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Baroness Masham of Ilton: Following on from the points raised by the noble Earl, Lord Howe, about the phrase "reasonably ascertainable", I hope the Minister can assure me that if the information about a person is not obtainable, the doctor will still treat that person. Otherwise it might be too late if the doctor waits for information that is not obtainable.

Baroness Ashton of Upholland: Perhaps I may begin in the reverse order because it will be useful to deal with Amendment No. 14 and the issues raised by the noble Earl, Lord Howe, and the noble Baroness, Lady Masham. It is my understanding that the situation would be as the noble Baroness, Lady Masham, described: that the doctor would treat the patient. Part of what we are trying to do with the Bill is to make it quite clear that doctors are covered when providing treatment. The phrase "reasonably ascertainable" is specifically designed to cover a range of circumstances. Where a patient is unconscious and the doctor is worried that his life is in danger, the medical staff would not waste time looking through the patient's pockets for a phone number; they would treat the patient and deal with such issues later.

The noble Earl has raised an important point. I shall certainly ensure that we clarify that in the code of practice. I shall look again at the wording and make sure it is absolutely right. I am grateful to the noble Earl and the noble Baroness for raising the matter. I am quite confident that that is what we intend and I shall make sure that that is what happens when we deal with it.

I am at one with noble Lords in recognising the importance of communication. Having spoken to the noble Lord, Lord Alton, whose wife is a speech therapist, I recognise that speech therapists often talk about different forms of communication. Indeed, the children, young people and adults with whom they are dealing often find alternative methods of communication too.

I accept completely what the noble Lord, Lord Rix, said about his own experience with his grandson, who I believe is called Robert.

Lord Rix: He is.
 
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7.15 p.m.

Baroness Ashton of Upholland: I hope he is well.

Noble Lords have a great deal of experience in these issues and they know the importance of communication. We are very clear that we do not want people to be thought to lack capacity where the issue is one of communication—I believe that that goes to the heart of what noble Lords are looking for—and, indeed, where efforts are insufficient to help individuals understand what is happening and to communicate in return.

We amended the Bill in another place and I shall take a minute to go through what we have done. I want to ascertain how noble Lords wish to deal with this and offer them an opportunity to consider again. My premise is that the Bill is probably strong enough in the areas that noble Lords are concerned about and I shall deal specifically with the issues raised in each amendment. As I do so, I shall seek to address the underlying questions that noble Lords have raised about training, support and the code of practice.

As noble Lords will know, Clause 1(3) states:

"A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success".

That is, of course, about—and includes—communications support. That principle is built upon in Clause 3(1)(d), which makes it clear that a person cannot be considered as being unable to make a decision for himself if he is unable to communicate his decision by talking, using sign language or any other means. It is important to point out that this goes further than the Adults with Incapacity (Scotland) Act 2000. I know that some noble Lords have studied that Act and are interested in whether comparisons might be made.

In another place on Report there were some helpful representations from all sides of the House and from the Making Decisions Alliance, to which I pay tribute in this particular context as well as many others. We have brought forward an amendment to complement the requirements for communications support with a provision about helping a person to understand. The new Clause 3(2) provides that:

"A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand a general explanation of it"—

I should say to the noble Baroness, Lady Greengross, that I shall come to the meaning of "general" in a moment—

"given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means".

The purpose of the subsection is to make it absolutely clear that lack of capacity cannot be assumed simply because someone cannot understand a complex explanation of a matter. Instead, the particular needs of the person who may lack capacity should be considered and the information presented and explained accordingly. As noble Lords have indicated, that might include picture boards or audio tapes; it might mean speaking slowly or in different or simple language. The provision is deliberately extremely far-reaching and encompasses what I believe noble Lords are seeking to achieve.
 
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The provisions in the Bill make it clear that no one should be treated as being unable to understand the information relevant to a decision and, in turn, be thought to lack capacity under Clause 2(1), merely because they have communication difficulties.

I should add that the draft code of practice contains further detail and guidance on the provision of communication support. Pages 18 and 19 of the code contain simple advice such as taking time to be with someone and getting to know them—a point made by my noble friend Lady McIntosh—as well as explaining the more complex approaches such as the use of electronic aids and language experts.

So, starting from that premise, that is what we are seeking to do.

I am very grateful to the noble Baroness, Lady Chapman, for the time she has taken with me today to talk through some of the issues, as well as discussing our cats, as I recall. Amendment No. 8 is, in a sense, a redrafting of the provisions for communications support. I contend that the existing reference to communicating by talking, using sign language or any other means is already extremely broad. It not only incorporates what is in the amendment but it retains flexibility. We are specifically seeking flexibility to take account of changing technology and so on.

The noble Lord, Lord Walton, referred to locked-in syndrome and the ways in which someone may be able to communicate using technology as well as by physical means. We are keen not to rule anything out because it is very important to enable that to happen. I accept completely the principle behind Amendment No. 8 but we believe that our wording gets us further than the wording of the amendment, for the reasons I have indicated.

As to Amendment No. 9, I understand entirely the concern of the noble Baroness, Lady Greengross, that the use of the word "general" in Clause 3(2) might allow people to give a cursory or inadequate explanation. I reassure the noble Baroness and other noble Lords that that is not the case.

The clause refers to a "general" explanation because it is trying to ensure that people cannot be treated as lacking capacity merely because they cannot understand a complex explanation, or perhaps one full of medical jargon. The clause requires that the relevant information is explained in a way that is easy for the person concerned to understand.

It should be clear, too, that this provision is not about the requirements to obtain consent or explain treatment; it is about when you regard someone as lacking capacity because they do not understand. It does not mean that doctors have to explain in only broad brush terms. Instead, where a person does not seem to understand an explanation that a doctor would normally give, the doctor must then consider whether that person can understand a general explanation of it in such a way as is appropriate. That is where the use of the word "general" comes in. If not, then that person may lack capacity.
 
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So deleting the word "general" removes that middle step—the obligation to give broad, clear explanations. Deleting the word could mean that people might be regarded wrongly as lacking capacity simply because they cannot understand a complex explanation. It is where the word "general" fits and how it is used that is important.

But I understand the concerns and we will ensure that the code is amended to include further detail and guidance on that matter.

I turn to Amendments Nos. 12 and 14 which ensure that appropriate communication and support are given to help the person concerned participate as fully as possible in decisions affecting them and to communicate their present wishes, feelings, beliefs and values. Of course we accept that it is important to make sure that every effort is made to help people express their wishes and feelings.

As I have explained, the Bill already contains strong provisions for communication support within Clause 1(3). That applies throughout the Bill. Clause 4(4) provides that a person making the best interest determination,

"must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him".

It is a very broad obligation and it includes the provision of appropriate communication support.

It is also worth saying that, recognising the importance that we have placed on this, I discovered that the Department of Health set aside £12 million for the training and awareness programmes for the Bill for health and social care practitioners. Within that there will be work done on the importance of communication support and training carers to communicate effectively with people with impaired capacity so that we can spread good practice, but also ensure that we have that cultural and awareness shift that the Bill and the code seek to achieve.

My contention is that we have very broad provisions which apply throughout the Bill and which enable us to accept that technology or other changes may take place, and that the word "general" is positioned correctly for the specific use of the Bill and that we take on board the points made about the critical nature of communication, the time needed to achieve it and the time needed to spend with people. On that basis I hope that noble Lords will feel able to withdraw the amendment.

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