Clause 1 - The Principles
Mental Capacity Bill
3:15 pm
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.