Commissioner for Older People (Wales) Bill [HL]

My Lords, as we have heard, this amendment seeks to enable an older person to have an independent advocate present when being interviewed by the commissioner in connection with his functions under Clauses 3 and 5 of the Bill. I made it absolutely clear in Committee that, although not specifically stated on the face of the Bill, an older person may be interviewed by the commissioner with a third party present if they so wish. There may be circumstances in which an older person may wish to give their consent to be interviewed only if an independent advocate is present. Clause 12(1)(b) would enable this to happen without the need for any amendment. If an older person does not wish to have an independent advocate present they may make that decision for themselves. The noble Lord, Lord Livsey of Talgarth, asked in Committee what might happen in a situation where an older person was unable to give their consent to being interviewed. The basic position is that there will be a presumption that a person is capable of giving their consent unless the contrary can be shown. The question is whether the person is capable of giving their consent in relation to the specific matter for which consent is sought. The issue of capacity and consent is a very difficult legal area and I think it is an area where the commissioner would have to tread very carefully and in accordance with legal and medical advice. The need for consent is an important principle here, and in circumstances where an older person lacks capacity to give that consent, it would normally not be appropriate for the commissioner to undertake an interview. Neither would it be appropriate for an independent advocate or another third party to give consent on behalf of the older person. I emphasise again that an independent advocate should only be present where the older person wishes this to happen. In the light of what I have said, I hope that the noble Lord will, on reflection, withdraw his amendment.