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Baroness Ashton of Upholland: I shall try to find another way of saying what I have already said. I recognise that in all these groups of amendments noble Lords are looking for ways in which we can try to define how we will extend this service. I say at the outset that the Government's ambition is to have good consultation with those who can help us extend the service to the most vulnerable in the most difficult situations. It is my ambition that that is where we begin, not where we end. I believe there is a general agreement in the Committee that we should protect the most vulnerable first and move outwards and onwards to try to capture more and more people.

The difficulty with the amendments is encapsulated in the point made by the noble Lord, Lord Pearson of Rannoch; namely, that the amendments would capture people who would possibly not wish to be captured by them. Further, I am not convinced that at this stage they would constitute the best use of resources. Until we have consulted with others I do not believe that we are in a position to say that a particular group should come next on the list of those who the Government wish to support as opposed to another vulnerable group who might be identified. For that reason, and that reason alone, I resist the amendments but with the commitment I have already given that we shall consult widely—I very much welcome any noble Lord who wishes to participate in that discussion—to see how best we can support those who are in need of that support. Given the spirit of those remarks, I hope that the noble Lord will withdraw the amendment.

Lord Rix: In that spirit, I am very happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.15 p.m.

[Amendments Nos. 144 and 145 not moved.]

Clause 35 agreed to.

Clause 36 [Duty of NHS body to seek advice before arranging accommodation]:

[Amendments Nos. 146 to 154 not moved.]

Clause 36 agreed to.

Clause 37 [Duty of local authority to seek advice before arranging accommodation]:

[Amendments Nos. 155 to 162 not moved.]
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Clause 37 agreed to.

Clause 38 agreed to.

Clause 39 [Power to adjust role of independent consultee service]:

[Amendments Nos. 163 and 164 not moved.]

Clause 39 agreed to.

Clause 40 [Codes of practice]:

Baroness Barker moved Amendment No. 165:

The noble Baroness said: We come to what I consider one of the most important parts of the Bill. It covers one of the most important elements in determining whether the Bill works in practice—the codes of practice.

In preparing to move this amendment, I found myself wondering how many people will see the codes of practice and how many will see the Bill. I rather suspect that thousands and thousands of people who see the codes of practice will never see the Bill. I therefore believe that it is important that we spend a little time on the subject.

I preface all my remarks on the following provisions by repeating the thanks that I gave on Second Reading to the Bill team for giving us a draft code of practice to look at before we considered the Bill. That is very welcome. It has been enormously helpful to see the sorts of information that will be given to professionals—many of whom will only very rarely come into contact in their work with someone who lacks capacity.

The purpose of the amendment is to do something that is very simple but also very important—to ensure that the code of practice is in a format that is accessible to the one person who matters, the person who lacks capacity. I have been enormously impressed throughout our consideration of the Bill at the way in which we have been able to see things such as easy-read versions of the Bill and consultation documents. At times I have found those documents immensely valuable.

I consider it pretty much essential that this provision is passed. We cannot begin telling other people what to do if we are not prepared to do it ourselves. That is why we should adopt this fairly simple but important amendment. I beg to move.

Earl Howe: I should like to speak briefly to Amendments Nos. 167 and 168 which are grouped here. These two amendments address closely related issues. My question to the Minister is whether she will consider including within those matters that the Lord Chancellor must include within a code of practice guidance relating to research.

I am surprised to see no mention of research matters within subsection (1) given the degree of sensitivity surrounding them and the fact that the appropriate body as mentioned in Clauses 30 to 32 has not yet been defined in regulations. I should have thought that research ethics committees and other authorising bodies will need and expect guidance on issues relating
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to research as much as will the researchers themselves. We have already referred to a number of practical, operational issues that cannot be covered in the Bill but which are of great importance in the context of achieving propriety and working within the spirit of the principles contained in Clause 1. I should be grateful if the Minister were able to say that she will consider my amendments in a positive way.

Baroness Greengross: I support this group of amendments, and I have a couple of additional comments to make. The language is of ultimate importance in the setting out of the code. It is also important that the code should be brought to the attention of anyone who is considering appointing a lasting power of attorney so that those people understand the way in which this will work in practice, which will help people to decide what powers they want to give to a LPA. Will the lasting power of attorney instrument draw attention to the code of practice, so that the relevant sections can be read by both the donor and the donee before a lasting power of attorney is drawn up?

Is this the moment to talk about appointees as well? If the appointees stay with the Department for Work and Pensions, will the regulations be changed in any way so that the appointee is bound under the code as if he had been appointed via the Court of Protection? That is important as well.

Given that the code would be so significant in the working of the Act, affirmative resolution is vital, certainly as regards the first edition of the code, prior to the Act coming into force. In practice, codes are not often changed, and this would not be a huge burden on parliamentary time. To debate any changes that are made would enable Parliament to understand how the Act is working, so that it can be changed, or changes can be made to the code, if that is found to be advisable or necessary and if experience has shown that some aspects of the code do not work as intended.

Lord Alton of Liverpool: I support Amendment No. 167 proposed by the noble Earl. I know that the noble Baroness dislikes lists, but in the lines of WS Gilbert, she does not have this particular group on her list; she has seven other groups on her list, but she does not have people involved in research. Given the gravity of the debate that we had earlier today and the issues that were raised, the noble Earl is right to draw our attention to this omission, and I hope that when the noble Baroness replies she will be in a position to rectify that.

Baroness Ashton of Upholland: I shall endeavour to be as positive as I possibly can in the light of the invitation to be so that I felt was in the words of, in particular, the noble Lord, Lord Alton. I say to the noble Baroness, Lady Greengross, that I will not cover affirmative resolution if that is all right, because it is in the next group of amendments. I would be pre-empting, which I am sure is bad parliamentary procedure.

We will produce an accessible version in various formats when we go out to public consultation following Royal Assent. We will make the final code
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available to people who may lack capacity. It is our intention to work with our stakeholders to ensure that we achieve that successfully. It does not need to be in the Bill because such things are not in Bills, but noble Lords have my firm commitment. The only reason that it has not been produced yet is that we produced a draft code specifically for Parliament at this stage, so that noble Lords would have the opportunity to look at the draft code. I am grateful for what the noble Baroness, Lady Barker, repeated, and to the Bill team who have done a huge amount of work. It would have been impossible and wrong for the Government not to have brought this code forward as part and parcel of this process, and I am grateful that has been recognised. So, we will do it, no question, and we will work closely with people to ensure that we do.

Secondly, there is the issue about who is and who is not on the list. The noble Lord, Lord Alton, is right that this illustrates my problem with lists. We do not have those people on the list because Clause 40(4) lists the people who have a duty to have regard to the code. That includes people acting in a professional capacity. Those involved in medical research in relation to people who lack capacity are acting in a professional capacity. As they will be under the duty, the code will therefore need to provide guidance for them.

The reassurance that I will give is that the final code of practice will contain a chapter on medical research in relation to people who lack capacity. It is absolutely vital that it does. We would have to and will do that. As Members of the Committee have indicated, particularly the noble Baroness, Lady Barker, it will be the code that people read. Terrific though the legislation is, the thousands of people who will need to be aware of what it does will not read it.

I shall be happy to go back to see whether we would add anything by adding another group, if it would help the Committee, but we are back into my problem with lists immediately. The relevant people are covered because they are professionals. I am happy to discuss the matter but, in the mean time, I hope that with the reassurances that I have given the noble Baroness will feel able to withdraw her amendment.

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