Feature

posted 13 Dec 2003 in Volume 9 Issue 1

The draft Mental Incapacity Bill

The draft Mental Incapacity Bill has received a mixed reception, from those who have campaigned for years for legislation to better protect people and enhance their rights, to those who fear that such a bill will allow euthanasia by neglect. Martin Terrell, a partner at Rix & Kay, assesses the publication of the draft bill, the controversies and potential pitfalls, and its implications for decision making in personal welfare and healthcare matters.

On 27 June of this year, the Department for Constitutional Affairs, published the long-awaited draft Mental Incapacity Bill. The Law Commission’s Report, Mental Incapacity,1 on which the bill is based, was published more than eight years ago, in March 1995. The preparation for that report began more than 14 years ago, in 1989. After such a long gestation, practitioners might have been entitled to a first-rate piece of draft legislation. It might even have taken account of the criticisms of Mental Incapacity, developments in other countries since then or changes in health and social-care practice.2

The draft bill has instead introduced a novel way of law making. Conventionally, a government consults, prepares and then proposes its legislation. The draft bill applies a new sequence. The draft bill is published as a piece of proposed legislation. Publication is followed by a consultation exercise conducted by a joint scrutiny committee comprised of eight members from each of the Houses of Parliament. Only at that stage is consideration given to how the draft bill might work in practice. There are very real questions outstanding about what resources the bill might require, what additional demands would be made of the court service, social services departments and the medical profession, which are only being addressed at this late stage.

That these factors were only addressed after publication of the draft bill was clear from a circular sent by the DCA on 8 August to a number of “stakeholders”. This made assumptions about the broad benefits of the bill, but stated that: “We are lacking information as to how these broad benefits will translate into practical benefits, which will improve the lives of certain groups of people on a day-to-day basis [and are] therefore approaching a number of our stakeholders to ask if they can help provide a clearer idea of these practical benefits …”

What the benefit of this consultation might be is open to debate as replies on these crucial issues were to be submitted by 18 August. Those making submissions to the parliamentary scrutiny committee had a little longer to make their replies, the closing date being 1 September. The scrutiny committee also heard oral evidence on several days in September and October and has been charged with reporting to parliament by the end of November.

There is no doubt that this has been a very rapid process. This in turn raises some interesting questions, which hang on the following paradox. If the draft bill is brilliant in its conception, why does it need a period of consultation? But if it is of fundamental public importance, then why is the consultation period so short? The more one ponders it, the more perplexing it becomes.

To the extent that we can deduce an answer, the draft bill combines wishful thinking and poor preparation. As with many government initiatives, a noble, well-intentioned end justifies the means. The “end” in this case is a modern piece of incapacity legislation that empowers people and enhances their rights. And that “end” is best achieved by presenting a draft bill as a fait accompli. Whether this is in fact the end depends largely on the sixteen members of the scrutiny committee and whether any recommendations they do make will be acted on.

In the meantime, the draft bill remains an imperfect piece of proposed legislation. Notwithstanding this, its publication received an immediate and uncritical response from bodies such as the Law Society, whose president said: “The Law Society has campaigned for more than ten years for this necessary and worthwhile legislation. We are delighted that the government has put it on the parliamentary agenda, and we urge them to find parliamentary time for it as soon as possible.’

The Making Decisions Alliance, which combines the efforts of the major voluntary organisations involved in this area was more emphatic, claiming that publication of the bill “would be the beginning of the end of 14 years of growing frustration, and good news for the millions of people who are likely to be affected.”

Despite these acclamations, others took a different view. One pro-life campaigner wrote that the bill proposed a system of “living wills and unqualified, unaccountable attorneys to force doctors to kill by withdrawing life-sustaining treatment and care… the bill will be the first comprehensive law in the world allowing euthanasia by neglect”.3

And therein lies a fundamental problem with the draft bill. The original Law Commission proposals were dropped by the then Conservative government largely because of claims that the bill would lead to euthanasia. That claim was rejected by proponents of the draft legislation. It is not the purpose of this article to analyse that issue, but simply to point out that this draft bill contains the same controversy within it. Whatever the rights and wrongs, for a bill of this nature to be successful, it needs to be uncontroversial. It needs to be the fruit of a considered and lengthy consultation that takes account of all points of view. It needs to be planned carefully and backed with a clear view of how it will work in practice. This article, therefore, aims to show both where the draft bill is likely to be controversial and where it contains other potential pitfalls.

There is at least no criticism of the draft bill’s ambition to create a single statutory framework for decision making on behalf of people who cannot make decisions. Not only does it replace the Enduring Powers of Attorney Act 1985 and Part VII of the Mental Health Act 1983, but provides for a clear definition of incapacity, introduces decision making into areas of personal welfare and healthcare matters, as well as creating a “general authority to act” and a framework for making advance decisions to refuse treatment. And all this is achieved in 54 sections.

The draft bill begins by setting out three fundamental principles. First, there is a clear definition of incapacity: “A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of or a disturbance in the functioning of the mind or brain. It does not matter whether the impairment or disturbance is permanent or temporary” (clause 1).

This definition reflects the common law principle that capacity is “function specific”. A person’s ability to perform a particular act depends on the capacity required for that act.4 Thus the capacity to make a will may be very different to (and the threshold higher than) the capacity to make a small gift or consent to a marriage or an operation.

The definition is clear and wide ranging, and replaces the Mental Health Act 1983 definition of “mental disorder”.5 But can a simple definition cover such a complex area? It may be too wide in that it appears to cover a temporary disturbance caused by drugs or alcohol or a stroke victim who cannot communicate but would otherwise have capacity (clause 4). It may also be too narrow. By making capacity relative to each and every transaction, and setting out a presumption of capacity (clause 2), the definition does not cater for a person being unable to manage his “property and affairs” in the context of a series of transactions over a period of time.

The second fundamental principle that underpins the draft bill is that a person must be assumed to have capacity unless “it is established that he lacks capacity” (clause 2). This mirrors the common law position, but by stating the presumption so clearly, there is a danger of applying the presumption too rigidly. Recent cases show how that the courts need the flexibility to reverse a presumption where there has been undue influence or unusual circumstances.6

The third fundamental principle is perhaps the most controversial. Clause 3 provides that where any act or decision is made for a person who lacks capacity, then that decision must be made in that person’s “best interests”. Thus, in deciding what is in a person’s best interests, regard must be had to:

“Whether he is likely to have capacity in relation to the matter in question in future;
The need to permit and encourage him to participate, or to improve his ability to participate in the decision-making process;
So far as ascertainable, his past and present wishes and feelings, and the factors he would consider if he were able to do so;
If it is practicable and appropriate to consult them, the views of:

a) Any person named by him as someone to be consulted on the matter in question or on matters of that kind;

b) Any person engaged in caring for him or interested in his welfare;

c) Any donee of a lasting power of attorney granted by him;

d) Any deputy appointed by him for the court as to his past and present wishes and feelings and the factors he would consider if he were able to do so;
Whether the purpose for which any act or decision is needed can be as effectively achieved in a way less restrictive on his freedom of action.’

This all seems sensible and beyond reproach. Of course, decisions should be made in a person’s best interests. But where a person cannot make a decision, someone else must make a decision as to that person’s best interests and that decision is bound to be subjective. How in practice does a doctor, carer or solicitor ascertain a person’s “past and present wishes and feelings”? And if those wishes and feelings are clear, to what extent must we bound by them? An elderly client may be determined to live in his own home and to have made that wish clear time and time again. The home is unfit for habitation and the client has had a number of falls and is suffering from neglect. The client is taken to hospital but was heard to have said that she never wanted to end up in hospital and would rather be dead. The client was very reluctant to spend any money on herself and had refused to pay for any personal help. There must come a point where a person’s dignity is best served by applying an objective test rather than letting a person become a prisoner of his own past.

The draft bill reflects a particular approach to these very difficult dilemmas. It may well be correct, but it is not the only approach and it changes the existing approach. The law at present allows the Court of Protection and a receiver to apply a very simple objective test, “in doing all such things as appear necessary or expedient for the maintenance or other benefit of the patient”.7 An attorney acting under an Enduring Power of Attorney has a fiduciary duty towards the donor and his estate. A doctor has a professional and ethical duty of care to his patient to sustain life, restore health and prevent suffering.8 Obviously doctors, carers, receivers and attorneys must take account of a person’s wishes and the wishes of those concerned with the person’s welfare.9 But what is their primary ethical and legal duty?

It is interesting to note by comparison, that the Scottish legislation, which was based on a very careful consideration of the Law Commission’s proposals, rejected this approach. Section 1 of the Adults with Incapacity (Scotland) Act 2000 lays down simply and clearly that no intervention is to be carried out unless it is for the “benefit” of the incapable adult and that the benefit cannot be achieved without intervention. The Act goes on to list similar factors that need to be taken into account but the overriding duty to “benefit” the incapable person is very clearly stated.

The draft bill by comparison reflects one well intentioned approach to enhance the rights and autonomy of the individual. Another approach might be overly paternalistic, and require people to be treated arbitrarily and without regard to their individual characteristics and feelings. There is a wide spectrum between the requirements of autonomy on the one side and protection on the other side and the answer for society and parliament is to find a solution that fits squarely between the two. What is regrettable, is that the draft bill gives priority to the concept of autonomy without providing a protective counterweight. The problem with autonomy, is that an incapable person, by definition, lacks autonomy. His autonomy is simply replaced with the autonomy of another person. That person may have very different beliefs, values and interests.10 This is ironic, because the last few years have revealed a much greater awareness of financial and other abuse of elderly and vulnerable adults. The extent of this was highlighted by Denzil Lush’s much quoted and dramatic comment about enduring powers of attorney, that:11 “...financial abuse probably occurs in about 10–15 per cent of cases. Expressed as a percentage, this may seem to be a relatively minor problem, and maybe even an acceptable price to pay for the 85–90 per cent of cases where attorneys act lawfully.”

There is no doubt that the present system, which is concerned with property and affairs, is insufficiently protective against the risks of financial abuse. As a society we accept all sorts of restrictions to protect us against very minimal risks, from wearing seat belts to insuring our homes in the event of a fire. The draft bill needs to be considered in the light of one simple question: does it provide more or less protection than the system we currently have in place?

The remaining provisions of the bill can be examined briefly in this light.

Acting reasonably

Any decision made or act carried out in a person’s best interests is deemed to be in the person’s best interests if it is reasonably believed to be in the person’s best interests (clause 4(4)). There is, therefore, no objective burden on a person such as an attorney to act reasonably or in accordance with a particular standard or duty of care.

The general authority

Clause 6 sets out an informal “general authority”, which provides authority for people to act on behalf of an incapable person. Thus, carers can provide basic care or a care home can fund a person’s care and expect to be reimbursed by his estate.

A person acting under a general authority must act in the incapable person’s best interests and cannot act contrary to an advance statement or the decision of an attorney or manager.

Lasting powers of attorney

Clauses 8 to 13 create a new lasting power of attorney (LPA). No new Enduring Powers of Attorney can be made and the Enduring Powers of Attorney Act 1985 will be repealed, although there are transitional provisions for existing enduring powers of attorney.

An LPA will be similar in scope to an EPA but may extend to the personal welfare of the donor. The LPA may, if expressly provided for, extend to the refusing of consent to the “carrying out or continuation of life-sustaining treatment”. Thus, an attorney, armed with a suitably worded LPA, will literally have power of life and death over the donor.

The LPA must be in a prescribed form and apart from its extension to welfare issues, will not be dissimilar to an EPA. The draft bill does, however, contain some important differences:

The instrument may provide for the appointment of replacement attorneys to act on the occurrence of specified events such as the death or bankruptcy of the attorney (clause 9(8));12
The dissolution of the donor’s marriage has the effect of terminating the spouse’s appointment as an attorney (clause 12(5);
One very important new safeguard is that the LPA carries a certificate by a “person of a prescribed description” (such as a doctor or solicitor) that the donor had capacity to make the LPA;
The instrument must be registered if it is to be used (clause 8(2) and Schedule 1). This will avoid the problems caused by unregistered enduring powers of attorney being used when they should registered.13 However, there is no requirement that the donor must actually be incapable or becoming incapable before the instrument to be registered. The only restriction is that the attorney cannot give or refuse consent to treatment unless the donor lacks capacity to give or refuse that consent;
The LPA is registered with the public guardian who will notify the donor and the persons to be notified. Instead of a prescribed class of notifiable relatives, the LPA may provide for specified individuals to be notified. The aim is to make registration simpler. But problems can arise if there are no suitable persons to notify or the attorney has used pressure to procure the LPA and suggested the choice of notifiable persons;
The public guardian has responsibility for registration of LPAs and the Court of Protection has overall jurisdiction. An LPA may be revoked on specified grounds, including where the court is satisfied that the donee has behaved, is behaving or intends to behave in a way that would contravene his authority or would not be in the donor’s best interests.14

A new Court of Protection

The existing Court of Protection will be abolished and replaced by a new Court of Protection. The new court will have power to make declarations as to whether a person has or lacks capacity or whether a particular act, omission or course of conduct is lawful (clause 15). This will, therefore, replace the existing role of the High Court to make declarations as to the lawfulness or otherwise of a proposed course of action.15 In theory, any question of capacity can be referred to the court. If a decision is required as to whether a person can make a will or contract a marriage, the court can be asked to make a declaration.

Apart from the power to make declarations and decisions over a person’s property and affairs (which are broadly similar to the powers contained in s.96 of the Mental Health Act 1983), the court will be able to make personal welfare decisions. The court can make decisions in its own right, or appoint a deputy to make decisions (clauses 16 or 19). Clause 16 contains some restrictions on the powers of deputies who will not be able to make wills or settlements. A deputy will, unless authorised to make welfare decisions, have a similar role to a receiver. The court will direct the security to be given and direct when and how often reports should be submitted to the public guardian.

The new Court of Protection will be a superior court of record, rather than a humble office of the supreme court. It will comprise nominated circuit judges, district judges and High Court judges who will sit as judges of the Court of Protection. There will be a president and vice president who will be High Court judges (clause 35). A circuit judge or district judge will be appointed senior judge, replacing the present role and office of the master.

The aim of the bill is to provide easier access to justice across the country, rather than through a single office in Archway16. Orders can be made through local courts and where the longer term involvement of a receiver is required, refer the details to the public guardian who will deal with mundane matters such as security and the inspection of accounts. In practice, it is impossible to know how much the landscape will change from the one we are familiar with. Archway Tower will continue to exist, but housing the office of the public guardian rather than the Public Guardianship Office. The public guardian will remain similar, as his office will supervise attorneys and managers and deal with the registration of LPAs. The Court of Protection will, one may assume, continue to sit at Archway and deal with the same broad range of cases.

What remains unclear is how a central registry will interact with a regional Court of Protection. At present, the only facilities for hearing Court of Protection matters outside the court in London are before District Judge Gordon Ashton, sitting as a deputy master in Preston. If the case is appropriate and the parties agree, it is referred to the Preston court. Cases requiring the attendance of the official solicitor must be heard in London. In future, it is unclear how ten or twenty regional courts will work consistently and efficiently with one office in London. Further questions abound. Will different courts follow different procedures? Will applications be made to local courts or to London? How will local courts draft orders which require administration by the public guardian in London? Will the expertise of the court be diluted through inconsistencies in different courts? What resources will be available to provide a completely new jurisdiction and what is the anticipated demand? Who will pay for it, especially where there are no assets involved but crucial health and welfare decisions to be made? And what resources will the court have to obtain medical and welfare reports from doctors and social workers?

Advance decisions

The draft bill also contains quite radical proposals to provide a statutory framework for advance decisions to refuse treatment (clauses 23 to 25). At common law, a person may make an advance refusal, which must be considered carefully to ensure that it still represents the wishes of the patient in the light of the patient’s wishes, knowledge and circumstances at the time the decision was made.17 The draft bill goes further than this by giving an advance refusal the clear force of law. It may be expressed in broad terms or non-scientific language. If the specified treatment is proposed to be carried out and the person does not have capacity to consent to that treatment, then no consent can be given. If a doctor treats a patient in such circumstances then he is guilty of a criminal assault.

This is, needless to say, a highly controversial measure and will be of concern to doctors responsible for treating patients. The suicide note is an extreme example but illustrates the dangers of the didactic approach of the draft bill. A suicide note, even if made by someone who was depressed and making a cry for help, cannot be ignored. Do doctors ignore it and risk being prosecuted for assault? Or do they delay treatment while they apply to the Court of Protection for a ruling as to whether a valid advance decision exists? Doctors are also familiar with the patient who takes a very different view when confronting a real or imaginary illness.

Although the court may determine the validity of an advance decision, there is no requirement for an advance decision to be subject to a best-interest test, which would allow the court to intervene in disputed cases. That this whole area of law is problematic is clear from the omission of any equivalent provisions in the Scottish legislation.

These problems go to the heart of the draft bill’s shortcomings. The draft bill does not provide any bottom line as to what is ethically unacceptable. There is no absolute safeguard that says “you may have all these powers to consent and refuse consent but there are certain things that you cannot do”. Neither are there any checks and balances, which are essential where such personal and difficult issues may be at stake, for instance where certain decisions must be or may be referred to a court.18 If a son and daughter passionately disagree about what is in their parent’s best interests and one has an LPA, there is no automatic right for the other to have that decision reviewed. He or she must obtain permission to apply to the court and then apply for the instrument to be revoked on the grounds that the attorney is acting contrary to the parent’s best interests. To compare again with the Scottish legislation, that provides a clear hierarchy of decision-making powers where medical treatment is concerned, requiring consensus between doctor and attorney and allowing both parties and any other interested parties to refer the case to another doctor and then through the courts for a decision to be made.19

There is, as mentioned earlier in the article, a philosophy underpinning the draft bill, which gives priority to the autonomy of the patient at a time when the patient is incapable of exercising that autonomy. There is, therefore, a danger that others will use a draft bill of this nature not necessarily to exploit or abuse the vulnerable, but to give priority to their own interests and convenience.

References:

Law Com 231
For example, the draft bill makes no reference to the role of advocate
Catholic Herald, 1 August 2003
See for instance Re Beaney dec’d [1978] 2 All ER 595
Section 1(2) of the MHA 1983 defines “mental disorder” as meaning “mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind”. Section 1(3) further excludes from the definition personal conduct “by reason only of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol of drugs”
See for instance Royal Bank of Scotland plc v Etridge (no 2) [2001] 3 WLR 1021 and Hammond v Osborn [2002] EWCA Civ 885
Section 95(1)(a) Mental Health Act 1983
F v West Berkshire Health Authority [1989] 2 All ER 545 at 566
For example, doctors should involve those “close to the patient [a spouse/partner, family and friends], and while such persons cannot require particular treatment to be given, they will have personal knowledge of the patient and will be able to provide valuable information about the patient’s wishes and values (Department of Health Consent Form 4)”
This difficulty applies to all sides of the argument. A person may have his life curtailed or prolonged against his wishes because someone else has his own idea of what constitutes “best interests”
Quoted in Cretney & Lush’s Enduring Powers of Attorney (5th edition at para 12.1)
This can be done in an enduring power of attorney but donors are discouraged from doing this within the same instrument
Unregistered enduring powers of attorney are, however, useful as a half way measure between capacity and incapacity. There is also a danger of causing confusion where an LPA has been registered but the donor retains capacity
This would replace s 8(4)(g) of the Enduring Powers of Attorney Act 1985 whereby the court may cancel the registration if it is satisfied that the attorney is unsuitable to be the donor’s attorney
See for instance F v West Berkshire Health Authority [1989] 2 All ER 545
The appointment of District Judge Gordon Ashton as an assistant master sitting at Preston County Court has provided a successful model for this role. Likewise in Scotland, local sheriffs can make orders that would otherwise be reserved to the Court of Protection
Re AK [2001] 2 FCR 34
See for instance the comments of Lord Goff in F v West Berkshire Health Authority [1989] 2 All ER 545 at 269: “In my opinion, that guidance should be sought in order to obtain an independent, objective and authoritative view on the lawfulness of the procedure in the particular circumstances of the relevant case, after a hearing at which it can be ensured that there is independent representation on behalf of the person on whom it is proposed to perform the operation”
Section 50 of the Adults with Incapacity (Scotland) Act 2000

Martin Terrell is a partner at Rix & Kay. He can be contacted at martinterrell@rixandkay.co.uk