103.Memorandum from Age Concern (MIB 729)
As a member of the Making Decisions
Alliance (MDA), Age Concern England fully endorses MDA's submission.
This separate submission underlines those concerns and raises
some additional points.
The publication of the Bill is welcomed,
although there are aspects on which clarification and further
consideration would be beneficial.
The Bill should begin with the presumption
against lack of capacity.
Supported decision-making should
be incorporated onto the face of the Bill; and advocacy also included.
The principle of the person's best
interests should also pay attention to their past and present
A vital stepdeciding that
someone lacks capacity and communicating that decisionis
missing from the Bill.
The parameters of Lasting Power of
Attorney (LPA) need clarifying, including how these are used at
times when the donor has regained capacity; the minimum qualifying
characteristics for LPAs and Deputies should be extended to include
criminal convictions and care offences.
Clear examples of what constitutes
"day-to-day care" will be needed to ensure the general
authority is not used to make substantial decisions.
Further checks are suggested in respect
of expenditure made by those exercising the general authority.
Legislation covering capacity and
incapacity should include appointeeship.
Clarification is needed on the general
relationship between the proposed Bill and the Data Protection
Act 1998, and the relationship between the draft Bill and the
No Secrets guidance.
Guidance will be needed for LPAs
and Court-appointed deputies, where more than one party is acting
for an individual.
Consideration should be given to
mechanisms for "lodging" advance decisions and advance
statements with health or social care bodies.
1. WAS THE
1.1 Age Concern England believes that the
consultation process preceding the draft Bill was adequate and
effective. We are especially mindful of the number of years over
which discussion has taken place since the publication by Age
Concern of its book, The Law and Vulnerable Elderly People
in 1986; the subsequent Law Commission inquiry, which reported
in 1995; the response from government since 1997; and the number
of helpful stakeholder meetings held with officials and the then
Minister, Rosie Winterton MP. One important outcome of this approach
is that opportunities to understand the complexities and subtleties
of the issues have resulted in a draft Bill whose principles are
warmly welcomed by Age Concern England.
2. ARE THE
2.1 The Bill is based on three key principles:
that everyone should first be presumed to have capacity to make
their own decisions; that a functional test of capacity should
be applied for all decisions at the point when they need to be
made; and that, where someone else makes a decision on behalf
of another (because capacity has been assessed as lacking in respect
of that particular decision), they must act in the best interests
of the other person.
2.2 These are vital safeguards for older
people and others. The pulling together of a variety of legal
frameworks within which individuals are able to make their own
decisions and have others act on their behalf, the extension of
decision-making beyond matters of property and financial affairs,
and the creation of a new Court of Protection with enhanced duties
and responsibilities, are also appropriate.
3. DOES THE
3.1 Age Concern England believes there are
some changes from which the draft Bill would benefit. We believe
that the Bill itself should begin with the presumption against
lack of capacity. This could be easily achieved by renumbering
existing Clause 3 as Clause 1. We feel that this would send an
important message to everyone affected by the proposed changes,
that the starting point is always that the person has capacity.
3.2 Clause 2 (3) is one of the most important
objectives of the Bill, we believe, although we would ask that
it be amended to read "all practicable steps to support him
to do so". This would create the notion of supported decision-making
on the face of the Bill, an essential element in our view if professional
and lay audiences are fully to comprehend how individuals whose
capacity may fluctuate, or who may be able to take some decisions
but not others, are able to arrive at their particular decisions.
3.3 Clause 2 (3) also allows for the possibility
of advocacy support, but it is a great disappointment that this
is not specifically mentioned in the Bill. Reliance on the Mental
Health Bill in this respect would, we believe, be inappropriate
since access to independent advocacy is only proposed for those
who have been compulsorily detained. As such it would not, for
example, be relevant to the hundreds of thousands of older adults
who ordinarily live in care homes. Access to independent advocacy
will also prove particularly important in respect of the use of
the general authority (Clause 6) to ensure that the checks and
balances envisaged by the proposed strengthened Court of Protection
are in place at all levels and at all stages of the decision-making
process. As legislation entitling people with disabilities to
advocacy already exists on the statute books (Disabled Persons
(Services, Consultation and Representation) Act 1986), this draft
Bill provides an ideal way for it to be enacted.
3.4 We believe that the principle of the
person's best interests (Clause 4) would be further enhanced by
the addition to "as to his past and present wishes and feelings"
(Clause 4(2)(c)(i)) of the phrase "and behaviours".
We feel this would be of great help in matters of culture, sexuality
and religion (and other beliefs); and also recognise that much
decision-making is naturally of a progressive or cumulative nature
in which behaviour as well as feelings is an important aspect.
3.5 The principle and the process whereby
someone has decided another person lacks capacity in respect of
any decision would benefit from some further reflection. At present,
it appears there is a gap in the draft Bill between how to decide
that someone lacks capacity, and the need to then act in their
best intereststhis missing element concerns how the decision
is made and communicated.
3.6 One aspect to the draft Bill that is
unclear concerns its remit in terms of the aspects of life about
which decisions can be made in the various frameworks described.
Clauses 17 and 18 set out the powers relating to personal welfare,
and to property and financial affairs but appear as "stand-alone"
powers except in relation to the restrictions on these areas established
in Clause 20 for Court-appointed deputies. Clauses 23-25 set out
the parameters relating to the following of a person's advance
decisions(s); and Clause 26 sets out specific exclusions relating
to decisions about family and other relationships. Clearer links
need to be made between Clauses 17 and 18 and the role of Lasting
Powers of Attorney (LPAs); and between those clauses creating
the powers of LPAs, Court-appointed deputies and the general authority,
and Clauses 17 and 18.
3.7 We would also appreciate clarification
as to whether proposals under the personal welfare LPA will mean
that donors retain, at times when they have capacity, decision-making
over only health matters, or whether this will also include broader
personal welfare matters.
3.8 In respect of the general authority,
there will need to be very clear examples of what does, and does
not, constitute an everyday form of care or a decision about day-to-day
care. There are particular concerns that without clear guidance,
substantial decisions (such as moving permanently to live in a
care home) may be taken under the general authority. Information
will be needed (especially by carers) in order to make clear the
parameters to, and responsibilities of, acting under the general
authority. In addition, if expenditure is regularly incurred for
the same form of care, we also feel that those exercising the
general authority should be obliged to bring this to the attention
of the proposed Court of Protection.
4. ARE THE
4.1 One of the most important aspects of
the draft Bill lies in the proposal to establish a Lasting Power
of Attorney (LPA), to replace existing Enduring Power of Attorney
(EPA) arrangements. This is particularly welcome as it overcomes
current difficulties whereby whilst an EPA may make financial
decisions they are unable to take welfare decisions on behalf
of the other party: in reality, for many older people, decisions
about health and welfare (such as moving to live in a care home)
are inextricably linked with decisions about spending money (such
as paying care home fees).
4.2 However, there are other common arrangements
that involve the handling of individual older people's state benefits,
through the offices of the Department for Work and Pensions (DWP),
particularly that of appointees. Detailed comments on this point
are included in the submission from MDA. There are particular
concerns for older people that, for those whose only income is
via benefits (ie those pensioners who do not have an occupational
pension) appointees have control over the whole income if the
person has been assessed, on the current "one-off" occasion
by DWP staff, as being mentally incapable of managing their financial
affairs. This system does not accord with the principles of the
draft Bill. Nor does it give older people protection as there
are few checks made by the DWP on appointees.
4.3 Age Concern believes that any legislation
covering capacity and incapacity should extend to appointeeship.
At the very least, appointees should be required to act within
the principles of the draft Bill with regards to decisions about
capacity and acting in the person's best interests, and these
changes reflected within social security legislation. It would
also need to be made clear how the appointee role would stand
in relation to the general authority. In our view, appointeeship
would best be absorbed by Court-appointed deputies using a similar
process to the current "short order" which is used when
a person's finances are such that full receivership is not required.
4.4 Given that, on the financial side, the
proposed LPA arrangements mean that the donee could act on the
donor's behalf even if they have capacity, further consideration
needs to be given to how banks and other financial institutions
would be certain whether a donee was acting when someone lacked
capacity or not. This is important as it reflects the practical
application of one of the LPA's most attractive attributes, namely
that it is not assumed that once an LPA has been registered that
the person would permanently lack all decision-making capacity
from that point onwards (with current EPA arrangements, registration
has tended always to mark the point beyond which permanent and
total incapacity is assumed). This matter will require some further
thought to preserve, in practice, this important principle, whilst
at the same time ensuring that banking practice is able to go
some way to protecting individuals against financial abuse.
4.5 For holders of both LPAs, and Court-appointed
deputies, we believe that the same minimum qualifying characteristics
should apply, but that these should be extended beyond bankruptcy,
to include criminal convictions and care offences.
4.6 Any Codes of Practice and guidance should
both be followed as a requirement. Much of the detail of the proposalsfor
example, checklists for "best interests", and definitions
of terms such as "substantial risk of significant harm"are
to be contained in such Codes and associated guidance. We believe
that Section 30 (7) (b) be amended so that these Codes must be
taken into account by the court.
4.7 The relationship between those exercising
the general authority and their access to an individual's money
would benefit from further strengthening of checks and balances.
We suggest that Section 31 contains an additional sub-clause of
undue influence in relation to the general authority and the handing
over of monies for purchases made. We also suggest a financial
limit be set under the general authority (whether for single or
cumulative reimbursements), above which anyone using that authority
in that way would be required to notify the Court of Protection.
4.8 We note that, in the regulatory impact
document, mention is made of an increase in legal help. We believe
that legal aid should be made available where the disputes that
are going to the Court are significant to that individual, such
as a dispute about whether the person lacks capacity to make an
important life-changing decision. Some parameters could be drawn
up for these situations. For others seeking the Court's decision
legal aid should also be available, on the usual means-tested
5. MIGHT LESSONS
5.1 One of the changes in Scotland, brought
about through the Adults with Incapacity (Scotland) Act 2000,
concerns authorisation for carers and other individuals (but not
social work staff) to obtain authority to access the funds of
an adult in order to meet living expenses. Authority is granted
by the Public Guardian and can last for up to three years at the
first application (although this may become indefinite when renewed).
It involves the Public Guardian authorising how much money may
be transferred from the adult's account to a designated account,
and gives a certificate to whoever is allowed to open and access
the designated account. It can be used for day-to-day living expenses
and for paying regular bills. Age Concern England suggests this
system be further considered as one way of dealing with concerns
about those who, under the proposed general authority, would be
regularly accessing another's finances to deal with daily expenses.
6. ARE THERE
6.1 It should be made clear what powers
LPAs and Court-appointed deputies will have to access any relevant
information to assist them in their decision making, particularly
copies of care plans and health records; and the general relationship
between the proposed Bill and the Data Protection Act 1998.
6.2 The relationship between the draft Bill
and the Protection of Vulnerable Adults (PoVA) guidance (as set
out in No Secrets) to local authorities needs to be made clear.
In particular, we would welcome a strong relationship between
the Court of Protection and local authorities in terms of sharing
concerns about individuals believed to be at risk of abuse.
6.3 We understand that, under the draft
Bill, it will be possible for at least two people separately to
hold, for the same individual, an LPA covering health and welfare
decisions and an LPA covering property and financial affairs (this
also applies to Court-appointed deputies). Clear guidance will
be needed, to both LPAs and Court-appointed deputies, as to how
they should work together where necessary in such situations.
6.4 We believe consideration should be given
for mechanisms for "lodging" or otherwise recording
advance decisions and advance statements with health or social
care bodies (for example, with a person's GP records). This should
help both to militate against individuals seeking to hide the
existence of others' advance decisions, and assist in considerations
of "best interests" by having available advance statements.
6.5 We believe that Court-appointed deputies
should be required to follow the same requirements set out for
LPA donees with regards to the limits on their abilities to ignore
advance decisions to refuse treatment.
6.6 Finally, we understand there may be
some concerns that the draft Bill does not include matters of
decision-making as it relates to taking part in research. Should
the Joint Committee decide to move on this point, we would ask
that a distinction be drawn between taking part in medical or
clinical research, and that of user and carer consultation and
involvement through which individuals' personal views and experiences