Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

Examination of Witnesses (Questions 544-559)


15 OCTOBER 2003

  Q544  Chairman: Welcome. Thank you for attending and for your written evidence. This session is open to the public and it is being recorded for broadcasting. There will be a transcript of the evidence which will be published with the report and you will be given a chance to check it for accuracy. If we are unable to go through all the questions or if there are any other points which arise in the discussions which you wish to address, perhaps you would be kind enough to write to us after the meeting. We are not here to write a White Paper on mental incapacity, we are here to deal with a draft Bill and all our questions are structured around the structure of the Bill. Perhaps you would like to start by introducing yourselves.

  Mr Clements: I am Luke Clements, a solicitor. Perhaps I will let my colleagues introduce themselves.

  Mr Raymond: I am Peter Raymond, a solicitor from Tunbridge Wells.

  Mr Baker: I am Niall Baker, a solicitor from Sheffield.

  Ms Chapman: I am Vicki Chapman, Head of Law Reform at The Law Society.

  Q545  Chairman: Thank you very much. What is the value of the draft Bill beyond putting into statute what is already encompassed by common law?

  Mr Clements: I think we would have to answer that by saying that it is in facts two questions. The first is it implies that the common law already deals with many of the issues in the Bill which we do not believe to be the case, but it also suggests that the common law is an adequate substitute for legislation. The Law Society believe that in general that is not the case. There may be situations where is it is better to leave a matter in the common law—perhaps a fast moving or particularly controversial area which may be the case in parts of this Bill. In general we believe that there are very strong policy grounds for having in statute, principles that may be distributed through the common law. I deal a lot with the poorer end of the market, if I might put it that way, with social workers and health care professionals, with people who do not have money but have particularly serious problems and in my view 95% or over of social workers, health professionals and carers have not the slightest idea what the common law situation is, they do not know what the principles are, and if you were to say the principles are "best interests" then in my view they would think best interests is a paternalistic view—it is what we often call the lettuce and the jelly situation.

  Q546  Chairman: Perhaps you could explain that, please.

  Mr Clements: If you have a client who has a severe learning disability or is confused, what is in their best interests, is it lettuce or is it jelly? Many people would say lettuce is in their best interests because it is good for you and what have you, but if this person is an adult of some age they may prefer jelly, and it is a hugely important issue. I think what we want to get across is how important language is. I know it may be an area where one says this is just semantics, but it is incredibly important to get across to the general public that this is a Bill about rights, rights for people with mental incapacity and it is not the "state knows best" or the "carer knows best". This is empowering people with limited capacity and therefore we need to have principles, not best interests and those principles need to be set out in the statutes so people know what they are, very much like the Children Act transformed what was a very uncertain position in the mid-1980s. In the mid-1980s the common law dealt with the principles of children and many very fine judgments have been made regarding what the principles should be, but most professionals were in the dark on that. The Children Act transformed that and now most professionals, if you say to them "what is the situation?"—would say "the check-list".

  Q547  Chairman: The check-list in the Bill of best interests, are they the same as those principles or do you want the principles set out?

  Mr Clements: We welcome the categories that are called best interests. We have severe reservations about calling them "best interests" because of the jelly and the lettuce phenomenon.

  Q548  Chairman: What is the term you would use?

  Mr Clements: We would call them "general principles", very much along the Scottish line and I think we would have to say that these general principles would not just apply to one category of people who have got mental incapacity, they would have to apply to all human beings and they must be compatible with the European Convention. Therefore they must start from the "no order" principle—which is that the state should not interfere in people's lives unless there is strong grounds, not on the balance of probabilities. So there is a presumption in terms of "no order" and there should be the "least restrictive interference".

  Q549  Baroness McIntosh of Hudnall: You said this is a Bill about the rights for people with mental incapacity. I wanted to ask you whether you mean it should be a Bill about rights for people with mental incapacity or it is one in its present condition. It was put to us yesterday by witnesses from the Association of Directors of Social Services that the danger that the Bill stood in was that if left as it was it might become a charter for carers and service providers rather than for service users.

  Mr Clements: I have to say at the very outset that The Law Society very warmly welcomes this Bill and we do believe that it is an incredibly positive statement. As we give evidence and when we talk amongst ourselves we must keep reminding ourselves of the fact that we are in favour of this Bill but we do have certain reservations about it. The biggest reservation we have is the absence of public law protection for people with limited or no realistic mental capacity. I think the Bill is about the rights of incapacitated people, but it is a major concern to us that it does not have more protection for people. In my area of expertise, which is people who do not have financial assets but who have capacity difficulties, I think that abuse, sexual and physical, is endemic, it is a very wide situation and it is not discussed. My colleagues, Peter and Niall, would say that financial abuse is probably endemic and therefore there is an absolute need for protection, but we do welcome this Bill and we do strongly congratulate the Government or whoever for bringing these things forward.

  Q550  Chairman: Is the implication of what you are saying that if the protection is not in the Bill then the abuse, if it is not affected by the rest of the Bill, would go on?

  Mr Clements: I fear that the abuse will go on whether it is in the Bill or not, but at the moment I am continually being confronted by carers and social workers who are aware of the abuse, but the police do not think there is enough evidence and they feel powerless. There is a procedure that the High Court is developing and the Lord Justice Sedley said the need to develop it was because Parliament has been silent and there is a need for somebody to do something, but that means going to the Family Division of the High Court and that is very expensive. We are very concerned about this situation.

  Q551  Baroness Wilkins: Do you feel that if best interests is replaced by your principles statement then that would meet the fears of many of the user groups who say this as a very repressive measure at the moment? Do you think one could then sell it and that it would be seen as a Bill that was protecting their rights rather than diminishing them?

  Mr Clements: I think so. I think that words are incredibly important in this area and I think principles is really fundamental because I think most professionals will only know one thing, "best interests" and it connotes my headmaster talking to me rather than someone who is empowering me. I do not think that would address all of these issues. The general authority is something that I think many self-advocacy organisations will have reservations about and I think we would have reservations about that unless there is some counter-balancing remedy for abuse. So I think it would be twin-fold, it would have to have the general principles which would have to be largely along the Scottish model of "no interference" and so on and also some powerful remedies such as anti-abuse and probably advocacy, including self-advocacy.

  Q552  Baroness Fookes: Would you still have objection to the term best interests if it was much more clearly detailed what is meant in terms of the principles and what should inform it?

  Mr Clements: I am sorry to say we would.

  Chairman: I am afraid we will have to stop for a few minutes while we have a Commons vote.

The Committee suspended for a division.

  Chairman: Perhaps I could just ask Baroness Fookes to repeat her question which you had just started to answer.

  Q553  Baroness Fookes: You obviously do not care for the best interests principle. Would you be more accepting of it if it were hedged about with general principles and very much more information as to how it is to be interpreted?

  Mr Clements: There are two issues that you are asking me to address. We think words in this area are very important because there are six million carers, there is hundreds of thousands of social and health care professionals and if and when, we hope, this Bill becomes law they may get a bit of training on this but it will be rudimentary and something like a phrase best interests will stick and we do not think that that is right at all. We believe there are principles that should inform and empower. We support those principles that are under the heading best interests in this Bill but we would add to them particularly the two that I have mentioned that are in the Scottish Bill, which is (a) no intervention unless it is clearly demonstrated to be to the advantage, so the no order principle—

  Q554  Baroness Fookes: To the benefit?

  Mr Clements: Yes, quite. Secondly, that any intervention should be the least restrictive intervention—both of which flow from the Human Rights Act anyway.

  Q555  Mrs Browning: You have made clear your support for the Scottish legislation in terms of general principles, is that correct?

  Mr Clements: Yes.

  Q556  Mrs Browning: You think we should look again at that in terms of this particular proposal in the Bill.

  Mr Clements: Yes.

  Q557  Mrs Browning: Why is it that you feel one should distinguish between individuals with an acquired mental impairment and those that are born with impaired capacity given that the draft Bill requires every assessment of capacity to be time and precision specific?

  Mr Clements: That is a very good point. It may be that in our submission we did not express that as elegantly as we ought to. Again, words and meanings have particular importance here. We have a perception that some aspects of this Bill have been misconstrued by certain sections and one of them relates to the fact that we are dealing with two groups. In my opinion one group has effectively no mental capacity on significant decisions and the other group who have limited capacity, who could make decisions on certain issues—and with assistance and encouragement could make more.

  Q558  Mrs Browning: Just tell me which category you are putting them into. You say one group has no mental capacity. Which group are you saying has no mental capacity?

  Mr Clements: I am saying on certain issues some people would have effectively no mental capacity, say an elderly person with advanced Alzheimer's disease. In that area with a progressive illness one might have problems. A younger person or middle aged or older person with learning disabilities may have limited capacity on certain areas and on all areas would have quite a lot to contribute towards a decision. These two groups are inevitably dealt with in this Bill. The group that is capable of self-advocacy to a degree is feeling that they are being dealt with as though they have no capacity at all. We were trying to express in our submission that these are separate categories, of course they mesh into each other and somehow there would have to be a mechanism to explain that they would have to be dealt with differently because the principles would stack up differently for both of them and it is that merger of these two groups that has perhaps caused some of the disquiet.

  Q559  Mrs Browning: I am still not quite clear in my mind why you differentiate between acquired impairment and those who are born with it. When a child is born with a learning disability, for example, there will be some people who will be on the spectrum and although they are born with a learning disability and will inevitably die with a learning disability, in between there are all sorts of situations that can improve their ability to contribute towards decision-making. For example, there is the technology that is used for people without any speech or hearing and things like that and the support packages that can make a huge difference to someone's ability to live independently or not, and resources has been a big issue for us in terms of whether what is deliverable has really got the resource base to it. I am still not quite sure why you differentiate between born and acquired.

  Mr Clements: I think that is the inelegant bit in our submission.

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