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Baroness Ashton of Upholland: We touched on the Leslie Burke case at the beginning of the debate. I must say again that the purpose of the Bill is to empower and protect; it is never about denying people the care that they need, whether it be basic care or the treatment that would help to support them.
As the noble Baroness will know, the issues for the Department of Health arising from the Leslie Burke case have related to the clarification of what is meant by the broad judgment. I have made it as clear as possible that there is no question that I, anyone else in the Government or anyone else in this House would wish to see people denied food and water or basic care, if that were appropriate. However, it must also be clear that treatment must be appropriate and in someone's best interests.
When the Minister is reflecting on it, will she consider two things? The first is the existing level of abuse of powers of attorney. When Master Lush came to talk to the Joint Committee, he talked about abuse in about 20 per cent of cases. That is a huge proportion. We can draw a contrast with the way in which people consider wills. People witness wills and see that as a serious thing. They know what to do, if they think that a will is not being observed.
Many noble Lords, not least the noble Lord, Lord Christopher, and the noble Baroness, Lady Greengross, who spoke on an earlier amendment, are driving at the fact that there is a need to make people aware that powers of attorney are of that order. If people are aware that things are going wrong, they need to know where to go to and what they can do.
I understand what the Minister says about them being private arrangements, but we cannot let it go on, if we suspect that abuse is at that level. I hope that, when the Minister reflects on my amendment, she incorporates the points so eloquently put by the noble Lord, Lord Christopher.
Baroness Ashton of Upholland: It is very important. Master Lush has been to talk to us about it. We are thinking carefully about how we deal with the issues.
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As the noble Baroness rightly says, it is about enabling people to realise the importance of the matter and to take the opportunity, if they are concerned, to act.
Earl Howe: Once again, it has been a good short debate, and I am grateful to the Minister for her helpful reply. I found the intervention by the noble Lord, Lord Christopher, very welcome. I agreed entirely with what he said. If I may say so, he put it extremely well.
The grave concerns that existthe noble Baroness, Lady Barker, just referred to the abuse of enduring powers of attorneyshould lead all of us to view the Bill as an opportunity to add in safeguards against the risk of abuse. That is where we are all coming from. We agree that there should be safeguards; it is just a question of how we arrive at what is most useful and practicable. I will be extremely glad if my earlier proposals on communication between the Public Guardian and attorneys have set the Minister off on a productive train of thought.
Doubtless, we will return to these matters at a later stage. I am sure that we will want to read carefully what the Minister had to say before we come back with further proposals. For now, it is appropriate for me to beg leave to withdraw the amendment.
The noble Lord said: I hope that Members of the Committee will forgive me if I spend more time than is normal in opening a single amendment. I have two reasons for craving your indulgence in this respect.
First, what I shall have to say about Amendment No. 196A in relation to the Public Guardianship Office applies with equal weight to the other amendments that I propose to move; those are, Amendments Nos. 196B to 196F. I promise Members of the Committee that I shall be correspondingly telegraphic when I come to introducing the individual amendments.
The second reason why I would like to have a little time in opening is because, in order to illustrate the scene I want to set about the Public Guardianship Office, I need to refer to a recent Parliamentary Ombudsman report.
The administrative and statutory background to the office is worth recalling. Under the Mental Health Act 1983, the function of the Court of Protection, which is, as Members of the Committee know, an office of the Supreme Court, is to protect and manage the property and affairs of those who, through mental disorder, are incapable of managing those matters for themselves. The 1983 Act provides for the court to appoint a receiver and for the receiver to do any such thing in
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relation to the property and affairs of the patientnow referred to as the clientas the court may authorise.
The PGO is the administrative arm of the court. On 1 April 2001, it took over the mental health functions that were previously undertaken by the PTO, which also included the work of the Courts Funds Office and Trust Division. Where the court is unable to appoint a suitable receiver, it can appoint the chief executive of the PGO to act as a receiver of last resort. In those circumstances, the clients' affairs are assigned to a case worker in PGO's receivership division. The case worker acts under the delegated authority of the court and has day-to-day responsibility for the client.
Politically, the PGO is accountable to the Lord Chancellor's Department for the services that it supplies to its clients. On 29 March 2001, the then noble and learned Lord the Lord Chancellor made a speech forecasting the new responsibilities that the PGO would have when it gained its legal authority two days later on 1 April 2001. In paragraph 3 of the statement made by the noble and learned Lord, Lord Irvine, he said:
"The Public Guardianship Office is committed to making a difference to its clients. It will not be remote: it will work in partnership with Receivers, and others, to protect and manage the financial affairs of some of the most vulnerable members of society. The Public Guardianship Office will deliver better customer service, and will be more accessible to its clients. For Receivers, this will mean a vastly improved advice and information system, available locally wherever possiblea service which supports as well as monitors. It will be a personalised service, designed to meet the needs of individuals. The staff of the Public Guardianship Office will be fully trained, effectively led and managed, and equipped with the tools to do a difficult job in a modern environment".
"This Framework Document sets the framework in which the Public Guardianship Office will operate . . . it also sets out the Public Guardianship Office's responsibility to all those who use its services and its ultimate accountability to me".
As your Lordships are well aware, the Public Guardianship Office is responsible for the affairs and for the care of some of the most vulnerable members of our society. Moreover, the money the PGO is handling is either private trust money or state benefit money to which the clients are entitled.
The extent to which the PGO was failing to meet the standards that might be expected of a public authority charged with these tasks was first brought to my attention towards the end of 2001 by Lord Iliffe, a former Member of your Lordships' House. He had been in correspondence for some time with successive chief executives of the PGO over the managementor should I say mismanagementof the affairs of his first cousin and next-of-kin, Miss Elizabeth Laurence, for whom the PGO acted as official receiver. Over the next few months I followed the course of this correspondence with a rapidly growing sense of disbelief.
On 9 May 2002 an opportunity arose to draw the attention of your Lordships' House to the likelihood that the PGO was experiencing severe organisational
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deficiencies. This was the occasion of the debate in your Lordships' House on the Court of Protection (Enduring Powers of Attorney) (Amendment) Rules 2002, prayed against by the noble Baroness, Lady Greengross.
In that debate I asked a number of questions, to which I either did not get an answer at all or to which I had a holding letter and a further delay of over a year. I did eventually receive some information about the financial and control accounting procedures of the PGOI shall make further references to that later onbut I received no answers at all to my questions about the manner in which the Lord Chancellor's Department ensures proper accountability to it by the PGO.
I put a number of questions to the noble Baroness the Minister at the time. I asked what resources in the Lord Chancellor's Department are devoted to supervising the PGO. I asked will there be a specific unit in the Lord Chancellor's Department, bearing in mind the undertakings given by the noble and learned Lord, Lord Irvine, on 29 March, to fulfil the heavy burden the noble and learned Lord had placed upon himself. I asked how regularly would the Lord Chancellor want to examine the systems that were supposed to be in place either to monitor the PGO's own receiverships or the conduct of outside receiverships. I asked how did the Lord Chancellor's Department assess the quality of care that was provided to the clients. To none of these questions did I receive a reply.
Meanwhile, earlier in that year, Lord Iliffe had managed, after a raft of correspondence, to persuade the PGO to agree to an independent audit of Miss Laurence's affairs; but by the beginning of 2003 it was clear that even that was not getting close to the root of the problem.
Accordingly, on 20 February 2003, through the good offices of Mr Robert Key, Miss Laurence's MP, a complaint was made to the Parliamentary Ombudsman that the PGO had failed properly to manage the affairs of Miss Laurence. In particular, it was asked why the PGO had failed to conduct a full audit of Miss Laurence's accounts. It was asked to investigate why a payment of £10,928.51 made from her trust fund had never reached her accounts. It was asked to investigate why a payment of £6,731.01, made by her trust fund in December 2000, had taken until April 2002 to reach her account. It was asked to investigate why other payments to her account had been delayed. It was asked to investigate why payments totalling £1,425 had been wrongly withdrawn from her account. It was asked to investigate why there had been a delay in refunding her receivership fee of £1,750. It was asked to investigate why unnecessary restrictions had been placed on the quality of the life that she was able to enjoy. More generally, it was asked to consider whether the PGO had failed to address issues relating to its internal control and accounting procedures. Finally, it was asked to consider whether the PGO had displayed gross negligence in dealing with Lord Iliffe's correspondence.
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The ombudsman's report was published last November and has upheld every single one of Lord Iliffe's complaints in the most uncompromising and trenchant terms. Fortunately, the professional analysis to which the receivership accounts were subjected did not disclose fraud, only gross negligence. I turn to page 13, paragraph 35, of the report to draw your Lordships' attention to the observation made on this aspect of the investigation. Although fraud had not been identified, the ombudsman would nevertheless,
"represents a significant systemic failing which could cause those trying to monitor the accounts considerable frustration and inconvenience. What is perhaps even more alarming is the fact that the two occasions when this occurred in this case were some ten years apart, highlighting that this problem had not been identified over an unacceptably long period of time, which in turn suggests a totally unacceptable level of scrutiny of all such accounts throughout that time. Given that PGO were looking after the affairs of people amongst the most vulnerable in the country, that exceptionally poor administration merits the very strongest criticism".
Lord Iliffe was deeply concerned when the senior caseworker told him that the delay in recrediting certain moneys to Miss Laurence's account had, in part, been caused by the fact that the location of the money had had to be detected before Miss Laurence could be reimbursed. At page 20, paragraph 47, of the report, the ombudsman comments:
A further cause of Lord Iliffe's concern was the failure of the PGO to take account of Miss Laurence's needs. In particular, the tone and content of one letter sent by the PGO to Miss Laurence's carer, were described at page 23, paragraph 53, of the ombudsman's report as,
"Whilst I appreciate that the PGO as Receiver has to be assured that funds are properly managed, they also need to have regard to the fact that carers have a very demanding role which is often both physically and mentally exhausting. A carer plays a highly significant role in the client's life and it seems to me that they should be accorded appropriate respect, and dealings with them should be handled with due sensitivity. It also seemed likely to me that many of those family members to whom PGO have transferred Receiverships would also be carers, and would probably need some level of support in carrying out their Receivership duties. I therefore ask the Chief Executive whether
I am pleased to say that, as a result of all these events, culminating in the ombudsman's report, all the problems that Miss Laurence faced with respect to her financial affairs now appear to have been resolved; and it is not just Miss Laurence who has benefited from this. Indeed Miss Laurence's case, through the efforts made on her behalf by Lord Iliffe, has led to many other clients who would not otherwise have benefited having their affairs rearranged in a manner which has improved their conditions of care.
On page 9, paragraph 27, we learn that, as a consequence of what I might refer to as the Miss Laurence case, the PGO have carried out reviews of all their clients. The papers show that in April 2003 the chief executive of the PGO reported that 1,060 external cases had been reviewed, as a result of which 97 instances of cash losses had been identified, which together amounted to about £100,000. This money was misallocated as a result of deficient financial systems and general mismanagement.
I am delighted to say that, through the reforms which the PGO has been undertaking as a consequence of Miss Laurence's case, there has also been a dramatic overhaul by the agency of its own internal accounting procedures. At page 13, paragraph 36, the ombudsman comments:
"It is quite clear from the papers I have seen that the major reviews that PGO initiated in May 2002 onwards were in direct response to the concerns raised by Lord Iliffe in relation to Miss Laurence's case. Further, the decision to extend the quality audit to those cases which had already been transferred from PGO's receivership to that of a panel or family member was also in response to Lord Iliffe's own suggestion that that would be the most appropriate way forward".
"PGO had accordingly commissioned a further external review of its cashier's branch by consultants to assess the extent of the problems highlighted . . . That review had been completed on 26 March 2003. One of its conclusions was that it confirmed there had been 'a long-term systemic failure to manage [client] accounts in line with modern professional standards. Client accounts have never been audited'. A number of action points were noted which, it was stated, 'should finally bring the Receivership Branch into good order, and leave it fit for purpose for the future'. To take those action points forward, PGO formed a Receivership Project Group comprising representatives from Internal Assurance division, Performance Monitoring Unit, Court Funds Office, Official Solicitor and Public Trustee and Finance Division to take 'an integrated approach to rectifying and monitoring the management of receivership cases and receivership cashiers' . . . The Receivership project had a wide scope, including a management review of the regulation and statutory requirements, definition of procedures and controls, the reconfiguration of the accounting system, reconciliation of bank accounts, preparation of stewardship accounts for the previous two years, specification of the staff training required, and following through on the action points arising from the quality review".
It is clear that very substantial changes for the better have taken place in the PGO. What remains for us to deal with is the system of democratic accountability of
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the PGO to the Lord Chancellor's Department; in other words, the political dimension. I have already said that the PGO deals with the most vulnerable people in our society. Quality of care to those clients is the yardstick by which we measure the achievement of the PGO.
It seems to me that, previously, the PGO has had a dual role. On the one hand, it has itself acted as a trustee for a large number of clients. On the other hand, it has acted as a regulator of private trustees who have looked after clients' money. So it has been both an operator and a regulator. The amendments which we have tabled are intended to ensure that the system of political accountability is just as secure as we hope the new system of financial accountability will prove.
Amendment No. 196A would ensure that someone other than the PGO is able to scrutinise the annual accounts of a client. Under the current system, the PGO produces client accounts on an annual basis. All such accounts are confidential to the Court of Protection and cannot be released to other parties without the court's permission. The ombudsman's report raises serious concerns regarding the management of clients' finances. In the case of Miss Laurence, as we have heard, a number of payments from her trust fund to the PGO effectively disappeared.
The catalogue of errors that have been vividly illustrated by the report of the Parliamentary Ombudsman is sufficient illustration of the need for change in this area. If Lord Iliffe or indeed the next of kin of any client whose money turned out to be mismanaged had had an annual report of the accounts of the client, that report would have highlighted such errors and allowed them to be called to the attention of the PGO with much greater ease. I beg to move.
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