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Baroness Finlay of Llandaff: I would in spirit very much like to support the amendment, but I have a small problem with it. Perhaps the Minister can help me or the noble Lord, Lord Carter. My problem is that one's capacity to take a decision varies depending on the size of the decision. If there is to be a formal way of assessing capacity and a duty formally to assess it, it is necessary to have a tool that is valid and possible of reproduction, as well as being widely applicable. One can then demonstrate that assessment has taken place against a measure.
 
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The difficulty is that, so far as I am aware, we do not have a widely applicable tool. Various different tools are available in practice to assess capacity in a range of different situations, but there is no universally applicable model. I wonder whether that might become a problem.

I have a second concern with the amendment which might seem minor. Subsection (2)(c) lists various NHS providers, but I am concerned about patients in the private sector and how a duty to assess would cover them. It may be that I have missed it in the wording of the amendment.

Lord Alton of Liverpool: I, too, support the noble Lord, Lord Carter, in the spirit of the amendment. I have two brief questions for the Minister. The first is whether local authorities and health authorities have been consulted about the new duties that will be placed on them. The second relates to their ability to carry out these functions. What resources will be made available to them when the legislation is introduced? All of us who have served on local authorities know that there are many competing demands on them and that their budgets have already been formulated for this fiscal year. Some lead time is needed in order to be able to work out new financial provisions if they are required. Can the Government give an indication of the overall costs of implementing the legislation and the provision that is being made for that?

Baroness Ashton of Upholland: I am grateful to my noble friend because this is an important opportunity to examine the issues he has raised on assessments, and so forth, to ensure that we implement the legislation correctly. My noble friend Lord Carter invites me to have inserted into the Bill the formal procedure requirements he indicates. I accept the comments of the noble Baroness, Lady Finlay, on the missing parts, but I am sure that my noble friend would deal with that were he to bring the amendment back.

It is right that the assessment of services should take account of the Bill. It is what we have always intended and we will work to ensure that it happens within the law. I am clear that we would wish to see what my noble friend seeks, but I intend to resist the amendment for three different reasons. The first is something that the noble Baroness, Lady Finlay, alluded to when talking about the differences in the formal processes and procedures. I question whether it is always appropriate to have such formal procedures.

We have stated in the code of practice that where consent to medical treatment or examination is required, the doctor or clinician who is proposing that treatment must decide whether a patient has the capacity to consent and must record his findings in his medical notes. But I am not sure that it is right that the decision to provide any service should be subject to what would essentially be a full formal capacity assessment, even if it is for the provision of quite a small service. I am sure that that is not what my noble friend is after. If someone is being assessed for the provision of new cutlery—a common example—perhaps after having a stroke, one would not
 
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be looking for a full medical assessment. I am sure that my noble friend is not looking for one either, but the amendment would invite that to happen in practice.

This does not mean that we want the Bill to allow public bodies to provide inappropriate care for someone because he lacks the capacity to consent. The provision of equipment would be an act of care or treatment. It would therefore be required in the best interests of the person, with the individual as fully involved and consulted as possible. In relation to communication aids, we have already indicated in our earlier discussions that someone is not to be treated as unable to make a decision unless all practical steps have been taken to help them, including with communication difficulties.

The second reason why I have concerns about this amendment is that I am of the view, and have become increasingly so as time has gone on, that primary legislation is not the best place to tackle everything. This is important—I recognise that—but I am not sure that it is something that I want to see covered in primary legislation. The purpose of the Bill is to set out the broad principles and absolutes, if I may put it like that, to be followed, but we cannot lay out on the face of the Bill the practical detail of how professionals should operate, and I am not sure that we should. We want good practice to be followed, bearing in mind what the noble Baroness, Lady Barker, said earlier this evening about siloed good practice and the need to make sure that it does not operate in that way.

This issue goes back to where we started: every person is different and the needs of each individual need to be taken into account. The details of the assessment procedure—this is where the noble Baroness, Lady Finlay, came in—must be a matter for professional judgment in relation to the case, with support from the code of practice in training and guidance. That is my second consideration.

It is important to indicate that we are putting the individual at the heart of the process. The work involved in putting together the single assessment process for older people, the valuing people programme and the National Service Framework for Mental Health are good examples of where we have managed to increase awareness and spread good practice, and I hope that they will begin to address some of the issues raised.

My third point is that the requirement to consult others is already part of "best interests". The noble Lord, Lord Alton, asked me about the consultation process. We are in dialogue with many different bodies that are concerned with the Bill. One of the things that will happen when, as I trust, the Bill becomes law is that the code of practice, which I think I described earlier as the "living document" upon which professional practice will be based within the framework of the Bill, will be out for consultation to enable us to engage with all those involved.

I am waiting to see whether I have the final figure for the amount of money; no, I do not. I think that I indicated that we have £12 million available for some of the implementation process. We have separate moneys available that we will talk about later in the Committee
 
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when we discuss the independent consultee—we may find a name change coming our way. I think it is £6.5 million for that. There will be others. I shall write to the noble Lord and copy other noble Lords in on that.

Of course, in the Bill it is clear that the requirement to consult with, and take account of the views of, others is provided under "best interests". Clause 4(7) sets out the consultation process, which includes the independent advocate and,

"anyone engaged in caring for the person or interested in his welfare . . . any donee of a lasting power of attorney . . . and . . . any deputy".

I think that point is already covered in the Bill.

For those reasons, I would resist this proposal being in the Bill and would steer my noble friend firmly towards the ability of the code of practice to enable us to discuss some of those issues, while recognising the principle to which my noble friend referred. I ask my noble friend to withdraw his amendment.

Lord Carter: When the Minister tells a former Chief Whip that she is going to steer him firmly in a certain direction, it reverses what we used to do. I am extremely grateful to the Minister. Obviously this is a probing amendment. If a person lacks capacity, an assessment will have to be carried out one way or another to ensure that he receives the right housing, social and residential care, and so on. There is no choice on that.

It is implicit in the Bill that those assessments will be carried out. This was an attempt to explore how that will be done. I am satisfied with my noble friend's answer that it will be spelt out in the code of practice. As regards the timetable, perhaps this may be a chance for the Minister to confirm that 2007 is the likely date for implementation.

Baroness Ashton of Upholland: Indeed, but I am very conscious that my noble friend steered me, as he is prone to do, towards looking for earlier implementation. There are real issues about ensuring that the different elements of this Bill work together—particularly, the Court of Protection.

I am now engaged in an interesting debate about what we mean by 2007, which, as Members of the Committee will know, has 12 months in it.

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