THE GOVERNMENT IS PLANNING RADICAL REFORMS TO LAWS ON MENTAL INCAPACITY.

JON ROBINS ASKS WHEN IT WILL DELIVER.Last month Denzil Lush, the Master of the Court of Protection, which oversees the financial affairs of mentally incapacitated adults, shared a platform with the Lord Chancellor, Lord Irvine at a conference on the planned reforms to the laws on mental incapacity.Of course what delegates at the conference - jointly hosted by the Law Society, the Mental Health Act Commission, and the Royal College of Psychiatrists conference - wanted to know, was when the government intended to deliver on the legislative promise contained in October's policy statement 'Making Decisions'.But to the obvious annoyance of mental health and legal practitioners alike, the Lord Chancellor declined to name a date and he had left the building by the time the audience had an opportunity to voice its frustration.But Master Lush, sitting by the Lord Chancellor's side, had a unique opportunity.

'I said "I don't mind how long you wait as long as you get it right"', he recalls.

The 48-year-old solicitor has doubts about the proposals.'I don't think we've sorted out the extent to which people should be allowed complete autonomy and independence,' he says, adding that there needs to be a public debate.The court looks after the affairs of 38,000 patients falling into four categories: the elderly mentally infirm; the mentally ill; people with learning difficulties; and those who have suffered brain damage as a result of accident or assault.The government's reforms include a new test for capacity, legal safeguards for carers, a new continuing power of attorney (CPA), and the end of the Court of Protection in its current form.But Master Lush's concerns do not spring from a desire to retain his court.

As he freely admits the present system is 'bureaucratic', 'expensive', and 'disempowering'.

Bureaucratic, he says, because its procedures involve considerable time and expense, and expensive as patients have to pay 5% of their annual income to finance its infrastructure.

And disempowering because once someone becomes a patient, they are deprived of the right to manage their property and finances even though they might have capacity.As ever in the affairs of those with mental incapacity, the fundamental issue is the extent to which the state is allowed to intervene in people's lives.

A recent Law Commission report advocated minimal interference in the treatment of those without capacity.

'An intrusive, restrictive and paternalistic approach, however well-intentioned, is not what is wanted nowadays by people who are on the receiving end of it', said the report.But paternalism was the very reason that the court was created.

Master Lush explains that the court dates back to the Middle Ages when it was established to protect the mentally ill people with learning difficulties from exploitation by their feudal superiors.

'Now they are vulnerable to exploitation by members of their family,' he says.The court is dealing with a matter involving an unregistered enduring power of attorney where all of an elderly lady's savings, £1.8 million, was siphoned into a Swiss bank account.

When families receive damage awards of £2 million, it is 'like a lottery win', he says, and the money has to be monitored and not frittered away.The proposals for the new court - its name is yet to be decided - are to increase its jurisdiction to cover property, finances, personal and medical decisions.

A centralised administration will carry out the support functions, but judges will be assigned to the court and sit locally, which deals with the complaint that the old court had no regional presence.On the day that Master Lush talked to the Gazette, the review by the Lord Chancellor's Department (LCD) of the Public Trust Office (PTO) - the government agency that oversees the court - arrived on his desk.

The review says the PTO should be scrapped and its work carried out by the LCD and voluntary organisations, as well as solicitors and accountants in private practice.

In its present incarnation, the office is under 'severe strain' and failing to provide clients with an acc eptable service.Lord Irvine agreed with the findings, calling for 'radical change'.

According to Master Lush, the report envisages that solicitors should step into the gap and pick up trusts and receivership work.

He adds that the report's findings are consistent with the government's plans for the court under 'Making Decisions'.The reforms will see an end to the enduring power of attorney (EPA), a deed by which a person can appoint an attorney to manage their financial affairs.

One problem with EPAs, he says, is that there has been a widespread failure by attorneys to register powers with the PTO when they believe the person is becoming mentally incapacitated.

For every registered power, there are 19 unregistered powers.

EPAs also invite relatives to object, and the consequent hearing often becomes a 'cheap forum for airing a long-standing dispute within a dysfunctional family', he reckons.

In addition, they are prone to fraud, and abuse takes place in up to 15% of cases involving registered powers.Under the new CPA, attorneys can make any financial, personal or medical decisions.

Under the proposals, it would not be possible to use a CPA unless registered, and relatives would no longer have the automatic right to object to registration which, he maintains, should reduce contentious hearings.The master was formerly a member of the British Medical Association's (BMA) steering group which produced the code of practice on advance statements, commonly known as living wills.

When the government expressed an intention to legislate in this area, it provoked a storm of controversy with heart-felt support and total opposition coming in equal measures.

There were roughly 3,000 letters from 'right to life' supporters sent to the LCD, the judge recalls, and 3,000 from 'right to die' supporters, and they 'cancelled themselves out'.The government decided to drop the issue.

But he notes that attorneys acting under new CPAs would be able to give instructions to withdraw nutrition and hydration if so instructed.

On a personal level, he says he has no problem with living wills and, as a solicitor, drafted a number in the early 1980s under a US-style protocol.

He advised his clients that, although such a statement had no legislative force, in future it might be persuasive.

'I wouldn't particularly want to make one myself,' he adds.Master Lush qualified as a solicitor in 1978 and specialised in private client work with Exeter firm Anstey Sargent & Probert.

He gave up partnership in 1993 to become a consultant so he could spend more time on extracurricular activities, including membership of the Law Society mental health and disability committee, the British Medical Association steering group, and sitting as part-time chairman on the Social Security Appeals tribunal.When he joined the profession having completed a history degree ('where everything was shades of grey') at Cambridge University, he found the black and white of law a 'culture shock'.

However, his work with the mentally incapacitated contradicts that early experience, especially assessing a person's capacity.

One way would be to conduct a 'dawn raid', he says, but the best way to assess someone is to see that person in his or her best possible circumstances.The court, based off Lincoln Inns Fields in London, is far removed from the intimidating austerity of many courts, and he emphasises that proceedings are 'really very relaxed and informal'.

He hopes those judges nominated for the new jurisdiction adopt this lack of stuffiness.

Master Lush hardly conforms to popular judicial stereotypes and, for a start, lists under his interests in Who's Who, contemporary popular music (favourite album of the 1990s is 'Urban Hymns' by Warrington band The Verve).He acknowledges that the treatment of the rights of the mentally ill or people with learning difficulties is a barometer of a society's compassion, and adds that there is growing consciousness of discrimination in all areas.

He maintains that had Princess Diana survived the car crash in Paris and suffered head injuries instead, then the rights of those with brain damage would be top of the political agenda --and suddenly there would have been a spate of legislation.ALISON CLARKE LOOKS AT THE CAMPAIGNS FOR THE MENTALLY IMPAIRED IN ENGLAND AND WALES, AS COMPARED WITH SCOTLANDYears of lobbying by lawyers in Scotland on behalf of the mentally incapacitated finally paid off with the publication of the Adults with Incapacity Bill on 1 October.

Solicitors in England and Wales, on the other hand, still have some way to go.

Although the Lord Chancellor issued a series of proposals at the end of October and promised that the government would legislate, he has so far refused to allocate the necessary parliamentary time.Mike Napier, deputy vice-president of the Law Society and a former chairman of its mental health committee, stressed the need for urgent reform: 'Until the law is changed, large numbers of adults will be denied recognition in law and protection from exploitation.

The government has now accepted the argument, but it must commit parliamentary time to the reforms'.Adrian Ward, senior partner at Scottish law firm Turnbull & Ward, explained why he thought Scotland had made more progress.

'One reason is that our current law is even more unsatisfactory than that in England.

There was therefore no question of tinkering with the existing system.

Ours is a clean-sheet approach to a much greater extent than in England.'The creation of a Scottish parliament was another factor.

Anne Keenan, a deputy director of the Law Society of Scotland and secretary to the Mental Health and Disability Committee, agrees that making time for a bill in the first session of the new parliament was central to the process of reform.

Because of the priority given to it by the Scottish parliament, she hopes it will be on the statute books by early summer.But the most significant factor was the creation of an alliance for promoting the bill.

More than 70 organisations joined up, including 33 national bodies, such as the Law Society of Scotland.

As its principal spokesperson, Adrian Ward says the campaign run by the alliance was crucial to its success.

'For instance, I spoke at all the conferences of the various political parties and we got manifesto commitments in one way or another from all of them.

We also ran a major campaign in the press and media.

It was a question of using every possible means.'By contrast, the campaign in England and Wales has been much more low-key.

Penny Letts, the secretary to the mental health and disability committee for the Law Society of England and Wales, says: 'The alliance has achieved wonders, but it's difficult to draw parallels with Scotland.

Although there is no formal alliance here, we have been working jointly with a number of mental health and disability organisations and keep in constant dialogue with them.' She also points out: 'In Scotland, there is only one government department to deal with, whereas we have to deal with a number of different departments here, each with their own priorities.'She says that although the two legislative systems are different, there are similarities in the principles underpinning the proposals.

'Basically we are all trying to encourage people with impaired capacity to make what decisions they can.

At the same time we want to set out a statutory framework to cover situations when others are making decisions on behalf of that person.

This should take account of the person's preferences where they are able to express them and involve them as much as possible in the process.'Adrian Ward agrees that the overarching principles are similar and attributes any variations to the different starting points in the two countries.

However, there is, he says, one significant underlying difference.

'The Scottish approach has a stronger human rights basis.

We believe not only that intervention should be available when needed, but also that when rights and status are to be limited, that should not happen de facto but only with proper legal procedure and safeguards.'For that reason, he says he has not heard anyone in Scotland argue in favour of the English proposal to give a free hand to 'intervention by someone with no other authority than his or her own belief that this is in the disabled person's best interests'.He points to the different arrangements in the two jurisdictions when intervention is required on behalf of an individual who is not competent.

He says: 'The difference in approach is reflected in the terminology.

Our guardians will, we hope, meet the entitlement of some disabled people to guardianship, and will thus protect and enhance their rights.

Your [English] managers seem to carry the implication of managing people.'Nicola Mackintosh, a partner specialising in mental health and community care work at Mackintosh Duncan in London, echoes some of those concerns.

'From what I understand of the proposals, people will be able to put themselves forward as managers and will have carte blanche to make whatever decisions they want.'She therefore warns against accepting the proposals as they stand.

'I am concerned that because there is a massive lacuna in the law, we just grab the first thing that comes along.

In fact, we should look at whether the solution is comprehensive and based on sound principles.

I would like to see a campaign similar to the one in Scotland, but there is no such cohesive group in England.'She is not alone in her concerns.

Simon Foster, the principal solicitor for MIND, says that there must be safeguards to ensure that people making decisions on behalf of an adult who lacks capacity are held accountable.Peter Edwards, a mental health civil rights lawyer at Peter Edwards & Co in Wirral, Merseyside, agrees.

He welcomes the government's proposals, but says 'people who lack capacity are vulnerable to abuse by others.

They need a system of principles and processes to safeguard them'.However, he is sanguine about the prospects for change in England and Wales.

'We have only just got the policy statement, so there is plenty of opportunity for things to be changed and improved long before there is any legislation.'MATT BARNARD DISCOVERS THERE ARE FEW LAWYERS WITH THE SKILL NEEDED TO REPRESENT THOSE LACKING MENTAL CAPACITYWhile the needs of many vulnerable groups are repeatedly highlighted in the media, the needs of adults who lack mental capacity is not an issue which grabs many headlines.

However, within this group are some of the most vulnerable members of society who receive very little protection from the law and whose rights are often abused.

There is a growing recognition of the difficulty people outside the legal profession have in negotiating the intricacies of the UK's legal system, but for those individuals who lack mental capacity, the problem of exercising their rights is even more difficult.The most common group of people who, within a legal definition lack mental capacity, are those who have severe learning disabilities.

All children are judged legally to lack mental capacity, so while they are minors, people with severe learning disabilities can be represented by their parents or whoever is legally responsible for their welfare.

Once they become adults, they fall into a legal vacuum which means that it is difficult to act on their behalf because they are not minors, but they are also not capable of appointing legal representatives themselves.For friends or relatives trying to help people who lack mental capacity, the situation can often look bleak.

They either have to agree to act as a litigation friend or get the Official Solicitors to take up the case, but both options can present great practical difficulties.

Even the basic problem of finding a legal representative who is competent in dealing with the particular issues which affect this group can be frustrating and time-consuming.District Judge Gordon Ashton, a well-known campaigner for the rights of individuals with disabilities, voiced his concern last month at the mental incapacity conference which was organised jointly by the Law Society, The Mental Health Act Commission and The Royal College of Psychiatrists.

Judge Ashton said: 'As a legal author concerned about people with disabilities I am haunted by the question: "How do I find a competent solicitor who will take an interest in my problem?".'Judge Ashton pointed out that while some charities have attempted to draw up referral lists, many people look to the Law Society for guidance on which solicitors have the appropriate skills and experience to give specialist advice.

He is not alone in his concerns.

Some charities which work on behalf of the disadvantaged would also welcome a Law Society accreditation scheme.Evelyn McEwen represents Age Concern on the Law Society's mental health committee.

The onset of dementia in old age can often mean that individuals get to the point where they no longer have the capacity to make decisions for themselves, and with the average age of the population rising, the charity is likely to be dealing with increasing numbers of such individuals.Ms McCuen says the charity believes it is not appropriate for them to decide which lawyers it should recommend, and would like to be able to direct people to a Law Society list.

She comments: 'It would be an enormous help to all organisations which act in an advisory capacity to older people if there were lists of accredited solicitors who one would feel are quality controlled.

We could then confidently recommend that to people.'The Law Society has a number of specialist lists which deal with areas of mental health law, including the mental health review tribunal panel which lists lawyers competent to represent patients before mental health tribunals.

However, most patients with mental health problems do not lack the mental capacity to appoint a legal representative, so the panel does not address the specific needs of that group.Penny Letts, secretary to the Law Society's mental health and disability committee says that the Law Society recognises the difficulty of finding lawyers who have the skills and experience to represent clients who lack mental capacity, but she says the solution is not simple: 'People who lack mental capaci ty may need help in a number of different areas, from managing their financial affairs to accessing proper health or social care.

So it is difficult to form an accreditation scheme with lawyers who are not only experts in these hugely diverse areas of law, but also have the experience to act on behalf of people who lack capacity.

That is a particular nut we haven't been able to crack yet.'While many lawyers in a wide variety of practice areas may occasionally deal with clients who lack mental capacity, the number of lawyers who deal specifically with the issues surrounding the personal decision-making problems that face people who lack mental capacity, is small.

Yet it is a fundamental step in enabling them to establish their rights, such as receiving proper care from local authorities or protection against abuse.

And often it is hard to get legal aid to fund this type of work.Luke Clements is a lawyer who works on behalf of people who lack mental capacity in his role as a consultant to Hereford law firm Thorpes, but he also has part-time position as a senior research fellow at the law school at Cardiff University in order support his work.

He comments: 'I might be contacted by someone who could live 200 miles away because there are very few lawyers who specialise in this area.

There's no legal aid for me to go and see someone and test whether they have capacity or not.

And even if I do get legal aid [to take on the case], I need to spend a lot of time getting their confidence, and the legal aid system penalises all that.

It doesn't pay me anything to go and see them, and then it will say I have spent too long with them.'This means it is difficult for solicitors to earn a living representing people who lack mental capacity, so if the Law Society drew up a list of people who specialise in the area, Mr Clements estimates it would probably contain the names of only a dozen or so lawyers.This shortage puts enormous pressure on those who do take on the work, and means it is difficult to say no to a case - no matter how uneconomical it may be to take on.Mr Clements admits: 'You can't walk away.

I've just finished a case which involved me spending five or six days with an individual.'It's not a question of not being paid a hundred pounds an hour - I haven't even been given the cost of the train fare.'