Examination of Witnesses (Questions 480-491)|
14 OCTOBER 2003
Q480 Mr Burstow: With respect, if
I can come back, I think the problem here is you are talking about
the dilemma of an institution, like a local authority, having
far more need than it can possibly resource. That is one issue
and that is a tension that, of course, should remain with you.
However, then there is the responsibility that this Bill can place
upon you of acting as the person who lacks capacity and taking
the decisions for them. How do you resolve having to act in their
best interests at the same time as acting in the best interests
of the council?
Mr Dixon: I think it is a conflict
of interest. It is better in many instances for us to come in
in an investigatory capacity rather than to have it on a long-term
basis. Sometimes, in default of anybody else, we have to step
Q481 Chairman: The situation that
you are now describing is one which is covered by common law.
This Bill, as we said earlier, puts into statute what is now under
common law. Will it make that tension that you describe easier
or harder to resolve?
Mr Dixon: I think it does make
it easier because it is about laying down further what it is that
is expected of us.
Q482 Chairman: And there would be
a legal framework for you to work within, would there not?
Mr Dixon: Yes.
Q483 Lord Rix: How would you see
yourself as intervening in the case of a person who is deemed
to have capacity but goes on making unwise decisions? How would
you protect that person and how would you protect the parent or
the carer if they reverse that decision from, say, a civil action?
Mr Dixon: I think that is a very
difficult question. Enshrined in this is the right for people
to make unwise decisions and I think that is very important because
who is to say what is a wise or an unwise decision. It is the
case that family disputes constantly centre around how people
spend their money, how they spend their time, children and adults
and so forth. We need to be very careful about how we step in
to second-guess other people. I think this is where we would come
back to this question of advocacy. Often we are swayed by very
pragmatic considerations and may miss out on some of the more
ethereal considerations that people want to take or maybe the
spiritual considerations that people would take into account.
Equally, families will support their loved ones in a certain way
but may be very anxious about the consequences of them exceeding
certain expectations or taking certain risks. I think we would
come back to the importance of advocacy in providing a statement
about what the individual thinks. This is not an area where things
can be cut and dried, it is an area which comes down to the individual
and their family.
Q484 Lord Pearson of Rannoch: One
accepts that, but surely one part of the answer to the dilemma
you have very honourably exposed, being both the executive responsible
for the money and also having to do your best for the mentally
incapacitated person, should be that the balance of who is appointed
as a deputy or an advocate or whatever should perhaps move more
towards the family and away from the professionals. That must
be different in every case.
Mr Dixon: Yes.
Q485 Lord Pearson of Rannoch: It
is only part of the answer.
Mr Dixon: I agree. I do not think
it fits well with any professional undertaking that role.
Q486 Lord Rix: This question arises
out of the blue. In Canada there has been quite a lot of discussion
about the title of a Mental Incapacity Bill. You have talked a
great deal about supported decision-making. Would you like to
follow the Canadians and perhaps change the title of this Bill
to Supported Decision-Making Bill?
Mr Collingridge: I have been influenced
this morning by hearing from the Department of Constitutional
Affairs, so that would be very difficult. We have not actually
discussed that matter.
Q487 Lord Rix: But to a certain extent
it would support your contention.
Mr Collingridge: It would go along
with those lines, would it not?
Q488 Lord Rix: Indeed.
Mr Dixon: As I understand it that
was the original working title of the Bill. No doubt it could
be changed in that way.
Q489 Mrs Browning: In these hard
cases you have to deal with and exercise your powers for people
without capacity how frequently do you come up against trust law
and does it help or hinder your ability to take decisions?
Mr Dixon: We do come across it
from time to time, but in my experience it is pretty rare in that
most people who we deal with do not have the sort of assets which
would fall within that ambit at all, but it does happen.
Q490 Mrs Browning: Does it help or
hinder you, trust law as constituted at the moment?
Mr Dixon: I cannot recollect any
occasion where I have experienced a legal problem on that.
Mr Collingridge: I would be very
happy to go back and ask my staff, but I do not know of any, it
has not come across my desk and I am the manager who manages the
Mrs Browning: In a way trust law is used
by people who do have assets in order to try and secondguess what
somebody will need later on and in a way it is very similar to
some of the arguments we have been talking about in respect of
Q491 Chairman: I think we have reached
the point now where we have some other witnesses to see. Maybe
you would be kind enough to write to us in some detail on that
last point. You have touched on it in your previous answers but
it would be helpful if you could write to us. We are extremely
grateful for your attendance. Thank you very much indeed.
Mr Dixon: Thank you.