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Mental Capacity Bill

Part of the debate – in the House of Lords at 2:30 pm on 25th January 2005.

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Photo of Baroness Barker Baroness Barker Social Services, Non-Departmental & Cross-Departmental Responsibilities 2:30 pm, 25th January 2005

The amendments in this group relate to communication. Currently, all clauses concerning communication relate to ensuring that no one is considered to lack capacity simply because he lacks the relevant communication support. Throughout the Bill, it is not clear whether people will still require communication support to participate in decision-making processes and to express their wishes and feelings. It is difficult to see how, in practice, the best interests of a person will be assessed if that lack of support is not there.

The amendments refer to communication in different forms, including orally and visually, which is extremely important. We have spent a lot of time today talking about expressions of wishes in writing. There are quite a number of people who for different reasons are very capable of expressing their wishes, but who cannot write. There is also the additional issue of people who have to use specialist means of communication—for example, Makaton—or people with learning disabilities receiving information in forms of Easy Read.

As I was preparing for today, I heard an excellent example of how things might go wrong. It was about a lady who had had a stroke. While collecting her pension, she could not remember her PIN number and could not write. In her dealings with the bank, with the assistance of an advocate, a bank employee said, "Well, why don't you make your husband your power of attorney?". The lady concerned has a perfect ability to think and knows what she wants to do. She just cannot write. For the purposes of this Bill, that was a fortuitous example.

Much of this Bill, and whether it will work, depends wholly on communication and appropriate means of communication being available at all times. Ultimately, the question is why we should seek to put this in the Bill rather than in the code of practice, which, not surprisingly, has an extensive section on communication. There are two reasons for that. First, people who have caring responsibilities for people with very profound learning disabilities and very limited communication have expressed powerfully what that is like and how long it takes to understand what is meant by a person who has no speech.

The second reason concerns resources and can be expressed in two ways. Communication of that type and the time that it takes necessarily involves resources. There is a cost for the types of communication that are being suggested becoming best practice. In our minds, there is a question about whether something that exists in a code of practice will command enough authority. Beyond a code of practice, there is the requirement for all sorts of different organisations—perhaps those that have not ever really had to deal with this sort of issue before—to begin to develop good practice. I am not sure that lawyers and solicitors, for example, routinely have had to engage in this. For all those reasons, we believe that these amendments should be considered in depth. I beg to move.