Will everyone ensure that all electronic devices are turned off or switched to silent mode? Tea and coffee are not allowed in the Committee Room. We will continue line-by-line consideration of the Bill. I gently ask people to abide by my exhortations yesterday.

I beg to move amendment 322, in clause 3, page 2, line 13, at end insert— “except that— (a) for the purposes of an assessment of capacity under this Act, a person must be assumed not to have capacity unless it is established they do have capacity, and (b) section 1(3) of the Mental Capacity Act 2005 shall not apply.

” This amendment reverses the burden of proof in the Mental Capacity Act, so that those assessing a person’s capacity would not be able to assume that the person has capacity without evidence.

I hear that. There are different decisions, whether it is buying a coffee or seeking an assisted death. Would my hon.

Friend concur that, for some individuals in those scenarios who may be by themselves because of the circumstances of their lives and about whose capacity there may be doubt, the doctor must presume in the first instance that they have capacity, and that the doctor must assist them in making a decision?

Yes, I totally accept that. The Mental Capacity Act is set so that we assume capacity and look for evidence of lack of capacity. The great danger with the amendment is that it would change a whole raft of very well used provisions.

As Professor Whitty said, the Act is used up and down the country every day; I have used it myself many times, and taught it as well. If we change the emphasis from the presumption of capacity to the presumption of incapacity, which is what my hon.

Friend is suggesting, that is a major change in the Act.

Given what my hon. Friend has just said—that he accepts the premise of my hon. Friend the Member for Bexleyheath and Crayford that the doctor would have to assist—can he help me to understand where that leaves the issue of autonomy if a doctor is, as he has agreed, allowed to assist in the decision?

The way the doctor assists, if making a mental capacity assessment, is to try to tease out the four concepts. Does the patient understand what they are being asked to agree to? Sometimes mental capacity assessments are very straightforward and last five minutes; sometimes they last an hour.

I have done one that lasted about 90 minutes because it was really important to tease out whether the patient genuinely understood what they were doing. That is the sort of assistance I am talking about.

It is not about trying to persuade them to make a decision that I think is the right decision; it is just making sure that they understand it, can remember it and so on.

How does my hon. Friend respond to not one, not two, but multiple witnesses, including the Royal College of Psychiatrists, saying, absolutely contrary to what he is saying, that the Mental Capacity Act is not the right bar and that the bar is too low?

Well, that was disputed by other psychiatrists. We are asking questions about whether the Mental Capacity Act is safe and correct for the Bill. This whole Committee is about making the Bill safe. None of us would dispute that.

However, I think that if we accept the amendment, the Bill will become less safe because the amendment would change a massive piece of legislation and therefore have a number of repercussions that we do not understand.

I agree that the threshold is the same: does the patient have capacity or not? That is the single threshold.

We often do mental capacity assessments for inheritance, control of bank accounts and that sort of thing; sometimes we do a very quick mental capacity assessment about the refusal of treatment. How long we take depends on how important the decision is.

I suggest that a doctor assessing someone’s capacity to make a decision to end their life would have a serious, long discussion—up to 90 minutes, or possibly even two hours—to make sure that the doctor is convinced that the patient has capacity.

The threshold is the same—it is about whether they have capacity—but that does not mean that the conversation is the same.

In clinical terms, it is very clear that a conversation on those grounds would be much more involved than, for example, whether a person sees a dentist or not, or other conversations like that.

I totally understand the concerns that the amendment has been tabled to cover; however, my main point is that if we accept the amendment, it will make the Bill less safe.

The reason for that is that, as I have said before, if we change something that is well used, and repeatedly used, it will make the interpretation much more complicated. We will have to re-train all the doctors and, I think, it will not protect patients.

At risk of repeating something said in a previous sitting, does the hon. Gentleman accept that the amendment is not trying to amend the Mental Capacity Act itself, and it is not trying to change how the Mental Capacity Act is used in the majority of situations in which it is already used?

All it is trying to say is that in this particular circumstance the Act needs to be applied in a different way. We are not trying to rewrite the Act in itself or any aspect of the way in which it is currently used.

I understand what the amendment is trying to do; my argument is that it will not achieve that because it will muddy the waters of a mental capacity assessment, which will make how we do it less safe.

I would also like to return to Professor Whitty’s comments and to say that in the majority of cases mental capacity is very clear. It does not actually take very long to assess whether someone has mental capacity.

Will the hon. Gentleman give way?

Can the hon. Gentleman be allowed to fully answer the questions that the hon. Member for East Wiltshire and the hon. Member for Richmond Park asked, before we have an intervention on another point?

It is really important to understand that for the majority of people mental capacity can be assessed reasonably quickly because it is very clear whether they have it or do not have it.

What we are talking about, I think, is a small proportion of patients in which it is unclear whether they have mental capacity.

There is scope in the Bill for those circumstances, when the patient should be referred to an enhanced level of mental capacity assessment by a psychiatrist or a psychological nurse. In that way, it makes it much safer.

We do not need to redesign the Act for that small number of patients because we already have a very safe route to assess capacity.

I thank the hon. Gentleman for giving way; he has been generous with his time. I do not know whether the hon. Gentleman has seen the evidence from Alex Ruck Keene KC on mental capacity.

He sets out very clearly the myths around mental capacity, one of which is that mental capacity is well understood. He argues that it is not. How would the hon. Gentleman respond to that?

I think that in most cases mental capacity is very well understood, and it is very clear, as I have said. I would say that, as practising clinicians, almost every GP has to do it. I would not sign up a doctor in training if they could not do it.

I think it is a little bit rich to suggest that we cannot assess capacity. I agree with many of the comments that have been made about assessing capacity in more difficult cases for most doctors, and I think we do need an avenue, in those situations, to get further opinions.

The hon. Gentleman said it would be rich for people to say that capacity cannot be assessed. That is not the case. I am not convinced about that, and I am not sure, from the evidence I have seen, that anybody is saying that anybody is not capable of assessing capacity per se. Would the hon.

Gentleman agree that the argument is about assessing capacity for this Bill in particular? That has not been tested. The Royal College of Psychiatrists is very clear, as are many other experts, including legal experts, that the Bill has not been tested for that purpose.

Therefore, the Mental Capacity Act does not meet the purpose for the Bill.

Order. I will give people the opportunity to explore this issue but, as I have said, interventions are not mini speeches.

I feel that the Committee has been through these points quite extensively. There is clearly a disagreement in our beliefs; I accept that, but it is very important to make the Bill as simple as possible, because that is the best safeguard.

I believe that the Mental Capacity Act is the right test for whether people have capacity. I reiterate that if there is a doubt in the clinician’s mind, there should be an avenue to get an expert opinion on capacity.

It does reassure me, and I think it should reassure other Committee members. Having eight different people doing a capacity assessment is a very thorough safeguard for capacity.

We have gone through the arguments many times in this Committee, but I do not feel that changing the polarity of mental capacity will do anything to make patients in this situation any safer. That is why I do not agree with the amendment.

For fear of being interrupted any more, I think I will leave it at that.

As my hon. Friend the Member for Spen Valley said, there are eight different opportunities for assessing capacity in the process, the last of which is before the patient takes the medicine that will end their life.

At all those stages, it is possible to stop the process, and the patient is in total control. I do not disagree with anything in amendment 50, but I believe that everything in it is already in the Bill, under other clauses.

I do not think that the amendment would add anything to the Bill; it would actually make assessing capacity more confusing, from a legal perspective.

In the evidence from Mencap and in large swathes of the written evidence, we have heard grave concerns from communities representing people with learning disabilities about how this legislation was enacted during covid, particularly with “do not resuscitate” notices.

Evidence shows that people with learning disabilities were far more likely to have those placed on them. The written evidence we have suggests that that is due to a misinterpretation of the Mental Capacity Act or bias within the medical community. Can my hon. Friend comment on that?

My hon. Friend makes a very valid point. Another issue that we have not got to yet, but that we will be looking at, is the doctors who do not want to take part in this process. We must consider whether there will be a bias; he is right to point that out.

Will there be a subconscious bias towards helping people? My hon. Friend the Member for Stroud suggested earlier that doctors assist a person to reach a decision, according to the Mental Capacity Act.

This is the crux of it for me: when a doctor is assisting a person in their best interests to come to a decision about treatment, for example, that is a different test from what we are testing here.

I share the concerns of my hon. Friend the Member for Bexleyheath and Crayford about the use of DNRs—what happened during covid to people, particularly those with disabilities, was a disgrace. Does my hon.

Friend the Member for Bradford West accept that this is an entirely different situation, however, in that people must actively seek it, be tested multiple times, and express a wish for it?

The situation with DNRs involved medical professionals making decisions on behalf of a patient without their input.

I thank my hon. Friend for his intervention.

Order. Can Members please address the Chair?

I am pleased to follow my hon. Friend the Member for Reigate, who set out with incredible clarity the challenges here and the opportunity we have to build on the Mental Capacity Act, and to fulfil its purposes and the purposes of the Bill to ensure that capacity is properly assessed.

I will speak to all the amendments in the group very briefly; I certainly will not repeat material points that have been made already. To clarify, I do not propose to push amendment 49 in the name of my hon.

Friend the Member for Runnymede and Weybridge to a vote, although I will speak to it briefly. I hope we will vote on the other amendments.

On tightening capacity assessments, which is what the amendment is trying to do, I would point out that there are a number of amendments coming up that would mandate training for doctors who are registered to assess capacity—for example, amendment 186.

In addition, amendment 6 would mandate psychiatric referral if there was any doubt of capacity. Does that not satisfy the hon. Member?

I know that we have interacted before about our fundamental difference on the ventilator test: someone saying, “I want to die, please turn off my ventilator” as opposed to, “I want to die, please let me take this substance.

” Although we may have a fundamental disagreement on whether those things are the same or different, if he still thinks it is appropriate for the Mental Capacity Act to be used as a one-off test, with no other safeguards, for turning off a ventilator, then why is it appropriate in that situation but not when tested multiple times in this instance?

When people are in what is often termed a “crisis”, that would indicate that they are not in a situation where they have capacity. I do not see how the hon.

Gentleman can think that it is reasonable to make a comparison between these two things; they are entirely different, and I am sure everyone here would broadly agree with that—I think, on this one, he is sort of on his own. Would the hon.

Gentleman be able to offer any further insight into why he thinks that two wildly different situations are analogous—one is in a medical context where people have all the safeguards, and that layer of security and checking, and the other is someone who might be doing something in a moment of desperation?

The connection is explicitly in terms of the Bill. The Bill disapplies section 2 of the Suicide Act, which makes it illegal to assist somebody to commit suicide. It says that that section no longer applies.

This Bill assists people to take their own life—I will not use the word “suicide” if people do not like it. There are other eligibility criteria: I totally acknowledge the hon.

Member for Harrogate and Knaresborough pointing out that someone has to have a diagnosis of terminal illness, but that is not the point I am making.

I am making the point that, under clause 3, we are saying that somebody who wants to take their own life has capacity, according to the very low bar of having a settled and informed wish. We are assuming capacity in the person who wants to end their own life.

I suggest that that presents a real challenge to our national suicide prevention strategy—I will leave that point there, but I welcome any challenges to it.

I question whether the hon. Gentleman is making a false equivalence here in the very title of this Bill relating to terminally ill adults.

Upcoming amendment 339 to clause 4 addresses that specific point. The hon. Gentleman has been asked this a number of times today, but would he be satisfied if that amendment was passed?

Sorry—remind me of the detail of the amendment.

Essentially, the amendment would require that if a person is autistic or has a learning disability, they must be given accessible information and sufficient time to consider it. Additionally, there must be at least either a supporter or an independent advocate there.

That amendment was tabled by my hon. Friend the Member for Bexleyheath and Crayford and will be discussed later.

We are talking about a whole different area now, but I would say that, as a medical professional, if someone is gaining consent to a treatment it is in their code of practice under the General Medical Council that they explain all these things.

We do not need to write it into the Act; that is already in existence. A more general point is that there is a lot of stuff already in the public domain on doctors’ behaviour that does not need to be restated in the Bill.

The more we write, the more likely it is that it will be less safe for patients. I would keep it very simple.

I really want someone to explain this point to me: how can it make it more unsafe for patients to state the safeguards explicitly? How can it possibly make it harder, or more dangerous, if we specify what—as the hon. Gentleman said—is good practice currently, which the best doctors already do?

I greatly respect him and his medical practice, but is he really saying that every doctor conforms perfectly to the GMC guidance? There are obviously clear problems with the way in which some doctors operate, and this is uncharted territory.

Surely for the sake of doctors, as well as patients, it would be appropriate to specify explicitly how they should conduct these assessments, what communications they should make and what patients should be properly informed of. I cannot see how that makes it more dangerous.

I want to concur briefly with my hon. Friend the Member for Stroud; I have done a lot of research into this, believe me. We have the GMC, the British Medical Association and organisations that represent medical practitioners. They have very lengthy codes of conduct and behaviour codes.

What we cannot do—and I have tried—is to include all that in the Bill, and we have to be cognisant of that in some of the amendments that we make.

I am not saying that this amendment would make it more dangerous, but it would overcomplicate things. That is the point that my hon. Friend the Member for Stroud was making.

We need to have a very clear piece of good law, and I think the Bill already covers the points in amendment 50 and others, which I fully appreciate have been put forward in good faith. It is the clarity of the law that sometimes has to be the focus. I absolutely concur with the hon.

Member for East Wiltshire on safeguards, but unfortunately I feel that we will probably never get to a point with the Bill where he is happy with the level of safeguards, and maybe he is prepared to acknowledge that.

It is unlikely that I would ever vote for an assisted dying law but, if we are going to have one, I want to make it as safe as possible, which we all want. On those terms, in the spirit of a Bill that is going to pass, why not include these specific pieces of information? The hon.

Lady says that, while it would not make the Bill more dangerous, it would overcomplicate it. Again, how does it overcomplicate it to add a few clauses specifying information that must be clearly communicated?

Amendment 50 requires that whoever is medically assessing capacity is also able to understand the legal implications.

The final point of the amendment says that they have to understand what the insurance implications are likely to be, which would mean that they would have to inquire into the individual’s financial circumstances. They possibly might need to understand what provision they have made for their family.

It also references what the designation of death is likely to be, which again requires them to decide there and then what they will write on the death certificate, when it happens. As the hon. Member for Stroud said, much of what is in amendment 50 is already either in the Bill or implied by it.

As Ministers have said before, we have a duty to the statute book not to embroider it to the extent that it becomes overcomplicated and unworkable.

I do not think that any of us would necessarily argue with the points in amendment 50, other than perhaps the last one about legal expertise, but clarity leads to certainty, which leads to safety.

I want to pick up on a point that the hon. Member made before the previous intervention about the rights of the doctors themselves. This is an important point that we do not consider enough.

We talk a lot about the rights of the patient, quite rightly, but this Bill will provide the means by which another person can get involved in someone’s death. It is really important that the legislation protects the rights of that person—the doctor involved—as well.

Does he agree that providing greater clarity about the standard required to assess capacity will help the doctor to protect their own rights, perhaps in response to legal challenge from families, and that it is important that we consider the rights of the doctor as well as the patient?

The hon. Lady is absolutely right. It is an interesting irony of the Bill that it is presented as the free choice of individuals, but actually it imposes all sorts of obligations and repercussions on other people—the very term “assisted” conveys that.

Many other people will be affected by the decision to take an assisted death. She is right that it would be very helpful for the doctors to be confident that they have done their job properly because they have a clear list of communications they are expected to make.

My understanding is that doctors are indemnified against legal challenge in consequence of decisions they make around this; that is an interesting point and one that I am uncomfortable with, but we will come to that later in the Bill.

Leaving lawsuits out of it, from the point of view of the doctor’s professional conduct and their peace of mind, it would be very helpful for them to have it clearly specified what information they are required to convey.

I am grateful for Members’ interventions, and I appreciate the good faith and good sense that has been spoken, but I have not yet heard any reason for objecting to this amendment, other than the possible question of its being otiose and not necessary.

That is not a sufficient reason to object to an amendment. We should not be objecting simply on drafting grounds. There can be tidying-up exercises later if there is repetition. I have not heard objections to the content of the amendment, and I would very much welcome Members’ support.

Does the hon. Member agree that the amendment ultimately aims to provide clarity, and that clarity ultimately leads to safety?

My hon. Friend is saying that that will take two years. The MCA, which has been implemented over 20 years, is misunderstood. Does he not see the risk of two years?

We need to be careful when we say that the Mental Capacity Act is misunderstood, full stop.

Not full stop.

Well, that was the sense—

Order. Let the Member respond to the point made in the intervention.

I absolutely agree with my hon. Friend about that in most cases, but in nine of the 10 cases that went to court, young girls were found to have capacity, but their treatment was stopped, leading to their inevitable death. That is not excluded here.

We are debating lots of different things now, rather than just clause 3. There is an issue as to whether in those cases the individuals were found to have capacity, but we are talking about the process by which someone is found to have capacity, rather than what happens thereafter.

We have had that debate, and I am happy to have it, but we are talking now about the process by which people are found to have capacity. This is the problem with interventions: I have lost my train of thought. This is why people do not take them.

rose—

But I am happy to take another, although I may come to regret it.

I have a simple point to make; the hon. Gentleman can work out what he is going to say next while I make my brief intervention. The point is that the referral to a psychiatrist will happen if the doctor has doubts in their mind.

There is not an obligation on the doctor to refer; there is only an opportunity for them to do so, if they conclude that there is a reason. May I put a scenario to the hon. Gentleman? It is not clear whether this could happen under the Bill; well, it could happen, because it is not prohibited.

A private practice might establish itself to provide assisted death, with the medical assessments and the support right through to the end—to the final act. In those circumstances, if a patient goes to one of those clinics, does the hon.

Gentleman not see that there might be a risk that the whole incentive of the business, even if it is a charity, will be to expedite the process, tick the boxes and pass people through?

Does he not consider it dangerous that there is not an absolute obligation to refer to a psychiatrist and in fact, an obligation to pass a higher capacity test than the one that is currently in the MCA?

A handy household hint: Members do not have to take interventions if they do not wish to do so. If a Member wants to keep their train of thought, they should feel free not to take an intervention.

That was an intervention that I was grateful to take. I accept the point that there are dangers of a system that somehow incentivises this. That is why the Bill has to have such strict safeguards and such strict regulation of medical practitioners to comply with the law.

The point about mandatory referral is key; I would have real concerns about this area of the Bill without that amendment, and unless the sponsor of the Bill had not made it very clear that she would be supporting it. But I take the point.

Does my hon. Friend agree that clause 8(6), which requires the second doctor to be independent of the first—they must not be “a partner or colleague in the same practice or clinical team”— would protect against the situation on which the hon. Member for East Wiltshire speculates?

Yes, there are safeguards and mechanisms in the Bill to ensure that and to protect from a culture that would incentivise this practice.

Will my hon. Friend give way?

No, I am not going to, actually. I am taking my rights. My final point concerns section 1(4) of the Mental Capacity Act and the discarding of the principle about whether a decision is deemed to be unwise. This is an issue we have already debated, but it is really important.

Introducing a best interests test is, to my mind, impossible without ending up with a law that discriminates against certain groups. Essentially, it is impossible to do fairly. I remain to be convinced. If there were an amendment that could do what I think the hon.

Member for East Wiltshire wants, I would support it. If there were an amendment that could look into someone’s mind and make sure that they are doing this for reasons that society would deem fit, I would support it, but I think that that is impossible.

What the Bill aims to do is assess a person’s capacity and ensure that they are making this decision voluntarily. It also aims to protect them from the influence of third parties and outside sources. That is the only way, if this principle is to be adhered to.

Finally, I will be voting against the amendments, but I will finish where I started. I have genuinely thought long and hard, in particular about the presumption.

I have spoken to experts who disagree with me, but in my mind it comes down to whether we rip things up and start again or whether we add rigorous safeguards, practices and processes, which may be a bit more boring but will actually be more effective at protecting any patients who go down this road.

My hon. Friend is making a very important speech. Members have alluded to the provision in the Bill that the patient would be present and would potentially have an option to be reassessed.

We have heard evidence from various experts on capacity, particularly on the issues of coercion and vulnerability, and doctors have told us that it takes years to build rapport with people.

At the second stage, the doctor has to be somebody independent who nobody has met, so how would they be able to tease out whether that person has capacity and whether those other influences are affecting them? Does my hon. Friend share that concern?

I agree that when an independent doctor comes to assess a patient’s capacity and sees them for the very first time, they are more likely to be influenced by the assessment made at the beginning by the doctor who has known them for many days, weeks or months. I agree with my hon. Friend’s argument.

To be clear, the word “independent” means independent of the other doctor, not independent of the patient. The independent doctor could well know the patient. I hope that that clarifies that point.

But it could be the other way around. The Bill does not clarify that the second doctor would know the patient at all.

It is not guaranteed.

It is not guaranteed. I am grateful for that intervention. We have talked about training for all registered professionals who will be involved in the capacity assessments.

Order.