Clause 2 - People who lack capacity
Mental Capacity Bill
3:30 pm
Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)
I beg to move amendment No. 10, in
clause 2, page 2, line 5, leave out 'an'.
Mr Alan Hurst (Braintree, Labour)
With this it will be convenient to discuss amendment No. 11, in
clause 2, page 2, line 5, leave out 'a'.
Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)
I hope that I qualify for a modest prize for economy of drafting. Two amendments that suggest the removal of three letters must be some kind of record, even for me. They have a point and I shall explain it briefly to the Committee. We have implicitly discussed the clause in substance. We know broadly—we do not differ very much—what a person is who lacks capacity. There may be a theoretical argument to test whether such people can communicate the capacity that they have, but that is subordinate.
One of the issues under the principles in clause 1 and which is meant to be implicit in the Bill is the definition of capacity by function. That is moving away from the examples to which the Minister eloquently referred this morning, which I do not feel comfortable reproducing because the language is so offensive to many people. People are rammed into particular categories, deemed to be idiots or another extremely offensive term and then ruled out.
My purpose in tabling the amendments was to ask the Minister to justify any straying he may have done towards what might be called ''old think''. The explanatory notes to the clause refer to diagnostic tests, which are about
''an impairment of or disturbance in the functioning of the . . . brain.''
When I read them, I thought that the hon. Gentleman might be straying back towards what might loosely be called the medical model. He will understand the
distinction in the disability approach from the social model, for example, when a doctor said that a person was suffering from X syndrome, therefore by definition that person lacked capacity, or there was disturbance in the function of the person's mind or brain. More typically, such remarks would not be addressed to the patient or the individual, but to another person such as a member of the family, along the lines of, ''He can't make a decision, you know; he has X or Y''. That may be the case, especially when there is a clear diagnosis.
However, it is more congruent with the basic approach of the Bill to functionality to say that it should be about the impairment or disturbance in the functioning of the mind or brain—in other words, the condition should not have to be particularly definable, but merely that functionally there was an impairment or a disturbance without giving a precise description. The Minister will have noted that, even as I described the purpose of the amendments, I strayed back into using the indefinite article. Does the mind or brain work, or does it not? If it were impaired or there was a disturbance, that should be sufficient without having to put a label on it.
The logic of those who drafted the Bill is that there should be a label or condition behind the impairment or disturbance. My amendment would make no more than a nice, delicate distinction. Now that I have challenged the Minister's wording, I invite him to defend it.
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
The hon. Member for Daventry has tabled two amendments to clause 2. Their effect would be to imply that any temporary impairment or disturbance in the functioning of the mind or brain would not mean that a person lacked capacity. By removing the references to ''an'' and ''a'', the amendments imply that impairment or disturbance of the mind is absolute and fixed, whereas the current references to ''an impairment'' or ''a disturbance'' allow better for temporary lack of and fluctuating capacity; we had a lengthy discussion about fluctuating capacity and specific decision making this morning. For those reasons, these amendments are undesirable.
Over the past four or five years that I have been an MP—is it that long?—I have been engaged with a young autistic boy in my constituency. I first met him when he was about 12 or 13 and he is now in his late teens. I know from my engagement with him that he has been on a learning curve. There are decisions that he would have struggled with at the beginning that he can now make. The wording seeks to capture both that context and the fluctuating decision making I spoke about earlier. For those reasons, I hope the hon. Gentleman feels able to withdraw his amendment.
Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)
The Minister is persuasive. We are close on this matter, and there has been no harm in discussing it. I understand where he is coming from, and I think he knows what I am worried about. We will
give him the benefit of the doubt on this occasion. Therefore, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)
I beg to move amendment No. 9, in
clause 2, page 2, line 15, at end insert
'or by D if he shall not have attained the age of 16 years, unless he is under the supervision of a suitable adult'.
This is a completely different kettle of fish, and it could be argued that it does not have too much direct relevance to many things we are considering today. For those who have studied this clause, the Minister is entirely reasonably providing that there should not be a clash with the Children Act 1989 in relation to persons under 16, save only for where there may be assets or otherwise that may continue on to their adulthood. I am thinking of sad Court of Protection cases, for example.
I have no problem with those provisions. I have tabled this amendment to raise a different issue in relation to what might be called young carers. A young person could be the subject of decisions about mental capacity in one place or another and equally a person who might be called on to care for someone who lacks mental capacity. I do not wish to create a scenario in which the normal recourse would be for young people to be burdened with making life or death decisions in the extreme case, or major decisions relating to assets, which by our law they would not be able to make, possibly even in relation to assets they themselves held on behalf of a person who lacked capacity and was a family member.
What I am saying to the Minister—I think we will all be familiar with this from the real situations in our constituencies—is that there will be cases in which persons do not have full mental capacity, or at least do not have it at a particular time, and a young person may be called on to intervene or help out in their situation. That may even be a very sensible regime, as opposed to an irresponsible one, if it is provided. Nobody is saying there should be no support or supervision. However, there could be cases where this would be either the right or the inevitable thing to do.
The Minister may be aware that the doctrine in clause 5 lay in the common law doctrine of necessity—somebody has to do something because there is a need and the individual has no capacity. It is not fanciful to assume that there may be cases where a young carer has something to do with the situation. I am not clear whether any provision is made in the Bill for such a young carer, although I may have overlooked something.
The amendment is designed to raise the issue and to state that where a young person must make even day-to-day decisions on behalf of a person without capacity, rather than say absolutely that they cannot do so, it might be more sensible to say that they can, but that they must do so under the supervision of a suitable adult—no doubt with any advice that might arise from the public guardian or social services.
This is a real-world issue and it is quite an important one. I would be grateful if the Minister and other members of the Committee shared their wisdom on it.
Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton and Cheam, Liberal Democrat)
I want to use the amendment to pick up a related theme that also runs through other parts of the Bill: the period between 16 and 18 when substantial aspects do not apply to someone who lacks capacity. Clause 9 and clause 24, which is about advance decisions to refuse treatment, make it clear that both in the case of lasting powers of attorney and of advance decisions, P must have reached the age of 18.
That means that those individuals are within the ambit of the Bill from the age of 16, but do not have the full benefit of the protections and opportunities in terms of the proxy decision making it envisages. On the point made by the hon. Member for Daventry, people cannot be designated as donees between the ages of 16 and 18 if they have incapacity. They cannot be given that role either.
Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)
The hon. Gentleman is on to a material point, but I am sure that he will be aware that if a young person with their own capacity were between those ages, they would not be allowed to make a valid will anyway now. There is quite a wide issue of application.
Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton and Cheam, Liberal Democrat)
I take that point; it is an entirely fair one. I am seeking to get from the Government details about the issue of the interface with the existing children's legislation. Clearly, there is an issue that the ambit of the Bill is extended to those people post-16, but does the ambit of the Children Act 1989 still also apply to them? How do the two interface? How is that to be managed? Which courts will deal with them in that respect? Will it be the Court of Protection or other courts that would be more responsible for dealing with family, child protection and other matters? Where do they fit? As a result of this gap, it would be useful if the Minister spelled out the Government's thinking and how the interface will be dealt with.
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
Clause 2 makes it clear that when the Bill refers to a person who lacks capacity, that person will be 16 or over. Children, for these purposes, come under the jurisdiction of the Children Act.
The amendment refers not to P—the person lacking capacity—but to D, a carer, and says that carers must be over 16 if they are to exercise any powers under the Bill, or, if they are under 16, they must be supervised by an adult.
The Bill already says that donees of lasting powers of attorney and deputies must be 18 years or over. We have had some discussion on that and I want to associate myself with the remarks as to the distinction between what someone can and cannot do at 16 or 18. I say to the hon. Member for Sutton and Cheam that there is no contradiction in terms, and I want to explain why.
Of course, the Government do not encourage children to take on onerous caring responsibilities but, as the hon. Member for Daventry said when he talked about real-world examples and issues, we must accept
that a child may well carry out acts in connection with care—for example, for a brother or sister—that are not work as such but friendly actions. I fear that the amendment would create problems in families and make young people unsure about what they could and could not do.
Let us take the example of a 15-year-old boy whose elder brother has learning disabilities. Every morning, he helps his brother to get dressed. Should he continue to do that? Should we interfere with that everyday occurrence in families in all our constituencies? Of course we are not attempting to interfere with that. It is right to remind the Committee that, to emphasise that day-to-day power, we renamed clause 5, so that its title refers to ''Acts in connection with care'', and changed the reference to ''general authority'', about which the Joint Committee had deep concerns. That has got us to where we are.
Children under 16 may be perfectly capable of carrying out some actions, and I would not want to make them feel inhibited from doing so, nor would I wish to remove the protection afforded to them by clause 5. The Bill does not give people a general authority to act. Clause 5 provides statutory protections against liability in certain situations. If the clause did provide a general authority, I would be inclined to agree that children should not be given such an authority. However, many young people help to care for an older friend or family member, and I would not want to discourage that. The key thing to emphasise is that the Bill gives them a defence, not a general authority.
Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton and Cheam, Liberal Democrat)
I have the impression that the Minister is concluding. I want to ensure that, before he does so, he addresses my concern about whether people without capacity, or with fluctuating capacity or whatever, who turn 16 will begin to enjoy the benefits of the Bill. They will not have the full benefits of the Bill until they turn 18. The question, therefore, is whether they retain any protections or benefits under the Children Act, or whether they move out of the protection of that Act and into a period when they do not have the full benefits and protections of the Bill.
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
I am grateful for the way in which the hon. Gentleman put his concerns. In relation to those who are 18, the clauses that he emphasised relate specifically to the acts of the proxy. The rest of the Bill—including acts in connection with care and best interests being central to some decision-making—relates to a 16-year-old. That is the balance, and that is why I said in my opening remarks that there is no contradiction. The Children Act relates specifically to minors, and the determination that we have mentioned is for minors up to the age of 16.
Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton and Cheam, Liberal Democrat)
I think that I need support with communication today, because I am not getting my point across clearly enough. The issue is not about those acting as carers; it is about those lacking capacity who turn 16. Under the Bill, for two years they would not have rights to appoint a power of attorney or in respect of advance refusals. I am not necessarily saying that they should have those rights, but I want to clarify
how that two-year period works in relation to the Children Act. Does anything in that Act continue to apply to them, as they do not benefit fully from the Bill?
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
The hon. Gentleman referred to the Children Act 1989. May I undertake to write to him in more detail on that issue?
Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)
Those exchanges were useful. I am sure that the Minister will want to copy the letter to the other Committee members; a real issue is involved. I would have some diffidence in extending the full monty to persons of that age, let alone having them as appointees for other people, without a broad reconsideration of the age of majority. I do not think that that is the issue. One would feel uncomfortable if such young people got into some lacuna between the protections that they enjoy as children and those that they would enjoy as adults with mental capacity, who may make their own disposition by will or advance decision, for example. We have not discussed the issue, and I will not go on about it now, but there is an argument for people to build their advance decisions into their will making. That would be an example of good practice for the future.
To come back to the specific point, I understand what the Minister says. In practice, there is, rightly, a reluctance to put young people into the invidious position of having to take major strategic decisions on behalf of another person, be they their sibling, parent or whoever else. Equally, there is no bar on their being consulted about something when they know and love the person and may well have an informed view. However, children should not finally be put in the position of having to take the decision for the person who lacks capacity. That is not a problem.
My concern is about what used to be called the general authority, which has now become:
''Acts in connection with care or treatment''.
I do not differ from the Minister on the issue. It is not only often the case, but entirely desirable, that somebody should prepare a simple meal for their sibling, for example, if they happen to be around. That is a kind and loving thing to do and may well bring the family closer together. We live in a litigious world and are anxious to provide protection for such reasonable acts.
The only point on which I would pause is that in civil law a young child is, at some point, below the age of suability, because they are not regarded as having capacity. The Minister will know more than I do about the matter; I need to check the exact age. In light of his remarks, I wonder whether the authority for care or treatment should extend to such a young person, on the grounds that there is no issue about their suability anyway. That may be a consideration. Having said that, there may be circumstances—one reads and generally rejoices about them—in which a very young child does some caring act. Perhaps their mother has been taken ill and lost consciousness; they may ring up the emergency services to say, ''Come and help'', or perhaps they loosen the person's collar and get them
breathing again by whatever improvised means that they can use. Nobody would want to stop that, but he might like to pause on some of the issues.
The matter should certainly not be pressed to a Division, but it has been important to clarify such apparently loose ends. I am grateful for the Minister's explanation, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 ordered to stand part of the Bill.