How I voted on the Mental Capacity Bill

4.54.08pm UTC (GMT +0000) Thu 23rd Dec 2004

There has been particularly strong interest in the Mental Capacity Bill due to concerns about the formalisation of the legal status of Living Wills. Because there has been so much interest, I would like to explain how and why I voted on the Bill at Report Stage and Third Reading, which took place on 10 December 2004.

The media coverage has focussed so exclusively on the Living Wills part of the Bill that I think it has caused some confusion and misunderstanding about what the Bill is mainly about. While most of the controversy has centred on the issue of advance directives and end-of-life issues generally, these only form a part of the Bill. The Bill as a whole is about improving the quality of life for those who lack the mental capacity to make decisions, as well as defining what we mean by mental capacity and introducing a presumption that an individual does have mental capacity rather than the opposite.

It should be made clear that the scope of advance directives does not and will not include shortening a person's life artificially; the question is when and whether to prolong life artificially, for instance by invasive surgery. The current common law position already allows the use of advance directives; this Bill is intended to clarify the law surrounding their use and to introduce safeguards.

I would also like to make it quite clear that the Bill is not intended to legalise euthanasia, either by commission or omission. Indeed, to make that clearer still, the Government inserted Clause 58 into the Bill, which reads as follows:

"For the avoidance of doubt, it is hereby declared that nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (c. 60) (assisting suicide)."

However, there remain legitimate concerns that there are insufficient safeguards in the Bill regarding this issue. I have taken a keen interest in this Bill for some time, from the point when it was published in draft form for consultation. Prior to the introduction of the revised Bill to the House of Commons I wrote twice to Lord Filkin, the Secretary of State for Constitutional Affairs, about the lack of safeguards on end-of-life issues and the potential for those making decisions on behalf of people lacking mental capacity to abuse their position.

Some of my correspondents have also raised with me concerns that experimental treatments may be allowed on patients lacking mental capacity without their permission, and have asked that this be outlawed in the Bill. I want the Bill to include strong safeguards to ensure that any experimental treatment is in the patient's best interests, but do not support the outlawing of any use of experimental treatment. The recent plight of people suffering from the human form of CJD has convinced me that this would be against the interests of some patients and may prevent access to life saving treatment. With CJD and other conditions on which new research is currently being undertaken to find treatments, an outlawing of experimental treatments on people who have lost mental capacity would prevent some patients having access to any new breakthrough treatments that become available and that may be their only hope. So while safeguards are essential to prevent abuse, the complete outlawing of any treatments still undergoing human trials would inevitably at some future point deny life to individuals who could otherwise have received effective treatment following breakthroughs in research.

When the Bill reached the Commons, I voted in its favour on Second Reading. This was to allow the Bill to reach its Committee Stage, where the Bill could be looked at line-by-line and amendments could be tabled to improve it. After the Committee Stage, the Bill then went to Report Stage and Third Reading; it will now go to the House of Lords for their consideration.

My Liberal Democrat colleague, Paul Burstow MP, fought hard to bring about some improvements while he sat on the committee for the Bill. You will probably be aware that there were also a number of amendments tabled to the Bill at the recent Report Stage. I supported Amendments 1 and 2 which were tabled with support from members of all parties. These were intended to provide the clarity which many MPs, myself included, feel is necessary on the face of the bill to ensure that there is no possibility whatsoever for advance directives on withdrawal of treatment to be used as a form of passive euthanasia.

I was very disappointed that these amendments were not passed by the Commons as the Government did not support them and refused to allow Labour backbenchers a free vote in this key issue of conscience. However, after very careful consideration I decided to vote for the Bill at Third Reading. This was partly on the basis of the letter which the Minister, David Lammy, produced. The letter was from the Catholic Archbishop of Cardiff to the Secretary of State for Constitutional Affairs and it made clear that although the Bishop wished to see the Bill clarified, he did not believe that the effect of the Bill would be to allow the authorisation of killing in any form.

Although I was appalled by the shambolic proceedings in Report Stage and Third Reading debate because of the Government's failure to do its work properly ahead of Report Stage and Third Reading and inform MPs of new developments (leading to the last-minute producing of the Bishop's letter amid great confusion), this was not sufficient for me to vote against the Bill, given its importance to people lacking mental capacity.

I have received material from SPUC, which a number of constituents may also have read; but I have also received a great deal of material from organisations such as the Mental Health Alliance, the Alzheimer's Society and the Making Decisions Alliance which clearly refuted SPUC's claims. During my time as an MP, I have worked very hard on mental health issues and worked with a number of different groups. These groups have spent 15 years campaigning for legislation that will ensure much more effective representation of the wishes of people living with a lack of mental capacity. For many people this is a matter of improving protection against abuse and ensuring decisions are made in their best interests throughout their lives.

It is for this reason that I felt that it was important that the Bill went to the House of Lords, where there are further opportunities for it to be amended and safeguards can be strengthened prior to its enactment. MPs will have another opportunity to vote on the Bill after the Lords has amended it, so it remains possible for me to withdraw my support for the Bill before a final decision is made on its enactment.

The House of Lords is often more effective than the House of Commons in considering the difficult ethical issues associated with this kind of Bill. Furthermore, given the balance of power in the Lords where the Government do not have an overall majority, it was always likely that there would be a better chance of amending the Bill there. Liberal Democrats in the Lords will be fighting hard to improve safeguards in the Bill and to ensure maximum clarity in the legislation. I shall be keeping in contact with our spokespeople throughout this process.

Finally, although there were improvements in safeguards in the Commons, I am still not satisfied. If, in its final form, I remain unsatisfied with the safeguards, I shall vote against the Bill. I very much hope, however, that the Bill will be further amended and that it will be enacted in an acceptable form, with all necessary safeguards, to improve protections for those who lack mental capacity.