Mental Capacity Bill

Public Bill Committee, 2 November 2004.

Standing Committee A

Clause 31 - Requirements for approval

Kevin Barron (Labour, Rother Valley)

There is uncertainty about what research will not take place if the Bill as it stands becomes law. The hon. Member for Sutton and Cheam (Mr. Burstow), who is not in Committee at present, referred last week to a briefing from the Medical Research Council and the Wellcome Trust, which were concerned that the research provision would inadvertently restrict certain categories of research that are of importance to adults who lack the capacity to consent. The briefing gives an example, saying that the provisions

''may restrict certain types of research on the side-effects of medicines used to treat people with mental disorders. This is illustrated by the following example. The drug clozapine is an important anti-psychotic drug the use of which has been restricted because it adversely affects the production of white blood cells. This side effect is not a 'condition' which is 'attributable' to the 'impairment of, or disturbance in the functioning of, the mind or brain'.''

Those three points are related directly to subsection (2)(b). The briefing continues:

''Rather, it is a 'condition' which is probably attributable to an inappropriate immune response triggered by the drug.''

Their concern is that

''If the term 'connected with' is interpreted narrowly, research on the side-effects of this drug would not be permitted under the Bill. This could have serious implications for patients who suffer from schizophrenia or other mental disorders who stand to benefit from this type of research.''

The hon. Member for Sutton and Cheam spoke about the use in subsection (5)(a) of the word ''risk'', and the phrase ''in a significant way'' used in subsection (5)(b)(i). He said that the Medical Research Council was concerned about that. The example that I have cited clearly outlines the council's fears that a strict interpretation of the term ''connected with'' could narrow the scope for research.

I have been contacted by the British Medical Association, which has been negotiating with the Department of Health on the drafting of the Bill. The BMA is worried about non-therapeutic procedures, saying in its briefing note:

''The provision to include non-therapeutic procedures that will benefit other third parties was originally included in the Law Commission 1995 report into Mental Incapacity . . . It mentioned that any order made by the Secretary of State must stipulate

whether the procedure requires the prior approval of the court; or alternatively a certificate from an independent medical practitioner.

The Mental Capacity Bill does not tackle the question of minimally invasive interventions that are not directly in the best interests of the incapacitated person, but are not harmful and provide a significant benefit for third parties. There are two particular instances in which this would occur.''

I shall read out the two examples. I do not expect the Minister of State, Department of Health, my hon. Friend the Member for Doncaster, Central (Ms Winterton), to give detailed responses to them now, but if she could do so in future it might benefit members of the Committee and medical professionals who work in such areas.

The BMA first has in mind

''testing for blood borne diseases following a needlestick injury to a health professional where there are good reasons to think that the patient may have a condition, such as HIV, for which prophylactic treatment is available. As the Bill is currently drafted, it would be illegal to take a blood sample for testing. In circumstances where an individual is unconscious and unlikely to regain consciousness in the short term, a doctor who has received a needlestick injury cannot make an informed decision about ongoing . . . treatment if a test cannot be undertaken to determine the patient's infection status.''

In its guidance on serious communicable diseases, the General Medical Council, of which I am a lay member, makes it clear that

''taking a blood sample for testing in such circumstances may leave the doctor open to criminal charges and that testing an existing sample, without consent, may also be challenged in the courts or before the GMC.''

The doctor might end up being subjected to the fitness to practice procedures if he did that. The BMA

''would like the Bill to address this circumstance to allow doctors to take steps to protect their own health and the health of other health professionals where those incidents occur.''

Secondly, the BMA is

''very pleased to note that provision is to be made in the Human Tissue Bill for Regulations to allow genetic testing of a sample from incapacitated adults for limited purposes other than their own medical benefit. There are circumstances where information obtained from DNA analysis will be of huge benefit to other family members and we hope that this will be covered by Regulations. As the Bill stands, however, there is no provision for samples to be taken for that purpose. It is not clear that taking blood for genetic testing for the benefit of a relative would satisfy the 'best interests' tests as a matter of law. In discussing this issue the Human Genetics Commission said ' . . . the position of the adult without capacity remains unsatisfactory. The lack of any specific legal authority means that, whether or not such an intervention is lawful remains open to doubt.' The BMA would like to see this issue clarified in the Mental Capacity Bill.''

I do not think that we will clarify the issue this morning, but I say to my hon. Friend that people working in the profession need to have those two issues clarified, particularly the consequences of a needlestick injury to a health professional. Although that may be outwith the aims of the clause, we ought to clarify the issue at some point both for professionals and for patients—obviously, patients need to know what might happen to them in certain circumstances.

I do not want to trawl over the issue any more. I recognise that it is difficult to respond to the picking out here and there of words such as ''risk''. The Bill is drafted by parliamentary lawyers, who have made their best guess as to how we should proceed, but

questions have been raised by outside organisations and professions and we ought to try to answer them as best we can during the passage of the Bill.

Tim Boswell (Conservative, Daventry)

I am grateful to the right hon. Member for Rother Valley (Mr. Barron) for raising these issues, which he does both of his own cognisance and on behalf of the GMC. The issues he raises go to the heart of concerns expressed in earlier debates, which I do not need to rehearse.

To make an obvious but important statement, the Bill sets out provisions for research and is designed to provide some boundaries beyond which that research should not take place. In fairness, and remembering earlier discussions about research ethics committees and so on, and the oaths taken and personal moral judgments made by members of the medical profession, I ought to say that there are, of course, limits on the process. We have discussed the inappropriateness of, among other things, carrying out research that has no connection with the person involved or their condition but has to do with something completely other, or research that is likely to cause them serious pain or distress. Both are ruled out, and so they should be—that is not the issue.

The right hon. Gentleman is right to raise the issues and say, with great respect to the Minister, that we probably will not resolve them today. Further reflections and discussions, and perhaps deliberations in another place, will be required before they are hammered out. He is right to raise them in relation to acts that are connected with the condition but not actually the condition itself—I have some sympathy with his points on that—and in relation to research that is not demonstrably for the benefit of the patient. I touched on that earlier.

Interestingly, the word ''benefit'', which is drawn from parallel Scottish legislation, as the right hon. Member for Coatbridge and Chryston (Mr. Clarke) reminds the Committee, is introduced at this point in the Bill but does not appear elsewhere. I said the other day—it remains my view—that there is concern about the overall application of the best interests principle in clause 1 to this clause. One has to stretch the principle, which has to be very elastic, to encompass all situations now. We have to think long and hard about whether we need to set boundaries.

Subsection (4)(a) talks about

''the potential to benefit P without imposing . . . a burden that is disproportionate''.

That is a reasonable test, which is why I did not seek to exclude it through my amendment. However, it is made clear in subsection (5) that that test in subsection (4)(b) would be different. Research that passed that test would not be a subset of something that might benefit P—in fact, it is implied that it would not benefit P. In effect, subsection (5) states that if such a test will not benefit P, we have to make sure that it will not damage P. That brings me on to what I have called neutral acts—acts that do not help the person who has lost mental capacity, but are somehow related to their condition and might benefit a class of people in the

future. That employs a wide interpretation of the best interests clause. We need to watch carefully and establish whether we need to tie the matter down further, either with language, or, as the right hon. Gentleman suggested, with an independent umpire who could rule on behalf of the court if necessary. That would be a reasonable test.

The right hon. Gentleman also raised the issue of blood tests. I am not clear about whether a blood sample or part of one taken for one purpose in connection with the treatment of the person, P, could be diverted to another purpose. Will the Minister clarify that?

Angela Browning (Conservative, Tiverton and Honiton)

My hon. Friend might be aware that a year or so ago, with the assistance of the Home Office, I helped to introduce a new rule on the taking of blood samples when, for example, somebody enters casualty unconscious but might be the perpetrator of a fatal road accident as a result of drink-driving. I had many discussions with the BMA ethics committee in the run-up, and we eventually got a solution. It seemed unfair that somebody could go into the mortuary of a hospital having been the victim of a drink-driver, whereas the drink-driver could go into casualty with all the protections that have been mentioned.

Tim Boswell (Conservative, Daventry)

I am grateful to my hon. Friend for reminding the Committee of that. Such areas are very difficult to negotiate. We should not demonise the medical profession, but nor should we give it carte blanche. The Committee is picking its way through. I hope that the Minister will reflect on what has been said and on what others may wish to add this morning. We can then hammer out something with which we can all be happy.

Rosie Winterton (Labour, Doncaster Central)

I begin by welcoming you to the Committee, Mr. Hurst. I am looking forward to serving under your chairmanship.

The purpose of clause 31 is to define what kind of research involving people who lack capacity to consent can be approved. Subsection (2) sets out the first requirement: that

''research must be connected with a condition which—

(a) affects P, and

(b) is attributable to the impairment of, or disturbance in the . . . mind''.

My right hon. Friend the Member for Rother Valley made an important point about the grey area surrounding the word ''attributable'' in the clause. He pointed out that we might have not covered absolutely what research might be done into causes. We have noticed that that needs clarification and I assure him that I will consider whether we need to clarify that issue further.

The hon. Member for Daventry (Mr. Boswell) made a point about best interests and the scope for research. The best interests test will apply to acts done or decisions made for or on behalf of P, and the application of that to research is difficult. I

acknowledge that to define what might be in general best interests is more difficult—for example, in research projects it will not always be possible to prove that something will be of direct benefit to P, because then it would be a treatment rather than research.

The hon. Gentleman asked about whether blood taken for one purpose could be diverted to another. That touches on some of the points that we have made about whether research would be unduly invasive. Clearly, if blood samples are being taken for one purpose, such as diabetes testing, a research ethics committee might give the go-ahead for those samples to be used, or for a little extra blood to be taken, for a research purpose. However, if conducting the research meant that hourly blood samples had to be taken, a research ethics committee might feel that that was unduly invasive. The Human Tissue Bill, particularly schedule 2, covers some of the issues about samples taken for one purpose being used for another where there are public health issues.

My right hon. Friend was right to raise the point about needlestick injury, and it is important that we look at that. Some of that is covered by clauses 4, 5 and 6, and some of it may cross over with the Human Tissue Bill.

Question put and agreed to.

Clause 31 ordered to stand part of the Bill.

Clause 32 - Consulting carers etc

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 45, in clause 32, page 18, line 19, leave out 'or is P's deputy'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to consider the following amendments: No. 181, in clause 32, page 18, line 20, at end insert

'but a deputy shall not be able to consent to research under 31(4) unless the court has conferred on the deputy express authority to that effect.'.

No. 182, in clause 32, page 18, line 21, leave out subsection (7).'.

Tim Boswell (Conservative, Daventry)

In a sense, these discussions all hang together. Clauses 32 and 33 relate to safeguards for P if P is participating in a research project. By definition, P lacks capacity if those clauses apply. Amendment No. 45 touches simply—or perhaps not so simply—on the independence of persons who may be consulted about that.

There is a welcome provision in clause 32 for carers and other related persons to be consulted. Subsection (6) refers to

''the donee of a lasting power of attorney'',

who might well be a relative of the person who executed that LPA, so it would be ridiculous to rule them out of being considered as the relevant carer. I ask the Committee to pause and think about the deputy, however, because that person is appointed by the court. He or she may well be a professional person—one who is involved, for example, in social services—who is appointed because there is no attorney and P lacks capacity. People may feel that

there is a potential clash of interest for the deputy, who may have other commitments and be guided by his own professional codes or his employers' instructions, and thus may not be able to give an unfettered view. More particularly, as the Committee may realise, even if that person can act in good faith on behalf of the person for whom he is the deputy, other people from outside might question whether he is truly independent. There are a number of solutions to that problem.

I invite the Minister to take this matter away, because I do not want to re-open the debate on clause 31. However, in particularly difficult cases, it may be sensible for the court or a deputy appointed for the specific consideration of the research project to be right outside the box. In such circumstances I would be relaxed about dealing with somebody who was already a court deputy. I am not clear whether, under the proposed legislation, it would be possible to have two people with that formal function in different respects, or whether the court could appoint an independent person who is not called a deputy for that purpose.

I do not want to speak about this at length again, but during earlier discussions I suggested a ''mixed economy'', with as many people involved as might reasonably be possible. It would be all right to use a court deputy, provided that there was another person outside the box of whom it could not be said that they were already committed, or compromised, in taking the decision or giving the advice. I realise that these are difficult matters, but there are a number of ways of solving the problems and the Minister needs to reflect about things, not least because of her concerns about the sensitivity of research going on at the very edge of what might be deemed to be in the person's best interests. That is an underlying principle of the Bill. She needs to reflect on an overt clash of interests that might arise from the drafting of the Bill, or on any potential charges of misconduct that might be levelled at a deputy, even when they were giving advice with the best of motives and in good faith.

It is important to state that we are talking about a person on whom research may be performed, but who lacks capacity. It is extremely important that nobody should be seen to be manipulating the situation to his or her own advantage and not in the best interests of the person involved. We have to maintain that underlying principle throughout these clauses.

Tom Clarke (Labour, Coatbridge and Chryston)

I rise to speak in favour of amendments Nos. 181 and 182, which are probing amendments tabled to enable my hon. Friend the Minister of State to set out in more detail the Government's thinking on the appropriate safeguards to protect incapacitated people from exploitation.

I am concerned, in amendment No. 181, about a court-appointed deputy deciding whether an incapacitated person should take part in research that does not directly benefit P unless the court has conferred on the deputy express authority to that effect. I would welcome comment from my hon. Friend the Minister as to when she thinks it might be

appropriate for a deputy to make a decision about research on P's behalf, and whether she thinks that such an occurrence might be common.

Amendment No. 182 deals with my concern about clause 32(7). It is worth noting that the title of that clause is ''Consulting carers etc'', yet subsection (7) gives researchers the right to ignore what carers say are P's wishes and feelings—that P does not want to take part in research—and go to the Court of Protection to obtain permission anyway. That requires an explanation.

Given the absolute need to err firmly on the side of caution, if the researcher knows that P is unlikely to want to take part in research, my gut feeling is that that should be the end of it. I would welcome hearing what my hon. Friend thinks about this, and in particular whether she thinks it likely that a researcher would go to the Court of Protection to get permission to undertake research on P if that researcher knew, as far as possible, that neither P nor P's family would like to take part in that research. That is an extremely important question.

I would like my hon. Friend to give us the benefit of her thinking on these probing amendments.

Angela Browning (Conservative, Tiverton and Honiton)

I support the amendments to which the right hon. Gentleman has spoken. I have huge reservations about this section of the Bill. I am not totally opposed to people who lack capacity participating in research that benefits a third party, but the question of giving permission, and who gives it and in what circumstances, must be absolutely watertight. I share his concern.

My concern is that all too often the medical profession is terribly gung-ho about research and that sometimes it is difficult for people to feel that they are getting a genuinely independent second opinion. Particularly for the person giving permission, the medical detail and the science behind it might not be fully understood. As a rule, we still tend to take it on trust that what is being suggested is right. That is especially the case when somebody is an in-patient; I am thinking in particular of when P is an in-patient. There are feisty old things like me who always challenge and question, but probably not enough of us do so.

In the medical profession, second opinions have not always necessarily been independent. They have often been based on the old-boy network; people have relied on someone they know to give them an endorsement. Therefore, the Bill should contain checks and balances so that the person acting on P's behalf—whatever the relationship—has the opportunity to ensure that the advice is truly independent.

I support the two amendments tabled by the right hon. Member for Coatbridge and Chryston. They are intended to strengthen this part of the Bill, about which I have grave concerns. I have a horrible nagging feeling in the back of my mind that if we do not get this absolutely right, for all the reasons that have been given we will open the door to situations that we will find unacceptable. We are dealing with somebody who

has lost capacity and with regard to whom any treatment, therapy or invasion will be for somebody else's benefit. That is not a bad thing in principle if we can place our hands on our hearts and honestly say, ''If that person had capacity, they would say yes,'' or, in this case, the person acting on their behalf would say yes.

I want to raise an issue about the next of kin. Often, people lose capacity during their stay in hospital; they may be compos mentis when they go in and then lose capacity while they are an in-patient. When they are admitted, they are asked not about all the detail that we have before us now but, ''Who is your next of kin?'' That is what they write down on a hospital admission form. However, the next of kin may not be the person who will ultimately be consulted under the terms of this legislation. Therefore, it is quite possible that the next of kin may have a view—and, I assume, may still have a legal view—on P, but that they may not be very much involved in this type of decision-making.

The next of kin may be a frail spouse who is unable to visit regularly but still has capacity. They may be in a residential home. That is particularly the case with regard to elderly couples: when one goes into hospital, the other might be in residential care but cannot visit. Legally, they may be the person who should be consulted, but they will not be around.

10 am

I wonder how the hospital would get right the balance between the next of kin whose name had been written on the admission form and some other person who would then appear. If the other person had to appear on P's behalf, it seems only right and proper that they should get the right authority to make decisions, give P's view or sanction things to happen on P's behalf. The issue worries me considerably.

Rosie Winterton (Labour, Doncaster Central)

As Committee members have said, clause 32 deals with the arrangements for seeking agreement for individuals to be part of the research study, once that has been approved. It sets out the importance of consulting those who are best placed to comment on the likely wishes and views of the person who lacks capacity before that person can take part in that research.

The clause also sets out an important safeguard: if the carer or nominated individual consulted advises against involving the person in the research, that person cannot be a participant—it will be as simple as that. The code of practice sets out in more detail the requirements for consulting on an individual's involvement in research.

The amendments focus on providing safeguards for people who lack capacity and on ensuring that they are protected against inappropriate involvement in research. I fully agree with the intention underlying the amendments and with the points that right hon. and hon. Members have made. We want to get the safeguards right.

Amendments Nos. 45 and 181 focus on ensuring that a deputy could not be consulted on P's involvement in research. Amendment No. 182 would remove researchers' right to contest in court a decision on non-participation. I have given serious thought to

those issues and say up front that I want to consider seriously the points made in Committee. I have reservations, which I will go through, about accepting the amendments as drafted, but I certainly agree with their spirit.

On amendments Nos. 45 and 181, I acknowledge the concern of the hon. Member for Daventry and of my right hon. Friend the Member for Coatbridge and Chryston to protect a person who lacks capacity from a decision by a court-appointed deputy whom they had not chosen to represent them. I also take on board the points made by the hon. Member for Tiverton and Honiton (Mrs. Browning).

Clause 32 makes it clear that a researcher would have to take steps to identify someone, other than a person acting in a professional capacity, who cared for the incapacitated person and would be willing to be consulted on the incapacitated person's participation in an approved research project.

It is clear that the role of the consultee would be to consider what was involved in the project and what the incapacitated person would feel about being involved. To do that, the person consulted would have to be made aware of the aims of the research, the procedures involved and the risks or inconvenience that might ensue. They would then have to give advice on whether the person without capacity should take part and on their wishes and feelings about the project. Importantly, the consultee would need to ensure that any previous statements that indicated a refusal to be involved in research, including any advance decisions, were respected.

Tim Boswell (Conservative, Daventry)

The Minister is, very helpfully, setting out some conditions. Does she agree that, as the normal practice of a research ethics committee and under the protocols that it establishes for research, those proposing the research should set the conditions out in writing, and in a clear format, for the consideration of the independent person? That is unless there is some urgency condition that is separately covered. Some of us are concerned that words may be whispered in corridors rather hastily and that people may feel that they have not had time to consider the decision. If a case involves an independent person, it is important that an audit trail for that decision be established.

Rosie Winterton (Labour, Doncaster Central)

What is important is that research ethics committees stick to the principles laid out in the Bill and draw attention to them when setting out how research is to be undertaken. The hon. Gentleman will see that clause 31(6) says:

''There must be reasonable arrangements in place for ensuring that the requirements of sections 32 and 33 will be met.''

As I have said, in such circumstances, the consultee will certainly need to ensure that previous statements are respected, including any advance decisions to refuse to be involved in research.

In relation to research, it is important that the consultee knows the person well as a carer or is otherwise interested in their welfare. For that reason, the Bill states that when someone is appointed a deputy or has a lasting power of attorney, it does not

automatically follow that they cannot be consulted on research if they otherwise meet the requirements for a consultee. As we have said, deputies and attorneys may often be a parent or spouse, or may know the person better than anyone else.

My worry about accepting the amendment as drafted is that it could have the perverse effect of denying a close relative or spouse any direct say in P's involvement in the research. That in turn might mean that the researcher had no one else to turn to. He would then have to avail himself of another person, appointed under the guidance in subsection (3). That person would need to have regard to the same factors as any other consultee, but would not necessarily be well placed to reflect P's feelings and wishes other than by consulting the close person who was a deputy—often a paid carer.

However, I am sympathetic to the point made about the possibility of a deputy or a person with a lasting power of attorney who had no real personal interest in P's welfare or care being asked about research. Subsection (2) states that the person consulted must not be acting

''in a professional capacity or for remuneration''.

That would rule out, for example, a solicitor who was handling financial matters for an unbefriended person without capacity.

It is important to consider the issue in the context of the clause, and particularly in relation to the arrangements under subsection (3), so that we can ensure that we have proper safeguards for people who may not have personal knowledge of the person. I ask the hon. Member for Daventry and my right hon. Friend the Member for Coatbridge and Chryston not to press their amendments so that we can consider the matter further.

I understand the concern, expressed in amendment No. 182, to ensure that where a carer or independent person has said that someone should not take part in research that should be the end of it, with no further recourse to the court to overturn the decision. My right hon. Friend asked for some of the thinking behind the Bill. As I have said, I appreciate the concern that if the carer has been consulted and has said no, that should be the end of the matter. However, subsection (7) was included to provide a mechanism whereby disputes could properly be resolved.

If a researcher believed that the research had the potential to benefit the person lacking capacity and wanted to challenge the views of the carer or nominated person, it would be for the court to decide whether the research would be of benefit to P and not disproportionate to the risks. I would expect such an occurrence to be rare and would not wish the provision to override the prior views of the person without capacity as relayed by the carer or person interested in their welfare. To be absolutely clear, the provision should certainly not apply to any non-therapeutic research. However, I will consider carefully whether subsection (7) as drafted is the most appropriate way to involve the court in resolving disputes about beneficial research activity.

We are aware of previous High Court decisions that have authorised experimental treatments under principles of best interests. For example, a case of a young man who suffered from variant CJD went to the High Court. We want to consider how we get the balance between the two, with people saying, ''Well, this may be of benefit, even if somebody else objects.'' At the same time—as my right hon. Friend and others have pointed out—it is important that we respect the wishes of the person, if they have been conveyed very strongly.

In view of the fact that I want to consider all the amendments, I hope that the hon. Member for Daventry will withdraw his.

Tim Boswell (Conservative, Daventry)

I thank the Minister for her response on a delicate issue. Nobody wishes to frustrate useful research, if it is appropriate, but it is also right that we look for safeguards. The Minister has approached the matter in the right way, both in her acceptance of that general principle and in her readiness to look again at the wording. It is sensible for us to follow her advice.

Tom Clarke (Labour, Coatbridge and Chryston)

Likewise, I have listened carefully to my hon. Friend the Minister, who said on several occasions that she will consider our views seriously. I am sure she means what she said. I am happy to agree to her request, Mr. Hurst, particularly because I am looking forward to catching your eye on new clause 27.

Tim Boswell (Conservative, Daventry)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 32 ordered to stand part of the Bill.

Clause 33 - Additional safeguards

Tom Clarke (Labour, Coatbridge and Chryston)

I beg to move amendment No. 183, in

clause 33, page 19, line 3, at end insert

'or wishes expressed by P in a LPA.'.

The Minister might shorten our proceedings on the amendment by accepting it. However, if she does not, I am sure she will respond carefully to the points that I am about to make. The amendment would be an additional safeguard to the clause in that it recognises the role that an LPA could play alongside an advance decision by setting out P's wishes and feelings about taking part—or not taking part, which is just as important—in particular research. It would ensure that LPAs had parity with other forms of advance decision making about research. I look forward to hearing her response.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I support the amendment, which would achieve a helpful further development of the role of LPAs in research. LPAs could be used in such a way because it is up to individuals to decide what they want to stipulate in such procedure. Has the Minister been

persuaded by the representations that all members of the Committee have received from Fiona Randall, a consultant at the Royal Bournemouth and Christchurch hospital? Her helpful letter was referred to in previous sittings. She has made some telling points, particularly on the need for such matters to be clearly documented and for advance statements to be clearly documented and signed. Will the Minister comment on that, especially the fact that such decisions need to be in a written form? The Bill clearly states that LPAs must be in a written form, but, according to representations that we have received, advance statements also need to be in a written form.

Rosie Winterton (Labour, Doncaster Central)

Again, I sympathise with the concern of my right hon. Friend the Member for Coatbridge and Chryston to ensure that someone's wishes about participating in research that were set out when the person had capacity should be taken into account when that person lacks capacity and certainly before a researcher involved that person in some form of research project. However, I cannot be so accommodating with the amendment as I have been with other proposals. One of the problems with the amendment is that, in some senses, it is unnecessary because clauses 32(2) and (6) make it clear that a researcher must take reasonable steps to identify someone who, other than in a professional capacity or for remuneration, is engaged in caring for P and consult that person on P's participation.

Clause 32(6) makes it clear that that person could be an attorney, which means it is already clear that, if P wished his attorney to be consulted on participation in research, that should happen. The amendment has mistaken the reason for an LPA. In making an LPA, a person is not necessarily setting out his wishes or feelings, but giving another person the authority to make specified decisions on his behalf and to give substitute consent. If someone wished to set out his feelings and wishes about research, an advance statement would be the appropriate place to do that.

Tim Boswell (Conservative, Daventry)

If someone had appointed a person as his attorney, but at a time when he had capacity and that appointment was included in a deed that specified conditions for research, it would be an advance statement of his intentions. It would be unethical or improper for the attorney to go against those wishes, so the attorney could not make a decision to involve the person in a research project anyway.

Rosie Winterton (Labour, Doncaster Central)

The Bill makes it clear that an advance decision to say that someone did not want to participate in research has to be respected. It allows for attorneys to be consulted as part of the process, but clearly to give an attorney powers in respect of research, without safeguards, might remove some safeguards from the incapacitated person's participation because the decision would be a substitute decision made as though by a person with capacity. We understand the concern to ensure that an attorney should be fully consulted when appropriate, which relates to our previous discussion. As I said, the

Bill already requires that the attorney should be consulted—a fact that we shall reiterate in further guidance.

As for the point made by the hon. Member for Sutton and Cheam about advance decisions under the Bill, a clause states that the wishes in advance decisions about research must be respected. We want to ensure that there is flexibility for an individual to be able to reflect on what P might have wanted in those circumstances. There is the ability to state wishes and feelings in advance decisions. We want to retain that flexibility, but also to be able to take full account of the wishes and feelings of the individual, although it will not necessarily always be through an LPA that those wishes and feelings are reflected.

I hope that my right hon. Friend the Member for Coatbridge and Chryston accepts our concern that we do not want to bypass some safeguards in the Bill by allowing substitute consent in respect of research. I ask him to withdraw the amendment.

Tom Clarke (Labour, Coatbridge and Chryston)

I am particularly interested in my hon. Friend's definition of the role of attorneys with regard to this aspect of advance decisions and the Committee probably finds her explanation helpful. I realise that the mistake I made when speaking to the amendment was not to say that it was probing. Each time I probed, however, I got something, so I have received a helpful response. In that spirit, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 33 ordered to stand part of the Bill.

Clause 34 - Appointment of independent consultees

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to move amendment No. 170, in

clause 34, page 19, line 11, leave out subsection (1) and insert—

'34 Appointment of independent advocates

(1) The appropriate authority must arrange, to such an extent as he considers necessary to maintain the principles set out in section 1 of the Act for independent advocates to be available to assist a person (''P'') when another person (''D'') is considering doing an act, or making a decision to do an act.

(2) The assistance available under the arrangements must include—

(a) assistance to permit and encourage the individual 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;

(b) assistance to express the individual's past and present wishes and feelings, beliefs and values and other factors which he would consider and are relevant to the decision or proposed action if he were able to do so;

(c) assistance to maintain the principles set out in section 1 of this Act.'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss the following: Amendment No. 171, in

clause 34, page 19, line 16, leave out 'of independent consultees' and insert

'or recognition of independent advocates for the purposes of this Act'.

Amendment No. 172, in

clause 34, page 19, line 17, leave out from 'independent' to end of line 18 and insert 'advocates'.

Amendment No. 173, in

clause 34, page 19, line 20, leave out 'consultee' and insert 'advocate'.

Amendment No. 174, in

clause 34, page 19, line 22, leave out 'consultee' and insert 'advocate'.

Amendment No. 175, in

clause 34, page 19, line 25, leave out 'advice' and insert 'support'.

Amendment No. 176, in

clause 34, page 19, line 42, at end add—

'(9) The provision of assistance may result in the proposed decision or action not taking place under the provisions of this Act.

(10) Nothing in this section obliges P to accept the assistance offered by an independent advocate.'.

Government amendments Nos. 224, 227 and 233.

New clause 3—Advocacy service—

'(1) The appropriate authority must make arrangements to secure advocacy in decisions relating to—

(a) making and reviewing of care programmes

(b) decisions of residence.

(2) the appropriate authority must fully note decisions made in these matters and the reasoning behind them.'.

New clause 4—Duty of care of a local authority—

'Where a local authority have reasonable cause to suspect that an adult who lacks capacity who lives, or is found, in their area is suffering, or likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the adult's welfare.'.

New clause 27—Appointment of independent advocates—

'(1) The appropriate authority must arrange, to such an extent as he considers necessary to maintain the principles set out in section 1 of the Act for independent advocates to be available to assist a person ''P'' when another person ''D'' is considering doing an act, or making a decision to do an act.

(2) The assistance available under the arrangements must include—

(a) Assistance to permit and encourage the individual 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.

(b) Assistance to express the individual'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.

(c) Assistance to maintain the principles set out in section 1 of this Act.

(3) The appropriate authority may make regulations—

(a) as to the appointment or recognition of independent advocates for the purposes of this Act.

(b) as to the functions of independent advocates in relation to sections New Clauses 2 and 3.

(c) that a person may act as an independent advocate only in such circumstances, or only subject to such conditions, as may be prescribed;

(d) for the appointment of a person as an independent advocate to be subject to approval in accordance with the regulations.

(4) In making arrangements under subsection (1), the appropriate authority must have regard to the principle that support in relation to a proposed act or decision should, so far as practicable, be given by a person who is independent of any person who will be responsible for the act or decision.

(5) The arrangements may include provision for payments to be made to, or in relation to, persons carrying out functions in accordance with the arrangements.

(a) For the purpose of enabling him to carry out his functions, an independent advocate—

(i) may interview in private the person he has been asked to support and

(ii) may examine any record of a prescribed kind which the person holding the record considers may be relevant to the independent advocate's investigation.

(6) In this section and section 35, ''the appropriate authority'' means—

(a) in relation to the provision of the services of independent advocates in England, the Secretary of State, and

(b) in relation to the provision of the service of independent advocates in Wales, the National Assembly for Wales.'.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I shall take a leaf out of the book of the right hon. Member for Coatbridge and Chryston by saying immediately that the amendments are intended to probe the Government. I hope to test his theory and find out whether that evokes a more positive response, although perhaps the theory works for some and not for others. Nevertheless, that is the intention behind the amendments, although we also want to help to provide greater clarity on the purpose of, and intention behind, independent consultees, which is what this clause and the subsequent three or four clauses deal with. We also want greater clarity on the issue of advocacy, which is a cause of great concern for many organisations watching our deliberations and awaiting the Minister's response with interest.

Advocacy is one of the matters that the Joint Committee, appointed last year to scrutinise the draft Bill, had occasion to look at in great detail. In almost every submission that we on the Joint Committee received—there were perhaps one or two exceptions—the view was that advocacy was one of the keys to realising the potential of what was then the draft Mental Incapacity Bill. Advocacy was a means of enabling people to have as much autonomy, and realise as much of their independence of action, as possible. Having independent advocacy as a right was to be a key part of that. The organisations that made those points to us included the Making Decisions Alliance, People First, the Association of Directors of Social Services, the Law Society and Citizens Advice. The Disability Rights Commission also made clear representations on the Bill, which I will refer to later.

In the Joint Committee's evidence sessions, it was clear just how fragmented, piecemeal and patchy advocacy services are. In parts of the country, there are advocacy services par excellence, which are beacons that provide a model that others could follow. In some areas, such services are frankly ropey, while in others there is no discernable advocacy service. The picture across the country is variable. To date, the Government's approach has been to respond to particular interventions and amendments tabled to legislation, often by Government Members.

The Government have extended rights of advocacy, but have done so in fairly narrow terms. For example, the last but one piece of NHS legislation provided for the independent complaints and advocacy service. Some would argue that that is a fairly narrow interpretation of what advocacy is all about, because the focus of that service is on facilitating use of the

complaints process and supporting people through it. My concern, and the reason for the amendments, is that to many people the provisions in the Bill are not even a form of advocacy. At very best, they are a narrow interpretation of what advocacy is about.

Tim Boswell (Conservative, Daventry)

I know that the hon. Gentleman shares my interest in learning disabilities generally. After the publication of the White Paper and the Government's strategy on learning disabilities, ''Valuing People'', we made similar points about the need for advocacy. Does he agree that the subsequent experience has been less than satisfactory or encouraging, if we apply those points to the Bill?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

That is a fair comment. The aspirations set out in the White Paper rightly secured cross-party support; the idea of advocacy networks is certainly supported. Undoubtedly, one of the Government's concerns about putting advocacy rights in any legislation is the cost. I want to address that point in a moment. As I understand it, the resourcing that went into the implementation of the policy intentions behind the White Paper ''Valuing People'' added up to about £8,000 per local authority. It is hard to see how a meaningful advocacy service could be put in place with such a budget.

It is interesting that the Joint Committee was given quite a bit of evidence pointing towards the experience in Scotland, where there has been a move to develop local advocacy strategies, and where quite a bit of work has been driven, at least in part, by statutory requirements much more broadly drawn than those in English and Welsh legislation.

I will come back to the Scottish legislation, but it is worth drawing attention to the issue of resources, which was considered by the Joint Committee and leads to some questions that I would like to put to the Minister. The Joint Committee report said:

''In answer to a question about the costs involved if a right to independent advocacy was included in the Bill, Health Minister Ms Rosie Winterton said ' . . . quite frankly, it would be extremely difficult to envisage that there would be the scale of resources available . . . To say that we could look at the whole range of people who would be covered by the Bill and imagine that in every case there may be an advocate would be unrealistic for us'''.

The questions arising from that have been put by the Making Decisions Alliance to Ministers and officials for some time. Will the Minister tell us the estimated number of people who will qualify for an independent consultee now? Some estimates must have been made, as the figure of £6.5 million has been given as the cost. It would be useful to know what they are.

What would be the estimated cost of providing an independent consultee for each individual? What has been assumed to be the average cost of providing an independent consultee service? Given the regulation-making power to extend the independent consultee service, does the Minister have a view on whether the £6.5 million mentioned in the explanatory notes would be sufficient first and foremost to cover the proposal that it should deal with those who are ''unbefriended'', but also to allow for that to be extended? How much

money would be left to support other groups who would benefit from having an independent consultee? Some illumination of such issues, and an idea of how many others the Minister thinks might come under the remit of the amendments would be useful when we try to understand how the Government feel that the cost would be unsustainable to them and the taxpayer.

The recommendation of the Joint Committee was clear on the question of independent advocacy. It said:

''We are convinced that independent advocacy services play a essential role in assisting people with capacity problems to make and communicate decisions; helping them to enforce their rights and guard against unwarranted intrusion into their lives; providing a focus on the views and wishes of an incapacitated person in the determination of their best interests; providing additional safeguards against abuse and exploitation; and assisting in the resolution of disputes.''

The issue of disputes has not been adequately factored into the debate about cost. Unless we build low-level dispute resolution into the decision-making processes, the danger, in an increasingly litigious society, is that more cases than necessary would go to court. A more widely drawn advocacy service provided by statute as of right appears an expensive option. However, given what the Bill will, rightly, release and unleash, I suspect that such an option could mean that costs would be better controlled, and outcomes better from the point of view of the person about whom decisions are made.

Angela Browning (Conservative, Tiverton and Honiton)

I fully support what the hon. Gentleman has said. More and more cases going to the courts would be a matter not only of cost, but of time. There will be a backlog; people about whom there are urgent and critical decisions to be made will be in a long queue waiting for their slot at the court. That happens now to a degree with tribunals, but this would be more severe than that.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The hon. Lady is right to pull me up on that. Cost is one factor, but there is another cost—the cost of delay and, in many such decisions, the stress and distress that that causes to the individual, and to other family members and concerned and interested parties.

Joan Humble (Labour, Blackpool North and Fleetwood)

We are all agreeing about the need for advocacy and the help that that can give. If advocacy services intervene at an early stage they can prevent people from forming opposing camps. If a dispute is going before the courts, those camps become increasingly entrenched, and people become increasingly bitter; they hold to their positions without wanting to discuss them in any meaningful way, and the person at the centre is often bewildered by it all. Therefore, advocacy services are very important for early intervention and early dispute resolution.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The hon. Lady makes the point more eloquently than I could. I hope that the Minister will keep it in the forefront of her mind when she responds to this debate, and that she will pick up the spirit of the amendments if it is not possible to incorporate the literal letter of them into the Bill.

In their response to the Joint Committee recommendation that I have just read out, the Government said:

''We are working with stakeholders to explore more fully the range of advocacy available, how it is most effectively used and how it might interact with the Bill. The underpinning principles of the Bill in themselves support the objectives of advocacy.''

That begs a question or two, which I hope the Minister will respond to now. What was the outcome of the process that was clearly outlined in that response? Was it simply the consultee proposals in the Bill, or is there still scope for further movement on this? The Government acknowledge that the principles set out in clause 1 and the best interests principle in clause 4 speak to the issue of advocacy, so will the court eventually end up setting public policy in this area by simply making a common law right to advocacy by interpreting that to have been the intention? The Government response states that that was the policy intention. Are they happy to leave such decisions to be made by the court, or would it not be better for Government to be clearer about things and to provide the enabling powers in the Bill?

I hope that one of my concerns can be addressed in this sitting. Confusion is arising about the role of the Bill's independent consultee and what most people who have an interest in public policy in the area of advocacy believe advocacy to be. The explanatory notes state:

''The consultees will act as a form of 'advocate' as they are understood in the social care sector.''

I want the Minister to say who in the social care sector recognises an independent consultee to be a form of advocate.

Tim Boswell (Conservative, Daventry)

Does the hon. Gentleman agree that there is a latent confusion between the role of a specialist second opinion from a professional person and the role of an independent consultee or an advocate? Those three concepts seem to have slid almost seamlessly into one another.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I will come on to that shortly, because there is a conflation between advocacy and the independent appointee type of function that the consultee seems to be fulfilling.

It would be useful if the Minister told us which organisations say that they genuinely see the independent consultee as a form of advocate. I have not looked at the Social Care Institute for Excellence website; it may have surprised me by saying that it shares the Government's view. Has the Social Care Institute for Excellence expressed an opinion? Was it consulted as part of the process? Clearly, many independent agencies—the Disability Rights Commission and others—do not regard the role as a form of advocacy, yet it has been used in an interchangeable—dare I say, almost casual—way in our deliberations on the Bill.

I had the misfortune to miss our third sitting, but I have read the transcript of those exchanges. During the Minister's response, the independent consultee was readily transformed into an advocate. It is important not to blur such ideas. The Disability Rights

Commission has probably provided all members of the Committee with some definitions of advocacy. It says that

''advocacy can be defined as an individual being supported to express and communicate choices, and to have these choices respected and acted on.''

It gave three broad categories of advocacy, such as self advocacy,

''where people are supported to make known their own views and choices, to speak up themselves regardless of how they communicate.''

Has the Department reflected on a question that I asked at our first sitting, when I referred to support for communication? I asked whether a public authority will be allowed to take into account its resources when it has to decide whether it can provide the communications wherewithal to enable someone to communicate his views, wishes and feelings. That is even before a package of care is put in place, but at the stage when the assessments are being made. How can a person exercise his right to be a party to the assessment process if he is not supported with communications aids and so on? I asked about that earlier, and if there has been further thought on the matter, it would be useful to know whether resources can or cannot be taken into account when providing the communication facilities.

The second definition of advocacy was citizen advocacy, in which

''an independent person, without conflicts of interest with service providers, advocates on behalf of another.''

The final form is peer advocacy, in which

''one person who has the same experiences or has faced the same discrimination as another person, advocates for her/him.''

I recognise such definitions, as will other members of the Committee—but more important than that is the fact that they are recognised by those who campaign for and with disabled people, and those who are themselves disabled. Independent consultees do not fit within those models of advocacy, and it is important that we make such a distinction in our debate.

Access to independent advocacy is essential if the Bill's full potential is to be realised, but it is the missing element. It is crucial to making a practical reality of the principles in clause 1, which the Government acknowledged in their response to the Joint Committee were a driver towards advocacy. In Scotland, a statutory provision under the Mental Health (Care and Treatment) (Scotland) Act 2003 states that

''Every person with a mental disorder shall have a right of access to independent advocacy ''.

The Act gives local authorities and national health service bodies the clear duty to ensure that everyone with ''a mental disorder'' has access to independent advocacy services. That so important in making a reality of clause 1(2), which states:

''A person must be assumed to have capacity unless it is established that he lacks capacity.''

Clause 1(3) states:

''A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.''

How can that be judged to have happened if advocacy is not part of the package? Clause 5 provides for the protection from liability of carers and professionals in circumstances when no formal powers are required. Although many decisions go beyond everyday matters that are perhaps less serious than those set out under clauses 35 to 37, they are nevertheless important to the individual whose life is affected by those decisions. They go to the heart of a person's health, welfare and well-being. Safeguards are needed, and the views of the vulnerable person without capacity must be sought.

Citizens Advice has evidence showing that where care plans are reviewed and cases are closed, a vulnerable person in the community suddenly loses services, although they need them, and does not have the means or support to advocate and get them provided again. Citizens Advice provides another example of a proposed move following the death of a carer—the proposal being that the person is moved from the area in which they have established a life and the only home that they have ever known. In such circumstances, advocacy has a part to play. An independent consultee may have a role, but it is important that someone is there for the person.

Angela Browning (Conservative, Tiverton and Honiton)

The point that the hon. Gentleman is making very well is that when we talk about advocacy, we are talking not just about somebody who is there to assist P to articulate their views, but someone who will be proactive on behalf of P and will either ensure that the sort of scenario the hon. Gentleman just described does not happen, or do something to rectify it. One of the most worrying questions is who will be proactive on behalf of P, rather than just a facilitator?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

That is right. There is concern about the role of the independent consultee, because they are there to give advice to decision takers, not to play the role that the hon. Lady has just described. That is the missing part of the equation that the Bill needs to fill.

It is not just the unbefriended to whom the provision needs to apply. Evidence from Citizens Advice points to disputes in families and occasions on which there is a genuine dispute about what constitutes ''best interests''. As the hon. Member for Blackpool, North and Fleetwood (Mrs. Humble) has rightly reminded us, as we move down a more litigious route, people take ever more entrenched positions from which it is much more difficult for them to shift. It is essential that an advocacy service be involved early on to avoid such disputes degenerating into even more costly and damaging legal proceedings. The Law Society provides an example of a dispute in the family or between the family and clinicians over medical treatment and suggests that the rights to advocacy should be included in assessments, including those made under section 47 of the National Health Service and Community Care Act 1990. We will deal with that when we deal with later amendments.

We have already discussed the Bournewood gap and the Bournewood judgment, on which some useful exchanges were initiated by the hon. Member for

Tiverton and Honiton. The Court identified a number of safeguards that were missing from our legislative framework, including having an advocate and a nominated person—that takes us back to the intervention made by the hon. Member for Daventry. The proposed independent consultee represents an attempt to conflate those two missing safeguards, but we need to have both. Citizens Advice draws a parallel with a guardian ad litem and the service provided in the children's courts. The guardian ad litem does not act for the child, but advises the court. That is what the independent consultee is doing in a number of settings under the Bill. In respect of the guardian ad litem service and the children's courts, the child has an independent representative—someone who is there to ensure that their views, wishes, feelings and needs are central to the discussion in the court—but that representative is separate from the guardian ad litem.

There is a need to unpick the issue and be clear about what consultees might do if they remain a feature of the Bill, and how they differ from and are not an answer to the need for independent advocacy. The concerns will persist until that is clarified in the Bill. Many who are campaigning for advocacy to be developed, for an end to the patchiness of provision and for the quality and standards throughout the country to be raised are genuinely concerned that having independent consultees in a statutory framework without advocacy will send a signal to people who commission such services locally that consultees are the priority in terms of commissioning, and resource allocation and resources for independent advocacy will be squeezed as a consequence. Amendment No. 170 and paving amendments Nos. 171 to 175 therefore attempt to introduce advocacy into the Bill. New clause 3 does the same, but without removing the role of the consultee from the Bill.

New clause 4,which was suggested to me by the Law Society, is about how we give local authorities a clearer statutory duty to investigate and act on allegations of abuse, so it is rather different and separate from the issue of advocacy, although advocacy may play a part in such investigations. The purpose of the new clause is to place a public duty on local authorities to investigate. It is modelled on provisions in the Children Act 1989. At the moment, there is no equivalent provision in statutory law relating to vulnerable adults.

It is right that our debate has focused on advocacy, and I do not want to talk about the new clause at great length, but it is important that we do not lose sight of the importance of elder abuse and the abuse of vulnerable adults. Earlier this year, the Health Committee conducted a short inquiry into elder abuse and came up with some disturbing findings and important recommendations. To this day, there is no accurate figures for the abuse of vulnerable adults and elder abuse in this country. The most up-to-date figure is more than 10 years old, but it suggests that, at any one time, about 500,000 people are the victims of abuse, ranging from assault, psychological pressure

and torture, to theft, intimidation, sexual assault and many other forms of abuse, by formal care staff, informal carers, relatives and others.

The Government's response to the problem was to issue local authorities and the NHS with guidance called ''No secrets'' in 2000, but having examined the issue, the Select Committee concluded that the implementation of that very good guidance was patchy: some local authorities took it seriously, but others did not prioritise it and had not made much progress as a consequence. The intention behind new clause 4 is therefore to give the guidance in ''No secrets'' statutory impetus, and I hope that the Government can respond positively to that intention. When the Joint Committee, recommended something similar, the Government responded by saying that the issue was being dealt with adequately through the ''No secrets'' guidance, but the evidence seen by the Health Committee during its inquiry does not support that contention. It is disturbing that the guidance has not been adequately implemented in many parts of the country, and the new clause is another way of signalling clearly that we want to see it taken more seriously and to give it statutory teeth.

Those, then, are our proposals and the reasons for them, and I hope that the Minister will be able to respond accordingly.

Tom Clarke (Labour, Coatbridge and Chryston)

It is a pleasure for two reasons to follow the hon. Gentleman. First, I very much welcome the fact that we are now discussing advocacy. There is, to say the least, a degree of frustration among the disability organisations that have been following proceedings: as they see it, we have taken a long time to get to this important issue, and I am glad that we have now got to it. Secondly, in speaking to his amendments, which I support, and new clause 27, the hon. Gentleman mentioned Scotland. I would not claim for one second that we have got it absolutely right in Scotland, but we have made considerable progress, largely because we have accepted our responsibilities for pursuing a policy of care in the community and ensuring that the most vulnerable in our society are protected, particularly by the advocacy that we are supporting this morning.

Before speaking to new clause 27, let me refer to the time when I met a group of women who had long been patients in one of those old Edwardian hospitals—Lennox castle, near my constituency. After assessment and after advocates had performed their role in the way that we want them to, those women found themselves living in little houses within a supportive community. It was not one of those places, often called institutions, to which people were sent and perhaps never heard of again. They were living in a new environment, in new homes, with a new lifestyle.

Many of them in earlier days had worked in the shipyards in Glasgow. I asked those women what they thought was the most interesting contrast between their years living in a big institution and the new lifestyle that they now enjoyed. In a Glasgow accent they said, ''They dinnae gie you jabs.'' I shall interpret that, Mr. Hurst; it means that they did not receive injections. That is important, as people are entitled to

know about their medication. I cast no aspersions whatever on the wonderful people who work for the health service, but those women clearly did not have a say in their medication, never mind the lifestyle to which they were forced to become accustomed. It seems that in their case advocacy had made its point. That is why I welcome this discussion.

The amendments on independent advocacy may appear to represent wholesale change in the nature and function of the Bill and its purpose, but I hope that after I have sat down having spoken to new clause 26, my hon. Friend the Minister, for whom I have the highest regard, will agree that what is proposed is the least change possible to make the Bill acceptable to groups involved with disability and older people. With that in mind, it might be worth highlighting what stakeholders have been saying about the Bill. Unlike other provisions, there is considerable accord about how the Bill should be changed if it is to be as meaningful as I believe we all wish it to be.

The hon. Member for Sutton and Cheam has been extremely helpful by referring to the Making Decisions Alliance, a consortium of the country's biggest charities dealing with disability and older people, including Age Concern England, the Alzheimer's Society, Help the Aged, Mencap, the Mental Health Foundation, Mind, the National Autistic Society, Rethink, Sense and Turning Point. In a briefing note prepared for Second Reading, the alliance said:

''We feel the Mental Capacity Bill has the potential to transform people's lives for the better. However, the Government's good intentions are at risk if more emphasis is not given to the vital role played by independent advocates. Without more independent advocacy services to support and protect more people who may lack capacity, there is a danger that this Bill will not be effective.''

If that is true, and the arguments that it is are convincing, that is a great worry to all of us, which we should take on board.

Scope, which is also a member of the Making Decisions Alliance, has put the case a little more bluntly, saying:

''Whilst the Mental Capacity Bill in theory supports the autonomy of the individual, the reality of disablism and the lack of a right to advocacy in the Bill means that the Bill will not achieve this goal, and instead it will help to crystallise the inequality that disabled people face.''

The Disability Rights Commission, an extremely important and well-informed body, has said that it

''remains concerned about the absence of rights to independent advocacy in the Bill. We think the Bill must at minimum provide the right to advocacy for all those that require support when making decisions.''

That is a heavyweight point of view, which we disregard at our peril. The I Decide coalition, a coalition of disability organisations of disabled people, has said that the Bill will

''lead to abuses of our human rights''

unless there is

''a right to independent advocacy to all people who are having any decisions made for them by anybody using the powers given by the Mental Capacity Act.''

This Committee must pay great heed to the Joint Committee that scrutinised the draft Bill, on which several members of this Committee served. Reference has rightly been made to its work several times and I am thankful for the extra contribution to our thinking. After hearing all the evidence from every side of the debate, the Joint Committee concluded:

''We are convinced that independent advocacy services play an essential role in assisting people with capacity problems to make and communicate decisions; helping them to enforce their rights and guard against unwarranted intrusion into their lives''.

The Committee recommended that the Government should

''meet all reasonable requirements, for the provision of independent advocacy services to incapacitated adults affected by the Bill's provisions.''

I am sure that we would all welcome it if the Committee's recommendation were implemented and put into practice with all possible haste.

I have quoted from so many sources because, with great respect to my hon. Friend the Minister, I want to stress, as I did in my speech on Second Reading and have done in various interventions in this Committee, that the issue of independent advocacy will simply not go away—nor should it. No disability group, older people's group, stakeholders consortium, disability alliance or commission thinks that the Government have got the measure right yet. I look forward to hearing from my hon. Friend about who supports the Government's proposals, especially those for consultees.

For disability groups, who have waited 15 years for the legislation—I might argue that they have been waiting even longer, relating it back to my Disabled Persons (Services, Consultation and Representation) Act 1986—independent advocacy is just as important an issue as end-of-life decisions, and both are extremely important to me. Giving access to an independent advocate to someone who wants one is a way of dramatically improving the quality of their whole life—hopefully throughout their life. All the proposals that I have tabled, from new clause 22 to new clause 27, should be seen as a package of measures to meet more effectively the needs of people who lack capacity, and to realise more effectively the enabling ethos that is, rightly, at the heart of the Bill.

I will begin by talking about new clause 27. I recognise that despite what the DRC and disability groups say, in reality we do not have much chance of securing a right to an independent advocate for every disabled person who wants one in every situation in which they want one, even though I stress that I believe that that should be the minimum expectation of the millions of disabled people in Britain whom we are discussing, particularly those with a mental incapacity. That is what the all-party parliamentary group on learning disability believes. I regard it as a great privilege to serve with Lord Rix as the co-chair of that very proactive group. I recognise, however, that politics is the art of the possible. I started by saying that my new clauses on independent advocacy are about making the least change possible to make the Bill palatable to disability and older people's groups. Independent advocates can play a unique and vital role

in maintaining the Bill's guiding principles. We see that in the best practice that we all know exists. New clause 27 would reflect that, while also meeting the Joint Committee's key recommendations.

The new clause also sets out the role of an independent advocate. I shall dwell on that, because it goes to the heart of why stakeholders—the people who will have to implement the Bill—are so concerned about the Government's proposals as they stand. I say that with enormous respect for my hon. Friend the Minister. I hope that she will be able to provide some clarity today about the role that the Government envisage for their new independent consultee service. In the explanatory notes to the Bill, the Government state:

''The consultees will act as a form of ''advocate'' as they are understood in the social care sector. The clauses supplement the powers and duties conferred elsewhere in the Bill.''

In early exchanges with the hon. Member for Tiverton and Honiton the Minister used the terms ''independent advocate'' and ''independent consultee'' as though they were interchangeable. Both those points suggest that by ''independent consultee'' the Government mean what I and disability groups would call an independent advocate. If so, there are some problems, and it is fair that we tackle them openly.

First, the term used by the Government is unnecessarily confusing. Secondly, it wrongly suggests that the Government do not support independent advocacy services in meeting the needs of people affected by the Bill. I am sure that that is not the message that they intend. Thirdly, the prioritising of a new category of advocacy—for that is really what is happening—may have an adverse impact on independent advocacy services already provided by local authorities and others. It seems likely that resources would be taken from another budget to meet the new obligation to provide an independent consultee, and that that would be at the expense of independent advocacy support. That would be highly unfortunate, because on one point we are agreed: although we always welcome new resources, the resources that are available are simply inadequate to deal with the challenge.

In all candour, I would be even more concerned if the Government were deliberately using the term ''independent consultee'' because they did not want an independent consultee to play the role of independent advocate as it is commonly understood in the social care world. That may not be what the Government are doing, but I had to make that point because it is the view of the organisations involved with disability. We are talking about a major change, and if such a change is to be made, the issue must be addressed openly and knowingly.

The Bill says that the function of an independent consultee is to give advice to the body making decisions about the person's best interests; again, that is a matter that the Committee has thought about. There are two points to make about that. The first is that that is not the role of an independent advocate.

The role of an independent advocate is to support a person who may have difficulty making decisions in expressing their wishes and feelings, or to help them as far as possible to participate actively in the decision-making process. Given that such decisions have a huge impact on the quality of a person's life, that is the least that they are entitled to ask. We, too, might be expected to give a positive response.

A basic principle of advocacy is that the advocate does not make any judgments or express any opinions of their own. They may help to ensure that the person is aware of relevant issues that they may not have considered, or speak on behalf of the person to ensure that the person's views are heard and taken into account, but the independent advocate will not make any decisions or judgments on P's behalf. To do so would defeat the whole purpose of having an independent advocate and that, of course, would be wholly unacceptable. The independent advocate is not there to be the decision maker, making a judgment about P's best interests. That is why I am not at all convinced by the Government's recent amendment, which highlights the claim that the role of the independent consultee should be to represent more clearly P's wishes and feelings. At the end of the day, the independent consultee will still have to make a judgment on P's best interests.

The second point, as I commented on Second Reading, is that a number of disability groups suspect that one of the Government's main motivations in introducing the independent consultee service in the draft Bill was to solve the Bournewood issue as easily as possible. The aim was to kill two birds with one stone, but as my hon. Friend the Minister has already made clear, the Government now have to address the implications of the Bournewood ruling properly.

What is even clearer is that if the Government persist with the idea of an independent consultee who would make decisions about P's best interests, it is even more vital that an independent advocate should be seen to represent P's views during the decision-making process. New clause 27 sets out not an absolute right to independent advocacy for people lacking capacity, but a duty for the Secretary of State and the National Assembly for Wales to provide independent advocates to the extent that both authorities can ensure that the guiding principles at the start of the Bill are maintained.

I thank the Committee for its patience in listening to what I have to say. I genuinely believe that I speak for organisations that have taken a close interest in all such matters throughout our deliberations. I trust that there will be a favourable reply from my hon. Friend the Minister. Although the responsibility on the Committee as it considers the Bill is extremely important, I have to repeat that the matter of independent advocacy will not go away.

I offer this thought. I remember sitting in the Committee Room when the 1986 Act was going through. Lord Ashley, a dear friend of many of us in this Room, said that he thought that making progress on these matters, including progress on advocacy,

meant that we had to use the salami method—in other words, to get what we wanted slice by slice. However, I think that even Lord Ashley would agree that after all this time the salami is turning a little sour. Today the Government have the opportunity to redeem themselves, and I invite my hon. Friend the Minister to take it.

Angela Browning (Conservative, Tiverton and Honiton)

I totally support the representations made by previous speakers on the clauses. I am reminded of what the Association of Directors of Social Services told the Joint Committee, of which I was a member, about advocacy. It is on page 87 of the Joint Committee's report. The association said that

''the best interests of a person without capacity would be promoted by easy access to independent information, advice and advocacy. However, they emphasised that Local Authorities did not have the duty or the resources to secure the provision of support and advocacy.''

Under the Bill, independent consultees would be appointed and the appropriate authorities would have to make such arrangements, particularly in respect of the provisions under clauses 35, 36 and 37. We are talking about some of the biggest decisions of people's lives, particularly those to do with serious medical treatment, and with an NHS body or a local authority seeking to provide accommodation.

While the right hon. Member for Coatbridge and Chryston was speaking, I was thinking about the number of case conferences that I have personally attended in which I have had to fight hard to get somebody with the necessary expertise to attend, so that the conference could be meaningful, particularly when it involved making the right decision about somebody's accommodation. I cannot see how there could not be a conflict of interest if a local authority, a social services department or an NHS health provider has to seek out an independent consultee. Presumably, in many cases that would have to be done in short order; such decisions often need to be made, perhaps not in a couple of weeks, but not in a couple of years. Sometimes there is a crisis, such as the example that I cited earlier, when an adult with a learning disability or autistic spectrum disorder lives with an elderly parent who then dies or is incapacitated. Suddenly, somebody has to make a life-changing decision for that person.

I want to add this dimension to the issue. Whatever relationship a carer may have to P—the person who is incapacitated or partially incapacitated—carers too need advocates. They may be acting in the best interests of P—of somebody whom they love very much—but we all know from our casework that carers are often not the best advocates. Sometimes that is particularly so if they are very close to P. It is not that they do not mean to be good advocates, but they may be so emotionally bound up with the case that they need someone with expertise and clarity to be there for them, as well as for P. As a little team, they need that expertise to be brought in.

About two years ago, I conducted some independent research throughout the country on the availability of independent advocacy services for

adults with autistic spectrum disorders. It was extremely patchy. We as Members of Parliament draw on advocacy services to help us with our casework, and I am troubled; the independent advocacy that exists is patchy, sporadically available, and very much based in the charitable sector, where many organisations are unable to plan their budgets in the medium to long term because of the way in which their funding flows through.

If we are to rely on the independent charitable sector to provide advocacy across the piece—for young people with learning disabilities, for adults with long ongoing mental health problems, and for elderly people who need residential or nursing care, or who have a crisis of the sort addressed in the clauses that we are now coming to—I fear that they will not be able to provide the service that is needed. They cannot cope at present, so how will they cope in the future? It is clear from the legislation that there will be an increased need for more services to be provided across a range of disciplines. That increase is right, but I am concerned that the independent consultee is not going to fit the bill.

I will not repeat the excellent representations made by the two previous speakers, because they have summed up the length and breadth of this issue and what is needed. I cannot see how the necessary resources will be put in place. It would be naive to think that the day this comes into law, the charitable sector will be able to ratchet things up and provide this huge resource out of their existing funds. I would like the charitable sector to be the provider of independent advocacy because its organisations are genuinely independent and have knowledge of the discipline that they are interested in, so I am not saying that is the wrong way to proceed. However, I cannot see how they will be able to rise to that challenge, because there is a lack of recognition in the Bill of the resources that are needed to provide independent advocacy.

Clause 34 states:

''The appropriate authority must make such arrangements''.

When I read that, I worry that the appropriate authority will be a statutory body that has a vested interest in the outcome of the case. Where will they get the services from if they cannot buy them in from the independent and charitable sector? They might provide them in-house at arm's length, which would be unsatisfactory because, apart from anything else, the directors of social services have told us that they do not have the resources to do that, and I have not come across any provision in the Bill that allocates additional resources for it to be done.

Tim Boswell (Conservative, Daventry)

I am sure that my hon. Friend has also noticed that the provisions in the Bill simply relate to the giving of advice to local authorities. The advocates have no executive role, nor should they; however, it is open to local authorities to take not a blind bit of notice when the advice is tendered, and that may well happen.

Angela Browning (Conservative, Tiverton and Honiton)

That is right, and I say from the experience of having dealt with casework involving adults with mental health problems and autistic

spectrum disorders that when push comes to shove, if the local authority cannot provide the right outcome, particularly in terms of the care package or appropriate housing or rehousing, ultimately things have to go to court to be challenged and decided. Regrettably, that is happening more often.

One looks to those law practices that have a record in successfully taking on social service departments. They often sort matters out before they go to court.

However, that is not how things should be. If the independent advocate or consultee is not the sort of person who at the end of the day will advise—

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.

Standing Committee A

Clause 34 - Appointment of independent consultees

Alan Hurst (Labour, Braintree)

I remind the Committee that with this we are taking the following: Amendment No. 171, in clause 34, page 19, line 16, leave out 'of independent consultees' and insert

'or recognition of independent advocates for the purposes of this Act'.

Amendment No. 172, in clause 34, page 19, line 17, leave out from 'independent' to end of line 18 and insert 'advocates'.

Amendment No. 173, in clause 34, page 19, line 20, leave out 'consultee' and insert 'advocate'.

Amendment No. 174, in clause 34, page 19, line 22, leave out 'consultee' and insert 'advocate'.

Amendment No. 175, in clause 34, page 19, line 25, leave out 'advice' and insert 'support'.

Amendment No. 176, in clause 34, page 19, line 42, at end add—

'(9) The provision of assistance may result in the proposed decision or action not taking place under the provisions of this Act.

(10) Nothing in this section obliges P to accept the assistance offered by an independent advocate.'.

Government amendments Nos. 224, 227 and 233.

New clause 3—Advocacy service—

'(1) The appropriate authority must make arrangements to secure advocacy in decisions relating to—

(a) making and reviewing of care programmes

(b) decisions of residence.

(2) the appropriate authority must fully note decisions made in these matters and the reasoning behind them.'.

New clause 4—Duty of care of a local authority—

'Where a local authority have reasonable cause to suspect that an adult who lacks capacity who lives, or is found, in their area is suffering, or likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the adult's welfare.'.

New clause 27—Appointment of independent advocates—

'(1) The appropriate authority must arrange, to such an extent as he considers necessary to maintain the principles set out in section 1 of the Act for independent advocates to be available to assist a person ''P'' when another person ''D'' is considering doing an act, or making a decision to do an act.

(2) The assistance available under the arrangements must include—

(a) Assistance to permit and encourage the individual 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.

(b) Assistance to express the individual'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.

(c) Assistance to maintain the principles set out in section 1 of this Act.

(3) The appropriate authority may make regulations—

(a) as to the appointment or recognition of independent advocates for the purposes of this Act.

(b) as to the functions of independent advocates in relation to sections New Clauses 2 and 3.

(c) that a person may act as an independent advocate only in such circumstances, or only subject to such conditions, as may be prescribed;

(d) for the appointment of a person as an independent advocate to be subject to approval in accordance with the regulations.

(4) In making arrangements under subsection (1), the appropriate authority must have regard to the principle that support in relation to a proposed act or decision should, so far as practicable, be given by a person who is independent of any person who will be responsible for the act or decision.

(5) The arrangements may include provision for payments to be made to, or in relation to, persons carrying out functions in accordance with the arrangements.

(a) For the purpose of enabling him to carry out his functions, an independent advocate—

(i) may interview in private the person he has been asked to support and

(ii) may examine any record of a prescribed kind which the person holding the record considers may be relevant to the independent advocate's investigation.

(6) In this section and section 35, ''the appropriate authority'' means—

(a) in relation to the provision of the services of independent advocates in England, the Secretary of State, and

(b) in relation to the provision of the service of independent advocates in Wales, the National Assembly for Wales.'.

Angela Browning (Conservative, Tiverton and Honiton)

I apologise to the Committee because at the end of this morning's sitting I was halfway through a sentence and I cannot for the life of me remember what the first part of the sentence was. That probably shows that I should conclude my remarks about the amendments. There needs to be a demonstration on the part of the Government that there is the political will—

Sitting suspended for Divisions in the House.

On resuming—

Angela Browning (Conservative, Tiverton and Honiton)

As I was saying, it is important to bear in mind political will and whether independent advocacy would enable the Bill's good intentions to be realised, or whether its omission will hamper that endeavour.

I drew the Committee's attention to the report of the Joint Committee, of which I was a member. When the Minister gave evidence to the Committee, she said that the Department had not calculated the costs of independent advocacy because if it was added to the Bill,

''given the range that would be taken under the Bill and the numbers of people involved, she thought that it was unlikely that the necessary resources would be available.''

The political will must be there to make the resources available. There will always be articulate people who know their way around the system and can access independent advocacy on behalf of P or vulnerable people who come within the scope of the Bill. However, the rest will not have that opportunity.

The Minister should consider carefully the Government response to the Joint Committee on advocacy, in which they say:

''The Committee recommended that the Bill should acknowledge the valuable role''

''independent advocacy services''.

Then they say that those who lack capacity and want to assert their rights will be able to do so through a range of services. However, that is not the same as independent advocacy, as colleagues from all parties have so articulately argued today.

I ask the Minister to reconsider. The alternative to independent advocacy is that people will end up going to court and there will be more litigation and tribunals. There will also be a much more lengthy and expensive procedure—with costs attached for the public sector—that will prevent P and vulnerable people who lack capacity fully enjoying the benefit of the principles stated right at the beginning in clause 1. That is at the heart of what we are trying to do to improve life for people who lose capacity.

Joan Humble (Labour, Blackpool North and Fleetwood)

I enter this discussion about advocacy to emphasise just how important I feel its role is. We have already heard some excellent contributions, so I will not repeat what others have said; I will only pick up a few key issues.

It is important that my hon. Friend the Minister revisits the recommendation of the Joint Committee. Time after time during that Committee's deliberations we heard individuals state the importance of advocacy services to the whole Bill, not just a particular part of it. I support colleagues who tabled the amendments because I am concerned that the role of the independent consultee as framed in the Bill is extremely narrow, which is not what the many organisations that have been lobbying for many years about this legislation told us is needed. Why independent consultees? Where did the idea come

from? The Joint Committee was quite clear in supporting the call for independent advocacy; we were not looking at the narrowly focused role for independent consultees that my hon. Friend regards as the one that they should perform under the legislation. Because that role is so narrowly focused, I fear that people will miss out on opportunities that should be there for them under the Bill.

Like other hon. Members, I think that terminology is important. We have already had confusion about differences between court-appointed deputies and people with a lasting power of attorney, and now we have confusion between consultees and advocates. There has to be some simplicity to the process so that the people we are trying to help—people who lack mental capacity, or who have variable capacity, and their friends and relatives—have a much clearer idea of who is there to help them. The more people with more titles doing slightly different jobs there are, the more confusing it is for those we are trying to help.

People like me, who have supported advocacy services for many years, have laboured long and hard to assure people that advocates are not lawyers or people who represent individuals as lawyers do—describing what is best for them. They are the voice of the individual. Other organisations, especially those that represent people with disabilities, have worked hard to draw attention to what advocacy services do. The point at which we start to win the argument it seems to be the wrong time to begin talking about consultees and to introduce yet another term into the subject area.

It is clear from the remarks of many hon. Members that advocacy services around the country are variable. I worry that the Government assume that advocacy services will be available for people who need them. First, some parts of the country do not have advocacy services. Secondly, there are services in some parts of the country that not many people would want to use. Thirdly, if we introduce independent consultees, there is a threat that existing advocacy services could disappear. Many exist on precarious funding. As I have often said, I am the president of Blackpool advocacy services. At our AGM on Friday, the chief executive had to report that an excellent citizens advocacy service that we had run for three years had reached the end of its funding stream. She spends all her time trying to obtain more funding for the excellent services that are being provided. Existing advocacy services have no security.

This Bill is our opportunity to look at the larger picture. We can think about a national framework and what we mean by advocacy services, building on the proposals in the excellent ''Valuing People'' White Paper, which emphasised the need for advocacy services and made money available for them. We should take the opportunity to define terms such as ''advocacy'' and define basic standards. What standards should people be able to expect, wherever they live? People in my constituency are fortunate—I would say that, wouldn't I? Blackpool advocacy services provide some very good services and we

receive excellent feedback. People come to us saying ''More, more, more.'' The Bill will result in more, more, more—but I do not know where we shall find the resources.

Ann Winterton (Conservative, Congleton)

I am interested in what the hon. Lady has to say. The Minister has acknowledged that the funding that might be required will not be available. Does the hon. Lady agree that the voluntary and charitable sector can fill the gap and ensure standards in independent advocacy? One example is the advocacy scheme started by Age Concern in Cheshire some years ago. Many volunteers, including many who had taken early retirement and wanted to be involved, trained and proved to be good independent advocates. Is not that one way forward?

Joan Humble (Labour, Blackpool North and Fleetwood)

The independent sector has a vital role, but there is a need for consistency across the country. The hon. Lady mentions training for volunteers; I have met very committed and talented volunteers who come forward and give their time, but I have seen no national framework for their training. If we start to talk about the importance of having advocacy services all over the country, we must think about the framework and assess how we can best approach the issue.

I am sure that the Minister will suggest that the Bill is not the forum for doing that, but the question then arises: which Bill will be the right one? The subject of advocacy services has been raised in connection with just about every item of health and social care legislation in which I have been involved in the past seven and a half years, and I am still waiting. I do not want to wait 18 years like my right hon. Friend the Member for Coatbridge and Chryston (Mr. Clarke); I want it now, which is why I argue that we should take the opportunities presented by the Bill to examine properly what we mean by advocacy services and how they can contribute in the circumstances covered by the Bill and in other health and social care settings.

My hon. Friend the Member for Aberavon (Dr. Francis) asked me to raise an issue if he could not be present when we were talking about advocacy services. We have all received correspondence from family and carers groups, including some in Wales. They wrote directly to my hon. Friend about an issue that had been raised with members of the Joint Committee by those representing families who felt that an independent advocacy service posed a threat to their role as parents and carers. I assume that they would feel the same about the independent consultees.

It is important that we recognise that parents and informal carers perform a valuable role: many vulnerable people live at home with their families and receive the bulk of their care in that setting, and family members understand their needs very well. One of the challenges for advocacy services and for the independent consultees as set out in the Bill will be how to engage with family members without being seen as a threat. Ultimately, however, the voice of P—the views and wishes of the individual who lacks capacity or has variable capacity—has to be heard, and sometimes the

family might not represent P's voice in the way that P would want. That, if anything, underlines the need for independent advocacy and sensitive advocacy services. I am reminded of a remark made by Ann Rodham, chief executive of Blackpool advocacy services, when she gave her annual report last week. She said that the advocacy services that are offered in my constituency are ''discreet, subtle and confidential''. They have to be. The advocate must not trample on the sensibilities of any of those who are involved in the care of an individual. That is why good advocacy services are so valued: they can pull together many different points of view and ensure that the voice of the individual is heard. I have real doubts that, unless the Bill is altered in some way, that voice will not be heard.

The independent consultee described in the Bill fulfils a different role. He or she is to listen to the individual and to reach a conclusion and represent what he or she thinks are the best interests of the individual in a way that an advocate would not do. There might well be a function for such a person within the terms of the Bill, but I contend that that role is not exclusive and that advocacy services as I understand them can feature too. I am worried that the explanatory notes say that independent consultees perform a function as

'''advocates' as they are understood in the social care setting.''

No, they do not. I want to know where advocacy services, as I and many others understand them, are in the Bill.

I am not asking the Minister to state in the Bill that everybody who might possibly be covered by the Bill has to have an entitlement to advocacy services. No Minister can give an open-ended commitment like that. However, surely there can be a form of words such as has been included in social care legislation that would act as an enabling clause so that, in given circumstances, and using codes of practice, individuals would be made aware of advocacy services, and those advocacy services would be encouraged and developed in local areas.

The Bill offers people enormous opportunities to the vulnerable people about whom we are so concerned, and it could have enormous spin-offs across the social care and health care sectors. I hope that the Minister will seriously consider the excellent amendments tabled by my right hon. Friend the Member for Coatbridge and Chryston and others. Everyone has spoken to them with passion and knowledge.

Tim Boswell (Conservative, Daventry)

The intensity and eloquence that members of the Committee have brought to the debate speaks for itself. People feel strongly about the subject, but I shall not attempt to reinforce or second-guess their arguments.

I start with the speech of the hon. Member for Blackpool, North and Fleetwood (Mrs. Humble). I very much agree with the thrust of what she said and some of the caveats that she mentioned. Probably the strongest thing that she said—I have already said it to the Under-Secretary of State for Constitutional Affairs, the hon. Member for Tottenham (Mr. Lammy), and I shall say it to the Minister of State, Department of Health, the hon. Member for

Doncaster, Central (Ms Winterton)—is that people will need to be guided through the complex terminology of the Bill. They will need to be able to tell the difference between an attorney, a deputy, an independent consultee, a second specialist called in as a second opinion, and so on—and that list does not even include the public guardian or the official solicitor, with whom we will deal in later clauses. The arrangements are extremely complex and one can imagine those who may be on the verge of capacity being terrified by the thought of them and of the difficulty of the decisions that have to be made.

The other warning that I give to the Minister before she speaks to the Government amendments and replies to the debate is that probably the most deadening words in the English language are, ''I'm from the Government. I am here to help you.'' The only exception to that rule or variant on it—I hope that the hon. Member for Lewisham, East (Ms Prentice) will not take it amiss—is someone saying, ''I am from the Whips Office, and I am here to help.''

The distinguishing feature of advocacy—it was brought out not only by the hon. Member for Blackpool, North and Fleetwood but, in a passionate contribution, by the right hon. Member for Coatbridge and Chryston and by Opposition Members—is the need for independence in the process. One of my Front-Bench activities is to keep a friendly eye on the BBC. If it has one distinctive feature, it is independence. In the same way, although everything else can be cut away, the independence of the advocate is important. I hasten to qualify that observation by stating that that is not so that the advocate can go off on an ego trip of his own; he should, as far as possible, be the person P and express P's views. As has already been said, that is a slightly different role from that of someone who is a professional representative, whether salaried or as a lay helper. I think of the lawyer, who may take a detached view and say, ''I don't think social services are going to provide that, but we might be able to broker this,'' and will tailor requirements to the circumstances of the case. One point that I emphasise—it has already been mentioned—is that advocacy is an elastic concept, but it cannot stretch further than the independence of the advocate and his ability to represent and speak for the person concerned. What we have in clause 34 does not achieve that; it is right to draw that distinction.

The other point that I wanted touch upon—there was a degree of confusion on the subject during a short intervention on the hon. Member for Sutton and Cheam (Mr. Burstow)—is the second opinion. It is perfectly proper—indeed, I understand that in the health service in normal circumstances, a person has a right to seek a second opinion.

The Minister of State, Department of Health (Ms Rosie Winterton) indicated assent.

Tim Boswell (Conservative, Daventry)

I see the Minister confirming that. I speak of a medical opinion, not advocacy—a second opinion on whether a person has mental capacity,

what is his condition and what is the appropriate course of treatment. At one stage, there was slight confusion—perhaps not in the mind of the Minister, but in relation to how the Bill came across under the Government's arguments. It seemed that the consultee was there either to give the second opinion or to replace it. That is to some extent given credence by the wording of clause 34, on which clauses 34 to 37 hang, and which says that the consultee is there to give advice.

If I may say so—and I mean no disrespect to the excellent officials briefing the Minister on the Bill—officials are there to give a detached dispassionate view of what ought to happen, not to represent the fears and feelings of the person concerned. We remember that issue from an earlier stage.

We are talking about a whole spectrum of people, and they are all appropriate in different circumstances. To reinforce the point made by the hon. Member for Blackpool, North and Fleetwood—this needs setting out on paper, too—there are people with specialist medical or professional opinions, people who can give advice and support, and people who can have a dialogue with the local authority. However, there are also people who stand aside from all that and say, ''This is what I say while representing P, who has no mental capacity—or lacks it in this respect—and needs someone to speak for him or her.'' Those need to be kept separate in our mind as we look at what is provided.

I now come to resources; any Minister is bound to have that issue in mind, and Committee members have already rehearsed the subject. There is no open chequebook; there cannot be in any Department. Will the Minister say a little more about what is already in the Bill and the explanatory notes? The provision of the independent consultee service is highly circumscribed and operates only in specific conditions.

On page 37 of the explanatory notes we can see the effect on public expenditure. Throughout the Bill the figures are relatively modest, but the figure for independent consultees is quite substantial: £6.5 million per annum. That is probably on a slightly higher scale than what the ''Valuing People'' White Paper implies will be provided for those with learning disabilities. I am pleased to see the Liberal Democrats nodding. A tariff of £8,000 per local authority to cover the whole issue of learning disabilities does not go very far, given that, from recollection, I think that there are some 2 million people involved—a population similar in size to that which we are discussing.

Of course, the provision does not relate to the whole of the population lacking mental capacity, but to perhaps just 2 million of them. It relates to the group who are unbefriended, and to specific issues involving serious medical treatment, or where such people should live. That is a relatively small population, but I would like the Minister to speak about the number of people whom she thinks may be involved. Is the unit of funding that should be available for an advocate in a

particular situation—or an independent consultee, to use her phrase—appropriate to meet the needs of the Bill? It would be useful if she would talk about that.

That leads me to the wider issue. As I said, one cannot switch off the subject of resources. There are important problems relating to it, particularly for local authorities—such as the real issue of whether they will allow any independent consultee services to displace their own efforts as a way of budget shifting.

I have reservations about the concept of advocacy as a commodity, just as I have reservations about training as a commodity, and I have expressed that in other contexts. It is easy for people to say, ''We need more advocacy,'' or, ''We need more training.'' Goodness knows, they are both highly important in the Bill, and we will explore some of the nuts and bolts of the operation when we talk about putting its provisions into practice. However, subject to that reservation, what has been said leads me to feel that the Minister needs to reflect and give the Committee a more convincing answer on a number of points than we think that she has made to date—although perhaps we are being unfair to her.

There are two points to emphasise. First, this set of clauses refers to very definite conditions, such as medical treatment or where someone is to live—whether they are to go into care or be supported in their own home. It does not cover the whole range of decisions. As members of the Committee have pointed out, those decisions start with the decision whether that person has mental capacity, and are, in theory, replicated every day. When someone is on the margin, that sensitive issue might have to be decided from time to time, and independent advice should be considered.

In short, the clauses are intended to ensure that the service is applicable where P is unbefriended, which means that there is nobody else to speak for P. There may be lots of people around, such as carers carrying out acts under clause 5, attorneys, deputies from court, specialist advisers and other people who carry out services for P, but, as has been explored, they may have different interests. The concern is that at some point, in circumstances to be defined, P may need independent advocacy. That has been the common theme today, and it has been expressed across the Committee in a bipartisan way.

Can we draw a sensible boundary around circumstances in which advocacy might be appropriate, without saying simply that there is a general right to advocacy willy-nilly? Can we imagine circumstances in which advocacy would be appropriate over and above those in which there is nobody else to speak for P—when somebody is needed to cut through the thicket and say, ''You're all talking about P, but I'm standing up for him, and this is what I am saying''? Those are important considerations for the Minister.

I have not crafted amendments on this major issue, partly because I wanted to reflect on the debate, but I have one idea to offer the Minister, which could act as a safeguard. We are coming on to our first material discussions about the public guardian. Perhaps, over and above the categories set out by the Minister,

whether such people are advocates or not, we could make provision for the public guardian, or the court, to indicate that it would be helpful, just or appropriate—I am using general words, because I have not framed an amendment—to provide for independent advocacy in a particular case. That is my attempt at a solution that would widen the narrow remit in these clauses, but avoid a sort of open season in which people assume that there is unlimited advocacy for everyone, when that is not the case.

The message from the debate so far is that the Committee is not happy with the narrow remit, and Members are suspicious that it may be curtailed because of resources. We need to have a serious debate on that. There is also suspicion that the remit may not be sufficiently independent and unfettered to provide adequate advocacy as most of us understand it, although that is an elastic concept. We look to the Minister to give us assurances, because it is one area of the Bill with which the collective voice of the Committee is most unhappy.

Rosie Winterton (Labour, Doncaster Central)

This has been an extremely helpful and well informed debate, with strong feelings on all sides. I realise that members of the Committee feel strongly about this issue, and I pay tribute to everyone who has contributed, not least my right hon. Friend the Member for Coatbridge and Chryston, who has campaigned on this issue for many years.

Before I respond to the proposed amendments, I will go into some detail. It will be useful if I first explain why we included clauses 34 to 39 in the Bill. Those clauses create a safeguard—the independent consultee—to give extra protection to the most vulnerable people who lack capacity when major decisions are taken that could have a great impact on their lives. This is a very important safeguard, along with the other protections afforded by the Bill.

As a result, decision makers such as health and social care professionals will have a duty to consult the independent consultee when serious decisions are taken about future living arrangements, care or treatment and there is no one other than paid carers to consult. This is an innovative area of policy, which was introduced in response to concerns raised by stakeholders. We certainly believe that some people who lack capacity are especially vulnerable when serious decisions are taken in their lives, particularly those who have no family member or friend to hand. Again, involving an independent person in the decision-making process will provide an extra safeguard.

We estimate that about 20 per cent. of people in England and Wales who lack capacity when major decisions are being taken about their living arrangements, care or treatment, have no friends or family to consult. The independent consultee safeguard will provide the person with someone who is on their side so that there is never a closed relationship between the decision maker and the person lacking capacity.

Joan Humble (Labour, Blackpool North and Fleetwood)

The hon. Member for Sutton and Cheam made an interesting point about disputes. I have had more constituency cases involving people who want to move home and who are having problems with their family than those that involve people who are on their own. I therefore worry about the narrow prescriptive element of the definition of consultees, the unbefriended and people who do not have families. Sadly, in my casework there have also been one or two instances of financial abuse, in which the person with the disability is bringing a lot of money into the household in the form of benefits, the parents do not want their adult child to leave, and actively prevent them from doing so. How will that scenario be covered by having an independent consultee?

Rosie Winterton (Labour, Doncaster Central)

We will address that issue in clause 39, but I shall deal with it in the course of my remarks, because the hon. Member for Tiverton and Honiton (Mrs. Browning) also raised it.

As I said, by introducing the independent consultee safeguard, we are trying to target the most vulnerable group of people who lack capacity. In the first instance, those are the people with no friends or family to be consulted in these very serious situations. Many hon. Members, and some of the amendments, suggest that we change the name to ''independent advocate''. We chose the name ''independent consultee'' because this is, in many senses, a new service.

I return to the reason why I believe that the new role builds on advocacy services and does not undermine them. The independent consultee will play a specific role for the purposes of the Bill. We want to avoid using a term that can mean different things to different people. We have used a new title to emphasise that it is a new role and a new service. The independent consultee will be specially trained to find out what they can about the person to whom they are the independent consultee, and to find out what options may be available.

Tim Boswell (Conservative, Daventry)

It might help if, at this point, the Minister could confirm to the committee that, subject to regulations, which she may want to come back to, independent consultees are broadly envisaged as unfettered. They can range around, make such inquiries as they need to about P's circumstances and ask the opinion of any other person if they think that it might be relevant, including that of carers or people who might have helped P with decisions in the past.

Rosie Winterton (Labour, Doncaster Central)

That is the case. The independent consultee will clearly have the right to talk to the person lacking capacity and a right of access to relevant records. They will find out as much as they possibly can about the likely wishes of the person and explore a range of possible outcomes that may be open to that individual. We want to give the person those powers so that they can take a broad view of what will eventually be in the best interests of the individual, which they can then recommend to the decision maker.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I asked earlier whether resources are taken into account when it comes to facilitating communication. Will independent consultees, in doing their work, have the means to ensure that P can communicate his or her views effectively? In other words, will the consultee be completely subject to the principles at the beginning of the Bill?

Rosie Winterton (Labour, Doncaster Central)

Yes, and my hon. Friend the Under-Secretary of State for Constitutional Affairs agreed that we would take away the issue of communication and come back with further information.

I want to turn to another point that the hon. Member for Sutton and Cheam and others made earlier about the Joint Committee's attitude to advocacy. Although I recognise that it was certainly supportive of the idea, the Committee said that it would be inappropriate to recommend that resources be committed to provide a statutory right to advocacy. The issue has been recognised, and we have tried to take the Joint Committee's recommendation that we look at a provision that would be appropriate to the Bill. That is how we concluded that an independent consultee could provide such protection.

Angela Browning (Conservative, Tiverton and Honiton)

May I talk the Minister through a common scenario? An elderly person is admitted to a hospital having had a severe stroke, cannot return home and has to be placed in residential or nursing care. Most hospitals now have a member of the local social services department who acts as an intermediary between the family, if there is one, and the hospital in order to place the elderly person. Are we now to assume that an independent consultee would also be brought in, and if so, where would that person come from?

Rosie Winterton (Labour, Doncaster Central)

If the individual in question has family and friends, there will not be an independent consultee. When someone has had a stroke and it is envisaged that they will move into long-term residential care, but they have no family or friends who could be consulted, an independent consultee will be brought in. I shall refer later to how we envisage independent consultees being appointed, and the type of people that they could be. We are examining whether, in consultation with stakeholders, it would be appropriate to expand the role to situations in which there is perhaps a family dispute.

Paul Holmes (Liberal Democrat, Chesterfield)

I apologise if my point was covered this morning when I was elsewhere participating in a debate on disability benefits. There are two related issues in the Minister's argument. First, the Making Decisions Alliance is concerned about the terminology ''an independent consultee'' and says that it implies that such consultees would be more passive than that implied by the term ''an independent advocate''.

Secondly, who would employ the independent consultee? The Minister may cover that matter later, but there is always the fear that if the independent consultee is seen as an employee of social services or the national health service, he would still be in a more

passive role because he would be subjected to the budgetary constraints of the organisation for which he worked. The terminology is passive, but the question of who employs the independent consultee could also lead people to consider that the consultees might play a passive role.

Rosie Winterton (Labour, Doncaster Central)

I emphasise to the Committee that I do not regard the role of an independent consultee as a lesser role than that of an advocate. In fact, I describe it as an advocacy plus role. I expect the independent consultee to have advocacy skills, but to be able to build on them as I have described, through specific training, so that they can give wider advice to the individual. At present, social services might be funding groups that provide advocates and there is no reason why those advocates would not be able to undertake, for example, extra training on top of their advocacy skills so they could develop the type of skills that I am talking about. They would be no more in hock to the employer than advocates are at present.

Tim Boswell (Conservative, Daventry)

The Minister must be careful not to widen the role of the advocate or the independent consultee beyond the clauses to which she has tied them. Under clause 39, there is a power to extend the consultancy service, which is probably what she has in mind. At present, the idea that the consultee could go beyond issues of serious medical treatment and residence to consider other factors, including stimulation in a person's day-to-day life and quality of life issues, is not covered by the Bill, although some of us may wish that it were.

Rosie Winterton (Labour, Doncaster Central)

If someone is considering a change of long-term care from one care home to another, I expect the independent consultees to look at what is available in a different area. I want them to ascertain the wishes and feelings of the individual and find out what is available in other places, compared with where the person is now. That would be part of the decision-making process. Such matters would come into the equation, if we were asking those people to undertake the role that we have defined.

Many people have asked for clarification of the role of the independent consultee, and wanted to know whether we see it as a substitute for independent advocacy. I am clear that independent advocacy has an important role to play in helping people to live independently and make their own decisions. That is one of the key principles of the Bill, and we say something about it in the code of practice. There is growing provision at local and national level—some 800 organisations are now operating advocacy services. I accept, as my hon. Friend the Member for Blackpool, North and Fleetwood said, that the services are not all as wonderful as those in Blackpool.

Advocacy services are often locally funded grass-roots organisations. Many organisations say that that is how they would like to be, because they wish to operate independently, and are dependent on different funding streams. We believe strongly that it is important that whether advocacy services are commissioned through primary care trusts or others, they must reflect the local needs of the population.

There is no doubt that we will continue to support the provision of independent advocacy, and we have made it clear to local authorities and the NHS, through guidance, that independent advocates should be brought in where appropriate.

My hon. Friend the Member for Blackpool, North and Fleetwood and my right hon. Friend the Member for Coatbridge and Chryston are concerned about whether these measures would undermine the provision of advocacy services. They absolutely would not—I hope for the opposite effect. As I have said, an independent consultee would not be ruled out if they were already an advocate. Indeed, one role could add to the other. That is important, which is why we say that the service will be statutory, will meet national guidelines and standards and is specific to the group of people that I have outlined. If somebody already has an advocate and wishes to keep talking to them, that is fine. However, we would expect a combination of skills in this role, so that people could use advocacy skills, add to them the ability to consider somebody's wider circumstances, be on their side—as a friend to the unbefriended—and make representations to decision makers about what they felt was in the person's best interests.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

It is useful to have further illumination. Many people would feel that the Minister's description of the role of the consultee—being on the person's side, finding the facts and doing research—involves skills that one would expect to be part of the set of skills of an advocate. However, she suggests that the role is also about giving advice to the decision maker. It is a separate role, and I asked earlier in connection with my amendment whether she would deal with the complication of an advocacy role, which is growing as we listen to her set out the case for the clauses, and the nominated person role. There is a danger that the two roles will not easily fit together, and in other circumstances—particularly in children's law—they are clearly separated. How does the Minister reconcile the differences of interest that might emerge?

Rosie Winterton (Labour, Doncaster Central)

We will have to differ on that, because it is important to realise that we have highlighted people who are completely alone in the first instance. We are talking about somebody finding things out by building on advocacy skills, so that they make judgments that balance what an individual feels or asks for with the other available options. Decisions are not made on the grounds of the individual's feelings or requests alone.

Let us suppose that there was straight advocacy and somebody said, ''This is what the person desires,'' and the decision maker said, ''Well, I do not think that is in their best interests and I am going to do something else.'' This provision gives an added safeguard so that a person can not only express their views and have them listened to, but have the other available options looked at. It is about being a friend to that person—looking after the unbefriended—but at the same time building on advocacy skills.

Joan Humble (Labour, Blackpool North and Fleetwood)

What my hon. Friend describes is what a lot of advocacy services are doing now. They negotiate with the statutory agencies. They often get in at the first level when there are the early meetings and before things escalate into disputes—for example, by accompanying an individual to meetings with social services departments. They ensure that that individual's voice is heard, and they ensure that it is heard loudly. They do not just accept what a statutory agency such as social services says; where they need to, they get stuck in and work on the individual's behalf in the manner of good old-fashioned citizens' advocacy.

Rosie Winterton (Labour, Doncaster Central)

My hon. Friend is absolutely right that that is what we want. However, she is describing the very best of services. We have not wanted to use the title ''advocacy'' because it can mean different things in different areas. We want to capture what she has outlined while emphasising that this is a very particular service.

Beyond that, if, after listening to the independent consultee, the decision maker chooses another course of action, they will have to say why they have done so. The independent consultee will have a strong voice. That is why we have defined the role as a statutory service with national standards and specific training. We have done that because we want it to be exactly the role that my hon. Friend has outlined. We do not want there to be any confusion about that; we do not want there to be debates because there are individual volunteers who, good as they might be, are not providing exactly the service that she outlined.

Several hon. Members rose—

Rosie Winterton (Labour, Doncaster Central)

Everybody wants to intervene. I give way to the hon. Member for Tiverton and Honiton.

Angela Browning (Conservative, Tiverton and Honiton)

I am grateful to the Minister. This morning, I raised a point about a person without capacity or with fluctuating capacity whose immediate carer—perhaps a relative or family friend—would nominally be the independent consultee, although those two people required an advocate to take their case forward. That will be a common situation, as it is not always the case that a close relative is sufficiently familiar with the system to know when it is possible to ask about what else is available, or to know what else is available.

Knowledge is powerful in advocacy—knowing where the parameters are with regard to what is a reasonable acceptance or when to go that bit further to identify whether there are other options. The novice independent consultee—for want of a better term—who might be the closest relative might not have that knowledge. How would that fit into things? How would they get that expertise into the equation?

Rosie Winterton (Labour, Doncaster Central)

In the strict sense of the term at the moment, the hon. Lady is right. It would be expected that that person's relative would be consulted. At the same time, advocacy services may be available that do not necessarily involve an independent consultee. That comes into a wider discussion about advocacy. Clause 39 considers other groups and whether there are

circumstances in which we ought to extend the role of the independent consultee. I shall come back to that point.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Earlier, the Minister had an exchange with the hon. Member for Blackpool, North and Fleetwood, who made a fair point and asked, ''Why not take on board the issue of advocacy?'' The Minister seemed to be running the argument that advocacy had become so diffuse and ill defined that it was impossible to capture and put in the Bill. However, surely the task of the Government is to capture it, put it in the Bill and give it a clear definition. Earlier, I proffered a definition on behalf of the Disability Rights Commission. There is an emerging consensus on what advocacy is and what the standard should be. Surely after seven and a half years of various attempts to get a definition, the Bill could achieve one.

Rosie Winterton (Labour, Doncaster Central)

That is exactly what we are trying to achieve through the consultation that we will undertake to identify the independent consultee's role. Later, I shall come to how we are expanding that role. As I said, it is not true that independent advocacy will be overridden or downgraded. I feel strongly that this could fit in well and perhaps help to secure independent advocacy services.

Sitting suspended for a Division in the House.

On resuming—

Ms Winterton: As I hope I have been able to explain, the role of the independent consultee is a new service, which should build on the skills of independent advocates. It will not undermine their work. We have decided that it would be better to rename the service to avoid confusion between the independent consultee and the independent advocate.

The hon. Member for Sutton and Cheam asked how many people will be covered by the independent consultee and what will be the overall cost. The start-up costs of training and commissioning will be about £6.5 million for England and about £0.4 million for Wales. The running costs will be similar.

It is hard to say exactly how many people will be covered, but we expect that about 64,000 decisions a year will require the support of an independent consultee. However, we have provided through clause 39 broad regulation-making powers so that we can extend the use of the independent consultee beyond the unbefriended.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am sorry to interrupt, but the Minister's comments on clause 39 present an opportunity not to be missed. I welcome the fact that the clause presents scope for widening the service to those who may well have friends, carers or relatives, but clause 39(2)(a) raises another matter. It provides that the regulations may

''prescribe circumstances (different to those set out in sections 35, 36 and 37) in which advice must be sought from an independent consultee''.

Given the somewhat wider role that we are now discussing, if what is set out in the Bill relates solely to advice, how will the Minister's intention be carried out in practice?

Rosie Winterton (Labour, Doncaster Central)

We are now dealing with the question whether there are other decisions, outside long-term care and medical care and treatment, on which the independent consultee might be approached to give advice. We are considering two matters: the number of people who might be covered and the type of advice that might be relevant.

Angela Browning (Conservative, Tiverton and Honiton)

I gave an example in a previous sitting of an adult with an autistic spectrum disorder; it would not be sufficient to place that person in independent, albeit sheltered, accommodation, unless a package of support was also provided to enable them to cope with day-to-day living under that roof. Is that what the Minister is thinking of in her example—a case where another, ancillary matter arises, related to the decision to rehouse someone?

Rosie Winterton (Labour, Doncaster Central)

In terms of the independent consultee in that particular instance—if the person had no family, friends or carers—that would almost become part of the best interests recommendations. We are considering not only immediate wishes and feelings, but the circumstances in which a move might be made and the options that might be available—what, in the view of the independent consultee, would be in the person's best interests if there were a choice between one place and another? A decision could be reached that way.

When we started to develop the policy on the independent consultee, we wanted to consider a broader range of groups and situations. We wanted to think about cases in which P has no ascertainable wishes or feelings, but is compliant; those in which the action appears to be contrary to P's wishes and feelings; and those in which there is a family dispute over the best course of action. It proved almost impossible to define objectively when to involve the independent consultee. It seemed as though the doctor or the social worker would be deciding when to bring in an independent consultee, which would negate the whole point of the safeguard.

We want to consult further on whether there are others who lack capacity and might benefit from having an independent consultee, or whether there are other circumstances in which it might be possible to extend what we have in the Bill. We can do that under the powers in this clause. We will work closely with stakeholders on that. We want to ensure that any regulations we develop are ready to dovetail with implementation in 2007.

Tim Boswell (Conservative, Daventry)

I have looked again at clause 39, which refers to expanding the role in relation to persons who lack capacity. Will the Minister consider also the circumstances of a dispute about whether a person lacks capacity at a particular time to ensure that the

drafting covers such arguments over demarcation and that the person in that borderline situation may have adequate support?

Rosie Winterton (Labour, Doncaster Central)

I am not wholly sure whether that would be the right circumstance in which to have an independent consultee or whether such a case would go to the Court of Protection, which would decide whether it wished to employ an advocate to find out somebody's wishes or feelings. However, I take the hon. Gentleman's point.

We also want to consider, in the consultation that I mentioned, whether—and how—independent consultees could be involved in annual reviews for people who have no friends or family as well in cases in which people are changing their accommodation. We could probably include the independent consultee in the provisions for local authority guidance. We shall consult on that.

Let me turn to the amendments. As well as responding, I shall speak to the Government amendments. Amendment No. 170 would rename the independent consultee an independent advocate and link the function to the maintenance of the principles set out in clause 1. The Bill already makes it clear that the independent consultee must adhere to those principles; they underpin the Bill and everybody should follow them. We certainly expect the independent consultee to act with full regard to them.

We also believe that the amendment could create a great deal of uncertainty about when an independent consultee should be brought in. We have tried to define clearly when the independent consultee—

Sitting suspended for a Division in the House.

On resuming—

Rosie Winterton (Labour, Doncaster Central)

There is better news for the second aspect of the amendment. We are certainly very sympathetic to the intention behind some changes proposed by the hon. Member for Sutton and Cheam. We have received quite a lot of feedback that the role of the independent consultee might be perceived as being primarily to support the decision maker, and we understand stakeholders' views on that. We intend the core function of the role of the independent consultee to be to represent the person's wishes, feelings, beliefs and values, but we accept that the wording of the independent consultee clause does not convey that.

The independent consultee does not decide what is in the patient's best interest—that is the role of the NHS body or local authority decision maker—and is not restricted to interpreting the patient's feelings if other relevant information exists that should be brought to the table on the patient's behalf.

We are therefore satisfied with the word ''advice'' in clauses 34 to 37, and that the role is advisory, but we are certainly sympathetic to the belief that the current wording does not properly reflect the intended role of the independent consultee. We have therefore decided to introduce Government amendments Nos. 224, 227

and 233 to clauses 35 to 37 to clarify the intended role by referring back to clause 4(5). That emphasises the fact that the role of the independent consultee is not simply to advise the decision maker on a person's best interests, but is also to represent their past and present wishes, feelings, relevant beliefs and values.

Amendments Nos. 171 to 174 would also change the title of the independent consultee to independent advocate. I have already explained why we believe it to be important to have the new title of independent consultee to cover the very particular role that we see them playing—using, as I have said, many skills used by advocates, but with new and innovative ones.

Amendment No. 175 would change the requirement for the independent consultee to give advice to a requirement to give support to the person who lacks capacity. Again, this relates to a fear that the independent consultee may be seen to be more on the side of the decision maker than on the side of the person lacking capacity. We intend to amend the Bill to make it clear that the independent consultee represents the incapacitated person as well as advising the decision maker.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Will the Minister say whether the policy intention is that the independent consultee will be equidistant between the interests of the individual P and the decision-taking body, or will the Government amendments move the independent consultee closer to P than hitherto?

Rosie Winterton (Labour, Doncaster Central)

We have always seen the independent consultee as being ''on the side'' of P. That is the whole idea. We want the independent consultee to be able to advise the decision maker on the result of their interaction with P and on their inquiries about past wishes and feelings, but we also want the independent consultee to be able to advise on the available options. If the decision maker goes against the advice of the independent consultee, they will have to explain why they have done so. The independent consultee could challenge any decision through the courts if they wished to do so, so I believe that the Government amendments speak for themselves. I do not want this process to be seen as a battle. The idea is to provide someone who gives assistance in this scenario, not someone who creates conflict.

Amendment No. 176, tabled by the hon. Member for Sutton and Cheam, would ensure that, having considered the views of the independent consultee, the decision maker does not have to proceed with the proposed act or decision that is under review.

The hon. Gentleman would also like to ensure that the person lacking capacity is not obliged to accept the assistance offered by an independent consultee. As I explained, the Bill states in clauses 35, 36 and 37 that when the independent consultee gives advice to an NHS body or local authority, that advice must be taken into account. If the decision maker is not persuaded to change his views about the best interests of the person who lacks capacity, mechanisms will be in place to ensure that he explains why he has not taken

that advice. If necessary, the decision can be challenged. Nothing in the Bill forces a person who lacks capacity to accept the assistance offered by the independent consultee. Rather, the emphasis is on the fact that the decision maker has to bring in an independent consultee when serious decisions have to be made.

Government amendments Nos. 224, 227 and 233 are intended to clarify the role of the independent consultee. We have listened to the stakeholders' view that the current wording gives the impression that the role might primarily be to support the decision maker. That is not our intention. We expect the independent consultee's core function to be to represent the person's wishes and feelings, beliefs and values. However, that is only one part of assessing best interests. For the independent consultee to have more influence on events in favour of the person who lacks capacity, we want that role to be broader. Hence, our clarification of the position with the Government amendments.

New clause 3 would require the ''appropriate authority'' to provide advocacy services when decisions were made in relation to care programmes and residence. It would also ensure that the appropriate authority kept full records on how those decisions were reached. However, there are several problems. The provision lacks clarity and it is not clear how it should relate to the rest of the Bill. It raises wider questions about advocacy. I refer to my earlier remarks about why our approach is more appropriate in such circumstances.

The new clause seems to cover all decisions about residence and it could apply to all decisions on care assessments involving people who move into hospital and residential care. It could even apply to decisions on whether people should stay in their own homes. It could also involve private family decisions about moving elderly relatives into residential homes.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The Minister says that this could involve decisions about whether someone stays in their own home. Yes it could, if the person who lacks or has fluctuating capacity has been cared for in the long term by a family member who subsequently dies and leaves him on his own. In such circumstances, surely there is a debate to be had about putting in the necessary services to provide support to enable the person to continue living in his home. Having good documentation and good processes are also very relevant. I am not certain that the Minister, in saying what she did, is doing that group of people a service.

Rosie Winterton (Labour, Doncaster Central)

Certainly, in the circumstances outlined by the hon. Gentleman, in which a person has been left alone and is therefore unbefriended, and a decision has to be made as to whether that person should move to long-term residential care or stay in their home, that is when an independent consultee would be brought in. The proposal captures too broad a range of situations. As I said, we intend to consider more widely the role of the independent consultee.

New clause 4 would place a duty of care on local authorities to investigate and take action where necessary to safeguard and promote the welfare of adults who lack capacity when they are likely to suffer harm. Obviously, the protection of vulnerable adults is vital, particularly for those who lack capacity, but I am afraid that we cannot accept the new clause.

Health and social care professionals such as doctors and social workers already have a duty of care to investigate cases of potential abuse and to refer cases to the police where appropriate. Section 47 of the National Assistance Act 1948 deals with people who cannot make arrangements for themselves and are living in unsanitary conditions. In such cases, local authorities may apply to the courts for an order for the person to be removed from his home to a place to be looked after.

Over and above that, the Government are taking action to protect all vulnerable adults, including those who lack capacity. It would be wrong to place a duty of care on local authorities only in cases involving people who lack capacity. I draw the hon. Gentleman's attention to ''No Secrets'', which was groundbreaking statutory guidance on the protection of all vulnerable adults. As he will know, it set out for the first time a national definition of abuse and covered psychological abuse, financial abuse, discrimination and neglect.

Although we respect the aims of the new clause, we believe that substantial action is already being taken to protect vulnerable adults from harm. It would not be appropriate to impose a statutory duty in the Bill.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am grateful to the Minister, who has been very willing to give way when speaking to amendments in this important debate.

Given that the Bill contains a new criminal offence of neglect, why has it been deemed inappropriate to create a duty that is almost the other side of that criminal offence—the duty to investigate? How can the offence sit comfortably in the Bill, but not the duty? There seems to be an imbalance in that argument.

Rosie Winterton (Labour, Doncaster Central)

As I said, there is a duty to investigate under other legislation. The difficulty with new clause 4 is that it would confine the duty to local authorities, rather than extending it elsewhere.

I turn to new clause 27, which my right hon. Friend the Member for Coatbridge and Chryston tabled with the intention that it should replace clause 34. The first two subsections mirror amendment No. 170, which I have already covered. There are two other differences between the proposed new clause and clause 34. First, the new clause would extend the regulation-making power on the appointment of independent consultees to include recognition of existing independent advocates. That is unnecessary because clause 34 already places a duty on the Secretary of State and the National Assembly for Wales to arrange the appointment of independent consultees. That may include recognising existing independent advocates, provided that they meet the specific appointment criteria.

Independent consultees will need to be provided to agreed standards and delivered in a consistent way. They will need to be appropriately trained and qualified, as set out under the regulations. I emphasise that people who currently provide services as independent advocates may be recognised as independent consultees, but it is important that they meet the appointment criteria to act as an independent consultees under the Bill, which we shall set out in regulations. We want people to have specific skills and training to carry out the new function, but we shall not rule out independent advocates. The amendment would also make the regulation-making power in respect of the function of independent consultees relate to new clauses 2 and 3.

I have already explained why I hope that the hon. Member for Sutton and Cheam will not press new clause 3. We shall consider new clause 2 when we discuss clause 45. I completely understand the anxiety voiced by my right hon. Friend the Member for Coatbridge and Chryston to make sure that the system works to the benefit of people without capacity. I am confident that, by continuing to work with stakeholders, we can devise a robust system that will take all the best aspects of advocacy and build on them. Having given my response, I hope that the hon. Member for Sutton and Cheam and my right hon. Friend will not press the amendments and new clauses and that the Committee will support the Government amendments.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I start by thanking the Minister for a detailed, thoughtful and substantial response to the group of amendments, albeit protracted not only by various interventions by members of the Committee, but by activities in other parts of the House. It has been a useful and genuinely bipartisan exchange about advocacy, how it can be made a part of the Bill and how it will fit into the decision-making arrangements. At I said at the outset, my amendments were intended to probe, goad, encourage, nudge and persuade the Government to think further. The Minister has said today that there is a door open to further consultation, and that is to be welcomed, but when does consultation stop? When will it result in a change of mind, if the whole weight of opinion in the consultation is for something different? The message that I wish to leave with the Minister more than anything else from our exchanges is that none of the organisations that have an interest in the Bill, particularly in advocacy, will act as an advocate for the Government in respect of the independent consultee. That is a difficult position to start from when trying to make the policy viable and workable.

The Minister made some useful comments about how the independent consultee would work. She said that their role was not so much a matter of advocacy, but advocacy plus. I am sure that that phrase will now be developed—perhaps it could even be retitled ''new advocacy'' or ''modernising of advocacy.'' One foresees a series of rebrandings. The Minister said herself that it was better to rename the service, which implies that the Government are genuinely grappling

with the fact that there is something out there called advocacy, which has evolved and developed piecemeal; there are leaders, such as the service in Blackpool, North and Fleetwood, who have a clear idea of what advocacy is and how it works, and others who do not. Rather than attempt to define clearly in legislation what they mean by advocacy, the Government have chosen to use a different label and to define that instead, and so avoid all the complications and difficulties of defining advocacy. That ducks the issue, and if we duck it, it will come back time and again as a problem.

Tim Boswell (Conservative, Daventry)

Before the hon. Gentleman moves on from labels, will he reflect on the fact that our concern is that we might get ''Advocacy Lite'' which might end up not being advocacy at all?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The hon. Gentleman has added a label to which I shall certainly make reference in future; we can call the service ''Advocacy Lite'' or ''Advocacy Less,'' or whatever we want. Today there was yet another story about the claims put on the packaging of processed foods; we have to be careful about label, and what it really says about what is inside. It sounds as though content behind the label is being made slightly wider in order to garner support for what is currently being described as an ''independent consultee'' and make people feel more comfortable with it. However, on balance I still do not think that that is the right way to go.

As I said, there may well be a role for a consultee, perhaps rather like that of the guardian ad litem in the child protection system, but it is a separate and different role from that of advocate. I am not yet convinced by what the Minister says. There is a tension in conflating an advocacy role—being the person on P's side, his friend—with a role in which one has to step back and give advice in a detached way to the decision maker. The Minister says that we will have to disagree, but I genuinely do not see how those two roles can sit together comfortably and effectively. Although a person can use some of the skills set of an advocate, he can never be an advocate once he has stepped outside the role of being on the side of the individual and into a different role in which he gives his own opinion and advice to another party.

I will not go on much longer, and I am sure hon. Members will be pleased about that. I end by reflecting on something that the hon. Member for Blackpool, North and Fleetwood said. She has been an MP since 1997 and, in common with a number of Labour Members, has advocated advocacy in many ways, including through amendments and in Committees. On each occasion, the Minister with the job of responding to those amendments has said, ''This is not the time'' or ''This is not the Bill; we should deal with this under another Bill.'' When will it be time to put clearly into legislation the right to advocacy and to say what advocacy is, so that there is a clear statutory framework in which advocacy operates? I still hold the

view that the Bill is the right time to deal with the issue. I would like to return to the matter on Report to see how the thinking is evolving.

Tom Clarke (Labour, Coatbridge and Chryston)

I too thank my hon. Friend the Minister for such a comprehensive response to our debate. I think that we all agree that it was an extremely good debate, and she has responded in kind. I also thank her for correcting me on the definition of capacity; she was right. I meant to say that an independent advocate is vital to someone who may lack capacity—rather than just to someone who does lack capacity. There is a significant difference. An independent advocate can play a vital role in helping a person whom doctors, social services, or even parents say cannot make decisions for themselves. Advocacy is about empowerment, and that is what we are seeking to achieve. As my hon. Friend knows, I hope to address the issue in discussions on later amendments, because, as we have all been saying, the issue will not go away.

Having said that, I am disappointed with the tone of my hon. Friend's response. I am sorry that she could not accept my new clause, because it was reasonable. The hon. Member for Sutton and Cheam made an important point. The response to advocacy since I entered Parliament has been that Ministers of all political complexions say, ''This isn't the time to do it,'' or ''This isn't the right Bill to do it in.'' However, when the Disabled Persons (Services, Consultation and Representation) Act 1986 went through the House, advocacy was included. I hope that my hon. Friend the Minister does not mind the comparison, but when the right hon. Member for South-West Surrey (Virginia Bottomley) introduced the National Health Service and Community Care Act 1990, she said that we did not need what was in the 1986 Act, because the 1990 Act embraced the concept of advocacy itself, but I have not seen any evidence of that. We are still fighting; advocacy is not there. My hon. Friend has sought to persuade us that we can have a national framework for consultees, but if that is so, we can have one for advocates.

If I understood my hon. Friend, she was saying that she is offering advocacy plus and tying it into people working for social services departments. If I did not understand correctly, I am happy to give way.

Rosie Winterton (Labour, Doncaster Central)

I was trying to say that some advocacy services can be commissioned by social services, and that would still be possible given what has been proposed for the independent consultee services. The people involved are not necessarily social workers, but they might be part of organisations commissioned by social services to provide advocacy services.

Tom Clarke (Labour, Coatbridge and Chryston)

I am grateful to my hon. Friend, but I still feel that there is not the necessary independence to enable advocates to do their job as we would expect them to.

There have been too many false dawns, which is perhaps why we are a little reluctant to accept even my hon. Friend's delightful assurances. Speaking for myself and, I suspect, for others, I was not really convinced by the Government's arguments. The case

they advance poses more questions than it answers. We will need more information on the role of the consultees. I do not think that to create a new service would be beneficial and, as we have already seen this afternoon, there is tremendous scope for confusion. Perhaps, as we deal with other amendments—especially those I hope to move myself—the position will become clearer. At this point, however, I say with great sadness that if she accepted the principle of independent advocacy, my hon. Friend the Minister would save herself a lot of trouble. I know that she will go higher still on the ministerial ladder, so her acceptance would also save her successors a lot of trouble. Above all, if she did so, the Committee would be much happier than it is.

In that spirit, I bow to what my hon. Friend said, and I will not press the new clause.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 46, in clause 34, page 19, line 18, at end insert—

'(c) as to the conduct of independent consultees'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss the following: Amendment No. 47, in clause 34, page 19, line 26, leave out 'so far as practicable'.

Amendment No. 48, in clause 34, page 19, line 28, leave out subsection (5).

Tim Boswell (Conservative, Daventry)

In the spirit of the previous group, the amendments are designed to examine some of the other appropriate safeguards, although discussion of them need not take anything like as long and they are somewhat different.

Amendment No. 46 picks up on points that the Minister has already made about a national framework for the independent consultee service that would require professional standards and a measure of appropriate training. The word ''appointment'' is used in subsection (2). The exact status of such consultees is not quite clear: they might be salaried employees, or retained and brought in as appropriate, or on contract for a particular case. There may be a local advocacy service on which the relevant body might wish to draw. Will the Minister explain that a little?

I am conscious of a tension. If the Government—for effectively it will be they—employ independent persons to carry out an independent function, it will be difficult to shackle them by saying, ''We do not like the conclusions that you have come up with.'' I think that the appropriate analogy is with judges or stipendiary magistrates. Sadly, people sometimes fail to do their job—they might fail to operate within the regulations or guidelines set by Ministers, or be delinquent in some other way. The amendment's purpose is to probe the Minister's intentions. Will there be provision for striking such people off the register or for not using them again? In extreme cases, will there be provision for taking some sanction against them if they behave in a disreputable or totally unacceptable way?

The point of amendment No. 47 is that because a principle is prayed in aid—the principle of independence from any person responsible for the act or decision—it is a mistake to qualify that principle by the words ''so far as practicable''. A principle is a principle is a principle, and we are discussing the principle of independence. It might conflict with another principle—there might be another reason or consideration in mind—or with a practical situation, in that there is no independent person. However, I do not think that we should qualify or muck about with the principle in anticipation of such a conflict. I simply suggest to the Minister that the principle be unqualified and that if circumstances take over, so be it.

Amendment No. 48 would delete subsection (5), the financial provision in italics. My intention should be pretty clear from what I said during earlier discussions, but I say it again before Ministers try to have fun with it. My intention is not to remove the source of any money that might need to be applied to the independent consultee service, but to probe the implications. I said to the Minister that I had noticed that the cost would be £6.5 million. She said helpfully that she anticipated 64,000 cases a year—more than I did—and that was before she extended the boundaries. I might have misread, or my mathematics might be defective, but having re-examined the figures, that looks like £100 a case. That is not a lot for advocacy; one does not get a lot of legal advice for £100 these days. I am sure that the Minister will say that people could do more than one case at a time or could consider cases in parallel. However, I ask her to reflect on what I have said and to assure the Committee about the scale and professionalism of what is proposed. I ask for her assurance that the principle will be untrammelled even if, sadly, the reality has to kick in from time to time. If she gave such assurances, that would help progress.

Rosie Winterton (Labour, Doncaster Central)

I think that I referred to 64,000 decisions, not necessarily 64,000 individual cases, but that that could provide for up to 64,000 cases. I thought that it would be useful to state that up front.

In amendment No. 46, the hon. Member for Daventry (Mr. Boswell) is trying to ensure that independent consultees operate to high standards of conduct. They have an important job, and we want them to have agreed standards and appropriate training and qualifications. The Bill includes a regulation-making power so that we can set out some of those conditions. However, the service is a new and innovative policy. We want to consider its implementation carefully and to ensure that we consult widely with stakeholders on how the scheme will operate. I assure the hon. Gentleman that during that consultation we will explore the best way to draw up standards of conduct. It is likely that those standards will be covered in the appointment regulations as the standards that independent consultees will be expected to maintain in order to keep their appointment.

Angela Browning (Conservative, Tiverton and Honiton)

I think I have missed something. The Minister is now talking about regulations and standards, and what she is describing sounds like some form of accreditation. That is fine, but earlier in this debate it was mentioned that a close relative might be the independent consultee. I cannot see how we can have a two-tier system. I think I must have got that wrong. Can the Minister explain?

Rosie Winterton (Labour, Doncaster Central)

The hon. Lady might have misunderstood what I said about the independent consultee. I think that she is referring to a close relative who might feel unable to make the decisions. I said that under clause 39 we will look at wider situations where an independent consultee might be appointed, not that it would be a close relative. If a close relative were going to be appointed to make decisions, it would be more likely that that would be done through the Court of Protection.

In amendment No. 47, the hon. Member for Daventry is trying to ensure that independent consultees are truly independent. We agree that the people who provide those services should be independent of the health and social care professionals making the decisions. That is why we have given them the name of independent consultee and why the principle of independence is recognised in subsection (4). However, we do not want to be too prescriptive. There may be cases in which a person had recently been employed by a local authority, which subsequently commissions their services as an independent consultee; or a person may be carrying out work for a local authority as a consultant on unrelated business. It is important that we do not impose restrictions in legislation so that it becomes impossible for such appointments to be made.

In amendment No. 48, the hon. Gentleman is trying to create a situation in which the independence of independent consultees replicates the position of many existing advocacy services that rely on volunteers. The Government wholeheartedly welcome the involvement of volunteers in organisations that support vulnerable people. We have provided funding for that in the past and will continue to do so. However, we have made it clear that in the case of an independent consultee it would be wrong for a statutorily required service to depend on volunteers. In view of the special role that we want the independent consultees to take, it might be difficult for them to obtain the ongoing training and skills that will be required.

We therefore believe that there needs to be provision for payment. During implementation, we shall build on measures such as the service level agreements that have been agreed between NHS providers and agencies that might be commissioned to do advocacy work. We want to guarantee that independence, and the operation of independent consultee services. I hope that, given those reassurances, the hon. Gentleman will feel able to withdraw his amendment.

Tim Boswell (Conservative, Daventry)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Rosie Winterton (Labour, Doncaster Central)

I beg to move amendment No. 221, in clause 34, page 19, line 34, leave out

'examine any record of a prescribed kind which'

and insert

', at all reasonable times, examine and take copies of—

(i) any health record,

(ii) any record of, or held by, a local authority and compiled in connection with a social services function, and

(iii) any record held by a person registered under Part 2 of the Care Standards Act 2000 (c.14),

which'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss Government amendments Nos. 112 to 114.

Rosie Winterton (Labour, Doncaster Central)

These are small but necessary amendments to guarantee independent consultees, the public guardian and Court of Protection visitors access to all the information that they need to carry out their functions.

We want to ensure that independent consultees have access to the relevant records. Amendment No. 221, by requiring that an independent consultee should have access to health and social care records, will bring the provisions for independent consultees in line with those for Court of Protection visitors and the public guardian. It also provides for access to records held in private care homes that are not health related—for example, details of what somebody might like to eat—to which access might be required. Without access to the relevant records, it might be difficult for an independent consultee to fulfil his functions effectively, both in representing the wishes and feelings of P and in advising decision makers.

In addition, the public guardian and Court of Protection visitors, either when carrying out their supervisory functions or when reporting to the Court of Protection, might need to examine the health and social care records of those who lack capacity. The Bill already makes provision for that, but we have realised that the provisions do not allow them access to records held by private care providers unless they relate to health. A private care home might well be happy to allow Court of Protection visitors to examine residents' records. However, as the Bill now stands, they would have access only to social care records that are held by a local authority, not those held by a private care home.

Amendments Nos. 112, 113 and 114 are straightforward in that they allow visitors and the public guardian access to all records held by people registered under part 2 of the Care Standards Act 2000. That will therefore apply to records held by any registered care home or domiciliary care agency.

Tim Boswell (Conservative, Daventry)

I have some reservations about the creeping growth of the exchange of information within Government and between agencies related to the Government. It would be inappropriate to rehearse those at length now, but they lead me to ask the Minister one question by way of introducing a slight marker in the debate on this issue. Will she confirm that any person, particularly an independent

consultee, who had access to sensitive material that they would not otherwise have, would be bound by the same duties of confidentiality and could not, for example, put it in the newspapers?

Rosie Winterton (Labour, Doncaster Central)

I can give the hon. Gentleman that assurance.

Amendment agreed to.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause, as amended, stand part of the Bill.

Question agreed to.

Clause 34, as amended, ordered to stand part of the Bill.

Clause 35 - Duty to seek advice in connection with serious medical treatment

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 49, in

clause 35, page 20, line 2, after 'body' insert

'or other registered medical practitioner'.

The amendment follows on rather neatly from the group of the amendments that we have just discussed. My concern when I tabled it was to anticipate circumstances in which the medical treatment sought might be carried out by a private doctor or by a private doctor under some contract or other arrangement with the NHS. The Minister has already explained the need to be able to reach into the private sector to access information. I do not want to open up issues about privatisation or otherwise in the NHS, but I would like her assurance that if it was appropriate for private services to be sought, there would be some means of ensuring that independent consultation could be required, because otherwise the safeguards to the person without capacity would be diminished and might in certain cases lead to people who did not have their best interests at heart actually choosing the private route for no other motive than to avoid the independent consultation or controls.

Rosie Winterton (Labour, Doncaster Central)

Under the clause, the NHS bodies have a duty to consult the independent consultee. The amendment relates to the question of whether the duty to consult the independent consultee should fall on all registered medical practitioners working in the independent sector. There is a duty to consult if the treatment is arranged by, funded by, and provided in the independent sector. In other words, the independent consultee safeguard will be provided if it is provided, arranged and paid for by the NHS. However, it is very difficult for us to fund safeguards for all practitioners in the independent sector.

The situation is also very unlikely to arise because it is difficult to envisage how the independent sector could provide an unbefriended and incapacitated person with serious medical treatment that was then

funded privately without the involvement of a lasting power of attorney, a deputy, friend or relative, or social services.

The amendment is unnecessary, because it is almost impossible to envisage a situation in which such treatment could be provided, bringing in, in an unbefriended situation, the independent consultee, without there being somebody else involved. When we consider possible disputes, I can examine whether that might be an appropriate time to bring in somebody, as the hon. Member for Tiverton and Honiton suggested. At this stage, however, it is extremely unlikely that such a situation would arise.

Tim Boswell (Conservative, Daventry)

I am grateful to the Minister for her explanation. I had not expected that there would be widespread use of the provision, and she has provided some useful assurances on which I will reflect. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Rosie Winterton (Labour, Doncaster Central)

I beg to move amendment No. 222, in

clause 35, page 20, line 3, after 'provide', insert

', or secure the provision of,'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss Government amendment No. 225.

Rosie Winterton (Labour, Doncaster Central)

These are technical amendments designed to clarify the fact that the independent consultee should be consulted about serious medical treatment where practitioners are working in the independent sector and the treatment is funded and arranged by the NHS. This refers to the discussions that we have just had. The term ''NHS body'' will be defined in regulations and will include commissioning bodies.

The clause currently applies where an NHS body is proposing to provide serious medical treatment, which could be understood to exclude situations where an NHS body proposes to make arrangements for someone else to provide the treatment. If so, a commissioning NHS body would not be caught by the clause in the first place. I hope that that explains why we have tabled the amendments, and that the Committee will support them.

Amendment agreed to.

Rosie Winterton (Labour, Doncaster Central)

I beg to move amendment No. 223, in

clause 35, page 20, line 7, at end insert—

'( ) But this section does not apply if P's treatment is regulated by Part 4 of the Mental Health Act.'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss Government amendments Nos. 226 and 232.

Rosie Winterton (Labour, Doncaster Central)

The amendments deal with the interface between the independent consultee arrangements and the Mental Health Act 1983. The purpose of the independent consultee is to give extra protection to the most vulnerable people who lack capacity. As hon. Members will know, patients who are subject to the 1983 Act rightly already enjoy a range of protections and procedural safeguards—safeguards that will be strengthened by the Mental

Health Bill, which is undergoing pre-legislative scrutiny. Patients can be made subject to the 1983 Act only when strict criteria are met, and there are several ways in which that can take place. Obviously, because people who are subject to the Act already enjoy those safeguards, independent consultee arrangements are best targeted at people whose care is not subject to the Act.

Amendment No. 223 makes it clear that NHS bodies do not need to involve the independent consultee if the serious medical treatment in question is regulated by part IV of the Mental Health Act 1983. As I said, that deals with the treatment of patients detained under that Act for assessment or treatment.

Amendments Nos. 226 and 227 take a similar approach to clause 36. They make clear that an NHS body will not need to involve an independent consultee where accommodation is to be provided because a patient is to be detained in hospital under the Mental Health Act. Nor will NHS bodies have to involve the independent consultee if the patient is required to live in the accommodation in question under another provision of the Act. Amendment No. 227 makes an equivalent change to clause 37, so that local authorities are not required to involve an independent consultee when providing accommodation in which someone is required to live under the Mental Health Act.

So, the amendments will, between them, ensure that there is a clear distinction between procedures under the Mental Health Act and the arrangements for independent consultees. That will avoid unnecessary duplication and will ensure that independent consultees are targeted on people who do not benefit from the safeguards of the Mental Health Act. That will not affect the involvement of independent consultees in relevant decisions about accommodation for patients who are about to be discharged from the requirements of the Mental Health Act. I hope that hon. Members will support the amendments.

Amendment agreed to.

Amendment made: No. 224, in

clause 35, page 20, line 9, after 'interests', insert

'and, in particular, as to the matters mentioned in section 4(5)'.—[Ms Rosie Winterton.]

Angela Browning (Conservative, Tiverton and Honiton)

I beg to move amendment No. 244, in

clause 35, page 20, line 9, at end insert—

'(2A) Before treatment is provided the NHS body must seek a second expert opinion with respect to whether the treatment proposed is in the best interests of P.'.

In the previous group of clauses, the Minister exempted matters to do with existing mental health legislation. I understand why she did that. In that context, I raise a situation that is all too frequent and which I raised in previous debates in the House in the last two or three years. It relates to the treatment of people with learning disabilities and autistic spectrum disorders, particularly the latter.

Autistic spectrum disorder is outwith the existing mental health legislation, but all too often we find both at primary care level—referrals by GPs and treatment in the community—and at hospital level, that there is not the expertise for people and their carers to feel that the advice of a single practitioner is sufficient. There have been many cases of misdiagnosis because of single practitioners, who do not have expertise in a particular field. I stress that the matter goes beyond ASD.

At such times I feel that, particularly in this part of the legislation, where we are talking about serious medical treatment, it is not sufficient for the Bill to provide for consultation with the independent consultee. It should contain a requirement for a second professional opinion. I think that the medical profession would welcome that. In informal soundings, many people have been able to think of circumstances in which a second opinion would have been very helpful.

That second opinion does not have to be from another doctor with the required expertise who comes to the hospital. In this age, many second opinions are given by phone or webcam. If a decision has to be made about serious medical treatment, the patient and the independent consultee should have the protection of a second medical opinion. We hear of the odd rogue case—those are tragic but few and far between; I am thinking not of a Shipman scenario, but of day-to-day cases—in which someone is misdiagnosed or not referred for a specialist diagnosis.

Independent consultees will have all the training that the Minister outlined, which I welcome, but they may not have the expertise in a particular field of medicine to feel that it was appropriate at a certain point to demand a second medical opinion. That is why this should be incorporated in the Bill—so that it is part of the mechanism by which those serious decisions are taken.

In respect of the Mental Health Bill, I want much more structure in relation to how second opinions are given and the circumstances under which patients can demand them as far as specific mental health cases are concerned. The Minister excluded some of that from this Bill when speaking to a previous group of amendments, which is fine. I do not criticise that, but it leaves a large number of people who will fall through the net and for whom there will be great concern if the independent consultee does not have expertise in the relevant discipline of medicine that affects them. From what I have heard today, it seems unrealistic to think that an independent consultee—however good their training—would know when it was and was not appropriate to ask for a second medical opinion. That is why I want such provision in the Bill.

Rosie Winterton (Labour, Doncaster Central)

I understand the sentiment behind the hon. Lady's amendment, but I stress that it is already best practice to have access to a second medical or clinical opinion where there is reasonable concern from a third party. The independent consultee will be able to request that.

The Bill aims to give people without capacity equal rights to people with capacity, not more rights. The independent consultee will give people who lack capacity and who have no friends or family the same possibility of accessing a second opinion as people with capacity, and people without capacity who have friends or relatives to assist them. Independent consultees will provide an oversight of care and treatment. They will check that the person's views are being properly considered and provide a safeguard that the decision is based on wide and informed discussion.

We certainly agree that a second opinion would be useful in some circumstances, but another medical opinion would provide another medical perspective when what might be needed is an assurance that non-medical considerations, such as social and emotional ones, have been discussed. To provide that a second expert opinion must be provided in all situations seems bureaucratic, given the safeguard of independent consultees. Therefore, I ask the hon. Lady to withdraw her amendment.

Angela Browning (Conservative, Tiverton and Honiton)

I ask the Minister to reflect further on this matter, because it is unrealistic to think that independent consultees will have the medical expertise to know when to ask for a second opinion. Also, those with autistic spectrum disorders, whom I mentioned, would be outwith the remit of mental health services, but would, if a certain treatment were prescribed, cross the border to being covered by that legislation, unless the independent consultee were sufficiently well versed in matters to do with mental health issues to seek a second opinion at that point.

I give the Committee an example that I have given the House on many occasions. Many times—I emphasise those words—people with autistic spectrum disorders will suddenly present with alarming, challenging behaviour that is triggered not by some malfunction of the brain or because they have a mental health problem, but because a certain situation has traumatised them such that they behave in a certain manner. If they are not with people who know them and who know what triggers such behaviour, they often fall foul of mental health services. That can often lead to their being presented not to a person who knows all about them and who could calm them down and manage the situation, but to mental health practitioners. At that point, they cross the divide from this legislation to mental health legislation. Once that happens—this was relevant to the Bournewood case—they may be misdiagnosed and medicated.

It is quite common for autistic spectrum disorders to be misdiagnosed as schizophrenia, with all the implications of the medication that goes with schizophrenia. Unless someone dealing with the situation on the ground has the expertise to recognise that it might be a good idea to get a second opinion from a doctor who knows the patient and his condition, at that point the patient will cross from this legislation to other legislation. If there were a good reason for that happening, I would have no quarrel with it, but, in practice, we see it happening far too often today. I have asked the Department of Health to

monitor the number of people who cross the border and are misdiagnosed because one single doctor thinks they know best when, if they were obliged to take a second opinion, the course for the patient would be quite different. They would not be on medication for something that they do not have, with all the damage that such drugs do.

I simply ask the Minister to consider the matter. This group of people are on a border. An independent consultee is unlikely to have the necessary expertise unless they have a specialism, which would enable them to know that they should rightly demand a second opinion. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 225, in

clause 35, page 20, line 14, leave out 'treating' and insert

'providing, or securing the provision of, treatment for'.—[Ms Rosie Winterton.]

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 50, in

clause 35, page 20, line 17, after 'State', insert

'(subject to an affirmative resolution of both Houses of Parliament)'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to take amendment No. 52, in

clause 39, page 21, line 34, at end insert

'subject to an affirmative resolution of both Houses of Parliament'.

Tim Boswell (Conservative, Daventry)

Briefly, these two amendments would provide in clauses 35 and 39 respectively for decisions to be taken by the affirmative resolution procedure. The matters in question are not simply administrative. One relates to the definition of serious medical treatment and the other to any proposals to expand the role of the independent consultee service. Those are substantial matters in which the House and Parliament would properly take an interest, so I hope the Minister reflects on whether the affirmative resolution procedure is appropriate.

Rosie Winterton (Labour, Doncaster Central)

I assure the hon. Gentleman that I understand the reasoning behind his amendments. He wishes to ensure full parliamentary scrutiny of any regulations that are drawn up to specify which serious medical treatments will trigger the involvement of the independent consultee.

We certainly will consult widely on the content of the regulations and the reasons for inclusion of medical treatments in the list will be widely known, discussed and, we hope, agreed among the stakeholders that have worked with us on the Bill. The regulations will be laid before Parliament under the negative resolution procedure, and during that time any hon. Member may call for a debate. That is the appropriate way to develop the regulations, which may be subject to revision as medical treatments change.

Clause 39(1) enables us to extend the role of the independent consultee to other categories of people and situation. That provision is significantly different from all other regulation-making powers in the Bill. It

will permit the extension of the independent consultee function to new situations. It could be argued that that provision was not necessarily contemplated by Parliament during earlier stages, however, and I am certainly prepared to reflect on the hon. Gentleman's amendment and consider finding a way to allow Parliament greater scrutiny of that aspect of the regulations. I therefore hope he will withdraw the amendment.

Tim Boswell (Conservative, Daventry)

On precisely that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause, as amended, stand part of the Bill.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss new clause 23.

Rosie Winterton (Labour, Doncaster Central)

There are several differences between new clause 23 and clause 35. I have already said why we do not want to change ''consultee'' to ''advocate''. The new clause also focuses on making representations. I understand why my right hon. Friend the Member for Coatbridge and Chryston proposes that; he wants to ensure that the incapacitated person's wishes and feelings, beliefs and values are the key factors when making decisions about serious treatment. Again, I refer my right hon. Friend to our amendments on that question, which clarify the role of the independent consultee.

Another difference between the new clause and the Bill is the review of ongoing treatment. The new clause would require review of ongoing treatment by an independent advocate if, because of its urgency, he had not been involved in the initial decision. We have not included such a provision because we want the Bill to set a clearly defined point at which the statutory duty of the decision maker to consult the independent consultee should apply. However, as part of our consultation on developing regulations linked to clause 39(1), we intend to consider the functions of the independent consultee, which will include considering whether his role should include reviewing ongoing

decisions taken in an emergency without involving the independent consultee. I can give my right hon. Friend that assurance.

The new clause would legislate for the regulations on medical treatment to be split into three categories. We do not want to specify that decisions on certain treatments should always go to the court. It would be needlessly bureaucratic to require decisions to go to court when everyone agrees, and it would not be helpful to create a separate category of treatments for which the independent consultee could request a second opinion. As we have just discussed, there is already the best practice of having access to a second medical opinion.

The new clause includes subsections that are identical to amendment No. 176, which we covered in our debate on clause 34. I hope that the reassurances I gave then indicated some safeguards that we believe are already built into the Bill.

I say again that we will widely consult partners outside government on the development of the independent consultee service. I hope that I have been able to reassure my right hon. Friend on the points that he raised through new clause 23 and that he will not press it to a vote.

Tom Clarke (Labour, Coatbridge and Chryston)

I apologise to my hon. Friend the Minister because I took her by surprise—she was expecting me to begin the debate with a speech. The new clause is rather like a probing amendment in that one seems to get more out of people when one takes them by surprise. In view of her assurances, there is every possibility that this matter will be given an airing on the Floor of the House, so I shall not press new clause 23 to a vote.

Question put and agreed to.

Clause 35, as amended, ordered to stand part of the Bill.

Further consideration adjourned.—[Ms Bridget Prentice.]

Adjourned accordingly at thirteen minutes to Six o'clock till Thursday 4 November at half-past Nine o'clock.