Mental Capacity Bill

– in the House of Lords at 7:30 pm on 8th February 2005.

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Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs) 7:30 pm, 8th February 2005

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Baroness Ashton of Upholland.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Elton) in the Chair.]

Clause 41 [Codes of practice: procedure]:

[Amendments Nos. 172 to 177 not moved.]

Clause 41 agreed to.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

moved Amendment No. 178:

After Clause 41, insert the following new clause—

"NOTIFICATION AND REPORTING OF DECISIONS

(1) The appropriate authority shall make provision by regulation for the maintenance of a record of all medical treatment decisions made by deputies and by donees of lasting powers of attorney, and the related information specified in subsection (5) below, and for that purpose the appropriate authority shall also make provision by regulation for the collection of such information from NHS bodies, local authorities and any other public bodies the appropriate authority shall stipulate.

(2) For the purposes of subsection (1) above it shall be the duty of such bodies from whom such information is to be collected, in accordance with the regulations prescribed in subsection (1) above, to maintain a record of any medical treatment decisions affecting any person in their care or for whom they are responsible where such decision is made by a deputy or by a donee of a lasting powers of attorney appointed under this Act, together with the related information specified in subection (5) below.

(3) The appropriate authority shall prepare and present a report on such medical treatment decisions and related information.

(4) The report shall be laid before Parliament and published before 31st December in each year.

(5) The report shall contain—

(a) a summary, by type of treatment, of medical treatment decisions made by deputies and donees of lasting powers of attorney within the reporting period, indicating—

(i) where such decisions resulted in the withdrawing and withholding of medical treatment;

(ii) where such decisions resulted in the withdrawing and withholding of life-sustaining treatment;

(iii) where such decisions were followed by a serious adverse event or reaction in relation to P within the meaning of Article 2, paragraph O of Directive 2001/20/EC;

(iv) where such decisions were followed by the disability or continuing disability of P;

(v) where such decisions were followed by the death of P;

(b) a summary of all applications to the Court in relation to those medical treatment decisions;

(c) a summary of all offences reported and convictions recorded in relation to those medical treatment decisions; and

(d) a summary of the cost to the National Health Service of legal proceedings arising out of any of those medical treatment decisions."

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

The amendment standing in my name and that of the noble Lord, Lord Brennan, and my noble friend Lady Masham of Ilton would insert a new clause that deals with the notification and reporting of decisions. The amendment is intended to provide a framework for monitoring decisions made by court-appointed deputies and attorneys.

The Government are aware of the real fears about the powers that the Bill vests in proxy decision-makers, especially as regards end-of-life decision-making. A practical way of responding to those fears is to provide a framework within which Parliament can monitor the decisions being made by deputies and attorneys. I do not want to place a great burden on health authorities and I am conscious that people are already very busy, but most of the information that would be collected under the amendment is anyway in the public domain and would have to be collated. Perhaps the Minister will confirm that and tell us whether the amendment would require anything onerous that is not already being done.

The amendment would allay some of the fears that people have about the implications of the Bill, however much we have been able to address some of those concerns during our proceedings. For instance, trends and patterns could be observed so that if it appeared that decisions to withdraw life-sustaining treatment, especially artificial nutrition and hydration, were being made with increased frequency, further investigation could be conducted and abuses uncovered.

On the second day of Committee, on Thursday before last, the Minister announced that the Government would be bringing forward an amendment on Report to remove the power to make decisions relating to life-sustaining treatment from court-appointed deputies. I welcome that amendment; that is a positive step forward and I was very glad that the Government announced it. It goes some way to address the concerns that my amendment, Amendment No. 178, which was of course tabled before the government announcement, was intended to address.

However, I remain concerned about the lack of scrutiny to which the decisions of attorneys will be subject. Hence the amendment. The maintenance of a proper record comprising all the information set out in subsection (5) would allow Parliament effectively to police the legislation.

My amendment makes clear that the report laid before Parliament every year would need to contain the following information. First, there would be:

"a summary, by type of treatment, of medical treatment decisions made by deputies and donees of lasting powers of attorney within the reporting period".

That would indicate, first,

"where such decisions resulted in the withdrawing and withholding of medical treatment"; secondly,

"where such decisions resulted in the withdrawing and withholding of life-sustaining treatment"; thirdly,

"where such decisions were followed by a serious adverse event or reaction in relation to P within the meaning of Article 2, paragraph O of Directive 2001/20/EC"— that is the European directive defining what is a serious adverse reaction; fourthly,

"where such decisions were followed by disability or continuing disability of P"; and, fifthly,

"where such decisions were followed by the death of P".

My amendment goes on to include, in paragraph (b),

"a summary of all applications to the court in relation to those medical treatment decisions"; in paragraph (c),

"a summary of all offences reported and convictions recorded in relation to those medical treatment decisions"; and, finally,

"a summary of the cost to the National Health Service of legal proceedings arising out of any of those medical treatment decisions".

I do not believe that the preparation and maintenance of such a record would place too onerous a requirement on attorneys, deputies or medical professionals.

This weekend, it was reported—some Members of the Committee will have seen the reports in the newspapers—that the Secretary of State for Health has sought permission from the Court of Appeal to intervene in the Leslie Burke appeal because of the cost implications to the NHS of granting patients the right to receive nutrition and hydration delivered by artificial means (ANH).That was a front page story in the Daily Mail headlined,

"Too costly to be kept alive".

It stated that the Secretary of State was involved in a row about terminally ill patients.

Having heard what we have from the noble Baroness and her noble friend during the course of our proceedings, I know that they will be able to lay those fears to rest. I hope that they will take this opportunity to do so because, needless to say, it has launched yet another avalanche of letters from people who are concerned about the Bill.

Nevertheless, helpfully, that highlights anxieties—especially, as we heard in Committee, from disabled people themselves. Some kind of reporting procedure on the lines outlined by myself, the noble Lord, Lord Brennan, and my noble friend Lady Masham in this amendment would give us the chance to monitor what happens after the Bill is enacted. If patients were granted the right to request and receive any medical treatment, such as dialysis or chemotherapy, that would have significant resource implications for the NHS. We are all aware of that.

However, ANH is not the same as that kind of treatment; it is a different matter. If the Government and the medical profession had not been so dogmatic about the classification of ANH as medical treatment, then vulnerable patients such as Leslie Burke would not have felt the need to go to court to be granted the right to receive adequate nutrition and hydration. In a sense, the Government have therefore created a rod for their own back.

I have to say that as a layman and not a medic the idea that patients could be denied ANH because of resource implications would cause me profound problems. It would be pretty scary, and I notice from the affirmation of the Ministers that they would share that view. For that reason alone, however, it is important to introduce to the Bill a notification and reporting system so that decisions can be recorded. In that way, if evidence emerged that resource considerations played a part in the provision of ANH or any other medical treatment to those who lack capacity, then action could be taken.

If, for instance, we saw a blip emerging in some part of the country, such as Stockport, action could be taken. Let us take the example that my noble friend Lady Masham gave earlier of the involvement of someone like Doctor Shipman. In such an area, if someone were using this legislation for purposes that were never intended, and if there were reporting every year on the basis for which I am arguing, it would rapidly become apparent and it would then be possible for the Government to do something about it. But if we do not collect the data we will never know, and we will not be in a position to take effective action. Without the notification and reporting mechanism that I propose there will be no effective way to verify whether the legislation is producing the promised benefits for those who lack capacity.

This is a very reasonable amendment. I hope that the Government will accept it. If they do not like its wording, I will be happy for them to come back with something better on Report. I beg to move.

Photo of Lord Walton of Detchant Lord Walton of Detchant Crossbench

The motivation underlying the amendment is unexceptionable. There are many issues arising out of the speech of my noble friend Lord Alton which make the amendment worth serious consideration. I agree wholly with his point about withdrawing food, fluid and nutrition from a sentient patient; under no circumstance would I contemplate it. As your Lordships' House has considered previously, and as the High Court and the Court of Appeal have considered, the issue that arises in relation to patients in a permanent vegetative state is totally different.

However, my concern is that, until the Government achieve their objective of computerising all medical records so that all information about decisions made on behalf of and for patients can be retrieved, the amendment could impose upon the staff of health authorities and others an intolerable burden which might be unacceptable. Already, doctors, nurses and other healthcare professionals in the NHS are under an increasing burden in reporting on issues relating to waiting lists and a huge number of other government initiatives. That takes them away from their primary concern of patient care.

My only concern, which I express in all conscience to my noble friend, is that if the amendment were agreed, until the full computerisation of medical records in the NHS has been achieved, it could impose on NHS staff an intolerable burden that might be impossible to fulfil.

Photo of Baroness Masham of Ilton Baroness Masham of Ilton Crossbench

My Lords, I support my noble friend Lord Alton on this matter. We must think carefully about the problem of Shipman and the danger that patients can be in. There must be some provision. I look forward to the Minister's reply; I hope that it is a successful one.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs) 7:45 pm, 8th February 2005

My Lords, I am very grateful to the noble Lord, Lord Alton, for giving me the opportunity to address briefly the Daily Mail article. I know that that is why the noble Lord raised the matter.

It is true that the Department of Health has applied to join the GMC in the Burke appeal but it did so because it seeks clarity. It believes that ANH should always be provided where it is in the patient's best interests. Where patients request ANH they should receive it. However, the judgment could be read as allowing patients to request any life-sustaining treatment, even if it was harmful to the patient or if the treatment was not available, such as a transplant or a very expensive, experimental treatment that in the clinical judgment of doctors was not appropriate or in the patient's best interests. Those are the only grounds on which the Department of Health has joined the appeal.

I take issue slightly with the noble Lord's remark about what he called the "dogmatic" view about ANH. I know that he benefited, as I did, from the meeting with Mr Rob George, who as a palliative care expert talked about why ANH was a treatment and about the importance medically of thinking of it as such and not as the equivalent of food and water. The reason is that it is invasive; it requires blood to be taken; it runs the serious risk of infection, and so on. I am in the company of medical staff, so I shall be quiet about that from now on otherwise I will be in danger of pretending that I know things when I do not. However, I do not think that I have said anything contrary to the views of those noble Lords.

I understand why the noble Lords, Lord Alton and Lord Brennan, and the noble Baroness, Lady Masham, have tabled the amendments. I sympathise with their aim to ensure that appropriate mechanisms are in place to assess how donees of lasting powers of attorney or deputies perform their functions and ultimately to protect vulnerable people. However, I am concerned about prescribing that in legislation; I do not think that the noble Lord will be surprised to hear me say that. Nor am I sure that creating a database of the numbers and types of decisions about medical treatments made by lasting power of attorneys and deputies is necessarily the best way to address the noble Lord's concerns.

Naturally and rightly, we are very concerned to ensure that inappropriate decisions are not made about medical treatments—and not just by donees of lasting powers of attorney and deputies. That is why, for example, the National Patient Safety Agency has introduced a national system for reporting and learning from patient safety incidents, which is gaining international recognition and praise.

By the end of December, all 607 trusts in England and Wales were linked to the National Reporting and Learning System. In parallel, the National Patient Safety Agency will run a comprehensive training programme to enable NHS staff to use the new reporting system effectively. The agency is already training staff to use the techniques of root-cause analysis, giving them an investigative tool to analyse and understand the real, root causes of the adverse incidents that they experience and to take action at a local level to prevent them happening again. That is supported by the 31 patient safety managers based in each strategic health authority region across the country.

Where decisions about medical treatment are made by donees of lasting powers of attorney and deputies, we expect that to be recorded in the patients' medical records. That will be an important part of training and guidance for healthcare professionals in implementing the Bill. They will not make such decisions in a vacuum because healthcare professionals will be closely involved in the decision process. Where healthcare professionals or friends and relatives have concerns about the decisions made by attorneys or deputies, they will have access to the Office of the Public Guardian to voice their concerns, and ultimately to the Court of Protection to challenge those decisions.

As part of the plans for implementing the Bill, we are taking steps to ensure that the Office of the Public Guardian will be in a position to monitor the role of deputies. There will also be a record of disputed decisions that have come before the Court of Protection. The confidentiality of those concerned will be protected.

The Court of Protection will keep records of cases, including those involving medical treatments. The Public Guardian Office is reviewing what IT and record-keeping systems will be necessary to support the new court. We envisage that it is likely to include a breakdown of cases involving deputies and donees of lasting powers of attorney.

As for recording the medical treatment decisions taken by attorneys and deputies, the amendment would, as the noble Lord, Lord Walton of Detchant, implied, result in the need to create a new system to record the number and types of decisions about medical treatment made by attorneys and deputies. As we have discussed in Committee, decisions about life-sustaining treatment are complex. I am not sure that simply measuring the number and types would give a clear enough picture of whether such decisions were appropriate. Simply adding up each decision would not demonstrate whether the right decision was made. In our earlier discussions, the noble Baroness, Lady Finlay of Llandaff, described how decisions were made day by day and hour by hour in many cases.

The emphasis of the Bill is on focusing on a person's best interests and making decisions in that context. I am not convinced about separating out information about the number and type of decisions that are, in a sense, made without reference to the best interests test. It might give only a partial view.

Inevitably, there would be difficulties in capturing some of the information suggested, as the NHS does not collectively capture information about whether a treatment has been withdrawn or withheld. As I have said, it is difficult to determine what "life-sustaining" means; there is no neat category. In Committee, we have discussed the fact that, in certain circumstances, treatments such as antibiotics could be life-sustaining, and, in other cases, they would not be. ANH is not always used for life-sustaining reasons; it may be used to help a patient in intensive care to recover more quickly, although their life would not be in danger if they did not receive that treatment.

That is a long way of saying that I have great sympathy with the noble Lord, but I am not convinced that collecting the information purely for the purposes of preparing an annual report to Parliament is the best use of inevitably limited resources. I have tried to indicate some of the other ways, through the Office of the Public Guardian and the National Patient Safety Agency, in which we have tried to deal with some of the questions that the noble Lord and the noble Baroness, in particular, raised.

I hope that, on the basis of what I have said, the noble Lord will be able to reflect on whether I have captured within the work of those two organisations in particular some of his concerns. Perhaps the noble Lord will reflect with me before Report on whether there is any more that I could do.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

I am grateful to the Minister. Could she identify the areas that, she feels, would be in addition to those that she has already identified about which information will already be in the public domain through the Office of the Public Guardian and others?

My noble friend Lord Walton of Detchant raised a proper concern about not creating a bureaucratic nightmare for people in the NHS, and I agree with what he said. However, if the information is already in the public domain, even if it is only a partial view—we heard all the caveats that the Minister just entered—it would be better than no view. We could be left with no way of monitoring the way in which the legislation works. That is what inspired me to table the amendment in the first place, and it is why I would like to explore the issue a little further with the Minister.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

The issue about having a partial view is twofold. The first question is whether one collects information that gives a complete picture because one has all the information. The aspect that I was referring to was the collection of information without the benefit of considering the individual's best interests and the decisions that have been made in that context.

It is difficult to see how information on the number and types of decisions would provide what the noble Lord seeks; namely, information on whether people are being protected correctly, how the decisions are made and what are the results. My partiality is that I do not think that it will take the noble Lord to where he wants to go. For the Public Guardian, the kind of supervision that will be sought—for example, of deputies—will relate to whether the person is appropriate and carrying out the risk assessment of the case. I have a list of things that I will send to the noble Lord, rather than taking up the Committee's time.

The fundamental question is how we get information that will tell us, in general, about how decisions are applied, both in a clinical context and beyond that. We are looking to make sure that the necessary training and support is available through the National Patient Support Agency. There is an interesting potential in that that the noble Lord and I can perhaps explore. The second thing is the support available through the Office of the Public Guardian to deputies, in particular. As I said, I will indicate the kind of work that it will do.

I am not convinced of two things. One is that it needs to be in the Bill. The second is that, if one were using resources to address the issues about which the noble Lord is concerned, this is the way forward. I know how limited resources will inevitably be in the area—we will talk again on Report about the resources for advocacy, for example—and I am not entirely convinced that we will achieve what the noble Lord wants by collecting the information in that form.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

I am grateful to the Minister for the points that she has made to the Committee. I shall reflect further on the matter.

I think of the Abortion Act 1967 in this context. A careful reporting procedure was put in the Bill because of the concerns that people raised during its passage. In the past couple of years, there has been the example of that remarkable young Anglican clergywoman, Joanna Jepson, who has gone to court over the issue of cleft palate abortions. She was able to find out about it by a careful analysis of the reporting of all the 184,000 abortions that had occurred in the previous 12 months. By going through it and finding the grounds on which the abortions were permitted, she discovered that abortion on the ground of a cleft palate had taken place, I think, at 34 weeks' gestation and has been able to challenge that in the courts. More importantly, she has opened up a widespread and important debate about eugenics and whether such things should be permitted.

Whatever one's view of that—I would obviously side with her on the issue—it is in the public interest to have transparency, so that we can know why decisions are made. If that does not require the collection of new information that is not being collected anyway—I am happy to accept the point made by my noble friend about the use of computerised record-making in this context—it is not unreasonable for Parliament to say that it would like to be kept informed, as the years go by, about the trends and about the reasons why the legislation is being used in a particular manner.

On the basis of what the Minister said, I would like to think further about the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Elton Lord Elton Conservative

I must inform the Committee that the number of noble Lords voting "Not-content" in the second Division this afternoon was 163, not 162, as announced.

Clause 42 [Ill-treatment or neglect]:

Photo of Earl Howe Earl Howe Shadow Minister, Family, Shadow Minister, Health

moved Amendment No. 179:

Page 24, line 37, at end insert—

"( ) is appointed by the Secretary of State for Works and Pensions"

Photo of Earl Howe Earl Howe Shadow Minister, Family, Shadow Minister, Health

In moving Amendment No. 179, I shall speak also to Amendment No. 180. As a preface to my remarks, I apologise for the slight typing error in Amendment No. 179, which, I think, was not the fault of the Public Bill Office.

It would be helpful to the Committee if the Minister were able to comment briefly on the provisions of the clause and, in particular, explain exactly the gap in the current criminal law that the new offence of ill treatment or neglect is aimed at filling. Currently, there are the offences of assault and battery, causing actual bodily harm or causing grievous bodily harm, for example, but I take it that the new offence runs wider than that type of case.

The mention of donees of lasting powers of attorney and court deputies suggests that we could be talking about much wider sorts of wrongful behaviour, such as depriving a person of the financial means of acquiring the necessities of living or failing to ensure that someone receives proper day-to-day care. Given the potential for relatives to make decisions that are aimed at their interests of inheritance, financial abuse does not always fall clearly within the Theft Act. Even when it does, prosecutions are rare. Even more rarely does the person who has been abused get financial redress or their money returned.

It would also be useful if the Minister could confirm my understanding that the new offence might capture a nurse or carer who failed to provide basic palliative care to a mentally incapacitated person who is terminally ill. If that is so, I would have thought that that would act as a further reassurance to those who fear otherwise—that even where a decision is taken to withhold or withdraw artificial nutrition and hydration from someone who is terminally ill, there can never be a valid reason for depriving anyone of basic physical care and failure to do so could be criminal.

Can the Minister say whether a local authority or a local government officer might render themselves liable under this clause if, for example, there were a local authority care home for adults with learning difficulties and the conditions at the home, including the standards of care, were allowed to deteriorate to a completely unacceptable state? There was a case of exactly that kind in my own area only a few years ago. In such a situation, would it be only the care home manager who would be deemed as having the care of the residents or would the liability extend further upwards?

We spoke in an earlier debate about appointees acting under the authority of the DWP. The Minister very helpfully referred to discussions within government which are designed to make sure that the spirit of the Bill and the substance of the codes of practice will be adopted by appointees who have responsibility for incapacitated people living on benefit. I should be glad if the Minister could say whether a neglectful appointee might be caught by the new offence if he failed to fulfil his obligations in a gross and serious way.

My final question relates to the relationship between this clause and Clauses 6 and 11. When are protective measures reasonable for restraint and when do such actions amount to ill-treatment? The Minister will obviously not be able to give me any sort of precise answer, but the question is a very real one in practice.

It seems to me that the code of practice will need to address this very difficult area. For example, temporary restraint in an emergency would almost certainly not amount to ill-treatment. Continuing measures that serve to confine an individual significantly for a length of time could be another matter. There may well be justification for such measures in certain cases, but a carer should not have the responsibility of taking such a decision unsupported. There should be a standard review mechanism to include a second opinion to protect both the patient and the carer in such situations. I am sure that Members of the Committee would find it helpful if the Minister could say something about this issue also. I beg to move.

Photo of Baroness Greengross Baroness Greengross Crossbench 8:00 pm, 8th February 2005

I support the points raised by the noble Earl. I should like to start by talking about "undue influence". The Master of the Court of Protection, when giving evidence to the Joint Committee, said that possibly 20 per cent of current EPAs are abused in some way. The issue of "undue influence" may arise when a person who lacks capacity can very easily be said to have given the attorney sums of money. There are many cases where people have received large sums in such ways, yet receipt of the money has not been overturned in any way because the law does not sufficiently cover the issue. If someone is found to have knowingly financially gained from the person's lack of capacity, surely that should count as a criminal offence.

Solicitors for the Elderly—an organisation that deals daily with people affected in this way—supports the amendment. Individuals can have appointees to collect state benefits, but they ought to be brought under the protection of legislation. SFE says that the Office of the Public Guardian could do one-off orders which are similar to the current short orders administered by the DWP.

As regards appointees, Age Concern—of which I am a vice-president—gets many reports directly from the public as well as from finance officers working in local authorities. These reports refer to appointees who are not spending the money on the person's behalf. There was recently a case where the appointee refused to hand over the benefit to pay for the care of the person. In that case, it ran to several thousand pounds.

Sometimes only very small sums are involved, in order to provide for personal expenses. Some people have only their rather nastily called "pocket money", amounting to about £18. Bearing in mind that that is all that some people get after paying for their care, it is vital that it is paid in full and not held back. A recent Age Concern case concerned a man in a care home who never had enough money to spend, for example, on toiletries. His wife, who was the appointee, was using the money for herself.

The knowledge that such actions could be considered a criminal offence might act as a deterrent to those who might not always appreciate that they are doing something wrong. They may think that it is okay, but we know that it is not. There is a case for making it a criminal offence.

Photo of Baroness Masham of Ilton Baroness Masham of Ilton Crossbench

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.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

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 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 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.

Photo of Earl Howe Earl Howe Shadow Minister, Family, Shadow Minister, Health 8:15 pm, 8th February 2005

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 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.]

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

moved Amendment No. 181:

Page 24, line 43, leave out "5" and insert "10"

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

This is a probing amendment that deals with a short point in Clause 42. I decided to look for the background for that clause and found that it seems to be based, loosely, on Section 1 of the Children and Young Persons Act 1933, which is still the statutory basis for the crime of wilfully ill-treating or neglecting a child. Under the 1933 Act, the maximum penalty for ill-treatment or neglect was imprisonment for two years. The present maximum term of imprisonment under the 1933 Act has been raised by subsequent legislation to a period of 10 years. While I am not in principle a believer in the virtues of long terms of imprisonment, I wonder why the maximum penalty for ill-treating or neglecting a person lacking capacity is only half the maximum penalty for ill-treating or neglecting a child. I beg to move.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

This is an interesting question, and I am grateful to the noble Lord, Lord Goodhart, because I have had to go and find the answer to it.

As the noble Lord will know, but other noble Lords may be unaware, the period of imprisonment was increased to five years as that made the offence an arrestable one and people can be arrested for it without a warrant under Section 24 of the Police and Criminal Evidence Act 1984. It was one of the key aims of the Disability Now campaign Justice for Survivors, launched in December 2003 which was aimed at ensuring that victims of cases like Longacre were properly protected and the culprits properly punished.

I can assure the noble Lord that we did look carefully at the possibility of increasing the maximum sentence, as it is proposed, but we recognise that the increase to five years has brought it more in line with other serious assaults on individuals, including the offences of inflicting grievous bodily harm and assault occasioning actual bodily harm. It would therefore be strange to have an offence which causes harm by neglect, with a maximum penalty which is greater than the maximum penalty for GBH, for example.

I also checked that for the offence in the Children and Young Persons Act 1933—which covers not only ill treatment and neglect but wilful assault, abandonment and exposure, and which requires likelihood to cause unnecessary suffering or injury to health, even where a child has died—the penalty on conviction was increased from two to ten years by Section 45 of the Criminal Justice Act 1988. The matching Scottish offence was subject to the same change. There was no doubt a good policy reason for the significant change at that time, but I cannot find what it was. I therefore cannot help the noble Lords to understand why the law relating to children is out of step—if that does not sound too awful—with other aspects of the law. The equivalent offence in the Adults with Incapacity (Scotland) Act 2000 has a maximum penalty of two years.

Five years brings the Bill into line with other aspects of crime. It is actually the law relating to children which is out of step, again if that does not sound too terrible. I hope that I have answered the noble Lord's point.

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

I am grateful to the Minister for explaining the cause of the distinction, which puzzled me when I first saw it. I now understand the reasoning behind this. I am glad that there has been an opportunity for research and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 42 agreed to.

Clause 43 agreed to.

Clause 44 [The judges of the Court of Protection]:

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

In speaking to Amendment No. 182 I wish also to speak to Amendments Nos. 183 to 185. This group and the following group are a matter for lawyers rather than mental health experts, so the mental health experts in the Chamber can now take a rest.

The purpose of this group of amendments is to transfer responsibility for the appointment of judges of the Court of Protection from the Lord Chancellor to the Lord Chief Justice. The Bill describes these not as an appointment but as a nomination. The nomination will be of existing judges who will retain their existing ranks in the judicial hierarchy. There will be no cases of first appointment or of promotion. They are therefore a matter of judicial deployment.

When the Constitutional Reform Bill comes into force this will cease to be a matter for the Lord Chancellor. It will not become an appointment for which the Judicial Appointments Commission is responsible but will come within the scope of the powers of the Lord Chief Justice, as part of his responsibility for deployment of judicial power.

I recognise that these amendments are premature, as it is not appropriate to enact them until the Constitutional Reform Bill is in force. It is therefore not my intention to press them, either today or at any subsequent stage. However, I would like to ask whether the amendments in the names of myself and the noble Baroness, Lady Barker, are in fact a correct forecast of what will happen, or what is expected to happen, when the Constitutional Reform Bill comes into force. If not, what other arrangements will be made? I beg to move.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

I am neither a lawyer nor a mental health expert. The noble Lord, Lord Goodhart, will forgive me if I have a sense of déjà vu in the light of the legislation we have discussed in the past 24 hours. I congratulated the noble Lord on spotting this point at Second Reading.

The noble Lord, Lord Goodhart, rightly said that Clause 44 gives the Lord Chancellor the power to nominate judges to sit in the new court of protection, which is in keeping with the current role of the Lord Chancellor. If the Constitutional Reform Bill is enacted, the changes will be introduced to bring these functions into line with the agreement reached between the Lord Chief Justice and the Lord Chancellor, which we know lovingly as "the concordat".

An amendment of the kind proposed by the noble Lord will therefore need to be made if the Constitutional Reform Bill is passed in its present form. My notes say "Nothing is certain in politics"; that is certainly true. We cannot assume that the Bill will finally be enacted in the form in which it leaves this House. This Bill is not the only one affected by the Constitutional Reform Bill. A number of pieces of legislation have been enacted since the Bill was introduced in your Lordships' House.

The noble Lord, Lord Goodhart, will know, but other Members of the Committee may not, that the Constitutional Reform Bill provides that such legislation can be amended by affirmative resolution. Such an order will be made concerning all the affected legislation once we have received Royal Assent. I hope that that addresses the noble Lord's concern and that he is able to withdraw his amendment.

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

That does indeed provide the expected answer to the question raised by the amendment. It is as I expected and I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 183 to 185 not moved.]

Clause 44 agreed to.

Clauses 45 to 47 agreed to.

Clause 48 [Applications to the Court of Protection]:

[Amendment No. 186 not moved.]

Clause 48 agreed to.

Clause 49 [Court of Protection Rules]:

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

moved Amendment No. 187:

Page 27, line 31, leave out subsection (1) and insert—

"( ) There are to be rules of court (to be called "Court of Protection Rules") governing the practice and procedure to be followed in the Court of Protection.

( ) Court of Protection Rules are to be made by a committee known as the Court of Protection Rules Committee."

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

The purpose of the amendments in this group is to set up a rules committee for the Court of Protection instead of having rules made by the Lord Chancellor or by someone to whom the Lord Chancellor has delegated that responsibility. Earlier we debated the right of a Minister to delegate powers.

The movement is towards having independent rules committees. The Courts Act 2003 added a Criminal Procedure Rules Committee and a Family Procedure Rules Committee to the long-standing Civil Procedure Rules Committee. The purpose of Amendment No. 187 is to provide for a committee to make the rules.

Amendment No. 187 is not in itself complete: it would require a number of further provisions. For example, the Courts Act provides the rules made by rules committees to be approved by the Lord Chancellor. That has not been altered by the Constitutional Reform Bill and would need to be incorporated into this Bill if the principle were accepted.

It is true that the Court of Protection will be a smaller operation than the family or criminal courts, but it will have an equal need for rules. I see no reason why rules committees should not be set up as a statutory body. The rules committee will be made up of people with real experience in the field and Amendment No. 188 sets out a suggestion of how the committee should be constituted. Again, it is based loosely on the make-up of the Family Procedure Rules Committee. I suggest that it should consist of the president of the Court of Protection and three other judicial members of it; the Public Guardian; one legal practitioner with experience of the Court of Protection; two visitors, one general and one special; and two people with experience of people who lack capacity. The judicial members will be appointed by the Lord Chief Justice; the others by the Lord Chancellor. That matches the proposals for the Family Procedure Rule Committee as amended by the Constitutional Reform Bill. That seems to be the right balance, but I am not wedded to it.

Although I remember that at Second Reading, the Minister indicated that it would be inappropriate to have a separate statutory rules committee for the Court of Protection because it was a substantially smaller body than the family or criminal courts, nevertheless it seems in principle right and in accordance with modern practice that bodies which are separate courts should have separate rules committees with the responsibility, subject to the involvement of the Lord Chancellor, of making the rules for that court. I beg to move.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs) 8:30 pm, 8th February 2005

We considered very carefully how best to make rules for the Court of Protection. As the noble Lord, Lord Goodhart, has indicated, rule committees have been an effective way of making rules for the civil, criminal and family jurisdictions. They are useful—if not essential—when the rules need to cover a range of courts and will affect a wide range of people in slightly different contexts so that it is necessary to seek a representative view.

However, as the noble Lord indicated, at Second Reading I felt—and I remain of the same position—that in comparison with the family, civil and criminal jurisdiction, the Court of Protection will have a small and highly specialised jurisdiction. Therefore, I do not agree that there is the same need to ensure that views are sought from different types of court and types of work.

The noble Lord has helpfully suggested who might be included on such a committee. He may not be surprised to hear that I have this thing about including lists in Bills, as noble Lords who have heard me before will know. The minute that there is a list on the face of the Bill, everyone either wants to add to it or it cannot be expanded easily to increase or amend the membership—or whatever is on the list. I am deeply reluctant on almost every occasion to include lists in primary legislation, especially in this case.

I agree that we need to consult a wide range of people—the court's senior judge, other judiciary, lawyers with experience of this area of work, the Public Guardian, Court of Protection Visitors, and so forth, all of whom are rightly included in the noble Lord's amendment. However, there is another very important group of people who I think are not sufficiently catered for in Amendment No. 188.

The Public Guardianship Office has a consultative forum that includes many stakeholders whose views represent the users of the court. This includes a number of groups representing people who lack capacity—such as Age Concern and the National Association of Citizens Advice Bureaux, and lay and professional receivers. This body has been very helpful in allowing the Public Guardianship Office and the court to ensure that the needs of their users are taken into account. In particular, they ensure that those who lack capacity and those who care for them—whose views might not otherwise be listened to—have a voice.

I do not want to leave out—as I am sure the noble Lord would not want to leave out—users of the service and others with a direct interest in it, and would therefore prefer to approach the most appropriate people depending on the subject of the rules under consideration.

We want to create a court that is accessible, informal and built around the needs of its users. Frankly, I think we can do that better if we pursue a more flexible approach to making rules than the one that the noble Lord has indicated so far. On the basis that that is the way that we would approach this matter, which is partly what the noble Lord is searching for, I hope that he will feel able to withdraw his amendment.

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

I naturally have some regret that the Minister is unable to accept what I believed to be a reasonable proposal, but it is not one which is in any way critical to the Bill. Having heard what the Minister has to say, I shall leave it at that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 49 agreed to.

[Amendment No. 188 not moved.]

Clauses 50 and 51 agreed to.

Clause 52 [Fees]:

Photo of Baroness Barker Baroness Barker Social Services, Non-Departmental & Cross-Departmental Responsibilities

moved Amendment No. 189:

Page 29, line 19, at end insert—

"( ) exemption from fees where a deputy is appointed totally in relation to state benefits and such capital that accrues from state benefits"

Photo of Baroness Barker Baroness Barker Social Services, Non-Departmental & Cross-Departmental Responsibilities

I apologise for not having been here earlier, but I had to work and I have only just got back.

The amendments are small and technical, but meaningful. The provisions on fees may seem of minor importance in the great scheme of things, but it means quite a lot to the people who take on the work of deputies and, particularly, appointees, who go to considerable lengths to assist people who themselves have very little income. Therefore, it seems to us that it would be wholly reasonable to permit the Lord Chancellor the power not only to charge fees but to order that there be a remission of fees, particularly with regard to very small sums of money.

Having spoken to people who act as deputies and, particularly, as appointees, I know that they often go to considerable lengths, often at their own expense, to do the right thing for people. Therefore, we believe that it is important that the incapacitated person should not be financially disadvantaged by having to cover the costs of things such as appointeeship from small sources of money. Those costs are covered by the DWP, so there would be no need to transfer funds across to the Office of the Public Guardian to ensure that costs could be met.

The aim of the other amendments in the group is to require that there is widespread consultation about fees and the power to advertise any remissions of fees. We have spoken before, in Committee, about the costs of registering, and how that may be a deterrent to some who want to take on the duties of a lasting power of attorney. The amendments are minor but could make a significant difference to some people who are doing things for people who do not have much money. I believe that that is an important thing to do. I beg to move.

Photo of Baroness Greengross Baroness Greengross Crossbench

I support the amendments. One reason for not transferring appointeeships to the Court of Protection was that it would give a huge amount of work to the Office of the Public Guardian. But that could be dealt with under a single order, giving the person directions to administer the person's benefits in their best interests and complying with all the conditions in relation to benefit claims and payments. If appointeeships were transferred to the Office of the Public Guardian and were caught, the cost would transfer from the DWP to the office. It would be interesting to know what budget the DWP has for the appointment and monitoring of appointeeships. That could be transferred to the Office of the Public Guardian, if it were to take over the appointeeship. It could then appoint the staff who would be necessary to undertake that administrative work.

Many organisations, including Age Concern, were involved in discussions on the remission scheme and making it more open and public. Two years ago, in May 2003, I instigated a debate in the Chamber on fees and the fee remission scheme. These amendments would put on the face of the Bill what is now largely happening in practice; namely, that there is consultation with bodies of people who represent those paying the fees when they are being set, and that the fee remission scheme is properly advertised.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

I am grateful for the opportunity to talk about Clause 52 and the making of fees orders for the Court of Protection.

As the Committee is aware, Clause 52 allows the Lord Chancellor to make fees orders in respect of anything dealt with by the Court of Protection. Fees orders can set out the scales or rates of fees and arrangements for fee exemption, reduction and remission. In thinking about fee setting, remission, exemption and reduction of fees for the new Court of Protection we have looked very carefully at current practice in the other civil courts.

The principle here is that we believe it is right that people should pay a fair price for the court's work on their behalf, but it is also right that fee reduction and remission arrangements exist so that no one is prevented from going to court if paying the fees would cause them financial hardship, or if there are other exceptional circumstances. That is the principle behind what we have sought to do in this clause.

I turn first to Amendment No. 189. This amendment would provide a specific power to make fee exemptions in relation to cases where a deputy is appointed only in relation to state benefits and any capital accruing from them.

I say at the outset—I do not think that the noble Baroness, Lady Barker, will be surprised at this—that it would be very unusual for a financial deputy to be appointed solely in relation to state benefits. As the noble Baroness, Lady Greengross, said, it is very likely that the Department for Work and Pensions would establish an appointeeship. I cannot give the noble Baroness the figures regarding what the Department for Work and Pensions spends in this area. There are half a million appointees. I am not sure that one would be able to obtain the figures in any event. Certainly I shall ask the department if it has any figures that might be of value and let the noble Baroness have that information.

If an application were for a welfare deputyship, it is possible that fee exemption would apply in any case, as it is our intention that people on very low incomes and with few assets will be exempt from paying fees. Under current practice, if a person has savings and assets of less than £12,000, the whole court fee is normally waived. This would normally capture people in receipt of benefits.

I do not want to accept the amendment as it would place the Court of Protection in a different position from the magistrates' courts, county courts and Supreme Court, which have exactly the same provision on fee exemption, reduction and remission as is contained in the Bill. Fee exemptions are not made because of the type of application but the means of the applicant.

It is also the case that anyone who feels that he or she cannot afford to pay a fee will be able to apply to the court for remission of all or part of the fee. The court will have discretion to remit fees if payment would cause financial hardship or if the circumstances are otherwise exceptional. I assure Members of the Committee that arrangements for fee remission and exemption will continue.

As the noble Baroness said, Amendment No. 190 would require the Lord Chancellor to consult on fees. Clause 52(3) already requires the Lord Chancellor to consult the appropriate judges. This amendment would require him also to consult other bodies representing people who lack capacity. I agree completely with the intention behind the amendment but I do not believe that it is necessary to put it in the Bill.

Consultation should extend beyond the judiciary. That is the case now and it will remain so. Currently, before the Lord Chancellor sets fees, the Court of Protection and the Office of the Public Guardian consult a wide range of stakeholders who form part of the consultative forum to which I referred earlier. The forum includes representatives from organisations including Age Concern, the Alzheimer's Society, Help the Aged, Mencap, Mind and Scope as well as professional groups. Fees are also discussed with the Office of the Public Guardian's Professional Receivers' Forum and local authority receivers.

Clause 52(4) requires the Lord Chancellor to take reasonable steps to bring information about fees to the attention of people who are likely to pay them. Again, this reflects provisions that are contained in the Courts Act 2003. Amendment No. 191 would require the Lord Chancellor to publicise the arrangements for fee remission as well.

I assure the Committee that the Office of the Public Guardian's current information on fees always includes information on fee remission and reduction. If someone needs further advice, staff at the Court of Protection and Office of the Public Guardian are on hand to give it. The fees information on the Office of the Public Guardian's website also gives details about fee remission. This practice will, of course, continue.

I hope that I have addressed the concerns of the noble Baronesses, Lady Barker and Lady Greengross, and that they feel able to withdraw the amendment.

Photo of Baroness Barker Baroness Barker Social Services, Non-Departmental & Cross-Departmental Responsibilities 8:45 pm, 8th February 2005

The response of the noble Baroness was extremely helpful and it is important to have those points on the record. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 190 and 191 not moved.]

Clause 52 agreed to.

Clauses 53 to 55 agreed to.

Clause 56 [Functions of the Public Guardian]:

Photo of Earl Howe Earl Howe Shadow Minister, Family, Shadow Minister, Health

moved Amendment No. 192:

Page 30, line 40, after "maintaining" insert—

"(i)"

Photo of Earl Howe Earl Howe Shadow Minister, Family, Shadow Minister, Health

In moving Amendment No. 192, I shall speak also to Amendments Nos. 193 and 196. These amendments would add to the proposed safeguards in relation to lasting powers of attorney. Amendment No. 193 proposes that the Office of the Public Guardian should keep a separate record of those LPAs that are in use. That would include both those that are in use prior to the person losing capacity and those that are used once the person has lost capacity. If the information on the LPA instrument is kept up to date, which I know the Government are committed to bringing about, it will enable the Office of the Public Guardian to target those LPAs that should be monitored.

In some cases, the Office of the Public Guardian might well find that the person has regained capacity, and that would be part of the updating process. The Joint Committee that scrutinised the draft Bill recommended that there should be,

"an additional safeguard mechanism by which the Court of Protection or the Public Guardian could monitor the use of LPAs with a view to preventing the abuse and exploitation of a donee's powers".

I agree with that.

The amendments offer some suggestions as to the way in which the Office of the Public Guardian could undertake additional monitoring. If attorneys were aware that there was random monitoring, that would certainly help to prevent abuse. Currently, I understand that the Office of the Public Guardian is developing a risk assessment method of deciding on the level of monitoring of receivership cases. It would be worth considering whether a similar system could be developed in relation to LPAs. For instance, those LPAs where no one is named to be informed of registration or where the only person named was a close relative of the donee could trigger such a risk assessment.

The Bill also currently lacks any form of check by the Office of the Public Guardian regarding whether a person is suitable to be a donee. Amendment No. 196 imposes a duty on the Office of the Public Guardian to undertake checks in relation to bankruptcy and whether the person is listed on the protection of vulnerable adults list. I am aware that we have covered these issues in other amendments, but the point remains important. I hope that the Minister will not give me an entirely disappointing reply. I am sure that she appreciates the point of principle at stake. I beg to move.

Photo of Baroness Barker Baroness Barker Social Services, Non-Departmental & Cross-Departmental Responsibilities

I support the amendments in this group, in particular Amendment No. 196 in the name of the noble Earl, Lord Howe. I will speak briefly to Amendment No. 194. We put this down as a probing amendment, because I could not see anywhere in the Bill a power for provision of public information about lasting powers of attorney and the appointment of deputies. The reason for putting in what perhaps may seem a rather obvious provision is the fact that, in the course of dealing with older people as I do, one comes across many occasions where people have concerns about powers of attorney being misused or abused. They really have no idea where they should take those concerns. The work of the court and the Office of the Public Guardian is not well understood. It is a function that someone begins to understand only once they have come up against something that has gone wrong. At that point, they are scrabbling around to try to figure out what they should do.

There is a very important public information role to be performed. It would be preferable for there to be the power to do that and promote that actively long before abuse arose. That is the reasoning behind that small amendment.

Photo of Baroness Greengross Baroness Greengross Crossbench

I would very much like to support the amendments. I want to point to the other problem that sometimes arises. Although this is a sort of private arrangement, the Government have introduced a system of enduring powers of attorney and future, lasting powers of attorney. There are horrible cases of serial abuse. It is very easy to have a big scam going on with vulnerable people at its heart. You need only two or three people to set up an abuse ring, so to speak.

We need some system that would make it easier to make that unlikely. There should be a system of referencing and cross-checking that someone is not targeting two or three vulnerable people and making a lot of money from abusing their situation. It is unfortunate, but such dangerous things happen.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

All the amendments look to add to the functions of the Public Guardian set out in Clause 56. They are all concerned with putting additional safeguards in place to protect against abuse, particularly of lasting powers of attorney. I sympathise with what Members of the Committee seek to achieve. It is because of that concern that we have put a number of safeguards in the Bill, including the requirement to register lasting powers of attorney before they can be used, the certificate stating that the person has capacity and that they are free from fraud or undue pressure, and the provision for the notification of named people.

A key issue running through a number of the amendments is that of striking the right balance between, on one hand, adequate protection of donors of lasting powers of attorney, and, on the other, allowing people to make their own decisions without interference from the Public Guardian or anyone else. I will discuss the amendments in turn, beginning with Amendments Nos. 192 and 193.

One of the functions of the Public Guardian is that he should establish and maintain a register of lasting powers of attorney. As the noble Earl knows well, the amendments would require the Public Guardian to maintain a separate register of lasting powers of attorney where notification of their use had been received. In a sense, that relates back to Amendment No. 46, which proposed that the Public Guardian should be notified when a power of attorney is to be used for the first time. As I discussed during our debate on Amendment No. 46, a second registration would not necessarily achieve the result that Members of the Committee seek. For one thing, the power might be used once and then not used again for many years. I gave the example of someone who needed help following a road accident but then made a full recovery.

During our earlier debate, the noble Earl made the important observation that the LPA being registered for the second time would provide a good opportunity for the Office of the Public Guardian to send the attorney information reminding him of his duties, or perhaps the most recent revision of the code of practice. I agree that it is important that attorneys should receive reminders of how they should act, as well as up-to-date information and guidance. That is especially true in cases where the lasting power of attorney may have been drawn up many years before, registered at that point, and has then sat in a drawer until the donor has lost capacity and it was decided to use it.

We discussed the issues of those at their most vulnerable making a lasting power of attorney and the opportunity for people to, in a sense, coerce them at that point. People might create lasting powers of attorney long before they might need to use them.

I do not think that the second registration is the best way to achieve this, partly because circumstances vary so much. In some cases, the second registration might happen a very short time after the first, while in others there may be a long period in between.

The system proposed by the noble Earl would mean that the public guardian contacted donees once, which is when the lasting power of attorney was first used. I think that we can do a lot better than that. I should like attorneys to be reminded often of their duties and responsibilities. I want them to get regular reminders of the work of the Office of the Public Guardian.

Good initial guidance for those acting as attorneys could help them to be proactive in seeking up-to-date information from the OPG. I would expect the advice on drawing up an LPA to say that if the LPA is registered but then not used for a long time, the attorney should contact the OPG when he does want to use it.

When discussing the code of practice, I have said that I expect it to be revised fairly frequently. We shall need to ensure that if any changes are made to the guidance on LPAs, attorneys have the revised version drawn to their attention. The best way of achieving this will be considered as part of the public consultation on the code.

I am sure that the OPG will be using new technology to disseminate information and to remind us effectively and efficiently. It may be that in 10 years' time—I can hear myself in the next remark, as I was talking about text messages only a couple of days ago—the OPG will be sending regular e-mails and so on to attorneys. Technology certainly enables us to think about different ways of keeping in touch with those who are registered. There are many ways of ensuring that there is regular contact between the OPG and attorneys.

I do not think that a second register is the best way of achieving that. However, I am grateful to the noble Earl for setting us off on a train of thought. If we want people to think about their own future, we could perhaps increase the number of years between registration and use. There are also issues about the revisions in the code of practice that I would wish to deal with. I hope that my plans and ideas on that will go some way to addressing the noble Earl's concerns.

Amendment No. 194, tabled by the noble Baroness, Lady Barker, refers to the provision of public information about lasting powers of attorney and the appointment of deputies. I am sure that the noble Baroness will realise from what I have been saying that I am very sympathetic to the intention of the amendment. We envisage that the public guardian will become the focal point for information about mental capacity issues, particularly around the value and use of deputies and LPAs. The OPG already produces information in this area and we would expect the new public guardian to continue to do so. That includes leaflets, accessible guidance and website information.

The amendment would make the provision of information in this area an explicit function of the public guardian. I should therefore like to consider further the noble Baroness's proposal as it has a great deal of merit.

I believe that the next amendment in the group has not been formally moved. I have no idea what the procedure is, but I shall sit down and allow the noble Baroness, Lady Chapman, to speak to it.

Photo of Baroness Masham of Ilton Baroness Masham of Ilton Crossbench

That is kind of the Minister. My noble friend Lady Chapman will now speak to Amendment No. 195.

Photo of Baroness Chapman Baroness Chapman Crossbench

I very politely waited to speak to Amendment No. 194, but I did not and missed my moment. I shall not be that polite again.

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. 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 interest—for example, no financial gain is to be made.

If the amendment were to be accepted, it would allow people who lack capacity an opportunity to question their care and treatment decisions or a totally independent person to do so on their behalf.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs) 9:00 pm, 8th February 2005

I am grateful to the noble Baroness for speaking to Amendment No. 195. I shall address the concerns she has raised.

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.

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.

So, in a sense I accept the principle of the focal point behind the amendment, but I think that it is about directing people to the appropriate sources of support and help in that context.

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 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.

Photo of Lord Christopher Lord Christopher Labour

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-being—I refer mostly to elderly people—and 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.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

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 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.

Photo of Baroness Masham of Ilton Baroness Masham of Ilton Crossbench

What does the Minister think of the case of Leslie Burke, a man who has a degenerative brain condition? He has said:

"I want to know I won't be left to die".

There are many people with this sort of condition who are worried; they just want to live their life out whatever it may be, and they do not want to be left to die without a drink or some food.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

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.

Photo of Baroness Barker Baroness Barker Social Services, Non-Departmental & Cross-Departmental Responsibilities

I thank the noble Baroness for her warm response to Amendment No. 194. I was slightly disappointed that she did not text me to tell me that she was going to be so good to me.

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.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

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. 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.

Photo of Earl Howe Earl Howe Shadow Minister, Family, Shadow Minister, Health

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 exist—the noble Baroness, Lady Barker, just referred to the abuse of enduring powers of attorney—should 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.

Amendment, by leave, withdrawn.

[Amendments Nos. 193 to 196 not moved.]

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament 9:15 pm, 8th February 2005

moved Amendment No. 196A:

Page 31, line 17, at end insert—

"( ) providing to P's donee of a lasting power of attorney an annual set of accounts on the financial status of P."

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

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 relation to the property and affairs of the patient—now referred to as the client—as 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 possible—a 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".

In the following paragraph, the noble and learned Lord continued:

"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 management—or should I say mismanagement—of 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 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 PGO—I shall make further references to that later on—but 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.

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,

"have to agree with Lord Iliffe that poor record keeping and inadequate systems inevitably mean that there is a higher risk of fraudulent activity being able to take place".

Of the disappearance of the two larger sums of money—£10,928.51 and £6,731.01—the ombudsman stated that the disappearance of these funds,

"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:

"I think it highly unacceptable for it to be suggested that PGO's duty as a public body dictates an approach which means errors will not be rectified as soon as they are discovered".

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,

"extraordinarily insensitive and inappropriate, and merit the Ombudsman's strongest criticism".

At page 24, paragraph 54, the ombudsman went on to observe:

"The evidence clearly shows that Lord Iliffe's later comment to the Chief Executive (in their meeting of 30 January 2002) that he felt that Miss Laurence was being treated as a number was sadly apt".

This point cannot be overemphasised. The ombudsman returned to it in paragraph 57 on page 26, where he stated:

"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 they anticipated being able to provide such support, and whether he was satisfied that the training now being given to the PGO staff highlighted the need for staff to be sensitive to these sorts of issues."

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".

The changes which the PGO has made are summarised in paragraphs 27 to 29 of the ombudsman's report. The ombudsman here says:

"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 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.

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs) 9:30 pm, 8th February 2005

My Lords, the story that the noble Lord, Lord Kingsland, just told us about the problem that Lord Iliffe had relating to Miss Laurence's money not being looked after by the PGO raises serious questions. Indeed, the only doubt is whether the noble Lord's proposed amendment goes far enough. The gross incompetence of the PGO as shown in the ombudsman's report is quite extraordinary. Indeed, it suggests that things have gone so far that disciplinary proceedings against members of the staff for the complete failure to carry out their duties would have been called for.

There is of course a problem. The PGA is a very small department in terms of the Government as a whole and is of very little interest or concern to other parts of the Government. The DCA should consider the whole future of the PGO's fund management duties. The question certainly arises whether the fund management functions would be better if they were contracted out and the PGO were left simply with a regulatory function. This matter goes beyond anything that can be dealt with in this Bill and I hope that the DCA will examine the case carefully and conduct a proper investigation into long-term solutions. Otherwise, there is a risk that whatever improvements have now been achieved, in a few years' time, the inertia and incompetence may creep back again.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, I completely understand why the noble Lord, Lord Kingsland, felt that it was so important to put that very grave story on the record. He has been an assiduous champion of that particular case, but I know that his concerns go very much to the heart of the whole administration of the Public Guardianship Office. We are very grateful for the opportunity tonight, in the context of the amendment, to respond to the issues. I can take issue with nothing that he said about the course that that case took—the grave errors of judgment, degrees of incompetence and delays. In the ombudsman's report, he made it clear in sharp language that he was pretty shocked by what he found. It would be tempting to go into some of the detail and quote some of the more positive things that he said in response, but we completely take the point. Everything that the noble Lord said about the quality of care we completely endorse on this side of the Committee.

The noble Lord laid out his case, and I was going to make a general case in response to the notion of the public trustee. However, first, let me just say that not only do we regret the entire saga but we very much take the point that great improvements have come from it. We are very pleased that the case in question was resolved. We are even more pleased that the opportunity was taken to correct processes and systems, and the ombudsman himself paid tribute to that. The noble Lord did us the courtesy of spelling out some improvements that have been made; I could mention quite a few more, as I have a list in the back of my file which goes further than that. The purpose is to keep those matters on the record.

The changes that have been made in accounting processes, accountability and the way in which case working is dealt with are significant improvements. More exactly, the use of call centres has been abandoned and calls are now routinely directed to case work teams. That is a small change, but one that will make a big difference to the individual.

On a point made by the noble Lord, Lord Goodhart, we have created in this Bill a Public Guardian whose functions will be different; he will have no functions of receivership. Those functions are now no more. He has three functions: he will act as a registration body for LPAs, as a supervisory body for deputies and LPAs and as an investigative body. He will be a regulator. There will be no more confusion, in fact. Following from that saga, we now find that his functions as the receiver of last resort are being exercised in only 240 outstanding cases—down from 3,000.

We fully expect, by the time the Bill becomes law, that there will be no more such cases. That will be combined with the degree of supervision which will be built in to the system, when there will be a process of consultation before we settle on the details. I should very much like to tell the noble Lord, in view of his professional and personal interest, that we would very much welcome his participation in that process to determine what is the right degree of supervision and how it is best managed. That is something that officials and Ministers would warmly welcome. Those four changes represent my response to the "stall" as it has been set out.

In terms of the accounts in general, in view of what I have just said, the Office of the Public Guardian produces accounts only when it is acting as the receiver of last resort. As I have said, there are now only 240 such cases. Under the Bill, we are not going to be a receiver or deputy and we will not be in the position of handling accounts. That will be the responsibility of the LPA or deputy.

The amendment presumes that the Public Guardian provides accounts to the donee, but the Public Guardian has never done that for enduring powers of attorney. So the amendment is slightly misplaced, in that sense, because the Public Guardian is not in a position to do that. To follow the logic of the amendment, it would require the Public Guardian to receive accounts from all the donees of LPAs to check them, then report back to the attorney and take action. I know that in fact we are talking only about the financial donees, but the proposal is not necessary because what it suggests is not done.

I reiterate what my noble friend has said several times: as regards the role of LPA, these are often private family matters. We must be careful as regards the degree of intrusion that we encourage and enable. Certainly we want to make attorneys aware of their responsibilities and we will provide clear guidance on that. However, we do not want to deter people from agreeing to take on what can be a very sensitive and difficult responsibility by being too heavy-handed.

The important thing is that there should be safeguards in the system. Significantly—I hope that this will reassure the noble Lord—donors of financial LPAs will be advised that they can, if they so choose, stipulate in their financial LPA that they wish the attorney to provide annual accounts to the Public Guardian or to any other third party for checking. That is a front-line defence. Therefore, the Public Guardian can check accounts not only if he is asked to do so but also if someone raises a concern. Concerns can be raised by different sorts of objectors at all stages. If an objector raises concerns about a prospective attorney at the registration stage, the court may add a requirement for the donee to lodge accounts if that would alleviate the concerns of the objector. That is a second line of defence.

Anyone can raise a concern with the Office of the Public Guardian if they fear that an attorney of a registered LPA is not acting properly. The court will then be able to direct that the attorney should lodge accounts. We believe that is robust. They could be "one-off" accounts or annual accounts. They could be lodged with the court, a solicitor, an accountant or, indeed, a third party.

In the broader context the code of practice makes it clear to financial attorneys that they should keep accounts. We intend to issue guidance to reinforce that message. Obviously, the nature of the accounts will depend on the nature of the finances and the degree of sophistication and complexity—we would expect that. We also intend that the staff at the OPG will be able to advise the attorney on the nature of the accounts that he should keep. That may take the form of booklets to be distributed in different places.

The code will let attorneys know that they have a fiduciary duty to act in a way that benefits the donor and not the attorney. Attorneys will be reminded that they are under a duty to have regard to the code in all its legal force and that failure to do so could be raised in any court. They will also be told that the Public Guardian or the court can ask them to submit accounts at any time. That addresses the narrow point of the amendment. The broader point is that this is a function which now passes away from the Public Guardian with the loss of receivership functions.

As I said, we take very seriously what the noble Lord said. Clearly, there is a fresh spirit and intent with regard to the Public Guardian. It is sad to reflect that some of those lessons have had to be learnt in rather tragic circumstances but the Committee can have full confidence that there will be much better supervision in the future.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament 9:45 pm, 8th February 2005

I am most grateful to the noble Baroness for her very full reply in response to my opening remarks.

First, I thank the noble Baroness very much indeed for effectively endorsing the conclusions of the ombudsman's report. For the rest of our debate on these amendments I would like to draw a line under all those issues. Let us assume that the confidence that the ombudsman now reposes in the changes in the accounting procedures and so on in the existing PGO have had the effect that the noble Baroness hoped they have had. Let us now concentrate on the question of political accountability, under which heading I include issues such as the one that we are dealing with under this amendment.

I readily accept that the amendment may not be appropriately worded for the situation that is envisaged by the Bill. I must say, at the outset, that it was only late this afternoon that I appreciated that the Bill envisaged that in future the PGO would not handle any client money itself. I was under exactly the same misapprehension as the noble Lord, Lord Goodhart. The noble Baroness said, "Well, by the time the Bill becomes an Act the remaining 240 trust funds will have been passed to the private sector". I wonder why the noble Baroness is so confident about that. She cannot be so far-sighted as to know exactly when the Bill will become an Act. What makes her so certain that it will be possible to find a home for these 240 remaining funds by that date, which may well be a few months away? Looking at the noble Baroness, Lady Ashton, I expect that she wishes that it were a few weeks away.

The purpose of this amendment is to give the country confidence that these new trust funds, handled by the private sector, are being properly and responsibly managed in accordance with the principles of trust law. The single most important characteristic that is required in relation to those principles is transparency. Everyone involved in the caring process needs to know what is going on financially. For the vast majority of clients, there will not be much money available. Every penny that goes towards their welfare will count. It is vital, therefore, that we are confident that they are getting what they merit and, at the same time, that the money is being spent responsibly. That is what I am after in my amendment.

The noble Baroness talked about codes and guidelines. Indeed, it is appropriate that the detailed rules about how transparency and accountability are achieved ought to be contained in these codes and guidelines. I know that the noble Lord, Lord Goodhart, would agree that it would be nice for us to get a flavour on paper of what the noble Baroness is talking about. It would help our later deliberations on the Bill, on Report and at Third Reading, if we could have some sense of what we are talking about here in a bit more detail and about how this accountability and transparency will be established. I am not, of course, asking for complete drafts of these things; that would be unrealistic.

There is one other important thought to express in this context. Although the financial side and the caring side are in some sense distinct—the financial side looked after by the trustee, the caring side looked after by the carer and from time to time overseen by the visitor—we must ensure that the two are nevertheless integrated. That is something else that I am looking for from the Bill; or at least I am looking for in the codes and guidelines that are made under the Bill. It is no longer acceptable that the system of financial provision on the one hand, and the physical system of care on the other, should operate in completely separate compartments as they often have in the past. The noble Baroness has already impressed me with her grasp of the subject, so I am sure that her mind will already have turned to this matter. We need to look at that aspect of the situation as well.

The Committee has been extremely indulgent in hearing me out on what has, after all, been the first of these amendments. I promise to meet the undertaking that I gave earlier that I will be more telegraphic in the way in which I approach the remaining amendments.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip) 10:00 pm, 8th February 2005

The reason I have confidence that we will meet the target of getting rid of all the cases is that, since 2000, we have placed 3,000 cases with private receivers. Over the past 10 months—since April 2004—we have placed 520 of them. We have a good track record and people are coming forward.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

I entirely accept that. I think that the noble Lord, Lord Goodhart, and I agree that this is the direction that events will have to take. However, as from last November, we have the evidence of the ombudsman's report; so we know that we have to be especially wary of transferring the remaining 240 accounts unless we can be absolutely certain that the system of accountability and transparency will be in place. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

moved Amendment No. 196B:

Page 31, line 25, at end insert—

"( ) Regulations under this section may not be made unless a draft of a statutory instrument containing the regulations has been laid before and approved by both Houses of Parliament."

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

The amendment was suggested by Age Concern. It enables me to revisit the issue of LPAs, which may be entered into as a result of undue influence from those with criminal intent where the fact of undue influence might not otherwise be spotted. What I am worried about, and what worries Age Concern, is the possibility of a serial scam involving the same individual preying on a series of elderly people—perhaps using the same complicit witness each time—with the objective of stealing from them.

The purpose of the amendment is to make sure that the Public Guardian would have a duty to cross-reference key data in the register of LPAs. In that way, he would more easily be able to identify such scams if the names kept cropping up. I hope that the Minister will be able to give some sort of reassurance about the systems that will be in place to meet the kind of concerns that I have outlined. I beg to move.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

I shall speak to Amendment No. 196BA. We are alive to the concerns that the noble Lord has raised. Age Concern is greatly worried that abuse is minimal and that vulnerable people have maximum protection.

Clause 56(3) lists the subjects on which regulations may be made about how the Public Guardian carries out his functions. The amendment would add to that list of functions, which in our court makes for a problem initially. The amendment refers to the cross-referencing of data contained in the LPA instruments that the Public Guardian will hold on his register of LPAs.

That is not necessary, primarily because there is already provision for the Public Guardian to cross-reference in situations where it will be most effective. For example, if someone applied to be a deputy, the Public Guardian could check to make sure that there was not already an attorney in place. If the concern is about serial donees, he could check to see whether the donee was acting for other donors. We have provisions to meet those concerns.

We also have a problem about the notion of such a specific function of the Public Guardian. His functions are essentially to register LPAs and to investigate concerns, not to cross-reference information. That might be enabling, but is not a function. Those extra safeguards are in the Bill, and to add a more sophisticated level would probably be disproportionate. When we come to consider our systems for developing and supervising, we shall be looking at robust IT systems that can meet the problems identified by the noble Lord.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

I am grateful to the noble Baroness for her response. In those circumstances I shall do nothing more than beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 196BA not moved.]

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

moved Amendment No. 196C:

Page 31, line 45, at end insert—

"(7) The Public Guardian acts as trustee in respect of monies he receives on behalf of P.

(8) In exercising his functions as trustee under subsection (7) the Public Guardian must exercise such care and skill as is reasonable in the circumstances, having regard in particular—

(a) to any special knowledge or experience that he has or holds himself out as having, and

(b) to any special knowledge or experience that it is reasonable to expect of a person acting in the course of that kind of business or profession."

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

In view of what the noble Baroness said about the Public Guardian no longer acting as a trustee in respect of moneys he receives on behalf of a client once the Bill is on the statute book, it is plain that Amendment No. 196C is surplus to requirements. I wonder whether the noble Baroness will confirm my interpretation. I beg to move.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

The noble Lord has saved me hours of time explaining it again. He is absolutely right. I would also say that the Public Guardian has never been a trustee. There has been a confusion of nomenclature which has not least confused the noble Lord. I shall leave it there.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

I am grateful to the noble Baroness for informing your Lordships' House that the Public Guardian has never been a trustee in law. I understand that the Public Guardian is not a trustee but an agent in law. That is one of the reasons why I tabled the amendment. Had the Public Guardian remained responsible for the trust funds, it would be appropriate for him to have been subject to all the responsibilities to which a trustee in private law is responsible. That is now all water under the bridge. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 56 agreed to.

Clause 57 [Court of Protection Visitors]:

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

moved Amendment No. 196D:

Page 32, line 27, at end insert—

"( ) A Court of Protection Visitor must write a report after any interview with P conducted under this section and a copy of the report must be sent to P's donee of a lasting power of attorney."

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

The amendment would require the Court of Protection visitor to write a report after any interview with the client, and a copy of the report to be sent to the client's donee of a lasting power of attorney.

The amendment was foreshadowed in some of my earlier remarks about the importance of integrating the financial dimension of a client's life with the care dimension. The two are technically separate and ought to be properly integrated. In the light of what was said earlier, I wonder whether the amendment goes far enough. We may need to devise other ways of linking the work of visitors with donees of lasting power of attorney to ensure that the financial resources available not only match the requirements of the client but maximise the benefits that the client can get from the money spent on them. I beg to move.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, the visitors are very like the Lord Chancellor's visitors. They are the eyes and the ears of the court. They will visit people under the court's jurisdiction and provide reports about the circumstances and needs of those under their care.

The Public Guardian will work with the court to establish a strategy that will determine when these visits will be carried out and who will be visited. Perhaps I may write to the noble Lord to give him such detail as we have about the role of the visitors. This is useful background information. In view of the time, it might be helpful to the House if I were to do that. I shall address the amendment as it stands.

The amendment seeks to provide that in every case where a visit is carried out it is followed by a written report, and that a copy of it would automatically be provided to the donee. The most important thing to say to reassure the noble Lord is that it is already established practice—although it is not a mandatory requirement—for a written report of a visit to be supplied to the court following a visit by a Lord Chancellor's visitor. There are no plans to alter that. The written report will continue to remain a vital part of the process.

However, we do not want to see removed the right of the court to ask for a verbal report. That is the effect of the amendment. It is important to keep the flexibility because in situations of extreme urgency we need to allow the court to accept an initial verbal report in the interests of making a timely decision. It may well be in the best interests of that person if the visitor were able to provide a verbal report, which would then be followed up by a written report.

New terms and conditions for Court of Protection visitors will necessarily be required when the Bill is implemented. It is anticipated that such terms will allow for some flexibility. The important thing I should like to stress to the noble Lord is that if there is an oral report there will always be a written report following it up. But we do not want to take that flexibility away.

In terms of access, the noble Lord has a very important point. At the moment, Section 103(8) of the Mental Health Act provides that visit reports must not be released to any third party without the express consent of the court. But it is already established practice for the court to allow disclosure, and the court and Public Guardian recognise that receivers often find it reassuring to receive such a report. We would want to retain that policy of informed disclosure.

However, the amendment causes us a problem. Although my noble friend has highlighted the argument in favour of automatic disclosure, there will be cases where to do so will not be in the interests of the person involved. The court might commission a visitor to visit the donor because there have been allegations of financial abuse concerning the attorney. The purpose of the visit might be to interview the donor to gather information about the circumstances. Automatically providing a copy of the report would alert the attorney to the investigation and could well prejudice further progress. So that is the problem that we foresee. We do not want to fetter the discretion of the court and the Public Guardian. We need them to be able to exercise judgment when disclosure would be appropriate.

I am sure that the noble Lord will entirely take that point. I hope he feels able to withdraw his amendment on that basis.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

My Lords, I am most grateful to the noble Baroness for her reply. Clearly, in the case of Miss Laurence there was a complete breakdown between those who were supposed to be reporting on her care and those who were supposed to be providing her with her money. So, while I entirely accept the noble Baroness's reservations about my amendment, at the same time she must surely agree that the status quo is unacceptable and that, if my scheme is not a suitable way forward, then the obligation must be on the Government to come forward with an alternative scheme which will work.

As I understand it, at the centre of this Bill is the notion of care—the quality, suitability and relevance of care to the vulnerable person. The picture portrayed by the noble Baroness is one that we need to convert into black letter law, so that we can be sure that the person, the client, comes first. I should be most grateful if the noble Baroness would be prepared, between now and Report, to talk to me about the appropriate way forward. I am perfectly happy to withdraw the amendment, but I should not be happy for the Bill to be silent on the issue.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

Yes, I give the noble Lord that assurance and my noble friend and the chief executive of the PGO would be delighted to meet him to discuss those concerns. One thing that I did not say is that the Bill introduces a new provision, so that visitors will be able to visit donees and deputies, not just the client, as is the case at present. It will be possible to use that as a way to engage with those responsible for making decisions. That is a definite step forward, but we would be very pleased to discuss those issues, and any other concerns of the noble Lord.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

I am most grateful. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 57 agreed to.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

moved Amendment No. 196EA:

After Clause 57, insert the following new clause—

"THE BOARD OF PUBLIC GUARDIANSHIP SUPERVISION

(1) For the purposes of this Act, there is to be a non-executive board, to be known as the Board of Public Guardianship Supervision.

(2) The Board is to be appointed by the Lord Chancellor.

(3) The Board is to consist of no fewer than 9 members, of whom at least three shall be a registered medical practitioner and at least three shall be a certified or chartered accountant.

(4) It is the duty of the Board to supervise the Public Guardian—

(a) in the exercise of his functions with regard to this Act, and

(b) on any matter relating to or arising out of the exercise of those functions.

(5) The Public Guardian must make monthly reports to the Board on matters which the Board thinks are relevant and must provide the Board with such other information as the Board may reasonably require.

(6) If the Board has a concern about any aspect of the Public Guardian, including his discharge of his functions, the Board may make a special report to the Lord Chancellor and the Lord Chancellor must publish that report unless requested not to do so by the Board.

(7) The Board must prepare an annual report on its activities and that report must be included in the annual report laid before Parliament under section (Annual report)."

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

The amendment would create a new institution that I have chosen to call the board of public guardianship supervision. I hope that your Lordships will accept that I have the highest admiration for the noble and learned Lords, Lord Irvine and Lord Falconer, successively Lord Chancellors. Although I have had many political disagreements with them, I have admired the way that they have both carried out their work as heads of department.

Because they have so many preoccupations, it came as no surprise to me that the PGO came rather low on the list of their priorities. That was very much reflected in my dealings, especially with the noble and learned Lord, Lord Irvine, throughout the early and middle stages of the saga of Miss Laurence. Gradually, I formed the view that, although constitutionally the Lord Chancellor was politically responsible for the PGO, in effect, the political distance between the LCD and the PGO was just too great. There needed to be some intermediate institution, more focused on the work of the PGO with members of relevant experience.

That is by no means rocket science. We can all think of a large number of regulators in the United Kingdom that have a general responsibility to a particular department and a chief executive but a non-executive board between the two. I think, for example, of the regulation of much of our competition law. That seemed to me to be a suitable model for the new relationship between the LCD and the PGO.

So, in my Amendment No. 196EA, I have chosen to intermediate the board of Public Guardianship supervision, a non-executive board of no fewer than nine members of whom at least three should be registered medical practitioners and at least three should be certified or chartered accountants. I think that the noble Baroness can see what I am getting at by the composition—it is my idea of integrating the care function with the trusteeship function.

The Public Guardian will have an obligation to make reports—monthly, I say—to the board on matters that the board thinks are relevant and must provide the board with such other information as it may reasonably require. If the board has any concern about any aspect of the Public Guardian, including the discharge of its functions, it may make a special report to the Lord Chancellor who must publish that report unless requested not to do so by the board.

The board is the product of my experience of dealing, on the one hand, with the LCD, and on the other, through Lord Iliffe, with the PGO, in relation to one particular case. But it is clear from the report of the ombudsman that what happened to Miss Laurence had happened, to a greater or lesser degree, to 100 other people. In my submission, the Government will have to think up some very cogent arguments to dismiss this amendment. I beg to move.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

I am grateful to the noble Lord for his comments about my noble and learned friend. To borrow a word from the noble Lord's dictionary, I shall be "telegraphic" in my response.

I hope that, during our meeting to look at the issues, we might cover the noble Lord's proposal in more detail. My noble and learned friend has overall responsibility for the PGO, but as one of his junior Ministers I take some responsibility. It is very high on my list of priorities.

I recognise what the noble Lord seeks to do. Some of the elements of his amendment are already catered for in our work with our advisory board, which includes non-executive directors who bring direct business expertise. The board meets quarterly; it reviews performance; and it has a robust monitoring scheme, which is very important. It also has a business plan, an annual report against the performance targets, and an audit committee, chaired by a non-executive director who is an experienced accountant, and including representatives from the National Audit Office. At the moment I think that we should recreate that body in some form for the new office.

I accept completely the need for external expertise of a non-executive nature. I agree completely that we need financial expertise in particular on audit and accountancy. I agree that we need regular monitoring. I disagree, perhaps, on whether we need to set up a separate board, with all the costs involved, which ultimately would be borne by the clients, and on whether monthly rather than quarterly reporting is an appropriate use of resources.

Having listened carefully to the noble Lord's points, I ask him to withdraw his amendment. I hope that before Report we can discuss whether my proposals meet the noble Lord's underlying concerns, in order for him to feel reassured.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

I am most grateful to the noble Baroness for the manner in which she has responded to my proposal. I will be very happy, before Report, to discuss this proposal and her suggestion of an alternative model that tries to achieve the same objective. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

moved Amendment No. 196F:

After Clause 57, insert the following new clause—

"ANNUAL REPORT

The Lord Chancellor must lay an annual report before Parliament on—

(a) the discharge of the Public Guardian's functions;

(b) the extent to which, in his opinion, the objectives of the office have been met; and

(c) such other matters as the Board of Public Guardianship Supervision may from time to time direct."

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

The amendment would give Parliament an opportunity, at least once a year, to debate the affairs of the PGO and to make sure that the legislation in this House and another place, whatever its final form, is properly respected. It is a vital part of the chain of accountability, and I commend it to the Committee. I beg to move.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

I am entirely sympathetic to the intention behind the amendment. The Public Guardian should, of course, be accountable to Parliament and to the public for the exercise of his functions, and it is right that we should know how well he is carrying them out.

We fully expect the Public Guardian to report annually on the exercise of his functions, the extent to which the objectives of his office have been met and any other matters of interest. We would, of course, want to lay that report before Parliament, so I would like to consider more fully how we can make those expectations explicit in the Bill.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

I am most grateful to the noble Baroness. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 58 agreed to.

[Amendment No. 197 not moved.]

Clause 59 agreed to.

Schedule 3 agreed to.

Clause 60 [Interpretation]:

[Amendments Nos. 198 and 199 not moved.]

Clause 60 agreed to.

Clause 61 [Rules, regulations and orders]:

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

moved Amendment No. 200:

Page 34, line 12, at beginning insert "An Order in Council under paragraph 32 of Schedule 3 and"

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

Clause 61(2) says:

"Any statutory instrument containing rules, regulations or orders made by the Lord Chancellor or the Secretary of State under this Act, other than regulations under section 39 or an order under section 64 . . . is subject to annulment in pursuance of a resolution of either House of Parliament".

In other words, that is the negative resolution procedure. Paragraph 32 of Schedule 3 says:

"Her Majesty may by Order in Council confer on the Lord Chancellor, the court or another public authority functions for enabling the Convention to be given effect in England and Wales".

That is the application of the Hague Convention on the International Protection of Adults.

The Order in Council that enables a convention to be given effect to in England and Wales ought to be subject to the negative resolution procedure. But since it is not a rule or a regulation, nor is it an order made by the Lord Chancellor or the Secretary of State under the Act, it appears that it is not subject to any parliamentary procedure under Clause 61. It is probably appropriate that it should be subject to the negative resolution procedure. I beg to move.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip) 10:30 pm, 8th February 2005

I am grateful to the noble Lord for his magnificent job in introducing his amendment. He is right. Amendment No. 200 would make any Order in Council—to confer functions on the Lord Chancellor, the court or another public authority, but only for enabling the Hague Convention on the International Protection of Adults to be given effect in England and Wales—subject to the negative resolution procedure.

I understand that there are concerns that an Order in Council made under this authority would not be subject to any parliamentary procedure. Looking at the relevant provision in the Bill, I sympathise with the principle behind the amendment. I am certainly prepared to revisit the issue at Report and bring forward an appropriate amendment. It is very useful to have had that short debate. The Delegated Powers and Regulatory Reform Committee already thought that this power was subject to the negative resolution procedure; we intend to make that so.

Amendment No. 201 would make any regulations under Clause 39 to adjust the role of the independent consultee service subject to the negative rather than the affirmative resolution procedure. It is unusual for Members of the Committee to ask the Government to move from affirmative to negative procedures.

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

If it is convenient, perhaps I may deal with Amendments Nos. 201 to 203. Amendment No. 201 probably got there in error, so it can be disregarded. Amendment Nos. 202 and 203 deal with a question that was raised by the Delegated Powers Committee. As a former member of that committee I of course always support, in principle, its recommendations.

I think the committee got it wrong on the code of practice that we dealt with last week. Paragraphs 6 to 8 of the report say:

"Schedule 3 gives effect in England and Wales to the Convention on the International Protection of Adults . . . There are delegated powers at paragraphs 32 and 33 of the Schedule, each subject to negative procedure".

As we have just seen, of course, paragraph 32 was not subject to negative procedure; it was not subject to any procedure at all. After describing what paragraph 32 does, the report continues:

"In addition, paragraph 33(1) enables the Lord Chancellor by regulations to make provision: (a) giving further effect to the Convention; or (b) otherwise about the private international law of England and Wales in relation to the protection of adults. By paragraph 33(2)(b) the regulations may amend Schedule 3 to the bill. So this is a Henry VIII power, albeit a very limited one.

So far as the power in (a) is concerned, we consider the fact that the provision must be to give further effect to the Convention to be a sufficient limitation to justify the negative procedure. But the power in (b) is not restrained in a similar way, nor is there a satisfactory explanation of this power in the memorandum . . . We suggest therefore that the house may wish to invite the Government to explain more fully the purposes for which the apparently wide power in paragraph 33(2)(b) is needed; and we recommend that, in the absence of a satisfactory explanation, the affirmative procedure should apply".

I therefore invite the Government to explain more fully the purposes for which the apparently wide power in paragraph 33(2)(b) is needed.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

I am sorry that the noble Lord continued reading to that point. I can give him a solid answer on what we are going to do but I do not have briefing on why we are doing it at this point.

Amendments Nos. 202 and 203 would make any regulations giving further effect to the Hague Convention or otherwise about the private international law of England and Wales in relation to the protection of adults made under paragraph 33(1)(b) of Schedule 3 subject to the affirmative resolution. As the noble Lord said, currently the negative resolution procedure would apply. Again, these amendments have been prompted by the report of the Delegated Powers and Regulatory Reform Committee.

The committee recommended that while the negative resolution procedure was the appropriate level of scrutiny for regulations made under paragraph 33(1)(a) of Schedule 3, the affirmative resolution procedure might be more appropriate for the regulations made under paragraph 33(1)(b) of Schedule 3, given the wide powers it entails. We accept that paragraph 33(2)(b) regulations may indeed amend Schedule 3 and that therefore this is a Henry VIII power, although quite a limited one.

We intend to revisit the regulations under paragraph 33(1)(b), taking into account the recommendations of the Delegated Powers and Regulatory Reform Committee, and bring forward the appropriate government amendment on Report. However, the negative resolution procedure already afforded under paragraph 33(1)(a) is sufficient; we do not have a problem there.

I am tempted to say that I will write to the noble Lord and explain a little more about why we need the power but I am not entirely sure that I would get much support from my officials. Anyway, I will advance that promise.

Photo of Lord Goodhart Lord Goodhart Shadow Minister, Law Officers (Constitutional Affairs)

I am grateful to the noble Baroness. In the circumstances, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 201 to 203 not moved.]

Clause 61 agreed to.

Clause 62 agreed to.

Schedule 4 [Provisions applying to existing enduring powers of attorney]:

Photo of Baroness Greengross Baroness Greengross Crossbench

moved Amendment No. 204:

Page 52, line 8, at end insert "notwithstanding"

Photo of Baroness Greengross Baroness Greengross Crossbench

In moving Amendment No. 204, I shall speak also to Amendments Nos. 205 and 206. As it is the last grouping I shall be very brief. One can think of dreadful puns about enduring debates and lasting for ever and other horrible things, but I shall be quick.

The amendments concern the transitional arrangements in regard to enduring powers of attorney and lasting powers of attorney. They seek to ensure, first, that attorneys under enduring powers of attorney should come under the provisions of the Bill and should have the same obligations to follow its principles as anyone else. There is concern that Section 1 does not apply to EPAs.

The second point is that, given the long lead-in once the Bill receives Royal Assent, individuals will be unsure whether they should continue to use an EPA or wait until the LPAs come into force. We are dealing with people who have full capacity when they appoint someone and then lose their capacity afterwards, perhaps many years later. Where a person has not lost capacity, there should be a simple way of converting the enduring power of attorney into a lasting power of attorney to encourage more people to come into the new system. I beg to move.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

We admire the intention behind the amendment to make existing unregistered enduring powers of attorney subject to Clauses 1 to 4 of the Bill. It would make them subject to all the principles of Clause 1, the key principle of best interests, and also to the provisions for assessing capacity in Clauses 2 and 3.

We very much sympathise with the noble Baroness's intentions. She has made them clear throughout the Bill and her expertise has been invaluable to us in ensuring that we stick to the principle of best interests. It seems only right that EPAs should follow the same principles and standards of conduct but, for logistical reasons, it will not be possible.

People who execute EPAs prior to the implementation of the Mental Capacity Bill will have a legitimate expectation that they will be able to use the EPA in the future on the same basis on which it was created and that it will have the same legal effect. It would be unfair to change the rules. Indeed, we cannot apply Clauses 1 to 4 retrospectively to unregistered EPAs. Registered EPAs would not be affected by this amendment.

It would not only be unfair, it would also be impossible. The noble Baroness knows the situation very well. Changing the rules for EPAs would mean that we have to inform every donor and appointed attorney of the changes. But EPAs do not have to be registered until the donor loses capacity, so there is no record of every EPA in existence. We would be introducing a major unfairness. We have no way of contacting the people concerned or of informing them of the changes. I am sure that noble Lords will applaud the sentiment, but will agree that the problem is insoluble in these terms.

Amendment No. 206 would have the effect of converting EPAs into LPAs. It would cause confusion by leaving us with three types of power: the EPA, the converted EPA that is really an LPA, and the LPA. That is the problem with transitional arrangements. It would be far easier for people who have an unregistered EPA, provided that they have capacity, to tear it up and create a new LPA to replace their EPA.

Although the principles of the Bill will not formally apply to EPAs, all attorneys still have duties, including a fiduciary duty, towards the donor. The existing duties are very similar to LPAs, but EPAs are more limited because they relate to property only. We will be promoting the principles of the Bill as good practice for anybody involved with people lacking capacity. When the Bill is passed, we will encourage people to replace their existing EPAs with LPAs. We will address the problem in the information that we will put out. I hope that that will solve many of the problems that the noble Baroness foresees. It is not feasible to do what she suggests. I hope that she will be able to withdraw her amendment on that basis.

Photo of Baroness Greengross Baroness Greengross Crossbench

I thank the Minister for her reply. It would be excellent if people change over, but there will be a lot of people who are muddled and unsure. I hope that when we get to the next stage of the Bill, the noble Baroness will be able to give us more details about how people will be encouraged to make the change over. That would be extremely helpful. It will require some resources and a system for letting people know that, as the Minister said, a good way for them to change over from an EPA would be by putting it in the bin and starting afresh with an LPA. I look forward to hearing more about how that might be done and about making sure that people who have an EPA benefit from the provisions that the Bill introduces. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 205 and 206 not moved.]

Schedule 4 agreed to.

Remaining clauses and schedules agreed to.

House resumed: Bill reported with amendments.