Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

Examination of Witnesses (Questions 512-519)


14 OCTOBER 2003

  Q512  Chairman: Professor Williams, thank you very much, you have been extremely patient in waiting. I think you heard about housekeeping at the beginning so I do not need to repeat that. If you would introduce yourself and then I will ask the first question.

  Professor Williams: My name is John Williams. I am Professor of Law at the University of Wales (Aberystwyth), and I am head of the Department of Law.

  Q513  Chairman: Thank you. As there is already a framework of case law that governs the area of mental incapacity, how does the draft Bill improve the situation? Do you think that Codes of Practice can be drawn up in such a way as to provide unambiguous guidance in areas that are not covered on the face of the Bill?

  Professor Williams: I think in response to the first point about whether the common law is adequate, the common law is okay and I think in fairness to the judiciary they have done a very good job with very little to work on. I think there have been some very sensitive and very humane decisions by the judges, particularly in the 2000 case of Re F. I think the difficulty is if we leave it to the common law, we are in a situation where we are making it up as we go along. Increasingly complex issues come before the courts and previous case law does not really allow us a way forward. I think this is particularly worrying since the implementation of the Human Rights Act where we are clearly dealing with issues concerning people's private lives, concerning their right not to be subjected to inhuman and degrading treatment, and yet the procedures that we have in place under the common law are not easily identifiable, they lack the element of predictability that really the European Convention expects us to have. I think a statute could provide greater clarity, would allow people to plan with greater precision for possible future incapacity and would, very importantly, incorporate procedural safeguards, because if you look at cases such as the Bournewood case, if you look at cases such as the Re F case I have just mentioned, I think in a sense you have resolved the immediate crisis, particularly in the Re F case, but the question is where do we go from here? Does she remain in the care home for the rest of her life? Does anyone think of reviewing the case, to think maybe we should remove the declaration? This is the problem with the common law. As I say, the judges have done a pretty good job. Butler-Sloss in the Re F case made it quite clear that they were filling in the gaps and that really this was an issue that Parliament should look at.

  Q514  Chairman: On the question of Codes of Practice, these will be extremely important. Do you think they can be drafted in such a way as to provide the unambiguous guidance needed?

  Professor Williams: I think in principle, yes, the devil is always in the detail. One could look perhaps at the model provided by the codes produced by the then Lord Chancellor's Department over the last two to three years, I think that they actually provide a basis for going forward. What we do not want is a situation where decision-makers are inundated with printed material because we know what happens; they are busy people. If we had a series of codes we would have to target different codes for different groups. Again, the Lord Chancellor's draft codes did this. In particular, we would have to target people who may have incapacity. If we do that I think the codes will have a role to play. I think we will have to be cautious about putting too much into codes because too much soft law, in a sense, brings us back to where we are at the moment, you have got a very loose statutory framework and the bulk of the detail is in codes and really amounts to a soft law rather than a hard law. But as a lawyer I would say that.

  Q515  Lord Pearson of Rannoch: In your opinion, do you think that the draft Bill is compatible with the 1998 Human Rights Act?

  Professor Williams: I think on the whole the answer is yes. It clearly envisages intruding into, for example, the private lives of people who may have incapacity, but I think that it also complies with provisions of Article 8(2) of the Convention. It will, and I think this goes back to the common law, provide a clear statement of the law as to what can and cannot be done, so we will have the lawfulness. I think it is within the remit of Article 8(2) in terms of health, morality, prevention of criminal offences and so on. Very importantly, the third requirement, I think it is a proportional response. I say all that in a vacuum because to some extent it will depend how it works in practice. It will also depend on what is in the codes that are going to be produced under the Act. On the whole, I think I am satisfied that it will be within the Human Rights Act. I am reassured in that conclusion by looking at what we have at present, which certainly in my view does not comply with the Human Rights Act, tolerates financial abuse, tolerates physical abuse, and basically there is nothing that can be done. Again, the European Court have made it clear in the case of A v UK, for example, that the state does have a positive duty to protect particularly vulnerable people. In a sense, I think where we are at the moment is incompatible and I would certainly argue that if the Bill becomes law that it will be consistent with the Human Rights Act.

  Q516  Mr Burstow: One of the themes running through today's evidence session has been balancing autonomy against protection, and in your submission you put forward the need for us to give some consideration as to how the test of capacity is actually put into practice, particularly in circumstances where abuse is believed to have occurred. Could you tell us perhaps a little more about how you think clause 1 might be extended to include extreme cases of undue influence over capable but vulnerable adults. What would be your formulation to enable the law to take into account those circumstances?

  Professor Williams: At the outset I think I fully accept that it is a very difficult piece of drafting if you are going to incorporate people with capacity but who are vulnerable. I think we might have a model in the draft Bill proposed by the Scottish Executive, their vulnerable adult protection laws, in terms of defining vulnerability and then saying that we will intervene but we will not intervene if the person refuses consent, except where, they refer to the person being "mentally disordered" and by that I think they probably mean incapacitated. The second reason for compulsory intervention without consent would be the person has been pressurised by some other person, so it incorporates the notion of undue influence. Indeed, there is a precedent in the common law, the case of Re T, which involved the withdrawal of consent to medical treatment, where the person withdrew her consent. As a result of a private meeting with her mother it was felt by the court in that case that she had exercised undue influence and the operation went ahead. The withdrawal of consent was deemed to be invalid. I think we have to look at this very closely because when we talk about incapacity, what we are talking about is decision-making, the ability to consent, and the ability to refuse. In law we have three elements to that. We have capacity, yes, that is important; we have the need for information, which is the second ingredient; and the third ingredient of consent is that the decision was freely made. If you put a gun to somebody's head and say "sign this", you do not have consent. Nowhere under the Bill is that kind of issue envisaged. What I identify are three categories. The first category, which in one sense is perhaps the easiest to deal with—do not read too much into that as it is a relative thing—is people with incapacity and we have got a common law at the moment, and indeed the draft Bill seeks to put it on a statutory footing. At the other end of the spectrum we have people who have capacity, who function quite well in society, there are elements of vulnerability maybe through age disability, but on the whole the abuse is minimal, and I hate to have a kind of tariff for abuse, but the abuse is minimal, they are coping and they are probably telling you "Do not do anything, because if you do intervene you destroy the one bit of family life that I have got". The category in the middle is the most difficult one because there you are dealing with people who have high levels of vulnerability, who maybe are totally dependent on an individual for care, and of course are open to undue pressure being placed on them to decide. At the moment they would fall outside the Bill. My argument would be that they should be within the Bill, subject to numerous safeguards. As I say, it is a very difficult piece of legislation to draft because otherwise you say this is not a valid consent they have given because of undue influence, but they have no remedy, whereas if they were just over the line into incapacity the remedy or the protection would be there.

  Mr Burstow: Our task is to make recommendations back to the Department about how the Bill might be changed to reflect those concerns. It would help us discharge that task if after today you could reflect further and offer us some more of your opinions on how you could give effect to what you have just said. You have set out the test of understanding, information and freely made being three elements and it would be useful if that could be translated into something that parliamentary draftsmen would feel more comfortable with.

  Q517  Mrs Humble: Following on from Paul's last point, what is the situation now and is this a genuine gap in the law? You said in your last sentence that for such an individual, if they have given their consent freely, or are deemed to have given their consent freely, there would be no remedy. Is that really the case? Is there no remedy under the existing law or is it more that it would be extremely difficult to prove it? I know of a case where one elderly person genuinely changed their mind, they did give consent freely to do whatever, or for the individual to take money off them, and all of a sudden, the next week, they said "Oh, I wish I had never done that" and then challenged it, but they had given consent freely. More often they do not want to get involved in the legal system so we are back to that catch where in order to proceed through the courts you have to have witnesses, you have to have somebody who is willing to come forward to give evidence to prove that they were misled, forced or victimised in some way. Is there actually a genuine gap that expanding the definition in this Bill would fill or would we still be in the position of not being able to prove cases?

  Professor Williams: I think that question raises a number of elements and it is perhaps best divided into criminal and civil law. I think what you say is absolutely right, and what Master Lush was saying was absolutely right in respect of the criminal law. In effect, I think what we have done is to decriminalise vulnerable adult abuse because rarely do we prosecute the cases of vulnerable adult abuse. In part that is an evidential problem and the case Master Lush cited is a good example—a person does not have capacity or it would not be in their best interests to give evidence. I cannot believe that is the case in every situation of vulnerable adult abuse, and yet talking to social workers, very rarely are they involved in criminal proceedings. If they worked in child protection they would be. If they are in adult services they are not. We do not use the criminal law. The Youth Justice and Criminal Evidence Act may help because it does provide some assistance for vulnerable witnesses to give evidence: pre-recorded video interviews; interactive video link and so on. That might help and it will be interesting to see what the effect of that particular piece of legislation will be. I think we have to accept that in criminal law you will not be able to prosecute in every case. Indeed, in some cases, as indeed with child abuse, prosecution will not be in the best interests of the person. I think the criminal law has a role to play and we need to raise its profile, which is why I welcome the central involvement of the police in the No Secrets vulnerable adult protection procedures. It is not a panacea by any means, please do not misunderstand me, but I cannot believe that the low level of criminal prosecutions in any way reflect the level of abuse that goes on of vulnerable adults. If you look to the civil law, the frustration that I come across quite often when talking to social workers is—looking at my middle category of very vulnerable people—"We know they are being abused, it might be physical, financial, emotional, sexual, or all four. We try to persuade them to do something, we try to get in place alternative methods of support, but the person still says no" and social workers will say that on Friday afternoons they have to walk away from that and wonder whether the person will be alive the following day. In law there is nothing that really can be done. We do not have the equivalent of Child Protection Orders, and I am not advocating that we go down the Children Act route, but the social worker is totally without any legal power in that respect. They do not even have a statutory duty to investigate such cases, which is a major gap because the abuser can turn around and say, "What are you doing here? Clear off. I own the house, you are not coming in", and we go back to the kind of Jasmine Beckford type case that we saw in child protection. There is a major gap and it is crying out to be filled by a new public law that recognises that in extreme cases compulsory intervention is going to be necessary, otherwise I think No Secrets is not going to work as it should because it is a constant frustration of social workers and health care professionals that "We cannot do anything and we worry what is going to happen if the person remains in their home". I come back to the positive obligation under the European Convention to protect people from inhuman and degrading treatment, and the question is do we have laws in place that do it? My argument would be that we do not and that is a major gap.

  Q518  Mr Burstow: What I am still not clear about from what you have said today, and in your own paper, is how do we get hold of defining "extreme" because the danger is we wind up with a definition that captures an awful lot more than that and, therefore, really does erode the autonomy of the individual. Can you help us a bit further with how we actually capture the definition of "extreme" cases?

  Professor Williams: I absolutely agree that is the danger. What I do not want to do is capture the second category I mentioned, people who function well even though they are being subjected to minor abuse. I think, in a sense, it comes down to identifying levels of vulnerability and levels of dependency. Undue influence is very difficult to prove, I think that has always been the case in terms of wills and other documents, but it is not beyond proof. Again, going back to some of the things that Master Lush was saying about burdens of proof, if there is a position of power and influence, maybe if there is a prima facie case that this is an abusive relationship and undue influence is being exerted, the burden of proof could be reversed. Yes, again there are human rights issues there that we have to look at, but it is not necessarily outside of the Human Rights Act to reverse burdens of proof in such cases in performance of our duty of protecting vulnerable people. I am quite happy to think on paper as to how we might go about it. If we look to the American experience it is do-able. There are various definitions. Most of the states have elder abuse protection laws. There are some useful models for defining vulnerability. It is really encapsulating the notion of vulnerability and also the relationship, it is looking at those two features: how vulnerable is this person; how close is this relationship?

  Q519  Mrs Browning: I just wanted to ask, following on from that, from what you have just said presumably from the American experience it is not a matter of categorising certain types of disability in any way and the relationship with the key person presumably comes into play there. Unless this is actually put in statute I cannot see how we are ever going to get the resources behind it because as it is a social services' responsibility, we all know that social services departments around the country, because of difficulties of resources, tend to prioritise their statutory responsibilities quite naturally, hence the amount of money that is spent on children's services because of that statutory obligation. Unless that is put into statute, I cannot see that there is going to be any progress in this area at all.

  Professor Williams: I think that is absolutely right and I think social services authorities are quite open about that, that they have to cover, as you say, their statutory obligations, which is why I think that a duty to investigate vulnerable adult abuse would be a very important development in terms of implementing No Secrets. On the resources issue, vulnerable adult protection will not be cheap, just as child protection is not cheap, it is going to cost. I do not think anyone has done the costing of this.

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