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Session 2005 - 06
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Standing Committee Debates

Draft Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (Expansion of Role) Regulations 2006

The Committee consisted of the following Members:

Chairman: Mr. Greg Pope
Blunt, Mr. Crispin (Reigate) (Con)
Carswell, Mr. Douglas (Harwich) (Con)
Clarke, Mr. Charles (Norwich, South) (Lab)
Dorries, Mrs. Nadine (Mid-Bedfordshire) (Con)
Gidley, Sandra (Romsey) (LD)
Goodwill, Mr. Robert (Scarborough and Whitby) (Con)
Irranca-Davies, Huw (Ogmore) (Lab)
Loughton, Tim (East Worthing and Shoreham) (Con)
Lucas, Ian (Wrexham) (Lab)
McIsaac, Shona (Cleethorpes) (Lab)
Marshall-Andrews, Mr. Robert (Medway) (Lab)
Michael, Alun (Cardiff, South and Penarth) (Lab/Co-op)
Mitchell, Mr. Austin (Great Grimsby) (Lab)
Pugh, Dr. John (Southport) (LD)
Tami, Mark (Alyn and Deeside) (Lab)
Walley, Joan (Stoke-on-Trent, North) (Lab)
Winterton, Ms Rosie (Minister of State, Department of Health)
Glenn McKee, Committee Clerk
† attended the Committee

Second Standing Committee on Delegated Legislation

Thursday 19 October 2006

[Mr. Greg Pope in the Chair]

Draft Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (Expansion of Role) Regulations 2006

2.44 pm
The Minister of State, Department of Health (Ms Rosie Winterton): I beg to move,
That the Committee has considered the draft Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (Expansion of Role) Regulations 2006.
May I say how absolutely splendid it is to serve under your chairmanship, Mr. Pope?
In considering the regulations, we will return to issues that were discussed during the passage of the Mental Capacity Bill. The regulations are made under the provisions of the Mental Capacity Act 2005, which provides a statutory framework to empower and protect vulnerable people who are not able to make their own decisions. The independent mental capacity advocates are an important part of that new framework.
The 2005 Act introduces the independent mental capacity advocate service as a new statutory service. It is independent of both the national health service and local authorities. The aim of the IMCA service is to provide high-quality advocacy to support and represent vulnerable people who lack the capacity to make important decisions on serious medical treatment and a change of accommodation. Under the Act, NHS bodies and local authorities have a duty to instruct and then consult an IMCA before making certain decisions when there is no one other than a paid carer to consult when deciding what would be in the person’s best interests. The expansion of role regulations specify additional circumstances when the NHS body or local authority may instruct an IMCA.
We consulted fully on how the regulation-making powers of the 2005 Act should be used. We have also consulted further with stakeholders on the regulations themselves. The expansion of role regulations have been laid before Parliament alongside a further set of regulations—the general regulations—subject to the negative procedure. The general regulations cover operational and implementation details, the role and functions of the IMCA, and a definition of serious medical treatment. A final code of practice on the Act, including a chapter on the IMCA service, will shortly also be laid before Parliament.
The consultation responses showed very clearly that there were situations beyond those listed under the 2005 Act relating to a change of accommodation and serious medical treatment when a person who lacked capacity to make serious decisions may be particularly vulnerable. The expansion of role regulations specify two important new circumstances when NHS bodies and local authorities have the discretion to instruct IMCAs to represent people who lack capacity. Those circumstances are care reviews and adult protection.
Regulation 3 allows for an NHS body or local authority to instruct an IMCA to support and represent a person who lacks capacity to participate fully in the decision when a care review is proposed, or is in progress, when the person has been in accommodation arranged by the local authority for 12 weeks or more, and when the review was not made as a result of an obligation imposed on the person under the Mental Health Act 1983. Of course, the requirements in the 2005 Act relating to the appointment of an IMCA will also apply, which are that the person has no appropriate family or friends who could be consulted and that the person must be unable to take part in the care review because of their impaired capacity. Regulation 3 does not apply to arrangements made as a result of an obligation imposed on the person under the 1983 Act. That is because the 1983 Act contains its own safeguards and rights of appeal.
Regulation 4 provides that an IMCA may be instructed to support and represent a person who lacks capacity in cases of abuse when adult protection proceedings have been instigated and it is alleged that the person is, or has been, abused or neglected by another person, or that he is abusing or has abused another person. The regulations provide that an IMCA may be appointed in such cases when protective measures affecting the person have been taken, or are proposed, by an NHS body or local authority. They must have been made in accordance with adult protection procedures that were set up under the “No Secrets” guidance issued in 2000 by the Department of Health under section 7 of the Local Authority Social Services Act 1970.
It is clear that there is a difference in the conditions between regulations 3 and 4. Whereas regulation 3 provides that an IMCA may not be instructed when there is someone whom it is appropriate to consult, under regulation 4, in adult protection cases, an IMCA may be appointed even when the person has family and friends whom it might be appropriate to consult.
I know that there is a great deal of interest in ensuring that the IMCA provides protective safeguards for people who lack the capacity to make certain serious decisions. That was why we wanted to ensure that there was time for proper debate on the expanded role; hence these regulations being considered under the affirmative procedure.
We also listened carefully to those who responded to the consultation. Many wanted safeguards for adults who face abuse, including those cases in which it might be the very people who care for the person who are accused of being the abusers. Regulation 4 addresses those concerns.
Regulation 5 provides information on instructing an IMCA. First, it specifies that the extension of the IMCA role requires the NHS bodies and local authorities to consider whether each eligible individual would benefit from the additional safeguard. In some cases, such as those when an advocate is already actively involved, the local authority may decide that an IMCA is not necessary. The extension of the role allows an IMCA to be instructed but does not require one in all cases.
Secondly, the regulation specifies that where an IMCA has been instructed, the NHS or local authority must take into account the information provided by the IMCA in making any relevant decision that results from a review of care arrangements or protection measures. This is intended to ensure that the views of the IMCA are properly taken into account when an important decision is made.
The regulations are part of a package of measures that include the 2005 Act itself, the general regulations, the code and the commissioning guidelines, which together provide the framework for implementing the IMCA service. Seven pilot organisations have been providing IMCA services, and they have been valuable to our understanding the extremely important role that the IMCA service will play. It will provide an important new statutory advocacy service targeting some of the most vulnerable people in our society. It will provide a new safeguard for vulnerable people, particularly when facing important decisions that affect their lives.
2.53 pm
Tim Loughton (East Worthing and Shoreham) (Con): I, too, welcome you to the Chair, Mr. Pope. This is the first time that I have served under your chairmanship and I am sure that it will all go swimmingly.
I congratulate the Minister on her elucidation of the regulations, on the 2005 Act itself, which met with widespread approval, and on the way in which the Government conducted the consultation. In this instance at least they appear to have responded to many of the concerns and points that were raised.
To aid clarification, I want to pose a number of helpful questions for the Minister to address. Will she elucidate on who responded to the consultation and whether she is happy that it received as broad a range of opinion and comment as possible? If she does believe that it was satisfactory, perhaps she might apply the same rules of consultation to other members of the mental health community when we assess the mental health Bill, originally abandoned in 2004, when it eventually sees the light of day in perhaps just a few weeks’ time.
The regulations extend the powers to care reviews and adult protection among others, but they do not impose a statutory duty to instruct the IMCAs in those circumstances. Is the Minister happy that they will be used appropriately? As they are discretionary powers rather than statutory requirements, and as it is being left up to people to decide what to do on a local basis, how will we monitor that they are being used as and when they need to be? I also understand that the Government aim to implement the IMCA service from April 2007. One thing that the Minister did not mention was the progress that they are making towards ensuring that that will be achievable by that date. How are the advocates being recruited and trained? Will they be fully prepared to take on that duty from April 2007, as she suggests?
The Minister also mentioned that the service will be available to people lacking mental capacity when they have no one appropriate to consult. It would be useful if she could elaborate on the appropriateness criteria. Somebody lacking mental capacity might have relations who, in normal circumstances, would be expected to act in place of an advocate but who might choose not to do so—they might be geographically unable to do so because they are at the other end of the country or in another country, or they may feel it is inappropriate for them to do so. How will the Government judge whether such people are appropriate when deciding whether somebody from the advocacy service should stand in their stead? There is a little confusion about how that will be qualified.
I have some practical points to make on the funding. The regulatory impact assessment contains some interesting costings about the estimates of running the service, which are based on about 16,000 people who have no family or friends and are apparently likely to require the service. Will the Minister confirm that the money that the Government are proposing to attach to the scheme is genuinely new money from the Department of Health and is not being raided from the mental health budget elsewhere within the NHS—that it is not a case of robbing Peter to pay Paul? Will she also elaborate on how the figures were arrived at on the basis of a static cost of running the service? For how many years is that likely to be guaranteed? Does she think that the client base will enlarge, particularly in the light of the 2005 Act and all its ramifications, as well as other mental health legislation that is coming down the pipeline?
Will the Minister also comment on the standards and competence for advocates? How will the standards be enforced? How are advocates to be suitably trained and monitored? There has been a big shortage of advocates and advocacy services generally for some time so it is reasonable to ask where they will be found and how the Government will ensure that they are up to the sufficient standard to ensure that they can provide the specialist service that they will be required to provide for people lacking mental capacity. Will the advocates be appointed by the courts or the trusts? Will sufficient numbers be ready in time to ensure that the service is up and running from April 2007? Is their geographical spread likely to be appropriate? How mobile are they likely to be?
I am sorry to weigh the Minister down with so many questions, but I am sure that there will be plenty of opportunities for in-flight refuelling from her expert team, whom I know rightly take great pride in the legislation.
A few concerns have been raised by some of the outside bodies concerned with mental health. The Mental Health Alliance has raised concerns that creating a statutory duty to provide the IMCA service may have an adverse impact on those advocacy services that are already provided. It feels that there is a danger that resources will be transferred from one budget to another and that the obligation to provide an IMCA will be met at the expense of other forms of advocacy support. Will the Government therefore make a commitment that non-IMCA advocacy services will continue to be provided and supported following implementation of the Mental Capacity Act 2005?
The mental health charity Mind raised the lack of commitment by the Government to implement national standards for the whole IMCA service. When the regulations were debated in another place, the Minister’s colleague, Lord Warner, was difficult to pin down on exactly which inspection body would be responsible for overseeing the IMCA service and benchmarking standards, who would be appealed to if a person is concerned that an advocate is failing to provide a satisfactory service, and, whatever that body is, exactly what its powers are.
It seems from the Lord’s debate that the Government have delegated to local authorities the job of co-ordinating IMCA provision in their areas and of ensuring that it is appropriate for local needs. Will the Government not retain some form of central database—they are usually keen on the concept—in order to make a proper evaluation of the service as it rolls out, and to oversee it properly? Would that not also be useful information for the expansion of advocacy to other groups, including people subject to the 2005 Act?
Finally, what about the need for an independent mental health advocacy service for the role in the mental health Bill? Will the service be available for those detained under the Mental Health Act 1983, either in its current form or in the whizzy new version that we hope the Minister will come to the House armed with in the not-too-distant future? We are greatly looking forward to that.
3.2 pm
Dr. John Pugh (Southport) (LD): It is an unalloyed pleasure to serve under your chairmanship, Mr. Pope. I thank the Minister for a lucid presentation of the story so far. As I understand it, sections 35 to 40 of the Mental Capacity Act 2005 create an obligation to instruct advocates in clearly defined circumstances. Section 35(1) allows the funding of the same, and section 41(1) allows, by regulation, the role of advocacy to be expanded on a funded basis. In essence, that is what we are endeavouring to do now, specifically in respect of accommodation and care and in cases of potential abuse and neglect.
As they stand, the regulations are entirely reasonable, but we might investigate which things are missing and perhaps need to be added. Two points have been made by Age Concern that are probably worth repeating, although I suspect that the Minister has a ready answer to them. The first is that the scope for further regulation still exists—the list of regulations is not complete—and that it is possible for local authorities to act beyond the regulations in providing advocacy. Age Concern would like that to be formally stated in statutory regulation, but I do not think that that has happened. Regulation 5, which makes a more general comment about the role of advocacy, refers specifically only to regulations 3 or 4—the variations in front of us—but I understand that the Minister may feel that that is unnecessary or, perhaps, in part cosmetic.
Age Concern has made the substantive point that deputies, who, of course, can be an alternative to advocates in certain circumstances, may in some cases be local authority deputies who have a financial interest in the outcome of providing advocacy. It has suggested that co-appointment should be encouraged, so that there is an additional advocate if a deputy in a representative capacity has a conflicting financial interest.
The Minister might wish to respond to those points, as, clearly, there are financial consequences of the regulations. The Government anticipate that advocates will be required for 16,000 cases, and the vast bulk of them—10,000—will be concerned with accommodation-related issues. There is an inherent conflict between the widespread use of advocacy and the laudable ambition whereby health authorities and local authorities husband their resources. One does not want to see that become institutionalised.
I have other general concerns, one of which is motivated by a piece of constituency casework. There will be no advocate when another person is reliably identified by a local authority as a suitable person who can stand in place of a statutory advocate. However, what if that other person’s status is not clear? I was involved in a case recently in which one sibling contacted me about their mother’s welfare. I pursued the case only to find that another sibling contested his right to do so and his interest in the mother. That situation may occur for health bodies and for local authorities from time to time. An advocate would be welcome in that situation, because they would be able, independently, to see through the unfortunate family backgrounds that surround such cases.
I have a general financial concern. I read in the attached literature that £6.5 million is to be devolved as part of the way in which funding is processed. I should welcome more detail about how exactly it will operate, because there may be a different pattern of usage from local authority to local authority. Some might work within narrow and confined bounds and others might be more generous with their provision of advocacy. If, for example, their advocacy goes beyond the Mental Capacity Act 2005 and the additional regulations before us to other desirable forms of advocacy, will it adversely affect their funding?
The consultation on the regulations before us, and presumably further regulations, has been difficult for the Department of Health. The consultees were not given clear preferences. The Department gave them six options, and it would be useful to obtain more data to find out the balance of preferences and where in percentage terms, people expressed their preferences. More detail would generally be helpful.
Finally, the Minister said that the regulations specify the circumstances in which advocacy may—not must—take place, provided other circumstances, such as the involvement of a court of law at some time, do not apply. However, there seems to be a slight difference in tone between the explanatory memorandum, which explicitly says that the regulations provide for additional circumstances in which IMCAs may—not must—be instructed, and the explanatory notes, which say that the regulations are an obligation. Giving somebody an additional choice, opportunity or right does not substantially alter one’s obligations.
Logically, the regulations seem to imply that given a variety of different circumstances, they would cover some but not others, such as decisions about protection and care, which might be made in the absence of advocacy or other representation. That scenario seems logically possible and consequent upon the regulations. For example, it is perfectly possible that a protection issue, covered by the regulations before us, which a local authority may invoke and use, could be ignored by another authority, with no advocacy provided.
It would be useful to track the variation of different local authorities and their behaviour towards the issue. Does the Minister plan to assess how the regulations will be used? They are in part permissive, and given permission, local authorities may behave differently, in which case we have a right to know when they do.
3.10 pm
Mr. Robert Goodwill (Scarborough and Whitby) (Con): I have two questions. The first concerns the appointment of an IMCA when someone is not immediately available to act as an advocate for their relative or friend. How hard will the health authority or trust try to find someone, or will the IMCA alternative become be the default when no one volunteers?
Secondly, the Minister may share my concern that if a panel of IMCAs is available to represent people, an IMCA who will be more compliant to the wishes of the health trust or local authority and who will not represent the awkward squad may be more likely to be appointed. Is it likely that IMCAs who tend to go along with the suggested course of treatment or care package will be more likely to be selected than those who may cause additional expense and initial difficulty? Perhaps IMCAs will find that they do not get much work if they do not go along with the course of treatment suggested by the local health authority.
3.11 pm
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