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Mr. Lammy: I take the hon. Gentleman to clause 6(6), which is included to ensure that despite the prohibition on clause 5 acts in clause 6(5), life-sustaining treatment, or acts necessary to prevent a serious deterioration in the condition of a person who lacks capacity, can safely be given without fear of liability if there is an issue that needs to be resolved by the Court of Protection. That is probably where the medical staff take a different view of best interests from an attorney or a deputy.
The protection offered by clause 5 is aimed at those who do acts in connection with care and treatment. We have already discussed that. Clause 5 provides a defence to the doing of an act that might be unlawful .
The protection offered by clause 6(6) is necessary because of the prohibition on doing a clause 5 act that conflicts with the decision of an attorney or deputy, as set out under clause 6(5). It is unlikely, for example, that an instruction to a member of staff to do an act
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could itself amount to an act to which clause 5 would apply. Therefore, the prohibition on clause 5 acts in clause 6(5) would not apply. Even if such an instruction could amount to a clause 5 act, it would be covered by clause 6(5) in any event, because it would be an ''act'' in its own right. For that reason, we think it is caught by clause 6(5). I hope the hon. Gentleman will withdraw his amendment.
4.15 pm
Mr. Boswell: That was a most eloquent explanation, which allayed one of my fears at the expense of creating another. I appreciate that we cannot proceed backwards through the Bill, but the logic of what the Minister has said is that there could be a problem with clause 5 acts. If such acts were commissioned by somebody, the commissioner would not be protected, even if, as I understand from what the Minister has said, the person who carried it out might be.
That would not be an extraordinary situation. Leaving aside the context of a threat to life, as set out in clause 6, about which the Minister has spoken, somebody might say, ''Will you do this for me?'' or, ''It's my day off. Could you do the care act?'' Someone might instruct a person to do something, and might not carry out the act themselves. It should be clear that, assuming that the act is decent and done in good faith, neither the person who commissioned the act nor the person who carried it out should be subject to an action in tort. Perhaps we cannot resolve the issue, and I am not sure that we should jog back and debate it extensively—but does the Minister understand what I am concerned about?
Mr. Lammy: I am not sure that the commissioner would necessarily be committing a tort. The issue relates partly to the debate that we had a little earlier, and may be illustrated in the letter that I undertook to send to the hon. Gentleman.
Mr. Boswell: I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Mr. Boswell: I slipped up and did not table an amendment about this issue, but will the Minister consider subsection (7)? It states:
'' 'Life-sustaining treatment' means treatment which in the view of a person providing health care for P is necessary to sustain life.''
My difficulty with that is in the reference to ''a person''. As the Minister has said, there will often be a large number of people in a team providing health care for a person, certainly when that person is suffering from a life-threatening condition. Is the Minister saying in effect that the view of a single person in such a team would constitute an absolution from the provisions of subsection (5), or is he saying that the team would have to come to a collective decision? That is a potential difficulty, which the Minister might like to consider.
Mr. Lammy: May I consider it?
Question put and agreed to.
Clause 6 ordered to stand part of the Bill.
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Clause 7
Payment for necessary goods and services
Mrs. Browning: I beg to move amendment No. 107, in
I am mentioning this amendment just so that the Minister can clarify something. It was tabled by the Liberal Democrats, and would mean that payment for necessary goods and services should be made
''with consideration to his means''
by the person who lacks capacity to whom they are supplied. Will the Minister comment on that? A wide scope of goods and services is covered by the clause, and normally many of them would be subject to some form of means test to establish whether they should be provided by social services, with or without a contribution from the person. Will the Minister clarify the intention and say whether he feels that advocacy services, which might be needed, come within the scope of ''payment'' under the clause?
Mr. Boswell: To save my having to make a point on clause stand part, I shall say now that there is a difficulty in the amendment, which is why I did not rush to move it. It creates an interesting principle whereby goods and services, whether or not they are necessities, would be charged for differentially according to the means of the person. We all know people who are relatively poorly off, and I am sure that they would like to get their milk at half price, but unless there is a specific provision—by way of tokens, vouchers or some other system—that is not how the market works. I am not sure whether the Liberal Democrats had that in mind when they tabled the amendment. Charges should be reasonable, but they should not be stepped by reference to means.
There is another separate problem with persons who may not be at arm's length from each other. If the milkman was providing the service and happened to know the family, they could—and sometimes would—charge more, rather than less, and seek to get some advantage from the situation. The common law principle probably avoids that difficulty, so that nobody would be able to rip others off in that way. Perhaps the Minister will reassure me and make me feel a bit happier about that.
Mr. Lammy: The amendment would mean that the person lacking capacity would not have to pay a reasonable price for necessary goods and services, but only a price that he could afford; the contractor would need to take his means into account when setting the price. I appreciate that the hon. Gentlemen who tabled the amendment wanted to ensure that when a person who lacked capacity entered into a contract for necessary goods and services, his ability for them should be taken into account. However, the clause also protects individuals and organisations supplying goods or providing services, including businesses and tradesman, who are entitled to receive a reasonable price when they provide the necessary goods or services to someone who lacks capacity.
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I see no need for a contractor to expect to set prices differently for a person who lacks capacity. Just because someone lacks capacity, that does not mean that they should pay less for goods and services. That would be contrary in presumption and feel to the way in which we generally handle things in common law. That does not mean, however, that if someone enters into a contract that they did not understand, it would be voidable under English law. There is a distinction for necessaries, which is the category into which such a contract would fall.
Mrs. Browning: We are talking about people who lack capacity, and one assumes that the contract and purchase are made by a third party on their behalf, because they would not be contracting directly with people. My interpretation of the clause is that the third party is making the contract or purchase for P. For example, if D were looking at a range of wheelchairs for P, and there were certain categories of wheelchair that they would get assistance to purchase, it would be inappropriate for D to contract on P's behalf for something that was outside their means. In addition, however, where, because of means-tested benefits, it was applicable for them to have support in purchasing such a thing, that would need to be taken into account. I am not making myself clear, Mr. Cran, and I am sorry about that—and I can see that you are trying to encourage me to wind up. It would not be acceptable for D to purchase a super-duper catalogue wheelchair well in excess of the needs, because P's means would not cover it, and something lesser might do.
Mr. Lammy: No, the Bill does not allow a third party to contract without formal authority—and we shall go on to discuss that, in terms of becoming an attorney or deputy. Clause 7 allows a contract to continue with the person who lacks capacity, but in fact, the third party can pay for that contract under clause 8. For the reasons that I have set out, and given our earlier discussion about fluctuating capacity and other matters, it is not right that someone who enters into a contract for necessary goods should have to pay less than the rest of us.
Mrs. Browning: That has clarified things. Thank you.
The Chairman: Is the hon. Lady withdrawing the amendment that she moved?
Mrs. Browning: I did not mean to move the amendment; it was simply a probing, clarification exercise. However, if I need to do withdraw it I shall.
The Chairman: You did indeed move the amendment.
Mrs. Browning: Then I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 ordered to stand part of the Bill.
Clause 8
Expenditure
Mr. Boswell: I beg to move amendment No. 22, in
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I am conscious of the hour, so I shall be brief. The amendment is part of a sequence of probing amendments designed to enable us to understand how such important clauses will work. There will be other opportunities to discuss powers of attorney and the implications and obligations at a later stage. The Minister will know—indeed, the chairman of the Court of Protection has already made it clear—that there are real worries that people already in fiduciary positions who undertake matters on behalf of other persons may abuse that trust and, sadly, do so from time to time. I appreciate from the explanatory notes and the text of the Bill that the clause is set in the context of necessary acts under clauses 5 and 7. It is not self-evidently about huge expenditure, although over time it could involve significant amounts.
The amendment would provide that some appropriate accounts should be kept. Clearly, if a situation arose in which a financial attorney needed to wash up, that would be a reasonable request to make. The financial attorney would say, ''If you can't provide the receipts, how can we pay you?'' Presumably, there might have to be litigation about such matters. As a matter of good practice if nothing else, some basis of receipts and accounting should be available to provide an audit trail for the expenditure, because by definition, the person involved lacks capacity and needs to be protected.
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