Examination of Witnesses (Questions 440-459)|
14 OCTOBER 2003
Q440 Baroness McIntosh of Hudnall:
How would we write on to the face of the Bill the kind of language
that would prevent that from being possible?
Mr Collingridge: We have had some
thought about this since we saw this question and we are wondering
whether or not it is not the right question.
Q441 Baroness McIntosh of Hudnall:
You think of the question and I will ask it!
Mr Collingridge: We do not think
it is simply a question of tweaking a few words in a clause. Going
back to the earlier point about citizenship and advocacy, if that
is there then I think people will have more confidence that their
needs and rights are being met.
Baroness McIntosh of Hudnall: Maybe.
Q442 Lord Pearson of Rannoch: My
Lord Chairman, I am not quite sure whether my question should
come under the first question or this one, but I wonder if I could
put a question, speaking as a parent on behalf of the families
of the severely learning disabled, or people with a mental handicap
or intellectual disabilityhowever you choose to describe
it? I notice in your submission, MIB1040, under paragraph 2 showing
the five areas of involvement which you see social services departments
having, you do not actually mention liaising with families. As
I expect you are aware, thousands of families of mentally handicapped
people do feel they get bogged down and are not particularly well-helped
by social services. We have indeed, if I can just quote it very
briefly, a supplementary memorandum from one of our Scottish witnesses,
looking at the experience so far of the Scottish Bill. She says:
"Unfortunately, some of the practices of certain local authorities
have been viewed as bullying tactics by relatives and carers,
where situations of resistance arise, particularly as regards
where an adult should reside." She goes on to say "The
particular problem is when the family feels that the adult should
continue to reside in a care home setting but the local authorities
insist that the adult moves out to live in the community",
and she gives various examples. Do you accept that there has been
a problem in this area? How do you see the families of these people
being helped; perhaps their wishes being balanced in future with
those of the professionals in general? Or do you, when you refer
to service users and citizenship and advocacy, really feel that
a lot of these families are not very helpful and that their views
are not quite, perhaps, as accurate and professional as your own?
Mr Dixon: No. Firstly, I should
say that usually it is the parent who knows more about the child
and the needs of the child than any professional.
Q443 Lord Pearson of Rannoch: I agree.
Mr Dixon: It is the way in which
parents have fought for the needs of disabled children which has
begun to force the sea-change in public attitudes that I was referring
to earlier. In the time that I have worked within social services
I think we have come to the era of professionals being much more
humble than we were in the past, because we do not have any monopoly
on knowing what is right. I think the valuing people proposals
are very, very helpful in that way, and I think we are constructing
a new way of hearing what people say and responding to it. That
is, of course, service users but it is also families, particularly
when you are talking about disabled children who could, of course,
often be adults.
Q444 Lord Pearson of Rannoch: I am
grateful for that. Of course, a lot of the parents who are looking
after many of these people are now starting to die at a greater
rate. You would be quite happy to see parents and families becoming
deputies, providing that there were not obviously after Aunt Agatha's
Mr Dixon: Yes, we would.
Q445 Stephen Hesford: Can I bring
you back to what you were speaking about before because, speaking
for myself, I am quite confused by it? This Bill has a functional
approach and we have heard evidence that that is in fact a struggle.
What you seemed to be saying before was not a functional approach,
and it seems to do with the issue of human rights. If this Bill
was human rights compliant (a) would that not deal in part with
what you were speaking of before? The Scottish legislation, which
we have heard quite a bit about, does not deal with advocacy on
the face of the Bill, and we have heard that that functions satisfactorily,
certainly as far as the Scottish system is concerned. It does
not mention citizenship at all either, but it has a series of
principles. What is the difference between what you were saying
before, what we have got in front of us and what the Scottish
Bill does and how can you firm it upin terms of a clause
or something that we can get a grip ofin terms of speaking
about advocacy and citizenship? I just could not get a grip of
what you were in fact saying to us.
Mr Dixon: I think it is a question
of whether you see yours as being able to capture the sort of
shifts in public policy and ethics, rather than simply being functional.
I saw the way that the Children Act described a new definition,
as it were a contract between the state and families and children,
as representing a significant difference. I do not think this
Bill begins to approach that yet, and that is what I am sorry
for. I am not a legal draftsman, so I could not comment precisely
on how it should be put into effect, but I think that it should
be able to capture the changes in public policy that have taken
place in recent years and to, as it were, hand them across to
local authorities and others to begin to take them forward in
Q446 Chairman: If we did decide to
include the principles of the Bill at the beginning, which has
been suggested of course, that would help to meet your point?
Mr Dixon: It would indeed.
Q447 Mrs Browning: Can I explore
this a little further because I am rather in sympathy with the
case you are making. At the moment, and I include myself in this,
for those of us who are involved very much with adults with learning
disabilities and the sort of problems they come up against, one
of the biggest problems is that there appears to be no real statutory
framework against which one challenges. Ultimately, in case work,
much as one loathes to do it, one gets to a point where the advice
is to test it in a court. I am sure you will agree it is becoming
far more frequent now to challenge social service departments
in the courts on behalf of adults with learning disabilities.
Mr Dixon: Yes, indeed.
Q448 Mrs Browning: Do you see what
you are proposing helping to minimise that recourse to problem
resolution? I am hesitant because the resource implications of
it are enormous. However, at the moment the resource implications
are enormous because you are having to call expert witnesses across
the legal process, etc etc. Do you see that helping to minimise
the challenges through the courts?
Mr Dixon: Yes, I do. I think there
is a place for law in providing that framework and in prodding
local government to move in that direction. The resources that
are spent in this area in relation to the legal challenge, at
the moment, are significant but not overwhelming. It is, really,
the resources which are spent on poor quality treatment and services
for people with learning difficulties that are the real crying
Q449 Mrs Browning: I agree with you.
Mr Dixon: Having somebody in a
very expensive place inappropriately is bad for everybody and
bad for the public purse. Obviously, I speak from a very pragmatic
point of view rather than specifically from a legal point of view,
but I do know the help there can be in having a good framework.
Q450 Mrs Humble: I am not quite as
phlegmatic as either you or Angela Browning that this Bill will
actually help you. Anyway it goes back to Lord Pearson's point
about the role that parents have to play in this. I tell you why
I have one or two concerns, for two reasons. One, traditionally
social services has been in the risk business. Social services
push people as far as they can go, and for the group of people
that this Bill is concerningeither those who totally lack
capacity or, more importantly, those who have variable capacitythe
social worker temptation is always, always to push them as far
as they can go in making decisions on managing their own lives.
Yet parents get desperately worried about that. Many of the disagreements
between social services and parents are because the parents want
to cocoon that child as it becomes an adult and well into adulthood
and want them protectedwant them in the care home or nursing
homeand social services say "Actually, your adult
offspring can, with support, be in the community and should be
engaging with the community". So there is always that tension.
Specifically, this Bill makes reference to the fact that the person
with a variable capacity, especially, or even somebody who has
capacity and then is likely to lose it, may make decisions that
you or I disagree with. We have to accept that those decisions
are ones that we do not agree with. So will that not add to some
of the very difficult decision-making processes that social workers
have to go through? They already have an extraordinarily difficult
job to do but when they are having to deal with parents who, by
and largeand I am generalisingare very protective,
and are having to deal with people where they have to, because
of this Bill, acknowledge that neither the social worker nor the
parent may agree with those decisions, will this not, in fact,
make your job even more difficult? Tell me it will not.
Mr Dixon: I think people have
a right to make decisions which are independent of professionals
and independent of their parents. That is important, and we need
to ensure that they can do that. On the other hand, I think one
of the reasons that parents have difficulties with social service
departments and why they are anxious about protecting their children
is because they very often have little or no guarantee that they
are going to get services. If you have fought for services for
your child for 20 years against an unforgiving system which has
only allowed you services inch by inch, I think you get desperate.
As you get older you are worried about what is going to happen
when you are too frail to look after your child. I think it creates
a feeling of protection as opposed to risk-taking. I would not
want to criticise colleagues, but when saying that you can take
a risk with this child it is the parents who are going to be around
if it falls down; the social worker may have moved on or whatever.
I think it is much more about creating a partnership between us,
as social service departments and parents, in a mature way. I
think if we have a framework which enables us to do that it will
make our job easier, because we cannot be adversarial.
Q451 Huw Irranca-Davies: Can I ask
you to help me summarise the preceding discussion? In terms of
the Bill as a whole, as it is currently presented, and the rights
of the individualthe user of these serviceswhat
we have in the Bill is an improvement but it is not bold and ambitious.
Mr Dixon: Indeed so.
Q452 Huw Irranca-Davies: The Scottish
Bill, from what you were suggesting, would be an improvement even
further in terms of this clarification of the rights of individuals.
What you are putting to us is that you would like us to have a
step-change, in effect.
Mr Dixon: Indeed.
Q453 Huw Irranca-Davies: Which would
be way above what the Scottish Bill has and certainly what this
has at the moment.
Mr Dixon: That is indeed it. I
think the problem is that in the public policy of this country
we are moving fast on child care policy and it is very exciting.
In relation to older people there is great ferment about what
should happen and so forth. However, in relation to people with
disabilities it is in the "too difficult" box. There
is a tremendous amount of change in there, I think, waiting to
get out. Talking to service users and their parents, I think there
is a great opportunity to move things forward. It would encapsulate
quite a lot of what is beginning to be around in government policy,
which is very helpful.
Q454 Baroness Knight of Collingtree:
I do want to come back to the question of resources. I notice
that when you were writing on Clause 16, your second point on
that clause was "the extension of the powers to welfare decisions
is likely to result in additional demands on services which are
already at capacity." Now some of us, particularly those
who read in the newspapers of unfortunate cases where a child
somehow or other slips through the net, are only too well aware
that every social worker seems to have about 103 cases each, and
how on earth any more could be accommodated is something that
we are going to have to look at very hard, and you have drawn
our attention to it. Have you been able to make any reliable and
detailed estimates of what this would all cost in terms of extra
staff, extra money, training resources and so on? How will the
Bill be properly implemented unless a lot more is spent, and have
you any idea how much money that will be or where those resources
could come from?
Mr Collingridge: The short answer
to your question is no, we have not done the detailed work. We
have started in the last couple of months to talk to the Department
for Constitutional Affairs and Department of Health about what
the areas are. I think our response mapped out some of the issues.
In the last few weeks we have been looking at what the likely
demands through the adult protection system are, etc etc, but
we have got a very long way to go at this stage. So we are just
mapping out what are the various factors that we need to put into
the equation, and we have now identified groups of people that
can start to do that work.
Q455 Baroness Knight of Collingtree:
Am I right in thinking that the same people who will be called
upon to implement the welfare sections in this Bill are already
pretty well overworked as it is?
Mr Collingridge: You are quite
right. That is a major concern, and if the adult protection arrangements
that have started to come in start to bear down and you have this
as well, then, yes, there are lots of opportunities for increased
demands, and we do not know how we will meet those at the moment.
Q456 Baroness Knight of Collingtree:
Are you ready to try and bring in some regulations within your
own departments to make sure that certain sections of your department
are not going to suffer by having a sudden movement of social
workers away from them?
Mr Collingridge: One of the issues
is that there are not duties under this Bill for local authorities
to act under it. I think that is even the case at the moment with
adult protection, except for a more general duty. So you will
find, as you go around the country, very different responses to
the same set of policies. We have that at the moment with the
current Court of Protection arrangements. My authority in Hampshire
has quite a well developed system; John's next door, until recently,
did not do very much. I think unless there is adequate resourcing,
and it is going to have to come not from local taxation but centrally,
then I think authorities will decide probably not to implement
parts of this Bill effectively because they cannot divert resources
from, for example, facilitating early hospital discharge.
Q457 Baroness Knight of Collingtree:
Of course, there is not a lot of point for us in this Parliament
passing Bills that have sections within it which cannot be implemented,
which might be a difficulty. Since you raise the question of the
Court of Protection proceedings, this does really raise another
cost implication. Do you think that the costs of that should be
met from central funds, and do you think that Legal Aid should
be called in to help with the cost of other parties?
Mr Collingridge: We do think that,
yes, local authorities should be assisted with the legal costs
of doing that. We have had a look, for example, in our own authority
about the costs of one case, and if you get a complex case it
is £7,000 to prepare it and, perhaps, £15,000 or more
to go through the full legal system. We have got two of those
at the moment, and that is more than the cost of a social worker
each year. When you start to look at the implications they are
quite significant and I do not think that local taxpayers can
be expected to meet all those costs.
Q458 Baroness Knight of Collingtree:
It certainly is emerging that you are as concerned as we are about
this matter. Finally, could I ask you whether in preparing the
Bill the Department for Constitutional Affairs has consulted either
adequately or inadequately with the local authorities on this
Mr Collingridge: They have consulted
with us. It is not adequate yet. We have had some initial discussions
with them about the resource implications. At the end of August
they issued a request to map out the information implications
in terms of publications, and we found that perhaps up to 50 publications
might need to be alteredfive or six substantially. In terms
of anything else we have not really begun the process.
Q459 Baroness Knight of Collingtree:
Is it recognised that this is only the beginning?
Mr Collingridge: Yes.