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

My Lords, I, too, thank the Minister for his introduction to these regulations. Along with the noble Earl, Lord Howe, I was privileged to be one of the small band of people in this House who worked in some detail on the Mental Capacity Act. It is a piece of legislation of which this House should be most proud, an excellent piece of work. That Bill was founded on principle. Because of the subject matter and the approach that the Government rightly took to it, the detail of the secondary legislation—the regulations, guidance and code of practice—were always going to be of considerable importance. It was a framework Bill. We must therefore spend time debating these matters, and I am glad that the Government have recognised that and afforded the time to do so. Another reason why we should give considerable attention to the matter is that throughout the passage of the Bill it was apparent that three groups of people each took a distinctly different view of the matter at hand. First, there were the people with family members whose capacity is severely limited and who, perhaps because of their experience, are disinclined towards what they perceive as the intrusion of advocates. Secondly, there were the people with limited capacity who equally feel that an advocate can be an intrusion on their rights and liberty. Then there are the organisations which work with people who lack capacity and which frequently come into contact with people who have been subject to abuse or discriminatory treatment, who on the whole take a much more positive attitude towards advocates. In trying to meet the needs of those three distinct groups, it is extremely difficult in practice to strike the right balance. That is the context in which we need to look at these provisions. I welcome the regulations, given that they bear the hallmark of work and views that have been changed in the light of practice and of consultation. But I need to make a few points. I should have stated at the beginning that I declare an interest as an employee of Age Concern England, which is a member of the Making Decisions Alliance. My first point—that there have been pilots—was referred to by the noble Earl, Lord Howe. I join him in asking the Minister to tell us what findings have come from the pilots so far. Will the Government give an undertaking to keep those pilots under review? It is only by seeing how the legislation works in practice that we can continue to improve it, even at this stage when it is being implemented. It is welcome that the regulations recognise that there will be circumstances, other than those envisaged when the legislation was passed, in which an independent mental capacity advocate is needed. I am glad that a discretionary power is given to local authorities and to health bodies to vary the circumstances in which an IMCA is appointed. I draw the Minister’s attention to the fact that the regulations specifically describe the situations in which an IMCA can be appointed. The guidance is much wider. That may not make a considerable difference to statutory authorities, but it may to the people who are the potential users of IMCA services. They may look at the regulations rather than at the guidance. What will be done to ensure that the extent to which this power is discretionary and available is made known to individuals who may use it? My second point is about the circumstances in which an IMCA could be appointed, particularly when a deputy has been appointed by the court of protection. We know that deputies are taking over the functions previously held by appointees, and that they will have both a financial and a welfare role in the lives of people who lack capacity. There could be a conflict of interest for a court-appointed deputy. Therefore, it is possible that for an individual’s interests to be best served an independent advocate might be needed, particularly when decisions are being made about precisely where care should be received. As the noble Earl, Lord Howe, said, social services departments are under considerable budgetary pressures, particularly on residential care, and it may be that the conflict for the person from a local authority acting as a deputy would be too great. The next area I need to ask the Minister about is clarifying the links between an independent mental capacity advocate provided under the Bournewood contacts and the Mental Capacity Act. Will he clarify the potential overlap between those different initiatives? I want to echo the point made by the noble Earl, Lord Howe, that while the regulations make clear that the Government see a priority in those who have neither friends nor relatives to look after their interests, there are occasions—it was always envisaged that there would be—when people need assistance; for example, where a person’s relatives are on the other side of the world in Australia, or where there are disputes within families. There is a need to make it clear, not just to local authorities but also to individuals, that they can in those circumstances have access to independent advice. Finally, I too want to ask the Minister whether the research from the pilots will give us an indication about the availability of advocacy and the ease with which it can be accessed. It is the Government’s intention, I understand, to recruit many of the IMCAs from existing advocacy schemes. The problem with that is that many advocacy schemes which exist within the voluntary sector exist on a very perilous basis. Getting funding for advocacy schemes is extremely difficult. From the pilots so far, what has been the level of demand? What has been the level of demand from people with relatives or friends? Is there an available pool of advocates to meet that need? With those questions, I too welcome the regulations.