Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

Examination of Witnesses (Questions 520-539)


14 OCTOBER 2003

  Q520  Mrs Browning: I was going to ask you that.

  Professor Williams: I am not aware of anyone who has scientifically looked at the cost. One problem is if we do not do anything, what is the cost? Certainly there is a social cost but also I think there is a financial cost because invariably if, say, it is financial abuse, if all their money disappears then the person's ability to look after themselves goes as well and they then become dependent on social services intervention; social services may be paying for residential care and perhaps they will be in receipt of benefits. Similarly, if it is physical abuse it may require hospital resources, so there is a kind of additional cost, as it were, in not having the protection there. We cannot deny that it will cost and that local authority social services departments in the absence of a statutory duty will prioritise and this will not be a priority, despite the immense amount of good work that has been done in local authorities.

  Q521  Baroness McIntosh of Hudnall: Professor Williams, can I just take you back a step to the analysis that you were making of what you would need in order to be able to put together something on the face of the Bill that would call to account those who are engaged in abuse. Would you agree that obviously the vulnerability of the adult in question is key, as you said, and the nature of the relationship?

  Professor Williams: Yes.

  Baroness McIntosh of Hudnall: But is it not also the case that the definition of "best interests" becomes very critical at that point? We are going to come on to that issue but I wonder when you are thinking about this if you could tie that in because clearly it is possible that when action is taken on someone's behalf, that action might be viewed from one perspective as a form of abuse, but viewed from another is in that person's best interests. I wonder whether your questions about best interests, which you raised in your submission, might be linked back into those issues.

  Chairman: If we could have the next question first because it relates to that.

  Q522  Baroness Wilkins: There are concerns obviously that "best interests" can be interpreted in too paternalistic a way. You suggest replacing the term "best interests" with "in the interests of promoting the human rights of the person". How do you feel that would enhance the Bill?

  Professor Williams: I think "best interests", rather like "welfare of the child", is a term we use and it is quite a useful term in one sense, but it is also a term that on occasions can lead to the suspension of thought and certainly the lack of thought process behind the decisions: "It is in the person's best interests to treat them, and there we are". It is an immensely complex thing to actually try and work out what is in somebody's best interests because there is a best interest in being protected, there is a best interest in having your autonomy protected regardless of what is happening to you. I suppose, to put it quite bluntly, my worry with incorporating or using the best interests test in new legislation is that it will bring with it, if you like, all the baggage that the current common law definition has. What I am keen to see is that under the law local authorities, health authorities and individual professionals do what I would choose to call a human rights calculation in deciding whether intervention is or is not appropriate. Again, yes, autonomy and protection are very, very difficult things to define but we have to take them on board. My fear with the best interests test is that we look very much towards protection, which to some extent goes against what I just argued. It is the full calculation, looking at both sides of the equation and coming to a decision. There are competing interests, of course, in the human rights calculation: the right to a private life versus the right not to be subjected to inhuman and degrading treatment. We cannot generalise about that. We cannot say that protection is always right, that Article 3 is always right and Article 8 is always wrong. My concern is that "best interests" brings with it a history, rather like "welfare of the child", we simply stick the label "yes, best interests, therefore it must be right", and there is not necessarily a real thought process behind that decision. Targeting it directly on human rights will cause us to think more broadly.

  Q523  Baroness Wilkins: How do you try to ensure that that human rights calculation is made? Do you write it into the Codes of Practice?

  Professor Williams: One, I would like to see it on the face of the Bill, a term "having regard to", and I think that the function of the Code of Practice would be to lay out the competing rights laid own in the Convention and say that basically "these are the things that you must have regard to in reaching your decision, it is a human rights issue". "Best interests" gives the impression of being very paternalistic, of doing what is best for you: "Don't worry, dear, we will always act in your best interests", and it is much more subtle than that.

  Q524  Chairman: What would be the effect if the Bill said that the best interests of the person shall be paramount? We had a long discussion on the Children Act on the welfare of the child being paramount. What would be the legal effect of that?

  Professor Williams: I am not sure that we have sorted that out under the Children Act yet. If we said it would be paramount then certainly it is the first consideration, the consideration carrying the most weight, but not the exclusive consideration—It is complicated with children in the sense that there are parents involved and parents have rights under Article 8, right to a family life. If you stuck to the term "best interests of the person" in the proposed legislation I do not think you would encounter that. Who else is there that has rights in this respect? It is not like the child/parent relationship, who else is there? Where are the competing holders of rights? It might emphasise it but in practice probably it would not add much to it.

  Q525  Stephen Hesford: I am interested by what you say and I have read and reread your paragraph four which deals with this particular point. If you do not mind me saying, what you seem to do is argue yourself out of what you have just been telling us. I want to press you on that because your first sentence is "Placing the best interests test on a statutory basis is welcome and will ensure consistency" and you then go on to say "I am not entirely happy with the best interests test" and then you say "A less concise but more acceptable term is interests promoting the human rights of the person". It seems to me that there is an internal conflict there.

  Professor Williams: Okay. Point one, I welcome the best interests test being in there if the alternative is what we have got at the moment. I think statutory recognition, plus the facts that are going to be taken into account in determining the best interests, has got to be better than the system we have at the moment which is simply relying on this phrase, "best interests", plus whatever professional guidance, Codes of Practice, maybe available. Given that, I think to make the Bill even better I would much prefer to see "best interests" replaced by this general reference to human rights.

  Q526  Stephen Hesford: But if for those who are having to administer the test, and you talk about dissemination of the idea of best interests as an educative process, there is an element of doubt as to whether they will understand their own duties, which is one of the things that is tied up in your concern—

  Professor Williams: It is a concern.

  Q527  Stephen Hesford: If you have got a less concise definition coming in, will that not make the job even more difficult for that person who will have difficulty understanding what the best interests test is, which you concede implies consistency?

  Professor Williams: It certainly implies consistency, and I do concede it looks better than what we have got at present because it is statutorily recognised and it is embellished in the Act. I do not think that a reference to "human rights" would be any more difficult to understand, and in some respects would be easier to understand, because it would set out quite clearly what is the internal debate within the European Convention on Human Rights, namely the struggle between autonomy and protection. In any system we have, if people do not take that on board then I think we are failing vulnerable adults, it has to be part of the equation. My concern is that best interests, even though it is better than what we have or do not have at present, does not really invite people to do that calculation. It suggests it is about a kind of paternalistic, "Don't you worry, we will do it. We will look after you. Doctor knows best" and all the other things that come along. That is my concern.

  Q528  Baroness McIntosh of Hudnall: Just going back to the earlier point, do you believe that best interests, as far as we are able to describe them, actively work against protecting people from abuse? What you seem to be saying is that the best interests test is so loaded in favour of the person making the substitute decision that it could actually act as a mask for decisions which were in fact abusive. Is that what you are saying, because if it is that is rather serious?

  Professor Williams: I think I am saying two things. One is we need a system whereby people are protected and at the moment, particularly people in my middle category as it were, people who are extremely vulnerable and require intervention and protection, the emphasis is there, and that in my view would be in their best interests in some cases, but not all. The term "best interests" is worrying because in a sense it is one dimensional, it is about doing what the substitute decision-maker thinks is best for the person, and there are a whole load of assumptions behind that: "This is what I want and what any reasonable 85 year-old would want" and the family say this is what he/she would want and, therefore, it must be in their best interests. What I want to do is put in the second dimension, which is, yes, but doing something, doing nothing, not treating the person, not resuscitating them, removing them from their home maybe, interfering with their autonomy, may also be in their best interests. The given formulation of "best interests" has a history that in my mind is based in paternalism. I think we need to focus people's attention on doing the calculation, as I say my human rights calculation, and looking at the various competing interests rather than saying "Going into the residential care home, going into the nursing home would be nice because it is comfortable, there is a nice, big television, you will be warm" and there we are, even though the person has made it clear that they were born here and want to die here and do not want to go. It is getting people to do that calculation, which in part may be a safeguard against some of the risks that were identified earlier on about overzealous use of the kind of power that I am suggesting. It is down to calculation rather than the assumption that paternalism is always best.

  Q529  Huw Irranca-Davies: Could I push you a little bit further on that aspect of the calculation. You referred to it a little bit earlier on as the necessary codification that would underline something that was on the face of the Bill. If the essence of it, if the nub of solving this particular issue, is to do with the codification that lies under what is on the face of the Bill, could that codification not lie underneath "best interests" equally to the human rights?

  Professor Williams: I think if one links "best interests" with really what I am trying to suggest in the paragraph, you keep the words but you link it somehow, perhaps in the list of factors to be taken into account, you include it there, that may be an easier way of doing it. As I say, what I am desperately keen to ensure is that we do not say "it was best interests before, we bring all that in with us", I want people to do the calculation. Yes, you could include it in the section and say "have regard to the person's human rights", indeed providing on the face of it, as it were, people will go with that.

The Committee suspended for a division.

  Chairman: I fear there may be another division in the Lords very soon. Could we move on to general authority.

  Q530  Mrs Humble: Could I ask a very brief supplementary on this issue of a person's best interests. You have been talking about human rights and one of the other suggestions that has been put to us is that the Bill should define "best interests" as "best personal interests" of the individual. Will that go some way to answering your concerns or would that further muddy the water? The counterweight to personal best interests would be that sometimes an individual's best interests might be better served in circumstances involving them and their family, or wider issues which could perhaps then not have the priority. Could we just have a brief comment on that?

  Professor Williams: To some extent that would muddy the water. It addresses an issue that in applying the best interests test, whose interests are we actually looking after? Of course they are interlinked because the interests of the informal carer are going to be important in looking after the interests of the cared for person. An immediate reaction to "best personal interests" would be, as you say, to muddy the water; to some extent the worst of all possible worlds.

  Q531  Baroness Barker: I have a question sparked by you mentioning the second strand of best interests as you see it, one of the consequences of not making an intervention. Given that and some of the other points you have made that human rights are part of the underlying concerns in the Scottish Bill, do you think that taking "best interests" out and using the format of the Scottish Bill with the principle of best approach would go some way to meet your concerns?

  Professor Williams: I think it would go some way to doing it, yes, I do. I think it is an interesting piece of legislation.

  Q532  Baroness Fookes: You give a general welcome to the concept of the general authority but you also indicate that there is the risk of abuse. How significant do you think that abuse is likely to be?

  Professor Williams: That is very difficult. Master Lush was referring to the difficulties of identifying possible abuse with enduring power of attorney and I think it would be even more difficult with the general authority. I suppose the nearest we have as an analogy is the idea of appointeeship for receipt of benefits. Again, I regret that much of the evidence is anecdotal but talking to quite a number of social workers they do tell me that they know appointeeships are actually being abused, that the money is not being used for the benefit of the person entitled to receive the benefit. I think that is worrying because there is a mechanism under appointeeship for control but, again, the evidence, the anecdotal evidence I regret, no more, appears to be it is not used. To some extent it is rather like putting Herod in charge of a nursery, that sometimes by giving that person general authority or an appointeeship you simply "regularise" the abuse: "I am the appointee, therefore I can buy my new car because I take mother out once a year to visit father's grave. That justifies me because I am the appointee or I am the person with general authority".

The Committee suspended for a division.

  Q533  Baroness Fookes: You suggest that there should be additional safeguards to protect against abuse in using the general authority. What do you feel they should be on the face of the Bill or in the codes and is there a possibility that this might make it all very cumbersome?

  Professor Williams: I think there should be something on the face of the Bill to give it the necessary statutory basis. It is possible that the detail could come in codes. I fully accept the point that this could become bureaucratic, both for those who are called upon to administer but also for the people who are exercising the general authority because the last thing they want is a heavily bureaucratic regime imposed upon them, and there is a cost factor as well. I think it should be minimal but people should be aware that there is the possibility that their spending of the money, the decisions that they make, at some stage they may have to be accountable for. That could involve the keeping of very simple pro forma accounts—very simple—what the money has been spent on, or maybe a diary as to why certain decisions were made. It is probably far too expensive to have those checked every year, but the possibility may be of random checks?

  Q534  Baroness Fookes: By the local authority, would you envisage?

  Professor Williams: The local authority would seem to me to be the key people to do this because invariably they will have access to the person, they will be working with the person who is providing services. Social workers are very well informed about what is going on. They know, I think, when there are problems. They know when possibly financial abuse is going on. In those circumstances perhaps the social worker could initiate some kind of audit. I emphasise very simple records because we do not want to scare off the people who undertake this and the majority of informal carers are wonderful people.

  Q535  Baroness Fookes: Would you envisage that, say, a neighbour who was concerned, or somebody else who was concerned, would channel that concern to the local authority?

  Professor Williams: Yes, I think that is a possibility that could be done. One might go some way towards protecting anonymity. I think the useful thing about channelling it through the local authority is that the local authority then has the responsibility for initiating action, you do not leave it to the person who is being abused to do so. Again, looking at the American experience of mandatory reporting, relieving the victim of responsibility for "where do we go from here" is a very significant factor in prosecuting vulnerable adult abuse and protecting vulnerable people. Yes, there could be a whistle blowing mechanism for neighbours, concerned friends, concerned relatives, and concerned carers.

  Q536  Mrs Browning: I am concerned about social services taking responsibility for this because, by definition, if social services are providing the services then the person concerned has limited assets. The people who have got the assets are the people who are self-funding and they would not come under social services' remit at all. I would be quite concerned about that route because apart from maybe a property which someone might try to sequestrate, the people who are self-funding would be the ones who I would have thought would be most vulnerable to having their assets removed under circumstances that might not be proper.

  Professor Williams: I have a two-fold response. One, if you look at people who may be within the social services' net, taking £5 a week off them is probably going to be as significant as taking £100 or £200 off someone who is outside of the social services system, so it is a relative calculation. I entirely take the point that it is difficult to identify those who are not in touch with social services and I do not know how you would do it, I really do not.

  Q537  Mrs Browning: But surely if someone has applied for power of attorney there is a record of who has applied and where they are. They may not even live close by.

  Professor Williams: Yes, under power of attorney you are into a formal process. Similarly with appointeeships, at least we know who are appointees because there is a process. I am conscious all along of throwing babies out with bathwater but if people are wanting to use or take advantage of the general authority, somewhere maybe that should be logged in in order to give them the legal protection, so there could be a very simple logging in with a local authority, who I think would still be the ideal people, but at least we would know that somebody is exercising the general authority. I entirely take the point that we are perhaps in danger of formalising something that is supposed to be essentially informal and that in the majority of cases works quite well, but given the cases that do go wrong I think we do need some formal, albeit light touch, registration process of simply logging in, "I am exercising a general authority", "Here is the sheet of paper which tells you what your duties are and there is the possibility of a random check".

  Q538  Chairman: Is it not the case that even if somebody is self-funding but under a protection order in a private residential home, because they have been placed under a protection order by a psychiatrist then the social workers do know about it and they are in touch and have a degree of power over the health and welfare of that person?

  Professor Williams: I think in that situation, yes, because there is a professional involvement and maybe a health involvement, but interdisciplinary working, the No Secrets procedure, should ensure that these things are fed in. I guess it is the person who is outside of all this, who is reasonably comfortably off and is not within the social services or the health care system—what happens to them? They are managing but there are problems.

  Q539  Mr Burstow: I want to pick up on a couple of points. The first is to reflect back to you that there is an expectation here in what you are saying that there is a wider acceptance in society about the existence of older and adult abuse and certainly I am aware of a taboo existing, it does not really come out in the same way it has with child abuse. Particularly I wanted to explore this issue of a general authority and your proposition of a human rights calculation and whether or not you feel that such a calculation is an onerous burden to be placed upon a carer and, therefore, it should not be placed on the general authority but more appropriately placed in more formal substitute decision-making arrangements dealt with elsewhere in the Bill.

  Professor Williams: I think in terms of public awareness of vulnerable adult abuse, the public are unaware, there is absolutely no doubt about that, it does not happen, but it does. If you talk to social workers, talk to health care practitioners, they will tell you it does happen and it happens quite frequently. Precisely what the incidence is we do not know, but it happens. Yes, I think the human rights calculation can be a complex one, although to some extent that is dictated by the particular decision that you are making: is it a decision relating to a significant investment or a major piece of health care where there are serious risks, in which case the calculation may be quite complex. I think that for the routine day-to-day kind of decisions that we are looking at under the general authority the calculation is relatively simple and it comes back to having codes that are aimed at specific groups of individuals, so for people with general authority their code would be, in very general terms, trying to explain how the calculation works. As I say, we do need to be very careful that we do not frighten people off because if all these people walk away from it then we have a major problem. One has to be careful. I think it is do-able. There is some stuff in the Lord Chancellor's Department's draft codes that could usefully be used in new codes in terms of trying to explain to people what is involved in decision-making for other people, what their duties are. If it is an immensely complex decision then, yes, I think the human rights calculation itself is much more complex.

  Chairman: If we can move on to lasting powers of attorney.

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