Mental Capacity Bill

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Mr. Lammy: A key principle governing deputies is that they cannot do more than the person could do if he or she had capacity. That is why it would be odd to give a deputy the power to direct someone responsible for a person's health care to allow a different person to take over that responsibility. That is something that the hon. Gentleman and I cannot do, so it would be odd to give that power to a deputy. In a sense, only the court has that power, so it is right that only the court can do this for people who lack capacity.

On the question of prohibiting a named person from having contact with the person lacking capacity, again only the court has the power to stop people having contact with others. Of course, if a deputy has doubts about someone's conduct, he is entitled to ask the Court of Protection to make a judgment, or to apply for a non-molestation order as a litigation friend. Clause 28 is there to provide protection for people who lack capacity and to protect the underlying ethos of the Bill, which is one of empowerment, personal autonomy and minimal supervision. Extending the powers in the Bill in the way suggested by the amendment would therefore be unhelpful.

Mr. Burstow: Allowing me to intervene might allow the Minister to blow his nose, which might also be helpful.

I want to be clear about the Minister's argument against the amendment tabled by the hon. Member for Daventry with respect to how it would affect the power to prohibit a named person. Clearly, with regard to matters covered by clause 17, someone who has lasting power of attorney can take such decisions, so will the Minister explain a little further why it was not believed to be appropriate for a court to be able to give someone within its power as a deputy the right to be able to say that certain persons cannot have access?

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Mr. Lammy: The court can prohibit or direct people, but an individual cannot. It is right that that scrutiny is very definitely within the ambit of the court. That is part of the court's broad powers to put its orders into effect, so in appointing a deputy, it is the court order that, in a sense, falls within its ambit. The deputy can take away the person who lacks capacity, but they cannot control the third party. That would run into other areas of both common and criminal law.

Mr. Burstow: Presumably, however, the Bill envisages that a donee can in some way act to affect a third party in some way. How can a deputy be deemed not to be able to act in that way, but a donee can?

Mr. Lammy: We debated this earlier. The hon. Gentleman might recall that I reminded him that the deputy acting on health and welfare most often provides consent. I wanted to ensure that he did not believe that such a deputy was providing care in the way he was suggesting.

I entirely understand the hon. Gentleman's point, but he is not making that subtle distinction. Therefore, the deputy is not instructing the third party. He is working in tandem with the third party, authorised by the court and subject to the restrictions, or at least the directions, that the court has given him.

4.15 pm

Mr. Boswell: It is important that we tease out such matters. My reading of the Bill is that clauses 17 and 20 taken together relate only to deputies, not to attorneys. Clause 17, which glosses clause 16 powers, enables the deputy to decide what contact, if any, he is to have with the specified person. In other words, such matters centre on the person and whether he is to be introduced to someone. However, under clause 20 the restriction—the subject of the amendment—would be to prohibit a named person from having contact with P, which ties in the named person, not P himself. In one case, P is looking outwards to other persons whom he might encounter. In the other case, it will prohibit anyone other than the court from forbidding an individual from contacting P on his own initiative. Is that correct?

Mr. Lammy: The hon. Gentleman's explanation is helpful, but clause 17 definitely relates to the powers of the court, not the LPAs. That is not inconsistent with what I have previously outlined. The point is that the donee or deputy does what the person who lacks capacity could otherwise do, but we cannot prohibit people from doing things to us—or, directly, doctors. I am sure that we will come on to such matters when we discuss the next amendment and the relationship between someone who has that power but who in practice has to work in conjunction with other professionals, who will usually be doctors or social services personnel.

Mr. Boswell: I am grateful to the Minister for giving way again. I want him to understand that my motive in tabling the amendment was to make sure that we had not by accident lost the deputy any common law rights of intervention in an urgent situation. For

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example, if someone were loose with a knife in the Committee Room, we would not want a deputy to be inhibited from intervening, because we would all have a common law right to try to prevent someone else from being injured. Perhaps the Minister can deal with that issue, too.

Mr. Lammy: In such circumstances, other areas of law would kick in, without prejudice to the Bill. I assure the hon. Gentleman that whether I was a deputy or not, I would intervene if someone took out a knife. I ask him to withdraw the amendment.

Mr. Boswell: The Minister has sought to answer my question. We have exposed our potential concern. We have received some useful clarification, bearing in mind the fact that such matters are driven by the courts, and that if someone is acting of behalf of another person, they should not have a power beyond that of the person concerned. The principle is sound. It has been worth rehearsing it, and we might need to reflect further on what has been said to see whether we can pick up on anything later. For the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Burstow: I beg to move amendment No. 103, in

    clause 20, page 12, line 9, leave out from 'P' to end of line 10.

The Chairman: With this it will be convenient to discuss the amendment No. 104, in

    clause 20, page 12, line 11, leave out subsection (6).

Mr. Burstow: This group of amendments, and the discussion that I hope that we will have about it, follows on from the exchange that we have just had about whether it is right for a court to be able to subcontract to a deputy a matter of such importance as the decisions concerning consent to the withdrawal or withholding of treatment. The amendments indicate clearly that those are not matters that a court should delegate to an individual; it should be impossible to envisage any circumstances in which it would be appropriate for the court to abrogate its responsibility to see those matters determined in court. I would be interested to know whether the Minister thinks that there are any such circumstances. The intention of the amendments is to remove the last part of clause 20(5) and to delete subsection (6), which follows it.

The Minister said just now that it was right for the court to retain within its ambit the ability to scrutinise decisions with regard to access by P. If that is so, I find it hard to understand and square the idea that it might be right for the court not to be in a position in which it, and it alone, can scrutinise the fundamental issues of life and the withdrawal of treatment—so I look forward to the Minister's doing that for us. The purpose of the amendment is to ensure that we are clear about where we are, and where the Bill will take us. I hope that the Minister can give us some clarification and reassurance.

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Mr. Boswell: I endorse the comments that have been made about the need for clarification. The important point about life-sustaining treatment, or its withdrawal, is the one expressed in the definition. It is not an issue to which one can return if somebody's life has come to an end, or been terminated, because the treatment has been withdrawn. It is difficult to see that that would be an inappropriate matter for the court, particularly where there might be an argument, or a perceived argument, about any potential difficulty in the position of the deputy, who might have other interests as well, and might be seeking to reconcile them. I do not want to open the issue of euthanasia—we will want to give further consideration later to advance decisions and the way in which they will operate—but the issue is very serious.

Perhaps the Minister has concerns about overload, and whether many decisions would be referred to the court on a precautionary basis. I am, at least partially, sensitive to that. However, there should be no doubt about the seriousness of these issues. Talking of well-considered judgments, it is worth recording for the Committee the fact that there have been a number of recent cases in which courts have decided life and death issues—the Wyatt judgment comes to mind, but it is not the only one. In a way, because of the sensitivity of the judgments, they have succeeded broadly, if not in satisfying, at least in reconciling, the parties to the very difficult situation that has to be met. Any suggestion that that could be subcontracted, even to a sensitive individual, would be unfortunate. That is the nature of our concerns at this stage.

Mr. Lammy: Of course I fully understand the concerns of the Committee. Hon. Members are entitled to ask why a deputy should be given such a power, and under what circumstances the situation would arise. I must emphasise that we concluded that it was right to give him the power partly for the reason that the hon. Gentleman indicated—examining the cases that come before the High Court and the difficult determinations that it has to make, and seeing how many times people are required to go to court for that purpose. Let me explain why.

On pages 73 and 74 of the code of practice, hon. Members will see that

    ''It is expected that the appointment of a deputy to make personal welfare or healthcare decisions is likely to be needed only in the most extreme cases'',

so the provision definitely relates to exceptional circumstances. None the less, the court should be able to provide a deputy with the power to give or refuse consent for life-sustaining treatment. It is important that I explain the reasoning.

 
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