Examination of Witnesses (Questions 620-639)|
15 OCTOBER 2003
Q620 Jim Dowd: Is there a potential
conflict for the same attorney dealing with both financial and
medical matters and if there is, how can that be minimised?
Mr Raymond: We have discussed
this and we believe that there is the potential for conflict,
yes of course, but I think we are in a situation where the patient
needs to have health warnings similar to those on the existing
enduring powers of attorney to highlight the potential conflict
and if they make the decision that they want to appoint a spouse,
a partner, a child or somebody in whom they have an enormous amount
of trust to be the person to make the decision and they are satisfied
in their own mind that when they are able to make that decision
the individual will not exploit the situation to their own ends,
then that is the free choice that they will make at that stage.
Q621 Jim Dowd: But would the role
of the attorney in medical matters be radically different from
the way the close family members behave, those fortunate enough
to have them, while they are undergoing serious treatment? Would
that be radically different from the way they are treated currently?
Mr Raymond: It may be that the
attorney would make different decisions from the close family
members because the attorney would be the person, if we are talking
about the attorney dealing with healthcare matters, in whom the
donor has the most trust, the most faith that they would carry
out the wishes.
Q622 Chairman: Is it the case at
the moment that if you get an enduring power of attorney, that
is much better than having a protection order because it is easy
to get, it is more flexible and the protection order requires
a statement of assets? Would that still be the case with the lasting
power of attorney as in this Bill? Would that be a better option
if you can achieve it than a protection order?
Mr Baker: It is all to do with
capacity because the Court of Protection receivership order would
not actually be put in place unless the person had lost capacity.
Q623 Chairman: Exactly.
Mr Baker: But they could not enter
into an enduring power of attorney unless they had the capacity
to enter into it.
Q624 Chairman: Sure, but there are
cases of course of dementia where at an early stage you could
get an enduring power of attorney when later it becomes a Protection
Order in the case of the Court of Protection. Now, if you did
that, would you then have to go for a lasting power of attorney
or a protection order as the dementia got worse?
Mr Baker: No, that is not my understanding
of how it would work. It would work as a registered and enduring
power of attorney.
Q625 Baroness Knight of Collingtree:
Is it not the case now that this particular point put to you by
Mr Dowd that non-medically qualified attorneys can override a
professional clinical judgment about medical treatment be rather
complicated by the fact that the medical profession themselves
now call providing food and/or liquid medical treatment? Has that
not made it rather more difficult?
Mr Clements: We tend to fall silent
when the issue comes back to advance directives and rights to
life. I think it has been complicated by that decision and I think
we would agree.
Q626 Baroness Knight of Collingtree:
Because there is no force of law about that. It is just something
that the doctors have decided at this time, is it not?
Mr Clements: It is something that
has been questioned in certain human rights circles, yes.
Q627 Chairman: Are you saying that
the Law Society agree with the BMA on their reading of this?
Mr Clements: No, I am saying that
I probably should have kept quiet! It is a very difficult area
and what I am saying is what I think is echoing what has been
said, which is that the BMA statement on that has attracted some
questions in certain human rights circles.
Q628 Chairman: Would you not express
a view as the Law Society?
Mr Clements: Not as the Law Society,
no. The Law Society has no view.
Laura Moffatt: I am just slightly worried
about the concept of just feeding and giving someone fluids being
treated as a treatment when in fact of course it is the method
by which that fluid or nutrition is administered which is the
part which they consider the treatment, and it is very invasive,
either a gastrocolotomy or a tube into a vein, so that is it,
not the administration of fluid or food and I think we need to
be very clear about that.
Q629 Baroness Knight of Collingtree:
The fact is I did want to make this very clear for the record,
that it is not a question merely of the artificial giving of food
which is called medical treatment, but it is everything now to
do with giving food, and that is a serious matter. Would the draft
Bill be actually improved by the inclusion of an explicit definition
of "basic care" and that definition, provided you feel
that that should happen, what should it encompass?
Mr Clements: We do not think that
the Bill would be improved by a further clarification of that.
Baroness Knight of Collingtree: So there
is no need to answer the second one.
Chairman: We can move on.
Q630 Baroness Fookes: Court-appointed
deputies are given considerable powers under the Bill. Are you
happy that there are sufficient checks upon those powers?
Mr Baker: This is a question which
falls to me because this is what I do all the time, I am a professional
receiver. I think there are sufficient checks because the court
has an absolute power to effectively order deputies to provide
records at any stage. In relation to the financial aspects, there
is also the provision for security which, as you will be well
aware, bites for monies to be paid back immediately into a patient's
estate should there be any difficulties whatsoever. What I am
unclear about at this stage is how it will work in terms of any
welfare decisions in terms of the checks and how that is being
taken forward. I have to say at this stage that without having
more examples of how this will work, it is very, very difficult
for us to give you an accurate response to that because we are
not sure how the court will check upon these decisions and we
would envisage that in a lot of cases most of the decisions may
be made on a one-off basis by going back to the court for an actual
definition of what they want the deputy to do.
Q631 Baroness Fookes: Is this something
where you will give it further consideration for our benefit or
Mr Baker: I can certainly try,
but it is a very difficult area.
Q632 Baroness Fookes: or how
you might see it work?
Mr Baker: I am certainly prepared
to do that.
Q633 Baroness Fookes: I think that
might be more helpful if we could have in mind what you think
would be helpful. Could I then turn to the question of the Court
of Protection itself in its new format under the Bill. Will those
who have mental incapacity be able to access it sufficiently?
Mr Baker: Well, there are two
aspects to the access. There is the access of actually physically
being able to get to court and also the accessibility of being
able to have access to justice. In terms of the accessibility
to court, it was a rather retrograde step moving the Court of
Protection to Archway where it is impossible virtually to get
into the building and the suggestion that they make arrangements
for the Court of Protection to sit around the country I am intrigued
with, but I think there is an importance that we do not dilute
the expertise which is within the Court of Protection and the
skills which the judges and officers have. When you talk to other
people in other jurisdictions, they are most impressed that the
Court of Protection have all the mental incapacity dealings with
finance under one roof. Naturally, if this Bill is taken forward,
we will have more incapacity dealings under one roof and I think
what we have got to be looking at is a better system for people
to be able to actually have physical access to the court. At the
moment the court sits in Preston and in London, but there is no
reason whatsoever why video-conferencing should not be used more
from whatever court, magistrates' court or whatever obviously
provided it is in place. The other thing which is quite feasible
is that there is no reason why in certain circumstances the court
should not sit elsewhere other than a court building. We have
actually had a hearing in our own office in Sheffield where the
Master has come up and it was a sensible thing to do because it
is very important that the patient has their points of view put
across, so I think this is something which I do not perceive will
be a difficulty, provided people are able to work with it.
Q634 Baroness Fookes: Some of our
previous witnesses have been very keen on the development of advocacy.
Have you any views on that?
Mr Baker: This is the second point
of the accessibility and this is something which my colleague
Luke Clements knows far more about than I do.
Mr Clements: It is all very well
to talk about courts which are accessible or which have sound
loops or have lifts, but for every one person with mental capacity
difficulties to get to court, there are probably 100,000 who have
no access because the mere concept of stepping into a solicitor's
office is intimidating, as it is for all of us, and the reality
is that people with mental capacity difficulties never take the
first step. There have really only been about four cases in the
European Court of Human Rights on this issue of the tens of thousands
of cases they have looked at. It shows that people with mental
capacity problems do not have access at the very first stage.
We see the issue of advocacy as utterly fundamental. I have already
spoken about the fact that to take instructions from somebody
with capacity difficulties may take hours and hours and hours
and the Legal Aid Board or whatever it is called now, the Legal
Services Commission, is not going to pay me a high rate to do
that, so people with capacity difficulties have got to have advocates
who will enable them to access this. There may be financial problems
with that, but the Government, in its legislation, has effectively
created an obligation to have national advocacy. In the Valuing
People White Paper it said that that it would be a core service
that every local authority should serve people with learning disabilities.
In the Older People's National Standards, the idea is to develop
older people's advocacy rights. The Mental Health Bill will create
a statutory right, if it emerges in the same form, to advocacy.
In children's proceedings there is now a minimum for advocacy
and of course we now have the Patient Advocacy Liaison Service
which has been run by the CABs in large measure throughout the
country providing an advocacy service through the NHS process,
so we have at least five separate developments of advocacy and
we would say that that is actually fundamental to enabling people
with capacity difficulties to access to justice.
Q635 Baroness Fookes: This of course
could be very expensive. I may now be being cynical, but government
is often the ends, but not the means.
Mr Clements: Well, Parliament
wills both of these things hopefully.
Q636 Chairman: It does not always
work like that!
Mr Clements: I think the point
we are saying is that the apparatus for advocacy is already there.
I think the implications of Article 6 of the European Convention
and now the Human Rights Act are that there will have to be advocacy.
Article 6 says that you must have access to justice and the court
has said in certain cases that that could be legal aid, but we
would say that much more fundamentally serious than to have legal
aid, although lawyers would benefit from that, is to have advocacy.
Advocacy exists throughout the country, it is a growing movement
and there are, as I said, at least five government initiatives
on this and the Government has put some significant money into
some aspects of it, I think some £3.5 million into it in
Q637 Baroness McIntosh of Hudnall:
This does flow from the discussion we were just having. You said
in your written submission that you were puzzled about the way
that the lasting powers of attorney provisions were set up there
is the issue about jointly and severally and the potential for
there to be two or even three or more attorneys, but you have
said very clearly that this would be subject to there being adequate
provision to resolving disputes. I can imagine circumstances in
which disputes between people with power of attorney, particularly
family members, one might say, might be quite hard to resolve.
Do you have a sense of what would be the appropriate or indeed
adequate arrangements for dispute resolution in that sort of area,
particularly informal mechanisms rather than those that ultimately
wind up in the courts and can you talk a little about how your
obviously very fervent belief in advocacy as part of this overall
process fits into that because, on the face of it, it looks as
if there might be a role for an advocacy procedure in resolving
disputes of that kind?
Mr Clements: Perhaps I can deal
with the very simple bit rather than the complex issue of lasting
powers of attorney and more than one appointee. I am not suggesting
that advocacy is the cure, particularly where you are dealing
with two people who have capacity who are arguing about who is
in a position to make decisions dealing with an incapacitated
person. I am not sure advocacy would be for them, but there are
community mediation schemes, I think, in relation to housing disputes,
anti-social behaviour and those sorts of things which are being
developed by local authorities and there are mechanisms which
could perhaps deal with that.
Q638 Baroness McIntosh of Hudnall:
So you are saying that there are models for conflict resolution
which could be easily moved into this area?
Mr Clements: Yes.
Q639 Baroness McIntosh of Hudnall:
But in some circumstances
Mr Clements: I think as the public
law, administrative law system has grown enormously and the judicial
reviews have grown beyond expectations, we are now all looking
for alternative dispute mechanisms and the court itself has been
quite strong on that. We warmly welcome solving things locally
and as soon as possible and there are models, although we cannot
say in this situation that there is this solution, whereas we
think with advocacy there probably is with the problems that learning
disabled people have.