Mr James Cran (Beverley & Holderness, Conservative)

I remind the Committee that with this we are discussing the following amendments: No. 95, in clause 5, page 3, line 35, at end insert

'and P has sought the involvement of an independent advocate where the matter to be determined is one falling within section 34.'.

No. 96, in clause 5, page 3, line 43, at end add—

'(5) Section 5 does not authorise an act in connection with serious medical treatment or a change in P's accommodation to a hospital or care home unless P receives advice from an independent advocate in accordance with section 34.'.

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

Before we adjourned, I was concluding my remarks on these amendments. It is important that the Government target resources at the most vulnerable people in the most serious situations, which is what we aim to do through the establishment of an independent consultee. I hope that my assurances persuade the hon. Members for Sutton and Cheam (Mr. Burstow) and for Tiverton and Honiton (Mrs. Browning) not to press their amendments.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

I am a little disappointed because I do not know how the scenario that I portrayed of adults moving out when the parental home was in crisis would be represented if they had never previously had a social worker, for example. I should like to think that someone independent would be there to consider what was being proposed for them. However, I shall return to the matter at a later stage in the hope that the Minister will consider it again. I beg to ask leave to withdraw the amendment.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

I beg to move amendment No. 135, in clause 4, page 3, line 27, at end add—

'(9) He must exercise non-discrimination in respect of disability or age.'.

Mr James Cran (Beverley & Holderness, Conservative)

With this it will be convenient to discuss amendment No. 108, in clause 4, page 3, line 27, at end add—

'(9) Where it appears to a relevant authority that—

(a) a person, ''C'', is engaged in caring for another person, ''P'', and

(b) section 5 may apply to acts in connection with the care or treatment provided by C to P, and

(c) C is not a person to whom section 40(4) applies (those individuals who are under a duty to comply with the Code)

that authority shall provide C with the codes of practice referred to in section 40(1)(b) (guidance for persons acting in connection with the care or treatment of another person) and take any other steps as it considers reasonably necessary to assist C in complying with section 5(1) (ensuring that P lacks capacity and reasonably believing that the act is in P's best interests).

(10) For the purpose of subsection (9) ''relevant authority'' means either—

(a) a local authority exercising functions under section 47 of the National Health Service and Community Care Act 1990, or

(b) a Health Authority, Local Health Board, Special Health Authority, Primary Care Trust or National Health Service trust which is responsible for providing or arranging services under the National Health Act 1997.'.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

We touched briefly on these matters on Tuesday, but I felt it was important to add to subsection (8) the requirement that the decision is made as a result of exercising

''non-discrimination in respect of disability or age.''

We have disability legislation, but not legislation that relates to discrimination on the ground of age.

Ms Claire Curtis-Thomas (Crosby, Labour)

On a point of order, Mr. Cran. I was wondering whether members of the public are to be invited to join us.

Mr James Cran (Beverley & Holderness, Conservative)

I was not aware that members of the public had been prevented from so doing.

Ms Claire Curtis-Thomas (Crosby, Labour)

There was a policeman outside.

Mr James Cran (Beverley & Holderness, Conservative)

Perhaps the matter could be investigated.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

There is legislation in respect of disability, but in many of the day-to-day cases that we have considered within the scope of the Bill, it is unlikely that the Disability Discrimination Act 1995 would kick in unless a formal complaint was made or the matter was something that the Disability Rights Commission felt was worth taking forward. I know from my discussions with the commission that it often looks for ''critical mass'' before it initiates action on a problem.

People who make decisions bring with them certain prejudices. I have now reached what is known as later life—that is, over 50 years old—[Hon. Members: ''Never.''] I am afraid so. The same is probably true of quite a few members of Committee, and we all know how we start to see discrimination on the grounds of age. We often debate the matter on the Floor of the House. We know that it exists. Within our lifetimes, we can remember when people with disabilities were not regarded by the state or society as worth educating. Fortunately, that has changed, but the time scale in which that change has taken place has been brief and many people still carry with them a lot of prejudices in their perception of disability and age. The amendment would add to the clause the requirement on people to think twice about any personal prejudices that they had in respect of age or disability.

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

The hon. Lady has again raised the issue of discrimination that we discussed on Tuesday in relation to amendment No. 90. The Government share the hon. Lady's concern that everyone should be treated with equal respect and have equal access to health care and other services. That is very much in keeping with the spirit of the Bill, which sets out to change public attitudes and behaviour towards people who may lack capacity.

Although I understand the hon. Lady's concern, I assure her that the Bill, together with the Disability Discrimination Act 1995, already contains adequate provision to prevent discrimination on the basis of disability. We consider that the Bill offers considerable protection against discrimination. It requires all actions taken and decisions made on behalf of the person lacking capacity to be in the person's best interests and, as I said on Tuesday, it would clearly not be in a person's best interest to be unfairly discriminated against.

The Disability Discrimination Act provides further reassurance. Part III deals with discrimination in the provision of goods, facilities and services. In our discussions on Tuesday, the hon. Member for Daventry (Mr. Boswell) helpfully raised the relevance of the Act in relation to the Bill's provisions, because of the read-across of the Mental Capacity Bill's reference to impairment in clause 2. The very first clause of the Disability Discrimination Act says that

''a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities''.

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

The Minister will recall a degree of diffidence in my putting the point on Tuesday. The fact of an impairment, albeit one that affects mental capacity, would not necessarily by itself prevent someone from carrying out their normal duty. There is no precise correlation between the fact of impairment and the lack of mental capacity, even if that impairment is a mental one.

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

The hon. Member is right to establish that nuance, but as I said it is unlawful for a service provider unjustifiably to refuse to provide a service to a disabled person on the same terms as to other people. Service providers are required to make reasonable adjustments to enable disabled people to make use of their services. Those provisions mean that hospitals, care homes and social services must offer people who lack capacity the same standard of service, on the same terms, as all members of the public. As I said on Tuesday, however, the Disability Discrimination Act does not cover discrimination in private situations. That is because discrimination is a matter of civil law, and is difficult to enforce in a private sphere. Private individuals discriminate in their personal relationships, which is not unlawful. As the Bill covers both public and private situations, an all-encompassing anti-discrimination clause would be unenforceable.

I appreciate what the hon. Member for Tiverton and Honiton and other hon. Members have had to say about age discrimination—an issue that has rightly been discussed inside and outside this place for some

time. There may well be a case for legislation in that area, but the proper place for anti-discrimination provisions is in specific anti-discrimination legislation, with a proper framework and mechanisms supporting the measures. I am aware of work being done by my colleagues in the Department of Trade and Industry to tackle age discrimination in the workplace. Their consultation document ''Equality and Diversity: Age Matters'' was the first to focus exclusively on proposals for age legislation. The issue is live in and around the political world. Therefore, while sharing the hon. Lady's concern to prevent discrimination, we do not think it is necessary or helpful to amend clause 4 in order to do so. I hope she feels reassured and is able to withdraw her amendment.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

I am grateful to the Minister. In my heart, I am not that reassured, but in view of the fact that I want the Committee to make progress and I do not want a lot of amendments to be dealt with under the guillotine at the end of this sitting, I beg to ask leave to withdraw the amendment.