Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

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 this legislation?

  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 that?

  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 expression—it is an old expression that was used in English law—as 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.

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