Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence


Examination of Witnesses (Questions 440-459)

MR JOHN DIXON AND MR GRAHAM COLLINGRIDGE

14 OCTOBER 2003

  Q440  Baroness McIntosh of Hudnall: How would we write on to the face of the Bill the kind of language that would prevent that from being possible?

  Mr Collingridge: We have had some thought about this since we saw this question and we are wondering whether or not it is not the right question.

  Q441  Baroness McIntosh of Hudnall: You think of the question and I will ask it!

  Mr Collingridge: We do not think it is simply a question of tweaking a few words in a clause. Going back to the earlier point about citizenship and advocacy, if that is there then I think people will have more confidence that their needs and rights are being met.

  Baroness McIntosh of Hudnall: Maybe.

  Q442  Lord Pearson of Rannoch: My Lord Chairman, I am not quite sure whether my question should come under the first question or this one, but I wonder if I could put a question, speaking as a parent on behalf of the families of the severely learning disabled, or people with a mental handicap or intellectual disability—however you choose to describe it? I notice in your submission, MIB1040, under paragraph 2 showing the five areas of involvement which you see social services departments having, you do not actually mention liaising with families. As I expect you are aware, thousands of families of mentally handicapped people do feel they get bogged down and are not particularly well-helped by social services. We have indeed, if I can just quote it very briefly, a supplementary memorandum from one of our Scottish witnesses, looking at the experience so far of the Scottish Bill. She says: "Unfortunately, some of the practices of certain local authorities have been viewed as bullying tactics by relatives and carers, where situations of resistance arise, particularly as regards where an adult should reside." She goes on to say "The particular problem is when the family feels that the adult should continue to reside in a care home setting but the local authorities insist that the adult moves out to live in the community", and she gives various examples. Do you accept that there has been a problem in this area? How do you see the families of these people being helped; perhaps their wishes being balanced in future with those of the professionals in general? Or do you, when you refer to service users and citizenship and advocacy, really feel that a lot of these families are not very helpful and that their views are not quite, perhaps, as accurate and professional as your own?

  Mr Dixon: No. Firstly, I should say that usually it is the parent who knows more about the child and the needs of the child than any professional.

  Q443  Lord Pearson of Rannoch: I agree.

  Mr Dixon: It is the way in which parents have fought for the needs of disabled children which has begun to force the sea-change in public attitudes that I was referring to earlier. In the time that I have worked within social services I think we have come to the era of professionals being much more humble than we were in the past, because we do not have any monopoly on knowing what is right. I think the valuing people proposals are very, very helpful in that way, and I think we are constructing a new way of hearing what people say and responding to it. That is, of course, service users but it is also families, particularly when you are talking about disabled children who could, of course, often be adults.

  Q444  Lord Pearson of Rannoch: I am grateful for that. Of course, a lot of the parents who are looking after many of these people are now starting to die at a greater rate. You would be quite happy to see parents and families becoming deputies, providing that there were not obviously after Aunt Agatha's money?

  Mr Dixon: Yes, we would.

  Q445  Stephen Hesford: Can I bring you back to what you were speaking about before because, speaking for myself, I am quite confused by it? This Bill has a functional approach and we have heard evidence that that is in fact a struggle. What you seemed to be saying before was not a functional approach, and it seems to do with the issue of human rights. If this Bill was human rights compliant (a) would that not deal in part with what you were speaking of before? The Scottish legislation, which we have heard quite a bit about, does not deal with advocacy on the face of the Bill, and we have heard that that functions satisfactorily, certainly as far as the Scottish system is concerned. It does not mention citizenship at all either, but it has a series of principles. What is the difference between what you were saying before, what we have got in front of us and what the Scottish Bill does and how can you firm it up—in terms of a clause or something that we can get a grip of—in terms of speaking about advocacy and citizenship? I just could not get a grip of what you were in fact saying to us.

  Mr Dixon: I think it is a question of whether you see yours as being able to capture the sort of shifts in public policy and ethics, rather than simply being functional. I saw the way that the Children Act described a new definition, as it were a contract between the state and families and children, as representing a significant difference. I do not think this Bill begins to approach that yet, and that is what I am sorry for. I am not a legal draftsman, so I could not comment precisely on how it should be put into effect, but I think that it should be able to capture the changes in public policy that have taken place in recent years and to, as it were, hand them across to local authorities and others to begin to take them forward in practice.

  Q446  Chairman: If we did decide to include the principles of the Bill at the beginning, which has been suggested of course, that would help to meet your point?

  Mr Dixon: It would indeed.

  Q447  Mrs Browning: Can I explore this a little further because I am rather in sympathy with the case you are making. At the moment, and I include myself in this, for those of us who are involved very much with adults with learning disabilities and the sort of problems they come up against, one of the biggest problems is that there appears to be no real statutory framework against which one challenges. Ultimately, in case work, much as one loathes to do it, one gets to a point where the advice is to test it in a court. I am sure you will agree it is becoming far more frequent now to challenge social service departments in the courts on behalf of adults with learning disabilities.

  Mr Dixon: Yes, indeed.

  Q448  Mrs Browning: Do you see what you are proposing helping to minimise that recourse to problem resolution? I am hesitant because the resource implications of it are enormous. However, at the moment the resource implications are enormous because you are having to call expert witnesses across the legal process, etc etc. Do you see that helping to minimise the challenges through the courts?

  Mr Dixon: Yes, I do. I think there is a place for law in providing that framework and in prodding local government to move in that direction. The resources that are spent in this area in relation to the legal challenge, at the moment, are significant but not overwhelming. It is, really, the resources which are spent on poor quality treatment and services for people with learning difficulties that are the real crying shame.

  Q449  Mrs Browning: I agree with you.

  Mr Dixon: Having somebody in a very expensive place inappropriately is bad for everybody and bad for the public purse. Obviously, I speak from a very pragmatic point of view rather than specifically from a legal point of view, but I do know the help there can be in having a good framework.

  Q450  Mrs Humble: I am not quite as phlegmatic as either you or Angela Browning that this Bill will actually help you. Anyway it goes back to Lord Pearson's point about the role that parents have to play in this. I tell you why I have one or two concerns, for two reasons. One, traditionally social services has been in the risk business. Social services push people as far as they can go, and for the group of people that this Bill is concerning—either those who totally lack capacity or, more importantly, those who have variable capacity—the social worker temptation is always, always to push them as far as they can go in making decisions on managing their own lives. Yet parents get desperately worried about that. Many of the disagreements between social services and parents are because the parents want to cocoon that child as it becomes an adult and well into adulthood and want them protected—want them in the care home or nursing home—and social services say "Actually, your adult offspring can, with support, be in the community and should be engaging with the community". So there is always that tension. Specifically, this Bill makes reference to the fact that the person with a variable capacity, especially, or even somebody who has capacity and then is likely to lose it, may make decisions that you or I disagree with. We have to accept that those decisions are ones that we do not agree with. So will that not add to some of the very difficult decision-making processes that social workers have to go through? They already have an extraordinarily difficult job to do but when they are having to deal with parents who, by and large—and I am generalising—are very protective, and are having to deal with people where they have to, because of this Bill, acknowledge that neither the social worker nor the parent may agree with those decisions, will this not, in fact, make your job even more difficult? Tell me it will not.

  Mr Dixon: I think people have a right to make decisions which are independent of professionals and independent of their parents. That is important, and we need to ensure that they can do that. On the other hand, I think one of the reasons that parents have difficulties with social service departments and why they are anxious about protecting their children is because they very often have little or no guarantee that they are going to get services. If you have fought for services for your child for 20 years against an unforgiving system which has only allowed you services inch by inch, I think you get desperate. As you get older you are worried about what is going to happen when you are too frail to look after your child. I think it creates a feeling of protection as opposed to risk-taking. I would not want to criticise colleagues, but when saying that you can take a risk with this child it is the parents who are going to be around if it falls down; the social worker may have moved on or whatever. I think it is much more about creating a partnership between us, as social service departments and parents, in a mature way. I think if we have a framework which enables us to do that it will make our job easier, because we cannot be adversarial.

  Q451  Huw Irranca-Davies: Can I ask you to help me summarise the preceding discussion? In terms of the Bill as a whole, as it is currently presented, and the rights of the individual—the user of these services—what we have in the Bill is an improvement but it is not bold and ambitious.

  Mr Dixon: Indeed so.

  Q452  Huw Irranca-Davies: The Scottish Bill, from what you were suggesting, would be an improvement even further in terms of this clarification of the rights of individuals. What you are putting to us is that you would like us to have a step-change, in effect.

  Mr Dixon: Indeed.

  Q453  Huw Irranca-Davies: Which would be way above what the Scottish Bill has and certainly what this has at the moment.

  Mr Dixon: That is indeed it. I think the problem is that in the public policy of this country we are moving fast on child care policy and it is very exciting. In relation to older people there is great ferment about what should happen and so forth. However, in relation to people with disabilities it is in the "too difficult" box. There is a tremendous amount of change in there, I think, waiting to get out. Talking to service users and their parents, I think there is a great opportunity to move things forward. It would encapsulate quite a lot of what is beginning to be around in government policy, which is very helpful.

  Q454  Baroness Knight of Collingtree: I do want to come back to the question of resources. I notice that when you were writing on Clause 16, your second point on that clause was "the extension of the powers to welfare decisions is likely to result in additional demands on services which are already at capacity." Now some of us, particularly those who read in the newspapers of unfortunate cases where a child somehow or other slips through the net, are only too well aware that every social worker seems to have about 103 cases each, and how on earth any more could be accommodated is something that we are going to have to look at very hard, and you have drawn our attention to it. Have you been able to make any reliable and detailed estimates of what this would all cost in terms of extra staff, extra money, training resources and so on? How will the Bill be properly implemented unless a lot more is spent, and have you any idea how much money that will be or where those resources could come from?

  Mr Collingridge: The short answer to your question is no, we have not done the detailed work. We have started in the last couple of months to talk to the Department for Constitutional Affairs and Department of Health about what the areas are. I think our response mapped out some of the issues. In the last few weeks we have been looking at what the likely demands through the adult protection system are, etc etc, but we have got a very long way to go at this stage. So we are just mapping out what are the various factors that we need to put into the equation, and we have now identified groups of people that can start to do that work.

  Q455  Baroness Knight of Collingtree: Am I right in thinking that the same people who will be called upon to implement the welfare sections in this Bill are already pretty well overworked as it is?

  Mr Collingridge: You are quite right. That is a major concern, and if the adult protection arrangements that have started to come in start to bear down and you have this as well, then, yes, there are lots of opportunities for increased demands, and we do not know how we will meet those at the moment.

  Q456  Baroness Knight of Collingtree: Are you ready to try and bring in some regulations within your own departments to make sure that certain sections of your department are not going to suffer by having a sudden movement of social workers away from them?

  Mr Collingridge: One of the issues is that there are not duties under this Bill for local authorities to act under it. I think that is even the case at the moment with adult protection, except for a more general duty. So you will find, as you go around the country, very different responses to the same set of policies. We have that at the moment with the current Court of Protection arrangements. My authority in Hampshire has quite a well developed system; John's next door, until recently, did not do very much. I think unless there is adequate resourcing, and it is going to have to come not from local taxation but centrally, then I think authorities will decide probably not to implement parts of this Bill effectively because they cannot divert resources from, for example, facilitating early hospital discharge.

  Q457  Baroness Knight of Collingtree: Of course, there is not a lot of point for us in this Parliament passing Bills that have sections within it which cannot be implemented, which might be a difficulty. Since you raise the question of the Court of Protection proceedings, this does really raise another cost implication. Do you think that the costs of that should be met from central funds, and do you think that Legal Aid should be called in to help with the cost of other parties?

  Mr Collingridge: We do think that, yes, local authorities should be assisted with the legal costs of doing that. We have had a look, for example, in our own authority about the costs of one case, and if you get a complex case it is £7,000 to prepare it and, perhaps, £15,000 or more to go through the full legal system. We have got two of those at the moment, and that is more than the cost of a social worker each year. When you start to look at the implications they are quite significant and I do not think that local taxpayers can be expected to meet all those costs.

  Q458  Baroness Knight of Collingtree: It certainly is emerging that you are as concerned as we are about this matter. Finally, could I ask you whether in preparing the Bill the Department for Constitutional Affairs has consulted either adequately or inadequately with the local authorities on this whole question?

  Mr Collingridge: They have consulted with us. It is not adequate yet. We have had some initial discussions with them about the resource implications. At the end of August they issued a request to map out the information implications in terms of publications, and we found that perhaps up to 50 publications might need to be altered—five or six substantially. In terms of anything else we have not really begun the process.

  Q459  Baroness Knight of Collingtree: Is it recognised that this is only the beginning?

  Mr Collingridge: Yes.


 
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