Examination of Witnesses (Questions 560-579)|
15 OCTOBER 2003
Q560 Mrs Browning: Would you wish
to withdraw that?
Mr Clements: I accept what you
say on that issue.
Q561 Baroness Fookes: Inelegant or
Mr Clements: Inappropriate.
Q562 Huw Irranca-Davies: I am still
unclear. You mentioned earlier on the general principles. If there
were general principles that were underwriting this Bill in a
similar way to Scottish legislation then those could be fully
applied regardless of age, they are in effect general principles
to apply to any human being and yet, if I understood you correctly,
what you are suggesting is that there is a different approach
amongst these two different user groups and those general principles
need to be written differently and framed differently for those
two groups. I may be misunderstanding you.
Mr Clements: Again, I may have
been inelegant. What I was trying to say there is that these two
groups inevitably are dealt with by the Bill. I think the Bill
has to deal with a wide spectrum of incapacity problems. Somebody
at one end of the spectrum who really has very limited capacity
due to a progressive form of dementia and is elderly and a younger
person that is born with learning disabilities you would apply
the same principles to but the outcome would be different and
that must be the case.
Q563 Mrs Humble: I am afraid I am
still not clear what you are saying here. Why should the outcome
be different? Taking each decision separately and first of all
determining whether or not an individual has capacity and then
looking at whether or not they have the capacity to make a decision
in that particular circumstance, how can the outcome of applying
the best interests principle be different for people whether they
were born with a disability or acquired it through accident or
Mr Clements: I have accepted that
that was inaccurate. That distinction between those two groups
was inappropriate for us to put in the submission and I have accepted
that. What happened is that when we made the submission we put
in two groups, which was the one that had no capacity effectively
and the one that had only limited incapacity and those two groups
are dealt with in the Bill. The inclusion of the acquired deficiency
I think was unhelpful.
Q564 Laura Moffatt: We have talked
a little bit about the general principles today and in actual
fact we have spoken a lot about it in this Committee and we are
really trying to make sure this Bill is in good order. Could you
give us any other examples from any other jurisdiction or the
Scottish Bill as it exists that should be included or that you
believe would strengthen this Bill? As I have said, we have spoken
about the fact that you much prefer having some sort of general
principle over best interests. Is there any other example you
can give us?
Mr Clements: We have not found
any from any other jurisdiction in our searches. I am not saying
it is exhaustive but it has been quite thorough.
Q565 Laura Moffatt: Could you say
Mr Clements: We looked at the
jurisdictions of the United States, Canada and Australia and New
Zealand. As I understand it New Zealand was the blueprint for
the Scottish legislation and is to be preferred. We accept the
best interests list that appears in this Bill and we welcomed
it when the Law Commission published it and effectively it is
the same as the Law Commission's. Having had the benefit of what
has happened in Scotland, there is a convincing case for the inclusion
of the "no order" principle, which effectively is you
should not make an order unless there ought to be one, that the
least restrictive interference will be appropriate. The other
one that I can think of which would appear in the Children Act
is the issue of delay. The general principle of delay operates
against the interests of someone: it is another general principle.
Q566 Laura Moffatt: In your very
helpful written submission you suggest some different ideas for
the Bill that come from The Law Society and they are not taken
from any other Bill apart from the general principle issue from
the Scottish Act, is that right?
Mr Clements: We looked at other
areas, but insofar as it has been formed by anything substantial,
it has been from the Scottish experience.
Q567 Baroness Knight of Collingtree:
Coming back to this question that you raised of the difficulties
of the varying degrees even at varying times of people to make
decisions, I would like to ask you if you think that the draft
Bill as it stands places sufficient emphasis on the need to deal
with that particular difficulty and the need to facilitate the
communications of people who do have incapacity?
Mr Clements: The Scottish Act
is slightly stronger on this. We very much welcome what is in
the Bill, it is very much in accordance with what the Law Commission
did. The Scottish Act has a line and a half more about the efforts
that one should make to communicate and we would welcome that
expansion. We welcomed the fact that in this Bill there is that
emphasis but we think it could be tightened up a bit.
Q568 Baroness Knight of Collingtree:
This follows something about which you will not be aware but it
was something that was said to us yesterday. In your submission
you say a person should be free to take a risk, to make a capricious
or bad decision or one that does not appear to be in their best
interests so long as their capacity is not disproportionately
impaired. We need to have a little clarification of that bearing
in mind that we had some evidence yesterday that is rather different
Mr Clements: I think the classic
example will be the elderly frail person that wants to live at
home and everybody says that it is in his/her best interests that
he/she goes into a residential care home, or the family that is
caring for somebody with learning disabilities that has views
on those situations. These people should be allowed to take a
Q569 Baroness Knight of Collingtree:
Do you think, for instance, to cite a case that was put to us
yesterday, that if someone meets a visitor at their door and after
a short conversation writes a cheque for £5,000, there ought
to be some level of interference with that person's doling out
of their own funds or not?
Mr Clements: Yes.
Q570 Baroness Knight of Collingtree:
You think there should be some interference with it?
Mr Clements: Yes. The issue here
is what is proportional in any situation. It is part of the human
condition to take risks and that is what makes our lives fulfilling
and enjoyable. I fail to understand why the right to take risks
and to do things on a whim should be taken away from one group
of society, but obviously there are certain things that are outside
it. If somebody has not got the capacity to make a decision about
£5,000 then it should be a decision that is outwith their
ability, they lack the capacity to do that.
Q571 Baroness Knight of Collingtree:
You seem to be facing both ways on this. Is it not the case that
a person has a right to dispose of what is their own in the way
they think fit even if we do not think it is fit?
Mr Clements: Precisely. My colleagues
understand money much more than I do, but what I would say is
that of course you should have the ability to dispose of your
bounty as you wish as long as you comprehend the implications
of that situation. The capacity you need to give away £5,000
at law will be a different test to the capacity you would need
to give away £1,000 or £5, but providing you have the
capacity to do that we should allow people to do it. We all know
lots of very mentally capable people who use their money irrationally.
Q572 Baroness Knight of Collingtree:
Do you think the Bill actually does enough to make it easy for
decisions that people make to be properly conveyed? Is it easy
enough as it is or should we do more?
Mr Clements: We should do more
to facilitate communication with people with that mental capacity,
yes. As I say, the Scottish Act has an additional part about trying
to engage in communication and improve communication. I think
it is the experience of all the people who have come into contact
with learning disabilities that you need an enormous amount of
time to understand the level at which they are functioning and
that is something that cannot really be over-estimated, the amount
of time you need to spend with somebody which often lawyers do
not have and that needs to be stressed in the Bill.
Q573 Mrs Browning: I just want to
test where you are placing the balance between the right of the
individual to take risks and the responsibility that may rest
with social services, close relatives and others particularly
in the case that you yourself gave us of the elderly person who
wants to stay at home and categorically refuses to go into residential
care. We all know feisty old ducks, God Bless them, who say, "I'm
saying here and I don't care what the risk is, I'm going to carry
on", and that is fine, they clearly have made a considered
decision about it. More common is the case of the elderly frail
person with a deteriorating ability to feed themselves properly,
an increasing risk of falling, perhaps a history of starting to
fall and sometimes when they have the little buttons round their
neck and they do fall, they forget they have got one so they just
lie there on the floor until somebody happens to find them maybe
a day or two later. Where is the balance there?
Mr Clements: It is very difficult
to draw, is it not?
Q574 Mrs Browning: It is.
Mr Clements: What I would always
say is that the ability to have somebody make a capricious decision
is not unconstrained in the sense that I think we all have a duty
to cajole and give advice and give strong views to people like
that. With many of my clients I would say that this is ridiculous.
It is not unreasonable to cajole somebody, to give them advice
because we influence all the people we know about the decisions
they are making. I would not say to my daughters, "It's up
to you, I am not going to give you any advice", and I think
that we have the right to do that to people with learning difficulties
and elderly people as well. We can give them robust advice and
try and cajole them to do what we want but ultimately it is their
Q575 Lord Rix: You have concentrated
a little bit on money and elderly people in terms of freedom of
expression and freedom to spend it. Suppose a decision is taken
by a person to live in the utmost squalor, with animals around
the place being fed all the time and all the other things which
happen when you live in conditions which could adversely affect
your health, if that person appear to be in full control of their
faculties, how do you begin to gauge when you have to take steps
to improve matters with regard to their living conditions?
Mr Clements: You are asking some
of the very most difficult questions and they are probably social
work not legal questions. Under the National Assistance Act, section
47, there is power for authorities to intervene in situations
where there is an environmental health problem. As you may well
know, the research shows that when local authorities do intervene
to remove frail people from squalor situations they tend to die
Q576 Lord Rix: They may not be a
frail elderly person, they may well be someone in middle years,
Mr Clements: Most social services
directors would say that they have used their powers under section
47 in situations where it was the only thing they could do and
they did effect positive change. There is therefore clearly a
need for a power of that type.
Q577 Lord Rix: And you believe that
this Bill allows that to happen?
Mr Clements: The Bill does not
affect the National Assistance Act. Presumably this Bill would
leave that intact because these people would have capacity and
this Bill is not dealing with people that have capacity, therefore
the local authority would not be able to use any other power than
the National Assistance Act.
Q578 Mrs Browning: Is it not ironic
that in those sort of casesand we have all seen themthe
RSPCA would step in to protect the animals long before anybody
would step in to protect the person?
Mr Clements: Yes.
Q579 Mrs Browning: Is there not something
rather worrying about that?
Mr Clements: There certainly is.