Examination of Witness (Questions 492-499)|
14 OCTOBER 2003
Q492 Chairman: Mr Lush, thank you
very much for attending. Perhaps you would like to introduce yourself
and then we can proceed.
Mr Lush: I am Denzil Lush. I am
the Master of the Court of Protection. I have been in post for
seven and a half years, since April 1996.
Q493 Chairman: Thank you very much.
Your submission starts by saying at the very beginning that you
support the broad thrust of the draft Bill, but you end by saying
(paragraph 23) that the main issue before the Committee is whether
there is a need for this legislation in the first place. Have
you still any doubt about that need? Is not the key question whether,
if there is a need, the draft Bill meets it? Or do you think the
needs of people lacking capacity can be addressed other than through
Mr Lush: I think perhaps you might
have misunderstood what I was saying. I was saying at the end
of the submission that the most important question before you
is whether there is a need for this legislation in the first place.
I assume you have had some people lobbying and saying you do not
need it. If that is the first and most important question, the
second is whether you have got it right in terms of the balance
between autonomy and what we call protection. I have no doubt
in my own mind that there is a need for this legislation. I think
the current state of affairs particularly with regard to medical
decision-making powers is unsatisfactory. My court only has jurisdiction
over financial and property affairs. Just an hour ago I was finishing
a hearing that largely revolved around where somebody should live,
whether he should live in Blackwall or go and live in Birmingham.
We cannot decide for him, but the money that we hold indirectly
might have some implications on that.
Q494 Chairman: If there is somebody
on a Protection Order and you have the ultimate responsibility
under the Protection Order for finance but there are other decisions
which will be taken, not by the receiver, to do with health, welfare
and social care, you have no influence or responsibility for that
at all, have you?
Mr Lush: No, not really, only
the financial aspects.
Q495 Lord Rix: In paragraph 8 of
your submission you seem to suggest that someone who makes a series
of unwise decisions should be treated as a person who lacks capacity.
Could you possibly expand on this? I follow this with a question
about the presumption of capacity being set-aside. How would you
suggest that could be possible?
Mr Lush: I think one of the problems
here is the distinction between specific issue capacity and more
general capacity. In the Court of Protection we deal with the
big damages awards that come in for personal injury, criminal
negligence, criminal assaults and so on. I reckon it is about
350 of these a year and they are for large sums of money. There
have been three in the last 12 months that have produced formally
just short of half a billion pounds, £496 million-worth of
damages. Our client group tends to be young men in their late
20s who have had road traffic accidents and usually elderly women
of 85 plus, usually widowed, usually living in Bexhill or Christchurch
and so on at the other extreme. One of our particular cases was
where a young man had been awarded £2 million damages. He
came in with a wish list. He wanted to buy a five-bedroomed house
in north London for just over £1 million. Bear in mind that
he is a single man with no dependents, although I think he wanted
a chef to take one of the rooms. He wanted a villa in Turkey where
he had family connections, a villa in the US, a top of the range
limousine with a chauffeur, an executive box at Highbury Stadium
and a Rolex watch. I suggested to him that when a damages action
is completed the court usually says you can have a little bit
of a celebration, a little bit of a splash, so you can have the
Rolex watch for £5,000. He then went down to a jewellers
and chose it and the receiver paid the bill, but three days later
he had traded in the Rolex watch for £3,000 and used it to
fund a drag habit or something like that. What I am saying there
is that there would be a series of unwise decisions. He might
have the actual understanding or capacity to make each of those
decisions to buy the £1 million house in north London, but
there is a general lack of capacity rather than a specific issue.
We had a similar problem at the other end of the spectrum with
a lady who lived in Surrey who was taken to the cleaners by some
people who were selling cleaning materials, I think they were
called "Nottingham Knockers". She paid over the top
for dusters and cleaning materials and so on. She was then duped
by her gardener in whom she had a lot of confidence who managed
to take some £16,000 from her by various means and then she
was persuaded to give an enduring power of attorney in favour
of a lady who lived nearby who was married to a property developer.
She then sold the property to her husband, he developed it and
sold it at £600,000 profit for himself. These are the sort
of cases in which there is on-going incapacity. It is all very
well saying there are specific cases of capacity and the ability
to make particular contracts or decisions, but there are cases
where people have on-going incapacity or they would make a series
of judgments or decisions that were totally disastrous to them.
Q496 Lord Rix: How would you add
up the number of adverse decisions which could be made before
you actually could intervene, especially if there is a problem
of immediacy? Let us suppose a person was averse to the treatment
by the local dentist and they were suffering the most appalling
toothache but refused to go. Then they refused to go to the doctor
the next day because they did not like doctors and so it went
on and there were a series of health damaging decisions made which
really have to be remedied very quickly; how would you deal with
Mr Lush: I think one would probably
intervene, but I think really what has happened here is that the
Law Commission and later the people who drafted the Bill are using
that expressionit is an old expression that was used in
English lawas a means of saying the outcome of the decision
is not particularly important because we are going down the functional
capacity route. What I am saying is that that is fine for specific
functions, but there is acknowledged to be general incapacity,
not necessarily global and I do not think this is fully recognised
in the draft Bill.
Q497 Chairman: You mentioned the
figure of almost half a billion for the value of awards. We hear
of awards being made for £2 million or £5 million but
that is converted to an annual sum. I believe it is true that
most people do not live to collect the full amount as a result
of the injuries which are the reason for the award. Is that correct?
Mr Lush: I am not sure it is entirely
correct. There is no reliable research on the largest awards.
Basically the damages awards are calculated on the basis that
on the last day of that patient's life we should be in the process
of spending the last penny or the last pound. If there is a lot
that is left over then we have not done our job very well because
we have not provided them with the resources and accommodation
and the care that they deserve. If we run out of money when they
are ten years before death then we should be held responsible.
Q498 Baroness Fookes: In paragraphs
13 and 15 of your submission you have a list of check-list items.
Are you suggesting that they should replace the check-list in
the draft Bill or could some of them be devolved to the Code of
Practice? I am not quite clear.
Mr Lush: I think probably what
I was saying was that best interests covers an enormous range
of different activities. I am slightly nervous about the fact
that this draft Bill has limited the check-list that people have
to go through to just one or two particular requirements. What
I was looking for from all substitute decision-makers was a general
standard of good behaviour and conduct and a realisation of what
their obligations were to the person on whose behalf they are
acting. I would be quite happy to replace the best interests criteria
or if they are in a Code of Practice sobeit, but I would not feel
too happy about them being relegated to small print, if you are
with me. I think a lot of the problems are to do with the fact
that people do not really have their duties and obligations spelt
out and we need to know what is acceptable and what is not.
Q499 Baroness Fookes: It is difficult,
is it not, to have a totally comprehensive list if one is going
down that route?
Mr Lush: Quite right.