357. We noted that the draft Bill made no reference
to how, if implemented, those parts which are different from the
current Scottish legislation might affect those domiciled in one
jurisdiction if decisions were required on behalf of somebody
lacking capacity while in the other jurisdiction. Clearly this
issue is not restricted to the draft bill however we felt it important
to clarify the Government's intentions in this area. We raised
this during oral evidence given by Lord Filkin, Parliamentary
Under-Secretary of State, Department for Constitutional Affairs,
and Mrs Rosie Winterton, the Minister of State at the Department
of Health. We
gave a possible example of somebody living in England who had
made an advance decision to refuse treatment and appointed a donee
under an LPA who suffered a medical emergency and lost capacity
while on holiday in Scotland.
358. Ms Claire Johnston,
the Head of Legal Advice and Legislation Division of the Department
for Constitutional Affairs, described this as "one of the
areas where the draft Bill does not cover the ground and will
have to". .Matching provisions of those of the Scottish Act
would need to be added to the Bill before introduction. She intimated
that the issue of domicile could be complicated by considerations
of property ownership. But, as a general principle, the law of
the country in which the person concerned was habitually resident
should apply. Lord Filkin undertook to write to the Committee
on that point.
359. The response was contained in Lord Filkin's
letter dated 7 November 2003 to Lord Carter in which he said:
"our intention is to provide rules in the
Bill to match those in the Adults with Incapacity Scotland Act
2000 and to be consistent with the Hague Convention on International
Protection of Adults 2000. These provisions on private international
are technical and will (be) inserted into the Bill for introduction".
360. He added:
"in relation to Lasting Powers of Attorney,
the general position would be that an attorney appointed in England
would be able to act on the incapacitated adult's behalf in Scotland.
In general the law that applies would be that of the incapacitated
adult's habitual residence at the time when the LPA was made.
English law would be applied to matters such as whether the LPA
is valid. However, the manner in which the attorney can make his
decisions is likely to be governed by Scottish law.
"In relation to the application of the advance
directive (sic), the Scottish administrative and judicial authorities
generally would apply Scottish law. The authorities are empowered
to apply the law of England and Wales if it is in the adult's
best interests and if the circumstances demonstrate a substantial
connection to England and Wales. The Scottish authorities would
take an overall view of the situation. It may be more likely,
where it is an emergency situation, that Scotland would take a
pragmatic approach and apply its own law. That would mean the
doctor in charge doing what is reasonable in the circumstances
although the incapacitated adult's representative could apply
to court for an order if they wished to do so".
361. We were rather surprised that the Department
had not included in the draft Bill any consideration of the jurisdictional
implications of the different Scottish legislation for those domiciled
in one jurisdiction who suffer incapacity and require decisions
to be made while in the other. We acknowledge that legal complexities
might be involved in some cases and welcome the Department's confirmation
that they intend to provide adequately for this aspect in the
Bill when it is introduced.