Care Bill [HL]

Baroness Barker Excerpts

Wednesday 9th October 2013 Lords Chamber

[Lord Harries of Pentregarth (CB)]

My Lords, as someone who remains a Bishop, on behalf of my old friends on the other side of the Chamber, I would like to support this amendment. As the Bishop of Oxford, I remember visiting one of the brand new universities, which thought of itself in very secular terms. Nevertheless, the university was adamant that it should have a chaplain because it believed in whole-person care, and an essential element of whole-person care was the spiritual dimension. We need to take that into account.

We also need to take into account the fact that we now live in a multifaith society, and for those of some religions in particular, it is very important that they have someone with religious authority in contact with them in the final stages of their life. There are good reasons for supporting this amendment.

[Baroness Barker (LD)]

My Lords, I apologise for not being in my place for the start of this debate. As noble Lords will know, on these occasions such amendments are often tabled by myself and the noble Lord, Lord Hunt of Kings Heath. We do so because we support the right of Christian Scientists to have their beliefs respected, in particular their right to refuse treatment. That said, when we discussed this matter in Committee, while at that point the Minister was as sympathetic as always, he failed to draw a distinction that is important to people of faith, which is that between the use of the words “emotional” and “spiritual”. People of faith believe that matters which are spiritual are of a different order from those matters which are emotional. I have a degree of sympathy with their view. However, I also have a degree of sympathy with the Minister, who does not wish to put things into legislation that are unnecessary. I hope that he will, in this case, perhaps be a bit more sympathetic to the arguments that are being put forward.

The noble and right reverend Lord, Lord Harries of Pentregarth, is right that as a society not only are we becoming much more diverse, but in our everyday life we understand the importance of faith and spiritual matters to other people. For example, we would not for a moment think it acceptable to present somebody with a diet that was not reflective of their cultural and religious beliefs. In our modern day health and social care services we are increasingly adept at recognising people’s differences and accommodating them. All told, this is a small amendment which costs nothing but means an awful lot. I hope that the Government will be able to take it on.

[Lord Warner (Lab)]

My Lords, as the chairman of the All-Party Group on Humanism, I am not sure that I should actually be following the previous speakers. However, Amendment 5 in this group is in my name and I want to be nice to the Minister instead of telling him off. The Minister has listened to the concerns that we expressed in Committee about applying the requirement to pursue the obligation on local authorities in Clause 1 to the Secretary of State in his actions, particularly regulations and guidance, to promote well-being.

I congratulate the Minister on listening to those concerns and tabling government Amendment 138, which effectively meets the concerns that we have. I suspect that my co-signatories, the noble and learned Lord, Lord Mackay of Clashfern, and the noble Baroness, Lady Greengross, would say that the Minister’s amendment may not be quite as elegant as ours, but we are not going to have a competition about aesthetics; he has met the point and I thank him very much for what he has done.

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[Baroness Barker]

When would it be safe to anticipate the statutory guidance which he mentioned?

[Earl Howe]

I apologise to my noble friend. I cannot give her a precise answer, but I shall endeavour to do so as soon as possible. I do not think that the guidance will be available before the Bill leaves this House.

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[Lord Lipsey (Lab)]

I shall make most of my remarks on the subject of advice and information on Amendment 20, which is a more broad-brush amendment, but I shall just comment on the government amendments in this group, on advice—that is Amendments 16, 17 and 19. I remind the House that I speak as the unremunerated president of SOLLA, the Society of Later Life Advisers, which accredits, to a gold standard, advisers who can help old people on financial matters.

It would be churlish not to say that the government amendments mark a small step forward, in that for the first time they represent a recognition that independent financial advice can be necessary. To that extent, I welcome them. However, I have to say right away that it is impossible to read the briefings we have had without realising that they have caused great disappointment, particularly among financial service people who are determined to get this right. The Equity Release Council says that the government amendments do not go far enough.

In trying to put my finger on the point, yes, they recognise independent advice and financial advice, but they do not recognise the need for that advice to come from people who are properly qualified to give it. It is not enough to have Tom, Dick and Harry advise in this field. It is not enough, even, for local authorities to send people to see people who they may think are quite plausible advisers, such as Citizens Advice: they do not know the complications involved in giving financial advice, particularly to people who have got some money and need to make sure that it will provide them with the care in a home that they want. They need proper, regulated financial advice, given by advisers who can be called to task by the Financial Conduct Authority if the advice they give is not sufficient, who have to follow the rules set by it and must have the kind of qualifications required by it. Therefore, in my view the Government are some way short of what is required in these amendments. It is to repair that lack that I shall later move Amendment 20.

[Baroness Barker]

My Lords, I think I am right in saying that in the Inuit language there are more than 300 words for snow. I suspect that if historians were to go back through the annals of the British Civil Service, they would come across thousands of ways in which officials have briefed Ministers to say “no” to requests for advocacy. During the 20 years that I have followed these sorts of issues, during which advocacy has became part of social care, Governments have had to find ways to say, “It’s a very good thing, but we’re not going to fund it”. It was therefore a real joy to see the Government’s Amendments 118 and 119 in this group.

It is fair to say that the Government have taken on board the arguments that have put forward by a wide range of people. We know that the changes to the care system and the complexity of those changes, not least those stemming from the Dilnot recommendations, mean that we are now into a level of complexity which individuals on their own—even those who are fairly well informed—will find extremely difficult to manage. Therefore I very much welcome the Government’s Amendments 118 and 119, in which they recognise that there will have to be advocacy services. I also welcome the Government’s commitment to set aside funding for that.

The Minister will accept that his Amendments 118 and 119 fall somewhat short of my proposal in Amendment 38. I would therefore like to raise a few questions which result from the fact that the government amendments are of a much tighter scope than my proposal. I welcome the amendments, but there are several issues that I wish to ask the Minister about.

Subsection (2) of the new clause proposed in Amendment 118 states that independent advocates will,

“represent and support the individual for the purpose of facilitating the individual’s involvement”.

Advocacy in its truest sense is about much more than involvement—it is about enabling people who need help to achieve the outcomes they want. The word “involvement” is not defined, although it is used a lot in the Bill. Will the Minister say whether advocates will have a full advocacy role or whether this is just about securing the involvement of people?

Secondly, I come to individuals who qualify to have an advocate. Subsection (4) of the proposed new clause is quite clear that that is reduced to people who have substantial difficulty in understanding and retaining information, in making judgments by weighing things or in communicating their views. What is not in the Government’s Amendment 118 is a right of access for the advocate to access those people. Under the Mental Capacity Act and the Mental Health Act, where advocates are appointed they have a statutory right of access to people and a statutory right to interview those people in private. Given that we are talking about some fairly vulnerable people, would it be possible to ensure in regulations that advocates have a statutory right of access?

The third thing that is missing is that although the Government have taken this welcome step, there is absolutely no duty upon the local authority to listen to what the advocate has to say. That is a huge omission in the process; could it be dealt with in regulations? To echo the points made by the noble Lord, Lord Lipsey, it is important that people are properly trained for the roles that they will undertake in this extremely complex set of conditions which they are dealing with. Again, under the Mental Capacity Act and the Mental Health Act advocates have to be properly trained. Can that be dealt with in regulations?

Finally, can the Minister say whether it will be possible to include a general provision that in future, if additional circumstances arose in which it would be to the benefit of a person to have an advocate, they could have access to one? I am sorry to sound less than pleased—I am, in fact, very pleased by what the Government have put forward—but with a few more minor adjustments in regulations we could have something that is a great step forward.