Memorandum submitted by District Judge
Gordon Ashton
THE FUTURE OF THE PUBLIC TRUST OFFICE
1. I am a District Judge who previously
practised as a solicitor in a community with a high proportion
of elderly residents. I make this submission as author of several
books concerning the law and mentally disabled adults, and as
parent of a child with severe learning disabilities.
THE QUINQUENNIAL
REVIEW
2. I am concerned that the proposal to break
up the Public Trust Office (PTO) relies upon an administrative
Review that is inaccurate and incomplete. The impression is gained
by anyone with experience in this field that the authors did not
recognise the true role of the PTO and that closure of this executive
agency (and the disposal of its valuable building) was a pre-determined
objective. There was no proper consultation with the people most
likely to be affected (ie interest groups, the legal profession
and the judiciary) and the Public Trustee retired early upon the
appointment of a "Director of Change". What was needed
was a "Director of Improvement".
BREAK-UP
OR IMPROVEMENT?
3. For many years the PTO has performed
badly due to underfunding and lack of recognition of its status,
and improvement is badly needed. But instead of contemplating
an injection of management and technology the Review assumes that
handing over the functions of the PTO to other bodies is the solution.
It is one thing to contract out functions to the private sector
and this might be justified in several respects—but it is
a different matter to transfer functions to another agency. There
is no evidence that the true cost will thereby be reduced or a
better service provided.
4. Some of the proposals are sensible (eg
involving the legal profession in receivership work) but others
demonstrate a lack of understanding of the work involved. For
example:
(a) requiring accounts to be submitted to
the Inland Revenue represents a breach of confidentiality with
human rights implications;
(b) "partnerships" with local authorities
overlook the conflict of interest that arises when the care planner/funder
has control of personal finances;
(c) involving the Benefits Agency also overlooks
financial conflicts—the first task of a receiver or attorney
is to ensure that state benefits are being duly claimed;
(d) transferring certain tasks to the Official
Solicitor's Office confuses court management with advocacy services.
5. At a time when experienced lawyers have
been highlighting the need to act in the best interests of incapacitated
people it is appalling to find that for administrative convenience
it is proposed to take us back to the dark ages in regard to a
lead agency that should be setting an example.
DENYING THE
NEED FOR
SERVICES
6. The Review goes further and suggests
on false premises that some of the services provided by the PTO
are not needed. As to the Court Funds Office, is it not incredible
that a body that manages large sums of money cannot operate efficiently
and make a profit? To justify closure it is proposed that (a)
payments into court cease and (b) small (under £10,000?)
funds be no longer held for children and patients. This has incensed
the judiciary who rely on these services and know from experience
the abuses that would arise if they were not available. A vital
part of the new Civil Procedure Rules cannot be abandoned for
administrative reasons. It is naively stated that the Senior Master
"maintains a personal oversight of awards to minors"
overlooking the fact that this is daily work for some 380 district
judges throughout the country.
VISITORS
7. The Review helpfully suggests an enhancement
in the role of visitors but confuses the different functions of
visiting patients and receivers. Further support for those who
take on receiverships would be welcome but those who offer guidance
must have suitable experience and attitudes. Relying on staff
at local Benefits Agency offices is simply not realistic.
PLANNING FOR
THE FUTURE
8. Despite Terms of Reference extending
to "the possible impact on the Agency of the Government's
conclusion to the response to the consultation paper Who Decides?"
there is no attempt to anticipate future administrative needs.
The Government has since indicated in Making Decisions
that it intends to implement many of the Law Commission's proposals
concerning decision making and mental incapacity. This will result
in an enlarged Court of Protection with a regional presence and
enhanced jurisdiction over personal as well as financial decisions.
There will then be a greater need for an administrative body to
support this specialist Court and the Government could find itself
embarrassed if it no longer has the PTO to turn to.
CONCLUSION
9. The objective of any reforms must be
to empower and protect people who lack mental capacity, but this
has been lost sight of. Responsibility for the affairs of these
vulnerable people cannot simply be transferred to any other agency
that can conveniently take it on but may lack the expertise or
interest. This would soon become neglected, low priority work.
10. Consultation with those who have knowledge
and experience of this field of work is essential before a potentially
valuable asset in the form of the PTO is lost. There needs to
be a discrete office with expertise in regard to the needs of
adults who lack capacity which can operate independently of other
agencies and fully support the development of the Court of Protection.
The inadequacies of this Review as outlined above are the best
possible illustration of this. Yet unless people like me speak
up it is likely without question to form the basis of the approach
adopted by the Director of Change. With the break up of the PTO
we would be in danger of throwing the baby out with the bath water!
District Judge Gordon Ashton
Preston Combined Court Centre
Preston, Lancashire
25 March 2000
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