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posted 1 Jul 1999 in Volume 4 Issue 5
Local
Authorities: Protecting mentally incapacitated
Guardianship and Declaratory
Relief
The law presumes that all adults have decision-making capacity and
protects their right to self-determination. A competent adult has the right to
consent or refuse medical treatment and to make other personal care decisions
which might or might not be in their best interest. In stark contrast, where a
person lacks this capacity, more often than not, decisions on medical treatment,
personal care, contact with friends or where to live, are taken by a range of
carers - doctors, nurses, relatives, friends or social workers. However, under
English law, there is no statutory or common law power which authorises the
delegation of such decisions to professional or non-professional carers. No
matter how well-intentioned carers (or relatives) may be, they have no legal
authority to substitute their decisions for those of the incompetent adult.
Abolition
of Parens Patriae
Under the prerogative jurisdiction
abolished in 1960, the Crown had the power and the duty to protect the persons
and property of minors and mentally incapacitated adults unable to do so
themselves. The High Court could dispense with the adult's consent or consent on
their behalf. These powers are now limited to the protection and management of
property and financial affairs administered by the Court of Protection.
Successive Mental Health Acts have failed to incorporate these powers so that
where legislation fails to protect their rights and interests, incompetent
adults must now rely on the common law.
Common Law Doctrine of
Necessity
Best Interests Principle
In the landmark case of Re F [1990] 2
AC the court exercised its declaratory relief jurisdiction in relation to the
lawfulness of the proposed sterilisation of a severely mentally handicapped
woman. It was held that the court did not have the power to consent on behalf of
an adult patient who is incapable of deciding whether or not to consent to
treatment.
Their
Lordships therefore considered whether there was some other legal justification
for the proposed operation and held that the 'lawfulness' of the treatment would
depend upon whether it was necessary in the best interests of the patient. The
'best interests' principle is a constituent of the common law doctrine of
necessity which provides a defence to conduct that would otherwise be tortious
or criminal. The doctrine is subject to the limitation that interventionary
action is necessary and that it is such as a reasonable person would in all the
circumstances take, acting in the best interests of the
incompetent adult.
It is also subject to the condition that intervention cannot be
justified if the action is contrary to the known wishes of the person to the
extent that he or she is capable of rationally forming such a wish. Lord Goff
observed that the standard of a reasonable person is similar to that of a wise
and prudent person who in the time available to him, would proceed with wisdom
and prudence before taking action in relation to another person's physical
integrity without his consent.
Their Lordships affirmed that the
principle could apply to people responsible for the care of a mentally
incompetent adult and Lord Goff, obiter, extended the concept of medical
treatment and care to "humdrum" care and the actions of relatives, friends, or
neighbours who participated in caring for the person. Although on a purely
practical level, most decisions about personal matters are taken without
formality or authority, Re F provides authority for the proposition that the
actions of carers will not be unlawful if they are justified as being necessary
in the person's best interests. The 'actions' of carers will in many cases
extend to contracting for nursing or residential care and in Re S [1995] 1 FLR
1075 the court affirmed that the legal authority of a mistress to contract for
nursing care for her elderly partner who had suffered a stroke derived from the
principle of necessity.
Conversely, a local authority may only act in accordance with its
express or implied statutory powers and cannot rely on the common law. Under its
statutory social welfare obligations, a local authority is expressly empowered
to assess need and provide or arrange the necessary service provision, but
outside guardianship and s.47 of the National Assistance Act, 1948, it has no
express legal power to make welfare decisions without a person's consent, even
where the incompetent adult completely lacks decision-making capacity or is
unable to communicate their wishes.
However, where no-one else is
available to assume responsibility for the care and welfare of an elderly
person, a local authority would be in breach of its statutory duty and negligent
if it failed to assume responsibility for service provision. It is, therefore,
arguable that where the client completely lacks decision-making capacity, an
implied power exists to make interventionary welfare service provision provided
the person is compliant, there is no other suitable actual or prospective carer
and the proposal is necessary in their best interests..
Mental Health Act Guardianship
and Declaratory Relief
These procedures provide a partial
framework for regulating decisions and form part of local authorities' Adult
Protection Procedures. But their limitations raise the question of the extent to
which they can effectively facilitate protective intervention where an
incompetent adult is at risk of abuse or exploitation often by carers or
relatives. The decisions in Re Cambridgeshire County Council v R [1995] l FLR
50, Re C [1993] 1 FLR 940, Re S [1995 ] 1 FLR 1075 and Re D-R [1999] serve to
illustrate the potential difficulties confronting local authorities when
disputes arise on what would best promote or protect the well-being of the
incapacitated adult.
MENTAL HEALTH ACT GUARDIANSHIP
Section 7 of the MHA 1983 provides for
guardianship of people suffering from mental impairment and its purpose is to
provide an authoritative framework to enable the patient to receive care in the
community to improve their general welfare. However, a major problem lies in the
restrictions upon who may be subject to an order. The patient's mental
impairment and social functioning must be associated with abnormally aggressive
or seriously irresponsible conduct so that accurate psychiatric diagnosis is
essential for using guardianship as a protective strategy.
The guardian must act in the best
interests of the patient, but can only exercise 3 essential, but limited powers
to the exclusion of anyone else. These require the patient:
(i) To reside at a place specified by
the local authority or person named as guardian.
(ii) To attend at places and times
specified for the purpose of medical treatment, occupation, education or
training and
(iii) Access to the patient to be given at any place where the patient
is residing, to any registered medical practitioner, approved social workes or
other person specified.
The guardian has no legal authority to make decisions in relation to
property and financial matters. There is no express power for the guardian to
compulsorily detain or convey a patient to a hospital or place where the
guardian requires him or her to live, although if the patient absents
themselves, they can be taken into custody and returned to that place within the
specified period: s.18(3). Although the guardian can decide positively who the
patient should see, they cannot restrict the patient's right to freely
associate with others no matter how undesirable they may be and this
reflects the common law right to freedom of association: Cambridgeshire CC v R.
On the other hand, there is no absolute duty to facilitate contact when on
psychiatrist's advice, it would not be in the best interests of the patient: R v
Kent CC ex parte Marston.
Further difficulties arise if the nearest relative objects as this
prevents the application for an order. However, where the relative objects
unreasonably, s.29(3) provides that they may be replaced on application to the
county court.
The
court will objectively assess the relative's objections in the context of a
range of reasonable decisions: W v L [1974] - including whether he or she had
exercised that power without due regard to the welfare of the patient or the
interests of the public. But, until a displacement order is obtained, the
nearest relative's application to discharge the patient from guardianship cannot
be barred by the responsible medical officer on grounds of public safety.
However, R v Central London County Court, ex parte Ax [1999] provides authority
for the proposition that an interim order displacing the nearest relative may be
made at the first hearing provided proper notice has been given. Although made
in the context of a S.3 application for treatment, the decision may potentially
provide a useful precedent where the nearest relative poses a risk by
unreasonably exercising the right to order discharge.
The Mental Health Act Code of Practice
provides detailed and comprehensive procedural guidance to statutory authorities
and professional staff working in health and social services. However, the
guidance is potentially inconsistent. Guardianship is only effective where the
patient recognises the guardian's authority and is willing to co-operate. The
Code points out that if the patient consistently resists the guardian's
authority, the guardianship order should be discharged. It further states that
the procedure should not be used where the powers are not required.
It is therefore
arguable that guardianship would be unnecessary where an elderly person suffers
with dementia and is compliant. But, this would leave professional carers
without an enforceable decision-making framework. The decision-making lacuna is
no doubt one important underlying reason for the Code's recommendation that
guardianship may be suitable for clients who need residential care but lack
decision-making capacity. Where neglect or abuse has occurred, the exercise of
guardianship powers is likely to be necessary. It could conceivably offer a
protective decision-making framework where an elderly person suffers from
Alzheimer's disease and is awaiting hospital discharge. In particular, it may
assist in removing a person from a place where they are at risk and carers
object to the move, but only if the person meets the guardianship criteria and
they are compliant.
The present law is ambiguous in relation to a person who has a marked
degree of dementia but is still able to vigorously express a wish to remain at
home alone or not go into residential care. Where the person refuses to
recognise the authority of the guardian, guidance arguably points to
guardianship as not being appropriate. If this is the case, a power of removal
to residential care exists under S.47 of the National Assistance Act 1948. But
unlike guardianship, the provision does not create wider statutory
decision-making powers in relation to personal care issues.
DECLARATORY
RELIEF
The High Court can make a declaration as to the lawfulness or
unlawfulness of the parties' proposed action and most proceedings have been
concerned with decisions which have more serious, long term consequences. Since
Re F, the jurisdiction has extended to disputes on non-medical welfare matters,
for example, contact and residence. However, although these issues are central
to local authority adult protection policies, case law appears to lend support
to the proposition that an authority may only successfully invoke the
jurisdiction where no other no more appropriate legal framework exists.
The following
individuals would have standing to seek relief where their
rights are in issue:
(i) The mentally incapacitated adult (who can act by his "litigation
friend" - in most cases the Official Solicitor).
(ii) A present or future carer, or
anybody whose past or present relationship with the adult gives them a genuine
and legitimate interest in seeking a declaration. This would include a local
authority who has assumed responsibility for the welfare of the incompetent
adult.
The court
will not intervene unless it is first established that the person lacks capacity
to understand in broad terms, the nature, purpose and likely effects of the
proposal. The court will pay respect to expert medical evidence, but is not
bound by it: Cambridgeshire CC v R. The court will attempt to ascertain what the
person's wishes might be and what is in the person's best interests to prevent
deterioration or improve the person's mental or physical health.
Contact and
Freedom of Association
The courts will uphold the
incapacitated adult's fundamental right to freely associate with others, where
that person has some decision-making capacity and desires contact, particularly
where there is no demonstrable threat of violence or injury. In Re C, a mother
claimed she was denied access to her adult daughter who had bonded with her and
was distressed when away from her. She asserted that contact was crucial to the
emotional development and well-being of a mentally handicapped adult who "never
grows up" and that it fell within the Re F concept of 'treatment and care'.
The Official
Solicitor did not entirely approve of this ground and favoured the
"rights-based" approach on the basis of the common law right to freely associate
and that this was a fundamental freedom guaranteed by the European Convention of
Human rights. On the preliminary jurisdictional issue, Eastham J held that where
access would be in the best interests of the patient, there was no reason why
the court should not exercise its jurisdiction to grant access by way of
declaration. Furthermore, if access was denied contrary to the incompetent
adult's expressed will, or if they were unable to express that will in their
best interests, the court could make a declaration. Significantly, the court
thought that denial of access amounting to a form of "incarceration", was
capable of being remedied by habeas corpus.
The decision in Re D-R establishes
that there is no presumption of contact between closely related adults. A father
relied on Re C to obtain a declaration regarding the right of contact with his
mentally incapacitated daughter. The court held that there is no presumption of
a parent's right to contact with an adult child and that the question for
consideration was whether it was in her best interests to have contact. She was
"passive", there was no bonding and the father was not and would be unlikely to
be significant to her.
This is distinguishable from Re C where the daughter had bonded with her
mother and her distress when away from her constituted an expression of her
desire for contact. The decision would be relevant where strong evidence exists
that contact or residence would undermine the welfare of an elderly person
suffering from advanced dementia, particularly where a relative would not be
significant to the elderly person.
In Cambridgeshire CC v R, a mentally
incapacitated woman with mild behavioural problems had been taken into care as a
child after being abused by her father. She had expressed an interest in
contacting her family who began to pressurise her to return to live with them.
The local authority doubted whether Guardianship could be used to prevent her
from associating with her family.
The authority had continued to be
responsible for her care and in contrast to Re C, sought a declaration that it
might lawfully prevent contact with the family. Hale J held
that the court could only declare the legal rights of the parties and that it
did not have the power to interfere with a common law right.
Alternative
Remedies
In the Cambridgeshire case, the court demonstrated its reluctance to
exercise its jurisdiction where there was an existing appropriate statutory
framework or alternative remedy. Hale J concluded that the woman had some
decision-making capacity and that guardianship would provide a more appropriate
framework to protect her interests, particularly as declaratory relief contained
no "mechanics for review and amendment in the light of later developments". She
acknowledged that the guardian would have no power to restrict access but
thought that access could be controlled through using the general law. An
application for injunctive relief could be made by or on behalf of the woman to
protect her against any tortious action or the occupier's land law rights could
control access. However, Re C arguably provides authority for the proposition
that the latter conduct would be potentially unlawful if its effect amounted to
a form of incarceration. In Re S , the court did intervene where the
incapacitated adult was a "helpless human being" who was completely incapable of
communicating his views. It was decided that it would be best for him to return
to Norway where a guardian had been appointed for him who could continue to look
after his best interests. There was no comparable legal framework in this
country to provide for the appointment of a guardian to make personal welfare
decisions.
CONCLUSION
Guardianship has limited application
but provided the incapacitated adult meets guardianship criteria, the procedure
is a useful protective measure and could be used to remove the person from
abusive carers. In Re F, it was emphasised that a declaration changes nothing:
it cannot make lawful that which, without a declaration, would be unlawful.
Therefore, the only lawful justification for carers' actions in relation to an
incapable person is that it is necessary in his or her best interests. In Re D-R
, Butler-Sloss pointed out the "lack of teeth" in a declaration, and the
inflexibility and inability to monitor or vary its contents. In particular, she
thought that injunctive relief to back up the declaration raised the "appalling
vista" of enforcement and contempt proceedings which was inappropriate for
family disputes where goodwill was required to resolve disputes.
However, where
the at risk adult has no decision-making capacity and, in particular, cannot
express or communicate a desire or view, Re D-R and Re S arguably provide
authority for the proposition that the courts will intervene to apply the best
interest principle, provided no other appropriate remedy
exists.
Where an adult has some decision-making capacity and is compliant or
willing to co-operate with the authority against the wishes of relatives or
carers, the circumstances may be amenable to other legal remedies. For example,
the authority would have sufficient standing to apply as "litigation friend" for
common law injunctive relief , or orders under Part 1V of the Family Law Act
1996, or the Protection from Harassment Act 1996.
In Re D-R, Butler-Sloss observed that
there was a "huge gap in the non-mental health care of those who cannot care for
themselves" . She conceded that the gap had been bridged to some extent by the
decision in Re F , and succeeding cases, but quite rightly said that, "it is a
poor substitute for a statutory framework to provide proper health both to the
incompetent adult and to their families". In the meantime, until the Government
introduces wide-ranging legislation to provide a new comprehensive
decision-making framework, the legal anomalies and uncertainties will continue
to leave carers and incompetent adults potentially at risk.
Sheila Oborne, May 1999
Sheila is a
specialist in community care law and is an advocate for the Greenwich Advocacy
Services for Older People
