The Office of the Public Guardian
The Office of the Public Guardian: celebrating its 10th anniversary
Sally Jones reflects on how law has developed to protect the most vulnerable people in our society. See also pages 22 and 23 of this issue.
About the author
Sally Jones is head of legal in the Office of the Public Guardian.
As my legal team celebrates ten years of both the Oÿce of the Public Guardian (OPG) and the Mental Capacity Act (MCA) 2005, we have been reflecting on how far we have come in legal terms, and that is not just in the millions of lasting powers of attorney we have registered.¹
One of the benefits of public sector legal practice is the opportunity to reflect on how law develops. Heads of legal are not always lucky in the clients they act for, but I have enjoyed the advantage of working for a progressive, proactive and committed Public Guardian.
In recent years, this has afforded me the freedom to pursue cases to clarify what the law means, and to maximise the benefits of the MCA for some of the most vulnerable people in our society. For example, the Public Guardian is particularly passionate about the rights of those with a deputy appointed for them by the Court of Protection. This seems especially important since these clients have not chosen (and often do not know) the people who make decisions for them.
Some of us may remember the dusty, archaic image that receivership had before the MCA came about and the routine nature (in my firm at least) of this area of work. A combination of the Public Guardian, the MCA and how the Court has honoured human rights law has hopefully put paid to that image. In its place, I have seen fundamental improvements in how OPG supervises deputies, and the impact both legally and in the practical sense.
You will look in vain for a definition of ‘supervision’ alongside section 58 of the MCA or, indeed, in case law. It might have been tempting for the Public Guardian to take a minimalist, traditional view of his role, ticking bureaucratic boxes but otherwise remain unchanged. Instead, the Public Guardian has instigated research, consultation and lively debate with OPG staff, deputies and stakeholders to establish what this actually means for the customer at the centre. As overseers of Court Orders, it also makes sense that we work closely with the judiciary to make sure that we are supporting their role and upholding justice.
In legal terms, we look at the MCA and the Court Order, but it will be obvious to practitioners that there is a point at which legal precedent from those sources trickles to a halt. In my team’s legal thinking, we have had to ‘import’ legal principles from agency, fiduciary and contract law to be able to help our supervision teams support deputies to act in P’s best interest, and to help OPG leadership formulate OPG’s aspirations for the future.
While the worst cases of financial abuse by lay deputies often make headline news, we have also looked more closely at institutional deputies like local authorities and third sector organisations, as well as legal firms whose aim is to provide deputyship services for profit. There seems to us to be an inherent tension in these cases which has to be managed.
Primarily, there is the need for a deputy to act as P’s agent under section 19(6) of the MCA. This brings in the fiduciary duties of good faith and not acting where personal interests conflict (at common law, but also more specifically mentioned in paragraph 8.58 of the MCA Code of Practice).²
In contrast, there is the economic reality for many deputies: reduced resources in the public sector; and a commercial environment where firms cannot afford to carry out work pro bono. This results in financial pressure to at least cover a deputy’s costs, and in most cases to maximise their profits.
In a normal agency arrangement, the principal would have the ability to bring the agency to an end, but P has no say in this. Similarly, if an agent overcharges the principal or acts in the agent’s interests, then the principal can make a claim against the agent. P cannot. In the case of legal services, the system is designed so that clients can challenge their bill and make complaints if the service is not good enough; P cannot do this either.
To us, this is where agency law and deputyship ‘rules’ cease to help. There is really no one else to hold the deputy to account in terms of challenging the way services are provided or what they cost. These are areas where the Public Guardian has increasingly felt uncomfortable sitting by while P may be taken advantage of. This has resulted in him instructing me to issue applications or, where we have become aware of an issue he wishes the Court to be aware of, seek permission to be joined as a party.
Most recently, the Court heard the case of Public Guardian v Matrix Deputies Limited and London Borough of Enÿeld [2017] EWCOP 14, 19 July 2017. In this case, the local authority had tried to outsource the deputyships which might normally have been appointed to a commercial provider. Unfortunately, despite support from OPG, improvement plans and finally an investigation, the Public Guardian was not satisfied that this arrangement was working for the Ps involved. Quite often, a local authority will only take a deputyship case where no family member exists or is suitable - effectively P is alone.
In that ‘extra-ordinary ’ case, HHJ Hilder agreed that the management by Matrix was unacceptable, and accordingly removed the company as deputies (para 42). It will, no doubt, serve as a warning to local authorities that outsourcing, referral arrangements and novel ways of meeting local deputyship demand are not always risk-free in reputational terms, and if entered into may need careful planning and monitoring.
In the earlier case of The Friendly Trust's Bulk Application [2016] EWCOP 40, 29 July 2016, the Court clarified too what costs a non-solicitor deputy was entitled to charge. These deputyships had caused discussion within OPG’s supervision teams and, to a certain extent, we could see the trust’s point of view, which was that the court costs structure seemed to assume that either a local authority or legal professional would be carrying out the work. While it never claimed to be a law firm, the Friendly Trust was not funded by the taxpayer in the same way as a local authority, and had to generate suÿcient income to survive.
Other elements of the case taken together were also worrying. There was a lack of understanding on the part of the trust of its deputyship duties, concerns about its payment of referral fees to the local authority, and its lack of success at accepting support from OPG’s supervision team.
In essence, we will look at any form of arrangement where it seems likely that you or I, as private individuals, would be asking questions, challenging bills or shopping around. For example, in a further unreported case, we prevented a solicitor’s firm that also owned an investment management company from appointing that third party by default.
Our deputyship standards, awareness raising and cost-estimate requirements are a result of this kind of thinking, ie, even though I may lack some financial management capacity, this is not a licence to overcharge me; sell me things I do not need; or take advantage of my weaker bargaining position.
The other benefit of public sector legal work at OPG is being able to take these sorts of cases potentially to benefit 59,000 customers, rather than one client, against opponents that might also be large organisations, important firms or ‘experts’. To the Public Guardian (and his lawyer) this seems to sum up what we are here for:
- to be the voice of the vulnerable;
- to promote the rights of people who have lost an element of mental capacity; and
- to carry the ‘Global Britain’ message promoting the rule of law in the mental capacity jurisdiction.
Long may this continue as we look forward to the next ten years. Happy anniversary OPG!
1 The MCA was fully in force from 1 October 2007.
2 Mental Capacity Act 2005 Code of Practice, available at: http://tinyurl.com/z5qjp6z