Mental Capacity Bill

Public Bill Committee, 4 November 2004.

Standing Committee A

Clause 36 - Duty of NHS body to seek advice before providing accommodation

Rosie Winterton (Labour, Doncaster Central)

I beg to move amendment No. 228, in

clause 36, page 20, line 32, leave out

'of less than 28 days'

and insert

'which is less than the applicable period'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss Government amendments Nos. 229, 230 and 234.

Rosie Winterton (Labour, Doncaster Central)

Clause 36 deals with the duty of a national health service body to seek the advice of the independent consultee when it proposes to move an unbefriended person who lacks capacity into or between a hospital or care home. Clause 37 places a similar duty on local authorities.

Amendments Nos. 228 and 230 have been introduced to clarify the fact that all unbefriended people without capacity who move into care homes or residential accommodation arranged or funded by either the NHS or local authorities will have access to an independent consultee after eight weeks.

Clause 36(2) provides that the independent consultee safeguard applies unless the accommodation arranged or provided by the NHS is likely to be for a continuous period of less than 28 days. That includes accommodation in either a hospital or a care home. Under clause 37, which deals with accommodation provided by local authorities, the safeguard applies after eight weeks' residential accommodation. That means that we have two different time periods for people who may be in the same accommodation.

Two identical patients could end up in residential care homes, one placed by an NHS body and one placed by a local authority. One would have an independent consultee if the period was expected to be more than 28 days, whereas the other would have an independent consultee only if the period was more

than eight weeks. We cannot justify that distinction. The amendments therefore bring the time limit under clause 36 in line with clause 37 for all people in care homes or residential accommodation. The time limit will remain at 28 days for people in hospitals.

Tim Boswell (Conservative, Daventry)

I am grateful to the Minister for explaining the amendments so clearly. Will she clarify the position on assessments, either now or later in our discussions? The duties imposed under clauses 36 and 37 are about seeking advice, but I take it that they do not cut across the professional duty of the NHS body or the local authority to seek professional assessment of the person's condition before even suggesting a placement.

Rosie Winterton (Labour, Doncaster Central)

I can give the hon. Gentleman that assurance. We will also be considering annual reviews of accommodation.

Government amendments Nos. 229 and 234 ensure that all unbefriended people without capacity who move into hospitals or residential accommodation arranged or funded by the NHS or local authorities will have access to an independent consultee as soon as it becomes apparent that they are likely to be accommodated for longer than 28 days or eight weeks. When deciding on care arrangements, a health or social care professional may well consider at the start that the likely stay will be less than 28 days or eight weeks, but the period may turn out to be much longer. Under the Bill as drafted, P would not have the benefit of the independent consultee. The two amendments will put that right. I hope the Committee accepts them.

Amendment agreed to.

Amendments made: No. 229, in

clause 36, page 20, line 34, at end insert—

'( ) If the NHS body—

(a) did not seek advice from an independent consultee before making the arrangements because it was satisfied that subsection (2)(a) or (b) applied, but

(b) subsequently has reason to believe that the accommodation is likely to be provided for a continuous period—

(i) beginning with the day on which accommodation was first provided in accordance with the arrangements, and

(ii) ending on or after the expiry of the applicable period,

it must seek advice from an independent consultee.'.

No. 230, in

clause 36, page 21, line 4, at end insert—

'( ) ''Applicable period'' means—

(a) in relation to accommodation in a hospital, 28 days, and

(b) in relation to accommodation in a care home, 8 weeks.'.—[Ms Rosie Winterton.]

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

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to take the following: New clause 22—Right to an advocate in connection with the provision of accommodation—

'(1) The specified circumstances in which independent advocacy must be made available shall include consideration of a major change in a person's accommodation and or support where the accommodation on support is to be paid for in whole or in part from public funds, or would be but for the fact the person's resources

exceeds those set in regulations under section 22 National Assistance Act 1948 and where it appears to the relevant authority that P may lack capacity in relation to that major change in P's accommodation and/or support arrangements.

(2) A major change for the purposes of this section means any change

(a) to accommodation for a continuous period intended to or likely to exceed 28 days, or

(b) any new contractual arrangements for providing support, for a person who lacks capacity to agree to the changes, where the accommodation or support is to be paid for in whole or in part from public funds or

(c) where the arrangements need to be made a matter of urgency.

(3) Any NHS body or local authority must seek and take into account representations from in independent advocate if it is liable to provide an assessment or assessments under any of the following for the person P where it appears to the relevant authority that P may lack capacity in relation to specific matters connected to that assessment or assessments:

(a) section 47 NHS and Community Care Act 1990 (and for the avoidance of doubt this includes those assessments under section 3 of the Community Care (Delayed Discharges etc) Act 2003,

(b) section 117 Mental Health Act 1983,

(c) section 1 and section 5 Carers and Disabled Children Act 2000,

(d) assessment under the Continuing Care (National Health Service Responsibilities) Directions 2004 or Delayed Discharge (Continuing Care) Directions 2004

(e) any assessment for services which fall within the functions of a local housing authority (within the meaning of the Housing Act 1985) or any assessment for support under the Supporting People (England) Directions 2003, the Supporting People Grant (England) Guidance 2003 or assessment for charges under the Local Authorities (charges for Specified Welfare Services) (England) Regulations 2003 or

(f) any care planning for in-patient care, care following discharge or continuing care under the Care Programme Approach.

(4) Where emergency accommodation and support arrangements have to be made, these arrangements shall be reviewed as soon as possible, taking account of representations made by the independent advocate.

(5) ''NHS body'' has such meaning as may be prescribed by regulations made for the purposes of this section by

(a) the Secretary of State, in relation to bodies in England, or

(b) the National Assembly for Wales, in relation to bodies in Wales.'.

New clause 25—Duty on public body to assess capacity—

'(1) Where it appears to the relevant authority that a person (''P)'' may lack capacity in relation to matters connected to—

(a) the assessment of P's needs for services which may be provided or arranged by the relevant authority (''assessment of needs'') or

(b) the provision of services to P which may be provided or arranged by the relevant authority (''service provision decision'')

no part of this Act will authorise a person to do an act connected with the assessment of needs or service provision decision unless the steps set out in subsection (3) are followed.

(2) For the purpose of subsection (1) and (3) a ''relevant authority'' means either—

(a) a local authority exercising functions under section 47 of the National Health Service and Community Care Act 1990,

(b) a local housing authority within the meaning of the Housing Act 1985, or

(c) a Health Authority, Health Board, Special Health Authority, Primary Care Trust or National Health Service trust.

(3) The relevant authority must:—

(a) make arrangements for P's capacity, in relation to the matter in question, to be assessed;

(b) notify P of the help available from, and assist P (if P so requires in contacting, an independent advocate under the arrangements under section 34, (such help may include assisting P in communicating his views);

(c) consider whether P requires any additional assistance in communicating his views (whether by talking, using sign language or other means); and

(d) where P has been assessed to lack capacity in relation to the matter in question, to make such enquiries as are necessary to be satisfied that the matter does not fall within the scope of the authority of—

(i) a donee of a Lasting Power of Attorney granted by P,

(ii) a deputy appointed by the court, or

(iii) an advance decision to refuse treatment (where treatment is being considered).

(4) In carrying out an assessment under (3)(a) the relevant authority must take into account the views of:

(a) P with or without the assistance of an independent advocate providing support in accordance with subsection (3)(b), and

(b) anyone named by P as someone to be consulted on the matter in question or on matters of that kind, and

(c) people who are, or are likely to be, responsible for the provision of care or treatment to P in a professional capacity, and

(d) if it is practicable and appropriate to consult with them, any other person engaged in caring for P, whether or not in a professional capacity.'.

Joan Humble (Labour, Blackpool North and Fleetwood)

I rise to welcome the fact that clause 37 will introduce a new duty on local authorities to seek advice before providing accommodation. The whole thrust of the legislation is about seeking advice, consultation and so on, but certain organisations that represent people with disabilities still have concerns. My right hon. Friend the Member for Coatbridge and Chryston (Mr. Clarke) has tabled two new clauses and I want to speak to them briefly. We have had a discussion—he sends his apologies that he cannot be here today—so, on his behalf and with some guidance from Mencap, I shall make one or two comments.

First, new clause 22 is about the right to have an independent advocate in connection with the provision of accommodation. We have had a lot of debates about independent consultees and independent advocates. My hon. Friend the Minister will not be surprised that I prefer the role of an advocate, but I recognise the role that she has inserted in the Bill for independent consultees.

Clause 37 states that a local authority must seek advice from an independent consultee as to P's best interests when providing accommodation. However, it makes no provision for when in the decision-making process a local authority should seek that advice. As mentioned in earlier discussions, getting in at the start of the process can be absolutely vital. If independent advocates or consultees do not get in at an early stage, either the decision is a fait accompli or there is conflict about it as people have reached entrenched positions.

My right hon. Friend's new clause 22 spells out more clearly the appropriate trigger points for when

an independent advocate should be brought into the decision-making process—namely, at the point at which the assessment or assessments are made. That would include a community care assessment or review under section 47 of the National Health Service and Community Care Act 1990, an assessment under the supporting people provisions, an assessment regarding aftercare under section 117 of the Mental Health Act 1983 or a care programme approach, if that is being used on discharge from a psychiatric hospital.

New clause 25 would establish a duty on a public body to assess a person's capacity whenever that was in doubt before making an assessment of that person's need for health or social care or housing, or for the provision of those services. The Bill starts off presuming capacity, but as has been pointed out on several occasions in debates in Committee and on Second Reading, we need a culture change. Sadly, all too often, social care professionals and others who make decisions on behalf of individuals with a variety of disabilities tend to assume incapacity rather than capacity. However, we are trying to make the issue of capacity absolutely central through this legislation, so new clause 25 has been suggested to ensure that the examination of capacity must be undertaken before any decision is made.

Sadly, I meet all too many people who assume that because an individual is incapable of making one decision, they are incapable of making all decisions. Sometimes it is just easier to jump in and say, ''This is what we're going to do on your behalf.'' Decisions about accommodation can be vital to a person's well-being, yet sometimes decision makers will leap in and assume that a person is not capable of making a choice. The decision might be complex, but the person ought to be involved nevertheless. The new clause provides that those helping to support a person must actively ensure whether a person has the capacity to be involved in decision making and that they are actively involved in it.

The authority given in the new clause would require the local authority to assess a person's capacity in relation to the matter in question. I am sure that the Minister will say that that is implicit in the Bill, but sometimes such things need to be specified. The local authority would be required to inform the person that help was available from an independent advocate. The Minister knows that I think independent advocacy services should be available to people who need them. The local authority would also have to consider whether the person had any communication needs and would have to make the necessary inquiries to be satisfied that the person did not have the authority to make such decisions, or that the situation was not covered by an advance refusal of treatment.

The new clause is essentially about changing attitudes by setting a minimum standard that all authorities would have to meet when undertaking an assessment for capacity. It would turn P from the passive recipient of service to an active participant and decision maker, which is surely the thrust of the legislation. If we specify that in the new clause, we will make our intention absolutely clear and say what we want to get from the Bill.

Tim Boswell (Conservative, Daventry)

Briefly, I am delighted that the hon. Lady has spoken to the new clauses tabled by the right hon. Member for Coatbridge and Chryston and it is right to pause for a moment to consider them. I do not intend to reopen the issue of advocacy. That is in no sense to suggest that it has gone away, but at this stage it may not be appropriate to add much to what has been said. However, I would like to talk a little about the process of assessment set out in new clause 25.

The Minister has perhaps already noticed—I trailed this in my intervention—that the formal position is to say that local authorities are of course responsible for their professional assessments. I anticipate a response to this point. As I said right at the beginning of deliberations in Committee, under the Bill—I am adding this point to what she may want to say—the process of assessing an individual's mental capacity or otherwise must effectively be continuous for the person with care of that individual, because mental capacity is deemed to be functional and it may fluctuate or return.

It is strictly unprofessional not to consider capacity moment by moment. To put it another way, a decision made at any one time could be challenged in court if the person had returned to mental capacity and if the NHS body—or, in the case of clause 37, the local authority—did not take that into account. So, there is a very heavy test that requires public authorities to do things properly. If we are honest, I suspect that we have fairly strong views that that has not always happened.

Most of us, as constituency MPs, become engaged indirectly in tussles over whether local authorities have carried out assessments on appropriate accommodation, let alone—in certain cases, this represents a substitute—carried out the placement. Sometimes, they delay the matter until the last possible moment, or until it is challenged.

It is not our purpose to widen this into a general debate on the care system, but I make the point to the Minister that there should be clear understanding among, and guidance to, NHS bodies—and, in relation to the next clause, local authorities—on the general terms of the Bill and on the specific obligation to have regard to both the professional assessment of capacity before organising placements and the independent consultee service, which is a separate wheel on the coach. Those two should not be muddled together.

My hon. Friend the Member for Sevenoaks (Mr. Fallon) has raised a point that emerged in correspondence with one of his constituents who is associated with rest care. It relates to village communities, rather than residential or other types of care homes. The Minister will say that that is irrelevant to the clauses because a care home is either registered or not, and we are discussing additional safeguards for those who are placed in care homes. However, it opens the wide issue, already floated in the Committee, about people who are placed in the community or are changing from one private accommodation to another after an assessment that

suggests that they would be better off in the community. Whether a care village would be treated as a registered care home or otherwise is relevant.

The point is put rather interestingly in the letter. I am not sure that I have local experience of the issue myself, although my hon. Friend clearly does. The letter says:

''Unfortunately, village communities have been designated unpolitically correct by some local authorities, in the mistaken idea that to be a larger setting than an ordinary house in an ordinary street is somehow shutting the residents away.''

The writer is making a plea, slightly outside our considerations, that local authorities should bear that point in mind when compiling their assessments.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The hon. Gentleman raises an important issue about the establishment of village-type settings for people with severe learning disabilities and about the way in which such people are accommodated and supported. However, does he not agree that the Bill will ensure that they benefit from the rights and protections that it will give anyone who lacks capacity? In some ways, the Bill will ensure that that group is more carefully involved in the decision-making processes of local authorities, health authorities and relatives.

Tim Boswell (Conservative, Daventry)

Yes, I readily concede that. That is one of the Bill's attractions and I am not seeking to subvert the Bill. In principle, such groups would be brought within the radar screen. We all know that that has not always happened in the past, although it should have done. For the avoidance of doubt, perhaps I should have added that I believe that accommodation is cardinal to the welfare and best interests of persons with learning disabilities. Many of us have interests in that matter.

I agree that the Bill has strengths. I am saying that under clauses 36 and 37 the accommodation in question is tied to residence in hospital or registered care. We should not shut our minds to the range of opportunities that may be convenient for people. I hope that the assessments carried out by local authorities and NHS bodies and any advice that they may subsequently be required to take from independent consultees are properly weighed and that the right placements are made. I have no ideological view about where the placements should be, and they will vary with the individual.

I have a final point about village communities, which was prompted by the intervention of the hon. Member for Sutton and Cheam (Mr. Burstow). It is, in a sense, a rider to new clause 25, which was tabled by the right hon. Member for Coatbridge and Chryston. Subsection (3)(a) of the new clause talks about making an assessment. In keeping with the Bill's spirit of consultation, subsection (4) goes on to say that

''the relevant authority must take into account the views of:

(a) P . . .

(b) anyone named by P as someone to be consulted . . .

(c) people who are, or are likely to be, responsible for the provision of care or treatment to P in a professional capacity, and

(d) if it is practicable and appropriate to consult with them, any other person engaged in caring for P, whether or not in a professional capacity.''

The missing link is any reference to other persons who may be neighbours of P or associated with P. One of the attractions of residential care communities, touched on in the letter received by my hon. Friend the Member for Sevenoaks, is that people feel happy living alongside each other because they are friends and have confidence in each other. Those who may have lived as friends and neighbours of P for many years would probably be the right people to consult.

Applying that concept to the provisions of the Bill, the duty to seek advice set out in clause 36 is additional to the duty to make a proper assessment. Bearing in mind the principles of the Bill set out in clause 1, and the need to consult under clause 6, for example, we see that it is important that when making a professional assessment, an NHS body or a local authority, particularly when dealing with somebody with learning disabilities who may not have had have full exposure to opportunities to express their views and feelings and may not have had anyone take any notice of them, is able to include the views of any relevant person. That is what the right hon. Member for Coatbridge and Chryston is seeking through his new clause, to which I have added a potential rider.

Beyond that, there should be the additional safeguard of the independent consultee process, remembering that the local authority or NHS body still has an obligation to do the right thing for that person, and might have to change that, either on the annual review or if circumstances change. The Committee shares a common view—there is no political difference between us—that the people in question have not been given a fair go in the past for a variety of reasons. Put another way, there is a huge variation in practice, from good to indifferent. I agree with the hon. Member for Sutton and Cheam that one way to deal with the problem is to have the safeguards in the Bill that are already available to people—typically but not exclusively, people with learning disabilities. We also have the code, which we will no doubt touch on later, and NHS bodies and local authorities have professional obligations. All must be applied and be seen to be applied to the best interests of P. If the Minister sticks to that and can give assurances in respect of those concerns it would be helpful to the Committee.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I shall start by picking up on something that the hon. Gentleman said, then speak to the new clauses and return to issues around advocacy, which the new clauses provide an opportunity to explore further.

On the question of care villages, there are questions about what happens when a person with complex multiple learning disabilities is in a long-stay institution and about the nature of the process of deciding how services are to be reprovided. At what point do the Government expect an independent consultee to be brought into that process, which would initially be kicked off by a health body and which would involve assessments, probably by a

combination of health and social care professionals. How early in the process would that happen?

Also, to what extent can bodies undertaking assessments have regard for their resources when making decisions about the extent to which they will facilitate enabling P to communicate his views, wishes and feelings to an independent consultee or anyone else? How might the Bill affect such reprovisioning? One criticism that I have heard about the reprovisioning of services at St. Ebba's, which is in the constituency of the hon. Member for Epsom and Ewell (Chris Grayling) but at which constituents of mine are resident, has been that the views, wishes and feelings of residents were not adequately assessed and taken into account. Even the relatives felt that they had not been fully engaged. Clearly, the Bill gives new rights to P and P's relatives, such as new abilities to pursue the authorities more vigorously regarding what they believe to be in P's best interests. Will the Minister comment on that?

Ann Winterton (Conservative, Congleton)

Does not what the hon. Gentleman has just said reinforce the current situation? As long as independent consultees for and relatives of long-term residents in the kind of home that he mentioned represent P to the best of their abilities, P will probably get better service, but will not the process still be resource driven even with the new rights? If the resources are not there, how can the level of care that would be appropriate in an ideal world be provided for those residents?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The hon. Lady makes a fair point: we do not live in an ideal world, and we probably never will. Neither will we probably ever have plentiful resources available to meet every need at the right time in the right place. Her point is well made.

We need to keep pressing the point about the extent to which authorities can take resources into account and the extent to which that can become a way in which the authority gets its wish granted over the wishes, needs and feelings of the relatives and, more importantly, P. That is why I keep returning to this point. The Minister said that he will come back to us on that, but it is so to the interaction between public authorities discharging their responsibilities under the Bill and under other legislation on assessment processes that it has to be clear.

That brings me to assessments. It is important that the Bill be clearer about where and when public authorities have a duty to bring in an independent advocate or independent consultee—obviously, I prefer the former title, but for the sake of getting a clear response about how the Bill will work I will use the Government's terminology. The Bill also needs to be clear about the interaction between social services authorities and health authorities, for example, in the complex decision-making processes related to discharge from hospital, for which a hierarchy of assessments needs to be gone through, such as assessments about someone's entitlement to NHS continuing care, whether they are ready to be discharged, which is a partial assessment, and about their ongoing community care needs.

It is therefore important to be clear about on whom the duty rests at the beginning of that process. Does the duty to bring in an independent consultee at that point rest with the NHS or the social services department? Does the duty, and therefore the responsibility for funding the independent consultee's work, switch if the person is deemed not to be entitled to NHS continuing care? At the point at which it becomes a social services assessment, does the social services department pick up the bill for the independent consultee's work? Those things need to be clear, because there is scope for local dispute between the NHS bodies and social services about who has responsibility for funding independent consultees.

In our last sitting, my hon. Friend the Member for Chesterfield (Paul Holmes) rightly asked the Minister to say more about the ''pay and rations'' aspects of providing an independent consultee service, and about how the consultees will be made independent and put at arm's length from the bodies that have a duty to bring them in. Will the Minister say something about that?

I return to whether there should be a consultee or an advocate, which it is and how they work, and whether it is possible to draw a line around advocacy and to define it in a way that meets the needs of parliamentary counsel and the Government. Some body language—shakes of the head—communicated the view that that would be difficult. Nevertheless, I put it to the Minister that in the Mental Health Bill there is a proposition that there should be an independent Mental Health Act advocate. It seems, therefore, that parliamentary counsel has found a way of putting that into the language of Bills and has found a way of defining it to meet the need in that respect.

Given that a substantial number of people who will be subject to compulsory treatment lack capacity, we need to be clear how the new independent mental health advocates will work and how, when they are appointed under the Mental Health Act, they will be prevented from providing any of the kind of advocacy that is described in the amendments under discussion today. Will it be possible for someone who acts as an independent health advocate under another piece of legislation to act as an independent consultee under this legislation?

Mrs. Humble rose—

Mr. Boswell rose—

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I have a choice—I shall give way first to the hon. Lady and then to the hon. Gentleman.

Joan Humble (Labour, Blackpool North and Fleetwood)

The hon. Gentleman raises an interesting point. There will be, for example, cases in which elderly people who are in an acute hospital, who have mental health problems and whose capacity may be in doubt, are being relocated to residential accommodation in the community. Who will look after their needs? Will it be the independent consultee under the provisions of this legislation, the proposed Mental Health Act advocate, or the local social worker in consultation with doctors?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

That is an excellent question, and I look forward to an excellent answer to it from the Minister. Someone who is an elderly, mentally infirm patient—perhaps a dementia sufferer—might be provided with services by the local mental health trust. It therefore must be clear whether in those circumstances they and their relatives will be able to say, ''We think we should be able to have access to an independent mental health advocate for P, rather than an independent consultee.''

How will it be made clear which is the relevant entitlement and how that entitlement is triggered? One of the entitlements may be more generous because presumably, in the context of the Bill, P will be able to benefit from a consultee only if he or she is unbefriended. That relates to a point made by the hon. Member for Daventry (Mr. Boswell), that others who lack capacity in a community or village setting might be friends of P. It would be useful if the Minister said whether there are any circumstances in which an appropriate authority might be able to pray in aid the fact that a person is not unbefriended, because there are other members in that person's community who can be consulted, and that therefore it does not have a duty to bring in an independent consultee. It would be useful to know whether others who lack capacity could never be classified as friends, for the purposes of the legislation, in relation to the appointment of the independent consultee.

Tim Boswell (Conservative, Daventry)

Just to add to the palette of difficulties that we as a Committee are teasing out, another point occurred to me when rereading the Bill. Circumstances might arise in which a person had been admitted to hospital for an acute condition—perhaps arising from self-harm, for example—and in which an independent consultee could be involved while the NHS body was considering courses of treatment or referral. Will the hon. Gentleman seek the Minister's assurance that any independent consultee would not be precluded by the legislation from making a recommendation that such a person should be referred back to a mental hospital for further treatment if that is appropriate?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am grateful to the hon. Gentleman for asking that question; I will let it bounce off me and look to the Minister for a response.

Let me tease out a little further something else that the Minister said to the Committee: that the Department—it would be useful to know which Department we are talking about for this purpose—would widely consult partners outside Government on the development of the independent consultee service. She went on to say that advocates could train to be independent consultees. It would be useful if she let us know which partners she has in mind. Do they include existing, established advocacy providers? It is crucial that advocacy services sign up, if that is possible, to the proposed developments. It would be helpful if the Minister told us with which established advocacy networks her Department has had discussions on the developments. As I understand it, no established advocacy networks or associations have so far shown a willingness to sign up to the proposals, because they do not believe that they constitute advocacy, so could the Minister say which members of staff would be

likely to take on the role? That goes back to the question asked by my hon. Friend the Member for Chesterfield at the previous sitting.

Those are burning questions for many outside the Committee, as I am sure the Minister understands. That is why I am doing my best to ensure that they are put to her today. I look forward to her response.

Angela Browning (Conservative, Tiverton and Honiton)

I, too, support the new clauses. If I may, I shall paint a picture for the Committee in respect of new clause 25 and assessing capacity. We have heard much about people in a general hospital—I am thinking particularly of elderly people who are admitted, for example, to trauma wards because of fractures and similar things, but who may have a complex range of conditions, including some degree of mental incapacity resulting from depression or related illnesses, which may or may not be medicated. Clearly, the usual procedure when someone is admitted to hospital is that any medication that they are already taking is identified and continued. However, if we consider the vast spectrum of the frail elderly who would fall within that group, it is easy to see that a lot of people will slip through the net.

I shall paint a picture for the Committee based on my dear late mother's situation only months before she died last year. She had Parkinson's disease. She was very frail, very elderly and in residential care. Parkinson's, as people will know, is very debilitating; it was a terrible affliction for my mother, and the longer she had it, the more it affected her quite severely. I recall going to see her one day because someone from the Parkinson's Disease Society was coming to talk to her about the local group. I was astonished by how my mother picked up when the lady from the society was talking to her; she was quite perky. I was astonished at how well she seemed and how articulate she was, and I noticed the same thing later in the year, when she was admitted to hospital. She was there for nearly three months and was genuinely very poorly, but the moment the doctor came in my mother, being one of the old school, would suddenly take on a new dimension and have an articulate conversation with the doctor.

The lady from the Parkinson's Disease Society, for which I have great admiration, said in passing to my mother, ''Oh, we're doing a lot of research at the local university. I wonder whether you'd be interested in taking part.'' My mother beamed and said, ''Yes, I would.'' The lady asked, ''Shall I put your name down?'' and my mother replied, ''Oh, yes. Put my name down.'' I just sat there, because after all it is not for bossy daughters to intervene at such a stage, but I was quite astonished by how the conversation went. No definition or details of the research was given, but her name was now on the list. Let us imagine that someone asked me at that point whether my mother was able to take on board what the term ''research'' might mean. I was concerned because my mother had stopped going to out-patient eye clinics because she was simply no longer well enough to handle going to a hospital out-patient clinic, so the idea that she was volunteering for unknown research filled me with horror. I was tempted to intervene and say, ''Take her

name off the list at once,'' but I thought, ''No, I must not do that,'' because she seemed in full control of the conversation.

I tell that story because there is a fine balance to strike when judging the capacity of elderly people. The assessment needs to be made by somebody who knows the person well and is familiar with all the material facts about them and any other related matters affecting them. When everyone else had left, I asked my mum what sort of research she thought it would be, and she said excitedly that she did not know, as if she was going on a great adventure. I then asked her, ''What do you think they'll do? Will they want some of your blood, or will they want to take an X-ray? You don't think they'll want to do brain surgery, do you?'' She simply replied, ''I hope not, dear.'' As it happens, events overtook her and she died a few months later.

I picture that occasion with her now, and I can envisage all types of scenarios involving that type of person, of which there are many. New clause 25(3)(b) states that ''an independent advocate'' is needed to make accurate assessments and I agree, because I wonder what might have happened had I not been present at that conversation that I have just described, as well as a few other times in the hospital when my mother perked up for the doctor—she would be flat out for 24 hours, but she would perk up for the doctor. It is very worrying to think how people who do not have somebody close to them or someone to act as an advocate for them will make some of the decisions that have to be made, particularly the big decisions covered by the clauses.

This morning, I advised a Member who had come to me with a problem: a social services department had refused to assess somebody with an autistic spectrum disorder on the ground that they had an IQ of over 70 and that therefore their needs could not be anything like those of somebody with a learning disability. I provided the necessary Government guidance on that, which clearly shows that it has a statutory duty to assess that person. In our casework, we frequently deal with people being unable to access their rights under existing legislation.

I have one more anecdote from the Browning casebook. This week, an elderly lady in my constituency who had been admitted to a general hospital was discharged to a cottage hospital. We have discussed the 28-day period, but elderly people sometimes stay in hospital for longer than that. Because that lady had no relatives, she had nobody to act as an advocate for her. Those who have some knowledge of Devon geography will understand my point when I say that the lady was discharged to a cottage hospital in the middle of Dartmoor. The only person this lady has any contact with is her next-door neighbour. My hon. Friend the Member for Daventry spoke about the friendly neighbour who does not have any legal responsibility for a person. She is a kind, interested, elderly neighbour, and she was the only person who visited that lady while she was in the general hospital. The elderly neighbour phoned me last Thursday and said, ''They are going to discharge her tomorrow to the middle of Dartmoor. It will be impossible for me to visit her there. She will have no

visitors, and goodness knows how long she will be there. Is there anything you can do?'' I am pleased to be able to say that there was, and she has now been discharged to our local cottage hospital.

Such cases arise almost daily, and I worry about those in which there is nobody to advocate for people and to make sure that certain factors are taken on board, such as the location of where people are being sent. That may be a long-term decision; someone might be being placed in a nursing or residential home, or a care home if they have a learning disability. The whole picture must be taken into account. If someone is put at a certain location, will it be more difficult for the few people they know to continue their relationship and contact with them, and what might be the detrimental effects on P if they are divorced from the very few people with whom they have any form of social contact?

All those decisions have to be made, and sometimes—as we know, and as is stated—they have to be made in a hurry because of an emergency or a crisis. I support the new clauses. People may well say that there is already legislation that gives a statutory duty to do this or that, but hon. Members know a lot of people for whom such things simply do not happen. Somebody has to prod and to ask the difficult question; somebody has to take the role of the awkward squad to get the right outcome for P. Unless there is an independent advocate to do that, the wrong decisions are made and people are affected badly by them. I support what has been said about the need to assess capacity and about how to provide advocacy, especially when big decisions are taken. I hope that the Minister will look kindly on the amendments.

Ann Winterton (Conservative, Congleton)

Once again, we have had a wide-ranging debate, which has gone to the heart of what some members of the Committee feel—the service we are offering does not fulfil the advocacy role. However, I hope to reassure hon. Members in that respect.

It will come as no great surprise to hon. Members that we cannot accept the new clauses for several reasons, not least because they would expand the independent advocacy role to a much wider setting than we believe to be deliverable. It would be extremely difficult to define some assessments for which the new clauses state there should be advocacy.

I shall repeat what the new independent consultee offers. We want to build on the very best of advocacy, which was described by my hon. Friend the Member for Blackpool, North and Fleetwood (Mrs. Humble). In the case cited by the hon. Member for Tiverton and Honiton (Mrs. Browning), if someone was considering a long-term move and was unbefriended, the independent consultee would be able to talk to neighbours and friends when considering all the options. That is the point: the service we are describing states that what we want is to interpret or represent someone's feelings and to consider the wider circumstances, such as what options are available.

For example, in the case that the hon. Lady described, an independent consultee might say about

a certain place, ''Well, it is extremely attractive, it has nice grounds and a good atmosphere, but on the other hand there is somewhere else that would allow a neighbour to visit.'' The decision would then be which was more important to the person concerned. What we propose is much wider and it covers exactly the points raised by the hon. Lady.

I reiterate that in developing the new service we had to consider to whom it would be most appropriate to apply it. Thinking about all the circumstances, we decided that, in trying to define advocacy services, which are different depending on where they are, we had to consider what happens at present to people who are unbefriended—those who have no one on their side.

We had to devise a system that would give them a service that was designed for them. I strongly believe that what we propose is advocacy plus; it is something extra on top of what people might usually associate with advocacy services. As we said, funding of £6.5 million is available for it; it is a statutory service. We also said that we want specific national standards and training for the service. There is no reason why people who are advocates at present should not undertake that extra training.

The Mental Health Bill defines particular circumstances in which advocacy comes in; because conditions have to be met, it is easier to define. Therefore, one can say that there is a clear line in the process where advocacy can be brought in. That does not mean that someone who is an advocate under the Mental Health Bill should not be an independent consultee as we have defined the role. That involves building on the best of services and people who are already trained, as well as building on how primary care trusts and social services create that independence at the moment. In many senses, it involves professionals who are able to make that judgment. We need to ensure that they do that through the training we provide.

Several hon. Members rose—

Ann Winterton (Conservative, Congleton)

I give way to my hon. Friend the Member for Blackpool, North and Fleetwood.

Joan Humble (Labour, Blackpool North and Fleetwood)

I thank the Minister for outlining that, but I am reminded of our earlier discussions on terminology and too many different titles. Mrs. P, the elderly person who is mentally infirm and in hospital for treatment for a medical condition, may be faced with an individual coming into that hospital wearing two hats—independent consultee and independent advocate—whether or not those apply under the Mental Health Bill. Surely it would be much simpler for Mrs. P, lying in her hospital bed, to use one title for one person who comes in and offers her the support she needs, instead of the hospital, or whoever, deciding to invite the same individual under two titles.

James Cran (Conservative, Beverley and Holderness)

Order. Before the Minister speaks, although I know this is a very important debate, I must insist on short interventions.

Ann Winterton (Conservative, Congleton)

It is important to be practical about this matter. There will, to an extent, be different roles.

It may not always be appropriate for somebody to act in both roles for the same individual, although it may be appropriate at other times. Under the Mental Health Bill, the advocate's role is to express the wishes and feelings of P when they are being detained under the Mental Heath Act 1983. There may be a difficulty if the same person plays both roles; we would have to explore that. However, the general position on advocacy does not undermine the services that are currently provided. I believe that professionals and people who are advocates at the moment would be able to undertake the different roles—although not necessarily always for the same person, because there might be difficulties within that framework.

Tim Boswell (Conservative, Daventry)

May I raise again the issue of unbefriended people? If a person's carer is a close friend or a sibling, that carer may feel that they do not have the capability to make an adequate assessment of the situation on P's behalf. However, it might be possible for them to approach the local authority or the NHS body and say, ''Would you please arrange for this independent consultation?'' At the moment, there is not even provision for that.

Ann Winterton (Conservative, Congleton)

We need to consider that in discussions on clause 39, when we will explore whether it would be appropriate for such a thing to happen in other circumstances. We have talked about family disputes, which the hon. Member for Tiverton and Honiton has raised previously. We need to consider circumstances in which a person really does not feel able. We would want to consult on that.

Angela Browning (Conservative, Tiverton and Honiton)

Has the Minister reflected on the time scale involved in enabling the independent consultee to make adequate investigations of options? For example, he might have to look at several residential homes, which could be time consuming. How will that fit in, particularly if a patient is discharged from hospital, with current legislation that imposes a financial penalty on the local authority if the person is not discharged within a certain time frame? How will such a proposal be adequate when other legislation impacts on discharges from hospital?

Ann Winterton (Conservative, Congleton)

I want the independent consultee to be involved as quickly as possible—for example, if there were any likelihood of a change of accommodation. The hon. Lady refers to the circumstances of discharge from hospital. There have been vast improvements there and this is almost practice now in many hospitals, which must be spread further. The way in which local authorities and hospital trusts are working together is extremely impressive. When people are admitted to hospital, a quick assessment is made of how feasible it is to discharge them quickly. There is that incentive and we want the independent consultee to be brought in as soon as possible.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

To finish that point, can the Minister confirm that the Department will consider issuing further guidance to NHS bodies and local authorities on precisely the point at which the clock starts, for the purposes of the delayed discharge legislation and liability to pay fines?

Ann Winterton (Conservative, Congleton)

I am not sure that further guidance will be issued on that matter, but I shall write to the hon. Gentleman about it. The processes that have been set in place will be effective, but we want the independent consultee to be brought in as quickly as possible.

Several other issues have been raised, such as who will be responsible for funding the independent consultee. The single assessment process will ensure that a joint assessment is made of the needs of people in continuing care. We will want all NHS and social care providers to work together when providing continuing care and to agree jointly eligibility criteria in an assessment of need.

These measures deal with circumstances in which accommodation is provided by the NHS or social services. If a village community is providing personal care as defined under the Care Standards Act 2000, it will be regarded as a care home. If people are unbefriended or placed there after an assessment under section 47 of the Health and Social Care Act 2001, they will have an independent consultee. As I outlined in my response to the hon. Member for Tiverton and Honiton, consulting friends within that scenario is something that the independent consultee will want to take into account when building up a picture of what is in the person's best interests. He might learn more about the feelings of that person and the circumstances in which the person is living.

Tim Boswell (Conservative, Daventry)

It is helpful to have a dialogue such as this. The Bill is about persons who might have fluctuating capacity and circumstances will change from time to time. An independent consultee could be called in to make a set of recommendations for a particular situation which could then be accepted or rejected. Would it be open to that consultee to set conditions such as, ''If the circumstances change, this should be revisited.''? If he could do that, would the appropriate authority be obliged to have regard to any changing conditions and to make the appropriate alterations, or, if necessary, to reconsult an independent consultee? In other words, will consultation be not just a one-off, but part of a continuous process as conditions change?

Ann Winterton (Conservative, Congleton)

I have said that we want to consider annual reviews; perhaps something could be built into that. Obviously, we will have to consult on that.

Some Members asked whom we have consulted about the new service. We have consulted a number of advocacy groups, but it would be inappropriate to go much further this before Parliament decides whether it wants to proceed with the service that we are offering. I strongly believe that the independent consultee service will be a new and innovative service for a very special group of people—the unbefriended and vulnerable, who currently do not have anybody who can help them in these circumstances. We will consult further about whether the group of people to whom service applies can be extended and whether other decisions should fall within its reach. The service will be statutory, and I believe that it will build on the very best of advocacy services. However, we cannot accept

the new clauses because they extend beyond the remit of the Bill. We want to develop the service and, within that process, to allow that there may well be room for the kind of extensions available under clause 39.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Will the Minister say a bit more about the Government's thinking on how the organisations of independent consultees will be set up and funded, who will be responsible for their pay and rations, and how they will be kept at arm's length from the bodies that have a duty to use them? It would be useful to get clarity on those matters. More specifically, I would like the Minister to say how the funding responsibility might shift from the NHS to social services if a series of assessments is being made, or how that issue might be dealt with.

Ann Winterton (Conservative, Congleton)

I addressed some of those issues when I dealt with the single assessment process; I said that there is already joint working. I cannot go into the minutiae of how the service will operate because that is what we are consulting on—

Mr. Boswell rose—

Ann Winterton (Conservative, Congleton)

I will come on to the hon. Gentleman's point.

As I have said, if we look at how advocacy services currently operate, we see that they can be employed by social services and retain their independence. I do not think that there will be an enormous problem with the independence of groups that receive funding from social services. Often, the people working in these services are professional people. The problem is not insurmountable, as the hon. Member for Sutton and Cheam is implying. These services are already operating, and we simply want to build on current best practice.

Tim Boswell (Conservative, Daventry)

I am genuinely trying to help the Minister, because I know that she is trying to help the Committee. Will she reflect on the possibility of writing to the members of the Committee—I make no self-important boasts about our commitment to the issue, but I think that we are all interested—in order to flesh out some of the points raised, whether explicitly or by implication, about independent resourcing, status and so forth? Perhaps she could use us as quasi-consultees as the concept develops. That would be immensely helpful and much appreciated.

Ann Winterton (Conservative, Congleton)

I am perfectly happy to write about the £6.5 million that has been set aside and about the consultation process, but let me say strongly to the hon. Member for Sutton and Cheam that the route that he is taking almost precludes many of the organisations that he mentions from benefiting from what I think will be an improved service. I certainly do not want to rule out the many existing advocacy services that work closely with social services and others building on their work and participating in the new service. I hope that is not what he is suggesting.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

That is incredibly helpful. I am not taking any route; I am attempting to ascertain the Government's route. It would be useful if, in her letter, the Minister gave at least a sense of the parameters of the consultation. It is rare for the Government to base consultation on a blank piece of paper; they normally have a fairly clear idea of the parameters within which

they want to work, and it would be useful to know what they are.

Ann Winterton (Conservative, Congleton)

I am happy to share some of that information with the Committee. Having said that, we feel unable to accept the new clauses, but I hope that I have given the Committee assurance that the service will be new and innovative; it will build on the very best of advocacy, and will certainly not undermine it.

Question put and agreed to.

Clause 36, as amended, ordered to stand part of the Bill.

Clause 37 - Duty of local authority to seek advice before providing accommodation

Ann Winterton (Conservative, Congleton)

I beg to move amendment No. 231, in clause 37, page 21, line 14, leave out from 'with' to end of line 14 and insert '—

(a) section 21 or 29 of the National Assistance Act 1948 (c.29), or

(b) section 117 of the Mental Health Act,

as the'.

The amendment is designed merely to extend the duty of a local authority to seek the advice of an independent consultee before providing accommodation for two important groups of people. We have listened carefully to what interested groups have had to say about the independent consultee and the need to widen the provisions, hence the amendment.

We want the safeguard to apply to people moving into hostels, and to people providing accommodation in relation to those discharged from detention under the Mental Health Act. Clause 37 currently applies to residential accommodation as defined in section 31 of the National Assistance Act 1948, which covers a wide range of accommodation that a local authority may assess as being appropriate to meet the care needs of people who lack mental capacity. That accommodation consists of: care homes, including those in which nursing is provided; ordinary and sheltered housing; housing association or other registered housing; and private sector housing provided by a local authority. However, it does not include hostel accommodation. The amendment will ensure that people who lack capacity benefit from the support of an independent consultee if they move into hostel accommodation, just as they would in the other types of accommodation that I mentioned.

Secondly, when people are discharged from detention, they are assessed for aftercare services, which may result in a proposed move to accommodation provided under section 117 of the Mental Health Act. That is the same sort of accommodation as that mentioned in the National Assistance Act 1948, and we want the independent consultee to be involved in such decisions. Having clarified that for the Committee, I hope that hon. Members feel able to accept the amendment.

Amendment agreed to.

Amendments made: No. 232, in clause 37, page 21, line 16, at end insert—

'( ) This section does not apply if P is accommodated as a result of an obligation imposed on him under the Mental Health Act.'.

No. 233, in clause 37, page 21, line 18, after 'interests', insert

'and, in particular, as to the matters mentioned in section 4(5)'.

No. 234, in clause 37, page 21, line 21, at end insert—

'( ) If the local authority—

(a) did not seek advice from an independent consultee before making the arrangements because they were satisfied that subsection (3)(a) or (b) applied, but

(b) subsequently have reason to believe that the accommodation is likely to be provided for a continuous period that will end 8 weeks or more after the day on which accommodation was first provided in accordance with the arrangements,

they must seek advice from an independent consultee.'.—[Ms Rosie Winterton.]

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 51, in clause 37, page 21, line 24, at end add

'and if they decline the advice must give reasons in writing for doing so'.

I sense that the Committee wants to make progress, not least to ensure that remaining amendments and other aspects of the Bill are debated before the guillotine falls. I do not intend to speak at length about the amendment—in a sense it speaks for itself.

The amendment relates to another concern we have, which has been made explicit this morning and need not be returned to, that local authorities might not always act with clean hands. They might decide on a placement that suits their budget or administrative arrangements but is not in the best interests of P, even though it should be. My hon. Friends, particularly the hon. Member for Tiverton and Honiton, have rightly drawn the Committee's attention to the fact that even the existing framework of statutory duties is not always discharged as it should be. The amendment is designed to smoke out the local authority's reasoning and—consistent with other amendments I have tabled on this subject—to provide a proper audit trail for its decision. It would prevent a situation in which a local authority goes through the motions of appointing an independent consultee having already shut its mind to the possibility of taking any notice, then says that it is grateful for the advice but is going to do precisely the opposite. The amendment would at least oblige the authority to state why it did not accept the advice of the independent consultee, who could well, as the Minister just reminded us, be a professional person and who would certainly be a specialist. The reason could be that it does not have the money, or it genuinely thinks that X will be better than Y. That would be a healthy discipline on authorities.

Students of higher criticism will note that I have not tagged a similar duty on to clause 36 in respect of NHS bodies. As I spent a somewhat fevered August, as the rain teemed down, drafting my amendments, I am not entirely clear about why I did not. If I am honest, it was probably through inadvertence. If I may venture a possible defence, it is fair to say that NHS decisions could properly be clinical decisions in a way that local

authority decisions could not be. Therefore, it might be difficult to trespass on those matters, because there would be an argument about whether they trumped the lay advice given by the independent consultee. Also, there are formal procedures—although I have reservations about them—in the NHS for patient representation and a complaints procedure.

Ann Winterton (Conservative, Congleton)

Does my hon. Friend agree that not only would the amendment make the social services department focus on the reasons for turning down advice from the independent consultee, but by ensuring that he had those reasons in writing, it would give comfort to the independent consultee, because he could show to anyone interested that he had done his job but that his advice had been rejected by the authorities?

Tim Boswell (Conservative, Daventry)

I think so. I am not too worried about the legal obligation on the independent consultee to do a professional job, although we discussed that during an earlier amendment of mine about malfeasance by the independent consultee. However, the amendment would provide an audit trail that should be mutually beneficial for the parties involved.

That brings me to my final point. Given the principles of the Bill, anybody involved in the care of P or giving professional advice at any time may be under the hammer or under the threat of proceedings in the Court of Protection. Nobody could walk away lightly. The amendment floats the idea of establishing a more transparent decision-making process. It is intended to confront the issues involved and, if necessary, to ensure that there is clear understanding of why the advice that the Minister is anxious should be tendered is not being taken.

Ann Winterton (Conservative, Congleton)

I understand the sentiment and intention behind the amendment and I assure the Committee that the Government's intention is the same. It is only reasonable that the independent consultee be made aware of the final decision and that he be able to challenge the decision maker if that is appropriate. However, the amendment is unnecessary because, as we do now, we will expect social services to keep proper records on how the independent consultee's advice has been taken into account and, if relevant, the reasons for disagreeing with or ignoring it. That is a matter of good practice and guidance and is already covered in the code of practice, on page 123 at paragraph 11.37. We want to ensure that any decision to go against the independent consultee's advice is challengeable. However, that is already the case for decisions taken by a council, so no special arrangements need apply. There is legally binding guidance on the single assessment process for older people which covers the instances that we are discussing.

In certain situations, it might not be appropriate to give formal reasons in writing. For example, a decision maker might want to advise the independent consultee of the decision personally, or circumstances might change rapidly and the advice might be reviewed. We must remember that such circumstances might arise. That said, and although I am asking the hon.

Gentleman to withdraw the amendment, it has been helpful to reiterate to Committee members that we expect any such decisions to be put in writing.

Tim Boswell (Conservative, Daventry)

In the light of the Minister's assurances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 37, as amended, ordered to stand part of the Bill.

Clause 38 - Exceptions

Joan Humble (Labour, Blackpool North and Fleetwood)

I beg to move amendment No. 198, in clause 38, page 21, line 26, leave out beginning to end of line 32 and insert—

'The duty to identify and consult an independent advocate in relation to serious treatment or major changes in accommodation and support arrangements for P shall be considered discharged by the relevant authority where that authority has consulted and accepted the representations of either—

(a) a donee of a relevant lasting power of attorney created by P, or

(b) a deputy appointed for relevant purposes by the court for P, or

(c) a donee of a relevant enduring power of attorney (within the meaning of Schedule 4) created by P, or

(d) an independent advocate already recognised by the relevant authority as representing the interests of P'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss new clause 26—Exceptions—

'(1) The duty to identify and consult an independent advocate in relation to serious treatment or major changes in accommodation and support arrangements for P shall be considered discharged by the relevant authority where that authority has consulted and accepted the representations of either—

(a) a donee of a relevant lasting power of attorney created by P, or

(b) a deputy appointed for relevant purposes by the court for P, or

(c) a donee of a relevant enduring power of attorney (within the meaning of Schedule 4) created by P, or

(d) an independent advocate already recognised by the relevant authority as representing the interests of P.

(2) Subsection (1) does not apply if—

(a) an agreement between person P and D cannot be reached about a decision or action and where D is employed by an NHS body or local authority social services or D is contracted by an NHS body or local authority social services in respect of the provision of care and treatment for P, or

(b) there is a difference in view between person P and any person who is consulted under section 4(6) and the decision or action is the responsibility of an NHS or local authority social services or organisation contracted by an NHS body or local authority social services.'.

Joan Humble (Labour, Blackpool North and Fleetwood)

I am not entirely sure that I am able to move the amendment, but I seek the Committee's indulgence in speaking to new clause 26, which is linked to amendment No. 198.

James Cran (Conservative, Beverley and Holderness)

For the avoidance of doubt, let me say that the hon. Lady can move the amendment.

Joan Humble (Labour, Blackpool North and Fleetwood)

I would have expected the hon. Member for Sutton and Cheam to do so, because he is a co-signatory to the amendment.

James Cran (Conservative, Beverley and Holderness)

Order. We do not want to spend too much time worrying about that. Let us get on.

Joan Humble (Labour, Blackpool North and Fleetwood)

New clause 26, which was tabled by my right hon. Friend the Member for Coatbridge and Chryston, would make it clear that if P already had a donee, deputy or independent advocate, a public authority would not be under a duty to provide an additional independent advocate in relation to decisions about serious medical treatment or changes in accommodation. The new clause would be especially relevant if P was having problems or difficulties with family members and there might be a dispute. It would place a duty on the appropriate public authority to provide an independent advocate if agreement cannot be reached between P and a decision maker who was employed by the public authority, or if the public authority becomes aware of a dispute between carers and P involving the provision of local authority services.

The amendment reflects the fact that P can be equally vulnerable when there is a dispute among the people providing him with care, treatment and support. Clearly, each group caring for P has legitimate needs, pressures and concerns of their own: as was said earlier, social services departments may face resource pressures, and relatives have their own concerns and needs. However, the Bill is about P. P is the most important person. Again, I urge my hon. Friend the Minister to accept the importance of independent advocacy to resolving disputes. The Bill is a golden opportunity to do that, and new clause 26 strengthens the centrality of P and P's needs.

Ann Winterton (Conservative, Congleton)

I shall be very brief. Where there might be disputes among family members, we have said that we will look at the independent consultee service, and consult on whether it is appropriate to extend it into some of the areas that my hon. Friend has described. However, I believe that the amendment is unnecessary, and despite my hon. Friend's eloquent speech, I hope that she will consider withdrawing it.

Joan Humble (Labour, Blackpool North and Fleetwood)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 38 ordered to stand part of the Bill.

Clause 39 - Power to adjust role of independent consultee service

Tim Boswell (Conservative, Daventry)

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

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

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

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

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

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

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

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

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

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

Ann Winterton (Conservative, Congleton)

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

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

Paul Burstow (Liberal Democrat, Sutton and Cheam)

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

Ann Winterton (Conservative, Congleton)

It's turning into a book.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

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

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

Ann Winterton (Conservative, Congleton)

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

Question put and agreed to.

Clause 39 ordered to stand part of the Bill.

Clause 40 - Codes of practice

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 53, in

clause 40, page 22, line 4, after 'must,' insert

'after consulting with such persons professional and lay as seem to him to have an interest,'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss the following amendments: No. 146, in

clause 40, page 22, line 4, after 'practice', insert

'in suitable formats for the information and guidance of P and of any independent advocates assisting P and'.

No. 54, in

clause 40, page 22, line 12, at end insert—

'(ee) with respect to the information to be compiled and retained by persons specified in this section in connexion with their duties under this Act, and'.

Tim Boswell (Conservative, Daventry)

As we move to this part of the Bill, I should say that in no sense do I regard the codes of practice as miscellaneous or supplementary: it is essential to the delivery of the Bill and the change in culture that we all seek that they should be taken seriously. It is reassuring that Ministers have referred to them in their deliberations. They may not be as legally binding as the Bill itself, but they are an important part of the delivery process. I have no problem with them; I simply emphasise their importance.

I do, however, have one little problem: I notice that Ministers have referred sometimes to codes of practice and at other times to a code of practice. We have a draft code of practice before us. There should be horses for courses. We probably need a collective document, which would be ''the code'', but that would not be sufficient unless it contained sub-codes targeted at particular situations, or at classes of people who may have occasion to refer to the code. In correspondence that I have seen, there has been some suggestion that the code is for professionals such as local authority decision makers and NHS professionals, and that if it goes to Auntie Flo, who happens to be a carer or the donee of a lasting power of attorney, she will not have the firepower or stamina

to wade through it all, and may not be used to the language in it.

The use of multiple formats—a possibility touched on in an amendment that I did not table, but the spirit of which I find congenial—is part of the issue. If the Minister's legislation is to succeed, we need to ensure that it is appropriate for people of all levels. The code should be in text, but there should be other ways of delivering it—for example, through training programmes. When I read the Public Guardianship Office report, I was interested to see that there have been a number of open days or training days, on which people could come and have part of their work explained to them. That is the beginning of some positive good practice—but I am conscious that we are discussing a group of amendments, and I do not want to go on at length about this subject, as we will return to it.

It would not be appropriate in Committee to rehearse the role or otherwise of the Lord Chancellor—a great person in the land, and a role that I hope will continue as an office, if not a person—nor to be derogatory about the likelihood that he would take advice from other people. Of course he would, and the amendment merely reinforces the point that—[Interruption.]

Sitting suspended.

On resuming—

Tim Boswell (Conservative, Daventry)

There have been few anecdotes in the Committee so far, as our debates have been too serious, so I shall share my memory of the last occasion when there was an interruption like that. I went to Berlin for the day to speak to political scientists, and at the very beginning of my speech, a power hammer—not, as in this case, an electric drill—started up. I had two options—to walk out in a huff and be very pompous about it, or to say, as I did, ''Well, I knew Alastair Campbell was good, but I didn't realise he was as well targeted as that.''

As I was saying, we are not attacking the Lord Chancellor or suggesting that he would not want to consult, although some past Lord Chancellors—I will not be specific—have been reluctant to do so. It is terribly important that there should be consensual involvement, and that the code is not seen as something that is produced pro forma, or is only for professionals. The code and the supporting information and training should be accessible to all persons who may need to use it.

Amendment No. 54 would add a specific tiret to the provisions of the code, or codes, in relation to information, and I shall emphasise two elements of it: first—this relates to a point that I have already made—is the importance for everyone involved of having a proper audit trail of the decisions that have been taken, which would involve keeping good records. There have been cases in which local authority records have been, or have become,

defective, which is regrettable. It is important that we know what we are doing.

Secondly, and more positively, this is not simply a matter of being able to prove that people have failed ex post, but of encouraging them in the good practice of keeping relevant information and understanding what is relevant to the continuous assessment of mental capacity and of the person's best interests. They should be encouraged to build up information and have it available, adding any relevant matters—for example, the opinions of carers and neighbours and so on—and to keep it on file.

I am conscious that it is always difficult to manage information if it gets overextended and out of hand; it is also possible that some information may be informal, and may consist of gossip, or may include elements of confidentiality that are more sensitive. But the principle that I set out in the amendment is that information is cardinal to the success of the Bill, as is the communication of codes and good practice. I hope that the two will come together and that people fully understand whatever is required under the code, including their important obligation to access information, to record it where appropriate, and to be able to reproduce it in the event of any subsequent dispute about decisions that they may have taken.

Joan Humble (Labour, Blackpool North and Fleetwood)

I congratulate the Government on the draft code of practice. The Joint Committee was clear that it was vital that codes of practice, in so far as they could be finalised, should be produced alongside the legislation. Secondly, it is important to endorse what the hon. Member for Daventry said about the need for accessible and appropriate codes for professional and non-professional carers.

P should also have access to information about the codes of practice. I urge my hon. Friend to produce information for carers in an easily accessible leaflet form, which could be circulated at day centres and the like. Information should also be produced in a language and using methods accessible to P, so that he or she knows what the issues are as well.

Paul Holmes (Liberal Democrat, Chesterfield)

I shall speak to amendment No. 146. Clause 40 deals with the production of codes of practice to guide on the one hand those who might assess whether someone has capacity, and on the other those who might exercise powers on behalf of people who have been assessed as lacking capacity.

Clause 40 (1) lists all those to whom the code might apply—for example, donees of lasting powers of attorney, deputies appointed by the court, people providing care and treatment and other examples. There are two glaring omissions from that list. First, it omits independent advocates—or consultees, to use the Government's preferred terminology. We have debated them at great length, in relation to clause 34, at other times in the Committee and on Second Reading. Given the amount of attention that we have paid to the role of independent advocates or consultees, it seems strange that they are left out of the list in subsection (1). It might be argued that it covers the matter with a catch-all phrase. However, it

seems to me that it would be better to specify a reference to the independent consultee or advocate.

The subsection's second omission is of the individual at the centre of the Bill, P, whose capacity will be assessed and who, if they are assessed as lacking capacity, will have key decisions about their life and treatment passed to other people to make on their behalf. It seems entirely logical and necessary to the Bill to require that the codes of practice should be produced in suitable formats for the information and guidance of P. Both previous speakers have referred to that.

The delay in providing documents such as ''Valuing People'', and later ones, in accessible formats has rightly stirred controversy among people with learning disabilities. As has been established in recent years, the move towards using such formats more often and extensively has shown that P's capacity can often be enhanced. Accessible formats and appropriate support can, to a degree, overcome what would have been automatically and rather paternalistically judged as a lack of capacity.

Amendment No. 146 would not only specify the use of suitable formats in the Bill—the Minister might argue that it is always assumed now that suitable formats will be used—it would reinforce the centrality of the Bill's whole purpose: to recognise, to the maximum possible extent, capacity on the part of P, before consideration even turns to lack of capacity.

David Lammy (Labour, Tottenham)

I am back, taking over from the Minister of State, Department of Health, my hon. Friend the Member for Doncaster, Central (Ms Winterton). I cannot claim to have the eloquence and charm that she brings to the Committee, but all I can do is try my best.

We have mentioned the code of practice many times during Committee sittings, and I am grateful for what hon. Members have said about the fact that we published the draft code—on 9 September, I believe. That document has added to our debates. Amendment No. 53 would insert a provision in clause 40 requiring the Lord Chancellor to consult lay and professional people before preparing and issuing a code of practice. I can reassure the hon. Member for Daventry by referring him to clause 41, which already covers this important point by saying:

''Before preparing or revising a code, the Lord Chancellor must consult''

anyone he thinks appropriate. I assure the hon. Gentleman that the appropriate people will include lay and professional people. I hope that he is satisfied with that.

Amendment No. 54 deals with clause 40, which says that the code must provide guidance on advance decisions and any matters that the Lord Chancellor thinks are appropriate. We discussed that subject when we talked about advance decisions, and this amendment would add a requirement to produce guidance on compliance and retention of information in connection with their duties under the Bill by people specified in clause 40. I reassure the hon. Gentleman

that we have not overlooked the importance of making it clear when records should be kept, and the draft code contains various references to that.

The hon. Gentleman has returned to this matter on a few occasions, and I remind him gently that paragraph 5.14 deals with an assessment of ''capacity and best interests'', paragraph 6.29 explains the duty of a financial attorney to keep accounts, paragraph 7.50 talks about the duty of a financial deputy to keep accounts, and paragraph 13.20 is about the retention or deletion of information obtained about someone who lacks capacity. As we continue to develop the code, further paragraphs may deal with the important business of record keeping and other things. I agree with the hon. Gentleman that this is an important area, on which more guidance might be helpful.

Paid carers and health and social care professionals could usefully be reminded of the need to keep records when important decisions are made on someone else's behalf, not least because they can be challenged about a decision if it comes to court—and if that happens, they might find it helpful to have kept a record about the decision-making process. I undertake, therefore, to give serious consideration, once the draft code is formally consulted on, to whether it would be useful to have a separate section in the code on collection and retention of information, or whether there is a need to add to the existing references to this matter. I am grateful to the hon. Gentleman for tabling the amendment, but given what I have said, I hope that he will withdraw it.

Amendment No. 146 would require the Lord Chancellor to produce a code of practice in a suitable format for people lacking capacity and for independent advocates. Of course, I appreciate that the hon. Member for Chesterfield wishes to remind us that people who lack capacity should not be overlooked in the code. It is also right that they should know what sort of behaviour they can expect from those who care from them; my hon. Friend the Member for Blackpool, North and Fleetwood mentioned the role of the independent consultee in that regard.

The hon. Member for Chesterfield will know that my Department is already quite sensitive to the issue, and that is why we published an easy-to-read version of the guide to the Mental Capacity Bill. It condenses the key aspects of the Bill into 21 pages. On the Department for Constitutional Affairs website, he will see a whole range of publications aimed specifically at those with learning disabilities. Tapes and CD-ROMs are also available. We want to continue that good practice and do exactly what my hon. Friend the Member for Blackpool, North and Fleetwood said, but we have not done that yet with the draft code, for the very reason that it is a draft. It is a work in progress, and it would not be right to go down that road at this stage.

As for existing advocacy groups, it is difficult to take the issue forward as the hon. Member for Chesterfield suggests, partly because there are so many different groups. He is aware that there are many types of advocate, such as citizen, peer, and crisis. We have talked about that; there are lots of

different groups, including self-advocacy groups. It would be difficult to speak to all of them in the code, and even if we could, I suspect that some would not want to listen, because they prize their independence so highly.

I also remind the hon. Gentleman that the only statutory definition of independent advocacy is in the Health and Social Care Act 2001, but that relates to a particular form of advocacy—the advocacy in the independent complaints advocacy services, of which I am particularly fond, as I set them up when I was a Minister in the Department of Health. Those issues cause us some difficulty, and I hope that, on the basis of what I have said, the hon. Member for Daventry will withdraw his amendment.

Tim Boswell (Conservative, Daventry)

I am grateful to the Minister for his response. It was, on the whole, encouraging and consistent with the Department's initiative in publishing the code, which has been valuable to the Committee. There is no doubt about his good intentions.

The only slight warning that I offer the Minister is that there are two layers of potential misinterpretation. The first is the transition from lawyerly language to layperson's language. That might, for example, might centre around the use of the word ''reasonable'', which may mean something different to the Minister, as a

lawyer, from what it means to Committee members such as I, who are not lawyers.

Secondly, there is the transition to a version for people with learning difficulties who require further abridgement. From the occasions on which I have attempted to distil information such as election material, I know how difficult it is to do, but also how important and useful it sometimes is in clarifying concepts. I encourage the Minister to carry on with that, and to make sure that what is proposed is accessible, both in the language used and in the convenience of the format in which the material is assimilated. We encourage him to do that, and will welcome it when he does. In light of the assurances that he has given, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 195, in

clause 40, page 22, line 14, at end insert—

'(g) for the guidance for people acting as independent advocates for the purposes of sections 35, 36 and 37.'.—[Mrs. Humble.]

Question, That the amendment be made, put and negatived.

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 40 - Codes of practice

David Lammy (Labour, Tottenham)

With regard to amendment No. 194, I should have said that I want to include independent consultees within the context of clause 40(1). I was unable to say that earlier, but I hope that the hon. Member for Daventry (Mr. Boswell) is pleased with my response.

Question put and agreed to.

Clause 40 ordered to stand part of the Bill.

Clause 41 - Codes of practice: procedure

Paul Holmes (Liberal Democrat, Chesterfield)

I beg to move amendment No. 147, in

clause 41, page 22, line 37, after 'preparing,', insert 'publish'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss amendment No. 58, in

clause 41, page 23, line 5, at end insert

'including the use of abridged or simplified versions and alternative formats, and shall take such steps as he may deem appropriate to ensure in the future that donees, deputies and others involved with the operation of this Act are familiar with its provisions'.

Paul Holmes (Liberal Democrat, Chesterfield)

I must confess to the Committee that the more I look at the amendment the more I realise that it is not well drafted, because if the word ''publish'' were simply inserted in the clause, the subsection would not read correctly. I therefore ask the Minister and the Committee to treat it as a probing amendment and respond to it in that spirit.

As we heard this morning, the pre-legislative scrutiny Committee recommended that the Bill should not be introduced in Parliament without a draft code of practice, so it is much to the Government's credit that they responded to that request and produced a draft code of practice at an early stage to inform discussion on the Bill. It is important that that happened, because when enacted, the Bill will rely so much for its day-to-day working and implementation on the details in the code of practice. The fact that, unusually, the Government took such a step is welcome.

In the preface to the draft code of practice, Lord Filkin emphasised that

''consultation will be vital in ensuring that the ultimate code is helpful to stakeholders and others who will be responsible for implementing future legislation.''

Clause 41(2) requires that the final code or any revision of it be

''laid before both Houses of Parliament'',

and a 40-day period will be allowed for either House to say whether it intends to accept or refuse the draft code, so the argument that the code or a future revised code would have to go before the Houses of Parliament for consideration is therefore covered.

Amendment No. 147 is directed more at the early consultation stage before a future code or revised code is brought before Parliament. It would ensure that the widest possible consultation takes place before the final stage when the code is laid before Parliament. Clause 41(1)(a) and (b) require that before

''preparing or revising a code, the Lord Chancellor must consult—

(a) the National Assembly for Wales, and

(b) such other persons as he considers appropriate.''

The amendment would require the publication of the consultation document at the early stage, not simply the publication of the final code to go before Parliament.

The Under-Secretary of State for Constitutional Affairs, the hon. Member for Tottenham (Mr. Lammy), may reassure me that there is no problem. However, there is the danger that if the key consultation took place with a limited number of people whom the Lord Chancellor considered it appropriate to consult, many disability organisations and interested parties might feel left out of the process and consider that they could not have an input until the late stage, when the final or revised code goes before Parliament.

The fear is that the early consultation about the proposed changes would be too restricted and that the wider feelings of those concerned might be excluded or overlooked. The Minister might say that the usual consultation process on behalf of the Lord Chancellor would be wide-ranging and how public the consultation would be, so that as many people as possible could take part in it. If I receive such assurances, amendment No. 147, badly worded as it is anyway, would not be necessary.

Tim Boswell (Conservative, Daventry)

I shall speak briefly to my amendment No. 58, which is grouped with amendment No. 147. I shall not dissent from the comments that have been made about the earlier amendment. We all understand the approximation of amendments, like the approximation of one or two other things that we want to do in this place.

The first part of my amendment speaks for itself, so I will not dwell on it. It is about using sensible alternative formats, and the Minister has already explicitly accepted that as a principle, and to some extent as a practice. However, I do want to speak to the rest of the amendment.

There is an aspect of public policy about which I have an abiding worry. Legislators are interested in passing legislation but they are bad at implementing it—although in one sense, it is not for us to do that. I say this with no disrespect to the current batch of Ministers or to their predecessors of different political parties, but it is much more exciting to legislate and

brings things into being than it is to carry things on. That is one reason why we have moved towards an agency system in many areas, and I realise that the public guardian will operate as an agent.

I will not go into that further, but I want to make the following point: we can all get excited about bringing issues together and debating them, passing law, considering a draft code, consulting on it and putting it in place, and then—like the hen that has laid an egg and goes round the yard clucking—we can all think we have finished the job. In fact we have not finished it, because that is when the really hard work of implementing the code and adapting to changing the entire culture, which Ministers and others have agreed is appropriate, needs to take place. That is also not something we can do on a one-off basis. Having a code is not in itself sufficient to ensure that further down the line people comply with the code and regard it as their natural way of looking at things.

The second half of the amendment is simply intended to ensure that when the Lord Chancellor publishes the codes, mechanisms are put in place to draw them constantly to the attention of people as their family circumstances change—for example, a lasting power of attorney may kick in for the first time and they need to operate it. That is not a difficult thing to ask for, but it is quite a difficult thing for Ministers to achieve. They need to resource it; there are some helpful provisions in respect of the financial effects referred to in the explanatory notes. They also need to ensure that it is kept up to date, and that it is brought to the attention of those who need to know about it. We cannot address that in Committee, but it is an important part of this process.

My amendment is designed to flag that up. Even if Ministers are not minded to accept the text of it, I do not imagine for a moment that they will wish to dissent from its sentiments—and if they do, we should know about it. It would be helpful if the Minister were to give us some idea of how he will meet the objectives.

David Lammy (Labour, Tottenham)

On amendment No. 147, I assure the hon. Member for Chesterfield (Paul Holmes) that by the time the code is published it will have undergone a long process of formal and informal consultation. That is important; the more collaborative and informed the process, the better the code. We all want to get the code right. That is why we have published it in draft at this stage, and that is why the Minister of State, Department of Health, my hon. Friend the Member for Doncaster, Central (Ms Winterton), and I have said that we are keen for Members to contribute to the code as things progress. I also want to make sure that the code speaks to all the different groups of people that it needs to address, and that they clearly understand it, and we can only do that if we get input from those people. This process will take many months and the draft that is finally laid before Parliament will have been informed and improved by both laymen and experts.

As the hon. Gentleman suggested, the consultation will be wide. We already have a broad consultative forum; there are almost 100 members. They include

groups such as the Making Decisions Alliance—I say nothing about that name—which have a huge range of organisations with a very wide membership. Of course we will comply with the Cabinet Office guidelines as regards consultation. On that basis, it will not be necessary to have further formal consultation just before publication. Having consulted fully, it would be perverse to publish a quite different document.

Paul Holmes (Liberal Democrat, Chesterfield)

I accept that the current draft of the code is undergoing early consultation, and will undergo further consultation, too. Subsection (1)(b) is about future revisions of the code, perhaps in 10 or 20 years. What reassurances can the Minister offer about who the

''such other persons as he considers appropriate''

might be at some unspecified point in future?

David Lammy (Labour, Tottenham)

I strongly suspect that those persons will be the groups as they are now, because they will be plugged into the code. If amendments are needed, they will be part of a process in which they inform the Government whether things have moved on. Also, the draft code will be subject to the negative resolution procedure, so there may be debate on it.

On amendment No. 58, or at least the first part of it, the Department for Constitutional Affairs is committed to producing accessible versions of publications likely to be of interest to those lacking capacity. I spoke about that this morning. I am pleased that we have put accessible documents on the DCA website. The Bill was in easy-to-read form, as I said. We have not produced the draft code in easy-to-read form, because it is a draft—and on that basis, I hope that the hon. Gentleman will withdraw his amendment.

The other aspect of amendment No. 58 is that it would ensure that the Lord Chancellor took steps to ensure that people were familiar with the code. Subsection (3) already requires the Lord Chancellor to bring the code to the attention of all those people likely to be concerned with its provisions. The hon. Gentleman's amendment would require the Lord Chancellor also to take steps to ensure that those people were familiar with its provisions.

I fully understand why the amendment was tabled, because the code will not be successful if people do not know about it, but the Office of the Public Guardian will be instrumental in bringing the code to the attention of deputies and attorneys. Mechanisms will also be in place for making sure that health and social care professionals and paid carers are aware of it. The hon. Member for Daventry has already said that the Public Guardianship Office is holding seminars and workshops, is informing people and is outward-looking. I am sure that we will have further discussion about that this afternoon.

Tim Boswell (Conservative, Daventry)

Again, the Minister is trying to answer our points. What if an attorney has a one-off problem that he wants to run past the public guardian, and is not as familiar as he might be with the codes, or does not understand them fully? I take it that in those circumstances the public guardian would be available to give advice on the problem. If, arising from that, a decision had to be taken, could the public guardian, as

it were, pre-clear that decision, so that the attorney felt confident with the situation when he had taken that advice?

David Lammy (Labour, Tottenham)

Yes to both questions. I hope that the hon. Member for Chesterfield will be further reassured to hear that we will undertake research to evaluate the success of the legislation and the code. That will include taking surveys among the general public and carers on awareness about some of the main provisions of the Bill and the code. I hope that the hon. Gentleman will withdraw his amendment.

Paul Holmes (Liberal Democrat, Chesterfield)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 55, in

clause 41, page 22, line 41, leave out 'laid by him' and insert 'approved'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss the following amendments: No. 56, in

clause 41, page 23, line 1, leave out paragraph (b).

No. 57, in

clause 41, page 23, line 6, leave out subsections (4) and (5).

No. 66, in

clause 61, page 32, line 28, after 'under', insert

'section 35, section 39, section 41 or'.

No. 68, in

clause 64, page 33, line 18, at end insert

', but may not come into force until after approval of both Houses of Parliament of a draft Code of Practice under section 40 of this Act'.

Tim Boswell (Conservative, Daventry)

The amendment would introduce an affirmative resolution procedure in respect of the code. In my view, that would be desirable. It may be for the Minister to consider whether that should be done on the code's first publication and converted to a negative resolution procedure for subsequent cases.

Several Committee members will be familiar with the special educational needs code that proceeded in parallel with the Special Educational Needs and Disability Act 2001, during the discussion of which I led for my party. In another place there was, frankly, something of a row about the draft code, and it was taken back and redrafted. I do not seek to make trouble for the code, and the way in which the Minister has been trying to answer the debate has given me some encouragement, but it would be an important parliamentary event and would merit an affirmative resolution procedure.

Amendment No. 68 would not allow the Bill to come into force until the draft code had been approved. I think that the Minister would agree and would concede that he sees the code as an integral part of the package, another part of which is the Bill. The one will not work effectively without the other. Like other Committee members, I acknowledge the Department's considerable achievement and its wise move in producing the draft code—in its first and working stage; we understand that, and make allowances for it—so that the Committee could be informed. I am sure that it will repay further study

after the Committee has concluded. It would be a very good idea for the draft code to be approved before the final implementation of the measure, not least because some of the assurances that we have sought to put into the Bill are, in the Minister's book, read into the code.

Those are all matters of judgment and decision; there is no absolute truth one way or the other. No doubt, the Minister will say persuasively that it would be possible to pray against the provisions, trigger a debate and even persuade the usual channels, in extreme cases, that we should have the debate on the Floor of the House. I understand that, but in that case the mechanism would not be loaded towards proper public consideration. It is important that we should have a good public debate at the outset about a matter that, as the Minister has conceded, affects a large number of people. The aim of such a debate would not be simply to scrutinise, let alone, necessarily, to criticise, but to inform public opinion and put the matter into a wider format than this Committee. It would also ensure that parliamentary colleagues, who will have to handle some of the casework, would begin to become familiar with what is required.

The amendments are not aggressive, but they are worth consideration.

David Lammy (Labour, Tottenham)

I remind Committee members that there was no requirement for the draft code to be subject to a negative resolution procedure in the draft Bill, nor in the Law Commission's earlier draft of it. Despite the Joint Committee's deep interest in the code, and the extensive hearings that it held on all mental capacity issues, it did not suggest that the code should be subject to the negative resolution procedure.

However, it will be necessary to go a step further. As case law develops, we may revise sections of the code regularly—perhaps several times a year. It would be very cumbersome for Parliament to have to debate each revision. The first revision of the code laid before Parliament will have been subject to extensive consultation. I have indicated the range of groups with which we are working, and that has been the tone of the entirety of the Committee's proceedings. Following Royal Assent, a fully revised draft code will be put out for formal public consultation in accordance with Government guidelines on consultations, and we will consult before each revision.

I fully expect the Bill's code to be as successful as those issued under the Disability Discrimination Act 1995, which were praised by one of the witnesses to the Joint Committee. Those codes were subject to the negative resolution procedure. We believe that that is also the right level of scrutiny for our code. I hope that the hon. Member for Daventry agrees that in providing a very early draft of the code for the benefit of the Committee, we have shown our commitment to getting it right and to continuing the consultative process throughout.

Amendment No. 66 specifically deals with subjecting the independent consultee service to the affirmative resolution procedure. My hon. Friend the Minister of State said that we would consider whether the regulation-making power in clause 39 that enables us to extend the role of the independent consultee

might need greater scrutiny, for reasons about which we have already had extensive debate. Those regulations will allow an extension of the independent consultee's function to new situations that will not have been considered by Parliament. That is different from the code, which will aim to reflect the Bill when it emerges from parliamentary scrutiny.

With regard to amendment No. 68, and its context in the commencement of the Mental Capacity Act, we do not anticipate that the Act will come into force before 2007, because it is important that all the necessary preparatory work to get the measure right is carried out. Producing the code of practice is an important part of that preparation, and I want to ensure that the code is published in good time before the Bill is implemented. I do not anticipate any difficulties in having the code ready in time. I hope, therefore, that the hon. Gentleman will withdraw the amendment.

Tim Boswell (Conservative, Daventry)

I am grateful to the Minister for his comments, although I must say that I am not wholly persuaded. However, it is getting rather late in the day and so I do not intend to force the issue at present. The argument that no one said that they wanted something is not of itself sufficient to say that it should not happen. I am also slightly worried that Ministers are beginning to develop a habit of saying, ''Let's consult everybody else, but the last people we should consult are Members of Parliament.'' By that I mean no disrespect to the stakeholders or the interested parties, to whom we are grateful for the briefing that they have provided for us, collectively and individually, and with whom the Minister is right to consult. I do not want that comment caricatured as suggesting that Members of Parliament are the only people with any wisdom in the matter—that is certainly not the case. However, I am saying that a degree of parliamentary hurdling is quite an important part of the process, although I know that it is tedious for Ministers and does sometimes hold things up, which is a consideration. I think that we as a Committee may say modestly that the fact that we have been putting the Minister over the jumps in the Standing Committee has been worth while and good for him, if I may say so, because it has not been partisan—we have all been involved.

I indicated that there are areas of judgment in these matters. There is also the possibility of disseminating the code more widely—not just to the stakeholders but to other interested parties, including interested Members of Parliament. The Minister has already referred to the codes under the Disability Discrimination Act. Wearing another hat, I received those codes and commented on them as a consultee; I was pleased to do so. Perhaps, as Members of Parliament, we do not do that often enough.

The Minister might like to consider the whole process again, but at this stage I am not going to spoil my duck by forcing the issue. However, I would not like the Minister to feel that we are entirely convinced on this or on one or two other issues: we are not. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 41 ordered to stand part of the Bill.

Clause 42 - Ill-treatment or neglect

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to move amendment No. 150, in clause 42, page 23, line 19, after 'court', insert

'or is the donee of an enduring power of attorney or is an appointee appointed by the Secretary of State for Work and Pensions'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss the following amendments:

No. 151, in clause 42, page 23, line 20, leave out 'the person concerned' and insert

'or unduly influences for his own advantage the person concerned, and—

(b) include matters in relation to the financial affairs of the person who lacks capacity that are considered to fall outside the scope of the Theft Act 1968.'.

No. 59, in clause 42, page 23, line 20, after 'person', insert

'(or the interests of the person)'.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I intend to speak to the amendments fairly briefly. The intention behind amendment No. 150 is to ensure that the scope of the clause, which brings a welcome new offence in respect of ill-treatment or neglect of a person without capacity, extends to those who are acting under an enduring power of attorney.

There is concern that someone acting solely in respect of a person's financial interests, and dealing with them, would not come under the scope of the clause as it is drafted, because it talks about someone having ''the care of'' the person. When someone has responsibility for the financial affairs of an individual who lacks capacity they undoubtedly have a significant impact on the care of the person, directly through decisions they are taking about the use of that person's resources if, for example, the person is a self-funding resident in a care home and their resources are being used because the state and social services are not involved in any way. There might not be an outside party monitoring such things.

If the individual with the enduring power of attorney chooses not to pay the personal expenses allowance to the person out of the moneys at their disposal, that is clearly neglect. Another more sinister form of neglect would be deliberately to choose the cheapest option for a care placement or the cheapest option for any self-funding care package and, as a result, leave the person receiving lower quality care, or a less attentive, or less appropriate, form of care. There is a particular category of person who is regarded as self-funding and is outside some of the assessment processes, and who, as a result, does not necessarily benefit from those services.

Amendment No. 151 would ensure that financial abuse is brought within the scope of the clause. It would give a clear signal that if, for example, relatives made decisions based on their interest in inheriting whatever was left at the end of the person's life, that would not fall outside the scope of the Bill. The Making Decisions Alliance and others made

representations to the Joint Committee and members of the Standing Committee about their concern that even if financial abuse were to be covered elsewhere in legislation—although it does not seem clearly to fall under the Theft Acts—there have been few prosecutions in such cases. Given that the Master of the Court of Protection told the Joint Committee that between 10 per cent. and 15 per cent. of EPA cases involved some form of abuse, it is important that we provide the very best legal powers under the clause.

Angela Browning (Conservative, Tiverton and Honiton)

I am grateful to the hon. Gentleman. I am minded of a case that I have been dealing with, where the Master of the Court of Protection has been unable to bring a prosecution where one is needed, because the key witness is a lady of 99 who has lost capacity. Bringing such cases to court is difficult.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

That is why I tabled amendments to probe the Government and get them to explain how we can ensure that such cases reach court, that justice is seen to be done and, if P has lost financial resources as a result of such acts, they are recompensed and the resources are recovered. The resources should not have been allowed to be frittered away by someone abusing their rights under an enduring power of attorney.

The amendment is about ensuring that, in our move to the new LPA system, we do not inadvertently leave in place a second-class system of EPAs that does not give the same safeguards. We should not say that such a clear criminal offence cannot be made retrospective, because we are talking about acts that might occur in future with EPAs that are currently in place. It is not about retrospection, but about making provision for something that an EPA donor might do in future.

Tim Boswell (Conservative, Daventry)

The Committee will have noticed that my amendment, which is grouped with the hon. Gentleman's amendment, deals with the same sort of concerns. It is right for him to draw attention to the concerns that the Master of the Court of Protection put to the Joint Committee. There is already much distress, and many things have happened that should not have done. I hope that the problem will be reduced by the Bill. The issue for the Committee—and we should pause on it for a moment under the amendments—is whether it is necessary to create a criminal offence in order to do that.

Earlier, I discussed with colleagues, including lawyers, whether we need a separate criminal offence as set out in the clause to deal with cases of neglect. If physical damage is caused by neglect, whether wilful or not—and certainly if it involves ill treatment—there should be scope for a criminal procedure. All the Minister has to explain to the Committee is why that is not covered in existing law. The situation is probably not satisfactory, so I explicitly welcome the provision before us.

With financial affairs, there is something of a distinction, because one is not directly hurting someone's body; one is hurting them in their pocket. Ultimately, as the hon. Member for Sutton and Cheam (Mr. Burstow) has perfectly reasonably said, that has implications for their care. Indeed, it might do so

immediately if, for example, someone chose a cheap option rather than a better but more expensive option to save money so that they could inherit it. That is not acceptable. However, I have reservations about whether that should be written in statute as a criminal offence, but the Minister needs to take us through it.

In support of what the hon. Member for Sutton and Cheam says—I have an open debate in my own mind on the group of amendments—there is the issue of whether it is possible to damage someone more badly in their pocket than in their body. I am not sure whether, in the second case, the ill treatment or wilful neglect would be sufficiently serious to constitute damage. We had, in a different context, such a discussion on smacking. A person could be lightly but indisputably damaged physically by wilful neglect, but they could be completely taken out financially by total financial neglect. As the hon. Gentleman reminded the Committee, that would have physical consequences.

On the whole, my feeling—and, I anticipate, the Minister's—is that we should not muck about with the criminal law on the matter. However, to satisfy me and other Committee members, the Minister needs to say what powers there are to proceed against wilfully delinquent donees of powers of attorney as regards financial misconduct.

A separate point implicit in what the hon. Member for Sutton and Cheam said troubles me slightly. To turn back to the perspective of the attorney, if someone has an enduring power of attorney, there is obviously no question at the moment, although the hon. Gentleman seeks to change this, of them being brought within the negligence provisions, because this is a civil matter—there is a power—and there are redresses of which the Minister will remind us. However, because of how the clause is drafted, it is possible to imagine that an attorney under an LPA as set up under the Bill would be vulnerable to the criminal law in exactly the same situation.

In other words, there could be an anomaly, because we would be talking about financial malpractice that might give rise to physical consequences, depending on whether the power was drawn up under one piece of legislation or the other. Given that a serious criminal offence is involved, I am not sure that I am happy with that. Perhaps the Minister will discuss it.

Again, we are at the stage where people feel that there are concerns without necessarily wanting to dig in or make a huge fuss. However, it would be helpful if the Minister clarified where we have got to with the matter.

David Lammy (Labour, Tottenham)

First, I fully understand the principles that underlie all the amendments. It is of course right that we better protect those who lack capacity and better deter—we have not talked as much about that—people who would take advantage of those who lack capacity. It is a tribute to much of what we have been saying that we have talked about that positive duty, but it is now right that we think a bit about those with ulterior motives.

Offences aimed at tackling abuse of vulnerable adults require the offender to do a positive action. The clause, however, creates a new offence of ill treatment or wilful neglect of the person lacking capacity, which I hope shows that we in government take abuse of vulnerable adults very seriously.

The question asked by the hon. Member for Daventry means that I can demonstrate the need for the offence and put that on the record. I am glad to have this opportunity, which arises from the context of many cases that have come to the attention of the House and individual Members. We want to ensure that situations such as the tragic Longcare case, in which more than 50 adults with learning difficulties were abused at two care homes in south Buckinghamshire, never occur again. The new law provides people with somewhere to go, so we can ensure that such things never happen again.

We also want to ensure that hospitals do not just recklessly fail to provide food and care for some of the most vulnerable people in our society. We have heard from Committee members who are particularly concerned about that issue. Just leaving food at the end of a person's hospital bed without ensuring that they have the ability to eat it is unacceptable. We want to ensure that people know that. We want to prevent relatives from leaving people at home without providing them with the appropriate care and food. The failure to ensure that a bedridden person is turned to prevent them from getting terrible bedsores is unacceptable.

That is why this offence is aimed at capturing those individuals who are in a position of trust, care and power over people who are then ill treated or wilfully neglected. That could be a donee of a lasting power of attorney, a deputy appointed by the court or a person who has the care of someone who lacks capacity, such as a member of staff in a hospital or care home or a family member.

Tim Boswell (Conservative, Daventry)

I am looking at a representation I received from Age Concern—a one-off to me, I think—which states:

''It is a long time since I was a social worker for people with learning difficulties, but there were times when I came across families who 'controlled' the activities of their adult child, often with the best intentions of keeping them safe, by not allowing them to have any more than the smallest amount of pocket money.''

That is interesting, because there is an interaction between the financial and care sides.

Will the Minister comment—or reflect, if he cannot comment immediately—on whether this subject not only involves physical abuse such as welts on the body or starvation, but could involve psyching someone out and influencing them in a way that is quite improper and contrary to their interests, without there necessarily being any physical manifestation of that at all?

David Lammy (Labour, Tottenham)

To that, I must say that we should see how the case law develops. This is a problematic area, because in terms of the criminal law the standard of proof will present a difficulty. The provision is particularly important because we have extended the

powers of deputies and LPAs to include health and welfare decisions. It is right that a donor or an LPA should come into its scope. The hon. Gentleman drew our attention to that.

We have also set the maximum sentence available for the offence at five years. Since the draft Bill was published, we have consulted with many organisations—the hon. Gentleman read a helpful extract from a representation by Age Concern—and we took this matter up because lots of them expressed serious concerns about it. Also, by increasing the sentence to five years we have made the offence arrestable, which means that the police can make an arrest without a warrant.

On amendment No. 150, attorneys, EPAs or benefits appointees can already be liable under the offence if they have the care of a person who lacks, or whom they reasonably believe to lack, capacity and they ill treat or wilfully neglect them. However, I recognise that not all EPAs will have that direct caring role, although they have an important power in holding money for someone who may be in care. I am minded to consider the possibility of extending the scope of the offence to include donees of an EPA. I agree with the hon. Gentleman that by extending the offence in this way we would assist with the concerns that pre-existing EPAs are open to abuse.

We have discussed the work of appointees under the Department for Work and Pensions. It is right to say that the appointee must complete a form that includes the declaration that they will spend any money received on behalf of, and in the interests of, the person named. If it is established that the appointee is not using the benefits in the person's interests, the Secretary of State can revoke the appointment. I assure hon. Members that we are actively working with the DWP and I am to meet the Under-Secretary of State for Work and Pensions, my hon. Friend the Member for Liverpool, Garston (Maria Eagle).

Again, I understand the principles behind amendment No. 151. If someone with the care of a person who lacks capacity fails to spend that person's funds on them, and as a direct result they are ill treated or wilfully neglected, the person with care may be liable under the criminal offence in the Bill. In addition to the criminal liabilities, an attorney or deputy has a number of civil duties in relation to the person who lacks capacity. We have already talked about civil liability and that fiduciary duty.

Finally, I shall deal with amendment No. 59. The offence focuses on actual ill treatment or neglect of the person who lacks capacity. It must be right that criminal liability of the scale set by this offence is incurred if there is real detriment to the person. However, as I have already stated, if the person who has the care of a person lacking capacity uses that person's funds for their own benefit and to the detriment of the other person, they may be guilty of theft. There may also be a number of civil duties for attorneys and deputies in relation to the person who lacks capacity.

I hope I have reassured hon. Members that we have put in place the right criminal safeguards for this

important area as a result of the many cases that we know about. Alongside that sits the civil context that we have discussed. People have a fiduciary duty that the court takes seriously and for which there is a lot of case law.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

That exchange has been helpful. I am particularly grateful to the Minister for his response on amendment No. 151 and the useful clarification on what the law will be if the clause is enacted. It was helpful to put that clearly on the record. Amendment No. 150 may be the second of my amendments that may be taken away to emerge in another form at another stage. I am grateful to him for taking on board that concern and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 42 ordered to stand part of the Bill.

Clause 43 - The Court of Protection

Clause 44 - The judges of the Court of Protection

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 60, in clause 44, page 24, line 16, at end insert

'and

(c) ensure that at any time at least one of the judges nominated to the Court shall be experienced in matters connected with learning difficulties, one of the judges shall be experienced in matters connected with mental illness, and one of the judges shall be experienced in matters connected with progressive dementia.'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss amendment No. 61, in clause 44, page 24, line 20, at end add

'and in particular he shall report to the Lord Chancellor annually on the operation of this Act'.

Tim Boswell (Conservative, Daventry)

I tremble in the presence, metaphorically, of the Lord Chancellor at the thought of trespassing on his patch or, indeed, that of the president of the Judicial Appointments Board, who clearly would take an interest in these matters. We should really debate elsewhere the appointment of judges. I hope that the amendments are, as some have been, simply a statement of obvious good practice, but I hope also that when drawing up his panel for the Court of Protection the Lord Chancellor will have regard to the three requirements outlined in amendment No. 60. They might be found in the experience of one judge—it would be perfect if they were, or if such experience were available to all judges in the court. Learning difficulties, mental illness and progressive dementia are by no means a wholly inclusive list of the conditions that might give rise to mental incapacity, but they are three obvious major components of it. I hope that judges' experience or

their collective wisdom will be allowed to bear on these matters and that a suitable judge will be empanelled to hear such cases.

Amendment No. 61 deals with an issue that tends to arise, for example, in relation to tribunal work, which I appreciate is more diffuse and the number of cases is much greater than in the Minister's estimate for the Court of Protection. There should be an annual report to the Lord Chancellor on how the legislation is operating. I have deliberately left the amendment somewhat vague, because I am not absolutely sure what such a report should contain. It might be appropriate for the president or Master of the Court of Protection to decide that. I am simply anxious to provide a mechanism or a formal gateway for reports to be made to the Lord Chancellor about any concerns.

A report might consider whether there was a much greater work load for the court than had been expected and, by inference, whether that distorted whether decisions should be taken at court level or at deputy level on behalf of the court. It might consider whether there was systemic malpractice in the use of LPAs, or it might consider particular provisions—for example, those on advance decisions or the independent consultee, which have attracted a lot of attention in Committee—if they went wrong if there was continuing financial malfeasance. Those are the sort of matters that I have in mind.

If the Act were not working out as intended, even if we had the best of intentions when we passed the legislation in Committee, it would be useful for someone with senior judicial experience who was close to the action to be able to say to the Lord Chancellor, ''We're a bit worried about this—it's not working out as the Committee thought it would when, with the best of intentions, it passed the legislation. Someone needs to think about it.'' I am sure that the Minister will say that that could happen anyway and that a letter could be written, but the amendment would provide a formal opportunity for representations to be made every year.

That would certainly be a good idea in the initial stages, because until the system settles down, the culture begins to change and, as the Minister said, case law begins to build up, we shall not really know where we are going. We hope that we are going in the right direction and we might even anticipate that we will, but the amendment would provide another safeguard and filter to ensure that any in-course correction necessary could be made.

David Lammy (Labour, Tottenham)

Again, I fully understand the intention behind the proposal. It is important to ensure that the new Court of Protection has the right judges to deal with the often sensitive, complex and important cases that come before it. It is right to say that the court will deal with a wide range of cases and, accordingly, will need a wide range of judges, from district judge to High Court judge, with different types of experience and background. That includes some with a financial background and those who currently sit in our family courts. Some cases will be high profile and extremely sensitive—there have been a few during the past month—and those will be dealt with by the High

Court judges who currently deal with them and who have vast experience to bring to bear in deciding about them. Other cases will be more mundane, although extremely important for those involved. The present Court of Protection deals with financial cases, some of which are fairly straightforward and others more complex.

Judges will be nominated to work at the new court on the basis of their skills, experience and expertise in dealing with people with mental capacity issues, but those do not have to be based on experience of a particular medical condition. Because of the wide spectrum of conditions that may affect the capacity of any person to make a decision, we do not think it necessary or helpful to nominate a judge with experience of any particular condition. We could not ensure that a judge with the relevant background was available to deal with every case involving the medical condition in which they were experienced, and it would not be practicable to nominate judges on the basis of a particular experience, as to do so would prevent nomination on merit. Our tradition and the detailed way in which we ensure that someone is appropriate to become a judge means that the process is about merit and about experience that is built up both in practice and on the bench.

Tim Boswell (Conservative, Daventry)

I have no problem with the way in which the Minister is replying. Will he advise the Committee whether a judge might be able to appoint an assessor, not to judge the case, but advise him technically on some of the issues involved? How could that be effected? Would that be helpful to the judge if he did not have expertise specific to a detailed case, although he had high merit and much experience in related matters?

David Lammy (Labour, Tottenham)

There are mechanisms under the new, revised civil procedure rules, with which the hon. Gentleman many not be familiar. He will know, however, that the House debated that matter at length. We are grateful to Lord Woolf for his work on that. Under those procedures, there are mechanisms by which a judge can require expertise—assessor is not quite right word—to assist the Court in making a determination. I hope that on the basis of what I have said the hon. Gentleman is able to withdraw his amendment.

Turning to amendment No. 61 and the work of the Court, it is important to remember that the new Court of Protection will come within the scope of the Courts Act 2003 and, as such, will be included in the Lord Chancellor's report on how he has discharged his general duty in relation to the courts, which he must prepare and lay before Parliament 18 months after the commencement of section 1 of the Act, and annually thereafter. It is not necessary to prescribe in legislation the reporting mechanisms of a particular court. It might, for example, be appropriate for the Lord Chancellor or the public guardian, rather than the senior judge of the court, to provide a report on aspects of the Bill.

Tim Boswell (Conservative, Daventry)

Will the Minister at least confirm that it is not outwith the scope of any such report to include

matters that were not heard in court, for example, the operation of the deputy system, where appointments have been made by the court, but, by definition, their deliberations are not within the court? That would ensure that the system is working.

David Lammy (Labour, Tottenham)

I am grateful for that. We must allow flexibility; I do not want to prescribe the form, but as the court becomes established and works more closely with the Office of the Public Guardian, the two reports may come together. It is right to leave it to those with the necessary expertise to say how they propose to keep people up to date. On that basis, I hope that the hon. Gentleman will ask leave to withdraw the amendment.

Tim Boswell (Conservative, Daventry)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 44 ordered to stand part of the Bill.

Clause 45 - General powers and effect of orders etc.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss new clause 2—The Court of Protection, Supplementary Power—

'(1) Under the Court of Protection's power to set aside contracts or to vary their terms, application may be made to the Court to challenge the validity of a contract entered into by P, notwithstanding section 7,

(a) when a person lacks capacity to understand a contract when making it and/or their capacity to meet that agreement,

(b) where a seller overcharges or an incapacitated person undersells.

(2) For the purposes of contract law, the burden of proof should fall to the provider of services/goods to demonstrate that P understood or had capacity to understand a contract, where the issue of P's best interest is challenged.'.

Paul Holmes (Liberal Democrat, Chesterfield)

I wish to speak to new clause 2, which relates to the supplementary powers of the Court of Protection. The new clause is based on the Citizens Advice report ''Out of the picture'' which was published earlier this year. It is designed to allow consumer contracts to be challenged if they were made when a consumer with mental illness problems was ill and could not reasonably have been expected to enter into a contractual relationship on the same basis as a consumer with full mental capacity. We have already debated people's right to take what someone else might regard as the wrong decision. The Bill has the difficult task of trying to tread the tightrope between trying to resolve the tension between P's right as an individual to take his own decision, even though it might be the wrong one, and the desire to protect P's welfare interests on P's behalf.

Citizens Advice, which deals with such cases in its offices throughout the country, is concerned about someone going through a period of mental illness who is persuaded in a competitive marketplace with lots of high-pressure selling to enter into an unsuitable contract, to sell at too low a price, or to buy at too high a price. In such instances, Citizens Advice is

worried that the Bill is at serious risk of disadvantaging people with mental health problems.

The Court of Protection is a special court with a particular role in relation to vulnerable adults. New clause 2 is designed to clarify and strengthen the court's powers to intervene to protect P's interests in the specified examples of mis-selling. I understand that the Department for Constitutional Affairs has undertaken to explore with the Court of Protection how it might operate in future. I hope that the Minister will enlighten us about the progress made in that discussion. I hope, too, that he will comment on Master Lush's recommendations to the Joint Committee that the burden of proof should be shifted in cases of incapacity.

David Lammy (Labour, Tottenham)

The new clause would reverse the burden of proof in contract cases so that a contractor must show that the person had the capacity to make the contract in order to rely on it. It would also give the new Court of Protection the jurisdiction required to handle any such cases.

The issue has been raised before, and I realise that hon. Members' anxiety is shared by Citizens Advice. Of course, it is true that vulnerable people may be open to abuse in a commercial setting. All Members of Parliament have seen people in our surgeries who have been victims of sharks, and I share the hon. Gentleman's concern that vulnerable people should be protected from unscrupulous traders. That includes not just people who lack capacity, but anyone who is vulnerable—for example, people who are subjected to aggressive doorstep selling, or people who might be misled or manipulated by those seeking to make a fast buck.

The first difficulty with the new clause is that it runs against the overarching principle of the Bill: that a person should always be assumed to have capacity. That principle has been supported by the Joint Committee, Age Concern, Mencap, Scope and many others. If the burden of proof were reversed for contract cases, that could diminish the autonomy and empowerment that Committee members rightly seek to promote.

Many people would view such a provision as discrimination against them because they appear different. They want the right to buy goods and services even if others question the wisdom of their decision. There is a balance to be struck; we have talked about unwise decisions as well. Such people want to be able to contract like anyone else. Of course, an assumption of capacity opens people who may lack capacity to some risk. However, they want to be accepted as they are and to have the right to be assumed capable of knowing what they are doing.

It is right that I explain the existing mechanisms. The common law already provides protection and the Bill would not change that. A contract made by someone who lacks capacity is already voidable in common law at the option of that person, if the other party knew or had reasonable grounds for believing that they did not have capacity. One cannot contract if one lacks capacity. On that basis, contracts can be

challenged in the civil courts—usually the county court. The Bill would not change that rule.

The Court of Protection has a different function under the Bill. It is designed to make decisions for a person who lacks capacity or to appoint someone else to do so. Under our system, expertise on contracts rests with the civil courts. The Bill's provisions for court orders and deputies will help people with specific difficulties to manage their finances. However, if someone had difficulty managing their finances, the best course of action would be to approach the Court of Protection for an order on a specific matter, or, when ongoing decisions are needed, for the appointment of a deputy.

I remind the hon. Member for Chesterfield that the Department of Trade and Industry is doing a raft of work on consumer protection, debt strategy and other matters, which will encompass and tackle the issues of creating better transparency and protecting the vulnerable, including those who lack mental capacity. On that basis, I hope that the hon. Gentleman will not press the new clause.

Question put and agreed to.

Clause 45 ordered to stand part of the Bill.

Clause 46 ordered to stand part of the Bill.

Clause 47 - Power to call for reports

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 62, in clause 47, page 25, line 6, after 'other', insert 'independent'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss amendment No. 63, in clause 48, page 25, line 38, leave out 'or' and insert—

'(dd) by a spouse civil partner or sibling of the person, or'.

Tim Boswell (Conservative, Daventry)

The two amendments are somewhat different. The first refers to the power to call for reports to the Court of Protection, and would insert the word ''independent'' to make the point that under the Bill as drafted, the court might ask

''a local authority, or an NHS body, to arrange for a report to be made—

(a) by one of its officers or employees,''

who clearly would not be independent, or

''(b) by such other person (other than the Public Guardian or a Court of Protection Visitor) as the authority, or the NHS body, considers appropriate.''

My concern in tabling the amendment was that there might be a clash of interest—or, more typically, a perceived clash of interest or an allegation of a clash of interest—because the people were not entirely independent. I should like the Minister to rehearse that thought and consider whether anything else need be done about it. The Court of Protection ought to be capable of looking after itself and avoiding anything that it felt might be influenced by the circumstances in which it was prepared. However, I am not sure whether we should be more precise and specify the sort of reports required.

Amendment No. 63 relates to applications to the court under clause 48. Several different groups of

people are entitled to apply without permission, while other groups of people require the permission of the court. Under clause 48(3), when deciding whether to grant permission, the court

''must, in particular, have regard to—

(a) the applicant's connection with the person''.

Clearly, there is a certain interest to the court by saying, ''Are you related? Do you know anything about the person? Is this just a fishing expedition and there is no background or connection at all?'' That is not what we would want nor, given the likely scale of fees in respect of the Court of Protection, does it make sense.

I want the Committee and the Minister to consider fees for a moment. If someone has to make application, even for his case to be considered, that by itself might generate a fee and the person might then feel aggrieved if he were turned down, even when he considered that he had a relevant connection with the person involved. I am not talking about frivolous cases, but those in which the judgment was perhaps finely balanced.

The amendment would simply specify categories of person other than P, but closely related persons, who would have an inside track to the Court of Protection, and who would not have to ask whether they could talk to the court or make application to it. That would include spouses, civil partners or siblings. I have drawn up the amendment fairly tightly because I did not want it to extend to everyone. I have referred already to the provisions under subsection (3), but I should be grateful to receive the Minister's response to the issues that I have raised.

David Lammy (Labour, Tottenham)

First, let me explain the reasoning behind subsection (3). The provision is designed to ensure that the court can view health and social care information held by the NHS or local authorities. Such information, although not strictly independent, might be vital in helping the court to reach a decision. We talked earlier about how a judge, in particular, might require certain information.

Subsection (3)(b) was included in the clause because the local authority or NHS body may subcontract the work to someone else. It ensures that, for example, a report from a manager of a care home where the person concerned was resident could also be commissioned, if necessary. Thus in most cases the other person is a subcontractor working for the local authority or the NHS. That is not to say that the court cannot obtain independent evidence, as the hon. Gentleman said. It can. Clause 47 also provides that the court may require the public guardian or a Court of Protection visitor to make a report and, if necessary, visit and talk to the person concerned before making that report. Such reports would, of course, be independent. I hope that I have reassured the hon. Gentleman.

Tim Boswell (Conservative, Daventry)

Will it be possible for a Court of Protection visitor, as part of the process, not only to meet P and have an interview with him, but to talk to

people who are closely associated with P and who might be useful in forming a view of the case?

David Lammy (Labour, Tottenham)

Yes, such action would most definitely be well within the scope of the Court of Protection visitor.

As for amendment No. 63, I am sympathetic to the hon. Gentleman's desire to ensure that those who care for a person who lacks capacity can be as closely involved in his welfare as possible. The intention of clause 48 is to protect people who lack capacity from being the subject of unnecessary inappropriate or disproportionate court proceedings. The Court of Protection, like the Bill, is focused on the best interests of the person who lacks capacity. Court cases should thus be brought in the interests of the person lacking capacity, not of their siblings or partner. Allowing spouses, partners and siblings to bring proceedings to the court without prior authorisation could subject vulnerable people to stressful and unnecessary court proceedings. For example, if two sisters disagreed about who could best care for their brother who lacked capacity, it would not necessarily be in the brother's best interests to be subject to a court dispute.

I hope that the hon. Gentleman will agree with me that the court should be able to check applications, and grant permission only to those that are truly necessary and in the best interests of the person lacking capacity.

Tim Boswell (Conservative, Daventry)

I hope that it will not be unreasonably expensive for an interested person who might be bringing proceedings not because they are litigious but because they have a serious issue to raise. They should not feel that they are ruled out of court by the sheer expense of applying for their point of view to be considered, even before an actual case is brought.

David Lammy (Labour, Tottenham)

The hon. Gentleman knows that various costs orders are available to the judge. Indeed, the court can award fees to be met from P's assets, if it is satisfied that the application is worthy. It is right to have the permission stage—it is considered normal under the Children Act 1989. I hope that I have convinced the hon. Gentleman and that he feels able to withdraw his amendment.

Tim Boswell (Conservative, Daventry)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 112, in

clause 47, page 25, line 17, at end insert

', and

(c) any record held by a person registered under Part 2 of the Care Standards Act 2000 (c.14)'.—[Mr. Lammy.]

Clause 47, as amended, ordered to stand part of the Bill.

Clause 48 - Applications to the Court of Protection

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 237, in

clause 48, page 25, line 40, at end insert—

'(e) by a person named as an appointee for financial affairs by the Secretary of State where no continuing power of attorney exists.'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss the following amendments: No. 238, in

clause 49, page 26, line 16, at end insert—

'(ba) as to donees, deputies and appointees for financial affairs by the Secretary of State where no continuing power of attorney exists, being entitled to be notified of, and be made parties to, the proceedings;'.

No. 239, in

schedule 4, page 53, line 45, at end add—

'Duty to give notice to appointee for financial affairs

8A (1) Subject to sub-paragraph (2), before making an application for registration the attorney must give notice of his intention to do so to the appointee for financial affairs by the Secretary of State where no continuing power of attorney exists.

(2) Paragraph 7(2) applies in relation to the appointee as it applies in relation to a person who is entitled to receive notice under paragraph 5.'.

Tim Boswell (Conservative, Daventry)

These are amendments of somewhat exquisite complexity and obscurity. They were not drafted by yours truly, but I tabled them. Their purpose is to have a parting shot at the anomaly thrown up by our discussions about the appointee system under the Department for Work and Pensions.

Large numbers of people will be involved in the system. The conventional estimate by the Making Decisions Alliance is 200,000; answers I have from the Department suggest that the true figure may be higher—and that is on top of the numbers who will be court deputies. It is also clear that there are genuine concerns about how the system has grown over the years and whether the duties properly incorporated into this legislation, including the principles in clause 1, will be reflected in the appointment system. In further briefing, the Making Decisions Alliance states:

''The MDA believes it is a massive oversight to not include the approximately 200,000 people who lack capacity and who have appointees appointed by the Secretary of State for Work and Pensions. We consider that all the safeguards that apply within this Bill should apply equally to those who only receive benefit income.''

I realise that this is late in the day and that legislation is difficult to put together. I know that the Minister has difficulties—I am not suggesting that they are of a personal nature, or anything to do with rivalry—with the Department of Health, and that it may be complicated to bring in a third player, but I am pleased that he is in active discussion with the DWP.

The best may be the enemy of the good on this matter, and we may not get an exact incorporation of the appointee system at this stage. However, I hope that some of the important principles are there. In particular, I was struck by the MDA's briefing, which makes two key recommendations. The first is the need for one set of rules and comprehensive safeguards, which flow from the principles set out in clause 1, but also include some of the types of safeguards in relation to financial matters that we have been discussing today. Secondly, the briefing flags up concern about the lack of clarity about how the two systems will work alongside each other.

The purpose of the amendments is to provide a framework within the terms of the Bill to emphasise those concerns, which have already been implicitly and explicitly expressed by a number of members of the Committee. I do not think that we will make the walls of Jericho fall in an afternoon, and I do not intend to press the amendments to a vote, but I do intend to impress on the Minister our belief that he should pursue those negotiations with the DWP. I draw attention to the difficulty that a deputy is a court appointment and an appointee is an administrative appointment in the name of the Secretary of State, although I realise that that is a qualitative difference. Even if the two systems cannot be brought together under the Bill, it is important that the principles in the Bill, which affect many of the same kinds of people, should be expressed in the current and future practice of the DWP. I leave the matter with the Minister, but I would appreciate a response from him.

David Lammy (Labour, Tottenham)

As I have said, I understand that this is an important area. It is right that we take work forward with the DWP on the work of appointees. Indeed, that work has already been going on among officials. I indicated to the hon. Member for Sutton and Cheam that I intend to speak to the appropriate Minister about those matters shortly.

Amendment No. 237 is about applications to the Court of Protection. Clause 48 includes a requirement for people to get permission before they can bring cases to the Court of Protection. We have had some discussion about that permission stage. My argument for resisting the amendment is similar to the one that I used in resisting the amendment tabled by my right hon. Friend the Member for Coatbridge and Chryston (Mr. Clarke) in respect of independent consultees. It might be argued that there are other categories of people who could also be allowed to apply directly to the court. In that context, the hon. Member for Daventry put forward a good argument for spouses, partners and siblings. Arguments might also be made for other close relatives, or professionals. However, we have deliberately kept the group narrow. I believe that to be the right decision, for the reasons that I have given. I assure hon. Members that we will add appointees to the category of people who can apply to the court directly, if that seems appropriate.

Amendment No. 238, dealing with the rules of court, is about the Court of Protection. Clause 49(2) lists 10 subjects on which the Lord Chancellor may make rules for the new court. The list is not exhaustive—other subjects will also need to be dealt with in the rules—but it gives an indication of some of the things that may be needed, and about which there might otherwise be doubt as to whether the rule-making power was broad enough.

The amendment proposes that a rule may be made providing for deputies, attorneys and appointees to be notified of the proceedings. I appreciate why it has been proposed. Clause 49(2)(b) makes it clear that that the rules may make provision

''as to the persons entitled to be notified of, and be made parties to, the proceedings.''

I assure the hon. Gentleman that that provision is broad enough to encompass all the persons referred to in his amendment, and I undertake to take his suggestion into account when the rules are developed.

Amendment 239 concerns the notification of the registration of enduring powers of attorney. It deals with the registration of EPAs and, as I have said before, people who have created EPAs before the commencement of the Bill will continue to be able to register them. Schedule 4 provides for EPAs to be subject to registration on a basis similar to current arrangements. The amendment would add another change—to add appointees to those people who should be notified.

Again, I understand that the hon. Gentleman's aim is to place the appointee in a similar position. However, it is important to understand that, as he suggested, there is a difference between the role of an appointee as an administrative officer and the role of a deputy. On that basis, it would be difficult to accept his amendment. The hon. Gentleman says that he is seeking to probe and to alert us to the role of appointees, and I understand why he has chosen to do that. I hope that on the basis of what I have said, he feels able to withdraw his amendment.

Tim Boswell (Conservative, Daventry)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 48 ordered to stand part of the Bill.

Clauses 49 to 51 ordered to stand part of the Bill.

Clause 52 - Fees

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to move amendment No. 152, in

clause 52, page 28, line 2, at end add—

'(d) exemption from fees where a deputy is appointed totally in relation to state benefits and such capital that accrues from state benefits.'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss the following amendments: No. 153, in

clause 52, page 28, line 6, at end insert—

'(d) other bodies representing people who lack capacity.'.

No. 154, in

clause 52, page 28, line 8, after 'fees', insert 'and remission of fees'.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

We now have the Minister's attention on the issue of appointees, which I want to discuss again briefly. As the hon. Member for Daventry said, my hon. Friend the Member for Chesterfield has been diligently beavering away; he has tabled quite a lot of parliamentary questions on the issue. It is fascinating that although the Making Decisions Alliance briefing, which we have all seen, says that about 200,000 people are covered by the appointee scheme in respect of benefits, when my hon. Friend asked the Secretary of State for Work and Pensions how many benefits claimants have appointed appointees under the system, he was given some numbers, but was told:

''The only available information is for the number of pension credit and income support claimants''.—[Official Report, 3 November 2004; Vol. 426, c. 340W.]

The wording is careful and it suggests that there are other figures that are not known. That raises a host of questions about how it is possible to run a system that guarantees some protection for those who lack capacity, in terms of the use of their benefit incomes, if we do not know how many people are meant to be acting as appointees.

Tim Boswell (Conservative, Daventry)

I rise simply to reinforce the hon. Gentleman's remarks. It is clear from the replies that I have had, and from the whole tone in which the Department is reacting, that no one is in overall control of the system. If that is the case, no quality assurances can attach to it.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am grateful for that intervention. It is also interesting to note that the relevant Select Committee has not considered the matter for some considerable time—if, indeed, ever—so the subject has not had the benefit of much close parliamentary scrutiny of any fashion. This is one of the rare occasions on which it has come in for at least some vicarious exploration.

My hon. Friend the Member for Chesterfield asked what checks are undertaken by staff in the Department for Work and Pensions to ensure that benefits paid to an appointee are used on behalf of the claimant. The answer was:

''Currently formal monitoring of appointeeships is not carried out''.—[Official Report, 2 November 2004; Vol. 426, c. 246W.]

When complaints are made—where there is evidence that the appointee is not acting in the best interests of the customer—the appointee is interviewed and reminded of their duties and responsibilities. The answer goes on to say that there is a final power to revoke an appointment if matters are not satisfactory.

This is an important issue, and I am delighted that the Minister will be having a meeting with his opposite number in the DWP. I hope that before the Bill completes its passage the Government can come to a settled view on how to marry the two systems, or, if they are not to be married, how they will run alongside each other.

Joan Humble (Labour, Blackpool North and Fleetwood)

As a member of the Work and Pensions Committee, I draw it to the hon. Gentleman's attention that we are undertaking an inquiry on pension credit and are looking specifically at implementation and the nitty-gritty of delivering. He may wish, at this late stage, to write to the Chairman of the Committee advising him of those concerns, which we may well take into account in our inquiry.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am grateful to the hon. Lady. I have indeed spoken to the Chairman of that Select Committee, which is why I made that assertion. Clearly, the Select Committee is always conducting examinations and there are occasions when it might look into a matter. I shall certainly take the hon. Lady up on her suggestion.

Amendment No. 152 is intended to pave the way for bringing the appointeeship system within the ambit

of this legislation and of the Office of the Public Guardian in so far as the costs of meeting an appointeeship and the budget attached to that would need to be transferred to the Office of the Public Guardian from the Department for Work and Pensions.

Amendments Nos. 153 and 154 address a slightly different issue. The Bill lacks clear provisions for wide consultation on the fees that will be set for registering an LPA and is completely silent on whether there might be scope for a scheme of remission—waiving of fees. I understand that under the current system the fee to register an EPA is £230, although I stand to be corrected if it has gone up.

David Lammy (Labour, Tottenham)

For the record, it is £220.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I thank the Minister and give way to the hon. Member for Daventry.

Tim Boswell (Conservative, Daventry)

I rise to reinforce the hon. Gentleman's point. He should remind the Committee that there is also the lawyer's charge for executing the EPA. In the case of my late mother, we paid that in the week before she sadly died. It cost us another £170-odd, which I do not think is out of line.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Either way, I got the figure wrong and I am grateful to the Minister for correcting me. The current rate for an EPA is £220. The hon. Member for Daventry rightly draws our attention to the fact that that is not the entirety of the financial costs involved.

This provision is intended to ensure that there is consultation with a wide range of interested parties on what the rate should be for LPAs and on the nature of the scheme of waiving and remissions that might exist. I understand that under the current arrangements for EPAs the fee can be waived for those on income support, which is to be welcomed, and that those with savings of less than £16,000 and no property may also qualify for a reduction to £65. I hope that I have not mis-transcribed that figure as well.

My question is twofold: what publicity arrangements exist to ensure that people are aware of the concessions for those on low incomes and what is the Government's intention in respect of LPAs? More widely, what is the policy intention with regard to the new LPA fees? Is it that the administration costs should be fully recovered, and if so what estimate has been made as to what that implies for the fee for an LPA? That is the one thing that is not touched on in the explanatory notes. It would be useful to get some benchmark as to whether there will be a substantial increase in the costs compared with the EPAs. If there will be such an increase, that raises questions whether everyone who may want to avail themselves of this will feel it is too expensive for them to be able do so, which would be a great pity.

David Lammy (Labour, Tottenham)

Amendment No. 152 would provide a specific power to make exemptions in cases where a deputy is appointed only in relation to state benefits and any capital accruing from them. It is important to understand that a financial deputy would not usually be appointed solely in relation to state benefits. If state benefits were the only source of income, the Department for Work and Pensions would establish an appointeeship. It is not likely that the Court of

Protection would become involved, because deputyships are appropriate when someone's finances are sufficiently complex to require ongoing management, which is unlikely if someone is solely in receipt of benefits. Much has come up about that, but appointees deal with the cash sum while deputies are often required to deal with various forms of financial arrangement. It is important to draw that distinction.

Professionals such as accountants and solicitors often act as receivers. Their professional expertise is needed for the complex work involved and they are remunerated accordingly. If an application were for a welfare deputyship, it is possible that a fee exemption would apply in any case. It is intended that people on low incomes and with few assets will be exempt from paying fees. On current practice, if a person had savings or assets of less than £12,000, the whole court fee would usually be waived. The hon. Member for Sutton and Cheam talked about someone with assets or income of £16,000. Anyone who considers he cannot afford to pay a fee will, of course, be able to apply to the court for remission of all or part of the fee. The court will have the discretion to remit the fees if payment would cause financial hardship.

Clause 52(3) requires the Lord Chancellor to consult the appropriate judges before making any fees orders, such as the president, the vice-president and the senior judge of the Court of Protection. Amendment No. 153 would require him to consult other bodies representing people who lack capacity. Clearly, I agree with the intention behind the amendment, but I am not sure that it is necessary to put it in the Bill. I accept that consultation should extend beyond the judiciary. That is the case at present and it will remain so.

Before the Lord Chancellor sets fees, the Court of Protection and the public guardian consult a wide range of stakeholders who form part of the Public Guardianship Office's consultation forum. I am not sure whether the hon. Gentleman has had the opportunity to read the annual report and accounts of the Public Guardianship Office. The hon. Member for Daventry waved a copy of it in Committee this morning, but the hon. Member for Sutton and Cheam will see that the membership of the consultative forum is set out on page 76 and that it includes all the organisations that he would be keen to be consulted, including Help the Aged, Mencap, Mind, the Alzheimer's Society, Age Concern, the Law Society and others. I hope he is satisfied by that.

On amendment No. 154, clause 52(4) requires the Lord Chancellor to bring information about fees to the attention of people who are likely to pay them. Again, that reflects provisions under the Courts Act 2003. The amendment would require the Lord Chancellor also to publicise the arrangements for fee remissions. I assure the hon. Gentleman that the PGO's information on fees always includes information on remission and reduction because, as he said, that is important.

Work is still being done on the estimation of fees. We are aware of the cost issues involved and we

undertake to ensure that the fee is as low as possible. It is likely to be lower than £220 because we expect that there will be many more LPAs, so there will be economies of scale. On that basis, I hope the hon. Gentleman will withdraw his amendment.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am grateful to the Minister for his response to the amendments and for his assurances. The intention behind having a clear statement under the Bill on other bodies being consulted is that it is always better in such matters to be confident that we are legislating for the worst possible case and for the worst possible Government in respect of their intentions on consultation. To have such a statement in the Bill is the way to ensure that the Minister's good intentions and practice as of now continue, so any Minister who did not want to take such action would have to repeal the measure. However, I am comforted by what the Minister said and, on that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 52 ordered to stand part of the Bill.

Clauses 53 to 55 ordered to stand part of the Bill.

Clause 56 - Functions of the Public Guardian

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to move amendment No. 235, in

clause 56, page 29, line 18, leave out from 'maintaining' to end of line and insert—

'(i) a register of lasting powers of attorney, and

(ii) a separate register of lasting powers of attorney where notification of its use has been received.'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to take the following amendments: No. 236, in

clause 56, page 29, line 36, at end insert—

'(i) undertaking and publicising the existence of monitoring of a random sample of registered and notified lasting powers of attorney each year,

(j) checking at registration and at notification whether the donee is—

(i) bankrupt, or

(ii) an individual whose name is registered on a list under section 81 of the Care Standards Act 2000, and acting in accordance with provisions in this Act,

(k) undertaking an assessment of the need for future monitoring of a lasting power of attorney in circumstances where there is no named person to be notified of registration, or where in the opinion of the Public Guardian circumstances warrant monitoring of the operation of the lasting power of attorney.'.

No. 64, in

clause 56, page 29, line 36, at end insert—

'(i) reporting annually to Parliament on the discharge of his functions, and making public such information obtained in the discharge of his functions as may be in the public interest'.

No. 65, in

clause 57, page 30, line 42, at end add—

'(7) The Lord Chancellor may from time to time issue reports on the work of the panels of Special and General Visitors, provided that the individual subjects of such visits cannot be identified'.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The amendments standing in my name and that of my hon. Friend the Member for Chesterfield are intended to take us back to an issue that we discussed in a previous sitting: how can we put in place a mechanism to facilitate monitoring of LPAs? Our view is that we should do so. The Joint Committee made a recommendation on that and the Government responded that it would be difficult to put in place a requirement for reporting on the first occasion on which an LPA is used:

''Further notification by the donee at a notional point of incapacity could bring difficulties''.

That was the Government's reason for not acquiescing in the Committee's recommendation that there be a system to capture the fact that an LPA has been triggered and is being used. The reality is that many people might take up the option—the Minister has told us that he expects and hopes that more people will have LPAs than have hitherto had EPAs—but many of those will never be used. Therefore, exactly how we monitor the situation and where we put our resources to ensure that they are used appropriately is a very difficult issue.

The amendments simply say that the Office of the Public Guardian should be able, on a random-sample basis, to satisfy itself on behalf of the public interest that the LPA is being exercised in a way that accords with the principles of the Bill.

The argument deployed by the Minister earlier, which was part of the response to the Joint Committee, is that because capacity fluctuates and because different decisions might involve P and mean that P takes the decision for himself, or could do so if he was supported and so on, it is impossible to have an arbitrary point at which registration takes place. But surely there is in the framework of the Bill a provision for an LPA and a clear point at which someone can exercise their attorney rights under that power. So, there is a particular point at which it is first triggered. That first point should be the tripwire used to create information that the Office of the Public Guardian can use as a basis for monitoring.

I am told that the PGO is developing a risk assessment method of deciding on the level of monitoring of receivership cases. It has been put to me, and I put it to the Minister, that a similar system of risk assessment could be developed and applied in the case of LPAs. For example, an LPA that does not name anyone to be informed of registration could trigger a risk assessment. Is that not a possibility for ensuring that additional safeguards are built in at that point? Surely the Office of the Public Guardian is there to take an interest at that stage if no other parties are being notified that the LPA is being put in place.

An example given to me by the Making Decisions Alliance illustrates a concern about how the draft code of practice is written. It obviously needs to be written in very clear terms. On the question of abuse by donees, the alliance cites paragraph 6.16 of the draft code, which appears to condone the use of a donor's finances to fund the school fees of the donee's child. In the example, the donor had expressed a wish that his grandchild attend the same school as he and his son did, but there was nothing to say that the grandfather

had authorised the use of his money for that purpose. Perhaps judicious redrafting might avoid that impression being given. My wish for my son's son, yet to be born, to go to the same school as I did does not necessarily mean that I want my money to be spent on that outcome.

That is the thrust of, and intention behind, the amendments. Even if they are not in a suitable form, I hope that the Minister will say that the Government are minded to consider further the principle behind them—that of adding additional safeguards to LPAs.

Tim Boswell (Conservative, Daventry)

I am interested in the comments that have been made. The annual report of the Public Guardianship Office makes it clear that it undertakes

''checks to establish that receivers are carrying out their duties in an appropriate manner.''

That is now settled. There is a slight distinction, in that receivers operate under the Court of Protection, whereas appointees or donees with LPAs will have been appointed by the individuals concerned while they had capacity. There is a slight logical difference, but it is important that both receivers and donees operate to the same standards and effect. The Minister will want to respond to that.

The purpose of my two amendments, the first of which I am ready to admit is probably redundant, is to put in a formal obligation on the public guardian to make an annual report to Parliament. His annual report comes like a breath of fresh air and is a positive document. Even if in the past there have been criticisms of the Public Guardianship Office, some of which I have shared and other hon. Members have expressed, the fact is that things are looking up. The annual report shows a much more responsive approach, which I welcome.

In the small print, it appears that the annual report is not attached to legislation, although I may have overlooked that, but it says that

''the report and accounts''—

presumably the financial ones—are

''prepared pursuant to Section 7 (2) of the Government Resources and Accounts Act 2000''.

I am not clear where in the Bill the obligation to produce an annual report would arise, or whether it would arise under separate legislation. Having got as far as we have, I cannot imagine that the public guardian would wish to withdraw the practice of issuing an annual report, and I would not feel comfortable if he did.

I want to raise one other issue: the public nature of the public guardian's register of LPAs at the time that they are executed. I confess that I have come away from the issue and realised that I do not quite know what is to be involved. I am not clear whether the whole register will be available to the general public, whether selected bits will be, or whether there is some provision—perhaps on grounds of security or confidentiality—for withdrawing information.

If I wished to execute an LPA as soon as the Bill was through and I registered that with the public guardian, would all that information be available? Would the fact that I made it, and my name, be

available? Would there be some difference of status when it first operated? If somebody had a mental illness from which they made a full and apparently permanent recovery, would the information be withdrawn or its status changed? I do not know the answer to those questions, so it would be useful if the Minister said a word about them.

Amendment No. 65 recognises the particular sensitivity of the work of the panels of special and general visitors under the Lord Chancellor's Department. That is designed to assist the process and the court. I have no difficulty with it—we cannot spend our lives commissioning annual reports willy-nilly—but the intention behind the amendment is to enable the Lord Chancellor to bring to the attention of interested parties such as Parliament an appreciation of what is going on, the scale of the effort and the potential difficulties that the visitors may experience.

The real test is the operation of that system in practice, not how we set it up in law, although we obviously have to operate through the medium of law. There is a complex triangle: the court, the public guardian and the Official Solicitor, about whom we have not talked but whose job is to represent people who lack mental capacity in court. We should never forget that at the heart of that triangle is P himself. We need to ensure that whatever is done operates to P's benefit, as I am sure the Minister intends. The more he can fill us in about that concern, and answer specific questions, the more helpful it will be.

David Lammy (Labour, Tottenham)

I turn first to amendment No. 235. One of the functions of the public guardian is that he should establish and maintain a register of lasting powers of attorney. Amendment No. 235 would require the public guardian to maintain a separate register of lasting powers of attorney where notification of their use had been received.

I return to our discussion about the principles of the Bill. In earlier exchanges the hon. Member for Sutton and Cheam emphasised that clauses 1 to 4 applied to attorneys, and I confirmed that the principles already apply to them. The first of those principles is the assumption of capacity. A person must be assumed to have capacity unless it is established that he lacks it. I remind hon. Members that in clauses 2 and 3, establishing a lack of capacity involves a functional test to establish whether a person lacks capacity in relation to a particular matter at a particular time.

The Bill aims to do away with blanket findings of a lack of capacity, and therefore goes to the heart of the business of registration, which we discussed earlier. We realise that that makes life more complex for those who work in service or retail industries. We want banks and businesses to apply the functional test, to realise that just because someone lacks capacity to take a particular decision today, it does not mean that he may not be able to take that same decision tomorrow. Similarly, just because a donor cannot take a decision about selling his house, it does not mean that he cannot decide how to spend his weekly pension.

The hon. Member for Sutton and Cheam himself alerted the Committee to that tension, and commented

earlier that if the banks had to make additional checks outside the system, they would be breaching a person's article 8 rights relating to private and family life. Would not the creation of a list of donors who had once lacked capacity to make a decision restrict the person's rights and freedom of action? I say to the hon. Gentleman that the same argument applies.

We will have to work with financial institutions, helping them to formulate their own policies and develop best practice, and we will offer guidance on what they can do if they have any doubts about a person's capacity. We are already working with the banking industry and others to ensure that staff are trained and educated in how to apply the principles of the Bill. However, we are clear that it is right that everyone should be able to make all the decisions that they can. Creating a list of donors who had once been incapable of taking a specific decision would risk their being labelled as incapable forever after. That is why I shall resist anything that cuts through the heart of what the Bill is about.

I said that I would discuss safeguards. On the subject of monitoring, it is true that the Joint Committee recommended an additional safeguard mechanism by which the Court of Protection and the public guardian could monitor the use of LPAs with a view to preventing the abuse and exploitation of a donee's powers, and ultimately protect vulnerable adults from abuse and exploitation. However, I am not clear how notification on first use would help. Notification will not indicate that abuse is about to take place, only that the attorney has done what is required—done his duty and notified the public guardian that he wants to use his authority; the rogue attorney might not do that.

The important point is that LPAs are registered. Under the current system many EPAs are not registered as they should be when capacity is lost. The same problem would apply to any new requirement to notify. Once an LPA is registered there is a public record of the attorney. If an attorney acts contrary to the person's best interests, the public guardian can investigate, and the court can revoke the LPA if necessary. We talked about the many people involved, including the independent consultees, social services, health care professionals and others who could refer such a case to the public guardian.

On the specific point made by the hon. Member for Daventry, we are still thinking about what would be included for the public on the register. At this stage, I can say that there would be brief details, but not a full address. We do not want to make the document an opportunity for a fishing expedition by people seeking information for other purposes. There is a balance in thinking about this, and wanting to consult and to ensure that we get it right.

Amendment 236 seeks to reduce the possibility of unsuitable people being appointed as LPAs by making it a function of the Public Guardian to carry out certain checks. We have discussed that previously in Committee. Clause 10, particularly, provides:

''An individual who is bankrupt may not be appointed as donee of a lasting power of attorney in relation to P's property and affairs.''

That mirrors existing provisions for enduring powers of attorney. However, we come up against decision and choice. If people are making a choice about who is their attorney when they have capacity, we must allow them to do that. In speaking about that previously, I referred to a case where a mother wanted her son to have powers of attorney, even though he had a criminal record, and the court allowed it to happen. Although he had a criminal record, it did not mean that he was not able to manage his mother's affairs.

We have talked about the protection of vulnerable adults list, which is an important development, and I have explained previously that it relates to care providers. Of course parliamentary counsel have considered it, but I have not been able to extrapolate that specific provision, which relates to care providers, and extend it to cover the proposed legislation. This amendment does not provide the opportunity to do so. The Government are considering recommendation 19 of the Bichard report, which covers the arrangements for vulnerable people in relation to what we are talking about, and a register—and that may provide the opportunity to take this matter forward.

I shall deal now with amendment No. 64. The Public Guardianship Office is currently an executive agency and is required to produce a stand-alone annual report and accounts. At least two Committee members have the report in front of them today. Under the Bill, the public guardian has the status of a public official appointed by the Lord Chancellor, who is in turn accountable to Parliament. The precise arrangements for the delivery of the public guardian's functions will be determined as part of our detailed implementation planning. We will ensure that clear reporting arrangements are in place, but I do not believe that it is necessary or appropriate to prescribe in the Bill what the reporting arrangements for the public guardian's functions should be. It might, for example, be appropriate for the public guardian to report directly to Parliament, or for the Lord Chancellor to include a report on the work of the public guardian in his own report. We should consider the relationship between the public guardian and the Court of Protection and how we move forward with them.

Similar issues arise on amendment No. 65, which relates to clause 57 and Court of Protection visitors. The Lord Chancellor appoints people to a panel of special visitors, or general visitors, and they can be directed to carry out visits and produce reports by the court, as detailed in clause 47, or in clause 56, which deals with the public guardian. The amendment would enable the Lord Chancellor to issue reports on the work of the visitors from time to time, provided that the individual subjects of such visits could not be identified. I am not sure whether that is necessary.

The Lord Chancellor is responsible for the appointment of the visitors, and no specific provision is necessary to permit him to issue reports on their work. The Court of Protection and the public guardian will be able to direct visitors to carry out

visits. I hope that that will be encompassed in their annual reports. Much of this is about taking the work of the public guardian into our communities. That is why they are doing workshops and seminars. The Bill merely gives them the opportunity to take that work forward.

Tim Boswell (Conservative, Daventry)

To assist the Minister, I draw the Committee's attention to the fact that membership of the public guardian consultative forum already includes one medical visitor and one Lord Chancellor's visitor, presumably a general visitor. In a sense, the point is captured.

David Lammy (Labour, Tottenham)

I am grateful for that. I therefore hope that the hon. Member for Sutton and Cheam feels able to withdraw the amendment.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am grateful to the Minister. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 113, in

clause 56, page 30, line 15, at end insert

', and

(c) any record held by a person registered under Part 2 of the Care Standards Act 2000 (c.14)'.—[Mr. Lammy.]

Clause 56, as amended, ordered to stand part of the Bill.

Clause 57 - Court of Protection Visitors

Schedule 3 - International Protection of adults

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 72, in

schedule 3, page 43, line 7, leave out subsection 4.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss the following amendments: No. 73, in

schedule 3, page 44, line 24, leave out paragraph (b).

No. 74, in

schedule 3, page 48, line 9, after 'placement' insert

'and give any party it may feel is likely to have an interest in the outcome notification that it is doing so'.

No. 75, in

schedule 3, page 48, line 31, at end add

'or

(c) would breach the confidence of any individual'.

No. 76, in

schedule 3, page 49, line 6, leave out sub-sub-paragraph (a).

No. 77, in

schedule 3, page 49, line 13, at end insert

'and—

(e) require notification of any certificate to be given to the Public Guardian, the Official Solicitor, or any other interested party.'.

Tim Boswell (Conservative, Daventry)

The Minister will be familiar with our work on the Gender Recognition Act 2004; the Committee considering that legislation became quite warm over the question of private international law, but it was marked by the same kind of consensuality and constructiveness as this Committee has shown. With those thoughts in mind, I am pleased to say that when I tabled a question recently to the Department for Constitutional Affairs about the Department's growing competence in relation to private international law I received a thoroughly constructive response.

I am glad to hear that Sir Peter North, whom I have known for some time, is actively engaged in this; it is an important to open up that area. I claim no expertise, and the last thing I wish to do at this stage is to invite the Minister to sit an exam on The Hague convention, but I make these general points because it is important.

We know from our casework that from time to time, difficult situations arise involving individuals from one country who may be removed to another, or whose interests may be in different places. That is germane to the argument. The amendments have a series of different imports, so I shall flag them up and allow the Minister to respond.

Amendment No. 72 deals with incapacity. The word appears in The Hague convention, but it has been excised from the Bill in favour of the broad concept or general principle of capacity. Will the Minister comment on that?

Amendment No. 73 probes the interaction between the system operating in England and Wales and that of Scotland—and, discretely and separately, in Northern Ireland. It is important that people should be attached to the right country, and that the legislation should work smoothly when people are being transferred between those countries, particularly if someone's residence has changed.

The purpose of amendment No. 74 is to make the point that if a placement takes place there should be proper notification to any relevant interested party; they should be told of the decision. Amendment No. 75 is designed to avoid any unnecessary breach of confidence.

I shall not go into great detail about amendment no. 76; it involves the leaving out of a sub-sub-paragraph. However, it raises an important principle. If the convention is in place, one has to ask why it is necessary to consider legislation that would give further effect to it. Is it because there are aspects of the convention that are not yet in place, or is it a catch-all provision in case some aspects of the convention's work is developed and we need separate legislation? Those in another place get very excited about any sort of Henry VIII clause.

Amendment No. 77 relates to requiring notification of any certificate that has been given in relation to the convention to be given to the public guardian, the

official solicitor or any other party that is, or will be, interested in proceedings. Those are all highly technical probing amendments. I shall not be irritated if the Minister says that it would be easier to write to Committee members about them, but they should be touched on.

David Lammy (Labour, Tottenham)

I did my third-year thesis on private international law, and I was rather hoping to have the opportunity to share its contents with the Committee—[Laughter.] The paragraph in schedule 3 refers to the specific articles and provisions under the convention; for that reason, they are technical and necessary provisions. However, I am grateful for the indication the hon. Gentleman gave to the Committee and I am happy to write to him about the effect of those provisions. I shall share that information with hon. Members, and perhaps we could have a seminar on the matter at some point.

James Cran (Conservative, Beverley and Holderness)

Frankly, I think that there would have been a riot if you had not made that offer, Mr. Lammy.

Tim Boswell (Conservative, Daventry)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 3 agreed to.

Clauses 60 to 62 ordered to stand part of the Bill.

Schedule 4 - Provisions applying to existing enduring powers of attorney

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 78, in schedule 4, page 52, line 5, leave out

'is or is becoming mentally incapable'

and insert

'lacks mental capacity within the meaning of section 2 of this Act.'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss the following amendments: No. 79, in schedule 4, page 55, line 42, leave out

'is not yet becoming mentally incapable'

and insert

'continues to have mental capacity'.

No. 80, in schedule 4, page 56, line 29, leave out

'is for the time being mentally incapable'

and insert

'for the time being lacks mental capacity'.

No. 81, in schedule 4, page 59, line 9, leave out

'by the mental incapacity of the donor'

and insert

'because the donor lacks mental capacity.'.

No. 82, in schedule 4, page 59, line 16, leave out 'has become mentally incapable' and insert 'lacks mental capacity'.

No. 83, in schedule 4, page 59, line 21, leave out 'has become mentally incapable' and insert 'lacks mental capacity'.

No. 84, in schedule 4, page 61, line 6, at end insert—

(22A) If it seems to the Court of Protection at any time, on the advice of the Public Guardian, and after affording opportunity for representations by the interested parties, in the interests of the donor to modify the provisions of an existing and valid Power of Attorney, or to set conditions for its exercise, then the power may be modified accordingly'.

No. 85, in schedule 4, page 61, leave out lines 11 to 16.

Tim Boswell (Conservative, Daventry)

This is not a series of separate amendments, except for one, No. 84. The basis concept of the other amendments is to consider the re-enactment of the enduring powers of attorney to ensure that they can continue in force and be implemented as and when a person loses mental capacity. They raise the issue of the ''old Adam'' coming out in the phrase ''mental incapacity'', or similar usages. I suspect that the Minister will tell us that because, in effect, he is re-enacting enduring powers of attorney, he cannot escape from the prison set by the concept of mental incapacity, and that it is only through this Bill, which creates lasting powers of attorney, that he can. I flag the point up for two reasons: first, because I suspect that it is politically incorrect if we are using ''mental capacity'' elsewhere; and secondly, and more substantially, there is concern that there might be slightly different types of protection, depending on which of two separate legal concepts one is operating under—an enduring or a lasting power of attorney.

Amendment No. 84 would provide a power to modify instruments that would be in the hands of the Court of Protection after it had taken advice from suitable persons. If the hon. Member for Chesterfield had moved his amendments to schedule 4, I might have spoken to them, as our thought is similar, although it is not expressed in the same way. I am worried about the position of somebody who has concluded an enduring power of attorney—it is in place and he has incurred legal costs, although there are no court fees unless and until it is registered. That is a sensible way of proceeding and, especially if financial matters only are concerned, it might be wise to continue with the EPA. However, circumstances might change, and amendment No. 84 simply provides for the court to modify the instrument, having taken suitable advice, rather than tear it up and say that it should be replaced with a lasting power of attorney. The amendment's legal form might not be perfect, but that is the thinking behind it. Can the Minister respond to those points?

David Lammy (Labour, Tottenham)

Schedule 4 makes provision for enduring powers of attorney created before the commencement of the Act and it repeats, with certain amendments, the relevant provisions of the Enduring Powers of Attorney Act 1985, which will be repealed by the Bill. The effect of amendments Nos. 78 to 83 would be that an attorney would have to apply the functional test of capacity at the time of applying for the registration of the EPA. That would go against the current provision that an EPA must be registered at the onset of incapacity. EPAs are required to be registered as soon as is practicable when the donor is or is becoming mentally incapable, and EPAs used prior to the donor's loss of capacity do not have to be

registered. As a result, we do not know how many exist. It is therefore not possible to identify accurately the existing cohort of EPAs. People who have made an EPA in the past have a legitimate expectation that they will be able to use it in future, and we do not consider that it would be right to change the rules on EPAs that exist at the time of commencement of the Bill. Therefore, although we appreciate the hon. Gentleman's intention, the amendments are not desirable and I cannot accept them. I assure him that we shall promote the principles of the Bill. We have discussed good practice, implementation and encouraging people to replace their EPAs with LPAs.

Amendment No. 84 is about the powers of the court to modify existing EPAs. I assure the hon. Gentleman that the court already has certain powers in respect of EPAs. Paragraph 16 in part 5 of the schedule replicates the provisions of the Enduring Powers of Attorney Act and sets out the powers of the court in relation to registered EPAs. Those powers include the right to call for accounts, information or other documents from the attorney. They are designed to enable the court to satisfy itself that the attorney is fulfilling his fiscal duties and acting within the scope of his authority under the EPA. The court has the power to decide any question about the meaning or the effect of the EPA. The hon. Gentleman will be aware that we have created a similar provision for the Court of Protection to keep check on the attorney, and for an attorney to disclaim his appointment in relation to LPAs. That is because the current system appears to work well for the thousands of EPAs that already exist. I therefore hope that the hon. Gentleman will feel able to withdraw the amendment.

Tim Boswell (Conservative, Daventry)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 4 agreed to.

Schedule 5 agreed to.

Clause 63 - Minor and consequential amendments and repeals

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 67, in clause 63, page 33, line 9, leave out paragraph (b).

This is the point at which some outrage might get through if we are not vigilant, although I am sure that one is not intended. I ask the Committee to pause for a second before giving Ministers powers to

''amend, repeal or revoke an enactment, other than one contained in an Act passed in a Session after the one in which this Act is passed.''

That signals, in theory, although I am sure that it was not the intention, open season for a Minister to repeal any Act ever passed. I am sure that the intention was to deal with any inadvertent or consequential changes in other legislation that may not have been picked up by the superbly vigilant parliamentary draftspersons and incorporated in the Bill—the kind of thing that has already given rise to several technical amendments. I shall be grateful if the Minister explains whether I have construed those powers correctly, explains how

he will use them, and assures us that he will not abuse them.

David Lammy (Labour, Tottenham)

I assure the hon. Gentleman—a friend at this point in the Committee's proceedings—that the Government are not unaware of the wider issues surrounding delegated powers in legislation. However, provisions of the type in question are not unusual in Bills that reform existing statutory schemes and which therefore require and entail a large number of transitional provisions and consequential amendments. I know that he will appreciate that such clauses are necessary for any supplementary incidental or consequential provision, and that the Lord Chancellor would need to consider such an order to be necessary or expedient to the purposes of and in consequence of, or to give full effect to, any provision of the Bill once it becomes an Act. Of course, amendments to primary legislation should be subject to the affirmative procedure; that is clearly provided for in clause 63(6). I hope that the hon. Gentleman is reassured.

Tim Boswell (Conservative, Daventry)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 63 ordered to stand part of the Bill.

Schedule 6 - Minor and consequential amendments

David Lammy (Labour, Tottenham)

I beg to move amendment No. 116, in schedule 6, page 68, line 43, leave out from 'from' to 'the' in line 44 and insert

' ''the powers'' to the end substitute ''the powers of'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss Government amendments Nos. 117 to 119, 121, 122, 124 to 128, 130, 131 and 133.

David Lammy (Labour, Tottenham)

As we near the end of this Committee, I believe it is appropriate, before I speak to these Government amendments, for me to take this opportunity to thank all members of the Committee for their hard work and effort. After Second Reading, we all wanted to ensure that this important piece of legislation got appropriate scrutiny in Committee. It is good that we have been able to do that, in addition to the work that has been done, which began under a previous Government, the work of the Law Commission, and the important work of the Joint Committee.

I am extremely grateful to my colleague the Minister of State for all her work when she was in my role in the old Lord Chancellor's Department, now the Department for Constitutional Affairs. It is wonderful that we have been able to work jointly on this Committee. The Bill owes much to her efforts. We are all tremendously grateful.

I am also, as always, delighted to have yet another opportunity to work with the hon. Member for Daventry, who always brings great expertise and knowledge. He is the king of amendments and the king of scrutiny. All hon. Members from all parts of the House enjoy working with him, for the accessible

and courteous manner with which he comes to all debates. All of us on the Committee have worked hard, and I am grateful also to the hon. Member for Sutton and Cheam—

James Cran (Conservative, Beverley and Holderness)

Order. Minister, you can tell us all these things at the end, but I think that I would like to get on with the Bill. We are at amendment No. 116, so can we get on?

David Lammy (Labour, Tottenham)

In that case, I commend the amendment to the Committee.

Amendment agreed to.

Amendments made: No. 117, in schedule 6, page 70, line 7, leave out from beginning to end of line 9 and insert—

'(aa) after subsection (1) insert—

''(1A) In subsection (1)(c), the reference to a person who lacks capacity to carry on the business is to a person—

(a) in respect of whom there is a donee of an enduring power of attorney or lasting power of attorney (within the meaning of the Mental Capacity Act 2004), or

(b) for whom a deputy is appointed by the Court of Protection,

and in relation to whom the donee or deputy has power for the purposes of this Act.'','.

No. 118, in schedule 6, page 70, line 28, leave out from beginning to 'at' in line 29 and insert—

' (1) Schedule 1 to the Local Authority Social Services Act 1970 (c.42) (enactments conferring functions assigned to social services committee) is amended as follows.

(2) In the entry for section 49 of the National Assistance Act 1948 (expenses of local authority officer appointed for person who lacks capacity) for ''receiver'' substitute ''deputy''.

(3) '.

No. 119, in schedule 6, page 70, line 38, leave out 'Schedule 1' and insert 'Schedule 2'.

No. 120, in schedule 6, page 70, line 40, at end insert—

'Local Government Act 1972 (c.70)

(17A) (1) Omit section 118 of the Local Government Act 1972 (c.70) (payment of pension etc. where recipient lacks capacity).

(2) Sub-paragraph (3) applies where, before the commencement of this paragraph, a local authority has, in respect of a person referred to in that section as ''the patient'', made payments under that section—

(a) to an institution or person having the care of the patient, or

(b) in accordance with subsection (1)(a) or (b) of that section.

(3) The local authority may, in respect of the patient, continue to make payments under that section to that institution or person, or in accordance with subsection (1)(a) or (b) of that section, despite the repeal made by sub-paragraph (1).'.

No. 121, in schedule 6, page 72, line 2, at end insert—

'Local Government (Miscellaneous Provisions) Act 1976 (c.57)

(21A) In section 31 of the Local Government (Miscellaneous Provisions) Act 1976 (c.57) (the title to which becomes ''Indemnities for local authority officers appointed as deputies or administrators''), for the words from ''as a receiver'' to ''1959'' substitute ''as a deputy for a person by the Court of Protection''.'.

No. 122, in schedule 6, page 72, line 2, at end insert—

'Sale of Goods Act 1979 (c.54)

(21B) In section 3(2) of the Sale of Goods Act 1979 (c.54) (capacity to buy and sell) the words ''mental incapacity or'' cease to have effect in England and Wales.'.

No. 123, in schedule 6, page 72, line 34, at end insert—

' (3A) Section 142 (payment of pension etc. where recipient lacks capacity) ceases to have effect in England and Wales.

(3B) Sub-paragraph (3C) applies where, before the commencement of sub-paragraph (3A), an authority has, in respect of a person referred to in that section as ''the patient'', made payments under that section—

(a) to an institution or person having the care of the patient, or

(b) in accordance with subsection (2)(a) or (b) of that section.

(3C) The authority may, in respect of the patient, continue to make payments under that section to that institution or person, or in accordance with subsection (2)(a) or (b) of that section, despite the amendment made by sub-paragraph (3A).'.

No. 124, in schedule 6, page 74, line 5, leave out from beginning to '(judges' and insert—

' (1) The Courts and Legal Services Act 1990 (c.41) is amended as follows.

(2) In Schedule 11'.

No. 125, in schedule 6, page 74, line 10, at end insert—

' (3) In paragraph 5(3) of Schedule 14 (exercise of powers of intervention in registered foreign lawyer's practice), for paragraph (f) substitute—

''(f) he lacks capacity (within the meaning of the Mental Capacity Act 2004) to act as a registered foreign lawyer and powers under sections 15 to 20 or section 46 are exercisable in relation to him;''.'.—[Mr. Lammy.]

Schedule 6, as amended, agreed to.

Schedule 7 - Repeals

Clause 64 - Commencement and extent

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 69, in

clause 64, page 33, line 21, leave out subsection (3).

The purpose of the amendment was to probe the legislation's interaction not with foreign countries but with the British Isles, if I may use the wider term. The Minister is well aware, as I am, that there is a devolved Administration in Scotland and separate arrangements for Northern Ireland, and that the Bill extends to England and Wales only. In tabling the amendment, I was also concerned about people who may have connections to the Isle of Man or the Channel Islands, for example. Those are extremely technical matters, and it would be convenient for the Committee if the Minister were to respond to my concerns in the context of the letter that he has already promised about The Hague convention, which is of course concerned with foreign jurisdictions. The subject of my amendment would fit in perfectly well, and its purpose is only to ensure that the legislation works properly for all people who lack capacity wherever they may be, and that our Bill is comprehensive enough to cover them.

David Lammy (Labour, Tottenham)

I shall of course include a response to the hon. Gentleman's concerns in the letter that I have undertaken to write to him.

Tim Boswell (Conservative, Daventry)

With that assurance, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 64 ordered to stand part of the Bill.

Clause 65 ordered to stand part of the Bill.

Question proposed, That the Chairman do report the Bill, as amended, to the House.

David Lammy (Labour, Tottenham)

This Committee has been conducted in a spirit of seeking to make the legislation better, especially for vulnerable people who lack capacity. I am grateful for the spirit in which the hon. Member for Sutton and Cheam has made his contributions. It would be remiss of me if I did not pay tribute to the work of those on this Committee who were also on the Joint Committee, and brought their expertise to bear. I am thinking of my hon. Friend the Member for Blackpool, North and Fleetwood (Mrs. Humble) and the hon. Member for Tiverton and Honiton (Mrs. Browning). My hon. Friend the Member for Crawley (Laura Moffatt), acting as Parliamentary Private Secretary, also made an important contribution on the Joint Committee.

We have discussed some sensitive issues, and those discussions will continue in another place. My hon. Friend the Member for Crosby (Mrs. Curtis-Thomas) and the hon. Member for Congleton (Ann Winterton) have made an important contribution. It has been important to reassure people outside the House about the intent of the Bill, and particularly its sensitive areas. I should also remember my right hon. Friend the Member for Coatbridge and Chryston, who has continued to campaign on such matters, and my

right hon. Friend the Member for Rother Valley (Mr. Barron), for the work that he does with the General Medical Council and the expertise that he has brought to bear.

As usual, the Bill has been extremely well whipped by my hon. Friend the Member for Lewisham, East (Ms Prentice)—so much so that we are able to complete the business before time. We are also grateful for all the work of the officials and Clerks on this Committee. They bring a great deal of expertise, so that we can get on with the work of scrutinising the Bill and getting the best legislation.

Tim Boswell (Conservative, Daventry)

I begin by thanking you, Mr. Cran, and your colleague Mr. Hurst for a chairmanship that has been beneficent and urbane, but always perceptive and attentive to us. We have enjoyed that, and it has helped to set the tone of the Committee.

I also thank the Clerks; it is always a joy for Opposition Members to be able to access their expertise and their advice. I thank the Hansard writers, who have dealt with the more oblique remarks that we have made from time to time with a remarkable strike rate and a high level of success. I also thank the police. This has been a knife-edge Committee, in which anything could have happened, but none of it has—[Laughter.]

Going round the Room geographically, as it were—I first thank the two Ministers. We do not always receive very full or positive responses from Ministers—I do not intend to debate that—but on this Committee they have made a real effort to provide responses and I am grateful for that. I am also grateful for the contributions made by Government Back Benchers, which, without exception, were helpful and contributed to the general tone of the Committee. It has been a much better Committee for that.

I hope that I may also say obliquely—they would be self-effacing, of course—that it has been useful to have the presence nearby of officials, who have advised the Minister and somehow inspired the Committee to reach sensible conclusions.

I also thank the hon. Members for Sutton and Cheam and for Chesterfield—the two Pauls—who have anticipated many of the things that we have done. We have reached convergence, if not triangulation. They have contributed universally and almost entirely constructively.

Turning to my own side, I will deal with the walk-on parts. First there is my hon. Friend the Member for Hexham (Mr. Atkinson) who, although he was empanelled, had other important duties, and has merely numinously expressed his Whiply presence from time to time. My hon. Friend the Member for Bournemouth, East (Mr. Atkinson) made clear to me his regret at not being able to attend, although empanelled, because he had important duties to perform with the Council of Europe. He wrote me a letter about that, which is open to any member of the Committee to read. He was concerned that he could not come, because he takes an interest in this matter.

Having dealt with the absent members of my side of the Committee, I would now like to refer to the powerful presence of my hon. Friend the Member for

Tiverton and Honiton and also to my hon. Friend the Member for Congleton, both of whom have made a huge contribution. They have been immensely reassuring to me, and we have even enjoyed, in the margins of the longeurs of the Committee, making the odd amusing comment to one another.

Before I finish I would like to say, if it is not improper to do so, that we have benefited immensely from the Gallery. People in the Gallery are not allowed to say anything, which can be frustrating—it is a role that I have had on occasions. However, we all know that the feelings that they have expressed, and the correspondence and the briefings that we have received, have been of special value in the genuine effort to put together a working Committee to achieve an objective that we all share—to help people without mental capacity and those who have to make decisions on their behalf.

In conclusion I must say to the Minister that although this has all been sweetness and light, he should not assume that there will never be any moment of dissent in the future. None the less, I think that the Committee has been handled in the right way. At later stages there will be more to say.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The contributions that have been made on this question so far are beginning to sound like some of the speeches that are made at the count, thanking a whole host of individuals. They do, of course, deserve our thanks, particularly those who have to grapple with the ill-formed words that we submit as amendments, and turn them into something that you, Mr. Cran, are able to select so that we can pose our questions to Ministers. We on this side of the Committee have also benefited—certainly I have—from a number of contributions from organisations such as Citizens Advice and the Making Decisions Alliance, including suggestions for the wording of amendments, which have been invaluable in exploring the concerns of the Committee.

We have received some useful and detailed answers to some of the concerns that other hon. Members and I have raised in the Committee; I am grateful to the Ministers for those. We have also received useful reassurances and clarification about how the legislation will work in practice, and one or two useful undertakings to take matters away and consider them.

Rosie Winterton (Labour, Doncaster Central)

More than one or two.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I will check the record, and I stand to be corrected. Perhaps there were many more that I did not notice at the time, but I look forward to their returning in a new guise as Government amendments in due course.

On behalf of myself and my hon. Friend the Member for Chesterfield, I express appreciation for the contributions made by all members of the Committee. The hon. Member for Tiverton and Honiton has made particularly useful and insightful contributions from her experience, which ought not go without note.

However, there are still three things on which we need further reassurance: the withdrawing and withholding of treatment; lasting powers of attorney and advance decision making; and the question of advocacy, over which the Minister of State, Department of Health and I have exchanged views. I shall return to those issues at a later stage, but for now I thank the Ministers and everyone else.

David Lammy (Labour, Tottenham)

I would be remiss not to mention the work of Lord Filkin, who did much work in preparation for the Bill, with the Catholic Church as well as the stakeholders, many of whom have been in the Gallery. I also thank you, Mr. Cran, and your colleague Mr. Hurst, for the way in which you have chaired the Committee, and I hope that I come before you again.

James Cran (Conservative, Beverley and Holderness)

Before I put the Question, I am allowed to say one or two words on behalf myself and my co-Chairman. We have both immensely enjoyed chairing this Committee. I have learned, as I am sure he has, the most enormous amount from listening to what all of you have had to say. I have always felt that the best of the House of Commons is what one hears in Committees such as this. There is an awful lot of light and not a great deal of heat—the Chamber of the House of Commons is precisely the opposite.

I offer you, Mr. Lammy, a slight apology. I did not mean to cut you off at the knees as you were speaking to your amendment, but I wanted to finish the Bill. We too thank all the officials, because without them nothing happens here, but particularly the person sitting on my left. The Clerks ensure that out of chaos comes order and, if I may say so, she has done that magnificently. Many thanks to all of you; it has been a great pleasure.

Question put and agreed to.

Bill, as amended, to be reported.

Committee rose at three minutes past Five o'clock.