Joint Committee on the Draft Mental Incapacity Bill Written Evidence

110.Memorandum from Professor Michael Gunn, Nottingham Law School, Nottingham Trent University (MIB 1192)


  1.  The current law is not sufficiently clear to be allowed to continue in full application for much longer. If only for this reason, the draft Mental Incapacity Bill is to be welcomed. In fact, it is to be welcomed for more than this as it achieves a sound balance of varying interests.

  2.  The Bill's provisions only apply where a person is not capable of making decisions for themselves. The presumption of capacity (clause 3) makes it clear that the starting position is that everyone is assumed to be capable of making decisions for themselves. Whilst it is not entirely clear from clause 3, it is to be assumed that the burden of establishing that someone is not so capable would lie upon the person asserting it. What is clear is that the standard of proof is the ordinary civil one, ie on a balance of probabilities (clause 3(2)). There is no good reason why the criminal burden of proof (beyond a reasonable doubt) should have been adopted.

  3.  Further, the Bill makes clear what is capacity by way of a definition (clause 1 and clause 2(1)) that applies the only possible approach which is the functional approach.

    (a)  There is no global assessment of capacity, rather an assessment whether an individual can make the particular decision in question. It relies upon the ability to make the decision and focuses on understanding relevant information, ability to retain, and ability to use the information.

    (b)  Although the origins of the requirement to retain information as a separate element are the common law, it is difficult to see why it should be a separate element as it is, in truth, a part of the ability to understand (the person who cannot retain information at all cannot understand it, since to understand requires it to be in the mind for the understanding process to take place). Clause 2(4) would not be necessary were the separation of retention from the ability to understand not to appear in clause 2(1).

    (c)  The ability to understand is clearly a critical element. But so also is the ability to be able to use that information. A person cannot be regarded as capable if they have the capacity to understand but not the capacity to use that information to make a decision. This requires an ability to rationalise, but it does not require the decision to be a reasonable one (see also clause 2(2)), so it is a process requirement and not an outcome requirement.

    (d)  Crucial to the success in practice of the definition will be determining what information must be understood and processed. The more information and the more complex that information, the more likely that a person will not be able to understand or use it. Clearly most people are capable of making most decisions (an important initial proposition) and so no approach to capacity must result in those people being regarded, in fact, as incapable. The fact that they will not have to be assessed is true, but nevertheless, were they to be tested, they must be able to satisfy someone that they are indeed capable. This means that the amount of information to be understood must be that which the ordinary decision-maker must also be able of understanding and using.

    (e)  One real danger is that a person about whom capacity in question is required to go through tests which turn out to set a standard that most or many or some people presumed to be capable would not pass (but, to repeat myself, they are not required to pass the test as their capacity is never put to scrutiny).

      (f)  This is why it is important to ensure that the amount of information to be understood and used is consistent with that which most decision-makers can handle for themselves (and possibly with some help). Much of this guidance would need to be placed in a well constructed Code of Practice that is supplemented by high quality training and education so that those involved in the delivery of care to vulnerable adults and those involved in assessing decision-making capacity have the right understanding and as much guidance as possible such that they make valid and reliable decision and use appropriate approaches with regard to their client group.

  4.  It is a significant step that the legislation mandates the requirement to facilitate the person in making their decision (clause 2(3)). This underpins the desire to ensure that people make their own decisions wherever possible. It should also underpin the requirement not to set too high standards for capacity. What will be required by "facilitation"? Some guidance will be needed at least in the Code of Practice. The sort of factors to take into account in addressing the issue will include relevance of cost, time and other resources, and a recognition of the fact that someone cannot necessarily be made capable. However, simplification of tasks and repetition of tasks are two approaches that, in many, cases will make a difference. Further, even if someone does not become capable of making the decision for themselves, they may nevertheless be more involved in the process (as to be taken into account when considering the best interests, see clause 4).

  5.  Where a person is not capable of making their own decision, the only viable approach is a best interests approach, unless a person has already made a relevant decision themselves.

    (a)  The Bill allows an individual to make that decision and for it to be determinative through various approaches, not least the ability to grant someone a lasting power of attorney and the ability to make an advance decision to refuse treatment.

    (b)  But also the definition of best interests emphasises that the individual's wishes and feelings etc (clause 4(2)(c)) are factors to which regard must be had. They are, therefore, not determinative, and cannot be.

    (c)  Accepting that best interests is the only viable approach to making decisions where someone is not capable and has not legitimately made the decision (or created the means for making the decision) in advance, enables a careful assessment of the definition of best interest in clause 4. Whilst the legislation does not say so, it must be the case that there is only one course of action that is in the best interests of a particular individual. This is the point to which the courts have come in interpreting the common law jurisdiction to declare what is in the best interests of an incapable adult after the decision of the House of Lords in Re F [1990] 2 Appeal Cases 1.

    (d)  Of course, clause 4 provides no definition, but rather indicates that to which regard must be had in deciding what is in a person's best interests. This is the approach of the Law Commission and has received broad agreement over the years. The reality is that, at the end of the day, a decision has to be made on behalf of someone who cannot make it for themselves, after determining that which is relevant. When that has been done the decision reached must be the selection of one from what may be a range of options that in the opinion of the decision-maker (and subject to challenge through the court) best serves the interests of the incapable adult in question.

  6.  The Law Commission, in developing the same broad structure as that in the current Bill, developed certain basic principles that underlay their proposals and underlie this legislation, They do not need to be re-stated on the face of the legislation, but it is important to be clear that they do under pin it and that the legislation does comply with those criteria. In its 1991 consultation paper, the Law Commission identified those principles as being: normalisation, the presumption of competence, the least restrictive alternative, providing safeguards without stigma, and achieving a balance; and the broad propriety of those principles was confirmed by the Law Commission in its 1995 Report. Further to these principles is the need to be at least compliant with the European Convention on Human Rights, particularly Articles 6(2) and 8, and some of these issues are raised below.

  7.  The Law Commission and the drafters of this draft Bill are keen to achieve an improved position for vulnerable adults who cannot make their own decision. Further, any approach must achieve practicability. It is no point introducing a system that, whilst theoretically perfect, has no practical reality.

    (a)  The general authority to act reasonably (clause 6) endeavours to establish an approach that achieves the necessary practicability as it makes possible decision-making on a swift and principled basis that does not stretch budgets but whilst making sure that this does not apply in some circumstances (eg where there is a donee of a lasting power of attorney , etc), that some decisions cannot be made and that all decisions made through this approach are subject to the possibility of challenge. It is right to exclude very personal decisions, ie those decisions that really only someone deciding for themselves can make (see both clauses 7 and 26-29). More complex decisions will involve reference to the court, assuming that no other relevant decision-making structure is in place.

    (b)  One problem to be addressed is that there is no need to go to court to trigger the jurisdiction of the general authority to act reasonably. It might be alleged that this is a breach of either Article 6(2) or Article 8 of the European Convention on Human Rights. In fact, the draft Bill does provide a right of access to the courts, as it is possible to challenge decisions, and someone could challenge on behalf of the incapable adult. The real issue is whether the right to challenge does sufficiently protect the incapable adult. Some situations arise where the only people involved are the incapable adult and the person exercising the general authority. In this case, how are the interests of the incapable adult protected, ie how might a case get to court and how can we be sure that challenges that ought to be issued are so issued? The first response is to recognise that this system will not prevent all bad decisions, but it should not be imagined that a court-triggered system would do better. In many cases, the likelihood of a case being taken to court to trigger an authority to act is as low as a challenge being issued. This is not to be defeatist, but to be a realist. No system can prevent all bad decisions. The question is whether a good system is introduced and whether a better and adequately practicable system is available. The advantages of the general authority to act reasonably are first that it is practicable. Many decisions need to be made and the cost of any court-based system will produce means to avoid it because it will be perceived as too expensive and bureaucratic to deal with the situation. This would mean more bad decisions not being challenged than under the proposed system. Further, why should all decisions go through a court? A cogent argument can be made that to do so would be a breach of the Article 8 right of the incapable person to have their private life protected. It is submitted that there is, in reality, insufficient protection produced by a court-triggered system to warrant every decision having to go through a court or to be initiated by a court (eg a court appointing a manager to make decisions, etc). What Article 8 requires is that proper protection be provided for vulnerable adults whilst not imposing unacceptable restrictions on their freedom. This was clearly stated to be the position in X and Y v Netherlands, where the European Court decided that the balance was wrong as the vulnerable person had no right to initiate a police investigation by someone making a complaint on their behalf of sexual offences when they were incapable of doing so themselves. But the Court explicitly recognised the need to reach an appropriate balance between the freedom of sexual expression and the need to protect vulnerable adults—this is analogous to the present situation.

    (c)  In conclusion, the proposed procedure provides an appropriate balance of the various ECHR rights. The proviso would be that the Code of Practice should endeavour to underpin the proper approach, means of challenge should be as simple and expeditable as possible, education and training of professionals and carers is vital, and education of the public to understand what are the limits of deciding on behalf of incapable adults (eg elderly and now incapable parents or other relatives).

  8.  What does not appear in the legislation but what was proposed by the Law Commission was a variety means of dealing with some types of decision that it thought should not be determined by the general authority to act reasonably (eg a second opinion procedure in relation to some proposed treatments). Under the draft Mental Incapacity Bill, these will have to be dealt with either where there is a lasting power of attorney or through the Court of Protection. There were some significant advantages of the Law Commission scheme, particularly in terms of practicability and cost. The schema would enable certain treatments to be approved, without relying on the general authority to act reasonably, but without having to have recourse to a court decision. However, it may be that the demands of Articles 8 and 6(2) make a system of going through the Court a more appropriate approach for such treatments or other decisions. Requiring some decisions to be made by the court helps the argument propounded in note 7 above, as it demonstrates that considerable care has been taken in determining those decisions that can properly fall within the general authority to act reasonably (subject to a court challenge) and those that really need that authorisation in all cases.

  9.  Priority is given, over the general authority to act reasonably, for decisions made by a donee under a lasting power of attorney or a deputy appointed by the court (cl. 7(2)). This pays due respect to the principle of autonomy that underlies this proposed legislation. It can briefly be stated as being (a) a person makes those decisions that they are able to make; (b) where they cannot so make them at the time, priority is given to an advance decision to refuse treatment; (c) where they cannot so make them at the time, priority should subsequently be given to the person appointed by them to make those decisions; (d) where no such provisions exists, then decisions are made by reliance upon the general authority to act reasonably, except where the Court is involved and it may appoint a deputy to make such decisions. In principle, there seems in this approach to be due regard paid also to the protections provided for vulnerable people under Articles 8 and 6(2) of the ECHR, as mentioned also above.

  10.  Clearly, the ability to make a lasting power of attorney is a key approach in achieving a proper balance of the relevant interests. Crucial elements of the proposal to be welcomed are: (a) a clear statement as to the broad range of decisions that the donee will be able to make (cl 8(1)), with some clear exclusions including decisions that are too personal to be made by anyone else (cl 26), but also identifies certain decisions that can only be made if certain additional protections are available (see cl 10 in relation to the use of force to secure the doing of an act or a restriction on P's liberty; cl 11 in relation to gifts, see cl 11(2) for a sensible approach to those gifts that can be made); (b) a clear statement as to the way in which a lasting power of attorney can be made. Whilst concerns have been expressed about the need to register such documents, this must be an element of protection from improper decisions etc etc etc (c) a clear statement of the required qualities of the donee—clearly this cannot in legislation go very far, but no doubt either the Code of Practice or other guidance will raise matters that ought to be considered in relation to who to appoint (eg their age relative to the age of the donor; their fiscal capacity where finances are to be controlled; their abilities to respect others decision-making structures and approaches and to respect the need to make decisions in accordance with best interests, etc); (d) a clear statement of the circumstances in which a lasting power of attorney can be revoked, notably the donor, with capacity, revoking it (cl 11(2) and the incapacity of the donee causing revocation (cl 11(4) & (5)); (e) there is protection provided for the donee (necessary otherwise people may not agree so to act for fear of liability arising improperly); (f) and further protections through the role of the Public Guardian.

  11.  There must be a means of challenging various issues in court to satisfy Article 6(2), as is readily recognised by all those thinking about the ways in which decision may be made on behalf of people who are incapable of making them for themselves. It is important, therefore, that the court has the power to make the declarations as stated in cl 15 and so alter the understandable but awkward common law position post-Re F. In terms of the exercise of its discretion, the Bill retains the preference for the court to make a decision rather than to appoint a deputy (cl 16(4)(a)). This is readily understandable as a desire to limit decision-making on behalf of others and to provide a protection against abuse of the power by keeping limited the range of activities for deputies. This is supported by the desire to limit the scope and duration of deputies' powers whenever possible (cl 16(4)(b)). The areas for decision-making by the court and the potential powers of a deputy are inexhaustively listed in cls 17 & 18. The advantage of this approach is that it indicates the usual types of decisions that will need to be made and discourages moving into other permissible and potential areas unless there is a clear need so to do. The lists draw on existing case law in relation to both personal welfare matters and property and affairs and so reflect those decisions that in practice do need to be made.

  12.  Where a court has to appoint a deputy, it is important not only to be secure that the court's discretion will have been exercised appropriately (and is subject to appeal), but also that there is sound limiting of the discretion as to who to appoint, which appears to be achieved by cl 19. Further, the restrictions on the activities of a deputy in cl 20 similarly appear to be proper, notably the requirement that, even though properly appointed, a deputy should not make a decision where he knows or has reasonable grounds for believing that the donor now has capacity (cl 20(1)). This clearly underpins the legislation's commitment to respect for the principle of autonomy.

  13.  Much of the success of this legislation, as has already been noted, will depend upon the guidance provided in the Code of Practice. This Code will have a range of audiences with a range of needs. This includes health care providers. Some providers have regular contact with and experience of such vulnerable adults, such as learning disability provision and mental health provision; some providers may have fairly regular contact but not as much experience, such as accident and emergency; and some may have little contact or experience. Carers are an important audience. Some will have developed considerable expertise (especially the parents of people with learning disability), but others will have little experience or preparation (eg relatives of adults developing dementia, etc). Thus, the Code needs to address the needs of both professional and non-professional persons; experienced and non-experienced people, etc. But the Code alone will not ensure the delivery of this legislation in the manner that it deserves and needs so as to make life better for vulnerable adults, there is also a significant need for education and training. The needs of many professionals can be identified and thus education and training planned in advance. But it is less easy with some professionals and some carers, upon whom a dilemma may be thrust. Therefore, there needs to be general education about the need to know when a person cannot make their decisions and to whom to turn to for help. One of the most difficult issues, alluded to above, is the need to ensure that the procedures under the legislation are triggered when needed. Once triggered, there are adequate protections, but if the procedures of the Act are not triggered, there is no protection for a vulnerable adult, though there is not necessarily abuse.

October 2003

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