Examination of Witnesses (Questions 544-559)|
15 OCTOBER 2003
Q544 Chairman: Welcome. Thank you
for attending and for your written evidence. This session is open
to the public and it is being recorded for broadcasting. There
will be a transcript of the evidence which will be published with
the report and you will be given a chance to check it for accuracy.
If we are unable to go through all the questions or if there are
any other points which arise in the discussions which you wish
to address, perhaps you would be kind enough to write to us after
the meeting. We are not here to write a White Paper on mental
incapacity, we are here to deal with a draft Bill and all our
questions are structured around the structure of the Bill. Perhaps
you would like to start by introducing yourselves.
Mr Clements: I am Luke Clements,
a solicitor. Perhaps I will let my colleagues introduce themselves.
Mr Raymond: I am Peter Raymond,
a solicitor from Tunbridge Wells.
Mr Baker: I am Niall Baker, a
solicitor from Sheffield.
Ms Chapman: I am Vicki Chapman,
Head of Law Reform at The Law Society.
Q545 Chairman: Thank you very much.
What is the value of the draft Bill beyond putting into statute
what is already encompassed by common law?
Mr Clements: I think we would
have to answer that by saying that it is in facts two questions.
The first is it implies that the common law already deals with
many of the issues in the Bill which we do not believe to be the
case, but it also suggests that the common law is an adequate
substitute for legislation. The Law Society believe that in general
that is not the case. There may be situations where is it is better
to leave a matter in the common lawperhaps a fast moving
or particularly controversial area which may be the case in parts
of this Bill. In general we believe that there are very strong
policy grounds for having in statute, principles that may be distributed
through the common law. I deal a lot with the poorer end of the
market, if I might put it that way, with social workers and health
care professionals, with people who do not have money but have
particularly serious problems and in my view 95% or over of social
workers, health professionals and carers have not the slightest
idea what the common law situation is, they do not know what the
principles are, and if you were to say the principles are "best
interests" then in my view they would think best interests
is a paternalistic viewit is what we often call the lettuce
and the jelly situation.
Q546 Chairman: Perhaps you could
explain that, please.
Mr Clements: If you have a client
who has a severe learning disability or is confused, what is in
their best interests, is it lettuce or is it jelly? Many people
would say lettuce is in their best interests because it is good
for you and what have you, but if this person is an adult of some
age they may prefer jelly, and it is a hugely important issue.
I think what we want to get across is how important language is.
I know it may be an area where one says this is just semantics,
but it is incredibly important to get across to the general public
that this is a Bill about rights, rights for people with mental
incapacity and it is not the "state knows best" or the
"carer knows best". This is empowering people with limited
capacity and therefore we need to have principles, not best interests
and those principles need to be set out in the statutes so people
know what they are, very much like the Children Act transformed
what was a very uncertain position in the mid-1980s. In the mid-1980s
the common law dealt with the principles of children and many
very fine judgments have been made regarding what the principles
should be, but most professionals were in the dark on that. The
Children Act transformed that and now most professionals, if you
say to them "what is the situation?"would say
Q547 Chairman: The check-list in
the Bill of best interests, are they the same as those principles
or do you want the principles set out?
Mr Clements: We welcome the categories
that are called best interests. We have severe reservations about
calling them "best interests" because of the jelly and
the lettuce phenomenon.
Q548 Chairman: What is the term you
Mr Clements: We would call them
"general principles", very much along the Scottish line
and I think we would have to say that these general principles
would not just apply to one category of people who have got mental
incapacity, they would have to apply to all human beings and they
must be compatible with the European Convention. Therefore they
must start from the "no order" principlewhich
is that the state should not interfere in people's lives unless
there is strong grounds, not on the balance of probabilities.
So there is a presumption in terms of "no order" and
there should be the "least restrictive interference".
Q549 Baroness McIntosh of Hudnall:
You said this is a Bill about the rights for people with mental
incapacity. I wanted to ask you whether you mean it should
be a Bill about rights for people with mental incapacity or it
is one in its present condition. It was put to us yesterday by
witnesses from the Association of Directors of Social Services
that the danger that the Bill stood in was that if left as it
was it might become a charter for carers and service providers
rather than for service users.
Mr Clements: I have to say at
the very outset that The Law Society very warmly welcomes this
Bill and we do believe that it is an incredibly positive statement.
As we give evidence and when we talk amongst ourselves we must
keep reminding ourselves of the fact that we are in favour of
this Bill but we do have certain reservations about it. The biggest
reservation we have is the absence of public law protection for
people with limited or no realistic mental capacity. I think the
Bill is about the rights of incapacitated people, but it is a
major concern to us that it does not have more protection for
people. In my area of expertise, which is people who do not have
financial assets but who have capacity difficulties, I think that
abuse, sexual and physical, is endemic, it is a very wide situation
and it is not discussed. My colleagues, Peter and Niall, would
say that financial abuse is probably endemic and therefore there
is an absolute need for protection, but we do welcome this Bill
and we do strongly congratulate the Government or whoever for
bringing these things forward.
Q550 Chairman: Is the implication
of what you are saying that if the protection is not in the Bill
then the abuse, if it is not affected by the rest of the Bill,
would go on?
Mr Clements: I fear that the abuse
will go on whether it is in the Bill or not, but at the moment
I am continually being confronted by carers and social workers
who are aware of the abuse, but the police do not think there
is enough evidence and they feel powerless. There is a procedure
that the High Court is developing and the Lord Justice Sedley
said the need to develop it was because Parliament has been silent
and there is a need for somebody to do something, but that means
going to the Family Division of the High Court and that is very
expensive. We are very concerned about this situation.
Q551 Baroness Wilkins: Do you feel
that if best interests is replaced by your principles statement
then that would meet the fears of many of the user groups who
say this as a very repressive measure at the moment? Do you think
one could then sell it and that it would be seen as a Bill that
was protecting their rights rather than diminishing them?
Mr Clements: I think so. I think
that words are incredibly important in this area and I think principles
is really fundamental because I think most professionals will
only know one thing, "best interests" and it connotes
my headmaster talking to me rather than someone who is empowering
me. I do not think that would address all of these issues. The
general authority is something that I think many self-advocacy
organisations will have reservations about and I think we would
have reservations about that unless there is some counter-balancing
remedy for abuse. So I think it would be twin-fold, it would have
to have the general principles which would have to be largely
along the Scottish model of "no interference" and so
on and also some powerful remedies such as anti-abuse and probably
advocacy, including self-advocacy.
Q552 Baroness Fookes: Would you still
have objection to the term best interests if it was much more
clearly detailed what is meant in terms of the principles and
what should inform it?
Mr Clements: I am sorry to say
Chairman: I am afraid we will have to
stop for a few minutes while we have a Commons vote.
The Committee suspended for a division.
Chairman: Perhaps I could just ask Baroness
Fookes to repeat her question which you had just started to answer.
Q553 Baroness Fookes: You obviously
do not care for the best interests principle. Would you be more
accepting of it if it were hedged about with general principles
and very much more information as to how it is to be interpreted?
Mr Clements: There are two issues
that you are asking me to address. We think words in this area
are very important because there are six million carers, there
is hundreds of thousands of social and health care professionals
and if and when, we hope, this Bill becomes law they may get a
bit of training on this but it will be rudimentary and something
like a phrase best interests will stick and we do not think that
that is right at all. We believe there are principles that should
inform and empower. We support those principles that are under
the heading best interests in this Bill but we would add to them
particularly the two that I have mentioned that are in the Scottish
Bill, which is (a) no intervention unless it is clearly demonstrated
to be to the advantage, so the no order principle
Q554 Baroness Fookes: To the benefit?
Mr Clements: Yes, quite. Secondly,
that any intervention should be the least restrictive interventionboth
of which flow from the Human Rights Act anyway.
Q555 Mrs Browning: You have made
clear your support for the Scottish legislation in terms of general
principles, is that correct?
Mr Clements: Yes.
Q556 Mrs Browning: You think we should
look again at that in terms of this particular proposal in the
Mr Clements: Yes.
Q557 Mrs Browning: Why is it that
you feel one should distinguish between individuals with an acquired
mental impairment and those that are born with impaired capacity
given that the draft Bill requires every assessment of capacity
to be time and precision specific?
Mr Clements: That is a very good
point. It may be that in our submission we did not express that
as elegantly as we ought to. Again, words and meanings have particular
importance here. We have a perception that some aspects of this
Bill have been misconstrued by certain sections and one of them
relates to the fact that we are dealing with two groups. In my
opinion one group has effectively no mental capacity on significant
decisions and the other group who have limited capacity, who could
make decisions on certain issuesand with assistance and
encouragement could make more.
Q558 Mrs Browning: Just tell me which
category you are putting them into. You say one group has no mental
capacity. Which group are you saying has no mental capacity?
Mr Clements: I am saying on certain
issues some people would have effectively no mental capacity,
say an elderly person with advanced Alzheimer's disease. In that
area with a progressive illness one might have problems. A younger
person or middle aged or older person with learning disabilities
may have limited capacity on certain areas and on all areas would
have quite a lot to contribute towards a decision. These two groups
are inevitably dealt with in this Bill. The group that is capable
of self-advocacy to a degree is feeling that they are being dealt
with as though they have no capacity at all. We were trying to
express in our submission that these are separate categories,
of course they mesh into each other and somehow there would have
to be a mechanism to explain that they would have to be dealt
with differently because the principles would stack up differently
for both of them and it is that merger of these two groups that
has perhaps caused some of the disquiet.
Q559 Mrs Browning: I am still not
quite clear in my mind why you differentiate between acquired
impairment and those who are born with it. When a child is born
with a learning disability, for example, there will be some people
who will be on the spectrum and although they are born with a
learning disability and will inevitably die with a learning disability,
in between there are all sorts of situations that can improve
their ability to contribute towards decision-making. For example,
there is the technology that is used for people without any speech
or hearing and things like that and the support packages that
can make a huge difference to someone's ability to live independently
or not, and resources has been a big issue for us in terms of
whether what is deliverable has really got the resource base to
it. I am still not quite sure why you differentiate between born
Mr Clements: I think that is the
inelegant bit in our submission.