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Standing Committee A
Tuesday 19 October 2004
(Afternoon)
[Mr. Alan Hurst in the Chair]
Clause 1
The Principles
Amendment proposed [this day]: No. 86, in
2.30 pm
Question again proposed, That the amendment be made.
The Chairman: I remind hon. Members that with this it will be convenient to discuss the following amendments: No. 1, in
clause 1, page 1, line 6, after 'unless', insert 'and until'.
No. 2, in
No. 3, in
No. 4, in
No. 91, in
clause 1, page 1, line 13, after 'made', insert 'for his benefit and'.
No. 5, in
No. 6, in
clause 1, page 1, line 13, at end insert—
'(5A) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity, shall if valid be treated as of equal validity as if it had been made by the person himself'.
No. 7, in
clause 1, page 1, line 15, after 'effectively', insert 'or adequately'.
No. 8, in
clause 1, page 1, line 16, leave out 'rights and'.
No. 90, in
clause 1, page 1, line 16, at end add—
'(7) An act done, or decision made under this Act for, or on behalf of, a person who lacks capacity must not be done in a way that is less favourable than the way in which it would be done or made by a person if they had capacity in a comparable situation.'.
The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. David Lammy): I think that I was coming to the end of my remarks and that I had begun to talk about amendment No. 8.
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Basically, one must consider the alternatives. First, it may not be necessary to intervene at all in a less restrictive way. If one needs to intervene, there may be an option that is less restrictive of the person's freedom of action and his rights. The amendment says that we should not consider the person's rights when deciding what is the least restrictive action, but only his freedom of action.
As I said this morning, one of the key aims of the Bill is to empower those who lack capacity and protect their rights. Just because someone lacks the capacity to carry out certain actions or to make certain decisions, it does not mean that he forfeits his rights. The rights of the person lacking capacity must be considered when deciding how to help him in the least restrictive way; indeed, we have had some discussion about that.
I will give an example. A young man with learning disabilities or learning difficulties has problems controlling the temperature of the water in his shower. He is unable to understand that moving the dial changes the water temperature. His mother does not want to interfere with his privacy by helping him in the shower, so she installs a new one with buttons that give out water at a set temperature. In a sense, that shows the interplay of rights, the less restrictive manner and the freedom of action, as I think is indicated in the amendment.
Mr. Tim Boswell (Daventry) (Con): What is troubling me is the view, which might be rather Olympian, that rights are inalienable anyway—if they are given under law, there is no need to talk about them—whereas freedoms and their restraint are a real issue. We will return to that again in relation to the Bournewood case. There was a certain uneasiness about the joining together of rights and freedoms, which is perhaps the motive for tabling the amendment.
Mr. Lammy: The hon. Gentleman is right that we will return to that issue. There is a fine balance in the Bill between the rights. He knows that people who care for those who lack capacity often have to do acts in connection with care that can involve restraint and invading freedom of action. I understand that his amendment cuts to the heart of the issue.
Hon. Members will see that I am not talking about a certain prescribed set of rights, such as those set out in the European convention on human rights, but about rights in the most general sense—the entitlement that every human being has and without which they cannot live a fully autonomous life. It is right that those who lack capacity should have those rights as well. That is why I gave the example of the mother who wants to ensure that a son who does not understand the dial in the shower does not burn himself, but who equally wants to ensure a balance between his privacy rights and other things. That is why we come back to the least restrictive manner and the terms in which the clause is couched. I want the rights of those who lack capacity to be respected as much of those of anyone else. I hope that I have covered all the issues that have been raised.
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There is one final point to make. The hon. Member for Daventry (Mr. Boswell) asked whether I could speak a little about the principles set out in clause 1 and how they relate to the rest of the Bill. I think that it is worth examining the reason why the principles are set out in the clause. Hon. Members may recall that the draft of the Bill, which was considered by the Joint Committee, did not have principles set out up front. The Joint Committee thought that a statement of the Bill's principles would be particularly useful, and it said in its report:
''We believe that such a statement inserted as an initial point of reference could give valuable guidance to the Courts, as well as helping non-lawyers to weigh up difficult decisions. Evidence given to us indicates this would be welcome to a wide range of those who have to deal with the problems of substitute decision-making in practice. We also believe that such a statement would be valuable in helping to frame the Codes of Practice based on the Bill.''
For that reason, we agreed with the recommendation and set out the principle.
The hon. Gentleman asked me to explain how the principles, particularly the one dealing with the Court of Protection, interact with the rest of the Bill. The principles sit at the heart of the new provisions in the Bill. For example, they make it clear that the starting point is that the person has capacity, and underlining that up front in clause 1(2) means that people will return to it.
2.36 pm
Sitting suspended for a Division in the House.
2.50 pm
On resuming—
Mr. Lammy: I have been on my feet for an hour and a half discussing clause 1, and I hope that I have dealt with all the issues raised. For all the reasons that I have outlined this morning and this afternoon, I ask the hon. Member for Sutton and Cheam (Mr. Burstow) to withdraw his amendment.
Mr. Paul Burstow (Sutton and Cheam) (LD): I should like to respond briefly to a debate that has seen the useful airing of quite a wide range of issues around principles and the details of amendments. I have learned a few new things, including about the insomnia of the hon. Member for Daventry and his being a serial amender, which I understand is not something that is cured when people enter Government these days. Sometimes amendments are still tabled at that stage. That is the end of the jokes, which were not very good. I shall now deal with the specific details of the amendments.
What struck me most about what the Minister said was the importance of decision making being centred on the person about whom decisions are made, and of that person being at the heart of the decision-making process. Proxy decision makers should not substitute their views, feelings, interests and desires for those of the person on behalf of whom they are making the decision. In so far as the principles in the Bill already
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ensure that that happens, they are a good start, and I hope that we can persuade the Government to reflect further on the matter at later stages. The hon. Member for Knowsley, North and Sefton, East (Mr. Howarth) made some excellent points from his own experience about how the principles contained in the Bill could make a significant difference.
I want to deal with my three amendments. The Minister says that amendment No. 86 is not needed because clause 1(2) and (3) and clause 2(1) cover it, and because the code of practice will give clear guidance. If that is to be the Government's position throughout the passage of the Bill in both Houses, the code of practice, from which he read an extract, has to be top notch in terms of delivering clear guidance. There are still issues about chapter 2 of the guidance, and the General Medical Council has made comments in respect of setting out how the principles work through. I am still not confident that the code is enough. There might still be an argument to say that the amendment or something like it should be included in the Bill.
The Minister said that amendment No. 90 is unnecessary. The most significant thing that he said in this debate—I hope that it will be taken into account when it comes to constructing what we as a Parliament mean in enacting this proposed legislation—was that ''best interest'' includes discrimination. He said that it was not in a person's best interests to be discriminated against. I hope that that important point will be taken clearly into account when courts make judgments about these things, as they inevitably will.
After our first sitting, members of the I Decide coalition rightly pointed out that the Disability Discrimination Act 1995 does not cover private acts, such as those of parents, informal carers and others. The DDA also excludes the decision-making processes of public bodies. A lot of things have an impact on the rights and life of a person who lacks capacity where the DDA's writ does not run. For that reason, I press the Government to consider further after the Committee stage whether there are ways to address my concern, which is shared by others, that we should ensure that a person who lacks capacity is treated no less favourably than one who has it, and that that principle should appear at the beginning of the Bill.
The Joint Committee argued cogently for a drawing together of the principles so that they were clearly stated at the beginning of the Bill for the benefit not only of professionals, but of lay people. It seemed to me that it would help to benefit lay people if we were to include right up front the statement that equal treatment is a principle that people must apply when they exercise proxy decision making on behalf of others. However, having listened to our very useful and fruitful exchanges today, and in keeping with the spirit in which the Committee is proceeding, I will not press the amendment. Instead, I will reflect upon what has been said with a view perhaps to returning to these matters at a later stage.
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