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Mental Capacity Bill

Part of the debate – in the House of Lords at 7:15 pm on 1st February 2005.

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Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip) 7:15 pm, 1st February 2005

I am grateful to the noble Baroness for making some of the comments that I shall make and for doing so more briefly than I will be able to do. And far from overlooking the noble Earl's mistake in the amendment, I did not even see it. So I cannot blame him for anything.

The question of who should or should not be consulted is a very important one. Consultees will have to consider what is involved in the research project and what the person without capacity feels about it. Those are very important responsibilities. Obviously, they will have to know about the aim of the research. It is important, therefore, that the noble Earl has drawn our attention to the issue of research that is slightly distant to the direct benefit element. Consultees will need to know about the procedures involved, the risks and any inconvenience, and then give advice on whether the person without capacity should take part and on the person's beliefs, values, likely wishes and feelings, and, of course, whether the person has made any advance decisions.

I am very sympathetic to what noble Lords have said. It is extremely important that the consultee knows the person well enough to be able to give advice on that sort of information. Much more often than not, the relationship is likely to be one of carer, spouse, partner or close family member. However, that may not always be the case. That is why we cannot arbitrarily rule out someone who knows the person better than anyone else simply because he is what we call a deputy. It is very important that he knows the person well and is concerned about the person's welfare. That is why we state in Clause 32(2) that the person consulted must not be acting in a professional capacity or for payment. That would, for example, rule out a solicitor who might be handling financial affairs for an unbefriended person.

However, we believe that it is unlikely that the courts would explicitly grant a deputy powers in relation to research. So we do not want to rule out the possibility, for example, that a health and welfare deputy could be consulted. A deputy, or an attorney, may often be a parent or a spouse, who will know the person better than anyone else. For that reason, as I said, the Bill states that it does not automatically follow that someone cannot be consulted simply because he has been appointed as a deputy or has lasting powers.

We have again run into the problem of the list—the curse of the list. The problem, by definition, is that we risk excluding people, as the noble Baroness said. The issue is who is best placed to make a decision and how to draw up a list. What about a step-child, for example, or a step-sibling, cousin, great-niece, partner who is not a registered civil partner or friend who acts as a carer? Any of those might be very suitable to act as the deputy but they would all fall outside the amendment and automatically be excluded. There may therefore be the unintended consequence of denying a relative or partner any direct say in that involvement.

However, we sympathise with the concerns. We have already made a commitment to amend the code of practice on this point. In particular, we will make it clear that a deputy who had no relationship with, or knowledge of, the person who lacks capacity before his appointment as deputy should not be consulted about participation in research. So although I cannot meet the entire spirit of the amendment, I hope that my comments will reassure noble Lords.