§ 5.56 p.m.
§ Read a third time.
§ Clause 1 [Offence]:
§ Baroness Knight of Collingtreemoved Amendment No. 1:
Page 1, line 5, leave out "consultant" and insert "doctorThe noble Baroness said: My Lords, much time has been taken previously with very careful debate on all the amendments. I have no wish to detain the House longer than is absolutely essential. I merely say that this amendment came into being as it was pointed out that a patient may be looked after by a doctor rather than a consultant. That is the top and the bottom of the argument for the amendment. I beg to move.
§ Baroness Farrington of RibbletonMy Lords, this subject is extremely controversial and has raised difficult ethical questions for noble Lords of all parties. The Government continue to give careful consideration to the issues involved and welcome the public debate but we have no plans to change the current law. My noble friend Lady Andrews, who is unable to be here today due to family illness, made that clear throughout the debate on the Bill. She also commented on specific problems with its drafting. The amendment does not address the internal inconsistency in the Bill about whom it is directed at. The offence in Clause 1 applies to,
any person responsible for the care of a patient",but the duty of care in Clause 3 applies to,all those providing nursing care for a patient".The amendment obliges only the doctor in charge to record relevant decisions in the notes.
§ Baroness Knight of CollingtreeMy Lords, I merely say to the noble Baroness that the matter is perfectly clear in other amendments to the Bill which mention the need for those who are looking after the patient to be sure that food is administered. The whole purport of what we are trying to do is perfectly clear. I ask the House to accept Amendment No. 1.
§ On Question, amendment agreed to.
§ Clause 2 [Exceptions to section]:
§ Baroness Finlay of Llandaffmoved Amendment No. 2:
Page 2, line 8, leave out subsection (4) and insert—(4) For the purposes of subsection (3), a patient lacks capacity in relation to the withdrawing or withholding of sustenance if at the material time in relation to the withdrawing or withholding of 654 sustenance he is unable to make a decision for himself because of an impairment or disturbance in the functioning of the mind or brain.(5) It does not matter whether the impairment or disturbance is permanent or temporary.(6) For the purposes of subsection (4), a person is unable to make a decision to withdraw or withhold sustenance for himself if—
- (a) he is unable to understand the information relevant to the decision,
- (b) he is unable to retain the information relevant to the decision,
- (c) he is unable to use the information relevant to the decision as part of the process of making the decision, or
- (d) he is unable to communicate the decision (whether by talking, using sign language or any other means).
(7) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.(8) A person is not to be treated as unable to make a decision unless all practicable steps to help him do so have been taken without success.(9) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.(10) The information relevant to a decision includes information about the reasonably foreseeable consequences of—The noble Baroness said: My Lords, there has indeed been much discussion on the wording of the Bill, particularly relating to competence. I do not wish to detain the House further. I beg to move.
- (a) deciding one way or another, or
- (b) failing to make the decision."
§ Baroness Farrington of RibbletonMy Lords, it may help the House if I speak to Amendments Nos. 2 and 3 which both deal with the area on which I wish to comment. The Mental Incapacity Bill is currently going through pre-legislative scrutiny. This amendment seeks to introduce a statutory definition of capacity and incapacity without allowing due parliamentary scrutiny in the widest context. It also strays into new legal territory.
My comments also apply to Amendment No. 3.
§ Lord SwinfenMy Lords, surely parliamentary scrutiny of the amendment is taking place at this very moment.
§ 6 p.m.
§ Baroness Farrington of RibbletonMy Lords, I am sure that the noble Lord, with his wide knowledge of legislative matters, will agree that due parliamentary scrutiny may not necessarily be achieved within the context of one small debate when Parliament is giving the whole process of pre-legislative scrutiny to this very issue.
§ Baroness Finlay of LlandaffMy Lords, I tried to ascertain prior to the debate that, should the wording prove at variance with the decisions on the Mental Incapacity Bill, a clause would be inserted to amend the wording of this Bill. As a relative newcomer to legislation and someone without legal training per se, 655 I was hoping to receive some reassurances before the debate. The timing is certainly unfortunate, but that is the timetable for us to look at legislation in this House.
§ On Question, amendment agreed to.
§
Baroness Knight of Collingtreemoved Amendment No. 3:
After Clause 2, insert the following new clause—
§
"PRESUMPTION AGAINST LACK OF CAPACITY
( ) For the purposes of this Act, a person must be assumed to have capacity unless it is established that he lacks capacity.
( ) Any question in any proceedings, under this or any other Act, as to whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.
§ The noble Baroness said: My Lords, there is nothing reprehensible about advance guessing of what may become law in other parts of the legislative system. There are people trying to frame the draft Mental Incapacity Bill, which is not easy. I sit on the Select Committee studying that matter. I see absolutely nothing wrong in suggesting that a person must be assumed to have capacity unless it is established that he lacks capacity, simply because that is what the future Mental Incapacity Bill might say once it is through the Select Committee and follows the normal process of getting on to the House's agenda to be debated further.
§ Unless there is seriously something wrong with the amendment, I urge the House to accept it. I beg to move.
§ Lord EltonMy Lords, I do not want to detain noble Lords for more than a moment, but I wanted to observe that the noble Baroness, Lady Finlay of Llandaff, had put her finger on it. It would be perfectly possible, when the Bill that is being considered by the Joint Committee comes before the House, to include a clause amending this Bill. In the meantime, this Bill does not have a tremendous future but it provides a useful template to be considered when the time comes.
§ On Question, amendment agreed to.
§ Clause 3 [Duty of care]:
§ Baroness Finlay of Llandaffmoved Amendment No. 4:
Page 2, line 13, leave out "offer appropriate sustenance to the patient" and insert "ensure the patient has access to appropriate sustenanceThe noble Baroness said: My Lords, in speaking very briefly to the amendment, I would like to pay tribute to the contributions throughout our debates from the noble Baroness, Lady Andrews, who is 656 unfortunately not here today. Her comments, both in the Chamber and outside it, have been extremely helpful. She has taken an inordinate amount of time to provide very sound and wise advice. The amendment was drafted in the light of that advice. It is not her wording but that of the noble Baroness, Lady Knight of Collingtree, and myself.The discussions have gone on. I hope that the amendment is acceptable to the House. I beg to move.
§ Lord SwinfenMy Lords, I have one question for the noble Baroness. Does her amendment cover circumstances in which a patient needs to by physically assisted with feeding?
§ Baroness Farrington of RibbletonMy Lords, with regard to Amendment No. 4, I make it absolutely clear that the Government fully agree that any neglect of patients is totally unacceptable. They believe it is important to maintain the "best interest" principle as the basis for making decisions about the treatment of patients who lack capacity. It is unclear whether the definition of "appropriate sustenance" in the amendment will be the same as what is in the patient's best interest. It is also unclear who will decide what sustenance is appropriate.
We believe there is a problem here which we understand the amendment seeks to resolve. We are not satisfied that it resolves the issue.
§ Baroness Finlay of LlandaffMy Lords, I am grateful to the noble Baroness, Lady Farrington, for her comments. I have discussed the matter with members of my profession. Their understanding is that all situations will be covered. Nothing can ever be passed into legislation that will decrease any obligation to provide the best of care to any patient, however vulnerable, in any situation. That is completely in line with the Government's intentions throughout all they have delivered into the NHS. I commend the amendment.
§ On Question, amendment agreed to.
§ Baroness Knight of CollingtreeMy Lords, I want to reiterate the thanks that have already been given. Many thousands of people outside this House are praying that the Bill will become law. I am most grateful to the House for the consideration that has been given. I beg to move that this Bill do now pass.
§ On Question, Bill passed, and sent to the Commons.
§ House adjourned at eight minutes past six o'clock.