Chapter 1: Introduction
- The opening Chapter briefly outlines the history of the Law Commission's
work on Mental incapacity. It also provides an outline of the approach
the Government is taking in this consultation exercise, and the scope
of the paper. Consideration is also given to the question of resources.
- The work of the Law Commission
The Government's approach
Resources
Scope of consultation
Structure of the paper
- 1.1. The Government believes there is a clear need for reform of the
law in order to improve and clarify the decision-making process for those
who are unable to make decisions for themselves, or those who cannot communicate
their decisions. These are some of the most vulnerable people in our society.
The law in this area has developed in piecemeal fashion, and does not
always offer sufficient protection either for mentally incapacitated adults,
or for those who look after them.
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- 1.2. This Consultation Paper seeks views on a possible framework for
providing that protection, and for providing an organised framework of
law to manage the welfare and affairs of mentally incapacitated adults.
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- 1.3. The Government's consideration of this area is based on the work
of the Law Commission, and this Consultation Paper follows closely the
recommendations included in their report Mental incapacity(1).
That report, which offers a coherent and broad scheme for the reform of
the law in this area, was the culmination of five years work and four
other Consultation Papers:
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- Mentally Incapacitated Adults and Decision-Making - An Overview (2)
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- Mentally Incapacitated Adults and Decision-Making: A New Jurisdiction
(3)
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- Mentally Incapacitated Adults and Decision-Making: Medical Treatment
and Research (4)
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- Mentally Incapacitated and Other Vulnerable Adults: Public Law Protection
(5)
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The Government's approach
- 1.4. The Government sees considerable merit in the work of the Law Commission
on these issues, and in a number of areas the Government is minded to
accept the principles underlying the Law Commission's recommendations.
Those areas include the report's proposals on: the definition of
incapacity; a framework for carers which would remove the present
uncertainty; more extensive powers for the Court
of Protection so that decisions can be made regarding a person's health
care, personal welfare and finance within the same jurisdiction; and
powers of attorney for the care person.
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- 1.5. Consultation in these areas is aimed at ensuring that the detailed
recommendations made by the Law Commission are considered appropriate
and practical. On a number of issues, the Government wishes to ensure
there are sufficient safeguards in place for the protection not only of
patients, but also those charged with their care.
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- 1.6. There are areas of the Law Commission's final report which raise
issues of particular moral and ethical sensitivity, and on which the Government
recognises that people hold strong personal views. These areas include:
advance statements about
health care; and non-therapeutic research;
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- 1.7. The Government recognises that advance
refusals of treatment are currently binding at common law and supports
the patient's right to decide whether to accept treatment and to make
an advance directive expressing
their refusal of a course of action or a particular treatment. Bearing
in mind the strong personal views held on these subjects, the Government
believes further full public consultation is necessary before considering
whether to put this on a statutory footing to ensure that those views
can be fully expressed. The sections of this Green Paper which deal with
these issues ask general questions about whether or not the Government
should legislate in this area, and, if so, what should be the objectives
of that legislation. In each case, in addition to these broad questions,
the Government seeks detailed views on the Law Commission's proposals.
This should not be taken as prejudicial to the outcome of consultation
on the broader questions about whether these are areas that should be
taken forward. Rather, the Government wants to ensure that, if these areas
are considered appropriate for legislation, the proposals for that legislation
have had the benefit of full public scrutiny.
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- Euthanasia
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- 1.8. There is a widespread misconception which links advance statements
and euthanasia. The law currently makes a clear distinction between advance
statements, which are lawful, and which allow a patient to indicate in
advance of any subsequent incapacity the sort of treatment he or she would,
or would not, consent to, and euthanasia, which is a deliberate intervention
with the express aim of ending life. Euthanasia is illegal. An advance
statement cannot direct a doctor to do anything which is illegal. The
Government has no plans to change the law in this respect. The Government
therefore shares the view of the House of Lords Select Committee on Medical
Ethics (6) that there should be no move toward
the legalisation of euthanasia. The Law Commission made no recommendations
on euthanasia in their report on Mental incapacity, and this Consultation
Paper will not be seeking views on this subject.
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Resources
- 1.9. There can be little doubt that, if a scheme of the type proposed
by the Law Commission were implemented, there would be additional resources
required, and additional cost. In particular, there would be additional
operational costs for the Public Trust Office and the Court of Protection,
the Official Solicitor, the National
Health Service, social services departments, and the magistrates' courts,
with financial costs also to the legal aid fund. In line with the Government's
determination to contain public spending, and not to increase the tax
burden, it would be necessary to recover a substantial contribution to
added costs from actual or potential beneficiaries of the new procedures.
The Government would therefore welcome views on the likely resource implications,
and their affordability, weighed against the merit of what must be issues
of singular moral and ethical importance.
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- Q1a. What resource implications do those working in this area envisage
would result for them and for other parties from the proposals?
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- Q1b. Would the likely benefits render the costs incurred worthwhile?
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- Q1c. How should these costs be met?
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Scope of consultation
- 1.10. This Paper considers the scope for reform of the law for managing
the affairs of those unable to make decisions for themselves in England
and Wales. The Paper does not relate to Northern Ireland, nor Scotland.
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- Developments in Scotland
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- 1.11. The Scottish Law Commission has also considered the law in this
area, and it published its report on Incapable Adults in September 1995
(7). The previous Government issued a Consultation
Paper (8) in February 1997. Comments were
requested by the end of April and over 160 were received.
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- 1.12. Although the underlying principles of the Scottish Law Commission's
approach are broadly similar to the stance taken in England and Wales,
there are some differences. For example, in Scotland it is proposed that
there is to be a certification process for powers of attorney intended
to continue on the incapacity of the donor, that requires a solicitor
to confirm that the donor understands the arrangement and is not acting
under duress. The proposals for intromissions with an incapable adult's
bank account are different in Scotland, as is the proposal that managers
of residential establishments may be authorised to manage funds of their
incapable residents up to a prescribed limit.
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- 1.13. The Government is considering its policy for Scotland in the light
of the responses to the consultation exercise. The medical aspects of
the two Law Commissions' reports are sufficiently similar that careful
consideration will be required of taking a common GB-wide approach in
this area. Given the different existing framework of statutory and common
law in Scotland, other provisions can be expected to vary, even though
the underlying principles are shared.
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- Q2. Should a common GB-wide approach be given to the health matters
covered by the Law Commission and Scottish Law Commission?
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- Application to adults only
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- 1.14. The Law Commission considered whether their proposals should apply
only to those aged 18 or over, or whether they should include those aged
16 and 17. Respondents to their consultation exercise indicated that it
is common for those aged 16 and 17 to be included in arrangements made
for adults, rather than arrangements made for younger children. It was
also noted that it would be wasteful to have to initiate two separate
sets of legal proceedings for those who are close to the age of majority.
There was general support, therefore, for the proposals contained within
the Law Commission's Report applying to those aged 16 or over. Some of
the proposals do, however, apply only to those aged 18 or over, and these
are identified in this Paper. The Government is minded to accept this
recommendation, subject to the views of consultees.
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- Q3. Should the provisions recommended by the Law Commission apply
only to those aged 16 or over?
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- Inter-relationship with the criminal law
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- 1.15. This Paper does not analyse in detail the interrelationship between
the Law Commission's recommended statutory decision-making processes on
behalf of mentally incapacitated adults, and the criminal law. Once responses
to the Green Paper have been considered and the issues have been taken
further forward, detailed consideration will be given to the interrelationship
with the criminal law. The Government's conclusions will be set out as
part of a more general policy statement at that stage. There will, of
course, be no proposals to change the law relating to euthanasia.
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Structure of the paper
- 1.16. This Green Paper has been written so as to be free-standing, although
it has been structured to follow the Law Commission's Report Mental incapacity.
Respondents may wish to refer to the Law Commission's Report for a fuller
analysis of their recommendations. (The Report is available from HMSO,
ISBN 0-10-218995-1.) The Law Commission's Report contains a comprehensive
analysis of the current law in this area. This Paper does not provide
a further analysis of the current law.
- 1.17. The remainder of this Paper is therefore organised as follows.
A background chapter (chapter 2) precedes discussion
on the three key principles underlying work in this area: the definitions
of "capacity", "best interests" and the "general
authority to act reasonably" (chapter 3). Chapters
4and 5consider the issues
of advance statements and the independent supervision of medical and research
procedures. Chapter 6 looks at the recommendations
on a Continuing Powers of Attorney (CPA) scheme. Chapter
7 considers the proposals for a unified system of judicial decision-making
to cover financial, personal welfare and health care matters. Chapter
8 seeks views on the proposed provision of public law protection for
people at risk (not just those who suffer from a Mental incapacity). Chapter
9 considers the proposals for a new judicial forum.
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1 Law Com 231, published in February 1995.
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- 2 Consultation Paper No 119, published in
April 1991.
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- 3 Consultation Paper No 128, published in
February 1993.
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- 4 Consultation Paper No 129, published in
April 1993.
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- 5 Consultation Paper No 130, published in
May 1993.
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- 6 See paragraphs 2.17-2.18, below
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- 7 Scot Law Com No 151.
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- 8 Managing the Finances and Welfare of Incapable
Adults, The Stationery Office, February 1997.
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