27.Supplementary memorandum from Professor
John Williams, Department of Law, University of Wales, Aberystwyth
1. In paragraph 3 of my original submission
to the Committee I proposed that the scope of the draft bill should
be extended to cover inability to make a free decision as a result
of undue influence.
3 I had in mind situations where a person has legal
capacity but, as a consequence of extreme vulnerability, is susceptible
to undue influence by somebody in a position to exert an unacceptable
level of influence and thus destroy the notion of a free consent.
During my oral evidence concern was quite properly raised about
the possible misuse of any statutory power permitting compulsory
intervention in such cases. Unless there are safeguards, the right
to a private life will be threatened by over zealous use of the
power to intervene. Drafting such a clause is immensely complex.
2. Undue influence is not a new concept.
The 1993 case of Re T illustrates the potential use for
it in matters covered by the Bill. It concerned the effectiveness
of a refusal to undergo medical treatment which, it was argued,
was invalid because of the undue influence imposed on the patient
by her mother. The Court of Appeal held that the refusal was invalid.
It made a number of observations on undue influence in the context
of medical treatment Butler Sloss LJ refers to the nature of consent
"Although the issues of capacity and genuine
consent or rejection are separate, in reality they may well overlap,
so that a patient in a weakened condition may be unduly influenced
in circumstances in which if he had been fit, he would have resisted
the influence sought to be exercised over him. The patient may
make a decision which is limited in scope, and there may also
be the situation where no decision is made and in those circumstances
the principle of necessity will apply . . ."
This demonstrates that the requirement for a
freely given consent goes alongside the need for capacity in determining
whether an effective consent/refusal has been given. The inclusion
of undue influence would, it is suggested, be consistent with
what the Bill is seeking to achievethat is, protection
for those who are unable to make decisions for themselves. It
is interesting that she regards a decision taken without genuine
consent as invoking the principle of necessity (as per Re F 1990)
and with it the use of "best interests".
3. If it is accepted in principle that the
Bill should include reference to undue influence, it is necessary
to define its scope. Lord Donaldson identified two aspects when
considering the effect of outside influences:
"First, the strength of the will of the
patient. One who is very tired, in pain or depressed will be much
less able to resist having his will overborne than one who is
rested, free from pain and cheerful. Second, the relationship
of the `persuader' to the patient may be of crucial importance.
The influence of parents on their children or of one spouse on
the other can be, but is by no means necessarily, much stronger
than would be the case in other relationships. Persuasion based
upon religious belief can also be much more compelling and the
fact that arguments based upon religious beliefs are being deployed
by someone in a very close relationship with the patient will
give them added force and should alert the doctors to the possibilityno
morethat the patient's capacity or will to decide has been
overborne. In other words the patient may not mean what he says."
4. The strength of the will of the patient
does, as Lord Donaldson suggests, depend upon the person's vulnerability
and the context within which the decision making process takes
place. In clause 1 of the Draft Bill attached to the Consultation
Paper on Vulnerable Adults (Scottish Executive, 2001) the
term "vulnerable adult" is defined as follows (excluding
the words in square bracketssee below):
"This Act applies to vulnerable adults,
that is to say to adults who for the time being are both:
(a) unable to safeguard their own welfare,
[personal safety] property or financial affairs [and as a consequence
are at risk of significant harm]; and
(b) in one or more of the following categories
(i) persons in need of care and attention by
reason either of infirmity or of the effects of ageing;
(ii) persons suffering from illness or mental
(iii) persons substantially handicapped by disability."
This is a possible model for the proposed bill
for England and Wales. The words within the square brackets are
not in the Scottish draft; however, I suggest that their inclusion
would help to avoid the risks of an over intrusive law that disregards
5. With regard to the context in which the
decision is made (the second factor identified by Lord Donaldson),
it is necessary to explore the relationship between the vulnerable
adult and the person alleged to be unduly influencing him or her.
Under existing law lifetime gifts made within a particular relationship
(not by a will) may be presumed to have been made under undue
influence. These include gifts by patients to doctors, by clients
to solicitors, to religious advisers by recipients of the advice,
and by children to their parents. This is something that could
be developed if the Bill included reference to undue influence;
there could be a rebuttable presumption of undue influence when
the relationship is such that the validity of a vulnerable person's
consent/refusal should be questioned (for example, professional,
carer, family, spouse, partner). If the presumption was not rebutted
then the provisions of the Bill would be engaged. Decisions could
be made in the same way as for a vulnerable adult without capacity,
with the safeguards of the best interest test (or as I would prefer,
the human rights calculation). Clearly it would be possible to
prove undue influence by persons other than those in a special
relationship; however, the person alleging it would not have the
benefit of the presumption.
There is much sensitivity around the presumption
of undue influence, not least by caring members of the family
who may feel affronted by the idea that their input into decision
making might be presumed to be tainted. This needs to be addressed
in Codes and in the information leaflets. The point is, it is
in the interests of the vulnerable adult that they have this protection.
6. Another aspect of the context within
which the decision is to be taken is the behaviour of the person
seeking to influence the vulnerable person. The influence must
be "undue"; persuasion in itself does not vitiate the
consent/refusal. Good professional practice in advising a vulnerable
adult of the benefits of residential care over community care
would easily rebut the presumption. Advice given to a vulnerable
adult by a son or daughter that he or she should sign over all
their property to them would be less easily rebutted, especially
in the absence of independent legal advice.
7. Returning to the draft Scottish Bill,
the proposal there is that before intervention in the life of
a vulnerable adult is permissible, his or her consent should be
". . . except that his refusal may be disregarded
by a court or other person to whom it falls to authorise or effect
such intervention if it is reasonable to believe that it is a
refusal wholly or mainly consequent upon
(a) his being mentally disordered; or
(b) his having been pressurised by some
other person." (clause 2(1)).
Again, this may be a template for use in England
and Wales, although it is less helpful than the definition of
8. To summarise, a clause seeking to widen
the remit of the Bill to include some vulnerable adults with capacity
would need to address the following:
(a) Vulnerabilitythe Scottish Draft
Bill is of assistance.
(b) Normally the autonomy of the vulnerable
adult would be respected, even though the decision may be irrational
or not in his or her best interests. However, in cases of high
levels of vulnerability plus the risk of significant harm,
compulsory intervention should be possible.
(c) If so, the Bill would need to address
the context within which the decision is being made.
(i) The relationship between the "decision
maker" and the "persuader". Here there is the possibility
of including a rebuttable presumption of undue influence in certain
relationship. I would emphasise that the presumption would be
extremely useful, although it is not an essential component of
extending the law to a wider group of vulnerable people.
(ii) The use of legitimate persuasion
should not be deemed to be undue influence.
(d) Any decision to intervene, and the nature
of that intervention, must satisfy the test of proportionality.
3 The term "undue influence" is used in
this response. However, it is possible that another term could
be used such as "unacceptable pressure" if it was felt
necessary to distant the concept from existing commercial law
and contract law cases. Back
The Bill was drafted by the Scottish Law Commission in its Report
on Vulnerable Adults (Scot Law Com No 158). Back
Note that the Scottish Executive in its paper identified four
distinct groups and, on the grounds of equity, argued that there
is a case for extending the protection of the law beyond the vulnerable
with mental disorder. The four categories are (i) mentally disordered,
vulnerable and incapable by reason of mental disorder; (ii) mentally
disordered, vulnerable and not incapable; (iii) not mentally disordered
but vulnerable and incapable because of inability to communicate
due to physical disability, and (iv) not mentally disordered and
not incapable but vulnerable because of age, infirmity, illness
or physical disability. (See para 18). Back