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posted 1 Apr 1998 in Volume 3 Issue 3
Who
Decides? - A Critique Of The Consultation Paper Issued By The Government In
December
In
this article David Chatterton reviews the recent Government consultation paper:
Who Decides? Making Decisions on Behalf of Mentally Incapacitated Adults.
The
author is Senior Lecturer in Law at the University of Central England
The Consultation
Document of December 1997 (Com 3803 - Price £12.70 HMSO Bookshops) was issued in
order to obtain the views of the Public in general, and in particular those most
concerned with the topic.
The Lord Chancellor's Department had requested that those with valid
views/opinions should submit their responses not later than March 31st
1998.
The paper
states:
"The
Government believes there is a clear need for reform of the law in order to
improve and clarify the decision-making process for those who are unable to make
decisions for themselves, or those who cannot communicate their decisions. These
are some of the most vulnerable people in our society." (para 1.1).
The Paper is based on
the recommendations of the Law Commission, and follows them closely. In
particular, it takes account of the views voiced in the Commission's Report
"Mental Incapacity" (Law Commission 231 published in February 1995).
The areas considered in
the paper and by the Law Commission include proposals on:
(a) the definition of incapacity
b) a framework
for cover to remove the undoubted present uncertainties
(c) more extensive powers for the
Court of Protection, so that decisions can be made regarding a person's health
care, and personal welfare, in addition to his/her property and finances within
the same jurisdiction.
(d) powers of attorney for the care of incapacitated persons (para
1.4).
The Paper
stresses the Government's intention to ensure that there are sufficient
safeguards in place for the
protection not only of patients but
those who are charged with their care (para 1.5).
The remit of the Consultation Document
also includes analytical discussion on the subjects of advanced statements about
health care (often known as "Living Wills") and non-therapeutic research (para
1.6).
However, it
is emphasised that there is to be no move towards "the legalisation of
euthanasia" (para 1.8).
In all, the Government's Paper consists of 9 chapters and 4 annexes. It
covers 114 pages and represents a sizeable contribution to the discussions in
this subject area.
Background (Chapter 2)
The second Chapter refers to the
present jurisdiction of the Court of Protection, the Public Trust Office, the
Official Solicitor and considers the subject of what is known as "Social
Security Appointees".
Key Principles (Chapter 3)
I: Capacity
The Law Commission
Report recommended that the expression "mental disability" be used (except in
those cases of inability to communicate) and these words should be interpreted
as:
"any
disability or disorder of the mind or brain, whether permanent or temporary,
which results in an impairment or disturbance of mental functions. (Law
Commission 231 para 3.12).
However, it was considered the test of
capacity should also apply to the communication of a decision as well as the
ability to make the initial decision.
A person should hence be deemed to be
without capacity if at the material time (i.e. the time the decision was taken),
he or she is:
"Unable by reason of mental disability to make a decision on the matter
in question, or unable to communicate a decision on the matter because he or she
is unconscious, or for any other reason." (Law Commission 231 para 3.14).
Best Interests
and General Authority to Act Reasonably
The Government endorsed the clearly
accepted principle that decisions made on behalf of an incapacitated person
should always be in their best interests. (para 3.22).
The Law Commission had recommended
that certain factors should be taken into account in determining what those best
interests may be e.g.
(a) The ascertainable past and present wishes and feelings of the person
concerned, and the factors the person would consider if able to do so.
(b) The need to permit
and encourage the person to participate or improve his or her ability to
participate as fully as possible in anything done for and any decision affecting
him or her.
(c)
The views of other people whom it is appropriate and practical to consult about
the person's wishes and feelings and what would be in his or her best interests,
and
(d) Whether
the purpose for which any action or decision is required can be as effectively
achieved in a manner less restrictive of the person's freedom of choice.
The Paper endorsed the
need for criteria of some kind but seeks views as to whether the proposed
criteria would be workable and useful (para 3.24).
This is about informal decision-making
i.e. the fact that carers, of necessity, must take decisions informally about
and on behalf of those in their care reasonably frequently, and at the time of
doing so, with very little authority e.g. (inter-alia) paying bills, purchasing
necessities, giving medication (para 3.26).
This informal substitute authority
will probably develop and may, over a period of time, become extensive. In all
likelihood, the person taking this authority upon himself or herself will extend
his or her powers on behalf of the incapacitated person without really
appreciating he or she is doing so.
In acting in this way, the carer is
opening himself or herself to a degree of risk, in that his or her actions have
no formal legal basis.
The Law Commission accepted that this informal decision making should
remain, and that there should be no undue recourse to the Courts.
The Government also
refers to the problems surrounding capacity to contract on behalf of persons
lacking capacity (para 3.29) and certain schemes e.g. a release of payments
scheme (paras 3.32-3.35).
The Law Commission recommended that a person acting under the general
authority should not be able to make a decision on behalf of the incapacitated
person in relation to:
(a) Consent to marriage
(b) Consent to sexual relations
(c) Consent to divorce
based on 2 years separation
(d) Agreement to adoption
(e) Voting in elections
for any public office
(f) Discharging parental responsibilities (except in relation to a
child's property) (See para 3.40)
The Government accepted this
recommendation (para 3.41) and seeks views vis-à-vis these points.
Advance
Statements About Health Care (Chapter 4)
The concept of "Living Wills" or
advance directives has been much in the news recently. The Law Commission, which
referred to these as "advance statements" attempted to clarify the legal status
of health care decisions intended to have effect on behalf of a patient without
capacity.
Advance
Statements are generally anticipatory decisions made in writing. However, when
an advance statement is limited to specifying treatment which the patient would
not consider acceptable, it is frequently referred to as an advance refusal
(para 4.1).
This
area of law has caused general public concern, and is a matter lending itself to
"deep-rooted personal, moral, religious and ethical views" (para 4.2).
The consultative
document confirms that advance statements/living wills of certain forms already
have full legal status at common law.
The House of Lords has accepted that
an advance refusal which is "clearly established" and "applicable in the
circumstances" shall be treated as effective as if the decision were that of a
fully capable adult. (See Re T (Adult: Refusal of Medical Treatment) [1992] WLR
782, Airedale N.H.S. v Bland [1993] A.C.789 and Re C (Adult Refusal of
Treatment) [1994] 1WLR 290 (para 4.4).
The Law Commission, in fact, stated in
their Report on Mental Incapacity (Law Commission 231 para 5.14) that "An
advance refusal made with capacity simply survives any supervening incapacity"
(referred to in para 44 of the Consultation Document).
The Government seeks views, therefore,
on two relevant issues, first; should it legislate in the area of advance
statements? And second; what should be the objective of legislation on advance
statements? (Questions 19 and 20 in Annex A).
The Law Commission distinguished
between advance "expressions of views and preferences" and "advance decisions".
The Commission recommended that decisions relating to medical treatment (they
concentrated on "decisions" as referred to above) on behalf of incapacitated
persons should be made in the person's "best interests". Best interests was a
term to include "past and present wishes and feelings, and the factors he or she
would consider" thereby ensuring the wishes of the patient were fully complied
with. (para 4.16)
Independent Supervision Of Medical And Research Procedures
(Chapter 5)
This issue is another area of great sensitivity. It refers, in
particular, to sterilisation, donation of tissue or bone marrow and
abortion.
The Law
Commission thought those forms of serious medical procedure should be subject to
additional safeguards or supervision so that the best interests of persons
without capacity could be fully protected. Normally, the best interests of the
patient would be the overriding consideration, but not always (para 5.1 of
Government Paper).
The Law Commission had come to the conclusion that decisions on some
procedures should either be considered by the Courts, be subjected to an
independent, second medical opinion or either or in the case of certain types of
research subject, to another form of supervisory mechanism or safeguard
(para.5.2).
However, it was thought that where a valid advance statement or a power
of attorney covered the specific issue or there was a court appointed manager,
such special procedures might be waived (para 5.3).
It was unanimously considered that
medical decisions should always require prior judicial approval, although the
courts might achieve this by making a one-off decision or appoint a manager to
take the relevant decision.
The court was not required to involve
itself if an attorney had been appointed who had specific power to determine the
relevant point but general authority to act reasonably. Consent should not of
itself be sufficient to authorise treatments which required the authorisation of
the court or the consent of an attorney/manager (para 5.6).
The Government has doubts as to
whether an attorney should be able to consent to procedures or treatments
otherwise requiring court approval.
Sterilisation was separately
considered by the Law Commission under three headings viz:
(a) Where required to treat a disease
of the reproductive organs,
(b) To relieve a subsisting
detrimental effect of menstruation and
(c) To deal with contraception (para
5.8)
The Law
Commission had indicated that any such treatment should not be permissible
without the sanction of the court - at common law any proposal for donation of
bone marrow from an incapacitated adult must be brought to court, irrespective
of whether such procedure would be lawful in the individual circumstances of the
case. (See Re Y [1997] 2 WLR 556.)
The Government accepts the principle
and common law position that the sanction of the court is essential.
The Government agreed
with the Law Commission's suggestion that the Secretary of State for Health
should be empowered to prescribe further treatments which necessitate the prior
sanction of the judiciary, thus avoiding the need for amendments to primary
legislation to meet changes or improvements in medical science (paras 5.14 -
5.15). The Consultation paper paras (5.16 - 5.22) proposes that in the case of
sterilisation or abortion it would require a second medical opinion. Such
procedure should also apply to treatments for those suffering from a disorder
within S.58(1) of the Mental Health Act 1983, where the patient
lacks capacity to consent to the treatment.
As before, it was proposed by the Law
Commission that the Secretary of State for Health should be able to add to the
list of procedures which would necessitate a second doctor's opinion (para
5.22).
The
remainder of Chapter 5 is concerned with circumstances where a departure from
the best interests criteria might be justified.
It includes coverage (inter alia) of
the topics of the withdrawal of artificial nutrition and hydration and
procedures for the benefit of others.
It also recommends the establishment
of a statutory Mental Incapacity Research Committee which would be empowered to
authorise particular research projects (paras 5.23 - 5.40) and the question is
raised for response.
Continuing Powers Of Attorney (Chapter 6)
The foremost objective
of the Law Commission in this area was "to encourage people to take for
themselves those decisions which they are able to take" (Law Commission 231 para
7.1 referred to in Consultation Paper at para 6.1).
This approach was fully supported by
the Government.
The objective of this part of the document was to consider whether and
in what way the present enduring power of attorney, which presently only covers
the donor's property and finances could be extended to cover his personal
welfare and health care.
The Law Commission proposed the introduction of a new form of power of
attorney - the "so-called continuing power of attorney". This would enable
persons with capacity to give instructions vis-à-vis decisions they would wish
to make and the persons they would wish to make those decisions for them at a
future time when they might have lost capacity to make those decisions for
themselves (para 6.4).
The Commission thought that judicial intervention should only be as a
last resort, but expressed concern as to how best to protect persons who lacked
capacity.
The
proposed continuing power of attorney was to satisfy the professed objective of
clothing the attorney with authority, not only over property and financial
matters, but also in relation to health and personal care matters (para
6.6).
The Green
Paper seeks views on the scope and nature of the scheme and on the form of
safeguards appropriate to protect the donor of the proposed new form of power of
attorney.
The
rest of this chapter concerns itself with the form of the C.P.A acting in the
donor's best interest, possible restrictions on the proposed C.P.A. and the
essential safeguards necessary to prevent its abuse.
The donor of a C.P.A. must be at least
18 although it is queried whether a person over 16 should be permitted to
execute a C.P.A. (paras 6.28 - 6.29)
There is also useful and illustrative
discussion on creating, amending, terminating and registering a C.P.A. (paras
6.31 - 6.43).
The
Law Commission recommended that so as to ensure the donor and donee of the
C.P.A. understand the implications of the document, the prescribed form of
C.P.A. should include explanatory material something similar to that indicated
in the present form of enduring power of attorney (para 6.33).
The Law Commission had
recommended that donor's capacity should be subject to a Certificate from a
doctor and a Solicitor, but the Government did not, in principle, accept this
and seeks views on this matter (para 6.39 - 6.40).
There was, in addition and as might be
expected, discussion as to the best form of protection against abuse by the
attorney. It was accepted, for example, that a C.P.A. would not be valid unless
in a prescribed form. (para 6.44)
Decision Making By The Court
(Chapter 7)
This chapter is concerned with the issue of whether there should be one
integrated judicial framework for the making of decisions relating to financial
matters, personal welfare and health care (para 7.1).
At present, the Court of Protection
and the Public Trustee deal only with financial matters and property.
The Government expressed
support for a unified judicial framework, but seeks views on how best to effect
this (para 7.3).
The Law Commission had identified three roles for the court:
(a) to make
declarations
(b)
orders, or
(c)
orders appointing a manager (para 7.4)
It was, in addition, suggested the two
major principles to be applied would be first, the nature and extent of decision
making capacity of the person concerned; and second, the principle that, in
general, a decision taken must be in the person's best interests (para
7.5).
There is
also discussion at some length as to what the powers of the court should be in
relation to personal welfare (paras 7.17 - 7.20), health care (paras 7.25 -
7.26), non-therapeutic research (paras 7.29 - 7.30), admission to hospital
(paras 7.31 - 7.33), and property and affairs (paras 7.34 -7.42).
Recommendations and
suggestions also appear in this chapter in relation to appointment of managers
by the court (paras 7.42 - 7.50).
There is also reference to the
management of residents' funds by care establishments (para 7.61).
Public
Protection For People At Risk (Chapter 8)
The overall objective of the Law
Commission Reports, which largely led to this Green Paper, was
"to make
provision to ensure persons without capacity, and other vulnerable adults,
constituting a broader group of people who may not be able to protect themselves
from harm, were protected from abuse and neglect"(para 8.1).
The Law Commission had
recommended that the social services should have a new duty to investigate cases
of possible neglect or abuse, and be empowered to deal with the protection of
people they believe to be at risk, including powers to deal with those who
sought to obstruct them when they were attempting to carry out their
duties.
Briefly,
the Chapter goes on to outline the powers of local authorities or health
authorities under the Registered Homes Act 1984 in relation to
investigation and enforcement of the inspection rules and regulations for
residential care homes and nursing homes.
The Chapter considers the need for
emergency intervention (paras 8.20 - 8.24) and various other relevant matters
e.g.: assessment orders (paras 8.25 - 8.26), medical assessment (para 8.27), and
removal from home (paras 8.28 - 8.29).
The Judicial Forum (Chapter
9)
For
the purpose of facilitating the various judicial decisions considered within
other sections of the Report, the Law Commission recommended a new role for the
Court of Protection and the Public Trust Office.
The Government endorsed in principle,
the majority of the reforms proposed (para 9.2).
The Law Commission had identified
three possible options as to the kind of judicial forum which would have
jurisdiction, namely:
(a) A jurisdiction integrating the Court of Protection and exercised by
the ordinary courts,
(b) A jurisdiction exercised by administrative tribunals,
(c) A hybrid system with
medical issues decided by tribunals, and courts deciding all other issues (para
9.3).
There
follows informed discussion of the advantages and disadvantages of those
proposals, and also on the question of independent reports (paras 9.25-9.26) and
privacy of proceedings (paras 9.27 - 9.31).
Conclusion
The Green Paper is a
well thought out discussion paper, which raises most of the important issues for
public debate.
Apart from the text itself, there are three annexes - Annex A gives a
summary of the 107 questions raised in the paper. Annex B summarises the Law
Commission's recommendations (144 in all). Annex C is a glossary of the terms
and expressions used in the paper.
The document's significance lies in
that it gathers together and encompasses, in one document for discussion, all
the relevant issues relating to incapacity and therefore brings to the fore the
debate in these crucial areas.
Let us hope it leads to some practical
and worthwhile new law.
David Chatterton
