Examination of Witnesses (Questions 426-439)|
14 OCTOBER 2003
Q426 Chairman: Thank you for your
written evidence, which is very helpful, and for coming today.
As you know, the session is open to the public and it is being
recorded for broadcasting. In fact, we should be on the Parliament
Channel at six o'clock on Sunday evening, if you are interested.
There will be a verbatim transcript of the evidence which will
be published with the report, and you will be asked to check the
text of the transcript for accuracy. If there is a division in
either House then we shall adjourn, and there should be a note
on the table of the relevant interests of Members in this Bill.
As I have said to all the witnesses, if we are unable to reach
all the questions and if you would like to respond in writing,
or, indeed, on any of the points that arise in discussion, please
write to us. We are required to report on the draft Bill. We are
not asked to report on a White Paper on mental incapacity, so
that is why all the questions are structured around the Bill.
If you would like to introduce yourselves?
Mr Dixon: I am John Dixon. I am
Director of Social Services in West Sussex and I am Chair of the
Disability Committee of the Directors of Social Services, the
Mr Collingridge: My name is Graham
Collingridge, I am County Manager for Mental Health with Hampshire
County Council, and I am on the ADSS Mental Health Strategy Group.
Q427 Chairman: As you know, there
is already a framework of case law which governs the area of mental
incapacity. How does this Bill make things better? Also, has the
consultation between the department and the Directors of Social
Services been adequate? Are you confident that further consultation
over the Codes of Practice, which will be very important, will
be adequate? The final part of this question is, do you feel there
is enough in the Bill or is too much being left to the Codes of
Mr Dixon: I think the first thing
that I would like to say is that I think a lot is being left to
the Code of Practice at the moment. We feel that there has been
the beginnings of consultation between the department and stakeholders,
including ourselves, and we have appreciated that this is a novel
approach to the construction of this Bill and we have been keen
to respond to that. However, on the whole we think that we are
not yet speaking in the same language, so that communications
to us have not been direct and there has not been the use that
there should have been of the Department of Health channels for
talking to chief executives and others. We have made those points
and we hope that that is going to be rectified in terms of the
type of communication. We have had, I think, a good meeting of
minds in the discussions we have had. On the larger point, I think
that there are aspects which could have been brought out significantly
further in this Bill than were. Those are things that from the
social services' point of view we would particularly be able to
comment on, and we have spokenI have spoken personallywith
our service users who have very strong views about this. So although
I think the Bill is beginning to move in the right direction there
are other opportunities that could be taken to take things further
because it needs to complement national policy in this area, particularly
around issues like valuing peoplepeople with learning disabilities.
It is important to hear from service user groups about what the
implications of the Bill will be for them, because there are many
people who would say, and we would endorse that, that it could
be seen as a charter for carers or a charter for social workers
rather than a charter for service users. Does it adequately consider
the needs of service users? Does it signify the sort of major
shift that I think has been seen in public policy over the last
few years, both under this Government and the last one, about
the expectation of what social services should be able to deliver
for service users in the same way as the Children's Act signified
a fundamental shift of approach and is still regarded as at the
cutting edge of public policy 14 years on? My feeling is that
this Bill goes a distance but in another five years' time could
well be seen as outdated because it does not take forward adequately
the notion of citizenship of people who are vulnerable. For example,
we say there is no mention of the word "advocacy" in
it. Without advocacy people cannot adequately speak for themselves.
We, the social workers, would not presume to speak for people
who have mental impairments and we think that lawyers and others
should not do either. So we think it is a step but it needs to
go significantly further if it is really going to enhance the
citizenship of these people.
Q428 Chairman: Surely we are not
going to wait another five years if these things are understood
now? Would you recommend that we should put them into the Bill?
Mr Dixon: Yes.
Q429 Chairman: How would that be
done? By extra clauses? What is a specific example?
Mr Dixon: I think it is about
a shift more towards enabling people to be able to speak for themselves.
There are certain presumptions against people being able to speak
for themselves or with people who will be advocates for them.
Q430 Mrs Browning: Can I ask you
how you are seeing the role of the advocate in this respect? Is
it somebody who is independent, not a named social worker but
somebody quite stand-apart who is answerable to the department
that has the resources? That is a dilemma for advocates who are
also the named social worker.
Mr Dixon: It is absolutely essential.
In this context I would not describe certainly a social worker
nor even indeed a legally qualified person as an advocate; we
are talking about somebody who is completely outside of anybody
who has control over resources. That is absolutely paramount.
It is very likely they will be from a voluntary organisation.
That is the normal way in which we work.
Q431 Mrs Humble: There is a later
question about resources for advocacy and I do not want to trespass
upon that area, but there are two issues here. One: should there
be a national advocacy service just to complement the clauses
and the elements in this Bill where advocacy may be of some use?
Or are you looking at enhancing the development of local advocacy
servicesand they are patchy? I declared an interest as
regards the Blackpool advocacy, and I know the excellent work
that Blackpool advocacy services does do. Many of the local advocacy
services have time-limited funding to undertake specific projects.
Hopefully, if this draft Bill becomes legislation, it will go
on rather more than five years and for some time. Are you envisaging
a national service that people can fall upon to make sure that
this Bill is properly implemented, or would you still be relying
on the local services and that patchy network of local services?
Mr Dixon: I would be expecting
to see national standards and national expectation that advocacy
is available which requires funding. At the moment, we do fundsocial
services departments and othersa significant element of
advocacy. I would not necessarily go so far as to say there should
be a national advocacy service because that could be a pretty
unwieldy beast and may not actually have the sensitivity to local
circumstances that we would like to see. I would expect that there
would be an expectation that service users should have access
to advocacy. It should be a right, particularly in these circumstances.
Q432 Mrs Humble: You were talking
earlier about your concerns on behalf of the ADSS. One of the
issues with regard to this Bill is that there has been a lot of
concentration on the medical elements of it and the role of clinicians
and what happens when an individual lacking mental capacity goes
into a hospital. Of course, many of the people with whom this
Bill is concerned will, as you have said, be capable of communicating.
What more, if anything, can be done to emphasise that point, and
the fact that the legislation is actually looking at that much
wider group who are in the community cared for either on an informal
basis or through statutory agencies like social services?
Mr Collingridge: One of the things
we are wondering about isright up the front of the Billemphasising
that people with mental incapacity or possible incapacity are
citizens, and have that right up front, along with duties to promote
citizenship. We know there is a lot of concern from, for example,
people with learning disabilities that they will lose the rights
that they have currently just won through Department of Health
policies like valuing people and the national service frameworks
for people with mental health problems. I think perhaps right
at the very front of the Bill, to make that first point very,
very clear, and also in the Codes of Practice, that we are promoting
individual civil liberties. We were very heartened this morning
to hear Lord Filkin talk about the new role of the Department
for Constitutional Affairs and how that is what he wants to see,
promotion of rights and civil liberties in the 21st Century, and
not just making the current system work better. There should be
more of a shift in the Bill on that emphasis.
Q433 Chairman: If the Bill states
there is a presumption of capacity unless proved otherwise, that
is the same as every other citizen. Is that not enough?
Mr Dixon: I have worked in social
services for a long time now and we have seen a sea-change in
the way we need to relate to people with vulnerabilities. It is
not just enough to say that they are citizens like anybody else
and therefore they need, as it were, to exercise their rights
like anybody else. People need assistance in order to explain
what they want to see happen and assistance in realising those
life choices. We need to make a very active reaching-out in order
to enable people to do that. It is a qualitatively different approach
and it is remarkable what people can do if we do reach out to
them in that way.
Q434 Lord Rix: You are saying you
would like to see provision for advocacy at the beginning of the
Bill. Is that what you are saying?
Mr Dixon: Yes.
Q435 Lord Rix: If so, how are you
going to provide the additional resources necessary to provide
Mr Dixon: The question of resources
is something that we are going to need to come to. It is not mentioned;
it is regarded effectively as being cost-neutral, I think, in
the way this Bill has come forward. We feel very strongly that
it does need to be resourced. If it is going to produce qualitative
outcomes, different outcomes, for people then it is going to require
a different level of resourcing. One of the key areas is not within
social services but, as I say, within the resourcing the voluntary
organisations will need in order to help people with incapacities
to become fuller citizens.
Q436 Lord Rix: Do you mean it would
be similar to Section 64?
Mr Dixon: Indeed.
Q437 Baroness Fookes: You have stressed
the importance of advocacy services. Could you have a stab at
the kind of clause that should be added to the Bill, if not now
Mr Dixon: Certainly, yes. I would
not want to venture to do that at this stage, unless Graham has
Mr Collingridge: I am not going
to now, but we would be delighted to assist you.
Q438 Baroness McIntosh of Hudnall:
Going back to your earlier remarks, you said you thought the Bill,
as it stands (and I do not think I am misquoting you) "could
be seen as a charter for carers or service providers rather than
Mr Dixon: Indeed.
Q439 Baroness McIntosh of Hudnall:
You are implying in that that the presumption in favour of capacity
is not, amongst other things, strongly enough worded. Can you
give us any indication of how the wording could be better constructed
to strengthen the idea? If we do not do that with the Bill, what
dangers do you think those who are intended to benefit from it
will be in as a result?
Mr Dixon: Shall I take the second
one first? Can I say the good thing is that it confers upon carers
and social workers the ability to act in ways that previously
might have been seen to be illegal. This is seeking to remedy
that and it is important that that should be addressed, because
otherwise people will feel vulnerable when they are acting in
people's best interests. That is at the heart of the Bill. The
problem is that it could, in the wrong hands, be tipped in another
direction. You or I, if we were walking down the road and we looked
a bit weird or we were behaving a bit weirdly, could be set upon
by somebody with a general authority and taken in hand, or, more
likely, one of our children. That is an extreme case, but it potentially
is open to that degree of abuse. Vulnerable people, people with
learning difficulties and others, are quite open to being coerced
by people around them. That is what we are concerned about.