Mental Capacity Bill (Hansard, 27 January 2005)
HL Deb 27 January 2005 vol 668 cc1443-512

House again in Committee.

Clause 10 [Appointment of donees]:

[Amendment No. 51 had been withdrawn from the Marshalled List.]

Baroness Barker moved Amendment No. 52: Page 5, line 39, at end insert— ( ) If an individual who is bankrupt is appointed and registered as a welfare attorney, and a care decision involves a cost to the donor, it shall be a duty on the public body proposing or arranging such care to arrange the involvement of an independent consultee under sections 34 to 39 of this Act. ( ) An individual whose name is registered on a list under section 81 of the Care Standards Act 2000 (c. 14) (duty of Secretary of State to keep list) shall not be appointed as a donee of a lasting power of attorney unless the donor has had an opportunity to ascertain whether the proposed donee is included in such a list.

The noble Baroness said: I feel particularly strongly that we should consider Amendment No. 52 at some length. The architecture of the Bill makes a clear and express difference between welfare LPAs and financial LPAs. This is a distinct change from the current system of enduring powers of attorney. In some ways, it is a welcome distinction. In the life of somebody who lacks capacity there are usually two main areas of concern. Very often they will be quite distinct and separate.

However, it occurred to me when reading the Bill a few days ago that while there is a certain elegance to that distinction, it does not sufficiently reflect real life. The noble Baroness, Lady Andrews, is, like me and the noble Earl, Lord Howe, a veteran of many debates in your Lordships' House on charging for care services. Increasingly, care services will have to be paid for.

Therefore, it is difficult to see how one can draw such an arbitrary distinction between welfare and financial decisions. I quite understand—and I appreciate that in drawing up the Bill the Government have said that one may wish a member of one's family or a close relative—somebody one trusts—to be the person to make decisions about one's welfare. However, it is not inconceivable that a bankrupt person could be registered as the welfare attorney and could be called upon to make a care decision but would have a clear financial interest in it.

I take the obvious example of the child of an elderly parent who may become involved in a decision about which care home the parent goes into. If that person was likely to be a beneficiary of the parent's will, probably in the not too distant future, that would be a classic conflict of interest—a matter we talked about before the House resumed. Therefore, we contend with this amendment that a bankrupt should not be the key person making decisions about care matters which have such an overt financial consideration.

I took to heart some of the points made by the noble Baroness, Lady Howarth, before lunch. These may not be big decisions involving considerable sums of money for residential care. They may be much smaller, involving, for example, domiciliary care, although the costs of domiciliary care are not inconsiderable these days. That is the principle motivation for tabling Amendment No. 52. The amendment has the support of a number of the organisations in the Making Decisions Alliance.

During the afternoon, as we work our way through the amendments like the good anoraks that we are, we shall go over a whole range of matters in which different bodies will be exercising decisions about welfare and decisions which will have cost implications. For example, when we reach court-appointed deputies, we may be talking about local authorities. They are providers of care which charge for care, and which may, as a deputy, have a charge over an incapacitated person's affairs.

ResCare—the organisation which represents carers of people with very severe learning difficulties—made one point very strongly to the Joint Committee. It cited quite clear cases where welfare decisions had been made by authorities solely on the basis of costs and not on the best interests of the individual. So, I am opening up the first front on an issue which we shall consider from a number of different aspects.

Amendments Nos. 59 and 60 relate to conflict of interest issues that we spoke about this morning but in a slightly different way. I beg to move.

Earl Howe

I should like to support the noble Baroness in all that she said in relation to Amendment No. 52, and to speak in a little more detail on the other two amendments grouped with it.

Amendment No. 59 is designed to deal with situations where the donee of a lasting power of attorney is found to have been placed on the POVA register at a date later than the date on which the LPA was created. That issue needs to be looked at carefully because it is by no means far-fetched.

Given that donees can make important, if not vital, decisions about the finances and the welfare of some of our most vulnerable citizens, there should be checks that the donee is a suitable person. The Making Decisions Alliance considers that a person who is naming an attorney to take decisions on his behalf should be able to do so with the full information that he needs. An opportunity for him to check the POVA register, if he so wished, would enable a donor to make an informed decision. As the donor has capacity, it is his decision whether he still wishes to choose a donee on such a register.

The Bill should provide for a situation where the donee is placed on the POVA register at a later date and the donor who has now lost capacity is not in a position to be aware of this change in the situation. In instances such as that, the Bill should allow for the appointment to be revoked. In another place, the Government made clear that they were considering whether LPAs and deputies should fall under the scope of the POVA register and I hope that the noble Baroness can throw some further light on that today.

3 p.m.

Baroness Andrews

I am grateful to noble Lords for explaining the purpose of their amendments. This group revisits some of our debates earlier today; it also anticipates some that we will have later when we consider conflict of interest, and so on. Essentially, the amendments are designed to ensure that people who lose capacity have the best possible protection. We completely agree and sympathise with that intention. It is imperative that those who may be very vulnerable should not be exposed to further vulnerability and should not be abused in any way. Of course we share those concerns.

However, before I address the amendments, I should say that there is a fine line to be trodden here between protecting vulnerable people and allowing them to make their own independent choices, as long as and as far as they can. The whole point of an LPA—its attractiveness—is that the person chooses someone who they believe they can trust. That decision should be respected, unless their behaviour gives rise to real concern. Again, we return to the issue of balance.

The noble Earl and the noble Baroness revisited some issues addressed by my noble friend. I hope that she was able to put some concerns at rest earlier concerning the POVA register and bankruptcy by putting them in context. I cannot add much to what my noble friend said about the POVA list, although I take the noble Earl's point about the dynamic, changing nature of situations.

I can add only that we have explained why the POVA list cannot be checked by the Public Guardian, by definition, because it was designed to ensure that people included on it are not recruited to work as care providers. That sits firmly within everything that we tried to do under the Care Standards Act 2000. That is, therefore, way beyond the scope of the Bill. However, as my noble friend said, we will consider an amendment to require attorneys to state that they are not on the POVA list. As my noble friend explained, David Lammy stated in another place that we are also considering whether the Government should introduce new arrangements to protect the vulnerable. We have heard what the noble Earl said and the instances that he has brought to our attention and will consider them.

On Amendment No. 52, on which the noble Baroness focused, we are grateful that she is working with the distinction and new provision that we are making for a welfare attorney. I think that that will be very positive. Although someone who is bankrupt cannot act as the attorney of a financial LPA, the Bill does not prevent him from acting as a welfare attorney. The amendment is intended to deal with the situation where the attorney of a welfare LPA who is bankrupt needs to make a decision about the care of the person lacking capacity. The noble Baroness is attempting to reduce the possibility of a wrong decision being made for the wrong reason. We heard earlier from the noble Baroness, Lady Greengross, who is not in her place, the example of choosing to put someone in a cheaper residential home. She also raised issues about charging for services. Another complication is that the attorney may hope to inherit the donor's estate. The amendment suggests that an independent consultee be involved in such situations. I very much appreciate the concerns that have been raised.

Let me first address the instance of the independent consultee. Our main problem with the amendment is that we intend that the service provided by the independent consultee will be for major, life-changing situations where help, support and advocacy will be very important for people lacking capacity. That is what the Bill requires where the person lacking capacity has no family or friends—to use the bleak phrase, the unbefriended. As the noble Baroness knows, we have said that we will consult on situations additional to those set out in Clause 35 to 37 when an independent consultee should be involved. I do not want to prejudge that consultation, which I am sure will be very positive, but it is highly unlikely that we would want to involve an independent consultee when an attorney is already acting or for routine situations in the life of the person involved.

To think about the wider picture, when they have capacity, people will appoint only attorneys whom they trust to act in their best interest. We must think in commonsense terms. We must trust people's common sense not to appoint someone whom they suspect may be more interested in a future inheritance than their best interest. After all, we have some years of experience of enduring powers of attorney. Well established processes have been set up and there is no major evidence of abuse or non-functioning.

Also, we cannot legislate to make people good; but we can legislate to make the protection as robust as we can. When it comes to matters such as decisions whether to place people in inappropriate residential homes that are cheaper than they deserve or need, we must remember that the principle of the Bill is that an attorney must act in the person's best interests. If they fail to do so, if they propose to act in a way contrary to the person's best interest, the court can revoke the power.

The Bill should reduce the opportunity for such decisions to be made. We are confident that it will. I do not need to tell the noble Baroness about the conditions of residential care. People buy it, whether they are self-funding or are paid for by the local authority. If the person also appoints a welfare attorney, the finance and welfare attorneys will need to work together to agree on the residential care placement, considering the welfare and financial needs. As the noble Baroness said, sometimes it is difficult to separate those out. That joint approach will help to ensure that a person's best interests are respected.

We also have the Care Standards Act 2000, whereby the care home will accept a person only if it is an appropriate placement. You cannot simply dump an elderly relative in a care home if it is inappropriate. The Care Standards Act must be observed and the care must be appropriate. So there is a second order of protection. In any case, the Public Guardian will be working with other health and social care agencies. If he learns of any abuse—he may learn about it from other members of the family, the care worker, a neighbour, a friend, someone in the local church, or whatever—by an attorney in any way, he will investigate it.

If we are making such a strong case for the importance of an LPA and someone agreeing to act as an attorney, the donor might find it rather strange if a third party—the independent consultee—could at some point be called in to question the attorney's decisions. They might think that there was little point in appointing someone to make decisions for them if that person could be countermanded in some way.

Finally, it is extremely unlikely that someone who lacks capacity but has a reasonable income and capital—we will debate that a little later—will not have appointed a financial LPA or have required a financial deputy. A health and welfare deputy cannot make financial decisions themselves.

Therefore, given the balance that the Bill is intended to achieve the protections that are offered to deal with abuse and our argument about the independent consultee, I hope that the noble Baroness feels that she can withdraw the amendment.

Baroness Barker

I thank the noble Baroness for her customary full and considered response. I do not think that she will be surprised when I say that she has not fully answered the points that I made. Sometimes in my professional life, I talk to groups of pensioners. I am always amazed at the number who have not made a will. Half of the group say, "It's all right. My kids will sort it out". The other half say, "Oh no. You get your will sorted".

We are now in similar territory, which is why the route down which I am going is perhaps unfortunate. It is often strange to watch the way in which people behave when money is involved and how their actions and perceptions change. I am not trying to do down carers—possibly with financial difficulties—in any way. My proposal might be welcomed by people who are appointed as attorneys and find themselves having their judgments questioned, which are perhaps for very good welfare decisions. Some people may be happier in residential homes that cost a lot less just because they are near to and will see people they like.

I do not buy the argument given by the noble Baroness that people are deterred from becoming attorneys or from making lasting powers if they think that a third party will be involved. In that case, why will they have to be registered? It is fairly inevitable that they will be subject to some kind of scrutiny.

The noble Baroness is right to point out that whether this works properly rests a lot on the Office of the Public Guardian, but the sum total of her answer does not add up to the protection that I would like to see in place. I shall certainly consider what the noble Baroness said, but I may return to this issue. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 agreed to.

Clause 11 [Lasting powers of attorney: restrictions]:

[Amendments Nos. 53 to 55 not moved.]

Earl Howe moved Amendment No. 56: Page 7, line 3, leave out from "treatment," to "and" in line 4.

The noble Earl said: In speaking to Amendment No. 56, I shall speak also to Amendments Nos. 74 and 75. In those amendments, I want to open up an issue that is of very considerable importance and concern to many people; that is, whether third parties should be able to make life-and-death decisions about an individual.

Clause 11(7) makes clear that a lasting power of attorney may include an authority to give or refuse consent to life-sustaining treatment, provided that the deed contains an express provision to that effect. While I know that that provision has met with widespread acceptance—I recognise all of the reasons why that is so—it is also fair to acknowledge that there are many who view it with disquiet.

The Bill is clear that a donee, and a deputy, has a legal right of veto in the event that life-sustaining treatment is proposed for an incapacitated person. That, I suggest, is an awesome responsibility, whoever the individual is. We need to make 100 per cent certain that it is appropriate. If we look around us, we can quite easily identify grounds for doubt based on human rights considerations. Article 2(1) of the European Convention states: Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law". That is fairly categorical.

The Joint Committee looked at that part of the convention. It 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 think that we all understand and accept the point about a person's express wishes, but that is not the same thing, it seems to me, as a person's wishes as interpreted by a third party; namely, an attorney. All that an attorney can ever hope to do is to arrive at a judgment as to what he believes are the patient's best interests. That judgment is only that—a judgment. However honest and conscientious the decision is, it is not on a par with the express wishes of the patient, nor can it be. So although the Joint Committee came to the conclusion that Article 2 of the ECHR is not infringed by this part of the Bill, I venture to suggest that its conclusion may have been somewhat borderline. I should be interested to hear form the noble Lord, Lord Carter, whether that was so.

I have no problem with the idea that an attorney should be consulted by the treating doctor and that the patient's wishes, as expressed by the attorney, should carry weight in the decision that the doctor eventually reaches. Where I hesitate quite strongly is over a right of veto being conferred on someone who may have no medical qualifications and whose degree of authority in second-guessing a medical practitioner may therefore be highly questionable.

Turning to court deputies, the position of the Government is roughly this, if I do not misrepresent them. They argue that these powers could be useful in situations when, for example, someone needs a series of decisions to be made about a course of treatment and there are distressing and perhaps lengthy disputes between a doctor and the patient's family. Ministers have also pointed to the provision in Clause 20(6), which states that the authority granted to a deputy by the court to take decisions in this area is an express authority that it may confer, only if it is satisfied that the circumstances are exceptional". With great respect to the Government, it is possible to look at that situation from the other end of the telescope. It seems that one could just as cogently argue that where one has a full-blown dispute between doctors and members of a family about whether or not to continue life-sustaining treatment, only a decision of the court can properly resolve it. Many would argue that only the court has the necessary impartiality and objectivity required for a decision of that gravity.

For the court to appoint a deputy to make those decisions on its behalf makes very little sense to me. I say that because in appointing the deputy the court would in any case have to consider the circumstances of the case. So it would be no greater burden for it to make a declaration about whether treatment should or should not be provided.

But, even setting that thought aside, there are other potential complications. The court might appoint one of the people involved in the dispute to make the necessary decision—either a family member or even, perhaps, the doctor. You do not have to have much imagination to realise what scope that would afford to exacerbate the dispute, whichever way the matter eventually turned out.

A court decision attempts to balance and resolve differing viewpoints and to arrive at a considered conclusion. There is no telling whether a court deputy would be able to mirror that process or take a decision that all parties would be able to accept. It is an invidious thing to impose on the shoulders of any individual.

I quite strongly believe that however conscientious a deputy is, there is and will always be the worry that he or she may not succeed in taking the informed and dispassionate view of the matter which a court must necessarily take. It is for those reasons that we need to look at those provisions again. I beg to move.

3.15 p.m.

Lord Carter

I have added my name to Amendment No. 74 precisely for the reason just outlined by the noble Earl, Lord Howe. In fact, the discussions and subsequent recommendation of the Joint Committee were not borderline.

A number of witnesses were dismayed that deputies' powers would extend to refusing consent to the carrying out or continuation of medical treatment. We handed in a minute from the Foundation for People with Learning Disabilities. On an earlier amendment, noble Lords will recall that I mentioned recently published research about the reduced life expectancy of people with learning disabilities. The thought is there—I put it no stronger than that—that subliminally, in taking decisions about a course of treatment, the withdrawal of treatment or other medical intervention for people with learning disabilities, the person taking the decision could be affected by the fact that the patient had a learning disability.

I shall quote from the evidence submitted by the foundation: if deputies can make a decision regarding withdrawal of treatment, the decisions need to go to court and be very, very seriously considered. I think the withdrawal of nutrition and hydration is a very painful experience and that if people choose to in their advance directive that is one thing, but to assume that for someone who does not have the capacity undermines their right to life". We also heard interesting evidence from the Catholic Union: it is highly likely that such an appointee will be some official such as the chief Social Worker for the area concerned. Thus the chief Social Worker for the area is likely to be making decisions about the provision of treatment (or even sustenance by tube) to the patient, and thus perhaps making decisions about whether that patient should continue to live or not, even though that social worker is not medically qualified and has no medical duty of care. That is clearly a matter for considerable concern". Those representations led to the committee making the following recommendation: We strongly urge that the provisions allowing deputies to consent to treatment be restricted to exclude the withdrawal or refusal of life-sustaining treatment. Unless there is a valid LPA or advance decision expressing the individual's wishes in relation to the subject, decisions relating to the carrying out or continuation of life-sustaining treatment should be referred to the Court of Protection for determination". In the first part of the Government's response, we were quite hopeful: While the Bill already states that deputies would be given powers that are as limited in scope and duration as possible, we understand the reasoning behind this recommendation. Giving a deputy the authority to refuse consent to the provision or continuance of life-sustaining treatment on behalf of a person who lacks capacity is very significant, and we understand the concerns that people have". Then I am afraid we have the Welsh for "but" However, the Government is not persuaded that a blanket exclusion of the power to refuse treatment is necessary". They go on to set out the reasons, which were referred to by the noble Earl, Lord Howe. But it was not made clear in the example they gave whether there might be a series of decisions about a course of treatment. If there is a course of treatment, I imagine that none the less a single decision must be made at the beginning of that course to allow it to be carried out. If a different treatment has to be considered, then I am sure that you would have to go back to the court.

This is an area of real concern. Members of the Joint Committee thought about it very seriously, which is why we made our recommendation. The Government should think again on this because there is real general concern that deputies will be taking decisions for which they are not qualified. It would be better to leave them to the court.

Lastly, I mention another example the Government cited as an argument against the provision. They said that there could be, distressing and lengthy disputes between doctor and family". That is exactly what the court is for. The parties can go to the court and have the dispute resolved. It is an argument in favour of reference to the court, not against.

I was pleased to add my name to Amendment No. 74 and I look forward to learning why the Government, in their response to the recommendation of the Joint Committee, gave an extremely fair wind in the first part of their response and then changed their mind.

Lord Alton of Liverpool

My Amendment No. 80, dealing with the issue of second opinions, is grouped with these amendments. Before speaking to it, however, I should like to add my voice to that of the noble Lord, Lord Carter, in support of the arguments that have been so persuasively and eloquently put by the noble Earl. It will be dangerous for the person with incapacity unless we do something along the lines suggested in these amendments.

I also think that it is invidious to the deputy, for the reasons adumbrated today. I am concerned that we will be trumping the medics with people who, as the noble Earl, pointed out, are not medically qualified. It would put social workers in an invidious position. We need to tread very carefully in this area and I hope that Amendments Nos. 56, 74 and 75 will commend themselves to the Government.

I am grateful to my noble friends Lady Finlay of Llandaff and Lady Masham of Ilton for their support of my Amendment No. 80. The amendment is divided into five subsections which I shall detail after a brief general introduction to this proposed new clause.

The amendment seeks to introduce additional safeguards around proxy decision making, whether the decision is being made by an attorney appointed in a lasting power of attorney or by a deputy appointed by the Court of Protection. The most important feature of this amendment is that it requires the medical practitioner to obtain a second opinion in the event of a dispute between himself and the attorney or deputy.

I have good grounds for arguing in favour of this proposition because of the experience that we have already had in Scotland. That is another jurisdiction, but nevertheless it is one that is familiar to us all. Clause 50 of the Adults with Incapacity (Scotland) Act 2000 provides that where there is a dispute between the doctor and the attorney or deputy, an application can be made to the court by the doctor for a second medical opinion to be provided. I should like to ask the Government why the Scottish position has not been adopted in the Mental Capacity Bill. I raised this question with the Minister when we met recently to discuss the provisions of the Bill. The good practice that has been experienced in Scotland is something that we should consider as we come to assess how to proceed with our own legislation. Requiring a second opinion in the event of disputes would provide an important safeguard against inappropriate decisions being taken by either doctors or attorneys and deputies.

Subsection (2) of Amendment No. 80 would allow any person interested in the personal welfare of a person to appeal a decision about his medical treatment to the court. I agree with the noble Lord, Lord Carter, about being able to continue to do that in all individual circumstances where disputes arise. Subsection (2) would apply even where there is no dispute between the medical practitioner and the attorney or deputy.

Subsection (3) would apply in the event of a dispute between the medical practitioner and the attorney or deputy. It requires the medical practitioner to ask the Secretary of State to nominate another medical practitioner to provide a second opinion.

Subsection (4) would apply in the event of the nominated medical practitioner certifying that the treatment can go ahead. In those circumstances, the medical practitioner primarily responsible for the medical treatment of the person may provide that treatment, notwithstanding any disagreement with the attorney or deputy.

Finally, subsection (5) would apply where, having sought and obtained a second medical opinion, the medical practitioner primarily responsible for the medical treatment of the person disagrees with that opinion. In those circumstances, he or indeed any person having an interest in the personal welfare of the person may apply to the court for a determination whether the proposed treatment should be given.

The amendment would provide an important mechanism for resolving disputes between medical professionals and proxy decision makers. It would, it is hoped, obviate the need for expensive and time-consuming litigation. I hope that the Government will reflect carefully on the principles that underline the amendment so that, even if the technical details need to be altered, they will consider incorporating something along these lines—dealing with the practice as we have seen it working in Scotland.

3.30 p.m.

Baroness Finlay of Llandaff

I do not wish to repeat the detailed points that have been made so eloquently by those noble Lords who have already spoken, but I think that this is a very important principle in terms of the way decisions are taken. These complex decisions are being taken every day up and down the UK. This is not a rare event. The way these amendments are set out would provide a pathway to deal with taking decisions when disagreement or complexity surround them.

The second opinion referred to in Amendment No. 80 is not "a" second opinion. By having a list of nominated persons, one envisages that these will be people who have had specific additional training in the complexities of medical ethics and end-of-life decision-making. They will be people whose decision-making processes are, first, informed by higher specialist training; and, secondly, the decision-making process can be audited so that the way in which they function as nominated second opinions can be monitored over time. The courts would then become a default position as a last resort.

However, it is to be hoped that the second opinion coming in would be able to untangle the medically inappropriate or negligent decisions and help both parties—the person advocating the treatment and the person saying that it should not be occurring—to see the situation from both sides. Often one of the important roles of a second opinion is to bring about a reconciliation of conflicting views.

In working through the amendments, I notice that one phrase is not used—that is, "care plans". I wonder whether there is a need for a mechanism—probably in the code of practice rather than on the face of the Bill—whereby in the dispute process there is an obligation to revisit the care plan frequently. As the noble Lord, Lord Carter, said, while a decision is being made as to whether or not to instigate something, the clinical situation can change and new decisions arise as to what else you do as part of the treatment, or what you do not do, depending on how the course of treatment and the monitoring processes are going.

So what may at first sight appear to be a single decision could turn into a cascade of decisions—and it is with a cascade of decisions in particular that the second opinion could be useful. Such decisions could be brought back and kept within the frame, and could push the revisiting of care plans. As I said previously, I am a little concerned that we have been looking at these decisions as though they are single, isolated decisions, which I honestly believe they are not.

However imperfectly these amendments are currently worded, and whatever difficulties the suggestions we are putting forward now may pose, I hope the Minister will consider the importance of formulating a pathway for resolution before having to go to the courts. I hope she will establish a default mechanism—which perhaps mirrors the one proposed in Amendment No. 11, which was tabled previously by the noble Lord, Lord Alton, and I—that, when in doubt, a default position towards life is safer than a default position towards death.

Baroness Masham of Ilton

Many disabled people have come to the House of Lords and said that there need to be more safeguards in the Bill. These amendments highlight that. I have attached my name to Amendment No. 80.

One shudders when one thinks of Shipman. He has gone now, but only yesterday another person—this time a completely bogus doctor—appeared. He was a taxi driver who ran a clinic. He conned his so-called colleague doctors and he conned his patients. That shows how these things can happen—and they can happen when working with professional people. The man is now in prison for 10 years, I think, but it shows how important it is to have a second opinion.

The Minister will need to look at the matter very seriously if we are going to help the many disabled people who are now very fearful. I support the amendments.

Baroness Warnock

I am attracted to the notion introduced by my noble friend Lady Finlay of the care plan that can be revisited from time to time. This is essential and defines the function of the second opinion. But would the care plan have been drawn up first, not only by the doctors but in the light of an advance directive if there were one?

Lord Carter

I wish to make one further point. I am sure that when the Minister replies she will draw our attention to Clause 20(6), which states: The court may exercise its power under subsection (5) only if it is satisfied that the circumstances are exceptional". It would be extremely helpful if she could give examples of what are exceptional circumstances and perhaps an idea of their frequency.

Baroness Ashton of Upholland

I am grateful to all noble Lords who have spoken for setting out the complex and extremely important issues that underlie the amendments. I shall not enter into an argument about whether the amendments are technically correct or incorrect because I know that their purpose at this stage is to tease out discussion about the issues.

Let me start with Amendments Nos. 74 and 75, which concern the question of the court-appointed deputy. As my noble friend Lord Carter said, the Government were very keen and welcomed the vast majority of the committee's recommendations, but they concluded at that stage that there may be a handful of circumstances where the court might decide that it would be in the person's best interests to give a deputy the power to give or refuse consent to life-sustaining treatment.

However, to save the time of the Committee, I have reviewed that decision and I can give an assurance that I intend to bring forward an amendment at Report stage to remove the ability of the court to give a deputy that power. For all the reasons stated, I believe that that is the right thing to do. I pay tribute to the Committee. In other words, I am stopping before the "but" in terms of what my noble friend said. I will discuss with the noble Lords who brought forward the amendments the exact wording. I see the sense of it being for the court to decide for all the reasons that have been given.

As to Amendment No. 56, I start—not surprisingly from all that I have said during the passage of the Bill—in a different place. Although at first sight this might appear to be a similar issue, there is a crucial difference—that is, that the attorney is acting because the donor wishes him to do so. In other words—if we personalise these matters and deal with real people—I might decide that I want to give my husband or my child the power to act on my behalf in accordance with Clause ll(7)(a) and make an express provision. In those circumstances, we believe that that is right and proper. In this context, it is very important that we make a distinction between that situation and a deputy who is an unknown individual.

We know that attorneys will generally be, for all the best possible reasons, family members or friends. We know, too, that when people know that they have a particular condition or, as we all are, they are getting older, they will take comfort in the fact that a loved one will take the decision rather than a complete stranger, however wonderful the doctor may be. In a sense, the noble Baroness, Lady Masham, made my case in her description of what can happen when professional doctors perhaps do not always act in the best interests. I am not for one minute suggesting that as a negative reason but because I believe it is right for individuals to have the right to say "When I am not capable of taking a decision I wish to give it to you".

It also concerns giving consent to treatment as well as refusal. As the noble Baroness, Lady Finlay, has rightly reminded us on many occasions, we are not dealing with a single moment or a single treatment but with a set of treatments depending on what is happening to the individual. It could be a course of antibiotics or many other treatments. We are saying that it is right that the attorney appointed by the individual makes those decisions in the right way.

The theme of the Bill is that attorneys have to act in the best interests of the person.

I am sorry, I am being corrected. I should have said that I am going to stop deputies refusing treatment; we do not mind if people give consent to treatment. I am sorry if I did not make that clear, but that is what the noble Lord wanted.

We want to make sure that that is the case. We have made it very clear that if a doctor has any doubt about the attorney's attitude towards making decisions, he can continue to treat while seeking clarification from the court. In other words, even if I give my husband, through an express provision, the right to make a decision to consent to or to refuse treatment that, in the context of my situation, would be considered life-sustaining, if a medical professional felt that he was not acting in my best interests, a doctor could treat and go to the court for clarification. In many senses, that is where Amendment No. 80 comes in. The noble Lord, Lord Alton, and the noble Baroness, Lady Finlay, have plotted the journey. Members of the Committee will not be surprised to hear that I will resist putting that in the Bill, not least because I do not want to undermine what I have said about attorneys, because they are very important, and about that specific provision.

It is important that the voice of the stakeholders is heard. The Alzheimer's Disease Society supports very strongly the provision to allow attorneys to make treatment decisions. It sees that as a safeguard that an attorney can ensure that life-sustaining treatment continues to be given where a doctor may suggest that it is withdrawn. It is a two-way street.

I hope that what I have said about deputies and the amendment I will bring forward has given some comfort to noble Lords. But I hope that the distinction I have drawn between deputies and attorneys is understood and that we are very clear it is the individual who gives that power to somebody. If members of the medical professional feel that that power is being used wrongly and the person is being abused, they can treat and go to the court. That is very important.

Lord Alton of Liverpool

Before the Minister leaves that point, I specifically asked her about the experience in Scotland. Amendment No. 80 is based on the Scottish legislation. Why did the Government reach different conclusions from those of their Scottish counterparts? Have we weighed the evidence and experience in Scotland in proceeding in the direction that the Minister has outlined?

Baroness Ashton of Upholland

Indeed, I was going to come on to that point. I thought that I was becoming more eloquent rather than winding down. That is a fallacy on my part.

There is no reason to suggest that what the noble Lord says about Scotland would not work in practice. However, we do not agree with the principle behind the amendment because we think it is important to respect the power that an individual gives to an attorney. We want to ensure that that is how the Bill works.

More generally, we are looking very carefully at the experience in Scotland; some of our proposals are born of its experiences, both good and bad. Elements of how the system works in Scotland are different. One of the principal reasons why we have not simply followed the Scottish example is the difference in common law. The noble Lord knows that some issues addressed in the Bill were not necessary to address in Scotland because they did not have that legal basis. In part, we are moving from the common law to statute in areas of law that are already well founded.

I think the noble Baroness, Lady Finlay, would agree from her own experience that this is a team effort. The relative or friend who has power of attorney will be working with a team of professionals because a series of decisions needs to be taken and because these issues need very careful thought.

We are very clear that second opinions are available. We have talked about these issues to the medical bodies, including the BMA and the GMC. There are well recognised ways in which second opinions are sought. We have not sought to second-guess medical opinion or, indeed, clinical practice. I have no doubt that second opinions would be sought by those who had power of attorney and were concerned about the medical practitioner or by the medical practitioner concerned about the way in which the attorney was operating. That is not on the face of the Bill, because it is good medical practice. However, we are very clear that the court overrides the chosen attorney.

We expect there to be a dialogue; we expect people to work through this; and we expect them to understand that life-sustaining treatment is not an event but a series of potential different events. The attorney, as a loved one—a person given that power by the individual—has to act in his best interests. But if there is a dispute, everybody's role is clear. One can seek second opinions, the doctor can continue to treat and only the court can override the attorney, not somebody with a slightly different opinion. I think that that is the best protection we can give. In Scotland, the end result is the court, so in a sense this is not about practice but principles.

On Amendment No. 80, the noble Baronesses, Lady Finlay and Lady Warnock, were absolutely right about care plans. In most situations, one would expect that people have a care plan, and good clinical practice suggests it. I suggest that it should be worked out now with relatives and friends—those involved in the care of the individual. That gives greater certainty about who is acting on whose behalf and that decisions are taken as a team. I do not want to move away from that position, and although I understand what lies behind the issues raised in this group of amendments, I want an attorney to be given the power by the individual—by me to my husband, by any noble Lord to his child or best friend—and play his proper and appropriate part. I want to be clear that members of the medical profession have a duty of care and the right to override a particular decision without fear of litigation if they are concerned about why the attorney has taken that decision and that the court will do its job in determining the truth and making the final decision. That is where we are.

I think that there is nothing between us on this; we are merely negotiating about what needs to be in the Bill and how we set it out. Given what I have said about taking away the right of deputies to refuse treatment, for all the good reasons that have been put forward, I hope that noble Lords will support the Government in this process and the noble Earl will feel able to withdraw the amendment.

3.45 p.m.

Baroness Finlay of Llandaff

I appreciate greatly the Minister's reply. We are all travelling in the same direction and want the same outcomes. Could we take this opportunity to revisit the draft code of practice and make sure that the guidance is strong enough? Second opinions should be given by not just anyone but by someone who has specific training at a higher level and can demonstrate it. Such people should keep a log of the number of times they are asked to provide a second opinion, and care plans should be formally audited over time so that a degree of experience builds up within the profession that drives up the standard. One of the great opportunities of this Bill is that we can encapsulate good practice and, in time, drive up the standard right across the board.

Baroness Masham of Ilton

I should like to add something to my noble friend's comments about care plans. They should be kept up to date. I have just been doing my husband's care plan, and it gets out of date very quickly.

Baroness Ashton of Upholland

I have no difficulty with revisiting the code of practice. I simply fear that we might be straying into what the BMA and GMC do. I agree completely about the need to keep care plans updated, to make sure that one has the right professional knowledge and that a body of knowledge is built up, and that we have the highest possible standards. Those factors do not all fall within what I am able to achieve in the code of practice, but they fall within what the Government are able to do in their discussions with the BMA and GMC. On that basis, I am more than happy to look at the code of practice again.

Lord Carter

This is the second time the Government have accepted a recommendation of the Joint Committee, which they did not do at the time. I am extremely grateful and will now see how many more agreements I can get.

Baroness Ashton of Upholland

That is always a danger when I do anything.

Earl Howe

This has been a very gratifying debate, with some notable contributions from all quarters of the Committee. I am particularly grateful to the Minister for having taken the initiative to look at the power of court deputies. I am immensely appreciative of the obvious thought that she has devoted to this issue and believe that the Bill will be better for that decision.

It remains for us to consider whether we should go a little further and bring back on Report the ability of an attorney to take life-and-death decisions. I understand all that the Minister has said in this context. As a generality, we want the Bill to empower individuals. I recognise that anything which dilutes that sense of empowerment is, a priori, something that we should hesitate to adopt. But I ask myself whether it is right for Parliament to bestow a power of such gravity on anyone. It is an awesome responsibility to have to take a decision on behalf of someone in a life or death situation. The circumstances in which the power may be used cannot usually be foreseen by the donor. In most cases, one could imagine that there would be little problem where a doctor recommends withholding or withdrawal of treatment, but are we really saying that where a doctor recommends continuing treatment, an attorney would have the power to veto that?

The Minister indicated that there were contingency provisions that would enable the court to look at the whole situation, but I will need to reflect on this issue. I am not detracting in any way from the force of the arguments that the Minister presented, which I recognise is considerable, but the matter is not as clear-cut as she made out. There is considerable disquiet among a number of people that the Bill contains these provisions. It is useful to have had these exchanges and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 57 not moved.]

Clause 11 agreed to.

Clause 12 agreed to.

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

[Amendments Nos. 58 to 60 not moved.]

Clause 13 agreed to.

Clauses 14 and 15 agreed to.

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

Earl Howe moved Amendment No. 61: Page 9, line 24, at end insert— (c) P's claims for and payments of state benefits administered by the relevant authorities

The noble Earl said: In moving this amendment, I shall speak also to Amendments Nos. 68 and 69. With these amendments we move to a completely different subject. The aim of these amendments is to ensure that individuals who rely solely on state benefits for their income are included within the provisions of the Bill. There are approximately 300,000 people who lack capacity and have appointees appointed by the Secretary of State for Work and Pensions.

It is difficult to argue that all the safeguards that apply in this Bill should not apply equally to those who receive only benefit income. It makes no sense to have a separate system of appointeeship for the Department for Work and Pensions. Current appointees are the equivalent of deputies and so by rights should be covered by the equivalent safeguards. In many cases, the Court of Protection would merely need to make a single order rather than appoint the person as a deputy, but that approach would bring that person within the ambit of the Bill and would resolve the current confusion about when an appointee and a deputy are needed. The single order could stipulate who should be responsible for the claims to benefits and clarify that the person is responsible for all aspects of the claim and if there are overpayments. Safeguards could be incorporated into the single order in the same way as they are currently for those given responsibility under short orders.

The amendments would provide greater protection to the person lacking capacity who is not able to choose their appointee—he or she is chosen for them. Furthermore, there are no rights of appeal against that decision. The appointee is not monitored by the Department for Work and Pensions and there are frequent examples of the appointee not using the benefits in the best interests of the mentally incapacitated person and it being difficult to get the appointeeship revoked. If there were concerns about the actions of a person in relation to state benefits, the court could take the steps necessary to revoke the order.

If the Minister has the word "resist" in her brief, I hope that she will take a step backwards from that exhortation and take stock of what I have said because there are all sorts of practical benefits that could ensue from making the changes that I have suggested. I beg to move.

Baroness Barker

I strongly support the statements made by the noble Earl, Lord Howe. It is wholly wrong that appointeeship should not fall within the ambit of this Bill.

I want to ask the noble Baroness, Lady Andrews, why the DWP has not included appointeeships in the Bill and why it is content to see a completely separate system running in parallel. There are several concerns that I have become aware of from colleagues who work in the information, advice and advocacy services, not least of which is that appointeeship is not routinely monitored. It is only revoked when concerns have been raised by people, which can take quite a long time. For many of the people about whom we are talking, whose only source of income is benefits, there is a distinction. Whereas an attorney is chosen—we have heard much today about the importance of the fact that an attorney is chosen by an individual—appointees are not. Appointees, as their name implies, are appointed, so a significant safeguard is missing.

The other concern for some of us is that, although we have spoken at length today about concerns such as the POVA list—I know that we cannot use it under this Bill, but we did mention it—to the best of my knowledge there are no such restrictions on people appointed by the DWP. In fact there are few restrictions in social security legislation. When she comes to "resist" the amendment with the force of the DWP, I hope that the Minister will address those points.

Baroness Andrews

I am always open to temptation but this is one instance where I will have to resist. I hope that I can do so with some understanding of the problem and give noble Lords who have spoken some comfort about aspects of the existing situation.

The group of amendments taken together would allow a deputy to be appointed to administer any state benefits paid to someone lacking capacity and those benefits might include a state pension, income support or disability living allowance. We must consider—and I say this in particular to the noble Earl, Lord Howe, who spoke most eloquently about the need to solve problems in the system—what is the most appropriate system in the circumstances. We must have adequate but not disproportionately excessive safeguards.

A financial deputy who is appointed as a deputy for property and affairs could, if appropriate, administer benefits, so it is not that benefits are excluded. Certainly, someone who has that responsibility can deal with benefits as well. Currently receivers appointed by the Court of Protection can do so, and deputies will have the same powers. So there would be no difference between private income and state benefits. I hope that that will be of some help and comfort. It is quite possible, for example, that the court might appoint a deputy for someone suffering from a temporary period of incapacity—a road accident, for example—who had a significant sum of money at their disposal and also received a disability living allowance for a teenage child. It would then make perfect sense for the same person to look after all that income and property.

4 p.m.

Both noble Lords addressed the issue of people whose primary income is in benefits. For them we have a system of appointeeships, 500,000 of which are in place, which is a huge number. As the noble Earl said, some 300,000 people might be eligible under the terms of the amendment. But that 500,000 must compare with 17,500 state receivers, so we have already reached very disproportionate numbers.

The appointeeship system is used when people lack capacity and receive state benefits. It is a long-standing, integral part of the system for payment of state benefits and, clearly, it must remain with the Department for Work and Pensions, as that is the department that administers the benefit, after all. We need that coherence and accountability, which could be lost if the responsibility were to move to another department.

The other thing about proportionality is that a court should not need to be involved every time a friend or neighbour offers to take responsibility for the benefits of someone who needs their help. The whole purpose of the appointeeship system is that it is an informal arrangement, often between families, friends and neighbours. Someone will go and collect the pension or disability pension, and it is done out of kindness, neighbourliness and generosity. It would be a disproportionate burden to expect people to get a court order first, and then to submit accounts to the Public Guardian on a regular basis. Frankly, many people would simply not do it. We know that the impact on those who were dependent on those acts of kindness would be very grave indeed. So it is important to balance the potential benefit with the potential difficulties, to which the noble Earl referred. We need to ensure that people continue to do those things.

The other thing that I would say is that, as the benefit system has evolved—and again this is a contextual point—we have become much better at ensuring that people on benefits have access to proper information. For example, I know from my other noble friend who made a lightning appearance, Lady Hollis of Heigham, about the provisions that we are making within the Disability Discrimination Bill for pensioners with physical immobility to receive benefits by a post office card, or to entrust their card to relatives. So we are looking at different ways in which we can help people through the system. But it is quite a different matter when someone is administering a sizeable and complex amount of money, with grave implications. In those cases, it is appropriate that a deputy should be appointed and monitored by the court and that he or she should meet formal requirements, such as producing accounts.

Therefore, we do not go along with the recommendations made in the amendment, although we completely understand what noble Lords are concerned about. It would be disproportionate to appoint a deputy when someone's finances are relatively straightforward and could be managed. But for those instances when they are not, a court can make a single order when a single decision is needed. For example, the major decision for many people who become incapacitated is to decide whether to move into a care home. In those situations, it would be possible to make a single order to deal with that. But it would not be appropriate to make a single order if the implication was that the applicant had a continuing role in relation to the person lacking capacity, as they always would if they were looking after their state pension.

We must think of the Court of Protection—and we shall come to that matter later in the Committee—as very much the place of last resort, when affairs cannot be settled in other ways. That is another reason why we do not want the court to be involved, when other solutions such as the appointeeship system are in place. Instead, the court will be able to provide other support through the Office of the Public Guardian, which will act as a signpost in many ways to suitable help and advice for a range of issues. Of course, as the noble Lord said, information is extremely important; people need to know where to go to get the most appropriate information and help to resolve problems concerning someone who lacks capacity. They will be able to advise, given the financial status of the person lacking capacity, the nature of the incapacity, the nature of the help that is needed, and other relevant circumstances, what is the best solution. But it will not always be the case that a court solution will be best; some other agency might be much better.

I turn to the point raised by the noble Baroness about monitoring. This is where the Committee might feel warmer to what I am saying. We know that there have been concerns about the appointeeship system, which has been in place for a long time, and, in particular, the monitoring of appointees. The Bill has enabled us to take stock of the arrangements for appointees and to improve them in the light of the Bill's principles. Officials and Ministers from DCA and DWP have been discussing how they can use the Bill to improve the appointeeship system. DWP Ministers have readily agreed that they will review the appointment process in light of the Bill.

During the process a DWP official—a benefits official—will visit the person lacking capacity and the prospective appointee. The official needs to be sure that the person does in fact lack the capacity to look after their own benefits, and that the appointee will act in their best interests. That process will be enhanced by the Bill and the code of practice. For example, it will be useful for the officials carrying out those visits to have the benefit of the extra advice on assessing capacity. DWP and DCA officials will work together to ensure that DWP guidance reflects the principles of the Bill and places best interests at its heart.

In addition, DWP acknowledges that the question of monitoring needs to be addressed, and it will look at the options for introducing a monitoring system. With half a million appointees, that is not going to be easy; but it is clearly important, and there will be visits, paper reviews, targeted monitoring—all those sorts of things can be looked at in the light of the Bill. DWP will act quickly to revoke appointments where allegations of mismanagement are made.

I should say to the noble Earl, who made the point about revocation, that the claimant can challenge an appointee. It is not always easy, but as things come to light within families, neighbourhoods and care homes about the conduct of appointees, DWP will certainly always investigate under those circumstances. I also reassure him about the idea that there might be confusion because there are two systems running. I have explained why we want to keep the appointeeship system, but the Court of Protection and the Office of the Public Guardian, in their efforts to make sure that we have as much information and appropriate placement as possible, will produce a wide range of information leaflets, including advice on applying to be a deputy. That will make it clear that it will not be necessary to apply to be a deputy unless the finances of the person lacking capacity are sufficiently complex to warrant it. That is part of our implementation strategy—to make information available as widely as possible. We will look for that information to go into as many places, such as doctors' surgeries, as possible.

When someone is receiving benefits and has a deputy or attorney, the DWP is committed to working with that person and enabling them to administer the benefits as well. We are looking at genuinely joined-up thinking and practice here. If there is no deputy or attorney, the DWP itself will make an appointment. DCA and DWP officials are committed to working together to ensure there is no confusion. It is a credit to the Bill that it has prompted that sort of movement in a system that has worked well but could probably work better.

With that explanation, I hope that noble Lords will not press their amendments.

Baroness Barker

I hope that the noble Earl, Lord Howe, will not mind if I speak first.

I thank the Minister for her comments. She made some very important statements, particularly about the extent to which DWP has been pushed towards reviewing appointeeship, which is a particular concern. However, I have a couple of points.

Perhaps the Minister can tell me at some stage how many of the half million appointees are in fact employees of statutory authorities acting on behalf of older people. The noble Baroness talked about contextual information. I think that there are two critical pieces of contextual information. Over the next year—the next year from March, as she will probably know from having sat through the proceedings on other legislation with me—direct payments will rapidly commence. By that I am talking not about direct payment of grant, but payment of benefit directly rather than through order books. There is a lot of concern about those with incapacity who will, over a short time, perhaps for the first time in their lives, have to start to operate a bank account. Over the next year that is going to be an extremely contentious and difficult matter in practice.

My second point concerns the way in which local authorities operate the appointeeship system. The noble Baroness may be able to discover another interesting statistic. How many of those for whom local authorities are appointees are in residential care? I suspect she will find that many people in residential care have local authority appointees. Why? Because there is a very close relationship between getting care home fees and so on.

I am also interested to know how many of those not in residential care have been given appointees. I ask that for the following reason. Age Concern is beginning to pick up a situation whereby local authorities approach voluntary organisations to ask them to take on the appointeeship work. Why? Because it is not a chargeable service. I am very concerned about some of the changes that are beginning to occur. I am not sure that they are happening for the best of reasons.

I thank the noble Baroness very warmly for her comments on the proposed monitoring, particularly regarding the DCA and DWP review of the appointment process. I hope that that will include an assessment of the extent to which appointees will follow the principles in the Bill. I ask her to consider two further points on that.

First, appointeeships are by nature informal, usually because the sums involved are not large and would not involve the Court of Protection. Sometimes, however, that sum is all the income that a person has and may mean a lot to him. Will there be any move towards notifying the Office of the Public Guardian about the number of appointeeships so that it can begin to register and monitor them? Secondly, are there any plans to make provisions allowing claimants to appeal decisions on their lack of capacity and their need for appointeeship? I would like to think that some of the Bill's best provisions for the autonomy of those who lack capacity could be reflected in the appointeeship system that is running in parallel.

Baroness Andrews

I am sorry that my noble friend Lady Hollis made such a lightning appearance—I should have detained her, or maybe restrained her. I shall do my best to deal with those points. However, I think it unlikely that we will be able to provide the noble Baroness with the information in the form she requests on the number of appointees and whether they come from statutory authorities. I know that she is right about the close relationship that leads to their becoming appointees for people in residential care. However, we will certainly see what we can find out on that point.

Direct payments are payments from local authorities to enable people to pay for their own care. At the moment it is possible to have direct payments but I understand that consultation is to begin on indirect payments where a person lacks capacity. I shall obtain more information on that and write to the noble Baroness.

I shall also write to the noble Baroness on the issues of notification relating to the Office of the Public Guardian and appointments. The appointments system is fairly fluid and informal. I shall think about those questions and write to the noble Baroness.

4.15 p.m.

Baroness Barker

I beg the indulgence of the Committee to ask that when the noble Baroness writes to me she addresses an issue that has been raised by Solicitors for the Elderly. That organisation is very concerned about these issues and has provided extensive briefing on them. I believe it is correct to say that single orders will cover people who have small occupational pensions. Will the noble Baroness ask colleagues in the DWP why, if single orders will cover those people, they cannot also cover people who receive benefits, as the two groups of people often share similar circumstances?

Baroness Andrews

That matter relates to the answer I gave about the difficulty of involving the courts and the formalities that would be involved. There is also the problem of the typical four-month delay that arises in those circumstances. If a large number of people went through that system, the delays would be longer. Practical issues are involved here but I shall certainly write to the noble Baroness.

Earl Howe

The fact that the noble Baroness wears a velvet glove in presenting her case does not prevent me feeling as though I have been beaten to a pulp on this side of the Chamber. Nevertheless, she has taken great care to meet the spirit of these amendments so far as she possibly can, and for that I am grateful.

The most encouraging message I take from her reply is that there is joined-up thought within government on these matters. There is not just joined-up thought but also the prospect of joined-up practice as between the Department for Constitutional Affairs and the DWP. That is immensely encouraging. I am sure we all want to see—this was the theme of my earlier remarks—the spirit of this Bill and of the codes of practice apply across the piece. I was extremely glad to hear what the noble Baroness said about the principle of best interests and about monitoring.

The noble Baroness, Lady Barker, made some very pertinent points. I hope that when a letter is sent to her in answer to those points I shall receive a copy as the questions were very well made. I was particularly taken with her question that, if the system remained as it is—I understand what the noble Baroness said about retaining accountability with the Department for Work and Pensions—and appointeeship remained with the DWP, whether there would be a system of automatically informing the Public Guardian of appointments made. That question implies that there should be some sort of a register kept by the Public Guardian of all the third parties who are dealing with a person's affairs, whether it be an appointee, a deputy or an attorney. If a register existed, an appointeeship that had been revoked because the appointee was not fulfilling the conditions of the appointment could be taken off the register. One could envisage that system working without too much bureaucracy or difficulty.

In the light of what the noble Baroness said about joined-up practice it would be interesting to hear whether there are discussions with the banks to enable claimants with appointees to manage as much of their affairs as they can themselves. That is a principle that we have debated since the beginning of this Bill. It is not immediately easy to see how that principle could be dovetailed into the current system but I hope that it could be.

The suitability of the appointee is, of course, another very important aspect of this. As the noble Baroness rightly said, you do not have a choice when the appointee is chosen—that is someone who is just thrust upon you. If we are to pursue the spirit of this Bill, we ought to look at ways of having some sort of check and some sort of voice for the individual.

It is only right for me to thank the noble Baroness for having enlightened us on the Government's current thinking. Much of what she said was encouraging, and I do not feel too pummelled. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Howe moved Amendment No. 62: Page 9, line 31, leave out "section 4 (" and insert "sections 1 to 4 (the principles and

The noble Earl said: In moving Amendment No. 62, I shall speak also to Amendments Nos. 66, 67, 71, 72 and 76. These amendments mirror the similar ones that we debated earlier for lasting power of attorney. It should be clear in the Bill that deputies should act in accordance with the principles of the Bill as outlined in Clause 1. The noble Baroness, Lady Ashton, was kind enough to say that she would take away that suggestion and consider it further. Like attorneys, deputies must be aware of the need to consider each of the principles before taking any action. Once again, although the Bill implies that they should do so, there is nothing apart from Clause 1 that explicitly makes that an obligation. Deputies and those appointed under a single order should have the same responsibilities as donees under an LPA to update the Office of the Public Guardian with any relevant change in circumstances.

Self-evidently, deputies can make vital decisions in relation to the finances and welfare of some of the most vulnerable people. For that reason, there should be checks that the deputy is a suitable person. Although the Bill provides that those who are bankrupt cannot be financial deputies, further checks should be made by the Office of the Public Guardian to make sure that the person who has applied to be a deputy is suitable for that role. I beg to move.

Baroness Andrews

As the noble Earl said, some of the amendments have been anticipated by the welcome statement made by my noble friend about the emphasis on principles. I shall take Amendments Nos. 62 and 76 first, which propose that Clauses 16 and 20 be amended to the effect that the powers of the Court of Protection and court-appointed deputies are subject to the provisions of the Act and to Sections 1 to 4, on the principles of best interests.

We discussed similar amendments in reference to attorneys, and this is in line with the spirit of the Bill. My noble friend said that she would take this away and consider an additional reference to the principles clause, which will emphasise that deputies are subject to the provisions of the Act and to Section 1 on the principles and best interests. On that basis, we look forward to yet another round of applause from noble Lords opposite for fitting in with the spirit of the Bill.

Amendments Nos. 66, 71 and 72 talk about safeguards. These amendments seek to reduce the possibility that unsuitable people are appointed as deputies. We have talked about the two ways in which we are going to secure that, first by excluding the appointment of those on the Protection of Vulnerable Adults List. We have talked about why it is not possible to check that list, although we understand the principle behind the amendments.

There have been discussions on bankruptcy not only in this House but in the other place as well. This afternoon, my noble friend confirmed that the Office of the Public Guardian will check to see whether prospective deputies are bankrupt. It is highly unlikely that the court would appoint an individual who is bankrupt as a deputy in relation to property and affairs, but as we said in debating another amendment a moment ago, it is possible that the court might wish to appoint such a person in relation to other decisions. Although they are bankrupt, they might still be the appropriate person for taking decisions on welfare and health. It does not preclude people being the best people in that sense. The court will obviously look carefully at whether such an appointment is possible.

On the POVA list, I reiterate—it was part of our response to the Bichard inquiry—that we are exploring the possibility of setting up new arrangements for registering those who care for vulnerable people. In addition on safeguards, given the principle that the powers conferred on a deputy should be limited in scope, a requirement to check the list would not be necessary in every case. A court might want to appoint a person to deal with a very specific and limited matter to do with a person's property and affairs. It might not be appropriate to consult the list in those circumstances.

Clause 16(4) makes it absolutely clear that a decision by the court—a single order—is to be preferred to the appointment of a deputy. That is something that we will explore on the next group of amendments, in relation to the principle of minimum intervention. The powers conferred on a deputy should be as limited in scope and duration as is practicable in the circumstances. We should also not lose sight of the fact that, under Clause 56, the Public Guardian is required to maintain a register of orders appointing deputies and to supervise them. The nature of that supervision is something that we will again discuss on the next amendment. We have good safeguards in the Bill.

I come to the change of circumstances, which was raised by the noble Earl, Lord Howe, on a previous amendment, when my noble friend gave it a warm welcome. It is more difficult to translate the issue into the position of deputies, and I shall explain why. My noble friend explained that the code of practice would advise deputies that they should inform the Office of the Public Guardian of any change in their circumstances. The code will point out the importance of keeping the register of deputies up to date. We listened hard to what the noble Earl said on that.

However, I am not sure how helpful it would be to include that information in every court order. It would raise questions on how we would enforce the matter, and about what sanctions would apply if someone did not immediately let the OPG know about a change of address. Those are very practical issues. It would be wrong and misleading to put something in a court order that had no legal force. The notion of such information being in it is a problem for us.

For those reasons, it would be better to include the advice in the code than in a court order, bearing in mind what my noble friend said about the legal force of the code. Deputies will have a duty to have regard to the code; it is not simply a menu of suggestions. Those safeguards should commend themselves to the Committee, not least because a deputy, unlike an attorney, will have to make regular reports to the Public Guardian to ensure that he maintains the duty that he has undertaken. I hope that the noble Earl will be able to withdraw his amendment on that basis.

Earl Howe

I am very grateful to the noble Baroness for that full reply. I do not wish to add anything to my earlier comments, except to say that I shall reflect carefully on what she said before Report. I think that she allayed most of my concerns, and I totally understand her points about the POVA list, which we debated earlier. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.30 p.m.

Baroness Barker moved Amendment No. 63: Page 9, line 35, leave out paragraph (a).

The noble Baroness said: This is a probing amendment. Paragraph (a) states that a decision of the court is always to be preferred to that of a deputy. Why should that be the case? Does the noble Baroness think that having such a statement in the Bill would make it more likely that more decisions would be put before the court than might otherwise be the case and that, in a sense, there would be a ratcheting up of the kind of decisions upon which one would seek a court decision?

Amendment No. 65, which is also in this group, has been tabled for two main reasons. First, when looking through the Bill, I could not see—I am willing to be proven wrong—that the court had a power to review the appointment of deputies. Circumstances may change and a power to review an appointment may well be a good thing; for example, if the person who had been appointed was a relative and at some point there had been a divorce, or where there was inconclusive evidence of abuse—not something of such significance or such prima facie standing that the court would go on to exert any of the other powers listed in this part of the Bill.

I think that we shall go on to have a significant debate on the amendment in this group tabled by the noble Earl, Lord Howe, but it may be better if I say this now and then sit down and not take up further time. My second reason for tabling the amendment is that I wonder whether conflicts of interest might arise when, for example, a court-appointed deputy is a member of staff of an authority and that authority is also engaged in charging fees for services. Furthermore, perhaps the noble Baroness will consider another issue on which I have some concern—that is, where the appointed deputy is a solicitor, or a member of a solicitors' practice, who also acts on behalf of the authority which may be making the charge. I can see some potential for a conflict of interest there. I consider this to be an important set of amendments. I beg to move.

Lord Pearson of Rannoch

I rise to speak to Amendment No. 70A, which is in my name and in this group. It is a probing amendment and its obvious purpose is to require the court to appoint a suitable family member as a deputy in preference to a professional. The concept and the wording are taken from Clause 32(2)(a) of the Bill, which concerns the consultation of carers over research.

The amendment's further purpose is to recall the very important points made by the noble Baroness, Lady Pitkeathley, (at col. 69 of the report of our Second Reading debate) when she wisely drew a distinction between family carers and professional carers, who, unfortunately, are often in conflict over what should happen to a person with intellectual impairment. Indeed, in the whole area that we are considering, I agree with the noble Baroness that a clear distinction should be made—and reflected in the Bill and the guidelines—between family carers and professional carers. I suggest to the Minister that perhaps that distinction should be made particularly in the guidelines; I do not know how easy it is to include it in the Bill.

I remind Members of the Committee of what I said at Second Reading. Although it is common ground that we must do our utmost to treat every person as an individual with their own unique qualities and requirements, it is probably true to say that people with more severe impairments are likely to be better known by, and to rely more on, their family members than is the case with those with less severe difficulties, some of whom can be frustrated with what they may regard as an overprotective family and who may therefore look more for professional support.

For those reasons and for the reasons put forward by the noble Baroness, Lady Pitkeithley, at Second Reading, I submit that it is important to draw a clear distinction between family carers and professional carers. The word "carer" should not continue to be a blanket description for those very different and often conflicting categories of people.

The amendment gives me the opportunity to put another point to the Minister. At Second Reading, I suggested that the next of kin of an intellectually impaired person, or a person nominated by the next of kin should be granted the same powers of discovery as the Bill proposes for independent consultees. The Minister has been good enough to write to me declining that suggestion, saying that the next of kin may not be particularly close to the person concerned and that the family can use the Data Protection Act to access the health and social care records which may be required to inform a decision. The Minister says in her letter: The Bill requires that those engaged in caring for a person who lacks capacity, or who are interested in their welfare, should be consulted when a decision needs to be made. So the person holding information, for example, a doctor, may voluntarily disclose relevant information to them so long as he complies with data protection principles". The Minister will forgive me, but those are not quite the same powers as those proposed for independent consultees. Family carers may, therefore, find themselves at a disadvantage. I shall of course be very interested to hear the Minister's reply to the problem today, but as things stand, I trust that she will accept that the Bill, as drafted, will encourage many, perhaps most, of the family members whom I represent to seek to become deputies. I accept, as I did at Second Reading, that that may not apply to most of the categories of people covered by the Bill, but for the families of people with life-long severe incapacity, it will become the obvious thing to do. There is perhaps nothing wrong with that, but I want to be sure that the Government understand and accept that. I beg to move.

Baroness Howarth of Breckland

I understand that in my absence from the Chamber just before lunch, for which I apologise, the Minister assured the Committee that there were difficulties in residential carers becoming attorneys. I raise the same point in relation to deputies. Those who are professionally employed as registered care home owners or their employees have real conflicts of interest in relation to this part of the Bill.

There are real difficulties in relation to the points raised by the noble Lord, Lord Pearson, and certainly in relation to the points he raised about what the noble Baroness, Lady Pitkeathley, had said. Such people often have others to speak for them. I have a grave concern for large numbers of particularly elderly, frail people and severely disabled people who do not have anyone else but the local authority or their care home to stand up for them. In the world of children, we have ensured that there is always an external person. I had hoped that the inclusion of attorneys and deputies in the Bill would bring that assurance.

Therefore, I am looking to the Government, through this Bill, to take us to the next stage of care and representation for those who otherwise would not have representation because they often do not have family members providing that care. I am particularly concerned about conflicts of interest as regards residential carers and care home owners; domiciliary care comes into that too.

Baroness Knight of Collingtree

Does the noble Baroness agree that she could also put in to the categories that she has mentioned mentally handicapped people? Often, if they were born to elderly parents, they have no one. I support what she has said, that this Committee must not leave these people insufficiently cared for.

Baroness Howarth of Breckland

I absolutely accept that. I was simply adding to the points made by the noble Lord, Lord Pearson, rather than detracting from them. I thought he made that point extremely eloquently on behalf of that group of people.

Lord Christopher

I see some conflict between this proposal and the one that follows in Amendment No. 64. I suggest that we need to have some confidence in the court. I cannot believe that the court would not wish to prefer a family member if that, prima facie, was the best thing to do.

On the other hand, it may well be the case that so far as concerns the family, nobody wants to do it, whatever their feelings for the patient, or that there are some serious conflicts between one family member and another which can only lead to problems if one or other was chosen.

So I suggest that this proposal certainly should not be on the face of the Bill. Whether something is needed in the guidance notes is a matter for thought. But let us have some confidence that the court will use its head.

Lord Pearson of Rannoch

Of course I accept that the circumstances the noble Lord puts forward may arise. I think that he will accept that there is less likely to be some form of financial conflict of interest with the category of people I referred to. If they have lifelong impairment from birth, they are most unlikely to have the assets which can cause conflicts of interest, unlike other people who have had assets during their life, for instance, and who are covered by the Bill. With that proviso, I accept what the noble Lord says.

Lord Christopher

I will support that briefly. When we get to Amendment No. 64 I shall try to show the other side of that story.

Baroness Finlay of Llandaff

I would like briefly to inform the Committee of some correspondence I have received that supports Amendment No. 70A. It is from the Cardiff and the Vale Parents Federation, which has consulted with the All Wales Forum of Parents and Carers. Perhaps I may try to summarise its contents. The federation has consulted widely, including in England, as far as I can ascertain.

The federation feels deeply hurt by some general statements that suggest that in these circumstances family carers are not necessarily the best people. It points out very clearly—and I endorse this from my own experience—that these families are trying very hard to achieve the wishes of people for whom they care and who they feel may be so easily disregarded and that in many cases it is impossible to interpret people's wishes accurately.

The federation points to independent research which has demonstrated that in person-centred decision-making families working with their relatives make the most effective advocates and representatives. We ignore that type of objective research at our peril. This is an important amendment in redressing the balance and ensuring that families feel they are respected when they have spent all their lives fighting for the rights of the person who lacks capacity.

Lord Walton of Detchant

I raise briefly one point relating to the amendment proposed by the noble Lord, Lord Pearson of Rannoch. There is a difficulty over the definition of next of kin. It is perfectly straightforward when there is a spouse or a son or daughter of the individual in question. However, when we in the Select Committee on Medical Ethics looked at the issue we were advised that there are relationships, such as gay relationships, which have no legal standing. In that situation certain difficulties may arise in talking about what is meant by a family. We came to the conclusion that next of kin should be regarded as the individual closest to that person.

Lord Pearson of Rannoch

I should be perfectly happy to substitute the phrase put forward by the noble Lord.

Earl Howe

Perhaps I may speak briefly to Amendments Nos. 64 and 73 in the group, which again bear upon the theme of conflicts of interest. What I think is important in this context is not that conflicts of interest should be absent altogether, because very often that is impossible, but that there should be transparency.

My amendments refer to "material" conflicts of interest. I do not think that it is for the Bill to define what "material" should mean here, the court should take the view on what is or is not material. If a deputy happens to be a close relative, conflicts of one kind or another will be highly likely but, as in business and, indeed, in ordinary life, they will not matter as long as everyone is aware of them and the person concerned is scrupulous about following the best interests obligation.

4.45 p.m.

Where they may matter is where large sums of money or substantial assets are involved and where the deputy stands to inherit large sums from the incapacitated person's will. Earlier, we had the example of where there is a choice between a care home costing, say, £400 a week and one costing £800 a week. Let us imagine that the first care home would be adequate and that the second one would be both affordable and provide much better amenities. That is the kind of major decision where an independent advocate should be on hand to support both the incapacitated person and the deputy to ensure that the outcome reached is right and fair.

It may be that, all things considered, the cheaper care home is the preferable option, but it would not be right for the deputy to take that decision without declaring his personal interest and without the decision being given a stamp of approval either by the court or by an independent third party. We need to bear in mind that deputies may well be appointed where there is family conflict. The obligation to declare material or potentially material interests would protect the deputy himself, as much as the person for whom he was acting.

I hope that we will hear some encouraging mood music from the Minister when she replies.

Lord Christopher

I apologise; I had not realised that Amendment No. 64 was in this group, but I suspect that I would not have spoken until I heard the noble Earl in any case. I cannot think that any Member of the Committee objects to the objective here. It is clearly desirable. I return to something that I said a few moments ago: we must have some confidence that the court will know what it is doing or will find out what is the wisest course of action.

I am not quite sure what is the difference between a receiver and a deputy; perhaps it is a distinction without much practical difference. Again, in the case that has been mentioned almost to the point of boredom, the court master said that in his judgment it was a case where he would normally have appointed a solicitor—but they cost money and, prima facie, there was no money to pay one—or a member of his own staff. On his own grounds, I suspect, he decided that I was cheaper. I would assess that, had the court appointed a member of its own staff to do the job, we would have been talking, over a period of three years, of at least a third of a unit. So what is involved is not inconsiderable in some cases.

One advantage of being here is that the concept of declaring an interest is pushed into our minds daily. Sometimes we slip but, mostly, we do it properly. This is an area where the court should decide who it feels can best do the task that has to be done, whatever it may be. It may be simple; it may be complex. There should also be clear guidance if someone is appointed who, prima facie, will have an interest. I certainly had an interest; there is no question about that. It should be clear what are their responsibilities in ensuring that the court knows what those interests are as the case proceeds.

It may be quite simple. This example could have arisen—although it did not. There may be a choice between selling an 18th century clock, which the attorney had hoped to have one day, to pay some bills and selling something else. I took the precaution of ensuring that there was a solicitor at my elbow from time to time and checking with her as issues arose. On an almost weekly or monthly basis, I would tell the court what I proposed to do and ask whether it was okay. I never received the answer that it was not. Unless that is conveyed to people, we will considerably restrict the court in the appointments that it can make.

I do not question what has been said from the Cross Benches: that it is often a member of the family who can best do the job. As I said, I suspect that that was in part why I got the job. But to tie the court's hands in some fashion is a mistake. We should have confidence in the court, but ensure that there is proper guidance for the people given those tasks about their responsibilities.

Lord Alton of Liverpool

Earlier in the proceedings of the Committee, I raised a question about codifying the various forms of conflict of interest that are peppered throughout the Bill. The point just made by the noble Lord, Lord Christopher, illustrates again the need for us to be very clear about that. I support strongly the remarks made by the noble Earl.

I do not intend to reiterate my earlier arguments, but will the Minister say whether consideration is being given not only to showing where different forms of conflict arise in the Bill but also to making clear what penalties there would be and what courses of action lay open?

Baroness Andrews

We have had a very wide-ranging debate, not least on the nature of the conflict of interest. There have been many examples of what might constitute a conflict of interest, for which I am very grateful to all noble Lords who have spoken.

Amendment No. 63, in the names of the noble Baroness, Lady Barker, and the noble Lord, Lord Goodhart, is not necessarily easy to deal with, but there is a more straightforward explanation to the single issue that the noble Baroness addressed. When deciding whether to appoint a deputy, the court must, of course, have regard to the Bill's main and overriding principle of best interests. Clause 16(4) sets out two further principles to which the court must have regard when deciding whether it is in a person's best interests to appoint a deputy.

Those principles are that a court decision will always be preferable to the appointment of a deputy and the powers that deputies are given must be as limited in scope and duration as is reasonably practicable in the circumstances.

The noble Lord and the noble Baroness propose that the first of those principles—Clause 16(4)(a)—be deleted, which would remove that presumption. The noble Baroness gazed at me in wonder and said, "Why, oh why, are you actually doing this?". As I hinted in our previous debate, both principles in this clause set out the Bill's principle of minimum intervention, as set out in Clause 1. It is an extremely important provision because it attempts to achieve that balance between protection and independence; that is, people without capacity are enabled to be as independent as possible, while giving them as much protection as possible. Any decision must be that which is least restrictive of their rights and freedom of action.

Rightly, the Bill does away with the label of "incapable". What matters is whether a person can take a particular decision at a particular time.

A one-off decision by the court is less restrictive of the person's rights and autonomy than the appointment of a deputy. The deputy, unlike an attorney, will not have been chosen by the person concerned, but by the court. The deputy will not be able to make ongoing decisions for the person on the matters specified by the court. For example, where several members of a family are arguing between themselves about whether a person should have serious medical treatment, the doctor may want to come to the court to get a single order for that particular decision.

There may be situations where it is more appropriate to appoint someone to deal with ongoing decisions, rather than obliging people to come back to court. For example, where there is property to be sold and a series of significant financial decisions to be made over weeks or months, it would probably be better to appoint a deputy. In other situations, a single court order might be better. We expect there to be many more deputies for financial affairs than for health and welfare. But, in all cases, it is most important for the court to take a decision that is in the best interests of the person concerned. So we cannot be categorical about it.

I hope that it is clear why deleting this part of Clause 16(4) would be contrary to the important principle of minimum intervention and, therefore, at odds with the Bill's ethos. With that explanation, I hope that the noble Lord will be satisfied.

I turn now to conflicts of interest. Amendments Nos. 64 and 73 seek to ensure that the court does not appoint a deputy with any actual or potential conflict of interest in taking decisions for the person who lacks capacity. The noble Earl took some time to explain what he meant by "material conflict of interest", which was both important and helpful. Other noble Lords mentioned further definitions of conflict of interest such as the example of the care home owner, while the noble Baroness, Lady Barker, cited that of the lawyer.

Perhaps I may first address the financial issue. Of course we understand the underlying aim of the amendments. It is important that a person lacking capacity is protected from potential abuse at the hands of a court appointed deputy. However, I suggest that the amendments would not add to the safeguards already in place. A three-layer defence is provided here, which I shall detail for noble Lords.

First, we have the overriding imperative of "best interests". Both the court and the deputy are required to act in the person's best interests. Indeed, I am grateful to my noble friend Lord Christopher for reinforcing that central point. It means that the court cannot appoint a deputy if it knows of a conflict of interest that would mean that the prospective deputy would not act in the best interests of the person who lacks capacity.

That brings me to the second line of defence and addresses the concerns raised about the meaning of "material conflict", and what evidence will be available to the court to make a decision. To begin with, the deputy will need to declare whether he has ever been convicted of a criminal offence and whether he has ever been disqualified as a company director. As is the case with receivers, the court will be able to obtain a copy of the will of the person who lacks capacity, so that it will be clear whether the prospective deputy is a beneficiary.

Added to those is a third layer of defence, which has resulted from the experience we have gained from the process of receivership. We have developed ways of judging what are best interests and whether people are capable of acting in the best interests of someone else without encountering any conflict.

We have to acknowledge—indeed, it is a positive thing—that in many cases deputies will be trusted family members such as husbands, wives or children. This may happen, for example, if the person has not made an LPA while they had capacity, and their loved one applies to be appointed as a deputy. It may also arise when someone loses capacity suddenly as a result of severe brain injury. However, as noble Lords have been at pains to point out, being a beneficiary of a will does not mean that the person appointed would not act in the family's best interests. Every family is different, and as Tolstoy noted, every family is unhappy in different ways. Families are complicated and occasionally will be in conflict for the greater part of their lives. However, we need to ensure that the system arising from the Bill protects people from the worst of such situations.

Once appointed, the deputy must always act in the best interests of the person concerned. If he acted to further his own interests to the disadvantage of that person, it would be open to the court to revoke or amend the deputy's authority. As my noble friend has already indicated, we propose to consider whether to provide explicitly in the Bill that deputies are subject to the principles set out in Clause 1 and the best interests provisions in Clause 4.

I hope that, with the safeguards I have set out, the Bill will provide for everything it reasonably can. I hope also that the evidence point meets the definition offered by the noble Earl in his amendment as to what is "reasonably ascertainable". However, we have to be realistic about what we can and cannot find out, as well as what may or may not be inferred.

I shall turn briefly to our discussion on care home owners and registered care providers. The noble Baroness has made a powerful case, one that on its face is almost irresistible. But we have to consider carefully the fact that there are instances where the person who is most closely involved in the life of a vulnerable person, and who provides the most affection, is the care home owner. I could cite cases of that myself. If we outlaw the provision to appoint them as deputies, we might take away from vulnerable individuals their sole option. It is difficult to preclude such an appointment on the face of the Bill. The court's decision will have to be respected and will be final.

5 p.m.

The noble Baroness will know better than anyone what we are trying to achieve through the national care standards. They are incredibly challenging standards to meet but she knows that they are making a major difference. All those contextual improvements will make a great difference to relationships.

It might also be helpful if we were to talk through with the noble Baroness—my noble friend has made this offer—some of the implications. We know that CSCI is concerned about this and we would be happy to do that.

Let me deal with the question raised by the noble Baroness, Lady Barker, about the conflict where the solicitor acting as deputy acts for the local authority as well. Professionals such as solicitors often have contradictory obligations—they often act for different people—and it is not unknown for them to be in such a situation. However, the noble Baroness has raised an important point and we shall listen to what she says.

From that range of conflicts, let me pass on to Amendment No. 65. This follows quite logically because it raises the question of how the court will monitor the quality of the responsibilities of deputies and whether they are doing their job properly. It follows closely on from the discussion on conflict of interests. We understand that the intention behind the amendment is to protect vulnerable people.

We are quite clear that the right people should be appointed, but we are equally clear that they should have the checks and support necessary to ensure that they do a good job. That responsibility will rest with the Public Guardian. He will be charged with supervising the deputy. He will have a range of powers available to him and he will be alert to any complaints that are made. All court-appointed deputies will be registered with, and supervised by, the Public Guardian.

The supervision arrangements will build on what we have in place already and they will be made up front. When someone applies to become a deputy, checks will be made to ensure that only suitable people are appointed and that subsequent supervision is tailored to the level of risk involved. Evidently an accountant acting as a financial deputy may need less supervision than a lay person, but every deputy will receive an initial visit from a Court of Protection visitor in the early months of appointment. Thereafter, the visitor can visit as his judgment dictates to respond to difficulties and to monitor what is going on.

Specifically for financial deputies, the Public Guardian will require a regular submission of accounts. He will be responsible for co-operating with other agencies, such as the police and social services. New innovations we have made in regard to health and welfare deputies may require them to submit reports saying how often they have exercised their authorities. This is work in progress and we will look very carefully at the issue, not least in the light of the concerns that have been raised in the debate today. This will enable the court to determine whether the deputyship is still necessary and to ensure that the appointment is reviewed regularly. Again we are looking at this in the light of the minimum intervention principle. Deputies will be authorised to deal with specific matters for a specified period of time and will be subject to review.

If there are concerns about a deputy's actions, no matter where they come from—the family, the care staff, neighbours or whatever—the Public Guardian will act as a co-ordinating point to investigate those concerns with relevant agencies. Ultimately the matter could be referred to the court and the court will be able to revoke the powers of people who are acting as deputies or amend their powers. So there is a range of protections around the system. I hope that I have reassured the Committee on that matter.

The final debate we had was on the issues raised by the noble Lord, Lord Pearson. Of course we sympathise, without condition, with what he is trying to achieve. Let me make a general point. He referred to the letter that my noble friend wrote to the noble Baroness, Lady Pitkeathley.

Lord Pearson of Rannoch

I referred to the letter that the Minister wrote to me.

Baroness Andrews

I beg the noble Lord's pardon. However, my answer still stands, I am afraid. We feel it is not appropriate to make distinctions in the Bill between types of carers. I am thinking aloud here: we have such a range of legislation dealing with carers, such as the Care Standards Act 2000, and legislation covering young carers, that defining and treating this notion across legislation might well be difficult. There may be other explanations.

I cannot answer the noble Lord's question about next-of-kin on the Floor of the Chamber this afternoon. I am afraid that he will have to bear with us and receive another letter.

The good news is that this point will certainly be covered in the code, which has statutory force. That will enable us to spend more time explaining why we make the distinctions and judgments we do. I hope that that will help.

Lord Pearson of Rannoch

Since making my remarks, I have received a copy of the letter the Minister wrote to the noble Baroness, Lady Pitkeathley. It makes the point that the statutory obligation will be to consult, those who know a person best". We would all agree with that. I mention in passing, and in anticipation of the letter that the noble Baroness will be writing to me, that there is often conflict between professional carers and family carers with regard to who knows the person best. My family has on two occasions been told by no doubt well meaning social workers that they knew my daughter very much better than we did. That is the kind of thing that I am trying to avoid in future, because it is very unhelpful.

Baroness Andrews

That is a helpful point. I do not think that that is an unusual situation. Highly dependent people in residential care homes develop very close relationships with their carers. Sometimes there are issues, such as when families feel excluded or the practice is not good. There is an art to managing these relationships in the interest of the person involved.

The noble Lord's amendment would introduce a new principle to which the court should have regard when appointing deputies. It should, prefer appointing as deputy a person who, otherwise than in a professional capacity or for remuneration is engaged in caring for the person—that is, a family carer. Noble Lords on both sides of the Chamber have spoken about that, and we understand the intention, for the reason that family members are more likely to have the person's best interests at heart. We would all like to think that our families have our best interests at heart.

The amendment would cause problems because, in all sincerity, we do not believe that it would be practicable. First, Clause 19 refers not just to the appointment of health and welfare deputies but also to financial deputies. In this specific case, the best deputy for financial and property affairs will not be a family member. That is self-evident. It could well be an accountant or someone else in a professional capacity.

My noble friend Lord Christopher spoke on my next point. It is preferable to avoid imposing too many rigid rules on the court. We need to enable the court to act with flexibility and proper judgment, to make decisions in the person's best interests. There will be instances where it will be in the person's best interests to have a daughter or husband nominated, but in other cases it will not. We have to retain that flexibility to cover the very wide range of circumstances which will arise. In some very sad cases, the family will not have the best interests of the person at heart. So I ask that we allow the court to have flexibility and discretion on a case-by-case basis.

Lord Pearson of Rannoch

I will accept what the Minister said, provided that the Minister accepts that in the case of families of people with lifelong severe learning disabilities, there may be the odd bad apple among the families. But on the whole, the majority know the person best. They have looked after them very often with great effort for a long time. As long as that is on the record, I accept all the other things that she said, because the Bill covers many categories of people.

Baroness Andrews

I would not disagree with what the noble Lord said.

Finally, the noble Lord mentioned that the family carer had fewer rights to information than independent consultees. We are not sure that that is true. It is possible to share information according to best interests. It will normally be in a person's best interests to share information with the independent consultees who have been given particular powers because they have no relationship with the patient. However, it may not be in the patient's best interests to share information with them, so there are some subtleties at work.

I am conscious of the time and that other specific questions were asked in the course of the debate. I hope that I have said enough across the range of the amendments for noble Lords to feel happy about not pressing their amendments. I shall read Hansard very carefully and reply in writing to issues that I have not been able to address.

Baroness Barker

I thank the Minister for her full response and her explanation about our Amendment No. 63. It points up that this is a rather different Bill and that there are different ways of expressing things on these subjects than has previously been the case. The Minister said a considerable amount in response to Amendment No. 65. I will go away and study Hansard, but I was interested in the idea that the Office of the Public Guardian might have to produce reports, especially about how often it has exercised its authority.

I remain concerned that the issue of conflict of interest has not been fully addressed. The noble Earl, Lord Howe, was absolutely right when he said that conflicts of interest do exist. It is a question of how they are dealt with and the transparency that lies behind that. The Minister has gone a considerable way towards explaining how the machinery behind the Bill will work. Noble Lords may want to take this matter away and consider coming back at a further stage. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 64 to 67 not moved.]

Clause 16 agreed to.

Clause 17 agreed to.

Clause 18[Section 16 powers: property and affairs]:

[Amendments Nos. 68 and 69 not moved.]

Clause 18 agreed to.

Schedule 2 [Property and affairs: supplementary provisions]:

Baroness Barker moved Amendment No. 70: Page 44, line 27, leave out "Lord Chancellor has" and insert "bishop of the diocese in which the benefice is situated has

The noble Baroness said: I apologise. The noble Lord, Lord Goodhart, has had to leave and this amendment was penned by his hand. Happily for me, I get the privilege of moving the best amendment in the whole Bill. This is not so much an anorak amendment, but a cassock amendment. I have waited for hours to say that, and I am sorry, but I have now got it out of my system.

Noble Lords will know, and some will appreciate in great depth, that where the patron of a benefice—the individual who has the right to appoint a priest of the Church of England—lacks capacity to make the appointment, the power of the appointment currently resides with or, according to the Bill, should remain with the Lord Chancellor. It is our view that that is wrong and that the involvement of the Lord Chancellor in the appointment of clergy of the Church of England to benefices is an historical anomaly, which should be terminated as soon as possible and should not be extended. Perhaps I am acting as an advocate for the Church of England here but, frankly, we believe that they have had centuries of experience and have the skills and capacity to do this all very well on their own. We should like to empower the Church of England to take over this particular function. I beg to move.

5.15 p.m.

Earl Howe

I am not sure whether I should declare an interest—perhaps I should, as I am a patron of four livings. It was my belief that when a patron was unwilling or unable to make an appointment, the duty fell automatically on the diocesan bishop, failing whom it fell to the Archbishop of Canterbury, failing whom it fell to the Prime Minister. I was unaware that the Lord Chancellor had a role in that process and, regardless of the current legal position, I am entirely in sympathy with the amendment that the noble Baroness proposes. It makes eminent sense.

Baroness Ashton of Upholland

Apparently, since the 14th century, the Lord Chancellor has exercised patronage in relation to a number of parishes. The noble Earl may be acting, as I am sure that he always does, with complete correctness. I am fascinated to meet someone who is a patron, as I had never heard of that until this amendment appeared.

This is a very interesting and extremely specialised point, as the noble Baroness knows, in the light of the proposals made under the Constitutional Reform Bill and the application of the Mental Capacity Bill. We are considering what best to do and are doing so in consultation with the Church. I shall return with an amendment to sort out the matter properly, as soon as possible, taking on board what the noble Baroness and the noble Earl have said. I have to say that my favourite amendment is still the stamp one, but there we go. I hope the noble Baroness will withdraw her amendment.

Baroness Knight of Collingtree

Before the Minister reaches a conclusion on the matter and the whole business comes back to us, could we have some knowledge of the views of the bishops on this matter? If, for instance, they are not very anxious to take on this responsibility, could we at least know about it? It is a change and, when the matter is considered, it is one of the things that we ought to know. What is the view of the bishops themselves on the matter?

Baroness Ashton of Upholland

I suspect that the bishops will speak for themselves, any moment now.

The Lord Bishop of St Albans

I am most grateful to the Minister for allowing me to speak on my own behalf. As the Committee will be aware, the situation is intensely complicated for reasons of history, and so on. I know that very careful consideration has been given by the Church of England in conjunction with the Department for Constitutional Affairs and others as to how the schedule may resolve, in the light of much bigger issues. We are content at the moment that those conversations should go ahead, recognising all the anomalies that some have referred to, and recognising the importance of patronage.

I want to assure the House, while wearing a cassock in this particular case, that bishops enjoy exercising patronage. Just for interest's sake, I can tell the Committee that there are some dioceses, of which mine is one, where bishops exercise patronage only in slightly over 51 or 52 per cent of the cases, but of course all the responsibility falls to us if the patrons get it wrong. So there is some injustice still in the world.

Lord St John of Fawsley

It has been said, "Put not your trust in princes". You might vary that and say, "Put not your trust in Prelates". This is in one sense a very confined and technical argument; in another sense, it is not, because it is connected with the whole future of the parson's freehold, which is one of the great bastions of liberty left in this country.

There were only two institutions which were independent. One was the House of Lords, until the noble Baroness, Lady Ashton, turned her countenance upon the issue and started interfering with its freedoms and independence. The other was the Church of England and the parsons. If they are to be reduced to people who can be moved about just at the will of a bishop, that will be a major threat to liberty.

When the Roman Catholic hierarchy was restored in 1850 in this country, leading, as the noble Baroness will recall, to the Ecclesiastical Titles Bill forbidding them to use their titles, those who were not restored at that time—I hope that the noble Baroness will let me see her countenance once again—the ordinary priests, were not restored in their independence. It is vital that that independence should be retained. That is why, although you get the odd eccentric, they are able to speak freely. Everyone else in this country is now some form of employee, some sort of petit fonctionnaire looking over their shoulder to see whom they can please.

Lord Carter

Will the noble Lord give way?

Lord St John of Fawsley

To the noble Lord, of course; I could think of nothing more delightful except giving way to the noble Baroness whose countenance is now so evasive.

Lord Carter

I just wondered whether the noble Lord was aware of the sentence in the Companion that says that a debate should be relevant to the question before the House.

Lord St John of Fawsley

I have a rather broader view than the noble Lord and can see the relevance very clearly. It is a question of liberty. Because it is a general question of liberty, it is relevant to this issue. We must be broad case and not lower case. Let us look at the broad print. Anyhow, I will not speak for very long. I just wanted to make that point. I hope that it will be noticed in the Synod—which is one of the afflictions with which the right reverend Prelates have to deal—that there is a very strong body of opinion in this House and elsewhere that wants the parson's freehold to be preserved and would regard any inroad into that as a major attack and assault on the liberty and freedom of the Church.

The Lord Bishop of Winchester

This is delicate ground, and far be it from me to adjudicate between the noble Lord, Lord St John of Fawsley, and the noble Lord, Lord Carter. The House will make its own decisions. I observe, first, that I do not think that we should simply sit down under his description of the Synod because people might say that we agreed with him were we to do so. I will not say any more about that either.

My guess is that the significant issue here about which discussions will be going on, if I may presume to say so, is other than that to which he has drawn attention. The significant issue could be—I am not party to the discussions although I guess some of us will be consulted at some point—somewhere in the region of the participation of the Crown in matters ecclesiastical. I suspect that that is where the issue lies. It may be, although again I do not know, that part of the motivation of the amendment is to shift patronage to the bishops and away from the Crown and the Lord Chancellor. If that is so, then the issue is certainly other and it is certainly delicate. I think it might just be worth making those observations.

Lord St John of Fawsley

I think that the right reverend Prelate has made a most important point, the beneficial side effect of which was to justify my intervention against the imprudent attempt to silence me by the noble Lord, Lord Carter. The noble Lord has held many offices. I wonder whether he has ever been Chancellor of the Duchy of Lancaster. Well, I have.

Lord Carter

If it will help the noble Lord, I have been Captain of the Honourable Corps of the Gentlemen-at-Arms.

Lord St John of Fawsley

That is one of the greatest dignified parts of the constitution, but the position of Chancellor of the Duchy of Lancaster is part of the efficient parts of the constitution by which we rule and govern.

When I was Chancellor of the Duchy of Lancaster— if I may be allowed to return to the train of thought which has been providentially prompted by the right reverend Prelate—I had a considerable degree of patronage. However, mindful of the statute of primuni, which places certain penalties on the members of the Church to which the noble Lord, Lord Carter, belongs if they exercise this patronage, I decided to refrain from exercising it altogether and put it entirely in the hands of my officials. However, the Chancellor of the Duchy of Lancaster is a figure who is much closer to Her Majesty the Queen than the Lord Chancellor. Therefore the point made by the right reverend Prelate is very germane because this affects the patronage of the Duchy of Lancaster where, of course, the Queen is Head of State in virtue of her position of Duke of Lancaster and not as Queen of this country.

I thank—I was almost going to say most reverend Prelate—the right reverend Prelate for his extraordinarily helpful, diplomatic, eirenical and ecumenical intervention.

Baroness Ashton of Upholland

The purpose of this amendment is to deal with what we have been dealing with today and throughout the course of this Bill; namely, the issue of capacity and what we should do to retain the theme of the Bill regarding best interest while addressing a very specialised point concerning individuals who might lose capacity, and therefore the relationship between the duties and responsibilities they have and those on the receiving end of those duties and responsibilities.

These are important issues and we need to continue the dialogue. It is not a question of the broader issues, although I accept that the noble Lord has every right to discuss those, because today we are discussing the issue of capacity. It is in that spirit that I say to the noble Lord that we will continue to discuss with the right reverend Prelate and others how best to deal with what we would do if someone who had this patronage lost capacity to ensure that we supported that individual and dealt with the relevant issues.

In that spirit and with my countenance firmly upon the noble Lord—however, I do not hear with my countenance; I hear with another part of me and therefore I can still listen with great interest to the noble Lord while not always looking at him directly— I hope that on that basis he will feel satisfied that I am acting completely properly in saying that we should continue that dialogue and return to this matter at Report.

Lord St John of Fawsley

Let me assure the Minister before she sits down that, of course, I accept the bona fides of her intentions; I have never doubted them for a moment. She is one of the most honourable Members of this House. She has taken an extraordinarily active and constructive part in these debates. She has taken immense trouble. She must have spent hours studying the matter, and I fully appreciate it. I merely thank her very much and say to her, "God bless you", by which in this context I mean, "God help you".

Baroness Barker

I told the Committee this was the best amendment in the whole Bill and so it has proved.

The noble Baroness is right—the bigger question of constitutional reform was no doubt an inspiration to my noble friend Lord Goodhart. However, he tabled this amendment—I speak to it in his stead—within the context of this debate and this Bill. It is about coming to appropriate decisions for individuals taking into account all relevant matters. We would not want to prejudice the outcome of what I realise are very important and delicate negotiations. It is our view that perhaps the locus for those decisions is within the Church rather than with the Lord Chancellor.

I am glad to hear that those discussions are continuing and I wish them well. This debate has been useful, not least because I did not know that the noble Earl, Lord Howe, had had that experience. It has been an interesting and fascinating debate. I am reminded of the words of one of my former colleagues. One might expect me to quote Lord Russell, but I shall not. Instead, I shall quote Lord Harris of Greenwich, who was Chief Whip when I entered the House. He said: It is possible to speak in this House on a subject about which you know nothing, but, personally I would not do it". As someone who was raised as a Methodist, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.30 p.m.

Schedule 2 agreed to.

Clause 19 [Appointment of deputies]:

[Amendments Nos. 70A to 72 not moved.]

Clause 19 agreed to.

Clause 20 [Restrictions on deputies]:

[Amendments Nos. 73 to 78 not moved.]

Clause 20 agreed to.

Clause 21 [Transfer of proceedings relating to people under 18]:

On Question, Whether Clause 21 shall stand part of the Bill?

Baroness Barker

In essence, the clause seeks to deal with issues relating to people aged between 16 and 18. When the Bill was debated in another place, my honourable friend Paul Burstow asked the Minister how the Children Act would interrelate with the Bill in relation to those young people. My honourable friend received an interesting and helpful letter from David Lammy on 31 October 2004, which was circulated to other parties in another place. Mr Lammy helpfully stated: The Children Act 1989 applies to all children up to the age of 18, whilst the Mental Capacity Bill applies to people aged 16 and above who lack capacity. There is thus some overlap between the two", and that cases could be heard, either in a family court or in the Court of Protection". He said that Clause 21 enabled the Lord Chancellor to direct that a case be heard in whichever court would be most relevant. Mr Lammy helpfully set out that the family court would be the best place when an issue was likely to be one-off. An issue regarding someone aged 16 to 18 whose incapacity was likely to endure could be heard in the Court of Protection.

I tabled this amendment simply to ask the noble Baroness: given the powers of the Lord Chancellor in this clause, how people who lack capacity, or the carers of those people, influence that decision regarding which court matters will be decided in and which piece of legislation would be paramount. Is there a trigger process that can determine which of the two courts should consider the matter?

The noble Baroness may not have anticipated that question. If she did not, I would be happy for her to write to me to clear up that matter. It is important that we establish the ways in which young people with incapacity and, particularly, their carers, will know which legislation is relevant to them.

Baroness Ashton of Upholland

I am grateful to the noble Baroness. I was not specifically anticipating that point, although it is important. The noble Baroness is right—the intention behind this provision is that the Lord Chancellor, through order-making powers, should be able to determine the circumstances that would be specified in the order concerning how a young person would best be dealt with.

For example, if the parents of a 17 year-old who has profound learning difficulties are in dispute with each other about residence or contact, it might be more appropriate for the Court of Protection to deal with that, since a Section 8 order made under the Children Act 1989 would expire on the child's eighteenth birthday at the latest. It is about making sure that we have that recognition. The objective is to try to determine the circumstances. The noble Baroness raised an important point about ensuring the input from those closest to the young person, where you do not have disputes between them. I shall write to her on that.

Baroness Barker

I am grateful to the noble Baroness.

Clause 21 agreed to.

Clause 22 agreed to.

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

[Amendment No. 79 not moved.]

Clause 23 agreed to.

[Amendment No. 80 not moved.]

Clause 24 [Advance decisions to refuse treatment: general]:

Baroness Ashton of Upholland moved Amendment No. 81: Page 14, line 24, leave out "In this section and sections 25 and 26,

The noble Baroness said: As we have discussed already, advance decisions to refuse treatment are a choice that people can exercise if they wish. As I have indicated to your Lordships, we should remember that they are valid in common law now; therefore they are not new. Our concern in framing provisions in the Bill is to make it clearer to everyone when an advance decision is binding and when it is not. We have spent some time this afternoon discussing the issues around the safeguards to advance decisions. I am pleased to bring forward this amendment and to speak to the other amendments in the group.

The amendments add new safeguards and make it clear that an advance decision will not apply to any treatment that a doctor considers necessary to sustain life, unless strict formalities have been complied with. These formalities are that the decision must be in writing; must be signed and must be witnessed. In addition, there must be an express statement that the decision stands even if life is at risk. Noble Lords will recall that in the course of our deliberations today we talked about the fact that it is not a moment in time when a treatment could be life-sustaining. There are many treatments that are in some circumstances life-sustaining and in others not. It is important that if a person were to say, "I do not wish to receive this treatment", that they would say too, "even if life was at risk". That might be antibiotics, blood transfusions, chemotherapy or whatever.

These amendments amount to new and significant measures to meet concerns that have been raised by your Lordships, both in your Lordships' House and elsewhere, by Members of another place, and by the Joint Committee on Human Rights. These formalities clearly tip the balance of advance decisions even further in favour of preserving life. For example, a verifying statement would make it clear that the maker of an advance decision was fully aware of the possible consequences of their refusal. The amendments to Clause 24 make clear that a partial or full withdrawal of an advance decision does not need to be in writing. That allows people to say when they arrive in hospital, "Forget it, I do not want that advance decision to stand", and not have treatment denied them because they have changed their mind verbally. I am sure that noble Lords will accept that is an important element.

However, if there is an alteration to an advance decision relating to life-sustaining treatment, that would need to be in writing and the formalities complied with. In other words, if someone sought to add in other treatments, or to change the circumstances, they would have to put that in writing, but withdrawing agreement to that advance decision could be done verbally.

I want to make it clear what "in writing" can mean. Noble Lords will appreciate that I had to consider this carefully. In a sense this led us to think about it carefully before bringing it forward. It means that an advance decision can be written by a family member or recorded in medical notes by a doctor or healthcare professional, and it can include electronic records. If P—the patient— is unable to sign the advance decision, it can be signed in his presence and by his direction. That is specifically to ensure that we do not discriminate against people who, for whatever reason, are unable to write but have the capacity to make decisions.

For the purposes of accuracy, I should explain that we remove the words: In this section and sections 25 and 26", from the beginning of Clause 24 because of a number of references to advance decisions elsewhere in the Bill. I beg to move.

Lord Carter

I tabled Amendment No. 86 as an amendment to the government amendment, to ask my noble friend why, in partially accepting the recommendation of the Joint Committee, she has not gone all the way. I remind her that the recommendation was: In most circumstances we believe that it would be reasonable for the Bill to require that advance decisions to refuse treatment should be recorded in writing and witnessed by two independent persons having no financial interest in that person's estate". That is the first point. One person—perhaps a family member—might well have a financial interest in the estate, which is why we recommended that there be two. We said that they should both have no financial interest.

We went on: An exception might, however, be made where the decision was taken during ongoing medical treatment in which case it should be recorded by the doctor in charge of the treatment in the patients notes and independently witnessed". My noble friend said that if something is in the notes it is in writing, but would it be independently witnessed in the notes? In their reply, the Government said: The Government is seriously considering this recommendation and how best we can ensure that advance decisions are made with full understanding of their consequences and free from coercion. However, there is a risk that a formal process for making an advance decision would require a formal process for revoking the decision, thus discouraging people (or making it very difficult for them) from making clear that that they have changed their decision". Presumably the Government have moved away from their concern about the formal process of revoking the decision, because Amendment No. 83 states: A withdrawal (including a partial withdrawal) need not be in writing". That is fine, if we understand it. Their concern was about a formal revocation, and now they are happy with what I would call an informal revocation.

The question of the material interest of one or two witnesses—I shall come back to the number—is important, as was borne out only this week by the first progress report of the Joint Committee on Human Rights. It is an extremely interesting report with a section on the Bill, and I am sure that the Government will respond to a number of its recommendations in this area and others on the Bill. The Joint Committee states, at paragraph 4.23: A number of other procedural safeguards may also be appropriate, for example a requirement that a witness to an advance directive not be a person who stands to gain from the person's death, or employed at the relevant health care establishment which is caring for the person". I wish that I had seen that before I had drafted Amendment No. 86, because I would have certainly added that extremely important point about employment at the relevant healthcare establishment.

There is concern about the question of the financial interest of the witness in the estate of the person making the advance decision. Amendment No. 84, which is in the name of the noble Earl, Lord Howe, makes the same point, but still seems to be based on only one witness. I think that, in drafting his amendment, he has accepted the one witness in the Government's amendment, but his amendment says that, it is not valid if it is formally witnessed by a person who has a material interest in the consequences of the withholding or withdrawal of the treatment". I understand the Government's position. They think that a family member—the husband or wife—may wish to be the witness. Would it not be sensible to allow that by having two witnesses, one of whom could be the family member but making sure that there is another, independent witness who has no financial interest or is not employed by a healthcare employer, which is the construction that the Joint Committee suggested? The matter is important.

The amendment is obviously an attempt to probe the Government's opinion, but there is a strong argument for the recommendation made by the Joint Committee.

5.45 p.m.

Baroness Chapman

My name is added to Amendment No. 87 in this group. It is designed to ensure that a rash or uninformed statement made 20 years ago cannot today create circumstances which could result in life-saving treatment being withdrawn and possibly death. Many people make verbal statements to the effect of, "I wouldn't want to live if that happened to me", or even a glib statement such as, "If that happens to me, flick the switch!".

The intention behind the amendment is to review a possibly life-ending decision as a person's life experiences increase. For example, a 20 year-old might say that he would wish to refuse treatment if he developed a progressive condition. But if he then developed that condition, he might adapt to his new state. Accepting a condition can be similar to accepting the changes to our bodies during the ageing process. At that point, the person could be completely at ease with having treatment and his previous statement would become invalid. This is particularly important when a condition causes communication skills to diminish.

A review of an advance decision would remove the obvious doubt created by a lengthy time span between the statement being made and the situation that a person was now in. A two-year cycle would allow for leaps in medical knowledge and improvements in treating many medical conditions.

Earl Howe

I shall speak briefly to Amendments Nos. 84 and 91, which stand in my name. First, I am quite content to defer to the amendment in the name of the noble Lord, Lord Carter, on the question of conflict of interest. The case that he made is very persuasive and I shall not dig my heels in on the terms of my amendment, which nevertheless was designed to achieve substantially the same end.

I turn to Amendment No. 91. Clause 26 makes clear that, where there is doubt about the validity or applicability of an advance decision or about whether it exists, the matter may be referred to the court for determination. That is a welcome provision, but I should like to probe the Minister on it because we need to understand what might be involved in questioning whether an advance decision exists.

I see several types of situation where the existence of an advance decision might be challenged. One is where a doctor has reason to believe that the incapacitated person was put under some kind of improper pressure to make the decision, and another is where he believes that the individual was mentally incapacitated at the time the decision was made. He might, for example, suspect that the patient had dementia, or the patient might be a drug addict or he might have been suffering from a bout of very severe depression which skewed his judgment when making the decision.

But there is another situation which, if proved, might lead a court to declare an advance decision to be null and void. That is where the person had mental capacity when he made the decision but clearly did not understand what the decision meant. I am thinking of two main ideas here: one is where the person says that if he should ever be thought to be in the last stages of a terminal illness, he would want all treatment to be withheld. The problem might be that, in saying that, he might not appreciate that treatment would include the administration of artificial nutrition and hydration. It might be possible for the person's wife or carer to come forward and say, "But when Jim said 'treatment', what he meant was chemotherapy. He didn't mean that he wanted to be deprived of artificial nutrition and liquids".

The other idea relates to a more complex situation. It is where the advance decision was made in relation to, say, a particular illness and the person in question says something along the lines of, "When I reach such and such a stage in this illness, I do not want this or that medication". But the person might have a completely misconceived notion of what it would be like to experience the illness in question or to receive the treatment that he had decided to refuse. It could be that he made the decision not on the basis of a discussion with his doctor about all the ins and outs of the illness and its treatment but on the basis of something that he had heard from a mate at work which was completely wrong. Again, the man's wife might come forward and say, "But Jim was always told X, Y and Z. He never realised that that was not correct. If he had, he would never have made the advance decision".

That kind of case is not the same as one where the circumstances have changed between the making of a decision and the time when it is implemented. Where the doctor reasonably believes that the circumstances have changed, the Bill allows him to regard the decision as not applicable. The kind of situation that I have in mind has more to do with what the person understood or misunderstood when he signed the piece of paper.

I am the first to acknowledge that we do not want to nanny people. We cannot go around second-guessing people's considered decisions willy nilly, but we should allow for the case in which there is clear evidence that someone did not understand what he was saying, or that he said it on the basis of a completely false premise.

Baroness Knight of Collingtree

Before my noble friend sits down, in addition to the excellent points that have been made, would he include a situation in which, due to the distance of time since the original request was made—the information on which the person acted may well have been correct at the time—medical advance has happened so fast, as it does, that the decision has been overtaken by events? I believe that can and could happen.

Earl Howe

I entirely agree with my noble friend, but the Bill caters for that precise set of circumstances. When there have been medical advances and there has been quite a distance of time between the creation of the advance decision and the time when it comes to be put into effect, as the Bill is worded, the doctor is allowed to take that into account and he may safely treat, if he is in any doubt about the applicability of the advance decision. When the Minister replies I believe that we shall find that the concern of my noble friend has already been addressed, although I completely agree with her that if it has not been, we need to focus on it.

In conclusion, I warmly welcome the Government's amendments to this clause. I agree with the Minister that they buttress the provisions in a most helpful way and we can only but be grateful to her for the care that she has taken in this regard.

Lord Brennan

I wish to speak to the government amendments and to my Amendments Nos. 85A and 89. This is an important group of amendments because it seeks, as my noble friend has just said, to ensure that there are strict formalities and clarity and it seeks to avoid confusion or doubt about how an advance decision should fall to be applied. I welcome that objective.

First, I want to comment on what advance decisions mean in connection with life-sustaining treatment. Then I want to deal with Amendment No. 85A and, finally, with Amendment No. 89.

I invite the Committee's attention to what is meant by life-sustaining treatment. At present, the Bill in its interpretation clause, refers us back to the definition at Clause 4(10): "Life-sustaining treatment' means treatment which in the view of a person providing health care for the person concerned is"— I emphasise the next few words— "necessary to sustain his life". It is important for us to realise that we are not talking only about people who are dying; we are talking about people who are alive but who may need life-sustaining treatment to keep them alive. There is a distinction between that and the natural process of dying.

I am not being critical of the government amendments; I am seeking to probe how this provision will work. How will this life-sustaining treatment provision, in the definition and in Clauses 24 to 26, be considered first by the person making the decision and then by the doctor who may have to implement it?

Clause 24(2)—I presume this embraces a life-sustaining decision—states that, a decision may be regarded as specifying a treatment or circumstances even though expressed in layman's terms". So we have a definition which is medical in its nature— Clause 4(10). We also have a provision for the decision to be in layman's terms—all that is in the hands of the person making the decision. Then comes how it is to be interpreted by a doctor in due course.

In Amendment No. 83 we are first reassured that any alterations to an advance decision still have to be in writing if they involve life-sustaining treatment. So the need for formality and clarity continues in this particular context.

Amendment No. 85 contains a strong provision in what would become Clause 25(5). It states: An advance decision is not applicable to life-sustaining treatment unless—(a) the decision is verified by a statement by P [the person] to the effect that it is to apply to that treatment even if life is at risk". So either before or after the word "even" we should put a bracket which says "not only if life is at risk"; "even if life is at risk" is a matter of emphasis and not distinction.

What happens where, in either the original decision or in the alteration, in layman's terms the person is expected to "verify"—that has a legal ring to it—to make it clear that the decision is to apply to life-sustaining treatment, even if life is at risk? That is not a legal academic question because at Clause 26(2)—sorry to take the matter slowly, but it needs to be looked at carefully—when all this happens, the doctor, usually, does not incur liability for carrying out or continuing the treatment unless, at the time, he is satisfied that an advance decision exists which is valid and applicable to the treatment". So it is up to that doctor or medical person to make his or her decision whether that which is provided for in Clauses 24 and 25 and these amendments is going to work.

I am going to draw a case to the attention of the Committee, and noble Lords may wish to consider it between now and Report. It is called W Healthcare NHS Trust and KH and Others decided by the Court of Appeal on 17 September last year. I regret that it was brought to my notice only yesterday. In it the court expressly considered the circumstances said to have given rise to a common law advance decision. It used these kinds of words to test whether the decision worked. The words were strong. For example, it said: The continuing validity of the advance directive must be clearly established by convincing and inherently reliable evidence". To put it another way: has the person making the decision catered for every possible eventuality? These are strict aspects of the common law which the courts apply. The Bill does not add to or detract from that approach. Implicitly, it confirms that that rigour needs to be exercised by government Amendment No. 85.

6 p.m.

I invite my noble friend to confirm, if not today in precise terms but later, that I have understood the process correctly; namely, that, ultimately, it comes down to whether the doctor has a doubt about whether this is a decision to apply. I repeat—it is a doctor's decision, where he does not have to persuade himself of his own approach. The test, to which I referred Members of the Committee in Clause 26(2), is not to be applied unless he is satisfied that it is valid and applicable.

If I have understood all of that correctly, and this continues to apply, as I have no doubt it will to the Bill when it becomes law as it does to the common law, we are dealing with a stern set of circumstances in the context of life-sustaining treatment. I am gratified that my noble friend the Minister seems to agree with my analysis. I thought that it would be helpful for Members of the Committee to realise that this is how the law will fall to be applied. There should be no vagueness or inattention to proper analysis. There should be very great care, because life is at stake.

By way of encouragement to my noble friend and the Government, perhaps I may now go yet further in their expressed desire to seek to preserve life in the context of advance decisions. On Tuesday, the Government introduced their Amendment No. 13 relating to the "best interests" clause. It was put that a decision-maker, a proxy or doctor in making a decision about best interests should not be motivated by a desire to bring about the death of the person involved. It was a further step by the Government which I and many noble Lords have welcomed.

However, it has a corollary. The proxy and the doctor may be dealt with, but what about the person if his advance decision is motivated by a desire to bring about his own death? I mean a suicidal desire in the strict sense of the word; namely, "I will cause my own death if I can".

Amendment No. 85A involves a very serious topic for the House to consider. I have expressly used the words from government Amendment No. 13 by way of repetition to show that the same objective is at play. People should not be motivated by the desire to bring about a death. I have introduced the amendment because, as Archbishop Peter Smith of the Catholic Church, for example, has said: We believe an amendment [such as this] is needed to send a clear signal that the Bill does not give validity to expressly suicidal advance decisions, and have proposed an amendment that we believe would not overburden doctors in these difficult cases". In substance, that is the amendment, which perhaps we may examine briefly. First, the Suicide Act decriminalised suicide. It did so not to help the suicidal to commit suicide—an absurd result—rather to help the suicidal not to commit suicide, by enabling them to avoid the stigma of the crime if they did or attempted to commit suicide and to have medical treatment, and so on. So the Suicide Act did not create a right to kill yourself. It is a complete misinterpretation of British law for anyone to consider that to be the position.

Note that I used the words "to kill yourself". That is entirely different from someone who wishes not to undergo further futile or overly burdensome treatment. What the Suicide Act also provides, as my noble friend Lord Carter observed on Tuesday, is that even though we have decriminalised suicide, anyone who assists in a suicide—"aids, abets, procures or encourages"—will commit an offence punishable by up to 14 years' imprisonment. It cannot be thought that the Suicide Act in any way sought to diminish the gravity of assisting someone to kill themselves; rather it confirmed it by abolishing the crime of suicide and preserving the crime of assisting a suicide.

Therefore, since there is no right to kill yourself, and since there is no right to die in the context of being able to ask someone to help you to die—see the case of Pretty, which was so important a while ago—what is to be done when we face circumstances in which a person wants to use an advance decision to achieve a suicidal intent? On Tuesday, my noble friend Lady Ashton said: If an advance decision read, 'I wish to kill myself', that is not an advance decision. An advance decision is a refusal of certain treatment. It has to be treatment-specific and circumstance-specific".[Official Report, 25/1/05; col. 1182.] I agree, but that is not the end of the matter, it is the beginning. What is the position where the advance direction states, to use my noble friend's example, "I do not wish to be given antibiotics if I am in the final stages of terminal cancer. I wish to be enabled to die."? Is that tainted because it expresses a decision about treatment with another objective; that of achieving a death?

If it is thought that we are dealing with cases just of the written word, I think not. My amendment talks about an express motivation, a desire to bring about your own death. That does not have to be set out in a written decision. I shall give two examples, one particular and one general. Let us suppose that someone signs an advance decision in a hospital in front of a doctor who, a few minutes before, had heard the person saying to a relative, "I've had enough of this. I want to die. Get me something that will enable it to happen.". The paper is put in front of that patient and she signs it. The doctor has heard the exchange. There is no bona fide intention to withhold treatment within the context of Clause 24; the expressed motivation is to die. If my noble friend responds by saying that that is covered by Clause 26(2) because the doctor can say that the advance decision is not valid, I shall be reassured. However, I do not think it does so with sufficient clarity.

I turn to a more general example. Once the legislation is passed, let us suppose that the Voluntary Euthanasia Society or a similar organisation seeks to explain to people how they can achieve voluntary euthanasia by making advance decisions which comply with the legislation provided that certain words are not used. Is that what the Bill intends to apply in society? I find that very difficult to believe. Let us suppose that several people regularly arrived at one hospital with the same form of advance decision, and it became clear that it was the product of an organisation assisting them to bring about their own death. What would happen, even though the advance decision in its formal terms applies to the provisions of Clause 24?

I have raised these matters because they are very important. They concern intention and motivation, topics that we raised on Tuesday but which I do not want to enter into again. The ways in which advance decisions will work are extremely important for the Committee to consider.

I close by turning to Amendment No. 89, which would amend Clause 25. It concerns a simple proposition which is democratic in its intent. If we are changing the law by making advance decisions, of statutory and binding effect, the place where they will usually be paid attention to is in a hospital. What is the policy of the Government and the view of our society as to the way in which advance decisions will be used or provided by hospitals? Are we to have a say in it or not? Is it to be left to the national health system to implement it in hospitals, some yes, some no? How? Is an advance decision that you sign on day one of going into hospital in year "X" valid 10 years later, or do you get a fresh one each time you go in? What happens?

In America, the states that have this kind of legislation legislated for it; parliament decided. It would be most unfortunate, would it not, if after the passing of the Bill advance decisions came into general use, with a variety of different interpretations and connotations in different hospitals and different parts of the country, without Parliament having a say?

This has an important concluding significance. In 1977, an adviser to President Carter advised him to change social values regarding cost-inducing activities and said that the cost saving from a nationwide push towards living wills was likely to be enormous—more than one-fifth of Medicare expenditure was on persons in the last year of their life. So are we or are we not to have resource-driven change without parliamentary control? That is my concern and I wonder how it is to be dealt with.

Lord Alton of Liverpool

With his usual forensic skills, the noble Lord, Lord Brennan, in the amendments that he has laid before the Committee, has taken us back to some of the crucial life and death decisions about which we are legislating.

During his remarks, the noble Lord drew our attention to the case of W Healthcare Trust v KH and others which was decided in September 2004. It is a case on which we need to reflect as we proceed towards Report stage because, in many respects, it has a bearing on the decisions we are taking. For instance, my noble friend Lady Chapman referred earlier to how sometimes casual remarks might be interpreted as being decisions that a person wishes to be acted upon in the future.

This particular case, for instance, concerned a 59 year-old lady who had been suffering from multiple sclerosis since the middle of the 1970s. She had expressed the wish to a relative at one stage that she simply did not want, if the circumstances arose, any machines to carry on sustaining her life. "I do not want to be kept alive by machines", is what she is reported to have said to her daughter.

Reflecting on those words, it was stated quite clearly in the judgment that that simply was not enough to allow such a procedure to occur. So we have to be clear on the face of the Bill in what circumstances such decisions would be able to be acted upon.

But what happened in this case was not about machines; it was a non-PVS case in which the PEG providing nutrition was accidentally severed from the patient and the issue arose as to whether or not the PEG should be reinserted. It was the view of the relatives that the PEG should not be reinserted and it was the view of the clinicians that it should be. In fact, it was the unanimous view, according to Lord Justice Brooke, of those responsible for her care that it should be reinstated.

I was struck, as was the noble Lord, Lord Brennan, by the force of the judgment in this very recent case— we are talking about the autumn of last year—both where the Lord Justice refers to the decision of the first judge to hear the case and then gives his own view. He said: I cannot say that life-prolonging treatment (in this case feeding via the PEG) would provide no benefit". He had earlier stated: The Court cannot in effect sanction the death by starvation of a patient who is not in a PVS state other than with their clear and informed consent or where their condition is so intolerable as to be beyond doubt". He also said, in my judgment the law has not yet reached the stage where their arguments"— those of the relatives—"can rule the day".

I have two other brief comments about the judgment which relate directly to the amendments of the noble Lord, Lord Brennan. The first judge came to the conclusion that it was in the best interests of the patient to accede to the unanimous wish of those who were responsible for her treatment. Mr Justice Brooke says, judges have to apply the law as they find it. English law, as it stands at present, places a very heavy burden on those who are advocating a course which would lead inevitably to the cessation of a human life. In my judgment, it is impossible for this court to interfere with the judge's judgment". Elsewhere in these proceedings Mr Justice Munby is quoted from the case HE v A Hospital NHS Trust [2003], a relatively recent case. He said: Where, as here, life is at stake, the evidence must be scrutinised with a special care. The continuing validity of the advance directive"— a point which has been made throughout our debates about the importance of having continuing care programmes— must be clearly established by convincing and inherently reliable evidence". The noble Lord made that point when addressing his amendments.

6.15 p.m.

There are nine amendments in the group, and I should like to say why I support a number of them and have added my name to some of them. Before I do so, I say in parenthesis, that in tabling Amendment No. 86, the noble Lord, Lord Carter, has, as the noble Earl said when he addressed Amendment No. 84, done the Committee a service by bringing the issue of conflict back before us. I support what he said and agree with the noble Earl that it probably does the job better.

I strongly support the buttressing effect the noble Earl referred to concerning his Amendment No. 91 which deals with undue influence, understanding and capacity. Although the Minister may say that it is otiose and is already provided for in the legislation, sometimes it is worth saying things twice when they are of such importance.

I, too, welcome government Amendment No. 85. It properly provides that advance decisions are not applicable to life-sustaining treatments, unless they are in writing and witnessed, like a will. This is therefore very welcome. However, as in the case of second opinions, to which I referred earlier, it is worth remarking that this issue could have been avoided if the template of the Scottish legislation—the Adults with Incapacity (Scotland) Act 2000—had been followed.

I was looking at the Green Paper which preceded the Scottish Act, in which the Scottish Executive made this important statement: We have examined carefully a number of other proposals made by the Scottish Law commission, by the Alliance for the Promotion of the Incapable Adults Bill, and by others. Such proposals have included legislation to give clear legal force to Advance statements ("Living Wills") and to provide for the withholding or withdrawal of treatment from patients who may be in … PVS. Although such proposals have the sincere support of particular interest groups, we do not consider that they command general support. Attempts to legislate in this area will not adequately cover all situations which might arise, and could produce unintended and undesirable results in individual cases". We should take that warning to heart as we consider doing precisely that.

Paragraph 2.29 of the Scottish code of practice for persons authorised to carry out medical treatment or research under Part 5 of the Act had this to say about advance decisions: A competently made advance statement made orally or in writing to a medical practitioner, solicitor or other professional person would be a strong indication of a patient's past wishes about medical treatment but should not be viewed in isolation from the surrounding circumstances. The status of an advance statement should be judged in the light of the age of the statement"— a point made by my noble friend Lady Chapman— its relevance to the patient's current healthcare needs, medical progress since the time it was made"— a point made by my noble friend Lady Knight of Collingtree— and the patient's current wishes and feelings. An advance statement cannot bind a medical practitioner to do anything illegal or unethical. An advance directive is a document which specifically refuses particular treatments or categories of treatment. Such documents are potentially binding. When the medical practitioner contemplates overriding such a directive, appropriate guidance should be sought". According to an independent survey of doctors in Britain conducted by Opinion Research Business for the Right to Life organisation in May last year, 76 per cent of doctors indicated that they shared the concerns of the House of Lords Select Committee on Medical Ethics that patients could deprive themselves of medical treatment developed after they had signed their directives. Almost half the doctors polled— 49 per cent—would seek advice from a colleague, which addresses the point about a second opinion, if they had an advance directive saying "no tube feeding" and were unable to confirm the directive at the time of treatment. Most doctors, some 71 per cent, claim that they would disregard an advance directive in circumstances where they felt that it would cause harm to the patient or did not seem to apply.

We should bear in mind what the noble Lord, Lord Brennan, said about protection, a point to which I shall return later. It is important that we are clear about an issue raised by the noble Lord, Lord Carter, in our proceedings on Tuesday about Part II of the Suicide Act 1961, and how that would affect a doctor in the circumstances described earlier.

We should also reflect on what the noble and right reverend Lord, Lord Habgood, said to us on Tuesday. He said that it was not too late to reflect further on the desirability of not making these advance directives statutory. If we are not prepared to reconsider that, we should at least agree Amendments Nos. 85A and 87 as safeguards.

The Joint Committee on Human Rights has written to the Government asking whether the Government will be amending Clauses 24 to 26 to reflect the decision in Burke that advance decisions requesting treatment, including ANH—artificial nutrition and hydration— should be given the same status as advance decisions for refusing treatment. That is an important point. We need to know the Government's response to that. In his opinion on the Mental Capacity Bill, Richard Gordon QC makes the following point: There is no safeguard on the MCB (though the Code attempts to address the difficulties) for ensuring that advance decisions are properly scrutinised and true effect is given to the then competent patient's wishes". The committee's report builds on that point in paragraph 2.46. It states: It is not clear to us why advance directives should not carry the additional safeguard that they should be required to be in writing. Second, the classification of ANH as "treatment" may not be well known to laypeople". That point has already been made in your Lordships' House.

It is clear that the safeguards around advance decisions are far from satisfactory and place incapacitated patients at risk of having their Article 3 and Article 8 rights infringed. Disability Awareness in Action had this to say about the advance decisions: The MCB will make such instruments legally binding, which for anyone deemed 'incapable', whether through impairment or through temporary sedation (in hospital) has worrying implications. One of the strongest messages that comes from our society today is that if you are disabled person, or a sick person or an older person, you can no longer have control over your own life and that our lives are not worthy of living. This is particularly the case for disabled people, sick people and older people who require assistance to look after themselves. The MCB will create an environment in which older and disabled people (with capacity) are placed in an impossible situation at an impossible time with a risk of undue pressure placed on them to sign away any future right to decision-making by the completion of a legally binding Advance Decision document, whilst those people deemed 'incapacitated' are unlikely to ever experience the luxury of having such a choice. Disability Awareness in Action continues: Advance Decisions, which are already operational in a few hospitals"— it cites Hammersmith Hospital Trust, which was alluded to by the noble Lord, Lord Clarke of Hampstead, in our Second Reading debate— do not create greater choice, they actually limit choice. The potential for abuse of this kind of document is enormous—there is no protection from the pressure an individual may feel from others to opt out of receiving life saving treatment, and there is no safeguard in place if such a person has a change of heart once they are no longer able to communicate such a decision. Discussions about Advance Decisions are not possible until we are part of a society that supports and celebrates diversity and where treatment decisions are made without reference to", cost and benefits—a point to which I referred during the Second Reading debate in the light of remarks made by the noble Baroness, Lady Warnock. She said that if people wanted to keep people alive, the cost should fall on the relatives. That is indicative of thinking that is increasingly prevalent in our society. Advance decisions do not appear in the Scottish Adults with Incapacity Act 2000.

I should like briefly to draw the Committee's attention to the actual words of Amendment No. 85A, on page 13 of the Marshalled List. I and my noble friend Lady Masham have put our names to the amendment tabled by the noble Lord, Lord Brennan. It says quite categorically: if it is expressly motivated by a desire to be assisted to bring about P's death". That refers to advance decisions that are suicidally motivated, as the noble Lord, Lord Brennan, said.

I do not intend to reiterate everything that I said on Tuesday. I can promise the Minister that—and I know that she is looking at the clock, but these are important questions and none of us is going to be stampeded through the amendments. There are nine amendments in this group, and they are very different from one another, so I hope that the Committee will bear with me.

We still need clarity on how Section 2 of the 1961 Act will be affected by this Bill, and the Government need to tell us today how it will affect a medical professional faced with a patient who has attempted suicide when a note requires him to do nothing. The noble Lord, Lord Brennan, gave an example of someone who said that he did not wish to be treated with antibiotics. Will people such as that be open to prosecution? There are 14-year tariffs involved here, and we need to know. Without a satisfactory answer, it underlines why an amendment of this kind is so necessary.

Amendment No. 87, moved by my noble friend Lady Chapman, is an important amendment that seeks to ensure that advance decisions must be constantly reviewed and updated, otherwise they will cease to be valid and applicable. The Government may point to Clause 25(4)(b) and (c) and say that the Bill already covers that point, but it is important to be more specific. The Joint Committee on Human Rights, in its most recent report, argued: Advance directives should be time-limited to guard against the danger of directives being overtaken by developments in treatment and medicine or being forgotten about by a person who would have revoked it had they remembered its existence". The Joint Committee also identified two other safeguards which it believes should be included in the Bill. I am very happy to talk outside the Committee to the Minister about those, and the importance of incorporating them.

Finally, on Amendment No. 89, at Second Reading the noble Lord, Lord Clarke of Hampstead, referred to the tick-box procedures which he said had been used at Hammersmith General Hospital. The Minister disputed that, but, whether it is true or not, we need to safeguard against National Health Service bodies promoting advance decisions through which patients would decline medical treatment in circumstances that would be of more benefit to the trust than to the patient. I refer the Minister to the letter's page in today's Times, on which Stephen Trott, the Rector of Pitsford with Boughton in Northampton, makes very concisely the point that I would prefer to make at greater length. He said: How much protection would there be in practice for an elderly, frightened and isolated patient in an anonymous nursing home, under pressure from relatives to put an end to the rapid drain on the family inheritance? How much pressure would there be upon doctors, conscious of scarce resources, to clear beds in hospitals? How quickly would society discount life's final stages, as it has done since the Abortion Act of 1968 in respect of life before birth? Once the threshold is crossed, assisted dying will indeed come to resemble a veterinary system, with comparable criteria for assessment of the value of human life. Convenience and cost will feature prominently in the calculation". Amendment No. 89 would require any form of advance decision to be approved by an affirmative resolution of Parliament. However, before Report, there would be value in extending the scope of Amendment No. 89 to include care homes. I hope that the Minister will consider that point, too.

Lord Carter

I shall be extremely brief, but the noble Lord, Lord Alton, picked up a point made by the noble and right reverend Lord, Lord Habgood, and the noble Lord, Lord Walton, about this business of advance decisions being advisory. There has been an argument that they should be excluded from the Bill altogether. We considered this important matter in the Joint Committee. We considered that if advance decisions were not to have statutory force, it would leave in place the common law provisions which have made valid and applicable refusals effective, but the proposed powers of donees, deputies and the Court of Protection in the Bill to make healthcare decisions would have no common law equivalent. That is the strongest argument about them being given legal force.

We went on to state that if the Bill contains no mention of advance decisions to refuse treatment— that is the exclusion argument—and even if they are advisory and have no statutory force, the Court of Protection cannot be given a statutory power to decide whether an advance decision has been validly made. That would mean that the High Court would continue to resort to its inherent jurisdiction in relation to adults who lack capacity to resolve such matters. In other words, if we are to have the whole hierarchy of the donee, the deputy and the Court of Protection, all of which are built into the Bill, we will have to give legal and statutory force to advance decisions.

6.30 p.m.

Lord Alton of Liverpool

I am grateful to the noble Lord, Lord Carter. I have followed that argument and I agree with him that it looks as though the Government are determined to go in this direction anyway. I understand the reasons for that, and there are arguments on both sides. However, if that is to be the case, does he not accept that Amendments Nos. 85A and 87 would therefore be a useful contribution to addressing at least some of the concerns that noble Lords such as the noble and right reverend Lord, Lord Habgood, raised?

Lord Carter

I am still puzzled by Amendment No. 85A, which states, expressly motivated by a desire to be assisted", and the whole business of the Suicide Act.

Baroness Finlay of Llandaff

Slightly contrary to the tone of what has gone before, I thank the Government for having done what I have really wanted them to do, which is to ensure that these advance decisions are in writing and situation specific.

I have been trying to look at this from the clinician's point of view. I already do this with patients: we sit down and discuss matters that are very situation specific. In such cases I will record the matter in the case notes and get the patient to sign them. If possible, I will have someone in to witness. I can see that it is not practical to have two people come in to witness. I can see that it could be very complicated to find a witness in out-patients who has nothing at all to do with the healthcare establishment. Sometimes, in such cases, a manager who is trying to act independently will come in to witness the conversation. That is incredibly helpful.

I have added my name to the amendment seeking to extend the time-limit for the validity of such statements for the following reason. The difficulty in clinical practice is that one deals with shades of grey, whereas we are trying in the Bill to address the issue in black and white. The situation that I have described already pertains. I hope that the Committee will feel that, when a patient loses capacity, it is good practice to try to ascertain very specifically what he wants regarding a very specific aspect of his care.

Under the provision as currently worded, the clinician should go back and renegotiate. If the patient signals orally—as he probably will because he will be too ill to signal in writing—that advance decision will immediately fall and we are back to treating the patient. I have been in exactly that situation on many occasions when patients have decided that they want to have a bit of treatment after all and to give it a go. Some people change their mind as they progress through their disease but some do not. Some find it very helpful not to feel continually pressurised into doing something that they feel inside themselves is futile.

If we can deal with cases on a situation-specific basis, we can distinguish the futile from the suicidal intention. If my reading of the Bill is correct, Clause 58 will provide protection against suicidal intent. So when a patient is brought into casualty clutching a bit of paper which has been duly witnessed or whatever— and which may be part of the suicide pact—the casualty doctor on duty can look at it and immediately say, "That is not valid". She can record in the notes that it is not valid because it is a suicide note. She will, therefore, be able to go ahead and treat, supposedly against the patient's wishes, in order to sustain life.

I can see a possible advantage in having a double statement against suicide in order to avoid situations where people say that they want a specific treatment in order to hasten death. As I understand the provision as drafted, however, they will not be able to do that. They will only be able to say what they do not want done, but they are still entitled to good care and to supportive care. If they do not have good and supportive care, that would go against the wording of the Bill. They would have been denied the care that they ought to have. So all care would continue and the only thing that they are refusing is that very specific treatment. The situation where someone makes a vague statement, which is reported second-hand by the family, is precisely the thing which I had argued was incredibly dangerous behind the scene with the Government before the Bill ever appeared on the Floor of the House. I am very grateful that they have made the measure so specific. Unlike other noble Lords who have spoken, I welcome what the Government have done.

Baroness Greengross

I agree with the noble Baroness, Lady Finlay—the Government have taken an enormously important step by their insistence that advance directives are situation specific. They are not about assisted suicide. I am not a doctor or a lawyer but I have worked on end-of-life decisions for older people for a long time. At one time I had the enormous privilege of working on those decisions with the right reverend Prelate the Bishop of St Albans. That was a great privilege. We have discussed these issues at great length together.

I say to the noble Lord, Lord Brennan, that I very much respect his views and the brilliant way in which he argues them. However, in my view, for what it is worth, when the person he quoted said, "I do not want treatment. I do not want antibiotics. I want to be enabled to die", that meant that person did not want to be prevented from dying. That is what refusing treatment is about. It is not about committing suicide. I believe that is in line with the vows, and beliefs of the doctor profession in this country. Therefore, I consider that the Government have made very important concessions. I support the Government and not these amendments.

Baroness Masham of Ilton

I have added my name to two amendments in this group. However, all the amendments are very important. This debate, if it has done anything, has shown the Committee how complex the whole subject is. We are discussing life and death decisions. The noble Lord, Lord Brennan, is a lawyer. It is important that we are clear, as it is the law that will interpret it on the ground, that those people who want to live will be able to live, and that there will not be a complex muddle on the ground. I believe that is what the people outside are now looking to the House of Lords to sort out. I hope that we will be able to do that because it is not completely clear.

I have great admiration for my noble friend who is a doctor in palliative care and who works with life and death situations in her working life. But then there is the noble Lord, Lord Brennan, a lawyer, who says something different. Then there is my noble friend Lord Alton who says—I have my name to this amendment—that there should be a two-year break for people to be able to change their mind. Treatment changes, attitudes change, and I hope that the Government will agree to that amendment. But 1 do hope that tonight the Minister will be able to give us some assurances that all those people who want to live will be able to do so without having fear of going into hospitals or care homes.

Baroness Barker

I rise briefly to make a small contribution to what has been an enormously helpful debate in total. I do so because my colleague in another place, Paul Burstow, was instrumental, along with Members from all sides in another place, in doing the work that enabled the Government to reach this point. They should be congratulated, as should the Government. They are trying to walk a very fine line and legislation is not always a great means by which to do that, but the amendment is right.

The noble Baroness, Lady Greengross, was absolutely right. This is not about assisted suicide, this is about people making very specific statements about particular forms of treatment which they do not wish to receive. That, in itself, does not constitute a refusal of other treatment or an expression of a wish to be assisted to commit suicide. That is completely distinct.

As someone who stands back and listens a great deal in such debates, because I am not a professional in any of the key disciplines involved, I believe that the clarity achieved by the Government in their amendments is probably as near as it is possible to achieve. I have some sympathy for the Government, given that some people, for good and honourable reasons, will never be satisfied with any statement of this kind.

I say to the noble Baroness, Lady Masham, whose views and approach to such matters I have listened to all the time I have been in this House—she is one of the best and most persistent advocates for patients who receive bad treatment across the NHS—that I truly appreciate her dilemma. Members of this House have different views. All of their contributions are made from entirely honourable motives. For me, this is ultimately a medical decision on which I would wish to listen to a doctor, rather than to a member of another profession, only because a medical situation changes so fast. That is why it is so important that the Government introduce amendments which enable statements to be withdrawn. Having said that, the requirement for a statement to be in writing is an enormous step forward and for which many people have worked to obtain. This House should be grateful for that and accept it.

6.45 p.m.

Baroness Ashton of Upholland

My Lords, this has been a very important debate.

I wish the noble Lord, Lord Rix, a happy birthday as he has joined us briefly. He will not mind me saying that he is 81 today. Also, the birthday of the noble Earl, Lord Howe, is approaching rapidly—I believe that it is on Saturday.

The noble Lord, Lord Alton, was right to say that I was looking at the clock. I was conscious that the noble Baroness, Lady Knight, has sat for an enormous amount of time waiting to speak to an important set of amendments that we shall not reach this evening. I understand what it is like to sit here waiting. We shall, of course, deal with the important issues that the noble Baroness wishes to raise when we return to Committee, and I thank her for staying to contribute this afternoon. I apologise, but, the noble Lord, Lord Alton, and my noble friend Lord Brennan wished to raise some important matters. That was why I was looking twitchy—it was for no other reason.

I am grateful for all the contributions to the important debate this evening. I say to the noble Baroness, Lady Barker, that I recognise the contribution that her honourable friend Paul Burstow and many others have made on this subject. It is always difficult to consider whether one puts in legislation a particular way of doing something. One must be mindful, as we have been, of not making it so difficult for people to do what we think would be a good thing that it becomes impossible.

The weight of opinion, not least from my noble friend Lord Carter—who always seems to get his way when it comes to work that I am in involved in—has been important in ensuring that we recognise how critical it is to have advance decisions done in the way that we have said. I am grateful for the welcome support that was underlying most of what noble Lords said. I do not think that any noble Lord said that what the Government did was wrong, but perhaps there was more enthusiasm in some quarters than others.

I was struck by what the noble Baroness, Lady Masham, said: "If I want to live, I should be allowed to live". I could not agree more. The Bill, above anything, is about life and celebrating life, and celebrating the right of people to quality of life; to not be labelled or discriminated against but to live their lives and participate in their own lives as far as possible. That is the fundamental core of what we seek to do. and that is why I have approached this Bill, as a Minister recently joined to its work, with enormous enthusiasm, because it is really important.

What the noble Baroness, Lady Greengross, said about being prevented from dying is really important. I could not have expected a better speech than that from the noble Baroness, Lady Finlay. I hope that all noble Lords, both those present and those who were not able to be present, will read that, because there speaks experience, and there speaks real knowledge and compassion. If I were in that position, I hope that the noble Baroness would be looking after me.

It is important to consider where these decisions are made. As the noble Baroness, Lady Finlay, has said on a number of occasions during proceedings on the Bill, they are often made on a day-to-day basis, in all types of circumstances and they are made in conjunction with the real need to ensure that basic, high-quality care is provided and to recognise that dying is as natural as living. We all find that difficult at times—I certainly do—but it is important. People should have the opportunity to die at home; to die in circumstances that are right and proper for them. That is completely different from someone committing suicide; I am talking about the natural process of death. That is an important distinction, and one that my noble friend Lord Brennan and the noble Lord, Lord Alton, and others, sought to make. It is true that we have to be absolutely clear on that.

A number of noble Lords, not least my noble friend Lord Brennan and the noble Lord, Lord Alton, referred to Section 2 of the 1961 Act. I will not read out that part of the Act, but advance decisions do not allow a doctor, or force a doctor, to do anything that would otherwise be illegal. The administering of drugs in lethal doses is not allowed. A valid advance decision is not regarded by the courts as suicide. A doctor who follows a valid, applicable advance decision is not aiding a suicide. Clause 58 is critical in this, and it is important to remember that that makes clear that the Bill does not change the operation of the Suicide Act.

Without taking too much time—though I recognise the importance of this debate—I want to work through the specific amendments and try to deal with some of the additional points raised on the way. I appreciate that the noble Earl said that he was happy to join in with the amendment tabled by my noble friend Lord Carter. Amendments Nos. 84 and 86 are about witnessing a signature to an advance decision, and the question of whether anyone has a financial interest. I understand and appreciate what is behind these amendments. My difficulty is that they are unworkable in practice. We must remember that you make the advance decision when you have capacity; it is your personal choice. We have made this requirement that says that in these circumstances you must make sure that you write, you sign, and someone must witness the signature, if it applies to life-sustaining treatment.

Let us think of a real-life situation. The noble Baroness, Lady Finlay, asked how on earth you got two signatures and so on. I wonder how easy it would be for a doctor to know whether the person who witnessed the signature had a material interest in consequences of withholding or withdrawing treatment. The witness himself may not even know; we talked earlier about wills and whether someone would know their contents. Even children may know that they may inherit, but they may not know on what basis, in what context, how much and so on. That applies even more so to anyone who was not immediate family.

We could not really expect doctors to ask the person who signed the advance decision about the potential beneficiaries from their death. It would be impractical, not least because we are talking about people who lack capacity. I cannot go along with the idea, because it would not work. I understand the intention and am always willing to keep talking about such matters, but we could not make it work in the right way.

Earl Howe

I want to clarify what the noble Baroness said. Surely the point at issue is not whether, at the time that the decision comes to be implemented, the witness has an interest in the estate of the incapacitated person. It is a matter of propriety. Just as we have a law that says that you may not be a witness to a will if you are named as a beneficiary in it, it would be a simple matter to verify at the time that the instrument is created whether the witness was a beneficiary of that person's will. It is not therefore up to the treating clinician to have to verify anything about the status of the witness at the time that he comes to consider whether to put the decision into effect.

Lord Rix

I apologise for my late arrival at this very important debate. I am celebrating my birthday today, so perhaps am one year nearer having to make an advance decision. What the noble Earl said was correct. The person making the advance decision can ensure—perhaps in writing on the advance decision— that the witnesses are not beneficiaries in any shape or form.

Baroness Ashton of Upholland

I identify two problems with what Members of the Committee have said. The first is that I am not sure that, if I were making an advance decision, I would want the people witnessing it to know whether they would benefit from me at that point. The second problem is that I do not know who the noble Earl thinks will verify the fact. If you make an advance decision in writing in the way in which we have described and have it witnessed, there is no one to verify that fact until the point at which the advance decision will be used. Therefore, there will be no one to say that a person may have a financial interest.

I understand the logic, which is that one is seeking as many protections as possible against people being coerced or pressurised. However, we are talking about people who have capacity making a decision about a situation-specific form of treatment in the future that they wish not to have, and having someone witness that that is what they have done. As the noble Baroness, Lady Finlay, said—we have accepted it in the spirit of the government amendments—that might include a clinician, witnessed by someone else. That brings us to the point about it not being someone who is part of the establishment of a hospital trust. A doctor or nurse would be an employee of the trust, but no one would suggest that, in witnessing, they were doing anything other than verifying that something was proper, valid and appropriate.

So I have a problem with that, but am very willing to talk more. My problem is not what is behind the amendment, but whether it is workable to do that without getting into problems with which we cannot deal. No doubt Members of the Committee will come back to that if they wish to discuss it further.

The noble Earl gave examples about treatment. Clause 24(l)(a) is specific. He talked about Jim's wife commenting to the effect that he did not understand what he was doing when he made the statement. If that was the case, the statement would be invalid. That is very straightforward. We have made it absolutely clear that, if there is any doubt whatever, the Bill is tilted very much in favour of treatment. That is a very different position from the common law at present.

Therefore, a very important set of safeguards is included in the Bill and we should not lose sight of that. The noble Baroness, Lady Knight, who is no longer in her place, spoke of medical advances overtaking events, and the noble Earl, Lord Howe, verified what was in the Bill, for which I am very grateful. If the circumstances have changed and treatment has moved on with medical advances and so on, although a person might have said, "I would not like this particular treatment", a clinician can provide treatment because the circumstances are not as they were. To quote the example given by the noble Earl, there is no question in my mind that if Jim's wife said, "Well, he wrote this but he didn't understand what he was doing", the decision would be completely invalid. There is no question but that the physician would continue to provide the treatment. We need to be very clear about these issues because they are terribly important.

I turn to Amendment No. 87, which aims to put a shelf-life on an advance decision. We considered this issue at length because we wanted to question whether there was a need to renew a decision. The difficulty that we ran into was that any kind of shelf life put on a decision is necessarily arbitrary, and that then raises questions about whether advance decisions do or do not qualify. If the shelf life was five years, would the decision qualify after five years and one month had passed? The nature of the decision that one might take about a particular treatment in a particular set of circumstances could be outdated in months. Treatments could move on and situations could change, but other situations would stand the test of time. So we have approached the issue in a different way. We have included in the Bill a test of whether the decision is valid and applicable at the time that the decision is used.

Of course, I recognise that people should think carefully about updating such decisions. I support that idea and shall consider what might be done in the code of practice. But we are very clear that if a person does not anticipate the circumstances which then arise, the decision is not valid. We are constantly trying to say, "You have to be crystal clear about what you meant and you have to be crystal clear that the circumstances have not changed". We think that that gets us to where the noble Baroness, Lady Chapman, wants us to be but in a better way because it does not assume that a time limit will make a difference. However, I accept that the noble Baroness also believes that we should be saying to people, "It's probably not a bad idea to think again and review what you have written". But, in terms of validity, I think that the test that we have is right. I hope that that will assist the noble Baroness in thinking through the matter.

Amendment No. 85A, which was spoken to very eloquently by my noble friend Lord Brennan and the noble Lord, Lord Alton, concerns an advance decision being "expressly motivated". As my noble friend said, and as the noble Lord, Lord Alton, knows very well from our discussions, the Government were minded to introduce Amendment No. 13 to make it clear that, when looking at all the issues surrounding best interests, you cannot be expressly motivated by a desire to cause someone's death.

In responding to my noble friend Lord Brennan, I shall talk about the law, but I hesitate to do so because I recognise that I am in the presence of an expert second to none. I think that my noble friend accepts that the legal framework underlying advance decisions is different. I say to the noble Lord, Lord Alton, that the reason we are not in the same position as Scotland because Scotland does not have the common law basis, and, when legislating, it would have been wrong to ignore the whole area of mental capacity. It is very important that we deal with those issues and deal with them effectively, not least by including the safeguards that I have described.

Advance decisions affect only the people who choose to make them. They are decisions taken by the person concerned and not by a third party. Briefly, there are three reasons why I have difficulty with these amendments. First, they are inconsistent with the common law and the decisions that competent adults can take. Secondly, as I have already indicated, there are already significant safeguards to ensure that a doctor does not have to follow an advance decision if he is concerned that it might be expressly suicidal and thus not made with capacity.

I am fairly confident that I could address very quickly any example that noble Lords can come up with by looking at what the Bill says. We would be able to deal with someone arriving who clearly wishes to kill himself. No doctor would be able to say that that is an advance decision of the kind that I have described.

7 p.m.

Thirdly, the difficulty is whether this can be made workable. It is difficult because of betraying motives. In a sense, one knows that someone has a motive by what they say as well as by what they do. If one said, "I do not want this treatment because I want to kill myself, that would be an expressed desire and the doctor would act accordingly. Of course, anyone who was really serious about making an advance decision would try to sidestep that kind of language. So we have to be very clear as we could end up making the law less safe. People would in a sense move away from betraying what we would want them to do, which is express a suicidal motivation.

I do not believe that any suicide note would meet this Bill's stringent conditions anyway. If noble Lords look at the Bill again between now and Report, they will recognise that the Bill makes doctors freer than they are currently to give appropriate treatment in someone's best interests if they arrive at A&E having made any kind of suicide attempt. We are absolutely clear that when in doubt, doctors treat. We are absolutely clear that they are covered in terms of liability. That addresses all those concerns expressed by noble Lords and in another place that doctors could be sued or that doctors would not be clear about what to do. It is absolutely clear. If someone arrives, having attempted to kill themselves, a doctor can treat him or her regardless.

I know that these are very difficult issues. We have worked through with the noble Lord, Lord Alton, a couple of real examples that concerned him and we were pleased to do. I noticed noble Lords straying into talking about casual remarks. The noble Lord, Lord Alton, gave an example about a peg being removed from a patient. Such matters are not advance decisions; casual remarks are not advance decisions in this context. They have to be written, they have to be situation and treatment specific, and they have to be in layman's terms. It is important that people are able to write these decisions. Doctors can interpret layman's terms very effectively. We would not expect people to know the clinical names for particular things because that would be inappropriate; for example, antibiotics are antibiotics but they are not to a doctor because there are many different types.

Lord Alton of Liverpool

The point I was making from the judgment was precisely that: as it was just a casual remark, it certainly could not be taken as binding on the doctors who were treating the patient. The second point is that the peg was not removed; the peg had come apart accidentally and the ruling was that the peg should be reinserted over and above the wishes of the relatives of the patient on the basis that nutrition and hydration should be continued.

Baroness Ashton of Upholland

Indeed, in a sense, the noble Lord and I are in agreement about that case. It is absolutely right that the patient should have continued to be treated.

Amendment No. 89 says, prescribed by regulation made by affirmative resolution of Parliament". In effect, that is trying to find a standard format for advance decisions. Again, in practice we need to have a more flexible approach, partly because many people in this context will make decisions on treatment that they do and do not want, which will be recorded in their hospital notes, as the noble Baroness, Lady Finlay, said. It would be very difficult to think about doing that in a prescribed way.

I am not sure—I do not think this has been suggested, but I want to add my voice to it—that we want NHS trusts providing forms. That would take us into a different world. Hammersmith Hospital has been much maligned. It was not doing what the press said. It was carrying out a survey of patients, and that was all. It was not trying to do advance decisions. I am very sorry that we keep hearing about that. It did not happen. I do not think any of us would be happy—the noble Lord, Lord Brennan, raised this point—if one were handed an advance decision form as one arrived at hospital. That is not the way we want to go at all.

Turning to Amendment No. 91, there are three things for the court to consider in determining whether a decision exists: whether it was made under undue pressure; whether the person understood; and whether he had capacity at the time. I agree that the decision should be unambiguous; it should be considered: and it should not be made as a result of undue pressure. The courts will ask those precise questions.

The key is that the person has to have capacity in order to make the advance decision. He must be able to understand, use and weigh the information, which goes back to our discussions on Clause 3. It will include information about the reasonably foreseeable consequences of deciding one way or another. Case law also makes it clear that undue pressure can affect capacity, where a person's "will is overborne". So, if the court is making a declaration about an advance decision, all aspects of the legal tests for capacity will be investigated.

This has been a very important and interesting debate. I am very grateful to all Members of the Committee. I hope that in studying what we have said today noble Lords will go back to the Bill, which will include the government amendments, which I hope will be passed, and see that in all these areas we have protected doctors and patients but kept what is already a common-law right: that when you have capacity you can make decisions about your future.

On Question, amendment agreed to.

[Amendment No. 82 not moved.]

Baroness Ashton of Upholland moved Amendment No. 83: Page 14, line 36, at end insert— (4) A withdrawal (including a partial withdrawal) need not be in writing. (5) An alteration of an advance decision need not be in writing (unless section 25(5) applies in relation to the decision resulting from the alteration).

On Question, amendment agreed to.

[Amendment No. 84 not moved.]

Clause 24, as amended, agreed to.

Clause 25 [Validity and applicability of advance decisions]:

Baroness Ashton of Upholland moved Amendment No. 85: Page 15, line 16, leave out subsection (5) and insert— (5) An advance decision is not applicable to life-sustaining treatment unless—

  1. (a) the decision is verified by a statement by P to the effect that it is to apply to that treatment even if life is at risk, and
  2. (b) the decision and statement comply with subsection (5A).
(5A) A decision or statement complies with this subsection only if—
  1. (a) it is in writing,
  2. (b) it is signed by P or by another person in P's presence and by P's direction.
  3. 1511
  4. (c) the signature is made or acknowledged by P in the presence of a witness, and
  5. (d) the witness signs it, or acknowledges his signature, in P's presence."

[Amendments Nos. 85A to 87, as amendments to Amendment No. 85, not moved.]

On Question, Amendment No. 85 agreed to.

[Amendment No. 88 had been withdrawn from the Marshalled List.]

[Amendment No. 89 not moved.]

Clause 25, as amended, agreed to.

Baroness Andrews

I beg to move that the House do now resume.

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

House resumed.

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