Memorandum submitted by Catherine Fehler,
Partner, Hamlins (Solicitors)
THE FUTURE OF THE PUBLIC TRUST OFFICE
1. As a solicitor in private practice with
particular experience of the Receivership Division ("RD")
of the Public Trust Office ("PTO") I am pleased to note
this review of the future of the PTO. I am aware that the Law
Society has also prepared evidence for the Committee.
2. Whilst my particular expertise of the
Court of Protection ("COP") and PTO derives from matters
falling within the RD, I have also been invited onto the Receivers
Forum at the PTO. These submissions will focus primarily on my
experience regarding the RD and the proposals envisaged in the
Quinquennial Review ("QQR").
3. The RD currently handles approximately
2,700 patients/clients where the Receiver is the Public Trustee.
The RD will experience significant change if the proposals recommended
in the QQR are implemented. However for the RD there has been
no official consultation of these proposals. My involvement, whilst
welcomed by the PTO, was initiated by me. I am not aware of any
other professionals involved in RD cases who have volunteered
to participate in the change process. This may be because they
are unaware of it.
4. The interests of the patients/clients
must be paramount now and in the future. It is a statutory requirement
for the COP and PTO to have regard first of all to the requirements
of the patients/clients.
5. The RD patients/clients have received
no official notification of proposed changes which may dramatically
affect their lives. At present it is not known how they could
be so advised given the current uncertainty as to what changes
are likely to be effected. A consultative process should be undertaken
to ensure sufficient consideration is provided for all relevant
parties, including patients/clients, carers and professional advisers,
to co-operate in contributing to the reform procedures in the
best interests of the patients/clients.
6. RD cases may be complex and may involve
individuals who are capable (given the different tests on capacity)
of making or contributing to some of the decisions affecting their
own lives. This should be encouraged.
7. The QQR proposal is that most RD functions
be dealt with by an accredited panel of solicitors. The PTO Change
Directorate favours a wider base including also accountants and
charitable bodies. This may involve decisions being taken on behalf
of vulnerable people by the private sector.
8. The constitution and supervision of this
panel should be given careful consideration. There should also
be a pro-active and independent regulator. The experience with
Enduring Powers of Attorney confirms that abuse can arise, and
similar principles apply with RD cases.
9. It is understood that the Change Directorate
is considering block contracting out of existing RD cases. There
must be proper consideration given as to the costs of this exercise
including the costs to be borne by the patients/clients.
10. If RD cases are to be transferred to
the accredited panel, a New Receiver Order will be made in each
case, subject to the best interests of the patient/client. Each
case will need to be considered separately. Complex cases may
raise particular concerns.
11. There is still a need for a public Receiver
of last resort. The Change Directorate appears to favour such
Receiver excluding complex cases, however these may be the very
matters which most benefit from the assistance, independence and
force of a Government agency.
12. With the accredited panel, there may
be a public law duty to be considered. The Government will also
have considered its legal obligations, particularly in light of
Human Rights legislation to be implemented shortly.
13. Whilst reform of the PTO is appropriate,
and in some respects to be applauded, given the fact that the
patients/clients are so vulnerable, substantive policy decisions
should be made after an appropriate consultative process. This
will assist in ensuring that change is not piecemeal or protracted.
14. The Lord Chancellor has indicated that
he will make an announcement at Easter. It is to be hoped that
the consultative process which will follow that announcement may
address the policy issues as well as the practical manifestations
of the same.
15. Further, this Government has proposed
fundamental mental health legislative reform. That will inevitably
involve upheaval to the administrative support system for the
same. Proposals for listening to the patients/client where appropriate,
do not appear mirrored in the QQR. This may be a particular concern
with cases which are either complex or of low financial value.
16. It may be preferable to defer implementation
of QQR recommendations until after legislative reform has been
effected. Otherwise patients/clients who are particularly sensitive
to change may face further administrative upheaval when future
change is implemented.
17. The present system allows case workers
at the PTO to liaise closely with patients/clients, without concern
as to time and cost, to the benefit of those patients/clients.
This also allows the patients/clients to express their views and
wishes. Patients/clients will often form positive relationships
beneficial to their disposition with their case worker.
18. In complex or contentious cases there
can be an additional benefit derived from the close working relationship
between the PTO and the COP.
19. Therefore a full consultative process
should be effected with all relevant interested parties prior
to decisions on policy being made as the same are likely to have
a fundamental impact on the lives of thousands of very vulnerable
individuals.
20. An injection of resources both financial
and in terms of personnel to the RD (presently lacking in both)
which is a discrete division within the PTO, would enable the
RD to implement many of the technological reforms required for
greater future efficiency.
21. I am concerned by the proposals as to
how they may affect costs incurred by patients/clients within
the RD; the RD charges on a percentage basis of income which excludes
eg royalty income. Musicians currently benefit. It is unlikely
that comparative panel fees will be as favourable to patients/clients.
22. Finally, this vulnerable sector should
be adequately protected in conformity with the spirit of the proposed
legislative changes.
3 April 2000
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