New Clause 5 — Appointment of independent advocates (No. 2)

Orders of the Day — Mental Capacity Bill – in the House of Commons at 5:15 pm on 14 December 2004.

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'(1) The appropriate authority must arrange, to such an extent as he considers necessary, to maintain the principles set out in section 1 of the Act, for independent advocates to be available to assist a person P when another person D is considering doing an act, or making a decision to do an act.

(2) The assistance available under the arrangements must include—

(a) assistance to permit an encourage the individual to participate or improve his ability to participate, as fully as possible in the act proposed to be done or the decision to be made affecting him;

(b) assistance to express the individual's past and present wishes and feelings, beliefs and values and other factors which he would consider are relevant to the decision or proposed action if he were able to do so;

(c) assistance to maintain the principles set out in section 1 of this Act.

(3) The appropriate authority may make regulations—

(a) as to the appointment or recognition of independent advocates for the purpose of this Act;

(b) as to the functions of independent advocates for the purposes of this Act;

(c) that a person may act as an independent advocate only in such circumstances, or only subject to such conditions, as may be prescribed;

(d) for the appointment of a person as an independent advocate to be subject to approval in accordance with the regulations.

(4) In making arrangements under subsection (1), the appropriate authority must have regard to the principle that support in relation to a proposed act or decision should, so far as practicable, be given by a person who is independent of any person who will be responsible for the act or decision.

(5) The arrangements may include provision for payments to be made to, or in relation to, persons carrying out functions in accordance with the arrangements.

(6) The appropriate authority may make regulations as to the specified circumstances in which independent advocacy must be made available which shall include considerations of a major change in a person's accommodation and/or support arrangements where the accommodation or support is to be paid for in whole or in part from public funds, or would be but for the fact the person's resources exceed those set in regulations under section 22 of the National Assistance Act 1948.

(7) A major change for the purpose of subsection (6) means any change to—

(a) accommodation for a continuous period intended to or likely to exceed 28 days or

(b) any new contractual arrangements for providing support, for a person who lacks capacity to agree to the changes, where accommodation or support is to be paid for in whole or in part from public funds, or

(c) where the arrangements need to be made as a matter of urgency.

(8) In this section "the appropriate authority" means—

(a) in relation to the provision of the service of independent advocates in England, the Secretary of State, and

(b) in relation to the provision of the service of independent advocates in Wales, the National Assembly for Wales.'. —[Paul Holmes]

Brought up, and read the First time.

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

With this it will be convenient to take the following amendments: No. 48, in page 19, line 10, leave out 'Independent consultee service' and insert 'Independent advocates'.

No. 49, in page 19, line 11, leave out 'independent consultees' and insert 'independent advocates'.

No. 50, in page 19, line 13, leave out 'independent consultees' and insert 'independent advocates'.

No. 51, in page 19, line 16, leave out 'independent consultees' and insert 'independent advocates'.

No. 52, in page 19, line 17, leave out 'independent consultees' and insert 'independent advocates'.

No. 53, in page 19, line 20, leave out 'independent consultee' and insert 'independent advocate'.

No. 54, in page 19, line 22, leave out 'independent consultee' and insert 'independent advocate'.

No. 55, in page 19, line 32, leave out 'consultee' and insert 'advocate'.

No. 56, in page 19, line 42, leave out 'independent consultee's' and insert 'independent advocate's'.

No. 57, in page 20, line 1, leave out 'independent consultees' and insert 'independent advocates'.

No. 58, in page 20, line 3, leave out 'independent consultees' and insert 'independent advocates'.

No. 34, in page 20, leave out lines 11 to 13.

No. 35, in page 20, leave out lines 37 to 39.

No. 59, in page 21, line 2, leave out 'independent consultee' and insert 'independent advocate'.

No. 60, in page 21, line 8, leave out 'independent consultee' and insert 'independent advocate'.

No. 61, in page 21, line 16, leave out 'independent consultee' and insert 'independent advocate'.

No. 62, in page 21, line 17, leave out 'independent consultee' and insert 'independent advocate'.

No. 36, in page 21, leave out lines 39 to 41.

No. 33, in page 22, line 2, at end add—

'or if accommodation would be provided but for the fact the person's resources exceed those set in regulations under section 22 of the National Assistance Act 1948.'.

No. 63, in page 22, line 12, leave out 'independent consultee' and insert 'independent advocate'.

No. 64, in page 22, line 19, leave out 'independent consultee' and insert 'independent advocate'.

No. 65, in page 22, line 31, leave out 'independent consultee' and insert 'independent advocate'.

No. 66, in page 22, line 33, leave out 'independent consultees' and insert 'independent advocates'.

No. 67, in page 22, line 38, leave out 'independent consultee' and insert 'independent advocate'.

Government amendments Nos. 15 and 16.

Photo of Paul Holmes Paul Holmes Shadow Minister (Work and Pensions), Work & Pensions, People With Disabilities, Non-Departmental & Cross-Departmental Responsibilities

New clause 5 continues a debate that occupied some time in Standing Committee. The Government propose to introduce independent consultees, along the lines of existing advocates, to advise NHS bodies and local authorities about what is in a person's best interests when a decision is being made about serious medical treatment, or before certain types of accommodation are provided. The Government also propose to provide £6.5 million to fund the arrangements, but only for persons without friends and family—the unbefriended.

Much of that is good, as far as it goes, but concerns remain. The Making Decisions Alliance encompasses some 40 different disability campaigning groups and has been at the forefront in expressing those concerns. It said that what the Government call the independent consultee service could cause confusion by becoming a rival to the existing independent advocacy services and it believes that there is no need for two such services. That is why new clause 5 would replace all the references in the Bill to independent consultees with the phrase "independent advocates". Advocacy services already fulfil the role of independent consultees and make representations to decision makers. There is no need for a completely new service, with a completely new title to explain what it does.

There is also concern about the restriction of the independent consultee service simply to the unbefriended. If the Government's advocacy-plus, as Ministers dubbed it in Committee, is to involve highly trained, skilled and experienced staff, why deny their services to those people who have family and friends?

Photo of Tim Boswell Tim Boswell Shadow Minister, Economic Affairs, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Work and Pensions)

I am grateful to the hon. Gentleman for giving way as it will save me having to speak in this debate. May I cite to him the example—it was mentioned in Committee—of cases in which there are family disagreements? In such cases, it may be important to represent the views of the person without capacity in an objective way.

Photo of Paul Holmes Paul Holmes Shadow Minister (Work and Pensions), Work & Pensions, People With Disabilities, Non-Departmental & Cross-Departmental Responsibilities

We did discuss that example in Committee and it would indeed be helpful if the independent advocate or consultee were available to all relevant people.

Photo of Rosie Winterton Rosie Winterton The Minister of State, Department of Health

In view of the time, perhaps I could take the hon. Gentleman back to the discussions that we had in Committee. I made it clear that we would consider how we could extend the role of the independent consultee in just the circumstances that Mr. Boswell outlined. I also said that it was important that we consulted widely on that before deciding absolutely who else should be included with the unbefriended.

Photo of Paul Holmes Paul Holmes Shadow Minister (Work and Pensions), Work & Pensions, People With Disabilities, Non-Departmental & Cross-Departmental Responsibilities

I welcome the Minister's reassurances on that point, but would the service be extended only in instances of family conflict about the advice given to family members, or would it be extended to those who are represented by friends and family but would benefit from the expertise of trained advocacy staff?

Photo of Rosie Winterton Rosie Winterton The Minister of State, Department of Health

That is exactly why we said that we wanted to consult more widely on the issue. Several examples might arise of circumstances in which people would feel that it was appropriate for an independent consultee to be involved, without upsetting the principle that if people were reaching decisions amicably we would not intrude in family matters.

Photo of Paul Holmes Paul Holmes Shadow Minister (Work and Pensions), Work & Pensions, People With Disabilities, Non-Departmental & Cross-Departmental Responsibilities

There is still a feeling in the Making Decisions Alliance that the family carer is in the best position to know the views and safeguard the best interests of the person involved, but the independent advocate— as a trained expert—is more likely to know how to navigate the system better. There would always be a complementary role for the advocate to add their expertise and training to facilitate the process, even when family and friends are present.

Photo of Rosie Winterton Rosie Winterton The Minister of State, Department of Health

Does the hon. Gentleman also accept that in some circumstances people might think that that was intrusive? The presence of the advocate could cause difficulties in families who are in vulnerable situations. We have to strike the right balance when making such decisions.

Photo of Paul Holmes Paul Holmes Shadow Minister (Work and Pensions), Work & Pensions, People With Disabilities, Non-Departmental & Cross-Departmental Responsibilities

The Minister is correct and the Committee received some evidence on that point from a Welsh organisation of families and carers, who perceived a danger of intrusiveness. However, I am sure that any Government organisation would take due care with that and not tread on people's toes.

New clause 5 tries to address two other concerns. One is that the Government version of an independent consultee is available only once it has been established that a person lacks capacity, but the experience of the existing independent advocates is that in many cases someone is thought to lack capacity, but is able to express their views when given the appropriate support. New clause 5 tries to extend the principle of independent advocacy to support people during the process of determining whether they lack capacity, as it will often turn out that they have capacity if given support.

The Making Decisions Alliance has lobbied the Government on the second concern. It sought and received Government confirmation that the overriding function of independent advocacy is to support the individual, rather than the decision maker. It is felt to be important that the Bill should be amended by new clause 5 to write that verbal clarification into the Bill.

Photo of Tom Clarke Tom Clarke Labour, Coatbridge and Chryston

I know that time is against us, but if my hon. Friend the Minister has the opportunity to confirm that instead of "consultee" the word "advocacy" will appear in the Bill, that would be very welcome.

Photo of Rosie Winterton Rosie Winterton The Minister of State, Department of Health

I know how strongly my right hon. Friend feels about that matter and I can give him—

It being half-past Five o'clock, Madam Deputy Speaker put forthwith the Question already proposed from the Chair, pursuant to Order [this day].

Question put, That the clause be read a Second time:—

The House divided: Ayes 106, Noes 345.

Division number 13 Orders of the Day — Mental Capacity Bill — New Clause 5 — Appointment of independent advocates (No. 2)

Aye: 105 MPs

No: 344 MPs

Aye: A-Z by last name

Tellers

No: A-Z by last name

Tellers

Abstained: 1 MP

Abstained: A-Z by last name

Question accordingly negatived.

Mr. Deputy Speaker then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour, pursuant to Order [this day.]