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Earl Howe: My Lords, I am very grateful to all noble Lords who have taken part in this debate. We have heard arguments on both sides expressed with equal force and equal conviction. I very much respect the views of those who have argued against the amendment. I would only say that my amendment would not remove the ability of a close relative or friend to be consulted on what constitutes the best interests of an incapacitated patient. Indeed, it would be the duty of a doctor who did not know the patient to consult an attorney or close relative in making his decision. But the decision on treatment would rest with the doctor.

I have listened very carefully to the noble Baroness and I very much welcome the undertakings she gave with regard to the code of practice. Those are helpful undertakings. On the other hand, I hope she will understand that this is an issue of very considerable importance regarding what appears or does not appear on the face of the Bill. I feel on balance—I hope that she will forgive me as she has been a model of courtesy and helpfulness throughout the passage of this Bill—that this is too important an issue not to be resolved by testing the opinion of the House.

4.10 p.m.

On Question, Whether the said amendment (No. 3) shall be agreed to?
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Their Lordships divided: Contents, 18; Not-Contents, 118.

Division No. 2


Alton of Liverpool, L.
Brooke of Sutton Mandeville, L.
Crathorne, L.
Elton, L.
Hooper, B.
Howe, E.
Jenkin of Roding, L.
Knight of Collingtree, B.
Liverpool, Bp.
Luke, L.
Maginnis of Drumglass, L. [Teller]
Marlesford, L.
Masham of Ilton, B.
Morris of Bolton, B. [Teller]
Patten, L.
Pendry, L.
Shrewsbury, E.
Strathclyde, L.


Addington, L.
Amos, B. (Lord President of the Council)
Ampthill, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Attlee, E.
Avebury, L.
Barker, B.
Bernstein of Craigweil, L.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Carlile of Berriew, L.
Carter, L.
Chapman, B.
Christopher, L.
Clinton-Davis, L.
Craigavon, V.
Crawley, B.
Darcy de Knayth, B.
Davies of Oldham, L. [Teller]
Desai, L.
Dholakia, L.
Drayson, L.
D'Souza, B.
Dubs, L.
Elder, L.
Elis-Thomas, L.
Erroll, E.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. (Lord Chancellor)
Falkner of Margravine, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Finlay of Llandaff, B.
Gale, B.
Garden, L.
Gibson of Market Rasen, B.
Golding, B.
Goodhart, L.
Gould of Potternewton, B.
Greaves, L.
Greengross, B.
Grocott, L. [Teller]
Hamwee, B.
Harris of Haringey, L.
Haworth, L.
Hayman, B.
Hollis of Heigham, B.
Howe of Idlicote, B.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Judd, L.
Kingsland, L.
Lea of Crondall, L.
Listowel, E.
Lockwood, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
McNally, L.
Mar and Kellie, E.
Maxton, L.
Mitchell, L.
Monson, L.
Morgan of Drefelin, B.
Neuberger, B.
Northover, B.
Oakeshott of Seagrove Bay, L.
Parekh, L.
Pearson of Rannoch, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rea, L.
Redesdale, L.
Rendell of Babergh, B.
Richard, L.
Rix, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rosser, L.
Royall of Blaisdon, B.
Russell-Johnston, L.
St. Albans, Bp.
Sawyer, L.
Scotland of Asthal, B.
Scott of Needham Market, B.
Sewel, L.
Sharp of Guildford, B.
Simon, V.
Tenby, V.
Thomas of Walliswood, B.
Thornton, B.
Tope, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Wall of New Barnet, B.
Wallace of Saltaire, L.
Walmsley, B.
Warnock, B.
Warwick of Undercliffe, B.
Wedderburn of Charlton, L.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Williamson of Horton, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.

Resolved in the negative, and amendment disagreed to accordingly.

24 Mar 2005 : Column 439
4.21 p.m.

Clause 32 [Consulting carers etc.]:

Baroness Knight of Collingtree moved Amendment No. 4:

"(c) has no connection with R"

The noble Baroness said: My Lords, I have tried hard to assess the responses that I had to an earlier amendment on the subject. There was confusion at that time, because two amendments were debated at the same time. The only real link between them was that they both referred to the conditions on which research could be carried out. However, they made two completely different points and were related to two different clauses.

Since that debate, I have tried to unravel the responses that I received, and I do not seek to raise again my original attempt to give extra protection for patients by changing "and" to "or" in Clause 31. I accept the points made against that; I listen most carefully and try to accept things when I can. However, after long consideration of the responses to my original amendment—then Amendment No. 62—I cannot accept that they covered my arguments at all. With a slight alteration, I have tabled Amendment No. 4.

I suggest that a paragraph (c) be inserted into Clause 32. The clause covers the rules for a researcher seeking to research or experiment on a subject and must be made watertight. The Bill must make it clear that the researcher cannot use a friend or relative to okay the research, which might be of great potential pecuniary or other advantage to the researcher. We are talking about big bucks. The research could be a winner, particularly if the researcher was a member of the staff of a pharmaceutical company or something of that kind. We are talking about the possibility of holidays in the Bahamas, Rolls Royce cars and diamonds for the wife. I am determined that we must be certain that those who consult and give the researcher the go-ahead must not have any link with him or her.

As I read and reread what the noble Baroness, Lady Andrews, said in response to my earlier effort, I am far from convinced, although I withdrew the amendments at the time. I really cannot see how ensuring that a person to be consulted for a go-ahead should not be friend or relative of the researcher would make research impossible. I was told that at the time. They could not ensure that the link would not be possible, because that would make research impossible. I find it difficult to see how that objection could be upheld. I cannot see, with nothing in the Bill to ensure that a researcher does not choose a consultee who is, as it were,
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on his side, that the existence of an ethics committee—as was suggested—would overcome the danger. I cannot see how my suggested insertion could wreck the Bill.

On 17 March, the noble Baroness, Lady Andrews, speaking against my amendment said that there would be guidance coming down like a beam of sunshine from a benevolent power far above us—at least coming via the Secretary of State—that would include a connection between the researcher and the research, on which there would safely be consultations. I am sorry, but I find that too vague. We have no idea what the guidance would be, what consultations would take place or with whom, nor do we know anything about the timescale before any of this could take place. I suggest to noble Lords that we are being asked to take an awful lot on trust.

The noble Baroness continued:

She meant that they would act as consultees. None of that is clear. Where will such people be found? Will they be paid? How much will they be paid? From where will the funds to pay them come? I do not know of a hospital which has spare cash to fritter around on people of that kind. Will there be a limit on the number of cases that such people could take on at any given time? What is the training that we are told they will have to undergo? Who will pay for that, how long will it last and what will it consist of?

Where are all the social workers, NHS employees or clinical staff or members of the board of the trust of the hospital? All were mentioned by the noble Baroness. Where are all the social workers who have so much spare time on their hands that they would be consulted or could give the time to be consulted? Every social worker that I know is rushed off his or her feet. All of them complain to me that they have far too many cases already. Pushing more work on them would not be acceptable. Time and again there have been cases in the newspapers where disaster has occurred because, it is said, the social worker was so busy and had so many other cases on his or her desk that they had no time to deal with that one properly. Yet, apparently, somewhere there is a list of people who will be able to spare time for this. I have never met any NHS employees or clinical staff who speak about having time hanging on their hands.

Several of your Lordships who spoke in the previous debate expressed agreement with my principle that those consulted by the researcher should not be friends or relations of the researcher. I am grateful to my noble friends Lord Patten and Lord Alton. I was also interested that the noble Lord, Lord Turnberg, clearly understood what I was trying to do and was not out of sympathy with it.

There is no doubt in my mind that it would be wrong to permit a researcher to nominate his wife, girlfriend, cousin or uncle or a close friend to help him to carry out his desired research. Yet, so far, the Government have refused to allow an amendment which would enable my proposed new subsection to be inserted into the Bill.
24 Mar 2005 : Column 441

I say with the greatest respect that no valid argument has been made against my suggestion, although the rule should certainly be made clear in the Bill. In the light of that, in all conscience, I am bound to raise the matter again. I beg to move.

4.30 p.m.

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