Mentally incapacitated adults and decision-making: The English perspective

International Journal of Law and Psychiatry

Volumn 20, Issue 1, 1997, Pages 59-75

  Hale, Brenda ^a  

^a Royal Courts of Justice   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ADULT; DECISION MAKING; HUMAN; LAW; MENTAL DEFICIENCY; REVIEW; UNITED KINGDOM;

EID: 0030942354     PISSN: 01602527     EISSN: None     Source Type: Journal    
DOI: 10.1016/S0160-2527(96)00023-4     Document Type: Article

References (129)

1. Law Society's Mental Health Subcommittee. Decision Making and Mental Incapacity: A Discussion Document, London The Law Society 1989.
2. [1990] 2 AC 1.
3. Nevertheless, the clear statement to this effect by Lord Donaldson MR in Re T (Adult: Refusal of Treatment) [1993] Fam 95. at p 103, was apparently unknown to those advising the patient's doctor in Re S (Hospital Patient: Court's Jurisdiction) [1995] Fam 26, affirmed [1996] Fam 1, CA.
4. So held the House of Lords, disagreeing with the Court of Appeal, which had invented a jurisdiction to give approval.
5. [1957] 1 WLR 582, a case concerning unmodified ECT: the jury were directed that a doctor is not liable in negligence if he treats in accordance with a responsible body of medical opinion, even if the preponderance of such opinion would take a different view.
6. Whether under the inherent jurisdiction of the High Court or the Children Act 1989.
7. Since then, the issue has been addressed to a limited extent in Re T (Adult: Refusal of Treatment) [1993] Fam 95; and more directly in Re C (Adult: Refusal of Medical Treatment [1993] 1 WLR 290; Cambridgeshire County Council v R (An Adult) [1995] 1 FLR 50; and B v Croydon District Health Authority [1995] 2 WLR 294; in each case the approach has relied heavily upon the provisional proposals of the Law Commission in LCCP No 128, Mentally Incapacitated Adults and Decision-Making - A New Jurisdiction, London HMSO 1993, paras 3.19-3.35: see p 6 below.
8. This is sometimes referred to as the parens patriae jurisdiction, but it did not originate or develop in the same way as the jurisdiction over infants: see B Hoggett, "The Royal Prerogative in relation to the Mentally Disordered: Resurrection. Resuscitation, or Rejection?" in MDA Freeman (ed), Medicine, Ethics and the Law, London, Stevens, 1988.
9. Among those to draw attention to this phenomenon was LO Gostin. "The Merger of Incompetency and Certification: The Illustration of Unauthorised Medical Contact in the Psychiatric Context" (1979) 2 Int J Law & Psych 127. Cf now Re C (Adult: Refusal of Medical Treatment) [1993] 1 WLR 290, where a schizophrenic compulsory patient with a gangrenous foot was held competent to refuse a below knee amputation; and B v Croydon District Health Authority [1995] 2 WLR 294, where it was held that a compulsory patient whom the trial judge had held competent to refuse treatment could nevertheless lawfully be tube-fed against her will because this was treatment "for" her mental disorder and thus now expressly authorised by the Mental Health Act 1983, s 63; the Court of Appeal upheld the latter part of the decision but expressed doubt about whether she was indeed competent to make a "true choice" in relation to the treatment because of her compulsion to self-harm; see page 6 below.
10. C Unsworth, The Politics of Mental Health Legislation. Oxford OUP 1987.
11. Mental Health Act 1959, s 34(1).
12. Section 5(1).
13. Department of Health and Social Security. Review of the Mental Health Act 1959, London HMSO 1976; Department of Health and Social Security and others, Review of the Mental Health Act 1959, Cmnd 7320, London HMSO 1978; Reform of the Mental Health Legislation, Cmnd 8405. London HMSO 1981.
14. Department of Health and Social Security. Review of the Mental Health Act 1959, London HMSO 1976; Department of Health and Social Security and others, Review of the Mental Health Act 1959, Cmnd 7320, London HMSO 1978; Reform of the Mental Health Legislation, Cmnd 8405. London HMSO 1981.
15. Department of Health and Social Security. Review of the Mental Health Act 1959, London HMSO 1976; Department of Health and Social Security and others, Review of the Mental Health Act 1959, Cmnd 7320, London HMSO 1978; Reform of the Mental Health Legislation, Cmnd 8405. London HMSO 1981.
16. The 1959 Act and amendments passed in 1982 were consolidated in the Mental Health Act 1983, the legislation currently in force.
17. Particularly influential were two studies prepared for MIND (the National Association for Mental Health) by LO Gostin, A Human Condition: Volume 1, The Mental Health Act from 1959 to 1975: Observations, Analysis and Proposals for Reform, London MIND 1975, and Volume 2, The Law Relating to Mentally Abnormal Offenders: Observations, Analysis and Proposals for Reform, London MIND 1977.
18. Long-term compulsory admission to hospital for treatment and reception into guardianship in the community were reserved to people suffering from mental illness, psychopathic disorder, or "mental impairment" (whether significant or severe), see 1983 Act, ss 3(2) (a) and 7(2) (a); mental impairment is a state of arrested or incomplete development of mind which includes significant or severe impairment of intelligence and social functioning and "is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned," see 1983 Ac. s 1(2): although the meaning of "seriously irresponsible conduct" could be wider, the undoubted aim was to exclude people with learning disabilities unassociated with any behavioural disorder.
19. These are now limited to requiring the patient to live at a specified place (but not to taking him there); requiring him to attend at specified places and times for medical treatment, occupation, education, or training (but not consenting to treatment on his behalf); and requiring access to him be given to specified people (but not protecting him from access by others): see 1983 Act. s 8(1).
20. Law Com No 231, Mental Incapacity, London HMSO 1995, paras 2.31-2.39.
21. LCCP No 119, Mentally Incapacitated Adults and Decision-Making: An Overview, London HMSO 1991, contains a short review of developments in Canada, Australia, New Zealand, Scandinavia, Austria and Germany.
22. The Law Commissions Act 1965 established the Law Commission for England and Wales and the Scottish Law Commission for Scotland; the Scottish Law Commission has published DP No 94, Mentally Disabled Adults: Legal Arrangements for Managing their Welfare and Finances, Edinburgh HMSO 1991, DP No 96, Mentally Disordered and Vulnerable Adults: Public Authority Powers, Edinburgh HMSO 1993; and Scot Law Com No 151 Report on Incapable Adults, Edinburgh HMSO 1995.
23. Law Com No 185, Fourth Programme of Law Reform, London HMSO 1989. Item 9.
24. LCCP No 119, op cit.
25. Ibid. para 4.27.
26. LCCP No 128, op cit.
27. LCCP No 129, Mentally Incapacitated Adults and Decision-Making - Medical Treatment and Research, London HMSO 1993.
28. LCCP No 130, Mentally Incapacitated Adults and Other Vulnerable Adults - Public Law Protection, London HMSO 1993.
29. In relation to psychiatric patients, on the other hand, the legislative trend is towards greater powers of control: see the Mental Health (Patients in the Community) Act 1995.
30. Law Com No 231, op cit: references below to the draft Bill are to Appendix A to that report.
31. Draft Mental Incapacity Bill, clause 2(6).
32. Generally known as the status, outcome or function tests: see LCCP No 119, op cit. paras 2.30-2.40.
33. Draft Bill, clause 2(1) (a).
34. Clause 2(2); the arguments for and against having any mental disability threshold in addition to the cognitive capacity test are finely balanced; see LCCP No 128, paras 3.7-3.18, and cf D Carson, "Disabling Progress: The Law Commission's Proposals on Mentally Incapacitated Adults' Decision-Making" [1993] JSWFL 304, at pp 311-314; the concept of mental disability rather than mental disorder was chosen and defined so as to avoid the "mind-set" that "mental disorder" in the 1983 Act is confined to psychiatric disorders meriting psychiatric treatment; see Law Com No 231, op cit. paras 3.10-3.12.
35. Clause 2(2); the arguments for and against having any mental disability threshold in addition to the cognitive capacity test are finely balanced; see LCCP No 128, paras 3.7-3.18, and cf D Carson, "Disabling Progress: The Law Commission's Proposals on Mentally Incapacitated Adults' Decision-Making" [1993] JSWFL 304, at pp 311-314; the concept of mental disability rather than mental disorder was chosen and defined so as to avoid the "mind-set" that "mental disorder" in the 1983 Act is confined to psychiatric disorders meriting psychiatric treatment; see Law Com No 231, op cit. paras 3.10-3.12.
36. Draft Bill, clause 2(2) (a).
37. Clause 2(3).
38. Clause 2(2) (b): for a similar approach sec Re C (Adult) (Refusal of Treatment) [1994] 1 WLR 290.
39. Clause 2(4).
40. Clause 2(1) (b).
41. Eg with a stroke victim; see Re S (Hospital Patient: Jurisdiction) [1995] Fam 26, affirmed [1996] Fam 1, CA.
42. Clause 2(5).
43. Clause 1.
44. LCCP No 119, op cit. paras 4.22-1.23; LCCP No 128, op cit. paras 2.14-2.15; Law Com No 231, op cit. paras 3.24-3.37.
45. LCCP No 119, op cit. paras 4.22-1.23; LCCP No 128, op cit. paras 2.14-2.15; Law Com No 231, op cit. paras 3.24-3.37.
46. LCCP No 119, op cit. paras 4.22-1.23; LCCP No 128, op cit. paras 2.14-2.15; Law Com No 231, op cit. paras 3.24-3.37.
47. See pp 9 and 12 below.
48. Re D (J) [1982] Ch 237.
49. Re C (A Patient) [1991] 3 All ER 866.
50. Draft Bill, clause 3(1); people other than courts comply if they do or decide what they reasonably believe to be in the best interests of the person concerned, clause 3(3).
51. The Commission concluded that there are serious difficulties with legislating for either a right of decision or a right of consultation in any statutorily defined "next of kin"; too often such a person is not the one most closely concerned with the care and welfare of the person without capacity: in cases of supervening lack of capacity, the person may well have wished to nominate someone to be consulted rather than as an attorney to make decisions on his behalf; these concerns apply with particular force to mentally disabled young adults who are estranged from one or both parents and to patients with terminal incapacitating conditions such as AIDS-related illnesses.
52. Draft bill, clause 3(2); for attorneys, see p 12 below and for managers, see p 14 below.
53. Although financial matters are not covered by this provision, the Bill clarifies the right to spend money for this purpose and to be reimbursed from that person's resources; see clause 4(2). It also extends the powers of financial institutions to allow limited sums to be withdrawn for the benefit of an account holder who lacks capacity; see clause 4(4) and schedule 1.
54. Clause 4(1).
55. Clause 5.
56. Clause 31.
57. The Report of the House of Lords Select Committee on Medical Ethics, Session 93-94, HL Paper 21-I, London HMSO 1994, at para 264, concluded that legislation for advance directives was unnecessary, because both medical ethics and case law were moving in the direction of recognising the duty to comply with them. However, once the existing power to act is placed upon a statutory footing, provision must also be made for the existing exception where the patient has refused such action in advance.
58. Re J (A Minor) (Child in Care: Medical Treatment) [1993] Fam 15; see also R v Cambridge District Health Authority, ex parte B. [1995] I WLR 898.
59. Re T (Adult: Refusal of Treatment) [1993] Fam 95, at pp 115-116; applied in Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290. The British Medical Association has recently advised doctors to this effect, Advance Statements about Medical Treatment, London British Medical Journal Publishing Group 1995.
60. Draft Bill, clause 9(1).
61. Clause 9(2).
62. Clause 23(a).
63. Clause 9(7) (b).
64. Clause 9(7) (a), (8); this is based on public policy, principally the effect upon staff and other patients of withholding even the most basic steps to ensure comfort and cleanliness.
65. Clause 9(3); as to the latter, cf Re S (Adult: Refusal of Treatment) [1993] Fam 123; the Commission, Law Com No 231, op cit. para 5.25. did "not accept that a woman's right to determine the sorts of bodily interference which she will tolerate somehow evaporates as soon as she becomes pregnant" but did consider that a woman's views might well change when she became pregnant and that women of child-bearing age should therefore address their minds to the question if they wished to make advance refusals of treatment.
66. Clause 9(4) (a).
67. Clause 9(6).
68. See p 12 below.
69. Re GF (Medical Treatment) [1992] 1 FLR 293.
70. Clause 7(1), (2), (3); the Commission had in mind, eg, the risky donation of regenerative tissue.
71. Approved by the Secretary of State for Health; clause 8(2).
72. Clause 8(1).
73. Re SG (Adult Mental Patient: Abortion) [1991] 2 FLR 329.
74. Mental Health Act 1983, s 58(1) and Mental Health (Hospital, Guardianship and Consent to Treatment) Regulations 1983, SI No 1983/893, reg 16(2); for this purpose the definition of mental disorder is the same as that in the 1983 Act; see draft Bill, clause 8(4).
75. Clause 8(3), (5).
76. Clause 8(6).
77. [1993] AC 789; see also Frenchay NHS Trust v S [1994] 1 WLR 601; Swindon and Marlborough NHS Trust v S, The Guardian, 10 December 1994.
78. Ibid. p. 897.
79. Draft Bill, clause 10(1), (2); this also provides for approval by an independent doctor appointed by the Secretary of State, but only if at some future time the Secretary of State provides for this, either in general or in particular circumstances, by statutory instrument.
80. Clause 10(3); see p 7 above.
81. Clause 10(4); the power to use such machinery in order to legalise what would otherwise be illegal could be considered controversial, but given the constraints upon the legislative timetable might paradoxically result in a greater degree of protection where there is great temptation to resort to such procedures for the good of others; an example might be elective ventilation.
82. Clause 11(1).
83. Clause 11(1) (b), (2), (3), (7); Schedule 2 deals with the constitution of the Committee; NHS hospitals are required to have research ethics committees which in practice might be able to fulfil this role, but they are non-statutory bodies.
84. Clause 11(3).
85. Clause 11(1) (a).
86. Clause 11(4).
87. Clause 11(5).
88. Enduring Powers of Attorney Act 1985.
89. Draft Bill, clause 16(1) (a); the response on consultation was almost universally in favour, but the House of Lords Select Committee on Medical Ethics, op cit. did not favour the extension of proxy decision-making; its objections, however, could equally well apply to financial decision-making, where the concept is now well-established; see Law Com No 231, op cit. para 7.7.
90. Clause 16(1) (b); it would also have to be in the prescribed form, which would contain the obvious dire warnings about its nature and effects; see clause 13.
91. Clause 16(3) (a), (b), (c).
92. Clause 16(3) (d), (5).
93. An enduring power of attorney must be registered when the donor is or is becoming incapable, and at that stage relatives must be notified but have only limited rights to object; see S. Cretney. G. Davis, R. Kerridge and A. Borkowski, Enduring Powers of Attorney: A Report to the Lord Chancellor, 1991.
94. Clauses 12(4) and 15(1).
95. Clause 15(3).
96. Clause 12(3).
97. Clause 15(6) (b).
98. Clause 17(3) (a), (b), (5).
99. Clause 17(6).
100. Clause 17(3) (c).
101. The Report recommends the establishment of a new specialist superior court of record, to be known as the Court of Protection, staffed with nominated judges from all levels of the present civil judiciary, so that cases can be heard locally at the right level, and with its own specialist procedures and practices.
102. See p 8 above.
103. Clause 23(a).
104. Clause 47(3).
105. Clause 47(1); relevant factors would be his connection with the person concerned, his reasons tor the application, the benefit it would bring to the person concerned, and whether that benefit could be obtained in any other way, clause 47(2).
106. Clause 24(1).
107. Clause 24(2).
108. Clauses 25, 26, 27.
109. Cf Re C (Mental Patient: Contact) [1993] 1 FLR 940 and Cambridgeshire County v R (An Adult) [1995] 1 FLR 50; Re S (Hospital Patient: Court's Jurisdiction) [1995] Famn 26, affirmed [1996].
110. This appears to be the experience under the New Zealand Personal and Property Rights Act 1988, which is probably the closest parallel to these proposals.
111. The most recent study was carried out by the National Audit Office, Looking after the Financial Affairs of People with Mental Incapacity. HC 258, London HMSO 1994.
112. Draft Bill, clause 28.
113. Law Com No 231. op cit. paras 8.36-8.40.
114. In proceedings under the Bill, the court would have power to make an order for admission for assessment or for treatment on the same criteria and with the same effects as the equivalent admissions under the 1983 Act; draft Bill, clause 26(4), (6).
115. The Commission did make a few minor recommendations, eg that only a social services department, and not as at present a private individual, should be appointed guardian, but these are not included in the draft Bill as the Government has the matter under review in the context of new legislative and other provisions for patients discharged from hospital: see Law Com No 231, para 9.47: Department of Health, Legal Powers on the Care of Mentally Ill People in the Community, August 1993; Department of Health, Mental Health Act Guardianship: A Discussion Paper. October 1994; Mental Health (Patients in the Community) Act 1995.
116. LCCP No 130, op cit. para 5.2.
117. Law Com No 231, op cit. paras 2.42-2.43.
118. Draft Bill, clause 36(2).
119. This is a technical term referring to the majority of social services that local authorities either must or may provide; see draft Bill, clause 36(3) and National Health Service and Community Care Act 1990, s 46(3).
120. Draft Bill, clause 37: in practice, the Commission were told that social services authorities already regard themselves as under a duty to investigate such allegations and they already have a statutory duty to assess the need for community care services.
121. Clause 38; there is an existing power in relation to mentally disordered patients in the Mental Health Act 1983, s 115.
122. Clause 39; the nearest equivalent is in the Mental Health Act 1983, s. 135(1).
123. Clause 40; there is no equivalent for adults at present; for children see Children Act 1989, s 43.
124. Clause 41; this is to replace the powers currently contained in the Mental Health Act 1983, s 135(1) and the National Assistance Act 1948, s 47 (as amended by the National Assistance Amendment Act 1951).
125. Clause 41; this is to replace the powers currently contained in the Mental Health Act 1983, s 135(1) and the National Assistance Act 1948, s 47 (as amended by the National Assistance Amendment Act 1951).
126. Law Com No 231, para 2.51.
127. Largely because the present law on advance refusals is controversial with some predominantly religiously based groups, who apply the term passive euthanasia to the patient's decision to refuse life-saving treatment; see, e.g., Melanie Phillips, "Rage, rage against the dying of our Rights." The Observer, 5 November 1995. There has also been a press campaign against the Law Commission, stemming principally from opposition to the changes to divorce law and procedure contained in the Family Law Act 1996; see, e.g., William Oddie, "Legal Commissars subverting Family Values," Daily Mail, 1 November 1995.
128. Largely because the present law on advance refusals is controversial with some predominantly religiously based groups, who apply the term passive euthanasia to the patient's decision to refuse life-saving treatment; see, e.g., Melanie Phillips, "Rage, rage against the dying of our Rights." The Observer, 5 November 1995. There has also been a press campaign against the Law Commission, stemming principally from opposition to the changes to divorce law and procedure contained in the Family Law Act 1996; see, e.g., William Oddie, "Legal Commissars subverting Family Values," Daily Mail, 1 November 1995.
129. Written Answers in both Houses of Parliament, 16 January 1996.