Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

27.Supplementary memorandum from Professor John Williams, Department of Law, University of Wales, Aberystwyth (MIB 1210)

  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]

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 as follows:

    "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 achieve—that 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 possibility—no more—that 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) [4]the term "vulnerable adult" is defined as follows (excluding the words in square brackets—see 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 disorder; and

(iii)  persons substantially handicapped by disability." [5]

  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 personal autonomy.

  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 obtained,

    ". . . 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 vulnerable adult.

  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)  Vulnerability—the 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

4   The Bill was drafted by the Scottish Law Commission in its Report on Vulnerable Adults (Scot Law Com No 158). Back

5   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

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