Access to Justice Under the Mental Incapacity Jurisdiction

Feature

posted 1 May 1998 in Volume 3 Issue 4

Access to Justice Under the Mental Incapacity Jurisdiction

In my last article I identified numerous obstacles to older people with physical or mental impairments seeking access to justice in the civil courts. Will they fare any better under the new jurisdiction proposed for mentally incapacitated adults?

Background
The problem

When considering this topic, think of the needs of auntie who has developed Alzheimer's disease or the young man that you know who has severe learning disabilities. I think of the future of my son and this helps to concentrate the legal mind. How will uncertainties or disputes be resolved about where they are to live, what they are to do, how their money is to be spent and what medical treatment they are to receive? Who is to make such decisions and on what basis are they to be made? Most readers will have come across situations where serious doubts have been raised as to what could or should be done by an older person with senile dementia and who had the authority to make the decision. The present answer, in regard to decisions other than of a financial nature, is that there is not an accessible legal solution although Judges have struggled to develop one when pressed. This could be you in the future, so what would you want to happen then?

The Law Commission proposals

The Law Commission Report No. 231 Mental Incapacity was published in February 1995 following no fewer than four consultation papers. It included a draft Mental Incapacity Bill and there was almost universal support for this amongst professionals and charities active in this field. A parallel process took place in Scotland which has its own laws and similar conclusions were reached. Then the Daily Mail stepped in, attacking the Law Commission as undermining family values and identifying this Bill along with the new domestic violence legislation. This was largely because decisions about end-of-life medical treatment would be dominated by patients rather than doctors, admittedly a controversial area yet fundamental to the general concept that we try to achieve what the individual would have wished rather than that which those in control think best (which may mean best for them). Little was said about the need to make other decisions for a mentally incapacitated adult, yet this selective attack threatened to undermine the whole process of reform. The Government took fright, withdrew the domestic violence legislation (to re-emerge in Part IV of the Family Law Act 1996), and stated that it would not introduce a Mental Incapacity Bill 'in its current form' but would 'issue a consultation paper'.

The Green Paper

Many of us who had been involved in the earlier consultation process for more than five years thought that this was the end of a dream and the Law Commission proposals would gather dust on the shelf like so many previous Reports. Then following a general election the new Lord Chancellor embarked upon an ambitious programme of law reform. This includes a Human Rights Bill to give effect to the European Convention on Human Rights in the UK and the continuance of civil justice reforms following Lord Woolf's Report Access to Justice - both of significance to mentally incapacitated adults. Despite this activity Lord Irvine moved forward on the Law Commission proposals by publishing the Green Paper Who Decides? Making Decisions on Behalf of Mentally Incapacitated Adults which was summarised in David Chatterton's article in the April 1998 issue. The short consultation process has now ended so it is too late to make your views known, but it appears that the Government means business. The need for most of the reforms was accepted but the Government expressed the wish to consult further on how they may best be implemented and those that may be controversial. There is thus a clear indication of the shape of the law in the years to come for those who cannot make their own decisions.

Access to Justice
The Judicial forum

The Law Commission realised that if decision-making issues are to be referred to the courts, this must be to locally available judges trained to understand the special demands made of them. It proposed that the existing Court of Protection be abolished and replaced by a new London based Court of the same name comprising also a number of selected and trained judges of all levels throughout the country. They would cope with the new jurisdiction in their existing courts alongside other work but under a senior judge who would ensure consistency of approach. These judges would have power to obtain welfare reports thereby obtaining independent information and guidance that is denied to them under an adversarial process. A similar approach is adopted to care work under the Children Act 1989.

Regrettable the Government has already rejected this approach and states that the existing Court of Protection could initially cope despite the extension of the jurisdiction from financial matters to personal and health care decisions. This no doubt reflects funding implications for the administration of the courts, but overlooks the additional cost for everyone else involved. It is difficult to conceive how family, carers and professionals living in the country could attend hearings in central London to resolve these matters, or how the existing staff and facilities could absorb the many and varied new applications that would be made.

Typical applications

The following are examples of situations that may need to be dealt with under the new jurisdiction (many more could be suggested for individuals with learning disabilities):

1. There is a dispute between a son and daughter who live some distance apart as to which residential care home their mother should move to. She has Alzheimer's disease and is incapable of participating in the decision but has adequate funds to meet the fees of any home. Her solicitor has an old enduring power of attorney so is able to make financial decisions but is unwilling to become involved in the family dispute. Some method is required of resolving this dispute which is becoming increasingly acrimonious but does not address mother's best interests. Reference to a nominated Judge sitting in the local County Court under the new jurisdiction would be more effective than to the Master of the Court of Protection in London.

2. Following a divorce between elderly parents there is a dispute as to which parent is to continue to care for their 40 year old mentally disabled child and the future of the matrimonial home may depend on this. A nominated District or Circuit Judge could whilst sitting also in the new jurisdiction deal at the same time with the ancillary relief claims whereas the Master of the Court of Protection would have no such concurrent jurisdiction.

3. Older parents with three adult 'mentally handicapped' sons became involved in a bitter divorce which results in father being excluded from the matrimonial home where mother continues to care for these sons. A daughter who has sided with father is then denied access to her brothers and seeks to establish that it is in their best interests to see her on a regular basis. (I am dealing with such a case at present in the High Court and this is disproportionate in its use of legal resources). A suitably trained local District Judge could resolve the issue under the new jurisdiction in the context of the divorce and in the same way as a contact dispute involving a child. How could a London based Court of Protection deal with this?

4. A landlord/mortgagee brings a possession action for non-payment of sums due and the elderly tenant/mortgagor attends Court but appears confused and unable to cope. Doubts arise as to mental capacity and the Judge finds himself in great difficulty knowing how to proceed. Under the new jurisdiction he could refer the action to a nominated Judge with practical experience in such matters who could deal with the capacity issues, the need for practical support and the merits of the possession claim all in the same proceedings.

Problems

These situations are not encountered by the existing Court of Protection and illustrate the need for both local dispute resolution and an overlap between the operation of the new jurisdiction and the existing role of the civil/family courts. Only the Master of the Court of Protection at present has the judicial qualifications that one would expect for the resolution of such issues and to appoint deputies would be more expensive than conferring the new jurisdiction upon a few existing Judges on a regional basis. It is difficult to imagine how the Master or any judicial officer sitting in London could tackle this type of application. Simply appointing a 'manager' to make the decision would be an unacceptable delegation of judicial powers to an administrative official. At present such matters might be referred, if at all, to a High Court Judge under the Court's inherent jurisdiction, but they all appear to come within the proposed new jurisdiction and local adjudication procedures are needed at a more cost effective level.

Solutions

The new Court of Protection cannot be seen as a separate and distinct court, but needs to function in part through trained Judges working on a regional basis within the existing court system. I contemplate a small number of nominated Judges who can if necessary be called upon to take cases in any Court on their Circuit and where appropriate sit in a dual jurisdiction. An appeal would go before a more senior Judge also nominated to sit in the new Court of Protection. Could not a local District Judge whose daily work includes resolving disputes over broken relationships and the welfare of children also cope with the personal needs of incapacitated adults, with more senior Judges tackling serious health care decisions? This could be done under the umbrella of the London based Court which would retain its existing receivership jurisdiction.

Conclusion

Once legislation has established the principles and created new powers for delegated decision-making, the details can be fleshed out in court Rules and Codes of Practice which would develop according to experience and changes in social climate. But if procedures for resolving disputes and uncertainty in relation to incapacitated adults are not made available to ordinary families throughout the country, reform of the law in this area will be of little benefit to them. The new jurisdiction may look impressive on paper but be a dead letter in practice - some would say that they have seen this before in regard to community care with implementation of enlightened social policies being stunted by lack of public funding. Could this be the hidden agenda - introduce a new jurisdiction for decision-making on behalf of incapacitated adults but make access so difficult and expensive that it does not become a burden to the rest of society?

Gordon Ashton, The author is a district judge and member of the Law Society's Mental Health & Disability Sub-committee. He has written several books about older and mentally disabled people and the law.