Ann Winterton (Congleton, Conservative)

I beg to move amendment No. 231, in clause 37, page 21, line 14, leave out from 'with' to end of line 14 and insert '—

(a) section 21 or 29 of the National Assistance Act 1948 (c.29), or

(b) section 117 of the Mental Health Act,

as the'.

The amendment is designed merely to extend the duty of a local authority to seek the advice of an independent consultee before providing accommodation for two important groups of people. We have listened carefully to what interested groups have had to say about the independent consultee and the need to widen the provisions, hence the amendment.

We want the safeguard to apply to people moving into hostels, and to people providing accommodation in relation to those discharged from detention under the Mental Health Act. Clause 37 currently applies to residential accommodation as defined in section 31 of the National Assistance Act 1948, which covers a wide range of accommodation that a local authority may assess as being appropriate to meet the care needs of people who lack mental capacity. That accommodation consists of: care homes, including those in which nursing is provided; ordinary and sheltered housing; housing association or other registered housing; and private sector housing provided by a local authority. However, it does not include hostel accommodation. The amendment will ensure that people who lack capacity benefit from the support of an independent consultee if they move into hostel accommodation, just as they would in the other types of accommodation that I mentioned.

Secondly, when people are discharged from detention, they are assessed for aftercare services, which may result in a proposed move to accommodation provided under section 117 of the Mental Health Act. That is the same sort of accommodation as that mentioned in the National Assistance Act 1948, and we want the independent consultee to be involved in such decisions. Having clarified that for the Committee, I hope that hon. Members feel able to accept the amendment.

Amendment agreed to.

Amendments made: No. 232, in clause 37, page 21, line 16, at end insert—

'( ) This section does not apply if P is accommodated as a result of an obligation imposed on him under the Mental Health Act.'.

No. 233, in clause 37, page 21, line 18, after 'interests', insert

'and, in particular, as to the matters mentioned in section 4(5)'.

No. 234, in clause 37, page 21, line 21, at end insert—

'( ) If the local authority—

(a) did not seek advice from an independent consultee before making the arrangements because they were satisfied that subsection (3)(a) or (b) applied, but

(b) subsequently have reason to believe that the accommodation is likely to be provided for a continuous period that will end 8 weeks or more after the day on which accommodation was first provided in accordance with the arrangements,

they must seek advice from an independent consultee.'.—[Ms Rosie Winterton.]

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

I beg to move amendment No. 51, in clause 37, page 21, line 24, at end add

'and if they decline the advice must give reasons in writing for doing so'.

I sense that the Committee wants to make progress, not least to ensure that remaining amendments and other aspects of the Bill are debated before the guillotine falls. I do not intend to speak at length about the amendment—in a sense it speaks for itself.

The amendment relates to another concern we have, which has been made explicit this morning and need not be returned to, that local authorities might not always act with clean hands. They might decide on a placement that suits their budget or administrative arrangements but is not in the best interests of P, even though it should be. My hon. Friends, particularly the hon. Member for Tiverton and Honiton, have rightly drawn the Committee's attention to the fact that even the existing framework of statutory duties is not always discharged as it should be. The amendment is designed to smoke out the local authority's reasoning and—consistent with other amendments I have tabled on this subject—to provide a proper audit trail for its decision. It would prevent a situation in which a local authority goes through the motions of appointing an independent consultee having already shut its mind to the possibility of taking any notice, then says that it is grateful for the advice but is going to do precisely the opposite. The amendment would at least oblige the authority to state why it did not accept the advice of the independent consultee, who could well, as the Minister just reminded us, be a professional person and who would certainly be a specialist. The reason could be that it does not have the money, or it genuinely thinks that X will be better than Y. That would be a healthy discipline on authorities.

Students of higher criticism will note that I have not tagged a similar duty on to clause 36 in respect of NHS bodies. As I spent a somewhat fevered August, as the rain teemed down, drafting my amendments, I am not entirely clear about why I did not. If I am honest, it was probably through inadvertence. If I may venture a possible defence, it is fair to say that NHS decisions could properly be clinical decisions in a way that local

authority decisions could not be. Therefore, it might be difficult to trespass on those matters, because there would be an argument about whether they trumped the lay advice given by the independent consultee. Also, there are formal procedures—although I have reservations about them—in the NHS for patient representation and a complaints procedure.

Ann Winterton (Congleton, Conservative)

Does my hon. Friend agree that not only would the amendment make the social services department focus on the reasons for turning down advice from the independent consultee, but by ensuring that he had those reasons in writing, it would give comfort to the independent consultee, because he could show to anyone interested that he had done his job but that his advice had been rejected by the authorities?

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

I think so. I am not too worried about the legal obligation on the independent consultee to do a professional job, although we discussed that during an earlier amendment of mine about malfeasance by the independent consultee. However, the amendment would provide an audit trail that should be mutually beneficial for the parties involved.

That brings me to my final point. Given the principles of the Bill, anybody involved in the care of P or giving professional advice at any time may be under the hammer or under the threat of proceedings in the Court of Protection. Nobody could walk away lightly. The amendment floats the idea of establishing a more transparent decision-making process. It is intended to confront the issues involved and, if necessary, to ensure that there is clear understanding of why the advice that the Minister is anxious should be tendered is not being taken.

Ann Winterton (Congleton, Conservative)

I understand the sentiment and intention behind the amendment and I assure the Committee that the Government's intention is the same. It is only reasonable that the independent consultee be made aware of the final decision and that he be able to challenge the decision maker if that is appropriate. However, the amendment is unnecessary because, as we do now, we will expect social services to keep proper records on how the independent consultee's advice has been taken into account and, if relevant, the reasons for disagreeing with or ignoring it. That is a matter of good practice and guidance and is already covered in the code of practice, on page 123 at paragraph 11.37. We want to ensure that any decision to go against the independent consultee's advice is challengeable. However, that is already the case for decisions taken by a council, so no special arrangements need apply. There is legally binding guidance on the single assessment process for older people which covers the instances that we are discussing.

In certain situations, it might not be appropriate to give formal reasons in writing. For example, a decision maker might want to advise the independent consultee of the decision personally, or circumstances might change rapidly and the advice might be reviewed. We must remember that such circumstances might arise. That said, and although I am asking the hon.

Gentleman to withdraw the amendment, it has been helpful to reiterate to Committee members that we expect any such decisions to be put in writing.

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

In the light of the Minister's assurances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 37, as amended, ordered to stand part of the Bill.