The
Committee consisted of the following
Members:
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
persons 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
regulationsthe general regulationssubject 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 Government have run a
number of pilots in certain areas. How do they intend to evaluate the
efficacy of this service after it has been running for a year and more?
How will they publicise the service?
Clearly we are looking at a particularly socially excluded sector of
society, and it is important that we go beyond normal measures to
publicise the availability and the parameters of the service. Perhaps
the Minister will explain exactly how the people who most need it will
get to find out about the availability of the IMCA service.
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 sothey 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
NHSthat 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 Ministers
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 Lords 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 databasethey are
usually keen on the conceptin 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 existsthe
list of regulations is not completeand 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
4the variations in front of usbut 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
them10,000will 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
persons status is not clear? I was involved in a case recently
in which one sibling contacted me about their mothers 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 maynot musttake 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
maynot mustbe 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 ones
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