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Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (Expansion of Role) Regulations 2006

My Lords, I thank the Minister for introducing these regulations, which we welcome. Because of his comprehensive and helpful introductory remarks, he will be pleased to hear that the points I wish to make about the regulations are few. For someone who lacks mental capacity, and for whom major welfare decisions must be taken, we all agree that there must be someone capable of making an independent, balanced judgment about their best interests. That is so not only because of ECHR considerations, but also because the principle of giving maximum empowerment to vulnerable people runs through all recent legislation on disability in its various forms. The sections of the Mental Capacity Act covering independent advocacy therefore met with universal approval. It is to the Government’s credit that they chose to include them. I also acknowledge the thoroughness of their consultation. We are nevertheless in somewhat experimental territory, in the sense of knowing how well these arrangements are likely to work in practice. It is still early days. I understand that there have been pilot projects, and imagine that their results have been factored into the department’s thinking on both the regulations and the associated code of practice. Perhaps the Minister could confirm if that is right and, if it is, tell us what lessons have emerged from the pilot areas. I say that because the workings of these regulations will need to be evaluated after a reasonable period of time. We need to be reassured principally of two things: first, that they are adequate in addressing the advocacy needs of mentally incapacitated people who have no close relatives or friends and for whom no deputy has been appointed by the court; secondly, whether there are any situations or groups of people, other than those specified in the Act or regulations, to whom the provisions could usefully be extended. The Making Decisions Alliance—a consortium of 40 charities with a direct interest in the matters covered by the Mental Capacity Act—has flagged up various possibilities in that context; for example, situations where there are disputes between family members or between the family and the local authority, or cases where there is a clear conflict of interest. We must be mindful of resources in all of this, and I would not ask the Government to make an open-ended commitment to an unlimited number of IMCAs for all imaginable types of situation. However, the Government need to say that they are willing to learn from experience and that they will not close their mind to the idea that independent advocates should be available in circumstances wider than those currently envisaged as a matter of course. I am of course aware that the regulations allow for local authorities and NHS bodies to exercise their discretion to instruct independent advocates in situations where that could be of particular benefit to an individual. That is certainly welcome, but my natural caution tells me that theory and practice may turn out to be different things. Both local authorities and the NHS are experiencing tight funding constraints. When funding is tight, statutory bodies tend to resist the notion of paying for things other than those for which they have a legal obligation. In many areas of the country, it is therefore likely that we shall see independent advocates appointed only where there is a statutory duty to do so. We may well see uneven practice emerging, depending on the availability of funding in local areas. I hope that the code of practice may go some way towards countering both those tendencies, but there is a limit to the extent that we can rely on it to do so. It must remain a concern. That is surely one reason why there is merit in thinking about a national strategy on advocacy for all client groups, as the Making Decisions Alliance has been recommending. One way or another, there is a range of policy initiatives on advocacy emanating from a number of sources within Government, each of them distinct in their own way. We may be debating even more initiatives when the Mental Health Bill eventually reaches us. Who knows? I wonder whether the Minister can say what work, if any, has been going on to bring these different strands of advocacy practice together under the same policy microscope, as it were. It is only by doing so that common themes and objectives, as well as problems, can be identified. Independent advocacy is an important function in our national life. It deserves to be dignified with a co-ordinated national approach. Regulation 3 relates to care reviews following decisions being taken about medium-to-long-term accommodation for a mentally incapacitated person. Is it correct that these provisions apply to all care reviews, including those where the original decision about a person’s accommodation was made without an advocate being involved? For example, let us suppose a local authority had placed the person in accommodation at some time in the past, perhaps with the active agreement of the person while he had mental capacity but he has since lost capacity to decide about a move. In other words, does the regulation allow the NHS body or local authority to instruct an IMCA where that body or authority is already closely involved in arranging for the person’s accommodation? Finally, I ask the Minister about the resources that will underpin these regulations. The Explanatory Notes state that advocates are to be funded by ““new money”” from the Department of Health. Can the Minister confirm that this is not a case of robbing Peter to pay Paul, and that the budget for advocacy will not erode the mental health budget more generally? Secondly, can he say something about standards of competence for advocates, how those standards are to be enforced and how advocates are to be suitably trained and monitored? Lastly, how will the Government ensure that there are enough IMCAs to do the job and that their geographical spread is such as to meet demand as it arises? I emphasise our support for these regulations, and look forward to the Minister’s response.