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That is surely one reason why there is merit in thinking about a national strategy on advocacy for all client groups, as the Making Decisions Alliance has been recommending. One way or another, there is a range of policy initiatives on advocacy emanating from a number of sources within Government, each of them distinct in their own way. We may be debating even more initiatives when the Mental Health Bill eventually reaches us. Who knows? I wonder whether the Minister can say what work, if any, has been going on to bring these different strands of advocacy practice together under the same policy microscope, as it were. It is only by doing so that common themes and objectives, as well as problems, can be identified. Independent advocacy is an important function in our national life. It deserves to be dignified with a co-ordinated national approach.
Regulation 3 relates to care reviews following decisions being taken about medium-to-long-term accommodation for a mentally incapacitated person. Is it correct that these provisions apply to all care
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Finally, I ask the Minister about the resources that will underpin these regulations. The Explanatory Notes state that advocates are to be funded by “new money” from the Department of Health. Can the Minister confirm that this is not a case of robbing Peter to pay Paul, and that the budget for advocacy will not erode the mental health budget more generally? Secondly, can he say something about standards of competence for advocates, how those standards are to be enforced and how advocates are to be suitably trained and monitored? Lastly, how will the Government ensure that there are enough IMCAs to do the job and that their geographical spread is such as to meet demand as it arises?
I emphasise our support for these regulations, and look forward to the Minister’s response.
Baroness Barker: My Lords, I, too, thank the Minister for his introduction to these regulations. Along with the noble Earl, Lord Howe, I was privileged to be one of the small band of people in this House who worked in some detail on the Mental Capacity Act. It is legislation of which this House should be most proud and an excellent piece of work.
That Bill was founded on principle. Because of the subject matter and the approach that the Government rightly took to it, the detail of the secondary legislation—the regulations, guidance and code of practice—were always going to be of considerable importance. It was a framework Bill. We must therefore spend time debating these matters, and I am glad that the Government have recognised that and afforded the time to do so.
Another reason why we should give considerable attention to the matter is that throughout the passage of the Bill it was apparent that three groups of people each took a distinctly different view of the matter at hand. First, there were the people with family members whose capacity is severely limited and who, perhaps because of their experience, are disinclined towards what they perceive as the intrusion of advocates. Secondly, there were the people with limited capacity who equally feel that an advocate can be an intrusion on their rights and liberty. Then there are the organisations which work with people who lack capacity and which frequently come into contact with people who have been subject to abuse or discriminatory treatment, who on the whole take a much more positive attitude towards advocates. In trying to meet the needs of those three distinct
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I welcome the regulations, given that they bear the hallmark of work and views that have been changed in the light of practice and of consultation. But I need to make a few points. I should have stated at the beginning that I declare an interest as an employee of Age Concern England, which is a member of the Making Decisions Alliance.
My first point—that there have been pilots—was referred to by the noble Earl, Lord Howe. I join him in asking the Minister to tell us what findings have come from the pilots so far. Will the Government give an undertaking to keep those pilots under review? It is only by seeing how the legislation works in practice that we can continue to improve it, even at this stage when it is being implemented.
It is welcome that the regulations recognise that there will be circumstances, other than those envisaged when the legislation was passed, in which an independent mental capacity advocate is needed. I am glad that a discretionary power is given to local authorities and to health bodies to vary the circumstances in which an IMCA is appointed.
I draw the Minister’s attention to the fact that the regulations specifically describe the situations in which an IMCA can be appointed. The guidance is much wider. That may not make a considerable difference to statutory authorities, but it may to the people who are the potential users of IMCA services. They may look at the regulations rather than at the guidance. What will be done to ensure that the extent to which this power is discretionary and available is made known to individuals who may use it?
My second point is about the circumstances in which an IMCA could be appointed, particularly when a deputy has been appointed by the court of protection. We know that deputies are taking over the functions previously held by appointees, and that they will have both a financial and a welfare role in the lives of people who lack capacity. There could be a conflict of interest for a court-appointed deputy. Therefore, it is possible that for an individual’s interests to be best served an independent advocate might be needed, particularly when decisions are being made about precisely where care should be received. As the noble Earl, Lord Howe, said, social services departments are under considerable budgetary pressures, particularly on residential care, and it may be that the conflict for the person from a local authority acting as a deputy would be too great.
The next area I need to ask the Minister about is clarifying the links between an independent mental capacity advocate provided under the Bournewood contacts and the Mental Capacity Act. Will he clarify the potential overlap between those different initiatives?
I want to echo the point made by the noble Earl, Lord Howe, that while the regulations make clear that the Government see a priority in those who have neither friends nor relatives to look after their interests, there are occasions—it was always envisaged that there would be—when people need assistance;
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Finally, I, too, want to ask the Minister whether the research from the pilots will give us an indication about the availability of advocacy and the ease with which it can be accessed. It is the Government’s intention, I understand, to recruit many of the IMCAs from existing advocacy schemes. The problem with that is that many advocacy schemes which exist within the voluntary sector exist on a very perilous basis. Getting funding for advocacy schemes is extremely difficult. From the pilots so far, what has been the level of demand? What has been the level of demand from people with relatives or friends? Is there an available pool of advocates to meet that need? With those questions, I, too, welcome the regulations.
Lord Warner: My Lords, I am grateful to noble Lords for their support for the regulations. Both noble Lords opposite raised issues about what we have learned from the IMCA pilot schemes. The pilot schemes have been working since January 2006 with people with dementia, brain injury, a learning disability or mental health needs where important decisions about medical treatment and residence are being made. We will be producing guidance for the national implementation of the IMCA service, which is based on the experience of the pilots. Cambridge University is undertaking a cross-site research project aimed at learning lessons from the seven sites and producing practical guidance. The short answer is that we will be drawing on the pilots in that way. The pilots will stop in April when, as I said in my opening remarks, the new service comes into operation across the country.
In answer to another question, we have given a commitment both to monitor the service and to commission an evaluation of the new service across the country after the first year. That has been agreed to; we are committed to that; and we will take it forward.
Yes, there is new money. The IMCA is being funded from that new money by the Department of Health through local authorities. There is £6.5 million for IMCAs and £12.5 million for the Act itself.
The noble Earl, Lord Howe, asked whether we are pulling together the threads of a national strategy for advocacy. That is an important issue, but it is also important that advocacy services are bespoke to the sets of services that they are trying to provide and the needs that they are trying to meet. However, the different strands of advocacy will be brought together with one unified training qualification for all advocates. So we are moving in that direction, but I emphasise the importance of “bespokeness”, if I may coin a new word, to ensure that people's particular needs are met.
On care reviews, yes, IMCAs can work with people who have not been previously involved with an IMCA. We have given that commitment. Are there
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The noble Baroness, Lady Barker, asked whether an IMCA should be appointed where a local authority is appointed as the deputy. The advice that I have been given is that it will be rare for the Court of Protection to appoint a director of social services as a deputy because of the potential conflict of interest. Where it does so, the court must be satisfied that he or she can perform his or her duties impartially. I shall look further into that and if there is any more that I can usefully add, I shall write to the noble Baroness and the noble Earl, Lord Howe.
The noble Baroness also raised the issue of how the IMCA relates to the Bournewood situation. My understanding is that the Bournewood proposals would simply add another situation in which an IMCA would be appointed. We agree that guidance and training will be important and welcome the continuing involvement by all stakeholders in the Bournewood implementation advisory network. We are trying to join this together.
I hope that I have answered most of the points made by noble Lords and that, after this constructive discussion, we can pass the regulations.
On Question, Motion agreed to.
Smoking (Northern Ireland) Order 2006
8.22 pm
Lord Rooker rose to move, That the draft order laid before the House on 4 July be approved.
The noble Lord said: My Lords, the purpose of the Smoking (Northern Ireland) Order 2006 is to ensure that the public and employees are protected from exposure to tobacco smoke. The order would introduce provisions to control smoking in enclosed public places and workplaces.
In summary, it introduces four new offences: failure to display no smoking signs; smoking in a smoke-free place; failing to prevent smoking in a smoke-free place; and obstructing an authorised officer.
In addition, the order includes enabling powers so that the department could by regulation: define the meaning of “enclosed” and “substantially enclosed”; specify exemptions; set out the amount of fixed penalties; and amend the age limit for sale of tobacco products to young persons.
I should make it absolutely clear at this stage that the Government have no plans to change the age of sale in Northern Ireland at present and simply propose to take a power to enable a future devolved Administration to decide how best to proceed—so that the power is there if they wish to do so.
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I should also point out that, unlike the Health Act 2006, the draft order would not permit an exemption for performers in those theatres which are licensed premises under the Licensing (Northern Ireland) Order 1996.
Article 4(iii) of the draft order provides that regulations may not exempt premises for which a licence under the 1996 order is in force. My honourable friend the Parliamentary Under-Secretary of State, Paul Goggins, will take the earliest opportunity to ensure that the position in Northern Ireland mirrors that in England. This has arisen purely as a result of a human error in the drafting.
I am also pleased to report that in Northern Ireland there has been strong cross-party political support for comprehensive controls on smoking in enclosed public places and workplaces, as well as support from a wide range of interested parties including health professionals, local councils, the voluntary sector and trade unions. The cost of introducing these provisions in Northern Ireland is estimated to be just under £6 million in 2007-08 and £3 million in 2008-09. This is to cover enforcement, which includes a compliance telephone helpline, and a communications programme, signage and support for smoking-cessation services. Guidance on the implications of smoke-free legislation will be widely distributed to enforcement officers, employers and the public. The Government are confident that, as a result of this new legislation, lives will be saved and smoking-related illnesses reduced. I beg to move.
Moved, That the draft order laid before the House on 4 July be approved.—(Lord Rooker.)
Lord Glentoran: My Lords, I thank the Minister for presenting the order succinctly, as he always does. I am not very happy about the order. I support, as does my party, the prohibition of smoking in various places. However, it appears that the Government have not reflected in the order the lengthy and constructive debates on the Health Bill as it went through Parliament. The orders contain many of the flaws, in particular the lack of definition and the non-appearance of the detailed regulations in time for industry to comply with them, which were improved in that Bill. That is a significant deficiency.
The debate about the validity of the smoking ban has gone on for a long time, and I do not want to go over any of that ground again. However, we need to pay attention to the question of the premises to which the ban should be applied, and how it should be applied, and to the certainty of its effectiveness or lack of effectiveness. These matters, particularly the definition of “enclosed” and “substantially enclosed”, were debated at some length in our consideration of the other Bill.
If the Government do not bring out sensible and clear regulations soon, places of work will have a very difficult time identifying whether they are to be smoke-free and in making provisions for smokers. Delayed regulations will lead to difficulty in getting planning permission for alterations in time, to unnecessary compliance costs, and to increased uncertainty among the wider public about what is
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Under the order, smoking could be banned in all vehicles at all times. During consideration of the Health Bill, the Government confirmed that they intended to ban smoking in all vehicles used as a place of work, unless they were always used by only one person. Is that not confusing? How will that be enforced? The tractor man across the hill in the fields usually smokes, something happens and his boss has to come and get the tractor. Is he guilty? How ridiculous. This would mean exactly that. A tractor would be smoke-free if each farmer had one of his own, but the world simply is not like that. On many days, people do not know what vehicle they will get into when they get to work, as I am sure noble Lords know for themselves.
The order allows government regulations on signage to be excessive, burdensome and permanent. We have enough burdensome and permanent graffiti in Northern Ireland without having uncontrolled no-smoking signs all over the walls of our lovely buildings. There should be controls and management, and there should be liability for planning permission and proper management.
The order allows the Government to raise the legal age at which tobacco can be bought to any age, as the Minister highlighted. The Health Bill for the United Kingdom states that the age should not be raised above 18 years. Why is that not included in this Bill? In principle, we support the order, but I am extremely unhappy at how it has been put together.
8.30 pm
Baroness Harris of Richmond: My Lords, I, too, thank the Minister for introducing this order. I assure him that we very much welcome it. It is a bold legislative step to ban smoking in public places, but it is necessary. I was pleased to see that almost all those who responded to the consultation opted for a total ban on smoking in public places. The BMA’s 2002 report concluded that there are at least 1,000 preventable deaths every year which are the result of passive smoking. We have heard that the BMA and the Royal College of Nursing support a complete ban in enclosed public spaces and we on these Benches agree.
As we have seen from the Republic of Ireland, the issues of compliance and enforcement will not loom large. If Ireland can enforce the law, and publicans and others comply in the way that they do to a large extent, the same should be true in Northern Ireland. This is a basic health and safety issue. A smoke-free environment should be the norm where non-smokers
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In addition to the immediate effect on employees and customers, there are of course wider benefits to be reaped in banning smoking. Such a ban would clearly help to reduce smoking in the population as a whole, which can be only a good thing. No-smoking laws have been shown to support smokers to quit. In the Republic of Ireland, a survey by the National Smokers’ Quitline service revealed that about 10,000 smokers reported that they had reduced their consumption since the ban came into force. According to the Irish Revenue Commissioners, cigarette sales fell by nearly 16 per cent in the first six months of the ban.
Finally, we should note the words of the BMA’s head of science and ethics. Dr Vivienne Nathanson said:
“The medical profession is united in its calls for a total ban on smoking in all enclosed public places and workplaces. Recent research reports that second-hand smoke kills 30 people each day. The situation in New York, Ireland and other cities and countries that have gone smoke-free show that these policies do not harm business, they do not cost jobs. The policies are popular, they encourage people to quit and they protect health and save lives. What possible argument is there for not implementing a total ban?”.
Lord Rogan: My Lords, I, too, thank the Minister for introducing this draft order. I speak briefly and simply to assure the Minister that many of us who live and work in Northern Ireland generally welcome and support this order.
Lord Dubs: My Lords, I also welcome with great enthusiasm what the Minister has said and that the Government are now bringing this in. When we look back on the debates that have taken place, we will not wonder why we did it. We will wonder why it took us so long to introduce these measures, which are self-evidently sensible and proper. They have the support of the majority of people, even smokers, as is evidenced from research in Ireland. They have the support of the medical profession and they accord entirely with common sense.
When is the proposed starting date? In Scotland in August, I asked a man who ran a pub what he thought. He said, “Well, it’s very straightforward now. I suppose if there is any tension, it will be in the winter when people can’t smoke outside”. I am sure that my noble friend has answers to the following specific points. What will happen in prisons, in long-stay hospitals, particularly mental illness hospitals, and in hospices? These questions are not intended to be hostile. I am totally in favour of the Government’s measure. I wish them good luck in implementing it.
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