26.Memorandum from Professor John Williams,
Department of Law, University of Wales, Aberystwyth (MIB 564)
1. My reason for submitting evidence to
the Joint Committee arises out of my professional interest in
the area of social services law and in particular the law relating
to vulnerable adults. I have published a number of articles on
vulnerable adults in academic journals such as the British
Journal of Social Work, Journal of Social Work, Journal of Social
Welfare and Family Law and the Criminal Law Review
as well as a number of essays in edited collections. In addition
to my teaching at the University in Family and Child Law, and
Medicine, Ethics and the Law, I also undertake professional training
for social workers and other social care professionals for local
authorities and the voluntary sector. I am a training consultant
for the British Association of Services for the Elderly (BASE).
2. The draft Bill is welcome and very timely.
Incapacity is a growing area of concern for social work practitioners
and most feel uncomfortable working under the existing system.
Whereas the common law on decision making for incapacitated people
has served us reasonably well and facilitated decision making
for incapacitated people, it is doubtful whether it contains sufficient
safeguards to ensure that it does not violate the European Convention
on Human Rights (ECHR), especially the article 8 right to a private
life. The recent case of Re F (Adult Patient) illustrates
the extent to which the courts have to go to provide adequate
protection for those who lack capacity. My
comments concentrate on specific aspects of the draft bill; they
are made in the context of general support for what the bill is
seeking to achieve.
3. The definition of legal capacity:
The definition in clause 2 quite properly develops the common
law definition, but gives legal force to what has in the past
merely been good practice (which anecdotal evidence suggest is
not always followed). Sub clauses 2(2)-(5) are particularly welcome.
However, one situation not covered by the definition are those
cases, often abuse cases, where a vulnerable person probably does
have capacity (it may be marginal), but is subject to undue influence
by an abusing carer, relative or professional. The dilemma for
professionals is that if the person refuses help and support,
there is little that can be done because the law will deem them
to have capacity. It is interesting to note that the heading for
the section is "Inability to make decisions" rather
than incapacity. Is it intended that clause 2(2) should include
extreme (and I emphasise extreme) cases of undue influence? Would
such cases come within clause 2(1)(c) and (d) as cases of inability
to use the information or communicate the decision because of
intimidation? Clearly the provisions of clause 1 mean that they
would not unless it arose from an impairment or disturbance in
the functioning of the brain or the mind. I would suggest that
some thought be given to extending the remit of the bill to include
extreme cases of undue influence, with the necessary safeguards
included to make it compatible with the ECHR. This would require
extending the definition in clause 1.
4. Best interests: Placing the best
interests test on a statutory basis is welcome and will ensure
some consistency in decision making for incapacitated people.
It is essential that the contents of clause 4 are disseminated
widely by health and social care professionals. Undoubtedly, this
will done by professional bodies and employers. The more difficult
group to cover is the one consisting of people using the general
authority under clause 6. Will such people, often informal carers,
be aware of the meaning of "best interests"? There may
be a tendency to understand it as paternalistic and always doing
what is "sensible" when in fact the incapacitated person
may, during a lucid period, made it clear that they do not want
to do what is sensible. There needs to be widespread dissemination
of the "best interests" test. I am not entirely happy
with the term "best interests" as it does conjure up
the image of paternalism. A less concise, but in my opinion a
more acceptable term, would be "in the interests of promoting
the human rights of the person". This would suggest that
a liberty based calculation has to be made which will embrace
both the need to protect, but also recognise the individual's
autonomy. I accept that the individual's autonomy may be seriously
compromised by their incapacity; however it must still be part
of the calculation.
5. The general authority: Placing
what de facto happens on a regular basis on a statutory basis
is welcome and will provide protection not only for the incapacitated
person, but also the person who has assumed the responsibility.
My main concern is that in some cases this may well give a false
sense of legitimacy to something that is inherently abusive. Will
abusers be able to hide behind the general authority and effectively
gain "lawful" authority for their actions? Again anecdotal
evidence suggests that enduring powers of attorney and appointeeships
are being used in this way. I appreciate that given the possible
extensive use of the general authority, close regulation is impossible.
The proposed criminal offence in clause 33 may reinforce the duty
to act responsibility. However, I remain concerned that what is
a well intentioned idea may in practice be used as an instrument
of abuse. Is it possible to strengthen the safeguards? Should
people using the general authority be required to keep very simple
accounts? Is it possible for there to be a "light touch"
(very lightI appreciate the resource implications) registration
process for people using the authority?
6. Advance decisions: It is trite
to say that this is an immensely complicated and sensitive area;
there is a need to inject some legal certainty to protect patients
and doctors. Obviously it is important that people are aware that
the proposals are not just about life sustaining treatment but
of more general application, although I suspect that such treatment
will be the one that attracts media attention. In general the
provisions of clauses 23-25 are good. My one reservation is the
wording of clause 24(4)(c). Does this give too much scope for
medical practitioners to override advance decisions? It is understandable
that doctors may wish to save life or promote wellbeing (the recent
case of Ms B illustrates this point). My concern is that the wording
of that sub clause gives considerable scope for "rewriting"
the terms of an advance decision, for example by stating that
medicine has advanced since the advance decision was made and
the patient would surely have wanted the treatment. Presumably
such decisions by doctors would be subject to the Bolam testwould
a responsible body of medical opinion have come to the same conclusion?
This may undermine the effectiveness of advance decisions if it
is interpreted widely by doctors. Firmer safeguards are required.
A related point is whether advance decisions should be time limited
during the capacity of the person; it may be sensible for people
who still have capacity to update them (say every five years)
to ensure that advances in medicine are taken into consideration.
Alternatively, an incentive to update may be included whereby
the working of clause 24(4)(c) could give doctors more scope to
deem the advance decision to be non applicable after (say) a five
year period. This would allow them to have greater regard to changed
circumstances, namely new advances in treatment that the person
could not have been aware of at the time of making the advance
1 The views in this paper are my own and do not represent
those of BASE. Back
I enclose a copy of an article published in the Journal of Social
work which addresses my concerns on the decision in relation to
vulnerable adult protection laws. Back