Department for Constitutional Affairs -

Chapter 2: Background

Background information is provided on the range of conditions which can result in incapacity to make decisions. The Chapter also provides information on a number of relevant bodies and issues (which are listed below).

The changing face of health care and services for those without capacity
Medical advances
The Court of Protection and the Public Trust Office
The Official Solicitor
Social Security Appointees
The European Convention on Human Rights
Other projects

2.1. A wide range of conditions can result in incapacity to take decisions. In some cases, the capacity to take decisions is never attained (for example in the case of some people with a learning disability). In other cases, capacity is attained but is subsequently lost. This may occur for a number of reasons, including medical disorders and traumatic injury. The loss of capacity may be temporary for example during a toxic confusional state, which might result from an illness, or the use of drugs. In some cases, capacity may fluctuate; an example would be manic-depressive disorder where the person may have full capacity during periods when they are well, but may lose it during periods of illness. Finally, the loss of capacity may be permanent, as for example in some cases of dementia or the persistent vegetative state (PVS). Many of the proposals made by the Law Commission are primarily relevant to all those who are incapacitated, but the recommendations concerning serious medical procedures are likely to be primarily relevant to those whose period of incapacity is expected to be either prolonged or permanent. In responding to the questions raised in the Paper the different circumstances which may have resulted in incapacity should be borne in mind.

The changing face of health care and services for those without capacity

The population

2.2. The number of people over 85 will increase by over 30% in this decade. Advances in health care and in living standards mean that many people will now live longer. The incidence of incapacity increases as people get older. Dementia of all types affects over 5% of all those over the age of 65. In those over 80, the figure rises to 20%. The changes in population structure have consequently made the issue of decision making for those who become incapacitated increasingly important.

Medical advances

2.3. Advances in health care mean not only that people are likely to live longer, but also in circumstances and with illnesses and disabilities which previously would have led to the person's death.

2.4. Palliative care is a special type of care for people whose illness may no longer be curable. It focuses on controlling pain and other distressing symptoms as well as providing emotional and spiritual support. It enables patients to achieve the best possible quality of life during the final stages of their illness. The Government is committed to the provision of palliative care and money to provide this service is now built into health authority general allocations. Health authorities contract with their local providers, usually in the voluntary sector, for the services they require, based on the assessed health needs of their resident population.

2.5. A patient cannot demand a particular form of treatment - that is a matter for the clinical judgement of the doctor. He or she can, however, refuse. The Government fully supports the right of a patient to receive sufficient information about a proposed treatment to enable him or her to make a decision about whether or not to consent to it being carried out.

2.6. The Government has always emphasised that it does not accept that the individual's right to determine the treatment he or she is prepared to refuse or accept extends to any action deliberately taken to end the patient's life. The Government fully supports the view of the House of Lords Select Committee on Medical Ethics that euthanasia is unacceptable and should remain an offence of murder.

The Court of Protection and the Public Trust Office (1)

2.7. The Court of Protection exists to safeguard the interests of anyone who is 'incapable by reason of mental disorder of managing and administering his property and affairs'. Anyone found on medical evidence to meet these criteria is known as 'a patient'. The Court's duties are normally carried out by appointing a receiver for a patient. The receiver acts as a statutory agent whose powers are limited and specified in the order appointing him and in any further directions or authorities issued by the Court or the Public Trust Office. The Mental Health Act 1983 gives the Court power to authorise virtually any transaction on behalf of a patient and to do whatever is necessary or expedient for the maintenance or benefit of the patient, his family and dependants. The Court's administrative functions are now carried out by the Public Trust Office (2).

2.8. An alternative way of administering the financial affairs of mentally incapacitated people was provided by the Enduring Powers of Attorney Act 1985. This Act made it possible for certain powers of attorney granted in a special form to endure beyond the period of capacity.(3) Such agreements must be registered with the Court of Protection when the attorney has reason to believe that the donor is or is becoming mentally incapable. By the end of 1996, nearly 34,000 of these agreements had been registered at the Court of Protection. Many others will have been prepared but not registered.

The Official Solicitor

2.9. A central element of the Official Solicitor's duties is safeguarding the welfare, property and status of persons under a legal disability or at a disadvantage before the law. He deals with some 950 new cases of proceedings involving adults under Mental incapacity each year. Many of these relate to a wide spread of litigation of all categories, mainly affecting financial rights or liabilities, from possession actions in the county courts to heavy personal injuries litigation in the High Court, but two increasingly important areas of work are declaratory proceedings in the High Court and medical treatment decisions. The former include cases where the issues centre on where a person under disability is to live and with whom he or she is to have contact. The latter require him to act as guardian ad litem or amicus curiae in respect of treatment such as sterilisation, abortion, emergency caesareans and end-of-life decisions such as the withdrawal of nutrition and hydration from a patient in a persistent vegetative state.

2.10. The judiciary and staff of the Court of Protection, the Public Trust Office and the Official Solicitor's Office have built up a great expertise in assisting those who have limited or no capacity to make decisions for themselves. Although, strictly speaking, the current jurisdiction is limited to financial matters, this can be a hard dividing line to draw in practice.

Social Security Appointees

2.11. Under existing legislation, the Secretary of State for Social Security may appoint a person over 18 years of age to act on behalf of a claimant who, because of a Mental incapacity, is unable to manage his or her own affairs. As well as individuals, the appointee can be an organisation such as a local authority or a health authority.

2.12. Appointee action is normally instigated by an application from the prospective appointee. An officer from the Benefits Agency will then interview the incapacitated person to confirm that they are unable to manage their own affairs. If there is any doubt about the person's capabilities, medical evidence should be obtained. The officer will also interview the applicant to explain the responsibilities of an appointee and confirm that they are suitable to act.

2.13. Once a person has been appointed to act the appointment is open-ended. At present, the Department of Social Security does not routinely monitor appointee arrangements. However, the Secretary of State can revoke an appointeeship at any time if it is brought to her attention that the appointee is not complying with the conditions on which it was granted.

2.14. Although the Law Commission made no firm recommendations relating to Social Security Appointees, and the subject is not considered in detail as part of this consultation exercise, the Department of Social Security would be interested in receiving any feedback on how well the current arrangements work, and how the system could be improved.

The European Convention on Human Rights

2.15. The Government has considered whether or not the Law Commission's recommendations are likely to comply with the European Convention on Human Rights. The policy aims for the Commission's project on decision-making on behalf of mentally incapacitated adults were:

that people are enabled and encouraged to take for themselves those decisions which they are able to take;

that where it is necessary in their own interests or for the protection of others that someone else should take those 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; and

that the proper safeguards should be provided against exploitation and neglect, and against physical, sexual or psychological abuse.

2.16. The Government cannot predict the nature and outcome of all types of claims of violation of the Convention which may arise if the Law Commission's recommendations are enacted. Nevertheless, the Government considers that by adopting a new decision-making process for those who do not have capacity to make the decision, which pays particular regard to the person without capacity's right to self determination (where possible), the person's human rights should be protected. However, the Government would like to know of any concerns which respondents may have regarding the Law Commission's proposals in so far as the ECHR is concerned.

Q4. Do respondents have any concerns regarding the Law Commission's recommendations in so far as the ECHR is concerned?

Other projects

House of Lords Select Committee on Medical Ethics

2.17. The Government has also been greatly assisted by the report of the House of Lords Select Committee on Medical Ethics. The Select Committee was appointed, under the chairmanship of Lord Walton of Detchant, to consider the ethical, legal and clinical implications of a person's right to withhold consent to life-giving treatment, and the position of persons who are no longer able to give or withhold consent; and to consider whether and in what circumstances actions that have as their intention or a likely consequence the shortening of another person's life may be justified on the grounds that they accord with that person's wishes or with that person's best interests; and in the light of all the foregoing considerations to pay regard to the likely effects of changes in law or medical practice on society as a whole.

2.18. The Select Committee reported to Parliament in February 1994 (4) and the report was debated in the House of Lords in May 1994 (5). The report overlaps with, and in many areas complements, the work of the Law Commission. The Government has drawn on evidence submitted to the Select Committee in preparing this Consultation Paper.

British Medical Association (BMA) Code of Practice

2.19. In response to a recommendation from the House of Lords Select Committee on Medical Ethics, the British Medical Association set up a working group with representatives of other health professionals to produce a Code of Practice on Advance Statements for health professionals. This was published on 5 April 1995. The BMA also collaborated with the Patients Association to produce a guide for patients concerning advance statements, which was published in 1996.

Council of Europe Convention on Human Rights and Biomedicine

2.20. The Council of Europe Convention on Human Rights and Biomedicine was opened for signature in April 1997. The Convention gives a central place to the principle of consent and the importance of protecting those without capacity to consent. The Convention provides that with strict safeguards, patients not able to consent may donate regenerative tissue such as bone marrow and participate in research. The Convention only has legal force if ratified by a Member State, and it permits Member States to set higher standards of protection than required by the Convention if they wish.

2.21. The Convention contains a wide range of complex ethical and legal issues which the Government is considering carefully before reaching a decision on signature or ratification.

Hague Convention

2.22. The Hague Conference on Private International Law is in the process of negotiating a draft Convention on the protection of adults. This does not deal with matters of substantive law, but with arrangements between Contracting States for determining jurisdiction, and with administrative and co-operative arrangements for dealing with matters that arise in relation to the protection of adults. The text of a preliminary draft Convention was agreed in September 1997, and this will be the subject of further negotiation. The Convention which results will only have legal force if ratified by a Member State.

Consultation on the removal, storage and use of gametes

2.23. In September this year, the Government issued a separate Consultation Paper concerning the removal, storage and use of gametes without consent. These matters will therefore not be taken forward separately as part of the consideration of this Green Paper. Those wishing to address these issues should contact Michael Evans at the Department of Health (Room 423, Wellington House, 133-155 Waterloo Road, London SE1 8UG). It should be noted, however, that responses to that consultation exercise are requested by 31 December 1997.

Offences Against the Person Act 1861

2.24. The Government will shortly be consulting on its proposals to reform the Offences Against the Person Act 1861 based upon the recommendations of the Law Commission in "Offences Against the Person and General Principles" (6). This consultation paper will seek views on some of the difficult issues around the technical legal changes proposed by the Law Commission and will include a draft Bill.

1 Annex D contains further information about the Court of Protection, the Public Trust Office and the Official Solicitor.

2 The relationship between the Public Trust Office and the Court of Protection evolved during the 1980s and is often imperfectly understood. This sometimes causes confusion about the respective roles of the two bodies. In 1986, the bureaucracy of the Court was dismantled with the large majority of its staff being transferred to the Public Trust Office. The Court itself became a purely judicial body consisting of the Master and two Assistant Masters with a small support staff, exercising the limited judicial functions now defined in rule 6 of the Court of Protection Rules 1994 and powers under the Enduring Powers of Attorney Act 1985. At any one time, the number of cases handled by the Court (which has 10 staff compared to the Public Trust Office's 580) is very small.

3 Under the existing law, a person (the donor) with capacity can give an ordinary power of attorney to another person (the attorney) which gives the donee authority to act on the donor's behalf in relation to the donor's property. The power of attorney can be general and relate to all the donor's property or specific and, for example, give the donee authority to act only in relation to one property. The donor of the power cannot give the donee power to do anything in relation to the property which he himself could not do. The main disadvantage of ordinary powers of attorney for the purpose of managing the affairs of vulnerable people is that they terminate on incapacity.

4 Report of the Select Committee on Medical Ethics (1993-94) HL 21-I

5 Hansard (HL) 9 May 1994, vol. 554, col. 1344.

6 Law Com 218

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