Joint Committee on the Draft Mental Incapacity Bill Written Evidence

124.Memorandum from Martin Terrell (MIB 1002)


  1.  I make this submission as a solicitor in private practice with experience in dealing with the affairs of elderly clients. I have over 10 years' experience in this area of work and have a detailed knowledge of the legal and practical issues involved.

  2.  I have written chapters on the financial management of the affairs of elderly clients for Tolley's Finance & Law for the Older Client and Butterworths' Older Client Law Service. I have also contributed a number of chapters to Heywood & Massey: Court of Protection Practice and have written my own book A Practioner's Guide to the Court of Protection which was published last year by Tolley's. I am currently working on the 2nd edition of this book and am editing the Law Society's Elderly Client Handbook. As well as editing this book, I have written a chapter dealing specifically with the financial affairs of elderly clients.

  3.  I am also a Panel Receiver and a member of the Professional Receivers Forum of the Public Guardianship Office.


  4.  My principle concern about the draft Bill is that it has been prepared with the best intentions but without a great deal of thought to its practical implications "on the ground". It will be practitioners such as myself who will need to deal with its implementation. The lack of thought that has gone into this is emphasised by an email sent to a colleague from the Mental Incapacity Bill Team of the DCA on 8 August stating:

        "I am approaching a number of our stakeholders to ask them if they can help me obtain a clearer idea of these practical benefits and I hope that you would be willing to provide me with some information from your specific area if possible."

  The correspondent sent this email on 8 August and asked for replies by 18 August. This does indicate that the draughtsmen have placed the "cart before the horse" in drafting this legislation.

  5.  My own view is that legislation needs to work backwards in terms of identifying the issues involved, the problems with the existing legislation and where improvements may be made. The main problem with the existing legislation is that the Enduring Power of Attorney system provides inadequate safeguards for the elderly and vulnerable individual. In a widely quoted comment, the Master of the Court of Protection has stated that some 10-15% of Enduring Powers of Attorney are used improperly or fraudulently (Cretney & Lush 5th edition, para 12.1):

        "financial abuse probably occurs in about 10-15% of cases. Expressed as a percentage this may seem to be a relatively minor problem, and maybe even an acceptable price to pay for the 8S-9O of cases where attorneys act lawfully."


  6.  I have in my own experience dealt with a case where a nursing home manager obtained Enduring Powers of Attorney from a number of elderly residents who had no relatives at hand and systematically defrauded them of over £500,000. Eventually the fraud was detected and the manager was prosecuted by the police. Unfortunately, not all the monies stolen were recovered and several charges were dropped through lack of evidence. The persons who could supply evidence were either mentally incapable or had by then passed away and a great injustice has been allowed to take place.

  7.  The proposed legislation does nothing to address this type of situation. There are no additional safeguards available to the donor of a lasting power of attorney. The existing safeguard that all relatives of certain categories are to be notified has been removed and replaced by a requirement that only specified persons are notified.

  8.  I am also concerned by the proposal that the powers of the donee of a lasting power of attorney should, under clause 10 of the proposed Bill, extend to decisions about personal welfare and may, if the lasting power of attorney contains provisions to that effect, extend to refusing consent to the carrying out or continuation of life sustaining treatment. This effectively gives the attorney power of life and death over the donor. The Bill does not take account of the practical consequences of this situation.

  9.  In the vast majority of such cases there is absolutely no dispute over what is appropriate for the incapable person. To the extent possible the capable person gives his or her own consent, relatives are consulted and doctors can then determine what is in that person's "best interests". Problems only arise where there is disagreement and generally a dispute between relatives over where a person should live, whether treatment should be prolonged or whether treatment should be curtailed. Often these situations are extremely painful and difficult for all concerned. In an ideal world, it is perhaps tempting to give someone (the donee of a lasting power of attorney or a manager appointed by a court) to make the final decision. This also allows doctors to avoid making awkward decisions or getting involved in family arguments.

  10.  The problem inherent in the draft Bill is that a decision by a third party is only necessary where there is a dispute and at least two alternative decisions that can be made. In my own view, an attorney or manager is not the best person to make a decision in this type of situation for the following reasons:

    —  The donee/manager is generally not medically qualified.

    —  The donee/manager is partisan in that he or she is proposing one course of action which another person opposes.

    —  The donee/manager will either be a professional who should not be presented with moral dilemmas of this nature or a relative who in most cases will have an obvious conflict of interest.


  11.  I would like to elaborate on this last point in more detail and it is has been completely overlooked in the legislation. It is a basic principle in litigation where you are acting on behalf an incapable person that you have no conflict of interest. A donee/manager who is a relative may also be a beneficiary under the person's will or intestacy and therefore has a clear conflict of interest. This may be an irrelevant consideration in most families where the welfare of the individual is paramount. However, a conflict arises whether or not it is real, it simply has to be a potential conflict. The danger is nevertheless real that medical and welfare decisions will be influenced by financial considerations.

  12.  I appreciate that in many cases attorneys already act where financial decisions are made which will affect their inheritance later on. However, the power only relates to financial decisions and an attorney has a fiduciary duty towards the donor's estate. A receiver has a duty to the Court of Protection and if a solicitor, a professional duty as well, to act exclusively in the patient's best interests. However, the attorney/receiver has no direct control over a person's accommodation or treatment. Generally, accommodation and treatment are dictated by a person's needs rather than by their resources. The danger of the proposed Bill is that it will become much easier for a beneficiary under a person's will or intestacy to dictate where he or she lives and how he should be treated. If I, as an attorney, who is also a beneficiary, can see my inheritance disappearing in nursing home fees, am I not going to be influenced by this when choosing the nursing home and determining whether proposed treatment might prolong the person's life?

  13.  To bring these concerns to a conclusion, I would argue strongly that lasting powers of attorney should have no place in this Bill. They add nothing to the existing arrangements available under Enduring Powers of Attorney and if anything weaken the safeguards already available to donors of Enduring Powers of Attorney. There are improvements that can be made to Enduring Powers of Attorney through legislation as well as through administrative practice, but these are not addressed in the proposed legislation.

ADVANCE DECISIONS14.  For similar reasons, I am also concerned by the proposed legislation concerning advance decisions. My understanding is that the law already recoguises advance refusals in certain situations but advanced decisions opens up the whole minefield of moral issues, medical ethics and risk. There is no ideal legislative framework for this type of situation which protects the patient, the doctor as well as the relatives. It is extraordinary that an advance decision might be verbal. If my elderly relative tells me in the pub that he doesn't want to "end up" in a particular way, then that constitutes a valid advance decision. If I then communicate that decision to a doctor, who is perhaps under pressure from his managers to free up a much needed hospital bed and act in accordance with my evidence, my elderly relative's treatment can be withdrawn, with death being the result. Both the doctor and I are protected by clause 25(3) of the bill as long as we believe that the decision was valid.

  15.  I would strongly advise therefore that the provisions of this draft Bill relating to lasting powers of attorney and advanced decisions are removed.

  16.  I can see no objection however to the Court's powers to make decisions being set out in a statutory framework. All this would do would be to transfer the existing jurisdiction of the High Court to make declaratory judgements to the new Court of Protection. The advantage of a court making these decisions is that a court can take a strictly objective view of a person's "best interests" and can look at all the evidence. Soundings can be taken from different relatives and the court can take independent advice from social workers, doctors, solicitors involved in the case or concerned friends, neighbours and relatives. In sensitive cases where there is an obvious conflict of interest, the Official Solicitor can also act to represent the incapable person. All that the proposed Bill would do, it seems, is to make this jurisdiction more accessible to a wider public.

  17.  If this is the outcome of the Bill then there will be a positive advantage to it. However, some thought needs to be given to the way in which the jurisdiction will be established and its cost implications. I doubt whether in numerical terms the High Court deals with many such cases each year. If it were perceived that a more local and cost effective solution were available nearby, would it not encourage people to take advantage of it and air their grievances through this court? From a practitioner's point of view, I notice families becoming ever more disputatious and prone to argument over these issues. Litigation though is often avoided simply by the High Court jurisdiction not being widely understood and also being very expensive to pursue. If a more accessible and more affordable jurisdiction were available locally, it could potentially increase the appetite for litigation in these situations. Has any thought been given to the resources required? How will judges implement the court's jurisdiction and what resources will be required?


  18.  My last concern relates to the definition of capacity and how this impacts in practice. For example, the jurisdiction of the Court of Protection may be relevant where lack of capacity is temporary or relates to only one aspect of a person's affairs. How are professionals let alone third parties such as banks supposed to deal with these situations? If a person is presumed capable and a manager has been appointed, where does the presumption of capacity lie?

  19.  It is also unclear what degree of incapacity is required. The present legislation refers to "mental disorder" whereas the draft Bill refers to an "impairment in the functioning of the mind." Would this for instance include someone who is now alcoholic or has fits of depression?

  20.  A person also appears to be incapable if he is unable to communicate a decision. I have recently dealt with a stroke victim who understood very clearly what was going on around her but could not communicate except in very general terms. According to the Bill, she would be deemed to be incapable. Clause 2 of the Bill tries to refine in five short paragraphs a vast range of situations which the courts have struggled with in determining whether or not a person is capable. To the credit of the courts they have been somewhat flexible in interpreting the existing law as it stands, but it is very difficult to apply precise definitions to different situations. In a recent case an elderly gentleman gave £200,000 to his next door neighbour. His estate was worth only £230,000 and apparently he fully understood what he was doing. According to the draft Bill, he would be treated under clause 2(2) as able to make an "unwise decision" and under clause 3 he would be deemed to be capable. In this particular case, the court was able to set aside the gift becausethe decision was irrational and could not have been property thought through by the individual.

  21.  I dot believe you would expect a line by line analysis of the Bill but I can provide a more detailed response if this might be helpful. In view of the short timescale provided one can only respond to the proposed Bill in very general terms and hope that these considerations will be of assistance.

  22.  The comments set out in this submission represent my own views and not those of my partners or firm.

September 2003

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