New Clause
27
Amendment
to section 40 of Mental Capacity Act
2005
‘(1) In section 40 of
the Mental Capacity Act
2005—
(a) in paragraph
(a) after “P” insert, “other than a donee for
property and affairs of P acting in a professional
capacity”,
(b) in paragraph (c) after
“P” insert, “other than a deputy who has been
appointed by the Court for the property and affairs of P in a
professional
capacity.”,
(c) in
paragraph (d) after “P” insert, “other than
a donee acting in a professional
capacity”’.—[Angela
Browning.]
Brought
up, and read the First
time.
Angela
Browning:
I beg to move, That the clause be read a
Second time.
The aim
of new clause 27 is to amend section 40 of the Mental Capacity Act 2005
to ensure that the relevant bodies are required to appoint an
independent mental capacity advocate if an attorney or deputy has been
appointed solely to manage the property and financial affairs of the
individual concerned and if there are no suitable family members to
consult. In another place, on 29 January, Baroness Ashton indicated her
agreement:
“I
reassure your Lordships that deputies who have been appointed in a
professional capacity purely for the purposes of property and affairs
would not, under the Mental Capacity Act, have the authority of the
court to take decisions which lie outside the scope of “property
and affairs”. These deputies will not have the authority to help
or represent a person where decisions are being considered concerning
serious medical treatment, care moves or adult protection. Therefore,
if no other family or friends are able to support and represent the
person without capacity in making decisions on these issues, the person
will be entitled to an independent mental capacity
advocate.”—[Official Report, House of Lords, 29
January 2007; Vol. 689, c.
110.]
Paragraph 10.71 of the
code of practice
states:
“The
Government is seeking to amend the Act, at the earliest opportunity, to
ensure that, in such circumstances, an IMCA should always be appointed
to represent the person’s views when they lack the capacity to
make decisions relating to serious medical treatment or long-term
accommodation moves.”
I
understand that the Government are seeking to amend the 2005 Act on
that matter at the earliest opportunity. This seems to be that earliest
opportunity; I am disappointed that the Minister has not tabled a
Government amendment and that I have had to table my new clause. I
would be grateful if, as we discuss this final new clause, the
Government gave a positive and glowingly supportive
response.
Ms
Winterton:
The hon. Lady is extremely persuasive, and we
shall return to the issue on Report. I cannot accept the new clause
because we want to consider certain technical issues. However, we
certainly wish to return to the matter and I can be encouraging and say
that her case is convincing, as was that made in the other place. I
hope that she will withdraw her new clause. I shall keep in very close
touch with her about any amendment that we bring on
Report.
Angela
Browning:
I am absolutely delighted. The Making Decisions
Alliance, which has done a lot of work on that aspect of the Bill, will
be equally pleased at that positive response from the Minister. I beg
to ask leave to withdraw the
motion.
Motion and
clause, by leave,
withdrawn.
Ordered,
That certain written evidence
already reported to the House be appended to the proceedings of the
Committee.—[Ms
Winterton.]
Question
proposed, That the Chairman do report the Bill, as amended, to the
House.
Ms
Winterton:
I am sorry, Mr. Cook; you look a bit
disappointed at my rising. I want to give you immense thanks for the
marvellous way in which you have controlled our proceedings. All
Committee members would like to thank you, Lady
Winterton—and Miss Begg, who chaired our proceedings on
one occasion. The Committee has been very lively and generally good
tempered.
Tim
Loughton:
Not
always.
6.45
pm
Ms
Winterton:
Mostly good tempered. I am upset that the hon.
Member for Daventry is not here because I was reminiscing about his
remarks on sex addiction. However, not only sex addiction, but the
difference between chinchillas and scintillas was raised at some point
in the proceedings, and this afternoon we have had the virgin
amendments.
Seriously,
I thank all members of the Committee for good, well-informed debates
that have demonstrated the real interest of all parties in the
issue.
Dr.
Gibson:
I, too, congratulate all three Chairs of the
Committee. I am sure that there will be a further debate on the issue;
it has not gone away for ever and the arguments will return. Any
meetings that people have heard about next week remain a mystery to me.
Obviously, all sorts of things go on in the ether while we are
incarcerated in this room, but people should not believe what they see
on their phones and text messages, as the illustrious Chairman pointed
out.
Ms
Winterton:
I suspect that my hon. Friend might be
referring to a meeting that has apparently been organised in his name
for next week. I suggest that he takes up such things with the House
authorities or the Speaker.
I put on record my appreciation
of the large team of officials who have worked not only during
proceedings on the Bill, but for the past nine years on this issue.
Their patience is extraordinary and they have done a good job. I hope
that all hon. Members will join me in saying how professional the
officials have been. [Hon. Members: “
Hear, hear.”] They have been more than willing to talk to
Opposition and Labour Members about issues relating to the Bill. I also
thank the Clerks to the Committee and everyone else who has assisted us
in our considerations. I am sure that members of the public in the
Gallery, who have sat gallantly through the proceedings, will agree
that, although there have been disagreements, some of which remain, we
have had thoughtful debates on a wide range of
issues.
I particularly
thank Labour Members for their rapt attention—they have been
marvellous. Of course, I also thank our Whip, who has tried to ensure
that we progressed gently through our discussions and, where necessary,
examined the Bill in detail while ensuring that we got to the end
having properly considered all hon. Members’ amendments. I thank
everyone who submitted memorandums to the Committee and the Opposition
spokespeople who have made some constructive comments that I hope have
been useful in clarifying public understanding of the Bill.
It has been an honour and a
privilege to serve on the Committee, under your chairmanship,
Mr. Cook, and that of Lady Winterton and Miss Begg. I am
grateful for all the support that we have been
given.
Tim
Loughton:
Allow me to tantalise your indifference for a
new more seconds, Mr. Cook, following the Minister’s
Oscar performance. I echo her thanks to you, to Lady Winterton and to
Miss Begg for chairing this difficult and complicated Committee during
the past three and a half weeks. It is particularly important to thank
you for the additional work that you have had to undertake in vetting
no fewer than 70 submissions that will form part of the
record. Written submissions are part of the new format Committee
procedure, and this is the first such Committee of which I have been a
member. A lot of extra work is involved for hon. Members in reading the
submissions and for yourself in reviewing them beforehand. The task has
been done exceedingly effectively, and the swiftness with which you
have dealt with them so that they could be scrutinised is greatly
appreciated.
I offer the
Opposition’s thanks to the Clerk, who has been extremely helpful
in scrutinising some of our amendments, and who has made some helpful
suggestions as to which might be looked upon more favourably by you,
Mr. Cook. Dr. Benger has been of great assistance in that. I
thank my hon. Friends—particularly the hon. Members for Tiverton
and Honiton and for Daventry, who, in the nicest possible way, are old
lags when it comes to Committee work. With their Mental Capacity Act
hats on they have brought enormous expertise to the Committee. My
thanks are also due to my hon. Friend the often highly animated Member
for Broxbourne, who has put his interest in mental health to good
effect in the Committee, and to my hon. Friend the Member for Rochford
and Southend, East, who is now no longer a new clause virgin and who
tempted the Minister but was ultimately let down, disappointed and spat
out by her. What a metaphor that is for the relationship between the
Government and the electorate at the moment.
Nevertheless,
it has been good to have the engagement of the Labour members, all but
one of whom contributed to our proceedings. They have brought a great
deal of expertise and experience to our deliberations. The subject of
the Bill is one in which we all have a genuine interest, and Labour
members share many of our concerns. It was interesting to see that they
all—without exception—turned out to be Government
loyalists who voted for the Government, such was either the power of
persuasion of the Minister or the knowledge that the prospect of a
reshuffle under the forthcoming new regime is looming,
perhaps.
I also thank
the Hansard writers, who are probably going absolutely
berserk.
Finally, we
are all greatly looking forward to the various audiences with Rosie
that have been promised. No doubt that Jean and Ruth and Mary and the
various other imaginary characters that the Minister has conjured up
during our deliberations will also be invited.
We have had an interesting
experience. I fear and hope that this will not be the last that we hear
of the Bill because many contentious decisions have been
taken that many of our colleagues both in this and in another place will
seek to overturn at the appropriate time.
Dr.
Pugh:
May I echo the sentiments that have been expressed?
I thank you, Mr. Cook, the Clerks and everybody who assisted
in making the Committee the rational basis for discourse that it has
been. We have achieved something. We lowered the temperature of the
debate, which has been helpful because it was about a difficult
subject. We have probed all of the key areas, which was important
because none of us wants the legislation to be decided by parliamentary
ping-pong.
If at the
end of the day the battle lines are a little blurred and alliances have
shifted, fundamentally, that will not be a problem for the sufferers.
They are the main aim of the legislation, not our various campaigns and
positions.
On a
personal note, I mentioned last Thursday a constituent of mine whose
letters —he wrote to me regularly concerning all sorts of
issues—reflected his mild paranoia. I said last Thursday that I
was stalked
by that individual, and that he would be in my weekend surgery. I could
not see him because I did not have time—I was talking to an
Afghan chieftain, as one does.
Dr.
Gibson:
In Stockport?
I have with me here the
contents my constituent sent to my letter box over a period of one and
a half weeks. On serious reflection, here is a person, one of a hundred
or probably thousands, who is completely bypassed by the legislation
that we have been talking about. Such people are not bad enough to be
sectioned, but they are not insightful enough to seek any help. They
are not covered by any provision or legislation. Our debate has been
constructive and forward-looking, but there is an enormous task to be
done apropos mental health that has nothing to do with the
Bill.
Question put
and agreed to.
Bill, as amended, to be
reported.
Committee
rose at four minutes to Seven
o’clock.
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