28.Memorandum from the Law Society (MIB
Below is a summary of our concerns. However
we wish to stress at the outset that we welcome publication of
a draft Bill and look forward to a Bill being introduced to Parliament
in the near future.
1. Best Interests
We consider the Scottish "general principles"
are more appropriate and less paternalistic and prescriptive.
The Bill should make the intention of the legislation more clear
ie, that it is not intended to interfere with a person's own decision
making where they are able to do this. The Bill needs to show
that it intends to encourage supported decision-making and regulate
substitute decision-making where this is appropriate.
2. Public Law duty to investigate suspected
abuse and exploitation
We consider the Bill has missed an opportunity
to provide adequate safeguards for the physical (and financial)
safety of vulnerable adults and that Social Services and appropriate
NHS bodies should be vested with similar powers and duties as
those contained in the Children Act 1989.
3. Problems with General Authority
We welcome this practical provision but take
the view that the proposals do not provide sufficient safeguards
for carers or individuals. Nor are the powers under a general
authority sufficiently defined.
4. Problems with Lasting Powers of Attorney
The Law Society have identified several technical
difficulties with the Bill.
5. Alternative Dispute Resolution and the
Code of Practice
These topics are pervasive and are raised throughout
6. Reasonable Belief
We consider that the test of reasonableness
of a person's belief about a person with impaired capacity should
be an objective one.
7. Assessment of capacity
The BMA/Law Society guidance may be incorporated
into a code of practice, and that any assessment procedure should
avoid bureaucracy and over medicalisation.
8. High Court Powers
The Law Society considers the new Court of Protection
should have its powers specified to increase access to justice
for those unable to pay legal advice.
9. Legal Advice and Assistance
The objectives of this Bill will be wholly undermined
without adequate public funding.
10. Human Rights compatibility
Several potential conflicts are identified.
11. Interface with Mental Health Legislation
Several overlaps are identified along with suggested
ways of dealing with it.
12. Mutual Recognition of other jurisdictions
This needs to be specified in the Bill.
Consultation group should be wider.
The Law Society of England and Wales has
worked in co-operation with Making Decisions Alliance and approximately
15 organisations/individuals on the proposals contained in the
Draft Incapacity Bill. These submissions have been prepared having
regard to this work and the expertise of the specialist committees
and working parties of the Law Society. This submission is also
made on behalf of United Response, British Association of Psychologists,
Mencap and Royal College of Nursing.
The Law Society welcomes the publication
of this Draft Bill. However, whilst we would wish to fully embrace
these proposals it is not possible to understand their actual
impact without first examining the code of practice which is to
accompany the legislation. Much of the detail on which we comment
may be intended to be included in this code. In any event, we
take this opportunity to raise some specific concerns which we
consider would benefit from closer examination.
1. Best Interests
1.1 Any act or decision made must be done
in the best interests of the person. The best interests principle
is extremely important in the implementation of the Act. It should
focus the mind of whoever is making a decision on what is in the
best interests of that particular person. However, it is imperative
that the person's own decision making ability (and/or communicating
it) is facilitated first. We are concerned that this should be
emphasised in the text so that the best interests principle should
only become relevant once it is established that a substitute
decision is required. In other words a person should be free to
take a risk, make a capricious or a bad decision or one that does
not appear to be in their best interests so long as their capacity
is not disproportionately impaired and that the decision was an
informed one and free from undue influence.
1.2 The Bill does not in our view clearly
distinguish between persons who acquire mental impairment from
those whose impairment has always been present (for example those
who have learning disabilities). The needs of these groups are
different. A person with a severe learning disability may have
capacity to make some decisions and should be encouraged to do
so. The best interests principle is not applicable here, nor for
that matter is the Bill save that it should emphasise the presumption
of capacity and the requirement to facilitate a person's own decision
making. Decisions could be best facilitated and supported by the
use of non-legal advocates.
1.3 The factors taken into account will
be different where a person has never been able to express a preference
and where a paternalistic approach is to some extent unavoidable.
Nevertheless an advocate may assist in gaining some insight into
the persons own wishes and feelings. However, an adult who acquires
a brain injury or develops a disease which impairs their mental
capacity may nonetheless appoint a decision-maker (or make advanced
decisions). Here the Bill needs to regulate substitute decisions
and decision makers. In some respects these characteristics do
not sit well together. This, in our view, has caused some misunderstanding
that the Bill intends to impose or restrict a person's own ability
to make decisions. A clear demarcation of the objectives of the
Bill may assist in a better overall understanding of the legislative
1.4 The listed factors to be taken into
consideration in best interests decisions are not identical to
those contained in the 1995 Law Commission recommendations. In
our view regard to cultural diversity should be explicit. The
Adults with Incapacity (Scotland) Act 2000 has a less passive/paternalistic
concept of "General Principles" that has been very successful.
Careful thought needs to be given to this issue as it goes to
the root of the legislation and how it will be applied to individual
cases. It may be a case of finding the delicate balance between
semantics and legislative intent.
1.5 In Scotland the power of attorney only
remains in force for as long as it is required. There is no formal
de-registering process. By applying the general principles to
a person whose capacity fluctuates, the power is invalid during
lucid intervals. The general principles being more person centred
as opposed to having "best interests" imposed means
that it would be wrong in principle to impose the will of an attorney
where the donor has capacity no matter how much he purports to
be acting in his "best interests".
1.6 Care must be taken to ensure fluctuating
capacity is acknowledged and not held back through bureaucracy.
However, it needs to be manageable for others if capacity fluctuates
from hour to hour, to protect third parties such as banks and
1.7 In terms of ethics, the Scottish General
Principles are preferred to the Best Interests proposed. They
are now tried and tested whereas "Best Interests" departs
from other jurisdictions notably US and Canada. If the general
principles are not adopted we would suggest incorporating para
1(2) of the Scottish General Principles into England and Wales
1.8 Finally, given the weight this clause
has on the application of Bill, we consider it should be placed
as Clause 1 (along with the "presumption of capacity")
to indicate the importance of the principle throughout the Bill.
1.9 The code of practice should draw heavilyand
explicitlyon the guidance given by the President of the
Family Division, on the assessment, meaning and implications of
competency and capacity, notably in Re MB 1997 2 FLR 426 (1997)
2 FLR 426:  FCR 541:  38 BMLR 175 and B v An NHS Hospital
Trust 2002  1 FLR 1090;  2 All ER 449:  65 BMLR
149. It would also be important to include practical case examples,
following the format of the guidance accompanying the Disability
Discrimination Act 1995.
2. Public Law duty to investigate and protect
in cases of suspected abuse or neglect
2.1 Children have long been protected by
a public law duty enabling the NSPCC or a Local Authority to investigate,
and take steps to protect a child from suspected abuse. The Law
Society takes the view that it is time for vulnerable adults to
have similar protection. This was recommended by the Law Commission.
The absence of this in the Draft Bill fails to reflect widespread
public support for the recommendations. Abuse, neglect or exploitation
of learning disabled and elderly persons often goes unnoticed
by the general public and the experience itself is often silencing
for the individual. There needs to be a safe forum created where
abuse, exploitation and neglect can be disclosed and addressed
in the most appropriate manner using a multi-agency approach.
We propose that social services and an appropriate NHS body should
have investigative powers and duties which could be triggered
through a code of practice to refer suspected cases which come
to the attention of GP's, Social Workers or any concerned person.
The court will be empowered to call for reports (Clause 39). It
is suggested that there be corresponding Section 7(1) Local Authority
Social Services Act 1970 guidance issued by Minister of State
and Welsh Assembly to ensure compliance. The Draft Bill proposes
a continuation of Lord Chancellor's Visitors (LCV's), however
they lack the powers, resources, status and expertise of a Local
or Health Authority. Also, LCV's are too restricted (Clause 49).
They should include psychologists and neuro-psychologists etc.
2.2 Whilst exploitation may include financial
abuse, it is difficult to monitor as there is rarely any manifestation
to alert a concerned person. Nonetheless a duty to keep written
records could be imposed subject to a de minimus rule of an estate
under £5,000. In these circumstances the court should however
be empowered to order that records be kept of a smaller estate,
if it thinks fit.
2.3 Despite the retention of a criminal
offence of "ill treatment and neglect" (currently at
s127 Mental Health Act 1983) the new provision does not include
"exploitation". This should be included to apply to
financial exploitation. However there are the incumbent problems
of the criminal standard of proof. The offences do not address
the wider issues of protecting the victim during investigation
and providing a place of safety etc, or the threat of consequences
resulting from disclosure to the police which may prevent vulnerable
witnesses from coming forward.
2.4 Whilst the Court of Protection are to
have power to call for reports, there is no corresponding duty
for the reporting bodies to alert the Court that a need for investigation
exists. It is a "function" of the Public Guardianship
Office to "supervise" the exercise of donees' powers
but there is no over-riding duty.
2.5 The Law Society argues for a range of
parallel civil and public law remedies (not dissimilar to those
provided by the Children Act 1989) to effectively protect this
vulnerable group. It may be possible to effect this by rewording
the Bill (and by adding "duties") and draw together
all the powers under one heading. Presently the powers are dispersed
throughout the Bill. This is confusing and fails to prioritise
this important issue.
2.6 The success of the Scottish Act is due
in no small part on the duties imposed on local authorities. In
addition there was created a "Mental Welfare Commission"
which has oversight of both the PGO and the Local Authority. These
practical safeguards are a desirable feature which should be incorporated
into England and Wales legislation. This should also prevent a
two-tier system for the protection of vulnerable adults being
created in the UK.
3. Problems with the General Authority
3.1 The Law Society welcomes this provision
but with some caution. On the one hand it is a practical solution
to the day-to-day authority to make decisions. However, the Bill
provides insufficient safeguards. The general authority requires
a counter balance of corresponding responsibilities and safeguards.
There is anecdotal evidence that under existing financial powers,
abuse runs at approximately 20% of cases. Where there are no formalities
it is difficult to monitor the prevalence of abuse. The general
authority applies in hospitals, care homes, day centres, private
homes and any public place or setting where services are provided.
The scope for misuse of these powers is therefore great.
3.2 Overall there appears to be a lack of
guidance on the use of these powers. For example, there is no
definition of "care". It is those who are providing
"care" who make best interests decisions on behalf of
others without checks. Where is the line to be drawn? The nature
of the functions of care and the nature of the relationship needs
to be clarified to protect P and the "good Samaritan"
who comes to P's aid in good faith. This will need careful examination
and the practical implications explored. People will be empowered
to make decisions until such time they are challenged and so safeguards
and parameters do need to be set which are clearly identifiable.
As a minimum, it is suggested that any decision which is likely
to have a substantial impact on P is not one which should be made
under a general authority eg change of carer.
3.3 The Bill should emphasise that if the
general authority were to be used to consent eg, to medical treatment
this may not be lawful. Prescribing is a medical decision subject
to professional guidance. The general authority may, however,
be used to administer the prescription and to place a requirement
on the service provider to consult the carer. It is of course
open to an individual to nominate a donee to consent on
their behalf or make an advance statement should they wish to
3.4 There also needs to be an informal or
alternative disputes resolution mechanism. This would be of assistance
to carers where a dispute does not satisfy the tests for eligibility
for legal aid, or where an informal consideration is proportionate
to the problem in question. An example of ADR could be the extension
of the patient liaison advocacy services in relation to medical
treatment disputes, this would prevent the Court of Protection
being called upon for all matters where there is misunderstanding
and/or a low risk outcome. Dispute resolution other than Court
of Protection would also assist attorneys and service providers.
3.5 No other jurisdiction (as far as is
known) has a General Authority as part of their substituted decision-making
law. The Law Society would therefore suggest proceeding with caution
so as to find the correct balance between efficacy and safeguards.
The scope of a general authority in particular needs to be clearly
defined on the face of the Bill. This is because it would not
be realistic to expect informal carers to have regard to a code
3.6 The Law Society is of the view in any
event that Clause 62 (a) pledge credit etc be removed and the
test for reasonableness be an objective one. (See "reasonable
4. Problems with LPAs
4.1 It is not clear why more than one attorney
has to be appointed only jointly or jointly and severally. Some
donors would appreciate the option of appointing three or more
attorneys on the basis that any two could act. They may wish to
allow attorneys to act severally in relation to financial matters,
but jointly in relation to health matters, or vice versa. Our
understanding is that different donees can be appointed to take
different decisions. This is a desirable feature so long as disputes
are easily resolved. Otherwise the position of third parties such
as care homes may be uncertain if P has been placed in care but
the financial donee does not agree to the placement. This should
not necessarily prevent an attorney acting severally. The Law
Society would also want clarification on whether parts of an LPA
can be severed or subject to conditions by order of the court.
4.2 The Law Society recommend that any partial
revocation (Schedule 1, Part 4 , Clause 16) be effected by an
endorsement on the instrument rather than an attachment which
may become dislodged.
4.3 On registration, the Law Society take
the view that extreme caution should be taken where there are
no named persons for notification. The court must ensure that
the document has been registered with the donor's free-will. An
application for registration without persons named for notification
should be witnessed in the presence of the person who certifies
capacity and two other persons.
5. Alternative Dispute Resolution and the
Code of Practice
5.1 These topics are pervasive and are raised
throughout the submissions.
6. "Reasonable belief"
6.1 Throughout the Bill reference is made
to a decision maker's reasonable belief, for example Clause 6(1)a.
The Law Society takes the view that this is too subjective and
that the phrase should be altered throughout to read "the
person reasonably believes and it is objectively reasonable
to hold this view". This should help avoid arbitrary
decisions being made.
7. Assessment of Capacity
7.1. The BMA and the Law Society have already
published guidance on the functional assessment of capacity. Care
needs to be taken to ensure the certification procedure is not
too bureaucratic. The assessment of capacity is not necessarily
a question exclusively for Registered Medical Practitioners but
one which can at times be assessed by other suitably qualified
professionals such as psychologists or specialist nurses. The
practical aspects of formal assessment could be contained in code
of practice but the detail such as who can assess should be stated
in the Bill with a "sweeping up" clause so that the
Secretary of State can appoint assessors (to allow for emerging
8. High Court Powers and the new Court of
8.1 Modern legislation should be accessible
and therefore any powers which are granted to the Court of Protection
(Clause 37(1)) need to be specified. If not in the main body of
the legislation then by reference to a schedule.
8.2 Further, for this legislation to be
effective there needs to be practical consideration given to the
resources available to the new Court of Protection. This includes
the recruitment and training of suitably qualified judges.
9. Legal Advice and Assistance
9.1 The implications to the Legal Aid budget
are not discussed in the Draft Bill or explanatory notes. In Scotland
anyone who brings an application on behalf of an incapacitated
person will have a right to advice and assistance or to representation
costs as if they are the subject themselves. If the person without
capacity is eligible then so too will their representative, irrespective
of their personal means. This is how legal aid applied in UK to
litigation friends and we would suggest this would be a suitable
model to adopt. It is worth noting that Scottish practitioners
lament the loss of ABWOR in these type of proceedings and are
currently experiencing delays on applications for legal aid.
9.2 The stated objectives of this Bill will
be greatly undermined by the lack of availability of public funding.
The need for advance planning for the budget implications is brought
to Parliament's attention so that proper planning can take place
and an appropriate enhancement to the legal aid budget identified.
10. Human Rights compatibility
10.1 Compatibility has been certified but
we are of the view that there is a question as to whether best
interests decisions especially those made under a general authority
could conflict with human rights legislation. Obviously an advance
refusal of life sustaining treatment may put the state in breach
of Article 2. Also, the wide application of the general authority
may, in the Society's view give rise to claims under Article 8.
Any application to dispense with notification on registration
may prevent objections being validly raised which could offend
Article 6 as could the lack of appeal procedures on the appointment
of a deputy. Similarly Clause 20 should have prefix of "unless
the court orders otherwise" before the deputies' powers are
11. Interface with Mental Health Legislation
11.1 The general authority has a few restrictions
(Clause 7) eg not to restrict P's liberty of movements. However
a donee or a deputy can do "any act reasonably believed to
be necessary to prevent a serious deterioration in P's condition".
This may involve loss of liberty in the case of a "wandering"
person. It would be preferable for this clause to have greater
safeguards in the primary legislation. For example a requirement
that where the detention of a person is necessary for their safety
that this is part of an overall care plan agreed by health and
social work professionals. This is so that arbitrary or convenient
"locking away" is avoided.
11.2 As the Bill currently stands there
is scope for applying invasive treatment to a compliant person
(therefore in the case of mental health, there is no need for
compulsion under Mental Health Act). For example, ECT (electro-convulsive
therapy) which may be deemed in the patient's best interest by
some but not others, could be applied which could have serious
side effects. An example of a better safeguard would be the requirement
of a second opinion in circumstances other than for non-invasive
prescribing or treatment. Although invasive treatment is available
in a non-clinical setting, good practice means this should take
place in a hospital where a second opinion should not be difficult
11.3 Another area of overlap with Mental
Health legislation is the nearest relative/nominated person. Under
the Mental Health Act they have powers to apply for discharge
of a patient and to object to treatment on behalf of the patient.
The Lasting Power of Attorney could nominate an individual to
act as nearest relative in the event of compulsory treatment or
detention. This would provide consistency for the person with
impaired capacity. The Mental Health Bill or the Act needs to
be amended to recognise the LPA where a person has been nominated.
Where a patient is compelled but has capacity to make decisions
for himself, those views should be respected. That, however, is
beyond the scope of this Bill.
12. Better mutual recognition of international
12.1 The notes state that the Bill recognises
the Hague Convention of the International Protection of Adults
2000. However the mutual recognition of other jurisdictions does
not appear on the face of the Bill (unlike the Scottish Act).
This needs to be included in this legislation. Scottish lawyers
already have difficulty enforcing their powers in England and
Wales. This is a missed opportunity to embrace other jurisdictions.
13.1 Clause 44(3) specifies those who must
be consulted on changes to court fees. The Law Society suggest
this group should be wider as the issue relates to access to justice
on which there are strong views, especially from user groups.
14. Miscellaneous and Supplementary
14.1 Clause 30(6) specifies those to have
regard to a code practice. The Law Society is of the view this
should also apply to donees of a lasting power of attorney and
a court appointed deputy. It is not reasonable to expect persons
under a general authority to have knowledge of any code of practice
unless they are directly or indirectly remunerated. Therefore
any instrument granting the power or contract for services should
have an express term or should be endorsed so that "the deputy
or donee must have regard to the code of practice". This
should ensure that the decision-maker has notice of their duty
to have regard to a code of practice in the exercise of their