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Baroness Barker moved Amendment No. 129:

The noble Baroness said: I am very happy to move Amendment No. 129 and to speak to the whole series of amendments grouped with it. I am delighted to do so because the Minister conceded the point on Second Reading. So we can all be in agreement that the term "consultee" is not appropriate. We are not arguing that there should be advocates or indeed an advocacy service; we are simply seeking to define the scope of that service.

I suppose that I am starting from the point that the Joint Committee made on advocacy. We were mindful that the Bill's provisions could lead to a completely unrealistic demand for an almost limitless service. Being pragmatists, albeit a bunch of pragmatists who discuss principle, we realised that that was not going to be feasible. We were also mindful in the Joint Committee that the subject of advocacy turns up time and time again. I have lost track of the number of times when, speaking from these Benches to various Bills, I have argued the case on advocacy. Under the
 
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Adoption and Children Act, local authorities have a duty to assess a need for advocacy but not to provide it. Under the Health and Social Care Act 2001 the Secretary of State has a duty to arrange for the provision of independent advocacy services, but only to provide assistance to individuals who have complaints about healthcare services.

In the past 10 years, advocacy has recurred as a theme in legislation, and it has grown in practice. I have worked in the field of health and social care for about 20 years, and I now go to meetings where it is expected that people will be there who are acting as advocates for people who lack capacity. Even five or six year ago, that did not happen, but now it is the norm. In this of all Bills it is important not only that we consider the question of advocacy, but that we make an appropriate decision about it. The noble Baroness has promised to return at a later stage with more detailed proposals.

On the issue of titles, I gather that there is a notion doing the rounds that the advocates to do with this Bill should have a legislation-specific name, rather in the way that mental health advocates do. I am not terribly convinced by that. I understand why mental health advocates are singled out in the way that they are; they work to specific legislation for a specific purpose. This legislation is much wider and much more flexible, so it would be difficult in practice to separate out people acting as advocates under this Bill from advocates more generally.

I am glad that in the course of our deliberations we are going to get away from the idea that the role of an advocate is somehow to provide assistance to decision-making bodies—that is not the role of an advocate. It is clearly understood to be someone independent who enables someone who lacks capacity to make decisions for themselves. The last thing that we should do under this legislation is come up with some hybrid or corrupt definition of advocacy, which would be of no use to anyone.

At various times during the passage of this legislation we have looked to Scotland, which is always a good idea. In Scotland an advocacy service has been set up related to the legislation that was passed there. It has been interesting to read the report of the research into the implementation of that Act, which has shown how important voluntary organisations have been, not only in establishing advocacy services to which people felt they could turn, but in setting standards in relation to those. I do not want to pre-empt the next group of amendments, which will be introduced far more elegantly than I could ever do by the noble Lord, Lord Rix. At the end of our discussions, we should at least begin from a point that is specific to the role and not the legislation, because that is what life is like. I beg to move.

Lord Alton of Liverpool: I have added my name to this amendment, and I am happy to support the remarks made by the noble Baroness, Lady Barker. She, the noble Lord, Lord Goodhart, and the noble Earl, Lord Howe, have proposed this amendment.
 
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Amendment No. 142, which is in my name and that of the noble Baroness, Lady Masham of Ilton, is grouped with it.

The amendments—a great number of them are grouped together—take up a debate that occupied a lot of time in another place. The Government propose to introduce independent consultees along the lines of existing advocates to advise National Health Service bodies and local authorities about what is in a person's best interests when a decision is being made about serious medical treatment, or before certain types of accommodation are provided. The Government also propose to provide £6.5 million to fund the arrangements, but that is only for persons without friends and families—the "unbefriended".

9.15 p.m.

Much of that is clearly good and should be welcomed, so I applaud the Government as far as it goes, but concerns remain. Groups such as the "I Decide" coalition and the Making Decisions Alliance have been at the forefront in expressing those concerns. There are worries that what the Government call the independent consultee service could cause confusion by becoming a rival to the existing independent advocacy services. Those groups believe that there is no need for two such services, and that is why the amendment that my noble friend and I have tabled would replace all the references in the Bill to independent consultees with "independent advocates". Advocacy services already fulfil the role of independent consultees and make representations to decision-makers. There is no need for a completely new service, with a completely new title to explain what it does.

There is also concern about the restriction of the independent consultee service simply to the unbefriended. If that service is to involve highly trained, skilled and experienced staff, why deny it to those people who have family and friends? Such a service would be particularly useful where there are disputes with families. Those who lack capacity, whether befriended or not, would surely benefit from the expertise of trained advocacy staff. Where the person lacking capacity is befriended, it is envisaged that the advocacy staff would play a complementary role, adding their expertise and training to facilitate the process.

I recognise that an independent advocacy service must not be intrusive or inappropriately interfering in the lives of families and carers. The wording of our amendments may not be perfect, as the Minister will point out, but I am sure that the Government can strike a balance between providing expertly trained advocacy staff who can navigate the way through delicate situations and allowing families and carers to look after a loved one who lacks capacity.

The amendments are entirely consistent with the underlying ethos behind the Bill—it has been outlined again and again throughout our proceedings—as they seek to enable vulnerable adults to make their own
 
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decisions. The Government's independent consultee is available only once it has been established that a person lacks capacity, but the experience of the existing independent advocates is that, in many cases, someone is thought to lack capacity but is able to express their views when given the appropriate support. The amendment tries to extend the principle of independent advocacy to support people during the process of determining whether they lack capacity, as it will often turn out that they have capacity if given support.

The amendment also seeks to make clear in the Bill that the overriding function of independent advocacy is to support the individual, rather than the decision-maker. I therefore hope that it will commend itself to the Government.

Lord Pearson of Rannoch: It will be clear from what I said at Second Reading and on the second day of Committee—Official Report, 27 January, cols. 1473–79—that I have some difficulty with this group of amendments. That is particularly so, alas, with Amendment No. 142, which is in the names of the noble Lord, Lord Alton, and the noble Baroness, Lady Masham. Both noble Lords will know that I am extremely reluctant to disagree with either of them, as I am usually among their most fervent admirers. Indeed, I can see that their amendment and the others in the group may be perfectly sensible when applied to most of the categories of people covered by the Bill. But the Committee will remember that I speak for the lifelong intellectually impaired, particularly those who are more severely disabled from birth.

For that category of people, it is most important not to empower professional carers—including, as I understand them, the independent advocates introduced by the group—against the dedicated and knowledgeable family carers who are usually the best people to take decisions on behalf of their relatives.

I trust that your Lordships will agree that I was supported in that principle by the noble Baronesses, Lady Howarth of Breckland, Lady Knight of Collingtree and Lady Finlay of Llandaff, in Committee on 27 January. The whole problem was well set out by the noble Baroness, Lady Pitkeathley, at Second Reading on 10 January (at col. 69 of the Official Report). The Minister seemed to be in general agreement with the points that we made and indicated that the Government would cater for them in the code. She has also been good enough to write me another letter, but it has not yet arrived—hence this intervention.

Foremost among our worries is that considerable disagreement and anguish has been caused in the past when professional carers sought to impose their own agenda against the wishes of family carers who know the person best. Speaking for them—and I am one of them—we certainly would not want independent advocates to be given the powers envisaged in Amendment No. 142. We would be very depressed if independent advocates had to be available,


 
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Nor would we want an independent advocate to be mandatorily on parade to,

our relative,

Nor would we want an independent advocate's assistance to express our relative's,

I could continue further into Amendment No. 142, but I trust that Members of the Committee get the gist. I repeat: I recognise that all of those aims may be laudable for other categories of people covered by the Bill—perhaps the vast majority—but not for the people I represent.

I am aware that there may be a number of noble Lords who doubt whether family carers will always be the best interpreters of their relatives' wishes. Some noble Lords may feel that in some cases, surely, the professionals are likely to know better than the family. I accept that that can happen, especially with less impaired people, who may find that their families are over-protective. Indeed, as I mentioned at Second Reading, we heard articulate evidence of that in our Joint Committee hearings on the Bill. But for the people I represent, I assure your Lordships that it is rare indeed for the family carer to get it wrong and the professional carer to get it right. In support of that contention I would point out that our intellectually impaired people are often open to suggestion, even from people they do not know at all well. It is not easy to get their consistent view on things and it takes time, patience and knowledge to sift the wheat from the chaff.

I should also mention a technique called FAC, facilitated active communication, which was enthusiastically supported by a number of advocacy groups and which purported to be able to ascertain the wishes of people with severe learning disabilities. I understand that a few years ago in Wales, a Professor Fels conducted a number of studies which showed that in every instance, I believe, it was the facilitator's views and opinions which emerged, not those of the individual concerned. So, if you have advocates paid by the local authority or NHS trust, it is likely that the voice which emerges will be theirs.

I have spoken at some length and I fear that my comments will apply in mutatis mutandis to the next two groups of amendments at least. In order that I do not take too much of the time of the Committee and begin to sound too much like a cracked gramophone record, it would be helpful to know if the Minister has taken on board and accepted the burden of my song. It may be that I have misunderstood the position and independent advocates and other professionals will not be able to cut across the wishes of family carers in the way that I fear. It may be that the Minister's letter, when it arrives, will confirm that the code will cater for the point that I and other noble Lords are trying to make.
 
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In short, any firm assurance that the noble Baroness can give this evening would considerably reduce my future contributions to your Lordships' proceedings on the rest of the Bill, which I confirm we otherwise support and for which we are, indeed, grateful.


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