Taken before the Joint Committee on the Draft Mental Incapacity Bill
on Tuesday 14 October 2003
Barker, B Mrs Angela Browning
Pearson of Rannoch, L
Memorandum submitted by The Association of Directors of Social Services
Examination of Witnesses
Witnesses: MR JOHN DIXON, Chairman of the National Disability Committee, MR GRAHAM COLLINGRIDGE, Member of the Mental Health Strategy Group, Association of Directors of Social Services, examined.
Q426 Chairman: Thank you for the written evidence, which is very helpful, and for coming today. As you know, the session is open to the public and it is being recorded for broadcasting. In fact, we should be on the Parliament Channel at six o'clock on Sunday evening, if you are interested. There will be a verbatim transcript of the evidence which will be published with the report, and you will be asked to check the text of the transcript for accuracy. If there is a division in either House then we shall adjourn, and there should be a note on the table of the relevant interests of Members in this Bill. As I have said to all the witnesses, if we are unable to reach all the questions and if you would like to respond in writing, or, indeed, on any of the points that arise in discussion, please write to us. We are required to report on the draft Bill, and we are asked to report on the White Paper on mental incapacity, so that is why all the questions are structured around the Bill. If you would like to introduce yourselves?
Mr Dixon: I am John Dixon. I am Director of Social Services in West Sussex and I am Chair of the Disability Committee of the Directors of Social Services, the national association.
Mr Collingridge: My name is Graham Collingridge, I am County Manager for Mental Health with Hampshire County Council, and I am on the ADSS Mental Health Strategy Group.
Q427 Chairman: As you know, there is already a framework of case law which governs the area of mental incapacity. How does this Bill make things better? Also, has the consultation between the department and the Directors of Social Services been adequate? Are you confident that further consultation over the Codes of Practice, which will be very important, will be adequate? The final part of this question is, do you feel there is enough in the Bill or is too much being left to the Codes of Practice?
Mr Dixon: I think the first thing that I would like to say is that I think a lot is being left to the Code of Practice at the moment. We feel that there has been the beginnings of consultation between the department and stakeholders, including ourselves, and we have appreciated that this is a novel approach to the construction of this Bill and we have been keen to respond to that. However, on the whole we think that we are not yet speaking in the same language, so that communications to us have not been direct and there has not been the use that there should have been of the Department of Health channels for talking to chief executives and others. We have made those points and we hope that that is going to be rectified in terms of the type of communication. We have had, I think, a good meeting of minds in the discussions we have had. On the larger point, I think that there are aspects which could have been brought out significantly further in this Bill than were. Those are things that from the social services' point of view we would particularly be able to comment on, and we have spoken - I have spoken personally - with our service users who have very strong views about this. So although I think the Bill is beginning to move in the right direction there are other opportunities that could be taken to take things further because it needs to complement national policy in this area, particularly around issues like valuing people - people with learning disabilities. It is important to hear from service user groups about what the implications of the Bill will be for them, because there are many people who would say, and we would endorse that, that it could be seen as a charter for carers or a charter for social workers rather than a charter for service users. Does it adequately consider the needs of service users? Does it signify the sort of major shift that I think has been seen in public policy over the last few years, both under this Government and the last one, about the expectation of what social services should be able to deliver for service users in the same way as the Children's Act signified a fundamental shift of approach and is still regarded as at the cutting edge of public policy 14 years on? My feeling is that this Bill goes a distance but in another five years' time could well be seen as outdated because it does not take forward adequately the notion of citizenship of people who are vulnerable. For example, we say there is no mention of the word "advocacy" in it. Without advocacy people cannot adequately speak for themselves. We, the social workers, would not presume to speak for people who have mental impairments and we think that lawyers and others should not do either. So we think it is a step but it needs to go significantly further if it is really going to enhance the citizenship of these people.
Q428 Chairman: Surely we are not going to wait another five years if these things are understood now? Would you recommend that we should put them into the Bill?
Mr Dixon: Yes.
Q429 Chairman: How would that be done? By extra clauses? What is a specific example?
Mr Dixon: I think it is about a shift more towards enabling people to be able to speak for themselves. There are certain presumptions against people being able to speak for themselves or with people who will be advocates for them.
Q430 Mrs Browning: Can I ask you how you are seeing the role of the advocate in this respect? Is it somebody who is independent, not a named social worker but somebody quite stand-apart who is answerable to the department that has the resources? That is a dilemma for advocates who are also the named social worker.
Mr Dixon: It is absolutely essential. In this context I would not describe certainly a social worker nor even indeed a legally qualified person as an advocate; we are talking about somebody who is completely outside of anybody who has control over resources. That is absolutely paramount. It is very likely they will be from a voluntary organisation. That is the normal way in which we work.
Q431 Mrs Humble: There is a later question about resources for advocacy and I do not want to trespass upon that area, but there are two issues here. One: should there be a national advocacy service just to complement the clauses and the elements in this Bill where advocacy may be of some use? Or are you looking at enhancing the development of local advocacy services - and they are patchy? I declared an interest as regards the Blackpool advocacy, and I know the excellent work that Blackpool advocacy services does do. Many of the local advocacy services have time-limited funding to undertake specific projects. Hopefully, if this draft Bill becomes legislation, it will go on rather more than five years and for some time. Are you envisaging a national service that people can fall upon to make sure that this Bill is properly implemented, or would you still be relying on the local services and that patchy network of local services?
Mr Dixon: I would be expecting to see national standards and national expectation that advocacy is available which requires funding. At the moment, we do fund - social services departments and others - a significant element of advocacy. I would not necessarily go so far as to say there should be a national advocacy service because that could be a pretty unwieldy beast and may not actually have the sensitivity to local circumstances that we would like to see. I would expect that there would be an expectation that service users should have access to advocacy. It should be a right, particularly in these circumstances.
Q432 Mrs Humble: You were talking earlier about your concerns on behalf of the ADSS. One of the issues with regard to this Bill is that there has been a lot of concentration on the medical elements of it and the role of clinicians and what happens when an individual lacking mental capacity goes into a hospital. Of course, many of the people with whom this Bill is concerned will, as you have said, be capable of communicating. What more, if anything, can be done to emphasise that point, and the fact that the legislation is actually looking at that much wider group who are in the community cared for either on an informal basis or through statutory agencies like social services?
Mr Collingridge: One of the things we are wondering about is - right up the front of the Bill - emphasising that people with mental incapacity or possible incapacity are citizens, and have that right up front, along with duties to promote citizenship. We know there is a lot of concern from, for example, people with learning disabilities that they will lose the rights that they have currently just won through Department of Health policies like valuing people and the national service frameworks for people with mental health problems. I think perhaps right at the very front of the Bill, to make that first point very, very clear, and also in the Codes of Practice, that we are promoting individual civil liberties. We were very heartened this morning to hear Lord Filkin talk about the new role of the Department for Constitutional Affairs and how that is what he wants to see, promotion of rights and civil liberties in the 21st Century, and not just making the current system work better. There should be more of a shift in the Bill on that emphasis.
Q433 Chairman: If the Bill states there is a presumption of capacity unless proved otherwise, that is the same as every other citizen. Is that not enough?
Mr Dixon: I have worked in social services for a long time now and we have seen a sea-change in the way we need to relate to people with vulnerabilities. It is not just enough to say that they are citizens like anybody else and therefore they need, as it were, to exercise their rights like anybody else. People need assistance in order to explain what they want to see happen and assistance in realising those life choices. We need to make a very active reaching-out in order to enable people to do that. It is a qualitatively different approach and it is remarkable what people can do if we do reach out to them in that way.
Q434 Lord Rix: You are saying you would like to see provision for advocacy at the beginning of the Bill. Is that what you are saying?
Mr Dixon: Yes.
Q435 Lord Rix: If so, how are you going to provide the additional resources necessary to provide this advocacy?
Mr Dixon: The question of resources is something that we are going to need to come to. It is not mentioned; it is regarded effectively as being cost-neutral, I think, in the way this Bill has come forward. We feel very strongly that it does need to be resourced. If it is going to produce qualitative outcomes, different outcomes, for people then it is going to require a different level of resourcing. One of the key areas is not within social services but, as I say, within the resourcing the voluntary organisations will need in order to help people with incapacities to become fuller citizens.
Q436 Lord Rix: Do you mean it would be a sort of Section 64?
Mr Dixon: Indeed.
Q437 Baroness Fookes: You have stressed the importance of advocacy services. Could you have a stab at the kind of clause that should be added to the Bill, if not now later on?
Mr Dixon: Certainly, yes. I would not want to venture to do that at this stage, unless Graham has ----
Mr Collingridge: I am not going to, no, but we would be delighted to assist you.
Q438 Baroness McIntosh of Hudnall: Going back to your earlier remarks, you said you thought the Bill, as it stands (and I do not think I am misquoting you) "could be seen as a charter for carers or service providers rather than service users".
Mr Dixon: Indeed.
Q439 Baroness McIntosh of Hudnall: You are implying in that that the presumption in favour of capacity is not, amongst other things, strongly enough worded. Can you give us any indication of how the wording could be better constructed to strengthen the idea? If we do not do that with the Bill, what dangers do you think those who are intended to benefit from it will be in as a result?
Mr Dixon: Shall I take the second one first? Can I say the good thing is that it confers upon carers and social workers the ability to act in ways that previously might have been seen to be illegal. This is seeking to remedy that and it is important that that should be addressed, because otherwise people will feel vulnerable when they are acting in people's best interests. That is at the heart of the Bill. The problem is that it could, in the wrong hands, be tipped in another direction. You or I, if we were walking down the road and we looked a bit weird or we were behaving a bit weirdly, could be set upon by somebody with a general authority and taken in hand, or, more likely, one of our children. That is an extreme case, but it potentially is open to that degree of abuse. Vulnerable people, people with learning difficulties and others, are quite open to being coerced by people around them. That is what we are concerned about.
Q440 Baroness McIntosh of Hudnall: How would we write on to the face of the Bill the kind of language that would prevent that from being possible?
Mr Collingridge: We have had some thought about this since we saw this question and we are wondering whether or not it is not the right question.
Q441 Baroness McIntosh of Hudnall: You think of the question and I will ask it!
Mr Collingridge: We do not think it is simply a question of tweaking a few words in a clause. Going back to the earlier point about citizenship and advocacy, if that is there then I think people will have more confidence that their needs and rights are being met.
Baroness McIntosh of Hudnall: Maybe.
Q442 Lord Pearson of Rannoch: My Lord Chairman, I am not quite sure whether my question should come under the first question or this one, but I wonder if I could put a question to you speaking as a parent on behalf of the families of the severely learning disabled, or people with a mental handicap or intellectual disability - however you choose to describe it? I notice in your submission, MIB1040, under paragraph 2 and the five areas of involvement which you see social services departments having, you do not actually mention liaising with families. As I expect you are aware, thousands of families of mentally handicapped people do feel they are going to be bogged down and are not particularly well-helped by social services. We have indeed, if I can just quote it very briefly, a supplementary memorandum from one of our Scottish witnesses, looking at the experience so far of the Scottish Bill. She says: "Unfortunately, some of the practices of certain local authorities have been viewed as bullying tactics by relatives and carers, where situations of resistance arise, particularly as regards where an adult should reside." She goes on to say "The particular problem is when the family feels that the adult should continue to reside in a care home setting but the local authorities insist that the adult moves out to live in the community", and she gives various examples. Do you accept that there has been a problem in this area? How do you see the families of these people being helped; perhaps their wishes being balanced in future with those of the professionals in general? Or do you, when you refer to service users and citizenship and advocacy, really expect that a lot of these families are not very helpful and that their views are not quite, perhaps, as accurate and professional as your own?
Mr Dixon: No. Firstly, I should say that usually it is the parent who knows more about the child and the needs of the child than any professional.
Q443 Lord Pearson of Rannoch: I agree.
Mr Dixon: It is the way in which parents have fought for the needs of disabled children which has begun to force the sea-change in public attitudes that I was referring to earlier. In the time that I have worked within social services I think we have come to the era of professionals being much more humble than we were in the past, because we do not have any monopoly on knowing what is right. I think the valuing people proposals are very, very helpful in that way, and I think we are constructing a new way of hearing what people say and responding to it. That is, of course, service users but it is also families, particularly when you are talking about disabled children who could, of course, often be adults.
Q444 Lord Pearson of Rannoch: I am grateful for that. Of course, a lot of the parents who are looking after a lot of these people are now starting to die at a greater rate. You would be quite happy to see parents and families becoming deputies, providing that there were not obviously after Aunt Agatha's money?
Mr Dixon: Yes, we would.
Q445 Stephen Hesford: Can I bring you back to what you were speaking about before because, speaking for myself, I am quite confused by it? This Bill has a functional approach and we have heard evidence that that is in fact a struggle (?). What you seemed to be saying before was not a functional approach, and it seems to do with the issue of human rights. If this Bill was human rights compliant (a) would that not deal in part with what you were speaking of before? The Scottish legislation, which we have heard quite a bit about, does not deal with advocacy on the face of the Bill, and we have heard that that functions satisfactorily, certainly as far as the Scottish system is concerned. It does not mention citizenship at all either, but it has a series of principles. What is the difference between what you were saying before, what we have got in front of us and what the Scottish Bill does and how can you firm it up - in terms of a clause or something that we can get a grip of - in terms of speaking about advocacy and citizenship? I just could not get a grip of what you were in fact saying to us.
Mr Dixon: I think it is a question of whether you see yours as being able to capture the sort of shifts in public policy and ethics, rather than simply being functional. I saw the way that the Children Act described a new definition, as it were a contract between the state and families and children, as representing a significant difference. I do not think this Bill begins to approach that yet, and that is what I am sorry for. I am not a legal draftsman, so I could not comment precisely on how it should be put into effect, but I think that it should be able to capture the changes in public policy that have taken place in recent years and to, as it were, hand them across to local authorities and others to begin to take them forward in practice.
Q446 Chairman: If we did decide to include the principles of the Bill at the beginning, which has been suggested of course, that would help to meet your point?
Mr Dixon: It would indeed.
Q447 Mrs Browning: Can I explore this a little further because I am rather in sympathy with the case you are making. At the moment, and I include myself in this, for those of us who are involved very much with adults with learning disabilities and the sort of problems they come up against, one of the biggest problems is that there appears to be no real statutory framework against which one challenges. Ultimately, in case work, much as one loathes to do it, one gets to a point where the advice is to test it in a court. I am sure you will agree it is becoming far more frequent now to challenge social service departments in the courts on behalf of adults with learning disabilities.
Mr Dixon: Yes, indeed.
Q448 Mrs Browning: Do you see what you are proposing helping to minimise that recourse to problem resolution? I am hesitant because the resource implications of it are enormous. However, at the moment the resource implications are enormous because you are having to call expert witnesses across the legal process, etc etc. Do you see that helping to minimise the challenges through the courts?
Mr Dixon: Yes, I do. I think there is a place for law in providing that framework and in prodding local government to move in that direction. The resources that are spent in this area in relation to the legal challenge, at the moment, are significant but not overwhelming. It is, really, the resources which are spent on poor quality treatment and services for people with learning difficulties that are the real crying shame.
Q449 Mrs Browning: I agree with you.
Mr Dixon: Having somebody in a very expensive place inappropriately is bad for everybody and bad for the public purse. Obviously, I speak from a very pragmatic point of view rather than specifically from a legal point of view, but I do know the help there can be in having a good framework.
Q450 Mrs Humble: I am not quite as phlegmatic as either you or Angela Browning that this Bill will actually help you. Anyway it goes back to Lord Pearson's point about the role that parents have to play in this. I tell you why I have one or two concerns, for two reasons. One, traditionally social services has been in the risk business. Social services push people as far as they can go, and for the group of people that this Bill is concerning - either those who totally lack capacity or, more importantly, those who have variable capacity - the social worker temptation is always, always to push them as far as they can go in making decisions on managing their own lives. Yet parents get desperately worried about that. Many of the disagreements between social services and parents are because the parents want to cocoon that child as it becomes an adult and well into adulthood and want them protected - want them in the care home or nursing home - and social services say "Actually, your adult offspring can, with support, be in the community and should be engaging with the community". So there is always that tension. Specifically, this Bill makes reference to the fact that the person with a variable capacity, especially, or even somebody who has capacity and then is likely to lose it, may make decisions that you or I disagree with. We have to accept that those decisions are ones that we do not agree with. So will that not add to some of the very difficult decision-making processes that social workers have to go through? They already have an extraordinarily difficult job to do but when they are having to deal with parents who, by and large - and I am generalising - are very protective, and are having to deal with people where they have to, because of this Bill, acknowledge that neither the social worker nor the parent may agree with those decisions, will this not, in fact, make your job even more difficult? Tell me it will not.
Mr Dixon: I think people have a right to make decisions which are independent of professionals and independent of their parents. That is important, and we need to ensure that they can do that. On the other hand, I think one of the reasons that parents have difficulties with social service departments and why they are anxious about protecting their children is because they very often have little or no guarantee that they are going to get services. If you have fought for services for your child for 20 years against an unforgiving system which has only allowed you services inch by inch, I think you get desperate. As you get older you are worried about what is going to happen when you are too frail to look after your child. I think it creates a feeling of protection as opposed to risk-taking. I would not want to criticise colleagues, but when saying that you can take a risk with this child it is the parents who are going to be around if it falls down; the social worker may have moved on or whatever. I think it is much more about creating a partnership between us, as social service departments and parents, in a mature way. I think if we have a framework which enables us to do that it will make our job easier, because we cannot be adversarial.
Q451 Huw Irranca-Davies: Can I ask you to help me summarise the preceding discussion? In terms of the Bill as a whole, as it is currently presented, and the rights of the individual - the user of these services - what we have in the Bill is an improvement but it is not bold and ambitious.
Mr Dixon: Indeed so.
Q452 Huw Irranca-Davies: The Scottish Bill, from what you were suggesting, would be an improvement even further in terms of this clarification of the rights of individuals. What you are putting to us is that you would like us to have a step-change, in effect.
Mr Dixon: Indeed.
Q453 Huw Irranca-Davies: Which would be way above what the Scottish Bill has and certainly what this has at the moment.
Mr Dixon: That is indeed it. I think the problem is that in the public policy of this country we are moving fast on child care policy and it is very exciting. In relation to older people there is great ferment about what should happen and so forth. However, in relation to people with disabilities it is in the "too difficult" box. There is a tremendous amount of change in there, I think, waiting to get out. Talking to service users and their parents, I think there is a great opportunity to move things forward. It would encapsulate quite a lot of what is beginning to be around in government policy, which is very helpful.
Q454 Baroness Knight of Collingtree: I do want to come back to the question of resources. I notice that when you were writing on Clause 16, your second point on that clause was "the extension of the powers to welfare decisions is likely to result in additional demands on services which are already at capacity." Now some of us, particularly those who read in the newspapers of unfortunate cases where a child somehow or other slips through the net, are only too well aware that every social worker seems to have about 103 cases each, and how on earth any more could be accommodated is something that we are going to have to look at very hard, and you have drawn our attention to it. Have you been able to make any reliable and detailed estimates of what this would all cost in terms of extra staff, extra money, training resources and so on? How will the Bill be properly implemented unless a lot more is spent, and have you any idea how much money that will be or where those resources could come from?
Mr Collingridge: The short answer to your question is no, we have not done the detailed work. We have started in the last couple of months to talk to the Department for Constitutional Affairs and Department of Health about what the areas are. I think our response mapped out some of the issues. In the last few weeks we have been looking at what the likely demands through the adult protection system are, etc etc, but we have got a very long way to go at this stage. So we are just mapping out what are the various factors that we need to put into the equation, and we have now identified groups of people that can start to do that work.
Q455 Baroness Knight of Collingtree: Am I right in thinking that the same people who will be called upon to implement the welfare sections in this Bill are already pretty well overworked as it is?
Mr Collingridge: You are quite right. That is a major concern, and if the adult protection arrangements that have started to come in start to bear down and you have this as well, then, yes, there are lots of opportunities for increased demands, and we do not know how we will meet those at the moment.
Q456 Baroness Knight of Collingtree: Are you ready to try and bring in some regulations within your own departments to make sure that certain sections of your department are not going to suffer by having a sudden movement of social workers away from them?
Mr Collingridge: One of the issues is that there are not duties under this Bill for local authorities to act under it. I think that is even the case at the moment with adult protection, except for a more general duty. So you will find, as you go around the country, very different responses to the same set of policies. We have that at the moment with the current Court of Protection arrangements. My authority in Hampshire has quite a well developed system; John's next door, until recently, did not do very much. I think unless there is adequate resourcing, and it is going to have to come not from local taxation but centrally, then I think authorities will decide probably not to implement parts of this Bill effectively because they cannot divert resources from, for example, facilitating early hospital discharge.
Q457 Baroness Knight of Collingtree: Of course, there is not a lot of point for us in this Parliament passing Bills that have sections within it which cannot be implemented, which might be a difficulty. Since you raise the question of the Court of Protection proceedings, this does really raise another cost implication. Do you think that the costs of that should be met from central funds, and do you think that Legal Aid should be called in to help with the cost of other parties?
Mr Collingridge: We do think that, yes, local authorities should be assisted with the legal costs of doing that. We have had a look, for example, in our own authority about the costs of one case, and if you get a complex case it is £7,000 to prepare it and, perhaps, £15,000 or more to go through the full legal system. We have got two of those at the moment, and that is more than the cost of a social worker each year. When you start to look at the implications they are quite significant and I do not think that local taxpayers can be expected to meet all those costs.
Q458 Baroness Knight of Collingtree: It certainly is emerging that you are as concerned as we are about this matter. Finally, could I ask you whether in preparing the Bill the Department for Constitutional Affairs has consulted either adequately or inadequately with the local authorities on this whole question?
Mr Collingridge: They have consulted with us. It is not adequate yet. We have had some initial discussions with them about the resource implications. At the end of August they issued a request to map out the information implications in terms of publications, and we found that perhaps up to 50 publications might need to be altered - five or six substantially. In terms of anything else we have not really begun the process.
Q459 Baroness Knight of Collingtree: Is it recognised that this is only the beginning?
Mr Collingridge: Yes.
Q460 Baroness Knight of Collingtree: So further consultations are actually scheduled?
Mr Collingridge: I have spoken to the people and yes, they have given an undertaking to meet with us to work out in more detail the implications. That is particularly dependent on, I think, the report of this Committee and what exactly are the implications on and the expectations of local authorities.
Q461 Huw Irranca-Davies: I have listened with interest to the immediately preceding comments in respect of the Bill as it stands now and the impact on resources. If, to go back to the previous discussion, we were to look at the much more strengthened, central role of the rights of citizenship and so on, you must have put some thought to this as to the impact on resources of much more central, much more focused rights of the individual?
Mr Dixon: I think it would have some greater resource implications but I think it would be more that it would be underwriting the change in public policy that I think is happening already and which I think needs to be given an additional push. It would be very difficult to quantify.
Q462 Huw Irranca-Davies: So you anticipate those demands will become apparent regardless of what we put on the face of the Bill?
Mr Dixon: Yes. I think, to some extent, that affects the whole of this Bill. For example, in relation to Court of Protection work, Hampshire has started to do this work on Court of Protection, obviously, before this Bill has been enacted, and we have done too. It is because there are changes in expectations that we have got to respond to anyway, and the issue about adult protection has become a very major issue around the country. Again, without proper resourcing I think it is important that it is brought within the legal framework.
Q463 Mr Burstow: It is that point I wanted to go back on, the whole question of adult protection. Two or three years ago now the guidance was issued by the Department of Health No Secrets. Can you tell us what assessment you have made of the implementation of that guidance by local authorities? Are we still at the stage of codes of practice and training or are we now at the stage of having procedures that are actually having a reaction on the actual delivery of service and in dealing with abuse in care settings?
Mr Collingridge: My conversations with my colleagues around the country on this issue over the last week have revealed that there are quite different responses from authorities. My own and Herefordshire (who have just agreed to take the lead on this in our ADSS) have got some well-established guidance and local overview committees, practices and training in place. Other places have not really begun to implement it very substantially. It is not a matter that, at the moment, is regularly reported on to the Department of Health. As far as I am aware, there has been no particular inspections. So, frankly, we do not have, as yet, the overview. We would expect some time in the new year, with our new committee ourselves, to have a bit more of a feel, but it does feel a bit patchy at the moment.
Mr Dixon: Could I just add that we do feel bothered that after No Secrets had been launched it has tended to slip a bit out of the public eye. I am Chair of the Adult Protection Committee in West Sussex and we have quite significantly taken action in this area, we have had a number of adult protection investigations; it was on the television about a care home in West Sussex, an independent care home, last week and automatically the National Care Standards Commission picked it up and referred it to an adult protection investigation. So there is a lot of activity going on around this.
Q464 Mr Burstow: Are there any ways in which this Bill could help facilitate the roll out of No Secrets and the strengthened implementation around the country?
Mr Collingridge: There are. We have heard some lobbying and I think you have probably heard it too - suggestions that local authorities should have statutory duties to intervene. I believe, for example, in the general authority, when that has not been working terribly well or there is conflict, perhaps there is a role for local authorities there. You can certainly think of issues around that area where we should have stronger powers to intervene, and perhaps a duty.
Baroness Fookes: I do not have a clear picture of precisely what additional resources would be needed. Could you reduce it, as it were, to one local authority, one social services department? Would you need X number of additional social workers? What would be the cost per year and how is this going to be sold not to the Department for Constitutional Affairs but to the holder of the purse strings, the Treasury?
Q465 Baroness Barker: I have an additional question that follows straight on from that. Does the way in which social services departments relate to different client groups in different ways have an impact on the quality of the service? Does that have a very significant impact for a detailed Bill that covers very different client groups?
Mr Collingridge: As I said before, we cannot give you detailed numbers. I can tell you, for example, in Hampshire how many social workers we have got.
Q466 Baroness Fookes: That is what I want to know. For a particular authority.
Mr Collingridge: I have my statistics here in front of me for Hampshire County Council social services. For example, we have got 200 managers of various sorts, 650 social workers and another perhaps just under 3,000 field workers of various sorts - support workers, home care workers. Plus, of course, you have got a whole tranche of people in the independent sector which I have not counted there. All of those people will need a basic level of training. Then, of those 650 social workers, if you are going to have to allocate particular adult protection cases - and we would expect demands to go up over the next few years - you might be able to factor in after a bit of research how much extra demand, but I cannot tell you. That is the baseline from which we are working at the moment in a total population in Hampshire of 1.2 million. Those kind of figures I have just given you, I can do more on that, but just to emphasise, Hampshire is one of the wealthiest county councils and, therefore, our numbers are relatively low in comparison to more metropolitan areas. That gives you a ballpark figure of where we are starting from.
Q467 Baroness Fookes: How many additional social workers, for example, might you be thinking of?
Mr Collingridge: We do not have a figure to put on it at the moment.
Mr Dixon: For adult protection an authority of the size of about half-a-million to one million people might have appointed about three additional social workers. It is not a vast amount. It is certainly affordable. It is, I hope, not so much that it would scare (?) the Treasury's function.
Q468 Baroness Fookes: Are they there to be called upon? I thought there was a shortage of social workers.
Mr Dixon: There is.
Mr Collingridge: The recruitment and retention of social workers is a major issue. The Department of Health has been engaged in some work nationally to try and raise the profile.
Q469 Baroness Fookes: Even if you have the money it may not necessarily be easy to get the bodies?
Mr Collingridge: That is right. There needs to be a whole strategy around this. If I can just add as well to the issue about figures: I looked yesterday into how many adult protection referrals Hampshire had had. We had 80 in the first six months of this year. So that perhaps gives an indication of the size we are looking for.
Q470 Mrs Humble: Of course, it is not just social workers, it is your trainers, it is the administrative staff, it is the back room people who make sure the social workers can do the job.
Mr Dixon: Absolutely.
Q471 Lord Rix: Could I add to that? You mentioned independent agencies; I presume you mean voluntary bodies, I presume you mean parents, you mean carers, etc. They have all got to be added to the bill, too, in some way or another.
Mr Collingridge: Yes.
Mr Dixon: An adult protection committee now comprises about 20 different organisations, including voluntary organisations, including a range of statutory organisations and others. Could I answer the other question about the impact on different, what we would call, client groups? I think that is a very important point because we do provide a differential level of service to different age groups and people with different ranges of need. I think part of, as it were, our bid today is to be saying that this is a group of people who have tended not to get their fair share of the resources that there are going because their profile is lower. I think it is important that we should address that because there is a groundswell of need and a groundswell of opinion that we should move to assist them.
Q472 Baroness Barker: Following on that point, in the additional resources you are talking about, what would be the impact (?) of Directors of Social Services to act as court appointed deputies, able to take welfare decisions for people who lack capacity? Could you answer that in light of the different and changing financial interests of charging policies which your departments are likely to be entering into?
Mr Collingridge: First of all, I think possibly many more authorities are going to have to pick up on the financial issues and have receivership limits like, for example, Hampshire has. That costs us about £120,000 a year, of which we get back some money in charges. Secondly, there will be additional social workers for cases. I think you will have to have an individual person allocated to keep a close eye on the people for whom we have powers. Thirdly, of course, there are the legal costs and administration. We may need some additional administrative committee-like committees to oversee implementation - I do not know. There is one other issue which you, perhaps, were not expecting me to say on this, but in our discussion with the Department for Constitutional Affairs they talked about not the Director but, perhaps, people lower down in the structure having the legal power. We have got some concern about that; we think perhaps it should be the statutory function of Director who then delegates down, but certainly some of the thinking was perhaps to give the legal powers to a manager or even a social worker, and we are not terribly happy about that. That is the first part of your question. I cannot remember what the rest was now.
Q473 Baroness Barker: I wanted to focus particularly on charging policies and potential conflicts of interest. If I might add to that, what are the implications for this work when you are increasingly involved in joint planning of services with PCTs, for example?
Mr Dixon: Clearly, we need to think through what the implications would be for charging, but local authorities are very used to charging where we can because, otherwise, we are not going to be able to provide services for others who are in need of them. So where that is feasible and appropriate we want to explore that possibility as part of the development of the codes of practice.
Q474 Baroness Barker: How would you deal with conflicts of interest?
Mr Dixon: I think, to come back to the point we made at the very beginning, we have a clear responsibility to receive tax, to raise taxes locally and to try and square the equation in terms of the way we spend the money in relation to meeting our legal obligations and, indeed, our moral obligations. We need to establish advocacy and support for families and for service users to balance out what is that evident conflict of interest between us. The executive, whether it be a local government executive or national executive, always has that conflict of interest between resources and what we spend. It is the job of advocates, as it is the job of families, to be unconcerned about the resources but to be concerned only on the need. We need to have somebody who will come forward who will tell us also what that need is, so that we can hopefully do better at balancing that equation, but is a perennial problem that we live with.
Q475 Lord Pearson of Rannoch: Forgive me, but how can that be up to a director of social services?
Mr Dixon: I think there is an issue there. I think there is a potential problem. On the other hand, we do, not infrequently, intervene in people's lives whether it be children or whether it be adults where other people who would be expected to undertake those responsibilities fall down. So if somebody has a general authority and is abusing that in some way, or there is an adult protection issue around an LPA then we would expect to intervene because somebody needs to do so. There is a principle here, in the Bill, of the least intervention in people's lives, and that is very important.
Mr Collingridge: Your question prompts me to think about some of the new arrangements that have come in recently about scrutiny and overview committees. Our one in Hampshire has just reminded me recently that they could scrutinise what I do, and there is a whole new set of relationships and functions in local government whereby the executive is called into account by other groups of elected members. So that offers a possible check or balance.
Q476 Baroness Knight of Collingtree: Coming back to a point you made just a few moments ago, in your submission to us you say at one point "We would like to know what proposals are being developed to enhance access to these services through the voluntary and independent sector, including the resources made available." Was that just a cry in the wilderness or were you actually hoping to get an answer there? If so, from whom?
Mr Dixon: That is back to the advocacy question. I think it is not a cry in the wilderness ----
Q477 Baroness Knight of Collingtree: You anticipate getting an answer at some point?
Mr Dixon: Yes, indeed.
Q478 Baroness Knight of Collingtree: From whom?
Mr Dixon: Anybody who is prepared to give it!
Q479 Mr Burstow: I wanted to come back to this issue of conflict of interest. It is really central to the part that local authorities and social services departments will play in giving effect to this legislation. Are you saying to us today that you have a clear idea of how you would separate out your responsibilities as a substitute decision-maker for an individual who lacked capacity from your responsibilities both as executive and scrutineers of your activities in carrying out your fiduciary duties to your ratepayers, or your council taxpayers? They are two completely separate things. If one over-weighs the other, and you act in the interests of the ratepayer, you may well means-test someone and charge them, dispose of their assets in circumstances where, in fact, if they had capacity, they may well have wished to contest the argument and, indeed, argue that they had, for example, continuing care rights that were not being properly discharged. How do you square that circle? Can you square that circle?
Mr Dixon: No, you cannot square the circle. It is a continuing tension and it is one that we live with on a daily basis. Social workers take decisions, managers take decisions, and I, along with our elected members, oversee those decisions on a constant basis. I think it is impossible to take that tension and that task away from any executive. You always have to balance out the question of meeting need with rationing the resources that are required to meet that need.
Q480 Mr Burstow: With respect, if I can come back, I think the problem here is you are talking about the dilemma of an institution, like a local authority, having far more need than it can possibly resource. That is one issue and that is a tension that, of course, should remain with you. However, then there is the responsibility that this Bill can place upon you of acting as the person who lacks capacity and taking the decisions for them. How do you resolve having to act in their best interests at the same time as acting in the best interests of the council?
Mr Dixon: I think it is a conflict of interest. It is better in many instances for us to come in in an investigatory capacity rather than to have it on a long-term basis. Sometimes, in default of anybody else, we have to step in.
Q481 Chairman: The situation that you are now describing is one which is covered by common law. This Bill, as we said earlier, puts into statute what is now under common law. Will it make that tension that you describe easier or harder to resolve?
Mr Dixon: I think it does make it easier because it is about laying down further what it is that is expected of us.
Q482 Chairman: And there is a legal framework for you to work within, is there not?
Mr Dixon: Yes.
Q483 Lord Rix: How would you see yourself as intervening in the case of a person who was deemed to have capacity but goes on making unwise decisions? How would you protect that person and how would you protect the parent or the carer if they reverse that decision from, say, a civil action?
Mr Dixon: I think that is a very difficult question. Enshrined in this is the right for people to make unwise decisions and I think that is very important because who is to say what is a wise or an unwise decision. It is the case that family disputes constantly centre around how people spend their money, how they spend their time, children and adults and so forth. We need to be very careful about how we step in to second-guess other people. I think this is where we would come back to this question of advocacy. Often we are swayed by very pragmatic considerations and may miss out on some of the more ethereal considerations that people want to take or maybe the spiritual considerations that people would take into account. Equally, families will support their loved ones in a certain way but may be very anxious about the consequences of them exceeding certain expectations or taking certain risks. I think we would come back to the importance of advocacy in providing a statement about what the individual thinks. This is not an area where things can be cut and dried, it is an area which comes down to the individual and their family.
Q484 Lord Pearson of Rannoch: One accepts that, but surely one part of the answer to the dilemma you have very honourably exposed as being both the executive responsible for the money and also having to do your best for the mentally incapacitated person should be that the balance of who is appointed as a deputy or an advocate or whatever should perhaps move more towards the family and away from the professionals. That must be different in every case.
Mr Dixon: Yes.
Q485 Lord Pearson of Rannoch: It is only part of the answer.
Mr Dixon: I agree. I do not think it fits well with any professional undertaking that role.
Q486 Lord Rix: This question arises out of the blue. In Canada there has been quite a lot of discussion about the title of the Mental Incapacity Bill. You have talked a great deal about supported decision-making. Would you like to follow the Canadians and perhaps change the title of this Bill to Supported Decision-Making Bill?
Mr Collingridge: I have been influenced this morning by hearing from the Department of Constitutional Affairs, so that would be very difficult. We have not actually discussed that matter.
Q487 Lord Rix: But to a certain extent it would support your contention.
Mr Collingridge: It would go along with those lines, would it not?
Q488 Lord Rix: Indeed.
Mr Dixon: As I understand it that was the original working title of the Bill. No doubt it could be changed in that way.
Q489 Mrs Browning: In these hard cases you have to deal with and exercise your powers for people without capacity how frequently do you come up against trust law and does it help or hinder your ability to take decisions?
Mr Dixon: We do come across it from time to time, but in my experience it is pretty rare in that most people who we deal with do not have the sort of assets which would fall within that ambit at all, but it does happen.
Q490 Mrs Browning: Does it help or hinder you, trust law as constituted at the moment?
Mr Dixon: I cannot recollect any occasion where I have experienced a legal problem on that.
Mr Collingridge: I would be very happy to go back and ask my staff, but I do not know of any, it has not come across my desk and I am the manager who manages the receivership unit.
Mrs Browning: In a way trust law is used by people who do have assets in order to try and secondguess what somebody will need later on and in a way it is very similar to some of the arguments we have been talking about in respect of this Bill.
Q491 Chairman: I think we have reached the point now where we have some other witnesses to see. Maybe you would be kind enough to write to us in some detail on that last point. You have touched on it in your previous answers but it would be helpful if you could write to us. We are extremely grateful for your attendance. Thank you very much indeed.
Mr Dixon: Thank you.
Memorandum submitted by Master of the Court of Protection
Examination of Witness
MR DENZIL LUSH, Master of the Court of Protection, examined.
Q492 Chairman: Mr Lush, thank you very much for attending. Perhaps you would like to introduce yourself and then we can proceed.
Mr Lush: I am Denzil Lush. I am the Master of the Court of Protection. I have been in post for seven and a half years, since April 1996.
Q493 Chairman: Thank you very much. Your submission starts by saying at the very beginning that you support the broad thrust of the draft Bill, but you end by saying (paragraph 23) that the main issue before the Committee is whether there is a need for this legislation in the first place. Have you still any doubt about that need? Is not the key question whether, if there is a need, the draft Bill meets it? Or do you think the needs of people lacking capacity can be addressed other than through this legislation?
Mr Lush: I think perhaps you might have misunderstood what I was saying. I was saying at the end of the submission that the most important question before you is whether there is a need for this legislation in the first place. I assume you have had some people lobbying and saying you do not need it. If that is the first and most important question, the second is whether you have got it right in terms of the balance between autonomy and what we call protection. I have no doubt in my own mind that there is a need for this legislation. I think the current state of affairs particularly with regard to medical decision-making powers is unsatisfactory. My court only has jurisdiction over financial and property affairs. Just an hour ago I was finishing a hearing that largely revolved around where somebody should live, whether he should live in Blackwall or go and live in Birmingham. We cannot decide for him, but the money that we hold indirectly might have some implications on that.
Q494 Chairman: If there is somebody on a Protection Order and you have the ultimate responsibility under the Protection Order for the finance etcetera but there are other decisions which will be taken, not by the receiver, to do with health, welfare, social care, you have no influence or responsibility for that at all, have you?
Mr Lush: No, not really, only the financial aspects.
Q495 Lord Rix: In paragraph 8 of your submission you seem to suggest that someone who makes a series of unwise decisions should be treated as a person who lacks capacity. Could you possibly expand on this? I will then ask you a question about the presumption of capacity being set-aside. How would you agree on situations that would make that possible?
Mr Lush: I think one of the problems here is the distinction between specific issue capacity and more general capacity. In the Court of Protection we deal with the big damages awards that come in for personal injury, criminal negligence, criminal assaults and so on. I reckon it is about 350 of these a year and they are for large sums of money. There have been three in the last 12 months that have produced formally just short of half a billion pounds, £496 million-worth of damages. Our client group tends to be young men in their late 20s who have had road traffic accidents and usually elderly women of 85 plus, usually widowed, usually living in Bexhill or Christchurch and so on at the other extreme. One of our particular cases was where a young man had been awarded £2 million damages. He came in with a wish list. He wanted to buy a five-bedroomed house in north London for just over £1 million. Bear in mind that he is a single man with no dependents, although I think he wanted a chef to take one of the rooms. He wanted a villa in Turkey where he had family connections, a villa in the US, a top of the range limousine with a chauffeur, an executive box at Highbury Stadium and a Rolex watch. I suggested to him that when a damages action is completed the court usually says you can have a little bit of a celebration, a little bit of a splash, so you can have the Rolex watch for £5,000. He then went down to a jewellers and chose it and the receiver paid the bill, but three days later he had traded in the Rolex watch for £3,000 and used it to fund a drag habit or something like that. What I am saying there is that there would be a series of unwise decisions. He might have the actual understanding or capacity to make each of those decisions to buy the £1 million house in north London, but there is a general lack of capacity rather than a specific issue. We had a similar problem at the other end of the spectrum with a lady who lived in Surrey who was taken to the cleaners by some people who were selling cleaning materials, I think they were called "Nottingham Knockers". She paid over the top for dusters and cleaning materials and so on. She was then duped by her gardener in whom she had a lot of confidence who managed to take some £16,000 from her by various means and then she was persuaded to give an enduring power of attorney in favour of a lady who lived nearby who was married to a property developer. She then sold the property to her husband, he developed it and sold it at £600,000 profit for himself. These are the sort of cases in which there is on-going incapacity. It is all very well saying there are specific cases of capacity and the ability to make particular contracts or decisions, but there are cases where people have on-going incapacity or they would make a series of judgments or decisions that were totally disastrous to them.
Q496 Lord Rix: How would you add up the number of adverse decisions which they make before you actually could intervene because there is obviously a problem of immediacy? Let us suppose a person was averse to the blandishments (?) of the local dentist and they were suffering the most appalling toothache but refused to go and then they refused to go to the doctor for some other reason the next day because they did not like doctors and so it went on and there were a series of health damaging decisions made which really have to be remedied very quickly, how would you deal with that?
Mr Lush: I think one would probably intervene, but I think really what has happened here is that the Law Commission and later the people who drafted the Bill are using that expression - it is an old expression that was used in English law - as a means of saying the outcome of the decision is not particularly important because we are going down the functional capacity route. What I am saying is that that is fine for specific functions, but there is acknowledged to be general incapacity, not necessarily global and I do not think this is fully recognised in the draft Bill.
Q497 Chairman: You mentioned the figure of almost half a billion for the value of awards. We hear of awards being made for £2 million or £5 million, that is converting an annual sum. I believe it is true that most people do not live to collect the full amount as a result of the injuries which are the reason for the award. Is that correct?
Mr Lush: I am not sure it is entirely correct. There is no reliable research on the largest awards. Basically the damages awards are calculated on the basis that on the last day of that patient's life we should be in the process of spending the last penny or the last pound. If there is a lot that is left over then we have not done our job very well because we have not provided them with the resources and accommodation and the care that they deserve. If we run out of money when they are ten years before death then we should be held responsible.
Q498 Baroness Fookes: In paragraphs 13 and 15 of your submission you have a list of check-list items. Are you suggesting that they should replace the check-list in the draft Bill or could some of them be devolved to the Code of Practice? I am not quite clear.
Mr Lush: I think probably what I was saying was that best interests covers an enormous range of different activities. I am slightly nervous about the fact that this draft Bill has limited the check-list that people have to go through to just one or two particular requirements. What I was looking for from all substitute decision-makers was a general standard of good behaviour and conduct and a realisation of what their obligations were to the person on whose behalf they are acting. I would be quite happy to replace the best interests criteria or if they are in a Code of Practice sobeit, but I would not feel too happy about them being relegated to small print, if you are with me. I think a lot of the problems are to do with the fact that people do not really have their duties and obligations spelt out and we need to know what is acceptable and what is not.
Q499 Baroness Fookes: It is difficult, is it not, to have a totally comprehensive list if one is going down that route?
Mr Lush: Quite right.
Q500 Baroness Fookes: How would you deal with that particular problem if you want things spelt out more than they are?
Mr Lush: We have exactly the same dilemma with the best interests case. By no means is that fully defined in those four criteria. It is a question of parliamentary draftsmanship.
Q501 Mr Burstow: Talking of parliamentary drafting and relevant wording, I wanted to come back to this concept of general incapacity that you were describing just now and I wondered if you might be able to help us with any thoughts as to a formulation that could be incorporated into the draft Bill to enable us to capture that idea?
Mr Lush: The Court of Protection's jurisdiction is invoked when a person is incapable by reason of mental disorder of managing and administering their property and affairs. The mental disorder bit actually appears in the Mental Health Act, but nobody in a reported decision has ever come up with what incapacity to manage your property and affairs actually means. There was one judge, Judge Wilberforce, who said back in 1963 that it depended largely on the property and estate that you had to manage and administer. He was referring to an ambassador's widow who lived in the Holden Hills in Devon, in a beautiful Queen Anne mansion that would probably be worth £5 or £6 million nowadays and she had a stroke and she really could not communicate. What I think he was saying there is that where you have somebody with a property of that significance to manage and administer it is probably more problematic to do so than if somebody has just a £30,000 account in the Halifax Building Society which would be easier to manage. Then there are other considerations that were brought in by another judge that really meant taking advice, maybe a problem over financial management and weighing the advice in the balance and arriving at a decision in that way. There was a case called Masterman-Lister v Brutton & Co that was widely reported last year and went to the Court of Appeal. I do not think it has helped in any way because they were relying on the Law Commission's definition of specific function and capacity, which is what appears in this Bill, and trying to apply it to general capacity, which is "general ability to manage one's property and affairs". I do not think the common law has got it right. I do not know if it would be possible to come up with some sort of proper formula as to the capacity to manage one's affairs, but I would not like to shoot one off the top of my head right now.
Q502 Mr Burstow: Could you possibly come back to the Committee with some further thoughts on that?
Mr Lush: Yes. What in fact happened in Masterman-Lister is that I fed the judge some materials on that and there was a particularly useful decision based on an Australian case that was based itself on American rulings before it which was that it was quite a satisfactory definition of it.
Q503 Lord Pearson of Rannoch: Surely it is almost impossible to draw the line on this one between those who do have capacity and those who do not because we can all think of families who have in one way or another wasted colossal fortunes, one generation and decisions which technically look as though they lack mental capacity, but one surely cannot do anything about that. Likewise, your example of the old lady who gave an awful lot of money to her window cleaner, if she is otherwise sane, surely it is a very difficult one to define in law, is it not?
Mr Lush: Yes.
Q504 Lord Pearson of Rannoch: A fool and his money can be easily parted!
Mr Lush: There are two extremes. There is capacity at one end of the spectrum where understanding is everything and there is undue influence at the other end of the spectrum where a particular relationship is involved and there is a great grey area in between. I think essentially what I was trying to say in my submission is a lot of this is to do with burdens of proof and a lot of the burdens of proof really relate to unscrambling transactions that have gone wrong. I think, for example, the burdens of proof are not the same for different transactions. I was spectacularly reversed in a case called Re W a few years ago where I ruled that a person was incapable of creating an enduring power of attorney. I had some evidence from an eminent psychologist which said no way was she capable of creating an enduring power of attorney on 6 June, so I refused to register it and her attorney appealed and she was successful in her appeal. What the judge said was, "I did not need to be satisfied that she understood that she actually had the capacity to make it. All that I needed to be satisfied about was that she did not lack the incapacity to make it". That was a totally different emphasis on this and these are objections to the registration of enduring powers of attorney on the grounds that they are not valid. I think probably up until then we were objecting on a regular basis, but since then I think there are only two or three cases where an objection has been upheld on that basis. A lot of this burden of proof area is desperately complicated, but I think by looking into it and perhaps making sure that when things go wrong they can be unscrambled relatively easily, burdens of proof have a lot to play.
The Committee suspended from 16.59pm to 5.09pm for a division in the House of Lords
Q505 Mrs Browning: How serious is the problem of financial abuse with enduring powers of attorney in your view? You mentioned surveys in your submission, surveys of abuse, and I just wondered how accurate they are and why then you say that you are not sure you agree with those who claim that the existing criminal law is not adequate to deal with financial abuse of people who lack capacity. If I may, Chairman, just add a tail end of my own because it relates to a particular constituency case I have been dealing with, the Court of Protection actually have managed to restore money, but were unable to refer it for criminal prosecution because the person concerned was 98 and clearly could not be called as a witness. I just wonder how difficult it is to bring criminal prosecutions when the key witness lacks capacity.
Mr Lush: I think you have just answered the question you were going to ask, that particular part. I have gone down on record in the Solicitors' Journal on 11 September 1998 as saying that I think that financial abuse occurs in about ten to 15 per cent of cases involving enduring powers of attorney. In fact the figure is one in eight, but I put it at ten to 15 because that sort of sounded slightly vaguer. That was 1998 and I still adhere to that estimate, though I admit it is entirely a hunch and just an instinctive assessment. There is nobody who can possibly say that you have got, say, 39,421 people being abused at this very moment; nobody could possibly collect that data. Another problem is how do you actually define "abuse". If you were talking in terms of purely criminal behaviour, then I think probably the abuse level would be at two or three per cent. If you are talking about unethical conduct of any kind, it is going to be much higher and that is the sort of figure I am talking about, the 12.5 per cent being the one in eight. The largest abuse case that we have come across of an enduring power of attorney involved an elderly lady from Torquay who one lunchtime was invited to have a glass of sherry with the proprietor of the residential care home in which she lived and after two or three sherries gave an enduring power of attorney in her favour and a will and he then proceeded to raid her bank account and transfer it to a Swiss bank account in his own name. It was £1.9 million. We did in fact have a bit of a result and we managed to recover £1.3 million, but £600,000 he had spent. What is actually much more interesting is the abuse that occurs at the lower level, that threshold of where do you draw the line between acceptable and unacceptable behaviour. I had an application for the objection of an enduring power of attorney a few years ago where the objector was claiming that her brother, who was the attorney, was charging 31 pence a mile every time he went to see the mother. Now, the mother lived in Banbury and he lived in Evesham and the round trip was 90 miles, 45 miles each way, so that was £27.30 each time he visited his mother and he visited her three times a week, so that was £82. Now, as an attorney, there was absolutely no need for him to visit her that frequently and claim reimbursement for all business expenses. If he is visiting her as a loving son, you would not expect him to charge that sort of rate of remuneration, so it is those lower levels of abuse which are in fact far more interesting than the patently criminal ones. As far as surveys are concerned, I think you, Mr Burstow, mentioned or somebody mentioned No Secrets and that was in the year 2000 that that was published. There was a survey conducted by the charity, Action on Elderly Abuse, and it was published in the press quite widely in July 2002 and, according to that, one in three elderly people suffer from psychological abuse, one in five are physically abused, the same number are conned out of their savings and more than ten per cent are neglected and 2.4 per cent are abused sexually.
The Committee suspended from 5.14pm to 5.22pm for a division in the House of Commons
Q506 Mrs Browning: Is your proposal to extend the offences of ill-treatment and neglect in this Bill likely to be adequate to cover the scenarios you have described to us? Also what sort of extensive monitoring system would you feel was appropriate to try and address some of these problems?
Mr Lush: I think the recommendations I was coming up with primarily were sort of just tweaking changes of emphasis in the private law/civil law side of things really to put right disasters and to restore people's positions they were in before they made a problem transaction or whatever. On the criminal side, I think it was you who said earlier on that a lot of the problem is that the star witness is the elderly person who has been abused and the police are reluctant to prosecute. Half of the abuses which occur involve family members and again we have this additional complication where it comes down to best interests and whether it is in the best interests of the old person for a family member to be charged, convicted and possibly given a custodial sentence. We did have one two or three years ago where a daughter and son-in-law were both attorneys under an enduring power of attorney and behaved appallingly. The son-in-law was given a custodial sentence, but charges were dropped against the daughter and I think that was the first time that I was aware that a family member had actually been given a custodial sentence for an abuse.
Q507 Baroness Barker: This is a question which you may not be in a position to answer now, and that is fine if you wish to write to us subsequently, but the question I would like to ask is given your experiences, with the practices of financial institutions (a) to what extent are they consistent or not, and (b) to what extent do they help to foster or to prevent situations in which financial abuse can happen? As a supplementary to that, given the huge changes that are taking place in the technology of finance at the moment, does that give additional cause for concern?
Mr Lush: The Irish Law Commission have come up with a paper fairly recently on the law and the elderly, looking at much the same sort of areas as you are looking at and one of the recommendations they are coming up with is that there should be a far greater responsibility on financial institutions to monitor accounts that involve old or vulnerable people, particularly perhaps joint accounts. I go along with that and I think there is an educational process and I think there is going to be a greater duty on them to do that. Something that is not in the public domain is that we had quite an interesting case last year which involved a woman who had two sons, one of whom was an attorney who took all of her savings, £74,000, and the other son then was appointed receiver and sued his brother to get the money back, but the brother was by then bankrupt, so what could he do? Well, this guy had a bright idea and he actually went to the Financial Services Ombudsman and the Financial Services Ombudsman held that the Alliance & Leicester had been under a duty to monitor strange movements from this account and in fact failed to do so and ordered the payment of £50,000 back to this woman's estate. So it is there, but it is not widely known and I do not think that case ever made it into the public domain, but I think there is a lot of scope for them to be educated and have special rules on protected accounts.
Baroness Barker: I am sure that would not be a matter for the face of the Bill now, but possibly for regulation.
Q508 Baroness Knight of Collingtree: This question deals with the point you made in your submission on autonomy and protection and the very first thing you said was that you thought the Bill was weak in terms of protection and this is a very major cause for concern. Now, throughout your submission you suggested that there was quite an easy way to get over this. You may not be able to answer it now, but I would be very grateful if you could give your own thoughts or suggestions as to how to get over this lack of protection. You also said that it can be remedied fairly simply with a little need for extra resources, so perhaps you could at least tell us what is "little" in that sense?
Mr Lush: What I meant was just tinkering with these burdens of proof, making it much harder for abusers by making it easier for burdens to shift so that the burden of proof is then on somebody who has taken advantage of an unreasonable transaction. Once you get down to trying to recover money civilly from people who have abused, it is a very lengthy process and there are enormous obstacles, so you could somehow make that easier and that would be a relatively cheap solution.
Q509 Baroness Knight of Collingtree: When you, in the same submission, said that that could be included in a code of practice, are you thinking along those lines?
Mr Lush: Possibly.
Q510 Baroness Knight of Collingtree: Because I could not quite balance up the two.
Mr Lush: Possibly the burdens of proof then could be dealt with in a code of practice, yes. You see, what happens is that the burden of capacity then shifts. You have someone, an elderly woman, say, 85 years' old, she gives £5,000 under mysterious circumstances and she is presumed to be able to do that. The burden should then shift to the person who has received that gift to say, "Well, no, she really knew and understood what she was doing", and certainly with wills and so on and the monstrous switchings of burdens. Now, this Bill is going to cover wills and it is going to cover gifts and things like that as well as other transactions and the rules are really very complicated and they have not really been given enough attention. I think simply to say there is a presumption of capacity grossly overstates the problem and complexities of it.
Baroness Knight of Collingtree: Perhaps in the interest of covering this very important point about protection we might ask Master Lush if he would consider this point very carefully and if he could give us any further information that would be very valuable.
Q511 Mr Burstow: Can I just pick up on one thought which is in the submission, which is this issue of duty of care that should be on those who are substitute decision-makers and whether or not you feel that the legislation as currently drafted does implicitly place such a duty and whether there would be an advantage in making it explicit on the face of the Bill?
Mr Lush: I am not sure that it does. If you actually read through that legislation, the only people who are required to act reasonably are those under a general authority. That is the only time the word "reasonably" arises. Theoretically you do not have that with deputies and LPAs. I am sure they would act reasonably. I am also worried that actually I can only remove people who are not acting in the best interests and that does not necessarily enable me to remove somebody who is incompetent because you have got this very narrow test of what "best interests" means. So you could have somebody who is appallingly incompetent in terms of providing financial needs and requirements but I am not sure I can get rid of them purely on the best interests test as laid out in the Bill.
Chairman: Thank you, that is very helpful. Would you be kind enough to write to us particularly on advance decisions, which we have not reached, powers of inspection and the extra powers you have referred to. That would be very, very helpful. Thank you.
Memorandum submitted by Professor John Williams
Examination of Witness
Witness: PROFESSOR JOHN WILLIAMS, representing the University of Wales (Aberystwyth), examined.
Q512 Chairman: Professor Williams, thank you very much, you have been extremely patient in waiting. I think you heard what housekeeping there was at the beginning so I do not need to repeat that. If you would introduce yourself and then I will ask the first question.
Professor Williams: My name is John Williams. I am Professor of Law at the University of Wales (Aberystwyth), and I am head of the Department of Law.
Q513 Chairman: Thank you. As there is already a framework of case law that governs the area of mental incapacity, how does the draft Bill improve the situation? Do you think that Codes of Practice can be drawn up in such a way as to provide unambiguous guidance in areas that are not covered on the face of the Bill?
Professor Williams: I think in response to the first point about whether the common law is adequate, the common law is okay and I think in fairness to the judiciary they have done a very good job with very little to work on. I think there have been some very sensitive and very humane decisions by the judges, particularly in the 2000 case of Re F. I think the difficulty is if we leave it to the common law, in a sense we are in a situation where we are making it up as we go along, that increasingly complex issues come before the courts and previous case law does not really allow us a way forward. I think this is particularly worrying since the implementation of the Human Rights Act where we are clearly dealing with issues concerning people's private lives, concerning their right not to be subjected to inhuman and degrading treatment, and yet the procedures that we have in place under the common law are not easily identifiable, they lack the element of predictability that really the European Convention expects us to have. I think a statute could provide greater clarity, would allow people to plan with greater precision for possible future incapacity and would, very importantly, incorporate procedural safeguards, because if you look at cases such as the Bournewood case, if you look at cases such as the Re F case I have just mentioned, I think in a sense you have resolved the immediate crisis, particularly in the Re F case, but the question is where do we go from here? Does she remain in the care home for the rest of her life? Does anyone think of reviewing the case, to think maybe we should remove the declaration? This is the problem with the common law. As I say, the judges have done a pretty good job. Butler-Sloss in the Re F case made it quite clear that they were filling in the gaps and that really this was an issue that Parliament should look at.
Q514 Chairman: On the question of Codes of Practice, these will be extremely important. Do you think they can be drafted in such a way as to provide the unambiguous guidance needed?
Professor Williams: I think in principle, yes, the devil is always in the detail. One could look perhaps at the model provided by the codes produced by the then Lord Chancellor's Department over the last two to three years, I think that actually provides a basis for going forward. What we do not want is a situation where decision-makers are inundated with printed material because we know what happens; they are busy people. If we had a series of codes we would have to target different codes for different groups. Again, the Lord Chancellor's draft codes did this. In particular, we would have to target people who may have incapacity. If we do that I think the codes will have a role to play. I think we will have to be cautious about putting too much into codes because too much soft law, in a sense, brings us back to where we are at the moment, you have got a very loose statutory framework and the bulk of the detail is in codes and really amounts to a soft law rather than a hard law, but as a lawyer I would say that.
Q515 Lord Pearson of Rannoch: In your opinion, do you think that the draft Bill is compatible with the 1998 Human Rights Act?
Professor Williams: I think on the whole the answer is yes. It clearly envisages intruding into, for example, the private lives of people who may have incapacity, but I think that it also complies with provisions of Article 8(2) of the Convention. It will, and I think this goes back to the common law, provide a clear statement of the law as to what can and cannot be done, so we will have the lawfulness. I think it is within the remit of Article 8(2) in terms of health, morality, prevention of criminal offences and so on. Very importantly, the third requirement, I think it is a proportional response. I say all that in a vacuum because to some extent it will depend how it works in practice. It will also depend on what is in the codes that are going to be produced under the Act. On the whole, I think I am satisfied that it will be within the Human Rights Act. I am reassured in that conclusion by looking at what we have at present, which certainly in my view does not comply with the Human Rights Act, tolerates financial abuse, tolerates physical abuse, and basically there is nothing that can be done. Again, the European Court have made it clear in the case of X v UK, for example, that the state does have a positive duty to protect particularly vulnerable people. In a sense, I think where we are at the moment is incompatible and I would certainly argue that if the Bill becomes law that will be consistent with the Human Rights Act.
Q516 Mr Burstow: One of the themes running through today's evidence session has been balancing autonomy against protection, and in your submission you put forward the need for us to give some consideration as to how the test of capacity is actually put into practice, particularly in circumstances where abuse is believed to have occurred. Could you tell us perhaps a little more about how you think clause 1 might be extended to include extreme cases of undue influence over capable but vulnerable adults. What would be your formulation to enable the law to take into account those circumstances?
Professor Williams: At the outset I think I fully accept that it is a very difficult piece of drafting if you are going to incorporate people with capacity but people who are vulnerable. I think we might have a model in the draft Bill proposed by the Scottish Executive, their vulnerable adult protection laws, in terms of defining vulnerability and then saying that we will intervene but we will not intervene if the person refuses consent, except where, they refer to the person being "mentally disordered" and by that I think they probably mean incapacitated. The second reason for compulsory intervention without consent would be the person has been pressurised by some other person, so it incorporates the notion of undue influence. Indeed, there is a precedent in the common law, the case of Re T, which involved the withdrawal of a consent to medical treatment, where the person withdrew her consent. As a result of a private meeting with her mother it was felt by the court in that case that she had exercised undue influence and the operation went ahead. The withdrawal of consent was deemed to be invalid. I think we have to look at this very closely because when we talk about incapacity, what we are talking about is decision-making, the ability to consent, the ability to refuse. In law we have three elements to that. We have capacity, yes, that is important, we have the need for information, which is the second ingredient, and the third ingredient of consent is that the decision was freely made. If you put a gun to somebody's head and say "sign this", you do not have a consent. Nowhere under the Bill is that kind of issue envisaged. What I identify are three categories. The first category, which in one sense is perhaps the easiest to deal with - do not read too much into that but as a relative thing - is people with incapacity and we have got a common law at the moment, and indeed the draft Bill seeks to put it on a statutory footing. At the other end of the spectrum we have people who have capacity, who function quite well in society, there are elements of vulnerability maybe through age disability but on the whole the abuse is minimal, and I hate to have a kind of tariff for abuse, but the abuse is minimal, they are coping and they are probably telling you "Do not do anything, because if you do intervene you destroy the one bit of family life that I have got". The category in the middle is the most difficult one because there you are dealing with people who have high levels of vulnerability, who maybe are totally dependent on an individual for care, and of course are open to undue pressure being placed on them to decide. At the moment they would fall outside the Bill. My argument would be that they should be within the Bill, subject to numerous safeguards. As I say, it is a very difficult piece of legislation to draft because otherwise you say this is not a valid consent they have given because of undue influence but they have no remedy, whereas if they were just over the line into incapacity the remedy or the protection would be there.
Mr Burstow: Our task is to make recommendations back to the Department about how the Bill might be changed to reflect those concerns. It would help us discharge that task if after today you could reflect further and offer us some more of your opinions on how you could give effect to what you have just said. You have set out the test of understanding, information and freely made being three elements and it would be useful if that could be translated into something that parliamentary draftsmen would feel more comfortable with.
Q517 Mrs Humble: Following on from Paul's last point, what is the situation now and is this a genuine gap in the law? You said in your last sentence that for such an individual, if they have given their consent freely, or are deemed to have given their consent freely, there would be no remedy. Is that really the case? Is there no remedy under the existing law or is it more that it would be extremely difficult to prove it? I know of a case where one elderly person genuinely changed their mind, they did give consent freely to do whatever, or for the individual to take money off them, and all of a sudden, the next week, they said "Oh, I wish I had never done that" and then challenged it, but they had given consent freely. More often they do not want to get involved in the legal system so we are back to that catch where in order to proceed through the courts you have to have witnesses, you have to have somebody who is willing to come forward to give evidence to prove that they were misled, forced or victimised in some way. Is there actually a genuine gap that expanding the definition in this Bill would fill or would we still be in the position of not being able to prove cases?
Professor Williams: I think that question raises a number of elements and it is perhaps best divided into criminal and civil law. I think what you say is absolutely right, and what Master Lush was saying was absolutely right in respect of the criminal law. In effect, I think what we have done is to decriminalise vulnerable adult abuse because rarely do we prosecute the cases of vulnerable adult abuse. In part that is evidential and the case Master Luch cited is a good example: a person who does not have capacity or it would not be in their best interests to give evidence. I cannot believe that is the case in every situation of vulnerable adult abuse, and yet talking to social workers very rarely are they involved in criminal proceedings. If they worked for child protection they would be. If they are in adult services they are not. We do not use the criminal law. The Youth Justice and Criminal Evidence Act may help because it does provide some assistance for vulnerable witnesses to give evidence: pre-recorded video interviews; interactive video link and so on. That might help and it will be interesting to see what the effect of that particular piece of legislation will be. I think we have to accept that in criminal law you will not be able to prosecute in every case. Indeed, in some cases, as indeed with child abuse, prosecution will not be in the best interests of the person. I think the criminal law has a role to play and we need to raise its profile, which is why I welcome the central involvement of the police in the no secrets vulnerable adult protection procedures. It is not a panacea by any means, please do not misunderstand me, but I cannot believe that criminal prosecutions in any way reflect the level of abuse that goes on of vulnerable adults. If you look to the civil law, the frustration that I come across quite often when talking to social workers is - looking at my middle category of very vulnerable people - "We know they are being abused, it might be physical, financial, emotional, sexual, or all four. We try to persuade them to do something, we try to get in place alternative methods of support, but the person still says no" and social workers will say that on Friday afternoons they have to walk away from that and wonder whether the person will be alive the following day. In law there is nothing that really can be done. We do not have the equivalent of Child Protection Orders, and I am not advocating that we go down the Children Act route, but the social worker is totally without any legal power in that respect. They do not even have a statutory duty to investigate such cases, which is a major gap because the abuser can turn around and say, "What are you doing here? Clear off. I own the house, you are not coming in", and we go back to the kind of Jasmine Beckford type case that we saw in child protection. There is a major gap and it is crying out to be filled by a new public law that recognises that in extreme cases compulsory intervention is going to be necessary, otherwise I think no secrets is not going to work as it should because it is a constant frustration of social workers and health care professionals that "We cannot do anything and we worry what is going to happen if the person remains in their home". I just come back to the positive obligation under the European Convention to protect people from inhuman and degrading treatment, and the question is do we have laws in place that do it? My argument would be that we do not and that is a major gap.
Q518 Mr Burstow: What I am still not clear about from what you have said today, and in your own paper, is how do we get hold of defining "extreme" because the danger is we wind up with a definition that captures an awful lot more than that and, therefore, really does erode the autonomy of the individual. Can you help us a bit further with how we actually capture the definition of "extreme" cases?
Professor Williams: I absolutely agree that is the danger. What I do not want to do is capture the second category I mentioned, people who function well even though they are being subjected to minor abuse. I think, in a sense, it comes down to identifying levels of vulnerability and levels of dependency. Undue influence is very difficult to prove, I think that has always been the case in terms of wills and other documents, but it is not beyond proof. Again, going back to some of the things that Master Lush was saying about burdens of proof, if there is a position of power and influence, maybe if there is a prima facie case that this is an abusive relationship and undue influence is being exerted, the burden of proof could be reversed. Yes, again there are human rights issues there and we have to look, but it is not necessarily outside of the Human Rights Act to reverse burdens of proof in such cases in performance of our duty of protecting vulnerable people. I am quite happy to think on paper as to how we might go about it. If we look to the American experience it is do-able. There are various definitions. Most of the states have elder abuse protection laws. There are some useful models for defining vulnerability. It is really encapsulating the notion of vulnerability and also the relationship, it is looking at those two features: how vulnerable is this person; how close is this relationship?
Q519 Mrs Browning: I just wanted to ask, following on from that, from what you have just said presumably from the American experience it is not a matter of categorising certain types of disability in any way and the relationship with the key person presumably comes into play there. Unless this is actually put in statute I cannot see how we are ever going to get the resources behind it because as it is a social services' responsibility, we all know that social services departments around the country, because of difficulties of resources, tend to prioritise their statutory responsibilities quite naturally, hence the amount of money that is spent on children's services because of that statutory obligation. Unless that is put into statute, I cannot see that there is going to be any progress in this area at all.
Professor Williams: I think that is absolutely right and I think social services authorities are quite open about that, that they have to cover, as you say, their statutory obligations, which is why I think that a duty to investigate vulnerable adult abuse would be a very important development in terms of implementing no secrets. On the resources issue, vulnerable adult protection will not be cheap, just as child protection is not cheap, it is going to cost. I do not think anyone has done the costing of this.
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 the 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 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 to argue that if you are acting on somebody's behalf that something which is viewed from one perspective as a form of abuse, viewed from another is in that person's best interests, and there is a grey area here. 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 then the function of the Code of Practice would be to lay out the competing rights laid down 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", and I think it is a human rights issue. "Best interests" gives the impression of being very paternalistic, of doing 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 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" 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, whatever, 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 that does 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 from 6.10pm to 6.18pm for a division in the House of Lords.
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 from 6.22pm to 6.29pm for a division in the House of Lords.
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 be 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 to 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, 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.
Q540 Huw Irranca-Davies: In respect of, first of all, protecting older adults from abuse but also detecting cases of abuse where they are happening, what are your thoughts in respect of a formal regular system of inspection of people who are vested either with lasting powers of attorney or, alternatively, with a general authority? Would a formal regular method of inspection be a valid one, an appropriate one? Is it overkill, in effect? Is it practical?
Professor Williams: I think the general authority would be very much as I have just described, a light touch that would need to be logged in. For the lasting authority, I think it is a pretty significant decision to say that "in the event of my being incapacitated I give you responsibility for my financial affairs". I think people may be reluctant to do that unless they know there are adequate safeguards in the system. I think that does presuppose that there is some kind of inspection process in place. Again, we come back to resources, we come back to bureaucratising the whole process, although I think someone who accepts lasting power of attorney, or enduring power under the existing law, accepts a greater responsibility and a recognition that it is going to be more time-consuming, you are going to need to go through the formalities. Under the lasting power of attorney I would like to see a greater level of accountability than maybe we see under the enduring powers of attorney.
Q541 Huw Irranca-Davies: And you would want that laid out on the face of the Bill?
Professor Williams: I would want the principle laid out on the face of the Bill, the detail elsewhere. I do not know whether it is a good example to say rather like one audits bank payments. I am not sure that is a good analogy. If I sign a document saying "You look after my financial affairs in the event of X", I think people are entitled to safeguards. An increasingly worrying group of people is people who appear to sign an enduring power of attorney and yet you know full well that at the time of signing they lacked capacity, their hand was guided over the bottom of the paper basically.
Q542 Huw Irranca-Davies: On that basis, as the Bill is currently formed we have under section 12(2): "P may, at any time when he has capacity to do so, revoke the power." On the basis of what we are talking about, which is a formal regular system of inspecting individuals who are given that lasting power of attorney, should it not also work the other way recognising that the capacity of an individual who gives that power to a donor is function specific, is time specific, will fluctuate over various periods and various instances? Should there be something within the Bill that recognises we should go back to that individual on a periodic basis?
Professor Williams: I think, again, that is extremely useful because incapacity is not necessarily once and for all. Particularly important is the point you make that incapacity is not a general thing but is function specific. Again, coming back to this human rights point, one does need to periodically review whether continuation of this power of attorney is appropriate or appropriate in its current form because maybe things have improved and maybe it has just become so comfortable that no-one is going to challenge it. I think that could quite usefully be part of the process, especially where the prognosis is that the person may actually improve, perhaps less so where you are convinced that the person's capacity will not improve, it will get worse, but where there is a possibility that with education, training or whatever, the person may improve then I think that would be helpful.
Chairman: Thank you very much. Can we conclude now with advance decisions to refuse treatment.
Q543 Lord Rix: In your written memorandum it was suggested that advance decisions should be time limited, needing to be updated, say every five years, while the person still had capacity. You then went on to say, alternatively, an incentive to update could give doctors more scope to deem advance decisions less applicable after a fixed period. In your view, how could a requirement be imposed on individuals to review advance decisions, whilst they are still capable, to ensure that the request remains current? How would you give power to the doctors, which might be an unpopular move with many, to make alternative arrangements to these advance decisions to refuse treatment?
Professor Williams: Firstly, I very much welcome the inclusion of advance decisions in the Bill, I think that is a very positive step. I am concerned that, perhaps as envisaged in the Bill, the advance decision does not have a shelf life. I might make a decision today that in the event of X, do not do Y, because Y is horrendous and the possibility of full recovery is zero, so I say "If I am incapable, do not do Y, let me die". Five years down the line, Y may be a relatively simple obtrusive form of treatment and I think one has to ethically say should that be allowed to stand because the person made it in one context, that context has now changed. The context was that it was intrusive, likely to be unsuccessful, and that has now changed. I think that people should be encouraged, and perhaps I would go even further and say required, to revisit their advance decision periodically. That is one way, to say that advance decisions have a shelf life of five years after which you come back and renew. The alternative is a suggestion I sort of floated in my submission that perhaps the doctor's interpretation after five years, or a period of time, could be slightly more liberal and you would give the doctor greater scope to say that circumstances have changed and, therefore, the advance directive should not stand.
Q544 Lord Rix: You would not think that this negates the whole purpose of an advance decision?
Professor Williams: It might run the risk, but at the same time I think we need almost a kind of public education campaign as to what advance decision making is all about. It is looking in the year 2003 and saying "In the event of this, do not do that", and it is based on all that is happening in 2003, but in 2006 it may be desperately different. I somehow think that people should be expected to revisit advance decisions because otherwise you perhaps impose on the medical profession very difficult decisions.
Q545 Mr Burstow: In 2006 only three years has gone by and you were talking about five years.
Professor Williams: I am pulling figures out of the air. I mentioned five but it could change overnight, of course. To some extent we have just got to pick a figure and go with it that is reasonable in the sense of the rate of development of medicine. Five may be inappropriate, I do not know. I think the principle is that the expectation should be that we come back, revisit and think "Do we want this to continue", because otherwise it may involve the medical profession in quite complex ethical questions: "They said do not do Y, because then Y was terrible, but actually it is easy-peasy, we can do it".
Q546 Mr Burstow: If Codes of Practice laid down the form that an advance decision to refuse treatment would take, which will be clearly liberal in its interpretation as far as the medical profession is concerned, and also the view of the fact that advance decisions are made absolutely voluntarily, nobody is going to force you to do this, would you not accept then that if they are carefully written, they are not demanding euthanasia or anything of that sort, and give the doctors sufficient scope to review the situation clinically over time, would you not consider that sufficient? The fact that they are made voluntarily, would you not consider that they should be able to continue to hold good and doctors should interpret them in the best way possible?
Professor Williams: I think that presupposes that the advance decision will be clear and will be ----
Q547 Mr Burstow: I am saying it should be on the Codes of Practice so that people know exactly how it should be written.
Professor Williams: It should be on the Codes of Practice, although in a sense I think one has to legislate for those that are not clear and, as I say, would provide the doctor with perhaps quite a serious ethical dilemma at the end of a particular period of time. I think in principle it is desirable that we go back and revisit these decisions that we make in advance because our views may have changed. It is rather like changing your will, you might have fallen out with the person you have left all your money to but you never get round to going to the solicitors to change your will because you have done it, that is it, it is in the bag and you do not want to think about death any more. I think that as responsible citizens we should be encouraged to go back and revisit, whether it be three, five, ten years, I do not know, that is a figure plucked from the air. I think it is an act of responsible citizenship, if you like.
Q548 Stephen Hesford: Just on this point, would not the additional difficulty be that if you had a period of time when there was a statutory duty to revisit and you had a period of five years, on your scheme if there was a decision to be made and it was four years and 364 days a decision would be made under the advance directive but given full force because it is within the five years, but under the scheme Lord Rix was talking about, and doctors have been talking to us about, if the Codes of Practice were sufficiently well thought out there would be flexibility to come in and apply what should be applied at the time, whereas your scheme would actually prevent that flexibility taking place?
Professor Williams: I take the point that any time limit is arbitrary, the age of consent at 16 is entirely arbitrary and a matter of seconds can change things dramatically, but I still come back to my basic point that we have a responsibility to revisit such advance decisions on a fairly regular basis because we are asking professionals to do or not to do things to us in the event of a context that may not exist at the time the decision has to be made.
Q549 Stephen Hesford: You are asking somebody to revisit their advance directive by a certain date which means that they have got to go all through the process of having it witnessed again, rewritten again, or could they merely add a codicil, as it were?
Professor Williams: You could have a short, fast-track revalidation system if you wanted, and I think that might make sense. As I say, it is important that we do go back and look again and say, "Is this really what we want" because when the time comes it is too late.
Q550 Chairman: Just on a point of principle, as you know the draft Bill puts into statute the current and common law position but supposing those provisions were not in the Bill, what would the effect be, to stay with the common law as it is now?
Professor Williams: We would stay with the common law.
Q551 Chairman: Would that be worse than the position now?
Professor Williams: This is such a sensitive area that I think, insofar as legislation can provide clarity, we need the clarity of legislation rather than common law. That takes us back to the first discussion we had, that common law is okay but increasingly this is becoming an important issue for people.
Q552 Chairman: On the other point about the changing of and the knowledge of medical treatment, if an advance directive said something like "Based on the treatments known to me at this time I wish to refuse treatment", it would then mean that if treatments changed the directive would not be based on those treatments.
Professor Williams: Yes, and you would tie it into day one, as it were, the day you signed it. That is possible, although who knows what the person knew on that particular day. That may be a practical problem, an evidential problem.
Chairman: If I can thank you on behalf of the Committee for being so patient and waiting for a long time but we were interrupted by divisions which are outside our control. You have been extremely helpful. If there are any further points you would like to make we would be happy to receive them in writing. Thank you very much.