Clause 32 - Consulting carers etc
Mental Capacity Bill
9:45 am
Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)
In a sense, these discussions all hang together. Clauses 32 and 33 relate to safeguards for P if P is participating in a research project. By definition, P lacks capacity if those clauses apply. Amendment No. 45 touches simply—or perhaps not so simply—on the independence of persons who may be consulted about that.
There is a welcome provision in clause 32 for carers and other related persons to be consulted. Subsection (6) refers to
''the donee of a lasting power of attorney'',
who might well be a relative of the person who executed that LPA, so it would be ridiculous to rule them out of being considered as the relevant carer. I ask the Committee to pause and think about the deputy, however, because that person is appointed by the court. He or she may well be a professional person—one who is involved, for example, in social services—who is appointed because there is no attorney and P lacks capacity. People may feel that
there is a potential clash of interest for the deputy, who may have other commitments and be guided by his own professional codes or his employers' instructions, and thus may not be able to give an unfettered view. More particularly, as the Committee may realise, even if that person can act in good faith on behalf of the person for whom he is the deputy, other people from outside might question whether he is truly independent. There are a number of solutions to that problem.
I invite the Minister to take this matter away, because I do not want to re-open the debate on clause 31. However, in particularly difficult cases, it may be sensible for the court or a deputy appointed for the specific consideration of the research project to be right outside the box. In such circumstances I would be relaxed about dealing with somebody who was already a court deputy. I am not clear whether, under the proposed legislation, it would be possible to have two people with that formal function in different respects, or whether the court could appoint an independent person who is not called a deputy for that purpose.
I do not want to speak about this at length again, but during earlier discussions I suggested a ''mixed economy'', with as many people involved as might reasonably be possible. It would be all right to use a court deputy, provided that there was another person outside the box of whom it could not be said that they were already committed, or compromised, in taking the decision or giving the advice. I realise that these are difficult matters, but there are a number of ways of solving the problems and the Minister needs to reflect about things, not least because of her concerns about the sensitivity of research going on at the very edge of what might be deemed to be in the person's best interests. That is an underlying principle of the Bill. She needs to reflect on an overt clash of interests that might arise from the drafting of the Bill, or on any potential charges of misconduct that might be levelled at a deputy, even when they were giving advice with the best of motives and in good faith.
It is important to state that we are talking about a person on whom research may be performed, but who lacks capacity. It is extremely important that nobody should be seen to be manipulating the situation to his or her own advantage and not in the best interests of the person involved. We have to maintain that underlying principle throughout these clauses.