Examination of Witnesses (Questions 580-599)|
15 OCTOBER 2003
Q580 Chairman: The presumption of
capacity is clearly important, but in the example of someone who
makes unwise decisions should there be a shift in the burden of
proof? The Bill uses the common law principle of proof. Do you
think in those cases there should be a shift in the burden of
proof in determining incapacity?
Mr Clements: This is completely
off the top of my head, but I would have thought that would be
Q581 Chairman: Why?
Mr Clements: I think it would
violate the European Convention on Human Rights, Article 1 of
the First Protocol. You would then get into the situation of saying
what you mean by an irrational decision. What was irrational 150
years ago is now considered sane.
Q582 Chairman: But even now under
common law judges have to make that sort of judgment.
Mr Clements: As far as I know
every common law jurisdiction has a presumption of capacity for
adults and I would have thought that is true of the continental
jurisdictions as well.
Q583 Baroness Wilkins: This law would
be very dependent on the codes of practice that we have not seen
yet. Do you think the draft Bill is too dependent on them?
Mr Clements: Yes, we do. That
has two aspects to it. Our view is that inevitably a lot of this
would have to be in the Code of Practice. The Code of Practice
that we have in mind is a bit like the Scottish system, although
that is quite dense, but the codes of practice that come within
the Disability Discrimination Act would be very helpful indeed
in giving real life situations. We do believe that there are a
number of areas where the detail could be in the Bill rather than
having to wait to see what is in the code. The thing we most regret
is the fact that in order to understand this Bill we would have
to see the draft code. In factand I do not even want to
get drawn into this unless you want towe would have to
see the Draft Mental Health Bill as well because these three things
have got to mesh. This is a Bill that is very much dependent upon
Chairman: That might be a Bill too far!
Q584 Baroness Wilkins: Could you
say where in the Bill you would like the code to be put instead?
Mr Clements: We have problems
with the general authority. The general authority effectively
allows anybody that provides care, which is not defined, to do
anything that they think effectively is reasonable with a few
exemptions. There is a degree of a lack of proportionality there
in that we have considered that perhaps there should be some limit
on the amount of property that somebody could divest, whether
they could sell a house or not and certain things like that. Certain
limitations on that general authority we think should be placed
in the Bill rather than in the code because the general authority
as it stands is almost a blank cheque.
Stephen Hesford: You have mentioned the
Mental Health Act/Bill and it is an area that we were not otherwise
intending to cover, but it is an area we covered previously. It
is an area that we may have to return to. Could I direct you to
clause 27. Bearing in mind your comment and the Chairman is right
that we cannot go down the road of examining the Mental Health
Chairman: There is not one at the moment.
Q585 Stephen Hesford: There have
been various draft Bills, there certainly is an Act in existence
at the moment which may or may not inform the process. Do you
have any comments about clause 27?
Mr Clements: Only that this is
a classic example of where these two pieces of law have got to
mesh. In this situation you might have certain groups excluded
from both forms of protection. I have seen the comment on that
and that is a drafting matter that would have to be dealt with
in the sense of which piece of legislation it would fall within.
We are particularly concerned and I am sure that those drafting
the Bill are also very aware of problems with clause 7 which is
restrictions on liberty because it does authorise people to be
detained in exceptional circumstances. Is that something that
is to be dealt with by the Mental Health Act or is it something
that is going to be dealt with by the Incapacity Act? We have
had a case in the European Court of Human Rights which was known
in the House of Lords as the Bournewood case and you have
what is called the "Bournewood gap", under what
piece of legislation will somebody who is mentally incapable be
incapable of being detained? This legislation seems to suggest
that it would be possible to detain somebody with a mental incapacity
under clause 7, but it describes a procedure. Article 5 of the
Convention says there should be a procedure prescribed by law.
It also does not deal with the public-private point of view. If
it is a local authority that is detaining somebody, maybe locking
them in their residential home because they are short staffed
and there is an emergency then it would be covered here, but that
would be a violation of Article 5 because it is a local authority.
If it was a private authority, which is not covered by the Human
Rights Act, then it would not. These are areas which are just
difficult drafting areas, these concepts have to be dealt with
by these two Bills going in tandem.
Q586 Stephen Hesford: Whilst you
have described a situation as a potential problem of the Act not
being symbiotic but running in parallel and leaving a potential
working gap, my question was have you any comment on clause 27?
The answer may be no.
Mr Clements: I have not had any
particular insight into that. I have seen evidence that has been
given to this Committee from your session with the Scottish delegates
who point to that as being a lacuna, that there could be a big
problem and I agree with that insofar as I am not a mental health
Q587 Chairman: The situation that
you have been describing is one where you see this Bill becoming
law, however amended by our work and the Mental Health Act 1983
being in force alongside that. That is the situation you are describing,
is that right? We are not talking about mental health Bills which
are drafted or not drafted, but the situation could be that this
Bill, however amended, and the Mental Health Act 1983
Mr Clements: I always assume that
the Government will give more priority to the Mental Health Bill
than this Bill, I fear to say and therefore the Mental Health
Bill would come into force before this one.
Q588 Chairman: If it did not, if
the situation is that we had this Bill and the Mental Health Act
of 1983, what is the problem in practice?
Mr Clements: The problem in practice
would be the problem identified by the Bournewood situation
and it will have to be addressed no matter what the outcome and
the Government has committed itself to addressing that issue.
Q589 Baroness Fookes: You clearly
disapprove of general authority as currently drafted since you
referred to it as a "blank cheque". Do you envisage
certain restrictions being put upon it and, if so, what might
Mr Clements: I have to restate
continually that The Law Society warmly welcomes this Bill. Like
everybody else, we have views about what we would also like to
see in it. We are concerned about the general authority because
there is no counter-balancing public law protection of rights
and so if somebody abuses the general authority there seems to
be no effective remedy. If there is to be no public protection
provisions in this Bill then we would not like to see what could
potentially be a blank cheque and to have some restrictions on
the amount of money that could be given away, for example. Potentially
you could give a house away and that clearly is not the intention
here because I think this is meant to deal with the very real
problem that carers have day-to-day when dealing with an elderly
relative who has got some money and you cannot go through the
paraphernalia of an application to the court. We would like it
to be somehow kept on a local, small level and we do not see that
the code can do that. So we would like to have some restrictions
on the general authority in terms of the quantity of assets that
can be divested and in our submission we say that it would not
be necessary to pledge credit for instance, to say that their
credit card will do all this: that there are limitations on this
Q590 Baroness Fookes: Could you give
us any more detail at a later stage, because I imagine that is
not the only thing you would be concerned about or would you wish
to make those who exercise this general authority more answerable
in some way? Because this is a draft Bill anyone could suggest
anything they like to improve it.
Mr Raymond: I think that what
we would hope for isthis is in an ideal world and we do
not live in an ideal worldsome form of monitoring of what
people do in the same way that our Scottish colleagues do. They
have a public guardian and the public guardian has the ability
to step in even if he only has a belief that something may not
be quite right. He does not have to have evidence that things
are wrong or that there is financial abuse, but he has the ability
to say if he thinks that things are not as they should be and
he has cited some cases to me. One of them was where the patient
with a large estate was living in secondhand clothes which were
acquired for him from friends and relations whereas the person
with responsibility for managing the affairs was running around
in a brand new German motorcar. There was a clear indication that
things were not right but there was no evidence that the money
to buy the car had come from the patient's estate. That ability
to investigate and require accounts would be ideal. In the sense
that the general authority confers the ability to spend the patient's
money or pledge credit, I think we would be looking for that to
be removed and replaced by something where the only ability to
spend the money came from the attorney, so the attorney would
be in charge of the finances and it would be one person who is
responsible for the money and property side of things, whereas
the general authority was relating really to care and health matters.
Q591 Chairman: You referred to the
public guardian, but the points under clause 48, the "Functions
of the Public Guardian", are you saying that those are not
wide enough, that they should be given more power?
Mr Raymond: I am saying that under
the powers given to the public guardian in Scotland he has the
ability to investigate circumstances and to work with local
authorities and the Mental Welfare Commission where circumstances
suggest that things are not right. Under our system there has
to be clear evidence that there has been impropriety and it is
not the same, you have to go to the court, which is an expensive
process and what we are trying to do is make it more workable
for every day problems that arise.
Q592 Chairman: It does say that one
could confer on the public guardian other functions in connection
with this Act by regulation. That might meet your concern.
Mr Raymond: Yes. I think what
I am really concerned about is that we should not have a situation
where you either had to go to the court or you could not have
the circumstances investigated and there should be a duty for
the public guardian to investigate. It is left a bit in the air
at the moment.
Q593 Baroness Fookes: But you are
looking for some person or some power to oversee those who exercise
Mr Raymond: To ensure that we
do not have the amount of abuse that we have at the moment, yes.
Q594 Huw Irranca-Davies: I have two
points I would like to ask you about. First of all, at the beginning
of this particular discussion I was curious as to whether under
section 6(6), where it says, "The general authority is subject
to the provisions of this Act and, in particular, to section 4
(best interests)" part of the solution to what you were seeking
would be if that were replaced by the phrase ". . . in particular,
to section 4 (general principles)" and to what extent that
would have an impact on what you are seeking. I think you have
answered that. You were seeking absolutely concrete tangible limitations
in some ways which brings me on to the second possibility. Those
will fluctuate over time and by necessity goes back to our earlier
discussion about where the soft law in the Code of Practice lies
and where the hard law in the face of the Bill lies. If there
was something within section 7, "Restrictions on the general
authority", which laid that out there would not be limitations
determined by the sub-agent, that would fluctuate from time to
time and these will be set out in codes of practice. Would that
then, if it put the rest of the detail into the codes of practice,
be sufficient for what you were seeking?
Mr Clements: The Law Society has
always welcomed the general authority on the basis that there
would also be a public law anti-abuse provision and we are now
being asked to look at a Bill which has one without the other
and we are not surprised that a number of organisations are concerned
because it appears slightly lopsided. We are incredibly eager
for this Bill to become law and so we would try to remedy that
if we cannot have public law provisions by the sort of mechanism
you are talking about. There are procedures for particular orders
in the Court of Protection provided they are under £16,000
or something, so we are clearly familiar in court proceedings
that courts have jurisdiction for certain figures, so it must
be capable, if the Government does not wish to publish a Bill
for public protection measures, to bring in the mechanisms, as
you are suggesting.
Q595 Baroness Knight of Collingtree:
This was following on something that Baroness Fookes asked you
and the way you answered it. Of course we hang on your every word,
but there are occasions when you puzzle us because in your submission
about decision-makers, you suggest that throughout the Bill, the
phrase should read, "the person reasonably believes and it
is objectively reasonable to hold this view". Are you asking
for two lots of people, one person to make the decision who reasonably
believes, but then how can you say, ". . . and it is objectively
reasonable to hold this view"? If one person makes the decision,
are you asking for another one to come along and say, "Well,
wait a minute, I am not sure that objectively that is reasonable"?
Mr Clements: Yes, that is a very
good point. What we are merely asking is that this Bill be drafted
consistently with other Bills. In the Disability Discrimination
Act, that is the phrase that is used, but if somebody wants to
discriminate, then they have to justify it, but they must also
believe it to be necessary and objectively it has got to be reasonable.
I could say that I am acting for my mother and it really would
make her very happy if I had a new Ferrari. Now, I honestly believe
that and she loves me dearly, so that would be something that
I honestly believe and for the Act that would be good enough,
but what we are saying is that it should also be objectively reasonable
to somebody else. Now, that is not new. It is a drafting mechanism
that is already used and, as I said, the Disability Discrimination
Act uses that precise wording.
Lord Rix: You mean you get a Jaguar instead,
Q596 Chairman: If you say it is objective,
there must be some criteria. There must be some criteria by which
you measure the objectiveness.
Mr Clements: Yes, one would hope
that the code of practice would include that as it does in the
Disability Discrimination Act. The examples in the DDA are saying,
"I think it is quite reasonable to refuse these people access
to a restaurant because they look strange and they would upset
my other clients". Now, the person will honestly believe
that, but objectively that may not be measurable. I understand
that it is a difficult test, but if all somebody has to go into
court and say is, "I honestly believed what I was doing",
then that is not an adequate safeguard for somebody who has no
Q597 Baroness Knight of Collingtree:
But do you not reach your reasonable decision objectively?
Mr Clements: I see what you are
saying. I do not honestly think that it is actually an incongruous
concept. Somebody must believe what they are doing, but that cannot
be sufficient. Sincerity alone is not a defence in law.
Baroness Knight of Collingtree: Well,
I can only put on record that I think it is a rather difficult
thing to try to do.
Q598 Mrs Browning: I think we all
understand in this place that if you are too prescriptive in what
you write into the face of the Bill, you end up with some very
difficult problems later in the way that Bill is implemented and
then challenged. Is it not the case that those two words, which
we have heard quite a bit of this afternoon, "reasonable"
and "proportional", are the very oxygen by which lawyers
make their money because it is usually the interpretation of those
two words that brings a case to court in the first place?
Mr Clements: But it is also the
oxygen of society. In the pluralistic society people have got
to be allowed a very large margin in what they do, "what
is reasonable", but in some areas where you have very vulnerable
people, that is not good enough to be sincere and it has also
got to be objective. There is some higher standard that in certain
situations the court must account for.
Mrs Browning: I am just testing you!
Q599 Baroness McIntosh of Hudnall:
But are we not being told that this is wording which is used elsewhere
in legislation which has similar objectives and that we may want
to challenge the use of that wording in general terms, but this
is not an appropriate moment in time to do that? What we are being
asked to consider is the compatibility between the situation,
say, of people who are protected by the Disability Discrimination
Act and the situation of those who would be protected under this
Act and that there should be some measurable relationship between
the standards of proof that are used in both situations. Is that
Mr Clements: Yes, I wish I had