Joint Committee on the Draft Mental Incapacity Bill Written Evidence


115.Memorandum from Solicitors for the Elderly (MIB 930)

  1.  Solicitors for the Elderly (SFE) is a national organisation led by solicitors who are committed to providing and promoting a comprehensive range of high quality legal services for older people, their family and carers. We have in excess of 400 members. SFE welcomes, in principle, legislation in the area of mental incapacity. Such legislation would provide legal clarity generally in the area of decision making on behalf of adults (often the elderly) who lack capacity, empower those who have limited capacity to decide as much as they can for themselves, protect the vulnerable from abuse, encourage clients to consider seriously whom they wish to take decisions on their behalf in the event of incapacity and restructure the Court system both in relation to the Court of Protection and the new Public Guardian which is hoped will solve some of the existing problems which SFE's members, as practitioners working with the present Court of Protection and PGO, encounter on a day-to-day basis.

  The comments on the draft Bill follow the order of the clauses of the Bill itself and have been drawn from information provided by SFE's members.

2.  DEFINITION OF PERSONS WHO LACK CAPACITY ETC (CLAUSES 1-3)

  The following issues will need further consideration:

  2.1  Under clause 1(1) a person can be treated as lacking mental capacity if he is unable to make a decision for himself because of "impairment of or a disturbance in the functioning of the mind or brain". It is unclear how wide this definition is intended to be. Could it, for example, encompass the possibly temporary effect of drugs or alcohol? More importantly, to what extent does this definition of capacity take precedence over, dispense with or otherwise revoke the existing common law tests for various types of legal capacity; testamentary capacity, capacity to make gifts, capacity to instruct solicitors in litigation/other matters, make an EPA etc? Is there intended to be one over-riding statutory test for these matters or will the common law tests be used together with the statutory test? If the latter is to be the case, it appears that a common law test could have an additional element added. For example, the Banks v Goodfellow test for testamentary capacity does not require the testator to have considered the reasonably foreseeable consequences of either deciding or failing to decide which clause 2(5) of the Bill does require. Under Banks v Goodfellow, the testator does not need to understand what would happen should they decide not to make a Will and consequently the effect of the intestacy rules on their estate, but the Bill would require this.

  2.2  Under clause (2)(1)(d), a person will be treated as unable to make a decision if he cannot communicate the decision. Various examples of how that decision could be communicated are given in the notes. What is intended to be the position however in relation to a person who cannot communicate as a result of physical paralysis which cannot be demonstrated to be referable to an impairment or disturbance in the functioning of the brain? That person would fulfil only part of the clause 1(1) definition—he would be unable to make a decision for himself because he could not communicate that decision—but it would be unclear that he would be unable to decide as a result of the impairment of or disturbance in functioning etc.

  2.3  Under clause 2(3) a person will not be treated as unable to make a decision unless all practicable steps to help him do so have been taken without success. Clause 22 of the Commentary gives examples of the steps which could be taken to help somebody make their own decision and mentions that this is an area which the Code of Practice will cover. It would, however, be sensible for the word "reasonable" to be inserted between "all" and "practicable". "Practicable" could obviously be construed as encompassing the concept of reasonableness but it would be more sensible to make this clear and would assist those trying to assess the lengths to which someone should go to achieve communication.

  2.4  Clause 2(4) indicates that the fact a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as being able to make that decision. There is a concern that this does not provide protection in particular to a client with dementia who may, for example, recall they need to pay a bill but once paid, forget within a short period of time that it has been paid and so pay again. This is an area in which, again, the Code of Practice could give guidance.

  2.5  Clause 3—presumption against lack of capacity. Although clause (3)(1) restates the existing common law presumption of capacity, the wording "unless it is established that he lacks capacity" is unclear. To whose satisfaction should this be established?

3.  BEST INTERESTS (CLAUSE 4)

  The "best interests" test in clause 4 is effectively a codification of well established common law principles which are now related to making decisions for incapacitated adults. Although SFE welcomes the statutory requirement to act in an incapacitated person's best interests as a useful focus of the mind of whoever is seeking to make a decision for an incapacitated person, there are a number of issues which require further consideration and clarification:

  3.1  The listed factors to be taken into consideration when determining best interests are not as wide as those contained in previous recommendations. The legislation in Scotland, for example, has a concept of "general principles" intended to cover the same ground which could be argued to be less paternalistic.

  3.2  It is unclear how the "best interests" test is intended to applied when the matter under consideration is the making of a Will, Settlement or a gift in favour of a third party. This type of action could only rarely be said to be directly in the best interests of the incapable person if it results in immediate financial reduction even if the plan is for a saving of tax later on. Under the Mental Health Act 1983, the test applied by the Court of Protection is whether the patient would make the gift/settlement if they were of full capacity and properly advised (cf Re D (J) in respect of Wills). Obviously the Court would never make a gift or settlement which would be detrimental to the patient but that is very different from saying that making it must be in the best interests of the person who lacked capacity.

  3.3  It is also unclear whether the "best interests" test is intended to be subjective (ie what the incapable person in question would consider to be in his best interests) or objective (ie what a reasonable person in the position of the incapable person would conclude to be in his best interests). Logically, the test should be a subjective one to follow the existing case law in relation to financial decision making by the Court of Protection but this needs to be clarified.

4.  GENERAL AUTHORITY (CLAUSES 6 & 7)

  4.1  Although SFE welcomes the statutory General Authority (GA) as a practical solution to the need for day to day authority for decision making, the welcome is a cautious one. It has been reported on a number of occasions that financial abuse under the existing EPA arrangements is probably happening in some 20% of cases and the proportion may be much higher, bearing in mind the large number of EPAs which are not registered. Where there is no EPA or receivership order, presently no individual has the power to act for another and it is impossible to assess what level of financial abuse is already ongoing as where there are no formalities there is no way of monitoring the prevalence of abuse. The GA is intended to apply in hospitals, care homes, day centres, private homes and any other public place or setting where services are provided but there is little in the Bill to provide safeguards against the kind of abuse which, even anecdotely, it is clear is going on now.

  4.2  Clause 6 authorises a person to carry out an act when providing "any form of care". The word "care" itself is not defined and could be a very widely drawn concept. To take an extreme example, a carer providing meal making services for an incapable person might decide that an incapable person's kitchen is not suitable to provide the kind of meals which they believe it is in the best interests of the incapable person to receive and incur expenditure (see 4.4 below) on behalf of the incapable person in purchasing a new cooker, microwave, dishwasher and other expensive kitchen equipment. They would do this believing they were acting in the best interests of the incapacitated person but where is the line to be drawn?

  4.3  To use a GA, there is no need for a Court to have selected the decision maker and set parameters for decision making. Neither have these issues been determined by the incapable person themselves as would be the case under an EPA or LPA. In a GA situation, the decision maker would be empowered to make decisions until such time as they are challenged and so it is doubly important that safeguards and parameters are set in an identifiable way.

  4.4  It is of concern that under clause 6(2) a person acting under a GA could carry out an act involving expenditure and as part of this, pledge the incapacitated person's credit for the purposes of the expenditure and apply money belonging to the incapacitated person to meet it. It is doubtful in any case that any financial institution would act on the basis of a GA to enable a person to operate a bank account or raise money on the security of an incapacitated person's property; our members already experience difficulty regularly in arranging for banks etc to accept EPAs. There is also no requirement that the person able to exercise these financial powers under a GA is themselves financially prudent. At present, an attorney under an EPA or a receiver cannot be a bankrupt but there is no such limitation on someone acting under a GA.

  4.5  It appears under clauses 6(4) and 7(2) that although the GA does not authorise a person to do an act which conflicts with a decision made either by a donee of an LPA or a deputy, a person will be able to exercise a GA notwithstanding that another person actually holds an LPA or is a deputy providing that those persons have not made an actual decision. This seems likely to cause significant confusion. Surely where a person with capacity has appointed an attorney to make a decision for him or the Court has appointed a deputy, no other person should be permitted to act under the GA without having first taken all reasonable steps to contact the attorney or deputy and discuss and clear the decision proposed to be made with them?

  4.6  The position of third party providing goods or services requested under a GA is not clear. They may have no knowledge of the appointment of an attorney or a deputy or any contrary decision made by them.

5.  LASTING POWERS OF ATTORNEY (CLAUSES 8-13 INCLUSIVE)

  5.1  SFE members are well aware of the existing problems that surround EPAs as they regularly draft them, advise on them, and consider the capacity of their clients to make them. One of our members has commented "EPAs are not understood well by the general public and the fact that you can buy them in a bookstore . . . I believe is very misleading . . . The fact that they can be completed by anyone and then used is very worrying. From my experience they complete these forms when persons are already mentally incapable and then unfortunately we all know the results". SFE members have therefore raised a number of points concerning LPAs.

5.2  ATTORNEY'S POWERS AND RESTRICTIONS

  A donor under an LPA will be able to grant a wider range of powers to their attorney than under an EPA. An attorney can be granted power over personal welfare and property and affairs. SFE welcomes this development but with caution. It may be appropriate for the "financial" attorney to make welfare decisions or the LPA may need to be restricted or more than one prepared dealing with separate issues. This has cost implications for clients as each new LPA will need to be registered and have a capacity certificate—each with attendant cost.

5.3  FORM OF THE LPA

  A number of our members have commented on the difficulties with the current prescribed form of EPA. Obviously the new form of LPA will be specified by regulation (not yet available) however it is anticipated that there will be prescribed information in the same broad form as the current EPA. One of our members has commented in relation to the current form that "the wording on the front of the current documents is also quite difficult to explain to clients, especially number 7 which states "become or are becoming"—what does this really mean to the general public?" and another suggests that Plain English is used which it is felt would reduce abuse as donors would be clearer as to the effect of the power. Schedule 1 Part 1 paragraph 2 specifies matters to be covered in the prescribed form. SFE would welcome consultation on it when a draft is available.

5.4  NOTIFIABLE PERSONS

  Although Schedule 1 Part 1 paragraph 2(c) provides that the donor may state in the instrument there are no persons whom he wishes to be notified of any such application, our members have concerns about this. It is accepted that there are those donors who have no relations or close friends to notify however our members regularly encounter situations which, for example, one of three children is appointed as attorney and the other two do not find out about it until registration is applied for under the current EPA system. Children not appointed (sometimes correctly, sometimes not) feel disgruntled about this and it would be sensible for there to remain a requirement for notification of, perhaps, near blood relations. Such notification obviously will now take place at the point of registration whilst the donor still retains capacity so that they can explain their selection of attorneys.

5.5  IDENTITY OF DONEES

  Clause 9(1) provides that a donee can only be as trust corporation where the power relates to property and affairs. In practice if the trust corporation were managing a donor's finances they might need to be involved in welfare decisions (although not giving or refusing consent to medical treatment). This would mean that they would have to rely on applying to the Court for appropriate authority or somebody exercising a general power. This would by its nature incur additional expense and delay.

5.6  REGISTRATION, CAPACITY ASSESSMENT AND COSTS

  An instrument will not be a valid LPA until it has been registered and therefore the present system of acting under an unregistered EPA will no longer exist. One of our members has expressed concern that registration on creation could be "ridiculously bureaucratic, frustrating and time consuming etc" and others have commented that EPAs are currently used frequently for those quite capable but who simply need a document to assist them with a house move, cover their finances in relation to a holiday or a gap year for a student. SFE is concerned that the requirement for immediate registration, with its cost, will deter people from making LPAs which must be a bad thing, considering the issues of abuse. One of our members commented "I would regret anything that encouraged clients to postpone putting their affairs in order. An active LPA regime, where people are encouraged to create LPAs, would presumably reduce the amount of . . . receiverships, so it is in everyone's interests to ensure LPAs are an attractive proposition".

  The same comment could be made about the requirement in Schedule 1 Part 1 paragraph 2(e) concerning the requirement for a certificate signed by a person of prescribed description as to the capacity of the donor. Additionally it is by no means clear whom a prescribed person should be and this seems to be an area in which much more guidance is required. There has been judicial comment in at least one recent testamentary capacity case to the effect that the evidence of a solicitor as to the capacity of testator is as useful as that of a doctor even though it is accepted that the solicitor is not medically trained. That having been said, solicitors do not have specific training in the assessment of capacity and there would be concern as to what training would be necessary for a solicitor to be sufficiently qualified to assess a client and give such certificate.

The costs of giving such a certificate are obviously a consideration as well. Added to the registration fee, they could represent a significant outlay on behalf of the client in making an LPA.

5.7  ONE LPA OR MORE THAN ONE

  It has in the past been common for more than one EPA to be made although it has never been completely clear whether a later EPA was to revoke an earlier one. This matter is also not clear as far as LPAs are concerned. The bills should clarify whether more than one LPA with the same scope can exist at the same time. If it does, will the Public Guardian register both? What will the PG's view be if there was in existence one LPA covering both welfare and financial matters and one covering only welfare matters?

5.8  DELEGATION

  Clause 9(8) does not permit the donee of an LPA to appoint a substitute or successor but can appoint a person to replace the donee on the occurrence of death, bankruptcy or disclaimer of the donee or divorce of donor or donee. The Act does not, however confirm specifically that this is the only substitute decision making power permitted under an LPA and that an attorney cannot otherwise delegate his or her decision making power. It is accepted that the restriction on delegation is a general provision of existing agency law but if a detailed statutory framework for LPA is available, this should be made clear.

5.9  REVOCATION

  Clause 12(5) does not provide power for the Court to remove a donee and revoke the power. The Court is given this power in clause 21 (4) but only where the donor has lost capacity. It might be difficult to think of occasions in which the Court might require the power to revoke an LPA and remove a donee where the donor does retain capacity however such occasions might arise, for example, the donor retains capacity but is being unduly influenced by the donee.

  Clause 12 should make specific provision as to how an LPA is to be revoked—should writing be required? What is the position after revocation but before registration has been cancelled? Provision is also required as to notifying a Public Guardian and amending the Register. Finally, perhaps the appointment of a deputy with either the same or overlapping scope should revoke the appointment of an attorney under an LPA unless specially provided to the contrary in the appointment.

5.10  LPAS AND GIFTS

  Although the "best interests" test is not specifically referred to in clause 11, clause 4(1) says that all decisions made under the Act are subject to the test. Clause 11 clearly seeks to deal with some of the issues which have arisen under Section 3(4) EPAA 1985 but some other issues still arise. It is not clear if clause 11 can be used to permit an attorney under an LPA to maintain himself or a third party who could reasonably expect to be maintained by the incapacitated donor. This could encompass a spouse, minor child, dependent co-habitee or even an adult child who having been independent subsequently became incapable of supporting himself or herself. On the basis of the limited scope of clause 11, it is likely that more applications for single orders will be made to the Court of Protection not less.

5.11  ACCOUNTS—SEE 7.2 BELOW

6.  RESTRUCTURED COURT OF PROTECTION (CLAUSES 14 & 15, 34-37)

  6.1  It is not entirely clear from clause 37(1) exactly what powers of the High Court the Court of Protection will have. The reference to High Court powers is not specific enough and the powers which the Court of Protection requires should be specified.

  6.2  The Court itself will, in any case, need to have special resources to train judges. Although nobody below the level of District Judge can apply to be a Judge of the Court of Protection, the unusual jurisdiction and procedures of the Court means that there will be few existing district judges who have the skills to become Court of Protection Judges and special training will be required.

7.  DEPUTIES (CLAUSES 16-20)

  7.1  While it is welcomed that the individual be able to continue to have appropriate control over their affairs, limiting the scope and duration of the authority of a deputy in clause 16(4)(b) in practice will almost certainly cause confusion with financial organisations as to when and who can sign financial papers. There could be some provision for a general authority on similar terms as an LPA when dealing with finances and affairs which is for a fixed period but renewable. Additionally, the more times the deputies return for a court authority the more the delay and expense. Although it is understood that the decision of the Court is to be preferred to the appointment of a deputy to avoid the need to interfere more than required in decisions, there are cases where a person's decision making powers vary considerably on a week by week basis, particularly if they are suffering from illnesses which recur from time to time or which are managed through drugs or which have a seasonal nature. In such cases, the appointment of a deputy should be preferred to provide consistency. Similarly, in the case of progressive dementias of the elderly, where a particular point has been passed, it is unlikely that the incapable person will ever be in a position to make any decision other than a very modest nature.

  7.2  It is noted that under clause 19(9) a deputy may be required to submit to the Public Guardian such reports at such times and at such intervals as the Court may direct but there is no automatic requirement for the submission of accounts. SFE would strongly urge that deputies should be required to submit accounts on an annual basis to the Court or the Public Guardian or a nominated person unless that requirement is expressly dispensed with. Holders of financial LPAs should be subject to having to submit accounts if requested and the Public Guardian should select some attorneys each year and require accounts from them. This would encourage high financial standards and discourage abuse.

  7.3  Clause 20(3) does not exclude the deputy having a power to make gifts. It is unclear whether a deputy is intended to be given these powers.

  7.4  The width of clause 20(4) is concerning. Although it is unlikely that a deputy would be appointed when a LPA already exists with the same or similar scope without that LPA being revoked by the Court, a decision might have been made by an attorney under that LPA which a deputy might then wish to change which Clause 20(4) does not permit.

  7.5  Clause 19(1) does not allow for a trust corporation deputy to be able to make any welfare decisions, in particular where someone should live. This would mean that they would have to rely on an application to the Court for the appropriate authority which would by its nature incur expense and delay. It may be of benefit for a trust corporation to have the power to make welfare decisions but it would not seem appropriate for this to extend to giving or refusing consent to medical treatment.

8.  ADVANCE DECISION TO REFUSE MEDICAL TREATMENT (CLAUSES 23-25 & 32)

  8.1  Clauses 23 to 25 basically codify the present common law position concerning the right of a competent adult to refuse treatment, both at the time when that adult has capacity and at some future time when capacity may have been lost. Cases such as Re C (1993) and Re T (1992) confirm the right to make such a refusal and specify the mental capacity required to make such a refusal and conditions precedent for one to be valid.

  Various points arise, however, from the provisions of the draft bill.

  8.2  The only formalities specified in clause 23 for what is described as "the decision" are that it has to be made by a person aged 18 with the necessary capacity. There appears to be no requirement for the decision to be expressed in writing and no formalities specified for any such writing. This indicates that advance decisions could be made orally however there are no specific formalities for such an oral decision. Some US States allow for oral advance directives but, considering the potentially informal nature of the making of a directive in this way, specify particular formalities as a safeguard.

  8.3  Clause 23(1) refers to the necessary capacity to make an advance decision and the lack of capacity to consent to the carrying out of a continuation of such treatment. On the basis that the definition of persons who lack capacity in clause 1(1) is expressed to apply for the purposes of the Act, it is assumed that both the capacity to make an advance decision and the lack of such capacity to give consent to treatment are now both to be assessed in accordance with clause 1(1) rather than in accordance with previous case law tests (eg Re C).

  8.4  An advance decision will only be effective if it is both valid and applicable (clause 24). An advance decision will not be applicable if circumstances exist which were not anticipated by the maker of the decision at the time when it was made and which would have affected his decision had he anticipated them. This can potentially make advance decisions difficult to operate in an area of medical practice which is rapidly changing. For example, many new treatments for Alzheimer's has been discussed and tested in recent years. A person with dementia seeking to make an advance decision may well have to be advised that the developments in medical practice are such that an advance decision may not be found to be applicable at the time when capacity has been lost.

  8.5  Clause 24(5) indicates that advance decisions may be used to refuse life sustaining treatment. Although this term is not defined, it seems likely that it would cover the same ground as the definition of "basic care" used by the Law Commission in Report 231 (1995) and other subsequent reports. All the reports agreed that to allow a refusal of basic care would make caring for an incapacitated person extremely difficult for their medical advisers and therefore there ought to be a limitation on advance decisions that this kind of care (such as keeping the patient warm, clean and controlling distressing systems) should not be able to be refused. This has now been changed in the bill but it is not clear why.

9.  ILL TREATMENT AND NEGLECT (CLAUSE 31)

  9.1  SFE welcomes a new offence of neglecting or ill treating a person who lacks capacity. This is however a criminal offence and will be subject to the criminal standard of proof of beyond reasonable doubt and it is unclear how the new offence will fit with powers of the Court of Protection and the Public Guardian. Clause 39 gives the Court of Protection powers to call for reports when considering issues in proceedings. The reports are to be made by Public Guardian or the Lord Chancellor's Visitors. It does not seem from clause 48 that the Public Guardian has a duty to investigate or alert the Court in cases of suspected abuse. The Public Guardian's functions are limited to supervising donees of LPA and deputies, directing Lord Chancellor's Visitors to visit and report and dealing with complaints about the way in which a donee of a LPA or a deputy has exercised their power.

  9.2  In general, it would be more understandable if all the protection and safeguard provisions of the bill were grouped together. At present, they appear in a number of different sections relating to the different types of decision maker and are therefore hard to assess as a group.

September 2003





 
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