will be strongly reassured that this choice exists, as they contemplate future incapacity. Some people will decide to take the option and some will not, but they very much want that choice to be available. Both organisations oppose the noble Earl's amendment. The Alzheimer's Society has said that it,

I agree with the noble Earl that the clause and his amendment to it are important areas for debate. I respect his views. I have learnt from the discussions that we have had. I can assure him that I have thought carefully about the points that he has made in your Lordships' House and in meetings with me. However, I simply cannot agree to the amendment—partly because it is undesirable; partly because I think that it is unnecessary. I shall briefly walk your Lordships through the six reasons for my opinion.

First, it would weaken the abilities of families to speak up for their loved one. We have heard many moving stories in our debates on the Bill. That is why the Bill is so important and why I am proud to be taking it through the House on behalf of the Government. A frequent theme in those stories is the difficulty that people who lack capacity or have disabilities can experience in making their voice heard. I remember well the noble Baroness, Lady Chapman, speaking about that. She
 
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spoke of her family's love and determination to ensure that her voice was heard when doctors were unwilling to listen, preferring instead to focus on her disabilities.

If they had experienced such a situation, someone could well decide that they wanted an attorney—someone whom they love and trust—to take best-interests decisions about treatment, including life-sustaining treatment, if they lost capacity. They might decide not to rely on a doctor who might be unable, or unwilling, to take the time to hear that unique voice of the patient. I do not know what the noble Baroness would choose for herself, but I want her, and all of us, to have the option.

Another theme of the stories that we have heard is the devotion of families to their loved ones—a love that pushes through the most distressing and relentlessly difficult circumstances. I was struck by this in listening to the noble Lord, Lord Pearson, for example, and I was profoundly moved by the account of my noble friend Lord Carter of the heartbreaking choices to be made by families who lose children in adulthood. As my noble friend said, the decision was ultimately made in his case between the doctor and the family at the same time—but a doctor could, under current law, have overruled such a request from the family. An attorney with the authority to make life-sustaining treatment decisions—assuming of course that the choice is clinically appropriate, and in the person's best interests, which is a matter included in the Bill—could decide that the person should spend those last, vital few days at home in familiar surroundings with the people whom they love. Again, we cannot say whether an attorney would have been chosen in these situations. But that highlights the circumstances faced by many thousands of families every day. If someone feels that it is right for them and their loved ones to appoint an attorney while they have capacity, who will, they have agreed, be able to take decisions on life-sustaining treatment, who are we to put ourselves in their shoes and decide that we should remove that option from them?

The second reason is that it would put someone chosen as an attorney in a weaker position than a deputy appointed by the court. As noble Lords said, we listened to concerns about deputies' involvement and we concluded that we should remove the power of court-appointed deputies to refuse life-sustaining treatment. That amendment was welcomed by the noble Earl, Lord Howe, and other noble Lords at last week's Report stage. Deputies are not chosen by the person who lacks capacity, so we decided to listen to your Lordships' House and to be cautious. But this amendment is different. Not only does it remove the power of someone chosen by the person when he or she has capacity, to refuse consent to life-sustaining treatment, as we have done with deputies, but it removes the power of that loved one to give consent to life-sustaining treatment. This amendment diminishes the rights of the person who lacks capacity, in a Bill where everywhere else we have sought to enhance those rights. It cannot be correct that someone appointed by the court can have more say in life and death decisions than someone chosen by the individual.
 
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The third reason is that healthcare attorneys will be welcomed by the medical profession. We know from our many discussions with the GMC, BMA and other stakeholders, that doctors fully support giving power to the attorney, if that was what the patient decided when they had capacity, to make the full range of treatment decisions. As the noble Baroness, Lady Finlay, said, doctors can find it very difficult to decide what treatment is in a patient's best interests when they do not know much about the patient, or when a number of relatives give conflicting views. If someone has planned ahead and thought carefully about who they would like to give consent on their behalf, that gives confidence to doctors that they are treating the individual according to his or her best interests. They believe that lasting power of attorney provide a way to make better treatment decisions for people at fundamental points in their lives.

The fourth point is that the attorney has this power only if it is explicit and written in the lasting power of attorney. There can be no mistake about whether the donor of the lasting power of attorney really intended the attorney to make decisions about life-sustaining treatment; and the donor will have to discuss that aspect of the lasting power of attorney with the prospective attorney. I know that some people are concerned that people will not want to give their loved ones such an onerous duty as to make life or death decisions in what will undoubtedly be very distressing circumstances for them personally. That is a valid point, but we have to remember that they do not have to give them this power. It is not automatic. The fact that it needs to be an explicit provision in the lasting power of attorney must cause people to discuss it, and sign up only if both parties are content with what it includes and what it will involve. We shall ensure that there is guidance and information to help people be absolutely clear about that process.

Fifthly, attorneys do not make clinical decisions or decisions about medical best interests. I know that there have been concerns that it is not safe for attorneys to take over the medical decision-making role of the doctor. I can completely reassure your Lordships' House on that point. An attorney has only the same power as a patient who has capacity, so he can only give or refuse consent to treatment; he cannot take the medical decision. The doctor continues to have the professional duty of care to his patient and can be sued in negligence for breaching that duty.

In any given treatment decision, the doctor must make clinical judgments about which treatments of those available for a given condition would be accepted as proper by a responsible body of professional medical opinion. That is the so-called Bolam test. In many situations, there will be a range of medically appropriate options that are what might be called Bolam compliant. It is clear from case law that doctors have a duty to advise patients of those alternative treatments when seeking
 
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consent. If the patient lacks capacity to make a decision on the basis of the advice, the doctor must then himself decide which of the possible treatment options would be in their best interests.

Under this Bill, patients have an attorney, if they want one. Then it will be the attorney's role to decide which of the treatment options is in the patient's best interests; but it will not be the attorney's role to take the medical decision of which treatment options to offer in the first place. I shall give a very short example. A doctor may believe that providing and withholding artificial nutrition and hydration in the last few days of a person's life are both Bolam-compliant treatment decisions. He may have doubts about whether the burdens outweigh the benefits of the treatment but the attorney knows that the patient, perhaps because of a very strong religious commitment, would definitely wish to receive artificial nutrition and hydration and believes that the option to give ANH is in the patient's best interests. The attorney ensures that treatment is continued for as long as it is Bolam compliant—in other words, that clinically it is not detrimental to the individual and is in the person's best interests. That would be removed by this amendment.

Sixthly, and finally, doctors must go to court if they disagree with attorney's assessment of best interests. We know that there are concerns about what happens when a doctor does not feel that the attorney is genuinely acting in the patient's best interests. The answer is very straightforward: if the issue cannot be resolved, the doctors must seek the guidance from the Court of Protection to ensure that a decision in the best interests of the patient is reached. We know that that works, because it is exactly the same as the sharing of responsibility between clinicians and parents when parents are giving or refusing consent on behalf of their children. One example, which I gave at Report and shall not repeat, is the case of baby Charlotte Wyatt. Noble Lords have watched and listened to that story, which has very difficult and heartbreaking circumstances, in which the court made a decision.

In fact, if a doctor believes that an attorney is making a decision that is not in the person's best interests, they may be liable in negligence if they fail to go to court. Clause 6(7) enables doctors to treat the patient, without fear of liability, while they seek guidance from the court. In the case of Glass before the European Court of Human Rights in 2004, the court held that doctors were acting contrary to the ECHR in failing to going to court when they disagreed with a mother's refusal of consent to treatment on behalf of her son.

I always try to listen very carefully in the course of our debates, and I am happy to say two things that are particularly relevant to the noble Lord, Lord Patten. First, I am very happy to make a clear commitment in the code of practice that when a doctor believes that an attorney is making a decision contrary to a person's best interests, the doctor should seek a second medical opinion and discuss further with the attorney. The noble Lord, Lord Patten, said that we would not be having this debate if I had accepted the amendment in Committee. I cannot go so far as to accept the
 
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amendment but I commit the code of practice to having the measure within it. I believe that is the right and proper place for it to be. I hope that the noble Lord will welcome that.

Secondly, as regards the code of practice, if agreement cannot be reached, the doctor may apply to the Court of Protection, and life-sustaining treatment, or treatment necessary to prevent a serious deterioration in the person's condition, should be provided pending an outcome from the court. I commit that that will also be in the code of practice, which is where it should be.

As I said at the beginning, I understand why the noble Earl has brought this amendment. However, some of the concerns that underlie the amendment are unfounded. Lasting powers of attorney will make decisions better and safer than now. The amendment would strike out an important choice that some people will want to make in the context of loving and supportive family relationships. Indeed, it would diminish the role of loved ones in comparison with a deputy appointed by the court, which cannot be right. Each person's choice will be different. However, each person's choice should be their own, taken to prepare for the infinite variety of challenges and sorrows that each family faces, and to fit the way in which each family chooses to meet them. We will help and guide people through these choices, but we should not take these choices away. I hope that the noble Earl will withdraw the amendment.


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