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Baroness Ashton of Upholland: The issue about having a partial view is twofold. The first question is whether one collects information that gives a complete picture because one has all the information. The aspect that I was referring to was the collection of information without the benefit of considering the individual's best interests and the decisions that have been made in that context.
It is difficult to see how information on the number and types of decisions would provide what the noble Lord seeks; namely, information on whether people are being protected correctly, how the decisions are made and what are the results. My partiality is that I do not think that it will take the noble Lord to where he wants to go. For the Public Guardian, the kind of supervision that will be soughtfor example, of deputieswill relate to whether the person is appropriate and carrying out the risk assessment of the case. I have a list of things that I will send to the noble Lord, rather than taking up the Committee's time.
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The fundamental question is how we get information that will tell us, in general, about how decisions are applied, both in a clinical context and beyond that. We are looking to make sure that the necessary training and support is available through the National Patient Support Agency. There is an interesting potential in that that the noble Lord and I can perhaps explore. The second thing is the support available through the Office of the Public Guardian to deputies, in particular. As I said, I will indicate the kind of work that it will do.
I am not convinced of two things. One is that it needs to be in the Bill. The second is that, if one were using resources to address the issues about which the noble Lord is concerned, this is the way forward. I know how limited resources will inevitably be in the areawe will talk again on Report about the resources for advocacy, for exampleand I am not entirely convinced that we will achieve what the noble Lord wants by collecting the information in that form.
I think of the Abortion Act 1967 in this context. A careful reporting procedure was put in the Bill because of the concerns that people raised during its passage. In the past couple of years, there has been the example of that remarkable young Anglican clergywoman, Joanna Jepson, who has gone to court over the issue of cleft palate abortions. She was able to find out about it by a careful analysis of the reporting of all the 184,000 abortions that had occurred in the previous 12 months. By going through it and finding the grounds on which the abortions were permitted, she discovered that abortion on the ground of a cleft palate had taken place, I think, at 34 weeks' gestation and has been able to challenge that in the courts. More importantly, she has opened up a widespread and important debate about eugenics and whether such things should be permitted.
Whatever one's view of thatI would obviously side with her on the issueit is in the public interest to have transparency, so that we can know why decisions are made. If that does not require the collection of new information that is not being collected anywayI am happy to accept the point made by my noble friend about the use of computerised record-making in this contextit is not unreasonable for Parliament to say that it would like to be kept informed, as the years go by, about the trends and about the reasons why the legislation is being used in a particular manner.
The Deputy Chairman of Committees (Lord Elton): I must inform the Committee that the number of noble Lords voting "Not-content" in the second Division this afternoon was 163, not 162, as announced.
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The noble Earl said: In moving Amendment No. 179, I shall speak also to Amendment No. 180. As a preface to my remarks, I apologise for the slight typing error in Amendment No. 179, which, I think, was not the fault of the Public Bill Office.
It would be helpful to the Committee if the Minister were able to comment briefly on the provisions of the clause and, in particular, explain exactly the gap in the current criminal law that the new offence of ill treatment or neglect is aimed at filling. Currently, there are the offences of assault and battery, causing actual bodily harm or causing grievous bodily harm, for example, but I take it that the new offence runs wider than that type of case.
The mention of donees of lasting powers of attorney and court deputies suggests that we could be talking about much wider sorts of wrongful behaviour, such as depriving a person of the financial means of acquiring the necessities of living or failing to ensure that someone receives proper day-to-day care. Given the potential for relatives to make decisions that are aimed at their interests of inheritance, financial abuse does not always fall clearly within the Theft Act. Even when it does, prosecutions are rare. Even more rarely does the person who has been abused get financial redress or their money returned.
It would also be useful if the Minister could confirm my understanding that the new offence might capture a nurse or carer who failed to provide basic palliative care to a mentally incapacitated person who is terminally ill. If that is so, I would have thought that that would act as a further reassurance to those who fear otherwisethat even where a decision is taken to withhold or withdraw artificial nutrition and hydration from someone who is terminally ill, there can never be a valid reason for depriving anyone of basic physical care and failure to do so could be criminal.
Can the Minister say whether a local authority or a local government officer might render themselves liable under this clause if, for example, there were a local authority care home for adults with learning difficulties and the conditions at the home, including the standards of care, were allowed to deteriorate to a completely unacceptable state? There was a case of exactly that kind in my own area only a few years ago. In such a situation, would it be only the care home manager who would be deemed as having the care of the residents or would the liability extend further upwards?
We spoke in an earlier debate about appointees acting under the authority of the DWP. The Minister very helpfully referred to discussions within government which are designed to make sure that the spirit of the Bill
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and the substance of the codes of practice will be adopted by appointees who have responsibility for incapacitated people living on benefit. I should be glad if the Minister could say whether a neglectful appointee might be caught by the new offence if he failed to fulfil his obligations in a gross and serious way.
My final question relates to the relationship between this clause and Clauses 6 and 11. When are protective measures reasonable for restraint and when do such actions amount to ill-treatment? The Minister will obviously not be able to give me any sort of precise answer, but the question is a very real one in practice.
It seems to me that the code of practice will need to address this very difficult area. For example, temporary restraint in an emergency would almost certainly not amount to ill-treatment. Continuing measures that serve to confine an individual significantly for a length of time could be another matter. There may well be justification for such measures in certain cases, but a carer should not have the responsibility of taking such a decision unsupported. There should be a standard review mechanism to include a second opinion to protect both the patient and the carer in such situations. I am sure that Members of the Committee would find it helpful if the Minister could say something about this issue also. I beg to move.
Baroness Greengross: I support the points raised by the noble Earl. I should like to start by talking about "undue influence". The Master of the Court of Protection, when giving evidence to the Joint Committee, said that possibly 20 per cent of current EPAs are abused in some way. The issue of "undue influence" may arise when a person who lacks capacity can very easily be said to have given the attorney sums of money. There are many cases where people have received large sums in such ways, yet receipt of the money has not been overturned in any way because the law does not sufficiently cover the issue. If someone is found to have knowingly financially gained from the person's lack of capacity, surely that should count as a criminal offence.
Solicitors for the Elderlyan organisation that deals daily with people affected in this waysupports the amendment. Individuals can have appointees to collect state benefits, but they ought to be brought under the protection of legislation. SFE says that the Office of the Public Guardian could do one-off orders which are similar to the current short orders administered by the DWP.
As regards appointees, Age Concernof which I am a vice-presidentgets many reports directly from the public as well as from finance officers working in local authorities. These reports refer to appointees who are not spending the money on the person's behalf. There was recently a case where the appointee refused to hand over the benefit to pay for the care of the person. In that case, it ran to several thousand pounds.
Sometimes only very small sums are involved, in order to provide for personal expenses. Some people have only their rather nastily called "pocket money", amounting to about £18. Bearing in mind that that is all that some
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people get after paying for their care, it is vital that it is paid in full and not held back. A recent Age Concern case concerned a man in a care home who never had enough money to spend, for example, on toiletries. His wife, who was the appointee, was using the money for herself.
The knowledge that such actions could be considered a criminal offence might act as a deterrent to those who might not always appreciate that they are doing something wrong. They may think that it is okay, but we know that it is not. There is a case for making it a criminal offence.
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