Clause 4 - Best interests
Mental Capacity Bill
10:45 am
Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)
I assure the Committee that on this amendment I do not intend to open a debate as long as the previous one. This is a classic probing amendment, because it would delete subsection (4), whereas, as the Minister will remember from earlier debates, that is the last thing I want to do. Self-evidently, it is good practice that people who care should, as far as is reasonably practical, permit and encourage the participation of the person involved. I interpret the word ''participation'' in a lay sense, and I need the Minister's assistance in probing what it means in a legal sense. There is a difficult interface with the judgment to be made about whether a person lacks capacity.
We have already discussed the idea that assessing capacity is a functional test, and that a person lacking capacity in one respect may have it in another. We are now in a grey area, in which a person might almost have capacity, and subsection (4) would invite them to
participate in decisions. However, the status of that participation is not clear. The Minister is nodding; I am glad that I tabled the amendment so that we could probe the issue. The Minister is inviting the person to participate, but not to be the decision maker, because by definition, they lack capacity. However, if they are able to participate, it is worth asking whether they have the capacity to make the decision and whether they should make it, with whatever assistance is appropriate.
We have discussed that already. For example, we had a discussion about problems in clause 3(1)(d), which is about the inability to communicate decisions. Under clause 4, people who care are asked to get the person cared for to join in making a decision. They may have just a communication problem. However, at some point a decision has to be made about whether the person who cares should be the decider, or whether the person being cared for should make the decision, with assistance. Who would take the lead? We need an explanation.
I may be paving the way for the hon. Member for Chesterfield (Paul Holmes), who will want to speak to his amendment. In no sense am I signalling to the Committee. The Minister has been kind enough to acknowledge that I tabled an amendment about the person's feelings even when they lack capacity. We are not trying to shut people out or make an advance decision that they will never have capacity again. We are saying that we need to consider what constitutes participation in a decision. Under the clause, the person would not, by definition, take that decision. We need to consider what would be a reasonable effort by the decision maker to involve the person. We need to see what was in the Minister's and the draftsmen's minds in making the provision. We do not want to subvert it, but to ask for an explanation of it.