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Column Number: 135
Standing Committee A
Tuesday 26 October 2004
(Morning)
[Mr. Alan Hurst in the Chair]
9.30 am
Mr. George Howarth (Knowsley, North and Sefton, East) (Lab): On a point of order, Mr. Hurst. I wonder whether you can assist me. I have been reflecting on last week's deliberations, particularly those on the best interests test under clause 4. There was a large degree of agreement on the point that we want to reach, but no agreement on how to achieve it, such as by altering the clause if necessary. Before Report stage, it might be helpful if the Committee collectively took advice from the British Medical Association and other organisations about how to improve the clause. I suspect that the answer will be that such action is not possible, but I seek your guidance, Mr. Hurst.
The Chairman: We cannot go further back in the Bill than the point that we have now reached. Any new matters or amendments to clauses that have already been dealt with will have to be considered on Report. Clause 9
Lasting powers of attorney
Mr. Paul Burstow (Sutton and Cheam) (LD): I beg to move amendment No. 164, in clause 9, page 5, line 11, after 'capacity', insert
'where the authority of the donee has been limited to either one of (a) or (b).
(1A) There is no presumption that the donee can make decisions on behalf of P or the donees' views should take precedence over others who are consulted in relation to matters that relate to (a) if the donee's authority is limited to (b) and (b) if the donee's authority is limited to (a).'.
The Chairman: With this it will be convenient to discuss the following: Amendment No. 158, in clause 9, page 5, line 15, leave out 'and registered,' and insert 'registered and notified'.
New clause 5—Notification of the use of the LPA—
Mr. Burstow: Perhaps I can comment on the point of order in the context of this debate. It is to the Government's credit that they subjected the Bill to a scrutiny progress that allowed some interaction to take place at an early stage of the consideration of the Bill by the House, in so far as the BMA, organisations such as the General Medical Council and parties such as the
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Catholic bishops and others, discussed how the best interests test would apply. The purpose of this group of amendments is to explore further the interaction between clause 9, which deals with lasting powers of attorney, and clauses 1 to 4, which deal with best interests and the principles of the Bill.
On a point of order, Mr. Hurst, can you arrange for someone to adjust the lights because I feel as though I am under a spotlight?
The Chairman: The House staff are already ahead of you, Mr. Burstow.
Mr. Burstow: Thank you.
The purpose of tabling the amendments was to explore why the principles under clause 1 seem to have been decoupled from the rest of the Bill and, hopefully, to receive some reassurance from the Government. The explanatory notes to clause 9 state:
''The 1985 Act will be repealed on implementation of the Bill, but the legal effect of EPAs''—
that is, enduring powers of attorney—
''already made under the current law is preserved and integrated into the scheme of the Bill by clause 62(3) and Schedule 4.''
To what extent is the existing system of EPAs being truly integrated and rolled forward into the new system? Clearly, in certain aspects it is not? It worries me, for example, that the principles do not apply. The aim of the amendments is to put it beyond doubt that when a person has chosen different donees to make decisions on his behalf, there is a clear distinction between their powers. In other words, someone who has appointed one person to act as his financial attorney and another to act as his welfare attorney might have chosen to allow his financial attorney to act prior to his losing capacity. However, the Bill rightly stipulates that a welfare attorney can act in respect of welfare matters only when the person has lost capacity. The question is whether there is differentiation of the status of different donees under the Bill.
Donees should probably not have different status, especially in matters that are outside the purview of the powers donated to them by the donor. My concern is that, if a donee is empowered by the instrument to make decisions only in relation to welfare or finance, there might be a tendency to take account of the donee's views over those of a relative or other relevant party. Paragraph 4.26 of the draft code of practice states:
''Even if the donee has only been appointed to manage the person's financial affairs, the donee may have some knowledge about the person's wishes and feelings which are relevant to his/her best interests''.
That may well be so, but it is important to remember that the donor has, of his own volition, chosen a particular donee to make decisions on one aspect of his life alone. A donor may have full confidence in a person to make the best decision for him financially—the donee might be a highly qualified accountant and thus competent in that regard—but be less confident about that person making welfare decisions. The donee might know a lot about the donor's financial circumstances and how to benefit him in that respect,
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but know nothing about the donor personally to enable him truly to understand the donor's wishes, feelings and needs in respect of welfare matters.
It is often, but wrongly, believed that an EPA enables an attorney to make a welfare decision, as well. There is almost an assumption that proxy decision making can be held to be taking place. The amendment would make it clear that, although a donee should be consulted as part of the decision-making process—the amendment is not trying to diminish the Bill's aims in that respect—his views should be given equal weight to, and certainly no greater weight than, the views of others who may be consulted. No one should take precedence just because they have been appointed donee for one particular purpose. The code of practice should make that clear, and I hope that the Minister can give us comfort that it will. It should also make it clear that, where a donee has been appointed in relation to a matter that is not the subject of a decision, there is an obligation to consult others to establish past and present wishes.
Under new clause 5, we are trying to deal with some concerns that some people outside the Committee and I have about the Bill. The first is that as lasting powers of attorney become established—when the Bill has gone through all its stages and this part of the Bill comes into practice—large numbers of people will wish to avail themselves of the measure, not just in terms of finance but in relation to other matters, too. We therefore have to ask—as did the Joint Committee—how can we ensure that safeguards are put into the provision and that there is independent monitoring of what happens?
That brings me to the role of the Office of the Public Guardian. In future, it will become aware of the vast majority of LPAs as they are registered, but the problem with that is that registration is no indication of the power being used, because one registers ahead of loss of capacity. How can we be certain that an LPA has been triggered and is being used appropriately? Under a later group of amendments, we will deal with safeguards relating to the individual who becomes the donee, checks on donees, and so on.
Mr. Tim Boswell (Daventry) (Con): Anticipating the good argument that the hon. Gentleman is developing, I should like to add that we should also consider the protection of the person who is dealing with the individual concerned, perhaps in connection with a financial or welfare matter. There is the question of knowing the status of the person—whether he still has mental capacity—and whether someone is claiming to have triggered an LPA without having succeeded in doing so.
Mr. Burstow: That is a fair point. I will listen carefully to what the Minister has to say when we deal with whether the principles at the beginning of the Bill apply to donees. It is important that the steps that the principles say the individual has to go through—including presumption of capacity, assisting in taking decisions and ensuring that communications are
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facilitated—are gone through as a matter of course by a donee before he takes a decision. Capacity could well be a fluctuating thing, and certain decisions could continue to be made by the individual who donated power of attorney.
Mr. Boswell: Does the hon. Gentleman agree that information and training for donees will be critical?
Mr. Burstow: The hon. Gentleman is correct. The Joint Committee commented on that at some length, and a number of those who made representations to that Committee expressed a desire for good training to enable donees to understand how to discharge their responsibilities fully. During our consideration of the clauses on LPAs, it would be useful to hear about the Government's intentions regarding resourcing and training, and how they envisage training taking place.
Most people registering LPAs will hope that they never have to use them; in so doing, they will be safeguarding themselves against a contingency by making a judgment, when they are able to, about whom they want to act on their behalf in unknown circumstances. There are likely to be very large numbers of LPAs, but under the Bill no indication will be given to the Office of the Public Guardian that an LPA is in use. The Bill is lacking in that respect. There ought to be some mechanism to alert the Office of the Public Guardian about which LPAs are live and which are inactive.
The second concern is about how banks and financial institutions will deal with registered LPAs, which might deal solely with financial matters. Under enduring powers of attorney, banks are aware that if the power is not registered, the person who lacks capacity but who has chosen to allow the attorney to deal with his affairs—let me make sure that I have that the right way round. The point that I want to make is that if an LPA has not been registered, it is not live; if it is not live, it cannot be used. I see from people's faces that I have got that wrong. I want to make sure that the Minister follows my argument, even if I have not expressed it correctly. When enduring powers of attorney have not been registered, it is still possible to use them if the person has granted a power of attorney ahead of their losing capacity. What I am trying to do with the amendments—incoherently at the moment, it seems—is ask the Minister to make sure that the construction of the law on LPAs is a lot clearer than I have just enunciated. If nothing else, I have successfully demonstrated that this is a complicated area of law.
The concern is that banks with LPAs will not know whether they have to deal with the donee—whether the donee has authority. Without making its own separate set of checks, which it has not had to make hitherto, how can a bank be confident? I hope that the Minister can deal with that issue. It has been put to me that a bank, in having to make such additional checks outside the system, could breach a person's article 8 rights, relating to private and family life, under the European convention on human rights and the Human Rights Act 1998. I am sure that that is not the Government's intention.
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The amendments are designed to address concerns about how to make a good innovation and an important improvement that much clearer and safer. The Joint Committee and many who made representations to it felt that LPAs were an important innovation. Take the example of the use of welfare attorneys in a decision involving a public body. Suppose that there was an accident in which a person lost capacity because of a head injury, and the person whom they had nominated as donee was a family member. In such traumatic circumstances the donee would be suffering from shock and grief and might well not do what the law required them to do about registration, notification and so on. Our aim in the amendments is to regularise the position and to ensure that the Office of the Public Guardian is made aware that an LPA has been activated, and that the relevant public body—the national health service or the social services authority—may, in such circumstances, give notice to the Office of the Public Guardian. As for financial LPAs, it is unlikely that a financial institution would have any direct contact with the individual for whom the instrument is being used; in that case, the obligation is on the donee to notify, with evidence from a prescribed person—a doctor or other professional trained in assessing capacity—that the LPA needs to be used because of the donor's incapacity.
The amendments would improve the safeguards built around LPAs to ensure that those who act in good faith as a result of an LPA being used by a donee can be certain that the person on whose behalf those decisions are being made is properly safeguarded. I hope that the Minister can reassure us on that when he responds to the amendments.
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