Clause 2 - People who lack capacity
Mental Capacity Bill
3:30 pm
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.