| Mental Capacity Bill
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Mr. Burstow: I want to use the amendment to pick up a related theme that also runs through other parts of the Bill: the period between 16 and 18 when substantial aspects do not apply to someone who lacks capacity. Clause 9 and clause 24, which is about advance decisions to refuse treatment, make it clear that both in the case of lasting powers of attorney and of advance decisions, P must have reached the age of 18. That means that those individuals are within the ambit of the Bill from the age of 16, but do not have the full benefit of the protections and opportunities in terms of the proxy decision making it envisages. On the point made by the hon. Member for Daventry, people cannot be designated as donees between the ages of 16 and 18 if they have incapacity. They cannot be given that role either. Mr. Boswell: The hon. Gentleman is on to a material point, but I am sure that he will be aware that if a young person with their own capacity were between those ages, they would not be allowed to make a valid will anyway now. There is quite a wide issue of application. Mr. Burstow: I take that point; it is an entirely fair one. I am seeking to get from the Government details about the issue of the interface with the existing children's legislation. Clearly, there is an issue that the ambit of the Bill is extended to those people post-16, but does the ambit of the Children Act 1989 still also apply to them? How do the two interface? How is that to be managed? Which courts will deal with them in that respect? Will it be the Court of Protection or other courts that would be more responsible for dealing with family, child protection and other matters? Where do they fit? As a result of this gap, it would be useful if the Minister spelled out the Government's thinking and how the interface will be dealt with. Mr. Lammy: Clause 2 makes it clear that when the Bill refers to a person who lacks capacity, that person will be 16 or over. Children, for these purposes, come under the jurisdiction of the Children Act. The amendment refers not to P—the person lacking capacity—but to D, a carer, and says that carers must be over 16 if they are to exercise any powers under the Bill, or, if they are under 16, they must be supervised by an adult. The Bill already says that donees of lasting powers of attorney and deputies must be 18 years or over. We have had some discussion on that and I want to associate myself with the remarks as to the distinction between what someone can and cannot do at 16 or 18. I say to the hon. Member for Sutton and Cheam that there is no contradiction in terms, and I want to explain why. Of course, the Government do not encourage children to take on onerous caring responsibilities but, as the hon. Member for Daventry said when he talked about real-world examples and issues, we must accept Column Number: 53 that a child may well carry out acts in connection with care—for example, for a brother or sister—that are not work as such but friendly actions. I fear that the amendment would create problems in families and make young people unsure about what they could and could not do.Let us take the example of a 15-year-old boy whose elder brother has learning disabilities. Every morning, he helps his brother to get dressed. Should he continue to do that? Should we interfere with that everyday occurrence in families in all our constituencies? Of course we are not attempting to interfere with that. It is right to remind the Committee that, to emphasise that day-to-day power, we renamed clause 5, so that its title refers to ''Acts in connection with care'', and changed the reference to ''general authority'', about which the Joint Committee had deep concerns. That has got us to where we are. Children under 16 may be perfectly capable of carrying out some actions, and I would not want to make them feel inhibited from doing so, nor would I wish to remove the protection afforded to them by clause 5. The Bill does not give people a general authority to act. Clause 5 provides statutory protections against liability in certain situations. If the clause did provide a general authority, I would be inclined to agree that children should not be given such an authority. However, many young people help to care for an older friend or family member, and I would not want to discourage that. The key thing to emphasise is that the Bill gives them a defence, not a general authority. Mr. Burstow: I have the impression that the Minister is concluding. I want to ensure that, before he does so, he addresses my concern about whether people without capacity, or with fluctuating capacity or whatever, who turn 16 will begin to enjoy the benefits of the Bill. They will not have the full benefits of the Bill until they turn 18. The question, therefore, is whether they retain any protections or benefits under the Children Act, or whether they move out of the protection of that Act and into a period when they do not have the full benefits and protections of the Bill. Mr. Lammy: I am grateful for the way in which the hon. Gentleman put his concerns. In relation to those who are 18, the clauses that he emphasised relate specifically to the acts of the proxy. The rest of the Bill—including acts in connection with care and best interests being central to some decision-making—relates to a 16-year-old. That is the balance, and that is why I said in my opening remarks that there is no contradiction. The Children Act relates specifically to minors, and the determination that we have mentioned is for minors up to the age of 16. Mr. Burstow: I think that I need support with communication today, because I am not getting my point across clearly enough. The issue is not about those acting as carers; it is about those lacking capacity who turn 16. Under the Bill, for two years they would not have rights to appoint a power of attorney or in respect of advance refusals. I am not necessarily saying that they should have those rights, but I want to clarify Column Number: 54 how that two-year period works in relation to the Children Act. Does anything in that Act continue to apply to them, as they do not benefit fully from the Bill?
4 pmMr. Lammy: The hon. Gentleman referred to the Children Act 1989. May I undertake to write to him in more detail on that issue? Mr. Boswell: Those exchanges were useful. I am sure that the Minister will want to copy the letter to the other Committee members; a real issue is involved. I would have some diffidence in extending the full monty to persons of that age, let alone having them as appointees for other people, without a broad reconsideration of the age of majority. I do not think that that is the issue. One would feel uncomfortable if such young people got into some lacuna between the protections that they enjoy as children and those that they would enjoy as adults with mental capacity, who may make their own disposition by will or advance decision, for example. We have not discussed the issue, and I will not go on about it now, but there is an argument for people to build their advance decisions into their will making. That would be an example of good practice for the future. To come back to the specific point, I understand what the Minister says. In practice, there is, rightly, a reluctance to put young people into the invidious position of having to take major strategic decisions on behalf of another person, be they their sibling, parent or whoever else. Equally, there is no bar on their being consulted about something when they know and love the person and may well have an informed view. However, children should not finally be put in the position of having to take the decision for the person who lacks capacity. That is not a problem. My concern is about what used to be called the general authority, which has now become:
The only point on which I would pause is that in civil law a young child is, at some point, below the age of suability, because they are not regarded as having capacity. The Minister will know more than I do about the matter; I need to check the exact age. In light of his remarks, I wonder whether the authority for care or treatment should extend to such a young person, on the grounds that there is no issue about their suability anyway. That may be a consideration. Having said that, there may be circumstances—one reads and generally rejoices about them—in which a very young child does some caring act. Perhaps their mother has been taken ill and lost consciousness; they may ring up the emergency services to say, ''Come and help'', or perhaps they loosen the person's collar and get them Column Number: 55 breathing again by whatever improvised means that they can use. Nobody would want to stop that, but he might like to pause on some of the issues.The matter should certainly not be pressed to a Division, but it has been important to clarify such apparently loose ends. I am grateful for the Minister's explanation, and I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 2 ordered to stand part of the Bill.
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