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The Chairman: With this it will be convenient to discuss new clause 26—Exceptions—
'(1) The duty to identify and consult an independent advocate in relation to serious treatment or major changes in accommodation and support arrangements for P shall be considered discharged by the relevant authority where that authority has consulted and accepted the representations of either—
(a) a donee of a relevant lasting power of attorney created by P, or
(b) a deputy appointed for relevant purposes by the court for P, or
(c) a donee of a relevant enduring power of attorney (within the meaning of Schedule 4) created by P, or
(d) an independent advocate already recognised by the relevant authority as representing the interests of P.
(2) Subsection (1) does not apply if—
(a) an agreement between person P and D cannot be reached about a decision or action and where D is employed by an NHS body or local authority social services or D is contracted by an NHS body or local authority social services in respect of the provision of care and treatment for P, or
(b) there is a difference in view between person P and any person who is consulted under section 4(6) and the decision or action is the responsibility of an NHS or local authority social services or organisation contracted by an NHS body or local authority social services.'.
Mrs. Humble: I am not entirely sure that I am able to move the amendment, but I seek the Committee's indulgence in speaking to new clause 26, which is linked to amendment No. 198.
The Chairman: For the avoidance of doubt, let me say that the hon. Lady can move the amendment.
Mrs. Humble: I would have expected the hon. Member for Sutton and Cheam to do so, because he is a co-signatory to the amendment.
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The Chairman: Order. We do not want to spend too much time worrying about that. Let us get on.
Mrs. Humble: New clause 26, which was tabled by my right hon. Friend the Member for Coatbridge and Chryston, would make it clear that if P already had a donee, deputy or independent advocate, a public authority would not be under a duty to provide an additional independent advocate in relation to decisions about serious medical treatment or changes in accommodation. The new clause would be especially relevant if P was having problems or difficulties with family members and there might be a dispute. It would place a duty on the appropriate public authority to provide an independent advocate if agreement cannot be reached between P and a decision maker who was employed by the public authority, or if the public authority becomes aware of a dispute between carers and P involving the provision of local authority services.
The amendment reflects the fact that P can be equally vulnerable when there is a dispute among the people providing him with care, treatment and support. Clearly, each group caring for P has legitimate needs, pressures and concerns of their own: as was said earlier, social services departments may face resource pressures, and relatives have their own concerns and needs. However, the Bill is about P. P is the most important person. Again, I urge my hon. Friend the Minister to accept the importance of independent advocacy to resolving disputes. The Bill is a golden opportunity to do that, and new clause 26 strengthens the centrality of P and P's needs.
Ms Winterton: I shall be very brief. Where there might be disputes among family members, we have said that we will look at the independent consultee service, and consult on whether it is appropriate to extend it into some of the areas that my hon. Friend has described. However, I believe that the amendment is unnecessary, and despite my hon. Friend's eloquent speech, I hope that she will consider withdrawing it.
Mrs. Humble: I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 38 ordered to stand part of the Bill.
Clause 39
Power to adjust role of independent consultee service
Question proposed, That the clause stand part of the Bill.
Mr. Boswell: The Minister has been helpful to the Committee in seeking to give further flesh to her developing thinking about the independent consultee service. After some rather triangular exchanges, she has suggested that she is minded to write to members of the Committee and flesh it out as much as she can. I understand the difficulties while consultation is in progress. That is characteristic of the Bill as a whole. Just because we have not left our gloves on the table during the Committee stage, it does not mean that we do not reserve the right to fling them down at a later
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stage. I am sure that the Minister and those who listen to these debates will be aware of that.
Within the exact context of the assurances that the Minister has already given that she is developing her thinking and might seek to widen the powers of the independent consultee, I would like to record in clause stand part the helpful assurances that we have already had, not only on the general framework, but in consideration of family disputes and the position of family members or day-to-day carers who feel unable to participate in the decision themselves, but would be happy for a third person to do so on their behalf. That will be helpful.
What has forcefully struck me—my understanding has firmed up during the debate—is the idea that we are embarked on a much bigger undertaking than we previously understood. The Minister has referred to 64,000 decisions, not individual cases, per year—much larger than in the whole history of the Court of Protection. The hon. Member for Chesterfield received a written answer on that specific subject the other day, and the numbers involved are different by an order of magnitude. I make no complaint about that, because the provision is meeting a need and the Minister is right to do that. However, not least because she has suggested that she would be minded to consider whether to have the affirmative procedure in relation to clause 39, she might like to give some thought to developing the idea.
The first development should be in the regulation-making process. Sometimes, provisions are made in legislation for first regulations to be subject to affirmative procedure, and for subsequent updating regulations to be subject to negative procedure. In other words, the thing is run past the House once, and then, as adjustments are made—the term is used later in the clause—those can be subject to the negative procedure. I am not advocating that at present, because I have not tabled an amendment on the matter—I am thinking aloud and sharing my thoughts with the Committee. I do not ask the Minister to give us an assurance today, but I hope that she will consider how she might bring to the House the process of developing the service and the decision-making that will flow from it.
To have an idea of the overall scope and then later to consider specific issues about widening that scope are two different things. When the Minister has consulted on some of the matters discussed in relation to earlier clauses—we will not return to them now—such as the definitions of an NHS body and a serious medical treatment, it would be useful to have a proper debate on that in this place, looking at the concept as a whole.
My second point is also for future consideration by the Minister as she develops her thinking. It relates to whether the independent consultee is a type of service. When I originally read the Bill, I thought in terms of a minority of cases in which there was a problem, and in which the independent consultee would operate independently—rightly—to deal with that particular problem and to give advice to the public authorities that were involved. However, given the scale and the aspirations that the Minister has set out for the
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service—what she likes to call advocacy plus, although some of us are sceptical—it is now clearer to me that we are really discussing a full-blown public service, albeit one delivered through local authorities or through the NHS locally. It is a panel of people.
The Minister will be aware that I have tabled some amendments about the role and function of the Court of Protection visitors, of whom there will be fewer and who are more specialist, suggesting that the Court of Protection may want to report to the Lord Chancellor and be accountable for the way in which it works. If that were to be the case, I would say, a fortiori, that the system of consultees is a big and important service, by which the Minister sets great store, and that she therefore might like to reflect on the mechanism by which it might report to Parliament. We can rest assured—hon. Members on both sides of the Committee have made it explicit—that cases in which a decision has been made, ostensibly with professional advice, that goes against what we or people close to P feel is in P's best interests, will remain part of the day-to-day casework of MPs. We are all agreed that there is a need for independent advice in such situations. However, if this service is to be introduced, we should consider whether we should draw it all together—perhaps by appointing a head of service or something similar—so that there would be some focus on the service that we could eventually run past Parliament.
I have brought with me, because it is a good and rather encouraging document, the new annual report of the Public Guardianship Office. I welcome that report, and will talk about it when we reach the appropriate point. I wonder whether we might have a similar report on the independent consultee service, so that we could begin to draw together the lessons and good practice from the experience of people carrying out that very important task for the person without capacity.
Ms Winterton: As I have said, we are considering the affirmative procedure in relation to regulations made under clause 39, particularly with regard to expanding the type of service that the independent consultees will offer and the people to whom it will apply.
The hon. Gentleman's second point was about the possibility of a report to Parliament. The NHS and local authorities will have responsibility for scrutinising the work of the consultees; their work comes under the remit of the Healthcare Commission and the Commission for Social Care Inspection. My initial reaction is that I would be hesitant about saying that we needed to build a whole new method of parliamentary scrutiny, because that might not allow the kind of developments that have been described, such as advocacy groups that operate locally, and might hinder our getting the sort of service that I have described. I am anxious not to establish something that will not allow people to build on that.
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