Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

Examination of Witnesses (Questions 700-703)


21 OCTOBER 2003

  Q700  Mrs Humble: The advocate is not the decision maker, the advocate is the voice of the person who is at the centre of the discussion. It happens now that the advocacy services engage with families where the view of the parents, may be about the future care of an adult child in a household, is at variance with the views of that adult child and so the advocacy service gets involved but as the voice of that person so that voice is heard. I have met individuals in these circumstances where they feel reluctant to argue against their parents, because they care about their parents and they do not want to upset them, but they also feel very strongly that they have a different perspective and what they want is that perspective to be heard. At the end of the day the decision will be made by the professional taking into account the views of that individual and if that voice is then handled by the advocacy services so be it but we should take into account the views of the individual and the views of the parents. Like Laura has been saying can we look at this draft legislation to make sure that the voice of the individual is heard and is heard directly wherever that is possible or indirectly through an independent voice plus the concerns of carers and professionals so all the people involved can be heard. How can we frame that in the legislation?

  Mr Sugden: It has got to be codes of practice, has it not, surely? Certainly the Bill as it stands is absolutely first class, that is a personal view. Codes of practice: that is where the nitty gritty has got to be really ground out, that is the way personally I see it. We have to tackle these different things. What is more it is quite possible there is a different code of practice—this is me talking not RESCARE—for the grouping that we happen to be involved with compared with, let us say, those with Alzheimer's disease or whatever it might be, who have been perfectly okay in the past.

  Mrs Pearson: May I just say I think there can be a real problem in finding the voice of the person. I have had this experience myself and I know many people who have as well. My daughter is at the upper end of ability, if you like. She does not have legal capacity but she is perfectly articulate and she is plausible and she is able to make day to day decisions and be very definite about what she wants, and obviously we encourage that but she is very suggestible, she is very vulnerable and she wants to please whoever talks to her. It depends entirely how you put the question how she will respond. If you have an advocate who has an axe to grind to the extent that they might be employed by the authority—we have been through this mill ourselves so I know—if you as the family have a dispute, not with your child but with the authority and the authority then comes in with their advocate, independent perhaps but only slightly independent, you then have a problem that there can be pressure put on that very vulnerable person. In a sense there is a conflict that is not really a conflict with the person at the centre, the conflict is between what the family believes to be the right course and the best course for their vulnerable relative and the authority who has a different agenda. Do you see what I mean?

  Q701  Mrs Humble: Yes, I see what you mean. It goes back to a question that I asked Dr Brook earlier about if we were to proceed along the lines of suggesting that an advocacy service is very important for the successful implementation of this proposed legislation, then it is the issue of how that is defined, monitored, supervised?

  Mrs Pearson: It is so subtle. This is what is difficult. It is so subtle. The people who were speaking in the first session, I am sure that with the majority of the people they represent there would not be a problem, they would need encouragement, support and perhaps help reading things and understanding. It is a completely different ball game from what we are talking about. Even my daughter who, as I say, if she was sitting here, she would be very well behaved, she would listen, she might even pitch in on one or two points but she would not have the foggiest idea what we were talking about and she would not understand the consequences of any decision she made. It is another way of communicating with the person and an advocate, somebody from outside, with the best will in the world will have a job to discover what her real wishes and views are. Even those change from day to day, month to month, year to year because she cannot weigh up things in the balance and she cannot understand the consequences. Only people who know her very well and consistently and observe her minutely—when I say "her" I am talking about many other people like her who I know also—only someone who has that knowledge is going to be able to pick up the signs really and help her to identify what she wants. You cannot do that if you come in and see a person half a dozen times.

  Q702  Mrs Browning: Very quickly to pick up on that point and also to pick up a point that Joan Humble made. You said in your response then it will be the professional who will decide. Parents spend their lives battling the so-called professionals.

  Dr Brook: I quite agree with you.

  Q703  Mrs Browning: Whether they are social services who have not got the resources and try and fob you off with something totally inappropriate or whether it is psychiatrists who really do not know one condition from the next but think they do. We had an admission of that when we questioned the psychiatrists. I just have to say to the parents here I think the point you have made, and the point Mary Pearson has just made, struck home because where I am very concerned, Chairman, and we have put this question to various witnesses, is where the balance falls. I am in favour of the principle of independent advocacy but when somebody has to go that extra mile to take on and challenge the so-called professionals it is not going to be an independent advocate who is going to run with it.

  Mr Cramp: That comes back to the point I was making about the appeal system. One thing I strongly believe and I understand about independent advocacy, they can be the best people and they can be the bad people but I think if you have the option and put it in the Bill, either the Bill itself or the code of practice, that person chooses who they are then I think you go some way to that. Also I think you can still challenge it through the court protection if that system is set up but again it comes down to resources and it depends who is committed to doing that.

  Chairman: I think there are two large areas which we have not got time to consider properly, assessment of incapacity and best interest. If you would kindly write to us on those areas that would be helpful. We have had a useful discussion. We have spent a long time on advocacy which is so important in your circumstances and of course in the circumstances of the first group. It has been a very useful afternoon I can assure you. Thank you.

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