» Raising Public Awareness
» Appointment of Receivers
» Workload Reductions
» Receivership Provision
» Fees and Funding
» Submission of Annual Accounts by Receivers
» Insurance Cover for Patients' Funds
» The Court of Protection's Visiting Service
» The Court of Protection and the PTO
Many of the PTO's difficulties in handling these two particularly sensitive areas of its responsibility are currently created before the Agency's involvement. They stem from a lack of public awareness of the role of the Court of Protection and the fact that the Court's directions are performed on its behalf by the PTO, an Executive Agency of a Government Department.
Individual receivers (who are often close relatives of patients) and organisations representing the interests of patients who contributed to this Review often commented that people only become aware of the Court of Protection and the PTO's responsibilities on its behalf when someone has to be adjudged by it as being mentally incapable of managing their own financial affairs. It is by then too late to do anything other than comply with the Court's directions, which include surrendering the direct responsibility for investing the patient's capital and being required to supply an annual account of their income and expenditure. Self- evidently the people concerned are, by this stage, often under great strain dealing with painful and sensitive family circumstances.
Some receivers find the Court's involvement an unwelcome intrusion into private affairs; others find it bewildering and difficult to comply with. Much of the frequently antipathetic reaction to the initial contact with the PTO is almost certainly due to the element of complete surprise, and in at least some cases, a realisation that all this might have been avoided had an Enduring Power of Attorney (EPA) being drawn up by the patient when they were in full possession of their faculties.
It is recommended, that in partnership with the Law Society and a range of suitable charities, the LCD ensures there is a continuous public awareness campaign to familiarise people with Ministers' responsibilities for those who are incapable of managing their own financial affairs, the role of the Court of Protection and the fact that its executive function is carried out on its behalf by an Agency. The opportunity should be taken to integrate all this information with the development and promulgation of the legislation that will flow from the Consultation Paper "Who Decides?".
Similarly, it is recommended that, using the same partnerships, the LCD in the future ensures a continuing public awareness campaign about the scope and purpose of EPAs. The approach can be similar to the now well- established one for explaining the importance of making a will and the outcome when someone dies intestate. Before this however, it is recommended that, as a matter of urgency, the views of the Law Society, specialised professional groups, major charities with expertise in this field and the highly experienced staff of the PTO are all utilised by LCD to help amend the existing EPA arrangements to prevent the abuses that the current unregulated system allows.
An EPA bestows virtually unfettered control of someone's financial assets once it is brought into force. While its objective (to put someone's financial affairs in the hands of an individual they have pre-selected, rather than surrendering them to the Court of Protection) fits entirely with the objective of keeping the state out of family affairs unless there is no alternative, if an EPA goes wrong the results can be catastrophic for the person concerned. Although comparatively rare, there are plenty of instances where the system has been deliberately or accidentally abused and getting the position rectified through the Court is a long and difficult process. Staff in the EPA section of the PTO as well as the Law Society and individual contributors to this Review all provided illustrations of such worrying cases, while strongly commending the EPA principle.
This Review has built on some of the representations about EPAs submitted in response to the Consultation Paper “Who Decides?” and has also been fortunate enough to receive new contributions from the Law Society (who have just issued revised guidelines to solicitors dealing with EPAs), Action on Elder Abuse and particularly the Association of Contentious Trust and Probate Specialists. The resulting best practice suggestions this Review commends are shown at Annex 4. They draw largely on the work of the Association of Contentious Trust and Probate Specialists and may need some further refinement, but these proposed enhancements to the current system would instigate essential regulation and oversight. It is the lack of them, which prevents current EPA arrangements from being confidently recommended to the public by Ministers as a practical alternative for some people to the Court of Protection. It is recommended that the EPA system is reviewed by LCD and the Law Society along these lines as quickly as possible not least so it can form a proper basis for Continuing Power of Attorney as envisaged in "Who Decides?"
It is recommended that a Registering Authority for EPAs is then set up as a discrete business unit within the Official Solicitor's Office. After, say, two years of operation, consideration should be given as to whether it would justify its own Executive Agency status, possibly on a trading fund basis in view of its clear, dedicated private income stream and discrete function. This Registering Authority might even extend to cover wills; problems with them are analogous to those of EPAs, and reflect today's mobile society and complex family arrangements. That is an idea somewhat beyond this Review's terms of reference however.
Another incipient difficulty the PTO inherits is the fact that the Court of Protection currently appoints receivers on fairly flimsy evidence about their willingness and ability to undertake what can be an onerous responsibility. All those with experience of the process (especially PTO staff who are in the frontline of coping with the results) testify to the fact that many people are appointed without any appreciation of the amount of work they will be involved in; the degree of administrative competence required to produce annual income and expenditure accounts and the restrictions the Court imposes on the use and investment of the patient's capital. This Review confirmed a widespread consensus that, at least for private individuals, there should be the opportunity to talk through all the implications before the Court makes a receivership appointment. A lot of difficult work for PTO caseworkers flows from the fact that someone has been appointed a receiver who either lacks the capacity to carry out the required accounting duties or who, when they subsequently learn of them, so resents the restrictions imposed that they approach the PTO in a spirit of confrontation.
It is recommended that the PTO work up a service level agreement with the Inland Revenue, or failing this the Probate Service (which is part of the Court Service), to allow all prospective private receivers to be interviewed (either face to face or by telephone) by one of their staff before the receivership application is considered by the Court of Protection. The person concerned should receive an explanation of what receivership duties entail, with emphasis on the requirement to produce an annual statement of account; an explanation of the PTO's role as the executive arm of the Court; the Court's visiting programme and a description of the sources of advice and help which will be available. Any misgivings which surface about the receiver's ability or willingness to proceed can be established at this stage. The interview should follow a consistent but short format and the recorded results would then go to the Court as an important piece of evidence to support its eventual decision.
These pre-appointment interviews (that might number about 4,500 per annum) would be carried out on the basis of a service level agreement which would be reviewed at least annually at senior level by the two Departments concerned. The possibility of a reasonably - local office as a venue for such a discussion for anyone who prefers this to a telephone interview would meet major criticism that comes from many quarters about the current exclusively-London base for the PTO's activities.
Raising public awareness, advertising a secure EPA system and trying to ensure suitable people are appointed as private receivers should collectively help reduce difficult casework and actual work intake in Protection and Receivership Divisions. In particular, if private receivers are competent to undertake the duty and they have had forewarning about their relationship with the Agency and the strict requirement to produce annual accounts, the PTO's service to the patients of the Court could be delivered more smoothly, to higher standards and more cost effectively.
A more direct way of reducing Protection and Receivership caseloads would be a regular review of the maximum level of assets which a patient holds before they are liable to the full Court of Protection jurisdiction. The level of £5,000 remained unchanged for nearly fifteen years until the PTO applied in August 1999 to increase it to £10,000 with effect from 1 October 1999. For some years therefore the £5,000 limit has brought more people within full Protection or Receivership controls than was essential, even though the PTO are not able to quantify the changes in caseload and staffing this latest change will entail. It is recommended that in future the maximum level be reviewed every three years and updated appropriately. Indeed, a more scientific examination of the present situation might show that the £10,000 limit can be increased within three years e.g. the figure might be pegged to the limit used by Local Authorities as a minimum capital sum to be retained by someone when nursing home fees are being charged.
It is recommended that the PTO take every opportunity over the next twelve months to review every existing Protection or Receivership case with assets of less than £10,000 and, wherever possible, commend to the Court the discharge of that receiver. The Court of Protection will be applying this increased level to their considerations of new applications from October 1999, and will not require the PTO to retain existing cases under its jurisdiction unless there is a strong reason to do so. The PTO cannot provide firm projections of the caseload and staffing reductions that would flow from this exercise, and are inclined to the view that they would be minimal. But it may be indicative that figures they have been able to produce show that over 80% of Receivership cases have an income of less than £10,000 pa.
As far as Receivership work is concerned, there is further scope for reducing its work. An examination of some of the cases fully justifies the widely held views of the experienced PTO staff concerned that their services are not always invoked as the last resort they are meant to be. Receivership work is costly, labour intensive and (as currently conducted from one office in Central London) not an ideal arrangement for the patient who may be based anywhere in England or Wales. There are too many cases where relatives exist who would be perfectly capable of performing this duty but either are unwilling to do so, or are locked into disputes with each other to the extent that they opt for the independence of PTO staff, rather than a professional nominee of their own. The Court therefore has no option but to make the patient a Receivership case.
Such circumstances should not result in the PTO having to assume Receivership responsibilities, which are often subsidised by the fees charged to other patients under current funding arrangements. However. the present fee- charging regime of the PTO does not discourage Receivership work in either of the foregoing situations to the requisite degree, nor will its recent simplification solve the problem. As its fees do not reflect activity or time spent, warring relatives can find PTO charges a bargain compared to what their interventions would cost if a solicitor had to handle them.
Additionally, many Receivership patients are in Local Authority accommodation and/or under the auspices of Local Authority Social Services and/or receiving Social Security benefits. It is recommended that the PTO regularise current arrangements into a mutually satisfactory partnership with the Local Government Association whereby, for patients in Local Authority care with simple and straightforward financial circumstances, someone from that Authority assumes full responsibilities as receiver. This remains the situation in many Local Authorities but, perhaps to minimise their costs, some are increasingly unwilling to keep the responsibility and are passing it back to the PTO. It is also recommended that the PTO regularise arrangements with the DSS's Benefits Agency over their Agents and Appointees so as to minimise unnecessary Receiverships. The results of these two nationally consistent agreements would be more cost effective overall and give a localised, more responsive service to the patients concerned.
As PTO staff freely acknowledge, it is extremely difficult and costly for them to carry out the full range of personal financial administration for an individual living hundreds of miles away who, self-evidently, often cannot give any assistance to the proceedings. The onerous responsibility of receivership work would be far better done by someone competent and qualified to do it who is based locally ie the nearest possible equivalent to a private receiver. It is recommended that, for all patients who truly lack a private receiver, the PTO should exercise this responsibility via a contractual arrangement, devised in conjunction with the Law Society and regularly reviewed, to provide the service via local solicitors. Receivership duties are a basic function for the legal profession and some 10% of private receivers are solicitors. A panel system of approved or accredited firms, (all with professional indemnity cover and including some with particular expertise in Court of Protection matters) should provide comprehensive coverage with an appropriate element of choice and competition throughout England and Wales. The standard of service for Receivership patients, perhaps the most vulnerable group of people under the PTO's whole jurisdiction, would then demonstrably be as high as that available to all other patients of the Court of Protection.
An essential supporting development would be an agreed fee structure so that solicitors would not be put off from taking such cases because of the absence of appropriate remuneration for their professional services. It is recommended that such fees should therefore be devised and periodically reviewed on the basis that they offer a reasonable return for the solicitors involved but are fully defensible to clients and the taxpayer. They must make provision for appropriate charges for disruptive or vexatious requests for activity by the patient's relatives: a regrettable feature of Receivership duties. Such fees would act as an encouragement to at least some relatives to take over the responsibility themselves or to reduce unnecessary requests for activity. There must also be the provision, for the protection either of the funds of the patient concerned or for the tax-payer, for a professional receiver appointed in this way to refuse to respond to third-party approaches they would categorise as being vexatious or litigious.
Certain activity and services must be guaranteed under this contract eg the prompt submission of annual income and expenditure accounts and a visit to the patient at least once a year. Infringements of agreed standards could result in the removal of the firm concerned from the accredited or approved Receivership panel of the Court of Protection; in serious cases of abuse it could of course lead to professional disciplinary action. This professional and locally- based Receivership service would be regulated by the PTO, who would review the arrangements not less than annually with the Law Society. The PTO would also be a contact point for complaints about poor service on the patient's behalf, as an addition to the Law Society's own professional arrangements. Some localised networks of solicitors specialising in Court of Protection work already exist and are known to the PTO and the Law Society. They can form a good source of best practice and advice for the creation and maintenance of a formalised national system.
The issue of the high cross- subsidy between Court of Protection patients (and Trust clients) who can afford to pay the fees of the PTO and those who cannot needs urgent resolution. The PAC has recently expressed great concern that such essential and unavoidable public services for individuals and families under a particular misfortune should have to be funded entirely by those of them who can afford to pay: several contributors to this Review have said the same. The situation is quite different from someone's assets being properly charged the reasonable costs of managing their financial affairs to a good standard. The current arrangements mean that, in many instances, people with modest means are paying far more than they need to for PTO services - they are paying for other people's services too. Not surprisingly, PTO staff have to handle many complaints about the basis and level of fees, even though the cross-subsidy element of them is not widely appreciated by patients, their families and other interested parties.
It is recommended that a simple, viable and auditable system of fees is worked out for the PTO's services utilising comparable experience in other Agencies. The level should not understate the work involved nor should it undercut the rate of fees charged for such work by professional attorneys through subsidy by the general taxpayer. There need be no question that services provided by Ministers, to high client standards and of good quality, should not be duly paid for by people who receive them if they can afford to do so, notwithstanding that they have a mental incapacity. The comparison can properly be made with people who must pay for the similar legal or financial services they need because of physical disability or other circumstances outwith their control. But for those people who fall below an agreed limit of having the financial capacity to pay either the full amount or anything at all for such services it is recommended that this support can be declared an essential public service and provided for as such.
It would of course be essential for the PTO to be able to calculate with an acceptable degree of detail what their chargeable work is in all such individual cases. It was a failure to be able to do this that lead in the early 1980s to the withdrawal of the reimbursement of case-specific charges through the Benefits system. Up until then, such costs had been added on to a person's benefit entitlement as an allowable expense, but with a change to a more generalised PTO fee structure that could not be precisely related to an individual case, the (then) DHSS was unable to sustain making such additions to benefit calculations: the PTO lost that source of publicly-funded income from thereafter. The Agency's financial and management information systems will need to be enhanced to allow them to properly support a business-based fee structure. Then, backed by auditable calculations, the cost of such services in specific cases could appear as part of the LCD vote. HM Treasury will need to consider proposals along these lines as part of LCD's Comprehensive Spending Review and it is recommended that the LCD starts such discussions as soon as possible.
Submission of Annual Accounts by Receivers
The PTO has had serious problems around the prompt submission of annual income and expenditure accounts by private receivers and the subsequent consideration of them by its own staff. As the Comptroller and Auditor General and the Public Accounts Committee have pointed out very clearly twice over the last five years, failure in this responsibility is particularly worrying because it leaves patients open to the undetected misappropriation of their assets.
The PTO has tried very hard to raise its performance to the required levels but has never managed to do so: the main stumbling block is the absence of automated systems of account control. Without a demonstrably effective mechanism for ensuring that accounts come in promptly and swift follow up action is taken against defaulters, the PTO is not going to be taken seriously by any receivers who are deliberately withholding accounts. Conversely, the lack of clear, firm direction towards a readily-available and supportive source of advice and assistance leaves unattended for far too long those receivers whose non- compliance is due to their inability to complete the necessary paperwork.
Rather than the PTO trying to invent a new and effective Protection and Receivership accounts collection system, it would be better if existing and established ones in other organisations were utilised. This approach would also offer economies of scale in staffing costs, especially if this task could be subsumed into a larger one. An obvious potential partner is the Inland Revenue. One of its core functions, performed successfully every year on a massive scale, is to collect tax and National Insurance contribution returns for the UK workforce. Many private receivers, as well as producing patients' accounts for the Court of Protection on the annual anniversary of their appointment, have to complete their tax returns after the end of the fiscal year. There is commonality between the information required, but it has to be produced on different timescales, in different formats and to two different parts of the public sector. Overall compliance with tax return obligations is much higher than compliance with the Court of Protection's requirements: the PAC and Comptroller and Auditor General have recently reported that 40% of receivers do not submit their accounts when they are due.
The Inland Revenue is content to explore ways in which it could assist the PTO and the Court of Protection to ensure that accounts from all receivers (including those who have been appointed by the Court to undertake full Receivership work) are submitted to the time and quality required. It is recommended that the PTO commence discussions to see what they can learn from the Revenue and what work the Inland Revenue might undertake for them under a service level agreement. At one end of the range of possibilities, the Revenue could provide consultancy services to help the PTO set up a new system, perhaps modelled on its own current systems and the training and management skills needed to support this could be made available. At the other end of the scale, the requirement for receivers to submit accounts might be put on a fiscal year basis; the Revenue might request accounts, record their submission and pursue overdue ones (even if it might be more straightforward for accounts to be sent straight to the PTO).
It might also be possible to arrange for an Inland Revenue Helpdesk to support receivers in the completion of their accounts for the Court of Protection in the same way as they offer support for the completion of tax returns. As another valuable source of assistance with accounts submission it is also recommended that the PTO reach service level agreements with those charities who have already expressed a clear willingness during this Review to offer help and advice on accounts completion to individual private receivers.
The use of effective, automated account submission systems would ensure that any receiver deliberately failing to submit an annual account would be speedily identified by the PTO. Little time need then be wasted in further fruitless attempts to obtain the necessary accounts, although it is recommended that the PTO explore the possibility of getting the insurance company who have issued a bond to cover a private receiver against the risk of their misusing a patient's funds to write them a warning letter; some recent joint work with the current brokers and the PTO indicates that such approaches, even at this late stage, can be effective in a few cases.
The Court of Protection needs to be sure that the PTO will refer back to it any receiver who has, against a strong background of requests, reminders and offers of assistance, failed to produce an account of their stewardship within, say, three months of the end of the year. Secure in the knowledge it has the alternative of appointing a locally based solicitor to take on Receivership duties, the Court would be able to act much more quickly to revoke a private receivership than it feels able to do at the moment.
If it can be agreed that the Revenue take on the work of requesting, receiving and pursuing all accounts, it is recommended that its responsibility should only extend to logging their receipt. Received income and expenditure accounts should be passed to PTO staff to check for completeness and to review the appropriateness of the way patients' funds were being utilised on their behalf. With all the problems of account submission dealt with, PTO staff dedicated to this important task should be able to meet any account clearance targets set for them by joint agreement of the PTO, LCD HQ, Ministers and the Court of Protection.
If the account submission exercise adopted the tax year's annual timetable, there would be implications for the PTO staff resources for this task. Workloads would reduce overall from their current levels because of other recommendations in this Review, but there would be a need for a peak of staff on accounts checking and review for the first three or four months of the financial year. This is not an unusual operational requirement. It can be met with a combination of overtime and augmenting the core staff that would be needed on these duties throughout the year with staff on short term contracts and/or on redeployment of permanent staff from other work that can be scheduled to fit this pattern. The numbers involved are fairly small: about 30 staff are currently dedicated to this work to cover Protection and Receivership cases, although they are not meeting their clearance targets.
To further strengthen the degree of protection that the Court can exercise through the submission of accounts, it is recommended that all private receivers are required to submit a final account after the death of the patient whose affairs they were administering. At the moment, the personal representative or the beneficiaries can opt for this not to be done and the PTO estimate that 90% of private receivers are not required to submit a final account under this concession. In some cases of course, the parties concerned are one and the same person.
As with the rest of Protection Division's duties, a balance has to be struck between proper control of patients' financial affairs and the administrative burdens placed on carers by receivership duties. But the period between an annual account and a patient's death is a critical time to ensure their proper financial protection; especially if it is known by receivers that no final account will be required. Like the PAC, this Review has found that receivers (whether private or appointed by the Court on a full Receivership basis) should submit a final account at the next routine exercise after the patient's death although an exception might be made if the death occurred within say four weeks of the previous annual return. The PTO can report to the Court any difficulties this requirement causes and they could jointly consider what further enforcement mechanisms might be required.
Insurance Cover for Patient's Funds
Another important control the Court of Protection can exercise on a patient's financial behalf is to ensure the underpinning of their funds by means of either an insurance bond taken out by a private receiver to cover the risk of misuse or the professional indemnity protection provided by solicitors or accountants. The sensitivity of this situation is obvious: most private receivers are personally close to the patient in all senses of this phrase. But the fact is that, whether by accident or design, private individuals do misuse or adversely affect funds they have been made responsible for no matter how closely related they are to the owner; and the Court of Protection's overriding duty is to the welfare of the patient.
Even though the numbers involved are small, the years 1997/98 and 1998/99 have shown a big increase in the bonds that have been called in. For the previous six years about seven or eight bonds had been called in annually, but in 1997/98 this jumped to seventeen and in 1998/99 it went up to twenty- seven. The brokers responsible for arranging a centralised bond, HSBC Insurance Brokers Ltd, told this Review that the most common reason behind these figures was a failure by the receiver to produce accounts. In these circumstances, the more disciplined and effective procedures for account submission proposed earlier should see a decrease in this trend. Nevertheless, it is recommended that the Court of Protection should require all private receivers to take out an insurance bond and confirm that all professional receivers have full indemnity. The cost is minimal against the protection such cover provides and the instances where patients' assets have been lost by either mistakes or abuse prove the need to ensure for recompense for them.
Incidentally, HSBC Insurance Brokers were originally appointed about fifteen years ago and have never had their contract subjected to competition. There is no suggestion whatsoever that they have provided anything less than a very economical and effective service to receivers, patients and the Court alike. Nevertheless, it is recommended that for sound and proper business reasons, the PTO should open the service up to an open competition, subject to all current best practice guidelines. The great majority of private receivers who currently take out an insurance bond already use the PTO's centralised facility and before the requirement is made compulsory it is advisable to put the arrangement beyond criticism. The provenly cost-effective option that will be the outcome can be confidently commended to all private receivers as a competitive alternative to their own individual insurance arrangements.
The Court of Protection's Visiting Service
The Court of Protection's visiting service to patients is one of its most important sources of confirmation that its responsibility for them is being properly discharged. This Review has concentrated on general visits to patients and private receivers because only these are the responsibility of the PTO, but the Court may subsequently care to review its medical visiting arrangements in its light. Visiting is an area that the LCD and the PTO has struggled with for years, even in pre-Agency days and, as the two PAC Reports make clear, the situation has shown little improvement for either Receivership or Protection Divisions' cases.
Visits to Receivership patients have been the PTO's responsibility for many years and some three years ago, the Agency took over from the LCD the responsibility of carrying out visits to private receivers for the Court. Senior Management decided to engage the services of six self-employed people to act as Lord Chancellor's Visitors to private receivers under similar arrangements that they used to try and provide a visiting service to Receivership patients. Shortcomings in the process of the award of these six contracts are highlighted in the latest PAC Report, although there is no criticism of the quality of work of the individuals now charged with the Court's general visiting programme. A flat fee per visit to a private receiver was fixed at £65.00 in 1996 and has never been increased: there are no additional travelling or other expenses. The PTO has kept a limit of £170,000 pa for this visiting service (which includes its administration) from when it received that sum on transfer of the responsibility from LCD HQ: it has not managed to increase that amount eg by efficiency savings from within its own resources. Fees for the eight self-employed people who carry out visits for Receivership Division are based on the gross income of the patient and are charged to them: they vary between £7 and £88. Four of the Lord Chancellor's Visitors also carry out Receivership Division visits. Two of them took on this responsibility after their appointment as a Lord Chancellor's Visitor but two were already engaged as a Receivership Division Visitor before their appointment as a Lord Chancellor's Visitor.
This Review has found that the concept that a handful of self-employed visitors can adequately cover a potential pool of 25,000 patients spread throughout England and Wales is fundamentally flawed and impractical. Even the maximum number of visits to private receivers which the restricted financial budget could afford has not been achieved over the last three years and, for entirely understandable business reasons, the people doing this work plan their trips with an eye to economy and the maximisation of their time. There is little capacity to undertake urgent visits within the sort of timescales that are required or to target particular sectors of the caseload that might be deemed to be at risk if the Court required this.
The latest PAC Report makes clear that the difficulties surrounding any statistical analysis of visiting work and the absence of any information database robs the PTO and the Court of the ability to track trends, target categories and devise risk assessments. There is moreover a discontinuity between the visitors and the PTO caseworkers, which means much of the practical benefit of this service is never realised. The annual visiting allocation is made right at the beginning of a financial year, to help the visitors plan their trips as efficiently and economically as possible. They therefore need quick and accurate reports about changes in circumstances eg death or a house move if they are not to be put in embarrassing and time wasting situations. They should also be advised of the fact that a patient might be potentially violent, that a receiver is engaged in a contentious piece of interaction with the PTO or any other piece of topical information on a patient's circumstances. None of these essential services is routinely available to them.
It should be a basic assumption that anyone contracted to carry out such important and sensitive work should receive adequate and updated training, guidance and briefing on how the Court and the PTO expects it to be done, although, as self-employed individuals, who (to some degree) competed for the work, the people concerned should be able to claim a degree of generic expertise. However, all the Lord Chancellor's Visitors (four of whom now conduct Receivership Division visits too) confirm that they received no specific visiting training on or after their appointment. The PTO provided one day of induction training for them in June 1996, to explain such things as the duties, the standards of service required, the PTO's role and administrative arrangements. Subsequently there have been two one-day meetings for visitors in November 1997 and 1998, but the visitors believe they would greatly benefit from more opportunity to exchange best practice, discuss difficulties with the PTO and generally feel more akin to the Court's work. Their individual reports often contain useful case-specific information but do not always result in the follow up action by PTO staff that might be expected; nor do the visitors get much by way of feedback once their report has been submitted.
From the other side of the fence, staff in Protection and Receivership Divisions (often not understanding the practical restrictions the visitors are working under) find the timescales involved in getting visits done to be inordinately long. They are not clear about the degree of priority to be afforded to visitors' requests for action and they are not formally required to analyse the global results of visits. Indeed there is a significant variation amongst the parties concerned as to the precise objectives the Lord Chancellor's general visits are meant to achieve. It is therefore little wonder that the visiting aspect of the Court of Protection's function has been deemed by the PAC to be significantly defective despite the clear commitment of the visitors and PTO staff concerned.
This Review has concluded that general visits to patients and private receivers is another area where the Court of Protection's responsibilities can best be directly discharged by other organisations who have the resources and systems already established, working under a service level agreement to the PTO. There are in fact three such sources that, subject to detailed discussions, might collectively offer a comprehensive and responsive service that would also allow receivers some degree of choice over who might visit them on behalf of the Court. This latter point is important. No matter how well-intentioned such a visitor may be and how much assistance they are able to offer a receiver in the discharge of their financial responsibilities for a patient, the fact is that they are operating in a regulatory role. As several contributors to this Review pointed out, this enforced intervention into family circumstances can appear an intrusive and unnecessary reminder of the State's control over what many regard to be a very private affair: the very title of Lord Chancellor's Visitors does not exactly help here. While in no way weakening the Court's requirements to use its visiting service for the benefit of its patients, anything which softens the process and makes it more effective should be beneficial to all.
it is recommended therefore that the PTO cease to try and directly provide a visiting service to patients and private receivers and move to a contract management role. It should start negotiations with the various charities who are now on record as offering the services of their own visiting welfare officers; with Local Authorities through their Social Services Departments and particularly if possible with the Benefits Agency of the DSS. Subject to the details of fees and service standards required, the utilisation of these large scale, established resources should enable the PTO to guarantee the Court of Protection the numbers, quality and speed of visits it requires through service level agreements. Specifically it is recommended that:-
all new private receivers should be visited within six months of being appointed;
all patients who have had to have a Receivership arrangement made for them (which this Review envisages will in future be performed by a locally based, approved solicitor), should receive a visit every year;
all patients requiring a Special Non-Medical Visit at the direction of the Court should receive it within say four weeks;
all other Protection Division patients should be subject to visits on an annual, random basis in sufficient numbers to provide an acceptable degree of assurance that the Court of Protection's responsibilities were being properly discharged. The caseload could be split into segments according to some risk analysis for this purpose, but the overall total could be, say, 10% of the established, routine load. This aspect of the Court's visiting programme should be well advertised amongst receivers. It should be clearly presented as having a sampling and analysis function to which all patients (albeit with some weighted categorisation) are equally liable.
If several sources of visitors can be established, receivers could exercise some choice eg whether to be visited by someone from one of the charities or from the Local Authority Social Services Department if they are already in contact with them, or from the Benefits Agency. If agreement can be reached between them and the PTO, it is recommended that the Benefits Agency would do all special, non-medical visits that are required by the Court, as well as routine visits where no preference has been expressed by the receiver.
It is recommended that the Court of Protection LCD and the PTO clarify the precise purpose of all types of visits, bearing in mind the developments that will flow from the implementation of the Consultation paper "Who Decides?". Certain basic requirements must be settled eg the patients themselves must be seen and a receiver cannot refuse to be visited without the matter being referred back to the Court; the same simple pro-forma covering all the necessary questions must be completed by all visitors, no matter from which organisation they come and the visiting service should not be used for chasing overdue annual accounts.
With the delivery of the Court's visiting programme done for it by other organisations under contract, the PTO can concentrate the IT system it is developing for its visiting service on being a control and analysis tool, albeit compatible with its contractors' systems. It is recommended that it submits an annual report to the Court of Protection covering the main findings from each year's visiting programme and uses it as a basis for helping the Court to consider amending its processes. It is recommended that this piece of work is featured in its Annual Report.
It is recommended that the details of the various service level agreements should be reviewed at least yearly at senior management level by the PTO and all organisations that provide the visiting service on its behalf. In that way, best practice, difficulties and the need for changes to procedures can all be properly identified.
It is recommended that all private receivers are told initially and then regularly reminded of the visiting programme, including the fact that a proportion of them will be selected on a random basis every year for visits purely to help the Court of Protection reassure itself that all its patients are having their financial affairs properly administered. This openness should not only make such visits more acceptable to private receivers but the possibility of being selected for a visit should act as a deterrent to those few people who might be tempted to abuse the financial authority they have been given.
The Court of Protection and the PTO
Within the last year or so, the PTO and the Court of Protection have laid the foundation for a much more constructive and mutually supportive relationship. As an Executive Agency, the PTO has always had the responsibility of providing Ministers with operational policy assessments by way of monitoring and contributing to the considerations of policy changes. Its relationship with the Court of Protection is analogous to this. In fulfilling the Court's executive functions for its Protection and Receivership responsibilities as well as its administration of minors' funds, the PTO has had the duty as well as the opportunity to report back on the practical effects of the Court's decisions. The Court should reasonably expect practical evaluation of and suggestions for improving its practices and procedures and in turn the PTO should expect the Court of Protection to place due weight on its reports of emerging difficulties, areas of public concern or ideas for modification.
As the PAC has observed, there have been instances where the PTO has agreed with the Court to improve its performance levels eg by ensuring that overdue accounts are followed up more quickly, but has not managed to fulfil its undertakings. In past years there were also instances where the PTO either passed on to the Court serious concerns by the PAC eg for targeting its visits, or gave warning of difficulties with its own capacity to carry out all the work that it had been tasked with in a particular year, but the Court did not make any amendment to its procedures as a result.
The current Master of the Court of Protection has been extremely sympathetic to the PTO's predicament over the last three years and to the changes in social attitudes towards people with mental incapacity. He has already begun to modify some of the Court's practices in a way that would slightly reduce workloads in both Protection and Receivership Divisions and Trust Work and give families some increased autonomy in how they employ modest assets on a patient's behalf. There have been recent joint discussions on the subject of improving accounts collection and review, although the Director concerned in the PTO still has serious reservations about its capacity to deliver what is required if the work has to be done in the existing way within previously-allocated resources. The PAC Report and this Review provide an excellent opportunity to raise the liaison between the Court of Protection and the PTO to a much more proactive and effective basis, to the benefit of the patients concerned.
It is recommended that the Master and Assistant Masters of the Court of Protection meet with the relevant Directors and Chief Executive of the PTO and senior LCD HQ officials to thoroughly consider all the implications of the PAC's findings and the agreed recommendations of this Review. An implementation programme should be devised and made the responsibility of the PTO's Director for Change. Significant changes in how the Court will be supported in its executive functions are inevitable: they should lead to a much more consistent, reliable and effective service. In turn, the Court could helpfully formalise some of the amended practices it has been increasingly operating over the last year or so. Any difficulties need to aired openly and, if they cannot be resolved for example because the Court believes it must be inflexible in a requirement which the PTO is certain it cannot fulfil despite its best efforts at prioritising resources or amending procedures, they must be brought to the attention of LCD for resolution.
Regular liaison meetings should allow the PTO to report back to the Court and draw its attention to possible areas of further constructive development. As a backdrop to all these discussions should be the implementation of the Consultation Paper ‘Who Decides?'. In particular, the needs and wishes its research identified among people with a mental incapacity and those individuals and organisations who support them should be given due weight. It is recommended that the Court, LCD and the PTO should explore all scope for amending the terminology covering the Court's responsibilities to remove any stigma and avoid archaic and off-putting terms. They should also explore the possibility of placing the Court of Protection within the Family Division of the High Court.
It is recommended that the Court of Protection produces a short annual summary of its work, including the executive and administrative support given to it by the PTO, with examples of particular difficulties that have either been overcome or remain a cause for concern. This clear feedback would be extremely helpful to the PTO, LCD HQ and Ministers in assessing the level of effectiveness achieved in helping the Court of Protection fulfil its difficult social responsibilities. It is recommended that this summary be included in the PTO's Annual Report.