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Mental Health Bill [HL]

Perhaps I may just respond to the noble Baroness, Lady Finlay. In drafting the amendment people were trying to do the same as we discussed the other day in relation to impaired decision-making—to bring about an equivalent provision to the Mental Capacity Act but to lower the threshold because we have to deal with people whose decision-making ability becomes impaired. In so doing, an error has occurred in the amendment. It should make explicit that the decision either to withdraw or to give life-sustaining treatment has to be in writing. The noble Baroness will perhaps agree with me because she sat through all the long discussions on the Mental Capacity Act, when we went through these matters with great care and attention. Under the Mental Capacity Act there is no need for a withdrawal to be recorded in writing. That is to enable sufficient flexibility for the patient and the clinician to cover a change in the patient’s wishes or a change in the circumstances. Given the very strong views of the noble Baroness on this, I do not believe she would want to change that. I accept her point about the written record. One of the reasons why this sort of thing has crept in is—as I understand it, having read chapter 32(a) of the draft code of practice, where the Government set out their main intentions—that there is no distinction between patients who have capacity and those who do not. I wonder if the Minister could respond to that. I turn to the point of the noble Baroness, Lady Finlay, who asked which Act would come into effect. She will find that in another part of the draft code the Government make it absolutely clear that Part 4 of the Mental Health Act always has supremacy over any statement in the Mental Capacity Act. It is for those reasons that we on these Benches believe that there has to be an equivalent and that we therefore need these statements on the face of the Bill, as they are in the Mental Capacity Act.