Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

Examination of Witnesses (Questions 240-242)



  Q240  Baroness Barker: Can I ask a question which follows directly from that and relates in fact to what you said. For some of us, the empowerment of individuals is an extremely important principle and one of the important principles of that is the principle that there should not be presumptions made against people in advance. My question to you is this: in putting forward proposals on assessment, which I would like you to come back to at a deferred stage, would you consider within that the issue of consent to assessment? I know that is not so pertinent to many of the people whom you are representing as it was to people yesterday, but there are key issues about people having capacity and moving to a state where they do not have capacity and that part of their transition is very important to them to maintain and to not have intrusions from the State because where I have profound disagreement is that it is always important that the individual is empowered above the State in these matters. So, could you take that and add that into the independence of advocacy services.

  Mr Broach: Yes. We are dealing with the most vulnerable group of adults in our society and we are dealing with a historic legacy of treatment for those adults which we have dealt with in the initial statement which does not meet with our expectations today and, yes, there will be the possibility of abuse in this legislation and that is why we think that the highest possible number of safeguards need to be placed on it. Then of course accusations are made about bureaucracy, but we think that the right to the person to make their own decisions and the person's interests should be paramount. So, absolutely we acknowledge the concerns that people will be pressurised or forced into doing something that is against their will within the context of this Bill. However, it provides for that and indeed there is a criminal offence that relates to it and there are provisions in the general authority particularly around the use of force that is completely unacceptable. In terms of the need for independent advocacy, that is again absolutely central to our concern. We are all here trying to balance the interests of carers and the people with disabilities or other conditions, and hopefully the majority of cases their interest will be in line but there are many instances where they are not in concord. It is not just the statement, you have to worry about family disputes and tensions and, in that context, independent advocacy is absolutely essential.

  Q241  Baroness Barker: That is why the issue of consent to assessment, which nobody else has talked about, I think is very important and I would like you to think about that.

  Mr Broach: It will be interesting for our group too because there will be people who are very vocal, very verbal and very articulate and able to say that they do not want their capacity to be questioned or challenged and, to an extent, that right should be respected.

  Q242  Lord Rix: There was some wording in the Journal of the Royal Society of Medicine which was quite useful. Would it not be helpful if this decision to make living wills official, as it were, be in the guidance of the Bill with the appropriate wording which will be not capable of getting misconstrued?

  Mr Broach: Absolutely. Guidance in this Bill will be absolutely essential and that will be one of the key aspects to it.

  Chairman: I am afraid that we are now technically inquorate because we require a certain number of Members of both Houses to be present. I was about to suggest anyway, as we have been going now for two hours, that we finish there. You have mentioned advocacy and I think it would be extremely helpful to us if you could put something in writing about the importance of advocacy and how you see it working. As regards the questions, which you have seen but which we have not reached, could you reply to those in writing. May I conclude by thanking you very much indeed for a most helpful session.

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