Clause 34 - Appointment of independent consultees
Mental Capacity Bill
10:15 am
Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton and Cheam, Liberal Democrat)
I beg to move amendment No. 170, in
clause 34, page 19, line 11, leave out subsection (1) and insert—
'34 Appointment of independent advocates
(1) The appropriate authority must arrange, to such an extent as he considers necessary to maintain the principles set out in section 1 of the Act for independent advocates to be available to assist a person (''P'') when another person (''D'') is considering doing an act, or making a decision to do an act.
(2) The assistance available under the arrangements must include—
(a) assistance to permit and encourage the individual to participate or improve his ability to participate, as fully as possible in the act proposed to be done or the decision to be made affecting him;
(b) assistance to express the individual's past and present wishes and feelings, beliefs and values and other factors which he would consider and are relevant to the decision or proposed action if he were able to do so;
(c) assistance to maintain the principles set out in section 1 of this Act.'.
Mr Alan Hurst (Braintree, Labour)
With this it will be convenient to discuss the following: Amendment No. 171, in
clause 34, page 19, line 16, leave out 'of independent consultees' and insert
'or recognition of independent advocates for the purposes of this Act'.
Amendment No. 172, in
clause 34, page 19, line 17, leave out from 'independent' to end of line 18 and insert 'advocates'.
Amendment No. 173, in
clause 34, page 19, line 20, leave out 'consultee' and insert 'advocate'.
Amendment No. 174, in
clause 34, page 19, line 22, leave out 'consultee' and insert 'advocate'.
Amendment No. 175, in
clause 34, page 19, line 25, leave out 'advice' and insert 'support'.
Amendment No. 176, in
clause 34, page 19, line 42, at end add—
'(9) The provision of assistance may result in the proposed decision or action not taking place under the provisions of this Act.
(10) Nothing in this section obliges P to accept the assistance offered by an independent advocate.'.
Government amendments Nos. 224, 227 and 233.
New clause 3—Advocacy service—
'(1) The appropriate authority must make arrangements to secure advocacy in decisions relating to—
(a) making and reviewing of care programmes
(b) decisions of residence.
(2) the appropriate authority must fully note decisions made in these matters and the reasoning behind them.'.
New clause 4—Duty of care of a local authority—
'Where a local authority have reasonable cause to suspect that an adult who lacks capacity who lives, or is found, in their area is suffering, or likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the adult's welfare.'.
New clause 27—Appointment of independent advocates—
'(1) The appropriate authority must arrange, to such an extent as he considers necessary to maintain the principles set out in section 1 of the Act for independent advocates to be available to assist a person ''P'' when another person ''D'' is considering doing an act, or making a decision to do an act.
(2) The assistance available under the arrangements must include—
(a) Assistance to permit and encourage the individual to participate or improve his ability to participate, as fully as possible in the act proposed to be done or the decision to be made affecting him.
(b) Assistance to express the individual's past and present wishes and feelings, beliefs and values and other factors which he would consider are relevant to the decision or proposed action if he were able to do so.
(c) Assistance to maintain the principles set out in section 1 of this Act.
(3) The appropriate authority may make regulations—
(a) as to the appointment or recognition of independent advocates for the purposes of this Act.
(b) as to the functions of independent advocates in relation to sections New Clauses 2 and 3.
(c) that a person may act as an independent advocate only in such circumstances, or only subject to such conditions, as may be prescribed;
(d) for the appointment of a person as an independent advocate to be subject to approval in accordance with the regulations.
(4) In making arrangements under subsection (1), the appropriate authority must have regard to the principle that support in relation to a proposed act or decision should, so far as practicable, be given by a person who is independent of any person who will be responsible for the act or decision.
(5) The arrangements may include provision for payments to be made to, or in relation to, persons carrying out functions in accordance with the arrangements.
(a) For the purpose of enabling him to carry out his functions, an independent advocate—
(i) may interview in private the person he has been asked to support and
(ii) may examine any record of a prescribed kind which the person holding the record considers may be relevant to the independent advocate's investigation.
(6) In this section and section 35, ''the appropriate authority'' means—
(a) in relation to the provision of the services of independent advocates in England, the Secretary of State, and
(b) in relation to the provision of the service of independent advocates in Wales, the National Assembly for Wales.'.
Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton and Cheam, Liberal Democrat)
I shall take a leaf out of the book of the right hon. Member for Coatbridge and Chryston by saying immediately that the amendments are intended to probe the Government. I hope to test his theory and find out whether that evokes a more positive response, although perhaps the theory works for some and not for others. Nevertheless, that is the intention behind the amendments, although we also want to help to provide greater clarity on the purpose of, and intention behind, independent consultees, which is what this clause and the subsequent three or four clauses deal with. We also want greater clarity on the issue of advocacy, which is a cause of great concern for many organisations watching our deliberations and awaiting the Minister's response with interest.
Advocacy is one of the matters that the Joint Committee, appointed last year to scrutinise the draft Bill, had occasion to look at in great detail. In almost every submission that we on the Joint Committee received—there were perhaps one or two exceptions—the view was that advocacy was one of the keys to realising the potential of what was then the draft Mental Incapacity Bill. Advocacy was a means of enabling people to have as much autonomy, and realise as much of their independence of action, as possible. Having independent advocacy as a right was to be a key part of that. The organisations that made those points to us included the Making Decisions Alliance, People First, the Association of Directors of Social Services, the Law Society and Citizens Advice. The Disability Rights Commission also made clear representations on the Bill, which I will refer to later.
In the Joint Committee's evidence sessions, it was clear just how fragmented, piecemeal and patchy advocacy services are. In parts of the country, there are advocacy services par excellence, which are beacons that provide a model that others could follow. In some areas, such services are frankly ropey, while in others there is no discernable advocacy service. The picture across the country is variable. To date, the Government's approach has been to respond to particular interventions and amendments tabled to legislation, often by Government Members.
The Government have extended rights of advocacy, but have done so in fairly narrow terms. For example, the last but one piece of NHS legislation provided for the independent complaints and advocacy service. Some would argue that that is a fairly narrow interpretation of what advocacy is all about, because the focus of that service is on facilitating use of the
complaints process and supporting people through it. My concern, and the reason for the amendments, is that to many people the provisions in the Bill are not even a form of advocacy. At very best, they are a narrow interpretation of what advocacy is about.
Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)
I know that the hon. Gentleman shares my interest in learning disabilities generally. After the publication of the White Paper and the Government's strategy on learning disabilities, ''Valuing People'', we made similar points about the need for advocacy. Does he agree that the subsequent experience has been less than satisfactory or encouraging, if we apply those points to the Bill?
Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton and Cheam, Liberal Democrat)
That is a fair comment. The aspirations set out in the White Paper rightly secured cross-party support; the idea of advocacy networks is certainly supported. Undoubtedly, one of the Government's concerns about putting advocacy rights in any legislation is the cost. I want to address that point in a moment. As I understand it, the resourcing that went into the implementation of the policy intentions behind the White Paper ''Valuing People'' added up to about £8,000 per local authority. It is hard to see how a meaningful advocacy service could be put in place with such a budget.
It is interesting that the Joint Committee was given quite a bit of evidence pointing towards the experience in Scotland, where there has been a move to develop local advocacy strategies, and where quite a bit of work has been driven, at least in part, by statutory requirements much more broadly drawn than those in English and Welsh legislation.
I will come back to the Scottish legislation, but it is worth drawing attention to the issue of resources, which was considered by the Joint Committee and leads to some questions that I would like to put to the Minister. The Joint Committee report said:
''In answer to a question about the costs involved if a right to independent advocacy was included in the Bill, Health Minister Ms Rosie Winterton said ' . . . quite frankly, it would be extremely difficult to envisage that there would be the scale of resources available . . . To say that we could look at the whole range of people who would be covered by the Bill and imagine that in every case there may be an advocate would be unrealistic for us'''.
The questions arising from that have been put by the Making Decisions Alliance to Ministers and officials for some time. Will the Minister tell us the estimated number of people who will qualify for an independent consultee now? Some estimates must have been made, as the figure of £6.5 million has been given as the cost. It would be useful to know what they are.
What would be the estimated cost of providing an independent consultee for each individual? What has been assumed to be the average cost of providing an independent consultee service? Given the regulation-making power to extend the independent consultee service, does the Minister have a view on whether the £6.5 million mentioned in the explanatory notes would be sufficient first and foremost to cover the proposal that it should deal with those who are ''unbefriended'', but also to allow for that to be extended? How much
money would be left to support other groups who would benefit from having an independent consultee? Some illumination of such issues, and an idea of how many others the Minister thinks might come under the remit of the amendments would be useful when we try to understand how the Government feel that the cost would be unsustainable to them and the taxpayer.
The recommendation of the Joint Committee was clear on the question of independent advocacy. It said:
''We are convinced that independent advocacy services play a essential role in assisting people with capacity problems to make and communicate decisions; helping them to enforce their rights and guard against unwarranted intrusion into their lives; providing a focus on the views and wishes of an incapacitated person in the determination of their best interests; providing additional safeguards against abuse and exploitation; and assisting in the resolution of disputes.''
The issue of disputes has not been adequately factored into the debate about cost. Unless we build low-level dispute resolution into the decision-making processes, the danger, in an increasingly litigious society, is that more cases than necessary would go to court. A more widely drawn advocacy service provided by statute as of right appears an expensive option. However, given what the Bill will, rightly, release and unleash, I suspect that such an option could mean that costs would be better controlled, and outcomes better from the point of view of the person about whom decisions are made.
Mrs Angela Browning (Tiverton and Honiton, Conservative)
I fully support what the hon. Gentleman has said. More and more cases going to the courts would be a matter not only of cost, but of time. There will be a backlog; people about whom there are urgent and critical decisions to be made will be in a long queue waiting for their slot at the court. That happens now to a degree with tribunals, but this would be more severe than that.
Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton and Cheam, Liberal Democrat)
The hon. Lady is right to pull me up on that. Cost is one factor, but there is another cost—the cost of delay and, in many such decisions, the stress and distress that that causes to the individual, and to other family members and concerned and interested parties.
Mrs Joan Humble (Blackpool North and Fleetwood, Labour)
We are all agreeing about the need for advocacy and the help that that can give. If advocacy services intervene at an early stage they can prevent people from forming opposing camps. If a dispute is going before the courts, those camps become increasingly entrenched, and people become increasingly bitter; they hold to their positions without wanting to discuss them in any meaningful way, and the person at the centre is often bewildered by it all. Therefore, advocacy services are very important for early intervention and early dispute resolution.
Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton and Cheam, Liberal Democrat)
The hon. Lady makes the point more eloquently than I could. I hope that the Minister will keep it in the forefront of her mind when she responds to this debate, and that she will pick up the spirit of the amendments if it is not possible to incorporate the literal letter of them into the Bill.
In their response to the Joint Committee recommendation that I have just read out, the Government said:
''We are working with stakeholders to explore more fully the range of advocacy available, how it is most effectively used and how it might interact with the Bill. The underpinning principles of the Bill in themselves support the objectives of advocacy.''
That begs a question or two, which I hope the Minister will respond to now. What was the outcome of the process that was clearly outlined in that response? Was it simply the consultee proposals in the Bill, or is there still scope for further movement on this? The Government acknowledge that the principles set out in clause 1 and the best interests principle in clause 4 speak to the issue of advocacy, so will the court eventually end up setting public policy in this area by simply making a common law right to advocacy by interpreting that to have been the intention? The Government response states that that was the policy intention. Are they happy to leave such decisions to be made by the court, or would it not be better for Government to be clearer about things and to provide the enabling powers in the Bill?
I hope that one of my concerns can be addressed in this sitting. Confusion is arising about the role of the Bill's independent consultee and what most people who have an interest in public policy in the area of advocacy believe advocacy to be. The explanatory notes state:
''The consultees will act as a form of 'advocate' as they are understood in the social care sector.''
I want the Minister to say who in the social care sector recognises an independent consultee to be a form of advocate.
Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)
Does the hon. Gentleman agree that there is a latent confusion between the role of a specialist second opinion from a professional person and the role of an independent consultee or an advocate? Those three concepts seem to have slid almost seamlessly into one another.
Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton and Cheam, Liberal Democrat)
I will come on to that shortly, because there is a conflation between advocacy and the independent appointee type of function that the consultee seems to be fulfilling.
It would be useful if the Minister told us which organisations say that they genuinely see the independent consultee as a form of advocate. I have not looked at the Social Care Institute for Excellence website; it may have surprised me by saying that it shares the Government's view. Has the Social Care Institute for Excellence expressed an opinion? Was it consulted as part of the process? Clearly, many independent agencies—the Disability Rights Commission and others—do not regard the role as a form of advocacy, yet it has been used in an interchangeable—dare I say, almost casual—way in our deliberations on the Bill.
I had the misfortune to miss our third sitting, but I have read the transcript of those exchanges. During the Minister's response, the independent consultee was readily transformed into an advocate. It is important not to blur such ideas. The Disability Rights
Commission has probably provided all members of the Committee with some definitions of advocacy. It says that
''advocacy can be defined as an individual being supported to express and communicate choices, and to have these choices respected and acted on.''
It gave three broad categories of advocacy, such as self advocacy,
''where people are supported to make known their own views and choices, to speak up themselves regardless of how they communicate.''
Has the Department reflected on a question that I asked at our first sitting, when I referred to support for communication? I asked whether a public authority will be allowed to take into account its resources when it has to decide whether it can provide the communications wherewithal to enable someone to communicate his views, wishes and feelings. That is even before a package of care is put in place, but at the stage when the assessments are being made. How can a person exercise his right to be a party to the assessment process if he is not supported with communications aids and so on? I asked about that earlier, and if there has been further thought on the matter, it would be useful to know whether resources can or cannot be taken into account when providing the communication facilities.
The second definition of advocacy was citizen advocacy, in which
''an independent person, without conflicts of interest with service providers, advocates on behalf of another.''
The final form is peer advocacy, in which
''one person who has the same experiences or has faced the same discrimination as another person, advocates for her/him.''
I recognise such definitions, as will other members of the Committee—but more important than that is the fact that they are recognised by those who campaign for and with disabled people, and those who are themselves disabled. Independent consultees do not fit within those models of advocacy, and it is important that we make such a distinction in our debate.
Access to independent advocacy is essential if the Bill's full potential is to be realised, but it is the missing element. It is crucial to making a practical reality of the principles in clause 1, which the Government acknowledged in their response to the Joint Committee were a driver towards advocacy. In Scotland, a statutory provision under the Mental Health (Care and Treatment) (Scotland) Act 2003 states that
''Every person with a mental disorder shall have a right of access to independent advocacy ''.
The Act gives local authorities and national health service bodies the clear duty to ensure that everyone with ''a mental disorder'' has access to independent advocacy services. That so important in making a reality of clause 1(2), which states:
''A person must be assumed to have capacity unless it is established that he lacks capacity.''
Clause 1(3) states:
''A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.''
How can that be judged to have happened if advocacy is not part of the package? Clause 5 provides for the protection from liability of carers and professionals in circumstances when no formal powers are required. Although many decisions go beyond everyday matters that are perhaps less serious than those set out under clauses 35 to 37, they are nevertheless important to the individual whose life is affected by those decisions. They go to the heart of a person's health, welfare and well-being. Safeguards are needed, and the views of the vulnerable person without capacity must be sought.
Citizens Advice has evidence showing that where care plans are reviewed and cases are closed, a vulnerable person in the community suddenly loses services, although they need them, and does not have the means or support to advocate and get them provided again. Citizens Advice provides another example of a proposed move following the death of a carer—the proposal being that the person is moved from the area in which they have established a life and the only home that they have ever known. In such circumstances, advocacy has a part to play. An independent consultee may have a role, but it is important that someone is there for the person.
Mrs Angela Browning (Tiverton and Honiton, Conservative)
The point that the hon. Gentleman is making very well is that when we talk about advocacy, we are talking not just about somebody who is there to assist P to articulate their views, but someone who will be proactive on behalf of P and will either ensure that the sort of scenario the hon. Gentleman just described does not happen, or do something to rectify it. One of the most worrying questions is who will be proactive on behalf of P, rather than just a facilitator?
Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton and Cheam, Liberal Democrat)
That is right. There is concern about the role of the independent consultee, because they are there to give advice to decision takers, not to play the role that the hon. Lady has just described. That is the missing part of the equation that the Bill needs to fill.
It is not just the unbefriended to whom the provision needs to apply. Evidence from Citizens Advice points to disputes in families and occasions on which there is a genuine dispute about what constitutes ''best interests''. As the hon. Member for Blackpool, North and Fleetwood (Mrs. Humble) has rightly reminded us, as we move down a more litigious route, people take ever more entrenched positions from which it is much more difficult for them to shift. It is essential that an advocacy service be involved early on to avoid such disputes degenerating into even more costly and damaging legal proceedings. The Law Society provides an example of a dispute in the family or between the family and clinicians over medical treatment and suggests that the rights to advocacy should be included in assessments, including those made under section 47 of the National Health Service and Community Care Act 1990. We will deal with that when we deal with later amendments.
We have already discussed the Bournewood gap and the Bournewood judgment, on which some useful exchanges were initiated by the hon. Member for
Tiverton and Honiton. The Court identified a number of safeguards that were missing from our legislative framework, including having an advocate and a nominated person—that takes us back to the intervention made by the hon. Member for Daventry. The proposed independent consultee represents an attempt to conflate those two missing safeguards, but we need to have both. Citizens Advice draws a parallel with a guardian ad litem and the service provided in the children's courts. The guardian ad litem does not act for the child, but advises the court. That is what the independent consultee is doing in a number of settings under the Bill. In respect of the guardian ad litem service and the children's courts, the child has an independent representative—someone who is there to ensure that their views, wishes, feelings and needs are central to the discussion in the court—but that representative is separate from the guardian ad litem.
There is a need to unpick the issue and be clear about what consultees might do if they remain a feature of the Bill, and how they differ from and are not an answer to the need for independent advocacy. The concerns will persist until that is clarified in the Bill. Many who are campaigning for advocacy to be developed, for an end to the patchiness of provision and for the quality and standards throughout the country to be raised are genuinely concerned that having independent consultees in a statutory framework without advocacy will send a signal to people who commission such services locally that consultees are the priority in terms of commissioning, and resource allocation and resources for independent advocacy will be squeezed as a consequence. Amendment No. 170 and paving amendments Nos. 171 to 175 therefore attempt to introduce advocacy into the Bill. New clause 3 does the same, but without removing the role of the consultee from the Bill.
New clause 4,which was suggested to me by the Law Society, is about how we give local authorities a clearer statutory duty to investigate and act on allegations of abuse, so it is rather different and separate from the issue of advocacy, although advocacy may play a part in such investigations. The purpose of the new clause is to place a public duty on local authorities to investigate. It is modelled on provisions in the Children Act 1989. At the moment, there is no equivalent provision in statutory law relating to vulnerable adults.
It is right that our debate has focused on advocacy, and I do not want to talk about the new clause at great length, but it is important that we do not lose sight of the importance of elder abuse and the abuse of vulnerable adults. Earlier this year, the Health Committee conducted a short inquiry into elder abuse and came up with some disturbing findings and important recommendations. To this day, there is no accurate figures for the abuse of vulnerable adults and elder abuse in this country. The most up-to-date figure is more than 10 years old, but it suggests that, at any one time, about 500,000 people are the victims of abuse, ranging from assault, psychological pressure
and torture, to theft, intimidation, sexual assault and many other forms of abuse, by formal care staff, informal carers, relatives and others.
The Government's response to the problem was to issue local authorities and the NHS with guidance called ''No secrets'' in 2000, but having examined the issue, the Select Committee concluded that the implementation of that very good guidance was patchy: some local authorities took it seriously, but others did not prioritise it and had not made much progress as a consequence. The intention behind new clause 4 is therefore to give the guidance in ''No secrets'' statutory impetus, and I hope that the Government can respond positively to that intention. When the Joint Committee, recommended something similar, the Government responded by saying that the issue was being dealt with adequately through the ''No secrets'' guidance, but the evidence seen by the Health Committee during its inquiry does not support that contention. It is disturbing that the guidance has not been adequately implemented in many parts of the country, and the new clause is another way of signalling clearly that we want to see it taken more seriously and to give it statutory teeth.
Those, then, are our proposals and the reasons for them, and I hope that the Minister will be able to respond accordingly.
Mr Tom Clarke (Coatbridge and Chryston, Labour)
It is a pleasure for two reasons to follow the hon. Gentleman. First, I very much welcome the fact that we are now discussing advocacy. There is, to say the least, a degree of frustration among the disability organisations that have been following proceedings: as they see it, we have taken a long time to get to this important issue, and I am glad that we have now got to it. Secondly, in speaking to his amendments, which I support, and new clause 27, the hon. Gentleman mentioned Scotland. I would not claim for one second that we have got it absolutely right in Scotland, but we have made considerable progress, largely because we have accepted our responsibilities for pursuing a policy of care in the community and ensuring that the most vulnerable in our society are protected, particularly by the advocacy that we are supporting this morning.
Before speaking to new clause 27, let me refer to the time when I met a group of women who had long been patients in one of those old Edwardian hospitals—Lennox castle, near my constituency. After assessment and after advocates had performed their role in the way that we want them to, those women found themselves living in little houses within a supportive community. It was not one of those places, often called institutions, to which people were sent and perhaps never heard of again. They were living in a new environment, in new homes, with a new lifestyle.
Many of them in earlier days had worked in the shipyards in Glasgow. I asked those women what they thought was the most interesting contrast between their years living in a big institution and the new lifestyle that they now enjoyed. In a Glasgow accent they said, ''They dinnae gie you jabs.'' I shall interpret that, Mr. Hurst; it means that they did not receive injections. That is important, as people are entitled to
know about their medication. I cast no aspersions whatever on the wonderful people who work for the health service, but those women clearly did not have a say in their medication, never mind the lifestyle to which they were forced to become accustomed. It seems that in their case advocacy had made its point. That is why I welcome this discussion.
The amendments on independent advocacy may appear to represent wholesale change in the nature and function of the Bill and its purpose, but I hope that after I have sat down having spoken to new clause 26, my hon. Friend the Minister, for whom I have the highest regard, will agree that what is proposed is the least change possible to make the Bill acceptable to groups involved with disability and older people. With that in mind, it might be worth highlighting what stakeholders have been saying about the Bill. Unlike other provisions, there is considerable accord about how the Bill should be changed if it is to be as meaningful as I believe we all wish it to be.
The hon. Member for Sutton and Cheam has been extremely helpful by referring to the Making Decisions Alliance, a consortium of the country's biggest charities dealing with disability and older people, including Age Concern England, the Alzheimer's Society, Help the Aged, Mencap, the Mental Health Foundation, Mind, the National Autistic Society, Rethink, Sense and Turning Point. In a briefing note prepared for Second Reading, the alliance said:
''We feel the Mental Capacity Bill has the potential to transform people's lives for the better. However, the Government's good intentions are at risk if more emphasis is not given to the vital role played by independent advocates. Without more independent advocacy services to support and protect more people who may lack capacity, there is a danger that this Bill will not be effective.''
If that is true, and the arguments that it is are convincing, that is a great worry to all of us, which we should take on board.
Scope, which is also a member of the Making Decisions Alliance, has put the case a little more bluntly, saying:
''Whilst the Mental Capacity Bill in theory supports the autonomy of the individual, the reality of disablism and the lack of a right to advocacy in the Bill means that the Bill will not achieve this goal, and instead it will help to crystallise the inequality that disabled people face.''
The Disability Rights Commission, an extremely important and well-informed body, has said that it
''remains concerned about the absence of rights to independent advocacy in the Bill. We think the Bill must at minimum provide the right to advocacy for all those that require support when making decisions.''
That is a heavyweight point of view, which we disregard at our peril. The I Decide coalition, a coalition of disability organisations of disabled people, has said that the Bill will
''lead to abuses of our human rights''
unless there is
''a right to independent advocacy to all people who are having any decisions made for them by anybody using the powers given by the Mental Capacity Act.''
This Committee must pay great heed to the Joint Committee that scrutinised the draft Bill, on which several members of this Committee served. Reference has rightly been made to its work several times and I am thankful for the extra contribution to our thinking. After hearing all the evidence from every side of the debate, the Joint Committee concluded:
''We are convinced that independent advocacy services play an essential role in assisting people with capacity problems to make and communicate decisions; helping them to enforce their rights and guard against unwarranted intrusion into their lives''.
The Committee recommended that the Government should
''meet all reasonable requirements, for the provision of independent advocacy services to incapacitated adults affected by the Bill's provisions.''
I am sure that we would all welcome it if the Committee's recommendation were implemented and put into practice with all possible haste.
I have quoted from so many sources because, with great respect to my hon. Friend the Minister, I want to stress, as I did in my speech on Second Reading and have done in various interventions in this Committee, that the issue of independent advocacy will simply not go away—nor should it. No disability group, older people's group, stakeholders consortium, disability alliance or commission thinks that the Government have got the measure right yet. I look forward to hearing from my hon. Friend about who supports the Government's proposals, especially those for consultees.
For disability groups, who have waited 15 years for the legislation—I might argue that they have been waiting even longer, relating it back to my Disabled Persons (Services, Consultation and Representation) Act 1986—independent advocacy is just as important an issue as end-of-life decisions, and both are extremely important to me. Giving access to an independent advocate to someone who wants one is a way of dramatically improving the quality of their whole life—hopefully throughout their life. All the proposals that I have tabled, from new clause 22 to new clause 27, should be seen as a package of measures to meet more effectively the needs of people who lack capacity, and to realise more effectively the enabling ethos that is, rightly, at the heart of the Bill.
I will begin by talking about new clause 27. I recognise that despite what the DRC and disability groups say, in reality we do not have much chance of securing a right to an independent advocate for every disabled person who wants one in every situation in which they want one, even though I stress that I believe that that should be the minimum expectation of the millions of disabled people in Britain whom we are discussing, particularly those with a mental incapacity. That is what the all-party parliamentary group on learning disability believes. I regard it as a great privilege to serve with Lord Rix as the co-chair of that very proactive group. I recognise, however, that politics is the art of the possible. I started by saying that my new clauses on independent advocacy are about making the least change possible to make the Bill palatable to disability and older people's groups. Independent advocates can play a unique and vital role
in maintaining the Bill's guiding principles. We see that in the best practice that we all know exists. New clause 27 would reflect that, while also meeting the Joint Committee's key recommendations.
The new clause also sets out the role of an independent advocate. I shall dwell on that, because it goes to the heart of why stakeholders—the people who will have to implement the Bill—are so concerned about the Government's proposals as they stand. I say that with enormous respect for my hon. Friend the Minister. I hope that she will be able to provide some clarity today about the role that the Government envisage for their new independent consultee service. In the explanatory notes to the Bill, the Government state:
''The consultees will act as a form of ''advocate'' as they are understood in the social care sector. The clauses supplement the powers and duties conferred elsewhere in the Bill.''
In early exchanges with the hon. Member for Tiverton and Honiton the Minister used the terms ''independent advocate'' and ''independent consultee'' as though they were interchangeable. Both those points suggest that by ''independent consultee'' the Government mean what I and disability groups would call an independent advocate. If so, there are some problems, and it is fair that we tackle them openly.
First, the term used by the Government is unnecessarily confusing. Secondly, it wrongly suggests that the Government do not support independent advocacy services in meeting the needs of people affected by the Bill. I am sure that that is not the message that they intend. Thirdly, the prioritising of a new category of advocacy—for that is really what is happening—may have an adverse impact on independent advocacy services already provided by local authorities and others. It seems likely that resources would be taken from another budget to meet the new obligation to provide an independent consultee, and that that would be at the expense of independent advocacy support. That would be highly unfortunate, because on one point we are agreed: although we always welcome new resources, the resources that are available are simply inadequate to deal with the challenge.
In all candour, I would be even more concerned if the Government were deliberately using the term ''independent consultee'' because they did not want an independent consultee to play the role of independent advocate as it is commonly understood in the social care world. That may not be what the Government are doing, but I had to make that point because it is the view of the organisations involved with disability. We are talking about a major change, and if such a change is to be made, the issue must be addressed openly and knowingly.
The Bill says that the function of an independent consultee is to give advice to the body making decisions about the person's best interests; again, that is a matter that the Committee has thought about. There are two points to make about that. The first is that that is not the role of an independent advocate.
The role of an independent advocate is to support a person who may have difficulty making decisions in expressing their wishes and feelings, or to help them as far as possible to participate actively in the decision-making process. Given that such decisions have a huge impact on the quality of a person's life, that is the least that they are entitled to ask. We, too, might be expected to give a positive response.
A basic principle of advocacy is that the advocate does not make any judgments or express any opinions of their own. They may help to ensure that the person is aware of relevant issues that they may not have considered, or speak on behalf of the person to ensure that the person's views are heard and taken into account, but the independent advocate will not make any decisions or judgments on P's behalf. To do so would defeat the whole purpose of having an independent advocate and that, of course, would be wholly unacceptable. The independent advocate is not there to be the decision maker, making a judgment about P's best interests. That is why I am not at all convinced by the Government's recent amendment, which highlights the claim that the role of the independent consultee should be to represent more clearly P's wishes and feelings. At the end of the day, the independent consultee will still have to make a judgment on P's best interests.
The second point, as I commented on Second Reading, is that a number of disability groups suspect that one of the Government's main motivations in introducing the independent consultee service in the draft Bill was to solve the Bournewood issue as easily as possible. The aim was to kill two birds with one stone, but as my hon. Friend the Minister has already made clear, the Government now have to address the implications of the Bournewood ruling properly.
What is even clearer is that if the Government persist with the idea of an independent consultee who would make decisions about P's best interests, it is even more vital that an independent advocate should be seen to represent P's views during the decision-making process. New clause 27 sets out not an absolute right to independent advocacy for people lacking capacity, but a duty for the Secretary of State and the National Assembly for Wales to provide independent advocates to the extent that both authorities can ensure that the guiding principles at the start of the Bill are maintained.
I thank the Committee for its patience in listening to what I have to say. I genuinely believe that I speak for organisations that have taken a close interest in all such matters throughout our deliberations. I trust that there will be a favourable reply from my hon. Friend the Minister. Although the responsibility on the Committee as it considers the Bill is extremely important, I have to repeat that the matter of independent advocacy will not go away.
I offer this thought. I remember sitting in the Committee Room when the 1986 Act was going through. Lord Ashley, a dear friend of many of us in this Room, said that he thought that making progress on these matters, including progress on advocacy,
meant that we had to use the salami method—in other words, to get what we wanted slice by slice. However, I think that even Lord Ashley would agree that after all this time the salami is turning a little sour. Today the Government have the opportunity to redeem themselves, and I invite my hon. Friend the Minister to take it.
Mrs Angela Browning (Tiverton and Honiton, Conservative)
I totally support the representations made by previous speakers on the clauses. I am reminded of what the Association of Directors of Social Services told the Joint Committee, of which I was a member, about advocacy. It is on page 87 of the Joint Committee's report. The association said that
''the best interests of a person without capacity would be promoted by easy access to independent information, advice and advocacy. However, they emphasised that Local Authorities did not have the duty or the resources to secure the provision of support and advocacy.''
Under the Bill, independent consultees would be appointed and the appropriate authorities would have to make such arrangements, particularly in respect of the provisions under clauses 35, 36 and 37. We are talking about some of the biggest decisions of people's lives, particularly those to do with serious medical treatment, and with an NHS body or a local authority seeking to provide accommodation.
While the right hon. Member for Coatbridge and Chryston was speaking, I was thinking about the number of case conferences that I have personally attended in which I have had to fight hard to get somebody with the necessary expertise to attend, so that the conference could be meaningful, particularly when it involved making the right decision about somebody's accommodation. I cannot see how there could not be a conflict of interest if a local authority, a social services department or an NHS health provider has to seek out an independent consultee. Presumably, in many cases that would have to be done in short order; such decisions often need to be made, perhaps not in a couple of weeks, but not in a couple of years. Sometimes there is a crisis, such as the example that I cited earlier, when an adult with a learning disability or autistic spectrum disorder lives with an elderly parent who then dies or is incapacitated. Suddenly, somebody has to make a life-changing decision for that person.
I want to add this dimension to the issue. Whatever relationship a carer may have to P—the person who is incapacitated or partially incapacitated—carers too need advocates. They may be acting in the best interests of P—of somebody whom they love very much—but we all know from our casework that carers are often not the best advocates. Sometimes that is particularly so if they are very close to P. It is not that they do not mean to be good advocates, but they may be so emotionally bound up with the case that they need someone with expertise and clarity to be there for them, as well as for P. As a little team, they need that expertise to be brought in.
About two years ago, I conducted some independent research throughout the country on the availability of independent advocacy services for
adults with autistic spectrum disorders. It was extremely patchy. We as Members of Parliament draw on advocacy services to help us with our casework, and I am troubled; the independent advocacy that exists is patchy, sporadically available, and very much based in the charitable sector, where many organisations are unable to plan their budgets in the medium to long term because of the way in which their funding flows through.
If we are to rely on the independent charitable sector to provide advocacy across the piece—for young people with learning disabilities, for adults with long ongoing mental health problems, and for elderly people who need residential or nursing care, or who have a crisis of the sort addressed in the clauses that we are now coming to—I fear that they will not be able to provide the service that is needed. They cannot cope at present, so how will they cope in the future? It is clear from the legislation that there will be an increased need for more services to be provided across a range of disciplines. That increase is right, but I am concerned that the independent consultee is not going to fit the bill.
I will not repeat the excellent representations made by the two previous speakers, because they have summed up the length and breadth of this issue and what is needed. I cannot see how the necessary resources will be put in place. It would be naive to think that the day this comes into law, the charitable sector will be able to ratchet things up and provide this huge resource out of their existing funds. I would like the charitable sector to be the provider of independent advocacy because its organisations are genuinely independent and have knowledge of the discipline that they are interested in, so I am not saying that is the wrong way to proceed. However, I cannot see how they will be able to rise to that challenge, because there is a lack of recognition in the Bill of the resources that are needed to provide independent advocacy.
Clause 34 states:
''The appropriate authority must make such arrangements''.
When I read that, I worry that the appropriate authority will be a statutory body that has a vested interest in the outcome of the case. Where will they get the services from if they cannot buy them in from the independent and charitable sector? They might provide them in-house at arm's length, which would be unsatisfactory because, apart from anything else, the directors of social services have told us that they do not have the resources to do that, and I have not come across any provision in the Bill that allocates additional resources for it to be done.
Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)
I am sure that my hon. Friend has also noticed that the provisions in the Bill simply relate to the giving of advice to local authorities. The advocates have no executive role, nor should they; however, it is open to local authorities to take not a blind bit of notice when the advice is tendered, and that may well happen.
Mrs Angela Browning (Tiverton and Honiton, Conservative)
That is right, and I say from the experience of having dealt with casework involving adults with mental health problems and autistic
spectrum disorders that when push comes to shove, if the local authority cannot provide the right outcome, particularly in terms of the care package or appropriate housing or rehousing, ultimately things have to go to court to be challenged and decided. Regrettably, that is happening more often.
One looks to those law practices that have a record in successfully taking on social service departments. They often sort matters out before they go to court.
However, that is not how things should be. If the independent advocate or consultee is not the sort of person who at the end of the day will advise—
It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at half-past Two o'clock.