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Chapter 3: Three Key Principles: Capacity, Best Interests, and the General Authority to Act Reasonably

This Chapter looks at the three key principles which underpin the Law Commission's proposals on Mental incapacity. The Government accepts the principles behind much of the Law Commission's thinking in these areas. Respondents are asked for their views on the detail and practicality of a number of the Law Commission's specific recommendations.

 

Background
The test of capacity
Best interests
General authority to act reasonably

 

Background

3.1. This chapter focuses on the concepts of capacity, best interests and the general authority to act reasonably, which underpin the Law Commission's proposals. The Law Commission's suggested definitions for these concepts received broad support on consultation.

 

3.2. The Government supports the principles behind the Law Commission's proposals in this area, but seeks views in this chapter, on whether the proposed definitions are practical and workable.

 

The test of capacity

3.3. The Law Commission recommended a new statutory definition of incapacity(1).

 

 

Presumption against lack of capacity

 

3.4. The Law Commission recommended that there be a presumption against lack of capacity. This conforms with current principles of common law. It also supports the general principle that there should be minimal intervention in the affairs of individuals unless there is a demonstrable need to do so. This is a common sense approach, and the Government notes the wide support the Law Commission received for this on consultation.

 

3.5. The Government accepts this recommendation in principle.

 

 

Determining whether an individual lacks capacity

 

3.6. The Law Commission considered a number of possible approaches to the definition of capacity, but favoured the "functional approach", which is currently the main method used in common law. This received overwhelming support on consultation.

 

3.7. This approach focuses on the decision itself and the capability of the person concerned to understand at the time it is made the nature of the decision required and its implications. This approach is thus very specific and avoids generalisations which may involve unnecessary intrusion into the affairs of the individual. For example, a person may be able to decide that they want to have contact with a particular relative, but may not be able to understand the nature of a particular financial contract on which a decision is needed. The functional approach would indicate that the first decision is one for which the person had capacity, whereas the second decision is one for which s/he did not. The approach thus allows individuals to have the maximum decision-making powers possible. Restrictions would be dependent on the nature and complexity of the decision in hand and would not exclude the person from making decisions within their competence.

 

3.8. The Government accepts this recommendation.

 

A diagnostic threshold

 

3.9. The Law Commission consulted on the possibility of linking the test of capacity and the concept of "mental disorder" as defined in the Mental Health Act 1983. This possibility was rejected, the Law Commission considering that:

 

this was insufficiently broad to be able to deal with all possible scenarios; and

 

there would be few, outside those specialising in mental health, who understood exactly what this

meant.

 

3.10. The Law Commission thus recommended that the expression "mental disability" (2) be used (except in cases where the person is unable to communicate) and should mean 'any disability or disorder of the mind or brain, whether permanent or temporary, which results in an impairment or disturbance of mental functioning' (3).

 

3.11. The Law Commission recommended that the test of incapacity should also apply to the communication of a decision as well as the ability to make the decision itself. This would cover cases where it is not possible to determine the person's response, even if they might be capable of making the decision concerned. They thus suggested that a person should be regarded as without capacity if at the material time (the time of the decision) he or she is:

 

"- unable by reason of mental disability to make a decision on the matter in question; or

 

- unable to communicate a decision on that matter because he or she is unconscious or for any other reason." (4 )

 

3.12. The Government accepts this recommendation in principle, but seeks views on whether these definitions are considered appropriate.

 

Further definition of inability to make a decision

 

3.13. The Law Commission suggested that the inability to make a decision could be split into two areas: the first question is whether the person concerned is able to understand and retain the relevant information, including the consequences, not only of deciding one way or another but also of making no decision at all. The second question is whether the disability means that the person concerned is able to use that information in order to arrive at a decision: some people may be unable to exert their will, whether because of delusions or compulsions, or because of susceptibility to influence, or any other reason connected with their disability. The schizophrenic who cannot believe what his doctors or financial advisors tell him is one example; the manic depressive whose impulses override his understanding is another. This is supported by Thorpe J's judgement in Re C (5). The Law Commission thus recommended that a person should be regarded as unable to make a decision by reason of mental disability if the disability is such that, at the time when the decision needs to be made, the person is:

 

unable to understand or retain the information relevant to the decision or

 

unable to make a decision based on that information.

 

3.14. The recommendations made by the Law Commission in this area were generally well supported on consultation and they reflect the type of issues taken into account in common law at present.

 

3.15. The case of Re MB (6) has further clarified the common law in this area. In this case, the Court of Appeal set out the principles determining whether a person lacks capacity. The court also set out principles of procedure to be followed when it is thought necessary to seek declarations from the courts on such a matter. In the light of this, and a number of similar cases, the Department of Health has already issued a summary of legal rulings to the NHS, under cover of an Executive Letter (7), concerning the legal rulings in relation to caesarean sections and to the posthumous storage of gametes.

 

Q5a. Is the proposed definition of incapacity appropriate, and likely to be of use to practitioners?

 

Q5b. If so, how do practitioners see this working in practice?

 

 

Code of Practice

 

3.16. The Law Commission suggested a Code of Practice for the guidance of those assessing whether a person is or is not without capacity to make decisions. As well as providing valuable guidance for professionals, such a Code of Practice might also help deal with a number of practical problems, such as that of the individual whose mental state varies widely and who fluctuates between capacity and incapacity.

 

3.17. The Government accepts the principle of this recommendation.

 

 

Maximising decision-making capacity

 

3.18. To maximise the person's potential to make their own decisions, the Law Commission recommended that a person should not be regarded as unable to understand the information relevant to a decision if he or she is able to understand an explanation of that information in broad terms and simple language, including other languages if appropriate or other forms of communication such as audio tapes. They also recommended that a person should not be regarded as incapable of communicating their decisions unless "all practicable steps to enable him or her to do so have been taken without success" (8).

 

3.19. The Government accepts the principle of this recommendation, but seeks views on how these proposals would work in practice.

 

Q6. How, in practice, should "all practicable steps" be defined?

 

Q7. When would it be reasonable to conclude that such steps had been taken?

 

3.20. The Law Commission's final recommendation in this area concerns the resulting decision, which they maintained should not be regarded as invalid, just because it would "not be made by a person with ordinary prudence". This again asserts the right of the individual to make their own choices, even if these do not comply with those of professional experts, or are made for reasons which are irrational, unknown or for no reason at all.

 

3.21. The Government accepts the principle of this recommendation, but seeks respondents' views on how best consistency can be ensured in determining whether a person is unable to make a decision, and whether the Law Commission's proposals offer sufficient guidance for practitioners.

 

Q8. How best can consistency be ensured in the determining of inability to make a decision?

 

Q9. Do the Law Commission's definitions of inability to make a decision offer sufficient guidance for medical practitioners?

 

 

Best interests

3.22. There is little doubt that decisions made on behalf of a person without capacity should be made in their best interests. Respondents to the Law Commission's consultation were almost unanimous in their acceptance of this point, and the Government shares this view, subject to the confirmation of respondents that the approach is appropriate.

 

Q10. Is the best interests approach the most appropriate for making decisions on behalf of mentally incapacitated adults?

 

Guidance for deciding what is in a person's "best interests"

 

3.23. In determining a person's best interests, the Law Commission recommended that regard should be given to the following factors:

 

the ascertainable past and present wishes and feelings of the person concerned and the factors the person would consider if able to do so;

 

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;

 

the views of other people whom it is appropriate and practical to consult about the person's wishes and feelings and what would be in his or her best interests; and

 

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.

 

These issues, of course, generally are more acute in the field of medical treatment decisions.

 

3.24. The Government endorses the need for guidance as to the criteria that must be taken into account when a decision-maker is considering what is in a person without capacity's best interests but seeks views on whether the list would prove workable, and useful, in practice. In particular, the medical profession should be cognisant of the possible conflicting roles of informants, including the possibility of disagreements among those who are consulted; the position of medical professionals who fail to make all proper enquiries; and the subjectivity, both of the criteria, and of relatives or carers who are required to make the necessary judgements. In addition, the Government would welcome views on the impact of religious or cultural factors in establishing a person's best interests.

 

Q11. Is the proposed guidance for deciding what is in a person's best interests appropriate?

In particular:

 

i. how should the decision-maker deal with differences of opinion between those who are to be consulted?

 

ii. will the medical profession be subject to accusations of negligence if they fail to make proper enquiries to identify or locate all interested parties?

 

iii. can we always expect relatives and carers to put the interests of the person without capacity entirely before their own, especially if their own welfare or that of another relative or close friend is at stake?

 

iv. should the guidance take into account religious or cultural factors in establishing a person's best interests? If so, how could this most effectively be done?

 

3.25. The Government also notes that a local authority social services department and General Practitioners may have a responsibility towards a relative or carer as well as towards the person without capacity.

 

 

General authority to act reasonably

Informal decision-making

 

3.26. There can be no doubt that many decisions are taken every day for people without capacity, with very little authority, whether by carers, family members or treatment providers. This can extend, for example, to paying bills, purchasing necessities, giving medication, dealing with landlords. This substitute authority may develop piecemeal and may become quite extensive before the person without or with limited capacity has a chance to realise how wide this authority has become. This authority may be unregulated in terms of protecting the person without capacity and poses a certain amount of risk for the carer in that they may have little or no legal basis for their actions.

 

3.27. The Law Commission recommended that this informality of decision-making should remain and that there should not be undue recourse to the courts. They did, however, suggest that these decisions be put in a legal context which gave clarity for the carers and adequate protection for those without capacity.

 

3.28. The Law Commission recommended 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." (9) Four concepts are included in this paragraph: the first is whether the action undertaken was reasonable; the second is whether it was reasonable for that particular person to undertake the action. The third concept is whether the decision-maker reasonably believes that the person concerned lacked capacity. The fourth concept is a liability of a person who makes a decision in accordance with a general authority. The Law Commission recommends that decisions made in accordance with the requirements of the general authority should be lawful. If a person makes a decision on behalf of a person without capacity in accordance with the general authority then he will not face civil liability - for example, in relation to the tort of trespass to person, or assault as a result of the decision. The Government seeks views on whether the definition of the general authority is appropriate.

 

Q12. Is the Law Commission definition of the general authority satisfactory? If not, how should it be amended?

 

 

Capacity to contract

 

3.29. The common law already provides that where goods or services which are "necessaries" are supplied to a person with a disability then, even if the supplier knew or ought to have known of the disability (and therefore cannot enforce the contract itself) that supplier has the right to recover a reasonable price (10). The Law Commission recommended incorporating the common law principle of 'necessaries' in their draft Bill. This would mean that where necessary goods are supplied to or necessary services are provided for a person without capacity to contract, he or she should pay a reasonable price for them. This enables people without capacity to be provided with the basic goods and services they might otherwise be deprived of, with the safeguard that the price charged must be reasonable. The Government accepts this recommendation.

 

3.30. The Law Commission recommended that payment might be made in a number of ways:

 

a carer might pay using the person without capacity's money;

 

a carer might pay and then claim from the person without capacity; or

 

a promise might be made on behalf of the person without capacity to pay at a later date.

 

3.31. The Government accepts this recommendation in principle, but has some concerns about whether such a scheme might be open to abuse.

 

Q13a. Are additional safeguards required to ensure the "necessaries" rule does not lead to abuses?

 

Q13b. If so, what additional safeguards might be incorporated?

 

 

A release of payments scheme

 

3.32. The Law Commission suggested a means of ensuring that those caring for a person without capacity can have access to funds to deal with the day-to-day necessities required without continual recourse to the courts. This would enable banks, building societies etc. to make arrangements with carers, once carers had demonstrated that the person in their care did not have capacity. Responses to the Law Commission suggested that an accessible system of this type was needed by carers who otherwise faced delay, cost and lack of legal protection.

 

3.33. The Law Commission suggested that, on receipt of certification from a medical practitioner that the person concerned did indeed lack capacity, companies might make limited contractual arrangements with a third party for withdrawals on behalf of the person without capacity. Such a provision would be particularly useful where the person without capacity had not indicated a person they would wish to handle their affairs in advance of their incapacity.

 

3.34. There would be no compulsion on companies or their depositors to participate in the scheme. A release of payments scheme of this nature would be accompanied by a provision to the effect that, if an institution releases payments in accordance with the terms of the scheme, then the institution will be protected from liability to its customer without capacity for having done so. The Law Commission recommended that the protection would not be available where the customer has opted out, by instructing the institution not to enter into such an agreement, nor will it be available where the original customer, at any time when the agreement is in force, informs the institution that a payment is not to be made. Nor should the institution benefit from the protection from liability if there is reasonable cause to believe that the recipient is likely to misapply the money received.

 

3.35. The Law Commission proposed a number of safeguards, namely that:

 

the recipient must acknowledge that he or she: (1) understands the obligation to apply any money in the best interests of the original customer; and (2) is aware that civil or criminal liability may be incurred if the money is misapplied; and (3) is not aware of any other person who has authority to receive the money;

 

there would be a financial limit of £2,000 per year (although this would apply per individual agreement);

the company would not be protected if the maximum amount was breached;

 

the appointments would be time limited for two years; and

 

a person acting under a power of attorney or similar would be able to override other arrangements.

 

3.36. The Government accepts these recommendations in principle, and believes the proposal would pose no problems with regard to the majority of carers who are likely to act only in the person without capacity's best interests, but there are a number of practical problems, including ensuring that there are adequate safeguards against abuse, on which respondents' views are requested.

 

Q14. How would a release of payments scheme work in practice? In particular:

 

i will sufficient institutions and individuals be willing to participate in the scheme to make it workable?

 

ii. will there need to be an obligation on companies to check that the information provided is valid?

 

iii. will doctors fully understand the financial implications of the medical certificate they are preparing?

 

iv. will there be a need for appropriate witnessing or authorising of the medical certificate to prevent fraud?

 

v. is the proposed limit of £2000 per year realistic and practical? If not, what should be the limit?

 

 

Direct payments to third parties

 

3.37. The Law Commission's draft Bill also makes provision for direct payments to third parties. Similar concerns to those outlined above will, however, also apply to this proposal. One way of limiting potential abuse would be to ensure that direct payments could only be made in respect of contracts which related to the necessaries of life e.g. housing costs, water, fuel, food etc.

 

Q15. Should direct payments to third parties be restricted to "necessaries" only?

 

 

Alternative Scottish proposals

 

3.38. The Scottish Law Commission proposed a slightly different scheme that would allow carers to make withdrawals from the bank account of a person without capacity, where authorised to do so by a central authority, the public guardian. Following the consultation exercise earlier in 1997, the Government is now proposing a slightly revised scheme that would operate in Scotland. The Government believes that it would be desirable to adopt a common scheme north and south of the Border, as many banks and other organisations have branches throughout Great Britain and would find it difficult to operate two different schemes.

 

3.39. The main features of the proposed Scottish scheme are:

 

Carers would apply to the public guardian, an officer of the Supreme Court, for authority for single payments, or a series of regular payments, from the bank account of the person without capacity to be made to a specially designated account at the same bank.

 

The carer would operate the designated account in the normal way and could use it, for example, to withdraw cash or to make direct debit or standing order arrangements, to meet daily living expenses.

 

The public guardian would authorise the amount and frequency of payments and would monitor, through spot checks, and the investigation of complaints, that funds were used for the benefit of the person without capacity. The public guardian would be able to make enquiries about transactions on the designated account and on the account of the person without capacity.

 

The public guardian would review the authority to withdraw regularly. He would investigate any problems or suspicious circumstances.

 

The public guardian would be able to charge a fee.

 

The bank would be liable to the person without capacity for allowing payments over the limits set out in the public guardian's authority.

 

 

Q16. What are the respective merits of the Law Commission's scheme at paragraphs 3.32 - 3.37 and the Scottish proposals at paragraph 3.39? In particular:

 

i. is it desirable to have a common scheme for Scotland and England and Wales?

 

ii. is it desirable to have the additional protection for the funds of the person without capacity that is provided by the public guardian in the Scottish proposals, recognising that the public guardian role will require to be funded?

 

iii. who would perform the role of the public guardian, should the Scottish proposals be adopted for England and Wales?

 

 

Restrictions on the General Authority

 

3.40. The Law Commission recommended that a person acting under the general authority should not be able to make a decision on behalf of the person without capacity on the following matters:

 

consent to marriage;

 

consent to sexual relations;

 

consent to divorce on the basis of two years separation (this will become redundant following the implementation of the Family Law Act 1996);

 

agreement to adoption or consent to freeing a child for adoption;

 

voting at an election for any public office; or

 

discharging parental responsibilities, except in relation to a child's property.

 

3.41. The Government accepts this recommendation in principle, but suggests that, in relation to a child's property, the interests of the child should continue to take precedence over those of the person without capacity. The views of respondents would be welcomed.

 

Q17. Should the interests of a child continue to take precedence over those of the person without capacity in relation to a child's property?

 

Coercion and Confinement

 

Harm to a person without capacity

 

3.42. To ensure that the general authority specifically excluded actions which might infringe the civil liberties of the person without capacity, the Law Commission recommended that the general authority should not include the authorisation of "the use or threat of force to enforce the doing of anything to which that person objects; nor should it authorise the detention or confinement of that person, whether or not he objects. This provision is not to preclude the taking of steps which are necessary to avert a substantial risk of serious harm to the person concerned." (11) Such a provision would also make it clear what action a carer might reasonably take without risk of legal action.

 

 

Harm by a person without capacity

 

3.43. The Law Commission considered that no reference to harm to others is called for in any new statute since this contingency is adequately covered in existing law (12). This is an issue on which there has been public concern and the Government is of the view that there should be an express statutory provision regarding harm to others which would clarify the legal position.

 

 

Decisions of the court or of a person appointed by the court or under a valid power of attorney

 

3.44. The Law Commission recommended that a decision of the court or of an appointed manager would override this general authority. Where, however, there was a potential conflict, for example a person acting under a general authority disagrees with a person operating under a valid power of attorney, the Law Commission recommended that there should be no restrictions on action being undertaken to prevent the death or serious deterioration of the condition of the person without capacity pending a decision by the court.

 

3.45. The Government accepts this recommendation in principle.

 

 

Code of Practice

 

3.46. The Law Commission recommended that a Code of Practice on the definition of reasonableness might be helpful to offer further guidance to carers in this area.

 

3.47. The Government accepts that guidance to professional carers would be helpful, but seeks views on how best to provide guidance for other carers, such as family members.

 

Q18. What type of guidance might be helpful for carers?

 

 

New offence

 

3.48. The Law Commission recommended that it should be an offence to ill treat or wilfully neglect a person in relation to whom he or she has powers by virtue of the new legislation. Such an offence could only be committed by: any person having the care of, or in lawful control of the property of the person concerned; any donee of a continuing power of attorney; or a court appointed manager. The Law Commission regarded the existing offence under the Mental Health Act as being insufficient. The Government accepts this, given that the categories of person covered by the term "incapacity" are broader under the Law Commission proposals than those covered by the Mental Health Act. The introduction of such an offence would also give a clear message that any new legislation is not only about simplifying the rights of carers - their responsibilities towards the person without capacity are also taken very seriously indeed.

---

1 Law Com 231, para. 3.23.The Key Principles

 

2 In reaching the conclusion that there should be a diagnostic threshold the Law Commission took into account that there may be a small number of cases where a finding of incapacity could lead to action which could amount to 'detention' within the meaning of Article 5 of the European Convention on Human Rights. The case law of the European Court of Human Rights requires that any such detention should be pursuant to a finding of unsoundness of mind based on "objective medical expertise" (see para 3.8 of the Commission's Report and Consultation Paper No 119, paras 3.10 - 3.14).

 

3 Law Com 231, para. 3.12.

 

4 Ibid., para. 3.14.

 

5 Re C (Adult: Refusal of treatment)[1994] 1 WLR 290.

 

6 Re MB (Medical Treatment) [1997] 2FLR No3.

 

7 EL(97)32 Consent to Treatment - Summary of Legal Rulings

 

8 Law Com 231, para. 3.21

 

9 Law Com 231, para 4.4.

 

10 See also the Sale of Goods Act 1979, s3(2) which gives the rule statutory form in relation to goods.

 

11 Law Com 231, para 4.33.

 

12 Ibid., paras 4.30 and 4.31.