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The Parliamentary Under-Secretary of State for Justice (Mrs Helen Grant)
It is a pleasure, Mr Hollobone, to serve under your chairmanship today.
I congratulate my hon. Friend the Member for Chippenham (Duncan Hames) on securing this debate. I know that he has a keen interest in these matters, and I am glad to have the opportunity to speak about the work of the Office of the Public Guardian and in particular the Public Guardian’s role in supervising deputies appointed by the Court of Protection. This is a vital and complex area of work, and people who have lost capacity are often very vulnerable indeed. It is absolutely right and proper that we consider whether the arrangements that are in place to support and protect them are completely acceptable and operating as well as possible.
My hon. Friend raised issues that centre on the role of deputies appointed by the Court of Protection and then supervised by the OPG. It would be helpful if I outlined how the system of deputyship currently operates, before describing how the OPG is considering, through a fundamental review, some of the wider issues raised about deputies and how they are supervised.
The decision whether a deputy is required, and who the proper person is to take on that role, is entirely a judicial matter. The court will only appoint a deputy when the person concerned lacks capacity to make the relevant decisions and if no legal arrangement had been made while they still had capacity. In the case of financial matters, if there are assets that require management frequently the only option is to appoint a deputy.
Once a deputy is appointed, they must always act in the best interests of the person for whom they have been appointed. They must also ensure that the individual concerned is supported to make as many decisions for themselves as they can. Where the deputy has to make decisions on the person’s behalf, they must still ensure that the person concerned is involved in the process as much as possible. That is especially important in cases where a person may lack capacity to make some decisions but not others, or where their level of capacity can fluctuate or vary over time. These factors make the role of deputy a challenging one and the balance between allowing a person to make decisions for themselves and having to make a decision for them is often a fine one.
When a deputy needs to be appointed, they will often be a family member or close friend of the person lacking capacity. Normally, the court will consider appointing a professional deputy only in circumstances where there is no one else suitable and able to act. It may be that the person lacking capacity has no close family or friends, or it may be that a conflict of interest exists within the family, or that the size and complexity of the estate mean that a professional deputy is better placed to act on their behalf. Such professional deputies are entitled to charge fees and in complex cases these costs can be very high. However, the costs must be representative of the work done by the deputy. The costs charged by professional deputies are set out in a practice direction issued by the president of the Court of Protection. If a deputy wishes to claim over and above the fixed costs, their claim must be assessed and approved by the senior court costs office.
Once a deputy has been appointed by the Court of Protection, the Public Guardian is responsible for supervising them to ensure that they carry out their duties properly and act in the best interests of the person they are representing. This is a statutory duty placed upon the Public Guardian by the Mental Capacity Act 2005 and it is entirely right that, where the state has had to intervene to appoint an individual to make decisions on another person’s behalf, that individual is subject to adequate but proportionate oversight.
However, the Public Guardian does not have any role in directly managing the affairs of a person who lacks capacity. Their role is entirely to supervise and investigate. It is not within their jurisdiction to remove a deputy once they are appointed or to place limits on how the deputy exercises their powers. If the Public Guardian believes that a deputy is unable to fulfil their role or functions effectively, they may make an application to the Court of Protection seeking the deputy’s replacement or seeking to have limits placed on their powers.
In most cases, the Public Guardian will require the deputy to report to them on at least an annual basis. In the early stages of appointment, there may also be additional contact from the Public Guardian’s office to ensure the deputy is carrying out their duties properly and to identify any need for additional support. In certain cases, that may also involve a visit from an independent Court of Protection visitor who will report their findings to the Public Guardian. My hon. Friend may be pleased to know that almost 6,500 such visits took place last year.
I now turn to the work that is currently going on at the OPG as part of the Ministry of Justice’s “Transforming Justice” agenda. This work is being taken forward under Alan Eccles, who was appointed earlier this year as the new Public Guardian. The OPG is currently taking forward a major transformation programme that is designed to move its services on to a digital platform, to reduce the bureaucracy of the current paper-based system. The programme is focused squarely on placing the needs of users, including deputies and those whom they support, at the heart of the business, and on ensuring that the OPG is able to meet the demands placed on its services well into the future.
As part of that work, the new Public Guardian has launched a fundamental review of how the supervision of deputies is carried out. The aims of the review are twofold: first, to ensure that proper safeguards are in place to protect people who lack capacity and to ensure that decisions are made in their best interests; and secondly, to ensure that supervision is proportionate. That means focusing attention on those cases that require most support or where there are potential concerns, but allowing deputies who are operating effectively to do their job with minimal intervention. That might mean tailoring supervision to the needs of different kinds of deputies. Professional deputies, such as legal professionals and public authorities, might require a different type of supervision from lay people acting on behalf of family members. Also, a new deputy will often require additional support so that they understand their responsibilities and the support available to them.
Any changes will also need to be in line with the Public Guardian’s statutory duties, to which my hon. Friend referred, and must also consider the demands that the increasingly ageing population places on the OPG’s services. The OPG must be able to deal with the rising number of deputies in the future, as well as encouraging people to plan for the future by making lasting powers of attorney, which may remove the need for a deputy to be appointed at all. A key element of the work is the need to build a richer understanding of the deputies’ circumstances and their needs. I am pleased to say that the OPG has already surveyed some 1,300 deputies. In the coming months the OPG will conduct in-depth interviews with deputies to gain a deeper insight into their needs and the needs of those for whom they care.
The OPG will continue to listen to experts across the mental capacity field as it looks to improve its services. Building a clearer picture of its customers will help the OPG to design a more responsive and effective supervision regime, which I know my hon. Friend the Member for Chippenham will support.
Mr Bacon
The Minister mentioned the Office of the Public Guardian and his statutory powers. In cases of over-billing, once it has been stamped by the court, as the Minister alluded to, the issue for the Public Guardian is that, under present legislation, his scope to act is extremely limited, even if, as it may transpire, the over-billing has happened as a result of the Court of Protection successfully being misled by a deputy.
Mrs Grant
The issue that my hon. Friend raises in relation to over-charging vulnerable people is extremely important. It is worrying and it is one of the reasons why the new Public Guardian has launched a fundamental review into the supervision of deputies. My hon. Friend the Member for Chippenham raised the matter with me just a few moments ago, and I will look into it. I will write to him, and perhaps we can take matters forward.
I thank my hon. Friend for raising the issues. I also thank my hon. Friend the Member for South Norfolk, who I know has met the Public Guardian and who has extensive personal experience of the current system of deputyship. The issues are important and I hope that both my hon. Friends are reassured that the Government take matters very seriously. I will look carefully into the issues they have raised on accountability, visits, the statutory powers of deputies and panel composition. I hope they are both reassured that the OPG continues to look into this area to make further significant improvements.
Duncan Hames
I very much welcome the fundamental review that the Minister has advised us of this afternoon. She said that the OPG had been and would be surveying deputies as part of the review. I hope that she will ensure that the clients of deputies are consulted and interviewed and asked their views as part of the review in order that the true customers of the service have their voices heard.