HC Deb 23 December 1981 vol 15 cc1021-6 12.32 pm
Mr. William Hamilton (Fife, Central)

The story that I wish to tell has deeply shocked and angered everybody to whom it has been told, not least the press in Scotland, especially the Sunday Mail, and Ministers of the Crown in the Scottish Office. I shall put on record the basic facts.

In 1977 Brian Aitken suffered severe head and leg injuries in a car crash in Inverness-shire. As a result, he is at 27 years of age a permanent cripple physically and mentally. He was awarded £75,000 compensation and that is where the trouble started.

Brian lives with his parents in a council flat at 95, Small Street, Lochgelly, Fife, where he is looked after by his parents through the week. He is taken into hospital, mainly for weekends, at Lynebank hospital.

In early November of this year I visited Mr. and Mrs. Aitken at their request. They supplied me with details of how the £75,000 in compensation was being administered on their son's behalf. As they unfolded the story I could hardly believe my ears.

The family income is £60.95 weekly, consisting of £47 unemployment benefit, £5.45 in invalidity allowance and £8.50 in attendance allowance. The parents are responsible respectable middle-aged people who are anxious to do their best for their son, but they had not counted on the law. The law in these cases is proving to be a cruel, heartless and stupid ass. As the Under-Secretary of State for Scotland, the hon. Member for Edinburgh, Pentlands (Mr Rifkind), explained to me in a letter dated 25 November, the laws under which such cases are treated are the judicial factors Acts of 1880 and 1889, subsequently amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980.

Under these Acts trustees called curators bonis are appointed to manage estates such as that of Brian Aitken's for his, Brian's, benefit and to make all administrative decisions subject to the overall supervision of the accountant of court, to whom must be given an account of all moneys paid into or out of the estate.

I understand the need to protect such estates in the interests of beneficiaries against possible abuse by parents, other relatives or friends, but I ask the House to consider what has happened in Brian Aitken's case.

The curator bonis is an employee of a firm of chartered accountants of Glenrothes called Mr. John Christie. The Aitkens' family solicitor is a Mr. Simpson of Kirkcaldy.

Brian's parents wanted to do several things in the interest of their son. They wanted to employ a housekeeper for the four days per fortnight when Brian is at home to help with washing, cleaning and generally assisting the family to look after the boy. They wanted to instal central heating in their flat because a young man such as Brian needs more heat than most people. They wanted to replace their present motor car, which is leased and paid for with the mobility allowance, and they wished to buy their flat from the council so that if anything happened to them Brian would have a roof over his head. Fifthly, when Brian is in hospital, which is eight miles away in Dunfermline, it costs Mrs. Aitken £1.12 for a return journey by bus, or £5.60 a week. She often takes fruit and sweets into the hospital for Brian as well as renewing clothes and shoes. It is a normal case of parents caring for a handicapped child.

Most of the parents' requests were set out in a letter that was sent to the trustee by the Aitkens' solicitor on 17 September. The reply from the trustee is dated 22 September. This correspondence took place in the context of an award of £75,000 in compensation, which if it were placed in a bank or building society at 10 per cent. would produce £7,500 a year or £150 a week in interest alone.

For sheer insensitivity not to say arrogance and inhumanity, the letter from the curator is hard to beat. I shall quote from it to prove my point. As regards central heating, the curator says that he would require it to be put out to a contractor and the estimate vetted by him and the accountant of court, and he says: I would then require a properly documented invoice from the contractor concerned before making payment. Then the curator goes on about the car: With regard to the question of replacement of Mr. Aitken's car, it would appear from the earlier paragraphs in your letter"— that is, the Aitkens' solicitor's letter— that Mrs. Aitken travels to visit Brian by bus and the costs have already been taken into account. The curator had already awarded £50 a month to the family. These visits to hospital by bus had already been taken into account. He goes on: I feel sure that the accountant of court would require further information on the use made of the car and the benefit derived by Brian Aitken from this. Then the curator refers to the sweets that Mrs. Aitken was taking to hospital for her boy: I should also bring to your attention that I have received a telephone call from Sister Heggie of Lynebank Hospital pointing out that Brian Aitkin requires a range of new clothing due to the need for numerous changes of clothing as a result of his incontinence and I have authorised Mrs. Heggie to obtain the necessary clothing on behalf of Brian and to forward me the necessary invoices for reimbursement. She has also stated that the Hospital Administration do provide sweets, etc. from the Hospital Shop for Brian on the days when his mother does not visit and that the Hospital may require reimbursement of these charges for the sweets. As you state in your letter that Mrs. Aitken visits Brian every day when he is not at home, I would be grateful for clarification on this point. Then the Curator goes on: With regard to the point raised in your letter concerning how the funds of the Curatory have been invested, I was not aware of the necessity of informing Mr. and Mrs. Aitken of this having received approval from the Accountant of Court as to the planned course of investment. However"— it being near Christmas, I suppose— for investment purposes, I enclose herewith a copy of the investments recommended by Capel-Cure Myers with whom £70,000 of funds have been placed and a balance of just over £4,000 has been placed on deposit with The British Linen Bank and until the recent increase in bank rate, has been earning interest at the rate of 10 per cent. per annum. £1,000 of funds have been retained by Messrs. Strathern and Milne to meet legal costs and outlays in connection with Brian Aitken's claim. That is the tone of the letter from the trustee. I guess that this is not an unusual case. I do not know how many such cases there are in Scotland that have not had the publicity that this one has had. As long ago as 1975, the Mental Welfare Commission for Scotland, in its publication "No Place to Go", suggested that so far as the property of mentally disordered patients was concerned, a major change in the law was desirable. In the commission's recent pamphlet "Does the Patient Come First?", it said: Some Curators consider that their only duty is to conserve the ward's estate and are reluctant to authorise expenditure on comforts and even necessities … What is required is a coordinated service whereby the assets of persons who cannot, because of mental disorder, administer these properly are responsibly looked after at reasonable cost by an accountable public body properly advised as to the needs and requirements of the patient. The commission concluded: Unfortunately, this is a problem about which few seem to want to know. Is it too much to hope that some enlightened Government could spare a few hours to produce improved legislation for Scotland on this non-controversial but important subject? I ask the Minister: is it asking him too much? I know that he is very sympathetic to the case that I am putting and I am grateful to him for that. This Session the legislative programme is very light. I hope that a new mental health Bill for Scotland would go through Parliament speedily this Session. It would be basically non-controversial on a party basis.

I have raised this problem previously on the Floor of the House at Question Time and in other ways. The Minister has promised to investigate this matter. I have sent the relevant papers to the Solicitor-General for Scotland. The Government have already said that they will be taking legislative action on these matters on the same basis as the European Court. I hope that the Minister will give a very sympathetic answer.

I know that, as a result of this publicity, generous offers have been made and I have been given certain details that I shall not disclose, for obvious reasons. It shows the inadequacy of the law that it requires a good deal of adverse publicity before curators bonis can be made to realise the inhumanity of their actions. Will the Minister give us facts and figures on how many cases have been brought to his attention and tell the House whether there are any prospects of legislation on the matter?

12.45 pm
Mr. Bruce Milan (Glasgow, Craigton)

The House should pay tribute to my hon. Friend the Member for Fife, Central (Mr. Hamilton) for the persistence with which he has pursued this case, and for the attendant publicity. What he has said is true. If there had not been that publicity, the more sympathetic understanding that the curator bonis has now shown to the needs of the patient within his care and his family would not have taken place. It is still extremely disturbing, however, that that publicity should have been required. There may be other cases that are being dealt with as unsympathetically as this case was before the publicity that my hon. Friend generated.

There is still a lingering feeling in many circles that those who are mentally disordered are entitled only to the minimum provision, whether in hospital, at home or anywhere else. There is a feeling that they require only minimum care and attention. Much still needs to be done if we are to be satisfied with the way in which we treat mentally ill and mentally disordered patients, whether in Scotland or elsewhere. I hope that the Minister, who I know is personally sympathetic towards these matters, will be able to give some assurances to my hon. Friend about the prospect, for example, of legislation. Many other matters need to be dealt with, too—for example, votes for patients in mental hospitals who do not have home addresses. That is a matter which I have been pursuing without ultimate success for many years. I do not blame the present Government. All Governments have shown a lack of will and energy on some of those matters.

I hope that the Minister will also say what can be done in existing circumstances, short of legislation. My hon. Friend mentioned the accountant of the Court of Session but, as I understand it, he is there to supervise and to make sure that improper expenditure is not incurred. In this case, we are anxious about the opposite—that proper expenditure has not been incurred because of an unduly restrictive and unsympathetic attitude by the curator bonis. As far as I am aware, under the existing law there is no procedure that easily puts the matter right. Short of legislation, perhaps some guidance can be given that would deal with some of these cases and allow families who feel that they are being unfairly treated to be able to take effective action.

12.48 pm
The Under-Secretary of State for Scotland (Mr. Allan Stewart)

I agree with what the right hon. Member for Glasgow, Craigton (Mr. Millian) said in his tribute to the hon. Member for Fife, Central (Mr. Hamilton) for raising this matter and for the action that he has taken. I fully appreciate and sympathise with the concern that he and the right hon. Gentleman expressed.

The hon. Member for Fife, Central raised the specific case and referred to the more general question of the law relating to curators bonis. I shall deal first with the specific case and confirm what he has said. He wrote to the Secretary of State on 9 November about the difficulties that his constituent, Mrs. Aitken, had experienced in obtaining funds from the curator from the estate of her disabled son, Brian. As the hon. Gentleman said, Brian was disabled severely about four years ago in a road accident and was awarded damages by the Court of Session of £75,000, which was paid to his curator bonis, less legal expenses, in June of this year.

It may help the House if I explain precisely the function of a curator bonis and the locus of the Secretary of State in particular cases. A curator bonis is one of a variety of different kinds of judicial factor. There are 11 in all. He may be appointed by the courts to manage the estates of persons unable to do so themselves, because, for example, of physical or mental disability. They are appointed and act under the judicial factors legislation. They must adminster the estate for the "comfort and welfare" of the beneficiary. Almost invariably the courts appoint a chartered or certificated accountant or a solicitor. In Brian Aitken's case the curator bonis is an accountant who works for a Glenrothes firm, Messrs Carter, Geoghegan and Co.

All judicial factors operate under the general supervision of the accountant of Court of Session. They are required to ensure that they observe the relevant rules and regulations. The right hon. Member for Craigton mentioned the relationship between the curator bonis and the accountant of court. The curator bonis must give the accountant of court an annual account of the moneys received into and dispersed from the estate. Should he fail to discharge his duties properly, he can be penalised by the court by a fine, having his commission forfeited or being suspended or removed from office. A curator bonis must, therefore, establish that the proposals for expenditure of funds from the estate are demonstrably for the benefit of the beneficary. So long as the management of the estate is conducted by the curator bonis in a way which conforms with the statutory requirements, the accountant of court has no formal locus to intervene, and nor has the Secretary of State.

As the hon. Member for Fife, Central said, in early September Mrs. Aitken asked the curator bonis, through her solicitor, for certain funds to be made available from the estate to meet expenses being incurred by her in connection with her regular visits to Brian at Lynebank. She subsequently asked for funds to be made available for central heating to be installed in her house—which the family doctor recommended—and for the family car to be replaced.

Before granting such requests, which the accountant of court had agreed in principle could be made, the curator bonis asked Mrs. Aitken's solicitors for informations about the allowances being received, to provide a proper estimate from a contractor for the installation of central heating, which the curator bonis agreed would be of benefit to Brian, and to provide details of the way in which Brian would benefit from the use to be made of a new family car. The queries were apparently a necessary preliminary to funds being made available to Mrs. Aitken.

I fully understand the concern of the hon. Gentleman and the family. The queries and delays must appear as bureaucratic red tape and add further distress to an already tragic situation, but, regrettably, delays can happen when there are safeguard procedures to follow.

In any event, the accountant of court, the curator bonis and Mrs. Aitken met on 14 December, and I understand that Mrs. Aitken's requests for funds have been dealt with to her satisfaction.

It is always open to relatives to deal directly with the curator bonis and, should they be dissatisfied, to raise the matter with the accountant of court. If they are still dissatisfied, the matter should be referred to the courts.

I turn to the more general question of the law governing curators bonis and other judicial factors. I was asked whether we have received notification of other cases where there was dissatisfaction. I am not aware of widespread public dissatisfaction about the law, and no other specific cases have been raised with me recently.

The hon. Member for Fife, Central referred to the reports of the Mental Welfare Commission for Scotland in 1975 and 1981. The 1975 report pointed out that there was room for a change in the law. The commission was particularly concerned with the property of mentally disordered patients.

In 1980, the Law Reform (Miscellaneous Provisions) (Scotland) Act achieved two improvements in this area of the law which I think that the commission has confirmed as significant. The Act abolished the restriction which previously applied to the appointment of the judicial factor by the sheriff court so that it was no longer confined to small estates. It also implemented recommendations of the Scottish Law Commission directed at reducing the expense which might be incurred if a judicial factor wished to sell a heritable property forming part of the estate under his charge.

However, it is clear that there may be a conflict between the understandable view of some families that they should be entitled to a say in the management of the large damages awarded in cases of this type and the function of the curator bonis to ensure that the estate is properly preserved against the beneficiary's future needs. The principle in Scots common law that the primary duty of the curator bonis is to preserve the estate has been established by case law on judicial factors.

The hon. Gentleman raised the question of a general review of legislation. The Scottish Law Commission has invited an academic to prepare a research paper for it on judicial factors. After the research paper has been completed and duly submitted, the commission will consider whether to include an examination of the law in that area in a future reform programme. That is the position on the law relating to judicial factors as a whole.

The hon. Gentleman referred to the matters raised by him and the hon. Member for Stirling, Falkirk and Grangemouth (Mr. Ewing) at Scottish Question Time on 9 December. I confirm that the points made then will be noted for consideration by the commission. I shall, of course, ensure that the points made this morning are also noted.

Mr. Millan

On the subject of what the study is to cover, I refer to the question of preserving the estate. In this case, given the amount involved, it is not just a matter of preserving the estate. Unless some money is reasonably disbursed, the estate will accumulate and grow, which in this case is pointless. Nobody is asking for estates to be squandered, but in these circumstances preservation cannot be the sole or even the most important criterion. I hope that the study will deal with that.

Mr. Stewart

I repeat what is established under present case law in relation to the primary duty to conserve the estate. The right hon. Gentleman wishes to know exactly what the academic study will cover. I confirm that it will be a study of the whole subject. I am happy to repeat my assurance that the points that he has made, including this one, will be brought specifically to the attention of the Scottish Law Commission.

The hon. Member for Fife, Central and the right hon. Member for Craigton both raised the more general question of legislation on mental health in Scotland. The hon. Member for Fife, Central quoted from the Mental Welfare Commission's report. That report stated that an amendment should be made in the law about the property of mentally disordered patients. He will appreciate that I cannot give him a specific assurance on the legislative timetable, but I assure him that careful consideration is being given to the proposal and to the possibility of legislating on the matter as opportunity offers.

As the right hon. Member for Craigton mentioned, in answer to my hon. Friend the Member for Argyll (Mr. MacKay) on 9 December, I announced that my right hon. Friend the Secretary of State would be introducing legislation to deal with the judgment of the European Court on another matter related to mental health. I assure both hon. Members that the points that they have made will immediately be taken into consideration.