Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

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 national association.

  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 Practice?

  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 spoken—I have spoken personally—with 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 people—people 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 services—and 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 fund—social services departments and others—a 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 is—right up the front of the Bill—emphasising 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 this advocacy?

  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 later on?

  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 service users".

  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.

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