Brian Bacon responds to the recent criticism of court-appointed deputies

So, professional court-appointed deputies find themselves in the spotlight once again. It is, though, disappointing that those casting the light appear to be somewhat selective over what they decide to focus on; there is a lot in the shadows which seems to get missed or ignored.

Ripped off

The BBC website ran a story at the end of October, which was also reported here on the PCA site, claiming that mentally impaired people and the vulnerable are being ‘exploited’ and ‘ripped off’ by court-appointed deputies.

Duncan Hames of the Liberal Democrats made representations to an audience of MPs that a constituent of his who suffered a brain injury thirteen years ago and who had received a damages award had been left nearly penniless as a result of the actions of a professional deputy.

This deputy had purportedly charged fees amounting to one-third of the constituent’s compensation, and had not fulfilled his duties, as he had not claimed the benefits to which the client was entitled.

Whether or not these allegations have merit, the reporting is interesting for what is not said.

How much was the claim settled for? Were deputyship costs properly and fully claimed as part of the damages award, meaning the constituent’s claim was enhanced by having a professional appointed? Neither is there anything in the article about the fact that costs are independently assessed by the Senior Court Costs Office (SCCO).

They would not allow high costs to be claimed unless there were fully justifiable reasons.

Mr Hames says he exhausted every available regulatory channel. This included an investigation by the Office of the Public Guardian (OPG) which concluded that there were no failings in the way the case had been handled. Despite this, Mr Hames is said to be calling for a shake up of the Court of Protection deputies system, saying that the regulatory reaction was one of “tacit indifference”.

Lack of recognition

I think this reaction is disappointing. Many professional deputies dealing with damages awards do an extremely good job in what can be very difficult circumstances.

Working with a brain-injured client and their family, while very rewarding, is a job which can be time consuming and challenging for a number of reasons. There is no recognition in the article of what is actually involved in managing substantial funds for a brain-injured individual. Costs can indeed be high in these cases, but not without good reason.

While there are certainly flaws in the system, I believe the current regime provides a good balance of protection for vulnerable individuals, on three levels.

First, there is protection against financial loss. On the one hand, there is the security bond which is required in every case. There is also secondary protection against loss, where there is a professional deputy, as they will also carry professional indemnity cover. This could undoubtedly be claimed on in a case of negligence.

Second, there is a process for reviewing the deputy’s actions and checking matters are being dealt with in P’s best interests. This is dealt with through the annual reporting requirements and the role of court visitors.

While there is undoubtedly an issue over resourcing at the OPG (as there is across most of the executive agencies of the MoJ), our experience, particularly recently, is that the OPG is taking this role increasingly seriously; we recently had a letter on one of our more complex cases with some very specific enquiries regarding the annual accounts.

However, there is also secondary protection through the investigative powers of the Public Guardian, although, given the comment about ‘tacit indifference’, Mr Hames was evidently not convinced by these.

Third, there is protection for P in respect of the charges of professional deputies. We cannot charge what we like, and this is absolutely right. The hourly rates we can charge are, in effect, set by the court.

The process of detailed assessment by the SCCO, while frustrating, slow, and inconsistent, is a safeguard we very much welcome as a necessary protection for the vulnerable whose affairs are managed in this way.

Ongoing process

I, and I am sure many others in this area of law, certainly welcome the accountability and support required for all deputies, both professional and lay. We are dealing with very vulnerable members of society, and such safeguards will always be needed.

It will always be the case that improvements can be made to resourcing at the OPG, SCCO and the court. The safeguards, protections and processes currently in place, should be reviewed and refined, and this will be an ongoing process.

However, I do not think a full-scale ‘shake up’ is needed. Mr Hames highlights one case in which there may have been some problems.

While we do not know the full detail, there was an investigation that concluded there were no failings in the way the case had been handled, and I’m not sure the situation warrants the rather sensationalist response that seeks to tarnish all professional deputies with the same brush.

Despite that, for those of us who act as a professional deputy for vulnerable clients, we are reminded that the area of work we deal with is a very sensitive one. If there is any chance that someone may be walking even slightly off course in their role as a deputy, reactions such as these will be repeated, and we will continue to find ourselves in the spotlight.

Brian Bacon is a partner at Thomson Snell and Passmore