Taken before the Joint Committee on the Draft Mental Incapacity Bill
on Wednesday 15 October 2003
Barker, B Mr John Bercow
Carter, L (Chairman) Mrs Angela Browning
Fookes, B Jim Dowd
Rix, L Huw Irranca-Davies
Memorandum submitted by The Law Society
Examination of Witnesses
Witnesses: MS VICKI CHAPMAN, Head of Law Reform, MR PETER RAYMOND, Practising Solicitor, MR NIALL BAKER, Practising Solicitor, and MR LUKE CLEMENTS, Practising Solicitor, The Law Society, examined.
Q544 Chairman: Welcome. Thank you for attending and for your written evidence. This session is open to the public and it is being recorded for broadcasting. There will be a transcript of the evidence which will be published with the report and you will be given a chance to check it for accuracy. If we are unable to go through all the questions or if there are any other points which arise in the discussions which you wish to address, perhaps you would be kind enough to write to us after the meeting. We are not here to write a White Paper on mental incapacity, we are here to deal with the draft Bill and all our questions are structured around the structure of the Bill. Perhaps you would like to start by introducing yourselves.
Mr Clements: I am Luke Clements, a solicitor. Perhaps I will let my colleagues introduce themselves.
Mr Raymond: I am Peter Raymond, a solicitor from Tunbridge Wells.
Mr Baker: I am Niall Baker, a solicitor from Sheffield.
Ms Chapman: I am Vicki Chapman, Head of Law Reform at The Law Society.
Q545 Chairman: Thank you very much. What is the value of the draft Bill beyond putting into statute what is already encompassed by common law?
Mr Clements: I think we would have to answer that by saying that in fact is two questions. The first is it implies that the common law already deals with many of the issues in the Bill which we do not believe to be the case, but it also suggests that the common law is an adequate substitute for legislation. The Law Society believe that in general that is not the case. There may be situations where is it is better to leave a matter in the common law, perhaps a fast moving or particularly controversial area which may be in this Bill. In general we believe that there are very strong policy grounds for having in statute principles that may be distributed through the common law. I deal a lot with the poorer end of the market, if I might put it that way, with social workers and health care professionals, with people who do not have money but have particularly serious problems and in my view 95 per cent or over of social workers, health professionals and carers have not the slightest idea what the common law situation is, they do not know what the principles are, and if you were to say the principles are best interests then in my view they would think best interests is a paternalistic view, it is what we often call the lettuce and the jelly situation.
Q546 Chairman: Perhaps you could explain that, please.
Mr Clements: If you have a client who has a severe learning disability or is confused, what is in their best interests, is it lettuce or is it jelly? Many people would say lettuce is in their best interests because it is good for you and what have you, but if this person is an adult of some age they may prefer jelly, and it is a hugely important issue. I think what we want to get across is how important language is. I know it may be an area where one says this is just semantics, but it is incredibly important to get across to the general public that this is a Bill about rights, rights for people with mental incapacity and it is not the state knows best or the carer knows best. This is empowering people with limited capacity and therefore we need to have principles, not best interests and those principles need to be set out in the statutes so people know what they are, very much like the Children Act transformed what was a very uncertain position in the mid-1980s. In the mid-1980s the common law dealt with the principles of children and many very fine judgments have been made regarding what the principles should be, but most professionals were in the dark on that, although the Children Act transformed that and now most professionals, if you say to them what is the situation, will have the check-list.
Q547 Chairman: The check-list in the Bill of best interests, do you want the same as those principles or do you want the principles set out?
Mr Clements: We welcome the categories that are called best interests. We have severe reservations about calling them best interests because of the jelly and the lettuce phenomenon.
Q548 Chairman: What is the term you would use?
Mr Clements: We would call them general principles, very much along the Scottish line and I think we would have to say that these general principles would not just apply to one category of people who have got mental incapacity, they would have to apply to all human beings and they must be compatible with the European Convention. Therefore they must have been started from the no order principle which is that the state should not interfere in people's lives unless there is strong grounds, not on the balance of principle. So there is a presumption in terms of no order and there should be the least restrictive interference.
Q549 Baroness McIntosh of Hudnall: You said this is a Bill about the rights for people with mental incapacity. I wanted to ask you whether you mean it should be a Bill about rights for people with mental incapacity or it is one in its present condition. It was put to us yesterday by witnesses from the Association of Directors of Social Services that the danger that the Bill stood in was that if left as it was it might become a charter for carers and service providers rather than for service users.
Mr Clements: I have to say at the very outset that The Law Society very warmly welcomes this Bill and we do believe that it is an incredibly positive statement. As we give evidence and when we talk amongst ourselves we must keep reminding ourselves of the fact that we are in favour of this Bill but we do have certain reservations about it. The biggest reservation we have is the absence of public law protection for people with limited or no realistic mental capacity. I think the Bill is about the rights of incapacitated people, but it is a major concern to us that it does not have more protection for people. In my area of expertise, which is people who do not have financial assets but who have capacity difficulties, I think that abuse, sexual and physical, is endemic, it is a very wide situation and it is not discussed. My colleagues, Peter and Niall, would say that financial abuse is probably endemic and therefore there is an absolute need for protection, but we do welcome this Bill and we do strongly congratulate the Government or whoever for bringing these things forward.
Q550 Chairman: Is the implication of what you are saying that if the protection is not in the Bill then the abuse, if it is not affected by the rest of the Bill, would go on?
Mr Clements: I fear that the abuse will go on whether it is in the Bill or not, but at the moment I am continually being confronted by carers and social workers who are aware of the abuse, but the police do not think there is enough evidence and they feel powerless. There is a procedure that the High Court is developing and the Lord Justice said he is developing it because Parliament has been silent and there is a need for somebody to do something, but that means going to the Family Division of the High Court and that is very expensive. We are very concerned about this definition.
Q551 Baroness Wilkins: Do you feel that if best interests is replaced by your principles statement then that would meet the fears of many of the user groups who say this as a very repressive measure at the moment? Do you think one could then sell it and that it would be seen as a Bill that was protecting their rights rather than diminishing them?
Mr Clements: I think so. I think that words are incredibly important in this area and I think principles is really fundamental because I think most professionals will only know one thing, best interests and it connotes my headmaster talking to me rather than someone who is empowering me. I do not think that would address all of these issues. The general authority is something that I think many self-advocacy organisations will have reservations about and I think we would have reservations about that unless there is some counter-balancing remedy for abuse. So I think it would be twin-fold, it would have to have the general principles which would have to be largely along the Scottish model of no interference and so on and also some powerful remedies which is anti-abuse and probably advocacy, including self-advocacy.
Q552 Baroness Fookes: Would you still have objection to the term best interests if it was much more clearly detailed what is meant in terms of the principles and what should inform it?
Mr Clements: I am sorry to say we would.
Chairman: I am afraid we will have to stop for a few minutes while we have a Commons vote.
The Committee suspended from 4.00 pm to 4.16 pm for a division in the House of Commons
Chairman: Perhaps I could just ask Janet to repeat her question which you had just started to answer.
Q553 Baroness Fookes: You obviously do not care for the best interests principle. Would you be more accepting of it if it were hedged about with general principles and very much more information as to how it is to be interpreted?
Mr Clements: There are two issues that you are asking me to address. We think words in this area are very important because there are six million carers, there is hundreds of thousands of social and health care professionals and if and when, we hope, this Bill becomes law they may get a bit of training on this but it will be rudimentary and something like a phrase best interests will stick and we do not think that that is right at all. We believe there are principles that should inform and empower. We support those principles that are under the heading best interests in this Bill but we would add to them particularly the two that I have mentioned that are in the Scottish Bill, which is (a) no intervention unless it is clearly demonstrated to be to the advantage, so the no order principle ---
Q554 Baroness Fookes: To the benefit?
Mr Clements: Yes, quite. Secondly, that any intervention should be the least restrictive intervention, both of which flow from the Human Rights Act anyway.
Q555 Mrs Browning: You have made clear your support for the Scottish legislation in terms of general principles, is that correct?
Mr Clements: Yes.
Q556 Mrs Browning: You think we should look again at that in terms of this particular proposal in the Bill.
Mr Clements: Yes.
Q557 Mrs Browning: Why is it that you feel one should distinguish between individuals with an acquired mental impairment and those that are born with impaired capacity given that the draft Bill requires every assessment of capacity to be time and precision specific?
Mr Clements: That is a very good point. It may be that in our submission we did not express that as elegantly as we ought to. Again, words and meanings have particular importance here. We have a perception that some aspects of this Bill have been misconstrued by certain sections and one of them relates to the fact that we are dealing with two groups. In my opinion one group has effectively no mental capacity on significant decisions and the other group who have limited capacity, who could make decisions on certain issues with assistance and encouragement could make more.
Q558 Mrs Browning: Just tell me which category you are putting them into. You say one group has no mental capacity. Which group are you saying has no mental capacity?
Mr Clements: I am saying on certain issues some people would have effectively no mental capacity, say an elderly person with advanced Alzheimer's disease. In that area with a progressive illness one might have problems. A younger person or middle aged or older person with learning disabilities may have limited capacity on certain areas and on all areas would have quite a lot to contribute towards a decision. These two groups are inevitably dealt with in this Bill. The group that is capable of self-advocacy to a degree is feeling that they are being dealt with as though they have no capacity at all. We were trying to express in our submission that these are separate categories, of course they mesh into each other and somehow there would have to be a mechanism to explain that they would have to be dealt with differently because the principles would stack up differently for both of them and it is that merger of these two groups that has perhaps caused some of the disquiet.
Q559 Mrs Browning: I am still not quite clear in my mind why you differentiate between acquired impairment and those who are born with it. When a child is born with a learning disability, for example, there will be some people who will be on the spectrum and although they are born with a learning disability and will inevitably die with a learning disability, in between there are all sorts of situations that can improve their ability to contribute towards decision-making. For example, there is the technology that is used for people without any speech or hearing and things like that and the support packages that can make a huge difference to someone's ability to live independently or not, and resources has been a big issue for us in terms of whether what is deliverable has really got the resource base to it. I am still not quite sure why you differentiate between born and acquired.
Mr Clements: I think that is the inelegant bit in our submission.
Q560 Mrs Browning: Would you wish to withdraw that?
Mr Clements: I accept what you say on that issue.
Q561 Baroness Fookes: Inelegant or inaccurate?
Mr Clements: Inappropriate.
Q562 Huw Irranca-Davies: I am still unclear. You mentioned earlier on the general principles. If there were general principles that were underwriting this Bill in a similar way to Scottish legislation then those could be fully applied regardless of age, they are in effect general principles to apply to any human being and yet, if I understood you correctly, what you are suggesting is that there is a different approach amongst these two different user groups and those general principles need to be written differently and framed differently for those two groups. I may be misunderstanding you.
Mr Clements: Again, I may have been inelegant. What I was trying to say there is that these two groups inevitably are dealt with by the Bill. I think the Bill has to deal with a wide spectrum of incapacity problems. Somebody at one end of the spectrum who really has very limited capacity due to a progressive form of dementia and is elderly and a younger person that is born with learning disabilities you would apply the same principles to but the outcome would be different and that must be the case.
Q563 Mrs Humble: I am afraid I am still not clear what you are saying here. Why should the outcome be different? Taking each decision separately and first of all determining whether or not an individual has capacity and then looking at whether or not they have the capacity to make a decision in that particular circumstance, how can the outcome of applying the best interests principle be different for people whether they were born with a disability or acquired it through accident or illness?
Mr Clements: I have accepted that that was inaccurate. That distinction between those two groups was inappropriate for us to put in the submission and I have accepted that. What happened is that when we made the submission we put in two groups, which was the one that had no capacity effectively and the one that had only limited incapacity and those two groups are dealt with in the Bill. The inclusion of the acquired deficiency I think was unhelpful.
Q564 Laura Moffatt: We have talked a little bit about the general principles today and in actual fact we have spoken a lot about it in this Committee and we are really trying to make sure this Bill is in good order. Could you give us any other examples from any other jurisdiction or the Scottish Bill as it exists that should be included or that you believe would strengthen this Bill? As I have said, we have spoken about the fact that you much prefer having some sort of general principle over best interests. Is there any other example you can give us?
Mr Clements: We have not found any from any other jurisdiction in our searches. I am not saying it is exhaustive but it has been quite thorough.
Q565 Laura Moffatt: Could you say where?
Mr Clements: We looked at the jurisdictions of the United States, Canada and Australia and New Zealand. As I understand it New Zealand was the blueprint for the Scottish legislation and is to be preferred. We accept the best interests list that appears in this Bill and we welcomed it when the Law Commission published it and effectively it is the same as the Law Commission's. Having had the benefit of what has happened in Scotland, I do not know whether there was a convincing case for the inclusion of the no order principle effectively, which was you should not make an order unless there ought to be one, the least restrictive interference will be appropriate. The other one that I can think of which would appear in the Children Act is the issue of delay. The general principle of delay operates against the interests of someone, it is a general principle.
Q566 Laura Moffatt: In your very helpful written submission you suggest some different ideas for the Bill that come from The Law Society and they are not taken from any other Bill apart from the general principle issue from the Scottish Act, is that right?
Mr Clements: We looked at other areas, but insofar as it has been formed by anything substantial, it has been from the Scottish experience.
Q567 Baroness Knight of Collingtree: Coming back to this question that you raised of the difficulties of the varying degrees even at varying times of people to make decisions, I would like to ask you if you think that the draft Bill as it stands places sufficient emphasis on the need to deal with that particular difficulty and the need to facilitate the communications of people who do have incapacity?
Mr Clements: The Scottish Act is slightly stronger on this. We very much welcome what is in the Bill, it is very much in accordance with what the Law Commission did. The Scottish Act has a line and a half more about the efforts that one should make to communicate and we would welcome that expansion. We welcomed the fact that in this Bill there is that emphasis but we think it could be tightened up a bit.
Q568 Baroness Knight of Collingtree: This follows something about which you will not be aware but it was something that was said to us yesterday. In your submission you say a person should be free to take a risk, to make a capricious or bad decision or one that does not appear to be in their best interests so long as their capacity is not disproportionately impaired. We need to have a little clarification of that bearing in mind that we had some evidence yesterday that is rather different from that.
Mr Clements: I think the classic example will be the elderly frail person that wants to live at home and everybody says that it is in his/her best interests that he/she goes into a residential care home, or the family that is caring for somebody with learning disabilities that has views on those situations. The people should be allowed to take a risk.
Q569 Baroness Knight of Collingtree: Do you think, for instance, to cite a case that was put to us yesterday, that if someone meets a visitor at their door and after a short conversation writes a cheque for £5,000, there ought to be some level of interference with that person's doling out of their own funds or not?
Mr Clements: Yes.
Q570 Baroness Knight of Collingtree: You think there should be some interference with it?
Mr Clements: Yes. The issue here is what is proportional in any situation. It is part of the human condition to take risks and that is what makes our lives fulfilling and enjoyable. I fail to understand why the right to take risks and to do things on a whim should be taken away from one group of society, but obviously there are certain things that are outside it. If somebody has not got the capacity to make a decision about £5,000 then it should be a decision that is outwith their ability, they lack the capacity to do that.
Q571 Baroness Knight of Collingtree: You seem to be facing both ways on this. Is it not the case that a person has a right to dispose of what is their own in the way they think fit even if we do not think it is fit?
Mr Clements: Precisely. My colleagues understand money much more than I do, but what I would say is that of course you should have the ability to dispose of your bounty as you wish as long as you comprehend the implications of that situation. The capacity you need to give away £5,000 at law will be a different test to the capacity you would need to give away £1,000 or £5, but providing you have the capacity to do that we should allow people to do it. We all know lots of very mentally capable people who use their money irrationally.
Q572 Baroness Knight of Collingtree: Do you think the Bill actually does enough to make it easy for decisions that people make to be properly conveyed? Is it easy enough as it is or should we do more?
Mr Clements: We should do more to facilitate communication with people with that mental capacity, yes. As I say, the Scottish Act has an additional part about trying to engage in communication and improve communication. I think it is the experience of all the people who have come into contact with learning disabilities that you need an enormous amount of time to understand the level at which they are functioning and that is something that cannot really be over-estimated, the amount of time you need to spend with somebody which often lawyers do not have and that needs to be stressed in the Bill.
Q573 Mrs Browning: I just want to test where you are placing the balance between the right of the individual to take risks and the responsibility that may rest with social services, close relatives and others particularly in the case that you yourself gave us of the elderly person who wants to stay at home and categorically refuses to go into residential care. We all know feisty old ducks, God Bless them, who say, "I'm saying here and I don't care what the risk is, I'm going to carry on", and that is fine, they clearly have made a considered decision about it. More common is the case of the elderly frail person with a deteriorating ability to feed themselves properly, an increasing risk of falling, perhaps a history of starting to fall and sometimes when they have the little buttons round their neck and they do fall, they forget they have got one so they just lie there on the floor until somebody happens to find them maybe a day or two later. Where is the balance there?
Mr Clements: It is very difficult to draw, is it not?
Q574 Mrs Browning: It is.
Mr Clements: What I would always say is that the ability to have somebody make a capricious decision is not unconstrained in the sense that I think we all have a duty to cajole and give advice and give strong views to people like that. With many of my clients I would say that this is ridiculous. It is not unreasonable to cajole somebody, to give them advice because we influence all the people we know about the decisions they are making. I would not say to my daughters, "It's up to you, I am not going to give you any advice", and I think that we have the right to do that to people with learning difficulties and elderly people as well. We can give them robust advice and try and cajole them to do what we want but ultimately it is their decision.
Q575 Lord Rix: You have concentrated a little bit on money now and elderly people in terms of freedom of expression and freedom to spend it. Suppose a decision is taken by a person to live in the utmost squalor and I mean the utmost squalor, with animals around the place being fed all the time and the other things which happen when you live in those conditions which could adversely affect your health, how do you begin to gauge, if they appear to be in full control of their faculties, when you have got to take steps to improve matters with regard to their living conditions?
Mr Clements: You are asking some of the very most difficult questions and they are probably social work not legal questions. Under the National Assistance Act, section 47, there is power for authorities to intervene in situations where there is an environmental health problem. As you may well know, the research shows that when local authorities do intervene to remove frail people from squalor situations they tend to die very quickly.
Q576 Lord Rix: They may not be a frail elderly person, they may well be someone in middle years, even younger.
Mr Clements: Most social services directors would say that they have used their powers under section 47 in situations where it was the only thing they could do and they did effect positive change. There is therefore clearly a need for a power of that type.
Q577 Lord Rix: And you believe that this Bill allows that to happen?
Mr Clements: The Bill does not affect the National Assistance Act. Presumably this Bill would leave that intact because these people would have capacity and this Bill is not dealing with people that have capacity, therefore the local authority would not be able to use any other power than the National Assistance Act.
Q578 Mrs Browning: Is it not ironic that in those sort of cases - and we have all seen them - the RSPCA would step in to protect the animals long before anybody would step in to protect the person?
Mr Clements: Yes.
Q579 Mrs Browning: Is there not something rather worrying about that?
Mr Clements: There certainly is.
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 completely untenable.
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 fact - and I do not even want to get drawn into this unless you want to - we 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 the code.
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 invest in, 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 Bill ---
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 Boorman case and you have what is called the 'Boorman 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 described 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 Human Rights, then it would not. These are areas which are just difficult drafting areas, the concept that they have to be dealt with by these two things 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 racoon, but there could be a big problem and I agree with that insofar as I am not a mental health expert.
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 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 Boorman 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 they be?
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 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 like to see what could potentially be a blank cheque 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. There are limitations on this authority.
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 is - this is in an ideal world and we do not live in an ideal world - some 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 finance level 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 Clements: 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 general authority?
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, in clause 7.
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, do you!
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 capacity.
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 not so?
Mr Clements: Yes, I wish I had said that!
Q600 Stephen Hesford: Well, can I disagree with Baroness McIntosh because I think it is more fundamental than that. It is a very well-worn phrase in law, the reasonableness test, and the reasonableness test is objective. It is not subjective, it is objective. Your guy with the Ferrari would not get away with just an honest belief if it was not based on a reasonable description of the relationship that he had with his mother, so it is otiose. What you are arguing seems to me completely otiose, not necessary, because it is a well-worn phrase which is used in legislation up and down the country and has been used for a long, long time. What else is a reasonableness test other than objective?
Mr Clements: This Act does not say that it has got to be reasonable. It says that the person must honestly believe that it is reasonable.
Q601 Baroness McIntosh of Hudnall: Reasonably believe.
Mr Clements: They believe it is reasonable. They are sincere.
Stephen Hesford: Where are we?
Huw Irranca-Davies: It is 6(1)(a).
Q602 Stephen Hesford: There is nothing about his belief.
Mr Clements: The person reasonably believes what he does -
Stephen Hesford: It is not about an honest, mistaken or crazy belief, but it is reasonable belief.
Baroness Fookes: Which would then be tested in a court. Who decides what is reasonable?
Stephen Hesford: But it is often tested dangerously.
Baroness Fookes: Precisely.
Q603 Stephen Hesford: But this is an objective test; it is not a subjective test.
Mr Raymond: If you are looking at the provisions of 4(4), which refers to "reasonably believes", it is the person making the decision who "reasonably believes that what he does or decides is in the best interests of the person concerned". Earlier in the clause there is a conflict with that, belief, because you have got, "the act must be done or the decision made in the person's best interests", the patient's best interests. In subclause (1) it is saying that the act must be done in the person's best interests, that is the patient, and in clause 4 there is a let-out because you are saying that the person making the decision reasonably believes that what he or she did was in the person's, the patient's best interests. So there is a conflict there in the wording, and I think you need to be looking at that and saying which rules. I think what we are saying is that 4(1) should prevail rather than 4(4).
Baroness Barker: We have had one group of people in our deliberations who have attacked the word "reasonably" and a second group of people who have attacked the word "belief", so there is clearly a problem here. I have been thinking ever since they did that that what is not in clause 4 is any mention of the evidence as to why somebody believes something and reasonably believes something. I wonder whether, in your experience, a requirement to produce evidence to back up people would help.
Stephen Hesford: But that is what happens now. That is the whole point.
Baroness Barker: I am sure it does and I am sure it does in the courts, but the people who were raising these things were not lawyers. I am quite happy to take what you say as being a legal test, but it is not something that other users of this legislation appear to understand because we have had big representations on it, so I am trying to find a way ----
Stephen Hesford: But is that because they lack capacity?
Chairman: It is the famous test of the man on the Clapham omnibus.
Stephen Hesford: Yes, exactly and he applies here.
Chairman: Exactly. I think probably we have had enough discussion on "reasonably" and we can now move on.
Q604 Huw Irranca-Davies: I would like to tie a couple of questions together because they do lead on and, to let you know where I am heading, this is to do with human rights as they affect people who lack capacity where a judgment is made and also Article 2 of the Convention on Human Rights. Perhaps I can start by asking a broad question. In your opinion, is this draft Bill compatible with the Human Rights Act 1998 and if not, what is going to be used?
Mr Clements: We have concerns over clause 7 and I think that those are accepted by the Government probably, that under clause 7 it effectively seeks to codify the common law necessity that I can, if it is necessary, detain you, but it says under the general authority that it does not authorise a person to restrict the liberty or movement whether or not he resists, under section 7(1), "unless the person reasonably believes that it is necessary to do so to avert a substantial risk of significant harm". There is no requirement there that there be immediate power and it is also again a reasonable belief. We do not allow police officers to reasonably lock people up if they reasonably believe it is necessary and it has got to be objective, so we could perhaps return to this argument where I think we both stated our views and we agreed to differ, so we have reservations about that and there are two reservations in relation to that clause. If it is a public authority that is doing that, then Article 5 of the Convention says that there must be a procedure by which this happens and there is no procedure prescribed here and that is the Boorman gap problem. The other problem is what happens if it is an individual doing that because if it is an individual doing that, it may not be detention within the meaning of Article 5 because that has to be state detention, but it would be degrading treatment under Article 3 to lock somebody up. The court has repeatedly said that where somebody is exposed to risk of degrading treatment, Article 3, read with Article 1 of the Convention, requires there to be laws to deal with that and there are no abuse provisions in this Act. Therefore, it seems to the Law Society that the absence of abuse provisions here are a problem. As we have heard, the Court of Appeal is trying to do its best, as they said in Re F, that since Parliament has not enacted any legislation, they will speak where Parliament has been silent and that is an unhappy situation where the courts are legislating to fill a gap, so we have reservations about that in particular. In our submission, we have pointed to a problem with appointeeships which I think is a clear violation of Article 6(1) in that the person who is the subject of an appointeeship, a social security order, has no recourse to an independent tribunal, which is properly a civil matter within the meaning of Article 6. We have also significant reservations about the issue of access to court. Under Article 6 of the European Convention people should have access to court - it is within the concept of a fair hearing - and of course people with mental incapacity have huge barriers, social and legal barriers, to accessing court. One of them is the fact that there is no legal aid available in the current Court of Protection and in the case of (?), it suggested that that would probably be a violation of Article 6 again, so I think that those are the major concerns we have, substantive ones, regarding that.
Q605 Mrs Browning: Following on from that, last year the Government produced a draft Mental Health Bill which went out to consultation, but was not then presented in the Queen's Speech and there was some consideration that if the Incapacity Bill came forward first before a new Mental Health Bill, it would obviate the need for a new Mental Health Bill. One of the most contentious issues in that draft Mental Health Bill was about matters that surrounded things like the definition of "personality disorder" and new powers that might be given to detain people often for an indefinite period based not on any harm they had done anybody or themselves, but on a perceived situation, say, by a psychiatrist. Now, I did quite a lot of work on that at the time because I thought it was a Bill that was going to come forward. I was very concerned at the lack of definition of "personality disorder", it appears to be a spectrum, and I was very concerned about that part of the Bill for that reason. Is there anything in this Bill, including clause 7 which you have mentioned, which would allow that situation to progress in this Bill in the way that it was perceived and written in the draft Mental Health Bill which we saw last year?
Mr Clements: I am not primarily a mental health expert, but we are fairly comfortable with the definition of "incapacity" in this Act because it is a functional definition rather than an organic definition, so I do not think that the problems as we perceived in the draft Mental Health Bill, of which the Law Society has been extremely critical, exist in this definition.
Q606 Huw Irranca-Davies: Could I put a proposal to you which you may want to take up. You went through quite a range there of areas of concern with human rights compatibility and you have rightly highlighted those in your written submission. I am just wondering whether you would want the opportunity to come back with a further written submission expanding in some detail on what you consider. I know I am throwing this ball straight at you, but you certainly went through it in some more detail than you have put in your written submission.
Mr Clements: I think the answer to that must be that we would be delighted!
Q607 Huw Irranca-Davies: Thank you. If I can lead on from that to the controversial issue of Article 2 of the European Convention on Human Rights, that although the state has an obligation to protect life, an individual can choose not to uphold that right, is this your interpretation of Article 2?
Mr Clements: Yes.
Q608 Huw Irranca-Davies: How does this Bill sit with that?
Ms Chapman: Perhaps I can deal with that. We were going to come to this with some later questions. At the Law Society we do not have a policy on this at the moment. We recognise that there are strongly held views on both sides. Our view at the moment is that it is vital to get this Incapacity Bill through Parliament and we think this would be facilitated by the broadest possible consensus behind the Bill. We realise this might not be possible if there is an argument or a debate around the use of advance directives. We would accept, we could live with the provisions on advance directives being removed from the Bill. We do not want this issue to damage the chances of us getting legislation in what we think is a really important area on the statute book. Having said that, it is the Law Society's position and if any of my colleagues want to comment on this from a personal point of view, that would be fine.
Mr Raymond: There is nothing in statute on this subject and we are anxious to avoid a situation, as was suggested earlier, that we might be here to feather the nest of lawyers in the future by prompting a lot of case law. There are a lot of people in the country who want to make provision of this kind. It is a very difficult area, it is very emotive and people hold strong views on both sides, as has been said, and it is extremely difficult to bring forward a form of words which manages to produce the answer which one body of opinion wants without crossing that very thin line of what is and is not acceptable. It has occurred to us that it might be possible to have a standard form of words which would be produced in a way similar to the enduring powers of attorney form which would be acceptable and would be accepted by all sides, but whether that is living in cloud cuckoo land, I do not know, but that would be an ideal situation where we could have a standard form of words. I do not know if we could reach that, but that certainly would satisfy one body of opinion.
Q609 Lord Rix: I personally believe that an advance directive or a living will is possible to write which is sufficiently liberal to allow the medical profession and your relatives, et cetera, considerable latitude when it comes to the last days of your life and I believe that in that respect advance directives to refuse treatment could be worded in such a way in the Bill as to make it acceptable to 90 per cent of the public, if not the whole lot, and do remember that advance directives are voluntary. You would like to see them removed entirely from the Bill, would you?
Mr Raymond: No, that is not what I am saying.
Ms Chapman: I think as the Law Society we are not saying that. What we are saying is that we would not like to see the law flounder on this issue and if they were removed, we could live with that rather than seeing this ending up causing the Bill not to proceed.
Mr Raymond: I was expressing a personal view, that perhaps if advance decisions or advance directives, whatever you call them, proceed, we would want to have it as non-contentious as possible because we would not want to see a situation where every time it had to go to the court, you decide because that would not be a satisfactory solution..
Q610 Lord Rix: I would agree with that, but would you not think it possible, and I have given you some very rough wording just now, to take that away along with other submissions which have been made from, I think, the Terence Higgins Trust and others and to perhaps come back with a response to this Committee as to perhaps a change that you would like to see in advance directives on the face of the Bill?
Mr Raymond: I think the difficulty is, as has been said, that the Law Society would not want to be making a statement on behalf of the profession about advance directives, but I think if we put forward personal views, that would be different, and we are very happy to do that on a personal basis.
Q611 Chairman: Would you agree that if there was an approach, it would be better dealt with in a code of practice rather than on the face of the Bill because a legal challenge could lead to judicial review, whereas a code of practice could indicate the sorts of things that should be included in that and it would be safer?
Mr Raymond: I think the difficulty, Chairman, is that at the moment we have a situation where advance directives have no statutory authority and people who want to make such a directive do so in the knowledge or the lack of knowledge of certainty. They do not have the ability to say whether a particular doctor would carry out their wishes or not because some doctors will accept what the patient has said and others will look at the Hippocratic Oath and say that they have to preserve life at all costs. It is very difficult at the moment and, therefore, I think if there was something in the Bill - this is a personal view - that would make that position clear.
Q612 Baroness Fookes: One could place the directives on a statutory basis inasmuch as you include them, but they would not necessarily have to be obligatory. What about having them in an advisory form?
Mr Raymond: I think that would be fine. I have no problem with that personally.
Q613 Baroness Knight of Collingtree: If that is accepted, could we always bear in mind that there is another side to this? There may well be patients who do wish to be kept alive and that if one side was to be catered for, then the other side, a card-carrying person who says, "If I am unable to speak or am in a coma, I do want to be kept alive", would that not be a good thing to bear in mind at the same time? We are not just looking at one side.
Mr Raymond: No, or you could look at it that people who wanted to have an advance directive would have to opt in and everybody else would have been deemed to have opted out.
Q614 Baroness Knight of Collingtree: That was not the question I asked.
Mr Raymond: I know!
Baroness Knight of Collingtree: It would be better if you stuck to what I asked you as opposed to what you would like me to ask!
Mrs Browning: I am a little concerned about what Baroness Knight has just said because doctors, one imagines, I am pretty sure, would do all that they could to preserve life, that is the Hippocratic Oath, but there does come a point at which doctors have to use their judgment, for example, as to whether to give an operation to somebody who quite clearly may not benefit from that operation, but would be kept alive as a result of it. I just wonder how difficult that would be, and kept alive to what extent? We all share the concern about the withdrawal, say, of food and liquids. I think it goes without saying that there has been a lot of debate about that aspect, but in terms of medical intervention, at what cost to the individual, at what cost in terms of (?) because there may well be procedures that could be carried out if you have somebody back to theatre for whom clearly another operation is not going to work. It might keep them alive for another fortnight, but when do you actually stop chemotherapy or when does the chemotherapy itself become part of the problem?
Baroness Knight of Collingtree: But is it not the case these days that doctors no longer swear the Hippocratic Oath and it is not part of their training and some of them who do not accept it do not have to agree to it? I think if we imagine that all doctors are there with the Hippocratic Oath firmly in their backpack, we are wrong because they no longer sign up to it.
Q615 Chairman: Perhaps we should debate this between ourselves. There was the example in the press recently of somebody whom I know very well who is extremely severely disabled and she was very, very ill with pneumonia in hospital and the doctors assumed she would not wish to be resuscitated because her quality of life was so poor, not with the pneumonia but with her disability. Of course she insisted that she wanted to be resuscitated and that is an example of what kind of impact this might have where it is the reversal of an advance refusal and it is an advance insistence. Is that right?
Mr Clements: There have been a number of colleagues that I have who have found that the Diane Pretty case was actually very harmful because there was some suggestion that we look down on people like that as though their life is not worth living effectively. Who are we to say? I want to reinforce what my colleague has just said. The Law Society was instrumental in trying to get the Law Commission to look at this area in 1995. We are dealing today with a group of people who do not vote, who do not have any political clout, who have really no legal rights whatsoever and it is of tremendous credit to Parliament today that it is actually legislating because there is no huge, overwhelming demand for this, although it severely affects the lives of countless thousands of millions of people. Ever since this Bill was first drafted by the Law Commission, we have been plagued effectively by this issue of euthanasia and we are so desperate to get at least some aspects of this Bill that we would really forgo this aspect, although individually we have views. As the Law Society, this has been our committed sort of aim for ten years and we have come so close and then again we have this debate where reasonable people on both sides can have views.
Q616 Jim Dowd: On this idea of advance refusals and now, as the Chairman has said, advance insistence, I put this proposition to you which is that I believe that the law should be no more intrusive in people's lives and certainly no more than the majority of the population thinks it need to be. If we have two categories, both advance refusals and advance insistence, will not the bulk of the population who would otherwise not be affected by this measure have a choice to make? Surely the position that we are admitting, unless there is strong evidence to the contrary, is that you would expect to have whatever medical treatment is possible rendered to you without having to sign a piece of paper in advance to declare it?
Mr Clements: Yes.
Q617 Baroness McIntosh of Hudnall: I wanted to ask you whether you thought that the provisions of the general authority increased the likelihood of the abuse that you referred to earlier in your evidence as endemic, the abuse of people with incapacity. I think what you have said since has indicated that on the whole you do think it is likely to increase that risk. Would that be a fair assessment?
Mr Baker: It is impossible for us to say because so much of the evidence which we receive is anecdotal. The only areas of abuse that we come across are the ones where there is evidence that is actually brought to the lawyers. To say that the general authority will increase abuse, we cannot say for certain.
Q618 Baroness McIntosh of Hudnall: Well, can I put it to you slightly differently then because I think this perhaps is an issue that we should draw out a little bit. You have said in various ways this afternoon that you feel that the Bill is insufficiently protective of the rights of those who are being cared for whilst creating a general authority for those doing the caring. Would it be fair to say that if there were a balance between the general authority, on the one hand, and some protocol that increased the protection, on the other, that, firstly, you would welcome that and, secondly, that it would at least not increase the risk of abuse insofar as you can assess that risk?
Mr Baker: It would be difficult to see how it would increase the risk if the fraudulent abuse has already taken place. If there are safeguards in place to effectively counter that abuse for general authorities, in essence, it has got to be a good thing because it means that those may be coming to the actual attention of other people to be able to be dealt with, whereas at the moment the problem we have is that nobody has any idea of what abuse is taking place. It is all anecdotal. The Master of the Court of Protection will say, "We have no idea how many powers of attorney are even out there". With regard to the general authority, the problem I do have, however, is how will we know when somebody is acting under a general authority? We have no idea and there is no way of collating that information together.
Mr Clements: I think we do agree with what you were saying, that if there are these counterbalancing protections, then we think that the general authority would be a good thing and would not lead to further abuse and would apply to six million carers in the UK.
Chairman: Perhaps we can move on to Article 9.
Q619 Jim Dowd: Having spent quite a time going over "reasonable" and whatever that means, we come to another equally contentious word which is "appropriate". Is it appropriate for a non-medically qualified attorney to override the professional clinical judgment about medical treatment for the person on whose behalf they exercise that attorney or should they just be consulted by the clinician?
Mr Raymond: At the risk of giving what has been classed as a standard lawyer's answer, I would say sometimes yes. It is possible that the attorney will be sufficiently close to the patient to know of the patient's wishes rather better than the health professional. The problem with leaving such matters entirely with the healthcare professionals is that some of them do not necessarily look at what the patient wants, but they look at what they think is best and they do not necessarily take account of the patient sufficiently. I am trying to keep away from advance directives and things like that, but we are back, I think, really to the situation where the patient wants to move from their own home and I have had a number of cases of this. The doctor then says, "You've got to go into hospital", and the result of that is that there is a visit to A&E, all sorts of tests are done and in one case the patient died ten hours later after leaving home. Clearly in view of what was put on the death certificate, the patient was terminally ill and it should have been fairly clear that that was the case, but instead of taking account of what the patient wanted, which was to stay in his own home, the doctor insisted very forcefully in this particular case that the hospital visit was required and I think that sometimes the attorneys will have a better idea.
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 the 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 (?) 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 not ----
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 Value of the People White Paper it said that that would be a core service that any local authority should serve people with learning disabilities. In the Older People's National Standard, 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 work always!
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.
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 and there is the issue about jointly and severally and the potential for there to be two and there might be cases where it might be appropriate to have three or more, but you have said very clearly that this would be subject to there being adequate provision to resolving disputes and I can imagine circumstances in which people with power of attorney, particularly family members, one might say, those with the proper care of somebody who lacked capacity, 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 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.
Q640 Baroness McIntosh of Hudnall: So you would expect to see an appropriate model in a code of practice without the need for legislation?
Mr Clements: Yes.
Q641 Baroness McIntosh of Hudnall: You said you felt that the question about more than one person with lasting power was more complex. Can you just unpack that a bit?
Mr Clements: All I can say is that in preparing this, we had quite a large group of lawyers and the one who was very strong on this point is not present. I did not understand the point, but I am not an expert. It is something that we might deal with in written submissions.
Q642 Baroness Barker: This question is about the advocacy service and the status of them. I am professionally a very big fan of the advocacy service, but I wonder how it is possible to ensure that an advocacy service is not a sort of second-class service. I would like you, perhaps not now, to address for me what happens when a client has an advocate and it is a community care financing case and they are put against the local authority solicitor. What happens then? Also if you were to write to the Committee, I would like you to say a bit about the distinction between lawyers who are bound by client confidentiality and the advocacy role.
Mr Clements: I have written a very good book on the subject and I also run a postgraduate programme in Warwick dealing with this particular issue because there is no simple solution. I think what one has to remember is that confidentiality is not an absolute. It is an issue which can yield in certain situations basically a qualified right and although the presumption is in favour of confidentiality, it has to give way at certain stages. It is a hugely complicated issue in a fairly fast-moving area because of the Human Rights Act. I am very happy to send you a copy of my book!
Q643 Chairman: We touched on this earlier, the question of public law protection. The Law Society suggest that the Draft Bill should impose duties in local authorities and the NHS to investigate the cases of suspected abuse of adults who lack capacity. They further suggest that a Mental Health Commission should be created to oversee the Public Guardianship Office and the local authorities. If we were not persuaded to recommend that they should be introducing such measures how seriously do you think the value of the Bill would be impaired?
Mr Clements: We really strongly welcome this Bill. We would want this Bill to go forward. We give it all encouragement possible. We regret strongly that there is not a public protection provision in it. We are of the opinion that inevitably legislation would have to be brought in to deal with this. The High Court is now taking control of this and High Court proceedings are expensive. Although we believe the Bill would be less effective it would still be an extraordinary achievement.
Q644 Chairman: Moving on to public funding for legal advice and representation, how do you suggest that the new Court of Protection can be made accessible to people with limited financial means in the context of increasing and competing demands on the legal aid budget? Finally, an easy question: is there any way of estimating the costs of all this?
Mr Clements: The only idea we had on costs was to see what Scotland was spending on this matter and multiply it by whatever the appropriate figure should be. As I understand it, this Act has created no major case in Scottish courts so it has not been a nice little earner for lawyers, unfortunately, and therefore it may well be that the cost impact is not as much as one might have feared.
Q645 Chairman: If colleagues have no further questions, can I thank you very much for a very helpful session.
Ms Chapman: Thank you very much for inviting us.