Memorandum submitted by Mrs A B Macfarlane,
former Master of the Court of Protection (1982-1995)
THE FUTURE OF THE PUBLIC TRUST OFFICE
1. This submission relates only to the Mental
Health Act functions of the Public Trust Office (PTO), except
where otherwise indicated.
2. The public has an ambivalent attitude
to the PTO. It values the security it gives their relatives but
hates the fees it charges and the requirement to keep accounts.
However, the Chant review recognises that there remains a need
to protect the finances of people (called in this submission,
as in the Mental Health Act 1983, "patients") who are
incapable, because of mental disorder, of managing their own affairs.
3. Statutory responsibility for the financial
affairs of patients lies with the Court of Protection (CoP), which
acts through receivers and which needs staff, at present provided
by the PTO, to implement its orders.
4. The Public Trustee is the receiver of
last resort; had General Pinochet stayed in England and become
a patient of the CoP (since there was some reason to believe that
he was mentally incapable of managing his affairs), the Public
Trustee could well have been appointed as his receiver in the
likely event of dispute.
5. The management and financial shortcomings
of the PTO do need to be addressed urgently and effectively but
this is already in hand and should not mean its break-up.
6. As well as the proposals for the future
of the PTO, there are two initiatives under discussion at present,
(1) "Making Decisions," the Lord Chancellor's proposals
following the Law Commission's recommendations for reform and
(2) the review by Professor Richardson for the Department of Health
of the Mental Health Act 1983. These proposals need to be agreed
by Parliament before the shape of the problem can clearly be seen
and before the future of the PTO can sensibly be decided. For
example, in "Making Decisions" there is a recommendation
for regionalisation of the CoP; more importantly, there is the
proposal to extend the jurisdiction to cover health and welfare
decisions. If these and other proposals are accepted it is likely
that more staff will be needed by the CoP and the obvious source
of those staff would be the experienced pool of caseworkers in
the PTO.
7. As to the review's findings in paragraph
20:
(a) Reducing work levels increases the risks
to patients and the opportunity for financial abuse.
(b) Shifting responsibility to other offices
risks the loss of expertise.
(c) Concentrating the activities of the PTO
into regulation, contract management, quality assurance and advisory
duties assumes wrongly that there are bodies competent and willing
to take on receivership for poor patients as well as the wealthy.
(d) The fee-charging regime could certainly
be improved but that in itself would not justify the breaking
up of the PTO.
8. Rather than disperse the staff throughout
other departments, it would be better to use them to fulfil the
original aim of the PTO, namely to achieve economies by provision
of central services, such as investment, property and taxation
advice.
9. Decisions on the future of the PTO should
not be led by the desire to sell off the Public Trustee building
(originally paid for from beneficiaries' fees) for commercial
development.
10. The financial problems of patients range
from needing to invest large sums effectively to maximising state
benefits and staving off creditors. The risk of financial abuse
arises throughout but the risk of neglect is higher for the poorer
patients. Having said that, there is a large number of cases where
family members and carers sacrifice their own lives by giving
devoted, selfless care to their vulnerable relatives. They should
be supported in this by the public service.
11. The EPA Act took a step towards the
private administration of patients' finances and has proved a
mixed blessing. From speaking and answering questions at meetings
all over the country, it is clear to me that many people are misunderstanding
and misusing the EPA system. At present that system covers only
proxy financial decision-making but if EPAs are replaced by Continuing
Powers of Attorney (as proposed in "Making Decisions"),
to cover health and welfare decision as well, a great deal more
supervision and direction will be needed from the CoP, acting
through staff under its control.
12. Much greater use could be made of technology
to improve communications between the office and the consumers
of its services (patients, receivers, local authorities, nursing
and residential homes and so on). The CoP's primary duty (and
hence the PTO's) is to the patients, as laid down in the 1983
Act as amended, but subject to that, better communications to
make the service more responsive would answer many of the criticisms
in the Chant review. Similarly, better technology could remedy
the problems of preparation and checking of receivers' accounts
and of failures of communication within the PTO, as well as the
PTO's own accounting procedures. The use of the internet is spreading
so rapidly that it could soon become a most useful means of informing
and helping receivers and carers, and in turn of cutting the costs
of administration. Greater use of technology has turned the Land
Registry round in a comparatively few years.
13. As regards visiting, at present the
CoP, following the Mental Health Act 1983, authorises visits to
patients by general visitors for financial reasons. If the law
changed and mental health charities were to provide volunteer
visitors, it would be difficult to keep control and achieve consistent
standards. The introduction of local authorities and the Benefits
Agency as visitors could easily lead to conflicts of interest,
and could well be intimidating for patients and receivers (as
could a requirement for submission of receivers' accounts through
the Inland Revenue). There is also a serious risk of breaching
the Human Rights Act 1998. The internet could have a significant
effect in removing, in some cases, the need for visits to patients.
Mrs A B Macfarlane
March 2000
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