Published: 17/02/2005, Volume II5, No. 5943 Page 14

If you think the 'Bournewood Gap' is a beauty spot in the Chilterns you have clearly not been concentrating on the Mental Capacity bill, formerly the Mental Incapacity bill, as it staggers towards the statute book before parliament is dissolved for the election.

To be frank, nor have I. There was a flurry in this column when Iain Duncan Smith joined what I crudely call 'the Catholic lobby' in the Commons to protest at what critics call 'backdoor euthanasia'.

A second, noisier flurry occurred when poor David Lammy, who lost control of a bill when junior health minister, lost it again on this bill at his new department, the Department of Constitutional Affairs. This time it was over letters being exchanged between Tony Blair, DCA boss Lord Falconer and assorted anxious bishops.

No one had told Mr Lammy and MPs were cross. Not his fault, but it doesn't help when soppy journalists are tipping you to be Britain's first black prime minister.

But that was then. Since that day the bill has been assailed more forensically (as usual) in the Lords where ministers are supposed to be closing the Bournewood Gap, among other things. Last week the bill was also worked over in a report by the Lords/Commons joint committee on human rights.

Like most politicians when noone is looking, the JCHR tries to do good. It studies bills, EU judgements, and letters from interested parties. It makes sensible, civilised suggestions.

To refresh your memory, the need for such a bill has been around for ages. It is very tricky: hence the delay.

Key concepts include: the presumed right of every adult to make his/her own decisions; where there is mental incapacity, decisions must be made which are least restrictive of basic rights, specific to a given situation; we should all be guided to participate as much as possible in such decisions and must retain the right to make daft ones if we prefer.

What with dementia (700,000), severe learning disability (145,000), severe brain injury (120,000) and schizophrenia (1 per cent of us at some stage) There is a lot of incapacity about. The bill seeks to protect the vulnerable - for instance by creating a lasting power of attorney and a court of protection.

What the bill is not about - begging IDS's pardon - is bumping people off on the quiet or withdrawing artificial nutrition and hydration and letting them die in pain. That is the theory.

All good stuff. But what a practical minefield. Only last week, Lord Brennan, a distinguished judge and Labour peer (yes, he is a Catholic), tried to amend the bill to stop decisions being taken on the basis that they might be 'wholly irrational' and cited the mass suicide of members of an American cult in Jonestown, Guyana, 20 years ago.

All right, not a typical day in Bournewood - which is, incidentally, a hospital in Surrey where the treatment of a detained, incapacitated patient, done without seeking their active consent or rejection, was taken all the way to the European court.

The court wants the care gap closed. But the devil is in the detail and the bill's explanatory notes run to 18,988 words on 205 clauses.

Cost, did I hear you ask? Nearly£20m for Mr Lammy's department to set it up. As for the Department of Health's set-up costs of£11.4m, running costs of£18.5m (for England alone, Wales will spend 6 per cent of that), training costs of£8.2m a year, costs of timeconsuming processes£12m etc. The main burden on the private sector will fall (again) on care homes.

Personally, I find the pro-lifers' 'slippery slope' approach excessively suspicious: the fear that care homes, nurses and family-members-whowant-the-loot will use the new act to kill off the oldies.

But I have been impressed to read their probing questions in the Lords, even though Baroness Knight of Collingtree's more alarming charges of creeping euthanasia were not confirmed by colleagues.

As usual the Daily Beast has been whipping up moral panic, though elderly peers have a personal interest in fair play. I rang the minister in charge, Baroness Ashton (a mere 48), to confirm that the bill will pass by Easter, but she had collapsed with flu. As for the Bournewood Gap, her husband was authorised to inform me: 'We are working on it.'

Michael White is political editor of The Guardian.