CMQ - February 2005

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Lord Alton's Speech on the Mental Capacity Bill

Hansard 13 January 2005 - 18:27

Lord Alton of Liverpool: My Lords, I support the principle of creating a statutory framework to protect those individuals who lack mental capacity. I recognise also that the Bill presents a once-in-a-generation opportunity to remedy the deficiencies that currently exist and to safeguard the rights and interests of adults lacking mental capacity. That is why it is so important that we get it right and why we must adequately address the fears expressed in your Lordships' House today and outside as well. In that context, I especially welcome the moving and powerful maiden speech of my noble friend Lady Chapman and also the speech of my noble friend Lady Masham.

I should like to flag up three key areas to which I hope your Lordships' House will give detailed consideration in Committee and on Report. Most of my remarks will be about the withholding and withdrawing of medical treatment, including nutrition and hydration delivered by artificial means—often called euthanasia by omission. If that threat were not in the Bill, the noble and learned Lord the Lord Chancellor would not have pledged to your Lordships' House earlier today to introduce amendments at a later stage. I should like to mention, secondly, the definition of "best interests" in the Bill and, thirdly, medical research on the mentally incapacitated.

The noble Baroness, Lady Ashton of Upholland, who will reply to the debate, will be aware of my long-standing interest in the Bill. On a number of occasions over the past year or so, I met with her predecessor, the noble Lord, Lord Filkin. Those meetings were extremely useful. Along with others who have expressed appreciation of Ministers and officials for their willingness to engage, I should like to put on record my particular gratitude to the noble Lord, Lord Filkin. I pay tribute to him for the painstaking and sensitive way in which he addressed many outstanding anxieties. For example, some have suggested that the new Clause 58, to which I will refer again in a moment, is otiose and unnecessarily included in the Bill. I know that the noble and learned Lord had a battle even with officials in his own department to ensure that it was included, so important is it that people outside your Lordships' House know that we are committed to opposing the introduction of euthanasia by commission or omission—a point to which I will return.

During the Bill's passage, which began in another place, the debate was dominated by this issue of euthanasia. However, putting that aside for a moment, there are other aspects of the Bill that are deficient and that can be improved upon—not least the inadequate provision of independent advocacy to which the noble Lord, Lord Rix, and others referred, the need for regular reporting of how the lasting powers of attorney and court appointed deputies have been used, perhaps the overly rigid interpretation of advanced directives and maybe the need for a sunset clause requiring the efficacy of the enacted legislation to be addressed in due course.

I was also taken with many of the points made by the noble Earl, Lord Howe, especially on the question of potential conflicts of interest, the veto of life-sustaining treatment and the need to close the Bournewood gap—an issue referred to by many noble Lords.

However, when we reach Third Reading, I and many other noble Lords would not want to be forced to vote against the Bill—the positive aspects to which I have already alluded—because of any ambiguities about euthanasia. That is why it is important that we use Committee and Report to get those questions right.

Those concerns were well debated on 14 December in another place and are also set out in the all-party Early Day Motion 336 tabled by Mr Iain Duncan Smith and supported by Mrs Claire Curtis-Thomas and Mr Paul Burstow, the Liberal Democrat health spokesman. More than 106 Members had signed that Motion by this morning.

Let me turn, then, in detail to this first area of concern. Like many others I am troubled by those clauses in the Mental Capacity Bill which, if unamended, might become a vehicle for euthanasia by omission. The Joint Committee, so well chaired by the noble Lord, Lord Carter, and the Government have trenchantly argued that such creeping change—and euthanasia by default—would be wholly unacceptable. In particular, I strongly welcome the Prime Minister's recent remark that,

"we will not in any shape or form countenance the deliberate killing of people".

He went on to offer the hope that he,

"would have thought that that position would recommend itself to everyone".—[Official Report, Commons, 15/12/04; Col. 1670.]

Sadly, as we know from the unremitting campaign being waged by the proponents of euthanasia, and even supported by some Members of your Lordships' House—we currently have a Select Committee considering the issue—we know that it is not a position that recommends itself to everyone. We must therefore particularly guard against euthanasia by stealth.

Many will have read with concern the reported comments of the noble Baroness, Lady Warnock, on 12 December last. She said:

"Maybe it has come down to saying: Okay, they can stay alive, but the family will have to pay for it. Otherwise it will be an awful drain on public resources".

She went on to say:

"I don't see why the rest of us should be sacrificed to the scruples of the medical profession".

It would therefore be naive to believe that the Prime Minister's position "recommends itself to everyone". Unfortunate though it is that there is no consensus about the matter, there are those who now talk in terms of people's economic worth and the subjugation of medical ethics. That must be clearly recognised in the context of a Bill that gives legal backing to measures that may make frightened, sick or depressed people feel they have "a duty to die" and to sign a living will accordingly.

It would be disastrous if the Mental Capacity Bill, which has the laudable aim of seeking to transform the lives of mentally incapacitated individuals and their carers, were to become a vehicle for the introduction of euthanasia and assisted suicide. The noble Lord, Lord Clarke of Hampstead, drew attention to the excellent speech of his honourable friend Mr Brian Iddon, on 14 December. In another place he quoted official documents from other jurisdictions that approvingly stated that,

"the cost-saving from a nation-wide push towards living wills is likely to be enormous".—[Official Report, Commons, 14/12/04; Col. 1558.]

He also quoted the equally chilling remark of Dr Helga Kuhse, to which the noble Lord, Lord Maginnis of Drumglass, referred.

I was struck by the briefing that I received from the "I Decide" coalition, a group of disabled people's organisations who are concerned about the potentially negative impact of the Bill on their lives. They say that,

"the Mental Capacity Bill will make it harder for disabled people to protect our right to life if the decisions about our lives and our access to medical treatment are taken away from us and put in the hands of self appointed decision-makers. We are very worried that decisions will be made to withdraw medical treatment (which includes food and water), based on incorrect assumptions about the quality of our lives".

Although I, like the noble and learned Lord the Lord Chancellor, oppose invasive and burdensome treatments and unthinking vitalism, these concerns do not fall into that category. Therefore, just as Clause 58 makes a welcome declaratory provision about euthanasia by commission, it is clear that the Bill also needs to do the same thing with regard to euthanasia by omission. It also needs to address the High Court judgment in the case of Mr Leslie Burke, which was referred to by the noble Earl, Lord Howe, earlier. Mr David Lammy, the Minister in another place, said:

"We want to ensure, however, that under the Bill it is not possible for someone by omission to act to assist suicide or euthanasia".—[Official Report, Commons, 14/12/04; Col. 1580.]

I welcome that statement and that made by the noble and learned Lord earlier today and will watch carefully to ensure that amendments do indeed do that.

The Joint Committee of Human Rights, in its 23rd report of Session 2003–04 was severely critical of sections of the Bill dealing with the withholding and withdrawal or medical treatment. It concluded that the presumption in favour of life-sustaining treatment, including nutrition and hydration delivered by artificial means, is not sufficiently strong in the Bill to satisfy the requirements of Articles 2, 3 and 8 of the European Convention on Human Rights.

Turning from the issue of euthanasia by omission, the second area that I would like to flag up is that of "best interests". The Bill states that all decisions taken in respect of the personal welfare of a mentally incapacitated patient must be in his or her "best interests" but this fails to calm my fears about the negative impact of the Bill. "Best interests" is the pivotal principle in the Bill. Therefore we must get the definition right. There has been widespread concern about the subjective nature of the Bill's definition of "best interests". In response, the Government supported and incorporated amendments on Report in another place so that where the determination of a person's "best interests" relates to life-sustaining treatment, any decision maker must now,

"begin by assuming that it will be in that person's interests for his life to continue".—[Official Report, Commons, 14/12/04; Col. 1618.]

I ask noble Lords to consider the full import of those well intentioned words. Far from making the situation better, this change actually makes the situation worse by encouraging decision-makers to adopt an approach based on euthanasia in decision making. It invites the wrong question to be asked; namely, "Is it in this person's best interests for his life to continue?". The right question to be asking is: "Is it in this person's best interests to be provided with this treatment?". Focus is placed on the worthwhile nature of the treatment rather than the worthwhile nature of the person's life. That thinking again recalls the emphasis in the remarks to which I referred earlier about the economic costs of treating the sick—an issue that we must guard against.

I hope that the Government will look again at this matter in Committee. From the start I have argued that it should be made explicit on the face of the Bill that when taking decisions about another individual's personal welfare, the decision-maker must consider—as one factor along with many others—the person's life and health as basic to that welfare. That is perfectly reasonable and I have to confess to being slightly confused as to why the Government have not agreed to such an amendment thus far.

The third and final area that I would like to briefly flag up is that of medical research on the mentally incapacitated. The Joint Committee on Human Rights severely criticised the Bill's proposals on medical research on the mentally incapacitated, particularly the controversial area of non-therapeutic research. The Joint Committee pointed out that the provisions in the Bill did not match those of the European Convention on Human Rights and Biomedicine. The UK has not yet ratified the convention, but accepts in relation to its provisions on research that it represents "long-standing international consensus". The report states:

"We find it impossible to avoid the conclusion that the nature of the benefit from the research required in clause 31(4) of the Bill has the effect of lowering the threshold of when research will be permissible compared to the standards contained in the Convention. The absence of a reference to the potential benefit being 'real and direct' in clause 31(4)(a), the breadth of the test for whether the research is intended to add to the sum of general knowledge on the subject under clause 31(4)(b) and the absence of a structure in which it is only in exceptional cases that research may be conducted which does not have the potential to confer a direct benefit on the person concerned, all amount to relaxations of the standards contained in the Convention".

It is surely incumbent upon the Government to ensure, as the Joint Committee on Human Rights suggests, that the provisions on research are in accordance with internationally agreed standards. It is difficult to comprehend why a Bill, which purports to safeguard the rights of the mentally incapacitated, should allow research to take place on incapacitated people without their consent and without benefit to the person being experimented upon. Assurances from the BMA and others that everything will be in order and that we just have to trust the researchers do not really wash with the general public.

The World Medical Association's Declaration of Helsinki provides a useful model for the Government to adopt, in particular the final section on non-therapeutic research. I commend to the Government parts 1 and 4. Part 1 states:

"In the purely scientific application of medical research carried out on a human being, it is the duty of the physician to remain the protector of the life and health of that person on whom biomedical research is being carried out".

Part 4 goes on to say:

"In research on man, the interest of science and society should never take precedence over consideration related to the well-being of the subject".

That final paragraph is particularly relevant to the Bill. If that form of words could be incorporated into the Bill, it would assuage a lot of the fears surrounding medical research on the mentally incapacitated. The Government could also help by giving us some clear examples of the types of non-therapeutic research on the mentally incapacitated that they envisage being approved under the Bill's provisions.

The three areas of concern that I have mentioned—euthanasia by omission, best interests, and medical research—can all be addressed successfully by the Government, enabling the Bill's passage at Third Reading and through the final stages in another place. The amendments that I and other noble Lords propose would strengthen protection for vulnerable adults who fall under the Bill's jurisdiction. I hope that the Government will accept the spirit of this constructive criticism and engagement and feel able to respond when we reach Committee and Report stages.

Lord Alton is a Catholic Protagonist in the House of Lords.