Selection policy

The Mental Capacity Act (2005) was implemented in England and Wales in October 2007. It created a statutory office holder, the Public Guardian, and introduced a new Court of Protection as a court of record in its own right, superseding the old Court of Protection. It also extended ?the court’s jurisdiction to health and welfare matters.

The court has powers to decide whether a person who lacks capacity should be appointed a deputy. The ?Public Guardian administers a panel of deputies who are appointed by the court in cases where no one else is suitable or willing to act.

Review panel

The panel was established in 2000, with a clear purpose and remit, following a consultation by the Public Trust Office. Since then, the organisational and legislative environment in which the panel operates has been through a number of changes – most notably the implementation of the MCA. To support the changing environment and framework within which the panel deputies operated, the OPG reviewed and refreshed the panel by officially launching a new one in April 2011.

The panel was reviewed in 2009-10. A range of methods to gather evidence was used including interviews, workshops with a wide range of stakeholders and detailed analysis of OPG files and records. There was a number of key findings (see box).
Accordingly, the review made several recommendations. These included: reducing the size of the panel by at least half; drafting a new service level agreement (SLA) to help ensure that panel members were acting in accordance with the provisions laid out in the MCA; and that oversight of the panel should be increased by the creation of a new OPG team to provide support and deal with administration.

The OPG undertook a public recruitment campaign to create the new panel. Advertisements were placed in the national and specialist press. Applications were invited from the legal profession, third sector organisations, accountants and lay people. Over 600 applications were received by the closing date in October 2010.

The applications were then subject to a three-stage sifting process. The first ensured they met the minimum standards with regard to their knowledge and skills. Stage two measured the applicant against a weighted set of questions which focused on the needs of the client base.

Stage three comprised of a detailed review of the additional evidence in the applications and an analysis of the geographical spread of the applicants compared against the locations of the clients the previous panel were acting for. In the end, 65 applicants were appointed to the panel. A reserve list was also established should there be a need to replace any members of the new panel, or if there is a significant rise in the number of cases requiring panel deputies.

Gaining agreement

A new SLA was drafted by the OPG. The new SLA places much greater emphasis on the willingness of panel members to take on cases which are complex or contentious, or where the assets are low. This requirement was informed by the problems encountered with the previous panel, bearing in mind that three fifths of the cases referred to the panel fall under this category. By signing the new SLA, the members also agreed to additional monitoring by the new team as detailed below.

The final recommendation from the review involved the relationship between OPG and the panel. To enhance this relationship the OPG created and launched the panel deputy support team in April 2011.

The new team have a number of primary functions. The first is to ensure the panel database is up to date with ?the skills, knowledge and expertise the panel members possess. This allows the court to allocate new cases according ?to the needs of the client.
The criteria can include location, type of client (a dementia sufferer, for example) and the types of financial activity needed to be undertaken on ?the client’s behalf such as inheritance ?tax or personal injury claims. The new SLA places the onus on the panel member to keep the team updated ?with any changes to their circumstances that could affect their membership of ?the panel.

The team also monitors the panel members’ refusal rates to ensure there is no avoidance of low-value or complex cases. Unless the panel member has a valid reason (e.g. conflict of interest) to reject a case, they will be expected to accept any cases referred to them by the court. The support team may also write to them to check their reasons for rejecting a case, and to remind them that three rejections could ultimately lead to their removal from the panel.

While the general supervision of individual cases will remain with the relevant supervision team, the support team will take a holistic approach to monitoring the panel members. This will take the form of an annual self assessment and a full audit once every three years. The audit aims to verify the information provided by the deputy in the original application and will consist of: deputy providing an overview of the case management for cases selected by the support team, an audit visit carried out by a Court of Protection visitor, and finally visiting a sample of clients.

The support team reports to a manager who is responsible for monitoring panel members’ adherence ?to the SLA, and they have the power ?to vary, suspend or cancel the agreement and thereby terminate membership ?to the panel.

Reserve list

At the moment there are enough deputies on the panel to deal with the number of cases reaching the court. However, there is a reserve list that could be used by the OPG to appoint new deputies should ?the need arise in the future.

The appointment of the new ?panel is linked with a review of the OPG’s supervision allocation criteria. ?All panel deputies will normally be allocated to the lowest levels of supervision, unless specific circumstances dictate otherwise.

The clients at the heart of this process are often some of the most vulnerable members of society, making it essential that those empowered to make decisions on their behalf are effectively supervised and supported. It is essential that these clients have a deputy who can meet their individual needs, and that the appointment of a deputy is completed in a timely manner. The recruitment of a new panel, a new SLA and the creation of the panel deputy support team are delivering real improvements and we are pleased to report that arrangements are working well as the first anniversary of the panel approaches.

Panel review: key findings

•     The size of the panel made it difficult for the court to distinguish between the different skills of the various panel members and therefore difficult to select the most appropriate deputy for each case.
•     The number of panel members made it difficult for the deputy to maintain skills and knowledge as they were allocated a very limited number of cases. In 2009, 220 ‘last resort’ cases were referred across 179 panel members.
•     The biggest issue was that many members refused to take cases that were complicated or contentious. This left many vulnerable people in a state of uncertainty and caused delays in dealing with their affairs.
•     The relationship between the OPG and the panel needed to change and become more transparent. Additionally it was recognised that the support and supervision function of the OPG in relation to the panel needed enhancing.
•     The profiles used by the court to allocate the cases to panel members based on their skills needed updating in line with legislative changes.
•     There was little diversity across the existing panel. Nine out of ten panel members were solicitors despite the Lord Chancellor’s recommendations that the panel should have representatives from a wide variety of private and third sector organisations.

Peter Hartley-Jones is external communications manager, strategy and business development, at the Office of the Public Guardian