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
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
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)
 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  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 honestly and in good faith;
to act within the scope of his or
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
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 dutiessuch
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
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
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