Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

Examination of Witnesses (Questions 620-639)


15 OCTOBER 2003

  Q620  Jim Dowd: Is there a potential conflict for the same attorney dealing with both financial and medical matters and if there is, how can that be minimised?

  Mr Raymond: We have discussed this and we believe that there is the potential for conflict, yes of course, but I think we are in a situation where the patient needs to have health warnings similar to those on the existing enduring powers of attorney to highlight the potential conflict and if they make the decision that they want to appoint a spouse, a partner, a child or somebody in whom they have an enormous amount of trust to be the person to make the decision and they are satisfied in their own mind that when they are able to make that decision the individual will not exploit the situation to their own ends, then that is the free choice that they will make at that stage.

  Q621  Jim Dowd: But would the role of the attorney in medical matters be radically different from the way the close family members behave, those fortunate enough to have them, while they are undergoing serious treatment? Would that be radically different from the way they are treated currently?

  Mr Raymond: It may be that the attorney would make different decisions from the close family members because the attorney would be the person, if we are talking about the attorney dealing with healthcare matters, in whom the donor has the most trust, the most faith that they would carry out the wishes.

  Q622  Chairman: Is it the case at the moment that if you get an enduring power of attorney, that is much better than having a protection order because it is easy to get, it is more flexible and the protection order requires a statement of assets? Would that still be the case with the lasting power of attorney as in this Bill? Would that be a better option if you can achieve it than a protection order?

  Mr Baker: It is all to do with capacity because the Court of Protection receivership order would not actually be put in place unless the person had lost capacity.

  Q623  Chairman: Exactly.

  Mr Baker: But they could not enter into an enduring power of attorney unless they had the capacity to enter into it.

  Q624  Chairman: Sure, but there are cases of course of dementia where at an early stage you could get an enduring power of attorney when later it becomes a Protection Order in the case of the Court of Protection. Now, if you did that, would you then have to go for a lasting power of attorney or a protection order as the dementia got worse?

  Mr Baker: No, that is not my understanding of how it would work. It would work as a registered and enduring power of attorney.

  Q625  Baroness Knight of Collingtree: Is it not the case now that this particular point put to you by Mr Dowd that non-medically qualified attorneys can override a professional clinical judgment about medical treatment be rather complicated by the fact that the medical profession themselves now call providing food and/or liquid medical treatment? Has that not made it rather more difficult?

  Mr Clements: We tend to fall silent when the issue comes back to advance directives and rights to life. I think it has been complicated by that decision and I think we would agree.

  Q626  Baroness Knight of Collingtree: Because there is no force of law about that. It is just something that the doctors have decided at this time, is it not?

  Mr Clements: It is something that has been questioned in certain human rights circles, yes.

  Q627  Chairman: Are you saying that the Law Society agree with the BMA on their reading of this?

  Mr Clements: No, I am saying that I probably should have kept quiet! It is a very difficult area and what I am saying is what I think is echoing what has been said, which is that the BMA statement on that has attracted some questions in certain human rights circles.

  Q628  Chairman: Would you not express a view as the Law Society?

  Mr Clements: Not as the Law Society, no. The Law Society has no view.

  Laura Moffatt: I am just slightly worried about the concept of just feeding and giving someone fluids being treated as a treatment when in fact of course it is the method by which that fluid or nutrition is administered which is the part which they consider the treatment, and it is very invasive, either a gastrocolotomy or a tube into a vein, so that is it, not the administration of fluid or food and I think we need to be very clear about that.

  Q629  Baroness Knight of Collingtree: The fact is I did want to make this very clear for the record, that it is not a question merely of the artificial giving of food which is called medical treatment, but it is everything now to do with giving food, and that is a serious matter. Would the draft Bill be actually improved by the inclusion of an explicit definition of "basic care" and that definition, provided you feel that that should happen, what should it encompass?

  Mr Clements: We do not think that the Bill would be improved by a further clarification of that.

  Baroness Knight of Collingtree: So there is no need to answer the second one.

  Chairman: We can move on.

  Q630  Baroness Fookes: Court-appointed deputies are given considerable powers under the Bill. Are you happy that there are sufficient checks upon those powers?

  Mr Baker: This is a question which falls to me because this is what I do all the time, I am a professional receiver. I think there are sufficient checks because the court has an absolute power to effectively order deputies to provide records at any stage. In relation to the financial aspects, there is also the provision for security which, as you will be well aware, bites for monies to be paid back immediately into a patient's estate should there be any difficulties whatsoever. What I am unclear about at this stage is how it will work in terms of any welfare decisions in terms of the checks and how that is being taken forward. I have to say at this stage that without having more examples of how this will work, it is very, very difficult for us to give you an accurate response to that because we are not sure how the court will check upon these decisions and we would envisage that in a lot of cases most of the decisions may be made on a one-off basis by going back to the court for an actual definition of what they want the deputy to do.

  Q631  Baroness Fookes: Is this something where you will give it further consideration for our benefit or not—

  Mr Baker: I can certainly try, but it is a very difficult area.

  Q632  Baroness Fookes: —or how you might see it work?

  Mr Baker: I am certainly prepared to do that.

  Q633  Baroness Fookes: I think that might be more helpful if we could have in mind what you think would be helpful. Could I then turn to the question of the Court of Protection itself in its new format under the Bill. Will those who have mental incapacity be able to access it sufficiently?

  Mr Baker: Well, there are two aspects to the access. There is the access of actually physically being able to get to court and also the accessibility of being able to have access to justice. In terms of the accessibility to court, it was a rather retrograde step moving the Court of Protection to Archway where it is impossible virtually to get into the building and the suggestion that they make arrangements for the Court of Protection to sit around the country I am intrigued with, but I think there is an importance that we do not dilute the expertise which is within the Court of Protection and the skills which the judges and officers have. When you talk to other people in other jurisdictions, they are most impressed that the Court of Protection have all the mental incapacity dealings with finance under one roof. Naturally, if this Bill is taken forward, we will have more incapacity dealings under one roof and I think what we have got to be looking at is a better system for people to be able to actually have physical access to the court. At the moment the court sits in Preston and in London, but there is no reason whatsoever why video-conferencing should not be used more from whatever court, magistrates' court or whatever obviously provided it is in place. The other thing which is quite feasible is that there is no reason why in certain circumstances the court should not sit elsewhere other than a court building. We have actually had a hearing in our own office in Sheffield where the Master has come up and it was a sensible thing to do because it is very important that the patient has their points of view put across, so I think this is something which I do not perceive will be a difficulty, provided people are able to work with it.

  Q634  Baroness Fookes: Some of our previous witnesses have been very keen on the development of advocacy. Have you any views on that?

  Mr Baker: This is the second point of the accessibility and this is something which my colleague Luke Clements knows far more about than I do.

  Mr Clements: It is all very well to talk about courts which are accessible or which have sound loops or have lifts, but for every one person with mental capacity difficulties to get to court, there are probably 100,000 who have no access because the mere concept of stepping into a solicitor's office is intimidating, as it is for all of us, and the reality is that people with mental capacity difficulties never take the first step. There have really only been about four cases in the European Court of Human Rights on this issue of the tens of thousands of cases they have looked at. It shows that people with mental capacity problems do not have access at the very first stage. We see the issue of advocacy as utterly fundamental. I have already spoken about the fact that to take instructions from somebody with capacity difficulties may take hours and hours and hours and the Legal Aid Board or whatever it is called now, the Legal Services Commission, is not going to pay me a high rate to do that, so people with capacity difficulties have got to have advocates who will enable them to access this. There may be financial problems with that, but the Government, in its legislation, has effectively created an obligation to have national advocacy. In the Valuing People White Paper it said that that it would be a core service that every local authority should serve people with learning disabilities. In the Older People's National Standards, the idea is to develop older people's advocacy rights. The Mental Health Bill will create a statutory right, if it emerges in the same form, to advocacy. In children's proceedings there is now a minimum for advocacy and of course we now have the Patient Advocacy Liaison Service which has been run by the CABs in large measure throughout the country providing an advocacy service through the NHS process, so we have at least five separate developments of advocacy and we would say that that is actually fundamental to enabling people with capacity difficulties to access to justice.

  Q635  Baroness Fookes: This of course could be very expensive. I may now be being cynical, but government is often the ends, but not the means.

  Mr Clements: Well, Parliament wills both of these things hopefully.

  Q636  Chairman: It does not always work like that!

  Mr Clements: I think the point we are saying is that the apparatus for advocacy is already there. I think the implications of Article 6 of the European Convention and now the Human Rights Act are that there will have to be advocacy. Article 6 says that you must have access to justice and the court has said in certain cases that that could be legal aid, but we would say that much more fundamentally serious than to have legal aid, although lawyers would benefit from that, is to have advocacy. Advocacy exists throughout the country, it is a growing movement and there are, as I said, at least five government initiatives on this and the Government has put some significant money into some aspects of it, I think some £3.5 million into it in Valuing People.

  Q637  Baroness McIntosh of Hudnall: This does flow from the discussion we were just having. You said in your written submission that you were puzzled about the way that the lasting powers of attorney provisions were set up there is the issue about jointly and severally and the potential for there to be two or even three or more attorneys, but you have said very clearly that this would be subject to there being adequate provision to resolving disputes. I can imagine circumstances in which disputes between people with power of attorney, particularly family members, one might say, might be quite hard to resolve. Do you have a sense of what would be the appropriate or indeed adequate arrangements for dispute resolution in that sort of area, particularly informal mechanisms rather than those that ultimately wind up in the courts and can you talk a little about how your obviously very fervent belief in advocacy as part of this overall process fits into that because, on the face of it, it looks as if there might be a role for an advocacy procedure in resolving disputes of that kind?

  Mr Clements: Perhaps I can deal with the very simple bit rather than the complex issue of lasting powers of attorney and more than one appointee. I am not suggesting that advocacy is the cure, particularly where you are dealing with two people who have capacity who are arguing about who is in a position to make decisions dealing with an incapacitated person. I am not sure advocacy would be for them, but there are community mediation schemes, I think, in relation to housing disputes, anti-social behaviour and those sorts of things which are being developed by local authorities and there are mechanisms which could perhaps deal with that.

  Q638  Baroness McIntosh of Hudnall: So you are saying that there are models for conflict resolution which could be easily moved into this area?

  Mr Clements: Yes.

  Q639  Baroness McIntosh of Hudnall: But in some circumstances—

  Mr Clements: I think as the public law, administrative law system has grown enormously and the judicial reviews have grown beyond expectations, we are now all looking for alternative dispute mechanisms and the court itself has been quite strong on that. We warmly welcome solving things locally and as soon as possible and there are models, although we cannot say in this situation that there is this solution, whereas we think with advocacy there probably is with the problems that learning disabled people have.

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