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Where now on Mental Incapacity?

Alan Parkin

Lecturer in Law
The Law School
University of Hull

Copyright © 1996 Alan Parkin.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.


Summary

The investigation carried out by the Law Commission into mental incapacity and ways in which the law in relation to it might be regularised has been exhaustive and thorough. The decision not to proceed with the resulting draft bill in its present form leaves matters, for the moment, in limbo. This comment sets out the problem the Commission sought to address, its reasoning and conclusions. The constituency affected is large but its members are easily overlooked. Is it the case that the long awaited regularisation of their legal position is to be further delayed because of fears, which may be groundless, that the recommendations make euthanasia more likely? Will doubts about some aspects of the report prevent or unduly delay straightforward and non-controversial reforms which will affect the lives of many.


Contents

Introduction
The Initial Problem
Final Recommendations
Defining incapacity and deciding best interests
A Statutory Authority to act in the patient's best interests
Limitations on Treatment
A revised Court of Protection
Conclusion

Bibliography


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)

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.

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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.

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).

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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.

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 people should be enabled and encouraged to take for themselves those decision which they are able to take;

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:

"define capacity;

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.

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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)).

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:

"In deciding what is in a person's best interests regard should be had to:-

(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).

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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".

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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.

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).

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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).

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.

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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.

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.

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Bibliography

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.


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