Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

25. Memorandum from Denzil Lush, Master of the Court of Protection (MIB 1049)


  1.  I support the broad thrust of the Bill, but I think it's weak in terms of protection. This can be remedied fairly simply with little need for extra resources. Principally, what is required is a change in emphasis in the introductory clauses, and to extend the offences of ill-treatment and neglect to cover financial abuse.

  2.  Mental health legislation in England and Wales has traditionally oscillated between patient autonomy and self-determination, on the one hand, and benign paternalism and protection, on the other (qv Clive Unsworth, The Politics of Mental Health Legislation, Oxford University Press, 1987). Striking the right balance is about as achievable as discovering the philosopher's stone or the holy grail.

  3.  The Law Commission's draft bill, which was published in 1995 and forms the basis of the present Mental Incapacity Bill, was something of a high-water mark in terms of autonomy. Since then, the pendulum has swung the other way, towards greater protection and the individual's right not to be abused.

  4.  I don't believe that, when it published its report on Mental Incapacity in 1995, the Law Commission was fully aware of the extent of financial exploitation, particularly affecting the elderly mentally infirm. Certainly, the more important surveys on abuse have postdated that report. But, even if it was aware, it failed to address the problem by providing adequate, private law safeguards.

  5.  Although its private law protection was weak, the Law Commission's public law proposals were quite robust. These largely replicated the Children Act 1989, though it has to be said that, unlike mentally incapacitated adults, children are rarely the victims of financial abuse. In any event, the public law proposals were jettisoned by the government in Making Decisions (1999), because, I assume, they were too expensive. So, the current draft Bill, so far as it has inherited the Law Commission's recommendations, has already been stripped of the safeguards that would have gone some way towards striking a more even balance between protection and autonomy.

  6.  The offences of ill-treatment and neglect, described in clause 31 of the draft Bill, seem to relate solely to physical ill-treatment. If the legislation is to have any teeth, the government needs to make it clear that the financial abuse of people who lack capacity is also an area of zero tolerance. Some would argue that the existing criminal law is sufficient in this respect. I'm not sure I agree.

  7.  There are a number of well-intentioned statements in the first few clauses of the bill that should be included in a code of practice, rather than be enshrined in statute and thereby given greater status than they deserve.

  8.  For example, clause 2(2) provides that, "a person is not to be treated as unable to make a decision merely because he makes an unwise decision." There is nothing new about this statement. It has been part of English common law since at least 1850, when the then Vice-Chancellor came up with an almost identical formula. I agree with it in principle, but, if someone makes a continuous series of unwise decisions, should he or she be denied the protection the law provides for people who lack capacity?

  9.  Similarly, clause 3 restates the common-law principle that "a person must be assumed to have capacity unless it is established that he lacks capacity," but it over-simplifies the matter, and potentially favours abusers by not allowing the burden of proof to shift in appropriate cases.

  10.  For example, if an 85 year old woman with vascular dementia gives a door-to-door salesman, whom she has never met before, a cheque for £5,000, the onus should shift to him to prove that she had the capacity to understand the nature and effect of her actions when making a gift of that size, rather than there be an automatic presumption that she was capable of making the gift.

  11.  In Re W (Enduring Power of Attorney) [2001] 2 WLR 957 it was held that Mr Justice Hoffmann had inadvertently shifted the burden of proof in his important decision in Re K, Re F [1988] 1 All ER 358, where he set out the degree of understanding an individual needs in order to execute a valid enduring power of attorney. I understand that in the last month or so, in Williams v Williams, the judge intimated that Re W had also been wrong on the burden of proof. As you can imagine, if judges of the calibre of Lord Hoffmann can get it wrong, this is a complicated, controversial area, which needs to be considered very carefully.


  12.  I believe that anyone who acts for an incapacitated person (whether as an attorney, a deputy, or under the general authority to act) should be bound by various general obligations and, depending on the nature and formality of their appointment, a number of more specific duties.

  13.  By general obligations I mean, for example:

    —  to act reasonably;

    —  to act diligently;

    —  to act honestly and in good faith;

    —  to act within the scope of his or her authority;

    —  to limit interference in the life of the person without capacity to the greatest extent possible;

    —  to protect him or her from abuse, neglect, and exploitation;

    —  to respect and advance his or her civil liberties and human rights;

    —  to provide such assistance and support as is needed;

    —  where appropriate, actively to help him or her resume or assume independent or interdependent living;

    —  to involve him or her in all decision-making processes to the greatest possible extent;

    —  to encourage such participation and to help him or her to act independently in the areas where he or she is able;

    —  to encourage him or her to exercise whatever skills he or she has, and wherever possible to develop new skills;

    —  to exercise substituted judgment by respecting and following his or her wishes, values and beliefs to the greatest possible extent, so far as these are known or can be ascertained, and will not result in harm or be contrary to his or her best interests.

  14.  This list is by no means exhaustive, and one could add a number of other fiduciary duties—such as not profiting from one's position, keeping the incapacitated person's funds separate from your own, avoiding conflicts of interests, and the duty of confidentiality. A person acting for someone who lacks capacity also owes him or her a duty of care, which varies according to whether the attorney, deputy or other agent is acting gratuitously, or professionally for remuneration.

  15.  More specific duties would depend on the nature of the appointment or the form of intervention ordered by the court. They include, for example, making an inventory, giving security, filing annual accounts and reports, etc.

  16.  Clause 4 of the Mental Incapacity Bill provides, in subsection (1), that any act done for or any decision made on behalf of a person who lacks capacity must be done or made in the person's best interests. Subsection (2) then goes on to provide a "statutory checklist", which sets out various criteria for establishing whether an act or decision is in someone's best interests.

  17.  This "statutory checklist" attempts to define the elusive concept of "best interests", but it only covers a limited range of the considerations I described above as general obligations, and I have doubts as to its overall adequacy and efficacy.

  18.  I am also concerned about the prominence "best interests" is given in the entire scheme of things, and the fact that it is too prescriptive. Everything seems to hang on it. For example, one of the few grounds on which an attorney can be removed is if he has acted, is acting, or proposes to act in a way that is not in the best interests of the person who lacks capacity (clause 21).

  19.  I realise there is a danger that presenting prospective substitute decision-makers with a list of obligations could deter them from acting, but, if they are not willing to adhere to a basic code of conduct governing acceptable behaviour, then perhaps it would be better if they didn't act. The Law Commission considered this in an earlier report, The Incapacitated Principal (1983), which led to the Enduring Powers of Attorney Act 1985. At paragraph 4.69 it said:

    Accordingly we do not recommend that the attorney should be subject to a statutory duty to act. The problems that such a duty would solve would, we feel, be heavily outweighed by those it would create. And we are well aware of the risks of discouraging the acceptance of EPA attorneyships. In our view, the prospects of a donor's affairs being well run after his incapacity are dependent not so much upon duties and sanctions but rather upon his choice of attorney at the outset.

  20.  I am not convinced that the Law Commission's stance is still tenable. In Acting as Agent under a Financial Durable Power of Attorney: An Unscripted Role (Nebraska Law Review 75, 575 (1996)), the author (Carolyn L Dessin) suggested:

    Recently, however, concerns have been voiced that perhaps we have created an instrument of abuse rather than a useful tool. Sometimes the problems are as clear as wrongful misappropriation of the principal's property by the agent. Often, however, problems arise because the standards governing the behaviour of agents under durable powers of attorney have never been clearly defined. In many instances, those standards have not even been considered. Legislatures, courts, and commentators have often simply assumed the application of various bodies of law without careful reflection.

  21.  The term "best interests" doesn't feature in the Adults with Incapacity (Scotland) Act 2000. Instead, the Scottish Law Commission preferred to state various fundamental general principles, which now appear in section 1 of that Act. These principles, however, go little further towards creating a comprehensive code of conduct for substitute decision-makers along the lines I have described above.

  22.  In summary, therefore, I believe that, instead of imposing a duty to act in a person's best interests, there should be a comprehensive statement of the standard of conduct required of everyone who acts or makes decisions on behalf of persons without capacity, and if their behaviour falls below those standards it should be possible for the court to remove them as attorneys or deputies, or as the case may be, and if their conduct is criminal, they should face the prospect and consequences of prosecution.


  23.  I shall conclude my submission here for the time being, because, apart from considering whether there is a need for this legislation in the first place, the main issue for the committee to decide is whether the draft Bill has struck the right balance between autonomy and protection, and I wouldn't wish my comments on this fundamental issue to be weighed down by technical arguments on other less important aspects of the Bill.

August 2003

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