Mental Incapacity (Summary of Recommendations) [1995] EWLC 231 (15 January 1995)

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A summary of recommendations

This paper summarises the main recommendations for reform contained in the Law Commissions Report on Mental Incapacity (see footnote). This long awaited report is the culmination of a five year study by the Commission into the adequacy of the law and other procedures for decision-making on behalf of persons without capacity. Particular attention is drawn in the report to the continuing increase in the proportion of very old people in the population; the fact that many people who previously lived in an institutional setting are now living in the community where greatly increased opportunities for substitute decision-making arise; how advances in medical science now enable people to live longer than was previously the case often with their mental capacity impaired. These demographic, social and medical changes have taken place at the same time as a recognition by the courts that there is now no person or court in England and Wales who can lawfully take personal welfare or medical decisions on behalf of adults who lack capacity to take decisions for themselves. The Commissions study has made it abundantly clear that there is a pressing need for reform.

The Commission recommends that there should be a single comprehensive piece of legislation to make new provision for people who lack mental capacity. This should provide a coherent statutory scheme to which recourse can be had when any decision (whether personal, medical or financial) needs to be made for a person aged 16 or over who lacks capacity.

Two fundamental concepts are central to the integrated decision-making jurisdiction which the Commission recommends; capacity and best interests.

The Commission recommends a new statutory definition of what it means to be "without capacity" to make a particular decision. A person should be regarded as unable to make a decision if at the material time he or she is:

(1) unable by reason of mental disability to make a decision on the matter in question, or

(2) unable to communicate a decision on that matter because he or she is unconscious or for any other reason.

An "inability to make a decision" means "(1) and inability to understand or retain the information relevant to the decision, including information about the reasonably foreseeable consequences of deciding one way or another or of failing to make the decision, or (2) an inability to make a decision based on that information."

The term "mental disability" means "a disability or disorder of the mind or brain, whether permanent or temporary, which results in an impairment or disturbance of mental functioning".

The Commission also recommends a new general rule that anything done for a person who is without capacity should be done in that persons "best interests". The expression "best interests" is not defined in the draft Bill appended to the report, but the Commission lists four factors which should be considered whenever something has to be done or a decision made on behalf of a person without capacity. These factors are:

One of the uncertainties of the present law is what action may lawfully be taken by someone caring for a person without capacity or what medical treatment a doctor can give to such a person.

The Commission recommends that it should be lawful to do anything for the personal welfare or health care of a person who is, or is reasonably believed to be without capacity in relation to the matter in question if it is in all the circumstances reasonable for it to be done by the person who does it and it is in the best interests of that person.

This general authority to act reasonably will extend to matters concerning the personal welfare and health care of a person who is or is reasonably believed to be without capacity. There are certain decisions, however, which can only ever be taken by the person acting for himself or herself, for example consenting to marriage, consenting to sexual relations, voting at an election and so on. The draft Bill appended to the report makes provision for this type of decision.

The Commission also recommends certain other restrictions. The general authority should not:

The draft Bill accompanying the report creates a number of ways in which a person may acquire powers over another person. The Commission therefore recommends that it should be a criminal offence for anyone to ill-treat or wilfully neglect a person in relation to whom he or she has powers by virtue of this new legislation.

Sometimes reasonable action taken for the personal welfare or health care of a person without capacity will involve expenditure. In those cases it should be lawful for the person acting to pledge the others credit or apply that persons money to meet the expenditure. If the person taking action incurs expenditure then he or she should be entitled to be reimbursed or otherwise indemnified from the money of the person for whom the action was taken.

There are some existing statutory and non-statutory schemes which permit funds to which a person without capacity is entitled to be released to a third party to be used for the benefit of the person without capacity. The Commission recommends that there should be a new statutory scheme enabling certain types of financial organisations to make payments, which would otherwise be made to the person without capacity, to a person acting on his or her behalf. Such a scheme should be subject to financial and time limits.

One of the principles on which the Commission has proceeded is that people should be encouraged and enabled to take those decisions which they are in fact able to take. This principle embraces anticipatory decision-making by the person while competent in order to make arrangements for his or her future incapacity.

In a series of recent cases concerning medical treatment it has been established that a competent adult has the right to refuse treatment, and that a doctor would commit the crime and tort of battery if he or she proceeded to treat in the absence of consent. This case law also established that a competent persons refusal of treatment may also extend to treatment which it is proposed be given to him or her when lacking capacity to give or refuse consent. The precise scope of this right to refuse treatment in advance is, however, unclear and the Commission considers that specific legislative provision should cover cases where a person makes an anticipatory refusal of treatment which is intended to remain in effect even when the maker no longer has the capacity to review the decision.

(1) An advance refusal should be defined as a refusal made by a person aged 18 or over with the necessary capacity of any medical, surgical or dental treatment or other procedure, and intended to have effect at any subsequent time when he or she may be without capacity to give or refuse consent;

(2) In the absence of any indication to the contrary is shall be presumed that an advance refusal of treatment does not apply in circumstances where those having the care of the person concerned consider that the refusal (a) endangers that persons life or (b) if that person is a woman who is pregnant, the life of the foetus;

(3) No person should incur liability (a) for withholding any treatment or procedure if there are reasonable grounds for believing that an advance refusal of treatment applies; or (b) for carrying out any treatment or procedure to which an advance refusal applies unless he or she knows or has reasonable grounds for believing that an advance refusal applies;

(4) An advance refusal of treatment should not preclude the provision of "basic care", namely care to maintain bodily cleanliness and to alleviate severe pain, as well as the provision of direct oral nutrition and hydration;

(5) An advance refusal should not preclude the taking of any action necessary to prevent the death of the maker or a serious deterioration in his or her condition pending a decision of the court on the validity or applicability of an advance refusal.

The Commissions recommendations also deal with those advance refusals which are in writing, the withdrawal of an advance refusal and the offence of destroying or concealing an advance refusal.

There are certain treatments and procedures which it should not be lawful for a person acting reasonably and in the best interests of the person lacking capacity to carry out without some further independent supervision involved.

The Commission recommends that the following treatments or procedures should require the approval of the court or the consent of an attorney or manager:

(1) any treatment or procedure intended or reasonably likely to render the person permanently infertile unless it is to treat a disease of the reproductive organs or relieve existing detrimental effects of menstruation;

(2) any treatment or procedure designed to facilitate the donation of non-regenerative tissue or bone marrow;

The Commission recommends that the following treatments or procedures should require the involvement of a second doctor specially appointed for this purpose or the consent of an attorney or manager:

(1) any treatment or procedure intended or reasonably likely to render the person concerned permanently infertile if it is for relieving the existing detrimental effects of menstruation;

(3) the treatments for mental disorder described in section 58(1) of the Mental Health Act 1983, namely electro-convulsive therapy and the administration of psychotropic drugs for a period exceeding three months;

Not all treatments or procedures can be said to be in the best interests of the person without capacity for whom they are proposed. Yet many of these treatments would be regarded as ethically justifiable, and the law should make some provision for them. The most significant treatment falling into this category is the withdrawal of artificial feeding from patients such as those in a persistent vegetative state.

The Commission recommends that the withdrawal of artificial nutrition and hydration from a person who is unconscious, has no activity in the cerebral cortex, and no prospect of recovery should be lawful if certain statutory requirements are met. These statutory requirements should be:

The Secretary of State should have power by order to specify other treatments in this category which should be lawful provided one of the above three statutory requirements are met.

The participation of persons without capacity in non-therapeutic research is likely to be unlawful under the present law unless it can be justified under the doctrine of necessity. This would rarely, if ever, be the case. However, research involving such persons is regularly carried out and the balance of expert opinion suggests that there is an ethical case for the participation in such research projects of people who lack capacity to consent to their participation provided proper safeguards are in place.

The Commission recommends that research which is unlikely to benefit a participant, or whose benefit is likely to be long delayed, should be lawful in relation to a person without capacity to consent if:

(1) the research is into an incapacitating condition with which the person concerned is or may be affected, and

The Commission recommends the establishment of a new Committee, to be known as the Mental Incapacity Research Committee, to approve all research proposals which contemplate the involvement of persons without capacity. The approval of this Committee should be a pre-requisite to the lawfulness of any non-therapeutic research involving persons without capacity.

(1) that it is desirable to provide knowledge of the causes or treatment of, or of the care of people affected by, the incapacitating condition with which any participant is or may be affected;

(2) that the object of the research cannot be effectively achieved without the participation of persons who are or may be without capacity to consent; and

(3) that the research will not expose a participant to more than negligible risk, will not be unduly invasive or restrictive of a participant and will not unduly interfere with a participants freedom of action or privacy.

In addition to the approval of the Committee, non-therapeutic research in relation to a person without capacity should require either (a) court approval, (b) the consent of an attorney or manager, (c) a certificate from a doctor not involved in the research that the participation of the person is applicable, or (d) designation of the research as not involving direct contract with the person without capacity.

The Commissions prime policy aim is to enable and encourage people to take for themselves those decisions which they are able to take, and this should cover anticipatory decision-making by people who, knowing or fearing that their decision-making faculties may fail, wish to make plans for what is to happen to them should they lose capacity. The Enduring Powers of Attorney Act 1985 permits a person (a donor) to appoint someone (an attorney) to take decisions about his or her property and affairs. This scheme does not, however, permit the donor to appoint someone to take decisions about his personal welfare or health care.

The Commission recommends the introduction of a new form of power of attorney to be called a "Continuing Power of Attorney" (CPA). A CPA may confer general authority or be subject to such restrictions or conditions as the donor may wish to impose.

The donee of a CPA should have authority to make and implement decisions on behalf of the donor which the donor lacks capacity to make. Any attorney acting under a CPA should act in the best interests of the donor, having regard to the four best interests factors listed above (see para 1.5 above).

As with persons acting under the general authority, attorneys should be bound by the general restriction against acts of confinement or coercion. The Commission also recommends that attorneys should be expressly authorised in the power appointing them to consent to any of the treatments or procedures which it recommends should require some sort of independent supervision (either by the court, a second opinion doctor or in relation to non-therapeutic research, the new Mental Incapacity Research Committee).

The Commission recommends a new registration procedure for CPAs. Under its proposals a donee of a CPA would have no authority to act unless the power was registered. A donor who has capacity to do so would be able to object to registration. The registration authority it proposes would be a purely administrative body. Any disputes about the validity of the power would be resolved by the court.

Many of the courts powers over CPAs will mirror those which the 1985 Act conferred in relation to EPAs. However, the Commission recommends that the court should have certain new powers in relation to CPAs. These are:

(1) a dispensing power to declare that a document not in the prescribed form shall be treated as if it were in that form if the court is satisfied that the persons executing it intended to create a CPA;

(2) a power to appoint a donee in substitution for or in addition to the donee mentioned in a CPA unless a contrary intention is expressed in the document;

(3) a power to modify or extend the scope of the donees power to act subject to a contrary intention expressed in the document; and

(4) power to direct that a purported CPA should not be registered or to revoke a CPA where the donee or intended donee has behaved, is behaving or proposes to behave in a way that contravenes or would contravene his or her authority, or is not or would not be in the donors best interests.

The courts powers will only be exercisable where the donor is without capacity to act.

Much of the detailed statutory provisions concerning this new type of power of attorney, for example relating to the use of prescribed forms, requirements affecting the donor and donee, and the termination and revocation of CPAs are similar to those contained in the Enduring Powers of Attorney Act 1985.

The Commission recommends that no new EPAs should be created and that the 1985 Act should be repealed. The draft Bill makes all necessary transitional provision.

The Commission also recommends that it should be possible for the donor and donee of an EPA to convert their document into a CPA.

The Commission recommends an integrated statutory jurisdiction for the making of personal welfare decisions, health care decisions and financial decisions on behalf of persons without capacity. Where specific problems or disputes arise concerning a person without capacity the Commission recommends that a single court should be available to resolve the issue. This court will also have the role of approving certain serious medical treatments.

The court based jurisdiction the Commission recommends will be able to make declarations, "one-off" orders or, where appropriate, to appoint a manager with substitute decision-making powers in relating to a person without capacity. The making of an order is to be preferred to the appointment of a manager. In its decisions the court will be required to act in the best interests of the person without capacity having regard to the four statutory factors.

(1) an order making a decision on behalf of a person who lacks capacity to make that decision, or

(2) an order appointing a manager to be responsible for making decisions on behalf of a person without capacity.

The courts powers will extend to matters to the personal welfare, health care and property and affairs of persons without capacity. The draft Bill appended to the report lists the most common types of decisions which are likely to be made by the court.

Managers appointed by the court will only have such powers as are granted by the court, and no appointment should last for more than 5 years. Any manager appointed by the court should act in the best interests of the person without capacity.

The Commission recommends that the Public Trustee should exercise a supervisory role in relation to managers appointed by the court. In addition to this function, the court may require a manager to give to the Public Trustee such security as the court thinks fit, and to submit to the Public Trustee such reports at such intervals as the court determines. The Public Trustee may also be appointed as a Manager.

Such provision as currently exists concerning decision-making on behalf of persons without capacity is exercised by the Office of the Court of Protection in relation to property and affairs, and by the declamatory jurisdiction of the High Court in relation to personal welfare and medical treatment. In the report the Commission recommends that any decision concerning a person without capacity should be resolved in a single forum which cannot consider the persons whole circumstances before deciding what action, if any, to take.

The Commission recommends the creation of a new Court of Protection to make decisions or resolve disputes about the personal welfare, finances and health care of persons without capacity. The court should have central registry in London but there should be regional hearing centres if necessary.

This new court will be made up of nominated district and circuit judges and nominated judges of the Chancery and Family divisions of the High Court. The availability of a range of judicial personnel should mean that cases, depending on their subject matter or complexity, are heard at the appropriate level by a judge with the appropriate experience and expertise. One of the nominated judges should be designated as the Senior Judge.

No piece of legislation dealing with the range of issues with which the Commissions Report on Mental Incapacity is concerned could hope to include all the information which those who will have to use the legislation would wish. For this reason the Commission recommends that the Secretary of State should prepare and from time to revise a code or codes of practice to accompany the introduction of this legislation. In particular the code or codes prepared by the Secretary of State should provide:

(1) guidance for persons assessing whether a person is or is not without capacity to make a particular decision;

Before preparing a code or revising a code in relation to this legislation the Secretary of State shall consult with such people as appropriate.

In a separate Part of the report the Commission analyses the existing law to protect vulnerable people who are at risk or harm. The existing law is outdated and ineffective while allowing peoples civil rights to be ignored without proper jurisdiction.

For the purposes of the report the Commission recommends that a "vulnerable person at risk" means "any person aged 16 or over who (1) is or may be in need of community care services by reason of mental or other disability, age or illness and who (2) is or may be unable to take care of himself or herself, or unable to protect himself or herself against significant harm or serious exploitation".

The Commission recommends that local social services departments should be under a duty to investigate where they have reason to believe that a vulnerable person is suffering or likely to suffer significant harm or serious exploitation.

Where the local social services department are being prevented from carrying out an investigation the Commission recommends that the following powers should be available to "authorised officers":

The Commission also recommends that it should be an offence to obstruct an "authorised officer" in the exercise of his powers or to obstruct any person acting under an "assessment order" or "temporary protection order".

Some vulnerable people choose, in the exercise of their free will, to refuse services which others might think would benefit them. Such people may also choose to remain in situations which appear to others to be harmful. Where a person is merely vulnerable, that is not lacking capacity and not mentally disabled, that person should be able to refuse community care or other protective services. The Commission, therefore, recommends that each of the new powers set out above should be qualified by the proviso to the effect that they may not be exercised where it is known or believed that the person concerned objects, unless that person is believed to suffer from mental disability.

The Commission recommends that magistrates courts and single justices of the peace should be able to grant warrants or make orders for the protection of vulnerable people. The new Court of Protection will also have these powers but the Commission would expect it to exercise this jurisdiction rarely.

Footnote 1: (1995) Law Com No 231 - Report on Mental Incapacity, available from The Stationery Office: £21.85 - ISBN 0 10 218995 1.

The Law Commission

THE LAW COMMISSION

MENTAL INCAPACITY

A summary of recommendations

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