Joint Committee on the Draft Mental Incapacity Bill Minutes of Evidence

Examination of Witnesses (Questions 580-599)


15 OCTOBER 2003

  Q580  Chairman: The presumption of capacity is clearly important, but in the example of someone who makes unwise decisions should there be a shift in the burden of proof? The Bill uses the common law principle of proof. Do you think in those cases there should be a shift in the burden of proof in determining incapacity?

  Mr Clements: This is completely off the top of my head, but I would have thought that would be completely untenable.

  Q581  Chairman: Why?

  Mr Clements: I think it would violate the European Convention on Human Rights, Article 1 of the First Protocol. You would then get into the situation of saying what you mean by an irrational decision. What was irrational 150 years ago is now considered sane.

  Q582  Chairman: But even now under common law judges have to make that sort of judgment.

  Mr Clements: As far as I know every common law jurisdiction has a presumption of capacity for adults and I would have thought that is true of the continental jurisdictions as well.

  Q583  Baroness Wilkins: This law would be very dependent on the codes of practice that we have not seen yet. Do you think the draft Bill is too dependent on them?

  Mr Clements: Yes, we do. That has two aspects to it. Our view is that inevitably a lot of this would have to be in the Code of Practice. The Code of Practice that we have in mind is a bit like the Scottish system, although that is quite dense, but the codes of practice that come within the Disability Discrimination Act would be very helpful indeed in giving real life situations. We do believe that there are a number of areas where the detail could be in the Bill rather than having to wait to see what is in the code. The thing we most regret is the fact that in order to understand this Bill we would have to see the draft code. In fact—and I do not even want to get drawn into this unless you want to—we would have to see the Draft Mental Health Bill as well because these three things have got to mesh. This is a Bill that is very much dependent upon the code.

  Chairman: That might be a Bill too far!

  Q584  Baroness Wilkins: Could you say where in the Bill you would like the code to be put instead?

  Mr Clements: We have problems with the general authority. The general authority effectively allows anybody that provides care, which is not defined, to do anything that they think effectively is reasonable with a few exemptions. There is a degree of a lack of proportionality there in that we have considered that perhaps there should be some limit on the amount of property that somebody could divest, whether they could sell a house or not and certain things like that. Certain limitations on that general authority we think should be placed in the Bill rather than in the code because the general authority as it stands is almost a blank cheque.

  Stephen Hesford: You have mentioned the Mental Health Act/Bill and it is an area that we were not otherwise intending to cover, but it is an area we covered previously. It is an area that we may have to return to. Could I direct you to clause 27. Bearing in mind your comment and the Chairman is right that we cannot go down the road of examining the Mental Health Bill—

  Chairman: There is not one at the moment.

  Q585  Stephen Hesford: There have been various draft Bills, there certainly is an Act in existence at the moment which may or may not inform the process. Do you have any comments about clause 27?

  Mr Clements: Only that this is a classic example of where these two pieces of law have got to mesh. In this situation you might have certain groups excluded from both forms of protection. I have seen the comment on that and that is a drafting matter that would have to be dealt with in the sense of which piece of legislation it would fall within. We are particularly concerned and I am sure that those drafting the Bill are also very aware of problems with clause 7 which is restrictions on liberty because it does authorise people to be detained in exceptional circumstances. Is that something that is to be dealt with by the Mental Health Act or is it something that is going to be dealt with by the Incapacity Act? We have had a case in the European Court of Human Rights which was known in the House of Lords as the Bournewood case and you have what is called the "Bournewood gap", under what piece of legislation will somebody who is mentally incapable be incapable of being detained? This legislation seems to suggest that it would be possible to detain somebody with a mental incapacity under clause 7, but it describes a procedure. Article 5 of the Convention says there should be a procedure prescribed by law. It also does not deal with the public-private point of view. If it is a local authority that is detaining somebody, maybe locking them in their residential home because they are short staffed and there is an emergency then it would be covered here, but that would be a violation of Article 5 because it is a local authority. If it was a private authority, which is not covered by the Human Rights Act, then it would not. These are areas which are just difficult drafting areas, these concepts have to be dealt with by these two Bills going in tandem.

  Q586  Stephen Hesford: Whilst you have described a situation as a potential problem of the Act not being symbiotic but running in parallel and leaving a potential working gap, my question was have you any comment on clause 27? The answer may be no.

  Mr Clements: I have not had any particular insight into that. I have seen evidence that has been given to this Committee from your session with the Scottish delegates who point to that as being a lacuna, that there could be a big problem and I agree with that insofar as I am not a mental health expert.

  Q587  Chairman: The situation that you have been describing is one where you see this Bill becoming law, however amended by our work and the Mental Health Act 1983 being in force alongside that. That is the situation you are describing, is that right? We are not talking about mental health Bills which are drafted or not drafted, but the situation could be that this Bill, however amended, and the Mental Health Act 1983—

  Mr Clements: I always assume that the Government will give more priority to the Mental Health Bill than this Bill, I fear to say and therefore the Mental Health Bill would come into force before this one.

  Q588  Chairman: If it did not, if the situation is that we had this Bill and the Mental Health Act of 1983, what is the problem in practice?

  Mr Clements: The problem in practice would be the problem identified by the Bournewood situation and it will have to be addressed no matter what the outcome and the Government has committed itself to addressing that issue.

  Q589  Baroness Fookes: You clearly disapprove of general authority as currently drafted since you referred to it as a "blank cheque". Do you envisage certain restrictions being put upon it and, if so, what might they be?

  Mr Clements: I have to restate continually that The Law Society warmly welcomes this Bill. Like everybody else, we have views about what we would also like to see in it. We are concerned about the general authority because there is no counter-balancing public law protection of rights and so if somebody abuses the general authority there seems to be no effective remedy. If there is to be no public protection provisions in this Bill then we would not like to see what could potentially be a blank cheque and to have some restrictions on the amount of money that could be given away, for example. Potentially you could give a house away and that clearly is not the intention here because I think this is meant to deal with the very real problem that carers have day-to-day when dealing with an elderly relative who has got some money and you cannot go through the paraphernalia of an application to the court. We would like it to be somehow kept on a local, small level and we do not see that the code can do that. So we would like to have some restrictions on the general authority in terms of the quantity of assets that can be divested and in our submission we say that it would not be necessary to pledge credit for instance, to say that their credit card will do all this: that there are limitations on this authority.

  Q590  Baroness Fookes: Could you give us any more detail at a later stage, because I imagine that is not the only thing you would be concerned about or would you wish to make those who exercise this general authority more answerable in some way? Because this is a draft Bill anyone could suggest anything they like to improve it.

  Mr Raymond: I think that what we would hope for is—this is in an ideal world and we do not live in an ideal world—some form of monitoring of what people do in the same way that our Scottish colleagues do. They have a public guardian and the public guardian has the ability to step in even if he only has a belief that something may not be quite right. He does not have to have evidence that things are wrong or that there is financial abuse, but he has the ability to say if he thinks that things are not as they should be and he has cited some cases to me. One of them was where the patient with a large estate was living in secondhand clothes which were acquired for him from friends and relations whereas the person with responsibility for managing the affairs was running around in a brand new German motorcar. There was a clear indication that things were not right but there was no evidence that the money to buy the car had come from the patient's estate. That ability to investigate and require accounts would be ideal. In the sense that the general authority confers the ability to spend the patient's money or pledge credit, I think we would be looking for that to be removed and replaced by something where the only ability to spend the money came from the attorney, so the attorney would be in charge of the finances and it would be one person who is responsible for the money and property side of things, whereas the general authority was relating really to care and health matters.

  Q591  Chairman: You referred to the public guardian, but the points under clause 48, the "Functions of the Public Guardian", are you saying that those are not wide enough, that they should be given more power?

  Mr Raymond: I am saying that under the powers given to the public guardian in Scotland he has the ability to investigate circumstances and to work with   local authorities and the Mental Welfare Commission where circumstances suggest that things are not right. Under our system there has to be clear evidence that there has been impropriety and it is not the same, you have to go to the court, which is an expensive process and what we are trying to do is make it more workable for every day problems that arise.

  Q592  Chairman: It does say that one could confer on the public guardian other functions in connection with this Act by regulation. That might meet your concern.

  Mr Raymond: Yes. I think what I am really concerned about is that we should not have a situation where you either had to go to the court or you could not have the circumstances investigated and there should be a duty for the public guardian to investigate. It is left a bit in the air at the moment.

  Q593  Baroness Fookes: But you are looking for some person or some power to oversee those who exercise general authority?

  Mr Raymond: To ensure that we do not have the amount of abuse that we have at the moment, yes.

  Q594  Huw Irranca-Davies: I have two points I would like to ask you about. First of all, at the beginning of this particular discussion I was curious as to whether under section 6(6), where it says, "The general authority is subject to the provisions of this Act and, in particular, to section 4 (best interests)" part of the solution to what you were seeking would be if that were replaced by the phrase ". . . in particular, to section 4 (general principles)" and to what extent that would have an impact on what you are seeking. I think you have answered that. You were seeking absolutely concrete tangible limitations in some ways which brings me on to the second possibility. Those will fluctuate over time and by necessity goes back to our earlier discussion about where the soft law in the Code of Practice lies and where the hard law in the face of the Bill lies. If there was something within section 7, "Restrictions on the general authority", which laid that out there would not be limitations determined by the sub-agent, that would fluctuate from time to time and these will be set out in codes of practice. Would that then, if it put the rest of the detail into the codes of practice, be sufficient for what you were seeking?

  Mr Clements: The Law Society has always welcomed the general authority on the basis that there would also be a public law anti-abuse provision and we are now being asked to look at a Bill which has one without the other and we are not surprised that a number of organisations are concerned because it appears slightly lopsided. We are incredibly eager for this Bill to become law and so we would try to remedy that if we cannot have public law provisions by the sort of mechanism you are talking about. There are procedures for particular orders in the Court of Protection provided they are under £16,000 or something, so we are clearly familiar in court proceedings that courts have jurisdiction for certain figures, so it must be capable, if the Government does not wish to publish a Bill for public protection measures, to bring in the mechanisms, as you are suggesting.

  Q595  Baroness Knight of Collingtree: This was following on something that Baroness Fookes asked you and the way you answered it. Of course we hang on your every word, but there are occasions when you puzzle us because in your submission about decision-makers, you suggest that throughout the Bill, the phrase should read, "the person reasonably believes and it is objectively reasonable to hold this view". Are you asking for two lots of people, one person to make the decision who reasonably believes, but then how can you say, ". . . and it is objectively reasonable to hold this view"? If one person makes the decision, are you asking for another one to come along and say, "Well, wait a minute, I am not sure that objectively that is reasonable"?

  Mr Clements: Yes, that is a very good point. What we are merely asking is that this Bill be drafted consistently with other Bills. In the Disability Discrimination Act, that is the phrase that is used, but if somebody wants to discriminate, then they have to justify it, but they must also believe it to be necessary and objectively it has got to be reasonable. I could say that I am acting for my mother and it really would make her very happy if I had a new Ferrari. Now, I honestly believe that and she loves me dearly, so that would be something that I honestly believe and for the Act that would be good enough, but what we are saying is that it should also be objectively reasonable to somebody else. Now, that is not new. It is a drafting mechanism that is already used and, as I said, the Disability Discrimination Act uses that precise wording.

  Lord Rix: You mean you get a Jaguar instead, do you!

  Q596  Chairman: If you say it is objective, there must be some criteria. There must be some criteria by which you measure the objectiveness.

  Mr Clements: Yes, one would hope that the code of practice would include that as it does in the Disability Discrimination Act. The examples in the DDA are saying, "I think it is quite reasonable to refuse these people access to a restaurant because they look strange and they would upset my other clients". Now, the person will honestly believe that, but objectively that may not be measurable. I understand that it is a difficult test, but if all somebody has to go into court and say is, "I honestly believed what I was doing", then that is not an adequate safeguard for somebody who has no capacity.

  Q597  Baroness Knight of Collingtree: But do you not reach your reasonable decision objectively?

  Mr Clements: I see what you are saying. I do not honestly think that it is actually an incongruous concept. Somebody must believe what they are doing, but that cannot be sufficient. Sincerity alone is not a defence in law.

  Baroness Knight of Collingtree: Well, I can only put on record that I think it is a rather difficult thing to try to do.

  Q598  Mrs Browning: I think we all understand in this place that if you are too prescriptive in what you write into the face of the Bill, you end up with some very difficult problems later in the way that Bill is implemented and then challenged. Is it not the case that those two words, which we have heard quite a  bit of this afternoon, "reasonable" and "proportional", are the very oxygen by which lawyers make their money because it is usually the interpretation of those two words that brings a case to court in the first place?

  Mr Clements: But it is also the oxygen of society. In the pluralistic society people have got to be allowed a very large margin in what they do, "what is reasonable", but in some areas where you have very vulnerable people, that is not good enough to be sincere and it has also got to be objective. There is some higher standard that in certain situations the court must account for.

  Mrs Browning: I am just testing you!

  Q599  Baroness McIntosh of Hudnall: But are we not being told that this is wording which is used elsewhere in legislation which has similar objectives and that we may want to challenge the use of that wording in general terms, but this is not an appropriate moment in time to do that? What we are being asked to consider is the compatibility between the situation, say, of people who are protected by the Disability Discrimination Act and the situation of those who would be protected under this Act and that there should be some measurable relationship between the standards of proof that are used in both situations. Is that not so?

  Mr Clements: Yes, I wish I had said that!

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