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Lord Alton of Liverpool: Listening to what the noble Lord, Lord Pearson, and my noble friend had to say, I think that there is an argument that we have to appreciate and understand families who are giving loving support and who are advocates for those they care for. I would not want my amendments or those of my noble friend to conflict with that in any way. I am happy for continuing discussions to take place about that. Unbefriended people who have incapacity for various reasons or are impaired for other reasons and do not have people like the noble Lord to care for them—the issue that the Minister has just addressed in her response to the debate—raise another set of issues. That is where we need to focus our attention. I hope that between now and Report the Minister will be able to do so.

Baroness Barker: I thank all noble Lords who have taken part in this debate. I must confess that I have had considerable difficulties. There are some things that I would like to have discussed but I think that they are more properly left to another group of amendments.

However, one thing has become absolutely clear; that is, the need to work out a common definition of advocacy. I am about to do something that I am sure a detail in the Companion states I should not do. I am going to say that in 1993—the date may be wrong—the noble Baroness, Lady Pitkeathley, was a member of a working group which I think was partly sponsored by the IPPR and which came up with a definition of "advocacy". I know that I quoted it in 2001 during the passage of the Health and Social Care Act and I keep coming back to it.
 
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When I talked about corruption, I meant that the Government seem to come up with different approaches to avoid giving a definition of "advocacy" and how it is provided. I was particularly struck when the noble Baroness was talking about advocacy plus. I do not necessarily disagree with what she was saying, but I am not sure that that is what advocates do. Advocacy is a specific function. The noble Baroness was talking about stuff that was way off and in the realms of good practice and good communication, which is the duty of those providing services to or dealing with people who lack capacity. That is not the same as advocacy.

In a way I have tremendous sympathy with what the noble Lord, Lord Pearson of Rannoch, says. I have no doubt that for a great many people who lack capacity the best advocates in the world would be their families. I am not sure that that is the case for all of them. I do not want to have a big fight about a name, I think that it is much more important to establish what the person is there to do and on whose behalf he or she performs that function.

The definition of advocacy to which I referred made it absolutely clear that a person is independent and that it is his or her job to enable somebody who, for whatever reason, lacks capacity to make his or her wishes known. That is what they do; it is as though it were their wishes. That is separate from carrying out all the bits of good practice that the noble Baroness talked about.

I am not sure that we have reached a solution, but I think that the next set of amendments to be introduced by the noble Lord, Lord Rix, may take us closer. I do not think that calling this function advocacy is at all cosmetic. On that note, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Rix moved Amendment No. 130:

The noble Lord said: I rise to speak to the amendments which were to be moved by my noble friend Lord Adebowale, who unhappily cannot be in his place this evening. The amendments are Amendments Nos. 130, 131, 136, 139, 144, 145, 147, 149, 151, 153, 157, 158, 160, 162 and 186. Noble Lords will note that in theatrical terms my noble friend Lord Adebowale is top of the bill with these amendments, while I am merely the understudy—for the very first time in my life, I hasten to add. I therefore beg my fellow small-part actors to speak any lines in the script which I fluff during my performance.

In my Second Reading speech I called on the Government to rename the independent consultee service, using the word "advocacy". The Minister kindly wrote to me, making clear that the Government were not wedded to the term "independent consultee" and I am delighted to hear officially that this is now to change.

I also realise that much has just been said about advocacy. That has rather shot my fox, or rather the fox of my noble friend Lord Adebowale, but I shall plough on as best I can.
 
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I also made clear in my Second Reading speech that I felt that the funding for independent advocacy under the Bill was woefully inadequate. I need to place clearly on the record the level of disappointment felt by disability rights campaigners who have supported the Bill from day one. I am still hopeful that the Department of Health might be able to find a little more for this vital service.

As I understand it, under the Government's plans for the function and scope of the independent advocacy service—I cannot get it quite right; the independent mental capacity advocacy service, is that right?—of the additional £6.5 million per year in funding, approximately £3.4 million would be earmarked to finance independent advocacy provision for befriended people in a range of situations, with this range of situations to be decided through consultation. I ask the Minister to provide as full an explanation as possible about this consultation process and the type of situations which the Government feel are likely to be covered to assist me and those of your Lordships who are clearly interested in the same subject.

9.45 p.m.

I hope that the Minister will be able to tell us more about the training that independent advocates will need to go through, who will go through such training, how the training will be funded, how national training standards will be maintained and, more generally, how the Government intend to cut and manage the funding cake. Will the money be held and distributed centrally, for example, or will it be given to local authorities to distribute? I certainly believe that the noble Lord, Lord Pearson of Rannoch, has posed a question about family advocates that will be difficult to answer.

Further consideration is needed on whether an independent advocate should be available for befriended people, if one is requested by any of the parties involved, when decisions about serious medical treatment and accommodation are to be made. The amendments today reflect a disability sector that is on the whole being realistic, practical and constructive, as has been the case, I hope, throughout this legislative process. I hope that the Government will accept them or promise to return with their own alternatives on Report. They are precisely what are needed to revitalise support for the Bill throughout the disability sector. I beg to move.

Baroness Barker: I am a mere member of the chorus on this occasion. I support the amendments, spoken to so ably by the noble Lord, Lord Rix. My name is attached to many of them.

I wish to speak to Amendment No. 186 in particular, which ensures that an advocate can apply to the Court of Protection on behalf of an individual without capacity, without having to seek permission for the application to be heard. The Making Decisions Alliance gives three important reasons for that. The first is the very serious nature of the decisions that people are making; for example, altering where somebody lives.
 
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The Government have managed to drag up from somewhere the awful phrase "the unbefriended"—words fail me. The second reason is that, if the independent advocate remains available only to the so-called "unbefriended", it is far less likely that they will have somebody to make an application to the court on their behalf, including a deputy. By definition they will not have a donee under an LPA. We need not go into the third reason, the Bournewood case, in great detail because the noble Lord, Lord Carter, dealt with it at length recently.

I must say quite strongly that the provision of advocacy only for somebody who has nobody in the world is simply wrong. I have been searching for some weeks for a way to explain the point, and an example suddenly came to me the other day. Some years ago, in the street where I used to live, I was stopped one night by some strangers who asked me whether I knew anything about a neighbour who lived up the road. All I knew was that he had had a stroke and was in hospital. I did not know much more, and subsequently I was very pleased that I did not, because it turned out that they were family members who had suddenly found out about the situation from abroad. They were asking questions because property was involved: the local authority was selling the property to pay for necessary care.

I am not sure whether the definitions of how far "family" goes and those who are "unbefriended" are subtle enough to deal with such situations. It is important that the definitions in the Bill should be sufficiently robust to ensure that people are not abused.

I know that the Minister has placed in the Library a copy of the consultation paper, which is about consultees. I want to ask the questions that the noble Lord, Lord Adebowale, would have asked on that matter. The original aim of the consultation paper was to provide a right for an advocate in the following situations; namely,

Is that the absolute extent of the consultation or is there scope for extending advocacy beyond that and beyond the issues of serious medical treatment and changes of accommodation? I could go on at some considerable length, but I will not. I would simply ask the noble Baroness to take those things into consideration when she makes her decisions.


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