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Baroness Chapman: This group of amendments is designed to protect people who are unable to or have difficulty in communicating verbally, whether they lack mental capacity or not. Every effort must be made to ensure that they have the opportunity to "speak" by their usual means. That may not mean speaking with their voice; it may be a speaking computer linked to a wheelchair—that is, if a person is not in his wheelchair, he has no voice. It may be a symbol board where an interpreter is required.

People must not be judged as having no capacity because professionals did not avail the patient of every opportunity. Many medical professionals have little or no disability equality training. Although experts in their chosen field, that does not mean that they will have any knowledge of the many non-verbal communication methods now available. We must never forget that healthcare professionals are like the rest of society: there are good, bad and indifferent ones. As with the rest of society, some will be comfortable and relaxed and make every effort to communicate. Others will be uncomfortable, embarrassed and unsure of how to interact, perhaps with preconceived ideas.
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Those are the two ends of the spectrum and people will inevitably fall between them at varying points. The amendments make it clear what their duties are, so whatever the background the process will be clear.

Lord Rix: Speaking from a personal point of view, I have a grandson with Down's Syndrome who also has dyspraxia. It is possible that he may have to go through life only signing; words are coming, but he is not yet making sentences. It is essential that such boys, who grow up to be reasonably intelligent adults—but perhaps with a lack of ease of communication—should be given the right to communicate in the Bill.

Baroness Greengross: I would like to speak to Amendment No. 9 in my name, which is also about communication, although on a different point. It would remove the word "general" and replace it with the word "the". That is simply because a general explanation can mean a good explanation in general plain English terms, but it can also mean that we say something to another person that is so general that it is better interpreted as, "I know best and I think you need to take my advice". We can so easily fob people off with a general type of argument such as, "It is good: if you have this operation you're going to feel a lot better".

I am thinking in particular of people in the early stages of Alzheimer's, who can understand a great deal but need a much more explicit explanation of what someone is talking about. We also know that any explanation is a two-way process. It needs to be in-depth: it takes a bit of time, and we need to get the reaction of the person to whom we are making an explanation. The word "general" makes the provision open to bad practice: it would be good if it were removed and replaced with "the", so that it is just an explanation.

Lord Alton of Liverpool: I support Amendment No. 6 moved by the noble Baroness, Lady Barker, and also the amendment spoken to by my noble friend Lady Chapman. Earlier in our proceedings, I talked about the importance of continuity of treatment. The Minister discussed speech therapy, which is an issue close to my heart; we discuss it a great deal at home because my wife is a speech therapist in the National Health Service, specialising in the care of people—mainly adults—with disabilities. She often talks about the importance of learning to communicate in ways other than verbal communication, even though she is a speech therapist.

I have a friend who regularly visits someone in a hospice who was believed to have no ability to communicate. It was ultimately established through perseverance that just by a system of blinking of eyes he was able to communicate a great deal. He and his fellow patients have developed methods of playing games with one another, and it was therefore possible to create a way of penetrating the darkness in which his life had been until that time.
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Where my noble friend talks in her amendment about the,

she has an important point to make that we should accept and which goes further than the Bill's current provision. All of us who have forgotten our PIN numbers have a great deal of sympathy with the points made by the noble Baroness, Lady Barker.

Clause 3(1) sets out the circumstances in which a person is to be regarded as unable to make a decision for themselves. Amendment No. 8 would clarify the circumstances in which a person is to be regarded as unable to communicate his decision. It requires those assessing capacity to exhaust all means of allowing the person under assessment to communicate his decision. Those of us able to communicate with ease are often too quick to judge others who have communication difficulties as unable to communicate, when often all that they require is help and support with the use of some form of communication aid.

The Joint Committee, when considering the draft Bill, recommended codes of practice that,

That principle of every possible means of allowing someone to communicate their decision should be exhausted and enshrined in the Bill. It is too important to be left to codes of practice. Even if the exact words in Amendments Nos. 6 and 8 are not acceptable to the Minister, I hope that she will go some way to accepting the arguments put forward.

Lord Walton of Detchant: I wish to support the principle set out in Amendment No. 8, which is grouped with Amendment No. 6, if only because a great many different kinds of communication aids are now available.

To take the most extreme example, there is a rare neurological condition called the locked-in syndrome, where the patient is totally incapable of writing, speaking and communicating in the standard way. However, while being extensively physically incapacitated—all four limbs are paralysed—they are able by movement of the eyeballs to activate electronically controlled equipment that enables them to communicate, often with great skill. For that reason, it is crucially important that a few additional words, as in Amendment No. 8, should be included in the Bill.

Lord Carter: I put my name to Amendment No. 12. I can be brief, as all the arguments have been expressed extremely clearly. We can all agree that, while we need all the communication support possible while the person's capacity is being assessed, it is equally important that, once they have been assessed and been shown to be incapable or incapacitated, they should have the same
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help with their communication. Amendment No. 12 would mean that people who lack capacity have access to communication support when decisions about their lives are being taken. That will help to make sure that they are at the centre of the decision.

I was intending to quote recommendation 70 from the Joint Committee until the noble Lord, Lord Alton, did so. I will say as a fallback that, in the unlikely event that the Minister is unable to accept the amendments, I hope she will spell out clearly what will be in the code of practice.

Baroness McIntosh of Hudnall: I add my support to what has been said on the matter, to which I alluded at Second Reading. The issue that has come up that has not been stressed is the value and importance of time. There are many aids to communication of various complex and sophisticated natures, but the most important of all is time, which is often the most costly and the thing that people are most unwilling to devote to the difficult business of assessing.

It is not just in the assessment of people's capacity but, once some capacity has been established, in the drawing out of what can be achieved by the application of that capacity. It would be helpful if the Minister could say in what way stress can be laid either in the Bill or in codes of practice on the importance of devoting sufficient time of service providers to establishing a means of communication and then using it.

Earl Howe: I support the general theme of the debate and in particular Amendment No. 6, where my name appears. I speak also to Amendment No. 14 in this group. I would like to spend a moment on the meaning of the phrase, "reasonably ascertainable" in Clause 4(6).

The information that is reasonably ascertainable will vary for different people in different situations. A doctor treating an unconscious patient in A&E may have to act with speed and therefore may not be able to take much time to ascertain what information is available about the person's beliefs or past wishes and feelings. On the other hand, a carer looking after an incapacitated person at home may have plenty of time to gather a great deal of relevant information about that person as a guide to where the person's best interests lie.

The point here is that what is "reasonably ascertainable" needs to be defined by reference to the circumstances that pertain in a given situation, not by reference to whether information is or is not theoretically available in some way. A doctor needs to know that in a dire emergency he can safely treat someone without falling foul of the law and without risk of being sued by the patient if and when he recovers. He does not want the patient to wake up and say "My telephone number was in my pocket. If only you had read it and taken half a minute to telephone my wife you would have found out that I am a Christian Scientist and that it is against my beliefs to accept conventional medical treatment. So I am going to sue you".
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Professionals and unpaid carers need to know exactly where they stand in relation to the law and what they are expected to do to comply with it. This was a point made by the Joint Committee in its scrutiny of the previous draft Bill. I am not sure that, particularly for people who are not lawyers, the phrase "reasonably ascertainable" on its own provides the necessary signal that what is reasonably ascertainable in one situation may not be reasonably ascertainable in another.

Can the Minister assure me that the Bill as worded does not give rise to the kind of hazard I have described? Can she further assure me that while no doubt there will be appropriate guidance on these matters in the code of practice, there is no need to qualify the phrase "reasonably ascertainable" on the face of the Bill in the way that the amendment proposes?

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