Clause 40 - Codes of practice
Mental Capacity Bill
12:00 pm
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.