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

Volume 685: debated on Monday 9 October 2006

rose to move, That the draft regulations laid before the House on 13 July be approved [34th Report from the Joint Committee].

The noble Lord said: My Lords, in considering these regulations, the House will return to issues that were discussed extensively during the passage of the Mental Capacity Act. The regulations are being made under the provisions of that Act, which provides a statutory framework to empower and protect vulnerable people who are not able to make their own decisions.

The Act introduces the Independent Mental Capacity Advocate service, a new statutory service, which is independent of both the NHS and local authorities. The aim of the IMCA service is to provide high-quality advocacy to support and represent vulnerable people who lack capacity to make important decisions on serious medical treatment and a change of accommodation.

Under the Act, NHS bodies and local authorities have a duty to consult the IMCA before making certain decisions where there is no one other than a paid carer whom it would be appropriate to consult in deciding what would be in the person’s best interests. The regulations specify additional circumstances where the NHS body or local authority may instruct an IMCA.

We consulted fully on how the regulation-making powers of the Act should be used. We have also consulted further with stakeholders on the regulations themselves. The regulations have been laid before Parliament alongside a further set of regulations—the general regulations, which are subject to the negative procedure. The general regulations cover operational and implementation details, the role and functions of the IMCA and a definition of serious medical treatment. A draft code of practice on the Act, including a chapter on the IMCA service, will also shortly be laid before Parliament.

The consultation responses showed very clearly that there were other situations beyond those listed in the Act relating to a change of accommodation and serious medical treatment, where a person who lacked capacity to make serious decisions may be particularly vulnerable. These regulations specify two important new circumstances where NHS bodies and local authorities have the discretion to instruct IMCAs to represent people who lack capacity. Those are care reviews and adult protection, but these regulations do not impose a statutory duty to instruct IMCAs in these circumstances. They are discretionary powers.

Regulation 3 allows for an NHS body or local authority to instruct an IMCA to support and represent a person who lacks capacity to participate fully in the decision where a care review is proposed or is in process, and where the person has been in the accommodation for 12 weeks or more and it was not made as a result of an obligation imposed on the person under the Mental Health Act.

Of course the requirements in the Act relating to the appointment of an IMCA will also apply. That is the person who has no appropriate family or friends who could be consulted, and the person must be unable to fully take part in the care review because of impaired capacity.

Regulation 3 does not apply to arrangements made as a result of an obligation imposed on the person under the Mental Health Act 1983. This is because that Act contains its own safeguards and rights of appeal.

Regulation 4 provides that an IMCA may be instructed to support and represent a person who lacks capacity in cases of abuse where adult protection proceedings have been instigated, and it is alleged that the person is or has been abused or neglected by another person or that he is abusing or has abused another person.

The regulations provide that an IMCA may be appointed in these cases where protective measures affecting the person have been taken, or are proposed, by an NHS body or local authority. They must have been made in accordance with adult protection procedures which have been set up under the “no secrets” guidance issued in 2000 by the Department of Health under Section 7 of the Local Authority Social Services Act 1970.

Noble Lords will see that there is a difference in the conditions between Regulations 3 and 4. Whereas Regulation 3 provides that an IMCA may not be instructed where there is someone whom it is appropriate to consult in adult protection cases, under Regulation 4 an IMCA may be appointed even where the person has family and friends whom it might be appropriate to consult.

I know that there is a great deal of interest in ensuring that the IMCA provides effective safeguards for people who lack the capacity to make certain serious decisions. That is why we wanted to be sure that there was time for proper debate on this expanded role, hence these regulations are affirmative. We also listened carefully to those who responded to the consultation on the IMCA service. Many wanted safeguards for adults who faced abuse, including those cases where it may be the very people who have care of the person who may be accused of being the abuser. Regulation 4 addresses these issues.

Regulation 5 specifies that the extension of the IMCA role requires that NHS bodies and local authorities must consider for each eligible individual whether they would benefit from this additional safeguard. In some cases, for example, where a person already has an advocate actively involved, the local authority may decide that an IMCA may not be necessary. The extension of the role allows an IMCA to be instructed, but does not require one in all cases.

Secondly, where an IMCA has been instructed, the NHS body or local authority must take into account the information provided by the IMCA in making any relevant decision that results from a review of care arrangements or protection measures. This is intended to ensure that the views of the IMCA are properly taken into account when an important decision is being made.

These regulations are part of a package of measures, including the Act itself, the general regulations, the code and the commissioning guidance, that together provide the framework for implementing the IMCA service. The service will, as a result, provide an important new service: a statutory advocacy service targeted at some of the most vulnerable people in our society. It will provide a new safeguard for them when facing particularly important decisions. We aim to implement the IMCA from April 2007. I beg to move.

Moved, That the draft regulations laid before the House on 13 July be approved [34th Report from the Joint Committee].—(Lord Warner.)

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.

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 legislation of which this House should be most proud and 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.

My Lords, I am grateful to noble Lords for their support for the regulations. Both noble Lords opposite raised issues about what we have learned from the IMCA pilot schemes. The pilot schemes have been working since January 2006 with people with dementia, brain injury, a learning disability or mental health needs where important decisions about medical treatment and residence are being made. We will be producing guidance for the national implementation of the IMCA service, which is based on the experience of the pilots. Cambridge University is undertaking a cross-site research project aimed at learning lessons from the seven sites and producing practical guidance. The short answer is that we will be drawing on the pilots in that way. The pilots will stop in April when, as I said in my opening remarks, the new service comes into operation across the country.

In answer to another question, we have given a commitment both to monitor the service and to commission an evaluation of the new service across the country after the first year. That has been agreed to; we are committed to that; and we will take it forward.

Yes, there is new money. The IMCA is being funded from that new money by the Department of Health through local authorities. There is £6.5 million for IMCAs and £12.5 million for the Act itself.

The noble Earl, Lord Howe, asked whether we are pulling together the threads of a national strategy for advocacy. That is an important issue, but it is also important that advocacy services are bespoke to the sets of services that they are trying to provide and the needs that they are trying to meet. However, the different strands of advocacy will be brought together with one unified training qualification for all advocates. So we are moving in that direction, but I emphasise the importance of “bespokeness”, if I may coin a new word, to ensure that people's particular needs are met.

On care reviews, yes, IMCAs can work with people who have not been previously involved with an IMCA. We have given that commitment. Are there enough IMCAs? I am reliably advised that there is great interest in the role and there are lots of applications. On who will make sure that knowledge is available locally, each local authority is responsible for advertising the service—making its existence known—and local authorities have already started work in this area and are gearing up for those new responsibilities.

The noble Baroness, Lady Barker, asked whether an IMCA should be appointed where a local authority is appointed as the deputy. The advice that I have been given is that it will be rare for the Court of Protection to appoint a director of social services as a deputy because of the potential conflict of interest. Where it does so, the court must be satisfied that he or she can perform his or her duties impartially. I shall look further into that and if there is any more that I can usefully add, I shall write to the noble Baroness and the noble Earl, Lord Howe.

The noble Baroness also raised the issue of how the IMCA relates to the Bournewood situation. My understanding is that the Bournewood proposals would simply add another situation in which an IMCA would be appointed. We agree that guidance and training will be important and welcome the continuing involvement by all stakeholders in the Bournewood implementation advisory network. We are trying to join this together.

I hope that I have answered most of the points made by noble Lords and that, after this constructive discussion, we can pass the regulations.

On Question, Motion agreed to.