United Kingdom Journals

The Consequences of Incapacity

Peter Bartlett*
Lecturer in Law
University of Nottingham

<Peter.Bartlett@nottingham.ac.uk>

*An earlier version of this paper was presented to the Department of Learning Disabilities, University of Nottingham. My thanks to Professor Michael Gunn for providing useful comments on an earlier version.

Copyright © 1997 Peter Bartlett.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

After years of study and consultation, the Law Commission published its proposals relating to mental incapacity in 1995. Their future remains uncertain.

The current situation, where judges respond to needs in an ad hoc and piecemeal basis is intolerable. The article explains how we have arrived in this situation, and specifies the patient rights and administrative criteria which would underpin an ideal system.

The article then turns to the Law Commission proposals. Their most original recommendation, that anyone ought to be able to make any decision for the benefit of a person believed to be lacking capacity, while having advantages, is shown also to be problematic for patient rights. The Commission proposals for planning for incapacity and court application are argued to be defensible, but further consideration is needed as to how the various mechanisms proposed by the Commission will function together. Finally, it is argued that the need to audit decisions made on behalf of those lacking capacity is much underdeveloped by the proposals.

Contents

Introduction

The Legal Context

Systemic Values

Individual Rights and Autonomy

Administrative Workability

The General Authority to Act Reasonably

Planning for incapacity

Court Applications

Public Law Protections

The System as a Whole

Conclusion

Bibliography

Introduction

It is now eight years since the Law Commission commenced its examination of mental incapacity. Four discussion papers led to a final report in 1995, in all a refreshing and often original re-working of the problems associated with defining capacity and administrative responses to incapacity. The future of the proposals remains in doubt. The former government was hesitant to proceed, due to alleged ethical difficulties apparently related to the Commission's proposals regarding euthanasia and medical research (Wilson (1996) at 228, Parkin (1996)). It instead indicated that it would issue a discussion paper, thus reviving the consultation process. The new government has not taken a firm view as to the course to be pursued. Options include re-opening consultation, introducing legislation based on the Law Commission's proposals, or, conceivably, doing nothing.

The worst case scenario would have the government according reform a low priority. As the next section of this paper demonstrates, the removal of the traditional judicial jurisdiction in matters of incapacity, coupled with an absence of legislative direction, has left courts of necessity reacting ad hoc to cases as they arise and re-inventing jurisdiction on a piecemeal basis.

The momentum toward reform must therefore be maintained. Whether the government elects to proceed with legislation directly, or instead to instigate further consultation, the Law Commission proposals will be central to the discussion. They are the most developed option currently on the table, reflecting most of the themes upon which academics and legal reformers have been focused for much of the last decade.⁽¹⁾

Notwithstanding an insightful critique of the implied ideologies of the proposals from David Carson, (Carson 1993) the general response to the Law Commission's work has been understandably favourable, since the proposals have much to recommend them (see Parkin 1995; Fennell 1995; Gunn 1994). That said, the proposals do have their problems. While no system will be perfect, a balanced view of the strengths and weakness of the Commission proposals in their final form seems appropriate. If they are to be considered for implementation, we should know the good and the bad of what we are buying.

This paper is intended to further this discussion, not as in Carson's work by examining broad philosophical questions, but from a more internalist perspective. It will not deal primarily with the appropriate definition of mental capacity; that has been considered in a sizeable literature elsewhere (see e.g. LCCP 119 at part II; Gunn 1994; Fennell 1994; Jones and Keywood 1996; and Ontario 1990 and sources cited therein) Instead, it will discuss the Commission proposals as an administrative systems for coping with mental incapacity.

Much of the discussion surrounding the proposals is likely to revolve around a small number of "sexy" topics such as experimentation on subjects of marginal capacity, specific medical treatments such as abortion or sterilisation, euthanasia and the termination of life support systems. These are important issues without doubt, but a focus on these topics is likely to privilege the exceptional case at the expense of the common client with mundane, albeit important needs. For that reason, this paper will avoid these specific and controversial areas, and focus on broader systemic matters.

Before embarking on that discussion, it is appropriate to discuss briefly what the existing system looks like, and how it arrived in that formation.

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The Legal Context

From time immemoriam until 1959, the royal prerogative extended to mentally incapacitated adults. In its original, medieval conception, management of the estate and person of lunatics and idiots was controlled by the Crown. As late as Blackstone, it appears as one of the sources of the King's revenue, although by that time, actual management of the estates and persons of those subjected to the power were routinely delegated, generally to family members. While subjected to considerable legislative amendment, particularly in the nineteenth century, the parens patriae power never quite escaped from its roots: determination of insanity remained, formally, a power of the Crown granted to the Lord Chancellor by commission under the Sign Manual. Once an individual was found incompetent in personal matters or estate matters, his or her committee had the same powers over the estate, person or both as a nineteenth-century father had over his fourteen-year-old child. Beyond this distinction between personal and estate decisions, there was no concept of partial guardianship; either all or no personal decisions were under the purview of the committee. Thus while the power was broad enough to encompass all decisions necessary to control and care for the insane person, it was an exceptionally blunt instrument to administer what might be a relatively limited problem of personal competence.

The 1959 Mental Health Act did not practically alter the power over the estates of insane persons, although it changed the justification from the traditional royal prerogative to a statutory footing. Now called the Court of Protection, it is constituted by part seven of the Mental Health Act 1983. It remains a relatively crude intervention. A finding of incompetence results in control being taken of all the estate and the complete removal of contractual capacity from the client; no provision is made to allow the client continued control over those decisions where they remain competent (e.g. a personal chequing account) while removing those where they lack capacity (e.g., a stock portfolio). The intake mechanism of this body remains relatively flexible, covering anyone "where, after considering medical evidence, he [the Master of the Court] is satisfied that a person is incapable, by reason of mental disorder, of managing and administering his property and affairs." (Mental Health Act, s94(2)) While there is no requirement that an individual be a current or former psychiatric patient, a "mental disorder" is necessary, defined as "mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind".(Mental Health Act, s1(2)) The fact that medical evidence must be considered prior to the Master making a decision suggests that this definition is not wide enough to encompass problems of capacity which are not within the medical taxonomy. The mechanisms for control are similarly flexible. It is open for the Master to appoint a receiver to handle day-to-day management of the estate, but complete discretion is available as to whether this will be done, and who will be selected. Thus family members may or may not be involved, depending on appropriateness.

The estate situation was altered somewhat in 1985, by the Enduring Powers of Attorney Act. Prior to this Act, incapacity terminated a power of attorney. The Act allows a power of attorney executed in a specific form to be registered with the Court of Protection upon the incapacity of the donor, and the donee of the power thus to continue exercising it. The result is that the donor of the power effectively chooses who will administer their affairs during incapacity, rather than leaving the decision to the Court of Protection.

The 1959 Act also placed personal guardianship on a statutory footing. Persons suffering from one of the forms of mental disorder specified in the Act could be received into guardianship when necessary in their own interests, or for the protection of other persons. (Mental Health Act 1959, s33) The forms of mental disorder, in turn defined in section 4, were not narrowly defined, but they did exclude some incapacitated people. An individual unable to manifest a choice owing to a stroke, for example, would not have qualified under the Act (see Jones 1996, at p 20; Hoggett 1996, at p 39)

As under the previous parens patriae jurisdiction, the guardian received all such powers as a father could exercise over a child under the age of fourteen years. (Mental Health Act 1959, s34(1)) The 1959 Act thus did not materially alter the scope of the powers of guardians.

The 1983 Act changed the nature of personal decision-making in a variety of ways. To begin with, it clarified the situation of persons admitted to psychiatric facilities. It is now express that sectioned patients can, under certain circumstances, be treated without their consent. By negating the need for consent, these provisions circumvent the issue of capacity.⁽²⁾ By necessary implication, informally admitted patients are subject to the common law relating to treatment, in the same way as persons outside psychiatric facilities are (Jones 1996, at pp 215-20; Hoggett 1996, at p 134)

Regarding guardianship itself, the 1983 Act changed some nomenclature, but it did not fundamentally alter the criteria for appointment.⁽³⁾ Guardianship remained available for anyone suffering from one of the four forms of mental disorder, now called mental illness, mental impairment, severe mental impairment, and psychopathic disorder, if necessary for the welfare of the individual or the protection of other people. As with the 1959 Act, admission to a psychiatric facility was not a pre-requisite.

Unlike the 1959 Act, however, the 1983 Act considerably restricted the powers of guardians. The guardian could now merely require the individual to reside at a specified place; require the individual to attend at places and times specified for medical treatment, occupation, education or training; and require access to the individual by doctors, social workers, or other persons (see Mental Health Act, s 8). The powers appear to be specific. Thus the power to require an individual to live in a specific place does not include the power to restrain him or her at that location, so if the incapacitated individual wishes to wander, the Act provides no power to stop them. Similarly, the power to require attendance for treatment does not include the power to consent to treatment on behalf of the incapacitated individual (see Gunn 1986, at p 149; Hoggett 1988, at p 86; Jones 1996, at p 57) Thus the 1983 Act left a lacuna: no mechanism was available to appoint an individual to make many important personal decisions on behalf of a person lacking capacity.

In 1990, the common law responded to this difficulty. Re F [1990] 2 AC 1 HL involved the question of who could give consent to treatment for a mentally incapacitated adult. Relying upon a considerably expanded doctrine of necessity, the court held that, in general, consent of incapacitated patients was not required. The doctor was to act in the patient's best interests, without consent. This general rule concerns therapeutic treatment only. For non-therapeutic medical interventions, such as contraceptive sterilisation's and the withdrawal of life support from persons in a persistent vegetative state, good practice would dictate that court orders ought to be obtained.⁽⁴⁾

This common law jurisdiction is expanding. In Re S [1995] 3 All ER 290 CA regarding jurisdiction (see also [1995] 4 All ER 30 regarding merits), the court adjudicated between competing claims of wife and common law spouse as to who would have authority to make personal decisions regarding an incapacitated stroke victim. The case is a significant expansion of Re F. F had focused on questions of consent: in what way could treatment be given so as not to offend the law of battery. The mechanism was to alter the law relating to the defence of necessity, to include treatment in the best interests of the incapacitated patient. S is not about necessity. Neither applicant nor respondent were suing for authority to act on S themselves, but rather for authority to give directions to third parties as to his care. S is thus a case about selecting a substitute decision-maker, not protecting actual care-givers from liability.

This is not a minor difference, since it renders the case very difficult to fit into the necessity justification and the declaratory procedure of F. It would appear that with this decision, the courts have substantively altered the type of claim they will entertain. Consider a case where a hospital or nursing home believed it in the clear best interests of an incapacitated patient to remain in the facility. Under a parallel argument to F, a necessity argument might give legal authority to take appropriate measures to see that he or she do so. In the event of dispute, a court application might be available to see if the nursing home was at risk of committing a tort. It is less obvious how these remedies would apply to the third-party decision-maker appointed in S, who is not obviously at risk of committing a tortious act.

The result is problematic. What would be the legal situation if the view as to best interests by the carer were at odds with the wishes of a spouse or other third-party, armed with a court order modelled on Re S? Is the care-giving facility required to act in opposition to what it believes is the best interests of the patient? Canvassing the views of family members as to the patient's best interests was merely good practice under F; it was in no way determinative. Yet if the carer retains legal authority, what authority exactly has been given to the Re S applicant?⁽⁵⁾

English courts have also started to give effect to advanced directives for medical treatment. It would seem from Re T [1992] 4 All ER 649 CA that advanced refusals of medical treatment are likely at least to be theoretically binding on treatment following incapacity, although Butler-Sloss LJ rather unhelpfully held that only nominal damages would be available absent resulting injury (Re T at p 665; see also Staughton LJ at p 669)) That problem may, perhaps, have been partially remedied in Re C [1994] 1 WLR 290. In that case, a psychiatric patient successfully challenged an attempt to amputate his gangrenous leg. The court not only respected his competent wishes in this regard, but granted an injunction prohibiting amputation, in the event that C were to lose competency subsequently. The injunction purported to apply to all doctors, not merely those who were parties. The validity and efficacy of that order are open to question, but if this sort of injunction is available, its violation would be a contempt of court, which could give rise to substantial damages. A significant remedy might be provided, where Re T had offered only nominal damages.

That said, the facts of C were unusual. Injunctions quia timet require a threatened violation of a right, and strong proof that the violation will materialise absent injunctive relief. In C, atypically, there was a very real probability that C would lose capacity in the relatively near future, and an express refusal by the treatment facility to undertake to abide by his wishes expressed while competent in that event (Re C at p 292) In the more usual case, where an individual is not of fluctuating capacity and where the carers concerned have not expressly refused an undertaking, it is difficult to see that courts will entertain injunction applications as a matter of course. The usefulness of C at circumventing the nominal damage issue in T is therefore limited.

In the wake of Re F, the Law Commission commenced a project to assess the law relating to mental incapacity. The idiosyncratic development of the common law since that time re-enforces the continued importance of the project. For present purposes, the Commission proposed three pillars to the law in this area: first, that there ought to be a general authority for anyone to do anything reasonably necessary for the benefit of a mentally incapacitated person; second, that advanced directives ought to be encouraged and ought to be binding; and finally, that court processes ought to be available where necessary where necessary, for appointment of managers or enforcement of advance directives. All decisions are to be consistent with a new and much-improved best interests test, which takes account of the individual's wishes both when competent and at the present time, the views of other appropriate people such as a carer or holder of power of attorney, the need to involve the individual in decisions affecting them, and the least restrictive alternative.

There is much in the Law Commission proposals to recommend them. At the same time, they are more problematic than the existing commentaries have identified, and they do not warrant blind approval. Before assessing the proposals, it is necessary to establish some criteria.

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Systemic Values

The Law Commission identified a variety of principles to guide their deliberations (see LCCP 119 at paras 4.17 to 4.27; Law Com No 231 at para 2.46) Consistent with the direction of virtually all recent disability politics, they favoured normalisation of people lacking capacity, treating those lacking capacity as much as possible as others in society, and encouraging the marginally capable to be as active as possible in decisions which affect them. Capacity was to be presumed, absent evidence to the contrary. Intrusions into personal decision-making autonomy were to be the minimum required, and increased regard would be given to the client's prior competent wishes, if known. Procedural safeguards were to be provided with as little stigma as possible. At the same time, quite rightly, the Commission was concerned to create a workable system, without unnecessary administration.

These are entirely appropriate objectives. In order to understand the workings of the proposals, however, further elaboration is required.

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Individual Rights and Autonomy

If the principles of normalisation and the least restrictive alternative are desirable in theory, they are nonetheless difficult to implement. Two sets of variables must be considered. First, there are the variety of categories of decisions which need to be addressed. The list of personal decisions, for example, includes personal care, place of residence, medical treatment, selection of friends and companions, and a host of other matters. (LCCP 128 at para 6.1) This is complicated by the fact that the abstract categories overlap in practice. Payment of rent involves an estate-related decision, theoretically distinct from the decision as to where someone will live, a personal decision; yet it is difficult to see how the two can be pragmatically separated. (see LCCP 199 at para 4.3) Second, a given category may encompass a wide variety of decisions, requiring different levels of competence. Medical treatments, for example, are of differing complexity, and a given patient may be competent to consent to some treatments but not others.

Privacy is a substantive right which warrants protection. It is not generally expressed, but may perhaps be implied in the Law Commission objectives.⁽⁶⁾ The fact that an individuals lack mental capacity in some or all areas does not mean they would wish their affairs to become known. It is also important if normalisation is to be fostered, and stigma avoided. The implementation of this principle once again poses considerable difficulty, particularly when a substitute decision-maker is selected. In making decisions regarding medical treatment, for example, aspects of an individual's medical history may well be relevant, which the individual might well prefer to keep confidential, even, or sometimes especially, from close family members. The situation becomes more difficult as more people gain access to the information.⁽⁷⁾ The possibility of leaks of the information increases, and as the information moves outside relationships where legal duties of confidentiality apply, legal recourse for such leaks ceases to exist.

Confidentiality is not merely a matter of client dignity, but also client protection. Increasingly public knowledge that an individual is a vulnerable person, and particularly a vulnerable person with money, may well increase the chances that the unscrupulous in society will endeavour to take advantage.

At the same time, there is a positive substantive right of persons lacking capacity to appropriate care and protection. As the Law Commission points out, the right to a guardian is established in the UN Declaration on the Rights of Mentally Retarded Persons, to which the United Kingdom is a signatory.⁽⁸⁾ The image of persons of marginal capacity left alone to fend for themselves is rightly repudiated by civil society, and people in need going without such assistance are marks of failure in the system. At the Law Commission notes, the case is even more emotionally compelling when the facts involve not merely general neglect, but exploitation of the client, emotionally, physically, or economically (Law Com 231 at para 2.46). An ideal system would reach all and only those people in need of guardians, as far as but only to the extent that they are in need of guardians.

It is possible to see the protection of the client in such situations as a paternalist value, although care must be used to ensure that this does not become a method of marginalisation. Few clients will be without opinions, competent or incompetent, relevant to the decisions to be made in their area(s) of incapacity. The principle of normalisation, of inclusion of the client in the decision-making process as far as possible, requires that due consideration of these views be taken by the guardian. As noted above, different categories of decision are not independent, and thus decisions made in an area of incapacity may well determine those in an area of capacity. If the substantive right to care and protection is to be a positive right, consistent with the principle of least restrictive alternative, it must be embodied in a fashion which supports rather than detracts from decisions made in areas of competence, affirming the dignity of the individual.

Client protection raises the issue of audit of guardians' decision-making. In the good system, ex hypothesi the clients will lack capacity to understand decisions made by the guardian. This does not mean that guardians will be making the appropriate decisions. Family members managing assets might place their own potential inheritances above the provision of a higher standard of accommodation for the client. Alternatively, they may simply not be very good at the decisions in question. Either way, an ideal system would have mechanisms to assess the calibre of the decisions being made.⁽⁹⁾

This raises a variety of procedural issues. Even if the client is of limited capacity, he or she may be able to identify potential maladministration, suggesting that some substantive or due process safeguards ought to be available at the instigation of the client. At the same time, some clients will not be in a position to identify poor decisions, and one therefore cannot rely on clients to be the engine of challenges. The current check under part seven of the Mental Health Act involves routine accounting to the Court of Protection. Such reporting of financial decisions is a relatively easy, since all receipts and expenditures can be included on an account, which may be confirmed by cross-reference to bank statements. Supervision of personal decision-making is more complex. What decisions should a guardian responsible for a client resident in the guardian's home include on a report to a supervisor? And how is the supervisor to know that the guardian is telling the truth or deciding appropriately?

One partial answer would be to extend standing to complain beyond the client. Yet how broadly should this be done? A relatively broad route of access would protect the individual from adverse decision-making, but it would also prejudice his or her privacy, since it is difficult to see that a worried third party complainant would be satisfied without reasons.

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Administrative Workability

The system will be of little practical worth if it is unworkable (LCCP 119 at paras 4.1-9, 4.14-16; Law Com 231 passim). While that appears trite, a cursory glance at the statistics gives rise for scepticism as to the workability of the present and previous systems. Only 19 people had committees of the person in 1957, two years prior to their abolition, and in 1992, only 233 had guardians under the limited Mental Health Act provisions (Jones 1996, p 50) There may be a variety of reasons for this, but administrative unworkability may be one.

Workability raises a variety of issues. Allocating a court or tribunal the authority to make individual decisions may protect an individual's procedural rights and thus his or her substantive rights, but it is likely to be administratively cumbersome, requiring multiple applications to the tribunal over the course of the individual's guardianship. Such individual decisions may be required to be made with reasonable dispatch, and a backlogged tribunal could cause real prejudice to client well-being. Similarly, a centralised bureaucracy of management of estates is almost certain to encounter staffing problems. For example, the current Court of Protection, with a staff of 300, administers roughly 22,000 estates (LCCP 119, para 3.9).

Workability must be understood in the context of the issues of least restrictive alternative and normalisation, noted above. As noted above, capacity may be limited both according to level of sophistication and type of decision. Workability must thus imply flexibility, if it is to apply to all and only those decisions in which an individual lacks capacity.

The risk is that a system which meets the needs of least restrictive alternative collapses under its own bureaucratic weight. Some individuals are of fluctuating capacity. The least restrictive alternative would thus seem to require continuing assessment in at least some cases, to ensure that orders ceased promptly upon re-gained capacity. Similar continuing assessment would ideally be appropriate for those with gradually decreasing capacity, to ensure that alterations to their legal status reflect their gradual changes. Particularly if such continuing assessment is understood as a state responsibility, considerable administrative resources would be necessary.

Process implies inherent problems. For example, there are limitations as to how quickly an administrative system can be expected to respond. There may also be a reluctance to use the system by people potentially involved in the administration. Here, it is worth distinguishing between professional administrators (such as court or tribunal officials, doctors, local municipal and health authorities) and non-professionals, (mainly families), and to consider what trade-offs are appropriate to accommodate the interests of each. Certainly, the professionals have legitimate concerns which must be considered. At the same time, they are paid, generally by the state, to do a job. The presumption ought to be that it is inappropriate to prejudice individual rights to protect the convenience of such professionals. Professional concerns ought to be addressed in other ways.

That said, there is much to be said for the view that less administration is better than more, and it is thus appropriate to ask when professional resources are really required. As an example, medical evidence is required prior to the involvement of the Court of Protection, whether the medical evidence adds anything material to the case or not. (Mental Health Act s94(2)) Obviously there may be cases where it does, but it seems excessive to insist upon a professional's report when it adds nothing. The appropriate problem is thus to determine when professional involvement is really necessary to create a quality system?

Similar arguments carry less force when dealing with non-professionals involved in administration of the system, such as families. Their involvement tends to flow from moral or practical duty, and is non-remunerative. While certainly the rights of these individuals cannot simply take precedence over the rights of clients, their needs and concerns are of necessity a factor. This of course creates a difficulty, in that the good faith and abilities of families cannot be taken for granted, and it would be asking a superhuman task for families to separate their own needs from those of the incapacitated individual. Personal decisions are particularly problematic here, because they are so difficult to audit. Families and similarly situated individuals thus occupy a peculiar place in the theoretical structure, warranting both deference and circumspection.

In all this, a guiding principle ought to be the administrative application of Ockham's Razor: absent compelling reason to the contrary, simpler administrative solutions are to be preferred to more complex ones. This is not simply an economic question, although simpler solutions are often cheaper. More fundamentally, the first protection of client rights and the integrity of the system is the understanding of the system by all who are involved in its administration. Complex systems, particularly when administered by people whose expertise is not in bureaucracy, are bound to be administered improperly. It is difficult to see how this can work to the benefit of anyone, least of all the clients.

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Balancing Interests: The Law Commission Proposals

Obviously, no system will meet all the criteria identified above. Trade-offs will have to be made. The old parens patriae system failed on most counts. It certainly did not import the principle of least restrictive alternative. The only partial intervention possible centred on the distinction between estate and personal decisions. There was no distinction, for example, between ability to make decisions regarding where to live and decisions regarding treatment. Nor was there any distinction between degrees of difficulty within the same class of decision. Thus a finding of incompetence in estate matters rendered an individual equally incapacitated regarding contracts for the purchase of land and for the purchase of a chocolate bar. This remains unchanged under the current Court of Protection legislation. The policy of the current court administration is to allow some the client control where possible, to allow the purchase of sundries. It is difficult to fault this policy on either humanitarian or pragmatic grounds, but its legal status is at best unclear.

The parens patriae system was expensive and administratively inflexible. While formally strong on due process protections, these can have been viable only for relatively wealthy clients, who could afford the costs of full-scale court challenges. While court application processes were available to oversee decision-making, it is at best unclear how successful monitoring of such decisions actually was by the court. This comparison with the old days is a reminder of how far legal and political thinking has progressed in a relatively short time. Whatever solution is to be adopted, and whatever the shape of the continuing debate, it would be wrong to glorify the past.

In comparison to the parens patriae system, it is difficult to see how the Law Commission proposals can fail to attract. A new best interests test enshrines normalisation and least restrictive alternative as guiding principles throughout the new system. Consistent with those values, competent individuals are encouraged to make decisions regarding care during subsequent incapacity. Outside those expressed wishes, the general authority to act for the benefit of an incapacitated person, if functioning properly, represents an extraordinarily flexible mechanism, covering all and only those decisions in which the individual lacks capacity. Court processes, with their more ornate procedures and decreased flexibility, would be available, but only if other mechanisms failed.

It seems somehow ungrateful to ask for more. At the same time, new solutions create new problems. Solutions which seek to combine a variety of administrative mechanisms, such as will almost certainly be the case with any legislation adopted in England, raise particular problems. The Law Commission proposals provide a case study of the sort of problem that may arise.

As the three main proposals of the Law Commission represent quite different approaches, they must be discussed separately. There are also a variety of difficulties as to how the approaches fit together. These will be discussed at the end.

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The General Authority to Act Reasonably

The cornerstone of the Law Commission's recommendations is a general authority to do anything for the personal welfare or health care of a person who is, or is reasonably believed to be, without capacity, if it is reasonable for it to be done by the person who did it. Suppliers of goods or services would have a right to reasonable remuneration for necessaries provided in this way, and the person taking the initiative could pledge the client's credit, apply the client's money, or pay the account themselves, and be indemnified by the client. Mechanisms are also suggested so that pension or other income could be paid to a third party carer, in expectation that it would be applied for the benefit of the individual.

It is here that the Law Commission is at its boldest and its most novel. In reality, decisions are now made constantly on behalf of the marginally capable; the proposal is to place these decisions on a firm legal footing, and to provide appropriate support to those who make the decisions. There is an emotional appeal to this approach in that it offers support to those who, often out of the goodness of their hearts, provide care to people in need.

The general authority has considerable advantages. It is designed to apply to all and only those decisions the client is unable to make himself or herself, thus addressing the issue of least restrictive alternative, and the consequent variations in difficulty and category of decision. It meets Ockham's administrative razor: no state involvement or administrative process is involved in the grant of authority to an substitute decision-maker, with the consequent benefits of minimal economic cost of the system and no delay in determining who has authority to make a decision. Minimal bureaucracy would be required for the re-direction of client funds to those in a position to apply them to the client's benefit, a clearly attractive feature for family and other carers.

There are, of course, problems. At a minimum, this aspect of the system is supportive. It does not require anyone to act for the welfare of the client. It thus provides no right to care or guardianship. More problematic are a lack of due process safeguards.⁽¹⁰⁾ For example, the client does not actually need to be incapacitated, but instead must merely be "reasonably believed to be" without capacity (Draft Bill, cl 4(1)). This may be necessary to minimise administration, but it does mean that a competent individual may be required to pay for goods or services that he or she did not order, and may have objected to receiving. Admittedly, decisions made under this power are subject to the general requirement of best interests of the client, which require regard to be had to the wishes of the client and the consequent need to involve the client in decision-making, (Draft Bill, cl 3(2)(a) and (b)) yet it is not clear how forcefully these provisions would be interpreted in the face of actions by a well-meaning, albeit misguided, carer. The express provision of the bill that the client need not actually be without capacity might well hold sway, to the detriment of the client.

An additional problem surrounds the interpretation of the requirements that decisions be "for the personal welfare or health care" of the client, and that it is "in all the circumstances reasonable to be done by the person who does it" (Draft Bill, cl 4(1)). The decisions within the scope of the power are intended by the Commission to be quite broad, from the delivery of milk, to a hairdresser, gardener, or chiropodist to call, to the employment of someone to repair a roof, to sending the client on an excursion or holiday (Law Com 231, para 4.7). All of these, and particularly the latter examples, may prove costly. It is difficult to see that a neighbour, for example, who orders a roof to be fixed, or contracts for a major cleaning of the client's home to be done, acts other than "reasonably" even if, unbeknownst to them, the cost of such a service cannot be afforded by the estate. It is difficult to see what recourse clients or their representatives would have under these circumstances. At the same time, the proposals never discuss who should have access to what information about clients. While information is vital to ensure proper decision-making, it would be an extraordinary intrusion into the privacy of the client to allow any potential decision-maker access to the client's personal affairs, financial or otherwise, to ensure that proposed decisions were the right ones.

Indeed, with the movement away from a system based on process and state intervention, it is possible and anticipated that a variety of decision-makers may make decisions on behalf of the same individual. While this is a useful aspect of the system's flexibility, it does raise possibilities of dysfunction as well. The fact that anyone has authority to make decisions for the client means that no one person will necessarily have an overview of, or control of, the decision-making in the individual's case. It is counter-intuitive that where care in the community programmes are increasingly required to provide key workers to ensure the coherence of care, this role is absent from the general authority.⁽¹¹⁾ The resulting problems are twofold. As no one has an overarching role in the care of the client, there may well be decisions which ought to be made which are not made. The client risks falling through the cracks. Alternatively, decisions of different decision-makers may overlap. In a simple example, it is quite possible that both a well-meaning neighbour and a family member will each purport to bind the client to contracts for garden maintenance. It might well be the case that both these arrangements would be valid under the terms of the general authority, and the client might be forced to pay a cancellation fee for one of them. Poor communication between decision-makers can be seen as creating potential administrative headaches to the cost of the client. Sharing information between decision-makers is problematic since there is no defined set of who these people are. In any event, broadly shared information between a multiplicity of decision-makers, with the correspondingly increased risk of information leaks to those without legitimate needs to know, puts the client's privacy at risk.

Conflicts between individuals purporting to exercise the general authority may be more direct. It is entirely possible that different individuals may have different views of the client's best interests. Unless one chooses to make a court application, there is no obvious way that a general authority of the type proposed by the Commission would preclude either from acting.⁽¹²⁾

The provisions of the Draft Bill do not preclude the person authorising the provision of goods or services from receiving financial or other benefit therefrom.⁽¹³⁾ Here, the problem of defining reasonableness of decisions leads to particularly unpleasant possibilities. Particularly if knowledge of the size and nature of the estate is not a requirement for reasonableness, then if it is reasonable for a carer to order a hairdresser to call, it is presumably equally reasonable for the hairdresser (or cosmetics seller, or stock promoter, or double glazing salesman) to call at his or her own accord. While it may seem justifiable to continue service provision on a scale commenced during the client's competency, it is less obviously desirable to allow sellers, pedlars and hawkers to establish new relationships with clients subsequent to incapacity, and to have the general authority to act reasonably to hide behind in the event that their sales are questioned. In a health care context, is it reasonable for a consultant to move an incapacitated patient to their private practice from their NHS one, to circumvent a waiting list and (incidentally?) pay the physician a fee? It is difficult to see what recourse would be available in these cases. In the event of a major and continuing conflict, a court application might be appropriate under Part I chapter IV of the Draft Bill, thus precluding continued abuse, but it is not obvious that a court could preclude payment for goods or services provided before the court application.

The general authority is to be buttressed with financial support provisions. These include administration of client funds by carers themselves. While this may facilitate care in some circumstances, no provision is made to require accounts of those funds to be rendered. It seems uncontroversial that funds provided in this manner would constitute a trust for the benefit of the client, and thus certainly a carer who did not devote the sums to the benefit of the client would be subject to the standard trust remedies in such a situation. Local authorities are given the duty to investigate allegations of serious exploitation (Draft Bill, cl 37(1)) in which category some such breaches might fall. The difficulty is that it is not clear how such a breach of trust would come to light. The relevant financial matters are unlikely to be a matter of public knowledge. Out of deference to the privacy of the client, this seems entirely appropriate; yet that same privacy may well provide a cloak for fraud. A system which would have required the recipient of social service income on behalf of an incapacitated person to account for expenditure of the funds periodically was abandoned by the Commission as overly onerous, in a climate where the DSS was already having difficulty convincing people to act as appointees.⁽¹⁴⁾ Admittedly, the scale of abuse would be limited by the financial limitations in the draft statute: only £2000 per year may be diverted in any agreement between payer and payee (Draft Bill, sch. 1, cl 4(1)) yet different agreements may be entered into by a single payee with various payers suggesting a maximum annual aggregate considerably in excess of £2000, and even £2000 is a considerable amount for some estates.

The problem of auditing decision-making is clearest regarding these financial matters, but it exists equally for personal decision-making. There is no reason to believe that the person who happens along, whatever their motives, will necessarily be skilled in making decisions for the client. The old parens patriae system, cumbersome though it was, allowed initial scrutiny by the court of the guardian for suitability, and the possibility of supervision of decision-making by the court over the duration of the appointment. Whatever its other virtues, those do not exist under the general authority principle.

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Planning for incapacity

The Commission proposals would allow individuals to plan for incapacity in two ways. First, they would allow advanced refusals of medical treatment, so that unwanted treatment could not be given under the general authority discussed above, in the face of a decision made when competent that the treatment should not be given. Where the definition of best interests contained in the Draft Bill would require consideration of the past wishes of a client for any decision made on the client's behalf (Draft Bill, cl 3(2)(a)) within the scope of the advanced refusal of treatment, such wishes would be binding. Second, the Commission would allow the client when competent to select an individual to make personal decisions for him or her upon subsequent incapacity, similar to the power already possessed regarding estate-related decisions.

The first of these mechanisms, advanced refusal of treatment, is not properly about guardianship at all. It is instead about limitation of guardianship, by limiting the authority of the decision-maker. Thus the provision clearly impinges on the right to guardianship, care, and treatment: that is precisely its point. It embodies a fate chosen by the client expressly, where rights to care yield to rights of autonomy.⁽¹⁵⁾ This rights approach continues in much of the remainder of the advanced refusal provisions. There are no formalities requirements (Draft Bill, cl 9(5)). While there is a presumption against the validity of refusals which endanger the life of the client or, if the client is pregnant, the foetus (Draft Bill, cl 9(3)), this is only a presumption. These situations may be expressly contemplated by the refusal. Given the failure of the English courts to give effect to the wishes of pregnant women when the viability of a foetus is at stake, this apparent restriction in fact represents an advance in women's rights (see e.g. Re S (Adult: Refusal of Treatment) [1993] Fam 123).

The advanced refusals have the benefit of minimal bureaucratic intervention and maximum flexibility. While this could result in uncertainty by doctors as to validity, the Draft Bill protects doctors from liability in the event that they withhold treatment on the reasonable belief that a refusal is valid, (Draft Bill, cl 9(4)) and for the provision of sustaining treatment pending a court determination of the validity of the refusal (Draft Bill, cl 9(7)(b)). Understandably, the treatment provider is also shielded from liability for treating without knowledge of the treatment refusal (Draft Bill, cl 9(4)). There will be some necessary breach of privacy, in that someone will have to be made aware of the advanced refusal so that the treatment provider will subsequently be made aware of it, but even here, the violation is minimal: clients can choose who they will make privy to this decision prior to their incompetence, selecting someone they trust to notify treatment providers of the refusal, should the need arise. That said, it is difficult to see that the person notified would have any legal obligation to notify the treatment provider.

On balance, these advanced refusals would appear to meet the bulk of the objectives identified earlier. Indeed, it seems open to ask whether similar mechanisms ought to be introduced into the remainder of personal welfare and estate-related decisions, where under the Draft Bill, past and present wishes of the client are merely one factor for consideration.

Binding restrictions are at least in theory available under the other mechanism of advance planning, the continuing power of attorney for personal care.⁽¹⁶⁾ These documents would allow appointment of a decision-maker, whose authority would take effect upon the incapacity of the donor and subject to any restrictions stated by the donor in the grant of the power. Decisions taken within the scope of the power take precedence over inconsistent decisions taken under the general duty to act. As long as the attorney is prepared to act, therefore, the power serves not merely to appoint a decision-maker, but to restrict the involvement of others. This is an important advantage for those not on good terms with those who might otherwise expect or be expected to provide decisions regarding care. Unlike the advanced treatment refusal, continuing powers of attorney must be in a prescribed form, signed both by donor and donee (Draft Bill, cl 13), although the revised Court of Protection is given authority to order that a similar document outside the form will nonetheless be binding (Draft Bill, cl 17(1)). In order to take effect, the power would need to be registered. This would generally be a merely administrative task, ensuring minimal hassle, expense and delay.

Registration would ensure that notice had been given to the donor and up to two other people identified by the donor in the power (Draft Bill, cl 15(6)). This notice in turn provides the occasion for one of these people one of these people to object in the event that enforcement of the power was inappropriate. In that event, more sophisticated due process safeguards would be triggered, and the power would not take effect without a court order. Query what the availability of legal aid will be for client and attorney, in the event that a court hearing is necessary. If unavailable, the process safeguards would be illusory in most cases.

The administrative structure of these provisions would correspondingly reduce the flexibility of the instrument. While the attorney may only make medical decisions if the donor is, or is reasonably believed to be, incompetent to make those decisions (Draft Bill, cl 16(3)(a)), this is the only form of partial effect allowed by the proposals: beyond this, the attorney either has the full set of powers granted by the power, or none. If the client is competent for some areas of decision-making covered by the power but not others, this must result in either a violation of either the principle of least restrictive alternative in the event that the power is registered and takes effect, or the right to guardianship in the event that the power is left moribund for the time being. Not merely does the continuing power of attorney not take account of varying capacity between areas of decision-making, it further does not allow for distinctions between decisions of differing difficulty within the same category. A power covering financial matters for example is problematic if a client is able to make some financial decisions but not others. The same restriction either of least restrictive alternative or of the right to care and guardianship will occur.

In this context, it can be seen that while allowing the client to select the individual who will make decisions for them upon incapacity, the enduring power may be more restrictive of their actual decision-making power relative to the general authority, since the general authority is decision specific, where the power affects all those decisions of whatever difficulty, within the scope of the power.

In theory, this difficulty might be settled by application of the court's power to restrict the scope of the power (Draft Bill, cl 17(3)(c)(ii)). The power could be restricted to include only those categories of decision-making representing current client incapacity. In the event of a subsequent change in the donor's capacity, successive court applications could either further restrict or extend the power. This would introduce a considerably heavier administrative structure, however, with correspondingly increased costs. In that event, there is no obvious advantage of the continuing power of attorney over a court application.

Some theoretical problems arise in the event of a donee unwilling to act. If such an individual declines to register the power, it may effectively be circumvented in its entirety. For the court to appoint a new attorney (Draft Bill, cl 17(3)(c)(i)), the matter needs first to be drawn to the court's attention. If the attorney declines to do this, absent others aware of the power, it is difficult to see who would know to make the relevant application. In addition, even if the attorney registers the instrument, there is no duty actually to make required decisions (Law Com 231, para 7.10). As there is no routine audit mechanism under the proposed structure to ensure that even those powers of attorney which are registered are being acted on appropriately for the benefit of the client, even the client who takes the trouble to plan in advance may sometimes not through this mechanism receive appropriate care and protection.⁽¹⁷⁾

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Court Applications

The Commission would re-introduce a court jurisdiction as a last resort. Unlike the old parens patriae jurisdiction, the courts would be able, and indeed instructed by statute to appoint managers (similar to guardians in the older language) for the most limited time and scope of decision-making consistent with the needs of the client (Draft Bill, cl 24(2)). The Draft Bill addresses such partial guardianship expressly in terms of categories of decision-making (Draft Bill, cl 25(1), 26, 27), and there is nothing in the Draft Bill which would preclude account being taken of varying difficulties of decision-making within the category. Thus an order could presumably be made to appoint a guardian for all and only those medical decisions for which the client lacked capacity to consent, or allowing a client to keep control of a small personal bank account, but granting management of the stock portfolio to a guardian of the estate. Assuming this interpretation to be correct, the proposed jurisdiction reflects the ideal of least restrictive alternative, discussed above.

The manager under the court procedure is a delegatee of powers by the court, and subject to court supervision. Periodic reporting to the Public Trustee could be ordered by the Court (Draft Bill, clause 28(6)(a)). The fact that the grant of authority flows from a court hearing suggests that such a reporting provision may be a matter of routine consideration by the court, at least when the authority is granted. After that time, like the analogous provision relating to enduring powers of attorney, it would be open for a court to order reporting, but it is not obvious how the necessity to do so would come to light.

Typical of court procedures, these would be strong on due process. The rules regarding standing and notice would place clients in a relatively strong position to make representations regarding the scope of powers to be covered by any order, and the choice of the individual who would be appointed as manager. The process protections of course also have their difficulties. The court system is not designed to move swiftly, so that immediacy of decision-making is unlikely to be readily available through this route.

Court processes are also expensive. Traditionally, the legal fees of all non-frivolous parties are paid from the estate of the client. This flows from the belief that those attempting to do good for the client should not be economically penalised for so doing. Whatever the merits of that argument, the result of that the economic risk of litigation falls disproportionately on the client. Interestingly, while special provision is made for local authorities to fund litigation under various family law statutes (Draft Bill, cl 43), no such provision is made for litigation for remedies under the Draft Bill. Litigating their rights becomes an extraordinarily expensive process for even relatively wealthy clients, and absent legal aid for both client and other relevant parties, out of the realm of possibility for clients other than the wealthy. The result is likely to be a considerably higher pressure on the client to settle, than on any of the other litigants.

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Public Law Protections

The mechanisms described above are essentially supportive only. They provide legal frameworks in which care may be provided, but none would purport to ensure care and protection for people in need. The objective of the Commission was to create an informal system, with effective "rescue" mechanisms in place when things went wrong (LCCP 119, para 4.16) The court processes discussed above provide a partial solution only, in they provide no system to ensure abuses are brought to light. It is only in the public law protections proposed by the Commission that a safety net can be found for abuses or errors.⁽¹⁸⁾

The Law Commission proposes a public law duty of local authorities to investigate allegations of "significant harm or serious exploitation" in their area (Draft Bill, cl 37(1)). This duty would extend to all "vulnerable persons", a different but to some degree overlapping class than those lacking capacity discussed in the remainder of the proposals.⁽¹⁹⁾ Resulting intervention could take a variety of forms. In the short term, emergency orders would be available to remove the individual to protective accommodation for a period up to eight days. Longer term solutions are not limited by the Commission's proposals, but would include becoming guardian of the client under the existing provisions of the Mental Health Act, and also the power to assist in the enforcement of family law and domestic violence legislation.⁽²⁰⁾ Solutions are left appropriately flexible. In some instances, a care régime might be able to be constructed by the local authority using individuals known to the client. This would presumably involve an application of the general authority to act for the benefit of an incapacitated adult. In other instances, some form of partial guardianship might well be made available, through the new jurisdiction of the court under the Act, with the local authority serving as manager.

The Commission has made necessary compromises in the formulation of this duty. The most significant is the balance selected between the right to care and protection, and the autonomy and least restrictive alternative rights of the client. The balance is implied in the phrase "significant harm or exploitation" (Draft Bill, cl 36, 37, 38, 40, 41(1)(b)). The result is that some clients will be left in situations considered by some members of the population to be substandard or unpleasant. Others who may be content to tolerate certain circumstances or behaviour may feel their lives intruded upon by a local authority which perceives the situation as exploitative. Given the variables in question, conflict here seems inevitable. Particularly in a situation where a client is of marginal capacity, but still surviving more or less successfully on their own, the hesitancy implied by the Commission prior to intervention seems defensible.

The restriction does place a considerable limit on the role of the public authority as a mechanism to check the appropriateness of decision-making where a substitute has already taken control, however. As the client has already lost control of the decisions in question, least restrictive alternative ceases to be an issue in this case. In the case of an individual who is acknowledged to be incapacitated, it is therefore less clear theoretically why "significant" harm is to be required prior to intervention.

More problematic is the selection of the local authority as the investigator. The first problem is noted by the Commission: local authorities operating on stretched budgets are already loathe to divert staff from existing services to new services (LCCP 119, para 3.32). This aspect of the problem is political: if we care about abuse of vulnerable people, we have to be prepared to provide funding for adequate service provision.

The Law Commission does not address a potential conflict of interest. An increasing number of vulnerable adults are leaving psychiatric institutions and other centrally regulated systems, and moving into services provided by local authorities. In addition, clients outside formal service provision are likely to receive local authority financial assistance. The reality is that a significant amount of the investigation may be of the local authority itself. The Law Commission does not discuss how full and impartial investigations will be carried out, and be seen to be carried out, in that event.

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The System as a Whole

Whatever system is adopted must be a coherent whole. To be effective, it must also be simple and clear enough that those charged with its administration, generally not professional administrators or lawyers in this case, will be able to administer it effectively, for the first line of defence to the client's rights must be that those who wish to administer the rules fairly can do so. On these points the Law Commission proposals have some difficulties.

The general authority to act does not necessarily sit comfortably with the continuing power of attorney and court-appointed mangers. The Act provides that these will preclude the exercise of the general authority (Draft Bill, section 6(1)). Absent considerable violation of the client's privacy, it is not obvious how the person purporting to exercise the general power will know of the existence of such mechanisms. It is possible that individuals may rely on the general power in good faith, only to discover that it does not exist, to the financial detriment either of them or of the client.

While the general authority to act yields to specific directions or decisions made by the attorney, the two are otherwise expected to be able to coexist. The Law Commission foresees that the general power will continue to be available in the event that the attorney fails to act (Law Com 231 at 7.10). This can yield unusual results. In the event that the attorney fails or refuses to act in a specific matter, the decision taken by a different individual under the general authority to act. While that action would have to be in the best interests of the client as defined by clause 3 of the Draft Bill, it could nonetheless be in direct conflict with the instruction in the power of attorney. In that event, the intention of the client is thwarted, perhaps with the knowledge of all concerned. There is no obvious remedy for this apparent breach, since there is no way of requiring the attorney to act.

In addition, there may be some friction on the margins. How inactive need an attorney be before decisions taken by an individual under the general power to act may be upheld? The Commission refers to attorneys "genuinely unable to arrive at a firm decision" (Law Com 231, para 7.10) This makes indecision a specific moment in the decision-making process, comparable to making a decision. In practice, inactivity by the attorney may also be owing to erratic availability or varying degrees of devotion to the task. In the result, the persons purporting to exercise the general power may be unable to know whether or not they have the relevant authority.

There are in addition some difficulties with the jurisdiction of the court which warrant some consideration. Decisions of the court-appointed manager, like those of the attorney, take precedence over those made under the general authority to act. It is not clear whether a manager, like an attorney, has the option as to whether or not to act. The better view is probably not, since the manager is exercising delegated power from the court. In that event, the remedy for an individual concerned about dereliction of duty by the manager would be a court application, not the invocation of the general authority to act.

The role of the court is also unclear regarding advanced refusals of treatment. Do these bind the court, or not? On the one hand, there is no provision to alter such refusals, and it is reasonable to expect that express jurisdiction would be included if it were intended, particularly since it is defined for continuing powers of attorney (Draft Bill, cl 17). At the same time, the court does have the general power to "make a decision or decisions on behalf of a person without capacity" (Draft Bill, cl 24(1)(a)). The decision as to consenting to treatment are presumably such decisions. The Commission suggests in a consultation paper that the court would be able to overrule the wishes of the client in appropriate circumstances (LCCP 119 at 6.3), but the final report is ambiguous on the point.

The issues here are the degree to which the client's wishes ought to be respected in the event of either arbitrariness or changed circumstances. The former would seem an inappropriate occasion for intervention. Individuals with capacity have a right to their idiosyncrasies; there is no obvious reason those without capacity should be denied theirs. If we are to respect the values of individual autonomy which are implied in the forward planning mechanisms, mere peculiarity of a result cannot be a justification for its alteration. The hard-line approach is, however, less convincing in the second case. What if the refusal of treatment is believed to be based on a set of circumstances which no longer applies? Consider a refusal of treatment for a condition based on concern about adverse effects of the treatments then available for that condition. Ought the court be able to intervene in the event that a new treatment becomes available without the adverse effects? It seems somehow inappropriate in that case to leave the client unaffected by a change in circumstances of which they were not aware, and could not necessarily have foreseen.

The final difficulty is the overall complexity of the framework, when viewed as a whole. A survey of what doctors would have to keep straight regarding treatment will make the point. Generally, they can treat on the best interests basis, unless the treatment is non-therapeutic, in which case different rules apply. If there is an advanced refusal, it is presumed to be binding on the doctor and on patient's attorney, but perhaps not the court. There is no formalities requirement. There is an exception if the individual is pregnant, or the condition for which treatment is proposed is life-threatening, in which cases there is a presumption (but only a presumption) that the refusal is not applicable. Advanced refusals can never preclude basic care, as defined in the Draft Bill, and treatment is permissible pending a court hearing as to validity of the advanced refusal. Continuing powers of attorney are subject to more stringent formalistic requirements. If those are met, the power even if registered will be effective only if the patient is incompetent to make the decision in question. They cannot cover admission to psychiatric hospitals or basic care, and may only trump an advance treatment refusal if the power expressly so provides. They will also be deemed not to include procedures otherwise requiring court approval, procedures requiring second opinions, discontinuation of artificial nutrition or hydration, procedures for the benefits of third parties, life-sustaining treatment or participation in non-therapeutic research unless the power specifies to the contrary. Courts can do pretty much what they want, but court-appointed managers will be restricted by the terms of their appointments. In all these cases, absent express direction from the client, are to act according to the "best interests" definition of the statute (which itself contains four sub-clauses, one of which contains four sub-sub-clauses). Non-therapeutic treatments would be subject, to special regimes. Organ donations would require court approval. Sterilisation processes, abortions, electro-convulsive therapy and treatments extending more than three months for a mental disorder would require second medical opinions. Termination of life-support would require either approval of the court, or of an attorney or manager with authority to provide that decision. Research would require, along with internal ethical committee scrutiny within the doctor's facility, approval of a new Mental Incapacity Research Committee, which would have statutory criteria.

Admittedly, the complications are most apparent when viewing the doctor's situation; and admittedly, these are ethically charged issues which of necessity may require solutions of some complexity. It is nonetheless to be recalled that doctors, like other administrators of any system introduced, cannot be expected to be expert in legal exegesis and statutory interpretation. The detail included in the meshing together of the various mechanisms is likely to be confusing to doctors and others administering the system, and with that confusion will inevitably come errors. This is unfortunate both because it may leave the doctor open to a civil action for battery and, more important, because it might violate the rights, dignity or practical interests of the client.

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Conclusion

The current system is in need of reform. It would indeed be a shame if political difficulties regarding some of the high-profile ethical issues contained in the proposals foreclosed the introduction of a new and workable system to provide appropriate dignity and protection to those lacking capacity.

The eventual solution adopted is likely to include one or more mechanisms allowing a client to plan for future incapacity, a default mechanism to occur when they fail to do so, and a judicial or quasi-judicial fall-back in the event of difficulty. The Law Commission proposals incorporate these elements in an imaginative fashion. The study of those proposals thus provides insight into the sorts of compromise which will be necessary in any solution. As the number of decision-makers increases, the privacy of the client is dissipated, as information relevant to those decisions must be provided. The overview of decision-making is similarly at risk of being lost, with a consequent risk that the client's needs fall through the cracks. The use of fixed categories of decision risks either leaving clients without assistance for decisions they are unable to make, or removing authority for decisions they are able to make. Once decision-making authority is removed, there is the thorny difficulty of guardian supervision and accountability. And the detail of the various responses must be thought through, to result in a coherent whole.

It is precisely the creativity of the Law Commission proposals, and particularly of the general authority, which make further discussion appropriate. Notwithstanding the Consultation Papers, it is only with the publication of the final report that the proposals emerged as a specific and unified package. The political hesitancy to enact the provisions provides a space for continued discussion of the package, rather than merely of the components. It is my hope that this paper will both have emphasised the continuing need for reform, and also furthered discussion of that package.

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Bibliography

Carson, D (1993) 'Disabling Progress: The Law Commission's Proposals on Mentally Incapacitated Adults' Decision-making' Journal of Social Welfare and Family Law 304.

Fennell, P (1994) 'Statutory Authority to Treat, Relatives and Treatment Proxies' 2 Medical Law Review 30.

Fennell, P (1995) 'The Law Commission Proposals on Mental Incapacity' Family Law 420.

Gunn, M (1986) 'Mental Health Act Guardianship: Where Now?' Journal of Social Welfare Law 144.

Gunn, M (1994) 'The Meaning of Incapacity' 2 Medical Law Review 8.

Hoggett, B (1988) 'The Royal Prerogative in Relation to the Mentally Disordered: Resurrection, Resuscitation, or Rejection?' in Medicine, Ethics and the Law: Current Legal Problems, Freeman, MDA (ed) (London: Stevens) 85.

Hoggett, B (1996) Mental Health Law, 4th ed. (London: Sweet and Maxwell).

Jones, M and Keywood, K (1996) 'Assessing the Patient's Competence to Consent to Medical Treatment' 2 Medical Law International 107.

Jones, R (1996) Mental Health Act Manual, 5th ed. (London: Sweet and Maxwell).

Law Commission No 231, (1995) Mental Incapacity (London: HMSO).

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 128, (1993) Mentally Incapacitated Adults and Decision-Making: Public Law Protection (London: HMSO).

Ontario, (1990) Final Report of the Ontario Enquiry into Mental Competence (D. Weisstub, chair), (Toronto: Queen's Printer).

Parkin, A (1996) 'Where now on Mental Incapacity', 2 Web Journal of Current Legal Issues

Siegler, (1982) 'Confidentiality in Medicine - A Decrepit Concept', 307:24 New England Journal of Medicine 1518.

Wilson, P (1996) 'The Law Commission's report on mental incapacity: medically vulnerable adults or politically vulnerable law?', 4 Medical Law Review 227.

Footnotes

1. The exception is a system where a substitute decisionmaker is drawn from a prescribed list, usually based on family status, such as is used in a number of North American jurisdictions: see, eg., Ontario Consent to Treatment Act, 1992, S.O. 1992, c. 31. Back to text.

2. The 1959 Act was re-enacted with modifications in 1983. Under section 63 of the 1983 Act, consent is not generally necessary for treatment of involuntarily detained patients for mental disorder in psychiatric facilities. In general, therefore, the issue of capacity does not arise as a matter of law. This provision is wider than might at first appear. Relying on a broad definition of treatment in section 145(1), the courts have been content to give an expansive reading to the phrase "treatment for mental disorder": see, for example, R v Mental Health Act Commission, ex p. X (1988), 9 BMLR 77 (hormone treatment to control sexually deviant behaviour of paedophile was treatment for mental disorder); B v Croydon HA [1995] 2 WLR 294 (C.A.) (providing food to physically self-abusive patient a treatment for mental disorder); and, in extremis, Tameside and Glossop Acute Services Trust v CH [1996] 1 FLR 762 (Caesarian section treatment for mental disorder).

The exceptions to the general rule contained in section 63 are psycho-surgery and surgical implantation of hormones to reduce sex drive in male patients, where consent of the competent patient and two medical recommendations are both necessary prior to treatment (s57). For electro-convulsive therapy, and medication beyond three months from the time of confinement, either competent consent of the patient or a second medical opinion is necessary (s58). Back to text.

3. The Law Commission perceives guardianship under the Mental Health Act as operating "as a social services function and a form of state intervention.": LCCP 119 at 3.31, LCCP 128 at 1.4. While that reflects the current usage of the section, there is no obvious reason to read the Act itself so restrictively. Back to text.

4. For contraceptive sterilisation, see Re F [1990] 2 AC 1. For removal of life-support systems, see Airedale NHS Trust v Bland [1993] AC 789. Back to text.

5. It is tempting to see a parallel between a potentially successful applicant in an S-style case and the general authority to act reasonably proposed by the Law Commission, discussed further below. Certainly, the court seems to understand that such a successful applicant would be able to make decisions regarding the incapacitated individual. The scope of such authority is not clear, however, since the supporting legislation proposed by the Law Commission is not in place. Could the decision-maker pledge the incapacitated person's credit, or be re-imbursed from the incapacitated person's assets, as would be the case under the Law Commission's proposals? Would the existence of a mechanism to appoint the individual as receiver through the Court of Protection preclude such a power? Or would reimbursement for the expenses of decisions taken by the decision-maker be viewed as necessarily collateral to the S-style court order? Is the decision-maker bound by any form of best interests test, and if so, what form? The parens patriae version no longer exists, the Law Commission version has not been legislated, and as the applicant is not necessarily a professional, there is no professional standard to fall back on. The S case is of course also markedly different from the general authority proposed by the Law Commission, which would not be dependent on any court process for its instigation. Back to text.

6. The main exception involves court applications, where publishing identifying information regarding subjects of court applications is prohibited: see Draft Bill at clause 54. Back to text.

7. In America, it is estimated that 75 health care staff will have access to a hospital record, leading at least one commentator to question the viability of medical confidentiality (see Siegler 1982). Back to text.

8. 1971 UN General Assembly 26th Session, Resolution 2856, para 6; quoted in Law Com 231 at 2.27. Regarding the desirability of guardianship more generally see LCCP 128 at para 1.2 and passim throughout the consultation papers and final report. Back to text.

9. Particularly early in their deliberations, the Law Commission was quite aware of the need for appropriate checks (see LCCP 119 at paras 3.12 (where the appropriateness of checks on the exercise of the existing enduring powers of attorney was raised), 4.21, 4.27, 5.26-7; and Law Com 231 at para 2.46). It will be queried below whether degree of safeguards proposed in the Commission's final report is adequate. Back to text.

10. The lack of such safeguards in Re F is noted by the Law Commission (LCCP 119, paras 2.33-35). The structure of Re F is similar to the structure of the proposed general authority to act, so the failure of the Commission to discuss or include due process safeguards in the latter context is surprising. This is particularly the case when, unlike doctors, other carers are likely to act without either legal or professional control or guidance, increasing the likelihood of erratic decision-making. Back to text.

11. This is an obvious advantage of the North American model of substitute decision-making, where one or more family members is selected to make the decisions. Back to text.

12. This possibility is recognized regarding the current situation in LCCP 119 at para 4.4. Absent court application, the proposals do not obviously resolve the situation. Back to text.

13. The Law Commission does raise concerns about conflict of interest in the context of nursing homes and other landlords serving as appointees to receive the residents' social security money (see LCCP 119, para 3.15; LCCP 128, paras 5.9-11; and Law Com 231, paras 4.26-7). The possibility of other conflicts of interest under the general duty to act is not raised, however (see LCCP 128, paras 5.19-23; Law Com 231, paras 4.6-11). Back to text.

14. The problem was identified in LCCP 119 at para 3.15. A system of accounting to the DSS was mooted in LCCP 128 at para 5.8, but rejected in the final report: Law Com 231 at paras 4.12-28. Back to text.

15. Refusals may not preclude the provision of basic care, defined as maintenance of bodily cleanliness, alleviation of severe pain, and provision of direct oral nutrition and hydration (Draft Bill, cl 9(7)(a) and 9(8)). These can be seen as giving precedence of rights to care over personal autonomy. Interestingly, insofar as the justification is made by the Commission, it is in terms of concerns over the effect of such refusals on staff and other patients (Law Com 231, para 79). This argument, with respect, ought to be viewed with some trepidation: see discussion above re the interests of doctors and the determination of priorities. Back to text.

16. Draft Bill, cl 16(1). The Commission also recommends that the attorney be required to act in the best interests of the donor, as defined by clause 3 of the Draft Bill (Law Com 231, para 7.10). This is presumably to be read as subject to any specific instructions under cl 16(1). Regarding circumvention of conditions in the power, see further below. Back to text.

17. The court does have the power to require reporting by the attorney (Draft Bill, cl 17(5)). Such reporting is not mandatory, however, and as there is no court process upon registration of the power, it is open to question how the need for reporting in specific instances would come to the attention of the court. Back to text.

18. The traditional supervisory body for the protection of those of marginal capacity has been the Lord Chancellor's Visitors. As this body was under review, the Commission makes no comment as to its continued role or usefulness. Back to text.

19. Draft Bill, cl 36(2). The definition of "vulnerable person" includes those in need of community care services by reason of mental or other disability, age or illness; and those unable to take care of themselves or to protect themselves from significant harm or serious exploitation. The terms are thus quite different from the functional, decision-making test in evidence in the remainder of the report. The class governed by the public law protection should thus be understood as different to, rather than wider or narrower than, persons lacking capacity. Back to text.

20. Draft Bill, cl 43. Interestingly, no power is expressly provided to assist with proceedings pursuant to the Draft Bill itself. Back to text.