Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

30.Further supplementary memorandum from the Law Society (MIB 1212)



As we detailed in our supplemental note, the inability of persons who are the subject of an appointeeship order, to challenge this before an independent tribunal raises issues under article 6(1)—given that an interference with a person's social security benefits amounts (in certain cases) to an inference with a civil right for the purposes of article 6(1). We recommend that the legislation be amended to enable access to the Appeals Tribunal in appropriate cases to determine such disputes.

Clause 7

This authorises detention in certain situations. The clause as currently drafted does not require that the situation be an emergency (or one of "urgency") or that the period of detention be for as short a time as possible (or be the "least restrictive" possible). Article 5 will be engaged if the detaining person is an agent of the state—and the clause is problematical since it lays down no "procedure" as required by article 5(1).

  If the detaining person is not a public authority (for instance a private care home) then the detention could arguably constitute degrading treatment—and needs to be regulated by law (the European Court of Human Rights' jurisprudence holds states responsible for deficiencies in their domestic law when fundamental rights (such as the right not to be subjected to abuse) are at stake—A v. UK (1998; 27 E.H.R.R. 611; X & Y v. Netherlands (1985; 8 E.H.R.R. 235).

The new Court of Protection

We are concerned that legal aid (public funding) is not available for proceedings in the present Court of Protection and it needs to be made clear that this restriction will be removed in relation to the new Court. Given the width of jurisdiction of the new Court—the principles established in Airey v. Ireland (1979; 2 E.H.R.R. 305) requires that legal aid be available in appropriate cases. It is also arguable that the requirement that a "litigation friend" give the court a personal undertaking to be responsible for the costs of the proceedings, constitutes an unreasonable restriction of access and/or disproportionately discrimination in relation to the article 6(1) right—and this should be reviewed[1].

The general authority

The width of the general authority, the absence of any potential limits on its scope (ie financial maxima), the lack of adequate mechanisms for redressing abuse, and the absence of any objective requirement of reasonableness for the use of the power (ie it is based upon a subjective belief of reasonableness by the person exercising the authority) raise concerns as to whether the general authority provides sufficient respect for the vulnerable persons' possessions (ie its compliance with article 1 of the first protocol read in the context of the UK's undertaking under article 1 of the Convention).

Luke Clements

October 2003

1   Rule 21.4.3.c, Civil Procedure Rules. Back

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