Joint Committee on the Draft Mental Incapacity Bill First Report

19 Chapter 19: Jurisdiction


357. We noted that the draft Bill made no reference to how, if implemented, those parts which are different from the current Scottish legislation might affect those domiciled in one jurisdiction if decisions were required on behalf of somebody lacking capacity while in the other jurisdiction. Clearly this issue is not restricted to the draft bill however we felt it important to clarify the Government's intentions in this area. We raised this during oral evidence given by Lord Filkin, Parliamentary Under-Secretary of State, Department for Constitutional Affairs, and Mrs Rosie Winterton, the Minister of State at the Department of Health.[369] We gave a possible example of somebody living in England who had made an advance decision to refuse treatment and appointed a donee under an LPA who suffered a medical emergency and lost capacity while on holiday in Scotland.

358. Ms Claire Johnston, the Head of Legal Advice and Legislation Division of the Department for Constitutional Affairs, described this as "one of the areas where the draft Bill does not cover the ground and will have to". .Matching provisions of those of the Scottish Act would need to be added to the Bill before introduction. She intimated that the issue of domicile could be complicated by considerations of property ownership. But, as a general principle, the law of the country in which the person concerned was habitually resident should apply. Lord Filkin undertook to write to the Committee on that point.[370]

359. The response was contained in Lord Filkin's letter dated 7 November 2003 to Lord Carter in which he said:

    "our intention is to provide rules in the Bill to match those in the Adults with Incapacity Scotland Act 2000 and to be consistent with the Hague Convention on International Protection of Adults 2000. These provisions on private international are technical and will (be) inserted into the Bill for introduction". [371]

360. He added:

    "in relation to Lasting Powers of Attorney, the general position would be that an attorney appointed in England would be able to act on the incapacitated adult's behalf in Scotland. In general the law that applies would be that of the incapacitated adult's habitual residence at the time when the LPA was made. English law would be applied to matters such as whether the LPA is valid. However, the manner in which the attorney can make his decisions is likely to be governed by Scottish law.

    "In relation to the application of the advance directive (sic), the Scottish administrative and judicial authorities generally would apply Scottish law. The authorities are empowered to apply the law of England and Wales if it is in the adult's best interests and if the circumstances demonstrate a substantial connection to England and Wales. The Scottish authorities would take an overall view of the situation. It may be more likely, where it is an emergency situation, that Scotland would take a pragmatic approach and apply its own law. That would mean the doctor in charge doing what is reasonable in the circumstances although the incapacitated adult's representative could apply to court for an order if they wished to do so".[372]

361. We were rather surprised that the Department had not included in the draft Bill any consideration of the jurisdictional implications of the different Scottish legislation for those domiciled in one jurisdiction who suffer incapacity and require decisions to be made while in the other. We acknowledge that legal complexities might be involved in some cases and welcome the Department's confirmation that they intend to provide adequately for this aspect in the Bill when it is introduced.

369   Q23/24 (Mr Ward) Back

370   Ibid Q23 Back

371  Ev 496 MIB 1225 Back

372   Ibid Back

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Prepared 28 November 2003