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Meg Munn MP - Sheffield Heeley's voice in Parliament | Welcome
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Meg’s speech on 'Capacity'

Tuesday, October 12, 2004

Meg’s speech on the ‘Mental Capacity Bill’, given in the House of Commons 11th October 2004.



I want to say that the Bill is enormously important because it seeks to address the issue of capacity. It deals with how we should deal as a society with circumstances where people lack capacity and it is designed to do so better than we have so far.

I welcome the change in name from the Mental Incapacity to the Mental Capacity Bill, which stresses the positive side. The Bill must ensure that where people have capacity, they can make certain decisions, even though they lack the capacity to make other decisions. It is right to address concerns about issues of capacity. Anyone who has ever worked with or looked after people for whom capacity is a concern?either as a permanent feature of the person's abilities in life or where the person's faculties are deteriorating?knows that current legislation is complex and that there are considerable legal uncertainties. It is difficult to ensure that people are acting in the best interests of a person or indeed in a way that conforms to the person's view of how decisions should be made.

The Bill sets out some very important principles that recognise the need to support people who have difficulties relating to their capacity in order to make their own decisions whenever they can. One principle is that there must be an assumption of capacity. So often where we have worked with elderly people and those with learning or speech and communication difficulties, the assumption seems to be that they do not have capacity. We see that in our dealing with children and with adults?and we must stop making such assumptions. The Bill begins to pave the way for what my hon. Friend the Member for Blackpool, North and Fleetwood (Mrs. Humble) described as a change in attitude and a change in the way we work.

I want to talk more specifically about people with learning disabilities who face ongoing issues about capacity in their day-to-day lives. I am not talking specifically about patients in hospital or circumstances where someone faces a life or death decision, because I believe that the Bill goes wider than that and poses important issues for us all to address.

I chair the all-party group "Voice", which works closely with the all-party group on learning disabilities. It looks particularly into how people with learning disabilities can have a voice and be protected from abuse or other negative aspects in their lives. It seeks to help them to exercise decision-making powers wherever possible. Issues of capacity may well be lifelong issues. It is good to see that the Bill focuses on support and how to empower people to make decisions.

However, in common with other hon. Members, I want to express my concern that the Bill makes no provision for advocacy. Without advocacy, people with learning disabilities are likely to have their feelings and views ignored by those who take decisions about their lives. The Bill rightly accepts that people may have some capacity to make some decisions, but not others. It also rightly acknowledges that some people may be able to indicate a preference, even if they cannot make a decision. Without an advocate, though, there are no safeguards in circumstances where there is a difference of opinion between the person who is said to lack capacity and the decision maker.

I am concerned that the Government are in danger of creating confusion by using the term "independent consultee". The Bill says that the function of the independent consultee is to give advice to the body making the decision about the person's best interests. Their view could well be different from that of the person concerned. Advocacy means something different: it means putting forward the person's views and wishes, whatever they are. The person who is advocate stands aside from their own view and their own expression of what they deem to be someone's best interests. That is not their role. They help the person to express their views and wishes and, crucially, they are there to ensure that those views and wishes are heard.

That view may be "unwise": it may not be what a group of other individuals?whether they be professionals, family members or other supporters?might collectively sit around and agree to be in the best interests of the person. Nevertheless, it is that person's view. An adult is surely entitled to their view, whether or not they have or lack capacity. At the very least, that view should be heard.

Clause 4 sets out the criteria for determining what is in someone's best interests, which includes permitting and encouraging  "the person to participate . . . as fully as possible".  Without advocacy, however, a person may be wrongly assessed as not being capable of making a decision or communicating in the decision-making process. Moving straight to consultation without advocacy is, in my view, missing out something enormously important.

Finally, I want to raise issues about the concept of reasonableness in clause 5 because that notion also creates problems. As long as someone reasonably believes that a person lacks capacity and as long as they reasonably believe their decision is in the best interests of the person, they can make whatever decision they like. If a person is said not to have capacity, how can the decision be challenged? Who will challenge the decision on the person's behalf? We are not talking only about major issues?the specific treatment and life or death issues that we have debated in detail today?but about day-to-day happenings that determine lifestyle. For example, medication or other treatment may need to be ongoing for the person to live a full life.

For too long in our society, adults with learning difficulties have been judged by what they cannot do rather than what they can do. Empowering them to do more is important. In my view, advocates are essential to ensure that those people's voices are heard and properly considered along with the voices of others such as professionals and carers. I therefore ask the Government to give more serious consideration to the issue of independent consultees and independent advocates. Without advocacy, the voices of people with learning difficulties will not be properly heard.


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