Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

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 in.

  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 receivership unit.

  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 this Bill.

  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.

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003
Prepared 28 November 2003