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Where now on Mental Incapacity?
Alan Parkin
Lecturer in LawThe Law School
University of Hull
Copyright © 1996 Alan Parkin.
It is reported ( News, Law Society Gazette 1996) that a government consultation
paper is now to follow "in due course", but as 115 organisations and 105 individuals
are listed as responding to the Law Commission consultation, it is difficult to think of
anyone who might have something useful to say whose views have not already been
considered. Given that the Commission's proposals have, by and large, met with
almost universal welcome from organisations which represent the views of disabled
people, and from academics (Gunn 1994; Fennell 1995; cf Carson 1993 ) it can only
be presumed either that the government is concerned about budgetary implications or
that it can detect political difficulties which are not immediately apparent.
One stumbling block may have been the fear that the proposals "advocated the
legalisation of euthanasia" and the Lord Chancellor appears to have given this limited
credence by emphasising that "euthanasia is unacceptable and the government has no
plans to change its policy" (Law Society Gazette 1996). This fear presumably
concerns proposals in the bill in relation to the discontinuance of artificial hydration
and nutrition to patients in a persistent vegetative state, where the power to consent
will be given to the donee of a continuing power of attorney acting within authority or
to a court appointed personal manager (see below). However, Mrs Justice Hale, who,
in her previous persona as Professor Brenda Hoggett QC, supervised the Law
Commission investigation is reported as responding that "the Law Commission report
has absolutely nothing to do with euthanasia". Michael Napier, chair of the Law
Society's mental health and disability sub-committee, also expressed disappointment
at the government's decision although hoping that after further consultation the
government would support the bill (Law Society Gazette 1996).
In the light of these developments it might be opportune to remind ourselves of the
problems that the Law Commission's work was designed to address and the proposals
that have actually emerged. There is a strong case for stating that the major
beneficiaries of the Law Commission's work would be those adults who lack mental
capacity of a sufficient degree to manage all their day to day tasks, together with those
who care for them. It is extremely regrettable that this group, who have traditionally
occupied a low position in the hierarchy of perceived need, should continue to labour
under legal as well as mental disability for a further indeterminate period and this
comment is directed largely at that particular aspect of the report, while setting out in
outline other provisions which were recommended. Top | Contents | Bibliography
It concluded that the existing law was "fragmented, complex and in many respects out
of date. There is no coherent concept of status and there are many gaps where the law
provides no effective mechanism for resolving problems" (para 1.8). Although the
common law had recently focused on obtaining consent to serious medical procedures
following the decision in Re F [1990] 2 AC 1 the Commission felt that the
problem extended far beyond this. High Court procedure was unsuitable for general
consent to more minor treatments which would still constitute assault if performed
without consent and it was unclear who should take decisions about where someone
should live or how their resources should be deployed. Decisions in these areas often
involved deciding between competing rights and interests and involved difficult
choices on the part not only of relatives and carers but also professionals who
themselves were in urgent need of guidance on the extent and nature of their legal
duty.
The Commission therefore sought in its initial paper to generate responses which
would enable it to identify approaches to reform which would be practicable, and an
extensive consultation exercise was entered into. The initial paper set out the context
of the problem of legal and mental capacity, described the existing law and the
mechanisms then available, stated the problems which ensued and speculated on
broad approaches to reform. Experience abroad was considered and options for reform
were canvassed.
The Commission identified, in Part II of Consultation Paper No 119, those recent
developments which made the recognition of this issue more urgent. These include the
movement into the community, demographic change and medical advances which
have resulted in an increase in life expectancy. Increased mobility has resulted in the
breakdown of traditional communities and the break-up of family groupings.
Increases in the independent income of disabled people as a result of social security
and other changes also play a part. Simultaneously there has been a growth in the idea
that people who may previously have been the subject of discrimination or have been
patronised or tolerated have rights which must be recognised. What have failed to
keep pace are the legal means whereby such rights can be manifested.
The Commission extensively analysed the overlapping but distinct ideas of medical
and legal capacity pointing out that legal capacity tends to be context specific and
decided by the court on medical evidence, with the result that distinct tests have
emerged in particular areas ranging from contracts to consent to medical treatment.
However, Re F [1990] 2 AC 1 was concerned not with consent or capacity
but with the question of how to deal with the perceived need for treatment where
capacity was indisputably lacking. There being no procedure for someone else to
decide on the patient's behalf and (the court holding) there being no jurisdiction in the
court to approve or disapprove of the treatment, the only route left is to grant a
declaration that treatment without consent will not be unlawful if the treatment is
justified on the basis of necessity, which further depends on whether the treatment is
in the patients "best interests". The question remained however, whether the best
interests test is the only appropriate method, and, even if it is, who should decide it
and how shall it be judged, particularly in controversial areas? Is the test based on
medical best interests alone or are social or ethical factors to be taken into account? Is
the decision the doctor's or the relative's? Would there not be pressure to find lack of
capacity to enable an outcome thought desirable by relatives or medical advisors to be
achieved? In any case, capacity might fluctuate or might be sufficient for one set of
decisions but not for others?
Whatever the problems may be, the Commission at this stage was confident that
English law as it stood was not capable of a consistent answer to them. The law was
fragmented as a result of ad hoc developments in disparate fields. There were
divergences between the treatment of people and their property; the division of
responsibility between relatives and professionals was unclear; there was no formal
method for resolving disputes. The result was that "conscientious carers and
professionals are often left to do the best they can without any guidance and without
any certain protection against allegations of malpractice or of exceeding their
authority" (para 4.4). Worse, even where there were existing procedures they tended
not to be used because of stigma, or their perceived inappropriateness, and, as a result,
a reluctance to use compulsory powers could result in tragedy as may have happened
in the Beverley Lewis case (para 4.8 and see Fennell 1989). Equally likely is that
significant medical procedures on incapacitated people take place without legal
approval being sought, either because carers and doctors are agreed on it or because
seeking legal sanction is difficult, slow, or results in unwelcome intrusion (para
4.4).
The Commission canvassed a variety of approaches to reform. Realism was necessary
in that any reform may fail to provide clear answers to all possible questions. Equally,
the degree of formality which should attach to decision making in this area is itself
controversial; however, the Commission felt that an increase in formality or at least
the availability of powers of intervention were likely to prove justified. It recognised
the strength of arguments such as 'normalisation' while being alive to the danger that
increasing legal or other autonomy will produce risks (para 4.18). It recognised such
principles as "the least restrictive alternative" and the need to provide a mechanism
which as far as possible avoided stigma. It sought guidance on how a balance might
be achieved between tests such as 'best interests' and 'substituted judgment', where the
choice lay between doing that which the decision maker felt was in the objective best
interests of the incapacitated person and that which the decision maker felt was what
the incapacitated person would have wanted had they been capable. It was recognised
that "it was not easy to see how any legal system which allows one person to take
decisions on behalf of another can at the same time preserve that person's ability to
make the decision for himself if he can" (para 4.25).
Other possible ways of achieving change were discussed in Part VI of Consultative
Paper 119. These included advance directives, to enable a competent person to give
instructions about what he or she wishes to be done, or who he or she wishes to make
decisions on his or her behalf, should competence be lost. Although these were
considered appropriate in certain circumstances they are limited in that they do not
deal with the situation where there is never sufficient competence to make them, nor
might they deal with all the contingencies which might come about. So called 'living
wills' were also canvassed; these are usually understood to operate so as to prevent
unwanted treatment being given under the doctrine of necessity at a time of terminal
illness where competence to withhold consent may be lost. However, in the absence
of clear legislation, the effect of a living will is unclear, particularly in relation to the
professional responsibility of doctors and other professionals who may be asked to
withhold treatment otherwise indicated. Such documents might fail through ambiguity
or over specificity. Fears have also been expressed about moral pressure being exerted
on elderly people to sign such documents particularly where there are financial
implications in continuing care.
The shortcomings of the Enduring Powers of Attorney Act 1985 were considered,
particularly that it is limited to dealing with 'property and affairs' (Enduring Powers of
Attorney Act 1983 s 3(1)) and that it too is of use only if capacity has existed at some
point and the need to exercise the power is recognised before capacity fails. Similarly
considered was the possibility of a general appointment of a 'suitable other' either
nominated or resulting from an existing relationship, which might involve formal
appointment or might come about by operation of law, with the option of a court or
tribunal as a fall back position in the case of decisions which were particularly
significant.
In a series of interim consultation papers (Law Com CP Nos 128, 129 & 130),
the Commission discussed alternative approaches in three associated fields.
Consultation Paper No 128, Mentally Incapacitated Adults and Decision Making,
A New Jurisdiction, was described as concerning itself with private law
relationships and gave a number of indications of the way the Law Commission's
deliberations were going by canvassing the idea of a statutory authority for de facto
carers but rejecting a statutory relationship based solely on family relationships,
setting out a 'best interests' test which might govern that relationship and discussing
the possible limits to a carers authority.
Consultation Paper 128 also contained the Law Commission's interim proposals
concerning the routine handling of money and suggestions that the appointment of
personal managers by some competent court might enable decisions about personal
care and welfare to be brought within a legal structure. The paper also contained the
Law Commission's thinking on the development of enduring powers of attorney.
Paper 129, Medical Treatment and Research, covered very similar legal
ground as Paper 128, but, as its name implies, it was concerned with the question of
substituted decision making in relation to medical treatment. Consultation Paper 130,
Public Law Protection, was largely concerned with means of intervening
where there was a need for investigation or assessment either as a result of suspicion
of neglect or abuse or because a particular individual was vulnerable. The
Commission recognised that including vulnerability could be thought of as extending
the scope of the project but justified this on the grounds that a client group existed
who, while not incapable of taking their own decisions, were vulnerable to abuse or
neglect from which they may be unable to protect themselves (para 1.6). Top | Contents | Bibliography
Part II of the Report re-iterates the context and the basic approach to reform. Against a
legal context of "incoherence, inconsistency and historical accident" and a social
context which makes reform of the law "an urgent necessity" (para 2.45) the paper
reaffirms a commitment to the principle:
that where it is necessary in their own interests that someone else should take
decisions on their behalf, the intervention should be as limited as possible and
should be concerned to achieve what the person himself would have wanted;
that proper safeguards should be provided against exploitation and neglect,
and against physical, sexual or psychological abuse."
Although these objects, the Commission states, have received "very broad support"
(para 2.46) this formulation rejected an idea canvassed earlier that "the protection of
others" should be part of these principles; in the event, this policy aim is left to the
operation of the Mental Health Act 1983.
After considering the extent to which existing legal provisions could be reformed and
strengthened the Commission comes down firmly in support of a unified approach
and the construction of a carefully designed and well constructed basket of legal
procedures to replace what had been described as a "string bag" capacious, flexible
but full of holes (paras 2.47, 2.51). A single piece of legislation is proposed and the
objects of the draft bill are to:
establish a single criterion for the taking of decisions on behalf of people who
lack capacity;
clarify the law where action is taken without formal procedures or judicial
intervention;
extend and improve the law for powers of attorney which outlast
incapacity;
provide for a decision to be made, or a decision -maker appointed, by a
court."
The provisions of the bill were to apply to all over the age of 16 and the Commission
recommended that the Secretary of State should also prepare a code or codes of
practice in connection with the legislation, along the lines of the Mental Health Act
Code. Top | Contents | Bibliography
On 'best interests' the compromise solution is especially valuable and represents an
excellent compromise between various models. It is thus worth setting out in full.
Clause 3(2) states:
(1) the ascertainable past and present wishes and feelings of the person
concerned, and the factors that person would consider if able to do so;
(2) 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;
(3) the views of other people whom it is appropriate and practicable to consult
about the person's wishes and feelings and what would be in his or her best
interests;
(4) 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
action."
Elements of substituted judgement and personal autonomy are thus balanced within
this concept. Equally significant is the Commission's express exclusion from this
formulation of the suggestion, in Re F [1990] 2 AC 1 78, that a doctor who
acts in accordance with an accepted body of medical opinion is both (a) not negligent
and (b) acting in the best interests of a patient without capacity (criticised, Law Com
CP No 119 para 2.22). Top | Contents | Bibliography Top | Contents | Bibliography
Secondly, some treatments would require either a delegated consent or a second
opinion. Non-therapeutic sterilisation and treatment to facilitate the donation of bone
marrow or non-regenerative tissue could be authorised by the court, by delegated
consent, by a court appointed manager or by a continuing power of attorney (see
below). A statutory second medical opinion would be required in cases which involve
Electro-Convulsive Therapy, medicine for medical disorder (after three months
treatment, as in Mental Health Act 1983 Part IV), abortion or sterilisation for relieving
detrimental effects of menstruation. The second opinion test differs from that
currently operating in relation to detained patients under the Mental Health Act 1983.
Treatment is to be given to incapacitated persons where they are without capacity to
consent and where the treatment is in the patient's 'best interests'. More
controversially, as discussed above, proposals in the bill in relation to the
discontinuance of artificial hydration and nutrition to patients in a persistent
vegetative state, would give the power to consent to this to be given to the donee of a
continuing power of attorney or a court appointed personal manager as well as
permitting it to be done with court approval, which is the current common law
position (Airdale NHS Trust v Bland [1993] 1 All ER 821).
There is also a suggested procedure to cover arrangements for elective ventilation in
order to preserve organs for transplant. (para 6.23 et seq; Draft Bill cl 10(4); Rodgers
1995)
Provisions in relation to non-therapeutic medical research set out the circumstances in
which this would be lawful. This would involve a proposed new body, the Mental
Incapacity Research Committee, and consent would need to be given by a manager,
continuing attorney, second medical opinion or court to the effect that the person
concerned is without capacity and that the work is appropriate (para 6.28 et seq and
Draft Bill cl 11). Top | Contents | Bibliography
Proposals for a means of providing assessment and protection to incapacitated and
vulnerable people, discussed in Consultation Paper 130, were confirmed (para 9.6 and
Draft Bill cl 36). The major innovation here is the proposal of an emergency
protection order, along the lines of existing powers contained in Section 135 of the
Mental Health Act 1983. This would enable an officer of the local social service
department to apply for an order authorising the removal to a place of safety of a
person believed to be incapacitated or mentally disordered or vulnerable where there
are reasonable grounds for believing that that person is likely to suffer significant
harm [or serious exploitation] if not removed, and, in the case of a vulnerable person,
that he would not object to the order being made. Top | Contents | Bibliography
In the light of the reported comments it appears that the aspects of the report which
are likely to cause the most concern, and therefore the most difficulty and trouble, in
the passage of legislation are those aspects which are seen as concerned with 'life or
death' matters. It would be strange if this were not the case. However, in those cases
which most touch this issue, those concerning the withholding of treatment to patients
who are in a persistent vegetative state, it has been pointed out (Stone 1995) that no
English case so far has even attempted to suggest what factors might be relevant in
determining what constitutes a patients best interests, and that "attempting to satisfy
that criterion by the mere requirement that a doctor is acting non-negligently is to do a
jurisprudential disservice to incompetent patients, notwithstanding the bona
fides of the individual practitioner concerned". The Law Commission's proposal
go right to the heart of this issue. It may also be the case that news reports of patients
apparently making albeit limited recovery from prolonged periods of coma should
give us all pause before rushing to judgment on the appropriate procedure for
allowing life to terminate (The Times, 1996b), but the present procedure,
involving in most cases the participation of the Official Solicitor and the High Court,
is expensive and traumatic for carers and professionals alike. It is true that there are
other organisations looking at this problem such as a Working Party of the Royal
College of Physicians and the House of Lords Select Committee on Medical Ethics,
but at some point the nettle must be grasped. The same is true of Continuing Powers
of Attorney, where the Law Commission differed from the House of Lords Select
Committee in concluding that doubts about proxy decision making did not make them
undesirable but reinforced the need for adequate safeguards. (Law Com No 231 para
7.7 et seq)
Ultimately the responsibility for deciding whether or not to act on legal reform lies
with Parliament. In an area where complex ethical issues impinge on day to day
decision making, either the matter is left entirely to doctors, lawyers and other
professionals to do their best according to their lights, or an attempt is made to frame
a statement of present consensus which is authoritative. The point was made in a
different sphere in the news report (The Times 1996a) of the appeal from
Re V (Declaration against Parents) [1995] 2 FLR 1003, where Sir Stephen
Brown invited Parliament to clarify the legal rights of people who are severely
physically handicapped, not mentally impaired, but suffering from
communication difficulties, where there were disputes between carers over the best
course of treatment. The responsibility for prompting Parliament to take such action
lies with the Government. It remains to be seen whether the announced delay is an
exercise in consultation or procrastination.
Meanwhile, there are many recommendations in the report which are relatively un-
controversial and action upon them would confer undoubted benefit both on those
who lack capacity to deal with day to day affairs and those who care for them. The
incapacitated are, by definition, an uncomplaining group, although their carers may
not be. While there is clearly much to be said for a unified approach to the issues of
capacity, it would be regrettable if the interests of this group are ignored or delayed
while extended discussion take place on more controversial matters. The interests of
the majority should not fall, yet again, at the wayside of legal reform.
Carson, D (1993) 'Disabling Progress: The Law Commission's Proposals on Mentally
Incapacitated Adult's Decision Making' Journal of Social Welfare & Family
Law 304.
Fennell, P (1989) 'The Beverley Lewis Case: was the law to blame' 139 New Law
Journal 1557.
Fennell, P (1995) 'The Law Commission Proposals on Mental Incapacity' Family
Law 420.
Gunn, M (1994) 'The Meaning of Incapacity' 2 Medical Law Review 8.
Law Commission Consultation Paper 119 (1991) Mentally Incapacitated Adults
and Decision Making; An overview (London: HMSO).
Law Commission Consultation Paper 128 (1993) Mentally Incapacitated Adults
and Decision Making: A New Jurisdiction (London: HMSO).
Law Commission Consultation Paper 129 (1993) Mentally Incapacitated Adults
and Decision Making: Medical Treatment and Research (London: HMSO).
Law Commission Consultation Paper 130 (1993) Mentally Incapacitated and
Other Vulnerable Adults: Public Law Protection (London: HMSO).
Law Commission No 231 (1995) Mental Incapacity (London: HMSO).
Law Society Gazette (1996) 'Mental Incapacity Bill causes storm' 93 Law Society
Gazette 4.
Rodgers, M E (1995) 'The Law Commission's Proposals on Mental Capacity and the
Legality of Elective Ventilation for Transplantation Purposes' [1995] 4 Web
Journal of Current Legal Issues.
Stone, J (1995) 'Withholding life-sustaining treatment' 145 New Law Journal
354.
The Times (1996a) '"Over-protective" mother wins right to care for disabled
son' 3 February 1996.
The Times (1996b) 'Coma victim starts talking again after seven speechless
years' 17 February 1996.
First Published in Web Journal of Current Legal Issues in association with Blackstone
Press Ltd.
Summary
Contents
Introduction
The Lord Chancellor has announced that the government has decided not to enact, in
its current form, the draft bill on mental incapacity proposed by the Law
Commission,. The bill was contained in the final report of the Law Commission
which was the culmination of a process spanning four years and involved an initial
consultative document (Law Com CP No 119) followed by three further consultative
documents (Law Com CP Nos 128, 129 & 130) and a final report, Mental
Incapacity (Law Com No 231)The
Initial Problem
In its first consultation paper (Law Com CP No 119) the Law Commission identified
a target population which the project was to encompass. Their common characteristic
was that they suffered from such a degree of mental disorder or disability that they
were incapable of taking decisions for themselves. The Law Commission included as
potentially within the scope of the exercise people with mental handicap, elderly
people with mental infirmity, people with a mental illness, brain damaged people and
people who suffered from a physical illness or handicap which resulted in difficulties
of communication. Final
Recommendations.
The final recommendations of the Law Commission were contained in their report,
Mental Incapacity (Law Com No 231). The report summarised the present
position, set out the process of reasoning which had led the Commission to its
conclusions, made a series of detailed proposals for change and contained a draft bill
whereby these proposals could be implemented. "that people should be enabled and encouraged to take for themselves those
decision which they are able to take;
"define capacity;
Defining incapacity and
deciding best interests
Part III of the Report consists of an exhaustive analysis of the concepts of capacity
and 'best interests'. The Commission reached the view after much debate that a
threshold condition of mental disability should be necessary before capacity could be
called into question and that capacity should then be decided according to the
functional test earlier canvassed. Mental disability means "any disability or disorder
of mind or brain which results in impairment or disturbance of mental functioning"
(Draft Bill cl 2(2) annexed to the Report) and a person would lack capacity if, at the
material time, he or she is unable by reason of mental disability to make a decision on
the matter in question or is unable to communicate it because of unconsciousness or
some other reason (cl 2(1)). A person should be regarded as unable to make a decision
by reason of disability if it is such that, at the time when the decision needs to be
made, he or she is either unable to understand or retain, or make a decision based on,
relevant information including information about reasonably foreseeable
consequences of deciding one way or the other, or failing to make the decision (cl
2(2)). "Understanding" means understanding an explanation in broad terms and
simple language (cl 2(3)). Making a decision which is imprudent cannot itself invoke
incapacity (cl 2(4)). "In deciding what is in a person's best interests regard should be had to:-
A Statutory
Authority to act in the patient's best
interests
This provision which is set out in clause 4 of the Draft Bill is simple but effective as it
provides a statutory framework for the making of decisions on every day matters,
including financial matters, for people with incapacity. Authority is given in Clause 3
to do anything for the personal welfare or health care of someone who is, or is
reasonably believed to be, without capacity if it is "in all the circumstances reasonable
for it to be done by the person who does it". An element of consultation is required
where the patient has a person caring for him or interested in his welfare and the actor
must also consult any appointed manager, attorney or nominee (see below) and,
under Clause 6, cannot act against the express wishes of these latter. The use or threat
of force in order to do something to which the incapacitated person concerned objects
or the confinement of the incapacitated person with or without their consent is
prohibited in Clause 5 unless it is "necessary to avert a substantial risk of serious harm
to the person concerned". Limitations on
Treatment
This takes a number of forms. The bill would allow advance refusals by persons over
18 to be recognised if limited formalities were complied with. These would not extend
to basic care nor forbid treatment to prevent death or deterioration while the legality
of the refusal was in question. There would be a presumption that it did not apply
where the refusal endangered the person's life or that of her foetus, unless the contrary
was clearly specified. A
revised Court of Protection
References to "Court" are to the proposed development of the existing Court of
Protection. Having rejected as inappropriate any redevelopment of the parens
patriae jurisdiction the Commission proposes general supervision of this area by
a Court of Protection available locally rather than in London and staffed by judges
with appropriate experience for the matters under consideration which could include
capacity, treatment and the scope and validity of advance refusals of treatment and
continuing powers of attorney. The latter would be extended to include health and
welfare decisions as well as property and affairs. The Court would also have the
power to appoint a manager, but only on the basis that single issue orders are more
desirable than a managerial power, even where this is limited, as they suggest it
should be, only to those decisions which the person in incapable of taking for himself
(para 10.9 and Draft Bill cl 46).Conclusion
It can be seen that, although limited controversy remains in some areas, there will be
significant benefits in the vast majority of areas covered by the Report. The
Commission felt that the resource implications were small (para 9.41). Given the pre-
occupations of government and the electoral cycle, the signs are not, however,
encouraging.
Bibliography