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

I beg to move amendment No. 53, in

clause 40, page 22, line 4, after 'must,' insert

'after consulting with such persons professional and lay as seem to him to have an interest,'.

Mr James Cran (Beverley & Holderness, Conservative)

With this it will be convenient to discuss the following amendments: No. 146, in

clause 40, page 22, line 4, after 'practice', insert

'in suitable formats for the information and guidance of P and of any independent advocates assisting P and'.

No. 54, in

clause 40, page 22, line 12, at end insert—

'(ee) with respect to the information to be compiled and retained by persons specified in this section in connexion with their duties under this Act, and'.

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

As we move to this part of the Bill, I should say that in no sense do I regard the codes of practice as miscellaneous or supplementary: it is essential to the delivery of the Bill and the change in culture that we all seek that they should be taken seriously. It is reassuring that Ministers have referred to them in their deliberations. They may not be as legally binding as the Bill itself, but they are an important part of the delivery process. I have no problem with them; I simply emphasise their importance.

I do, however, have one little problem: I notice that Ministers have referred sometimes to codes of practice and at other times to a code of practice. We have a draft code of practice before us. There should be horses for courses. We probably need a collective document, which would be ''the code'', but that would not be sufficient unless it contained sub-codes targeted at particular situations, or at classes of people who may have occasion to refer to the code. In correspondence that I have seen, there has been some suggestion that the code is for professionals such as local authority decision makers and NHS professionals, and that if it goes to Auntie Flo, who happens to be a carer or the donee of a lasting power of attorney, she will not have the firepower or stamina

to wade through it all, and may not be used to the language in it.

The use of multiple formats—a possibility touched on in an amendment that I did not table, but the spirit of which I find congenial—is part of the issue. If the Minister's legislation is to succeed, we need to ensure that it is appropriate for people of all levels. The code should be in text, but there should be other ways of delivering it—for example, through training programmes. When I read the Public Guardianship Office report, I was interested to see that there have been a number of open days or training days, on which people could come and have part of their work explained to them. That is the beginning of some positive good practice—but I am conscious that we are discussing a group of amendments, and I do not want to go on at length about this subject, as we will return to it.

It would not be appropriate in Committee to rehearse the role or otherwise of the Lord Chancellor—a great person in the land, and a role that I hope will continue as an office, if not a person—nor to be derogatory about the likelihood that he would take advice from other people. Of course he would, and the amendment merely reinforces the point that—[Interruption.]

Sitting suspended.

On resuming—

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

There have been few anecdotes in the Committee so far, as our debates have been too serious, so I shall share my memory of the last occasion when there was an interruption like that. I went to Berlin for the day to speak to political scientists, and at the very beginning of my speech, a power hammer—not, as in this case, an electric drill—started up. I had two options—to walk out in a huff and be very pompous about it, or to say, as I did, ''Well, I knew Alastair Campbell was good, but I didn't realise he was as well targeted as that.''

As I was saying, we are not attacking the Lord Chancellor or suggesting that he would not want to consult, although some past Lord Chancellors—I will not be specific—have been reluctant to do so. It is terribly important that there should be consensual involvement, and that the code is not seen as something that is produced pro forma, or is only for professionals. The code and the supporting information and training should be accessible to all persons who may need to use it.

Amendment No. 54 would add a specific tiret to the provisions of the code, or codes, in relation to information, and I shall emphasise two elements of it: first—this relates to a point that I have already made—is the importance for everyone involved of having a proper audit trail of the decisions that have been taken, which would involve keeping good records. There have been cases in which local authority records have been, or have become,

defective, which is regrettable. It is important that we know what we are doing.

Secondly, and more positively, this is not simply a matter of being able to prove that people have failed ex post, but of encouraging them in the good practice of keeping relevant information and understanding what is relevant to the continuous assessment of mental capacity and of the person's best interests. They should be encouraged to build up information and have it available, adding any relevant matters—for example, the opinions of carers and neighbours and so on—and to keep it on file.

I am conscious that it is always difficult to manage information if it gets overextended and out of hand; it is also possible that some information may be informal, and may consist of gossip, or may include elements of confidentiality that are more sensitive. But the principle that I set out in the amendment is that information is cardinal to the success of the Bill, as is the communication of codes and good practice. I hope that the two will come together and that people fully understand whatever is required under the code, including their important obligation to access information, to record it where appropriate, and to be able to reproduce it in the event of any subsequent dispute about decisions that they may have taken.

Mrs Joan Humble (Blackpool North & Fleetwood, Labour)

I congratulate the Government on the draft code of practice. The Joint Committee was clear that it was vital that codes of practice, in so far as they could be finalised, should be produced alongside the legislation. Secondly, it is important to endorse what the hon. Member for Daventry said about the need for accessible and appropriate codes for professional and non-professional carers.

P should also have access to information about the codes of practice. I urge my hon. Friend to produce information for carers in an easily accessible leaflet form, which could be circulated at day centres and the like. Information should also be produced in a language and using methods accessible to P, so that he or she knows what the issues are as well.

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

I shall speak to amendment No. 146. Clause 40 deals with the production of codes of practice to guide on the one hand those who might assess whether someone has capacity, and on the other those who might exercise powers on behalf of people who have been assessed as lacking capacity.

Clause 40 (1) lists all those to whom the code might apply—for example, donees of lasting powers of attorney, deputies appointed by the court, people providing care and treatment and other examples. There are two glaring omissions from that list. First, it omits independent advocates—or consultees, to use the Government's preferred terminology. We have debated them at great length, in relation to clause 34, at other times in the Committee and on Second Reading. Given the amount of attention that we have paid to the role of independent advocates or consultees, it seems strange that they are left out of the list in subsection (1). It might be argued that it covers the matter with a catch-all phrase. However, it

seems to me that it would be better to specify a reference to the independent consultee or advocate.

The subsection's second omission is of the individual at the centre of the Bill, P, whose capacity will be assessed and who, if they are assessed as lacking capacity, will have key decisions about their life and treatment passed to other people to make on their behalf. It seems entirely logical and necessary to the Bill to require that the codes of practice should be produced in suitable formats for the information and guidance of P. Both previous speakers have referred to that.

The delay in providing documents such as ''Valuing People'', and later ones, in accessible formats has rightly stirred controversy among people with learning disabilities. As has been established in recent years, the move towards using such formats more often and extensively has shown that P's capacity can often be enhanced. Accessible formats and appropriate support can, to a degree, overcome what would have been automatically and rather paternalistically judged as a lack of capacity.

Amendment No. 146 would not only specify the use of suitable formats in the Bill—the Minister might argue that it is always assumed now that suitable formats will be used—it would reinforce the centrality of the Bill's whole purpose: to recognise, to the maximum possible extent, capacity on the part of P, before consideration even turns to lack of capacity.

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

I am back, taking over from the Minister of State, Department of Health, my hon. Friend the Member for Doncaster, Central (Ms Winterton). I cannot claim to have the eloquence and charm that she brings to the Committee, but all I can do is try my best.

We have mentioned the code of practice many times during Committee sittings, and I am grateful for what hon. Members have said about the fact that we published the draft code—on 9 September, I believe. That document has added to our debates. Amendment No. 53 would insert a provision in clause 40 requiring the Lord Chancellor to consult lay and professional people before preparing and issuing a code of practice. I can reassure the hon. Member for Daventry by referring him to clause 41, which already covers this important point by saying:

''Before preparing or revising a code, the Lord Chancellor must consult''

anyone he thinks appropriate. I assure the hon. Gentleman that the appropriate people will include lay and professional people. I hope that he is satisfied with that.

Amendment No. 54 deals with clause 40, which says that the code must provide guidance on advance decisions and any matters that the Lord Chancellor thinks are appropriate. We discussed that subject when we talked about advance decisions, and this amendment would add a requirement to produce guidance on compliance and retention of information in connection with their duties under the Bill by people specified in clause 40. I reassure the hon. Gentleman

that we have not overlooked the importance of making it clear when records should be kept, and the draft code contains various references to that.

The hon. Gentleman has returned to this matter on a few occasions, and I remind him gently that paragraph 5.14 deals with an assessment of ''capacity and best interests'', paragraph 6.29 explains the duty of a financial attorney to keep accounts, paragraph 7.50 talks about the duty of a financial deputy to keep accounts, and paragraph 13.20 is about the retention or deletion of information obtained about someone who lacks capacity. As we continue to develop the code, further paragraphs may deal with the important business of record keeping and other things. I agree with the hon. Gentleman that this is an important area, on which more guidance might be helpful.

Paid carers and health and social care professionals could usefully be reminded of the need to keep records when important decisions are made on someone else's behalf, not least because they can be challenged about a decision if it comes to court—and if that happens, they might find it helpful to have kept a record about the decision-making process. I undertake, therefore, to give serious consideration, once the draft code is formally consulted on, to whether it would be useful to have a separate section in the code on collection and retention of information, or whether there is a need to add to the existing references to this matter. I am grateful to the hon. Gentleman for tabling the amendment, but given what I have said, I hope that he will withdraw it.

Amendment No. 146 would require the Lord Chancellor to produce a code of practice in a suitable format for people lacking capacity and for independent advocates. Of course, I appreciate that the hon. Member for Chesterfield wishes to remind us that people who lack capacity should not be overlooked in the code. It is also right that they should know what sort of behaviour they can expect from those who care from them; my hon. Friend the Member for Blackpool, North and Fleetwood mentioned the role of the independent consultee in that regard.

The hon. Member for Chesterfield will know that my Department is already quite sensitive to the issue, and that is why we published an easy-to-read version of the guide to the Mental Capacity Bill. It condenses the key aspects of the Bill into 21 pages. On the Department for Constitutional Affairs website, he will see a whole range of publications aimed specifically at those with learning disabilities. Tapes and CD-ROMs are also available. We want to continue that good practice and do exactly what my hon. Friend the Member for Blackpool, North and Fleetwood said, but we have not done that yet with the draft code, for the very reason that it is a draft. It is a work in progress, and it would not be right to go down that road at this stage.

As for existing advocacy groups, it is difficult to take the issue forward as the hon. Member for Chesterfield suggests, partly because there are so many different groups. He is aware that there are many types of advocate, such as citizen, peer, and crisis. We have talked about that; there are lots of

different groups, including self-advocacy groups. It would be difficult to speak to all of them in the code, and even if we could, I suspect that some would not want to listen, because they prize their independence so highly.

I also remind the hon. Gentleman that the only statutory definition of independent advocacy is in the Health and Social Care Act 2001, but that relates to a particular form of advocacy—the advocacy in the independent complaints advocacy services, of which I am particularly fond, as I set them up when I was a Minister in the Department of Health. Those issues cause us some difficulty, and I hope that, on the basis of what I have said, the hon. Member for Daventry will withdraw his amendment.

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

I am grateful to the Minister for his response. It was, on the whole, encouraging and consistent with the Department's initiative in publishing the code, which has been valuable to the Committee. There is no doubt about his good intentions.

The only slight warning that I offer the Minister is that there are two layers of potential misinterpretation. The first is the transition from lawyerly language to layperson's language. That might, for example, might centre around the use of the word ''reasonable'', which may mean something different to the Minister, as a

lawyer, from what it means to Committee members such as I, who are not lawyers.

Secondly, there is the transition to a version for people with learning difficulties who require further abridgement. From the occasions on which I have attempted to distil information such as election material, I know how difficult it is to do, but also how important and useful it sometimes is in clarifying concepts. I encourage the Minister to carry on with that, and to make sure that what is proposed is accessible, both in the language used and in the convenience of the format in which the material is assimilated. We encourage him to do that, and will welcome it when he does. In light of the assurances that he has given, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 195, in

clause 40, page 22, line 14, at end insert—

'(g) for the guidance for people acting as independent advocates for the purposes of sections 35, 36 and 37.'.—[Mrs. Humble.]

Question, That the amendment be made, put and negatived.

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.