Clause 1 - The Principles
Mental Capacity Bill

Mr Alan Hurst (Braintree, Labour)

I remind hon. Members that with this it will be convenient to discuss the following amendments: No. 1, in

clause 1, page 1, line 6, after 'unless', insert 'and until'.

No. 2, in

clause 1, page 1, line 7, after 'capacity', insert

'relevant to the particular situation'.

No. 3, in

clause 1, page 1, line 7, at end insert—

'(2A) Even where a person may lack capacity, he is entitled to respect for any feelings he may have'.

No. 4, in

clause 1, page 1, line 11, at end insert

'or has made unwise decisions in similar past situations'.

No. 91, in

clause 1, page 1, line 13, after 'made', insert 'for his benefit and'.

No. 5, in

clause 1, page 1, line 13, after 'interests', insert

'or in accordance with his advance decision under section 24 of the Act'.

No. 6, in

clause 1, page 1, line 13, at end insert—

'(5A) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity, shall if valid be treated as of equal validity as if it had been made by the person himself'.

No. 7, in

clause 1, page 1, line 15, after 'effectively', insert 'or adequately'.

No. 8, in

clause 1, page 1, line 16, leave out 'rights and'.

No. 90, in

clause 1, page 1, line 16, at end add—

'(7) An act done, or decision made under this Act for, or on behalf of, a person who lacks capacity must not be done in a way that is less favourable than the way in which it would be done or made by a person if they had capacity in a comparable situation.'.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

I think that I was coming to the end of my remarks and that I had begun to talk about amendment No. 8.

Basically, one must consider the alternatives. First, it may not be necessary to intervene at all in a less restrictive way. If one needs to intervene, there may be an option that is less restrictive of the person's freedom of action and his rights. The amendment says that we should not consider the person's rights when deciding what is the least restrictive action, but only his freedom of action.

As I said this morning, one of the key aims of the Bill is to empower those who lack capacity and protect their rights. Just because someone lacks the capacity to carry out certain actions or to make certain decisions, it does not mean that he forfeits his rights. The rights of the person lacking capacity must be considered when deciding how to help him in the least restrictive way; indeed, we have had some discussion about that.

I will give an example. A young man with learning disabilities or learning difficulties has problems controlling the temperature of the water in his shower. He is unable to understand that moving the dial changes the water temperature. His mother does not want to interfere with his privacy by helping him in the shower, so she installs a new one with buttons that give out water at a set temperature. In a sense, that shows the interplay of rights, the less restrictive manner and the freedom of action, as I think is indicated in the amendment.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

What is troubling me is the view, which might be rather Olympian, that rights are inalienable anyway—if they are given under law, there is no need to talk about them—whereas freedoms and their restraint are a real issue. We will return to that again in relation to the Bournewood case. There was a certain uneasiness about the joining together of rights and freedoms, which is perhaps the motive for tabling the amendment.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

The hon. Gentleman is right that we will return to that issue. There is a fine balance in the Bill between the rights. He knows that people who care for those who lack capacity often have to do acts in connection with care that can involve restraint and invading freedom of action. I understand that his amendment cuts to the heart of the issue.

Hon. Members will see that I am not talking about a certain prescribed set of rights, such as those set out in the European convention on human rights, but about rights in the most general sense—the entitlement that every human being has and without which they cannot live a fully autonomous life. It is right that those who lack capacity should have those rights as well. That is why I gave the example of the mother who wants to ensure that a son who does not understand the dial in the shower does not burn himself, but who equally wants to ensure a balance between his privacy rights and other things. That is why we come back to the least restrictive manner and the terms in which the clause is couched. I want the rights of those who lack capacity to be respected as much of those of anyone else. I hope that I have covered all the issues that have been raised.

There is one final point to make. The hon. Member for Daventry (Mr. Boswell) asked whether I could speak a little about the principles set out in clause 1 and how they relate to the rest of the Bill. I think that it is worth examining the reason why the principles are set out in the clause. Hon. Members may recall that the draft of the Bill, which was considered by the Joint Committee, did not have principles set out up front. The Joint Committee thought that a statement of the Bill's principles would be particularly useful, and it said in its report:

''We believe that such a statement inserted as an initial point of reference could give valuable guidance to the Courts, as well as helping non-lawyers to weigh up difficult decisions. Evidence given to us indicates this would be welcome to a wide range of those who have to deal with the problems of substitute decision-making in practice. We also believe that such a statement would be valuable in helping to frame the Codes of Practice based on the Bill.''

For that reason, we agreed with the recommendation and set out the principle.

The hon. Gentleman asked me to explain how the principles, particularly the one dealing with the Court of Protection, interact with the rest of the Bill. The principles sit at the heart of the new provisions in the Bill. For example, they make it clear that the starting point is that the person has capacity, and underlining that up front in clause 1(2) means that people will return to it.

Sitting suspended for a Division in the House.

On resuming—

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

I have been on my feet for an hour and a half discussing clause 1, and I hope that I have dealt with all the issues raised. For all the reasons that I have outlined this morning and this afternoon, I ask the hon. Member for Sutton and Cheam (Mr. Burstow) to withdraw his amendment.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton and Cheam, Liberal Democrat)

I should like to respond briefly to a debate that has seen the useful airing of quite a wide range of issues around principles and the details of amendments. I have learned a few new things, including about the insomnia of the hon. Member for Daventry and his being a serial amender, which I understand is not something that is cured when people enter Government these days. Sometimes amendments are still tabled at that stage. That is the end of the jokes, which were not very good. I shall now deal with the specific details of the amendments.

What struck me most about what the Minister said was the importance of decision making being centred on the person about whom decisions are made, and of that person being at the heart of the decision-making process. Proxy decision makers should not substitute their views, feelings, interests and desires for those of the person on behalf of whom they are making the decision. In so far as the principles in the Bill already

ensure that that happens, they are a good start, and I hope that we can persuade the Government to reflect further on the matter at later stages. The hon. Member for Knowsley, North and Sefton, East (Mr. Howarth) made some excellent points from his own experience about how the principles contained in the Bill could make a significant difference.

I want to deal with my three amendments. The Minister says that amendment No. 86 is not needed because clause 1(2) and (3) and clause 2(1) cover it, and because the code of practice will give clear guidance. If that is to be the Government's position throughout the passage of the Bill in both Houses, the code of practice, from which he read an extract, has to be top notch in terms of delivering clear guidance. There are still issues about chapter 2 of the guidance, and the General Medical Council has made comments in respect of setting out how the principles work through. I am still not confident that the code is enough. There might still be an argument to say that the amendment or something like it should be included in the Bill.

The Minister said that amendment No. 90 is unnecessary. The most significant thing that he said in this debate—I hope that it will be taken into account when it comes to constructing what we as a Parliament mean in enacting this proposed legislation—was that ''best interest'' includes discrimination. He said that it was not in a person's best interests to be discriminated against. I hope that that important point will be taken clearly into account when courts make judgments about these things, as they inevitably will.

After our first sitting, members of the I Decide coalition rightly pointed out that the Disability Discrimination Act 1995 does not cover private acts, such as those of parents, informal carers and others. The DDA also excludes the decision-making processes of public bodies. A lot of things have an impact on the rights and life of a person who lacks capacity where the DDA's writ does not run. For that reason, I press the Government to consider further after the Committee stage whether there are ways to address my concern, which is shared by others, that we should ensure that a person who lacks capacity is treated no less favourably than one who has it, and that that principle should appear at the beginning of the Bill.

The Joint Committee argued cogently for a drawing together of the principles so that they were clearly stated at the beginning of the Bill for the benefit not only of professionals, but of lay people. It seemed to me that it would help to benefit lay people if we were to include right up front the statement that equal treatment is a principle that people must apply when they exercise proxy decision making on behalf of others. However, having listened to our very useful and fruitful exchanges today, and in keeping with the spirit in which the Committee is proceeding, I will not press the amendment. Instead, I will reflect upon what has been said with a view perhaps to returning to these matters at a later stage.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

I do not need to add a great deal to that or to the Minister's comprehensive reply. The ministerial reply was a serious effort. That has not always been the case in the past, but I do not seek to

reopen that debate. He responded to the various points that have been raised on both sides of the Committee and to those raised by the people who have written to us about a range of issues.

It is right to say two things. First, the interests of the person are central to this process. Secondly, proxy decision making is never as good as personal decision making, but it needs to be made as good as it can be, and it should reflect the wishes of the people themselves instead of involving somebody arriving from Mount Olympus to tell them what is good for them. Generally, we are moving in that direction. The principles have been set out, and the Minister helpfully explained not only the reasons for their genesis, but their relation to the Bill. All of that should help our discussions.

At this stage, I do not wish to be insistent about any specific part of the eight points I raised. The Minister gave a full answer to all of them. The deliberations of this kind of Committee should be conducted in a spirit whereby when we raise issues, Ministers fully respond to them, after which we all reflect on whether measures exactly meet what we want or whether we could look at things another way or revisit them later or in another place.

We have made a good start in teasing out the Bill's import and the ways in which the principles and the interests of the individual are central. I hope that we can go on from that to examine, in days to come, the detailed issues as they arise.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton and Cheam, Liberal Democrat)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton and Cheam, Liberal Democrat)

I beg to move amendment No. 87, in

clause 1, page 1, line 9, at end insert

'including provision of appropriate communication support'.

Mr Alan Hurst (Braintree, Labour)

With this it will be convenient to discuss the following amendments: No. 89, in

clause 3, page 2, line 20, at end insert

'when it has been presented to him in appropriate format'.

No. 134, in

clause 3, page 2, line 20, at end insert

'presented in an appropriate method to his impairment'.

No. 12, in

clause 3, page 2, line 24, leave out paragraph (d).

No. 88, in

clause 3, page 2, line 32, at end add—

'(4) A person is not to be treated as unable to make a decision by reason only of a lack or deficiency in a faculty of communication if that lack of deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise)'.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton and Cheam, Liberal Democrat)

I shall speak briefly to this group of amendments. They are all about how we ensure that a person who lacks capacity is provided with every opportunity to communicate their views, wishes, needs and feelings. That might be done through skilled professionals providing assistance or through artificial means.

One of the times when I thought that these amendments were appropriate was when I reflected on the Second Reading speech of the hon. Member for Crosby (Mrs. Curtis-Thomas). She talked very persuasively, powerfully and compellingly about her experience of the communication difficulties that arose from her mother's stroke, and about how she personally had to deal with the situation and found a way to communicate. She expressed her concern that someone with a formal professional responsibility for a person's care might not go to such lengths.

Whether it is right to set the standard at the level at which the hon. Member for Crosby set it in her personal circumstances is what these amendments are about. They are about saying that, even where someone has expressed a view through an advance decision, if they can still communicate, every endeavour should be made to enable them to express their view at the point when the decision is being made.

We are back to the issue that we discussed in considering the first group of amendments—decisions being about the level of capacity at the moment when they are taken. As we heard earlier, someone who has had a stroke may well have full capacity but not the ability to communicate. By tabling the amendments, we are trying to put some specific requirements into the Bill. For example, amendment No. 88 states:

''A person is not to be treated as unable to make a decision by reason only of a lack or deficiency in a faculty of communication if that lack of deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise)''.

I am thinking also of the case of a person with dementia from an ethnic minority community. Such a person may well have come to this country with another first language and learned English later during their life. As a result of the dementia progressing, they may revert back to their first language. It often happens, and it now presents difficulties in care homes across the country. Increasingly, it will become a challenge for care providers to meet that need. Amendment No. 8 is a way in which we can ensure that the needs of people with dementia are met as of right.

I want to use this group of amendments to draw attention to the section in the explanatory notes that deals with the effects of the Bill on public expenditure, particularly in respect of how the Government have come to their judgment in the case of the Department of Health. Clearly, as the hon. Member for Daventry said in discussion on the earlier group of amendments, huge implications for training are already flowing from the Bill. Such implications would certainly flow from the amendments under discussion, if they were successful. There are also huge implications for developing specialist staff to provide assistance in specific circumstances.

Page 38 of the explanatory notes, in the table under paragraph 188, sets out a series of numbers for additional staff—specialists in health, social care and other area—who are expected to be necessary to make the Bill a practical working reality on a day-to-day basis. Is it envisaged that any of those staff will address specifically the issues of communication, over and above receiving the general training that all staff

should receive on that subject? Also, could the Minister say a bit more about the training aspects of the Bill that refer to communication?

We heard earlier—it is right to state it again now—that communication needs time, training and tolerance or patience. Those things are absolutely key to providing the space in which a person's true wishes can be determined and then realised. The amendments are part of that effort. I hope that the Government can respond positively to them.

Mrs Angela Browning (Tiverton and Honiton, Conservative)

I welcome you to the Chair, Mr. Hurst, although I do so rather late in the day.

I support the amendments, and as the Committee will see, I have myself tabled one that is not dissimilar to one tabled by the hon. Member for Sutton and Cheam about a person's ability to understand information, based on their own communication difficulty at any given time. I want to bring to the Committee's attention a notice received from the Disability Rights Commission on the subject, saying

''we are very concerned that the resources to meet needs are not currently available to service providers (eg the NHS and local authorities). Ability to communicate capacity may not always be possible due to a lack of resources to meet communication needs. The DRC believes that the commitment to meet all communication needs must be properly resourced and monitored if it is to have any real impact on disabled people's lives.''

There has been amicable progress in Committee, and I do not want to upset the Committee's temperament, but I must be honest with the Minister. First, it concerns me that the Government have assessed that there is already sufficient advocacy in the system and think that they do not have to introduce additional resources to cover new advocacy for the purposes of the Bill. Furthermore, cases will have to be expensive for the individual communication facilities to be made available.

In some cases, such as that mentioned by the hon. Member for Crosby, there will be a close family member with whom the person feels comfortable and is able to communicate so as to express a view that can be clearly interpreted. However, what worries me about the Bill is that there seems to be an emphasis on the individual being able to communicate their decision and being assisted to do so, but there is not the same emphasis on how information and choices are presented to them in the first place.

People in the autistic spectrum, who have a communication disorder, would need somebody who worked regularly with them to interpret for them what was explained and what choices were offered. If the autistic person had nobody, and somebody was appointed under the legislation, they would certainly need to know that person for quite a while. There would need to be a ''getting to know you'' period before any external person could feel that they were interpreting the autistic person's needs accurately.

The tendency, particularly among people at the more able end of the autistic spectrum, is to answer a direct question with an answer, to be seen to be integrating with everybody else. However, until one

starts to unpeel the onion skin, one does not realise that such people are just trying to be helpful and give an answer to a question. We come across that in court cases, where autistic people make the most appalling witnesses because they try to be helpful, regardless of the consequences of giving a helpful answer.

I worry about groups of people within the communication disorder spectrum, the amount of time that would be taken and the appropriateness of a third party to assisting such people if no one was available in the normal course of their care package. That would have resource implications, and I ask the Minister to consider carefully what it means. Under the Bill, some people who lack capacity would receive what we all intend them to receive, but others would be disadvantaged unless the need for resources is recognised.

Ms Claire Curtis-Thomas (Crosby, Labour)

I support the amendments. I, too, am concerned about the lack of appropriate communication facilities for people who present with different difficulties. People who work with people with learning difficulties or specific disorders that affect communication know that insufficient resources are available for them adequately to communicate their needs on a day-to-day basis. My experience in my constituency is that we have had to fight hard to address the needs of people with cerebral palsy, who sometimes have intellectual as well as physical difficulties and need specialist equipment that is horrendously expensive.

My experience of visiting people in hospital who lack communication is that there is no specific facility for them. In the assessment of an individual's capacity, I would like to see an adequate description of their ability to communicate what they desire and of how we can know that they are satisfied that they have the means to express themselves. That should be a deliberate exercise, within which we should establish whether a person can communicate; if so, how; whether we have carried out the analysis; and whether the person has the means to speak.

I do not think that I have ever met an expert in locked-in syndrome, but I am convinced that a number of people in care homes with the syndrome would benefit immensely from an expert who has at their disposal information that normal carers could never aspire to have because the syndrome is so rare. However, the syndrome happens, and there is expertise available that we could draw on.

I have concerns about the amount of funding and posts identified to cope with people with a range of communication difficulties. If we consider the spectrum of people with such difficulties, we see that it is a much bigger problem than is currently acknowledged in the explanatory notes.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

This is a fascinating set of amendments for two reasons. First, I wish to return to an argument that has been well deployed and on which there a dualism of interests in the Committee. I refer to the provision in the real world for people with decision-making and communication difficulties—the subject of the amendments—to facilitate their ability to

communicate their decisions. Secondly, there is the whole legal superstructure or underpinning to the judgment whether people have the capacity to make decisions. That is slightly paralleled by the amendments and, in a sense, it has been useful that different minds have approached the matter from different angles.

The hon. Member for Sutton and Cheam and my hon. Friend the Member for Tiverton and Honiton (Mrs. Browning) have both tabled amendments that want the provision of better communication, and I have no objection to that. My approach was different; it was to challenge the logic of the Bill as drafted, but to say, ''Do not discount somebody because you cannot communicate with them and take that out as a ground.''

Mr Tom Clarke (Coatbridge and Chryston, Labour)

Will the hon. Gentleman go a step further than saying that he had no difficulty with the provision, and be a little more encouraging, for example, in respect of the brilliant point made by the hon. Member for Tiverton and Honiton? In other words, there is much in the Bill that is very good, but it cannot and will not be effective unless we advance the case for advocacy. You will probably rule me out of order, Mr. Hurst, but I must say that we cannot therefore avoid the issue of resources, and we must not ignore the importance of advocacy.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

The hon. Gentleman is developing an extremely seductive position. I shall preserve the delicacy of the Front Bench by not jumping in feet first, except perhaps to give him the broad mood music. I know exactly what he is talking about. He will know—he may even have heard me use the phrase with regard to our joint interests on disability interests, which we share with others in the Committee on disability issues—that I have frequently said that we must use our elbows in this game. We have to find ways, be it with legal levers or arguments about advocacy. Above all, we are articulate people in Committee; we are hired to be so. However, people who lack mental capacity or have an issue about their mental capacity are by definition those who need help. He is making a case, but it may be one that we had better save to a later stage in our proceedings.

Essentially, the Committee is united in saying that people have a difficulty. A lot of it centres on people who have problems in communicating, as the hon. Member for Crosby movingly described in her speech on Second Reading. It is no good just turning one's back on them and saying that there is not time to discuss such matters. The Bill gives an explicit commitment to proxy decision makers and says that they must spend time with the person and, as it were, get inside that person's mind if that is possible.

Mrs Joan Humble (Blackpool North and Fleetwood, Labour)

I do not think that anyone disagrees with the tenor of the debate, but clearly we must do everything we can to identify the wishes and capacity of the individual. There will be resource implications, but when I visit special schools, for example, I now see enormous efforts that have been made to communicate

with children who are now surviving because of modern medical advances. Those children, who often have profound communication problems, would not have survived in the past, yet techniques have been developed over the years. Many of those young people are now growing into adults and still have their communication problems, but solutions have been found. As my hon. Friend the Member for Crosby said, we should be building on those examples of good practice and ensuring that resources are available to fulfil this basic principle in the Bill.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

Once again, I find myself much in sympathy with the comments made by the hon. Member for Crosby. There are examples of good practice and they point even more poignantly to the cases where good practice does not apply, where the resources are not available and where people are left without the means to communicate and, perhaps, without the support of advocates, parents, carers or others who will stand up for them and say, ''You need this'' or, ''We will get this for you.''

I am sure that I am not alone in this—indeed, I know that I am not—but today I happen to have been in correspondence with a constituent who has a son with Asperger's syndrome complex. The son is very bright. He, his mother and others, including myself, although to a more modest extent, have had to work very hard to get him the right package of support at school. However, we are beginning to get there.

The hon. Lady is right to say that more people are surviving. They have more complex problems and we are getting to know more about them. Many of those problems centre on communication. I do not think that there is a hair's breadth of difference between the people I have heard speaking in this Committee on the required approach, which is that they need support. As the right hon. Member for Coatbridge and Chryston (Mr. Clarke) said, they need advocacy if it is appropriate. We will discuss how much and when later on, but that is what needs to be done. I will concede that to him before he thinks that I am being evasive.

I owe it to the Committee to spend a little time pursuing the logic of the way in which the Bill is drafted, if only to make the Minister wriggle. I have examined it again; I find that my tinkering instincts usually come in useful. When someone looks at it for the first time and thinks that they might change something or that they will re-examine it, they find that there is an underlying logical shift in the proceedings which is quite interesting.

If one reads clauses 2 and 3 together, one finds that they are about people who lack capacity and about the inability to make decisions. The prior condition set out in clause 2 (1) is that there should be

''an impairment of, or a disturbance in the functioning of, the mind or brain.''

That will arise when we debate another group of amendments, relating to clause 2, so I will not discuss it now, except to say that we understand, by and large,

what it is. What this means, if I may put it in lay language, is that at the material time the person is, to quote from the provision,

''unable to make a decision for himself in relation to the matter''.

That is defined as lacking capacity.

In clause 3, the inability to make decisions is further defined for the purposes of clause 2. There are three tests, and if Committee members look through the explanatory notes they will see the way in which the Government are having to finesse this issue.

The first three tests, as the explanatory notes cheerfully say, will

''cover the vast majority of cases.''

This is exactly about making decisions or the inability to do so.

The first test is that a person must comprehend the information relevant to the decision. The second test is about retaining the information for long enough to make the decision. On clause 3 (2), the explanatory notes make the point that it is necessary only to understand the information

''for long enough to make the decision''.

The person does not have to hold it indefinitely in their mind.

The third test is that the person should be able to use and weigh the information as part of the process of making the decision. That is exactly what we, and what Ministers, do when making decisions as fully capable adults.

A fourth category then applies, which is specifically but not exclusively tied in to locked-in syndrome. It is described in the explanatory notes as

''intended to be a residual category'',

but it is nothing at all to do with making the decision. It is not that one is incapable of making the decision—one may or may not be so—but that one cannot communicate it.

I can imagine a situation, at least logically—this is where I think the Government are in logical discomfort—in which a person could be well able to make a decision and the only problem would be how one knows what decision they are taking. I can then imagine a situation in which an issue could be reopened by somebody emerging from a locked-in state—which might have arisen through some psychological trauma—and saying, ''I knew perfectly what I had to do. This is what I would have done, but now you have done something completely contrary to my wishes.'' I am not even sure that they would not have a case against the apparently innocent person who was the proxy decision maker because their wishes had not been complied with. It is difficult to create a separate category, particularly if the issue is not whether, theoretically, there could be the equipment, but whether in practice the equipment is available at the time when the decision is being taken and the person is therefore able to communicate that decision. There is a logical difference.

If I could wish myself into the Minister's shoes for a moment and imagine myself trying to sort this out, I would fall back on clause 2(3), which states that

''whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.''

I do not think there is an amendment that allows us to discuss that. However, I would say, ''Well, I'm sorry, I can't get any response from person A''—or person X, or whoever—''and therefore I don't know whether they can make a decision, so I will have to work on the assumption that they cannot.'' That would be a more honest approach than dragging in this bit about not being able to communicate.

In the real world, we might be making fine distinctions without a difference. We all agree that we want people to be able to communicate where they can do so and where they have underlying capacity. The issue is simply whether we ought to rule that they do not have capacity because the one thing they lack is not the capacity to make a decision but the capacity to communicate that decision. In the end, we all want people to be able to make the decisions if they can do so, and the people who have to interpret those decisions to be able to understand them, but there is a logical difficulty here and the Minister ought to respond to it, as well as to the substantive issues of care and communication that have been raised.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

The hon. Members for Sutton and Cheam, for Daventry and for Tiverton and Honiton have all tabled amendments that are, effectively, about the importance of communication and communication support. The first concern seems to be to make sure that people are not wrongly regarded as lacking capacity because they cannot communicate. On Second Reading, my hon. Friend the Member for Crosby movingly explained the wrong assessment that was made of her mother following a stroke.

The second concern reflects the widespread problem of people being wrongly regarded as lacking capacity because the effort is not made to explain the decision to them in a simple or appropriate way. I agree with hon. Members' intentions with regard to those concerns. No one should be regarded as lacking capacity because they have not received adequate communication support, nor should we say that someone is incapable of making a decision because no one took the time to explain the decision to them in a way that they could understand.

The hon. Member for Daventry proposes the most radical solution to this problem. He would delete clause 3(1)(d) and, in so doing, remove the possibility for someone who cannot communicate to lack capacity unless they otherwise cannot ''understand'', ''retain'' or ''use or weigh'' the information relevant to the decision. Although that initially sounds like a neat solution, it would remove the protection of the Bill from a category of people with the rare condition of locked-in syndrome. Clause 3(1)(d) was specifically drafted to include this group of people who cannot communicate in any way. Everyone else who can pass

the tests in clause 3(1)(a) to (d) should, with support, be able to communicate their decision. That is why clause 3(1)(d) says that a person can communicate

''by talking, using sign language or any other means''.

The hon. Member for Sutton and Cheam has tabled an amendment to add mention of more specific communication aids to the list in clause 3(1)(d). The more specific the forms of communication support listed in the Bill, the greater the risk that other forms of support are given less status. For example, amendment No. 88 mentions mechanical aid, but not electronic aids. In the modern age, one might say that electronic aids were equally or more important; there would at least be debate about their importance. There is a risk, demonstrated in the amendment, that in seeking to be prescriptive in legislation, one ends up causing problems or leaving out technological advances in the future.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton and Cheam, Liberal Democrat)

I understand that point; it is well argued by Ministers dealing with amendments to a whole range of Bills. However, I turn the Minister's attention to amendment No. 87 to clause 1, which talks more generally of

''including provision of appropriate communication support''.

That does not get us into the problem of lists to which the Minister alluded.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

Right at the beginning of the Bill, in the principles, we made it clear that ''all practicable steps'' must be taken to help people to make their own decisions.

The hon. Gentleman also proposed strengthening the importance of communication support in the clause, but again there are difficulties. He will see that the code mentions the context in which such support is provided. It says that it is important not to overburden a person with information, to give information in a balanced way, to speak at the right volume and with appropriate vocabulary for that person, to enlist the help of others who know or are trusted by the person, and to consider using an advocate.

We must avoid the risk that, by specifically referring to communication support in the principles, we imply that other forms of support are not so important. Communication support in the round is very broad. We could end up downplaying the importance of steps such as explaining a decision to someone at the best time of day, in the best environment, and with the people with whom they are most comfortable.

We believe that it is better to keep references in the Bill to communications sufficiently broad to capture the necessary diversity of provision, and prefer to provide the detail in the code of practice. The code emphasises the importance of helping people to communicate. In particular, I refer hon. Members to pages 18 and 19 of the draft code. The list there may well grow.

In addition to the provisions of the Bill and the code, the hon. Members for Sutton and Cheam and for Tiverton and Honiton have proposed amendments to clause 3 to stress that information must be presented in an appropriate way to people who may lack capacity. As I have explained, the Bill and code together already

emphasise the importance of communicating to people clearly, simply and in a way that meets the needs of the individual, but no specific mention of that is made in clause 3(1)(a).

We have tried to set an example on the subject, producing a number of publications about our own policies in easy-to-read documents, tapes and CD-ROMs. Hon. Members will have seen the accessible summary of the Bill that we have produced, and may be aware that we have already run several workshops about the Bill for people with learning disabilities. We recognise the benefits of that approach and encourage local providers to follow suit.

We must make sure that people are not unable to consent to a blood test just because they do not understand the words ''blood test'', even though they understand what it means if someone demonstrates the procedure. We should not say that someone is not capable of going shopping by themselves simply because they cannot find the shop on the map, if they can find their way when someone clearly explains the route.

I come now to amendments Nos. 89 and 134. We will explore our options further with parliamentary counsel. We want to make the Bill as broad as possible, and I have said why I think that is important. However, I understand the issues raised by Members, and I will take them away for consideration.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton and Cheam, Liberal Democrat)

The Minister referred to clause 1(3), which mentions taking

''all practicable steps to help''

the person to make a decision. I would like to clarify that. Does that mean that a social services department or an NHS body undertaking an assessment that entails a decision-making process and the obtaining of consent would have to put in place all reasonable measures to ensure that the person can communicate their wishes and their decision? Would the local authority or the NHS have the right to have regard to the resources available to them to provide the necessary wherewithal to facilitate communication? Are resources an issue in providing the wherewithal to facilitate communication?

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

The Bill seeks to enshrine best practice—things that are already going on in our communities—in legislation. The hon. Gentleman knows from taking part in health debates, and I know from my previous job in the Department of Health, that we were open to the fact that there was a lack of linguists and speech therapists in the Department of Health in 1997. That is why between September 1999 and March 2004 there has been an increase in the number of therapists, which has gone up by 9,000. We have met the commitment that we made in the NHS plan and we want to continue to go further and to grow that important area. In that context, decisions have to be made in local primary care trusts and local social service teams across the country. It is also important that, when talking about people who lack capacity, we stress that communication is about meeting their needs

where they are at, and that that is about the manner of presenting the information and the environment in which capacity is established. That is a fine balance.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

The Minister is picking delicately through this issue. I read the runes as saying that there is no absolute commitment to put unlimited resources into communication, although there is a wish to put in more than there are now. I think that that is right. I leave the Committee to draw its own conclusion.

Neither the Minister, nor I—indeed, no Committee member—would want a silly box-ticking approach. However, as a matter of best practice for health care professionals, it would be sensible to develop some kind of audit trail so that, in seeking a solution to such problems, they could establish after the event, or on a continuous basis, that the needs of persons with communication difficulties had been adequately addressed.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

We have begun workshops and training and they are ramping up and increasing, as my hon. Friend the Member for Blackpool, North and Fleetwood (Mrs. Humble) said. Yes, we should increase capacity and raise standards in training and awareness, but it is also important to put on record the fact that in implementing the Bill, which is shared between the Department for Constitutional Affairs and the Department of Health, we have a commitment between Departments to total additional costs of £34 million in the first year, and £27 million per annum after that. We are committed to the implementation, training and levelling up of good practice, including in social services and the Department of Health. On that basis, I am willing to consider amendments No. 89 and 134 in further detail with parliamentary counsel and I will table an amendment on Report.

Ms Claire Curtis-Thomas (Crosby, Labour)

When my hon. Friend takes this matter further with his colleagues in the Department for Constitutional Affairs, perhaps he might consider a communications audit. Assessing communication can be a subjective activity, but it does not need to be that way.

There are some people for whom this will not be an issue, but other categories of individual present with difficulty communicating or with the total absence of an ability to communicate, or perhaps they use complex methods of communicating. It would be helpful to have a recorded description of the ability of the individual to communicate and, moreover, the means to facilitate communication expressed either by an individual, or their carer on their behalf describing how they are best able to communicate.

I can give a practical example of that. Recently I went to a hospital to visit a constituent in his 90s.

Mr Alan Hurst (Braintree, Labour)

Order. I am afraid that the intervention is too long.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

In considering this in greater detail, we would have to give the right balance to the code of practice and the legislation and see where those duties lie in relation to the professionals who have to provide them.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton and Cheam, Liberal Democrat)

This has been a useful, short debate about issues around communication. I am grateful to the Minister for his response and his willingness to consider further two of the amendments, which is helpful.

I asked the Minister about taking into account an organisation's resources because I had in mind something that he might think about. The Gloucestershire judgment, made some years ago, affected a social services department. It said that the department could take into account its resources when deciding about the care packages that it was able to provide. That has two bearings on the present issue. First, a care package may include a package of support to facilitate a person's being able to communicate their views, wishes, needs and decisions. Secondly, even before such a support package is put in place, there are issues about the authority having to use resources to facilitate the assessment and about its fully involving the individual.

I wanted to be as clear as possible about whether a local authority can say ''Ah, no, we have a budget shortfall this year and we are going to cut it out of the communications budget.''

Mrs Angela Browning (Tiverton and Honiton, Conservative)

The hon. Gentleman will recall that that issue arose in the Joint Committee, particularly in respect of social services, because it is not always in Mr. P's best interest if the person setting out the options knows that they are the employee of an authority for which specific limitations have already been identified because of budgetary or policy constraints. That is why it is important for independent advocacy to consider, at that point, what Mr. P really needs, which may be outside their scope, but may be the right thing to do.

I share the hon. Gentleman's concern and he is right to flag it up at this early stage, because I think that we will return to it later. The issue of what is available may be the reality of life, but it may not always be in the best interest of Mr. P.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton and Cheam, Liberal Democrat)

The hon. Lady is right. We will probably return to that matter, which is why I am flagging it up now. The greater the clarity, the better.

The courts have made a decision about issues around resources for care packages and it is important at this stage, if we are defining fundamental rights, to see whether a fundamental right can also be suborned by a lack of resources to deliver it. I want the Minister to reflect on that and return to it at a later stage, perhaps by means of a further amendment. I look forward to the Minister returning to the issue of communications and hope that the parliamentary counsel can get the format right in respect of the amendments.

Mrs Angela Browning (Tiverton and Honiton, Conservative)

I add my thanks to the Minister for saying that he will look again at the matter. I refer him to clause 3(1)(a) where there is no qualification in respect of understanding information, whereas under subsection (1)(d), in respect of Mr. P communicating his decision, it is qualified. It seems unwieldy to have at one end of the list the necessity to have such words in the Bill, while at the beginning of the list when the communication is initially made with Mr. P, the same qualification is not contained in the clause.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton and Cheam, Liberal Democrat)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.

Question agreed to.

Clause 1 ordered to stand part of the Bill.