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by the House of Lords, House of Commons,
Joint Committee on Human Rights
Scrutiny of Bills: Final Progress Report, 2003/4 (HL Paper 210
HC1282)
From Appendix 1: Questions sent to Mr. David Lammy
Question 1. Why has the Government not adopted the recommendations of the Joint Committee that the use or threat of force or other restriction of liberty of movement be expressly confined to emergency situations?
Question 2. What are the Government's reasons for saying that the Bill is compatible with Article 5(10(e) ECHR when its provisions enable deprivation of liberty without being based on objective medical expertise?
Question 3 Does the Government intend to extend the scope of Clause 28 to make clear that nothing in the Act authorises anyone to admit a person into hospital against his or her will where the conditions for compulsory admission or guardianship under Part 11 MHA 1983 are met?
Question 4 If not, what are the reasons for the Government's view that there is no incompatibility in this respect between the Bill as it stands and Article 5 ECHR?
Question 5 What possible solutions to the problem of the "Bournewood Gap" are currently being considered by the Government?
Question 6 In view of the urgency of remedying the deficiencies identified by the European Court of Human Rights can the Government assure the Committee that the necessary remedial measures will be introduced into the current Bill to ensure Parliament's early attention to the problem?
Question 7 What is the reason for not requiring that advance directives carry the additional safeguard of having to be made in writing?
Question 8 Is it the Government's intention that a specific advance refusal of ANH would be required in order to be effective as an advance directive?
Question 9 If not, will the guidance in the Code of Practice make clear to people making advance directives that ANH is regarded as treatment and that an advance directive refusing life-sustaining treatment may therefore be interpreted as extending to a refusal of ANH?
Question 10 In the light of the Burke judgment, will the Government be amending clauses 24-26 of the Bill to enable advance directives to be made requiring ANH to be provided, and if not, why not?
Question 11 Will the Government now consider tightening the safeguards in the Bill in light of the Burke judgment?
Question 12 Will the Government amend the Bill to require that any authority to refuse consent to ANH in any instrument creating a power of attorney or any order appointing a deputy by expressly and specifically conferred?
Question 13 What is the reasoning behind this departure from the wording of the Convention?
Question 14 In light of the above, what are the reasons for not following the structure and language of Article 17 of the Convention in relation to the nature of the benefit required in order for research to be permissible in the absence of consent?
Question 15 What is the reason for providing weaker additional conditions than the Convention?
Question 16 Please provide more detail of how the "appropriate body" which will be specified in regulations will conduct its work for deciding whether or not to approve a particular research project.
On the 18th November the Committee sent these questions to Mr. David Lammy, the Minister in charge of the Mental Capacity Bill. They also asked for a description of any representations he had received in connection with the Bill in relation to human rights issues.
They asked for a response "as early as possible, and in any event no later than 15th December."
On 16th December 2004 a wordy reply arrived from the Minister. Only one
question (7) had any effect on the Bill, now an Act: Advanced
Directives must be made in writing.
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Questions sent to Mr. David Lammy