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Lords Chamber

Volume 670: debated on Thursday 17 March 2005

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House Of Lords

Thursday, 17 March 2005.

The House met at eleven of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Chelmsford): The CHAIRMAN OF COMMITTEES on the Woolsack.

Royal Assent

My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Act:

Appropriation Act.

Women Prisoners: Sarah Campbell Inquest Verdict

asked Her Majesty's Government:

What action they are taking in response to the verdict in the inquest on the death of Sarah Campbell.

My Lords, there have been continuous improvements made at Styal prison and young offender institution since Sarah Campbell's tragic death on 18 January 2003. The inquest into Sarah's death was heard by the coroner for Cheshire, Nicholas Rheinberg, and was concluded on 24 January this year. After the inquest, Mr Rheinberg wrote under coroners' rule 43 and the Minister for Correctional Services, Paul Goggins, will be replying.

My Lords, I thank the Minister for that reply. There is concern that an increasingly large number of women are dying from self-inflicted deaths in prison. The number has risen even faster than the number of women sent to prison. How can we be confident that the advice from coroners and from the prisons ombudsman over quite a long period on the need for special monitoring of fragile prisoners during the first few days of their sentences, and the criticisms of procedures within prisons, particularly with regard to the self-harm and suicide form, have had the desired effect? Have the Government considered whether the Dutch experience of sentencing women, or the new Scottish approach with its pilot study in Glasgow, could be studied with the possibility of following those examples in England?

My Lords, we have positive responses to many of the points that the noble Baroness has covered. Pilots—one for men and one for women—are under way on intermittent sentences, which follows learning from the Dutch practice. The old self-harm at-risk form and programme have been modified as a result of what we have learnt from the Scottish experience. A new procedure for the assessment of care in custody and teamwork for the care of at-risk prisoners is now coming into force. The noble Baroness is right to say that the deaths in prison among women are small in absolute numbers. but are two to three times the rate for men in prison. A large number of unreported resuscitations occur each year in our prisons. In 2002, 154 were carried out following self-harm incidents.

There have been specific improvements at Styal following the deaths. At that prison, there were six deaths in a 12-month period. Procedures have been changed, different training processes have been introduced and since April 2004 the prisons ombudsman conducts all death-in-custody investigations. That has been put on a statutory basis.

My Lords, the Minister will be aware that Sarah Campbell was one of many drug-dependent women in prison. Probably one-half of all women in prison are seriously drug-dependent. Does he agree with me that to offer drug treatment as an alternative would be a good option for many of them and would provide a way out of their lives of drugs, crime and imprisonment, which is a vicious circle? If so, will he confirm that there are only 17 women-only residential drug treatment places in the whole of England and Wales?

My Lords, the noble Baroness has put her finger on some key aspects. The reality is that some 70 per cent of women who enter custody need detoxification. That may not be the reason they are in custody, but it is a key factor. Purely coincidentally, today the prisons Minister, Paul Goggins, is opening the first-night centre at Styal prison. That is a key factor.

The statistics on how long people have been in custody before they self-harm, in the sense of completing the exercise or being saved from it, show that it is quite a short period. More work needs to be done on that aspect. In some ways it would be quite inappropriate in terms of central policy, but I have to say that Sarah was not in prison for a drug-related conviction, although there were drug-related aspects to it and she died of an overdose. As regards drug offences, 35 per cent of women in custody at the moment—some 1,200—are in prison as a result of drug offences.

My Lords, does the Minister agree that there is no room for complacency, and that in a high profile prison like Holloway, suicide attempts occur almost nightly?

My Lords, yes, there have been some. I am not in any way negating what happens in Holloway, but some quite extravagant claims were made that half a dozen people were being cut down every night. The evidence did not back that up. Nevertheless, work is going on in Holloway to create safe cells. Of course, such cells are automatically designed in to new prisons, but they are not in older prisons. Safe cells are being created which makes it much more difficult—although not impossible—for people to commit self-harm.

My Lords, will the Minister tell the House why only 17 places are available for women with drug problems? How many of these women have young families for which they are responsible and which might very well contribute to their self-harming?

My Lords, work is taking place. The self-inflicted death rate per thousand women is three times the rate of men, for which there have to be reasons. First, the distance that women have to travel to prison is 60 miles which, on average, is about 10 miles further than men. Virtually 70 per cent of women entering prison, as I have said, require detoxification of some kind of opiates, alcohol and other substances, which is a serious issue.

We need to provide a better process, which is why we are bringing assessment care into the action plan for the care of at-risk prisoners once they are identified. I cannot give a specific reason for why there are only 17—I may not accept that—but work is taking place to create more safe cells and, at Styal, to create a first-night unit so that people are treated differently in the first few hours when they enter prison, particularly women who may have been separated from their families and to whom prison may have come as somewhat of a surprise. On the other hand—I am not negating the fact—one has to consider why women are entering custody. The urban myth that the majority are in prison for shoplifting is simply not true.

Further Education: Over-50S Provision

11.8 a.m.

asked Her Majesty's Government:

What steps they are taking to ensure that people aged over 50 have local access to education courses.

My Lords, the Government are committed to safeguarding learning for personal fulfilment which does not necessarily lead to qualifications. That includes opportunities for the over 50s. The Learning and Skills Council's budget for such learning, delivered through local education authorities, increased from £206 million in 2003–04 to £207.4 million in 2004–05, compared with £145 million in 2000–01. In 2003–04 there were about 879,000 adults aged 50 or over in further education, an increase of about 80 per cent over 1997–98.

My Lords, I thank the Minister for that reply. Is he aware that when the Learning and Skills Bill went through this House in 2000 we received extensive assurances from the Minister that adult services would not suffer as a result of any expansion of services for 16 to 19 year-olds? That is precisely what is now happening. The success of getting 16 to 19 year-olds to participate, particularly in further education colleges, is greatly squeezing the adult budget in such colleges.

Adults can get funding only for courses that lead to an acknowledged qualification. Does the noble Lord accept that the adults who are suffering are those who do not wish necessarily to participate in a full-length qualification—perhaps because they do not have the confidence or any wish to do so—but who nevertheless need to be able to put their toe in the water of new learning? Is he also aware that by restricting the availability of what is called "leisure learning", such learning is in many senses now available only to the affluent middle classes?

My Lords, like everybody else, I hear anecdotes about who feels squeezed. I hope the House will forgive me if I go back to the raw facts. An 80 per cent increase in the number of people taking the kinds of courses which apparently are at risk seems to be a significant change and achievement. I hope that the House will accept that the whole process is a lifelong learning process. That means life-long; it is not just about adults but relates to the whole thrust of policies right the way through from childhood and involves building skills for life.

As that develops, it is bound to be the case that institutions make changes in the pattern of what they provide—some because priorities change and some because education changes. Educational changes are really the life-blood of this. Were they to stop, I would be much more concerned.

My Lords, if life-long learning is to become a reality, will the Minister accept that age should be relevant when you are looking at who is interested in a course?

Instances of prejudice have been recorded against older people taking part in courses, which has led—I do not know whether it still does, but the noble Lord might—to courses being made invalid because twice the number of younger people than older people are required to make a course valid.

My Lords, I accept that in the past there have been distortions of these processes. The House is aware of those. Indeed, my noble friend Lady Ashton agreed to set up a special working party to consider age restrictions in a number of areas. I know that the noble Baroness served on that body. It made its recommendations to Dr Kim Howells on 19 January. I am not in a position to make the announcements that I believe he will make within the next couple of days, but I think that its recommendations were extremely influential in the areas the noble Baroness has just drawn to our attention.

My Lords, I declare an interest as the first Member of Parliament to gain a degree from the Open University, which I did in 1976. I am still the only Member of Parliament to do so. I reflect on the local classes I attended. Two ladies in their 80s benefited from the opportunity. So I do not knock the set-up.

Sitting next to the Minister is his ministerial colleague my noble friend Lady Ashton, who recently played a leading role in assuring that the interests of the Open University and the London School of Economics, given the changes which were likely to damage them, would be taken into account. The Minister should be aware that the Open University tells me that after recent meetings it still remains dissatisfied about the intentions of the Government in assisting it in this special relationship. Can the Minister give any assurance both to me and the Open University that its interests ultimately will be protected?

My Lords, the Open University is dear to the hearts of a high proportion of noble Lords. I have been concerned by reading articles in the press which I have taken the liberty of disbelieving as a general principle, and then going back again to the facts.

In 2004–05 the general settlement for England had an increase of 2.7 per cent. In the case of the OU it was 3 per cent. Next year the settlement for England is 4.1 per cent and for the OU it is 4.7 per cent. The OU has made the point that there may be difficulties as the fee system changes beyond that. In a nutshell, the Higher Education Funding Council for England is carrying out a significant piece of work on what should be done for part-time students, not just at the OU but right across England. I know that the same issues are being addressed in Scotland and Wales. There are 20 institutions of higher education where more than 50 per cent of the students are part time. So it is very important to get it right for everybody, including the OU but not just the OU.

My Lords, does the Minister accept that part of the limitation on access for the over-50s might be to do with the shortage of staff? What do the Government intend to do about the fact that teachers in FE colleges, who teach the same subject to the same level as sixth-form teachers in schools, are paid 10 per cent less?

My Lords, no one will expect me to intervene in the bargaining arrangements for further education and the settlements achieved there when compared with the system of pay reviewing which occurs for teachers. I point out that £1 billion of total funding for further education has been set aside as an increase between 2002–03 and 2005–06. That should produce some leeway for all sorts of flexibility, including in salaries—but that is, as I say, a matter for the colleges.

I think that yesterday's Budget produced among the best news there could possibly be for the FE sector—£75 per week in education maintenance allowances, encouraging people to stay at school; free transport which should help the over-50s get to their further education colleges; and a building programme which will be the envy of western Europe.

General Election: International Observers

11.16 a.m.

asked Her Majesty's Government:

What arrangements will be made for the appointment of international observers during the next general election campaign.

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs
(Baroness Ashton of apholland)

My Lords, it has not been the practice of the UK Government formally to appoint observers at UK elections, However, we are aware that observers, for example, from the Organisation for Security and Co-operation in Europe, have been invited to be present to observe previous election campaigns in the past. We intend to extend a similar invitation when the next election is called.

My Lords, I thank the Minister for that fairly helpful Answer—perhaps a very helpful Answer. In considering advice that might be given to the OSCE and any other observers, will the Minister bear in mind the dramatic increases in the number of complaints and allegations about voting fraud, particularly but not only connected with postal voting, which have been made in the past few years?

Is the noble Baroness aware that only a fortnight ago a former councillor in Blackburn pleaded guilty at Preston Crown Court to such offences in 2002; and that this is only the tip of the iceberg of what is going on? Will she give advice to such observers that they might concentrate their attention on those places and in those areas where such allegations are made?

My Lords, I am not sure it is for me to give advice to observers. I think it is for the observers to determine where best they can use their skills and expertise and to look at the elections. There is no evidence of widespread postal voting fraud or that postal voting is inherently less secure. We have cases that are currently sub judice. When they are resolved, we will of course examine any issues that arise because it is important to protect the integrity of all our voting systems.

My Lords, is there not a case for welcoming observers from the emerging democracies, such as Iraq, who have a lot to learn in Britain?

My Lords, indeed. We have a good track record in the UK of observers going out to other countries. I think it is absolutely right and proper that we should invite people to observe how we proceed here.

My Lords, the Minister and the noble Lord, Lord Campbell-Savours, were both thinking of observers coming to learn from us. In the new circumstances, to which the noble Lord, Lord Greaves, draws attention, of the higher possibilities of fraud and so on from the changes, perhaps we have something to learn from other people as well.

My Lords, in my Answer, I specifically was not referring to observers coming to learn from us. Indeed, I said that observers should determine where they could best use their skills. I accept that it is important that observers come to see how we demonstrate our democracy through the ballot box, but also to support us in ensuring that at all times there is integrity in the system.

My Lords, in response to the supplementary question from the noble Lord, Lord Greaves, was not the Minister a trifle complacent about the widespread concern in the north west about electoral fraud and malpractice? It is one thing simply to talk about where convictions have been obtained, it is another completely to disregard the widely held view and concern of those involved in the political process that something has been going seriously awry for some time.

My Lords, there was nothing complacent in my answer. I said that there was no evidence of a widespread problem and that when the cases, which are now sub judice, are resolved, we will look carefully at what comes out of them to ensure that we addressed any issues that arose about the security of the system. I am very concerned that we should not give the impression without evidence that somehow we have a problem with our voting system, which has stood us in very good stead for a long time.

My Lords, further to the question of the noble Lord, Lord Campbell-Savours, will the Government consult the Commonwealth Secretariat about the possibility that it might put together an observer mission that would include some representatives from African countries?

My Lords, that is a very interesting idea. I shall certainly pass it on to my ministerial colleagues.

My Lords, without accusing the Minister of complacency, is there not a danger that, in the desire to turn around the decline in turnout in our elections in recent years, we may put at risk the integrity of our system? Are there plans properly to evaluate the new voting system? An increase based just on making voting ever easier does not increase the quality of our democracy. We need democrats to make democracy work and we need better education, especially of the young, in the civic responsibility in a society such as ours to exercise their vote.

My Lords, I agree wholeheartedly with what the noble Lord said about the need to educate people. We need to ensure that people understand the importance and value of voting—how incredibly important it is to exercise your right to vote—but, alongside that, to recognise the way in which our young people, in particular, operate and find different ways to enable them to exercise that right. The Internet and technology generally is involved. We must be clear that those go hand in hand with integrity in the system.

My Lords, every Member of your Lordships' House and every political party in this country demand the best integrity in all of our elections. Noble Lords have spoken about widely held views that there is corruption or a lack of integrity in elections. Is my noble friend aware that that itself casts doubt on the election process? Just before an election, it sounds as though people are crying foul before they have even heard the result.

My Lords, I agree with my noble friend that we must take great care in what we say. We must be sure that where allegations are made, they are investigated; and that where things are discovered that need to be put right, they are put right; but we should be very cautious of suggesting that things are badly wrong when they are clearly not.

My Lords, is the Minister aware that there is a major international dimension to this? The Russian Government are complaining about observers from the West always going to observe elections in eastern Europe and not having proper mutuality. Is it not therefore very much in our interest to ensure that we encourage observers from other countries to come here?

My Lords, I cannot comment on the Russian Government, but it is very important that we offer the opportunity to discuss with colleagues in emerging and fully fledged democracies the ways in which we exercise our democracy. That is a healthy debate and an important opportunity that elections provide and I am sure that that will be much welcomed.

Prevention Of Terrorism Act: Northern Ireland

11.24 a.m.

asked Her Majesty's Government:

What consideration they have given to the application of powers under the Prevention of Terrorism Act 2005 to those individuals suspected or identified by the Police Service of Northern Ireland or the security services of acts of terrorism within the Northern Ireland context.

My Lords, the Secretary of State for Northern Ireland will be considering carefully the application of the powers of the Prevention of Terrorism Act 2005 to Northern Ireland. However, it is an exceptional piece of legislation aimed at exceptional circumstances and we would not expect its provisions to be used routinely. Our aim is that if individuals are suspected of involvement in terrorist acts, the police will seek to gather the evidence necessary to secure a conviction in court.

My Lords, I thank the Lord President for that response, which I find encouraging, in as much as the Secretary of State is giving the matter consideration. However, in Northern Ireland, we have much more than reasonable suspicion that people, both loyalist and republican, are involved with terrorist gangs that carry out all forms of criminality, including murder. The Justice Minister in the Irish Republic has even named two Members of the other place as serving members of the IRA army council. Do Her Majesty's Government have any intention of using control orders against those who, according to the police and security forces. pose a terrorist threat in Northern Ireland? In the light of last week's legislation, if not, why not?

My Lords, I think I made the Government's position absolutely clear in my Answer. Control orders will be used sparingly and only where necessary in the interests of public safety. We have made it absolutely clear that where individuals are suspected of involvement in terrorist acts the police will seek to gather the evidence necessary to secure a conviction in court. That remains the Government's preferred method. I cannot, of course, speculate on possible applications in individual cases but, as I said, the Secretary of State for Northern Ireland will consider the matter very carefully.

My Lords, will the Lord President take this opportunity to dispel a growing feeling that the pursuit of alleged terrorists in Northern Ireland is less forceful than it is in England and Wales? Furthermore, will she speculate in an informed way about when we may expect some arrests following the McCartney murder and the Northern Bank robbery?

My Lords, I know that the noble Lord, Lord Smith of Clifton, does not really expect me to speculate on those matters. The Government are absolutely clear that the McCartney family deserve justice. We will continue to call on all those with information to come forward to assist the investigation. Justice means proper investigation and proper judicial process.

I have already answered questions about the Northern Bank raid investigation across the Dispatch Box. The noble Lord will be aware that the Police Service of Northern Ireland is undertaking a major investigation into the Northern Bank robbery, including the kidnapping and hostage-taking. More than 45 detectives are involved; more than 200 interviews are planned or have taken place; and 600 actions have already been logged.

My Lords, I welcome my noble friend's comments and her resistance to the questions from the other side of the House. Will she confirm that it is much better to give the police in Northern Ireland time to conduct their investigations in order to bring people before the courts if at all possible? The worst thing that we can do—justwhen public opinion is moving more strongly than ever before against terrorists and criminals in Northern Ireland— is to give the people who perpetrated those crimes a sense of being victims. That would mean that we would lose the political argument, which at present is going very much on the side of the Government and the ordinary people there.

My Lords, I entirely agree with my noble friend Lord Dubs that the police need to be given time to conduct investigations. They also need to be given the resources, and we have been assured that they are available. I see the noble Baroness, Lady Harris, nodding, because I know that she frequently asks that question. I can also tell my noble friend that the strong line being taken by the family in the McCartney case in seeking to secure justice is being supported by the people of Northern Ireland, who are themselves putting pressure on the criminals in that regard.

My Lords, will the Minister clarify the position? Her noble friend has congratulated her on resisting the suggestion, but I thought that I heard her say that the Secretary of State was considering those matters. Is it not the case that, whether in Great Britain or Northern Ireland, obviously the Government would prefer a proper prosecution to take place? But is she saying that in cases where it is not possible, depending on the gravity of the situation, the Secretary of State is considering the possible use of such orders?

My Lords, I can only repeat what I said in my original Answer: the Secretary of State for Northern Ireland will consider carefully the application of the powers. The Act has only just been passed. but the Government's preferred method, which we made absolutely clear when the legislation was going through the House, is for the police to gather the evidence necessary to secure a conviction in court. That remains the position.

My Lords, are the Government reluctant to use control orders in Northern Ireland based on reasonable suspicion because they fear the stirring up in the Northern Irish communities of the sort of hornets' nest that we were talking about last week?

My Lords, I feel a bit like a broken record, repeating the Government's position. Our position when the legislation was going through this House, and now, is that we prefer to secure a conviction in court. We have always made it absolutely clear that this legislation will be used sparingly. I cannot comment on what might be hypothetical situations.

Budget (Northern Ireland) Order 2005

Public Processions (Amendment) (Northern Ireland) Order 2005

Electoral Law Act (Northern Ireland) 1962 (Amendment No. 2) Order 2005

Electoral Law Act (Northern Ireland) 1962 (Amendment No. 3) Order 2005

My Lords, I beg to move the four Motions standing in my name on the Order Paper.

Moved, That the draft orders laid before the House on 9 February, 22 February, 24 February and 7 March be approved [11 th Report from the Joint Committee].(Baroness Amos.)

On Question, Motion agreed to.

Child Benefit Bill

The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport
(Lord McIntosh of Haringey)

My Lords, I understand that no amendments have been set down for Committee and that no noble Lord has indicated a desire to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.

Moved, That the order of commitment be discharged.—(Lord McIntosh of Haringey.)

On Question, Motion agreed to.

Mental Capacity Bill

11.32 a.m.

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(Baroness Ashton of Upholland.)

On Question, Motion agreed to.

Clause 4 [Best interests]:

moved Amendment No. 8:

Page 3, line 17, after "feelings", insert "(and, in particular, any relevant written statement made by him when he had capacity)"

The noble Baroness said: My Lords, the purpose of this amendment is to clarify that if someone with capacity has written down their wishes and feelings in respect of a matter, including positive preferences, those must be explicitly taken into account in a best-interests determination.

Patients do not have a right to demand and receive treatment, so advance requests cannot have the same legal effect as advance decisions to refuse treatment. However, the amendment makes clear that preferences about any aspect of a person's life, including treatment, should be respected and taken into account. We believe that that has always been implicit in Clause 4, which says that the decision-maker,
"must consider, so far as is reasonably ascertainable—
(a) the person's past and present wishes and feelings".
I agreed to make that clear, in response to an amendment about advance statements from my noble friend Lord Carter in Committee.

I want to clarify how that relates to medical decisions because in a medical situation it is already best practice for any doctor who departs from a patient's clearly expressed wish to explain his reasons for doing so, and he would be expected to keep records to enable that. That means that, where someone has sought to make an advance refusal of treatment that does not qualify under Clauses 24 and 25, but there is still a reasonable belief that that is an expression of the person's wishes, it will be taken into account, too, in assessing best interests. The absence of a valid and applicable advance decision does not automatically mean that treatment must be provided. As I have indicated, the decision must be made according to the overall best interests of the person. The more specific and well thought-out the statement, the more likely that it will be persuasive in determining best interests.

The amendment goes further than the stakeholders' requests to us in that it covers all best-interests decisions, not just those involving treatment. For example, it covers financial preferences or where somebody might wish to go on holiday. I hope that that meets the needs that I said I would address in Committee. I beg to move.

On Question, amendment agreed to.

moved Amendment No. 9:

Page 3, line 39, at end insert—
"( ) Nothing in this Act shall permit the withdrawing or withholding from any person of nutrition or hydration, howsoever provided, save where the provision thereof would itself cause harm or burden to the person greater than if the nutrition or hydration were not provided."

The noble Baroness said: My Lords, before I talk about the amendments tabled in my name, I wish to thank the noble Baronesses, Lady Ashton and Lady Andrews, for the government amendments that were put forward and accepted by this House on Tuesday evening and this morning. Those anti-discrimination amendments will help to protect those who are most at risk from misrepresentation in this Bill. Those amendments, plus others tabled today, particularly those relating to Clauses 34 to 40, where patients will have an independent advocate to speak for them, are most welcome.

That brings me to Amendments Nos. 9, 9A and 113, to which the noble Lord, Lord Alton of Liverpool, and the noble Baronesses, Lady Masham of Ilton and Lady Knight of Collingtree, have kindly put their names. Over the many days on which we have discussed and debated the Bill I have watched it change from a document that instilled fear in me to one that, although not perfect, is much safer and much more protective of the most vulnerable in society.

There is still one area of real concern to me; it is covered by these amendments. I cannot perceive a society that would, or could, accept the withdrawal of nutrition and hydration unless to give it would cause harm. To talk of intention and purpose seems somewhat unreal when we are talking of that which sustains life. For us to spend hours discussing the most appropriate words seems irrelevant when we all know the consequences of withdrawing basic nutrition and hydration.

I acknowledge and accept that there are situations where treatment is futile. I also accept that as the dying process progresses, the body no longer requires sustenance. Those are facts. However, the withdrawal of nutrition and hydration can increase the suffering and distress of the patient until the deprivation of hydration takes effect. We must remember that this Bill does not just cover people who are unconscious and unaware. Clause 3(1)(d) clearly states that,
"a person is unable to make a decision for himself if he is unable—
(d) to communicate his decision".
Lack of capacity can be because of inability to communicate. If these amendments fail, fully conscious, fully aware people are at risk of having sustenance removed.

From a personal point of view, I cannot think of a worse nightmare than feeling hungry or thirsty, not being able to communicate and having full knowledge that the only respite would be as I approached death. I am certain that that scenario is not the Government's intention. But if Clauses 4 and 60 are not amended it will happen. There have been documented cases where people have had nutrition and hydration removed but continued to show signs of wanting food and water because, for lack of capacity, there was no opportunity to voice new wishes.

I do not want to challenge the Bland judgment; I have started each amendment "Nothing in this Act" to avoid conflict with it. I also appreciate the fact that this will affect only a small number of people. But if you or somebody you love are one of that number, you would not find that any consolation.

I ask noble Lords to support the amendments because, morally, it is wrong to increase the suffering of people in the latter stages of life, when they are at their most vulnerable and should be offered the highest levels of dignity, respect and care. I beg to move.

My Lords, I am very happy to support this amendment put down by the noble Baroness, for whom all of us, already, have a great admiration. I confess that I am feeling a sense of déjà vu as the debates on this Bill continue. Every time we put down an amendment to remedy what we believe is a dangerous implication in the Bill—that it creates a serious risk in some of its aspects—we are told soothingly and convincingly "not to worry—that protection is in the Bill already".

Whether we are trying to ensure that suicide by advance decision does not happen, or we are trying to help those with conscientious objections by making it certain in law that their rights would be protected, or whatever protective measures we seek to make, the answer is the same. We are told, "There is no need for this amendment. The Bill will not allow any diminution of patients' rights or the rights of those who care for them". Yet we can never be certain that that is correct because it is never on the face of the Bill.

I have an unhappy feeling that the same anodyne dose will be offered to this amendment. As I have said, I have no wish to endanger the Bill by speaking at length. But if we do not speak now, when can we? Those of us who see and feel the dangers ahead have a clear duty to seek to shield patients from the pain that we have already seen many suffer.

When I introduced my Patient's Protection Bill, I did so because I had such a wealth of shocking evidence that sick people in NHS hospitals were being deliberately denied food and liquids and were dying because of it. Sometimes the food and liquids were deliberately put out of the patient's reach. I am not making those stories up: there is ample evidence for them.

The Government blocked the Bill but a Government Minister, the noble Lord, Lord Filkin, who was responsible for the Bill, assured me when I sat on the Select Committee which studied it, that the matter would be addressed in this Bill. Therefore, in earlier debates, I have not unnaturally sought to be sure that it provides the safeguards which really are so desperately needed. But, yet again, the soothing syrup which so effectively clogs the wheels of action is offered in large spoons.

We are told, "There is no need for this amendment. Such treatments as withholding food and liquids, putting them out of the patient's reach or failing to make the patient comfortable by moistening his dry mouth, are already covered by good medical practice. No hospital would act in this way".

If all that is true, why, under these present rulings, which have been referred to so specifically and so frequently, have we so much evidence from patients, their relatives, MPs and public figures who have seen it for themselves, as well evidence from television programmes, newspaper reports and even doctors and nurses? Why does it go on if it is already illegal? That seems a perfectly fair question. When Nelson said, "I see no ships", his motive was brave and noble. But when the BMA pretends that those things do not happen, it fear that I cannot ascribe to it—although I admire that profession greatly—the same noble intentions.

I am getting quite used to being told that amendments are unnecessary. The only reason that this one is in that category is either a belief that all evidence is illusory or that we can afford to turn our hacks and close our eyes on people who are suffering. Years ago I would have accepted without question that doctors would always do everything possible to help their patients, to keep them alive if possible, and to keep them comfortable. I still admire doctors, but that old belief has gone. I do not believe it any more: how can I, with all the evidence against it?

I understand that newly trained doctors do not now affirm the Hippocratic oath, which put the patient's care as a priority. They no longer sign automatically that the duties of a doctor mean also taking on the content of that oath. Whatever unwritten laws there may be in the medical profession's rule book, in the name of patients we must face the facts of evidence and try to get this amendment in the Bill.

11.45 a.m.

Julia Quenzler, a famous court artist at the BBC, witnessed her mother being sentenced to an agonising death by thirst as a result of doctors depriving her of water. She said that her mother would give a firm nod when asked whether she wanted a drink of water, but the water never came. She states:
"My mother was not seriously ill when she walked into hospital. In fact she was a relatively healthy woman with a relatively common problem. Six days later she was on her deathbed".
She went on to state that she did not know what more she could have done, apart from abseiling off the hospital roof, to bring attention to her mother's needs. She said that she,
"literally begged [the doctors] with my hands pressed in supplication. I don't know why these doctors did what they did. In the absence of any plausible explanation, I can only conclude that they considered my mother an expendable nuisance".

The examples I give are all cases that have come to my notice since my Patient's Protection Bill failed to become law. A nurse, Pat Tyler, said in respect of her mother:
"She must have died thirsty … she must have been dreaming of cups of tea, of rivers of water. They should not have taken the water away from her".
But they did.

Nurses at Kingsway Hospital in Derby have claimed also that their patients were dying of thirst and that they were not given water or drips. I have added all those cases to my large pile on the subject since the last time we debated this issue.

It is undeniable that whatever rules may govern medical procedure, they are not sufficient to stop the cruel things which are going on. Do we want to stop them? I hope that we do. Do we accept that it is wrong? I hope that we do. If so, the remedy is now in our hands to take action. Agreeing the amendment would make it clearly law that patients must not be treated in the way in which they have been treated in the past, and the amendment in the name of the noble Baroness, Lady Chapman, is the answer.

Of course, we recognise that in some cases providing food and liquid might harm the patient. Peers will observe that the amendment does not disallow the stopping of nutrition where that danger exists. The noble Baroness has been very careful about that. We cannot fail to agree the amendment if we want patients to receive the very first necessity, which is usually for comfort and well-being, but always for life.

Finally, I must express the profound hope that the other regular formula against amendments—that is, that they will wreck the Bill—will not be made in this regard. This amendment will not wreck the Bill. It will save the lives of many patients.

My Lords, I support the amendment standing in the name of my noble friend. I also pay tribute to the noble Baroness, Lady Knight, who has just resumed her seat. She previously put before your Lordships' House her Patient's Protection Bill and has assiduously pursued this issue. believing, as she does, that we need to give every possible protection in the Bill to vulnerable people. I know that all parts of this House are not so far apart in wanting to achieve that objective.

However, as my noble friend and the noble Baroness, Lady Knight, have said, the issue is how we go about it. In supporting the amendment, I simply return to a subject that I and others raised during the passage of the Bill that the noble Baroness put forward. and an issue that I also raised at Second Reading and in Committee.

The amendment flows from our discussion last Tuesday. If the loophole that was identified by Professor John Finnis, Professor of Law at Oxford University, and Archbishop Peter Smith of Cardiff had been closed, I doubt that the movers of these amendments would feel the need to pursue the argument further.

During our earlier debates, considerable doubt arose about whether we should believe lawyers such as Professor Finnis or the noble Lords, Lord Carlile of Berriew and Lord Brennan, also distinguished lawyers. As the noble Baroness has just asked, should we trust the many assurances we have been given or should we look for provisions in the Bill? I have always erred on the side of the latter approach, which is why I welcome Clause 58 as a first step in addressing the issues identified today in these amendments by my noble friend.

Curiously, during the 36 hours that have elapsed since we last considered the Bill on Report, an issue has arisen that should inform today's debate about the confidence we place in assurances, and on the importance of writing things in the Bill. In 1990 in another place, I challenged a proposal to permit eugenic abortions up to birth on unborn babies with a disability. I said that it was a discriminatory provision, which is the thrust of the argument put forward today by my noble friend Lady Chapman and which lies at the heart of these amendments. I said that it was also a discriminatory provision that would lead to perfection tests governing our right to life.

In 1990 I circulated a legal opinion drawn up for me by two eminent Oxford lawyers, Professor John Finnis—much cited in our debates two days ago—and Professor John Keown, now professor of law at Cambridge University. Professor Finnis said that if the law was changed in the way proposed in 1990, it would lead to abortions on the grounds of conditions such as cleft palate or hare lip. At the time he was ridiculed and castigated. One Member of Parliament, Mr Frank Doran, accused him of "pure scaremongering", while the present Solicitor-General, Harriet Harman, said that both Professor Keown and Professor Finnis should be reported to the Bar Council and to the Law Society.

No doubt Ms Harman will have followed carefully yesterday's decision by the Crown Prosecution Service to take no action in a case raised by a brave young Anglican curate from the Chester diocese, Joanna Jepson. She challenged the abortion of a baby, under the terms of the 1990 law, who had a disability. The baby's life was ended at seven months' gestation. The grounds for the abortion, as correctly anticipated by Professor Finnis in 1990, were that the baby had a cleft palate. The Crown Prosecution Service has now upheld the decision to end the life of a baby of seven months' gestation merely because of a very minor disability.

Was Professor Finnis scaremongering, or did the professor of law at Oxford University have a stronger grasp of the law than the present Solicitor-General, who wanted him brought before the Bar Council and the Law Society for accurately analysing the ramifications of a law that had been laid before Parliament and which was supported by many leading political figures with a great knowledge of the law, even such as the present Prime Minister himself?

In the context of the amendment before us, this case reveals two things. First, we now routinely practise eugenics in Britain and, as my noble friend Lady Chapman has just reminded us, the provisions in this Bill could further put the lives of disabled people at risk. Secondly, it puts into sharp relief the things that have been said by Professor Finnis about the need to close a loophole in Clause 58. One noble Baroness said to me yesterday that she had not appreciated that it was Professor Finnis who worked with the Government in drafting Clause 58, and that if anyone should understand its shortcomings, it would be he.

For the sake of the record, and in advance of the extensive debates on Lords amendments that may take place in another place, it is important to put on the record the united view of Professor Finnis and the Archbishop of Cardiff, Peter Smith. However, I see that the noble Lord, Lord Carter, wishes to speak. I shall return to that in a moment, after happily giving way to the noble Lord.

My Lords, I rise just to remind the noble Lord that the Joint Committee that I chaired on the draft Bill recommended that there should be a clause in the Bill along the lines of Clause 58 which, strictly speaking in law, is not necessary. It is a declaratory clause and was brought forward, as I say. as a result of the recommendation made by the Joint Committee.

My Lords, I am grateful to the noble Lord. Lord Carter, for reminding us of that. He will also confirm that throughout the consideration period Professor Finnis had extensive discussions with the department and ensured that this provision was placed in the Bill. But it is also important to recognise his view that this provision does not go quite far enough.

I recognise also that the gap between us is one which still could be closed between now and Third Reading. That is why I am offering these thoughts in a constructive way. I want to see a resolution of this issue and I want the Bill, which contains much that is good, to proceed to the statute book.

I remind noble Lords of what the Archbishop of Cardiff said in a letter to the Labour Member of Parliament, Mr Jim Dobbin, earlier this month. The Archbishop wrote:
"Professor Finnis and I believe that a further amendment is still needed to ensure that the Bill confers no authority on expressly suicidal advance decisions. We therefore strongly support efforts of Members of both Houses who are seeking to introduce an amendment to exclude decisions from being given validity or authority by a Bill where they have a purpose of bringing about death or are motivated by a desire of doing so. I very much hope the government will reconsider its opposition to inserting such an amendment. which we firmly believe can be made without affecting the jurisdiction of the courts affirmed in the Bland case".
That point was just made once again by my noble friend Lady Chapman in introducing these amendments.

It is well known that the main promoter of advance decisions is the Voluntary Euthanasia Society. The society has been ominously and curiously quiet about the Bill, knowing how it can be exploited. I know that the Government might now regret it, but it is a fact that the VES advised the Government on the preparation of an earlier consultation document. Making Decisions, which paved the way for this Bill. Is it any wonder, in the light of that and in the light of previous experience, that we now have our suspicions about where the Bill might lead?

My noble friend's amendment and her speech remind us that a great many people outside this House who are following our proceedings fear being inappropriately denied nutrition and hydration, the very basics of life itself. And in the light of the eugenic abortion at seven months' gestation of a baby with a cleft palate, please let no one accuse my noble friend, myself, or Professor Finnis of "pure scaremongering", or threaten us with the Bar Council or some other professional body. This House may dismiss their fears as ill founded, but I should like to stress a point I have made before in your Lordships' House. We are not legislating for some Utopia where decision-makers will always have the best interests of incapacitated persons at heart.

During the 1990 debate, the noble and learned Lord, Lord Brightman, said that, "it would be unthinkable" for a doctor who was carrying out a termination to preserve the mother's life or health to gratuitously terminate the life of the child:
"A doctor does not need an Act of Parliament to teach him that elementary duty".—[Official Report, 18/10/90; col. 1065.]
But sadly, as the noble Baroness, Lady Knight, has just said, what was once unthinkable can rapidly become normative if we do not put the necessary safeguards in our legislation. What was once a heinous crime can rapidly become standard medical procedure. It is not enough to leave it to good intentions and, yes, it is sometimes the role of Parliament to legislate not just to spell out duties, but also to protect the weak and the vulnerable.

Some individuals, perhaps not many, will seek to use this legislation to end prematurely the lives of those who lack mental capacity. Denial of nutrition and hydration is one of the ways in which this could be done.

Many people's fears were compounded when we learnt that the Secretary of State for Health has argued in his submission to the Court of Appeal in the Burke case that resource considerations need to be brought to bear on the decision on whether artificial nutrition and hydration should be provided. My noble friend Lord Maginnis of Drumglass has been pursuing this point in Questions put to the Minister, the noble Baroness, Lady Ashton of Upholland.

This amendment does not oblige medical professionals to do everything to keep alive patients who are clearly dying and for whom the provision of nutrition and hydration would have no benefit or would be harmful, futile or burdensome. On Tuesday, I listened with great interest to the moving speech of the noble Lord, Lord Carter. He told us that,
"we are all entitled to follow the dictates of our conscience, but not perhaps by attempting to impose them on others through legislation".—[Official Report, 15/3/05; col. 1289.]
Neither this amendment nor the amendments debated in your Lordships' House on Tuesday are an attempt to impose anything on anyone. Rather, they represent an attempt to improve the legislation. They do not necessarily represent perfection, and we are all open to further dialogue and discussion with the Government between now and Third Reading to get this right. These amendments represent an attempt to ensure that the Bill cannot be used as a vehicle for intentional killing. I believe that that objective is shared by everyone in the House who has contributed to these debates.

On Tuesday the Minister helpfully answered the seven questions posed by the noble Lord, Lord Carlile. I shall end with just two further questions. First, will the Minister tell us quite explicitly today, in answer to a question raised with her last Tuesday by the right reverend Prelate the Bishop of Oxford and myself, whether Clause 58 covers advance directives? Secondly, do the Government support the legalisation of euthanasia or physician-assisted suicide? They are two straightforward questions that need to be recorded in our debates. They are different questions from those that have been asked so far. We have received the Government's assurance that the Bill does not legalise euthanasia or physician-assisted suicide, but suspicions will linger for so long as the Government fail to commit themselves to opposing any attempts in Parliament to legalise either euthanasia or assisted suicide.

Many of us would like to see the Bill enacted, but its fate is now in the hands of the Government. Unless the fears raised by my noble friend Lady Chapman are properly addressed between now and Third Reading, the Government will—I know and they know—be in deep trouble with their own supporters as well as the Opposition Members in another place. I hope that, between now and Third Reading, they will seize the initiative and re-engage with Professor Finnis and others to seek a mature political resolution of these complex issues. I support the amendment.


My Lords, I shall intervene briefly following the excellent case made by my noble friend Lady Knight and others. I have just one question for the Minister. If the Bill already covers these points, and these things cannot possibly happen, is there any reason why a relative or close friend, visiting a patient who is unable to communicate in any way, can be prevented from demanding, on behalf of their close relative, that he should be given nutrition and hydration?

My Lords, I have put my name to the amendments. It was mistakenly omitted from Amendment No. 9A. Many people feel that the Bill is still not clear enough in safeguarding at-risk and vulnerable people as regards food and fluid.

What Ministers and Members of both Houses think should happen may not be what is happening in some busy hospitals and nursing homes. Some disturbing cases have just arisen in a nursing home in Yorkshire. The Minister will no doubt say that the amendments are not necessary, but many people feel that they will help to clarify what has become, and what may become, a grey muddle on the ground.

Doctor Anthony Cole, a consultant paediatrician and magistrate whom I know, has said:
"We hold most strongly that death by dehydration is unacceptable, inhumane and leads to a slow and painful death".
I hope that the Minister will accept the amendments, thereby helping many people who are concerned about what is happening and what may happen in the future.

My Lords, I oppose the amendments, but I recognise the cases that the noble Baroness, Lady Knight, has mentioned. Cases of bad care come across my desk every day. Amid the many hundreds of thousands of treatments that are given every year, such cases undoubtedly exist. I would be the first to say that we needed better professional practice than to allow people to remain in that sort of distress.

I shall address what I believe is a false premise about artificial nutrition and hydration. Before doing so, I turn to the priority that we have all given to the autonomy of the individual in making decisions about their future treatment and care in advance directives.

We all strongly support the idea in the Bill that you should be able to make a decision when you have capacity about whether you wish to accept specific treatments when you lack it. Artificial nutrition and hydration are invasive medical treatments that fall clearly into the categories of treatment that would be included if an individual said that they wished to refuse life-saving interventions. They involve the insertion of a nasogastric tube, which is not pleasant at all, or the intravenous infusions of artificial nutriments and chemicals. The paraphernalia restrict movement, and the process requires extensive monitoring. It is uncomfortable and very often distressing.

Only yesterday, I saw new guidance from the National Patient Safety Agency about the serious problems involved in maintaining nasogastric tubes. It is not like eating and drinking. The person who is fed through a nasogastric tube does not have a sensation that he has had a meal. It is not a good meal where you sit down with your friends and have a glass of wine and what I suppose these days would be ciabatta sandwich, panini or whatever. It is not like that at all. You are receiving artificial nutriments which often give you very unpleasant diarrhoea and so on.

How often have I witnessed uncomprehending, distressed older people tugging out the tubes and drips in an attempt to be free of the discomfort? On general medical wards, tubes are all too often left in, when someone would really be better not having them.

The whole procedure is burdensome. While the burdens are generally acceptable to people during a temporary acute illness or during a period after an operation from which one is hoping to recover, they are rarely justified as a long-term form of care when someone is approaching the end of life during a fatal illness. I recognise that the noble Lord, Lord Alton, addressed that issue.

If the individual is at home, the question never arises. If they are being cared for by family, tubes and drips are not put in. The possibility arises only when somebody goes into hospital and receives unnecessary interventions. Having written a letter to express that, in the event of my becoming incapacitated, I do not wish to have life-saving treatments, I have assumed that my statement includes those burdensome treatments. Supporting the amendments would mean that my wishes and most other advance directives could be disregarded and overturned.

My Lords, I have nearly finished. Comfort is all. The many patients with dementia for whom I have cared often have two serious physical problems at the very end of life. The first is their skin care and the comfortable disposition of their body; and the second is oral care and the hydration of the mouth. Above all, those require good, basic nursing care. It is possible to maintain somebody's hydration without all the artificial, intravenous paraphernalia. When we are near to death, we all crave the right touch more than the right food. It is the individual who has the right to decide in advance, and we should do nothing to undermine that right, as the amendments would.

My Lords. the noble Baroness has spoken only about artificially conveyed food and liquid, but the amendment does not refer merely to that. It refers to simple feeding and the fact that, so often. food is too far away, yet none of that has been addressed by the noble Baroness. Some of us have a great deal of evidence of patients not being fed ordinarily, let alone with tubes. Would the noble Baroness speak for just one second about that?

My Lords, I agree with the noble Baroness completely, but basic care is in the Bill. The way we must address the best interests of the patients is by proving good clinical practice. I believe that there are safeguards in the Bill. Clause 58, for example, would satisfactorily address the concerns of the noble Baroness. We must tackle the problems that the noble Baroness is raising very vigorously, but this Bill is not the place to do it in this way.

My Lords, I must make absolutely clear, despite the great sincerity and force with which the proposers of the amendment have put forward their case, my reasons for deciding, after very careful thought and consideration, that I cannot support it.

I say to the noble Baroness, Lady Knight, that the Hippocratic oath is no longer sworn by doctors and medical students, and the reason is quite clear: it is totally out of date. It includes all kinds of curious suggestions, such as, "I will not cut persons labouring under the stone", and a whole lot of other things that are totally inappropriate to modern medical practice. But all medical students are taught that their primary concern as doctors is to have a duty of care to their patients, which involves the responsibility, particularly with terrninal illness, to offer what many people refer to as "tender loving care", including everything that falls within that category.

As I said on Tuesday, the Select Committee on Medical Ethics, which I chaired, made one or two things absolutely clear and explicit. First, the competent patient, after full explanation of all the potential consequences, has an absolute right to refuse medical treatment even if that will ultimately end in death. That is not suicide or an intending of death but a refusal to accept treatment which the individual accepts as having no benefit or adding nothing to their individual well being. If for that reason a competent patient refuses artificial nutrition and hydration, so be it—that is their own responsibility.

The problem is more difficult with the incompetent patient. I must confess that I would not wish to see the withdrawal of food and fluid from an incompetent patient without exceptional reasons, which are very important. I can say to the noble Baroness, Lady Knight, that if a doctor can be shown not to have fulfilled that duty of care by giving appropriate clinical care to a patient, particularly towards the end of life, that doctor could be reported to the General Medical Council, which would have the absolute right to consider whether under its own guidance the doctor had demonstrated such neglect or disregard of personal responsibilities to the patient as to raise an issue of serious professional misconduct. That is in the GMC's rules; it is something that I remember drafting many years ago.

The defect in the amendment is that it would overturn the decision of the Law Lords in the Appellate Committee in the case of Tony Bland. The reason for that is quite simple: Tony Bland and many other patients like him were in a permanent vegetative state, which meant that the cerebral cortex was dead. He and other patients in a similar situation had no awareness of the position which they were in or of their surroundings, and no reflex responsibility indicating that they were in any sense conscious. Tony Bland and other patients in a permanent vegetative state were still able to breathe and their hearts were still beating, but they were unable to swallow, and they were fed by a feeding tube and given food and fluid in that way.

In a patient who is totally unaware of his or her surroundings and who has no function in the cerebral cortex, one cannot then claim that to give feeding by a tube would do harm or impose a burden on that individual. The Law Lords' decision was that the maintenance of artificial hydration and feeding in the case of Tony Bland was not in his best interests. That, I think, is the guidance that we must use; and that is why I am firmly of the opinion that to pass this amendment would have the effect of overturning the decision on Tony Bland and would raise an enormous number of very difficult and anxious cases.

I shall say one thing to my noble friend Lord Alton, whose absolute sincerity in contributing to these debates is unassailable, I am sure. That is, that I have signed an advance directive that simply says that if I become incompetent and am in a terminal illness, I would not wish to have life-sustaining treatment of a particular kind. That falls in line with the treatment-limiting decisions which we hallowed in the House of Lords report from the Select Committee on Medical Ethics, which was accepted by this House. For the advance directive to instruct doctors to withhold certain treatment in an incompetent patient in a terminal illness is not assisted suicide; it is a treatment-limiting decision which is entirely valid under the present law. To impose this amendment would make that extremely difficult. I am afraid that I must tell my noble friend Lord Alton that I find no loophole in the Bill and that any further attempt to delay its passage would be very harmful to the many excellent provisions that exist within it.

12.15 p.m.

My Lords, I wish to address myself to the phrase in Amendment No. 9A relating to the withdrawal of life-sustaining treatment. A lot of what I was going to say has just been said by the noble Lord, Lord Walton of Detchant, and I need not say any more about the Bland judgment except to quote from it a crucial sentence by Lord Keith of Kinkel. He referred to the state of Tony Bland's brain and so on, and went on to say:

"The undisputed consensus of eminent medical opinion is that there is no prospect whatever that Anthony Bland will ever make any recovery from his present condition, but that there is every likelihood that he will maintain his present state of existence for many years to come, provided that the medical care which he is now receiving is continued".
If the medical care could keep him alive for many years to come, it clearly was not harmful or burdensome, and this amendment would mean that the Bland judgment would be overturned.

My Lords, on that point, I am grateful to the noble Lord, Lord Carter, but does he recall that I raised at an earlier stage of our proceedings the case of Andrew Devine, who also entered a persistent vegetative state, on the same day as Tony Bland. He was a constituent of mine then, when I represented a constituency in Liverpool. The noble Lord will recall that it was at the Hillsborough Liverpool game that these terrible events occurred. Five years later Andrew Devine recovered; he is still alive today and has been fed subsequently. Therefore, the predictive nature of the decisions that have been made cannot always be accurate. Also, it is not the intention of the movers of this amendment to overturn that.

My Lords, that intervention is extremely helpful, because it goes to the heart of the debate. I do not believe that the noble Lord, Lord Alton, believes that those who care for people who are in a persistent vegetative state should have the power to seek the court's approval for the ending of artificial nutrition and hydration so that their life can come to an end. That is a clear division of opinion, and I entirely respect the noble Lord's sincerity. There are those who believe, entirely sincerely, that the beginning and end of life belongs to the Creator and not to us—and I understand those who feel like that. But I do not believe that they should attempt to impose that opinion on the rest of society through legislation.

To move away from the case of Anthony Bland, there are cases of patients in intensive care who are on life support. If they are on life support, they are completely sedated. The treatment that they receive is not harmful or burdensome. Indeed, the only consolation for the relatives in those situations is that the patient feels nothing. To a use a non-medical term, they are completely paralysed. Such treatment is not harmful or burdensome. There are cases in which the attempt at resuscitation can be successful in preserving life but can lead to irreparable brain damage. Those who care for such people—the relatives and doctors—face an agonising decision regarding the withdrawal of life-sustaining treatment.

Amendment No. 9A, which mentions life-sustaining treatment, would prevent a decision being taken to withhold such treatment. I understand and respect those who as a matter of conscience would not wish to make such a decision, but I do not agree that such a right should be removed from those who might wish to exercise it.

My Lords, I promise not to bore the House by repeating the summary that I attempted to make on Tuesday of the legal and ethical principles reflected in the Bland decision, but I would like briefly to deal with one or two matters that have arisen today on the amendments. I should say at the outset that I am perfectly sure that it is not the intention of either the noble Lord, Lord Alton of Liverpool, or the noble Baroness, Lady Knight, to wreck this important Bill, but I have no doubt that the effect of these amendments would be to torpedo the Bill, for the following reason. As the noble Lord, Lord Walton of Detchant, emphasised, there are no loopholes in this Bill. These amendments would overturn not only the Bland decision but all the legal and ethical principles contained in it and would in my view breach the human rights in the convention.

I am perfectly sure, although I am no longer on the Joint Committee on Human Rights, that if these amendments were to be referred to that committee and a legal opinion obtained— which, of course, it is too late now to do—it too would come to the considered view that these amendments were incompatible with, for example, Article 8 of the convention guaranteeing personal autonomy and Article 3 on dignity. and so on. As I say, however, I will not bore the House with that.

I should like to do a couple of things that I hope will be useful in this debate. The first is to remind the House of the safeguards that have been built into the Bill by the Government with our consent, which it seems to me are extremely important in giving the context.

The first point is that the Bill makes it quite clear that decisions to be taken about any treatment for someone who lacks capacity, whether or not it is life sustaining, must be determined by whether it would be in that person's best interests to receive the treatment. That is Clause 4.

Then, the Bill has been amended to make it clear that when someone is making a determination about whether life-sustaining treatment would be in someone's best interests, they cannot be motivated by a desire to cause the person's death. That is in Clause 4(5). That makes it clear that personal value judgments or a desire that someone should die for whatever reason have no part to play in determining what is in someone's best interests. That amendment ensures that artificial nutrition, for example, is not withheld inappropriately as a result of any value judgments by the decision maker.

Then, in addition to requiring that advance decisions that refuse life-sustaining treatment must be made in writing and witnessed, Clause 25(5) and (6) make it clear that an advance decision is not applicable to life-sustaining treatment unless it includes a statement that it is to apply to the treatment even if the person's life is at risk. That makes it clearer than the previous provisions. It requires anyone making an advance decision to refuse life-sustaining treatment not only to specify that they wish to refuse particular life-sustaining treatment, but also to specify that they wish that refusal to apply even if it risks death.

Those safeguards, together with the guidance which I understand will be included in a code of practice, will provide a completely balanced and workable framework to protect the sanctity of life and the patient's interests and, if I may say so, the ethical good practices of the medical profession.

Clause 26(2) provides that where the doctor is in any doubt about the validity and applicability of an advance decision, she or he can provide treatment according to the person's best interests safe from liability.

I have wearied the House with that because it is important to get the framework right.

In order that the House understands the clash of principle which underlines these amendments, I want to go back, as the noble Lords, Lord Carter and Lord Walton, have done, very briefly to one passage in Bland. I only wish that it were possible to summarise some of these principles. They deal, I think quite clearly, with a different philosophy—a complete different philosophy—from that of the movers of this amendment. For those who want to look it up, it is the 1993 Appeal Cases. The particular passage I am looking at is in the judgment of Sir Thomas Bingham, as he then was—then the Master of the Rolls; he is now, of course, the senior Law Lord—and it has not been mentioned in the House before. At page 809, he began by saying:
"if, presciently, Mr. Bland had given instructions that he should not be artificially fed or treated with antibiotics if he should become a P.V.S. patient, his doctors would not act unlawfully in complying with those instructions but would act unlawfully if they did not comply, even though the patient's death would inevitably follow. If Mr. Bland were a child and a ward of the court, it would decide what was in his best interests, having regard to the views of his parents but not treating them as conclusive … This case is novel because Mr. Bland is not a child and a ward of court, he is immune to suffering and, as already stated, he gave no instructions concerning his treatment if he were to become a P.V.S. patient".

I skip the next passage about what is artificial feeding, which the noble Baroness, Lady Murphy, explained very clearly, and why it is part of treatment. But then, Sir Thomas Bingham, as he then was, went on to say:
"It is relevant to consider the objects of medical care … traditionally they have been (1) to prevent the occurrence of illness, injury or deformity … (2) to cure illness when it does occur; (3) where illness cannot be cured, to prevent or retard deterioration of the patient's conditions; (4) to relieve pain and suffering in body and mind. I doubt if it has ever been an object of medical care merely to prolong the life of an insensate patient with no hope of recovery where nothing can be done to promote any of these objects. But until relatively recently the question could scarcely have arisen since the medical technology to prolong life in this way did not exist".

Then, Sir Thomas Bingham, as he then was, quoted case law from around the world—the United States, New Zealand, Canada—all to the same effect, and the Bland principles reflect those. I would ask those who are interested to look particularly at the New Zealand case that he summarises on pages 810 and 811 which, in my view, is wholly in accordance with Bland and wholly in accordance with the dignity of the individual, with the sanctity of life and with patient autonomy.

The problem about these amendments is that they would take away the Bland principles, even though I understand it to be said that that is not their intention. We know that certainly the noble Baroness, Lady Knight, is no friend of the Bland decision. Previously, I think that she was not very keen on it. But that is not the point. The point is that whether or not one is a friend of the Bland decision, in my view, the Bland decision, which is the law of the land, is entirely correct and should not be overturned.

My Lords, the record of what we say here is very important. Does the noble Lord not accept—perhaps he was not in his place when I said it— that I have said at least once if not twice that I agreed with the Bland decision? He is wrong in what he has just said.

My Lords, I am delighted to hear that and glad to know it, because these amendments cannot stand with Bland.

My Lords, before the noble Lord sits down, I wonder whether he is aware that in, for example. the United States, one can legally appoint another person to take these decisions on their behalf if their mental or even their physical condition is such that they are unable to make their views known.

My Lords, in the United States they use a slightly different test from ours; they use a substituted judgment test rather than a best interests test. But it comes to very much the same thing, and the ethical principles set out in Bland repeat what the Supreme Court of the United States and other courts in the United States and Canada have said. There is no real substantive difference between them. They are all to the same effect. They are all contrary to these amendments.

My Lords, I do not often trouble your Lordships' House with speeches, but I am troubled by a number of the issues that are raised in these amendments. I also think that the noble Lord, Lord Alton of Liverpool, is right in predicting that there may be a bit of trouble—to use "trouble" again—in another place unless we can find some way of perhaps getting some accommodation between all of us who wish to see this Bill on the statute book. But that said, I think that these amendments would ensure that basic care, which includes nutrition and hydration, however provided—as the noble Baroness, Lady Knight of Collingtree, has said, it is not just through tubes but through the mouth—is not withdrawn inappropriately.

I am not a medical man or a lawyer, but I am completely bemused by the classification of "foods and fluids" as medical treatment. I simply do not understand that, despite having read the helpful letters that have been circulated. I have yet to hear a convincing explanation why nutrition and hydration. however so delivered, should be classified as medical treatment and not as basic care—the sort of care that we heard about earlier regarding dealing with bed sores and other issues.

12.30 p.m.

Exactly what medical ailment is being treated? Since when has hunger or thirst been considered an illness? Those things constitute deprivations, not illnesses. It has even been established in the case of animals that freedom from hunger and freedom from thirst constitute two of the five welfare considerations to which all domestic animals are entitled. Surely it is not unreasonable for the same criteria to be applied to human beings as are applied in law to animals. If starving a sheep to death is worth a six-month prison sentence—as was reported some months back—how can it be logical, ethical or compassionate to justify the starving to death of a human being? I simply do not understand and I would like to be relieved of my burden of misunderstanding or stupidity by the Minister.

I hasten to add at this point that none of us wants to make unlawful the withdrawal of food and fluids delivered by artificial means from a patient who is in the process of dying, and where the placing of feeding tubes would be regarded as entirely and unduly intrusive and inappropriate—the kind of situation to which the noble Lord, Lord Detchant, to whom I always listen very carefully, has referred in the past—or where, indeed, the risk of placement of feeding tubes would be excessive.

However, in the Leslie Burke case, the High Court declared that it was hard to envisage any circumstances in which withdrawal of assisted nutrition and hydration (ANH) from a sentient patient—the kind of patient to whom the noble Lord, Lord Walton, referred— whether competent or incompetent, would be compatible with the European Convention on Human Rights.

The learned judge—I note that a very learned noble Lord, who is much more learned in the law than I—wishes to intervene.

My Lords, is the noble Lord aware that the decision of my old opponent in the Bland case, Mr Justice Mumby, as he now is, whose arguments were entirely rejected by the House of Lords in the Bland case, but who is now a learned judge, is now under appeal to the Court of Appeal with the consent of Mr Justice Mumby, and that the medical profession itself wishes to be joined and heard as to why that judgment, with which I respectfully disagree in certain respects, is wrong?

My Lords, I was not aware of the fact of which the noble Lord has just informed your Lordships. However, nothing in what he said prevents me continuing the argument which I was putting before the Chamber as a non-lawyer.

It is worth repeating that in the Leslie Burke case the High Court declared that it was hard to envisage any circumstances in which withdrawal of assisted nutrition and hydration from a sentient patient, whether competent or incompetent, would be compatible with the European Convention on Human Rights. It would be interesting to see what happens during that process hut in the mean time I refer to what we have on the record. The learned judge in the Burke case also referred to the suffering of patients caused by dehydration and starvation. Will the Minister confirm what safeguards are in place in this Bill to ensure that patients affected by it do not suffer through the premature and inappropriate withdrawal of nutrition and hydration? That to me is a fundamental issue. I suspect that it is also a fundamental issue for many members of all parties in another place.

I am deeply troubled—I am not often deeply troubled, just as I do not often trouble your Lordships' House with a speech—by the fact that the Bill does not provide for judicial scrutiny of decisions to withdraw assisted nutrition and hydration. Therefore, a case might reasonably be made that it is in breach of Article 8 of the European Convention.

My Lords, I hope that the noble Lord will forgive me for interrupting. I wish to put three questions to him. Does he agree that the administration of food and fluid through a feeding tube which invades the human body can be construed as medical treatment? I wholly agree with him that the giving of food and fluid to a sentient patient who is perfectly capable of giving or withholding consent is a part of basic care; that I do not deny. However, the noble Lord may remember that many years ago in connection with the Northern Ireland hunger strikers the whole issue was raised whether doctors had the right to force feed them and to force them to take fluid. After a great deal of ethical consideration. it was decided that they did not have that right. In other words, it still stands that the sentient, competent patient has the absolute right to refuse medical treatment even if he or she also refuses food and fluid.

The other point is that under the Bland judgment, as regards any patient who is in a permanent vegetative state, the tube cannot be removed without the approval of the High Court. This Bill does nothing to change that ruling.

My Lords, I entirely agree with the noble Lord in every sense that anything which invades the person is a medical treatment, but it may also be the critical way of delivering basic care. On the second point which the noble Lord made, when I was fortunate enough to join your Lordships' House in 1997, I promised myself never to use the words "I remember". However, I am afraid that I am about to break that promise to myself because I do remember in 1981 and 1982, when I was Parliamentary Under-Secretary of State in Northern Ireland—where I had been sent by the noble Baroness, Lady Thatcher, for disobedience for creating too much trouble on the Back Benches—sitting by the bed of the second of the hunger strikers, God rest his soul. when he was two days away from dying of starvation. The hunger strikers drank Highland Spring water. It was a sad and terrible thing to see. Of course, any hunger striker has the right to do exactly what they will with their own bodies in the sense that it was done in the Maze Prison in those dreadful and sad days. I hope that I never have to say "I remember" again in the time I am spared for the service of your Lordships' House.

However. I return to what deeply troubles me, and that is I do not think that the Bill provides for judicial scrutiny of decisions to withdraw ANH. Therefore, it may be in breach of Article 8 of the European Convention on Human Rights. The Joint Committee on Human Rights appears to be aware of the Bill's deficiency in relation to that. Paragraph 2.51 of the Joint Committee's 23rd report of Session 2003–04 states that,
"in relation to the withdrawal of ANH, the presumption in favour of life-sustaining treatment is not sufficiently strong in the Bill to satisfy the requirements of Articles 2,3 and 8 as explained by the High Court in Burke".
In its most recent report—the fourth report of Session 2004–05—which I commend to your Lordships, the Joint Committee urges the Government to amend the Bill to make it clear that if ANH is to be withdrawn or withheld, the document making that refusal or conferring the authority to make that refusal, whether an advance decision or lasting power of attorney, must make it clear that it applies to the refusal of ANH. Otherwise, ANH should continue to be provided, the committee states. The Joint Committee considers that reference to "life-sustaining treatment" is too vague and that people may not appreciate that a decision to refuse life-sustaining treatment would mean that they would be deprived of nutrition and hydration. We are dealing with human beings who may not understand technical terms at the time that they make this commitment. Therefore, I would like to know exactly what action the Government have taken in response to the Joint Committee's report. I am sure that the noble Baroness will tell us that in her response.

The noble Lord, Lord Alton of Liverpool, said that we live in a eugenic society. We have done so for many decades; it is just that it seems to be bubbling up to the surface now. We used to talk about people being "pro-life" and "the politics of pro-life". I do not mean party politics, but the way in which life issues get brought into the political process.

It is interesting for those of us who read the newspapers regularly to see how young female correspondents and commentators, often in their twenties and thirties, are now raising those issues, changing their minds, and changing the ground of argument, as they were once so much in favour of keeping the eugenic society under wraps on matters of abortion that the noble Lord, Lord Alton, referred to. The politics of death, which is the term that I prefer to use, will not necessarily roar but will come quite fast up the political agenda. I know that some people do not like to have some of those issues brought into politics. We had a case of that a week or so ago, when the Prime Minister said that he did not wish to have a particular pro-life/anti-life issue raised in the general election campaign.

None of us who are democrats should ever attempt—as Martin McGuinness has most recently done with the sisters and the fiancée of Mr McCartney who was killed in Northern Ireland—to rule something out of political debate. Anyone who has stood in any election in recent decades will know that those matters of life and death come up from the floor in question and answer sessions, very often promoted by the Church. None of us can rule the key issues out of political debate. The Minister would not seek to prevent that; she is much too sensitive and much too talented, and I had better stop there in case 1 damage her career. The issues of life and death and the politics of death will be part and parcel of the next few weeks and the next few years, and we are seeing a major sea change in people's attitudes to those issues. I hope that the Minister can find some way to allow all of us in both Houses who wish to see the Bill on the statute book to vote for it.

My Lords, this has been a long and interesting debate. I begin by saying to the noble Baroness, Lady Chapman, who opened the debate, that I was grateful for her words. I want to say something to her at a personal level. When I came into your Lordships' House, I found that I had to get to grips with the fact that the effect of individual words, because we are legislators, is different from that in the world that I came from. I wondered, as the noble Baroness was talking about dealing with words, whether the same thing is happening to her—that sort of journey into understanding that an individual word put in a law can have a huge effect. I shall return to that as I discuss the amendment.

I say to the noble Baroness, Lady Knight, that I would never want to weary her. I fear that sometimes the noble Baroness feels when I say that something is unnecessary, or use what she described as "anodyne" words, that somehow it is a failure to recognise the underlying interest and cause that she speaks for. I want her to know absolutely—I said it on Tuesday and I will say it again—that I fully understand and respect the issues that the noble Baroness has sought to raise. I say again to those noble Lords who have not been present throughout our debates that because of the work of the noble Baroness, it has become a bigger issue in the Department of Health and in the work that we are doing on this Bill to think carefully about how well basic care is provided for patients. I do not dispute or deny any of the individual, sometimes horrific, stories that she has told us, but that is about people not fulfilling their duties properly, and it is something that we need to address. I simply say that it is not addressed by the amendments.

I say to the noble Lord, Lord Alton, that I would never seek to bring anything that could be described as a threat to him. I have tried in the course of the passage of the Bill to meet and discuss with anyone who has asked me about any of the issues that have been around. We have tried to provide information, and we have had two sessions with palliative care experts in the House for noble Lords. I am sorry that the noble Lord, Lord Patten, was not there, I plan to send him the little briefing pack about why ANH is a treatment, which I think he would welcome. I have held open sessions every day that the Bill has been in the House. I have visited hospitals and talked to doctors and to as many experts as I possibly could. On Tuesday, I put forward the best case that I could, supported by some in your Lordships' House and opposed by others, about why I felt that it was unnecessary to do some of the things that the noble Lord, Professor Finnis and the Archbishop of Cardiff have sought.

12.45 p.m.

There was an Opportunity at that stage for those who put forward the amendment to seek the opinion of noble Lords. The noble Lord, Lord Walton, has indicated that he withdrew because he was satisfied. and the noble Lord, Lord Carlile, is of the same mind. The noble Lord. Lord Brennan, indicated to me last night that he would not be pursuing the issue. All I can do is try to persuade noble Lords of the issues. I will do no more than that, and I will not do it in any way other than the appropriate manner that noble Lords would expect; that is what debates are for. The noble Lord must consider whether and how he wishes to pursue this. It is no use saying to me, "In another place there will be concerns". Yes, there will be concerns. Noble Lords will be talking, as they do, to their opposite numbers, as am I. We are in your Lordships' House specifically to deal with the issues before us and to make our decisions and our judgments. Yes, I will continue to talk, but I have no intention of reversing my position as I laid it out on Tuesday. I would not want the noble Lord to think that I would do any other.

I want to make clear the position of the Department of Health on the Burke judgment, because it is important. The side issues around the Burke judgment were not around the provision of artificial nutrition and hydration, which we agree when it is in the best interests of a patient should always be provided: there is no issue about that. It was that alongside it came whether a patient could demand any treatment. There are two problems here that the Department of Health is interested in. The first is around clinical judgment. If a patient determines the treatment that they request that is different to a doctor saying, "This is what you need. You can choose to have it or not, but this is what I recommend". Secondly, there is the resource question that we need to get underneath within that. That is why the Department of Health has joined the Burke appeal, not because of the ANH issue, which it is clear about.

The noble Lord said, "Does the Bill support euthanasia?". It does not. Do the Government in this Bill, or do I, support a position of assisted suicide? No, my Lords, we do not. I do not. and I would not put a Bill before your Lordships' House that did anything to change the law on murder, manslaughter, or assisted suicide. I would resign my position. I would not do it, the Government would not do it, and I would not pretend to your Lordships" House if that were the case. This does not do it. People who have talked and debated with us have come to that conclusion. People of great eminence, not least the noble Lord, Lord Walton, and others who have looked carefully either from, as it has tended to be, a legal perspective or a medical perspective, have increasingly said to me, "I have looked, I have listened, I have looked again, and I agree". The noble Baroness, Lady Finlay, who cannot be with us, sent me a letter—I shall not bore your Lordships' House by reading it out—and she is clear that this Bill does not have the loophole. Clause 58 is clear; the law on murder, manslaughter and assisted suicide is unaffected. An advance decision cannot require a doctor to do anything, and certainly does not require a doctor to take any step to aid or abet suicide. An advance decision refuses consent to treatment. We all have a right to refuse consent if we have the capacity to do so. The Bill turns what is already in law—the ability to refuse consent—from common law into statute. We have said that when it is about life-sustaining treatment it must he written; it must be specific, and it must be witnessed.

For example, the noble Lord, Lord Alton, and I have talked about a young man of 19 with no apparent condition who comes in with an advance decision written and witnessed saying that he does not want anything done. Where the doctor is sure, because it is obvious that this person has tried to commit suicide, they can treat. The difference is that they can treat without any question of their being taken to court or sued under this Bill. That is a huge and important difference.

The second reason is that even if the decision was not of that type, if the doctor believes that the circumstances have changed in any way—that the treatment has moved on because it was written some time ago or that the individual has done something that suggests that they would not do that or whatever reason—he has only to have any doubt and he can treat, and continue to treat, while seeking advice from the courts if necessary. The Bill makes it much safer and much more protective for people than the current position. That is why it should be on the statute book as soon as possible.

The noble Baroness, Lady Oppenheim-Barnes, who I am pleased to see has joined our debates, raised a question about relatives. In the Bill there is a new right—which, I confess, I thought existed already—that the next of kin will be consulted. I did not know that there was no right in law for that whatever. In the Bill there is a new right for relatives and loved ones to have their voices heard when the doctor is deciding what is in that individual's best interests. I think that it is really important that if my husband, my son, my daughter or my stepchildren were in that position I would be able to be consulted and so would they—as loved ones. That is a very important safeguard. However, if, in that consultation, the doctor had concerns that a loved one was not acting in the best interests of the patient, he can treat. Again, there is a fundamental difference in the position.

I could spend a long time explaining to the noble Lord, Lord Patten, why ANH is a treatment, but I am not going to, because I shall send him the presentation by Professor Rob George, the palliative care expert, which is much better. It is not about classification. What matters in the Bill is ensuring that what is offered to the patient is in his best interests. The whole premise within the Bill is that if you are acting on behalf of someone who lacks capacity, you have to act in his best interests. You cannot do anything that is not in the person's best interests. For me, the only thing that could override best interests would be if I had written an advance decision that said, in certain circumstances and in a particular way, I would not want this. So, if I am a Jehovah's Witness I may wish to refuse a blood transfusion for religious reasons, which is my right, and decide to write that in an advance decision. Then, if I end up in a road accident and need a blood transfusion, which is clearly in my best interests, my decision on religious grounds can override that. I personally might not like that; the noble Lord might not like that; but that is the right of an individual.

I also wish to be clear that when it is in the best interests—

My Lords, could the Minister now, or at a later stage in her speech, to which I am listening with great care, address the specific question that I asked about why food and water are regarded as a treatment, not basic care?

My Lords, I was trying to get around that by offering to send the noble Lord specific details of the two sessions held in your Lordships' House with a palliative care expert. He explained specifically why artificial nutrition and hydration were regarded as a treatment. I was trying not to weary your Lordships House because some of us have considered this matter many times. If the noble Lord wishes me to go through that, I am able to do so. However, I felt that it might be of more use for the noble Lord to be able to reflect on the particulars and to talk to the palliative care expert who has made himself available to discuss these matters with any noble Lord who wishes.

My Lords, I am grateful to the Minister for giving way a second time and I shall not trouble her again. But I would ask her to reflect on the fact that there may be all sorts of meetings held by all sorts of people with all sorts of views—particular experts in this place, another place or in buildings outside—but it is in this Chamber, in your Lordships' Chamber, where these issues are debated. It is fundamentally undemocratic to suggest that a Minister should not reply to a point, because it happens to have been exhaustively debated in a couple of sessions held by experts in some other place. That is completely wrong.

My Lords, before the noble Baroness replies to that, is she aware that the answer was given by the Law Lords, the Court of Appeal and the judge of first instance in Bland? That is the law of the land and it would be pointless to go into it now. The noble Lord and everyone else can read what they have said. That is the law.

My Lords, I was also going to say that I covered this matter in Committee. I am not denying the Chamber the opportunity to discuss it. but we have debated these amendments before. Sadly, the noble Lord was not here and was not able to read Hansard. I am sorry that that was the case, but I was merely trying to say that I have a way of short-circuiting a whole process, which is to give him a presentation. He could ring the palliative care expert if he wished. He would be available, which I thought would benefit the noble Lord, who could return to the matter if he wished to at another stage. I am very happy to go through the reasons. I trust that the noble Lord will understand that I was not trying to circumvent democracy in any way, shape or form.

The noble Lord, Lord Walton, also specifically addressed this point as an eminent medical professional in describing the invasive nature of the treatment. If you wish to give someone ANH, you must obtain his consent. But there are real consequences for someone who has ANH treatment; for example, you have to watch that he does not become waterlogged, which can be a real problem. Kidney functions must be observed and blood must be regularly taken. For some conditions, ANH is detrimental—for example, with some forms of stomach cancer, where the provision of that food would enable the cancer to grow.

These are all issues that the medical profession believe put ANH into the category of medical intervention and, therefore, treatment—the reason being that you are bypassing the functions of the body and having to monitor the body in particular ways. The noble Lord may not agree with that view. I am not a medical expert, but I have gone to the medical experts and brought them to your Lordships' House so that they could make the position clear. It is also true that there are real side-effects for ANH, of which noble Lords will be aware. There is great discomfort on occasions, bloating or diarrhoea—many burdens that can be felt by the individual when this treatment is provided. So it is carried out with great care and in the right circumstances.

The critical point is that it is carried out when it is in the right and best interests of the patient. To a large extent I agree with the concerns of the noble Baroness, Lady Knight, and the noble Lord, Lord Alton. We should be giving people food and water and artificial nutrition and hydration when it is in their interests. We should not deny people those things. That goes back to the argument or discussion we had on Tuesday about the whole issue of basic care. It is a medical treatment because of the way that it has to be carried out and because of the consequences involved—

My Lords, I am grateful to the noble Baroness and I shall be brief. Will she answer two questions? She mentioned clearly that the nearest and dearest have a right to state their opinion. Does that opinion override and take priority over the decision that might have been made by any of the other consultees? As the noble Lord, Lord Patten, said, it seems that the Bill is incompatible with Article 2 of the human rights convention which states that everyone's right to life shall be protected by law. Is that the case? Is the noble Baroness engaged in any consultation about that?

My Lords, we are moving off into other areas. Regarding the first question, we have enshrined the right of a loved one to be consulted, which does not exist at all at the moment. We have also put in the Bill provision for a lasting power of attorney, so you can give to your loved one the ability to act on your behalf in a whole range of issues, including medical treatment. In all of those contexts, we have said that when you are treating someone the best interests of the patient are paramount. So if you have appointed a lasting power of attorney, but, on listening to that person, the doctor feels that he or she is not acting in the best interests of the patient, he can say, "I am not satisfied, I am going to treat; and 1 am going to go to court to obtain a decision on this".

That is the position. As I have tried to explain, we have made the position much clearer, much safer, but it is skewed and errs on the side of saying: when there is doubt, you treat. What you cannot do, whoever you are, is not to act in the best interests of the patient, because that would be completely wrong.

Our view is that the Bill is entirely compatible with Article 2. We are in discussion with the Joint Committee and will continue to be, but we think that there are no issues that have not been addressed. We are grateful to the committee, which has carried out a great deal of work.

Perhaps I may now deal with the point that underlies much of this issue—and it is worth stating what is in the Bill. I do not think that we can address the kind of negligence issues that have been raised by the noble Baroness in terms of basic care. I have said on many occasions, and I do not wish to weary the noble Baroness or anyone else, that those issues will need to be, and should be, addressed properly. What we have put in the Bill is a new criminal offence of neglect. That will capture professionals, as well as others, who withhold vital care and treatment from a patient in need. That is a substantial step forward, which recognises the importance of that issue.

My Lords, I welcome that provision and I am grateful to the Government for having included it. If, for example, a cup of tea was put aside and the patient could not reach it because of his incapacity, that would now be a criminal offence. I think that the Minister is right to remind us that that provision is in the Bill.

1 p.m.

My Lords, I am very grateful to the noble Lord. The provision is important because it is precisely about that point, and we should recognise that. The noble Baroness should take some credit for it, and rightly so.

I want to finish by setting out our three basic reasons for resisting the amendments. The issue of the way in which they are drafted goes back to what I said to the noble Baroness, Lady Chapman, at the beginning of the debate about the effect of words. Often when we discuss amendments, I know what underlies them but it is partly my job to explain what the amendments would do if they were included in the law. They would, in fact, force on people in their final days non-beneficial provision of artificial nutrition and hydration and other forms of lifesaving treatment, regardless of what was in the patients' best interests. I return to that point as the central plank of my argument.

Sometimes in a palliative care setting—the noble Baroness, Lady Murphy, will know this better than most—it is in a person's best interests for treatment to be withheld because it would confer no real benefit. Doctors balance benefits and burdens when determining whether a treatment is in the best interests of a patient. I remember that in Committee the noble Baroness, Lady Finlay, said that such decisions are determined almost on an hourly basis as the patient moves towards death in his final days. One is then balancing all the time.

In some end-of-life situations, it cannot be assumed that all or any treatments should be given just because they are available. That is not always the right thing for the patient, but the amendment would require that. I do not think that decisions to withhold life-sustaining treatment are taken lightly; they are taken with great love and care. In situations where the patient is dying, it is critical that he does not suffer a painful or undignified death. In palliative care situations, patients are not, and will not be, denied necessary hydration. Suffering is caused only where the care is negligent, and I repeat that that offence is now included in the Bill.

Secondly, under the amendment, patients would not be able to make an advance decision to refuse any form of life-sustaining treatment. That would lead to the situation that I described on Tuesday—it may seem a rather bizarre example but that would be the effect—concerning someone who had, for religious reasons, decided not to receive a particular treatment. That would be okay while the person had capacity but, under the amendment, when he lost consciousness and thus capacity, the advance decision would not count and he would be given the treatment. So it is possible that someone who was going in and out of consciousness would not have his religious views respected, and I would not wish to see that happen. Not only would the amendment affect those who have religious concerns but it would limit the personal autonomy for which we all strive and would create a disparity between what one can refuse contemporaneously and what one can refuse in advance.

Thirdly—this has been said many times and so I shall be brief—the amendment would overturn the Bland judgment. We would not wish to see that happen to that judgment, and the subsequent 36 cases, because it provides a good way of resolving a difficult and heartbreaking situation.

I have taken some time and I hope that my explanation has been helpful to the House. In the spirit of our continuing debates, I hope that I have answered as many of the points as possible and that the noble Baroness, Lady Chapman, will feel able to withdraw her amendment.

My Lords, I thank the Minister for her very detailed response. It is not my intention to overturn the Bland judgment, and I understand what she is saying. I still have concerns about non-dying patients having some treatments withdrawn but, because I hear what the noble Baroness is saying, I shall go away and rethink the matter. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 9A not moved.]v Clause 5 [Acts in connection with care or treatment]:

[Amendment No. 10 not moved.]

Clause 6 [Section 5 acts: limitations]:

moved Amendment No. 11:

Page 4, line 28, at end insert—
"( ) But D does more than merely restrain P if he deprives P of his liberty within the meaning of Article 5(1) of the Human Rights Convention (whether or not D is a public authority)."

The noble Baroness said: My Lords, we now turn to a group of amendments which respond directly to particular concerns raised by the Joint Committee on Human Rights. The committee wanted the Bill to confirm expressly that actions amounting to the deprivation of liberty do not fall within the definition of "restraint" used in the Bill. The amendments achieve that.

Amendments Nos. 11, 37 and 48 clarify that Clauses 6, 11 and 20 do not provide a defence against deprivation of liberty. That means that no one acting in connection with care or treatment under Clause 5, nor an attorney or deputy, may deprive a person who lacks capacity of his liberty. "Restraint" includes only restrictions of liberty.

Amendments Nos. 109, 112 and 108 are merely consequential amendments to ensure that the Bill defines the necessary terms of "public health authority" and the "human rights convention". We recognise that the distinction between restriction of liberty and deprivation is complex, and the Bournewood case is relevant here.

The European Court judgment in the Bournewood case made clear that the question of whether someone has, in fact, been deprived of liberty depends on the particular circumstances of the case. Specifically, the court said at paragraph 89 of the judgment:
"The distinction between a deprivation of, and restriction upon, liberty is merely one of degree or intensity and not one of nature or substance".
As noble Lords are aware, in the Bournewood case the European Court said that further procedural safeguards must be in place whenever deprivation of liberty is used in a person's best interests. I know that noble Lords will want to raise many more detailed concerns in relation to the Bournewood judgment, and I look forward to discussing them fully in relation to our Amendment No. 107. Meanwhile, I hope that this group of amendments addresses the concern of noble Lords and the committee that "restraint", as defined in the Bill, does not cover actions amounting to deprivation of liberty. I beg to move.

On Question, amendment agreed to.

Clause 7 [Payment for necessary goods and services]:

moved Amendment No. 12:

Page 5, line 2, at end insert—
"(3) Subject to subsections (1) and (4), a contract purportedly entered into by a person who lacks capacity to enter into the contract is not enforceable against that person and may be set aside on an application to a court made by or on behalf of that person.
(4) Subsection (3) shall not apply if the following conditions are satisfied—
  • (a) the terms of the contract are fair to the person lacking capacity,
  • (b) no other party to the contract knew or should have known that that person lacked or might lack capacity, and
  • (c) failure to enforce the contract against that person or the setting aside of the contract will cause loss or hardship to another party to the contract.
  • (5) It shall be for a party seeking to enforce the contract or objecting to its being set aside to prove that the conditions in subsection (4) are satisfied."

    The noble Lord said: My Lords, this amendment is of much less serious importance than the one that we have just been discussing. It raises an issue brought to my attention by the CAB.

    In English law, a contract entered into by a person lacking capacity can be set aside on his or her behalf only if the other party to the contract knew of the incapacity when he or she entered into the contract. In Scotland, I understand that any contract entered into by a person lacking capacity is unenforceable by the other party, even if the other party was not aware of the lack of capacity at the time of making the contract. According to the CAB, that system works satisfactorily in Scotland. Businesses in Scotland do not pursue claims against customers who turn out to have lacked capacity. It seems to me that, in fact, English law does not go far enough, although Scottish law may go a little too far in making all contracts unenforceable in that situation. I moved an amendment in Committee. I withdrew it after debate and have now returned with what I think is a somewhat improved version.

    In its briefing, the CAB refers to two contexts where there is an abuse of people lacking capacity and where remedies in English law are inadequate. The first and obvious one is where someone grossly overcharges a person lacking capacity for supplying goods or services or grossly underpays for property which he acquires from the person lacking capacity. The other context, which is perhaps a little less obvious, is where the person lacking capacity buys at a reasonable price goods or property which are inappropriate or for which the person buying them has no need.

    In Committee, I referred to one particular example from my own experience at the Bar involving a man who owned a small hobby farm and bought gigantic cowsheds to install on the farm, threatening ruin to his family. Steps had to be taken to make that impossible.

    Our amendment starts, with proposed new subsection (3) of Clause 7, by providing that any contract entered into by a person lacking capacity is unenforceable against that person and can be set aside by him or her. Of course. the person lacking capacity, or persons acting on his behalf, would always be free to enforce the contract against the other party if it was favourable to the person lacking capacity.

    Subsections (4) and (5) of the amendment provide for an exception from the rule that a contract is voidable where certain conditions are satisfied. I shall take my cowsheds example and show how those conditions apply.

    The first condition is that the terms of the contract are fair when looked at independently of the surrounding circumstances. As far as I know, the cowshed case involved sheds that were sold at the market price and the terms of the contract were perfectly normal; they were such as would have been insisted on by the supplier with anyone else. So the first condition there is satisfied.

    The second condition is that the other party was not aware of the buyer's lack of capacity and had no reason to suspect it. I cannot say whether that condition was satisfied in the cowshed case. Was the buyer's behaviour so strange as to raise doubts about his capacity? Was enough known by the provider of the cowsheds about the size of the farm or the herd involved to indicate that the sheds were wholly inappropriate? We do not know whether there was anything which required investigation.

    But, even if there is no cause for suspicion and both the first and second conditions are satisfied, the third condition also has to be satisfied. In the cowshed case, the supplier of the sheds must still show that he would be worse off if the contract were set aside than if the contract had never been entered into. This condition would be satisfied, of course, if the supplier had started building the sheds, had paid employees for working on them and had used materials which could not be recovered. The condition would not be satisfied if the contract could be cancelled at an early stage, before work was done on site or other substantial expenses had been incurred in performing the contract.

    I believe the amendment gives protection to people lacking capacity while protecting also the interests of other parties to the contract who have acted properly and would stiffer loss through its cancellation. I hope the Government will look on the amendment favourably and accept the principle behind it. I beg to move.

    My Lords, it was amusing to see the noble Lord, Lord Roper, arrive in the middle of the cowshed explanation.

    I have met with officials from the Department of Trade and Industry and my own officials to talk through these issues. I know that this is something about which the noble Lord. Lord Goodhart, feels strongly. I acknowledge, as does the noble Lord, that there is a tricky balance between empowerment and protection. We have also had discussions with the CAB. which we know is interested in this matter. On the one hand, we are trying to protect people who lack capacity from being bound by an inappropriate contract into which they may have entered; on the other hand, we are trying to empower people to take as many decisions as they possibly can. These include, perhaps, people with fluctuating capacity due to mental health problems, or people in the early stages of a degenerative disease who can make some decisions and not others. These matters have to be, in a sense, weighed in the balance.

    I cannot accept the amendment at this stage because, when I spoke to the officials about this matter, we were very uncertain about what would happen; we did not feel that we had the evidence before us of what the consequences might be. We need to consider whether the existing protections are inadequate and what would be the genuine practical benefits of the amendment. We also need to consider what its potential impact would be on business. That is a matter of great concern to the Department of Trade and Industry in particular.

    I am also worried about the risk of disempowering people; that traders might take risk averse action if they are fearful that somehow they will not be able to enforce a contract. We have spoken before about discriminatory issues and how people feel about other people. For example, a person with a learning disability, who is trying to make a contract with someone for the supply of goods, might find himself in a position where the trader is fearful that it will be decided that it is not a real contract and therefore will not do business with that person.

    I am sure the noble Lord, Lord Goodhart, will accept that there is also the possibility that his proposal could be used in fraud; that people could claim that they lacked capacity. We must remember that, under the Bill, lacking capacity could mean that you were blind drunk in an A&E ward. You can lack capacity for all kinds of reasons. Therefore there could be fraud where people claim that at a particular moment they had a mental health problem, lacked capacity, and therefore are not liable for what they have just purchased or what they have just done.

    The impact goes wider than consumer contracts; it could also affect personal relationships between individuals. These issues affect all vulnerable people, not only those who lack capacity, and I am keen to consider also the wider group.

    1.15 p.m.

    On a previous occasion I referred to some of the issues we have been addressing, particularly in the Department of Trade and Industry, in regard to doorstep selling—an issue about which I feel very strongly—the unfair commercial practices directive and the Consumer Credit Bill.

    I recognise that this is an important matter. I have committed my department—I wish to put this on the record—to carrying out scoping research work to assess whether there is a problem arising from the current law and, if so, the extent of that problem. This will take into account people who lack capacity and the broader group of vulnerable consumers more generally.

    The DCA will also commit to working with the Department of Trade and Industry as part of the implementation strategy of the Bill to ensure that policy development within the DTI on consumer strategy, credit and indebtedness is sensitive to the needs of consumers who lack capacity.

    I hope that that commitment will satisfy the noble Lord that I accept and recognise the principles he is seeking to develop. However, I cannot accept the amendment because I fear that we might accidentally do something around the empowerment issues, or something which will have a detrimental effect on business, because we have not had time to scope out the problem. On the basis of the commitment I have given, I hope the noble Lord will feel able to withdraw his amendment.

    My Lords, I am grateful to the noble Baroness. I welcome the fact that her department will undertake a scoping inquiry into the matter. It is an issue of some importance. Although there is a possibility that a situation under the amendment could be a source of abuse, equally there is no doubt that the law as it now stands could be a source of abuse in the other direction.

    I hope that in due course something will come of this. However, as I am sure the noble Baroness anticipated, I never intended to push the amendment to a vote. I hope that not too many other farms will be covered in enormous cowsheds in the future. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Clause 9 [ Lasting powers of attorney]:

    moved Amendment No. 13:

    Page 5, line 36, leave out "section" and insert "sections 1 (the principles) and"

    The noble Baroness said: My Lords, this is not quite such an entertaining amendment—there is not a cowshed in sight—but, nevertheless, it is important.

    In moving Amendment No. 13, I shall speak also to Amendments Nos. 16, 42 and 47, all of which concern attorneys, deputies and the court. 1 am very pleased to bring the amendments forward because currently the Bill makes specific reference only to Clause 4, the "Best interests" clause. The amendments are a response to the very helpful concerns raised by the noble Earl, Lord Howe, the noble Lord, Lord Kingsland, and the noble Baronesses, Lady Greengross and Lady Barker.

    We believe that ensuring that attorneys, deputies and the court follow the principles in Clause 1 is vital if people who may lack capacity are to be given the opportunity to make as many of their own decisions as they can. This, of course, is the burden of the Bill. They are already required to do so by the provisions of the Bill, but we agree with noble Lords that further emphasis would be helpful. This is what we have done.

    Let me reiterate that the principles are designed to empower and enable people who, in the past, might have had their lives taken over, their freedoms restricted and their decisions taken from them, albeit on the very good intentions of others. We want to ensure that people are enabled to make as many decisions for themselves as possible, so that they can lead as full a life as possible. The extension of those five key principles set out in Clause 1 make that very much more likely. Therefore, I beg to move.

    My Lords, I thank the Government for having responded so positively and constructively to the concerns that I and others raised in Committee. This added emphasis adds value to the Bill. I am grateful to the Government for listening.

    On Question, amendment agreed to.

    Schedule 1 [ Lasting powers of attorney: formalities]:

    [ Amendments Nos. 14 and 15 not moved.]

    moved Amendment No. 16:

    Page 37, line 5, leave out from "the" to "4" in line 6 and insert "duties imposed on a donee of a lasting power of attorney under sections 1 (the principles) and"
    On Question, amendment agreed to.

    [ Amendments Nos. 17 and 18 not moved.]

    moved Amendment No. 19:

    Page 38, line 5, after "severally" insert "in respect of any matter"
    The noble Baroness said: My Lords, these amendments concern the Court of Protection and deal with some small, but quite significant, issues, some of which were raised by my noble friend Lord Christopher. We touched on this on Tuesday. Since then, I have had the benefit of a discussion with the master of the court, Master Lush, and we have sought to resolve some of the outstanding issues that he had. We shall resolve them once the Bill is on the statute book.

    These amendments allow the Court of Protection to decide whether a lasting power of attorney is valid. That means that the court will be able to "blue pencil" a section of a lasting power of attorney that is ineffective or illegal and leave the remainder of the lasting power of attorney to stand. I have discussed this issue with my noble friend Lord Christopher and I feel sure that he would welcome this amendment, were he here. It is certainly something that the master of the court was concerned that we should deal with. The court can direct the public guardian not to register a lasting power of attorney whose flaws would make it inoperable. That is an important safeguard.

    Amendment No. 29 enables the Court of Protection to make a decision where there is an objection to a lasting power of attorney. That is particularly important when objections are not matters of fact; for example, if someone objects because they think that the proposed attorney lacks capacity.

    In Amendments Nos. 19,35,36,40,41 and 45 we are ensuring that a donor of a lasting power of attorney has all possible options when wanting to appoint more than one donee. So a donor can specify, on different matters, that all the donees must act together or that any or all of them may act. The donor could say, for example, that any of their chosen attorneys can act in relation to most matters, but, if they were selling the donor's house, they must all act together. Amendment No. 45 gives the same flexibility to the Court of Protection when it appoints deputies.

    Amendment No. 43 will help to ensure that the arrangements for supervising court-appointed deputies are robust, but I hope not too bureaucratic. The court will be able to grant powers to the deputy on condition that it first obtains the public guardian's consent for certain actions. It is important that the deputies are, of course, properly supervised, but it would be disproportionately burdensome and costly to require them to apply to the court all the time for authority to act. That supervisory role should properly be undertaken by the public guardian.

    Finally, Amendments Nos. 117 and 118 clarify that it will no longer be possible to create an enduring power of attorney once the lasting power of attorney provisions in the Bill come into effect. I beg to move.

    My Lords, once again, I thank the Government for introducing these amendments, which I agree are beneficial to the Bill. They provide welcome flexibility. The safeguards are still there, but at the same time the Government have ensured that the bureaucracy and procedural aspects are kept to the absolute minimum. I am very happy to endorse the inclusion of the amendments.

    On Question, amendment agreed to.

    moved Amendment No. 20:

    Page 38, line 16, leave out "11" and insert "10A"

    On Question, amendment agreed to.

    [ Amendments Nos. 21 to 25 not moved.]

    moved Amendment No. 26:

    Page 38. line 43, at end insert—
    "Instrument not made properly or containing ineffective provision
    10A (1) If it appears to the Public Guardian that an instrument accompanying an application under paragraph 4 is not made in accordance with this Schedule, he must not register the instrument unless the court directs him to do so.
    (2) Sub-paragraph (3) applies if it appears to the Public Guardian that the instrument contains a provision which—
  • (a) would be ineffective as part of a lasting power of attorney, or
  • (b) would prevent the instrument from operating as a valid lasting power of attorney.
  • (3) The Public Guardian—
  • (a) must apply to the court for it to determine the matter under section 23(1), and
  • (b) pending the determination by the court, must not register the instrument.
  • (4) Sub-paragraph (5) applies if the court determines under section 23(1) (whether or not on an application by the Public Guardian) that the instrument contains a provision which—
  • (a) would be ineffective as part of a lasting power of attorney, or
  • (b) would prevent the instrument from operating as a valid lasting power of attorney.
  • (5) The court must—
  • (a) notify the Public Guardian that it has severed the provision, or
  • (b) direct him not to register the instrument.
  • (6) Where the court notifies the Public Guardian that it has severed a provision, he must register the instrument with a note to that effect attached to it."
    On Question, amendment agreed to.

    [ Amendments Nos. 27 and 28 not moved.]

    moved Amendment No. 29:

    Page 39, line 17, leave out sub-paragraph (2) and insert—
    "(2) if the Public Guardian is satisfied that the ground for making the objection is established, he must not register the instrument unless the court, on the application of the person applying for the registration—
  • (a) is satisfied that the ground is not established, and
  • (b) directs the Public Guardian to register the instrument."
  • On Question, amendment agreed to.

    [ Amendments Nos. 30 and 31 not moved.]

    moved Amendments Nos. 32 to 34:

    Page 40, line 28, at end insert—
    "7A (1) Sub-paragraph (2) applies if the court determines under section 23(1) that a lasting power of attorney contains a provision which—
  • (a) is ineffective as part of a lasting power of attorney, or
  • (b) prevents the instrument from operating as a valid lasting power of attorney.
  • (2) The court must—
  • (a) notify the Public Guardian that it has severed the provision, or
  • (b) direct him to cancel the registration of the instrument as a lasting power of attorney."
  • Page 41, line 10, at end insert—
    "Severance of ineffective provisions
    21A If in the case of a registered instrument the court notifies the Public Guardian under paragraph 17A(1)(a) that it has severed a provision of the instrument, the Public Guardian must attach to it a note to that effect."
    Page 41, line 13, leave out "or 21" and insert ", 21 or 21A"

    On Question, amendments agreed to.

    Clause 10 [ Appointment of donees]:

    moved Amendments Nos. 35 and 36:

    Page 6, line 9, at end insert ", or
    (c) jointly in respect of some matters and jointly and severally in respect of others"
    Page 6. line 10, leave out "If" and insert "To the extent to which"

    On Question, amendments agreed to.

    My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion I suggest that the Report stage begin again not before 2.27 p.m.

    Moved accordingly, and, on Question, Motion agreed to.

    Gender Recognition (Approved Countries And Territories) Order 2005

    1.27 p.m.

    rose to move, That the draft order laid before the House on 20 January be approved [7th Report from the Joint Committee].

    The noble Lord said: My Lords, in laying this order for affirmative resolution, the Government are fulfilling commitments they made to both Houses following the recommendations of the Delegated Powers and Regulatory Reform Committee. The noble Baroness, Lady Buscombe, and the noble Lords, Lord Goodhart and Lord Carlile, proposed amendments to that effect.

    Members of this House might find it useful if I briefly outline the main objectives of the Gender Recognition Act before considering the detail of this order. The Act provides transsexual people with legal recognition of an everyday reality: the gender to which they now belong—their acquired gender. This is no mere legal technicality. It determines who an individual can marry, their pension rights and much else.

    The effect of legal recognition will be that the transsexual person is entitled to be treated for all purposes as a person of the acquired gender, and gains the legal rights and responsibilities appropriate to that gender. The Act sets out clear criteria against which a transsexual person applying for legal recognition will be assessed. Each application will be properly scrutinised by a Gender Recognition Panel, composed of people with legal and medical qualifications. That application process is robust, credible and sustainable, and was recognised as such by Parliament during the passage of the Bill.

    In drawing up that application process we had to be mindful of the fact that many other countries already grant legal recognition to transsexual people in their acquired gender. This is something we cannot ignore when so many UK citizens live and work overseas and just as many overseas citizens live and work in the UK. That is why Parliament agreed to include in the Act a process whereby a person who has gained legal recognition overseas can also gain legal recognition in the UK.

    However, Parliament also agreed that it was only fair to provide such individuals with a simpler process for gaining recognition in the UK. They will have already changed their gender and obtained legal recognition for that change. It would be unfair and unnecessary if, at the end of that long journey, they were required to repeat the full legal process in the UK.

    At the same time, Parliament and the Government were rightly concerned to ensure that the criteria set out in the Act were not compromised. If we were not alive to that danger, a person who did not expect to receive recognition in the UK could potentially go overseas to a country with much softer criteria. If by virtue of that overseas recognition that person also gained recognition in the UK, others would follow and the integrity and credibility of the process in the Gender Recognition Act would be damaged.

    This order protects the integrity of the application process in the Gender Recognition Act. We have undertaken careful research to identify those countries and territories which have a process for legal recognition at least as rigorous as our own, and it is our intention to publish details of that research on the Gender Recognition Panel website.

    The precise criteria for legal recognition of a change of gender are of course not standardised across the world. In drawing up this list we applied two key criteria: first, we allowed only countries or territories that provide legal recognition for gender change—the UK Act is about legal recognition and we felt that we should only approve others which had taken the same decisive step; and, secondly, we allowed only countries or territories where the process of legal recognition is such as to demonstrate the permanence of the decision to change gender.

    Of course that meant that there were countries which did not meet these tests. For example, one country which did not pass muster was Bosnia-Herzegovina. There, while there is a unique citizen's code which refers to "change in gender", the local police station makes the decision on change of name and change of gender. The legal adviser we contacted said that it was probable that such a decision would be based on documentation issued by a competent hospital. This was not good enough.

    The order can be revised as countries or territories establish new schemes for legal recognition. The links we have forged with contacts overseas through the Foreign and Commonwealth Office will enable us to keep the list of countries or territories up to date.

    Once alerted, we will investigate, and if we are satisfied that the criteria for recognition meet our requirements in terms of legality and permanence, an amending order will be brought before the House.

    Using the same network of contacts, we will also be able to monitor changes in policy which might cause us to withdraw a country or territory from the approved list. However, as countries which appear in this order recognise gender change in law it would be unusual for there to be any resiling from this position.

    The order has been consulted on and has received the support of the transsexual community.

    In summary, the order provides clarity as to those countries or territories with a process for legal recognition which we can trust. A transsexual person who has been recognised in any of the countries or territories on this list will have undergone a process of gender reassignment with the intention of living permanently in their acquired gender. I commend the order to the House.

    Moved, That the draft order laid before the House on 20 January be approved [7th Report from the Joint Committee].—(Lord Evans of Temple Guiting.)

    My Lords, I thank the noble Lord for that very full and helpful explanation of exactly what is behind the order. By giving that very full explanation most of my questions have been answered. In particular, I wanted to ask about the details of how the Government intend to check on the rigorousness of tests in other countries overseas. For example, in Bosnia-Herzegovina it seems that one just goes along to the local police station to have one's change of gender ratified. I am grateful for the explanation that that is not appropriate. The country cannot be put on the list at the moment, unless it improves its tests in the future.

    The noble Lord went on to say that there would be further orders in due course as evidence appeared from other countries on whether their tests were suitably rigorous, and the Department for Constitutional Affairs would be able to recognise them. How often will it be necessary to come to the House with further orders adding countries? I cannot remember whether under the Act it is only the first such order that needs to have affirmative resolution. Subsequent orders might not be possible with this particular order because of what happened at the time of the passing of the Act, but perhaps subsequent orders might be introduced under the negative procedure. Otherwise, the noble Lord will have to come to the House presumably with some regularity as he adds Bosnia-Herzegovina, then Idaho or India or whatever other country or state of the United States has been left out. I put that forward as an idea. It is certainly something that might be thought of in the future.

    I have one further minor question. In the Explanatory Memorandum we are told that a regulatory impact assessment has been prepared. I am sorry, I misread that. I see that one has not been prepared. I failed to notice the "not". I had some doubts as to what on earth any regulatory impact assessment could look at in this order. But I am glad to see that one has not been prepared on this occasion.

    With that perhaps I may say that I welcome this order. I shall be interested to know how many further orders we will have to see in the future and how often.

    My Lords, we fully supported the legislation under which the order is made. We are very happy to support this legislation.

    I am glad that the order includes a large number of territories. It includes the whole of Australia, almost the whole of Canada, 46 out of the 50 states of the USA, together with New Zealand, all the major European states and most of the minor ones. There are obvious gaps. For instance, the list does not as yet include any state that is wholly within Asia. It includes Turkey and Russia, both of which are partly within Asia. It includes no states from Latin America and it includes only South Africa from the states of Africa.

    So I hope that in due course it will be possible to come back; that the changes in the law which have been adopted here by the Gender Recognition Act and in many other countries will spread to those parts of the world as well; and that it will be possible therefore to get extensions from time to time with the approved countries. We feel that this is certainly a very big step in the right direction. We are entirely happy with it.

    My Lords, I am grateful for the welcome the order has received. There were a few questions from the noble Lords, Lord Henley and Lord Goodhart, with which I shall deal. The noble Lords might be interested in the criteria that we apply to territories when we engage in discussion with them. The speaking note is a long one. I shall not try and précis it because that will not do it justice, but I will make sure that both noble Lords have a copy of it because it is very interesting.

    I move on quickly to the recognition of the noble Lord, Lord Goodhart, that the list of countries is a very good one, although there are sad omissions. It will also be interesting for the noble Lords to see the list of countries and those with which we have decided we cannot make an arrangement at the moment.

    The noble Lord, Lord Henley, helpfully asked whether subsequent orders will be by affirmative or negative resolution. They will have to be made by a affirmative resolution: that was the arrangement that we made. However, we do not expect to be coming back to the House regularly. It is really too early to tell, but there may be an order once in every parliament. I am grateful for the welcome that the order has received. It is terrifically important and I commend it to the House.

    On Question, Motion agreed to.

    Courts Act 2003 (Consequential Provisions) Order 2005

    1.41 p.m.

    rose to move, That the draft order laid before the House on 9 February be approved [10th Report from the Joint Committee].

    The noble Lord said: My Lords, a draft of the order was laid before Parliament on 9 February 2005 and approved by a Commons Standing Committee on Delegated Legislation on 8 March 2005. The order updates wording contained in existing legislation, to make it consistent with the Courts Act 2003. It does not advance any new policy.

    The Courts Act received Royal Assent on 20 November 2003. The Act is designed to modernise the court system in England and Wales and improve access to justice for the public by enabling better use of resources nationally and locally. On 1 April 2005, most of the provisions of the Act not yet implemented will come into force. These include Sections 6, 7 and 8, which will render the terms "magistrates' courts committee", "justices' chief executive", "commission area" and "petty sessions areas", and variants on those, obsolete.

    Not all those concepts have a direct replacement in the new regime, but to the extent that they do, it is necessary to amend other legislation that uses those expressions so that the day-to-day operations of the machinery of justice can continue without disruption. I am convinced that the House will not want me to attempt to explain the effect of each provision, but an example will show what the order does.

    Section 6 of the Late Night Refreshment Houses Act 1969 provides that each licensing authority is to keep a register of licences for late night refreshment houses granted by it. Section 6(2) requires licensing authorities to give a copy or extract from the register to the,
    "justices' chief executive for any petty sessions area",
    falling wholly or partly within their area.

    From 1 April 2005, references to justices' chief executives and petty session areas will be redundant. It is therefore necessary to change the references mentioned, respectively, to read "designated officer for any local justice area". Paragraph 38 of the schedule to the order does that. The effect will be that the procedure described in the Late Night Refreshment Houses Act 1969 can continue undisturbed.

    That is a typical example of the minor and consequential changes which comprise this order. The order ensures that the obsolete references previously mentioned are removed by the time of the coming into force of the relevant sections of the Courts Act 2003 on 1 April 2005. The policies on these matters were fully discussed during the passage of the Courts Act 2003.

    Although I am confident that searches to identify the obsolete references in legislation have been comprehensive, I cannot be certain that all references have been captured in the order. If any other reference is found in future, it will be considered and the necessary amendment made. The provisions of the order have no impact on the rights set out in the European Convention on Human Rights. I can advise the House that to complete this necessary updating exercise, a further order dealing with secondary legislation, and subject to negative resolution procedure, has also been prepared. Copies of the secondary order are available from the Printed Paper Office. I beg to move.

    Moved, That the draft order laid before the House on 9 February be approved [10th Report from the Joint Committed].—(Lord Evans of Temple Guiting.)

    My Lords, I am grateful to the Minister on two counts. First, I am grateful for his assurance that there is no new policy in the order and that it is simply a question of semantics, changing the wording used in various Acts as a result of the Courts Act 2003. The whole House will be grateful for the fact that he thought it necessary to give us simply one example of the changes, rather than detailing all 113 paragraphs of the order. As I said, the order seems to be merely a question of semantics. As a result, we see the disappearance of the words "petty sessions" from a large number of places. As a publisher, 1 suspect that the noble Lord will find the replacement for many words—"chief executive", for example, will be replaced with "designated officer"—somewhat more ugly, but no doubt he was not party to the precise words chosen.

    Returning to the disappearance of petty sessions, when I was called to the Bar, some 20 or so years ago, I thought that petty sessions had long since ceased to exist, but I was obviously wrong in that. Is this the last that we will see of petty sessions, or did they disappear many years ago, back in the late 1960s or early 1970s, and merely the words have survived in various Acts until this order under the Courts Act 2003?

    My Lords, I have not checked through all the changes to see whether they are genuinely consequential, but they certainly appear so and I am happy to accept the Minister's word for it. Although the changes are consequential, the order upholds the principle that any amendment, even consequential, by secondary legislation of primary legislation should use the affirmative procedure. The Select Committee on Delegated Powers and Regulatory Reform has been pressing for that for some years. That is plainly right, even if it means that we deal with something that is of no general significance. Therefore, I am glad to welcome the order.

    My Lords, I am grateful for the speed with which we have dealt with the order. I absolutely take on board the point of the noble Lord, Lord Goodhart, about the affirmative procedure.

    The noble Lord, Lord Henley, is absolutely right: I regret the passing of some of this wonderful language. In 10 or 15 years' time, many of Dickens's novels will have to have footnotes to explain to readers what those wonderful institutions were. I am told that the petty sessions area will disappear and be replaced by "local justice area", which illustrates my point.

    On Question, Motion agreed to.

    Social Security Commissioners (Procedure) (Amendment) Regulations 2005

    1.48 p.m.

    rose to move, That the draft regulations laid before the House on 23 February be approved [10th Report from the Joint Committee].

    The noble Lord said: These amending regulations are brief and highly technical in nature. They do not substantively alter the operation of commissioner procedure, except only to provide for the new appeals from the Pensions Appeal Tribunal. The policy rationale for the changes was debated during the passage of the Armed Forces (Pensions and Compensation) Act 2004 and I do not intend to revisit those issues here. However, it may assist noble Lords if I set out some background to the regulations.

    The Act received Royal Assent last November. It establishes a new pensions and compensation scheme for members of the Armed Forces. Members of our armed services have the opportunity to appeal decisions about service pensions and compensation to an independent body, the Pension Appeal Tribunal. The tribunal's jurisdiction is being extended to hear appeals against decisions of the Secretary of State under the new scheme.

    A small number of the Pensions Appeal Tribunal's decisions—currently about 20 a year—are appealed in the High Court on a point of law. The Act changes arrangements for those onward appeals. The social security commissioners are to be introduced as that second-tier appellate tribunal, replacing the High Court. That reform to the path of an appeal implements policy in the Government's recent White Paper Transforming Public Services: Complaints, Redress and Tribunals.

    Noble Lords will know that there was a debate during the passage of the parent Act on the removal of funding for appellants' legal representation. I do not want to reopen debate on matters decided in the Act, except to note that we consider the new arrangements more favourable for appellants. Having two levels of tribunal provides a quicker, more user-friendly and more cost-effective service to the parties involved, with no need for lawyers.

    These regulations provide for the process of appealing from the Pensions Appeal Tribunal to a social security commissioner and the procedure for appeals before a commissioner. We are amending the existing Social Security Commissioners (Procedure) Regulations 1999 that govern procedure for appeals to a commissioner.

    It may help noble Lords if I mention the main features of the regulations. Regulation 2 changes a number of definitions in the 1999 regulations; for example the definition of "appeal tribunal" is broadened to include a "Pensions Appeal Tribunal". Sub-paragraph (g) of Regulation 2 also provides that a commissioner hearing appeals from the Pensions Appeal Tribunal is to be known as a "Pensions Appeal Commissioner". That recognises the special status of armed service appellants. We felt it appropriate for their appeals to be distinguished from the general matters of social security. The ex-service organisations supported that approach in consultation on the Bill.

    Regulations 3 to 7 insert appropriate references to the Pensions Appeal Tribunal Act 1943 into the regulations. That ensures that regulations on matters such as hearings, decisions of a commissioner and so on deal with appeals from the Pensions Appeal Tribunal. Regulation 8 establishes the procedure for onward appeal of decisions of the social security commissioners to an appellate court. A person dissatisfied with a decision of a commissioner may appeal on a point of law to the Court of Appeal in England and Wales or the Court of Session in Scotland.

    I should mention that this instrument is subject to the affirmative procedure because appeals from the Pensions Appeal Tribunal will be subject to the existing strike-out and reinstatement provisions of the Social Security (Procedure) Regulations. We are not changing the operation of those strike-out procedures, merely extending them to include appeals from the Pensions Appeal Tribunal. I beg to move.

    Moved, That the draft regulations laid before the House on 23 February be approved [10th Report from the Joint Committee].—(Lord Evans of Temple Guiting.)

    My Lords, I thank the noble Lord for that explanation. As he says, these are merely procedural regulations. I wish to raise only two points. First, I had hoped that the noble Lord could remind us exactly why it was felt necessary to change the process of appeals on a point of law from the High Court to the social security commissioners. He has given a partial explanation.

    My second point was about appeals beyond that. I now understand that they are to be dealt with by the Court of Appeal. I think that the noble Lord said that that was provided in Regulation 8, but I would be grateful if he could confirm whether that is the case, because the paragraph does not help much, unless I look also at the 1998 Act. I have no further objections.

    My Lords, we accept that this is a reasonable step and have no objection to the terms of the regulations.

    My Lords, again, I am grateful for the speed with which the regulations have been dealt with. The noble Lord, Lord Henley, asked why we were changing the path of appeal. The Department for Constitutional Affairs is working to modernise the UK tribunals system. Modern policy on tribunals holds that there should be a second-tier tribunal to hear appeals on points of law before a matter arises in the courts. The commissioners will be introduced as the second-tier appellate tribunal. We believe that having two levels of tribunal provides a quicker, more user-friendly and more cost-effective service to the parties involved, in comparison with the courts.

    I am afraid that I shall have to write to the noble Lord on his interesting question about Regulation 8. I shall do that at the beginning of next week. I thank both noble Lords for their welcome of these regulations and the two orders.

    On Question, Motion agreed to.

    My Lords, I beg to move that the House do adjourn during pleasure until 2.28 p.m.

    Moved accordingly, and, on Question, Motion agreed to.

    [ The Sitting was suspended from 1.55 to 2.30 p.m.]

    Mental Capacity Bill

    Further consideration of amendments on Report resumed.

    Clause 11 [ Lasting powers of attorney: restrictions]:

    moved Amendment No. 37:

    Page 6, line 43, at end insert—
    "( ) But the donee does more than merely restrain P if he deprives P of his liberty within the meaning of Article 5(1) of the Human Rights Convention."

    On Question, amendment agreed to.

    moved Amendment No. 38:

    Page 7, line 12, leave out from "treatment" to "and" in line 13.

    The noble Earl said: My Lords, in moving Amendment No. 38, I return to a concern that I raised in Committee about the power of veto over life-sustaining treatment that may be held by individuals who act under a lasting power of attorney.

    It is, I think, the position of the Government that this power, far from being a threat to patients or a difficulty to doctors, will be beneficial to both. I can well see that in many cases that will be so. An attorney with close knowledge of the patient, looking to the patient's best interests, will be of inestimable help to a treating doctor who may never have met the patient before and may know nothing of his wishes, beliefs and preferences. In very many cases—perhaps the majority—the doctor and attorney will be in agreement about what is in the patient's best interests, and no problem will therefore arise. The problems arise when doctor and attorney are in disagreement.

    Both of them are required under the Bill to work in the patient's best interests. But the interpretation of "best interests" is open to difference. What the Bill is saying is that, in the worst case, an attorney with no medical knowledge whatever can take it on himself to gainsay a doctor whose professional advice is that the patient whose life is at stake should receive certain treatment. It might be perfectly possible for the attorney to maintain, with some justification, that his decision to refuse consent was taken in the best interests of P. But the doctor, who had close knowledge and experience of the treatment, might not think that a fair and reasonable view of best interests.

    What happens then? The Bill allows the doctor to seek a ruling from the court where there is such disagreement. But let us take the example of a doctor who has no previous knowledge of the patient and who is confronted by an attorney with no medical expertise and articulates his views plausibly and forcefully. Are we going to imagine that every doctor in that position will have the strength of purpose and the degree of self-belief to refer the matter to the court? I find that unlikely. Doctors are professional people, but they are also human. I very much fear that some will be browbeaten into agreeing to a course of action that runs contrary to their better judgment.

    The Government's amendment in Clause 4(5) is most welcome; but the fact is that in many situations involving attorneys it will be absolutely impossible for anyone to detect whether the attorney is or is not motivated by a desire to bring about the patient's death. It is quite possible to imagine circumstances where that desire is wrapped up in some extremely plausible-sounding arguments about best interests.

    But malign intent on the part of the attorney is not the only issue. I do not think that, as a rule, doctors will want to go beyond a certain point in seeking to persuade an attorney that treatment should be given where the attorney disagrees. Let us imagine that the doctor emphatically insists on his point of view. If the attorney were to acquiesce, reluctantly and against his better judgment, and the treatment goes ahead only for it to result in the patient recovering but then living in a severely disabled state for a long period, we do not need much imagination to see what would then happen. The attorney would be moved to sue the hospital on the grounds that had the doctor not insisted on his view prevailing, the clear adverse outcome for the patient could have been avoided.

    If they know that an LPA exists, doctors may therefore be inhibited in some situations from acting in accordance with their professional judgment. One thing this Bill is careful not to do elsewhere is to fetter the clinical freedom and professional judgment of doctors, other than in those cases where the patient himself has expressed a valid and applicable advance decision to refuse treatment. Where there is an LPA, it is not the patient who is refusing treatment; it is his attorney standing in his shoes. That, I suggest, is a very important difference. On every matter other than the giving of life-sustaining treatment, it is a difference that I am prepared to live with because of the undoubted benefits that LPAs will bring. But when it comes to life-sustaining treatment, the pitfalls are in a class of their own.

    Here we come back to a point I raised in Committee about the European Convention on Human Rights which the Minister did not properly address at the time. Article 2 of the convention refers to the right to life. The Joint Committee looked at this and found that although Article 2 imposes positive duties on the state to uphold an individual's right to life, a public authority cannot be compelled to impose treatment against a person's express wishes. I have no difficulty with that. Where it is indeed the person's express wishes, there is no problem, but an attorney taking a decision under an LPA is by definition not articulating the person's express wishes. He is exercising his own judgment. The attorney's judgment and the patient's express wishes are not, I suggest, legally on a par. It is as though the Government, in supporting the provision in Clause 11(7)(a), is asking Parliament to accept that in matters of life and death, patient autonomy can be alienated. I do not believe that that is right or possible. It is not good enough to say, as the Minister did in Committee, that the attorney is acting because the donor wishes him to do so. From a human rights perspective, that dodges the issue. In Committee the Minister sought to draw a distinction between court deputies with a power of veto and attorneys with the same power. I suggest that from the human rights point of view, there is no difference. If we remove the power for one, as we are going to do later today, we should remove it for the other.

    The problems I have outlined arise from giving, an attorney a legal right of veto over life-sustaining treatment as opposed to a legal right to be consulted. I have no difficulty about an attorney being consulted about life-sustaining treatment. That is entirely right and beneficial. But when a patient's life is at stake, the doctor's professional judgment to treat a patient should not be fettered by the veto of a third party.

    I should like the Minister to agree to reflect on this issue further. She must understand that I am not attacking or questioning the benefit that will flow from the generality of decision-making under LPAs; indeed, quite the reverse. But it is no accident that in this country and in the civilised world, we place human life and the right to life into a category of its own. The Bill should follow the same principle in the way proposed in this amendment. I beg to move.

    My Lords, I strongly support Amendment No. 38, which the noble Earl, Lord Howe, has moved. He is right to see the matter as being of a piece with the debates that we have had about best interests and intention and purposes—all the debates that have flowed through our Committee and Report proceedings. He is absolutely right to draw a distinction between the right of veto and the right of consultation. The amendment is therefore extremely helpful.

    It is worth drawing the attention of your Lordships to how the amendment works. Clause 11(7)(a) states that,
    "subsection (6)(c) does not authorise the giving or refusing of consent to the carrying out or continuation of life-sustaining treatment, unless the instrument contains express provision to that effect".
    Those words—
    "unless the instrument contains express provision to that effect"—
    would be deleted if the noble Earl's amendment were successful. That is exactly the right way for us to proceed. It is also consistent, as the noble Earl said, with other decisions that your Lordships will probably make later today.

    No one should have such powers over life and death vested in them. That is at the heart of the issue, and we are right to be directed into that area. We should also reflect perhaps on some of the abuses to which the provision might lead. It is not that everyone who holds the lasting power of attorney would want to take the life of someone whom they are caring for—no one is suggesting that—but we all know that abuses can take place.

    I recall vividly, just before I left another place in 1997, a man coming to see me at a constituency surgery and telling me about his own experience. He was born in Germany and came to Liverpool with his mother after she parted from his father. His father had settled in Holland. The man in question, after the death of his mother, decided he wanted to track down and meet his father. He travelled to Holland only to find that his father was one of the nearly 10,000 people who had had their life taken that year through euthanasia. I think about 5,500 people died through involuntary euthanasia last year in Holland.

    The point about that case was that the stepbrother had authorised the euthanasia. The man who had come to my surgery complained that the doctor who had carried out the euthanasia had been one of the beneficiaries. He had been given a highly valued piece of art from the man's father's art collection. The case went all the way through to the judicial authorities in Holland, and a petition was laid before the European courts. Needless to say, it ultimately went into the sands. We should be concerned not to build into legislation in our jurisdiction the opportunity for people to benefit. Although, as the noble Earl said, doctors are also human—he pointed to the danger of their being browbeaten—it worries me that, in their humanity, doctors are, like the rest of us, capable of being tempted as well. We must guard against those circumstances. The law could be subverted unless we enact the sort of provision that the noble Earl has laid before us. It is a loophole that needs to be closed, and I hope that your Lordships will do it.

    My Lords, will the noble Earl or the Minister enlighten me about what otherwise I see to be the implication of the amendment; that is, that the right to refuse burdensome treatment by means of an advance decision would not be available to people who lacked capacity under this clause? If I could be enlightened about that, I would know what I thought about what was being proposed. The references of the noble Lord, Lord Alton, to a case of euthanasia do not, with great respect, seem to be relevant at all to what the Bill intends.

    My Lords, with the leave of the House, perhaps I may answer that. It is certainly not my intention through the amendment to address advance decisions. It relates to lasting powers of attorney, where a person grants a lasting power of attorney to another individual over matters of life and death. It does not relate to advance decisions. The Bill states that, where the power is specifically provided for, the attorney may refuse consent to life-sustaining treatment. My amendment would remove that provision, so that attorneys did not have that power.

    2.45 p.m.

    My Lords, I entirely support the amendment of my noble friend Lord Howe, particularly after that helpful response to the important question of the right reverend Prelate the Bishop of Worcester.

    I have three points. First, a number of phrases and words that my noble friend used resonated strongly with me. They bear listening to. My noble friend said that his amendment was beneficial to patients and to doctors. I profoundly believe that to be true. Even more importantly, he said that, in the end, no attorney should gainsay any doctor in his decision. If it came to decision-taking, I would accede to a doctor's judgment ahead of the judgment of an attorney. That is why my noble friend's amendment and his gentle request that the Minister reflect on the issue are so important.

    I turn to my second point. The removal of the words,
    "unless the instrument contains express provision to that effect",
    from Clause 11(7)(a) would give the doctor the opportunity to override the attorney. If the words remain, an attorney can override that doctor. That strikes me as being bad in principle and bad in practice and not to be in the best interests of doctors and patients.

    My third point is in response to the advice, related to this issue, that has been issued by Peter Smith, the Archbishop of Cardiff, who, as the House will know, is chairman of the Department for Christian Responsibility and Citizenship of the Catholic Bishops' Conference of England and Wales. I know that no one in this House would therefore dismiss this as being a Roman Catholic issue. It ain't; it is a general issue of humanity in the increasingly eugenic society in which we exist. The Archbishop, in a letter to Jim Dobbin MP on 3 March, wrote:
    "As you know, we have welcomed the Government's amendment to clause 4(5) of the Bill. In our view this provides an important safeguard which, provided the courts interpret it as it is intended, will ensure that doctors, proxies and other third parties are given no authority by the Bill to make decisions with the intention of bringing about a person's death".
    So far so good—His Grace the Archbishop is perfectly satisfied. But he continues: "But"—the "but" is very important—
    "this amendment still leaves a major gap. It does not cover advance decisions. The clauses dealing with advance decisions, although tightened up, still leave open the possibility that an expressly suicidal advance decision is binding".
    As we go through the remaining stages of the Bill, it is important to bear it in mind that those in the Roman Catholic Church and other Churches, and doubtlessly individuals, feel that what the Government have done in good faith so far to amend the Bill—I thank them for that—does not rule out the opportunity of an adverse decision. So, I fully support everything that my noble friend Lord Howe has said.

    My Lords, it has fallen to me to speak from these Benches. I am sorry that my noble friend Lady Barker has been called to an important engagement elsewhere and has left me to hold the fort on her behalf.

    I will wait with interest to hear what the Minister says, because my initial reaction to the amendment is not entirely favourable. To personalise the issue, I might well say, if I thought that I was at risk of losing capacity, that I wished my wife to have the power to take a decision on my behalf and that I would trust her absolutely to take the decision that, she felt, I would have taken, had I been able to take it. I believe that there would be many cases of that kind. It is obviously something that has to be done with care, and it is absolutely right that if the attorney is to be given power to give or refuse consent to life-sustaining treatment, the power of attorney document should contain an express provision to that effect. But I would not wish the donor of the power of attorney to be placed in a position where he or she could not give to someone whom they wholly trust the power to take a decision on their behalf.

    My Lords, this is an important debate. I say immediately to the noble Earl, Lord Howe, that of course I am always committed to reflect on everything that we discuss in your Lordships' House, because it is an important part of ensuring that the Bill goes back to another place in the best possible order. I am very clear about this part of the Bill, and I believe that it would be helpful if I explained precisely what the Bill does and what the position is, so that noble Lords can then reflect on those matters as well, and we can continue the very helpful dialogue that we have had. I am always mindful of the word "attorney", because it has lots of connotations. In this particular context, it means somebody whom you or I choose, who we believe cares most about us. It could be our husband, wife or partner, our children or our best friend whom we have known all our lives. But it is up to us to make that choice. It is entirely voluntary; no requirement is made on anyone to do it. The noble Lord, Lord Patten, was very clear that if it came to it, he would prefer the doctor to be in control in that situation. That is fine—he need not make a lasting power of attorney. No one is requiring him to do so under the Bill; it is entirely his choice.

    For some people, it might be an important choice. There will be people who believe that when it comes to making decisions when they lose capacity—particularly when they are aware that they might lose capacity—they will want somebody whom they love and trust to be in charge. Some people who give that lasting power of attorney will prefer that that attorney should be able to give or refuse consent on treatment necessary to sustain life. They believe that the man or woman to whom they have been married or the child whom they have known all their lives will make the right decision in those circumstances, rather than a doctor who may not know them at all.

    There is an interesting issue about the choice that people make. However, the person chosen can do that only if within the power of attorney given to them it is said that they have such a power. So you cannot accidentally give someone lasting power of attorney on life and death decisions: you have to be explicit, under Clause 11(7)(a). The attorney can include conditions or restrictions in that regard, under Clause 11(7)(b), to say that "in these circumstances but not in those" or "this but not that". So we are very clear that it is in the hands of the donor, whether the donor is myself, the noble Lord, Lord Patten, or the noble Earl, Lord Howe, to say, "I wish that person to have this power in these circumstances". Unless it is that express, the power does not exist; when it is that express, it does exist.

    Then we get to the situation that some noble Lords fear, when you end up in a position in hospital and there is a conflict between the two people involved. The first thing to say is that the attorney whom you have nominated—your loved one—has a statutory duty to act in the person's best interests. Therefore, we get back into the issue of best interests, in the Bill, very quickly. If a doctor says, "It is my view that we should give this treatment", and the attorney says, "No, I don't want that for them"—the attorney may be saying that for very good reasons, not bad ones, but in any event the attorney says "No"—and the doctor believes that for whatever reason, such a decision is not in the best interests of the patient. the doctor can treat. The Bill is skewed to say, "If in any kind of doubt, treat". Doctors can seek clarification from the court, and they cannot—to answer the noble Earl's question—be sued under those circumstances. One thing that the Bill does is to protect doctors, enabling them to make those decisions in the right way.

    To answer the right reverend Prelate, Clause 25(2)(b) is clear that a lasting power of attorney made after an advance decision to give or refuse treatment to which the advance decision relates will make the advance decision invalid. Similarly, if the advance decision is made after the lasting power of attorney, the reverse is true. So timing is everything in that regard.

    I add that the provisions are compliant with Article 2, because the attorney is chosen by a competent adult and can act in this Bill only in the best interests of the person. If that is not the case, the courts come into play and treatment is provided meanwhile. Therefore, the measure is compliant with Article 2.

    In summary, the provision gives the right to an individual to say, "I want to appoint somebody to have power of attorney for me". That does not relate solely to medical issues, but we are in that area, so let us stick with that. Within that the individual can say, "I can appoint my husband, wife or child to say that at the final end of my life, that person has the right to say whether I should or should not have the treatment. I would choose that person because they know and love me best and that is what I want—and I am allowed to do that". If when we reach that point the doctor believes that there is any activity going on of a rogue nature or believes that the person is misguided, too distressed or whatever else, the doctor can continue to treat and seek the court's view—and no doubt on the way, I hasten to add, other medical opinion. The doctor cannot be sued.

    My Lords, I am sorry to interrupt the Minister, but I am following her argument as closely as I can. If what she has just said is the case, why are the words that my noble friend Lord Howe wishes to delete necessary?

    My Lords, I think that is because those words say that you must expressly state your wishes within the lasting power of attorney. If you wish somebody to have power over life-sustaining treatment in the lasting power of attorney, you have to say so absolutely.

    To conclude, I believe that we have got the right balance between the right of individuals in our society to appoint someone whom they love and trust to act on their behalf and the right of the medical profession, which very much welcomes this area of the Bill, to be able to say, "That's great—I welcome it very much—but if I am in doubt about the behaviour of this individual, I am covered in law by the right and responsibility to treat while I seek a legal view". I believe that to be the right balance.

    Of course, I shall reflect on the matter further, but I hope that noble Lords will feel that that puts the best possible position in this area, and that the noble Earl will feel able to withdraw his amendment.

    My Lords, this has been a very good debate and I am grateful to all noble Lords who have spoken. The question that we should have in our minds is, surely: what is to be gained by having this power in the Bill and what is to be lost? To me, the potential losses far outweigh the potential gains. The Minister says that we should allow people to appoint their own attorneys to take life and death decisions, if that is what they want, but we may be in danger of creating a misleading impression if we say that to people in quite those terms.

    With regard to life and death decisions, the power in the Bill is essentially one way. An attorney cannot insist on a patient being treated if a doctor is not willing to offer treatment. All that he can do is to refuse consent to treatment which a doctor believes should be given. How responsible is it for us to allow an attorney to have such a power? The vast majority of attorneys will not be medically trained, yet, if the paragraph stands, they will be able to second guess and overrule doctors.

    My Lords, I am sorry to interrupt the noble Earl, but what he is saying made me think immediately of a case that is very different but which is quite relevant—the case of Baby Wyatt. In that case, the doctors wished to withdraw treatment for very profound and, I am sure, good clinical reasons, and the family said that they did not want that. You could relate that to the issue of lasting power of attorney.

    It would be wrong to suggest a lay person, however good, could insist that the patient had X or Y treatment, because that would be to defy clinical judgment. If a doctor came and said, "I think I would like to take the treatment away now", they would have the right to say, "No; I want to continue with the treatment". That is important, too. Then they would have to go to court to resolve that dispute, too.

    3 p.m.

    My Lords, I am very grateful to the Minister and I will certainly reflect on that point.

    If a doctor's professional judgment, nevertheless, is that the patient's life is worth trying to preserve and that the treatment is in the patient's best interests, why should we enable untrained third parties to overrule that judgment by deciding that life is to be brought to an end? What do we think we are protecting the patient from by doing that? As a general rule, I believe, doctors do not strive officiously to keep patients alive. We might have had that fear if the Bill were amended in ways that have been suggested, but not as the Bill stands. How fair is it on doctors to put them in the sort of position I have described? My noble friend Lord Patten made a very good point on that issue. A doctor may welcome the advice of an attorney, but I doubt whether, in a grave matter of this kind, he would wish an attorney to overrule him. Indeed, I think it could put the doctor in an invidious and very stressful position.

    I come back to a point I raised earlier. The noble Baroness says that she is satisfied on it, but I am still troubled by it. We are in danger of bamboozling ourselves, I think, into believing that it is somehow all right for patient autonomy over life itself to be alienated. Delegating autonomy in the generality of matters is one thing, but on the right to life, I suggest, it is a step too far.

    I do not propose to divide the House today because, having asked the Minister to reflect on the issue, the least I can do is to agree to do the same.

    My Lords, I am extremely grateful to my noble friend for giving way. I am not a people's Peer, as he knows; I am a simple Peer. At the moment, I simply do not understand why these words are necessary. I am not asking my noble friend to answer this question—I will go away and reflect, as the Minister has rightly instructed us to do, and as we should do. However, I think there is a substantial chance that if these words remain they will become—when this Bill goes to another place, in the minds of people such as Mr Dobbin, on the Labour Benches, or my right honourable friend Mr Duncan Smith, on the Conservative Benches—a loophole issue.

    If this remains, I think that it will remain as a loophole. We will need the most persuasive arguments from the Minister to persuade us that it is not a loophole. I do not know whether my noble friend takes that point.

    My Lords, I confess that I have not spoken to honourable Members in another place about this particular issue, although what my noble friend says may well be correct.

    I think it behoves me to withdraw the amendment. As I say, I am grateful to the Minister for what she has said. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    moved Amendment No. 39:

    Page 7, line 14, at end insert—
    "( ) Any registered provider, manager or member of staff of a service registered within the terms of the Care Standards Act 2000 (c. 14) will not be permitted to assume a lasting power of attorney for any person to whom they provide care in a paid capacity."

    The noble Baroness said: My Lords, in moving Amendment No. 39—which stands in my name and those of my noble friend Lady Howarth and the noble Baroness, Lady Barker, who is not here—I shall speak also to Amendment No. 49. These amendments touch on issues that we debated in Committee in amendments moved by my noble friend Lady Howarth, on 27 January, about putting in place better protection for vulnerable people. I have tabled these amendments having consideration to that debate.

    The amendments would restrict any staff member, manager or owner of a service registered by the Commission for Social Care Inspection from acting as a lasting power of attorney or a court-appointed deputy. I should add that the restriction applies only to paid staff. However, it will apply to all paid staff.

    The amendments have the support of CSCI. I understand that Dame Denise Platt raised the issue with the Minister. She certainly raised it personally with me and my colleagues. It also has the support of other bodies with an interest in these matters, such as Age Concern and Action on Elder Abuse, both of which organisations I am involved with. I believe that the amendments are necessary because, as your Lordships know, we have to clamp down on all potential avenues for abuse in care homes, and especially in domiciliary care services. We have heard about people who have been robbed by their care givers and, worse, about those who have perpetrated these crimes but have got away with it because they were registered as holders of enduring power of attorney or as deputies.

    The Registered Homes Act and subsequent legislation has helped to protect people who have had their savings taken by a person with power of attorney. I merely seek reassurance that those safeguards will not be watered down.

    By becoming a donee or a deputy, a registered manager, provider or their staff or relatives would gain wide-ranging powers, under Clause 12 and Schedule 2 to the Bill, over finances and property. However, these are precluded by the national minimum standards, and there are other potential loopholes. For example, although a person will have to declare whether he has a criminal record, how will the Public Guardianship Office know if he is on the POVA list? People on that list do not have a criminal record but are deemed unsuitable to work with vulnerable people. I should be grateful to know from the Minister how this loophole can be closed.

    We know that the risk of abuse is particularly great in domiciliary care services where abuse can go undetected for much longer from co-workers, family or friends. That is why the restriction on paid staff being an attorney or a deputy makes good sense. We must remember that while friendships may blossom between care staff and the people they look after, at the end of the day we are talking about the necessity of a professional relationship similar to that between teacher and child.

    I seek the Minister's reassurance that any relevant codes of practice and guidance issued because of the Bill will meet the national minimum standards and regulations. I hope that the Minister will look sympathetically on these amendments. If she cannot accept the wording that I have brought forward, I hope that she will bring forward her own amendments next week at Third Reading. I beg to move.

    My Lords, I rise to support my noble friend Lady Greengross. I do not want to speak to the amendment at length; my noble friend has made the arguments. I simply want to add that it is also a protection for people in care homes and in domiciliary care themselves.

    We have focused on those who rob, cheat and cause great distress to people in their care. We should remind ourselves that the majority of people in these services give superb, warm care. That is one of the reasons why we are often tempted to believe that they can fulfil these roles. We do not expect them only to give good, professional care; we expect them to give it with humanity and often with affection. At the same time, they are able to leave at any moment. This is their career and it is their job. They are not friends and relatives of those who are under their care.

    Therefore, I think that it is totally inappropriate that they take on the role of attorneys and deputies, for their own protection. I have had to intervene on two occasions and investigate situations where extremely able carers have been tempted because money was easily accessible when they were in difficulties. It ruined their careers and indeed their lives. I think that we also owe it to them to ensure that these temptations are not placed in their way. I therefore support the amendment.

    My Lords, in the absence of my noble friend Lady Barker, I rise to confirm our support for this amendment. I entirely agree with the noble Baroness, Lady Howarth, that of course most of the people involved in the caring profession as paid carers act totally honourably and properly, but I think that people in that category would not, as she said, think it appropriate to take office as an attorney. There is undoubtedly here a risk of abuse from people who abuse the considerable powers they have as attorneys. It would be undoubtedly right, and a necessary safeguard, to ensure that paid carers are not eligible to act as attorneys under a lasting power of attorney for the people for whom they care.

    My Lords, it is very difficult not to be persuaded by the arguments we have heard, not simply that this amendment is a safeguard, which it certainly is, but that it is also a matter of propriety. I hope that the noble Baroness will be sympathetic.

    My Lords, I completely understand the concerns that lie behind the amendment which the noble Baroness moved. Since Committee, we have had productive discussions with the Commission for Social Care Inspection, as I indicated I would. I do not want to rule out the people whom we are discussing completely because we know of a handful of exceptions where the member of staff in question is also related to the person lacking capacity. Therefore, that member of staff was the most appropriate person in these circumstances for a variety of reasons. Those people comprise a very tiny number but they exist. The difficulty with the amendment is that you might rule out such people completely. However, I agree absolutely that as a general rule such appointments should not be made. The code of practice will make that clear.

    As the noble Baroness indicated, the national minimum standards for care homes and for domiciliary care provide strong protection in that area and the standards and regulations for adult social care are currently being reviewed and the issue will be taken fully into account. The noble Baroness will also know that the POVA list was designed to ensure that people included in it were not recruited to work as care providers. To achieve precisely what she wants would require fundamental changes to that. We are also considering the recommendations of the Bichard inquiry. One of these proposes that new arrangements might consider these issues more fully. We shall pursue that to ensure that it is dealt with as best it can be. For example, those who work with children or vulnerable adults would be required to be registered. If that scheme is created, it will look at whether donees of lasting powers of attorney and deputies should be brought within it. I believe that would address the point in question.

    I do not disagree with the principle of the amendment but I do not want to make it absolute in the Bill. It will be in the code of practice and linked to the national minimum standards to ensure that we provide these safeguards. From our conversations with Denise Platt I believe that that strength of reassurance is precisely what she is looking for. On that basis, I hope that the noble Baroness will withdraw the amendment.

    3.15 p.m.

    My Lords, in view of the Minister's positive but slightly disappointing comments, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Clause 13 [ Revocation of lasting powers of attorney etc.]:

    moved Amendments Nos. 40 and 41:

    Page 8, line 16, after "severally" insert "in respect of any matter"
    Page 8, line 24, after first "power" insert "in respect of any matter"

    On Question, amendments agreed to.

    Clause 16 [ Powers to make decisions and appoint deputies: general]:

    moved Amendments Nos. 42 and 43:

    Page 9, line 39, leave out "section" and insert "sections 1 (the principles) and"
    Page 10, line 4, leave out from "powers" to end and insert "or impose on him such duties, as it thinks necessary or expedient for giving effect to, or otherwise in connection with,"

    On Question, amendments agreed to.

    Schedule 2 [ Property and affairs: supplementary provisions]:

    moved Amendment No. 44:

    Page 44, line 27, leave out paragraph 10 and insert—
    "10 (1) Any functions which P has as patron of a benefice may be discharged only by a person ("R") appointed by the court.
    (2) R must be an individual capable of appointment under section 8(1)(b) of the 1986 Measure (which provides for a individual able to make a declaration of communicant status, a clerk in Holy Orders, etc. to be appointed to discharge a registered patron's functions).
    (3) The 1986 Measure applies to R as it applies to an individual appointed by the registered patron of the benefice under section 8(1)(b) or (3) of that Measure to discharge his functions as patron.
    (4) "The 1986 Measure" means the Patronage (Benefices) Measure 1986 (No.3)."

    The noble Baroness said: My Lords, the noble Lord, Lord Goodhart, said that he was acting on behalf of his noble friend Lady Barker. I believe that when we discussed this issue previously, the opposite applied.

    This amendment concerns the Lord Chancellor's function to be exercised by the bishop of the diocese where there is a patron of a benefice and the issue of incapacity arises. The debate that we had in Committee was wide-ranging but the issue before us is quite a narrow one. It is not about the Church's existing patronage system; it is solely about those who can act on behalf of a patron who lacks capacity. Under the present legislation the Lord Chancellor's powers to act on behalf of a patron lacking capacity have a judicial quality. If the Constitutional Reform Bill is enacted, the Lord Chancellor will not be a judge and it would therefore be inadvisable to leave paragraph 10 of Schedule 2 in its current form. Therefore, the Government's amendment transfers the Lord Chancellor's function to a representative appointed by the Court of Protection. The court-appointed representative will have comparable powers to a representative who a registered patron can appoint when he has capacity.

    The representative will have to be an individual who is a communicant member of the Church of England or a church in communion with it or a clerk in holy orders. The representative will fulfil the patron's role not only in presenting a priest to a vacant benefice under the Patronage Benefices Measure 1986 but also in performing the other functions of a patron such as acting as a consultee when there is a proposal to suspend presentation under Section 67 of the Pastoral Measures Act 1983. In discharging his or her functions the representative will be subject to the provisions of the 1986 Measure in the same way that a registered patron would be.

    Government Amendments Nos. 120, 121 and 125 are minor and consequential amendments. Amendments Nos. 120 and 121 ensure that Clause 63 of the Bill can be used to deal with any difficulties which might arise in connection with specialised categories of patron. Amendment No. 125 clarifies the meaning of power of attorney in the Patronage Benefices Measure 1986 and provides for the court-appointed representative to send the information required under Section 9 of the 1986 Measure to the designated officer of the diocese instead of the incapacitated patron.

    These are good amendments which have been discussed fully with the Church of England and meet the needs of all those involved. I beg to move. Lord Goodhart: My Lords, I am very grateful to the Minister. I raised this matter originally in Committee on the ground that I felt that the Lord Chancellor's ecclesiastical patronage was, independently of anything that may happen under the Constitutional Reform Bill, something of an anomaly. It did not seem suitable to have any provision in this Bill that added to that patronage. I am fully persuaded that the version which the Government have come up with is preferable to my original suggestion that the patronage should rest in the bishop of the diocese. I am entirely happy with these proposals.

    My Lords, from the Bishops' Benches I express gratitude on behalf of the Church of England for the discussions that the Minister has had. This amendment seems to me eminently sensible.

    On Question, amendment agreed to.

    Clause 19 [ Appointment of deputies]:

    moved Amendment No. 45:

    Page 11, line 22, at end insert", or
    (c) jointly in respect of some matters and jointly and severally in respect of others"

    On Question, amendment agreed to.

    Clause 20 [ Restrictions on deputies]:

    moved Amendment No. 46:

    Page 12, line 22, leave out from "P" to end of line 25.

    The noble Baroness said: My Lords, as the noble Earl has already indicated, in Committee we undertook to bring forward an amendment removing the provision for a deputy to be given powers by the court to refuse consent to life-sustaining treatment in relation to the person lacking capacity.

    People were concerned—I share that concern—that a deputy who is not chosen by the person concerned—that is the critical difference so far as I am concerned—should have so significant a power.

    This amendment deletes Clause 20(6) and amends Clause 20(5) to provide, quite simply, that:
    "A deputy may not refuse consent to the carrying out or continuation of life-sustaining treatment in relation to P".
    I hope that this amendment addresses the concern that noble Lords raised and I commend it to the House. I beg to move.

    My Lords, this is an extremely important and welcome amendment and I thank the Government for bringing it forward.

    My Lords, I agree with the noble Earl, Lord Howe. This is an extremely welcome amendment and one that is in very good faith. I am grateful to the Minister for incorporating it on the face of the Bill.

    On Question, amendment agreed to.

    moved Amendments Nos. 47 and 48:

    Page 12, line 27, leave out "section" and insert "sections 1 (the principles) and"
    Page 12, line 43, at end insert—
    "( ) But a deputy does more than merely restrain P if he deprives P of his liberty within the meaning of Article 5(1) of the Human Rights Convention (whether or not the deputy is a public authority)."

    On Question, amendments agreed to.

    [ Amendment No. 49 not moved.]

    Clause 22 [ Powers of court in relation to validity of lasting powers of attorney]:

    moved Amendment No. 50:

    Page 13, line 17, after "whether" insert "one or more of"

    On Question, amendment agreed to.

    [ Amendments Nos. 51 to 53 not moved]

    Clause 23 [ Powers of court in relation to operation of lasting powers of attorney]:

    moved Amendment No. 54:

    Page 13, line 42, at end insert "or an instrument purporting to create one"

    On Question, amendment agreed to.

    Clause 25 [ Validity and applicability of advance decisions]:

    [ Amendment No. 55 not moved.]

    Clause 30 [ Research]:

    moved Amendment No. 56:

    Page 17, line 22, leave out "Secretary of State" and insert "appropriate authority"

    The noble Baroness said: My Lords, these are technical amendments. Noble Lords will be aware that matters relating to health are generally devolved to England and Wales. The amendments are designed to ensure that regulations and guidance relating to clauses on research can be made by the Secretary of State for Health in England and by the National Assembly for Wales. Clauses 30 to 33 make provision for intrusive research to be lawfully carried out, or in relation to a person who lacks capacity where the research is part of an approved research project, approved by an appropriate body and is carried out in accordance with the conditions set out in Clauses 32 and 33.

    Amendment No. 56 provides that the regulations specifying the appropriate body may be made by the appropriate authority instead of by the Secretary of State. Similarly, Amendment No. 61 provides that guidance setting out how a researcher must nominate an external person for consultation if no carer or similar person is available will be issued by the appropriate authority. Amendment No. 57 defines the appropriate authority as being the Secretary of State for Health in England and the National Assembly for Wales in Wales. I beg to move.

    On Question, amendment agreed to.

    moved Amendment No. 57:

    Page 17, line 30, at end insert—
    "(6) In this section, section 32 and section (Loss of capacity during research project), "appropriate authority" means—
  • (a) in relation to the carrying out of research in England, the Secretary of State, and
  • (b) in relation to the carrying out of research in Wales, the National Assembly for Wales."
  • On Question, amendment agreed to.

    Clause 31 [ Requirements for approval]:

    moved Amendment No. 58:

    Page 17, line 36, leave out subsection (2) and insert—
    "(2) The research must be connected with—
  • (a) an impairing condition affecting P, or
  • (b) its treatment.
  • (2A) "Impairing condition" means a condition which is (or may be) attributable to, or which causes or contributes to (or may cause or contribute to), the impairment of, or disturbance in the functioning of, the mind or brain."

    The noble Baroness said: My Lords, we are bringing the amendments forward in response to considerations that we had in Committee. I am grateful to the noble Earl, Lord Howe, and my noble friend Lord Turnberg, who proposed amendments in Committee intended to clarify one of the key requirements that a research ethics committee must be satisfied with before it approves a research project.

    I remind the House of the purpose of the clause and the effect of the amendments. Clause 31 contains the requirements that the appropriate body, which in most cases will be a research ethics committee, must consider before approving research. The researcher must satisfy the research ethics committee that the research relates to the condition the person without capacity has; there are reasonable grounds to believe that there is no alternative research involving only people who can consent; the potential benefit is not disproportionate to the risk; or that the research may benefit others and be of negligible risk and not unduly invasive or restrictive.

    Taking the first element, Clause 31(2) is intended to specify that the research must be relevant to the condition the person is in or to the condition—illness, impairment or trauma—that causes that person to lack capacity to consent to the research. We had an interesting debate in Committee, and the amendments brought forward there attempted to clarify how this might be applied to research into matters that were not directly connected to the main cause of the loss of capacity. My noble friend Lord Turnberg sought to address the possibility of research into the failure of bodily systems that might accompany a heart attack, or into the multiple injuries associated with a car accident that had led people to lose consciousness and therefore become incompetent.

    We listened carefully to the views put forward then and also those put forward by research organisations. We have already clarified the intention of this clause by an amendment in another place. To refine the concept in the way that we were invited to do has proved difficult, although we have done it: we have laid it out as best we can, and we have met the considerations. We intended to give effect to the Law Commission's recommendation that the research should be linked to a condition with which the person concerned is, or may be, affected.

    Amendment No. 58 requires that the research be connected with an "impairing condition" affecting the person without capacity, or its treatment. "Impairing condition" is defined as a condition that is or may be connected, or cause or contribute to, the impairment or disturbance in the functioning of the mind or the brain. The amendment does not significantly affect the practical impact of the research clauses, but rather clarifies their scope. The emphasis is now more clearly on the requirement that the research must be connected to an impairing condition that the person has. It concedes that the relationship between the impairing condition and the impairment of, or disturbance in, the functioning of the mind or brain is sometimes not perfectly understood. It makes it clearer that it may be valid to conduct properly designed research to see whether the condition and the impairment or the disturbance are linked.

    The amendment makes it clear that research, for example, to prevent kidney failure in a person in a coma following a car accident or heart attack, as raised by my noble friend, would be permissible if the other safeguards are met. The impairing condition would be the trauma or shock following the sudden crash or heart attack. The research ethics committee would have to be satisfied that there was a good case for believing that the research into kidney failure was connected to the impairing condition, or its treatment. That would be the task of the research group involved. The REC must also take into account all aspects of the requirement for approval in Clauses 31(2) to 31(5).

    Amendment No. 59 is on a different point, which further reflects our decisions on the recommendation made by the Joint Committee on Human Rights in its report of 24 January, which considers in turn the Government's response to the report of 1 November. The Joint Committee paid careful attention to the wording used in Clause 31(3), which requires the research ethics committee to have,
    "reasonable grounds for believing that the research would not be as effective if carried out only on … persons who have capacity".
    In January, the second report concluded in paragraph 4.60 that the use of the phrase "reasonable grounds for believing" was a departure from the international standard applied. It commended to us the approach used in Scotland in the Adults with Incapacity (Scotland) Act 2000, that research of a similar nature cannot be carried out on an adult who is capable in relation to the decision. It placed the emphasis on the word "cannot" because it felt that it was closer to the accepted international standard.

    We have taken the Joint Committee's comments to heart, although we do not entirely agree with its conclusions. Nevertheless, we have looked again at the wording of the biomedicine convention. We agree that it is possible to reformulate the requirement in Clause 31(3) in a way that makes that intention clear and comes closer to the view of the Joint Committee. The amendment replaces the former wording to the effect that the research would not be as effective. It now states that there must be reasonable grounds for believing that,
    "research of comparable effectiveness cannot be carried out if the project has to be confined to, or relate only to, persons who have capacity to consent".
    Noble Lords will agree that it is clearer and stronger in that respect. It is now very close to the wording of the biomedicine convention, which says in Article 17.1 that research of comparable effectiveness cannot be carried out on individuals capable of giving consent. I am pleased to say that we are following our international obligations there.

    Amendment No. 63 again was discussed in Committee. I am grateful to the noble Earl, Lord Howe, and the noble Lord, Lord Turnberg, for raising their concerns about the intention of the original wording. It affects what happens when people are to be enrolled in an approved research project. Clause 32 details the steps to be taken to inform and consult carers about whether the person without capacity should join a research project. As noble Lords will be aware, the rule is that a carer, or someone who is nominated under guidance to be consulted, be asked whether the person should begin the research. There is a group of cases that make it more difficult, and those are urgent cases in emergency situations such as trauma care, where it is important to give treatment in the first few minutes.

    Noble Lords will know that many research projects are ongoing in the UK, mostly in hospitals, comparing for example better ways of treating heart attacks or head injuries, or finding out what changes the body undergoes after severe infections such as meningitis. We need to find out better ways as research progresses. If the treatments and trials are to take place, we must realise that it is not practicable to undergo the full consultation process required for this type of research.

    We have accepted the recommendation in Committee that we should look again at the wording, and our amendment is along the lines that have been suggested. It widens the range of doctors to be consulted about research in an emergency, so that we do not arbitrarily exclude a doctor who is caring for the person already. We want to provide that the doctor who can be consulted may well be a consultant, surgeon or even a GP whose patient suffers a sudden cardiac arrest or goes into septic shock, for example.

    3.30 p.m.

    If the emergency happens in the community—outside the hospital—it is perfectly possible that a person's GP can be involved and give approval for research to be initiated by, for example, a paramedic attending the person at home. It is important to think that research in such a case may simply be the taking of a blood sample. As I hope is clear, those doctors are usually best placed to advise the researcher, as they are familiar with the patient's medical history. It is important to know that, including any complications. In some cases, they will have discussed the prospect of research with the patient themselves, and know their wishes and feelings.

    We have amended the subsection to make it clear that, whatever the doctor's relationship to the person who lacks capacity, the doctor must not be involved in the organisation or conduct of the research project. That was the second element with which noble Lords were concerned. We must avoid potential conflicts of interest where they may be seen as an incentive or other motive to enrol the person in the project, and we have made sure now that that cannot happen. The amendment would rule out a researcher consulting a doctor who might, for example, be organising the research within his or her hospital.

    As set out in Clause 31(6), the researcher, in seeking approval from the REC, would have to specify the arrangements for consulting with another doctor. The three amendments clarify and strengthen the Bill and the research arrangements. We are grateful to noble Lords who have enabled the debate and those changes to take place. On that basis, I hope that they will be able to accept our changes in the spirit in which they were made. I beg to move.

    My Lords, I am grateful to the Minister for putting in the amendments, which answer all the points raised in our earlier debate. She has explained clearly why they were so important to introduce. I certainly do not need to make the case again and am delighted that they are there.

    So far as Amendment No. 63 is concerned, it is clear that anyone directly involved in the research one way or another should not be the person who gives permission for that research. That is entirely rational and sensible. There is the case in which a doctor is also the carer of the patient and happens to be involved in the research. As I understand the amendment it suggests that, because he or she is involved in research, even though they are the doctor in charge of the care they will not be allowed to approve the research. That is entirely right. I commend the amendments.

    My Lords, I too thank the Minister very much for the amendments, which address the concerns that we raised in Committee.

    My Lords, in Committee, I too raised the issues and brought to noble Lords' attention the Joint Committee's recommendations, the biomedicine convention and conflicts of interest. The Government have gone a long way to addressing a number of those questions, and I am grateful to them for that. When the Minister introduced the amendment, she said that there were no significant discrepancies between our international obligations under the biomedicine convention and the requirements set out in the amendments. What differences exist? Is there something of any kind of significance of which we should be aware before we approve of what are very welcome amendments?

    My Lords, I have not got the biomedicine convention in front of me, but I quoted it, using "cannot". Rather than improvise, I will double-check and write to the noble Lord about it. I was also thinking of the words of the Joint Committee on "reasonable grounds for believing". In Committee, we felt that that was a high test rather than a dilution. Again, I put on record that we have kept that form of words, because they are an efficient and high test of probity.

    On Question, amendment agreed to.

    moved Amendment No. 59:

    Page 17, line 40, leave out from "that" to end of line 42 and insert "research of comparable effectiveness cannot be carried out if the project has to be confined to, or relate only to, persons who have capacity to consent to taking part in it"

    On Question, amendment agreed to.

    moved Amendment No. 60:

    Page 18, line 3, leave out "or" and insert "and"

    The noble Baroness said: My Lords, I hope that no one in the House or outside it regrets that we have spent many hours on these clauses. Never before has it been accepted in this country that it is right to have medical experimentation and research on mentally handicapped people without their permission. We are dealing with an extremely serious principle. The hours that have been spent on the matter have certainly not been wasted. I join others who have thanked the Government and the Minister for the changes that have already been made.

    Amendment No. 60 was tabled previously by the noble Baroness, Lady Chapman, but was not voted on. It is yet another attempt to ensure that mentally handicapped people get every protection that the Bill will allow. We failed earlier to ensure that research on a subject unable to give consent must be of a nature that should directly benefit the subject. I was sorry about that failure, but my regret does not prevent me still trying to protect a human being who cannot protect himself. Clause 31(4) speaks only of potential benefit, not benefit. It is certain that much of the upcoming research will not benefit the person on whom it is carried out. Let us at least make the tiny improvement that there will be two conditions of research in the subsection, not only one.

    I must voice some concern about the weight that noble Lords clearly put on the Council of Europe's biomedicine convention. I have some little experience of the Council of Europe, having served on it for 15 years. I am bound to remind the House that that body is not empowered to make law. We suffer badly enough in all conscience from having European legislation forced on us willy-nilly. I have noted some of the effects of the Council of Europe's judgments to be absurd. For instance, it was agreed that all patients who suffer any reversal in their medical condition—whether kidney failure, a stroke, a heart attack or anything of that nature—must be entitled to compensation when that reversal happens in hospital or under the care of a doctor. I found it appalling that that the principle of "no fault" compensation should be accepted. Although sensible arguments were made against that, the Council of Europe passed it. I hope that it is an edict that we will never accept in this House.

    I shall move on to Amendment No. 62, which is grouped with Amendment No. 60. I want to deal with the conditions that are set out in Clause 32. We learn that the person conducting research must find someone upon whom he can call to consult about the person on whom he intends to carry out the research. As the Bill acknowledges, he may well have a problem with that because it should be someone who is engaged in caring for the subject but it cannot be someone who is paid to do that caring.

    A large number of potential subjects for research under these clauses will be in homes. Sadly, many of them have no one to look after them except paid carers and no one who is really interested in their welfare. A whole generation of mentally handicapped people were, very sadly, horn to mothers who were perhaps over the age of 40, and we all know that that resulted in a large number of mentally handicapped people being born.

    I clearly remember being approached by a constituent who was desperately worried about what would happen to her son when she died. She had given her whole life to looking after that child—to her, and to me, he was still a child. She said, "I don't know what's going to happen to him". Of course, what does happen is that the care is extended and, if there is no one to look after the person in question, he is moved into a home or a place where paid carers will look after him. But those people cannot be consulted because they are paid.

    So Clause 32, rightly, makes provision for such a case by stating that the researcher, named in the Bill as R, must find someone who is prepared to be consulted—presumably for pay, although I do not know whether that is the case; we have never been told, but presumably it will be a paid job. That opens up other questions such as who will pay. Will it be R, his drug company or the hospital trust, or are we convinced that there are people who will do this difficult job? To do it properly will require time, thought and care. There may be such people—great numbers of them—who are prepared to do the job, but I am not altogether happy about that.

    Rightly, the consultee must not be someone connected with the research. But noble Lords should make no mistake that this new research ruling can, and probably will, make large profits for the drug companies. Therefore, the amendment states that we should ensure, as the Bill does not, that the consultee on whom the whole conduct of the research depends must have no connection with the researcher. The Bill states that he must have no connection with the research, and that is right and sensible, but it does not say that he cannot have a close connection with the researcher.

    Therefore, it seems to me that the researcher, in looking for someone to consult and give the green light to go ahead with the research, could nominate his wife, girlfriend, cousin, father, uncle or anyone, because there is no provision in the Bill that states specifically that the researcher must not have any connection with a person who is close to him.

    I raised this matter on 1 February 2005, when we had the third day of Committee on the Bill, but in the Minister's reply there was no mention of this point. I do not blame the Minister in the least because she had many points to answer. Since then, I have received letters from various Ministers but there has never been any indication that they have been able to consider the small amendment on this point.

    Repeatedly, Ministers have expressed concern that everything must be done to safeguard potential research subjects. Indeed, I pay tribute to the Government because they have given much thought and care to this point and to ensuring that a great deal of care is taken over this issue. But if this concern, which is widespread and has led to many changes in the Bill, is genuine, we must go this one step further. We must recognise that if the researcher can call upon someone with whom he has a close connection, that will be very partial advice, and that worries me.

    Therefore, I hope that the amendment will be considered sympathetically. It makes no attempt whatever to wreck the Bill, and I hope that it will not be described as such. That is far from the case. I am simply trying to give maximum protection to handicapped people, who will be in a very difficult position when the Bill is passed. I beg to move.

    3.45 p.m.

    My Lords, I want to express my disquiet that the noble Baroness, Lady Knight, persists in describing people with a learning disability as "mentally handicapped". That is now a discarded description. I am also concerned at her assumption that all 1.5 million people in this country with a learning disability do not have the mental capacity to make decisions for themselves. That is untrue and I feel that it should be placed on the record.

    My Lords, I assure the noble Lord that that has in no way ever been stated or believed by me. Undoubtedly we are dealing with a situation involving some people who are unable to make judgments for themselves. I have never suggested for a moment that all people with a mental handicap have no possibility of making any decision for themselves.

    My Lords, the noble Baroness will remember that she said that we spent a long time on this issue in Committee. She will also remember that the Joint Committee, which I chaired and of which she was a distinguished member, also spent a long time on this subject. Indeed, I am sure that the noble Baroness remembers that she proposed an amendment to the committee's report and she will also remember conversations that we had in which I explained to her exactly how to do so. The amendment was to the effect that people judged to be incapable of making, and unable to make, decisions for themselves should not be used in medical research experimentation. She will also recall that she was not able to convince the committee on that point.

    The conclusion that we reached in the committee was that the amendment as drafted would require the research to be of benefit to the person who was the subject of the research and also of general benefit to people with that condition. We took the view that the treatment being researched should be of benefit, and it was put to us by doctors who gave evidence to the committee that they would not carry out such research unless that was the case. That is the essential point.

    In considering whether the research would be of direct benefit to the person concerned, it is important to remember the conditions that we gave as examples. Research into some of the conditions would be of benefit to the person involved and other research would not. We mentioned investigating why people with Down's syndrome are at risk of contracting Alzheimer's disease, how best to treat the effects of acute brain injury, how to understand and manage problems such as self-injurious behaviour affecting people with autism, the causes of potentially debilitating mental illnesses, such as schizophrenia, and the best treatments for brain disorders, such as new variant CJD. I list those to show that, in some cases, research might be of benefit to the people involved but, in other cases, it would certainly not be.

    We took the view that when people lack the capacity to give consent, they should be involved in medical research only if it is either in their best interests, which is obviously of benefit, or—not "and", as the amendment states—if it is the only method of conducting research into their particular condition and everyone involved with them is satisfied that it is a non-exploitative proposal which will not harm or distress the individual involved. I believe the Bill reflects that view.

    Our conclusion was that a clause should be included in the Bill to enable strictly controlled medical research to explore the causes and consequences of mental incapacity and to develop effective treatment for such conditions. This clause must include rigorous protocols to protect incapacitated adults from being exploited or harmed. I think the Bill does just that.

    My Lords, perhaps I may follow the words of the noble Lord, Lord Carter, by illustrating two research projects in which I have been involved over the years and which would have been ruled out completely by Amendment No. 60. These were completely painless and non-invasive projects involving simple CAT scans and positron emission tomography scans of patients with Alzheimer's disease.

    The safeguards in the Bill are excellent. I have some sympathy with the wish of the noble Baroness, Lady Knight, to have the consultee quite removed from the researcher and I shall be interested to hear the response of the noble Baroness, Lady Andrew's, in that regard. The effect of Amendment No. 60 would be simply to rule out an enormous amount of valuable research. We would not have the benefit of carrying out simple, basic, non-invasive research; it would be ruled out completely by that one change of word.

    My Lords, I have added my name to Amendment No. 62, to which the noble Baroness, Lady Murphy, has just referred. I agree with her that the Government need to answer the points made by the noble Baroness, Lady Knight, in relation to that amendment.

    I know that the noble friend of the noble Baroness, Lady Andrews—she is just about to resume her place—reminded us at the Committee stage that she has a dislike of lists. However, we have the beginning of a list in Clause 32(3)(a) and (b), and it does not seem unreasonable to me to add a "(c)". The words have no connection of any kind with R and it is the kind of belt and braces provision that should be inserted into the Bill.

    The noble Baroness, Lady Knight, is right to remind the House that we are taking awesome decisions in a whole range of areas. This is the first time that the House—perhaps for commendable, but nevertheless controversial, reasons—has allowed subjects who have some kind of disability to be used for tests and trials that might advance medicine but, nevertheless, may not be with the consent of the person concerned. It is quite an important step change from that which we have allowed previously.

    Every generation has to guard against these matters. I was recently rereading the debates that occurred in 1913 in regard to a Bill introduced then—the noble Lord, Lord Rix, will be interested in this—which used the words "A Bill dealing with people's mental deficiencies". That Bill sought compulsorily to sterilise disabled people. A conference was called in London of people front all the different political traditions of the day—the noble Lord, Lord Patten, will be interested in this—and that conference was entitled the "Eugenics conference".

    It took the redoubtable Mr G.K. Chesterton and his ally, an independent Member of another place, Josiah Wedgwood, to ensure that that legislation was literally blown out of the water. Perhaps it was one of the few good things that happened in 1914, but the legislation went no further.

    We can see what has happened in the decades that followed. I shall not refer to events in Germany but in social democratic Sweden, between 1920 and 1970, more than 70,000 people were sterilised against their will. As the noble Baroness, Lady Knight, has rightly reminded us, we have to guard against such eventualities here.

    I commended the Government on the previous group of amendments because I believe that they have listened carefully to many of the issues raised by the noble Baroness. Today, and right the way back to the Joint Committee, she has been her usual assiduous self in ensuring that we do not dodge these questions. Ever since we first met in 1979 I have regarded the noble Baroness, Lady Knight, as a person to have on your side, especially if you are in a position where you are at some kind of risk or vulnerable. I say to the noble Lord, Lord Rix, that I know the stands he has taken, both here and in another place, on behalf of disabled people. I congratulate her on doing that. She always shows great tenacity.

    We have made a lot of progress in dealing with these issues during our considerations, but I should particularly like to hear the response of the noble Baroness, Lady Andrews, to Amendment No. 62, to which I have added my name. I believe that it is a reasonable request to add this belt and braces provision that the person who may be researched upon should have no connection at all with R.

    My Lords, I have several confessions to make. The first is that I have a daughter, aged 50, who is severely handicapped both physically and mentally. She cannot talk; she cannot walk. That is how I happened to become chairman of Mencap and—in spite of the presence of the noble Lord, Lord Rix—I understand that that body is still known, in short, as Mencap. Indeed, the best thing I ever did for Mencap was to get the noble Lord appointed as secretary-general.

    I gladly support Amendment No. 60, which has been moved by my noble friend Lady Knight, but I have serious doubts about the drafting of Clause 32. If I may say so, it is in the wrong way improved by the amendment of my noble friend.

    I was the only chairman since 1870 of an official committee to advise Parliament how Acts of Parliament should be drafted. At that time there was no question of using the method contained in the Bill of describing a person merely as "R". It is a very strange practice which has had odd results. In fact, the result that we find in Clause 32 is a very odd one indeed.

    I know that we are at Report stage—and I confess that I did not intervene at the Committee stage to put this rather fundamental suggestion forward—but we must make our legislation understandable, and therefore legible, to all the hundreds and millions of people in our society who will be bound by it—and they can only be bound by it if they can follow it easily.

    I know I am rather old, but I find it strange that Clause 32 starts by stating,
    "This section applies if a person"—
    and then a bracket is opened and in that bracket, in inverted commas, is the letter "R". It is not easy for people to understand, when the letter "R" appears again, exactly what its meaning and effect will be.

    I know it is rather late in our consideration of the Bill to make such a proposal but it is never too late to try to get a Bill right. I ask the Government to reconsider at Third Reading the use of the letter "P", which appears earlier in the Bill, and the use of the letter "R", which appears here. The people who have to obey the Bill will find it easier to do so without this kind of strange reference. One could go on, but I shall summarise my view. It is unfortunate, especially in a Bill that affects people who lack mental capacity, to have to find out whether these cross-references—merely capital letters—will be understood well enough to enable people to obey the law.

    4 p.m.

    My Lords, I am sure that the Minister has listened very carefully to what my noble friend Lord Renton said and will pay it due and proper attention. I agree, with respect—as I understand one says in legal circles—with what my noble friend has said.

    I want to make three points on the amendments in the name of my noble friend Lady Knight of Collingtree. First, Amendment No. 60 concerns research. I like research. It is good to have research and very often good research is research that fails because it shows that something is not happening. I can see why people wish to have the ability to conduct research and I do not dissent from that at all.

    However, I agree with my noble friend in her first amendment, that replacing the word "or" with "and" in the relevant subsection has a double benefit. It gives a double protection in the interests of patients. In the end, I am much more interested in the human being and the patient than I am in research. That is why I support the amendment. We also have to guard against the unimaginable happening, which is another reason why I support the amendment.

    My noble friend Lord Alton spoke about the Eugenics Society before the First World War. I did not know about that, as he explained it to the House. One never knows how some of these provisions will be used somewhere down the line. I prefer caution where one is dealing with the rights of individuals who suffer from severe personal difficulties, whether mental or physical.

    Secondly, addressing Amendment No. 62, I fully support the insertion of the additional words in the relevant subsection. I would be interested to hear what the Minister has to say about the medico-ethical considerations in relation to the ability of someone to conduct such research to be prepared, as the subsection says, to,
    "nominate a person who—
    (a) is prepared to be consulted by R"—

    I hope my noble friend Lord Renton will forgive me for using that word— "but
    (b) has no connection with the project",
    without the additional provision of,
    "(c) has no connection of any kind with R".
    That leads to some difficult issues. I do not want there to be any suggestion that I am criticising the Minister, but this is a very important point and I do not believe that saying this needs to be considered by this or that medical body and that there should be a code of practice fulfils the need that is met very succinctly and accurately by the amendment tabled by my noble friend Lady Knight of Collingtree.

    Thirdly, the noble Baroness mentioned that many hours had been spent on this kind of issue. I do not believe that my noble friend has any reason to be apologetic to the House. I have to report to the House a disquieting leak from the Whips' Office in another place. How another place conducts its business is not a matter for this place. Indeed, it is a surprise to me to hear through this leak that the other place is allowing only one hour for the final consideration of this Bill in another place.

    Setting aside the fact that leaks like that should not occur from a well conducted Whips' Office—I am sure it would not have happened, under any circumstances, under the benign reign of the noble Lord, Lord Carter—I do not believe that anyone in your Lordships' House should be at all ashamed or apologetic for wishing to look at the issues in full before they return to another place, which will be starved of a second more than 60 minutes when considering the Bill.

    My Lords, as the noble Lord has mentioned me, I would say: "If only I had had the chance". If "or" were replaced by "and" in subsection (4), how would research into Alzheimer's disease be conducted? Does he also agree that his fears about eugenics and so on are dealt with in Section 31(5)(b)(ii) which prohibits research that is "unduly invasive or restrictive"?

    My Lords, it should be possible to conduct research, but I would always put the interests of patients first in the legal framework surrounding such research. That is why I would wish to see the research that is being carried out into Alzheimer's disease also being intended to provide knowledge for the causes and treatment for the care of persons affected by the same or a similar condition. The noble Lord and I probably take a slightly different view on that.

    My Lords, I would like to clear up a point with the noble Lord, Lord Patten, and with my noble friend Lord Alton. Of course, I am aware of the eugenics movement and I am aware that 70,000 people were sterilised in Sweden. My noble friend Lord Alton failed to mention that, at the same time, 75,000 people were sterilised in North America. Is sterilisation seen as research? In my view it is not research: it is sterilisation for social reasons to make it easier for those caring for the woman—generally it is a woman; men are never sterilised—as she is not seen fit to bear babies. I would not consider that truthfully to be research; I would consider that to have been inflicted on those women to make life easier for their carers and the world at large in a social context.

    My Lords, I am not sure how we were diverted into eugenics and sterilisation. For all the reasons mentioned by the noble Lord, Lord Rix, I do not believe that is entirely relevant to these two amendments. I admit to some sympathy with both of the amendments tabled by the noble Baroness, Lady Knight. The words in Amendment No. 62,

    "has no connection of any kind with R",
    sound not unreasonable. I am not sure that that form of words is necessary, nor am I convinced that,
    "has no connection with the project",
    is not sufficient. However, it is sufficiently important to think about and I am interested to know how the Minister will respond to that, because the principle behind what she has said is not unreasonable.

    I have some difficulty with regard to Amendment No. 60. I am keen to see "or" rather than "and" because I do not think that all research must necessarily be of potential benefit to P. But the second part of paragraph (a) says,
    "without imposing on P a burden that is disproportionate to the potential benefit".
    That is an important element. It should never, whether or not it is a benefit to an individual, impose on P a burden that is disproportionate. So in that case the "and" should be there.

    It may be that that element of paragraph (a) is covered elsewhere. I do not know; I quickly read through this. However, I think that,
    "without imposing on P a burden that is disproportionate to the potential benefit to P",
    should be an "and" rather than an "or". Although the,
    "have the potential to benefit P",
    should be an "or". So the provision may need splitting up.

    My Lords, I do not think that the noble Lord, Lord Patten, answered the question posed by the noble Lord, Lord Carter, about Alzheimer's, which is a crucial example. It may be that it is absolutely vital to conduct research on Alzheimer's disease with a body of Alzheimer's patients, but that there would be no immediate benefit for the Alzheimer's sufferer who is taking part in that research.

    If the amendment is agreed to, it would be difficult to see how one could conduct any research on a disease such as Alzheimer's. As I understand the matter, that was the thrust of the example given by the noble Lord, Lord Carter. The noble Lord, Lord Patten, answered it the other way around, but not the way around that I put it.

    My Lords, we have had a wide-ranging debate, as we did in Committee, on the ethics and principles of research and how it fits into the Bill, particularly with the concerns raised by the noble Baroness, Lady Knight.

    As the noble Lord, Lord Alton, said, the noble Baroness has been assiduous. I wish she were on our side. In fact, I am sure that we are both on the same side on the fundamentals.

    I want to start where the noble Baroness started. I think she said, "Never before have we accepted that we can have research on mentally handicapped people". Leaving aside the language, I want to say—and we have said this in some of the correspondence we have had with her—that this is the first time in law that we have attempted to create a clear and proper legal framework around research, as it involves people with mental incapacity. It is a very important and positive step.

    If we look back over the past 15 years, the Joint Scrutiny Committee and the Law Commission years ago noted, complained about and called-for improvements to the lack of clarity around research. Traditionally, research has been done under the Medical Research Council guidelines since 1991. We have moved to change and improve that. We did that first in 2004 with the important clinical trials regulations on drug regimes and so on. Now we have done it in relation to research in general. So I know that the whole House welcomes this proper and legal framework.

    I am sorry that we do not have the provision as right as we should. I am sure we should have consulted the noble Lord, Lord Renton. By using "P" and "R", we have tried to attempt, perhaps in an over simplistic way, to make the Bill easier to read. Clearly, we do not have that quite right.

    The second thing I want to say to the noble Baroness, Lady Knight, is about the Council of Europe. I respect her wide experience on European affairs. The Council of Europe is a very well respected forum to debate consensus of an ethical nature and draft conventions, such as the biomedicine convention. When we sign up, they are binding, inasmuch as any member of state who signs and ratifies a convention must ensure that national laws comply with it. So these are very much in our national interests and in our structures.

    I turn to the amendments. I shall restate the purpose of Clause 31 before I deal with the amendment. The purpose of Clause 31 is to define what kind of research can be approved involving people who lack capacity to consent. Subsection (4) states that the research must meet one of two requirements: it must have the potential to benefit the subject of research without imposing a burden that is disproportionate to the benefit—I am grateful to my noble friend Lord Turnberg for emphasising that point; it is extremely important; or it must intend to provide knowledge relevant to the causes, treatment or care of people affected by the same or similar condition.

    The amendment would tie the two requirements together in a way that research would be allowed only if it was intended to benefit the patient. It would limit the types of research that could be carried out to that which is not only of benefit, but also to that which is easily demonstrable as being of benefit. It would effectively make impossible research that might indirectly benefit that person or that might benefit other people who have the same condition now or in the future.

    So, with respect to the noble Baroness, these are not tiny improvements; they are a significant straitjacket around research in ways that I shall explain in a little more detail. In Committee, we had the debate prompted by the noble Baroness, Lady Chapman. What I said then and what is important is that research is surrounded by strict safeguards. First, it must entail negligible risk. Secondly, anything done must not significantly interfere with the person's freedom or privacy. Thirdly, it must not be unduly invasive or restrictive. There is then the requirement to consult with the incapacitated person's carer or a nominated person. Then there is the assessment about whether that research itself may be burdensome. That means assessing the level of discomfort and so on. I shall also return to that.

    4.15 p.m.

    I understand the concerns behind the amendment. The Bill strikes the right balance between the concern of the noble Baroness that those involved are properly and fully protected, and yet that vital research can flourish, so that people with those conditions in five or 10 years' time will be better off, with better care and prospects.

    I want to make two points about research. They have been made very well—better than I could—by noble Lords already. Part of the argument revolves around the concept of research designed to generate new knowledge. That is what we call fundamental research. It is the source of research that is furthest away from direct application. The noble Lord, Lord Patten, will know from his experience in the Department of Education how important fundamental research is to all innovation across all sciences. Without it, we make no progress. It is our evidence base for all our science and medicine. The whole point is that we cannot guarantee where and how those benefits occur.

    The amendments effectively make research that may indirectly benefit that person or others impossible. We have heard the example of Alzheimer's disease. The noble Baroness will not be thanked if, for example, as a result of the amendment, in 50 years' time we are using the same treatments and technologies to treat heart disease and any forms of brain injury, trauma or stroke, that we are using now. We fully anticipate that our research organisations will be able to take us forward to things that are presently unimaginable. We have learnt more about the brain in the past five years than we have in the past 500 years. We do not want to stop such beneficial research; I am sure that the noble Baroness does not either. Likewise with genetics. Think of the progress that has been made in genetics in the past few years—our understanding, prediction and treatment of family-based disease. We must be very careful about what we are doing.

    Our second problem about tying the provision to direct benefits concerns the methodology of research. With the best will in the world, research is now governed—for our safety as consumers—in a way that is rarely able directly to benefit those with the particular condition. New knowledge takes time to be evaluated. It must be safely reviewed by peer review systems, replicated by and compared with other findings and validated. It is only when we have gone through that exhaustive and often international process that we can say what treatment is safe. The lead times vary, of course. In health or social care, we may progress from fundamental research into a new treatment or care pathway in a matter of two or three years. In other forms of research, it may take us a great deal longer.

    We have tried not just to surround the process with safeguards as I have described but to reflect that there are rights here to be respected. We, and many others, believe that it is important for people who lack capacity to have the opportunity to contribute, not least as citizens. The Council of Europe Biomedicine Convention states:
    "Were such research to be banned altogether, progress in the battles to maintain and improve health and to combat diseases only afflicting children, mentally disabled persons or persons suffering from dementia would become impossible".
    The group of people concerned may in the end benefit from this kind of research. When we drew up the Bill, we listened to the advice of the Joint Scrutiny Committee and to the Making Decisions Alliance, which also said that such people should have the right to participate.

    I have already referred to the hierarchy of safeguards. There are the safeguards for the people themselves, which mean that they must be listened to and respected if they show any sign of distress, objection or simply not being interested in taking part. The second line of safeguard is the consultative level, both in inviting people to take part and in taking care of them while they are involved in the research project. Thirdly, at organisational level, the whole project, from its inception to conclusion, is validated by a research ethics committee, which keeps the project, its processes and its methodology under constant review, ensuring that the consultation is constantly valid.

    On a later amendment, when we will talk about the relationship between the individual and science in society, we will have an extra safeguard to offer. Not only would the amendment not help those who have a right to be involved and who will be able to benefit indirectly, if not immediately, but also we do not want to prejudice the future of research and the benefit of people with a disability.

    In Amendment No. 62 the noble Baroness has raised another very important point. We have considered in detail the issue of who is consulted about a person's involvement. Clause 32 deals with the arrangements for seeking agreement for people to take part in a research study once it has been approved. The Bill rightly sets out the importance of consulting those best placed to comment on the likely wishes and views of the person who lacks capacity.

    The first thing that a researcher must do is take steps to identify someone who cares for the person and is willing to be consulted. If that is not possible, the researcher must nominate someone else to act as a consultee. The noble Baroness has tried to ensure that that person is not connected to the research project or the researcher. I shall try to reassure the noble Baroness on that point. I hesitate to say that the amendment is not necessary; rather, her concerns are covered by the Bill. Clause 32(3) states that the person consulted must have,
    "no connection with the project".
    We are sure that that could be very widely interpreted. It would certainly include someone involved with, or connected to, either the study itself or a member of the research team. It would also cover wider connections, such as someone with a direct link to funding decisions for the study, for example, or who was involved with the research ethics committee.

    I am adding to the examples that have already been given. But although the wording is already wide enough to capture these cases, we will in any case spell out in the Secretary of State's guidance, which is foreseen in Clause 32(3), the range of connections that we mean. We will make it clear that that includes a connection to the researcher. Of course we will consult on that, as we will on the guidance as a whole. We will also make it clear that we expect researchers, if in doubt, to err on the side of caution in interpreting the clause—that will be clear to the research ethics committee, too. It is not always possible to spell out in advance, or to anticipate, the sort of issues and incidents that might arise. That is why we must leave ourselves some room to be able to respond and to make judgments based on individual decisions.

    For people who have no immediate or obvious person to help them—we have used the term "unbefriended"—we intend to ensure that healthcare providers that host clinical research make arrangements, through the chief executive, to identify a panel of people who could be available to act as a nominated legal representative as relevant to the trials being undertaken in the organisation.

    That will obviously be of huge benefit. Only a very small number of people would have neither someone whom they knew nor someone who could come from another source to help and advise them through the process. Where there is nobody, and we have to set up such a panel, we will certainly look at the training for the requirements of the role. We will also monitor the performance of that body to ensure that it operates to the highest standards. It is possible that the clinical ethics committee could take on that role.

    A range of individuals employed by an NHS trust or another healthcare organisation could potentially fulfil the role of a legal representative, such as other clinical staff not connected with a trial, social workers or non-executive members of the trust board. That is probably as much detail as I can provide at the moment about the ways in which we are approaching that problem.

    In conclusion, Amendment No. 62 proposed by the noble Baroness would cause major problems. Her suggested wording would be practically impossible to interpret. Would working in the same hospital or living in the same street, for example, count as a connection of any kind? It would take us into realms of association that are very difficult to cover and to anticipate. I think that the noble Baroness would accept that point. But I hope—

    My Lords, I am grateful to the noble Baroness for giving way. In the spirit of trying to be helpful, perhaps a form of words saying "unknown" or "not known" to the person could be used.

    My Lords, I am no parliamentary draftsman, but I can see that that might have exactly the same, if not more, difficulties than the words "of any kind". It is as long as a piece of string. Obviously, in legislation we want to be as clear and as tight as possible.

    My Lords, surely, if one is not known, one is not known. Lengths of string do not come into the argument.

    My Lords, perhaps I may conclude what I was going to say. As it is constructed, the noble Baroness's amendment causes major problems. I hope that what I have said about the nature of the definitions in terms of not being connected, and the protections that we will offer for people who are bereft of friends or connections, will satisfy the noble Baroness that we have addressed her concerns in respect of Amendments Nos. 60 and 62 and that she will feel able to withdraw the amendment.

    My Lords, before the noble Baroness sits down, would she be so good as to tell us whether there is any hope, in Clause 32, of elimination of the expression "R", which replaces very few words, and, in earlier clauses, the expression "P"?

    My Lords, there was something that I forgot to say to the noble Lord. We take the point that he makes. The best that we can do is ensure that those terms are fully and properly explained in the code of practice and the guidance that is offered.

    My Lords, it is obviously a matter for great regret that every amendment I put forward is causing huge trouble and would cause even worse if it was in the Bill. Because of what has been said, I stress that I am in no way against research. I want it to go on and to ensure that it does go on.

    I must apologise to my noble friend Lord Renton for offending him by adopting the language of the Bill, which I believe is too late to change now.

    My Lords, that is a comfort. But, obviously, I have deeply upset the noble Lord, Lord Rix, for which I am sorry. I do not try to upset anyone. I am just trying to give—as I understand Ministers want—as much protection as possible to people who may be used, under those three clauses, for research. 1 have listened very carefully; I have particularly taken on board the comments made by the noble Lord, Lord Turnberg, and others, about Amendment No. 60. I am grateful to the noble Baroness for what she said. I think she heralded that some assurance would be put in at some point to cover my worries. The noble Lord, Lord Carter, mentioned not once the amendment that I was trying to move; that is, the researcher must not pick someone who has anything to do with him or her. That was all I was trying to achieve with the amendment. I did not want to elongate the debate.

    However, in the light of the noble Baroness's assurance that this point will be covered at least to some extent by inserting an amendment at a later stage, I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Clause 32 [Consulting carers etc.]:

    4.30 p.m.

    moved Amendment No. 61:

    Page 18, line 26, leave out "Secretary of State" and insert "appropriate authority"

    On Question, amendment agreed to.

    [Amendment No. 62 not moved.]

    moved Amendment No. 63:

    Page 19, line 13, leave out "concerned in P's treatment or care" and insert "involved in the organisation or conduct of the research project"

    On Question, amendment agreed to.

    Clause 33 [Additional safeguards]:

    moved Amendment No. 64:

    Page 19, line 25, leave out from "he" to ", or" in line 26 and insert "appears to object (whether by showing signs of resistance or otherwise) except where what is being done is intended to protect him from harm or to reduce or prevent pain or discomfort"

    The noble Baroness said: My Lords, these government amendments have once again been tabled in response to arguments put to us in this House. Amendments Nos. 64, 65 and 66 further strengthen the protections around Clause 33 and make it crystal clear that it is the person without capacity who comes first.

    Amendment No. 64 is needed to make sure that in respecting any signs of resistance from the person, it is clear that the person's greater health needs must come first. I will come later to Amendment No. 65, which is based on principles that stem from the World Medical Association's Declaration of Helsinki on medical research. It adds a new requirement that the interests of the person must be assumed to outweigh those of science and society. Amendment No. 66 makes it clear that any withdrawal from research does not require beneficial treatment to be halted.

    All these amendments are further backed up by government Amendments Nos. 97 and 99 which specifically name researchers as having a duty to have regard to the code of practice. This brings them into line with others named in the Bill. In all, this is a comprehensive package of amendments that reiterates the importance we attach to protecting people who lack capacity.

    Turning to the individual amendments, Amendment No. 64 highlights the important issue of how to balance respecting a person's wishes against protecting them from harm. Let me just remind noble Lords that Clause 33 includes the safeguard that if a person objects to something, their objection must be respected. It is very important to make it clear that this amendment is absolutely not intended to and will not weaken that safeguard.

    However, in our debate in Committee led by the noble Baroness, Lady Barker, speaking on behalf of the noble Baroness, Lady Finlay, attention was drawn to the issue of preventing harm to patients in very specific circumstances. For example, a patient might make an action, even a reflex movement, as natural as flinching or pulling away before a needle is put in his arm. The way the clause is currently drafted could be interpreted as meaning simply that a researcher could not even act to steady the person's arm. That could lead to a much more harmful effect on the patient, or it could even be interpreted more extensively as meaning that research could not be continued at all in such a situation. That, too, is something we cannot contemplate.

    Our concern here is that the clause could be interpreted as encouraging researchers to discard standard safety measures simply because a person without capacity objects to them. That is not our intention.

    For the first time, therefore, the clause puts a positive duty on researchers to respect signs of resistance while recognising the fact that a person's greater health needs must come first, and therefore a researcher's duty to protect the patient must come first. That will mean taking an action intended to minimise pain or discomfort.

    The amendment highlights a researcher's duty of care and fits well with the broader requirement in Amendment No. 65, that the interests of the person must be assumed to outweigh those of science and society. I am sorry that the noble Lord, Lord Alton, is not in his place because he has championed this issue at each stage of the Bill. In introducing these amendments we are putting beyond doubt the fact that the interests of the person come first.

    The noble Lord has repeatedly stressed the importance of adopting language from widely respected international declarations such as the World Medical Association's Declaration of Helsinki. Not only have we put this in the Bill, we also intend to use the code of practice to explain it in more detail. Although it was not possible to accept the noble Lord's precise amendment because it would have introduced an impossibly broad duty of care that would have been unworkable, we are happy to adopt its spirit.

    Amendment No. 65 therefore adds the important principle of ethical research to the Bill. It adds to the safeguards already provided in Clause 33 a new requirement that the interests of the person must be assumed to outweigh those of science and society. I am confident that the general duty set out in Section 5 of the 2002 edition of the Declaration of Helsinki will be supported by researchers as the pre-existing principle of ethical research, and which is now enshrined in the Bill. So that is a very positive response, not only to the noble Lord, but also to the Joint Scrutiny Committee, which also recommended that we use the declaration as the framework for the Bill.

    Amendment No. 66 would extend the safeguards in Clause 32(6) so that a researcher would not have to stop any treatment if he felt that doing so would create a significant risk to a person's health in cases where the person asked or indicated that he or she no longer wanted to be a part of research. I am grateful to the noble Earl, Lord Howe, and the noble Lord, Lord Kingsland, for proposing the amendment in Committee. We were sympathetic to what they were trying to achieve.

    The Bill already contains such a safeguard for cases where a carer objects to a person's involvement. Clause 32(6), for example, allows a researcher to continue treatment in such cases if withdrawal would be detrimental to the person's health. However, as I said in Committee, it makes no sense to have that safeguard for situations where a carer objects to the research, but not the person. Government Amendment No. 66 rectifies the imbalance. In all such situations, the needs of the person come first, and the person can of course be withdrawn from the research project—and not have data recorded about him, for example—but he can continue to receive the treatment.

    I turn finally to Amendments Nos. 97 and 99. Again, I am grateful to the noble Earl, Lord Howe, for proposing an amendment that would add research to the list of subjects to be covered by the code of practice. The draft code contains a chapter on research, and the final version will undoubtedly do so. It is an extremely important chapter. It will set out more fully than the Bill can do the detail of when research should or should not be undertaken, and all of the safeguards that will be in place to protect the person lacking capacity.

    We have gone a little further than the noble Earl, Lord Howe, suggested in his amendments. We have also placed a duty on researchers to have regard to the code. It is only right that researchers should be in the same position as the independent mental capacity advocates, attorneys, deputies and others in a position of trust.

    People acting in a professional capacity or for remuneration are already caught by Clause 40(4). That will usually apply also to researchers, but it is safest to spell it out, as it might not always be clear.

    I hope that noble Lords will feel that we have responded as well as we might to the points that were raised in Committee. The amendments strengthen the Bill and extend the protections offered to patients involved. It is to the credit of noble Lords that we have responded to their suggestions in the way that we have. I beg to move.

    My Lords, I welcome all the amendments in this group, but particularly Amendments Nos. 66, 97 and 99, which were prompted by concerns that I raised in Committee. I thank the Government for tabling the amendments.

    My Lords, those who originally proposed the amendments and the Government are both to be commended, because many people who have had anxieties about this part of the Bill will be reassured by the resounding clarity of the statement that the interests of the person must be assumed to outweigh those of science and society. That will send a real signal of reassurance to many people.

    On Question, amendment agreed to.

    moved Amendments Nos. 65 and 66:

    Page 19, line 31, at end insert—
    "( ) The interests of the person must be assumed to outweigh those of science and society."
    Page 19, line 37, at end insert—
    "(5) But neither subsection (3) nor subsection (4) requires treatment that P has been receiving as part of the project to be discontinued if R has reasonable grounds for believing that there would be a significant risk to P's health if it were discontinued."

    On Question, amendments agreed to.

    moved Amendment No. 67:

    After Clause 33, insert the following new clause—

    (1) This section applies where a person ("P")—
  • (a) has consented to take part in a research protect begun before the commencement of section 30, but
  • (b) before the conclusion of the project, loses capacity to consent to continue to take part in it.
  • (2) The appropriate authority may by regulations provide that, despite P's loss of capacity, research of a prescribed kind may be carried out on, or in relat