Dispute resolution mechanisms
130. As many witnesses pointed out, there is considerable
scope for disagreement between relevant parties over what actions
might be in the best interests of a particular individual.
The draft Bill does not make provision for any form of dispute
resolution mechanism save recourse to the Court of Protection.
It is clearly not desirable or feasible for all disagreements
arising under the draft Bill to be resolved in this way.
We recommend that a right to a second opinion in cases of disagreement
which have not been resolved through discussion be included on
the face of the draft Bill.
131. The Law Society recommended the involvement
of mediation services in cases where resolution through a court
would not be a proportionate response.
We accept the value of mediation services and would like to
see reference in the Codes of Practice accompanying the draft
Bill to their utility as an alternative mechanism of dispute resolution.
In situations where strong disagreements remain over what is in
a person's best interests, the dispute should always be referred
to the Court of Protection.
Use of force
132. The general authority does not authorise the
use of force to secure the doing of an act resisted by the person
concerned or to restrict that person's movement except to avert
a substantial risk of serious harm. It is unclear what is meant
by force and what solution should be used if, for example, a person
is confused and lacks an understanding of what is happening and
refuses to go to hospital for an investigation the purpose of
which is to identify the reasons for confusion. Where force or
restriction of the person's movement is permitted, the Bill contains
no requirement for the risk of serious harm to be immediate, which
would justify emergency action being taken. The Law Society contends
that such powers, unless more heavily qualified, may amount to
'detention' of the incapacitated person in contravention of the
Human Rights Act.
Witnesses agreed that there could be circumstances in which the
general authority could be used as a defence in court for what
many people would regard as an inappropriate use of restraint.
We recommend that clause 7 be redrafted to specify that detention
can only be justified in a situation of urgency (including an
emergency) and that the period of detention should be as short
and least restrictive as possible.
133. We welcome Lord Filkin's acknowledgement
that the Department needs to look again at the way in which the
general authority is set out in the draft Bill.
Unlike the Adults with Incapacity (Scotland) Act 2000
the general authority ensures that all decisions relating to personal
care and health matters are brought within a statutory framework.
Despite our concerns, we are convinced that with greater clarification
of the intention and scope and with wider and more rigorous safeguards,
the general authority would significantly improve the legislative
framework for substituted decision making in England and Wales.
99 Law Commission Report 231, 1995, Part IV Back
CM 5859-II page 8 Back
Other than in specific situations where the person has previously
authorised it, for example in setting up a joint bank account
or in granting a power of attorney. Back
 2 AC 1 Back
Law Commission Report 231, part IV Back
Ev 191 Q513, Ev 208 Q545 Back
Q179 (Mr Kramer) Back
Ev 190 MIB 564 Back
As illustrated by cases such as re C  1 All ER 819
and R v Bournewood Community and Mental Health NHS Trust ex
parte L  3 All ER 289 Back
Ev 228 Back
Ev 10 Q41, Ev 12, Ev 56 Q100 Back
Law Commission No 231 (1995) para 4.2 Back
Ev 16 MIB 991 Back
Ev 12, Ev 35 para 4.5.7, Ev 115 Q313 Back
Ev 36 para 4.5.12 Back
Ev 182 para 7(a) Back
Ev 231 paras 5 and 9, Ev 232 Q646 (Mr Lee) Back
Ev 182 MIB 1213 Back
See for example Q194 (Mr Kramer) and Ev 35, para 4.5.5 Back
Ev 206, para 6 Ev 34, para 4.4.1 Back
See for example Ev 99 Q281, Ev 35 para 4.5 Q401 Back
CM 5859-II Back
Q181 (Mr. Broach) Back
Q205 (Mr. Broach) Back
Q33, Q434, Qs 617-8 Back
Ev 11 MIB 584, Ev 183 MIB 989, Ev 183 MIB 1049 Back
Q584 (Mr. Clements) Back
Q646 (Mr Lee) Back
We have already recommended that a set of 'general principles'
should be included at the start of the bill, setting out the fundamental
principles which must always be taken into account when operating
under the Bill. We believe that the inclusion of clause 1(3) amongst
these principles will help prevent the general authority being
misused in this manner. Back
Q17 (Mr Ward) Back
Q104 (Mr McCulloch) Back
Q584 (Mr Clements) Back
Q594 (Mr Clements) Back
Ev 196 Q532-3, Ev 231 para 5(d) Back
Q464 (Mr Collingridge) Back
Q179 (Mr Kramer) Back
Ev 190 MIB 564 Back
Law Commission No 231 Part VI Back
Under the Mental Health Act (1983) second opinions are required
for specific forms of treatment for mental disorder (for example
electro-convulsive therapy) or prolonged treatment for patients
detained under the Act who are incapable or unwilling to consent. Back
Ev 284 MIB 1221 Back
See Chapter 16 of this Report and also Ev 43 para 56.12 Back
Q181 (Mr Broach) Back
Ev 11 MIB 989 Back
Q41 (Mr. McClements), Q281 (Dr. Wilks) Back
Q314 (Dr. Ehlert) Back
Ev 224 MIB 1215 paragraphs 8-13 Back
Ev 223 MIB 1212 Back
Q315 (Dr Zigmond) Back
Q720 (Lord Filkin) Back