Examination of Witnesses (Questions 40-48)|
10 SEPTEMBER 2003
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
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
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
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
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
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.