Clause 42 - Ill-treatment or neglect
Mental Capacity Bill
2:45 pm
Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton and 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.