I am very grateful indeed to Gordon Ashton OBE, the editor of Jordans’ Court of Protection Practice, and one of the prime movers behind the MCA 2005, for his permission to reproduce (in slightly modified form) his introduction to the recently published 2014 edition of the COPP, a work to which I contribute. His comments, which carry the weight of unrivalled judicial experience and reflection, appear even more prescient in light of the publication of the House of Lords Select Committee’s report upon the Act.
In my Introduction to the Court of Protection 2013, I commented on the fact that the work of the Court of Protection only represents the tip of a very large iceberg and the real benefits are evolving in society as carers and professionals learn to adopt the new principles of the Mental Capacity Act 2005. Yet I drew attention to several areas of concern exacerbated by the new age of austerity, namely severe restrictions on legal aid, increased cost of access to justice and insufficient funding for the Official Solicitor. I wondered whether we were developing a jurisdiction that looks impressive on paper but is inaccessible to those who need to use it. I was also concerned that cut-backs in public funding for care packages made attainment of best interests illusory and rendered the Court impotent except when resolving disputes within families. What does the Court do if only one far from satisfactory care option is available? In practice some progress may be achieved if there is a willingness to question and even seek reports as to the extent to which a wider range of options has been considered.
As I move further into retirement I find myself reflecting on what has been achieved, less defensive of our new jurisdiction and more willing to identify its failings.
Is the definition of ‘capacity’ wide enough?
To my surprise the inherent jurisdiction has not merely survived but also expanded to fill a newly recognised vacuum, namely adults who ‘are incapacitated by external forces – whatever they may be – outside their control from reaching a decision’. Does this indicate that our definition of lack of capacity is not wide enough? Is the retention of a diagnostic threshold an outdated approach inherited from the previous jurisdiction when this was the existence of a ‘mental disorder’? Some jurisdictions do not include a diagnostic threshold at all. I think there are dangers in this because it may allow a court to override decisions purely on their merits, although I have often expressed concern about the failure of our law to protect those who are vulnerable for reasons not strictly within our mental capacity jurisdiction. It is this vacuum that the High Court Judges are seeking to fill by re-inventing the inherent jurisdiction but that is only accessible in extreme cases. Should our diagnostic threshold perhaps become: “unable to make a decision due to an impairment of or disturbance in the decision-making process through internal or external factors beyond the control of the individual”?
This change may not be necessary. Until recently I have stated that the change of terminology (which now refers to both the mind and the brain) did not in practice represent a difference, but I am no longer sure about that. I wonder if we have continued to adopt too medical an approach, and whether the impairment or disturbance of the mind might be a consequence not only of internal factors but also external forces such as fear, oppression or overwhelming cultural pressures. That would bring some, if not all, of the cases now being dealt with under the inherent jurisdiction within the ambit of the Court of Protection. It is a shame to create a specialised court to deal with vulnerable adults and then have to supplement it elsewhere.
Has the Court adopted the right approach to ‘best interests’
When determining ‘best interests’ all relevant circumstances must be taken into account but a checklist is then provided with each aspect being weighed in the balance, although the weight may depend on circumstances. Empowerment clearly features but too much weight must not be given to any wishes of the individual because these merely form part of the balance. Does the checklist create more problems than it solves? I wonder if in its anxiety to avoid substituted judgment our Court has proved too willing to disregard the personal wishes (or even prior decisions) of the individual when applying this checklist? That may be a justifiable analysis of the legislation, but is it the direction that we would wish to be taking?
Capacity and best interests are inter-linked. When assessing capacity the emphasis is on empowerment and we only acknowledge a lack of capacity if we have to. This results in vulnerability for those with borderline capacity and especially elderly people encountering a decline in capacity, unless appropriate support is available. Then when we seek to act in the person’s best interests the emphasis becomes protection with personal wishes being marginalised. Should we be more willing to treat someone as incapacitated, but then more prepared to respect their autonomy? In that event the starting point could be substituted decision-making with the requirement for support written in to the ‘best interests’ criteria and the use of the full checklist reserved for those whose own choice could not be ascertained.
Does our legislation comply with the UN Convention on the Rights of Persons with Disabilities?
People with mental disabilities are vulnerable to neglect, abuse and exploitation so may need support, protection and empowerment. When you protect you take away personal autonomy, but more support means less need for protection and support can also result in empowerment. So is support the answer? Certainly Article 12 of the UN Convention emphasises the need for support in the exercise of legal capacity. In a debate organised by the Department of Philosophy at the University of Essex I lost the argument as to whether the Mental Capacity Act 2005 is compliant with the UN Convention, but that may simply indicate the difference of approach between the philosopher and the pragmatic judge.
We adopt a three stage approach to decision-making:
- people with capacity make their own decisions – that fulfils their legal capacity;
- people with impaired capacity are required to be supported in making decisions, and will not be treated as lacking capacity unless and until all appropriate support has been tried – that enhances their legal capacity;
- people who lack mental capacity have decisions made for them in their best interests. By definition they could not make decisions of their own even with support and this is the process whereby the law implements legal capacity.
The proposed legislation in Ireland would impose a three stage approach to the assessment of capacity. At the first stage a person may not be found to lack capacity unless they had a decision-making assistant, then at the next stage this would need to be a co-decision-maker and the final stage would recognise the need for an attorney or court appointed decision-maker. There are problems in this approach. How do you distinguish support from influence and when does this become undue? The supporter may become the effective decision-maker, because a decision can be influenced by the provision of selective information. What if the person providing support is motivated by self-interest? There are dangers in treating a decision as that of the individual when in reality it has been dictated by the ‘supporter’.
My experience working at the coal face is that it is necessary to have a system that is manageable and will work in practice. It is difficult enough deciding whether an individual lacks capacity on a decision and time specific basis, and the Irish solution of sub-dividing this into stages which must then be reviewed and revised at intervals seems unrealistic. If good practice is adopted there is in fact no real difference between the two approaches. In our system the support should be provided to the extent needed, but without the formality of an appointment, prior to the stage where a finding of incapacity is made.
I therefore remain of the view that our approach to capacity is compliant with the UN Convention but conclude that our approach to best interests does not comply because it enables the Court (and thus also the decision-maker) to impose an objective view as to what is best upon an incapacitated person who may have previously demonstrated a different choice.
How is our capacity jurisdiction evolving?
In 2013 the Supreme Court considered our legislation for the first time in the Aintree case. It troubles me that most of the appeals concern serious medical treatment and end of life decisions because these judgments will tend to shape the law in more mundane situations including financial management where perhaps a more practical approach is required. The next Supreme Court decision in Cheshire West will shortly clarify the meaning of a deprivation of liberty which will have extensive administrative implications. It will be interesting to see the views of the House of Lords Select Committee when these are reported later in the year. We were ahead of the game with our Mental Capacity Act but are perhaps now at a turning point where there is the opportunity to interpret the legislation in a manner that diminishes the need to rely upon the inherent jurisdiction and ensures that it complies with current international expectations. If we do not take advantage of this we may cease to be a leading jurisdiction in this field.
Gordon R Ashton OBE