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Baroness Amos: My Lords, I can only repeat what I said in my original Answer: the Secretary of State for Northern Ireland will consider carefully the application of the powers. The Act has only just been passed, but the Government's preferred method, which we made absolutely clear when the legislation was going through the House, is for the police to gather the evidence necessary to secure a conviction in court. That remains the position.
Lord Thomas of Gresford: My Lords, are the Government reluctant to use control orders in Northern Ireland based on reasonable suspicion because they fear the stirring up in the Northern Irish communities of the sort of hornets' nest that we were talking about last week?
Baroness Amos: My Lords, I feel a bit like a broken record, repeating the Government's position. Our position when the legislation was going through this House, and now, is that we prefer to secure a conviction in court. We have always made it absolutely clear that this legislation will be used sparingly. I cannot comment on what might be hypothetical situations.
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Budget (Northern Ireland) Order 2005
Public Processions (Amendment) (Northern Ireland) Order 2005
Electoral Law Act (Northern Ireland) 1962 (Amendment No. 2) Order 2005
Electoral Law Act (Northern Ireland) 1962 (Amendment No. 3) Order 2005
Baroness Amos: My Lords, I beg to move the four Motions standing in my name on the Order Paper.
Moved, That the draft orders laid before the House on 9 February, 22 February, 24 February and 7 March be approved [11th Report from the Joint Committee].—(Baroness Amos.)
On Question, Motion agreed to.
Child Benefit Bill
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): My Lords, I understand that no amendments have been set down for Committee and that no noble Lord has indicated a desire to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Lord McIntosh of Haringey.)
On Question, Motion agreed to.
Mental Capacity Bill
Baroness Ashton of Upholland: My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
Baroness Ashton of Upholland moved Amendment No. 8:
Page 3, line 17, after "feelings", insert "(and, in particular, any relevant written statement made by him when he had capacity)"
The noble Baroness said: My Lords, the purpose of this amendment is to clarify that if someone with capacity has written down their wishes and feelings in respect of a matter, including positive preferences, those must be explicitly taken into account in a best-interests determination.
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Patients do not have a right to demand and receive treatment, so advance requests cannot have the same legal effect as advance decisions to refuse treatment. However, the amendment makes clear that preferences about any aspect of a person's life, including treatment, should be respected and taken into account. We believe that that has always been implicit in Clause 4, which says that the decision-maker,
I agreed to make that clear, in response to an amendment about advance statements from my noble friend Lord Carter in Committee.
I want to clarify how that relates to medical decisions because in a medical situation it is already best practice for any doctor who departs from a patient's clearly expressed wish to explain his reasons for doing so, and he would be expected to keep records to enable that. That means that, where someone has sought to make an advance refusal of treatment that does not qualify under Clauses 24 and 25, but there is still a reasonable belief that that is an expression of the person's wishes, it will be taken into account, too, in assessing best interests. The absence of a valid and applicable advance decision does not automatically mean that treatment must be provided. As I have indicated, the decision must be made according to the overall best interests of the person. The more specific and well thought-out the statement, the more likely it will be persuasive in determining best interests.
The amendment goes further than the stakeholders' requests to us in that it covers all best-interests decisions, not just those involving treatment. For example, it covers financial preferences or where somebody might wish to go on holiday. I hope that that meets the needs that I said I would address in Committee. I beg to move.
On Question, amendment agreed to.
Baroness Chapman moved Amendment No. 9:
"( ) Nothing in this Act shall permit the withdrawing or withholding from any person of nutrition or hydration, howsoever provided, save where the provision thereof would itself cause harm or burden to the person greater than if the nutrition or hydration were not provided."
The noble Baroness said: My Lords, before I talk about the amendments tabled in my name, I wish to thank the noble Baronesses, Lady Ashton and Lady Andrews, for the government amendments that were put forward and accepted by this House on Tuesday evening and this morning. Those anti-discrimination amendments will help protect those who are most at risk from misrepresentation in this Bill. Those amendments, plus others tabled today, particularly those relating to Clauses 34 to 40, where patients will have an independent advocate to speak for them, are most welcome.
That brings me to Amendments Nos. 9, 9A and 113, to which the noble Lord, Lord Alton of Liverpool, and the noble Baronesses, Lady Masham of Ilton and Lady Knight of Collingtree, have kindly put their
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names. Over the many days on which we have discussed and debated the Bill I have watched it change from a document that instilled fear in me to one that, although not perfect, is much safer and much more protective of the most vulnerable in society.
There is still one area of real concern to me; it is covered by these amendments. I cannot perceive a society that would, or could, accept the withdrawal of nutrition and hydration unless to give it would cause harm. To talk of intention and purpose seems somewhat unreal when we are talking of that which sustains life. For us to spend hours discussing the most appropriate words seems irrelevant when we all know the consequences of withdrawing basic nutrition and hydration.
I acknowledge and accept that there are situations where treatment is futile. I also accept that as the dying process progresses the body no longer requires sustenance. Those are facts. However, the withdrawal of nutrition and hydration can increase the suffering and distress of the patient until the deprivation of hydration takes effect. We must remember that this Bill does not just cover people who are unconscious and unaware. Clause 3(1)(d) clearly states that,
Lack of capacity can be because of inability to communicate. If these amendments fail, fully conscious, fully aware people are at risk of having sustenance removed.
From a personal point of view, I cannot think of a worse nightmare than feeling hungry or thirsty, not being able to communicate and having full knowledge that the only respite would be as I approached death. I am certain that that scenario is not the Government's intention. But if Clauses 4 and 60 are not amended it will happen. There have been documented cases where people have had nutrition and hydration removed but continued to show signs of wanting food and water because, for lack of capacity, there was no opportunity to voice new wishes.
I do not want to challenge the Bland judgment; I have started each amendment "Nothing in this Act" so as to avoid conflict with it. I also appreciate the fact that this will affect only a small number of people. But if you or somebody you love are one of that number, you would not find that any consolation.
I ask noble Lords to support the amendments because, morally, it is wrong to increase the suffering of people in the latter stages of life, when they are at their most vulnerable and should be offered the highest levels of dignity, respect and care. I beg to move.
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