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

The Minister has been helpful to the Committee in seeking to give further flesh to her developing thinking about the independent consultee service. After some rather triangular exchanges, she has suggested that she is minded to write to members of the Committee and flesh it out as much as she can. I understand the difficulties while consultation is in progress. That is characteristic of the Bill as a whole. Just because we have not left our gloves on the table during the Committee stage, it does not mean that we do not reserve the right to fling them down at a later

stage. I am sure that the Minister and those who listen to these debates will be aware of that.

Within the exact context of the assurances that the Minister has already given that she is developing her thinking and might seek to widen the powers of the independent consultee, I would like to record in clause stand part the helpful assurances that we have already had, not only on the general framework, but in consideration of family disputes and the position of family members or day-to-day carers who feel unable to participate in the decision themselves, but would be happy for a third person to do so on their behalf. That will be helpful.

What has forcefully struck me—my understanding has firmed up during the debate—is the idea that we are embarked on a much bigger undertaking than we previously understood. The Minister has referred to 64,000 decisions, not individual cases, per year—much larger than in the whole history of the Court of Protection. The hon. Member for Chesterfield received a written answer on that specific subject the other day, and the numbers involved are different by an order of magnitude. I make no complaint about that, because the provision is meeting a need and the Minister is right to do that. However, not least because she has suggested that she would be minded to consider whether to have the affirmative procedure in relation to clause 39, she might like to give some thought to developing the idea.

The first development should be in the regulation-making process. Sometimes, provisions are made in legislation for first regulations to be subject to affirmative procedure, and for subsequent updating regulations to be subject to negative procedure. In other words, the thing is run past the House once, and then, as adjustments are made—the term is used later in the clause—those can be subject to the negative procedure. I am not advocating that at present, because I have not tabled an amendment on the matter—I am thinking aloud and sharing my thoughts with the Committee. I do not ask the Minister to give us an assurance today, but I hope that she will consider how she might bring to the House the process of developing the service and the decision-making that will flow from it.

To have an idea of the overall scope and then later to consider specific issues about widening that scope are two different things. When the Minister has consulted on some of the matters discussed in relation to earlier clauses—we will not return to them now—such as the definitions of an NHS body and a serious medical treatment, it would be useful to have a proper debate on that in this place, looking at the concept as a whole.

My second point is also for future consideration by the Minister as she develops her thinking. It relates to whether the independent consultee is a type of service. When I originally read the Bill, I thought in terms of a minority of cases in which there was a problem, and in which the independent consultee would operate independently—rightly—to deal with that particular problem and to give advice to the public authorities that were involved. However, given the scale and the aspirations that the Minister has set out for the

service—what she likes to call advocacy plus, although some of us are sceptical—it is now clearer to me that we are really discussing a full-blown public service, albeit one delivered through local authorities or through the NHS locally. It is a panel of people.

The Minister will be aware that I have tabled some amendments about the role and function of the Court of Protection visitors, of whom there will be fewer and who are more specialist, suggesting that the Court of Protection may want to report to the Lord Chancellor and be accountable for the way in which it works. If that were to be the case, I would say, a fortiori, that the system of consultees is a big and important service, by which the Minister sets great store, and that she therefore might like to reflect on the mechanism by which it might report to Parliament. We can rest assured—hon. Members on both sides of the Committee have made it explicit—that cases in which a decision has been made, ostensibly with professional advice, that goes against what we or people close to P feel is in P's best interests, will remain part of the day-to-day casework of MPs. We are all agreed that there is a need for independent advice in such situations. However, if this service is to be introduced, we should consider whether we should draw it all together—perhaps by appointing a head of service or something similar—so that there would be some focus on the service that we could eventually run past Parliament.

I have brought with me, because it is a good and rather encouraging document, the new annual report of the Public Guardianship Office. I welcome that report, and will talk about it when we reach the appropriate point. I wonder whether we might have a similar report on the independent consultee service, so that we could begin to draw together the lessons and good practice from the experience of people carrying out that very important task for the person without capacity.

Ann Winterton (Congleton, Conservative)

As I have said, we are considering the affirmative procedure in relation to regulations made under clause 39, particularly with regard to expanding the type of service that the independent consultees will offer and the people to whom it will apply.

The hon. Gentleman's second point was about the possibility of a report to Parliament. The NHS and local authorities will have responsibility for scrutinising the work of the consultees; their work comes under the remit of the Healthcare Commission and the Commission for Social Care Inspection. My initial reaction is that I would be hesitant about saying that we needed to build a whole new method of parliamentary scrutiny, because that might not allow the kind of developments that have been described, such as advocacy groups that operate locally, and might hinder our getting the sort of service that I have described. I am anxious not to establish something that will not allow people to build on that.

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

It would be useful if the Minister included in the letter that she kindly offered to write to us—

Ann Winterton (Congleton, Conservative)

It's turning into a book.

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

The bigger the better—perhaps it will be a really good read.

Will the Minister say in that magnum opus who will have responsibility for inspection and for setting standards for independent consultees? Given that there could be social care and health care roles for those people, will it, as she says, be CSCI or the Commission for Healthcare Audit and Inspection—

Ann Winterton (Congleton, Conservative)

I do not want to say that we will consult relevant organisations if we in this Committee have already decided exactly what the thing will look like. I will, in so far as I can, set out some of the existing services, but I want to ensure that we consult properly and openly on an important new service.

Question put and agreed to.

Clause 39 ordered to stand part of the Bill.