31.Further supplementary memorandum from
the Law Society (MIB 1215)
1. At 1.2 of our submission we take the
view that the Bill does not clearly distinguish between persons
who acquire mental impairment from those whose impairment has
always been present. As stated in the oral evidence, this was
an inelegant example and it is one which is best addressed through
the use of the general principles in the place of best interests
as proposed under the current Draft Bill.
2. This point was raised to differentiate
between facilitating and encouraging self advocacy from that of
substituted decision-making. In our view, the way the Bill is
set out, these two solutions are not adequately emphasised and
in our view this has caused many organisations promoting the rights
of learning disabled people to take the view that their rights
are being taken away. Our understanding is that the Bill is not
intending to do this and the way in which the general principles
are set out may assist the Committee in making their recommendations.
It is worth noting that the Scottish Bill was strongly supported
by many learning disability groups and was not the subject of
criticism in quite the same way as the current draft bill.
3. Details have been sent to supplement
our evidence in this regard separately.
4. A member of the Joint Committee took
the view that the question of reasonableness is always an objective
test. There is much case law on the issue of reasonableness and
whether this is an objective or a subjective test and in the view
of the Law Society it would be bad law to legislate using terminology
which may increase the likelihood of future litigation. For this
reason the Law Society takes the view that whether the reasonableness
here is an objective or a subjective test should be made clear
on the face of the Bill.
5. The suggested text by the Law Society
mirrors that contained in the Disability Discrimination Act 1995.
6. The Law Society agrees that a checklist
would be of some assistance in maintaining a standard for court
appointed deputies. However, the content of this list is a matter
that warrants careful consideration and our suggestions should
not therefore be read as exhaustive.
7. We are of the view that, in relation
to financial matters, there should be a requirement to provide
written financial information subject to a de minimus rule, for
example of an estate under £5,000. There should be a requirement
to seek the approval of the court in any matter that may have
significant effects, either on the financial estate or on the
care of the person, for example a change of residence or primary
carer. There should be a duty to report concerns such as suspected
neglect or abuse of primary carers. The code of practice may be
a suitable vehicle for further details and examples to illustrate
its application. The Law Society would wish to reiterate that
we believe deputies should be subject to a code of practice in
as much the same way as attorneys.
8. The Law Society have promoted the use
of mediation as a mechanism to assist carers, persons under the
Bill and professional bodies in the resolution of disputes for
which a formal court setting may not be proportionate. Some would
argue that mediation in principle sounds like a generally good
thing but in practice is expensive and does not resolve disputes,
especially in the case of litigious persons. The Law Society would
question this, although obviously there are litigious persons
and any amount of mediation will not prevent them wanting their
day in court.
9. By way of background, mediation was introduced
in the Family Law Act 1996 and pilot schemes were researched and
evaluated extensively. It is agreed that aspects of this provision
were problematic; in particular the fixing of timing at an early
stage of a divorce, and the limiting of compulsory consideration
of mediation to publicly funded clients. Many of these proposals
have since been mitigated and at a core level of family mediation
work is now firmly established within family proceedings in England
and Wales. Contrary to popular belief mediation has proved effective
in children disputes, especially those relating to contact. The
Law Society takes the view that there is a parallel in children
disputes in the case of persons who have mental incapacity. Disputes
may often be between different family members and may need input
from social services. Mediation is also widely used in finance
disputes. There are other small-scale pilots which have been available
on other types of ADR schemes.
10. Last year approximately 13,000 publicly
funded family mediations were conducted in England and Wales and
a significant number of disputes were settled as a result of family
mediation. Added to this there are disputes that may not have
settled immediately but were resolved relatively quickly as a
result of the family mediation. Even in cases where parties do
go on to litigate, the use of mediation often helps to clarify
and narrow the issues for the litigation process. Again a parallel
can be seen in how this would assist the work of the Court of
Protection. It brings a wider benefit by making the court process
more efficient. The Department of Constitutional Affairs is currently
looking at wider spread initiatives to increase the use of ADR
in other family proceedings. The Law Society would suggest that
this should also apply to persons affected by the incapacity legislation.
11. As stated in our oral evidence there
are many community mediation projects which are up-and-running.
For example, disputes which are often acrimonious, expensive and
drawn-out can be resolved highly effectively through the skilful
deployment of mediation. A number of local authorities have set
up or expressed an interest in mediation schemes to resolve neighbourhood
disputes. This has also been extended to other forms of disputes
such as anti-social behaviour. Although a direct parallel cannot
be made in the current legislative proposals, it does however
represent a network of mediation projects which is already up-and-running
nation-wide on which the DCA may wish to build.
12. Perhaps the time has come for mediation
to be nationally accredited and professionalised in much the same
way as the service of advocacy schemes.
13. In the Law Society's opening paragraphs
of the submissions to the Joint Committee, we stated that much
of the detail on which we comment may be intended to be included
in the code of practice. The Law Society would like to take this
opportunity to reiterate that on the assessment of capacity, the
BMA and the Law Society has some excellent guidance which is freely
available. An updated version is shortly to be published. We would
consider that this would be an excellent base on which to build
a code of practice in this area.
14. The Law Society very much welcomes the
pre-legislative scrutiny process as a constructive forum where
issues can be well thought out, researched and discussed in advance
of final drafting. It is particularly conducive to committee style
organisations where separate interest groups feed into a larger
body. This includes alliances such as the Mental Health Alliance
and the Making Decisions Alliance. The Law Society would like
to take this opportunity of thanking the Joint Committee for their
part in this process and we hope that the information we have
supplied will be of some assistance to you.