Mr Alan Hurst (Braintree, Labour)

I remind the Committee that with this we are taking 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.'.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

I apologise to the Committee because at the end of this morning's sitting I was halfway through a sentence and I cannot for the life of me remember what the first part of the sentence was. That probably shows that I should conclude my remarks about the amendments. There needs to be a demonstration on the part of the Government that there is the political will—

Sitting suspended for Divisions in the House.

On resuming—

Mrs Angela Browning (Tiverton & Honiton, Conservative)

As I was saying, it is important to bear in mind political will and whether independent advocacy would enable the Bill's good intentions to be realised, or whether its omission will hamper that endeavour.

I drew the Committee's attention to the report of the Joint Committee, of which I was a member. When the Minister gave evidence to the Committee, she said that the Department had not calculated the costs of independent advocacy because if it was added to the Bill,

''given the range that would be taken under the Bill and the numbers of people involved, she thought that it was unlikely that the necessary resources would be available.''

The political will must be there to make the resources available. There will always be articulate people who know their way around the system and can access independent advocacy on behalf of P or vulnerable people who come within the scope of the Bill. However, the rest will not have that opportunity.

The Minister should consider carefully the Government response to the Joint Committee on advocacy, in which they say:

''The Committee recommended that the Bill should acknowledge the valuable role''

''independent advocacy services''.

Then they say that those who lack capacity and want to assert their rights will be able to do so through a range of services. However, that is not the same as independent advocacy, as colleagues from all parties have so articulately argued today.

I ask the Minister to reconsider. The alternative to independent advocacy is that people will end up going to court and there will be more litigation and tribunals. There will also be a much more lengthy and expensive procedure—with costs attached for the public sector—that will prevent P and vulnerable people who lack capacity fully enjoying the benefit of the principles stated right at the beginning in clause 1. That is at the heart of what we are trying to do to improve life for people who lose capacity.

Mrs Joan Humble (Blackpool North & Fleetwood, Labour)

I enter this discussion about advocacy to emphasise just how important I feel its role is. We have already heard some excellent contributions, so I will not repeat what others have said; I will only pick up a few key issues.

It is important that my hon. Friend the Minister revisits the recommendation of the Joint Committee. Time after time during that Committee's deliberations we heard individuals state the importance of advocacy services to the whole Bill, not just a particular part of it. I support colleagues who tabled the amendments because I am concerned that the role of the independent consultee as framed in the Bill is extremely narrow, which is not what the many organisations that have been lobbying for many years about this legislation told us is needed. Why independent consultees? Where did the idea come

from? The Joint Committee was quite clear in supporting the call for independent advocacy; we were not looking at the narrowly focused role for independent consultees that my hon. Friend regards as the one that they should perform under the legislation. Because that role is so narrowly focused, I fear that people will miss out on opportunities that should be there for them under the Bill.

Like other hon. Members, I think that terminology is important. We have already had confusion about differences between court-appointed deputies and people with a lasting power of attorney, and now we have confusion between consultees and advocates. There has to be some simplicity to the process so that the people we are trying to help—people who lack mental capacity, or who have variable capacity, and their friends and relatives—have a much clearer idea of who is there to help them. The more people with more titles doing slightly different jobs there are, the more confusing it is for those we are trying to help.

People like me, who have supported advocacy services for many years, have laboured long and hard to assure people that advocates are not lawyers or people who represent individuals as lawyers do—describing what is best for them. They are the voice of the individual. Other organisations, especially those that represent people with disabilities, have worked hard to draw attention to what advocacy services do. The point at which we start to win the argument it seems to be the wrong time to begin talking about consultees and to introduce yet another term into the subject area.

It is clear from the remarks of many hon. Members that advocacy services around the country are variable. I worry that the Government assume that advocacy services will be available for people who need them. First, some parts of the country do not have advocacy services. Secondly, there are services in some parts of the country that not many people would want to use. Thirdly, if we introduce independent consultees, there is a threat that existing advocacy services could disappear. Many exist on precarious funding. As I have often said, I am the president of Blackpool advocacy services. At our AGM on Friday, the chief executive had to report that an excellent citizens advocacy service that we had run for three years had reached the end of its funding stream. She spends all her time trying to obtain more funding for the excellent services that are being provided. Existing advocacy services have no security.

This Bill is our opportunity to look at the larger picture. We can think about a national framework and what we mean by advocacy services, building on the proposals in the excellent ''Valuing People'' White Paper, which emphasised the need for advocacy services and made money available for them. We should take the opportunity to define terms such as ''advocacy'' and define basic standards. What standards should people be able to expect, wherever they live? People in my constituency are fortunate—I would say that, wouldn't I? Blackpool advocacy services provide some very good services and we

receive excellent feedback. People come to us saying ''More, more, more.'' The Bill will result in more, more, more—but I do not know where we shall find the resources.

Ann Winterton (Congleton, Conservative)

I am interested in what the hon. Lady has to say. The Minister has acknowledged that the funding that might be required will not be available. Does the hon. Lady agree that the voluntary and charitable sector can fill the gap and ensure standards in independent advocacy? One example is the advocacy scheme started by Age Concern in Cheshire some years ago. Many volunteers, including many who had taken early retirement and wanted to be involved, trained and proved to be good independent advocates. Is not that one way forward?

Mrs Joan Humble (Blackpool North & Fleetwood, Labour)

The independent sector has a vital role, but there is a need for consistency across the country. The hon. Lady mentions training for volunteers; I have met very committed and talented volunteers who come forward and give their time, but I have seen no national framework for their training. If we start to talk about the importance of having advocacy services all over the country, we must think about the framework and assess how we can best approach the issue.

I am sure that the Minister will suggest that the Bill is not the forum for doing that, but the question then arises: which Bill will be the right one? The subject of advocacy services has been raised in connection with just about every item of health and social care legislation in which I have been involved in the past seven and a half years, and I am still waiting. I do not want to wait 18 years like my right hon. Friend the Member for Coatbridge and Chryston (Mr. Clarke); I want it now, which is why I argue that we should take the opportunities presented by the Bill to examine properly what we mean by advocacy services and how they can contribute in the circumstances covered by the Bill and in other health and social care settings.

My hon. Friend the Member for Aberavon (Dr. Francis) asked me to raise an issue if he could not be present when we were talking about advocacy services. We have all received correspondence from family and carers groups, including some in Wales. They wrote directly to my hon. Friend about an issue that had been raised with members of the Joint Committee by those representing families who felt that an independent advocacy service posed a threat to their role as parents and carers. I assume that they would feel the same about the independent consultees.

It is important that we recognise that parents and informal carers perform a valuable role: many vulnerable people live at home with their families and receive the bulk of their care in that setting, and family members understand their needs very well. One of the challenges for advocacy services and for the independent consultees as set out in the Bill will be how to engage with family members without being seen as a threat. Ultimately, however, the voice of P—the views and wishes of the individual who lacks capacity or has variable capacity—has to be heard, and sometimes the

family might not represent P's voice in the way that P would want. That, if anything, underlines the need for independent advocacy and sensitive advocacy services. I am reminded of a remark made by Ann Rodham, chief executive of Blackpool advocacy services, when she gave her annual report last week. She said that the advocacy services that are offered in my constituency are ''discreet, subtle and confidential''. They have to be. The advocate must not trample on the sensibilities of any of those who are involved in the care of an individual. That is why good advocacy services are so valued: they can pull together many different points of view and ensure that the voice of the individual is heard. I have real doubts that, unless the Bill is altered in some way, that voice will not be heard.

The independent consultee described in the Bill fulfils a different role. He or she is to listen to the individual and to reach a conclusion and represent what he or she thinks are the best interests of the individual in a way that an advocate would not do. There might well be a function for such a person within the terms of the Bill, but I contend that that role is not exclusive and that advocacy services as I understand them can feature too. I am worried that the explanatory notes say that independent consultees perform a function as

'''advocates' as they are understood in the social care setting.''

No, they do not. I want to know where advocacy services, as I and many others understand them, are in the Bill.

I am not asking the Minister to state in the Bill that everybody who might possibly be covered by the Bill has to have an entitlement to advocacy services. No Minister can give an open-ended commitment like that. However, surely there can be a form of words such as has been included in social care legislation that would act as an enabling clause so that, in given circumstances, and using codes of practice, individuals would be made aware of advocacy services, and those advocacy services would be encouraged and developed in local areas.

The Bill offers people enormous opportunities to the vulnerable people about whom we are so concerned, and it could have enormous spin-offs across the social care and health care sectors. I hope that the Minister will seriously consider the excellent amendments tabled by my right hon. Friend the Member for Coatbridge and Chryston and others. Everyone has spoken to them with passion and knowledge.

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

The intensity and eloquence that members of the Committee have brought to the debate speaks for itself. People feel strongly about the subject, but I shall not attempt to reinforce or second-guess their arguments.

I start with the speech of the hon. Member for Blackpool, North and Fleetwood (Mrs. Humble). I very much agree with the thrust of what she said and some of the caveats that she mentioned. Probably the strongest thing that she said—I have already said it to the Under-Secretary of State for Constitutional Affairs, the hon. Member for Tottenham (Mr. Lammy), and I shall say it to the Minister of State, Department of Health, the hon. Member for

Doncaster, Central (Ms Winterton)—is that people will need to be guided through the complex terminology of the Bill. They will need to be able to tell the difference between an attorney, a deputy, an independent consultee, a second specialist called in as a second opinion, and so on—and that list does not even include the public guardian or the official solicitor, with whom we will deal in later clauses. The arrangements are extremely complex and one can imagine those who may be on the verge of capacity being terrified by the thought of them and of the difficulty of the decisions that have to be made.

The other warning that I give to the Minister before she speaks to the Government amendments and replies to the debate is that probably the most deadening words in the English language are, ''I'm from the Government. I am here to help you.'' The only exception to that rule or variant on it—I hope that the hon. Member for Lewisham, East (Ms Prentice) will not take it amiss—is someone saying, ''I am from the Whips Office, and I am here to help.''

The distinguishing feature of advocacy—it was brought out not only by the hon. Member for Blackpool, North and Fleetwood but, in a passionate contribution, by the right hon. Member for Coatbridge and Chryston and by Opposition Members—is the need for independence in the process. One of my Front-Bench activities is to keep a friendly eye on the BBC. If it has one distinctive feature, it is independence. In the same way, although everything else can be cut away, the independence of the advocate is important. I hasten to qualify that observation by stating that that is not so that the advocate can go off on an ego trip of his own; he should, as far as possible, be the person P and express P's views. As has already been said, that is a slightly different role from that of someone who is a professional representative, whether salaried or as a lay helper. I think of the lawyer, who may take a detached view and say, ''I don't think social services are going to provide that, but we might be able to broker this,'' and will tailor requirements to the circumstances of the case. One point that I emphasise—it has already been mentioned—is that advocacy is an elastic concept, but it cannot stretch further than the independence of the advocate and his ability to represent and speak for the person concerned. What we have in clause 34 does not achieve that; it is right to draw that distinction.

The other point that I wanted touch upon—there was a degree of confusion on the subject during a short intervention on the hon. Member for Sutton and Cheam (Mr. Burstow)—is the second opinion. It is perfectly proper—indeed, I understand that in the health service in normal circumstances, a person has a right to seek a second opinion.

The Minister of State, Department of Health (Ms Rosie Winterton) indicated assent.

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

I see the Minister confirming that. I speak of a medical opinion, not advocacy—a second opinion on whether a person has mental capacity,

what is his condition and what is the appropriate course of treatment. At one stage, there was slight confusion—perhaps not in the mind of the Minister, but in relation to how the Bill came across under the Government's arguments. It seemed that the consultee was there either to give the second opinion or to replace it. That is to some extent given credence by the wording of clause 34, on which clauses 34 to 37 hang, and which says that the consultee is there to give advice.

If I may say so—and I mean no disrespect to the excellent officials briefing the Minister on the Bill—officials are there to give a detached dispassionate view of what ought to happen, not to represent the fears and feelings of the person concerned. We remember that issue from an earlier stage.

We are talking about a whole spectrum of people, and they are all appropriate in different circumstances. To reinforce the point made by the hon. Member for Blackpool, North and Fleetwood—this needs setting out on paper, too—there are people with specialist medical or professional opinions, people who can give advice and support, and people who can have a dialogue with the local authority. However, there are also people who stand aside from all that and say, ''This is what I say while representing P, who has no mental capacity—or lacks it in this respect—and needs someone to speak for him or her.'' Those need to be kept separate in our mind as we look at what is provided.

I now come to resources; any Minister is bound to have that issue in mind, and Committee members have already rehearsed the subject. There is no open chequebook; there cannot be in any Department. Will the Minister say a little more about what is already in the Bill and the explanatory notes? The provision of the independent consultee service is highly circumscribed and operates only in specific conditions.

On page 37 of the explanatory notes we can see the effect on public expenditure. Throughout the Bill the figures are relatively modest, but the figure for independent consultees is quite substantial: £6.5 million per annum. That is probably on a slightly higher scale than what the ''Valuing People'' White Paper implies will be provided for those with learning disabilities. I am pleased to see the Liberal Democrats nodding. A tariff of £8,000 per local authority to cover the whole issue of learning disabilities does not go very far, given that, from recollection, I think that there are some 2 million people involved—a population similar in size to that which we are discussing.

Of course, the provision does not relate to the whole of the population lacking mental capacity, but to perhaps just 2 million of them. It relates to the group who are unbefriended, and to specific issues involving serious medical treatment, or where such people should live. That is a relatively small population, but I would like the Minister to speak about the number of people whom she thinks may be involved. Is the unit of funding that should be available for an advocate in a

particular situation—or an independent consultee, to use her phrase—appropriate to meet the needs of the Bill? It would be useful if she would talk about that.

That leads me to the wider issue. As I said, one cannot switch off the subject of resources. There are important problems relating to it, particularly for local authorities—such as the real issue of whether they will allow any independent consultee services to displace their own efforts as a way of budget shifting.

I have reservations about the concept of advocacy as a commodity, just as I have reservations about training as a commodity, and I have expressed that in other contexts. It is easy for people to say, ''We need more advocacy,'' or, ''We need more training.'' Goodness knows, they are both highly important in the Bill, and we will explore some of the nuts and bolts of the operation when we talk about putting its provisions into practice. However, subject to that reservation, what has been said leads me to feel that the Minister needs to reflect and give the Committee a more convincing answer on a number of points than we think that she has made to date—although perhaps we are being unfair to her.

There are two points to emphasise. First, this set of clauses refers to very definite conditions, such as medical treatment or where someone is to live—whether they are to go into care or be supported in their own home. It does not cover the whole range of decisions. As members of the Committee have pointed out, those decisions start with the decision whether that person has mental capacity, and are, in theory, replicated every day. When someone is on the margin, that sensitive issue might have to be decided from time to time, and independent advice should be considered.

In short, the clauses are intended to ensure that the service is applicable where P is unbefriended, which means that there is nobody else to speak for P. There may be lots of people around, such as carers carrying out acts under clause 5, attorneys, deputies from court, specialist advisers and other people who carry out services for P, but, as has been explored, they may have different interests. The concern is that at some point, in circumstances to be defined, P may need independent advocacy. That has been the common theme today, and it has been expressed across the Committee in a bipartisan way.

Can we draw a sensible boundary around circumstances in which advocacy might be appropriate, without saying simply that there is a general right to advocacy willy-nilly? Can we imagine circumstances in which advocacy would be appropriate over and above those in which there is nobody else to speak for P—when somebody is needed to cut through the thicket and say, ''You're all talking about P, but I'm standing up for him, and this is what I am saying''? Those are important considerations for the Minister.

I have not crafted amendments on this major issue, partly because I wanted to reflect on the debate, but I have one idea to offer the Minister, which could act as a safeguard. We are coming on to our first material discussions about the public guardian. Perhaps, over and above the categories set out by the Minister,

whether such people are advocates or not, we could make provision for the public guardian, or the court, to indicate that it would be helpful, just or appropriate—I am using general words, because I have not framed an amendment—to provide for independent advocacy in a particular case. That is my attempt at a solution that would widen the narrow remit in these clauses, but avoid a sort of open season in which people assume that there is unlimited advocacy for everyone, when that is not the case.

The message from the debate so far is that the Committee is not happy with the narrow remit, and Members are suspicious that it may be curtailed because of resources. We need to have a serious debate on that. There is also suspicion that the remit may not be sufficiently independent and unfettered to provide adequate advocacy as most of us understand it, although that is an elastic concept. We look to the Minister to give us assurances, because it is one area of the Bill with which the collective voice of the Committee is most unhappy.

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

This has been an extremely helpful and well informed debate, with strong feelings on all sides. I realise that members of the Committee feel strongly about this issue, and I pay tribute to everyone who has contributed, not least my right hon. Friend the Member for Coatbridge and Chryston, who has campaigned on this issue for many years.

Before I respond to the proposed amendments, I will go into some detail. It will be useful if I first explain why we included clauses 34 to 39 in the Bill. Those clauses create a safeguard—the independent consultee—to give extra protection to the most vulnerable people who lack capacity when major decisions are taken that could have a great impact on their lives. This is a very important safeguard, along with the other protections afforded by the Bill.

As a result, decision makers such as health and social care professionals will have a duty to consult the independent consultee when serious decisions are taken about future living arrangements, care or treatment and there is no one other than paid carers to consult. This is an innovative area of policy, which was introduced in response to concerns raised by stakeholders. We certainly believe that some people who lack capacity are especially vulnerable when serious decisions are taken in their lives, particularly those who have no family member or friend to hand. Again, involving an independent person in the decision-making process will provide an extra safeguard.

We estimate that about 20 per cent. of people in England and Wales who lack capacity when major decisions are being taken about their living arrangements, care or treatment, have no friends or family to consult. The independent consultee safeguard will provide the person with someone who is on their side so that there is never a closed relationship between the decision maker and the person lacking capacity.

Mrs Joan Humble (Blackpool North & Fleetwood, Labour)

The hon. Member for Sutton and Cheam made an interesting point about disputes. I have had more constituency cases involving people who want to move home and who are having problems with their family than those that involve people who are on their own. I therefore worry about the narrow prescriptive element of the definition of consultees, the unbefriended and people who do not have families. Sadly, in my casework there have also been one or two instances of financial abuse, in which the person with the disability is bringing a lot of money into the household in the form of benefits, the parents do not want their adult child to leave, and actively prevent them from doing so. How will that scenario be covered by having an independent consultee?

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

We will address that issue in clause 39, but I shall deal with it in the course of my remarks, because the hon. Member for Tiverton and Honiton (Mrs. Browning) also raised it.

As I said, by introducing the independent consultee safeguard, we are trying to target the most vulnerable group of people who lack capacity. In the first instance, those are the people with no friends or family to be consulted in these very serious situations. Many hon. Members, and some of the amendments, suggest that we change the name to ''independent advocate''. We chose the name ''independent consultee'' because this is, in many senses, a new service.

I return to the reason why I believe that the new role builds on advocacy services and does not undermine them. The independent consultee will play a specific role for the purposes of the Bill. We want to avoid using a term that can mean different things to different people. We have used a new title to emphasise that it is a new role and a new service. The independent consultee will be specially trained to find out what they can about the person to whom they are the independent consultee, and to find out what options may be available.

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

It might help if, at this point, the Minister could confirm to the committee that, subject to regulations, which she may want to come back to, independent consultees are broadly envisaged as unfettered. They can range around, make such inquiries as they need to about P's circumstances and ask the opinion of any other person if they think that it might be relevant, including that of carers or people who might have helped P with decisions in the past.

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

That is the case. The independent consultee will clearly have the right to talk to the person lacking capacity and a right of access to relevant records. They will find out as much as they possibly can about the likely wishes of the person and explore a range of possible outcomes that may be open to that individual. We want to give the person those powers so that they can take a broad view of what will eventually be in the best interests of the individual, which they can then recommend to the decision maker.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

I asked earlier whether resources are taken into account when it comes to facilitating communication. Will independent consultees, in doing their work, have the means to ensure that P can communicate his or her views effectively? In other words, will the consultee be completely subject to the principles at the beginning of the Bill?

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

Yes, and my hon. Friend the Under-Secretary of State for Constitutional Affairs agreed that we would take away the issue of communication and come back with further information.

I want to turn to another point that the hon. Member for Sutton and Cheam and others made earlier about the Joint Committee's attitude to advocacy. Although I recognise that it was certainly supportive of the idea, the Committee said that it would be inappropriate to recommend that resources be committed to provide a statutory right to advocacy. The issue has been recognised, and we have tried to take the Joint Committee's recommendation that we look at a provision that would be appropriate to the Bill. That is how we concluded that an independent consultee could provide such protection.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

May I talk the Minister through a common scenario? An elderly person is admitted to a hospital having had a severe stroke, cannot return home and has to be placed in residential or nursing care. Most hospitals now have a member of the local social services department who acts as an intermediary between the family, if there is one, and the hospital in order to place the elderly person. Are we now to assume that an independent consultee would also be brought in, and if so, where would that person come from?

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

If the individual in question has family and friends, there will not be an independent consultee. When someone has had a stroke and it is envisaged that they will move into long-term residential care, but they have no family or friends who could be consulted, an independent consultee will be brought in. I shall refer later to how we envisage independent consultees being appointed, and the type of people that they could be. We are examining whether, in consultation with stakeholders, it would be appropriate to expand the role to situations in which there is perhaps a family dispute.

Mr Paul Holmes (Shadow Minister (Work and Pensions), Work & Pensions; Chesterfield, Liberal Democrat)

I apologise if my point was covered this morning when I was elsewhere participating in a debate on disability benefits. There are two related issues in the Minister's argument. First, the Making Decisions Alliance is concerned about the terminology ''an independent consultee'' and says that it implies that such consultees would be more passive than that implied by the term ''an independent advocate''.

Secondly, who would employ the independent consultee? The Minister may cover that matter later, but there is always the fear that if the independent consultee is seen as an employee of social services or the national health service, he would still be in a more

passive role because he would be subjected to the budgetary constraints of the organisation for which he worked. The terminology is passive, but the question of who employs the independent consultee could also lead people to consider that the consultees might play a passive role.

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

I emphasise to the Committee that I do not regard the role of an independent consultee as a lesser role than that of an advocate. In fact, I describe it as an advocacy plus role. I expect the independent consultee to have advocacy skills, but to be able to build on them as I have described, through specific training, so that they can give wider advice to the individual. At present, social services might be funding groups that provide advocates and there is no reason why those advocates would not be able to undertake, for example, extra training on top of their advocacy skills so they could develop the type of skills that I am talking about. They would be no more in hock to the employer than advocates are at present.

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

The Minister must be careful not to widen the role of the advocate or the independent consultee beyond the clauses to which she has tied them. Under clause 39, there is a power to extend the consultancy service, which is probably what she has in mind. At present, the idea that the consultee could go beyond issues of serious medical treatment and residence to consider other factors, including stimulation in a person's day-to-day life and quality of life issues, is not covered by the Bill, although some of us may wish that it were.

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

If someone is considering a change of long-term care from one care home to another, I expect the independent consultees to look at what is available in a different area. I want them to ascertain the wishes and feelings of the individual and find out what is available in other places, compared with where the person is now. That would be part of the decision-making process. Such matters would come into the equation, if we were asking those people to undertake the role that we have defined.

Many people have asked for clarification of the role of the independent consultee, and wanted to know whether we see it as a substitute for independent advocacy. I am clear that independent advocacy has an important role to play in helping people to live independently and make their own decisions. That is one of the key principles of the Bill, and we say something about it in the code of practice. There is growing provision at local and national level—some 800 organisations are now operating advocacy services. I accept, as my hon. Friend the Member for Blackpool, North and Fleetwood said, that the services are not all as wonderful as those in Blackpool.

Advocacy services are often locally funded grass-roots organisations. Many organisations say that that is how they would like to be, because they wish to operate independently, and are dependent on different funding streams. We believe strongly that it is important that whether advocacy services are commissioned through primary care trusts or others, they must reflect the local needs of the population.

There is no doubt that we will continue to support the provision of independent advocacy, and we have made it clear to local authorities and the NHS, through guidance, that independent advocates should be brought in where appropriate.

My hon. Friend the Member for Blackpool, North and Fleetwood and my right hon. Friend the Member for Coatbridge and Chryston are concerned about whether these measures would undermine the provision of advocacy services. They absolutely would not—I hope for the opposite effect. As I have said, an independent consultee would not be ruled out if they were already an advocate. Indeed, one role could add to the other. That is important, which is why we say that the service will be statutory, will meet national guidelines and standards and is specific to the group of people that I have outlined. If somebody already has an advocate and wishes to keep talking to them, that is fine. However, we would expect a combination of skills in this role, so that people could use advocacy skills, add to them the ability to consider somebody's wider circumstances, be on their side—as a friend to the unbefriended—and make representations to decision makers about what they felt was in the person's best interests.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

It is useful to have further illumination. Many people would feel that the Minister's description of the role of the consultee—being on the person's side, finding the facts and doing research—involves skills that one would expect to be part of the set of skills of an advocate. However, she suggests that the role is also about giving advice to the decision maker. It is a separate role, and I asked earlier in connection with my amendment whether she would deal with the complication of an advocacy role, which is growing as we listen to her set out the case for the clauses, and the nominated person role. There is a danger that the two roles will not easily fit together, and in other circumstances—particularly in children's law—they are clearly separated. How does the Minister reconcile the differences of interest that might emerge?

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

We will have to differ on that, because it is important to realise that we have highlighted people who are completely alone in the first instance. We are talking about somebody finding things out by building on advocacy skills, so that they make judgments that balance what an individual feels or asks for with the other available options. Decisions are not made on the grounds of the individual's feelings or requests alone.

Let us suppose that there was straight advocacy and somebody said, ''This is what the person desires,'' and the decision maker said, ''Well, I do not think that is in their best interests and I am going to do something else.'' This provision gives an added safeguard so that a person can not only express their views and have them listened to, but have the other available options looked at. It is about being a friend to that person—looking after the unbefriended—but at the same time building on advocacy skills.

Mrs Joan Humble (Blackpool North & Fleetwood, Labour)

What my hon. Friend describes is what a lot of advocacy services are doing now. They negotiate with the statutory agencies. They often get in at the first level when there are the early meetings and before things escalate into disputes—for example, by accompanying an individual to meetings with social services departments. They ensure that that individual's voice is heard, and they ensure that it is heard loudly. They do not just accept what a statutory agency such as social services says; where they need to, they get stuck in and work on the individual's behalf in the manner of good old-fashioned citizens' advocacy.

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

My hon. Friend is absolutely right that that is what we want. However, she is describing the very best of services. We have not wanted to use the title ''advocacy'' because it can mean different things in different areas. We want to capture what she has outlined while emphasising that this is a very particular service.

Beyond that, if, after listening to the independent consultee, the decision maker chooses another course of action, they will have to say why they have done so. The independent consultee will have a strong voice. That is why we have defined the role as a statutory service with national standards and specific training. We have done that because we want it to be exactly the role that my hon. Friend has outlined. We do not want there to be any confusion about that; we do not want there to be debates because there are individual volunteers who, good as they might be, are not providing exactly the service that she outlined.

Several hon. Members rose—

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

Everybody wants to intervene. I give way to the hon. Member for Tiverton and Honiton.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

I am grateful to the Minister. This morning, I raised a point about a person without capacity or with fluctuating capacity whose immediate carer—perhaps a relative or family friend—would nominally be the independent consultee, although those two people required an advocate to take their case forward. That will be a common situation, as it is not always the case that a close relative is sufficiently familiar with the system to know when it is possible to ask about what else is available, or to know what else is available.

Knowledge is powerful in advocacy—knowing where the parameters are with regard to what is a reasonable acceptance or when to go that bit further to identify whether there are other options. The novice independent consultee—for want of a better term—who might be the closest relative might not have that knowledge. How would that fit into things? How would they get that expertise into the equation?

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

In the strict sense of the term at the moment, the hon. Lady is right. It would be expected that that person's relative would be consulted. At the same time, advocacy services may be available that do not necessarily involve an independent consultee. That comes into a wider discussion about advocacy. Clause 39 considers other groups and whether there are

circumstances in which we ought to extend the role of the independent consultee. I shall come back to that point.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

Earlier, the Minister had an exchange with the hon. Member for Blackpool, North and Fleetwood, who made a fair point and asked, ''Why not take on board the issue of advocacy?'' The Minister seemed to be running the argument that advocacy had become so diffuse and ill defined that it was impossible to capture and put in the Bill. However, surely the task of the Government is to capture it, put it in the Bill and give it a clear definition. Earlier, I proffered a definition on behalf of the Disability Rights Commission. There is an emerging consensus on what advocacy is and what the standard should be. Surely after seven and a half years of various attempts to get a definition, the Bill could achieve one.

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

That is exactly what we are trying to achieve through the consultation that we will undertake to identify the independent consultee's role. Later, I shall come to how we are expanding that role. As I said, it is not true that independent advocacy will be overridden or downgraded. I feel strongly that this could fit in well and perhaps help to secure independent advocacy services.

Sitting suspended for a Division in the House.

On resuming—

Ms Winterton: As I hope I have been able to explain, the role of the independent consultee is a new service, which should build on the skills of independent advocates. It will not undermine their work. We have decided that it would be better to rename the service to avoid confusion between the independent consultee and the independent advocate.

The hon. Member for Sutton and Cheam asked how many people will be covered by the independent consultee and what will be the overall cost. The start-up costs of training and commissioning will be about £6.5 million for England and about £0.4 million for Wales. The running costs will be similar.

It is hard to say exactly how many people will be covered, but we expect that about 64,000 decisions a year will require the support of an independent consultee. However, we have provided through clause 39 broad regulation-making powers so that we can extend the use of the independent consultee beyond the unbefriended.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

I am sorry to interrupt, but the Minister's comments on clause 39 present an opportunity not to be missed. I welcome the fact that the clause presents scope for widening the service to those who may well have friends, carers or relatives, but clause 39(2)(a) raises another matter. It provides that the regulations may

''prescribe circumstances (different to those set out in sections 35, 36 and 37) in which advice must be sought from an independent consultee''.

Given the somewhat wider role that we are now discussing, if what is set out in the Bill relates solely to advice, how will the Minister's intention be carried out in practice?

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

We are now dealing with the question whether there are other decisions, outside long-term care and medical care and treatment, on which the independent consultee might be approached to give advice. We are considering two matters: the number of people who might be covered and the type of advice that might be relevant.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

I gave an example in a previous sitting of an adult with an autistic spectrum disorder; it would not be sufficient to place that person in independent, albeit sheltered, accommodation, unless a package of support was also provided to enable them to cope with day-to-day living under that roof. Is that what the Minister is thinking of in her example—a case where another, ancillary matter arises, related to the decision to rehouse someone?

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

In terms of the independent consultee in that particular instance—if the person had no family, friends or carers—that would almost become part of the best interests recommendations. We are considering not only immediate wishes and feelings, but the circumstances in which a move might be made and the options that might be available—what, in the view of the independent consultee, would be in the person's best interests if there were a choice between one place and another? A decision could be reached that way.

When we started to develop the policy on the independent consultee, we wanted to consider a broader range of groups and situations. We wanted to think about cases in which P has no ascertainable wishes or feelings, but is compliant; those in which the action appears to be contrary to P's wishes and feelings; and those in which there is a family dispute over the best course of action. It proved almost impossible to define objectively when to involve the independent consultee. It seemed as though the doctor or the social worker would be deciding when to bring in an independent consultee, which would negate the whole point of the safeguard.

We want to consult further on whether there are others who lack capacity and might benefit from having an independent consultee, or whether there are other circumstances in which it might be possible to extend what we have in the Bill. We can do that under the powers in this clause. We will work closely with stakeholders on that. We want to ensure that any regulations we develop are ready to dovetail with implementation in 2007.

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

I have looked again at clause 39, which refers to expanding the role in relation to persons who lack capacity. Will the Minister consider also the circumstances of a dispute about whether a person lacks capacity at a particular time to ensure that the

drafting covers such arguments over demarcation and that the person in that borderline situation may have adequate support?

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

I am not wholly sure whether that would be the right circumstance in which to have an independent consultee or whether such a case would go to the Court of Protection, which would decide whether it wished to employ an advocate to find out somebody's wishes or feelings. However, I take the hon. Gentleman's point.

We also want to consider, in the consultation that I mentioned, whether—and how—independent consultees could be involved in annual reviews for people who have no friends or family as well in cases in which people are changing their accommodation. We could probably include the independent consultee in the provisions for local authority guidance. We shall consult on that.

Let me turn to the amendments. As well as responding, I shall speak to the Government amendments. Amendment No. 170 would rename the independent consultee an independent advocate and link the function to the maintenance of the principles set out in clause 1. The Bill already makes it clear that the independent consultee must adhere to those principles; they underpin the Bill and everybody should follow them. We certainly expect the independent consultee to act with full regard to them.

We also believe that the amendment could create a great deal of uncertainty about when an independent consultee should be brought in. We have tried to define clearly when the independent consultee—

Sitting suspended for a Division in the House.

On resuming—

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

There is better news for the second aspect of the amendment. We are certainly very sympathetic to the intention behind some changes proposed by the hon. Member for Sutton and Cheam. We have received quite a lot of feedback that the role of the independent consultee might be perceived as being primarily to support the decision maker, and we understand stakeholders' views on that. We intend the core function of the role of the independent consultee to be to represent the person's wishes, feelings, beliefs and values, but we accept that the wording of the independent consultee clause does not convey that.

The independent consultee does not decide what is in the patient's best interest—that is the role of the NHS body or local authority decision maker—and is not restricted to interpreting the patient's feelings if other relevant information exists that should be brought to the table on the patient's behalf.

We are therefore satisfied with the word ''advice'' in clauses 34 to 37, and that the role is advisory, but we are certainly sympathetic to the belief that the current wording does not properly reflect the intended role of the independent consultee. We have therefore decided to introduce Government amendments Nos. 224, 227

and 233 to clauses 35 to 37 to clarify the intended role by referring back to clause 4(5). That emphasises the fact that the role of the independent consultee is not simply to advise the decision maker on a person's best interests, but is also to represent their past and present wishes, feelings, relevant beliefs and values.

Amendments Nos. 171 to 174 would also change the title of the independent consultee to independent advocate. I have already explained why we believe it to be important to have the new title of independent consultee to cover the very particular role that we see them playing—using, as I have said, many skills used by advocates, but with new and innovative ones.

Amendment No. 175 would change the requirement for the independent consultee to give advice to a requirement to give support to the person who lacks capacity. Again, this relates to a fear that the independent consultee may be seen to be more on the side of the decision maker than on the side of the person lacking capacity. We intend to amend the Bill to make it clear that the independent consultee represents the incapacitated person as well as advising the decision maker.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

Will the Minister say whether the policy intention is that the independent consultee will be equidistant between the interests of the individual P and the decision-taking body, or will the Government amendments move the independent consultee closer to P than hitherto?

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

We have always seen the independent consultee as being ''on the side'' of P. That is the whole idea. We want the independent consultee to be able to advise the decision maker on the result of their interaction with P and on their inquiries about past wishes and feelings, but we also want the independent consultee to be able to advise on the available options. If the decision maker goes against the advice of the independent consultee, they will have to explain why they have done so. The independent consultee could challenge any decision through the courts if they wished to do so, so I believe that the Government amendments speak for themselves. I do not want this process to be seen as a battle. The idea is to provide someone who gives assistance in this scenario, not someone who creates conflict.

Amendment No. 176, tabled by the hon. Member for Sutton and Cheam, would ensure that, having considered the views of the independent consultee, the decision maker does not have to proceed with the proposed act or decision that is under review.

The hon. Gentleman would also like to ensure that the person lacking capacity is not obliged to accept the assistance offered by an independent consultee. As I explained, the Bill states in clauses 35, 36 and 37 that when the independent consultee gives advice to an NHS body or local authority, that advice must be taken into account. If the decision maker is not persuaded to change his views about the best interests of the person who lacks capacity, mechanisms will be in place to ensure that he explains why he has not taken

that advice. If necessary, the decision can be challenged. Nothing in the Bill forces a person who lacks capacity to accept the assistance offered by the independent consultee. Rather, the emphasis is on the fact that the decision maker has to bring in an independent consultee when serious decisions have to be made.

Government amendments Nos. 224, 227 and 233 are intended to clarify the role of the independent consultee. We have listened to the stakeholders' view that the current wording gives the impression that the role might primarily be to support the decision maker. That is not our intention. We expect the independent consultee's core function to be to represent the person's wishes and feelings, beliefs and values. However, that is only one part of assessing best interests. For the independent consultee to have more influence on events in favour of the person who lacks capacity, we want that role to be broader. Hence, our clarification of the position with the Government amendments.

New clause 3 would require the ''appropriate authority'' to provide advocacy services when decisions were made in relation to care programmes and residence. It would also ensure that the appropriate authority kept full records on how those decisions were reached. However, there are several problems. The provision lacks clarity and it is not clear how it should relate to the rest of the Bill. It raises wider questions about advocacy. I refer to my earlier remarks about why our approach is more appropriate in such circumstances.

The new clause seems to cover all decisions about residence and it could apply to all decisions on care assessments involving people who move into hospital and residential care. It could even apply to decisions on whether people should stay in their own homes. It could also involve private family decisions about moving elderly relatives into residential homes.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

The Minister says that this could involve decisions about whether someone stays in their own home. Yes it could, if the person who lacks or has fluctuating capacity has been cared for in the long term by a family member who subsequently dies and leaves him on his own. In such circumstances, surely there is a debate to be had about putting in the necessary services to provide support to enable the person to continue living in his home. Having good documentation and good processes are also very relevant. I am not certain that the Minister, in saying what she did, is doing that group of people a service.

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

Certainly, in the circumstances outlined by the hon. Gentleman, in which a person has been left alone and is therefore unbefriended, and a decision has to be made as to whether that person should move to long-term residential care or stay in their home, that is when an independent consultee would be brought in. The proposal captures too broad a range of situations. As I said, we intend to consider more widely the role of the independent consultee.

New clause 4 would place a duty of care on local authorities to investigate and take action where necessary to safeguard and promote the welfare of adults who lack capacity when they are likely to suffer harm. Obviously, the protection of vulnerable adults is vital, particularly for those who lack capacity, but I am afraid that we cannot accept the new clause.

Health and social care professionals such as doctors and social workers already have a duty of care to investigate cases of potential abuse and to refer cases to the police where appropriate. Section 47 of the National Assistance Act 1948 deals with people who cannot make arrangements for themselves and are living in unsanitary conditions. In such cases, local authorities may apply to the courts for an order for the person to be removed from his home to a place to be looked after.

Over and above that, the Government are taking action to protect all vulnerable adults, including those who lack capacity. It would be wrong to place a duty of care on local authorities only in cases involving people who lack capacity. I draw the hon. Gentleman's attention to ''No Secrets'', which was groundbreaking statutory guidance on the protection of all vulnerable adults. As he will know, it set out for the first time a national definition of abuse and covered psychological abuse, financial abuse, discrimination and neglect.

Although we respect the aims of the new clause, we believe that substantial action is already being taken to protect vulnerable adults from harm. It would not be appropriate to impose a statutory duty in the Bill.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

I am grateful to the Minister, who has been very willing to give way when speaking to amendments in this important debate.

Given that the Bill contains a new criminal offence of neglect, why has it been deemed inappropriate to create a duty that is almost the other side of that criminal offence—the duty to investigate? How can the offence sit comfortably in the Bill, but not the duty? There seems to be an imbalance in that argument.

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

As I said, there is a duty to investigate under other legislation. The difficulty with new clause 4 is that it would confine the duty to local authorities, rather than extending it elsewhere.

I turn to new clause 27, which my right hon. Friend the Member for Coatbridge and Chryston tabled with the intention that it should replace clause 34. The first two subsections mirror amendment No. 170, which I have already covered. There are two other differences between the proposed new clause and clause 34. First, the new clause would extend the regulation-making power on the appointment of independent consultees to include recognition of existing independent advocates. That is unnecessary because clause 34 already places a duty on the Secretary of State and the National Assembly for Wales to arrange the appointment of independent consultees. That may include recognising existing independent advocates, provided that they meet the specific appointment criteria.

Independent consultees will need to be provided to agreed standards and delivered in a consistent way. They will need to be appropriately trained and qualified, as set out under the regulations. I emphasise that people who currently provide services as independent advocates may be recognised as independent consultees, but it is important that they meet the appointment criteria to act as an independent consultees under the Bill, which we shall set out in regulations. We want people to have specific skills and training to carry out the new function, but we shall not rule out independent advocates. The amendment would also make the regulation-making power in respect of the function of independent consultees relate to new clauses 2 and 3.

I have already explained why I hope that the hon. Member for Sutton and Cheam will not press new clause 3. We shall consider new clause 2 when we discuss clause 45. I completely understand the anxiety voiced by my right hon. Friend the Member for Coatbridge and Chryston to make sure that the system works to the benefit of people without capacity. I am confident that, by continuing to work with stakeholders, we can devise a robust system that will take all the best aspects of advocacy and build on them. Having given my response, I hope that the hon. Member for Sutton and Cheam and my right hon. Friend will not press the amendments and new clauses and that the Committee will support the Government amendments.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

I start by thanking the Minister for a detailed, thoughtful and substantial response to the group of amendments, albeit protracted not only by various interventions by members of the Committee, but by activities in other parts of the House. It has been a useful and genuinely bipartisan exchange about advocacy, how it can be made a part of the Bill and how it will fit into the decision-making arrangements. At I said at the outset, my amendments were intended to probe, goad, encourage, nudge and persuade the Government to think further. The Minister has said today that there is a door open to further consultation, and that is to be welcomed, but when does consultation stop? When will it result in a change of mind, if the whole weight of opinion in the consultation is for something different? The message that I wish to leave with the Minister more than anything else from our exchanges is that none of the organisations that have an interest in the Bill, particularly in advocacy, will act as an advocate for the Government in respect of the independent consultee. That is a difficult position to start from when trying to make the policy viable and workable.

The Minister made some useful comments about how the independent consultee would work. She said that their role was not so much a matter of advocacy, but advocacy plus. I am sure that that phrase will now be developed—perhaps it could even be retitled ''new advocacy'' or ''modernising of advocacy.'' One foresees a series of rebrandings. The Minister said herself that it was better to rename the service, which implies that the Government are genuinely grappling

with the fact that there is something out there called advocacy, which has evolved and developed piecemeal; there are leaders, such as the service in Blackpool, North and Fleetwood, who have a clear idea of what advocacy is and how it works, and others who do not. Rather than attempt to define clearly in legislation what they mean by advocacy, the Government have chosen to use a different label and to define that instead, and so avoid all the complications and difficulties of defining advocacy. That ducks the issue, and if we duck it, it will come back time and again as a problem.

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

Before the hon. Gentleman moves on from labels, will he reflect on the fact that our concern is that we might get ''Advocacy Lite'' which might end up not being advocacy at all?

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

The hon. Gentleman has added a label to which I shall certainly make reference in future; we can call the service ''Advocacy Lite'' or ''Advocacy Less,'' or whatever we want. Today there was yet another story about the claims put on the packaging of processed foods; we have to be careful about label, and what it really says about what is inside. It sounds as though content behind the label is being made slightly wider in order to garner support for what is currently being described as an ''independent consultee'' and make people feel more comfortable with it. However, on balance I still do not think that that is the right way to go.

As I said, there may well be a role for a consultee, perhaps rather like that of the guardian ad litem in the child protection system, but it is a separate and different role from that of advocate. I am not yet convinced by what the Minister says. There is a tension in conflating an advocacy role—being the person on P's side, his friend—with a role in which one has to step back and give advice in a detached way to the decision maker. The Minister says that we will have to disagree, but I genuinely do not see how those two roles can sit together comfortably and effectively. Although a person can use some of the skills set of an advocate, he can never be an advocate once he has stepped outside the role of being on the side of the individual and into a different role in which he gives his own opinion and advice to another party.

I will not go on much longer, and I am sure hon. Members will be pleased about that. I end by reflecting on something that the hon. Member for Blackpool, North and Fleetwood said. She has been an MP since 1997 and, in common with a number of Labour Members, has advocated advocacy in many ways, including through amendments and in Committees. On each occasion, the Minister with the job of responding to those amendments has said, ''This is not the time'' or ''This is not the Bill; we should deal with this under another Bill.'' When will it be time to put clearly into legislation the right to advocacy and to say what advocacy is, so that there is a clear statutory framework in which advocacy operates? I still hold the

view that the Bill is the right time to deal with the issue. I would like to return to the matter on Report to see how the thinking is evolving.

Mr Tom Clarke (Coatbridge & Chryston, Labour)

I too thank my hon. Friend the Minister for such a comprehensive response to our debate. I think that we all agree that it was an extremely good debate, and she has responded in kind. I also thank her for correcting me on the definition of capacity; she was right. I meant to say that an independent advocate is vital to someone who may lack capacity—rather than just to someone who does lack capacity. There is a significant difference. An independent advocate can play a vital role in helping a person whom doctors, social services, or even parents say cannot make decisions for themselves. Advocacy is about empowerment, and that is what we are seeking to achieve. As my hon. Friend knows, I hope to address the issue in discussions on later amendments, because, as we have all been saying, the issue will not go away.

Having said that, I am disappointed with the tone of my hon. Friend's response. I am sorry that she could not accept my new clause, because it was reasonable. The hon. Member for Sutton and Cheam made an important point. The response to advocacy since I entered Parliament has been that Ministers of all political complexions say, ''This isn't the time to do it,'' or ''This isn't the right Bill to do it in.'' However, when the Disabled Persons (Services, Consultation and Representation) Act 1986 went through the House, advocacy was included. I hope that my hon. Friend the Minister does not mind the comparison, but when the right hon. Member for South-West Surrey (Virginia Bottomley) introduced the National Health Service and Community Care Act 1990, she said that we did not need what was in the 1986 Act, because the 1990 Act embraced the concept of advocacy itself, but I have not seen any evidence of that. We are still fighting; advocacy is not there. My hon. Friend has sought to persuade us that we can have a national framework for consultees, but if that is so, we can have one for advocates.

If I understood my hon. Friend, she was saying that she is offering advocacy plus and tying it into people working for social services departments. If I did not understand correctly, I am happy to give way.

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

I was trying to say that some advocacy services can be commissioned by social services, and that would still be possible given what has been proposed for the independent consultee services. The people involved are not necessarily social workers, but they might be part of organisations commissioned by social services to provide advocacy services.

Mr Tom Clarke (Coatbridge & Chryston, Labour)

I am grateful to my hon. Friend, but I still feel that there is not the necessary independence to enable advocates to do their job as we would expect them to.

There have been too many false dawns, which is perhaps why we are a little reluctant to accept even my hon. Friend's delightful assurances. Speaking for myself and, I suspect, for others, I was not really convinced by the Government's arguments. The case

they advance poses more questions than it answers. We will need more information on the role of the consultees. I do not think that to create a new service would be beneficial and, as we have already seen this afternoon, there is tremendous scope for confusion. Perhaps, as we deal with other amendments—especially those I hope to move myself—the position will become clearer. At this point, however, I say with great sadness that if she accepted the principle of independent advocacy, my hon. Friend the Minister would save herself a lot of trouble. I know that she will go higher still on the ministerial ladder, so her acceptance would also save her successors a lot of trouble. Above all, if she did so, the Committee would be much happier than it is.

In that spirit, I bow to what my hon. Friend said, and I will not press the new clause.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment No. 46, in clause 34, page 19, line 18, at end insert—

'(c) as to the conduct of independent consultees'.

Mr Alan Hurst (Braintree, Labour)

With this it will be convenient to discuss the following: Amendment No. 47, in clause 34, page 19, line 26, leave out 'so far as practicable'.

Amendment No. 48, in clause 34, page 19, line 28, leave out subsection (5).

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

In the spirit of the previous group, the amendments are designed to examine some of the other appropriate safeguards, although discussion of them need not take anything like as long and they are somewhat different.

Amendment No. 46 picks up on points that the Minister has already made about a national framework for the independent consultee service that would require professional standards and a measure of appropriate training. The word ''appointment'' is used in subsection (2). The exact status of such consultees is not quite clear: they might be salaried employees, or retained and brought in as appropriate, or on contract for a particular case. There may be a local advocacy service on which the relevant body might wish to draw. Will the Minister explain that a little?

I am conscious of a tension. If the Government—for effectively it will be they—employ independent persons to carry out an independent function, it will be difficult to shackle them by saying, ''We do not like the conclusions that you have come up with.'' I think that the appropriate analogy is with judges or stipendiary magistrates. Sadly, people sometimes fail to do their job—they might fail to operate within the regulations or guidelines set by Ministers, or be delinquent in some other way. The amendment's purpose is to probe the Minister's intentions. Will there be provision for striking such people off the register or for not using them again? In extreme cases, will there be provision for taking some sanction against them if they behave in a disreputable or totally unacceptable way?

The point of amendment No. 47 is that because a principle is prayed in aid—the principle of independence from any person responsible for the act or decision—it is a mistake to qualify that principle by the words ''so far as practicable''. A principle is a principle is a principle, and we are discussing the principle of independence. It might conflict with another principle—there might be another reason or consideration in mind—or with a practical situation, in that there is no independent person. However, I do not think that we should qualify or muck about with the principle in anticipation of such a conflict. I simply suggest to the Minister that the principle be unqualified and that if circumstances take over, so be it.

Amendment No. 48 would delete subsection (5), the financial provision in italics. My intention should be pretty clear from what I said during earlier discussions, but I say it again before Ministers try to have fun with it. My intention is not to remove the source of any money that might need to be applied to the independent consultee service, but to probe the implications. I said to the Minister that I had noticed that the cost would be £6.5 million. She said helpfully that she anticipated 64,000 cases a year—more than I did—and that was before she extended the boundaries. I might have misread, or my mathematics might be defective, but having re-examined the figures, that looks like £100 a case. That is not a lot for advocacy; one does not get a lot of legal advice for £100 these days. I am sure that the Minister will say that people could do more than one case at a time or could consider cases in parallel. However, I ask her to reflect on what I have said and to assure the Committee about the scale and professionalism of what is proposed. I ask for her assurance that the principle will be untrammelled even if, sadly, the reality has to kick in from time to time. If she gave such assurances, that would help progress.

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

I think that I referred to 64,000 decisions, not necessarily 64,000 individual cases, but that that could provide for up to 64,000 cases. I thought that it would be useful to state that up front.

In amendment No. 46, the hon. Member for Daventry (Mr. Boswell) is trying to ensure that independent consultees operate to high standards of conduct. They have an important job, and we want them to have agreed standards and appropriate training and qualifications. The Bill includes a regulation-making power so that we can set out some of those conditions. However, the service is a new and innovative policy. We want to consider its implementation carefully and to ensure that we consult widely with stakeholders on how the scheme will operate. I assure the hon. Gentleman that during that consultation we will explore the best way to draw up standards of conduct. It is likely that those standards will be covered in the appointment regulations as the standards that independent consultees will be expected to maintain in order to keep their appointment.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

I think I have missed something. The Minister is now talking about regulations and standards, and what she is describing sounds like some form of accreditation. That is fine, but earlier in this debate it was mentioned that a close relative might be the independent consultee. I cannot see how we can have a two-tier system. I think I must have got that wrong. Can the Minister explain?

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

The hon. Lady might have misunderstood what I said about the independent consultee. I think that she is referring to a close relative who might feel unable to make the decisions. I said that under clause 39 we will look at wider situations where an independent consultee might be appointed, not that it would be a close relative. If a close relative were going to be appointed to make decisions, it would be more likely that that would be done through the Court of Protection.

In amendment No. 47, the hon. Member for Daventry is trying to ensure that independent consultees are truly independent. We agree that the people who provide those services should be independent of the health and social care professionals making the decisions. That is why we have given them the name of independent consultee and why the principle of independence is recognised in subsection (4). However, we do not want to be too prescriptive. There may be cases in which a person had recently been employed by a local authority, which subsequently commissions their services as an independent consultee; or a person may be carrying out work for a local authority as a consultant on unrelated business. It is important that we do not impose restrictions in legislation so that it becomes impossible for such appointments to be made.

In amendment No. 48, the hon. Gentleman is trying to create a situation in which the independence of independent consultees replicates the position of many existing advocacy services that rely on volunteers. The Government wholeheartedly welcome the involvement of volunteers in organisations that support vulnerable people. We have provided funding for that in the past and will continue to do so. However, we have made it clear that in the case of an independent consultee it would be wrong for a statutorily required service to depend on volunteers. In view of the special role that we want the independent consultees to take, it might be difficult for them to obtain the ongoing training and skills that will be required.

We therefore believe that there needs to be provision for payment. During implementation, we shall build on measures such as the service level agreements that have been agreed between NHS providers and agencies that might be commissioned to do advocacy work. We want to guarantee that independence, and the operation of independent consultee services. I hope that, given those reassurances, the hon. Gentleman will feel able to withdraw his amendment.

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

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

I beg to move amendment No. 221, in clause 34, page 19, line 34, leave out

'examine any record of a prescribed kind which'

and insert

', at all reasonable times, examine and take copies of—

(i) any health record,

(ii) any record of, or held by, a local authority and compiled in connection with a social services function, and

(iii) any record held by a person registered under Part 2 of the Care Standards Act 2000 (c.14),

which'.

Mr Alan Hurst (Braintree, Labour)

With this it will be convenient to discuss Government amendments Nos. 112 to 114.

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

These are small but necessary amendments to guarantee independent consultees, the public guardian and Court of Protection visitors access to all the information that they need to carry out their functions.

We want to ensure that independent consultees have access to the relevant records. Amendment No. 221, by requiring that an independent consultee should have access to health and social care records, will bring the provisions for independent consultees in line with those for Court of Protection visitors and the public guardian. It also provides for access to records held in private care homes that are not health related—for example, details of what somebody might like to eat—to which access might be required. Without access to the relevant records, it might be difficult for an independent consultee to fulfil his functions effectively, both in representing the wishes and feelings of P and in advising decision makers.

In addition, the public guardian and Court of Protection visitors, either when carrying out their supervisory functions or when reporting to the Court of Protection, might need to examine the health and social care records of those who lack capacity. The Bill already makes provision for that, but we have realised that the provisions do not allow them access to records held by private care providers unless they relate to health. A private care home might well be happy to allow Court of Protection visitors to examine residents' records. However, as the Bill now stands, they would have access only to social care records that are held by a local authority, not those held by a private care home.

Amendments Nos. 112, 113 and 114 are straightforward in that they allow visitors and the public guardian access to all records held by people registered under part 2 of the Care Standards Act 2000. That will therefore apply to records held by any registered care home or domiciliary care agency.

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

I have some reservations about the creeping growth of the exchange of information within Government and between agencies related to the Government. It would be inappropriate to rehearse those at length now, but they lead me to ask the Minister one question by way of introducing a slight marker in the debate on this issue. Will she confirm that any person, particularly an independent

consultee, who had access to sensitive material that they would not otherwise have, would be bound by the same duties of confidentiality and could not, for example, put it in the newspapers?

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

I can give the hon. Gentleman that assurance.

Amendment agreed to.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause, as amended, stand part of the Bill.

Question agreed to.

Clause 34, as amended, ordered to stand part of the Bill.