Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

Examination of Witnesses (Questions 40-48)



  Q40  Huw Irranca-Davies: In your expert opinion what would be the practical implications of going forward currently with the general authority as it is and then trying to impose restrictions? How would that be tested? Could that be tested effectively? Would it work?

  Mr Ward: I am sure you would have lots of litigation for at least a decade. I am not sure that of itself would be something that you would want to do knowingly.

  Q41  Huw Irranca-Davies: Are you convinced of that?

  Mr Ward: Pretty sure. In some ways if there was not lots of litigation I would be even more worried because people would just be going ahead and using the general authority in all sorts of situations, appropriate or inappropriate, without challenge. I would emphasise part of our provision, which is a coded provision, a comprehensive but not exclusive provision, includes investigatory provisions. The Office of the Public Guardian in Scotland is carrying out investigations in any situation where it is suggested to him that the financial interests of an adult are at risk and it is not just related to particular procedures situated where a power of attorney is in place, local authorities have an equivalent duty where welfare is at risk and you get joint investigations. We have these investigatory powers and they can be matched up with the public guardians and all forms of authority under our legislation which have been granted which are not just guardianship and intervention on the simpler forms which David has described.

  Mr McClements: The other concern I would have is that in relation to general authority, and I do not think Adrian has touched on it, is the difficulty you might have between individuals, it is almost presumed there is one carer. If there are different carers expressing different views and indicating they have the general authority it is just a recipe for conflict in what is already a difficult situation for them and things will be made much more difficult.

  Q42  Huw Irranca-Davies: Clause such as Subsection (2), "the general authority will be `trumped' by a decision of a donee of a lasting powers of attorney or of a deputy", that is not sufficient to calm your fears?

  Mr McClements: I do not think so because that presumes that someone has a power of attorney. We are talking about somebody who is subject to general authority, then it could be two or three individuals that are suggesting "I have general authority". I come back to the point I made about financial matters, I cannot see how that is going to work in practice. Where this is coming from in terms of provision of any form of care is at one level one can understand where it is coming from in terms of time to meet the needs of carers but I think our concern is that in all this that it is in the best interests of the draft Bill to benefit, as we have in our act, is the adult or the person, that it is their interests, whether it be in terms of benefit or best interest. The general authority is coming from the other standpoint, to make it easier for carers. I have grave doubts about that in its present form. One other point I just want to make is that I think there is a distinct lack of any definition of care. That again means that the whole concept of general authority is open to great confusion.

  Q43  Chairman: Under your system is there a risk you will see over-prescriptive powers to avoid going back to court each time an order is needed? What authority do carers have without a guardianship order? Are carers without a guardianship order acting without the power to do so under your system?

  Mr Ward: If an applicant is coming along seeking powers which cannot be justified by reference to the general principle they will not be granted. One does find oneself in discussion in an application sometimes just how far to take the powers. One tends to work on the principle of powers reasonably expected to be needed. If you go beyond that covering possible situation the court will be unlikely to grant them. You can always go back for variation of the powers, the procedure for that is simpler. If you are varying financial powers or you are varying welfare powers you are proceeding under a variation procedure. If you seek to have financial guardianship extended to include welfare powers do you have to begin at the beginning and go through the court.

  Q44  Chairman: If there is no guardianship order what is the authority that the carers are working under?

  Mr Ward: They have no statutory authority. This is an issue which has arisen.

  Q45  Chairman: They would have under our Bill.

  Mr Ward: They would have under your Bill, yes. First of all in medical matters our doctrine of necessity survives and unimpaired. Generally our Act does not take away any principle which exists in law already. The principle of necessity, certainly in medical matters, may cover us and it may extend to some non-medical matters. The strong pressure under our legislation is that if you perceive that you are going to need to exercise powers then, get proper authority to do so. In financial matters you can do that very simply. In medical matters a doctor can do it very simply: it requires one simple certificate which involves no more than the matters under good practice you would have to address anyway.

  Q46  Huw Irranca-Davies: Can I ask another question which is to do with the use of force in two aspects, one is the restriction or misuse of force and the restriction of liberty from an individual's point of view, but also from the carer's point of view, that there is a reasonableness about the way which we approach the way they use force. I am thinking particularly of dementia where there is a safety risk to the individual that is being cared for. It could be argued that in that situation that the carer should be able to use a certain amount of restrictive behaviour to avoid getting into a perilous situation. How does your legislation deal with that?

  Mr Ward: I think our general law covers both situations. If I see you stepping off a pavement in front of a bus and grab you and pull you out of the way I am not assaulting you but if I did that in any other situation it would be. That is the level at which we have cover, and only at that level, not in our legislation.

  Q47  Baroness Fookes: Could I ask about what I would describe as casual care, in a sense the good neighbour living next door who may do things for somebody but probably not think of getting authority in your system, what happens to that person who may go out and do shopping and have to pay for it and then maybe take the money from the person?

  Mr Ward: We do have a principle in Scots law that long predates our Act and has not been set aside by the Act which is a the form of agency of necessity and that still applies. The difficulty is that one does not have the authority, so if you then go along to the bank with a bank book they may say, "what authority do you have to do this?"

  Q48  Baroness Fookes: I was thinking about something more casual, shopping and taking the money out of the purse, that kind of situation, not to unlock a bank account.

  Mr Ward: This principle covers that but there is an element of risk and the risk is to the person that is doing that too. Under our system it is not very difficult, you do not have to go and see a lawyer if you want to access somebody's bank account to pay their bills for them and meet their financial needs. You get a form from the public guardian, he will give you any amount of help, he will even let you do it electronically, he will talk you through it over the telephone. You need a certificate from a doctor and you need a certificate from somebody who knows you and the person, you send them off and you will get a certificate of authority.

  Chairman: We have a problem over time which is not of your making it is because of the vagaries of Parliamentary voting. I would like to end the oral questioning now. You have seen the questions, would you be kind enough to answer the remaining questions for us in writing. It is not your fault at all, but we have your other colleagues who I think wish to get home tonight. It would be best if we draw this part of the deliberations to a conclusion. You are our first witnesses and you have been enormously helpful. A number of your answers will give us some food for thought. Thank you very much indeed.

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