Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

I beg to move amendment No. 150, in clause 42, page 23, line 19, after 'court', insert

'or is the donee of an enduring power of attorney or is an appointee appointed by the Secretary of State for Work and Pensions'.

Mr James Cran (Beverley & Holderness, Conservative)

With this it will be convenient to discuss the following amendments:

No. 151, in clause 42, page 23, line 20, leave out 'the person concerned' and insert

'or unduly influences for his own advantage the person concerned, and—

(b) include matters in relation to the financial affairs of the person who lacks capacity that are considered to fall outside the scope of the Theft Act 1968.'.

No. 59, in clause 42, page 23, line 20, after 'person', insert

'(or the interests of the person)'.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

I intend to speak to the amendments fairly briefly. The intention behind amendment No. 150 is to ensure that the scope of the clause, which brings a welcome new offence in respect of ill-treatment or neglect of a person without capacity, extends to those who are acting under an enduring power of attorney.

There is concern that someone acting solely in respect of a person's financial interests, and dealing with them, would not come under the scope of the clause as it is drafted, because it talks about someone having ''the care of'' the person. When someone has responsibility for the financial affairs of an individual who lacks capacity they undoubtedly have a significant impact on the care of the person, directly through decisions they are taking about the use of that person's resources if, for example, the person is a self-funding resident in a care home and their resources are being used because the state and social services are not involved in any way. There might not be an outside party monitoring such things.

If the individual with the enduring power of attorney chooses not to pay the personal expenses allowance to the person out of the moneys at their disposal, that is clearly neglect. Another more sinister form of neglect would be deliberately to choose the cheapest option for a care placement or the cheapest option for any self-funding care package and, as a result, leave the person receiving lower quality care, or a less attentive, or less appropriate, form of care. There is a particular category of person who is regarded as self-funding and is outside some of the assessment processes, and who, as a result, does not necessarily benefit from those services.

Amendment No. 151 would ensure that financial abuse is brought within the scope of the clause. It would give a clear signal that if, for example, relatives made decisions based on their interest in inheriting whatever was left at the end of the person's life, that would not fall outside the scope of the Bill. The Making Decisions Alliance and others made

representations to the Joint Committee and members of the Standing Committee about their concern that even if financial abuse were to be covered elsewhere in legislation—although it does not seem clearly to fall under the Theft Acts—there have been few prosecutions in such cases. Given that the Master of the Court of Protection told the Joint Committee that between 10 per cent. and 15 per cent. of EPA cases involved some form of abuse, it is important that we provide the very best legal powers under the clause.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

I am grateful to the hon. Gentleman. I am minded of a case that I have been dealing with, where the Master of the Court of Protection has been unable to bring a prosecution where one is needed, because the key witness is a lady of 99 who has lost capacity. Bringing such cases to court is difficult.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

That is why I tabled amendments to probe the Government and get them to explain how we can ensure that such cases reach court, that justice is seen to be done and, if P has lost financial resources as a result of such acts, they are recompensed and the resources are recovered. The resources should not have been allowed to be frittered away by someone abusing their rights under an enduring power of attorney.

The amendment is about ensuring that, in our move to the new LPA system, we do not inadvertently leave in place a second-class system of EPAs that does not give the same safeguards. We should not say that such a clear criminal offence cannot be made retrospective, because we are talking about acts that might occur in future with EPAs that are currently in place. It is not about retrospection, but about making provision for something that an EPA donor might do in future.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

The Committee will have noticed that my amendment, which is grouped with the hon. Gentleman's amendment, deals with the same sort of concerns. It is right for him to draw attention to the concerns that the Master of the Court of Protection put to the Joint Committee. There is already much distress, and many things have happened that should not have done. I hope that the problem will be reduced by the Bill. The issue for the Committee—and we should pause on it for a moment under the amendments—is whether it is necessary to create a criminal offence in order to do that.

Earlier, I discussed with colleagues, including lawyers, whether we need a separate criminal offence as set out in the clause to deal with cases of neglect. If physical damage is caused by neglect, whether wilful or not—and certainly if it involves ill treatment—there should be scope for a criminal procedure. All the Minister has to explain to the Committee is why that is not covered in existing law. The situation is probably not satisfactory, so I explicitly welcome the provision before us.

With financial affairs, there is something of a distinction, because one is not directly hurting someone's body; one is hurting them in their pocket. Ultimately, as the hon. Member for Sutton and Cheam (Mr. Burstow) has perfectly reasonably said, that has implications for their care. Indeed, it might do so

immediately if, for example, someone chose a cheap option rather than a better but more expensive option to save money so that they could inherit it. That is not acceptable. However, I have reservations about whether that should be written in statute as a criminal offence, but the Minister needs to take us through it.

In support of what the hon. Member for Sutton and Cheam says—I have an open debate in my own mind on the group of amendments—there is the issue of whether it is possible to damage someone more badly in their pocket than in their body. I am not sure whether, in the second case, the ill treatment or wilful neglect would be sufficiently serious to constitute damage. We had, in a different context, such a discussion on smacking. A person could be lightly but indisputably damaged physically by wilful neglect, but they could be completely taken out financially by total financial neglect. As the hon. Gentleman reminded the Committee, that would have physical consequences.

On the whole, my feeling—and, I anticipate, the Minister's—is that we should not muck about with the criminal law on the matter. However, to satisfy me and other Committee members, the Minister needs to say what powers there are to proceed against wilfully delinquent donees of powers of attorney as regards financial misconduct.

A separate point implicit in what the hon. Member for Sutton and Cheam said troubles me slightly. To turn back to the perspective of the attorney, if someone has an enduring power of attorney, there is obviously no question at the moment, although the hon. Gentleman seeks to change this, of them being brought within the negligence provisions, because this is a civil matter—there is a power—and there are redresses of which the Minister will remind us. However, because of how the clause is drafted, it is possible to imagine that an attorney under an LPA as set up under the Bill would be vulnerable to the criminal law in exactly the same situation.

In other words, there could be an anomaly, because we would be talking about financial malpractice that might give rise to physical consequences, depending on whether the power was drawn up under one piece of legislation or the other. Given that a serious criminal offence is involved, I am not sure that I am happy with that. Perhaps the Minister will discuss it.

Again, we are at the stage where people feel that there are concerns without necessarily wanting to dig in or make a huge fuss. However, it would be helpful if the Minister clarified where we have got to with the matter.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

First, I fully understand the principles that underlie all the amendments. It is of course right that we better protect those who lack capacity and better deter—we have not talked as much about that—people who would take advantage of those who lack capacity. It is a tribute to much of what we have been saying that we have talked about that positive duty, but it is now right that we think a bit about those with ulterior motives.

Offences aimed at tackling abuse of vulnerable adults require the offender to do a positive action. The clause, however, creates a new offence of ill treatment or wilful neglect of the person lacking capacity, which I hope shows that we in government take abuse of vulnerable adults very seriously.

The question asked by the hon. Member for Daventry means that I can demonstrate the need for the offence and put that on the record. I am glad to have this opportunity, which arises from the context of many cases that have come to the attention of the House and individual Members. We want to ensure that situations such as the tragic Longcare case, in which more than 50 adults with learning difficulties were abused at two care homes in south Buckinghamshire, never occur again. The new law provides people with somewhere to go, so we can ensure that such things never happen again.

We also want to ensure that hospitals do not just recklessly fail to provide food and care for some of the most vulnerable people in our society. We have heard from Committee members who are particularly concerned about that issue. Just leaving food at the end of a person's hospital bed without ensuring that they have the ability to eat it is unacceptable. We want to ensure that people know that. We want to prevent relatives from leaving people at home without providing them with the appropriate care and food. The failure to ensure that a bedridden person is turned to prevent them from getting terrible bedsores is unacceptable.

That is why this offence is aimed at capturing those individuals who are in a position of trust, care and power over people who are then ill treated or wilfully neglected. That could be a donee of a lasting power of attorney, a deputy appointed by the court or a person who has the care of someone who lacks capacity, such as a member of staff in a hospital or care home or a family member.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

I am looking at a representation I received from Age Concern—a one-off to me, I think—which states:

''It is a long time since I was a social worker for people with learning difficulties, but there were times when I came across families who 'controlled' the activities of their adult child, often with the best intentions of keeping them safe, by not allowing them to have any more than the smallest amount of pocket money.''

That is interesting, because there is an interaction between the financial and care sides.

Will the Minister comment—or reflect, if he cannot comment immediately—on whether this subject not only involves physical abuse such as welts on the body or starvation, but could involve psyching someone out and influencing them in a way that is quite improper and contrary to their interests, without there necessarily being any physical manifestation of that at all?

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

To that, I must say that we should see how the case law develops. This is a problematic area, because in terms of the criminal law the standard of proof will present a difficulty. The provision is particularly important because we have extended the

powers of deputies and LPAs to include health and welfare decisions. It is right that a donor or an LPA should come into its scope. The hon. Gentleman drew our attention to that.

We have also set the maximum sentence available for the offence at five years. Since the draft Bill was published, we have consulted with many organisations—the hon. Gentleman read a helpful extract from a representation by Age Concern—and we took this matter up because lots of them expressed serious concerns about it. Also, by increasing the sentence to five years we have made the offence arrestable, which means that the police can make an arrest without a warrant.

On amendment No. 150, attorneys, EPAs or benefits appointees can already be liable under the offence if they have the care of a person who lacks, or whom they reasonably believe to lack, capacity and they ill treat or wilfully neglect them. However, I recognise that not all EPAs will have that direct caring role, although they have an important power in holding money for someone who may be in care. I am minded to consider the possibility of extending the scope of the offence to include donees of an EPA. I agree with the hon. Gentleman that by extending the offence in this way we would assist with the concerns that pre-existing EPAs are open to abuse.

We have discussed the work of appointees under the Department for Work and Pensions. It is right to say that the appointee must complete a form that includes the declaration that they will spend any money received on behalf of, and in the interests of, the person named. If it is established that the appointee is not using the benefits in the person's interests, the Secretary of State can revoke the appointment. I assure hon. Members that we are actively working with the DWP and I am to meet the Under-Secretary of State for Work and Pensions, my hon. Friend the Member for Liverpool, Garston (Maria Eagle).

Again, I understand the principles behind amendment No. 151. If someone with the care of a person who lacks capacity fails to spend that person's funds on them, and as a direct result they are ill treated or wilfully neglected, the person with care may be liable under the criminal offence in the Bill. In addition to the criminal liabilities, an attorney or deputy has a number of civil duties in relation to the person who lacks capacity. We have already talked about civil liability and that fiduciary duty.

Finally, I shall deal with amendment No. 59. The offence focuses on actual ill treatment or neglect of the person who lacks capacity. It must be right that criminal liability of the scale set by this offence is incurred if there is real detriment to the person. However, as I have already stated, if the person who has the care of a person lacking capacity uses that person's funds for their own benefit and to the detriment of the other person, they may be guilty of theft. There may also be a number of civil duties for attorneys and deputies in relation to the person who lacks capacity.

I hope I have reassured hon. Members that we have put in place the right criminal safeguards for this

important area as a result of the many cases that we know about. Alongside that sits the civil context that we have discussed. People have a fiduciary duty that the court takes seriously and for which there is a lot of case law.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

That exchange has been helpful. I am particularly grateful to the Minister for his response on amendment No. 151 and the useful clarification on what the law will be if the clause is enacted. It was helpful to put that clearly on the record. Amendment No. 150 may be the second of my amendments that may be taken away to emerge in another form at another stage. I am grateful to him for taking on board that concern and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 42 ordered to stand part of the Bill.