Joint Committee on the Draft Mental Incapacity Bill Memoranda


from the Law Society

1 September 2003


The Law Society of England and Wales has worked in co-operation with Making Decisions Alliance and approximately 15 organisations/individuals on the proposals contained in the Draft Incapacity Bill. These submissions have been prepared having regard to this work and the expertise of the specialist committees and working parties of the Law Society. This submission is also made on behalf of United Response, British Association of Psychologists, Mencap and Royal College of Nursing.

The Law Society welcomes the publication of this Draft Bill. However, whilst we would wish to fully embrace these proposals it is not possible to understand their actual impact without first examining the code of practice which is to accompany the legislation. Much of the detail on which we comment may be intended to be included in this code. In any event, we take this opportunity to raise some specific concerns which we consider would benefit from closer examination.

1.  Best Interests

1.1  Any act or decision made must be done in the best interests of the person. The best interests principle is extremely important in the implementation of the Act. It should focus the mind of whoever is making a decision on what is in the best interests of that particular person. However, it is imperative that the person's own decision making ability (and /or communicating it) is facilitated first. We are concerned that this should be emphasised in the text so that the best interests principle should only become relevant once it is established that a substitute decision is required. In other words a person should be free to take a risk, make a capricious or a bad decision or one that does not appear to be in their best interests so long as their capacity is not disproportionately impaired and that the decision was an informed one and free from undue influence.

1.2  The Bill does not in our view clearly distinguish between persons who acquire mental impairment from those whose impairment has always been present (for example those who have learning disabilities). The needs of these groups are different. A person with a severe learning disability may have capacity to make some decisions and should be encouraged to do so. The best interests principle is not applicable here, nor for that matter is the Bill save that it should emphasise the presumption of capacity and the requirement to facilitate a person's own decision making. Decisions could be best facilitated and supported by the use of non-legal advocates.

1.3  The factors taken into account will be different where a person has never been able to express a preference and where a paternalistic approach is to some extent unavoidable. Nevertheless an advocate may assist in gaining some insight into the persons own wishes and feelings. However, an adult who acquires a brain injury or develops a disease which impairs their mental capacity may nonetheless appoint a decision-maker (or make advanced decisions). Here the Bill needs to regulate substitute decisions and decision makers. In some respects these characteristics do not sit well together. This, in our view, has caused some misunderstanding that the Bill intends to impose or restrict a person's own ability to make decisions. A clear demarcation of the objectives of the Bill may assist in a better overall understanding of the legislative intent.

1.4  The listed factors to be taken into consideration in best interests decisions are not identical to those contained in the 1995 Law Commission recommendations. In our view regard to cultural diversity should be explicit. The Adults with Incapacity (Scotland) Act 2000 has a less passive/paternalistic concept of 'General Principles' that has been very successful. Careful thought needs to be given to this issue as it goes to the root of the legislation and how it will be applied to individual cases. It may be a case of finding the delicate balance between semantics and legislative intent.

1.5  In Scotland the power of attorney only remains in force for as long as it is required. There is no formal de-registering process. By applying the general principles to a person whose capacity fluctuates, the power is invalid during lucid intervals. The general principles being more person centred as opposed to having 'best interests' imposed means that it would be wrong in principle to impose the will of an attorney where the donor has capacity no matter how much he purports to be acting in his 'best interests'.

1.6  Care must be taken to ensure fluctuating capacity is acknowledged and not held back through bureaucracy. However, it needs to be manageable for others if capacity fluctuates from hour to hour, to protect third parties such as banks and contractors.

1.7  In terms of ethics, the Scottish General Principles are preferred to the Best Interests proposed. They are now tried and tested whereas 'Best Interests' departs from other jurisdictions notably US and Canada. If the general principles are not adopted we would suggest incorporating para 1(2) of the Scottish General Principles into England and Wales law.

1.8  Finally, given the weight this clause has on the application of Bill, we consider it should be placed as Clause 1 (along with the 'presumption of capacity') to indicate the importance of the principle throughout the Bill.

1.9  The code of practice should draw heavily - and explicitly - on the guidance given by the President of the Family Division, on the assessment, meaning and implications of competency and capacity, notably in Re MB 1997 2 FLR 426 (1997) 2 FLR 426 : [1997] FCR 541: [1998] 38 BMLR 175 and B v An NHS Hospital Trust 2002 [2002] 1 FLR 1090; [2002] 2 All ER 449: [2002] 65 BMLR 149. It would also be important to include practical case examples, following the format of the guidance accompanying the Disability Discrimination Act 1995.

2.  Public Law duty to investigate and protect in cases of suspected abuse or neglect

2.1  Children have long been protected by a public law duty enabling the NSPCC or a Local Authority to investigate, and take steps to protect a child from suspected abuse. The Law Society takes the view that it is time for vulnerable adults to have similar protection. This was recommended by the Law Commission. The absence of this in the Draft Bill fails to reflect widespread public support for the recommendations. Abuse, neglect or exploitation of learning disabled and elderly persons often goes unnoticed by the general public and the experience itself is often silencing for the individual. There needs to be a safe forum created where abuse, exploitation and neglect can be disclosed and addressed in the most appropriate manner using a multi-agency approach. We propose that social services and an appropriate NHS body should have investigative powers and duties which could be triggered through a code of practice to refer suspected cases which come to the attention of GP's, Social Workers or any concerned person. The court will be empowered to call for reports (Clause 39). It is suggested that there be corresponding Section 7(1) Local Authority Social Services Act 1970 guidance issued by Minister of State and Welsh Assembly to ensure compliance. The Draft Bill proposes a continuation of Lord Chancellor's Visitors (LCV's), however they lack the powers, resources, status and expertise of a Local or Health Authority. Also, LCV's are too restricted (Clause 49). They should include psychologists and neuro-psychologists etc.

2.2  Whilst exploitation may include financial abuse, it is difficult to monitor as there is rarely any manifestation to alert a concerned person. Nonetheless a duty to keep written records could be imposed subject to a de minimus rule of an estate under £5,000. In these circumstances the court should however be empowered to order that records be kept of a smaller estate, if it thinks fit.

2.3  Despite the retention of a criminal offence of 'ill treatment and neglect' (currently at s127 Mental Health Act 1983) the new provision does not include 'exploitation'. This should be included to apply to financial exploitation. However there are the incumbent problems of the criminal standard of proof. The offences do not address the wider issues of protecting the victim during investigation and providing a place of safety etc, or the threat of consequences resulting from disclosure to the police which may prevent vulnerable witnesses from coming forward.

2.4  Whilst the Court of Protection are to have power to call for reports, there is no corresponding duty for the reporting bodies to alert the Court that a need for investigation exists . It is a 'function' of the Public Guardianship Office to 'supervise' the exercise of donees' powers but there is no over-riding duty.

2.5  The Law Society argues for a range of parallel civil and public law remedies (not dissimilar to those provided by the Children Act 1989) to effectively protect this vulnerable group. It may be possible to effect this by rewording the Bill (and by adding "duties") and draw together all the powers under one heading. Presently the powers are dispersed throughout the Bill. This is confusing and fails to prioritise this important issue.

2.6  The success of the Scottish Act is due in no small part on the duties imposed on local authorities. In addition there was created a 'Mental Welfare Commission' which has oversight of both the PGO and the Local Authority. These practical safeguards are a desirable feature which should be incorporated into England and Wales legislation. This should also prevent a two-tier system for the protection of vulnerable adults being created in the UK.

3.  Problems with the General Authority

3.1  The Law Society welcomes this provision but with some caution. On the one hand it is a practical solution to the day-to-day authority to make decisions. However, the Bill provides insufficient safeguards. The general authority requires a counter balance of corresponding responsibilities and safeguards. There is anecdotal evidence that under existing financial powers, abuse runs at approximately 20% of cases. Where there are no formalities it is difficult to monitor the prevalence of abuse. The general authority applies in hospitals, care homes, day centres, private homes and any public place or setting where services are provided. The scope for misuse of these powers is therefore great.

3.2  Overall there appears to be a lack of guidance on the use of these powers. For example, there is no definition of 'care'. It is those who are providing "care" who make best interests decisions on behalf of others without checks. Where is the line to be drawn? The nature of the functions of care and the nature of the relationship needs to be clarified to protect P and the 'good Samaritan' who comes to P's aid in good faith. This will need careful examination and the practical implications explored. People will be empowered to make decisions until such time they are challenged and so safeguards and parameters do need to be set which are clearly identifiable. As a minimum, it is suggested that any decision which is likely to have a substantial impact on P is not one which should be made under a general authority eg change of carer.

3.3  The Bill should emphasise that if the general authority were to be used to consent eg, to medical treatment this may not be lawful. Prescribing is a medical decision subject to professional guidance. The general authority may, however, be used to administer the prescription and to place a requirement on the service provider to consult the carer. It is of course open to an individual to nominate a donee to consent on their behalf or make an advance statement should they wish to do so.

3.4  There also needs to be an informal or alternative disputes resolution mechanism. This would be of assistance to carers where a dispute does not satisfy the tests for eligibility for legal aid, or where an informal consideration is proportionate to the problem in question. An example of ADR could be the extension of the patient liaison advocacy services in relation to medical treatment disputes, this would prevent the Court of Protection being called upon for all matters where there is misunderstanding and/or a low risk outcome. Dispute resolution other than Court of Protection would also assist attorneys and service providers.

3.5  No other jurisdiction (as far as is known) has a General Authority as part of their substituted decision-making law. The Law Society would therefore suggest proceeding with caution so as to find the correct balance between efficacy and safeguards. The scope of a general authority in particular needs to be clearly defined on the face of the Bill. This is because it would not be realistic to expect informal carers to have regard to a code of practice.

3.6  The Law Society is of the view in any event that Clause 62 (a) pledge credit etc be removed and the test for reasonableness be an objective one. (See 'reasonable belief').

4.  Problems with LPAs

4.1  It is not clear why more than one attorney has to be appointed only jointly or jointly and severally. Some donors would appreciate the option of appointing three or more attorneys on the basis that any two could act. They may wish to allow attorneys to act severally in relation to financial matters, but jointly in relation to health matters, or vice versa. Our understanding is that different donees can be appointed to take different decisions. This is a desirable feature so long as disputes are easily resolved. Otherwise the position of third parties such as care homes may be uncertain if P has been placed in care but the financial donee does not agree to the placement. This should not necessarily prevent an attorney acting severally. The Law Society would also want clarification on whether parts of an LPA can be severed or subject to conditions by order of the court.

4.2  The Law Society recommend that any partial revocation (Schedule 1, Part 4 , Clause 16) be effected by an endorsement on the instrument rather than an attachment which may become dislodged.

4.3  On registration, the Law Society take the view that extreme caution should be taken where there are no named persons for notification. The court must ensure that the document has been registered with the donor's free-will. An application for registration without persons named for notification should be witnessed in the presence of the person who certifies capacity and two other persons.

5.  Alternative Dispute Resolution and the Code of Practice

5.1  These topics are pervasive and are raised throughout the submissions.

6.  "Reasonable belief"

6.1  Throughout the Bill reference is made to a decision maker's reasonable belief, for example Clause 6(1) a. The Law Society takes the view that this is too subjective and that the phrase should be altered throughout to read "the person reasonably believes and it is objectively reasonable to hold this view". This should help avoid arbitrary decisions being made.

7.  Assessment of Capacity

7.1  The BMA and the Law Society have already published guidance on the functional assessment of capacity. Care needs to be taken to ensure the certification procedure is not too bureaucratic. The assessment of capacity is not necessarily a question exclusively for Registered Medical Practitioners but one which can at times be assessed by other suitably qualified professionals such as psychologists or specialist nurses. The practical aspects of formal assessment could be contained in code of practice but the detail such as who can assess should be stated in the Bill with a 'sweeping up' clause so that the Secretary of State can appoint assessors (to allow for emerging expertise).

8.  High Court Powers and the new Court of Protection

8.1  Modern legislation should be accessible and therefore any powers which are granted to the Court of Protection (Clause 37(1)) need to be specified. If not in the main body of the legislation then by reference to a schedule.

8.2  Further, for this legislation to be effective there needs to be practical consideration given to the resources available to the new Court of Protection. This includes the recruitment and training of suitably qualified judges.

9.  Legal Advice and Assistance

9.1  The implications to the Legal Aid budget are not discussed in the Draft Bill or explanatory notes. In Scotland anyone who brings an application on behalf of an incapacitated person will have a right to advice and assistance or to representation costs as if they are the subject themselves. If the person without capacity is eligible then so too will their representative, irrespective of their personal means. This is how legal aid applied in UK to litigation friends and we would suggest this would be a suitable model to adopt. It is worth noting that Scottish practitioners lament the loss of ABWOR in these type of proceedings and are currently experiencing delays on applications for legal aid.

9.2  The stated objectives of this Bill will be greatly undermined by the lack of availability of public funding. The need for advance planning for the budget implications is brought to Parliament's attention so that proper planning can take place and an appropriate enhancement to the legal aid budget identified.

10.  Human Rights compatibility

10.1  Compatibility has been certified but we are of the view that there is a question as to whether best interests decisions especially those made under a general authority could conflict with human rights legislation. Obviously an advance refusal of life sustaining treatment may put the state in breach of Article 2. Also, the wide application of the general authority may, in the Society's view give rise to claims under Article 8. Any application to dispense with notification on registration may prevent objections being validly raised which could offend Article 6 as could the lack of appeal procedures on the appointment of a deputy. Similarly Clause 20 should have prefix of "unless the court orders otherwise" before the deputies' powers are restricted.

11.  Interface with Mental Health Legislation

11.1  The general authority has a few restrictions (Clause 7) eg not to restrict P's liberty of movements. However a donee or a deputy can do "any act reasonably believed to be necessary to prevent a serious deterioration in P's condition". This may involve loss of liberty in the case of a 'wandering' person. It would be preferable for this clause to have greater safeguards in the primary legislation. For example a requirement that where the detention of a person is necessary for their safety that this is part of an overall care plan agreed by health and social work professionals. This is so that arbitrary or convenient "locking away" is avoided.

11.2  As the Bill currently stands there is scope for applying invasive treatment to a compliant person (therefore in the case of mental health, there is no need for compulsion under Mental Health Act). For example, ECT (electro-convulsive therapy) which may be deemed in the patient's best interest by some but not others, could be applied which could have serious side effects. An example of a better safeguard would be the requirement of a second opinion in circumstances other than for non-invasive prescribing or treatment. Although invasive treatment is available in a non-clinical setting, good practice means this should take place in a hospital where a second opinion should not be difficult to obtain.

11.3  Another area of overlap with Mental Health legislation is the nearest relative/nominated person. Under the Mental Health Act they have powers to apply for discharge of a patient and to object to treatment on behalf of the patient. The Lasting Power of Attorney could nominate an individual to act as nearest relative in the event of compulsory treatment or detention. This would provide consistency for the person with impaired capacity. The Mental Health Bill or the Act needs to be amended to recognise the LPA where a person has been nominated. Where a patient is compelled but has capacity to make decisions for himself, those views should be respected. That, however, is beyond the scope of this Bill.

12.  Better mutual recognition of international jurisdictions

12.1  The notes state that the Bill recognises the Hague Convention of the International Protection of Adults 2000. However the mutual recognition of other jurisdictions does not appear on the face of the Bill (unlike the Scottish Act). This needs to be included in this legislation. Scottish lawyers already have difficulty enforcing their powers in England and Wales. This is a missed opportunity to embrace other jurisdictions.

13.  Fees

13.1  Clause 44(3) specifies those who must be consulted on changes to court fees. The Law Society suggest this group should be wider as the issue relates to access to justice on which there are strong views, especially from user groups.

14.  Miscellaneous and Supplementary

14.1  Clause 30(6) specifies those to have regard to a code practice. The Law Society is of the view this should also apply to donees of a lasting power of attorney and a court appointed deputy. It is not reasonable to expect persons under a general authority to have knowledge of any code of practice unless they are directly or indirectly remunerated. Therefore any instrument granting the power or contract for services should have an express term or should be endorsed so that "the deputy or donee must have regard to the code of practice". This should ensure that the decision-maker has notice of their duty to have regard to a code of practice in the exercise of their powers.

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