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Amendment No. 195 is designed to safeguard those who lack capacity from others who become over-zealous and overstep the scope of their legal powers. Not only does it allow the person who lacks capacity, or indeed is alleged to lack capacity, legally to question a decision; it would allow an independent advocate to act. That would increase the responsibility of the public guardian so that there was a legal requirement for the patient and independent advocate to be heard.
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That is not stated clearly in Clause 56(1)(h). I am sure that the Minister will claim that that is covered in subsection (1)(h), but by making that specific we will ensure that nobody forgets the patient's rights.
I accept that some people who lack capacity will be unable to represent themselves; hence, the second part of my amendment. I believe that the more lacking in capacity a person is, the stronger is the need for an independent voice to be heard on his or her behalf. I have been specific in the use of the words "care and treatment" in the first part of the amendment, and "decision or decisions" in the second part.
My reasoning is that if a discussion is taking place about care and treatment, particularly the withdrawal of treatment, there need to be safeguards in place to ensure the court-appointed deputy or the donee of a lasting power of attorney, who will have the right to make the ultimate decision, has no vested interestfor example, no financial gain is to be made.
The Public Guardian will supervise and investigate complaints about two groups of people: those appointed as deputies by the Court of Protection and those whose applications for lasting power of attorney have been approved and registered by him. These people, and the people lacking capacity for whom they act, will in effect, be his client group.
The amendment would extend that client group. It would require the Public Guardian to deal with concerns and complaints raised by anyone who lacked capacity, or was alleged to lack it, or by an independent advocate. I understand the reasons behind the amendment. It would make the Public Guardian a focal point for those who lack capacity, someone to whom they could always turn. In many ways, I expect the Public Guardian to be seen as such a focal point. He will be a valuable source of information for anyone who has concerns about issues concerning people who lack capacity, whether raised by the person lacking capacity or anyone else on his behalf. Those concerns will undoubtedly cover a very wide range of subjects.
However, I would not expect the Public Guardian to deal directly with all concerns or complaints about someone who lacks capacity. For that reason I do not believe that the amendment works. If the Public Guardian did act in all cases, he would be trespassing on the responsibilities of others, frankly, with more expertise. I would expect him, or staff in his office, to direct the person to the appropriate authority or dispute resolution mechanism.
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So, for example, someone with concerns about a care home would be directed to the Commission for Social Care Inspection. The Public Guardian would not be involved in dealing with representations on such a matter, unless it involved how a lasting power of attorney or deputy was exercising his powers. Someone involved in a family row could be told about appropriate dispute resolution mechanisms, such as mediation, that they may wish to pursue, or the Court of Protection.
I turn to Amendment No. 196. The noble Lord seeks a number of further measures to protect donors of lasting powers of attorney. I shall take the two parts of Amendment No. 196 together. The first part proposes that the Public Guardian should monitor a random sample of lasting powers of attorney that are in use. The final part proposes that the Public Guardian should undertake an assessment of the need for future monitoring of a lasting power of attorney where no one is named by the donor to be notified of the lasting power of attorney's registration; or in other circumstances where monitoring is warranted in the opinion of the Public Guardian.
We should always remember that people choose their attorneys when they have capacity to do so. In most, if not all, cases they will choose a person they trust. A system of random sample monitoring could represent a significant intrusion on the affairs of those donors and donees who were selected as part of that sample. I am not convinced that it would be an effective deterrent for the small number of cases where a donee might act unscrupulously.
I understand the concern about cases where the donor of a lasting power of attorney does not nominate anyone to be notified of the registration of their lasting power of attorney. Of course, there might be perfectly good reasons why a person would choose not to notify anyone about the registration. They might prefer to keep their arrangements entirely private. There might be family difficulties. But to provide an extra safeguard in that situation and in response to a recommendation from the Joint Committee, the Bill already requires a second person to certify that the donor has capacity and is making the lasting power of attorney free from any fraud or undue pressure.
We think that that is an appropriate extra safeguard. I do not believe that the absence of people to notify should mark out a lasting power of attorney as different to others or be seen as a trigger for possible future monitoring.
We discussed bankruptcy and the POVA list at a previous Committee sitting. The Bill already states that someone who is bankrupt cannot be appointed to act as a financial lasting power of attorney. We have listened to concerns about how to ensure that the provision is not ignored. We have therefore decided that the Office of the Public Guardian will check to see
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whether prospective financial attorneys are bankrupt when a lasting power of attorney is registered. If the donee is bankrupt, the lasting power of attorney will be invalid.
I explained earlier in Committee that, as things stand, it would not be possible for the Public Guardian to check whether donees were on the POVA list. The forthcoming Bichard recommendations offer us an opportunity potentially to address that shortcoming. I can give a clear commitment that the Public Guardian will make a check on the bankruptcy register and that we are considering how a similar check on the POVA list might be possible. Given that relatively straightforward, I hope, but lengthy explanation, I hope that noble Lords will feel able to withdraw their amendments.
Lord Christopher: The way in which the Bill has been conducted is a remarkable testament to how this House can work. If anything can be seen as an example, it is this. I start with my noble friend downwards because that is the way it has been. I hope that she will reflect on which checks and balance are appropriate.
My point is not about these amendments per se but about what I see as a lacuna in the Bill; that is to say, those who need protection but will not get it under the Bill. I do not want to repeat myself, but we must have some provision for those who are uncomfortable with what they see happening, particularly regarding someone's financial affairs and to a lesser degree their physical well-beingI refer mostly to elderly peopleand who have nowhere to go to get something done about it. It may be a bank employee, a solicitor or stockbroker who says, "Something is wrong in the state of Denmark and we think that someone should look it".
There are other parts of the Bill where such a provision could feature but it is important that someone has the power to receive information, to make inquiries to see whether that information is valid and, if it is, to know what should be done about it. I hope that my noble friend can indicate that she will give the matter thought.
Baroness Ashton of Upholland: I am very grateful to my noble friend, although I think that things go upwards rather than downwards from me. My noble friend raised two points. First, do those worried about what is happening to somebody feel protected if they decide to whistle-blow? Secondly, to whom do they whistle-blow? I have already had the privilege of discussing the matter with my noble friend and I have committed to looking at those two issues.
I remember from our debates on the Children Bill, in which the noble Earl, Lord Howe, and I participated, every time we look at cases of tragedies of one kind or another involving the vulnerable, there are people who knew, thought or suspected that something was wrong. They either did not think that they should, or could, tell somebody else or did not know who to tell. The two things that I want to look at in this context are, first, ensuring that people feel that they can
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whistle-blow, and then getting to those who come across a suspicion of abuse or who are concerned the information that they need to do something about it. I am very happy to consider both issues.
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