Examination of Witnesses (Questions 520-539)|
14 OCTOBER 2003
Q520 Mrs Browning: I was going to
ask you that.
Professor Williams: I am not aware
of anyone who has scientifically looked at the cost. One problem
is if we do not do anything, what is the cost? Certainly there
is a social cost but also I think there is a financial cost because
invariably if, say, it is financial abuse, if all their money
disappears then the person's ability to look after themselves
goes as well and they then become dependent on social services
intervention; social services may be paying for residential care
and perhaps they will be in receipt of benefits. Similarly, if
it is physical abuse it may require hospital resources, so there
is a kind of additional cost, as it were, in not having the protection
there. We cannot deny that it will cost and that local authority
social services departments in the absence of a statutory duty
will prioritise and this will not be a priority, despite the immense
amount of good work that has been done in local authorities.
Q521 Baroness McIntosh of Hudnall:
Professor Williams, can I just take you back a step to the analysis
that you were making of what you would need in order to be able
to put together something on the face of the Bill that would call
to account those who are engaged in abuse. Would you agree that
obviously the vulnerability of the adult in question is key, as
you said, and the nature of the relationship?
Professor Williams: Yes.
Baroness McIntosh of Hudnall: But is
it not also the case that the definition of "best interests"
becomes very critical at that point? We are going to come on to
that issue but I wonder when you are thinking about this if you
could tie that in because clearly it is possible that when action
is taken on someone's behalf, that action might be viewed from
one perspective as a form of abuse, but viewed from another is
in that person's best interests. I wonder whether your questions
about best interests, which you raised in your submission, might
be linked back into those issues.
Chairman: If we could have the next question
first because it relates to that.
Q522 Baroness Wilkins: There are
concerns obviously that "best interests" can be interpreted
in too paternalistic a way. You suggest replacing the term "best
interests" with "in the interests of promoting the human
rights of the person". How do you feel that would enhance
Professor Williams: I think "best
interests", rather like "welfare of the child",
is a term we use and it is quite a useful term in one sense, but
it is also a term that on occasions can lead to the suspension
of thought and certainly the lack of thought process behind the
decisions: "It is in the person's best interests to treat
them, and there we are". It is an immensely complex thing
to actually try and work out what is in somebody's best interests
because there is a best interest in being protected, there is
a best interest in having your autonomy protected regardless of
what is happening to you. I suppose, to put it quite bluntly,
my worry with incorporating or using the best interests test in
new legislation is that it will bring with it, if you like, all
the baggage that the current common law definition has. What I
am keen to see is that under the law local authorities, health
authorities and individual professionals do what I would choose
to call a human rights calculation in deciding whether intervention
is or is not appropriate. Again, yes, autonomy and protection
are very, very difficult things to define but we have to take
them on board. My fear with the best interests test is that we
look very much towards protection, which to some extent goes against
what I just argued. It is the full calculation, looking at both
sides of the equation and coming to a decision. There are competing
interests, of course, in the human rights calculation: the right
to a private life versus the right not to be subjected to inhuman
and degrading treatment. We cannot generalise about that. We cannot
say that protection is always right, that Article 3 is always
right and Article 8 is always wrong. My concern is that "best
interests" brings with it a history, rather like "welfare
of the child", we simply stick the label "yes, best
interests, therefore it must be right", and there is not
necessarily a real thought process behind that decision. Targeting
it directly on human rights will cause us to think more broadly.
Q523 Baroness Wilkins: How do you
try to ensure that that human rights calculation is made? Do you
write it into the Codes of Practice?
Professor Williams: One, I would
like to see it on the face of the Bill, a term "having regard
to", and I think that the function of the Code of Practice
would be to lay out the competing rights laid own in the Convention
and say that basically "these are the things that you must
have regard to in reaching your decision, it is a human rights
issue". "Best interests" gives the impression of
being very paternalistic, of doing what is best for you: "Don't
worry, dear, we will always act in your best interests",
and it is much more subtle than that.
Q524 Chairman: What would be the
effect if the Bill said that the best interests of the person
shall be paramount? We had a long discussion on the Children Act
on the welfare of the child being paramount. What would be the
legal effect of that?
Professor Williams: I am not sure
that we have sorted that out under the Children Act yet. If we
said it would be paramount then certainly it is the first consideration,
the consideration carrying the most weight, but not the exclusive
considerationIt is complicated with children in the sense
that there are parents involved and parents have rights under
Article 8, right to a family life. If you stuck to the term "best
interests of the person" in the proposed legislation I do
not think you would encounter that. Who else is there that has
rights in this respect? It is not like the child/parent relationship,
who else is there? Where are the competing holders of rights?
It might emphasise it but in practice probably it would not add
much to it.
Q525 Stephen Hesford: I am interested
by what you say and I have read and reread your paragraph four
which deals with this particular point. If you do not mind me
saying, what you seem to do is argue yourself out of what you
have just been telling us. I want to press you on that because
your first sentence is "Placing the best interests test on
a statutory basis is welcome and will ensure consistency"
and you then go on to say "I am not entirely happy with the
best interests test" and then you say "A less concise
but more acceptable term is interests promoting the human rights
of the person". It seems to me that there is an internal
Professor Williams: Okay. Point
one, I welcome the best interests test being in there if the alternative
is what we have got at the moment. I think statutory recognition,
plus the facts that are going to be taken into account in determining
the best interests, has got to be better than the system we have
at the moment which is simply relying on this phrase, "best
interests", plus whatever professional guidance, Codes of
Practice, maybe available. Given that, I think to make the Bill
even better I would much prefer to see "best interests"
replaced by this general reference to human rights.
Q526 Stephen Hesford: But if for
those who are having to administer the test, and you talk about
dissemination of the idea of best interests as an educative process,
there is an element of doubt as to whether they will understand
their own duties, which is one of the things that is tied up in
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
Professor Williams: It certainly
implies consistency, and I do concede it looks better than what
we have got at present because it is statutorily recognised and
it is embellished in the Act. I do not think that a reference
to "human rights" would be any more difficult to understand,
and in some respects would be easier to understand, because it
would set out quite clearly what is the internal debate within
the European Convention on Human Rights, namely the struggle between
autonomy and protection. In any system we have, if people do not
take that on board then I think we are failing vulnerable adults,
it has to be part of the equation. My concern is that best interests,
even though it is better than what we have or do not have at present,
does not really invite people to do that calculation. It suggests
it is about a kind of paternalistic, "Don't you worry, we
will do it. We will look after you. Doctor knows best" and
all the other things that come along. That is my concern.
Q528 Baroness McIntosh of Hudnall:
Just going back to the earlier point, do you believe that best
interests, as far as we are able to describe them, actively work
against protecting people from abuse? What you seem to be saying
is that the best interests test is so loaded in favour of the
person making the substitute decision that it could actually act
as a mask for decisions which were in fact abusive. Is that what
you are saying, because if it is that is rather serious?
Professor Williams: I think I
am saying two things. One is we need a system whereby people are
protected and at the moment, particularly people in my middle
category as it were, people who are extremely vulnerable and require
intervention and protection, the emphasis is there, and that in
my view would be in their best interests in some cases, but not
all. The term "best interests" is worrying because in
a sense it is one dimensional, it is about doing what the substitute
decision-maker thinks is best for the person, and there are a
whole load of assumptions behind that: "This is what I want
and what any reasonable 85 year-old would want" and the family
say this is what he/she would want and, therefore, it must be
in their best interests. What I want to do is put in the second
dimension, which is, yes, but doing something, doing nothing,
not treating the person, not resuscitating them, removing them
from their home maybe, interfering with their autonomy, may also
be in their best interests. The given formulation of "best
interests" has a history that in my mind is based in paternalism.
I think we need to focus people's attention on doing the calculation,
as I say my human rights calculation, and looking at the various
competing interests rather than saying "Going into the residential
care home, going into the nursing home would be nice because it
is comfortable, there is a nice, big television, you will be warm"
and there we are, even though the person has made it clear that
they were born here and want to die here and do not want to go.
It is getting people to do that calculation, which in part may
be a safeguard against some of the risks that were identified
earlier on about overzealous use of the kind of power that I am
suggesting. It is down to calculation rather than the assumption
that paternalism is always best.
Q529 Huw Irranca-Davies: Could I
push you a little bit further on that aspect of the calculation.
You referred to it a little bit earlier on as the necessary codification
that would underline something that was on the face of the Bill.
If the essence of it, if the nub of solving this particular issue,
is to do with the codification that lies under what is on the
face of the Bill, could that codification not lie underneath "best
interests" equally to the human rights?
Professor Williams: I think if
one links "best interests" with really what I am trying
to suggest in the paragraph, you keep the words but you link it
somehow, perhaps in the list of factors to be taken into account,
you include it there, that may be an easier way of doing it. As
I say, what I am desperately keen to ensure is that we do not
say "it was best interests before, we bring all that in with
us", I want people to do the calculation. Yes, you could
include it in the section and say "have regard to the person's
human rights", indeed providing on the face of it, as it
were, people will go with that.
The Committee suspended for a division.
Chairman: I fear there may be another
division in the Lords very soon. Could we move on to general authority.
Q530 Mrs Humble: Could I ask a very
brief supplementary on this issue of a person's best interests.
You have been talking about human rights and one of the other
suggestions that has been put to us is that the Bill should define
"best interests" as "best personal interests"
of the individual. Will that go some way to answering your concerns
or would that further muddy the water? The counterweight to personal
best interests would be that sometimes an individual's best interests
might be better served in circumstances involving them and their
family, or wider issues which could perhaps then not have the
priority. Could we just have a brief comment on that?
Professor Williams: To some extent
that would muddy the water. It addresses an issue that in applying
the best interests test, whose interests are we actually looking
after? Of course they are interlinked because the interests of
the informal carer are going to be important in looking after
the interests of the cared for person. An immediate reaction to
"best personal interests" would be, as you say, to muddy
the water; to some extent the worst of all possible worlds.
Q531 Baroness Barker: I have a question
sparked by you mentioning the second strand of best interests
as you see it, one of the consequences of not making an intervention.
Given that and some of the other points you have made that human
rights are part of the underlying concerns in the Scottish Bill,
do you think that taking "best interests" out and using
the format of the Scottish Bill with the principle of best approach
would go some way to meet your concerns?
Professor Williams: I think it
would go some way to doing it, yes, I do. I think it is an interesting
piece of legislation.
Q532 Baroness Fookes: You give a
general welcome to the concept of the general authority but you
also indicate that there is the risk of abuse. How significant
do you think that abuse is likely to be?
Professor Williams: That is very
difficult. Master Lush was referring to the difficulties of identifying
possible abuse with enduring power of attorney and I think it
would be even more difficult with the general authority. I suppose
the nearest we have as an analogy is the idea of appointeeship
for receipt of benefits. Again, I regret that much of the evidence
is anecdotal but talking to quite a number of social workers they
do tell me that they know appointeeships are actually being abused,
that the money is not being used for the benefit of the person
entitled to receive the benefit. I think that is worrying because
there is a mechanism under appointeeship for control but, again,
the evidence, the anecdotal evidence I regret, no more, appears
to be it is not used. To some extent it is rather like putting
Herod in charge of a nursery, that sometimes by giving that person
general authority or an appointeeship you simply "regularise"
the abuse: "I am the appointee, therefore I can buy my new
car because I take mother out once a year to visit father's grave.
That justifies me because I am the appointee or I am the person
with general authority".
The Committee suspended for a division.
Q533 Baroness Fookes: You suggest
that there should be additional safeguards to protect against
abuse in using the general authority. What do you feel they should
be on the face of the Bill or in the codes and is there a possibility
that this might make it all very cumbersome?
Professor Williams: I think there
should be something on the face of the Bill to give it the necessary
statutory basis. It is possible that the detail could come in
codes. I fully accept the point that this could become bureaucratic,
both for those who are called upon to administer but also for
the people who are exercising the general authority because the
last thing they want is a heavily bureaucratic regime imposed
upon them, and there is a cost factor as well. I think it should
be minimal but people should be aware that there is the possibility
that their spending of the money, the decisions that they make,
at some stage they may have to be accountable for. That could
involve the keeping of very simple pro forma accountsvery
simplewhat the money has been spent on, or maybe a diary
as to why certain decisions were made. It is probably far too
expensive to have those checked every year, but the possibility
may be of random checks?
Q534 Baroness Fookes: By the local
authority, would you envisage?
Professor Williams: The local
authority would seem to me to be the key people to do this because
invariably they will have access to the person, they will be working
with the person who is providing services. Social workers are
very well informed about what is going on. They know, I think,
when there are problems. They know when possibly financial abuse
is going on. In those circumstances perhaps the social worker
could initiate some kind of audit. I emphasise very simple records
because we do not want to scare off the people who undertake this
and the majority of informal carers are wonderful people.
Q535 Baroness Fookes: Would you envisage
that, say, a neighbour who was concerned, or somebody else who
was concerned, would channel that concern to the local authority?
Professor Williams: Yes, I think
that is a possibility that could be done. One might go some way
towards protecting anonymity. I think the useful thing about channelling
it through the local authority is that the local authority then
has the responsibility for initiating action, you do not leave
it to the person who is being abused to do so. Again, looking
at the American experience of mandatory reporting, relieving the
victim of responsibility for "where do we go from here"
is a very significant factor in prosecuting vulnerable adult abuse
and protecting vulnerable people. Yes, there could be a whistle
blowing mechanism for neighbours, concerned friends, concerned
relatives, and concerned carers.
Q536 Mrs Browning: I am concerned
about social services taking responsibility for this because,
by definition, if social services are providing the services then
the person concerned has limited assets. The people who have got
the assets are the people who are self-funding and they would
not come under social services' remit at all. I would be quite
concerned about that route because apart from maybe a property
which someone might try to sequestrate, the people who are self-funding
would be the ones who I would have thought would be most vulnerable
to having their assets removed under circumstances that might
not be proper.
Professor Williams: I have a two-fold
response. One, if you look at people who may be within the social
services' net, taking £5 a week off them is probably going
to be as significant as taking £100 or £200 off someone
who is outside of the social services system, so it is a relative
calculation. I entirely take the point that it is difficult to
identify those who are not in touch with social services and I
do not know how you would do it, I really do not.
Q537 Mrs Browning: But surely if
someone has applied for power of attorney there is a record of
who has applied and where they are. They may not even live close
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
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 systemwhat 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
Chairman: If we can move on to lasting
powers of attorney.