Joint Committee on the Draft Mental Incapacity Bill First Report

8 Chapter 8: (Clauses 6-7) The General Authority

103. The draft Bill follows the recommendation of the Law Commission that future legislation on mental incapacity should include a 'general authority to act reasonably.'[99] For the large number of people who would be unlikely to have made provision for their incapacity through the formal mechanisms proposed in the Bill (advance decisions or LPAs), the operational reality of the general authority is likely to be crucial. The intention of providing a 'general authority' would be to clarify the circumstances in which actions and decisions could be taken on behalf of adults who lack capacity without obtaining formal powers, and to include such 'informal' decision-making within the statutory framework set out in the Bill.[100] We support this objective, but we are uncertain whether the general authority, as currently drafted, provides sufficient protection to people lacking capacity.

The rationale behind creating a 'general authority'

104. It is the right of competent adults to make decisions concerning their own lives. Such decisions might include where to live, what to wear, what to eat, what to spend money on, who to be friends with and whether or not to seek and accept medical advice. The decisions made by an individual at a particular point in time are likely to be influenced by factors relating to that individual and their circumstances. Under our present law, the competence of an adult to make a decision cannot be challenged if there is no evidence of any impairment or disturbance in their mental functioning. No one else can make decisions on behalf of another competent person[101] and to force an alternative, for example by physical means, would be an assault.

105. A person's mental functioning may be affected by mental or physical illness, a head injury or their consumption of alcohol or other drugs. These factors could limit the person's ability to take decisions for themselves. At present, guidance on who should undertake decisions or actions on behalf of that person is absent from statute. Common law has therefore developed to fill the 'gap'. The case of re F[102] confirmed that where an action taken on behalf of an individual who lacked the capacity to consent to that action was necessary, reasonable and in their best interests, that (otherwise unlawful) action could be judged lawful under the 'principle of necessity'. The principle of necessity is not equivalent to having consent but constitutes a defence if an action is subsequently challenged.

A doctor who physically examines and subsequently operates on an unconscious person can argue, if later challenged, that although the patient had not given consent to the procedures, their action was necessary to save their life. Similarly, a nurse who undresses and washes a person with advanced dementia can argue that this action was necessary for their health.

106. Despite the existence of the principle of necessity, the Law Commission report identified uncertainties in the present law regarding informal substituted decision making.[103] Much of the evidence we received also made clear that the law regarding informal substituted decision making is not widely understood.[104] The Making Decisions Alliance for example, told us:

"…many organisations representing carers have been concerned that they are unsure about how to make decisions which represent the views of people who lack capacity and they want clarity about what day-to-day decisions they can make without going to the courts for formal authorisation, so the general authority is positive in the sense that it will dispel the doubts and confusion from carers about what they can do."[105]

107. We heard evidence that reliance on the common law is not an adequate alternative to legislation in this area, not least to ensure compliance with the Human Rights Act.[106] The present common law approach does not provide adequate protection for those providing support to individuals who lack capacity. The absence of statute has meant that there has been no formal guidance on informal substituted decision making, as would be provided by a Codes of Practice. Nor are the duties and responsibilities of those making decisions on behalf of others immediately apparent. Furthermore in the absence of any ready means of appeal, the rights of people who lack capacity are not adequately protected.[107] By creating a general authority, the draft Bill codifies in statute what has become practice under common law, incorporating the principle of respect for the autonomy of a capable person. The intention is to clarify the circumstances in which actions and decisions can be taken on behalf of adults who lack capacity without obtaining formal authorisation, while holding decision-makers accountable for their actions. It is not intended that the general authority would convey any new or additional powers on anyone acting on behalf of an incapacitated person that they would not already have under existing statute or the common law. Thus, under the general authority it would be lawful for a person to act for someone who lacks capacity where in all the circumstances it is reasonable for the person to take that particular action and the act is in the incapacitated person's best interests.

A doctor wishing to examine someone would first be expected to determine the person's capacity to consent to examination. If the person lacked capacity to consent then the doctor could lawfully examine them if it was reasonable and in that person's best interest to do so. As is currently the case, no one else has the right to consent to medical treatment on behalf of the incapacitated person but the 'general authority' would provide the legal authorisation for the doctor to carry out the examination in the absence of consent.

A carer in a group home regularly goes shopping with Mr G., a man with learning disabilities. Mr G likes to look after his own money but sometimes gets into arguments over how much he needs to give to the shop keeper. He can recognise coins but he is uncertain how that relates to the price of the goods and he also becomes very confused over change. He has been known to give away more money than he should and also to argue because the shop keeper requires more to fully pay for the goods. His carer is uncertain how to resolve this dilemma. Given that it is clear on assessment that Mr G lacks the capacity to make such financial decisions the general authority would allow the carer to ensure that the proper price was paid for the goods providing it was in Mr G's best interests. In deciding what was in his best interests the carer would have to take due note of the fact that Mr G wished to buy the goods in question and to work with Mr G so that he felt involved in the transaction. As set out in the Codes of Practice any intervention should be the least restrictive and the most enabling. Mr G should hold his own money and be supported in the choosing and budgeting process. The carer would also be enabled through the General Authority to ensure that Mr G was not taken advantage of or inappropriately refused to pay.

Mrs R is caring for her husband who has Alzheimer's disease. He has become increasingly confused and forgetful. He is neglecting himself and can be at risk as he wanders at night and walks out of the house saying he is going to work. He sometimes goes for respite care at a Local Authority run rest home. His level of confusion varies but he is often uncertain where he is or who members of his family are. His wife and family have to provide for most of his day to day needs and sometimes they have to stop him leaving the house for his own safety. Such actions are acceptable under the General Authority as it is clear that Mr R has lost the capacity to make these day to day decisions for himself due to the presence of Alzheimer's disease, and it is in his best interests that his basic needs are met and that he is prevented from wandering out of the house unaccompanied. The Codes of Practice provides guidance for the family and also to the Local Authority home staff who need to balance respect for his wishes, as far as they can be ascertained, with their duty to care for him in manner that is the least restrictive and most respective of his and his family's wishes.

108. We are convinced that the present situation regarding informal substituted decision making would benefit from clarification, but very few witnesses expressed unqualified support for the general authority as a means to achieve this goal. We have heard evidence of a wide range of concerns regarding the provision which we discuss in more detail below.

Concerns arising from drafting and terminology

109. A number of the concerns which have been brought to our attention seem to be premised on a misunderstanding of the general authority as it is set out in the draft Bill. The extent of the misunderstandings apparent in the evidence we have received suggests that the drafting of this provision is not sufficiently clear. Many interested parties appear to be under the erroneous impression that the general authority would be assumed by a single individual who would then take all decisions on behalf of an incapacitated individual.[108] In fact the general authority is for the relevant person, in the context of a specific decision or action, at a particular point in time, so long as it is reasonable for that person to act. Others have suggested that the general authority may be used by carers to justify taking decisions for which they would otherwise need formal authorisation.[109] In fact the general authority is not intended to convey any new powers on anyone but rather to clarify the uncertain principle of 'necessity'.[110]

110. We have come to the conclusion that the term 'general authority' itself has contributed to the misinterpretations apparent within the evidence we have received. The word 'authority' implies an imposition of decision making upon an incapacitated individual rather than an enabling process designed to enact decisions taken in their best interests. This may have contributed to perceptions of the general authority as likely to promote 'overpaternalistic attitudes'[111] towards incapacitated individuals. We are convinced that semantic issues are important in affecting public perceptions of the draft Bill as well as in determining legal interpretations of the provisions it contains.

111. We recommend that clauses 6 and 7 be redrafted to clarify the legislative intent of the general authority, in order to counter what appear to be widespread misunderstandings of the concept and its purpose. It might also be helpful for the Department to consider an alternative to the term 'general authority' which would avoid its misleading connotations and clarify that it is intended to convey permission to act in the incapacitated person's best interests in circumstances currently covered by the Common Law.

112. Clause 6(1) permits the general authority to be relied upon by anyone 'providing any form of care for another person'. Several witnesses expressed concern that the Bill provides no definition of what such 'care' would entail.[112] The need to define the term 'care' is particularly relevant to the circumstances of day-to-day decisions taken (under the general authority), especially by informal carers or other non-professionals. We recommend that the Department should clarify the term 'care' in clause 6 (1) and in any guidance given under the Codes of Practice.

113. In addition, we recommend that a sustained and comprehensive training programme for professionals, and a public information campaign for informal carers should be implemented, in order to provide these groups with an accurate understanding of the general authority.[113]

114. We feel however, that even if the drafting and terminology of the general authority was clarified, a number of substantive areas of concern would remain. These areas of concern (discussed below) include:

• Best interests
• Reasonable belief
• The scope of the general authority
• The adequacy of safeguards
• Further exclusions
• Dispute resolution mechanisms
• Use of force

Best interests

115. We have already made a number of general recommendations about the formulation of the concept of best interests in clause 4 (chapter 7). Under clause 6(6), any decision or act taken under the general authority must be in the best interests of the incapacitated individual. We heard evidence that the concept of best interests was not given sufficient priority within the clause.[114] We recommend that in re-drafting clause 6 the Department should emphasise the over-riding importance of the best interests of the person concerned, as defined in clause 4.

116. Organisations and self-advocacy groups of people with learning difficulties told us they are concerned that the general authority would prioritise the protection of carers over the best interests of incapacitated individuals.[115] Witnesses from the Association of Directors of Social Services described the general authority as a 'carer's charter' which could reverse the progress made in person-centred planning in recent years.[116] We are of the opinion that the intent of this Bill is to ensure that all those with impairments in mental function that might affect decision-making capacity have the right to make those decisions that they have the capacity to make and to have those decisions respected. In the case of those decisions and situations where such capacity is lacking, the person concerned should be involved, as far as it is possible, in helping to determine the outcome of any decisions made by others, so as to ensure that it is in their own best interests and that it gives due respect to any wishes they have expressed in the present or the past. We are concerned that the provision of the general authority should not undermine the 'enabling' ethos of the draft Bill.

Reasonable belief

117. As discussed in paragraphs 100-102 above, the notion that decisions and actions may be undertaken under a standard of 'reasonable belief' has caused considerable concern.[117] Clause 6(1) states that the general authority may be exercised by a person who 'reasonably believes' that an individual lacks capacity in relation to a specific decision. Although 'reasonableness' is a commonly used legal concept, we heard evidence of concerns that the concept might be misunderstood by lay persons acting under the draft Bill.[118] We recommend that a reasonable belief should be objectively held.

The scope of the general authority

118. We share the concern expressed by many of our witnesses at the lack of guidance on the face of the Bill as to the full scope of the general authority.[119] From the examples given in the 'Commentary and Explanatory notes' accompanying the Bill[120] it seems that the two key factors determining whether an act or decision would be reasonable under the general authority are its significance and the length of time in which it must be undertaken.[121] Where a decision is of relatively low significance (deciding what to wear or what to have for breakfast) it would be reasonable for it to be taken under the general authority providing there was a reasonable belief that the person lacked the capacity to make the decision and the decision was in their best interests. Such a decision could reasonably be taken however long was available for it to be undertaken. Where a decision is of more significance (where to live or whether to undergo a medical procedure), the time available for the decision to be undertaken becomes relevant. Significant decisions may only be taken under the general authority if there is insufficient time to seek formal decision-making authority. Thus for example, a doctor who amputated a limb from a temporarily incapacitated individual in order to save their life could retrospectively claim to have acted under the general authority.

119. We strongly recommend a redrafting of the clauses concerning the general authority in order to clarify that its use is intended to be limited to day-to-day decision-making and emergency situations.

120. The lack of guidance on the face of the Bill makes it very difficult to determine where the boundaries fall between the general authority and the formal powers provided within the Bill. As the Making Decisions Alliance told us,

"with the general authority being so broad, we do not really see many situations where a family or carer would feel the need to become a deputy. That is a problem which again is a reason why the general authority needs to be more circumscribed."[122]

121. We heard evidence that the general authority would be open to significant misuse if the concept and its scope were not better defined.[123] Many of the concerns centred around the potential financial abuse of incapacitated individuals.[124] It was suggested that such abuse could be limited by restricting the amount of money which could be used or invested on behalf of an incapacitated individual and, for example, excluding the sale of their property[125] (see para 129 for our recommendations on exclusions from the general authority).

122. The question of the scope of the general authority is complicated by the fact that the same decision might be more significant for one individual than for another. Where an individual is only capable of making relatively simple choices, these decisions take on proportionally more significance for that individual. Witnesses from self-advocacy organisations of people with learning difficulties told us that,

"The general authority to act is open to abuse. Paid carers and relatives could say that we cannot make a choice because it is what is best for them rather than best for people with learning difficulties... Our members have told us about their relatives and paid carers bossing them about, this shows it is unwise to put our faith in these people to really allow us to make our own choices."[126]

123. Under the general authority it would be relatively easy for someone to take 'day to day' decisions on behalf of an incapacitated individual who in fact could have made these decisions with proper support.[127] We recommend that the Codes of Practice relating to the general authority should include a specific reminder that all practicable steps must be taken to help an incapacitated person contribute towards the process of every decision made on their behalf, however minor.

The adequacy of safeguards

124. The general authority aims to provide a framework for informal substituted decision-making together with the associated safeguards that balance the rights and needs of people with incapacity. In the evidence we received however, concerns about the poorly defined scope of the general authority were accompanied by calls to increase the safeguards surrounding the provision, which was described variously as an 'startling proposition',[128] 'carte blanche'[129] and 'almost a blank cheque'.[130] Mr. Clements of the Law Society of England and Wales told us,

"The Law Society has always welcomed the general authority on the basis that there would also be a public law anti-abuse provision and we are now being asked to look at a Bill which has one without the other and we are not surprised that a number of organisations are concerned because it appears slightly lopsided."[131]

Mr. Ward of the Law Society of Scotland told us he was 'pretty sure' that if the general authority were to be introduced as it stands,

"you would have lots of litigation for at least a decade… In some ways if there was not lots of litigation I would be even more worried because people would just be going ahead and using the general authority in all sorts of situations, appropriate or inappropriate, without challenge."[132]

125. It was felt that it would not be easy for individuals acting under the general authority to be held accountable for their actions.[133] Various witnesses proposed ways of remedying this situation. The Making Decisions Alliance suggested that there should be a requirement for the general authority to be 'triggered' as part of a case conference or review discussion, but this proposal seems to misunderstand the nature of the general authority (see paragraphs 109-111 above). The Association of Directors of Social Services suggested that local authorities should have stronger powers, or even a statutory duty, to intervene in cases where there was concern over actions taken under the general authority.[134] Other witnesses suggested that individuals undertaking actions under the general authority should be required to keep records of their actions.[135] Professor Williams for example, suggested a requirement to keep simple pro forma accounts could be placed upon those acting under the general authority.[136] It seems to us that such a requirement would be overly bureaucratic for carers engaged in the day-to-day care of incapacitated individuals. It is also difficult to see how such requirements could be enforced without the introduction of a formal system of monitoring. We conclude that the Codes of Practice accompanying the draft Bill should emphasise that all persons undertaking actions or decisions under the general authority must be aware that they may subsequently be called upon to justify their actions. They should therefore maintain sufficient records in order to be able to show that their actions were reasonable and in the best interests of the person in question.

126. The Law Commission's recommendations included detailed proposals for the independent supervision of medical and research procedures involving people lacking capacity.[137] For example, it was proposed that a second opinion should be required for specified serious or controversial treatment decisions (for example abortion), in a similar manner to the requirements under the Mental Health Act.[138] Responding to this proposal, Lord Filkin told us,

"The Code of practice will give detailed guidance on the circumstances where a doctor or other health professional should obtain a second opinion. However, I don't think that an actual requirement for this to happen in certain circumstances would be either achievable or desirable on the face of the Bill itself."[139]

127. We disagree with Lord Filkin's assessment. We recommend that consideration be given to imposing a statutory requirement for an independent second medical opinion to be sought in relation to the need for serious or invasive forms of medical treatment.

Furthermore we conclude that greater availability of advocacy services would provide a counter to the potential for an excessive or inappropriate use of the general authority [140]

Further exclusions

128. Some witnesses felt there were other kinds of decision which should be included amongst the excluded decisions set out in clauses 26-29. The Making Decisions Alliance expressed concern about the range of medical treatment decisions which could be taken under the general authority.[141] The Adults with Incapacity (Scotland) Act 2000 requires a formal procedure whereby a Certificate of Incapacity has to be produced for all medical treatment, except in emergencies. Dr. Lyons, a psychiatrist practising in Scotland, told us however that this system 'proved very difficult to work for many reasons' and advised us 'not to go as far down the certification/ documentation road that Scotland has.'[142]

129. We recommend that the Bill makes provision for a Regulation making power to enable further specific decisions to be excluded from the general authority and therefore always taken to the Court of Protection. This should include:

• those decisions currently requiring court authorisation such as requests for the sterilisation of people lacking the capacity to consent;
• the withdrawal of artificial nutrition and hydration from patients in a persistent vegetative state;
• any procedure of an experimental kind that might carry significant benefits but which also carries significant risks (a situation exemplified by recent attempts to treat a person with new variant CJD); and,
• significant decisions concerning the management of an incapacitated person's financial affairs.

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.[143] 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.[144] 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.[145] 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.[146] 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.[147] 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.[148] 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.

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99   Law Commission Report 231, 1995, Part IV Back

100   CM 5859-II page 8 Back

101   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

102   [1990] 2 AC 1 Back

103   Law Commission Report 231, part IV Back

104   Ev 191 Q513, Ev 208 Q545 Back

105   Q179 (Mr Kramer) Back

106   Ev 190 MIB 564 Back

107   As illustrated by cases such as re C [1994] 1 All ER 819 and R v Bournewood Community and Mental Health NHS Trust ex parte L [1998] 3 All ER 289 Back

108   Ev 228  Back

109   Ev 10 Q41, Ev 12, Ev 56 Q100 Back

110   Law Commission No 231 (1995) para 4.2 Back

111   Ev 16 MIB 991 Back

112   Ev 12, Ev 35 para 4.5.7, Ev 115 Q313 Back

113   Ev 36 para 4.5.12 Back

114   Ev 182 para 7(a) Back

115   Ev 231 paras 5 and 9, Ev 232 Q646 (Mr Lee) Back

116   Ev 182 MIB 1213 Back

117   See for example Q194 (Mr Kramer) and Ev 35, para 4.5.5 Back

118   Ev 206, para 6 Ev 34, para 4.4.1 Back

119   See for example Ev 99 Q281, Ev 35 para 4.5 Q401 Back

120   CM 5859-II Back

121   Q181 (Mr. Broach) Back

122   Q205 (Mr. Broach) Back

123   Q33, Q434, Qs 617-8 Back

124   Ev 11 MIB 584, Ev 183 MIB 989, Ev 183 MIB 1049 Back

125   Q584 (Mr. Clements) Back

126   Q646 (Mr Lee) Back

127   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

128   Q17 (Mr Ward) Back

129   Q104 (Mr McCulloch) Back

130   Q584 (Mr Clements) Back

131   Q594 (Mr Clements) Back

132   Qs.40-41  Back

133   Ev 196 Q532-3, Ev 231 para 5(d) Back

134   Q464 (Mr Collingridge) Back

135   Q179 (Mr Kramer) Back

136   Ev 190 MIB 564 Back

137   Law Commission No 231 Part VI Back

138   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

139   Ev 284 MIB 1221 Back

140   See Chapter 16 of this Report and also Ev 43 para 56.12 Back

141   Q181 (Mr Broach) Back

142   Ev 11 MIB 989 Back

143   Q41 (Mr. McClements), Q281 (Dr. Wilks) Back

144   Q314 (Dr. Ehlert) Back

145   Ev 224 MIB 1215 paragraphs 8-13 Back

146   Ev 223 MIB 1212 Back

147   Q315 (Dr Zigmond) Back

148   Q720 (Lord Filkin) Back

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Prepared 28 November 2003