|
Column Number: 071
Standing Committee A
Thursday 21 October 2004
(Morning)
[Mr. James Cran in the Chair]
Clause 4
Best interests
Amendment proposed [19 October]: No. 13, in
clause 4, page 2, leave out line 36.—[Mr. Boswell.]
9.30 am
Question again proposed, That the amendment be made.
The Chairman: I remind the Committee that with this we are discussing the following amendments: No. 138, in
No. 110, in
The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. David Lammy): I welcome you to the Chair, Mr. Cran. We had an interesting debate on this important Bill on Tuesday. That debate will continue today and, under your chairmanship, so too, I hope, will the constructive manner in which we have all engaged to make the Bill better.
We are considering clause 4. On Tuesday, hon. Members raised concerns that I listened to with great interest, and I hope that my job this morning is to reassure them that the Bill will not expose people to dangers that hon. Members fear. ''Best interests'' is the Bill's fundamental principle, and it governs everything that is done for a person who lacks capacity. I am grateful my hon. Friend the Member for Blackpool, North and Fleetwood (Mrs. Humble) for reminding us that we need to consider the clause against the spirit of the Bill's supportive and protective ethos.
The best interests clause is based on the common law position. I want to reassure my hon. Friend the Member for Crosby (Mrs. Curtis-Thomas) and others that best interests is an objective test, although we had much debate about whether it is. It is not a test of substitutive judgment or in any way a subjective test. Losing objectivity could not be in a person's best interests, and my hon. Friend was right to say that. The person's best interests have to be at the heart of the Bill.
Mrs. Angela Browning (Tiverton and Honiton) (Con): I want to intervene on an issue that I raised during our debate on clause 4 in our last sitting. That issue was also raised on Second Reading, but we have not yet had a definitive answer on it, so I would be grateful if the Minister provided one. Is it his
Column Number: 072
understanding that the term ''treatment'' in the Bill refers to, and includes, hydration and nutrition, howsoever delivered?
Mr. Lammy: The hon. Lady will know that that matter has been established in common law. If she speaks to doctors and medics, she will learn that there is a fine line between care and treatment. Last night, I spoke to Dr. Andrews, the country's pre-eminent expert on permanent vegetative state, who is based at the institute in Putney. He said, ''Look, please let's not be simplistic about this; when we talk about nasogastric tubes—tubes into the stomach—the tubing itself is clearly treatment, but the food falls into the category of care.'' It is clear that there is a difficult dividing line there, which we can talk about in further detail.
Mrs. Browning: I am pressing the issue because when a Bill becomes an Act of Parliament, there are inevitably court cases in which people ask what Parliament's intention was when legislating. That is why I am asking the Minister, as the legislator, to put on record his understanding of the meaning of a word in his Bill. What is the meaning of the word ''treatment'', for the purposes of the Bill? I am referring not just to people in a permanent vegetative state, as I think I explained in our last sitting; in some ways, those are more complex cases. I am talking about the many thousands of people who may not be able to access nutrition and hydration by their own means, purely because of frailty and other such circumstances.
When we legislate, it is important that we and the people outside the House are clear about Parliament's intention. Again, I ask the Minister in charge of this Bill whether it is his understanding that, for the purposes of the Bill, the word ''treatment'' means hydration and nourishment, howsoever delivered?
The Chairman: Order. I did not interrupt because an important point was being made, but interventions should be a great deal shorter than that.
Mr. Lammy: May I say to the hon. Lady, looking her in the eye and answering her question directly, that she is attempting to push me down a medical road? It is for Parliament not to substitute the judgment of the medics, nurses, carers and parents in our hospitals, but to give them the framework in which to make difficult decisions. That is why the Bill talks about best interests and why we are preoccupied with them at this point in Committee. That is the judgment that we require of our medics. It is not for me to tell our doctors—many of whom have 15, 16 or 17 years of neurological expertise, which I do not have—how they should make those fine judgments on care and treatment.
Mr. Tim Boswell (Daventry) (Con): Very simply and, I fear, possibly simplistically, I seek to summarise the Minister's argument. As I understand it, his contention is that treatment, when considered by a professional person—a clinician—is to be interpreted as action being taken, whatever is appropriate, in the person's best interests. Our concern is that they are secured as an objective principle. The clinician's duty is to see how we get there.
Column Number: 073
Mr. Lammy: I am grateful to the hon. Gentleman for supporting me and my attempts to ensure that we have that clear clarification about our purpose on these important subjects.
Ann Winterton (Congleton) (Con): I am most grateful to the Minister for being extremely generous in giving way. He is quite right in that we are creating a framework, which can be interpreted in different ways by different people at different times when using their professional judgment. There is, however, one inescapable question on whether there is omission of what he calls treatment and what I call basic care—hydration and nutrition—for a patient who is not dying: is that his objective or not? If not, we should make that clear here and now.
Mr. Lammy: In the circumstances that the hon. Lady outlines, that is not a matter that should concern the Committee, but one that is dealt with under criminal law; it is called manslaughter. It is also dealt with under our common law; it is called gross negligence. It is dealt with under the oath that our doctors take—it is called the Hippocratic oath—and the duty of care that they have. I will explain that in a little more detail.
Mrs. Browning: May I prevail on the Minister once more?
Mr. Lammy: I will not give way again. I have not even got into my stride and I have given way four times, so now I am going to make some progress.
Best interest does not equal what the person would have wanted or what I would want if I were that person. That means that things can be done in the best interests of an incapacitated person that he might not have wanted. I will give hon. Members an example. Even if someone had a lifelong aversion to needles, a decision could still be taken to give them the necessary injection when they were unconscious after a car crash.
I assure my hon. Friend the Member for Crosby that she need not worry that a proxy could say that someone should not be treated simply because they had expressed a wish to die, even if the person—say, the person in the car crash whom I mentioned—had such a wish before the crash. The objective conclusion would have to be that it was in their best interest to be treated for their injuries.
Mrs. Curtis-Thomas: I am relieved to hear that we want to define best interest objectively, except, of course, in clause 4(5), which we have chosen to talk about subjectively. I would be grateful if the Minister repeated what he said. He said that things would not be done, even in a person's best interest. I think he said that even the wishes of the person would not be taken into account.
As I read the Bill, the person's wishes would be taken into account, and they would be subjective. I am asking not to remove the subjective elements of best interest, but to add a true objectivity to that, which would be a measure of the impact of medication and treatment on the person's life and health. That is what I want. If I got it, I would be a much happier person.
The Chairman: Order. I, too, would be a much happier person if the interventions were shorter.
Column Number: 074
Mr. Lammy: I am trying to deal centrally with the point that my hon. Friend makes. I refer her to the draft code, which says
''it is important to recognise that the person's wishes and feelings will not automatically control the outcome. The 'best interests' principle is a fundamental principle, requiring what is best for the person.''
My hon. Friend also expressed concern that a person had to show only reasonable belief that they had acted in someone's best interest. She referred us to clause 4(8), in which is seen the climax of the best interest clause—reasonable belief, which that person has to have.
I assure my hon. Friend that, in law, reasonable belief is a high test to meet. In the British common law system, it is widely understood as the most objective test. She may remember the Clapham omnibus test of reasonableness: what would a reasonable man think in the circumstances? She may recall the concept of diminished responsibility in criminal cases. If a woman—usually, it will be a woman—finds herself in the dock charged with murder in a domestic violence case, the jury make a reasonable assessment. They have to have a reasonable belief that she acted in self-defence. That is our most objective test, which is why it comes at the end of clause 4. The doctor—the person put in this circumstance—weighs up all that has gone before, having consulted and taken into account a person's past and present wishes and feelings—all the context. He makes an objective assessment of that information.
|
