Examination of Witnesses (Questions 640-645)|
15 OCTOBER 2003
Q640 Baroness McIntosh of Hudnall:
So you would expect to see an appropriate model in a code of practice
underpinning the legislation?
Mr Clements: Yes.
Q641 Baroness McIntosh of Hudnall:
You said you felt that the question about more than one person
with lasting power was more complex. Can you just unpack that
Mr Clements: All I can say is
that in preparing this, we had quite a large group of lawyers
and the one who was very strong on this point is not present.
I did not understand the point, but I am not an expert. It is
something that we might deal with in written submissions.
Q642 Baroness Barker: This question
is about the advocacy service and the status of them. I am professionally
a very big fan of the advocacy service, but I wonder how it is
possible to ensure that an advocacy service is not a sort of second-class
service. I would like you, perhaps not now, to address for me
what happens when a client has an advocate and it is a community
care financing case and they are put against the local authority
solicitor. What happens then? Also if you were to write to the
Committee, I would like you to say a bit about the distinction
between lawyers who are bound by client confidentiality and the
Mr Clements: I have written a
very good book on the subject and I also run a postgraduate programme
in Warwick dealing with this particular issue because there is
no simple solution. I think what one has to remember is that confidentiality
is not an absoluteit is an issue which can yield in certain
situations (basically a qualified right) and although the presumption
is in favour of confidentiality, it has to give way at certain
stages. It is a hugely complicated issue in a fairly fast-moving
area because of the Human Rights Act. I am very happy to send
you a copy of my book!
Q643 Chairman: We touched on this
earlier, the question of public law protection. The Law Society
suggest that the Draft Bill should impose duties on local authorities
and the NHS to investigate the cases of suspected abuse of adults
who lack capacity. They further suggest that a Mental Health Commission
should be created to oversee the Public Guardianship Office and
the local authorities. If we were not persuaded to recommend that
such measures should be introduced how seriously do you think
the value of the Bill would be impaired?
Mr Clements: We really strongly
welcome this Bill. We would want this Bill to go forward. We give
it all encouragement possible. We regret strongly that there is
not a public protection provision in it. We are of the opinion
that inevitably legislation would have to be brought in to deal
with this. The High Court is now taking control of this and High
Court proceedings are expensive. Although we believe the Bill
would be less effective it would still be an extraordinary achievement.
Q644 Chairman: Moving on to public
funding for legal advice and representation, how do you suggest
that the new Court of Protection can be made accessible to people
with limited financial means in the context of increasing and
competing demands on the legal aid budget? Finally, an easy question:
is there any way of estimating the costs of all this?
Mr Clements: The only idea we
had on costs was to see what Scotland was spending on this matter
and multiply it by whatever the appropriate figure should be.
As I understand it, this Act has created no major case in Scottish
courts so it has not been a "nice little earner" for
lawyers, unfortunately, and therefore it may well be that the
cost impact is not as much as one might have feared.
Q645 Chairman: If colleagues have
no further questions, can I thank you very much for a very helpful
Ms Chapman: Thank you very much
for inviting us.