Clause 37 - Duty of local authority to seek advice before providing accommodation
Mental Capacity Bill
10:30 am
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.