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Mental Capacity Bill

Part of the debate – in the House of Lords at 9:15 pm on 1st February 2005.

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Photo of Lord Pearson of Rannoch Lord Pearson of Rannoch Conservative 9:15 pm, 1st February 2005

It will be clear from what I said at Second Reading and on the second day of Committee—Official Report, 27 January, cols. 1473–79—that I have some difficulty with this group of amendments. That is particularly so, alas, with Amendment No. 142, which is in the names of the noble Lord, Lord Alton, and the noble Baroness, Lady Masham. Both noble Lords will know that I am extremely reluctant to disagree with either of them, as I am usually among their most fervent admirers. Indeed, I can see that their amendment and the others in the group may be perfectly sensible when applied to most of the categories of people covered by the Bill. But the Committee will remember that I speak for the lifelong intellectually impaired, particularly those who are more severely disabled from birth.

For that category of people, it is most important not to empower professional carers—including, as I understand them, the independent advocates introduced by the group—against the dedicated and knowledgeable family carers who are usually the best people to take decisions on behalf of their relatives.

I trust that your Lordships will agree that I was supported in that principle by the noble Baronesses, Lady Howarth of Breckland, Lady Knight of Collingtree and Lady Finlay of Llandaff, in Committee on 27 January. The whole problem was well set out by the noble Baroness, Lady Pitkeathley, at Second Reading on 10 January (at col. 69 of the Official Report). The Minister seemed to be in general agreement with the points that we made and indicated that the Government would cater for them in the code. She has also been good enough to write me another letter, but it has not yet arrived—hence this intervention.

Foremost among our worries is that considerable disagreement and anguish has been caused in the past when professional carers sought to impose their own agenda against the wishes of family carers who know the person best. Speaking for them—and I am one of them—we certainly would not want independent advocates to be given the powers envisaged in Amendment No. 142. We would be very depressed if independent advocates had to be available,

"to assist P when D is considering doing an act, or making a decision to do an act which will, in any way, affect the care or welfare of P".

Nor would we want an independent advocate to be mandatorily on parade to,

"permit and encourage", our relative,

"to participate or improve his ability to participate as fully as possible in the act proposed to be done or the decision to be made affecting him".

Nor would we want an independent advocate's assistance to express our relative's,

"past and present wishes and feelings, beliefs and values and other factors which he would consider are relevant to the decision or proposed action if he were able to do so".

I could continue further into Amendment No. 142, but I trust that Members of the Committee get the gist. I repeat: I recognise that all of those aims may be laudable for other categories of people covered by the Bill—perhaps the vast majority—but not for the people I represent.

I am aware that there may be a number of noble Lords who doubt whether family carers will always be the best interpreters of their relatives' wishes. Some noble Lords may feel that in some cases, surely, the professionals are likely to know better than the family. I accept that that can happen, especially with less impaired people, who may find that their families are over-protective. Indeed, as I mentioned at Second Reading, we heard articulate evidence of that in our Joint Committee hearings on the Bill. But for the people I represent, I assure your Lordships that it is rare indeed for the family carer to get it wrong and the professional carer to get it right. In support of that contention I would point out that our intellectually impaired people are often open to suggestion, even from people they do not know at all well. It is not easy to get their consistent view on things and it takes time, patience and knowledge to sift the wheat from the chaff.

I should also mention a technique called FAC, facilitated active communication, which was enthusiastically supported by a number of advocacy groups and which purported to be able to ascertain the wishes of people with severe learning disabilities. I understand that a few years ago in Wales, a Professor Fels conducted a number of studies which showed that in every instance, I believe, it was the facilitator's views and opinions which emerged, not those of the individual concerned. So, if you have advocates paid by the local authority or NHS trust, it is likely that the voice which emerges will be theirs.

I have spoken at some length and I fear that my comments will apply in mutatis mutandis to the next two groups of amendments at least. In order that I do not take too much of the time of the Committee and begin to sound too much like a cracked gramophone record, it would be helpful to know if the Minister has taken on board and accepted the burden of my song. It may be that I have misunderstood the position and independent advocates and other professionals will not be able to cut across the wishes of family carers in the way that I fear. It may be that the Minister's letter, when it arrives, will confirm that the code will cater for the point that I and other noble Lords are trying to make.

In short, any firm assurance that the noble Baroness can give this evening would considerably reduce my future contributions to your Lordships' proceedings on the rest of the Bill, which I confirm we otherwise support and for which we are, indeed, grateful.