Delivering effective policy on protecting vulnerable people: A conference organised by QMW Policy Seminars

Adequate protection for vulnerable people has been an area of concern and dispute for some time as a balance is sought to protect the vulnerable while enabling them to live as independent a life as possible. Anne Edis, solicitor, TEP and chair of Solicitors for the Elderly, provides a round-up of the day’s proceedings, the key issues of the day and the message for the future, that is, the need for mental incapacity legislation.

This conference held by QMW Policy Seminars on 24 October 2002 was a little like the curate’s egg, i.e., good in parts.

Many of those attending, including the speakers, expected some statement from Rosie Winterton MP, the parliamentary secretary in the Lord Chancellor’s Department, on the progress of legislation on mental incapacity. In the event, it was clear that there are considerable problems in getting this legislation off the ground. This is a great pity as much preliminary and valuable work has already been done by a number of individuals, charities and professional groups. It was clear that without pressure being brought to bear about how urgently this legislation is needed, the benefit to the greater number of the vulnerable will be delayed by a number a very vocal minorities who will not be satisfied until they get all that they want from the proposed legislation. That, at least, was the opinion felt by the writer when speaking to others who attended.

It was a pity that the conference was not attended by more representatives of the legal profession who work in this field, as there was much in the morning sessions that was invaluable. In the afternoon, there was also a first hand opportunity to hear of the progress of the mental incapacity legislation and its implementation in Scotland.

The day was chaired by Diana Whitworth, the chief executive of Carers UK, and she proved to be excellent at setting the day into its context of protecting the vulnerable members of society who may, on many occasions, fall through the net of the present legislative framework. Delegate contribution was often helpful in highlighting issues and, in some cases, offering solutions. For example, Master Brian Hall from the Northern Ireland Court Service, (he sits in effect as the Master of the Court of Protection in Northern Ireland), gave some very helpful assistance. Clearly the impact of devolution is beginning to be seen in this field.

The morning opened with an address by the parliamentary secretary setting out government policy on mental incapacity and also setting out current projects in the field. From this address, it was clear that, while the government remains committed to the policy set out in Making Decisions in October 1999, we are still a long way from the implementation of that policy. Even steps proposed as interim measures have been delayed as a result of very vocal lobbying by some of those involved.

Making Decisions recognised the need for consultation and giving as much guidance as possible to those managing the affairs of the vulnerable. As a result, a series of leaflets went out for consultation and were, with one exception, agreed. The lack of agreement on the guidance for those with learning disability has delayed the issue of leaflets for relatives and carers, health care professionals, social care professionals, lawyers and the clients themselves. We are advised that publication is now planned for early 2003.

The pilot Court of Protection project will be evaluated in November 2002 and District Judge Gordon Ashton has been confirmed as deputy master for a further five years. It was also the case that, in light of concerns expressed about the present EPA regime, that consideration would be given to improvements to the present regulatory framework by using secondary legislation. One suggestion being the requirement to produce annual accounts, another being to change the form to preclude use prior to registration. A working party will commence work in November 2002.

From the floor, it was clear that many delegates would wish to see the joint introduction of new mental health legislation with mental incapacity legislation in order to offer maximum protection for the vulnerable. Disquiet was expressed from many quarters on the proposed mental health bill.

David Lye, chief executive of the Public Guardianship Office, led the second session. As he himself stated, his position was unenviable because of the enormous problems and difficulties that had resulted from the move to Archway Tower. He was very open in this respect and acknowledged that criticism, including that from the Solicitors for the Elderly survey, was fair. He discussed the historic legacy and explained how new measures were being brought in to overcome problems particularly in relation to contact, administration and getting answers because so many staff were inexperienced.

A number of recommendations had been made and these were being implemented starting with the need to recognise the difference between professional and lay receivers. Professional receivers and panel receivers will to be dealt with differently and the professional receiver will, in due course, be able to run their files as though they are attorneys. The call centres have been abolished and measures put in place to improve telephone contact and response. Work is to be closely monitored by team leaders and teams of four will work on the cases to improve familiarity. Additionally, better post management will help to identify more urgent matters and expedite things. The aim is to listen to their clients and their needs and tailor the management to each case. Other internal measures will lead to improvements of service and dealing with the backlog by November.

Anne Edis, chair of Solicitors for the Elderly, led the third session on Enduring Powers of Attorney and discussed not only the present regime and many of the problems experienced but also suggested ways to protect the client by using the existing forms to draft in accountability and protection clauses. She also discussed the use of letters of wishes and advance consents to disclosure. The misuse of EPAs was also flagged up in terms of choosing the right attorney and ensuring that both the attorney and the donor were clear as to the duties and powers.

The third session was split into two parts – the first led by Craig Ward from the Alzheimers Society looked at the vulnerability of people with dementia and the problems that frequently arise in the management of their affairs. He also discussed the different effects that Alzheimers can have both on the patient and their family He also dealt with the difficult issues of long-term care and health care decisions.

Professor Anthony Holland, Professor of Learning Disabilities at Cambridge University, conducted the second part of this session. It was extremely helpful in looking at the definition of fluctuating capacity and also dealt with questions of autonomy for those with learning disability and the relationship of common law and statute. This session was more oriented to the individual’s needs and also the need for both independence for those with a learning disability and the parallel need to recognise independence and ability to enter into decision making, give consent and self determination. The issues involved in health care were discussed as well as the right to refuse care.

Professor Holland was critical of present proposals on mental incapacity and felt that there was a need to draft the mental incapacity legislation in tandem with mental health legislation in order to reach realistic decisions. He also addressed the causes of varying and fluctuating capacity in a constructive manner identifying the following as contributory factors – mental illness, confusional states, head injuries, extreme anxiety and stress, alcohol/drug abuse and complexity of decision. He also analysed the framework for assessing and recording capacity albeit with a more strongly oriented medical approach.

Concern was expressed in this session about the medical assessments and the inadequacy of assessment in relation to Court of Protection matters. The question of best interests in treatment decisions was also considered. The conclusions were oriented to respect for the individual’s self-determination and to consider carefully the basic principles in relation to capacity.

The final session came from a representative of the Association of Directors of Social Services who deputised for Andrew Cozens, director of social services for Leicester. Les Sharpe is the chair of the Mental Health Special Interest Group of the British Association of Social Workers. His presentation included different perspectives as he dissected his variable roles from individual, approved social worker and other angles. He was difficult to follow and moreover, hostile to any legal framework and the protection that it offered. It may be that his experience of the legal framework has been unfortunate but it was difficult not to feel that, through the empowering perspective, he was missing the vital need to protect a much more wide-ranging group than those who fell within his professional remit and indeed, he did not find a lawyer’s challenge easy to accept.

He was highly critical of the present system overall and felt the statutory bodies did not act in the best interest of their clients and that, in many cases, the framework was used to control and manipulate the clients. The perspective presented was of a wholly interventionist and controlling legal framework that, while this might occasionally be the case, was contrary to the writer’s experience as a local authority lawyer.

The afternoon fell into two parts – the first looking at mental incapacity from the standpoint of the parent, the person with learning disability and the advocate.

This was very much a ‘rights’ session and was disappointing for many as it focused only on the rights of those with learning disability. The session was also treated as a lobbying opportunity to criticise everything being done in relation to the proposals set out in Making Decisions. The consultation on the guidance prepared by the LCD focused only on the iniquities of the leaflet on learning disability and failed to consider the greater good offered by this guidance for the majority. As such, it was very disappointing. This vocal lobby is blinkered in its approach and does not appear to want to look beyond its own remit.

This was the first time the writer has met this kind of approach in policy conferences and it did detract from what had been generally well presented earlier. It also exposed an unwillingness to come to grips with the legal framework, which covers a much wider group, for example, an understanding not only of capacity but its relation to community care and health care.

Other issues looked at age and the family as the main decision maker and the need to accept the concept of lifelong care. For this, the family, who often feel disempowered, could be better placed than the professional to set out what should be done. The rights issue ran throughout this presentation on behalf of Rescare, a charity founded by the current chair, Richard Jackson.

He was followed by Dr Jean Collins, director of Values in Action and Carol Lee MBE, an advocate with People First and herself some one with learning disability. Carol spoke personally and with great clarity of her experience both personally and as an advocate. She was clearly passionate about her work.

Dr Collins works very much on the rights side of learning disability. This session was again a politicisation of views and very destructive in its views of the present system. However, she did, quite rightly, clarify the discrimination experienced by those with learning disability in service provision and employment.

The greatest difficulty for Values in Action (VIA) would appear to be the way in which capacity is defined. VIA is against the best interests approach preferring supported decision-making on the grounds that many people would, with help, be able to make decisions at many levels. The lawyer would, I believe, be very concerned as to whether these could be wholly independent decisions bearing in mind how easily the vulnerable can be influenced and manipulated, particularly in relation to financial matters.

The final session was by Professor Juliet Cheetham, social work commissioner for the Mental Welfare Commission in Scotland. In effect, this was an analysis of the Mental Incapacity (Scotland) Act 2000. This was a challenging session as well as being informative and helpful, largely because it demonstrated what had worked and what had not. The principles were helpful: that intervention must benefit the person, that intervention should be the least restrictive so as to be beneficial and that account must be taken of past and present wishes. The perspective that the views of relatives, carers, guardians, attorneys, and people identified by the adult and anyone has an interest helped us to understand how the system works. The issues of evidential material are important in case management.

The Act is not an all or nothing set of provisions. It requires attention to be paid to what people can do as well as to where they need help and assistance. Equally, capacity is not set in stone. The Act also requires solicitors to assist in resolving matters. Good information is available to advise the attorney and family so that health care and welfare as well as financial decisions can be addressed.

Professor Cheetham made clear that these are early days and that, while much of the legislation works well, some changes and reviews would be needed.

The day was an interesting one, which promised much and for the most part delivered well. It presented a wide perspective for the majority who were there but for some of the professionals, as well as the laity, there was disappointment that there was no clearer timescale for the mental incapacity legislation.

Nevertheless, such seminars are to be welcomed and practitioners should be aware of the QMW programme, which does deal with a wide-ranging series of presentations on policy matters. Are we any further forward? Possibly not, but the message from this seminar must be to talk to the lobbyists and help them to see the need for this legislation for the benefit of all who are vulnerable. We must continue to press for the implementation of this legislation and indeed, any secondary legislation and guidance as soon as possible.

Anne Edis is a solicitor, TEP and chair of Solicitors for the Elderly. She can be contacted at edisanne@aol.com. For further information on Solicitors for the Elderly or QMW seminars, visit www.solicitorsfortheelderly.com and/or www.qmwseminars.co.uk respectively.