Joint Committee on the Draft Mental Incapacity Bill First Report

5 Chapter 5: Human Rights Considerations

Human Rights Act Compatibility

45. After examination of the draft Bill, the Joint Committee on Human Rights concluded:

46. Given that the draft Bill would clearly invoke rights under the Human Rights Act 1998, the Committee undertook its own scrutiny of the issues. Professor John Williams, Head of the Law Department of the University of Wales, Aberystwyth, stated in his evidence to the Committee:

    "…the common law on decision making for incapacitated people has served us reasonably well and facilitated decision making for incapacitated people, it is doubtful whether it contains sufficient safeguards to ensure that it does not violate the European Convention on Human Rights ….."[31]

47. Accordingly, the current practice of relying on the courts to fill in the gaps in the law was clearly seen as inadequate and the clarity of a statutory footing was viewed as desirable.[32]

    "The draft Bill is welcome and very timely. Incapacity is a growing area of concern for social work practitioners and most feel uncomfortable working under the existing system."[33]

48. Despite the report from the Joint Committee on Human Rights, it became apparent to the Committee quite early on in our inquiry, that there remained significant disagreement as to the Human Rights implications of the draft Bill. Oral evidence from Values into Action, an organisation working with people with learning difficulties stated:

    "As is currently drafted in my view this Bill legalises what is currently done by and large unlawfully in terms of decision-making being done on behalf of other people. At the moment because the law is so unsatisfactory many, many decisions are made for people with no legal basis. This Bill if it were to go ahead would legalise that position without ensuring those decisions are what people want and without ensuring that people's views are properly and thoroughly taken into account, it would actually worsen the situation of people with learning difficulties."[34]

49. A number of submissions were received from witnesses expressing concern about the impact of the draft Bill on the rights enshrined in the articles of the European Convention on Human Rights, now incorporated into UK law by the 1998 Act. Those which the Committee received the most evidence on were articles 2 and 6.

Article 2(1) provides:

50. Article 2 therefore imposes a primary obligation on the State to refrain from taking life, other than in limited circumstances. It further imposes a secondary obligation to ensure that there are appropriate safeguards in place to protect life.

51. Evidence from ALERT, an organisation committed to "defending vulnerable people's right to live" submitted to the Committee the opinion of leading counsel, Richard Gordon QC, in which it was stated:

    "Article 2…..imposes a positive obligation on the State to give life-sustaining treatment in circumstances where, according to responsible medical opinion, such treatment is in the best interests of the patient".[36]

52. It was submitted that the powers in the draft Bill, exercisable under Lasting Powers of Attorney and by the refusal of treatment by advance decisions, contravened, inter alia, the obligations of the State under article 2. However, a number of other witnesses submitted that although article 2 does impose positive duties on the State to uphold an individual's right to life, a public authority cannot be compelled to impose treatment against a person's express wishes.[37] Accordingly, an individual can refuse to have his right to life upheld and relieve the State from its obligation. Moreover, on a number of occasions, the courts have upheld the right of an individual with capacity to refuse life-sustaining treatment even if that decision is irrational.[38]

53. We are of the opinion that under the proper interpretation of article 2, the State has a secondary obligation to protect life, but an individual can choose not to uphold that right. Accordingly, the mechanisms under the draft Bill, which permit the refusal of consent to the carrying out or continuation of treatment, in accordance with the wishes of the patient, do not contravene article 2 of the European Convention on Human Rights.

Article 6(1) provides:

54. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.[39]

55. It was submitted to the Committee that, first, the right of access to the Court of Protection was 'inadequate to comply with the need for immediate access to a Court…' and secondly, that there were no obvious mechanisms for the Court to become involved.[40]

56. It has been held that the right of access to court is not absolute, but may be subject to limitations, since 'by its very nature [it] calls for regulation by the state, which may vary in time and place according to the needs and resources of the community and of individuals'.[41] The draft Bill does provide a right of access to the courts as it is possible to challenge decisions, and others can challenge on behalf of the incapable adult. Under clause 40 a number of individuals can apply to the Court of Protection without permission, including the incapacitated person him/herself, anyone acting on behalf of the person lacking capacity (such as a litigation friend), a donee of a lasting power of attorney and a court appointed deputy. In certain situations, the very nature of person's incapacity will mean that access to court by that individual will be more difficult than for a capable person. The aim of the draft Bill is to provide mechanisms for substitute decision making for incapable adults; by dispensing with the requirement to obtain permission in some cases, it attempts to increase access to the Court. Permission cannot be dispensed with in all cases as gatekeeping mechanisms need to maintained. Moreover, Professor Michael Gunn of Nottingham Law School argues that to allow all decisions to be determined by the court could amount to a breach of the article 8 right to have private life protected.[42] The essential object of article 8 is the protection of the individual against arbitrary interference by public authorities.

57. Although we have made recommendations that access to the Court of Protection should be further enhanced for persons lacking capacity[43] we are of the opinion that there are sufficient mechanisms provided under the draft Bill to ensure that persons lacking capacity receive a prompt, fair and public hearing.

58. Some evidence was also received by the Committee that article 3 might be contravened by the provisions of the draft Bill. It provides:

    "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."[44]

59. The argument put forward was that there was scope under the draft Bill to treat vulnerable people contrary to their best interests and in a way which deprived them of life.[45]

60. Clause 4 of the draft Bill provides that any act done, or any decision made on behalf of a person lacking capacity must be done in his best interests. Furthermore, a number of safeguards are included to prevent the carrying out of degrading treatment. For example, there are restrictions on the use of the general authority to prohibit the use, or threat of force, or to restrict the liberty or movement of a person, except in exceptional circumstances.[46] We have however recommended that the exceptional use of, or threat of force, or the restriction of movement are limited to emergency situations and that the period of detention should be as short as possible (see chapter 8 paragraph 132). The Committee are satisfied that this additional safeguard will ensure that persons lacking capacity will be protected from being subject to degrading treatment and significant harm. In addition, and as stated in paragraph 53 above, the Committee are satisfied that the provisions of the draft Bill to do not deprive persons of the right to life.

61. Accordingly, we are of the opinion that the arguments put to the Committee that the draft Bill violates the rights enshrined in article 3 are without merit. In agreement with the Joint Committee on Human Rights, we conclude that the draft Bill provides sufficient safeguards to ensure that the right to be free from degrading treatment is protected.[47]

30   Scrutiny of Bills and draft Bills: Further Progress Report (HL Paper 149/HC 1005), para 4.7 Back

31   Ev 190 MIB 564 para 2 Back

32   See Re F (Adult: Court's jurisdiction) [2000] 2 FLR 512 Back

33   Ev 190 MIB 564, para 2 Back

34   Q653 (Dr Collins) Back

35   Ev 433 MIB 933 para 45(a) Back

36   para 45(a) Back

37   Q150 (Mr Foster), Q607 (Mr Clements) Back

38   eg Re T [1992] 1 WLR 782; Re B (adult: refusal of medical treatment) [2002] 2 All ER 449 Back

39   Schedule 1, Human Rights Act 1998 Back

40   Ev 433 MIB 933, para 61 Back

41   Golder v United Kingdom (1975) 1 EHRR 524, quoted in Human Rights Practice (June 2000) Jessica Simor (ed)  Back

42   Ev 416 Ev 416 MIB 1192, para 7b Back

43   See chapter 10 Back

44   Schedule 1, Human Rights Act 1998 Back

45   Ev 433 MIB 933 Back

46   Clause 7 Back

47   Subject the recommendations of the Committee contained in this report. Back

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Prepared 28 November 2003