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Baroness Masham of Ilton: The noble Earl referred to the need for basic physical care. Perhaps the Minister saw the recent "Dispatches" programme on BBC4. If she did—the noble Lord, Lord Warner, did—she will have seen a really shocking state of basic physical care and neglect in two national health hospitals. When I saw the programme I said to myself, "These patients have capacity, although they are vulnerable. Heaven help those who have no capacity. What on earth would happen to them?".

Will the Department of Health conduct an inquiry on this situation? The situation cannot continue. We have an opportunity now to get something into the Bill that will protect everyone who is vulnerable.

Baroness Ashton of Upholland: I am afraid that I did not see the programme—I was probably here. I recognise the issue that the noble Baroness has raised. I cannot speak for the Department of Health, but the whole purpose behind the Bill is to empower and protect some of the most vulnerable people in our society. As we continue in Committee and go on to further stages, I hope that that will become more apparent, particularly as the noble Baroness has a great interest in these issues. That is what these debates are for.

I fully understand what noble Lords are seeking to achieve with the amendments and I shall try to deal with all the points that have been raised. I think there is a general acceptance of, and greeting for, the clause because it creates a new offence of ill-treatment or wilful neglect. The noble Earl asked why it was important that we should have done that. We are trying to capture individuals who are in a position of trust, care and power over people and who then abuse them while they are in their care. This also applies to donees of lasting powers of attorney and court appointed deputies. It is a specific offence designed to do that.

The noble Earl will not be surprised to learn that I cannot give him chapter and verse of what is missing within other areas of criminal law to require this new offence but, at present, offences that are aimed at tackling the abuse of vulnerable adults require the perpetrator to perform some kind of positive action, if I can call it that; there is no offence of wilful neglect involving an omission or act as there is for children. So this clause makes a provision for wilful neglect, the part that is missing. Why it should be missing I do not know, but that is the part that has not been there
 
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before and that is why the inclusion of this offence is very important. It demonstrates, not least, that we are taking the abuse of vulnerable adults very seriously, something which noble Lords have indicated is very important.

The offence is in part aimed at neglect and tackling abuses that stem from a failure to act. At Report stage in another place we added an amendment to extend the scope of the offence to cover enduring powers of attorney. While this was welcomed, it is clear that noble Lords are still concerned that because DWP appointees are handling only financial matters they might not be considered as having "care of the person" and, as such, would fall outside the scope of the offence. Again, we made clear during the Report stage in the other place that, in the majority of cases, the appointee will have the care of the person and will therefore be covered by the offence.

Officials from my department have been meeting with colleagues from the DWP and are now working together to ensure that the guidance from the Department for Work and Pensions is consistent with the Bill and with the code of practice. Ministers from the Department for Work and Pensions have readily agreed to review their appointment process in the light of the Bill. In particular, where it is appropriate and practical, they will adopt the codes of practice as guidance to those assessing capacity. Guidance will also adopt the best interests principle.

Because the appointeeship system is an integral part of the system for paying state benefit, it is appropriate of course that responsibility for appointees should remain with the Department for Work and Pensions. The department acknowledges that lack of post-appointment monitoring is a potential weakness in the system. Therefore it has agreed to look at the options for introducing a monitoring system. There is no easy solution and the resources necessary to monitor more than half a million appointees will need to be considered. The department will look at reviews, targeted monitoring and working with local authorities. All of the ways in which the system can be monitored will be examined. In the mean time, the department will act quickly to revoke appointments where allegations of mismanagement are made.

Noble Lords will be aware that benefit appointees operate in Scotland as well as in England and in Wales and that we already have different maximum sentences for conviction on indictment. To make any further changes would increase the inconsistencies between the two pieces of legislation and, therefore, departmental Ministers will be looking at their own legislation in this context. I hope that the current work I have described in terms of reviewing appointeeships will give comfort to noble Lords who are concerned to ensure that this issue is dealt with properly.

I can assure the noble Earl, Lord Howe, that palliative care is covered. The example given by the noble Earl is absolutely right. Care home neglect is also covered. One example would be the Longacre situation, which the noble Earl will remember well. Who is liable, in a sense, is a question of who has care
 
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of the person, and the courts will determine that. It could be the care home manager, the individual carer or both. The courts will make the decision about who, in its view, had care of the person.

Amendment No. 180 makes it an offence unduly to influence a person for one's own advantage in order to deprive them of their property. I understand the principle behind the amendment. Where a person who has the care of a person who lacks capacity essentially uses that person's funds for his own benefit he will, of course, be guilty of theft. It is a wide-ranging offence which includes the misappropriation of funds and property where there is an intention permanently to deprive.

On the other hand, if a person has care of an individual, or has a lasting power of attorney, an enduring power of attorney or is a deputy and he pressurises the individual lacking capacity to spend those funds on him rather than on food or vital services such as heating and intends to cause the individual to be ill-treated or wilfully neglected, he may well be liable under this offence.

In addition, attorneys or deputies have a number of civil duties in relation to the person who lacks capacity, as well as the duty to act in the person's best interest. An agent—that is, a deputy or the holder of a lasting power of attorney or enduring power of attorney—will also have a fiduciary duty towards the individual. That means that the agent must not benefit himself but must benefit the principal. An attorney or deputy who fails to act in a person's best interests could be removed by the Court of Protection. Any breach of a fiduciary duty could lead to the attorney or deputy being sued.

I hope that that covers the questions asked by noble Lords and that I have covered the issues around theft raised by the noble Baroness, Lady Greengross. It is necessary to have evidence in order to prosecute. There is a role for the public guardian in investigating complaints, taking cases to court to remove a lasting power of attorney or deputy, and referring cases to the police or Crown Prosecution Service where appropriate.

The noble Earl, Lord Howe, raised the issue of restraint. I am reminded of the provisions in the early part of the Bill and the need to make decisions in the least restrictive manner. They cover all kinds of restrictions. However, I shall think about what the noble Earl has said and write to him. I hope that the explanations I have given have satisfactorily covered his main points and that he is able to withdraw his amendment.

8.15 p.m.

Earl Howe: This has been a useful debate. I am grateful to the Minister for so fully covering all the points that have been raised. I am grateful also to noble Lords for their support.

The main point to have arisen from the Minister's remarks is that this clause is designed to encompass all forms of neglect, not only direct physical neglect but also indirect neglect where an attorney or a deputy causes the
 
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incapacitated person to suffer neglect. The fiduciary capacity of the attorney or deputy is very important in this context. That is an extremely helpful clarification.

I am grateful to the Minister for her remarks on appointees. They did slightly go over ground that we trod in earlier amendments, but they were extremely helpful. The question of the dividing line between legitimate restraint and illegitimate abuse is extremely difficult. I am glad that the Minister is going to give it further thought. It is a point that a number of quarters have raised with me. We clearly do not want carers who feel nervous or uncertain about what they can do to protect the wellbeing of somebody without laying themselves open to a charge of ill-treatment. It is a question that is not so very different from, "How long is a piece of string?". Nevertheless, there ought to be reassurances for carers who are sometimes placed in very difficult situations. Perhaps, as I suggested earlier, a second opinion might be sought in certain problematic circumstances. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 180 not moved.]

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