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.
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.
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'.
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.
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
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."
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.
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.
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.