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Ms Winterton: Again, I sympathise with the concern of my right hon. Friend the Member for Coatbridge and Chryston to ensure that someone's wishes about participating in research that were set out when the person had capacity should be taken into account when that person lacks capacity and certainly before a researcher involved that person in some form of research project. However, I cannot be so accommodating with the amendment as I have been with other proposals. One of the problems with the amendment is that, in some senses, it is unnecessary because clauses 32(2) and (6) make it clear that a researcher must take reasonable steps to identify someone who, other than in a professional capacity or for remuneration, is engaged in caring for P and consult that person on P's participation.
Clause 32(6) makes it clear that that person could be an attorney, which means it is already clear that, if P wished his attorney to be consulted on participation in research, that should happen. The amendment has mistaken the reason for an LPA. In making an LPA, a person is not necessarily setting out his wishes or feelings, but giving another person the authority to make specified decisions on his behalf and to give substitute consent. If someone wished to set out his feelings and wishes about research, an advance statement would be the appropriate place to do that.
Mr. Boswell: If someone had appointed a person as his attorney, but at a time when he had capacity and that appointment was included in a deed that specified conditions for research, it would be an advance statement of his intentions. It would be unethical or improper for the attorney to go against those wishes, so the attorney could not make a decision to involve the person in a research project anyway.
Ms Winterton: The Bill makes it clear that an advance decision to say that someone did not want to participate in research has to be respected. It allows for attorneys to be consulted as part of the process, but clearly to give an attorney powers in respect of research, without safeguards, might remove some safeguards from the incapacitated person's participation because the decision would be a substitute decision made as though by a person with capacity. We understand the concern to ensure that an attorney should be fully consulted when appropriate, which relates to our previous discussion. As I said, the
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Bill already requires that the attorney should be consulted—a fact that we shall reiterate in further guidance.
As for the point made by the hon. Member for Sutton and Cheam about advance decisions under the Bill, a clause states that the wishes in advance decisions about research must be respected. We want to ensure that there is flexibility for an individual to be able to reflect on what P might have wanted in those circumstances. There is the ability to state wishes and feelings in advance decisions. We want to retain that flexibility, but also to be able to take full account of the wishes and feelings of the individual, although it will not necessarily always be through an LPA that those wishes and feelings are reflected.
I hope that my right hon. Friend the Member for Coatbridge and Chryston accepts our concern that we do not want to bypass some safeguards in the Bill by allowing substitute consent in respect of research. I ask him to withdraw the amendment.
Mr. Clarke: I am particularly interested in my hon. Friend's definition of the role of attorneys with regard to this aspect of advance decisions and the Committee probably finds her explanation helpful. I realise that the mistake I made when speaking to the amendment was not to say that it was probing. Each time I probed, however, I got something, so I have received a helpful response. In that spirit, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 33 ordered to stand part of the Bill.
Clause 34
Appointment of independent consultees
Mr. Burstow: I beg to move amendment No. 170, in
clause 34, page 19, line 11, leave out subsection (1) and insert—
'34 Appointment of independent advocates
(1) The appropriate authority must arrange, to such an extent as he considers necessary to maintain the principles set out in section 1 of the Act for independent advocates to be available to assist a person (''P'') when another person (''D'') is considering doing an act, or making a decision to do an act.
(2) The assistance available under the arrangements must include—
(a) assistance to permit and encourage the individual to participate or improve his ability to participate, as fully as possible in the act proposed to be done or the decision to be made affecting him;
(b) assistance to express the individual's past and present wishes and feelings, beliefs and values and other factors which he would consider and are relevant to the decision or proposed action if he were able to do so;
(c) assistance to maintain the principles set out in section 1 of this Act.'.
The Chairman: With this it will be convenient to discuss the following: Amendment No. 171, in
Amendment No. 172, in
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clause 34, page 19, line 17, leave out from 'independent' to end of line 18 and insert 'advocates'.
Amendment No. 173, in
clause 34, page 19, line 20, leave out 'consultee' and insert 'advocate'.
Amendment No. 174, in
clause 34, page 19, line 22, leave out 'consultee' and insert 'advocate'.
Amendment No. 175, in
clause 34, page 19, line 25, leave out 'advice' and insert 'support'.
Amendment No. 176, in
clause 34, page 19, line 42, at end add—
'(9) The provision of assistance may result in the proposed decision or action not taking place under the provisions of this Act.
(10) Nothing in this section obliges P to accept the assistance offered by an independent advocate.'.
Government amendments Nos. 224, 227 and 233.
New clause 3—Advocacy service—
'(1) The appropriate authority must make arrangements to secure advocacy in decisions relating to—
(a) making and reviewing of care programmes
(b) decisions of residence.
(2) the appropriate authority must fully note decisions made in these matters and the reasoning behind them.'.
New clause 4—Duty of care of a local authority—
'Where a local authority have reasonable cause to suspect that an adult who lacks capacity who lives, or is found, in their area is suffering, or likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the adult's welfare.'.
New clause 27—Appointment of independent advocates—
'(1) The appropriate authority must arrange, to such an extent as he considers necessary to maintain the principles set out in section 1 of the Act for independent advocates to be available to assist a person ''P'' when another person ''D'' is considering doing an act, or making a decision to do an act.
(2) The assistance available under the arrangements must include—
(a) Assistance to permit and encourage the individual to participate or improve his ability to participate, as fully as possible in the act proposed to be done or the decision to be made affecting him.
(b) Assistance to express the individual's past and present wishes and feelings, beliefs and values and other factors which he would consider are relevant to the decision or proposed action if he were able to do so.
(c) Assistance to maintain the principles set out in section 1 of this Act.
(3) The appropriate authority may make regulations—
(a) as to the appointment or recognition of independent advocates for the purposes of this Act.
(b) as to the functions of independent advocates in relation to sections New Clauses 2 and 3.
(c) that a person may act as an independent advocate only in such circumstances, or only subject to such conditions, as may be prescribed;
(d) for the appointment of a person as an independent advocate to be subject to approval in accordance with the regulations.
(4) In making arrangements under subsection (1), the appropriate authority must have regard to the principle that support in relation to a proposed act or decision should, so far as practicable, be given by a person who is independent of any person who will be responsible for the act or decision.
(5) The arrangements may include provision for payments to be made to, or in relation to, persons carrying out functions in accordance with the arrangements.
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(a) For the purpose of enabling him to carry out his functions, an independent advocate—
(i) may interview in private the person he has been asked to support and
(ii) may examine any record of a prescribed kind which the person holding the record considers may be relevant to the independent advocate's investigation.
(6) In this section and section 35, ''the appropriate authority'' means—
(a) in relation to the provision of the services of independent advocates in England, the Secretary of State, and
(b) in relation to the provision of the service of independent advocates in Wales, the National Assembly for Wales.'.
Mr. Burstow: I shall take a leaf out of the book of the right hon. Member for Coatbridge and Chryston by saying immediately that the amendments are intended to probe the Government. I hope to test his theory and find out whether that evokes a more positive response, although perhaps the theory works for some and not for others. Nevertheless, that is the intention behind the amendments, although we also want to help to provide greater clarity on the purpose of, and intention behind, independent consultees, which is what this clause and the subsequent three or four clauses deal with. We also want greater clarity on the issue of advocacy, which is a cause of great concern for many organisations watching our deliberations and awaiting the Minister's response with interest.
Advocacy is one of the matters that the Joint Committee, appointed last year to scrutinise the draft Bill, had occasion to look at in great detail. In almost every submission that we on the Joint Committee received—there were perhaps one or two exceptions—the view was that advocacy was one of the keys to realising the potential of what was then the draft Mental Incapacity Bill. Advocacy was a means of enabling people to have as much autonomy, and realise as much of their independence of action, as possible. Having independent advocacy as a right was to be a key part of that. The organisations that made those points to us included the Making Decisions Alliance, People First, the Association of Directors of Social Services, the Law Society and Citizens Advice. The Disability Rights Commission also made clear representations on the Bill, which I will refer to later.
In the Joint Committee's evidence sessions, it was clear just how fragmented, piecemeal and patchy advocacy services are. In parts of the country, there are advocacy services par excellence, which are beacons that provide a model that others could follow. In some areas, such services are frankly ropey, while in others there is no discernable advocacy service. The picture across the country is variable. To date, the Government's approach has been to respond to particular interventions and amendments tabled to legislation, often by Government Members.
The Government have extended rights of advocacy, but have done so in fairly narrow terms. For example, the last but one piece of NHS legislation provided for the independent complaints and advocacy service. Some would argue that that is a fairly narrow interpretation of what advocacy is all about, because the focus of that service is on facilitating use of the
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complaints process and supporting people through it. My concern, and the reason for the amendments, is that to many people the provisions in the Bill are not even a form of advocacy. At very best, they are a narrow interpretation of what advocacy is about.
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