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Baroness Greengross: I rise to speak on behalf of another group with a lack of capacity—adults and older people, in particular—to support the last point of view, but for a different reason. We must be careful and think back to what has been said on several occasions during this debate—that is, the advocate is there to represent the views of an individual who lacks capacity and not to make a judgment on whether those views are correct.

We have said all along that we are promoting the greatest possible capacity to make decisions for the person who lacks capacity. Very often, they may not be the kind of decisions that are welcomed by the advocate. To me, that defines an advocate. Amendment No. 142 gets in the way of the advance decision-making that someone might carry out, and it is not the job of the advocate to come along and assist the person when such a decision has been made in advance. I believe it is the job of the representative given the lasting power of attorney to do that and not the advocate. The advocate is there simply to fight for the right of the person to have his or her views strongly put forward.

Therefore, I think that we are muddling several different things. The noble Lord gave a very moving account of the sort of people whom he represents, and it is a very difficult decision to make. But, even then, there could be times when it is not in that person's best interests always to advise about welfare or care because there could be a conflict of interest. All kinds of things could arise, and I think that we have to be very careful that we do not deny something that we have already said we want.

Earl Howe: I want to speak in support of the amendments that propose a change of name. In the Minister's shoes, one might well hesitate over whether it is worth changing a name. One might ask: what does a name matter? Here, I think that it does matter because what the Bill is seeking to achieve in these provisions is at odds with the flavour of the nomenclature. The word "advocate", which has an active sense of someone speaking on behalf of and in defence of another person, has a completely different connotation from the word "consultee", which is essentially passive and carries no sense that there is a person on whose behalf and in whose corner the consultee is acting.

As has already been said by the noble Lord, Lord Alton, advocacy services are already provided by local authorities, as well as through the NHS and other bodies. If we now introduce another brand of advocacy, especially for mentally incapacitated people, I wonder whether the distinction that that will create will serve a useful purpose. The kind of advocacy with which we are dealing here is surely not so very different from any other kind of advocacy.
 
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Artificial dividing lines between advocates and independent consultees are unhelpful and probably confusing. I think that that is all the more reason to favour a change of name.

I too confess to having problems with Amendment No. 142. I have considerable sympathy with the points made by my noble friend. I have had several letters from people worried that advocates will be foisted on incapacitated people who have family and friends and have no desire to receive advocacy support. People who are genuinely without anyone to argue their case for them when serious NHS treatment is in prospect or when they are about to move into local authority accommodation are one thing; people who have family and carers who are quite capable of navigating their way through the system on behalf of someone and who do not need advocacy should not be forced to receive it, whether they like it or not. I hope that it is not the Government's intention to allow that, but perhaps the Minister would be kind enough to banish the apprehensions that undoubtedly exist.

9.30 p.m.

Baroness Ashton of Upholland: It has been a helpful debate. As the noble Baroness, Lady Barker, said, I did commit at Second Reading to consider a name change. I did not table my amendments at this stage because I wanted to have the debate. The noble Earl, Lord Howe, is right: on occasion, one finds that the name that one has, with good intent, given to something is at odds with what people wish that thing to be and with how they view it.

The proposal that we have for the name is "independent mental capacity advocate". That has been discussed with the Making Decisions Alliance, which, as I understand it, liked it well enough. I will reflect on what has been said, but the Committee will appreciate that that is precisely why I did not table the amendments at this stage.

I recognise what is being said about the need not to differentiate too much, except in what the noble Baroness, Lady Barker, said about mental health. In a sense, however, one is always seeking to protect resources as well, and there is an issue about making sure that it is seen as a service.

I want to pick up on another reason. It is important that I spend a short time explaining what we sought to do. I was an enthusiastic advocate for what, I believed, lay behind the proposals from the Department of Health about the independent consultee. Leaving aside the name—I have accepted complete defeat on that—it was, as my honourable friend Rosie Winterton said in another place, concerned with "advocacy-plus". It was designed not only to work alongside individuals to determine their wishes, feelings and desires but, in a sense, to broaden that out to give them access to records, so that they could examine what the decision maker proposed, perhaps visit particular locations, and talk to anybody around the person. This particular group would be unbefriended, but they might live alongside people
 
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who knew them a little, and there would be professionals working with them. It was designed to help in the development of greater knowledge about the situation, in order to give advice to the decision maker.

We believed that what we were creating was something more. Training would be offered to those individuals, many of whom would be advocates. I accept that we would be building on a core group of highly experienced people with high levels of skill. They would be asked to do a job that went further than that traditionally associated with advocacy.

Having said that, I accept that noble Lords rightly want to see the emphasis in the definition of the role put on what noble Lords present and I would understand as an advocacy role. I think that noble Lords would accept that, outside the House, there are differing views of what "advocacy" means. In the health service, I met many different groups of people who were advocates but who performed quite different roles, even if the core was the same.

I would not want the Committee to feel that, in developing the service and the proposals that we had, we were doing anything other than trying to build a better service. I hope that, when I table the amendments on the name and look to amend the role, we will not lose everything about those proposals. I do not think that it is about corruption, the word that the noble Baroness, Lady Barker, used—far from it. It is something that I think is truly exciting. I hope that, between now and Report, noble Lords will reflect on the way that I have described the service, so that we can have the opportunity to discuss whether what I have said about what we sought to do has any merit. It is important and potentially quite exciting. I will change the name, and I will table amendments relating to the role. I have no difficulty with that, but I ask noble Lords to consider what I have said too.

The third set of issues was raised by the noble Baroness, Lady Greengross, and the noble Lord, Lord Pearson, and it was about how we develop this service. The noble Lord was absolutely right to raise the question; I have owed him a letter for a few days only. That is not because I have been tardy, but the weekend got in the way and I was on government business for most of it, so I could not have signed a letter anyway.

I say to noble Lords, and particularly to the noble Lord, Lord Alton, that there is no question of us wishing to do anything other than to extend this service. We estimate that we have about £6.5 million available, and that the group of people who are unbefriended is about 20 per cent of those who lack capacity. We want to expand the service and to use the other half of the money to expand the group. Of course, we are always searching for more resources.

We will expand the service through the regulation-making power in the Bill precisely because we want to have dialogue with those most closely involved with individuals, groups and organisations who feel very strongly about how we best develop it. The example given by your Lordships is where there are disputes between families. That might be an appropriate way
 
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forward. On the other hand, we are very conscious that where a family is working closely with a loved one, supporting him and providing advocacy for him, introducing an independent person who the family has never seen before might get in the way of that. I am not sure that it is the best use of resources, even if it were appropriate. I am sure that it would be inappropriate for many families. That is not what we want to do.

None the less, there are people who are not technically unbefriended, or who have relatives, but who are unsupported. There are also families comprising an elderly couple struggling to know what to do when one of them has a degenerative disease and is losing capacity. An elderly partner is desperately trying to work out how best to support the other partner. It is an absolute commitment on our part to expand the group and to work with the organisations which have the greatest expertise in this area. We want to expand the group in the right way to protect and support the most vulnerable and to cover as many of those people as we can, while not getting in the way of families who are perfectly able to support their relatives.

I shall leave my comments there because there are other elements in these amendments. Those were the areas on which noble Lords focused and I hope that I have given a sufficient answer to enable the noble Baroness to withdraw her amendment.


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