Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

Examination of Witnesses (Questions 640-645)


15 OCTOBER 2003

  Q640  Baroness McIntosh of Hudnall: So you would expect to see an appropriate model in a code of practice underpinning the legislation?

  Mr Clements: Yes.

  Q641  Baroness McIntosh of Hudnall: You said you felt that the question about more than one person with lasting power was more complex. Can you just unpack that a bit?

  Mr Clements: All I can say is that in preparing this, we had quite a large group of lawyers and the one who was very strong on this point is not present. I did not understand the point, but I am not an expert. It is something that we might deal with in written submissions.

  Q642  Baroness Barker: This question is about the advocacy service and the status of them. I am professionally a very big fan of the advocacy service, but I wonder how it is possible to ensure that an advocacy service is not a sort of second-class service. I would like you, perhaps not now, to address for me what happens when a client has an advocate and it is a community care financing case and they are put against the local authority solicitor. What happens then? Also if you were to write to the Committee, I would like you to say a bit about the distinction between lawyers who are bound by client confidentiality and the advocacy role.

  Mr Clements: I have written a very good book on the subject and I also run a postgraduate programme in Warwick dealing with this particular issue because there is no simple solution. I think what one has to remember is that confidentiality is not an absolute—it is an issue which can yield in certain situations (basically a qualified right) and although the presumption is in favour of confidentiality, it has to give way at certain stages. It is a hugely complicated issue in a fairly fast-moving area because of the Human Rights Act. I am very happy to send you a copy of my book!

  Q643  Chairman: We touched on this earlier, the question of public law protection. The Law Society suggest that the Draft Bill should impose duties on local authorities and the NHS to investigate the cases of suspected abuse of adults who lack capacity. They further suggest that a Mental Health Commission should be created to oversee the Public Guardianship Office and the local authorities. If we were not persuaded to recommend that such measures should be introduced how seriously do you think the value of the Bill would be impaired?

  Mr Clements: We really strongly welcome this Bill. We would want this Bill to go forward. We give it all encouragement possible. We regret strongly that there is not a public protection provision in it. We are of the opinion that inevitably legislation would have to be brought in to deal with this. The High Court is now taking control of this and High Court proceedings are expensive. Although we believe the Bill would be less effective it would still be an extraordinary achievement.

  Q644  Chairman: Moving on to public funding for legal advice and representation, how do you suggest that the new Court of Protection can be made accessible to people with limited financial means in the context of increasing and competing demands on the legal aid budget? Finally, an easy question: is there any way of estimating the costs of all this?

  Mr Clements: The only idea we had on costs was to see what Scotland was spending on this matter and multiply it by whatever the appropriate figure should be. As I understand it, this Act has created no major case in Scottish courts so it has not been a "nice little earner" for lawyers, unfortunately, and therefore it may well be that the cost impact is not as much as one might have feared.

  Q645  Chairman: If colleagues have no further questions, can I thank you very much for a very helpful session.

  Ms Chapman: Thank you very much for inviting us.

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