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

I beg to move amendment No. 228, in

clause 36, page 20, line 32, leave out

'of less than 28 days'

and insert

'which is less than the applicable period'.

Mr James Cran (Beverley & Holderness, Conservative)

With this it will be convenient to discuss Government amendments Nos. 229, 230 and 234.

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

Clause 36 deals with the duty of a national health service body to seek the advice of the independent consultee when it proposes to move an unbefriended person who lacks capacity into or between a hospital or care home. Clause 37 places a similar duty on local authorities.

Amendments Nos. 228 and 230 have been introduced to clarify the fact that all unbefriended people without capacity who move into care homes or residential accommodation arranged or funded by either the NHS or local authorities will have access to an independent consultee after eight weeks.

Clause 36(2) provides that the independent consultee safeguard applies unless the accommodation arranged or provided by the NHS is likely to be for a continuous period of less than 28 days. That includes accommodation in either a hospital or a care home. Under clause 37, which deals with accommodation provided by local authorities, the safeguard applies after eight weeks' residential accommodation. That means that we have two different time periods for people who may be in the same accommodation.

Two identical patients could end up in residential care homes, one placed by an NHS body and one placed by a local authority. One would have an independent consultee if the period was expected to be more than 28 days, whereas the other would have an independent consultee only if the period was more

than eight weeks. We cannot justify that distinction. The amendments therefore bring the time limit under clause 36 in line with clause 37 for all people in care homes or residential accommodation. The time limit will remain at 28 days for people in hospitals.

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

I am grateful to the Minister for explaining the amendments so clearly. Will she clarify the position on assessments, either now or later in our discussions? The duties imposed under clauses 36 and 37 are about seeking advice, but I take it that they do not cut across the professional duty of the NHS body or the local authority to seek professional assessment of the person's condition before even suggesting a placement.

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

I can give the hon. Gentleman that assurance. We will also be considering annual reviews of accommodation.

Government amendments Nos. 229 and 234 ensure that all unbefriended people without capacity who move into hospitals or residential accommodation arranged or funded by the NHS or local authorities will have access to an independent consultee as soon as it becomes apparent that they are likely to be accommodated for longer than 28 days or eight weeks. When deciding on care arrangements, a health or social care professional may well consider at the start that the likely stay will be less than 28 days or eight weeks, but the period may turn out to be much longer. Under the Bill as drafted, P would not have the benefit of the independent consultee. The two amendments will put that right. I hope the Committee accepts them.

Amendment agreed to.

Amendments made: No. 229, in

clause 36, page 20, line 34, at end insert—

'( ) If the NHS body—

(a) did not seek advice from an independent consultee before making the arrangements because it was satisfied that subsection (2)(a) or (b) applied, but

(b) subsequently has reason to believe that the accommodation is likely to be provided for a continuous period—

(i) beginning with the day on which accommodation was first provided in accordance with the arrangements, and

(ii) ending on or after the expiry of the applicable period,

it must seek advice from an independent consultee.'.

No. 230, in

clause 36, page 21, line 4, at end insert—

'( ) ''Applicable period'' means—

(a) in relation to accommodation in a hospital, 28 days, and

(b) in relation to accommodation in a care home, 8 weeks.'.—[Ms Rosie Winterton.]

Question proposed, That the clause, as amended, stand part of the Bill.

Mr James Cran (Beverley & Holderness, Conservative)

With this it will be convenient to take the following: New clause 22—Right to an advocate in connection with the provision of accommodation—

'(1) The specified circumstances in which independent advocacy must be made available shall include consideration of a major change in a person's accommodation and or support where the accommodation on support is to be paid for in whole or in part from public funds, or would be but for the fact the person's resources

exceeds those set in regulations under section 22 National Assistance Act 1948 and where it appears to the relevant authority that P may lack capacity in relation to that major change in P's accommodation and/or support arrangements.

(2) A major change for the purposes of this section means any change

(a) to accommodation for a continuous period intended to or likely to exceed 28 days, or

(b) any new contractual arrangements for providing support, for a person who lacks capacity to agree to the changes, where the accommodation or support is to be paid for in whole or in part from public funds or

(c) where the arrangements need to be made a matter of urgency.

(3) Any NHS body or local authority must seek and take into account representations from in independent advocate if it is liable to provide an assessment or assessments under any of the following for the person P where it appears to the relevant authority that P may lack capacity in relation to specific matters connected to that assessment or assessments:

(a) section 47 NHS and Community Care Act 1990 (and for the avoidance of doubt this includes those assessments under section 3 of the Community Care (Delayed Discharges etc) Act 2003,

(b) section 117 Mental Health Act 1983,

(c) section 1 and section 5 Carers and Disabled Children Act 2000,

(d) assessment under the Continuing Care (National Health Service Responsibilities) Directions 2004 or Delayed Discharge (Continuing Care) Directions 2004

(e) any assessment for services which fall within the functions of a local housing authority (within the meaning of the Housing Act 1985) or any assessment for support under the Supporting People (England) Directions 2003, the Supporting People Grant (England) Guidance 2003 or assessment for charges under the Local Authorities (charges for Specified Welfare Services) (England) Regulations 2003 or

(f) any care planning for in-patient care, care following discharge or continuing care under the Care Programme Approach.

(4) Where emergency accommodation and support arrangements have to be made, these arrangements shall be reviewed as soon as possible, taking account of representations made by the independent advocate.

(5) ''NHS body'' has such meaning as may be prescribed by regulations made for the purposes of this section by

(a) the Secretary of State, in relation to bodies in England, or

(b) the National Assembly for Wales, in relation to bodies in Wales.'.

New clause 25—Duty on public body to assess capacity—

'(1) Where it appears to the relevant authority that a person (''P)'' may lack capacity in relation to matters connected to—

(a) the assessment of P's needs for services which may be provided or arranged by the relevant authority (''assessment of needs'') or

(b) the provision of services to P which may be provided or arranged by the relevant authority (''service provision decision'')

no part of this Act will authorise a person to do an act connected with the assessment of needs or service provision decision unless the steps set out in subsection (3) are followed.

(2) For the purpose of subsection (1) and (3) a ''relevant authority'' means either—

(a) a local authority exercising functions under section 47 of the National Health Service and Community Care Act 1990,

(b) a local housing authority within the meaning of the Housing Act 1985, or

(c) a Health Authority, Health Board, Special Health Authority, Primary Care Trust or National Health Service trust.

(3) The relevant authority must:—

(a) make arrangements for P's capacity, in relation to the matter in question, to be assessed;

(b) notify P of the help available from, and assist P (if P so requires in contacting, an independent advocate under the arrangements under section 34, (such help may include assisting P in communicating his views);

(c) consider whether P requires any additional assistance in communicating his views (whether by talking, using sign language or other means); and

(d) where P has been assessed to lack capacity in relation to the matter in question, to make such enquiries as are necessary to be satisfied that the matter does not fall within the scope of the authority of—

(i) a donee of a Lasting Power of Attorney granted by P,

(ii) a deputy appointed by the court, or

(iii) an advance decision to refuse treatment (where treatment is being considered).

(4) In carrying out an assessment under (3)(a) the relevant authority must take into account the views of:

(a) P with or without the assistance of an independent advocate providing support in accordance with subsection (3)(b), and

(b) anyone named by P as someone to be consulted on the matter in question or on matters of that kind, and

(c) people who are, or are likely to be, responsible for the provision of care or treatment to P in a professional capacity, and

(d) if it is practicable and appropriate to consult with them, any other person engaged in caring for P, whether or not in a professional capacity.'.

Mrs Joan Humble (Blackpool North & Fleetwood, Labour)

I rise to welcome the fact that clause 37 will introduce a new duty on local authorities to seek advice before providing accommodation. The whole thrust of the legislation is about seeking advice, consultation and so on, but certain organisations that represent people with disabilities still have concerns. My right hon. Friend the Member for Coatbridge and Chryston (Mr. Clarke) has tabled two new clauses and I want to speak to them briefly. We have had a discussion—he sends his apologies that he cannot be here today—so, on his behalf and with some guidance from Mencap, I shall make one or two comments.

First, new clause 22 is about the right to have an independent advocate in connection with the provision of accommodation. We have had a lot of debates about independent consultees and independent advocates. My hon. Friend the Minister will not be surprised that I prefer the role of an advocate, but I recognise the role that she has inserted in the Bill for independent consultees.

Clause 37 states that a local authority must seek advice from an independent consultee as to P's best interests when providing accommodation. However, it makes no provision for when in the decision-making process a local authority should seek that advice. As mentioned in earlier discussions, getting in at the start of the process can be absolutely vital. If independent advocates or consultees do not get in at an early stage, either the decision is a fait accompli or there is conflict about it as people have reached entrenched positions.

My right hon. Friend's new clause 22 spells out more clearly the appropriate trigger points for when

an independent advocate should be brought into the decision-making process—namely, at the point at which the assessment or assessments are made. That would include a community care assessment or review under section 47 of the National Health Service and Community Care Act 1990, an assessment under the supporting people provisions, an assessment regarding aftercare under section 117 of the Mental Health Act 1983 or a care programme approach, if that is being used on discharge from a psychiatric hospital.

New clause 25 would establish a duty on a public body to assess a person's capacity whenever that was in doubt before making an assessment of that person's need for health or social care or housing, or for the provision of those services. The Bill starts off presuming capacity, but as has been pointed out on several occasions in debates in Committee and on Second Reading, we need a culture change. Sadly, all too often, social care professionals and others who make decisions on behalf of individuals with a variety of disabilities tend to assume incapacity rather than capacity. However, we are trying to make the issue of capacity absolutely central through this legislation, so new clause 25 has been suggested to ensure that the examination of capacity must be undertaken before any decision is made.

Sadly, I meet all too many people who assume that because an individual is incapable of making one decision, they are incapable of making all decisions. Sometimes it is just easier to jump in and say, ''This is what we're going to do on your behalf.'' Decisions about accommodation can be vital to a person's well-being, yet sometimes decision makers will leap in and assume that a person is not capable of making a choice. The decision might be complex, but the person ought to be involved nevertheless. The new clause provides that those helping to support a person must actively ensure whether a person has the capacity to be involved in decision making and that they are actively involved in it.

The authority given in the new clause would require the local authority to assess a person's capacity in relation to the matter in question. I am sure that the Minister will say that that is implicit in the Bill, but sometimes such things need to be specified. The local authority would be required to inform the person that help was available from an independent advocate. The Minister knows that I think independent advocacy services should be available to people who need them. The local authority would also have to consider whether the person had any communication needs and would have to make the necessary inquiries to be satisfied that the person did not have the authority to make such decisions, or that the situation was not covered by an advance refusal of treatment.

The new clause is essentially about changing attitudes by setting a minimum standard that all authorities would have to meet when undertaking an assessment for capacity. It would turn P from the passive recipient of service to an active participant and decision maker, which is surely the thrust of the legislation. If we specify that in the new clause, we will make our intention absolutely clear and say what we want to get from the Bill.

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

Briefly, I am delighted that the hon. Lady has spoken to the new clauses tabled by the right hon. Member for Coatbridge and Chryston and it is right to pause for a moment to consider them. I do not intend to reopen the issue of advocacy. That is in no sense to suggest that it has gone away, but at this stage it may not be appropriate to add much to what has been said. However, I would like to talk a little about the process of assessment set out in new clause 25.

The Minister has perhaps already noticed—I trailed this in my intervention—that the formal position is to say that local authorities are of course responsible for their professional assessments. I anticipate a response to this point. As I said right at the beginning of deliberations in Committee, under the Bill—I am adding this point to what she may want to say—the process of assessing an individual's mental capacity or otherwise must effectively be continuous for the person with care of that individual, because mental capacity is deemed to be functional and it may fluctuate or return.

It is strictly unprofessional not to consider capacity moment by moment. To put it another way, a decision made at any one time could be challenged in court if the person had returned to mental capacity and if the NHS body—or, in the case of clause 37, the local authority—did not take that into account. So, there is a very heavy test that requires public authorities to do things properly. If we are honest, I suspect that we have fairly strong views that that has not always happened.

Most of us, as constituency MPs, become engaged indirectly in tussles over whether local authorities have carried out assessments on appropriate accommodation, let alone—in certain cases, this represents a substitute—carried out the placement. Sometimes, they delay the matter until the last possible moment, or until it is challenged.

It is not our purpose to widen this into a general debate on the care system, but I make the point to the Minister that there should be clear understanding among, and guidance to, NHS bodies—and, in relation to the next clause, local authorities—on the general terms of the Bill and on the specific obligation to have regard to both the professional assessment of capacity before organising placements and the independent consultee service, which is a separate wheel on the coach. Those two should not be muddled together.

My hon. Friend the Member for Sevenoaks (Mr. Fallon) has raised a point that emerged in correspondence with one of his constituents who is associated with rest care. It relates to village communities, rather than residential or other types of care homes. The Minister will say that that is irrelevant to the clauses because a care home is either registered or not, and we are discussing additional safeguards for those who are placed in care homes. However, it opens the wide issue, already floated in the Committee, about people who are placed in the community or are changing from one private accommodation to another after an assessment that

suggests that they would be better off in the community. Whether a care village would be treated as a registered care home or otherwise is relevant.

The point is put rather interestingly in the letter. I am not sure that I have local experience of the issue myself, although my hon. Friend clearly does. The letter says:

''Unfortunately, village communities have been designated unpolitically correct by some local authorities, in the mistaken idea that to be a larger setting than an ordinary house in an ordinary street is somehow shutting the residents away.''

The writer is making a plea, slightly outside our considerations, that local authorities should bear that point in mind when compiling their assessments.

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

The hon. Gentleman raises an important issue about the establishment of village-type settings for people with severe learning disabilities and about the way in which such people are accommodated and supported. However, does he not agree that the Bill will ensure that they benefit from the rights and protections that it will give anyone who lacks capacity? In some ways, the Bill will ensure that that group is more carefully involved in the decision-making processes of local authorities, health authorities and relatives.

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

Yes, I readily concede that. That is one of the Bill's attractions and I am not seeking to subvert the Bill. In principle, such groups would be brought within the radar screen. We all know that that has not always happened in the past, although it should have done. For the avoidance of doubt, perhaps I should have added that I believe that accommodation is cardinal to the welfare and best interests of persons with learning disabilities. Many of us have interests in that matter.

I agree that the Bill has strengths. I am saying that under clauses 36 and 37 the accommodation in question is tied to residence in hospital or registered care. We should not shut our minds to the range of opportunities that may be convenient for people. I hope that the assessments carried out by local authorities and NHS bodies and any advice that they may subsequently be required to take from independent consultees are properly weighed and that the right placements are made. I have no ideological view about where the placements should be, and they will vary with the individual.

I have a final point about village communities, which was prompted by the intervention of the hon. Member for Sutton and Cheam (Mr. Burstow). It is, in a sense, a rider to new clause 25, which was tabled by the right hon. Member for Coatbridge and Chryston. Subsection (3)(a) of the new clause talks about making an assessment. In keeping with the Bill's spirit of consultation, subsection (4) goes on to say that

''the relevant authority must take into account the views of:

(a) P . . .

(b) anyone named by P as someone to be consulted . . .

(c) people who are, or are likely to be, responsible for the provision of care or treatment to P in a professional capacity, and

(d) if it is practicable and appropriate to consult with them, any other person engaged in caring for P, whether or not in a professional capacity.''

The missing link is any reference to other persons who may be neighbours of P or associated with P. One of the attractions of residential care communities, touched on in the letter received by my hon. Friend the Member for Sevenoaks, is that people feel happy living alongside each other because they are friends and have confidence in each other. Those who may have lived as friends and neighbours of P for many years would probably be the right people to consult.

Applying that concept to the provisions of the Bill, the duty to seek advice set out in clause 36 is additional to the duty to make a proper assessment. Bearing in mind the principles of the Bill set out in clause 1, and the need to consult under clause 6, for example, we see that it is important that when making a professional assessment, an NHS body or a local authority, particularly when dealing with somebody with learning disabilities who may not have had have full exposure to opportunities to express their views and feelings and may not have had anyone take any notice of them, is able to include the views of any relevant person. That is what the right hon. Member for Coatbridge and Chryston is seeking through his new clause, to which I have added a potential rider.

Beyond that, there should be the additional safeguard of the independent consultee process, remembering that the local authority or NHS body still has an obligation to do the right thing for that person, and might have to change that, either on the annual review or if circumstances change. The Committee shares a common view—there is no political difference between us—that the people in question have not been given a fair go in the past for a variety of reasons. Put another way, there is a huge variation in practice, from good to indifferent. I agree with the hon. Member for Sutton and Cheam that one way to deal with the problem is to have the safeguards in the Bill that are already available to people—typically but not exclusively, people with learning disabilities. We also have the code, which we will no doubt touch on later, and NHS bodies and local authorities have professional obligations. All must be applied and be seen to be applied to the best interests of P. If the Minister sticks to that and can give assurances in respect of those concerns it would be helpful to the Committee.

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

I shall start by picking up on something that the hon. Gentleman said, then speak to the new clauses and return to issues around advocacy, which the new clauses provide an opportunity to explore further.

On the question of care villages, there are questions about what happens when a person with complex multiple learning disabilities is in a long-stay institution and about the nature of the process of deciding how services are to be reprovided. At what point do the Government expect an independent consultee to be brought into that process, which would initially be kicked off by a health body and which would involve assessments, probably by a

combination of health and social care professionals. How early in the process would that happen?

Also, to what extent can bodies undertaking assessments have regard for their resources when making decisions about the extent to which they will facilitate enabling P to communicate his views, wishes and feelings to an independent consultee or anyone else? How might the Bill affect such reprovisioning? One criticism that I have heard about the reprovisioning of services at St. Ebba's, which is in the constituency of the hon. Member for Epsom and Ewell (Chris Grayling) but at which constituents of mine are resident, has been that the views, wishes and feelings of residents were not adequately assessed and taken into account. Even the relatives felt that they had not been fully engaged. Clearly, the Bill gives new rights to P and P's relatives, such as new abilities to pursue the authorities more vigorously regarding what they believe to be in P's best interests. Will the Minister comment on that?

Ann Winterton (Congleton, Conservative)

Does not what the hon. Gentleman has just said reinforce the current situation? As long as independent consultees for and relatives of long-term residents in the kind of home that he mentioned represent P to the best of their abilities, P will probably get better service, but will not the process still be resource driven even with the new rights? If the resources are not there, how can the level of care that would be appropriate in an ideal world be provided for those residents?

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

The hon. Lady makes a fair point: we do not live in an ideal world, and we probably never will. Neither will we probably ever have plentiful resources available to meet every need at the right time in the right place. Her point is well made.

We need to keep pressing the point about the extent to which authorities can take resources into account and the extent to which that can become a way in which the authority gets its wish granted over the wishes, needs and feelings of the relatives and, more importantly, P. That is why I keep returning to this point. The Minister said that he will come back to us on that, but it is so to the interaction between public authorities discharging their responsibilities under the Bill and under other legislation on assessment processes that it has to be clear.

That brings me to assessments. It is important that the Bill be clearer about where and when public authorities have a duty to bring in an independent advocate or independent consultee—obviously, I prefer the former title, but for the sake of getting a clear response about how the Bill will work I will use the Government's terminology. The Bill also needs to be clear about the interaction between social services authorities and health authorities, for example, in the complex decision-making processes related to discharge from hospital, for which a hierarchy of assessments needs to be gone through, such as assessments about someone's entitlement to NHS continuing care, whether they are ready to be discharged, which is a partial assessment, and about their ongoing community care needs.

It is therefore important to be clear about on whom the duty rests at the beginning of that process. Does the duty to bring in an independent consultee at that point rest with the NHS or the social services department? Does the duty, and therefore the responsibility for funding the independent consultee's work, switch if the person is deemed not to be entitled to NHS continuing care? At the point at which it becomes a social services assessment, does the social services department pick up the bill for the independent consultee's work? Those things need to be clear, because there is scope for local dispute between the NHS bodies and social services about who has responsibility for funding independent consultees.

In our last sitting, my hon. Friend the Member for Chesterfield (Paul Holmes) rightly asked the Minister to say more about the ''pay and rations'' aspects of providing an independent consultee service, and about how the consultees will be made independent and put at arm's length from the bodies that have a duty to bring them in. Will the Minister say something about that?

I return to whether there should be a consultee or an advocate, which it is and how they work, and whether it is possible to draw a line around advocacy and to define it in a way that meets the needs of parliamentary counsel and the Government. Some body language—shakes of the head—communicated the view that that would be difficult. Nevertheless, I put it to the Minister that in the Mental Health Bill there is a proposition that there should be an independent Mental Health Act advocate. It seems, therefore, that parliamentary counsel has found a way of putting that into the language of Bills and has found a way of defining it to meet the need in that respect.

Given that a substantial number of people who will be subject to compulsory treatment lack capacity, we need to be clear how the new independent mental health advocates will work and how, when they are appointed under the Mental Health Act, they will be prevented from providing any of the kind of advocacy that is described in the amendments under discussion today. Will it be possible for someone who acts as an independent health advocate under another piece of legislation to act as an independent consultee under this legislation?

Mrs. Humble rose—

Mr. Boswell rose—

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

I have a choice—I shall give way first to the hon. Lady and then to the hon. Gentleman.

Mrs Joan Humble (Blackpool North & Fleetwood, Labour)

The hon. Gentleman raises an interesting point. There will be, for example, cases in which elderly people who are in an acute hospital, who have mental health problems and whose capacity may be in doubt, are being relocated to residential accommodation in the community. Who will look after their needs? Will it be the independent consultee under the provisions of this legislation, the proposed Mental Health Act advocate, or the local social worker in consultation with doctors?

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

That is an excellent question, and I look forward to an excellent answer to it from the Minister. Someone who is an elderly, mentally infirm patient—perhaps a dementia sufferer—might be provided with services by the local mental health trust. It therefore must be clear whether in those circumstances they and their relatives will be able to say, ''We think we should be able to have access to an independent mental health advocate for P, rather than an independent consultee.''

How will it be made clear which is the relevant entitlement and how that entitlement is triggered? One of the entitlements may be more generous because presumably, in the context of the Bill, P will be able to benefit from a consultee only if he or she is unbefriended. That relates to a point made by the hon. Member for Daventry (Mr. Boswell), that others who lack capacity in a community or village setting might be friends of P. It would be useful if the Minister said whether there are any circumstances in which an appropriate authority might be able to pray in aid the fact that a person is not unbefriended, because there are other members in that person's community who can be consulted, and that therefore it does not have a duty to bring in an independent consultee. It would be useful to know whether others who lack capacity could never be classified as friends, for the purposes of the legislation, in relation to the appointment of the independent consultee.

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

Just to add to the palette of difficulties that we as a Committee are teasing out, another point occurred to me when rereading the Bill. Circumstances might arise in which a person had been admitted to hospital for an acute condition—perhaps arising from self-harm, for example—and in which an independent consultee could be involved while the NHS body was considering courses of treatment or referral. Will the hon. Gentleman seek the Minister's assurance that any independent consultee would not be precluded by the legislation from making a recommendation that such a person should be referred back to a mental hospital for further treatment if that is appropriate?

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

I am grateful to the hon. Gentleman for asking that question; I will let it bounce off me and look to the Minister for a response.

Let me tease out a little further something else that the Minister said to the Committee: that the Department—it would be useful to know which Department we are talking about for this purpose—would widely consult partners outside Government on the development of the independent consultee service. She went on to say that advocates could train to be independent consultees. It would be useful if she let us know which partners she has in mind. Do they include existing, established advocacy providers? It is crucial that advocacy services sign up, if that is possible, to the proposed developments. It would be helpful if the Minister told us with which established advocacy networks her Department has had discussions on the developments. As I understand it, no established advocacy networks or associations have so far shown a willingness to sign up to the proposals, because they do not believe that they constitute advocacy, so could the Minister say which members of staff would be

likely to take on the role? That goes back to the question asked by my hon. Friend the Member for Chesterfield at the previous sitting.

Those are burning questions for many outside the Committee, as I am sure the Minister understands. That is why I am doing my best to ensure that they are put to her today. I look forward to her response.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

I, too, support the new clauses. If I may, I shall paint a picture for the Committee in respect of new clause 25 and assessing capacity. We have heard much about people in a general hospital—I am thinking particularly of elderly people who are admitted, for example, to trauma wards because of fractures and similar things, but who may have a complex range of conditions, including some degree of mental incapacity resulting from depression or related illnesses, which may or may not be medicated. Clearly, the usual procedure when someone is admitted to hospital is that any medication that they are already taking is identified and continued. However, if we consider the vast spectrum of the frail elderly who would fall within that group, it is easy to see that a lot of people will slip through the net.

I shall paint a picture for the Committee based on my dear late mother's situation only months before she died last year. She had Parkinson's disease. She was very frail, very elderly and in residential care. Parkinson's, as people will know, is very debilitating; it was a terrible affliction for my mother, and the longer she had it, the more it affected her quite severely. I recall going to see her one day because someone from the Parkinson's Disease Society was coming to talk to her about the local group. I was astonished by how my mother picked up when the lady from the society was talking to her; she was quite perky. I was astonished at how well she seemed and how articulate she was, and I noticed the same thing later in the year, when she was admitted to hospital. She was there for nearly three months and was genuinely very poorly, but the moment the doctor came in my mother, being one of the old school, would suddenly take on a new dimension and have an articulate conversation with the doctor.

The lady from the Parkinson's Disease Society, for which I have great admiration, said in passing to my mother, ''Oh, we're doing a lot of research at the local university. I wonder whether you'd be interested in taking part.'' My mother beamed and said, ''Yes, I would.'' The lady asked, ''Shall I put your name down?'' and my mother replied, ''Oh, yes. Put my name down.'' I just sat there, because after all it is not for bossy daughters to intervene at such a stage, but I was quite astonished by how the conversation went. No definition or details of the research was given, but her name was now on the list. Let us imagine that someone asked me at that point whether my mother was able to take on board what the term ''research'' might mean. I was concerned because my mother had stopped going to out-patient eye clinics because she was simply no longer well enough to handle going to a hospital out-patient clinic, so the idea that she was volunteering for unknown research filled me with horror. I was tempted to intervene and say, ''Take her

name off the list at once,'' but I thought, ''No, I must not do that,'' because she seemed in full control of the conversation.

I tell that story because there is a fine balance to strike when judging the capacity of elderly people. The assessment needs to be made by somebody who knows the person well and is familiar with all the material facts about them and any other related matters affecting them. When everyone else had left, I asked my mum what sort of research she thought it would be, and she said excitedly that she did not know, as if she was going on a great adventure. I then asked her, ''What do you think they'll do? Will they want some of your blood, or will they want to take an X-ray? You don't think they'll want to do brain surgery, do you?'' She simply replied, ''I hope not, dear.'' As it happens, events overtook her and she died a few months later.

I picture that occasion with her now, and I can envisage all types of scenarios involving that type of person, of which there are many. New clause 25(3)(b) states that ''an independent advocate'' is needed to make accurate assessments and I agree, because I wonder what might have happened had I not been present at that conversation that I have just described, as well as a few other times in the hospital when my mother perked up for the doctor—she would be flat out for 24 hours, but she would perk up for the doctor. It is very worrying to think how people who do not have somebody close to them or someone to act as an advocate for them will make some of the decisions that have to be made, particularly the big decisions covered by the clauses.

This morning, I advised a Member who had come to me with a problem: a social services department had refused to assess somebody with an autistic spectrum disorder on the ground that they had an IQ of over 70 and that therefore their needs could not be anything like those of somebody with a learning disability. I provided the necessary Government guidance on that, which clearly shows that it has a statutory duty to assess that person. In our casework, we frequently deal with people being unable to access their rights under existing legislation.

I have one more anecdote from the Browning casebook. This week, an elderly lady in my constituency who had been admitted to a general hospital was discharged to a cottage hospital. We have discussed the 28-day period, but elderly people sometimes stay in hospital for longer than that. Because that lady had no relatives, she had nobody to act as an advocate for her. Those who have some knowledge of Devon geography will understand my point when I say that the lady was discharged to a cottage hospital in the middle of Dartmoor. The only person this lady has any contact with is her next-door neighbour. My hon. Friend the Member for Daventry spoke about the friendly neighbour who does not have any legal responsibility for a person. She is a kind, interested, elderly neighbour, and she was the only person who visited that lady while she was in the general hospital. The elderly neighbour phoned me last Thursday and said, ''They are going to discharge her tomorrow to the middle of Dartmoor. It will be impossible for me to visit her there. She will have no

visitors, and goodness knows how long she will be there. Is there anything you can do?'' I am pleased to be able to say that there was, and she has now been discharged to our local cottage hospital.

Such cases arise almost daily, and I worry about those in which there is nobody to advocate for people and to make sure that certain factors are taken on board, such as the location of where people are being sent. That may be a long-term decision; someone might be being placed in a nursing or residential home, or a care home if they have a learning disability. The whole picture must be taken into account. If someone is put at a certain location, will it be more difficult for the few people they know to continue their relationship and contact with them, and what might be the detrimental effects on P if they are divorced from the very few people with whom they have any form of social contact?

All those decisions have to be made, and sometimes—as we know, and as is stated—they have to be made in a hurry because of an emergency or a crisis. I support the new clauses. People may well say that there is already legislation that gives a statutory duty to do this or that, but hon. Members know a lot of people for whom such things simply do not happen. Somebody has to prod and to ask the difficult question; somebody has to take the role of the awkward squad to get the right outcome for P. Unless there is an independent advocate to do that, the wrong decisions are made and people are affected badly by them. I support what has been said about the need to assess capacity and about how to provide advocacy, especially when big decisions are taken. I hope that the Minister will look kindly on the amendments.

Ann Winterton (Congleton, Conservative)

Once again, we have had a wide-ranging debate, which has gone to the heart of what some members of the Committee feel—the service we are offering does not fulfil the advocacy role. However, I hope to reassure hon. Members in that respect.

It will come as no great surprise to hon. Members that we cannot accept the new clauses for several reasons, not least because they would expand the independent advocacy role to a much wider setting than we believe to be deliverable. It would be extremely difficult to define some assessments for which the new clauses state there should be advocacy.

I shall repeat what the new independent consultee offers. We want to build on the very best of advocacy, which was described by my hon. Friend the Member for Blackpool, North and Fleetwood (Mrs. Humble). In the case cited by the hon. Member for Tiverton and Honiton (Mrs. Browning), if someone was considering a long-term move and was unbefriended, the independent consultee would be able to talk to neighbours and friends when considering all the options. That is the point: the service we are describing states that what we want is to interpret or represent someone's feelings and to consider the wider circumstances, such as what options are available.

For example, in the case that the hon. Lady described, an independent consultee might say about

a certain place, ''Well, it is extremely attractive, it has nice grounds and a good atmosphere, but on the other hand there is somewhere else that would allow a neighbour to visit.'' The decision would then be which was more important to the person concerned. What we propose is much wider and it covers exactly the points raised by the hon. Lady.

I reiterate that in developing the new service we had to consider to whom it would be most appropriate to apply it. Thinking about all the circumstances, we decided that, in trying to define advocacy services, which are different depending on where they are, we had to consider what happens at present to people who are unbefriended—those who have no one on their side.

We had to devise a system that would give them a service that was designed for them. I strongly believe that what we propose is advocacy plus; it is something extra on top of what people might usually associate with advocacy services. As we said, funding of £6.5 million is available for it; it is a statutory service. We also said that we want specific national standards and training for the service. There is no reason why people who are advocates at present should not undertake that extra training.

The Mental Health Bill defines particular circumstances in which advocacy comes in; because conditions have to be met, it is easier to define. Therefore, one can say that there is a clear line in the process where advocacy can be brought in. That does not mean that someone who is an advocate under the Mental Health Bill should not be an independent consultee as we have defined the role. That involves building on the best of services and people who are already trained, as well as building on how primary care trusts and social services create that independence at the moment. In many senses, it involves professionals who are able to make that judgment. We need to ensure that they do that through the training we provide.

Several hon. Members rose—

Ann Winterton (Congleton, Conservative)

I give way to my hon. Friend the Member for Blackpool, North and Fleetwood.

Mrs Joan Humble (Blackpool North & Fleetwood, Labour)

I thank the Minister for outlining that, but I am reminded of our earlier discussions on terminology and too many different titles. Mrs. P, the elderly person who is mentally infirm and in hospital for treatment for a medical condition, may be faced with an individual coming into that hospital wearing two hats—independent consultee and independent advocate—whether or not those apply under the Mental Health Bill. Surely it would be much simpler for Mrs. P, lying in her hospital bed, to use one title for one person who comes in and offers her the support she needs, instead of the hospital, or whoever, deciding to invite the same individual under two titles.

Mr James Cran (Beverley & Holderness, Conservative)

Order. Before the Minister speaks, although I know this is a very important debate, I must insist on short interventions.

Ann Winterton (Congleton, Conservative)

It is important to be practical about this matter. There will, to an extent, be different roles.

It may not always be appropriate for somebody to act in both roles for the same individual, although it may be appropriate at other times. Under the Mental Health Bill, the advocate's role is to express the wishes and feelings of P when they are being detained under the Mental Heath Act 1983. There may be a difficulty if the same person plays both roles; we would have to explore that. However, the general position on advocacy does not undermine the services that are currently provided. I believe that professionals and people who are advocates at the moment would be able to undertake the different roles—although not necessarily always for the same person, because there might be difficulties within that framework.

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

May I raise again the issue of unbefriended people? If a person's carer is a close friend or a sibling, that carer may feel that they do not have the capability to make an adequate assessment of the situation on P's behalf. However, it might be possible for them to approach the local authority or the NHS body and say, ''Would you please arrange for this independent consultation?'' At the moment, there is not even provision for that.

Ann Winterton (Congleton, Conservative)

We need to consider that in discussions on clause 39, when we will explore whether it would be appropriate for such a thing to happen in other circumstances. We have talked about family disputes, which the hon. Member for Tiverton and Honiton has raised previously. We need to consider circumstances in which a person really does not feel able. We would want to consult on that.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

Has the Minister reflected on the time scale involved in enabling the independent consultee to make adequate investigations of options? For example, he might have to look at several residential homes, which could be time consuming. How will that fit in, particularly if a patient is discharged from hospital, with current legislation that imposes a financial penalty on the local authority if the person is not discharged within a certain time frame? How will such a proposal be adequate when other legislation impacts on discharges from hospital?

Ann Winterton (Congleton, Conservative)

I want the independent consultee to be involved as quickly as possible—for example, if there were any likelihood of a change of accommodation. The hon. Lady refers to the circumstances of discharge from hospital. There have been vast improvements there and this is almost practice now in many hospitals, which must be spread further. The way in which local authorities and hospital trusts are working together is extremely impressive. When people are admitted to hospital, a quick assessment is made of how feasible it is to discharge them quickly. There is that incentive and we want the independent consultee to be brought in as soon as possible.

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

To finish that point, can the Minister confirm that the Department will consider issuing further guidance to NHS bodies and local authorities on precisely the point at which the clock starts, for the purposes of the delayed discharge legislation and liability to pay fines?

Ann Winterton (Congleton, Conservative)

I am not sure that further guidance will be issued on that matter, but I shall write to the hon. Gentleman about it. The processes that have been set in place will be effective, but we want the independent consultee to be brought in as quickly as possible.

Several other issues have been raised, such as who will be responsible for funding the independent consultee. The single assessment process will ensure that a joint assessment is made of the needs of people in continuing care. We will want all NHS and social care providers to work together when providing continuing care and to agree jointly eligibility criteria in an assessment of need.

These measures deal with circumstances in which accommodation is provided by the NHS or social services. If a village community is providing personal care as defined under the Care Standards Act 2000, it will be regarded as a care home. If people are unbefriended or placed there after an assessment under section 47 of the Health and Social Care Act 2001, they will have an independent consultee. As I outlined in my response to the hon. Member for Tiverton and Honiton, consulting friends within that scenario is something that the independent consultee will want to take into account when building up a picture of what is in the person's best interests. He might learn more about the feelings of that person and the circumstances in which the person is living.

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

It is helpful to have a dialogue such as this. The Bill is about persons who might have fluctuating capacity and circumstances will change from time to time. An independent consultee could be called in to make a set of recommendations for a particular situation which could then be accepted or rejected. Would it be open to that consultee to set conditions such as, ''If the circumstances change, this should be revisited.''? If he could do that, would the appropriate authority be obliged to have regard to any changing conditions and to make the appropriate alterations, or, if necessary, to reconsult an independent consultee? In other words, will consultation be not just a one-off, but part of a continuous process as conditions change?

Ann Winterton (Congleton, Conservative)

I have said that we want to consider annual reviews; perhaps something could be built into that. Obviously, we will have to consult on that.

Some Members asked whom we have consulted about the new service. We have consulted a number of advocacy groups, but it would be inappropriate to go much further this before Parliament decides whether it wants to proceed with the service that we are offering. I strongly believe that the independent consultee service will be a new and innovative service for a very special group of people—the unbefriended and vulnerable, who currently do not have anybody who can help them in these circumstances. We will consult further about whether the group of people to whom service applies can be extended and whether other decisions should fall within its reach. The service will be statutory, and I believe that it will build on the very best of advocacy services. However, we cannot accept

the new clauses because they extend beyond the remit of the Bill. We want to develop the service and, within that process, to allow that there may well be room for the kind of extensions available under clause 39.

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

Will the Minister say a bit more about the Government's thinking on how the organisations of independent consultees will be set up and funded, who will be responsible for their pay and rations, and how they will be kept at arm's length from the bodies that have a duty to use them? It would be useful to get clarity on those matters. More specifically, I would like the Minister to say how the funding responsibility might shift from the NHS to social services if a series of assessments is being made, or how that issue might be dealt with.

Ann Winterton (Congleton, Conservative)

I addressed some of those issues when I dealt with the single assessment process; I said that there is already joint working. I cannot go into the minutiae of how the service will operate because that is what we are consulting on—

Mr. Boswell rose—

Ann Winterton (Congleton, Conservative)

I will come on to the hon. Gentleman's point.

As I have said, if we look at how advocacy services currently operate, we see that they can be employed by social services and retain their independence. I do not think that there will be an enormous problem with the independence of groups that receive funding from social services. Often, the people working in these services are professional people. The problem is not insurmountable, as the hon. Member for Sutton and Cheam is implying. These services are already operating, and we simply want to build on current best practice.

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

I am genuinely trying to help the Minister, because I know that she is trying to help the Committee. Will she reflect on the possibility of writing to the members of the Committee—I make no self-important boasts about our commitment to the issue, but I think that we are all interested—in order to flesh out some of the points raised, whether explicitly or by implication, about independent resourcing, status and so forth? Perhaps she could use us as quasi-consultees as the concept develops. That would be immensely helpful and much appreciated.

Ann Winterton (Congleton, Conservative)

I am perfectly happy to write about the £6.5 million that has been set aside and about the consultation process, but let me say strongly to the hon. Member for Sutton and Cheam that the route that he is taking almost precludes many of the organisations that he mentions from benefiting from what I think will be an improved service. I certainly do not want to rule out the many existing advocacy services that work closely with social services and others building on their work and participating in the new service. I hope that is not what he is suggesting.

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

That is incredibly helpful. I am not taking any route; I am attempting to ascertain the Government's route. It would be useful if, in her letter, the Minister gave at least a sense of the parameters of the consultation. It is rare for the Government to base consultation on a blank piece of paper; they normally have a fairly clear idea of the parameters within which

they want to work, and it would be useful to know what they are.

Ann Winterton (Congleton, Conservative)

I am happy to share some of that information with the Committee. Having said that, we feel unable to accept the new clauses, but I hope that I have given the Committee assurance that the service will be new and innovative; it will build on the very best of advocacy, and will certainly not undermine it.

Question put and agreed to.

Clause 36, as amended, ordered to stand part of the Bill.